Estragon v. Godot, or, Still Waiting For The Big Decisions
While there are no small cases, in relative terms, the cases decided by the Supreme Court today seem underwhelming compared to the as-yet undecided cases. No “major” case opinions today. Still remaining on the heavily back-loaded 2014-2015 Term’s docket as of today are:
- Arizona State Legislature v. Arizona Independent Redistricting Commission: is an extralegislative commission an appropriate body to draw Congressional districts?
- Glossip v. Gross: does use of the three-drug cocktail described in the execution protocol of a large majority of states that engage in capital punishment violate the Eighth Amendment’s ban on cruel and unusual punishment?
- Johnson v. United States: does “ex-con with gun” validly count as a “violent felony” under the Armed Career Criminal Act when the gun is not actually being used for anything?
- King v. Burwell: may citizens of PPACA-opt-out states receive Federal subsidies to their PPACA health insurance premiums and, by extension, if not, may they opt out of PPACA’s mandate?
- Obergefell v. Hodges: does the Fourteenth Amendment require issuance or recognition of same-sex marriage licenses?
- Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc.: are disparate-impact housing claims cognizable under Federal anti-discrimination law?
- Utility Air Regulatory Group v. Environmental Protection Agency (also known as Michigan v. EPA): to what degree must the EPA consider costs to utility providers when setting pollution regulations?
Photo by DonkeyHotey 
Today’s biggest opinion is probably Horne v. Department of Agriculture, which requires civil compensation for government-mandated crop-stabilization seizures of product. The decision will make agricultural price-stablization measures much more expensive and awkward for governments, whether federal or state, to implement.
The case deals with a raisin reserve, established and maintained by the government. Raisins are put in the reserve by the government, so the product can be rationed out to the market throughout the year, keeping the price stable, rather than rising and falling with the vagaries of the market and the agricultural season. The practice was held unconstitutional: individual growers should get monetary compensation when their crops go into the reserve rather than directly to market.
The bon mot of the day goes to Justice Clarence Thomas’s dissent concurrence in this case. Thomas felt that the program, contrary to the majority’s evaluation, does not advance a significant public purpose, so he would have ruled that “…having the Court of Appeals calculate ‘just compensation’ in this case would be a fruitless exercise.” Dissent slip op., at 1.
…Now you know why lawyers tend to get married later in life.
Edit: I should have added, before publication, the rest of today’s actual opinions. Which are:
- Kimble v. Marvel Entertainment: Spider-Man is cool. Also, an obscure precedent does not allow a patentholder to continue receiving royalties from a licensee even if the contract between the licensee and the patentholder provides for payments after expiration of the patent, for astonishingly arcane legal reasons. Contains a wan and strained reference to the “Spider-Man Song” at Slip Op., pg. 2, which is by way of saying that I believe Justice Elena Kagan is capable of much better judicial jokemaking than that.
- Kinglsey v. Hendrickson: An objective, rather than a subjective, standard applies for unreasonable force claims under 42 USC § 1983 in pretrial detention situations. (Kinglsey was being held in a jail and got tased during a dispute with a custodial officer.)
- Los Angeles v. Patel: Municipal law requiring hoteliers to keep guest registries subject to random, suspicionless searches by police violates the Fourth Amendment. (This was even a question?)
So there you have it.
More opinions to come on Thursday.
Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.
Horne strikes me as being a strange step in the right direction of putting a leash on Wickard…
As such, it strikes me as appearing to be a small case today but, in a few years, a positively *HUGE* one.
Irritated by Thomas’s dissent.Report
Wait, Thomas concurred. It was Sotomayor that dissented.
Less irritated with Thomas now, though still residually irritated.
What the hell is wrong with Sotomayor?Report
Am I misreading Sotomayor? Her argument almost seems to suggest that the government could seize a small business for arbitrary reasons, and it wouldn’t be a taking if it continued to provide the former owner with a desultory share of whatever revenues the business might then have, because it wouldn’t completely eliminate the owner’s property interests. That notion eviscerates the very notion of just compensation.Report
Her argument is incoherent to me to the point where I find it difficult to believe that she’s seriously making it.
This is an argument that should seriously be laughed out of the room.Report
I think the Thomas opinion in Horne is a concurrence, not a dissent.Report
Noted and corrected. Thank you!
Also, edited to add in squibs of the other opinions from today, which are interesting although still IMO less significant than what’s still in the pipe.Report
You’re too kind.
After checking the vote count, I’m going to have to read the Patel opinions. How is that a 5-4 decision?Report
1. This Drama major appreciates the title.
2. Why do you think the Supremes keep most of the “major” decisions until end of term? Is it because these cases are the hardest to decide? Do they just want to avoid media scrutiny? Both? Something else?
3. Kagan’s writing in Kimble v. Marvel is inspired:
http://www.lawyersgunsmoneyblog.com/2015/06/knowing-your-audience-is-mostly-nerds
4. The photo of Thomas looks like it was distorted by a fun house mirror.Report
I believe the picture of Justice Thomas is a caricature portrait rather than a photograph. The “major” decisions come later, I think, because they put more wordsmithing into them — these are the cases they anticipate will be read much more frequently for posterity.Report
2. As a Drama major you know exactly why.Report
My understanding has always been that they release the really hot rulings timed so that they can be riding at a full gallop out of town before the mob has a chance to read the decisions.Report
Los Angeles v. Patel: Municipal law requiring hoteliers to keep guest registries subject to random, suspicionless searches by police violates the Fourth Amendment. (This was even a question?)
Cops is cops. Until someone really high up tells them no, they’re going to assume they have the right to do something.Report
As noted on SCOTUSblog, how often do you see “The decision of the Ninth Circuit Court is affirmed”? How often do you see it twice on the same day?Report
Some bigger law geek than I will surely have the answer to that question on tap, and my guess is it’ll date back to the time Earl Warren was Chief Justice.Report
I was always felt the Ninth Circuit got a bad rap. It is, IIRC, huge. Like REALLY huge. It covers a really oversized swathe of people compared to the other Courts.
As such, it’s going to get a lot more cases — which means it’s gonna have a lot more appeals to SCOTUS. And the thing about cases that get appealed to SCOTUS and taken up — they’re generally something tricky about them.
I mean just to get a Circuit decision means there’s something weird or unusual with your case. For SCOTUS to pick up on it generally means SCOTUS has something it wants to say about it
Anyways, I think given the number of people in their area, the number of cases they see, that statistically the Ninth should come up in front of SCOTUS a lot more than other circuit courts.
I think one of the others — the Fifth, maybe? — has a similar problem, because it gets a lot of cases against the Federal government.Report
Who cares about the number of people? Everyone incorporates in Delaware anyway…Report
The District of Columbia Circuit, unnumbered. Yeah, they get all of the stuff related to the regulatory agencies. Eg, the Michigan v. EPA case regarding the cost of mitigating coal-fired power plant mercury emissions that’s on Burt’s list came out of the DC Circuit.Report
In Kimble, Alito found for an individual against a corporation. Has this ever happened before?Report
Another little note: SCOTUSblog is running a very fun banner picture today, drawn by one of the official SCOTUS sketch artists. Richard Herschberger will particularly appreciate Justice Breyer’s portrait; but personally I think the best jokes are the Chief, The Notorious RBG, and Justice Thomas.Report
I can’t tell all of the players without a scorecard. I assume Roberts is the umpire, but who’s second from the right in the Ted Williams pose? And is there an editorial comment about reaching in whoever’s fourth from the right?Report
It goes in reverse order of seniority, outward from the Chief in the center, the same way they sit in chambers. So from left to right, you have:
Sotomayor (wearing Yankees pinstripes)
Breyer (wearing a cricket kit)
Thomas (in Dallas Cowboys gear)
Scalia (in a Brooklyn, not Los Angeles, Dodgers uniform)
Roberts (as an umpire)
Kennedy (holding with “Inspector Gadget” device to extend his mitt’s reach)
Ginsburg (wearing the League Of Their Own uniform)
Alito (in Phillies pinstripes)
Kagan (in Red Sox pinstripes)Report
Scalia is in a Dodgers uniform, but the pose is pure Babe Ruth.
Thomas is a lifelong Cowboys fan. #91 doesn’t seem to be anyone in particular.Report
Thomas was nominated to the Supreme Court in 1991, which is where I think the number comes from. It’s an artistic master stroke to have him in Cowboys gear while the rest of them are set up to play baseball (or something sort of like it).
Scalia? He certainly has the swagger of a Babe Ruth. But the thing is, Scalia originally hails from Queens, so seems to me he ought to be wearing a Mets uniform.Report
Queens peoples were Dodger fans at the relevant portion of Scalia’s life. (he started law school around the same time as the last game of theirs at Ebbets field)Report
Damn, I knew that about Thomas. Or should have: I watched his confirmation hearings holding a newborn.Report
A raisin reserve? Seriously? That exists? I imagine a giant vault full of raisins that the heads of whatever-organization-oversees-the-thing (FDA? Ag?) swim in Scrooge McDuck style.Report
The Raisin Administrative Committee, in Fresno.
Based on my experience with baking my weekly or thereabouts loaf of cinnamon-raisin bread, raisins are too sticky for the swimming thing.Report
Something I never knew until just now is that someone has made videos of many Court cases using the actual audio and John Oliver’s Supreme Court Justice dogs. Here, for instance, is Hobby Lobby vs. Sibelius.Report
Arizona State Legislature v. Arizona Independent Redistricting Commission: is an extralegislative commission an appropriate body to draw Congressional districts?
Wait, the Supreme Court has to rule on whether it’s appropriate to have an impartial body draw electoral boundaries, as opposed to the status quo of having the party in power draw them to benefit itself?
…I’m really hoping they rule in favour of the redistricting commission. Everywhere in Canada has independent electoral boundary commissions, which is how we avoid the US’s issues with gerrymandering. It’s an ideal policy solution.Report
The wording of the constitution specifically says districts are to be drawn by the legislatures of the states.
I’d be more persuaded by that argument if we hadn’t been interpreting an amendment that begins “Congress shall make no law” to apply to all actions by all branches of both state and federal governments for the past century or more.Report
As I’ve written here before, this is a case with potentially enormous consequences.
As @alan-scott says, the Constitution says drawing districts is the responsibility of state legislatures. The precedents for this case define legislature loosely, to mean roughly “the normal legislative process as defined by the state.” Neither of the relevant cases, though, involved citizen initiatives as part of the process. And it’s not just Arizona. California has a pretty similar system. There are some other states with different variations. If the SCOTUS finds for the Arizona legislature, they have potentially decided that upwards of 20% of the US House districts are improperly drawn at present. That’s a hell of a decision.
A hundred years ago, a wave of direct democracy swept across the West (and select states elsewhere). This is one of the very first times that the SCOTUS has been asked the question of whether there are limits to how direct democracy may be used to restrict state legislative bodies. The Court has been sitting on a case from Colorado for six months that asks the question in a more indirect fashion without deciding whether to grant cert. If the Court decides that there are substantial limits on what can be done by initiative, then there’s the whole “how much of what was done in the last hundred years gets tossed?” question.
While the Constitution doesn’t say much about state government, it’s pretty clear what the authors had in mind — vote for your representatives, then sit down and shut up. Direct democracy has been allowed to run loose in part of the country for a long time, and now the Court is going to have to make decisions. Unless they’re willing to go to one extreme or the other, drawing the necessary lines is likely to be a complicated job.Report
Since no one seems to have remarked on it to this point anywhere on the site, health insurance subsidies for purchases on the federal exchange stand, 6-3. Split is exactly what I predicted in comments on the post following the oral arguments — the four liberals, CJ Roberts, and Kennedy. The CJ wrote the opinion.Report
Well, that’s good news. From a legal perspective, primarily. If they ruled the other way they’da lost whatever’s left of their credibility.
{{Now I need to dig up that old post to see how wildly inaccurate my prediction was!}}Report
I predicted 6-3 in favor of gummint, but finer-grained details are lacking. I did say that an opportunistic Scalia would jump to the opposing side, if a pro-Burwell majority was a sure thing, to write the dissent. Did I get that part right?Report
Yes, Scalia wrote the dissent. Among other interesting turns of phrase, he calls part of the majority’s reasoning “Pure applesauce.”Report
Hah! That’ll be a good read. Good ole Scalia.Report
I was predicting 5-4 though I’m wondering if Roberts jumped on to the bandwagon in the interest of optics to avoid the 5-4 conservative/liberal split?Report
Well stick a fork in it the liberals won; that’s the end of any serious or material threats to the ACA at least until after the next election.
I am curious, do you think Roberts was in the majority from the get go or do you think he realized that Kennedy was going to side with the ACA and jumped aboard to make the result look less partisan and defend the image of the court?Report
I think Roberts decision is a combination of factors –
1. He realized jumping against the ACA would only further increase the spiral of respect for the Supreme Court. And also, he wants to be remembered well historically – ‘the Roberts Court allowed gay marriage nationally and legitimatized President Obama’s landmark health care bill’ sounds better in a 2050 history book than ‘the Roberts Court raised the politicization in the country, casting millions of people off health insurance rolls and delayed justice for minority groups for decades.’ He doesn’t want to be the Justice Taney for gay people.
2. He’d probably gotten backchannel messages from various insurance lobbyists and GOP staff members that, “yes, our crazies want this, but we know this would fuck us politically.”
3. Roberts is a business friendly conservative, not a ‘destroy the New Deal and sends us back to the good ole’ days of the 1890’s’ conservative. So, he can happily rule against voting rights because that doesn’t impact businesses bottom line, but f’ing over the insurance industry in half the country would be a bad thing.Report
@jesse-ewiak
Yeah. I think that Roberts and Kennedy care about their legacies more than Scalia and Thomas. Though Roberts has not ruled in favor of any plaintiff in gay rights’ cases as far as I know. He dissented in Windsor.Report
Losing or gaining credibility = whether or not person discussing it disagrees/agrees with decision.
This is the “judicial activism” discussion by another name yet equally obnoxious.Report
I’d say that Roberts’ vote on the mandate was clearly judicial activism. He pulled the whole thing right outa … thin air!Report
@stillwater
Our beloved (and my Jersey brother) Mark Thompson called the mandate as a tax, and Justice Roberts reads this blog so he knew exactly how to go about avoiding the hell that could have been had either the mandate or the entire Affordable Care Act went down.Report
Heh. Yeah, that! The least he coulda done is give a shout to Mark for having made the argument he eventually made since the gummint didn’t actually make it. Obama should give a shout too, for that matter. But no… Thanks Obama!Report
Eh, there are conservative decisions I highly disagree with, but can at least see the evidence for. From the start of this whole process, aside from a general disbelief in the modern American welfare state (hi Clarence Thomas!), there was no reasonable way to knock down the subsidies based on largely, a drafting error, considering that even conservative Republican senator’s who were part of the process have stated they never though that people would lose subsidies if states didn’t set up exchanges.
Burwell vs. King was about only three or four steps up from a ‘crazy prisoner tries to sue God’ level of silly lawsuits.Report
@jesse-ewiak
Burwell vs. King was about only three or four steps up from a ‘crazy prisoner tries to sue God’ level of silly lawsuits.
I’d say about one or two steps and I’m glad the law survived the challenge. It was a very good day for the healthcare industry, especially the not-for-profit hospitals.Report
Did we just agree on something?Report
Indeed. The market has spoken.
Report
No one in the healthcare business wants to see the ACA get undermined in any way.Report
“This is the “judicial activism” discussion by another name yet equally obnoxious.”
And @dave nails it.Report
Aaron (and Dave too):
Do you guys think there is no such thing as judicial activism? That the concept is purely political?
How do you explain Robert’s reasoning in the mandate case without attributing to him pretty much the exact definition of the term?
Edit: or Mike Schilling’s example: the reasoning in the recent CRA voting rights case?Report
@stillwater
I think that there was a constitutional basis for ruling that the mandate was a tax under the Taxing Clause even though the argument failed to pass constitutional muster under the Commerce Clause. That’s different from what I understand as the general understanding of judicial activism where a decision is reached without any constitutional basis, at least so it goes.
Plus, and I’m not sure how much I want to go into the weeds on this specific topic, judicial activism typically involves striking down a law that was democratically passed.Report
@stillwater
I know @mike-schilling has had more than a few strong words about that decision, but I must admit that I haven’t read it. My initial understanding is that what the Court got wrong (or ignored) is that they failed to recognize that the processes they voted to strike down were the very reason why they saw things the way they did. It’s like taking medicine away from a patient because the patient is better without recognizing the role the medicine plays in that.
I can’t say more than that right now.Report
And they managed to “fail to recognize” that in the face of at least two states (Texas and North Carolina) saying publicly exactly what they would do once SCOTUS removed the legal barrier.
I won’t bring up the fact that Roberts had been working against the VRA since before he was appointed to the bench, back when he was a GOP operative, because that would sound like I’m accusing him of judicial activism.Report
@stillwater I don’t know about judicial activism one way or ‘tother. But I do agree with @dave that sore losers pretty much go there consistently, no matter which ‘side’ wins or loses.
At the end of the day, Justices are human, and base their opinions on their lived experience as well as their judicial experience. I’ve read that judges with daughters, for instance, are more likely to rule in favor of women. In Roberts case, his sphere of influence includes business, and the economic instability to the insurance industry that might have resulted would certainly be something he’d have been concerned about (not to mention six million families at or near poverty line facing substantial insurance increases), but does having a concern for business or daughters make you a judicial activist? I don’t think so.
I’d say this is an ‘anti-activist’ decision, however. Since nobody objected to or complained about the subsidies in federally-run exchanges until this came up, including all the Republican members of Congress who voted against the law, retroactively reassigning the meaning based on a word that has multiple definitions would, I think, have been activism. So Scalia’s dissent.
And that’s sort of the more interesting question to me; is there more intent toward judicial activism in dissenting opinions? The Notorious Ruth Bader Ginsberg’s dissent in HL? That’s where, I think, it’s more likely to show; but that’s only a guess and not an informed opinion.Report
zic,
My understanding the term “judicial activism” is a decision based on politics or preferences rather than existing law and procedures. For Roberts to side with gummint on grounds that were not only not argued but were specifically rejected seems to me to fit the bill. I mean, he basically constructed an entire argument outa whole cloth (one which the gummint shouldhave been making all along!), and said that according to that unargued argument the mandate is constitutional.
And more, he rejected, explicitly, the government’s argument that the mandate was a constitutional penalty governed by the commerce clause.
Doesn’t make any sense to me from a legal pov, that’s for sure.
Edit: To your “sore losers” point: that’s one of the things I was specificall pushing back against. just because a bunchof people reflexively use the term as cover for their hurt feelings doesn’t mean the concept is useless or never appropriately used. Saying it is just amounts to a dig on “both sides” and all that.Report
Yeah, I hear you. I think my only point is the ‘preference’ part; that sometimes it’s not so much ideological preference as lived experience, which is why I marshalled the behavior of judges with daughters in rulings involving women’s treatment (domestic abuse, workplace discrimination, etc.)
I guess I think it’s important to cling to that lived experience as root of judicial activism, and it’s nuanced from ideological-driven judicial activism; seeing a daughter suffer domestic abuse or discrimination at work, a gay son unable to have his partner at his hospital bedside making decisions, ought to be the kind of lived experience that shapes ‘judicial activism’ in the name of wisdom.Report
@aaron-david
If the Supreme Court strikes down same sex marriage bans, what will be expect to hear from the opponents of the decision:
a) judicial activism
b) that the SCOTUS has lost all credibility
c) nine superlegislators in black robes destroyed democracy
d) Poor Dave now has to worry about threats to his traditional marriage from gay men in all 50 states (a running joke on my FB feed with one of our other contributors here lol)
e) all of the aboveReport
I will take E for $1000 @dave Trebek!Report
@aaron-david
You will take E for $500 because you didn’t build that so I’m taking half. 😉Report
I don’t know if I included it in my comments at the time, but my reasoning was Roberts wasn’t about to screw big insurance/hospital/pharma corporations over a drafting error, and Kennedy wasn’t about to screw several million people in 30-some states over the same error.Report
It’s kinda fun to recall the way-back reasoning. Initially, when the case was first taken, I thought it’d go 7-2 for gummint, with Alito and Thomas being ole stick in mud the literalists. (Those guys are no fun.) I revised that on the view that if those were the prevailing numbers thru deliberations, Scalia would jump ship – opportunistically! – so’s he could write a scathing, curse-laden dissent outlining all the ways the fedrul gummint is impinging on states rights and individual liberty and Christians and Freedom! I figured Roberts wouldn’t vote against a bill that he singlehandedly saved only a short time before. The others just fell naturally into place.Report
“do you think Roberts was in the majority from the get go ”
He’s been pretty friendly to the Executive Branch, and King v. Burweil represents a significant increase in the Executive Branch’s power, so, yeah, he was probably on that side from the start.Report
This case just seems odd to me. The news articles say it hinged primarily on one phrase: health care exchanges are “established by the state”.
“The state” has been a term used to refer to government for centuries; is there some particular reason (aside from, “I want to get rid of Obamacare and this is the best argument I could find”) for anyone to conclude it referred only to the 50 states?
This is why it’s nice that in Canada we have provinces; it avoids that kind of lexical confusion.
I’m glad the Supreme Court upheld the Affordable Care Act.Report
” The news articles say it hinged primarily on one phrase: health care exchanges are “established by the state”.”
But is it referring to “the state” as an abstract description of government? Because elsewhere in the ACA it refers to “the state” as an entity distinct from the Federal Government. And it’s pretty established practice throughout all of American history that when official government documents mention “state”, they are not referring to the Federal Government.Report
Yes. He’s conservative but not purely or reflexively so. One must be both those things (and willfully blind) to come out the other way. Turns out the Supreme Court’s crazification factor is as close to 27% as allowed in a nine-person group.Report
I have gone so far as to speculate that the fix was in from the beginning, and that the case was pulled up from the Appeals Court prematurely by Roberts and the liberal wing (not the conservatives, as so many people seem to think). I haven’t read the opinion yet, but understand that the Chevron argument was not used — the Court was nailing down that this was the law and it would be up to Congress to pass something different if the conservatives want to change it, rather than a different administration deciding to read the ambiguity differently.Report
Per the opinon, Chevron doesn’t apply when it’s Really Important And Stuff.Report
Thanks to everyone for their opinions on my question my horizons were truly expanded by the responses.Report