About Justice Scalia’s headgear

The twitterverse is alive with tweets about Justice Scalia’s headgear for today’s inauguration. At the risk of putting all the fun speculation to an end . . . The hat is a custom-made replica of the hat depicted in Holbein’s famous portrait of St. Thomas More. It was a gift from the St. Thomas More Society of Richmond, Virginia. We presented it to him in November 2010 as a memento of his participation in our 27th annual Red Mass and dinner.

[UPDATE: Many have asked for more details about Justice Scalia’s hat. It was made in Richmond, Virginia by milliner Camille Parham. Richmond lawyer and St. Thomas More Society executive committee member Stephen Reardon spearheaded our search for a “St. Thomas More hat” and presented the hat to Justice Scalia at the dinner after our Red Mass. A picture from the presentation and one from Justice Scalia’s visit earlier in the day to the University of Richmond School of Law are below.]

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Posner v. Garner & Scalia on ejusdem generis in McBoyle v. United States

The latest of Judge Posner’s claims of inaccuracy in Reading Law, by Bryan Garner and Antonin Scalia, focuses on Justice Holmes’s decision for the Court in McBoyle v. United States.

Posner is wrong to accuse Garner & Scalia of misrepresenting this opinion as an application of ejusdem generis. But here are the relevant texts; you be the judge:

Garner & Scalia (pp. 199-200):

The ejusdem generis  canon applies when a drafter has tacked on a catchall phrase at the end of an enumeration of specifics, as in dogs, cats, horses, cattle, and other animals. Does the phrase and other animals refer to wild animals as well as domesticated ones? What about a horsefly? What about protozoa? Are we to read other animals here as meaning other similar animals? The principle of ejusdem generis says just that: It implies the addition of similar after the word other.

* * *

Courts have applied the rule, which in English law dates back to 1596, to all sorts of syntactic constructions that have particularized lists followed by a broad, generic phrase. Today American courts apply the rule often. Some examples through the years:

* * *

“automobile, automobile truck, automobile wagon, motor cycle, or any other self-propelled vehicle not designed for running on rails”–held not to apply to an airplane. (FN: McBoyle v. United States, 283 U.S. 25, 26, 27 (1931) (per Holmes, J.)

Posner:

He says I cite only six examples of cases that the book misrepresents. True, but I had space limitations. So here’s a seventh, and I will be glad to furnish others on demand. The authors summarize a well-known opinion by Holmes (McBoyle v. United States) tersely: “’automobile, automobile truck, automobile wagon, motor cycle, or any other self-propelled vehicle not designed for running on rails’”—held not to apply to an airplane.” They use this to illustrate the statutory principle called eiusdem generis, which is Latin for “of the same kind” and means that in a list of specifics that ends with a general term (for example, “cats, dogs, and other animals”) the general term should be interpreted to be similar to the listed terms (so “animals” would not include human beings). The statute under which McBoyle was convicted criminalized the transportation in interstate commerce of a “motor vehicle” known to have been stolen. Scalia and Garner do not mention “motor vehicle,” but consider only whether an airplane (the stolen property that McBoyle had transported across state lines) is the same kind of thing as an automobile, an automobile truck, etc. For Holmes the question was whether an airplane is a “motor vehicle,” and while he alluded to without naming the principle of eiusdem generis, his principal ground for reversing McBoyle’s conviction was unrelated to that principle; it was that in ordinary speech an airplane is not a motor vehicle and that a conviction for a poorly defined crime should not be allowed. He also mentioned legislative history (anathema to Scalia and Garner) in support of his interpretation. All this Scalia and Garner ignore.

Holmes, in McBoyle:

MR. JUSTICE HOLMES delivered the opinion of the Court.

The petitioner was convicted of transporting from Ottawa, Illinois, to Guymon, Oklahoma, an airplane that he knew to have been stolen, and was sentenced to serve three years’ imprisonment and to pay a fine of $2,000. The judgment was affirmed by the Circuit Court of Appeals for the Tenth Circuit. 43 F. (2d) 273. A writ of certiorari was granted by this Court on the question whether the National Motor Vehicle Theft Act applies to aircraft. 26*26 Act of October 29, 1919, c. 89, 41 Stat. 324; U.S. Code, Title 18, § 408. That Act provides: “Sec. 2. That when used in this Act: (a) The term `motor vehicle’ shall include an automobile, automobile truck, automobile wagon, motor cycle, or any other self-propelled vehicle not designed for running on rails; . . . Sec. 3. That whoever shall transport or cause to be transported in interstate or foreign commerce a motor vehicle, knowing the same to have been stolen, shall be punished by a fine of not more than $5,000, or by imprisonment of not more than five years, or both.”

Section 2 defines the motor vehicles of which the transportation in interstate commerce is punished in § 3. The question is the meaning of the word `vehicle’ in the phrase “any other self-propelled vehicle not designed for running on rails.” No doubt etymologically it is possible to use the word to signify a conveyance working on land, water or air, and sometimes legislation extends the use in that direction, e.g., land and air, water being separately provided for, in the Tariff Act, September 22, 1922, c. 356, § 401 (b), 42 Stat. 858, 948. But in everyday speech `vehicle’ calls up the picture of a thing moving on land. Thus in Rev. Stats. § 4, intended, the Government suggests, rather to enlarge than to restrict the definition, vehicle includes every contrivance capable of being used “as a means of transportation on land.” And this is repeated, expressly excluding aircraft, in the Tariff Act, June 17, 1930, c. 997, § 401 (b); 46 Stat. 590, 708. So here, the phrase under discussion calls up the popular picture. For after including automobile truck, automobile wagon and motor cycle, the words “any other self-propelled vehicle not designed for running on rails” still indicate that a vehicle in the popular sense, that is a vehicle running on land, is the theme. It is a vehicle that runs, not something, not commonly called a vehicle, that flies. Airplanes were well known in 1919, when this statute was passed; but it is admitted that they were not mentioned in the reports or in the debates in Congress. 27*27 It is impossible to read words that so carefully enumerate the different forms of motor vehicles and have no reference of any kind to aircraft, as including airplanes under a term that usage more and more precisely confines to a different class. The counsel for the petitioner have shown that the phraseology of the statute as to motor vehicles follows that of earlier statutes of Connecticut, Delaware, Ohio, Michigan and Missouri, not to mention the late Regulations of Traffic for the District of Columbia, Title 6, c. 9, § 242, none of which can be supposed to leave the earth.

Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear. When a rule of conduct is laid down in words that evoke in the common mind only the picture of vehicles moving on land, the statute should not be extended to aircraft, simply because it may seem to us that a similar policy applies, or upon the speculation that, if the legislature had thought of it, very likely broader words would have been used. United States v. Thind, 261 U.S. 204, 209.

Judgment reversed.

My Analysis:

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Scalia on the relationship between politicization and the who and when of litigation

The degree to which the courts become converted into political forums depends not merely upon what issues they are permitted to address, but also upon when and at whose instance they are permitted to address them. As De Tocqueville observed:

“It will be seen . . . that by leaving it to private interest to censure the law, and by intimately uniting the trial of the law with the trial of an individual, legislation is protected from wanton assaults and from the daily aggressions of party spirit. The errors of the legislator are exposed only to meet a real want; and it is always a positive and appreciable fact that must serve as the basis of a prosecution.”

The great change that has occurred in the role of the courts in recent years results in part from their ability to address issues that were previously considered beyond their ken. But in at least equal measure, in my opinion, it results from the courts’ ability to address both new and old issues promptly at the behest of almost anyone who has an interest in the outcome. It is of no use to draw the courts into a public policy dispute after the battle is over, or after the enthusiasm that produced it has waned. The sine qua non for emergence of the courts as an equal partner with the executive and legislative branches in the formulation of public policy was the assurance of prompt access to the courts by those interested in conducting the debate. The full-time public interest law firm, as permanently in place as the full-time congressional lobby, became a widespread phenomenon only in the last few decades not because prior to that time the courts could not reach issues profoundly affecting public policy; but rather because prior to that time the ability to present those issues at will (to make “wanton assaults,” to use De Tocqueville’s pejorative characterization) was drastically circumscribed. The change has been effected by a number of means, including such apparently unrelated developments as narrowing the constitutionally permissible scope of laws against champerty and maintenance (so that the cause may now more readily seek a victim to represent), alteration in the doctrine of ripeness (so that suits once thought premature may now be brought at once), and–to return to the point–alteration in the doctrine of standing.

Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk. Univ. L. Rev. 881, 892-93 (1983).

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Please don’t Boerne-ize the Necessary & Proper Clause

The Supreme Court has had a hard time improving on Chief Justice Marshall’s McCulloch v. Maryland formulation of the doctrinal test for Congress’s power under the Necessary and Proper Clause. At one point in time, the Court even adopted that formulation as its test for the reach of Congress’s power under Section 5 of the Fourteenth Amendment. In City of Boerne v. Flores, however, the Court tried to do better in its Section 5 jurisprudence. That was a mistake. Boerne‘s congruence and proportionality test is a “flabby test” that is “a standing invitation to judicial arbitrariness and policy-driven decisionmaking,” as Justice Scalia reiterated in a solo concurrence just last week.

Based on this week’s oral arguments on the constitutionality of the “individual mandate,” at least some of the Justices appear willing to formulate a new doctrinal test for what counts as a “Proper” law under the Necessary and Proper Clause. As they were in Boerne, the Justices are on a search for a limiting principle on Congress’s power. In their attempt to not Garcia–ize the Commerce Clause and the Necessary and Proper Clause, let us hope that they do not Boerne-ize those powers instead.

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Printz and case-based limits on severability determinations

Perhaps the Solicitor General will have more luck with a different aspect of Printz tomorrow?

One of the more pointed lines of questioning directed toward the Solicitor General regarding the constitutionality of Section 5000A came from Justice Scalia with respect to “Proper” in “Necessary and Proper”:

JUSTICE SCALIA: Wait. That’s — it’s both  “Necessary and Proper.” What you just said addresses  what’s necessary. Yes, has to be reasonably adapted. Necessary does not mean essential, just reasonably adapted. But in addition to being necessary, it has to  be proper. And we’ve held in two cases that something that was reasonably adapted was not proper, because it violated the sovereignty of the States, which was implicit in the constitutional structure. The argument here is that this also is — may be necessary, but it’s not proper, because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it’s supposed to be a government of limited powers. And that’s what all this questioning has been about. What — what is left? If the government can do this, what — what else can it not do?

GENERAL VERRILLI: This does not violate the norm of proper as this Court articulated it in Printz or in New York because it does not interfere with the States as sovereigns. This is a regulation that — this
is a regulation -­

JUSTICE SCALIA: No, that wasn’t my point. That is not the only constitutional principle that
exists.

GENERAL VERRILLI: But it -­

JUSTICE SCALIA: An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the
States and do not belong to the Federal Government. Do  you acknowledge that that’s a principle?

GENERAL VERRILLI: Of course we do, Your Honor.

JUSTICE SCALIA: Okay. That’s what we are talking about here.

Justice Scalia’s expansive invocation of quasi-Printz suggests a distinction that he perceives between HHS v. Florida and Gonzales v. Raich.

There is another aspect of Printz that the Solicitor General will rely on tomorrow with respect to severability. That is the Court’s’ refusal to adjudicate the severability of provisions that only burdened parties not before the court. After holding unconstitutional a provision requiring CLEOs (or Chief Law Enforcement Officers) to perform background checks on firearms purchasers, there remained a severability question whether firearms dealers remained obligated to forward to the CLEO the requisite background information and to wait five days before consummating the sale. These steps seemed a pointless formality after the invalidation of the CLEOs’ obligation to do background checks. But the Court’s opinion refused to address the issue:

These are important questions, but we have no business answering them in these cases. These provisions burden only firearms dealers and purchasers, and no plaintiff in either of those categories is before us here. We decline to speculate regarding the rights and obligations of parties not before the Court.

Relying on this aspect of Printz, the federal government has argued that the Supreme Court has no authority to decide the severability of provisions, even the guaranteed issue and community rating requirements, that do not burden the parties to the case.

Printz aside, I think the federal government is right about this as a matter of first principles. Unfortunately, severability has long been an area where first principles have been ignored. Perhaps tomorrow’s arguments will provide a chance for the Court to come face to face with the many problems of its severability doctrine, including the frankly legislative determinations it authorizes the judiciary to undertake.

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The jurisdictionality of the AIA and Justice Scalia’s remarks about “a parade of horribles”

Various reports on today’s oral arguments about the Anti-Injunction Act attribute a position to Justice Scalia that is the opposite of what he apparently holds with respect to the jurisdictionality of the AIA. These reports take apparently sarcastic comments at face value.

The comments came in an intervention by Justice Scalia apparently aimed at helping the amicus curiae, Robert Long, respond to Justice Sotomayor’s question (following up on Justice Alito’s) about the negative consequences of holding that the AIA is not jurisdictional:

JUSTICE SOTOMAYOR: Assuming we find that this is not jurisdictional, what is the parade of  horribles that you see occurring if we call this a mandatory claim processing rule? What kinds of cases do you imagine that courts will reach?

One response was that the government could mistakenly forfeit the AIA by failing to raise it. When Justice Sotomayor pressed Long further, Justice Scalia interposed and introduced another argument based on the undesirability of empowering judges to create equitable exceptions that could interfere with tax collection:

JUSTICE SOTOMAYOR: Assumes the lack of  competency of the government, which I don’t, but what other types of cases?

JUSTICE SCALIA: Mr. Long, I don’t think you  are going to come up with any, but I think your response  is you could say that about any jurisdictional rule. If  it’s not jurisdictional, what’s going to happen is you  are going to have an intelligent federal court deciding whether you are going to make an exception. And there will be no parade of horribles because all federal courts are intelligent. So it seems to me it’s a question you can’t answer. It’s a question which asks “why should there be any jurisdictional rules?” And you think there should be.

The write-ups of this portion of the argument at Thomson Reuters, SCOTUSBlog, National Law Journal, and Huffington Post report Justice Scalia’s statement as if he were endorsing the view that “there will be no parade of horribles.” Although I did not attend the argument and have not listened to the argument to hear the intonation, I think that is mistaken. It is inconsistent not only with views expressed by Justice Scalia elsewhere (as in the conclusion of his concurrence in Sosa v. Alvarez-Machain), but also with his apparent belief that the AIA is jurisdictional (as revealed in his question about a principle that ousters of jurisdiction are narrowly construed).

Most tellingly to one familiar with Justice Scalia’s writings, however, is that the comment came in response to a question about a “parade of horribles.” A couple decades ago, Justice Scalia referred to the misuse of this phrase as one of the “canards of contemporary legal analysis.” See Antonin Scalia, Assorted Canards of Contemporary Legal Analysis, 40 Case Western L. Rev.581, 590-93 (1989-90). The reasons that he gave then illuminate the comments he made today about the jurisdictionality of the AIA:

The reason I say that the “parade of horribles” put-down appeals to the Emersonian school of jurisprudence is this: Just as one cannot conceive of a parade unless one believes in organization, so also one cannot take seriously a jurisprudential parade of horribles unless one believes in the demands of logic and consistency as the determinants of future judicial decisions. The judge without that belief – the judge who does not operate on the assumption that he must decide the case before him on the basis of a general principle that he is willing to apply consistently in future ‘cases – can simply dismiss the predictions of future mischief by quoting Justice Holmes’s reply to Chief Justice Marshall’s venerable dictum that “the power to tax [is] the power to destroy.” “The power to tax is not the power to destroy,” Holmes said, “while this Court sits.” The notion that predicted evils cannot occur “while this -‘Court sits” is comforting, of course, but hardly a response to how they can be avoided without repudiating the legal principle adopted in the case at hand. I would have thought it a better response to Marshall’s dictum that the power to tax the activities of the federal government cannot constitute the power to destroy the federal government so long as the tax is generally applicable and nondiscriminatory – because it is implausible that the state would destroy its own citizens as well. Instead, however, Holmes simply said “not … while this Court sits,” and excused Marshall’s ignorance with the observation that “[i]n those days it was not recognized as it is today that most of the distinctions of the law are distinctions of degree.” (Here Holmes flatters himself and his legal realist disciples. Perhaps it was not as generally recognized, but I am sure Marshall was quite aware of it.) “The question of interference with Government,” Holmes concluded, “is one of reasonableness and degree and it seems to me that the interference in this case is too remote.”

Of course if one is to adopt as the controlling legal principle “reasonableness and degree,” one need fear no parade of horribles. As soon as the result seems “unreasonable,” or goes “too far,” the remaining marchers will be sent home. But what guidance does such a principle provide for the lower courts, and what check is it against the personal preferences of future judges? “Be reasonable and do not go too far” is hardly more informative than “Do justice,” or “Do good and avoid evil.” Once one departs from such platitudes and insists upon an analytical principle that is not value laden, then, and only then, does the parade of horribles become a meaningful threat.

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Writing separately when everyone else appears to faithfully apply precedent that makes no sense

The opening of Justice Scalia’s opinion concurring in the judgment today in Coleman v. Court of Appeals of Maryland:

The plurality’s opinion seems to me a faithful application of our “congruence and proportionality” jurisprudence. So does the opinion of the dissent. That is because the  varying outcomes we have arrived at under the “congruence and proportionality” test make no sense. Which in  turn is because that flabby test is “a standing invitation to  judicial arbitrariness and policy-driven decisionmaking,”  Tennessee v. Lane, 541 U. S. 509, 557–558 (2004) (SCALIA,  J., dissenting). Moreover, in the process of applying (or  seeming to apply) the test, we must scour the legislative record in search of evidence that supports the congressional action. See ante, at 6–11; post, at 16–20 (opinion  of GINSBURG, J.). This grading of Congress’s homework  is a task we are ill suited to perform and ill advised to undertake.

 

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Justice Brennan and Justice White from the Catholic Bishops’ point of view

During his time on the Rehnquist Court, Justice Brennan voted in seven cases in which the United States Conference of Catholic Bishops (the “USCCB” or “Bishops’ Conference”) filed an amicus curiae brief. He voted for the party supported by the Bishops’ Conference in three out of those seven cases. By contrast, during his time on the Rehnquist Court, Justice White voted in ten cases in which the USCCB filed an amicus curiae brief (the same seven as Justice Brennan, plus three more). He voted for the party support by the Bishops’ Conference in all ten of those cases.

The low level of agreement between Justice Brennan and the Bishops’ Conference is notable given that Justice Brennan was the last beneficiary of a so-called “Catholic seat” on the Supreme Court.  And Justice Brennan’s voting pattern presents an interesting contrast with Justice White’s.  The contrast is noteworthy because President Kennedy appointed White. As the country’s first (and thus far only) Catholic President, Kennedy could not politically afford to nominate a Catholic to the Supreme Court.  By contrast, Brennan’s Catholicism was an important factor in making him an attractive nominee for Eisenhower.  Thus, one reason that Brennan was appointed is that he was a Catholic, while one reason White was appointed is that he was not a Catholic.  Yet White ended up consistently voting with the Catholic bishops on the Rehnquist Court, while Justice Brennan had one of the lowest rates of agreement during the same time period.

There were five other Justices who voted in all ten cases in which the Bishops’ Conference filed an amicus curiae brief and in which Justice White voted: Chief Justice Rehnquist, Justice Blackmun, Justice Stevens, Justice O’Connor, and Justice Scalia. Rehnquist and Scalia joined White in voting for the party supported by the Bishops’ Conference in all ten of these cases. Justice O’Connor voted for that party in eight out of those ten cases, Justice Stevens in three, and Justice Blackmun in two. In the first several years of the Rehnquist Court, then, the three Justices with the best track record from the point of view of the Bishops’ Conference consisted of two Protestants (Chief Justice Rehnquist and Justice White) and one Catholic (Justice Scalia).

[Cross-posted at CLR Forum]

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Greenhouse’s telling omissions re: RFRA, contraceptives, and conscience

Linda Greenhouse’s Opinionator column today addresses “the escalating conflict over the new federal requirement that employers include contraception coverage without a co-pay in the insurance plans they make available to their employees.” The most interesting aspect of the column is what is missing from its legal analysis: any consideration of all the other ways that the Administration could ensure widespread access to low-cost contraception without violating the religious liberty of religious objectors. Perhaps one shouldn’t be surprised that the “tags” for the column are “birth control” and “Roman Catholic Church,” rather than “religious liberty” or “conscience.”

After beginning by criticizing the rhetoric of mandate opponents and noting the silence of mandate supporters on the question of conscience, Greenhouse states that “the purpose of this column is to examine the conscience claim itself, directly, to see whether it holds up.” But Greenhouse’s framing of the analysis reflects a basic misapprehension of the legal protections for religious liberty already embedded in federal law. Greenhouse writes that objecting religious institutions claim “a right to special treatment: to conscience that trumps law.” That is wrong: the objecting religious institutions claim that the mandate violates federal law. They do not argue that conscience “trumps law.” Far from placing conscience over law, the objecting institutions advance a claim under the law.

After misframing the issue as whether conscience trumps law, Greenhouse devotes two paragraphs to explaining why “that is not a principle that our legal system embraces.” These two paragraphs discuss the Supreme Court’s discussion in Employment Division v. Smith, a 1990 decision authored by Justice Scalia. Only after discussing Smith does Greenhouse turn to the Religious Freedom Restoration Act (“RFRA”). In the journalism business, this is known as burying the lede. The RFRA is where the principal legal action will be in the lawsuits challenging the contraceptives mandate.

Having submerged the real legal basis for the objectors’ claims, Greenhouse then leaves out the part of the RFRA‘s test that will be hardest for the Administration to satisfy. The RFRA provides that the federal government cannot substantially burden the exercise of religion unless doing so is the least restrictive means of accomplishing a compelling government interest. Yet Greenhouse’s discussion contains no mention at all of the “least restrictive means” part of the test. Instead, Greenhouse says that a RFRA challenge “would pit the well-rehearsed public health arguments . . . against religious doctrine.” The omission is telling, because the weakest part of the government’s case will be this least restrictive means requirement. There are so many other ways for the federal government to accomplish its objectives that it should lose the RFRA claims on precisely this point.

Earlier in her column, Greenhouse notes the lack of a “full-throated defense” of the contraceptives mandate, “except on pure policy grounds.” The best explanation for the silence of the mandate supporters with respect to religious liberty may be the simplest: nobody likes to pick a fight that they cannot win.

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Fourth Circuit: Qualified Immunity for Strip Searches Following Positive Ionscan

Judge Wilkinson authored an opinion for a three-judge panel of the Fourth Circuit (Wilkinson, Shedd, Norton by designation) affirming the grant of qualified immunity to Maryland prison employees in Braun v. Maynard. The court holds that strip searches following the positive alert of “a portable ion scanning machine capable of detecting minute amounts of controlled substances” do not violate clearly established federal law implementing the Fourth Amendment.

One interesting tidbit is Judge Wilkinson’s citation of the Supreme Court’s decision in City of Ontario v. Quon, which the opinion invokes as support for the proposition that “[i]t is often difficult for judges, let alone prison officials, to apply Fourth Amendment concepts to cases involving novel technology.” Justice Kennedy’s opinion for the Court in Quon does have a lengthy discussion of Fourth Amendment problems raised by new technology. This discussion drew the ire of Justice Scalia, who thought the majority’s “excursus on the complexity and consequences” of answering a question about the correct application of the Fourth Amendment to new technology not only “unnecessary” but also “exaggerated.” Justice Scalia wrote: “Applying the Fourth Amendment to new technology may sometimes be difficult, but when it is necessary to decide a case we have no choice. The Court’s implication that where electronic privacy is concerned we should decide less than we otherwise would (that is, less than the principle of law necessary to resolve the case and guide private action)–or that we should hedge our bets by concocting case-specific standards or issuing opaque opinions–is in my view indefensible. The-times-they-are-a-changin’ is a feeble excuse of disregard of duty.”

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