#5: Limits on Supreme Court Power

Blog Post #5

So far this semester, we’ve been talking quite a bit about how the Supreme Court makes its decisions. One of the main tenets of the attitudinal model is that Supreme Court justices are essentially unconstrained. This means that they can pretty much decide cases how they want to, and then sort of rationalize that decision in the language of legal reasoning. But the Case or Controversy Clause has been invoked as a real limitation on the Supreme Court’s power. For a summary of the constitutional limitations on judicial power, see the very helpful “Exploring Constitutional Conflicts” page.

As your textbook explains, these limitations have been envoked on a number of occasions by the Supreme Court as an explanation of why it declined to hear a particular case on the merits. This, of couse, seems a lot like a limitation on the Supreme Court’s power. In other words, they are essentially saying that they don’t have the power to decide a case because of the constitutional limitations placed upon them by the Case or Controversy Clause.

A recent example of this is the Court’s decision in Hollingsworth v. Perry (2013). The Court held that the Case or Controversy Clause prohibited the Court from deciding the case because the propoents of the same sex marriage ban did not have standing to sue. Read this New York Times summary of the case called “Between the Lines of the Proposition 8 Opinion.” As you can see, there is disagreement amongst the Justices about whether the CAse or Controversy Clause really exerted a limit on the power of the Court in this situation. In this context, then, it is important for us to consider carefully whether the Case or Controversy Clause puts real limits on the ability of the Court to exercise policy making power.

Paper Topic 5: Does the Case or Controversy Clause put real limits on the Supreme Court’s power? What does this say about the possibility of (and breadth of) an attitudinal model of judicial decision making?

Suggested Reading: Segal, Jeffrey A. and Harold J. Spaeth. 2002. The Supreme Court and the Attitudinal Model Revisisted. Cambridge University Press. ISBN: 0-521-78971-0.

#3: Judicial Review as We Know It

Blog Post #3

The conventional wisdom about Marbury v. Madison is clear. It is perhaps best summarized in this short post called “Marbury v. Madison” on the History Channel website. In that last little section, the author of this blurb is clear about the implications of Marbury v. Madison. But is this accurate? From your close reading of the excerpt in the textbook, think about what kind of constitutional review Marshall is actually engaged in. Everyone from your middle school civics teacher to justices on the Supreme Court cite Marbury as the source of the Court’s power of judicial review. But are they right? In today’s legal landscape, we think of judicial review as a broad exercise of a constitutional veto against laws of Congress or state legislatures, as well as against the actions of the federal or state executive branch officials. We assume that the courts have the ability to strike down all sorts of laws, not just laws dealing directly with the way the Court operates. Using this wide definition, can we really credit Marbury v. Madison for judicial review?

Paper Topic #3: Have we overestimated the importance of Marbury v. Madison in creating the power of judicial review out of whole cloth? Were subsequent exercises of judicial review consistent with Marbury, or were they extensions of a limited power developed in that case?

Suggested Reading: Whittington, Keith E. and Amanda Rinderle. 2012. “Making a Mountain Out of a Molehill? Marbury and the Construction of the Constitutional Canon.” Hastings Constitutional Law Quarterly, 39:823.

#2: SCOTUS Decision Making

Blog Post #2.

The various models of Supreme Court decision making rely on fundamentally different assumptions about the nature of the Supreme Court’s power. Although the Justices almost always use the language of legal methods, many social science experts argue that these methods do not and cannot lead to a single inevitable outcome. As such, we have developed a number of different ways to characterize the way that the Supreme Court justices actually make their decisions. Of course, many American citizens would be unwilling to accept the Supreme Court’s rulings if they believed that Supreme Court Justices were just like any other politician. But the Supreme Court is lucky in that it has the ability to use the uniqueness of its role to promote an image of authority. For an introduction to some of the symbols that help to increase the Court’s perceived legitimacy, complete the activity called “The Look of Authority” at PBS.org.

Paper Topic 2: In the wake of legal realism, does the Supreme Court still have the institutional legitimacy to to make controversial decisions? Does the increased politicization of the appointment process contribute to this? How?

Suggested Reading: Gibson, James L. and Cregory A. Caldeira. 2011. “Has Legal Realism Damaged the Legitimacy of the U.S. Supreme Court?” Law & Society Review, 45(1):195-219.

 

 

#1: Supreme Court Procedure

Blog Post #1

As you may already have noticed, the language of Supreme Court procedure can be a bit confusing. There are a lot of terms introduced in the first reading assignment. To help you straighten them out, you’ll need to read this short Supreme Court Procedure example from the good folks over at SCOTUSblog. It walks you through a hypothetical case to help you understand what the terminology means in context.

The other major highlight of this section of the book is the stunningly heavy workload associated with sifting through the petitions for writs of certiorari. One of the more interesting components of this process is the role of the “cert pool,” which is staffed by law clerks.

Paper Topic 1: Do the Supreme Court clerks wield too much power in the process of selecting cases to be heard on the merits? What could be done about this? 

Suggested Reading: Ward, Artemus and David L. Weiden. 2007. Sorcerers’ Apprentices: 100 Years of Law Clerks at the United States Supreme Court. NYU Press. ISBN: 978-0814794203.

 

#21: Dormant Commerce and State FOIAs

The Dormant Commerce Clause Maze

There has been a great deal of debate about whether the Founders intended that the Commerce Clause be read to include a restriction on the right of states to engage in certain regulation of commerce. This interpretation of the Commerce Clause is called the “dormant” or “negative” Commerce Clause. The application of the Dormant Commerce Clause was one of the main questions in a recent case, McBurney v. Young (2013).

As SCOTUSblog’s Lyle Dennison explains,

Under the Commerce Clause, Congress has broad authority to pass laws regulating trade and commerce among the states, but the courts have found “dormant” within that Clause a ban on states’ discrimination against interstate commercial activity by treating its own residents more favorably than outsiders.

At the center of the new case before the Court are state “freedom of information” (FOI) or “open records” laws.   At one time, at least ten states had FOI laws that restricted access to their agencies’ public records to citizens of their own state.  Seven of those states have since repealed those limitations.  Now, according to critics of such laws, only the states of Arkansas, Tennessee, and Virginia continue to enforce their laws.  Virginia’s law is the one at issue in McBurney v. Young, now before the Court.

“Under the Virginia Freedom of Information Act, which dates from 1968, the right to inspect and copy public records is limited to “any citizens of the Commonwealth.”   At one time, citizens seeking access had to show a “personal or legal interest” in the records, but that was taken out of the law in 1974.  Newspapers and magazines that circulate in the state and radio and TV stations located in the state or broadcasting into it from elsewhere are also assured of access.   The state law only applies, the state has argued, to non-judicial records; court records are open to all, including real estate titles, tax files, and court judgment files.   As is true of many open-records laws, the Virginia law requires those seeking access to pay fees to cover the actual cost of search and copying.” (Lyle Dennison’s Argument Preview: How Open are Public Records?”)

Listen to this wrap-up of the Court’s decision in the case. Post-Decision SCOTUScast–McBurney v. Young.

What should we make of this dormant Commerce Clause? Justice Thomas, a longtime critic of the idea, wrote a very short concurring opinion in which he argued against such a thing:

“I join the Court’s opinion. Though the Court has properly applied our dormant Commerce Clause precedents, I continue to adhere to my view that ‘[t]he negative Commerce Clause has no basis in the text of the Constitution, makes little sense, and has proved virtually unworkable in application, and, consequently, cannot serve as a basis for striking down a state statute.'”(Thomas concurring in McBurney).

Does the Commerce Clause imply a limitation on state regulation of commerce, as something separate from federal preemption? What is the state of the argument today?

#22: The Tonnage Clause

As Americans, we like to pride ourselves with being very familiar with the provisions of our Constitution. But I bet you’ve never heard of the Tonnage Clause. This provision is tucked way down at the end of Article I § 10. It reads:

“No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”

So what is this “duty of tonnage?” Believe it or not, the Supreme Court has dealt with the interpretation of this clause in a recent case, Polar Tankers v. City of Valdez (2009). This case, which also raised Due Process and Commerce Clause questions, represents another way in which the Founders used Article I to rein in attempts by the states to use taxation as a way to burden interstate commerce.

Although the Court did not reach the Commerce Clause question, it is clear that the operation of the Tonnage Clause is to keep states from burdening interstate commerce.

Paper Topic #22: Is the Tonnage Clause an historical artifact? Does it simply replicate the Commerce Clause, or does it add something unique to the contours of Article I’s distribution of economic power among levels of government?

Suggested Reading: Jensen, E. M. (2010). Quirky Constitutional Provisions Matter: The Tonnage Clause, Polar Tankers, and State Taxation of Commerce. Geo. Mason L. Rev.,18, 669.

#21: Dormant Commerce

The Dormant Commerce Clause Maze

There has been a great deal of debate about whether the Founders intended that the Commerce Clause be read to include a restriction on the right of states to engage in certain regulation of commerce. This interpretation of the Commerce Clause is called the “dormant” or “negative” Commerce Clause. The application of the Dormant Commerce Clause was one of the main questions in a recent case, McBurney v. Young (2013).

As SCOTUSblog’s Lyle Dennison explains,

Under the Commerce Clause, Congress has broad authority to pass laws regulating trade and commerce among the states, but the courts have found “dormant” within that Clause a ban on states’ discrimination against interstate commercial activity by treating its own residents more favorably than outsiders.

At the center of the new case before the Court are state “freedom of information” (FOI) or “open records” laws.   At one time, at least ten states had FOI laws that restricted access to their agencies’ public records to citizens of their own state.  Seven of those states have since repealed those limitations.  Now, according to critics of such laws, only the states of Arkansas, Tennessee, and Virginia continue to enforce their laws.  Virginia’s law is the one at issue in McBurney v. Young, now before the Court.

“Under the Virginia Freedom of Information Act, which dates from 1968, the right to inspect and copy public records is limited to “any citizens of the Commonwealth.”   At one time, citizens seeking access had to show a “personal or legal interest” in the records, but that was taken out of the law in 1974.  Newspapers and magazines that circulate in the state and radio and TV stations located in the state or broadcasting into it from elsewhere are also assured of access.   The state law only applies, the state has argued, to non-judicial records; court records are open to all, including real estate titles, tax files, and court judgment files.   As is true of many open-records laws, the Virginia law requires those seeking access to pay fees to cover the actual cost of search and copying.” (Lyle Dennison’s Argument Preview: How Open are Public Records?”)

Listen to this wrap-up of the Court’s decision in the case. Post-Decision SCOTUScast–McBurney v. Young.

What should we make of this dormant Commerce Clause? Justice Thomas, a longtime critic of the idea, wrote a very short concurring opinion in which he argued against such a thing:

“I join the Court’s opinion. Though the Court has properly applied our dormant Commerce Clause precedents, I continue to adhere to my view that ‘[t]he negative Commerce Clause has no basis in the text of the Constitution, makes little sense, and has proved virtually unworkable in application, and, consequently, cannot serve as a basis for striking down a state statute.'”(Thomas concurring in McBurney).

Does the Commerce Clause imply a limitation on state regulation of commerce, as something separate from federal preemption? What is the state of the argument today?

#20: Obroccolicare

Broccoli Mandate

One of the more curious aspects of the Court’s decision in NFIB v. Sebelius (2012) is the fact that the opinions mention the word broccoli a dozen times. This so-called broccoli mandate captured the imagination of Obamacare’s critics in the time leading up to the Court’s decision in Sebelius. The analogy goes like this: if Congress can make you purchase health insurance, does this mean they can make you buy broccoli?”

The opinions in the case did not use the example frivolously; they really engage the problem set out by the conservative opponents to the Patient Protection and Affordable Care Act (or “Obamacare). Conservatives in the Senate laid the groundwork for the broccoli mandate in the Kagan confirmation hearings:

http://youtu.be/DSoWGlyugTo

Justice Scalia posed the broccoli question to the Solicitor General during oral arguments in the case.

“Could you define the market — everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.”

The broccoli mandate question is intended to help us think about the breadth of the Commerce Power. But does this work as an analogy to the government’s argument in Sebilius? What does the Court actually say about the government’s power to mandate insurance purchases under the commerce clause? Here is the majority opinion’s take:

Indeed, the Government’s logic would justify a mandatory purchase to solve almost any problem to “identify any mandate to purchase a product or service in interstate commerce that would be unconstitutional” under its theory of the commerce power. To consider a different example in the health care market, many Americans do not eat a balanced diet. That group makes up a larger percentage of the total population than those without health insurance. The failure of that group to have a healthy diet increases health care costs, to a greater extent than the failure of the uninsured to purchase insurance. Those increased costs are borne in part by other Americans who must pay more, just as the uninsured shift costs to the insured. Congress addressed the insurance problem by ordering everyone to buy insurance. Under the Government’s theory, Congress could address the diet problem by ordering everyone to buy vegetables…. According to the Government, upholding the individual mandate would not justify mandatory purchases of items such as cars or broccoli because, as the Government puts it, “[h]ealth insurance is not purchased for its own sake like a car or broccoli; it is a means of financing health-care consumption and covering universal risks.” But cars and broccoli are no more purchased for their “own sake” than health insurance. They are purchased to cover the need for transportation and food. (Chief Justice Roberts in Sebelius, excerpt courtesy of Professor Linder’s Exploring Constitutional Conflicts)

Justice Ginsberg responds in her concurrence:

As an example of the type of regulation he fears, The Chief Justice cites a Government mandate to purchase green vegetables. One could call this concern “the broccoli horrible.”…Consider the chain of inferences the Court would have to accept to conclude that a vegetable-purchase mandate was likely to have a substantial effect on the health-care costs borne by lithe Americans. The Court would have to believe that individuals forced to buy vegetables would then eat them (instead of throwing or giving them away), would prepare the vegetables in a healthy way (steamed or raw, not deep-fried), would cut back on unhealthy foods, and would not allow other factors (such as lack of exercise or little sleep) to trump the improved diet. Such “pil[ing of] inference upon inference” is just what the Court refused to do in Lopez and Morrison….When contemplated in its extreme, almost any power looks dangerous. The commerce power, hypothetically, would enable Congress to prohibit the purchase and home production of all meat, fish, and dairy goods, effectively compelling Americans to eat only vegetables. Yet no one would offer the “hypothetical and unreal possibilit[y]” of a vegetarian state as a credible reason to deny Congress the authority ever to ban the possession and sale of goods. The Chief Justice accepts just such specious logic when he cites the broccoli horrible as a reason to deny Congress the power to pass the individual mandate…. (Justice Ginsburg in Sebelius, excerpt courtesy of Professor Linder’s Exploring Constitutional Conflicts)

What do you make of the use of this broccoli analogy debate? Does the Chief have a point here? Would it be more constitutionally defensible, as some have argued, if the government had mandated broccoli purchases? What impact does the Court’s decision in Sebelius have on the power of Congress to enact laws dealing with behaviors that impact citizen health (and, therefore, the cost of healthcare)?

A few additional thoughts:

  1. Did you know that there is a whole food freedom movement dedicated to protecting your right to eat whatever the heck you want?
  2. Certainly, a broccoli mandate never would have been signed into law by President H.W. Bush.

#19: Commerce and Race

Our readings in this part of the course deal primarily with the changing interpretation of the Commerce Clause over time. To read these sections of the book, it would be easy to forget that the Court’s decisions on these cases took place in the context of an evolving economic, social, and political environment. An interesting illustration of this phenomenon is the Court’s decisions in Heart of Atlanta Motel v. US, 379 US 241 (1964) and Katenbach v. McClung, 379 US 297 (1964). In these cases, the Court extended the reach of the Commerce Clause to include the power to demand the desegregation of private businesses. While the legal question at issue was the extent of Congress’s power under the Commerce Clause, the actual substance of that decision was about race relations in America. Essentially, the Court marshalled the power of the Commerce Clause to reach where the 14th Amendment could not–private businesses.

Read this short piece by Jack Balkin. Consider the position of the Commerce Clause litigation in the context of the nation’s (slowly) evolving race relations.

Paper Topic #19: Over time, has the Court approached Commerce Clause cases differently when they directly implicate matters of race relations?

Suggested Reading: Spaeth, H. J. (1965). Race Relations and the Warren CourtU. Det. LJ43, 255.

css.php