Earlier, I posted on the interesting position taken by the new Chief Justice on the Gonzalez v. Oregon case, which involved the Controlled Substances Act. There, he joined Justices Scalia and Thomas in a reading of the federal law that would have effectively ended Oregon’s experiment with physician assisted suicide. Now, in Gonzalez v. O Centro Espirit a Beneficente Uniao Do Vegetal, he authors a major opinion reading the Controlled Substances Act (CSA) narrowly to allow a church to import hallucinogenic tea. What gives?

In the Oregon case, the majority rejected a broad reading of the CSA so that it was compatible with Oregon’s Death With Dignity Act. I call this technique of reading statutes narrowly to permit subnational disagreement “interstitial [...]]]>

Earlier, I posted on the interesting position taken by the new Chief Justice on the Gonzalez v. Oregon case, which involved the Controlled Substances Act. There, he joined Justices Scalia and Thomas in a reading of the federal law that would have effectively ended Oregon’s experiment with physician assisted suicide. Now, in Gonzalez v. O Centro Espirit a Beneficente Uniao Do Vegetal, he authors a major opinion reading the Controlled Substances Act (CSA) narrowly to allow a church to import hallucinogenic tea. What gives?

In the Oregon case, the majority rejected a broad reading of the CSA so that it was compatible with Oregon’s Death With Dignity Act. I call this technique of reading statutes narrowly to permit subnational disagreement “interstitial empowerment.” By contrast, in the hallucinogenic tea case, he brushed aside the argument that Congress’ mention of peyote was meant to be exclusive–therefore licensing judicial creativity in spelling out future exemptions to the CSA based on religious-observance grounds. Justice Roberts devastates the federal goverment’s arguments about the need for uniform federal law: “it echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions.”

So, why was Justice Roberts unwilling to interstitially empower ailing individuals but adamant about doing so on behalf of this church? Why a stickler about uniformity in one case, only to poo-poo it in the next one?

One explanation is that he’s more morally comfortable with a religious group’s rather unconventional practices involving drugs than he is with sick people killing themselves with drugs. In other words, he is outcome-determinative because of his moral upbringing. This would be the take of the critical legal scholar or perhaps the attitudinal approach popular in one wing of political science. There is some basis for this account: he signs Scalia’s dissent in Gonzalez in which Scalia goes out of his way to reaffirm the national government’s power to cultivate national moral standards. Still, I haven’t seen enough to say that his person religious views are driving his interpretive decisions.

Another possibility is that he sees an individual right more clearly and directly at stake here–namely free exercise, well established in the case law if disfigured by decisions like Employment Div. v. Smith (ironically, another Oregon case), whereas there is no right to die except in a hypothetical extreme case. That is to say, his conception of rights tips the balance of interests. And yet Roberts seems more interested in rights than in powers.

The third possibility, and I think the most plausible one, is that he’s a nationalist through-and-through (and only a part-time supporter of state’s rights if it doesn’t implicate broad notions of federal power). The enactment of RFRA makes all the difference in the world, and he’s willing to narrow the CSA by reading the two synthetically in ways that favor RFRA rather than the CSA. Where others see a certain amount of confusion in federal law as a result, he sees elegance. When, however, the state seeks a close reading of federal law, it pushes his nationalist button hard: he sees disarray, diffusion of federal interests, and a general nightmare.

There is some dovetail with explanation two: to the extent that no federal right to suicide exists, the strong federal interest weighed in favor of the U.S. position in that case; to the extent that religious exercise is a federal interest, the First Amendment plus RFRA equals two federal interests. And, of course, since every judge is a product of his environment, one would expect that he would appreciate federal interests more viscerally given his career.

One nagging difficulty with this account is that as the Oregon case was finally framed, it should have appealed to Roberts’ nationalist impulses: the majority saw a separation of powers issue of grave importance if the Attorney General could, with a stroke of the pen, rewrite federal law. Yet he would not budge. My best rough explanation is this: with Roberts, national interests beat state interests, and among federal interests, executive prerogative beats congressional oversight. Lawyers should frame their arguments accordingly.

This is where being a non-originalist is a mixed bag, since there is significant historical support for the idea that the rights created by the states were meant to be respected. The good news is that on those rare occasions when Congress is so moved that it acts to extend liberty via federal statute, the new Chief may be sympathetic to that exercise of sovereignty (it’s too early to say for sure, but this may be a positive sign for the future of federal civil rights statutes). The bad news is that when state or local governments act to extend notions of liberty, he may be less inclined to engage in sophisticated analysis to empower them.

Lawyers use the phrase liberally in their briefs; judges sprinkle their opinions with it. But hardly anyone agrees what it means. The phrase: “well settled law.” One of the most interesting exchanges occurred during the Alito hearings over this very phrase:

Ms. Feinstein asked whether Judge Alito did not agree that Roe “was well settled in court.”

He said, “It depends on what one means by the term ‘well settled.’”

This was followed by an extended back-and-forth and careful parsing of what the phrase may or may not mean to Alito.

It would be a mistake to see Alito’s equivocation as merely a product of confusion over terminology. Indeed, Alito’s hesitation to accord Roe the status of “well settled law”–he finally said only that it [...]]]>

Lawyers use the phrase liberally in their briefs; judges sprinkle their opinions with it. But hardly anyone agrees what it means. The phrase: “well settled law.” One of the most interesting exchanges occurred during the Alito hearings over this very phrase:

Ms. Feinstein asked whether Judge Alito did not agree that Roe “was well settled in court.”

He said, “It depends on what one means by the term ‘well settled.’”

This was followed by an extended back-and-forth and careful parsing of what the phrase may or may not mean to Alito.

It would be a mistake to see Alito’s equivocation as merely a product of confusion over terminology. Indeed, Alito’s hesitation to accord Roe the status of “well settled law”–he finally said only that it must be accorded “respect” as “very important precedent”–cannot be understood in an internally coherent way.

Alito was willing to treat the principle of racial equality and the principle of “one person, one vote” as well settled law, but each of these principles–like Roe–remains contested in particular contexts such as affirmative action and redistricting.

John Roberts had easily accepted the idea that Roe was “settled law,” because much remains contested in application. So why the difference in Alito’s strategy in answering Roe-related questions, since he could have just as easily parroted Roberts?

External politics had shifted. In other words, the significance of Alito’s equivocation in embracing the phrase as applied to Roe had everything to do with the mobilization of grass roots and elite conservatives, who collectively doomed Harriet Miers’ nomination to the High Court. Unlike John Roberts, who (after some clever maneuvering) was picked to replace William Rehnquist, Alito needed to prove that he was no Harriett Miers (i.e., neither neutral nor hostile to movement goals). Alito went to great pains to say that he did not believe that Roe could not be reexamined, that stare decisis was not an “inexorable command,” and that he would keep an “open mind” to any argument raised in court. By taking a wider berth around Roe than Roberts, he was signalling to his supporters that he “got” that they saw his replacement of Sandra Day O’Connor as a decisive moment in American history. Hence, no endorsement of Roe, or of Lawerence v. Texas, or of any privacy decision beyond those establishing the right to contraception.

Don’t forget: there are many who believe that Clinton’s presidency–in which he dismantled welfare “as we know it” and triangulated his way around Washington–was merely a blip in a rather decisive conservative realignment. The only thing that has slowed the conservative movement has been the unpredictability of Anthony Kennedy and Justice O’Connor, neither of whom proved to be consistent friends of movement goals.

All of this goes to show that constitutional language–even the phrase “well settled law”–is entirely permeable to politics. The settlement of precedent is not so much a function of the inherent correctness of a ruling or even of the passage of time since it was handed down; rather it is entirely a matter of the degree of social acceptance of a case. One must pay homage to Brown v. Board and Reynolds v. Sims as icons because of their political-cultural stability. In light of Republican successes at the ballot box and in the courts, Casey is no longer the last word–or even a decisive word–about Roe. Nor, apparently, was Roe the best word on the scope of privacy.

The political scientist Robert Dahl once argued that the Supreme Court was a national policymaker that acted largely in ways that were sympathetic to the agenda of other national elites. Polls suggest that Americans have been consistently divided on abortion, but there is a new institutional configuration at the national level–and among this constituency at least, Roe is more contested than it has ever been in recent years.

Of course, Dahl’s theory has always been better at explaining broad institutional patterns than predicting the behavior of individual jurists. It’s one thing to be sensitive to external politics surrounding a judicial confirmation fight; it’s quite another for such an experience to constrain a Justice’s deliberations. Now that he is confirmed, the question remains: as privacy cases make their way to the High Court, will Justice Alito continue to see rapidly shifting political-legal terrain as his answers suggest, or narrow cases to be decided in light of 30+ years of social and institutional acceptance of a legal rule?

So, what might be gleaned from the New Chief’s silent joining of Justice Scalia’s dissenting opinion in Gonzalez v. Oregon? First, as to be expected (at least for now), he is influenced more by his experiences as a former executive branch lawyer and member of the political elite than he is by any popular backlash against the unitary executive model.

Second, national interests trump state interests–even where there is ambiguity in the federal statute. His own questions at oral argument, particularly his concern for the uniformity and supremacy of federal law, suggested this outcome. Federalism is messy, and it appears he is unwilling to countenance too much muss. He, like Scalia, is willing to read Congress’ enumerated powers broadly (and the core [...]]]>

So, what might be gleaned from the New Chief’s silent joining of Justice Scalia’s dissenting opinion in Gonzalez v. Oregon? First, as to be expected (at least for now), he is influenced more by his experiences as a former executive branch lawyer and member of the political elite than he is by any popular backlash against the unitary executive model.

Second, national interests trump state interests–even where there is ambiguity in the federal statute. His own questions at oral argument, particularly his concern for the uniformity and supremacy of federal law, suggested this outcome. Federalism is messy, and it appears he is unwilling to countenance too much muss. He, like Scalia, is willing to read Congress’ enumerated powers broadly (and the core of state’s rights narrowly in advance of national interests)–even when the strongest interest appears to be in cultivating moral standards. This is bad news for proponents of interstitial federalism.

Third, his willingness to sign Scalia’s dissent in toto–and thereby subjugate his own ego in a high-profile matter–shows that he is as savvy as his confirmation hearings suggested. The practice of writing separately has almost become a custom with the Rehnquist Court. He is willing to buck this trend, to allow Scalia to speak for this coalition on this day with a single voice, and to build his alliances carefully–starting with his natural friends.

Death With Dignity–Part I

Death With Dignity–Part II

But I have to think that Oregon is very, very lucky regarding the timing of the case.

Justice O’Connor was still on the Court–her “last hurrah” so to speak. We won’t know for certain until someone decides to talk, but Kennedy was clearly wavering at oral argument (worrying about the possible consequences of each outcome) while O’Connor seemed a safe vote for Oregon given her aggressive questioning of the [...]]]> Justice Kennedy’s opinion affirmed Oregon’s statute, and overturned Attorney General Ashcroft’s interpretive rule claiming that the use of controlled substances to assist suicide is not a medical practice and therefore unlawful under the CSA (Controlled Substances Act). Technically, the case involved whether the Attorney General’s interpretation should be accorded any deference; here, the Court concluded “no.”

But I have to think that Oregon is very, very lucky regarding the timing of the case.

Justice O’Connor was still on the Court–her “last hurrah” so to speak. We won’t know for certain until someone decides to talk, but Kennedy was clearly wavering at oral argument (worrying about the possible consequences of each outcome) while O’Connor seemed a safe vote for Oregon given her aggressive questioning of the U.S. (esp. in suggesting that the regulation of medicine is a “traditional state power”). Joining the majority allowed Kennedy to vindicate state’s rights and individual autonomy in one fell swoop, and to have the most influence on an exceedingly important opinion. The 6-3 outcome may mask complicated positions, and I have to believe that Justice Alito would have inclined toward the Government’s position and perhaps moved Kennedy in that direction.

Just as important, the general climate was highly conducive to the Court seeing this as a serious separation of powers case. In other words, this was another case involving a power grab by the Executive Branch a la Hamdi v. Rumsfeld. The breaking news about secret spying surely didn’t help. The opinion says that “the Attorney General claims extraordinary authority,” effectively arguing that the statute “delegates to a single Executive officer the power to effect a radical shift of authority from the States to the Federal Government to define general standards of medical practice in every locality.” Hello, slipperly slope!

Once a majority of the Justices framed the issue this way, the rest of the administrative rule-making analysis and statutory interpretation fell into place. The goal was to permit multiple layers of involvement in the regulatory regime: The CSA delegated “divided” authority among different executive agencies, it expressly contemplated state regulation of the practice of medicine, the phrase “legimitate medical purpose” could reasonably include death-inducing behavior by physicians, and so on.

Ever the proponent of the exegetical approach, Justice Scalia is willing to read the word “control” broadly to include all processes involved in the manufacture and distribution of drugs, rather than as the majority reads it, namely that it is narrowly addressed to recreational use and distribution of illicit drugs. The new Chief, John Roberts, experiences a mindmeld moment with Scalia on this matter, and he joins the opinion.

Scalia’s most revealing comment comes near the end of his dissent, in which he admits that he has no trouble with the attempt to impose “public morality” on a national scale–apparently even when it is imposed by the executive alone.

An interesting question is why Oregon lost Justice Thomas, who is moved to write separately. Remember, Thomas dissented in Gonzalez v. Raich, in which the Court struck down California’s medical marijuana law as interfering with the CSA’s regime. The state had an extremely difficult argument because Congress has specifically enacted a law listing marijuana as a schedule I substance. By contrast, the Republican Congress had tried to ban assisted suicide and failed to muster enough votes before Ashcroft issued the interpretive rule.

There are three possible explanations for Justice Thomas’ sudden coolness toward federalism. First, he really does believe that Raich decided every possible federal-state question that could arise involving the CSA. I think this is unlikely–not even Scalia would go that far in his devotion to stare decisis–and Justice Thomas has in other federalism cases shown a willingness to narrowly construe inconvenient precedent. Second, he does not particularly believe that life-ending decisions are the kinds of things that implicate core state powers. A third possibility is that he is personally opposed to suicide of any kind, and his willingness to permit the cultivation of national moral standards trumps his sympathy for state sovereignty. In my view, the answer involves some combination of explanations two and three.

So, another sportswriter has gotten under the skin of University of Oregon President Dave Frohnmayer. Awhile back, Sports Illustrated shined a national spotlight on the football program’s lavish digs.

Here is ESPN’s account of Phil Knight’s (read: NIKE’s) alleged influence on the track program and the university generally, prompting Frohnmayer to fire back.

So, does big-time college sports aid or damage academic goals?

The turning of universities into football factories is a disquieting phenomenon. Every athlete has a dream to make the NFL, and very few have a realistic shot at the golden ticket. Having a top division I football program certainly raises the national profile of a university, but is the bargain always a good one for the student-athlete?

There is also some silliness that [...]]]>

So, another sportswriter has gotten under the skin of University of Oregon President Dave Frohnmayer. Awhile back, Sports Illustrated shined a national spotlight on the football program’s lavish digs.

Here is ESPN’s account of Phil Knight’s (read: NIKE’s) alleged influence on the track program and the university generally, prompting Frohnmayer to fire back.

So, does big-time college sports aid or damage academic goals?

The turning of universities into football factories is a disquieting phenomenon. Every athlete has a dream to make the NFL, and very few have a realistic shot at the golden ticket. Having a top division I football program certainly raises the national profile of a university, but is the bargain always a good one for the student-athlete?

There is also some silliness that comes from the corporate “branding” culture. To make sure the rest of the university is on the same page as the athletic program, we all must use the “O” logo that appears on the side of a football player’s helmet rather than the tasteful university seal. Frankly, it looks like a giant green zero.

On the other hand, without Phil Knight’s generosity, the University of Oregon’s gorgeous Law School (dedicated to his father, an alumnus) almost certainly would not have been built–at least on an ambitious timetable. Knight has also endowed university professorships which are valuable in retaining productive scholars. Part of me wishes he would drop more funds directly on the law school. Maybe I can start up an intramural basketball team–I’ll even let him design the jerseys.

The top vote-getters in each category:

1. OPINIONS AND ORDERS

Honorable Paul H. Cassell, U.S. v. Angelos, 345 F. Supp.2d 1227 (D. Utah 2004)

Honorable Alex Kozinski, In re Complaint of Judicial Misconduct, 425 F.3d 1179 (9th Cir. 2005) (dissenting)

Honorable Mark P. Painter, Kohlbrand v. Ranieri, 823 N.E.2d 76 (Ohio Ct. App. 2005)

Honorable James M. Rosenbaum,Rohwer v. Federal Cartridge Co. 2004 U.S. Dist. Lexis 23744 (D. Minn.)

Honorable Antonin Scalia, Roper v. Simmons, 543 U.S. 551 [...]]]> The Green Bag has published its first ever “Almanac of Useful and Entertaining Tidbits for Lawyers & Reader of Good Legal Writing from the Past Year: Selected by the Legal Luminaries and Sages on our Board of Advisors.” (whew!–it’s a lawyerly mouthful; too bad the editors couldn’t practice what they’re preaching).

The top vote-getters in each category:

1. OPINIONS AND ORDERS

Honorable Paul H. Cassell, U.S. v. Angelos, 345 F. Supp.2d 1227 (D. Utah 2004)

Honorable Alex Kozinski, In re Complaint of Judicial Misconduct, 425 F.3d 1179 (9th Cir. 2005) (dissenting)

Honorable Mark P. Painter, Kohlbrand v. Ranieri, 823 N.E.2d 76 (Ohio Ct. App. 2005)

Honorable James M. Rosenbaum,Rohwer v. Federal Cartridge Co. 2004 U.S. Dist. Lexis 23744 (D. Minn.)

Honorable Antonin Scalia, Roper v. Simmons, 543 U.S. 551 (2005) (dissenting)

Honorable Diane P. Wood, Gore v. Ind. Univ., 416 F.3d 590 (7th Cir. 2005)

2. BOOKS

David Currie, The Constitution in Congress: Democrats and Whigs, 1829-1861 (Chicago Univ. Press 2005)

Linda Greenhouse, Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey (Henry Holt 2005)

Sadakat Kadri, The Trial: A History, From Socrates to O.J. Simpson (Random House 2005)

3. SHORT ARTICLES

Honorable Elaine E. Bucklo, “Putting Your Worst Foot Forward,” Litigation, Winter 2005

Honorable Alex Kozinski, “The Appearance of Propriety,” Legal Affairs, Jan./Feb. 2005

Burt Neuborne, “Courting Trouble,” The American Prospect, Jan. 4, 2005

Margaret Talbot, “Supreme Confidence,” The New Yorker, Mar. 28, 2005

4. BRIEFS AND MOTIONS

Honorable Walter Dellinger, et al., Professors’ Brief, Rumsfeld v. Forum for Academic & Institutional Rights, 2005 U.S. S. Ct. Briefs Lexi 630 (Setp. 21, 2005)

Mark A. Perry, et al., Brief for the Ethics & Public Policy Center, Van Orden v. Perry, 2005 U.S. S. Ct. Briefs Lexis 113 (Jan. 31, 2005)

5. LONG ARTICLES

Anonymous, “Jazz Has Got Copyright and that Ain’t Good,” 118 Harv. L. Rev. 1940 (2005)

Bryan A. Garner, “Don’t Know Much About Punctuation: Notes on a Stickler Wannabe,” 83 Tex. L. Rev. 1443 (2005)

Brian C. Kalt, “The Perfect Crime,” 93 Geo. L.J. 675 (2005)

John H. Langbein, “Questioning the Trust Law Duty of Loyalty: Sole Interest or Best Interest?,” 114 Yale L.J. 929 (2005)

6. MISCELLANY

Honorable Jon O. Newman, “My First Appellate Argument: It Can Only Get Better,” 6 J. App. Prac. & Process 177 (2004)

Charles A. Sullivan, “The Under-Theorized Asterisk Footnote,” 93 Geo. L.J. 1093 (2005)

A full list of “recommended readings” is also produced, with a number of interesting pieces, including two by yours truly. It is an eclectic and wonderful list!

For a gander at the list of honorees or to order your own hardcopy, go here