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Author: Josh Blackman

17

Federalism 2.0 on the Roberts Court

One of the hallmarks of the Rehnquist Court was the so-called “New Federalism.” In cases like New York v. United States, Printz v. United States, United States v. Lopez, and United States v. Morrison, the Supreme Court identified new limits on the power of the federal government. The driving aim of “New Federalism” on the Rehnquist Court was to shift the balance of power towards the states and away from the federal government. In many respects, this “New Federalism” movement ground to halt in Gonzales v. Raich when the Court–including Justices Scalia and Kennedy–indicated that it was not willing to continue pushing the envelope in reducing the power of the Federal Government.

The Roberts Court has taken a different approach to Federalism–call it Federalism 2.0. This federalism focuses on protecting certain structural features of our constitutional system, not to benefit states’ rights qua states’ rights, but rather to protect individual liberty as an end unto itself. In Bond v. United States, Justice Kennedy identified the two purposes of separation of powers (this passage was repeated by Chief Justice Roberts in Stern v. Marshall).

“Separation-of­ powers principles are intended, in part, [1] to protect each branch of government from incursion by the others. Yet the dynamic between and among the branches is not the only object of the Constitution’s concern. [2] The structural principles secured by the separation of powers protect the individual as well.”

The former rationale is the reason behind “New Federalism.” The latter rationale is the reason behind Federalism 2.0.

In the words of Justice Kennedy in Bond v. United States–a unanimous case I discussed at some length here–federalism does not merely set the boundaries “between different institutions of government for their own integrity. ‘State sovereignty is not just an end in itself: ‘Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.’”

Here, we see that the focus is not simply on states’ rights, or sovereignty–really the bailiwick of the Rehnquist Court’s New Federalism–but the conception of enforcing structural limitations as a means to protect individual liberty. In Free Enterprise Fund v. Public Company Accounting Oversight Board, Chief Justice Roberts, citing Bowsher v. Synar, noted that “[t]he Framers recognized that, in the long term, structural protections against abuse of power were critical to preserving liberty.” Liberty of the individual–not just the rights of the state.

Further, Federalism 2.0 does not merely delineate between the state and federal governments–it also creates an important distinction between the three branches of our tripartite system. In Stern v. Marshall, Chief Justice Roberts made clear that judges with lifetime tenure and guaranteed salaries–and not Article I judges–are the sole arbiters responsible for protecting individual rights. Citing Bond, the Chief noted, “Article III protects liberty not only through its role in implementing the separation of powers, but also by specifying the defining characteristics of Article III judges.” “Article III imposes some basic limitations that the other branches may not transgress.” And it is the role of Article III judges to enforce these limitations.

So what is the takeaway from this nascent Federalism 2.0? I think challenges to certain federal laws may have more success if the argument is framed in terms of federalism as protective of individual liberty, as opposed to merely challenging federal action as outside the bound of enumerated powers. As we saw in Comstock v. United States, an opinion joined by the Chief, and joined in judgment by Justices Alito and Kennedy, the Court is remiss to adopt a narrowed cabined view of the Necessary and Proper Clause, as well as the Commerce Clause.

While the relationship between liberty and enumerated powers is tight, focusing solely on enumerated powers or the necessary and proper clause is so 1995. This new Court requires a new argument–look to the liberty interests, as a corollary of federalism. “When government acts in excess of its lawfulpowers, that liberty is at stake.” Bond v. United States.

Think about reframing the argument in Raich. Why did the Court reach the conclusion it did? Because of the importance of the national federal interest in policing narcotics. Very little attention was paid to the tragic health and liberty interests of Angel Raich. The word “liberty” or “freedom” shockingly appears nowhere in either the majority, concurring, or dissenting opinions. For Angel, medicinal marijuana was her only refuge from intolerable pain, and represented a key element of her personal autonomy and human dignity. If the Court construed federalism here as a means to protect Angel’s individual liberty, rather than as a reflection on enumerated powers, perhaps the vote may have been different. Particularly for Justice Kennedy.

Additionally, this Roberts Court framework puts (perhaps intentionally) the liberal justices in a somewhat awkward position. They are generally in favor of construing federal powers broadly, but are also keen on protecting individual liberty interests (with the usualexception of Justice Breyer). Phrased in this manner, we have a convergence of federalist concerns and liberal concerns that could yield an interesting evolution in constitutional jurisprudence.

Going forward, if the argument is presented in terms of an “individual [who] has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States” and “can assert injury from governmental action taken in excess of the authority that federalism defines,” Bond v. United States, I think challengers may have more success.

Stay tuned for more on Federalism 2.0.

Cross-Posted at JoshBlackman.com

1

Senate Approves Bill To Protect Military Funerals Post Snyder v. Phelps

The Senate has approved a bill that would provide additional criminal and civil sanctions for protestors at military funerals. The text of the bill makes changes to two statutes: 18 U.S.C. 1388 (a criminal provision that applies to all funerals of service-members, even at private cemeteries) and 38 U.S.C. 2413 (a civil provision that applies to federal cemeteries).

The bill makes a number of changes to the criminal provision.

First, it makes a number of changes to where and when protests can occur:

Protests are forbidden 120 minutes before, and 120 minutes, after a funeral. Previously, the limit was 60 minutes before and 60 minutes after. Protests are forbidden 300 feet from the location of the funeral. Previously, the limit was 150 feet. Now protests are forbidden not just near the cemetery, but “within 500 feet of the boundary of the residence, home or domicile of any surviving member of the deceased person’s immediate family and includes any individual willfully making or assisting in the making of any noise or diversion that disturbs or tends to disturb the peace of the persons located at such location.”

Second, it modifies the potential criminal penalties of protests:

The possible term of imprisonment increased from 1 years to 2 years. Now, the “The Attorney General may institute proceedings under this section.” Statutory damages range from “not less than $25,000 or more than $50,000 per violation.”

Third, it creates private causes of actions in federal courts for aggrieved family members, whereby district courts can issue injunctive relief. Now District Courts have jurisdiction to “to prevent and restrain violations of this section.” The bill would also create specific causes of action that allows members of the immediate family “who suffer injury as a result of conduct that violates this section” to sue and recover damages, costs of suit, as well as “attorneys’ fees.”

What is perhaps most potentially troublesome about this bill is how it defines the offense–rather nebulously. The definition of forbidden activity is quite broad–”includes any individual willfully making or assisting in the making of any noise or diversion that is not part of such funeral and that disturbs or tends to disturb the peace or good order of such funeral.” The bill creates a “Rebuttable Presumption”:

    It shall be a rebuttable presumption that the violation was committed willfully for purposes of determining relief under this section if the violator, or a person acting in concert with the violator, did not have reasonable grounds to believe, either from the attention or publicity sought by the violator or other circumstance, that the conduct of such violator or person would not disturb or tend to disturb the peace or good order of such funeral, impede or tend to impede the access to or egress from such funeral, disrupt or tend disrupt to a funeral procession, or disturb or tend to disturb the peace of any surviving member of the deceased person’s immediate family who may be found at the residence, home or domicile of the deceased person’s immediate family on the date of the service or ceremony.

What do you think? Constitutional problems? Vagueness (“peace or good order of such funeral”)? Especially considering the Court’s disapproval of the California statute in EMA that failed to define violence. Will there actually be any federal criminal prosecutions instituted by the Attorney General under this section against the Westboro Baptists? Stay tuned.

Cross-posted at JoshBlackman.com.

11

Justice Thomas, Parental Paternalism, and Originalism at the Wrong Time

Justice Thomas’ opinion in EMA is rather curious. In short, he argues that the Framing Era did not view children as deserving of free speech rights, and no right exists for people to speak to children without their parents’ consent (that includes video game purveyors). Ergo, the FIrst Amendment does not conflict with the California law, and it is Constitutional.

A few things stand out.

First, this broad view of parental paternalism continues a philosophy that Thomas discussed in his opinions in Troxel v. GranvilleMorse v. FrederickSafford v. Redding, and most recently in Turner v. Rogers. Broadly stated, he does not view minors as holders of rights, and puts a lot of stake in parents (specifically a “nuclear family”) to protect the interests of the child. When there is any doubt, Thomas will side with the parents (and therefore the state).

Even assuming that video games are speech, in most applications the California law does not implicate the First Amendment. All that the law does is prohibit the direct sale or rental of a violent video game to a minor by someone other than the minor’s par- ent, grandparent, aunt, uncle, or legal guardian. Where a minor has a parent or guardian, as is usually true, the law does not prevent that minor from obtaining a violent video game with his parent’s or guardian’s help. In the typical case, the only speech affected is speech that bypasses a minor’s parent or guardian. Because such speech does not fall within “the freedom of speech” as originally under- stood, California’s law does not ordinarily implicate the First Amendment and is not facially unconstitutional.3

After assuming that a minor has a parent or guardian–perhaps usually true, but not always so–Thomas is confident a parent can ensure that his or her child is properly cared for.

Second, we see another case where Justice Thomas is willing to eschew stare decisis to reflect what he views as an originalist understanding of the Constitution. This mirrors his rejection of the Slaughter-House Cases in McDonald v. Chicago.

Admittedly, the original public understanding of a constitutional provision does not always comport with modern sensibilities. See Morse, 551 U.S., at 419 (THOMAS, J., concurring) (treating students “as though it were still the 19th century would find little support to- day”). It may also be inconsistent with precedent. See McDonald, 561 U. S., at ___–___ (THOMAS, J., concurring in part and concurring in judgment) (slip op., at 48– 52) (rejecting the Slaughter-House Cases, 16 Wall. 36 (1873), as inconsistent with the original public meaning of the Privileges or Immunities Clause of the Fourteenth Amendment).

This, however, is not such a case.

For this, Justice Scalia smacks down his frequent-partner-in-law:

JUSTICE THOMAS ignores the holding of Erznoznik, and denies that persons under 18 have any constitutional right to speak or be spoken to without their parents’ consent. He cites no case, state or federal, supporting this view, and to our knowledge there is none. . . . In the absence of any precedent for state control, uninvited by the parents, over a child’s speech and religion (JUSTICE THOMAS cites none), and in the absence of any justification for such control that would satisfy strict scrutiny, those laws must be unconstitutional. This argument is not, as JUSTICE THOMAS asserts, “circular,” ibid. It is the absence of any historical warrant or compelling justification for such restrictions, not our ipse dixit, that renders them invalid.

Thomas, citing Heller, is adamant that the lack of precedents is irrelevant if originalism dictates a different result

The majority’s circular argument misses the point. The question is not whether certain laws might make sense to judges or legislators today, but rather what the public likely understood “the freedom of speech” to mean when the First Amendment was adopted. See District of Columbia v. Heller, 554 U. S. 570, 634–635 (2008). I believe it is clear that the founding public would not have understood “the freedom of speech” to include speech to minor children bypassing their parents. It follows that the First Amendment imposes no restriction on state regulation of such speech. To note that there may not be “precedent for [such] state control,” ante, at 8, n. 3, “is not to establish that [there] is a constitutional right,”

Third, Justice Thomas is guilty of “originalism at the wrong time.” Here we have a California Law that touches the First Amendment. We are not talking about the FIrst Amendment directly, but rather the FIrst Amendment as applied through the 14th Amendment. The relevant temporal inquiry is not the founding era, but 1868 (when the 14th Amendment was ratified).

Yet he cites, at great length the views of the founding generation on the “Freedom of speech.”

The prac-tices and beliefs of the founding generation establish that “the freedom of speech,” as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians.

Although much has changed in this country since the Revolution, the notion that parents have authority over their children and that the law can support that authority persists today.

Fourth, and finally, his originalist inquiry was rather perfunctory, and a bit Ipso Facto.

In light of this history, the Framers could not possibly have understood “the freedom of speech” to include an unqualified right to speak to minors. Specifically, I am sure that the founding generation would not have understood “the freedom of speech” to include a right to speak to children without going through their parents. As a conse- quence, I do not believe that laws limiting such speech— for example, by requiring parental consent to speak to a minor—“abridg[e] the freedom of speech” within the origi- nal meaning of the First Amendment.

That is a rather weak argument. The entire analysis section, actually considering the California law, was about 1.25 pages long.

Justice Thomas remains an iconoclast, and an individualist on the bench.

Cross-Posted at JoshBlackman.com.

0

FantasySCOTUS v. SCOTUSBlog

In a previous column on the National Law Journal’s Supreme Court Insider, we compared our predictions for the final 14 cases with predictions made by Tom Goldstein at SCOTUSBlog (Tom did not make predictions for two of the 14 cases). While the sample size is rather small (14 cases out of the total 81 cases, about 17% of the cases decided this term) this abbreviated experiment allows for an informal comparison between the wisdom of the crowds and the accuracy of experts (a dynamic we explored in this article, forthcoming in the Northwestern Journal of Technology and Intellectual Property).

At the end of the term, the final score is FantasySCOTUS: 11, SCOTUSBlog: 9 (79% to 64%).

It is not too surprising that 10,000 members of FantasySCOTUS, on the aggregate, generated more accurate results, than a single expert (even an expert as knowledgeable and skilled as Tom). What our members lack in credentials they make up for in a wide-range of experience (many top-ranked players aren’t even attorneys), and knowledge on a breadth of topic (many players focus on statistics, political science, and even psychology). On the aggregate, this allows them to produce better, more informed predictions than an individual expert.

These results reflect the outcome of the 2002 Supreme Court Forecasting Project, where a cadre of Supreme Court “experts” (SCOTUS litigators, former clerks, and Professors) was able to accurately predict about 60% of the cases (Tom got about 64% correctly). In contrast, this Term, the members of FantasySCOTUS have been able to predict nearly 70% of the cases correctly (the top players approached 80%). FantasySCOTUS predicted about 79% correctly.

FantasySCOTUS has a number of additional benefits over the expert prediction approach; namely, timing. FantasySCOTUS yielded ex ante predictions for these 14 cases months ago. Experts, like Tom, only attempt (publicly at least) to make these predictions at the end of the term with few cases remaining. Usually the Justices write an equal number of opinions for each sitting. Through the process of elimination, Tom determined potential authorship, and made these predictions with the added benefit of knowing who has not yet authored opinions for the various sittings. When authorship changes, a Justice loses a majority, or an opinion flips–as I suspect happened in EMA, with Justice Alito losing a majority–the calendar approach is imprecise. FantasySCOTUS predictions were made months ago, well before authorship of any opinions had been determinable.

Additionally, the ex ante reliability of Tom’s predictions are unclear. While he can couch his prognostications with language like “my relatively uninformed read” (for Stern v. Marshall, which he got wrong) or “it would seem sensible” (for Goodyear, which he failed to provide a prediction) these hedged predictions are still somewhat nebulous, and unreliable. The confidence of FantasySCOTUS predictions, in contrast, are made with an attendant confidence level–90%, 95%, 99%. In other words, we known in advance when our predictions are likely not going to be accurate.

We look forward to a new season of FantasySCOTUS next term, with even more reliable predictions.

Cross-Posted at JoshBlackman.com. This post was co-authored by Josh Blackman and Corey Carpenter.

0

Summary of Today’s Opinions

In Brown v. EMA (video game violence case, formerly Schwarzenneger v. EMA), the Supreme Court affirmed.  The opinion is here. The California is struck down in an opinion by Justice Scalia. Justice Alito concurred in judgment, joined by Chief Justice Roberts. Justices Thomas and Breyer filed separate dissents.

I have an instant analysis of the opinion here. I have another post on Justice Breyer’s willingness to defer to legislative findings (and even findings the legislature “could” have made) of laws that infringe on individual liberty. His dissent is quite similar to his McDonald v. Chicago dissent. Justice Breyer’s attempts to search outside the record to find reasons to uphold the law sounds more in rational basis review, and less in strict scrutiny.

In the Arizona Election cases (consolidated) the Supreme Court reversed 5-4, holding “Arizona’s matching funds scheme substantially burdens political speech and is not sufficiently justified by a compelling interest to survive First Amendment scrutiny.”

I have an instant analysis of this case here.

In J. McIntyre Machinery, Ltd. v. Nicastro, the Supreme Court reversed the New Jersey Supreme Court and a plurality held that personal jurisdiction was not proper in this case. Interestingly, in both Nicastro, and EMA, both Justices Breyer and Alito were hesitant about evolving the law to meet new technologies.

In Goodyear Dunlop Tires Operations, S. A. v. Brown, the Supreme Court, Justice Ginsburg for a unanimous Court reversed the Court of Appeals of North Carolina and found that “Petitioners were not amenable to suit in North Carolina on claims unrelated to any activity of petitioners in the forum State.”

0

FantasySCOTUS: Final Predictions for OT 2010

Here are the FantasySCOTUS Prediction Tracker forecasts for the final 5 cases. I will have full coverage of the Term in review after these opinions are announced.

Schwarzenegger v. Entertainment Merchants Association Affirm Details
Goodyear Lux. Tires, SA v. Brown Reverse Details
J. McIntyre Machinery v. Nicastro Affirm Details
McComish v. Bennett Reverse Details
Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett Reverse Details
1

Justice Scalia on Enhanced Protection For “Core” Rights and the Second Amendment

In District of Columbia v. Heller, Justice Scalia wrote that the heart of the Second Amendment is “the core lawful purpose of self-defense” — the “right of law-abiding, responsible citizens to use arms in defense of hearth and home.”

Justice Breyer, in dissent, disputes this, and questioned “What is its basis for finding that to be the core of the Second Amendment right?”

Joseph Blocher in a leading article, argues that courts should identify the “core values” of the Second Amendment in order to develop a meaningful analytical framework.

What is the “core” of a right? And should that “core”–as opposed its penumbras–receive enhanced protections?

In Duryea v. Guarnieri, Justice Scalia’s solo dissent has a lengthy discussion of the “core” of a right.

The public-concern limitation makes sense in the context of the Speech Clause, because it is speech on mat-ters of public concern that lies “within the core of First Amendment protection.” Engquist v. Oregon Dept. of Agri-culture, 553 U. S. 591, 600 (2008). The Speech Clause“has its fullest and most urgent application to speech uttered during a campaign for political office.” Citizens United v. Federal Election Comm’n, 558 U. S. ___, ___ (2010) (slip op., at 23) (internal quotation marks omitted).

The unique protection granted to political speech is grounded in the history of the Speech Clause, which “was fashioned to assure unfettered interchange of ideas for thebringing about of political and social changes desired by the people.” Connick, supra, at 145 (internal quotation marks omitted). But the mere fact that we have a longstanding traditionof granting heightened protection to speech of public concern does not suggest that a “public concern” requirement should be written into other constitutional provisions. We would not say that religious proselytizing is entitled to more protection under the Free Exercise Clause than private religious worship because public proclamations are “core free exercise activity.” Nor would we say that the due process right to a neutral adjudicator is heightened inthe context of litigation of national importance because such litigation is somehow at the “core of the due process guarantee.” Likewise, given that petitions to redress private grievances were such a high proportion of petitions at the founding—a proportion that is infinitely higher if lawsuits are considered to be petitions—it is ahistorical to say that petitions on matters of public concern constitute “core petitioning activity.”

I am not sure if this section is directed at the Second Amendment, but I can’t help but think it will be cited in future discussions of the “core” of rights, and its relationship to history. In fact, I am not even sure which way this cuts. Scalia seems to be saying that rights at the “core” need not necessarily receive enhanced protection. This would suggest that Second Amendment rights at the “core” did not warrant heightened protection. Or, is he saying that because the historical pedigree is lacking, they are  not part of the “core,” whereas the right of self-defense identified in Heller is pre-existing, and thus could be core.

In fact, Justice Scalia actually cites Heller for this proposition, so I think this may be the best answer:

The reference to “the right of the people” indicates that thePetition Clause was intended to codify a pre-existing individual right, which means that we must look tohistorical practice to determine its scope. See District of Columbia v. Heller, 554 U. S. 570, 579, 592 (2008).

This case, at first glance, was rather blase, but the dissent opens up a whole new can of worms (not quite a Pandora’s Box) about reinvigorating a new clause of the Constitution. Chief Justice Roberts, Justice Alito seemed remiss to do this in McDonald with respect to the privileges or immunities clause. Here, it seems they are OK with reinvigorating the petition clause.

Cross-Posted at JoshBlackman.com.

3

Chevron and Supreme Court Amici as a Notice and Comment Process

In American Elec. Power Co. v. Connecticut, Justice Ginsburg discussed Chevron deference. One of the reasons for deference is that the Courts lack the ability to obtain the expert information agencies need to decide cases outside of a notice and comment process.

It is altogether fitting that Congress designated an expert agency, here, EPA, as best suited to serve as primary regulator of greenhouse gas emissions. The expert agency is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunc-tions. Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order. See generally Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 865–866 (1984). Judges may not commission scientific studies or convene groups of experts for advice, or issue rules under notice-and-comment procedures inviting input by any interested person, or seek the counsel of regulators in the States where the defendants are located. Rather, judges are confined by a record comprising the evidence the parties present.

This discussion may be true as a theoretical matter, and as a practical matter in lower courts, though it hardly captures how Supreme Court litigation works.

First,. while Judges cannot commission studies or convene experts for advice, by granting certiorari on a high-profile case, the Court is effectively sending out an engraved invitation to every possible expert to submit an amicus. In fact, I would not be surprised if more attention was paid by amici to the Supreme Court than to a rulemaking before a regulatory agency.

Second, the Justices routinely hear from the United States, the States, and other local governments. The Court does in fact seek the position of the United States through the CVSG (Call for the View of the Solicitor General). Often, the Court will divide the time for arguments to allow other interested parties, such as the United States or a state to present their interests–sometimes without the party’s consent, such as in McDonald v. Chicago. The Court even appoints counsel to argue a side if the parties no longer are willing to defend a judgment! And if states are to be impacted, you can be sure states will file an amicus brief. There is seldom a lack of interests represented at One First Street. The Justices ensure that. If anything, there are too many!

Third, the Court is not confined by a record comprising the evidence the parties present.” By my count, there were about 30 amici filed that provided scores of information the Court could have relied on to decide the case. None of this information was available at the trial level. None was admitted as evidence through the laws of evidence or Daubert.

I am not doubting Chevron as a theoretical matter, and do not assert that the Justices are skilled enough to interpret the sophisticated data. However in Supreme Court litigation, where the issues are so thoroughly briefed on all conceivable sides, is this reasoning quite as valid as it is for lower courts?

Further, the extent to which the Court can take judicial notice of these statistics and studies–which were not introduced at trial through an adversarial process–as a matter of “common sense” is questionable.

Cross-Posted at JoshBlackman.com.

0

Summary of Today’s Supreme Court Opinions

Four new opinions today. Still no Brown v. EMA (video game violence), but we received Wal-Mart v. Dukes. As expected, it was a reversal, but Justice Ginsburg wrote separately.

In Wal-Mart v. Dukes, Justice Scalia delivered the opinion of the Court. Chief Justice Roberts and Justices Kennedy, Thomas, and Alito joined entirely. Justices Ginsburg, Breyer, Sotomayor, and Kagan joined as to Parts I and III. The entire Court held that “The certification of the plaintiff class was not consistent with Rule 23(a).”

Justice Ginsburg field an opinion concurring in part, and dissenting in part, in which Breyer, Sotomayor, and Kagan joined.

The class in this case, I agree with the Court, should nothave been certified under Federal Rule of Civil Procedure 23(b)(2). The plaintiffs, alleging discrimination in viola-tion of Title VII, 42 U. S. C. §2000e et seq., seek monetary relief that is not merely incidental to any injunctive ordeclaratory relief that might be available. See ante, at 20–27. A putative class of this type may be certifiable underRule 23(b)(3), if the plaintiffs show that common class ques- tions “predominate” over issues affecting individuals— e.g., qualification for, and the amount of, backpay or com-pensatory damages—and that a class action is “superior” to other modes of adjudication.Whether the class the plaintiffs describe meets the specific requirements of Rule 23(b)(3) is not before theCourt, and I would reserve that matter for consideration and decision on remand.1 The Court, however, disqualifies the class at the starting gate, holding that the plaintiffs cannot cross the “commonality” line set by Rule 23(a)(2). In so ruling, the Court imports into the Rule 23(a) de-termination concerns properly addressed in a Rule 23(b)(3) assessment.

In Borough of Duryea v. Guarnieri, Justice Kennedy wrote for Chief Justice Roberts, and Justices Ginsburg, Breyer, Alito, Sotomayor, and Kagan, that “A government employer’s allegedly retaliatory actions against anemployee do not give rise to liability under the Petition Clause unlessthe employee’s petition relates to a matter of public concern.” Justice Thomas concurred in judgment.

For the reasons set forth by JUSTICE SCALIA, I seriously doubt that lawsuits are “petitions” within the original meaning of the Petition Clause of the First Amendment. See post, at 2–3 (opinion concurring in judgment in part and dissenting in part). Unreasoned statements to the contrary in this Court’s prior decisions do not convince me otherwise. Like the Court, however, I need not decide that question today because “[t]he parties litigated the case onthe premise that Guarnieri’s grievances and lawsuit arepetitions protected by the Petition Clause.”

Justice Scalia concurred in judgment in part and dissent in part, doubting the historical pedigree of the holding, and citing Heller!

I find the proposition that a lawsuit is a constitutionally protected “Petition” quite doubtful. The First Amend-ment’s Petition Clause states that “Congress shall makeno law . . . abridging . . . the right of the people . . . to petition the Government for a redress of grievances.” The reference to “the right of the people” indicates that thePetition Clause was intended to codify a pre-existing individual right, which means that we must look tohistorical practice to determine its scope. See District of Columbia v. Heller, 554 U. S. 570, 579, 592 (2008).

Justice Kenendy has taken an interest in the Petition Clause of late. Interesting that he wrote this opinion.

In AEP v. Connecticut, Justice Ginsburg wrote for a unanimous Court that “The Clean Air Act and the EPA action the Act authorizes displace any federal common-law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.”

We address in this opinion the question whether the plaintiffs (several States, the city of New York, and threeprivate land trusts) can maintain federal common law public nuisance claims against carbon-dioxide emitters(four private power companies and the federal Tennessee Valley Authority). As relief, the plaintiffs ask for a decree setting carbon-dioxide emissions for each defendant at aninitial cap, to be further reduced annually. The Clean Air Act and the Environmental Protection Agency action the Act authorizes, we hold, displace the claims the plaintiffs seek to pursue.

Justice Alito concurred in part and in judgment with a single sentence casting doubt on Mass v. EPA: “I concur in the judgment, and I agree with the Court’sdisplacement analysis on the assumption (which I make for the sake of argument because no party contends oth-erwise) that the interpretation of the Clean Air Act, 42U. S. C. §7401 et seq., adopted by the majority in Massa-chusetts v. EPA, 549 U. S. 497 (2007), is correct.”. Justice Sotomayor recused.

In Turner v. Rogers, Justice Breyer writing for Justices Kennedy, Ginsburg, Sotomayor, and Kagan found that “Even though Turner has completed his 12-month sentence, and there are not alleged to be collateral consequences of the contempt determination that might keep the dispute alive, this case is notmoot, because it is “capable of repetition” while “evading review,”

We must decide whether the Fourteenth Amendment’s Due Process Clause requires the State to provide counsel (at a civil contempt hearing) to an indigent person potentially facedwith such incarceration. We conclude that where as here the custodial parent (entitled to receive the support) is unrepresented by counsel, the State need not provide counsel to the noncustodial parent (required to provide thesupport). But we attach an important caveat, namely,that the State must nonetheless have in place alternativeprocedures that assure a fundamentally fair determina-tion of the critical incarceration-related question, whetherthe supporting parent is able to comply with the supportorder.

Justice Thomas wrote for Justice Scalia, and for Chief Justice Roberts and Justice Alito as to Parts I-B and II (this dissenting duo did not write separately).

The Due Process Clause of the Fourteenth Amendment does not provide a right to appointed counsel for indi-gent defendants facing incarceration in civil contempt pro-ceedings.

Update: My instant analysis of Wal-Mart v. Dukes is available here.  Special praise, to Professor Nagareda, who passed away last year. His scholarship was cited prominently by both the majority and dissent in Wal-Mart.

In A.E.P. v. Connecticut, there is a lengthy discussion about the Court’s view of climate change. Additionally, Justice Ginsburg provides a clue as to how the Court split4-4 on the issue of Article III standing to challenge the greenhouse emissions.

In Turner v. Rogers, Chief Justice Roberts and Justice Alito did not join Justice Thomas’ portion of the opinion which discusses the original understanding of the right to counsel, and casts doubt on Gideon v. Wainright from an originalist perspective. Roberts and Alito are not originalists in the same way that Scalia and Thomas are. The day after Father’s Day, Justice Thomas has a lengthy discussion about “deadbeat dads” who do not pay child support. Interestingly, the Chief Justice and Justice Alito do not join this portion of the opinion either, which, among other points, asserts that the majority, including Justice Ginsburg, “does not account for the interests that children and mothers have in effective and flexible methods to secure payment.” Justice Ginsburg doesn’t account for the interest of mothers and children? Chutzaph much.

In Duryea v. Guarnieri, there is an interesting historical discussion of the history of the Petition clause, with dueling histories by Justices Kennedy and Scalia. Justice Scalia also has a discussion of “core rights,” a term of art he relied on in Heller to explain the heightened protection of the Second Amendment.

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FantasySCOTUS.net Predictions for the Final 14 Cases

The end of the October 2010 Supreme Court Term is almost here. Here are the FantasySCOTUS Prediction Tracker picks for the remaining 14 cases. I divided the cases into two categories: first, the cases where we are virtually certainty of the outcome (at a 99% confidence level); second, the cases where we are not certain of the outcome. If you are interested in learning more about FantasySCOTUS as a crowdsourced prediction market, please take a look at an essay I co-authored. I will compare these predictions to Tom Goldstein’s predictions at SCOTUSBlog in tomorrow’s Supreme Court Insider.

Confident

FantasySCOTUS Certainty
Brown v. EMA Affirm Yes at 99% (83%+/-4.52)
Wal-Mart v. Dukes Reverse Yes at 99% (75%+/-12.3)
Az Free Enterprise/McComish v. Bennett Reverse Yes at 99% (72%+/-14)
CSX v. McBride Affirm Yes at 99% (85%+/-17.3)
Sorrell v. IMS Affirm Yes at 99% (77%+/-18.3)
Am. Elec. Power Co. v. Conn. Reverse Yes at 99% (70%+/-18.4)
Goodyear v. Brown Reverse Yes at 99% (66%+/-12.1)

Not Confident

FantasySCOTUS Certainty
Stern v. Marshall Affirm No (52% +/-12.1 for 90%)
Freeman v. US Reverse No (52%+/-11.6 for 90%)
Duryea v. Guarnieri Affirm No (53%+/-14 for 90%)
Turner v. Rogers Reverse No (56%+/-14 for 90%)
Bullcoming v. New Mexico Reverse No (57%+/-9.53 for 90%)
McIntyre v. Nicastro Affirm No (55%+/-8.35 for 90%)