In 1968, the Court ruled 8-1 in Flast v. Cohen (here) that Florence Flast and others could file suit against the Secretary of Health, Education, and Welfare for violating the First Amendment for the funding of religious schools. The Court acknowledged that “a taxpayer will have standing consistent with Article III to invoke federal judicial power when he alleges that congressional action under the taxing and spending clause is in derogation of those constitutional provisions which operate to restrict the exercise of the taxing and spending power.”

Since then, however, the reading in Flast has never been taken any farther and the Court has chipped away at the ruling with increasing frequency. In cases like DaimlerChrysler Corp. v. Cuno and Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., the Court held the Flast exception to almost the exact fact-scenarios that arose in the original case.

In Hein v. Freedom From Religion, the Roberts Court had its first full-swing at the Flast exception. Justice Alito, joined by the Chief Justice and Justice Kennedy, refused to extend Flast to executive expenditures but also refused to strike the precedent entirely.

Over the years, Flast has been defended by some and criticized by others. But the present case does not require us to reconsider that precedent. The Court of Appeals did not apply Flast; it extended Flast. It is a necessary concomitant of the doctrine of stare decisis that a precedent is not always expanded to the limit of its logic. That was the approach that then-Justice Rehnquist took in his opinion for the Court in Valley Forge, and it is the approach we take here. We do not extend Flast, but we also do not overrule it. We leave Flast as we found it.

The distinction drawn in Hein is hard to understand. Justice Alito attempted to draw a distinction between an expenditure of Congress and an appropriation granted to the executive branch via Congress. Justices Scalia criticized that weak distinction in his concurring opinion and the dissenting Justices harped on the same issue. Justice Scalia wrote in an opinion joined by Justice Thomas that “Flast‘s lack of a logical theoretical underpinning has rendered our taxpayer-standing doctrine such a jurisprudential disaster that our appellate judges do not know what to make of it.”

It wasn’t hard to predict that this court would react so violently to assertions of Taxpayer standing. Justice Scalia has been a critic of Flast for some time now and published a controversial journal article in 1983 titled “The Doctrine of Standing as an Essential Element of the Separation of Powers” in the Suffolk Law Review. In 1993, a young ex-Deputy Solicitor General named John Roberts published an article in the Duke Law Journal defending an opinion by Justice Scalia lashing out at Flast.

Today, in Earth Island Institute, the Court took a more sober look at the principles underlined in Flast. Justice Scalia authored a majority opinion that did not cite Flast or Frothingham once. Instead, the Court simply held that the Earth Island Institute could not prove a “concrete” and “imminent” harm and therefore did not have standing per Article III.

I’m curious to see what direction the Court will take moving forward. In Hein, only Justices Scalia and Thomas signed on to the idea that Flast should be completely overruled. At the same time, however, Chief Justice Roberts and both Justices Kennedy and Alito have been highly critical of Flast and have done everything short of striking it down. As it stands, a plurality of the Court seems perfectly content chipping away at Flast until there is nothing of substance left. The problem thus far seems to be that the Court hasn’t had an opportunity to see the precedent directly. That would require a very specific set of facts that are hard to recreate in the real world. An individual would have to file suit against a program directly authorized by Congress that allegedly violates the Establishment Clause. I’m not currently aware of any cases that look like that, but I wouldn’t be surprised to see one come up through the courts in the next few years.

Related posts

• Supreme Court Hands Down Key Opinions (June 25, 2008)
• Footnotes in Supreme Court Opinions (December 19, 2008)
• Court Hears Arguments in Sleeper Exclusionary Rule Case (October 9, 2008)

Opinions released: 26
Cases dismissed: 21
Oldest Case: Vanden v. Discover Bank, argued October 6, 2008 (141 day ago)
Average number of days between arguments and decision: 78.31

Cases dismissed at this point in OT 07: 16
Cases dismissed at this point in OT 06: 17

5-4: 3
6-3: 3
7-2: 1
8-1: 0
9-0: 12
Per Curiam: 1
Other:1 (US v. Hayes, 7-1)

Individual Justice Tables

Souter has developed a reputation for being a “slow” writer and the statistics from this term largely support that idea. Five out of seven decisions on which he’s written an opinion have taken over 100 days to come down (113, 113, 110, 109, 105, 98, 83). The average number of days between arguments and opinion is currently 78, but that number is likely to rise when more opinions come down but fall a bit by the time the Court adjourns in June because of the April argument dates. In past years, the average has been between 90 and 95 days.

The best way to judge a Justice’s speed in writing might be to look at their unanimous opinions when there are no other opinions. To increase the sample size, I used OT06, OT07, and OT08:

Average: 61.15

The distribution of 9-0 unanimous opinions is surprising. Stevens, Scalia, and Kennedy were assigned very few of the “easiest” cases from each term. Justices Thomas and Ginsburg, arguably the most reliable conservative and liberal voters, respectively, were assigned authorship of the greatest number of 9-0 decisions.

This might be indicative of the trend to assign controversial decisions to swing voters or Justices who might be able to command a majority. If that held true, Justice Kennedy would generally be assigned few 9-0 decisions because he was getting more of the 5-4 and 6-3 decisions for each sitting. Justices Stevens and Scalia are often considered the ideological leaders of their respective wings of the Court and they might therefore be more useful in building consensus than in penning the most uncontroversial opinions. Justices Stevens, Scalia, and Kennedy are also the three longest-serving Justices on the Court.

Alternatively, a high number of unanimous 9-0 decisions without separate concurring opinions could hint to the amount of comprise a Justice will allow. There are quite a few opinions with 9-0 judgements and a slew of concurring opinions, but a truly unanimous 9-0 decision might suggest that the author was willing to compromise on minor issues with other Justices. If there were concurring opinions, the author of the majority may have been unwilling to compromise on the scope of the opinion or on technical issues secondary to the main holding of the Court. Justices Stevens and Scalia are the two longest-serving Justices on the Court today, and the fact that they have already written on many of the issues presented to the Court might leave them with less room to compromise on opinions they write today.

Related posts

• Supreme Introductions (December 20, 2008)
• Oral Argument Stats Posted (December 12, 2008)
• Nine Swinging Justices (April 16, 2007)

I defined a ‘Subject Matter’ introduction as one in which the author wrote only about the facts of the case and did not mention the court below. See Justice Alito’s introduction in Gomez-Perez v. Potter:

The question before us is whether a federal employee who is a victim of retaliation due to the filing of a complaint of age discrimination may assert a claim under the federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA), as added, 88 Stat. 74, and amended, 29 U. S. C. §633a(a) (2000 ed., Supp. V). We hold that such a claim is authorized.

I defined a ‘Procedural’ introduction as one that included even a brief mention of the ruling below. The main distinction between ‘Subject Matter’ and ‘Procedural’ introductions is that in the latter, the author had to phrase the decision of the Court as a play off of the Court below. For example, in Richlin v. Chertoff, Justice Alito wrote this ‘Procedural Decision’ as the introduction:

The question presented in this case is whether the Equal Access to Justice Act (EAJA), 5 U. S. C. §504(a)(l) (2006 ed.) and 28 U. S. C. §2412(d)(1)(A) (2000 ed.), allows a prevailing party in a case brought by or against the Government to recover fees for paralegal services at the market rate for such services or only at their cost to the party’s attorney. The United States Court of Appeals for the Federal Circuit limited recovery to the attorney’s cost. 472 F. 3d 1370 (2006). We reverse.

Finally, I defined a ‘Tease Facts’ introduction as one in which the author only mentioned (usually very briefly) the facts of the case and omitted any mention of the Court’s ultimate conclusion. Here is Justice Alito’s introduction in Davis v. Federal Election Committee which I categorized as a ‘Tease Facts’ decision:

In this appeal, we consider the constitutionality of federal election law provisions that, under certain circumstances, impose different campaign contribution limits on candidates competing for the same congressional seat.

As for length, I defined a ‘Short’ introduction simply as one limited to one paragraph. A ‘Long’ introduction was two paragraphs or longer in length.

An interesting argument could be made for each style. The data suggests that some Justices have a opinion on the matter and that their introductions isn’t simply a function of upon which clerk writes the opinion or the idiosyncrasies of the case in question. Four Justices (Breyer, Stevens, Souter, Thomas) used the same style in each of their opinions and two others (Ginsburg, Alito) made only one exception to their own self-imposed rule.

The ‘Subject Matter’ approach is the most straightforward and easily understood by lay-people reading opinions. A Justice that uses this approach with only a short introduction might be more inclined to decide a case on the fundamental issues at hand. A Justice who uses the ‘Procedural’ approach with a long introduction might be setting up his arguments aimed at technical issues separated from the politically divisive roots of a case. In the end though, there isn’t enough data here to reach any conclusions about why certain Justices prefer certain methods.

Justice Kennedy issued two opinions that defied the criteria I had set up for the three types of introductions that his peers used. In Federal Express v. Holowecki, Justice Kennedy presented some of the facts leading up the case then offered advice to any practitioners or judges who might use this opinion in the future, “[w]hile there may be areas of common definition, employees and their counsel must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.” The phrase itself is not uncommon, but the fact that it was placed in the introduction is unorthodox.

The other curveball thrown by Justice Kennedy was in Gonzalez v. US, where Justice Kennedy did not structure his opinion with an introduction and subsequent sections, and, without sections, I had to use my judgement to decide how far the introductory part of the opinion extends. Luckily for me, the opinion features a decidedly introduction-like presentation of the question at hand before it jumps into what is normally a Section I discussion of the complete history. I’m not sure why Justice Kennedy (or one of his clerks) decided not to use the normal structure. The 8-1 decision (Thomas dissenting) weighed in slightly-underweight at 12-pages and otherwise features the standard components of a majority decision. The average majority opinion from OT 2007 was 19.16 slip pages but an opinion of only 12-pages doesn’t stand out as an aberration. 14 cases from the last term were 12-pages or shorter and all of them except Gonzalez were broken up into sections.

Justices Breyer and Souter both used only ‘Subject Matter’ introductions in their opinions. Even though the cases were written by different clerks, his preference shown through either from their research into his past opinions or from his corrections of the ones they gave him. Justice Stevens, who writes his own opinions, used all three types of opinions in both long and short form.

Justice Scalia’s introductions were always instantly identifiable. In each case, he used the ‘Tease Facts’ approach and his introduction was only a sentences or two long. Take a look at his introduction to DC v. Heller, shown in its entirety:

We consider whether a District of Columbia prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution.

All of the Justices except Chief Justice Roberts and Justice Ginsburg preferred to use short introductions (those limited to one paragraph). The Chief Justice was split evenly 4-4 and Justice Ginsburg preferred lengthy introductions in six of her eight opinions. Four Justices refused to use long introductions at all (Breyer, Scalia, Souter, Thomas) and Justice Alito used them only once (Allison Engine Co. v. US.)

In a sign of things to come, Justice Roberts has already employed the ‘Procedural’ route this term in Winter v. NRDC when he declared “[t]he Court of Appeals was wrong, and its decision is reversed. ” In Altria Group v. Good, Justice Stevens used a ‘Procedural’ introduction as well. Hedgpeth v. Pulido, a case decided in a Per curiam decision, was written using the ‘Procedural’ style and was authored by the Chief Justice, Justice Scalia, Justice Thomas, Justice Kennedy, Justice Breyer or Justice Alito. Justices Stevens, Souter, and Ginsburg dissented from that opinion.

Related posts

• Footnotes in Supreme Court Opinions (December 19, 2008)
• Oral Argument Stats Posted (December 12, 2008)
• Methodology 101 (July 1, 2007)

Footnotes have, occasionally, caused quite a bit of controversy. In Microsoft v. AT&T (2007), Justice Ginsburg wrote a majority opinion for the court except for one footnote. The judgement line read as such:

Ginsburg, J., delivered the opinion of the Court, except as to footnote 14. Scalia, Kennedy, and Souter, JJ., joined that opinion in full. Alito, J., filed an opinion concurring as to all but footnote 14, in which Thomas and Breyer, JJ., joined. Stevens, J., filed a dissenting opinion. Roberts, C. J., took no part in the consideration or decision of the case.

The footnote in question:

¹⁴In a footnote, Microsoft suggests that even a disk shipped from the United States, and used to install Windows directly on a foreign computer, would not give rise to liability under §271(f) if the disk were removed after installation. See Brief for Petitioner 37, n. 11; cf. post, at 2–4 (ALITO, J., concurring). We need not and do not reach that issue here.

It seems odd that Justice Ginsburg would only discuss the topic in a footnote if it was divisive enough to cause Justices to change their vote. The most famous footnote from a Supreme Court opinion is ‘Footnote 4′ from the majority opinion in US v. Carolene Products (1938). In it, Justice Stone famously hinted towards the possibility of heightened levels of scrutiny “when legislation appears on its face to be within a specific prohibition of the Constitution.”

Analysis of the modern court’s use of footnotes is difficult because most Justices do not write their own opinions. Justice Stevens is the only Justice known to write his first drafts with any frequency and he has long stated that footnotes are useful because they provide the user with ‘optional reading.’ In his majority opinion in Altria, Justice Stevens employed 14 footnotes.

I took a look at the majority and plurality opinions from OT 07 to see how frequently each Justices uses footnotes. I looked only at majority and plurality opinions because they follow the most consistent structure and length. Concurring and dissenting opinions serve different purposes and are more difficult to compare amongst one another and with other types of opinions. I also calculated the number of footnotes per page and the page count refers to Slip Pages.

Case	Vote	Author	Footnotes	Pages	F/P
CSX	9-0	Roberts	4	12	0.33
Knight	9-0	Roberts	4	13	0.31
Medellin	6-3	Roberts	14	37	0.38
Clintwood	9-0	Roberts	0	12	0.00
Baze	7-2	Roberts	7	24	0.29
Engquist	6-3	Roberts	0	17	0.00
Munaf	9-0	Roberts	6	28	0.21
Plains	9-0	Roberts	3	24	0.13

Case	Vote	Author	Footnotes	Pages	F/P
Gall	7-2	Stevens	11	21	0.52
LaRue	9-0	Stevens	6	8	0.75
Danforth	7-2	Stevens	24	27	0.89
Crawford	6-3	Stevens	21	21	1.00
Ressam	8-1	Stevens	2	6	0.33
Irizarry	5-4	Stevens	2	8	0.25
Brown	7-2	Stevens	2	16	0.13

Case	Vote	Author	Footnotes	Pages	F/P
Torres	9-0	Scalia	0	12	0.00
Riegel	8-1	Scalia	6	17	0.35
Virginia	9-0	Scalia	4	13	0.31
Williams	7-2	Scalia	3	21	0.14
Santos	5-4	Scalia	8	17	0.47
Giles	6-3	Scalia	7	24	0.29
Mogan Stanley	5-2	Scalia	6	26	0.23
Heller	5-4	Scalia	29	64	0.45

Case	Vote	Author	Footnotes	Pages	F/P
Stoneridge	5-3	Kennedy	0	16	0.00
Federal Exp.	7-2	Kennedy	0	17	0.00
Gonzalez	8-1	Kennedy	0	12	0.00
Boumediene	5-4	Kennedy	0	70	0.00
Philippines	9-0	Kennedy	0	20	0.00
Dada	5-4	Kennedy	0	20	0.00
Kennedy	5-4	Kennedy	0	37	0.00

Case	Vote	Author	Footnotes	Pages	F/P
Watson	8-1	Souter	9	9	1.00
Boulware	9-0	Souter	14	17	0.82
Hall Street	6-3	Souter	7	15	0.47
Dept. of Rev.	7-2	Souter	21	28	0.75
Meacham	8-0	Souter	14	17	0.82
Rothgery	8-1	Souter	17	20	0.85
Exxon	8-0	Souter	28	42	0.67

Case	Vote	Author	Footnotes	Pages	F/P
Ali	5-4	Thomas	7	14	0.50
Sprint	9-0	Thomas	3	9	0.33
Wash. St. Gr.	7-2	Thomas	11	16	0.69
Cuellar	9-0	Thomas	8	17	0.47
Quanta	9-0	Thomas	7	19	0.37
Bridge	9-0	Thomas	7	21	0.33
Picca-Dilly	7-2	Thomas	3	19	0.16

Case	Vote	Author	Footnotes	Pages	F/P
Logan	9-0	Ginsburg	6	13	0.46
Kimbrough	7-2	Ginsburg	15	23	0.65
Preston	8-1	Ginsburg	8	16	0.50
New Jersey	6-2	Ginsburg	22	23	0.96
Burgess	9-0	Ginsburg	5	11	0.45
Riley	7-2	Ginsburg	13	20	0.65
Taylor	9-0	Ginsburg	13	25	0.52
Greenlaw	7-2	Ginsburg	9	17	0.53

Case	Vote	Author	Footnotes	Pages	F/P
John R.	7-2	Breyer	0	9	0.00
Rowe	9-0	Breyer	0	11	0.00
Begay	6-3	Breyer	0	11	0.00
CBOCS	7-2	Breyer	0	14	0.00
Met. Life	7-2	Breyer	0	13	0.00
Kent. Ret.	5-4	Breyer	0	14	0.00
Indiana	7-2	Breyer	0	13	0.00
Sprint	5-4	Breyer	0	23	0.00

Case	Vote	Author	Footnotes	Pages	F/P
Snyder	7-2	Alito	2	13	0.15
MeadWestvaco	9-0	Alito	4	15	0.27
Rodriquez	6-3	Alito	5	14	0.36
Gomez-Perez	6-3	Alito	6	16	0.38
Richlin	9-0	Alito	10	18	0.56
Allison	9-0	Alito	2	10	0.20
Davis	9-0	Alito	9	19	0.47

I’ve summarized all of that into a more succinct table:

Remember that all of the Justices, except for Stevens, have their law clerks write the first draft of each opinion. With that in mind, however, I was surprised to see that Justices Kennedy and Breyer didn’t use any footnotes at all. Overall though, it seems like footnotes are a stylistic thing more than a substantive disagreement. Justices who use them tend to use them frequently and Justices who aren’t fond of them don’t use them much at all. It also doesn’t really matter which clerk writes the opinion because nearly Every Justice who uses footnotes uses them in almost ever case.

I also crunched the numbers on the average number of footnotes in opinions based on the votes in the majority. I excluded opinions written by Justices Kennedy and Breyer. Note: These numbers do not represent opinions with irregular voting blocs (ie. 5-3, 5-2, 7-1, etc)

Odd. Statistically speaking, 8-1 opinions featured the highest number of footnotes. That is likely just a result of Justice Souter writing with disproportionate frequency in 8-1 opinions this year (2 out of 5.)

Cases with the most footnotes:

Heller 5-4 Scalia 29 64 0.45
Exxon 8-0 Souter 28 42 0.67
Danforth 7-2 Stevens 24 27 0.89
New Jersey 6-2 Ginsburg 22 23 0.96
Crawford 6-3 Stevens 21 21 1.00
Dept. of Rev. 7-2 Souter 21 28 0.75
Rothgery 8-1 Souter 17 20 0.85
Kimbrough 7-2 Ginsburg 15 23 0.65
Medellin 6-3 Roberts 14 37 0.38
Meacham 8-0 Souter 14 17 0.82

These represent an interesting cross section of the Court’s cases. Of course, none of the tight 5-4 decisions issued by Justice Kennedy are featured here, but Justice Scalia’s landmark opinion in Heller leads the list. Oral arguments in Danforth lead to an unusually heated debate between the justices, literally. Medellin produced an unusual decision from the Court in which the conservative majority struck against the President and ruled that ICC judgements were not binding on state courts. Two of the other major cases decided by the Court, Kennedy (Juvenille Death Penalty) and Boumediene (Detainee habeus claims), were written by Justice Kennedy and therefore had no footnotes.

Related posts

• Supreme Introductions (December 20, 2008)
• Court Hands Down First Opinion of the New Term (November 14, 2008)
• Unity Defined (June 11, 2007)

Justice Stevens penned the majority opinion and was joined by Justices Kennedy, Souter, Ginsburg, and Breyer. Justice Thomas filed a dissenting opinion that was joined by the Chief Justice and Justices Scalia and Alito.

In a 5-4 decision, the Supreme Court struck down the cigarette-makers’ claim that federal labeling laws preempted state-level action against the content of those labels. See more of our analysis on the cases here and here.

Related posts

• Footnotes in Supreme Court Opinions (December 19, 2008)
• Court Hands Down First Opinion of the New Term (November 14, 2008)
• Unity Defined (June 11, 2007)

Once again, Justice Scalia comes in as the most talkative and averages 21 comments per hour of arguments. That shouldn’t surprise many people as he has always been known to be a particularly vocal member of the court. Justice Thomas still hasn’t spoken since February 22, 2006. Chief Justice Roberts and Justice Breyer both average about 18 comments per case. On the other side of the spectrum, Justice Alito spoke an average of only 5 times per case. Justices Stevens, Kennedy, and Ginsburg spoke with similar frequency at 12, 11, and 10 times per argument, respectively.

This chart covers the difference between Justices’s overall speaking average and their average per individual court. I’ve highlighted the times when justices had variations of greater than 5 in either direction. I was particularly surprised to see that Ninth Circuit Cases had very little effect on justices, and, if anything, they actually spoke slightly less than usual.

When more cases start coming down, I’ll be interested to see what effect speaking frequency has on voting. Does Justice Kennedy speak more when he votes in favor of a case? Do Justices Stevens or Scalia speak more when they think a case will come down 5-4? With only 2 cases decided on merit thus far, its hard to say at this point but I’ll keep track of the decisions as they come down and post when I’ve collected enough data for some basic analysis.

You can find the data in these formats: xls, numbers, and, of course, pdf. Feel free to play with the data and let me know what conclusions you come up with!

Related posts

• Updated Humor Statistics (March 7, 2008)
• Supreme Introductions (December 20, 2008)
• Methodology 101 (July 1, 2007)

The common consensus says that President Obama will have little opportunity to affect the Court in the long run with any nominations in his first term. If he replaces any combination of Justices Stevens, Souter, and Ginsburg, he will be replacing a liberal Justice with another nominee who will likely be a solid liberal.

That line of thinking is not flawed, but it does overlook the subtle impact that Justices have on the Court. After cases are voted on, the senior-most Justice on each side of the decision is tasked with delegating the responsibility of writing their opinion. Justice Stevens, the senior associate Justice both among the liberals and, after the Chief Justice, amongst the Court at large, has used his delegating authority skillfully to build consensus for his positions. He frequently comments on the importance of delegating opinion-writing responsibly and he has often given the opinion to Justice Kennedy when he wasn’t solidified on the liberal position. Similarly, he claims to have taken several opinions for himself in order to write an opinion that could most easily attract four other Justices. If Justice Stevens retires, the senior-most Justice in a liberal 5-4 decision would be Justice Kennedy himself and it is difficult to predict how he would handle that responsibility. What is clear, however, is that with 14 years of experience as the Senior Associate Justice and 33 years on the Court, few Justices know how to handle the responsibility better than Justice Stevens.

President Obama will also have the chance to re-energize the ailing liberal bloc. While appointing young judges to the Court would do little in the short-run to counter the conservative revolution, depending on the number of Justices he can replace, he can give the next like-minded President the opportunity to seriously sway the court. The popularity of Justice Scalia within the academic and law community has undoubtedly had an impact on the way his distinct opinions and jurisprudence are received in the legal community. The liberal wing of the Court lacks a clear ideological leader who can condense their complex ideology into an idea that can be popularly marketed to a public that is skeptical of the phrase ‘judicial activism,’ despite being more fond of its policy outcomes. President Obama may get the chance to appoint a nominee who can do for liberal jurisprudence what Justice Scalia has done for textualism and he should not shrink from that responsibility.

Regardless, talk of long-term strategy may also be premature. In 2005, Justice O’Connor shocked the legal world when she, seemingly in full health, retired at 75 to care for her husband who had fallen ill. Justices Scalia and Kennedy are both 72 and have served on the nation’s highest court for more than two decades. Chief Justice Roberts has had a history of epilepsy and most recently suffered a seizure while on vacation in 2007. Justice Thomas has also had a particularly poor relationship with the Washington political scene after his confirmation hearings turned into a media circus following a sexual harassment allegation by former staffer Anita Hill.

Related posts

• Surprisingly Candid McCain and Obama Discuss Current SCOTUS Makeup, Nomination Process at the Saddleback Civil Forum (August 17, 2008)
• Unity Defined (June 11, 2007)
• Supreme Introductions (December 20, 2008)

You can find statistics from the term here.

Cases Completed:

Related posts

• Updated Humor Statistics (March 7, 2008)
• The End Of The World OR John Roberts Is The Silent Type (July 1, 2007)
• Supreme Introductions (December 20, 2008)

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

The argument goes: Hillary Clinton served in the Senate during a period in which the compensation for the Secretary of State was increased by way of executive order, therefore she is ineligible to assume that position.

I read the clause to disqualify her from the office until 2012 (the ‘Time for which [s]he was elected’.) The only necessary condition for the clause is that emoluments ‘have been increased’ during the time. Most people can agree on this point but there is a small contingency- likely in the single digits- that believes that the Senate may simply lower the wage to pre-election levels for the potential nominee.

The most common fix for the Emoluments Clause is the so-called ‘Saxbe Fix’ although it was used long before Richard Nixon appointed Senator Saxbe to Attorney General in 1973. President Taft had used it in 1909 and its Constitutionality has been debated by subsequent administrations. Rumor has it that because the Reagan administration decided that the Saxbe Fix was unconstitutional, they avoided appointing Sen. Orrin Hatch to fill the seat left by the retiring Justice Lewis Powell. The administration would later appoint Anthony Kennedy to fill the seat after the failed nominations of Robert Bork and Douglas Ginsburg.

DailyKos has interesting analysis from Madison’s notes at the Constitutional Convention. I tend to think the Saxbe Fix conforms quite reasonably to the intent of the Emoluments Clause but does not stand up to what the text of the clause actually reads. Unfortunately then, I would consider the appointment of Hillary Clinton to Secretary of State (before 2012) to be unconstitutional.

Related posts

• The In Vogue Word Of The Day: Stare Decisis (June 28, 2007)
• President Obama and the Future of the Supreme Court (December 4, 2008)
• Surprisingly Candid McCain and Obama Discuss Current SCOTUS Makeup, Nomination Process at the Saddleback Civil Forum (August 17, 2008)

Chief Justice Roberts authored a majority opinion and was joined by Justices Scalia, Kennedy, Thomas, and Alito. Justice Breyer authored an opinion concurring in part and dissenting in part which Justice Stevens joined in part. Justice Ginsburg filed a dissenting opinion and was joined by Justice Souter.

Related posts

• Footnotes in Supreme Court Opinions (December 19, 2008)
• Supreme Introductions (December 20, 2008)
• Unity Defined (June 11, 2007)

Justices on both sides of the normal ideological division seemed unpersuaded by the NRDC. Justice Breyer at one time asked,

I will express a little frustration. Not your fault. But why couldn’t you work this thing out? I mean, they are willing to give you quite a lot of conditions, and you say, well, we have got to have more conditions. And you are asking us who know nothing about whales and less about the military to start reading all these documents to try to figure out who’s right in the case where the other side says the other side is totally unreasonable. And the issue at law seems to be something that is going to last for two months. So — so, why? What is so — what is the important thing here?

The argument eventually came down to deciding whether or not the Navy was required to file an Environmental Impact Statement before it could proceed with the sonar training. An Environmental Assessment had been conducted which concluded that the training was most likely harmless to marine mammals in the area. The Navy failed to file a more comprehensive EIS and Justice Souter noted that the Navy was acting “in a state of some degree of ignorance greater than would e the case if it .. had done the EIS” Justice Scalia was adamant that the only harm caused here was procedural – that no EIS had been filed – and that was insufficient to confer standing to the NRDC to file against the Navy.

The NRDC argued quite simply that the original finding by the district court was justified by evidence in the case and unless it was ‘clearly erroneous,’ it should not be overturned by this court. Justice Alito found it odd to justify a single judge’s opinion of a military exercise overturning the determination of the Military.

In the end, it looks like Justice Breyer will almost certainly side with the Chief Justice and Justices Scalia and Alito. As usual, Justice Thomas didn’t say anything but if you assume that he will side with his fellow conservatives, then the case is closed. Justice Kennedy is harder to read although he expressed some skepticism at the NRDC’s claims and to be honest- the standing argument is pretty persuasive. The NRDC also pushed the idea that beaked whales were being beached en mass by the Navy’s use of sonar and the Navy refuted that claim, but the science of the matter may be lost on both sides. The conservatives will likely claim that the experts and evidence point in their direction, the liberals will claim that it weighs in their favor.

Related posts

• Oral Argument Stats Posted (December 12, 2008)
• Unity Defined (June 11, 2007)
• Supreme Introductions (December 20, 2008)

The Court has long held that a mistake by the police in arresting someone can be considered probable cause if the officer in question believes he is correctly applying the law. As Justice Scalia points out, if an officer mistakenly searches someone whom he believes to have just stolen, the contents of that search can be submitted in court. The question Chief Justice Roberts and Justice Scalia have, is what substantive difference is there between that scenario and this one? Pamela Herring, counsel for Bennie Herring, argues that the difference is that a warrant is not enough to spark probable cause for a crime. The argument goes that a warrant itself does not create probable cause and that a warrant is only a reaction to probable cause that lead to its creation.

Justice Scalia has long been known to be in favor of severely curtailing the exclusionary. During arguments he took issue with Mrs. Herring’s assertion that police departments would ‘willy-nilly not keep track of warrants’ if the exclusionary rule were not in place.

Michael Dreeben spoke next, in favor of the US. He argued primarily that imposing the exclusionary rule in an isolated instance like this one would not deter future police action and is therefore not a valid application of the exclusionary rule.Justice Stevens and Ginsburg were particularly concerned with the effects that the removal of the exclusionary rule would have on police behavior.

Its hard to tell exactly how this case will be decided, but the four horsemen as well as Justice Kennedy appeared to be firmly in favor of siding with the Government. Justice Scalia has long been in favor of peeling back the Exclusionary Rule in favor of a more flexible guideline in place in most countries around the world. The exclusionary rule in the United States is considerably more restrictive of police behavior than its counterparts elsewhere in the world. Justice Kennedy seemed sufficiently convinced that there were enough safeguards in place to prevent police from abusing power in most circumstances. He specifically mentioned §1983 in a number of instances and seemed to believe it may be powerful enough to prevent police negligence.

Related posts

• Oral Argument Stats Posted (December 12, 2008)
• Footnotes in Supreme Court Opinions (December 19, 2008)
• Court Hands Down First Opinion of the New Term (November 14, 2008)

Theodore Olsen opened arguments on the day on behalf of the tobacco companies and had a relatively comfortable exchange with the justices. Justices Ginsburg and Breyer first expressed concern that a ruling against the states might silence an overly broad swath of deceptive advertising claims against cigarette companies and Mr. Olsen conceded that its “probably true in most cases [that] … regulations at the State level having to do with cigarettes and advertising by and large [are] going to have to do with smoking and health.

Olsen also completely drops the implied preemption argument. The briefs filed earlier on the matter argue at length that a federal regulation like that of the FTC places an implied preemption over the states. He argued before the court that in most deceptive advertising cases, the FTC works in conjunction with state regulators and it is specifically because Congress mentioned cigarette advertising like it did that this realm is preempted.

David Frederick began arguments for the state of Maine with a lengthy exchange with the Chief Justice and Justice Alito, both of whom were hard pressed to find a distinction between this case and Riegal v. Medtronic, a case decided last year that applied preemption over the states for a seemingly similar statute.

The argument then shifts over to a discussion over the damages that the plaintiff is seeking. Justice Souter leads a line of questioning over exactly what damages the plaintiff is hoping to recover and Frederick explains they they are seeking the “difference in value between a product we thought we were buying and a product we actually bought.” He continues that certain economist have argued that people are more likely to quit smoking if they know the full effects of smoking and the deceptive labels ‘light’ and ‘low-tar’ merely prolonged their use of tobacco because they thought they were buying a safe product. The problem, as Justice Souter points out, is that in order for this story to play out, the cigarettes sold must be proven to be unsafe or at the least, there must be a discussion of the relationship between smoking and health. At that point, Justice Souter argues, the case is clearly preempted by federal law. Mr. Frederick adamantly argues that the link between smoking and health is irrelevant, the question here revolves around a general truth-in-advertising regulation.

Mr. Frederick brings up an interesting argument during a dialogue with Justices Kennedy and Ginsburg. Under Riegal and past preemption cases, an attorney general or any private party may bring suit against a cigarette company for lying about the tar or nicotine content of a light cigarette, but an attorney general may not regulate cigarette makers to place labels on their cigarettes saying that they are not less harmful. The reason being, a broad regulation like that would not leave open the possibility of cigarette companies to prove that their cigarette actually contains less tar.

During argument on behalf of the federal government, Justice Alito made his opinion on the whole matter very clear:

JUSTICE ALITO: The FTC’s position seems to me incomprehensible. If these figures are meaningless, then you should have prohibited them — are misleading, you should have prohibited them a long time ago. And you’ve created this whole problem by, I think, passively approving the placement of these figures on the — on — in the advertisements. And if they are misleading, then you have misled everybody who’s bought those cigarette for a long time.

The arguments in this case seem clearly lopsided. Justices across the board were confused at exactly how this case is any different from recently decided cases and long-held precedents concerning federal preemption over deception advertising statutes. The only question I have about his case now is whether it will be decided 7-2 (Ginsburg, Breyer on the bottom,) or 9-0.

Related posts

• Oral Argument Stats Posted (December 12, 2008)
• Footnotes in Supreme Court Opinions (December 19, 2008)
• Court Hands Down First Opinion of the New Term (November 14, 2008)

Justice Kennedy wrote an order discussion his alterations to the opinion (here) and Justice Scalia wrote a statement in response (here.) Justice Kennedy was joined by each of the four members who had joined his original majority opinion and Justice Scalia was joined by the Chief Justice.

It is important to note that in his statement accompanying the dismissal of the motion for rehearing Justice Scalia notes that he had voted against rehearing because “the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision in this case.” Only Justices Alito and Thomas had voted in favor of rehearing.

Related posts

• Supreme Court Hands Down Key Opinions (June 25, 2008)
• Footnotes in Supreme Court Opinions (December 19, 2008)
• Supreme Introductions (December 20, 2008)

Earlier this summer is was revealed that part of a broad appropriations bill contained language making the death penalty an appropriate punishment for the rape of a child in military proceedings. The error was first spotted by Dwight Sullivan in a post on his blog, CAAFlog. Eugene Fidell, a lawer and husband of Linda Greenhouse, the famed New York Times Supreme Court reporter, discovered the blog post and told his wife about it. She wrote an article about it that would later appear above-the-fold on the New York Times and the rest, as they say, is history.

Supporters of the death penalty argue that this action by Congress shows that there is, in fact, a clearly established concensus on the national level favoring the use of the death penalty for these crimes. The argue that the Court has always acknowledged that they play a role in interpretting the Constitution and that Congress interpretted the Constitution to allow the death penalty in this case should influence the Court’s decision.

Opponents of rehearing have argued that this revelation attacks only half of the court’s overall argument and is a weak attack at that. As Kennedy’s brief argues, if the Court had been notified of the legislation, “it might have warranted a footnote in this Court’s opinion.” The Supreme Court also has the option of rejecting the recent revelation on the principle that it is now too late in the appellate process to bring up a new argument.

The biggest obstacle facing Louisiana is the fact that they have to convince at least one member of the Kennedy majority to vote in favor of rehearing. A petition for rehearing must be approved by five justices meaning one of the justices who originally voted with the majority opinion would have to vote in favor of rehearing the case and would presumably be interested in changing their vote on the case.

The Court will sit for its first conference of OT08 on Monday, September 29th and they will likely release a long list of accepted cases on the 30th. Kennedy may be among those or it may later be dismissed unceremoniously in an order’s list later in the coming weeks.

Related posts

• Supreme Court Hands Down Key Opinions (June 25, 2008)
• No Decision Again on Death Penalty Rehearing (September 6, 2008)
• Kennedy v. Louisiana Closed (October 6, 2008)

The court issued is final orders list of the summer last week (here) and, once again, did not take action on the case. The next time the court is expected to hand down orders is on September 29 after its first conference of the new term.

Related posts

• Supreme Court Hands Down Key Opinions (June 25, 2008)
• Kennedy v. Louisiana Closed (October 6, 2008)
• Footnotes in Supreme Court Opinions (December 19, 2008)

Biden’s first major test as Chairperson came in June 1987, when President Reagan nominated Robert Bork, then sitting on the United States Court of Appeals for the District of Columbia, to replace the retiring Justice Lewis Powell. Within the hour, Senator Edward Kennedy had taken the floor of the Senate to share his infamous vision of “Robert Bork’s America.” Biden’s Judiciary Committee kept the pace, asking tough questions about privacy and the separation of powers. Bork’s candid testimony before the Committee earned him a reputation as an extremist, and the ACLU bolstered this idea by recommending for only the third time in its 67-year history that a Supreme Court nominee by rejected. The Judiciary Committee concurred, and recommended by a vote of 9-5 (Biden in the majority) that Bork be rejected. Shortly thereafter, Bork’s nomination failed by a floor vote of 42-58, with Biden voting nay.

Bork, who felt slighted by the media and by the Senate, resigned the Fifth Seat on the DC Circuit in 1988; Ronald Reagan soon nominated a veteran of his administration, Clarence Thomas, to fill this vacancy. In the summer of 1991, Biden would face his second test as Judiciary Chair when Thomas was nominated to the Supreme Court. The hearings [Biden-laden transcripts here] were notably divisive, colored by Anita Hill’s allegations of sexual misconduct. Like the American Bar Association, the Judiciary Committee was divided on Thomas’ qualifications; and, like the ABA, the Committee ultimately chose not to make a recommendation and silently sent the nomination to the full floor. Thomas was then confirmed by a vote of 52-48, with Biden again voting nay.

Beyond his Constitutional role in providing advice and consent , Biden used his position on the committee to push through quite a bit of legislation. Some of these bills have been legally dubious. (The Violence Against Women Act of 1994, for example, was ruled in part unconstitutional in United States v. Morrison 529 U.S. 598 (2000).) However, most of his legislation in this committee an elsewhere has been marked by an earnest desire to improve the lives of everyday Americans.

I would suggest that Joe Biden is one of the finer legal minds in this country, and certainly was the finest on Obama’s shortlist (although Tim Kaine did teach law at the University of Richmond for some six years). And so I guess my point is that, if elected, Biden would be an interesting asset to President Obama if he’s tasked with filling vacancies on the high court. Considering the likelihood that Obama could have as many as six nominations, maybe even liberals should be reading a little more closely into Biden’s record.

Related posts

• President Obama and the Future of the Supreme Court (December 4, 2008)
• Which Justice Will Author The Medellin Opinion? (March 19, 2008)
• Updated Humor Statistics (March 7, 2008)