SBM Blog

Super-Sized Opinions

The Centers for Disease Control's revelation that burgers today are three times bigger and meals four times bigger than they were in the 1950s comes as something of a relief.  Our meals are four times bigger, but we're not!  It looks like we're only about 20% bigger.*  Clearly someone is watching out for us. As a lawyer I was naturally led to wonder whether judicial opinions have also become supersized. And sure enough, someone's done a study on it, revealing that the answer is a big fat yes. From "An Empirical Analysis of the Length of U.S. Supreme Court Decisions:"

Of particular note in the last one hundred or so years are two substantial and sudden changes in the median length. First, we observe a sharp decrease occurring over a three-year period starting in 1949, when the median length dropped from 3,064 words in 1948 to 2,129 words in 1951 -- a 30% decline. Indeed, the average size of majority opinions did not return to the 1948 level until nearly three decades later, in 1972. The second dramatic change, this one a substantial increase, occurred shortly after the start of the Burger Court. In 1969, the median length was 2,530 words. By 1974, just five years later, it had jumped by more than 80% to 4,656 words. Indeed, the change in opinion length over these few years is one of the starkest transitions in the entire data series and likely is what sparked interest and commentary on the increasing length of the Court's opinions.

*I am actually about 105% bigger than my peak weight in the 1950s, but that's a different story.

John Paul Stevens Speaks About Bush v. Gore, Takes on Gerrymandering

As Andrew Rosenthal points out in this New York Times blog, retired Justice John Paul Stevens has been anything but reticent about expressing his views since his retirement. In an address to the American Law Institute, Stevens added to his 35-page dissent in Bush v. Gore with observations like this one:

While the court's per curiam opinion is misleading in other respects, for example, its implicit suggestion that the failure to order a recount of the estimated 110,000 overvotes was error despite the lack of evidence or argument suggesting how one could tell which candidate the voter intended to support, the principal point I want to make this morning concerns the absence of any coherent rationale supporting the opinion's reliance on the equal protection clause.

The equal protection clause requires states to govern impartially and has particular force in protecting the right to vote. There must be a neutral justification for rules or practices that discriminate for or against individuals on the basis of identifiable characteristics, including groups of individuals that are defined by race, by political affiliation, or by their residence in a particular location. ...

My principal purpose in calling your attention to the court's reliance on the equal protection clause in Bush against Gore is to emphasize how that provision of our Constitution, properly construed, would invalidate an invidious form of political behavior that remains popular today. If a mere defect in the standards governing voting recount practices can violate the state's duty to govern impartially, surely it must follow that the intentional practice of drawing bizarre boundaries of electoral districts in order to enhance the political power of the dominant party is unconstitutional.

Stevens' connection of Bush v. Gore to gerrymandering caused Rick Hasen at Election Law Blog to wonder why Stevens did not make the same connection in his dissents in redistricting cases post-Bush v. Gore.  So far, no other substantive comment on any law blogs. Here's the transcript of the speech PDF.

How Do You Say "Deadpan" in Italian?

The Supreme Court case deciding whether an award for interpretation costs under the federal Court Interpreters Act can cover document translation as well as oral interpretation ended with a 6-3 decision in favor of the narrower interpretation. The majority opinion in Taniguchi v. Kan Pacific Saipan, Ltd., written by Justice Alito, relied on the definition of interpreter in a majority of dictionaries. After reading a summary of the opinion from the bench Alito quipped, "Our opinion is written in English. Anyone who wants to read it in another language will have to pay for the translation."

"Corporations Are People, Too"

Richard Epstein blasts Jeffrey Toobin's much-discussed New Yorker piece on Citizens United and the Roberts Court in an essay today in the Hoover Institution Journal.

His cartoonish understanding of Supreme Court history dooms him to a systematic misunderstanding of Citizens United’s critique of McCain-Feingold. The narrow issue in Citizens United was whether Hillary: The Movie, a 90-minute attack documentary, counted as “electioneering communication” that could be banned from running within 30 days of the election. The larger constitutional issues would not disappear if Citizens United only handed down a narrow decision that the McCain-Feingold Act did not apply to that movie. The next case down the road would be sure to raise the same overarching issues. It is therefore incumbent on Toobin to explain why the general guarantee that Congress shall “make no law abridging the freedom of speech” does not apply to political speech in the run up to a national election.

Clearly, it makes no sense to exclude corporations systematically from the First Amendment simply because corporations, whether or not they are persons, are not mentioned in the constitutional text. After all, the First Amendment doesn’t refer to citizens either. But the logic for bringing corporations under its protection parallels those used in connection with the Fourteenth Amendment. Does Toobin really think that the New Yorker, as part of the press, could be somehow prevented from publishing because it is a corporation bereft of any First Amendment protection? No: The magazine did not lose the protections of the First Amendment when its partners decide to incorporate it.

Kennedy's Citizen United Decision A Roberts Masterpiece?

If Jeffrey Toobin's piece in the New Yorker, "How John Roberts Orchestrated Citizens United," is right, Chief Justice Roberts is a strategic genius:

Roberts didn’t mind spirited disagreement on the merits of any case, but Souter’s attack—an extraordinary, bridge-burning farewell to the Court—could damage the Court’s credibility. So the Chief came up with a strategically ingenious maneuver. He would agree to withdraw Kennedy’s draft majority opinion and put Citizens United down for reargument, in the fall. For the second argument, the Court would write new Questions Presented, which frame a case before argument, and there would be no doubt about the stakes of the case. The proposal put the liberals in a box. They could no longer complain about being sandbagged, because the new Questions Presented would be unmistakably clear. But, as Roberts knew, the conservatives would go into the second argument already having five votes for the result they wanted. With no other choice (and no real hope of ever winning the case), the liberals agreed to the reargument.

The Scene: Elena Kagan, Kim Kardashian, and Other Fair Ladies and Wenches

Speak low if you speak love, unless you're arguing the divorce case of Claudio v. Hero at the Shakespeare Theatre Company's 18th annual mock trial, before a court consisting of Judge Douglas Ginsburg, Judge Merrick Garland, Justice Samuel Alito, Justice Ruth Bader Ginsburg, Justice Elena Kagan and Judge Brett Kavanaugh. In that case, let it rip. The BLT describes the raucous scene. And the Washington Examiner was titillated by the intimation that Justice Kagan knows who Kim Kardashian is.

Citizens United Redux?

A story in the ABA Journal, "Citizens Dis-United: Justices May Take Another Look at Campaign Finance Case," explores the possible implications of a stay granted in a challenge to a Montana statute that bans corporate spending in state elections. Justice Ginsburg, joined by Justice Stephen G. Breyer, wrote:

Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n, 558 U. S. ___ (2010), make it exceedingly difficult to maintain that independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.”  Id., at ___ (slip op., at 42).  A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.  Because lower courts are bound to follow this Court’s decisions until they are withdrawn or modified, however, Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989), I vote to grant the stay.

In an intriguing piece on how the Court's pending decisions may play in the Presidential campaign, ScotusBlog's Tom Goldstein speculates that while a grant of cert is a distinct possibility, a reversal of Citizens United is not likely, at least for the foreseeable future:

In truth, the odds that Montana can prevail in this case on that or any other strategy are very, very low.  I don’t doubt that three members of the Court (the current Justices who dissented in Citizens United) will vote for the state, probably joined by Justice Kagan.  But finding a fifth vote among the members of the majority that decided Citizens United and previous campaign finance decisions strikes me as extremely unlikely.  The majority views this line of cases as reflecting a basic, foundational point about democracy:  that there is a right to participate in electoral campaigns to persuade voters.  The handwriting is on the wall that Montana’s law is going to be declared unconstitutional.

But that does not make the state’s effort wasted and the case an empty exercise.  This is one battle in a far wider war for both sides.  Because a constitutional amendment is unlikely to be adopted, the relationship between campaign finance law and the First Amendment is destined to be unsettled (in the sense that a shifting Supreme Court majority could reverse course) for at least the next century.  The dissenters likely view the case, at the least, as an opportunity to lay the foundation for what they hope will be the eventual overruling of the current body of campaign finance law at some point years down the road.

Michigan's Indian Casino Case Before U.S. Supreme Court: Analysis Of Oral Argument

ScotusBlog's Kevin Russell says he thinks the Court is searching for a middle ground in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, in which a landowner in Wayland, Michigan has challenged the government's taking of land in trust for a casino now operating in Wayland. The outcome, Russell says, may hinge on how the Court resolves this question posed by Justice Kennedy:

The government takes the position [that] . . . it can basically moot [a landowner’s] action by turning this into a quiet title action just by taking title. . . . And the Respondent on the other hand says, oh, well, this is an APA action, we can — we can wait forever, at least for 6 years.  Is there some midway position that the government can’t moot the case too soon, that it must wait a reasonable time?

Russell thinks that an all-or-nothing resolution may not be in the cards.  Instead, he says:

I would not be surprised to see a majority coalesce around the compromise position advocated most strongly by Justice Breyer – and seemingly not raised in any significant way in the briefs – that (1) an APA suit commenced before the land is taken into trust is not a quiet title action within the meaning of the Quiet Title Act (and therefore, is not barred by that Act’s reservation of sovereign immunity for trust lands); and (2) the suit retains that character, and can go forward, even after the land is taken into trust.

The alternative approach, advocated by the Tribe and the government, would be to say that the solution to the problem of premature mooting of the APA claim is to require the plaintiff to seek a preliminary injunction barring the transfer while the case is in litigation (which the landowner here did) and appeal the denial of any such injunction (which the landowner here did not).

We All Come From Somewhere

In recognition of the Supreme Court oral argument in Arizona v. U.S., Reuters has this nifty guide to the family heritage of each Justice.  (Lest our headline be criticized for being politically incorrect, may we point out that the indigenous peoples of the Americas are thought to have migrated from Asia across what is now the Bering Straits.)

New Research Reopens Debate On William Rehnquist's Brown v. Board of Education Views

In "New Look at an Old Memo Casts More Doubt on Rehnquist," Adam Liptak reports on new information concerning an infamous memo written by William Rehnquist when he was a law clerk to Justice Robert Jackson.  The memo said, “I realize it is an unpopular and unhumanitarian position, for which I have been excoriated by ‘liberal’ colleagues, but I think Plessy v. Ferguson was right and should be reaffirmed.”  After Newsweek revealed the memo just before Rehnquist's confirmation hearing in 1971, Rehnquist explained that the memo did not represent his own views but was instead a statement of Justice Jackson’s tentative views for Jackson's own use. Liptak's story calls attention to new research published in an article in The Boston College Law Review that casts doubt on that explanation. A must-read for legal history buffs.