The demise of Intrade.com (link no longer available) has deprived degenerates who will gamble on anything—and other degenerates who link to them—of the opportunity to wager on the outcome of Hollingsworth v. Perry, the case testing the constitutionality of California’s Proposition Eight, which banned same-sex marriage. But had it remained in operation, the odds likely would have run about even, with all eyes fixed on the great unknown: Justice Kennedy. Both facts—the even odds and the unknown on whom they rest—are problems. The even odds imply unpredictability in the law, and the unpredictability of Justice Kennedy’s jurisprudence, in turn, suggests a false complexity of constitutional jurisprudence that places it beyond the grasp of mortals and in the hands of a mysterious priesthood whose decisions require divination. However one wants the case resolved, it should not be decided like this.
The Supreme Court has just released its decision and opinion(s) in Kiobel v. Royal Dutch Petroleum. I haven’t read or analyzed this carefully, but here’s the gist of it:
Kiobel involves the hotly contested question of whether the Alien Tort Statute, 28 U.S.C. 1350, permits courts to recognize a cause of action for torts in violation of customary international law—and if so, what causes. On its face, the ancient statute (part of the 1789 Judiciary Act) is purely jurisdictional: it says that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” That tells you where to sue and who may sue, but it doesn’t say what torts “count.” In Sosa v. Alvarez Machain, 542 U.S. 692 (2004), the Supreme Court held that aliens can sue over torts that are like—in character, specificity, and international consensus—the “violations of the law of nations” recognized in 1789: violations of safe conduct, infringement of the rights of ambassadors, and piracy. What does that mean, though?
I’ve griped before (I think) about the Supreme Court’s less-than-stellar record on protecting the commerce of the United States. The Upside-Down Constitution contains an extended riff on the theme. As always, I am entirely right. A pair of Supreme Court case—a lamentable cert denial last week, and a blockbuster argument this week—confirms the analysis and illustrates the justices’ passive-aggressive posture.
Some time ago, I commented on the Supreme Court’s increasing doubts about the Solicitor General’s good faith and candor. More in this vein comes from a party brief in a pending certiorari petition. The Court CVSG’s the case (i.e., asked for the view of the SG whether cert should be granted). The SG opposed. From the brief:
The Solicitor General’s position is in keeping with a pattern of apparent reluctance to support review even when substantial factors warranting certiorari are present. The Solicitor General recommended denial in 21 of the 22 invitation briefs filed between August 26, 2011, and November 30, 2012. The Court has granted review in many of those cases; four have already been argued this Term, and another is awaiting argument. Ryan v. Gonzales (10-930); Decker v. Northwest Environmental Def. Ctr. (11-338, 11-347); Los Angeles Cnty. Flood Control Dist. v. NRDC (11-460); Vance v. Ball State Univ. (11-556); Bowman v. Monsanto Co. (11-796). Yet another argued case, Kirtsaeng v. John Wiley & Sons (11-697), presents an issue on which the Court granted certiorari in 2010 over the Solicitor General’s contrary recommendation, but the Court divided evenly in the 2010 case presenting that issue.
Zing. Having looked at CVSG filings over the years, and having read a very fine law review article (link no longer available) on the empirics, I assure you that these numbers are entirely unprecedented. Small wonder: it cannot possibly be the case that every case the justices deem worthy of at least a careful look is a dud. The “no cert ever” posture requires some very fancy footwork.
The case at hand, American Trucking Ass’n v. Los Angeles, 11-798, is a fine illustration. It arises over the preemptive force of the FAAAA (not a typo: you’re looking at the Federal Aviation Administration Authorization Act.) As the petitioners (represented by the excellent Roy Englert, Alan Untereiner, and Leif Overvold of Robbins Russell) note, the SG’s opposition acknowledges that the Ninth Circuit, in the course of creating a broad “market participant” exemption to federal preemption, got it wrong; produced a circuit split; and badly mangled a Supreme Court precedent. Also, the SG acknowledges, the case involves a recurring question under multiple preemption regimes. Still, no cert. Why should the U.S. government defend its own statutes? American Trucking Ass’n was relisted earlier this week; my hunch is that the Court will grant.
Wilson Huhn has posted an article discussing in detail the likely effects if President Obama were to have the chance to replace any of the five nonliberals on the Supreme Court. Huhn argues that a large number of cases would be likely to be overturned. He basically divides up the cases into those that he believes will be overruled and those who believes will probably or might be overruled. I generally agree with his assessments.
In the category of those he predicts will be overruled are:
Citizens United v. FEC (protecting under the First Amendment contributions from corporations and unions);
Zelman v. Simmons-Harris (allowing government to provide vouchers for children to attend parochial schools);
Van Orden v. Perry (allowing Texas to place the Ten Commandments on the state capitol under circumstances suggesting the non-religious message predominates);
NFIB v. Sebelius (five members of the Court concluding that the Commerce Clause does not allow Congress to mandate the purchase of health insurance)
Previously, I did a post reacting to John Robert’s “defection” from the conservatives on the Supreme Court that asked whether liberal justices ever did this sort of thing in important cases. Based on a couple of responses, I can list two examples in high profile cases. First, there are liberal defections in NFIB v. Sibelius itself. In Sibelius, liberal Justices Breyer and Kagan joined Chief Justice Roberts’s opinion holding that Obamacare could not require states either to accept an expanded Medicaid program or to risk losing all of their funds under the old Medicaid program. I am not entirely sure why…
Glenn Reynolds links to Marc Thiessen's Op Ed that points out the consistency of liberal justices as compared to the inconsistency of conservative ones: Just compare the records over the last three decades. Democrats have appointed four justices — Ruth Bader Ginsberg, Stephen G. Breyer, Elena Kagan and Sonia Sotomayor. All have been consistent liberals on the bench. Republicans, by contrast, have picked seven justices. Of Ronald Reagan’s three appointees (Sandra Day O’Connor, Antonin Scalia and Anthony M. Kennedy) only Scalia has been a consistent conservative. George H.W. Bush appointed one solid conservative (Clarence Thomas) and one disastrous liberal (David Souter).…