The Volokh Conspiracy

Last term, the Supreme Court decided two affirmative action cases brought by Students for Fair Admission. Justice Jackson was recused from the Harvard case, since she served on the Harvard Board of Overseers. But Jackson participated in the University of North Carolina case. Ultimately, the Court only issued a single decision. Everyone can reasonably assume that Justice Jackson reviewed portions of the draft that concerned the Harvard case, even if she signaled that she didn't actually participate in that case.

Richard Re criticized Jackson. I defended Jackson. I contended that the "duty to sit" on the Supreme Court is significant, and should not be discarded lightly--even where some people may see a potential conflict of interest. Moreover, I surmised that Jackson consulted with her colleagues on how to proceed. Indeed, every Justice signed off on how Jackson characterized her role in the case, and presumably agreed with her decision.

Another term, another "recusal." (Will Baude flagged it here.) The Supreme Court originally granted cert in Loper Bright. Justice Jackson heard oral argument in that case during her ever-so-brief tenure on the D.C. Circuit, but did not issue an opinion in that case. (Justice Thomas jokes that he was on that court for a short period, but at least he made it past the one-year mark.) Despite her limited involvement in the case, Jackson recused from Loper Bright. Later, the Court granted cert in Relentless, a similar case from the First Circuit. The thinking was that this would give Justice Jackson a chance to participate. But unlike the two SFFA cases, where the UNC case had the Fourteenth Amendment issue, the questions presented in Loper Bright and Relentless were identical. This cert grant was designed solely to let KBJ ask questions during oral argument. That's it. The Court heard separate oral argument in each case. And participate Jackson did--according to Empirical SCOTUS she spoke for more than 13 minutes, whereas Justice Sotomayor spoke for about 6 minutes. Here is the breakdown for the whole term:

Fast-forward to the decision. Justice Kagan's dissent includes this footnote:

JUSTICE JACKSON did not participate in the consideration or decision of the case in No. 22–451 and joins this opinion only as it applies to the case in No. 22–1219.

What does that even mean? Both cases were jointly considered. It is a fiction that they could be separated. But I'll defend Jackson again. This is a case of the utmost importance, and the mere fact that she participated in the lower-court opinion really does not require her recusal. I've never fully understood this rule about recusal based on past participation. The Justice does not have to recuse if they had previously ruled on a legal issue in a different case; only in the same case. In 2018 Justice Kennedy was forced to recuse in a case because he participated in an earlier proceeding from 1985 on the Ninth Circuit. In what world does that rule even make sense? Kennedy had forgotten about the case, yet he somehow has some sort of latent bias?

Back in the good old days, Justices who heard a case while riding circuit could would hear the case again when it was appealed to the Supreme Court. My understanding is that Justice Bradley participated in Cruikshank before the District of Louisiana, and there is no indication he recused on that case when it was certified to the Supreme Court.  I hope I don't trigger anyone with a discussion of Section 3, but had Jefferson Davis not been pardoned, Chief Justice Chase would have heard his criminal appeal before the Supreme Court, after presiding over the criminal trial. (I'm sure some moderns will find yet another ethical violation based on ethical rules that did not exist at the time.)

Justice Jackson did nothing wrong. What difference does it make that she heard oral argument? We are often told that questions at oral argument should not be taken as an indication of which way a judge is going to vote. Moreover, hearing Loper Bright as a circuit judge focused on the best reading of the Magnuson-Stevens Fishery Act. But before the Supreme Court, the only issue was whether Chevron should be overruled--a question that a circuit judge could not even think about. Where is the conflict? I think that these sorts of recusals are largely performative, and not about addressing actual conflicts. As I said last year, there should be fewer Supreme Court recusals, and not more.

Several months ago, a reporter from a national outlet called to talk about Chevron deference in immigration. Apparently, immigration lawyers were (quietly) thrilled that Chevron deference was on the chopping block. That decision requires the Board of Immigration Appeals to defer to the executive branch when interpreting an "ambiguous" provision of the immigration laws. Most immigration lawyers are left of center, and they did not dare file an amicus brief on this issue in Loper Bright, but I've heard they were eagerly looking forward to the Court's decision. And such has come to pass.

Indeed, Justice Gorsuch cites immigration law as a justification to overrule Chevron.

In another case, one which I heard as a court of appeals judge, De Niz Robles v. Lynch, 803 F. 3d 1165 (CA10 2015), the Board of Immigration Appeals invoked Chevron to overrule a judicial precedent on which many immigrants had relied, see In re Briones, 24 I. & N. Dec. 355, 370 (BIA 2007) (purporting to overrule Padilla–Caldera v. Gonzales, 426 F. 3d 1294 (CA10 2005)). The agency then sought to apply its new interpretation retroactively to punish those immigrants—including Alfonzo De Niz Robles, who had relied on that judicial precedent as authority to remain in this country with his U. S. wife and four children. See 803 F. 3d, at 1168–1169. Our court ruled that this retrospective application of the BIA's new interpretation of the law violated Mr. De Niz Robles's due process rights. Id., at 1172. But as a lower court, we could treat only the symptom, not the disease. So Chevron permitted the agency going forward to overrule a judicial decision about the best reading of the law with its own different "reasonable" one and in that way deny relief to countless future immigrants.

Justice Kagan also alluded to immigration in her dissent. She suggests that--contra Justice Gorsuch--the Court would still allow deference doctrines in immigration cases that involve "mixed questions" of fact and law:

It first appears to distinguish between "pure legal question[s]" and the so-called mixed questions in Gray and Hearst, involving the application of a legal standard to a set of facts. Ante, at 11. If in drawing that distinction, the majority intends to confine its holding to the pure type of legal issue—thus enabling courts to defer when law and facts are entwined—I'd be glad. But I suspect the majority has no such intent, because that approach would preserve Chevron in a substantial part of its current domain. Cf. Wilkinson v. Garland, 601 U. S. 209, 230 (2024) (ALITO, J., dissenting) (noting, in the immigration context, that the universe of mixed questions swamps that of pure legal ones).

For further reading, see this article on immigration law after Relentless in the NYU Law Review Online.

Update: Reason, which graciously hosts the Volokh Conspiracy, has a piece today titled Why the End of Chevron Could Be a Win for Immigrants. Here is a snippet:

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Back to Loper Bright. Both Justices Thomas and Gorsuch wrote concurrences. Justice Thomas explained why Chevron violated the separation of powers. Justice Gorsuch argued that stare decisis, as he conceives it, demands that Chevron must be overruled. Both of these concurrences were solo. Why did Thomas not join Gorsuch? Why did Gorsuch not join Thomas?

Justice Thomas include this somewhat cryptic star footnote:

*There is much to be commended in JUSTICE GORSUCH's careful consideration from first principles of the weight we should afford to our precedent. I agree with the lion's share of his concurrence. See generally Gamble v. United States, 587 U. S. 678, 710 (2019) (THOMAS, J., concurring).

Gamble declined to overrule the dual sovereignty doctrine. Here is the relevant passage from Justice Thomas's Gamble concurrence:

Insofar as the expansion of the reach of federal criminal law has been questioned on constitutional rather than policy grounds, the argument has focused on whether Congress has overstepped its legislative powers under the Constitution. See, e.g., Gonzales v. Raich, 545 U.S. 1, 57–74, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005) (THOMAS, J., dissenting). Eliminating the dual-sovereignty rule would do little to trim the reach of federal criminal law, and it would not even prevent many successive state and federal prosecutions for the same criminal conduct unless we also overruled the long-settled rule that an "offence" for double jeopardy purposes is defined by statutory elements, not by what might be described in a looser sense as a unit of criminal conduct. See Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Perhaps believing that two revolutionary assaults in the same case would be too much, Gamble has not asked us to overrule Blockburger along with the dual-sovereignty rule.

Gamble v. United States, 587 U.S. 678, 710, 139 S. Ct. 1960, 1980, 204 L. Ed. 2d 322 (2019)

What exactly is the delta between Justices Thomas and Gorsuch here? I do not know. I wish Thomas would have explained himself a bit more fulsomely.

This is probably an academic question, since Chevron is dead and gone--unless, Congress purports to re-enact something like Chevron by statute. In that case, the courts would then have to decide if deference itself runs afoul of the separation of powers, along the lines that Justice Thomas suggests.

A few other points from Justice Gorsuch's Loper Bright concurrence:

First, Justice Gorsuch accurately describes how Abraham Lincoln responded to Dred Scott:

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Today, the Supreme Court issued the "clean-up" order list. The Court GVR'd eight cases in light of Rahimi. One of them was Garland v. Range. Here, the en banc Third Circuit held that a person who committed a non-violent felony (food stamp fraud) could not be subject to a complete ban on owning a firearm. Justice Barrett brought the case up during the Rahimi oral argument. I suspected that the Court was holding Range pending Rahimi. After Rahimi was decided, the SG urged the Court to grant Range. Counsel for Range urged the Court to grant the writ. I thought the Court might sit on the issue for the summer, and figure out what to do at the long conference. No such luck. The Court, without any noted dissent, GVR'd Range.

Now, Range, other cases, and the Second Amendment, return to inferior court purgatory. And I should note that since Range was decided, the composition of the Third Circuit has changed. President Biden will have "flipped" two seats, changing the balance of the en banc court. We'll see if there are four votes for cert when this case comes back.

Bruen had a good two-year run! Alas, Rahimi placed a blue light special on the Second Amendment.

Update: I wrote that the SG recommended a GVR in Range. In fact, the government recommended a grant. I've updated the post.

Last term, SCOTUSBlog ceased to publish its reliable StatPack. I am pleased that Adam Feldman and Jake Truscott have published a Stat Review of OT 2023. You should read through the rich 68-page report in detail. Here, I'd like to tease out one datapoint.

Which Circuit had the highest reversal rate? Surely it must be the Fifth Circuit, right? No. It was the Second Circuit. The Second Circuit's reversal rate was 85.71%. And for those keeping track at home, all but one were unanimous, 9-0 reversals: Murray v. UBS, Macquarie, Bissonette, Cantero, and NRA v. Vullo.

For the Fifth Circuit, if we include consolidated cases (such as AHM, and NetChoice), the  reversal rate was 72.73%. The most prominent unanimous reversal was in AHM. Another unanimous reversal came in Devillier, though that holding was on completely different grounds than the Fifth Circuit ruled, and in some regards, was actually a victory for Texas. (No, I won't get into that mess again.) NetChoice was sort-of-unanimous, but it was a very strange reversal. For what it's worth, the Eleventh Circuit was also reversed (It seems the SEC East has a much higher affirmance rate than the SEC West.) The other reversals of the Fifth Circuit split 8-1 (Rahimi and Trevino), 7-2 (CFPB), and 6-3 (Murthy).

By my rough count, it seems the Second Circuit may have had a worse term this year than the Fifth Circuit. But that doesn't fit the narrative.

Another interesting data point. There were 421 cert petitions from the Fifth Circuit. (At least 420 of those were from the Solicitor General's Office--I'm kidding, I'm kidding). The Ninth Circuit, which is far larger, had only 382 cert petitions. And the Second Circuit, which had a higher reversal rate, yielded only 129 cert petitions.

I realize it is en vogue to dump on the Fifth Circuit, and fault lawyers in that circuit for shoddy advocacy. I was quoted today in one such piece about the reversal rate by the Texas Tribune, titled "Again and again, U.S. Supreme Court slaps down 5th Circuit." But I think that criticism misses the mark. I told the Trib:

Josh Blackman, a professor at South Texas College of Law, said these rulings reflect the simple fact that the 5th Circuit is to the right of the Supreme Court.

"Every judge takes an oath to the Constitution, and I think the judges in the 5th Circuit, and really all the courts, have very strong views on what the Constitution means," Blackman said. "The Supreme Court disagrees on that. That's their call."

…

This repeated repudiation from the Supreme Court is unlikely to impact how the 5th Circuit rules going forward.

"The judges of the 5th Circuit don't work for the Supreme Court anymore than I work for you," Blackman said. "It's a myth that the 5th Circuit will say, 'Oh man, I got reversed. Maybe I should rule differently next time.'"

The job of an appellate judge is not to try to guess what opinions would be upheld by the Supreme Court, Blackman said.

The bigger problem is when the Court shifts doctrine on the fly. It makes it much harder for lower-court judges to do their jobs. I think this is especially true in Rahimi (Second Amendment and facial challenges) and Murthy (standing), two of the higher-profile reversals.

Update: An IP Professor reminded me that in fact the Circuit Court with the highest reversal rate was the Federal Circuit--it went 0-2.

A longish and interesting opinion by Justice Sotomayor, regarding the Court's decision not to review the matter for now (McCrory v. Alabama). According to Justice Sotomayor:

Petitioner Charles M. McCrory was convicted of murder in 1985 based on forensic bitemark testimony that has now been roundly condemned by the scientific community and retracted by the expert who introduced it at his trial.

For more, read the whole opinion.

Herbert Butterfield, the historian often remembered for coining or at least popularizing the phrase "Whig history," published in 1950:

It is not open to any of us to say that we will postpone what philosophers call 'the good life'—postpone any of the higher purposes of mankind—until the world is more happily placed or the environment becomes more congenial. Some people have become accustomed to arguing, for example, that we must not pretend to have any art to-day—for how can a man write poetry when society is still so disjointed? I have even heard it said that we must put aside all thought of the arts until the world has been made safe for democracy. If men had taken that attitude in the past there never would have been a civilisation or a civilised ideal for us to inherit; and I do not know that Providence has ever promised to men either the Arcadian bliss or the reign of justice which this argument seems to have in view. All the time it has been a case of plucking beauty out of dangerous crags and crevices, and making sure that there should be music somewhere though apparently the world was generally near the edge of the abyss. And we must have our Elizabethan literature even though the Spanish Armada may be coming, because it is always part of the game that the good life must be attained now, no matter at what date in history you place the 'now.'

Generally, the Court tries to evenly distribute majority opinions. This term, four members of the Court had seven majority opinions: Roberts, Thomas, Sotomayor, and Kagan. Three members had six majority opinions: Gorsuch, Kavanaugh, and Barrett. Justice Jackson had five. And Justice Alito had four.

It would be unusual for the third-most-senior Justice to have so few majority opinions. My speculation is that Alito lost two majority opinions.

First, a few weeks ago, I wrote that Justice Alito may have lost the majority opinion in Gonzales v. Trevino. That case was argued in the March sitting. Alito did not have any majority opinions from that sitting. Every other Justices from that sitting had at least one opinion--Sotomayor and Thomas each had two! But Trevino was released as a per curiam opinion, with an Alito concurrence. I observed:

Why is this a per curiam opinion? It is possible that Justice Alito was assigned the majority opinion, but lost it, and the Chief came in to salvage the majority with a narrow per curiam. At present, Alito does not have any assignments from the March sitting.

Second, Justice Alito also may have lost the majority opinion in the two NetChoice cases. Those cases were argued in the February sitting. Alito did not have any majority opinions from that sitting. Every other Justice had at least one assignment--Sotomayor had two. Here is the vote breakdown in NetChoice:

KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SOTOMAYOR, KAVANAUGH, and BARRETT, JJ., joined in full, and in which JACKSON, J., joined as to Parts I, II and III–A. BARRETT, J., filed a concurring opinion. JACKSON, J., filed an opinion concurring in part and concurring in the judgment. THOMAS, J., filed an opinion concurring in the judgment. ALITO, J., filed an opinion concurring in the judgment, in which THOMAS and GORSUCH, JJ., joined.

My guess is that Justice Thomas assigned the majority opinion to Justice Alito. At conference, Justices Barrett and Jackson were with the majority. But Alito's opinion that tried to do too much. Justice Barrett became uneasy with the Alito opinion, and Justice Kagan accommodated her join. Then, Justice Jackson was able to join enough of the Kagan opinion to make it a solid, six-member majority. At that point, Justices Alito, Thomas, and Gorsuch were left concurring in judgment. And that 30-page concurrence sure looks a lot like a majority opinion.

All of this, of course, is speculation. But it would explain how Justice Alito had only four majority opinions. The story of this term has been Justice Barrett's moving away from the Court's conservatives and towards the welcoming arms of Justice Kagan. This movement probably happens more than we are aware--this is one spot where we can guess what happened. The other story of this term is that the Justices have absolutely no idea what to do with facial challenges--see Rahimi, Trump, and NetChoice. More on that later.

I've now finished reading and editing the Court's 119 page decision in Trump v. United States. Even though the Court is deciding fewer and fewer cases, I feel like I am reading more and more, but learning less and less. This one was a tough slog.

I distilled the case down to about 33 pages for the 2024 Barnett/Blackman supplement. You can download it here. I imagine this case will appear in the next edition of the casebook, replacing Clinton v. Jones and Trump v. Vance. More likely than not, we will just include Chief Justice Roberts's majority and parts of Justice Sotomayor's dissent. Justice Thomas's concurrence has important implications for the Appointments Clause (which I will write about later), but it doesn't have much bearing on the presidential immunity issue. Were Justice Barrett the fifth vote, her concurrence would be quite significant, but as the sixth vote, it probably will not have much lasting impact. ConLaw students will probably not have much interest in the evidentiary issue that she thought important. Sometimes, less is more. I thought Justice Jackson's dissent had some insights into the framework behind punishment, though it was largely duplicative of what Justice Sotomayor wrote.

I feel like a bit of a slacker. The term is over, and I still haven't finished reading Jarksey (98 pages), Grants Pass (74 pages), NetChoice (96 pages), and Corner Post (70 pages). That totals more than 300 pages. I wrote several posts on Chief Justice Roberts's majority opinion in Loper Bright, but I haven't had time to write about the concurrences and dissents. Those will come soon.

Stay tuned.