The Volokh Conspiracy

All law students study Mapp v. Ohio (1961). In this landmark case, the Supreme Court held that the exclusionary rule should be applied to state criminal prosecutions. In other words, evidence seized in violation of the Fourth Amendment could not be admitted in Court. Previously, in Wolf v. Colorado (1949), the Supreme Court declined to "incorporate" the exclusionary rule. (Incorporation is not exactly the right term here, but it is close enough.) Rather, Wolf held, the exclusionary rule would only be enforced with regard to federal criminal prosecutions as part of the Supreme Court's "supervisory power" of the lower courts.

In the lower courts, Mapp was litigated as a First Amendment case. Dollree Map was arrested for possessing certain obscene materials. Indeed, the oral arguments focused extensively on the First Amendment issues. It was not litigated as a Fourth Amendment case.

Mapp's counsel did not ask the Supreme Court to overrule Wolf. Justice Frankfurter pointed out that the counsel for Mapp did not even mention Wolf in their brief.

Felix Frankfurter: Are asking us to overrule the Wolf case in this Court? I notice it isn't even cited in your brief.

The Ohio Supreme Court didn't even mention the issues!

Felix Frankfurter:  Well, as I understand it, when dealing with an Ohio case, what the court decides is authoritatively expressed only in the syllabi, but I can go to the opinion to find out, perhaps to get some light on what the syllabi means. . . . So far as I can make out in reading Ohio State, 170 Ohio State, that matter wasn't adverted to in the opinion, and certainly not in the syllabi. That's right, isn't it?

And Justice Harlan explained that the only issue before the Court was the First Amendment question:

John M. Harlan II: Well, that's the only question we've got here, as to whether the statute's constitutional or not constitutional, isn't it?

Harlan asked Mapp's lawyer point blank if they were asking the Court to overrule Wolf. The lawyer said no.

John M. Harlan II: Well, that means you're asking us to overrule Wolf against Colorado?

A. L. Kearns: No, I don't believe we are.

So who asked for Wolf to be overruled? The ACLU arguing as amicus.

Bernard A. Berkman: Mr. Chief Justice, may it please the Court. Before I get into the area which was allotted to me, I would like to say that the American Civil Liberties Union and its Ohio Affiliate, the Ohio Civil Liberties Union, is very clear, in response to the question which was directed to counsel for the appellant, that we are asking this Court to reconsider Wolf versus Colorado and to find that evidence which is unlawfully and illegally obtained should not be permitted into a state proceeding, and that its production is a violation of the Federal Constitution, the Fourth Amendment and the Fourteenth Amendment. We have no hesitancy about asking the Court to reconsider it because we think that it is a necessary part of due process.

Justice Stewart inquired if the ACLU was asking the Court to overrule Wolf. The lawyer for the ACLU contended that its interest did not line up with that of Dollree Map, but it didn't matter.

Potter Stewart: Are you asking us to re-examine Wolf, or are you relying on Rochin against California?

Bernard A. Berkman: We are asking the Court to re-examine Wolf. Our interest is not necessarily the same as that of the defendant who was convicted in this case, and our claim is more broad than that, Mr. Justice Stewart.

And the Supreme Court did exactly what the ACLU as amicus asked for. The Court overruled Wolf. Footnote 3 of the majority opinion states:

Other issues have been raised on this appeal but, in the view we have taken of the case, they need not be decided. Although appellant chose to urge what may have appeared to be the surer ground for favorable disposition, and did not insist that Wolf be overruled, the amicus curiae, who was also permitted to participate in the oral argument, did urge the Court to overrule Wolf.

Justice Harlan's dissent was incensed that the Court took this approach. He wrote:

[Obscenity] was the principal issue which was decided by the Ohio Supreme Court, which was tendered by appellant's Jurisdictional Statement, and which was briefed [Footnote 5] and argued [Footnote 6] in this Court. In this posture of things, I think it fair to say that five members of this Court have simply "reached out" to overrule Wolf.

[Footnote 5] The appellant's brief did not urge the overruling of Wolf. Indeed, it did not even cite the case. The brief of the appellee merely relied on Wolf in support of the State's contention that appellant's conviction was not vitiated by the admission in evidence of the fruits of the alleged unlawful search and seizure by the police. The brief of the American and Ohio Civil Liberties Unions, as amici, did, in one short concluding paragraph of its argument, "request" the Court to reexamine and overrule Wolf, but without argumentation. I quote in full this part of their brief:
"This case presents the issue of whether evidence obtained in an illegal search and seizure can constitutionally be used in a State criminal proceeding. We are aware of the view that this Court has taken on this issue in Wolf v. Colorado, 338 U. S. 25. It is our purpose by this paragraph to respectfully request that this Court reexamine this issue and conclude that the ordered liberty concept guaranteed to persons by the due process clause of the Fourteenth Amendment necessarily requires that evidence illegally obtained in violation thereof, not be admissible in state criminal proceedings."

[Footnote 6] Counsel for appellant on oral argument, as in his brief, did not urge that Wolf be overruled. Indeed, when pressed by questioning from the bench whether he was not, in fact, urging us to overrule Wolf, counsel expressly disavowed any such purpose.

Whenever I hear outrage about overruling Roe in Dobbs, I think back to Mapp. There was no discussion of stare decisis at all, and the Court "reached out" to overrule a precedent that only an amicus asked to be overruled, and did so in a single paragraph without any meaningful analysis. But the Warren Court took the "right" approach to stare decisis. I suppose if you remember the 1960s, you weren't there.

More relevant to the present day, the holding of Mapp suggests that an Amicus who is invited to participate can ask the Supreme Court to overrule a precedent, and the issue is not waived. Indeed, the Amicus was allowed to make this request for the first time before the Supreme Court, even where it was not raised in the lower court litigation. The Supreme Court apparently did not see any problem with waiver or the party presentation rule here. If what the ACLU did was proper, it stands to reason that a similar request could be made by an amicus who is invited to participate in the lower courts, if only to put everyone on notice that a precedent is in doubt, and to preserve the issue for review by the Supreme Court.

A recurring theme in Justice Barrett's opinions is making attorneys work for their case. She will not connect their dots. Unless they forcefully make each step in an argument, they have not met their burden. Brackeen v. Haaland demonstrates this fastidiousness.

And, we saw it once again in Moore v. United.

Congress's power to attribute the income of closely held corporations to their shareholders is a difficult question—and unfortunately, the parties barely addressed it. Without focused briefing on the attribution question, I would not resolve it. Subpart F and the MRT may or may not be constitutional, nonarbitrary attributions of closely held foreign corporations' income to their shareholders. In this litigation, however, the Moores have conceded that subpart F is constitutional. Tr. of Oral Arg. 9. And I agree with theCourt that subpart F is not meaningfully different from the MRT in how it attributes corporate income to shareholders. Ante, at 20–21. Taxpayers generally bear the burden to show they are entitled to a refund. United States v. Janis, 428 U. S. 433, 440 (1976); see also Haaland v. Brackeen, 599 S. 255, 277–278 (2023) (burden to show unconstitutionality). Given the Moores' concession, they have not met that burden here. For that reason, I concur in the Court's judgment affirming the judgment below.

In candor, I have not carefully reviewed the record, so I do not know what "barely addressed" means here. But whatever it was, it was not enough for Professor Barrett.

BTW, the title has nothing to do with this post, but I liked the pun. I'm sure some law student will find it a useful title for a student note. In the spirit of Brian Frye, you're welcome to use it as you wish!

Nearly twelve years later, I still haven't gotten over NFIB v. Sebelius (2012). No, it is not because of Chief Justice Roberts's "saving construction," which fused together the individual mandate and the penalty provision to save the law.  Nor is it the rewriting of ACA to allow states to opt out of the Medicaid expansion. I've come to terms with both of those elements of the Court's decision.

No, the part I cannot get over is the Chief Justice's discussion of whether the ACA's penalty-tax is a "direct" or "indirect" tax. Roberts mustered four muddled paragraphs that explains how difficult and unclear this area is, and he ultimately shrugs his shoulders. Roberts closes:

The shared responsibility payment is thus not a direct tax that must be apportioned among the several States.

But if it is not a direct tax, what is it? Roberts does not tell us. He simply moves onto the saving construction. The joint dissent called out the Chief's failure to decide a critical issue:

Finally, we must observe that rewriting §5000A as a tax in order to sustain its constitutionality would force us to confront a difficult constitutional question: whether this is a direct tax that must be apportioned among the States according to their population. Art. I, §9, cl. 4. Perhaps it is not (we have no need to address the point); but the meaning of the Direct Tax Clause is famously unclear, and its application here is a question of first impression that deserves more thoughtful consideration than the lick-and-a-promise accorded by the Government and its supporters. The Government's opening brief did not even address the question—perhaps because, until today, no federal court has accepted the implausible argument that §5000A is an exercise of the tax power. And once respondents raised the issue, the Government devoted a mere 21 lines of its reply brief to the issue. Petitioners' Minimum Coverage Reply Brief 25. At oral argument, the most prolonged statement about the issue was just over 50 words. Tr. of Oral Arg. 79 (Mar. 27, 2012). One would expect this Court to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression.

Roberts is a brilliant lawyer. But here, the emperor had no clothes.

Reading Moore v. United States gave me NFIB PTSD. Each of the three opinions cited Roberts's incomplete analysis of the taxing power. And I shuddered each time.

In Moore v. United States, each of the separate opinions contended that the 16th Amendment (ratified in 1913) "overruled" Pollock v. Farmers' Loan & Trust Co. (1895). For example, Justice Kavanaugh's majority opinions phrased it this way:

This Court's 1895 decision in Pollock v. Farmers' Loan & Trust Co., 158 U. S. 601, later proscribed unapportioned federal taxation of income from property, and therefore overruled that holding of Hubbard. See supra, at 7. But in 1913, the Sixteenth Amendment then overruled that aspect of Pollock.

From Justice Barrett's concurrence:

The Sixteenth Amendment overruled Pollock's second holding, stating that "Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment." But it did not overrule Pollock's first holding that taxes on personal property are direct taxes.

From Justice Thomas's dissent:

The Sixteenth Amendment was ratified to overrule that holding from Pollock, and it can therefore be understood only in the context of Pollock and the preceding history.

Justice Jackson frames the issues slightly differently:

In 1913, the People's representatives responded, using their power to overturn Pollock via constitutional amendment. The Sixteenth Amendment restored to Congress the power to tax "incomes, from whatever source derived, without apportionment."

Here, Jackson suggests that the original Constitution includes this power, and that Pollock erroneously deprived Congress of this authority. The Amendment was like hitting CTRL-Z on the Supreme Court. (Would she see the 11th Amendment and Chisholm v. Georgia in the same fashion?) To make the point, Jackson cites one of Justice Harlan's lesser-known, but equally important dissents:

I have no doubt that future Congresses will pass, and future Presidents will sign, taxes that outrage one group or another—taxes that strike some as demanding too much, others as asking too little. There may even be impositions that, as a matter of policy, all can agree are wrongheaded. However, Pollock teaches us that this Court's role in such disputes should be limited. "[T]he remedy for such abusesis to be found at the ballot-box, and in a wholesome public opinion which the representatives of the people will not long, if at all, disregard, and not in the disregard by the judiciary of powers that have been committed to another branch of the government." Pollock, 158 U. S., at 680 (Harlan, J., dissenting).

Everyone knows Lochner, Plessy, and the Civil Rights Cases. But most students do not know Pollock.

I think it is a mistake to view a constitutional amendment as overruling a case in the same fashion that the Supreme Court can overrule a case. A constitutional amendment changes the underlying organic law. The Sixteenth Amendment did not state that Pollock was wrong--although many supporters likely held that view. Instead the Sixteenth Amendment granted Congress new powers, which it could then exercise. Analogizing a constitutional amendment to a judicial decision, regrettably, breeds the cult of judicial supremacy. It presumes that the Supreme Court and the Article V process employ similar means: both institutions can change the Constitution by overruling some precedent.

I would make the same argument when Congress passes a new statute in response to a Supreme Court decision. And I have some authority here. In the spring of 2009, Justice Alito visited George Mason Law school. About two years earlier, the Court had decided Ledbetter v. Goodyear Tire and Rubber Company (2007). Justice Alito's majority opinion held that Ledbetter's claim was barred by the statute of limitations. Justice Ginsburg's dissent famously called on Congress to amend Title VII. And the first bill that President Obama signed into law was the Lilly Ledbetter Fair Pay Act of 2009. (I've heard that Justice Ginsburg had a signed copy of that bill on her chamber walls.)

Someone asked Justice Alito how he felt about Congress overruling his decision. Alito replied, as I wrote above, that Congress does not "overrule" a decision. Instead, Congress changes the law. And going forward, the courts have to apply that new law. I agree with Alito in 2009.

For those who've followed the progress of a dangerous stealth quota provision in Congress, I'm pleased to report that what looked three weeks ago like a retreat on the issue has turned into a full-fledged rout.

A new discussion draft of the widely touted American Privacy Rights Act (APRA) has been released. This bill was hailed as a bipartisan and bicameral compromise with overwhelming support when it first appeared. The original version contained a detailed blueprint for imposing race, gender, and other preferences on algorithms that use personal data. After a long analysis of the risks of such an approach ran here in the Volokh Conspiracy, a second version of the bill was released that dropped most of the detail but still had troubling provisions that could have encouraged similar preferences, as pointed out in a second Volokh Conspiracy post.

Now a third discussion draft has been released, and it drops all of the algorithmic discrimination and civil rights provisions that were driving quotas. It is a complete victory for those of us who objected to the smuggling of race and gender preferences into the digital infrastructure that will govern our economy and society for the next several decades.

The bill will go to markup next week. It remains controversial. A good summary of the issues can be found in this piece by Brandon Pugh and Steven Ward of R Street. There will be some bare-fisted R-on-R fighting over the bill, a priority for the retiring chair of the House commerce committee. But at least quotas won't be part of the bargain.

On a personal note, this has been an unusual experience for me. There is no doubt that staff and members of the commerce committee have been paying attention to these posts, and modifying the bill to respond to them.  But exactly which staff and which members has never been entirely clear. So I can only lift a virtual glass to the anonymous heroes who performed such effective work in the trenches: And I promise that I'll be glad to buy you an actual beer if I ever learn who you are!

As readers of this blog now know, I am opposed to the idea that courts can, by not publishing an opinion, render it of no weight as precedent in future cases. In my view, one of the substantial limits on federal judicial power is the fact that when judges issue an opinion, future judges are bound by that opinion as a matter of precedent even if they sympathize less with the parties in that future case.  This is a core feature of the rule of law.

Unpublished opinions that have no weight as precedent are, in my opinion, inconsistent with the rule of law. The Federal Rules of Appellate Procedure need to be amended to require federal court of appeals judges to give the same weight as precedent to unpublished opinions as they give to published opinions.

Abbe Gluck, who is  the Alfred M. Rankin Professor of Law and the founding Faculty Director of the Solomon Center for Health Law and Policy at Yale Law School, has done a very impressive empirical study of unpublished options.  Her study found that, in some circumstances, they appear to burden heavily socially disadvantaged groups of people. A link to her study appears below.

Is Unpublished Unequal? An Empirical Examination of the 87% Nonpublication Rate in Federal Appeals

https://www.cornelllawreview.org/2022/04/16/is-unpublished-unequal-an-empirical-examination-of-the-87-nonpublication-rate-in-federal-appeals/

Note particularly Keith Whittington's Originalism: A Critical Introduction, which Justice Barrett cited several times.

UPDATE: The Criminal Procedure treatise on which Orin Kerr is a coauthor was cited today by Justice Jackson in Erlinger v. U.S. I didn't read that case as closely, so I missed the cite; thanks to commenter JoeFromtheBronx for pointing it out.

Judge Jerry Smith of the United States Court of Appeals for the Fifth Circuit has responded to my June 19th post on this blog by e-mail with a critique. My earlier blog post said that the fact that 90% of federal court of appeals decisions are designated as "unpublished" is a growing threat to the rule of law.

Judge Smith does point out correctly that Federal Rule of Appellate Procedure 32.1 states that (for federal courts only): "[a] court may not prohibit or restrict the citation of federal judicial opinions [or] orders designated as 'unpublished' ***"." Rule 32.1, by the way, applies only to decisions issued after 2007 -- two years after I had stopped teaching Federal Jurisdiction. Before that judges in some jurisdictions could prohibit or restrict the citation of federal judicial opinions or orders by calling them "unpublished".

I am happy to hear that the aspiration of many inferior federal courts not to prohibit the citation of their "unpublished" precedents or orders has now been rendered unlawful as well, as its having always been unwise. Note that this rule does not say that federal courts of appeals are bound by stare decisis to follow their prior "unpublished" opinions. The fact remains, as I stated in my June 19th post, that the federal court of appeals judges are rendering 90% of their decisions in cases that do not bind them as precedent in future cases.

Admittedly most "unpublished" opinions address an issue that has been, as Judge Smith puts it, "definitively decided." If so, all future unpublished opinions should be binding precedent on future panels, which Judge Smith essentially agrees is not the case today. Otherwise, their issuance is, as I said on June 19th, a growing threat to the rule of law.

Judge Smith notes that I erred in suggesting that the Supreme Court never issues a writ of certiorari on an unpublished opinion. I stand corrected on that point.

But, I still think that a U.S. Supreme Court that hears only 60 appeals from the 42,000 decisions issued annually by the federal courts of appeals, not to mention the federal questions decided annually by the State Supreme Courts, see Trump v. Anderson, 601 U.S. 100 (2024) (reversing the Colorado Supreme Court), is much less likely to grant certiorari on an opinion that is not a precedent, than they are to grant certiorari on cases that do create a precedent. After all, the Supreme Court does not sit as a court to correct errors anymore. It only grants certiorari in 3% of the cases before it where there is either: 1) a circuit split; or 2) a question of law of general and public importance. A non-binding unpublished opinion is unlikely to be of general and public importance and should never be issued where there is a circuit split.

An earlier version of this post included material that I now regret posting and that I now retract.

An aphorism attributed to Edward Jacob QC:

The importance of questions was in this ratio: first, costs; second, pleading; and third, very far behind, the merits of the case.

That's quoted in Ben Kremer, The Origin of the Usual Undertaking as to Damages When Obtaining Interlocutory Injunctive Relief, 17 J. Equity 211, 225 (2024). Kremer's paper is outstanding and shows the history and normative basis for injunction bonds. And if you aren't reading the Journal of Equity, you should be!

The Supreme Court has nineteen remaining cases to be decided. There will likely be fewer majority opinions as Loper Bright/Relentless and the NetChoice cases will probably be consolidated. To make the math easier, there will probably be seventeen actual opinions handed down.

The Court has scheduled an opinion day for tomorrow, Friday, June 21. Next week there will probably be days added for Tuesday, Thursday, and Friday. One wrinkle is that there will be a presidential debate the evening of Thursday, June 27.

The last time the Supreme Court intersected with a presidential debate was on February 13, 2016. That afternoon, Justice Scalia's death was announced, and that evening, Donald Trump told us he would fill the seat with Judges Pryor or Sykes. (For those keeping track at home, neither judge was placed on the Supreme Court.)

Does the Court really want the debate to turn into a free-for-all on presidential immunity. Methinks not. In the past, I've speculated that the Court (really the Chief) tries to stagger out opinions to minimize the press scrutiny--combining some conservative and some liberal opinions on a given day. If so, then the biggest cases all may come down on Friday, June 28--after the debate. And, if my math is right, Chief Justice Roberts may write each of them Rahimi, Loper-Bright/Relentless, and Trump. And they would be announced back-to-back. I think it is very unlikely that Roberts would allow any of those cases to mar the debate.

Here we go. Seventeen opinions spread over four hand-down days. The next week will be busy.