The Volokh Conspiracy

So far, I have not been blown away by the revelations from Justice Stevens's papers. Maybe my expectations were too high. In one sense, the earlier drafts are something like legislative history history, and do not represent the full opinion of the Court. But more precisely, Stevens did not have all of the memos that explain why certain changes were made. I suppose those records may be found with Justice Kennedy's papers.

In any event, the latest story from Joan Biskupic and Devan Cole includes a few worthwhile revelations about Lawrence v. Texas.

First, believe it or not, Justice Kennedy's draft opinion had even more cringeworthy rhetoric. And the Court's progressives objected!

Kennedy also withdrew language that some of his colleagues regarded as awkward or out of place, such as, "The sexual instinct is of endless fascination for the human. Its beauty and power are best respected when the individual has substantial freedom to explore it to attain a better understanding of the concept of self and the place he or she has in a larger universe."

His final opinion, instead, said in that section, "When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice."

Justice Scalia, preach:

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: "The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity," I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

And to paraphrase Scalia and Bismarck, "no one should see how sausages or Kennedy opinions are made."

Second, at conference, Justice Breyer only wanted to grant cert if there were five votes to reverse Bowers:

When the nine justices considered in December 2002 whether to take up the appeal, Stevens, Kennedy, David Souter and Ruth Bader Ginsburg voted to hear the case. (It takes four to grant a case a hearing but five to decide it.)

Breyer signaled that he wanted to hear the case, too, Stevens' notes indicate, but only if those ready to hear it were prepared to stick together for a majority to reverse Bowers' holding that constitutional due process of law does not cover private same-sex relations.

I don't know if we have ever seen confirmation that there is such an overt discussion of the merits at the conference vote to grant cert. I always assumed these conversations happened, but Stevens's papers reflects that practice exists.

Third, Justice O'Connor voted not to grant cert--perhaps to avoid having to revisit Bowers.

Then-Chief Justice William Rehnquist and Justices O'Connor, Scalia and Clarence Thomas voted to let the lower court action and the charges against the men stand. It is not known why O'Connor voted against the appeal at this stage, but she may have wanted to avoid confronting her vote with the majority in the earlier Bowers case.

Fourth, O'Connor reached her decision on equal protection after oral arguments, and never planned to join Justice Kennedy's majority opinion.

After oral arguments on March 26, 2003, the five votes held, according to Stevens' notes from their private meeting, and O'Connor moved to their side as well. She wanted to reverse the lower court ruling, on the grounds that the Texas law violated the equal protection of the law. That allowed O'Connor, also an appointee of Ronald Reagan, to avoid casting a vote to outright reverse her Bowers v. Hardwick position.

Fifth, Justice Breyer urged Justice Kennedy to limit his majority opinion to the sodomy ban. Breyer, ever the pragmatist, realized that Lawrence should not, overtly at least, reach out to the same-sex marriage issue. That (inevitable) result would come twelve years later in Obergefell.

"After reading my first circulation, Stephen [Breyer] suggested revisions to make it clear we do not decide more than the question presented," Kennedy wrote on June 10 of that year of a conversation with Breyer. "These, plus a few other edits, are contained in a new circulation to the entire Court. Stephen's suggestions were quite constructive, and I am hoping how he can join."

Sixth, it seems that Justice O'Connor initially framed her equal protection concurrence in terms of a classification. But she had discussions with Amy Wildermuth, a Stevens clerk, who was the only-out gay law clerk at the Court that term. Wildermuth suggested other language that focused on "moral disapproval."

At the top of Stevens' copy of O'Connor's first draft is the small notation, "Suggested changes to SOC's opinion from Amy Wildermuth." Throughout the eight-page draft are various edits, mainly concerned with the nuances of phrasing. . . .

In her conclusion, for example, O'Connor had originally written, "A law branding one class of citizens as criminal solely because the majority disapproves of the defining characteristic of the class runs contrary to the values of the Constitution and the Equal Protection Clause."

O'Connor changed it to Wildermuth's suggested language: "A law branding one class of persons as criminal solely based on the State's moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection Clause."

Wildermuth's revision here would prove quite significant down the road. This theme of "moral disapproval" played an important role in Justice Kennedy's majority opinion, and would ultimately form the basis for Windsor and Obergefell. Justice Scalia predicted as much in his Lawrence dissent:

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O'Connor seeks to preserve them by the conclusory statement that "preserving the traditional institution of marriage" is a legitimate state interest. But "preserving the traditional institution of marriage" is just a kinder way of describing the State's moral disapproval of same-sex couples. Texas's interest in § 21.06 could be recast in similarly euphemistic terms: "preserving the traditional sexual mores of our society." In the jurisprudence JUSTICE O'CONNOR has seemingly created, judges can validate laws by characterizing them as "preserving the traditions of society" (good); or invalidate them by characterizing them as "expressing moral disapproval" (bad).

One final point on sourcing. CNN quotes Wildermuth:

"'Are we using the right terms?' 'Are we saying this in a way that could be offensive?' If you're not in the culture, you just don't know," Wildermuth said in an interview with CNN about the kinds of questions that came her way.

Wildermuth, now teaching at Ohio State Moritz College of Law, emphasized the era, when justices were less familiar with LGBTQ interests. "I was happy to share my perspective," she said. "It was not something I was uncomfortable with."

Nothing in the Stevens files indicated why Wildermuth was enlisted. When reached by CNN, she explained, "It wasn't unusual for people working on cases to be asked to help the clerks in other chambers, to provide feedback. It also was true that I was the only out gay law clerk at the time. That may also have prompted interest in getting feedback from me and from my co-clerks."

CNN apparently also spoke with other clerks from "various chambers" who confirmed Wildermuth's account, and commented on other aspects of deliberations. Jeannie Suk Gersen likewise wrote an article about the deliberations in Grutter and Gratz, based on the Stevens papers. She quoted two clerks from that term, Cristina Rodriguez (O'Connor) and Adam Mortara (Thomas).

Is talking to the press about internal deliberations the new normal? Is there some sort of statute of limitation--an O'Connor-esque 20 year clock on law clerk confidentiality? Or, is it that law clerks can speak out of turn to confirm information in publicly-available files.

Senator Ron Wyden (D-OR) is to moral panics over privacy what Andreessen Horowitz is to cryptocurrency startups. He's constantly trying to blow life into them, hoping to justify new restrictions on government or private uses of data.  His latest crusade is against the intelligence community's purchase of behavioral data, most of which is already generally available to everyone from Amazon to the GRU. He has relaunched his campaign several times, introducing legislation, holding up Avril Haines's confirmation over the issue, and extracting a DNI report on the topic that has now been declassified. The report was a sober and reasonable explanation of why commercial data is valuable for intelligence purposes, so naturally WIRED magazine's headline summary was, "The U.S. Is Openly Stockpiling Dirt on All Its Citizens." Matthew Heiman takes us through the story, sparking a debate that pulls in Michael Karanicolas and Cristin Flynn Goodwin.

Next, Michael explains IBM's announcement that it has made a big step forward in quantum computing.

Meanwhile, Cristin tells us, the EU has taken another incremental step forward in producing its AI Act – mainly by piling even more demands on artificial intelligence companies. We debate whether Europe can be a leader in AI regulation if it has no AI industry. (I think it makes the whole effort easier, since the EU doesn't have to worry about whether its regulatory regime is even remotely plausible. This looks like the EU's working strategy, to judge by a Stanford study suggesting that every AI model on the planet is already in violation of the AI Act's requirements.)

Michael and I discuss a story claiming persuasively that an Amazon driver's dubious allegation of racism led to an Amazon customer being booted out of his own "smart" home system for days. This leads us to the question of how Silicon Valley's many "local" monopolies enable its unaccountable power to dish out punishment to customers it doesn't approve of.

Matthew recaps the administration's effort to prevail in the debate over renewal of section 702 of FISA. This week, it rolled out some impressive claims about the cyber value of 702, including 702's role in identifying the Colonial Pipeline attackers (and getting back some of the ransom). The administration also introduced yet another set of FBI reforms, this time designed to ensure that agents face career consequences for breaking the rules on accessing 702 data.

Cristin and I award North Korea the "Most Improved Nation State Hacker" prize for the decade, as the country triples its cryptocurrency thefts and shows real talent for social engineering and supply chain exploits. Meanwhile, the Russians who are likely behind Anonymous Sudan decided to embarrass Microsoft with a DDOS attack on its application level. The real puzzle is what Russia gains from the stunt.

Finally, in updates and quick hits, we give deputy national cyber director Rob Knake a fond sendoff, as he moves to the private sector; we anticipate an important competition decision in a couple of months as the FTC tries to stop the Microsoft-Activision Blizzard merger in court, and I speculate on what could be a Very Big Deal – the possible breakup of Google's adtech business.

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ProPublica styles itself as "an independent, nonprofit newsroom that produces investigative journalism with moral force." Let me translate "moral force" for you: ambushing conservatives with misleading accounts of dated accusations that, at worst, concerned good faith attempts to comply with the rules. I've lost count of the number of times that wild accusations against Justice Thomas have fallen apart. I think the only upshot of this breathless reporting is that the public has become tired/bored/numb to this "moral force."

ProPublica's latest research target is (you guessed it) Justice Alito. On Friday, ProPublica contacted Justice Alito, and asked him to respond to questions by a deadline of noon EDT Tuesday. Justice Alito provided such a response--in the Wall Street Journal.

Alito's decision was a masterstroke. Rather than providing comments to ProPublica, which can be cherry-picked and quoted out of context, Alito spoke directly to the public. Indeed, I long ago decided that if any outlet were running a hit job on me, and asks me for comment, I would pre-empt their story and post my reply on the blog. Alas, most of the hit jobs on me never bother seeking comment. But such is life.

Why did Alito speak directly to the public? Because there is a sustained movement to destroy the Supreme Court. In the past, the Court could have expected members of the Bar and the Academy to defend the Court. But no longer. Because five justices had the audacity to let the people cast votes on abortion (and in the past year, that decision has overwhelmingly resounded in favor of Democrats), the Supreme Court must be obliterated. I think several of the Court's moderates are swinging left this term to forestall more attacks. Who would have predicted that Justice Sotomayor would be the Justice in the majority the most on 6-3 "conservative" Court? Stay tuned for the affirmative action cases.

I have described Justice Alito as the heart of the Supreme Court. He defends the Supreme Court in ways that Chief Justice Roberts simply cannot.

I'll write more on this issue when I finally see the ProPublica allegations. One point to flag. Justice Alito offered a factual rebuttal to ProPublica's "investigative journalism." Apparently, ProPublica alleged that Alito was served wine that cost more than $1,000 at some luxury resort. Alito claims that accusation is "misleading." And who are you going to believe? ProPublica's shoddy reporting in the past has undermined any benefit of the doubt. On a personal note, a reporter from ProPublica contacted me last week seeking comment. I never even hit reply.

--George Burton Adams, "The Continuity of English Equity"

Enough about ICWA! Let's talk about qui tam!

Under the False Claims Act, private citizens can bring suit on behalf of the federal government for a "civil fraud" against the United States. These suits are known as qui tam claims, Latin for "in the name of the King." Qui tam suits raise several significant separation of powers issues. First, how can a private citizen assert an Article III injury, when the federal government suffers the injury? Second, how can a private citizen represent the "unitary" executive branch, as reflected in Article II?

In 1989, William Barr, the Assistant Attorney General for the Office of Legal Counsel, prepared a memorandum opinion for the Attorney General, concluding that private qui tam actions violate Article III standing doctrine and the separation of powers. The precise status of this document is somewhat in dispute, as an "Editor's Note" explains that "This memorandum was not intended to present the official position of the Department of Justice at the time of its writing, but rather was intended to contribute to a discussion within the Department over what position should be adopted." And in 1996, Walter Dellinger, as head of OLC, repudiated Barr's views.

But in the late 1980s and early 1990s, the constitutionality of qui tam suits was really, really important. And, as it turns out, this issue became something of a litmus test in the George H.W. Bush administration. When Justice Brennan retired, there were several candidates on the short list: Edith Jones, Kenneth Starr, Laurence Silberman, and (of course) David Souter. In hindsight, anyone would have been better than Souter, but one of the more qualified nominees--Kenneth Starr was disqualified. Why? Apparently, as Solicitor General, he thought a challenge to the qui tam provision would not work. As a result, he was blacklisted by Barr, as well as Mike Luttig. Yes, that Mike Luttig. Before Luttig was a former conservative judge (really a former-conservative who was a judge), he was a high-flying wunderkind in the Bush administration. Jan Crawford recounts in her book, Supreme Conflict, Barr and Luttig determined that Starr's views on qui tam made him unacceptable. (Jon Adler discussed it here). And, Attorney General Dick Thornburgh threatened to resign if Bush selected Starr. Alas, instead of Starr, we got David Souter.

So how was Souter on the qui tam issue? In 2000, Justice Souter joined a Justice Stevens dissent, finding that litigants had Article III standing to sue a state agency under the federal False Claims Act. Some stellar vetting there by the Bushies. (Runs in the family, apparently.) But that decision, Vermont Agency of Natural Resources v. U.S. ex rel Stevens, left open the Article II question. And, perhaps to Barr and Luttig's credit, the other Bush 41 nominee was solid on this issue.

Fast-forward to June 16, 2023. The Supreme Court decided United States ex rel. Polansky v. Executive Health Resources, Inc. No, not that roaming Polanski. This case involved a Doctor Polansky who alleged that a health firm defrauded the government. The question presented is fairly technical: can the government move to dismiss a qui tam case if it fails to intervene during an early stage known as the "sealing" period. Justice Kagan wrote a delightful majority opinion for eight justices, finding that the government could move to dismiss the complaint, even if it fails to intervene during the "sealing" period. Justice Thomas dissented. He would have found that the government lacks this ability.

I don't have strong thoughts on who has the better of the statutory argument. Rather, I will focus on the constitutional issue. Justice Thomas's dissent urged the Court to consider, in the appropriate case, whether the qui tam provision is consistent with Article II. Indeed, the case for its unconstitutionality is much stronger today than in 1989. After all, Barr could only rely on Morrison, and Justice Scalia's dissent. But now we have Seila Law and a string of other cases endorsing the unitary executive theory in various regards.

Justice Thomas explains:

The FCA's qui tam provisions have long inhabited something of a constitutional twilight zone. There are substantial arguments that the qui tam device is inconsistent with Article II and that private relators may not represent the interests of the United States in litigation. Because "[t]he entire 'executive Power' belongs to the President alone," Seila Law LLC v. Consumer Financial Protection Bureau, (2020), it can only be exercised by the President and those acting under him, see id. (THOMAS, J., concurring in part and dissenting in part). And, as "[a] lawsuit is the ultimate remedy for a breach of the law," the Court has held that "conducting civil litigation . . . for vindicating public rights" of the United States is an "executive functio[n]" that "may be discharged only by persons who are 'Officers of the United States'" under the Appointments Clause, Art. II, §2, cl. 2. Buckley v. Valeo, (1976) (per curiam). A private relator under the FCA, however, is not "appointed as an officer of the United States" under Article II. Cochise Consultancy, Inc. v. United States ex rel. Hunt (2019). It thus appears to follow that Congress cannot authorize a private relator to wield executive authority to represent the United States' interests in civil litigation.

What is the strongest argument in favor the constitutionality of qui tam? Past practice:

The primary counterargument has emphasized the long historical pedigree of qui tam suits, including the fact that the First Congress passed a handful of qui tam statutes.

But Justice Thomas, as usual, favors original meaning over congressional practice:

"Standing alone," however, "historical patterns cannot justify contemporary violations of constitutional guarantees," Marsh v. Chambers, 463 U. S. 783, 790 (1983), even when the practice in question "covers our entire national existence and indeed predates it," Walz v. Tax Comm'n of City of New York, 397 U. S. 664, 678 (1970). Nor is enactment by the First Congress a guarantee of a statute's constitutionality. See Marbury v. Madison, 1 Cranch 137 (1803).

I don't think Marsh does enough here. In Marsh, the existence of prayer by the first Congress supported Nebraska's prayer policy. By contrast, Thomas argues that the qui tam laws by the first Congress undermine a similar law enacted two centuries later. Also, I would be very careful not to endorse Chief Justice Marshall's reasoning in Marbury. There are very good arguments to be made that Marshall did not offer the best reading of the Judiciary Act of 1789.

Ultimately, though Justice Thomas puts little weigh in liquidation. One day earlier, Justice Thomas doubted the relevance of early practice concerning "Indian affairs." Meanwhile, Justice Gorsuch insisted that early practice "liquidated" his understanding of the original meaning. (I can speculate why Justice Gorsuch could not join the Polansky dissent, or even signal his agreement with it).

The question is now squarely teed up for some future cert petition:

In examining these issues, moreover, it may be necessary to consider a question that Stevens left unaddressed: What is the source of Congress' power to effect partial assignments of the United States' damages claims? One candidate might be the Necessary and Proper Clause, Art. I, §8, cl. 18; but, if qui tam suits violate Article II, then it appears unlikely that any assignment effectuated by the FCA's qui tam provisions could be considered "necessary and proper for carrying into Execution" any constitutional power. See Gonzales v. Raich, 545 U. S. 1, 60 (2005)(THOMAS, J., dissenting) ("To act under the Necessary and Proper Clause," "Congress must select a means" not "'prohibited' by the Constitution" or "inconsistent with 'the letter and spirit of the Constitution'" (quoting McCulloch v. Maryland, 4 Wheat. 316, 421 (1819); alteration omitted)).

Are there more votes for cert? Justice Kavanaugh wrote a brief concurrence, joined by Justice Barrett, suggesting this issue can be litigated in the future.

I join the Court's opinion in full. I add only that I agree with JUSTICE THOMAS that "[t]here are substantial arguments that the qui tam device is inconsistent with Article II and that private relators may not represent the interests of the United States in litigation." Post, at 7–8 (dissenting opinion). In my view, the Court should consider the competing arguments on the Article II issue in an appropriate case.

Again, when Kavanaugh swings left, his conservative concurrence says "we'll see." But given Justice Gorsuch's preference for liquidation, I don't see him casting a fourth vote for cert. What about the Chief? Maybe he can finally hunt the white whale from the Reagan years, and strike down the qui tam provision? Nope. He upheld Roe. He upheld the 1982 VRA Amendments. And I suspect he will soon uphold racial preferences. Roberts will now go out of his way to do the opposite of what the Reagan Revolution would predict. Sort of like Luttig.

Speaking of predictions, maybe in three decades, the Trump SCOTUS strategy will come to fruition, and there will be four votes to overrule Chevron!

The thirty-fourth episode (Apple Podcasts link here and Spotify link here) of Strangers on the Internet with co-host and psychologist Michelle Lange features an exclusive interview with Stuart Chaseman, the middle-aged Chicagoan musician and entrepreneur who quickly emerged as the fan favorite of the Netflix show "Jewish Matchmaking." While TikToks declared him a male role model to emulate, conservative pundit Ben Shapiro singled him out for only wanting to date women with liberal values.

What Stuart has to say to Ben Shapiro, how Stuart experienced his own Beatlemania moment at a Jewish-Greek food festival in NYC, why a girlfriend lied to him for two years about her political views, and much more can be found on this podcast episode--along with a sneak peek at Stuart's latest music album!