3/3/2019: Schenck v. United States decided.
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
The Other Jurisdictional Question in Moore v. Harper
Did the state court have jurisdiction to grant rehearing?
Last fall the Supreme Court heard oral arguments in Moore v. Harper, the North Carolina case about the "Independent State Legislature Doctrine," which I've written about here. On February 3, however, the North Carolina Supreme Court took the unusual step of granting a petition for rehearing that may cause the state court to reconsider the merits determination that the U.S. Supreme Court is currently reviewing. And yesterday (March 2) the U.S. Supreme Court asked for supplemental briefing about whether that rehearing order renders the decision below non-final, depriving the U.S. Supreme Court of jurisdiction.
Derek Muller has lots more discussion and helpful analysis.
I don't have a strong view about the finality question the Court asked about, but I have been puzzled by a prior, related jurisdictional question. Did the North Carolina state courts have jurisdiction to grant rehearing on the merits?
It is a general maxim of federal jurisdiction that a lower court loses jurisdiction of a case while an appeal is pending. So far as I can tell, this rule isn't entirely mandated by a federal statute, it's just understood to be a consequence of the way appeals work. Similarly, at common law "a writ of certiorari takes the record out of the custody of the inferior tribunal, leaving nothing there to be prosecuted or enforced by execution, and operates as a stay of execution." 14 AM.JUR.2D Certiorari 74 (2d ed.2006).
If that principle applied in Moore v. Harper, then the issue would not be whether the Supreme Court has lost jurisdiction over the case, but rather that the state court might lack jurisdiction to take such actions. Is there some reason that principle would not apply in Moore v. Harper?
One possibility is that the certiorari/pending-appeal principle doesn't apply to state courts for some reason. But I am not sure what that reason would be. The principle doesn't seem to be based on the "supervisory power" of the federal courts or anything like that, but rather on the nature of certiorari or appellate review.
Another possibility is that the principle has changed, at least as applied to certiorari. As Ben Johnson has recounted (including last year on this blog), the Supreme Court now uses certiorari to consider only particular questions in a case, not to take responsibility for the whole case itself. This is not how certiorari worked at common law, and so maybe with that change, the certiorari-jurisdiction principle has changed too. I've never heard anybody say this, but it's possible.
A third possibility, and I suppose it is the most likely, is that this has something to do with what Muller calls "the 'two track' approach in this case":
This case went on two separate tracks after the original North Carolina Supreme Court decision finding a partisan gerrymandering, the "Elections Clause" track and the "remedy" track.
The "Elections Clause" track was this petition for cert to the Supreme Court. The "remedy" track sent it back to a three-judge panel with instructions for the legislature to offer a new map, for the trial court to review that map for whether it was a gerrymander, and to implement its own interim map if the legislature failed to draw an appropriate map.
The petitioners here argued that the "Elections Clause" track could be separated from the "remedy" track because whatever happened with the remedy, the Elections Clause argument would remain–the legislature was not permitted to draw the map it wanted, and any remedy, whatever it was, was not going to allow the legislature to draw the map it wanted. . . .
So the Court took the case on that basis.
The two track approach already suggests some exception to the certiorari-jurisdiction principle is afoot. Presumably the Court's theory was that the "Elections Clause" part of the case was final, and could be reviewed, even if the "remedy" part of the case was not --- which is also related to the point above about the Court reviewing specific questions rather than the whole case.
But, if that is true, wouldn't it also imply that the North Carolina Supreme Court's continuing jurisdiction over the "remedy" part of the case did not give it continuing jurisdiction over the "Elections Clause" part of the case, which was now up on certiorari? That is, if the two tracks were separate enough for one part of the case to go up on cert., wouldn't they also have to be kept separate enough that the state court had lost jurisdiction over that part?
The question marks above are not rhetorical. I've been puzzling over these questions for almost a month, and still am not confident I understand what is going on here. But with the news that the Supreme Court is going to dig in to the jurisdictional issues here, I figured I would take my puzzlement public in the hope that somebody has this figured out.
Thursday Open Thread
What's on your mind?
Declaratory judgments and injunctions are party-specific
Justice Rehnquist in 1975:
Moreover, neither declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs, and the State is free to prosecute others who may violate the statute.
Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975).
Journal of Free Speech Law: "Cancel Culture on Campus: A Critical Analysis," by Prof. Thomas Kelly (Princeton)
Just published as part of the "Non-Governmental Restrictions on Free Speech" symposium; here's the Introduction (the article is here):
To what extent are free speech and open discussion being stifled on college campuses?
This question inspires sharp disagreement. Where some see a serious problem, others deny that there is any genuine reason for concern. Notably, for example, my fellow panelist Professor Mary Anne Franks has criticized what she calls "the myth of the censorious campus" while decrying the "false narrative" of political intolerance on college campuses. Professor Jeffrey Adam Sachs similarly writes of "the myth" of a campus free speech crisis, which he associates with a kind of "moral panic" due to conservative "hysteria." In a piece entitled "Free Speech on Campus Is Doing Just Fine, Thank You," Columbia University president Lee Bollinger, a noted scholar of free speech and the First Amendment, dismisses concerns about the current situation for free speech and open discussion as being due to
a handful of sensationalist incidents on campus—incidents sometimes manufactured for their propaganda value. They shed no light on the current reality of university culture.
Many similar expressions of this general theme can be found; skepticism that there is a genuine problem is well-represented both inside and outside academia. Indeed, skeptics often claim not only that there is nothing to worry about, but that worrying is itself pernicious, inasmuch as doing so plays into the hands of reactionary political interests.
Notwithstanding the frequent reassurances that there is nothing to worry about when it comes to free speech on campus, and even the warnings that worrying about such things is actually harmful, I confess to being among those who worry. Much of my concern relates to the phenomenon that is now widely known as cancel culture. The definition of "cancel culture" is contested. For this reason, and in order to zero in on the phenomenon that I want to explore, in the next section I offer a number of cases that I believe would qualify as examples of cancel culture under any reasonable understanding of that notion. The cases that I offer are not hypothetical ones but actual cases involving current Princeton undergraduates. Although they of course differ from one another and from other examples of cancel culture in their idiosyncratic details, I believe that in important respects they are broadly representative of the phenomenon as it exists on contemporary college campuses.
Having zeroed in on the target phenomenon, I will offer an analysis of what I take to be some of its most important features. I will be particularly concerned with understanding cancel culture as a rational phenomenon: on the account that I offer in Part II, students who actively participate in cancel culture, or who attempt to cancel their fellow students, are often acting with impeccable rationality given their aims and preferences, even if their behavior is objectionable in other ways. In Part III, I turn to the most common considerations offered by the skeptics and argue that they are unconvincing. In the Conclusion, I note a number of factors that might lead us to systematically underestimate the severity of the problem.
Journal of Free Speech Law: "The Lost Cause of Free Speech," by Prof. Mary Anne Franks (Miami)
Just published as part of the "Non-Governmental Restrictions on Free Speech" symposium; here's the start of the Introduction (the article is here):
Contemporary free speech law and policy in the United States teems with contradictions that cannot be explained by any principled doctrine. The key to understanding the current legal and cultural landscape of free speech is not some enduring constitutional value or method of interpretation, but rather the ascendance of a very specific political ideology that is best described as neo-Confederate. Neo-Confederate ideology is a constellation of values that includes investment in racial hierarchy, attachment to traditional gender roles and gender conformity, idealization of the pre-Civil War South, belief that the U.S. is a Christian nation, and hostility to democracy. The neo-Confederate agenda renders coherent what otherwise appear to be chaotic free speech positions: the condemnation of "cancel culture" by promoters of censorship; the conflation of speech reactions with speech restrictions; the equation of the right to speak with the right to an audience; alternating invocations and dismissals of the state action doctrine. While these positions are malleable enough to occasionally serve progressive interests, they are most consistently and powerfully deployed to protect the interests of white male supremacy.
The neo-Confederate agenda is, as its name suggests, a partisan project. Though not all Republicans are neo-Confederates, virtually all neo-Confederates are Republican. While the attachment to Lost Cause mythology may be strongest in the South, its core tendencies—whitewashing the role of slavery in American history; selectively championing states' rights; and promoting racial, gender, and religious supremacy—have spilled over geographic borders.
The conservative reactionaries waging war against racial, gender, and religious equality have increasingly zeroed in on educational institutions as targets, often in the guise of fighting "critical race theory." In the first six weeks of 2022 alone, 103 bills were introduced in state legislatures across the nation that were aimed at restricting speech in schools and universities. These bills range from censoring what can be said about the role of racism and misogyny in shaping American institutions to forbidding "inappropriate" discussions of sexual orientation or gender identity. These provisions are vaguely and broadly worded in order to create maximum confusion and uncertainty about what speech is permitted. Many of these bills allow parents or other parties not only to demand removal of but also to sue over educational material they find personally objectionable, creating financial and social incentives for censorship. Republican officials and organizations have also issued executive orders, statements, book bans, and administrative guidelines attacking discussions of social justice and diversity. This anti-education movement vilifies teachers, administrators, librarians, and school-board members as "indoctrinators," "groomers," and "pedophiles," leading to harassment, doxing, threats, physical assaults, and firings….
Gun Carry Licenses, Self-Defense, and Sealing
From Montaquila v. Neronha, decided today by the Rhode Island Supreme Court, in an opinion by Justice Melissa Long:
On October 28, 2020, Providence police officers arrested Mr. Montaquila for misdemeanor simple assault after an incident involving his firearm at his place of business…. Eventually the government dismissed the charge against him.
On or after November 2, 2020, Mr. Montaquila applied to renew license No. 9012031, his concealed-carry license which was scheduled to expire on December 30, 2020. The application form questioned whether the applicant had "ever been arrested or charged for any offense[.]" Mr. Montaquila marked both the "yes" and "no" boxes and wrote "see letter attached."
In the undated letter attached to his application, Mr. Montaquila explained the incident as follows:
"[A] gentleman came into my business, which is a gas station and auto detailing facility[,] and became immediately combative and aggressive toward my staff because they would not perform certain work for free. He was clearly under the influence of drugs at the time. He began to throw items off the desk and act very threatening in my store.
"I came out of my office at my employees' request to mediate the situation. I told the gentleman he would have to leave the premises, and at that time he got very close to my face and shoved me away. At that point, I put my arms around his shoulders and walked him out the door. At no point did I strike, hit, or assault this person.
"The man then called the Providence Police, falsely reported that I assaulted him without reason, and I was arrested."
The Place Where Property Law Happens in New York City
By an amazing coincidence, a current property dispute is occurring at the site of a storied property law case.
Last month, the New York Times reported on a pitched adverse possession battle between two residential buildings on the Upper East Side of Manhattan.
On a coveted stretch of Fifth Avenue, steps away from Central Park, the shareholders of an Upper East Side cooperative are fighting for an unusual prize: the ownership of a grimy concrete ditch behind their luxury apartment building.
The roughly 350-square-foot plot is at the center of a lawsuit filed on Friday in New York State Supreme Court that pits the millionaire residents of 980 Fifth Avenue against the real estate mogul and former governor of New York, Eliot Spitzer, who owns an adjacent rental tower. . . .
In its lawsuit, the co-op board is arguing that it should be the rightful owner of the pit through a doctrine called adverse possession, in which a party can make a legal claim to a property after 10 continuous years of undisputed use. While the property is legally owned by Mr. Spitzer's neighboring rental building, 985 Fifth Avenue, the co-op claims that it has routinely and openly used the roughly six-foot-deep niche to store construction supplies and has never been asked to stop.
For those of us teaching Property to 1Ls, the timing of the story could not have been better, as adverse possession often makes an early appearance in the course. It also served as fresh evidence of how musty old legal doctrines can be quite relevant in contemporary property disputes (especially where, as here, the parties appear to be motivated by more than just property).
I did not notice it at the time, but the location of the dispute -- 79th and Fifth Avenue along Central Park -- was also the location of a famous property case that is a staple of the 1L survey course: Brokaw v. Fairchild.
Before this corner was occupied by residential towers, it was the site of the Brokaw mansion. This mansion, built in the late 19th century, was bequeathed to George Brokaw in life estate. George did not want to live there, however, and had a hard time finding someone willing to pay what he thought was a reasonable rent, so he wanted to tear down the mansion and build an apartment building. The only problem is that those who held future interests in the property (the "remaindermen," i.e. those who held contingent remainders) objected to these plans, leading to a lawsuit.
In the end, the courts rejected George's plans, holding that it would constitute "waste" for him to fundamentally change the nature of the property by tearing down the mansion and constructing an apartment building. Wrote the court, "such demolition would result in such an injury to the inheritance as under the authorities would constitute waste," even if (as George claimed) it would increase the value of the property.
The Brokaw mansion survived, and George lived there until his death in 1935. The mansion was eventually owned by Time magazine publisher Henry Luce, who was married to Clare Booth Luce (who had previously been married to George). Eventually, in 1964, the mansion was torn down and replaced with a residential tower -- a residential tower that, as luck would have it, is now at the center of the aforementioned adverse possession fight, presenting yet another opportunity for the corner of 79th and Fifth to find a place in Property Law casebooks.
"I Was Just Kidding!" Assertion Can't Justify Dismissal of Libel Case
Def Noodles v. Keemstar.
From Feitosa v. Keem, decided Tuesday by Judge William Skretny (W.D.N.Y.):
In this action, Plaintiff Dennis Feitosa alleges that Defendant Daniel Keem defamed him when he tweeted that "Def Noodles," Feitosa's YouTube persona, had been accused of grooming 12- to 15-year-old girls….
Keem also argues that the Tweet is protected by the First Amendment because it is not a factual assertion capable of being proven true. Rather, he argues, in light of the Twitter context, the Tweet is clearly a joke, an example of hyperbolic and rhetorical speech that no reader familiar with the Twitter genre would have taken as stating provable facts. Keem explains that within the insular influencer world both Feitosa and Keem inhabit, "comedians, entertainers, gamers, and influencers often post salacious and sometimes-controversial mocking content about each other and others with the hope of generating reactions among those who follow them."
In support of this proposition, he submits Tweets where Feitosa himself appears to accuse Keem of domestic abuse, and online statements where Feitosa explains that "everything [he does] is a joke." Keem argues that, given his Tweet's placement within a war of words between these two influencers, his Tweet could not reasonably have been understood as conveying a factual assertion….
Today in Supreme Court History: March 2, 2016
3/2/2016: Whole Woman's Health v. Hellerstedt argued.
On Universal Vacatur, the Supreme Court, and the D.C. Circuit
Thoughts on recent oral argument exchanges on whether the Administrative Procedure Act contemplates (let alone requires) universal vacatur.
Over at the Yale Journal on Regulation's Notice & Comment blog I have a post commenting on recent exchanges during Supreme Court oral arguments concerning whether the Administrative Procedure Act requires nationwide vacatur when a court concludes an agency action is unlawful, and whether (as the Chief Justice suggested) the D.C. Circuit routinely provides nationwide relief when vacating agency rules.
The post begins:
During oral argument in Department of Education v. Brown, the second case concerning the Biden Administration's student loan forgiveness plan, the question arose whether it is proper for a single district or circuit court to impose a nationwide injunction against a federal policy where doing so is not necessary to provide complete relief to the parties before the court. While federal courts are empowered to "hold unlawful and set aside" agency action, Solicitor General Elizabeth Prelogar has argued that this does not necessarily mean that a successful challenge to an agency action in a lower court can or should result in a nationwide or universal vacatur of the agency rule or action at issue.
This discussion at oral argument was a reprise of SG Prelogar's argument in United States v. Texas, in which she pressed the position that when a lower court holds an agency action to be unlawful, it need not (indeed, should not) impose a nationwide vacatur. Relying on the work of UVA law professor John Harrison (see also here), Prelogar argued that "The APA did not create a novel remedy of universal vacatur." I think Prelogar (and Harrison) are correct here, but this is anything but a consensus view.
Several justices disagreed quite strongly with Prelogar's argument, with those justices who served on (or had been nominated to) the U.S. Court of Appeals for the D.C. Circuit voicing the loudest objections. The Chief Justice in particular was incredulous.
[Y]our position on vacatur, that sounded to me to be fairly radical and inconsistent with, for example, you know, with those of us who were on the D.C. Circuit, you know, five times before breakfast, that's what you do in an APA case. And all of a sudden you're telling us that, no, you can't vacate it, you do something different. Are you overturning that whole established practice under the APA?
I think the Chief Justice is wrong here. Let me explain why.
You can read the rest of the post here.
A Textualist Defense of the Major Questions Doctrine
Critics claim the doctrine is obviously at odds with textualism. But that isn't the case.
Over the last few years, the once-relatively obscure "major questions doctrine" (MQD) has become increasingly controversial, as the Supreme Court has relied on it in several major cases, such as the eviction moratorium decision, the OSHA large-employer vaccine mandate case, and West Virginia v. EPA. If yesterday's oral argument is any indication, the Court may also use it to strike down the Biden Administration's massive loan forgiveness plan.
The doctrine requires Congress to "speak clearly when authorizing an [executive branch] agency to exercise powers of vast 'economic and political significance.'" If such a broad delegation of power isn't clear, courts must rule against the executive's claims that it has the authority in question. Critics often argue that this rule is at odds with textualism in statutory interpretation - a theory to which many conservative judges are committed. For example, in her forceful dissent in West Virginia v. EPA, Justice Elena Kagan complains that MQD has become "a get-out-of-text free card." If the otherwise-best interpretation of a given text is that it grants the executive sweeping powers, why should MQD overturn it?
But, contrary to popular belief, there is in fact a textualist justification for MQD. Most textualists hold that statutory language should be interpreted in accordance with its "ordinary meaning." And they also recognize that ordinary meaning varies based on context. The same words and phrases might have different meanings depending on the situation. For example, prominent textualist legal scholar and judge Frank Easterbrook rejects "[a]n unadorned 'plain meaning' approach to interpretation [that] supposes that words have meanings divorced from their contexts." Instead, he emphasizes that "[l]anguage is a process of communication that works only when authors and readers share a set of rules and meanings." And those "rules and meanings" depend on context. Indeed, "clarity depends on context."
Such contextual considerations can justify the major questions doctrine. In most situations, people expect greater clarity and precision when granting an agent broad power, than when authorizing something narrower. For example, my wife and I recently hired a contractor to repair the old and somewhat dilapidated deck attached to our house. Imagine we signed an agreement giving the contractor the authority to "modernize and improve" the deck, and he then proceeded to tear the whole thing down and replace it with a bigger and more modern structure.
As a semantic matter "divorced from context," the contractor could argue that tearing down and replacing the deck counts as modernization and improvement. Indeed, it might result in greater modernization and improvement than a more limited repair job would have! But most ordinary readers of the agreement would readily understand that the contractor had exceeded his authority. Tearing down and replacing the entire deck is a big, expensive step that requires clearer and more specific authorization than a vague mandate to "modernize and improve." By contrast, if the contractor had taken the much more limited step of replacing a few decaying floor boards, most people would agree his actions were properly authorized, even though the agreement doesn't specifically mention such replacement.
The same point applies to statutory language. If anything, most ordinary readers probably assume that vast grants of legal authority over millions of people require even more clarity and precision than do contractual agreements like the deck replacement. For example, in the loan forgiveness case, the Biden Administration relies on a vague provision of the HEROES Act that allows the executive branch to "waive or modify" regulations governing federal student loans to justify cancellation of over $400 billion in student loan debt. Even if semantics "divorced from context" suggests that mass cancellation qualifies as a type of waiver or modification, contextual ordinary meaning indicates that such an enormous delegation of power requires greater precision.
The above analysis doesn't refute all possible objections to MQD. It obviously won't persuade non-textualist critics of the doctrine. Nor does it address claims that broad delegations to executive agencies are desirable, so the latter can use their (supposedly) objective scientific expertise to solve new social problems as they come up - especially in a world where Congress is often gridlocked.
Similarly, the argument made in this post doesn't address the problem that it will sometimes be difficult to tell whether a given assertion of executive authority qualifies as "major" or not. Here, I will only say that such fuzziness at the margin is a characteristic of many legal doctrines. It may be unavoidable in many situations where courts must rely on balancing tests and standards, rather than bright-line rules.
My argument also doesn't necessarily prove that any particular use of MQD to strike down a policy was justified. While I think the Court got it right in the eviction moratorium and vaccine mandate rulings, and would be justified in using MQD again in student loan forgiveness cases, West Virginia v. EPA strikes me as a tougher case; Justice Kagan's dissent makes a strong argument that the text of that statute is clear enough to satisfy MQD requirements.
Finally, the textualist rationale for MQD doesn't preclude other justifications for it. For example, I and others have also argued that the doctrine helps enforce constitutional nondelegation limits on the transfer of legislative authority to the executive.
But, despite its limited nature, the point made here does rebut one widespread criticism of MQD. Far from being inconsistent with ordinary-meaning textualism, the doctrine actually helps implement it.
Zelenskiy on Why He Stayed in Kiev
Perhaps an insight on how many courageous actions actually come about.
I was watching "Year," a documentary by prominent Ukrainian journalist Dmytro Komarov about the first year since the full-on invasion of Ukraine (with English subitles); and I was struck by this exchange he had with President Volodymyr Zelenskiy.
Naturally, one always needs to be skeptical about such things: Zelenskiy is, after all, a politician, and a trained actor to boot, with a friendly interviewer and editor. But most significantly, he's a human being, and we humans are masters of spinning things, whatever our walk of life. Still, this had an air of the real, perhaps precisely because it wasn't particularly self-aggrandizing:
Komarov: Mr. President, on February 24, when there was an extraordinary atmosphere, when the [Russian] subversive and reconnaissance group was in Pechersk [in Kiev itself], did you think that the Russians could come in through those doors [pointing to the door of the President's office]? Did you think about what to do in such a situation?
The 2023 Scalia Lecture: Beyond Textualism?
On Monday, I delivered the 2023 Scalia Lecture at Harvard Law School. My title was "Beyond Textualism?" and I discussed "the reductio ad Bostock"; the role of substantive canons and the major questions doctrine; Erie, legal realism, and the common law; and the original meaning of the Privileges or Immunities Clause -- in roughly that order.
I hope to publish a version of this in due course, but in the meantime, you can watch it here (with a short introduction by Dean John Manning) if you are interested:
Today in Supreme Court History: March 1, 1880
3/1/1880: Strauder v. West Virginia decided.
Updated Model Motion to Suppress For Unlawful Internet Preservation
Hey, criminal defense lawyers, this is for you.
As regular readers know, I am very interested in how the Fourth Amendment applies to Internet preservation—the practice, applied to a vast number of Internet accounts every year, of the government having Internet providers run off copies of accounts without cause and holding the copes in case the government comes back with a warrant. As I explained in this 2021 article, I think there are significant Fourth Amendment limits on preservation that governments are currently ignoring.
But it's not just a theory; it's also a brief! Last year I posted a draft motion to suppress for criminal defense lawyers to file in preservation cases, and I recently updated the motion and have posted the updated versions here: .pdf draft motion to suppress (or, to download the word version to edit and file it, here: .docx draft motion to suppress). If you're a criminal defense attorney, know a criminal defense attorney, or live in the same state as a criminal defense attorney, please feel free to share the brief with the criminal defense lawyers you know.
As it happens, getting defense lawyers to file the brief has been a challenge. As I noted on Twitter a while back:
I wish the level of interest defense counsel had in filing my model motion to suppress for 2703(f) preservation were as high as the level of concern prosecutors have that defense counsel might file the model motion.
— Orin Kerr (@OrinKerr) January 21, 2023
Part of the problem is that the preservation process is largely hidden. Prosecutors don't normally disclose that preservation occurred. And when it's disclosed, the disclosure is usually subtle: It is referenced in the warrant materials in order to help the providers comply with the warrant, but the form itself is not provided. So prosecutors know the issue exists, but they don't disclose or highlight the fact of preservation; while defense lawyers don't know the issue exists, and they don't know that there's an important form they should be asking for but haven't received. And so preservation goes on and on without being challenged in court, even though there are (I think) very good arguments it is illegal and the arguments can be made easily by just filing the model brief.
As always, stay tuned.
Making Sense Of The Votes In Bittner v. United States
Why did Justices Kagan and Sotomayor, but not Justice Jackson, join Justice Barrett's dissent?
On Tuesday, the Supreme Court decided Bittner v. United States. The question presented was whether a "violation" under the Bank Secrecy Act is the failure to file an annual form (no matter the number of foreign accounts), or whether there is a separate violation for each individual account that was not properly reported. The majority held that the penalty can only be assessed once per-report. The dissent held that the penalty can be assessed for each account. Justice Gorsuch wrote the majority opinion, which was joined in full by Justice Jackson. Justice Gorsuch wrote a section on the rule of lenity, which only Justice Jackson signed onto. Chief Justice Roberts and Justices Alito and Kavanaugh joined the rest of the majority opinion. Justice Barrett wrote the dissent, which was joined by Justices Thomas, Sotomayor, and Kagan. Jon Adler already pointed out the unusual split. Here, I'll try to make sense of the votes.
As a threshold matter, the identity of the authoring Justices should not come as a surprise. Justice Gorsuch consistently reads federal statutes in a narrow way that inures to the benefit of defendants. His separate analysis about the rule of lenity, which only Justice Jackson joined, undergirds Gorsuch's approach to statutory construction. On the other hand, Justice Barrett seem to consistently disagree with Justice Gorsuch on how to read a statute. (I am reasonably confident she would have dissented in Bostock.) Jon pointed out how often they disagree. I am also not surprised that Justice Thomas joined Barrett. He seems to vote consistently with Barrett on criminal-law related cases.
The other votes require some more thinking. More often than not, Chief Justice Roberts and Justice Kavanaugh vote in lockstep. (Helix Energy Solutions Group, Inc. v. Hewitt was an outlier.) Perhaps they were persuaded by Justice Gorsuch's textualism. Or perhaps this join was a way to reduce the number of conservative 5-4 decisions for the term, and pad the heterodox splits. Those statistics do add up! What about Justice Alito? It is a very rare case indeed where he votes for a criminal defendant. I can only think of a handful. But Alito may have felt sympathetic to the defendant here who made a non-willful--that is a good-faith--error. Indeed, many accountants claimed they weren't even aware this filing requirement exists.
What do we make, then of the Court's three progressives? As a general rule, I presume they will vote in a bloc, unless there are strategic advantages to breaking up. I am willing to abandon this presumption if they consistently vote out of formation. But if last term is any indication, like the three musketeer, they are all for one and one for all! What then was the strategery in Bittner? Why would Justices Kagan and Sotomayor rule against the criminal law defendant in what is ostensibly an unfair ruling. Well, perhaps they, like Justice Thomas, were persuaded by South Bend's finest. Or, perhaps, they saw value in joining Justice Barrett in this case, as a way of signaling that they are reasonable free agents, and are not locked in a formation. Maybe the conference vote was 7-2, and Kagan and Sotomayor jumped ship after Barrett circulated her dissent. In the appropriate case, Sotomayor and Kagan can cash in on that credibility to bring Justice Barrett over to their side. (The student loan cases may fit the bill.) And as the cost of the join, Part III of Barrett's dissent flags an alternate way in which future defendants can prevail, notwithstanding the Court's ruling.
On the flipside, Justice Jackson had a free pass to form a majority, and the defendant would prevail. She was also able to give Justice Gorsuch a +1 for his rule of lenity section. In other cases, Justice Sotomayor has joined Gorsuch's dissentals when it affects a criminal justice issue. The three progressives did not need to vote as a bloc here--a five-member majority reached the right outcome--and they did not vote as a bloc.
Of course, I have no inside information, and you are free to disregard everything I write here. But when it comes to the Court's votes, I try to see patterns where none may exist.
Thoughts on Today's Supreme Court Student Loan Forgiveness Oral Arguments
The justices seem to be clearly leaning against the Biden Administration on the merits. The procedural issue of standing is a closer call, though ultimately more likely than not to come out the same way.
Today the Supreme Court heard oral arguments in Biden v. Nebraska and Department of Education v. Brown, two cases challenging the legality of the Biden Administration's plan to forgive over $400 billion in student debt, relying on the 2003 HEROES Act and the Covid-19 national emergency. The big issues in the two cases are whether the Administration has the power to grant loan forgiveness on such a vast scale, and whether the plaintiffs in the two cases (six state governments in one, two private parties that actually want the program to be broader in the other) have standing to challenge the program. I have previously gone over the substantive issues here and here, and standing here, here, and here.
While the outcome won't be known for weeks, perhaps not until June, today's oral arguments strongly suggest that all six conservative justices believe the loan forgiveness program is illegal, while the three liberals hold the opposite view. Things are less clear on the standing question. It is possible that Justice Amy Coney Barrett will join the three liberals in concluding that none of the plaintiffs have standing. But the other conservatives seem likely to rule that at least one (probably the state of Missouri) does have it.
Various conservative justices repeatedly signaled they have doubts that the HEROES Act authorizes the Biden plan, both because the power to "waive or modify" student loan conditions does not include large-scale cancellation of debt principal, and because many of the 40 million potential beneficiaries of the plan are not actually "in a worse position financially in relation to" their student loan obligations as a result of the Covid-19 pandemic, as the statute requires in order for the power to "waive or modify" to be authorized by the Covid national emergency declaration. In my view, the latter is the biggest legal weakness of the plan.
Chief Justice John Roberts cited evidence indicating that more than half of the potential beneficiaries do not believe they will have any trouble repaying their student loans. Of the remainder, many have issues unrelated to the impact of the pandemic. While Solicitor General Elizabeth Prelogar rightly pointed out that the statute does not require "case-by-case" assessment of each individual, such massive overreach - covering tens of millions of people and hundreds of billions of dollars - seems obviously beyond what the statute authorizes.
The conservative justices - and at least one liberal - also signaled they believe the "major questions doctrine" - which requires Congress to "speak clearly when authorizing an [executive branch] agency to exercise powers of vast economic and political significance" - is applicable here. Justice Sotomayor (who was sympathetic to the government on almost every other point), rightly pointed out that "the amount at issue, the Chief [Justice] mentioned the quarter [of] a trillion dollars or the half a trillion dollars… seems to favor the argument that this is a major question."
None of the justices seemed sympathetic to Prelogar's argument that the major questions doctrine applies only to regulations, but not to federal benefits. Chief Justice Roberts noted that this ignores the fact that the purpose of doctrine is to protect separation of powers across the board. Justice Alito commented that "drawing a distinction between benefits programs and other programs seems to presume that when it comes to the administration of benefits programs, a trillion dollars here, a trillion dollars there, it doesn't really make that much difference to Congress."
The Court need not resort to the major questions doctrine to rule against the administration. It could just make that decision based on the text of the HEROES Act. But the doctrine raises the burden of proof the administration must meet. If the loan forgiveness policy qualifies as resolving a "major question" (and the immense size of the expenditure suggests that it does!) the government must not only show that the statute authorizes the policy, but that it does so "clearly." If the Court concludes the statute is ambiguous, the federal government will lose.
From early on, I have thought that the Biden Administration's best chance to save this policy is by winning on standing. Today's arguments confirm that.
The plaintiffs in the two cases advance various theories of standing. But by far the strongest is that of the state of Missouri, based on the fact that Missouri has a state agency called the Higher Education Loan Authority of the State of Missouri (MOHELA), which services many federally backed student loans and stands to lose money if some of those loans are forgiven.
Interestingly, Prelogar today conceded that MOHELA would have standing if it brought the case itself! But she argues that the state of Missouri lacks standing to bring a case on MOHELA's behalf, because the latter has an independent corporate status, and has the legal right to sue and be sued. In my view, this overlooks the reality that MOHELA is a state agency fulfilling public functions, that it is owned by the state, and thus any financial losses suffered by MOHELA are also suffered by Missouri. The fact that there is some administrative separation between MOHELA and other state agencies is irrelevant.
Nonetheless, the three liberal justices seemed to buy this argument. Conservative Amy Coney Barrett may also agree with it. She repeatedly pressed this issue today. At one point, she asked Nebraska Solicitor General Jim Campbell "[i]f MOHELA is an arm of the state, why didn't you just strong-arm MOHELA and say you've got to pursue this suit?" It's a reasonable question, and Campbell didn't deal with it well, saying that it's "a question of state politics."
A better response is that, while the state attorney general may not have the power to order MOHELA to file a lawsuit, that does not change the fact that MOHELA is owned by Missouri, and therefore that financial losses to MOHELA are also losses to the state. The state government can limit the power of one state agency (the AG's office) to control another (MOHELA). But that doesn't change the fact that the state ultimately owns and controls both. While the AG may not have the authority to issue orders to MOHELA, he does have the power to bring lawsuits on behalf of the state as a whole, to advance any of the state's interests - including those involving the assets of administratively independent state agencies.
It is not entirely clear which way Justice Barrett will go on this issue. While she posed probing standing questions to Campbell, she also at one point suggested that Missouri may get standing simply on the basis that it owns MOHELA.
The other five conservative justices said little about Missouri's standing. If they were inclined to rule against the plaintiffs on this basis, I would expect them to push the issue much more.
Some of the conservatives also seem open to other arguments for standing advanced by the plaintiff states, such as more indirect financial losses they might suffer. Justice Neil Gorsuch noted that a majority of the Court had granted state standing in Department of Commerce v. New York, the 2019 case challenging the legality of the Trump Administration's plans for the 2020 census, on the basis that "undercounting the state's population "would have potential effects to the State of New York in the term -- in terms of the benefits it might later receive, that kind of knock-on effect was sufficient to constitute standing in that case." In addition, if a majority of justices thought that no plaintiff has standing, they would probably not have left in place the lower court injunctions blocking implementation of the loan forgiveness plan.
For all these reasons, I think at least five conservative justices will ultimately conclude that at least one plaintiff in Biden v. Nebraska (probably Missouri) does have standing. If so, they are likely to rule against the program on the merits. But I admit there is much more uncertainty on this issue than on the merits.
As I have pointed out before, the Biden Administration and its supporters have - in this case - been pushing ultra-narrow theories of standing traditionally associated with the political right. Those theories were wrong when advanced by conservatives, and are still wrong today.
While there may be a majority for granting standing in Biden v. Nebraska, the oral argument suggests there probably isn't one in Department of Education v. Brown, the somewhat screwy case brought by the conservative Job Creators Network on behalf of two plaintiffs who complain that the Biden program isn't generous enough, excluding one of them completely and forgiving less of the other's debt than might have otherwise been the case. They argue they have standing because administration adopted the plan without going through the "notice and comment" procedure arguably required by the Administrative Procedure Act, which would have given them an opportunity to argue that the program should have been more generous to them.
In the oral argument, the Brown plaintiffs' counsel argued that, if the court rules that the current loan forgiveness plan is illegal, the Biden Administration might go back to the drawing board and draft a new - hopefully more generous! - plan under the Higher Education Act of 1965. In the process, there would be a notice and comment procedure, where his clients would have their say. Ironically, the Higher Education Act has been cited as a possible alternative justification for the current Biden plan by some of the administration's supporters in the litigation (I criticized that theory here).
Both liberal and conservative justices criticized this theory of standing as too uncertain and convoluted. Among other things, it is far from clear that defeat in this case really will lead the administration to try again, using the Higher Education Act. They could just decide to accept defeat and go home.
I myself think that the Brown plaintiffs do deserve standing. But that's largely because I think current standing doctrine is far too restrictive, and should be largely abolished. At the very least, taxpayers should have a general right to challenge potentially illegal government expenditures. But it's highly unlikely the Supreme Court will endorse such radical (though correct!) notions anytime soon. Under current Supreme Court precedent, the Brown plaintiffs' face a very uphill battle, though they did prevail in the lower court.
But even if the Brown plaintiffs lose on standing, it will not make much difference to the fate of loan forgiveness program, so long as the plaintiffs in the other case win on that issue - and also prevail on the merits. That still strikes me as the most likely outcome.
