Justice (Chief Judge?) LaSalle

Over the past couple of weeks there have been a large number of articles and letters, in the New York Law Journal and elsewhere, dealing with the controversy over Governor Hochul’s nomination of Justice Hector LaSalle, now the PJ for the Second Department, to be the Chief Judge of the Court of Appeals and therefore over the entire New York State court system. The thrust of the debate has been over subjects such as is he sufficiently progressive, or is he in reality a conservative and perhaps even an outright reactionary; does he have sufficient administrative credentials (huh? he’s the PJ of the largest Appellate Division!); what is the role of the State Senate in the confirmation process; and can the State Senate use its committee and procedural rules to deny Justice LaSalle a confirmation vote, when the New York Constitution, like the federal Constitution, that the Governor nominates and the Senate confirms, or not. My fellow officers at NYCLA have written on this subject in the NYLJ [Deriding LaSalle as a Conservative Is ‘Nonsense’Attacks on the Nomination of Justice LaSalle for the Court of Appeals Threaten Judicial Independence], arguing that the process and arguments surrounding Justice LaSalle’s nomination make the process so political that it threatens judicial independence by creating a baseline of expectations as to what certain Democratic State Senators want in terms of judicial rulings, and I agree with my NYCLA colleagues wholeheartedly.

I find Justice LaSalle’s participation on three panels issuing certain memorandum decisions, out of literally thousands of such decisions over the years, as indicative of conservative judicial leanings to be almost farcical. The use of memorandum decisions to expedite and simplify appellate rulings is problematic, because the absence of facts and reasoning makes them subject to question and provides insufficient guidance as to the exact nature of what the ruling actually was. But they can’t be read as indicating that Justice LaSalle is too conservative to serve.

The State Senate also clearly has a role in confirmation, as do the State Senate’s rules. The United States Senate has to confirm justices on the Supreme Court of the United States too, and that process appropriately includes application of chamber rules as well as the more substantive subject of ideology. But the rules of the State Senate shouldn’t be used to deny a confirmation hearing here, any more than Senator McConnell should have been allowed to manipulate the rules of the United States Senate to deny Merrick Garland a hearing and a vote for an entire year back in 2016. Ideology is also plainly relevant in broad terms. Nobody would want an avowed segregationist to serve as a judge on any court. But what the progressive wings in the State Senate seem to want here is as rigid an ideological test as the Federalist Society utilized in the Trump Administration when all Supreme Court nominees came off a pre-approved list created by Leonard Leo and his colleagues at the Society designed to ensure ideological purity in a strict rightward direction.

And that, at its heart, is my objection to what is going on in Albany right now. The “progressive” Democrats who are trying to derail Justice LaSalle’s nomination are using the very same tactics that have given the Republicans complete control over the Supreme Court of the United States. I can’t support those tactics when engaged in by either side. One might say that New York is only adopting the same tactics to try to counteract the successful efforts by the Republicans to politicize the Supreme Court (as if there were comparability between the Supreme Court of the United States and the Court of Appeals of the State of New York, as important as the Court of Appeals may be). In other words, what’s good for the goose is good for the gander. An eye for an eye. But there is another expression that I think should be kept in mind, which is that when you take an eye for an eye the whole world goes blind. I didn’t want the Supreme Court of the United States, and its nomination process, to sink to the levels we have seen, and I don’t want to see New York sinking to that level either.

Richard P. Swanson
Vice President, NYCLA

The views expressed here are my own, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.

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WHAT A SURPRISE — CORRUPTION IN THE SELECTION OF SUPREME COURT JUSTICES

‘Twas the week before Christmas, when all through the House, many creatures were stirring, making criminal referrals of former presidents and fighting over the federal budget which we all know has to pass. In the middle of this activity, just when you thought it couldn’t become more bizarre, Politico is reporting that Kellyanne Conway sold her political consulting and polling firm to Leonard Leo of the Federalist Society while serving influentially within the Trump White House on key judicial appointments, including Supreme Court justices. Huh? Say what? Isn’t this close to an outright bribe? Already too much Republican judicial selection has been outsourced to the Federalist Society. They didn’t need to pay for access. They already had it.

The transaction, as described by Politico, appears to have been designed to conceal. A Leo-controlled dark money fundraising company made a loan to another Leo-controlled company that made the purchase from Conway. Politico reporters uncovered this through what seems to have been a simple UCC search. Who knows how active husband George was in the deal. Before he became famous as a never-Trumper he was an active member of the Federalist Society. It’s hard to believe they needed the money, given what Wachtell Lipton partners are known to make.

Is this what our judicial selection process has become? Maybe we shouldn’t be surprised given all the ethical challenges that the Trumpists have posed. It’s as if the Ethics in Government Act was never passed, let alone the Emoluments Clause in the Constitution. Remedies for blatant violations were never pursued. In the world of government we defined deviancy down, to use a phrase from Sen. Daniel Patrick Moynihan, who would rotisserie in his grave if he saw what goes on today.

Not to worry, says a former Scalia clerk. Plenty of other people were involved, including Don McGahn. Sorry, but I am still shocked that Leonard Leo would pay off a key presidential aide.

And the Republican justices complain about how their institution’s reputation is being undermined? Don’t they look around themselves and think? To quote Shakespeare, the fault, dear Brutus, lies not in our stars but in ourselves.

A pox on all your Houses, of Representatives and White, and on the Senate and the Supreme Court too. Shame on you all.

Happy Holidays! There will be more to consider come January 3 but everyone enjoy their friends and family and stay healthy and safe in the meantime.

Richard P. Swanson
Vice President, NYCLA

The views expressed here are my own, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.

Website Design and Discrimination

This Supreme Court constantly amazes me. Yesterday’s oral argument in the “same sex marriage website design” case referred to compelled expressive conduct on the part of the website designer but there was barely a peep about discrimination.  The case concerns a woman who designs wedding websites, and she objects to doing that for same-sex couples on religious freedom grounds.  This was, she argued, compelled speech violating her First Amendment rights.

No doubt there is some force to that argument, but Justice Kavanaugh’s analogy to commercial jewelry sales which he seemed to be saying lacked expressive content is also arguably misplaced.  Isn’t a jeweler who sells wedding rings to a same sex couple implicitly endorsing the relationship in a similar way to the website designer?  Why can one refuse to deal but not the other?

But the analogy that strikes me as more apt is discrimination.  If the website designer was refusing to work for Black couples, is there any doubt we’d find a violation of the Civil Rights Act of 1964?  There was barely a peep at the argument about this analogy, and what peeping there was focused on anti-miscegenation statutes from the days of Jim Crow.  What if the website designer asserted that her religion compelled her not to support Black marriage or Black rights (let alone, God forbid, racial inter-marriage)?  Don’t say it couldn’t happen.  Race discrimination and segregation were behind the great Baptist split, into the American Baptist and Southern Baptist conventions years ago, and we still deal with the consequences of that split today in the sense that right-wing evangelicalism has some of its roots in that division.  Why does the First amendment/religious freedom argument sound better when applied to same-sex marriage than to racial discrimination?  And why wasn’t there more focus on the discrimination analogy than there was on the compelled speech point?

Just askin.’                

Richard P. Swanson

                                                                                          Vice President, NYCLA

The views expressed here are my own, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.

“SOUND AND FURY . . . “: THE SUPREME COURT THROWS UP IT’S HANDS ON ATTORNEY-CLIENT PRIVILEGE

                                                                                                            By:  Ronald C. Minkoff

            After months of briefing by the parties, more than a dozen amicus submissions, and an extended oral argument two weeks ago, the U.S. Supreme Court yesterday suddenly dismissed the appeal in In re Grand Jury on the ground that certiorari was improvidently granted.   This appeal, described by many bloggers as the most significant attorney-client privilege case before the Court in many years, turned out to be, in the Justices’ eyes, “sound and fury, signifying nothing.”  Macbeth, Act V, Scene 5, lines 16-27.

            How did this happen?  All the pieces for a blockbuster decision were in place.  The parties dispute whether a law firm must produce documents concerning (1) “the procedural aspects” of preparing a client’s tax return, and (2) advice as to completing the return, either by a lawyer or an accountant – classic scenarios raising the question of whether the documents contained legal advice (the attorney-client privilege would apply) or business advice (the privilege would not apply).  See Government’s Brief at 4 (citing District Court).  The issue was important:  the Government wanted the privilege interpreted narrowly so it could better investigate possible criminal activity, while businesses wanted the privilege interpreted more broadly so as to cover these so-called “dual purpose communications”.  The issue had wide application, as it affected the ability of businesspeople and their lawyers to predict whether the privilege would apply to their communications in transactional settings.  On top of this, there was a split among the Circuits: the Ninth Circuit, in ordering production, applied the “primary purpose” test – i.e,, that the privilege applies only if the “primary purpose” of the communication was providing legal advice — while the law firm sought to apply the broader “substantial purpose” test espoused by the D.C. Circuit.

            But as soon as the oral argument began, the hope of a significant, clear ruling started to crumble.  Prodded by the Justices, the lawyers on both sides abandoned their original positions.  The law firm, noting the difficulty of establishing whether the legal purpose of a given dual purpose communication could be considered “substantial”, much less “principal”, began arguing for an even broader interpretation of the privilege, where all the proponent had to show was a “bona fide legal purpose.”  Oral Arg. Tr. at 28.  The Government, meanwhile, appeared (at least to some of the Justices) to retreat from, the “primary purpose” test to contend that a communication with a “substantial” legal purpose would be privileged – as long as the legal purpose was really, really substantial (even if not primary).  Id. at 50-51. 

            These verbal gymnastics left the Justices spinning.   Justice Kagan pointed out that the majority of courts have been using the “primary purpose” test for years, and “there’s no particular evidence of confusion, nor is there any particular evidence” that attorney-client communications are being chilled.  Id. at 18.  Justice Sotomayor worried that departing from the majority test would risk putting the federal courts at odds with state courts, who also use the “principal purpose” test, with the ability to assert the privilege riding on the forum where the case was brought.  Id. at 15-16.  Many of the Justices scratched their heads at trying to determine what percentage of the communication had to be legal – 51%? 49%? 40%? – for the “principal purpose” test to apply.  Id. at 12 (Justice Jackson: if 90% of the document is a factual recitation and only 10% is legal, is it privileged?); Id. at 29 (Justice Sotomayor: “Is it 51 percent versus 49 percent or the 50/50 situation” where privilege will apply?); Id. at 28 (Justice Alito:  “Significance concerns importance. Maybe it’s a lot lower perhaps than primary, but it does involve a . . . certain quantum of importance”).  Chief Justice Roberts bemoaned “I think we’re talking about labels rather than analysis”.  Justice Kagan perhaps best summed up the Court’s conundrum by asking one of the lawyers to “comment on, you know, the ancient legal principle, if it ain’t broke, don’t fix it.” Id. at 33.

            That, apparently, is where the Court ended up.  The “primary purpose” test is basically working; any other test would be too broad, too narrow or at least equally confusing; and solidifying any test might remove the flexibility trial judges need to make privilege determinations regarding complicated, dual purpose documents.  So, in the end, the Court retreated, leaving things as they are:  doctrinally confused, but providing sufficient guidance for judges to do their work.

            One more comment.  The case did contain another, even more difficult issue:  if lawyers and accountants are giving essentially the same advice, why is one privileged and the other not?  And how, in the area of tax law and tax reporting, can we draw lines about what accountants and lawyers can and cannot do?  But though some of the Justice alluded to this concern, neither they nor the parties wanted to address it.  The question of whether non-lawyers, like accountants, can provide what is essentially legal advice without being admitted to the Bar will – like the standard for evaluating dual purpose communications – remain for another day.

The views expressed here are those of the author, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.

Moore v. Harper Oral Argument

In my last blog post on this case I promised a follow-up on the oral argument on this important, and dangerous, “independent state legislature theory” case. From the questioning it is apparent that Justices Thomas, Alito and Gorsuch are all-in on this cockamamie theory that puts democracy at risk without any support in the language of the Elections Clause, as a textualist ought to require, and without any sound evidence of historical intent, as an originalist ought to require. These purported textualists and originalists are willing to follow their Republican and Federalist Society bosses to permit Republican controlled state legislatures to gerrymander themselves into power as they see fit. Sorry to be so blunt but that is the reality.

Justice Kagan, on the other side, plainly recognizes the risks to democracy, which as my last blog post indicated includes gerrymandering but goes well beyond it. Presumably Justices Sotomayor and Jackson will agree with her. (There are no liberal men on the Supreme Court anymore.)

The views of Chief Justice Roberts and Justices Kavanaugh and Barrett are less clear. Each of them seems to recognize the significance of the case and each seems to be inclined to find a middle way, but given the ridiculous nature of what the petitioners seek to accomplish what that middle ground might be is hard to discern. Certainly the petitioners didn’t push for a drive down the middle of the road, and almost none of the many amicus briefs did either. Those briefs, including the one NYCLA participated in, mostly screamed “don’t do it!” Justice Roberts certainly recognizes the disruptive impact the decision could have if state legislatures are permitted to engage in a large range of anti-democratic behaviors that are not subject to judicial review, as the independent state legislature theory posits. Justice Kavanaugh does too, and he may prove to be the swing vote. As Professor Akhil Amar stated at the time of his confirmation hearing, when the teenage sex assault allegations were being raised, Brett Kavanaugh is the best possible justice who could ever be nominated for the Supreme Court during a Trump Administration.

The views of Amy Coney Barrett are even harder to ascertain. She has done what she was appointed to do, which was to overrule Roe v. Wade, and now that her primary task has been accomplished how she evolves as a justice will be interesting to watch. Her conservative and Catholic credentials will affect her judging, but she is a serious scholar even if I may disagree with many of her views.

I expected to be in complete despair after the argument and it wasn’t actually as bad as I feared. But if the line-up is as I’ve indicated, it’s making me ask who was the fourth vote to grant certiorari? It takes four justices to take a case, but five to decide it. If three justices may be waffling, and if the importance of the case to democracy was apparent when certiorari was granted, which it was, then who joined with Thomas, Alito and Gorsuch to grant certiorari?

While the argument was not as bad as I feared, this is still a very dangerous case for democracy.

And, seeking a middle of the road approach in the Supreme Court as an exit or off-ramp (if you’ll forgive the mangled metaphor), when nobody advocated for any such approach at the Supreme Court or below, is not an ideal way to litigate important constitutional principles. You’re supposed to test those principles before they get to the highest court in the land. Perhaps the best way out would be for the Court to DIG the case, i.e., Dismiss it as having Improvidently been Granted review.

Richard P. Swanson
Vice President, NYCLA

The views expressed here are my own, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.

Moore v. Harper To Be Argued Next Week–What is at Stake?

Perhaps the most important case of this year’s Supreme Court term is scheduled to be argued on Wednesday December 7 (Pearl Harbor Day!).  The case may be an attack on democracy, but it’s not a sneak attack.  Everything is out there for the world to see.  The case concerns partisan gerrymandering and what the judiciary can do about it.  The dangerous part of the case is the so-called Independent State Legislature Theory, or to cognoscenti, the “ISLT”, which given our nation’s current political environment could be a serious threat to democratic norms.  How did the case arise and what is at stake?

The case concerns North Carolina’s severe gerrymandering of its congressional redistricting after the last census.  The evidence offered in the state courts below, which was never seriously disputed, showed that the Republican-drafted election map was a radical statistical outlier, favoring Republicans over Democrats compared to 99.9999% of all possible maps.  That’s not a typo.  The evidence also showed that even if Democrats received 50% of total votes for their congressional candidates, the map guaranteed they could not elect more than 4 out of 14 representatives.  

Naturally litigation ensued.  Because the Supreme Court decided in 2019 in the Rucho case that gerrymandering was a political question, the federal courts could not intervene, so the litigation was brought in the North Carolina state courts.  (Parenthetically, it was in part because of Rucho that Chief Justice Roberts was able so successfully to keep the Supreme Court out of all the litigation that ensued in the wake of the 2020 presidential election, all of which ended up in the attempted coup on January 6, 2021, and Chief Justice Roberts’ ability to keep the Court out of that litigation while the country guided itself to a successful, if not uneventful, transition of power, was most definitely an achievement of his.) 

In the first round of state court litigation, the North Carolina Supreme Court found there to be an unconstitutional gerrymander under the state’s constitution, and it ordered the state legislature to re-draw the map.  The state legislature unsurprisingly was recalcitrant and adopted another gerrymandered map.  On round two the state Supreme Court ordered a special master to re-draw the map.  The state took an appeal to the Supreme Court of the United States, arguing that it was unconstitutional under the federal Constitution for the state Supreme Court to intervene in this fashion.  The state’s theory is that under the federal Constitution’s Election Clause, only the state legislature could act and the state’s judiciary had no power to act.

The purported basis for this theory is that under the so-called Elections Clause the state legislature has the sole and unreviewable power to set election rules.  Article I, Section 4 does provide that “the Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof.”  But from a provision that allows state legislatures to pass statutes setting forth polling hours and the like, the petitioners want to make a giant leap that this language by itself means that ONLY the legislature can prescribe election rules, including gerrymandering to their heart’s delight and all manner of other pernicious election-related activity of which we’ve seen far too much in the recent past.  Does this language really bar judicial review?  Whatever happened to Marbury v. Madison and its many state equivalents?  The power grab is staggering.  Yet it is what the so-called Independent State Legislature Theory posits.

The modern incarnation of the theory has its roots in Bush v. Gore, which itself is a genealogy that should raise questions.  In appointing the President…that is what the Court did, let’s be clear about that, and in my opinion it was the start of much of the public’s current loss of confidence in the Court…Chief Justice Rehnquist referred to the theory in arguing that the Florida state court’s order that the ballots be counted ran past the state law deadline for certifying the election results.  He seemed to be saying that one reason to stop the counting was that continued counting was in violation of state law.  But wasn’t that for the Florida Supreme Court to determine?  And how do you make the leap from saying the timing of the count is taking too long to the argument that a state legislature can do whatever it wants free from any judicial review whatsoever?  (Also, what happened to the Court’s own admonition that you should never ever cite Bush v. Gore again?)

The first and easiest way around this argument in the Moore v. Harper case is that North Carolina election law does provide for judicial review of election law determinations.  Thus, the North Carolina legislature passed a statute governing the time, place and manner of elections that expressly allows for judicial review.  Isn’t that part of the “Manner” of the conduct of elections that the state legislature authorized?  Why shouldn’t that be the end of the story?  

But the Supreme Court (of the United States, not North Carolina) didn’t grant certiorari to come to that simple and banal result.  Rather, the ideologues in the conservative wing I believe intend to drive this case to a different and much more dangerous outcome.  I believe that Chief Justice Roberts will try to avoid a broad ruling along the lines sought by the state, because he certainly understands the implications, but we know he has lost control of his Court.  He’ll have to convince at least one of his conservative colleagues to go along with a narrow ruling.

Consider the potential consequences if Chief Justice Roberts is unsuccessful and the Supreme Court adopts an extreme version of the Independent State Legislature Theory, ruling that state legislatures can do whatever they want without judicial review.  First, in the case of gerrymandering, it will be “Katy bar the door.”  If the Supreme Court won’t allow federal courts to get involved, which is the thrust of Rucho, and there are no state court limits on legislative power, the most egregious acts of gerrymandering will become even more common.  

In our very own state of New York, for example, the Court of Appeals recently turned away an almost equally gerrymandered map favoring the Democrats (also at the 99.9999% level of significance).  They did so after the Democrats, in full control of the state legislature with a veto-proof super-majority, pushed through a state constitutional amendment to create a state commission to deal with extreme gerrymandering, which some other states have also done (for example, Ohio) to try to deal with this problem.  The Democrats in Albany then arrogantly ignored their own action, pushed out an extreme gerrymandered map and basically gave the finger to the courts and themselves, over-confident in their ability to prevail.  It didn’t help that one of their proposed districts was so non-contiguous that it occupied opposite shores on Long Island Sound.  Chief Judge Janet DeFiore and her colleagues said no dice, and restored the commission’s map.  The logic of their decision was that the state legislature couldn’t ignore the state constitutional amendment that they themselves had sponsored, so the commission’s map had to prevail.  It would be hard for anyone to defend the propriety of the state legislature’s acts under the circumstances and the Court of Appeals’ decision in my opinion was a clear victory for the rule of law.  The election proceeded on the basis of the map endorsed by the Court of Appeals and the Democrats lost four congressional seats to the Republicans that likely would have been kept if the state legislature had gotten its way.  Those four seats alone were a major part of the swing from Democratic to Republican control of the House of Representatives.  While those on the left interested only in political power have decried the result, all that the Court of Appeals really said was “you can’t pass a statute, or, worse, a constitutional amendment, and then utterly ignore it, and expect the judiciary not to have something to say about it.”  And yet, if Moore v. Harper’s version of the Independent State Legislature Theory becomes the law the proceedings before the New York Court of Appeals arguably would have been unconstitutional under the federal Constitution.  Assemblyman Michael Gianaris from Queens might be happy with that outcome given his bitter complaints about the Court of Appeals, but what is good for the goose is good for the gander and he would have to accept results such as that in North Carolina as a consequence.  In the longer term, in my opinion we are better off with an active judiciary who can enforce the rule of law and police such blatant misbehavior.

But the consequences won’t be limited only to gerrymandering, bad as that alone may be.  Right now in Arizona and elsewhere we have election boards refusing to certify results.  What happens if a state legislature directs an election board or a secretary of state not to certify a result?  What happens if a state legislature refuses to permit presidential electors to be designated consistent with the state popular vote and selects other electors instead?  That was what was behind all the efforts to “stop the count” on January 6, 2021.  Would judicial review of that determination be prohibited as well?  We can’t say that won’t happen.  It already has.

Indeed, that is one of the reasons I am skeptical about the proposed Electoral Count Act amendments currently working their way through Congress. The purpose of the amendments is to make the counting of electoral votes more mechanical in Congress, and supporters say that is designed to prevent objections like we had on January 6 in Congress while an attempted coup was materializing outside.  That objective is worthy, but if a state legislature supplants the popular vote, and relies on the Independent State Legislature Theory to do that, I worry that the effect of the Electoral Count Act amendments will be to require Congress to count a rogue state legislature’s designated electors selected in such a fashion, without any form of judicial review available to stop it.  The fact that Mitch McConnell supports the amendments only increases my concerns.  He is a brilliant strategist, and may be foreseeing precisely such an outcome.

Any one of a variety of other pernicious acts by rogue state legislatures can be conjured up if the Independent State Legislature Theory is adopted.  None of them promotes democracy.

The petitioner’s brief also shows the challenges involved in trying to utilize an “originalist” approach to constitutional interpretation.  The petitioners claim that there was a subtle change in the wording of the Elections Clause during the 1787 constitutional convention which was substantive to the point of being outcome-determinative here.  They argue that one draft of the clause referred to the state, and a later draft, after referral to the convention’s Committee on Detail, referred specifically to the legislature of each state.  They say this was the result of an effort by Charles Pinckney of South Carolina to ensure that the state legislature would have this sole authority.  They call it the “Pinckney Plan.”  But this is nonsense.  The materials the petitioners rely upon were part of efforts made in 1819 and then again in 1836, by John Quincy Adams and Jonathan Elliot, respectively, to assemble as best they could the materials that were actually prepared and submitted and debated at the convention.  What Pinckney submitted to Adams as “evidence” in 1819 actually had a watermark showing it was written on paper manufactured in 1797, not 1787, and there is a letter from Pinckney confirming that his record-keeping was incomplete and this was his best effort to re-construct what he had actually written and submitted.  Pinckney wasn’t trying to mislead or hide anything; he just didn’t have a complete record.  Other than this attempted recreation of “evidence” long after the fact, there is no, repeat no, evidence that a so-called “Pinckney Plan” along the lines urged by the petitioners ever existed.  Elliott didn’t know any of this when he did his 1836 compilation, and the petitioners today, 186 years later, simply accepted the Elliott compilation without question, and ascribing more significance to the slight wording change than it probably warrants in any event.  This is the kind of thing that gets historians Ph.Ds. and book awards, but if we can debate these things over and over as historians do then how can you uncritically trust any supposed “originalist” point of view?  I’ll go so far as to say that what the petitioners have done here borders on misrepresentation.  Even if they wrote their brief in good faith, the potential pitfalls of originalism are well demonstrated.  Anyone who wants a more detailed demonstration of these facts about the supposed Pinckney Plan is referred to the excellent amicus brief filed by the law professor brothers Amar, of Yale and Illinois, which is written in a refreshingly easy to read style, and the excellent recent article written by Gregory Diskant of Patterson Belknap in the New York Law Journal.  The fact is that there is a fundamental lie embedded in the “originalism” theory, which is that we can actually know objectively and conclusively the full and undebatable historical “truth.”       

The danger which Moore presents to our democracy, and the extremism it represents, is shown by some of the people who have lined up against the state’s position.  Retired Judge Michael Luttig has put in an amicus brief; he is more often associated with Republican positions, although he has come out against some of the most outlandish 2020 election claims.  Also on an amicus brief in opposition to the state is Steven Calabresi, a law professor who usually swings red; he is a nephew but most definitely not an intellectual ally of Judge Guido Calabresi of Yale and the Second Circuit.  Also filing an amicus against the state is the Society of State Supreme Court Chief Justices.  NYCLA, I should say, also joined an amicus brief taking the same positions.

Why has this become a politicized red-blue issue?  Didn’t New York do the same thing but in a blue direction?  Don’t both sides like having the ability to gerrymander?  The answer I think lies in the fact that the Republicans have been far more disciplined about redistricting after not only the 2020 census but 2010 as well.  They have also been far more disciplined about putting in place secretaries of state and other more local state election officials who can mold these rules in their desired direction.  We are seeing that in real time in Arizona right now (although in general the 2022 midterms proceeded more smoothly than some had feared).  The Democrats lack the same degree of discipline.  As Will Rogers once said, “I don’t belong to an organized political party.  I’m a Democrat.”  As a result Republicans perceive they have more to gain from the ability to mold and manipulate election rules.  One also can’t discount the willingness of far too many Republicans to tell lies about elections, seemingly without any consequence, and with the associated willingness to bend rules to fit their own narrative and interests.  And, one can’t discount the ever-present issue of race.  The Supreme Court has substantially gutted the Voting Rights Act, once a crowning achievement of the civil rights era,  and with that gone Republicans are moving on to the next place where they can make elections more favorable to their party which is gerrymandering in a way that corresponds in part to race and racial preferences in politics.  Sorry, folks, but that’s the way I see it.          

Richard P. Swanson

                                                                                          Vice President, NYCLA

The views expressed here are my own, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.

The Collapse of FTX

The collapse of FTX shows how important legal rules and regulations are to the safety of our economic system.  Crypto has been held out to the world as a libertarian dream of free markets bypassing government and law.  Now we see what can happen in their absence.

In the world of securities law, in which I have practiced for more than 40 years now, there are detailed rules on things like net capital, hypothecating and commingling of customer accounts and assets, avoidance of conflicts like FTX apparently had with its affiliated adviser and trading firm Alameda and other similar matters.  Many of these rules can be mind-numbingly complex, but in the case of FTX the failure to follow them produced a run on the bank (banking law matters too).  FTX’s position of course was that crypto was neither a security nor legal tender so neither securities nor banking law applied.

The world of crypto is a bizarre libertarian fantasy land.  It is too volatile to serve as a currency or a store of value and too divorced from the real economy of jobs and production of goods and services to serve the functions its advocates have argued it should be providing.  And, no government or central bank will easily give up the power over the fisc or the (proverbial) mint, including the power to implement monetary and fiscal policy which the advocates of crypto don’t like to discuss.

The fact is that legal rules both constrain and facilitate our behavior every day, even when we’re not conscious of it.  Routine payments by credit cards, Venmo or checks are possible because of a detailed set of rules set forth in banking law and the Uniform Commercial Code, among other things, but no one thinks about that when they buy their morning coffee.  The safety of our 401(k) retirement assets, in an account preservation sense if not a stock market valuation sense, is protected by the very securities laws that FTX chose to ignore as inapplicable.  We should be glad that we have a legal and regulatory system, and the collapse of FTX shows why they exist.

                                                                                          Richard P. Swanson
Vice President, NYCLA

The views expressed here are my own, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.

This Year’s Supreme Court Term

With the opening of this year’s Supreme Court Term, and the ascension of Hon. Ketanji Brown Jackson to the Court, about which I blogged last week, I am taking the liberty of providing this week a highly idiosyncratic overview of the Court’s forthcoming Term.  The cases which will shed the most light on how far the six Republican-appointed justices are willing to drive the Court in a rightward direction are I believe as follows.

Voting Rights Act:  In Merrill v. Milligan, argued last week, the Court faces the question of just how gerrymandered it is willing to allow voting districts to be, especially along racial lines. The State of Alabama implemented congressional voting districts after the 2020 census that all but guaranteed whites six out of seven districts even though they represent only 63% of the state’s population.  A three-judge court struck the redistricting down, as an unlawful gerrymander that was designed to dilute Black votes.  The Supreme Court used its shadow docket to suspend that ruling, as coming too close to the midterm elections.  I blogged about that decision, because based on the timing of the release of census data necessary to perform the redistricting, the gerrymandering and a legal challenge to it could not have proceeded any faster.  So if not now, then when?

Now the Court has the substance of the decision before it, which will affect the 2024 elections at the earliest.  Over the last decade the Court has weakened the Voting Rights Act systematically, and I have little doubt they will do so again, likely by a 6-3 vote since Justice Roberts wrote the last Voting Rights Act decision.  As Justice Jackson pointed out in the argument, the Voting Rights Act was enacted pursuant to the 14th and 15th Amendments, both of which were designed to encourage formerly enslaved Blacks to participate in the political process after the Civil War, and then Congress passed the Voting Rights Act in 1965 to help eliminate Jim Crow voting laws that had largely defeated those goals for nearly a century.  So it is hard to say the law was colorblind in this context.  It most certainly was not.

Affirmative Action:  In the Harvard and University of North Carolina cases, the Court is faced with its most current challenge to affirmative action.  Many of us are uncomfortable with a formal statistical quota system, when college admissions are supposed to be based on merit.  Yet many of us also recognize that history and discrimination make their own claims.  Minorities still suffer from the after-effects and even the current effects of discrimination, poverty, real estate red-lining and public education systems in inner cities in particular that all too often fail minorities.  We have evolved an ambiguous compromise as a result, where prior Supreme Court affirmative action decisions allow colleges and universities to take diversity goals into account in admissions, without hard quotas.  Within that broader system we have evolved particular systems that are believed to meet those standards.  For example, some public universities accept top students automatically from any public high school in the state (the University of Texas is an example).  Other public and private universities no longer require the SATs or ACTs out of a belief that wealthy whites systematically do better on those tests, which they do, although the reasons for that are a variation on the old “nature v. nurture” debate.

Here we can expect the Supreme Court to strike down all efforts at affirmative action.  The timing of the Court’s decision may matter.  The case is scheduled to be argued at the end of October, and a decision right before acceptance letters go out could be highly problematic for the admissions officers called on to make decisions starting right now in the case of early action or early decision programs.  After the decision comes down HR departments all over the country will have to decide what it means for their own diversity goals in employment.

Gay Discrimination:  The Court also has before it yet another case where a private business owner refuses to provide wedding services to a gay couple, in this case a wedding cake for two grooms.  The business owner argues that she has the First Amendment religious right to refuse to serve the gay couple based on her own religious beliefs.  If she were refusing to serve a Black couple, we’d have no problem concluding that she was violating the Civil Rights Act of 1964, even if she argued her religious beliefs required that too.  Indeed, many did make precisely that argument, on both religious and free association rights grounds, in the 1950s and 60s, until the courts started roundly rejecting those arguments.  Will the fact that the discrimination is against gays instead of Blacks be a difference that makes a difference, as my torts professor Morton Horowitz liked to ask?  My bet, unfortunately, is yes.  The Book of Leviticus, in what Christians refer to as the Old Testament, does condemn homosexuality, as do other Jewish, Christian and Islamic texts.  Beliefs and prejudices expressed more than two millennia ago will, I believe, still be found to permit discrimination today.  

Voting Rights and the Independent State Legislature Theory:  Last but most definitely not least, in Moore v. Harper the Supreme Court has before it another case coming out of North Carolina where there is a challenge to gerrymandering on racial grounds.  There the state legislature drew gerrymandered maps, and the state Supreme Court ruled that the gerrymandering violated the state’s constitution and ordered the maps re-drawn.  The state appealed to the Supreme Court of the United States, arguing both that federal law controlled, and that if state law controlled, under the Elections Clause to the Constitution no court could second-guess the decision of the state legislature.  Thus, the argument goes, the North Carolina Supreme Court decision itself was unconstitutional.  The Elections Clause does give the various state legislatures the right to pass legislation governing the time, place and manner of voting.  It is hard to infer from this general authorization that a state legislature can do whatever it wants.  And yet, a popularized reading of this language on the part of some Republicans and their allies, notably including Justice Thomas, argues that this language insulates any decision a state legislature may make about an election from judicial review, state or federal.  Huh?  What about Marbury v. Madison?  Or the Civil War Amendments?  What if a state legislature decides to pass a law rejecting the results of a Presidential election in that state and appoints its own electors instead?  Would the proposed Electoral Count Act amendments that are designed to make electoral vote-counting in Congress more mechanical prohibit Congress from considering such an action?  And should such an action be immune from judicial review, state or federal?  After January 6, 2021 it is not impossible to think that such actions might be attempted.  Until then, and even after Bush v. Gore, it was hard to contemplate that the Supreme Court might uphold such an outcome.  But those thoughts are, unfortunately, no longer unthinkable.  Maybe this will be the case that will bring the Supreme Court to at least some semblance of sense.  I’m not optimistic.

There are of course other decisions of consequence to be rendered, on environmental regulation, IP rights, Section 230 and many other matters of substantial relevance to the industries impacted and to the public at large.  But this admittedly idiosyncratic overview reflects my own thoughts and concerns about the direction of out judiciary.           
 

Richard P. Swanson

                                                                                          Vice President, NYCLA

The views expressed here are my own, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.

Ketanji Brown Jackson Joins the Supreme Court

As we get ready for the Supreme Court’s October 2022 term, it bears noting that the Hon. Ketanji Brown Jackson will be joining the Court for its first arguments.  She was sworn in right after Justice Breyer’s retirement became official at the end of the last term, and has been participating in motions, certiorari grants and the shadow docket all summer, but next week marks her first public appearance in the Court’s official work.

I blogged previously about her confirmation hearings, which turned into a bit of a clown show with Republicans who could not stop her confirmation choosing instead to try to put on a circus act of irrelevancy that had nothing to do with her or her judicial approach.  Readers of this blog know that I often criticize some of the current prevailing judicial “philosophies,” primarily textualism and originalism, which I consider to be incomplete theories of how judges should decide cases and which are actually intended to conceal result-oriented decisions while blaming someone other than the judge making the decision.  “It wasn’t me that decided this case that way.  Blame the Founders or Congress that passed that statute or anyone other than me.”  We saw that this past term in the Dobbs abortion case and the Bruen gun rights case where dubious history of original intent and dubious analysis of constitutional text were both employed.  We also saw it in the West Virginia environmental case where there was questionable analysis of the text of the Clean Air Act which was rescued by the equally questionable use of a “major question doctrine” which is not rooted in original intent or text at all.

What I found interesting in Justice Jackson’s confirmation hearing was her description of her own approach to judging, which she described as a “methodology” rather than the more doctrinaire word “philosophy” (see in the simple word choice how text can contain ambiguity and morph in its meaning!).  She said she starts with the text, as we all do as lawyers when we analyze the Constitution or a statute or a regulation or a contract.  That is what Justice Kagan meant when she said, a few years ago, that “We are all textualists now.”  

But we don’t stop there.  As Justice Jackson  said in her confirmation hearings, we next consider intent, to the extent it may be ascertainable, which requires diligent effort but also modesty in our ability to determine what the intent may have been and how it might apply to changed circumstances.  How do we know the actual intent of our Founders?  Can we determine it by reading the Federalist Papers, written largely by James Madison, Alexander Hamilton and John Jay?  How do we determine the intent of 535 members of Congress in passing a statute?  By reading committee reports prepared by staff generally supporting a piece of legislation?  Should we go back to Lord William Hale in Merry Olde England, as Justice Alito did, unhelpfully in my view, in the Dobbs abortion case?  In a contract case can we ascertain intent by looking at the negotiation history or the sequence of marked drafts?  All of these have some validity, but all are uncertain sources as well, so a judge must be careful about placing undue reliance on them.  At least in the case of constitutional intent a judge trying to ascertain that intent in a conclusive way had better be a very good historian to boot, and most judges are not trained to be historians as a side gig.  Even historians themselves often disagree as to what a historical record represents or reflects or even what the actual historical record is.  Justice Jackson’s methodology allows for judicial modesty about her ability to make such determinations, in a fashion that does not reflect at all where hard core originalists, over-confident in their historical abilities, simply do not fear to go.

The next thing she said she considers, relatedly, is legislative or constitutional purpose, which is related to intent but not quite the same.  It’s a good thing, too.  If we were bound by pure intent, we’d have to say that Congress did not necessarily intend for the Fourteenth Amendment to provide for integrated schools, as the history shows that schools in Washington D.C. were segregated long after the Civil War ended.  But the purpose of the Amendment, to bring formerly enslaved persons into equality with whites, certainly supported the decision in Brown v. Board of Education.  How can we reconcile that ruling with the originalist approach?  Is Brown a derelict on the sea of the law, to use an expression?  Most people would think not.  It was rather one of the Supreme Court’s finest moments but it wasn’t “originalist.”  Justice Jackson’s methodology permits greater flexibility than the “originalist” approach.  A judge should be able to consider purpose, policy, potential consequences and even justice and fairness in rendering a decision.  

But, say the textualists and originalists, if we are not bound by text and history, what controls judicial decision-making?  How can we say we are democratic, with a small D, if a judge can rule however he or she wants?  Isn’t that autocratic rather than democratic?

While that is a point, and presents a conundrum that has troubled legal scholars such as John Hart Ely for generations, my answer is to remember the common law and the approach to judging that it represents.  If the Founders had an original intent in drafting Article III to the Constitution, and the Bill of Rights, it was that the common law would continue.  (My own personal view is that if the Founders had any intent at all, it was that the nation and times would both evolve, and political and legal theories and structures could evolve alongside that, and they offered what they hoped was an overall structure to provide for such evolution, because they knew, modestly, that they could not foresee far into the future, but that is a different subject for a different day.)  Some provisions of the Bill of Rights, such as the Seventh Amendment, specifically refer to the common law (is that textualism rearing its head?).

The common law, as Justice Oliver Wendell Holmes, Jr. reminded us, reflects an evolutionary approach to judging.  We look to precedent, and the analogies that are at the heart of precedential reasoning, to see how older principles might apply to newer sets of facts.  From the attention, and criticism, paid to judicial decisions, we also assess how correct those analogies and the underlying reasoning they reflect may be.  We take all of the factors at the core of Justice Jackson’s methodology into account.  And in this fashion the law evolves, slowly and conservatively (with a small C), to take account of current times and their needs and imperatives.  In the 58 years from Plessy v. Ferguson’s “separate but equal” doctrine to Brown, the Supreme Court rendered a number of decisions limiting Plessy’s reach, for example by requiring states to admit Blacks to segregated professional schools, including law schools, where the state offered no “separate but (un)equal” professional school open to Blacks.  Such legal evolution is at the core of our judicial history, and as noted, if the Framers had an original intent around how judges should be empowered and behave, it most likely was that the evolution of the common law should continue.

So, Justice Ketanji Brown Jackson, welcome to the Supreme Court.  Good luck and Godspeed.  May your methodology to the craft of judging continue, and may it cause some of your colleagues to re-consider their own misguided and politicized and, frankly, disingenuous theories of textualism and originalism.  I wish I could be confident that the second half of that last sentence might prove true.                             

                                                                                          Richard P. Swanson
Vice President, NYCLA

The views expressed here are my own, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.

WEST VIRGINIA v. EPA – A MISGUIDED APPROACH TO ENVIRONMENTAL REGULATION

As we prepare for this year’s Supreme Court Term, it is useful to look back at last year’s as well.  On the last day of the October 2021 Term, the Supreme Court decided West Virginia v. EPA, which struck a dagger in the heart of environmental regulation and our most pressing environmental problem of the day which is climate change.  The decision was not only wrong, in my opinion, but also exposes the error in the Supreme Court’s approach to textualism, which is a subject I’ve blogged about here previously.  The decision also reflects, procedurally, the current Supreme Court’s aggressive approach to precedents and regulations that the conservative justices have decided they don’t like, including a five-year long aggressive use of the shadow docket in this case.

The case concerned the EPA’s Clean Power Plan, including its New Source Performance Standards, which were promulgated during the Obama Administration, in 2015.  The overall objective of the Plan was to try to limit carbon dioxide pollution from power plants that generate the electricity we all use every day, including in the typing of this blog post.  The plan had three distinct “building blocks”:  first, improving heat rates at existing plants to burn coal more cleanly; second, conversion from coal to natural gas, which burns more cleanly, at existing and new plants; and third, shifting from both coal- and gas-burning plants to renewables such as wind and solar.

The authorizing legislation is Section 111 of the Clean Air Act, enacted more than 50 years ago during the Nixon Administration.  For those of us old enough to remember air quality in metropolitan areas before the Clean Air Act, it has to be considered one of the great success stories of regulatory legislation.  Section 111, in relevant part, directs the EPA to “determine…the best system of emission reduction.”  

Procedurally, the Supreme Court’s aggressive approach is shown by how it used the shadow docket in this case.  The Supreme Court stayed the implementation of the Clean Power Plan as far back as 2016.  Following the election that year, the Trump Administration’s EPA suspended the Plan, which one might think would have rendered the case moot.  And, the Biden Administration’s EPA  has not yet decided how if at all it will replace the Plan.  But the Supreme Court decided to proceed with the case anyway.  Judicial restraint?  I think not.  In the days of real judicial restraint, as practiced by people like Felix Frankfurter, we thought of it as a conservative doctrine.  That just isn’t true of this “conservative” Supreme Court, which appears to be determined to re-make the country in its desired image.

Substantively, the decision rests in substantial part on the Court’s interpretation of the word “system.”  The Court effectively ruled that each individual power plant was a self-contained “system”, so improving heat rates at existing plants (building block #1) could be required, but #s 2 and 3, conversion of plants from coal to gas and shifting to renewables, were beyond the scope of the EPA’s authorization.  Say what?  Isn’t the “system” of power generation broader than that?  The grid is inter-connected, involving multiple power plants, mostly across state lines with regional compacts for reliability, stability and power sharing (Texas is the primary exception, and a large state which might be able to go it alone but look what that got them over the past winter when it had multiple power failures due to weather).  Isn’t that a “system”?  And aren’t our atmosphere and environment as a whole “systems” as well, comprised of many different subsystems that all inter-relate?  The word “system” does not have to be so limited.

Chief Justice Roberts, who wrote the majority opinion, dealt with this textualist problem by referring specifically to “context.”  But doesn’t that concession give away the entire textualist approach that the conservative majority has been so enamored of lately?  And how could a Court exercising judicial restraint say that the “context” of the Clean Air Act doesn’t permit the EPA to look at the power generation “system” or even the environmental “system” as a whole to decide that moving away from coal to natural gas and renewables isn’t a permissible “system” to reduce carbon dioxide emissions?

But the Court did so anyway, essentially three ways.  First, the Court suggested that carbon dioxide might not even be a pollutant.  It is true that it is not, by itself, poisonous, and is always present in our atmosphere.  But the ppm numbers are climbing, and the overwhelming scientific consensus is that it is causing temperatures to rise, with consequences for temperature, weather, sea level and even potential species extinction.

Second, the Court concluded that the word “system” just wasn’t contemplated by Congress when it passed the Clean Air Act to allow the EPA to regulate the entire power industry.  Really?  When other EPA rules had major impacts on power plants (for example, mercury and sulphur dioxide emissions)?  And what about the impact of the Clean Air Act on the entire automotive industry?  These are our two major sources of carbon dioxide emissions as well as other emissions which the EPA did regulate and which are what has made the Clean Air Act so successful over the past half-century.  But the Court found that it was “common sense” that Congress didn’t intend the Clean Air Act to be interpreted so broadly.  Whose “common sense”?

Third, the Court relied, for the first time, on the “major question” doctrine, to say that if Congress had really intended to authorize the EPA to issue such a sweeping regulation, it should have spoken more clearly.  Justice Gorsuch, in a concurring opinion earlier this year in the Supreme Court’s “large employer mask mandate” case, referred to the doctrine as at the core of his thinking in a concurrence in that case which struck down the mandate, and it is true that the principle has been referred to as a supporting factor in the Court’s analysis in other cases, especially in interpreting rulings in those cases after-the-fact.  But this is the first time the doctrine has assumed primary importance in the Court’s actual ruling.  In a prior blog post about the “large employer mask mandate” decision, I raised my own questions about how we go about deciding that a question is “major.”  Those questions still remain, including when we should give deference to an agency’s interpretation of its statutory authorizing language, at least so long as the Chevron “deference” doctrine is still alive, even if it is on life support right now.

As Justice Kagan pointed out in her dissent, isn’t the mere necessity of relying on a “major question” doctrine inconsistent with the textualist approach?  And isn’t the fact that over the last five years the market has driven us to more emissions changes than the original 2015 Clean Power Plan itself required indicative that the EPA’s Plan is no longer a “major question” even if it arguably might have been back when it was originally proposed?  Why wouldn’t Congress want the EPA to pick what it concludes is “the best system” for reducing carbon dioxide emissions?  And why isn’t moving the power generation “system” from coal to natural gas and renewables the “best” approach?

Lastly, if Congress really believes the EPA is acting over-broadly, it has a legislative remedy to roll the regulation back under the Congressional Review Act.  Why isn’t that an effective democratic remedy?  Why should a “major question” doctrine be used as a thumb on the scale in the other direction, or as Justice Kagan described it, a non-textual “get out of jail free” card?

In fact, if anything, Congress put its own thumb on the scale, on the opposite side.  In this summer’s (mis-named) Inflation Reduction Act, there is language arguably intended to reverse the West Virginia v. EPA decision and permit the EPA to enact the Clean Power Plan, even if, as usual, Congress’s language was not as clear and explicit as one might like.

In short, I regard the Supreme Court’s decision in West Virginia v. EPA to be seriously misguided, and find the dissent to offer a far more persuasive point of view.

Richard P. Swanson

                                                                                          Vice President, NYCLA

The views expressed here are my own, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.