The Definitive John G. Roberts Thread

[D. Scarlatti]

Here are the relevant portions of Kyl's remarks, according to the NYT transcript:

I just wanted to note a couple of the cases in which this ["reliance, or even reference to, foreign law to determine the meaning of the United States Constitution"] was done recently. A case this year, Roper v. Simmons, in which the Supreme Court reversed a prior precedent and decided that it would be unconstitutional to execute a man who was 17 at the time that he brutally murdered a woman by throwing her off of a bridge.

In deciding the case, the Supreme Court not only, in my view, engaged in questionable analysis of American law, it spent perhaps 20 percent of its legal analysis discussing the laws of Great Britain, Saudi Arabia, Yemen, Iran, Pakistan, Nigeria and China. The court claimed that we ought not to, stand alone on this issue and that we should pay attention to what other nations do when we interpret our Constitution.

First of all, I have no idea how he came up with "20 percent of its legal analysis": this is false for a number of reasons.

Secondly, Justice Kennedy, writing for the majority in Roper, makes the following clear:

Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility.

This discussion of foreign law takes place at the end of the majority opinion, after an exhaustive analysis of domestic facts, findings, and law which, as is clear from the excerpt directly above, had already led to the Court's disposition that the execution of juveniles is disproportionate punishment in violation of the Eighth Amendment. So Kyl is full of shit to claim that the Court rested "20 percent of its legal analysis" on foreign law. It's more like "zero percent," as the opinion demonstrates.

Justice Kennedy goes on to say:

Yet at least from the time of the Court's decision in Trop, the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment's prohibition of "cruel and unusual punishments."

Kennedy then cites several other cases in which the Court has made reference to foreign law in Eighth Amendment cases. Why, one might ask, is Senator Kyl singling out Roper when the Court has been engaging in the practice he maligns since 1958, when Trop was decided? Never mind the arch-conservative Justice Rehnquist's "reliance" on foreign law in Glucksberg, which I mentioned in another post.

Those are just two of the issues I have with the Kyl's blathering about citing foreign law. Another Republican Senator, Brownback of Kansas, was at it again this morning, suggesting that simply referencing foreign law was enough to impeach a federal judge for violating the "good behavior" provision of Article III, and trying to goad Roberts into agreeing with him!

Next Kyl says:

And in 1999, Justice Breyer argued that the court should consider whether a long delay in executing an convicted murderer, a delay, by the way, caused by his repeated and arguably frivolous appeals, should be deemed cruel and unusual under the Eighth Amendment. And he relied on the legal opinion of courts in Zimbabwe, India, Jamaica and Canada.

This is just pure misrepresentation on Senator Kyl's part, whether wilful or simply ignorant, or dreadful legal research on the part of his assistants, I can't say. The "case" to which he refers but does not name is not really a "case" at all, as most observers would understand it. It is a denial of review, to which Justice Breyer wrote a dissent.

The denial refers to two cases, one from Florida and one from Nebraska, which seek review of a death sentence on account of the considerable period of time elapsed between conviction and sentence.

First of all, Justice Thomas writes a short opinion concurring with the denial of review, stating that if there were really any U.S. precedential basis for the petitioners' claims, they wouldn't need to cite caselaw from Zimbabwe and India.

Breyer's dissent in favor of granting review responds to the points made by Thomas, which in turn were responding to the petitioners' legal briefs, and expands upon them somewhat. Breyer explicitly notes:

Obviously this foreign authority does not bind us. After all, we are interpreting a "Constitution for the United States of America."

Furthermore Breyer comments on certain reservations to international treaties taken by Congress, one of which objects to a provision having to do with the DP, "including any constitutional period of confinement prior to the imposition of the death penalty" in the course of finding the views of the other treaty signatories "useful," but nothing more.

That Kyl finds these examples representative of "reliance" on foreign law is a bit of a joke, I'm afraid; but I suppose this sort of rhetoric gets the conservative troops fired up. Personally I find it borderline unethical to misstate and misrepresent the caselaw in this manner, especially when the likes of Kyl and Brownback studiously avoid mentioning the cases in which their favorite judges employ precisely the same techniques.

[ApostateAbe]

Thanks, D.

[D. Scarlatti]

My pleasure. I'm always up for puncturing Republican falsehoods.

Another thing that puzzles me is Judge Roberts's several references to Federalist 78, which admittedly contains the celebrated phrase asserting that the judiciary is the "least dangerous branch" of government. But it also contains a rather lengthy discussion of the judiciary's ultimate power in invalidating the legislature for operating in a manner "repugnant" to the Constitution, what we call judicial review.

Another thing I don't get is why the Federalist Society calls itself that. The Federalist Papers are arguments in favor of a strong, centralized federal government. I thought that was anathema to conservatives. Alexander Hamilton, who wrote Federalist 78, once gave a six hour speech in which he called for the president to be appointed for life, like a king.

Jefferson was the one that favored local control. Shouldn't they call themselves the Anti-Federalist Society? That would be more consistent with little pockets of creationist school boards and whatnot.

[D. Scarlatti]

Pretty good article, with lots of attribution, on Judge Roberts and the constitutional right to privacy:

There's the rub, as Judge Roberts reflected: He endorsed Griswold v. Connecticut, the 40-year-old Supreme Court decision that enshrined married couples' right to use contraception, but steered clear of embracing the more controversial rulings that have grown - or may yet grow - out of it involving abortion, gay sex and the right to die.

The Supreme Court's Biggest Question

[godfry n. glad]

Originally Posted by D. Scarlatti

Another thing I don't get is why the Federalist Society calls itself that. The Federalist Papers are arguments in favor of a strong, centralized federal government. I thought that was anathema to conservatives. Alexander Hamilton, who wrote Federalist 78, once gave a six hour speech in which he called for the president to be appointed for life, like a king.

Jefferson was the one that favored local control. Shouldn't they call themselves the Anti-Federalist Society? That would be more consistent with little pockets of creationist school boards and whatnot.

I've often wondered about this as well, on the same understanding as yours. However, I'm of the opinion that they really don't think these things through; they just go for symbolic association, even if it's wrong. I would put the current conservative crowd in with those who demanded the Bill of Rights...state's righters who distrusted centralized government for the power it could accrue to itself, at the cost of states and individuals.

[D. Scarlatti]

Originally Posted by godfry n. glad

I would put the current conservative crowd in with those who demanded the Bill of Rights...state's righters who distrusted centralized government for the power it could accrue to itself, at the cost of states and individuals.

You'd think so, wouldn't you. I mean, even the Federalist Society logo is a cameo of James Madison, another of the Federalist Papers' authors. Maybe they just like our current "king"; they just aren't too enamored with his predecessor.

There is a law review article Robert Bork wrote way the hell back which turned out to be very contentious during his nomination hearings. It was the basis for his argument, which he refused to back away from, that the only speech the First Amendment protects is political speech. The article discusses at length his view of "Jeffersonian democracy" and especially "Madisonian democracy." I'll have to read it again sometime. I don't remember which law review it was in, but it was in Indiana. Early 70s, if I recall correctly.

[Stephen Maturin]

Now that the Senate has confirmed Roberts as the 17th Chief Justice of the Supreme Court of the United States (or 11th Earl of Mar, or Public Animal Number 9, or whatthehellever), we'd best get back to discussing the cases that Chief Justice Roberts and his colleagues will be deciding this term. Scarlatti's apparently back in school and maddog has a real job, so perhaps I should have a go at one or two cases.

Besides, I'm downright euphoric at the moment. My ex-boss and I just beat summary judgment in a complex multi-defendant product liability case pending before a notoriously anti-plaintiff judge. In addition, I just traversed the entire length of our bedroom without having to step on and/or trip over any of Lisa's clothing. Yessir, it's been a damn fine day! Maybe TOO fine a day. I need to come down a bit, and no buzzkill on earth is as effective as summarizing an extremely dull case.

Which brings us to Will v. Hallock, No. 04-1332, yet another Federal Tort Claims Act ("FTCA") case on the Court's docket. Unlike the FTCA case Scarlatti discussed above, though, this one is of little interest to anyone but procedure geeks and federal judges.

According to the plaintiffs, a bunch of agents from the U.S. Customs Service, U.S. Department of Justice, U.S. Department of the Treasury and U.S. Marshals Service executed a search warrant at the Mohawk, New York home of Susan and Richard Hallock. Apparently, the authorities suspected Richard of violating federal criminal statutes prohibiting sexual exploitation of minors and possession of child pornography. Among the items seized during the search were a bunch of computers and disk drives that Susan used in her home-based business.

It seems that the kiddie pornographer, whoever that may have been, was also an accomplished identity thief. He stole Richard's identity and used it to cover his own nefarious tracks. In any event, the authorities examined the Hallocks' computers thoroughly and found no indication of illegal activity. No charges were ever brought and, after six months, the feds returned the computer equipment.

Trouble is, the equipment was completely wrecked when the Hallocks got it back. As a result, Susan Hallock had to shut down what was apparently a rather lucrative multimedia technology business.

Susan filed a FTCA lawsuit against the United States in the U.S. District Court for the Northern District of New York seeking recovery of money damages relating to the loss of her business. In days gone by, the federal government enjoyed immunity from lawsuits for civil damages. Pursuant to very old English common law, the King could do no wrong. After all, his reign was sanctioned by God himself. Though divine right monarchy had no place in the U.S. government established after the American Revolution, the common law notion of sovereign immunity somehow tagged along.

As Scarlatti noted above, the FTCA is a limited waiver of sovereign immunity that allows aggrieved persons to sue the federal government for damages under certain circumstances. However, the right to sue is subject to numerous exceptions, including this one:

Any claim arising in respect of . . . the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer . . . .

28 U.S.C. sec. 2680(c). Granting the government's motion to dismiss for lack of subject matter jurisdiction, the trial judge held that the claims at issue arose from the detention of Ms. Hallock's computer equipment and therefore were not within the scope of FTCA's waiver of sovereign immunity. That decision was never appealed.

Susan's lawyer must have seen the handwriting on the wall. Before the judge dismissed her case against the U.S., Susan filed a separate lawsuit in the same district court against the individual government agents involved in the search and seizure. To make a really long story really short, a Supreme Court case called Bivens authorizes persons injured by the unconstitutional acts of federal agents to sue the agents and recover money damages. In her second complaint Susan alleged that the damages to her computer equipment and resulting loss of her business were the result of the agents violating her Fifth Amendment property rights.

As soon as the trial court dismissed the first lawsuit, the defendants in the Bivens action filed their own motion to dismiss, relying on the "judgment bar" rule set forth in the FTCA. That rule reads:

The judgment in an action under [the FTCA] shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim.

28 U.S.C. sec. 2676.

Looks pretty conclusive, doesn't it? After all, the Bivens action against the agents involved the same subject matter as the previously dismissed FTCA claim against the federal government. Even so, the judge denied the agents' motion to dismiss. He characterized the judgment in the FTCA case as being based on a "procedural error" -- lack of jurisdiction -- and held that Ms. Hallock's "procedural loss" in the first case did not prevent her from enforcing her substantive rights in a subsequent action against "the proper defendants."

The agents appealed the judge's ruling denying their motion to dismiss. A three-judge panel of the U.S. Court of Appeals for the Second Circuit unanimously affirmed the trial court. Hallock v. Bonner , 387 F.3d 147 (2d Cir. 2004) (PDF, 14 pages).

The court of appeals had two issues to decide. The first was whether it even had authority to hear the appeal. Generally, the appellate jurisdiction of federal courts of appeals extends only to "final decisions." 28 U.S.C. sec. 1291. A decision is "final" if it disposes of all the issues in the case. The trial judge's decision denying the motion to dismiss clearly didn't qualify. Whether the agents were actually liable and, if so, the extent of Ms. Hallock's damages, remained to be decided.

There are several statutory exceptions to the final decision rule, none of which applied here. Ordinarily, the agents would have to wait until a final judgment is entered to appeal the adverse ruling on their motion to dismiss. However, there's a judicially-created exception to the final decision rule called the "collateral order doctrine" under which interlocutory (non-final) orders can be appealed where:

the interlocutory order . . . conclusively determine[s] the disputed question, resolve[s] an important issue completely separate from the merits of the action, and [is] effectively unreviewable on appeal from a final judgment.

Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978).

The court of appeals held that it had jurisdiction to hear the appeal under the collateral order doctrine. The agents were relying on the "judgment bar" provision of the FTCA. The interest protected by that provision is the right not to stand trial or put up with the many other hassles associated with civil litigation. That interest could not be asserted "effectively" on appeal if the agents had to wait until after trial.

The second issue before the court of appeals was whether the trial court properly construed and applied the above-quoted "judgment bar" rule. On that issue the appellate court ruled that the trial judge reached the correct result for the wrong reason. The court didn't buy the trial judge's "procedural error" reasoning at all. Instead, it held that the judgment bar rule didn't apply since an FTCA action dismissed because it falls within an exception to FTCA's limted waiver of sovereign immunity -- as Susan's case against the U.S. was -- doesn't result in a "judgment in an action under [the FTCA]", as the judgment bar rule requires. Thus, the judgment bar doesn't apply unless the prior FTCA action was "within the category of cases for which sovereign immunity has been waived." On that basis, the Second Circuit upheld the trial court's decision to deny the agents' motion to dismiss.

The agents then requested that SCOTUS review the case. The Supreme Court granted certiorari on June 6, 2005 and ordered the parties to brief and argue the following issues:

Whether a final judgment in an action brought under Section 1346(b)
dismissing the claim on the ground that relief is precluded by one of the
FTCA's exceptions to liability, 28 U .S.C. 2680, bars a subsequent action by
the claimant against the federal employees whose acts gave rise to the FTCA
claim.

In addition to the Question presented by the petition, the parties are directed
to brief and argue the following Question: "Did the Court of Appeals have
jurisdiction over the interlocutory appeal of the District Court's order denying
a motion to dismiss under the FTCA's judgment bar, 28 U.S.C. §2676?"

The Supreme Court generally doesn't tell us why it agreed to hear a particular case. Here, I suspect it took the case because the Second Circuit's ruling on the judgment bar issue conflicts with that of a different federal court of appeals. Resolving such conflicts is a sizeable chunk of the Supreme Court's job. As to the second issue, at least four of the justices think it's time to limit, extend and/or clarify the collateral order doctrine.

Prediction: The Second Circuit's ruling is goin' down. A big majority of the Court (anywhere from 9-0 to 7-2) will answer both questions in the affimative.

[D. Scarlatti]

Excellent post, thanks. That's some arcane shit.

Are you going to do (so to speak) Anna Nicole Smith next?

(She was unsuccessful at probate because he neither probed nor ate his wife ...)

[Stephen Maturin]

Originally Posted by D. Scarlatti

That's some arcane shit.

Boy, howdy.

Originally Posted by D. Scarlatti

Are you going to do (so to speak) Anna Nicole Smith next?

Might as well. Pretty much everyone else has, the late J. Howard Marshall II excepted, of course.

Originally Posted by D. Scarlatti

(She was unsuccessful at probate because he neither probed nor ate his wife ...)

[Stephen Maturin]

Yeah, I was planning to discuss the Anna Nicole Smith case, but this one's substantially more interesting and significant.

In 1990, the Supreme Court decided Employment Division v. Smith. The Court held that the Free Exercise Clause of the First Amendment does not exempt "religious" behavior from religion-neutral, generally applicable criminal laws. In particular, the Court ruled that states may criminalize religious peyote use by Native Americans.

Congress responded to Smith by passing the Religious Freedom Restoration Act of 1993 ("RFRA"). In an effort to reinstate the standard used in Free Exercise cases before Smith, Congress decreed that:

(a) In general

Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.

(b) Exception

Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

42 U.S.C. sec. 2000bb-1(a-b) (emphasis added). The Supreme Court later ruled that RFRA is unconstitutional as applied to the states, but the law remains binding on the federal government.

O Centro Espirita Beneficiente Uniao do Vegetal ("UDV") is a small Christian sect that originated in Brazil and has 130 or so adherents in the U.S. Their religious practices include sacramental use hoasca tea, a substance made from two plants that grow only in Brazil.

Trouble is, hoasca contains dimethyltryptamine ("DMT"), a hallucinogenic drug deemed a Schedule 1 controlled substance under the federal Controlled Substances Act ("CSA"). The CSA criminalizes the manufacture, distribution or possession of Schedule 1 drugs except under very narrow circumstances.

The Customs Service seized a shipment of hoasca bound for the home of a UDV member in the U.S. Agents also searched the member's home and seized an additional thirty gallons of hoasca found therein.

The Ashcroft Justice Department, which did everything possible to raise drug law enforcement to the level of a holy war, threatened prosecution. UDV and several of its members filed suit in U.S. District Court for the District of New Mexico, seeking an injunction against any criminal prosecutions or any government efforts to prohibit the church's importation, possession or use of hoasca. One of UDV's arguments is that religious practice rights granted by RFRA trump the criminal prohibition set forth in the CSA.

The trial judge granted UDV's request for a preliminary injunction and the government appealed. By a vote of 2-1, a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit affirmed. In order to establish entitlement to a preliminary injunction, the plaintiff must prove "(1) a substantial likelihood of success on the merits of the case; (2) irreparable injury to the movant if the preliminary injunction is denied; (3) the threatened injury to the movant outweighs the injury to the other party under the preliminary injunction; and (4) the injunction is not adverse to the public interest." The court found that UDV presented evidence sufficient to support the trial judge's decision to grant an injunction.

The government argued that RFRA's "compelling governmental interest" standard was met. Three government interests -- protecting the health of UDV members, preventing diversion of hoasca for nonreligious uses and enforcing a treaty called the United Nations Convention on Psychotropic Substances -- were sufficiently compelling to justify the federal government imposing a substantial burden on UDV's religious practices. The court of appeals disagreed. The first two asserted interests weren't established by the evidence presented at trial. As for the treaty, under which signatory nations agreed to prohibit use of drugs such as DMT for anything other than scientific and limited medical purposes, the court noted that treaties and federal statutes are co-equals in the hierarchy of laws. If a treaty and a statute conflict, the newest law controls. RFRA postdates the treaty by more that twenty years. Thus, enforcing the treaty cannot be considered a "compelling governmental interest" for RFRA purposes.

The Tenth Circuit granted en banc review of the three-judge panel ruling and ultimately affirmed. The case is now pending before the Supreme Court. Oral argument was held on November 1. A discussion of the argument is available here.

The constitutionality of RFRA doesn't appear to be at issue in this case. (In a 1997 case, Justice Stevens opined that RFRA violates the Establishment Clause because it grants religious folks advantages that atheists and agnostics don't have.) Although it's possible for the Court to avoid the merits by ruling that the lower courts applied the wrong preliminary injunction standard, that doesn't appear likely. The above-linked discussion of the oral argument seems to indicate that reactions of most Justices to the government's position range from skeptical to openly hostile. In all likelihood, the Court will affirm and send the case back to the trial court so it can run its normal course.

[D. Scarlatti]

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