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32 posts from December 2018


Seth Barrett Tillman on Richard Fallon
Michael Ramsey

Recently published, from Seth Barrett Tillman: Canonical Cases and Other Quodlibets: A Response to Professor Fallon, 97 Tex. L. Rev. Online 13 (2018).  Here is an excerpt (pp. 16-20):

Professor Fallon states:

The Lincoln Administration denied the court’s jurisdiction in Ex parte Merryman, but its position was debatable at best, tendentious at worst. A federal court had clear authority to issue the writ of habeas corpus unless entitlement to the privilege of the writ was validly suspended. [Richard H. Fallon, Jr., Judicial Supremacy, Departmentalism, and the Rule of Law in a Populist Age, 96 Tex. L. Rev. 487, 505–06 (2018) (emphasis added).]

The relevant constitutional provision here is the Suspension Clause, which provides: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” [U.S. Const. art. I, § 9, cl. 2.] As a textual matter, the clause does not address suspension of the writ (or even the suspension of habeas corpus simpliciter); rather, the clause speaks to suspension of the privilege. The two concepts are related, but they are not the same. Professor Fallon presumes that a suspension of the privilege suspends the writ. I cannot say he is alone in believing this. For our purposes here, whether or not the text is sufficiently clear is unimportant, nor does it matter what could be fairly established as a matter of original public meaning. What matters is simply this—the Supreme Court has addressed this issue.

In Ex parte Milligan, a unanimous Supreme Court stated: “The suspension of the privilege of the writ of habeas corpus does not suspend the writ itself. The writ issues as a matter of course . . . .” [Ex parte Milligan,71 U.S. (4 Wall.) 2, 130–31 (1866) (Davis, J.).] Professor Fallon’s restatement of the law is not in tension with the Court’s opinion in Milligan; it is its antithesis. How can this be? Milligan is part of the received case law: it is, I believe, canonical. Fallon discusses Milligan in his own papers. Not only does Fallon take a position at odds with Milligan, but he does so without giving his readers a courtesy but see. Why? Is it because some consider Milligan’s phraseology “cryptic”? [Note, Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1265–66 (1970).] Perhaps, we might call this doctrinalism by “ink blot.”

It would be unfair for me to turn to other examples without first giving some (reasonably likely) explanation of what it means to suspend the privilege of the writ, as opposed to suspending writ itself. Congress can suspend the writ or the privilege of the writ or both. But a suspension of the privilege of the writ is a far greater power than suspending the writ itself. Indeed, it can be fairly said that suspending the privilege of the writ is a power greater than and substantially unlike any other power granted to Congress by the Constitution.

When a prisoner seeks to test the legality of his detention, he petitions a court for a writ of habeas corpus. The right he seeks to vindicate, even if a constitutional right, is inchoate. Congress has substantial control over this inchoate right because Congress controls the jurisdiction of the lower federal courts. Should the adjudication end, and the prisoner be awarded the writ, in normal circumstances, the jailor will release the prisoner. But when circumstances are not normal, e.g., during a civil war or insurrection, the jailer might err, or he might actively choose to resist the writ. At that juncture, round two begins—i.e., a contempt hearing against the jailer. (This two-stage process is substantively similar to what happened in [Ex parte] Merryman [and in Wolfe Tone’s Case [1798] 27 How. St. Tr. 613 (K.B.) (Ir.) (Kilwarden, C.J.), https://tinyurl.com/ycm2lyyx].) In round two, the court does not adjudicate the underlying right, i.e., the prisoner’s right to the writ—that was already decided in round one. Here, in round two, the prisoner merely moves into evidence (i.e., the evidentiary privilege of . . .) the writ, which had already been awarded in round one. A suspension of the privilege of the writ precludes the court from allowing the prisoner (in round two) to move into evidence the writ, which had already been awarded (in round one). Of course, where the privilege has been suspended, but not the writ itself, a court might (and, per Milligan, must) still issue the writ . . . but enforcement via contempt would not be possible. [Compare U.S. Const. art. I, § 9, cl. 2 (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” (emphasis added)), with Mass. Const. of 1780, pt. 2, ch. VI, art. VII (“The privilege and benefit of the writ of Habeas Corpus shall be enjoyed in this Commonwealth, in the most free, easy, cheap, expeditious and ample manner; and shall not be suspended by the Legislature, except upon the most urgent and pressing occasions, and for a limited time, not exceeding twelve months.” (emphases added)).]

In more functional terms, the suspension of the privilege of the writ nullifies (or, at least, suspends ad interim) a final judgment of a court. Here what is suspended is not an inchoate or abstract right, but a right that had been finally adjudicated and determined by a properly constituted and competent court with jurisdiction. That is why the Suspension Clause was an absolute necessity to the constitutional text. Given our separation-of-powers structured constitution, although Congress could withdraw the writ in cases not yet adjudicated, Congress—absent the Suspension Clause—could not withdraw the privilege in cases where the writ had already been awarded. That is because the sine qua non of independent Article III courts is that their final judgments (at least, after the conclusion of appellate review) are—final.

Professor Fallon and others might not agree with the conjecture I have put forward above; he or they might reject each and every claim made here. But whether my conjectures are correct or not does not get him or them off the (intellectual) hook: they still have to pick up the gauntlet. Our inquiry here is not about obscure and opaque eighteenth century constitutional text, i.e., the Suspension Clause, but about the holding of a canonical unanimous post-bellum prolix Supreme Court decision: Ex parte Milligan. Nonoriginalists are permitted to describe eighteenth constitutional text as an “ink blot.” But it is quite another thing to make a similar allowance in regard to a post-bellum Supreme Court opinion. Here, “ink blot” is not a sufficient answer. And if it is not a sufficient answer, why not look for other, better answers—in regard to both Milligan and the Suspension Clause’s text?


Joel Goldstein: Talking Trump and the Twenty-Fifth Amendment
Michael Ramsey

Joel K. Goldstein (Saint Louis University - School of Law) has posted Talking Trump and the Twenty-Fifth Amendment: Correcting the Record on Section 4 (Journal of Constitutional Law, Vol. 21, No.1, 2018) on SSRN.  Here is the abstract:

The first year of the presidency of Donald J. Trump brought attention to Section 4 of the Twenty-fifth Amendment, the constitutional provision that allows the Vice President and a Cabinet majority to transfer presidential powers and duties from a President who is “unable to discharge the powers and duties” of his office. Although the ensuing media discussion included many thoughtful contributions, it also produced many mistaken assertions by scholars, journalists and other commentators regarding the importance, scope, operation, and effect of Section 4. These mistakes are troubling because they may produce enduring misunderstanding regarding a provision designed to handle some of the most challenging, traumatic and contentious contingencies that might arise involving an incapacitated President and the transfer of presidential powers and duties to the Vice President. The errors also might provide material for political actors and their supporters to cite and use opportunistically to frustrate the proper use of Section 4. This Article exposes and corrects some of the mistaken assertions that have recently appeared in media discussions. It explores a range of textual, originalist, structural, pragmatic, and other constitutional arguments to shed light on significant, but sometimes misunderstood, questions regarding the importance, scope, operation, and effect of Section 4.


Anita Krishnakumar & Victoria Nourse: The Canon Wars
Michael Ramsey

Anita S. Krishnakumar (St. John's University - School of Law) and Victoria Nourse (Georgetown University Law Center) have posted The Canon Wars (Texas Law Review, Vol. 97, No. 1, 2018) [reviewing William N. Eskridge, Jr., Interpreting Law: A Primer on How to Read Statutes and the Constitution (2016) & Antonin Scalia & Bryan Garner, Reading Law: The
Interpretation of Legal Texts (2012)] on SSRN.  Here is the abstract:

Canons are taking their turn down the academic runway in ways that no one would have foretold just a decade ago. Affection for canons of construction has taken center stage in recent Supreme Court cases and in constitutional theory. Harvard Dean John Manning and originalists Will Baude and Stephen Sachs have all suggested that principles of “ordinary interpretation” including canons should inform constitutional interpretation. Given this newfound enthusiasm for canons, and their convergence in both constitutional and statutory law, it is not surprising that we now have two competing book-length treatments of the canons—one by Justice Scalia and Bryan Garner, Reading Law, and the other by Yale Law Professor William N. Eskridge, Interpreting Law. Both volumes purport to provide ways to use canons to read statutes and the Constitution. In this Review of Interpreting Law, we argue that this contemporary convergence on canons raises some significant interpretive questions about judicial power and the very idea of a canon.

(Via Larry Solum at Legal Theory Blog, who says "Highly recommended").


Originalist Amicus Brief in the Maryland Cross Litigation
Michael Ramsey

In the American Legion v. American Humanist Association litigation at the Supreme Court, this Brief of Amici Curiae Religious Denominations and other Religious Institutions Supporting Petitioners has important originalist arguments.  Here is the summary of argument:

I.  A plain reading of the text shows that the Establishment Clause erects a jurisdictional bar to laws “respecting an establishment of religion.” For the founding generation, personal and historical experience invested this phrase with specific meaning. It included, most obviously, an official declaration that a particular church or religion was the preferred faith. Also embraced in that term were governmental intrusion into matters of church doctrine, governance, or personnel; compulsory participation in the rites and ceremonies of the established church; penalties on worship in dissenting churches or laws treating believers in those religions differently from believers in the established church; restrictions on political participation by religious dissenters; public financial support for the established church; and authorization for the established church to perform government functions.

Each of these attributes of an established church was not only likely to intrude upon the individual religious exercise of those who did not believe in the established religion, it also put the non-established faith communities at a substantial disadvantage. Thus, by prohibiting any law “respecting an establishment of religion,” the First Amendment’s Framers were protecting not just individual freedom, but non-established faith communities.

II. Most of the past and currently proposed legal standards for applying the Establishment Clause either misunderstand or ignore the Clause’s text and history, and for that reason threaten religious freedom. That is true, for example, of the “coercion” test offered by petitioner American Legion. To be sure, that test reaches the correct result here. But in some circumstances, adoption of that test would undermine the very freedom for religious institutions that the Clause was designed (in part) to protect: A statute authorizing a judge or other official to analyze religious texts to determine “the true Anglican doctrine” on a particular issue would be a flat violation of the Establishment Clause, even if the official’s conclusion triggered no government compulsion. See, e.g., Mitchell v. Helms, 530 U.S. 793, 828 (2000) (plurality opinion by Thomas, J.) (“It is well established *** that courts should refrain from trolling through a person’s or institution’s religious beliefs.”).

The American Legion is also mistaken in suggesting that the framework articulated in Lemon v. Kurtzman, 403 U.S. 602 (1971), should be thrown out entirely. Some aspects of that framework—specifically, parts of its “entanglement” analysis—are compelled by the Establishment Clause’s text and history and help protect the autonomy of religious institutions.

The American Legion is correct, however, in criticizing open-ended or subjective legal standards—such as the “endorsement” test and the generalized “purpose” and “effect” prongs of the Lemon test—as well as the plurality opinion and controlling concurrence in Van Orden v. Perry, 545 U.S. 677 (2005). None of those provides a sound general test for resolving Establishment Clause controversies, and none is consistent with the Clause’s text and history.

III. The proper test is suggested in this Court’s unanimous decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012), and the majority opinion in Town of Greece v. Galloway, 572 U.S. 565 (2014). Both decisions indicate that the meaning of the phrase “respecting an establishment of religion” should be discerned by looking to historical practices and understandings at or near the founding period.

Thus, unless long-standing precedent already speaks definitively and consistently on a specific issue, see, e.g., Engel v. Vitale, 370 U.S. 421 (1962) (state composed public school prayer), application of the Establishment Clause should be driven by its text and what the founding generation understood it to mean. Specifically: A government action should be sustained against an Establishment Clause challenge unless history confirms that the founding generation understood such an action as an establishment of religion outright—such as the official formation of a national church—or as a legal attribute of a religious establishment—such as a law intruding into a church’s ecclesiastical affairs.

Applying this test, Maryland’s maintenance of the Bladensburg Cross does not remotely violate the Establishment Clause. Maintaining a nearly century-old war memorial at a busy intersection is hardly an official declaration in law that Christianity is the government’s preferred religion. And the small financial cost of its maintenance—for the benefit of an organization that is not even a church—is a far cry from the public support for established churches during and preceding the founding era.

(Thanks to James Phillips for the pointer).


Nelson Lund: The Constitutionality of Immigration Sanctuaries and Anti-Sanctuaries
Michael Ramsey

Nelson Lund (George Mason University School of Law) has posted The Constitutionality of Immigration Sanctuaries and Anti-Sanctuaries: Originalism, Current Doctrine, and a Second-Best Alternative (University of Pennsylvania Journal of Constitutional Law, forthcoming) on SSRN.  Here is the abstract:

The Supreme Court’s immigration jurisprudence is fundamentally misguided, in the sense that it has little basis in the original meaning of the Constitution. In this essay, I will explain why I think so, and what the Court might do to ameliorate the effects of its past mistakes without overruling a raft of settled precedents.

Part I analyzes the text of the Constitution, which offers a reasonably clear allocation of authority over immigration between the state and federal governments. The Foreign Commerce Clause empowers Congress to limit the entry of aliens onto American soil, and the Naturalization Clause authorizes Congress to set uniform criteria for admission to American citizenship. Nothing on the face of the Constitution permits Congress to displace the states’ residual authority over aliens, which includes the power to exclude or expel unsuitable persons from their own territory.

Part II reviews early debates in Congress about the scope and nature of federal power over immigration. There were important disagreements, some of which resemble today’s policy debates, but Congress generally refrained from going much beyond what the text of the Constitution pretty clearly authorizes.

Part III traces the evolution of Supreme Court doctrine. The Court began by rooting federal immigration authority primarily in the Foreign Commerce Clause, where it belongs, but then misinterpreted that Clause. In the late nineteenth century, the Justices made a dramatic and largely unexplained shift to a non-textual theory under which broad federal authority over immigration and aliens is treated as an inherent aspect of American sovereignty.

Part IV shows that this doctrinal shift may not have had much practical significance. In non-immigration contexts, the Court eventually interpreted the Commerce Clause itself in a way that gave Congress practically the same far-reaching authority that the inherent power theory bestows in the immigration field. Thus, even if the Court had stuck with the Foreign Commerce Clause as the primary source of federal authority over immigration, the result would likely have been much the same as what the Court has mistakenly put in its place.

Part V assumes that the Court is very unlikely to reconsider the well-established inherent power theory. In recent decades, however, the Justices have been experimenting with doctrinal devices designed to put some limits on the almost unlimited Commerce Clause authority that previous cases had mistakenly conferred on Congress. The paper concludes with two examples showing how these limiting doctrines can and should be used to resolve recent controversies in which some states have desired to pursue policy objectives to which federal officials object.


Kevin Walsh Reviews Joel Paul's "Without Precedent"
Michael Ramsey

At Law and Liberty, Kevin Walsh (Richmond): Without Evidence: Joel Richard Paul’s John Marshall (reviewing [harshly] Joel Paul, Without Precedent: Chief Justice John Marshall and His Times (Riverhead Books 2018)).  From the introduction:

Paul is a gifted writer and his engaging prose yields a pleasant read. But his portrait of Marshall as a man and jurist too often reflects repackaged conventional wisdom developed over the last century or so. It has neither the immediacy of the older eulogistic accounts by near-contemporaries nor the fresh perspective that can come from renewed and in-depth attention to primary sources in their historical context. The most significant new historical claim in the book—that John Marshall probably suborned perjury from his younger brother, James Markham Marshall, to embarrass the Jefferson administration in Marbury v. Madison—is as baseless as it is bold.

And in conclusion:

Although Paul is wrong about the extent of Marshall’s inventiveness, he is right about Marshall’s ultimate object and his greatest accomplishment. Paul contends in his book’s opening sentence that “no one did more than Marshall to preserve the delicate unity of the fledgling Republic.” And he echoes this theme of Marshall’s contribution to national unity at the end of his introduction: “In a revolutionary time, against myriad enemies both foreign and domestic, Marshall held the Court, the Constitution, and the union together.” Although he fumbles in describing Marshall’s means, Paul properly grasps Marshall’s end.

One reason that Paul and others of a progressive bent may have difficulty appreciating Marshall’s modus operandi is that Marshall’s methods were fundamentally backward-looking in form. To many today, such an approach implies narrowness of mind and a regressive mindset. But looking back and holding to earlier authoritative determinations made by those with legitimate political authority is precisely what Marshall’s understanding of the judicial role and his obligation of fidelity to positive law required. His characteristic way of providing, judicially, for the future was to anchor the decisions of his Supreme Court in the record laid down by the people of the United States in the past.

In rejecting this biography’s perpetuation of the Progressives’ mythical Marshall, we must be careful not to swing to the opposite extreme. While Marshall was not as inventive as Without Precedent would have us believe, he obviously possessed abundant legal ingenuity. As R. Kent Newmyer has written, Marshall operated by identifying himself with the Court, the Court with the Constitution, and the Constitution with the People. That is the creative Marshall that the jurist himself would have wished to see perpetuated.


Andre LeDuc Reviews Richard Fallon's "Law and Legitimacy in the Supreme Court"
Michael Ramsey

Andre LeDuc (Independent) has posted Toward a Reflective Equilibrium: Making Our Constitutional Practice Safe for Constitutional Theory (Southern California Law Review, 2018) on SSRN.  Here is the abstract:

Book Review: Richard H. Fallon, Jr., Law and Legitimacy in the Supreme Court (2018)

Fallon departs from the traditional traces of our contemporary constitutional theory. He is redirecting us to new questions about the Constitution, the role of the Court, and the nature of the legitimacy of the Republic. By focusing on the foundations for the moral legitimacy of the Court and the Constitution, Fallon would shift our constitutional discourse away from the sterile debate over constitutional interpretation and originalism and other theoretical issues. That would be a signal achievement in its own right. By casting the discussion of legitimacy in the fundamental new terms that look expressly to our moral and political theory and our constitutional practice—rather than in the narrower, traditional terms of the countermajoritarian dilemma and the role of, and limits on, judicial discretion—Fallon tacitly challenges the dominant positivism that has informed both most originalism and the competing constitutional theories of originalism’s critics.

Fallon’s project is to move us beyond the current debates about constitutional theories of interpretation and his argument that the Court ought to adopt a process of pursuing a reflective equilibrium in its constitutional decision and constitutional practice in order to enhance the legitimacy of our constitutional law and the Court. The first strategy is commendable, but his proposed path reflects an unstated and misplaced commitment to the logical priority of theory. Fallon purports to articulate an account of constitutional practice, but he cannot cast off a fundamental commitment to the priority of concepts, theory, and interpretation. The second argument for a practice of reflective equilibrium may generate a more plausible account of constitutional adjudication than the dominant models in the legal academy, but Rawlsian reflection—even in the situated, historical, thick sense defended by Fallon—is not likely the path forward in understanding the nature of constitutional decision in adjudication or in enhancing the legitimacy of the Constitution and the Court.


Can the President Be Indicted?
Michael Ramsey

Following up on Andrew Hyman's post on indicting a sitting President, here are point/counterpoint posts from Laurence Tribe (Presidents can be indicted before impeachment) and Philip Bobbitt (Presidents cannot be indicted before impeachment).


The president and vice president run as a ticket. No president selects a vice president who wouldn’t strongly consider doing for him exactly what Vice President Gerald Ford did for President Richard Nixon: namely, give the president a full pardon shortly after he becomes the former president — whether that sudden reversal of fortune occurs upon the president’s being turned out by the voters, or upon his being impeached and removed, or upon his resigning under the threat of such ignominious removal.

It’s crazy to assume that the framers of the impeachment power would have created a system in which even the most criminally corrupt president could permanently escape full accountability. Immunized from criminal trial while serving in office (as the ostensible Justice Department policy would require), such a president could count on receiving a get-out-of-jail-free card upon his exit. For he would leave behind him a newly minted (albeit unelected) president wielding the power to pardon any and all “offenses against the United States.”

My aside: this argument seems historically ill-conceived.  The framers did not think the President and Vice President would run as a ticket.  That practice was implemented by the Jeffersonians in the election of 1800 and further entrenched by the Twelfth Amendment.  Had John Adams committed a crime as President, it's far from clear that Jefferson (his Vice President) would have pardoned him.  So the modern practice actually says nothing about the original design.  

But here's more from Bobbitt:

Professor Tribe’s argument depends on an artful reading of Article I, Section 3, which provides that “the Party convicted [by the Senate in an impeachment proceeding] shall nevertheless be liable and subject to indictment.”  The natural import of these words—their textual meaning to the ordinary reader—would assume, I think, that “the Party convicted” must be someone who has in fact been convicted, i.e., who has gone through an impeachment process prior to being subject to indictment.

Professor Tribe’s point, however, ignores the plain import of the text and relies instead on an implied intent. He believes that it would thwart the intentions of the framers—who clearly contemplated liability to indictment—if a president had to be convicted by the Senate first, because this would only bring to power his vice-president, who could be counted on to pardon the impeached president and thus render him immune from prosecution.

This argument depends upon some debatable assumptions. To begin with, it assumes that vice presidents, who must then serve out the disgraced president’s term, can be confidently counted on to pardon their predecessors. The example of Gerald Ford, which Professor Tribe cites, might go the other way: Ford’s re-election is widely assumed to have been doomed by his pardon of Richard Nixon, hardly an incentive to future vice presidents contemplating a pardon for a humiliated and disdained former president. Professor Tribe also takes for granted that if the new president were inclined to pardon his predecessor, he would abandon such a course of action if the impeached president were subject to an indictment. I see no basis for this conclusion, and it calls to mind the phrase “swallowing the camel and straining at the gnat,” for surely a successor who was willing to take the heat for pardoning his disgraced and impeached predecessor would not be deterred by the technicality that the predecessor was subject to an indictment. Indeed, presumably the current president must assume that an indictment is forthcoming in any event—otherwise, why pardon?

Finally, Professor Tribe assumes that the president’s crimes are not subject to state prosecution, for which a presidential pardon is ineffectual. In fact, ignoring the prospect of state prosecutions is perhaps the greatest vulnerability to Professor Tribe’s suggestion . . .

I think all of these arguments miss a central point. I don't think the Constitution's text precludes pre-impeachment indictment, but I think the Constitution's structure (as originally designed) precludes it as a practical matter.  First, as to text, Article I, Section 3, paragraph 7 seems to me to say only that if the President (or any federal officer) is impeached and removed from office, that person can still be criminally prosecuted.  That is, double jeopardy does not bar subsequent prosecution for the same offense that prompted the impeachment.  The text does not say anything one way or the other about whether criminal prosecution could precede impeachment.  Moreover, if Article I, Section 3 means that the President cannot be prosecuted prior to impeachment, it must also mean that no federal officials (including judges) can be prosecuted prior to impeachment.  (It does not say anything specific to the President.)  That reading seems at least somewhat unlikely.

I nonetheless agree with Andrew and Professor Bobbitt that the framers assumed a sitting President would not be prosecuted, at least by federal officials.  But Article I, Section 3 is not the reason.  Instead, that is a practical result of the original design, which placed all of the "executive Power" with the President.  Executive power, whatever else it includes, at minimum includes the power of prosecution.  Thus the President was given full control over federal prosecutions, including the power to decline to prosecute.  As a result, it would not have occurred to the framers that a sitting President would, in effect, prosecute himself.  (This assumption likely underlies Hamilton's comments in Federalist 69 and 77 that the President is subject to impeachment and then criminal prosecution).

The more difficult question is whether the President is subject to state criminal prosecutions.  Professor Bobbitt says "I cannot bring myself to believe that the U.S. Constitution would permit state grand juries to preempt the impeachment process by indicting presidents."  Perhaps, although Aaron Burr, as sitting Vice President, was charged at the state level after shooting Hamilton.  More importantly, if there is such a bar, it doesn't come from Article I, Section 3 (unless one thinks that no federal official can be prosecuted for a state law crime).


Eric Segall on Stare Decisis
Michael Ramsey

At Dorf on Law, Eric Segall: The Emperor's Stare Decisis.  From the introduction: 

On Wednesday of last week, Mike [Dorf] wrote a typically thoughtful post [Ed.: noted here] on the difficulties originalists (and others) have when determining proper standards for the Court to use when deciding whether to overturn prior cases. One of his conclusions, that "originalist acceptance of stare decisis very substantially constrains the role of original meaning in determining outcomes, even accepting the originalists' own premises," is I think exactly right. But Mike did not ask, nor try to answer, what I think is an antecedent question about the role of precedent in the Supreme Court: Does the doctrine exist at all apart from stylistic rhetoric that pops up from time to time in Supreme Court opinions? I think the answer to that question is important and obvious--no.

It is true that when the Court is asked to explicitly overrule a case, and the Justices want to, they will usually spend some time discussing a bunch of factors like reliance on the prior case or whether the original decision has been undermined by later cases before announcing the reversal. The dissent (there are almost always dissents in such cases) will then claim there were no "special reasons" for overturning the prior decision. These discussions are almost always simply after-the-fact rationalizations for conclusions reached on other grounds.

The reality, on the ground, is that whether by explicit reversals, or through slicing and dicing, or through subtle and clever factual and legal distinctions, the Court has reversed itself in virtually every major category of litigated constitutional law based on the values of the Justices sitting at the time. In my account below, I leave out the 4th through 8th Amendments because I am not an expert in those areas. This post is far more descriptive than I usually write, but at the end I'll make what I think are a few important substantive points and then pose a few questions. Nothing in this post suggests that lower court judges don't take vertical precedent seriously. As usual, I am writing just about the Supreme Court.


Lawrence Solum & Cass Sunstein: Chevron as Construction
Michael Ramsey

Lawrence B. Solum (Georgetown University Law Center) and Cass R. Sunstein (Harvard Law School) have posted Chevron as Construction on SSRN.  Here is the abstract:

In 1984, the Supreme Court declared that courts should uphold agency interpretations of ambiguous statutory provisions, so long as those interpretations are reasonable. The Chevron framework, as it is called, is now under serious pressure. Current debates can be both illuminated and softened with reference to an old distinction between interpretation on the one hand and construction on the other. In cases of interpretation, judges (or agencies) must ascertain the meaning of a statutory term. In cases of construction, judges (or agencies) must develop implementing principles or specify a statutory term. In cases that involve statutory construction, the argument on behalf of Chevron is very powerful; agencies have relevant comparative advantages in developing implementing principles. With respect to statutory interpretation, the argument on behalf of Chevron is more controversial. Those who reject Chevron in the context of interpretation should nonetheless accept it in the context of construction. The distinction between interpretation and construction explains some important cases in the 1940s and also in the post-Chevron era.

Intuitively, I'm more comfortable with "constructions" that (as here) result in deference to other parts of government than I am with "constructions" that result in courts unilaterally overriding the decisions of other parts of government.