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The End of the 2011 Supreme Court Term: Musings on a Dramatic Final Week

Dan Schweitzer, Supreme Court Counsel

We are only four days removed from the Court’s health care decision as I sit here writing. Passions still run high; the legal (and political) impact is still being assessed; and the wisdom of the ruling is still being debated. Meanwhile, Court watchers ─ and those interested in illegal immigration, juvenile justice, and the First Amendment ─ are sorting through the other decisions the Court issued last week. The Court’s actions the week of June 25, 2012 will ultimately spawn countless law review articles, essays, and books. Now, in early July, I can offer only musings. Here are a few of them:

● In April 2006, Chief Justice John Roberts ─ only seven months into his tenure ─ joined the four liberals then on the Court to produce a 5-3 win for a property owner named Gary Jones in the obscure case of Jones v. Flowers. Until his vote in the health care case, National Federation of Independent Business (NFIB) v. Sebelius, that was the last time the Chief Justice joined the four liberals on the Court to provide the decisive fifth vote. Perhaps the “experts” who failed to predict this would happen in NFIB can be excused.

● What accounts for Chief Justice Roberts’ vote in NFIB? Theories abound: he was pressured into it by critics; he was trying to protect the Court as an institution; he is saving the Court’s “capital” for striking down affirmative action next Term; and so on. Lacking any direct access to the Chief Justice’s heart or soul, maybe we should abandon the search for a motive and instead study the explanation he provided. Chief Justice Roberts stated that the Court owes “deference” to Congress, and therefore “every reasonable construction [of a statute] must be resorted to, in order to save a statute from unconstitutionality.” Thus, even though he believed “[t]he most straightforward reading of the mandate is that it commands individuals to purchase insurance,” it was “fairly possible” to read the statute as imposing a tax on those who do not ─ and that was good enough if the alternative was striking down a statute enacted by our duly elected legislature.

In other words, Chief Justice Roberts was exercising judicial restraint, which might be defined as deferring to the legislature in (at the very least) close cases, even when a strict application of your constitutional or statutory-construction theories might lead you to strike down a law. This exercise of judicial restraint was so striking because it is so rare these days. Justices with names like Harlan and Frankfurter were paragons of judicial restraint, deferring time and again to legislatures that adopted laws they thought misguided and offensive. Today, however, no Justice truly believes in the concept of restraint. The liberal Justices routinely strike down laws that offend their sensibilities (such as laws that discriminate against homosexuals, impose capital punishment on minors, or impose abortion restrictions), while the conservative Justices routinely strike down laws that offend their sensibilities (such as campaign finance, affirmative action, and gun control laws). Of course, both groups of Justices provide forceful exegeses on why the Constitution fully supports their conclusions. But rare is it that a Justice, in an important, ideologically charged case, says (in so many words) “because the law is unsettled, because it’s a close call, because the People should decide their fate, not this Court, I’ll defer to their elected representatives.” I don’t know whether Chief Justice Roberts reached the correct decision or not. But it is indeed exceptional these days for a Justice to vote against type in a major case.

● Some have puzzled over Justice Anthony Kennedy’s vote not merely to hold the individual mandate unconstitutional, but also to strike down the entire Affordable Care Act. What kind of centrist does that? The answer: a centrist like Justice Kennedy. As I’ve noted before, Justice Kennedy is a very different swing Justice than Justice Sandra Day O’Connor was. Justice O’Connor was an incrementalist, who would try to find narrow ways to decide cases. Justice Kennedy, by contrast, swings for the fences. He is not always with the conservatives, but when he is ─ for example, in Citizens United and Heller (the Second Amendment case) ─ he doesn’t hedge his bets. And when he votes with the liberals ─ such as in the various cases limiting imposition of the death penalty or the War on Terror cases ─ he also doesn’t hedge his bets. Justice Kennedy found deep constitutional flaws in the Affordable Care Act and voted to strike it down. That’s Justice Kennedy being Justice Kennedy.

● I have long said that, contrary to conventional wisdom, one usually can tell who will win a case based on how the oral argument went. That view took a real beating this Term. Judging by oral argument alone, one would have expected the federal government to lose the health care case 5-4; and to lose the Arizona immigration case by an even greater margin. Meanwhile, the oral argument in the Stolen Valor Act case (United States v. Alvarez) went swimmingly for U.S. Solicitor General Donald Verrilli ─ yet that was the one he lost last week. Also, after oral argument the government looked like the clear winner in the criminal law cases of Laffler v. Cooper, Missouri v. Frye, and Martinez v. Ryan. Yet the Court ruled for the defense side in each one. It’s time to stop counting those chickens too soon.

● This was also a tough Term for those who claim the Court is rigidly ideological, divided into two warring camps. The Court issued 14 5-4 opinions, only 3 of which divided on pure ideological lines, with the 5 conservatives on one side and the 4 liberals on the other side. By contrast, Justice Kennedy joined the liberals to form a majority in 5 cases; and the Chief Justice, of course, did so in the health care case. I’m not suggesting we naively ignore the Justices’ respective tendencies and backgrounds. But we shouldn’t be too quick to pre-judge how the Justices will vote in each case.

● The Court issued a split decision in the Arizona immigration case, unanimously upholding a key provision of the Arizona law but finding several other provisions preempted. It’s not clear which side of the immigration debate truly “won” the case. But there is one certain loser: the states in future preemption cases. Much of the decision in Arizona v. United States concerned immigration-specific matters, such as foreign policy considerations and the federal government’s longstanding role in deciding who may enter the country. Some sections of the decision, however, cited standard preemption principles ─ and did so in ways that may make it harder for states to fend off preemption challenges in cases having nothing to do with immigration.

In particular, the Court addressed whether the federal law penalizing employers for hiring illegal immigrants impliedly preempts an Arizona provision imposing sanctions on the employee side (i.e., making it a crime for an illegal alien to seek or engage in unauthorized work). The Court held that it does, finding that the federal law’s “comprehensive framework” and legislative history show that “Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment.” Using language that will surely be thrown against the states in the future, the Court stated that the “Arizona law would interfere with the careful balance struck by Congress[,]” and that “a conflict in the method of enforcement” of a common goal “can be fully as disruptive to the system Congress enacted as a conflict in overt policy” (internal quotation marks omitted). Sometimes hot-button cases produce language that has important consequences for lower-profile cases likely to arise in the future. That probably happened here, to the states’ detriment.

● The Arizona immigration case also highlights a troubling feature of the Court’s preemption docket: the Justices’ apparent result-oriented approach. As Judge Michael McConnell observed at the recent NAAG Summer Meeting, many of the Court’s recent preemption cases arose in the context of injured individuals suing businesses---and they produced predictable line-ups of the liberals plus Justice Kennedy (which I’ll call the “liberal bloc”) supporting the individuals and the conservatives supporting the businesses. For example, in Wyeth v. Levine the liberal bloc held that the comprehensive federal regime regulating prescription drugs did not impliedly preempt a state tort action claiming that a drug label contained an inadequate warning. The bloc relied on the presumption against preemption, and found it telling that Congress included a preemption provision with respect to medical devices, but not prescription drugs. The dissent of three conservative Justices, written by Justice Samuel Alito, said that the presumption against preemption does not apply in implied preemption cases, and ignored the medical-device express preemption provision.

In Arizona v. United States, most Justices switched sides. In finding the Arizona employee-sanction provision preempted, the liberals did not mention the presumption against preemption and argued their way around the presence of an express preemption provision that pertained to sanctions against employers, but not employees. Meanwhile, Justice Alito filed a dissenting opinion that relied heavily on the presumption against preemption and the inference that Congress acted intentionally when it expressly preempted state sanctions against employers but made no mention of state sanctions against employees. Only Chief Justice Roberts’ and Justice Clarence Thomas’ votes were consistent in the two cases; and the Chief Justice has hardly been a model of consistency in preemption cases. Justice Thomas is the sole Justice who votes consistently in implied (obstacle) preemption cases. And that is because, as is often the case with Justice Thomas, he has staked out a stark position that no one else on the Court has yet adopted: that “purposes and objectives” preemption is illegitimate because it is based on “judicially divined legislative purposes,” not “congressionally enacted laws.” (I should add that this is a position that 47 states, in their amicus brief in Wyeth v. Levine, urged all the Justices to adopt. One down, eight to go.)

● Finally, a few thoughts on the juvenile justice case decided last week. Lost a bit in the shuffle was the Court’s opinion in Miller v. Alabama, which held that sentencing a juvenile convicted of murder to life imprisonment without the possibility of parole is cruel and unusual punishment if the sentence was mandatory and didn’t allow the judge to consider the offender’s youth and background. Alabama (and Arkansas, in a companion case) staved off the broader position argued by the petitioners: that it is categorically unconstitutional to sentence a juvenile to life imprisonment without the possibility of parole. Instead, the Court held that “a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.” (It’s the harshest possible penalty in the wake of Roper v. Simmons, which held that it is unconstitutional to sentence juvenile murderers to death.)

● The Miller decision prompts numerous questions: First, what form must the sentencing hearing take? In other words, does it have to track the intricate procedures (often required by the Court) that apply in capital cases? Or is something less formal permitted? Second, does the decision apply retroactively to cases that are already final on appeal? Thousands of minors have been sentenced to life without parole for the crime of murder. Do states have to resentence all of them? And what should judges do if the legislature hasn’t yet amended the law, meaning the law doesn’t provide any sentence other than life without parole? Third, the Court expressed its expectation that it “will be uncommon” for juvenile murderers to be sentenced to life without parole following individualized hearings. How closely will the Court review such sentences and under what standard?

As is so often the case, a major ruling by the Court will have one certain consequence: a great deal of future litigation over its meaning and application.

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