Near the start of its new term, the Supreme Court will hear argument in Heien v. North Carolina, which poses the question whether a police officer violated the Fourth Amendment when he performed a traffic stop based on a mistake of law. When the case was granted, I suggested that Heien involves the “other” rule of lenity–that is, the notion that government officers (not criminal defendants) should be given clear notice before suffering personal consequences for having performed illegal action. The briefs in the case have now been filed, and they contain a surprise: a significant chunk of the briefing revolves around founding-era customs law. That history provides a fascinating point of comparison for current law and practice.
In the Supreme Court’s much-discussed Hobby Lobby decision (decided at the end of June), the Court addressed whether for-profit corporations should be able to assert claims under the Religious Freedom Restoration Act (RFRA). The majority answered “yes” for a variety of reasons, mostly involving the statute’s text and history. But at one juncture, the majority and dissent also jousted over a pre-RFRA decision called Gallagher v. Crown Kosher Super Market. In the opinion of the Hobby Lobby majority, Gallagher “suggests, if anything, that for-profit corporations possess [free exercise] rights.”
Gallagher is a remarkable decision. In short, a plurality of the Court assumed standing before reaching the merits—contrary to the general rule later established in Steel Co. v. Citizens for a Better Environment. And, almost as remarkably, both the majority and the dissent in Hobby Lobby appear to be in denial about it. Hobby Lobby thus represents an interesting example of the Court’s willingness to engage in doctrinal revisionism. And, on inspection, the Court’s revisionism could have been done better.
One of the abiding issues in standing doctrine is whether federal courts should care when legal violations seem to produce no viable plaintiffs. This issue has been particularly salient in debates about secret government surveillance. In recent weeks, yet another surveillance program has started to come into view, and commentators are again wondering whether anyone can challenge the program in court. What’s perhaps most interesting about this latest round of the controversy is that both sides can plausibly rely on the Court’s most recent decision on the issue.
Runyon v. United States is a pending capital case in which the defendant has filed for cert and the United States sought eleven extensions of time before filing its brief in opposition earlier this month. As Amy Howe observed on SCOTUSBlog, the government’s highly unusual series of extensions delayed the Court’s consideration for almost a year.
Runyon is notable in part because it involves the interaction of prejudice in two senses—social and legal. In other words, Runyon asks whether prejudice in the sense of legal injury resulted from the government’s use of prejudice in the sense of social stereotypes.
The Supreme Court is in recess, so it seems like a good time to raise a boring but important point of judicial administration: the need for public access to court filings.
I think that everyone whose work involves the Court—and there are a lot of us—has at one time or another struggled to understand why the Court doesn’t have a system like PACER. For those who don’t know, PACER has for many years allowed the public to access filings made in the federal district courts and courts of appeals. True, PACER is imperfect in many ways, including because it charges fees for most services. Still, PACER is clearly much better than nothing. Yet no such system exists in the highest court in the land.
The Court’s recent order in Wheaton College v. Burwell raises a lot of questions about religious liberty, but it also raises a basic procedural question: what standard of review did the Court apply? Justice Sotomayor’s powerful dissent takes the Court to task for not applying a very high “indisputably correct” standard, but the Court appears to go even further. Whereas a district court must normally find a likelihood of success on the merits before issuing preliminary relief, the Court (or, at least, a plurality) declares that “this order should not be construed as an expression of the Court’s views on the merits.” This apparent agnosticism is quite anomalous.
One of my favorite fallacies is the “tu quoque” or “you, too!” fallacy – that is, the argument that a proposition is wrong because it’s advocated by someone who previously said the opposite. An accusation of tu quoque may demonstrate inconsistency, but it doesn’t prove much else.
In that spirit, I’d like to make a tu quoque charge of my own – against Justice Ginsburg.