When someone has a hammer, every problem risks looking like a nail. And when a legal scholar has a theory, every case risks becoming an application of it.
With that disclaimer in mind, I think that Pulsifer v. United States, the Supreme Court’s recent statutory interpretation chestnut, nicely illustrates my view (elaborated here) that statutory interpretation is largely permissive as well as structured by three “basic rules.”
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Last week, I had the honor of giving the keynote address at the National Conference of Constitutional Law Scholars, which was hosted by the University of Arizona James E. Rogers College of Law and its Rehnquist Center.
My topic was “the One Big Question” currently shaping legal culture.
I’ve now posted my prepared remarks. Here’s the abstract I wrote for SSRN:
Today, legal culture is shaped by One Big Question: should courts, particularly the US Supreme Court, have a lot of power? This question is affecting the legal views variously maintained by conservatives and liberals, not just in court but also in the academy.
Perhaps most fundamentally, the right (because it is newly in power) is becoming less formalist, and the left more so. In addition, the legal left and right are repositioning themselves, or trading places, with respect to topics like interpretive method, deference to agencies, and standing.
This dynamic helps to reveal the underlying structure of the law. And greater appreciation of that underlying structure can benefit legal culture by fostering respect, humility, and toleration.
Here’s an excerpt from the address:
[I]t turns out that many legal issues are downstream of the One Big Question. Both the Left and the Right are accordingly shifting positions in light of their new answers to that question.
Let me give you a few examples, all centering on Justices Scalia and Kagan.
First, textualism. When Justice Scalia was an insurgent force in the federal judiciary, being a textualist meant shackling the purposive judicial activism characteristic of the 1970s. Today, by contrast, Justice Kagan often invokes textualism to take the Supreme Court’s conservative majority to task. Meanwhile, conservative legal intellectuals are increasing talking about moving “beyond textualism.” Unwritten law is now hot in conservative legal circles.
Second, agency deference. Justice Scalia supported judicial deference to agencies, not just under Chevron but also under principles like Auer deference. But that process started when conservatives were a minority force on the judiciary and President Carter’s appointees led the DC Circuit. Today, with conservatives in command of the courts, Scalia’s successors have turned sharply against agency deference. Meanwhile Justice Kagan fights to preserve agency deference in cases like Kisor and, this term, in Relentless and Loper Bright.
Finally, standing. Scalia strove to tighten up standing as a way to curb liberal judicial activity. Profligate standing rules in Establishment Clause cases were perhaps his central example, as they facilitated what Scalia viewed as overly vigilant restrictions on religiosity. But conservative litigants now want access to the federal courts. They know that, under new case law, they can receive relief or exemptions from many regulations. So it is now the Left who has a special interest in enforcing or tightening up justiciability principles. Conservatives, by contrast, are tempted to fling open the courthouse doors.
A single Supreme Court case recently illustrated all three of these trends. In the student loan case Biden v. Nebraska, several states argued that the U.S. Secretary of Education lacked statutory authority to cancel certain student debt. Three questions arose. What did the statute mean? What attitude should the Court take toward the Secretary’s exercise of administrative authority? And, should the states have standing to challenge the loan forgiveness measure—even though student debt relief had no direct effect on the states’ treasuries?
The Court ended up divided 6 to 3. Far from deferring to the Secretary, all six conservative justices invoked the atextual “major questions doctrine” to give narrow meaning to the statutory text. The conservatives also found standing on the theory that a loan service provider with no objection to the loan forgiveness plan was really part of a state; therefore, the servicer’s lost business gave the state standing to challenge the entire nationwide loan forgiveness program.
By contrast, all three liberal justices invoked textualism, exhibited respect bordering on deference toward the executive agency’s work, and rejected standing as too attenuated and artificial to justify nationwide relief. In other words, the liberal justices were much more textualist, far more deferential to the executive branch, and markedly stricter when it came to standing than their conservative colleagues. This alignment of votes and views represents an almost complete inversion of the 1980s.
A similar dynamic is visible in many other legal debates. …
I got a lot of helpful feedback—and some criticism!—from participants at the Conference. I hope to build on these themes, so added comments are most welcome.
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Denotive language formally indicates something about how a judge has voted in a particular case. In an earlier post, I distinguished judgment-denotive language, such as “dissenting from the judgment,” from opinion-denotive language, such as “concurring in Part I of the Opinion of the Court.”
But there are other, less common types of denotive language. The most salient example is “dubitante,” which sometimes presents as highly formal. For example, “Friendly, J., (concurring dubitante)” is a conventional citation in reported cases. We might call this type of expression confidence-denotive language.
In addition, somewhat less formal expressions indicate a judge’s emotions. The most familiar example is the quasi-formal expression of respect that frequently opens or concludes dissents, such as: “I respectfully dissent.” We might label this type of expression emotion-denotive language.
Last week, Justice Sotomayor concluded a capital dissent with language that was both confidence- and emotion-denotive: “With deep sadness, but commitment to the Eighth Amendment’s protection against cruel and unusual punishment, I respectfully dissent.” Smith v. Hamm, No. 23–6562.
This sort of language, while extraordinary, is more common and diverse than you may think. It may also have legal significance. And it sheds light on judging’s fundamental nature.
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Courts care about the difference between judgments and opinions, yet that boundary often blurs in significant ways. Consider the denotive language that prefaces most judicial opinions, such as “concurring,” “concurring in the judgment,” or “dissenting.” This kind of language not only indicates how a justice has voted with respect to the judgment in the case (judgment-denotive language), but also locates the judge’s opinion, if any, among other opinions (opinion-denotive language). In a legal system that relies on preclusive judgments and precedential opinions, denotive language is key to the everyday operation of courts.
On reflection, however, denotive language is often quite confusing—or confused. This post focuses on a recent and unusually interesting use of denotive language—namely, Chief Justice Roberts’s separate opinion in National Pork Producers Council v. Ross (2023). In brief, the Chief denoted his opinion as “concurring in part and dissenting in part,” but he was simply dissenting with respect to the Court’s judgment. The Chief’s denotive language may have been a bid to strengthen his opinion’s claim to precedential authority. And it could also reveal—or encourage—a view of the judicial role grounded in law-declaration.
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In public remarks last year, Justice Kagan took a position on what the law is not. “If one judge dies or leaves a court, and another judge comes in, and all of a sudden the law changes on you,” Kagan argued, then, “you know, that just doesn’t seem a lot like law.” This basic view is widespread, even commonplace.
Yet we all know that changes in judicial personnel do in fact yield major legal transformations. So while Kagan’s comment may reflect an attractive moral view of what the law ought to be, it doesn’t well describe what law actually is.
In a draft article (“A Law Unto Oneself: Personal Positivism and Our Fragmented Judiciary”), I take seriously the idea that the personal rules of individual judges constitute the law. This point is usually covered over by other features of legal practice, such as frequent agreement among judges and personal rules directing convergent behavior. But recent events help reveal the law’s personal foundations.
Seeing the fundamental role of judges’ personal rules is a bit like removing a computer’s casing and looking at the wires and circuit boards that lie inside: the appearance may be strange—it “just doesn’t seem a lot like” a computer, to use Kagan’s words—but the internal workings are closer to the computer’s essence.
To a great extent, legal practice already recognizes as much. In cases on everything from the Second Amendment to Chevron deference, sophisticated advocates home in on the expressed views of specific justices—even if those views are found in lower court rulings, dissents, or law review articles. Court opinions often follow the same sources. And commentators frequently measure the rise of methods like textualism and originalism by counting heads.
This personalized view of the law addresses some of the most fundamental controversies facing our legal system. It counsels that there is still genuine law in contested cases, that the law of the United States is now largely defined by a conflict between two groups of judges, and that court reformers should harness judicial individuality rather than ignore it.
While this project has already benefited from a lot of comments and conversations, it is still in draft. Additional thoughts are most welcome!
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How can Supreme Court ethics reform respect judicial independence but also have teeth? Ian Ayres and I have a proposed answer. Here are some excerpts from our post over at Balkanization:
In the wake of recent controversies and apparent ethical lapses at the Supreme Court, the justices have now agreed to abide by a “code of conduct.” But while this new code outlines laudable principles, it conspicuously lacks any enforcement mechanism. We suggest that the justices rectify that shortcoming and, in the process, solidify the federal judiciary’s commitment to ethical behavior. In brief, the justices should have to resign if a bipartisan group of federal judges so requests.
…
To illustrate, a federal statute might create a Supreme Court ethics council comprised of, say, 20 randomly selected lower court judges, each with a two-year term. The resulting council would reflect the bipartisan makeup of the federal judiciary. To further protect against political favoritism, the council might be able to call for a justice’s resignation only if more than, say, three-quarters of its membership so voted.
…
A more serious objection is that a justice could attempt to renege on a conditional resignation. But the commitments could be rendered binding by court rules or a federal statute. Doing so wouldn’t transgress the Constitution, which allows federal judges to leave office through resignation, including resignations conditioned upon future events. And the kind of resignation that we envision would only promote the constitutional values of judicial independence and impartiality.
This post is itself cross-posted from Prawfs.
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Clarity is often thought to be the cardinal virtue of judicial writing, but judges—like all authors—sometimes make use of strategic ambiguity, too. A fascinating example appeared near the end of the Supreme Court’s most recent term. Appropriately enough, the occasion was an exchange on the propriety of disparaging rhetoric.
Start with this passage, which appears near the end of the Chief Justice’s opinion for the Court in Biden v. Nebraska:
It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary. …. Reasonable minds may disagree with our analysis—in fact, at least three do. See post, p. ___ (KAGAN, J., dissenting). We do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country.
The Chief was expressly concerned with “some recent opinions,” but he chose to make this point specifically in Nebraska. Why? The answer may partly have to do with the fact that Justice Kagan authored the dissent in that case. Like the Chief himself, Kagan is an institutionalist. And she had recently heaped collegial praise on the Chief at the Friendly Medal ceremony (see here). The Chief might therefore have expected Kagan to be especially open to a call for mutual respect.
So, how did Kagan react? Here is the key passage:
From the first page to the last, today’s opinion departs from the demands of judicial restraint. At the behest of a party that has suffered no injury, the majority decides a contested public policy issue properly belonging to the politically accountable branches and the people they represent. In saying so, and saying so strongly, I do not at all “disparage[ ]” those who disagree. Ante, at 26. The majority is right to make that point, as well as to say that “[r]easonable minds” are found on both sides of this case. Ante, at 25. And there is surely nothing personal in the dispute here. But Justices throughout history have raised the alarm when the Court has overreached—when it has “exceed[ed] its proper, limited role in our Nation’s governance.” Supra, at 1. It would have been “disturbing,” and indeed damaging, if they had not. Ante, at 25. The same is true in our own day.
My main interest is in the portion of this passage that I have underlined. What is happening in those sentences?
My initial read was that Kagan was being somewhat conciliatory, consistent with her remarks at the Friendly Medal ceremony. While obviously continuing to press a serious disagreement, she nonetheless wanted to acknowledge the Chief’s perspective (“The majority is right …”) while exhibiting a degree of mutual respect. On this reading, Kagan wanted to signal “disagreement,” not “disparagement.” I know that I am not alone in having come away with that impression.
However, I have become aware of another, almost diametrically opposed reading. Instead of being conciliatory, Kagan could be read as ridiculing the Chief, sarcastically mocking his schoolmarmish attempt to police her rhetoric. The fact that the terms “disparage” and “reasonable minds” are placed in quotation marks arguably supports this reading. (To my own surprise, I couldn’t help but put these words in air quotes when reading this passage aloud.)
I’ve now asked more than a few people about this passage. These folks include law students, professors, and practitioners. My casual polling suggests a roughly even split across all these groups, with some views in between.
What can we learn from this? One possibility is cautionary. Writing is hard and easily misunderstood. Tone is especially elusive when it comes to the printed word, and readers are apt to ascribe whatever intonation they expect. Here, Kagan may have intended to convey either the first reading or the second one (or something else). But, if so, that effort proved less than perfectly successful.
Another possibility, however, is more interesting. Could the genius of this passage lie precisely in the fact that it is subject to such divergent readings?
Imagine a hypothetical justice in Kagan’s position here. The imagined dissenter would have a strong interest in placating the Chief, to say nothing of other members of the majority coalition. Further, the dissenter might want to preserve public respect for the Court, which is both an important institution and the main source of the dissenter’s own prestige. At the same time, the dissenter would not be eager to bow to a call for civility. The dissenter might to want to stoke outrage regarding the majority, avoid diluting her own opinion’s rhetoric, and promote her personal reputation among the Court’s critics.
Ambiguity allows the dissenter to accomplish all these goals. People like me and, perhaps, the Chief read the passage as conciliatory because we expected conciliation. By contrast, others read it as sarcastic because they expected sarcasm. Readers may not even notice the ambiguity. And, when the ambiguity remains invisible, it operates with maximal effect. These reader-specific responses allow a strategic writer to have her cake and eat it, too.
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Last week, I blogged excerpts from my forthcoming article over at the Volokh Conspiracy. Here are the posts:
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I have a new draft paper raising the possibility that we are living through the beginning of a standing realignment, as evidenced by the discourse on 303 Creative v. Elenis. I also discuss recent standing cases such as Biden v. Nebraska, where liberal justices opposed standing and conservative ones supported it.
Here’s the intro:
303 Creative LLC v. Elenis was a major ruling on free expression and anti-discrimination law, one whose implications are both unclear and potentially troubling. Yet an enormous amount of critical discussion about the case has focused on its procedural aspects rather than its merits holding.
For jurisdictional issues like standing to consume public attention is remarkable, especially when there was so much else to talk about and criticize at the Court that week, to say nothing of the merits holding in 303 Creative itself. Something interesting is going on here.
I will try to untangle the different threads of procedural criticism regarding 303 Creative. My basic conclusion is that, under existing case law, the Court had ample authority to reach the merits in 303 Creative. Moreover, I see no clear reason why that conclusion is undermined by any post-decision factual discoveries to date, or any other objection.
In short, there is no procedural scandal here. Declining to reach the merits in 303 Creative would have changed governing precedent and legal practice much more than what the Court actually did.
The discourse surrounding 303 Creative is especially remarkable because the left has long been associated with permissive principles of federal court jurisdiction. Left critiques of 303 Creative thus suggest the possibility of a broader standing realignment, in which the legal left becomes jurisdictionally hawkish.
Standing realignments have happened before. As power at the Supreme Court has shifted right and then left, dissenters have pressed jurisdictional limits on federal court authority. Now that the Court has shifted rightward again, we may be on the cusp of another ideological reversal on federal court jurisdiction.
In that respect and others, the surprising discourse on 303 Creative may be a harbinger of cultural and legal changes yet to come.
The draft essay (99 Notre Dame L. Rev. Reflection (forthcoming 2023)) is accessible here.
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The Supreme Court’s decision in Students for Fair Admissions v. Harvard will be remembered as a major decision striking at affirmative action in higher education, but the case’s footnotes tell an additional story—about the hollowness of the justices’ recusal practices.
Justice Ketanji Brown Jackson recused from the Harvard case because of her past service on that university’s Board of Overseers. Yet the first page of her dissenting opinion is prominently captioned with the Harvard dispute’s full name and case number. Citations to the Harvard case also appear at the top of every subsequent page of Jackson’s opinion.
Chief Justice John Roberts’s opinion for the Court tells a similar story. Like Jackson, Roberts leads off with a caption identifying the Harvard case. And Roberts includes several footnotes and passages that spar with Jackson, reciting her arguments and offering counterpoints. So anyone who read drafts of the Harvard decision had to encounter Jackson’s criticisms.
These facts make it hard to deny that Jackson participated in the consideration of the Harvard case. Again, Jackson read a draft of the majority opinion in that case. She wrote an opinion criticizing the core reasoning of the majority’s draft. And the final version of the opinion for the Court in the case expressly responds to her objections.
But not so fast! The Court resolved two related disputes in a single opinion—one involving Harvard and another involving the University of North Carolina. And the various opinions state, in brief notes, that Jackson “took no part in,” or “did not participate in,” the “consideration or decision of” the Harvard case. Instead, Jackson dissented only as to the UNC dispute. Jackson’s opinion also avoids talking explicitly about Harvard, instead focusing on UNC.
Yet the fact that Jackson did not write explicitly about Harvard shows, at most, that she did not participate in every aspect of the Harvard case’s “consideration.” Her dissent addressed only the case’s core legal issues, rather than factual points. But both recusal principles and Jackson’s disclaimer promise something more—namely, withdrawal from the entire case.
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Re’s Judicata 