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.
Every now and then, law reviews take heat for being not just turgid and boring but useless as well. Given that widespread lament, it’s worth noting how frequently recent Supreme Court opinions have been drawing on law reviews — and I’m not just talking about yesterday’s cite to a certain Professor Elena Kagan.
There’s a lot to love in Riley v. California, and privacy specialists will be celebrating this one for a long time. In a nearly unanimous opinion packed with references to gigabytes, apps, and the cloud, Chief Justice John Roberts proved that the Justices get it. They get that digital technologies are different from anything our culture has seen before. They get that people are using those technologies in a million dynamic ways that were unimaginable a generation ago. And they get that, in at least some contexts, the Old Rules need to change. In 1973, United States v. Robinson established that police have automatic, categorical authority search the entire person of an arrestee. Today, that rule doesn’t apply to cell phones. Instead, police must get a warrant. But that’s just the tip of the iceberg. Riley will be remembered as the inauguration of a new era of Fourth Amendment doctrine not so much because of its specific holding, but rather because its reasoning clears the way for even more doctrinal change.
At this time of year, oral arguments are long over at the Supreme Court, but the justices nonetheless convene to announce opinions from the bench. This practice is unusual in the US judicial system. Federal courts of appeals, for example, do not orally announce their opinions. Moreover, the parties whose interests are being adjudicated have no way of knowing when their cases will be announced and so are rarely in attendance. Yet, tomorrow, the justices will ascend the bench anyway in order to read summaries of the Court’s published opinions and, perhaps, salient dissents. Why would they do this? One important reason is to influence the public. Through opinion announcements, the normally apolitical Court sometimes acts much like a political institution — with all the benefits and risks that that role entails.
Today’s decision in Utility Air Regulatory Group v. EPA partially sustained and partially invalidated a major greenhouse gas regulation. In doing so, the Court passed up an opportunity to clarify the famous and deceptively familiar deference inquiry established in Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc. The question is whether Chevron (i) requires, (ii) forbids, or (iii) permits judicial decisions that uphold agency interpretations as not just reasonable, but mandatory. This issue was once thought to have been answered by Chevron Step 1, which seemed to require judicial review for mandatoriness. In UARG, however, the familiar Chevron Step 1 is mostly absent from the scene — even though the Court expressly considered the possibility that the agency’s reading was “compelled,” or mandatory.
The best explanation for UARG is that the Court views the traditional Chevron Step 1 inquiry into mandatoriness as optional. In many cases, the only relevant Chevron question is whether the agency has acted reasonably. That is particularly true when the agency reading is invalidated as unreasonable. When upholding agency interpretations, however, it sometimes makes sense for a court to go further and opine that the agency’s reading is not just reasonable, but mandatory. The upshot is that what used to be called “Chevron Step 1″ has effectively become an optional additional step. In this respect, Chevron resembles modern qualified immunity doctrine, which always asks whether the challenged governmental action was reasonable, but also gives courts discretion to reach the merits.
The Roberts Court has given us a lot of interesting uses of precedent, including a proliferation of doctrines that purport to dilute the power of stare decisis. The upshot is that the familiar, old-school divide between precedent and dictum has given way to a complex precedent spectrum. Below are a few examples, as well as some misgivings about them.