Many commentators have discussed whether President Trump could lawfully fire Special Counsel Mueller, despite a DOJ regulation providing that the special counsel may be removed only for cause by the Attorney General. But even if the president lacked lawful authority to remove Mueller, would any meaningful judicial remedy follow? Remarkably, the DC Circuit recently discussed this general issue during the en banc oral argument in the CFPB removal case.
Category Archives: Judicial Decision-making
Yesterday, Morales-Santana held that an individual had been denied citizenship based on a gender-discriminatory law that violated equal protection. Yet the only practical effect appears to be that, in the future, even fewer people will obtain citizenship. That outcome has already prompted a lot of commentary, including from Howard, Ian, and Will. Here, I add two points. First, the Court’s exclusively “prospective” remedy appears not to have fully remedied the asserted discrimination, even on the Court’s theory. Second, the Court’s limited grant of relief interestingly blurs the traditional distinction between precedent and judgment.
The Supreme Court sometimes abandons longstanding or widespread readings of its own precedents by blaming a dissenting opinion. “Our previous majority was fairly clear,” the Court effectively says, “except that the dissent in the relevant case cast a spell over readers, leading them astray.” This practice of blaming dissents is both interesting and consequential, appearing for example in Gant as well as the recent decision in Lightfoot.
Justice Elena Kagan recently gave the “Scalia Lecture” at Harvard Law School. The event, which is visible online, consisted of a conversation between Kagan and Professor John Manning. For those interested in interpretive trends at the Court, this video is worth watching. As a scholar-jurist, Kagan speaks both broadly and specifically about her approach to text. And besides being erudite and accessible, the conversation manages to be charming, too.
Kagan’s lecture reinforces a conventional wisdom on textualism’s recent success. Early on (9:10), Kagan beautifully describes the Scalian turn in statutory interpretation while acknowledging its incompleteness. Over time, anti-textualist views have fallen away, so that the center of gravity has moved toward Scalia. Yet Scalia still lies near one end of a spectrum. Both Kagan and Manning adduced evidence of this shift. But the most powerful proof of this claim is the lecture itself. When Kagan, a recent democratic appointee to the Supreme Court, gives a “Scalia Lecture” at Harvard Law School and says (8:25) that “we’re all textualists now,” she has already gone a long way toward proving that point.
But even Kagan’s nuanced lecture, like the conventional wisdom, may give an exaggerated impression of textualism’s ascendance. While certain strong versions of purposivism are all but vanquished, the Court’s most recent term and even Kagan’s own comments suggest that a more moderate, evolved form of purposive reasoning is alive and well.
Fisher v. University of Texas, raises an important question about the constitutionality of affirmative action in university admissions, but it also poses a jurisdictional riddle. When Fisher came to the Supreme Court a few years ago, there was fairly extensive debate, including at oral argument, as to whether the Court had jurisdiction to hear the case. But in ruling in favor of the plaintiff and remanding the case, the justices said not a word about jurisdiction. Last year, I wrote a post asking whether Fisher I should be understood as a precedent on jurisdiction. Now the case is back at the Court, and UT is again pressing jurisdictional arguments. Will these renewed arguments have any sway, and should they?
Can constitutional theory be both persuasive and determinate? A recent, must-read exchange between Michael Dorf and Larry Solum implicitly raises this question. In the exchange, Dorf ultimately posits the “Brown test,” which demands that any constitutional theory must make possible the result in Brown v. Board, but need not require that result. The exchange (which Paul Horwitz has already collected and commented on here) illustrates that there are importantly different ways of assessing a constitutional theory’s determinacy. Below, I outline relevant features of the Dorf/Solum posts, explore the relationship between theory and determinacy, and suggest a reformulation of the Brown test. In short, I suggest that evaluations of constitutional theories should emphasize what the theories most encourage, as opposed to what is possible, necessary, or reasonable under those theories.
Debates over signaling, or unconventional precedential guidance to lower courts, played an important role in the same-sex marriage litigation leading up to Obergefell. Now, signaling is back thanks to religious accommodation litigation concerning the Affordable Care Act’s contraception mandate. Remarkably, lower courts have started to develop case law on whether and when signaling is appropriate.