(Morbid) SCOTUS Humor!

Here's some SCOTUS humor from the satirical geniuses over at The Onion. Thanks to T.N. for the tip.

Utah Enlists Former Michigan SG For Same-Sex Marriage Appeal

Per SCOTUSBlog, the Utah Attorney General has just asked Justice Sotomayor to stay a federal district court's ruling making interim same-sex marriages "forever valid" in Utah. On the brief is John Bursch, the former Michigan Solicitor General. Bursch argued before SCOTUS 8 times during his tenure as state SG, and argued 12 times in the Michigan Supreme Court. Bursch is listed as a "Special Assistant Attorney General." He is now in private practice at Warner Norcross & Judd, where he co-chairs the appellate practice. Here's a The Salt Lake Tribune article discussing Utah's decision to bring in outside counsel to litigate the case.

This move reminds me a bit of BLAG's decision to bring in Paul Clement on Windsor, or the multiple states that have relied on former Kansas Attorney General Kris Kobach to write and defend immigration laws. This is hardly unusual in today's day and age (Florida brought in Greg Garre to litigate two criminal cases last Term), but we might wonder why states with their own SGs feel the need to bring in outside counsel. (BLAG's decision was of course different, since President Obama had ordered General Verilli not to defend DOMA on appeal--so outside counsel there was necessary). Bursch and his team reportedly cost Utah taxpayers $300,000 to litigate in the Tenth Circuit. 

I can certainly understand the decision to bring in expert counsel when a party doesn't have experts of its own (I wrote a law review note on this topic). But you'd hope that a state SG is an expert, otherwise why was he appointed in the first place? 

That might explain why in Florida v. Hall, Florida's most recent foray up to the Supreme Court, the state was represented by Florida Solicitor General Allen Winsor, not outside counsel. (For a long time, I wasn't quite sure what the Florida Solicitor General's job duties were, given that he wasn't actually arguing in the Supreme Court. As it turns out, half of the Florida SG's annual salary of $165,000 is paid by the University of Florida Law School, where the SG serves as a professor. But now we know that he is a real litigator as well.) 

* * *

Fun Fact: Bursch has also received the dubious honor known as the Thomas M. Cooley Law Review "2014 Distinguished Brief Award." Presumably this means that he has a large library and large first-year entering class.

A Hobby Lobby Thought Experiment

After yet another conversation with a friend debating whether Hobby Lobby marks a "downtrend in women's rights," I crafted the following Hobby Lobby thought experiment:

Imagine that a Republican Congress passes a law that requires home insurance companies to reimburse any homeowner who chooses to purchase a handgun for purposes of home self-defense. Congress reasons in the legislative history (rightly or wrongly) that this rule will reduce the incidence of home invasions, with resulting reverbations for the national economy. At the same time, there exists a small, local home insurance company that has enshrined in its corporate charter its founders' religious principles of strict non-violence. When the law is passed, this local insurer files a RFRA claim in federal district court, claiming that its religious liberty is violated because the law forces it to do that which violates its religious principles: Provide free guns to the public. 

If the Supreme Court later struck down the federal free-handguns-for-homeowners mandate as applied to conscientious religious objectors, would anybody be claiming that Americans' right to own guns was on a "downtrend"?

I think not. Well, perhaps certain extreme right-wing groups would make a stink about this. But they would be as drastically wrong as the Supreme Court's current naysayers, who claim that Hobby Lobby has anything to do with women's rights. 

(Note: The insurance company in my thought experiment is in a slightly different posture than Hobby Lobby and Conestoga Woods (who were not insurers but companies compelled by statute to offer the offensive insurance), but that hardly matters.)

Jail Cell Not A Public Place (Maybe)

The Third District Court of Appeal decided Taylor in the defendant's favor today, at least on the indecent exposure ground. The question in the case was whether a county jail inmate who exposes himself while in a jail cell does so in a "public place" and therefore commits indecent exposure. Here's my original post on the case, and here is the court's opinion.

Note that the opinion doesn't acknowledge that this happened in a jail cell. What we do know, however, is that courts should apply the definition of "public place" that appears in the jury instruction (Instruction 11.9, defining a "public place" as one that was "intended or designed to be frequented or resorted to by the public"). While we originally argued that it was a matter of common sense that the jury instruction definition was binding, in the future defendants can cite Taylor for that proposition.

It remains to be seen how the court will interpret the phrase "the public." I argued at oral argument in Taylor that "the public" means "people as a whole" (as defined by Merriam-Webster's, for instance) and therefore would not encompass a jail cell even though individual members of the public, such as jail guards, may go there. The court didn't need to reach that question in this case, since it apparently found that there was an insufficient evidentiary record under any interpretation of "the public."

REPOST: A Clever Catch By Professor Rosenkranz

Over at VC, Nicholas Quinn Rosenkranz observes that Justice Breyer snuck in a "gratuitous citation" to Missouri v. Holland in his opinion for the Court in Noel Canning. Slip op. at 41. I think this was a very clever catch. Professor Rosenkranz wonders at the reason for the citation, which comes conspicuously on the heels of the Court's narrow decision in Bond v. United States (in which the Court sidestepped the question whether Holland should be overturned). Rosenkranz write:

Is Justice Breyer quoting Missouri v. Holland to signal that, in his view, Holland does and should remain good law? Is he worried that its days may be numbered? Is he testing to see whether Justice Kennedy would balk at the cite?

If I were a Justice who wished to preserve Holland’s validity going forward, I’d be sure to cite it as many times as possible. That way, when the next candidate for overruling it comes along, the Solicitor General will be able to write: “Indeed, this Court has continually relied on Holland, and has cited it in X number of recent opinions.”

Justice Breyer's Functionalism On Display In Noel Canning

Justice Breyer is the Supreme Court's resident functionalist, and that functionalism is on full display in his recent opinion for the Court in NLRB v. Noel Canning. 

Granted, some degree of functionalism is to be expected when interpreting a clause that the Framers obviously intended would serve to maintain a functioning government during "the Recess of the Senate," which in 1791 was a far lengthier period of time than today. But Justice Breyer's majority opinion goes beyond the degree of functionalism that was actually written into the Constitution. As he conceded, his was not the most "natural" reading of the clause.

Perhaps the most striking thing about the opinion is Justice Breyer's willingness to synthesize a very broad spirit-of-the-law rule (that the purpose of the clause was to allow effective federal governance) from a very narrow historical context (given the then-very-long Senate Recess, a recess appointments power was necessary). Breyer then divorces that purpose from its context, and applies the purpose to novel factual circumstances in the year 2014. 

Here are a few examples of Breyer's functionalism in action:

1. "The question is not: Did the Founders at the time think about intra-session recessess? Perhaps they did not. The question is: Did the Founders intend to restrict the scope of the Clause to the form of congressional recess then prevalent, or did they intend a broader scope permitting the Clause to apply, where appropriate, to somewhat changed circumstances?" Slip op. at 16-17.

Note: Two things about this paragraph. First, it seems plain that Congress did restrict the scope of the clause when it used the phrasing "the Recess of the Senate." Note that Congress did not use the phrase "a recess." That alternate phrasing (the indefinite article "a" and a lowercase "r") would suggest that there could be more than one recess. Second, how does Justice Breyer think that we can discern "where" a broader scope is "appropriate"? Surely, the Framers did not leave us to simply guess at what is or is not appropriate, especially when it comes to a power as significant as the appointments power, which generally is to be strictly governed by advice and consent.

2. In explaining that recesses shorter than 10 days presumptively do not fall within the ambit of the clause: "The lack of [historical] examples suggests that the recess-appointment power is not needed in that context." Id. at 20. 

Note: The scope of the clause is apparently governed by when and when not the power to appoint during a recess has historically been needed. Again, Justice Breyer treats the clause as a matter of convenience. But a question of constitutional interpretation is not generally decided based on whether a particular reading is needed. Were it otherwise, Carol Anne Bond could be prosecuted by the federal government because the Pennsylvania government was unwilling to do so, thereby creating a need. 

3. "We add the word 'presumptively' to leave open the possibility that some very unusual circumstances--a national catastrophe, for instance, that renders the Senate unavailable but calls for an urgent response--could demand the exercise of the recess-appointment power during a shorter break." Id. at 21.

Note: Because Justice Breyer's reading of the clause is not tethered to any textual anchor, he is free to preserve avenues for expanding the clause's scope in the event that a broader use of the recess-appointment power becomes necessary.

4. On whether the text permits his interpretation: "We believe that the Clause's language, read literally, permits, though does not naturally favor, our broader interpretation." Id. at 22.

Note: Presumably this means that the text naturally favors the dissent's reading. But because the spirit of the law demands a broader interpretation, the less natural reading is here appropriate.

5. Again on textualism: "In any event, the linguistic question here is not whether the phrase can be, but whether it must be, read more narrowly." Id. at 23 (all emphasis above is mine).

Note: When I read this, I was reminded of the Rule of Lenity in criminal cases. Except here Justice Breyer applies a rule of lenity for functionalists: If the text could conceivably allow it, interpret it in the way that favors your policy preferences.

Justice Breyer is hardly alone in the extent of his functionalism. I point out his Noel Canning opinion because it is an especially prime example of the power of functionalism in modern American jurisprudence. 

Longest SCOTUS Question Presented I've Ever Seen

The Court granted cert today in Wellness International Network v. Sharif. The Question Presented section in that cert petition was the longest I've ever seen, ranging an awesome three pages. Proof that the long-question-presented trend continues, unabated.

(The Court limited its grant to questions 1 and 3, and rejected questions 2 and 4).