Will Second Amendment Law Change Under Trump's Supreme Court?

One of President-Elect Donald Trump's priorities when appointing a Supreme Court Justice to replace Justice Scalia is to select a justice who will "defend the Second Amendment." Commentators forecast that Trump's nominee will be pro-Second Amendment, and Trump's post-election statements suggest that the Second Amendment will be a key factor he considers in appointing somebody to the Supreme Court.

Those who anticipate big changes in Second Amendment law may need to curb their enthusiasm for the moment. In order to expand Second Amendment protections in any significant way, the Court must first agree to hear a Second Amendment case. This is something the Supreme Court has been loathe to do, with Justice Scalia and Justice Thomas occasionally protesting the Court's refusal to take on cases involving gun restrictions.

If Trump manages to appoint somebody who is essentially identical to Justice Scalia, this will only leave Trump with two justices who have been willing to dissent from denials of certiorari in Second Amendment cases -- Justice Thomas and whoever replaces Justice Scalia. Perhaps Justice Alito can be added to this group based on his ideology and his recent opinion concurring in judgment in Caetano v. Massachusetts (although there is a difference between the decision to grant certiorari and the decision to write a separate decision concurring in judgment).

Even with three justices willing to grant certiorari in Second Amendment cases, Trump's Supreme Court would still fall short of the four justices necessary to get the Court to hear Second Amendment cases in the first place. For this reason, unless Trump has the opportunity to appoint an additional justice, it is unlikely that there will be any immediate, significant changes to Second Amendment law.

Lastly, to add a bit of political prediction nonsense to this post -- if defending the Second Amendment is indeed a priority for Trump and if he values taking a more middle-of-the road approach when appointing a Supreme Court Justice, I would bet that Judge Diane Sykes (currently on the Seventh Circuit Court of Appeals) would be Trump's choice. The most recent commentary I've seen (and predictions of others who probably pay more attention to this than me) suggests that Judge Sykes or Judge William Pryor (of the Eleventh Circuit) are the most likely nominees. Judge Sykes may be a less controversial choice than Judge Pryor and Judge Sykes has a positive track record when it comes to the Second Amendment. Those wondering about her stance on the issue should look no further than her opinion in United States v. Skoien, and her dissent to the en banc Seventh Circuit opinion in Skoien that overturned her earlier opinion.

The Second Amendment will be one of many issues to consider as Trump nominates a Supreme Court Justice. But however Trump's initial nomination turns out, I do not expect that the Supreme Court will take any cases that lead to any significant Second Amendment shifts. This will most likely be something to watch for if Trump has the chance to nominate a second justice.

A 32-Line Justice Breyer 'Question'

Behold!

 

 

From oral argument today in Beckles v. United States. H/T Josh Blackman, who helpfully notes here that Justice Breyer's record is 44 lines.

Revisiting Chemerinsky's "Return of the Jedi" Analogy

A little over a year ago, I wrote a post criticizing Erwin Chemerinsky's characterization of the Roberts Court's liberal October 2014 term as the Return of the Jedi. My criticism was both technical (Chemerinsky suggested that the October 2014 term may be followed by The Empire Strikes Back), and based on a desire for the ideal Star Wars metaphor (I suggested that Star Wars: A New Hope would serve as a better analogy).

While I stand by my technical criticism (Empire came before Jedi, damn it!), Chemerinsky's choice of the Return of the Jedi analogy may have been more fitting than I initially could have known. At the time Chemerinsky wrote his article, I had neither seen The Force Awakens (in which the Empire-themed First Order uses a planet-sized superweapon to destroy entire systems of planets) nor was I aware that Donald Trump would be elected President in 2016, causing unprecedented levels of fretfulness in those who wished to see a liberal Supreme Court.

With Chemerinsky hailing Trump's presidency as the potential end of Roe v. Wade and affirmative action programs, it should be only a matter of days until he brings his analogy home. In the meantime, I would call on any of my readers who attend or are employed at the University of Irvine School of Law to try to locate Chemerinsky's time machine the next time they have the opportunity to visit his office.

Is Korematsu a Precedent?

Noah Feldman argues it is not in this editorial at the New York Times. Feldman writes:

The most straightforward way to reject Korematsu is to understand it not as the definitive word on the true meaning of the Constitution, but simply as a moment in historical time in which particular justices applied the law to specific facts. According to this view, a decision can be wrong at the very moment it was decided — and therefore should not be followed subsequently. 

Justice Anthony M. Kennedy adopted a version of this theory of precedent in his opinion in the landmark 2003 gay rights case, Lawrence v. Texas. Overturning Bowers v. Hardwick, which had held that a state could criminalize homosexual sex, Justice Kennedy wrote that “Bowers was not correct when it was decided, and it is not correct today.” This formulation suggests that it would have been constitutionally wrong in the deepest sense to rely on the Bowers decision even before the court realized its error and reversed. 

. . .

The legal problems ran even deeper. In his opinion for the court in Korematsu, Justice Hugo Black said that it would be easy to rule against the government if the case had involved “the imprisonment of a loyal citizen in a concentration camp because of racial prejudice.” But he improbably insisted that there was no racial discrimination against interned Japanese-Americans because security, not prejudice, motivated the military to order the internments. 

Furthermore, the Supreme Court’s deference to executive judgment on the domestic front in order to overcome the equal protection guarantee of the 14th Amendment would now be almost unthinkable. Under current doctrine, a court would have to give such a government action the highest degree of scrutiny. To the extent Korematsu did not involve this close scrutiny, it has arguably already been overruled sub rosa by the cases that established those scrutiny norms. 

. . . 

As a predictive matter, the Supreme Court is extremely unlikely to rely on Korematsu. It has been widely disparaged by courts and scholars. Congress repudiated it directly in the Civil Liberties Act of 1988, which paid reparations to detainees, and in the Non-Detention Act of 1971, which prohibits the detention of citizens without trial. When Justice Stephen G. Breyer described the Korematsu decision in his recent book as “discredited,” he wasn’t going out on a limb, but reflecting a legal consensus.

The full opinion in Korematsu v. United States is here.

While Feldman does a thorough job surveying how Korematsu has been repudiated by legal commentators, Congress, and judges, I disagree with his claim that Korematsu is not a precedent.

Feldman notes that a case like Korematsu would be unlikely to arise today because "a court would have to give such a government action the highest degree of scrutiny."  While Feldman claims that Korematsu did not involve this close scrutiny, this is incorrect. In Korematsu, the Court claimed that it was applying "the most rigid scrutiny" in evaluating the constitutionality of a policy that curtailed the rights of a single racial group, and noted that "[p]ressing public necessity may sometimes justify the use of such restrictions." Korematsu has been cited repeatedly as the origin of the "strict scrutiny" test for constitutionality -- the most stringent test a law must pass.

Which leads to the clearest problem with Feldman's overall claim that Korematsu is not precedent: the Supreme Court has repeatedly cited Korematsu as precedent. Dean Hashimoto thoroughly discusses Korematsu's treatment as precedent in this article. The Court has cited Korematsu in support of statements like:

• "Classifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions and hence constitutionally suspect." Bolling v. Sharpe, 347 U.S. 497, 499 (1954).
• "At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the 'most rigid scrutiny,'" Loving v. Virginia (!), 388 U.S. 1, 11 (1967)
• "But we deal here with a classification based upon the race of the participants, which must be viewed in light of the historical fact that the central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States. This strong policy renders racial classifications "constitutionally suspect," Bolling v. Sharpe, 347 U. S. 497, 499; and subject to the "most rigid scrutiny," Korematsu v. United States, 323 U. S. 214, 216; and "in most circumstances irrelevant" to any constitutionally acceptable legislative purpose, Hirabayashi v. United States, 320 U. S. 81, 100. McLauglin v. Florida, 379 U.S. 184, 191-192 (1967)

Feldman may reply that these citations are to a basic principle that happened to originate in Korematsu, and that even if the opinion were explicitly overruled it could still be cited in a similar manner. Moreover, despite the shock of seeing such a loathsome case cited in landmark cases like Loving, there is a bit of an ironic joy in seeing the ugly case of Korematsu used for the laudable purpose of striking down discriminatory laws.

These points still do not change the fact that no matter how much commentators may protest, the Court itself has repeatedly cited Korematsu in support of its claims. Moreover, the Court has found need to distinguish cases from Korematsu (see, e.g., Kent v. Dulles, 357 U.S. 116 (1958)). While the Court did not rely on Korematsu in Dulles, by distinguishing Korematsu, the Court tacitly granted Korematsu legitimacy as a precedent worthy of note.

Ultimately, while it is unlikely that the present Court would rely on Korematsu to support something as loathsome as internment, the case remains a precedent. Justice Jackson warned us as much in his dissent -- which I wrote about here. Taking such a view of Korematsu should not be confused with granting the case any measure of respect or legitimacy. As Hashimoto writes in the conclusion of his article:

In declaring Korematsu to be living precedent, I recognize that my view is at odds with the position taken thus far by leaders of the Japanese American community. I understand their wishes and desires to declare Korematsu dead, especially after the successes of the restitution movement and the coram nobis litigations. But I fear that there is a great danger in forgetting what should not be forgotten. I believe that it is safer to be honest and recognize Korematsu's continued perpetuation as doctrine than to prematurely declare the conclusion of a noble cause. Korematsu's persistance, as legal precedent and as a memory of the internment itself, must serve to remind us to be vigilant in protecting our civil liberties.

Justice Willet: A Confirmation Hearing Outline

Via Howard Bashman's How Appealing, I learned of this excellent profile of Texas Supreme Court Justice Don Willett by Eric Benson. Since Donald Trump included Justice Willett on his short list of potential Supreme Court nominees back in May, there has been a decent amount of coverage from the fairly generic to the critical to the sensational. Benson's article thoroughly covers the story of Justice Willett's life and career before the Texas Supreme Court, some of his notable moments on the Court, and his activities beyond the judiciary, including his speaking at Federalist Society events and living up to his title as the Tweeter Laureate of Texas.

From Benson's article:

Social media sleuths had combed through @JusticeWillett’s feed and found such Trump-mocking gems as “We’ll rebuild the Death Star. It’ll be amazing, believe me. And the rebels will pay for it. —Darth Trump.” Within the day, the websites of outlets from the Dallas Morning News to People exploded with variations of the headline “9 times Texas Supreme Court Justice Don Willett dissed Donald Trump.” While some political commentators thought Willett’s tweets would make his ultimate selection by the thin-skinned Trump unlikely, the president-elect might well favor a judge prone to the occasional insult. But the attention garnered by Willett’s Twitter jabs obscured a more relevant fact: While the justice portrays himself on social media as little more than a flag-waving, pun-inclined good old boy, he is also a heavyweight of constitutional jurisprudence, one of the leading lights of a polarizing legal movement that has upended the long-sacrosanct conservative doctrine of “judicial restraint,” the mantra of Scalia and Robert Bork.

In a series of high-profile opinions over the past half-decade, Willett has mapped out the contours of this position, championing what libertarian attorney Chip Mellor termed “judicial engagement,” a more aggressive approach to reviewing (and sometimes declaring unconstitutional) government regulations, particularly those that relate to economic and property rights.

I began following Justice Willett on Twitter a while ago, and it is a decision I do not regret. Justice Willett's tweets are often humorous and informative. While Justice Willett's tweets are almost all whimsical, he does not hide his enthusiasm for judicial restraint.

I urge readers to read Benson's full article on Justice Willett. As for the remainder of this post...in the event that Justice Willett is indeed selected as a judicial nominee, whether for the Supreme Court or for another federal judgeship, senators will need to think up questions to ask at the confirmation hearing. Clever senators should approach the hearing as any good lawyer approaches questioning a witness at trial: they should ask questions knowing what the answer will be -- or what the answer ought to be.

With this in mind, here is a list of possible questions senators may ask, along with Justice Willett's paper Twitter trail that shows what his answers had better be:

As a Supreme Court Justice (or federal judge) would you be willing to expand the Supreme Court's previous decisions that expanded the definition of marriage?

I could support recognizing a constitutional right to marry bacon. pic.twitter.com/HKPW6tE4H6

— Justice Don Willett (@JusticeWillett) April 30, 2015

As a Supreme Court Justice (or federal judge) will you legislate from the bench?

When it comes to legislating from the bench—I literally can't even.

— Justice Don Willett (@JusticeWillett) September 10, 2014

Do you anticipate that you would ever engage in any form of judicial activism should you be appointed to the Court?

My wife's favorite type of judicial activism. pic.twitter.com/EQcijk5jpW

— Justice Don Willett (@JusticeWillett) November 10, 2016

How will you approach discussions with other justices (or judges) who do not agree with your views on a case?

Text from Court colleague—"I must dissent from your opinion."

Me—"New phone. Who dis?"

pic.twitter.com/4Ai31PrSXD

— Justice Don Willett (@JusticeWillett) November 12, 2016

(Here's a non-tongue-in-cheek question, just for fun): Does your inclusion of "#SCOTUS" in this tweet indicate that you would vote in favor of granting certiorari to this case or to a similar case?

BREAKING—9th Cir. says there's no 2A right for the general public to carry concealed firearms in public. ⚖ #SCOTUShttps://t.co/OoIEcAvvma

— Justice Don Willett (@JusticeWillett) June 9, 2016

What approach will you take toward oral argument?

"That idea is just . . . the worst."

—Vitruvius ("Lego Movie")

Need to work that into oral argument this Term. pic.twitter.com/seE5iTIvO5

— Justice Don Willett (@JusticeWillett) August 11, 2014

What is that on your sleeve?

New cufflinks for a new Term. #SCOTX #txlege pic.twitter.com/CJ25eJ9NsB

— Justice Don Willett (@JusticeWillett) September 1, 2015

To the numerous United States Senators out there who I am sure read this blog on a daily basis: You're welcome.

Justice Jackson on Japanese Internment

Earlier today, a Donald Trump supporter, Carl Higbie, spoke out in favor of Trump's plan to register Muslims, and cited the infamous Korematsu v. United States decision as "precedent" for this plan. Here's the video:



Higbie's statement has been rightly condemned here and as reported here, although it is worth noting that Korematsu has never been overruled. Higbie's statements lend a disturbing relevance to this portion of Justice Jackson's Korematsu dissent:

Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as "the tendency of a principle to expand itself to the limit of its logic." A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court's opinion in this case.

It is a dangerous policy that draws its support from Korematsu, and the fact that Justice Jackson's dissent appears increasingly prescient is a disturbing feature of the current political climate.

The Use of Colons in the Titles of Law Review Articles and Comments

I didn't have much to do yesterday evening, so I decided to test a theory that I have believed for years but never examined: that law review articles tend to avoid using colons, while most student-authored notes and comments use colons.

I have both written and reviewed articles for publication and I have read numerous law review articles and comments in the course of writing my own comments and articles. In doing so, I have seen many titles. From my general experience, it seems that the titles of professor and practitioner-written articles tend to avoid the use of colons, while student-authored work continues to embrace that punctuation mark.

With my free evening, I ignored all of the possible activities that the vibrant city of Los Angeles had to offer and set to work to explore the frequency of colon-use in law review titles. My plan was to look at the most recent issue of the top 16 law journals and law reviews I could find (as ranked by Washington & Lee) and to compare the colon vs. no colon ratio in professor/practitioner-authored articles with the colon vs. no colon ratio in the titles of student-authored notes and comments.

The bright idea of determining whether this had ever been done before did not cross my mind until I was well into my project. I did some searching and found this excellent 2006 article in the best law journal written by Joshua Deahl and Bernard Eskandari. Deahl and Eskandari analyze the titles of a volume of law review articles in ten journals every five years from 1948 through 2003. The authors selected five "elite" law journals and five "second-tier" law journals.

Here is Deahl and Eskandari's graph of colon use in law journal titles:

From their summary of findings comparing titular colon use between articles and notes in elite and second-tier journals:

Since we are most interested in the current state of legal scholarship, the trends over the past decade are especially informative. According to our statistics, the four plotted categories rank in the following order, from lowest to highest percentage of colonized titles: (1) articles in elite journals, (2) articles in second-tier journals, (3) notes in elite journals, and (4) notes in second-tier journals. We suspect most people would rank the expected quality of legal scholarship by category in this same order. This lends further support to the idea that the worse the piece of scholarship, the more likely it is to have a titular colon. Only the "elite articles" clearly stand apart in 2003, with approximately thirty to forty percent fewer articles with colonized titles than each of the other categories.

Even though Deahl and Eskandari's methodology is far more rigorous than my spur of the moment project, I decided that a current snapshot of the state of law review titles could serve as a useful comparison and update to Deahl and Eskandari's work (also, I had already written most of the table below and did not want my work to go to waste). I added the "second-tier" journals that Deahl and Eskandary had examined to my sample, although I replaced the Dickinson Law Review (which is no longer being published) with the Penn State Law Review and Denver University Law Review (Dickinson was ranked 112 at the time Deahl and Eskandari published their article, and Penn State and Denver are tied for 111). This gave me a sample size of the most recent issue of 22 journals.

Here are the numbers I found. For professor/practitioner-authored work, I included both articles and essays in my totals. As noted below, I did not include book reviews. Additionally, for the Harvard Law Review, I used the second most recent issue, because the current issue is a Supreme Court 2015 examination and the "In Memoriam:" article, the foreword, and the cases included did not fit cleanly into my article/comment framework. For each publication, I have linked to the page where I found the articles and comments. Take note, however, that some journals only allowed me to link to a "most current issue" page rather than a specific page for a specific issue, so several of these links will be out of date as time goes on.

Larsen and Devins on the "Amicus Machine"

Scotusblog has this post by Allison Orr Larsen and Neal Devins on the rising number of amicus briefs, and the heightened focus on obtaining briefs from Supreme Court practitioners to maximize a case's chances of being heard and a successful outcome. The post begins:

We are living in the age of the Supreme Court amicus. Last term, amici curiae, or “friends of the court,” filed 863 briefs at the court – an average of 13 per case argued – and the justices cited these briefs in 54 percent of the cases they decided. This is the new normal. Over the past six terms, as Anthony Franze and R. Reed Anderson have shown, approximately 800 amicus briefs were filed in 93-98 percent of all cases, with marquee end-of-June cases attracting briefs in the triple digits. That is over an 800-percent increase in submissions from the 1950s and a 95-percent increase from 1995. Although nobody can say for sure whether these briefs actually change case outcomes, it is clear that the justices are citing them regularly and that there are more and more “friendly” briefs from which to choose. The amicus growth spurt is significant and shows no sign of slowing down.

The post refers to Larsen and Devins' forthcoming article, The Amicus Machine, which can be downloaded here. Here is the abstract:

The Supreme Court receives a record-number of amicus curiae briefs and cites to them with increasing regularity. Amicus briefs have also become influential in determining which cases the Court will hear. It thus becomes important to ask: Where do these briefs come from? The traditional tale describes amicus briefs as the product of interest group lobbying. But that story is incomplete and outdated. Today, skilled and specialized advocates of the Supreme Court bar strategize about what issues the Court should hear and from whom they should hear them. They then “wrangle” the necessary amici and “whisper” to coordinate message. The result is orchestrated and intentional – the product of what we call “the amicus machine.” 

This Article has two goals: (1) The first is to offer a new description of the origin of many Supreme Court amicus briefs, explaining how it is that the Justices and the advocates benefit from this choreographed amicus process. (2) Second, we make the perhaps surprising claim that the amicus machine is normatively desirable. Others have warned about the influence of the powerful lawyers of the Supreme Court bar generally. While acknowledging these risks, we argue that – when it comes to amicus briefs – the benefits of specialization outweigh the costs.

One area of amicus participation that may draw less attention is the filing of amicus briefs at the certiorari stage -- where the Supreme Court considers whether to take a case. The Supreme Court only grants certiorari to a small fraction of cases, and Larsen and Devins note that amicus participation at the certiorari stage may greatly increase the chances that the Supreme Court will hear the case.

As the abstract shows, Larsen and Devins ultimately argue that the trend toward amicus briefs is a good one. From the post:

In an era of infinite information and virtually limitless briefs, coordination efforts by Supreme Court experts are a controlling force on a potentially unruly system. At the end of the day, the amicus machine may be a virtue, and not a vice, of current Supreme Court practice.

The article elaborates that while businesses may have an advantage in obtaining amicus participation, particularly at the certiorari stage, there are several Supreme Court specialists who "regularly represent individual interests" who obtain amicus briefs at a rate similar to those lawyers who represent businesses.

Amicus participation in cases before the Supreme Court is a growing phenomenon, and is of critical importance at the certiorari stage. I hope that Larsen and Devins, or others with similar research interests expand the investigation of amicus participation to other jurisdictions, such as courts of appeal and state courts, to see if the trends observed in the Supreme Court remain consistent.

Marijuana, Federalism, and Guns

The Wall Street Journal reports:

28 states and Washington D.C., allow marijuana use in some form, including eight that allow recreational use. Yet federal law still holds that anyone who uses marijuana, even medicinally, is doing so illegally and can’t buy a gun. 

That is upsetting advocates for both gun owners and pot smokers, groups that don’t always find themselves on the same side of the cultural divide. 

“This idea that you somehow waive your Second Amendment rights if you smoke marijuana” is wrong, said Keith Stroup, founder of NORML, which advocates marijuana legalization. “In particular, if you are using marijuana as a medicine, the idea that you have to choose between your health and the Second Amendment is offensive.” 

“The Gun Control Act prohibitions are governed by the Controlled Substances Act, and marijuana remains an illegal, controlled substance under federal law,” said Justice Department spokesman Peter Carr.

This issue sets up the possibility of a very strange coalition of marijuana and gun advocates, and leads to Republican senators like Lisa Murkowski making the following statements:

Ms. Murkowski wrote Attorney General Loretta Lynch in March urging her to reconsider the policy. “In my judgment, the disqualification of an entire class of marijuana users acting consistent with state law from possessing any firearm merits a review of federal legal policy,” she wrote.

The article notes that the Ninth Circuit has held that banning those holding medicinal marijuana cards from purchasing firearms does not violate the Amendment. That case is Wilson v. Lynch, and you can find the full opinion here.

The Wall Street Journal's article highlights one of the numerous tensions between state and federal law regulating marijuana -- tensions that will doubtless gain more attention and prompt more dissent as more states continue to legalize recreational and medical marijuana. Erwin Chemerinsky, Jolene Forman, Allen Hopper, and Sam Kamin explore the federalism conflicts that marijuana legalization creates in this notable article in the UCLA Law Review. Here is the (somewhat lengthy) abstract:

Supreme Court Nonsense

Every once in a while, it's fun to read nonsense online. Through the magic of the internet, one can explore the finer points of legal name fraud, follow Martin Shkreli's Twitter account, or peruse the ramblings of ignorant bloggers. Recently, I have seen more and more silly articles written or shared regarding the Supreme Court in light of a certain recent election. To make things worse, these articles are often written by attorneys! I generally try to keep my attorney-written nonsense confined to my workday, and it depresses me to see this material spill over into my leisure reading. 

Because misery loves company, here are some of the stranger things I have read regarding the Supreme Court recently. These articles are written by attorneys, which raises the concern that the legalistic bunk in them may be viewed as legitimate by the general public. I'm flagging them for this reason (and because every once in a while, it's relaxing to just lash out at something awful rather than destroying something beautiful).

First is an old article, but one that I have started seeing more often now that Trump won the election. Gregory Diskant wrote this article at the Washington Post back in April in which he claimed that the Senate, by refusing to hold hearings on Merrick Garland's appointment had waived its role in confirming Garland, and that Obama could therefore simply appoint Garland to the Supreme Court.

From the article:

It is altogether proper to view a decision by the Senate not to act as a waiver of its right to provide advice and consent. A waiver is an intentional relinquishment or abandonment of a known right or privilege. As the Supreme Court has said, “ ‘No procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ ” 

It is in full accord with traditional notions of waiver to say that the Senate, having been given a reasonable opportunity to provide advice and consent to the president with respect to the nomination of Garland, and having failed to do so, can fairly be deemed to have waived its right. 

Here’s how that would work. The president has nominated Garland and submitted his nomination to the Senate. The president should advise the Senate that he will deem its failure to act by a specified reasonable date in the future to constitute a deliberate waiver of its right to give advice and consent. What date? The historical average between nomination and confirmation is 25 days; the longest wait has been 125 days. That suggests that 90 days is a perfectly reasonable amount of time for the Senate to consider Garland’s nomination. If the Senate fails to act by the assigned date, Obama could conclude that it has waived its right to participate in the process, and he could exercise his appointment power by naming Garland to the Supreme Court. 

Presumably the Senate would then bring suit challenging the appointment. This should not be viewed as a constitutional crisis but rather as a healthy dispute between the president and the Senate about the meaning of the Constitution. This kind of thing has happened before. In 1932, the Supreme Court ruled that the Senate did not have the power to rescind a confirmation vote after the nominee had already taken office. More recently, the court determined that recess appointments by the president were no longer proper because the Senate no longer took recesses.

First, it is a massive and unsupported leap to contend that the Senate's refusal to act constitutes a waiver of its "right" to provide advice and consent. This power of the Senate is distinct from rights that individuals may waive in the context of, say the Fourth and Sixth Amendments. Moreover, the Senate is not waiving any right -- its refusal to hold hearings constitutes its refusal to consent and therefore is an instance of it exercising its power.

Also, I suspect that Diskant's denial of a constitutional crisis following Garland's appointment would hold up if an equally divided Court (Garland would be recused, after all) were unable to reach a decision, leaving the ultimate question of the Senates power or lack thereof up to a Court of Appeals. This is, admittedly, an unlikely outcome, because I suspect the Supreme Court would most likely dismiss Diskant's waiver theory faster than you can say "argle bargle."

For a more recent example of Supreme Court nonsense, look no further than this article at The Hill written by J. Stephen Clark, a law professor at Albany Law School. While Diskant's article at least contains some attempt at legal rigor akin to that in Facebook copyright disclaimers, Clark's suggestion is that lawyers to little more than put their fingers in their ears, shout "la la la," and ignore rulings of the Supreme Court. For those who think this characterization is unfair, here is part of the article:

Donald Trump will get to fill a Supreme Court vacancy that should not exist. It persists only because of outlandish ideological obstruction by Senate Republicans. That obstruction will now taint the eventual appointee, whom the legal community should shun after confirmation. 

. . .

The question is whether everyone should just roll over and capitulate as if the ideological grab never happened. The Trump appointee will be a member of the Court, with all the powers that come with the position. But ignoring the obstruction that preserved the vacancy for purely ideological reasons would validate that misbehavior as a new normal. 

An alternative is shunning. The Court's influence rests on its legitimacy as an impartial arbiter. But the Trump appointee will owe his or her position to an ideological scheme meant to keep the vacancy open for however many years it took to get a conservative. Such an appointee should be shunned as an illegitimate ideological plant.

Most importantly, the appointee’s illegitimate vote can be shunned. Because the appointee’s presence on the Court will be illegitimate, so too will be any 5-to-4 decision with the appointee in the majority. While people must obviously comply with such decisions, the legal community need not internalize them as legitimate additions to the law. Instead, they should be regarded as merely provisional, lacking precedential force and subject to overruling without constraint. Commentators should carefully designate and quarantine them.

As Clark admits in the article, the Senate refused to hold hearings on Garland's nomination for political reasons. This is consistent with the Constitution, which sets up the Senate as a political check on the President's power of appointment. If people like Clark believe that the Senate should not have blocked President Obama's nomination, they should vote the Senate out. But as the most recent election reveals, this apparently is not a significant concern for most voters.

But the most egregious portion of Clark's article is the last paragraph quoted above in which Clark seems to suggest that practitioners should simply ignore any 5-4 decision in which the Justice appointed to Justice Scalia's seat is in the majority. To any non-lawyers out there who are wondering -- no, lawyers and judges cannot simply ignore the decisions of the Supreme Court because they do not think that one of the Justices should be on the Court. This is, for lack of a better phrase, pure applesauce.

Arguing with proponents of these articles' views is often an exercise in futility. But hopefully this post will flag a small fraction of the nonsense and perhaps keep a few readers from being drawn into the nonsense.

UPDATE (11/15/2016)

The Washington Times reports that no less of a legal juggernaut than Barbra Streisand recently espoused Diskant's waiver theory and urged the appointment of Merrick Garland. Nevertheless, I stand by my arguments above. I will not criticize Streisand's comments, as I am concerned that she might sue me or take some other action that would ultimately draw even more attention to her inaccurate views on how the judicial appointment system operates.

White on Trump "Opening Up" Libel Laws

I have written several posts on the implications of Trump's presidency on various constitutional rights. I was going to write one on the First Amendment, but after reading this article by Ken White of Popehat, there is not much more that I want to add. From the article:

As President, Trump will appoint federal judges, from the Supreme Court to the various Courts of Appeal to the trial judges on the many District Courts. But that's not a clear or easy path to "opening up" defamation law and changing either the actual malice standard or the requirement that defamation involve false statements of fact. The Supreme Court has supported the First Amendment very strongly in the last generation, particularly in comparison with other rights. The Court has repeatedly rejected recent attempts to create new exceptions to the First Amendment or to narrow it. Consider Snyder v. Phelps, in which the Supreme Court ruled 8-1 that Westboro Baptist Church protests at funerals were protected speech. That represented a firm refutation of the notion that speech could be limited because it is hurtful or offensive. Or consider the somewhat obscure but incredibly important United States v. Stevens, in which the Court — ruling 8-1 again — overturned a federal law against "crush videos" (don't ask) and sternly rebuked the government's position that courts can create new ad hoc exceptions to the First Amendment based on a weighing of the value of speech. Or consider Reed v. Town of Gilbert last year, in which the Court unanimously (though with some justices taking a different route) held the line on the idea that laws that restrict speech based on content are subject to strict scrutiny.

I recommend reading the whole article. The Wall Street Journal Law blog also highlights White's article and additional similar commentary here.

I think that Trump's support for "opening up" defamation law suggests, at best, ignorance of First Amendment law and, at worst, contempt for constitutional rights. But when it comes to defamation, the First Amendment will likely emerge unscathed from Trump's presidency, though I agree with White that his brash statements about libel may embolden more litigants to file defamation lawsuits.

No, It is Not Legal to Smoke Marijuana While Walking On the Sidewalk in Downtown Los Angeles

...or in any other California city or town for that matter. On November 8, California passed Proposition 64 (text of the Proposition here, analysis here) which legalized the recreational use of marijuana. The LA Times reports on the passage of Prop 64 here. From the LA Times:

The approval of the ballot measure creates the largest market for marijuana products in the U.S. It comes six years after California voters narrowly rejected a similar measure. Activists said passage would be an important moment in a fight for marijuana legalization across the U.S.

“We are very excited that citizens of California voted to end the failed policy of marijuana prohibition," said Nate Bradley, executive director of the California Cannabis Industry Assn. "Proposition 64 will allow California to take its rightful place as the center of cannabis innovation, research and development.”

Discouraged law enforcement officials said they will closely monitor implementation of the ballot measure.

At this point, it looks like the sites I typically link to for California laws have not yet been updated to reflect Prop 64's passage. I will add links to those sections when they become available. For now, the text of the news laws is available in the text of the proposition itself.

The central statute in Prop 64 is the newly created Health and Safety Code 11362.1 which states:

(a) Subject to Sections 11362.2, 11362.3, 11362.4, and 11362.45, but notwithstanding any other provision of law, it shall be lawful under state and local law, and shall not be a violation of state or local law, for persons 21 years of age or older to:
 

(1) Possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than 28.5 grams of marijuana not in the form of concentrated cannabis;
 

(2) Possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than eight grams of marijuana in the form of concentrated cannabis, including as contained in marijuana products;
 

(3) Possess, plant, cultivate, harvest, dry, or process not more than six living marijuana plants and possess the marijuana produced by the plants;
 

(4) Smoke or ingest marijuana or marijuana products; and  

(5) Possess, transport, purchase, obtain, use, manufacture, or give away marijuana accessories to persons 21 years of age or older without any compensation whatsoever.
 

(b) Paragraph (5) of subdivision (a) is intended to meet the requirements of subdivision (f) of Section 863 of Title 21 of the United States Code (21 U.S.C. § 863(f)) by authorizing, under state law, any person in compliance with this section to manufacture, possess, or distribute marijuana accessories.

(c) Marijuana and marijuana products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.

What was I thinking with my extremely specific, negatively worded title? True, it has been a little off-putting that in the three days since Prop 64's passage I have:

1. Walked through a cloud of marijuana smoke to get to the front door of my office building in the center of downtown Los Angeles;
2. Walked past a young professional in a suit on the sidewalk in downtown Los Angeles in the early evening who was smoking marijuana while chatting with friends;
3. Had the privilege of being stuck behind a slow person taking up the entire sidewalk (which, in itself, should be a crime) who also happened to be smoking marijuana.

But all of this looks legal right?

Not so fast. Newly created Health and Safety Code section 11362.3 states:

(a) Nothing in Section 11362.1 shall be construed to permit any person to:

(1) Smoke or ingest marijuana or marijuana products in any public place, except in accordance with Section 26200 of the Business and Professions Code.

(2) Smoke marijuana or marijuana products in a location where smoking tobacco is prohibited.

(3) Smoke marijuana or marijuana products within 1,000 feet of a school, day care center, or youth center while children are present at such a school, day care center, or youth center, except in or upon the grounds of a private residence or in accordance with Section 26200 of the Business and Professions Code or Chapter 3.5 of Division 8 of the Business and Professions Code and only if such smoking is not detectable by others on the grounds of such a school, day care center, or youth center while children are present.

(4) Possess an open container or open package of marijuana or marijuana products while driving, operating, or riding in the passenger seat or compartment of a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation.

(5) Possess, smoke or ingest marijuana or marijuana products in or upon the grounds of a school, day care center, or youth center while children are present.

(6) Manufacture concentrated cannabis using a volatile solvent, unless done in accordance with a license under Chapter 3.5 of Division 8 or Division 10 of the Business and Professions Code.

(7) Smoke or ingest marijuana or marijuana products while driving, operating a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation.

(8) Smoke or ingest marijuana or marijuana products while riding in the passenger seat or compartment of a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation except as permitted on a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation that is operated in accordance with Section 26200 of the Business and Professions Code and while no persons under the age of 21 years are present.

Smoking marijuana is prohibited in any public place, unless the place is a business registered to sell marijuana (a quick summary of the exception in Business and Professions Code section 26200). This means that people walking down the sidewalk in a city or suburb or outside of a home or office building are in a public place and therefore violating Section 11362.3, which is an infraction (under the newly created Health and Safety Code section 11362.4).

Notably, while Section 11361.1 states that permitted marijuana possession or use cannot serve as a basis for search or seizure by law enforcement, Section 11361.3's prohibition on marijuana use in public and possession of open containers of marijuana in vehicles covers most conduct that would have served as the basis for such searches and seizures before Proposition 64's passage. Those who thought that Prop 64 would reduce incidents of search and seizure due to officers' detecting the scent of marijuana were therefore mistaken.

Those considering taking advantage of California's new marijuana laws should consider smoking marijuana as a combination of smoking cigarettes and drinking alcohol. You cannot smoke cigarettes inside of (most) businesses or (in Los Angeles) on restaurant patios -- and you cannot smoke marijuana in these locations either. You cannot drink a beer while walking down a sidewalk -- and you cannot smoke marijuana while walking down the sidewalk either. You cannot drive with an open container of alcohol -- and you cannot drive with an open container of marijuana either.

Would-be marijuana smokers should treat smoking marijuana as subject to the combined restrictions on alcohol and cigarettes, and should therefore avoid smoking in public -- particularly if they are in downtown Los Angeles during the early morning or evening hours when I am most likely to be outside. We'll all be better off that way.

Build Your Own Lawsuit With A "Lawgo" Set

I only just learned of this (nearly one year old) article at Legal Cheek, but I thought it was worth sharing. Legal Cheek reports:

A Canadian law firm has taken the fun and exciting world of Lego and made it more tedious — by producing a civil litigation version of the hit toy. 

In what appears to be a marketing stunt — or is it a new line of business? — Jensen Shawa Solomon Duguid Hawkes LPP, or JSS Barristers for short, has created a Lego-themed “Litigation Action Pack” called ‘Lawgo’ (pictured above). 

The boutique civil litigation firm, based in the Canadian city of Calgary, has even produced a toy barrister with accompanying robes and a court bench. The figures are recommended for those between 18 and 99 years of age.

A picture of the Lawgo set is available at Legal Cheek's website.

Interestingly, the Lawgo set is recommended for people between 18-99 years old, suggesting that the toy is meant as a gag gift for lawyers or those about to practice law. This is a shame, since it would be nice to see younger children inspired to join a profession that is even more admirable than the Jedi Order.

Legal Cheek hopes that the law firm marketing the Lawgo set obtained permission from Lego, as otherwise the Lawgo set will run into trademark problems, particularly as a result of its logo. On the other hand, even if the firm did not obtain permission, Lego may be too afraid to sue a firm that is so obsessed with the law that they created such a product in the first place. Since I could not locate news of any lawsuits against the firm marketing the Lawgo set in the year since the product was released, I will assume that one of the theories above is true. On the other hand, I could not find any links to purchase Lawgos on the firm's website, so maybe things did not go as smoothly as hoped.

Finally, while I generally approve of products that make the practice of law more approachable or even whimsical, I am also concerned that the Lawgo product could increase negative attitudes towards lawyers. In particular, there are few feelings that are more unpleasant than stepping on a Lego (see, e.g.: this), and I worry that stepping on a similar law-themed object may compound negative feelings toward attorneys. Hopefully, people unfortunate enough to step on a Lawgo will keep their negative feelings confined to the universe of small plastic objects rather than letting their feelings spill over to the legal community.

Forget Stop-and-Frisk: The Trump Supreme Court's True Threat to Fourth Amendment Protections

When discussing the Fourth Amendment under Trump's upcoming presidency, commentators tend to remain fixated on Trump's remarks in which he calls for a universal stop-and-frisk program. (See, e.g., coverage here and here). I have already blogged that Trump's apparent proposal for a national stop-and-frisk program would be unconstitutional and it is unclear how Trump would implement such a program. Indeed, to do so would almost certainly require the commandeering of state authorities, which would violate the Tenth Amendment -- which Trump vowed to protect in a statement released earlier today.

If Trump appoints judges who adopt Justice Scalia's approach to the Fourth Amendment, this will likely lead to lower Fourth Amendment protections through limits on the exclusionary rule. The Roberts Court has steadily eroded this rule, which prohibits the introduction of evidence that is discovered as a result of a Fourth Amendment violation. Scalia was a notable opponent of the rule, and commentators noted that his death and eventual replacement could represent a possible turning point for the exclusionary rule.

Indeed, even without Justice Scalia, the Court in Utah v. Strieff held 5-3 that an officer's admittedly wrongful detention of a suspect did not warrant the exclusion of evidence discovered after the officer called in the suspect's name and found that there an outstanding warrant for the suspect. The Court held that the search incident to the arrest on the warrant was far enough attenuated from the initial, wrongful stop that the drugs found on the defendant's person were admissible.

If Trump appoints Justices like Justice Scalia who are hostile to the exclusionary rule, I expect that Strieff's logic will soon be extended to other common law enforcement scenarios. For instance, a Court with Trump appointees would likely uphold as constitutional a search in a case in which an officer stops a suspect in a "high drug area" without any other basis for suspicion, calls in the suspect's identity, finds an outstanding warrant, and discovers drugs during a search incident to arrest on the warrant.

Evidence of flagrant or systemic police misconduct -- which was absent in Strieff -- will also likely be absent from the case described above. Overworked defense attorneys who do not explore an officer's history of searches and seizures combined with carefully crafted police reports will reduce the chances of finding flagrant violations of the Fourth Amendment on a case-by-case basis. And I do not suspect that conducting studies on departments to determine the existence of systemic search-and-seizure misconduct will be high on Trump's list of priorities for the Department of Justice.

Those who are concerned about the future of Fourth Amendment protections should avoid getting too caught up in Trump's stop-and-frisk rhetoric. While Trump's flippant disregard for the Constitution warrants criticism and concern, Trump's Supreme Court is most likely to erode Fourth Amendment protections by following trends established long before Trump's presidency was on anybody's radar.

Trump's Presidency and the Supreme Court

Cass Sunstein has this interesting article at Bloomberg View. Sunstein begins by correctly noting that even though Trump will appoint Justice Scalia's successor, this will leave the Court's current ideological balance unchanged. Sunstein then addresses the possibility of Trump replacing one or more of the Court's liberal justices (he mentions Justices Ginsburg and Breyer -- I would add Justice Kennedy in light of his role in recent gay rights and abortion decisions). On that topic, Sunstein writes:

Suppose, though, that one of them does resign. At that point, significant changes would be possible. But probably not many. 

One reason involves the idea of respect for precedent. The justices are usually reluctant to disturb the court's previous rulings, even if they disagree strongly with them. In this light, would a new majority really want to announce in, say, 2018, that states can ban same-sex marriage, after years of saying otherwise? That’s unlikely: Such an abrupt reversal of course, defeating widespread expectations, would make the law seem both unstable and awkwardly political. 

Would a Trump court want to overrule Roe v. Wade, which has been the law since 1973, and thus allow states to ban abortion? Considering the intensity of conservative opposition to abortion, that is somewhat more probable. But judges are not politicians, and again to avoid the appearance of destabilizing constitutional law, any majority would hesitate before doing something so dramatic. 

Would a court composed of Alito, Roberts, Kennedy, Thomas, and one or two Trump appointees be willing to grant broad new powers to the president? No chance. The current conservatives have expressed a great deal of skepticism about executive authority. They aren’t going to turn on a dime merely because the president is a Republican. 

There is a more general point. Many judges (and Roberts in particular) are drawn to “judicial minimalism”; they prefer to focus on the facts of particular cases. Quite apart from respecting prior rulings, they like small steps and abhor bold movements or big theories.

I agree with portions of Sunstein's analysis. Sunstein's point on respecting precedent is a good one, and is bolstered in the abortion context by the Court's 2016 decision in Whole Woman's Health v. Hellerstedt, a 5-3 decision striking down Texas laws restricting abortion. While two Trump appointees would likely leave the balance of the Court opposed to the Whole Woman's Health decision, a change of course this soon after the Court's ruling would indeed appear dramatically political.

This point about precedent may not hold up in the context of affirmative action, however. The most recent Fisher v. University of Texas case that upheld the University of Texas's affirmative action program was a 4-3 decision, and therefore rested on the opinion of a minority of the nine justices that typically sit at the Supreme Court. Commentators are quick to point out that Justice Kennedy authored the opinion and that Justice Kagan, who was recused, would have brought the majority's total to five justices. But these observations do not affect the fact that the majority consisted of only four justices. Should the Court revisit affirmative action with two Trump appointees replacing any one of Justices Ginsburg, Kennedy, or Breyer, the Court may likely to overrule its prior 4-3 decision with a new 5-4 decision restricting affirmative action.

As for Sunstein's point about incremental change, while he may well be correct, this will probably do little to appease those who wished to see a liberal shift in the Supreme Court. Even if the Court takes the minimalist approach that Sunstein describes, the incremental shifts will likely be to the right, rather than the substantial shifts to the left that liberals were hoping to see under a Clinton presidency.

Finally, to take a brief step into the uncertain and unpleasant world of political prognostication, many commentators expect that Trump will have the opportunity to replace Justice Ginsburg in addition to appointing Justice Scalia's successor, as she is now 83 years old and is unlikely to remain on the Court for four more years. Democrats, however, will likely begin to operate under a time frame of two, rather than four, years as Trump's presidency begins and as his Court begins to take shape. If Democrats manage to mobilize in 2020, they may take back the Senate. Once they have done so, they may well adopt the Republican tactic of refusing a hearing should any seats open up on the Supreme Court. While such an approach would represent a reversal of position for Democrat's who condemned Senate Republicans' refusal over the past many months, they would likely accept this inconsistency in favor of the influence that such a refusal could have on the Court.

I do not like the approach I described above -- whether it is practiced by Republicans or Democrats. But 2016 ushered in a new level of political combat over Supreme Court appointments, and I do not expect these political precedents to be overturned anytime soon.