Tyson Foods, Inc. v. Bouphakeo - Comcast is Dead

The Court decided Tyson Foods, Inc. v. Bouphakeo yesterday, a case about a Fair Labor Standards Act class-action that was supposed to be the death knell for statistical evidence in class actions and classes that included non-injured members.  The Court held that statistical evidence is sometimes okay and didn't reach the question of non-injured members, after Tyson Foods largely abandoned it.  Commentary so far has mostly addressed the holding on statistical evidence.  But the big news from Tyson, I think, is that Comcast Corp. v. Behrend is now dead as meaningful precedent.

In Comcast, an antitrust case, a district court certified a 23(b)(3) class on the unusual premise that predominance of common questions over individual questions can only be shown if damages could be proven on a classwide basis.  It held that one of the plaintiffs' four theories of antitrust impact could prove damages on a classwide basis, held that a particular damages model was up to that task, and certified the class, limiting proof of damages to the one theory.  The plaintiffs were happy to get a class certified at all, and therefore didn't appeal the dubious aspects, from their perspective, of the certification order.  Comcast did appeal, and the Third Circuit affirmed.  The Court, taking the case on the premise that classwide proof of damages was needed for 23(b)(3) certification, and on the factual background of a certification order that made no attempt to bifurcate liability and damages, held that because the damages model really couldn't measure damages on a classwide basis, individual damages questions predominated over common questions.  A Ginsburg/Breyer joint dissent, joined by Sotomayor and Kagan, argued that the Court had taken the case on odd premises, contrary to settled class-action law, and that the Court's assumption of those premises broke no new ground on predominance.

Comcast caused a great deal of confusion, with many courts, including some circuits, agreeing with the dissent that Comcast changed nothing, and others taking Comcast literally when it said that the plaintiffs "could not show 23(b)(3) predominance . . . [because] [q]uestions of individual damage calculations will inevitably overwhelm questions common to the class," and concluding that any class with time-consuming individual damage issues couldn't satisfy 23(b)(3).  (For a very capable and more nuanced account of post-Comcast confusion, see this excellent Chicago Law Review student comment.)  While Comcast's more careful readers generally agreed with the dissent - after all, the Comcast Court was pretty explicit about having taken the case on the premise that the class-defense bar wanted to take for a holding - it was difficult to escape the impression that Comcast's author (Justice Scalia), at least, agreed with that premise.  Otherwise, the Court's emphatic statements about the plaintiffs' inability to show predominance given the overwhelming individual damage calculations would probably have been couched in terms of concessions and unpreserved arguments.  And, given the collapse of the question presented (a Daubert-at-class-certification question that Comcast turned out to have failed to preserve), the Court probably wouldn't have gone ahead to decide a different issue in the petitioner's favor if there wasn't some zeal among the majority for its holding.

Tyson inters the broad reading of Comcast, which is to say, the only meaningful reading of Comcast (apart from the interesting antitrust-specific reading offered in the comment linked to above).  Writing on predominance, Justice Kennedy says this for the Court, quoting from several treatises:

The predominance inquiry “asks whether the common, aggregation-enabling, issues in the case are more prevalent or important than the non-common, aggregation-defeating, individual issues.”  When “one or more of the central issues in the action are common to the class and can be said to predominate, the action may be considered proper under Rule 23(b)(3) even though other important matters will have to be tried separately, such as damages or some affirmative defenses peculiar to some individual class members.”

And so goes the broad reading of Comcast, in an opinion that doesn't even bother to mention Comcast.  Individual damages questions are not an obstacle to 23(b)(3) certification.  In dissent, Justice Thomas points out, for only himself and Justice Alito, that this is contrary to what the Court recently "held" in Comcast, quoting the passage of Comcast quoted above while not grappling with the fact that the substance of what he quotes was uncontested by the Comcast plaintiffs and not briefed or argued in Comcast.  For good measure, he claims that the Court's "treatise citations" were the same ones relied on by the Comcast dissent to argue the Court's assumed premise was wrong.  (The majority has no response to this, or to any of Justice Thomas's dissent, as is usually the case when Justice Kennedy writes for the Court.)  It would be very funny if it were true, but as it turns out, the Court cited the same unexceptionable treatises as the Comcast dissent (Newberg on Class Actions, Wright and Miller), as the Court often does when writing on Rule 23, but not the same sections.

Finally, class-action buffs who've read the late, great Richard Nagareda's brilliant and influential "Class Certification in the Age of Aggregate Proof" in its entirety,* and not just the anti-certification snippets that Wal-Mart v. Dukes made justly famous, will be very happy to see this elegant line from Nagareda, which could have been intended by Nagareda as a corrective to some of the broad misreadings of Wal-Mart had it been written after Wal-Mart was decided (and clearly is intended that way by the Court):

When, as here, “the concern about the proposed class is not that it exhibits some fatal dissimilarity but, rather, a fatal similarity—[an alleged] failure of proof as to an element of the plaintiffs' cause of action—courts should engage that question as a matter of summary judgment, not class certification.”

* See also his masterful "Common Answers for Class Certification," a pithier article  covering much of the same ground that features a remarkably prescient take on Wal-Mart. 

Wittman v. Personhuballah - A Standing-Only Recap

The Court heard argument Tuesday in Wittman v. Personhuballah, a racial-gerrymandering case that presents a fascinating threshold question as to whether candidates whose electoral chances are harmed by the remedy to a racial gerrymander have standing to appeal a judgment finding a racial gerrymander, and some less exciting and fairly factbound merits questions about whether a districting scheme confessedly designed, by its drafter, to arrive at a certain racial mix in some districts is a racial gerrymander when goals of incumbency protection and partisanship would likely have led the state legislature to the same place.  I have previously blogged on the standing question.  

Where the Court comes out on the merits, should it reach them, will probably have considerable impact on the viability of the racial-gerrymandering cause of action as a means of challenging Republican partisan gerrymanders that, in the name of the Voting Rights Act, enhance minority voting strength in a few districts to a degree unnecessary to ensure minorities electoral opportunities in compliance with the Voting Rights Act.  Unfortunately for the people bringing these actions, the more natural cause of action, arguing that overzealous Voting Rights Act compliance violates the Voting Rights Act by packing minority voters into a few districts and diluting minority voting strength statewide, is generally foreclosed by recent precedent.

I have nothing predictive to say on the merits, except to make the somewhat sad observation that since the racial-gerrymandering doctrine became a tool of state Democratic parties, the Court's liberals, some of whom have been on the Court long enough to remember dissenting in every leading racial-gerrymandering case and calling for the cause of action's elimination, have become fairly enamored of racial-gerrymandering doctrine, while the Court's conservatives have become fairly skeptical of it.  Most remarkably, Justice Thomas, who once wrote that any intentionally created majority-minority district was presumptively unconstitutional, dissented last term from a decision remanding a challenge to a Republican racial gerrymander for additional fact-finding, on the incoherent ground that Alabama was "not the one that is culpable" for racially gerrymandering Alabama; rather, Alabama's racial gerrymander was the fault of "the DOJ and special interest groups like the ACLU [that] hijacked the [Voting Rights] Act" and told Alabama it had to racially gerrymander.  Rather than invalidate what by his own lights was an unconstitutional racial gerrymander, Justice Thomas would abjure from "whipsawing" Alabama with conflicting legal commands.

Strange bedfellows of the new racial-gerrymandering cases aside, Personhuballah presents important questions about candidate standing and appellate standing - questions which also have a partisan valence on the facts of this case, given the identity of the appealing candidates (the entire Republican congressional delegation of Virginia), but which are more mediated by the legal craft and transsubstantive commitments that go into standing cases.  To briefly recap my last post, the standing question in Personhuballah is whether the Republican congressmen whose districts have received excess black voters from a racially gerrymandered majority-black district that the court below held unconstitutional and reconstructed have standing to appeal, as intervenors, the holding of unconstitutionality and reconstruction, on the ground that their electoral chances have been diminished by their new black constituents.  While appellants' claim of injury sounds rather sordid when put that way, there is no doubt that some Virginian Republican congressmen's political lives have been up-ended by the remedy the three-judge district court imposed; one incumbent of 15 years, Randy Forbes, saw his district become a 60% Democratic district, and has chosen to run for reelection elsewhere.  Besides the relatively context-specific question of candidate standing to challenge disadvantageous districts, the case also presents the broader question of whether judgment losers have appellate standing when the harm the judgment causes isn't necessarily a harm to a legally protected interest (there is no legal right to a good chance at reelection).

Michael Carvin argued for the appellant congressmen.  Questioning was off to a surprisingly standing-free start for a case where the Court requested briefing on standing twice, when Justice Sotomayor asked Carvin why the case wasn't moot when most of his clients weren't really harmed by the district court's remedy and Forbes had chosen to run elsewhere.  Carvin gamely offered a representation that his client would run in his old district if the district court were reversed. Next, Justice Ginsburg asked why a voter in District Y lacks standing under the Court's precedent to challenge District X, but the representative of District Y has standing to appeal a redrawing of District X.  This elicited the very sensible answer that the voter in District Y lacks standing because he is (under the Court's tortured racial-gerrymandering standing precedent) not the victim of the racial discrimination going on in District X, while Mr. Carvin's clients are not asserting Fourteenth Amendment rights, but rather appealing a judgment finding others' Fourteenth Amendment rights were violated, and therefore don't need to be the victims of racial discrimination in District X.

Carvin's answer to Ginsburg's question spanned two pages of uninterrupted transcript and initially elicited a friendly question from the Chief Justice on the standing of congressmen besides Forbes, so it really seemed, early in the argument, as if standing would be a non-issue.  This rapidly changed, as Justice Breyer opened up a lengthy colloquy on whether Carvin's rule would lead to candidate-intervenor standing for any candidate to defend a state's districting plan, and doubted that the few precedents Carvin could marshal in support of his view helped him, and Justice Sotomayor asked a, frankly, confused question on whether Carvin was arguing that any incumbent had a cause of action when his district was changed to his detriment.  (Of course, Carvin's argument disavows any claim of a cause of action on his clients' part; what's at issue here is appellate standing.)  

At long last, Justice Kagan pointed out that the oddity in Carvin's theory is that, while his clients had injury, something she happily conceded, they haven't suffered injury to a legally protected interest of theirs, which the Court's standing precedents appear to require.  Carvin said that a legally protected interest isn't really required in appellate standing, which, as I explained in my last post, I agree with.  (Tellingly, the Solicitor General's cite for the proposition that a legally protected interest is required in appellate standing really says nothing of the sort.)  Justice Kagan said that might be right, but seemed odd.  Justice Kennedy, who didn't appear to really understand that Carvin was arguing that he didn't need a legally recognized interest, asked him what his legally recognized interest was, and suggested it might be "being re-elected without, I don't know, improper interference or something like that?"  (I take this as a distinctly friendly question.)  Justice Alito, much more pointedly, rhetorically asked whether a congressman had a legally cognizable interest in "running in a district that was lawfully enacted by the state legislature."

Next, Stuart Raphael argued for the Virginia Board of Elections.  The Board of Elections thinks Forbes, at least, has standing, but that the judgment below invalidating Virginia's districting plan should be affirmed.  (There was a great deal of mirth on whether Virginia's change in governor had anything to do with that.)  Justice Breyer, again, doubted that Carvin's best precedent, Meese v. Keene, which held that a state senator had standing to challenge a designation of some films he wanted to show as political propaganda because that designation might harm his electoral chances, was anywhere close to controlling. Raphael said Virginia wasn't happy about "officious intermeddlers" defending its districting schemes, but Keene gave them standing; the Chief Justice asked whether it was fair to characterize Forbes as an officious intermeddler when he was defending "the future of his political career that he's had for 16 years."  On that rather sympathetic note for his adversary, Raphael sat down and ceded the lectern to Marc Elias, counsel for the plaintiff-appellees (and general counsel for the Hillary Clinton campaign).

Elias began by addressing standing, which may have been a wise tactical choice given that four of the Court's eight Justices had some clear interest in his argument, but ran him into a predictable buzzsaw on the conservative side of the bench.  Justice Alito, perturbed by Virginia's refusal to defend his plan, asked whether Carvin's clients wouldn't have standing even if Virginia refused to defend its plan "for a racist reason," which he hastened to add he didn't think was the case of Virginia.  Elias, sticking to principle, said that even then congressmen would lack standing.  (He would later allow that the state legislature might have standing to defend its plan if the Governor wouldn't.)  Justice Kennedy asked a series of questions about whether incumbency protection might be the legally protected interest that would lend appellants standing, and understandably couldn't understand why the state legislature might have standing to appeal the invalidation of the plan it drew on this ground, but the incumbents actually harmed by the invalidation wouldn't.  Elias's confusing answer appeared to assume that incumbency wasn't a legally protected interest, the very premise of Kennedy's questions.

Finally, Ian Gershengorn argued for the United States.  Immediately out of the box, Justice Kennedy asked why incumbency protection couldn't be the appellants' legally protected interest when the state legislature has a policy of promoting incumbency protection.  Gershengorn appeared to say that the state could somehow create a legal right to incumbency protection that would give congressmen standing to challenge changes that threatened their reelection, but that Virginia hadn't done so.  Justice Breyer asked a very sharp question about whether, on the Solicitor General's view, a black candidate would lack standing to challenge a district designed to prevent the election of black candidates, even though a voter would have standing.  Gershengorn said the candidate would only have standing to challenge the district as voter, if he were a voter in the district.  Despite this rather, to my mind, unsatisfying answer, Breyer quickly confirmed that he still doubted standing, asking a series of questions about the supposed unmanageability of letting legislators challenge changes remedial plans make to districts those legislators don't live in.  When Gershengorn said that he agreed, and that candidates don't have a right to choose the voters in their district, Justice Kagan pointed out that Forbes wasn't trying to choose, but rather, trying to keep the ones he had under the legislature's plan, and suggested he might have a legally cognizable interest in keeping them.

Predictive Musings: I tend to think the Court may well equally divide on standing.  Alito, Roberts, and Kennedy look like strong votes for standing, Breyer and Sotomayor look like very strong votes against it, and Ginsburg and Kagan appeared to lean against finding standing, although Ginsburg and Kagan may be persuadable, particularly if the Court can get to a merits judgment they'd like.  The length of time it took Hawkins v. Community Bank of Raymore, yesterday's 4-4 decision, to be released after Scalia's death, and the length of time some other seemingly obvious 4-4 splits are taking to come out, does suggest that the Court is trying to negotiate its way around 4-4 splits wherever possible.  

If the Court does decide in favor of standing 5-3 or 6-2 (I cannot see a majority against standing), it seems rather unlikely that the Court will water down appellate standing requirements and hold that appellants don't need a legally protected interest for standing. Instead, the Court is likely to adopt the Alito/Kagan/Kennedy suggestion that candidates have a legally protected interest in legislatively enacted district lines.  That would leave the broader project of candidate standing in districting cases (to the extent such a project exists outside my febrile imagination) a bit up in the air, as the Court's holding would be limited to cases where candidates defended existing districts, rather than challenging them.  And it would bizarrely suggest that judgment losers, on top of being harmed by judgments, need to show that their legally protected interests were harmed (whatever that might mean) in order to have standing to appeal.  Nevertheless, a holding that appellants had standing in Personhuballah, on whatever grounds, would be a small step in the right direction for standing doctrine in districting cases and for honesty and transparency in litigating them.

Wittman v. Personhuballah, The Term's Standing-Law Sleeper

This morning the Court will hear argument in Wittman v. Personhuballah, a case in which Virginia's Republican congressmen have appealed a three-judge district court's judgment that Virginia's congressional districting map is an unconstitutional racial gerrymander - specifically, that race predominated in the design of Virginia's Third Congressional District, which features a 55% black voting-age population. The district court found that the line-drawers targeted the 55% mark over other line-drawing factors.  Ostensibly the line-drawers did this in order to comply with the Voting Rights Act by preventing forbidden "retrogression" in the ability of black Third District voters to elect their preferred candidates.  However, the district court held that the Voting Rights Act didn't require so much black voting-age population, as its incumbent black congressman had repeatedly been reelected by 4:1 margins.  Virginia's gratuitously generous provision of black voters in the Third District, the district court held, violated the Fourteenth Amendment as interpreted in the Court's Shaw line of cases, which say, roughly, that absent a compelling interest (i.e., compliance with the Voting Rights Act) and narrow tailoring, a district gerrymanders voters by race in violation of the Fourteenth Amendment if race was the predominant factor in its design.  

The remedy for such a gerrymander is to draw a district the design of which is not predominantly motivated by race, which in this instance is to say a district with fewer black voters in it.  When Virginia's state legislature failed to vote on a replacement plan, the district court appointed a special master to draw one, and adopted his plan. The special master's plan reduced the black voting-age population in the Third District to 45%, which the district court found would maintain the ability of black voters in the Third District to elect their preferred candidate (i.e., the popular black incumbent) and thus comply with the Voting Rights Act.  

It takes little political savvy to observe that the district court's ruling created a number of political winners and losers.  The winners, of course, are the Democratic candidates in the districts that received the overwhelmingly Democratic black voters moved out of the Third District; the losers are the Republican candidates in those districts. (The new map's biggest loser, Congressman J. Randy Forbes (R), has seen black voting-age population in his district rise from 31.3% to 40.9%, while support for Obama in the 2012 presidential election has risen from 48.8% to 60.9%.  One month ago, Forbes announced he planned to run in a different district.)  Indeed, it should surprise no one to learn that (a) the old map was drawn by Republicans and signed into law by a Republican governor, (b) that upon the election of a Democratic governor, Virginia chose not to appeal the invalidation of its congressional districting map, (c) that the state's Republican congressmen intervened in the action to defend the map and are now appealing the judgment invalidating it, and (d) that the nominal plaintiffs in the action, voters in the Third District who claim to be offended by its racially motivated composition, are represented by Hillary Clinton's campaign's general counsel.

The fairly gripping, to my mind, threshold question in Personhuballah is whether Personhuballah's political losers, the Republican incumbents whose districts have received the Third District's exiles, have standing to appeal the district court's judgment. By way of background, both historical and autobiographical, the question of standing to make racial-gerrymandering claims has long been a vexing question, both for the Court and election-law scholars, and for me personally.  In the 1990s, the Court struggled to explain who had standing to make a racial-gerrymandering claim, and why anyone would have standing to make one.  The who eventually turned out to be voters who lived in allegedly gerrymandered districts; the why was that voters living in those districts were stigmatized by the state's implicit presumption that all voters of particular races voted alike, and harmed by the "signals" such districts sent to their representatives, according to the Court, that they only represented voters of the district's majority race.  On these theories, the Court acted for about a decade as a modest counterweight to the Clinton Administration DOJ's policy of encouraging southern states, at pains of Section 5 preclearance denial, to maximize minority representation.

Both of the Court's theories of standing were immensely flawed (though the first of the two, it's generally agreed, is by far the more defensible) and wouldn't have passed the laugh test, much less Lujan's test, in most any other context.  Liberal election-law scholars like Pamela Karlan, not normally avatars of modern standing doctrine, turned out in droves to accuse the Court of "turn[ing] its back on the entire fabric of standing law."  When, in 2001, racial-gerrymandering doctrine seemingly died out at the Court, Shaw's critics moved on to criticizing other areas of the Rehnquist and Roberts Courts' election-law jurisprudence.  But when, last term, Shaw returned, this time as a Democratic weapon against Republican gerrymanders cynically dressed up as Voting Rights Act compliance schemes, Richard Hasen reminded Shaw's new fans of the old Shaw orthodoxy - to wit, that Shaw is "incoherent" and "nonsensical," and that "the racial gerrymandering cause of action protects against no real harm."

I have never believed that Shaw is such a wayward cause of action, or that racial gerrymandering is a victimless constitutional violation.  In an article I wrote in college and promptly shelved, because Shaw appeared to be dead at the time, I came to the conclusion that racial gerrymanders are unconstitutional (under existing law) because they set aside districts for candidates of particular races, and that the people who have standing to challenge them are candidates in gerrymandered districts who aren't of the race for which their district has been set aside.  I won't defend that thesis in any detail here, except to say that Voting Rights Act jurisprudence subtly requires (not just tends to cause) states to draw districts that predictably will elect minority candidates.  The mechanics are that, while in theory the Voting Rights Act protects minorities' ability to elect "candidates of choice," all but one or two regional circuits have held* that the ability to elect candidates of choice can only be truly tested in races where minority candidates run against white candidates, and that the test of whether a district can "perform" for minority voters is whether it can perform in such races.  Therefore, when courts and legislatures select VRA-compliant levels of minority voting-age population, what they are selecting are levels sufficient to elect minority candidates.  And, when Republican state legislatures over-comply, as was allegedly the case in Virginia, what they are doing is setting levels of minority voting-age population that are higher than necessary to guarantee the election of minority candidates.  (Recall that Virginia's error in Personhuballah, according to the district court, was drawing a 55% black district when its black incumbent could win with many fewer black votes.)

* For examples, see here, here, here, and here.

The standing theory in Personhuballah is something like the contrapositive of the theory sketched above.  Whereas I maintain that white candidates in racially gerrymandered majority-minority districts have standing because they are denied any electoral chance, the appellants in Personhuballah maintain that Republican candidates outside a racially gerrymandered district have appellate standing to appeal a judgment unscrambling a racial gerrymander, because the ensuing redistribution of minority voters will decrease their electoral chances.  I am, naturally, broadly sympathetic to this argument, having long believed that gerrymandering claims of all stripes should be litigated by parties who have concrete interests in them - the candidates.  There are, however, several difficulties with this particular iteration of candidate standing, which the appellee-plaintiffs and SG, acting as their amicus, have exploited.

First, there is standing law's tautological requirement of a legally protected interest.  Numerous standing cases say that injury is not enough; to show standing, one must show injury to a legally protected, or cognizable, interest.  It is easy enough to see that a candidate who alleges his district was drawn to ensure no one of his race could ever get elected has alleged injury to an interest that is, at least, legally cognizable.  It is harder to see that a Republican candidate living outside an allegedly unconstitutionally gerrymandered district, whose district receives a number of black voters by way of remedying the gerrymander, has suffered some harm to a legally protected interest.  What interest would it be?  The interest in, as a Republican, running for election in as white a district as possible?  In having a good chance at being elected?  These, the SG and appellees argue, are not legally protected interests; nothing in the law entitles appellants to white districts or good electoral chances.

Appellants effectively counter, I think, that only plaintiffs need to assert harms to legally protected interests for standing purposes; defendants or intervenors who lose lawsuits in federal court need not have suffered harm to any legally protected interest to appeal, just so long as they suffer some harm.  To argue otherwise is to say, more or less, that for a defendant to appeal a money judgment, the mere fact that the judgment forces him to pay money doesn't give him standing; he also needs to show something like a cause of action of his own for the money.  Another way of looking at things is that a party to a judgment that's harmed by that judgment and claims the judgment was legally erroneous always has a legally protected interest - the legally protected interest in not being harmed by legally erroneous judgments.  Either way, appellate standing shouldn't demand more.  As for the argument that, aside from whether it's legally protected, an injury to one's electoral chances isn't even legally cognizable, that leads to the reductio that a Democratic candidate, for example, can't challenge a Republican partisan gerrymander qua candidate, but only as interested voter.

Second, there's the difficulty of speculativeness, or probabilistic injury.  The candidate most injured by the plan the district court adopted, Forbes, has suffered a significant blow to his electoral chances, significant enough that he's given up on running for reelection in his own district.  However, appellees point out that an extra 12% of Democratic voters isn't insuperable, and that a loss on Forbes's part wouldn't necessarily be traceable to the new map.  Here, I again think that appellants have the better of the arguments.  The correct way to conceptualize Forbes's injury is not losing reelection itself, but a loss of chance.  Much like a contractor or college applicant whose chances of winning a contract or admission are denied by a racial preference, harms which the Court has held are sufficient for standing, Forbes's chances of reelection are significantly diminished by the district court's judgment.  

It is, of course, often argued that the Court's solicitude for the probabilistically injured in affirmative action cases is incoherent given the Court's treatment of probabilistic injury elsewhere.  Moreover, this is not an affirmative action case, but rather a case in which white candidates seek the reinstatement of something like a racial quota outside their districts in order to decrease party and possibly racial competition for their own seats.  However, the Court's probabilistic injury jurisprudence is (somewhat) more coherent than has been generally allowed for, and tends to cut in favor of appellants.  The Court, while never quite saying so, seems to distinguish between cases in which, on the one hand, parties claim that some government program may harm them in the future, though they have no interaction with its harmful features in the present, and, on the other hand, cases in which parties presently participate in government processes, usually competitive processes, and claim that those processes are presently unlawfully structured so as to decrease their chances of a positive outcome.  A standing doctrine where a purchaser of a state lottery ticket lacked standing to sue about fraud in the lottery, or a candidate for office lacked standing to sue about election rules, would be very strange indeed.

A third difficulty, and perhaps a fatal one, is exactly which if any of the candidates has standing to sue.  Forbes is the most harmed by the new plan; however, that plan was adopted by the district court after he and his colleagues appealed.  Did the plan confer standing on Forbes where none previously existed?  Normally, appellate standing must exist when an appeal is taken.  At the time of the appeal, all the candidates were at risk of a bad re-drawing, it was inevitable that at least one would suffer significant harm to his chances of reelection, but none knew which would bear the brunt of the Third District's reconfiguration.  Is that a problem?  I don't think it should be.  If a district court finds multiple defendants liable in a class action (suppose they're multiple asbestos manufacturers), and saves the apportionment of damages for a later phase, the possibility that any given manufacturer may have to pay nothing shouldn't deprive the manufacturers of standing to appeal the liability judgment, assuming an interlocutory appeal is allowed.

Finally, insofar as appellants rely on Forbes's standing (which they shouldn't, as it only became particularly strong after the appeal), his having abandoned his campaign for reelection in his old district is a problem.  In a footnote in their reply brief, appellants liken Forbes's situation to that of someone challenging an unconstitutional ban of some conduct who stops engaging in the conduct because it's banned.  For that analogy to work, though, there would need to be some evidence in the record that Forbes would run for reelection in his old district were the Court to reverse the judgment below; of course, nothing like that is in the record.  Alternatively, Forbes may have standing if the district in which he's now running for office is tougher than his old district; whether that's the case also isn't clear.

In sum, Personhuballah has the potential to remake standing in election law, moving candidates and their lost chances of electoral success to the forefront of districting litigation where they've always belonged.  But Personhuballah also has the potential to be a seminal case about appellate standing more generally and probabilistic injury.  And with Spokeo likely to be affirmed by a divided court, it may be the only big standing decision this term we get.

Green v. Brennan and Musacchio v. United States - Comments on Oral Argument

The Court was back in action Monday (as am I), hearing argument in two cases, one of which, a dispute over an EEOC regulation's limitations period for federal employees' constructive discharge actions, is possibly the easiest case of the term, and another of which presents two interesting questions of federal criminal appellate procedure, the first being whether sufficiency-of-the-evidence review must be conducted under the rubric of erroneously demanding jury instructions, or under the actual elements of the statute charged, and the second being whether a statute-of-limitations defense not asserted at trial can be raised on direct appeal.

The first of these cases, Green v. Brennan, involves constructive discharge actions, which are odd ducks; they turn on a legal fiction that an employee who suffers an onerously hostile work environment, on the basis of membership in some protected class, and resigns as a result, has been constructively terminated on the basis of protected-class membership.  Since the constructive discharge cause of action doesn't accrue, obviously, until resignation - until then there's only a hostile work environment claim - it would make sense that the limitations period to bring such a claim run from resignation.  Several circuits, however, have read the text of the applicable EEOC regulation (which is only addressed to federal employees) to start the clock on the date of the last discriminatory resignation-inducing act the employee complains about.  That regulation instructs federal employees that they must contact an Equal Employment Opportunity counselor within 45 days "of the date of the matter alleged to be discriminatory" (after which another period runs to sue).  Ignoring the fiction in constructive-discharge actions that the resignation is really a discriminatory termination, some circuits read "matter alleged to be discriminatory" to refer, unambiguously, to some real-world employer act, trumping the presumption that limitations periods normally don't begin to run pre-accrual.

The government, none too enamored of this theory, instead defends the decision below on the ground that the plaintiff-employee sought conciliation well over 45 days after he gave notice of his resignation, and argues that the limitations period runs from the date of notice.  Amy Howe, at Scotusblog, writes that the plaintiff disagrees with the government's legal position and takes the position that the period runs from the employee's last day of work.  As far as I can tell, that's not quite right; both in his briefs and at oral argument, the plaintiff has happily conceded that the period runs from notice of resignation, if in fact there is clear and definitive notice to that effect.  He and the government only disagree on the factual question of whether notice of that kind occurred here.  That left a Court-appointed amicus to defend the theory of the decision below, and here I agree with Howe that the amicus found, at best, only one taker, Justice Scalia.  

I would only add that it is somewhat surprising that, in staving off the amicus's argument for a contrary interpretation of the EEOC regulation than that which the government advances, the government didn't ask for deference to the EEOC's interpretation of the regulation, which I assume accords with the SG's position in this case.  Instead, the case was briefed and argued as if it were about a statute as to which no deference doctrine applied.  Such reticence on this obvious point may be borne out of the SG's fear that the Court wants to overrule Auer and Seminole Rock (the canonical cases on deference to agency interpretations of their own regulations).

Musacchio v. United States is an altogether more interesting case, one which raises, to my mind at least, fairly deep questions about the purpose of sufficiency-of-the-evidence review.  As to the first question in the case, federal law makes it a crime to access a computer without authorization, or exceed authorized access, to certain computers and obtain certain information from them.  The difference between accessing without authorization and exceeding authorized access is generally thought to be that the latter requires some excess of actually authorized access, while the former requires the opposite - that there be no authorization at all.  Of course, one needn't (and couldn't) do both to commit the crime, but that's just what Musacchio's jury instructions - unobjected to by the government - said.  There possibly wasn't sufficient evidence to convict Musacchio of conspiracy under those erroneous instructions, because of (according to Musacchio) a lack of evidence to convict him of encouraging others to exceed authorized access.  There was, however, as Musacchio never disputed, sufficient evidence to convict him of encouraging others to access computers without authorization, and on that ground the Fifth Circuit rejected Musacchio's sufficiency challenge.

It's difficult to see, at least in this case of an erroneously instructed extra element, why sufficiency review must make do with Musacchio's jury instructions.  As the jury found that Musacchio encouraged his co-conspirators to both access without authorization and exceed authorized access, and as it found the former with sufficient evidence, it found, with sufficient evidence, the necessary elements of the crime.  Why should it matter that there was insufficient evidence to find an erroneously instructed extra element?  Justices Scalia, Kennedy and Breyer all pressed Musacchio's counsel, Erik Jaffe, on this point (while Justices Alito, Ginsburg, and Sotomayor expressed varying degrees of skepticism of his sufficiency argument on other grounds).  

Here, Jaffe's only real answer was that a jury which irrationally found one element may have decided the whole case in an irrational or careless manner, such that one should doubt the reliability of the jury finding on the elements it need did to find.  Bracketing, for the moment, whether sufficiency review has anything at all to do with the reliability of an individual jury's findings, it's pretty clear that sufficiency review doesn't inquire so searchingly into the reliability of jury findings as to question the reliability of objectively reasonable findings once one jury finding has been shown to be objectively unreasonable.  For example, Jaffe conceded, on questioning by Justice Alito, that an appellate finding of insufficient evidence under one count of an indictment wouldn't call into question a jury's findings of guilt under other counts, even though insufficiency as to one count would raise the same sort of red flags about reliability that insufficiency as to one erroneously charged element raises in Musacchio.

But though the Court clearly sees Musacchio as a poor case in which to treat erroneous instructions as law of the case for purposes of sufficiency review, it's slightly less clear to me that it will hold erroneous instructions should never be law of the case in sufficiency review.  The government takes the absolute position that sufficiency review should always be conducted under the rubric of the actual elements of the crime of conviction, somewhat counterintuitively theorizing that sufficiency review really has nothing to do with the reasonableness or reliability of a given jury's findings at all, but rather, solely ensures that the government introduce affirmative evidence on the basis of which a hypothetical jury could find guilt beyond a reasonable doubt.  On that theory, errors in instructions should never enter into sufficiency review because sufficiency review isn't about what the real jury did, but just about what evidence of the offense the government adduced.   

Ultimately I think the government is right.  Suppose that, instead of erroneously requiring that the jury find two independently sufficient elements, the instructions in Musacchio instructed the jury only on exceeding authorized access, omitting the element of which there actually was evidence.  If the jury returns a conviction on insufficient evidence of exceeding authorized access, should the conviction be upheld under sufficiency review because the offense may be satisfied by access without authorization, and because sufficient evidence of access without authorization was adduced at trial?  One might think not.  After all, in that scenario, not only were the jury's findings unreasonable, the jury never actually found an element of Musacchio's offense.  That said, while such a conviction shouldn't survive appellate review generally, it should, I think, survive sufficiency review.  The real error in such a conviction is an instructional error, not insufficient evidence; it makes no sense for Musacchio to be immune from retrial because there was insufficient evidence to prove an element that shouldn't have been instructed to the jury.  Even though the bad instructions may well not have prejudiced Musacchio, inasmuch as there was better evidence to convict under correct instructions than under the bad ones, they do call into question the reliability of the result and entitle Musacchio to a new trial.

Musacchio also is a case about whether a defendant can raise a statute of limitations defense on appeal that he forfeited at trial.  Here, Musacchio is also likely to lose.  The trouble, of course, with his position is that statutes of limitation have always been understood as affirmative defenses; thus, not only are they not jurisdictional, it's hard to even fit them into plain error review, as it would seem there's no plain error when a defendant is convicted in spite of an affirmative defense he failed to make, however plain that defense may be.  Forfeited statute-of-limitations defenses can resurface upon habeas review, as a basis for an ineffective assistance of counsel argument, and a few Justices questioned the government on why a defendant should have to wait until habeas review to raise (in essence) a forfeited statute of limitations defense.  But that practically minded concern seems unlikely to carry the day. 

Torres v. Lynch - Probably Not the Case on Chevron Deference to Agency Interpretations of Criminal Law We've Been Waiting For

In previewing Torres v. Lynch, I asked whether Torres was the case on Chevron deference to agency interpretations of criminal law we've all been waiting for.  Torres, I explained, was a case where the agency interpretation of a defined term in immigration law, "aggravated felony," had consequences for the meaning of several immigration-related crimes that use that term, where the petitioner and amici argued vigorously that the agency should therefore not receive Chevron deference, and where the government, at least in the alternative, seeks Chevron deference should it lose at Step One.  I noted that Justice Scalia (in a statement respecting a denial of cert joined by Justice Thomas) and Judge Sutton have recently raised the issue of Chevron deference to agency interpretations of regulatory provisions that have criminal-law effect, that the statute in Torres likely was ambiguous, and that the Court would likely have to decide whether Chevron applied, absent severing the civil applications of the term at issue from the criminal applications.  (Severing in the sense that they could have different meanings, despite sharing the same definition - a move which has some precedent in the Court's administrative law cases.)

It would appear from the transcript, however, that the Court has absolutely no interest in deciding whether Chevron applies to agency interpretations of criminal law in this case.* There were just two questions about deference during the entire argument, both came from Justice Ginsburg, and neither went to Chevron  deference to interpretations of criminal law.  The first, put to Torres's counsel at the end of his argument, was "What about the -- the respect that we owe to the BIA for their interpretation?"  Torres's counsel replied that the rule of lenity would foreclose Chevron deference, but this didn't elicit any interest in the form of a follow-up.  Later, when the assistant to the SG, Elaine Goldenberg, raised deference at the back end of her argument, Justice Ginsburg asked about the fact that the Board of Immigration Appeals has changed positions on this issue.  Goldenberg replied that the Board had had good reasons for changing its position, and the Chief Justice interjected that in Chevron itself the EPA had changed positions.  There too, nothing was said by the Justices about deference to the Board's (collateral) interpretation of criminal law.

* For a more general recap, see Steve Vladeck's recap for Scotusblog, with which I generally agree, though I think he underestimates support for the petitioner, and which argues that a majority of the Court is inclined to vote for the government and hold that convictions for state offenses "described in" federal statutes include offenses that lack those statutes' jurisdictional elements. Listening to the argument audio, I hear at least one solid vote for Torres - Justice Sotomayor - and four more possible votes for Torres - Justices Scalia (with whom Justice Thomas could follow), Breyer, Kagan, and Ginsburg, though Kagan and Ginbsurg seem to be leaning in favor of the government. 

What explains this lack of interest in a hot and potentially outcome-determinative issue?  Perhaps the Justices (except Justice Ginsburg, perhaps) think the statute here is unambiguous one way or another, making Chevron's applicability irrelevant.  The government's substantial purposive arguments notwithstanding though, what could be more ambiguous than whether "an offense described in [a federal statute containing a jurisdictional element] . . . whether in violation of Federal or State law" necessarily contains the federal statute's jurisdictional element?  The meaning of "described in" just isn't clear. (See endnote.**)

A clue, I think, is contained in Torres's reply brief, which points out that in the Court's half-dozen engagements with the provision at issue here -- a list of offenses, housed under the heading of "aggravated felonies," that subject aliens to various immigration consequences, including deportation -- the Court has never applied or even mentioned Chevron.  It's true that in the cases he cites, plus one he doesn't mention, the government declined to request Chevron deference in each case but one, usually because the Board of Immigration Appeals hadn't rendered a precedential decision on the questions at issue or had adopted a posture of conforming its decisions to local circuit precedent.  However, as the government did point out in its briefs in one such case, where the Chevron framework applies, the Court has held it will ordinarily remand to the agency if it finds ambiguity.  Yet the Court has never inquired, in any of these cases, into whether or not there was ambiguity, and has decided some of them without remanding in cases where the statutory text at issue was anything but clear.

Perhaps the Court has always been concerned about the collateral criminal consequences of deferring to the Board's interpretation of the aggravated felony definition, or at least concerned enough to avoid deciding whether the Board gets deference so long as the Court could arrive at a tolerably clear interpretation of the definition on its own.  That's a possibility.  But in both of the cases where the government has sought Chevron deference to the Board's interpretation of the definition - this one and Nijhawan v. Holder - its immigrant-opponents have argued that the Board can't get Chevron deference to interpretations of terms that appear in criminal law, and in both cases no one on the Court indicated any interest in that claim at oral argument.  (To the contrary, Justice Scalia, who's been calling for a criminal-law exception to Chevron since 1990, suggested Chevron should apply in the Nijhawan argument.)  Nor does the unanimous opinion in Nijhawan say anything about it.

A more plausible explanation, I think, is that the Court just doesn't think the Board has sufficient expertise in criminal law to warrant deference to its interpretations of generic offenses and cross-references to federal criminal statutes.  On the other hand, the Court  has been fairly consistent about giving the Board deference on "pure" questions of immigration law, probably because, on this theory, the Court does think the Board has sufficient expertise on those sorts of questions to warrant deference.

Of course, expertise is not an official part of the Court's deference doctrine, except (a) in Skidmore, where it goes to the "weight" an agency position gets, and (b), under Barnhart, in deciding whether an agency gets Chevron deference if an agency doesn't satisfy the Mead safe harbors (i.e., if its interpretation isn't set forth in a notice-and-comment rulemaking or formal adjudication).  Neither use of expertise could explain the Court's reliance on it in this context; the Board engages in formal adjudication, which takes it out of both Barnhart and Skidmore.*  

*The courts of appeals generally only give Skidmore deference to the Board's unpublished opinions, but the relevant opinions in Nijhawan and Torres are published, and in the other aggravated-felony cases, where there were no controlling published opinions, the Court could have remanded for the Board to write one.

However, as Bill Eskridge and Lauren Baer demonstrated seven years ago in a landmark empirical study of the Court's deference cases, the Court's deference doctrines are woefully inaccurate descriptors of the Court's deference practices.  In practice, the Court defers to agencies in something like half the cases its doctrines say it should, and in practice, Eskridge and Baer say, agency win rate (if not what, if any, deference doctrine is used by the Court in the first place) appears to have a lot to with agency expertise.  Eskridge and Baer also called on the Court to turn its tacit reliance on expertise into official doctrine; seven years later, that hasn't happened.  To the contrary, the Court has only become more emphatic about Chevron's inflexibility and scope (King v. Burwell's recognition of the major-questions doctrine notwithstanding).  Consequently (among many other consequences), the courts of appeals uniformly defer to the Board on the meaning of generic crimes and criminal-law references in immigration law, even as the Court never has for reasons which go unexplained in its opinions.

If the Court really is tacitly denying deference in large swaths of cases, like the cases on the meaning of the aggravated-felony definition, because it believes the relevant agencies lack expertise on the issues those cases present, two questions come to mind.  One, is a lack of expertise really a good reason to deny deference?  Two, if it is, shouldn't the Court say so so that lower courts can deny deference for lack of expertise too?


Briefly, on the first question, I don't think a lack of expertise is a good reason to deny an agency Chevron deference.  To the extent, at least, that a statute is ambiguous or vague enough as to cause serious doubt that Congress ever resolved or thought about a given question (which may not be the case of every ambiguity), the Court errs when it searches for a legislative intention or textual meaning that isn't really there.  And, if Congress has left some policy choice open, that choice should usually be made by an agency, not a court, regardless of the agency's expertise on that particular issue.  An agency, at least, has some political accountability, both to the President and to Congress, and can more openly engage in the policy reasoning that an unmade policy choice demands.  Besides, expertise can often be completely besides the point.  

For example, take Torres itself.  If in Torres the statute really is hopelessly ambiguous on whether "an offense described in Federal Statute X, which contains a jurisdictional element" includes state offenses that lack the jurisdictional element, what expertise is really needed to decide what the law should be (rather than what it is) on that score?  The Board, being comprised of political appointees by the Attorney General and her recent predecessors, can take note of the President's preference for more/less deportation of criminal aliens and simply decide the issue that way.  The Board can also simply decide whether it deems state arson offenses that lack jurisdictional elements worthy of deportation, as Congress itself could have, but didn't.  Either sort of decision, while inexpert, is much more legitimate than (a) the Court straining to find statutory meaning that isn't there, or (b) the Court instantiating its own policy preferences on deportation of criminal aliens, whether openly or in the guise of divining the fixed meaning of the statute.

As to whether the Court should be more open about its (possibly) expertise-based deference regime, I don't think so.  In the first place, I don't think a lack of expertise is a good reason for denying deference, so I wouldn't want it to spread.  But leaving that aside, the Court's silence on the reasons it denies deference may, like Chevron itself, be based on a frank and wise assessment of institutional competence.  It is all very well for the exquisitely gifted and exquisitely well-briefed nine lawyers on the Court to deny inexpert agencies deference in a handful of cases a year.  It would be quite another thing to license the entire federal judiciary to deny inexpert agencies deference in the thousands of cases a year where deference is an option.  Making that move might cause lower courts to substitute their less expert and less informed judgment for that of agencies, and would make litigation over agency-interpreted statutes hopelessly unpredictable, as expertise is very much in the eye of the beholder.  It would also give lower courts that just don't like a particular agency interpretation a ready-made excuse to not defer to it, at least in any case where they could plausibly accuse an agency of lacking expertise.  It seems, then, all for the best that the Court has declined Eskridge and Baer's invitation to raise its deference practices to the status of vertically binding deference doctrine.
 
** One could argue that "an offense described in Statute Y . . . whether in violation of Federal or State law" unambiguously picks up all the elements of Statute Y, but that reading threatens to make a null set of half of "whether in violation of Federal or State law."  Alternatively, one could argue that given the categorical approach (under which, if Torres is right, immigration judges would have to look to whether a state statute contained a federal jurisdictional element, not just to whether an alien's state offense happened to involve conduct which would satisfy that element), given the "whether in violation of Federal or State law" language, and given the fact that state statutes will not contain federal jurisdictional elements, it just has to be the case that "described in" excludes jurisdictional elements. 

I don't think this quite works.  Not only does the "whether in violation of Federal or State law" not unambiguously require that some state-law violations of the described-in offense actually exist, the categorical approach is itself not an unambiguous mandate.  In fact, the Court has occasionally deviated from the categorical approach in interpreting the very statute at issue in Torres, and could do so again, as Justice Breyer suggested at oral argument.  Were it to do so here, the argument that "described in" has to exclude jurisdictional elements unravels; immigration courts could look for jurisdictional facts in state offenses that matched the federal jurisdictional elements.

Lockhart v. United States - Argument Recap, and Ruminations on Canon Entrepeneurship, Legal Indeterminacy, and Legislative History

The argument in Lockhart was one of the more fun and rich arguments on statutory interpretation I've read in a while.  Even if you have no interest in the issue in the case (what kinds of prior convictions for sexual abuse increase mandatory minimums for child pornography), you should read this transcript if you care about current trends in statutory interpretation.  With that being said, I'll offer some post-argument predictions, and some comments on the broader themes of the argument.
 
Predictions

As readers of this blog will recall, Lockhart's about whether the phrase "involving a minor or ward" modifies only "abusive sexual conduct" in the list "aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward" (a list of sentence-enhancing priors for child pornography sentencing purposes), or modifies all three types of offenses.  The government, awkwardly, reads sexual abuse and abusive sexual conduct as synonyms, with the result that "involving a minor or ward" merely modifies one of two synonymous phrases and thus does no meaningful work.  As far as I can tell, not a single Justice bought this reading of the statute.  Insofar as some Justices were inclined to support the government's bottom line - that "involving a minor or ward" only modifies "abusive sexual conduct" - they clearly intend to get there by reading "abusive sexual conduct" to mean something less than "sexual abuse."  Having made that move, the statute could then plausibly be read to require child victims only for lesser abusive-conduct offenses, but not for more serious sexual-abuse offenses.

How though, one might ask, would one distinguish sexual abuse from abusive sexual conduct?  Isn't abusive sexual conduct sexual abuse by its terms?  One solution, which Justice Alito (and to a lesser extent the Chief Justice) pursued throughout argument with great persistence, is that substantive federal offenses use very similar terms and give them different definitions.  Sections 2241 and 2242 of Title 18 define aggravated sexual abuse and sexual abuse, respectively, to involve abusive sexual acts (which Section 2246 defines to require, at the least, unmediated contact with genitalia), while Section 2244 of Title 18, in tandem with Section 2246, defines "abusive sexual contact" to require abusive contact with clothed genitalia, or various erogenous organs.  Couldn't these definitions explain the elusive distinction between sexual abuse and abusive sexual conduct?

As Ann McConnell, assistant to the SG, forthrightly conceded in fighting off this friendly attempt to rescue the government's case, the federal definitions of sexual abuse and abusive sexual contact probably aren't much help here.  One problem, of course, is that Congress didn't use the phrase "abusive sexual contact" in the child-pornography sentencing provision; it wrote "abusive sexual conduct."  Another problem is that if Congress had really meant to say that state convictions for sexual abuse and abusive sexual contact as defined in federal law were priors, it could have expressly incorporated those definitions - as it in fact did in another recidivist sentencing provision.  

These difficulties notwithstanding, Justice Alito wasn't taking no for an answer.  When McConnell said the government didn't think the child pornography sentencing provision was tacitly referencing the definitions of sexual abuse and abusive sexual contact because it could have explicitly referenced them, Alito sarcastically asked whether abusive sexual conduct and sexual abuse were just "catchy phrases that came to [Congress's] mind," and suggested that while Congress gets "a 'D' for their drafting of this statute," he was nevertheless pretty sure that Congress was thinking of its definition of abusive sexual contact when it wrote about state convictions relating to abusive sexual conduct.

Outside, though, of Alito and the Chief Justice, who seem fairly bent on saving the government from the infirmities of its position, it's difficult to find support in this transcript for the government.  Going down the list, in no particular order:

Justice Kennedy asked a series of noncommittal, narrow questions that eventually centered on the role of lenity in the case, which isn't a great sign for the government.  It should be noted, though, that his questions doubted that lenity should be stronger as to sentencing provisions, so perhaps his concern was merely with assuring himself that only normal-strength lenity applied.

Justice Breyer initially expressed some interest in Alito's theory.  But when it was the government's turn to argue, Breyer challenged McConnell to explain why the statute wasn't at least ambiguous.  After McConnell gave her reasons, he then suggested that he found all of them wanting, and asked why, if the parties' textual arguments were in equipoise, the legislative history of the statute, which described the various sexual abuse priors as child abuse offenses, shouldn't control.  

Justice Scalia entered argument with his mind clearly made up for Lockhart, seemingly taking the view that, while the ambiguities in the statute favored Lockhart on balance, the statute was ambiguous enough that lenity resolved the case in Lockhart's favor.  

Justice Kagan, in the beginning of argument, suggested that abusive sexual conduct possibly covered some set of lesser sexual-abuse offenses (like indecent exposure to minors), and that on that reading, it would make sense if the least severe set of offenses only counted as priors if they involved child victims.  But at the end of McConnell's argument, she stated pretty flatly that in her view, Lockhart's preferred canon for disposing of the case, the newly minted series-qualifier canon (more on this below), on which modifiers modify an entire list in certain circumstances, likely "trumped" the government's preferred canon, the last antecedent rule, under which a modifier modifies the last possible antecedent only.  

Justice Ginsburg didn't say much at argument, but asked the government a few questions - albeit not especially pointed ones - about a letter by an acting assistant attorney general, written a couple years after the sentencing provision at issue in the case was enacted, that appears to have embraced Lockhart's reading of the provision.

Justice Sotomayor asked just two questions.  One was skeptical of the government's view that "abusive sexual conduct involving a minor or ward" may have been added to the statute simply to clarify that statutory rape was a prior; she asked why, if that was the case, Congress didn't just write "sexual conduct involving a minor or ward."  The other question, put on rebuttal to Lockhart's federal public defender, Edward Zas, was why Congress would have made federal sexual abuse crimes enhancing priors irrespective of victim age, but not done the same with state sexual abuse crimes.

Justice Thomas, of course, asked no questions.

Prediction: I think Scalia, Breyer and Kagan to a lesser extent are pretty unavailable votes to the government.  It is barely possible that the government could eke out a narrow majority comprised of Alito, Roberts, and at least three of Sotomayor, Ginsburg, Thomas and Kennedy, but that would require a lot of breaks and a fairly improbable alignment.  It's hard to imagine Ginsburg or Sotomayor providing the fifth vote to affirm Lockhart's sentence while Scalia votes for Lockhart on the basis of lenity.  

Themes

Canon entrepeneurship: This case has been framed by the parties as a battle of dueling canons - the rule of the last antecedent, and the series-qualifier rule.  The series-qualifier rule, though, was first discovered by name, at least, in Justice Scalia's 2012 book, Reading Law.  And as Neal Goldfarb points out at his blog, LawnLinguistics, while the series-qualifier rule has some antecedents in caselaw, it was never stated in Scalia's precise formulation, or anything too close to it, until Scalia's formulation.  Particularly, Goldfarb says that the closest thing to series-qualifier in the Court's cases is a fairly distant relative, namely a kind of non-canon that says modifiers modify all their possible antecedents when it makes sense for them to do so, while Scalia's formulation requires global modification in the case of any "straightforward, parallel construction" involving all the verbs or nouns in a list.  Moreover, the somewhat closer cases in the lower federal courts and state courts that Scalia cites never applied series-qualifier or antecedents thereof, prior to Reading Law, to postpositive modifiers (i.e., modifiers that follow the nouns they modified) - the very kind of modifier at issue here.  

But even though series-qualifier may be Scalia's extremely recent invention, and has yet to be mentioned by the Court in a case since Reading Law was published, this didn't stop the government from beginning its argument by framing the case as a battle between "two competing canons of statutory interpretation," or acknowledging at argument that something called "the series-qualifier canon" exists and arguing that it didn't apply.  Nor did it stop Justice Kagan from holding forth on the interplay between "that series-qualifier rule" and the rule of the last antecedent, reciting the elements of the rule as Scalia formulated them, and suggesting that Lockhart's a case where Scalia's canon "trumps" one of the oldest canons around.  Nor did it cause anyone to question Lockhart's counsel on the provenance of a canon for which his brief largely cites to Scalia's book.

What's going on here?  One possibility is that the SG and Justices assume Scalia's book accurately describes the canons and the cases it cites, even though it's been famously pilloried as inaccurate on just these points by Judge Posner.  Another possibility is that the Justices, and especially the SG, find it awkward to question the accuracy of a sitting Justice's scholarship.  I suspect both of these explanations have some merit.  But the most interesting possibility is that the Justices don't much care about the provenance or age of a linguistic canon, so long as it makes a certain kind of sense.  

If that's true, and I think it is, two things follow.  One, that the Court doesn't care whether Congress drafts against the background of a canon or even has advance notice of one, but rather believes that a canon is valuable insofar as it accurately describes congressional linguistic practices and congressional intent (or "objectified" intent, if one's a textualist of a certain stripe).  Two, the Court's apparent openness to new canons, particularly countercanons to existing ones, suggests that the general academic posture to canons, which assumes that they're a fixed set of hidebound hoary maxims that misread congressional intent and criticizes them on that basis, is mistaken.  Instead, we should be talking about how to improve the canons - or, even if one believes that even a perfected set of canons will generate error (which of course it would), debating whether judges would really get cases right more often if they engaged in free-form contextualism.  Unfortunately, while scholarship of that kind could be quite influential, there isn't much of a market for articles on specific canons, especially linguistic ones, which has left courts with virtually no guidance as they formulate rules that purport to reflect legislatures' linguistic practices.

Legal indeterminacy:  One underappreciated and subtle difference between textualism and intentionalism, which this argument brought out, is that textualism is, at least in theory, far more open to the possibility that a statute's meaning is indeterminate.  Scalia and Breyer's differing approaches to the difficult textual ambiguity Lockhart presents nicely illustrate this.  Here is Scalia introducing the rule of lenity into the argument: "we've been discussing these dueling canons and so forth.  My goodness, I have no -- I have no assurance what the right answer is.  But I know that somebody could read this and think it means what the petitioner says it means.  And if that's the case, it seems to me the rule of lenity comes into play." 

Here, it appears to me, Scalia is suggesting that this is possibly a case where statutory meaning is indeterminate.  Now, one might think of lenity as just another canon that determines statutory meaning.  But I think that's wrong.  To rule for a defendant on lenity isn't to make a claim about statutory meaning at all.  It's to say that, in cases of irresoluble ambiguity, a default rule favors criminal defendants, not because anyone thinks that Congress necessarily enacted or intended the defendant-favorable rule, but because of concerns about notice and judicial criminal-lawmaking.  (At most, lenity constructs meaning, but plays no role in interpreting it.)  Because irresolubly ambiguous and vague texts exist, textualism is committed to the view that irresolubly ambiguous and vague statutes exist - which is a part of why, I think, ambiguity-resolving rules like Chevron and lenity have such appeal to Scalia.

On the other hand, Justice Breyer, having found the textual arguments in the case at "equipoise," argued that "before turning to the rule of lenity . . . the legislative history helps," and that the legislative history ultimately made manifest Congress's intentions and thus the meaning of the statute.  For Breyer is not so quick to think that statutory meaning runs out.  As an intentionalist, he believes that even if a statute is textually ambiguous on a question, Congress may nonetheless have had a definite intention on that question, and that that intention is law.  Of course, intentionalists, Breyer included, do not believe that a statute always has some singular intention behind it on every litigable question under the statute.  Chevron, a deeply intentionalist opinion by a committed intentionalist, Justice Stevens, acknowledges that there are cases where Congress lacks "an intention on [a] precise question at issue."  But in theory, those cases are a subset of the cases where textualists find irresoluble ambiguity, which is why, in part, Justice Breyer has never been able to make peace with Chevron as it's commonly understood today - to trigger deference whenever a statute is textually ambiguous.*

* Which isn't at all how it's explained in the Chevron opinion itself.  As Frederick Liu has recently pointed out, in addition to the language I quoted above from footnote 9, Stevens cites a passage from Roscoe Pound in footnote 10, in which Pound discusses "cases in respect to which the lawmaker had no intention."  These, and only these, were the cases where Stevens appears to have envisaged Chevron deference kicking in. 

Continuing debates over legislative history: Reliance on legislative history is at its lowest ebb on the Court right now in nearly a century, but I believe it will make a comeback, because the arguments for its use are getting smarter.  Defenders of legislative history used to conceptualize it as a kind of revelatory gloss on what a statute meant, which opened them up to arguments that intentionalists were allowing Congress to delegate the details of statutory meaning to single members or committee staff, in violation of the non-delegation doctrine and the requirements of bicameralism and presentment.  Today, intentionalists tend to justify legislative history as a synopsis of the legislator/legislative staff-created materials on which legislative counsel-penned statutory text is based.  What is the non-delegation critique of that story?  This new debate played out in the Lockhart argument, as Breyer, the Court's beleagured defender of legislative history, took a minute to defend his reliance on committee materials before and after getting around to asking a specific question:

the report, the way these are actually written is that a general idea is given to a person whose job it is to draft.  And that drafter tries to put in words the general  intention that's been described, and the report is used to describe what the general intention was...

So I read [the committee report] and said, short, but clear. And that's what the drafter would have been looking at when -- the first one, anyway -- working with the staff of the committee when trying to translate general intentions of senators and representatives into actual language. And I think it's not contrary to popular belief to say that senators and representatives do hire staff to do such things and do not sit there with pen and pencil thinking, where does the "or" go?

After Justice Breyer asked this question, Scalia asked the SG's assistant whether she thought "Congress can leave it to its staff to decide what a statute means . . . Isn't legislative power nondelegable?"  This non-delegation critique of Breyer's argument, though, seems like a non sequitur; at what stage in his account of legislation has Congress "le[ft] it to its staff to decide what a statute means"?  What Breyer says it leaves to staff is statutory text (which is undeniable), and if Scalia thinks that violates the non-delegation doctrine, it's hard to see why the response would be an interpretive approach that solely looks to the product of the unlawful delegation.