The Court heard argument Wednesday in Campbell-Ewald v. Gomez. As readers who follow class-action law will know, Campbell-Ewald is one of three potential class-action killers the Court will hear this term (the other two being Spokeo and Tyson). Of the three, it was widely thought, going into argument, that Campbell-Ewald was the one the Court was least likely to bite on, for several reasons.
Campbell-Ewald is about whether a pre-certification offer of complete relief to a named class plaintiff moots out his claims, and thus his as-yet-uncertified class-action. One reason to think that a majority of the Court would never hold that is that, in Genesis Healthcare v. Symczyk, a recent case which the Court took on the assumption that an offer of complete relief to a named plaintiff in a FLSA collective action moots out the named plaintiff's claim, Justice Kagan wrote for four dissenters that the Court never should have taken the case on that assumption because the assumption was laughably wrong. That meant the plaintiffs' bar would need just one more vote to win Campbell-Ewald - though frankly, the same could have been said in Wal-Mart and Comcast, and will be said again in Spokeo and Tyson.
Another reason to think the plaintiffs' bar would prevail is a sense that the class defense bar is asking for too much in Campbell-Ewald - a get-out-of-jail-free card in, at the least, virtually any class action where plaintiffs seek statutory damages, and potentially any class action where a named plaintiff seeks some quantifiable amount of monetary relief. Another reason is that the defendant's arguments in Campbell-Ewald are, by necessity, fairly incoherent, on which more immediately below. Finally, two months ago, the circuit split undergirding the Campbell-Ewald cert grant collapsed when the Seventh Circuit, in an opinion by Judge Easterbrook - no liberal or class-action maven - accepted Justice Kagan's dissent in Genesis in full two months ago and reversed its precedent without even bothering to go en banc.
Then oral argument happened, and it didn't go so well for the plaintiffs' bar, primarily because one of the Genesis dissenters, Justice Breyer, appeared - emphasis on appeared - to be primed to hand a pyrrhic victory to class-action plaintiffs, holding that their claims aren't mooted by an offer of complete relief, but that courts should routinely enter pre-certification judgment in favor of class plaintiffs if they've received tenders of complete relief. Before getting there, some necessary context about the parties' arguments.
The defendant in this case, represented by Gregory Garre, claims that its offer of complete relief to a named plaintiff in a class action under the Telephone Consumer Protection Act (which affords winning plaintiffs capped statutory damages) mooted out the plaintiff's claim. Normally, of course, moot claims are dismissed for lack of jurisdiction. But Garre and the class-defense bar couldn't seriously argue that when a class plaintiff rejects an offer of complete relief, a court should rule that the rejected offer moots the case and dismiss it, leaving the rejecting plaintiff with nothing. So instead, they inventively argue that when a case is mooted by virtue of a rejected offer for complete relief, a court should enter judgment in the amount of the offer. This is inventive because, if a case is moot, a court wouldn't seem to have jurisdiction to enter a money judgment. The plaintiff in this case, represented by Jonathan Mitchell, former SG of Texas, therefore argues that the defendant has conceded away mootness by calling for a judgment - as does the SG's office.
This is a fairly devastating argument, I think, and on Wednesday a number of Justices clearly thought so, but it opens the door to something functionally just as poisonous to class-actions as the defense bar's mootness theory. If entering judgment in favor of a plaintiff who receives an offer of complete relief seems like a sensible enough solution to the problem of offers of complete relief and plaintiffs that refuse to accept them, but mootness is incompatible with that solution, why not just say that courts should routinely enter merits judgments for plaintiffs in the amount of offers for complete relief that they receive without incoherently describing their claims as moot? The only answer is that, in a class case, an offer of complete relief to an individual plaintiff that doesn't also offer class certification and class relief isn't really an offer of complete relief.
As Ronald Mann accurately reports at Scotusblog, on Wednesday Justice Breyer expressed great interest in a proposal in an AFL-CIO amicus brief, on which courts would enter forced judgment in favor of plaintiffs if defendants made a complete tender of relief - not just an offer. (Why exactly the AFL-CIO would ever put such a proposal in a brief that purportedly supports the plaintiff in this case and states it's intended to further the AFL-CIO's interest in the enforcement of labor laws by class-action, I haven't the least idea.) The brief itself says that such a tender would create mootness, but Justice Breyer disavowed that part of their brief, said he was focused on its "practical" import, and asked Mr. Mitchell why courts couldn't, at least, enter forced judgments in favor of plaintiffs upon pre-certification tenders of complete relief. When Mitchell demurred, saying that such tenders wouldn't be complete because they wouldn't contain class certification and relief, Justice Breyer expressed incredulity.
This exchange notwithstanding, I continue to think that the outcome of Campbell-Ewald is in Justice Kennedy's hands. I don't doubt that, when Justice Breyer asked about the AFL-CIO's brief, he sincerely thought the brief had a good idea, or was even right. Of all the Justices, Justice Breyer is the most transparent questioner on the Court - someone who says whatever is on his mind at the moment and invariably engages in a genuine dialogue with the attorneys, instead of using argument as an opportunity to convince his colleagues, speechify, or to perform studied indecision. However, as the Court's most transparent questioner - someone who uses argument to make decisions and shares his spontaneous reactions to argument as it unfolds, rather than unspooling planned lines of attack - he is also at times its most likely to express a view that he later ceases to hold in conference. Of all the Justices on this Court or the Rehnquist Court, I doubt that any have so often used oral argument to float ideas that appear in amicus briefs but never ultimately appear in the opinions of the Court (even those Justice Breyer writes) or to float "practical" solutions that none of the parties want and that likewise never appear in the Court's opinions. I cannot believe that Justice Breyer would vote to let class defendants impose pre-certification forced judgments on class plaintiffs, whether by way of mootness or otherwise. Such a vote would destroy the class-action device in the very cases where it's most useful (though at times most destructive) - low-value statutory damages actions.
So the case is likely in Justice Kennedy's hands, and though Justice Kennedy asked tough questions of both sides, I thought he leaned fairly obviously in favor of the plaintiff. At the very beginning of argument, he told Mr. Garre, "if you want us to write an opinion and say, oh well, a settlement offer is the same as a judgment, that just doesn't equate with the Federal Rules of Civil Procedure or with our cases." Later, in perhaps an even scarier moment for the class-defense bar, Justice Kennedy asked Garre whether a rejected offer of complete relief could be considered as a factor in the certification decision. This, I think, rather clearly presages an opinion where the Court would hold that an offer of complete relief neither moots a case nor requires an entry of forced judgment in favor of plaintiffs, but is some sort of factor in certification that defendants can point to, perhaps with respect to adequacy of representation.
It's true that at the start of Mr. Mitchell's argument, Justice Kennedy asked Mitchell what adversity between the parties remains after an offer of complete relief, and stated that above and beyond past injury-in-fact and redressability, "there has to be adversity" for a court to possess jurisdiction. However, Justice Kennedy held for the Court just two years ago that there doesn't have to be adversity for federal courts to have jurisdiction over a case - in Windsor, where the United States petitioned for cert to seek affirmance of a decision in which they'd lost. There, Justice Kennedy wrote for the Court that adversity is a mere prudential matter of "judicial self-governance," and led the Court to hear Windsor in spite of a lack of adversity in part because Congress defended DOMA. Will Justice Kennedy now hold that as a purely prudential matter of judicial self-governance, courts should zap class-actions that defendants seek to pick off by offering a single named plaintiff a pittance in statutory damages, even though as a functional matter such actions retain all the adversity in the world? (Which is to say, even after an offer of complete relief, litigation between a class representative and a class defendant hardly turns into the "friendly, non-adversary proceeding" Windsor says the prudential adversity requirement is supposed to prevent courts from hearing.) Possible, but unlikely.
Besides promising to be a rare Supreme Court win for the plaintiffs' bar, Campbell-Ewald promises to potentially clarify the extent to which the adversity requirement, which Windsor reclassified as prudential but didn't otherwise shed much light on, really has any bite. It's very difficult to argue that an offer of complete relief for a past violation of some statute has anything to do with mootness in the traditional sense; it doesn't moot out the plaintiff's injury, and it doesn't prevent a court from redressing that injury. What it does is vitiate adversity between the parties; the plaintiff wants a judgment ordering the defendant to pay what the defendant is already willing to pay. A great deal was said on Wednesday about consent judgments and how the fact that courts enter them bears on the status of the adversity requirement. For Mitchell and the SG's office, the fact that courts enter consent judgments after parties settle a case shows that even accepted settlement offers, much less unaccepted ones, don't moot cases or otherwise deprive courts of jurisdiction. Rather, the existence of a settlement is, on this view, a legal reason to enter a merits judgment that mirrors it. Justice Scalia, on the other hand, maintained at argument that settlements do moot cases, that courts nevertheless somehow maintain power to enter consent judgments after settlement, but that courts cannot, after settlement, actively decide the merits of a claim above and beyond entering a judgment reflecting what the parties agreed to.
I think it's clear that Justice Scalia's view isn't very tenable. Either he needs to take the view, recently argued in a paper by Michael Barry, that federal courts just can't enter consent judgments, or he needs to take the view, recently argued in an article by Jim Pfander, that federal courts have what Pfander calls non-contentious jurisdiction. His hybrid view, on which courts lose jurisdiction upon settlement but can nevertheless enter consent judgments, just won't work. One reason it won't work is that it's very well-settled that federal courts can't enter consent judgments on claims as to which they lack subject-matter jurisdiction; to maintain that they can enter consent judgments even though adversity is jurisdictional, one would have to argue that some jurisdictional defects (SMJ) deprive courts of authority to enter even a consent judgment, while others (adversity) don't. The only coherent options are taking adversity very seriously, or not taking it very seriously at all. Currently, doctrine does neither; it acknowledges that courts can enter consent judgments despite a lack of adversity, but doesn't say why, and classifies the adversity requirement as prudential but fails to explain, outside of the exotic context of Windsor, when courts must adhere to it. Should the Court hold in Campbell-Ewald that a rejected offer of complete relief doesn't deprive courts of power, jurisdictionally or prudentially, to decide a case's merits, even if only by way of entering a judgment in the form of the offer of complete relief, that would go a long way towards clarifying that the adversity requirement isn't much of a requirement at all.
Friday, October 16, 2015
Tuesday, October 13, 2015
Montgomery v. Louisiana - A Jurisdiction-Only Recap
The Court heard argument in Montgomery v. Louisiana today, and much to my delight given my views on the matter spent most of the argument discussing whether they had jurisdiction. It's not completely obvious that there are five votes against jurisdiction, but after the wipe-out Montgomery's counsel suffered in reaching the merits (i.e., he never got there), and the extremely friendly reception the Court-appointed amicus arguing against jurisdiction received, I find it difficult to believe that the Court will find jurisdiction -- unless they cobble together a majority between Justices who see a federal question absent Teague's constitutionalization and Justices who want to constitutionalize Teague's exceptions.
In brief, the jurisdictional difficulty here is as follows. This case is about whether the Louisiana Supreme Court correctly applied Teague v. Lane, a Supreme Court decision on retroactivity in federal habeas, in state collateral proceedings in holding that Miller v. Alabama doesn't apply retroactively. The Court has never held that Teague sets a retroactivity floor that binds the states, and has positively held it does not set a retroactivity ceiling. Meanwhile, the Louisiana Supreme Court, in a prior decision, made what it described as a completely voluntary choice to borrow Teague for its state collateral proceedings, and, following that precedent, applied Teague in proceedings below. If Teague is a habeas decision that doesn't control state-court proceedings, does a state court's voluntary application of Teague present a federal question as to whether it applied Teague correctly? The parties and the SG say yes (one of the parties, the defendant, says that even if that's wrong, Teague's exceptions do bind the states); the Court appointed an amicus to argue otherwise.
I thought Richard Bernstein, the Court-appointed amicus, had an exceptionally easy time of it at argument. Here are the questions he was asked, in between long uninterrupted remarks, including a completely uninterrupted rebuttal:
(1) a softball from Justice Ginsburg on what the adequate and independent state ground in this case was; Bernstein answered that it was the state's choice to apply Teague as state law.
(2) a question from Justice Sotomayor on whether the Court at least had jurisdiction to decide if Teague was binding on the states; Bernstein said yes, of course, but that it shouldn't be.
(3) a tentative question from Justice Kennedy on why Teague couldn't be binding, in which he acknowledged that if he were to argue it was, "I'm not quite sure what case I would have to support me."
(4) A more pointed question from Justice Kennedy on whether Bernstein was saying that the Supremacy Clause doesn't apply on collateral review.
(5) A pair of questions from Justice Sotomayor on how Bernstein distinguished Standard Oil v. Johnson, which is easily distinguished and which Bernstein distinguished well.
(6) A long series of questions from Justice Breyer on why Teague shouldn't be binding, including a hypothetical on whether a hypothetical decision that it was unconstitutional to prosecute witchcraft wouldn't have to be retroactive as a matter of due process.
(7) A question from Justice Kagan suggesting that Bernstein overstated the extent to which making Teague mandatory would in essence force the states to afford an implied judicial remedy.
After Bernstein argued it was Montgomery's turn, and in his fifteen minutes of argument his counsel, Mark Plaisance, never got to say a word about the merits of his claims. Right out of the gate Justice Ginsburg, a must-have vote for Montgomery, said she didn't think the Court had jurisdiction:
Michael Dreeben, the SG office's criminal procedure guru, argued next. About half of his argument was devoted to jurisidictional questions before the Chief Justice all but instructed the Court to stop asking jurisdictional questions and turn to the merits - this on page 31 of a 71-page transcript. Before that happened, the Chief asked if the Louisiana Supreme Court couldn't dump Teague on remand once the Court enlightened them as to what it meant. Dreeben acknowledged it could. Justice Breyer, who for most of the argument seemed a safe vote for jurisdiction on some ground, asked whether, if the Court accepted the SG's argument, the Court would be bogged down in state-law evidence cert petitions where state supreme courts had held they would follow the federal courts' interpretations of parallel federal rules of evidence. Dreeben said that state courts rarely tethered themselves tightly enough to the Federal Rules and interpretations thereof to generate federal jurisdiction, but acknowledged that some cases of that kind could come to the Court under the government's jurisdictional theory, which seems a rather damning concession. Justices Scalia and Alito continued to doubt jurisdiction.
Finally, Kyle Duncan argued for Louisiana. He too supported jurisdiction, and only took about a quarter of his time on it. Most of that time was spent on an attempt to rely on the quartet of cases cited in the SG's brief that I discussed in my last post, and on fending off Justices Scalia and Alito's various distinctions of those cases, some of which were anticipated in my last post and some of which I hadn't thought of. Justice Alito, for example, suggested that in those cases there was no alternate mechanism of federal review, while here there is - habeas. Justice Kagan, at one point, defended Duncan's reliance on the SG's cases, reasoning that once Louisiana chose to follow Teague, "all outcomes are dictated by Teague" in just the same way that in Ohio v. Reiner (a state-law transactional immunity case where a transactional immunity statute looked to whether a witness had a valid Fifth Amendment privilege), the outcome was dictated by the Fifth Amendment. The difference between Reiner and this case, as I explained in my last post, is that in Reiner there was a real federal question - did a witness have a Fifth Amendment privilege - whereas here there's only a phantom one - what would Teague say about retroactivity in this proceeding, if, contrary to fact (assuming Teague isn't binding on the states), Teague had something to say about it.
PREDICTION: The jurisdictional question in Montgomery is hard to call because it's really two questions: is there jurisdiction if Teague isn't binding on the states, and if not, is Teague binding on the states. It's apparent that Justices Scalia and Alito oppose any path to jurisdiction, while Justice Ginsburg expressed skepticism of both paths and is really too much of a formalist on matters of jurisdiction to buy into the first. The Chief Justice was a fairly clear skeptic of the first path, and though he did dissent in Danforth, which held that Teague does not cap retroactivity in the states, I don't think a ceiling/floor distinction of Danforth would appeal to him, as it obviously does to other Justices. I would be surprised if Justice Thomas differed from Scalia and Alito on these issues, and if that's right there's a very possible Scalia-Alito-Roberts-Ginsburg-Thomas majority against jurisdiction.
On the other side of the coin, Justices Sotomayor and Breyer would obviously like to hold that Teague's exceptions are mandatory, but wouldn't appear to have the votes. Justice Kagan accepts the SG's theory that a state-law claim that permissively incorporates non-applicable federal law presents a federal question, but seemed to be the only Justice who did, or at least the only one who clearly did. Justice Kennedy expressed some tentative curiosity about constitutionalizing Teague, and I think one could make a fair case that his priors - federalism, his famous interest in liberty - would lead him to a result where states have to apply Teague's exceptions but get AEDPA deference in doing it, rather than a result where states don't necessarily apply Teague and state prisoners get a first crack at arguing Teague on habeas. It should be noted that he, like Roberts, dissented in Danforth and may be attracted to a floor/ceiling distinction of Danforth.
My somewhat implausible bottom line, then, is that Scalia, Alito, Thomas, Roberts and Ginsburg find no jurisdiction, while Sotomayor, Breyer, and possibly Kennedy write that Teague's exceptions are mandatory, and Justice Kagan dissents separately (and possibly joins the main dissent) to say there was jurisdiction here even if Teague weren't binding on the states. If that's broadly wrong (it could easily be wrong in its particulars), it will be because Justice Ginsburg votes to make Teague binding. What I find virtually impossible, after today's argument, is that a majority will buy the SG's argument that permissively subscribed-to, non-controlling federal law in state-court decisions presents federal questions for the Court's review.
In brief, the jurisdictional difficulty here is as follows. This case is about whether the Louisiana Supreme Court correctly applied Teague v. Lane, a Supreme Court decision on retroactivity in federal habeas, in state collateral proceedings in holding that Miller v. Alabama doesn't apply retroactively. The Court has never held that Teague sets a retroactivity floor that binds the states, and has positively held it does not set a retroactivity ceiling. Meanwhile, the Louisiana Supreme Court, in a prior decision, made what it described as a completely voluntary choice to borrow Teague for its state collateral proceedings, and, following that precedent, applied Teague in proceedings below. If Teague is a habeas decision that doesn't control state-court proceedings, does a state court's voluntary application of Teague present a federal question as to whether it applied Teague correctly? The parties and the SG say yes (one of the parties, the defendant, says that even if that's wrong, Teague's exceptions do bind the states); the Court appointed an amicus to argue otherwise.
I thought Richard Bernstein, the Court-appointed amicus, had an exceptionally easy time of it at argument. Here are the questions he was asked, in between long uninterrupted remarks, including a completely uninterrupted rebuttal:
(1) a softball from Justice Ginsburg on what the adequate and independent state ground in this case was; Bernstein answered that it was the state's choice to apply Teague as state law.
(2) a question from Justice Sotomayor on whether the Court at least had jurisdiction to decide if Teague was binding on the states; Bernstein said yes, of course, but that it shouldn't be.
(3) a tentative question from Justice Kennedy on why Teague couldn't be binding, in which he acknowledged that if he were to argue it was, "I'm not quite sure what case I would have to support me."
(4) A more pointed question from Justice Kennedy on whether Bernstein was saying that the Supremacy Clause doesn't apply on collateral review.
(5) A pair of questions from Justice Sotomayor on how Bernstein distinguished Standard Oil v. Johnson, which is easily distinguished and which Bernstein distinguished well.
(6) A long series of questions from Justice Breyer on why Teague shouldn't be binding, including a hypothetical on whether a hypothetical decision that it was unconstitutional to prosecute witchcraft wouldn't have to be retroactive as a matter of due process.
(7) A question from Justice Kagan suggesting that Bernstein overstated the extent to which making Teague mandatory would in essence force the states to afford an implied judicial remedy.
After Bernstein argued it was Montgomery's turn, and in his fifteen minutes of argument his counsel, Mark Plaisance, never got to say a word about the merits of his claims. Right out of the gate Justice Ginsburg, a must-have vote for Montgomery, said she didn't think the Court had jurisdiction:
JUSTICE GINSBURG: Isn't it just like a State saying, we have a Fourth Amendment, and the Federal Constitution has a Fourth Amendment. We are going to apply our own Constitution, but in applying it, we will follow the Federal precedent? I think we would say, in that case, the case has been decided on the State constitutional ground, even though the State court, in interpreting that ground, is looking to Federal decisions.Plaisance had no real answer to this question, other than to cite Michigan v. Long and say that the state supreme court had to do more (what, exactly, wasn't clear) to avoid Supreme Court review than say that they were not bound to apply Teague and were only applying it as a matter of state law. This earned him a series of hostile questions from Justices Scalia and Alito, who appeared throughout the argument to be safe votes against jurisdiction. Chief Justice Roberts suggested that he couldn't see, after the Court's holding in Danforth that Teague was an interpretation of the habeas statute, how state courts' voluntary applications of an interpretation of a federal statute for state-law purposes could be reviewable by the Court. Justice Ginsburg suggested that if the Court found jurisdiction by constitutionalizing Teague, Montgomery would be making matters worse for similarly situated prisoners, because state courts' application of Teague would receive AEDPA deference. Justice Sotomayor asked Plaisance to assume the Court rejected his argument on Michigan v. Long and turn to whether Teague was binding on the states, but Plaisance ran out of time to say anything about that.
Michael Dreeben, the SG office's criminal procedure guru, argued next. About half of his argument was devoted to jurisidictional questions before the Chief Justice all but instructed the Court to stop asking jurisdictional questions and turn to the merits - this on page 31 of a 71-page transcript. Before that happened, the Chief asked if the Louisiana Supreme Court couldn't dump Teague on remand once the Court enlightened them as to what it meant. Dreeben acknowledged it could. Justice Breyer, who for most of the argument seemed a safe vote for jurisdiction on some ground, asked whether, if the Court accepted the SG's argument, the Court would be bogged down in state-law evidence cert petitions where state supreme courts had held they would follow the federal courts' interpretations of parallel federal rules of evidence. Dreeben said that state courts rarely tethered themselves tightly enough to the Federal Rules and interpretations thereof to generate federal jurisdiction, but acknowledged that some cases of that kind could come to the Court under the government's jurisdictional theory, which seems a rather damning concession. Justices Scalia and Alito continued to doubt jurisdiction.
Finally, Kyle Duncan argued for Louisiana. He too supported jurisdiction, and only took about a quarter of his time on it. Most of that time was spent on an attempt to rely on the quartet of cases cited in the SG's brief that I discussed in my last post, and on fending off Justices Scalia and Alito's various distinctions of those cases, some of which were anticipated in my last post and some of which I hadn't thought of. Justice Alito, for example, suggested that in those cases there was no alternate mechanism of federal review, while here there is - habeas. Justice Kagan, at one point, defended Duncan's reliance on the SG's cases, reasoning that once Louisiana chose to follow Teague, "all outcomes are dictated by Teague" in just the same way that in Ohio v. Reiner (a state-law transactional immunity case where a transactional immunity statute looked to whether a witness had a valid Fifth Amendment privilege), the outcome was dictated by the Fifth Amendment. The difference between Reiner and this case, as I explained in my last post, is that in Reiner there was a real federal question - did a witness have a Fifth Amendment privilege - whereas here there's only a phantom one - what would Teague say about retroactivity in this proceeding, if, contrary to fact (assuming Teague isn't binding on the states), Teague had something to say about it.
PREDICTION: The jurisdictional question in Montgomery is hard to call because it's really two questions: is there jurisdiction if Teague isn't binding on the states, and if not, is Teague binding on the states. It's apparent that Justices Scalia and Alito oppose any path to jurisdiction, while Justice Ginsburg expressed skepticism of both paths and is really too much of a formalist on matters of jurisdiction to buy into the first. The Chief Justice was a fairly clear skeptic of the first path, and though he did dissent in Danforth, which held that Teague does not cap retroactivity in the states, I don't think a ceiling/floor distinction of Danforth would appeal to him, as it obviously does to other Justices. I would be surprised if Justice Thomas differed from Scalia and Alito on these issues, and if that's right there's a very possible Scalia-Alito-Roberts-Ginsburg-Thomas majority against jurisdiction.
On the other side of the coin, Justices Sotomayor and Breyer would obviously like to hold that Teague's exceptions are mandatory, but wouldn't appear to have the votes. Justice Kagan accepts the SG's theory that a state-law claim that permissively incorporates non-applicable federal law presents a federal question, but seemed to be the only Justice who did, or at least the only one who clearly did. Justice Kennedy expressed some tentative curiosity about constitutionalizing Teague, and I think one could make a fair case that his priors - federalism, his famous interest in liberty - would lead him to a result where states have to apply Teague's exceptions but get AEDPA deference in doing it, rather than a result where states don't necessarily apply Teague and state prisoners get a first crack at arguing Teague on habeas. It should be noted that he, like Roberts, dissented in Danforth and may be attracted to a floor/ceiling distinction of Danforth.
My somewhat implausible bottom line, then, is that Scalia, Alito, Thomas, Roberts and Ginsburg find no jurisdiction, while Sotomayor, Breyer, and possibly Kennedy write that Teague's exceptions are mandatory, and Justice Kagan dissents separately (and possibly joins the main dissent) to say there was jurisdiction here even if Teague weren't binding on the states. If that's broadly wrong (it could easily be wrong in its particulars), it will be because Justice Ginsburg votes to make Teague binding. What I find virtually impossible, after today's argument, is that a majority will buy the SG's argument that permissively subscribed-to, non-controlling federal law in state-court decisions presents federal questions for the Court's review.
Saturday, October 10, 2015
Montgomery v. Louisiana - A Comment on the Jurisdictional Question
On Tuesday the Court hears Montgomery v. Louisiana, a case concerning whether Miller v. Alabama, a decision in which the Court held sentencing juveniles to life without the possibility of parole was generally unconstitutional, applies retroactively. The Louisiana Supreme Court, in a collateral challenge to a final life sentence, held Miller doesn't apply retroactively, choosing to adopt as its state-law retroactivity standard Teague v. Lane, a case on retroactivity for purposes of federal habeas review. Since the Court has held that that Teague, at least, does not set a ceiling on the retroactive effect state courts may give the Court's decisions (though it has left open whether Teague interpreted the Due Process Clause, sub silentio, to require a retroactivity floor), there's an obvious doubt as to whether the Court has jurisdiction over Louisiana's application of Teague at all. The Court, recognizing that doubt, ordered the parties, and appointed an amicus, to brief the issue. The parties and the SG's office, which filed an amicus brief, support jurisdiction; the amicus was appointed to oppose it.
The Court only has jurisdiction, as far as I, the parties, the Court-appointed amicus, the SG's office, and commentators can tell, if one of two things are true: (1) the part of Teague that the Louisiana Supreme Court may have gotten wrong, namely Teague's exceptions to its general rule of non-retroactivity, is constitutionally mandated by the Due Process Clause and not just an interpretation of a federal habeas statute, or (2), simply by choosing to adopt a purely federal-habeas retroactivity standard for purposes of deciding state-law retroactivity, the Louisiana Supreme Court has injected a federal question into what would otherwise be a purely state-law case. Finally, by way of prologue, Michigan v. Long, the Court's seminal case on how to decide whether a state court decision rests on an adequate and independent state ground, is a red herring here, as the SG all but concedes, because Michigan only comes into play where a state-court case actually involved some federal claim in addition to a state-law claim, or at the very least some possibility that the state court believed federal law required the state court to, in interpreting its state constitution, reach a certain federal floor.
I don't have any interest in whether Teague's exceptions are constitutionally mandated in whole or part; there's a respectable argument that they are and respectable arguments that they're not. What I do find interesting, and disturbing, is the argument, made by the parties, the SG, several amici, and the commentators linked to above, that even if Teague isn't constitutionally mandated, whether Louisiana's voluntary application of it for state-law retroactivity purposes was correct is a federal question which the Court has jurisdiction to review. I'm going to offer a fairly detailed flyspecking of the arguments for this remarkable proposition, but first, consider these hypotheticals on which the Court would have jurisdiction if the parties, SG, et al. are right.
Suppose a state amends its state-constitutional analogue to the Equal Protection Clause to protect transgendered persons on a par with racial minorities. The state supreme court, interpreting this amendment, then holds that in reviewing any discrimination against transgendered persons, it will apply the Supreme Court's strict scrutiny test that the Court uses to review discrimination against certain protected classes under the Equal Protection Clause. It then produces a learned opinion citing every major case in which the Court has applied strict scrutiny since Korematsu, and deploying these precedents to shape and explain its understanding of what compelling interests are and what narrow tailoring requires.
I wouldn't have thought, until I read the Montgomery briefs, that anyone would say the state's application of strict scrutiny, federal though its origins may be, would present a federal question that the Court could decide. Yet I'm reasonably certain that if the Court adopts the standards set forth in those briefs, it would have jurisdiction in my hypothetical. For example, the SG says that "the Court has the power to review a state court's interpretation of federal law, even when the state court did not have to apply that law in administering state causes of action or in interpreting state statutes." Louisiana says the Court has jurisdiction because its state supreme court chose to rely "solely on the Teague framework in determining that Miller is non-retroactive [as a matter of state law]." Just so in my hypothetical; the hypothetical state chose to rely solely on the federal strict-scrutiny framework, citing lots of federal cases, in determining whether an instance of transgender discrimination violated the state constitution. And, satisfying the SG's test, the state court interpreted federal law, though the state court didn't have to apply it in the first place.
Some people might argue that Montgomery is different, perhaps because there isn't really any federal law that, as of yet, says discrimination against transgendered persons is subject to strict scrutiny, while there is federal law that applies Teague to determine Miller's retroactive effect. I don't, however, understand that distinction because - by hypothesis - there isn't federal law that applies Teague to determine Miller's retroactive effect in state-court collateral proceedings. There's just federal law that applies Teague for a different, though very similar, purpose (retroactivity in federal habeas), just as there's federal law that applies strict scrutiny for different, though fairly similar, purposes than deciding whether laws that discriminate against transgendered persons violate state constitutions. Others, specifically the SG, might say that Montgomery is different because there is no "independent state element" in Louisiana's retroactivity analysis (a limitation to his proposed jurisdictional rule the SG offers) - there's just Teague. On the other hand, in my hypothetical there is an independent state element in the state court's analysis, namely the provision of the state constitution that prohibits discrimination against transgendered persons in the first place. I don't see why this should matter, and nor does the SG, really, as every case he cites in support of jurisdiction here is chock-full of independent state elements, as we'll see below. But even if the distinction had any value, I don't understand it on these facts, because in Montgomery, there is an independent state element - the state's choice to give retroactive effect to certain decisions on collateral review, and its further choice to use Teague as its method of selecting which decisions those are.
Though I think any distinctions between Montgomery and my hypothetical are minor differences of degree, another hypothetical should collapse even those distinctions. The Supreme Court occasionally announces rules pursuant to its supervisory power over the lower federal courts; for example, the Court held in Young v. U.S. ex rel. Vuitton et Fils SA, purely as a matter of supervisory power, that the lower federal courts must refer criminal contempt matters to the local U.S. Attorney and appoint an independent prosecutor if the U.S. Attorney doesn't accept the referrals. A state supreme court could hold that its inferior courts must do, in criminal contempt matters, just what the Supreme Court held its inferior courts must do. It could then reach some controversial, cert-worthy result about the meaning of Young's independent-prosecutor requirement. Would the Court have jurisdiction there? There, the only "independent state element" is the decision to apply Young, as in Montgomery the only independent state element is the decision to apply Teague, and the federal law being applied by the state to its contempt prosecutions is federal law that applies in a precisely analogous federal context, just as federal law applies Teague in a precisely analogous context to that in which Louisiana applies Teague. Yet how could the Court possibly have jurisdiction to supervise a state supreme court's purely state-law supervision of its inferior courts, however much that supervision might borrow from federal law?
The parties and the SG argue, for the most part, that the Court has held before that it had jurisdiction to review a state court's interpretation of federal law that the state court or legislature chose to incorporate for state-law purposes, and thus must hold it again. That's both an accurate and completely misleading description of the Court's precedents. The simple distinction between Montgomery or my hypotheticals and the handful of precedents the supporters of jurisdiction in Montgomery cite is this: in that handful of precedents, the federal-law element a state voluntarily chose to incorporate into its state law was a real, not hypothetical, federal-law element. Federal law actually said something about what was happening in those state-court cases. It did not say something about what was happening only on the counterfactual hypothesis that those cases were federal cases, as Teague only says something as a matter of federal law about the retroactive effect of Miller in Louisiana's collateral proceedings on the counterfactual what-if scenario that Montgomery was a federal habeas case and not a Louisiana collateral proceeding. (Assuming, anyway, that Teague is not a constitutional rule, which one has to assume for the component of the jurisdictional question I'm discussing to matter.)
Consider the SG's examples. First, the SG points to Standard Oil Co. v. Johnson, a case in which the Court decided whether or not a military post exchange was an arm of the federal government. In Standard Oil, California had a gasoline tax that exempted sales to the government of the United States. California, we'll assume, wasn't constitutionally required to make that exemption; it just chose to. Once it did, however, it embedded a federal-law question into its gas tax as to whether certain entities were part of the United States government. Note that that question wasn't in the nature of a hypothetical, e.g., "if this were a case about applying a federal gas tax, what would the federal law be about the status of post exchanges?" The post exchanges California taxed either were or weren't part of the federal government as a matter of federal law, and the California Supreme Court could (and did) get controlling federal law on that question wrong.
Next the SG relies on Merrell Dow, where the Court held that the lower federal courts lacked statutory federal-question jurisdiction over state-law negligence per se claims founded on federal misbranding law, but said in dicta that the Court had jurisdiction under its broader jurisdictional grant to decide the federal issues in such an action. Though dicta, that's clearly correct. The Merrell Dow plaintiff said Merrell Dow was negligent per se under state law because Merrell Dow's labeling violated the Food, Drug and Cosmetic Act, which Ohio negligence law picks up in negligence per se actions. Ohio didn't have to care about FDCA violations. Nevertheless, the federal question Ohio chose to incorporate in its negligence law was a genuine, non-hypothetical federal question that Ohio courts could get wrong or right as a matter of federal law: did Merrell Dow violate the FDCA? The question wasn't, "hypothetically, if the FDCA applied in a context to which it does not apply, would there be a violation?"
Next, in Three Affiliated Tribes, the North Dakota Supreme Court appeared to hold, as a matter of state law, that Indian tribes couldn't sue non-Indians in certain circumstances in state court. That holding would create obvious constitutional questions, which the Court avoided deciding by reading the North Dakota decision to have construed a North Dakota state jurisdictional statute against the background of an incorrect understanding of federal law, on which federal law barred jurisdiction over the tribes' claims. The Court held it had jurisdiction to correct that misunderstanding and remanded the case for the North Dakota Supreme Court to construe its state statute afresh. Again, Three Affiliated Tribes involved a real federal question, not a what-if-federal-law-applied-here question: did, in fact, federal law bar jurisdiction over the tribes' claims? North Dakota was wrong about what federal law dictated, and the Court held it had jurisdiction to correct their error.
Finally, the SG relies on Ohio v. Reiner, a per curiam decision in which the Court reversed the Ohio Supreme Court's holding that a witness who denies culpability lacks a Fifth Amendment privilege against self-incrimination. This federal-law holding was embedded in a decision that a witness was improperly granted transactional immunity under an Ohio statute, which provides that in certain circumstances, an Ohio trial court must give transactional immunity to a witness, and compel him to testify, if he validly invokes his privilege against incrimination. The Ohio Supreme Court held Reiner had no privilege and therefore shouldn't have gotten transactional immunity. Ohio didn't have to write a transactional-immunity statute like the one it did, but once it did, it embedded a real federal question into its transactional-immunity state law: do witnesses have valid claims of privilege against self-incrimination under the Fifth Amendment? Reiner actually had one under the Fifth Amendment, the Ohio Supreme Court held she actually did not, and the Court corrected this error of actually applicable federal law and remanded the case for the Ohio Supreme Court to decide the remaining state-law issues absent the federal-law error.*
None of these cases are anything like Montgomery. In Montgomery (and in my hypotheticals), there is no real federal-law question, and no federal law for the Louisiana Supreme Court to be wrong about. Louisiana's test for retroactivity in collateral proceedings, as a matter of state law, has one element: Teague. Teague, however says nothing (by hypothesis) about the retroactive effect of Miller in Louisiana's collateral proceedings; Louisiana merely uses Teague by analogy to decide what it wants to say about the retroactive effect of Miller in its collateral proceedings. Likewise, in my hypotheticals, federal law doesn't really say anything about appointing prosecutors in state-court criminal-contempt proceedings, and federal law doesn't speak to whether transgender discrimination violates a state constitution.
Because federal law doesn't really speak to retroactivity in Louisiana collateral proceedings (by hypothesis), nor to any element or aspect of Louisiana's retroactivity test, Louisiana can't be wrong about what Teague says about Miller's Louisiana-law retroactivity, like Ohio could be (and was) wrong about whether Reiner had a Fifth Amendment privilege, like North Dakota could be (and was) wrong about whether federal law barred jurisdiction over tribal claims, like Ohio could be wrong about what the FDCA required Merrell Dow to put on a label, or like California could be (and was) wrong about whether federal law made military post exchanges parts of the federal government. Louisiana can only be wrong about what Teague says about Miller's retroactive effect in Louisiana on the imaginary scenario that Montgomery is a federal habeas petitioner and Montgomery is a federal case - or, the alternative counterfactual scenario that Teague governs Louisiana collateral proceedings when (by hypothesis) it doesn't.
A wildly misguided analogy from an amicus brief in support of jurisdiction illustrates the distinction I'm drawing. This amicus writes that teenagers aren't required to get a driver's license, but once they do they are required to follow state laws that would not otherwise apply to them. Quite so, of course, but the amicus then says that "the same is true with respect to state courts employing the Teague test"; they don't have to opt in to Teague, but once they do they have to "apply [it] correctly." Not so. A teenager who chooses to get a driver's license subjects herself to an actually applicable legal regime. On the other hand, a teenager who chooses to live by the Code of Judicial Ethics is not bound, at least by the Code of Judicial Ethics, to accurately follow the Code. The teenager may be bound by her own dictate, but the question of whether the teenager is accurately following the Code is a question of teenager-dictate rules, not a question of judicial ethics rules. One could sensibly reprimand such a teenager for "not living up to your moral code," by doing something which would be a violation of the Code were she a federal judge; one could not sensibly charge her with a violation of the Code. If a court existed with jurisdiction to decide issues of judicial ethics, to just the same expansive degree the Supreme Court has to decide issues of federal law that arise as elements of or defenses to non-federal claims, that court would obviously lack jurisdiction over the teenager. The same is true with state courts that choose to apply Teague. When they get Teague "wrong," they're getting state law wrong; they're not getting federal law wrong, because federal law is, by hypothesis, silent on the subject of the state courts' decisions.
As for the theory behind this frankly zany assertion of jurisdiction, it seems to be simply a confused notion that if state courts choose to borrow federal law for state-law purposes, they need to get federal law right and the Court needs to be there to correct them if they don't. The trouble with that, again, is that no one's getting federal law wrong in these scenarios. They're getting fantasy-land federal law wrong, where fantasy-land federal law is defined as an imaginary version of federal law where federal law says things and applies to things it doesn't say and doesn't apply to -- just as the teenager who can't understand the Code of Judicial Ethics is getting fantasy-land judicial ethics rules wrong. Why is it important, as a matter of federal law, for states to get fantasy-land federal law right? It's not.
* One other case that Louisiana cites, Oregon v. Guzek, is an even weaker case in this mold (a state statute permitted defendants to introduce evidence at death sentencing hearings that, and only that, the Federal Constitution requires defendants be allowed to introduce at death sentencing hearings), while the other cases parties cite are classic Michigan v. Long cases with state-law and federal-law claims where the Court held the state courts' judgments rested on the federal-law claims.
The Court only has jurisdiction, as far as I, the parties, the Court-appointed amicus, the SG's office, and commentators can tell, if one of two things are true: (1) the part of Teague that the Louisiana Supreme Court may have gotten wrong, namely Teague's exceptions to its general rule of non-retroactivity, is constitutionally mandated by the Due Process Clause and not just an interpretation of a federal habeas statute, or (2), simply by choosing to adopt a purely federal-habeas retroactivity standard for purposes of deciding state-law retroactivity, the Louisiana Supreme Court has injected a federal question into what would otherwise be a purely state-law case. Finally, by way of prologue, Michigan v. Long, the Court's seminal case on how to decide whether a state court decision rests on an adequate and independent state ground, is a red herring here, as the SG all but concedes, because Michigan only comes into play where a state-court case actually involved some federal claim in addition to a state-law claim, or at the very least some possibility that the state court believed federal law required the state court to, in interpreting its state constitution, reach a certain federal floor.
I don't have any interest in whether Teague's exceptions are constitutionally mandated in whole or part; there's a respectable argument that they are and respectable arguments that they're not. What I do find interesting, and disturbing, is the argument, made by the parties, the SG, several amici, and the commentators linked to above, that even if Teague isn't constitutionally mandated, whether Louisiana's voluntary application of it for state-law retroactivity purposes was correct is a federal question which the Court has jurisdiction to review. I'm going to offer a fairly detailed flyspecking of the arguments for this remarkable proposition, but first, consider these hypotheticals on which the Court would have jurisdiction if the parties, SG, et al. are right.
Suppose a state amends its state-constitutional analogue to the Equal Protection Clause to protect transgendered persons on a par with racial minorities. The state supreme court, interpreting this amendment, then holds that in reviewing any discrimination against transgendered persons, it will apply the Supreme Court's strict scrutiny test that the Court uses to review discrimination against certain protected classes under the Equal Protection Clause. It then produces a learned opinion citing every major case in which the Court has applied strict scrutiny since Korematsu, and deploying these precedents to shape and explain its understanding of what compelling interests are and what narrow tailoring requires.
I wouldn't have thought, until I read the Montgomery briefs, that anyone would say the state's application of strict scrutiny, federal though its origins may be, would present a federal question that the Court could decide. Yet I'm reasonably certain that if the Court adopts the standards set forth in those briefs, it would have jurisdiction in my hypothetical. For example, the SG says that "the Court has the power to review a state court's interpretation of federal law, even when the state court did not have to apply that law in administering state causes of action or in interpreting state statutes." Louisiana says the Court has jurisdiction because its state supreme court chose to rely "solely on the Teague framework in determining that Miller is non-retroactive [as a matter of state law]." Just so in my hypothetical; the hypothetical state chose to rely solely on the federal strict-scrutiny framework, citing lots of federal cases, in determining whether an instance of transgender discrimination violated the state constitution. And, satisfying the SG's test, the state court interpreted federal law, though the state court didn't have to apply it in the first place.
Some people might argue that Montgomery is different, perhaps because there isn't really any federal law that, as of yet, says discrimination against transgendered persons is subject to strict scrutiny, while there is federal law that applies Teague to determine Miller's retroactive effect. I don't, however, understand that distinction because - by hypothesis - there isn't federal law that applies Teague to determine Miller's retroactive effect in state-court collateral proceedings. There's just federal law that applies Teague for a different, though very similar, purpose (retroactivity in federal habeas), just as there's federal law that applies strict scrutiny for different, though fairly similar, purposes than deciding whether laws that discriminate against transgendered persons violate state constitutions. Others, specifically the SG, might say that Montgomery is different because there is no "independent state element" in Louisiana's retroactivity analysis (a limitation to his proposed jurisdictional rule the SG offers) - there's just Teague. On the other hand, in my hypothetical there is an independent state element in the state court's analysis, namely the provision of the state constitution that prohibits discrimination against transgendered persons in the first place. I don't see why this should matter, and nor does the SG, really, as every case he cites in support of jurisdiction here is chock-full of independent state elements, as we'll see below. But even if the distinction had any value, I don't understand it on these facts, because in Montgomery, there is an independent state element - the state's choice to give retroactive effect to certain decisions on collateral review, and its further choice to use Teague as its method of selecting which decisions those are.
Though I think any distinctions between Montgomery and my hypothetical are minor differences of degree, another hypothetical should collapse even those distinctions. The Supreme Court occasionally announces rules pursuant to its supervisory power over the lower federal courts; for example, the Court held in Young v. U.S. ex rel. Vuitton et Fils SA, purely as a matter of supervisory power, that the lower federal courts must refer criminal contempt matters to the local U.S. Attorney and appoint an independent prosecutor if the U.S. Attorney doesn't accept the referrals. A state supreme court could hold that its inferior courts must do, in criminal contempt matters, just what the Supreme Court held its inferior courts must do. It could then reach some controversial, cert-worthy result about the meaning of Young's independent-prosecutor requirement. Would the Court have jurisdiction there? There, the only "independent state element" is the decision to apply Young, as in Montgomery the only independent state element is the decision to apply Teague, and the federal law being applied by the state to its contempt prosecutions is federal law that applies in a precisely analogous federal context, just as federal law applies Teague in a precisely analogous context to that in which Louisiana applies Teague. Yet how could the Court possibly have jurisdiction to supervise a state supreme court's purely state-law supervision of its inferior courts, however much that supervision might borrow from federal law?
The parties and the SG argue, for the most part, that the Court has held before that it had jurisdiction to review a state court's interpretation of federal law that the state court or legislature chose to incorporate for state-law purposes, and thus must hold it again. That's both an accurate and completely misleading description of the Court's precedents. The simple distinction between Montgomery or my hypotheticals and the handful of precedents the supporters of jurisdiction in Montgomery cite is this: in that handful of precedents, the federal-law element a state voluntarily chose to incorporate into its state law was a real, not hypothetical, federal-law element. Federal law actually said something about what was happening in those state-court cases. It did not say something about what was happening only on the counterfactual hypothesis that those cases were federal cases, as Teague only says something as a matter of federal law about the retroactive effect of Miller in Louisiana's collateral proceedings on the counterfactual what-if scenario that Montgomery was a federal habeas case and not a Louisiana collateral proceeding. (Assuming, anyway, that Teague is not a constitutional rule, which one has to assume for the component of the jurisdictional question I'm discussing to matter.)
Consider the SG's examples. First, the SG points to Standard Oil Co. v. Johnson, a case in which the Court decided whether or not a military post exchange was an arm of the federal government. In Standard Oil, California had a gasoline tax that exempted sales to the government of the United States. California, we'll assume, wasn't constitutionally required to make that exemption; it just chose to. Once it did, however, it embedded a federal-law question into its gas tax as to whether certain entities were part of the United States government. Note that that question wasn't in the nature of a hypothetical, e.g., "if this were a case about applying a federal gas tax, what would the federal law be about the status of post exchanges?" The post exchanges California taxed either were or weren't part of the federal government as a matter of federal law, and the California Supreme Court could (and did) get controlling federal law on that question wrong.
Next the SG relies on Merrell Dow, where the Court held that the lower federal courts lacked statutory federal-question jurisdiction over state-law negligence per se claims founded on federal misbranding law, but said in dicta that the Court had jurisdiction under its broader jurisdictional grant to decide the federal issues in such an action. Though dicta, that's clearly correct. The Merrell Dow plaintiff said Merrell Dow was negligent per se under state law because Merrell Dow's labeling violated the Food, Drug and Cosmetic Act, which Ohio negligence law picks up in negligence per se actions. Ohio didn't have to care about FDCA violations. Nevertheless, the federal question Ohio chose to incorporate in its negligence law was a genuine, non-hypothetical federal question that Ohio courts could get wrong or right as a matter of federal law: did Merrell Dow violate the FDCA? The question wasn't, "hypothetically, if the FDCA applied in a context to which it does not apply, would there be a violation?"
Next, in Three Affiliated Tribes, the North Dakota Supreme Court appeared to hold, as a matter of state law, that Indian tribes couldn't sue non-Indians in certain circumstances in state court. That holding would create obvious constitutional questions, which the Court avoided deciding by reading the North Dakota decision to have construed a North Dakota state jurisdictional statute against the background of an incorrect understanding of federal law, on which federal law barred jurisdiction over the tribes' claims. The Court held it had jurisdiction to correct that misunderstanding and remanded the case for the North Dakota Supreme Court to construe its state statute afresh. Again, Three Affiliated Tribes involved a real federal question, not a what-if-federal-law-applied-here question: did, in fact, federal law bar jurisdiction over the tribes' claims? North Dakota was wrong about what federal law dictated, and the Court held it had jurisdiction to correct their error.
Finally, the SG relies on Ohio v. Reiner, a per curiam decision in which the Court reversed the Ohio Supreme Court's holding that a witness who denies culpability lacks a Fifth Amendment privilege against self-incrimination. This federal-law holding was embedded in a decision that a witness was improperly granted transactional immunity under an Ohio statute, which provides that in certain circumstances, an Ohio trial court must give transactional immunity to a witness, and compel him to testify, if he validly invokes his privilege against incrimination. The Ohio Supreme Court held Reiner had no privilege and therefore shouldn't have gotten transactional immunity. Ohio didn't have to write a transactional-immunity statute like the one it did, but once it did, it embedded a real federal question into its transactional-immunity state law: do witnesses have valid claims of privilege against self-incrimination under the Fifth Amendment? Reiner actually had one under the Fifth Amendment, the Ohio Supreme Court held she actually did not, and the Court corrected this error of actually applicable federal law and remanded the case for the Ohio Supreme Court to decide the remaining state-law issues absent the federal-law error.*
None of these cases are anything like Montgomery. In Montgomery (and in my hypotheticals), there is no real federal-law question, and no federal law for the Louisiana Supreme Court to be wrong about. Louisiana's test for retroactivity in collateral proceedings, as a matter of state law, has one element: Teague. Teague, however says nothing (by hypothesis) about the retroactive effect of Miller in Louisiana's collateral proceedings; Louisiana merely uses Teague by analogy to decide what it wants to say about the retroactive effect of Miller in its collateral proceedings. Likewise, in my hypotheticals, federal law doesn't really say anything about appointing prosecutors in state-court criminal-contempt proceedings, and federal law doesn't speak to whether transgender discrimination violates a state constitution.
Because federal law doesn't really speak to retroactivity in Louisiana collateral proceedings (by hypothesis), nor to any element or aspect of Louisiana's retroactivity test, Louisiana can't be wrong about what Teague says about Miller's Louisiana-law retroactivity, like Ohio could be (and was) wrong about whether Reiner had a Fifth Amendment privilege, like North Dakota could be (and was) wrong about whether federal law barred jurisdiction over tribal claims, like Ohio could be wrong about what the FDCA required Merrell Dow to put on a label, or like California could be (and was) wrong about whether federal law made military post exchanges parts of the federal government. Louisiana can only be wrong about what Teague says about Miller's retroactive effect in Louisiana on the imaginary scenario that Montgomery is a federal habeas petitioner and Montgomery is a federal case - or, the alternative counterfactual scenario that Teague governs Louisiana collateral proceedings when (by hypothesis) it doesn't.
A wildly misguided analogy from an amicus brief in support of jurisdiction illustrates the distinction I'm drawing. This amicus writes that teenagers aren't required to get a driver's license, but once they do they are required to follow state laws that would not otherwise apply to them. Quite so, of course, but the amicus then says that "the same is true with respect to state courts employing the Teague test"; they don't have to opt in to Teague, but once they do they have to "apply [it] correctly." Not so. A teenager who chooses to get a driver's license subjects herself to an actually applicable legal regime. On the other hand, a teenager who chooses to live by the Code of Judicial Ethics is not bound, at least by the Code of Judicial Ethics, to accurately follow the Code. The teenager may be bound by her own dictate, but the question of whether the teenager is accurately following the Code is a question of teenager-dictate rules, not a question of judicial ethics rules. One could sensibly reprimand such a teenager for "not living up to your moral code," by doing something which would be a violation of the Code were she a federal judge; one could not sensibly charge her with a violation of the Code. If a court existed with jurisdiction to decide issues of judicial ethics, to just the same expansive degree the Supreme Court has to decide issues of federal law that arise as elements of or defenses to non-federal claims, that court would obviously lack jurisdiction over the teenager. The same is true with state courts that choose to apply Teague. When they get Teague "wrong," they're getting state law wrong; they're not getting federal law wrong, because federal law is, by hypothesis, silent on the subject of the state courts' decisions.
As for the theory behind this frankly zany assertion of jurisdiction, it seems to be simply a confused notion that if state courts choose to borrow federal law for state-law purposes, they need to get federal law right and the Court needs to be there to correct them if they don't. The trouble with that, again, is that no one's getting federal law wrong in these scenarios. They're getting fantasy-land federal law wrong, where fantasy-land federal law is defined as an imaginary version of federal law where federal law says things and applies to things it doesn't say and doesn't apply to -- just as the teenager who can't understand the Code of Judicial Ethics is getting fantasy-land judicial ethics rules wrong. Why is it important, as a matter of federal law, for states to get fantasy-land federal law right? It's not.
* One other case that Louisiana cites, Oregon v. Guzek, is an even weaker case in this mold (a state statute permitted defendants to introduce evidence at death sentencing hearings that, and only that, the Federal Constitution requires defendants be allowed to introduce at death sentencing hearings), while the other cases parties cite are classic Michigan v. Long cases with state-law and federal-law claims where the Court held the state courts' judgments rested on the federal-law claims.
Wednesday, October 7, 2015
Highlights from Today's Death Penalty Arguments
Today's death penalty arguments were less fractious than the infamously heated argument in Glossip v. Gross, but they still had their moments. Here we have Justice Alito predicting whether the Kansas Supreme Court would be willing, on remand, to locate a right to certain jury instructions on mitigating circumstances in Kansas law, rather than the Eighth Amendment:
Immediately after that exchange, Justice Scalia pondered whether the Kansas Supreme Court could win retention elections if they reversed death sentences on the basis of Kansas law, or whether a Kansan electorate that favors the death penalty, "unlike our Justice Breyer," would throw the Kansan justices out of office:
JUSTICE ALITO: Isn't it true, General Schmidt, that it makes a big difference whether this is done under the Federal Constitution or under Kansas law? And presumably the Kansas Supreme Court understood that it had the capability of basing its decision on Kansas law. But if it did that, it would have to take responsibility for the decisions in these cases, which involve some of the most horrendous murders that I have seen in my 10 years here. And we see practically every death penalty case that comes up anywhere in the country. These have to rank as among the worst. So it did not take responsibility for that. It said it is the Eighth Amendment, and we have to apply the Federal Constitution. Now, it may be they will say, well, we are going to say that Kansas law requires this but then it is their responsibility, isn't that true?
MR. SCHMIDT: Justice Alito, I, of course, won't speculate on what the Kansas court was -- might do.
JUSTICE ALITO: Well, I wasn't speculating on why they did what they did, but the consequences of basing it on the Federal Constitution - - one of the consequences of basing it on the Federal Constitution is that they do not have to take responsibility for it.
MR. SCHMIDT: I have no ability to dispute that hot topic.
JUSTICE SCALIA: Do -- do you have retention elections in Kansas?And here's Justice Sotomayor complaining about AEDPA and asymmetries between it and state-on-top direct review:
MR. SCHMIDT: We do, Your Honor.
JUSTICE SCALIA: Yes. And the fact -- how how many people are there on death row in Kansas?
MR. SCHMIDT: There are currently nine under sentence, with a tenth --
JUSTICE SCALIA: Which could suggest that --that Kansans, unlike our Justice Breyer, do not think the death penalty is unconstitutional and indeed very much favor it, which might suggest that a retention election that goes before such people would not come out favorably for those justices who create Kansas law that -- that would reverse these convictions. I am just speculating, of course.
JUSTICE SOTOMAYOR: What a wonderful system we've created. We give -- even when a State court is wrong in convicting somebody, so long as they are reasonably wrong, we uphold them. And when they are wrong on a legal conclusion applying our test, we jump in and reverse them, right?
Tuesday, October 6, 2015
Ocasio v. United States - Argument Recap
Ocasio v. United States, which was argued today,* presents a real puzzler of conspiracy law, though after today's argument I'm not sure the Court sees it that way. Stated at the highest level of abstraction, the question in Ocasio is this. If Statute Y makes it a crime for a person to do X to another person, and Person 1 and Person 2 agree that Person 2 is to do X to Person 1, and one or both persons commit an overt act in furtherance of their agreement, have Persons 1 and 2 conspired to violate Statute Y? They have clearly agreed that Person 2 will violate Statute Y, but has Person 1 agreed with Person 2 to violate Statute Y? Or has he only agreed to be a victim of Person 2's violation of Statute Y? The Court seemed today to think the answer is the former.
Turning to the specific facts and law of this case, the Hobbs Act makes it a crime to "affect[] commerce . . . by . . . extortion," and defines "extortion" as "the obtaining of property of another, with his consent . . . under color of official right." The Court has interpreted that language to include public officials accepting bribes. In Ocasio, the Court granted certiorari to consider when, if ever, an agreement between a bribe-payor and a bribed public official to give and take bribes is a conspiracy to commit Hobbs Act extortion. Ocasio, a police officer who took bribes from owners of a body shop in return for steering wrecked cars their way, argues the answer to that question is never, because the bribe-payors have not conspired to obtain property from another; they've conspired to transfer their own property. As the government sees it, Ocasio and the body shop owners agreed and intended that Ocasio would obtain property from persons other than himself (the body shop owners), and thus, conspired to commit Hobbs Act extortion.
Part of what makes this case difficult is that there isn't really any helpful statutory text to go on. Ocasio claims there is; in his briefs and in today's argument, he tried very hard to make this case about the "obtaining of property of another" language in the Hobbs Act. That didn't really wash at oral argument because it's besides the real point of the case. There's no question that Ocasio, and his putative co-conspirators, intended a violation of the Hobbs Act to occur - that is, that they intended that Ocasio obtain property from persons other than himself under color of official right. The question is whether the intended violation must be a violation from the perspective of each of the co-conspirators - that is, whether the body shop owners had to intend that money be obtained from persons other than themselves - or just from the perspective of Ocasio, in which case the conspirators need only have intended that money be obtained from persons other than Ocasio. That's a question of conspiracy law, and on this point, the conspiracy statute, and conspiracy doctrine, are opaque.
The general conspiracy statute under which Ocasio was convicted makes it a crime for two or more persons to conspire to commit a federal crime, so long as one of the conspirators commits an act in furtherance of the conspiracy. That's all it says. On the one hand, the Court has held this means that not every conspirator need intend to personally commit every element of the substantive crime, or even be capable of doing so. On the other hand, each conspirator, at least at common law, must specifically intend for the commission of each element of the substantive crime.
What remains surprisingly unsettled is whether conspirators need only intend for a crime to be committed from the perspective of one of the co-conspirators, or more broadly, from the perspective of the state, or whether they must intend each element from their perspective for there to be a conspiracy. For example, murder is the wrongful killing of another; suicide is the killing of oneself. If someone hires a hitman to kill her, has she conspired with the hitman to commit a murder? She's certainly conspired for a murder to be committed from the perspective of the state (in whose eyes the hitman is supposed to murder another) or from the perspective of the hitman. She intends for a murder to happen and for the hitman to commit one. But she hasn't herself intended to kill someone other than herself; from her perspective, she intends a suicide, not a murder of another. It's no real answer to say, as the government did in its briefs and at argument, that since each conspirator need not be capable of performing each element of a crime, a willing victim of a crime who logically cannot commit a crime with relation to themselves is therefore a conspirator. A willing victim of a crime that requires some act towards another is not only unable to commit that crime with relation to themselves; they do not even intend for some criminal act to happen to someone other than themselves. I can see arguments here either way - on the one hand, it seems very strange to punish someone who contracts to kill herself as if she contracted to kill someone else, on the other, it may not be so strange given that she's intended for the commission of a murder - but it's certainly a very hard problem.
The Justices, however, who engaged with this problem didn't seem to find it very hard. Not a single Justice vocally bought into Ocasio's central point - that there was no conspiracy to obtain property from another because the persons from whom property was obtained were conspirators - and several Justices clearly rejected it. Justice Kagan repeatedly insisted that Ocasio and the body-shop owners had conspired that Ocasio would obtain money from another, and that "there's no reason under standard conspiracy law that we would use the perspective of the agreer [the body shop owners] rather than the perspective of the perpetrator [Ocasio]." Justice Sotomayor echoed these points. Justice Alito suggested that Ocasio's case was no different from the Court's old Mann Act conspiracy cases, in which women were convicted of conspiring with others to "transport any woman," i.e., themselves, across state lines for purposes of prostitution. Ethan Davis, counsel for Ocasio, tried to argue that "any woman" was different from "another," which seems quite right ("any woman" does not necessarily exclude self-transporters, while "obtaining of property of another" does exclude obtaining money from oneself), but that didn't convince Justice Alito, who replied that "any woman" subsumed "another." Justice Breyer, for his part, said that once the Court took the step of interpreting extortion to include taking bribes, it followed that conspiracy to extort would include schemes to give and receive bribes.
This isn't to say that Ocasio entirely lacked for support today. Justice Scalia, who dissented in the Court's decision holding that Hobbs Act extortion included accepting bribes, continues to believe that that decision is wrong and repeatedly suggested that the Court shouldn't extend it any further. Justice Kennedy expressed some concerns about the federalization of state bribery law, and the possibility that on the government's view, every willing giving and taking of a bribe would become a conspiracy to extort. Allon Kedem, assistant to the Solicitor General, attempted to allay these concerns by proposing an "active participation" requirement, under which more than merely agreeing to give a bribe would be needed to make out a conspiracy, but several Justices (Kagan, Scalia) questioned how such a requirement could be squared with traditional conspiracy law. Kedem claimed, in response, that something like it was in the old Mann Act conspiracy cases. Justice Breyer, for his part, seemed to accept that something like an active-participation test was inevitable once the Court took the step of conflating extortion with bribe-taking. Chief Justice Roberts was concerned that active participation was never charged to the jury, and was very interested in the government's claim that, even if the jury instructions on which Ocasio could be convicted for conspiring with the body shop owners were improper, there was sufficient evidence to convict Ocasio because he conspired with other police officers to take bribes. That interest might suggest that Roberts is skeptical of the government's defense of the jury instructions, as might several questions he put to Davis, which looked to me like attempts to fill in gaps in Ocasio's argument.
Prediction: Ocasio may have anywhere from one (Scalia) to four (Scalia, Roberts, Kennedy, Thomas) votes, and probably has at least two or three, but I struggle to see where he gets his majority. I do think the Court will be forced to accept some version of the government's active-participation requirement, lest it turn every giving and taking of a bribe into a conspiracy to extort.
* I should note that I'm recapping Ocasio from a transcript which is unusually rocky - much more so than first-day transcripts of oral arguments at the Court have been in the past. Some of the more fun and/or notable mistakes in this transcript: "old English . . . cases" got rendered as "Olde English . . . cases" (Olde English is a brand of cheap malt liquor), while Ocasio's counsel is transcribed at one point as saying "I think going back to how that kind of conversation would happen in ordinary English is a way to severability 80's not plausible to read the statute like that." One imagines some sort of VH1 show on 1980s severability law.
Turning to the specific facts and law of this case, the Hobbs Act makes it a crime to "affect[] commerce . . . by . . . extortion," and defines "extortion" as "the obtaining of property of another, with his consent . . . under color of official right." The Court has interpreted that language to include public officials accepting bribes. In Ocasio, the Court granted certiorari to consider when, if ever, an agreement between a bribe-payor and a bribed public official to give and take bribes is a conspiracy to commit Hobbs Act extortion. Ocasio, a police officer who took bribes from owners of a body shop in return for steering wrecked cars their way, argues the answer to that question is never, because the bribe-payors have not conspired to obtain property from another; they've conspired to transfer their own property. As the government sees it, Ocasio and the body shop owners agreed and intended that Ocasio would obtain property from persons other than himself (the body shop owners), and thus, conspired to commit Hobbs Act extortion.
Part of what makes this case difficult is that there isn't really any helpful statutory text to go on. Ocasio claims there is; in his briefs and in today's argument, he tried very hard to make this case about the "obtaining of property of another" language in the Hobbs Act. That didn't really wash at oral argument because it's besides the real point of the case. There's no question that Ocasio, and his putative co-conspirators, intended a violation of the Hobbs Act to occur - that is, that they intended that Ocasio obtain property from persons other than himself under color of official right. The question is whether the intended violation must be a violation from the perspective of each of the co-conspirators - that is, whether the body shop owners had to intend that money be obtained from persons other than themselves - or just from the perspective of Ocasio, in which case the conspirators need only have intended that money be obtained from persons other than Ocasio. That's a question of conspiracy law, and on this point, the conspiracy statute, and conspiracy doctrine, are opaque.
The general conspiracy statute under which Ocasio was convicted makes it a crime for two or more persons to conspire to commit a federal crime, so long as one of the conspirators commits an act in furtherance of the conspiracy. That's all it says. On the one hand, the Court has held this means that not every conspirator need intend to personally commit every element of the substantive crime, or even be capable of doing so. On the other hand, each conspirator, at least at common law, must specifically intend for the commission of each element of the substantive crime.
What remains surprisingly unsettled is whether conspirators need only intend for a crime to be committed from the perspective of one of the co-conspirators, or more broadly, from the perspective of the state, or whether they must intend each element from their perspective for there to be a conspiracy. For example, murder is the wrongful killing of another; suicide is the killing of oneself. If someone hires a hitman to kill her, has she conspired with the hitman to commit a murder? She's certainly conspired for a murder to be committed from the perspective of the state (in whose eyes the hitman is supposed to murder another) or from the perspective of the hitman. She intends for a murder to happen and for the hitman to commit one. But she hasn't herself intended to kill someone other than herself; from her perspective, she intends a suicide, not a murder of another. It's no real answer to say, as the government did in its briefs and at argument, that since each conspirator need not be capable of performing each element of a crime, a willing victim of a crime who logically cannot commit a crime with relation to themselves is therefore a conspirator. A willing victim of a crime that requires some act towards another is not only unable to commit that crime with relation to themselves; they do not even intend for some criminal act to happen to someone other than themselves. I can see arguments here either way - on the one hand, it seems very strange to punish someone who contracts to kill herself as if she contracted to kill someone else, on the other, it may not be so strange given that she's intended for the commission of a murder - but it's certainly a very hard problem.
The Justices, however, who engaged with this problem didn't seem to find it very hard. Not a single Justice vocally bought into Ocasio's central point - that there was no conspiracy to obtain property from another because the persons from whom property was obtained were conspirators - and several Justices clearly rejected it. Justice Kagan repeatedly insisted that Ocasio and the body-shop owners had conspired that Ocasio would obtain money from another, and that "there's no reason under standard conspiracy law that we would use the perspective of the agreer [the body shop owners] rather than the perspective of the perpetrator [Ocasio]." Justice Sotomayor echoed these points. Justice Alito suggested that Ocasio's case was no different from the Court's old Mann Act conspiracy cases, in which women were convicted of conspiring with others to "transport any woman," i.e., themselves, across state lines for purposes of prostitution. Ethan Davis, counsel for Ocasio, tried to argue that "any woman" was different from "another," which seems quite right ("any woman" does not necessarily exclude self-transporters, while "obtaining of property of another" does exclude obtaining money from oneself), but that didn't convince Justice Alito, who replied that "any woman" subsumed "another." Justice Breyer, for his part, said that once the Court took the step of interpreting extortion to include taking bribes, it followed that conspiracy to extort would include schemes to give and receive bribes.
This isn't to say that Ocasio entirely lacked for support today. Justice Scalia, who dissented in the Court's decision holding that Hobbs Act extortion included accepting bribes, continues to believe that that decision is wrong and repeatedly suggested that the Court shouldn't extend it any further. Justice Kennedy expressed some concerns about the federalization of state bribery law, and the possibility that on the government's view, every willing giving and taking of a bribe would become a conspiracy to extort. Allon Kedem, assistant to the Solicitor General, attempted to allay these concerns by proposing an "active participation" requirement, under which more than merely agreeing to give a bribe would be needed to make out a conspiracy, but several Justices (Kagan, Scalia) questioned how such a requirement could be squared with traditional conspiracy law. Kedem claimed, in response, that something like it was in the old Mann Act conspiracy cases. Justice Breyer, for his part, seemed to accept that something like an active-participation test was inevitable once the Court took the step of conflating extortion with bribe-taking. Chief Justice Roberts was concerned that active participation was never charged to the jury, and was very interested in the government's claim that, even if the jury instructions on which Ocasio could be convicted for conspiring with the body shop owners were improper, there was sufficient evidence to convict Ocasio because he conspired with other police officers to take bribes. That interest might suggest that Roberts is skeptical of the government's defense of the jury instructions, as might several questions he put to Davis, which looked to me like attempts to fill in gaps in Ocasio's argument.
Prediction: Ocasio may have anywhere from one (Scalia) to four (Scalia, Roberts, Kennedy, Thomas) votes, and probably has at least two or three, but I struggle to see where he gets his majority. I do think the Court will be forced to accept some version of the government's active-participation requirement, lest it turn every giving and taking of a bribe into a conspiracy to extort.
* I should note that I'm recapping Ocasio from a transcript which is unusually rocky - much more so than first-day transcripts of oral arguments at the Court have been in the past. Some of the more fun and/or notable mistakes in this transcript: "old English . . . cases" got rendered as "Olde English . . . cases" (Olde English is a brand of cheap malt liquor), while Ocasio's counsel is transcribed at one point as saying "I think going back to how that kind of conversation would happen in ordinary English is a way to severability 80's not plausible to read the statute like that." One imagines some sort of VH1 show on 1980s severability law.
Hawkins v. Community Bank of Raymore - Argument Recap (corrected)
Hawkins v. Community Bank of Raymore, a case on which I wrote previously, on whether spousal guarantors, or only borrowers, may sue to enforce the Equal Credit Opportunity Act's (ECOA's) prohibition of spousal guaranty requirements, was argued yesterday morning. The ECOA gives a cause of action to "applicants" for credit; an agency regulation interpreting ECOA defines applicants to include guarantors solely for purposes of enforcing ECOA's spousal-guaranty-requirement prohibitions. Plaintiffs in this case are spousal guarantors who, leaning on the agency regulation, argue they are applicants with causes of action under ECOA. The defendant bank argues that the regulation fails at Step One of Chevron.
Today's argument was thoroughly predictable (though fun), with the Court's leading textualist (Justice Scalia) leading the charge for an ordinary-meaning reading of "applicant" that would exclude guarantors, and the Court's leading purposivists (Justices Breyer and Kagan) pushing for a contextual, purpose-sensitive reading of "applicant" that would include guarantors. Other Justices divided along the lines the Justices usually divide in divided cases, while Justice Kennedy didn't say quite enough to be counted as a safe vote for either side, but appeared to be leaning slightly in favor of plaintiffs.
On Chevron, which I flagged as an area where Hawkins might break some new ground in a couple respects, there was no indication that anyone on the Court had a Step Zero/Mead problem with Chevron's applicability here. There was, however, some indication that a couple of Justices were concerned about the agency's selectively defining "applicant" to include guarantors for purposes of only one of ECOA's many protections, and whether such a selective definition could receive deference, even if a definition that treated guarantors as applicants for all purposes could.
I would expect plaintiffs to win 5-4 in a decision that sidesteps the selectivity of the agency's definition by deferring only to the agency's choice to define applicants as guarantors for spousal-guaranty purposes, while bracketing whether their choice to treat guarantors as non-applicants for all other purposes was reasonable. I'll break up my recap into a discussion of what was said about the interpretive question of whether guarantors are applicants, and a separate discussion of what was said about the Chevron problem with the agency's definition.
Are Guarantors Applicants?
Plaintiffs, represented by John Duggan, a first-time Supreme Court advocate, split time with an assistant to the Solicitor General, who is defending the agency regulation. Duggan had a respectable first outing, but the highlight of his time at the lectern was an exchange of hypotheticals and views on statutory interpretation between Justices Scalia and Breyer.
Justice Scalia began the exchange by asking Duggan whether, if he, Scalia, were to write a letter of recommendation to a law school requesting the school to admit an applicant, he too would be an applicant to the school. If not, he suggested, a woman who impliedly requests that a bank extend credit to her husband by executing a guaranty is not an applicant for credit. Duggan weakly replied that the difference between that hypothetical and his case was that Justice Scalia would not be jointly and severally liable for the applicant's tuition. Justice Breyer then interjected with a friendly hypothetical of a parent who applies for her child to get into private school; wouldn't the parent be an applicant, even though she was requesting admission for her child, not for herself? Justice Scalia, amusingly, proceeded to chide Justice Breyer for posing this question,
JUSTICE SCALIA: Well, you shouldn't -- you shouldn't have asked that!
JUSTICE BREYER: I have a parent applies for--
JUSTICE BREYER: What? Wait. A parent applies for a child... the child is seven years old, and has a hard time writing the application...
JUSTICE SCALIA: Change the seven-year-old to a young man who is applying to law school, who is already shaving, for Pete's sake.*
* Flawed transcription strikes again! The courtroom audio reveals at 7:30 that Duggan, not Scalia, said "you and I share that concern."
Justice Breyer, however, was unpersuaded that "applicant" only means third-party applicants (i.e., people who apply for another to receive a benefit) when the real applicants are minors. Instead, he drew the familiar Breyerian lesson from his and Scalia's hypotheticals that "how we use 'applicant' depends on context," and asked Duggan what it was "about the context of the guarantor of a loan that makes it reasonable in that context to call that person an applicant." Before Duggan could answer, Scalia delivered a textualist broadside:
Well, I don't agree with the hypothesis. Why do you accept the hypothesis? What it means depends upon the context? It means what it means. Now, whether the person is an applicant within the understood meaning of "applicant," that depends upon the context, but the meaning of the word doesn't change.
Duggan again answered that guarantors are applicants because of their liability and turned the podium over to Brian Fletcher, assistant to the Solicitor General. Fletcher immediately encountered resistance from Chief Justice Roberts and Justice Alito. Chief Justice Roberts suggested that, in the banking industry, "applicant" and "guarantor" have always been understood to carry separate meanings; Fletcher pointed out that in ECOA, the word "guarantor" is never used. Justice Alito asked whether "applicant" didn't always mean someone requesting a benefit for himself, and suggested that even in Justice Breyer's hypothetical of the parent applying for her child, the parent isn't really an applicant. Fletcher could only say that he disagreed. Justice Alito also suggested that whether spousal guarantors had a cause of action only made a difference where their interests were adverse to that of their borrower-spouses; Fletcher, in reply, made the very good point that spousal guarantors bear the economic brunt of spousal guaranties. Finally, Justice Kennedy wanted to know whether the government thought there was any part of ECOA where "applicant" couldn't mean guarantor; Fletcher said there wasn't, but that the agency had chosen to exempt guarantors from most of ECOA's protections (on which more later).
Stephen McAllister, a University of Kansas law professor who both serves as the Solicitor General of Kansas and has a private practice, argued for the defendant bank. He began, oddly, by claiming that the government's argument rested on an aggressive overreading of Chevron, on which, for the bank to win at Step One, "applicant" must unambiguously exclude guarantors, rather than only unambiguously not include them. What exactly the difference between an unambiguous exclusion and an unambiguous non-inclusion is, McAllister never said, and after no one expressed interest in the point he immediately dropped it and never came back to it.
He then took a lengthy volley of questions from Justice Kagan, who wanted to know why Congress would have given a cause of action to joint borrowers but not co-signers, guarantors, and the like, given the functional similarities between them. In response to these purposivist questions, McAllister eventually told a purposivist story about ECOA, on which Congress really only wanted to protect married borrowers, particularly women, from being saddled to the credit histories of their guarantor-spouses -- not to protect spouses from the imposition of spousal guaranties.
Justice Kagan had no response to this plausible-enough narrative, but just when McAllister appeared to have won a point on the purposivist front, Justice Breyer intervened to push McAllister on text. Why can't we say, he asked, that a guarantor has "applied for the credit to go to [a borrower]? I mean, in English, hasn't he?" McAllister could only demur that we don't ordinarily use "applicant" this way - a tricky claim to make persuasively, as he essentially needed to prove a negative about ordinary English usage. Justice Sotomayor pointed out that the only dictionary that says applicants usually apply for their own benefit is Webster's Third, a dictionary which she noted "has been criticized by at least one of my colleagues," at which point Justice Scalia, the critic she was alluding to, joked that "it's a terrible dictionary." McAllister insisted, nevertheless, that in "ordinary parlance" applicants apply for their own benefit.
Justice Ginsburg expressed doubts on that point, and Justice Breyer, again playing the textualist, said that dictionaries define applicants as people who make requests and asked why a guarantor, who requests a bank to extend credit to a borrower, isn't therefore an applicant. Justice Scalia said that on that definition, he would be an applicant any time he requested an admissions officer to admit an applicant in a recommendation letter, which proved the infirmity of the dictionary definition. Justice Sotomayor attempted, not entirely successfully, to distinguish Scalia's hypothetical, while Justice Kagan cleverly argued that the fact that third-party credit is the consideration for a guaranty that makes the guaranty binding shows that a guarantor is just as much an applicant for the extension of credit as a borrower.
Finally, Justice Kennedy asked McAllister if he could identify a single place in the statute "where it really would be contrary to a sensible interpretation of the Act" to interpret "applicant" to mean guarantor. McAllister referenced certain notice provisions, to which Justice Sotomayor countered that those provisions wouldn't be unworkable if construed to cover guarantors, which McAllister conceded. McAllister closed by warning the Court that if it ruled for the plaintiffs, banks would never make an unsecured guaranty-backed loan to a married couple again because they would have to worry about the guarantors suing under ECOA to void the guaranties. Duggan effectively countered this point on reply, explaining that banks could avoid spousal guaranty liability by, among other means, asking spouses to be co-borrowers.
In short, on the meaning of "applicant" and the reasonableness of the agency's interpretation, the Court looked to be divided down the middle along the usual lines, with Justice Kennedy seeking to assure himself that a ruling for the plaintiffs wouldn't create any problematic collateral consequences elsewhere in ECOA. Note, however, that the premise of Justice Kennedy's questions - that the agency has globally defined "applicant" to include guarantor and that what's at stake here is that interpretation - is factually inaccurate. (A couple of Justices seemed to be unaware of the selectivity of the agency's definition of "applicant," and understandably so, given how little was said about it in the briefs.) So it's somewhat difficult to predict what Justice Kennedy will make of the case once that mistake is cleared up in conference.
The Agency's Selective Defintion of "Applicant"
A peculiar quirk of this case, discussed in my last post, is that while the agency insists that "applicant" can mean guarantor, it has read "applicant" to mean guarantor with respect to only one rule enforcing one aspect of ECOA's prohibition of marital-status discrimination, which is one of only eight types of discrimination ECOA prohibits. What gives the agency the power to do that, and can the Court defer to such an interpretation?
This issue stuck in Justice Scalia's craw all morning. The first time he raised it, Mr. Duggan replied that the Court had previously held, in Duke Energy, that an agency may permissibly give different readings to the same defined term in different parts of a statute. Duke Energy's a helpful case to the plaintiffs and the government, but it's also rather distinguishable, as the Justices will no doubt find when they sit down to write an opinion. In Duke Energy, the Court held that the EPA could interpret an ambiguously defined term in the Clean Air Act, "modification," to mean different things in different parts of the Clean Air Act that address different pollution control schemes. In this case, the usages of "applicant" that are being interpreted are all the same usage - the sentence of the statute that gives a cause of action to "the aggrieved applicant" for violations of ECOA. The agency has interpreted that solitary usage to include guarantors with respect to some violations but not others. Even if one were to look through the cause of action to the substantive provisions of ECOA, the anti-discrimination provision, for example, is a single sentence that provides it "shall be unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction," on the basis of eight different traits, including marital status. It's difficult to see how "applicant" changes meaning within the same sentence depending on which trait's at issue - though it's true that one type of discrimination covered by ECOA, marital-status discrimination, has more of a bearing on guaranties than others.
When Justice Scalia asked Mr. Fletcher about the agency's selective definition, his response was rather different than Mr. Duggan's. On his account, the agency had read applicant to mean guarantor, but then decided to "exempt them" from almost every ECOA protection. The agency could do this, he explained, because of its unusual grant of rulemaking authority, which provides that it may "provide for such adjustments and exceptions for any class of transactions, as in the judgment of the Bureau are necessary or proper to effectuate the purposes of this subchapter, to prevent circumvention or evasion thereof, or to facilitate or substantiate compliance therewith." This certainly gives what the agency's doing a textual hook, but it's a troubling sort of textual hook that isn't likely to appeal to the Court's Chevron-skeptics; does ECOA really mean that the agency can cut a class of plaintiffs out of a cause of action they're otherwise entitled to?
It's hard to tell whether other members of the Court were troubled by the agency's selective definition of "guarantor," in part because several members of the Court didn't seem to know about it. Justice Sotomayor at one point averred that ECOA only covered marital-status discrimination (not so), while Justice Kennedy suggested at one point that the agency had read "applicant" to include guarantors across the board. Justice Kagan was the only other Justice who raised the issue, and she raised it only by way of suggesting to Mr. Fletcher that perhaps the agency wasn't really convinced of its interpretation.
My prediction here is that a majority will rule for plaintiffs and defer to the agency's interpretation of applicant to include guarantors for purposes of the spousal guaranty rule, without passing on whether its exclusion of guarantors for all other purposes was reasonable. I would be very surprised to see an affirmative holding that it was, or to see any reliance on the exceptions clause of the agency's grant of rulemaking authority. Instead, the Court's likely to say that any underinclusion in the agency's definition is an issue for a case where a guarantor argues he's an applicant for purposes of making some non-spousal-guaranty claim; the only aspect of the agency's definition now before the Court, they'll likely say, is its inclusion of guarantors for spousal-guaranty purposes. On the other hand, should Justice Kennedy join Justices Scalia et al., which wouldn't come as a complete shock, the selectivity of the agency's definition could play an important role in a majority opinion denying the agency deference.
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