SCOTUSblog overreacts just a tad

Tom Goldstein, the force behind the excellent SCOTUSblog, has a post severely criticizing the RNC for creating the ad embedded below, which uses the audio of Solicitor General Donald Verrilli's rather infamous stumbling at the beginning of his argument in defense of the individual mandate:

Goldstein's criticism is that the audio is "doctored" because it plays the sound of Donald Verrilli drinking ice water and saying "excuse me" twice, when in fact he only drank ice water and said "excuse me" once. According to Goldstein, this is pretty much as bad as inserting "someone with the same voice as Verrilli saying, 'Mr. Chief Justice, we believe the individual mandate should be upheld because we hate the Constitution?'"

As political ads go, this strikes me as pretty tame. It's perhaps a bad sign when I have to use one of my parenting catchphrases here: "Toughen up."

But Goldstein does make a pretty good point, I think, when he argues that this kind of manipulation for political purposes is why the Supreme Court resists every effort to allow oral arguments to be televised:

the Justices now have before them a perfect illustration of the gross distortion that can instantly be made of recordings of their proceedings.  What is to stop the same misleading stunt being pulled with the Justices’ own oral argument questions and comments?  Nothing at all.

Indeed, one needn't look far to find precisely that. For example, at one point Justice Scalia said that the young, healthy people who choose not to buy health insurance at current prices are "not stupid," the point being that they are making a rational calculation (perhaps right, perhaps wrong) that they would pay more in health insurance premiums than they are likely to pay for health services, so insurance is a bad deal for them. This is uncontroversial; it is the one of the main reasons that the law tries to force everyone to buy insurance: so that insurance companies can make profits while charging lower prices.

But in more than one article this statement has been twisted around to an assertion amounting to "if you are young and you pay for insurance, Scalia finds you 'stupid.'" Yikes.

Then there is this, from the New York Times:

But then came Justice Scalia’s now famous invocation of broccoli. “Everybody has to buy food sooner or later, so you define the market as food,” he said. “Therefore, everybody is in the market. Therefore, you can make people buy broccoli.” Justice Samuel A. Alito Jr. chimed in, asking Solicitor General Donald B. Verrilli Jr. to answer “as succinctly as you possibly can.”

From this account, you would conclude that Justice Alito piled on and demanded a succinct answer to the famous and supposedly tendentious "broccoli question." But he absolutely did no such thing. Scalia raises the broccoli issue on page 13 of the transcript (and the 12-minute mark of the audio file):

Could you define the market -- everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.

Mr. Verrilli gives his answer, and then there is some discussion. Broccoli is next mentioned on page 17, by Chief Justice Roberts:

That, it seems to me, is -- and it's a passage in your reply brief that I didn't quite grasp. It's the same point. You say health insurance is not purchased for its own sake, like a car or broccoli; it is a means of financing health care consumption and covering universal risks. Well, a car or broccoli aren't purchased for their own sake, either.

Shortly thereafter, the argument moves on to other variations on the theme.  Alito never asked a question during the broccoli part of the argument. Much later, Mr. Verrilli sets out what he (correctly, in my view) believes to be the fundamental question:

The question is, is there a limit to the authority that we're advocating here under the commerce power? And the answer is yes, because we are not advocating for a power that would allow Congress to compel purchases.

It is at this precise point, after Mr. Verrilli raises the topic of what limit there is to the commerce power, that Justice Alito speaks:

Before you move on, could you express your limiting principle as succinctly as you possibly can? Congress can force people to purchase a product where the failure to purchase the product has a substantial effect on interstate commerce, if what? If this is part of a larger regulatory scheme? 

This is page 43 and the 45:30 mark of the audio file—a full 33 minuttes after Scalia had the gall to mention broccoli!

After all that, I urge you to go back and read the excerpt from the New York Times article and conclude for yourself whether the false impression it creates is more or less egregious than the false impression created by the RNC ad.

Anyhow, those are just a couple of examples. I've come across many other distortions from people who should know better, but I haven't the stomach to go back and find them.

Inflammmatory stupidity loses again.

Now that the Obamacare oral arguments are over, America can get back to asking questions rather than listening to nine middle-aged/old people ask questions.  One question on the minds of many, whatever happened to Andrew Shirvell?  We did a fair number of posts about him in the fall of 2010 but since then we have not done any. 

"Whatever arguments the conservative justices have concocted to nullify an individual mandate, they can discover different ones to nullify a much more intrusive big-government system."

Says Jonathan Chait.

What do you think, Mr. Gillette? Are you that cynical?

A litigator's nightmare

As the Proof & Hearsay blog reports, the Wisconsin Supreme Court today suspended two lawyers—Joe Sommers and and Paul Humphrey—for 30 days each. The suspensions arise out of their conduct in a single criminal case in which Humphrey was the prosecutor and Sommers was the defense attorney.

We civil litigators are used to cases getting kind of ugly, with accusations of discovery abuse and threats of sanctions thrown around with abandon. But my impression (based partly on a short stint as a city prosecutor) was that things were usually a little more civil (ha ha) among criminal lawyers. Apparently not.

Although each lawyer received the same punishment, their offending conduct was quite distinct.

The prosecutor, Mr. Humphrey, was alleged to have withheld evidence (some photographs) and then to have lied about it in an affidavit and in court. Mr. Humphrey denied the accusation, claiming that he did "make available" the photographs, but that Mr. Sommers did not avail himself of the opportunity to receive them.

Mr. Sommers's suspension, on the other hand, is based on outrageous in-court conduct and statements. The statements are quoted at length in the court's opinion in paragraphs 45 through 53. In essence, he leveled an accusation that the case had been "orchestrated" between the judge and the prosecutor, and, in open court, called the proceeding a "kangaroo court." He made these accusations, apparently, while yelling loudly enough that at one point nine court bailiffs ran into the courtroom assuming that some sort of altercation was occurring. Eventually, the trial judge had enough:

Can you stop, please, Joe?  Joe Sommers listen to me.  I don't think I've ever done this across the bench before.  I have read this file twice.  This is not the first time that it appears that you're an attorney that's out of control.  The record reflects that.  And it clearly does today.  Oh, it isn't going to reflect the amount of volume that you had or how totally out of control you were, that it required six, seven, eight bailiffs in here to see what was going on to protect the dignity of the Court which diminished entirely with your outrageous demeanor.  

. . .  

I understand passion.  I've seen many of the defense attorneys that are sitting here passionate -- passionate about what they do.  They don't react in the manner that you just did.  They don't -- They tend to let go.  They tend to make their case.  They tend to make their motion, and if they lose it, they know there's an appellate route.  There is a way to get someone to review this.   

I seriously question whether you've got yourself together, Joe Sommers.  I'm sorry.  But you are not in control.  I am very fearful of going forward with a jury, it's almost a certain mistrial.  It is almost impossible to get you to stop talking, and there was no stopping you minutes ago when all those bailiffs -- there was no stopping you, nothing I said or could have done.  

. . .  

And I'm trying very hard, very hard to be fair under what I consider extraordinarily difficult proceedings today.  Very difficult.   

I -- I'm just amazed at how out of control you have become.  And today kind of the last nail in the coffin, so to speak, is when you tie me into the conspiracy.  And you said oh, no, it's not quite a conspiracy, you have a good record, Judge, for all these years, but this morning there was an orchestration with these people here . . .

Of course, it wouldn't be a Wisconsin Supreme Court opinion without childish sniping between the justices. Yes, even in disciplinary cases decided in per curiam opinions. The impetus for the infighting this time is Justice Prosser's dissent in the Humphrey case, in which he argues that the suspension is an inappropriate penalty for what he terms "semantic disputes" and that a public reprimand would be more appropriate. He also objects to imposing the full costs of the proceeding against Mr. Humphrey.

But he goes further, stating that the circumstance of the case—particularly that it was tied to the case against Mr. Sommers, even though the disciplinary matters were fully discrete—were "irregular" and "seriously undermine the confidence in the in the lawyer regulation system." Among his specific complaints is that Humphrey was left "twisting in the wind" for three-and-a-half years while the Supreme Court decided the Sommers case. The underlying conduct occurred in 2004; oral argument at the Supreme Court was in 2008. The opinion came down today.

To Chief Justice Abrahamson, Prosser's dissent is full of "storm and fury and nasty insinuations about the court's actions." She admits that the case "took too long" but caustically rebuts Prosser's assertion that there was anything in the case amounting to an "irregularity" that could call into question the legitimacy of the lawyer regulation system.

On the face of it, giving both Sommers and Humphrey the same 30-day suspension seems to approach an abdication of judgment, given that Sommers's in-court comments are among the most outrageous open-court accusations I've ever heard leveled against a judge by a member of the bar. But that's debateable, I guess. What is not debateable, I think, is that the delays in this case—eight years in total, three-and-a-half years between oral argument and opinions—amount to a miscarriage of justice. Even after the Sommers case was argued in 2010, it took the Supreme Court 16 months to issue these opinions. That is just ridiculous. The Wisconsin Supreme Court has to get its act together.

Thanks for the music Mr. Scruggs.

Earl Scruggs has died at the age of 88.  May he rest in peace.

The Importance of a Limiting Principle

During oral argument in the Obamacare case, one of the most heated issues was whether the individual mandate is consistent with any "limiting principle" of Congress's power under the Commerce Clause. Libertarian opponents of the mandate argue that there is no such limiting principle, while supporters of the law argue that there is.

A third group, however, seems to think that this talk of a limiting principle is nonsense. For example, Slate blogger Matthew Yglesias asks "What Is The Limiting Principle Of The Taxing Power?":

Congress could, if it wanted to, completely vitiate economic freedom purely through the tax code. You would impose a statutory rate of 100 percent and then create deductions for the stuff Congress wants you to buy—houses, health insurance, broccoli, whatever. . . If a political consensus exists that Congress wants to financially penalize non-purchase of broccoli, Congress will find a way. 

His argument is that the search for a limiting principle to the commerce power is pointless because Congress's other powers, such as the taxing power, have no limiting principle.  In other words, Congress can already do what it wants, so objections based on federalism and liberty are hollow.

This is incorrect. Congress could surely use its taxing power to accomplish all sorts of economic goals in the way that Yglesias suggests. But there is a clear structural limit to Congress's taxing power: the power to tax is limited to the power to take people's money away. The power to tax is not a power to directly regulate behavior at all. It is not a police power.

The commerce power, however, is a general police power to regulate any behavior with a substantial effect on interstate commerce. For example, Congress "regulates" the possession of controlled substances in interstate commerce by imprisoning people for possessing them. Thus, if Congress has the power under the commerce clause to mandate that people buy health insurance, it has the power to imprison them for failing to do so. (So far, it has chosen only to fine people.) The end result is that if there is no limiting principle on the commerce power—if the simple act of being alive is a commercial act—then Congress has the power to imprison anyone for anything. In other words, a general police power.

It is uncontroversial that the constitution does not grant Congress that kind of unfettered police power. Accordingly, the lack of a limiting principle works as a reductio ad absurdum, and the conclusion is that there must be a principled limit on the kinds of behavior that Congress can regulate under the Commerce Clause.

Laughing at Obamacare: a final tally

The morning and afternoon sessions of the Supreme Court's hearing on the constitutionality of Obamacare are done.  The morning transcript is here and the afternoon transcript is here.  For reasons that should be obvious given my last post, I will not predict which side won. 

We will, however, continue our coverage over whether Justice Thomas spoke at the hearing (he did not) and whether there were any laughs at the hearing (there were).  More on that after the break.

If it is so obvious that Obamacare is doomed, why do they bother with a third day of hearings?

I first started reading Slate when I was in law school.  I don't recall how I found out about it, but the feature that caught my attention was "Supreme Court Dispatches."  The dispatches were a weekly feature that would provide a report on what happened at the Supreme Court oral argument that  week.  Eventually, the dispatches stopped coming out every week and now only come out on well-publicized cases.

I thought about the Supreme Court Dispatches yesterday when the various media reports came out about how Obamacare is doomed based on yesterday's oral argument.  For example, CNN legal analyst Jeffrey Toobin says that the individual mandate is "doomed" based on how the oral argument went.  Ezra Klien of the Washington Post suggested that the apparently inevitable striking down of Obamacare might not have happened if Justice Kagen was still Solicitor General.

Predicting how the Supreme Court would rule based on oral argument was a frequent part of the Supreme Court Dispatches.  It was also frequently wrong.  For example, when reporting on Fitzgerald v. Barnstable School Committee et. al., Dahlia Lithwick predicts that the poor kindergartner who was sexually harassed on a school bus is going to lose.  Then the opinion came out and the student won in a unanimous opinion.  Ms. Lithwick's colleague, Emily Bazelon, wrote a piece predicting that the employee in CBOCS West, Inc., v. Humpries, would lose his retaliation claim because the Supreme Court's "right flank could use this case not only to block suits for retaliation like Humphries', but also to set the stage to make it ever harder to sue for discrimination under other laws."  The Supreme Court ruled 7-2 in the employee's favor.  Ms. Lithwick predicted that the "the most business-friendly Supreme Court in decades" would rule for big business in Wyeth v. Levine.  Instead, big business lost a 6-3 decision.  Ms. Lithwick also predicted that historians would use the case of Safford Unified School District #1 v. Redding as an example of  "not getting it" because the oral argument so badly for the student who was subjected to a strip search because she brought prescription-strength ibuprofen to school.  The student won a 8-1 decision.

The point of this post isn't that Ms. Lithwick, Mr. Toobin, and Ms. Bazelon are terrible at predicting what the Supreme Court will do (at least that is not the intended point).  Instead, my point is that it is silly to try to predict how a case will come out based on oral argument and people should ignore any predictions based on oral argument.  All oral argument does is demonstrate that some of the justices like to watch lawyers respond to tough questions (and make jokes).  Fans of Obamacare (the statute, not the word) should not despair that the law will be struck down and foes of Obamacare should not be too encouraged by the fact that the Solicitor General faced some tough questions.  I am biased, but I still think the best prediction on the outcome of the case was made almost two years ago.

And the other shoe drops...

A couple of weeks ago I posted about how the University of St. Thomas School of Law had replaced the William Mitchell College of Law as the second ranked law school in the Twin Cities in the US News best law school rankings.  The post noted that St. Thomas, despite taking its data accuracy "very seriously," had over reported by more than 200% the number of St. Thomas graduates who were employed at graduation.  It wasn't clear to me whether correct reporting would have ranked William Mitchell above St. Thomas.

We don't have an answer to that question but the National Law Journal reports that US News has decided to move St. Thomas into the "unranked" rankings.  Unranked schools are the lowest 25% of American Bar Association accredited schools. An asterisk will appear next to St. Thomas's entry to explain the change.

Unsurprisingly, Thomas Mengler, the dean at St. Thomas, is not very happy about this.  Dean Mengler wrote a letter to US News complaining that in previous years schools did not suffer in the rankings until the year following the discovery of inflated numbers.  I have no idea why a worse rating next year is better than a worse rating this year but assume that Dean Mengler knows what he is doing. 

That said, Dean Mengler really isn't concerned about the punishment that St. Thomas receives.  He is more concerned that future accidental mistakes of this nature will not be uncovered because of the precedent set by US News.  Dean Mengler writes, "I fear your decision will serve as a disincentive for others to self-report errors."  That may be true.  However, a steep punishment might also serve to make folks double check so that the numbers are accurate the first time.  In any event, it is nice to see the Dean take time out from his immediate problem and instead focus on how the punishment hurts the punisher.

Borat Swimsuit = Prior Art

Someone tried to patent the famous Borat swimsuit as a "scrotal support device," but the Patent Office rejected the application based on pictures of Sasha Baron Cohen wearing the "device":

Sometimes the system works, I guess.

H/t: IPWatchdog