Monday, April 24, 2023

We Shouldn't Let Justice Alito Slip Away This Week

Twitter is blocking substack links in tweets, but Blogger isn't blogging them in posts, so: here's the link.

What's interesting here is the petulance of Alito.  There are legal issues he raises about equities (no, not equities in treatment of persons, but equities as in equity as the part of law that allows for the issuance of injunctions), but it's the sheer petulance that's almost as interesting to me as a lawyer.  Because judges and Justices are supposed to be somewhat imperious and not get caught up in petty bickering (although Scalia made a public figure career out of such sniping.  The press seemed to think it was "cute" and a sign of his "genius."  As all who know me on the subject of Scalia know, I think Scalia was a putz who was considered smart because he never lost an opportunity to tell everybody he was.  The last brilliant jurist we had on the Bench was Ruth Bader Ginsburg, although I'm increasingly impressed with Justice Jackson.  Scalia wasn't fit, intellectually at least, to hold Ginsburg's collar hanger.  It's telling people are still discovering the brilliance of Ginsburg, while so many think Scalia was the "smart one.").

Let’s start with the hypocrisy charge. In leveling it, Alito quoted from an earlier dissent by Justice Sotomayor and from Justice Kagan’s dissents in the Alabama redistricting and SB8 cases, all of which criticized the majority’s use of the shadow docket. But Alito cut off his quote from Kagan’s SB8 dissent in a way that is quite revealing. In that case, Kagan had criticized the majority’s refusal to intervene to block Texas’s six-week abortion ban as “emblematic of too much of this Court’s shadow-docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend.” In his dissent on Friday, Alito cut off Kagan’s charge at “unreasoned,” as if that was her only objection (this is pedantic, but he also doesn’t use an ellipsis to indicate that the quote was stopped mid-sentence):

I'm leaving out the actual language Alito used, which Professor Vladeck quotes in full.  You can read his entire article at the link.  I just want to discuss some of the ideas there, and offer my own commentary.

Why, to begin with, is Alito quoting Kagan, except to point out what he thinks is a feeble inconsistency?  And he has to doctor the quote just to make his point.  Frankly, one expects a bit better of the High Court.  You don't always get it, but you can expect it.  Here is the point in Professor Vladeck's words:

In other words, Alito is accusing Justices Sotomayor, Kagan, and Barrett (whose cryptic October 2021 concurrence in Does 1–3 v. Mills he also invoked)2 of hypocrisy because the Court granted emergency relief without any explanation in the mifepristone case, and then using the charge of others’ hypocrisy to defend his own hypocrisy here (since he was on the other side in all four of the cases he cited). 

It's a cheap and petty shot, in other words; hardly a sound or insightful legal argument.  One wonders why Alito bothered, except it's plain:  he wants his sting, and he wants it public.  He's dissenting so he can bitch.  That much, I think, becomes clear as the opinion and the analysis of that opinion, unforld.  And there's a reason bitching in a legal opinion is a problem, which is precisely the reason Professor Vladeck has been pointing out (and, ironically, which offends Alito's delicate sensibilities on this topic so):

In other words, shadow docket rulings aren’t problematic based on whether they do or do not grant emergency relief; they’re problematic because the Court’s unexplained rulings both appear to not be applying neutral procedural, substantive, and/or jurisdictional principles consistently and are nevertheless being treated as precedents by both the Justices themselves and lower courts. That is to say, granting emergency relief in some contexts in which the traditional (statutory) criteria clearly aren’t satisfied, and not explaining why, paints the Court in an especially unflattering light when the grants tend to correspond with the partisan valence of the dispute.

The shadow docket, it must be underlined, is a useful tool of appellate procedure.  The problem is its use to promote a "partisan valence."  That's really where this analysis goes, although I emphasize it a bit more than Professor Vladeck does.  He's a respected law professor, I'm an unheralded blogger with a fuzzy memory of law school and legal practice.  I can get away with being sharper in my opinions, in other words.

There is a middle argument about equitable relief in the Professor's post which would only be of interest to lawyers (raises hand).  I pass over it for that reason alone, because the third prong of the Professor's analysis is this altogether remarkable passage:

That would not take place, however, unless the FDA elected to use its enforcement discretion to stop Danco, and the applicants’ papers do not provide any reason to believe the FDA would make that choice. The FDA has previously invoked enforcement discretion to permit the distribution of mifepristone in a way that the regulations then in force prohibited, and here, the Government has not dispelled legitimate doubts that it would even obey an unfavorable order in these cases, much less that it would choose to take enforcement actions to which it has strong objections. 

That's the Professor's emphasis.  And I'll use his words to underline the point that the highlighted language is, in my terms, completely out of line.

But then there’s the bolded passage—and the remarkable assertion that “the Government has not dispelled legitimate doubts that it would even obey an unfavorable order in these cases.” You’ll note that Alito cites to precisely zero authority either for the “legitimate doubts” or for the government somehow having an obligation to “dispel” those doubts. Yes, members of Congress (from both parties) have suggested that the Biden administration shouldn’t follow an adverse ruling in the mifepristone case. But not only has no one in the executive branch even hinted that such a move was remotely in the cards; the White House specifically poured cold water on the idea. Near as I can tell, it’s been 162 years since the last time a President directly ignored a court order—and, right-wing fever dreams notwithstanding, I don’t exactly see President Biden or Attorney General Garland as likely heirs to the Merryman precedent.

Against that backdrop, it’s hard to imagine where Justice Alito got these “legitimate doubts” from (except, perhaps, right-wing media). Suffice it to say, before a Supreme Court Justice (let alone one with prior executive branch experience) publicly levels such a charge against the incumbent administration, it might behoove them to provide some evidentiary support. And even then, this argument still rises and falls on the novel view that a party can’t show irreparable harm unless the current executive publicly commits to enforcing the relevant law against them. It’s just wrong on so many different levels.

Wikipedia is hardly a sound legal resource, but "the Merryman precedent" is an interestingly complicated story which the article covers in fairly good terms as to both the law and the historical context (I'm in no position to critique). That's here so you can fill in that blank (as I had to), but we won't be diverted by it (mostly because I'm now knowledgeable enough to flesh it out properly in this context).

My first problem with Alito's comment is the evidentiary question.  Courts can take judicial notice of facts outside the record before them, but in general they shouldn't do it without exemplary reasons.  As the passage says, Alito undoubtedly got this information from right-wing media.  That's hardly a reason to fold it into a Supreme Court opinion.  And it certainly calls into question the neutral and judicial stance Justices are expected to at least present in public.  I mean, if news reports are enough for Justice Alito to base a legal opinion on, they should be enough to get Clarence Thomas at least before Congress, if not forced off the high court altogether.  And yet I doubt Justice Alito would find that sufficient grounds for either outcome.

It's a highly partisan conclusion, to pay attention to certain news reports while ignoring the White House comments that ignoring the lower court ruling was not an option.  There's certainly no evidence in the record that this is, or was even considered seriously to be, the government's position.  Not being part of the record, there's no reason for Alito to float it in and glibly use it to base his dissent on. There are more serious evidentiary questions about standing (how are the plaintiffs harmed by the use of this drug by women in America?) than there are about how the Government would respond to an unfavorable ruling in this case.  And there is, again, the question of equity and equitable remedies:  do they rest on the assurances of the Government that it will be a government of laws, not of men?  Is that the new default which must apply when Democrats are in the White House?  Yeah, that's neutral and non-partisan, isn't it?

Professor Vladeck, in the end, has a more charitable (and judicious!) view of the matter than I do:

In all, it’s hard to look at Justice Alito’s dissent and not agree with Will Baude’s typically thoughtful take from Saturday over at Volokh Conspiracy—that rushed opinions like Alito’s reinforce why it’s not a good idea for the Court to be deciding significant legal questions through such an abbreviated process. The compressed schedule (which Alito himself played a big part in compressing by putting arbitrary deadlines on his administrative stays) does not appear to have served Alito well in the mifepristone case—a point that his dissent unintentionally but emphatically drives home.

Perhaps on reflection Justice Alito would have thought better of his intemperate pen (sorry, but "word processor" or even "keyboard" just doesn't work in that metaphor).  Perhaps.  Or perhaps we are seeing something Alito didn't mean to reveal, but it's better that he did.  The Court's reputation is sinking under the weight of the Court's own elevation of ideology over jurisprudence (the emphasis there on "prudence").  I could say that started with Scalia, who always relished being noticed and controversial in dissents (where it did less damage and he couldn't be held responsible for the consequences of his statements), but in the longer view it is the response to the Warren Court and the Civil Rights era of the '50's and '60's (Brown v. Board was 1954, not 1964).  Some of that reaction was inevitable, and shown through in the Rehnquist court especially.  But the Roberts court is determined to run wild with its authority, most of which is has accrued to itself.  Article 3 states: 

The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour....

And every Chief Justice has promulgated some kind of code of ethics for the high court; until Roberts, who after 20 years still hasn't managed the feat.  The Court has interpreted that language into lifetime appointments, and so, in this age of longer lifespans for certain classes (well off, not doing much manual labor) is keeping Justices on the Bench for several decades, instead of several years.  And with no oversight to speak of (the Congress has abdicated its role, by and large), the Court is watching itself.  The result, in part, is the corruption of Clarence Thomas: 

Even as that corruption becomes more and more public and apparent.

Alito's behavior since Dobbs (and arguably pre-Dobbs.  My own theory is he leaked that decision.  Who else would dare but a Justice?  And the opinion changed little from that draft to the published version.  Alito floated a trial balloon to show he meant what he was fixing to say.) has been more belligerent and aggressive.  I tend to think that's a sign of old age and loosening inhibitions ("what can they do to me?"  I know that feeling myself.).  But it could be ideological hardening of the intellectual arteries, too.  Whatever it is, the reputation of the Roberts court is suffering for it.  And it may not be long before the country is demanding the rulings of the Court be ignored, simply because they are so outrageous and so obviously founded on ideology rather than anything even arguably akin to jurisprudence, much less stare decisis and precedent.
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