In Defense of Clarence Thomas

(This piece was cross-posted at the HLPR blog, where I’ve been writing this semester, but I had long-ago intended it as part deux of the “In Defense of” series, which started with farm subsidies.)

I recently asked my Facebook network which Supreme Court justice, modern or historical, would they elect to partner with on a Constitutional Law final exam, assuming the justice had taken the class with them that semester. John Marshall, Oliver Wendell Holmes Jr., Robert Jackson, and William Brennan were predictable choices as powerful writers and influential molders of constitutional thought. Scalia, well-known for his bombastic style yet clear exposition of facts and law, was popular. Clarence Thomas received no votes. Perhaps it is to be expected that among the constellation of judicial stars, Thomas would pale in popularity–his legacy, after all, has yet to be defined. No doubt for others his judicial philosophy, hewing tightly to original intent and historical understanding, leaves progressive-minded comrades ill at ease. Yet if a motivating factor for unpopularity is Thomas’ silence at oral argument, I would ask my friends to reconsider.

Clarence Thomas joined the Supreme Court in October 1991. On February 22, 2006, Thomas posed a question during oral argument, and has stayed silent ever since. His silence has been the subject of much commentary and speculation, and perhaps inevitably, ridicule and accusations of un-intellectualism. This disparaging category of charges is unfair, and deserves some scrutiny.

In a piece on the fifth anniversary of Thomas’ silence, Adam Liptak of the New York Times quoted a law review article which opined: “If Justice Thomas holds a strong view of the law in a case, he should offer it . . . It is not enough that Justice Thomas merely attend oral argument if he does not participate in argument meaningfully.” One Huffington Post author, writing on important questions Thomas had asked, noted, “. . . Thomas’ silence has also left many casual observers — that is, ordinary American citizens — with the impression that the man either does not care about the cases or cannot intellectually compete with his colleagues.”

Could Mitt Romney Repeal Obamacare by Waiver?

Presidential candidate Mitt Romney has repeatedly stated during the presidential debates that he would “direct the Secretary [of Health and Human Services] … to grant a waiver from Obamacare to all 50 states” once elected. Walking back a bit from the statement in a post on the National Review blog and in an editorial in USA Today, Romney said that his executive order would “pav[e] the way” for Obamacare waivers, directing federal officials “to return the maximum possible authority to the states” and mentioning that such an order would be “the first step” in his health care plans.

Could Mitt Romney repeal Obamacare on day one with a waiver to all 50 states? Some of Mitt’s supporters have claimed that he can, pointing to the more than 1,000 waivers granted by the Obama administration since the law has passed. As noted by Washington Monthly blogger Rick Ungar, however, the waivers received by states, companies, and labor unions during the Obama administration are temporary waivers, which cannot extend beyond 2014. These temporary waivers are meant to help states get in compliance with the law gradually and prevent excessive rises in health insurance premiums. None of the waivers have applied to the most controversial component of Obama’s health care proposal, the individual mandate, which won’t become law until 2014 anyway.

The Patient Protection and Affordable Care Act (ACA) does include more extensive waivers of the act’s requirements (including the individual mandate), called “waivers for state innovation,” but the Secretary of Health and Human Services’ ability to grant those waivers is more clearly defined by the statute. The legal requirements for “state innovation” waivers are set out in Section 1332 of the ACA. A number of the requirements make a categorical waiver for all 50 states seem highly dubious:

• The statute requires states to apply for waivers, but goes even further than that, stipulating a number of requirements for state applications for waivers, including a “comprehensive description of the state legislation and program to implement a plan meeting the requirements for waiver,” a “10-year budget plan that is budget neutral for the Federal Government,” and extensive public notice-and-comment procedures before an application can even be submitted;
• The law states the Secretary of Health and Human Services may grant a waiver request “only if the Secretary determines” that the state plan will:
  1. provide coverage that is “at least as comprehensive” as the coverage in the ACA;
  2. provide coverage and cost sharing protections against “excessive out-of-pocket spending” that are at least as affordable as the coverage in the ACA;
  3. provide coverage to a “comparable number” of its residents as the provisions of the ACA; and
  4. not increase the federal deficit.
• The Secretary of Health and Human Services is required to monitor and evaluate state programs and report to Congress on them, to ensure that the requirements of the waiver process are being met;
• States may only apply for “state innovation waivers” starting on or after January 1, 2017, making it even less likely that President Romney would be able to issue such waivers at least until a hypothetical second term;
• The statute mandates that waivers expire after five years, so even a successful Romney waiver action would be unlikely to survive long after he was out of office.

It’s pretty easy to conclude, based on these provisions, that granting waivers to all 50 states on “day one” of a Romney presidency would be illegal. But the Obama administration, for its part, isn’t setting up a great precedent for such a contingency:

With a growing number of states rebelling against the No Child Left Behind law and stalled efforts in Congress to reform it, the Obama administration says it will grant waivers to liberate states from a law that it considers dysfunctional.

Representative John Kline (R-MN), chairman of the House Education and Workforce Committee, recently asked the Congressional Research Service about the legal authority for such waivers. The CRS responded with a memorandum outlining the legal issues involved with the Secretary of Education’s waiver authority under No Child Left Behind. Finding the Secretary’s authority to grant waivers under the language of the statute “very broad,” the memo finds that the Department of Education “appears to have the authority” to waive most of the provisions at issue in the Obama administration’s education proposals.

Could Romney’s waivers survive a legal challenge, or does the Secretary of Health and Human Services have similarly broad authority? Supporters of the Affordable Care Act can take some comfort in the stringent language of the statute, including its requirements that states provide health care coverage “at least as comprehensive” as that provided by the Act and that states must cover “at least a comparable number” of their residents as the Act would. Some of the legal analysis in the CRS memo may be instructive on this point:

The starting point in interpreting a statute is the language of the statute itself. The Supreme Court often recites the “plain meaning rule,” that, if the language of the statute is plain and unambiguous, it must be applied according to its terms. See, e.g., Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002)

If Romney’s Secretary of Health and Human Services granted waivers in a way that contradicted the “plain meaning” of the Affordable Care Act, as interpreted by the courts, it would likely be struck down. This would seem to be the case where, as Romney seems to propose, waivers would be granted to states that do not apply for waivers or states that do not even attempt to create a plan for covering their residents as specified in Section 1332.

The CRS memorandum also notes that “reviewing courts have cited the Administrative Procedure Act (APA) as affording judicial authority to invalidate waivers” that are found to be “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law.” While courts give deference to federal agencies in determining whether an agency’s action was arbitrary and capricious, the CRS points to a case where the 9th Circuit Court of Appeals struck down a statutory waiver granted by the Secretary of Health and Human Services under Section 1115 of the Social Security Act. Section 1115 allows states to apply for waivers from the statutory requirements of welfare programs to implement pilot programs that further their stated goals.

In 1992, California proposed a “work incentive” reform to its state welfare system, a precursor to the welfare reforms that would later become law throughout the United States, and applied for a waiver under Section 1115 from requirements of the Aid to Families with Dependent Children (AFDC) program. The Secretary of Health and Human Services granted the waiver, and a group of residents receiving benefits under the AFDC program challenged it. The 9th Circuit found the grant of the waiver “arbitrary and capricious” in violation of the APA, in that

the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. (quoting Motor Vehicle Mfr. Ass’n. v. State Farm Ins., 463 U.S. 29, 44 (1983))

In particular, the court found that the Secretary of Health and Human Services did not take into consideration evidence submitted by representatives of residents receiving benefits of the plan’s danger to those residents. If a Romney Secretary of Health and Human Services were to fail to consider evidence mounted against a waiver, or violate other requirements imposed by courts under the APA, it would likely face a challenge on such grounds. Issuing waivers “on day one” of a Romney presidency would almost surely “rel[y] on factors which Congress has not intended it to consider,” even if review under the APA tends to be deferential (evidenced by the paucity of cases cited in the CRS report where waiver decisions were invalidated).

That said, the greatest barrier to a challenge to waiver decisions may not be the legal merits, but whether or not any plaintiffs in opposition to such a waiver have standing to sue. In the California welfare case, the individuals who faced benefit cuts after the California waiver clearly met the requirements that plaintiffs show (1) an “injury-in-fact” and (2) “causation” of the injury. The only question about standing in that case was whether a victory for the plaintiffs, sending the waiver decision back to the Secretary of Health and Human Services to consider the evidence presented by the plaintiffs, would fulfill the third prong of standing, “redressability.” But a waiver from the provisions of the Affordable Care Act (or for that matter, the No Child Left Behind Act) would not have as clear an injured party as a welfare recipient facing a loss of benefits. Who, then, would have standing to challenge Romney waivers?

Constitutionality of the Individual Mandate, and Regulating “Economic Inactivity”.

A friend of mine had dinner last week with one of her friends who was in town for the American Conservative Union’s Conservative Political Action Conference (CPAC), and asked for some tips on talking to a hard-core conservative about health care reform, especially in light of two rulings from federal judges in VA and FL that invalidate ACA in part, or in toto. Instead of sending her a list of articles that I had read, I thought I’d summarize my impressions in a blog post. (Apologies if you’ve read all these arguments elsewhere, already.)

For many conservatives, the central problem with the Affordable Care Act is the “individual mandate”. Prof. Randy Barnett, of Georgetown Law, wrote early on in an op-ed in the Washington Post:

But the individual mandate extends the commerce clause’s power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company.

But, as many more qualified legal scholars have noted, Congress does not rely on the Commerce clause alone. The power to “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”, while broadly conceived in such cases as Wickard and Raich, is being used to regulate the insurance industry–to create health care exchanges, to prohibit discrimination against preexisting conditions, etc. The idea that in order to have insurance we must have everyone participate–the so-called “individual mandate”–is empowered by the Necessary and Proper clause.

The owner of this home was taxed for inactivity.

Universal participation in health insurance was deemed necessary by Congress for the effective operation of that scheme, that is, the risk pool will be insufficiently large, or the elimination of preexisting conditions limits would encourage selection bias. As Prof. Tribe points out in a recent op-ed, it was necessary to Scalia, concurring in Raich, when the federal government quashed even small, purely intrastate marijuana operations: “Our cases show that the regulation of intrastate activities may be necessary to and proper for the regulation of interstate commerce in two general circumstances.” In the landmark case McCulloch, Chief Justice John Marshall writes: “Take, for example, the power ‘to establish post-offices and post roads’ [an enumerated power of Congress]. This power is executed by the single act of making the establishment. But, from this has been inferred the power and duty of carrying the mail along the post-road, from one post-office to another. And, from this implied power, has again been inferred the right to punish those who steal letters from the post-office, or rob the mail.” So even though postal carriers were not mandated by the Constitution, and even though Congress is not supposed to deal with intrastate commerce, both of those things are necessary to the achievement of Congress’ constitutional ends. That is, Marshall explained, if “the end be legitimate,” then “all means which are appropriate, which are plainly adapted to that end… are constitutional.”

Of course, as many people have pointed out, the government is not creating a “mandate” in the sense that it will jail you for your “economic inactivity”. It is going to tax your income if you aren’t paying health insurance premiums. So the part of the Constitution that specifically relates to the individual mandate is in fact the General Welfare Clause, whereby “Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States…” And the decision on what constitutes “general welfare” is for the democratically-elected Congress to decide, not activist judges. Justice Cardozo wrote in Helvering v. Davis:

“The line must still be drawn between one welfare and another, between particular and general…There is a middle ground or certainly a penumbra in which discretion is at large. The discretion, however, is not confided to the courts. The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power is not an exercise of judgment. This is now familiar law.”

So far we’ve talked about whether the government can regulate your “economic inactivity”, I also wanted to give an example in which government clearly does regulate your “economic inactivity”.

One example is blight law. In Virginia, for example, if a property is vacant, or subject to many complaints, or is in a dilapidated condition or lacks normal maintenance or upkeep, it may be subject to a blight declaration:

After the owner is notified that the property is blighted if the property owner does not remove the blight or present an acceptable plan to cure the blight within a reasonable period of time, under powers granted under the Code of Virginia, the County can declare, by ordinance, any blighted property as a nuisance and then compel the abatement of the nuisance.

If the owner or owners fail to abate the nuisance, the County may do so and charge and collect the cost thereof from the owner of the property in any manner provided by law for the collection of state or local taxes.

In San Francisco:

But if the property is privately held, the DPW will have to determine the owner’s name and then contact that person about the applicable code violations. The owner will receive a notice from the city giving him or her 30 days to clean up and/or repair the property. If the owner does not respond or comply, the DPW may go there and do the work, billing the owner for the services or placing a lien against the property for repayment.

Mike Dorf pointed out that governments can also mandate positive actions in other arenas: jury duty, schooling your children (state gov.), Selective Service, and even vaccination. Jury duty, for example, is necessary if the federal government is to provide the juries alluded to in the Bill of Rights, in the course of prosecuting federal crimes. And for the originalists out there, as early as 1792, Congress passed a militia act (since repealed) that required citizens between 18 and 45 to “provide [themselves] with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder”.

In the blight example these are state laws, but they derive that power from the same type of police or taxation powers as the federal government, and philosophically the theory is the same. So it’s clear that “economic inactivity” is still “activity” in the sense that your inaction can effect commerce generally–an unwillingness to maintain your property can be a nuisance and eyesore for a community, an unwillingness to educate your kids creates dumb citizens, and an uninsured person will impact the health care system by going to emergency rooms when they do get sick, or relying on family and friends to support them when they get ill. A 2008 Kaiser study finds that “the uninsured will spend $30 billion out-of-pocket for health care in 2008 while receiving $56 billion in uncompensated care, three quarters of which will be from government sources.” It is equally clear that the government can, and currently does, regulate “inactivity”, the government can compel behavior, and at the very least, the government can tax.

How to End Don’t Ask Don’t Tell–Without Republican Cooperation.

In the UK, gays can both marry and serve in the military. This did not prevent them from fighting alongside Americans in Iraq and Afghanistan.

:: Edit 10/12/10 :: Judge Phillips issued a worldwide injunction on the enforcement of Don’t Ask Don’t Tell. “U.S. Department of Justice attorneys have 60 days to appeal. Legal experts say the department is under no legal obligation to do so and could let Phillips’ ruling stand.”

It comes as no surprise to me that the Senate failed to make any headway in abolishing ‘Don’t Ask, Don’t Tell‘ this week. Yesterday, a successful Republican filibuster foreclosed a vote on a bill that would include the conditional ending of DADT, pending a military study and approval by the military and the president. For one, this policy was created and perpetuated by Congress. Federal law, in this case the National Defense Authorization Act of 1993 and subsequent iterations, prohibit anyone who “demonstrate(s) a propensity or intent to engage in homosexual acts” from serving in the military because “it would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.” This is notwithstanding the fact that 22 out of 26 NATO countries allow gays to openly serve in the military, and we trusted those countries to support and back-up our troops in Iraq and Afghanistan.

Second, advancements in civil rights in this country have often come out of the judiciary before legislatures, and popular sentiment, followed. It was the courts, after all, that desegregated schools for African-American children. It was the courts that struck down anti-miscegenation laws (my favorite case) and laws that discriminated against women. We turn to the courts to protect our homes from illegal searches and seizures, and the courts to uphold a woman’s right to an abortion. The courts protect our freedom of speech and of the press. In the arena of gay rights, it was the courts that struck down sodomy laws. It is not a shock that the courts should have to take up the rainbow standard once more and end discrimination against gays in the military.

Earlier this month, federal judge Virginia Phillips of the U.S. District Court for the Central District of California ruled, in Log Cabin Republicans v. United States, that the Don’t Ask Don’t Tell policy is unconstitutional and violates the 1st and 5th amendments after applying an intermediate scrutiny standard. In the absence of Congress affirmatively repealing DADT, this case presents an interesting legal avenue for getting rid of it–the U.S. Government should decline to appeal this ruling.

The Wrongly Decided Injunction Against Embryonic Stem Cell Research Funding.

::Edit:: The injunction that was the subject of this post was reversed on appeal by the D.C. Circuit in Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011).

On Monday, a federal court issued an injunction against NIH funding of embryonic stem cell research. This decision has severe impacts on ongoing and proposed research projects. Although labs that received grants and their disbursements for embryonic stem cell research will be able to spend the money they’ve already gotten, new grant application review has ceased, and annual renewals of existing awards have also been suspended. Additionally, NIH is still figuring out whether “no cost extensions”, a common request to spend disbursed money beyond the proposed project years, will be allowed. This injuction should never have been granted.

In 1996, Congress passed the Balanced Budget Downpayment Act, which contained a rider, the Dickey-Wicker Amendment, which prohibited the use of federal money in projects involving the creation of embryos for research, or research in which a human embryo is destroyed or discarded. From then on, the Amendment was included in every major appropriations bill involving the Department of Health and Human Services, most recently in 2009.

SEC. 509. (a) None of the funds made available in this Act may be used for–

(1) the creation of a human embryo or embryos for research purposes; or

(2) research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death greater than that allowed for research on fetuses in utero under 45 CFR 46.208(a)(2) and Section 498(b) of the Public Health Service Act [1](42 U.S.C. 289g(b)) (Title 42, Section 289g(b), United States Code).

(b) For purposes of this section, the term “human embryo or embryos” includes any organism, not protected as a human subject under 45 CFR 46 (the Human Subject Protection regulations) . . . that is derived by fertilization, parthenogenesis, cloning, or any other means from one or more human gametes (sperm or egg) or human diploid cells (cells that have two sets of chromosomes, such as somatic cells).

HeLa cells have been maintained in culture since 1951.

Fortunately and unfortunately for scientists, Congress has a very limited understanding of scientific research. Embryonic stem cells are not taken from embryos each time an experiment is to be performed, just as cancer cells do not need to be freshly taken from a tumor every time they are studied in a lab. HeLa cells, for example, are the predominant cells used for study of human cell biology. The HeLa cells used in labs today around the world are all descended from a sample taken in 1951 from a patient with an aggressive cervical adenocarcinoma–Henrietta Lacks. Those cancer cells now constitute an immortal “cell line”, and can replicate indefinitely in vitro. Embryonic stem cells are similarly immortal. Once the original cell lines were established from embryos, no future embryos will be needed to replenish the stock of those cell lines. This was a loophole to the Amendment. Stem cell lines were created by private companies who destroyed embryos, but the researchers with government grants only used stock cell lines. It’s important to note that even after this loophole was established and basically continued as precedent, Congress took no steps to modify the language of their Amendment to remove this loophole. It’s also interesting to remember that even though HeLa cells were procured (basically stolen) from Henrietta Lacks in what would today be seen as a clearly unethical manner, no one argues that the use of HeLa cells (which is vitally important to biology research) should be discontinued as a sort of fruit of the poisonous tree.

In 2001, George W. Bush announced a policy of limited funding for stem cell research, in which embryonic stem cell lines created prior to 2001 could be funded. In 2009, Barack Obama lifted all limitations on embryonic stem cell research. The embryos used for creation of new cell lines would be sourced from only embryos created for in vitro fertilization reproductive purposes and were no longer needed, and were donated by individuals who gave voluntary written consent.

Like many interested parties, I do not believe this injunction should have been granted. As D.C. District Court Chief Judge Royce Lamberth writes in his opinion:

A preliminary injunction is “an extraordinary remedy that should be granted only when the party seeking the relief, by a clear showing, carries the burden of persuasion. Cobell v. Norton, 391 F.3d (251, 258 (D.C. Cir. 2004). A party carries this burden of persuasion by establishing: (1) that there is a substantial likelihood of success on the merits; (2) that the plaintiff would suffer irreparable injury absent an injunction; (3) that an injunction would not substantially injure other interested parties; and (4) that an injunction would further public interest.

The Court found that each of these weighed in favor of the plaintiff doctors. I want to skip 3 and 4 (because I think scientists and society have both clearly suffered from this injuction) and focus on 1 and 2.

I do not believe there was a substantial likelihood of success based on the merits. As quoted, the language of the Dickey-Wicker Amendment bans federal funding for projects involving “the creation of a human embryo or embryos for research purposes; or research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death.” As I stated above, most of the embryonic stem cells used in labs today have been derived from existing immortal cell lines created by other labs. There is simply not a need to destroy new embryos for the use of established cell lines, and so at a minimum an injunction should not apply to projects where there is no destruction of an embryo, simply the use of an old stem cell line, but only blocking the funding of new embryonic cell lines/destruction of new embryos. The embryonic stem cell lines approved by George Bush, for example, should continue to receive research funding. The Court writes that “ESC research is clearly research in which an embryo is destroyed. To conduct ESC research, ESCs must be derived from an embryo. The process of deriving ESCs from an embryo results in the destruction of the embryo. Thus, ESC research necessarily depends upon the destruction of a human embryo.” On the contrary, embryos had been destroyed and once depended on the destruction of a human embryo. It is entirely possible and most often the case that embryonic stem cell research may continue in which no human embryo is destroyed, by a private company or a federally funded actor.

Next we have the “irreparable injury absent an injunction.” The two plaintiffs in this case were Dr. James Sherley and Dr. Theresa Deisher. They are researchers of adult stem cells who claimed competitor standing; they were eligible to sue because the embryonic stem cell policy would “result in increased competition for limited federal funding.” To put it simply, I doubt these fine researchers will get NIH funding after this. Peer review of grant applications is already not only highly difficult to pass with many researchers struggling to receive funding–according to Science, “The NIH typically receives between 35,000 and 40,000 proposals a year, while the NSF gets roughly half that number. Only a quarter to a third of these proposals are ever funded”–but also highly political. The NIH review committee use five core review criteria: significance, investigators, innovation, approach, and environment. The reputation of the investigators plays a role in the grant review, as does it in peer review for scientific journals. Grant proposals must include a “Biosketch” with the CVs of the PI and other key personnel. I can’t think these plaintiffs helped their cases before the NIH review committee, especially when there is plausible deniability given the high rate of unapproved grant proposals, and given the past grant history of one of the plaintiffs, revealed below.

Interestingly, the plaintiffs had separate experiences in receiving NIH funding. I used the NIH RePORTER engine to search for historical grants given to these researchers (if you try this, make sure to expand the fiscal year search to all years, and uncheck the ‘active projects’ box). I’ve never really used this before, so I tested it by looking up the grant history of a professor I worked for at Columbia University, Dr. Darcy Kelley. She had multiple grants listed, all the way back from 1986, listed on the server; so it looks like RePoRTER gives both current and historic NIH grants. A search for Theresa Deisher, however, found no grants ever awarded. Dr. Theresa Deisher, who graduated with a PhD from Stanford in 1990, has never been awarded an NIH grant. Did she really suffer competitively from any embryonic stem cell funding? After two decades of futility, I don’t think this stunt will help her in her quest for NIH money. Side note: Deisher is clearly also in this for religious, and not personal financial, reasons. She’s been trying to establish a connection between abortion, vaccines, and autism with funding from a pro-life group. On the other side of things is Dr. Sherley, who despite hunger-striking after being denied tenure by MIT, has managed to assemble a steady stream of NIH grants since 1988, including a grant in 2010. Has he really suffered from embryonic stem cell funding after Bush’s 2001 policy, and Obama’s 2009 policy? I think standing should have been denied to these plaintiffs, one of whom couldn’t get a grant before competition from ESC  researchers, and one of whom got grants in spite of them. There is no evidence to show that their success or lack thereof in obtaining grants was changed in any way by Bush’s or Obama’s policies.

The U.S. Department of Justice will appeal this incorrect decision to the DC Circuit Court of Appeals, and regardless of how one feels ethically about the use of embryonic stem cells, I think the scientific fact and legal background makes the correct ruling quite clear. Hopefully there can be a speedy review and decision from the D.C. Circuit that will restore funding to embryonic stem cell researchers, and they can continue their important work in battling the diseases that plague humanity.

The Supreme Court and Baseball.

Justice Alito, Phillies phanatic.

As a baseball fan, I was pleased to read the NY Times’ article yesterday highlighting some of the current Supreme Court justices’ connections with the venerable American pastime–baseball. Nominee Elena Kagan is a New York Mets fan, while Bronx-bred Sotomayor is a New York Yankees fan. The article relates a fun story about Breyer (Red Sox fan) organizing a welcoming party for Samuel Alito (Phillies fan). As Alito remembers it, “He opened the door and the Phillie Phanatic came in and gave me a big hug. And it was great.” Aww.

A story about Justice Stevens’ early history with the game testified to the senior jurist’s advancing years. Jeffrey Toobin penned the tale in a tribute piece in The New Yorker earlier this year:

On a wall in Stevens’s chambers that is mostly covered with autographed photographs of Chicago sports heroes, from Ernie Banks to Michael Jordan, there is a box score from Game Three of the 1932 World Series, between the Yankees and the Cubs. When Babe Ruth came to bat in the fifth inning, at Wrigley Field, according to a much disputed baseball legend, he pointed to the center-field stands and then proceeded to hit a home run right to that spot. The event is known as “the called shot.”

“My dad took me to see the World Series, and we were sitting behind third base, not too far back,” Stevens, who was twelve years old at the time, told me. He recalled that the Cubs players had been hassling Ruth from the dugout earlier in the game. “Ruth did point to the center-field scoreboard,” Stevens said. “And he did hit the ball out of the park after he pointed with his bat. So it really happened.”

Stevens has a reverence for facts. He mentioned that he vividly recalled Ruth’s shot flying over the center-field scoreboard. But, at a recent conference, a man in the audience said that Ruth’s homer had landed right next to his grandfather, who was sitting far away from the scoreboard. “That makes me warn you that you should be careful about trusting the memory of elderly witnesses,” Stevens said. The box score was a gift from a friend; Stevens noticed that it listed the wrong pitchers for the game, so he crossed them out with a red pen, and wrote in the right names.

This meticulousness is evident in Stevens’s judicial writing.

There were a few stories that I was surprised the author did not touch on, however. In discussing the high frequency of baseball analogies in legal writing (by law-makers and law-appliers alike), the author failed to mention the pithy remark from John Roberts at his Senate confirmation hearings: “I will remember that it’s my job to call balls and strikes and not to pitch or bat.” It was a metaphor that not only sparked much commentary in the immediate aftermath, but extended into Sonia Sotomayor’s hearing, as this Gawker video compilation and this YouTube clip illustrate:

The other major relationship between the Supreme Court and Major League Baseball has been the latter’s preferential treatment at the gentle and accommodating hands of the former. Just this past week, the Supreme Court held in American Needle v. NFL, in a unanimous decision, that the NFL was not exempt from the Sherman Antitrust Act prohibiting anti-competitive cartel collusion. The NFL cannot decide as a group which single company would hold the license to manufacture merchandise for all NFL teams, and the decision may broadly impact a wide range of NFL policies–from TV rights, to marketing, and perhaps even free agency.

Baseball fans need not worry, however, because the Court has affirmed the MLB’s unique exemption from the Sherman Antitrust Act on three separate occasions. No other sports league is similarly exempted.

In one of a brilliant justice’s most flawed pieces of legal reasoning (second only, in my opinion, to this), Oliver Wendell Holmes wrote for a unanimous court in Federal Baseball Club v. National League (1922):

The business is giving exhibitions of base ball, which are purely state affairs. It is true that in order to attain for these exhibitions the great popularity that they have achieved, competitions must be arranged between clubs from different cities and States. But the fact that in order to give the exhibitions the Leagues must induce free persons to cross state lines and must arrange and pay for their doing so is not enough to change the character of the business. According to the distinction insisted upon in Hooper v. California, 155 U.S. 648, 655 , 15 S. Sup. Ct. 207, the transport is a mere incident, not the essential thing.

If future commerce clause decisions depended on Holmes’ reasoning, our nation would look far different today. Really? An organization dedicated to transporting groups of players from one city, to another city, and charging for tickets for their show is not involved in interstate commerce? According to Holmes, it wasn’t, and was thus shielded from federal antitrust meddling. Holmes’ tenuous legal ground was upheld in 1953 in Toolson v. New York Yankees, largely on the basis of deference to Congressional inaction to correct the problem. Yet when antitrust cases came up soon after in boxing and football, on nearly identical facts and transportation requirements, they received far different treatment.

In U.S. v. International Boxing Club, the Court could not bring itself to overrule Federal Baseball or Toolson, or to grant a similar exemption to boxing. Justice Milton wrote in a disbelieving dissent: “When boxers travel from State to State, carrying their shorts and fancy dressing robes in a ditty bag in order to participate in a boxing bout, which is wholly intrastate, it is now held by this Court that the boxing bout becomes interstate commerce.” In Radovich v. National Football League, a similar fate befell football. Justice Harlan wrote bitterly in dissent: “I am unable to distinguish football from baseball under the rationale of Federal Base Ball and Toolson, and can find no basis for attributing to Congress a purpose to put baseball in a class by itself…”

After generations of eminent scholars wrote in dissent against baseball’s monopoly on monopolistic behavior, the Supreme Court had a third swing at rectifying its error. But by 1972, it was too late. The aging slugger had signed too large of a contract to simply bench. The struggling pitcher had been given a no-demotion clause and just refused to leave. In Flood v. Kuhn, the Court revisited the question of baseball’s privileged position in sports. Harry Blackmun’s majority opinion read like a paean to a sport he clearly loved. Proceeding with a history of baseball’s formation (“It is a century and a quarter since the New York Nine defeated the Knickerbockers 23 to 1 on Hoboken’s Elysian Fields June 19, 1846…”), Blackmun decided to name… every single one of his favorite players and personalities:

Then there are the many names, celebrated for one reason or another, that have sparked the diamond and its environs and that have provided tinder for recaptured thrills, for reminiscence and comparisons, and for conversation and anticipation in-season and off-season: Ty Cobb, Babe Ruth, Tris Speaker, Walter Johnson, Henry Chadwick, Eddie Collins, Lou Gehrig, Grover Cleveland Alexander, Rogers Hornsby, Harry Hooper, Goose Goslin, Jackie Robinson, Honus Wagner, Joe McCarthy, John McGraw, Deacon Phillippe, Rube Marquard, Christy Mathewson, Tommy Leach, Big Ed Delahanty, Davy Jones, Germany Schaefer, King Kelly, Big Dan Brouthers, Wahoo Sam Crawford, Wee Willie Keeler, Big Ed Walsh, Jimmy Austin, Fred Snodgrass, Satchel Paige, Hugh Jennings, Fred Merkle, Iron Man McGinnity, Three-Finger Brown, Harry and Stan Coveleski, Connie Mack, Al Bridwell, Red Ruffing, Amos Rusie, Cy Young, Smokey Joe Wood, Chief Meyers, Chief Bender, Bill Klem, Hans Lobert, Johnny Evers, Joe Tinker, Roy Campanella, Miller Huggins, Rube Bressler, Dazzy Vance, Edd Roush, Bill Wambsganss, Clark Griffith, Branch Rickey, Frank Chance, Cap Anson, Nap Lajoie, Sad Sam Jones, Bob O’Farrell, Lefty O’Doul, Bobby Veach, Willie Kamm, Heinie Groh, Lloyd and Paul Waner, Stuffy McInnis, Charles Comiskey, Roger Bresnahan, Bill Dickey, Zack Wheat, George Sisler, Charlie Gehringer, Eppa Rixey, Harry Heilmann, Fred Clarke, Dizzy Dean, Hank Greenberg, Pie Traynor, Rube Waddell, Bill Terry, Carl Hubbell, Old Hoss Radbourne, Moe Berg, Rabbit Maranville, Jimmie Foxx, Lefty Grove. The list seems endless.

In discussing the petitioner, he reads like a fantasy baseball player, scouting for his next draft pick. “In those 12 seasons he compiled a batting average of .293. His best offensive season was 1967 when he achieved .335. He was .301 or better in six of the 12 St. Louis years. He participated in the 1964, 1967, and 1968 World Series. He played error less ball in the field in 1966, and once enjoyed 223 consecutive errorless games. Flood has received seven Golden Glove Awards. He was co-captain of his team from 1965-1969. He ranks among the 10 major league outfielders possessing the highest lifetime fielding averages.”

In reaching his decision, he finally vacated Holmes’ logic on interstate commerce–”Professional baseball is a business and it is engaged in interstate commerce.”–and was forced to rely on that old judicial crutch, stare decisis:

Even though others might regard this as “unrealistic, inconsistent, or illogical,” see Radovich, 352 U.S., at 452 , the aberration is an established one, and one that has been recognized not only in Federal Baseball and Toolson, but in Shubert, International Boxing, and Radovich, as well, a total of five consecutive cases in this Court. It is an aberration that has been with us now for half a century, one heretofore deemed fully entitled to the benefit of stare decisis, and one that has survived the Court’s expanding concept of interstate commerce. It rests on a recognition and an acceptance of baseball’s unique characteristics and needs.

The Supreme Court’s relationship with the sport of baseball is not merely a trivial matter for the sports fans to laugh over. It is an ongoing love affair that has lasted nearly a century, and shows no signs of abating. Our national pastime has also captured the hearts of our dear legislators in Congress, who have never managed to clarify the law once and for all, and even take advantage of the special protection to regulate, purify and perfect their beloved sport.

It seems, on the matter of baseball, our legal titans are incapable of fairly calling balls and strikes. And yet, as a Supreme Court junkie, and baseball devotee, I completely understand.

Richard Blumenthal and the Stolen Valor Act

On Monday, The New York Times published a shocking story on Richard Blumenthal, current Connecticut Attorney General, and frontrunner for the Democratic nomination for Chris Dodd’s Senate seat. On at least one occasion, Blumenthal suggested that he served in the Vietnam war.

“We have learned something important since the days that I served in Vietnam,” Mr. Blumenthal said to the group gathered in Norwalk in March 2008. “And you exemplify it. Whatever we think about the war, whatever we call it — Afghanistan or Iraq — we owe our military men and women unconditional support.”

In fact, Blumenthal obtained five deferments to avoid going to Vietnam, and as a member of the Marine Reserves never went abroad, instead conducting drills and performing community work in D.C. and New Haven. While the Times couldn’t find other examples of Mr. Blumenthal misrepresenting his service history, it did indict his campaign for failing to correct numerous mistakes in the press, with multiple news sources writing about his service in Vietnam. Politicians lying, even about their qualifications, is no new thing. But sometimes, lying can be illegal.

Unsurprisingly, some veterans are furious over this newest scandal involving military service exaggeration. Lies involving military service have become such an issue, particularly over Iraq and Afghanistan service, that Congress passed the Stolen Valor Act of 2005 (signed into law in 2006), which I first read a while ago as the subject of a constitutional/1st Amendment challenge in federal courts. According to this law:

Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item shall be fined under this title, imprisoned not more than six months, or both.

The Day Newspaper of New London reported on one Vietnam vet, “standing in front of the state Capitol Tuesday morning, waving a U.S. Marine Corps flag on a white plastic pole, holding a white dry-erase board on which he had written the following slogan: Prosecute Blumenthal Stolen Valor Act” However, even Rob Simmons, a three-term Congressman from Connecticut and Vietnam vet who voted for the law, who has called for Blumenthal to apologize publicly to Vietnam vets, has said the law probably wouldn’t cover it. “Simmons, who voted for the act while a member of the House of Representatives in 2005, said he did not believe it would apply to Blumenthal’s remarks, since the law is narrowly tailored to affect those who falsely claim medals or other awards won in combat.”

From watching HBO’s The Pacific (which everyone should watch, great show), and researching some of the real-life characters this weekend, I found out that the military actually grants medals across the board for service in a particular war. Bob Leckie, for example, got the Asiatic-Pacific Campaign Medal, along with everyone else who served in the Pacific Theater during WWII.

There is a corresponding medal for Vietnam service, the Vietnam Service Medal, that was, at least according to Wikipedia,  “awarded to all members of the United States Armed Forces serving in Vietnam and contiguous waters or airspace thereover.”

Does saying “I served in Vietnam” represent that you received the medal automatically given to all those who served in Vietnam, and thus open the door for prosecution?

Technically, I think it does represent medal-winning, insofar as one intends to communicate the logical implications of a statement. If you say that you played on the 2009 World Series Championship Yankees, you are representing you have a World Series ring. If you say that you graduated from Harvard, it’s reasonable and expected for listeners to assume you have an actual degree from Harvard. Being awarded a World Series ring, a degree, and a service medal are all necessary conditions of their respective accomplishments. Since all the service medal demonstrates is physical presence, as a member of the military, in Vietnam, I think Blumenthal enjoyed the same functional benefit from saying he “served in Vietnam” as if he had worn the Vietnam Service Medal.

This probably isn’t enough for a prosecution, based on the legislative intent of narrow-tailoring and what seems like a simple misstatement by Blumenthal, who was otherwise careful to suggest that he only served during the Vietnam period. Still, if a state Attorney General and Senate candidate were ever prosecuted (under a Justice Department controlled by his own party, no less), or even threatened with prosecution, for misrepresenting military service, it would go a long way toward publicizing the problem of and punishment for stolen valor.

It’s interesting to imagine what could have happened if Blumenthal had been asked by an audience member at one of these rallies, “where do you keep your service medal?” or “were you harassed on the streets by protesters when they saw your Vietnam Service Medal on your uniform?” Depending on the answers, a political gaffe could have turned into a federal crime.

edit::

This story from the Huffington Post on Orrin Hatch’s amendment to the Stolen Valor Act that would ban false claims of military service pretty much confirms that from a legislative point of view, Congress did not think a false claim of service was covered by the original law.

The Antibiotics Shortage and How to Solve It.

update (11/5/2010) :: The NYTimes published a good article about subsidizing antibiotic research: http://www.nytimes.com/2010/11/06/health/policy/06germ.html?ref=antibiotics

The U.S. Should Establish a No-Fault Antibiotic Injury Program.

Few inventions in the history of mankind have saved more lives than antibiotics. Antibiotics are compounds that can kill or inhibit (long enough for our immune systems to kill) microorganisms–bacteria, fungi, and protists. In 1928, Alexander Fleming discovered penicillin, a substance exuded from a humble fungus that would spawn the modern pharmaceutical industry and revolutionize our lives both in war and in peace. Manufactured in time for WWII, penicillin saved countless lives that, in previous wars, would have been lost to bacterial infection. Despite the ever-increasing deadliness of modern weapons, equally rapid innovations in medicine and pharmaceuticals, especially antibiotics, has steadily lowered the likelihood of death in war. In every American war since they started counting, more soldiers died due to disease (or accident) than on the battlefield. In the Civil War, 224,097 died of disease or accident compared to 140,414 battle deaths; in WWI, over half of the deaths were attributable to disease. WWII was the first war where more soldiers were killed by fellow man than by microorganism, with under 30% of deaths due to disease. In times of peace, antibiotics are used from the beginnings of our lives to the very end, everywhere from combating bacteria that kill women in childbirth, to fighting pneumonia that wracks our aged lungs. 

And yet these vital drugs that we daily take for granted, no longer fearing every minor scratch or major gash, are quickly running out.

The first problem is bacterial resistance. Over time, bacterial strains will naturally mutate and evolve, through natural selection, to become immune to once-effective antibiotics. This process is exacerbated when patients do not take their full course of antibiotics–feeling better, they decide to stop taking their medicine early, thus allowing the small amounts of bacteria still alive (the ones resistant to the medicine) to grow, restart the infection, and spread to other hosts. Sometimes antibiotics can be overprescribed (for example, in common cold cases), which gives bacteria exposure to the antiobiotic and starts the resistance clock. Bacteria can also get exposure through our use of antibiotics in agriculture–approximately 60% of antibiotic usage in the United States. Bacteria can exchange genes that confer resistance to antibiotics across strains, and even across species, through plasmid transfer. This enables bacterial strains to accumulate resistances, and leads to the development of multiple-drug resistant bacteria (MDRs). Bacteria could also increase their expression of resistance genes, for example, in increasing the amount of pumps that filter out the antibiotic. Microbiologist Kenneth Todar writes,

70 percent of the bacteria that cause infections in hospitals are resistant to at least one of the drugs most commonly used for treatment. Some organisms are resistant to all approved antibiotics and can only be treated with experimental and potentially toxic drugs. An alarming increase in resistance of bacteria that cause community acquired infections has also been documented, especially in the staphylococci and pneumococci (Streptococcus pneumoniae), which are prevalent causes of disease and mortality. In a recent study, 25% of bacterial pneumonia cases were shown to be resistant to penicillin, and an additional 25% of cases were resistant to more than one antibiotic.

A few famous examples of MDR bacteria include multiple-drug resistant tuberculosis (MDR TB), and Methicillin-resistant Staphylococcus aureus (MRSA). Drug-resistant TB requires treatment with more expensive and dangerous second-line TB drugs, and if the TB develops resistance to those second-line drugs as well, there are few good options for the third line. MDR TB is a serious public health problem in the developing world where the WHO is seeking to eradicate TB. Resistant staph infections are a pressing concern in the First World. In the United States, a Department of Health and Human Services study estimated 390,000 hospitalizations from MRSA cases in 2005, and researchers estimated 17,000-19,000 deaths were attributed to MRSA. It’s important to remember that despite antibiotics, infections remain the second-leading cause of death in the world, and this is a problem not limited to the Third World, but right in our backyards, in our local hospitals and community health clinics.

Despite the steadily decreasing supply of antibiotics, drug companies are not rushing out new antibiotics, nor do they have clinical trials already on track. For example, despite the resistance of gram-negative bacteria, a “study released about a year ago by the Infectious Diseases Society of America found no drugs in middle- or late-stage clinical trials directed specifically at Gram-negative organisms.”

Why are drug companies unexcited about inventing life-saving products? Antibiotics are less profitable than drugs like Lipitor and Viagra that are used to treat chronic conditions and that are chronically consumed; they are taken for short treatment courses, and doctors, cognizant of the resistance problem, are loathe to overprescribe them. Antibacterial resistance can render a drug obsolete, so drug companies must bear the risk of losing all profitability even before the life of the patent expires.

Due to the low profit margins of antibiotics, drug companies are particularly sensitive to profits that are lost from drug liability suits–the cost of hiring lawyers, and the risk of losing millions. These facts mirror, in fact, the conditions experienced by vaccine manufacturers in the 1980s. Vaccine manufacturers threatened to abandon the market because of the threat of lawsuits over vaccine-related injuries. Congress, fearing a vaccine shortage and public health crisis, passed the National Childhood Vaccine Injury Act of 1986, which shielded vaccine manufacturers from many tort claims, and established a Vaccine Court to adjudicate payment from a no-fault injury fund. Instead of suing a vaccine manufacturer and proving negligence, individuals would/must file a claim before the Vaccine Court (Court of Federal Claims) and merely demonstrate they were injured by the vaccine. If successful, they would be paid damages from the Vaccine Fund, which is funded from small surcharges on every vaccine purchase. This, apparently, assuaged the fears of vaccine manufacturers, and our nation’s (and the world’s) vaccine crisis passed. A similar system should be created for antibiotics, and perhaps it, alone, will be sufficient as well to encourage antibiotics research.

This system benefits not just drug companies, but plaintiffs as well. Under the vaccine injury program, for example, the legal fees for bringing a claim forward are reimbursed by the Vaccine Fund, not out of the plaintiff’s pocket, or out of the plaintiff’s damages check. Additionally, victims have a difficult time winning tort claims against large multinational corporations and their legions of lawyers. Companies have a huge incentive to resist and drag out even valid injury claims, for fear that one winning suit will become the seed for hundreds of others. As with medical malpractice suits, even if the odd plaintiff wins, the vast majority will lose and end up with nothing. With medical malpractice, the doctors “lose” as well because they have to spend so much money on lawyers/insurance. Analogously, drug companies lose when they are forced to spend money on lawyers despite the low profit margins of antibiotics. With an injury fund, the majority of legitimately injured claimants can receive compensation and funds for future medical care, and drug companies can keep their profits.

While shielding drug companies from liability goes against the sentiment in last year’s Wyeth v. Levine ruling, this plan is also beneficial from a regulatory point of view. If antibiotic suits are preempted, the safety judgments on antibiotics will be performed by FDA instead of state juries. Where juries see only the terrible, individual harms in front of them and may be careless in punishing drug companies (and disincentivizing their activities), FDA is in a better position to perform a holistic cost-benefit analysis of drug safety vs. drug accessibility. They see all those who would suffer if deprived of a drug, even a drug that carries dangerous risks. This concern is true of all drugs, but I think particularly true in cases of vaccines and antibiotics, where the public health concerns are tremendous.

Under this plan, the vast majority of legitimate injury victims will receive fair compensation, going through a claims court, without needing to attempt a long and painful tort process. This plan saves millions of lives, as antibiotic manufacturers, hopefully like vaccine manufacturers did in the 80s, will find a no-fault liability system sufficient to re-stimulate their investment in antibiotic research. Government subsidy of pharmaceutical research in antibiotics, and increased government grants for university development of antibiotics could also go a long way toward restoring the healthy profitability and incentive for antibiotic research, and this tort scheme would only serve to supplement any additional incentives the government could enact. These life-saving drugs could perhaps become even cheaper as drug companies no longer need to create legal war chests in case of tort suits, or no longer need to front the whole sum of R&D costs, increasing the availability of these drugs in the Third World, and saving millions more lives abroad.

In these times of corporate repugnance, it seems distasteful to erect yet another shield for large businesses to protect themselves from judgment at the hands of the people, before twelve angry men. Yet the alternative, a shortage of novel antibiotics to combat newly-mutated bacterial strains, is far more perilous to the public health.

Viacom’s shenanigans on YouTube.

If true, this is pretty damning:

For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately “roughed up” the videos to make them look stolen or leaked. It opened YouTube accounts using phony email addresses. It even sent employees to Kinko’s to upload clips from computers that couldn’t be traced to Viacom. And in an effort to promote its own shows, as a matter of company policy Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users. Executives as high up as the president of Comedy Central and the head of MTV Networks felt “very strongly” that clips from shows like The Daily Show and The Colbert Report should remain on YouTube.

Viacom’s efforts to disguise its promotional use of YouTube worked so well that even its own employees could not keep track of everything it was posting or leaving up on the site. As a result, on countless occasions Viacom demanded the removal of clips that it had uploaded to YouTube, only to return later to sheepishly ask for their reinstatement. In fact, some of the very clips that Viacom is suing us over were actually uploaded by Viacom itself…

…Viacom’s brief misconstrues isolated lines from a handful of emails produced in this case to try to show that YouTube was founded with bad intentions, and asks the judge to believe that, even though Viacom tried repeatedly to buy YouTube, YouTube is like Napster or Grokster…

–Zahavah Levine, YouTube Chief Counsel

(HT@ EmilyLu)

A brief history of Supreme Court battles with the President.

I’ve had a conscious skepticism of Jeffrey Rosen’s facts and opinions ever since his shockingly poorly-researched Sonia Sotomayor hitjob last summer that was roundly criticized and described as “a model of shoddy, irresponsible, and (ironically enough) intellectually shallow ‘journalism.’”

His most recent article in The New Republic does nothing to change my mind. He discusses an apparent “battle” between Obama and the Supreme Court of the United States (SCOTUS) after his public criticism of their Citizens United decision during the State of the Union–the remark Justice Alito grimaced at. In his article POTUS v. SCOTUS, Rosen writes:

That is, Roberts seems to have joined the battle with Obama because he thinks the Court can win it.

As a matter of history, this argument is wrong: In battles between a popular president and an anti-majoritarian Court, it’s almost always the president who prevails. Using the Court as a punching bag puts Obama in the company of his greatest predecessors, Jefferson, Lincoln, and both Roosevelts–all of whom bashed the Court for thwarting the will of the people. As long as he plays his cards carefully, Obama has much to gain from challenging John Roberts, and the Roberts Court has much to lose.

“It’s almost always the president who prevails.” Really? Let’s see if this is true, taking Rosen’s own examples. I won’t even get into Jackson after Worcester v. Georgia, or Truman during Youngstown v. Sawyer…

Jefferson v. Chase/Marshall

In 1804, Thomas Jefferson was re-elected to the presidency by a huge landslide, capturing 162 out of 176 electoral votes. His party, the Democratic Republicans, controlled Congress with 73 of 105 House members and 25 of of 34 Senators. One month after Marbury v. Madison was announced–the case that famously established the Supreme Court’s supreme power of judicial review, allowing the Court to declare unconstitutional and invalidate Congressional legislation–Jefferson had his party impeach a[n admittedly alcoholic and senile] Federalist circuit court judge named Pickering. One month after Pickering’s successful conviction, and just over one year after Marbury was decided, Jefferson turned to target Supreme Court Justice Samuel Chase; the motion to send the articles of impeachment to the Senate garnered every Republican vote in the House, and would require only two-thirds of the Senate to convict–23 votes. Many thought impeachment and conviction were certain, and that Chief Justice John Marshall would be next, a man Republicans reviled as the “subtly calculating enemy of the people”; Marshall himself loathed Jefferson as well, and had written that Jefferson’s election would “sap the fundamental principles of the government.”

Rosen writes:

Marshall was so spooked by the Chase impeachment that he anxiously suggested in a letter to Chase that Congress should be allowed to reverse Supreme Court decisions it considered “unsound.” And he fell over himself to accommodate Chase’s accusers when called to testify at the impeachment. Marshall had diffused the crisis, and Chase was acquitted. There was, however, no doubt that Jefferson had accomplished his mission: Marshall acknowledged that he never fought battles that he knew he couldn’t win.

So according to Rosen, Marshall accommodated Chase’s accusers… and Chase was acquitted? And Jefferson won, because of that? Something about this narrative doesn’t make sense.

It’s true that Marshall was spooked. He wrote in a letter to Chase, as Rosen referenced, “I think the modern doctrine of impeachment should yield to an appellate jurisdiction in the legislature. A reversal of those legal opinions deemed unsound by the legislature would certainly better comport with the mildness of our character than the removal of the Judge who has rendered them unknowing of his fault.” Yet despite Marshall’s fears, we still have judicial review today, and Congress does not have appellate jurisdiction, precisely because Jefferson did not accomplish his mission. With foreign ambassadors from European monarchies in the galleries, curious to see how our new nation, an experiment in democracy, would respond to the beginnings of judicial independence, Chase’s lawyers gave impassioned speeches appealing to the Senators’ pity for an “aged patriot” who was being “hunted from place to place, to find indiscretions, which may be exaggerated into crimes.” They also appealed to the principles of the Senators who were aware that their own body–elected by state legislatures and representing state units, not population size–was designed to protect the minority from a tyranny of the majority. Even Aaron Burr, the scoundrel from New York, recognized the gravity of the moment, and as his last political act presided over the trial of Salmon Chase with such impartiality that Federalist said “I could almost forgive Burr for any less crime than the blood of Hamilton.”

The first Republican vote on the first article of impeachment, from Senator Stephen Bradley of Vermont, set the tone for the rest of the trial: “nay.” Ten other Republicans joined him against conviction, Samuel Chase was found not guilty on the rest of the articles, and the judiciary was saved. Perhaps some, and maybe Rosen, might argue that this trial alone was sufficient to accomplish Jefferson’s intention of silencing the partisan speeches from SCOTUS Justices, but I would say, considering the primary consensus-thought goal of reversing judicial review, that Jefferson failed in his confrontation. And John Marshall would be free to continue to guide his court’s Federalist decisions that cemented the Court as the ultimate oracle of the Constitution and expanded federal power in landmark cases such as Cohens v. Virginia, Gibbons v. Ogden, McCulloch, Dartmouth College, Martin v. Hunter’s Lessee, etc.

SCOTUS 1. POTUS 0.

Lincoln and Teddy Roosevelt v. SCOTUS

As a loyal classical Republican, I can’t criticize Lincoln, especially when he was against the worst court in U.S. history–the Taney Court. Rosen acknowledges that while Lincoln catapulted to the presidency by rightly denouncing the Dred Scott decision, he refused to bow to extreme members of his party and pack the court or abolish the Taney court entirely. While it’s true that he shoved a suspension of habeas corpus down the throats of the Court and the nation, it’s hard to say that was Lincoln’s proudest moment. He was a great president, the best president, but his suspension of the writ of habeas corpus will never be hailed as one of his great achievements, merely something to be tolerated in a time of national peril. I should note that constitutionally, the writ of habeas corpus may be suspended in times of rebellion, which the Civil War probably qualified as, and I think the real question was in regards to the procedure, and whether the executive could do it unilaterally. Lincoln was successful in getting what he wanted despite the objections of the Taney Court, but history doesn’t show a clear “moral victory” for Lincoln on this issue. I’ll call this even. +0.5 SCOTUS. +0.5 POTUS.

I know very little about Theodore Roosevelt’s problem with the Supreme Court, but I don’t need to. I imagine they have to deal with the Lochner era’s famously bad decisions striking down labor protections and working conditions protections. Instead, I’ll quote Jeffrey Rosen:

As president, Theodore Roosevelt called the Court “a menace to the welfare of the nation,” when it challenged his economic reform agenda. But, as a presidential candidate in 1912, he went beyond rhetorical fusillades and, in a progressive fury, proposed the popular recall of judicial decisions through referenda. He also argued for other state and federal laws that would allow voters to repudiate Supreme Court decisions that challenged the people’s ability to be “the ultimate makers of their own Constitution.” Only Colorado adopted proposals along these lines. And, of course, Roosevelt’s Bull Moose candidacy went down in defeat.

Still, history judges the Lochner court to be in the wrong. +0.5 SCOTUS. +0.5 POTUS.

SCOTUS 2. POTUS 1.

Franklin Roosevelt v. SCOTUS

The last example is FDR’s famous campaign to pack the Supreme Court after it invalidated several of his New Deal schemes, including the National Industrial Recovery Act, the Recovery Act, and the Agricultural Adjustment Act, on the basis of their according too much legislative power to the majority. 9th Circuit Judge Richard Posner takes a somewhat sympathetic view to Roosevelt’s frustration. In his The New Republic article on Roosevelt’s court-packing scheme, he writes: “Given the potential for political instability and social unrest if the entire New Deal program was killed, Roosevelt was right to strike at the Court, especially as he had a more sensible conception of the Constitution than that of the conservative justices then…” The Court stood in opposition was composed of “three factions: a liberal faction of Brandeis, Cardozo, and Stone; an extreme conservative faction of Butler, McReynolds, Sutherland, and Van Devanter; and a moderately conservative faction of Hughes (the chief justice) and Roberts.” Roosevelt’s plan would have raised the maximum size of the court to 15 justices, and would have shifted the court from the 6-3 conservative majority to a 9-6 liberal majority in the worst case scenario, and up to a 14-1 liberal supermajority if all of the septuagenarians retired.

Both Rosen and Posner attribute the court packing plan’s defeat to the Court’s capitulation to New Deal legislation. Posner writes, “What finally killed the plan was an unbroken string of surprising victories for the New Deal in the Supreme Court–twelve in all, with no defeats–while the Court-packing plan was being debated, coupled with the sudden retirement of Justice Van Devanter, one of the four extreme conservatives (who accelerated his retirement in order to help defeat the plan), and topped off by the sudden death of Senate Majority Leader Joseph Robinson.” This is echoed by Rosen: “But, although his Court-packing plan failed in the Senate, it may have cowed the Court into upholding the New Deal. Legal historians, such as Barry Friedman of New York University, persuasively contend that, if the swing justice on the Hughes Court, Owen Roberts, hadn’t changed his mind about the New Deal, Roosevelt would have prevailed in mobilizing public support for disciplining the justices.”

The Court may have been, as John Marshall was, scared into falling in line (or maybe they did it purposely to cleverly scuttle Roosevelt’s plan), but Roosevelt’s court-packing scheme was doomed from the start. Roosevelt did not consult Congress when he summoned his party’s leaders to the White House and presented his plan, and it was the straw that broke the camel’s back–Congress’ frustration at this arrogant and authoritarian president’s excesses finally boiled over. Vice President Garner expressed his sentiments on the bill to his former colleagues in Congress by holding his nose with one hand, while making a Roman thumbs-down gesture with the other: kill the bill. Hatton Sumners, chairman of the House Judiciary Committee, remarked to his fellow Congressmen on the way back to the Capitol, “Boys, here’s where I cash in my chips.” He then “refused to endorse the bill, actively chopping it up within his committee in order to block the bill’s chief effect of Supreme Court expansion.” Sumner’s refusal to let the measure pass through his committee ensured that the House could not hear it first, and that it would have to first be considered by the Senate, preventing Roosevelt from enticing Representatives, who had to be reelected every two years, with his coattails, or coercing them with his bully pulpit.

Despite Roosevelt’s speeches and fireside chat campaign denouncing the judiciary as undemocratic, the Senate effectively slowed and chilled, as it was designed to do. The chairman of the Senate Judiciary Committee, Senator Ashburn of Arizona, promised to allow unlimited debate and ensured that the hearings would last more than two months. The time also gave senators the opportunity to stump and tour the country. Robert Caro wrote, “Their speeches were reported in depth in newspapers, and heard on the radio; the airwaves were filled each night with the oratory of both sides in a remarkable public debate. And as America heard the arguments, America’s initial enthusiasm for the President’s proposal began to diminish.” Senators also began to change their minds. Joseph O’Mahoney, who depended on FDR’s allies for political patronage and whose state depended on New Deal pork, switched sides to join the senators opposing the bill.

It is also not clear that Roosevelt even had public opinion firmly on his side. Gregory Caldeira writes on polls taken during the period, concluding that:

“Over the entire period, support averaged about 39%. Opposition to Court packing ranged from a low of 41% on 24 March [1937] to a high of 49% on 3 March. On average, about 46% of each sample indicated opposition to President Roosevelt’s proposed legislation. And it is clear that, after a surge from an early push by FDR, the public support for restructuring the Court rapidly melted.”

Caldeira also shows that the Court was instrumental, through its decisions, in changing public opinion, and he suggests that the Court did so intentionally and on its own terms to defeat court-packing and save the judiciary, and not that it was forced or strategically manipulated into doing so by FDR. FDR certainly still pushed for court-packing after the Court started approving New Deal bills, and his end goal was an increase in executive power, not just a few pieces of legislation (he didn’t, after all, give up on court-packing after the court started approving his legislation). I should also note that public opinion is somewhat irrelevant to the passing of the bill since the ultimate decision rested with Congressional opposition, specifically in the Senate, but still relevant to FDR’s final “moral victory” tally.

With the death of Senate Majority Leader Robinson (to whom had been promised the first opening on the Court), court-packing was finished. The Senate voted 70–20 to send the judicial-reform measure back to committee, where the controversial language was stripped, and when they realized that the Court would be safe, the Senate floor resounded with cheers. Though some scholars, including the late Chief Justice William Rehnquist, noted that Roosevelt lost the battle but won the war, both because his New Deal legislation eventually passed, and because he ended up appointing eight justices thanks to his long tenure as President, I don’t think his choice to battle the Court was necessarily a wise one (and certainly didn’t cause him to win control of the court through his normal appointments). For one, it sapped his popular opinion. For another, it had unified Republicans in Congress with Democrats uneasy with Roosevelt’s sweeping powers and demands. The court-packing loss represented a change in Roosevelt’s presidency and ended the custom of rubber-stamping every one of Roosevelt’s New Deal bills. This new, powerful conservative Republican-Democrat coalition rejected a package of Roosevelt’s “must” bills in November 1937 and “During the remaining seven years of Roosevelt’s Administration,” writes Caro, “Congress blocked every major new domestic law he proposed.” In 1938′s elections, Roosevelt attempted to oust three conservative Senate Democrats (George of Georgia, Tydings of Maryland, and Smith of S.C.), members of his own party, even traveling to their home states to campaign against them, and still failed on all three counts.

Roosevelt’s efforts to pack the court backfired and cost him politically. The fact that the Court liberalized afterward could be attributed to the natural retirements, and the liberalization during the court-packing debates may even have been designed by Justices to thwart Roosevelt’s campaign to forever change the courts. He lost by creating a political coalition he could not overcome. And he lost in the eyes of history: few citizens today would look favorably upon his efforts to pack the Court, and no one remembers what grave offenses the Court committed (striking down bad economic legislation that slowed recovery?) to justify Roosevelt’s abuses on the third branch of government. His enduring legacy is positive, like Lincoln’s and Jefferson’s, in spite of his assault on the Court, not because of it. And now, just as Jefferson’s failure to impeach Chase set high the bar for impeaching federal judges, Roosevelt’s failure to pack the courts will ensure no future president will have an easy time doing it either. +1 SCOTUS. +0.5 POTUS (to be generous, since the we now accept Roosevelt’s interpretation of the commerce clause).

SCOTUS 3. POTUS 1.5.

SCOTUS wins. I’m not saying that Citizens United was a great decision, and I’ve written critically of the policy implications. And I’m also not saying that Barack Obama can’t disagree with the decision, and try to circumvent it through clever statutory regulation. But Rosen’s central thesis that Obama will certainly win in a battle against the Court (whatever that battle would be, if it in fact exists) because history said so is completely untrue, disproven by his own examples. History does not fondly remember presidential policies bullying the Court because the Court represents, for all of its mortal flaws, the U.S. Constitution. Do us a favor, Obama. If you want to mitigate the potential negative impacts of Citizens United, pass a new law without pissing on the Court, and your legacy.

(Hat Tip: Much of the history I got from Robert Caro’s excellent biography of LBJ, Master of the Senate. I also cited liberally from Wikipedia articles, which I linked to. Also, thank you to all of you who are still reading this.)