Paul Clement: A Walking Oral Argument Textbook

I was recently listening to one of my favorite SCOTUS oral arguments, a sentence for which I should not be judged.  It’s a relatively unimportant case in the grand scheme of things (except to workers at, but it encapsulates the brilliance of SCOTUS’s current top-dog advocate.  Paul Clement, a partner at Kirkland & Ellis, is essentially the Tenth Justice at this point—a conservative uber-litigator, former Solicitor General for the Bush administration, and generalized appellate wizard.  His arguments are legendarily crisp and effective, and his briefs read like an aged scotch.

His oral argument in Integrity Staffing Solutions, Inc. v. Busk showcases some of the qualities that make him great.  The oral argument is available here ( and the transcript is available here (

Here are five of the skills that Clement demonstrates and that every advocate should try to emulate:

  1. Clement knows the universe of applicable law exceptionally well.

In this exchange with Justice Ginsburg, he deploys a fact from a dissent written in 1945.  In so doing, he makes his argument stronger and offers an anchoring point—if the Supreme Court did not object to a waiting time of over an hour in that 1945 case, it should not now object to a lesser time that Amazon’s employees face.  You can’t fake knowledge of the relevant case law this way.  You either know it or you don’t.


  1. He combines knowledge with quick thinking, and he’s therefore able to accept help.

Not only does Clement know the law, he’s fluid enough to interweave it effortlessly into exchanges with the Justices.  Here, Justice Scalia is clearly on Clement’s side.  But rather than just idly agreeing with Justice Scalia, he takes Scalia’s hypo and anchors it back into existing law.


In so doing, he strengthens the point that Scalia is making—and thus his own argument.  Again, none of it would be possible if Clement didn’t know the law so well (and think so quickly).

  1. He respectfully asserts himself.

Clement never takes a hostile tone with the Justices (unlike some veteran advocates), but he will cut off a bad line of questioning where he can.  Here, he redirects Justice Sotomayor before she can pull him to a point he doesn’t want to address.


In the audio, this exchange isn’t disrespectful, just assertive.  And he ultimately manages to defang her argument before she can even make it.

  1. He redirects attempted framing.

This is one of the most important skills Clement demonstrates.  He refuses to let hostile Justices force him to accept their fundamental “frame” of a case.  By that, I mean he religiously pushes back when Justices try to put burdens on Clement’s client that Clement doesn’t think that client bears.  He also prevents Justices from ignoring the full procedural posture of the case.  Here, Justice Breyer tries to subtly flip a burden on Clement, but he rejects it.  Under the Portal to Portal Act, employees aren’t paid for activities they do after work (“postliminary activities”) unless those activities are integral and indispensable to their job.  In this exchange, Breyer focuses on making Clement’s definition of “postliminary” seem absurdly broad, until Clement points out that most postliminary work is supposed to be uncompensated unless it’s a principal activity.  Difficulties of employment law aside, the point is this:  Breyer tries to make it seem like Clement’s definition of a term is too broad, and Clement reminds him that the definition is supposed to be broad, and exceptions to his definition are just that—exceptions.  In so doing, he takes back the high ground and puts the argument back in a frame where he can win.


  1. He’s funny but understated.

Oral advocates don’t have to be funny to be effective.  Indeed, it is far better to make no jokes than to make a joke that falls flat or offends the bench.  But an advocate who can deploy respectful, subtle humor is the best of all worlds.  In this exchange, Clement uses humor and good-naturedly embraces his role as an advocate (and his desire to win).  This is an especially amusing moment because Clement clerked for Justice Scalia, so it very much represents good-natured ribbing between a mentor and a protégé.


Clement and his talented team do many things correctly besides these five.  But you’ll rarely see a tour de force that appears more routine than this.  And as for the result?  Clement and his team won the case.  9-0.


Note:  I apologize for the long layoff in posting.  I have been working on a long-term project that I will hopefully be able to share soon.

Paul Clement: A Walking Oral Argument Textbook

Mechanism Change and Judicial Capital

This post proposes a criterion for evaluating Supreme Court nominees besides their ideology and judicial methodology.  I argue that there are three types of changes that occur in jurisprudence, and that the often-overlooked middle type of change reveals as much about justices as either of the others.  Justices’ willingness to deploy the middle type of change should weigh as heavily on their selection as do conventional factors.

I.  Types of Change

Three basic types of change occur at the Supreme Court.   I term the first (and most granular) type of change “outcome/application” change.  These are the most nuts-and-bolts doctrinal shifts – the application of an existing doctrine to a new set of facts, or the altering of an outcome.  For example, the Batson doctrine – that litigants may not peremptorily strike jurors for certain reasons – originally only applied to racial strikes.  Then, the Court expanded Batson to encompass gender-based strikes.  This is an outcome-applicational change:  the application of an existing doctrine to new facts.  Even a reversal of an existing precedent constitutes basic outcome/application change if it simply reapplies the same doctrine and reaches a contrary result.

I term the third (and most global) type methodology change, and it has been discussed ad nauseam.  Methodology change encompasses debates about originalism, textualism, living documents, and the like.  It is the question of how we approach the problems writ large.  Largely due to the work of the Federalist Society in purposefully norming originalism and textualism, we have grown used to debates about methodology change.  They no longer affect the legitimacy of the Court, because they have become the accepted battleground for prospectively discussing judicial outcomes with potential nominees.

I term the second type of change mechanism change, and how judges manage it is an under-discussed component of their judicial philosophy.  Mechanism change is a candidate’s willingness to subvert or replace existing doctrinal pathways for arriving at outcomes.  A mechanism change occurs when the Court generates a new doctrine to address a new problem, or even more significantly, generates a new doctrine to replace an existing doctrine already addressing that problem.

II.  Mechanism Change and the Court’s Legitimacy/Capital

Justices do not usually debate mechanism change and its implications openly; or at least, those discussions are couched in seemingly technical, doctrinal terms.  But the current justices (as well as the late Justice Scalia) have divided themselves among those who are willing to frequently burn the Court’s capital to generate desirable mechanism change, and those who seemingly believe that mechanism change is a poor use of the Court’s capital.

As Georgetown Law’s Professor Cole has noted, the Supreme Court’s “power depends almost entirely on its public legitimacy.”  I believe that mechanism change takes an outsize toll on the Court’s legitimacy among educated observers of the Court:  as a practitioner, it is more disconcerting to see a brand-new test cut from whole cloth to replace an existing test than it is to simply see a result reversed.  It is not a coincidence that two of the all-time mechanism-change justices – Kennedy and O’Connor – perpetually vex district-court clerks.  Given these real costs associated with mechanism change, justices’ decisions about when to expend the Court’s legitimacy to promote mechanism change accordingly reveals a great deal about their priorities and their perception of how much legitimacy the Court has in its reserves.

These decisions do not break down among partisan lines.  The three justices I identify as most eager to deploy Court capital to effect mechanism change – Justices Kennedy, Thomas, and Sotomayor – are not united by partisanship or ideology (far from it).  Justices that seem most reticent to do the same – Roberts, Scalia, Ginsburg, and Kagan – are likewise far afield.

You can see these debates play out over decades.  Justice Kennedy and Justice Scalia sparred in the gay rights troika (Lawrence v. TexasUnited States v. Windsor, and Obergefell v. Hodges) over Justice Kennedy’s mechanism changes.  Justice Kennedy, in Lawrence, invoked the “liberty of the person both in its spatial and in its more transcendent dimensions,” not previously an articulated factor in judicial abolishment of a statute.  Lawrence, 539 U.S. at 562.  His Lawrence opinion generated an entire new doctrine, a constitutional polyglot drawing from equal protection, due process, and anti-stigma rationales.  Id. at 575.  This is fundamental mechanism change; Justice Kennedy was generating an entire new doctrine to address the problems of anti-homosexual discrimination.  Justice Scalia called him out on this mechanism-change deployment of the Court’s legitimacy; from the start of his dissent, he excoriated the majority for using existing strict scrutiny mechanisms that had governed fundamental rights for decades.  Lawrence, 539 U.S. at 586 (Scalia, J., dissenting).  He accused the Court of using an “unheard-of form of rational-basis review that will have far-reaching implications beyond this case.”  Id.

In Windsor, Justice Kennedy expanded on this rationale, reintroducing the concept of “animus” as a fourth ingredient in his home-brew constitutionalism.  Windsor, slip op. at *20; cf. Romer v. Evans, 517 U.S. 620, 632 (1996).  Scalia again took him to task.  Although some of Scalia’s umbrage was likely due to his personal antagonism to homosexuality, he seemed more incensed that Justice Kennedy had invoked a mechanism change to reach a result that is easily reachable through traditional pathways.  See Windsor v. United States, 699 F.3d 169 (2d Cir. 2012) (reaching same result through existing intermediate-scrutiny pathway).

Justice Thomas likewise favors mechanism change.  He gives stare decisis no real consideration, see, e.g., Goldstein, and he believes that the Court should consistently use its capital to perfect its mechanisms.  His clearest articulation of this tendency is his concurrence in McDonald v. Chicago, where he argued that all personal-rights incorporation should occur through the Privileges and Immunities Clause, and not through substantive due process – despite substantive due process being the preferred mechanism for decades.  McDonald, at *5, 8-9  (Thomas, J., concurring).  This drew fire from even his conservative allies – Justice Alito wrote for the Court that “[f]or many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the SlaughterHouse holding.”  McDonald, at *10.  Justice Scalia was even more blunt in oral argument, taking to task the petitioner’s attorney when he attempted to travel the Privileges and Immunities path:

JUSTICE SCALIA: And if the answer is no, why are you asking us to overrule 150, 140 years of prior law, when — when you can reach your result under substantive due — I mean, you know, unless you’re bucking for a — a place on some law school faculty — (Laughter.)

GURA: No. No. I have left law school some time ago, and this is not an attempt to — to return.

JUSTICE SCALIA: Well, I mean, what you argue is the darling of the professoriate, for sure, but it’s also contrary to 140 years of our jurisprudence. Why do you want to undertake that burden instead of just arguing substantive due process? Which, as much as I think it’s wrong, I have — even I have acquiesced in it. (Laughter.)

Justice Sotomayor also seems willing to effect mechanism change when she needs to, although as I explored in a prior post, her mechanism changes are slightly subtler and generally occur in the shadow docket.

On the other side, justices both conservative and liberal attempt to preserve the Court’s resources and to not use them on mechanism change.  Justice Ginsburg opposed the motivated, largely unprecedented reasoning that Justice Blackmun employed in Roe v. Wade, wishing instead that the case had been decided on a simple (and established) equal protection rubric.  See Chicago Law Critique; see also Washington Post.  Other scholars have pointedly acknowledged that such a footing would give the abortion right greater “constitutional legitimacy.  Equality Arguments for Abortion Rights, UCLA L. Rev.

Justice Kagan has likewise shown a reticence to alter judicial mechanisms without exceptionally good cause, noting that the Court should avoid “upset[ting] expectations.”  Kimble v. Marvel, at *10.  And the Chief Justice has long pushed for “narrow decisions endorsed by large majorities,” , which while not exactly the same as avoiding mechanism change, is correlated to the goal.

To sum it up – there is no apparent correlation between ideology and willingness to push for mechanism change.  But it’s nevertheless a serious component of a judge’s philosophy.

III.  Evaluating Nominees

Presidents – liberal or conservative – should evaluate their nominees on this mechanism-change criterion, although such evaluation will be difficult for faithful lower-court judges.  If nothing else, those judges’ scholarly writing may shed some insight into whether they are eager to change legal mechanisms and create new pathways to resolving cases.  Importantly, this factor can be analyzed independent of judicial philosophy or partisanship – i.e., President Trump and future presidents will be able to pick among multiple justices who favor their worldview and nevertheless cull justices who favor more (or less mechanism) change.  My personal view is that they should select candidates adverse to mechanism change.  As people lose even more faith in the presidency and Congress, the Court must retain what legitimacy it has, and judges should avoid wanton mechanism change, no matter which ideological side it cuts toward.  Although I am an inveterate doctrine nerd, Chief Justice Roberts has the right idea – sometimes the doctrine must cede to judicial predictability and to conservation of the Court’s most important resource.  Mechanism change should be reserved for when the current regime is truly unworkable, and presidents should select judges who exhibit that restraint.



Mechanism Change and Judicial Capital

GVRs: The War in the Shadow Docket

On Monday, the Supreme Court’s order list figured a seemingly inconsequential spat between Justices Sotomayor and Alito.  They fought over an obscure procedural mechanism (the GVR) that the Court uses for cases it doesn’t even want to consider.  This post argues that their seemingly-mundane fight was actually over something larger.

The Supreme Court, in addition to its published opinions that dominate news coverage, puts out another entirely separate group of orders and opinions that rarely make headlines and are rarely signed.  Chicago professor William Baude has called this cluster of orders and opinions the “shadow docket.”  See, e.g., William Baude, Forward: The Supreme Court’s Shadow Docket, 9 NYU J. of Law and Liberty 1 (2015).  This shadow docket has several primary components, and all are appended to the Order List that the Court puts out about once a week:  grants and denials of certiorari, per curiam opinions (unsigned opinions disposing of cases on their merits), and GVRs.  GVRs stand for “grant; vacate; remand.”  These opinions grant certiorari (review); vacate the opinion below; and remand the case to the lower court for new consideration.  Often, the Court mandates this consideration “in light of” some recent opinion – i.e., if the Court has just put out a new death penalty case, they will remand for consideration “in light of” the rule that opinion announced.

GVRs could theoretically be uncontroversial; the logic underlying them seems clear.  But they are, in fact, a seeming source of tension between the justices.  Aaron-Andrew P. Bruhl described the controversies surrounding the GVR in the years leading up to 2009.  See Bruhl, The Supreme Court’s Controversial GVRs – And An Alternative, 107 Mich. L. Rev. 711 (2009).  In particular, he describes Justice Scalia’s heated reaction to Youngblood v. West Virginia, an unconventional GVR that did not follow normal GVR protocols, and for which Justice Scalia accused the Court of “sparing [itself] of correcting the suspected error.”  Bruhl, 107 Mich. L. Rev. at 714-15 (citing Youngblood, 547 U.S. 867 (2006)).  Justice Scalia’s general distaste for the use/misuse of the GVR vehicle continued.  In Webster v. Warden (2009), he wrote that the GVR should be used “to give the court to which we remand the first opportunity to consider” a new factor, and that the Court was misusing the practice as a rote error-correction mechanism.  Justice Scalia reprised these objections in Wellons v. Hall (2010), when he and the majority actively fought over the GVR’s role – the per curiam decision noting that GVRs preserve Court resources; Scalia noting that if the lower court erred, they should be reversed.

However, for as much as Justice Scalia was an enemy of the GVR, Justice Alito seems to have even more fully taken up the mantle of the anti-GVR crusader.  This shift matters because the GVR, in recent years, seems like it has become the scene of a proxy war between Justices Alito and Sotomayor over the role of the Court and over two ways of viewing American civic life.

Justice Alito genuinely opposes the GVR, at least in its current form. I went back six years and looked for every GVR that had an attached opinion.  Almost every time a justice wrote anything about a GVR since 2009, Justice Alito opposed the GVR’s invocation or wrote to narrow its scope.  See Adams v. Alabama (2016) (narrowing GVR); Williams v. Louisiana (2016) (dissenting from grant of GVR over JJ Ginsburg/Breyer/Sotomayor/Kagan’s concurrence in GVR); Volkman v. United States (2014) (narrowing GVR and writing “to highlight the nature of petitioner’s burden going forward”).  Importantly, Justice Alito’s opposition to the mechanism seems to be non-partisan.  See Elmbrook School District v. Doe (2014) (Alito declining to join Scalia and Thomas in calling for GVR of religious-freedom opinion).

From the other side of the ideological spectrum, Justice Sotomayor seems to have thoroughly embraced the vehicle – even from her early days on the Court.  In 2010, she dissented from the denial of certiorari in Williams v. Hobbs, noting that the Court should vacate the ruling below.  See also Hodge v. Kentucky (2012) (dissenting and recommending GVR).

These conflicts add another layer of nuance to the Court’s weekly order list. The liberal and conservative wings generally, and Justices Sotomayor and Alito specifically, are using GVR concurrals/dissentals to wage a full-scale ideological proxy contest over the role of the Supreme Court in American life.  That proxy contest embodies a core American conflict – local v. centralized control.  Liberals tend to favor more centralized control; conservatives tend to believe that localities do a better job managing their own affairs and embrace the lack of oversight that entails.

In the 1990s, the Court litigated these issues on the open-air docket and over the issue of federalism. See, e.g., United States v. Morrison, 529 U.S. 598 (2000) (fiercely-fought federalism opinion); United States v. Lopez, 514 U.S. 549, 567-68 (1995) (warning that Constitution does not countenance regime where there is no “distinction between what is truly national and what is truly local”).  But while federalism still finds places on the open-air docket, part of the fight has moved.  Just Monday, Justice Alito and Justice Sotomayor were back at it – penning dueling and emblematic opinions on the propriety of GVRing Tatum v. Arizona (2016).  Justice Sotomayor concurred in the decision to GVR; such a concurrence is unnecessary for a GVR.  Sotomayor noted that while the Court was asking the lower courts to re-do their analysis, such a re-do was necessary because the lower court had erred the first time.  She emphasized that the inquiry the Court was imposing on the lower courts was just and proper.  Justice Alito, contrarily, dissented from the GVR order.  He noted that the Court was “misusing the GVR vehicle” and that the Court does “not GVR so that a lower court can reconsider the application of a precedent it has already considered.”  He echoed, yet again, the Scalian criticism that the Court was “insisting on a do-over.”

At its heart, these decisions are a fight about how much supervisory authority the Supreme Court will exercise over the regional circuit courts.  Justice Alito argues, just as Justice Scalia did, that the Supreme Court should treat those regional courts with respect, that it should not force reconsideration without actually deciding cases.  And of course, the Supreme Court does not have the resources to issue merits opinions on every regional court error or potential error – so the Alito regime would result in considerable autonomy for the regional courts.  But unlike Justice Scalia’s howl-against-the-wind jeremiads in the 2000s, Alito has found an ideological adversary who will willingly engage him in the shadow docket – Sotomayor.  She, in essence, is arguing for a robust regime of review.  She wants the omnipresent threat of a GVR hovering over the regional courts.  It is worth noting that this is not totally unfair – the threat of a per curiam reversal hangs over every regional court that grants habeas relief.  But Justice Sotomayor is arguing for more centralized review of more types of opinions.

The shadow docket is interesting for many reasons.  But it is especially interesting if it is the place that Justices Alito and Sotomayor hone and craft their worldviews and their arguments.  Their fights in the shadow docket are a microcosm of a larger split.

GVRs: The War in the Shadow Docket

Arguing the Anticanon:  Populist Signaling and Constitutional Transgression


For decades, a set of cases have been universally acknowledged – across the ideological spectrum – as the antithesis of American constitutional norms.  But we are experiencing a cultural moment in which the very act of transgression appeals to a sizable portion of voters.  In those circumstances, we are seeing a resurgence of argument related to the constitutional Anticanon – not argument deploying the Anticanon as it is normally deployed, but arguing that it shouldn’t be the Anticanon at all.  This post argues that this argument fits into the larger transgressive moment, and is in fact a signaling device through which politicians can demonstrate transgressive bona fides.

1. Populism and Transgression

Transgression is enjoying a star turn.  Like never before, politicians in both America and Britain are gaining ground and capital solely on the basis of transgressing the boundaries set by cultural elites – with very little, if any, attention paid to whether those transgressions are constructive or not.  Both the Brexit and the Trump candidacy have strong transgressive elements – that is, their very selling point to their supporters is that they violate boundaries and norms.

Trump’s nomination in particular is roiling the American political landscape, and through traditional ideological frames, it seems inexplicable.  Pundits have exhaustively covered Trump’s divergence from anything that once resembled Republican orthodoxy – his campaign is centered around the squelching of free trade, no one actually believes that he is Christian or socially conservative, and his foreign policy fits into neither the conservative nor neoconservative wings of the GOP.

But the candidacy’s transgressive nature explains its appeal.  As the New York Times reported reported, Trump supporters even identify the phenomenon themselves (in so many words).  “‘It’s a collective middle finger to the establishment,’ a Trump supporter told the Atlantic’s Conor Friedersdorf. ‘Trump has never lied to me whereas all of the other Republican politicians (like McConnell & Boehner) have,’ wrote another reader, who added, ‘Nobody fights for my side. Trump fights. Trump wins. I want an Alpha Male who is going to take it to the enemy.’ A third Trump loyalist wrote: ‘This is a guy who isn’t afraid to abuse the abuser. He has and will continue to humiliate the establishment politicians who try to stand up to him by exposing them for who they are.’”

Will Cohen, a professor at the University of Scranton, has further noted the phenomenon in a social/religious context:  “Although there are, as many commentators have observed, social and economic factors at play, a perhaps more significant key to understanding the popularity of Donald Trump’s campaign is its sheer transgressive quality.”

In short, transgression itself is now a desirable political trait – the act itself, not just the results a politician can allegedly obtain through transgression.  It pays to be bad.

2. The Anticanon

The Anticanon, as described by many scholars but particularly by Jamal Green in his eponymous Harvard Law Review article, is the collection of anti-decisions that were, for a long while, universally reviled in American constitutional law.  See Jamal Green, The Anticanon, 125 Harv. L. Rev. 379 (2011).   Green identifies four anticanonical decisions – Dred Scott v. Sanford (mandating slavery); Plessy v. Ferguson (upholding racial segregation); Lochner v. New York (striking down state efforts to enforce health and safety standards for workers); and Korematsu v. United States (sanctioning Japanese internment).

Importantly, though, these cases are not anticanonical purely because they are wrong – far from it.  The cases include flawed reasoning that has been upended by social evolution, and critically, an ability for all sides to argue that the case is wrong in a way that benefits their current agendaKorematsu (Japanese internment) can be used by liberals (Justice Marshall arguing against compulsory drug testing because Korematsu cautions against “allowing fundamental freedoms to be sacrificed in the name of real or perceived exigency”), and also by conservatives (Justice O’Conner holding Korematsu cautions against “race-based reasoning and the conception of a Nation divided into racial blocs, thus contributing to an escalation of racial hostility and conflict”).  See Green, 125 Harv. L. Rev. at 459.  Likewise, Dred Scott can be invoked against judicial activism by the political right, and against racism by the political left.  Id.

But the point is, the right, the left, and everyone in between is still arguing against these cases.  Political actors invoke their singular power only in one direction – against the policy they oppose.  The truly transgressive act is not re-appropriating the cases, but supporting them.

3. Defense of the Anticanon

These cases have recently experienced an unusual feeling – love and warmth.  It started with prominent libertarians endorsing Lochner, which argued that parties’ freedom to contract under the Due Process Clause outweighed any state interest in protecting health and safety.  Lochner support has become downright fashionable in libertarian legal and political circles – Randy Barnett has expressed a nuanced view of the opinion, and Rand Paul is a self-avowed “judicial activist when it comes to Lochner.”  Lochner, though, offers a practical benefit for libertarians – fewer laws.  If it were only Lochner, the phenomenon would sound in substance, not in fury.

But the Anticanon reunion tour doesn’t stop at Lochner.  Trump has now reintroduced Korematsu into the debate, fully embracing the case.  He has invoked  Korematsu as a positive precedent that supports his proposal to end the immigration of Muslims to America.  Indeed, it is hard not to interpret his invocation of Korematsu as a signal to his supporters – “don’t worry, we’ll go further than simply banning new immigration.” The Korematsu invocation was the signal, at least to me, that argument of the Anticanon may have transcended the substantive and entered the realm of signaling.

Two down, two to go.  Will any candidate embrace Plessy or Dred Scott?  It’s unclear, as of now, but it is not hard to imagine a candidate nodding to at least Plessy.  An independent Congressional candidate in Tennessee came under fire came under fire for erecting “Make America White Again” billboards, embracing at least the central thrust of Plessy.  The next few months will shed light on whether any elements of the right will bat for the cycle in arguing the Anticanon.

4.  Signaling and Populism

I don’t think that these arguments are purely substantive.  Rather, arguing the Anticanon has become a signaling mechanism that lets right-leaning voters who crave transgression know just how transgressive a candidate can be.  Some talk is cheap – coded racism or slights will only carry so far, now that the top of the GOP ticket makes a habit of these traits.  Candidates seeking to signal transgression may need more drugs to get the same high (so to speak).  But Anticanonical talk accomplishes two things – it signals transgression to a highly-educated subset of voters, and it does so by touching a genuine third rail of American political thought.

Look for further arguments in support of Lochner and Korematsu, and look for ginger head-fakes towards Plessy and Dred Scott.  Who knows, politicians may need to demonstrate just how transgressive they can really be.

Arguing the Anticanon:  Populist Signaling and Constitutional Transgression

Elena Kagan’s Potential Drift on Race


Justice Kagan is primed for a multi-year drift on race.  She’s already shown signs of breaking with the left-wing orthodoxy on the subject, and I think that at some point, she will cast a conservative swing vote on a racial issue that will drive a wedge between her and Sonia Sotomayor and will flabbergast liberals who haven’t been watching the Court closely enough.

Some liberal legal groups have always been scared of Justice Kagan on racial issues.  During the Clinton administration, she did not embrace some racial causes that liberals felt were important.  Prominent groups of black and Hispanic lawyers were, at best, lukewarm about her nomination.  See Washington Post, Civil Rights Groups ConcernedBut, she made it onto the bench, and so far she has largely voted the way she was “supposed” to on high-profile cases that lead the newspapers.

Kagan, so far, hasn’t really had many blockbuster race moments. We don’t have any ideas from the two most important race cases the Roberts Court has addressed during Kagan’s tenure:  Fisher v. University of Texas (affirmative action at Texas) and Schuette v. BAMN (Michigan referendum prohibiting use of race for college admissions).  Kagan didn’t take part in either of these, because she was presumably involved with them in her prior role as SG.  She likewise isn’t taking part in the Fisher-part-2 decision that will be coming sometime in the next ten days.  So we aren’t going to know for a while — at least this term.

Nevertheless, Kagan’s language, and some other subtle clues, have indicated she isn’t a doctrinaire liberal on racial matters.  For one, she only occasionally uses the orthodox terminology.  Although Kagan has followed Justice Sotomayor’s lead on oral arguments, referring to those who are in the country without permission as “undocumented” rather than “illegal,” see United States v. Texas, Tr. of Oral Arg. at 84, she has not followed Justice Sotomayor’s lead in written opinions.  As I recently wrote, her opinion in Luna Torres is stark – Kagan uses the term “alien” 11 times and never uses the term “noncitizen.”  Sotomayor, in her dissent, uses “noncitizen” exclusively.  This juxtaposition is relatively jarring as you read the opinion.

On Monday, the schism-feeling got a little more pronounced.  The Court held that a police officer may unconstitutionally stop a suspect, check to see if he has an outstanding arrest warrant, and if he does, proceed with the arrest (because hey, why not).  The Court’s three women dissented.  Justice Sotomayor wrote a legally accurate, but also deeply personal, opinion.  She explicitly acknowledged that Part IV of her dissent – the part with the truly stinging critique – was “[w]riting only for myself, and drawing on my professional experiences.”  Strieff, at *9-10 (Sotomayor, J., dissenting).  She spoke of the “degrading” experience of a pretextual stop, the “indignity” of activist policing, and “the talk” that “black and brown parents have given their children” for decades about avoiding police entanglement. Id., at *10-12.

Justice Ginsburg joined all of Justice Sotomayor’s dissent, except for this deeply personal fourth part.  Justice Kagan didn’t.  She wrote her own opinion, that while employing her signature colloquial style, had none of the passion or personalization of Sotomayor’s.  As Matt Leipold put it, “it was like she wanted to make the point that this was a simple legal argument that didn’t need all the fireworks.”

I think Justice Kagan doesn’t see race the way that Justice Sotomayor – or many political liberals – see it.  Or at least she doesn’t see the “personalized experience” aspect of race as compatible with the judicial role.  She’s already drifted on cases in key areas, like 2254 habeas deference (White v. Woodall) and criminal statutory construction (Yates v. U.S.).  In so doing, she’s demonstrated that she has a serious view of the responsibilities of a judge and of the rules that separate the judicial from the experiential functions.  See also, e.g., Kimble v. Marvel Entertainment, Inc. (laying out nuanced and toothy view of stare decisis).  Justice Kagan, I suspect, thinks judicial opinions should be largely free of the kind of learned, lifetime judgments that Justice Sotomayor thinks are essential.

Look for Justice Kagan to drift on issues of race.  I don’t think it’ll be in a school case – or at least that isn’t the ideal presentation; Kagan was a muscular dean of Harvard Law who would want to afford other deans the kind of latitude she had to shape an institution.  It’ll be some sort of Adarand-redux case – an affirmative action program in a business setting that tees up an overreaching statute.

The left was always worried about Kagan.  So far the signs have been there if you’re looking, but she’s never had the truly high profile break.  It’s going to be this, and it’s coming.

Elena Kagan’s Potential Drift on Race

Invasion of the Judicial Body Snatchers: Justice Sotomayor’s Strange New Alliances


Anyone who follows the Court closely will recognize that it has gone a bit topsy-turvy since Justice Scalia’s death – human sacrifice, dogs and cats living together, mass hysteria.  More specifically, the Court has produced several split decisions and a few other epic punts.  No one harbors the illusion that this is a “normal” term.

But perhaps the foremost sign that things are squirrely at the Court – and indeed, that the apocalypse is nigh and we are all residing in the juridical Thunderdome – is Justice Sotomayor’s emerging alliances in certain cases with the Court’s conservatives.  In four decisions since Scalia’s death, she has joined either Chief Justice Roberts or Justice Thomas in two-or-three-justice concurrences or dissents that are deeply uncharacteristic.  These cases are Bank Markazi v. Peterson (joining CJ Roberts’s dissent), Ocasio v. United States (dissenting, joined by CJ Roberts), Merrill Lynch, Pierce, Fenner, & Smith Inc. v. Manning (joining J Thomas’s concurrence), and Luna Torres v. Lynch (dissenting, joined by JJ Thomas/Breyer).    To put it in perspective:  last term, Justice Sotomayor disagreed with Chief Justice Roberts in fifty-two percent of non-unanimous cases.  Roberts disagreed with only Kagan at a higher rate.  And Sotomayor disagreed with Justice Thomas in eighty-four percent of non-unanimous cases (the highest disagreement ratio between any two justices).

If you had asked me before this stretch what kind of cases would produce these strange alliances, I’m not sure I could have come up with a coherent answer – but my answer would not have looked like these.  They are some of the oddest cases to produce these lineups I can think of.  Let’s take them in order.

Bank Markazi is a separation of powers case.  A group of citizens sued Bank Markazi, an Iranian bank, seeking to recover funds they were entitled as a result of Iranian terrorism.  Up against several good legal defenses, the plaintiffs petitioned Congress to pass laws barring the operation of those defenses, and Congress did so.  The Court blessed Congress’s action, but Chief Justice Roberts (joined by J Sotomayor) dissented.  He traced the origin of the separation of powers, the history of legislative interference with the judiciary in the Founding era, and extensively cited the founding documents.  After this highly originalist overview, the Chief concluded that Congress had interfered in the federal courts’ Article III authority.

Ocasio was a more rote criminal case, dealing with the statutory interpretation of federal extortion law.  Justice Alito, writing for the majority, held that a group of conspirators violated the statute by transferring money among themselves.  Justice Sotomayor (joined by CJ Roberts) dissented, arguing that conspirators who transfer money among themselves cannot violate a law requiring extortion of property “from another.”  Such a reading, the dissent held, is “not a natural or logical way to interpret the phrase ‘from another.’”  Sotomayor’s dissent examined the history and purpose of the conspiracy statute (and quite effectively rebukes the majority opinion).

Merrill Lynch is perhaps the weirdest of the four.  Justice Sotomayor joined Justice Thomas’s concurrence to a Kagan opinion on federal jurisdiction.  Kagan, for the Court, concluded that the jurisdictional provision of the Securities and Exchange Act should be analyzed using the same precedents and pathways that courts use to examine normal federal question jurisdiction under 28 U.S.C. § 1331.  Justice Thomas concurred but offered a different test – whether the complaint “alleges a claim that necessarily depends on a breach of a requirement created by the [Act].”  This is so, Thomas wrote, because the statute’s language that federal jurisdiction applies when a suit is “brought to enforce” rights under the statute is clear-cut.  Thomas refused to add the gloss that the Court added (essentially asking whether the federal component is “real and substantial”) because the text did not support it.  Justice Sotomayor was the only one who joined the concurrence.

Finally, Justice Sotomayor dissented from Justice Kagan’s immigration opinion in Luna Torres.  This is another barnburner – for starters, Justice Kagan consistently refers to those in the country who are not citizens as “aliens,” while Sotomayor pointedly refers to them as “noncitizens.” Luna Torres asked whether a noncitizen who violated a state arson statute – which was identical to a federal arson statute in every way except that it lacked a federal jurisdictional element – had violated a law “described in” the federal arson statute.  The Court said yes; Justices Sotomayor/Thomas/Breyer said no.  Sotomayor resorted to highly textual analysis, incorporating the dictionary definition of “described in” into her argument and ultimately arguing that because the statutes were not identical, the state statute was not “described in” the federal one.

The only common element to these decisions seems to be what non-academics would call “the BS test.”  In all of them, the Court’s decision seemed to require a certain suspension of basic linguistic principles or common sense, and Justice Sotomayor was simply unwilling to go along with those suspensions.  She was unwilling to pretend Congress’s action didn’t erode the Court’s power in Bank Markazi, unwilling to suspend a basic linguistic understanding of “extorting property ‘from another’” in Ocasio, unwilling to augment the plain language of the Securities and Exchange Act in Merrill Lynch, and unwilling to abandon a layman’s definition of “described in” in Luna Torres.

But that still doesn’t explain why she’s now forging these alliances.  It could be that Justice Scalia was such a caustic messenger for the principles embodied in these opinions – textualism and originalism – that only once he left has Justice Sotomayor been more willing to join these alliances.  It would not be the first time that Scalia alienated a potential ally.  Jeffrey Toobin, in The Nine, detailed how Scalia’s acerbic style put off Justice O’Connor, losing her vote on decisions where he potentially might have otherwise procured it.  Or, as Chief Justice Rehnquist put it, “Nino, you’re pissing off Sandra again.  Stop it!”  Toobin, at 151.  Scalia may have simply put such an unpleasant face on originalism and textualism in internal Court negotiations that Sotomayor did not attempt to forge alliances or seek across-the-ideological-split agreement on those grounds.

It also bears note that Sotomayor split twice from Kagan less than two months after Kagan shishkebabbed Sotomayor in Lockhart v. United States.  It was a relatively minor case, turning on a grammatical quirk in statutory interpretation, but Kagan’s dissent essentially went Man-on-Fire on Sotomayor’s reasoning, and was so brutal that it was likely embarrassing for Sotomayor.  I don’t think that the two are permanently on the outs, but end-of-term bruised egos may also be creating opportunities for realignment.

Probably most crucially, it’s simply a new Court without Scalia.  Mitch McConnell has made clear that until a majority of Americans vote for the same candidate he does, the Court will be operating at a number less than 9.  All justices have been adjusting to this new reality – Justice Thomas, for instance, took up the mantle of Second Amendment defense in oral argument at one of the first sittings after Scalia’s passing.  Voisine v. United States, Tr. of Oral Arg. at 35.  In this new and uncertain environment, everyone is still trying to count to 5.  Justice Sotomayor seems to have realized that she cannot accomplish her jurisprudential goals if the votes of CJ Roberts and JJ Alito and Thomas are off the table from the start of every negotiation. She is taking perhaps the boldest steps to forge alliances in a post-Scalia world.


Invasion of the Judicial Body Snatchers: Justice Sotomayor’s Strange New Alliances

Progressive Linguistics and Auer/Chevron Deference:  A Liberal Combo Move

 Note: I performed a brief pre-emption check for this post, but in the flurry of writing following the Fourth Circuit’s decision in G.G. ex rel. Grimm v. Gloucester County School Board, I have certainly missed many insightful articles.  If this post mirrors another author’s work, I apologize.

Several weeks ago, the Fourth Circuit Court of Appeals decided G.G. ex rel. Grimm v. Gloucester County Sch. Bd., No. 15-2056, 2016 WL 1567467 (4th Cir. Apr. 19, 2016), a case in which G.G., a transgender boy (a person born biologically female who identifies as male), sued and won the right to use male restroom facilities in G.G.’s public high school.  The case demonstrates a synergy between the progressive movement’s social and bureaucratic goals.  Specifically, this post argues that the left’s efforts to aggressively enforce new norms for language dovetail with its legal reliance on the regulatory state to implement change that cannot be effected legislatively.

G.G. v. Gloucester is, at its heart, an administrative law case that turns on the deference afforded to the Department of Education’s interpretation of language in Title IX of the Civil Rights Act and regulations promulgated thereunder.  Gloucester, at *5.  Under Auer v. Robbins, a seminal administrative law decision, an agency’s interpretation of its own regulation is afforded deference by federal courts when the regulation in question is ambiguousAuer, 519 U.S. 452, 461 (1997).  This deference in the face of linguistic ambiguity is a common feature of administrative law.  See Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (implementing two-step statutory analysis that asks first if text is ambiguous, and if so, defers to agency’s interpretation of that ambiguity).

In plain English, Auer and Chevron mean that the agency gets some leeway in interpreting language if, and only if, the language is ambiguous on the page.  The first step of the Fourth Circuit’s analysis, therefore, was asking whether the relevant legislation was unclear.  That legislation, Title IX, prohibits sex discrimination, but with some clear caveats.  The law “permits the provision of separate living facilities on the basis of sex: ‘nothing contained [in Title IX] shall be construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different sexes.’”  Gloucester, at *4.  The Fourth Circuit asked, therefore, whether the phrase “sex” and “different sexes” were ambiguous.  That question mattered a great deal here, because the district court defined “sex” as “biological sex,” but the Department of Education mandates that “[w]hen a school elects to treat students differently on the basis of sex . . . a school generally must treat transgender students consistent with their gender identity.”  Gloucester, at *4, *4 n.5.  In other words, not consistent with the student’s biological sex.

You can see the upshot:  this case hinges on whether “sex” is an ambiguous word.  If “sex” unambiguously means “biological sex,” then G.G.’s high school complied with Title IX when it provided bathrooms for its students that they could use according to their biological sex.  But if “sex” is ambiguous, the Department of Education’s transgender-friendly interpretation is afforded wide latitude, and the school must allow transgender students to use the bathroom of their identified sex or else violate Title IX.

The Fourth Circuit concluded that “sex” is an ambiguous term and afforded the Department’s interpretation controlling weight under AuerGloucester, at *8.  “Although the regulation may refer to males and females,” the court found, “it is silent as to how a school should determine whether a transgender individual is male or female . . . .”  This holding certainly seems to reflect the recent and broader social push to expand the definition of “sex” from a biological inquiry into a more consent-based, identity norm that is individually discretionary.  The recent push for linguistic norms that favor transgender people’s dignity created the ambiguity, where the word “sex” likely would not have been ambiguous two decades ago.

This linguistic maneuver is not applicable to just Gloucester.  The administrative state, answerable to the executive, gains significant power when it manages to move cases from Auer/Chevron step one (plain language analysis) to Auer/Chevron step two (agency interpretation in the face of ambiguous language).  Ambiguity in language, therefore, enhances the power of the federal bureaucracy.

This phenomenon is perfectly situated for the current position and agenda of the political left.  Positionally, the left is likely going to be cabined to regulatory rulemaking for implementing progressive change for the foreseeable future.  Unless Donald Trump absolutely goes down in flames, the GOP is likely to retain at least the House of Representatives because of its current districting.  And because of baked-in Electoral College advantages, the Democratic Party is likely to retain some advantage in presidential elections absent unforeseen realignment. See, e.g.Washington Post, Electoral College Favors Democrats.  The country is therefore likely to face multiple years where Congress is gridlocked with the President, and the only federal policy change is occurring at the bureaucratic level.

In terms of agenda, the left has been (either intentionally or serendipitously) honing its ability to enforce rapidly-shifting norms of language that leave previously-unambiguous words more susceptible to arguable ambiguity.  Though I think the “political correctness” phenomenon is overstated, it is hard to argue that language is a major front in the culture war.  See, e.g., New York Times Magazine, Caitlyn Jenner (describing efforts to correctly deploy gender pronouns for transgender individuals); Azhar Majeed, Defying the Constitution:  The Rise, Persistence, and Prevalence of Campus Speech Codes, 7 Geo. J.L. & Pub. Pol’y 481 (2009) (articulating conservative viewpoint of “Orwellian” campus speech codes).  Such phenomena are not unique to the realm of transgender politics.  Universities have, for example, tried to dispense with phrases like “melting pot,” arguing that the existence of the term as usually deployed unacceptably fosters the idea that America is a colorblind society in which anyone can succeed.  See Washington Post, Berkeley Speech CodesNor is speech manipulation exclusive to liberalism, see, e.g., The Atlantic, The Agony of Frank Lutz, but it seems to be currently wielded disproportionately by progressives.

Of course, the English language has been changing since its inception, and groups have always pushed to shed terminology associated with bitter or oppressive eras.  But the new linguistic battlefields are of outsize importance to the Auer/Chevron question.  Current linguistic conflicts focus not solely on minimizing the use of slurs or banishing words that are intrinsically loaded, but on marginalizing or altering previously-uncontroversial words that express disfavored concepts.  These fights also involve newer concepts of individualized consent in language; essentially, that language is not objectively applicable to wide groups of people, but rather, is to be individually determined by the recipient of language.  See, e.g., Carleton College Student Organizations, Gender Neutral Pronouns, (noting the need for all people to choose the pronouns they believe best apply to them).

These alterations may well be good, and certainly seem to bring a measure of comfort and dignity to those on whose behalf language is altered.  But as a matter of administrative law, these societal-linguistic changes are beginning to do demonstrable work in moving cases that would previously land in the Auer/Chevron step one category into the Auer/Chevron step two category.  Language is now under enough factional pressure that it is risky, as a matter of social politeness or legal interpretation, to afford many words the “objective” reading required to keep a case in Auer/Chevron step one.  Indeed, courts can hardly declare a statute or regulation to have plain meaning – and therefore exist beyond the reach of agency discretion – if the statute or regulation’s words properly mean something different to every governed person according to his or her individualized expectations.

If this linguistic-flux-as-instrument-of-change continues, courts will need to understand its full ramifications in evaluating administrative doctrines going forward.  Chevron and Auer already have their critics, both on and off the bench, but any semblance of regulatory curtailment contained in those opinions resides in step one.  Once an agency moves language into the step two category, few if any checks are left on the agency’s interpretation.  When intelligent lawyers dedicated to progressive change realize that step one can be attacked extrajudicially, they will not simply check that weapon at the doorstep.  If federal courts wish to retain their role as legitimate checks on the federal bureaucracy, they (and the deference doctrines they employ) will have to adapt just as quickly.

Update (5-16-2016):  Justice Thomas, dissenting from denial of certiorari in United Student Aid Funds, Inc. v. Bryana Bible, noted today that “[a]ny reader of this Court’s opinions should think that [Auer deference] is on its last gasp.”  No. 15-861, at *1 (Thomas, J., dissenting).


Progressive Linguistics and Auer/Chevron Deference:  A Liberal Combo Move