October 7, 2013

Which state attorneys general "were throwing away important points of law, not just for their state, but for the other 49"?

In his New York Magazine interview, Justice Scalia says that these days, when the states have cases in the Supreme Court, they send in "people who know how to conduct appellate argument." But:
In the old days, it would be the attorney general—usually an elected attorney general. And if he gets a case into the Supreme Court [pumps his fist], he’s going to argue it himself! Get the press and whatnot. Some of them were just disasters. They were throwing away important points of law, not just for their state, but for the other 49.
Who, specifically, do you think he might have been talking about there? I'll tell you who I thought of when I read that: Roger A. Tellinghuisen, the Attorney General for the state of South Dakota, whose argument in South Dakota v. Dole — the key case about Congress's power to attach conditions to spending — threw away an important point of law that could have limited the spending power. For years, when I teach that case, I've urged students to listen to that argument as a lesson in what not to do.

Tellinghuisen was only prepared to talk about the 21st Amendment as a limit on the Spending Power. There's an argument in an amicus brief from the National Conference of State Legislatures that O'Connor pushes Tellinghuisen to use, about how related the condition needs to be to the spending, and Tellinghuisen says he's "not prepared to argue that particular fine point." His case is about a condition that relates to the sale of liquor, so he's all about the amendment that preserves state legislative power in that area, as if all that matters is winning this particular case — which he didn't — and not about the doctrine that will apply to many other cases in the future.

In the 7-to-2 opinion in Dole, written by Chief Justice Rehnquist, we see that the thrown away point in a footnote (boldface added):
Our cases have not required that we define the outer bounds of the "germaneness" or "relatedness" limitation on the imposition of conditions under the spending power. Amici urge that we take this occasion to establish that a condition on federal funds is legitimate only if it relates directly to the purpose of the expenditure to which it is attached. See Brief for National Conference of State Legislatures et al. as Amici Curiae 10. Because petitioner has not sought such a restriction, see Tr. of Oral Arg. 19-21, and because we find any such limitation on conditional federal grants satisfied in this case in any event, we do not address whether conditions less directly related to the particular purpose of the expenditure might be outside the bounds of the spending power.
The Court found spending on highway construction sufficiently related to the age at which a person is allowed to buy alcohol. Dissenting, Justice O'Connor said:
When Congress appropriates money to build a highway, it is entitled to insist that the highway be a safe one. But it is not entitled to insist as a condition of the use of highway funds that the State impose or change regulations in other areas of the State's social and economic life because of an attenuated or tangential relationship to highway use or safety. Indeed, if the rule were otherwise, the Congress could effectively regulate almost any area of a State's social, political, or economic life on the theory that use of the interstate transportation system is somehow enhanced.
What an astounding missed opportunity to limit conditional spending! 


Andy Freeman said...

Why can't someone bring another case and make a good argument?

In every other field of human activity, fixing mistakes is seen as a good thing. You can't change the past, but the future can be different.

Why are Supreme Court decisions different?

Bob Ellison said...

Yet in the Obamacare case, the SCOTUS felt free to take a position that was only weakly offered and explicitly denied by the government publicly.

So the court can't think for itself? Or when is it allowed to do so?

cubanbob said...

Regrettably most if not all state AGs are either too stupid or to cowardly to bring cases in front of the court along these lines. Off the top they could challenge Davis-Bacon, Medicaid rules, education and unfunded mandates.

Ann Althouse said...

"Why can't someone bring another case and make a good argument?... Why are Supreme Court decisions different?"

The classic discourse on adhering even to wrongly decided cases is in Planned Parenthood v. Casey. Check it out. There are 4 factors. This will be on the test.

From Inwood said...

I had a clerkship on an appellate court & the same was true of the briefs written by pro bono or public defenders.

These briefs would invariably start with a pointillistic listing of the perp's er, appellant’s history, which, in most cases, was not going to make the reader (the judges & clerks) favorably disposed to him.

What was needed was a killer opening sentence, like this one (from memory):

Five minutes before he was brought into the trial court, appellant, who could barely speak or understand the English language, was provided with an interpreter for the first time.


This was 50 years ago.)

Simon said...

Bob Ellison said...
"Yet in the Obamacare case, the SCOTUS felt free to take a position that was only weakly offered and explicitly denied by the government publicly."

The Chief explained precisely why that was so in his opinion, and if that didn't persuade, maybe this will: http://simondodd.org/blog/?p=565.