६ मे, २०२२

"When Justice Stevens wrote his opinion in Chevron, he meant to solve a knotty problem, but he did not mean to produce a major ruling, or even to make any change in the law."

"Justice Harry Blackmun’s private papers, which are now public, show that members of the Court found the case to be highly technical and difficult to decide.... Revealingly, Chevron had hardly any influence on the Supreme Court in its first years. Everything changed after Justice Scalia joined the Court in 1986 and became Chevron’s champion, urging that it inaugurated a new approach for courts to apply in reviewing the interpretations of administrative agencies. Justice Stevens repeatedly disagreed with him; he insisted that Chevron did not make any big change in the law, and that questions of law were for courts, not agencies. By the early 1990s, Scalia had prevailed: whenever an agency’s interpretation of a congressional enactment was at issue, Chevron was widely understood to give the administrative state a lot of room to maneuver. If you worked at a federal agency at the time, Chevron was your best friend." 

Writes Cass Sunstein in "Who Should Regulate? Cass R. Sunstein The question of whether federal agencies or the courts should have the right to interpret legislation may seem technical, but it significantly affects the power of the government" (NYRB)(reviewing "The Chevron Doctrine: Its Rise and Fall, and the Future of the Administrative State" by Thomas W. Merrill).

For those who are uninitiated and yet not utterly bored — a small group, I'm thinking — the Chevron case provides — in Sunstein's words — "that when the language of statutes enacted by Congress is ambiguous, federal agencies are entitled to interpret it as they see fit, as long as their interpretations are not unreasonable."

Don't miss this casual phrase: "Justice Harry Blackmun’s private papers, which are now public..."  Was that treacherous leakage? The leakage was by Blackmun, of course, but I'm still asking if making all those notes and drafts public was an example of "the gravest, most unforgivable sin." Shouldn't we have access to these materials to understand why these decisions come out the way we do? Why should we be controlled by the careful wordings and omissions of the final version?

And I see that Chief Justice Roberts referred to Blackmun's papers in the oral argument about overruling Roe last December!

Joan Biskupic wrote about it last December, right after the oral argument, in "Why John Roberts cited the private papers of the justice who wrote Roe v. Wade" (CNN):

Roberts usually scorns any courtroom references to materials beyond the briefs and record of a case, let alone to private debate among justices. But he wanted support for his position that a key part of the 1973 landmark decision that gave women a right to abortion at the early stages of pregnancy could be scrapped without disturbing Roe's central holding. 

Justices loathe public scrutiny of their behind-the-scenes negotiations on cases, and some disapprove of colleagues' arranging for their once-private papers to be turned over to public libraries when they die. Roberts called the Blackmun files, opened in 2004 at the Library of Congress, "an unfortunate source." (The court has delayed release of Justice John Paul Stevens' papers, in conflict with a bequest he made to the Library of Congress before his 2019 death.) 

So it was jarring Wednesday when Roberts referred to the Blackmun papers as he sought to bolster his assertion that a crucial section of Roe v. Wade tied to fetal viability could be discarded without undercutting Roe..... 

"If I remember correctly, and it's an unfortunate source, but it's there in his papers, Blackmun said that the viability line was ... actually was dicta. And presumably he had some insight on the question," Roberts said as he questioned Mississippi Solicitor General Scott Stewart.... 

As justices mulled constitutional protection for abortion nearly a half century ago, Blackmun indeed expressed some ambivalence regarding the point at which a state's interest in fetal life could overtake the woman's right to end a pregnancy, according to an earlier CNN review of several justices' files on Roe v. Wade....

Roberts started it. He wanted to use behind-the-scenes leaked information to further his cause, so his denouncement of the leaked draft as "absolutely appalling" is theatrical and a bit hypocritical.

५२ टिप्पण्या:

John Borell म्हणाले...

Chevron was Scalia's biggest mistake; the unchecked Administrative State is a threat to liberty.

The sooner the Court ends its failed Chevron experiment, the better.

Bob Boyd म्हणाले...

So you're saying leaked information is the same as leaking information?

mikee म्हणाले...

I enjoy the making of the sausage. Let the pork scraps be heavy with pig fat and gristle, and the casings be well scoured with hot water, before use. Because otherwise one might think that the sausage making is unpleasant to observe.

Mid-Life Lawyer म्हणाले...

It would be interesting if the leaker claimed that CJ Roberts bringing up the Blackmon private papers influenced him/her to leak the draft. Whoever leaked it would most likely be legally sophisticated enough to make that connection and justification.

hombre म्हणाले...

There seems to be a difference between releasing the private papers of a dead justice permitting a retroactive view of the machinations of the Court and premature release of a draft opinion intended to alter the outcome of a case through political pressure.

Doesn't there?

AlbertAnonymous म्हणाले...

Right. Perfectly equivalent. Well done Professor.

Kylos म्हणाले...

You don’t see any difference between referencing past private discussions and exposing private in-progress discussions? Or that the careers and preservation of professional relationships are no longer of concern for the Blackmun papers? You can argue that it wasn’t good for Roberts to reference the private papers of Blackmun, but that would be for a much different reason than saying a leak of ongoing deliberations is corrosive to the functioning of the court.

mccullough म्हणाले...

Who leaked to the Wall Street Journal about the case last week?

That one seemed like Roberts.

Wouldn’t be surprised if he leaked the draft either.

What's emanating from your penumbra म्हणाले...

Roberts started it. He wanted to use behind-the-scenes leaked information to further his cause, so his denouncement of the leaked draft as "absolutely appalling" is theatrical and a bit hypocritical.

This seems like a stretch. The government has released some information and that's a basis on which any ole person can steal information and use it for their own purposes? I'll have to think more about that, but at first blush it seems weak. I wonder if your zeal for aborted babies colors your logic on this one.

Lewis Wetzel म्हणाले...

Roberts started it.
What is it about abortion that makes Progressives reason like children?

Brian म्हणाले...

Shouldn't we have access to these materials to understand why these decisions come out the way we do?

We should. But only After the decision is made. Otherwise they are subjecting themselves to influence outside the rules of the court. Might as well turn the Court into Congress.



Wa St Blogger म्हणाले...

Maybe I am missing some key piece of information since I have limited time to delve into details of everything, but is there not a difference between after action reports and details while discussions are going on? Is CJ Roberts upset that there is leaked data in general or that it is leaked during discussions?

But I concur that it might be hypocritical to use data not part of the case material to support your case when you usually disdain the use of it in general. Either all available knowledge is useful or you set rules regarding what can be considered. I would lean toward using all knowledge regardless of whether it was presented to the court since the impacts are far reaching and significant. Making a bad call because one side or the other failed to present well is an unfortunate way to judge. However, CJ Roberts seems willing to make things up to reach a desired result as he did with the ACA, ruling on a point that was not argued by the government, for whom he decided for. So maybe more hypocritical that even Althouse suggests.

Ampersand म्हणाले...

The difference between revealing a draft opinion while a case is pending, and while the leak subjects court members to death threats, and a reference to 45 year old biographical material, is quite readily apparent.

gahrie म्हणाले...

Are you pretending to not know the difference between releasing historical documents (and citing them) long after a decision has been made and published to give a fuller understanding of history; and leaking a draft decision during deliberation to apply pressure to the Justices before the final decision is made?

Kevin म्हणाले...

He wanted to use behind-the-scenes leaked information to further his cause, so his denouncement of the leaked draft as "absolutely appalling" is theatrical and a bit hypocritical.

You can draw no distinction between working papers from the past and those from a case currently under review?

who-knew म्हणाले...

Moderator, I hope I accidently deleted that last comment rather than posting it incomplete. If you haven't seen anything previous from me on this post I apologize for the confusion.

I think it is a close call on the treachery question regarding Blackmun's notes for two reasons 1) they were released voluntarily by the author, and 2) they are now historical documents that only pertain to decisions already released in their final form.

In the current case it appears that they were leaked without the permission of the author and they relate to ongoing discussions amongst the justices about what the final decision should say. There would be an historical interest in comparing them to a final result but until they is a final result to compare them to, the leak has no legitimate justification. The only believable reason for this leak is to improperly bring pubic pressure to bear on the justices. So much more clearly, it is treachery.

Brylinski म्हणाले...

Is there anything to the distinction that the Blackmun info was 50 years old and historical, while the Alito draft was pre-decisional?

Mike (MJB Wolf) म्हणाले...

So it was more "Oops I created a Doctrine" than it was "behold my grand scheme to empower agencies." This very issue illustrates why we should be pushing for more clear thinkers on the court, but how do you test that in the Senate when offering advise and consent?

Another old lawyer म्हणाले...

Chevron - another decision that sounded good in theory, but is awful in practice. I've seen a federal agency read the same statutory definition to include X, and then after a change of administrations with a different party in power, to exclude X. In essence, re-writing the statute one way or the other, with only the bare need to support with enough words.

Get rid of Chevron and deference to agencies on statutory interpretation matters (especially when it comes to their own power and discretion) and, while the Court is at it, resurrect non-delegation.

Jake म्हणाले...

Well why do t we just televise the oral arguments and judicial conferences?

Yancey Ward म्हणाले...

I find it interesting that Scalia was the biggest proponent of Chevron from his ascent to the court through the early 90s, and that the biggest proponents since the early 90s have been the Left. Who can unravel this "mystery"?

I find Chevron an abomination of law. Congress needs to do its fucking job better, and if it can't do that, then the court needs to force it to do so rather than letting Congress give the executive branch a blank check open to any interpretation some agency drone can come up with.

JBeuks म्हणाले...

Come on, Ann. You’re a smart woman, we’ll versed in the law. You certainly can appreciate that there’s a big difference between referring to 50-year old papers that weren’t “leaked” but were made b public by their owner (the Blackman papers) and disclosing the draft of a pending decision. There’s not t whit of hypocrisy involved in condemning the latter while doing the former. I think your analysis is warped by your view on the merits of the abortion issue. You’ve abandoned your aggressive neutrality in this case.

JBeuks म्हणाले...

Come on, Ann. You’re a smart woman, we’ll versed in the law. You certainly can appreciate that there’s a big difference between referring to 50-year old papers that weren’t “leaked” but were made b public by their owner (the Blackman papers) and disclosing the draft of a pending decision. There’s not t whit of hypocrisy involved in condemning the latter while doing the former. I think your analysis is warped by your view on the merits of the abortion issue. You’ve abandoned your aggressive neutrality in this case.

Ann Althouse म्हणाले...

I see the differences. That's why I wrote "a bit hypocritical."

If I thought these 2 things were exactly the same, I'd have written "appallingly hypocritical."

Left Bank of the Charles म्हणाले...

We don’t know how big the difference is. If Alito leaked his draft opinion, then the only difference is that Alito is still on the Court.

Critter म्हणाले...

I’m not a lawyer but have a suggestion for a replacement of the Chevron rule. Let’s call it the clarity rule. Simply declare as unconstitutional any law passed by Congress and signed into law by the President that is not clear enough to interpret only one way by administrative agencies when implementing the law. Make Congress earn its pay. The clarity rule would also have the benefit of slowing down the legislative process to prevent bad laws and force lawmakers to take a stand on laws and not just the PR names of laws. It would also enable us citizens to actually be able to understand laws.

The arguments against the clarity rule would be something like “it’s too complicated, it makes my head hurt to clarify it”, etc.

Butkus51 म्हणाले...

The decision was leaked for one purpose. Get ready for a summer of "peaceful protests". Maybe a state capital or two will be taken over by protesters. Psaki and her "sister in truth" will applaud it. The media will wink. Nobody will spend any time in jail. Joe will use his angry voice. And mean it.

And we'll slice and dice the words that were used.

rhhardin म्हणाले...

ambivalence regarding the point at which a state's interest in fetal life could overtake the woman's right to end a pregnancy

That's in fact my prediction for the end of abortion - the state's eventual interest in getting the birthrate up to replacement, in effect drafting women via contraceptive failures.

rhhardin म्हणाले...

Hypocrisy is normal in an adult world. Claiming hypocrisy is a child's complaint.

MikeR म्हणाले...

'so his denouncement of the leaked draft as "absolutely appalling" is theatrical and a bit hypocritical.' 'I see the differences.' Uh, yeah. One is fine, the other is appalling. It's not even a bit hypocritical to take that enormous difference into account, even if you might call it "ironic".

What's emanating from your penumbra म्हणाले...

Ann Althouse said...

I see the differences. That's why I wrote "a bit hypocritical."

Is that like being a bit pregnant?

Christopher B म्हणाले...

mccullough said...
Who leaked to the Wall Street Journal about the case last week?

That one seemed like Roberts.

Wouldn’t be surprised if he leaked the draft either.


This seems to be the latest iteration of the irrational claim from the Left that the leak occurred to shore up the conservative majority, only now they're pointing to the WSJ editorial as being the ur-leak and claiming that it must have been a conservative because Wall Street Journal, and the Politico leak was justified in retaliation.

As I commented on the sunrise thread (though maybe the comment got lost), the claim doesn't make sense. The WSJ and Politico got essentially the same information (Goldstein at SCOTUSblog admits both knew the five votes to override Roe and Alito writing the opinion), the only difference being timing of and details included in the disclosure. What's the chance of two not only independent but opposed leakers providing exactly the same information to different organizations, vs one lefty talking to both Politico and the now infamously left-leaning WSJ reporters? The one piece of info that does seem relevant from Goldstein is noticing that not just Gerstein but also Alexander Ward from Politico's national security beat was on the leak byline. He thinks this indicates Ward rather than Gerstein got the leak which might further indicate that the leak was moving through different and wider channels than normal SCOTUS rumors.

As to Roberts? I don't think the possibility that he's in the mix can be discounted. I would be more likely to suspect that the WSJ editorial page got the leak over the transom from the reporting side, and somebody decided that it would be a good idea to help Roberts with the project of preserving Roe on the theory that it would benefit Republicans in the upcoming election by not giving Democrats a talking point but that Roberts confirmed the info and gave them the nod.

Achilles म्हणाले...

Roberts started it. He wanted to use behind-the-scenes leaked information to further his cause, so his denouncement of the leaked draft as "absolutely appalling" is theatrical and a bit hypocritical.

That is a lovely hilarious and revealing line.

Justice Roberts is not a Justice or a Judge. He is a robed priest. This is all garbage.

Roberts has 1 job: interpret the constitution. If he was doing his job he would write a 1 page opinion on Roe that quoted the 9th and 10th amendment and tell the State Legislatures to get busy.

A 3rd grader could do this job better than Roberts.

But obvious logic and reasoning doesn't get the answer Ann wants. So she stamps her feet and flails.

The leftists pretending to be judges cite Blackburn's "personal notes" as some sort of authoritative source to get the answer they want.

This is all a sham.

Learn to read. Leave us alone.

JK Brown म्हणाले...

Chevron created the conditions for repudiation of the Charter of the Forests and undermined Magna Carta. King's Forests are no different than EPA, et al, controlling the property through edicts.

Most interesting to observe was how little notice American universities and law schools took note of the 800th anniversary of Magna Carta back in 2015.

mikee म्हणाले...

The decisions by the Supremes are already crowdsourced, with amicae presenting just about every position imaginable and clerks scouring precedent to find the exact bon mot of a quote supporting the decision. So why not just put every scrap of paper online as it is generated, for public review?

Because then you'd have knowledge of how the sausage is made, and it often isn't as sanitary a process as you'd like, that's why not.

Mike (MJB Wolf) म्हणाले...

I see the differences.

One of the most fascinating phenomena on this Blog is watching the host offer up an issue to examine and eliciting from more than one braniac the response, "What makes you think [insert wrong assumption here]?"

Some here are just cringeworthy.

h म्हणाले...

"Blackmun also donated his papers to the Library of Congress, more than 530,000 items, with a release date five years after his death." Blackmun died in 1999 and the papers were released in 2004.

Václav Patrik Šulik म्हणाले...

Several comments.

First, I was thinking about this subject last night. Specifically, I was thinking when I started my legal career in 1985, one of the things I had to do was to go through all the legislative history to determine the exact scope of an ambiguous congressional restriction. Without going into details, there was a very broad interpretation, which was favored by "liberal activists," and a narrow interpretation favored by the right. At the agency, the holdover Carter appointees in 1982 issued an interpretive opinion which favored their side. However, when I reviewed the legislative history, I found no support by Democrat Senators or Representatives proposing this view, but did find enormous support for the conservative position. Indeed, it was the Republicans who proposed the legislative restriction. I set forth my findings in a memo, with the history attached and the agency reversed its position. Years later, when Clinton took over, they changed the regulation back to the broad position (which, to my way of thinking, was always the best way of proceeding - it should go through notice and comment, not an issued memo). None of this matters now. Very few of the younger staff have read any of the legislative history - I may be the only one who has read the entire legislative history. But it doesn't matter, because Scalia shifted everything from the legislative intent to the text. What does the text mean? Not, some report or language inserted by a legislative aide (which happens, a lot, as he was aware).

Behold the textualist revolution. It's real.

Second, Blackmun's papers have long been available - no leak. I've read some of the drafts of opinions in Bernard Schwartz's books - not just for the Burger years, but for other years. Blackmun's own initial drafts are really pretty bad. It's hard to believe he was summa cum laude and Phi Beta Kappa from Harvard (although I understand it was in mathematics).

One place you can find some of the Burger Court drafts is on this website - this is the link which will bring up some of the Roe papers from 1971 and 1972:
http://supremecourtopinions.wustl.edu/index.php?rt=pdfarchive&context_case_name=roe+&context_docket_number=&context_opinion_content=&action=&term=&justice=

Amadeus 48 म्हणाले...

When I was in law school the profs used to joke that the Supreme Court believed that the words of a statute were to be consulted only when the legislative history was unclear. Why not the justices’ diaries, too?

Dear diary,
Today I really got to Sandy O’Connor. She was nattering on about how affirmative action was just a temporary boost to reset the balance scale, and I said, “You must be nuts. These folks are never going to let this go, and those nummos at the universities won’t either. They like the power of playing God in the admissions offices.” She turned bright red and said they won’t need this in 25 years. I said, put it in writing.

Krumhorn म्हणाले...

Vaclav nailed it exactly as I was going to write it. Judges use legislative history very often when they are navigating the language of a statute in order to divine intent. What would be extraordinary about judges using their own documents, particularly, the documents of the opinion author, to work out what was meant?

- Krumhorn

Fredrick म्हणाले...

"Sunstein's words ...unreasonable"

Well, let me help. when the language of statutes enacted by Congress is ambiguous, American citizens are entitled to interpret it as they see fit,..."

There, fixed it for Cass the educated elites.

Vance म्हणाले...

I work with state administrative agencies a lot. Here in Utah, our Court has adopted 1) the statute means what the statute means, and only if we can find ambiguity do we resort to legislative history; 2) they look for a grant of deference to the agency by the legislature. Such a grant can be implicit or explicit. And 3), sometimes an explicit grant doesn’t matter; like in my field (Worker’s compensation) where even though there is a statute saying we grant the Labor Commission authority to interpret the law, the Supreme Court has explicitly said “Nah, we the Courts owe no deference to the agency in legal interpretation as we are better at that than they; we only defer for factual rulings..” Mostly due to history, I think, since it’s a large body of law dealing with worker’s compensation and the actual statutes are only a small portion of what the law is; since it is a lot of case law to learn and interpret.

Indeed, I focus a lot in my practice on the text of the statutes… but the vast majority of actual practitioners in the field representing insurance carriers and injured workers rarely even read the statutes; we all cite case law supporting or opposing our positions. What the Utah Legislature wants is usually irrelevant. Not all the time, of course, but still: the leading piece of law in our field is a 1986 Utah Supreme Court decision, not the actual text of the statute.

I wonder how many agencies are actually like that?

Greg The Class Traitor म्हणाले...

Roberts started it. He wanted to use behind-the-scenes leaked information to further his cause, so his denouncement of the leaked draft as "absolutely appalling" is theatrical and a bit hypocritical.

Wow. Um, no.

1: Blackmun owned his own personal papers. Blackmun did not sign an agreement not to release his own personal papers. The information was already out there, there's nothing Roberts could do to wipe it from people's mind

2: The Alito draft was not the property of the person who leaked it. Ht person who leaked it did agree not to leak that kind of information. The information was not already out there.

So, other than pretty much every relevant issue, they're totally the same!
/sarc

A question, professor: You've now had several days to study the Alito draft. Have you found ANY legal or factual errors in it?

Not found things you politically disagree with, but found legal flaws or factual errors (esp about the history of abortion)?

Will you be sharing them with us if you find any?

If you can not find any such errors, is that not a strong argument that from a judge / legal / Constitutional point of view, that means the decision is correct?

Greg The Class Traitor म्हणाले...

mccullough said...
Who leaked to the Wall Street Journal about the case last week?

That one seemed like Roberts.


Not a chance. The leak was "that jerk Roberts is trying to save Roe!" That's not something Roberts would leak

Wouldn’t be surprised if he leaked the draft either.
It would be shocking for a Righty to leak it, and have the entire Left go to bat for him / her

Greg The Class Traitor म्हणाले...

Shouldn't we have access to these materials to understand why these decisions come out the way we do?

If the Opinion issued by the Court doesn't answer that question, then you have a serious problem, and an almost certain guarantee of a bad ruling.

You appear to be desperately trying to turn Judges, who are supposed to be bound by the law, into Legislators, who get to create the law.

That is a really bad thing to do

Greg The Class Traitor म्हणाले...

Left Bank of the Charles said...
We don’t know how big the difference is. If Alito leaked his draft opinion, then the only difference is that Alito is still on the Court.

If Alito leaked his draft opinion, then he must be some amazing strategic and tactical genius, to get the entire Left to go to bat for his actions

Greg The Class Traitor म्हणाले...

Christopher B said...
The one piece of info that does seem relevant from Goldstein is noticing that not just Gerstein but also Alexander Ward from Politico's national security beat was on the leak byline. He thinks this indicates Ward rather than Gerstein got the leak which might further indicate that the leak was moving through different and wider channels than normal SCOTUS rumors.

The more I think about it, the more I find that unpersuasive. Here's why:

The Leaker had to expect there'd be an investigation of the Leak. Gerstein covers the SCOTUS beat, so someone finding out that you talked with Gerstein isn't necessarily damning.

But if any clerk can be shown to have communicated with Alexander Ward, who's on the National Security beat, not the SCOTUS beat, then that would be solid evidence putting a target on said clerk.

Now, maybe what happened is that someone at NSA intercepted transmission of the draft, and they passed it to Alexander Ward.

But if so, that person needs to spend the rest of their life in jail for abuse of government resources

DKWalser म्हणाले...

The Chevron doctrine, as it is currently applied, is a disaster. It's one thing for courts to give deference to the technical and scientific determinations of administrative agencies. After all, judges typically are not well-versed in science or technical fields. It is an entirely different thing for courts to defer to the legal opinions of bureaucrats. Legal interpretation should be well within the wheelhouse of the courts! Why, then, should there be any deference to an agency that, typically, has a bias or interest to protect?

Appellate courts give deference to lower courts on factual questions. They give no deference to lower courts on questions of law. The courts should adopt the same approach to dealing with administrative agencies.

tommyesq म्हणाले...

Chevron seems to set the decision point to be between an unelected court and an unelected administrative bureaucracy. How about f*cking Congress and the Senate put their balls on the line and decide what the law should be?

Brian म्हणाले...

You appear to be desperately trying to turn Judges, who are supposed to be bound by the law, into Legislators, who get to create the law.

She's still in the bargaining phase of loss.

Brian म्हणाले...

She turned bright red and said they won’t need this in 25 years. I said, put it in writing.

An example of one of those "rights" that SCOTUS found but, possibly only for a limited time.

Only 6 more years till Barbara Grutter can try again.

Brian म्हणाले...

Chevron seems to set the decision point to be between an unelected court and an unelected administrative bureaucracy. How about f*cking Congress and the Senate put their balls on the line and decide what the law should be?

I think maybe that was Scalia's thought. It's up to Congress to be more careful. But Congress realizes that there is more graft available in not being careful with its language. Hence the mess we are in today.