"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):

The movie "The Happytime Murders" uses "Sesame Street" puppets in a way that is "explicit, profane, drug-using, misogynistic, violent, copulating, and even ejaculating."

The Daily Beast reports on the lawsuit brought by the "Sesame Street" company to stop the distribution of the film, which, of course, it did not license or authorize in any way. The film is directed by "one of Jim Henson's family member."

“Sesame seeks an injunction that forces Defendants to cease and desist their trading upon the goodwill associated with Sesame Street in furtherance of box office receipts,” the lawsuit says. “The promotion of The Happytime Murders should succeed or fail on its own merits, not on a cynical, unlawful attempt to deceive and confuse the public into associating it with the most celebrated children’s program in history.”

I assume "deceive and confuse" relates to trademark law. Is it deceptive and confusing or will pretty much everyone know it's a send-up, a satire or parody? When do the rights to characters you've created give way to the right of expression of those who want to make fun of them?

[ADDED: I’m now thinking the headline to this post misstates the facts. I think there’s just a Muppet character that is not a “Sesame Street” character and the poster slogan “No Sesame. All Street.”]

[MORE: I put up a new post with the "restricted" trailer for the movie that makes the overlap with "Sesame Street" very clear. Having seen that — not saying I liked it, but having seen it — I think it's easily within the zone of satire that should be protected.]

This makes me think of "Superstar: The Karen Carpenter Story" — "a 1987 American short biographical film portraying the last 17 years of singer Karen Carpenter's life. Directed by Todd Haynes, the film uses Barbie dolls as actors, as well as documentary and artistic footage... [and] an unauthorized soundtrack consisting mostly of the hit songs of The Carpenters."

"Superstar" was never distributed because it was stopped by claims of copyright in the music. But what about the use of Barbie dolls?

... Haynes detailed Karen's worsening anorexia by subtly whittling away at the face and arms of the "Karen" Barbie doll.

This is only tangentially related, from Woodward and Armstrong's "The Brethren," an account of the Supreme Court in the early 70s:

The National Lampoon, a humor magazine, had just released its February issue. The centerfold was entitled “Amicae Curiae”—Friends of the Court—and it depicted, in a color cartoon, all nine of the Justices engaged in a variety of sexual activity. 

View image here...

The Chief, naked except for holster and pistol, was on the floor licking the boot of an otherwise naked young woman. Brennan was standing in front of two very young girls holding his robe open. Stewart was measuring the throat of a young woman with a ruler, apparently in preparation for oral sex. Rehnquist, clad in a woman’s bra and red garter belt, was parading before the others cracking a black whip.

"Virginia Gov. Terry McAuliffe gutted a bill to let Virginia use the electric chair when it cannot find scarce lethal-injection drugs..."

"... making an 11th-hour amendment Sunday that would instead allow the state to hire a pharmacy to make a special batch in secret," WaPo reports.

The chair is already an option in the state, where condemned inmates are allowed to choose between it and lethal injection. The measure was intended to remove the choice if the state cannot obtain the drugs, which have grown scarce amid political pressure against the death penalty.

McAuliffe’s amendment comes at the scarcity issue in a different way, by allowing the state to special-order the drugs from compounding pharmacies, whose identities would be kept secret to shield them from pressure....

All I could think was what Justice Harry Blackmun wrote (more than 20 years ago): "From this day forward, I no longer shall tinker with the machinery of death."

The death of "Poor Joshua!"

Commemorated by Linda Greenhouse. 

A series of savage beatings by his father, who had obtained custody after a divorce and whose history of abuse had been reported to the local child welfare authorities to no avail, left Joshua comatose and permanently brain damaged at the age of 4.... His biological mother, acting on his behalf, sued the Winnebago County, Wis., Department of Social Services for depriving Joshua of the “liberty” protected by the due process clause of the 14th Amendment. The Supreme Court’s rejection of that claim, in a 1989 opinion written by Chief Justice William H. Rehnquist, provoked Justice Harry A. Blackmun to exclaim in dissent: “Poor Joshua!”...

For readers who don’t know the case, I’ll describe it here both because it continues to define an important part of our constitutional landscape and because, as the seasonal remembrances wind down, Joshua DeShaney Braam’s unsought role in a Supreme Court decision that limited government’s obligation to its citizens shouldn’t go unmarked.....

“That the state once took temporary custody of Joshua does not alter the analysis,” Chief Justice Rehnquist wrote, “for when it returned him to his father’s custody, it placed him in no worse position than that in which he would have been had it not acted at all; the state does not become the permanent guarantor of an individual’s safety by having once offered him shelter.”

I had not noticed that Joshua DeShaney (later Joshua Braam) had died last November, here in Wisconsin. A very sad story. The Supreme Court was put in the position of having to decide when we can properly say that the government has deprived a person of liberty without due process. The terrible harm came from his father, and while we can all look back and wish that social services had stepped in sooner, the Court wouldn't see a rights violation in the failure to intervene. Poor Joshua lived to be 36.

Justice Blackmun's 2-word outcry "Poor Joshua!" is a famous peak in judicial empathy.

What would Jeffrey Toobin say about a liberal Justice who declined to ask questions during oral argument?

Toobin, as we've been discussing, here and here, savaged Clarence Thomas for his keeping quiet during oral argument, as if that's an outrageous failure to do the Supreme Court Justice's job.

But what about Harry Blackmun, whom liberals revered?

Throughout his career, Blackmun was not among the Court’s more prolific questioners. In fact, late in life, he noted with some disapproval the number of questions asked by Ruth Bader Ginsburg and Antonin Scalia, among others, during oral argument. “One time in a couple of related cases that were argued in tandem during a morning for two hours,” he said, “I just out of mischief, kept track of the number of questions asked, and between Justice Ginsburg and Justice Scalia there were over a hundred questions asked of counsel…the result was often that counsel never could get his case argued…it was a little disturbing at time.” When Blackmun did ask questions, moreover, they tended to be relatively random in content.

I suspect Toobin would say that there's an immense difference between an occasional random question and absolutely no questions at all for years on end, but if there's a difference, which way does it cut?

Occasional random questions are not the rigorous grilling that Toobin sees as central to the development of the argument. They seem to reflect the Justice's belief that questions ought to be asked, bereft of vigorous commitment to the task.

The prolonged silence of Justice Thomas establishes his commitment to the belief that he should not ask questions (at least not until the other Justices back off from their current practice of consuming most of the advocate's time with a continual barrage of questions coming from all directions). If Thomas believed that it was a necessary part of his job to ask a question now and then and Blackmun's approach is acceptable, he could easily have a question to ask now and then.

Toobin besmirches Thomas as lazy, but the laziest Justice in the world could have his law clerks hand him a couple questions to ask at every oral argument. It would be so easy for Thomas to push back disrespectful critics like Toobin. Clearly, he's chosen not to appease them.

ADDED: Here's a description — from Woodward and Armstrong's "The Brethren" — of how the liberal hero William O. Douglas behaved during the oral argument in Roe v. Wade:

Gallup poll: 64% of Americans agree that "The decision to have an abortion should be made solely by a woman and her physician."

In the summer of 1972, half a year before the Supreme Court decided Roe v. Wade.

A majority of all identified groups, including Catholics, agreed with that statement. There was almost no difference between men and women. The group expressing the strongest agreement – 68 percent – was made up of Republicans. George Gallup’s syndicated column discussing the poll results, “Abortion Seen Up to Woman, Doctor,” ... was... in Justice Blackmun’s files.

And Justice Blackmun, the Nixon appointee who wrote the Roe v. Wade opinion, had that column in his files. Also in his files:

[A]n account by Dr. Jane E. Hodgson, a Mayo Clinic-trained obstetrician/gynecologist, of her arrest in St. Paul in 1970 for performing a first-trimester abortion for a patient who had contracted German measles in the fourth week of pregnancy. (In those days before immunization eradicated the threat posed to pregnant women by German measles, the disease commonly caused serious birth defects.) Justice Harry A. Blackmun, formerly the Mayo Clinic’s lawyer, knew Dr. Hodgson’s story; I had found her account, published in the clinic’s alumni magazine, in the justice’s files at the Library of Congress.

That's from a long column by Linda Greenhouse, referencing historical materials collected here. The column also talks about the post-Roe political strategy of the Republican Party, which we were just discussing a couple days ago here. The idea is that Republicans were for it before they were against it.

(Feel free to relate this post to the previous post about Second Amendment rights, which Democrats don't believe in.)

40 years ago today, the Supreme Court issued its opinion in Roe v. Wade.

Justice Blackmun wrote:

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however... the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment.... or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment.... These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty"...  are included in this guarantee of personal privacy....

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

Was the state's interest in protecting the unborn child sufficient to permit some regulation? The answer was yes, but not before the "viability" of the unborn. As to whether the killing of that pre-viable entity ought to be seen as the killing of a human being, justifying rescue by the state, the Court refused "to endorse any theory that life, as we recognize it, begins before live birth," since "those trained in... medicine, philosophy, and theology are unable to arrive at any consensus."

Pre-viability, the decision whether to continue with a pregnancy would rest with the woman within whose body the mysterious process was taking place, and it would not be the role of the state to make that decision for her, no matter how firmly the majority of the people believe they have solved the mystery and they know that what she is doing is murdering a child.

"State sovereignty is not just an end in itself: 'Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.'"

That quote has long been on my list of best quotes about federalism in the history of the Supreme Court, so I was pleased to see it quoted in a Supreme Court case that came out today, Bond v. United States. It's a quote within a quote, and now it's a quote within a quote within a quote.

One thing I like about it, aside from the sound principle — that the constitutional structures of government were devised to protect the people — is that Justice O'Connor, in New York v. United States, was quoting a Justice Blackmun opinion that was a dissent from an opinion she wrote one year earlier. In that earlier case, Coleman v. Thompson, Blackmun had chided her for relying on federalism as if it existed for the sake of the states rather than for the people. It seemed as though Justice O'Connor felt a need to get on the right side of that principle.

In today's case, Bond, the Blackmun/O'Connor idea about federalism was used to explain why a criminal defendant had standing to challenge the constitutionality of the federal crime she was charged with (the Chemical Weapons Convention Implementation Act of 1998). (Carol Anne Bond had put caustic chemicals on a doorknob, door handle, and mailbox likely to be touched by a woman who had gotten pregnant via Bond's husband.)

Bond made a federalism-based constitutional challenge, and the Court of Appeals said that she lacked standing because she wasn't asserting her own legal rights or interests — as required by standing doctrine. In this view, only the states have standing to raise the issue that Congress has exceeded its enumerated powers and made a crime in an area that is reserved to the states under the 10th Amendment.

Intuitively, you should sense that the Court of Appeals was wrong. Here's this woman, charged with a crime that is — if she's right about the scope of Congress's power — a nullity. She's supposed to endure conviction and punishment on the theory that only the state is allowed to say that Congress overstepped its power? That's crazy.

Do you see how eloquently the old Blackmun/O'Connor quote explained why it's crazy?

Because the limitations of federalism exist to protect citizens from the excesses of power, when Bond argues that there is a federalism limit on congressional power, she is asserting her own legal interests.

Harlan, entertained ... Souter, not so much. Two things I enjoyed reading in Nina Totenberg's NPR reports on the Blackmun Papers (available through SCOTUS here). The first one is Blackmun, in his oral history, describing the Justices and clerks viewing pornographic films to determine whether they were obscene:

I remember one time Justice Harlan was there, sitting with his law clerk up front. Of course, his eyesight was almost totally gone, and it was hard for him to see. I sat right behind him, and as the film moved on--and they were all alike // he'd lean over and say to his law clerk, "and what are they doing now?" and the law clerk would describe it and Justice Harlan would say, "You don't say, you don't say."

The second is a written message from Justice David Souter, explaining why he was declining to go to a speech Blackmun recommended:

"I know you get a kick out of these things, but you have to realize that God gave you an element of sociability, and I think he gave you the share otherwise reserved for me."