June 26, 2006

Different Breeds of Katz

by Milbarge

Watch out, folks. I'm about to make a textualist argument.

I have a conservative law school friend who, whenever we argue over abortion or other privacy rights, fumes, "Show me where in the Constitution you find the word 'privacy'!" I like to reply, "Show me where you find the words 'sovereign immunity'!" But if you look, Article I does state that Congress should establish uniform bankruptcy laws. So, it's more than just a "policy," as Will asserts; it's a constitutional directive to Congress that is clearly at the expense of the states. Why is it so hard to fathom that a policy gleaned from the Eleventh Amendment in Hans could be trumped by an explictly enumerated power? (Okay, to be fair, the concept of state sovereign immunity is older than Hans, and I'm not disputing its existence; mainly I'm just gigging Will. I just think he's giving short shrift to Congress's bankruptcy responsibility by calling it a mere "policy" when it at least shows up in the Constitution.)

A few more thoughts below the fold.

I'm still not sure what to make of what Will calls the Stevens Nullification Doctrine. After the Brigham City case, I thought Stevens was just being persnickety about the Court taking piddly little cases. I know I was frustrated when they agreed to hear Marsh, given how few people it would affect when so many more important issues are out there. So I'm not surprised he voted against cert.

On the merits of his one-way rachet idea for state courts interpreting the federal constitution, I guess I have to agree with Will that the state courts are technically making legal error if they use an over-expansive reading to benefit criminal defendants. But the Court has always said it doesn't sit merely to correct errors. I wouldn't draw a bright-line rule like Stevens seems to want, but really, what's the big deal in taking these cases? So what if some or all of the states think the Supreme Court is too stingy (or, more likely, wrongly predict how stingy the Court will be once it takes up the issue)? In so many other areas of the law, we entrust state judges to interpret the federal constitution, and even give them a great deal of deference. (Stone v. Powell comes to mind.) If the states are such great laboratories, why not see how they deal with the federal constitution and reap the benefit of their collective insight? Okay, so you may get some loon in Alabama who wants to repeal the Supremacy Clause. But it seems like the other Justices are just as realist if they only care about correcting errors when defendants win in the state courts.

As for whether Will is making a tempest in a teapot, I think it depends on whether this idea will outlast Stevens's tenure on the bench. Am I correct that he's been alone in all these opinions? Yes, these solo dissents can launch a thousand law review articles, but Stevens doesn't have long to build any votes for it. So why bring it up now? Where did it come from? I have to wonder (pure speculation) if the new Justices have significantly shaken up the cert discussions, and Stevens finds it necessary to air his disagreements publicly. I seem to recall Roberts saying at his confirmation hearings that he thought the Court could take more cases; maybe these are the kind of cases he meant. Or, since Stevens is the only Justice who isn't in the cert pool, maybe one of this term's clerks has a bee in his or her bonnet!

June 26, 2006 11:38 PM | TrackBack
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