Terror, Torts, and Telecom
The Supreme Court's 2003-2004 Term
About This Event

Sometimes wrong, often imperious, but never boring: the Supreme Court has all but finished another year of energetic interventions in the nation's business, from the war on terror to campaign finance laws to deconstructing the Pledge of Allegiance.

Please join Viet Dinh, former U.S. assistant attorney general for legal policy; Notre Dame law professor Richard W. Garnett; veteran appellate litigator Edward W. Warren; and the Federalism Project's Michael S. Greve for an afternoon of spirited analysis.

Agenda

2:45 p.m.

Registration

3:00

Panelists:

Viet D. Dinh, Georgetown University Law Center

Richard W. Garnett, Notre Dame Law School

Edward W. Warren, Kirkland & Ellis

Moderator:

Michael S. Greve, AEI Federalism Project

5:00

Adjournment and Reception

Event Summary

June 2004

Terror, Torts, and Telecom: The Supreme Court's 2003-2004 Term

The Supreme Court's 2003-04 term had much to offer for Court watchers-major cases on campaign finance reform, telecommunications law, international torts, and the War on Terror-but added little, it seems, to federalism jurisprudence. In what is now an annual tradition, the Federalist Project hosted a June 29 panel discussion on the recent term and its federalism and extra-federalism implications.

Michael S. Greve
AEI

This is the second term in a row that federalism cases, which once dominated the Supreme Court's agenda, have not been particularly prominent.  I would suggest four reasons why that might be: First, a war, whether it is a conventional war or a war on terror, focuses attention to national affairs, and at some point the Supreme Court will come to regard federalism and states' rights as a mere distraction. Second, federalism jurisprudence, regardless of the war, may have reached its natural limits.  A third possible explanation--and this really does speak to the present term--is that the federalism cases have not disappeared. They may continue to exist in a slightly different form, and that is jurisdiction.  Jurisdiction questions have federalism overtones, and federalism is a pervasive theme behind the cases. Once you have decided that the way we keep control over the states is not the force of arms but the majesty of the law, the questions are: Whose law? And what law?  And under what circumstances?  In other words, everything becomes jurisdiction, and jurisdiction becomes everything.

The fourth and final explanation for the strange disappearance of federalism cases may be that the federalism cases themselves were never about federalism; they were just about judicial supremacy. All modern Supreme Court law is about the Court throwing its weight around: sometimes it happens to throw its weight around against the states, and sometimes the national government happens to be at the receiving end. That is largely a function of the ebb and flow of cases. 

Richard W. Garnett
Notre Dame Law School

A few years ago, you could not swing a cat without hitting somebody who was talking about a federalism revolution, and usually they were regarding this revolution with sort of wild-eyed terror.  In the legal academy, there was a cottage industry devoted to decrying the return of bizarre mystical doctrines of federalism. These claims were wildly exaggerated.  Still, there was something to them--there did seem to be something happening, This term, though--and I say this without much happiness--should end any talk of federalism revolutions.  If there ever was such a revolution, it is now over and indeed is in full retreat.

There are four different ways we might think about judicial federalism, at least as practiced by the Rehnquist Court. First, there is a sort of mystical federalism, built on abstract claims about state sovereignty and immunity.  In these cases, you get the idea of the states as being these kind of metaphysical entities. A second form of federalism is one we might think of as experimentation federalism, something that enables a diversity of policy approaches. According to this view, federalism's virtue is that it allows for state competition. A third version of federalism is what we might call civil society federalism or the federalism of mediating associations. You see this in a lot of First Amendment cases, like the Boy Scouts case from a few years back and in recent cases dealing with political parties. Finally, there is the limited government or enumerated powers version of federalism, and this is the kind of federalism that started the whole show back with Lopez. In my view, this is the kind of federalism that the Court is best able to enforce and ought to enforce, and it is also a vision that I am afraid is on its last legs.

With that background in mind, let me say a few things about this term and how federalism in all these forms fared in this term's cases.  The short answer is: not very well. The Justices showed strikingly little interest in the mystical or dignity-based version of federalism. There was a case called Tennessee v. Lane involving the Americans with Disabilities Act, and also another Tennessee case called Hood.  In both these cases, the state government's immunity or sovereignty-based claims were quite unsuccessful. On the second version of federalism, what I called the experimentation version, it is more of a mixed bag.  There was Justice Thomas's concurrence in Nedow, which is an incredibly convincing essay on the establishment clause. According to Thomas, this clause promotes federalism-it was intended to permit states to experiment a bit in terms of church-state relations. On the other hand there is the Hibbs v. Winn case about the Tax Injunction Act and the legitimacy of challenging details of states' tax collection programs in federal court. You can read Hibbs as second-guessing state policy or hamstringing Arizona's school choice experiment. On the civil society form of federalism, we had the BCRA campaign finance reform case, which undercuts the autonomy and power of political parties in our system.  That is something that I think from a civil society point of view we ought to be concerned about. 

It's hard to detect any Lopez-like concern for first principles of enumerated powers this term.  The Court avoided an enumerated powers question in the Hood case. In Tennessee v. Lane, the Court returned to a pretty expansive understanding of Congress's enforcement power under Section 5, perhaps trimming back a bit of Boerne.  Finally, we have what for me is the term's real heart-breaker, Sabri v. United States. For Justice Souter, it seemed utterly unremarkable that the federal government can disburse money to anybody and for any reason that it wants--subject to a few constraints like the establishment clause. This is an 8 to 1 case, and no one is going to talk about it outside of this room.  But I would advise you to take this case to heart because it represents a depressing repudiation of any hopes for enumerated powers revival.

Edward W. Warren
Kirkland & Ellis

My task for this event was to analyze what many might consider the Court's boring cases-rulings dealing with preemption, jurisdiction, or agency regulation. In trying to find some theme to link the cases, I realized that four had been written by Justice Scalia:  the Engine Manufacturers case, the Southern Utah Wilderness Alliance case, the Verizon Communications case, and the Grupo Dataflux case.  In four others, he had written either a dissenting opinion or a concurring opinion-- the South Florida case, the Nixon case, General Dynamics, and Intel. I thought I would speak about Justice Scalia's jurisprudence and how it has survived this term.

By way of background, Justice Scalia's greatest contribution to the Supreme Court from the moment he arrived is that he is kind of the anti-chancellor.  This is a Justice who has developed an internally consistent and logical jurisprudence from which the results in individual cases are really derivative of the overall approach.  He does not reach ad hoc results heavily influenced by the specifics of a case.  He has shown great fidelity to constitutional structure and to doctrines that derive from the Constitution. In the early years of Scalia's tenure, we saw him in the ascendancy.  Although he did not write the Chevron opinion, for example, he became the promoter of the Chevron agency deference doctrine.  Chevron is one of the most cited Supreme Court cases and one of the most important cases the Court has ever decided.  It has done a lot to explain the fact that the Court's docket has dropped from 150 cases fifteen or twenty years ago to 74 cases this term.

What we have seen in the last few years the Court rejecting or moving away from the kind of principled jurisprudence that Scalia stands for.  It is not so much his position as conservative or liberal, but rather his approach to rules versus standards. In recent years we see everybody on the Court, with the possible exception of Thomas--and maybe not even Justice Thomas--moving away from Justice Scalia's jurisprudence.

This term, in particular, Justice Souter and, to a lesser extent, Justice Ginsburg, have become outspoken critics of Justice Scalia's approach. Scalia, if you take the Engine Manufacturers case, is still very much a textualist. Scalia approached the question of "what is a standard" under the Clean Air Act with greater simplicity than I would have ever dared, and he carried everybody on the Court except Justice Souter.  Justice Souter makes it very clear that what matters to him is statutory purpose, legislative history, and not strictly the text. Another example of the Souter/Scalia dichotomy is in one of the most significant cases of the term: General Dynamics.  The case involves reverse age discrimination under the civil rights laws.  The question is whether younger workers can be protected from preferences given to older workers.  As Justice Thomas says in his opinion, age is like race is like sex: rules are clear on the face of the statute.  But Justice Souter, writing for the majority says, no, we need to look at the legislative history, and indeed the social history, because the legislative history was sparse. We need to look at developments over a long period of time that led up the passage of the statute, and if we do, it seems Congress meant only to protect older workers from preferences given to younger workers.  So "age" really means "old age," even though that is not what the statute says. You see this similar kind of debate going on with Justice Ginsburg in the Intel case, where Scalia says that the text of the judicial code is clear, and you don't need to elaborate it in the way she does through legislative history.  He seems to be losing the legislative history battle, at least with those two Justices, and conveniently with others when they feel the need to do so. Further, the age of Chevron is over: only in the context of rather formal proceedings are agencies going to get deference.

I do not want to make things sound too bleak because Justice Scalia's influence is evident in a couple of important cases. In Southern Utah, for example, he provides a brilliant Administrative Procedures Act (APA) textual reading.  He took a complex, hard problem, saw the implications, and wrote a deceptively simple opinion, which will have, I think, quite significant implications for the courts in environmental cases and perhaps in other areas.

Viet D. Dinh
Georgetown Law Center

I will focus on the terror trilogy--and, in particular, Hamdi and Rasul--and the Sosa case that considers the scope of the federal Tort Claims Act. These cases suggest the increasing relevance of international law or transnational law in our domestic jurisprudence. There is a new jurisprudence evolving, and I will flippantly call it the new federalism-it considers the relationship between our national government and supra- or extra-national governments.

In Hamdi, it is hard to count the votes because there is a four-Justice plurality and a couple of unenthusiastic concurrences from Justice Souter and Ginsburg. Justice O'Connor's opinion should not be overstated. Even though she uses the word "military tribunal" in the case and suggests that may be an avenue in future cases, she does not mean military tribunal in the sense of an executive order establishing military tribunal.  Hamdi, like the other terrorism cases, deals with the military version of a probable cause hearing, not a military version of a trial. The question she grapples with is whether there is sufficient evidence to categorize Hamdi as an enemy combatant and has he been afforded an opportunity to contest that evidence. O'Connor suggests that a hearing need not be judicial in the first instance. In that hearing, you can use hearsay evidence, and indeed you can even adopt a presumption in favor of the government, as long as that presumption is rebuttable and the alleged enemy combatant has an opportunity to present facts to contest such a designation.

I think that the question on everybody's mind is the practical import this has on the war against terror.  I think it is fairly minimal. The Court simply established, as a matter of law, what the administration has already announced and committed itself to as a matter of policy.  The midterm review procedures for the Guantanamo Bay detainees are fairly similar to what the Supreme Court laid out.  They would have to be, of course, applied to persons like Hamdi and Padilla, but then going forward, I do not see that it will be a great sea change.

Of course, the Court also recognized that the authorization for the use of military force gives the president the power to detain enemy combatants.  It did not reach the constitutional question whether commander-in-chief power under Article II gives the President inherent authority to conduct such military detentions, so they left open the opportunity for Congress to come in and perhaps push the envelope as to whether or not the president has such inherent authority in the absence of congressional authorization.  I think that will be the next round of legislative, political, and judicial actions that we can expect, assuming that Congress gets up the guts to enter this complicated and dangerous area.

The Rasul case has, at its core, an ambiguity: does the decision rest primarily or exclusively on the American lease agreement with Cuba? If it rests on broader grounds, it may overrule Johnson v. Eisentrager, which would have very dramatic implications on how we conduct the war on terror. Rasul seems like part of a trend where the Court is entering areas of executive decision-making.  This is fairly surprising because we have seen some recent terms where the Court, with respect to the vertical distribution of powers between the federal government and the states, showed a strong affinity for the federal government.

Sosa v. Alvarez-Machain is quite interesting in this context. The case is fairly straightforward: does the alien tort statute provide simply for jurisdiction or does it also provide a substantive cause of action?  The Court said very clearly: only jurisdiction, that is, jurisdiction for common law claims violating the laws of nations.  (It is undisputed that at the time of its adoption, there were three common law violations of international law:  breaches of safe conduct, torts against ambassadors, and piracy.  The big dispute is whether or not there is any opening for new torts beyond those three original offenses.) An interesting dispute occurs in Sosa between Scalia and Souter about why jurisdiction is the correct answer. For Justice Scalia, the shift from universalism to positivism in American law and also the advent of the Erie doctrine means that there is no opportunity for federal courts to find new common law torts. For Justice Souter, "the door is ajar, but the judges will be very vigilant sentinels" as to who gets through it. 

Justice Souter makes clear reference to the Torture Victim Protection Act and the Filartiga v. Pena-Irala case, implying that torture may be one of the things that is of the same stature as those three original torts. It's interesting to note that, in Rasul, Justice Stevens, writing for the Court, did not only decide the habeas question, but also reversed on the alien tort statute claim, where the court below said it would not entertain the Alien Tort Statute claim. Justice Stevens preferred a more generous approach. Further, in Justice Stevens's Padilla dissent, he openly objects to "unlawful procedures to extract information" like "incommunicado detention." Justice Stevens, at least, believes that the conduct alleged by Padilla and Rasul constitutes a form of torture and is actionable under the alien tort statute. This is why it is internally consistent for him to remand on that in the Rasul case.

Now that we have opened up this great Pandora's box, what constitutes a common law tort under international law?  Even once we determine that, what are the contours of that tort?  The Court's new federalism, I predict, will increasingly concern itself with these and similar questions.

NRI fellow Kim Hendrickson prepared this summary.

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