Peter Schuck asserts that “The Supreme Court’s decision yesterday in Wyeth v. Levine gives unprecedented power to juries in deciding issues far outside their expertise.” This is a very strange claim. The tort system wasn’t created this Tuesday; juries, for better or worse, have had the authority to make judgments about torts for centuries. How the Supreme Court could be said to have conferred this authority on state courts I can’t say, and Schuck certainly doesn’t explain.
From there, Schuck goes on to argue about the deficiencies of the tort system in deciding such cases. Some of these claims have merit, although given the actual realities of American regulation they also strike me as pretty useless. I particularly enjoyed this: “And juries in different states make different decisions on the same drug–hardly a recipe for the uniformity and predictability to which manufacturers should be entitled.” Whether or not manufacturers should be “entitled” to uniformity — and, I myself, could care less about “federalism” — the framers of our constitution decided a couple centuries ago that we should have a highly decentralized system of economic regulation. (And I certainly know that manufacturers aren’t entitled to complain about such decentralization only when it doesn’t work in their favor.)
But leaving aside the policy merits of Shuck’s arguments in the abstract (and they do have some), what’s curiously missing in the first paragraphs is an explanation for what legal warrant the Supreme Court has to dismantle this system. The last I looked, “Peter Schuck doesn’t think it produces optimal policy outcomes” is not a very convincing constitutional argument. Fortunately, he goes on to include valuable information reminding us that the Supreme Court was, in fact, right:
However, as a matter of law–the confusing law that the Court has created in this area–the Court majority may have been correct. In the statute that governs the FDA, Congress expressly gave the FDA preemptive power over state tort law as to medical devices, but has never done so for drugs, leaving the implication that it did not want preemption as to drugs. (Justice Thomas, ordinarily no friend of plaintiff’s lawyers, joined the majority for this reason.) Indeed, the FDA did not even claim preemptive authority until 2006, and even then did so in a most elliptical and unexplained manner.
Right. And if Congress doesn’t like the outcome, at least 8 justices believe that it can pre-empt state jury verdicts in such cases if it chooses. I give credit to Schuck for recognizing that the law doesn’t always accommodate his dislike of the tort system, but it makes the framing of the rest of the article even more bizarre. The Supreme Court created and authorized nothing; it issued a narrow ruling that left the existing system in place and left Congress with the authority to re-alter the federal balance of powers if it chooses. Seems unexceptionable to me.
Diana Levine, a professional musician, developed gangrene after taking Phenergan through a direct injection and had her arm amputated below the elbow. A jury in Vermont held that the drug’s manufacturer had failed to provide sufficient warning about the risks inherent in injecting the drug. The company appealed, arguing that because the drug and label were FDA-approved, the suit was “pre-empted” by federal law. I fully expected the Supreme Court to side with the manufacturer.
Happily, I was mistaken. The Court today held 6-3 that no federal law pre-empted the Vermont civil verdict. Stevens’s majority opinion didn’t deny that the federal government could pre-empt such suits, but held that there was not, in fact, any federal pre-emption:
In short, Wyeth has not persuaded us that failure-to-warn claims like Levine’s obstruct the federal regulation of drug labeling. Congress has repeatedly declined to pre-empt state law, and the FDA’s recently adopted position that state tort suits interfere with its statutory mandate is entitled to no weight. Although we recognize that some state-law claims might well frustrate the achievement of congressional objectives, this is not such a case.
Chamber of Commerce favorite Stephen Breyer concurred to express his disdain for torts but agreed that there was no pre-emption in this case. The surprise vote in favor of Levine came from the Court’s most principled conservative, Clarence Thomas, who argued for a revision of federal pre-emption doctrine that would narrow federal power. Inevitable vote for the business interest Sam Alito wrote the dissent, joined by Roberts and Scalia.
It probably would not shock you to know that under the Bush administration the Forest Service sold timber for logging without the legally required notice, comment and appeal provisions because of a recent regulations declining to apply these requirements to smaller parcels of land. The government settled a suit brought by several environmental organizations, but seeing that these regulations could be re-applied in the future, the Ninth Circuit held that these regulations were illegal.
This being an environmental case, however, on Tuesday a 5-4 majority on the Supreme Court overruled the 9CA, holding that the groups did not have standing to challenge the legality of the regulations. Given the apparent long-standing “principle” of the Court’s conservatives that in marginal cases standing will be determined by whether or not granting standing will lead to results on the merits that the court’s conservatives will like, this outcome cannot be considered surprising. As Breyer argues in dissent, however, it’s difficult to defend:
These allegations and affidavits more than adequately show a “realistic threat” of injury to plaintiffs brought about by reoccurrence of the challenged conduct—conduct that the Forest Service thinks lawful and admits will reoccur. Many years ago the Ninth Circuit warned that a court should not “be blind to what must be necessarily known to every intelligent person.” Applying that standard, I would find standing here.
Hopefully, the Obama administration will address the immediate problem by acting to repeal the illegal regulation.
[X-Posted at TAPPED.]
This interesting-looking (well, to me) Slate book club reminds me that I just read another recent book about Marbury that attempts to at least partially debunk the decision that Sloan apparently puts on a pedestal. I think at this point it’s worth distinguishing between two branches of of Marbury revisionism. The first attempts to attack the legal underpinnings of the decision (Marshall’s craftsmanship, ethics in taking the case, etc.) For reasons that I will become evident, I’m not really interested in this question.
The second branch of revisionism holds that the effects of Marbury have been greatly overstated, and that it did not “establish” judicial review in any meaningful sense. This branch of revisionism — advanced by scholars such as Mark Graber and Sandy Levinson — I agree with 100%. Marbury was a case of minor significance. Marshall made some unoriginal arguments in favor of judicial review, held that a relatively trivial clause in a federal statute was unconstitutional, and completely capitulated to Jefferson in resolving the case (as he would do consistently throughout his tenure.) To put it in Graber’s terms, judicial review of any political consequence requires a number of elements: judges, jurisdiction, litigants, authority, capacity, independence, and compliance. Some of these were established by the Constitution, more were established (or sometimes given) by elected officials. None were established by Marbury. Moreover, Marbury was rarely cited by the Court until judicial review was already well-established, and for the remainder of Marshall’s tenure he never issued an important ruling whose outcome was inconsistent with the preferences of ruling political elites, even if he had to make implausible legal arguments to do so.
Goldstone, however, is a revisionist only in the first sense; he is critical of the opinion and is skeptical about whether judicial review can be justified but seems to uncritically accept the received notion that Marshall single-handedly established the “awesome” power of judicial review. And, of course, if you don’t accept this assumption the question of whether Marshall’s reasoning is correct ceases to become very interesting, although some of Goldstone’s history is worth reading. What’s odd about Goldstone’s book is that he looks carefully at the surrounding cases, without seeming to notice how flatly they contradict the notion that Marbury “established” judicial review. Like most, he understands Marbury as essentially a capitulation to Jefferson, but he also discusses numerous other examples: most importantly, Stuart v. Laird, the case decided immediately after the alleged fountainhead of American judicial review in which the Marshall Court rolled over and accepted the repeal of the Judicary Act of 1801, which — because it abolished federal circuit courts — the justices all quite plausibly thought was unconstitutional.
Goldstone’s book is valuable to the extent that explores many underdiscussed cases in which the Marshall Court let the Jeffersonians have their way to save face. But so strong is the myth of Marbury that he never stops to consider about what these other cases say about the actual impact of this alleged landmark, or about how “awesome” a power that requires the ongoing support of the other, stronger branches to be relevant is.
As was widely expected, the Supreme Court today that Pleasant Grove, Utah’s unwillingness to display a monument erected by the Summum did not violate the religious group’s free speech rights. Alito, writing for the Court, argued that “the placement of a permanent monument in a public park is best viewed as a form of government speech.” Once the action is held to fall into the “government speech” category, there was no First Amendment violation, as the government (while it may be required to provide neutral access to public fora) is not required to be impartial when speaking itself, as long as its speech is consistent with the Establishment and Equal Protection clauses.
In an interesting concurrence, however, Justice Stevens attempted to draw some useful distinctions between today’s case and previous cases held to be in the “government speech” category. For example, Altio’s opinion approvingly cited Rust v. Sullivan, in which the Court narrowly held (over three dissenting opinions, including one by Stevens) that the infamous “gag order” that prevented any medical professional receiving federal family planning funds from even discussing abortion with a patient did not violate the First Amendment. As Stevens points out, however, there’s a major difference between the two cases: the gag order interfered with private speech, which today’s decision did not, as Pleasant Grove didn’t do anything to prevent the Summum from displaying a monument on their own property. I agree with Stevens that today’s decision is sturdier than many of the much more dubious “government speech” cases.
For one last go-round, I’ll respond to a couple of the creative attempts in comments to justify essentially indefensible life tenure for judges. Essentially, all of these arguments are “largely speculative effects that would be trivial even if they existed with no attempt to balance them against the very real and identifiable costs of life tenure.” First, there’s this:
On the specific case of Brown, of course judicial term limits would have made no difference to the outcome. The one justice from the Deep South was perhaps the decision’s strongest supporter. Somehow, I doubt that Robert Jackson was pondering a run for political office from his deathbed, and of course since he was from New York political considerations would have made him less likely to dissent. Term limits would have forced Stanley Reed to leave a whole year earlier than he did — when he was 73. And what’s true specifically is true in general — to believe this is a relevant factor requires as many implausible assumptions piled on top of one another as the ticking time bomb scenario. You would need 1)enough justices to change a vote 2)considering a run for political office although they’re likely pushing or past 70, 3)and for whom political considerations all end up changing rather than reinforcing their vote. And then, of course, any justice who was concerned about political office can just resign anyway (Douglas certainly would have had FDR put him on the ticket, which was apparently considered), so it’s not like life tenure would cause such alleged effects to vanish. Let’s just say it’s a risk I’m willing to take.
Most of this false choice comes from the idea that a (rare in modern times) case in which a judge resigns or dies on office before 18 years represents some huge problem. Of course, it’s fairly easy to deal with –have a retired justice sit in, the historically common practice of leaving a seat vacant, temporary non-renewable appointments — and at any rate there can be no question that term limits produce a much less arbitrary distribution of appointments than life tenure, so this objection obviously doesn’t fly. The bigger problem is that the false choice assumes that liberal democracies that have fixed, staggered terms (which is to say, most of them) don’t have “judicial independence.” This is really silly. Part of the problem here, perhaps, is a failure to understand that judicial independence is a relative, rather than an absolute, concept. If such marginal effects could mean that we don’t have “judicial independence,” I hate to break this to you, but the United States doesn’t have it. Various aspects of the constitutional system — most notably the fact that courts rely on other actors to implement their decisions, and the ability of Congress to control federal jurisdiction and increase the size of courts — are far, far more of a problem to “judicial independence” than speculative, marginal effects cause by the fact that a few judges might want to start lucrative private sector careers instead of just retiring on their generous pensions at age 71.
Again, if anyone has actual evidence that courts in most other liberal democracies aren’t meaningfully independent in a way that American courts are, please point us to it. Otherwise, it’s pretty clear that the benefits of term limits outweigh the costs.
I have some thoughts about Ruth Bader Ginsburg’s Supreme Court tenure over at Comment Is Free.
Sandy Levinson makes the argument again. Before I get to some potential objections, I think a couple points should be emphasized. First, it’s abundantly clear that life tenure is in no way a requirement of liberal democracy — as Levinson notes, the United States is an extreme outlier among constitutional democracies, and non-renewable terms with good pensions are clearly sufficient to protect judicial independence. Second, there are some very clear costs associated with life tenure. The most important are 1)the possibility that judges will stay on although they clearly no longer have the capacity to serve (which is not hypothetical; cf. Rehnquist and Douglas) and 2)the fact that what presidents get appointments is a random process that leads to a skewed composition of the courts (again, not hypothetical; Nixon got twice as many appointments in six years as Carter and Clinton got in twelve, with real political consequences.) The fact that younger judges can serve longer compounds this arbitrariness.
So what advantages could life tenure have that could outweigh the undeniable costs? One potential response is nightmare scenarios. With all due respect, this response has to be considered highly unconvincing. It should first of all be noted that the alleged bad consequences involved in a president appointing five justices depends entirely on an unlikely 15-year limit rather than the much more likely 18-year limit (one every two years.) And, of course, a two-term president could easily get 4 or 5 appointments under the current system anyway. But more importantly, it simply misunderstands the nature of judicial power, which is by its nature politically marginal and dependent on the other branches. First of all, if the other branches of government started to agree with Thomas that the New Deal was unconstitutional, it wouldn’t matter what the Supreme Court thought because they could just repeal the programs. Nor would I be worried about the return of the “Constitution-in-Exile,” because if the Court tried to impose pre-1936 constitutional rules in the current polity it would stick for about 10 minutes. The judiciary will never win that kind of power struggle with the political branches, and this is just as true when they have life tenure as when they have long term limits. (And, of course, if the courts were violently out of step with the political branches the government could easily make life tenure irrelevant by just adding more justices to the Court.) I also think it exaggerates things greatly to say that Bush v. Gore proved that the courts are all-powerful, since after all the only political actors who could have challenged the Court agreed with the Court. If the Court had also decided McCain v. Obama, that would be different, but of course they wouldn’t. I don’t think that such hypothetical are very useful. (And, of course, it ignores the other sie of the coin: situations like the New Deal when reactionary holdovers of the old regime obstruct political change strongly favored by the elected branches.)
Another argument about judicial independence is that judges who have to retire will be more corporate-friendly because they will need jobs after they retire. Again, this is exceptionally implausible. Retired judges will have full-salary pensions and very promising employment prospects should they choose too, and are also unlikely to have many working years ahead of them. Any judge who would be so strongly motivated by such trivial and hypothetical future financial gains would never agree to serve on the Court in the first place.
Levinson is right: life tenure (which, it should be noted, was much less problematic when being a federal judge wasn’t a very good job and life expectancies were shorter) involves many costs with essentially no benefits. The country would be better off if it were done away with.
The comments here focusing (correctly) on the age of potential judicial appointments — a problem given that current norms favor appellate judges and there hasn’t been a Democratic president for 8 years (and moreover that president mostly had a Republican Senate and didn’t make judges a high priority) — reminds me that it would be much better for justices to be appointed to fixed, non-renewable terms. This would (largely) fix the problem of some presidents randomly getting more appointments than others and age being given an inappropriate priority in nominating decisions.
A couple of commenters in the previous thread have asked about who I’d like to see chosen if (God forbid) Ginsburg is forced to leave the Court. I addressed this in a post a while back. I still like Kagan, but I assume Obama would want her to get more seasoning as Solicitor General, and that’s OK with me. Of the other candidates being mentioned, based on what I know, I find Diane Wood an especially attractive possibility. Jennifer Granholm is interesting. Myself, I think someone with her background would be a useful addition to the Court, but Obama may be reluctant to go against recent norms that emphasize judicial experience and I don’t feel strongly enough about Granholm to object very strongly. Kathleen Sullivan would also be a good pick; she has a lot of expertise in the LBGT issues likely to be more important in the federal courts in coming years and has a solid record.
Dahlia Lithwick makes the case for a liberal of the Brennan/Marshall variety (although I suppose the best analogy to Scalia would be William O. Douglas.) Unfortunately, I think she’s also convincing when she says that “[m]y own guess is that moderate, centrist Barack Obama is unlikely to name any such creature to the high court.” I think this point from the Adam Liptak piece she cites deserves emphasis:
Justice John Paul Stevens, the leader of the Supreme Court’s liberal wing, likes to say that he has not moved to the left since he was appointed to the court by President Gerald R. Ford in 1975. It is the court, Justice Stevens says, that has moved to the right.
“Every judge who’s been appointed to the court since Lewis Powell” in 1971 “has been more conservative than his or her predecessor,” Justice Stevens said in a 2007 interview. He added that Justice Ruth Bader Ginsburg might have been the sole exception but included himself as one of those 11 ratchets to the right.
According to a study last year by William M. Landes, who teaches law and economics at the University of Chicago, and Judge Richard A. Posner of the federal appeals court there, four of the five most conservative justices to serve on the court since 1937, of a total of 43, are on the court right now: Chief Justice John G. Roberts Jr. and Justices Scalia, Clarence Thomas and Samuel A. Alito Jr. The fifth was Chief Justice William H. Rehnquist, whom Chief Justice Roberts replaced in 2005.
The study took into account the votes in divided cases on ideologically charged issues like criminal procedure, civil rights and the First Amendment. Justice Thomas, the most conservative justice in the study, voted for the conservative position in those cases 82 percent of the time. Justice Marshall, the only other African-American to serve on the court, was by this measure the most liberal, voting for the conservative side 21 percent of the time.
The study also reinforced Justice Stevens’s caveat, counting Justice Ginsburg as more liberal than the justice she replaced, Justice Byron R. White. But Justice Ginsburg, whom the study identifies as the most liberal current justice, barely makes the Top 10 in the full tally.
There’s a tendency to think of what can be loosely called the “liberal” and “conservative” wings of the Court as being roughly symmetrical. But that just isn’t the case; a liberal wing whose anchors are a Gerald Ford Republican and a someone whose most common voting partner as a Court of Appeals judge was Ken Starr are the liberal equivalents of Scalia and Alito and Thomas, but they just aren’t. This represents what may be the best opportunity to start to balance the scales for a long time, and Obama should take it.
Meanwhile, for your Friday comedy fix, Ann Althouse says that “I can’t help thinking Lithwick is running interference for some very liberal nominee to come. She has a strategy to portray that person as actually a moderate, someone to whom fair-minded conservatives should not object.” Given that Lithwick is being completely explicit about the distinction between more and less moderate liberals, this makes no sense. But you may remember Althouse’s (necessarily evidence-free) op-ed arguing that Sam Alito was a moderate to whom fair-minded liberals could not object. I believe this is called “projection.”
[X-Posted to TAPPED.]
Ruth Bader Ginsburg has had surgery for pancreatic cancer. As noted, “[s]he was treated for colon cancer in 1999 and did not miss a day on the bench,” so her departure from the Court is not necessarily imminent, but obviously our thoughts should go out to her.