Fwd: Re: Scalia disavows Boerne

Tue May 18 08:14:03 PDT 2004

>Date: Tue, 18 May 2004 11:12:56 -0400
>To: Earl Maltz <emaltz at camden.rutgers.edu>
>From: Sam Bagenstos <bagensto at law.harvard.edu>
>Subject: Re: Scalia disavows Boerne
>Cc: conlawprof at lists.ucla.edu
>
>I must have missed something.  Justice O'Connor REALLY likes the 
>ADA?  That'll be a big surprise to my friends in the disability rights bar!
>
>But seriously, I don't get this idea that these Boerne cases are so 
>irreconcilable.  The case for prophylaxis really was stronger here and in 
>Hibbs than in the previous cases.  If you're going to say that Congress 
>has some (not unlimited) prophylactic power -- and Justice Scalia's really 
>the only one who has expressed disagreement on that point -- then the 
>pattern of results the Court has reached is certainly within the bounds of 
>reasonable debate, even if you or I might disagree with one or another of 
>the decisions.
>
>
>
>At 10:51 AM 5/18/2004 -0400, Earl Maltz wrote:
>>While we are trashing people, how about Justice O'Connor, who has now 
>>fully embraced the principle that the Eleventh Amendment imposes limits 
>>on federal power except with respect to statutes that she REALLY likes.
>>
>>At 10:31 AM 5/18/2004 -0400, you wrote:
>>>I'm of course with Marty in thinking that Justice Scalia's Lane dissent 
>>>is hardly the most important news from the Court yesterday, but I'm 
>>>intrigued by it anyway.  (I like "how low can he go.")  Three (perhaps 
>>>cynical) points:
>>>
>>>1.  Justice Scalia says he joined Boerne "with some misgiving" and is 
>>>only abandoning it now because experience has shown that the C&P test 
>>>leads to "judicial arbitrariness and policy-driven decisionmaking" and 
>>>brings the Court "into constant conflict with a coequal branch of 
>>>government."  Yet Justice Scalia certainly knows how to express 
>>>misgiving when he wants to, and he never expressed any misgiving about 
>>>the C&P test in any opinion until this case.  It's hard to take 
>>>seriously the idea that Justice Scalia just figured out that the C&P 
>>>test brings the Court into constant conflict with Congress -- that was 
>>>clear in Boerne.  And Justice Scalia's new test (no prophylaxis outside 
>>>of the race context) would seem to create a greater Court-imposed 
>>>restraint on Congress.  So what has Justice Scalia just 
>>>discovered?  That C&P cases are "arbitrary" and "policy-driven" -- by 
>>>which he seems to mean that he can't trust his colleagues to vote 
>>>consistently to limit congressional power.  Although Justice Scalia 
>>>tries rhetorically to assert a kind of principled high-ground here, I 
>>>find it kind of interesting that he's deciding to "stick to his 
>>>principles" only after he found that the "unprincipled" approach he 
>>>previously supported didn't work out as expected by getting him the 
>>>results he wanted.
>>>
>>>2.  It looks like Justice Scalia was kind of boxed in here.  Given his 
>>>over-the-top defense of the Salerno principle in cases like Romer and 
>>>Morales, he couldn't really go with the Chief in saying that the C&P 
>>>analysis looks to the statute on its face.  (It's hard to make a truly 
>>>convincing argument that facial challenges are OK here but not 
>>>there.)  And given the powerful constitutional rights at issue in the 
>>>narrow courthouse-access context of Lane, and the significant record 
>>>(which is only touched on in the Court's opinion) of inaccessible 
>>>courthouses, if there was ever a case for prophylaxis this would be 
>>>it.  So that left Justice Scalia with only the option of saying no 
>>>prophylaxis ever.  In other words, this is a case where the C&P test 
>>>couldn't get to the Congress-limiting result -- not because of 
>>>arbitrariness but because it's just a core case of prophylaxis.
>>>
>>>3.  But is anyone really convinced by Justice Scalia's ultimate 
>>>position?  No prophylaxis, except where race discrimination is in 
>>>view?  As a textual matter, Section 5 of course makes no distinction 
>>>between race discrimination and any other conduct that violates the 
>>>"provisions of this article."  Justice Scalia just relies on stare 
>>>decisis to draw the distinction.  But of course none of the relevant 
>>>cases actually draw the distinction.  He's just saying that the Court 
>>>has upheld prophylactic Section 5 legislation only in the race 
>>>discrimination context.  Except for Hibbs, which was too recent and 
>>>wrong for the Court to have to follow.  Oh yeah, and James Everard's 
>>>Breweries, which involved the almost identically worded enforcement 
>>>clause of the Eighteenth Amendment.  So Justice Scalia has to jump over 
>>>at least two cases to get to his stare-decisis-motivated amendment to 
>>>the text of Section 5's enforcement clause.  And then he adds the new 
>>>"requirement that Congress may impose prophylactic s 5 legislation only 
>>>upon those particular States in which there has been an identified 
>>>history of relevant constitutional violations."  (I say it's a new 
>>>requirement because he cites in support only Morrison -- which didn't at 
>>>all turn on the question -- and the dissents in Hibbs and Morgan.)  That 
>>>requirement would overturn the part of Oregon v. Mitchell that upheld 
>>>the nationwide literacy test ban.  So it's hard to see Justice Scalia's 
>>>approach as really supported by stare decisis.
>>>
>>>At 10:49 PM 5/17/2004 -0400, Marty Lederman wrote:
>>>>Well, I agree that Justice Scalia's disavowal of the Boerne 
>>>>"proportionality and congruence" test -- and his proposal to further 
>>>>eviscerate section 5 in all but race-discrimination cases -- is 
>>>>interesting, in a "how low can he go?" sort of way.  But it's hardly 
>>>>the most important news of the day, or even the most important news 
>>>>about constitutional law emanating from the Supreme Court.  No other 
>>>>Justice joined Scalia's opinion, and I think it's a fairly safe bet 
>>>>that none of us will live to see the day when the Court adopts its 
>>>>reasoning.  On the other hand, in addition to the momentous 
>>>>constitutional developments that are breaking daily with respect to the 
>>>>Executive's unilaterally imposed detention and interrogation policies 
>>>>and practices, there were several truly important federalism-related 
>>>>developments at the Court today, including the following:
>>>
>>>
>>>
>>>>Samuel Bagenstos
>>>
>>>Assistant Professor of Law
>>>Harvard Law School
>>>Cambridge, MA  02138
>>>(617)495-9299 (voice)
>>>(617)496-4867 (fax)
>>>_______________________________________________
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>
>Samuel Bagenstos
>Assistant Professor of Law
>Harvard Law School
>Cambridge, MA  02138
>(617)495-9299 (voice)
>(617)496-4867 (fax)

Samuel Bagenstos
Assistant Professor of Law
Harvard Law School
Cambridge, MA  02138
(617)495-9299 (voice)
(617)496-4867 (fax)
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