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Notes -
In other SCOTUS news, we have four more opinions published today.
Two of the cases involve very similar issues--Section 1983 claims for retaliatory arrest and malicious prosecution--but for some reason the breakdown of Justices is different.
Gonzales v. Trevino: A per curiam opinion, with separate concurrences by Alito, Jackson, and Kavanaugh, and a dissent by Thomas. Gonzales was arrested and charged with stealing government documents, based on her allegedly attempting to make off with a city council petition (possibly to cover up that she obtained some of the signatures on the petition under false pretenses). Alito's concurrence helpfully summarizes the facts of the case, and, in an unusual move, even includes links to Youtube videos of the incident! (Here and here, for your viewing pleasure). Gonzales admits that there was probable cause to arrest her, but she claimed her arrest was in retaliation for her protected speech criticizing other city officials. The relevant precedent, Nieves v. Bartlett, says that probable cause defeats a retaliatory arrest claim unless the arrestee can show that other people, who allegedly committed the same crime, were not arrested (which would imply that the arrest was motivated by the arrestee's speech, rather then genuine law enforcement concerns). Gonzales presented evidence that other people ... had been arrested, for slightly different crimes, but nobody had been arrested for doing exactly what she allegedly did (with no evidence that anyone else had ever tried to do exactly what she allegedly did). To me, this evidence seems irrelevant to the Nieves exception, which requires a showing that similarly-situated people were treated differently, which is not what Gonzales' evidence showed. But the majority decided it was good enough to, at least, merit further consideration by the lower court.
Chiaverini v. City of Napoleon: Kagan writes for the majority, Thomas dissents joined by Alito, Gorsuch writes his own dissent. A jewelry store owner allegedly bought a stolen ring. He was charged with receiving stolen property, dealing in precious metals without a license, and money laundering. Prosecutors later dropped the charges. Chiaverini brought a 1983 claim for malicious prosecution--which, again, requires proof that the government lacked probable cause to arrest him. The lower court threw out his claim because the first two charges were "clearly" supported by probable cause, even if the money laundering charge was not. The Supreme Court reversed, holding that if even one of the charges was not supported by probable cause, Chiaverini could have a valid claim. Both Thomas and Gorsuch, in dissent, seem to agree that malicious prosecution is not properly considered a constitutional claim for section 1983 purposes--the main difference is that Gorsuch relies on an opinion he wrote while a judge on the 10th circuit Court of Appeals.
Diaz v. United States: A case about expert witnesses in criminal trials. The most interesting thing about this case is that Thomas wrote the majority opinion, Jackson concurred, and Gorsuch wrote the dissent, joined by Sotomayor and Kagan.
Moore v. United States: A mind-numbing income tax case. Kavanaugh wrote the majority opinion, Jackson concurred, Barrett concurred joined by Alito, and Thomas dissented alone as is his wont. Most interesting to me, however, is the publication of a "statement" by Justice Alito, concerning Senator Richard Durbin's sending a letter to Chief Justice Roberts "urging" him to "ensure" that Alito recuse himself in the case. Durbin's letter was ostensibly based on the view that Alito could not be trusted to decide the case without bias, because David B. Rivkin, an attorney for the Petitioners in the case, once interviewed Alito for the Wall Street Journal. Alito points out that the mere fact he was interviewed does not give rise to a presumption of bias. In addition, he points out that Durbin's letter seems like a suspiciously isolated demand for recusal: Alito provides a half-dozen footnotes detailing the numerous times his colleagues on the Court have been interviewed by media companies and then gone on to decide cases wherein those media companies were parties. I had fun reading this, but I'm sure politicians will continue making baseless demands for recusal on similarly flimsy pretexts.
Looks like SCOTUS has added more days to it's current session, and might release more opinions next Friday. I've been itching for Grants Pass to come down, so that's giving me some hope.
Haven't heard about the potential Chevron reversal yet, right? Are they saving the most controversial for last? Yikes, I hope not. I really hope it doesn't reverse.
If you’re suggesting that a Chevron reversal will backfire on the right, I couldn’t agree more.
And the courts.
My probably oversimplified understanding is that we'd go from
to
and create a massive additional workload for judges and government agencies both... and private business too, as a matter of fact, because changing and unpredictable regulations are often worse for business than consistent but annoying regulations. Do I have that right?
Except that’s now how it works at all in practice. No in practice agencies scratch and claw to find a hint of ambiguity and then claim they are entitled to chevron deference. While some courts actually do a hard look, many courts just quickly pass.
Also, I work in an environment that is heavily controlled by regulations. I promise you such regulations change and change rapidly. Frequently removing the ability for agencies to take creative readings likely will lead to more stable law. At least this should be testable.
Third, even if you remove chevron you still have things like Skidmore deference. The government when it issued regulations per the APA has to explain the regulation. If the government provides a compelling argument for its position than the court will accept it. That’s different from chevron where even if the government doesn’t provide a compelling reason often the courts will have to accept it.
Finally, current admin law has it almost backwards. The courts take a much harder look at facts and a much more deferential look at law. The whole idea being the administrative state is they are experts in facts. Overturning Chevron helps (but is not the end of the story) restore the court to its proper role as the expert on law.
PS killing chevron probably will make congress write more laws if there is a desire to regulate more. That seems like a good thing to me.
Great comment. Worth noting, however, that in terms of time and caseload, currently the courts do have it easy. Reversing Chevron will almost without a doubt increase the workload on judges and leave agency workload near unchanged. I'd be highly surprised if this wasn't the case. In that sense, reversing Chevron might, as a practical matter, backfire on courts, including the SC. Isn't the "better" option that courts step up and take a "hard look" at these creative interpretations more pro-actively?
If the court is doing a hard look, then there really shouldn’t be much incremental work (ie the court already needs to use the traditional tools of statutory construction to try to determine what the text means). But the problem is if you let courts be lazy by providing Chevron deference they will be, even if you say “but we really want you to validate there isn’t a better read.”
Note the legal system writ large (as opposed to more narrow parts of law) have been taking the APA more seriously. This has caused regulations to be deemed invalid. One of the criticism ls of these approaches is that it will cause a lot of work! But the response is the law is the law. I see it similarly.
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This was also a comment from a Circuit Court (I think the 9CA) on a set of labor law decisions where the presidential appointees on the NLRB would flip flop between two sets of precedents every so often. And hence both the opinion and the opposite opinion are inside Chevron, the courts can not prevent the actual policy from bouncing back and forth every 4-8 years.
Let me see if I can find it.
Yeah. The changes are subject to State Farm review but A&C is relatively easy to get around (eg we don’t believe that is a fair reading of the law).
I think the average American doesn’t understand just how much of law making is regulatory and how relatively limited recourse there is (because ultimately there is a single executive). Gutting chevron won’t fully change that but it is, as they say, a start.
I think you are correct on your opinions. Reading me makes me feel that this is true : “Constitutional Democracy doesn’t scale”
Nothing in the regulatory state feels Democratic to me. I guess you could say it all flows thru the executive to gain Democratic legitimacy but it’s definitely not Constitutional Democracy.
If humans were smarter perhaps we could all understand the details of every regulation and run that thru our congressmen but we are not.
I feel confident saying the regulatory state would not pass muster on what the founding fathers believed they were passing. But I don’t know what the other option would be.
One improvement potentially improvement might be direct election of all the regulatory heads. You would add more partisan politics but atleast the people would be picking the heads.
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