There Is No Such Thing As a Legal Progressive

At the Kagan confirmation hearings today, Senator Sessions (R-AL) had some tetchy back and forth with the Supreme Court nominee. One of the questions that has been getting a lot of coverage in the media and blogosphere, however, was when Sessions asked Kagan if she was a “legal progressive.”

A what? Legal progressive? What the heck is that?

Is it… a progressive who does law? In which case, of course Kagan is one. But that can’t have been what the term was meant to imply — a phrase like “legal progressive” suggests some sort of theory of jurisprudence, not merely a description of a progressive who happens to have a JD.

When I heard Sessions use the phrase, I blinked a couple times. Which I’m sure Kagan was probably doing, too. And then I tried to figure out what on earth he was talking about.

Legal positivist, legal realist, legal pragmatist, legal formalist, natural law theorist, critical legal studies theorist, legal hermeneutics — I’m pretty familiar with all those, and I could probably rattle off a few more “legal X-isms” if I spent some more time thinking about it. But “legal progressive” I’ve never before come across. So I was sort of relieved when Kagan acknowledged that she hadn’t a clue what it meant, either.

Google seems to agree with me and Kagan. A search for the term does not reveal any web page using the phrase that is not actually in reference to Kagan’s nomination, or else refers to something entirely unrelated. I’ve now clicked through 12 pages of Google results for “legal progressive,” and I cannot find even one that suggests such a pre-Kagan judicial philosophy has ever existed.

In response to Kagan’s semi-confused queries about what he meant, Sessions responded, “Well, it means something, and I would have to classify you as someone in the theme of a legal progressive.” One would think that if the term really meant ‘something,’ and if Sessions knew what this ‘something’ was, he would’ve elaborated. But regardless of what Sessions’ personal understanding of the term is, I am relatively certain that if “legal progressive” had a pre-Kagan meaning, it would have turned up within the top 10 pages of Google results.

Even those using this exchange as proof that Kagan is being deliberately obtuse at best, and a blatant liar at worst, can offer no proof that the term has any academic significance. The original source of the term appears to be Joe Biden’s Chief of Staff, who stated, “Elena is clearly a legal progressive… She’s got a pragmatic perspective.” As best I can tell, the VP Chief of Staff coined the term on the spot, or else was confusing it with Posner-style legal pragmaticism. (In which case, if Kagan truly is one, by all means, hurry up and confirm her!)

But no one has been able to step forward and offer a definition for the jurisprudence of legal progressivism.

Mostly because, well, it doesn’t exist. There is no more a judicial philosophy known as “legal progressivism” than there is one called “legal regressivism.” Kagan was right not to answer the question, because any answer she could’ve given would’ve been factually wrong — someone cannot be a follower or non-follower of a judicial philosophy that has yet to be created.

Hollow and vapid, indeed.


One Latin Cross in the Desert, Protected by the Extraordinary Efforts of Congress

Salazar v. Buono [PDF] has been released — and the Sunrise Cross gets to stay.

A Kennedy-Alito-Roberts plurality found that the lower courts were in error when they found that the Government’s transfer of the land to a private party was not permissible. I’ve only been able to read over the plurality and concurrences, and Breyers’ dissent, but here’s my initial take on it.

Kennedy, writing for the three, is almost convincing. I’m not even sure I disagree with the legal analysis. But the factual findings that form the underpinnings of Kennedy’s argument — that no act of religious endorsement has occurred here — are not credible. Kennedy spends a great deal of ink arguing that legislation passed by Congress to protect an unconstitutional establishment of the Christian religion was not in fact religiously motivated. Instead, he insists, this was all a secular misunderstanding — Christianity is not even implicated here, it’s just a war monument! The message conveyed by the cross, and Congress’ decision to save the cross, “assessed in the context of all relevant factors,” signifies only respect for veterans, not respect for Christian sentiment. “One Latin cross in the desert,” Kennedy concludes, “evokes far more than religion.”

I’m not buying it.

Anyone who believes that that the extraordinary lengths undertaken by Congress to preserve the Sunrise Cross were motivated by anything other than a desire to protect Christian symbolism is being deliberately myopic. Would Congress have ever gone to similar lengths to protect a Wiccan alter on Federal land? No. Never. And if anyone else out there thinks otherwise, well, I’ve got some CDOs backed by subprime mortgages I’d like to sell you.

But, to be fair to Kennedy, it’s true that Congress’ decision to transfer the cross to private land, taken by itself out of context, does not pose much of a threat to the Firth Amendment. But it is less the transfer itself, and more the institutional bias towards the protection of Christianity, that is the true problem here. That is where the government endorsement of religion comes from; that is what the harm under the Establishment Clause lies. As a legal matter, I have a hard time finding too much fault with Kennedy’s opinion — but I also believe there is a violation of the spirit of the Constitution here, even if not the letter. The single disputed act at issue in Buono might not mean much, but set into the cultural and institutional history of the United States, it is part of a widespread pattern and practice of religious establishment. Although Kennedy’s opinion focuses extensively on taking the Sunrise Cross “in context” of the surrounding circumstances to find that it is not really a religious symbol, Kennedy completely ignores that taking Congress’ efforts to preserve a cross “in context” with Congress’ wider history of religious protection shows a government whose religious preferences are at the heart of its decision.

The abstract and non-concrete nature of the harm caused by the cross under the Establishment Clause, Chief Justice Roberts, in his one page concurrence. Roberts thinks that there is no dispute here that is worth the Court’s consideration, as it is all a dispute over symbolism and vague feelings of hurt, and not a dispute over any concrete, non-symbolic injury. As the Constitution “deals with substance, not shadows,” there is no First Amendment problem to speak of. And to a certain extent, I actually agree with Roberts’; the shadow-problems in Buono are not so much about a specific substantial and obviously unconstitutional violation of the First Amendment, but rather about pervasive governmental effort to protect shadows of Christianity over the shadows of all other religious beliefs.

Alito’s opinion irks me the most. It is full of sentimental claptrap and light on legal reasoning. He uses heartwarming anecdotes to suggest that, because America is so wonderful and tolerant of diverse religious practices, there is no harm in giving the Government a little slack when it comes to showing a tiny bit of bias for Christianity. To do otherwise, he argues, would be “interpreted by some as an attesting symbol of a Government that is not neutral but hostile on matters of religion.”

No, Justice Alito. It would have been interpreted by the voters of many Congressional districts to show a government hostile not to religion in general, but a government hostile to Christianity in particular. And hostility to Christianity is not an electorally popular platform.

The First Amendment, however, does not permit the Government to engage in protection of religious symbolism that happens to be favorable to a Representative’s chances of reelection, while simultaneously declining to protect those religious symbols for which protection would be politically harmful or neutral.

But Alito seems to think the fact that protecting crosses is so popular means it cannot be religious favoritism. “It is noteworthy,” he writes, “that Congress, in which our country’s religious diversity is well represented, passed this law by overwhelming majorities: 95-0 in the Senate and 407-15 in the House.”

The whole point about having a Constitution, though, is that the popularity of a given legislative act is entirely divorced from whether or not it is constitutionally permissible. Not to mention, the idea that “religious diversity is well represented in Congress” is so laughable, I won’t even bother to debunk it here; there are plenty of other sites that have already taken care of that.

In the end, it is the concurrence of the Scaliomas that comes closest to winning me over. While regretfully noting it would be a shame for the litigants to come all this way only for the Court to be unable to hear the dispute on the merits, their opinion would resolve the case on standing grounds alone. The harm to the plaintiff, they argue, is the presence of the cross on Federal land. The cross is no longer on Federal land. Ergo, no Article III case or controversy and no Supreme Court jurisdiction.

Scalia argues that the real harm being argued in this case, the harm that the parties and the other Justices are focusing on, is the harm in having Congress selectively protect Christianity. However, Scalia points out, that harm is not the harm the original injunction addressed, and the injunction cannot expand. Because Buono initially claimed injury as a result of the cross’s presence on federal land, he cannot now argue before the Supreme Court that he is injured instead by Congress’ religious favoritism in passing the Sunrise Cross act.

But in counterpoint to that argument, Breyers, too, limits his analysis to whether or not the injunction had been properly interpreted by the District Court. Unlike the Scaliomas, however, Breyers finds that the District Court was well within its rights to find that the Government’s actions violated the injunction that had been in place. Although I’d want to spend more time with it to make up my mind, right now I am definitely leaning towards Breyers on this one. True, my knowledge of injunction jurisprudence is pretty limited, so this based mostly on the premise that “parties should not be allowed to engage in creative subterfuge and sketchy dealings to avoid injunctions.” But as made-up legal doctrines go, that’s a pretty sound one to follow.


Samantar v. Yousuf, Last Minute Thoughts

There are two questions in Samantar v. Yousuf that I suspect almost certainly will not get addressed in the morning, at least not in any substantive way, but I’ll post them here now in the hope that I am wrong and I’ll be able to talk about them in greater length tomorrow. These would be:

(1) The statehood of Somalia v. Somaliland, and the ability of the former to adopt the acts of officials that took place in a territory it no longer has any control over, outside of legal fiction. Obviously even if they do bother with the question, the Court will end up punting it to the political branches and making their recognition the be-all end-all, but I would still love to see statehood get addressed in one of the Justice’s opinions. Even better would be for the Court to address the factual issues regarding Somalia or Somaliland’s existence or non-existence, but I won’t hold out hope for that.

(2) The Constitutional question of FSIA’s purported grant of personal jurisdiction over state officials via service of process. If petitioner succeeds on his arguments, there could be a problem with FSIA’s provision for service of process over foreign states — namely, service of process (done anywhere, not just tag-service) is considered sufficient for obtaining personal jurisdiction over a state. But if officials = state for purposes of the FSIA, allowing mere service to create personal jurisdiction for foreign official defendants would create a Constitutional due process issue.

I mostly want #2 to be addressed because I would love to see the Supreme Court finally address the giant gaping inconsistency in U.S. law that is our personal jurisdiction jurisprudence. Since personal jurisdiction is a question of Fifth (or Fourteenth) Amendment due process, if petitioner prevails, we could, at least theoretically, wind up with some interesting issues of the “Constitutional rights” of foreign states that have never had contact with the U.S.

At any rate, I’m sure there will be some amusement to be had tomorrow, out of the slight irony in the case that the side most heavily relying on the support of international law and argues that the court should find it has expansive powers to decide the questions involved is the side hoping that the Court does not find jurisdiction to hear an ATS/TVPA claim, while the side that is calling for a strict adherence to the separation of powers and arguing that any judicial interference would result in Dire Consequences is the side hoping that the court does hear the underlying claim. Strange bedfellows, and all that.

For what it’s worth, I’m rooting for the respondent. Jurisdiction should be found here — to do otherwise would lead to absurd results. That a given defendant claims to have been some sort of official office holder for some sort of government that may have once existed is not sufficient to give him a blanket claim to immunity in U.S. courts. Rather than making this a jurisdictional matter, this case should be heard on a substantive level, with the act of state doctrine helping to provide the proper rules of decision.

Plus, finally, the fact Samantar cherry picks between the multitude of “Somali” governments to find a couple that support his claim is hilarious. If you’re trying to claim sovereign immunity, referring to “the transitional governments,” plural, of your supposed State does not much help your case. If any warlord in Somalia with enough followers can claim to be the sovereign, why on earth should the FSIA or international law believe that Samantar managed to siphon off some immunity for himself?


Standing, Remedies, and Establishment Clause Violation Through Disparate Impact

Out of guilt from shooting down my co-blogger’s noble campaign to get me to go to the Salazar v. Buono hearing this morning (I am sorry, but I do not get out of bed at 5:30am for the Establishment Clause), I figured I’d make up for it by at least writing a little about the case.

If you want to know more about Salazar, check out Scotuswiki’s write up, but, in brief: smallish cross on federal preserve, National Park Service decided to take it down, Congress forbid the use of any federal funds in taking it down, Buono sued under the Establishment Clause, court agreed with Buono, cross was put in a box, Congress sold the land the cross was on to a private group, government alleges that fixed any problem, Buono kept suing alleging that the transfer was invalid, district court ageed, Ninth Circuit agreed, now they argue about it before SCOTUS.

The mere selling off of the property doesn’t fix things by itself. The federal government maintains some control over the cross still as they designated the cross a national memorial. One of only 45 in the U.S. It’s pretty clear Congress took special measures to save the monument because it was a cross — no one could in good faith believe they’d take such attentive care of it has it been depiction of Ganesh. Moreover, government ownership or non-ownership of the monument is not itself dispositive — in last term’s Summum decision, Judge Alito noted that “persons who observe donated monuments routinely—and reasonably—interpret them as conveying some message on the property owner’s behalf . . . . This is true whether the monument is located on private property or on public property, such as national, state, or city park land.”

Besides, a general hallmark of private speech is the ability to change the content of your speech or to cease speaking all together. The owners of the Sunrise Rock Cross have no such ability. Under 18 U.S.C. §1369, they would apparently be committing a federal crime if they tried to change or destroy the monument. So it’s not really “private” speech if the government is requiring the speech, on penalty of imprisonment.

But ignoring the merits for now, I want to take a look at the procedural issues. On appeal, the government is raising two issues: first, that Buono lacks requisite standing as his harm is “ideological” rather than “religious,” and second, Congress’ transfer of the land the cross is on to a private party successfully remedied any constitutional problems that had existed.

mojavecross1The standing issue is actually pretty interesting, especially Buono’s arguments that the court lacks jurisdiction to hear Salazar’s argument that Buono lacked jurisdiction. Buono alleges that (1) If the government wanted to appeal the standing issue, it had to do so within 90 days of Buono I (2004), which they did not, and (2) Anyway that claim is barred by res judicata. As for the merits as to standing, basically, in these lines of cases, plaintiffs’ allege injuries that boil down to some version of “but it hurts my feelings.” Offended sensibilities normally do not provide for standing, but in the context of the Establishment Clause, a lot of the time offended sensibilities truly are going to be the biggest injury suffered — so if “offense” isn’t particularized enough of an injury, a huge chunk of EC violations will be immune to review.

But let’s say we get through all the procedural arguments, hear it on the merits, and Buono wins. What is his remedy now?

One issue arises from what Buono himself alleges the harm to be. Buono, a Roman Catholic, has specifically stated he has no particular objection to the displaying of religious symbols on government property, he just thought that the preserve should be open to displays of all faiths. (A Buddhist group requested and was denied permission to put up their own monument in 1999). So the most straight forward remedy to Buono’s injury wouldn’t really be simply chucking out the old monument, when in itself its not causing the harm.

So conceivably it could be remedied by simply allowing any religious group that wanted to put up a monument to do so. Now, this is Not Going To Happen. Once people from kooky sects all over the place start showing up asking permission to put up their monument of their god, which just happens to resemble sexually explicit imagery/depictions of Jesus as a cyborg/Prince Philip, Duke of Edinburgh, they will quickly reach a decision to remove all religious imagery rather than allow any. (Mojave has 1.6 million acres — you can fit a lot of religious paraphernalia in there if you were going to allow that.)

And I don’t think the Court would find (assuming again the Court manages to wade through all the standing issues to get there, which is doubtful) that any Establishment Clause violation is fixed simply by removing all further government interest in the monument, such as its designation or the federal ability to continue to regulate it. The major issue is that the cross strongly appears to be government endorsed speech, removing a few additional government entanglements won’t solve that. So the remedy would be to remove the cross.

Now, although the land was sold off, the government still maintains a number of interests in the cross, including a property interest in the possibility of reverter, which was provided for under the bill that decreed the land transfer, § 8121. Ignoring how this concerns the merits of the case, how might this it affect any possible remedy assuming a violation is found?

In Salazar, that’s all pretty clear. The district court enjoined the actual land transfer, even though the “mechanics” of it were completed, so the Supreme Court could simply uphold the injunction. Even if the sale could not be enjoined, thanks to the cross’s status as a monument, there are a number of other ways the government could be ordered to take back control of the land and remedy the violation. From the Ninth Circuit’s opinion,

Even if the land were transferred under § 8121(a), it may revert to the government under § 8121(e), or as provided in other statutes. In particular, we noted that 16 U.S.C. § 431 authorizes relinquishment of lands containing “national monuments” to the federal government, and 16 U.S.C. § 410aaa-56 authorizes the Department of the Interior to “acquire all lands and interest in lands within the boundary of the [Mojave] preserve by donation, purchase, or exchange.”

But what about in a case where this isn’t clear cut? I don’t know enough about this area of law to predict what would happen, but it seems to me there are some seriously thorny issues that could arise here, in a similar case where the transfer is not enjoinable and there are no other statutes that can be used to get it back.

What’s to stop the government from building a couple dozen giant statutes on various federal lands that declare “Ahura Mazda is Our Lord”, and then selling off all the patches to private bidders? Assuming all the formalities of the sale are complied with, fair consideration is given by the private party, etc., what remedy would even be available? Would there now be a Takings Clause issue, if the government were ordered to take the land back and take down the Ahuras? What if the properties have changed hands a few times since the initial transfer? Or it had been twenty years? Or if the new owners “promised” to take down the monuments, but kept randomly putting them back up from time to time? I think this is my primary issue with the government’s case in Salazar: it proves too much. And trying to fix any mess created would not be a simple task.

Finally, for a brief note on the actual merits–

Cases like Salazar are fairly frequent, and the vast majority of them involve the government displaying Christian symbols and refusing to allow non-mainstream-Christian faiths to display their own. The pattern is unmistakable — the government will defend to its last legal breath its ability to display indicia of adherence to the Christian faith, but not any other symbol of religious worship. It’s the pervasive pattern, rather than any one odd cross up on a hill somewhere, that causes the Establishment Clause concerns. No, the Sunrise Rock Cross does not in itself a threat to religious liberties or the First Amendment, but the disparate impact of the government’s choice in which monuments to defend is itself a violation of the Establishment Clause.