The Docket

The Prospect's legal affairs blog

Putting a Limit on Justice


The right’s outrage over Obama’s comments on the Supreme Court are hypocritical. All Obama said was the truth: It would, indeed, be unprecedented for the Supreme Court to overturn Obamacare, signifying a new interpretation of the powers granted to Congress under current Commerce Clause precedent. The president in no way insinuated that he would ignore the ruling, a fact verified by Attorney General Eric Holder in response to an outlandish request by a Reagan appointee on the Fifth Circuit. It was, however, somewhat disheartening to see Obama questioning the court by terming them an “unelected group of people,” as that legitimizes language typically employed by conservatives anytime the courts read the Constitution as protecting some form of social equality.

Judicial Review Doesn't Mean What You Think It Means

(AP Photo / J. David Ake)

Last night while I was asleep, highly placed sources whom I cannot identify (because they don’t exist) assured me that Attorney General Eric Holder originally wrote this first draft of a letter he was ordered to submit to Judge Jerry Smith of the Fifth Circuit. The final letter has quite a different tone. But those of us who cherish the rule of law can dream that he might have actually sent Judge Smith the following instead.

Judge Jerry E. Smith
Circuit Judge
Fifth Circuit Court of Appeals

Dear Judge Smith,

An Unreasonable Search for Justification

(AP Photo/Mel Evans)

Under the Fourth Amendment of the Constitution, searches and seizures must be "reasonable." Albert Florence was subjected to an invasive search—including an inspection of his genitals—after being detained following a routine traffic stop for an outstanding arrest warrant (that turned out to be invalid) before being moved to a correctional facility. The state had no evidence that he was carrying any dangerous contraband. Not only did it not have a warrant, not only did it not have the probable cause that would have been necessary for a warrant, it had no individualized suspicion at all. Florence had no reason to believe he would be arrested, and hence no reason to have weapons hidden in his body cavities. Surely such an intrusive search under these circumstances is "unreasonable," right?

Judging With Double Standards

Wikimedia commons

Sonia Sotomayor and Samuel Alito had virtually identical formal credentials—Princeton undergrads, Yale Law School, long careers on the federal bench.

Don't Wish For Judicial Overreach

Wikimedia Commons.

Given the hostility the Republican appointees on the Supreme Court showed to the Affordable Care Act during oral arguments this week, some progressives are seeking a silver lining. At least, some have argued, striking down the ACA would substantially undermine the legitimacy of the conservative-dominated federal courts.

The Nine Circles of the ACA


Nobody was doing well by the time oral arguments in the Health Care cases ended at 2:30 p.m. Wednesday. Some Justices were sniping back and forth. The lawyers were showing the strain.

And Justice Antonin Scalia was telling jokes. 

“[Y]ou know—the old Jack Benny thing, Your Money or Your Life, and, you know, he says ‘I'm thinking, I'm thinking,’” Scalia said from the bench. “It's—it's funny, because it's no choice. ... But ‘your life or your wife’s,’ I could refuse that.”

“He’s not going home tonight,” Justice Sonia Sotomayor threw in as the crowd laughed.

Verrilli's Courage Under Fire

(AP Photo/Evan Vucci)

On December 10, 1935, during oral argument before a hostile Supreme Court, then-Solicitor General Stanley Reed collapsed at the lectern. (He recovered and went on to serve on the Court himself.) Let history show that Solicitor General Donald Verrilli did not stagger yesterday under a Four Horseman-style onslaught of conservative questioning that seemed to leave the government without a path to victory in the “minimum coverage” phase of the Health Care Cases.

The Unsurprising Possibility that the Court Could Strike Down the ACA

Wikimedia Commons.

I was somewhat surprised, prior to this week's oral arguments, how optimistic some of my favorite legal and political observers were about the outcome of the Affordable Care Act case being argued at the Supreme Court this week.

Pre-Game's Over. Now Begins the Health-Care Fight.


What if you bought a ticket to The Hunger Games and ended up watching Life Cycle of the Soybean?

That may describe the feelings of bemused citizens listening to today’s recorded oral argument on the first of three days of hearings in the case against the Affordable Care Act. Instead of death panels and broccoli patrols, they got to hear a discussion for law nerds about statutory construction and the definition of “tax.”

Will the Supreme Court Duck Health Care?

Wikimedia commons

The great legal theorist Alexander Bickel advocated that courts use "passive virtues"—that is, using invented jurisdictional reasons to not hear politically contentious cases.

Now Is the Law of Their Discontent


To paraphrase Ecclesiastes, of the making of many briefs there is no end, and much study is a weariness of the flesh.

Precedents for the Unprecedented


Here are quotes from an anguished brief filed with the United States Supreme Court: “the present statute . . .departs markedly from any prior statute sustained as an exercise of the commerce power. . . .” It “is incapable of being regarded as within the scope of any of the other statutes or decisions.” Further, “there is no statutory precedent to support the Solicitor General's position in this case.” That position “is founded on a concept of the interstate commerce clause which has never been recognized by the Courts. While the wisdom of legislation is a matter for the Congress it is within the Court's proper prerogative to look with deep concern at an assertion of power never heretofore upheld.”

"That's Specious Reasoning, Representative"

Illinois Urban Landscapes Project, via Flickr Creative Commons.

Many of you will know this classic scene from The Simpsons, when Homer celebrates the expensive "Bear Patrol" created by city government as an overreaction to a single bear getting into the city:

The Roberts Court Joins the War On Women

Wikimedia Commons

When Daniel Coleman asked for sick leave from his job at the Appeals Court of Maryland, he was told he would be fired. The state's actions violated the Family and Medical Leave Act (FMLA), passed by Congress in 1993. Unfortunately, thanks to the Roberts Court, Coleman has a right without an appropriate remedy. A bare majority of the Supreme Court held Tuesday that while Coleman's statutory rights were violated, he cannot sue the state of Maryland for damages. Once again, the conservatives on the Supreme Court have prioritized "states' rights" over human rights.

The History of Florida's "Stand Your Ground" Law


Seventeen years ago, in Springfield, Oregon, a local mechanic went into a fast-food restaurant, walked up behind a man eating lunch, and shot him to death in the back of the head.

A local grand jury refused to indict the shooter. There had been no altercation, no sign that the man shot was carrying a weapon. But the shooter believed that the victim had threatened his daughter. And the dead man was, in the words of the local district attorney, “a violent man, a drug dealer by trade.”

Maybe the shooter should have left it to the police, the district attorney said, but the victim should also have “moderated his behavior.”