Hon. Robert H. Bork Memorial Lecture: Toxic Political Polarization and the Judiciary – Judge Thomas B. Griffith

Posted by on Jun 19, 2024 in Obiter Dicta, Per Curiam

Hon. Robert H. Bork Memorial Lecture: Toxic Political Polarization and the Judiciary – Judge Thomas B. Griffith
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Toxic Political Polarization and the Judiciary

Judge Thomas B. Griffith (ret.)*

I am honored to be here today and especially to speak in a lecture series that honors the memory of Judge Robert H. Bork.

We are all indebted to Ed Whelan for his Confirmation Tales column. Forgive my self-indulgence in telling you my story. It features Judge Bork in a prominent role.

Although it was far from a pleasant experience, my Senate confirmation experience was smooth sailing compared to the tempestuous proceedings others have endured. For that I am grateful. In fact, I was surprised that I was not asked some hard questions, which in hindsight seem indispensable to the Senate properly performing its constitutional duty to give the president “advice and consent” on his judicial nominations. For  example, I should have been asked my views on how a judge ought to interpret the Constitution (“Are you an originalist, a legal realist, a believer in the ‘living Constitution’”?), read statutes (“Do you favor Eskridge’s ‘dynamic’ interpretation, or are you a textualist?”), and apply regulations (“Is Chevron deference an abdication of the judicial role or a properly deferential response to a delegation of legislative power from the Congress to the executive branch?”). I don’t recall a single question along any of those lines. Except one.

That question came early in the process, even before the president had nominated me. I was invited to the White House to interview with Alberto Gonzales, counsel to President Bush, and several of his colleagues in the West Wing. The interview went well, and I was told afterwards that it would be helpful to my chances if I could show that I would have the support of the Republican and Democratic Senate leaders I had worked for as Senate legal counsel, the nonpartisan chief legal officer of the United States Senate. I went immediately to see Senator Orrin Hatch, then the chairman of the Senate Judiciary Committee, who, I was happy to learn, was willing to be an enthusiastic supporter.

Next was a visit with Senator Harry Reid, then the whip of the Democratic conference, who was similarly encouraging. Senator Reid insisted that I meet with Democratic leader Senator Tom Daschle. I had come to know Senator Daschle well during my time as a staffer, and we both respected and liked one another.

As is often the case when meeting with a busy senator, especially when not part of his planned schedule, I had to wait for a while in his office. Upon learning that I was waiting to see Senator Daschle, his chief of staff kindly invited me into his own office for a pleasant reunion in which we recalled projects we had worked on together. Senator Daschle briefly joined us, greeted me with a warm hug, and voiced pleasure that I was under consideration for an appointment to the D.C. Circuit. It was all very heady stuff.

But there was another person in the room who I did not know personally. He had not been on Senator Daschle’s staff while I served the Senate. I did know, however, that he was the architect of the Democrats’ strategy to filibuster some of President Bush’s judicial nominees, including the nominee whose withdrawal from consideration created an opening for me. (The gray hairs among us will recall that was Miguel Estrada. Yes, I’m what you get when you really want Miguel Estrada on the D. C. Circuit, but Senate Democrats wield the filibuster. In short, I’m an argument for or against the filibuster. Feel free to tell me later and in private which you think I am.)

When Senator Daschle left the room, this staffer started asking me questions to probe who I was. Predictably, he asked me which judge had most shaped my thinking about the law. “John Marshall,” I said, assuming that was a safe answer. But that was not the tough question. He added, “Other than John Marshall.” I paused for a moment. That was the tough question because the answer was Robert Bork, but I hesitated to confess this to the architect of the Democrats’ filibuster strategy. Judge Bork was anathema to many progressives. The smoke from his confirmation battle lingered still in Senate hallways.

With more than a little anxiety and imagining that I was about to write my own chapter in Profiles in Courage, I mustered strength and answered truthfully: “Judge Bork. I agree with his views about the role of a judge.”

There was a slight pause in the conversation. I was certain that I had just thrown away my nomination hopes. But I was wrong. Sensing my anxiety, the staffer assured me that my answer was acceptable. “Don’t worry, Tom. We understand that President Bush gets to appoint conservatives to the bench.” Emboldened by that response, I declared myself an acolyte of Robert Bork throughout the confirmation process. It must have worked. I was confirmed by a wide margin.

I became aware of Robert Bork during my first year of law school at UVA. I remember the moment when I pulled Volume 47 of the Indiana Law Journal from a shelf in the library and began reading Neutral Principles and Some First Amendment Problems.[1] I do not want to make too much of the moment. No heavenly choir or rushing wind accompanied my reading. But I don’t want to make too little of it either. I found Judge Bork’s approach to the Constitution and to the role of judges in our democratic republic immensely satisfying. In those pages I found, for the first time I can remember, an articulate rebuke to much of what I had been learning in law school about how judges should do their work under the Constitution.

Consider this summary of Judge Bork’s views, cobbled together from his writings and with some editorial license on my part. It will be familiar. It used to be creedal among conservatives:[2]

The United States was founded as a Madisonian system, which means that it contains two opposing principles that must be continually reconciled. The first principle is self-government, which means that in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities. The second is that there are nonetheless some things majorities must not do . . . some areas of life in which the individual must be free of majority rule.

In these latter areas, majorities cannot rule, “no matter how democratically [they] decide[] to do [so]. These are areas properly left to individual freedom, and coercion by the majority in these aspects of life is tyranny.” The structure of the Constitution places the all‐important “function of defining the otherwise irreconcilable principles of majority power and minority freedom in a nonpolitical institution, the federal judiciary.” Placing this function with the courts creates “the seeming anomaly of judicial supremacy in a democratic society. If the judiciary really is supreme, able to rule when and as it sees fit, the society is not democratic.” For that reason, “[i]t is as important to freedom to confine the judiciary’s power to its proper scope as it is to confine that of the President, Congress, or state and local governments. Indeed, it is probably more important, for only courts may not be called to account by the public.”

Judge Bork relie[d heavily] on the seminal article by Professor Herbert Wechsler, Toward Neutral Principles of Constitutional Law,[[3]] originally delivered as the 1959 Oliver Wendell Holmes Lecture at the Harvard Law School. According to Wechsler, “the deepest problem of our constitutionalism” is laid bare when courts function as a “naked power organ.” This occurs when a judge, who is supposed to apply the law, “lets his judgment turn on the immediate result”—that is, whether the outcome advances a cause he personally favors as a citizen. To avoid this problem, Wechsler insists that judges must resolve the cases before them according to “neutral principles—by standards that transcend the case at hand.”

Rather than impose their own value determinations, in every case, judges must derive, define, and apply generally applicable neutral principles gleaned from authoritative legal texts.

In short, according to Judge Bork, the structure of the Constitution, which places the lawmaking function with We the People through elected representatives, demands that judges be neutral.

The day after the Senate confirmed my nomination to the D.C. Circuit, I was the happy recipient of many congratulatory messages. One came from a former law partner who had clerked on both the D.C. Circuit and the Supreme Court, and whose judgment I valued. “Tom,” he asked, “may I give you some advice about being a judge?” Eager to learn, I anxiously waited to hear what he had to say. “The first day of my clerkship on the D.C. Circuit, my judge told me, ‘This is how we go about our work: We learn the facts of the case as best we can, then we think long and hard about the fair outcome, the equitable disposition, the just result. Once we have figured that out, we go find law to support our conclusion.’ From what I have observed,” said my friend, “that is how most judges go about their work, and rightly so.”

Because the call’s purpose was congratulatory and not an invitation to engage in an extended discussion of the role of a judge under the Constitution, I thanked my friend for his counsel, but as I hung up the phone, I took a vow that I would do my best to heed his advice to learn the facts of the case, but never heed his advice to decide cases by my own carefully-developed sense of the common good.

With my friend’s experience in mind, I took a different approach to my clerks’ first day in chambers. I would hand them a binder of readings. The first entry was 47 Indiana Law Journal 1. Something like the first chapter of Genesis.

Which brings me to our present moment.

I was not on the campus of Yale Law School in April 1982 for the first event of the Federalist Society, but soon thereafter I became an avid supporter, and over the years have spoken at dozens of chapter events on law school campuses across the nation and on numerous panels at the National Lawyers Convention. I’ve even done some heavy lifting behind the scenes to protect the Federalist Society. What Leonard Leo and Gene Meyer and others have done to transform the American legal landscape is breathtaking.

But I have some concerns. Back in the day, it was dedication to the idea of Judicial Conservatism that inspired us. We would work ourselves into a frenzy, jumping up and down, arms clad in a circle while chanting “Neutral principles! Neutral principles! Neutral principles!”

Yet, from some of the talks I hear at Federalist Society gatherings these days, I wonder if maybe I stepped out of the room at a key moment and missed the explanation that we would talk about neutral principles so long as progressives were in control, but once we got our people on the bench—once we had judges who were political conservatives—we would abandon Judicial Conservatism.

I understand the appeal of “judicial engagement” to pursue one’s sense of “the common good,” but I’m here to urge us to resist that temptation. You will recognize the following from Professor Vermeule’s influential article, “Beyond Originalism.”[4]

[O]riginalism has now outlived its utility, and has become an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation. . . . It is now possible to imagine a substantive moral constitutionalism that . . . take[s] as its starting point substantive moral principles that conduce to the common good, principles that [judges] should read into the majestic generalities and ambiguities of the written Constitution. . . .The sweeping generalities and famous ambiguities of our Constitution . . . afford ample space for substantive moral readings that promote peace, justice, abundance, health, and safety.

My friend Chief Judge William Pryor has ably pointed out the danger in this approach.[5] I add my “Amen” to Judge Pryor.

It seems that Professor Vermeule’s model jurist is not Judge Bork or Justice Scalia, but Justice Douglas. Indeed, Professor Vermeule’s “sweeping generalities and famous ambiguities”[6] sounds a lot like Justice Douglas’s “penumbras, formed by emanations.”[7]

“Common good originalism” is what Judicial Conservatives have been fighting all this time. The only difference between this approach and the Living Constitution espoused by progressives is the political result their proponents seek.

Although I might cheer some of the results that emerge from such an approach, that is not the role of the judge that Judge Bork envisioned or that the Constitution requires. If we’re willing to sacrifice principled legal thought for the sake of what is, make no mistake, political expediency, then we’ve given up the fight for an independent judiciary. We will have encouraged the courts to function as the “naked power organ” Wechsler and Bork warned against and thus will wreak havoc on our democracy.[8]

On those courts where progressives are in the majority (and they will be; the pendulum ever swings), they will quote Professor Vermeule to impose their own vision of the common good based on their own moral principles.

Professor Vermeule’s approach reminds me of the oft-quoted colloquy in Robert Bolt’s play, A Man for All Seasons. (Justice Scalia would quote this to his students at the University of Virginia in a rousing finale of the course.) The gray hairs among us remember the scene.[9] Thomas More’s family, spurred on by his zealous future son-in-law Will Roper, urges the arrest of Richard Rich because he is a bad man.  (Forgive my poor attempt at acting.)

Margaret: Father, that man’s bad.

More: There is no law against that.

Roper: There is! God’s law!

More: Then God can arrest him.

Alice: While you talk, he’s gone!

More: And go he should, if he was the Devil himself, until he broke the law!

Roper: So now you’d give the Devil benefit of law!

More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I’d cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned round on you—where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast— Man’s laws, not God’s—and if you cut them down—and you’re just the man to do it—d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.

(As an aside, I read this colloquy to my law clerks the day my opinion was released in House Judiciary Committee v. McGahn.[10] Look it up. You’ll see why I did.)

Years ago, I was honored to moderate the Rosenkrantz Debate at the National Lawyers Convention.[11] The disputants were Hadley Arkes (my dear friend and soulmate in so many ways) and Judge Alex Kozinski. The question was whether judges should use the natural law. Hadley went first and, typically, he was eloquent and hilarious. Judge Kozinski followed. As I recall, his reply was brief. It went something like this: “Hadley, I don’t disagree with a single thing that you said about the natural law. I have only one response to your argument that judges use the natural law: Steven Reinhardt! You want to invite Steven Reinhardt to use the natural law in his decisions?” I’m sorry Hadley, but in my view, Judge Kozinski won the debate that day.

The issue isn’t whether there is natural law. I’m a Christian. Of course there is. The issue, as Judge Sutton constantly reminds us, is “Who decides?”[12] And the project of Judicial Conservatism, as I have understood it and tried to practice it, has been to keep the scope of the judiciary’s power within the confines the Constitution requires so as to preserve democratic values.

But this is not the only threat to Judge Bork’s view of the role of the judge. Although my embrace of Judge Bork wasn’t a stumbling block to my confirmation in 2005, the times have changed, and now we see a full-throated attack on his approach from progressives. I doubt that my public embrace of Judge Bork would have been given a pass in my confirmation proceedings had I been nominated in 2019 instead of 2004. I witnessed this current hostility time and again as one of the few conservative members of President Biden’s Commission on the Supreme Court who made the enterprise “bipartisan.” (There were five or six of us out of a group of 36. Some criticized that imbalance. Others noted that conservatives were overrepresented in comparison to the typical faculty lounge.) Repeatedly, I would hear some of my fellow commissioners decry the Roberts Court as “illegitimate.” For many it was a mantra that preceded almost every comment. They seemed to subscribe to the view of Michael Klarman in his Foreword to the Harvard Law Review issue covering the October 2019 Term of the Supreme Court. He titled his article, without any nuance, “The Degradation of American Democracy—And the Court.”[13]

If you haven’t read Professor Klarman’s article, here’s my summary, which was first offered in my response to his Foreword, also published by the Harvard Law Review.[14]

Professor Klarman’s thesis is that conservatives have declared war on democracy. The Justices on the Supreme Court, he argues, “defend[] the interests of the Republican Party,” not because of any principled legal reasoning, but because of their “personal values” and “political calculations.”[15] Klarman’s solution to preserve democracy is straightforward. Democrats should win the Presidency and the Senate, then “entrench democracy”[16] against future Republican attacks with a series of bold moves: “ignore the constitutional provision mandating two senators for every state”;[17] “create[] new states to expand their advantage in the Senate and the Electoral College”;[18] replace the Electoral College with a direct popular vote;[19] and consider packing new seats on the Supreme Court and the lower federal courts with judges appointed by Democrats.[20] Needless to say, Klarman’s form of “constitutional hardball” would radically reshape our political system.[21]

Professor Klarman’s attack upon the independence of the judiciary is especially troubling. In his view, it is “probably inevitable” that “[l]iberal and conservative Justices” will not act as neutral arbiters of the law, but will instead “legally rationalize the outcomes they prefer” on controversial issues.[22] In discounting the possibility of an impartial judiciary, in abandoning that ideal, Professor Klarman embraces the unlikeliest of allies. I quote from his article: “One of the truest things President Trump has said in office is that there are ‘Obama judges’ and ‘Trump judges.’ Can anyone honestly think differently?”[23]

Actually, I do! Having served alongside judicial appointees of every President from Carter to Trump, I have seen firsthand that judges can and do put aside party and politics in a good faith effort to interpret the law correctly. The judges that I have known and with whom I have worked closely are committed to applying the law and not imposing their political preferences. I am not troubled by the fact that some judges read the New York Times instead of the Wall Street Journal. Most I know read both. Nor is it helpful to refer to “Republican Justices,” a phrase Professor Klarman uses over a dozen times. The historical fact of an appointment by a Republican President did not matter to the Justices who decided Hamdan v. Rumsfeld,[24] Bostock v. Clayton County,[25] Obergefell v. Hodges,[26] or NFIB v. Sebelius.[27] (It never mattered to Chief Judge Sutton either.)

It is no doubt cathartic to impugn the motives and the character of judges who have different political or philosophical commitments, but it does great damage to public confidence in the judiciary—the crown jewel of our constitutional institutions.

In the final opinion I wrote, I warned against the dangers of reflexively imputing political positions to judges based on the party of the President who appointed them.

The D.C. Circuit, sitting en banc, had voted to deny General Michael Flynn’s petition for a writ of mandamus compelling dismissal of the criminal prosecution against him. I joined the majority but wrote separately to emphasize that, despite the media’s hyperbolic coverage and the inflammatory descriptions served up by the conflict entrepreneurs of cable, the issue before the court was actually quite narrow and apolitical.[28] We were not asked to decide whether General Flynn’s prosecution was justified, nor whether political favoritism played an impermissible role in the government’s decision to stop pursuing that prosecution.[29] Instead, we were asked to answer a simple question: Should the court of appeals intervene and grant the government’s motion to dismiss before the district court had issued a decision?[30] Following established precedent, we declined to do so.

I wrote to challenge the view that would surely follow by some on cable that this decision was motivated by partisan impulses:

In cases that attract public attention, it is common for pundits and politicians to frame their commentary in a way that reduces the judicial process to little more than a skirmish in a partisan battle. The party affiliation of the President who appoints a judge becomes an explanation for the judge’s real reason for the disposition, and the legal reasoning employed is seen as a cover for the exercise of raw political power. No doubt there will be some who will describe the court’s decision today in such terms, but they would be mistaken. [The questions presented] are far removed from the partisan skirmishes of the day. [Their resolution] in this case involves nothing more and nothing less than the application of neutral principles about which reasonable jurists on this court disagree.[31]

(I then cited 47 Indiana Law Journal 1 as a somewhat self-indulgent but grateful tip-of-the-hat to the Great Man.)

What I wrote holds true for the vast majority of cases the federal courts hear. Judges may split along ideological lines, sometimes quite predictably, but partisanship is rarely, if ever, the explanation for that division. And where it might be, let’s not applaud that departure from the ideal, let’s call it out as a mistake. Justice Barrett has taken issue with those who claim that the justices are partisans in robes. Her evidence that they are not? “Read our opinions,” she challenges the critics.[32] Inspired by that challenge, I tell my students that I will not listen to their criticism of Obergefell (from the Right) or Dobbs (from the Left) until they have sworn by affidavit that they have read all of the opinions in the case. Twice. Such a careful reading shows diligent judges struggling with vexing legal issues in good faith. Justice Kennedy was not intent on destroying the traditional family. Nor was Justice Alito seeking to harm women. Each was trying to discover what the law required, and on that reasonable people can disagree.

These cases reveal the hard work that the Justices put into understanding the views of the parties and each other in an effort to reach the correct legal outcome. They demonstrate the Justices’ willingness to compromise and to sometimes decide cases more narrowly than they otherwise might for the sake of consensus. And they reveal that, even as the Justices work through difficult and contentious issues, they strive to engage in civil discourse and treat one another with respect. We all know of the relationship of mutual respect and affection between Justices Ginsburg and Scalia. But have we read Justice Thomas’s note to Justice Breyer upon his retirement or Justice Kagan’s tribute to Chief Justice Roberts last year at the American Law Institute? Do we know about the friendship between Justices Sotomayor and Barrett, which the latter described so movingly at last spring’s Rex E. Lee Award luncheon?

Among the American people, the judiciary remains the most respected of the branches of the federal government. Why is that? Might it be because the judiciary is the constitutional institution that engages in reasoned discourse most often? That is a model that Professor Klarman and progressives should embrace and not excoriate.

Just to be clear: I am no Dr. Pangloss. We do not live in the best of all possible worlds. Indeed, as I have written and as I include in almost all of my public remarks these days, I believe that the Republic is in peril on a number of fronts. I decry those who undermine confidence in the administration of our national elections by their baseless claims of fraud and conspiracy. Judge Luttig, Judge McConnell, Ben Ginsberg and I along with other conservatives wrote about this serious threat to the Constitution in our report Lost, Not Stolen: The Conservative Case that Biden Won and Trump Lost the 2020 Presidential Election.[33]

In fact, I am not confident that we will meet Benjamin Franklin’s oft-quoted challenge at the close of the Philadelphia Convention to “keep” the Republic the delegates had just created. As I see it, the greatest danger to the Republic is not misguided policy proposals but the rot of contempt that infects our body politic and has become the animating spirit of much of our public discourse. On that view of things, Professor Klarman’s jeremiad is no cure for the infection that ails the heart of our democracy. Indeed, the tone and manner of his complaint compound the problem.

America’s experiment in representative government has faced serious crises before. But the best models of how to navigate treacherous shoals have done so with what Matthew Holland calls “civic charity”—a settled intention to treat our fellow citizens as partners, even as friends, in a common enterprise, not as enemies.[34]

Start with the Philadelphia Convention of 1787 that created the Constitution. In July, the delegates faced the very real prospect of failure. Yet by mid-September, they had produced the charter that would be the basis for our enduring success as a nation. In his letter transmitting the Constitution to Congress, Washington attributed this surprising turn of events—what one popular account of the convention called the “Miracle at Philadelphia”[35]—to the “spirit of amity, and of that mutual deference and concession which the peculiarity of our political situation rendered indispensable.”[36]

Derek Webb does a deep dive into the meaning of Washington’s explanation in his article, The Original Meaning of Civility: Democratic Deliberation at the Philadelphia Constitutional Convention.[37] According to Webb, this “spirit of amity” was a commitment to civic friendship, even among political rivals from widely different geographical backgrounds.[38] That commitment was expressed in the practices of the convention. For instance, the Framers regularly dined together in Philadelphia’s taverns, and they carefully designed their deliberative processes so that they would listen to one another: attendance was mandatory, and while a delegate held the floor, the rules barred side conversations and even reading.[39] And the “mutual deference” to one another and the “concession” they practiced led to difficult compromises on contentious issues.[40] The “miracle of Philadelphia” was not a deus ex machina. It came about only because people made an effort to understand one another and were willing to give up some things they valued for the sake of unity.

The Constitution they created calls upon us to commit ourselves to the same principle—compromise for the sake of unity—that created the Union in the first place.

At the very least, we need to approach our deliberations with civility. But I believe the Constitution requires even more. As Arthur Brooks wryly observes, “Tell people, ‘My spouse and I are civil to each other,’ and they’ll tell you to get counseling.”[41]

We must be willing to compromise, even and especially over critical matters, if we are to continue this experiment in representative government. As Yuval Levin notes, “The American Constitution is intended to create . . . common ground.”[42] Its structure compels “Americans to be a little more accommodating of one another.  . . . It gives us practical experience in living and acting together.”[43]

The Constitution calls upon us to develop a temperament that doesn’t come naturally to most of us: humility. We must recognize that we might be wrong about what the common good requires, and that and our fellow citizens might be right. The canonical expression of this constitutional temperament is Judge Learned Hand’s speech The Spirit of Liberty, given in 1944: “The spirit of liberty is the spirit which is not too sure that it is right . . . which seeks to understand the mind of other men and women.” And most important of all, we need to see one another as friends—partners in a shared pursuit of the common good—rather than enemies.

That we must make the choice to see each other as friends and not enemies, is the teaching not only of the great religious traditions, but of some of our greatest American heroes. Michael Gerson observed: “The heroes of America are heroes of unity. Our political system is designed for vigorous disagreement. It is not designed for irreconcilable contempt. Such contempt loosens the ties of citizenship and undermines the idea of patriotism.”[44]

That idea surfaces again and again in key passages from American scripture. Winthrop on the Arbella, Jefferson’s First Inaugural, King on the steps of the Lincoln Memorial, Obama’s Red State/Blue State speech. Most famously, at the moment of the greatest peril to our national unity, Lincoln implored, “We are not enemies, but friends. We must not be enemies. Though passion may have strained it must not break our bonds of affection.”[45]

This high-minded idealism has sustained the United States in the past, and is, I believe, needed to pursue a “more perfect Union.” We must rededicate ourselves to the virtue of civic charity and commit ourselves to the view that we are not enemies, but friends. Without that commitment, this “government of the people, by the people, for the people shall . . . perish from the earth.”[46]

A healthy deliberative democracy depends to a large degree on accepting the premise that one’s political opponents are not evil. They are fellow citizens who hold their views in good faith and deserve respect, especially when we disagree about matters of fundamental importance. The enterprise of reasoned debate which the Framers of the Constitution knew was required to “keep” the Republic they had created becomes a fool’s errand when the presumption of good faith is abandoned and the other side consists of villains and demons. In that world, there is no reason to persuade, much less to listen. Arguments become nothing more than an instrument of political power, and the only sensible objective is to crush the other side. That is why it is so troubling that in our current political moment contempt has replaced disagreement. NYU’s social psychologist Jonathan Haidt warns, “[T]here is a very good chance that . . . we will have a catastrophic failure of [American] democracy. . . . We just don’t know what a democracy looks like when you drain all trust out of the system.”[47] I fear this is where we are today.

To an American nation deeply divided by toxic political polarization, former Utah Supreme Court Justice Dallin Oaks recently offered the most elegant explanation I have seen of what is required for citizens to heal this divide. “On contested issues,” he urged, “we should seek to moderate and to unify.”[48] In that straightforward and simple directive, Oaks captured the animating spirit that created the Constitution in 1787 and is necessary for its survival.

What does it mean to “support and defend” the Constitution in this environment? At the very least, it means that we will “support and defend” the rights protected by the Constitution and the structures of government it created. And on those counts, there is no group I know of that is more dedicated to those ends than the Federalist Society. But to “support and defend” means much more than that. It means that we will “support and defend” the values that gave life to the process by which the Constitution was created.  In Washington’s words: “the spirit of amity and of that mutual deference and concession that the peculiarity of our political situation renders indispensable.”

Shortly after I joined the D. C. Circuit, I was invited to attend a Heritage Foundation event that honored Judge Bork. I readily accepted. Only later did I learn that I was expected to sing for my meal. Not literally, but I was asked to give a toast to Judge Bork. Many of you are well versed in giving toasts. I’m not. I’m a tee-totaler. Who asks a tee-totaler to give a toast? Ed Meese does. It was a risky decision and I was nervous, not only because I was unfamiliar with the genre, but because Judge Bork would be sitting at the head table.

I will close my remarks with the words I used to conclude that toast:

When I sit as a member of the D. C. Circuit, I pull my robe from a locker across a narrow aisle from a locker that bears a brass name plate that says “Bork.” Then, I walk into a courtroom in which a Rembrandt-like portrait of Judge Bork hangs. He is watching — a brooding omnipresence. I am still an acolyte.

May God bless the memory of Robert Bork. And may God bless you and the United States of America.


* Retired judge of the United States Court of Appeals for the D.C. Circuit. This speech was delivered as the Hon. Robert H. Bork Memorial Lecture at the Federalist Society National Lawyers Convention on November 11, 2023.

[1] Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 1 (1971).

[2] The material in the next four paragraphs are taken from my essay, Thomas B. Griffith, Was Bork Right About Judges?, 34 Harv. J.L. & Pub. Pol’y 157, 158–60 (2011).

[3] Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1 (1959).

[4] Adrian Vermeule, Beyond Originalism, The Atlantic (March 31, 2020), https://www.theatlantic.com/ideas/archive/2020/03/common-good-constitutionalism/609037/.

[5] See William H. Pryor, Jr., Against Living Common Goodism, 23 Federalist Soc’y Rev. (April 2022).

[6] Vermeule, supra n.4.

[7] Griswold v. Connecticut, 381 U.S. 479, 484 (1965).

[8] Wechsler, supra n.3 at 12; see Bork, supra n.1 at 2.

[9] Robert Bolt, A Man for All Seasons 36–38 (1960).

[10] 968 F.3d 755, 782 (D.C. Cir. 2020) (Griffith, J., dissenting).

[11] The Federalist Society, Fifth Annual Rosenkranz Debate: Natural Law and Constitutional Law (Nov. 17, 2012), https://www.youtube.com/watch?v=uHJqoRwUAf8.

[12] See generally Jeffrey S. Sutton, Who Decides?: States as Laboratories of Constitutional Experimentation (2021).

[13] Michael J. Klarman, Foreword: The Degradation of American Democracy—And the Court, 134 Harv. L. Rev. 1, 1 (2020).

[14] Thomas B. Griffith, The Degradation of Civic Charity, 134 Harv. L. Rev. F. 119 (2020).

[15] Klarman, supra n.13 at 224.

[16] Id. at 231.

[17] Id. at 238.

[18] Id.

[19] Id. at 239–41.

[20] Id. at 246–47.

[21] Id. at 242.

[22] Id. at 230.

[23] Id.

[24] 548 U.S. 557 (2006).

[25] 590 U.S. 644 (2020).

[26] 576 U.S. 644 (2015).

[27] 567 U.S. 519 (2012).

[28] In re: Michael T. Flynn, 973 F.3d 74, 85 (D. C. Cir. 2020) (Griffith, J. concurring).

[29] Id.

[30] Id.

[31] Id.

[32] See Michael R. Blood, With divisive cases coming, Barrett says ‘Read the opinion’, Associated Press, Apr. 5, 2022, available at https://apnews.com/article/ketanji-brown-jackson-us-supreme-court-amy-coney-barrett-7aa20b34d9a3e133bf1e2e2a899476f2 [https://perma.cc/F359-TWLD].

[33] Danforth et al., Lost, Not Stolen: The Conservative Case that Trump Lost and Biden Won the 2020 Presidential Election (Jul. 2022) (accessible at https://lostnotstolen.org [https://perma.cc/2E86-RQ4H]).

[34] See Matthew S. Holland, Bonds of Affection: Civic Charity and the Making of America: Winthrop, Jefferson, and Lincoln (2007).

[35] Catherine Drinker Bowen, Miracle at Philadelphia: The Story of the Constitutional Convention, May to September 1787 (1969).

[36] Quoted in James Madison, Notes of Debates in the Federal Convention of 1787 (Adrienne Koch ed., 1984), at 627.

[37] 64 S.C. L. Rev. 183 (2012).

[38] Id. at 197.

[39] Id. at 192.

[40] Id. at 197 (quotation omitted).

[41] Arthur C. Brooks, Love Your Enemies: How Decent People Can Save America From The Culture Of Contempt 12 (2019).

[42] Yuval Levin, The Constitution and National Unity, Nat’l Rev. (Sept. 16, 2022) (emphasis omitted), https://www.nationalreview.com/2022/09/the-constitution-and-national-unity-go-together/ [https://perma.cc/7558-JM77].

[43] Id.

[44] Michael Gerson, A primer on political reality, Washington Post (Feb. 19, 2010), https://www.washingtonpost.com/archive/opinions/2010/02/19/a-primer-on-political-reality/8e95f6cb-12f4-4c45-9214-d3bbdda882d0/ [https://perma.cc/C5MM-W6L4].

[45] Abraham Lincoln, First Inaugural Address (Mar. 4, 1861) (accessible at https://avalon.law.yale.edu/19th_century/lincoln1.asp).

[46] Abraham Lincoln, Gettysburg Address (Nov. 19, 1863) (accessible at https://www.loc.gov/resource/rbpe.24404500/?st=text).

[47] Paul Kelly, ‘Very good chance’ democracy is doomed in America, says Haidt, The Australian (July 20, 2019), https://www.theaustralian.com.au/nation/politics/very-good-chance-democracy-is-doomed-in-america-says-haidt/news-story/0106ec1c458a0b5e3844545514a55b5a [https://perma.cc/4U8T-ZYKB].

[48] See Peggy Fletcher Stack, U.S. in a ‘perilous moment’—Legal experts debate LDS leader Dallin Oaks’ talk on the Constitution, The Salt Lake Tribune (Jun. 20, 2021), https://www.sltrib.com/religion/2021/06/20/us-perilous-moment-legal/ [https://perma.cc/LA2K-P4C9].


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The Missing Endpoint of Rule 609(b) – Bobby Levine

Posted by on Jun 10, 2024 in Per Curiam

The Missing Endpoint of Rule 609(b) – Bobby Levine
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The Missing Endpoint of Rule 609(b)

Bobby Levine*


Federal Rule of Evidence 609(b) (“609(b)”) limits when a lawyer can impeach a witness using their prior criminal convictions.[1]  To impeach a witness with a prior conviction that is more than 10 years old, there is a heightened standard for admissibility.  The judge must find that its probative value “substantially outweighs its prejudicial effect.”[2]  That language may sound familiar.  It is a specialized application of the far less demanding threshold of Rule 403.[3]  There is one problem.  The Federal Rules leave judges and lawyers unequipped to measure the age of a conviction.[4]  Judges are unable to determine which convictions are more than 10 years old.  This inadequacy requires judges to make purely policy-based decisions that inevitably lead to arbitrary outcomes for litigants and has fueled a circuit split.

Although the Federal Rules of Evidence provide a start date for measuring the age of a conviction—“the witness’s conviction or release from confinement for it, whichever is later”—inexplicably, there is no endpoint.[5]  There is nothing indicating whether a conviction must be 10 years old at the time of the events underlying the instant case, the time of arrest, or indictment, the start of trial, or the beginning of that witness’s testimony.  This ambiguity can cause real differences in whether courts deem impeachment proper, given that the life cycle of a federal case regularly spans a year or more.[6]

When does this problem arise?  Take the case where a criminal defendant pled guilty to an assault charge on January 1, 2010, and was not sentenced to a term of imprisonment. [7]  Law enforcement later caught him distributing illegal narcotics in January 2019, and a grand jury indicted him that same month.  As his case proceeded through discovery and motion practice, a little more than a year passed before the trial commenced in the spring of 2020.  Before the trial began, the government filed a motion in limine to impeach the defendant using his prior conviction for assault if he took the stand.  The judge’s decision will likely turn on whether the assault conviction is more than 10 years old and, therefore, must satisfy 609(b)’s heightened balancing test for admissibility.  609(b) instructs the judge to start the clock on January 1, 2010, the day the defendant was convicted of assault.  However, whether the conviction is more than 10 years old depends on when the clock stops ticking, which 609(b) leaves unanswered.[8]

The ambiguity in 609(b) leads to arbitrary evidentiary rulings.  Two similarly situated parties, convicted of the same crime on the same day and later at trial on the same issue, may receive different rulings because they are in a different circuit, district, or even just because they were assigned a different judge.  The prior conviction may be admitted in one instance and ruled inadmissible in the other because, as it is currently written, 609(b) requires judicial discretion to determine the endpoint of the 10 year period.  Because neither the text of the rule, the Advisory Committee Notes, nor the Congressional Reports help solve this problem, judges have no helpful basis for their decision.  They are forced to rely on their instincts as to which endpoint comports with the rule’s purpose and is most desirable from a policy perspective.  In other words, courts cannot look to proper sources of a rule’s meaning to deploy the interpretive tools they are accustomed to using.[9]  The solution that best remedies this lack of consistency and these arbitrary outcomes is to provide a bright line rule, a specific endpoint, for judges to follow in the Federal Rules of Evidence.

The admissibility of a prior conviction is significant because it provides powerful evidence that attacks the witness’s credibility.[10]  For example, defense attorneys often use Rule 609 to impeach the government’s cooperating witnesses in criminal cases when those witnesses have prior convictions.  It becomes a primary line of attack on cross-examination and often features in the defense’s arguments: The government’s star witness, the cooperator, cannot be trusted because of his criminal past.  Presenting evidence of a prior conviction works just as powerfully when the government attacks a criminal defendant with their criminal history.[11]  The import of a court’s admissibility determination under Rule 609 extends to often critical strategy decisions about whether to call a witness that will be subject to impeachment with their prior conviction.[12]

Age limits are everywhere and should be easy to implement.  Take, for example, airline tickets.  Many airlines place age restrictions on when toddlers need their own seats and flight tickets.  JetBlue’s policies specify that “[l]ap children under the age of 2 years old at the time of departure on U.S. domestic flights do not need to be ticketed.”[13]  JetBlue provides a workable rule.  If two years or more have passed between the child’s birth and the flight’s departure, the child needs a ticket.  The Federal Rules should mimic this clarity in its age restrictions.

Part I of this Essay will take a closer look at the text of 609(b).  Part II will offer relevant background information about 609(b) and walk through the Advisory Committee Notes and Congressional Reports.  Part III will describe the current lay of the land among the courts, including a circuit split on this issue.  Finally, Part IV offers independent analysis and ultimately suggests, contrary to recent scholarship,[14] that 609(b) should be amended to specify that the proper way to measure the age of a conviction is until the date of indictment in a criminal case or complaint in a civil case.

I.               The Text of 609(b)

The Supreme Court has deployed the same methods to interpret the Federal Rules of Evidence as it has any other legislation.[15]  Therefore, interpreting the Federal Rules of Evidence demands first looking at the plain meaning of the rule,[16] which means analyzing the text itself.[17]  Unfortunately, the rule’s text leaves the endpoint of 609(b)’s time limit ambiguous.

Rule 609(a) sets out the initial scope of impeachment by prior conviction: litigants can use the evidence to attack a witness’s character for truthfulness.  Rules 609(a) and 609(b) then set forth details regarding whether that evidence is admissible based on circumstances that may alter the probative value of the evidence or its prejudicial effect.[18]  609(b) is titled “Limit on Using the Evidence After 10 Years.”[19]  The body of 609(b) is divided into two subparts and reads as follows:

This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.[20]

The first sentence of 609(b) explains when the rule applies.  It provides a variable starting point that depends on the facts of the case.  One would expect to find the endpoint adjacent to the starting time.  Not only is it not in the vicinity of 609(b)’s specified start date, but the endpoint is not found in either subpart of the rule.  The first subpart describes the appropriate balancing test of probative value and prejudicial effect to determine the admissibility of convictions once a court has already determined that a conviction is over 10 years old.  Likewise, the second subpart of 609(b) imposes a notice requirement, which, again, is only relevant once a court determines that a conviction is more than 10 years old.

While one should first turn to the text to interpret a rule, searching for how to measure the age of a conviction in 609(b)’s enacted language is futile, given its total silence on half the equation—the endpoint.

II.             History, Notes, and Reports

Our judicial system has not always needed to grapple with when to allow impeachment using prior convictions because, at common law, felons or those convicted of misdemeanors involving crimen falsi (dishonesty) were not deemed competent witnesses.[21]  This bar on witnesses with a criminal history testifying (and therefore prior conviction impeachment) was partially rationalized by the idea that those potential witnesses lacked credibility.[22]  Once convicts were permitted to testify, they could do so on the condition that the opposing side could impeach them using their prior convictions.[23]  That was before the Federal Rules of Evidence took effect.[24]

In 1969, an Advisory Committee appointed by the Judicial Conference of the United States submitted its preliminary draft suggesting the initial form of the Federal Rules of Evidence.[25]  The proposal included Rule 6-09, which eventually became Rule 609.[26]  The proposed Rule 6-09 already included an age limit that restricted the admissibility of prior convictions for impeachment purposes.[27]  Unlike the modern rule, Rule 6-09 did not permit impeachment using convictions over 10 years old under any circumstances.[28]  Similarly to the modern rule, Rule 6-09 specified the starting point for the calculation of the age of a conviction (albeit slightly differently) and lacked any mention of an endpoint.[29]  The error of failing to specify how to conduct the age calculation for a conviction stems from the original drafting of the rules prepared by the Advisory Committee on Federal Rules of Evidence.

When the Advisory Committee drafted an initial set of rules, it provided explanatory notes accompanying each proposed rule.[30]  The note regarding proposed Rule 6-09(b) justified using a time limit by arguing that “practical considerations of fairness and relevancy demand that some boundary be recognized.”[31]  The Advisory Committee modeled its proposed federal age limit after a similar proposed but unadopted rule for the California Evidence Code.[32]  The Advisory Committee provided no insight into how it determined the starting point for measuring the age of a conviction, why it did not include an endpoint, or whether it ever weighed different possible endpoints.

By 1973, the Advisory Committee had submitted its proposed Federal Rules of Evidence to the Supreme Court, which promulgated the rules and transmitted them to Congress.[33]  The House failed to catch the Advisory Committee’s oversight.  The House amended 609(b) only to clarify which convictions were admissible impeachment evidence when a witness’s most recent felony was within 10 years but failed to discuss how to measure the age of a conviction under the 10 year rule.[34]  Before the Federal Rules of Evidence first went into effect in 1975,[35] Congress made one additional amendment: 609(b) would not create a total bar to impeachment using convictions more than 10 years old and instead would permit admission if “the probative value of the conviction, supported by specific facts and circumstances, substantially outweighs its prejudicial effect.”[36]  The Senate Report accompanying this amendment discussed the purpose of 609(b) (the diminished probative value of older convictions) but made no mention of its application.[37]

At no point since the Federal Rules of Evidence took effect has 609(b) been amended or even mentioned in Advisory Committee Notes or a Congressional Committee Report.[38]  The history of this rule, just like its text, remains devoid of any information that could reasonably assist the interpretation of how to calculate the age of a conviction.

III.           The Circuit Split

Several circuits have already been confronted with 609(b)’s nonexistent endpoint, and each has decided the endpoint in its respective circuit.  While most of these cases have determined that the endpoint is the start of trial, there has not been a unanimous answer, with some courts using the offense date or the indictment date.  Additionally, in some cases, courts managed to avoid interpreting 609(b) by deciding the case on other grounds.  While no circuit has binding precedent that mandates using the arrest date or date of testimony as endpoints, there is dicta that suggests courts would be justified in using those endpoints in the future.  A common theme is that none of the cases that have addressed 609(b)’s endpoint looked carefully at the text or history of the rule, and rarely did they engage in a comprehensive policy discussion that weighed the merits of the competing options.  Instead, many of the opinions fail to adequately grapple with the issue presented in this paper.  The remainder of this section provides a closer look at these rulings.

A.    Start of Trial

The First Circuit, in United States v. Nguyen, used the start of trial as the endpoint for measuring the age of a conviction under 609(b).[39]  In that case, the defendant appealed the exclusion of a victim-witness’s prior conviction.[40]  The clock started running in May 1996, the date of the conviction, because the witness received a nonjail sentence and therefore, there was no period of confinement.[41]  Nguyen’s trial started in June 2006, and the First Circuit used that as the endpoint, which placed the prior conviction just outside the 10 year limit at 10 years and one month old.[42]  Using the offense date of June 2005 or the date of indictment in December 2005 would have compelled a different result; the prior conviction would not have been stale.[43]

While the Nguyen opinion does not include a textual or historical analysis of the rule to reach its conclusion, it does contain two policy justifications.  First, the opinion focuses on the need for consistency across cases by focusing on the “bright line” that 609(b) draws.[44]  It rejects any case-specific “redrawing” even in close cases, like Ngyuyen’s, because “whenever the law draws a line, some events will fall on the ‘other’ side.”[45]  This explains a preference against using different endpoints depending on case-specific circumstances.  Second, the opinion suggests that its use of the trial date as the endpoint is informed by ensuring judicial economy and avoiding undue delay.[46]  While the Nguyen court would have looked unfavorably upon scheduling gamesmanship designed to make a prior conviction too old for admissibility, it found that “[t]here [was] no suggestion here that the government manipulated the calendar or the scheduling process in order to postpone the trial and allow the clock to run.”[47]

Several opinions reached the same conclusion as Nguyen but provided essentially no analysis.  For example, two Third Circuit opinions use the start of trial as the endpoint for 609(b) without any discussion of the content of the rule or prior precedent.  United States v. Williams effectively rewrites 609(b) without explanation by declaring, “609(b) prohibits impeachment based on convictions for which the witness was confined and released more than ten years prior to trial.”[48]  United States v. Hans makes an almost identical maneuver by only citing 609(b) itself to support a conclusion that a prior conviction is within the time limit if “the conviction or the witness’ release from prison occurred within 10 years of the trial.”[49]  The Fifth,[50] Seventh,[51] Eighth,[52] and Ninth[53] Circuits have made similar bare-bones decisions using the start of trial as 609(b)’s endpoint.  As previously discussed, there is no support for this proposition in the text or history of 609(b).

The decisions based on insufficient analysis or support from the Federal Rules of Evidence were path-making: largely decided shortly after the Federal Rules of Evidence took effect,[54] later cases continue to cite this first generation as adequate support for using the start of trial as 609(b)’s endpoint, even when they are not binding.[55]  In United States v. Watler, the Eighth Circuit demonstrated how a dangerous feedback loop of citations can continue.[56]  In that case, the defendant was indicted in 2003, less than 10 years after his prior theft conviction, and tried in 2005, more than 10 years after the theft conviction.[57]  The defendant argued that the trial court erred by calculating the age of his conviction using the date he was indicted as the endpoint.[58]  The Eighth Circuit seems to agree with the defendant because “[m]ost of the cases interpreting Rule 609” find that “the ten-year time limit should be measured [using the date that the trial begins].”[59]  The opinion does not evaluate the reasoning contained in any of the prior cases it cites, and only one case cited came out of the Eighth Circuit and would arguably be binding.[60]  Thankfully, this deference to poorly reasoned and merely persuasive prior caselaw was just dicta because the defendant testified about his prior conviction on direct examination and, therefore, could not contest its admission on appeal.[61]

B.     Offense Date

Although it is not as common of an endpoint, the Eighth Circuit has used the date of the offense that is the subject of the trial where the impeachment evidence is offered.[62]  Again, United States v. Foley is an example of a case that picks an endpoint without critically engaging with 609(b) or other case law.[63]  Without a detailed discussion, the opinion finds that “Foley was released from this conviction ten years and ten months before the present offense,” and as a result, concludes that “[609(b)] makes the time period in this case ten years and ten months.”[64]  It is more excusable to omit a comprehensive analysis of 609(b) in this instance because the offense date is the earliest reasonable endpoint a court may use.  So, if Foley’s prior conviction was beyond the 10 year time limit when measured in this manner, the conviction would undoubtedly be more than 10 years old using any alternative (and later) date.  However, the Foley court never asserted that the offense date is the correct endpoint to use when applying 609(b) nor did it clarify whether it used the offense date merely to illustrate that the choice of which endpoint to use would not have had an effect on the admissibility of the prior conviction in this case.

A Fifth Circuit dissent also suggested that an offense date endpoint would be “the appropriate closing date” for measuring convictions under 609(b) if the court were deciding the case on a “clean slate.”[65]  Judge Fay did not make this claim based on 609(b)’s text but provided a policy justification for this endpoint and reasoning based on the rule’s purpose.[66]  Like the First Circuit in Nguyen,[67] Judge Fay was concerned about incentivizing a delay in proceedings and thought that “[a]ny other formula serves to reward the felon for delaying prosecution by any means possible.”[68]  Judge Fay also invoked 609(b)’s purpose, arguing that “[i]f prior convictions lose their probative value for impeachment purposes because of ten years of ‘good behavior,’” we should be measuring the endpoint of 609(b) based on the time period of “unquestioned good behavior.”[69]  This proposal builds off of Congress’s proffered reasoning for 609(b):  It is not that a conviction becomes less probative based on age alone; prior convictions lose probative value when time passes, and there are no intervening bad acts. [70]

C.    Date of Indictment

Multiple circuits appear to have used the date of indictment as 609(b)’s endpoint but did not explain their process for doing so nor explicitly hold that the date of indictment is the proper way to interpret 609(b)’s ambiguous endpoint.[71]  For example, in United States v. Ras, the Seventh Circuit simply mentions the March 16, 1982 date of indictment and proceeds to find that the defendant’s prior conviction, for which he was released from confinement in August 1972, was within the 10 year time limit of 609(b).[72]  While the opinion also mentions when the second offense likely occurred, it does not seem to use the offense date as 609(b)’s endpoint, given that there is only a date range for the offense.[73]  In contrast to the seventeen month span when the defendant’s conduct may have occurred, the day the grand jury returned an indictment is precise.

Although it was not used as an endpoint in the Tenth Circuit, dicta from that court presents various competing arguments on this matter and suggests that 609(b)’s clock “should be tolled at indictment in order to discourage dilatory tactics.”[74]  Again, the desire to avoid unnecessary scheduling tactics is playing a central role in this debate, but with a different conclusion about which endpoint best serves that objective.[75]

D.    Avoidance and Other Dicta

Several cases have managed to avoid analyzing 609(b) to determine its endpoint either because they are bound by precedent or because the case could be decided on other grounds.  These cases still often provide dicta that illuminates the normative discussion of 609(b)’s endpoint.  For example, in United States v. Cathey, the Fifth Circuit was bound by prior circuit precedent to use the start of trial as the endpoint for measuring the age of a conviction.[76]  The Cathey court acknowledged that precedent and provided a policy-based counterargument in dicta.[77]  It suggested that a more logical endpoint may be the date of the witness’s testimony because the “concern is the [witness’s] credibility when he testifies.”[78]  Although this may seem like a trivial difference, it may impact whether a prior conviction is more or less than 10 years old because “in a protracted trial [the start of trial] might be considerably earlier” than when a given witness takes the stand.[79]

The Eighth Circuit in United States v. Griffin also managed to defer ruling on 609(b)’s endpoint after the trial judge sustained a defense objection to the prosecutor’s cross-examination of the defendant about a prior assault conviction.[80]  Griffin, the defendant, was released from confinement for the prior conviction 10 years and one month before the trial but was indicted within the 10 year period.[81]  The district court sustained the objection and provided a limiting instruction to the jury because it ruled that the endpoint of 609(b) is the start of the trial, not the date of the indictment.[82]  The Eighth Circuit, on review, found that the unanswered cross-examination questions did not prejudice Griffin.  This finding allowed the appellate court to refrain from evaluating 609(b)’s endpoint.[83]

Additionally, the Tenth Circuit has avoided this issue after acknowledging 609(b)’s ambiguity by first concluding that the district court did not abuse its discretion in finding that the probative value of the prior conviction substantially outweighed its prejudicial effect, so it was admissible regardless of its age.[84]  So, starting the admissibility analysis by first conducting the more stringent balancing test in 609(b) may render the age of the prior conviction moot.

Lastly, the Third Circuit recently used the standard of review to avoid revisiting 609(b)’s endpoint.[85]  United States v. Thomas involved prior convictions that would have been within the 10 year limit if measured at the time of the offense date but were beyond the 10 year limit by the start of trial.  The Third Circuit found that the trial court allowing questioning regarding the prior convictions created harmless error and avoided interpreting 609(b) or opining on its endpoint.[86]

IV.           The Path Forward

609(b)’s ambiguity, the arbitrary results it compels, and the circuit split it produced demand an amendment to the Federal Rules of Evidence to create uniformity in 609(b)’s application using the most desirable endpoint from a policy perspective.  This section explains why a carefully crafted amendment is preferable to the status quo and sets forth a proposed amendment to 609(b).

A.    609(b) Should Be Amended

While 609(b) is subject to multiple interpretations, that alone does not justify an amendment to the rule.  The amendment process is resource intensive, requires judges and lawyers to become familiar with the new rule, and may create new ambiguity if the new language is not well drafted.  In many instances, that is “too much work for too little payoff.”[87]  However, on certain occasions, amendments are justified despite “the transaction costs inherent in rule changes.”[88]  Professors Daniel Capra and Liesa Richter have persuasively argued that “when a conflict [among courts] is long-standing, shows no signs of being resolved, and creates divergent standards for litigants operating within the same court system, it is a drafting committee’s responsibility to resolve the impasse.”[89]

609(b) meets this standard for amendment.  This issue has created a longstanding conflict, given that courts have offered differing opinions across several decades.[90]  There are no signs of resolution, with some circuits locked into panel precedent[91] and no realistic expectation of en banc review or that the Supreme Court will settle the circuit split.[92]  Additionally, federal litigants across the country face divergent (and in some cases unknown) standards because of the circuit split and remaining undecided circuits. Thus, an amendment is the appropriate resolution.

Some may argue that setting an endpoint will carry with it negative externalities, like pretextual scheduling tactics, which make an amendment more trouble than it is worth.  That argument is unpersuasive because any risk of gamesmanship would be limited if 609(b) specified an endpoint at the date of indictment.[93]  Most importantly, the minimal risk of gamesmanship accompanying that endpoint is outweighed by the negative impact of arbitrary rulings, which are unavoidable when 609(b)’s current ambiguous language controls.

Amending 609(b) to set an endpoint will not strip judges of all their discretion—they will retain discretion when applying the appropriate standard and balancing the probative value and prejudicial effect of the prior conviction.  An amendment to set an endpoint will simply limit judicial discretion to when the judge is applying the admissibility standard.  The judge will not also be able to exercise discretion in measuring the age of a conviction, which determines the standard to apply.  When judges exercise their discretion while balancing the probative and prejudicial value of a prior conviction, they are doing so in a manner specifically afforded to them by the Federal Rules of Evidence.  On the other hand, maintaining discretion in determining 609(b)’s endpoint lacks such a justification and leaves judges unconstrained by anything internal to the rule to guide their analysis or ground the explanations for their rulings.

B.     The Proposed Amendment

609(b) should be amended to read as follows: “This subdivision (b) applies if, by the date of indictment in a criminal case or the date of complaint in a civil case, more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later.”

This amendment should be adopted because the date of indictment is the best endpoint for 609(b) from a policy perspective and is the option that best comports with the purpose of the Federal Rules of Evidence.  The purpose of the Federal Rules of Evidence is to ensure that courts can “administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.”[94]  To ensure fairness, it is important that any amendment sets the same endpoint for both plaintiffs and defendants.  Setting the endpoint as the date of indictment does this.  Admittedly, so do other proposals like the offense date, arrest date, start of trial, or date the witness testifies.[95]  None of these options are necessarily defense-friendly or prosecution-friendly alternatives because any litigant can use 609(b) to impeach a witness using a prior conviction.[96]  So, setting a consistent endpoint will, on the whole, lead to fair outcomes that may favor the prosecution in some cases and the defendant in others.

A more central concern when setting an endpoint should be avoiding undue delay or scheduling gamesmanship like pretextual continuances of trial or motion deadlines.  Multiple appellate decisions have raised this point when addressing where to set 609(b)’s endpoint.[97]  Setting the endpoint at the date of indictment carries a very minimal risk of gamesmanship.  To begin, defendants are powerless to manipulate the indictment date, so this amendment immediately limits who can engage in dilatory tactics.

Additionally, the best way to avoid delay tactics from the prosecution is to set the endpoint as early in the lifecycle of a case as possible because the incentives to manipulate scheduling are lower when it is unclear if there will even be a trial and, if there is, who will testify and be subject to impeachment by a prior conviction.  At the point of indictment, the odds of a case going to trial are exceedingly slim—in 2022, only 2.3% of federal criminal defendants went to trial.[98]  True, the date of indictment is not the earliest possible endpoint; the date of the offense conduct is earlier, so one may argue that even using the indictment date rewards delay.[99]  However, the date of indictment is the earliest viable endpoint because the offense date often cannot easily be determined, if at all.[100]  This fatal flaw makes the offense date, the only earlier endpoint, an unadministrable option.

Not only is it unlikely, at the time of indictment, that a case will involve impeachment with a prior conviction, but prosecutors also face practical hurdles if they want to adjust when they seek an indictment.  One may argue that if a prosecutor really wanted to ensure they could impeach a defendant using a prior conviction, they would rush to indict and capture the prior conviction within the 10 year period.  However, prosecutors are constrained by their evidence and the grand jury process.  The grand jury is already an established check on prosecutors’ ability to expedite indictments because prosecutors cannot get a true bill without first showing probable cause that the accused person committed a crime.

If prosecutors want to delay getting an indictment to decrease the likelihood that a government witness’s prior conviction will be admissible, they face significant tradeoffs that make the prospect of gamesmanship an unattractive decision.  Prosecutors with enough evidence to get an indictment are unlikely to delay going to a grand jury and risk the prospect that the suspect will either flee or continue to commit crime.  The possibility of flight would require prosecutors and investigators to monitor the suspect and expend resources for a remote possible benefit.  Prosecutors will generally be unwilling to put the public at risk by delaying an indictment and providing the suspect the opportunity to engage in more criminal activity.  Prosecutors face greater risks from delaying an indictment than the improbable reward of being able to use a defendant’s prior conviction if the case proceeds to trial.

This proposed amendment includes a separate but analogous endpoint for civil cases because there will not be an indictment in those cases.  While litigants will impeach using prior convictions more frequently in criminal cases (where the defendant and other witnesses are more likely to have prior convictions), 609(b) can be used in civil cases as well.[101]  The filing of a complaint is the most appropriate civil analog to an indictment and consistency is desirable.  Given that 609(b) is more frequently applicable in criminal cases, the policy implications for criminal cases should be of greater concern.  But, consistency is not the only justification.  The same incentives present in criminal cases counsel setting 609(b)’s endpoint in civil cases at the date of complaint.  It is an early endpoint that does not present a substantial opportunity for gamesmanship and schedule manipulation.  In fact, an even smaller proportion of federal civil cases than federal criminal cases are resolved at trial.[102]

C.    Analysis of Alternative Endpoints

Each other potential endpoint for 609(b) will have a comparatively worse impact.  Let’s take a look at each option.  To begin, the offense date is a seemingly attractive option because it is even earlier than the date of indictment.[103]  Since it occurs so far in advance of a potential trial, a defendant would be unlikely to shift the timing of their conduct to avoid later impeachment at a trial that almost certainly will not take place.  However, this is not an administrable rule because the offense date is very often an offense date range.  For example, a defendant may be charged with narcotics offenses with the underlying conduct consisting of sales on multiple days.[104]  In that instance, which date would courts use as 609(b)’s endpoint?  Even if one were to propose an amendment that tied 609(b)’s endpoint to the start of the offense conduct, that would require a close look at the merits of the case, likely during a Rule 104(a) hearing,[105] to conduct the 609(b) age measurement.  Such a process would be a colossal waste of time and resources.  The inability to easily reduce the offense date to a single date dooms its viability as an endpoint for 609(b)—it would eliminate the current ambiguity but create a new headache by forcing courts to make robust factual determinations to apply the amended rule.

The arrest date, similar to the offense date, would create new problems if used as the endpoint for measuring the age of a conviction.  First, there is no arrest in a civil case, so any amendment that implements the arrest date as the endpoint in criminal cases would need to specify a different endpoint that courts would apply in civil cases.  There is no clear analog to an arrest in a civil case, unlike using the date of a criminal indictment as the endpoint, which is mirrored by a civil complaint because both are case-initiating documents.  Second, using the arrest date as the endpoint would reward a defendant who delayed his arrest through wrongdoing.  However, courts, effectuating Congress’ purpose, should not reward defendants for wrongdoing by allowing the 609(b) clock to keep ticking while they evade arrest.[106]  Like an amendment to use the offense date as an endpoint, using the arrest date would occasionally necessitate hearings to determine factual preliminary questions, in this instance, whether a delay in the arrest resulted from a defendant’s “voluntary wrongful act.”[107]  On the other hand, the date of indictment presents no such externality because it is a fixed point regardless of the length of the defendant’s alleged conduct or the timing of their arrest.

The start of trial, the most common current option, is an undesirable endpoint for 609(b) because it is far enough along a case’s lifecycle to incentivize dilatory tactics.  Once it is clear that a trial will take place, litigants will have more confidence in their need to manipulate the litigation schedule to ensure impeachment using a prior conviction will be permitted or to attempt to avoid such impeachment.  While the First Circuit has used the start of trial as an endpoint in a case where “the government [did not] manipulate[] either the calendar or the scheduling process in order to postpone the trial and allow the clock to run,” that was a real risk that required a factual determination by the judge.[108]  While there may not have been gamesmanship in that specific case, neither the litigants nor panel argued that using the start of trial, on the whole, avoids incentivizing delay compared to earlier alternatives.[109]  Litigants have various tools at their disposal before a trial begins to protract proceedings, including additional motion practice, slow-rolling discovery, requesting distant deadlines, or requesting adjournments.  Given courts’ concern about parties using gamesmanship to conform with 609(b)’s time limit and the ideal of the Federal Rules of Evidence to promote an efficient judicial process,[110] the date of the indictment is the preferable endpoint.[111]

The latest option for 609(b)’s endpoint is at the start of the witness’s testimony.  This endpoint is a poor choice for the same reasons that the start of trial is—as time passes, it becomes more and more apparent that the prior conviction will actually be used to impeach the witness, so the parties have a greater incentive to manipulate the trial schedule.  Litigants have even more options to delay proceedings by the time a particular witness testifies.  For example, they could rearrange their witness order or try to prolong the trial.  Professors Daniel Capra and Jessica Berch have advocated for an amendment to 609(b) that would set the endpoint “on the day the witness first testifies.”[112]  They reason that this is the most appropriate endpoint because “the concern is the [witness’s] credibility when he testifies.”[113]  However, all of the proposed endpoints discussed in this Essay capture that policy objective.  Earlier endpoints, like the date of indictment, still allow jurors to assess the witness’s credibility when they testify.  Additionally, earlier endpoints also provide a consistent rule for all litigants and allow jurors to assess witness’s credibility at the moment they are on the stand.

One difference between using the date a witness testifies as the endpoint and other alternatives is that earlier endpoints allow more convictions to be used for impeachment.  Even if one thinks that effect is cause for concern, it is not a strong reason to oppose earlier endpoints.  The most logical method of addressing concerns about the number of admissible convictions (whether one thinks it is too many or too few) is to adjust the 10 year time limit as necessary.  Any amendment to 609(b) can address those concerns by simultaneously setting an endpoint and altering the existing time limit.  This approach is preferable because the time limit’s purpose is to set the bounds of admissibility while the starting point and end point function as tools of administrability—their purpose should be to facilitate a court’s ability to apply the time limit.  If one is concerned that earlier endpoints will classify too many prior convictions as properly admissible impeachment evidence, the more appropriate manner of dealing with that is to shorten the time limit to less than 10 years, as the Advisory Committee and Congress see fit.  The remedy should not be to set a later endpoint, thus allowing scheduling tactics to control evidentiary rulings.

Professors Capra and Berch briefly address the risk of gamesmanship, writing, “[t]he Advisory Committee Note might comment on the inherent power of the courts to prohibit gamesmanship, such as strategic attempts to ‘run out the time clock’ by delaying the witness’s testimony.”[114]  This suggestion is inadequate to deal with a primary concern their proposed amendment creates.  While courts do have inherent power to limit gamesmanship, in practice, it will prove difficult for courts or opposing counsel to distinguish gamesmanship from proper scheduling discussions.  If litigants have pretextual reasons for a scheduling request, they are unlikely to admit to them and instead will mask their requests in legitimate logistical concerns.  For example, parties can request more time to produce discovery or file a motion that may have plausible justifications but may truly be fueled by a desire to work around 609(b).  Additionally, witness orders at trial routinely change for the logistical needs of the witnesses, something that is rarely closely scrutinized by courts.  While judges certainly have the power to limit the gamesmanship that would result from setting the endpoint at the time the witness testifies, effectively exercising that power would require some investigating or initial proof that is unlikely to exist.


In its current form, Federal Rule of Evidence 609(b) leaves courts and litigants confused about its proper application.  It is impossible to accurately calculate the age of a prior conviction, often a determining factor in the conviction’s admissibility, without knowing where to start and where to end.  This ambiguity requires an amendment to the rule, given the arbitrary evidentiary rulings it has caused, and the circuit split that has gone unresolved for decades with no sign of a resolution in the future.  The most effective amendment to 609(b), which would avoid creating new problems in administrability or incentivizing inefficiencies, would set the endpoint at the date of indictment in a criminal case or the date of complaint in a civil case.

* J.D. Candidate, Harvard Law School (2025). I am extremely grateful to Esther Levine, Professor Emily Schulman, Professor Lisa Kern Griffin, Tom Koenig, and Marcos Mullin for their helpful comments and support. Any errors are my own.

[1] Fed. R. Evid. 609(b).

[2] Id.  While this standard for admitting convictions that are more than 10 years old is not necessarily dispositive, it creates a massive barrier to admissibility because it is presumed that convictions lose their probative value for impeachment as they age.  It is that probative value that must “substantially outweigh [the prior conviction’s] prejudicial effect.”   

[3] Fed. R. Evid. 403 (allowing courts to exclude evidence if “its probative value is substantially outweighed by . . . unfair prejudice”); See Fed. R. Evid. 609(a)(1)(A)–(B) (governing the admissibility of convictions that are less than 10 years old and mandating their admissibility for impeachment purposes under less strict standards that balance the conviction’s probative value and prejudicial effect).

[4] Much ink has been spilled about the fairness of Rule 609.  See, e.g., Jeffrey Bellin, Circumventing Congress: How the Federal Courts Opened the Door to Impeaching Criminal Defendants with Prior Convictions, 42 U.C. Davis L. Rev. 289, 290 (2008) (claiming that Rule 609 “unnecessarily deter[s] defendants from testifying and improperly penalize[es] those who do take the witness stand”); Alan D. Hornstein, Between Rock and A Hard Place: The Right to Testify and Impeachment by Prior Conviction, 42 Vill. L. Rev. 1, 61 (1997) (same).  Several scholars have gone as far as seeking to abolish Rule 609 entirely.  See, e.g., Richard Friedman, Character Impeachment Evidence: Psycho-Bayesian (!?) Analysis and a Proposed Overhaul, 38 UCLA L. Rev. 637, 639 (1991) (arguing that “rule 609 should be repealed”); Anna Roberts, Conviction by Prior Impeachment, 96 B.U. L. Rev. 1977, 1978 (2014) (proposing “abolition” based on three state models).  This Essay instead focuses on a problem related to the application of 609(b) that has received considerably less attention.  The scope of this argument is more limited and is intended to be helpful for judges, litigants, practicing attorneys, and those who think that Rule 609 should be improved, not discarded.

[5] Fed. R. Evid. 609(b).

[6] Christopher Slobogin, The Case for A Federal Criminal Court System (and Sentencing Reform), 108 Cal. L. Rev. 941, 946–47 (2020) (“[T]he median time from initiation of a traditional criminal case to its termination at the district court level has skyrocketed by more than 200 percent . . . to over seven months.”).

[7] This example assumes the case is in a jurisdiction that has not yet ruled on this issue.  Of course, a trial judge is bound by circuit precedent to the extent it exists.

[8] It is not uncommon for a case to straddle the 10 year time limit of 609(b) in this manner.  See, e.g., United States v. Griffin, 437 F.3d 767, 769 (8th Cir. 2006) (defendant was indicted within the 10 year period but released from confinement for the prior conviction 10 years and one month before the trial); United States v. Nguyen, 542 F.3d 275, 278 (1st Cir. 2008) (witness was convicted with no confinement imposed 10 years and three weeks before commencement of the appellant’s trial); United States v. Thomas, 815 F. App’x 671, 676–78 (3d Cir. 2020) (prior conviction occurred more than 10 years before trial but less than 10 years before the alleged offense conduct).  Additionally, this issue is present in many cases even if it is not raised by litigants or addressed in a written opinion.  It is pertinent any time a witness testifies in a case, criminal or civil, if they have a prior conviction that is in the vicinity of the 10 year mark.

[9] Edward J. Imwinkelried, A Brief Defense of the Supreme Court’s Approach to the Interpretation of the Federal Rules of Evidence, 27 Ind. L. Rev. 267, 273 (1993) (arguing that the Supreme Court has correctly applied a textualist approach to interpreting the Federal Rules of Evidence); Edward J. Imwinkelried, Moving Beyond “Top Down” Grand Theories of Statutory Construction: A “Bottom Up” Interpretive Approach to the Federal Rules of Evidence, 75 Or. L. Rev. 389, 391 (1996) (“Although Justices routinely consider extrinsic material such as Advisory Committee Notes and congressional committee rules, they ordinarily interpret the language of the rules according to their plain meaning, unless a literal construction would lead to an absurd, or perhaps even an unconstitutional, result.”).

[10] Ric Simmons, An Empirical Study of Rule 609 and Suggestions for Practical Reform, 59 B.C. L. Rev 993, 994 (2018) (finding, based on survey results, that “crimes of theft have a high probative value for proving lack of credibility”).

[11] Hornstein, supra note 4 at 1 (“If the jury learns that a defendant previously has been convicted of a crime, the probability of conviction increases dramatically.”).

[12] Donald Dripps, Akhil Amar on Criminal Procedure and Constitutional Law: “Here I Go Down That Wrong Road Again”, 74 N.C. L. Rev. 1559, 1632 (1996) (“The principal reason why defendants refuse to take the stand is that they fear impeachment with prior convictions.”); Gordon Van Kessel, Adversary Excesses in the American Criminal Trial, 67 Notre Dame L. Rev. 403, 482 (1992) (“[C]onviction impeachment can be a powerful deterrent to taking the witness stand.”).

[13] Ticketing Policies, JetBlue (Jan. 14, 2024), https://www.jetblue.com/travel-agents/ticketing-policies (emphasis added).

[14] Daniel J. Capra & Jessica Berch, It’s A Code: Amending the Federal Rules of Evidence to Achieve Uniform Results, 58 Wake Forest L. Rev. 549, 563 (2023) (advocating for an amendment that sets 609(b)’s endpoint “on the day the witness first testifies”).

[15]  Glen Weissenberger, The Supreme Court and the Interpretation of the Federal Rules of Evidence, 53 Ohio St. L.J. 1307, 1311–12 (1992).

[16] See Bourjaily v. United States, 483 U.S. 171, 178 (1987) (determining that Rule 104 “mean[s] what it says” and declining to “require legislative history to confirm the plain meaning”); Randolph N. Jonakait, The Supreme Court, Plain Meaning, and the Changed Rules of Evidence, 68 Tex. L. Rev. 745, 749 (1990).

[17] See Green v. Bock Laundry Mach. Co., 490 U.S. 504, 508 (1989) (declaring that determining the meaning of Rule 609 requires beginning with the text); Tome v. United States, 513 U.S. 150, 167 (1995) (Scalia, J., concurring in part) (emphasizing the importance of the text of a rule when trying to derive its meaning because “[i]t is the words of the Rules that have been authoritatively adopted”).

[18] Fed R. Evid. 609(a)–(b); see S. Rep. No 93-1277, at 7061 (1974).

[19] Fed R. Evid. 609(b).

[20] Id.

[21] Edward W. Cleary, McCormick on Evidence § 43, at 93 (3d ed. 1984).

[22] Bock Laundry Mach. Co., 490 U.S. at 511 (quoting 3 Jack Weinstein & Margaret A. Berger, Weinstein’s Evidence ¶ 609[02], at 609–58 (1988)).

[23] Id.

[24] See Lester B. Orfield, Competency of Witness in Federal Criminal Cases, 46 Marq. L. Rev. 324, 329–30 (1963).

[25] Preliminary Draft of Proposed Rules of Evidence, Advisory Committee’s Note, 46 F.R.D. 161, 171 (1969).

[26] Id. at 296.

[27] Id.

[28] Id.

[29] Id.

[30] Id. at 171.

[31] Id. at 299.

[32] Id.

[33] H.R. Rep. No. 93-650, at 7077 (1973).

[34] Id. at 7085.

[35] Fed. R. Evid. Historical Note.

[36] S. Rep. No 93-1277, at 7061–62 (1974); H.R. Rep. No. 93-1597, at 7103 (1974).

[37] S. Rep. No 93-1277, at 7061 (1974).

[38] See Fed R. Evid. 609 advisory committee’s note to 1987 amendment (making only technical amendments); Fed R. Evid. 609 advisory committee’s note to 1990 amendment (only discussing rule 609(a)); Fed R. Evid. 609 advisory committee’s note to 2006 amendment (only discussing 609(a)); Fed R. Evid. 609 advisory committee’s note to 2011 amendment (restyling, not making substantive changes).

[39] 542 F.3d 275, 280–81 (1st Cir. 2008).

[40] Id. at 278.

[41] Id.

[42] Id. at 279.

[43] See id. at 276–77.

[44] Id. at 281.

[45] Id.

[46] Id.

[47] Id.

[48] 892 F.2d 296, 301 (3d Cir. 1989) (emphasis added).

[49] 738 F.2d 88, 93 (3d Cir. 1984) (emphasis added).

[50] United States v. Cohen, 544 F.2d 781, 784 (5th Cir. 1977) (stating, in a conclusory manner, that “[s]ince the trial commenced in July of 1975” the prior conviction exceeded the 10 year time limit of 609(b)).

[51] United States v. Thompson, 806 F.2d 1332, 1339 (7th Cir. 1986) (determining that “the trial court’s application of rule 609(b) . . . was proper as Thompson’s trial began within ten years of his release from confinement for his state tax fraud convictions”).

[52] United States v. Cobb, 588 F.2d 607, 612 n.5 (8th Cir. 1978) (finding that the defendant’s prior conviction fell within the 10 year limitation because “his period of confinement apparently ended less than ten years prior to the date of his trial here in June 1978”).

[53] United States v. Portillo, 633 F.2d 1313, 1323 n.6 (9th Cir. 1980) (instructing the district court to make the factual determination of a prior conviction’s starting point on remand so that it could determine if it was within 10 years of the start of trial).

[54] See e.g., Cohen, 544 F.2d at 784; Cobb, 588 F.2d at 612 n.5.

[55] United States v. Watler, 461 F.3d 1005, 1008 (8th Cir. 2006).

[56] Id.

[57] Id.

[58] Id.

[59] Id.

[60] Id. at 1008–09.

[61] Id. at 1009 (citing Ohler v. United States, 529 U.S. 753, 760 (2000)).

[62] United States v. Foley, 683 F.2d 273, 277 n.5 (8th Cir. 1982).  This case fails to acknowledge that the Eighth Circuit used a different endpoint four years earlier in United States v. Cobb.  588 F.2d 607, 612 n.5 (8th Cir. 1978).  Additionally, later Eighth Circuit opinions that address 609(b)’s endpoint fail to cite or discuss Foley.  See Watler, 461 F.3d at 1008; United States v. Griffin, 437 F.3d 767, 769 (8th Cir. 2006).

[63] Foley, 683 F.2d at 277, 277 n.5.

[64] Id.

[65] United States v. Cathey, 591 F.2d 268, 277 n.2 (5th Cir. 1979) (Fay, J., dissenting).  The Fifth Circuit had already created binding precedent on this issue that required this case to use the start of trial as 609(b)’s endpoint.  United States v. Cohen, 544 F.2d 781, 784 (5th Cir.1977).

[66] Cathey, 591 F.2d at 277 n.2 (Fay, J., dissenting).

[67] United States v. Nguyen, 542 F.3d 275, 281 (1st Cir. 2008).

[68] Cathey, 591 F.2d at 277 n.2 (Fay, J., dissenting).

[69] Id.

[70] S. Rep. No 93-1277, at 7061–62 (1974) (discussing impact of the age of a conviction on its probative value for impeachment); H.R. Rep. No. 93-650, at 7085 (1973) (same).

[71] United States v. Ras, 713 F.2d 311, 318 (7th Cir. 1983); United States v. Lorenzo, 43 F.3d 1303, 1308 (9th Cir. 1995).

[72] 713 F.2d at 313, 318.

[73] Id. at 313.

[74] United States v. Jefferson, 925 F.2d 1242, 1256 n.16 (10th Cir. 1991).

[75] See United States v. Nguyen, 542 F.3d 275, 281 (1st Cir. 2008) (start of trial did not involve delay tactics); United States v. Cathey, 591 F.2d 268, 277 n.2 (5th Cir. 1979) (Fay, J., dissenting) (anything other than offense date would incentivize delay).

[76] Cathey, 591 F.2d at 274 n.13.

[77] Id.

[78] Id.  While the language in the opinion frames the suggested endpoint as the date the defendant testifies, that is because, in this case, the impeachment evidence was offered against the defendant.  Prior convictions, however, can be offered as impeachment evidence against any witness, not just a defendant.  More broadly applicable language would refer to the date of the witness’s testimony.  The Tenth Circuit has also suggested in dicta that the time of testimony is a viable endpoint for 609(b) and used more apt language.  Jefferson, 925 F.2d at 1256 n.16 (“[T]en year period should not be tolled until the opponent testifies because the purpose behind the ten-year limit is to separate those convictions that have a reasonable bearing on whether the opponent’s testimony can be believed from those that have no reasonable bearing because they are stale.”).

[79] Cathey, 591 F.2d at 274 n.13.

[80] 437 F.3d 767, 769 (8th Cir. 2006).

[81] Id.

[82] Id.

[83] Id.

[84] United States v. Jefferson, 925 F.2d 1242, 1256 (10th Cir. 1991).

[85] United States v. Thomas, 815 F. App’x 671, 676–78 (3d Cir. 2020).

[86] Id.  Not every court has used the standard of review to avoid deciding this issue.  The Second Circuit, for example, found that introduction of prior convictions created only harmless error in a case but still, unnecessarily, declared that the defendant “rightfully point[ed] out” that the convictions were beyond the 10 year limit at the time of trial.  United States v. Mahler, 579 F.2d 730, 734 (2d Cir. 1978).

[87] Daniel J. Capra & Jessica Berch, Evidence Circuit Splits, and What to Do About Them, 56 U.C. Davis L. Rev. 127, 130 (2022).

[88] Daniel J. Capra & Liesa L. Richter, Poetry in Motion: The Federal Rules of Evidence and Forward Progress as an Imperative, 99 B.U. L. Rev. 1873, 1878 (2019).

[89] Id. at 1886–87 (premising this standard on the assertion that “[i]n the context of damaging and unresolved conflicts, the benefits of uniformity and fairness outweigh the potential costs of dislocation and unintended consequences”).

[90] See, e.g., United States v. Cathey, 591 F.2d 268, 274 n.13 (5th Cir. 1979); United States v. Williams, 892 F.2d 296, 301 (3d Cir. 1989); United States v. Lorenzo, 43 F.3d 1303, 1308 (9th Cir. 1995); United States v. Nguyen, 542 F.3d 275, 280–81 (1st Cir. 2008).

[91] See Cathey, 591 F.2d at 274 n.13 (deciding the case based on Fifth Circuit precedent but adding a “caveat” that another resolution may be more preferable).

[92] There is no pending petition for certiorari on this matter and even if one was filed, the Supreme Court “‘rarely grants certiorari’ in evidence cases.”  Capra & Berch, supra note 14, at 551 (quoting Edward R. Becker & Aviva Orenstein, The Federal Rules of Evidence After Sixteen Years-the Effect of “Plain Meaning” Jurisprudence, the Need for an Advisory Committee on the Rules of Evidence, and Suggestions for Selective Revision of the Rules, 60 Geo. Wash. L. Rev. 857, 911 (1992)).

[93] See discussion infra Part IV.B.

[94] Fed. R. Evid. 102.

[95] These potential endpoints are the reasonable alternatives that should be considered and have been either used or suggested by federal courts and additional scholarship.

[96] Compare United States v. Griffin, 437 F.3d 767, 769 (8th Cir. 2006) (impeaching a criminal defendant using a prior conviction) with United States v. Lorenzo, 43 F.3d 1303, 1308 (9th Cir. 1995) (defendant invoking 609(b) to use a prior conviction against a government witness).

[97] See United States v. Nguyen, 542 F.3d 275, 281 (1st Cir. 2008); United States v. Cathey, 591 F.2d 268, 277 n.2 (5th Cir. 1979) (Fay, J., dissenting).

[98] John Gramlich, Fewer than 1% of Federal Criminal Defendants Were Acquitted in 2022, Pew Research Center (June 14, 2023) https://www.pewresearch.org/short-reads/2023/06/14/fewer-than-1-of-defendants-in-federal-criminal-cases-were-acquitted-in-2022/#:~:text=In%20fiscal%20year%202022%2C%20only,were%20found%20guilty%20(1.9%25).

[99] Cathey, 591 F.2d at 277 n.2 (Fay, J., dissenting).

[100] See infra text accompanying note 104.

[101] Green v. Bock Laundry Mach. Co., 490 U.S. 504, 505–08 (1989) (discussing Rule 609’s applicability to civil, not just criminal, litigants).

[102] Jeffrey Q. Smith & Grant R. MacQueen, Going, Going, But Not Quite Gone: Trials Continue to Decline in Federal and State Courts. Does it Matter? 101 Judicature 26, 28 (2017) (“[A]pproximately 1 percent of all civil cases filed in federal court are resolved by trial.”).

[103] Because it is earlier than other suggested endpoints, using the offense date can be a quick and easy way for courts to dispose of 609(b) challenges when a conviction would be more than 10 years old regardless of the measurement used.  See United States v. Foley, 683 F.2d 273, 277 n.5 (8th Cir. 1982) (10 year and 10 month old conviction using offense date would be even older using other metrics).  However, this reasoning does not apply when then 10 year mark for a prior conviction straddles different possible endpoints, so it does not justify amending the 609(b) to use the offense date as its endpoint.

[104] Examples of multi-day crimes are plentiful.  Most conspiracies, fraud, or cases involving repeated conduct are not easily tied to a single date.  See, e.g., United States v. Torres, 529 F. App’x 303, 306 (3d Cir. 2013) (“years-long” narcotics conspiracy); United States v. Bates, 784 F. App’x 312, 341 (6th Cir. 2019) (“years-long” conspiracy and substantive mail and wire fraud).

[105] See Fed. R. Evid. 104(a) (requiring courts to “decide any preliminary question about whether . . . evidence is admissible); Fed. R. Evid. 104(a) advisory committee note on proposed rules (“To the extent that these inquiries are factual, the judge acts as a trier of fact.”).

[106] See United States v. Mullins, 562 F.2d 999, 1000 (5th Cir. 1977) (holding that “the defendant’s voluntary flight tolled the ten-year limitation in Rule 609(b)” despite binding circuit precedent that set 609(b)’s endpoint at the start of trial).

[107] Id.

[108] United States v. Nguyen, 542 F.3d 275, 281 (1st Cir. 2008).

[109] Id.

[110] Fed. R. Evid. 102.

[111] United States v. Jefferson, 925 F.2d 1242, 1256 n.16 (10th Cir. 1991) (tolling the 10 year period at the time of indictment is preferable if the objective is to “discourage dilatory tactics”).

[112] Capra & Berch, supra note 14, at 563.

[113] Id. (quoting United States v. Cathey, 591 F.2d 268, 274 n.13 (5th Cir. 1979)).

[114] Id.

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Distinguishing Administrative Delegations from Constitutional Offices – Yonatan Gelblum

Posted by on Jun 3, 2024 in Per Curiam

Distinguishing Administrative Delegations from Constitutional Offices – Yonatan Gelblum
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Distinguishing Administrative Delegations from Constitutional Offices

Yonatan Gelblum*


Although the use of administrative delegations to assign caretaking duties at federal agencies in the vacancies context has attracted the attention of courts and commentators,[1] the routine reliance by political appointees on delegations to career civil servants of broad authority over rulemaking, adjudication, and enforcement has drawn less attention.  The few contemporary appellate courts and commentators to have touched on the constitutional implications of this practice usually proceed from an assumption that administrative delegations of significant authority by officers create constitutional “Offices” subject to the Appointments Clause.[2]  In Submerged Independent Agencies,[3] which recently appeared in the University of Pennsylvania Law Review, Professors Feinstein and Nou provide a wide-ranging and original empirical and policy analysis of this practice, paired with a legal discussion that proceeds from the usual premise that such delegations create constitutional “Offices.”  The article’s comprehensive empirical approach, particularly its analysis of characteristics of thousands of delegations,[4] is innovative and helpful to informing debate about the desirability of this practice.  Apart from this detailed empirical discussion, the article assesses advantages and downsides of this practice, and suggests policy options for increasing political awareness of and accountability for delegated action.[5]  In this response, I focus on the article’s constitutional arguments concerning appointment and removal of career civil servants to whom officers delegate power.

In Part I, I address the article’s assertion that delegations to career civil servants violate the Appointments Clause,[6] because the delegatees wield the significant authority of constitutional “Officers” but are hired through a merits-based process regulated by the Office of Personnel Management.[7]  I first argue, based on judicial precedents and longstanding historical practice, that if the Appointments Clause applied to such officials, the requirement that they be hired in accordance with the civil service laws would not necessarily violate the Clause.  Because they are supervised by an officer, delegatees are not principal officers who require presidential nomination and Senate confirmation, and as long as a head of department vested with appointment authority assents to their appointment, no violation of the Appointments Clause would occur, notwithstanding the constraints placed on that official’s choice by the civil service laws.

More broadly, though, I argue that administrative delegations generally do not create offices subject to the Appointments Clause in the first place, even when delegatees exercise significant authority.  Rather, originalist and related textualist considerations, as well as longstanding historical practice and early jurisprudence, indicate that delegatees acting as mere agents of properly-appointed incumbent officers authorized by statute to take the same actions are not constitutional “Officers” subject to the Appointments Clause’s rules for appointments.  It is only when putative “delegatees” do not act as true agents of another officer, such as when they perform the duties of a vacant office, that they come to occupy de facto offices in violation of the Appointments Clause’s rules on office creation and, potentially, appointments.

In Part II, I address the article’s assertion that administrative delegations to tenured career staff raise the same constitutional concerns as statutory offices at independent agencies vested by statute with removal protections.[8]  I first argue on formalist grounds that because the removal jurisprudence only limits Congress’s ability to restrict removal of constitutional “Officers,” it is as inapplicable as the Appointments Clause is to administrative delegatees.  I also argue on functionalist grounds that because these delegations vest authority that is not tied by statute to the delegatee’s position, this authority is readily revokable even when the delegatee cannot be fired from federal service.  Consequently, presidential control of delegated action is comparable to control over the acts of officers subject to at-will removal.  I therefore conclude that administrative delegations do not raise the constitutional concerns suggested by the article.

I. Administrative Delegations to Career Civil Servants Do Not Violate the Appointments Clause

The article asserts that because administrative delegations may confer authority to engage in tasks implicating the “significant authority” of a constitutional “Office,” they violate the Appointments Clause when delegatees are civil servants who must be hired through the competitive merit-based civil service process.[9]  But statutes such as the civil service laws may constitutionally limit the discretion that heads of department vested with appointment authority would otherwise have over whom to appoint to office.  More fundamentally, when delegatees are mere agents of a properly appointed incumbent officer, the delegation does not implicate, much less violate, the Appointments Clause in the first place.  It is only when putative “delegatees” do not act as agents of a responsible officer—a scenario that courts have frequently encountered in recent years in the context of statutory challenges under the Federal Vacancies Reform Act to the official acts of “delegatees” performing the duties of vacant offices[10]—that they occupy de facto offices in violation of the Appointments Clause.

As an initial matter, if the Appointments Clause applied to delegations, the relevant jurisprudence and longstanding historical practice indicate that no constitutional violation would result from hiring limitations like those in the civil service laws, as long as a head of department with appointment authority ultimately approves a delegatee’s selection made pursuant to these laws.[11]  Professors Feinstein and Nou argue that delegatees subject to civil service tenure protections are principal officers requiring presidential nomination and Senate confirmation.[12]  But the courts have held that an ability to withdraw administratively vested power, including a delegating official’s inherent authority to revoke regulations purporting to limit such withdrawals, effectively subjects officials vested with such power to supervision by another officer, and they therefore are not principal officers.[13]

More fundamentally, the Appointments Clause simply does not apply to administrative delegations because they are not constitutional “Offices” as long as delegatees act as mere agents of properly appointed incumbent officers.  An administrative delegation is not an appointment to a constitutional “Office” because executive branch action cannot create an office in the first place, rather than because of a defect in the delegatee’s appointment.  As I have argued elsewhere on textualist, originalist, and structuralist grounds, the Appointments Clause’s mandate that offices “shall be established by Law” bars Congress from delegating its power to create offices.[14]  So if executive branch delegations created “Offices” in the constitutional sense, these delegations would be categorically unconstitutional, regardless of how the delegatees’ positions were filled.

However, such administrative delegations generally do not create offices implicating the Appointments Clause.  Rather, originalist, textual, historical, and early judicial authorities treat them differently from offices, indicating that they can be filled without conforming to the Appointments Clause, even when officers delegate “significant authority.”  At the time of the Founding, “deputies” acting in the name of an officer formally accountable for their actions were viewed as the officer’s alter egos rather than officers in their own right formally charged with official duties.[15]  Gouverneur Morris’ assertion at the Constitutional Convention that heads of department could delegate authority to appoint inferior officers[16] reflects this understanding that agents can wield authority on behalf of a delegating officer that they could not exercise in their own name.  This view also shaped First Congress statutes allowing officers to “depute” duties to others or appoint “deputies” to fulfill official duties in the officer’s name with binding effect, without referring to these agents as officers or providing for their appointment in conformity with the Appointments Clause.[17]

Constitutional text, read in light of this original understanding that administrative delegations do not create “offices,” provides ready support for such delegations.  Congress’s power “[t]o make all Laws which shall be necessary and proper for carrying into Execution the . . . Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof”[18] should logically allow statutes to authorize officers to delegate to agents.[19]  This reading does not conflict with Appointments Clause restrictions on how “Officers” can be appointed and their offices established, because that term was understood to refer to officials directly responsible for fulfilling official duties, as opposed to deputies acting in such officers’ names whose responsibilities derived from the officers’ own official duties.

Longstanding historical practice also reflects an understanding that agents to whom officers delegate authority do not themselves become officers as a result.  Various nineteenth century statutes, like earlier First Congress acts, allowed officers to broadly delegate to agents not referred to as officers or appointed pursuant to the Appointments Clause, who could act in the delegating officer’s name with binding effect.[20]  For example, statutes allowed tax collectors and shipping commissioners who were not heads of department to appoint “deput[ies]” who acted as their alter egos, or to “depute” duties to others, for whose conduct the delegating officer remained “responsible.”[21]  Another statute allowed the Secretary of War to “delegate” authority to remove or destroy vessels blocking waterways to an “agent of the United States,” who was termed “an officer or agent,”[22] implying that delegation to a nonofficer “agent” did not effect an appointment to office.  Nineteenth-century Attorney General opinions deemed such persons performing a delegating officer’s duties nonofficers and indicated that the Appointments Clause did not govern their appointments.[23]

Nineteenth-century jurisprudence similarly distinguished officers responsible for performing duties directly vested in their positions by statute from agents delegated comparable authority by a responsible officer, and indicated that this difference mattered for constitutional purposes.[24]  Thus, for example, United States v. Smith[25] held that a clerk was not an officer requiring appointment by a head of department because he was not “charged by some act of congress with duties,” but instead performed tasks “assigned to him by [an officer].”[26]  And United States v. Eaton[27] similarly indicated that officers can delegate responsibilities to others acting on their behalf, even when the delegatees could not constitutionally exercise the same authority in their own name.  Specifically, it held that Congress had properly authorized the President to delegate authority to appoint an inferior officer to subordinates who were not themselves heads of department in whom Congress could directly vest such power.[28]

This judicial distinction between officers subject to the Appointments Clause and non-officer delegatees carried into the early twentieth century and has not been repudiated by the Supreme Court.  Just under a century ago, in its last opinion discussing delegatees’ constitutional status, the Court explained that an officer’s deputy “is not in the constitutional sense an officer of the United States” despite being “called upon to exercise great responsibility and discretion . . . .”[29]  It thus implied that delegation of even significant authority does not render a delegatee an officer.  And since the Court adopted its “significant authority” test for constitutional “Officer” status fifty years later,[30] all cases in which it has applied this test concerned positions assigned official duties by statute, rather than positions assigned significant authority solely by means of administrative delegations from officers.[31]  The Court has thus not repudiated earlier jurisprudence differentiating between administrative delegations of derivative responsibility for an officer’s statutory duties, which do not create offices, from offices to which statutes assign direct responsibility for such duties.  This jurisprudence therefore remains good law,[32] and adds an additional gloss to the “significant authority” test for officer status.

Such delegations do raise constitutional concerns when “delegatees” do not act as mere agents, but instead act as officers in their own right by exercising significant authority not derivative of the authority of a properly-appointed incumbent officer in whose name the delegatee acts.  And given Congress’s exclusive power to establish offices, delegations by officers also raise concerns if Congress has not “by Law” permitted the delegation.[33]  Early authorities indicated that a delegatee’s ability to act was coextensive with the statutory authority of the delegating officer[34] and thus, for example, terminated if the officer’s position was vacant.[35]  It follows that to avoid being subject to the Appointments Clause, delegatees may only exercise authority (1) vested by statute in an existing office that is (2) presently occupied (3) by a properly-appointed officer.[36]  Consequently, practices such as multimember agencies’ reliance on staff purportedly acting under delegated authority to take action that the agency heads cannot themselves take due to statutory quorum requirements,[37] or having “delegatees” exercise the powers of an office that is vacant,[38] which the article’s empirical findings suggest is a common occurrence,[39] do violate the Appointments Clause.  Apart from any potential defects in the delegatee’s appointment, they administratively create de facto offices, violating the mandate that offices “shall be established by Law.”[40]  Moreover, Congress’s control over the establishment of offices allows it to determine whether and on what terms officers may delegate, rendering administrative delegations ultra vires if not authorized by statute.[41]  But setting aside such scenarios, when administrative delegatees act on behalf of properly appointed incumbent officers authorized by statute to take the same actions and delegate to others, they are not constitutional “Officers,” and their appointment need not conform to the Appointments Clause, as the article argues.

Consequently, the article’s assertion that executive branch delegations to career civil servants violate the Appointments Clause’s rules for filling offices errs in light of clear precedent and well vetted history.  Indeed, the question of internal executive branch delegation touches not so much on the Appointments Clause’s rules for filling offices as on its rules for creating offices, because the Constitution only vests in Congress the power to establish “Offices.”  Thus, although administrative delegations raise Article II concerns in specific circumstances, such as during a vacancy in the principal’s office or when a statute does not authorize the delegation, no such concerns arise when statutorily authorized delegations permit career civil servants to exercise authority vested by statute in a properly appointed incumbent officer.

II. Administrative Delegations Do Not Raise the Constitutional Concerns Associated with Offices Vested with Statutory Removal Protections

Professors Feinstein and Nou also assert that administrative delegations to career staff with tenure protections create “submerged independent agencies,” analogous to independent agencies whose heads are protected from removal by statutory for-cause removal restrictions.[42]  They argue that these arrangements may raise the same constitutional concerns implicated by single-headed independent agencies and by statutes conferring dual for-cause removal protection, which preclude independent agency heads who themselves enjoy for-cause removal protection from freely removing subordinate officers.[43]  But because administrative delegations are formally and functionally distinguishable from offices assigned duties and for-cause removal protections by statute, they do not raise the same constitutional concerns.

As a formal matter, the Supreme Court has expressly limited its holding that at least some dual “for-cause” removal protections are unconstitutional to officials who are constitutional “Officers,”[44] and has similarly indicated that its holding prohibiting removal protections for single-member agency heads concerned “principal officers.”[45]  As previously explained in Part I, administrative delegatees do not ordinarily become officers by virtue of the powers delegated to them and thus do not fall within the express scope of these holdings.

From a functional perspective, because administrative delegatees are assigned duties administratively rather than by statute, and because statutes do not impose for-cause restrictions on terminating these delegations, these arrangements are legally distinct from offices that Congress has vested with removal protections.  Independent agency heads and other officers enjoying removal protection hold offices that are assigned authority by a statute that also limits the reasons for which the President or a superior officer can remove them from office and thereby deprive them of this authority.[46]  Because statutes tie these officers’ authority to their positions, depriving these officers of their authority typically requires firing them from these positions based on the specific grounds that Congress has permitted for removal.

In contrast, administrative delegatees wield authority because executive branch officers chose to delegate it to them.  And the same officers can freely withdraw this authority,[47] even when they cannot separate the delegatee from federal service, thereby making a delegatee’s status as a career-tenured employee largely immaterial.  The Supreme Court has treated such administrative withdrawal of authority that may fall short of complete separation from federal service as a form of removal in the constitutional sense that helps ensure control of subordinates.[48]  Given the absence of statutory for-cause limitations on such removal of authority from delegatees, and the delegating officer’s power to revoke even those regulations purporting to restrict discretion to deprive an administrative delegatee of authority,[49] courts deem delegatees to be serving qua delegatees at the will of the delegating officer for constitutional purposes.[50]

In fact, it may be easier in one respect to remove tenure-protected civil servants serving as delegatees from their role qua delegatees than to remove officers holding at-will positions that require Senate confirmation.  The executive branch can unilaterally reassign the delegatee’s responsibilities without obtaining Senate confirmation of a successor delegatee, and thus does not face a potential disincentive to exercise its removal power due to uncertainty over whether a more desirable replacement would win Senate approval.  In contrast, since the Founding Era, the requirement of Senate confirmation of a successor has been viewed as a powerful political constraint on the President’s power to remove officers enjoying no legal removal protections.[51]  This constraint does not apply to the withdrawal or reassignment of administrative delegations.

These differences make administrative delegations readily distinguishable from offices with statutory for-cause removal protections that the Supreme Court has struck down.  The Court held that these statutes interfered with presidential accountability and control over subordinates,[52] and were thus an improper congressional encroachment on presidential power.[53]  In contrast, Professors Feinstein and Nou acknowledge that in the context of administrative delegations, “the potential removal issue arises in this context only because of an executive branch actor’s decision to subdelegate authority.  The President, through control over that actor, could always revoke the subdelegation if exercised in an undesirable way.”[54]  The absence of any cause requirement to terminate the delegation makes the arrangement at-will, ensuring the continued accountability of the delegating officer and ultimately the President for a delegatee’s actions.[55]  And since statutes do not impose the arrangement or limit its termination, it does not raise the same concerns about congressional encroachment on presidential power.[56]

The article does flag a possible procedural hurdle to terminating delegations: the potential requirement to give notice in the Federal Register when revoking delegations that had been effected by published rule.[57]  But courts treat such minor procedural requirements applicable to nonsubstantive rulemaking[58] as negligible,[59] and agencies can in any event immediately revoke a delegatee’s authority through actual notice to the delegatee regardless of whether and when publication occurs.[60]  Moreover, the Supreme Court has distinguished such minor procedural hurdles from the for-cause removal protections that it has held unconstitutional.[61]  Congress therefore can—and does—make removal of officers serving at will more difficult as a practical matter,[62] and even when it does not expressly restrict removal, firing an officer may still be associated with residual legal hazards because of the risk that courts will read an implied removal protection into a statute.[63]  Minor procedural burdens on revoking administrative delegations therefore do not make these arrangements comparable to independent agencies.

Lastly, the article asserts that the Accardi doctrine, by barring delegating officers from denying legal effect to the prior acts of delegatees after revoking a delegation,[64] makes delegatees comparable to officers enjoying for-cause removal protections.[65]  But the same limitation applies to the acts of officials removeable at will.  When such officers lose their position, their prior acts remain valid, and continue to bind their successors and the Government as a whole.[66]

Thus, from a constitutional perspective, administrative delegations to tenured career staff are not analogous to independent agencies.  They do not raise the same constitutional concerns as statutory assignments of duties to officers whom Congress has protected from at-will removal.


The practice by political appointees of delegating broad authority to career civil servants has become pervasive in the modern administrative state and has drawn significant scholarly attention when used to assign “acting” duties in the vacancies context, but has otherwise not been examined in depth.  The few contemporary courts and scholars to have touched on the constitutional implications of the practice have usually assumed that such delegations create constitutional “Offices” subject to the constitutional strictures applicable to offices created by statute.   Professors Feinstein and Nou’s Submerged Independent Agencies offers an unprecedented and innovative empirical analysis of this practice and raises important policy questions about its desirability.  It also includes a legal discussion that proceeds from the usual premise that administrative delegations of significant authority create constitutional “Offices.”

The article’s resulting claim that the practice violates the Appointments Clause, due to the manner in which the civil service laws regulate hiring, overlooks contemporary and historical authorities indicating that similar laws regulating appointments to comparable positions do not violate the Clause.  More fundamentally, this assertion does not account for originalist and textual authorities, as well as longstanding historical practice and early jurisprudence, which indicate that agents administratively delegated power to act in the name of properly appointed incumbent officers do not hold an office subject to the Appointments Clause in the first place.

The article’s assertions about removal protections also overlook this formal distinction between officers and delegatees.  And they overlook important functional differences between administrative delegations created and revokable at will by the executive branch, and offices vested with official duties and removal protections by statute.  Contrary to the article’s assertions, these distinctions make administrative delegatees constitutionally distinct from independent agency heads or others who hold offices vested with for-cause removal protections, and therefore do not raise the same constitutional concerns as these statutory arrangements.  In the absence of such constitutional concerns, the propriety of administrative delegations is a policy issue that should be assessed based on the valid policy concerns identified by the authors.

* Senior Counsel (Litigation), Board of Governors of the Federal Reserve System. J.D., Georgetown; M.P.P., Harvard.  All opinions expressed herein are my own and do not necessarily reflect the views of the Board or the United States.  I am grateful for helpful suggestions by Professor Harold J. Krent on a prior draft.

[1] See, e.g., Valerie C. Brannon, Cong. Rsch. Serv., R44997, The Vacancies Act: A Legal Overview 6–7 (2022) (citing cases); Anne Joseph O’Connell, Actings, 120 Colum. L. Rev. 613, 633–34 (2020) (discussing use of delegations in lieu of statutory acting positions); Nina A. Mendelson, The Permissibility of Acting Officials: May the President Work Around Senate Confirmation?, 72 Admin L. Rev. 533, 559–63 (2020) (discussing reliance on “unsupervised delegation[s]” to address vacancies).

[2] See, e.g., In re Grand Jury Investigation, 916 F.3d 1047, 1049, 1051, 1052 (D.C. Cir. 2019) (holding that a Special Counsel delegated authority by the Attorney General was an “inferior officer”); Willy v. Admin. Review Bd., 423 F.3d 483, 491–92 (5th Cir. 2005) (describing statutes allowing a department head to administratively delegate duties as authorizing “creat[ion]” of offices); see also, e.g., O’Connell, supra note 1, at 683 (“[P]rofessionals who exercise delegated authority may be considered officers for Appointments Clause Purposes.”); E. Garrett West, Note, Congressional Power over Office Creation, 128 Yale L.J. 166, 226 (2018) (“[D]elegated responsibilities . . . can trigger officer status.”).

[3] Brian D. Feinstein & Jennifer Nou, Submerged Independent Agencies, 171 U. Pa. L. Rev. 945 (2023).

[4] Id. at 971–72.

[5] Id. at 1009–16.

[6] U.S. Const. art. II, § 2, cl. 2.

[7] Feinstein & Nou, supra note 3, at 999–1001.

[8] Id. at 1003–06.

[9] Id. at 999–1001.

[10] Brannon, supra note 1, at 6–7 (citations omitted).

[11] Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 512 n.13 (2010) (citing United States v. Smith, 124 U.S. 525, 532 (1888); United States v. Germane, 99 U.S. 508, 511 (1879); United States v. Hartwell, 73 U.S. (6 Wall.) 385, 393–94 (1867)) (department head approval of another official’s hiring decision satisfies the Appointments Clause); Jennifer L. Mascott, Who Are “Officers of the United States”?, 70 Stan. L. Rev. 443, 526, 551, 560–61 (2018) (citations omitted) (discussing longstanding acceptance by the political branches of statutes requiring appointing officials to select from candidates nominated by others or having specified qualifications).

[12] Feinstein & Nou, supra note 3, at 1001 (citing U.S. Const. art. II, § 2, cl. 2).

[13] See, e.g., Edmond v. United States, 520 U.S. 651, 664, 666 (1997) (ability to “remov[e]” administrative assignments to military judgeships was a factor that supported holding that military judges were inferior officers); In re Palo Alto Networks, 44 F.4th 1369, 1375 (Fed. Cir. 2022) (revocability of agency head’s delegation to tenure-protected officials rendered them inferior officers); In re Grand Jury Investigation, 916 F.3d 1047, 1052–53 (D.C. Cir. 2019) (even regulations requiring “cause” to terminate delegations are rescindable at will and thus do not render delegatees principal officers).

[14] Yonatan Gelblum, Why Congress Cannot Delegate Authority to Create Offices, but Can Authorize Administrative Delegations from Offices, 69 Wayne L. Rev. 385, 399–407 (2024); accord Steven G. Calabresi & Gary Lawson, Why Robert Mueller’s Appointment as Special Counsel Was Unlawful, 95 Notre Dame L. Rev. 87, 101–02 (2019) (citations omitted) (“[A] regulation . . . does not constitute the kind of ‘law’ that can create an office . . . .”); Seth B. Tillman, Why Our Next President May Keep His or Her Senate Seat: A Conjecture on the Constitution’s Incompatibility Clause, 4 Duke J. Const. L. & Pub. Pol’y 107, 140 n.48 (2009) (summarizing authorities).

[15] See, e.g., Mascott, supra note 11, at 542–45 (citations omitted) (discussing enactments by the Continental Congress, which allowed officers to directly appoint “deputies” for whose acts they were accountable, although the Articles of Confederation only permitted the Congress to appoint officers).  Compare also, e.g., 1 Samuel Johnson, A Dictionary of the English Language (London, J.F. & C. Rivington et al. 6th ed. 1785) (defining “deputy” as “[In law.]  One that exercises any office . . . in another man’s right, whose forfeiture or misdemeanour shall cause the officer . . . to lose his office”), with 2 Samuel Johnson, A Dictionary of the English Language (London, J.F. & C. Rivington et al. 6th ed. 1785) (defining “office” as “[a] publick charge”).

[16] During debate on inferior officer appointments, James Madison suggested that “Officers below Heads of Departments ought in some cases to have the appointment of the lesser offices,” to which Morris responded “[t]here is no necessity.  Blank Commissions can be sent.” 2 Records of the Federal Convention of 1787 627–28 (Max Farrand ed., 1911).

[17] See, e.g., Act of July 31, 1789, ch. 5, §§ 5, 6, 9, 27, 1 Stat. 29, 36–38, 44 (allowing a customs collector, who was not a head of department, to appoint deputies not referred to as “officers” to “execute and perform on his behalf, all and singular the powers, functions and duties of collector”); Mascott, supra note 11, at 515–20 (citations omitted) (giving additional examples); Gelblum, supra note 14, at 416–18 (citations omitted) (same).

[18] U.S. Const. art. I, § 8, cl. 18.

[19] Accord Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 500 (2010) (citation omitted) (“Congress has plenary control over . . . executive offices.”).

[20] Gelblum, supra note 14, at 419–20, id. nn. 245–250 (citations omitted).

[21] Act of June 7, 1872, ch. 322, § 3, 17 Stat. 262; Act of July 22, 1813, ch. 16, § 20, 3 Stat. 22, 30.

[22] Act of March 3, 1899, ch. 425, § 20, 30 Stat. 1121, 1154–55.

[23] Gelblum, supra note 14, at 420 (citations omitted); Aditya Bamzai, Symposium, The Attorney General and Early Appointments Clause Practice, 93 Notre Dame L. Rev. 1501, 1510–14 (2018) (citations omitted).

[24] Gelblum, supra note 14, at 410–11, id. at 410 n.175.

[25] 124 U.S. 525 (1888).

[26] Id. at 532.

[27] 169 U.S. 331 (1898).

[28] Id. at 336–37 (quoting 18 Rev. Stat. § 1695, which authorized the President to issue regulations governing vice-consul appointments), 339 (“It is plain that the [rulemaking provisions] confer upon the President full power, in his discretion, to appoint vice-consuls and [t]he regulations [authorizing appointment by consuls] come clearly within the power thus delegated.”), 343; Gelblum, supra note 14, at 411 (analyzing Eaton’s holding).

[29] Steele v. United States, 267 U.S. 505, 508 (1926).

[30] Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam); superseded in part by statute on other grounds, Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81, as recognized in McConnell v. Fed. Election Comm’n, 540 U.S. 93 (2003).

[31] Gelblum, supra note 14, at 397–99, 411 n.189 (citations omitted).

[32] Cf. Hohn v. United States, 524 U.S. 236, 252–53 (1998) (citation omitted) (“Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.”).

[33] Gelblum, supra note 14, at 420–24.

[34] The article notes that under the Accardi doctrine, delegation regulations bind delegating officers, Feinstein & Nou, supra note 3, at 962 (citing United States ex rel. Accardi v. Saughnessy, 347 U.S. 260, 268 (1954)); Thomas W. Merrill, The Accardi Principle, 74 Geo. Wash. L. Rev. 569 (2006)), and such delegations may therefore appear to diminish these officers’ power.  But the doctrine does not preclude these officers from freely reclaiming full authority by simply revoking these regulations, see United States v. Nixon, 418 U.S. 683, 696 (1974), and thus does not grant delegatees more power than the delegating officers can wield.

[35] See, e.g., Dudley v. James, 83 F. 345, 346–47 (C.C.D. Ky. 1897); Taylor v. Kercheval, 82 F. 497, 501 (C.C.D. Ind. 1897); accord United States v. Hartwell, 73 U.S. (6 Wall.) 385, 389 (1867) (referencing the Government’s argument that an officer “does not stand in the relation of a deputy with a tenure of office depending on the principal who appointed him; but he remains in office notwithstanding his principal may retire”); id. at 393 (where official was an officer, “[v]acating the office of his superior would not have affected the tenure of his place”); Tenure of the Off. of Deputy Collectors, 4 Op. Att’ys Gen. 26, 27 (1842) (“[I]n the case of a removal of the collector from office, his deputy has no authority to act; . . . the powers of the deputy expire with those of the principal.”).

[36] See Gelblum, supra note 14, at 424–26, 430–32; accord Bamzai, supra note 23, at 1510–11.

[37] Gelblum, supra note 14, at 425–26.

[38] See, e.g., Mendelson, supra note 1, at 559–63 (giving examples).

[39] Feinstein & Nou, supra note 3, at 988–91 (noting numerous “midnight delegations” by outgoing administrations).

[40] U.S. Const. art. II, § 2, cl. 2; Gelblum, supra note 14, at 424–26, 431–32.

[41] Gelblum, supra note 14, at 420–22; Stephen Migala, Delegation Inside the Executive Branch, 24 Nev. L.J. 147, 220–21 (2023); see also United States v. Giordano, 416 U.S. 505, 513–14 (1974).

[42] Feinstein & Nou, supra note 3, at 953.

[43] Id. at 1003–07.  But see id. at 1005–06 (noting that the ubiquity of delegations may lend them constitutional legitimacy).

[44] Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 506 (2010).

[45] Seila Law LLC v. CFPB, 591 U.S. 197, 238 (2020).

[46] See, e.g., 38 U.S.C. § 7306(a)(5)–(10), (d)(3) (establishing authority and tenure protections of Veterans Health Administration officers); see also, e.g., 49 U.S.C. §§ 1111(c), 1131 (establishing authority and tenure protections of National Transportation Safety Board members).

[47] Although the article notes that under the Accardi doctrine, regulations delegating authority bind delegating officers, Feinstein & Nou, supra note 3, at 962, the doctrine does not preclude them from simply revoking these regulations.  United States v. Nixon, 418 U.S. 683, 696 (1974); see also In re Grand Jury Investigation, 916 F.3d 1047, 1052–53 (D.C. Cir. 2019) (officer could freely revoke regulations requiring cause to remove a delegatee and thereby dismiss the incumbent at will).

[48] Edmond v. United States, 520 U.S. 651, 664 (1997) (a superior’s ability to withdraw an administrative assignment to serve as a military judge was a form of “remov[al]” serving as “a powerful tool for control”).

[49] In re Grand Jury Investigation, 916 F.3d at 1052.

[50] Id. at 1052–53; accord In re Palo Alto Networks, 44 F.4th 1369, 1375 (Fed. Cir. 2022).

[51] Aaron L. Nielson & Christopher J. Walker, Congress’s Anti-Removal Power, 76 Vand. L. Rev. 1, 5 (2023) (citing The Federalist No. 76, at 457 (Alexander Hamilton) (C. Rossiter ed., 1961)); accord Michael B. Rappaport, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487, 1516 n.81 (2005) (restricting the President’s ability to appoint acting officials to Senate-confirmed positions limits presidential removal powers).

[52] See, e.g., Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 496 (2010).

[53] Id. at 502 (“Congress cannot reduce the Chief Magistrate to a cajoler-in-chief.”).

[54] Feinstein & Nou, supra note 3, at 1007.

[55] Gelblum, supra note 14, at 414; see also In re Grand Jury Investigation, 916 F.3d at 1052–53; accord Free Enter. Fund, 561 U.S. at 483 (citation omitted).

[56] Cf. Decker Coal Co. v. Pehringer, 8 F.4th 1123, 1133–34 (9th Cir. 2021) (when an agency could elect not to use tenure-protected adjudicators, their tenure protections did not unconstitutionally diminish the President’s authority).

[57] Feinstein & Nou, supra note 3, at 986 (citing 5 U.S.C. §§ 551(5), 552, 552(a)(3)).

[58] The Administrative Procedure Act exempts “matter[s] relating to agency management” and “rules of agency organization, procedure, or practice” from its elaborate notice-and-comment mandates for substantive rules.  5 U.S.C. § 553(a)(2), (b)(A).

[59] See, e.g., Hoctor v. U.S. Dep’t of Agric., 82 F.3d 165, 167 (7th Cir. 1996) (“There are no formalities attendant upon the promulgation of an interpretive rule” exempted from notice-and-comment by 5 U.S.C. § 553(b)(A)); accord In re Grand Jury Investigation, 916 F.3d at 1052–53 (a delegatee purportedly granted tenure protections by agency regulations “effectively serves at the pleasure of an Executive Branch officer” due to the delegating officer’s ability to revoke the regulation).

[60] 5 U.S.C. § 552(a), (a)(1)(B)–(C) (agency’s “statements of the general course and method by which its functions are channeled” and “rules of procedure” bind persons with “actual and timely notice” regardless of publication in the Federal Register).

[61] Collins v. Yellen, 141 S. Ct. 1761, 1785 n.19 (2021) (describing the Comptroller of the Currency as “removable at will” despite a requirement that the President “communicate the reasons for” removal to Congress).

[62] See Nielson & Walker, supra note 51, at 52–54.

[63] See Severino v. Biden, 71 F.4th 1038, 1047–48 (D.C. Cir. 2023).

[64] Cf. United States ex. rel. Accardi v. Shaughnessy, 347 U.S. 260, 266–67 (1954) (holding that an agency must comply with its delegation regulations).

[65] Feinstein & Nou, supra note 3, at 1007.

[66] See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 167–68 (1803) (act of prior President’s Secretary of State bound the subsequent administration); see also Gary Lawson, Command and Control: Operationalizing the Unitary Executive, 91 Fordham L. Rev. 441 (2023) (“[U]nlimitable presidential removal power . . . would not actually result in full presidential control . . . as the actions of now-fired subordinates would still exist as law . . . .”).

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Checking Out [of] Acheson Hotels – Michael E. Rosman

Posted by on May 31, 2024 in Per Curiam

Checking Out [of] Acheson Hotels – Michael E. Rosman
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Checking Out [of] Acheson Hotels

Michael E. Rosman*

This brief essay explores a few of the strange features of the Supreme Court’s recent case of Acheson Hotels, LLC v. Laufer.[1] That case involved a requirement under an Americans with Disabilities Act (ADA) regulation that hotels identify the features of their accommodations to allow individuals with disabilities to assess whether the accommodation would meet their needs. The Court dismissed the appeal of Acheson Hotels on mootness grounds.[2] I briefly explore the peculiar way that the Court made factual findings in its opinion – as it always does, without the benefit of any serious examination of evidence – and then express some reservations about Justice Thomas’s so-called “concurrence.”

The rule in question was promulgated pursuant to ADA’s prohibition of discrimination on the basis of disability in “any place of public accommodation,” which includes hotels.[3] The rule in question (the “Reservation Rule”) requires places of lodging, “with respect to reservations made by any means,” to “[i]dentify and describe accessible features in the hotels and guest rooms offered through its reservations service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs.”[4] Deborah Laufer, who is bound to a wheelchair, was a serial plaintiff.[5] She alleged that Acheson Hotels owned a bed and breakfast in Maine, the Coast Village Inn, the website for which took reservations but failed to provide sufficient information to allow her to assess whether the rooms there met her needs.[6] It appeared to be conceded that she had no actual interest in staying at the Coast Village Inn, and was simply acting as a “tester.”[7] Courts have split as to whether such testers – mostly Ms. Laufer as it turns out – have standing.[8] The District Court had held that she did not, but the First Circuit reversed.[9]

After the Court granted the petition for writ of certiorari, a district court in the Fourth Circuit suspended one of her attorneys (apparently in a different lawsuit) for improper practices in representing her.[10] Laufer then voluntarily dismissed in the various district courts all of her pending suits with prejudice, including the case whose appeal was before the Court, and filed a suggestion of mootness with the Court.[11] The Court agreed that the case was moot, and vacated the judgment of the First Circuit, remanding with “instructions to dismiss the case as moot.”[12]

The Court acknowledged that it did not have to dismiss the case as moot. Because jurisdictional issues can be addressed in any order, and since both standing and mootness are jurisdictional issues, it could have deferred the mootness question and decided it only after determining that Laufer had standing.[13] And that is just what Justice Thomas, who for a variety of reasons thought the standing question the more important one, would have done.[14] Importantly for our purposes, Justice Thomas thought that “the circumstances strongly suggest strategic behavior on Laufer’s part.”[15]

The Court was not convinced that Laufer had acted strategically.[16] Thus, both the majority and Justice Thomas made factual determinations which they used to support their conclusions about whether the mootness issue should be decided before the standing issue: the majority saw no strategic behavior on Laufer’s part; Justice Thomas did. The important thing to note, though, is that each made a factual determination about her motivation for the dismissals of her lawsuits in the district courts.

Our system of justice has a method for resolving disputed factual issues: it is called a trial. If, in the district court, there were some question about Laufer’s motivation for something – say, whether she was truly interested in visiting the Coast Village Inn, as she initially alleged – she would be deposed and examined. If there were still some dispute, her attorney likely would put her on the stand under oath before the judge and she would be further examined and cross-examined. The judge would determine whether Laufer was a credible witness, and that determination would be given deference on appeal.

Apparently, using this time-honored system to make factual determinations is too inconvenient for the Court. But it does not say that; it simply makes the factual determinations. It does this in other contexts too. The Court has said, for example, that petitioners before it, and appellants before the courts of appeals, must have appellate standing.[17] To meet this bar, an appellant must show that (s)he has suffered an injury traceable to the judgment below.[18] For a defendant, this will mean that an injunction or some similar kind of relief precludes it from engaging in conduct that it would otherwise be able to. In Camreta v. Greene,[19] the Court held that one of the appellants no longer had standing because he was no longer employed in the position that he held at the outset of the litigation.[20] But the Court only knew this because the parties had said so in their briefs.[21] What if they hadn’t? Or what if only one of them contended that a defendant no longer had the same duties as previously, and thus would have no further interest in reversing or modifying a judgment that constrained him when it was issued, and other parties disagreed with that factual contention. How does the Court resolve that issue?

Although there is nothing in its rules specifically authorizing a delegation to a special master, the Court uses this procedure with some frequency when cases are filed pursuant to its original jurisdiction.[22] There does not seem to be any reason why it could not do so in other contexts when it is forced to make a factual determination. It strikes me as a better way of proceeding than the current system, which appears to be nothing more than the Justices’ off-the-cuff – it would be disrespectful to say knee-jerk, right? – reactions to a set of circumstances that may or may not constitute all the facts available.

*                             *                               *

As noted, Justice Thomas wrote an opinion labelled “concurring in the judgment.”[23] Before addressing the substance of his opinion, we can ask two preliminary questions. First, did his opinion, in fact, concur in the judgment of the Court? Second, did his opinion actually support vacating the judgment of the First Circuit (as opposed to reversing that judgment)?

One would have to adopt a very narrow understanding of a “judgment” to conclude that Justice Thomas concurred in the Court’s judgment. The Court held: “The judgment is vacated, and the case is remanded to the United States Court of Appeals for the First Circuit with instructions to dismiss the case as moot.”[24] Justice Thomas said that “I respectfully concur in the judgment because I would vacate and remand, with instructions to dismiss for lack of standing.”[25] To call this a “concurrence” in the Court’s judgment means that the specific “instructions” that accompanied the “vacate and remand with instructions” are irrelevant to the judgment. It would be akin to concurring in a judgment that vacated and remanded a lower court judgment for “proceedings consistent with this opinion” while disagreeing with everything in the Court’s opinion.[26]

I also doubt that Justice Thomas’s opinion actually calls for the vacatur of the First Circuit’s judgment. He did not say that he would remand back to the First Circuit for the correct analysis consistent with his opinion. Rather, he said that the First Circuit’s ultimate conclusion (that Laufer had standing) was wrong; she did not, in fact, have standing according to Justice Thomas. No further analysis was needed. When the Court concludes that the lower court got the outcome wrong (and not merely that its analysis was wrong), that conclusion calls for reversing the judgment.[27]

Justice Thomas’s analysis of the substantive standing question also had a few pieces missing. Justice Thomas concluded that Laufer did not have standing because she did not assert a violation of “a right under the ADA, much less a violation of her rights.”[28] He distinguished an early Fair Housing Act case, Havens Realty Corp. v. Coleman,[29] which involved other kinds of “testers” – those who inquired about the availability of housing. In Havens Realty, the Court had held that black testers who received false information about the availability of housing because of their race had standing because the Fair Housing Act made it illegal “[t]o represent to any person because of race, color, religion, sex, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available.”[30] This section, according to the Court in Havens Realty, gave persons a “legal right to truthful information,”[31] and those given false information thus had standing.

Justice Thomas said that the ADA provides “no . . . statutory right to information” analogous to Section 3604(d) of the Fair Housing Act.[32] But Justice Thomas never gave a particularly good explanation as to why the Reservation Rule did not provide that right.

Notably, someone else might have argued that more recent standing cases, requiring a “concrete and particularized” injury in fact, have essentially whittled Havens Realty away.[33] But Justice Thomas himself has been surprisingly resistant to this trend. He has particularly favored broad standing for the vindication of private rights, with much deference to Congress in defining those rights and no need to limit standing to those with “concrete and particularized” injuries.[34] He has cited Havens Realty as an exemplar of his view.[35] And he distinguishes such private rights from “public rights,” based on obligations owed to the community as a whole. For “public rights,” a plaintiff’s standing does require a “concrete” and “particularized” injury.[36] For Justice Thomas, then, Laufer’s standing should have depended solely on whether the ADA (or the Reservation Rule) created a private right (similar to a common-law right) or a public right. He concluded that it did not create a private right because the ADA “prohibits only discrimination based on disability – it does not create a right to information.”[37]

But why did the Reservation Rule not create such a right? Justice Thomas mentioned one possibility, but only in passing: Congress passed Section 3604(d), whereas the Reservation Rule was just a regulation promulgated by the Department of Justice.[38] But Justice Thomas did not rely on this distinction at all. Indeed, his analysis “assum[ed] a regulation could – and did – create such a right.”[39] The rest of his analysis and his conclusion, though, suggest that he viewed it as a “public right” and not a “private right.” Why?

One possibility – not discussed at length in Justice Thomas’s opinion – is the language of the Reservation Rule. Unlike Section 3604(d), the Reservation Rule did not make it illegal to communicate something to “any person” (although that surely is its effect). When lower courts applied Havens Realty to Section 3604(c) of the Fair Housing Act, which makes it illegal to make any statement
“with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, or national origin,”[40] some courts gave standing to anyone who read a discriminatory advertisement, but others distinguished Havens Realty on the ground that Section 3604(c) did not specifically use the phrase “any person” in describing the audience to which the statement could not be made.[41] The difficulty with this distinction, though, is that it is one that Congress or any agency easily could draft around. A rule that requires hotel owners’ communications to each disabled individual (even communications that could be read by more than one individual) to include information that would allow that disabled individual to assess the accessibility of a hotel probably circumvents the problem.

After positing that the ADA and/or the Reservation Rule was not the source of any right similar to a common-law right, Justice Thomas easily concluded that Laufer lacked standing. Unlike “private rights,” Justice Thomas believes that asserting a “public right” (one owed to the public at large) does require a “concrete and particularized” injury.[42] Laufer had not suffered such an injury because she was a tester and had no intention of traveling to Maine to visit the Coast Village Inn.[43] “Her lack of intent to visit the hotel or even book a hotel room elsewhere in Maine eviscerates any connection to her purported legal interest in the accessibility information required by the Reservation Rule.”[44] Laufer was just a private attorney general, monitoring and ensuring compliance with the law just as a government official might.[45]

Of course, Laufer’s status as a tester was not much different from the testers in Havens Realty, who were described as “individuals who, without an intent to rent or purchase a home or apartment, pose as renters or purchasers for the purpose of collecting evidence of unlawful steering practices.”[46] So despite the attention he paid to her “tester” status, the meat of Justice Thomas’s analysis was not that she was a tester, but rather his underdeveloped distinction between the FHA and the Reservation Rule.

*                   *                    *

The first decision of the term is often straightforward, unanimous, and without nuance. For those interested in procedural and jurisdictional twists, though, Acheson Hotels presents some fascinating issues to ponder and a fine leadoff hitter for this year’s lineup of cases.

* General Counsel, Center for Individual Rights.  J.D., 1984, Yale Law School; B.A., 1981 University of Rochester.

[1] 144 S. Ct. 18 (2023).

[2] Id. at 22.

[3] 42 U.S.C. § 12182(a). The definitions in the previous section include “an inn, hotel, motel, or other place of lodging” whose operations affect commerce as a “place of accommodation,” but excepts an establishment in which the proprietor lives, and which has no more than five rooms to rent or hire. 42 U.S.C. § 12181(7)(A).

[4] 28 CFR § 36.302(e)(1)(ii).

[5] Acheson Hotels, 144 S. Ct. at 20 (“sued hundreds of hotels”).

[6] Id. at 23 (Thomas, J., concurring).

[7] Id. at 20 (majority opinion) (Laufer “does not focus her efforts on hotels where she has any thought of staying, much less booking a room.”); id. at 23 (Thomas, J., concurring) (“Laufer initially alleged that she was planning to visit the Coast Village Inn … [b]ut she later disclaimed any intent to travel to Maine (or the Coast Village Inn)”).

[8] Id. at 21 (majority opinion) (“Laufer has singlehandedly generated a circuit split.”).

[9] Id. at 23 (Thomas, J., concurring).

[10]Id. at 21 (majority opinion). Specifically, the District Court for the District of Maryland suspended one of her lawyers for defrauding hotels by lying in fee petitions and during settlement negotiations, demanding $10,000 in fees when the work did not seem to warrant it and funneled money to the father of Laufer’s grandchild for non-existent work. Id. The suspension order had been vacated by the Fourth Circuit after oral argument but before the Court’s opinion. Id. at 21 n.1.

[11] Id. at 21.

[12] Id. at 22.

[13] Id. at 22.

[14] Thomas opined that standing was “logically antecedent to whether her later actions mooted the case,” and the standing issue “is a recurring question that only this Court can definitively resolve.” Id. at 23–24 (Thomas, J., concurring).

[15] Id. at 24. See also id. at 24 (“I would not reward Laufer’s transparent tactic for evading our review. . . . [W]e have needlessly invited litigants to follow Laufer’s path to manipulate our docket.”).

[16] Id. at 22 (majority opinion) (“We are not convinced, however, that Laufer abandoned her case in an effort to evade our review.”).

[17] West Virginia v. EPA, 142 S. Ct. 2587, 2606 (2022).

[18] Id. The requirement that an appellant show an injury traceable to a judgment is one that the Court discards when it wishes. See, e.g., Camreta v. Greene, 563 U.S. 692, 702-03 (2011) (holding that parties who prevailed in the court below can appeal if they claim harm from something in the lower court’s opinion).

[19] 563 U.S. 692 (2011).

[20] Id. at 710 n.9.

[21] Id.

[22] E.g., Mississippi v. Tennessee, 142 S. Ct. 31, 38 (2021) (noting that special master supervised motions practice, discovery, and a five-day evidentiary hearing); Texas v. New Mexico, 344 U.S. 906, 906 (1952) (appointing special master with “authority to summon witnesses, issue subpoenas, and take such evidence as may be introduced and such as he may deem it necessary to call for.”).

[23] Acheson Hotels, LLC v. Laufer, 144 S. Ct. 18, 22 (Thomas, J., concurring).

[24] Id. at 22 (majority opinion).

[25] Id. at 27 (Thomas, J., concurring).

[26] Justice Jackson also concurred in the judgment. Id. at 27 (Jackson, J., concurring). Although she disagreed with the equitable remedy of vacatur under United States v. Munsingwear, Inc., 340 U.S. 36 (1950), she agreed that vacatur was consistent with the Court’s established practice. Id. at 27.

[27] See Chafin v. Chafin, 568 U.S. 165, 177 n.3 (2013). There, the Eleventh Circuit had concluded that an order granting custody to the mother in a dispute governed by the Hague Convention on the Civil Aspects of International Child Abduction was moot because once the child had been taken overseas (to Scotland), a court was powerless to change that status. Id. at 171. The Supreme Court disagreed, and stated that a reversal of (as opposed to vacating as moot) the District Court’s judgment, which was based on its conclusion that the child’s habitual residence was Scotland, could change the prevailing-party analysis that the District Court used to award the mother court costs, fees, and expenses.

[28] Acheson Hotels, 144 S. Ct. 18, 25 (Thomas, J., concurring).

[29] 455 U.S. 363 (1982).

[30] 42 U.S.C. § 3604(d).

[31] Havens Realty, 455 U.S. at 373. See also Acheson Hotels, LLC v. Laufer, 144 S. Ct. 18, at 25 (Thomas, J., concurring). Of course, this is not true. Section 3604(d) only gives people the right not to be given false information that housing is unavailable for particular reasons (race, sex, etc.). False information that housing is available, or false information that it is unavailable given for some other reason (an agent thinks the customer is not a good prospect or just wants to go home) does not violate the Fair Housing Act.

[32] Acheson Hotels, 144 S. Ct. at 25 (Thomas, J., concurring).

[33] TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021) (holding that individuals who received false information from credit reporting agency that was not promulgated to third parties lacked standing); Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) (holding that statutory requirement of reasonable procedures to assure maximum accuracy in consumer reports still required plaintiff to show a “concrete” injury aside from a report with inaccurate information).

[34] E.g., TransUnion, 141 S. Ct. at 2214 (Thomas, J., dissenting) (arguing that, in the context of private rights, a violated legal right was an alternative to the “injury in fact” requirement); Spokeo, 578 U.S. at 347 (Thomas, J., concurring) (“the concrete-harm requirement does not apply as rigorously when a private plaintiff seeks to vindicate his own private rights”); id. at 348 (“A plaintiff seeking to vindicate a statutorily created private right need not allege actual harm beyond the invasion of that private right.”). In Spokeo, Justice Thomas suggested that one provision of the Fair Credit Reporting Act of 1970 provided a private right to assure reasonable procedures to assure maximum possible accuracy of information concerning the individual about whom the report relates. Id. at 349. Precisely why Justice Thomas could not make that determination based on a straightforward reading of the statute, and instead concurred in the Court’s judgment to remand the case, is not clear.

[35] TransUnion,141 S. Ct. at 2218 (Thomas, J., dissenting); Spokeo, 578 U.S. at 348 (Thomas, J., concurring)

[36] Spokeo, 578 U.S. at 348 (Thomas, J., concurring).

[37] Acheson Hotels, LLC v. Laufer, 144 S. Ct. at 25 (Thomas, J, concurring).

[38] Id. at 26 (“assuming a regulation could – and did – create . . .  a right [to accessibility information] . . .”).

[39] Id.

[40] 42 U.S.C. § 3604(c).

[41] Compare Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898, 904 (2d Cir. 1993) (holding that anyone who reads an advertisement allegedly violating § 3604(c) has standing to sue), with Wilson v. Glenwood Intermountain Properties, 98 F.3d 590, 595 (10th Cir. 1996) (holding that cases like Ragin take Havens Realty “too far” because Section 3604(c) does not use the phrase “any person”). Curiously, when faced with the standing issue raised by Acheson Hotels, the Second Circuit held that plaintiffs in Laufer’s position did not have standing – without ever mentioning Harry Macklowe. Harty v. West Point Realty, Inc., 28 F.4th 435, 444 & n.3 (2d Cir. 2022) (affirming dismissal of disabled plaintiff’s lawsuit against hotel for website that allegedly failed to meet requirements of Reservation Rule).

[42] Spokeo, Inc. v. Robins, 578 U.S. 330, 348 (2016) (Thomas, J., concurring).

[43] Acheson Hotels, LLC v. Laufer, 144 S. Ct. at 24 (Thomas, J., concurring).  

[44] Id. See also id. at 26 (“Acheson Hotels’ failure to provide accessibility information on its website is nothing to Laufer, because she disclaimed any intent to visit the hotel.”).

[45] Id. at 26–27.

[46] Havens Realty Corp. v. Coleman, 455 U.S. 363, 373 (1982).

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The Next Big States’ Rights Case Might Not Be What You Think – O.H. Skinner & Beau Roysden

Posted by on May 27, 2024 in Per Curiam

The Next Big States’ Rights Case Might Not Be What You Think – O.H. Skinner & Beau Roysden
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The Next Big States’ Rights Case Might Not Be What You Think

A Supreme Court Petition Out Of Hawaii Could Reshape The State Sovereignty Landscape

O.H. Skinner & Beau Roysden*

The arguments have ended for the 2023 U.S. Supreme Court term, with blockbusters soon to be decided.  As some of us start to look over the horizon to the 2024 Supreme Court term, which is just starting to come into focus, there is a blockbuster state sovereignty case from the Hawaii Supreme Court that is looming as a potential addition to the argument calendar.  The case, Sunoco LP v. City and County of Honolulu, Hawaii, No. 23-947, involves an effort by local Honolulu authorities to impose liability on a bevy of energy companies for the effects of global climate change.  It is a salient example of a growing wave of cases in which local governments seek money and policy priorities through state court public nuisance litigation over climate change.  And it is the first of these cases to reach the U.S. Supreme Court in a real merits posture that would allow for a fulsome ruling covering the universe of these public nuisance cases over nationwide problems.

While Sunoco v. Honolulu has attracted widespread attention for its topic (climate change) and the size of the monetary awards it could produce (which surely total in the billions), it is more interesting for those of us who are lovers of state sovereignty for what it could mean for the protection of equal sovereignty between the states, and for how it could short-circuit the efforts of local governments to use state-law public nuisance claims to accomplish backdoor nationwide-regulation-by-judicial-fiat for a long list of policy areas.

I.  Sunoco v. City and County of Honolulu

Sunoco LP v. City and County of Honolulu is scheduled to be conferenced on June 6, at the tail end of the Supreme Court’s term and an opportune time for a grant of certiorari from a Court that has filled very little of its October Term 2024 docket.[1]  But the litigation began on March 9, 2020, when the City and County of Honolulu filed a complaint against over a dozen entities affiliated with corporate giants Sunoco, ExxonMobil, Royal Dutch Shell, Chevron, BHP Group, BP, Marathon Petroleum, and ConocoPhillips.[2]

In pressing their complaint, the City and County of Honolulu (“Honolulu”) alleged both public and private nuisance.[3]  The nuisance in question is global climate change.  More specifically, Honolulu alleged that the various defendants were (1) “directly responsible for the substantial increase in all CO2 emissions between 1965 and the present”; (2) “directly responsible for a substantial portion of the climate crisis-related impacts on Plaintiffs,” including a rise in “average sea level . . . along the County’s coastline,” and “extreme weather” such as “hurricanes,” “tropical storms,” and “‘rain bomb’ events”; and (3) should be forced to “bear the costs of those impacts, rather than the City[,] . . . residents, or broader segments of the public.”[4]  Honolulu asked for relief totaling billions of dollars, including “compensatory damages” and “equitable relief, including abatement of the nuisance,” which would undoubtedly entail building infrastructure in Hawaii and changes to corporate behavior outside of Hawaii.[5]

The Honolulu lawsuit is a representative example of a growing wave of state court public nuisance cases that have become a key avenue for local governments to try to obtain money and policy outcomes by judicial edict.[6]  These cases are particularly prevalent on the issue of climate change, with climate change public nuisance actions filed by cities and counties from Maryland to Colorado and from South Carolina to California.[7]  The climate change cases take a consistent approach, claiming that global climate change has caused billions of dollars of damage to the county or city, requiring not just monetary but also equitable relief to abate (i.e., undo) the effects of climate change.[8]

Like virtually all of these cases, the Honolulu case was removed to federal court before eventually being remanded back to Hawaii state courts.[9]  Once back in state court, the Honolulu lawsuit went on a fast track to the Hawaii Supreme Court.  The energy companies moved to dismiss on three grounds: (1) lack of specific jurisdiction; (2) federal common law preemption; and (3) federal Clean Air Act preemption.[10]  The trial court denied the motions to dismiss and defendants appealed, at which point the Hawaii Supreme Court granted Honolulu’s application for transfer from the Intermediate Court of Appeals, putting the case before the Hawaii Supreme Court on the central question of whether a public nuisance claim over global climate change and the emission of greenhouse gases can proceed under state law in the face of federal common law and federal statutory regulation through the Clean Air Act.[11]  The Hawaii Supreme Court issued its decision on October 31, 2023, rejecting each basis for dismissal, conclusively determining the scope of federal common law and the scope of the Clean Air Act and confirming that the claims were not preempted on their merits by federal law and could proceed past a motion to dismiss.[12]

Petitions for certiorari are now pending at the Supreme Court of the United States, marking perhaps the first real opportunity for the Court to address the merits of this new wave of state public nuisance claims and how they properly interact with federal law when the identified nuisance is national or international in scope.  Petitioners filed for Supreme Court review on February 28, 2024.  Honolulu filed in opposition to certiorari on May 1, and Petitioners put forth their reply arguments on May 15.  At least ten amicus briefs have been filed, with the most notable perhaps being the brief filed by twenty state attorneys general, authored by the Alabama Attorney General’s Office.  The case has attracted substantial attention from elite academics and other commentators.[13]  It will be conferenced in a matter of weeks, with a likely decision on grant or denial of certiorari by the time the Court closes its usual calendar for the summer.

II.  Honolulu Is Really A State Sovereignty Case Above All Else

In many circles, Honolulu is misunderstood as a case pitting two camps against each other in a fight over the importance of global climate change and the concomitant culpability of energy companies.  A classic headline of the genre came from Fast Company shortly after the Hawaii Supreme Court’s decision: “Why Honolulu’s Big Oil lawsuit just became ‘the most important climate case in the United States.’”[14]  Indeed, it is hard to find a high-profile write-up of the case that doesn’t focus on the public policy fight over climate change and the role of the case in that fight, especially once the Hawaii Supreme Court greenlit a trial that could begin this year.[15]

While ideological combat over climate change drives headlines, and cases featuring potential judgments in the billions of dollars likewise attract attention, the case is far more interesting for what it could mean for the protection of equal sovereignty between the states.

The state sovereignty issue is front and center in the Honolulu litigation because public nuisance cases at their core involve “abatement of the nuisance”—undoing the alleged nuisance—and Honolulu has requested abatement and other equitable relief relating to global climate change.[16]  When the identified nuisance relates to “the substantial increase in all CO2 emissions between 1965 and the present,” abatement necessarily implicates nationwide policy and adjustment of the defendants’ actions far from Hawaii.  This is especially true when you remember that carbon emissions (the culprit behind global climate change in this case) mix in our atmosphere, meaning it is impossible to ensure that the defendants are lowering the emissions that are causing the alleged nuisance in Hawaii without forcing them to change their operations throughout the country (and the world).  And all of this is before considering the simple scope of the monetary relief and its implications for national policy: when the effects of the identified nuisance in one city or county equal billions in alleged damages (as here), the abatement aspect of the case will necessarily implicate (at least) nationwide public policy choices and the future operation of the defendants across all the states.

And state sovereignty isn’t a hidden aspect of the Honolulu litigation; the intent of the climate change public nuisance cases seems focused on fundamentally shifting our nationwide approach to energy, as can be seen in even a casual perusing of the comments from the public officials who are filing these cases.  Indeed, the commentary class recognizes this; as one commentator in Slate succinctly put it in discussing the Honolulu litigation: “climate change litigation has fueled hopes that Big Oil will soon be called to account—and, perhaps, change or die.”

Perhaps unsurprisingly, this state sovereignty aspect of the Honolulu litigation received substantial attention from the twenty state attorneys general in their amicus brief before the U.S. Supreme Court.  The state attorneys general open their brief with state sovereignty, explaining that “[t]his suit is an affront to the equal sovereignty of Amici States and a dire threat to their policy choices.”[17]   They go on to detail how “[t]he theory behind this suit [] would trample over every State’s sovereignty to regulate energy and other activity within its borders” in light of the need for equitable relief and abatement “to reach conduct everywhere to redress the alleged injuries.”[18]  The states also focus on the billions in monetary relief as a state sovereignty issue, most notably by asking, “how much lawful conduct in other States can Hawaii deem tortious?”[19]  The states then end their brief with not just a plea for a grant of certiorari to protect the national economy—something that echoes much of the media commentary critical of the Honolulu litigation—but also a plea for the U.S. Supreme Court to grant certiorari as a way to protect “our federal scheme” from “any further damage.”[20]

As the amici states note, the state sovereignty questions are particularly strong in this case because the alleged nuisance is global climate change.  But it is important to note that any public nuisance litigation over a national or international issue implicates many of the same state sovereignty questions.

This state sovereignty overlay to the modern wave of local-government public nuisance cases over nationwide issues (and single-state cases along the same lines) is a key differentiator of these cases from longstanding public nuisance applications to local issues like blocked roads or site-specific air or land disruption.  The modern public nuisance cases over supposed nationwide nuisances all implicate the same core sovereignty questions as are presented in Honolulu precisely because they implicate nationwide abatement and return to that key question: “how much lawful conduct in other States can [a single state or local government] deem tortious?”

The state sovereignty questions here are also distinct from the long-running battle over intra-state regulation and the dormant commerce clause.  It is one thing for a large state like California to impose stringent rules in its own state that it knows will effectively force a company to change the products it sells or produces in another state, or that California hopes will have that effect.  It is an entirely different—and novel—sovereignty analysis when a state launches a lawsuit to impose liability for out-of-state activity and affirmatively demands changes to behavior outside the state under common law theories like public nuisance.

If federalism says that a state should be free to largely regulate within its own boundaries, it is easy to see why states in many cases view these public nuisance efforts over nationwide issues as being something like a form of anti-federalism, and why these cases as a category, and the Honolulu litigation in particular, present major sovereignty implications, even as most headlines focus on the money at stake and the contentious underlying policy question of how to properly address climate change.

III.  If The Court Takes Up Honolulu, It Could End The Modern Public Nuisance Movement

The Supreme Court granting certiorari in the Honolulu litigation would make sense at a fundamental level, as the case involves a state supreme court decision analyzing the contours of federal law and determining the divide between state and federal regulatory authority in a high-stakes dispute involving potentially billions of dollars of liability.  And that is how most commentators seem to be thinking of the case and its potential outcomes.

But the case is also a strong contender for Supreme Court review because of its state sovereignty implications, which the state attorneys general have now well put to the Court.  And in resolving the case on the merits, the Court could deliver a state sovereignty win that would echo across the full range of modern public nuisance cases, not just cases about climate change.

Some on the ideological left and right may envision that any merits decision in the Honolulu litigation would involve the U.S. Supreme Court determining the extent of climate change, its causes, or some other contentious aspect of the climate change policy debate.  But none of that is necessary.  Indeed, the most straightforward way for the Court to address the case on the merits and do good for the law would be a ruling limiting state-law public nuisance litigation to local nuisances, rather than allowing these cases to reach beyond state boundaries and be used as a cudgel to wage nationwide policy fights through the courts.  This approach would leave state law public nuisance claims for traditional nuisances while practically constraining the reach of such claims.  And this approach would: (1) match with ascendant doctrinal thinking at the Court, and (2) do the most for state sovereignty by essentially ending the practice of local governments pressing state law public nuisance litigation over nationwide issues like gun violence, climate change, or the next ascendant public policy debate at a national level.

Limiting state law public nuisance claims, like those pressed in the Honolulu litigation, to local (or at least intra-state) nuisances would comport with the thinking the Court has applied in other areas in recent years.  For starters, limiting state law public nuisance claims to local issues comports with the Court’s approach to separation of powers questions as well as federalism case law that is focused on protecting residual state sovereignty within our federal system.

But perhaps most notably, limiting the use of state law public nuisance claims to address nationwide issues would match with the considerations at play in the Court’s ascendant Major Questions Doctrine jurisprudence.  The Court has made plain in its Major Questions Doctrine jurisprudence—from Alabama Association of Realtors through Biden v. Nebraska—that it is uncomfortable with federal agencies finding newfound power to resolve questions of “vast economic and political significance” without clear statutory authorization.[21]  While this line of cases is focused on federal agency power, it would be entirely consistent with the ideological underpinnings of the Major Questions Doctrine for the same Court to prevent local governments from flexing a newfound power to suddenly effect nationwide policy solutions via a public nuisance authority that has until recently not been used for anything resembling this type of effort.  The same structural and procedural problems that arise from sudden federal agency aggrandizement in the absence of clear statutory authority arise from the sudden aggrandizement of local governments who, in the words of the state amici in the Honolulu litigation, suddenly believe they have the power to use state courts to “deem tortious” substantial amounts of “lawful conduct in other States.”[22]

And limiting public nuisance like this would strike a broad blow in favor of state sovereignty by short-circuiting the universe of these public nuisance cases over nationwide problems. The Honolulu lawsuit is a representative example of a growing wave of modern public nuisance cases about supposed nationwide nuisances, all of which implicate the same core sovereignty questions as are presented in the Honolulu litigation because they implicate nationwide abatement and the question put forth by amici states: “how much lawful conduct in other States can [a single state or local government] deem tortious?”  Left-wing localities and activists have increasingly turned to public nuisance litigation targeting nationwide issues as they recognize that their policy goals cannot get past the post in Congress or most statehouses, leaving local governments to use public nuisance claims to accomplish backdoor nationwide-regulation-by-judicial-fiat in a long list of policy areas.  A U.S. Supreme Court merits decision in Honolulu limiting the national reach of state-court public nuisance lawsuits would reach beyond climate change litigation to constrain these efforts by local governments (and others). Such a ruling would effectively mark the end of public nuisance litigation over firearms, plastic bottles, and countless other policy fights.  This would, in turn, put control for each of these issue areas into the hands of the state officials, putting states into ascendancy and maximally protecting state sovereignty.[23]

*                       *                       *

If you care about the separate, equal sovereignty of the states, keep your eye on Sunoco v. Honolulu.  The Honolulu litigation might walk and talk like a case purely about climate change, but underneath is a tantalizing opportunity for the Supreme Court to hand states a huge sovereignty win and reshape the way policy fights happen in the courts for years to come.  That certainly makes the case more likely to be granted and gives good reason for us all to pay attention to it as it goes to conference.  It is also a good reminder that the next big states’ rights case isn’t always the case you might think.

* O.H. Skinner and Beau Roysden are the two most recent former Arizona Solicitors General, both serving the immediate past Arizona Attorney General, Mark Brnovich.

[1]  See October Term 2024, SCOTUSBlog, https://www.scotusblog.com/case-files/terms/ot2024/ [https://perma.cc/A572-AMXK] (noting mere eight cases on Supreme Court’s calendar for October Term 2024 as of date of article publication).

[2]  Complaint, City & Cnty. of Honolulu v. Sunoco LP, Circuit Court of Appeals of the First Circuit, State of Hawaii (March 9, 2020), available at https://climatecasechart.com/wp-content/uploads/case-documents/2020/20200309_docket-1CCV-20-0000380_complaint.pdf [https://perma.cc/9JZA-FEWN].

[3]  Id.

[4]  First Amended Complaint, City & Cnty. of Honolulu v. Sunoco LP, Circuit Court of Appeals of the First Circuit, State of Hawaii (March 22, 2021), available at https://climatecasechart.com/wp-content/uploads/case-documents/2021/20210322_docket-1CCV-20-0000380_complaint.pdf [https://perma.cc/RM4M-D9KF].

[5]  Id. at 115.

[6]  Public Nuisance Revealed: The Leftwing Plan To Reshape Our Society, Alliance For Consumers, March 2023, https://allianceforconsumers.org/wp-content/uploads/2023/03/AFC-Public-Nuisance-Report-Final.pdf [https://perma.cc/2TQP-67W4].

[7]  Id.

[8]  Id.

[9] City & Cnty. of Honolulu v. Sunoco LP, 537 P.3d 1173, 1182 (Haw. 2023).

[10] Id. at 1184.

[11] Id. at 1184–85 (discussing circuit court’s ruling on motion to dismiss and transfer of appeal).

[12] Id. at 1207–08 (summarizing holdings).

[13]  See, e.g., Richard A. Epstein and John Yoo, Honolulu Tries to Mug Energy Companies, Wall Street Journal, April 15, 2024, https://www.wsj.com/articles/honolulu-tries-to-mug-energy-companies-lawsuit-supreme-court-climate-df244ce5 [https://perma.cc/LH4G-X2A8]; Donald Kochan, The Supreme Court must decide this issue on climate lawsuits someday. Why not do it now?, The Hill, May 21, 2024, https://thehill.com/opinion/judiciary/4670553-scotus-has-to-decide-this-issue-on-climate-lawsuits-someday-why-not-do-it-now/ [https://perma.cc/9GFM-5VNB].

[14]  Emily Sanders, Why Honolulu’s Big Oil lawsuit just became “the most important climate case in the United States,” Fast Company, November 6, 2023, https://www.fastcompany.com/90977799/why-honolulus-big-oil-lawsuit-just-became-the-most-important-climate-case-in-the-united-states [https://perma.cc/8VF3-ZPKP].

[15] See, e.g., John Culhane, There Are Nearly 2,500 Climate Lawsuits. This Is the One to Watch, Slate, November 20, 2023, https://slate.com/news-and-politics/2023/11/hawaii-climate-lawsuit-honolulu-weather.html [https://perma.cc/Q678-YVNR ]; Jennifer Hijazi, Oil Giants Lose Hawaii Climate Appeal, Pushing Case to Trial, Bloomberg Law, October 31, 2024, https://news.bloomberglaw.com/environment-and-energy/oil-giants-lose-hawaii-climate-appeal-pushing-case-to-trial [https://perma.cc/8C8T-W6HW].

[16] First Amended Complaint, City & Cnty. of Honolulu v. Sunoco LP, Circuit Court of Appeals of the First Circuit, State of Hawaii (March 22, 2021), available at https://climatecasechart.com/wp-content/uploads/case-documents/2021/20210322_docket-1CCV-20-0000380_complaint.pdf [https://perma.cc/RM4M-D9KF].

[17]  Brief of Alabama and 19 Other States as Amici Curiae in Support of Petitioner at 1, Sunoco LP v. City & Cnty. of Honolulu, Hawaii, No. 23-947.

[18]  Id. at 7–8.

[19]  Id. at 9.

[20]  Id. at 22.

[21] See, e.g., Biden v. Nebraska, 600 U.S. 477 (2023); West Virginia v. EPA, 597 U.S. 697 (2022); Alabama Ass’n of Realtors v. Dep’t. of Health & Hum. Servs., 141 S. Ct. 2320 (2021).

[22] Brief of Alabama and 19 Other States as Amici Curiae in Support of Petitioner at 9, Sunoco LP v. City & Cnty. of Honolulu, Hawaii, No. 23-947.

[23] See, e.g., Petition for Writ of Mandamus of State of Ohio, In re National Prescription Opiate Litigation, No. 20-3075 (6th Cir., filed Aug. 30, 2019), at 10–11 (“The counties advance claims that belong to the State,” which, if allowed to proceed, “will cripple the federal dual-sovereign structure of these United States.”), available at https://static.reuters.com/resources/media/editorial/20190903/opioidsMDL–ohioAGmandamus.pdf [https://perma.cc/M6Z7-FUDJ].

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Textualism and the Eighth Amendment – Judge Thomas M. Hardiman

Posted by on Apr 2, 2024 in Obiter Dicta, Per Curiam

Textualism and the Eighth Amendment – Judge Thomas M. Hardiman
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Textualism and the Eighth Amendment

Judge Thomas M. Hardiman*

Thank you for the generous invitation to be part of the Laurence Silberman Distinguished Judicial Lecture Series. Judge Silberman was my administrative law professor at Georgetown over thirty years ago. Unfortunately, at that time I had neither an appreciation for the value of judicial clerkships nor an understanding of the privilege of being taught by one of the lions of the D.C. Circuit. I’m sorry that Judge Silberman isn’t with us to comment on my remarks—no doubt he would have had opinions to offer.

My topic today is textualism and the Eighth Amendment. In 2015 Justice Elena Kagan returned to Harvard Law School to give the Antonin Scalia Lecture. While engaging with now-Dean John Manning about interpreting statutes and Justice Scalia’s profound influence on that task, Justice Kagan quipped: “We’re all textualists now.”[1] Supreme Court decisions since have tracked that observation.

For example, in Kennedy v. Bremerton School District[2] the Court put the nail in the coffin of the Lemon test, which Justice Scalia had likened to “some ghoul in a late-night horror movie.”[3] In abrogating that three-part test, the Court returned to the text, history, and tradition of the First Amendment’s Establishment Clause. So too with the Second Amendment. In New York State Rifle & Pistol Association v. Bruen, the Court rejected the two-step approach that had been applied by many lower courts, including our own Third Circuit.[4] Writing for the Court, Justice Thomas concluded that the first step of the lower court test—whether the “challenged law regulates activity falling outside the scope of the right as originally understood”[5]—was consistent with Heller’s emphasis on the text of the Second Amendment “as informed by history.”[6] But the second step—means-end scrutiny—was “one step too many.”[7]

As with these constitutional decisions, the Supreme Court has focused on text in statutory interpretation cases. Take two recent decisions. In Niz-Chavez v. Garland, the Court decided an important immigration case arising under Title 8.[8] The case involved a notice to appear in immigration court and the decision turned on the word “a.” Writing for the Court, Justice Gorsuch held that the notice had to be in a single document, “not a mishmash of pieces with some assembly required.”[9] Justice Kavanaugh, joined by the Chief Justice and Justice Alito, dissented because he thought the majority was too literal.[10]

Six weeks later, the Court decided a case that turned on the word “so” in the Computer Fraud and Abuse Act.[11] In Van Buren v. United States, a police officer was convicted of violating the Act when he ran a license-plate search on a law enforcement database in exchange for money.[12] Everyone agreed that Van Buren violated policy by obtaining the information for an illicit purpose. But the Court held that Van Buren did not “access to obtain or alter information in the computer that [he] is not entitled so to obtain or alter.”[13] Justice Thomas read the text differently and his dissent was joined by the Chief Justice and Justice Alito.[14]

Some scholars have viewed these opinions as hyper-literal.[15] Regardless of whether that criticism is apt, these cases show how seriously today’s Supreme Court engages with the text of the law at issue.

The Court’s reliance on textualism and originalism in recent years is hard to square with its Eighth Amendment jurisprudence. As my colleague and then-Chief Judge Brooks Smith wrote for the en banc Third Circuit two years ago: “the Supreme Court’s Eighth Amendment jurisprudence has abjured constitutional interpretation in favor of challenges based on Court-created prophylactic rules.”[16]

The Supreme Court’s 2012 decision in Miller v. Alabama illustrates Judge Smith’s point. In that case, the Court held unconstitutional mandatory life sentences without the possibility of parole for juvenile offenders.[17] In doing so, the Court applied “the evolving standards of decency that mark the progress of a maturing society.”[18] That test has two serious problems: its provenance is illegitimate, and its application empowers judges to exercise unbounded discretion.

The “evolving standards of decency” first appeared in Trop v. Dulles, a 1958 decision offering an especially weak justification for the Court to abandon the Eighth Amendment’s text.[19] A careful examination of Trop shows that “the evolving standards of decency” test is “bad wine of recent vintage.”[20]

In 1944, American Private Albert Trop escaped from the stockade while deployed abroad, but the United States Army quickly captured him.[21] A court martial convicted Trop of desertion, dishonorably discharged him, and sentenced him to three years’ hard labor and salary forfeiture. Eight years later, Trop was denied a United States passport because, by statute, desertion forfeited his citizenship.[22]

Trop sued, and the district court entered judgment against him.[23] The Second Circuit, with Judge Learned Hand writing, affirmed the district court. Chief Judge Clark dissented, contending that Trop’s Eighth Amendment right to be free from cruel and unusual punishment was violated.[24] In the majority opinion, Judge Hand explicitly refused to address the Eighth Amendment argument because it had not been raised at oral argument or in the proceedings below.[25] According to Judge Hand, the closest Trop came to arguing the point was a passing reference that expatriation violates due process.[26]

Chief Judge Clark’s dissent was just two paragraphs. In lieu of judicial reasoning, he “merely incorporate[d] by reference” an unsigned student law review comment because he “doubt[ed] if [he] c[ould] add to the persuasive arguments there made.”[27] The comment argued that expatriation constituted cruel and unusual punishment, and Chief Judge Clark apparently found the argument so persuasive that a mere citation sufficed to justify his dissent.[28]

Trop appealed. In a 4-1-4 decision, the Supreme Court reversed the Second Circuit.[29] Writing for the plurality, Chief Justice Earl Warren began by referencing a companion case, Perez v. Brownell,[30] and stated that the principles espoused there essentially decided Trop.[31] The Chief Justice explained that the national government lacks the power to deprive Americans of citizenship involuntarily, though citizens may expatriate themselves voluntarily.[32] After just three paragraphs, Chief Justice Warren concluded: “On this ground alone the judgment in this case should be reversed.”[33] Though that was enough to decide the case, he did not end his opinion there. Instead, he turned to the unrelated Eighth Amendment question. In doing so, Chief Justice Warren waxed historical: “The Court recognized in [Weems v. United States, 217 U.S. 349 (1910)] that the words of the Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”[34] With this dictum—involving an issue the Second Circuit explicitly refused to address and that was unnecessary to the decision in Trop—the Supreme Court planted a seed that has sprouted into controlling Eighth Amendment law some sixty-five years later.

The “evolving standards of decency” became the law of the land against substantial odds. The phrase went unmentioned in the Supreme Court for ten years after Trop, until it surfaced in a footnote in a death-penalty case.[35] And it was then quoted only in passing in seven death-penalty cases in the 1970s.[36]

Nearly two decades after its introduction in Trop, the phrase was mentioned for the first time in a non-capital case, Estelle v. Gamble.[37] There, Gamble claimed the prison failed to provide him adequate medical care in violation of the Eighth Amendment.[38] The district court dismissed the case for failure to state a claim, but the Fifth Circuit reversed.[39] The Supreme Court reversed the Fifth Circuit and ruled against Gamble on the facts as pleaded.[40] Yet Justice Thurgood Marshall, writing for the Court, discussed the evolving constitutional law in this area and wrote: “we have held repugnant to the Eighth Amendment punishments which are incompatible with ‘the evolving standards of decency that mark the progress of a maturing society.’”[41] With that statement, the Court first established the evolving standards of decency as a constitutional test.

While Justice Marshall accurately quoted Trop, it was not, as he suggested, the Court’s holding. Recall that Chief Justice Warren stated that the Eighth Amendment must “draw its meaning” from the evolving standards of decency; he did not establish a new, “evolving” constitutional test.[42] So the Court in Estelle v. Gamble elevated Trop’s dicta to a constitutional test.

The test lay dormant for years, until it reappeared as a standard bearer for the view that the Constitution’s meaning changes over time. That process began during the 1980s. The test was first mentioned in several dissents in death penalty cases[43] before it appeared in a 1987 majority opinion written by Justice Powell.[44] Two years later, Justice O’Connor’s majority opinion in Penry v. Lynaugh used the standard again, but there the Court held that executing a man with mental disabilities did not violate the Eighth Amendment.[45] Penry was overruled in 2002 in Atkins v. Virginia, which held there was a national consensus against executing the mentally disabled.[46] Writing for the Court in Atkins, Justice Stevens cited Trop and the evolving standards of decency.[47]

In 2005, the Court decided Roper v. Simmons, where a 5-4 decision effectively overruled a 1989 decision (Stanford v. Kentucky), which had rejected the proposition that the Constitution bars capital punishment for juvenile offenders.[48] In Roper, 17-year-old Christopher Simmons said he and his co-conspirators could “get away with” murder because they were minors.[49] The Supreme Court, Justice Kennedy writing, reasoned that Thompson v. Oklahoma’s logic, proscribing the death penalty for those younger than 16, applied with equal force to those under 18.[50] Justice Kennedy also noted that the United States was the only country that permitted juvenile executions.[51] Justice Stevens (joined by Justice Ginsburg) concurred, venturing that our Constitution changes sometimes.[52]

Justice O’Connor dissented. As did Justice Scalia, who was joined by Chief Justice Rehnquist and Justice Thomas. Significant for our purposes, Justice O’Connor accepted the premise that the Eighth Amendment is not static and must draw its meaning from the evolving standards of decency.[53] Justice Scalia rejected that premise. Instead, he cited Federalist 78, where Hamilton insisted that the judiciary, bound by “strict rules and precedents,” “ha[s] neither FORCE nor WILL but merely judgment.”[54] Justice Scalia then wrote, in his typically understated way: “What a mockery today’s opinion makes of Hamilton’s expectation, announcing the Court’s conclusion that the meaning of our Constitution has changed over the past 15 years—not, mind you, that this Court’s decision 15 years ago was wrong, but that the Constitution has changed.”[55]

With this evolving understanding in mind, the Court applied the test in earnest. In 2008, in a 5-4 decision, the Court decided Kennedy v. Louisiana, which held unconstitutional a Louisiana statute that provided for the death penalty for a defendant who rapes a child when the crime neither resulted in, nor was intended to, result in death.[56] Writing for the Court, Justice Kennedy started with the proportionality principle mentioned by the Court in its 1910 decision in Weems.[57] He then cited Trop for the proposition that the Eighth Amendment draws meaning from the evolving standards of decency and noted that social standards embody variable moral judgments.[58]

In 2010, the Court held unconstitutional a life-without-parole sentence for a man who committed armed burglary five weeks before his eighteenth birthday.[59] Justice Kennedy began his legal analysis by quoting Trop’s evolving standards of decency.[60]

In 2012, the Court issued yet another 5-4 opinion, this time with Justice Kagan writing. In Miller v. Alabama, the Court held that mandatory life sentences without the possibility of parole violated the Eighth Amendment rights of two 14-year-old offenders whom the states had tried as adults and convicted of murder.[61] Justice Kagan began her legal analysis by quoting Trop, and she reiterated the primacy of the evolving standards of decency that mark the progress of a maturing society.[62] She reasoned that the case “implicate[d] two strands of precedent” about “proportionate punishment.”[63] The confluence of those two lines suggested that mandatory life without the possibility of parole for juveniles violated the Eighth Amendment.[64] But she concluded that the Court’s decision mandated only a certain process (i.e., consider the offender’s youth) before imposing a particular penalty.[65]

And in 2014, the Court issued another 5-4 Eighth Amendment decision in Hall v. Florida.[66] In his opinion for the Court, Justice Kennedy again began by referencing the evolving standards of decency.[67] The opinion focused on IQ-score social science. Among other considerations, it emphasized that experts recognize the test’s imprecision. Noting that intellectual disability is a condition, not a number, Justice Kennedy wrote that “[a] State that ignores the inherent imprecision of these tests risks executing a person who suffers from intellectual disability.”[68]

Such is the history of the evolving standards of decency test. It is marked by an illegitimate pedigree and the substitution of judicial preferences about penological policy for the will of the People.[69]


The cases just discussed produced vigorous dissents. The three separate dissents in Miller—the case about mandatory life imprisonment without parole for minors—illustrate well the strong disagreements among the justices in this area.

Chief Justice Roberts noted that although the case presented “grave and challenging questions of morality and social policy,” the majority did not characterize life without the possibility of parole for juveniles as “unusual.”[70] He then observed that some 2,500 prisoners were serving life without parole for murders committed before age 18.[71] Noting that it was not unusual for murderers to receive that sentence,[72] the Chief Justice wrote: “[D]ecency is not the same as leniency. A decent society protects the innocent from violence.”[73] And “[t]o say that a sentence may be considered unusual because so many legislatures approve it stands precedent on its head.”[74] He criticized the majority for invalidating laws of “dozens of [state] legislatures and Congress.”[75] The Chief Justice concluded with a warning: “This process has no discernible end point.”[76]

In dissent, Justice Thomas wrote that the lines of precedent that the majority relied on did not adhere to the original understanding of the Cruel and Unusual Punishments Clause.[77] Based on that understanding, the Clause does not have a proportionality principle.[78] Justice Thomas concluded by explaining the Court was trying to shift from “‘merely’ divining the societal consensus of today to shaping the societal consensus of tomorrow.”[79]

Justice Alito also dissented. He quoted Trop’s evolving language and argued that it was problematic from the start.[80] Justice Alito asked: “Is it true that our society is inexorably evolving in the direction of greater and greater decency? Who says so . . . ?”[81] He concluded by stating the Court’s “Eighth Amendment cases are no longer tied to any objective indicia of society’s standards.”[82]

These dissents show how the Court has strayed far from the text and original meaning of the Eighth Amendment. And they also show that the Court has applied the evolving standards of decency inconsistently.[83]

Will the Court return to the text and original public meaning of the Eighth Amendment as it has done with the First and Second Amendments and statutory cases? It’s hard to say. Two years ago, the Court in Jones v. Mississippi held that the Eighth Amendment doesn’t require the sentencing court to find that a minor is permanently incorrigible before imposing a life-without-parole sentence. [84] And the Court did so without mentioning the evolving standards of decency test. Justice Sotomayor filed a dissent, and, perhaps notably, she broke from the traditional practice of dissenting “respectfully.”[85]  Justice Sotomayor lamented that the Court “gut[86] its previous precedents Miller v. Alabama and Montgomery v. Louisiana.[87] Justice Thomas agreed with Justice Sotomayor that the Court effectively overruled past precedent, criticizing the majority for what he called its “strained reading of Montgomery” and its failure to admit that the decision is “irreconcilable with Miller.”[88] But Justice Thomas concurred in the judgment of the Court because he would have rejected Montgomery.[89] Justice Sotomayor responded by opining that Justice Thomas “seek[s] to relitigate old Eighth Amendment battles based on arguments this Court has previously (and often) rejected.”[90] So though Justice Thomas returned to first principles in his concurrence, he stood alone in that regard.

*           *           *

The story of the evolving standards of decency test—from its questionable creation in Trop v. Dulles, through a decade of dormancy, its recurrence in death penalty cases, and its recent transformation into the law of the land—has created more problems than it has solved. Its inscrutable standards require judges to eschew the law as written in favor of their own moral sentiments. The only constant is that more and more laws adopted by the People’s representatives have been nullified. And the People have no practical way to reverse this contrived ratchet.

If the Supreme Court continues to apply “the evolving standards of decency” test, what will be the next stop on this runaway train of elastic constitutionalism? As Chief Justice Roberts cautioned over a decade ago: there is “no discernable end point.”[91]


* Remarks of Judge Hardiman for the Laurence Silberman Distinguished Judicial Lecture Series, Harvard Law School, October 18, 2023.

[1] Harvard Law School, The Antonin Scalia Lecture Series: A dialogue with Justice Elena Kagan on the Reading of Statutes (Nov. 25, 2015).

[2] 142 S. Ct. 2407, 2419 (2022).

[3] Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (1993) (Scalia, J., concurring).

[4] 142 S. Ct. 2111, 2126 (2022).

[5] Id. at 2126 (quoting Kanter v. Barr, 919 F.3d 437, 441 (7th Cir. 2019)).

[6] Id. at 2127.

[7] Id.

[8] 141 S. Ct. 1474, 1479 (2021).

[9] Id. at 1480.

[10] Id. at 1491 (Kavanaugh, J., dissenting) (arguing that, although “a good textualist is not a literalist,’” the majority “relie[d] heavily on literal meaning.” (quoting Antonin Scalia, A Matter of Interpretation 24 (1997))).

[11] 18 U.S.C. §1030(e)(6).

[12] 141 S. Ct. 1648, 1653 (2021).

[13] 18 U.S.C. § 1030(e)(6) (emphasis added).

[14] Van Buren, 141 S. Ct at 1662 (Thomas, J. dissenting).

[15] See, e.g., Kevin Tobia et. al., Progressive Textualism, 110 Geo. L.J. 1437, 1447 (2022) (“Neither ordinary people nor professional linguists reduce sentences to tiny words such as ‘a’ or ‘so’ as have recent Supreme Court opinions.”); Bill Watson, Literalism in Statutory Interpretation: What Is It and What Is Wrong with It?, 2021 U. Ill. L. Rev. Online 218, 229–30 (2021) (“[T]he majority opinions in Bostock, and to a lesser extent in Niz-Chavez, were literalistic.”).

[16] United States v. Grant, 9 F.4th 186, 197 (3d Cir. 2021) (en banc).

[17] Miller v. Alabama, 567 U.S. 460, 469 (2012).

[18] Id. at 469 (quoting Estelle v. Gamble, 429 U.S. 97, 102 (1976)).

[19] See 356 U.S. 86, 101 (1958) (plurality opinion).

[20] Cf. TRW Inc. v. Andrews, 534 U.S. 19, 37 (2001) (Scalia, J., concurring in judgment).

[21] See Trop, 356 U.S. at 87.

[22] Id. at 88.

[23] Id.

[24] Trop v. Dulles, 239 F.2d 527, 530 (2d Cir. 1956) (Clark, C.J., dissenting).

[25] Id. at 529–30.

[26] Id. at 530.

[27] Id. (Clark, C.J., dissenting) (citing Comment, The Expatriation Act of 1954, 64 Yale L.J. 1164, 1189–99 (1955)).

[28] See id.; see also Comment, supra note 27 at 1178–82.

[29] Trop, 356 U.S. at 91.

[30] 356 U.S. 44 (1958).

[31] Trop, 356 U.S. at 91–92.

[32] Id. at 92–93.

[33] Id. at 93.

[34] Id. at 100–01 (emphasis added).

[35] Witherspoon v. Illinois, 391 U.S. 510, 519 n.15 (1968).

[36] McGautha v. California, 402 U.S. 183, 202 (1971); Furman v. Georgia, 408 U.S. 238, 242 (1972) (Douglas, J., concurring); McLamore v. South Carolina, 409 U.S. 934, 936 (1972) (Douglas, J., dissenting from denial of certiorari); Sellars v. Beto, 409 U.S. 968, 970–71 (1972) (Douglas, J., dissenting); Gregg v. Georgia, 428 U.S. 153, 173 (1976) (plurality opinion); Woodson v. North Carolina, 428 U.S. 280, 301 (1976) (plurality opinion); Roberts v. Louisiana, 428 U.S. 325, 336 (1976) (plurality opinion).

[37] 429 U.S. 97, 102 (1976).

[38] Id. at 101–02.

[39] Gamble v. Estelle, 516 F.2d 937 (5th Cir. 1975).

[40] Gamble, 429 U.S. at 107–08.

[41] Id. at 102 (quoting Trop, 356 U.S. at 101).

[42] Trop, 356 U.S. at 100–03.

[43] See, e.g., California v. Ramos, 463 U.S. 992, 1028 (1983) (Marshall, J., dissenting); Gray v. Lucas, 463 U.S. 1237, 1244 (1983) (Marshall, J., dissenting from denial of certiorari); Autry v. McKaskle, 465 U.S. 1090, 1091 (1984) (Brennan, J., dissenting from denial of certiorari); Wainwright v. Witt, 469 U.S. 412, 461 (1985) (Brennan, J., dissenting).

[44] McCleskey v. Kemp, 481 U.S. 279, 300 (1987).

[45] 492 U.S. 302, 330–31, 340 (1989).

[46] 536 U.S. 304, 316–17 (2002).

[47] Id. at 311–12. In his Atkins dissent, Justice Scalia cited Trop’s language not because he believed it was a proper analytical tool, but to argue that even applying that standard, there was no consensus against the practice because 18 states (or 47% of the death penalty states) permitted the execution of the mentally disabled. Id. at 341–43 (Scalia, J., dissenting).

[48] 543 U.S. 551, 574 (2005) (abrogating 492 U.S. 361, 109 (1989)).

[49] Id. at 556.

[50] Id. at 570–71.

[51] Id. at 575.

[52] Id. at 587 (Stevens, J., concurring).

[53] See id. at 594, 604 (O’Connor, J., dissenting). In Roper, Justice O’Connor also criticized the Missouri Supreme Court’s failure to follow Stanford, which she called clear error. Id. at 593–94. She also noted that since Stanford, six states had executed people under 18. Id. at 595. And there was no genuine national consensus on this matter as there were over 70 juveniles on death row in 12 states. Id. at 596.

[54] Id. at 607 (Scalia, J., dissenting) (quoting The Federalist No. 78, p. 465 (C. Rossiter ed. 1961)).

[55] Id. at 608.

[56] 554 U.S. 407, 413 (2008).

[57] Id. at 419 (citing Weems v. United States, 217 U.S. 349, 367 (1910)).

[58] Id. (citing 356 U.S. 86, 101).

[59] Graham v. Florida, 560 U.S. 48 (2010).

[60] Id. at 58. (quoting 356 U.S. 86, 101).

[61] 567 U.S. at 465–66, 468 (2012). In Miller, one murder involved the shooting of a video store proprietor during a robbery in which defendant Jackson was a co-conspirator. Id. at 465–66. The second murder was particularly heinous, with Miller beating a man with a baseball bat while proclaiming: “I am God, I’ve come to take your life.” Id. at 468. Miller and his co-conspirators returned to burn down the victim’s trailer. Id.

[62] Id. at 469–70 (quoting 356 U.S. 86, 101).

[63] Id. at 470.

[64] Id.

[65] Id. at 483.

[66] 572 U.S. 701 (2014).

[67] Id. at 708 (quoting 356 U.S. 86, 101); see also id. at 708–09 (discussing policy rationales).

[68] Id. at 723.

[69] E.g., Graham, 560 U.S. at 67.

[70] Miller, 567 U.S. at 493 (Roberts, C.J., dissenting).

[71] Id. at 493–94.

[72] See id. at 494.

[73] Id. at 495.

[74] Id. at 497.

[75] Id. at 498.

[76] Id. at 501.

[77] Id. at 502–03 (Thomas, J., dissenting).

[78] Id. at 503–04. As Justice Thomas recognized in dissent, id. at 507, the Court had declined extending the individualized sentencing rule beyond the death penalty context some twenty years prior: “There can be no serious contention . . . that a sentence which is not otherwise cruel and unusual becomes so simply because it is ‘mandatory.’” Harmelin v. Michigan, 501 U.S. 957, 995 (1991) (citing Chapman v. United States, 500 U.S. 453, 467 (1991)).

[79] Miller, 567 U.S. at 509.

[80] Id. at 510 (Alito, J., dissenting).

[81] Id.

[82] Id. at 514.

[83] See, e.g., John F. Stinneford, Evolving Away from Evolving Standards of Decency, 23 Fed. Sent’g Rep. 87, 88–89 (2010) (delineating the current test’s erosion); id. at 89–90 (applying the original meaning to come to consistent results with a stable test).

[84] 141 S. Ct. 1307, 1319 (2021).

[85] Id. at 1328 (Sotomayor, J., dissenting) (“I dissent”).

[86] Id.

[87] Id.

[88] Id. at 1323 (Thomas, J. concurring).

[89] Id. at 1328.

[90] Id. at 1336 n.4.

[91] Miller, 567 U.S. at 501 (Roberts, C.J., dissenting).

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