Electronic appendices

The Fourth Circuit has given notice that the rules are being changed to require the appendix be filed in electronic form, in its entirety or in the form of an "excerpt" containing specified documents. How long will it be before that Court dispenses with paper filing?

Victory of the blue pencil, and how broccoli trumped wheat

We read in contract law, especially in Virginia, that the parties have freedom of contract and the courts do not get to make new contracts for the parties. In some other states, in some kinds of cases, courts are allow to enforce contracts to the extent that they are reasonable. The figure of speech for this sort of judging is the blue pencil.

Chief Justice Roberts took the blue pencil to the Affordable Care Act this week, in the National Federation of Independent Business v. Sebelius. He whacked out some bits and rewrote others, upholding the "mandate" on what the ABA Journal has noted was the "Solicitor General's third backup argument" that barely made it into the argument or the briefs. The characterization of the mandate as a "tax" was what led the Fourth Circuit to bypass the merits in one of its earlier panel decisions, because of the Anti-Injunction Act, in Liberty University v. Geithner.

It has been reported this week that Chief Justice Roberts fashioned himself after Justice Robert Jackson, who is one of my favorites, too. (My favorite story about Justice Jackson is retold here.) Justice Jackson's most famous opinion, I suspect, was his opinion for the Court in Wickard v. Filburn, upholding the Agricultural Adjustment Act as a valid exercise of Congress's power to regulate interstate commerce. Wickard is referenced at least 25 times in the Affordable Care Act opinions. Wickard was a case about wheat growing. Chief Justice Roberts' opinion imposes a new limit on Wickard where common wisdom supposed there was none.

Chief Justice Roberts rejected the Affordable Care Act as a valid exercise of the Commerce Clause, buying into what Justice Ginsburg called the "broccoli horrible" - and so the broccoli references (I counted 12) are second only to the wheat references (25) in the several opinions. Putting Wickard and Sebelius together, I conclude that the Interstate Commerce Clause allows Congress to prohibit you from growing your own vegetables, but does not allow Congress to pass a law that would punish you for refusing to eat them.

End of term fever

The Supreme Court issued four opinions today, but not the one that everyone was waiting for.

In Arizona v. U.S., the Court held that three provisions but not all of the Arizona statute dealing with illegal immigrants was preempted by federal law. Justices Scalia, Thomas, and Alito concurred in part and dissented in part in separate opinions.

In Miller v. Alabama, the Court by 5-4 vote struck down life sentences without the chance of parole for juvenile offenders. The dissenters pointed out that this is another in an increasing line of Eighth Amendment cases where the Court is just making it up based on its own reckoning of society's standards.

In Southern Union v. U.S., the Court held that the protections of the Sixth Amendment, that require a jury to make findings on elements of a criminal case that enhance sentencing, extend to matters involving criminal fines. In that case, the Defendant was fined $50,000 for 762 days for a continuing environmental law violation. The Defendant argued that the jury verdict had not necessarily determined a violation on more than one day.

Finally, in American Tradition Partnership v. Bullock, the Court summarily overturned a state court decision that corporations have no First Amendment rights in connection with campaign finance, citing Citizens United.

Of these, the one that is the least supportable is the Alabama case. It seems unreasonable to decide what is cruel and unusual based on a head count of what the different states are doing, and even more unreasonable to conclude that what 29 states are doing does not comport with the "evolving standards of decency." Justice Alito pointed out in his dissent, who says we are becoming more decent over time anyway?