How Would John Roberts Have Ruled in Eldred?
While reading Jeffrey Toobin’s latest dispatch on Chief Justice John Roberts, I was struck by the exchange in the opening paragraphs over the “preclearance” provision of the Voting Rights Act. As Toobin explains it, preclearance refers to
Specifically, the bill, signed by President George W. Bush in 2006, kept in place Section 5 of the law, which says that certain jurisdictions, largely in the Old South, have to obtain the approval of the Justice Department before making any changes to their electoral rules, from the location of polling places to the boundaries of congressional districts. A small utility district in Texas challenged that part of the law, making the same argument that members of Congress had just discounted—that this process, known as preclearance, amounted to a form of discrimination against the citizens of the New South.
Now for the exchange.
Roberts was relentless in challenging Katyal: “So your answer is that Congress can impose this disparate treatment forever because of the history in the South?”
“Absolutely not,” Katyal said.
“When can they—when do they have to stop?”
“Congress here said that twenty-five years was the appropriate reauthorization period.”
“Well, they said five years originally, and then another twenty years,” Roberts said, referring to previous reauthorizations of the act. “I mean, at some point it begins to look like the idea is that this is going to go on forever.”
This, of course, was precisely Lawrence Lessig’s argument in Eldred vs. Ashcroft, the tactical flaws of which Lessig described in Legal Affairs in 2004.
I am a constitutional scholar whose first passion is constitutional interpretation. And though constitutional law courses never focus upon the progress clause of the Constitution, it had always struck me as different in an important way. Every other clause granting power to Congress simply says Congress has the power to do something—for example, to regulate “commerce among the several states” or “declare War.” But in the progress clause, the “something” is something quite specific—to “promote . . . Progress“—through means that are also specific—by “securing” “exclusive Rights” (i.e., copyrights) “for limited Times.”
In my view, our constitutional system placed such a limit on copyright as a way to ensure that copyright holders do not too heavily influence the development and distribution of our culture. Yet, as Eldred discovered, copyrights have not expired, and will not expire, so long as Congress is free to be bought to extend them again.
Is there any reason why Roberts would not take Lessig’s side — the right side, in my view — in Eldred? Toobin suggests an answer.
In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.
i.e., maybe not. Which is a shame. I noticed that Toobin never addressed the federal preemption controversy, which has caused considerable consternation.
By preemption, I’m referring to the question of whether federal regulations preempt state regulations. Michael Greve, one of the most impressive conservative legal scholars, has written extensively on this issue — this is one of the domains where the Roberts Court has taken serious fire from conservatives and centrists. Greve does not cite Roberts as the principal villain, and he has been more restrained on the issue than Clarence Thomas. But I’ve heard sharp criticisms of Roberts on the issue that reinforce the general impression that he is more narrowly ideological than he lets on.
P.S. A brief note: this post is speculating re: what Roberts might have made of Lessig’s argument. Speculating. Hence the speculative title. And Roberts did, as Greve notes, dissent on preemption. That is, Roberts came down, rightly, on the “pro-business” side. In March, Robert Barnes wrote,
Justice Ruth Bader Ginsburg was the lone justice who voted in favor of allowing the injured to sue in both cases. Roberts and Justices Antonin Scalia and Samuel A. Alito Jr. voted for the manufacturers in both cases, and Vladeck parts ways with Englert in saying he thinks those three justices make up a nucleus on the court “particularly sympathetic to the needs of regulated interests.”
If true, I tend to think that this would be a good thing. But Englert, in contrast, says:
To Roy T. Englert Jr., who frequently represents business clients before the court, that is an indication that the court “calls them as they see ‘em.”
And that’s the question — how seriously does Roberts take his federalism? This is what we don’t know, and this is what has made some in the business world nervous about Roberts.
“In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.”
Love of authority is a prominent feature of a certain kind of conservative psychology. The past itself can be viewed as authority. Nothing is more authoritative than “the way do things around here.” Which can explain conservative’s love of tradition.
Or, you can look at the whole thing through the lens of class. The ruling class protects the status quo and thus it’s privileges. Human nature definitly tends to compell one to favor the familier over the other.
— cw · May 18, 03:02 PM · #
I meant to say: “ the way WE do things around here.”
— cw · May 18, 03:04 PM · #
cw,
That’s a rather simplistic analysis. It may have some small amount of validity, but it is probably less valid than the also spurious argument that Stephen Reinhardt views any criminal who blames his crimes on society or some large corporation as unworthy of punishment.
— Bobar · May 18, 03:47 PM · #
Definitely simplistic. But sometimes behavior that is complex in origin is simplistic in effect and so maybe the simplistic explanation is the most useful.
I was also just throwing that out there. Why some people adopt certain political ideologies is something I am interested in. Psychology, class, experience, reason, upbringing? Whatever the reason ideology has a profound effect on the world and I would like to understand it’s origins better.
— cw · May 18, 04:11 PM · #
Toobin is being misleading here. He doesn’t mention that Roberts sided with the individual in the landmark Second Amendment case vs. Washington D.C.
Unless Toobin doesn’t think that was a major case?
— Alex · May 18, 05:16 PM · #
Good point, Alex. But it does reinforce Toobin’s argument re: Roberts and the “contemporary Republican party.”
— Reihan · May 18, 05:45 PM · #
1) “Is there any reason why Roberts would not take Lessig’s side — the right side, in my view — in Eldred?” You realize, of course, that Roberts wasn’t on the Court in Eldred, right? I ask, because it’s not clear from your post if you’re speculating about how Roberts would have come down in Eldred or if you’re criticizing him for not agreeing with you in Eldred.
2) What does Toobin mean by “major case”? I don’t think I’d put too much weight on Toobin’s characterization until he defines his terms. Pretty strange that Heller doesn’t count as major. My suspicion, based on reading The Nine: only abortion and terrorism cases matter to Toobin, and so only abortion and terrorism cases count as “major” to him. That’s a pretty small sample of all the cases that the Supreme Court hears.
3) Re: preemption. You write, “Greve does not cite Roberts as the principal villain,” which is true, because Roberts JOINED THE DISSENT in Wyeth. If you agree with Greve on preemption, I don’t how you can use preemption as a point against Roberts. As for Thomas, using Wyeth as evidence of his lack of restraint is laughable. If anything, it proves his (principled) consistency. He reached the “liberal” result (i.e., no preemption) even though he is the “most conservative” justice. Maybe his principle is wrong, but he isn’t “unrestrained” in any meaningful sense.
— David · May 19, 12:55 PM · #
David,
If you are going to comment here you are going to have to at least mimic ignorance of the actual subject at hand. Otherwise it’s not fair.
— cw · May 19, 01:02 PM · #
Hi David:
(a) Yes, I’m aware that Roberts wasn’t on the Court. But thanks for the reminder. The idea was, “What principle would have guided Roberts had he been faced with the same decision.” Hence the “maybe not” — I think the answer is unclear.
(b) Toobin can answer your question better than I can. And I think Toobin would argue that Heller fits his framework in that it reflects the views of the contemporary Republican party and, by his understanding, doesn’t challenge existing power relations because Toobin doesn’t see “benevolent” concentrations of power in the hands of the state as a bad thing. I don’t think Toobin has a very consistent or for that matter sophisticated view, but that seems to be (roughly) his view.
© Sigh. Yes, I’m aware of this, but it was by no means obvious that Roberts would come down on the “right side” of the issue. And also: the preemption issue is a broad issue that won’t necessarily be settled with one case. The objections I’m referring to come from members of the appellate bar. Again, they were by no means certain of where Roberts would come down. And that suggests that future cases could turn out differently. On the subject of restraint, your objection is to Greve’s characterization on the substance, which is perfectly legitimate.
And on reflection, I actually think I’ve been too fair to you. Did you read the title of this post? “How Would John Roberts Have Ruled …”? What do you think that means?
cw:
Boy, I’m not sure how to take that. My sense is that David was doing the mimicking here.
— Reihan · May 19, 01:30 PM · #
See, I’m so ignorant about the dubject I couldn’t even tell.
— cw · May 19, 02:21 PM · #
Dang it! I mean: “SUBJECT.” Can’t you run these things through some kind of automated spell-check for me. What’s the point of all this computing power if not to make our lives easier?
— cw · May 19, 02:22 PM · #
Mea culpa. I failed to read the title post. My eyes skipped over it and I wrote my comment in a hurry.
I’m still not sure what your point is on preemption is.
— David · May 19, 06:21 PM · #
How seriously can you expect anyone to take the rest of Toobin’s article when he can still describe originalists, expressly including Scalia, as interpreting the Constitution “in line with the intentions and beliefs of its framers?” It’s been 25 years since “original public meaning” originalism eclipsed “original intent” originalism as a theory of constitutional interpretation, with Scalia one of the most significant champions of the change. Toobin is apparently blithely unaware of the most basic facts about the debates over constitutional interpretation, but we should give credence to his unsupported characterization of what Roberts does in “every major case?”
— Alex - different one · May 19, 06:37 PM · #
LONG POST ALERT (all your questions answered, and more!)
Reihan, let’s start with this: Greve misconstrues Geier, and this misreading infects the rest of his analysis. He writes:
In Geier, the Act actually did contain an express preemption clause, it just didn’t apply. Instead, the issue was the Savings Clause in the statute and its effect:
The Court decided no, the savings clause did not foreclose the operation of ordinary pre-emption principles. The question becomes: “does this lawsuit actually conflict with FMVSS 208, hence with the Act itself?” The Court held yes, the lawsuit conflicted with the regulation by frustrating the purpose of the FMVSS 208 — a purpose which sought to balance mere safety with other, commercial concerns (hence the idea of optimum).
But that’s not what Greve took away from the opinion. He writes:
As I stated above, in Geier the Court found that the federal regulators did not choose the phase-in option just to make consumer’s safe. That was the petitioner’s argument: that the airbag standard contemplated consumer safety only, and therefore it could be construed as the minimum safety standard for manufacturers. Instead, the Court agreed with the respondents: the regulators sought to find the optimum balance among a diversity of concerns — i.e., making consumers safer in the long-term was the goal, but in reaching it the act had to make some trade-offs.
In doing this, the FMVSS 208 “deliberately sought a gradual phase-in of passive restraints”: the gradual phase-in was chosen on purpose, as a key ingredient in getting to the long-term consumer safety goal of the act:
As the Court stated, “In effect, petitioners’ tort action depends upon its claim that manufacturers had a duty to install an airbag when they manufactured the 1987 Honda Accord.” If the lawsuit was allowed, it would directly conflict with the “gradual phase-in” program contemplated in the Act. It would thus frustrate the Act’s overall safety objectives by destroying one of the Act’s key ingredients.
Greve writes that “after Wyeth, Geier is a dead letter.” But that’s preposterous. Both cases use the exact same analysis, and appeal to the exact same conflict-preemption standard: purpose. (As the Court in Wyeth states, “the purpose of Congress is the ultimate touchstone in every pre-emption case.” (citing Medtronic, Inc.))
Again, a safety clause was present, and again the question was its effect:
Moreover, a manufacturer need not acquire the FDA’s approval to strengthen the warning label:
The Court concluded that Wyeth could have strengthened the warning label without violating a federal statute. The sole question remaining was 1) what is the purpose of drug-labeling regulation by the FDA, and 2) would allowing the suit frustrate this purpose.
Wyeth argued that the purpose was “to entrust an expert agency to make drug labeling decisions that strike a balance between competing objectives.” In other words, Wyeth contended a purpose that would automatically put its case into the class of cases controlled by Geier; it did this by writing into its contended purpose “a balance of competing objectives” — which was the ultimate holding in Geier. That’s good lawyering, but is it an accurate statement of Congress’s purpose in this case?
The Court decided no, that wasn’t Congress’s purpose.
Wyeth argued that the purpose was to establish “a floor and a ceiling.” The Court held that Congress’s objective was, like Geier, safety, but the Court also held that, unlike Geier, that Congress sought this objective by establishing a minimum warning requirement rather than an optimum warning requirement.
Rather than state tort law being an obstacle to drug safety, “the FDA traditionally regarded state law as a complementary form of drug regulation.” Rather than frustrating the purpose of consumer safety, it was clear that added state requirements actually further this purpose — a position the FDA had historically agreed with.
Which brings us back to Greve. He writes:
This is just bizarre. Wyeth wasn’t about “prohibited conduct”, it was about mandatory conduct — and whether a state, whose tort law demanded a higher standard of disclosure on drug labels, furthered or conflicted with the purpose of a federal regulation. Rather than Wyeth‘s majority calling the “implied preemption principle into doubt,” as Greve states, the opinion strengthens the principle by using it lucidly and properly.
As for Eldred, the arguments that Congress didn’t have the power to extend the terms of existing copyrights were not compelling. The first amendment argument was DOA, and everybody knew it. The “progress clause” argument was never going to win the day, since it was preambular.
The only issue which had some footing was the “limited time” argument, but Lessig’s decision to appeal to Lopez was an error. As Lessig writes in his article, the government’s theory in Lopez was “if Congress says an activity affects interstate commerce, then that activity affects interstate commerce.”
The Lopez court refused to read Congress’s powers so broadly. This was the reasoning: The Constitution grants to Congress the power to regulate commerce among the several states, i.e., interstate commerce. Thus, there must exist some commerce that is not interstate in nature, and is therefore outside of Congress’s power to regulate. However, if we take the government’s argument to its logical conclusion, then we have implicitly granted to Congress the power to define some commerce as ‘interstate’ which is in fact not interstate in nature. Thus, the government’s position is equivalent to saying that Congress has the power to make substantive changes to the Constitution. Since this is unacceptable, there must be a way for the Court to determine which kinds of commerce are properly interstate, and which kinds aren’t. The method the Lopez Court came up with was the “channels, instrumentalities, and substantial relation or impact” tests.
In Eldred, the question was not whether Congress could enact an “unlimited” extension to copyright protection and call it “limited.” Instead, the question was whether an extension, which was factually limited in duration, was the “functional equivalent” of ‘unlimited duration’ if we take into account that Congress retains the power to impose another limited extension.
That is clearly different than the principle in Lopez.
I am on Lessig’s side in principle. I think Copyright duration should be substantially shorter. However, since the issue was whether Congress had the power to do exactly what the Constitution empowered it to do — i.e., decide in the political arena what copyright policies further ‘progress’, and enact a protection scheme of limited duration to effect this purpose — then I can’t agree with Lessig that the court decided incorrectly.
And to answer your “speculation”, I wrote a paper in law school on Robert’s judicial philosophy, and I think he would have agreed with the majority on this one. Not because he’s pro-power or anti-littlepeople, but because he’s a minimalist who would have interpreted the Constitution as giving Congress the power to determine which copyright policy maintained the best best path to ‘progress’.
Maybe the Constitution needs to be amended, but that’s the way it is.
— Sargent · May 19, 06:53 PM · #
Sargent:
Thanks for an excellent comment — easily one of my all-time favorites. Re: Eldred: that was my understanding of the issue as well. But here’s the thing: I actually think the SC should play a far more limited “anti-entrenchment” role as a general matter. But given that it plays a far larger role, why not enact one of my preferences?
Not a sound way to think about these issues, perhaps. That’s why I should never be named to the federal bench!
— Reihan · May 19, 07:32 PM · #
Reihan, it is refreshing to here someone on the right describe copyright as something other than a “freehold” meant to benefit it’s holder and his heirs, but as law of “utility” meant to benefit society. Just read Jefferson and it’s quite obvious where the emphasis lies. I would enjoy hearing more from you on IP.
— shmoe · May 21, 01:10 AM · #