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Beginning a discussion of the Supreme Court's term

Another term of the U.S. Supreme Court has come and gone. This year, the one case that is THE ONE, destined for the history books, not just the law books, is clearly ... well, there are at least two, and they were both decided very near the end of the term. The court addressed the latest challenge to a pillar of Obamacare, and it offered constitutional protection to the institution of marriage between homosexuals. 

I'll discuss each of those opinions in the second part of this three-part review. Today, I'll say a few words about each of three second-tier decisions, so to speak.  In increasing order of importance as I quite subjectively determine that, I've decided to include here Oneok v.Learjet (on preemption in the US energy markets); Brumfield v. Cain (on the death penalty and the mentally handicapped); Zivotofsky v. Kerry (separation of powers and recognition of the boundaries of foreign countries). They each raise questions foundational enough to make this an appropriate posting for the Fourth of July.

In the third and final part of this review, which I'll hold until next week, I'll address important orders the SCOTUS issued without opinion this term.


The bottom line is that federal preemption in the energy markets turns out to be less sweeping than some have thought: which is to say, the states have more pull.

The specific context is state antitrust law. A group of private businesses that buy nat gas directly out of the pipeline filed a lawsuit that alleged that the companies owning the pipelines had engaged in illegal price manipulation under Oklahoma's law. Those companies had the matter removed to the federal district court, and there they had it dismissed on the theory that federal statutes and regulations occupied the whole field

I for one am left wondering: how is the petitioner's name to be pronounced? "One oak" as in a single large tree standing alone? Or "on - ee -- oc"? something else? At any rate, the company used to be known by the less enigmatic name "Oklahoma Natural Gas Co."

The creation of a single commercial zone that stretched from Canada to the Gulf of Mexico was itself one of the key motives behind the creation of the Constitution, and the Supreme Court put itself in the business, early on, of blocking state efforts to impede movement across state lines, keeping this common market, truly common. Justice Marshall's decision about steamships crossing the Hudson was an early example.

I haven't studied Oneok as closely as I should, but my bias in such cases in with the dissenters. Scalia wrote for himself and Roberts, and issued a Marshallian warning: "Before today, interstate pipelines knew that their practices relating to price indices had to comply with one set of regulations promulgated by the Commission. From now on, however, pipelines will have to ensure that their behavior conforms to the discordant regulations of 50 States—or more accurately, to the discordant verdicts of untold state antitrust juries."


The court has this term re-affirmed its Atkins decision, 13 years ago, in which it held that the execution of an intellectually disabled person is cruel and unusual punishment and thus a violation of the 8th amendment.

Last year, in Hall v. Florida, the court gave Atkins some teeth, creating some bright lines tests as to intellectual disability.

This year, in Brumfield, SCOTUS through Sotomayor crosses some procedural Tees and dots some Eyes. She finds that a death-row convict was entitled to raise the Atkins issues before a federal court through a habeas petition.

I'll only say that I approve, and that the dissenters seem to wallow in their pique. It is as if they decided that, once this case wasn't going to be useful as a means of overturning Atkins, because they didn't have the votes, they weren't interested in even trying to make any specific arguments about possible distinctions between this case and those two precedents.

And yes, I know that there was another death-penalty-related SCOTUS decision this term, one involving the chemicals used and available for lethal injection. Frankly, I think Brumfield does more to carry the discussion forward, so this is the one that made my short list. If capital punishment is ever to be brought to an end through an ever-smaller-circle strategy that will manifest itself in precedents, then those precedents will involve an ever-smaller circle of who may be killed, rather than an ever-smaller circle of what means are to be used.


The full decision on Zivotofsky.

The bottom line here is that a 2002 act of Congress that mandated recognition of the City of Jerusalem as part of Israel for the purpose of the identification of a U.S. citizen's birthplace, has been struck down as unconstitutional.

Marty Lederman, who maintains a fascinating blog called "Just Security," makes the case that there are three critical points here on which eight Justices now agree, with only Thomas standing alone in opposition.  Those points?

1) That the President does have an implied power of recognition, extending to the territorial boundaries of a sovereign. [Thomas, OTOH, sees recognition as one of the express powers, that of the "vesting clause."]

2) On the other side of the scales in this case, eight justices now agree that Congress possesses substantial constitutional powers to control foreign affairs, even in connection with recognition. As Justice Kennedy wrote, recognition by a president would be a mere formality if Congress refused to confirm an ambassador, conclude trade agreements, confirm treaties, etc., matters that "require action by the Senate or the whole Congress."

3) More broadly than the recognition context, "The Executive is not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue."

This point about the consensus for all-except-Thomas naturally leads Lederman to a discussion of the idiosyncratic character of Thomas' decision. Thomas is saying that given the broad sweep of the vesting clause, Congress has a constitutional obligation to fall in line behind the President on such matters.  He quotes two scholars, Prakesh & Ramsey, saying that since Congress' "general power to legislate in support of the President's foreign policy goals" is "derivative of the President's power, it must be exercised in coordination with, and not in opposition to, the President."

I'll simply adopt Lederman's conclusion to his discussion of Thomas: the "most significant thing" about his views "is that the other eight Justices so unequivocally repudiated them."


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