April 30, 2007

The new Supreme Court cases, especially the new negative Commerce Clause case.

SCOTUSblog gives us a first glimpse:
The Supreme Court, in a major victory for Microsoft Corp.... Microsoft Corp. v. AT&T...

In a second ruling on patent law, the Court decided unanimously that the Federal Circuit Court had been wrong in taking a narrow view of when an invention is "obvious" and thus cannot be patented.... KSR International v. Teleflex....

... [P]olice do not act unconstitutionally when they try to stop a suspect fleeing at high speed by ramming the suspect's car from the rear, forcing it to crash..... Scott v. Harris....

[I]f a taxpayer could have sued to challenge an erroneous federal tax levy, but fails to do so on time, may not later sue for a refund... EC Terms of Trust v. U.S....

... [L]ocal government does not violate the Constitution when it [requires] all solid waste generated in the community to be processed at a publicly owned facility, so long as the ordinance treats private businesses the same whether they are local or out-of-state.... United Haulers Association v. Oneida-Herkimer Solid Waste Management...
The last one, a negative (dormant) Commerce Clause case, is especially interesting to me. Here it is, with four separate opinions, written by, oddly enough, Roberts, Scalia, Thomas, and Alito. Roberts announces the decision:
We hold that the Counties’ flow control ordinances, which treat in-state private business interests exactly the same as out-of-state ones, do not “discriminate against interstate commerce” for purposes of the dormant Commerce Clause.
Because he finds no discrimination, he goes on to the balancing test (the "Pike test"):
Under the Pike test, we will uphold a nondiscriminatory statute like this one “unless the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.”...

We find it unnecessary to decide whether the ordinances impose any incidental burden on interstate commerce because any arguable burden does not exceed the public benefits of the ordinances.

The ordinances give the Counties a convenient and effective way to finance their integrated package of waste-disposal services....

At the same time, the ordinances are more than financing tools. They increase recycling in at least two ways, conferring significant health and environmental benefits upon the citizens of the Counties....

The Counties’ ordinances are exercises of the police power in an effort to address waste disposal, a typical and traditional concern of local government.
Souter, Ginsburg, and Breyer join the opinion in full. Scalia joins up to the point where Roberts applies the balancing test:
I have been willing to enforce on stare decisis grounds a “negative” self-executing Commerce Clause in two situations: “(1) against a state law that facially discriminates against interstate commerce, and (2) against a state law that is indistinguishable from a type of law previously held unconstitutional by the Court.”... As today’s opinion makes clear, the flow-control law at issue in this case meets neither condition. It benefits a public entity performing a traditional local-government function and treats all private entities precisely the same way....

I am unable to join Part II–D of the principal opinion, in which the plurality performs so-called “Pike balancing.” Generally speaking, the balancing of various values is left to Congress—which is precisely what the Commerce Clause (the real Commerce Clause) envisions.
Thomas concurs. He would get rid of negative Commerce Clause enforcement altogether:
The negative Commerce Clause has no basis in the Constitution and has proved unworkable in practice.... As the debate between the majority and dissent shows, application of the negative Commerce Clause turns solely on policy considerations, not on the Constitution. Because this Court has no policy role in regulating interstate commerce, I would discard the Court’s negative Commerce Clause jurisprudence.
Alito dissents, joined by Stephens and Kennedy. He perceives discrimination:
[T]hese laws discriminate against interstate commerce (generally favoring local interests over nonlocal interests), but are defended on the ground that they serve legitimate goals unrelated to protectionism (e.g., health, safety, and protection of the environment). And while I do not question that the laws at issue in this case serve legitimate goals, the laws offend the dormant Commerce Clause because those goals could be attained effectively through nondiscriminatory means....
The key, based on past precedent, is that the processing plant was not privately owned, as Roberts emphasizes:
“Flow control” ordinances require trash haulers to deliver solid waste to a particular waste processing facility. In C & A Carbone, Inc. v. Clarkstown, this Court struck down under the Commerce Clause a flow control ordinance that forced haulers to deliver waste to a particular private processing facility. In this case, we face flow control ordinances quite similar to the one invalidated in Carbone. The only salient difference is that the laws at issue here require haulers to bring waste to facilities owned and operated by a state-created public benefit corporation. We find this difference constitutionally significant. Disposing of trash has been a traditional government activity for years, and laws that favor the government in such areas—but treat every private business, whether in-state or out-of-state, exactly the same—do not discriminate against interstate commerce for purposes of the Commerce Clause.
I would have been very surprised if the case had come out the other way. It's true Roberts doesn't have a majority, but that is only because Scalia and Thomas are even less willing to strike things down on a negative Commerce Clause theory. It's interesting to see Alito break away from Roberts, Scalia, and Thomas, especially since he perked up at the invocation of "traditional government activity":
[T]his Court has previously recognized that any standard “that turns on a judicial appraisal of whether a particular governmental function is ‘integral’ or ‘traditional’ ” is “ ‘unsound in principle and unworkable in practice.’ ” Garcia v. San Antonio Metropolitan Transit Authority (1985) . Indeed, the Court has twice experimented with such standards—first in the context of intergovernmental tax immunity, see South Carolina v. United States (1905) , and more recently in the context of state regulatory immunity under the Commerce Clause, see National League of Cities v. Usery (1976) —only to abandon them later as analytically unsound. See Garcia, supra, at 547 (overruling National League of Cities); New York v. United States (1946) (overruling South Carolina v. United States). Thus, to the extent today’s holding rests on a distinction between “traditional” governmental functions and their nontraditional counterparts, it cannot be reconciled with prior precedent.
This unnecessary invocation of Garcia is not what you'd expect from a Justice dedicated to federalism.

ADDED: The case about the high-speed chase includes the video.

MORE: Justice Scalia discusses the video in Scott v. Harris:
[R]eading the lower court’s opinion, one gets the impression that respondent, rather than fleeing from police, was attempting to pass his driving test:
“[T]aking the facts from the non-movant’s viewpoint, [respondent] remained in control of his vehicle, slowed for turns and intersections, and typically used his indicators for turns. He did not run any motorists off the road. Nor was he a threat to pedestrians in the shopping center parking lot, which was free from pedestrian and vehicular traffic as the center was closed. Significantly, by the time the parties were back on the highway and Scott rammed [respondent], the motorway had been cleared of motorists and pedestrians allegedly because of police blockades of the nearby intersections.” Id., at 815–816 (citations omitted).
The videotape tells quite a different story. There we see respondent’s vehicle racing down narrow, two-lane roads in the dead of night at speeds that are shockingly fast. We see it swerve around more than a dozen other cars, cross the double-yellow line, and force cars traveling in both directions to their respective shoulders to avoid being hit. We see it run multiple red lights and travel for considerable periods of time in the occasional center left-turn-only lane, chased by numerous police cars forced to engage in the same hazardous maneuvers just to keep up. Far from being the cautious and controlled driver the lower court depicts, what we see on the video more closely resembles a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury....

Respondent’s version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.
"Visible fiction"? Is that a typo for "risible fiction"?

Anyway, I watched the video, and I understand why you'd want to reject the plaintiff's characterization of the facts. But this is a case about when to grant summary judgment, avoiding trial. Justice Stevens dissented:
[T]he Court has usurped the jury’s factfinding function and, in doing so, implicitly labeled the four other judges to review the case unreasonable.....

If two groups of judges can disagree so vehemently about the nature of the pursuit and the circumstances surrounding that pursuit, it seems eminently likely that a reasonable juror could disagree with this Court’s characterization of events....

The Court today sets forth a per se rule that presumes its own version of the facts: “A police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.” Not only does that rule fly in the face of the flexible and case-by-case “reasonableness” approach applied in Garner and Graham v. Connor, 490 U. S. 386 (1989) , but it is also arguably inapplicable to the case at hand, given that it is not clear that this chase threatened the life of any “innocent bystande[r].” In my view, the risks inherent in justifying unwarranted police conduct on the basis of unfounded assumptions are unacceptable, particularly when less drastic measures—in this case, the use of stop sticks9 or a simple warning issued from a loudspeaker—could have avoided such a tragic result. In my judgment, jurors in Georgia should be allowed to evaluate the reasonableness of the decision to ram respondent’s speeding vehicle in a manner that created an obvious risk of death and has in fact made him a quadriplegic at the age of 19.
But even Justices Ginsburg and Breyer agreed with the outcome.

15 comments:

Chris said...

Stephens?

Simon said...

"This unnecessary invocation of Garcia is not what you'd expect from a Justice dedicated to federalism."

That unnecessary invocation of Garcia is giving me palpitations.

Todd and in Charge said...

Incredible. Justice Scalia is rejecting the facts as presented on appeal and is reweighing the trial court evidence, based on his own reaction to a video?

Yep, this guy is a strict constructionist. No activism here.

joe said...

Visible means visible. What's risible is Stephens complaining that a judge has usurped the jury's function.

Richard Dolan said...

"Visible fiction"? Is that a typo for "risible fiction"?

I doubt it, but it's an odd locution nonetheless. I suppose it's his way of rephrasing, and then answering, the old taunt-as-question, "who am I supposed to believe, you or my own eyes?"

I thought the construction of Rule 56, with Scalia's emphasis on the genuineness and material of the supposed issue of fact, was the most interesting part of this decision. District courts are often reluctant to grant summary judgment because, when they do, appellate courts have gotten pretty good at spotting disputed factual issues sufficient to reverse.

I suspect it will be a rare case in which a defendant has a video to contradict a plaintiff's description of an accident. But this decision stands for the broader proposition that, where as here the record as a whole renders the plaintiff's version of the events so unpersuasive that a reasonable jury could not rule in his favor, summary judgment may be granted against him. That's quite close to a credibility determination, and there are lots of cases saying that courts don't get into credibility determinations on summary judgment. Stevens' dissent engages in the sort of factual analysis -- conjuring up possible but unlikely scenarios to show that what seems to be open-and-shut isn't quite -- that has often led other appellate courts to reverse a grant of summary judgment, on the grounds that there were material factual issues in dispute. I doubt that this decision will result in any different treatment of summary judgment motions generally, but it's not hard to hear a tone of judicial frustration with really dubious or artfully pleaded claims, and a desire to allow the lower courts to get rid of them more quickly, in Scalia's decision.

Revenant said...

it is not clear that this chase threatened the life of any "innocent bystande[r]."

It is kind of disturbing that a person dippy enough to write the above sentence, after seeing that videotape, is actually in a position to make decisions that affect my life.

Simon said...

Todd and in Charge said...
"Incredible. Justice Scalia is rejecting the facts as presented on appeal and is reweighing the trial court evidence, based on his own reaction to a video? Yep, this guy is a strict constructionist. No activism here."

(1) "Reweighing"? "Evidence"? As I understood the procedural posture of the case, the case has never yet been to trial. It's never been before a jury. Is this not an interlocutory appeal from defendant's motion for summary judgment? It's not immediately clear from the Supreme Court's opinion or the opinion below whether they'd even made it into discovery yet.

(2) Scalia isn't a strict constructionist, and says that nobody ought to be. See Scalia, A Matter of Interpretation, 23 (1997).

(3) Even if he were a strict constructionist, exactly what text are you saying he is construing too broadly?

The Emperor said...

In the negative commerce clause case, the majority opinion is about like saying that a statute which restricts access only to white men does not discriminate because white women and black women are treated equally. Clearly, the the ordinance discriminates. The majority just wants to carve out an exception for government owned enterprises. I'm not really sure why. This just gives local governments an incentive to own more companies so they can discriminate in favor of them.

Todd and in Charge said...

Simon, thanks. True no jury, but job of court is not to make credibility determinations in the face of conflicting evidence, but to determine if there are genuine issues of fact and let the jury decide.

If it is as slam dunk as Scalia says, a decent prosecutor should have gotten a conviction.

Also, you're right on strict construction. I was thinking more judicial activism.

Revenant said...

True no jury, but job of court is not to make credibility determinations in the face of conflicting evidence, but to determine if there are genuine issues of fact and let the jury decide.

What conflicting evidence? The conflict was between a *description* of the videotape and the videotape itself. That's not conflicting evidence -- that's a conflict between the evidence and the plaintiff's spin on the evidence.

If it is as slam dunk as Scalia says, a decent prosecutor should have gotten a conviction.

This was a lawsuit against the policeman in question, not a criminal prosecution.

Todd and in Charge said...

Got it -- I pulled the opinion. But has anyone pulled from PACER the summary judgment papers from the district court? Undoubtedly there was more there than just the simple description vs the tape, i.e., affidavits from witnesses, police report etc.

Simon said...

Todd, well and good, but summary judgment views the facts in the light most favorable to the non-moving party, and draws all reasonable inferences in his favor, but as Rev points out (as does the court, for that matter) it's hard to talk seriously of drawing reasonable inferences and viewing facts as favorably as possible when you have a video tape of what occurred. Presumptions about descriptions of an event surely dissipate when you can see what transpired.

Todd and in Charge said...

Oh I agree, I just think the opinion doesn't do a very good job of presenting the evidence on the other side; right now you come away with the impression that it was nonexistent.

Simon said...

But the evidence on the other side is a bursting bubble when you have video footage of the event. After a fashion, it is non-existent: Depositions and testimony surely have no weight when we have a video of the event and no one disputes the accuracy of the video. No reasonable juror could believe an affadavit that contradicts what they can see with their own eyes.

I'll give you a comparison: I was in the hoosierdome today with, I don't know, say 5000 other people. If every single one of them signed an affadavit that Gen. Colin Powell pulled down his pants and mooned the crowd, would you call that "evidence" notwithstanding that I had a video recording of his entire performance which not one of the affiants disputes is an accurate recording of the events in question? I guess not, right? Because if they say something happened and I have a video of the event during which this something's supposed to have happened, and it clearly does not happen, then what "reasonable inference" can you draw from their "evidence"?

Todd and in Charge said...

I agree. But Scalia throws a lot of junk in there, like what the plaintiff was doing at the shopping center. That has nothing to do with the conditions at the time of ramming.

I think what is in dispute is whether or not a judge, or jury, should decide if the actions of the officer were reckless and/or protected by immunity.

If you read Stevens' dissent, the video confirms several undisputed aspects of his claim of recklessness that the plaintiff contended should have went to a jury, such as the fact that there were no pedestrians on the road at the time of the ramming, and that the road was closed to vehicles at the time.

Having read the opinion several times, it seems to me that Scalia -- while saying that he is "loathe" to lay down a prospective rule -- then does exactly that. A poorly reasoned opinion, he seems to be in a very activist mode here.