Eugene Volokh's Blog, page 22

[Ilya Somin] The Supreme Court Will Hear Another Home Equity Theft Takings Case

[This one addresses the issue of whether the owner of a home foreclosed for nonpayment of debt is entitled to "fair market value" compensation, or only whatever the government gets from auctioning off the property, minus the debt owed.]

 

Illustration: Lex Villena; Oblachko

In Tyler v. Hennepin County (2023), a unanimous Supreme Court ruled that "home equity theft" is unconstitutional. If the government forecloses on a property for nonpayment of taxes or other debts, it can only keep as much of the value of the land as is necessary to repay the debt in question. The rest belongs to the property owner. Otherwise, the Court ruled, there would be a violation of the Takings Clause of the Fifth Amendment, which bars taking of private property without payment of "just compensation" (see my analysis of the ruling here).

After Tyler, I did not think the home equity theft issue would return to the Supreme Court anytime soon. But, yesterday, the Court decided to hear Pung v. Isabella County. In this case, Isabella County, Michigan seized the late Timothy Pung's house because he supposedly failed to pay some $2200 in taxes and fees (his estate claims he didn't actually owe this money). They then sold the property at auction for about $76,000; the County kept the $2200 it thought it was owed and transferred the remaining funds (about $73,800) to Pung's estate.

But the usual standard for takings compensation, according to longstanding Supreme Court precedent, is "fair market value" - the price a property would fetch if sold on the open market. And Pung's estate argues the fair market value here is actually $194,400 (the value at which the county itself assessed that value for property tax purposes).

If a seizure of home equity after foreclosure is a taking - as Tyler v. Hennepin County rightly held - then I think the estate is obviously right. The property taken is the residual value of the home (after delinquent taxes and other debts are repaid). And that may be more than the government got from the highest bidder at the auction.

To be sure, the highest bid at the auction is relevant evidence of fair market value. But it is not always the only evidence that must be considered. The government could potentially do a poor job of marketing the property, and end up accepting a below-market value price. That's especially likely if, as is usually the case, they have no incentive to maximize value, so long as they secure enough to repay the debt that supposedly justified the foreclosure in the first place.

Here, it seems clear the auction price was indeed subpar. We know that because the winning bidder quickly resold the property for $195,000 (very close to the Pung estate's $194,400 estimate of the fair market value). That suggests the County was either incompetent at marketing the property or just didn't care to make a serious effort.

The lower court ruling by the US Court of Appeals for the Sixth Circuit held there is no taking here. But it is largely based on previous circuit precedent, which offers little in the way of analysis on this point. Tyler makes clear that a property owner subject to tax foreclosure "must render unto Caesar what is Caesar's, but no more." Here, Caesar pretty obviously did take a lot more, even if he wasn't able to appropriate its full value for himself.

In addition to considering the Takings Clause issue, the Supreme Court will also weigh the question of whether this kind of home equity theft violates the Excessive Fines Clause of the Eighth Amendment. The Court need not decide that issue if they rule in favor of Pung on the Takings Clause question. In Tyler, the Supreme Court similarly chose to rely on the Takings Clause, and did not to decide the Excessive Fines Clause issue. In a concurring opinion, Justice Neil Gorsuch (joined by Justice Ketanji Brown Jackson), argued that home equity theft does indeed violate the Excessive Fines Clause, as well as the Takings Clause.

I hope - and tentatively expect - that the Supreme Court will reverse the Sixth Circuit and rule that the Pung estate is entitled to fair market value compensation. I doubt the Court would have chosen to hear this case just to affirm the lower court decision. There is no split between circuits here of a kind that might lead the justices to take a case to resolve it.

Pung is somewhat unusual, in recent years, in being a major Takings Clause case that reached the Supreme Court, but was litigated by conventional private counsel, rather than by one of the major property rights public interest firms, such as the Institute For Justice and the Pacific Legal Foundation (which litigated Tyler). Philip L. Ellison, the Michigan attorney representing the Pung estate, wrote a strong cert petition that must have persuaded the justices to take the case.

Regardless of how the case got to the Court, the property rights community will surely support the victimized owner here. I myself intend to file an amicus brief, and I suspect I will not be alone in that.

The post The Supreme Court Will Hear Another Home Equity Theft Takings Case appeared first on Reason.com.

[Eugene Volokh] Odd Cross-Jurisdictional Unsealing Twist Related to Jordan Neely Case

From Southerland v. Bragg, decided Friday by Magistrate Judge Gabriel Gorenstein (S.D.N.Y.):

The complaint in this case seeks to obtain judicial records (and possibly other records) relating to Jordan Neely, who as a child was a witness at the New Jersey trial that resulted in plaintiff's conviction for murder. Over a decade later, Neely was the victim in a prosecution brought in New York against Daniel Penny, which resulted in an acquittal. Under a New York State statute, Criminal Procedure Law § 160.50, that acquittal in turn resulted in the sealing of the records in the criminal case against Penny (and thus of any documents therein that relate to Neely). Plaintiff's complaint seeks to have this Court unseal the New York state court records in the Penny case to obtain any records relating to Neely….

Plaintiff has filed "motion to unseal" the records in the Penny case, to which defendants have responded. This Court of course has power to seal and unseal its own records in accordance with applicable legal standards. But in this motion to unseal, plaintiff is not asking the Court to unseal a document that was filed on the docket in the case before it.

Instead, the motion asks this Court to unseal the New York state court records in the Penny case: that is, plaintiff seeks the unsealing of the very records that he seeks to obtain through the filing of the complaint. Whether the Court has power to order production of those records will be decided in due course as part of its consideration of the merits of this case. In the meantime, there is no basis for the Court to unseal those same records in response to a "motion to unseal."

Plaintiff's citation for authority to unseal, N.Y. Criminal Procedure Law § 160.50, further demonstrates the infirmity of this request given that § 160.50 addresses the power of "the court" to seal or unseal—plainly referring to the court in the criminal case, not some other court. Plaintiff's other citation[s] to authority—relating to various aspects of discovery—are completely irrelevant as the discovery rules do not authorize a court to afford a litigant the ultimate relief sought in the case. Accordingly, the motion to unseal is denied. This denial is of course without prejudice to plaintiff's right to continue litigating the merits of this case….

Defendants have [also] moved to stay discovery in this case pending the decision on their planned motion to dismiss or in the alternative for summary judgment—an application that plaintiff opposes. "[U]pon a showing of good cause a district court has considerable discretion to stay discovery pursuant to Fed. R. Civ. P. 26(c)." …

[G]iven that plaintiff has already sought to obtain the documents in the Penny case through a motion to unseal, we can assume that plaintiff would seek to obtain those documents. Plaintiff has already served interrogatories on defendants about the documents in the Penny case. Further, in his opposition, plaintiff states that he "seeks several subpoena's [sic] to assist in his search for the truth behind Jordan Neely's 'reported' mental illness issues." The breadth of discovery weighs against allowing discovery to proceed given that it encompasses obtaining the very documents at issue in this case or critical information about those documents. If it turns out that plaintiff is not entitled to the documents based on the lack of merit of his complaint, plaintiff will have obtained the relief he sought in the complaint through the subterfuge of discovery.

For these same reasons, serious prejudice would result from allowing discovery to proceed. The public interest embodied in the Criminal Procedure Law § 160.50 will have been defeated through plaintiff's use of the discovery process even if the Court finds his complaint lacks merit.

Finally, as to the strength of the motion, defendants make persuasive arguments that the complaint will have to be dismissed on a number of grounds, including the argument that the only possible constitutional claim against the defendants would be a claim of a Brady violation and that no such violation is possible since they were not the parties that prosecuted plaintiff in New Jersey. There are also significant comity issues given that plaintiff has elected not to pursue obtaining the documents from the trial court in the Penny case. In sum, [the] factors support a stay of discovery.

For Southerland's latest substantive challenge to his conviction, see State v. Southerland, decided two weeks ago by the N.J. intermediate appellate court, as well as the 2015 appeal in that case:

The State developed the following proofs at trial. The victim, C.N., lived in Bayonne with her fourteen-year-old son, J.N. Defendant and C.N. met in 2002 when they were in law school together and, in December 2005, defendant moved into C.N.'s apartment. J.N. described the relationship between C.N. and defendant as "crazy," explaining that they used to "fight every day." In January 2007, defendant moved to Texas, but he returned to the apartment in late March 2007.

On the morning of April 4, 2007, C.N. did not wake J.N. for school as she usually did. He got dressed and went to C.N.'s bedroom to say goodbye. The door was closed and, as he approached, J.N. testified that defendant stepped in front of the door, and prevented him from going inside. J.N. then left the apartment. He did not hear any sounds coming from inside C.N.'s bedroom that morning, nor had he heard anything unusual the previous night. J.N. stated he usually stayed in his room in the evening playing videogames and watching television.

When J.N. returned home from school at approximately 4:00 p.m., defendant was in the apartment, but C.N. was not there. J.N. asked defendant about C.N., and defendant told the child he had not seen the victim. J.N. noticed that a white blanket and some of his mother's personal "accessories" were missing from C.N.'s bedroom.

J.N. testified that defendant gave him some money to buy food at a take-out restaurant and then followed the child there on a bicycle. When they returned home, defendant stated he had to leave because his aunt was "sick[,] … in the hospital, tied to a machine, she's getting ready to die[.]" Defendant took "all his stuff with him" when he left. J.N. testified defendant used to borrow a Silver Kia from someone he identified as "his aunt" and, after defendant left that night, he never saw defendant or the car again.

Defendant's friend, C.V., testified that defendant borrowed her 2001 Kia on April 3, 2007 and, when he returned it in the early evening on April 5, it had two flat tires. Defendant stayed at C.V.'s home until April 9, when she drove him to a train station.

J.N. notified his school of his mother's disappearance and, two or three days later, he went to his grandmother's house in New York City to tell her C.N. was missing.

On the morning of April 7, 2007, a New York City Department of Transportation employee found the body of a woman inside a black duffel bag along the Henry Hudson Parkway in New York, about twenty-five miles from Bayonne. The employee testified he did not see the bag when he cleaned the area the previous day. New York City police officers retrieved the body and began an investigation….

Corey S. Shoock represents the New York officials.

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[Josh Blackman] Today in Supreme Court History: October 4, 1965

10/4/1965: Justice Abe Fortas takes the oath.

Justice Abe Fortas

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[Eugene Volokh] Top 11 Universities in the U.S. (1935)

From the Atlantic in 1935, by Edwin Embree (see also yesterday's Atlantic Time-Travel Thursdays (Jake Lundberg) item yesterday discussing this):

How does one go about appraising the scholarly eminence of universities? In the first place, one may take the lists of the most distinguished scientists as published in American Men of Science and in somewhat similar records for the other branches of learning and tabulate the centres of concentration of these most eminent scholars. Second, since creative scholarship finds expression ultimately in publication, it is possible through the scientific journals to appraise the scholarly output of the several university faculties. The third and probably the soundest method is to rely on appraisals of the relative eminence of the several departments of universities made by competent scholars in each field. [More details omitted. -EV] …

While I have based my ratings on authoritative findings, most of which are matters of published record, I must in the end assume personal responsibility for the judgments. With all these considerations and reservations in mind, here is my rating of American universities in the order of their scholarly eminence: —

1. Harvard
2. Chicago
3. Columbia
4. California
5. Yale
6. Michigan
7. Cornell
8. Princeton
9. Johns Hopkins
10. Wisconsin
11. Minnesota

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[Josh Blackman] "The same result that we reached in May is appropriate here."

[Once again, a district judge is reversed by the Supreme Court twice in the same case.]

I noted in my recent Civitas column that it is rare for a single judge to be reversed by the Supreme Court twice in the same case. Yet, it has happened again. The latest installment is Noem v. TPA Alliance, Part II. The Court states the issue plainly:

In March of this year, the United States District Courtfor the Northern District of California entered a preliminary order postponing the effective date of the Secretary of Homeland Security's decision to remove "temporary protected status" (TPS) from Venezuelan nationals living in the United States. See 8 U. S. C. §1254a; 5 U. S. C. §705. In May, this Court stayed that order while the Governmentappealed. The United States Court of Appeals for the Ninth Circuit ultimately affirmed the District Court's preliminary order. Last month, the District Court entered final judgment in respondents' favor, holding unlawful and settingaside the Secretary's actions effectuating her decision—namely, her vacatur of a pending extension of TPS for Venezuelan nationals, and her termination of that status itself. See 5 U. S. C. §706(2). (The District Court also concluded that the Secretary unlawfully vacated a TPS extension for Haitian nationals. The Government now seeks to stay theportions of the District Court's judgment pertaining to Venezuela, but not Haiti. See Application 7, n. 6.) The application for stay presented to JUSTICE KAGAN and by her referred to the Court is granted. Although the posture of the case has changed, the parties' legal arguments and relative harms generally have not. The same result that we reached in May is appropriate here.

Justice Jackson, in dissent, laments how the Court did not use its "opinion-writing capacity." Given that this case took less than ten days to resolve, from start to finish, I don't think the Court found the matter particularly difficult. Justices Kagan and Sotomayor did not join Jackson's dissent.

At some point, lower courts will get the memo of how the emergency docket works.

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[Ilya Somin] European Nations Again Consider Using Frozen Russian State Assets to Fund Ukraine's War Effort

[Over $300 billion in Russian state assets are frozen in the West. It's long past time they were used to help Ukraine resist Vladimir Putin's war of aggression..]

The Bank of Russia. (NA)

 

European Union nations are once again considering ways to use the $300 billion Russian state assets frozen in Western nations (mostly in Europe) to help Ukraine:

European Union leaders on Wednesday weighed a new scheme to provide longer-term financial and military support to Ukraine using hundreds of billions of dollars in frozen Russian assets held in Europe.

The plan — which Moscow has described as "theft" — is a fresh sign of the EU's determination to push ahead alone with support for Ukraine without the United States. Under President Donald Trump the U.S. no longer sends financial aid to Ukraine, and little so far in the way of weapons.

Ukraine's budget and military needs for 2026 and 2027 are estimated to total around 130 billion euros ($153 billion). The EU has already poured in 174 billion euros since the war started in February 2022.

The biggest pot of ready funds available is through frozen Russian assets. Most of it is held in Belgium – around 194 billion euros as of June – and outside the EU in Japan, with around $50 billion, and the U.S., U.K. and Canada with lesser amounts.

The plan currently under consideration would use the funds to back a loan that Ukraine would only have to repay if Russia pays an equivalent amount in war reparations. I have long advocated just simply confiscating the Russian state assets and giving them to Ukraine (e.g. here, here, and here). But the EU loan plan is almost as good, inasmuch as the practical effects are likely to be very similar. Unless Russia pays reparations (which seems unlikely), the confiscated state assets will ultimately be used to repay the loan, and Ukraine will not be held liable for it.

Last year, Congress enacted the REPO Act, which authorized the president to confiscate the approximately $6 billion in Russian state assets frozen in the US and transfer them to Ukraine. But neither Biden nor Trump has acted on it. In recent weeks, Trump has been rhetorically tougher on Russia than before, but I am not optimistic that these words will be backed by deeds. He can start to prove me wrong by using the REPO Act authority.

In a November 2023 post, I addressed a range of different objections to confiscating Russian state assets, including 1) claims that it would violate property rights protections in the US and various European constitutions, 2) sovereign immunity arguments, 3) arguments that it would be unfair to the Russian people, 4) slippery slope concerns, and 5) the danger of Russian retaliation. Every point made there remains relevant today. Stephen Rademaker, former chief counsel to the House Committee on Foreign Affairs, has a helpful recent Washington Post article further addressing the retaliation point.

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[John Ross] Short Circuit: An Inexhaustive Weekly Compendium of Rulings from the Federal Courts of Appeal

[Qualified privileges, unequal conspiracies, and a file in hand.]

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New case! Armed, masked ICE agents in Alabama have twice arrested Florida-born U.S. citizen Leo Venegas at work, each time barging onto active construction sites and violently detaining Latinos (while leaving everyone else alone) and each time continuing to detain Leo after he showed them his REAL ID. This week, we filed a class action on behalf of Leo and thousands of others similarly situated, challenging the warrantless entries, preemptive detentions, and continued detentions. Click here to learn more.

New on the Unpublished Opinions podcast: The panel ruminates over favorite features of the U.S. Constitution, proposes amendments, and discusses the dangers of viewing rights through a partisan lens.

The FBI investigated a woman, monitoring her travel, recording her private conversations, and seizing a trove of materials from her house, including family photos. Fox News aired and published a series of stories about the investigation—including the photos and other materials from the FBI. Woman: the Privacy Act prohibits the FBI from disclosing these records, and it hurt my business bigly. Identify the leaker. Journalist: The First Amendment reporter's privilege means I don't have to. D.C. Circuit: It's only a qualified privilege, which is overcome here because the info is crucial to the case, and she tried every reasonable alternative to get it. Cough up the name."Not all conspiracies are created equal." A line from a John le Carré novel? No, it's from a Third Circuit imbroglio concerning a U.S. permanent resident and father of four who dabbled in a bit of passport fraud with some collaborators. Is the crime serious enough to warrant deportation and is his evidence strong enough to demonstrate he will be subject to torture if returned to Nigeria? The court says it's too early to tell, but the immigration judge applied the wrong standards. Remanded.A Delta flight attendant saw a man comforting a 13-year-old girl on a turbulent flight and concluded that the man was sexually assaulting and trafficking the child. She reports the incident to the pilot; police meet the plane when it lands and take the man for questioning in the airport. Whoops, it's his daughter, and nothing untoward happened. He sues. Delta: Child abuse reports are generally immune from liability. Man: Only if those reports are made to the state's Department of Social Services. Fourth Circuit: The statute isn't sufficiently clear for us to opine. Virginia Supreme Court, help?West Virginia property owner fails to pay real estate taxes, leading to the local sheriff's selling a tax lien on her property. Notices are sent to her, but all are returned undeliverable. Yikes! Did a shlub in the state auditor's office violate her due-process rights by not doing more to identify her actual address? Fourth Circuit: Qualified immunity.Gov't employee dies, after which his wife and mother each lay claim to his Federal Employees' Group Life Insurance proceeds. Mother: He executed a beneficiary-designation form naming me in 2007. Wife: But he executed a subsequent one naming me in 2013. District court: The wife's form isn't in the man's personnel file, so she's out of luck. Fifth Circuit (unpublished): Okay, but there's evidence her form was in fact received by his employer, including testimony from a supervisor who personally witnessed the man deliver it to HR. To trial the case must go.In which the Fifth Circuit holds that a prisoner had no clearly established right to receive post-deprivation process after the prison withheld some of the money he earned selling handmade belts (assertedly to cover taxes and overhead), but also goes out of its way to note that it says nothing about claims for pre-deprivation process or claims under the takings clause, which nobody properly raised.Michigan student with a history of behavior issues is suspected of having a gun at school based on a report from a fellow student the day before that he had brought a gun to school and overheard comments from the student himself about owning a gun. After a search of the student's locker and backpack turns up nothing, a teacher has him lift his shirt and pull down his pants (but not underwear) to prove he isn't armed. A year later, the student sues. Sixth Circuit (over a dissent): Qualified immunity for the teacher.Depending on which medieval theologian you pal around with, "fact sheets" and sincerely held religious beliefs may seem to be in tension with each other. Apparently not for the manager of the Oak Ridge National Laboratory in Tennessee, though, which tried to dissuade a man from seeking a religious accommodation from a COVID-19 shot mandate by instructing him about how all kinds of religious leaders said the vaccine was A-OK and providing him with a "fact sheet" detailing how cell lines from aborted fetuses are used in all manner of medical marvels. District court: I'm not going to address the Title VII religious questions because there was no materially adverse employment action. Sixth Circuit: That was based on our circuit's now-overturned precedent. Remanded for the merits.Soliciting a minor for sex is gross and wrong and criminal—but it does not, the Eighth Circuit holds, affect interstate commerce just because you made your gross solicitation while sitting in a car that was manufactured out of state.Tax litigation strategies may not constitute high comedy, but for a potential exception get a load of how the IRS tried to justify taxing 3M on $23.7 mil in royalty income from its Brazilian subsidiary instead of the $5.1 mil "3M do Brasil Ltda." actually mailed back to its mothership. The Eighth Circuit tells us that once Loper Bright entered the world the "shifting sands of administrative law brought a change in the IRS's position" and a slew of knee-slapping antics ensued worthy of a Benny Hill chase.Allegation: After giving birth, woman who'd been involuntarily admitted to Reno, Nev. hospital is allowed to leave (against medical advice) in such a fragile state that she dies several hours later near the hospital entrance. Hospital: We acted in good-faith compliance with the relevant laws. Ninth Circuit: That's a defense you can raise at trial, not an immunity from suit. No collateral review even though you are a state actor.Mexican national invokes the Convention Against Torture, arguing that his "indigenous heritage, gang-related tattoos, multiple deportations, mental illnesses, and substance-abuse disorder put him at high risk of persecution and torture" if he is deported. Ninth Circuit: The Board of Immigration Appeals' one-sentence dismissal of these arguments wasn't enough. It has to give a reasoned explanation. Dissent: This guy has been on the run for three years, his lawyer doesn't know where he is, and he was arrested on serious weapons and assault charges just last year. "This case cries out for application of the fugitive disentitlement doctrine."In 2020, Colorado voters approved a proposition that created a dedicated source of public funding for voluntary, universal preschool. Participating schools may receive funds only if they sign a nondiscrimination agreement that prohibits them from basing enrollment decisions on, among other things, a child's (or the child's family's) religious affiliation, sexual orientation, or gender identity. Two Catholic parishes challenge the nondiscrimination requirement as a violation of religious liberty and free association. Tenth Circuit: Nope.Oklahoma lawyer has one clever trick for getting around state requirement that medical-marijuana businesses have 75% Oklahoma ownership. Tenth Circuit: Not clever enough.

Victory! Under Virginia's "barrier crimes" law, people with convictions for any of 176 crimes are banned, usually for life, from working as substance-abuse counselors. Which is irrational in any number of ways, not least that—until this week—it barred people like IJ client Melissa Brown, who is a highly qualified and effective substance-abuse counselor, because of a 20-plus-year-old conviction for robbery committed while in the throes of addiction herself. For the other ways the law flunks the rational-basis test, we commend this week's federal district court decision holding as much to your attention. Huzzah! And click here to learn more.

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[Jonathan H. Adler] Justice Barrett on Common Good Constitutionalism

[The Justice discusses originalism, common good constitutionalism, and King v. Burwell in a recent interview.]

National Review has posted the first half of Dan McLaughlin's interview with Justice Amy Coney Barrett about her new book and other matters. The interview covers a range of topics, including originalism and the interim orders docket, among other things.  This bit on originalism and "common good constitutionalism" seemed to be of particular interest.

NR: . . . We have now four Gen X justices, [the others being] Justices Gorsuch, Kavanaugh, and Jackson. Our generation is actually the first generation to have come of age as lawyers with Scalia opinions, the Federalist Society, and originalism and textualism as serious arguments in the law schools. I had Justice Scalia come to one of my classes once, and debate one of our professors. So, we came of age with that — do you see any difference in the perspective of the four younger justices?

JUSTICE BARRETT: Well, I can only speak for myself, but I think, I guess the difference between when I was in law school and now, in the law just generally, is that originalism has gone from the kind of theory that was often in dissent to now it is a theory held by a majority of justices on the Court. And so, I think when I was a law student and when I was a young lawyer, and frankly, even when I was first a law professor, and I was thinking about originalism, it was a way of critiquing a lot of decisions. But if you're building up, you know, if you're employing it from a position of, hey, this isn't in the dissent, and this isn't a critique, I think it's just a little bit of a different thing. And so I think that now we're at a point where it's probably third-generation originalism.

If you think of first generation as Bork and original intent, and then second generation as Scalia and original public meaning. And I think now it's third generation originalism. I guess I would say, I'm using that to describe debates about, what do you do when the original meaning is evident but not determinative of the meaning? This is, I think, the history and tradition debate that's going on.

I guess I will add one other thing. I think that when originalism in its early iterations, certainly in the first generation and somewhat in the second generation, was very focused on judicial restraint. And that was in part because it was criticizing a method of interpretation that felt a little bit more like the Wild West or more results-oriented. And I think that — this was evident in Justice Scalia's work, as he went on — it's really not a theory of restraint, even though it's a side benefit that if you consider yourself bound by the text, you have an external constraint operating on you. But it's really a theory of law. And I think that's how Justice Scalia regarded it.

But I do think that language of "you should be an originalist, because otherwise you might be a runaway judge," has never really kind of fully gone out of dialogue around originalism.

NR: We're now in a position where there are critics of originalism from the right — people who say: It's too legally positivist. It doesn't consider enough of the common good to achieve everything that the right wants to do. How do you think about or respond to those kind of critiques?

JUSTICE BARRETT: I don't like this common good constitutionalism movement.

It feels to me like it's just results-oriented, and I think that it has all of the defects that originalists critiqued when originalism first became a self-conscious theory in the 1980s. I resist the idea that originalism wasn't around until Scalia, that originalism wasn't around until the '80s, because if you go back and look even at [John] Marshall opinions, and go back to the Founding they were looking at, you know, what did the Framers intend? They might not have always used the language of meaning rather than intent, but originalism, Keith Whittington talks about this. I mean, originalism was always a part of the Court's jurisprudence. But just like that little caveat, I just think that common good constitutionalism is just kind of results-oriented jurisprudence from the right.

I was also interested in this little bit about King v. Burwell.

NR: . . . In the book you talk, you actually get into some reasonably recent cases, hot button cases. . . .You have some, I could say, careful criticism, or at least reference to prior criticism of the King v. Burwell case, which I would note, is a case that the Court seems to have gone out of its way not to cite as a precedent since then.

JUSTICE BARRETT: [Laughs]

NR: It's a little unusual for a sitting justice to be talking about things that are fairly recent and hot. Is that something that you made a conscious choice, that you wanted to get people to understand how the Court thinks, even about recent cases?

JUSTICE BARRETT: So, I was very careful to only discuss — the only reason why I discussed King v. Burwell in a critical way is because I was already on the record as a law professor having criticized it. So, I didn't criticize any other precedent. I took all the Court's precedents as I found it. So I didn't criticize, for example, when I described substantive due process doctrine, I wasn't talking about it like I might have from scratch: "Should this be privileges or immunities clause, you know, etc." So, the only areas that I did criticize existing precedent were things where I was already on the record.

The whole interview is interesting. Part two will be posted over the weekend.

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[Jonathan H. Adler] The Roberts Court at 20: Looking Back and Looking Forward

[A recent panel discussion on the current Supreme Court. ]

On Monday, I had the honor to participate in a Federalist Society press briefing on "The Roberts Court at 20: Looking Back and Looking Forward" at the National Press Club. Other participants included Kannon Shanmugam of Paul Weiss, Benjamin Mizer of Arnold & Porter, Stephanie Barclay of Georgetown, and Xiao Wang of the University of Virginia. CBS News' Jan Crawford moderated. Video is below.

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[Josh Blackman] The Heritage Guide to the Constitution: Essay Nos. 151–175

To continue my preview of The Heritage Guide to the Constitution, which will ship on October 14, here are the authors of essays 151–175.

Essay No. 151: Prohibition On Amendment—Migration, Importation, And Apportionment —Robert G. Natelson

Essay No. 152: Prohibition On Amendment—Equal Suffrage Of The States —Robert G. Natelson

Essay No. 153: The Debts And Engagements Clause —Judge Paul B. Matey

Essay No. 154: The Supremacy Clause —Gary S. Lawson

Essay No. 155: The Oath Or Affirmation Clause —Judge Gregory G. Katsas & Andrew W. Smith

Essay No. 156: The Religious Test Clause —Gerard V. Bradley

Essay No. 157: The Ratification Clause —John P. Kaminski

Essay No. 158: The Attestation Clause —John P. Kaminski

Essay No. 159: The Establishment Clause —Stephanie Barclay

Essay No. 160: The Free Exercise Of Religion Clause —Vincent Phillip Muñoz

Essay No. 161: The Freedom Of Speech And Of The Press Clause —Eugene Volokh

Essay No. 162: The Freedom Of Assembly Clause —Tabatha Abu El-Haj

Essay No. 163: The Freedom Of Petition Clause —David E. Bernstein & R. Trent Mccotter

Essay No. 164: The Right To Keep And Bear Arms Amendment —Nelson Lund

Essay No. 165: The Quartering Troops Amendment —Andrew P. Morriss

Essay No. 166: The Unreasonable Searches And Seizures Clause —Orin S. Kerr

Essay No. 167: The Warrant Clause —Judge Elizabeth L. Branch, Francis Aul, & Austin Mayron

Essay No. 168: The Grand Jury Requirement Clause —Judge Julius N. Richardson

Essay No. 169: The Grand Jury Exceptions Clause —Judge Gregory E. Maggs & Robert Leider

Essay No. 170: The Double Jeopardy Clause —Judge Timothy M. Tymkovich & Adam Steinhilber

Essay No. 171: The Self-Incrimination Clause —Paul G. Cassell

Essay No. 172: The Due Process Clause —Gary S. Lawson

Essay No. 173: The Takings Clause —William Baude & Sarah Leitner

Essay No. 174: The Speedy Trial Clause —Judge Andrew Brasher & Jack Tucker

Essay No. 175: The Public Trial Clause —Judge Patrick R. Wyrick & Tyler Shannon

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