Eugene Volokh's Blog, page 2750

Supermajority Rules for Court Opinions, and "Physical Precedent"

(Eugene Volokh)

Reading through a recent Georgia case, I ran across a term I hadn't heard of before — "physical precedent." And in the course of looking into this, I learned that Georgia courts, unlike most courts, have a form of supermajority rule for when a decision becomes binding precedent.

Historically, "physical precedent" seems to have been a nearly exclusively Georgia term for a precedent in which something was done, but without a reasoned consideration of whether it should have been done, and perhaps even without any controversy by the parties about whether it should have been done. "[T]he expression 'physical precedent' merely indicates that a thing has been done, but not that it has been decided to have been rightly done." Thus, for instance, a 1902 case — the earliest one I could find that uses the term — says,

It is true that in each of those cases the solicitor general was ruled and answered, and that judgment was pronounced by this court; but a reading of the facts of the cases and the opinions therein will show that the question as to the liability of the solicitor to rule was neither raised nor decided. In neither case did the solicitor demur to the rule, and the cases merely decided the priorities of the liens of the parties concerned. If there had been a demurrer in either case, the decision would doubtless have been in accord with what is decided in this case. The cases are, therefore, not binding as authority upon the question now decided, but are mere physical precedents.

A physical precedent was thus less binding on future courts than a reasoned precedent would be, though it could be influential. (Where the label comes from, by the way, I can't say; the 1902 decision used it as if it were well-known, but I couldn't find any earlier references.)

But in recent decades, this old definition of "physical precedent" has apparently mostly fallen into disuse, and a new definition has emerged: An opinion of a three-judge Georgia Court of Appeals panel is "physical precedent" if only two of the three judges sign on to the opinion, while the . In such a situation, the majority opinion is not binding on future panels, though it can be influential on such panels and especially on trial courts. And if the third judge dissents outright, then the decision of the panel apparently must be reheard by either the entire Georgia Court of Appeals or a seven-judge panel of the court; those decisions by larger judicial bodies are indeed binding precedent even if they are supported by a bare majority vote.

So Georgia seems to be one of the few American jurisdictions that requires a supermajority on a court to reach a binding decision — if the three-judge panel splits 2–1, the case must either be reheard by a larger court (if the one judge is in the dissent) or at least will lack full precedential value (if the one judge concurs only in the judgment). Many thanks to Presiding Justice George H. Carley of the Supreme Court of Georgia for helping me figure this out.

UPDATE: William Raftery of the National Center for State Courts adds:

As for courts with supermajority rules, Louisiana has provision for its Court of Appeals similar to the one in Georgia: "Each court shall sit in panels of at least three judges selected according to rules adopted by the court...A majority of the judges sitting in a case shall concur to render judgment. However, in civil matters only, when a judgment of a district court or an administrative agency determination in a workers' compensation claim is to be modified or reversed and one judge dissents, the case shall be reargued before a panel of at least five judges prior to rendition of judgment, and a majority shall concur to render judgment." (Article V, §8) ... The theory, as was explained to me once, was that a 2–1 Court of Appeals decision to reverse was "really" a 2–2 decision: 2 (Court of Appeals) judges to reverse, 2 judges (the dissenting CofA judge + the trial judge) to affirm.

Additionally, North Dakota's constitution has a super-majority requirement (Article VI, §3): "A majority of the [5 member] supreme court shall be necessary to constitute a quorum or to pronounce a decision, provided that the supreme court shall not declare a legislative enactment unconstitutional unless at least four of the members of the court so decide."

[In Nebraska], "No legislative act shall be held unconstitutional except by the concurrence of five [of 7] judges." Ne. Const. Art. V, § 2

Several other states which at least theoretically/constitutionally sit in panels (Arizona, Utah, Virginia) have language which requires a majority of the full court to declare something unconstitutional.

Eighth Circuit Strikes Down Content-Based Sign Restriction

(Eugene Volokh)

The case is today's Neighborhood Enterprises, Inc. v. City of St. Louis, litigated by the Institute for Justice. IJ's client wanted to put up this sign:

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The city said no, because the sign was banned under its Comprehensive Sign Control Regulations — but if the sign had been a flag, symbol, or crest of a nation, state, city, or fraternal, religious and civic organization," or for that matter a "work[] of art which in no way identif[ies] a product," then it would have been exempted from the ordinance. (For a discussion of the problems of the "work[] of art" exception, see this post.)

The district court concluded that the ordinance was "content-neutral," despite the content-based exceptions; but the Eighth Circuit just reversed, concluding that the ordinance indeed restricted speech based on its content: "[T]he zoning code's definition of 'sign' is impermissibly content-based because 'the message conveyed determines whether the
speech is subject to the restriction.'" (The ordinance may be viewpoint-neutral, but that's not enough for constitutionality; even viewpoint-neutral but content-based ordinances are generally subject to "strict scrutiny," and generally fail such scrutiny.) Sounds right to me.

UC Irvine Term in Review

(Jonathan H. Adler)

The UC Irvine School of Law is hosting its first annual Supreme Court Term in Review today at 12 PDT (3 EDT).  The event features UCI Dean Erwin Chemerinsky, John Eastman of Chapman University, Laurie Levenson of Loyola Law School, David Savage of the Los Angeles Times, and Slate's Dahila Lithwick.  The panel will be moderated by Rick Hasen of UCI Law and the Election Law Blog).  The event will be webcast here.

Raise Revenues, Not Taxes

(Jonathan H. Adler)

Rep. Jared Polis (D-CO) proposes several ways to raise federal revenues without raising taxes, including immigration reform, and legalizing and taxing both marijuana and internet gambling.  This all sounds good to me.

Bloggingheads TV Dialogue with Glenn Greenwald

(Ilya Somin)

I recently did a Bloggingheads TV dialogue with Glenn Greenwald, a prominent liberal legal blogger. We focused on several ongoing legal controversies, including the debate over legality of the Libya war, the constitutional controversy over the debt limit, and recent developments in the War on Drugs. It turns out that there was a high degree of agreement between us on all three of these issues (somewhat predictably on the first and third, but less so on the second). Bloggingheads TV has also put together a helpful compilation of links to articles and posts mentioned in our discussion, including some of our previous writings on the relevant issues.

Thanks to Glenn for his insightful comments, and to Bloggingheads TV for organizing this event.

Legal Brief Discusses Blog Post on Earlier Round of Legal Briefing

(Orin Kerr)

Maybe it's just me, but that seemed kind of interesting: See pages 10–11 in this brief recently filed in the Vermont Supreme Court's pending case on ex ante search warrant restrictions, which quotes from this post. I hope to have some substantive comments posted about the second round of briefing soon, but for now was just struck by the circularity of blogging about a brief that discusses blogging about a brief.

Wisconsin Senate Recall Primary Results [Update: All the Regular Democrats Win]

(Jim Lindgren)

If you want to follow the results of Wisconsin's Senate recall primary, you might go to the Journal-Sentinel's site.

Early results show that the "real" Democratic candidates are beating the Republican-sponsored "fake" or "protest" Democratic candidates by about a 2-to-1 margin, except in District 14, where the real Democrat Fred Clark leads Rol Church by a still substantial 16% with 10% of precincts reporting.

UPDATE: With 3% reporting in District 8, the real Democrat, Sandy Pasch, is trailing Gladys Huber by 16%. The identities of the candidates in each race are set out here.

2D UPDATE: With 16% reporting in District 8, Sandy Pasch has taken a large 50% lead over Gladys Huber.

3D UPDATE: Only one race is now close: In District 10, the real Democrat, Shelly Moore, leads Isaac Weix by only 6%, with 35% [then 54%] of precincts reporting.

4TH UPDATE: Moore has extended the lead over Weix to 8% with 77% [then 84%] reporting.

5TH UPDATE: With 91% reporting, the Journal Sentinel calls the race for Moore, the real Democrat. Thus, all the regular Democrats appear to have won their primaries.

Jack Balkin's Interaction Theory of "Commerce"

(Randy Barnett)

In my paper, Jack Balkin's Interaction Theory of "Commerce," I reply to his originalist analysis of the Commerce Clause that he offered in his Michigan Law Review article, which is based on a chapter of his forthcoming book, Living Originalism. Since my paper was presented at a symposium on his book, Jack has revised his manuscript to respond to my critique. Consequently, I have revised my paper to reflect his changes, which have still not persuaded me that the original meaning of "commerce" is best understood as "interaction." I have uploaded the new version of my paper to SSRN here. If you read the previous version, it has probably not changed enough to justify downloading again. But if you have not yet read it, and are interested in the original meaning of the Commerce Clause, here is the abstract:

In his book, Living Originalism, Jack Balkin proposes what he calls the "interaction theory" of the original semantic meaning of the word "commerce" in the Commerce Clause. He claims that "commerce" meant "social interaction." In this article I show why this theory is wrong due to errors of commission and omission. Balkin is wrong to reduce "commerce" to "intercourse," "intercourse" to "interaction," and "interaction" to "affecting." This triple reduction distorts rather than illuminates the original meaning of "commerce." And Balkin omits from his discussion the massive amounts of evidence of contemporary usage — along with dictionary definitions of "intercourse" — establishing that "commerce" referred to the trade or transportation of things or persons, and did not include such productive economic activity as manufacturing or agriculture, much less all social interaction. In this article, I also reply to Balkin's criticisms of my book, Restoring the Lost Constitution. I show how his heavy reliance on Gunning Bedford's resolution in the secret Philadelphia convention is misplaced in a discussion of the original meaning of the Commerce Clause.

For another first-rate critique of Balkin's Michigan Law Review article, see Commerce in the Commerce Clause: A Response to Jack Balkin by Robert G. Natelson & our own David Kopel

However misguided I think his interpretation of "commerce," I believe Jack's new book to be a masterpiece. It is the most important work of constitutional theory since Ronald Dworkin's Law's Empire. Living Originalism won't be out until the fall, but you can pre-order it here.

Op-Ed Headlines in Newspapers

(Eugene Volokh)

A commenter asked whether newspapers normally "mess with the titles of op-eds." My experience is that the newspapers have essentially complete control over op-ed headlines. They don't ask the author what headline he prefers, and they don't clear their own headline with the author beforehand. The headline is entirely up to them.

I didn't know this before I started writing op-eds, so I thought that others might not know it, and that this would therefore be worth posting about.

Oliver Wendell Breyer

(David Bernstein)

My former student Josh Blackman and I published an op-ed in the Newark Star-Ledger today. As usual, the editors changed the title and also shortened the piece. Josh has posted the original version over at Concurring Opinions.

Here's an excerpt:

Contrary to American tradition going back to the Declaration of Independence, Justice Breyer believes not in liberty against government overreaching, but in what he calls "Active Liberty"–the right of democratic majorities, guided by elite experts, to govern as they see fit.....

Breyer's jurisprudence harkens back not to great liberal Justices of the mid-to-late twentieth century, like Earl Warren and William Brennan–who, whatever their flaws, had a deep and abiding belief that civil liberties must be protected from government encroachment–but to an earlier generation of judges associated with the Progressive movement, such as Justice Oliver Wendell Holmes, Jr. and Learned Hand.

Like Breyer, many early twentieth century Progressive jurists had a soft spot for protecting political speech, but they otherwise rarely met a statute they thought exceeded constitutional boundaries. These Progressives advocated deference to the government for the same reasons Breyer articulates: reverence for experts, belief in majority rule, and the need to protect society from itself.

As a result, Progressive judges approved segregation laws, laws banning private schools, laws limiting women's ability to participate equally in the workplace, and more. Most infamously, Justice Holmes vigorously approved of forced sterilization of the allegedly mentally infirm, relying on the public interest as articulated by contemporary experts. "Three generations of imbeciles are enough," he wrote.

When New Deal liberals took over the Supreme Court in the late 1930s, however, they rejected the earlier Progressive vision and proceeded to provide strong protection for the rights listed in the Bill of Rights.

Breyer's apparent ascendance as doyen of the Court's liberal wing threatens to roll back decades of these pro-liberty precedents, and to destroy the consensus on the Court that freedom of speech and other essential rights must not be sacrificed to the shifting whims of legislative majorities.