Potential nominee profile: Steven Colloton
Steven Colloton, who just turned 54 on January 9, is a judge on the U.S. Court of Appeals for the 8th Circuit. Colloton graduated from Princeton University and Yale Law School before clerking for Judge Laurence Silberman on the U. S. Court of Appeals for the District of Columbia Circuit and then Chief Justice William Rehnquist on the Supreme Court. He began his practice in the Office of Legal Counsel in the U.S. Department of Justice, and then became an assistant U. S. Attorney in his home state of Iowa, a position he held for approximately eight years. After a short stint in private practice, Colloton returned to government service when President George W. Bush named him U.S. Attorney for the Southern District of Iowa in 2000. In 2003, Bush nominated Colloton to join the 8th Circuit. His confirmation to that position was uneventful: Senator Jeff Sessions tossed Colloton a few softball questions before announcing that he was highly qualified; he was confirmed by a vote of 94-1 on September 4, 2003.
In his 13-plus years of service as a federal judge, Colloton has been prolific; the 8th Circuit’s website lists him as the author of 615 different majority opinions. Even when he does not write the majority opinion, he often reveals his thinking in concurrences and dissents. We found more than 120 cases relating to controversial subjects in which Colloton either wrote or joined an opinion.
For the most part, Colloton’s decisions do what you would expect them to do: He takes conservative positions on most of the hot-button issues. However, there are a couple of surprises. He has been surprisingly friendly to campaign-finance regulations, he hasn’t advanced a particularly strong view of the Second Amendment, and he is less willing to throw out plaintiffs’ claims at the pleading stage than some of his conservative colleagues.
Here is a more detailed summary, by subject area.
Colloton overwhelmingly rules in the government’s favor in death penalty cases. In fact, in the 45 opinions we examined, Colloton ruled in an inmate’s favor only twice. First, in Dansby v. Norris, Colloton wrote an opinion that vacated the district court’s decision to deny habeas relief on confrontation clause and prosecutorial misconduct grounds, but affirming the denial of relief on every other ground. The opinion is long (over 9,000 words), and walks through each of Ray Dansby’s claims for relief, which are highly fact-specific. Dansby then sought certiorari, arguing that his claims relating to ineffective assistance of counsel were not procedurally defaulted; the case was vacated and remanded for reconsideration in light of Trevino v. Thaler. On remand, Colloton again wrote for the 8th Circuit, reaching the same result as before, and adding about 6,000 more words of analysis to address the Supreme Court’s remand (which, in Colloton’s view, did not change the result because the claims to which the remand applied were either procedurally defaulted or meritless).
Second, in Bucklew v. Lombardi, the en banc court held that the district court erred by dismissing the inmate’s Section 1983 method-of-execution claim sua sponte and without holding a hearing. Russell Bucklew’s claim alleged that because of a disease affecting his blood vessels, lethal injection would be a cruel and unusual way to execute him. The 8th Circuit court allowed Bucklew’s claim to go forward, but held that in order to succeed on remand, Bucklew would have to plead an alternative method of execution that would result in his death without undue suffering. Colloton joined that opinion without additional comment.
In every other capital case we reviewed, Colloton ruled against the defendant. On two occasions, he dissented from decisions granting relief to a defendant. In Winfield v. Steele, Colloton dissented from an order refusing to vacate a stay of execution, explaining that in his view a stay was not warranted to permit review of a request for executive clemency that had already been filed. Colloton’s views evidently persuaded his colleagues, who voted en banc (over four dissenting votes) to vacate the stay the very next day (Colloton did not write separately). And in Simpson v. Norris, Colloton dissented from the denial of rehearing en banc in a case about whether an Arkansas inmate had a sufficient opportunity to argue that mental disability precluded his execution.
Colloton also separately dissented from denial of rehearing en banc in Sasser v. Norris, a case in which the inmate lost, in order to argue that the inmate should lose for a different reason (procedural default).
Colloton has decided relatively few cases dealing with abortion, but his decisions in this area have been conservative. In Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds, Colloton joined the en banc decision reversing the grant of a preliminary injunction against the enforcement of a South Dakota law that required physicians to disclose certain information to women seeking abortions, and that also defined the term “human being” to include the unborn. The district court had found that the statute violated the First Amendment by forcing doctors to speak the state’s message, but the court of appeals, over four dissenting votes, reversed. The case later came back to the 8th Circuit after the district court granted summary judgment and a permanent injunction to Planned Parenthood, holding that the portion of the statute requiring doctors to disclose that abortion leads to “increased risk of suicide and suicide ideation” violated the First Amendment. The en banc court of appeals again reversed, upholding the statute.
Colloton wrote a brief concurrence, advancing a slightly different reading of the statute that he thought was cleaner, and also opining that neither the record before the district court nor the additional materials added into the record on appeal supported Planned Parenthood’s argument that there was no connection between abortion and suicide ideation or suicide.
Colloton hasn’t written that much about the scope of federal power, but the decisions we analyzed indicate that he is reluctant to strike down federal laws on the ground that they exceed Congress’ power under the commerce clause, and equally reluctant to strike down state laws on the ground that they infringe on Congress’ power under the dormant commerce clause.
First, Colloton has consistently joined his colleagues in rejecting commerce clause-based challenges to federal criminal statutes, including the Sex Offender National Registry Act and statutes relating to the production of child pornography.
Second, in Southern Wine & Spirits of America, Inc. v. Division of Alcohol & Tobacco Control, Colloton wrote an opinion holding that Missouri’s liquor distribution system, which requires all liquor wholesalers who sell to retailers in the state to be incorporated in Missouri, and requires all of its officers and directors to have resided in Missouri for at least three years. The court held that the outcome of the case depended on “the relationship between the dormant Commerce Clause and the Twenty-first Amendment,” which, in addition to ending Prohibition, provides that “[t]he transportation or importation into any State … for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” Citing Supreme Court precedent stating that state policies are constitutional under the 21st Amendment when they treat liquor produced out of state the same as its domestic equivalent, the 8th Circuit reasoned that because Missouri’s system does not discriminate based on the location of the producer, it met that test. The court further reasoned that the residency requirement was meaningfully tied to the aim of the 21st Amendment to allow states to maintain an effective and uniform system for controlling liquor.
In North Dakota v. Heydinger, Colloton wrote a concurrence urging the court to avoid deciding whether the commerce clause doomed Minnesota’s statute prohibiting the importation of electric power that would, on balance, increase the state’s power-sector carbon dioxide emissions. The case was unusual because it generated three opinions agreeing that the state statute was unlawful, but not agreeing on the rationale. Judge James Loken would have held that the state statute violated the commerce clause; Judge Diana Murphy would have held that the statute was pre-empted by the Federal Power Act; and Colloton held that the statute was pre-empted by the Clean Air Act, and also by the Federal Power Act insofar as it banned wholesale sales of electric energy in interstate commerce, but not to the extent that the ban was subject to exceptions. Insofar as the case tells us anything about Colloton’s views about federalism, it indicates that he is not eager to reach commerce clause questions if he does not have to.
Campaign finance. Colloton’s campaign-finance opinions indicate that he is sympathetic to limits on campaign spending, but not to limits on campaign speech. He has also cited and relied on the Supreme Court’s decision in Citizens United v. Federal Election Commission – suggesting that he may agree with the holding in that case.
In Minnesota Citizens Concerned for Life, Inc. v. Swanson, the conservative majority of the 8th Circuit held, en banc, that Minnesota’s campaign-finance disclosure requirements and contribution limitations both violated the First Amendment’s free speech protections. The more liberal judges on the court dissented with respect to the disclosure requirements. Perhaps surprisingly, Colloton broke ranks with the conservatives and wrote his own opinion, agreeing mostly with the liberal dissent, but refusing to accept one paragraph of that opinion which suggested that disclosure requirements could be justified to prevent improper or suspect relationships between elected officials and the people or groups that support them. In Colloton’s view, independent expenditures cannot give rise to an appearance of corruption under Citizens United, and so courts should not permit states to restrict expenditures on that basis alone. Still, he believed that the state’s other interests were sufficiently weighty to support the disclosure requirements.
In Wersal v. Sexton, Colloton joined a decision holding that the First Amendment protects a candidate for elected judicial office’s right to endorse or oppose another candidate for any political office (e.g., a legislator), and also to personally solicit or accept campaign contributions. Applying strict scrutiny to the Minnesota rules of judicial conduct at issue in that case, a panel of the 8th Circuit struck down those rules. The en banc 8th Circuit revisited that decision and reached the opposite conclusion. Colloton, writing for five judges, dissented. He argued that the rules were not sufficiently well-tailored to survive strict scrutiny.
Wersal was a follow-on case to Republican Party of Minnesota v. White, which addressed the constitutionality of different Minnesota judicial-election rules. In that case, which went up to and back down from the Supreme Court, Colloton wrote a separate concurrence picking-and-choosing from the various parts of the en banc majority’s opinion. His entire concurrence read: “I concur in Parts I, II.B, II.C introduction, II.C.2, II.D introductory text, II.D.1, II.D.2.a, II.D.2.c, II.D.3, and III of the opinion of the court, and in the judgment of the court.” The parts of the opinion he opted out of were the part describing the merits of electing judges, the discussion of what constitutes a compelling state interest for strict-scrutiny purposes, and the part of the opinion arguing that the underinclusiveness of the judicial rules undermined the state’s claim that its interests were sufficiently compelling. The opinion suggests that although Colloton is sympathetic to First Amendment challenges to election speech, he is not a particular fan of an elected judiciary, and is willing to voice his disagreement with reasoning he doesn’t like.
In Minnesota Citizens Concerned for Life, Inc. v. Kelley, Colloton joined a unanimous opinion in a case about the constitutionality of several other Minnesota campaign-finance laws. The court upheld the requirement that organizations disclose the identity of donors who give a certain amount for lobbying; it upheld the provision prohibiting transfers of funds between candidate committees; it upheld a provision establishing different contribution limits for election and non-election years; it upheld provisions limiting the total percentage of a candidate’s funds that he could receive from PACs; and it struck down a provision prohibiting charities and similar organizations from soliciting funds from candidates.
Voting Rights. With regard to the Voting Rights Act, the only real data point we have is Cottier v. City of Martin, which resulted in three separate published opinions. In that case, the American Civil Liberties Union filed suit on behalf of a group of Native American residents of the city of Martin, South Dakota, the population of which is 45% Native American, but which has only previously elected Native American aldermen if they run unopposed. The ACLU argued that the city’s wards had been arranged to dilute the Native American vote. A district judge initially denied relief, concluding that the white voters in Martin do not vote sufficiently as a bloc to give rise to a Voting Rights Act violation. A panel of the 8th Circuit reversed, holding that the district court’s decision had been clearly erroneous. Colloton dissented, stressing the fact-intensive nature of vote-dilution claims and defending the district court’s holding by arguing that “there was simply a failure of proof by the plaintiffs.”
On remand, the plaintiffs prevailed and the city was required to revise its election scheme to abolish its wards and conduct an at-large vote. The city appealed, arguing that the remedy was not permissible under the Voting Rights Act because it was not permitted by state law. The 8th Circuit again affirmed, and Colloton again dissented, arguing that the only appropriate remedy would have been to create a district or ward in which Native Americans constitute a majority. If it was not possible to do so, Colloton argued, then there could be no liability for vote dilution in the first instance.
Colloton’s views on all counts were vindicated when the 8th Circuit reheard both Cottier appeals en banc, reaching the opposite conclusion from both panels. Colloton wrote the en banc opinion, holding over four dissenting votes that because the district court had not been clearly erroneous when it dismissed the action in the first instance, no remedy was warranted.
We found four pertinent Second Amendment cases. Colloton rejected a Second Amendment challenge to gun laws each time – personally writing an opinion in three of those cases. These are Rodgers v. Knight (rejecting claim that the seizure and retention of a citizen’s firearms by police had violated citizen’s Second Amendment rights); United States v. Bena (rejecting constitutional challenge to federal statute punishing possession of firearms while subject to a court order of protection); and United States v. Lippman (concurring in the judgment and arguing that assuming the Second Amendment confers an individual right to bear arms, the federal prohibition on possession of a firearm by a person subject to a domestic-violence restraining order is constitutional). In United States v. Humphrey Colloton joined, without writing separately, a panel opinion upholding the constitutionality of federal felon-in-possession gun felony statute.
Colloton’s decisions in cases involving religion have tended to track conservative votes in the Supreme Court: He takes a limited view of the establishment clause, and a stronger view of the Religious Freedom Restoration Act.
One notable exception to that general statement is that when prison inmates have alleged religious freedom violations, Colloton has mostly ruled against them. Examples of such cases include Fegans v. Norris (holding that policy prohibiting male inmates from wearing hair below the collar did not violate the Religious Land Use and Institutionalized Persons Act) and Kendrick v. Pope (dissenting to argue that the court should have affirmed the dismissal of a Section 1983 claim by an inmate alleging that a correctional officer had unlawfully destroyed her bible and confiscated her rosary beads). In addition to these decisions, which Colloton himself wrote, he also joined at least a dozen other decisions rejecting inmate religious-freedom claims. More recently, however, after the Supreme Court granted certiorari in Holt v. Hobbs, Colloton recognized that the tide might be turning against the precedent set in Fegans, and he dissented from an order affirming the dismissal of another Arkansas inmate’s beard claim, arguing that the case should have instead been held for Holt. So his views regarding inmate claims may be evolving.
When individuals have argued discrimination on the basis of religion, Colloton has often sided with the employer. Such cases include EEOC v. Trans States Airlines, Inc. (affirming dismissal of employee’s religious-discrimination claim) and Bray v. Douglas County (unpublished per curiam decision rejecting religious discrimination Title VII claim). Nothing about these decisions, however, suggests that Colloton harbors any unusual hostility toward discrimination claims based on religious exercise per se. In fact, there are important counterexamples. Colloton joined an opinion siding with the employee in Wigg v. Sioux Falls School District, an interesting case about the intersection between the free exercise clause and the establishment clause. In that case, the employee (a school teacher) wanted to participate in an after-school Christian program held on the school campus. The school district refused to let her do so, citing establishment clause concerns. The teacher argued that this restriction violated her free exercise rights. The 8th Circuit held that the teacher was right, and that allowing her to participate in the program would not raise any establishment clause concern because the teacher sought only to be treated like any other private citizen, and so allowing her to participate would not transform her speech into state speech that might violate the establishment clause. Colloton joined the opinion except for its first footnote, which involved a minor procedural point about the preservation of certain peripheral arguments.
Colloton joined another opinion favoring religious exercise over the establishment clause in ACLU Nebraska Foundation v. City of Plattsmouth. There, the city had displayed a monument showing the Ten Commandments, and the district court had found an establishment clause violation. A majority of the en banc 8th Circuit reversed, holding that under the Supreme Court’s decision in Van Orden v. Perry, which upheld the display of a similar monument in Texas, there was no establishment clause problem. Two judges dissented, noting that the monument in Van Orden had stood alongside 17 similar monuments depicting other traditions, but the monument in Plattsmouth stood alone. Colloton joined the majority.
Colloton has also joined several opinions upholding claims against the federal government’s efforts to enforce portions of the Affordable Care Act against religious employers. Examples include Annex Medical, Inc. v. Burwell (Colloton concurred in the judgment to argue that a remand on the issue of standing was unnecessary because the plaintiff’s standing was clear; on the merits he thought the plaintiff should win against the administration); O’Brien v. U.S. Department of Health & Human Services; Sharpe Holdings, Inc. v. United States Department of Health & Human Services; and Dordt College v. Burwell.
This topic isn’t all that controversial, but it’s worth mentioning because Colloton’s decisions indicate that he has strong views about procedure and jurisdiction. Indeed, in 2012 Chief Justice John Roberts appointed Colloton to serve as the chair of the Advisory Committee on Appellate Rules, and Colloton’s decisions show that he has given a lot of thought to how litigation ought to proceed. For example, in several cases cited above, Colloton either wrote separately or dissented in order to amplify a point of procedure.
One way in which Colloton has broken from conservative orthodoxy is in his understanding of pleading standards. In Horras v. American Capital Strategies, Ltd., Colloton dissented from a decision affirming the dismissal of a plaintiff’s lawsuit. The dispute between the majority and the dissent turned on the significance of the Supreme Court’s decisions in Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly, which required plaintiffs to make plausible allegations. Colloton cautioned that although the shift to the stricter pleading standard in Twombly and Iqbal was “an important development,” courts “must be careful not to embellish it.” Colloton believed that the majority’s application of Twombly and Iqbal brought “to mind the technical requirements of the code pleading regime that was superseded by the federal rules and the simplified notice pleading approach.” He would have held that the complaint was sufficient.
That is a somewhat surprising result because many conservative justices, and most of the defense bar, have been very willing to use Twombly and Iqbal to dismiss lawsuits as early as possible (before defendants incur the substantial expense of discovery). Colloton’s dissent suggests that he might be more solicitous of plaintiffs.
Andrew Hamm contributed extensively to this post, identifying, reviewing and analyzing the cases summarized above.
Recommended Citation: Tejinder Singh, Potential nominee profile: Steven Colloton, SCOTUSblog (Jan. 11, 2017, 12:01 PM), http://www.scotusblog.com/2017/01/potential-nominee-profile-steven-colloton/