Last Week at the Court: In Plain English

By Lisa Tucker
on Apr 24, 2011 at 6:22 pm

If you were watching the Court last week, you have probably heard and read more about the oral arguments that you have about last week’s opinions.  After all, the arguments were in cases about issues like global warming, extended prison sentences, and patent protection; what’s more, some of the nation’s top advocates (Acting Solicitor General Neal Katyal and former Solicitor General Seth Waxman, among them) were at the podium. 

But we did have opinions in two important, although less visible, cases.  First, on Tuesday, the Court held by a vote of six to two (with Justice Kagan recused) that a state agency can sue state officials in the same state to get them to do something (although not for money).  In Virginia Office of Protection and Advocacy v. Stewart, the petitioner – an independent state agency – sued  state officials to obtain mental health records for people committed to state mental institutions; two people had died in the facilities, and another had been injured.  The agency wanted to investigate reports of wrongdoing within the institutions, but the state had refused to hand over the records voluntarily.    Ordinarily, the Eleventh Amendment protects states from being sued without their consent in federal court. 
The legal arguments in VOPA  revolved around a one-hundred-year-old case called Ex parte Young, in which the Court held that the Eleventh Amendment rule prohibiting lawsuits against the state did not extend to suits against state officials (a technical distinction to which the Ex parte Young dissenters angrily objected) – at least not when the lawsuit is filed to stop the state from violating federal law. 

Relying on Young, the VOPA majority held that the “identity of the plaintiff” is not important – in other words, although the dissenters were worried about a state agency suing a state official, comparing such an action to cannibalism, the majority held that Ex parte Young  allowed such suits.    

There are certainly concerns when cases like this arise, concerns related to the concept of federalism (which is the idea that states should be able to resolve the problems that arise within their boundaries on their own) and sovereign immunity (or the havoc that can result from a state and state officials spending their time defending against lawsuits instead of governing). 

But many see Ex parte Young as a critical case that keeps states in line, making sure that they comply with federal law.  The VOPA opinion extends the Ex parte Young doctrine just slightly, but enough so that state agencies can now participate in the effort to keep state officials acting legally.

The Court’s second decision last week, in Sossamon v. Texas, also addressed a state’s immunity from suit.  In this case, the Court had to interpret the Religious Land Use and Institutionalized Persons Act (RLUIPA), which (as it sounds) Congress passed to protect religious freedoms in land use and prisons.  Even though the language of the statute suggests that people can sue state  governments for money when they violate the statute – by providing that “appropriate relief” is available – the Court (in an opinion by Justice Thomas, with Justice Kagan recused) explained that the act of accepting money from the federal government did not amount to the kind of consent needed for the state to waive its immunity  from suit.  In other words, Harvey Sossamon, a devout Christian who sued for his right to worship in prison, could not get any money from Texas for the harm that he suffered in prison as a result of violations of RLUIPA. 

Mr. Sossamon argued that by accepting federal funds, Texas  had forfeited its Eleventh Amendment immunity; in other words, if it wanted federal funds, it also had to follow federal law and could be sued if it didn’t.  He relied on a legal principle stemming from the Constitution’s Spending Clause:  When a state receives federal funds, individuals (like Mr. Sossamon) may sue the state for money damages.  The only restriction?  The conditions must be clear.  Therefore, Sossamon turned, in part, on whether the phrase “appropriate relief” was clear enough that the states would know that they could be sued for money damages.  Unfortunately for Mr. Sossamon, the Court held that the phrase was not clear enough to warn states that they could be sued. 

The holding is a problem for plaintiffs like Mr. Sossamon, because under Ex parte Young and other Eleventh Amendment cases, they could only sue for what we call injunctive relief, which is an order from a court requiring state officials to do or refrain from doing something.  While Mr. Sossamon’s case was in the court system, prison officials changed the rules requiring Mr. Sossamon and other prisoners to be restricted to their cells.  Therefore, Mr. Sossamon could no longer bring a lawsuit asking a court to order the prison officials to allow him out of his cell; that kind of lawsuit would be “moot,” or improper, because he was no longer being harmed.  Under the Court’s holding in his case, however, he cannot sue the state for money to compensate him for the years in which he was not allowed to worship.  In other words, the Court’s opinion leaves him without a legal remedy. 

At this point in the Term, we expect the Court to be in session for about eight or nine more weeks; the Court usually announces its last opinions of the Term by the last week in June, and the Justices mostly leave Washington for the summer.  So what is going on behind the scenes?  Last week, I mentioned that the spring is prime opinion-writing season; after all, at this point, the Court still must decide forty-five cases out of its eighty-case docket.  But how does the opinion writing work?  Let’s discuss.

As I explained last week, the Chief Justice assigns majority opinions for cases in which he is in the majority; the senior Justice in the majority assigns the others.  But no one assigns concurrences and dissents; each Justice decides on her own whether to “write separately.”  A Justice may decide to write her own, separate opinion at Conference, if it becomes clear that she does not agree, at least in part, with the majority, or she may decide to do so later on, when draft opinions are circulated.

Those less familiar with the Court’s procedures sometimes marvel at just how the circulation process occurs.  No emails here; instead, paper copies of the Justices’ draft opinions are circulated by hand, with messengers wheeling carts through the Court’s corridors.  The Justices and their clerks read the drafts and suggest revisions, sometimes indicating that a change in wording or tone would ensure their endorsement of the opinion.  While many of these revisions may be minor, some may be much more significant, suggesting wholly different analytical approaches to the issue before the Court.

But the “conversation” that occurs during circulation is critically important, because – as Justice Brennan often explained –  the most important rule at the Court is that five votes decide any issue.  In other words, while a Justice may be reluctant to make changes to his draft opinion, he may need to do so to ensure a majority.  Justice Blackmun’s papers, for example,  show that opinions often changed considerably between the first draft and the final form because the changes were necessary to “count to five,” or secure a majority.  The goal is always to get the traditional, hand-written note (and, yes, the messenger usually still delivers it) that says, “Please join me” (meaning “please add my name to your opinion”).

On the other hand, sometimes the circulation process works the other way.  Although it is less common, sometimes a Justice authoring a majority opinion will circulate a draft, then find herself unable to secure four other votes.  In that situation, she has two choices:  change the opinion to bring others on board, or turn her draft into a dissent. 

And speaking again of those concurrences and dissents, they serve a few purposes during the circulation process.  They may be sincere; a Justice may actually intend to announce and publish her separate opinion to express her views, even though they will not become law (except in very narrow circumstances beyond the scope of this discussion).  Or the separate opinion drafts may be strategic – a Justice’s intent in circulating her opinion may be to convince others to adopt her views, in which case she will withdraw her separate opinion.  Finally, a Justice writing separately may attempt to turn her concurrence or dissent into a majority opinion, especially in a situation where the majority seems shaky. 

Circulation is a complicated process; so is oral argument.  In next week’s post, I’ll discuss the reasons for oral argument sessions and how the Justices consider oral argument in their analysis of a case. 

Speaking of oral argument, this week’s arguments will feature Supreme Court veterans like David Boies, Tom Goldstein (of this blog), and John Elwood (also of this blog).  After that?  It’s all opinions from then until the first Monday in October.