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Frederick: It’s lost in the dormant commerce clause. [Laughter] I didn’t detect a trend actually. I think these cases are sui generis, with the exception maybe of Paul’s medical marijuana case, where I think there were larger things at issue. But in my case, Bates v. Dow AgroSciences, the story there is that industry and the Bush administration have taken the position that the act broadly pre-empted claims by farmers for crop damage from pesticides. And so there was a battle basically between farmers on the one hand and the chemical industry on the other. And many forces in the chemical industry used this pre-emption as tort reform. I think the Court rejected that in an opinion by Justice [John Paul] Stevens that may well clarify some of the uncertainties in pre-emption doctrine that had arisen since Cipollone [ v. Liggett Group] unleashed pre-emption forces nearly 15 years ago, and he did that in a very interesting, clever way. There had been a debate over whether the word “requirements” encompassed common law claims that someone might bring against a manufacturer, and the Court had split 4-4 in Medtronic [ v. Lohr] on whether or not “requirements” included common law claims. And so we were confronted in Bates with, well, what to do with that. We think we have four votes for our position, but it seems pretty clear that we don’t have five, and how do we get to five? We took the tack that we would argue the general theory on requirements and why in this particular context “requirements” didn’t encompass common law claims, but that only would be as an introduction to the rest of our statutory analysis and why the other words of the pre-emption clause didn’t encompass the claims that our farmers had brought against Dow. And that ended up working. Justice Stevens got seven votes for the proposition that in this particular context, “requirements” may include common law claims and that’s perfectly fine, but if you look at the words of the statute, these claims that the farmers want to bring against Dow are not pre-empted. The importance of the case was the fact that the tally sheet had been something like 103 federal and state court decisions holding pre-emption under this act and three in favor of being able to bring claims. So this was rather decisive, and the chief and Justice O’Connor join this opinion that allowed farmers who were injured by defective pesticides to bring claims. And one of the things that I think was important was that Justice Stevens accepted and the Court accepted the proposition that a history of being able to bring claims against the manufacturer is important for understanding what Congress would have intended, when, as in most of these statutes, Congress doesn’t expressly say what it means when it uses the word “requirements.” So courts have inferred that they include common law claims. But in Bates, the Court’s opinion shows that there had been a long history of farmers bringing claims against pesticide makers, and I think that was an important part of the Court’s analysis. I didn’t see anything in Bates that suggested any larger trend for federalism. And my own sense � and Kathleen can speak to this much more authoritatively than me � is the interstate wine case is something that we’ll never see again, which raises for me the interesting question: This, I think, was only the second time that Justice Scalia had been the senior-most justice and, therefore, had the authority to assign an opinion to himself, but he didn’t do that. He chose from the December sitting to take the beef case because, I think, it has much more important doctrinal implications, what with the government speech doctrine, than “What did the 21st Amendment mean?” and “Does it interplay with the commerce clause?” Because I think once that’s decided, we’re not ever going to confront that issue again. And so it’s kind of an interesting choice here. You had the chief, O’Connor, and Stevens in the minority in the interstate wine case, so Justice Scalia had the right to assign the case to himself. But he didn’t do that. He gave it to [Justice Anthony] Kennedy instead. Sullivan: Well, it was thrilling to win the wine case because we did produce a lineup that, you’re quite correct, has never existed before in nature. The case involved a dormant commerce clause challenge to those state laws that allowed in-state wineries to ship directly to your doorstep but barred out-of-state wineries from doing so. It required out-of-state wineries to go through the bottleneck of going through a distributor and wholesaler. We prevailed on the ground that the dormant commerce clause, which would obviously invalidate that sort of protectionist law if it were applied to any other commodity, also applies to the regulation of alcoholic beverages. That is, the 21st Amendment was not a trump over the dormant commerce clause. But in teeing the case up, it was very challenging because a prior decision raised a similar issue � a case involving a discriminatory excise tax that Hawaii imposed on out-of-state alcoholic beverages. Hawaii had given an excise-tax exemption to in-state pineapple wine, which I guess needed all the help it could get. [Laughter] But in that decision we knew that the chief justice and Justices Stevens and O’Connor had all ruled for the state in dissent. The majority held this wine to be struck down as a violation of the principle of national economic union, but they dissented. So we went into our case thinking that we didn’t have those three votes. Of the remaining six, we thought we were least likely to get Justice [Clarence] Thomas because we thought he would be the most literalist interpreting the 21st Amendment, which literally says the importation or transportation of alcoholic beverages for delivery or use in a state “in violation of the laws thereof” is prohibited. So we looked at each other, and I said, “So that means we have to win a coalition of Scalia, Kennedy, Souter, [Ruth Bader] Ginsburg, and Breyer.” And we all looked at each other, and we thought, “But they’ve never voted together before.” We did put them together by appealing to a kind of pragmatic, economic approach on the part of Souter, Ginsburg, and Breyer: Who needs discriminatory laws to protect children against underage drinking or to collect taxes? You can have nondiscriminatory permitting laws that achieve those goals. We appealed to Scalia on his love of bright-line rules, just as he espouses a colorblindness principle in challenges to race discrimination or race preferences. And then, finally, you get Justice Kennedy, who was the key vote and wrote the opinion. We appealed to his attachment to structural principles of federalism. The key thing about Kennedy is, he likes to take structural principles and federalism in both directions. Recall back in 1995, how in one week he sided against term limits, holding that the state couldn’t cripple the federal interest in having a Congress of whatever seniority the federal voters want, and at the same time he voted in [ United States v.] Lopez to strike down the Gun Free School Zones Act, holding that Congress should not encroach upon local law enforcement. [The wine case] kind of helps to elevate the dormant commerce clause, which is an implied structural principle not enumerated in the text, to the same level as other constitutional principles. Just as you couldn’t discriminate against out-of-state wineries run by Democrats or out-of-state wineries run by women or out-of-state wineries from blue states, the argument here was that you couldn’t discriminate against out-of-state wineries under the dormant commerce clause. So just as the First Amendment limits alcoholic beverage regulations, so does the dormant commerce clause. I don’t want to go on too long, but just to debate the key picture on federalism: Yes, there’s been a rollback of federalism, but the federalism revolution never went all the way in the first place. That is, the Court, although it struck down commandeering, limited Congress’ commerce power, and limited Congress’ civil rights enforcement power, it has never put strong limits on the conditions that Congress may attach to federal funding. So whatever Congress can’t command the states to do, it can still bribe them to do with federal funds. And Justice O’Connor, of course, would have taken federalism further and asked for more stringent limits on the unrelated conditions that Congress puts on federal funding. Nor did the Court ever strike down Garcia [ v. San Antonio Metropolitan Transit Authority], so you could still bring actions against state officials even if you can’t sue states as freely as you could before the Seminole Tribe [ v. Florida] line of cases. So the federalism revolution may have been overstated to begin with, but it has been muted with Raich. Mauro: Well, Paul, in Gonzales v. Raich, did you manage to kill off the federalism revolution? [Laughter] Clement: I think this really echoes what Kathleen was saying, that the original federalism revolution � with Lopez and Seminole Tribe in roughly 1995 � the original revolution, I think, was overstated, and I think its demise and the rumors of its demise are equally overstated at this point. I think there is more continuity in this area of the law than people who want to see big trends in individual decisions are likely to see. And I think if you go back to Lopez, for example, it was a 5-4 decision, and there was lots of limiting language in that 5-4 decision. And I don’t know why people should be too surprised to find out that the limiting language in the Lopez decision was there for a reason. I mean, there was language in Lopez that we obviously emphasized in our brief, and the Court in its opinion in Raich emphasized, about the fact that what did not happen in the Gun Free School Zones Act was something like a comprehensive regulatory structure. And, of course, there’s equally language in Lopez talking about the importance of the absence of a jurisdictional element. If you look at not just the Court’s opinions but oral argument transcripts from federalism cases, there are indications that all of those kinds of limitations in the original opinion were in there for very important reasons. So justices have suggested at oral argument that if you have something like the Gun Free Schools Zone Act, but you put a jurisdictional element in there, that solves the federalism problem even though, as a practical matter, virtually every gun moves in interstate commerce. And so I think it’s worth taking a step back and seeing that both the original revolution and where we’re left with today are both a little bit overstated in terms of their extremities, and I think there’s probably more continuity in the cases than people give them credit for. I also think that these cases sometimes show the dangers in trying to overgeneralize from a couple of cases in a term. With respect to the wine shipment case, I think that Dean Sullivan is exactly right in the sense that the one enduring lesson of this case is that the dormant-commerce-clause nondiscrimination principle has significant bite. But while that’s certainly true and this shows just how much bite that principle has, I think but for the 21st Amendment issue in the case, this would’ve been an easy 9-0 decision. Of course, states can’t discriminate specifically between in-state and out-of-state commerce. And so the enduring legacy of this case is its interpretation of the 21st Amendment, which outside of this area probably doesn’t tell you an awful lot about the relationship between the state and the federal government. And I think in the pre-emption area it’s very dangerous to try to draw broad conclusions about other aspects of the Court’s federalism jurisprudence from the pre-emption cases, because if you go back a couple of terms, the five justices that are probably most likely to find a federal statute to have pre-emptive effect are going to be the chief justice, Justice Scalia, Justice O’Connor, Justice Kennedy, and Justice Breyer. And the justices least likely to find pre-emptive effect are going to be Justice Stevens, Justice Ginsburg, Justice Souter, and Justice Thomas. And if you think about how those majorities play out when you think about the 5-4 majority in the federalism cases, what you find is that Justice Thomas and Justice Breyer are the only ones with a consistent view. Or maybe you reach the conclusion that the pre-emption cases just don’t have a whole lot to do with the Court’s other federalism cases. And I tend toward the latter view. To try to sum up the point, I think that with respect to these federalism cases, a lot of people have reacted to the Raich case and have sort of suggested that it is really surprising that this federal regulatory regime that prohibits even intrastate possession of marijuana was upheld. But again, I think if you look back at the Lopez decision, I think if you look back at some of the argument transcripts of some of the federalism cases since then, that result was less surprising than people might think. Mauro: I wanted to touch briefly on some of the civil rights cases that didn’t get much attention this term that were significant � especially for businesses. And Glen, talk if you could about the Age Discrimination in Employment Act case that you argued, and then David also argued an Americans With Disabilities Act case. In both cases the Court ruled somewhat expansively on interpretation of law, although your actual clients didn’t do too badly. Why do you think the Court was headed in that direction? Nager: In Smith v. City of Jackson, the Court held that you can have a disparate impact claim under the Age Discrimination Act, meaning a claim where you establish a prima facie violation of the statute without proof of discriminatory intent. But the Court also held that any such disparate impact claims under the Age Discrimination Act are a much more restricted variety than some in Title VII of the Civil Rights Acts of 1964 for race and sex discrimination claims. If Kathleen got an odd lineup in the wine case, this case had a somewhat odd lineup. The plurality opinion was written by Justice Stevens, joined by Justice Breyer, Justice Ginsburg, and Justice Souter. Justice Scalia concurred, agreeing that there could be disparate impact claims. But he did so on the basis of his view that there was an [Equal Employment Opportunity Commission] interpretation that the Court was required to defer to, which he read as the EEOC construing the statute to allow disparate impact claims. And Justice O’Connor, Justice Kennedy, and Justice Thomas concurred in the result, but they didn’t think there should be any disparate impact claims allowed under the Age Discrimination Act. So somehow I managed to get Justice Scalia to the left of Justice O’Connor and Justice Kennedy in a civil rights case. The case was a fascinating one for several reasons. One was that the Age Discrimination Act was passed before the Supreme Court held in 1971, in Griggs v. Duke Power Co., to even have a disparate impact claim under Title VII. So part of the debate was that the Supreme Court in 1993 held in a case called Hazen Paper [ v. Biggins] that you had to have proof of intent under another provision of the Age Discrimination Act, and that provision included the same “because of age” language that was an issue in Smith. You have a decision for the Court to make � where they’re going to apply the interpretation of Griggs construing identical statutory language in Title VII to the Age [Discrimination] Act, or are they going to apply the interpretation of Hazen Paper, construing identical language within the Age Discrimination Act to a parallel provision in the act? I think that the other interesting aspect of this case was this was the second time that I argued the issue, because two terms before the Court had a case called Adams v. Florida Power which presented the same question. I argued that case, and the Court dismissed it as improvidently granted the week after the oral argument. So this was an interesting exercise in writing a brief in the case, arguing the case, hearing the justices ask questions about the case, and then getting to do it again. So you could say that I had the supreme moot court in preparation of the case. [Laughter] And one of the surprises with Justice Scalia’s vote was in the Florida Power case, when my opposing counsel said to him, “Well, having construed this language in Griggs to allow disparate impact claims, there really is no argument this language could have another construction.” Justice Scalia responded to him, “Well, some of us may have thought the Court got it wrong in Griggs, and we wouldn’t want to extend the mistake.” And then when he actually has to issue a decision [in Smith v. City of Jackson], you don’t see a word of that. Instead, he basically endorses that proposition in referring to it. Frederick: I’d just like to make one point which hasn’t been made yet. This term, I think, ought to be remembered, notwithstanding Justice O’Connor’s retirement, as Justice Stevens’ term. He was the dominant force on the Court this term. And he wrote the Bates case; he wrote the Fifth Amendment takings case; he wrote [ United States v.] Booker, the sentencing case; he wrote Gonzales v. Raich, the medical marijuana case; he wrote the Smith case. And if you look at � you know, you kind of stack up the small subset of cases that are thought to be quite important � Justice Stevens wrote the lion’s share of those cases. And I just wanted to make that point because he’s the oldest justice and has served now for 30 years. This may well have been his most important term on the Court. Mauro: Which is why, Paul, you’ve noticed more bow ties in the Supreme Court. Clement: Could be a coincidence, but I don’t know.
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