1702692640 Some constitutional cases present structural issues involving the separation of powers. Is each branch exercising its allotted authority, and not that of another branch? Does Congress, or the president, have the authority to do what each seeks to do? Some recent examples: Does Congress have the authority to prohibit the local cultivation and use of marijuana for medical purposes, as authorized by a state’s “compassionate use” law? (The Court said yes, in Gonzales v. Raich (2005), an interpretation of the congressional power to regulate interstate commerce.) Does the president have the unilateral authority to establish a system of trial by military commission for noncitizens detained as “enemy combatants”? (The Court said no in Hamdan v. Rumsfeld (2006), a decision rich in separation-of-powers overtones while relying, as a formal matter, on statutory and treaty language.)

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1702692642 More often, constitutional cases present claims of individual rights: free speech under the First Amendment, freedom from unreasonable search and seizure under the Fourth Amendment, a claim that a law or policy amounts to the denial of equal protection under the Fourteenth Amendment. Does a state-owned law school violate the equal-protection rights of white applicants by maintaining an admissions policy that favors minority applicants?(The Court said no in Grutter v. Bollinger (2003), on the ground that the policy served the state’s “compelling interest” in increasing educational diversity.) Does the Second Amendment’s reference to“the right of the people to keep and bear arms” give individuals the right to keep a gun at home for self-defense? (The Court said yes in District of Columbia v. Heller (2008), striking down the District of Columbia’s gun-control statute.)

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1702692644 There are several observations to make about the Court’s constitutional cases. First, none of the cases mentioned here was decided unanimously; each garnered at least three dissenting votes. So whatever the Constitution was saying, the justices acted on different understandings of its commands, an indication that the art of constitutional interpretation is far from a paint-bynumbers exercise. Second, many constitutional cases, like the law school affirmative-action case, require the justices to balance competing interests, in this instance the white plaintiff’s claim of a right to equal treatment versus the state’s assertion of society’s need for an ethnically diverse educated population. Different justices will balance competing claims differently, in a contextladen process that is considerably more complex than simply deciding in a vacuum whether one side’s claim is valid. Much of constitutional law, as it has evolved, entails some sort of balancing test between competing constitutional values.

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1702692646 Third, unlike the early justices, justices of the modern Court rarely find themselves in the position of confronting the Constitution head-on. Rather, constitutional questions reach the Court encrusted by layers of precedent built up over more than two centuries. Sometimes, of course, the decision is to reject the precedent: Brown v. Board of Education (1954) interpreted the Fourteenth Amendment’s equal protection guarantee to prohibit official segregation, which a fifty-eight-year-old precedent, Plessy v. Ferguson (1896), had deemed acceptable as long as the“separate” facilities were “equal.” But in the great majority of cases, the justices sift through the available precedents like miners panning for gold, hoping to find one that suggests an answer to the question at hand. Supreme Court opinions are not built from scratch. Most contain multiple quotations from the Court’s earlier cases, from which the opinion writer reasons by analogy. In any area of doctrine in which the Court has been active for a long time, there are usually precedents that can plausibly support a variety of outcomes.

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1702692648 The 2008 Second Amendment case from the District of Columbia was an exception. Surprisingly enough, the Court had never issued an authoritative interpretation of the Second Amendment, so there was no binding law to apply to the question of whether the District’s prohibition on individual handgun ownership was constitutional. There was, of course, the amendment’s opaque, one-sentence text: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” Even leaving aside the excessive punctuation, the sentence is confusing, and its implications for individual gun rights, divorced from the context of a “wellregulated militia,” are unclear.

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1702692650 Justice Antonin Scalia, for the five-member majority, and Justice John Paul Stevens, for the four dissenters, grappled with the text and history of the Second Amendment and reached opposite conclusions. Who were “the people” whose right the amendment was protecting? According to Justice Scalia, these were the same “people” who enjoyed the other individual rights protected by the Bill of Rights, such as the First Amendment’s“right of the people peaceably to assemble.” The amendment codified a “pre-existing” individual right to self-defense, Scalia concluded. But to Justice Stevens, “the people” addressed by the Second Amendment were those with a duty to serve in the state militia, and the right was a collective one, to be exercised only in connection with military service. The two sides also disagreed over what the amendment implied by the words “bear arms.”Justice Stevens regarded the phrase as an idiom limited to the context of military service. Justice Scalia, recognizing no such limitation, interpreted the phrase as referring more generally to self-defense.

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1702692652 One of the four dissenters, Justice Stephen G. Breyer, while signing the Stevens dissent, proposed an alternative approach, which he called a “focus on practicalities.” The question he asked was what purpose the District of Columbia’s statute served and how that purpose might relate to the interests the Framers of the Second Amendment sought to protect. The District meant to protect public safety in a densely populated urban environment, Justice Breyer observed. He noted that during the colonial period, the major cities of the American colonies pursued a similar goal by restricting the storage of gunpowder in private homes, where it presented a fire hazard. Boston flatly prohibited bringing loaded firearms into “any dwelling-house” or “other building, within the Town of Boston,” despite a provision in the Massachusetts Constitution that granted “the people … a right to keep and to bear arms for the common defence.” Breyer’s conclusion was that even if the Second Amendment was understood to protect an individual right, the Framers contemplated exceptions, and the District’s gun-control law was compatible with the original understanding.

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1702692654 As the Second Amendment example shows, justices employ a variety of tools to interpret the Constitution. Text and history are the commonly accepted starting points although, as this case demonstrates, neither may provide a definitive answer. In his 1997 book, A Matter of Interpretation: Federal Courts and the Law, Justice Scalia describes himself as a textualist and an “originalist”who believes that the only legitimate basis for interpreting a provision of the Constitution is the original understanding of the Constitution’s Framers. “If the courts are free to write the Constitution anew,” he warns, “they will, by God, write it the way the majority wants … By trying to make the Constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all.”

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1702692656 Justice Breyer, on the other hand, advocates a “pragmatic”approach that rejects overarching theories in favor of “a Constitution that works well for the people today.” In his own book on constitutional interpretation, Making Our Democracy Work: A Judge’s View (2010), Breyer writes that “the Court should reject approaches to interpreting the Constitution that consider the document’s scope and application as fixed at the moment of framing. Rather, the Court should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances.”

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1702692658 Statutory cases

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1702692660 Although at first glance cases that require the justices to interpret statutes might seem simpler, the statutory side of the Court’s docket presents many of the same challenges and has provoked similar disputes over basic principles of interpretation.

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1702692662 If a statute was perfectly clear, chances are that it would not be the subject of a Supreme Court case. But it is the rare statute that by its own terms answers every question that might arise. Perhaps Congress failed to anticipate the full range of situations in which the statute might be invoked. Or, quite often, the task of addressing all the possible applications of a bill under consideration exceeds the legislative appetite for detail or requires one compromise too many. Congress is then quite happy to let the courts fill in the blanks. After all, unlike a constitutional ruling, a ruling on the meaning of a statute can be overturned by new legislation if Congress concludes that the courts have come up with the wrong answer.

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1702692664 The Americans with Disabilities Act provides a vivid example. Since its enactment in 1990, this major civil rights law, which prohibits discrimination on the basis of disability, has been the subject of dozens of court decisions, including several major Supreme Court rulings. The law’s prohibitions are, for the most part, clear, but what is a disability? Congress provided only a spare definition:“(A) a physical or mental impairment that substantially limits one or more of the major life activities; (B) a record of such an impairment; or (C) being regarded as having such an impairment.”The Equal Employment Opportunity Commission, the federal agency charged with administering the law, in turn issued a regulation defining “major life activities” to include “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”

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1702692666 A question arose quickly: what if someone had a condition that met one of the definitions but that could be mitigated by medication or by a medical device? Did the person still have a disability within the meaning of the law? Which counted, the corrected state or the uncorrected state? The statute and the regulations were silent. Two women with poor but completely correctable eyesight brought a lawsuit under the act after they were turned down for jobs as airline pilots. They argued that since they had been denied employment on the basis of their eyesight, they should be considered disabled and protected against employment discrimination. The Supreme Court found otherwise in Sutton v. United Airlines (1999), noting that with glasses, the women were not limited in any major life activity. Congress intended to limit the law’s coverage “to only those whose impairments are not mitigated by corrective measures,” the Court concluded. A man whose high blood pressure was controlled by medication was fired from his job as a commercial truck driver when the employer learned of his hypertension diagnosis. He sued, arguing that the law protected him. In Murphy v. United Parcel Service (1999), the Supreme Court rejected the claim, on the same ground: when medicated, the truck driver was not limited in a major life activity. Finally, confronted with a tide of individual claims, the Court attempted a more general clarification. In Toyota Motor Mfg. v. Williams (2002), the justices rejected the claim of a woman who was unable to continue in her assembly-line job because carpal-tunnel syndrome limited her ability to perform the required manual tasks. The Court held that “the central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people’s daily lives, not whether the claimant is unable to perform the tasks associated with her specific job.”

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1702692668 It is worth noting that the first two decisions were not unanimous. Two justices, Stevens and Breyer, objected in dissent, in the case of the nearsighted pilots, that the Court had reached the “counterintuitive conclusion” that the law’s “safeguards vanish when individuals make themselves more employable by ascertaining ways to overcome their physical or mental limitations. Observing that the Americans with Disabilities Act was designed to redress a common cause of discrimination, the two justices said that rather than read the law narrowly, the Court should follow “a familiar canon of statutory construction that remedial legislation should be construed broadly to effectuate its purposes.”

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1702692670 The disability cases thus illustrate conflicting approaches to the task of statutory interpretation: one, an effort to fit the case at hand to the statute’s precise words, and the other, an effort to step back and interpret the statute in light of the congressional purpose in enacting it. To ascertain purpose often requires reference to the statute’s legislative history—to the floor debates, the records of committee hearings, committee reports, and the final reports of the Senate and House of Representatives. For the disability act, as the dissenters pointed out, these materials made it clear that whether a person had a disability was to be determined based on the person’s uncorrected state; a person with hearing loss, for example, was to be deemed limited in the major life activity of hearing without regard to whether hearing aids could correct the problem.

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1702692672 Justice Breyer has argued that courts, as “partners in the enterprise,” should use the materials at hand to help Congress carry out its legislative purposes. Justice Scalia, by contrast, refuses to cite legislative history at all, due to what he considers its unreliability and “manipulability” by congressional staff members. Rather than guess at an underlying purpose, he argues, courts should simply hold Congress to the precise language that it enacts into law. Other justices consider legislative history to be an informative tool at least some of the time.

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1702692674 Administrative agencies

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1702692676 The steady growth of the administrative state means that the Supreme Court is often presented with the question of whether an administrative agency is properly carrying out its assigned duties. Notable cases in recent years have been driven by disputes over environmental policy and the enforcement, or lack of enforcement, of the nation’s environmental laws. Although the Clean Air Act and the Clear Water Act are decades old, dating to the 1970s, disputes over these statutes continue to provide the Court with a steady diet of cases.

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1702692678 If the statute governing an agency is unclear as to the matter at hand, the Court will defer to the agency’s plausible interpretation of its mandate. But if the statute is unambiguous, the Court directs the agency to carry out the will of Congress.

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1702692680 The refusal of the Environmental Protection Agency to regulate motor vehicle emissions of carbon dioxide and three other heattrapping gasses presented such a case late in the administration of President George W. Bush. The agency had turned down a petition from a coalition of environmental groups requesting it to initiate a formal rule-making process leading to the regulation of “tailpipe emissions” associated with climate change. In refusing to act, the EPA said it lacked authority under the Clean Air Act because the so-called greenhouse gasses were not “air pollutants” within the meaning of the statute. In an appeal brought by Massachusetts, other states, and a group of environmental organizations, the Court disagreed, noting that the Clean Air act was “unambiguous”in including these gasses within its “sweeping definition” of “air pollutants.” Going forward, the Court said in Massachusetts v. Environmental Protection Agency (2007), the agency could refuse to regulate only if it could provide a reason for doing so based on science, not policy. (Two years later, the Obama administration issued new regulations governing emissions from cars and light trucks.)

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1702692682 This case was notable for another dimension beyond administrative law. Four justices argued in dissent that the Court lacked authority to decide the case because the agency’s challengers did not have “standing”; they could not show, the dissenters said, that they suffered any actual injury from the refusal to regulate. Thus according to the dissent, the dispute was not the kind of “case” or “controversy” that met the Article III requirements for jurisdiction.

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1702692684 Consideration of this argument brings us back to a discussion of the obstacles to jurisdiction in the Supreme Court and the other federal courts. The Court has spent many years interpreting the words “cases” and “controversies.” From the beginning, the Court has refused to offer advisory opinions. There must be a concrete dispute between adversarial parties, one that is ripe for adjudication and not rendered moot by some intervening event. Essential to meeting the case-and-controversy requirement is a plaintiff with standing, a concept with three elements. First, the party bringing the suit must have suffered an injury that is actual or imminent—that is, not hypothetical—and particularized—that is, personal and not shared with the population as a whole.(This requirement eliminates most forms of “taxpayer standing”; members of the public do not have a right, simply by virtue of their status as taxpayers, to go to court to challenge policies they disagree with or believe to be unconstitutional.) Second, the plaintiff must show that the defendant caused the injury by an unlawful action or failure to act. Third, the injury must be of a sort for which a court can actually grant relief. These three requirements are often boiled down to the shorthand: “injury-infact, causation, and redressability.”

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1702692686 The majority in the Environmental Protection Agency case found that at least one of the multiple plaintiffs, Massachusetts, met all three requirements. The state faced losing coastal land to rising seas (“injury-in-fact”) in a process due at least incrementally to the contribution that emissions from motor vehicles were making to global warming (“causation”). And regulation by the agency to reduce the emissions would at least to some degree mitigate the problem (“redressability”). The dissenters argued that the state met none of the requirements: that its assertion of injury was conjectural, not sufficiently traceable to the agency’s inaction, and insufficiently likely to be redressed by regulation. The lawsuit, the dissenters concluded, did not meet the case-or-controversy requirement of Article III.

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1702692688 Clearly, jurisdictional issues such as these are contested territory in the modern Supreme Court. As this case demonstrates, each jurisdictional requirement is open to interpretation. The concepts at issue are not static. The Court’s willingness to find standing has expanded and contracted over time, often reflecting how closely the justices care to scrutinize the activity of the other branches of government. Jurisdictional questions may appear technical and arcane, but they provide an indispensable window into how the justices see the Court’s role at a given point in time.

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