Category: reason

Well, that was close.

After being handed a hot mess of a nanny-state weed bill from their peers in the state House, a Montana Senate committee has heavily amended the legislation and set the stage for a functional adult-use cannabis program in the state. Although the bill still contains substantial limitations, when the program launches next January, it will largely be a victory for advocates of common sense reform.

“Given the circumstances, we did as good a job as we could,” Senator Tom Jacobson (D–Great Falls), a member of the committee, told the Daily Montanan.

It’s been a long road to legalization in Big Sky Country. After activists ran a triumphant signature gathering campaign for Initiative 190 in the midst of the pandemic-related lockdowns, voters passed the measure by solid margins last November. Yet the state’s Republican majority decided to repeal the bill and replace it with their own legislation. Three such bills were introduced, and HB 701, which was endorsed by Republican Gov. Greg Gianforte and drafted with input from consulting firm Deloitte, won out. Yet the version of HB 701 that passed the House was rife with preposterous nanny-state restrictions: It banned outdoor grows and all forms of advertising. It also prohibited pot shops, including the 200-plus medical dispensaries already in operation, from using branded packaging to distinguish themselves in a crowded marketplace.

Most alarming was a provision that requires counties to opt in to the industry—states typically permit counties to opt out—and allowed county leaders to decide which businesses merited an arbitrary “certificate of good standing,” thus qualifying for a license. That included current medical dispensaries, whose owners and employees could have found the rug pulled out from under them.

Rep. Mike Hopkins (R–Missoula), HB 701’s sponsor, suggests that the policy was necessary to ensure the bill’s passage in the House, but he’s also on board with the amended bill. “It’s going to be one of the best adult-use programs in the United States,” Hopkins tells Reason. 

His optimism is well-founded. This week, the Senate Select Committee on Marijuana Laws rectified many of the most glaring issues found in HB 701. They killed the “certificate of good standing” measure, compromised on the opt-in policy, moderately loosened packaging laws, grandfathered in outdoor grows, created a special expungement court for past marijuana offenses and rewrote language to ensure that each of the state’s eight Indigenous tribes would qualify for an automatic license. Yet other restrictions, including the advertising ban and controversial limitations on how quickly a new business can scale up, remain in place.

“Having participated in the hearings and witnessed a lot of prejudices, I’m fairly optimistic that level heads prevailed and the politicians acted in good faith,” says Zach Block, the owner of Montana Canna in Kalispell. “It’s a far better starting point than we were fearing it would be.”

While the revised bill will ease the state’s anxious cannabis industry, it might not assuage the citizens and lawmakers alike who have been rattled by the legislature’s anti-democratic approach to the voter initiative. (Opponents of the initiative argued it was unconstitutional for suggesting it had the power to allocate revenue; that issue is the focal point of an ongoing lawsuit.)

“Our job as a legislature, I believe, is to appropriate money in the ballot initiative, not to tinker with the will of the voters or pull a bait-and-switch with the electorate,” Rep. Mary Ann Dunwell (D–Helena) said during a hearing on the House version of 701.

Granted, things could have played out much worse, like in neighboring South Dakota, where, as Reason reported, Gov. Kristi Noem (R) has taken aggressive steps to shut down voter-approved cannabis reform. Yet the Montana legislature’s willingness to throw out the voter initiative tracks with other policies they’ve implemented this session: ending same-day voter registration, removing local control in a number of areas and attempting to severely handicap residents’ ability to participate in the initiative process itself. 

“The whole process was an extremely dishonest brokering of the will of the people,” says Pepper Petersen, who helped write Initiative 190 and is now the CEO of the Montana Cannabis Guild.

While activists are breathing a sigh of relief, the battle ain’t quite over yet. The legalization bill, which has now passed the Senate, still needs to be reaffirmed by the House, and signed by Gianforte. Let’s hope the process goes off without a hitch or further amendments. A more restrictive bill would be bad for democracy and business alike.

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4/24/1963: Sherbert v. Verner argued.

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When the transit agency that serves Washington, D.C., replaced its aging trains during the last decade, it ended up paying about $400 million more than global averages—the equivalent of an additional 150 cars.

One major reason for the higher costs, according to economists with the American Action Forum who studied the D.C. Metro’s procurement process, was a federal mandate first imposed in 1982. It requires that equipment purchased by federally subsidized transit agencies contain at least 60 percent American-made components.

Such “Buy American” rules for government purchases, which apply to a wide range of goods, have been around since the heyday of protectionism in the 1930s. They are political tools that drive up costs and distort markets while allowing politicians to claim credit for defending domestic industries from foreign competition. President Donald Trump expanded “Buy American” rules as part of his administration’s attack on free trade, and President Joe Biden has doubled down on that misguided policy.

“The previous administration didn’t take it seriously enough,” Biden said on January 22, before signing a series of executive orders that restricted the process for granting exemptions from the government’s existing “Buy American” rules and created a new White House office to oversee a government-wide “Made in America” push. In another order, Biden instructed federal agencies to “increase the numerical threshold for domestic content requirements for end products and construction materials,” although the specifics will vary from item to item. Trump may have been more outspoken about his anti-trade views, but Biden likely will prove to be the more competent protectionist.

The cost of “Buy American” provisions can be significant. An analysis by the Peterson Institute for International Economics, a pro-trade think tank, found that “Buy American” rules on the books in 2017 cost taxpayers $94 billion that year—$745 per household.

These rules not only require the government to overpay certain vendors; they also distort the market in other ways. One potential government contractor might get an advantage over another because it makes widgets with 61 percent of the components produced in America instead of 58 percent. Favoring one over the other is purely arbitrary in an era when global supply chains mean everything from N95 masks to subway cars are the product of cross-border trade.

Overpaying for subway cars didn’t make the D.C. Metro safer or more efficient. All it did was force riders and taxpayers to spend more for less. The same will be true of Biden’s policies.

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I have written two posts about arcana in Jones v. Mississippi. Here, I will focus on the most important jurisprudential aspect of the case: stare decisis. Going forward, Justice Kennedy’s 5-4 progressive decisions should no longer be treated as precedential. For sure, the Court will not overrule those cases. There is no need to. Instead, the Court will limit those cases in the most narrow fashion possible. The dissent will carp about stare decisis. And the majority will simply move onto the next case. Justices Breyer, Sotomayor, and Kagan should create a macro to save time on writing these dissents. And they will keep spinning the same broken record over and over again.

In Part II.C of her dissent, Justice Sotomayor plays the greatest hits. She cites Chief Justice Robert’s concurrence in June Medical. Justice Alito’s majority opinion in Gamble. Justice Kavanaugh’s concurrence in Ramos, and his plurality in AAPC. So far, Justice Sotomayor treads familiar ground.

But then the dissent takes an unusual turn. Justice Sotomayor intimates that lower courts should follow Miller and Montgomery “faithfully,” even if the Court narrowly confined the scope of those decisions:

For present purposes, sentencers should hold this Court to its word: Miller and Montgomery are still good law.⁶ See ante, at 19 (“Today’s decision does not overrule Miller or Montgomery“). Sentencers are thus bound to continue applying those decisions faithfully. Thankfully, many States have already implemented robust procedures to give effect to Miller and Montgomery. In other States, the responsibility falls squarely on individual sentencers to use their discretion to “separate those juveniles who may be sentenced to life without parole from those who may not.” Montgomery, 577 U. S., at 210. Failing to do so violates the EighthAmendment. 

Let’s put into perspective what is going on here.

The Court adopted a very, very cramped rule reading of Montgomery, such that a sentencer need not make a finding that the defendant is “incorrigible.” But the Court declined to overrule Montgomery. Justice Thomas accurately described the majority: “Montgomery gave a good-for-one-ride ticket to a class of juvenile offenders, and its errors will never be repeated.” Justice Sotomayor disagreed with that reading of Montgomery. She concluded that the Eighth Amendment demands a finding of incorrigibility. And because Montgomery was not overruled, a sentencer should still adhere to Justice Sotomayor’s reading of Montgomery. Why? The failure to follow that reading would violate the Eighth Amendment. After all, judges take an oath to the Constitution, and not to the Supreme Court. Wow!

When I read this passage, my mouth dropped to the floor. It is difficult for a Supreme Court decision to shock me. I am often disappointed, but usually I can predict the general range of possible decisions in advance.The last time I was this shocked was when CJ Roberts overruled Korematsu in the travel ban case. (I was in the Court during the handdown). Did not see that one coming. And before 2018, the last big shocker was probably NFIB v. Sebelius.

Here, Justice Sotomayor has opened an entirely new front in the battle over stare decisis: if the Roberts Court is unwilling to formally overrule a precedent, then lower courts should still follow those decisions “faithfully.” Truly, this proposition is remarkable. Justice Sotomayor is inviting trial courts to engage in a judicial resistance of Jones. Yes, I used the phrase judicial resistance. Unless the Court is willing to bite the bullet and formally overrule the precedent, judges should still follow a rejected-reading of Montgomery and Miller. The antidote to stealth overruling is stealth underruling: lower courts should quietly fail to give a new Supreme Court precedent its fairest reading, in order to preserve a now-rejected reading of an older precedent.

This invitation is quite crafty. Let’s say a sentencer declines to sentence a juvenile defendant to LWOP because the defendant is not incorrigible. That decision can be baked into the broader element of “discretion.” Could an appeals court reverse a sentence, because the Supreme Court held that incorrigibility was not required? Of course not. A factor may not be required, but a judge, in his discretion, can still consider that factor. In other words, sentencers can get away with ignoring Jones, and probably will.

My, how far we’ve come. Several years ago, courts across the land anticipated the overruling of Baker v. Nelson. Now, judges are invited to adhere to readings of precedent that the Supreme Court formally rejected.

If we see this practice proliferate in other contexts, I suspect the Court will use the shadow docket to summarily reverse any dissidence. Still, those cases take years to bubble up. And the Court’s can’t catch them all. Viva la resistance.

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Every year, I assign the Case of the Speluncean Explorers by Lon Fuller. In this classic article, hikers, who are trapped in a cave, resort to cannibalism. They are later charged with murder for eating one of their partners. The defendants were convicted in the lower court. The five judges on the fictional Supreme Court of Newgarth sharply divided over how to resolve the case. I assign this article to teach students about the different types of judicial philosophies.

Chief Justice Truepenny wrote the first opinion. He would have followed the plain text of the murder statute, and upheld the conviction. Yet, he seemed uncomfortable with the result. After all, it was unjust to prosecute people for murder who were on the verge of starvation. They killed to eat! At the end of his opinion, Truepenny urged the Chief Executive to grant clemency to the defendants:

In a case like this the principle of executive clemency seems admirably suited to mitigate the rigors of the law, and I propose to my colleagues that we follow the example of the jury and the trial judge by joining in the communications they have addressed to the Chief Executive. . . . I think we may therefore assume that some form of clemency will be extended to these defendants. If this is done, then justice will be accomplished without impairing either the letter or spirit of our statutes and without offering any encouragement for the disregard of law.

Justice Keen wrote a separate opinion. He too, would have upheld the conviction. In his view, the only question was whether the defendants’ conduct was prohibited by statute. And it was. Yet, Justice Keen vigorously disagreed with the Chief Justices’s clemency request:

I should like to begin by setting to one side two questions which are not before this Court. The first of these is whether executive clemency should be extended to these defendants if the conviction is affirmed. Under our system of government, that is a question for the Chief Executive, not for us. I therefore disapprove of that passage in the opinion of the Chief Justice in which he in effect gives instructions to the Chief Executive as to what he should do in this case and suggests that some impropriety will attach if these instructions are not heeded. This is a confusion of governmental functions—a confusion of which the judiciary should be the last to be guilty.

Alas, Justice Keen still conveyed wishes to the Chief Executive in his “private” capacity.

I wish to state that if I were the Chief Executive I would go farther in the direction of clemency than the pleas addressed to him propose. I would pardon these men altogether, since I believe that they have already suffered enough to pay for any offense they may have committed. I want it to be understood that this remark is made in my capacity as a private citizen who by the accident of his office happens to have acquired an intimate acquaintance with the facts of this case. In the discharge of my duties as judge, it is neither my function to address directions to the Chief Executive, nor to take into account what he may or may not do, in reaching my own decision, which must be controlled entirely by the law of this Commonwealth.

I always ask my students whether it is appropriate for judges to write, or even suggest, that a defendant in a case is worthy of executive clemency. Most students say the answer is no. The judiciary should follow the law, wherever it leads, and allow the other branches to do their jobs. Usually, students who are inclined to favor clemency also favor a reading of the statute that would reverse the convictions. In any event, few students will actually defend Justice Truepenny. This academic exercise is fun.

Yesterday, the exercise was not academic in Jones v. Mississippi. The very last paragraph of Justice Kavanaugh’s majority opinion suggests that other branches of the Mississippi government should help the defendant, Brett Jones:

Finally, our holding today is far from the last word on whether Jones will receive relief from his sentence. Jones contends that he has maintained a good record in prison and that he is a different person now than he was when he killed his grandfather. He articulates several moral and policy arguments for why he should not be forced to spend the rest of his life in prison. Our decision allows Jones to present those arguments to the state officials authorized to act on them, such as the state legislature, state courts, or Governor. Those state avenues for sentencing relief remain open to Jones, and they will remain open to him for years to come.

Why? Why is this section necessary? The Supreme Court should focus on its own business, and let the other branches of state government do their jobs. Stay in your lane.

Indeed, the bulk of Part III of Justice Kavanaugh’s opinion (p. 20-22) is utterly unnecessary. Why is it relevant how many people have benefited from Montgomery and Miller? Why should we care whether there is “agreement or disagreement with the sentence imposed against Jones”? That dispute is not before the Court. Why is it the Court’s concern whether the states impose “additional sentencing limits in cases involving defendants under 18 convicted of murder.” Of course there are 51 imperfect solutions. But it isn’t the Court’s job to speculate about hypothetical legislation.

In her dissent, Justice Sotomayor spikes this volley:

Having deprived Jones of his constitutional right, the Court gestures at a potential lifeline from other institutions, including the Mississippi Legislature or Governor. Ante, at 22. But “the remote possibility” of such action “does not mitigate the harshness of the sentence” that Jones now faces. Graham, 560 U. S., at 70. The Eighth Amendment guarantees juvenile offenders like Jones a basic constitutional protection against disproportionate punishments. The Court should not leave the vindication of such important legal rights to others, or to chance.

This sort of hand-wringing is, unfortunately, a common feature of Justice Kavanaugh’s jurisprudence. In case after case where he reaches a socially-conservative rule, he apologizes to progressives.

I first noticed this sort of virtue signaling in the Maryland peace cross case. Part I of his concurrence was excellent. Part II was nauseating:

The Bladensburg Cross commemorates soldiers who gave their lives for America in World War I. I agree with the Court that the Bladensburg Cross is constitutional. At the same time, I have deep respect for the plaintiffs’ sincere objections to seeing the cross on public land. I have great respect for the Jewish war veterans who in an amicus brief say that the cross on public land sends a message of exclusion. I recognize their sense of distress and alienation. Moreover, I fully understand the deeply religious nature of the cross. It would demean both believers and nonbelievers to say that the cross is not religious, or not all that religious. A case like this is difficult because it represents a clash of genuine and important interests.

We saw similar virtue signaling in the DACA case. Kavanaugh would have ruled against the Dreamers, but praised them.

For the last 20 years, the country has engaged in consequential policy, religious, and moral debates about the legal status of millions of young immigrants who, as children, were brought to the United States and have lived here ever since. Those young immigrants do not have legal status in the United States under current statutory law. They live, go to school, and work here with uncertainty about their futures. Despite many attempts over the last two decades, Congress has not yet enacted legislation to afford legal status to those immigrants.

And ditto for Bostock. He rejected Justice Gorsuch’s reading of Title VII, but praised LGBT people.

Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII. I therefore must respectfully dissent from the Court’s judgment. 

In the past, Justice Kavanaugh checked his privilege in separate writings. But in Jones, this abjuration seeped into the majority opinion. I’m disappointed Justices Alito, Gorsuch, and Barrett joined the drecky Part III. Justice Scalia never would have joined it. Justice Thomas, I think correctly, argues that the majority misreads precedent. But I doubt Justice Thomas could have joined this pablum.

Conservative justices do not need to apologize for reaching socially-conservative results. Stop worrying about what other branches will do. The Governor of Mississippi can do his job without being nudged by the Supreme Court. Stop apologizing for the people you are ruling against. These “thoughts and prayers” will be cold comfort as Brett Jones spends the rest of his life in prison. Stop praising the people who are harmed by your ruling. The Dreamers facing deportation could care less about your view of State Farm.  This pseudo-empathy serves no purpose. Make your decision and own it.

One final note about virtue-signaling in Jones. Justice Thomas wrote a fiery footnote 2. He highlighted a linguistic inconsistency. When progressive Justices are writing about the Eighth Amendment, minors are called “children.” But when writing about abortion, minors are “women.” What could explain this disparate treatment?

The Court’s language in this line of precedents is notable. When addressing juvenile murderers, this Court has stated that ” ‘children are different’ “ and that courts must consider “a child‘s lesser culpability.” Montgomery, 577 U. S., at 207–208 (emphasis added). And yet, when assessing the Court-created right of an individual of the same age to seek an abortion, Members of this Court take pains to emphasize a “young woman‘s” right to choose. See, e.g., Lambert v. Wicklund, 520 U. S. 292, 301 (1997) (Stevens, J., joined by Ginsburg and BREYER, JJ., concurring in judgment) (emphasis added); Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 899 (1992) (joint opinion of O’Connor, Kennedy, and Souter, JJ.); Ohio v. Akron Center for Reproductive Health, 497 U. S. 502, 532 (1990) (Blackmun, J., joined by Brennan and Marshall, JJ., dissenting). It is curious how the Court’s view of the maturity of minors ebbs and flows depending on the issue.

Justice Thomas had a similar linguistic tiff with Justice Ginsburg in 2019 concerning the word “mother” in abortion cases.

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