Legal Commentary

I hope to have more to say over the weekend about today's cert. grant in al Marri (disclosure: I co-authored an amicus brief in support of certiorari on behalf of a group of law professors--apropos Adam Chandler's piece about the disparity in amicus briefs in support of cert.), and a Third Circuit decision from today about torture, diplomatic assurances, and due process that I think is pretty significant... But first, in crawling out from under a rock, I wanted to chime in about a SCOTUSblog post from yesterday that I take some issue with.

The post is the recap of Wednesday's oral argument in Haywood v. Drown, a case I've been following pretty closely for awhile (and in which I co-authored an amicus brief on behalf of a group of law professors). David Owens, the Stanford law student who did the write-up, did a thorough job of summarizing the exchanges (the transcipt is available here), but as someone else who was there, I think there is a disconnect between the summary and the analysis that manifests itself in the first and last paragraphs.

First, Owens writes that "Though briefed primarily as a case about whether Section 24 of New York Correction Law violates the Supremacy Clause, the oral argument revolved more heavily around an issue the Court has recently been grappling with: determining what the characteristics of ?jurisdiction,? are." True, but the "jurisdiction" question in Haywood was hardly unexpected -- it goes to the heart of the Supremacy Clause issue, since the states are generally free to adopt neutral jurisdictional rules so long as they treat state and federal causes of action similarly. Under the Court's longstanding precedent in this area, it's only if the state rule is neutral in its impact on federal claims that we reach the second question--i.e., whether the state had a "valid excuse" for the rule.

That leads me to the write-up's last paragraph:

Again, the description of the exchange is accurate, but it's important to remember that the "valid excuse" question simply doesn't matter if the state rule is not neutral in its impact. Given the tenor of New York SG Barbara Underwood's exchanges with him, I left the argument with the clear impression that Justice Breyer wouldn't even get to this question--that he believes the state law does discriminate against Section 1983 claims--and that he won't be alone (and perhaps won't even be in the minority) in that regard.