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Ruth "Swing Vote" Ginsburg?:
This morning the Supreme Court handed down Ali v. Federal Bureau of Prisons, a Federal Tort Claims Act case on the scope of the FTCA's immunity waiver in the context of lawsuits against federal prison officials. I hope to blog more on it later today, but for now the vote line-up itself is interesting to note. The Court split 5-4, with Justice Thomas authoring the majority opinion joined by Scalia, Roberts, Alito, and Ginsburg. Justice Kennedy wrote the main dissent, joined by Stevens, Souter, and Breyer.

Related Posts (on one page):

  1. Ali v. Federal Bureau of Prisons:
  2. Ruth "Swing Vote" Ginsburg?:
Helen:
This breaks Kennedy's "winning streak" (being in the majority on all 5-4 votes), doesn't it?
1.22.2008 10:44am
Jacob Berlove:
While Ginsburg is usually rouped with Stevens as rthe two members of the court's far left, she does share with Justice Souter a frequency to join the conservatives affinity for a literal rendering of text in non-ideologically charged cases much more than Justices Stevens and Breyer. See e.g. Barnhart v. Sigmon Coal. This case is the latest example in the case of Justice Ginsbur.
1.22.2008 10:53am
Jacob Berlove:
Helen,

Yes it does. It is also the first dissent written by Justice Kennedy since the October '05 term.
1.22.2008 10:53am
Jacob Berlove:
Sorry about the horrible diction in my first comment:

rouped--> grouped, conservatives--> conservatives', Ginsbur--> Ginsburg
1.22.2008 10:56am
alias:
Very interesting discussion of statutory interpretation all around. Justice Breyer's reference to Scalia's quote about "hid[ing] elephants in mouseholes" was a nice touch, I thought.

If any bloggers out there are doing a Justice Ginsburg umpire watch, this might be an interesting case.
1.22.2008 11:09am
BruceM (mail) (www):
Hopefully Ginsburg agreed to vote w/ the majority on this case in exchange for a tie-breaking vote in a more important case later this term.
1.22.2008 11:23am
Mike& (mail):
. The Court split 5-4, with Justice Thomas authoring the majority opinion joined by Scalia, Roberts, Alito, and Ginsburg. Justice Kennedy wrote the main dissent, joined by Stevens, Souter, and Breyer.

Without knowing anything else about the case, I am willing to wager that a plaintiff lost.
1.22.2008 11:23am
PLR:
The majority is out of its mind. All law enforcement officials are immune from tort liability for property seizures? That's what Congress intended?
1.22.2008 11:23am
alias:
Hopefully Ginsburg agreed to vote w/ the majority on this case in exchange for a tie-breaking vote in a more important case later this term.

Sometimes I think a particular Justice's opinions are poorly reason, or that his/her voting pattern shows a lack of principle, but I think that at very least, all 9 of them are above that sort of horse-trading.
1.22.2008 11:36am
andy (mail) (www):
Looks like the majority opinion and kennedy's dissent will make their way into statutory interpretation casebooks and classes everywhere.

breyer's dissent (and his reliance on drafting history and statements from executive branch officials) may be included as an example of how *not* to interpret a statute, or as an example of statutory interpreted used to be done at the Court.

I'm not sure who I agree with on the merits (not yet having studied the statutes closely), but this looks like something that will spark a lot of commentary.
1.22.2008 11:36am
Sasha Volokh (mail) (www):
PLR: I wouldn't say "All law enforcement officials are immune from tort liability for property seizures."

All law enforcement officials, yes. See how the statute has an exception for "any officer of customs or excise or any other law enforcement officer"?

But property seizures, no. The statute's exception applies to "[a]ny claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property."

Seizures are different from just detention. Note that this case involved a prisoner who claimed that the prison, which was detaining his personal property while he was in prison, had lost some of it. Whereas seizing something happens before detention. So seizures wouldn't be covered by this exception.

Moreover, if a seizure is unconstitutional, there's already a constitutional damages remedy against the officers involved (Bivens).
1.22.2008 11:46am
andy (mail) (www):
"as an example of statutory interpreted used to be done at the Court"

should be

"as an example of how statutory interpretation used to be done at the Court"
1.22.2008 11:48am
Sasha Volokh (mail) (www):
Also, for Ginsburg on statutory interpretation, see her separate opinion in Arlington Central.

The Individuals with Disabilities Education Act says prevailing parents can recover attorney fees; the question was, does this include expert fees? The conservative majority said "no" (basically, "attorney fees" is a term of art used in many statutes, where it's been held not to include expert fees); the liberal dissent said "yes."

Ginsburg concurred, saying that while including expert fees might be good policy, "we are not at liberty to rewrite the statutory text . . . to add several words Congress wisely might have included."
1.22.2008 11:53am
Visitor Again:
"as an example of statutory interpreted used to be done at the Court"

should be

"as an example of how statutory interpretation used to be done at the Court"


Why on earth would we want to look to your explanation of what you meant in interpreting what you said?
1.22.2008 11:54am
alias:
Visitor Again, scrivener's error is a fairly uncontroversial interpretive tool.
1.22.2008 12:16pm
andy (mail) (www):
"Why on earth would we want to look to your explanation of what you meant in interpreting what you said?"

Because I am a single author and am trying to share my own, subjective thoughts (of which my words are only evidence). no one is bound by my words.

regarding laws, the goal is not to discover subjective intent (hence legislative history, etc. is useless as an expression of "intent"), but to determine the objective meaning of the words.
1.22.2008 12:20pm
loki13 (mail):

Moreover, if a seizure is unconstitutional, there's already a constitutional damages remedy against the officers involved (Bivens).



Bivens is still alive? How long until the Roberts court pulls the plug?
1.22.2008 12:25pm
PLR:
Quoting EV:
Seizures are different from just detention. Note that this case involved a prisoner who claimed that the prison, which was detaining his personal property while he was in prison, had lost some of it. Whereas seizing something happens before detention. So seizures wouldn't be covered by this exception.

OK, so they can take possession of and detain my property (as distinct from seizing it). Later, they cannot deliver it back to me, and my claim will be dismissed on sovereign immunity grounds before I get any discovery on why they can't return my property.

Doesn't make me feel better. Any libertarians out there?
1.22.2008 12:30pm
PLR:
Oops, that was SV I was quoting, not EV. Sorry about that.
1.22.2008 12:31pm
Falafalafocus (mail):
After the Visitor Again/alias thread above, I don't know whether to accept PLR's 12:31 statement.
1.22.2008 12:49pm
Sasha Volokh (mail) (www):
PLR: This should make you feel a little better. This decision has nothing to do with your ability to challenge the seizure itself. It also has nothing to do with your ability to collect money for the seizure -- to the extent it's covered by the FTCA, it's not implicated by this exception, and to the extent it's covered by the Constitution (the Court isn't wild about Bivens and doesn't like to read it broadly, as loki13 points out), it's likewise not implicated by this case. It just prevents you from collecting money for problems relating to the detention itself.

Now I understand that, all this having been said, you don't feel great about it. I agree. But this is all a result of the whole concept of sovereign immunity. I'm not wild about sovereign immunity. But the fact is that that's the system we have, and the FTCA is a partial waiver of that. To the extent the FTCA's waiver of sovereign immunity doesn't sweep as broadly as we'd like, I'm with you in not feeling great about that. (By the way, see the Scalia dissent in United States v. Johnson, joined by Brennan, Marshall, and Stevens, where he says the Feres doctrine (which bars recovery in military contexts) is all wrong!)

But I think this is a correct interpretation of the statute itself, and we shouldn't read it to be broader than it is.
1.22.2008 1:03pm
Mark Field (mail):

Visitor Again, scrivener's error is a fairly uncontroversial interpretive tool.


I think VA's point cuts a little deeper than this. The truth is, we use all kinds of interpretive strategies in ordinary discourse. It's hard to justify any artificial limitation on those strategies just because it's a statute we're interpreting.
1.22.2008 1:13pm
NaG (mail):
This also appears to be the most important opinion that Justice Thomas has written for the Court.
1.22.2008 1:21pm
Tony Tutins (mail):
I agree with Breyer's dissent that a sentence relating to customs and excise is unlikely to cover every law enforcement officer, whatever his role. While Breyer quoted JUSTICE SCALIA's more pertinent and easily remembered
English-language observation that Congress "does
not . . . hide elephants in mouseholes."
, I was thinking that the majority made the sentence resemble a clown car, with dozens of law enforcement officers tumbling out of a tiny space that could scarcely hold two.

One thing that bothered me, reading the decision: In what sense is a prison guard a law enforcement officer? Their duties and powers seem quite different from police, customs officers, and even park rangers.
1.22.2008 1:41pm
Linda Greenhouse (mail):
BTW, Kennedy dissented last term in Cunningham v. California, exactly one year ago today.
1.22.2008 1:43pm
Linda Greenhouse (mail):
I meant to say, in response to Jacob Berlove, that Kennedy filed a +written+ dissent in Cunningham - i.e. today's was not his first written dissent since OT 2005.
1.22.2008 1:45pm
Chris 24601 (mail):
Ginsburg was the swing vote in Booker too.
1.22.2008 2:03pm
martinned (mail) (www):
L.S.,

a) No, I've never been a big fan of sovereign immunity, either.

b) I've read the opinion, and thus seen the statutory text quoted several times, and I still have no idea what it means. So I think Breyer's argument is not that unreasonable: given that the statute allows more than one reading (it's a 5/4 ruling, that seems evidence enough), I think the next thing to do is to look at the wider context, i.e. teleological arguments of Congressional intent, statements made by the sponsors of the bill, etc.
1.22.2008 2:22pm
arbitraryaardvark (mail) (www):
Placing implicit reliance upon a comma at the
beginning of a clause, the Court says that the two maxims
noted, and indeed other helpful and recognized principles
of statutory analysis, are not useful as interpretative aids
in this case because the clause cannot be understood by
what went before.
- Kennedy
Maybe this is really about parsing the second amendment?
1.22.2008 2:23pm
alias:
It's hard to justify any artificial limitation on those strategies just because it's a statute we're interpreting

Right, but if it's a constitution we're expounding, we can say whatever we like, as long as we say so with the correct amount of gravitas.
1.22.2008 2:31pm
Truth Seeker:
Why is it that some people always side with the criminal against the government in every case? They don't look at giult/innocense, right/wrong, fair/unfair, or any other factors, they just support the criminal. A rational person would look look more for innocense, fairness, etc.

Here are some possible reasons:
• There is a criminal gene and while some people don't need to be criinals to survive, they still have the sympathies
•Their parents were criminals so they take that side
•Their parenst were oppressive so they take the criminal's side
•They had a bad run in with police at a young age that bent all perception
•It's just part of the left's political ideology
1.22.2008 3:31pm
arbitraryaardvark (mail) (www):
Maybe this is really about parsing the second amendment? Howard points to a tony mauro column on this topic at BLT.
•Their parents were oppressive so they take the criminal's side
•They had a bad run in with police at a young age that bent all perception

That does tend to account for some of my biases.
This is a case where person a rightfully takes something belonging to person b but then wrongfully won't give it back or pay for a new one. There's a general priciple there that for me doesn't depend on who a and b are. Although I'm ok with this decision; we can put the blame on congress for poor drafting, or blame the general idea of sovereign immunity, not at issue in the case.
1.22.2008 3:58pm
hattio1:
Truth Seeker,
Very few people side with the criminal in every case. But, I would think that more people side with the criminal in cases that make their way to the Supreme court. Those cases usually have other issues which they are dealing with.
1.22.2008 5:15pm
Jacob Berlove:
Linda Greenhouse,

You're right. I guess all that can be said is that this is Justice Kennecy's first principal dissent since the October '05 term.
1.22.2008 6:46pm
sphericity:
Any libertarians out there?

There don't seem to be many libertarians left commenting here. I wonder why.
1.23.2008 4:04pm
Hank :
Jacob Berlove: This case seems ideologically charged to me. It's about whether a prisoner can sue the government.
1.23.2008 7:23pm