Yesterday's orders did feature an interesting argument between Justice Thomas and Justice Stevens about whether to grant cert. on whether to overturn Almendarez-Torres. Almendarez-Torres held that a defendant is not entitled to a jury trial on the question of whether or not he has a prior conviction, even if it is relevant to his crime and sentence. Thomas joined the opinion, now believes himself to have been mistaken, and would like to join the four dissenters in that case to overturn it. (Roberts and Alito replace two other justices in the majority of A-T; it is not clear to me how they would vote, so as many as 7 justices might be willing to overturn it.)

Stevens, for his part, also believes that A-T is wrongly decided, but thinks that the mere fact that lower courts are following a contra-constitutional decision is insufficient reason for the court to decide whether to correct the record. Doug Berman thinks that this is largely shadow play for Thomas's and Stevens's well-known stances on Roe v. Wade; this is quite possible, although there are other interesting intellectual issues at play too.

Justice Thomas, for example, argues that one reason it is important for the Court to take the case is that per State Oil v. Khan, lower courts are not empowered to correct the record themselves:

Despite ... (the case's) “infirmities, [and] its increasingly wobbly, moth-eaten foundations,” ... it is this Court’s prerogative alone to overrule one of its precedents.

Such cases should not be of inherent concern to this Court. The reason may be illuminated by assuming that the events underlying this case had arisen in another country, perhaps the Republic of Finland. If the Finnish police had arrested a Finnish citizen for possession of marihuana, and the Finnish courts had turned him loose, no American would have standing to object. If instead they had arrested an American citizen and acquitted him, we might have been concerned about the arrest, but we surely could not have complained about the acquittal, even if the Finnish court had based its decision on its understanding of the United States Constitution. That would be true even if we had a treaty with Finland requiring it to respect the rights of American citizens under the United States Constitution. We would only be motivated to intervene if an American citizen were unfairly arrested, tried, and convicted by the foreign tribunal.

My con law and first amendment professors each liked to tease us text-obsessed followers of Hugo Black by reminding us that the First Amendment says "Congress shall make no law. . . abridging the freedom of speech." Since this couldn't possibly mean that the executive may independently execute anybody who criticizes him, the argument goes, the First Amendment can't possibly mean what it says so we must repair to a higher level of abstraction. (At this level of abstraction, "no" quickly becomes "some", "abridging" becomes "burdening", "speech" becomes "expression", and so on.)

I never really bought this bill of goods. Whenever somebody tells you that the literal reading of a piece of text is so implausible as to demand repairing to its purposes instead, you should keep an eye out for sleight of hand. Like Harry Kalven, I think that common-law atextual reasoning probably does properly play more of a role in First Amendment cases than elsewhere. But that doesn't mean that it's impossible to take seriously the "Congress" command in Amendment One. In the vast run of cases, federal judges and the federal executive are empowered to act only so far as authorized by law (see the Fifth and Eighth Amendments). And since Congress can't delegate power it doesn't have, the executive can't abridge free speech either if his only power to do so comes from law.

I mention all of this because I am happy to see roughly the same conclusion in a recent opinion in Shrum v. City of Coweta by the ever-awesome Judge Michael McConnell:

Moreover, even if the First Amendment itself applied narrowly only to Congress and only to the making of "laws," this would not be the end of the matter. The Fifth Amendment, which undoubtedly applies to the executive branch, provides that "no person shall be deprived of life, liberty, or property without due process of law." This means, among other less obvious things, that executive officials cannot abridge a person's liberty (including freedom of religion) except in accordance with "law." See Edward S. Corwin, The Doctrine of Due Process of Law Before the Civil War, 24 Harv. L. Rev. 366 (1911); Youngstown Sheet & Tube Co. v. Sawyer, 343 US. 579, 646, 96 L. Ed. 1153 (1952) (Jackson. J., concurring). Thus, if the First Amendment forbids the making of "law" that infringes the free exercise of religion, and the Due Process Clause forbids the executive from taking away liberties except pursuant to "law," it follows that the First Amendment protects against executive as well as legislative abridgement. Indeed, because executive action that bears upon the private rights of individuals is almost always grounded in some statutory authority, a challenge to the executive action may be characterized as an as-applied challenge to the statute. Cf. Denbeaux, 80 Nw. U. L. Rev. at 1157 n.1. In substance, Officer Shrum's challenge to the executive actions of Chief Palmer is a constitutional challenge to the statutory grant of power to the Chief of Police to supervise employees, as applied in the circumstances of this case.

Via Pejman, I see that Sir Tom Stoppard has a new play!