Dan Crawford | June 28, 2010 7:26 am



by Beverly Mann

originally posted at The Annarborist

A Caveat, Walter Dellinger

“In Skilling (ably explained by Paul’s posting), my law firm colleagues pressed the argument that the statutory crime of denying anyone of the “intangible right of honest services” was unconstitutionally vague unless it was sharply limited to bribery and kickbacks. Given that the honest-services statute had been the basis of hundreds of prosecutions that had been upheld in every federal court of appeals, it may have seemed an unlikely gambit to challenge its constitutionality at this late date. The fact that all nine justices agreed that this long-standing and frequently invoked law was unconstitutionally vague suggests once again that litigants should not take law “settled” by court of appeals as a given.”

—Walter Dellinger,* writing in Slate

Well, no, with due respect to Walter Dellinger—and a great deal of respect is due here; this post and his others thus far are outstanding in their analysis not just of the narrow substantive issue that the Court decided in the cases he’s discussing, but also in their underlying indications— the fact that all nine justices agreed that this long-standing and frequently invoked law was unconstitutionally vague suggests once again that litigants who fall within one of the privileged classes of parties whose petitions to the Court will be given actual consideration by the justices should not take law “settled” by court of appeals as a given.”

The Skilling case and the related Black and Weyrauch cases decided in concert, all of them challenging as unconstitutionally vague the “honest services” statute, illustrate, as does another high-profile opinion the Court issued within the last two weeks, Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, that these justices will look the other way for many years (some of the justices, for decades), rejecting one after another after another request that the Court consider a challenge to the constitutionality of, or a challenge to a lower federal courts’ interpretation of, some statute or court-created procedural or jurisdictional “doctrine” (e.g., a court-created rule that determines whether the federal courts have “subject-matter jurisdiction” to hear the case at all), until some zillionaire CEO or some Fortune 100 corporation or some group or individual challenging as unconstitutional some government-caused diminishment of the value of their property or some other government action opposed by the Republican Party’s base.

Or at least until some other private litigant has the sophistication and financial wherewithal to hire a member of the elite group of regular Supreme Court litigators. Or until some government or government official or employee asks the Court to consider the issue.



In a remarkable admission five years ago in an opinion written by Justice Ginsburg in a case called Exxon Mobil Corp. v. Saudi Basic Industries Corp., the Court actually conceded that a subject-matter jurisdictional doctrine known as the Rooker-Feldman doctrine, created by the Court in 1983, had been routinely and profoundly misinterpreted by the lower federal courts for more than two decades. That Court-created doctrine impliedly inserted a word—the word “only”—into a particular jurisdictional statute, 28 U. S. C. §1257, so that, with that word inserted, the statute removed from the lower federal courts the authority to hear cases that challenged the constitutionality of state-court procedures or interpretations of state laws and policies.

Until last week, that is. The opinion five years ago in Exxon Mobil Corp. limited the use of the doctrine only to the extent necessary for Exxon Mobil to win. No matter that that particular limitation on the use of the doctrine was nonsensical. The limitation was that the lower federal courts indeed could consider such cases as long as the case was not completely over in the state courts, including in the appellate courts, at the time that the federal lawsuit was filed. Exxon Mobil’s case was still pending in the state courts, so—voila!—the federal courts could (no, make that, must) hear Exxon Mobil’s federal lawsuit. That ruling enabled the lower federal courts to continue to refuse to hear such lawsuits except in cases that were still pending at some level in the state-court system.

Until this month, that is. Actually, first, on June 1, the Court issued a majority opinion by Justice Ginsburg in a case called Levin, Tax Commissioner of Ohio v. Commerce Energy, Inc., holding that in the particular type of case—cases in which a party is challenging the constitutionality of a particular state tax—the party must first litigate that issue to its full conclusion in, um, state court. The case subtlely killed Rooker-Feldman in its Exxon Mobil reincarnation. But the opinion didn’t mention Rooker-Feldman.

Three weeks later, in Stop the Beach Renourishment, Inc., though—much to my surprise—it did. In an opinion by Justice Scalia, who referred derisively to Rooker-Feldman (to his credit, not for the first time during his tenure on the Court) as “the so-called Rooker-Feldman doctrine), the Court overturned the doctrine in total. The Scalia opinion doesn’t actually say that that is what the Court was doing, opting instead to say that the doctrine is not after all a subject-matter-jurisdiction doctrine but is just a reiteration of another legal doctrine called the doctrine of res judicata. The doctrine of res judicata is one that predates the Rooker-Feldman doctrine by roughly two hundred years. It bars litigants from re-litigating issues or claims that they lost on in earlier litigation—but its application is unequivocally limited by four specific requirements of constitutional due process of law.

Justice Stevens, incidentally (or maybe not incidentally), is a longtime, vociferous critic of Rooker-Feldman, and has advocated its demise.

Because this particular case challenged the constitutionality of what the petitioners to the Court called a “judicial taking” via a state court’s ruling in their case, and because these litigants had filed their Fifth Amendment “property takings” challenge in the lower federal courts after the state-court case was completed, the Court needed to effectively kill the Rooker-Feldman doctrine in all its incarnations in order to hear the case.

I wrote a few months ago on Slate’s “The Fray” discussion board that the Court would decide the case on the merits of the substantive constitutional issue, but I doubted that the Court would even mention Rooker-Feldman. I expected the justices to silently treat this as a one-case instance. So I’m surprised. And deeply gratified.

This is, of course, not to say that the lower federal courts will stop invoking Rooker-Feldman to dismiss lawsuits that challenge the constitutionality of state-court procedures or state-court rulings. But it is to say that next time some CEO, mega-corporation, or group or individual challenging the constitutionality of some state-court ruling that offends the Republican base, the Court may actually finally expressly say that it is killing Rooker-Feldman. But only if that is absolutely necessary in the particular case.

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* Walter Dellinger is a partner at O’Melveny & Myers in Washington, D.C., and head of the firm’s national appellate practice, and earlier served as head of the Office of Legal Counsel and as acting solicitor general.