Wednesday, October 23, 2002

Supreme Court Getting a head start on November's Supreme Court arguments (starting 11/4), here's a summary and a prediction for Pierce County v. Guillen, yet another case for the Rehnquist Court about "states' rights" and the limits on the Congress's constitutional authority. As you know, the dominant "conservative" wing of the Court has been on a tear for the last few years, in (a) asserting limits on the subjects that Congress can legislate about, and (b) creating a "states' rights" doctrine with various facets, such as the holding that states are immune from many types of lawsuits. (see an earlier post here). But this time, a "pro-states'-rights, anti-Congress" ruling by the conservative Supreme Court majority would paradoxically help plaintiffs who are suing their state or local government. Here, it's the Trial Lawyers of America who are saying "state's rights! state's rights!". And the local officials are saying "oh, don't worry about that old state's rights stuff this time."

The case has to do with 23 U.S.C. § 409. Local governments are supposed to gather and generate information on dangerous roads and intersections, so they can get federal funding to make them safer. But they don't want to be sued for knowingly allowing those dangerous places to remain dangerous in the meantime; so section 409, in order to make it harder for the plaintiffs' lawyers to prove cases like that, says that certain documents relating to highway safety issues can't be got-at in discovery and can't be used in court.

In a decision available here, the Washington State Supreme Court interpreted the reach of section 409 very broadly (holding that it shields a whole lot of things from discovery and from use at trial), and then said that this was (in large part) unconstitutional; in a rough summary, the contention is that Congress has no business, under the Constitution, telling state courts what to do in lawsuits that are governed by state law.

Ted at Supreme Court Blog has a good explanation of the case. I wind up at the same result as he does (in fact, we do seem to be agreeing on most cases, which must mean that we're right), though with a couple of different twists in my logic. For instance, I think that, as argued in the Solicitor General's brief (pdf), the Supreme Court might start by reading the statute somewhat more narrowly than the Wash.S.Ct. did, and then upholding it. But anyway, the Court will find something not to like in the state court's analysis, and will therefore REVERSE. My gut hunch (note: I could make it look fancier and more legal, but don't feel like it right now) is that road safety is so close to the heart of "commerce" – and commerce is so close to the heart of federal legislative power – that the Congress can pretty much do what it wants and what it thinks best about road safety.

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