Alan Morrison Text of Fourth Interview: January 26, 2008

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Oral History of
ALAN MORRISON
Fourth Interview – January 26, 2008
MR. MARCUS: Daniel Marcus interviewing Alan Morrison on January 26, 2008. Alan,
I think where we left off was in the middle of separation of powers, and the next case that
you were going to talk about was the Sentencing Guidelines case.
MR. MORRISON: I’ve discussed how cases came to me in the past. This one came an
even different way. I was sitting in my office one day and I got a call from then-Circuit
Judge Stephen Breyer of the First Circuit. Judge Breyer and I knew each other from my
having taught at Harvard and also from his being down here working for Senator
Kennedy. I was part-time teaching at Harvard in the January terms for a number of years
when he was back there after he finished up with Senator Kennedy. We used to have
dinner together and go running in the January weather in Cambridge and I would see him
at the Administrative Conference and other things. We became friendly and have
continued to be friendly.
Anyway, he called me up and he said he’s been asked to join something called the
Sentencing Commission, and I said, “Oh, yeah, I heard about that.”
He said, “They’re getting started and people want to hold meetings in secret.” He said,
“You know about that stuff. Can they do that?”
I said, “Well, it’s got to be subject to the Federal Advisory Committee Act.”
He said, “No, no, it’s not an advisory committee because it’s not giving advice, they’re
actually going to write the sentences.”
I said, “You’re going to do what?” I said, “Who is on this commission?”
He says, “Well, there’s a bunch of federal judges and some other….”
I said, “There’s what!?” I said, “You can’t do that.”
He said, “I don’t want to know about that. All I want to know about is secrecy.”
I said, “Well, you are right. It doesn’t sound like….”
He said there was a specific exemption from the Federal Advisory Committee Act.
And sure enough, it was right.
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MR. MARCUS: In the statute?
MR. MORRISON: In the statute as I recall. They—and it was clearly not an advisory
committee although they were presidential appointees, which would have made it not an
advisory committee. I said, “That just can’t be right.”
He said, “Well, okay, all right….”
So they proceeded. I went and got the statute and started looking at it and I saw two
things. One is that the commission had been given enormous discretion. In fact, much
more than the discretion in Gramm-Rudman. While there were pages in the statute which
said you could take this factor into account, not that factor into account, in the end there
was essentially open-ended discretion to do whatever they wanted. I had always thought
that the sentencing guideline idea was a sensible idea as a guideline to rein in judges. My
own feeling had always been that white-collar criminals had not been sufficiently
sentenced and if you stole a welfare check from the Post Office for $250, you went to jail
for a few years. If you stole $250 million in an antitrust violation, you didn’t go to jail. It
seemed to me there was no effort to try to do anything about that or about the interDistrict discrimination—because it’s probably the right word—especially with regard to
minorities, on sentences.
Even within Districts, you had some judges who were known as very harsh sentencers.
The idea of controlling it at least to some extent has always appealed to me. But when I
saw how little guidance there was—
MR. MARCUS: In the statute.
MR. MORRISON: In the statute, yes. I suddenly realized that three members of the
commission were judges—
MR. MARCUS: Appointed by the Chief Justice?
MR. MORRISON: No, they were actually appointed by the president.
MR. MARCUS: Ah.
MR. MORRISON: My recollection is that the Chief Justice may have suggested some of
them.
MR. MARCUS: So all the members were appointed by the president.
MR. MORRISON: By the president, yes. That was essentially necessary to avoid the
Appointments Clause problem. Then there were four of these other people who were all
sort of pro-government, pro-sentencing kind of people. I said this can’t be right because,
among other things, it did not provide for congressional review except in a cursory way
of not passing a law to overturn them. My concern was Congress didn’t have to
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approve—no congressional approval. It seemed to me that Congress could have easily
provided that they would approve it, perhaps on an up-or-down vote and no amendments,
but they could approve it. This was very troubling to me because I realized that these
were really quite political decisions.
MR. MARCUS: Do you think that the Congress made a conscious decision to wash its
hands of it, that it didn’t want the political accountability of approving the Sentencing
Guidelines?
MR. MORRISON: I’m sure. This was consistent, remember, with what we had seen in
the legislative veto and Gramm-Rudman and so forth and so on. The second thing about
it was that originally the proposal was going to put the Sentencing Commission in the
executive branch. That’s what the Justice Department wanted. Senator Kennedy, I think,
and others said, “That’s not going to happen. We can’t let the prosecutors determine the
sentences because that would raise serious separation of powers problems. Besides, even
if it wouldn’t be unconstitutional, it would be very unwise.” We certainly didn’t want to
do that. So they assigned this to the judicial branch of government. They gave it staff and
money and told them to go out and do sentencing; make justice. It was an enormous
delegation of what I saw as a core congressional function; judges in the past had been
doing retail sentencing but never wholesale sentencing. It was all individualized and it
seemed to me to be fundamentally wrong, that judges should stay out of this and it was
inconsistent with the separation of powers. The delegation was extraordinarily broad and
together the two of them were just really wrong.
MR. MARCUS: Did you tell your friend, Judge Breyer, this?
MR. MORRISON: Not right away. I’m sure I told him along the way. When I got off the
phone with him I, of course, had looked at the statute. It had been passed as part of a very
large Omnibus Crime Act of 1984. This was a significant portion and since I didn’t do
principally criminal law work, almost none, in fact, it wasn’t something that I would have
paid attention to. We started poking around and the first question was how we could get
this into court. If we thought the whole thing was unconstitutional, it needed to be
adjudicated promptly. My thinking was, two things: number one, if you did it on an
individual basis, it could take a very long time, number one. You have to find somebody
with an illegal sentence. The second is, in these kinds of cases, momentum often matters
and if a law stays in effect for a while, judges don’t want to overturn it. They sort of say
everybody is sort of working with it and living with it. This was actually a law which, it
turned out, I was wrong about those things because the judges hated it. The more they
saw it the more they hated it. Somebody once said to me—I think it was referring to the
District in Colorado—Denver—he said, “The Sentencing Guidelines are the only thing in
the world that could ever unite district judges, prosecutors and defense counsel.”
Actually my own view was that the prosecutors liked it because it changed things from
plea-bargaining to charge-bargaining. They were able to do that. Be that as it may, that
wasn’t what I was all concerned about. The first thing we tried to do was we tried to
bring an anticipatory action here in the District of Columbia on behalf of the Public
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Defender Service of San Diego, who represented all sorts of people. They said, and
absolutely correctly in my judgment, here we are—we don’t know what to advise our
clients about whether this is constitutional or not. Every day we are faced with this. If it
is constitutional, I’ve got to tell them to do one thing. If it’s unconstitutional, I’ve got to
tell them to do another. We have a real need and the clients have a need and we
can’t—you can’t get the clients in because they haven’t been charged and
convicted—some of them haven’t committed the crimes and this is a perfect kind of
thing. Sort of like the doctors in Roe v. Wade and other third-party standing cases.
So we brought the case and we ended up before Stanley Sporkin and he said, “No.”
MR. MARCUS: Even Stanley Sporkin?
MR. MORRISON: Even Stanley Sporkin. He said, “Just wait. There will be plenty of
cases.” And sure enough, there were plenty of cases. My colleague, Patti Goldman, and I
were working on this together, and since I had done a lot of separation of powers cases
before this, we were the recognized experts. We started franchising (not literally, but…)
our brief. We got calls to come out and argue cases. We were involved in some of them
here. I remember being called to come out to San Diego where the District Court sat en
masse, but not en banc. That is, there were twelve judges and they apparently all agreed
among themselves that they would hear it, they would vote and everybody would follow
what the majority said because—it was a very sensible outcome because they didn’t want
to be in a position where they were—everybody was going to have to keep reviewing
them and be gaming the system. So that everybody knew, kind of the same point I was
making before about this, and we argued a bunch of those cases there and I remember
going to Wichita and Patti went, I think, to Michigan and the Second Circuit. We had a
couple in the District of Columbia. They were all over the place because it was an
immediate need. They applied to crimes committed after a certain date and these cases
were moving right along.
MR. MARCUS: So it was an unusual situation where you couldn’t really pick the
District or the Circuit that you wanted or control the course of the litigation.
MR. MORRISON: Had no control.
MR. MARCUS: It was coming up in dozens of places but you put yourself in a position
where you played a key role in sort of coordinating the litigation strategy around the
country. Is that a fair characterization?
MR. MORRISON: I think that’s right. We had all these cases in the District Court and
one—it may have been more than one case, but one case got to the Ninth Circuit and I
was asked to argue the case and did. Alex Kozinski was on the panel and he agreed—he
was all over this thing. He agreed with us completely and he ended up writing an
extremely favorable opinion which had no influence on the court whatsoever.
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MR. MARCUS: No influence on the Ninth Circuit or no influence on the Supreme
Court?
MR. MORRISON: On the Supreme Court.
MR. MARCUS: Oh, you mean for the panel, yeah. He wrote the opinion for the panel.
MR. MORRISON: He wrote the majority opinion. I think it was a 2-1, but I can’t
remember for sure. In any event, meanwhile, a couple of other cases came up in the
Eighth Circuit and the government came to me and said, we would like to ask for
certiorari in advance of judgment; that is, before the Eighth Circuit heard this case, we
need an immediate review in the Supreme Court.
MR. MARCUS: Why didn’t the Ninth Circuit case go up before that?
MR. MORRISON: I don’t think the Ninth Circuit case had been decided by then. It was
argued before the government decided in the Eighth Circuit to take that case up. I think it
was sort of a question of inertia that they suddenly realized at some point that this thing
was getting completely out of control and they had to get up there. It was going on in
every District in the country and every criminal case and they had to know what the
answer was.
MR. MARCUS: And they weren’t winning all the cases.
MR. MORRISON: Oh, they were not winning all the cases because the closer we got to
the trial judges, the happier they were to accept our arguments. And we knew this. They
were all unhappy about their discretion being taken away from them and they felt very
bad about having to sentence people, as under the mandatory minimums, to far greater
sentences than they thought were justified and they felt they were hamstrung.
MR. MARCUS: Was there also sort of an esthetic objection as judges, to having to go
through this maze with this grid of all these factors, and so on, adding up the points and
so on?
MR. MORRISON: I didn’t get that sense. They had the parole—no, the probation
officers—do that in the first instance.
MR. MARCUS: I see.
MR. MORRISON: I think most of the cases we saw at the beginning were relatively
simple cases, and the Guidelines became more and more complicated as they got more
and more developed.
You have a choice of either—in these situations like this, you have simplicity versus
fairness and they pull in opposite directions. The more you try for fairness, then it
becomes more and more complicated. It’s inevitable. Like the Tax Code.
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Anyhow, so the government asked for and we consented to have certiorari in advance of
judgment. So the Mistretta case, which was neither particularly good nor particularly bad
on its facts—I don’t even remember what they were and they seem to be of no great
moment. It was not a case in which the Guidelines had changed prior practice very much
in either direction.
More importantly, it was the kind of case that everybody understood that it wasn’t about
just this case and the facts were not as dramatic as Chadha—five out of 339 people
getting vetoed. Everybody also knew that this was not about whether Guidelines were a
good idea or a bad idea. It was about how, in our system of separation of powers, they
ought to be handled.
We wrote the briefs and I’m quite sure that I argued first in the Supreme Court. Oh,
meanwhile—I forgot a really important point, although it is reminiscent of what
happened in Gramm-Rudman. The Justice Department came in and defended the statute.
We had two claims: undue delegation and separation of powers. The government
disagreed with us on undue delegation, said it was a perfectly proper delegation. Then it
said, “Even though the statute says that this is part of the judicial branch, that would be
unconstitutional and, therefore the Court should treat this as part of the executive
branch—and that it is perfectly permissible to have it in the executive branch and there is
no problem delegating to the executive branch and, for that matter, for federal judges to
sit in the executive branch to do that.
MR. MARCUS: So the government argued that the statute should be sustained on the
fiction that because it was an executive branch function, that the Sentencing Commission
should be deemed to be in the executive branch even though Congress said it was in the
judicial branch. And do you think they thought that if that were the case—under the
unitary executive theory, if it was in the executive branch, the president could tell the
commission what to do?
MR. MORRISON: Well, only to the extent that the Humphrey’s Executor case is no
longer good law, because it would be an independent part of the executive branch.
MR. MARCUS: I see, yes.
MR. MORRISON: Rather like the FTC or the SEC. And they were prepared to say that
was all right and the Independent Counsel case was going on at the same time. The
Independent Counsel case actually was decided in July of ‘87, no ‘88, and Mistretta was
argued the following October. So there was a lot of question about that, which I’ll get to
in a second.
Anyhow, the Sentencing Commission then hired its own lawyers. The solicitor general at
the time was Charles Fried, who had been at Harvard when I was there, although I didn’t
have him. I knew him from when I had taught there. The Sentencing Commission then
hired former Deputy Solicitor General Paul Bator, who had been my Civil Procedure
teacher and who was then at Harvard—or was he in Chicago? He went to Chicago—he
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may have been in Chicago by that time. Anyway, Paul argued for the commission. The
commission said, “No undue delegation. No, it’s in the judicial branch”—
MR. MARCUS: But that’s okay.
MR. MORRISON: And that’s okay. Judges can do this. There is nothing that prohibits
judges from doing this. I remember the conversation I had with Paul about whether the
Sentencing Guidelines were substantive or procedural and I said if they were substantive,
they can’t—this is—
MR. MARCUS: It’s legislation.
MR. MORRISON: Legislation, they’re doing legislation. And he said, “I thought I taught
you the difference between substance and procedure in civil procedure.” I said, “You did
and that’s why I have this claim and not that claim.” So we had a nice back and forth
about that on the case. We had done several of these in other courts, but we went to the
Supreme Court and argued. There was a three-part argument in the Supreme Court. Even
though the government had petitioned in advance of certiorari, I was considered to be the
petitioner and I think I said to them I should go first because I was challenging the
statute.
MR. MARCUS: You were the challenger, yes.
MR. MORRISON: Challenging the statute in terms of writing the briefs and everything
else and everybody reached agreement that that was a more sensible way of doing things.
Since we all knew each other and nobody was trying to get any advantage, it just didn’t
make any sense for them to write a brief explaining why an argument that I hadn’t yet
made was wrong.
For the only time that I’ve every argued in the Court, I got to argue for ten minutes
before anybody interrupted me. I began, as I recall, by saying that this statute is
unconstitutional and is a violation of undue delegation and separation of powers. In order
for me to explain why that is so, I need to explain in some considerable detail what the
statute does and what it doesn’t do. So I went through an elaborate description of how the
statute actually worked in practice and how much discretion they had in it to illustrate the
point. There was much discussion about the three judges who were on the commission,
what capacity they were sitting in. They said, well they are sitting as individual judges.
They are not sitting—they are not courts, they are not acting as courts, they are sitting as
individual judges. My argument was you are a judge twenty-four hours a day. You don’t
change your stripes when you are off it. So I said you are a judge and courts don’t decide
cases, judges decide cases. Chief Justice Rehnquist said to me, “Mr. Morrison, that sort
of sounds like the argument that guns don’t kill people, people kill people.” And I said,
“Precisely.” And he looked at me and I don’t know whether he didn’t get my point or he
didn’t accept my point, but my thinking was that was just as much a fable in this area as
it was in the area in which he had given. In fact, I had sort of anticipated that as a
question—as a response. He didn’t get my point and—or at least I didn’t get his vote and,
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in fact, I got only one vote and that was Justice Scalia, who had been the dissenter in the
Independent Counsel case. Justice Blackmun wrote the opinion for the Court saying, no
undue delegation. He said, there are pages and pages of descriptions thou shall and thou
shalt not, to which my answer always was, “Yes, but it gave you so much leeway to do
essentially anything you wanted to do that it didn’t confine you at all and didn’t tell you
how to answer any of the difficult questions.” This was a real abdication situation again.
That was the end of that, so to speak.
MR. MARCUS: Had you—I remember being surprised that the Court which had been so
tough on separation of powers in the Gramm-Rudman case sort of overwhelmingly voted
to sustain both the Independent Counsel statute and the Sentencing Guidelines. Were
you—going into this—were you surprised by the decision or were you sort of worried
about it because of what had happened in the Independent Counsel case?
MR. MORRISON: I thought that the Independent Counsel decision was justifiable
because judges were doing nothing more than what they had been explicitly authorized to
do in the Constitution—appointing officers—and that there was no interference with the
executive branch. There was, of course, no delegation problem as well.
MR. MARCUS: That’s right.
MR. MORRISON: The judges weren’t doing anything inappropriate. They weren’t
running the investigations. The other side, of course, said, in Mistretta well this sort of
shows that this is a pragmatic court and they are into pragmatism and they are away from
formalism which I always thought was a sort of a misguided argument. My own view of
the legislative veto case is we won that because the Court understood what was at stake
and was not about to have the Congress run the executive branch of government.
I am convinced that we lost Mistretta, the Guidelines case, because the judges said, well
these are judges, they don’t do anything improper. We’re judges.
MR. MARCUS: They are our people.
MR. MORRISON: We know them, they’re just doing their job and it would never
influence them in their other work, the fact that they sat on the Sentencing Commission.
MR. MARCUS: We know these guys, yes.
MR. MORRISON: And it’s not inappropriate. Judges do all kinds of things, some of
which we like to do and some of which other people like us to do. Congress could make
this decision to allow the judges to do all this.
That was the tone of the opinion. Justice Scalia writing in dissent referred to the
Sentencing Commission as a “Junior Varsity Congress.” They’re doing exactly what
Congress does except that they are not elected. Of course, he was right about that. By the
way, I guess I felt worse about losing that case than I did about losing almost any other
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case that I did because I thought it was so wrong as a matter of principle, so unnecessary,
that Congress could have and should have been willing to take this advice and pass on it,
that they really needed to give more guidance and that judges really had no business
doing this. They were co-opting the judges to join the majority of non-judges—or maybe
it was a majority of judges—I can’t remember now. In any event, I felt that they were coopting the judges to get them to be on board, to give the outcome a veneer of
respectability that would not have happened if they had been all appointed by the
president from the executive branch or from outside the government. And, of course,
there were thousands and thousands of lives—not literally—at stake because the death
penalty was not part of the Guidelines.
One of the things I argued was—Brennan and Marshall were still both on the Court at the
time—and I argued that they could—that the way the statute was written, the commission
could re-impose the death penalty if they wanted to. They said, we don’t have to reach
that question because they haven’t tried to do that yet.
MR. MARCUS: I think you’re right that one of the things that was at work in this case
was a gut feeling that, gee whiz, this is kind of a natural thing for judges. They’re the
experts on sentencing and what’s the big deal about letting them do it. But do you think
that they might have felt differently if any of them had ever been a federal district judge
or a trial judge and had to engage in sentencing? In other words, then they might have
been influenced by their horror at the idea of binding sentencing rules depriving district
judges of their discretion?
MR. MORRISON: I don’t know. Surely the reaction among district judges was very
strongly against. Part of it is, of course, what all of us find is when somebody imposes
change on you, your first reaction is to say, “No.” We resist change. The old system was
okay. Leaving that aside, I think there was genuine concern and it became more so as
people saw more and more cases in which the Guidelines really didn’t fit. Judges were
personally anguished and offended by having to impose sentences that they thought were
unjust.
MR. MARCUS: You didn’t have the crack cocaine/regular cocaine issue at that time,
right?
MR. MORRISON: No, but there were other minimum mandatories already in existence.
Now speaking of delegation, actually there was one additional case which I’ll just
mention briefly. This was the pay case.
MR. MARCUS: Judges’ pay?
MR. MORRISON: Judges’ and everybody’s pay. Again, the Congress couldn’t deal with
the problem so they appointed a commission. The commission made recommendations to
the president and the commission could do anything—they could make any
recommendation that they wanted and the president could do anything he wanted with
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that recommendation. He could go up or down—except for judges. He couldn’t take
them down because Article III forbids pay reductions for judges. Everybody else could
go up or down by any amount they wanted, had nothing to do with anything that they
wanted to do. If there was ever a case where this was done for political reasons because
the Congress didn’t want to do it, this was it.
MR. MARCUS: Where the delegation was done for a political reason?
MR. MORRISON: Delegation—absolutely, clear abdication of responsibility. Somebody
else brought the case—
MR. MARCUS: But it was a way to get pay raises for people.
MR. MORRISON: Absolutely.
MR. MARCUS: So—
MR. MORRISON: So nobody had to vote on it.
MR. MARCUS: All the government officials thought this was a great idea because
Congress could never bring itself to vote for a pay raise because of the political
consequences.
MR. MORRISON: And so did The Washington Post and The New York Times.
MR. MARCUS: It was a good government thing.
MR. MORRISON: A good, good government thing, yes. The fact that it was completely
abdicating responsibility was my problem. I didn’t get in the case at the trial level or at
the Court of Appeals level. I was asked to file the cert. petition.
MR. MARCUS: And this is—if I can interrupt—this is a good example of how, I think,
you and Ralph Nader, but especially you—
MR. MORRISON: Well, part of this was because Ralph was really unhappy about the
pay increase.
MR. MARCUS: Oh, I see. I was going to make the opposite point that this was an area
where you got free rein to pursue your conceptual separation of powers agenda without
regard to whether it was something substantively that Nader was interested in. But he
was interested? He thought federal employees made too much money?
MR. MORRISON: No, he thought that Congress should vote on it.
MR. MARCUS: Oh, okay. He just believed in the separation of powers and political
responsibility.
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MR. MORRISON: For example, the Sentencing Guidelines, although he agreed with me
about white-collar criminals, he had no special interest in sentencing policy or other
things like that.
MR. MARCUS: But he really believed in this separation of powers stuff.
MR. MORRISON: Oh, absolutely, absolutely. So we filed a cert. petition in the pay case,
and we said, in essence, if this isn’t undue delegation—because there was not a sentence,
a word, about what the standards were, just what ought to be done. It is the essence of
legislation. I got no votes on the Court. It was at that point that I conceded that the
delegation doctrine was dead. I think that if we had gotten that case up before some of the
other ones, they might have balked at some point. But having gone through GrammRudman and Mistretta, especially, they weren’t going to be concerned about it. Among
other reasons, because about this time Congress had basically bailed out on this and it
wasn’t clear they were going to try to do it this way anymore. There were also some
standing questions—there might have been standing questions ultimately.
MR. MARCUS: You also had a lot of bad Supreme Court precedents.
MR. MORRISON: Yes, yes, of course.
MR. MARCUS: You have the World War II cases on price controls and so on, which
approved delegations to the president without any standards of law.
MR. MORRISON: No, they had standards.
MR. MARCUS: Well, very vague.
MR. MORRISON: Yeah, but you could tell what they wanted you to do. You could tell
what they wanted you to do. Here they could have done anything. This is a case where
they could have gone up or down. They could have given raises to some and not to
others. They could do anything they wanted to do. It seemed to me to be completely
unprincipled, but that got me nowhere.
What I now do is when I teach Administrative Law, I have the delegation cases in the
book and then I give them the Pay Act and I say to them, “Is this constitutional, why?
And if not, why not?” That’s when we get through and say, look, it’s effectively the end
of the delegation doctrine. There is no undue delegation save, if they tried to do it to
private parties—after all, Schechter Poultry was a delegation to private parties. There is
also an Appointments Clause argument with respect to private parties as well.
So that takes us through Mistretta. About this time, the Congress had decided that it
needed to do something about the Washington metropolitan area airports. The
Department of Transportation made a recommendation to create a separate Airports
Authority.
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MR. MARCUS: What was the status before this legislation? They were just owned
directly by the federal government?
MR. MORRISON: By the federal government.
MR. MARCUS: All three airports?
MR. MORRISON: Yeah, and they were under the jurisdiction of the Transportation
Department. It didn’t make any sense.
MR. MARCUS: When I say “all three,” I guess it’s just two, right?
MR. MORRISON: No, Baltimore.
MR. MARCUS: Baltimore, as well. Is owned by the United States?
MR. MORRISON: Well, no, I may not—
MR. MARCUS: I don’t think so.
MR. MORRISON: I may be wrong about that. I may be wrong about Baltimore.
MR. MARCUS: Yeah.
MR. MORRISON: As part of the Compact with the three states, they all came together in
these three airports. The concern was that Congress was willing to let go of them, but it
wasn’t willing to let go of them completely. So it created this Airports Authority with
multistate membership and then they provided that the rules of the commission, the
Authority—very significant matters—could be disapproved by a board which was
composed of eight persons appointed by the Congress. They didn’t have authority to do
anything, they had only authority to stop things from happening.
MR. MARCUS: Presumably to protect federal interests? That must have been the theory.
MR. MORRISON: You got it. Federal—translated “congressional.”
MR. MARCUS: Parking spaces.
MR. MORRISON: Parking spaces—among other things, to which cities you could fly
out of from which airports.
MR. MARCUS: Ah, yes, yes.
MR. MORRISON: All the things that really matter in life. And the eight people
appointed by Congress were, as I recall, four sitting members of Congress and four
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former members of Congress, all of whom having some connection with the
Transportation Committee from which this bill came—came out of.
MR. MARCUS: And the Authority that was created was, in theory, not part of the federal
government?
MR. MORRISON: No, it was created as an Interstate Compact. It had to be approved by
the federal government under the Compact Clause and it was subject to the federal
statute, but it was not a federal agency. I read about this in the paper. I said, “They can’t
do that.” And sure enough, we found a group of citizens headed by—John Hechinger was
one of the lead plaintiffs. They were concerned about aircraft noise and they were fearful
that—Hechinger at that time (he died a few years ago) was living on—near Chain Bridge
Road, in the Wesley Heights area where the planes came by on a regular basis. They
were fearful that there would be more and more planes come in, there would be more
inconvenience. And so we brought suit and, in fact, the Congress had vetoed one plan
that would have been helpful to the citizens in terms of keeping down the noise. It was
Citizens Against Aircraft Noise v. Metropolitan Washington Airports.
MR. MARCUS: And you were trying to knock out only the provision for this board. You
weren’t trying to knock out the whole Compact.
MR. MORRISON: No, the Compact was perfectly valid. We just said that the board
couldn’t do this. The Justice Department agreed with us and came in on our side.
The board, I think having no real practical choice, had to defend the law—they hired Bill
Coleman to represent them. My colleague, Patti Goldman, was in charge of the case and I
worked with her, of course. We brought this case and we won it, and we won it in the
Supreme Court six to three, I think, saying that Congress couldn’t do indirectly through
the creation of a private board what they couldn’t do directly, which is the legislative
veto. They had no more authority to override rules this way than they did another way.
MR. MARCUS: Did you argue the case in the Supreme Court?
MR. MORRISON: No, Patti did. And then—so they came back and Congress wouldn’t
give up. They gave the board the authority to delay rulings. We went back to Court again
and—
MR. MARCUS: What was the theory of that, that they could delay it so that Congress, if
it wanted to, could pass a statute?
MR. MORRISON: Right. And we said, “Congress can pass all the statutes it wants. It
can set as much time as it wants, but it cannot have a positive effect on the course of
legislation—on the course of rules that are put into effect. It has no power to do it.” The
fact that it wasn’t a federal agency didn’t matter because Congress’s powers were limited
to lawmaking and this was not lawmaking because it didn’t go through the bicameralism
and presentment provisions. The D.C. Circuit agreed with us again and the Supreme
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Court denied cert. And that was the end of it. They walked away and now the Airports
Authority is operating independently, as it should.
MR. MARCUS: Who did you lose? What three votes did you lose in the Supreme Court?
Do you remember?
MR. MORRISON: No. Probably Justice White.
MR. MARCUS: Yes. He thought all these things were okay.
MR. MORRISON: It may have been Rehnquist—I don’t remember.
MR. MARCUS: Well let me ask you this, Alan, I’d not remembered this case. It’s very
interesting and a good victory. I’m interested in the second one because, as you probably
know, Congress has passed a statute that is in effect that requires that all major federal
rules be delayed for a period and reported to Congress. It’s a delayed effective date. It’s
not real long but it is designed to give Congress an opportunity to review the reg and pass
a statute throwing it out if they want to, which they’ve only done, I think, once or twice.
MR. MORRISON: The only time I know was the repetitive stress rule.
MR. MARCUS: That’s right. That was the OSHA rule in the beginning of the Reagan
administration.
MR. MORRISON: Bush.
MR. MARCUS: Bush administration.
MR. MORRISON: Bush II.
MR. MARCUS: That’s right and they threw it out.
MR. MORRISON: Perfectly constitutional.
MR. MARCUS: It’s different? What’s the difference?
MR. MORRISON: The difference is that it is automatic and in the statute and no
independent congressional board is doing the change. And we said if you want to make
everyone subject to delay (which, of course, they wouldn’t do because there were lots of
things going on), they needed to pass rules all the time and they couldn’t do it. The
statute you refer to refers only to major rules and—
MR. MARCUS: That’s right. It’s turned out pretty much a dead letter in the sense that
Congress hasn’t interfered with—except for the OSHA Repetitive Stress Rule.
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MR. MORRISON: The reason they were able to do it there was because you had changed
the presidency and Bush willingly signed it into law. Clinton would have vetoed it, and
there never would have been enough votes to override a veto so it’s only useful in an
extreme, extreme case or at the time of the transition.
MR. MARCUS: Okay. So are we ready for the line-item veto?
MR. MORRISON: We are ready for the line-item veto. I had been well aware of the lineitem veto for many years and always thought it was an unwise idea, both because I didn’t
think it would do much to control spending and because I thought it gave the president
much too much power to be able to destroy political compromises and really tilted
everything against the Congress. For years the Congress, at least the majorities, thought
the same. They would never give a president the power. There was always a major
constitutional question because the line-item veto literally, as even the proponents of the
law that passed admit, is, if carried out literally, unconstitutional. The president does not
have the power to pick and choose. He must either sign a bill or veto it. Nobody
contended the opposite. In the forty-something states where there is a line-item veto,
every one of them has a specific provision in the state constitution allowing the veto.
MR. MARCUS: And we don’t worry as much about the power of a governor as we do
the power of a president.
MR. MORRISON: And there are other things. They’ve got balanced budget
requirements, and all sorts of other things that operate differently. They have different
kinds of borrowing authorities; it’s quite different than the federal government. They
don’t wage war, have national debts and ditto with international finance and so forth.
Along about 1995, as part of the Contract with America (or “on America” as it is often
referred to), in addition to the Balanced Budget Amendment which I talked to you about
last time, there was the line-item veto. Clinton, like every president before him,
supported the line-item veto. The Republicans were in the ascendancy—they always
thought it was a good idea.
MR. MARCUS: Reagan had made a big issue of it, as I recall. He wanted it. Because he
had had it in California.
MR. MORRISON: Yeah, he liked it. Why wouldn’t you like it if you’re the president?
There’s nothing not to like about it, which was sort of like the legislative veto; for
Congress, it’s the same thing. The parallels are really quite uncanny.
The Democrats were saying, as we talked about in the Balanced Budget Amendment,
“Stop me before I spend again.” We absolutely have to have it. It’s the only way we’re
going to get control.
MR. MARCUS: And their guy wanted it.
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MR. MORRISON: Their guy wanted it. So for the first time—
MR. MARCUS: That’s right. The stars were aligned.
MR. MORRISON: But not quite, because the Republicans, as a condition of this, made
the veto not effective until January 1, 1997, because they thought that they had a chance
of recapturing the presidency and they didn’t want to give Clinton anything, especially in
an election year. The Democrats, of course, had no way to stop that from happening.
They were prepared to concede that but it wasn’t necessary. So there were various
proposals in the Congress and no one really thought that the little line-item veto would
work. There were various alternatives proposed, none of which were, in my judgment,
constitutional. They finally settled on the one in the bill.
Interestingly, there had been a lot of constitutional discussion but there was no discussion
about this particular one and why it was constitutional, except for the most cursory
matter. I think in the end people didn’t really care. They just were going to pass
something. Senator Byrd fought mightily to oppose it. He was the leader in the Senate.
The House was, at this time, Republican and they just rolled it through. They didn’t have
any debate or anything like that.
MR. MARCUS: For the record, I don’t know if you are going to do this, but why don’t
you tell us what the particular mechanism they came up with was.
MR. MORRISON: Okay, sure. The mechanism was that the president would do what the
Constitution requires, to sign the bill into law. Then he had a period of ten days in which
he could submit a rescission message. The rescission message under which he could
identify any separate items of spending, and that meant that they had to be separated
someplace in the statute or, I think, in the legislative history also. It was also applied to
tax expenditures, but in a very limited sense and it was only with respect to new ones and
only if they met certain qualifications. This was a necessary concession because
everybody who understood the first thing about it understood that tax expenditures are
the same as appropriation expenditures. They are actually worse because they are hidden
and they don’t come up every year.
So they passed this bill, and the president had to make three findings. First is that the
rescission item would reduce the deficit. Second, that it would be not harmful to the
national interest, and third, it would be in the public interest. Which meant he could do it
whenever he wanted to. There was no question that he could do it whenever he wanted
to. There were no criteria whatsoever. He would send the rescission message back and
Congress would then have an opportunity to override the veto—the line-item veto.
MR. MARCUS: But did he then have to sign the overriding legislation?
MR. MORRISON: Yes.
MR. MARCUS: That was what the proponents thought made it okay, right?
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MR. MORRISON: Yes. The trouble was, of course, that it shifted the balance of power
and it now meant that Congress had to get two-thirds to override a line-item veto as
opposed to two-thirds to override a bill veto. That gave the president enormous additional
power. We thought it was unconstitutional.
MR. MARCUS: Did you or Public Citizen participate at all in the legislative process on
this statute? Did you testify and say this is a terrible idea?
MR. MORRISON: Yes, I’m pretty sure I did testify and said it was unconstitutional and
a violation of separation of powers. We also recommended and drafted a provision for
expedited judicial review for the reasons that I’ve discussed before. We also provided
that members of Congress—
MR. MARCUS: Could have standing?
MR. MORRISON: And we thought that this was the best case for congressional standing
because the members were really being interfered with in their jobs. They could no
longer make a binding bargain—I’ll give you this and you’ll take that.
MR. MARCUS: Yeah.
MR. MORRISON: And the president could go and destroy it. It created all the incentives
in favor of the—everything went in favor of the president. It made it much more difficult
to compromise. It made it much more difficult to be able to negotiate with the White
House about anything because they had this absolute power to veto for any reason or for
no reason or for the worst possible reasons.
Senator Byrd understood all that, but he also understood this was a matter of Congress as
an institution. Senator Moynihan, Senator Levin and I’ll think of the fourth Senator. We
had somebody from the House of Representatives as well. We did not get any
Republicans, which saddened me. I thought we had a chance at a couple but they decided
not to come on. So we brought suit before the statute was in effect saying we had to
essentially know. The standing provision said they could pursue it immediately. There
were two separate ripeness problems on that. One was that the statute was not literally in
effect. There had been no vetoes. The president didn’t have the power—it was signed
into law in late ‘95 and we brought the suite in early ‘96. There had been no vetoes.
MR. MARCUS: But your theory was that the legislative process was already
being—appropriations process was already being affected by the existence—the specter
of the line-item veto.
MR. MORRISON: And that nothing would happen between now and January 1 ‘97 that
would change anything.
MR. MARCUS: That’s right.
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MR. MORRISON: All these people were still going to be in Congress and the president
was going to still have the power and so forth and so on. And that Congress had
specifically said, “bring it now,” because they wanted to know what the answer was.
So we brought a lawsuit and we worked with a lot of other people, Lloyd Cutler and Lou
Cohen from Wilmer. Mike Davidson, the former Senate Legal Counsel, and Chuck
Cooper who had been OLC in the Reagan administration—someone who I’d gotten to
know and had gotten to like a lot and work with. We had some differing views on many
things but by no means on all things. We put together quite a good team. We roared
through the District Court. We drew Judge Thomas Jackson. Jackson has had a mixed
record on the court. Some good things, bad things; he had a reputation of not always
being the fastest judge in town. He got on this case and he rammed it through and wrote a
really good opinion in which it was—the one thing that’s clear is he understood exactly
what was going on. He really understood the separation of powers problem. The case was
decided in early April, expedited judicial review. We got to the Supreme Court and it was
argued at the end of May.
MR. MARCUS: The expedited review provision—bypass the Court of Appeals?
MR. MORRISON: Because it was in the statute. We had actually suggested that the
Congress put a three-judge court in it and for reasons that I don’t remember they didn’t
do it. So it was a single judge up to the Supreme Court. Turned out to be fine for us. The
solicitor general was on the other side. I think the Senate—yeah, I think the Senate and
House filed amicus briefs or some people filed amicus briefs against us. They argued
standing. It was not an issue with the District Court because the statute said so and
because the D.C. Circuit had been receptive to congressional standing. But in the
Supreme Court they argued standing and, to a lesser extent, ripeness, so that was really
the question.
MR. MARCUS: I assume they also argued—they had to argue the merits?
MR. MORRISON: They argued the merits as well.
MR. MARCUS: They defended the statute.
MR. MORRISON: They absolutely defended it.
MR. MARCUS: And this was when Walter Dellinger was the SG?
MR. MORRISON: He was the acting solicitor general. I think this was his last argument
that he made in the Court at that capacity, then Seth Waxman took over after that.
We argued the case. I remember Senator Byrd said to me afterwards, he said, “Why don’t
they let you finish your sentences?” He said, “We would never let that happen.” I said,
“Senator, that’s the difference.”
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All the members were very much involved and they read the briefs and they came to the
argument. They cared deeply about this. They felt this was both bad as a matter of policy
and an affront to their offices. The case came down and we lost seven to two.
MR. MARCUS: On standing.
MR. MORRISON: On standing. Only Stevens and Breyer said we had standing. Souter
and Ginsburg said well, if there weren’t people whose projects were going to be vetoed
who would clearly have standing when the law becomes effective, we might view this
differently. And the other five, led by the Chief, said, no congressional standing. A very
significant decision.
MR. MARCUS: It put the knife in the back of congressional standing, generally.
MR. MORRISON: This was a really strong case for congressional standing; a very
important part that members could go in and sue. It was right in the statute, so all the
prudential reasons were set aside, there were clear injuries. We had the Adam Clayton
Powell case where he could sue for a job. At one point during the process I wanted to
make an argument and was persuaded not to make it. It probably wouldn’t have made
any difference. I would have said, “Suppose that the statute had said that members of
Congress have to pay a dollar if they vote against the override. Would that give them
standing because they had an economic stake in it?” And it was, no that’s just silly and
that—but, you know, if you read the opinion, that’s sort of what they say. They have no
stake other than their stake as members of the Senate. It seems to me fundamentally
wrong. I think that we probably went too far in some of these cases with congressional
standing. I don’t say I overreached, I took an opportunity get into court the issues that I
wanted and cared about. But to say that the Congress’s judgment about this is
unconstitutional because, in effect, they struck down the standing provision as violating
Article III; they declared the statute unconstitutional. People don’t think of it that way,
but that’s really what happened. We’ve got to argue that. I said, “You have to say this is
unconstitutional.” And they said, sure. Next case! They don’t care. So they then waited
around and the next year—in January, Clinton started vetoing some things. Cases came
up quite quickly again. I was not counsel of record in any of these cases, but I did file an
amicus brief on behalf of several of the senators supporting the challenge. The Court
ultimately ruled six to three that it was unconstitutional. The interesting thing is the split
in this case. The majority opinion was written by Justice Stevens, joined by Justices
Ginsburg and Souter. Justice Breyer dissented. Thomas and Rehnquist joined the
majority as did Kennedy. Justice Scalia dissented and Justice O’Connor dissented. So
you had people from all three wings of the Court in all—the center, the left and right on
both sides of the split. You had pragmatists O’Connor and Kennedy split. You had Scalia
and Thomas split and you had Breyer split from Ginsburg.
MR. MARCUS: Well for Scalia, it was a tension between his belief in separation of
powers and his zeal for executive authority.
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MR. MORRISON: Yes. And his dissenting opinion says, well there would be nothing
wrong with the president being delegated the authority in particular legislation, to not
spend as he wanted. He cites the old gunboat example in the War of 1812. We said, of
course the president doesn’t have to spend things on things that are plainly useless and
Congress would not have wanted to spend it. It doesn’t say anything about this here. And
no, we don’t agree the president could have the authority—could be given blanket
authority not to spend without any standards or qualifications. That would be improper
and it has never happened before. The big difference was between—again, the words I
used in the Mistretta case was “retail versus wholesale.” Somebody said, “Could you
give the president the authority not to spend money in a particular bill?” The answer I
gave—I think I was asked this in oral argument—is that would be a closer case, probably
constitutional because, in that case, you wouldn’t have a background statute as to which
you would have to negotiate against to get out from under the revision. That you
wouldn’t have to give up anything; the bargaining was on essentially even terms. In that
particular case you might be willing to say that Congress might be willing to do this as a
tradeoff in that particular bill. But for Congress to get that tradeoff now once the lineitem veto is in effect, you would, in essence, have to give up something more to be able
to do that.
MR. MARCUS: So in the Raines case, which you argued, although it went off on
standing, the argument did significantly deal with the merits as well.
MR. MORRISON: Oh, absolutely. Oh yes.
MR. MARCUS: Was it clear to you at the end of the oral argument that they were
unlikely to reach the merits and were going to knock you out on standing?
MR. MORRISON: I don’t think so.
MR. MARCUS: You must have been a little worried.
MR. MORRISON: Of course, every time the Court gets near standing I get worried. You
don’t have to be a student of the Court to know that. You have standing to lose. You
don’t have standing to win.
Now the other interesting thing was as the case materialized and as the president started
vetoing things, members of Congress started to sit up and say, “Well, I didn’t think he
was going to use it for that! It was supposed to be for waste. These are important
programs,” or, “This is a needed tax break” or whatever it was. “I would never have
thought that.” And so when the case was decided, one would have expected to see
constitutional amendments coming in. There was an initial flourish. I think actually John
McCain supported the legislative veto. I think he was one of the main supporters of
it—the line-item veto, excuse me. Nobody made any serious run at amending the
Constitution.
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MR. MARCUS: And there has been no really serious effort to pass another version of it
that might survive. You know, there are a number of proposals to jury-rig it in some way
that it might be okay. Bush, in a couple of State of the Union addresses, I believe, has
said he wants the line-item veto again.
MR. MORRISON: Yes.
MR. MARCUS: I think there have been some actual draft bills and I forget what the new
approach is, but it is one that some people think would pass muster under the Supreme
Court decision and other people think is hopeless. I take it, from your shaking your head,
that you think it is hopeless.
MR. MORRISON: I hope so. I don’t think they’ll get the support for two reasons. One is
members decided that they really didn’t like it very much and the very thing which made
it attractive to the president, which was to do whatever you want to do whenever you
want to do it, if you want to do it, is exactly what members of Congress got worried
about. The second thing is so long as we have anything resembling divided government,
nobody is going to want to give this kind of power to the other side.
MR. MARCUS: That’s right. I think the legislation was a political fluke in the sense, as
you said, the stars happened to be aligned with both the Republicans and the Democrats.
I think if Newt Gingrich hadn’t decided this was a good idea and made it part of the
Contract with America, it never would have happened.
MR. MORRISON: Yeah. And at the time the budget had appeared to be completely out
of balance and then we just turned around and we got the budget back in
balance—having nothing to do with the line-item veto. The other thing about it was it
never had potential for making big changes in the budget for two reasons. One is because
the big numbers were not in the items. Or they were in items which nobody was going to
touch.
MR. MARCUS: Like defense spending.
MR. MORRISON: Two bombers, yes. The irony was you had to veto all the B-52
Bombers, you couldn’t just veto one.
MR. MARCUS: You couldn’t just say one.
MR. MORRISON: You couldn’t say, “We’ll take two Bombers out of seven.” No, you
can’t do that. It was crazy in a lot of respects anyway and it was a foolhardy effort but
one that took on some seriousness and would have, like the legislative veto,
fundamentally altered the balance of power relationship between the Congress and the
president in exactly the opposite way that the legislative veto would.
MR. MARCUS: Let me ask you this. Obviously when you started out with your first
separation of powers case you had no idea this was going to be a major theme of your
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legal career. It is interesting. No one knew there were going to be all these separation of
powers cases in the ‘80s and ‘90s. It has now become a major subject of constitutional
law as a result of these cases. Did your litigating in this area affect the way you
approached your academic career, for example? Teaching Constitutional Law?
MR. MORRISON: Well, I’ve never taught Constitutional Law. I’ve taught
Administrative Law and I teach all these things.
MR. MARCUS: So you teach the Delegation Doctrine?
MR. MORRISON: Delegation and I teach Chadha. I tend not to teach Mistretta. When I
teach Chadha in the Breyer and Stewart book, which is the one I use, largely because the
first year I was teaching at Harvard, the book was in manuscript form and Dick
Stewart—I didn’t know what to do and so I said I might as well use your book and
maybe I can give you some ideas about using it when I get through with teaching. Might
as well buy a book for your friends as opposed to buying a book for somebody else. So I
continued to use that. The Chadha chapter and the pre-Chadha stuff was at the
beginning. I decided I would teach Chadha and presidential control of rule making at the
end, both as a review session and to understand the political science/administrative law
aspects as opposed to the constitutional aspects.
It is helpful to try to understand what those doctrines are trying to do in terms of control
of administrative agencies, which you can’t understand until you know what agencies do
and how they operate and how the courts proceed in the meantime in the ordinary cases.
So I teach those at the end in review. I don’t tend to teach the line-item veto case.
Actually, I do teach it in one respect. I teach it in a course that I have taught a number of
times as a result of a book that I edited, put together, while I was at NYU called
Fundamentals of American Law. It is a book for which I got the idea when I was in China
teaching at Fudan University. I went into the Law School library there and they had no
books about the American legal system. They had an old edition of Wigmore on
Evidence, Casner & Leach on Property, The Restatement of Torts, completely useless
things that there were—much too much detail and no understanding of how they had to
explain American law to the Chinese.
So I came back—this was in ‘89—and embarked on several years of trying to do this and
finally got an opportunity to do it when I was teaching at NYU. The book is published by
Oxford. I think it’s a very good book. I’ve had friends who are federal judges tell me that
when they got a new chapter area, somebody had a bankruptcy case, they didn’t know
anything about bankruptcy reorganization, they read the book and they got a good
understanding. Friends who are not lawyers have read the book. It was supposed to be
marketed principally abroad, but it never got marketed. It’s used significantly now here
in the United States—
MR. MARCUS: For foreign lawyers?
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MR. MORRISON: Foreign lawyers who are coming to the United States. I’ve taught it a
number of times. The book is not a casebook. It’s a readable textbook. I started, after a
while, using cases to teach. In part because students needed to see how U.S. law was
taught and partly because it just sort of brought some meat onto the substance. I use the
line-item veto case as an example of how flexible the Constitution is, and how matters of
policy affect it and what are reasons from one set of principles and another and how
everybody was looking at the same cases and coming up with different answers, how
they use analogies and how dangerous it is to put labels on Justices and expect to figure
out who is going to vote which way in which case.
MR. MARCUS: Let’s turn now to the issue of legal services. You came to Washington
and this was one of the things on your agenda.
MR. MORRISON: Yes. I was concerned about the availability and affordability of legal
services for ordinary Americans. I was concerned about a number of the practices which
seemed to me to be principally for the protection of the profession and not for the
protection of the public.
MR. MARCUS: And this was a natural issue for Nader, too. This was a major consumer
protection issue.
MR. MORRISON: Absolutely. We discussed this before I came down and this was an
area he and I agreed we should do something about. So the first set of these cases
involved the minimum fee schedules in Virginia. I had been aware that these were
actually going on and they seemed to me to be a violation of the antitrust laws. About the
time I arrived in Washington, a lawyer, who was then at the Federal Trade Commission,
named Lew Goldfarb, had bought a house in Reston, Virginia. As part of the contract for
the purchase of his home, there was a provision in there that said we (the developer)
recommend the use of A. Burke Hertz of Fairfax to be your lawyer for closing, and there
was a list of charges. He contacted Hertz, who gave him a set of prices, the principal one
being for title examination. There was a fee schedule and Hertz followed the fee
schedule. The fee schedule was one percent of the purchase price for the first $50,000
and a half a percent thereafter. In addition, there were also charges for other things as
well and the whole thing was like $750—at a time when house prices were selling in the
$30,000 and $40,000 range. So Lew decided he knew what was going on. He wrote to
thirty-five or more lawyers in Northern Virginia who did this kind of thing.
MR. MARCUS: This is before he talked to you? He did this on his own?
MR. MORRISON: On his own. He was a lawyer at the Federal Trade Commission. He
knew what he was doing.
MR. MARCUS: They all said $750?
MR. MORRISON: Everybody said, “I know of no one who would charge any less. We
are required by the Bar not to deviate from the schedule. It would be unethical to do
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anything like that.” And nobody—he got nineteen responses—and nobody suggested
anything other than non-deviation.
So he brought a lawsuit. He bought a home in Reston, Virginia, and this was all part of a
single development. He brought it on behalf of a class of about 2400 which, in many
respects, is a really good-sized class. It’s enough so that nobody thinks they should bring
individual actions and it is not so humongous that either it will break the bank or you
have manageability problems and they are all subject to the same set of facts and the
same location. And indeed in most of the cases, they all had similar provisions in the
contracts. What had happened was Hertz and the others gave the developer a good price
on their title examination when they bought it, with the understanding that they would
put his name in the agreement. And all he had to do was to do the update from the time
the developer bought the land until the developer sold the property. The amount of work
that had to be done was even less than usual. Lew brought this case. I think it was filed
just before I came to Washington in the beginning of February ‘72. A friend of Lew’s
had been at the Federal Trade Commission, named Mark Silbergeld, who was now
working for one of Ralph’s groups, introduced me to Lew and said we should talk about
the case and I was very excited about it. I agreed to help.
Lew wanted to do this case himself. How he was going to find time to do this when he
was at the FTC… Immediately they raised the question about can he be the class counsel
and the class representative at the same time. I said to him, “Look, you can’t do this.
We’ll take it over and you can continue to be involved with it.” So we took the case.
They sued the Virginia State Bar and they sued the Fairfax County Bar Association, the
Arlington County Bar Association and the Alexandria City Bar Association (the latter
three were all voluntary associations) and sought an injunction against the use of fee
schedules and money damages for the class.
The fee schedule system was adopted by the Virginia State Bar. They issued a report,
first in 1962 and then in 1969. One of the things about the case is this was proceeding in
Alexandria, we were going in a hurry and we went in a hurry in the Fourth Circuit. I
never really went back and looked at these reports to the extent that I should have looked
at them, probably. So I got to the Supreme Court and when I did, I re-read the Virginia
State Bar Fee Report. The Fee Report begins by the following statement: “Slowly but
surely, lawyers are committing economic suicide.” I began my oral argument in the
Supreme Court with that.
MR. MARCUS: With that quotation.
MR. MORRISON: The solution—minimum fee schedules. It was a lesson—an important
lesson I learned—even though I’ve been practicing law for a dozen years—no, less than
that at the time—that things which you read the first time, you don’t really understand
the significance of until you go back and see them in perspective. Statutes in particular,
but other kind of matters as well. The facts jump out at you in a way that they didn’t
jump out at you before. So the Bar said there should be minimum fee schedules but they
should be done on a local basis. The counties then—the various bar
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associations—adopted fee schedules and the Bar issued an ethics opinion saying it would
be unethical to routinely fail to follow them. Presumably if you had an exception for your
grandmother or something, you could fail to follow them. But if you routinely did so, that
would be considered solicitation or unethical. And we had proof that they were being
adhered to in Northern Virginia.
So we started the case, started moving along and the Bar started making motions and we
had a couple of depositions, not very much. Then over the summer the judge set a cutoff
on discovery. We were in the Eastern District of Virginia, Judge Albert Bryan, Jr. was
the judge, and he moved things along.
We had a very funny incident. We got assigned—or we thought we got assigned—to
Judge Orrin Lewis and Orrin Lewis was not likely to rule in our favor—but he also had a
problem. He had been the president, I think, of the Virginia State Bar or…but at least one
of the Bar Associations. His son was currently the president of one of the Bar
Associations. He had multiple other connections with all of them. So we made a motion
to recuse him. He hears the motion and he says to us, “This motion is completely without
merit.” He said, “I have no bias in this at all. I have an absolute right to sit in this case,
but since you made the motion, I’m going to recuse myself.”
He was wrong on both counts. He surely should have recused himself and he surely
should not have recused himself it he didn’t think there was a problem. We got him off
the case and we got Judge Bryan. The other side made motions to dismiss and we won a
motion for class certification. He denied the motion to dismiss and said this case is going
to go to trial. So we proceeded on our way and went to trial—
MR. MARCUS: You got your class certification?
MR. MORRISON: We got the class cert—they basically didn’t object. I mean, it was
pretty hard to object, and they weren’t in that kind of mood at that time. We went to trial.
Just before we had a one-day trial—it was actually less than that; it was half a day,
maybe. We had a stipulation on a number of the facts and we put in evidence principally
about the interstate commerce aspect. We had to show interstate commerce. Tommy
Jacks had worked with a volunteer to go and do a search of the deed books in Fairfax
County to show interstate money and buyers and moving and everything like that and
guarantees for the federal government. There was a pretty strong interstate commerce
connection. That is, if you bought our theory of what interstate commerce was and how it
applied. We had that and we had the Goldfarbs testify and that was it.
Just before the trial, the Alexandria and Arlington Bars came to us and said, “We will
withdraw our fee schedules if you withdraw the claim for damages against us.” We
decided to accept that. First, we thought litigating against the Fairfax County Bar and the
State Bar was quite enough. Second, we wanted to be able to show and argue later on that
the world did not come to an end when the fee schedules went out. We went to trial. Very
quickly, Judge Bryan issued an opinion in which he said the fee schedules violate the
antitrust laws. They are a form of price fixing. There is interstate commerce and there is
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no learned profession exception. He enjoined Fairfax County Bar. But he said the State
Bar was immune for its minimal role in the process and it also had a Parker-Brown
exemption.
MR. MARCUS: Was the main defense on the merits—or that the antitrust laws just
didn’t apply to the profession?
MR. MORRISON: Yeah. I think Bryan basically didn’t much care.
MR. MARCUS: The problem was if it applied to per se violations.
MR. MORRISON: But Bryan—my recollection is that the summary judgment motions
weren’t really serious because I just think he decided there was no need to not have a
little trial. We can just have a little trial and get the whole thing over and done with. I
don’t think he took them—he just sort of denied them. We got a look at what their
arguments were and we understood what we had to do. The Fairfax—well, both of them
had a learned profession argument, both of them had an interstate commerce argument
and both of them had a Parker-Brown. The Fairfax Parker-Brown was sort of, “Well, we
were just doing what the State Bar told us to do.”
MR. MARCUS: And the State Bar is a governmental body?
MR. MORRISON: Government. It’s an arm of the Supreme Court. Both sides took
appeals.
MR. MARCUS: What did you appeal?
MR. MORRISON: The dismissal as to the State Bar.
MR. MARCUS: Oh, of course.
MR. MORRISON: He let the State Bar off and frankly, as far as we were concerned, if
the State Bar got off, they could replicate the whole thing with the State Bar doing the
whole thing. We couldn’t possible let that stand. In addition, it was clearly not a minor
role they had because they had issued fee reports and they were the enforcers. Moreover,
they issued another report in 1969—I didn’t mention this—in which everything was the
same except they increased all the schedules up. They raised everything up. And then of
course, the local bars followed the leader. The State Bar was a “suggested.” They all said
“suggested,” but of course, under the antitrust laws, it doesn’t make any difference if an
association is suggesting to its members that they fix prices.
So it went to the Fourth Circuit and we argued before a very hostile panel and lost two to
one. Senior Judge Boreman wrote the majority opinion. Very, very hostile on everything.
No learned profession exception, no interstate commerce—
MR. MARCUS: You mean there was a learned profession exception.
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MR. MORRISON: I’m sorry. There was a learned profession exception and there was no
interstate commerce and, of course, the State Bar was not liable in any event and Judge
Craven wrote a quite strong dissent saying no learned profession exception, and plenty of
interstate commerce. But he agreed that the State Bar was immune under Parker-Brown.
Meanwhile, the government, the United States Department of Justice, had finally gotten
off its duff on this issue, although it had been pushed for a long time to do so, and
brought a case against the Oregon State Bar for their minimum fee schedules. This was
while the case was pending in the Fourth Circuit. We got the decision in the summer
of—in the spring ’74. Then we filed our cert. petition. We persuaded the government to
join us at the cert. stage, which they did more of then than they do now. Solicitor General
Robert Bork was on our side. As he reminded me several—many years later, that this
was the case he and I argued together in the Supreme Court on the side of striking down
these fee schedules. The Court granted cert. in the fall of ‘74. The case was argued.
Justice Powell recused himself.
MR. MARCUS: Was this your first Supreme Court argument?
MR. MORRISON: It was not my first. It was my second, I think. The Justice Department
came in on our side, very helpful. One of the more helpful things that happened was the
Texas State Bar filed a brief supporting the defendants’ case and the brief talked about
how it was absolutely economically essential for lawyers to make a decent living and be
able to engage in minimum fee schedules, which I promptly cited in my reply brief
saying this has nothing to do with any of this protection stuff.
There was an amusing sequence in this case, and a similar one in the case I’m about to
talk about, with Justice White. Justice White said to me, “Mr. Morrison, what about the
rules on lawyer advertising?”
I said, “Well, many of those are imposed by the State Supreme Court and so that would
be a different case.”
He said, “Well, what about if the Bar imposes the rules on lawyer advertising?”
I said, “Well, in my judgment, they would be subject to the same analysis as the
minimum fee schedules here.”
He said—as if it was in any other business besides the law business—he said to me,
“Well, what is the law about restrictions—joint restrictions on advertising?”
I said, “I’m quite sure, Your Honor, that the Court has never actually faced that issue, but
the lower courts have suggested that it would violate the antitrust laws.”
He said, “Would that be a per se rule or rule of reason?”
I said I didn’t know; it hadn’t been clear.
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He said, “Well what do you think about it?”
I said, “I think it would violate it.”
He said, “Okay, that’s what I wanted to know.”
Of course, their whole point in all this was—it’s a slippery slope and stay out of all this
and so forth and so on.
MR. MARCUS: And Burger, of course, I assume you lost him anyway.
MR. MORRISON: We did not.
MR. MARCUS: On minimum fees you didn’t?
MR. MORRISON: He wrote the opinion for the Court.
MR. MARCUS: Oh, did he? In Goldfarb he did? Was it unanimous?
MR. MORRISON: Unanimous. Eight to nothing. Powell recused because his law firm
was representing the Fairfax County Bar Association and he had been a former president
of the Virginia State Bar. It was perfectly appropriate for him to recuse himself.
No, we won the case eight to nothing and it was a—they, of course, were all slippery
slopes and Burger said minimum fee schedules are price fixing and the least learned part
of the profession.
It was a resounding victory. We were also—they had raised—the State Bar had also
raised an Eleventh Amendment issue saying that the State Bar was immune from suit.
We said—well, in the first place, nobody’s decided that below so you shouldn’t decide.
Second, it only goes to money damages. Third, it’s invalid to begin with but you don’t
have to decide that now.
MR. MARCUS: So you won against the—the State Bar—the Supreme Court reversed the
Fourth Circuit on…?
MR. MORRISON: On everything. Everything on the State Bar.
MR. MARCUS: So Burger, I assume, wrote an opinion that probably had a footnote
saving the advertising.
MR. MORRISON: There was a professional engineers case brought by the Justice
Department decided in D.C. here and there was a cert. petition pending on that. Actually,
it was a direct appeal because, at those times, antitrust cases could go directly to the
Supreme Court.
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They summarily reversed that case and sent it back for further proceedings in light of
Goldfarb. The lower court said, well we don’t think anything has changed and the Court
ended up agreeing later on, yes we shouldn’t have bothered to send it back and yes,
professional engineers’ rules were no good either.
That was our first big case. We won that eight to nothing, got a remand back to the
District Court. They made a motion on the Eleventh Amendment. Judge Bryan rejected
that. We began to engage in settlement discussions. There was no question about the
injunction. The question was what could we prove. Fairfax County Bar said to us, “You
can sue us for all you want. We’re a voluntary association. We have nothing. All we’ll do
is go out of business.”
Lew Goldfarb said to me, “Fine, I accept. Put them out of business.”
They said to us at one point, you can pass out the F. Supps or the opinions of the Virginia
Supreme Court to the members of the class because that’s the only assets we’ve got.
And of course we understood that. They ended up paying, my recollection is, $25,000.
Fairfax—the State Bar paid $225,000.
MR. MARCUS: That’s not bad. Not bad in those days.
MR. MORRISON: So we had to notify all the class members. Fortunately, we had a
reasonable time—we didn’t have a lot of people, we had to hire some people to do it and
send individual notices—you know, before the computers and everything. This was done
in ‘75-6. We notified people, and we devised a formula by which everybody would get
paid a pro-rata share—not quite a pro-rata share, but some portion of the amount over a
certain amount that they got charged based upon how many claims we had. The average
member of the class got $139 back, which was more than they had ever expected to get
back out of closing costs. It was enough to make it worthwhile.
We, of course, decided we would take a fee in this case. We didn’t take fees in many
cases because they were not available, but since it was there, we took a fee of $75,000
out of about two and a quarter. I think it was fifty. I don’t remember. Anyway, we had
not terrifically good time records because we were not interested in those kind of things
and we didn’t have the staff and didn’t have the incentive to keep these time records. But
we had put in an enormous amount of work and in terms of changing the law and getting
results for the class members. We went to the hearing to approve the settlement and
Judge Bryan said, “Now I noticed that with respect to the fee you are only asking for this.
Is that all you’re asking for, Mr. Morrison.”
I said, “Yes.” I said to him, “Your Honor, I thought that in this case it would be
singularly inappropriate for the lawyers to ask for a large fee.”
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He said, “I want the record to reflect that if you had asked for a larger fee, I would have
given it to you.” Thirty-four states had minimum fee schedules. All out the window. Of
course, the ripple effect throughout all of the professions. It was a quite significant case.