Justice Scalia’s dissent in Morrison v. Olson is the cornerstone of conservative legal thought. Every year I teach it, I gain new insights into the separation of powers. Nearly four decades later, the opinion gets better with time. (Justice Kagan said that, or at least something like that.) Alas, Chief Justice Rehnquist’s majority opinion remains controlling law. The Court had no occasion to overrule Morrison, but it has been eroded in cases like Seila Law and Arthrex. However, Special Counsel Jack Smith’s prosecution of Donald Trump presents just that opportunity for Morrison to be overruled. And I personally made sure of it.
During oral argument in Judge Cannon’s court, I preserved the issue of whether Morrison should be overruled by the Supreme Court. It was the very last thing I said before I sat down.
MR. BLACKMAN: I will make just one last point, Your Honor, and then I’ll sit down. Morrison v. Olson, of course, is precedent. I don’t know that the defendants have asked to preserve the issue over whether Morrison should be overruled. Maybe I can. I will. But I think this is a precedent that has been chipped away by Seila Law and other cases. And I think it’s at least fair to acknowledge that this stands on a shaky foundation.
THE COURT: All right. Thank you very much. I appreciate your assistance.
MR. BLACKMAN: Thank you, Your Honor.
[ECF No. 647, p. 112.]
During rebuttal, James Pearce, the lawyer for the Special Counsel, referenced my remark, though I don’t think he quite got what I was trying to do.
MR. PEARCE: Now, I want to spend just a moment, if I could, on the difference between “employee” and “officer.” I think that was the thrust of what I understood the Tillman amicus brief and Mr. Blackman—although Mr. Blackman was wide-ranging, I think he asked this Court to overrule Morrison v. Olson, which I don’t think is in any way presented. But I want to focus on what the brief was about. [ECF No. 647, p. 155 (bold added).]
But Judge Cannon understood exactly what I said. Her opinion expressly referenced the preservation of this issue in Footnote 54:
Post-Edmond, the viability of Morrison has been called into question. See, e.g., N.L.R.B. v. SW Gen., Inc., 580 U.S. 288, 315 (2017) (Thomas, J., concurring) (“Although we did not explicitly overrule Morrison in Edmond, it is difficult to see how Morrison‘s nebulous approach survived our opinion in Edmond. Edmond is also consistent with the Constitution’s original meaning and therefore should guide our view of the principal-inferior distinction.”); Concord Mgmt. & Consulting LLC, 317 F. Supp. 3d at 617 & n.8 (citing cases and scholarship). Nonetheless, because it has not been overruled, the Court proceeds to apply the Morrison test alongside Edmond. Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989) (stressing the Supreme Court’s “prerogative of overruling its own decisions”). Defendants have not argued for the overruling of Morrison in this court, although the matter was raised at argument by the Landmark Legal amici. [Tr. of Oral Argument (June 21, 2024)] ECF No. 647 p. 112; ECF No. 364-1 (criticizing Morrison). [slip op. 71 n.54 (bold added).]
A few hours after my oral argument concluded, I wrote about Mapp v. Ohio. In that case, the ACLU as amicus asked the Supreme Court to overrule Wolf v. Colorado. And the Supreme Court did just that. I wrote, with some degree of self-awareness, that it would be even better for the issue to have been raised by an amicus in the lower courts:
More relevant to the present day, the holding of Mapp suggests that an Amicus who is invited to participate can ask the Supreme Court to overrule a precedent, and the issue is not waived. Indeed, the Amicus was allowed to make this request for the first time before the Supreme Court, even where it was not raised in the lower court litigation. The Supreme Court apparently did not see any problem with waiver or the party presentation rule here. If what the ACLU did was proper, it stands to reason that a similar request could be made by an amicus who is invited to participate in the lower courts, if only to put everyone on notice that a precedent is in doubt, and to preserve the issue for review by the Supreme Court.
Another relevant precedent is Teague v. Lane (1988). In that case, the plurality, per Justice O’Connor, addressed a retroactivity issue that was only pressed by amicus:
The question of retroactivity with regard to petitioner’s fair cross-section claim has been raised only in an amicus brief. See Brief for Criminal Justice Legal Foundation as Amicus Curiae 22-24. Nevertheless, that question is not foreign to the parties, who have addressed retroactivity with respect to petitioner’s Batson claim. See Brief for Petitioner 21-32; Brief for Respondent 31-38. Moreover, our sua sponte consideration of retroactivity is far from novel. In Allen v. Hardy, we addressed the retroactivity of Batson even though that question had not been presented by the petition for certiorari or addressed by the lower courts. See 478 U.S. at 478 U. S. 261-262 (MARSHALL, J., dissenting). See also Mapp v. Ohio, 367 U. S. 643, 367 U. S. 646, n. 3 (1961) (applying exclusionary rule to the States even although such a course of action was urged only by amicus curiae).
In dissent, Justices Brennan and Marshall expressed astonishment that the plurality reached this issue based on the representation of an amicus:
Astonishingly, the plurality adopts this novel precondition to habeas review without benefit of oral argument on the question, and with no more guidance from the litigants than a three-page discussion in an amicus brief. See Brief for Criminal Justice Legal Foundation as Amicus Curiae 22-24.
But such is the law of issue preservation before the Supreme Court. Unless a different set of law applies nowadays.Â
Given Mapp and Teague, from my vantage point, the issue of whether Morrison v. Olson should be overruled has been preserved. And the Special Counsel is squarely on notice that the question of whether Morrison‘s holding should be preserved or overruled is at issue.
With the benefit of hindsight, Attorney General Merrick Garland’s decision to appoint Smith may become one of the greatest blunders in DOJ history. Or, from a different vantage point, his decision may lead to the greatest strengthening of the President’s Article II power in Supreme Court history. First, the investigation led to the sweeping immunity ruling in Trump v. United States. Second, the prosecution may lead to the special counsel regulations being called into question by the Supreme Court, if not the overruling of Morrison. Third, none of these cases yielded a trial, let alone a conviction, before the election. Fourth, despite everything that has happened over the past four years, Trump is still leading in many polls, and may still be reelected. What good did any of these proceedings accomplish? Garland would have been better off indicting Trump in January 2021, or doing nothing at all.
