Saturday, January 14, 2012
In the opinion in Perry v. Judd (with Gingrich, Huntsman, and Santorum as intervenors), Judge John Gibney of the Eastern District of Virginia denied the motion for preliminary injunction seeking to allow the Republican candidates on the ballot on the grounds of laches.
Perry and the other candidates not on the ballot argue that the Virginia process violates the First and Fourteenth Amendments. Virginia Code, §24.2-545(B), requires that the required petitions be "signed by at least 10,000 qualified voters, including at least 400 qualified voters from each congressional district in the Commonwealth." Additionally, the provision gives the State Board authority over the petition process: the Board has mandated that the petition be circulated by a registered (or eligible) voter in Virginia and the circulator must sign the petition in the presence of a notary.
In considering the First Amendment merits of the challenge, the judge found the Supreme Court's 1999 decision in Buckley v. American Law Foundation "instructive," especially regarding Virginia's requirement that the petition circulator be a resident of Virginia (as part of the "eligible voter" requirement). While the Virginia requirement is less restrictive, it nevertheless "limits the number of voices who can convey the candidates' messages, thereby reducing 'the size of the audience [the candidates] can reach.' " (Opinion at 16). Applying strict scrutiny to this political speech, the judge was "skeptical" that the state's proferred interest (the ability to subpoena petition circulators) was compelling.
On the other hand, the judge found the statute's 10,000 signature requirement would likely survive First Amendment scrutiny. He reasoned that such a number - - - 0.2% of the state's registered voters and 0.5% of the voters who voted in the last statewide election - - - cannot be seriously argued to be "unduly burdensome." In further support, he noted that six Republican candidates complied with the same rules four years ago for the 2008 primary election.
The judge's opinion conducts a separate analysis for laches - - - noting that it is an affirmative defense - - -rather than including it within the standards for preliminary injunction. (Recall that the last two factors of the established four-factor test are whether the equities tip in the movant's favor and whether the injunction is in the public interest.) Laches as an affirmative defense to equitable relief is well-established; as relief for a First Amendment violation, less so. However, considering the requirements of lack of diligence and prejudice to the respective parties, Judge Gibney found that the Candidates were not diligent - - - they should have "brought in an army of out-of-state circulators" as soon as possible (July 1 for Huntsman, Santorum, and Gingrich; August 13 for Perry who did not declare his candidacy until that date).
The judge rejected the candidates' argument that they did not have standing until the State Board rejected their ability to appear on the ballot. The Board rejected their claim because they did not have the 10,000 required signatures. But Judge Gibney essentially states that they should have disregarded (or perhaps challenged) the petition circulator qualification that arguably prevented them from obtaining the 10,000 signatures well before failing to obtain the 10,000 signatures. As Judge Gibney phrases it, the candidates "slept on their rights to the detriment of the defendants."
Thus, had the candidates "filed a timely suit," the judge would have granted a motion on the residency required and allowed non-residents to gather signatures, the candidates would have presumably been able to obtain 10,000 signatures, and Perry, Huntsman, Santorum, and Gingrich would be on the Virginia presidential Republican primary ballot.
Although an appeal seems likely, as of now, Virginia Republicans will have a choice between Ron Paul and Mitt Romney.
[image: Republican Candidates, 2012, via]
January 14, 2012 in Association, Current Affairs, Elections and Voting, Federalism, Fifteenth Amendment, First Amendment, Fourteenth Amendment, News, Opinion Analysis, Speech, Standing | Permalink | Comments (0) | TrackBack (0)
Friday, January 13, 2012
Writing the opinion in Grayson v. Schuler, Judge Posner, in his imitable style, has rejected what he terms a "Rastafarian exception" to a prison practice of allowing Rastafarians, but not others, to have dreadlocks. In case readers of the opinion need a bit of tutelage on the subject, Posner instructs
"Dreadlocks can attain a formidable length and density, as shown in this photograph of the late Jamaican musician Bob Marley (a Rastafarian):"
Grayson, a former inmate of the Big Muddy Correctional Center, an Illinois prison, appeared pro se in the federal courts, arguing that the correctional officer who ordered the forcible shearing of his dreadlocks violated the Free Exercise Clause. The officer had declared that Grayson's hair caused a security risk. Grayson contacted the prison chaplain who informed him that "only Rastafarians are permitted to wear dreadlocks." Grayson, Posner explains,
is not a Rastafarian, but a member of the African Hebrew Israelites of Jerusalem; and according to the chaplain the members of that sect are not required by their faith to wear dreadlocks (this appears to be correct), and therefore, he concluded, the plaintiff was not entitled to wear them. (It’s the “therefore” that’s the issue in this appeal.)
Interestingly, the chaplain's opinion (as well as Posner's) about the tenets of the African Hebrew Israelites could raise an Establishment Clause concern. Posner, however, discusses the vows of the Nazirites which includes letting the hair of the head "grow long," and citing to the Biblical character of Samson, whose seven braids, "could well have been dreadlocks."
Posner cites Employment Division v. Smith, 494 U.S. 872 (1990), with its rule regarding neutral laws of general applicability just discussed by the Supreme Court in Hosanna-Tabor, but notes that the applicability of Smith to prisoners is uncertain because of an earlier Supreme Court decision, O’Lone v. Shabazz, 482 U.S. 342, 348-50 (1987), "which requires prison authorities to “accommodate” an inmate’s
religious preferences if consistent with security and other legitimate penological concerns." Posner notes that O'Lone was not expressly overruled by Smith, or by Cutter v. Wilkinson, 544 U.S. 709 (2005) - - - neither of which occurred in a prison context, of course - - - and adds that "we’re not supposed to declare a decision by the Supreme Court overruled unless the Court makes clear that the case has been overruled, even if we’re confident that the Court would overrule it if the occasion presented itself."
Yet ultimately Posner states that the case does not rest on "accommodation" surviving Smith, but on the arbitrary discrimination favoring Rastafarians. Indeed, it is this arbitrary discrimination that supports Posner's reversal of the summary judgment finding the officer was entitled to qualified immunity. The officer "seems just to have been applying the Rastafarian exception, which could not reasonably be thought constitutional."
[image: from the opinion;
and thanks to a reader, we can now identify the correct source of the image as photographer David Corio, here]
Thursday, January 12, 2012
The Justice Department Office of Legal Counsel today released its opinion (dated January 6, 2012) concluding that President Obama had authority under the Recess Appointments Clause to appoint Richard Cordray as head of the Consumer Financial Protection Bureau and members of the National Labor Relations Board during less than three-day breaks between pro forma sessions of the Senate. We most recently posted on the appointments here.
Recall that opponents of the appointments argued that the three-day breaks between pro forma sessions were not long enough to constitute a "recess" of the Senate, and that the appointments therefore required Senate advice and consent and violated the Recess Appointments Clause.
The OLC took a functional approach to the definition of "recess," asking whether the Senate's pro forma sessions would have allowed the Senate to fulfill its advice-and-consent role for ordinary appointments. The Office said no, and therefore the President may use his recess appointment power.
The OLC took it in a two-step. First, it asked whether the President had authority to make a recess appointment during the Senate's recess here--a 20-day intrasession recess. Answer: Yes, based on the OLC's prior advice, historical practice, and the limited judicial authority on the question. This is relatively uncontroversial.
Second, it asked "whether the President is disabled from making an appointment when the recess is punctuated by periodic pro forma sessions at which Congress has declared in advance that no business is to be conducted." Answer: Also yes, although it acknowledged that this was somewhat more controversial--and creates "some litigation risk for such appointments."
This functional approach allowed the OLC to dodge the harder question, whether any three-day recess is necessarily a "recess" under the Recess Appointments Clause. The memo explains:
Because we conclude that pro forma sessions do not have this effect [that the Senate is unavailable to fulfill its advice-and-consent role], we need not decide whether the President could make a recess appointment during a three-day intrasession recess. This Office has not formally concluded that there is a lower limit to the duration of a recess within which the President can make a recess appointment.
Op. at 9, n. 13. In other words, what's important isn't the three-day recess between pro forma sessions, but the 20-day recess (which is a "recess" under the Recess Appointments Clause) punctuated by pro forma sessions (which do not allow the Senate to fulfill its constitutional role of advice and consent). (Under this reasoning, the pro forma sessions could be spread across any number of days--1, 2, or 15. What matters is whether the Senate can conduct business, or, more precisely according to the OLC, whether the President determines that the Senate can conduct business--see below.)
The Office cited its own precedent, historical practice, and the Senate Judiciary Committee's own position in support of this functional approach.
Under the approach, the Office concluded that "the President may determine that pro forma sessions at which no business is to be conducted do not interrupt a Senate recess for purposes of the Recess Appointments Clause."
The OLC rejected arguements that the Senate employed pro forma sessions, with full legal effect as other sessions, in other contexts (because those contexts are different); that the Senate itself, under its rules, should be able to determine when it's open for business (because that determination can't trump the Constitution); that based on experience the Senate is, in fact, open for business during pro forma sessions (because the Senate said here "no business conducted," and because the President gets to determine this); that precedent on the pocket veto should constraint the President's recess appointment authority (because the purposes are different); and that the Justice Department (through then-SG Kagan) took a different position on NLRB appointments in 2007 (because SG Kagan's letter, like this OLC opinion, did not answer the question whether an intrasession recess of three days or less constitutes a "recess" under the Recess Appointments Clause).
Wednesday, January 11, 2012
The Supreme Court Recognizes the Ministerial Exception in Hosana-Tabor Evangelical Lutheran Church and School
In a unanimous and somewhat narrow opinion today, the United States Supreme Court in Hosana-Tabor Evangelical Lutheran Church and School v. EEOC recognized the so-called "ministerial exception" barring a lawsuit against a religious organization by an employee seeking relief pursuant to federal anti-discrimination laws. Justice Thomas wrote a short concurring opinion; Justice Alito authored a much longer concurring opinion, in which Justice Kagan joined.
The litigation was the focus of a well attended and lively "Hot Topics" panel at the AALS meeting a few days ago, exploring the multi-layered doctrine and ambiguous facts.
One problem is the status of Cheryl Perich as a minister eligible for any "ministerial exception." Chief Justice Roberts declined to provide a test, but reversed the Sixth Circuit's finding that Perich was not a minister. Perich was a "called teacher" at a school who performed the same duties as a "lay teacher." The Sixth Circuit and the EEOC found it relevant that Perich's "religious duties consumed only 45 minutes of each workday" and "the rest of her day was devoted to teaching secular subjects." Roberts, however, wrote that the issue should not be "resolved by a stopwatch." Instead, the Court considered the fact that the Hosana-Tabor had issued Petrich a "diploma of vocation" according her the title "Minister of Religion, Commissioned."
Another factual issue regarded Ms. Perich's dismissal as an employee. Ms. Perich developed narcolepsy, was asked to resign, refused, and later stated that she had spoken to an attorney. The School terminated her on the basis of her insubordination and threat to take legal action. She filed a charge with the EEOC based on a claim of retaliation under the Americans with Disabilities Act (ADA). Justice Alito's concurring opinion discusses the relevance of "retaliation" under the First Amendment Religion Clauses:
Hosanna-Tabor discharged respondent because she threatened to file suit against the church in a civil court.This threat contravened the Lutheran doctrine that disputes among Christians should be resolved internally without resort to the civil court system and all the legal wrangling it entails. In Hosanna-Tabor’s view, respondent’s disregard for this doctrine compromised her religious function, disqualifying her from serving effectively as a voice for the church’s faith. Respondent does not dispute that the Lutheran Church subscribes to a doctrine of internal dispute resolution, but she argues that this was a mere pretext for her firing, which was really done for nonreligious reasons.
Altio then notes that such a pretextual argument would mean that "a civil court—and perhaps a jury—would be required to make a judgment about church doctrine."
While the concurring opinions avail themselves of the language of religious "autonomy" - - - a controversial concept especially in light of contemporary clergy sexual abuse issues - - - the Court's opinion avoids such language. The Court specifically rejects the government's "parade of horribles" including retaliation for reporting criminal misconduct or testimony. As the Court states,
The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. Today we hold only that the ministerial exception bars such a suit. We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers.
Given such language, commentators can surely criticize the case as carving out another exception, this time a "religious exemption," from anti-discrimination statutes a majority of the Court find unappealing.
While the Court's opinion relies on both the Establishment Clause and the Free Exercise Clause, stating that both "bar the government from interfering with the decision of a religious group to fire one of its ministers," those familiar with First Amendment Free Exercise Clause doctrine might wonder about precedent. Specifically, one might question the relevance of Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990) - - - the peyote case - - - in which the Court declared that free exercise does not insulate against a neutral law of general applicability. The Court did distinguish Smith:
It is true that the ADA’s prohibition on retaliation, like Oregon’s prohibition on peyote use, is a valid and neutral law of general applicability. But a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. [Citing Smith] (distinguishing the government’s regulation of“physical acts” from its “lend[ing] its power to one or the other side in controversies over religious authority or dogma”).
Thus, the Court found the contention that Smith forecloses recognition of a ministerial exception rooted in the Religion Clauses, as the government argued, to be without merit. On one reading, this distinction protects religious institutions more than individuals. On another, more cynical, reading, this distinction protects majority religious affiliation more than minority religious affiliation. (Alito's concurring opinion is worth reading in that it stresses the religious specificity of "ministers" and seeks to broaden it). The Court's reading of "outward physical acts" and "internal church decisions" may be workable, but it does veer close to the "autonomy" concept the Court avoided.
[image: Martin Luther by Lucas Cranach der Ältere, 1529, via]
The Supreme Court heard oral argument yesterday in Knox v. SEIU, the case testing whether a union had to issue a special opt-out notice to nonmembers when it increased its assessment mid-year. The case comes to the Court on nonmembers' First Amendment challenge--whether the failure to provide a special opt-out notice violates their speech and associational rights not to support the union's political (i.e., non-bargaining) activities. But as the argument yesterday suggests, it could turn on something much more practical: how to craft a rule that would give a union enough flexibility to adjust its assessments mid-year, while still respecting nonmembers' rights to opt-out of supporting the union's political agenda. Or it could turn on something else entirely: standing.
In the ordinary course of things, the union collects dues once a year and issues a notice--a Hudson notice, after Chicago Teachers Union v. Hudson (1986)--that allows nonmembers to opt-out of dues that would go to the union's political expenditures (but not dues that would go to the union's collective bargaining expenditures). The union here regularly anticipated dues for the next year based on audited prior year expenditures and issues a Hudson notice that reflected that. This was a practical solution, designed to estimate the union's coming year expenditures while protecting nonmembers from supporting the union's political activities that nonmembers may not wish to support. No party challenged this basic procedure.
But in 2005, shortly after the union issued its 2005 Hudson notice, the union increased its assessment slightly to fund its opposition to anti-union ballot initiatives. The union did not issue a separate Hudson notice for this increase, although nonmembers could have objected under the 2005 Hudson notice and the 2006 Hudson notice. (The 2005 Hudson notice did not include the mid-year increase, but it did say that dues and fees were subject to change. The 2006 Hudson notice did include the mid-year increase, because, as above, the estimate in each year's Hudson notice is based on last year's actual audited expenditures.)
Nonmembers claimed that this violated their First Amendment rights to not support causes they don't agree with. Again: They didn't challenge the fundamental Hudson process, just the lack of a Hudson notice for the 2005 mid-year increase.
The district court granted summary judgment for the plaintiffs, but the Ninth Circuit reversed. After the Court granted cert., the union sent all nonmembers a notice that permitted them to obtain a refund of the increased assessment and a $1 bill, representing nominal damages. The union claimed that this satisfied the district court order and argued that it mooted the case.
The argument yesterday focused a good deal on mootness. The plaintiffs tried to persuade the Court that the union's mid-year increase without a separate Hudson notice was capable of repetition but evading review, while the union argued that its eleventh-hour notice gave the plaintiffs all the relief they could possible get even under the district court's order. There were skeptics on the bench on both sides. For example, Justices Ginsburg and Kagan both suggested that the capable-of-repetition exception usually applies to cases involving injunctive relief, and this case doesn't. On the other side, Chief Justice Roberts and Justice Kagan both suggested that the plaintiffs said that the union's notice didn't satisfy the district court's order--a live dispute--and that the union can't say that there is no standing at the Supreme Court, while there is standing at the district court (even if only on the question whether the union's notice satisfied its order).
Despite the significant focus on mootness, however, Chief Justice Roberts also moved both parties along to the merits. On the merits, the Court treated the question as a choice between (1) a forced loan by the nonmembers to the union to support political causes they don't wish to support and (2) a practical solution that gives the union flexibility to adjust assessments mid-year while still respecting nonmembers' right to opt-out.
The plaintiffs pressed for a rule that would require a Hudson notice each time there was a "material alteration in the obligations that are imposed upon nonmembers," without regard to the reason for the assessment. But it's not clear that that rule is workable, or that it is efficient, or that it would benefit (and not hurt) nonmembers. Justice Breyer put it this way:
It's peculiar, because in the circumstances where the extra assessment is all going to go to chargeable [non-political] activities, in fact that means economically speaking the following year the objector will be better off, not worse off, because there is a higher pecentage of the total fee that's being paid to chargeable activities.
Response: "Justice Breyer, the reason for the notice is these people may not trust the union. They -- they may choose to challenge the amount of the fee."
This may not be enough, though. The plaintiffs also conceded that the union could shift funds mid-year to use more than anticipated on political activities--without a separate Hudson notice. This practice would be even less transparent than the practice that the union followed here. This point did not go unnoticed, particularly by Justices Breyer and Kagan. Justice Sotomayor added that she didn't see how the mid-year increase amount to a loan, especially when nonmembers could object with the next Hudson notice and when in any event they ultimately benefit from it (for the reasons that Justice Breyer said).
On the other side, Justice Alito described the practice here as a forced loan, without interest, for activities that nonmembers may not support. He said that the stakes could be quite different for nonmembers, if the percent of nonchargeable and chargeable costs are reversed, and asked "why should [nonmembers] not be given a notice at that time and given the opportunity not to give what would be at a minimum an interest-free loan for the purpose of influencing an election campaign?"
Justices Breyer and Sotomayor returned to the practical: they wanted to know from the union how much of a hassle it would be to provide a special notice with each mid-year increase. Answer: the magnitude of the hassle may be high, but the union's attorney didn't know how often unions would have to do this.
Justice Kennedy reminded the union that there are significant First Amendment interests at issue here:
And the point there was that you're taking someone's money contrary to that person's conscience. And that's what the First Amendment stands against.
Justice Kennedy also threw a bit of a curve ball toward the end of the union's argument, suggesting that "even collective bargaining involves a core political judgment." This position would erase the distinction between chargeable and nonchargeable costs and could undo even the routine Hudson practice that the union employs. No party went so far, and no other Justice picked up on this point, however. It's not even clear that Justice Kennedy intended much by it: he prefaced this line of questioning with "just in the way of background."
If the Court avoids fully wrestling with Justice Kennedy's larger question and thus avoids potentially upsetting a routine practice that nobody seems to object to (as seems nearly certain), and if the Court gets past mootness (as seems far less certain), the case will likely come down to the practical: How best to allow the union some flexibility, while respecting nonmembers' rights to opt-out. But Justice Kennedy's point is a reminder of the stakes; and even in a very practical calculus, for this Court it could mean a thumb on the scale of the nonmembers.
Chief Judge of the Fifth Circuit Edith Jones, well known for her conservative affiliations, authored the panel opinion for the Fifth Circuit vacating a preliminary injunction of Texas HB 15, an Act “relating to informed consent to an abortion.” The district judge had issued a preliminary injunction against seven subsections for violating the First Amendment or Fourteenth Amendment's due process clause encompassing vagueness principles.
Judge Jones rejected the argument that the panel should defer ruling on the preliminary injunction given that the "district court has, notwithstanding this appeal, proceeded apace toward consideration of summary judgment" and therefore a "ruling on this interlocutory matter would become moot if the district court enters final judgment first." In declining to defer, Jones wrote that "this ruling will offer guidance to the district court, which is particularly important given our different view of the case." Should the district judge not hew to the Fifth Circuit's interpretation, a reversal is certain: Jones also made clear that for "the sake of judicial efficiency, any further appeals in this matter will be heard by this panel."
Texas HB 15 requires a sonogram, a display of the sonogram to the pregnant woman, make audible the heart auscultation of the fetus for the woman to hear, and explain to her the results of each procedure and to wait 24 hours, in most cases, between these disclosures and performing the abortion. A woman may only decline the explanation if her pregnancy is a result of a sexual assault or incest, she is a minor who has received a judicial bypass, or the fetus is abnormal.
The district judge found sections of HB 15 unconstitutional as compelled speech, but the Fifth Circuit's review of abortion cases led it to three conclusions:
First, informed consent laws that do not impose an undue burden on the woman’s right to have an abortion are permissible if they require truthful, nonmisleading, and relevant disclosures. Second, such laws are part of the state’s reasonable regulation of medical practice and do not fall under the rubric of compelling “ideological” speech that triggers First Amendment strict scrutiny. Third, “relevant” informed consent may entail not only the physical and psychological risks to the expectant mother facing this “difficult moral decision,” but also the state’s legitimate interests in “protecting the potential life within her.”
Applying these principles, the panel found that the sections of HB 15 "requiring disclosures and written consent are sustainable under Casey, are within the State’s power to regulate the practice of medicine, and therefore do not violate the First Amendment."
As to the three vagueness arguments under the Due Process Clause, Judge Jones found the first "novel" and "novelty suggests its weakness;" the second as not meriting the district judge's "skeptical interpretation" and that the "legislature had every right to maintain the integrity" of its statutory scheme; and the third, "at bottom, trivial."
Judge Patrick Higginbottom's brief concurring opinion is worth reading in full, both for what it says and for what it does not say. While it expresses some misgivings, it leaves little doubt of the result unless the case reaches the United States Supreme Court.
[image: Judge Edith Jones, via]
January 11, 2012 in Abortion, Cases and Case Materials, Courts and Judging, Due Process (Substantive), First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Opinion Analysis, Privacy, Reproductive Rights, Sexuality, Speech | Permalink | Comments (0) | TrackBack (0)
Tuesday, January 10, 2012
A three-judge panel of the Tenth Circuit today issued a preliminary injunction halting Oklahoma's effort to amend its constitution to include an anti-Sharia provision. The court ruled in Awad v. Ziriax that the plaintiff, Muneer Awad, would likely succeed in challenging the provision under the Establishment Clause. We previously posted on the case here.
The ruling is hardly a surprise. The provision facially singles out and discriminates against Islam and Islamic law, even though there was no evidence that any Oklahoma court had ever considered or applied Islamic law, much less in a way that would inspire the state to ban it. And the state apparently only weakly defended the provision, claiming that its only interest in the provision was to determine what law is applied in Oklahoma courts.
The case grows out of Oklahoma voters' approval (by 70%) of the "Save our State" constitutional amendment, which reads:
The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.
Muneer Awad, a Muslim, sued to stop its implementation, claiming that it would single him out for negative treatment because of his faith and inhibit his ability to practice his faith, in violation of both religion clauses.
The Tenth Circuit ruled that Awad had standing, that the case was ripe for review, and that Awad succeeded in showing a likelihood of success on his Establishment Clause claim. The court said that the provision discriminated among religions on its face (by singling out Islam), and thus had to satisfy strict scrutiny under Larson v. Valente (1982). But all the state could come up with for its "compelling interest" was determining which law applied in Oklahoma courts--not enough, according to the court. Moreover, the flat ban on Sharia Law was too rough a cut to meet the narrow tailoring (or "close fit") required under strict scrutiny.
The precise issue before the Court in today's oral argument in FCC v. Fox is more muddled than not. Indeed, Justice Breyer stated in argument that he thought that was the issue was limited to "fleeting expletives" when the Court granted certiorari - - - "Fox coming back" - - -but instead "This is a new case, nothing to do with what we decided before. This is the case of ABC, period. And it is an attack on the 2001 guidelines, not fleeting expletives."
Yet both Fox (represented by Carter G Phillips) focused on the "fleeting expletive" sanction based on Cher's statement at an award ceremony and ABC (represented by Seth Waxman) focused on a nudity sanction based on an episode of NYPD Blue, argued against the FCC (represented by the Solicitor General Verrilli).
The Justices - - - sans Sotomayor who did not participate - - - did seem reluctant to honor the respondents' request to overrule FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978) (the "seven dirty words" case), yet also seemed uncertain to what extent the case survived into the current climate. Justice Alito stated that "broadcast TV is living on borrowed time. It is not going to be long before it goes the way of vinyl records and 8 track tapes," and asked Carter Phillips, "So why not let this die a natural death? Or why do you want us to intervene - - -" Phillips, rightly pointed out that it was actually the FCC that had asked the Court to intervene, although Alito retorted that "you are asking us to intervene by overruling a prior precedent."
The notion that "regulated media" is an exception, or at least a special case, with regard to general obscenity doctrine, is certainly under pressure. The Solictor General began his argument with a sort of contractual theory - - - when "a broadcast licensee takes a license for the free and exclusive use of a valuable part of the public domain, it also accepts enforceable public obligations," including "the indecency restriction." Verrilli also emphasized radio, which although not before the Court, was in Verilli's view important because "a lot of the most vile and lewd material really is in radio." However, the Justices seemed more concerned with whether today's television viewers actually knew whether they were watching broadcast television or cable television, as well as the other types of media and whether or not there were adequate parental controls.
An assumption of no constitutional difference for regulated media underlied some of the arguments regarding the obscenity of "buttocks." Indeed, as Seth Waxman pointed out, the art in the Supreme Court itself might be instructive:
MR. WAXMAN: Well, there's a bare buttock there, and there's a bare buttock here. And there may be more that I hadn't seen. But frankly, I had never focused on it before. But the point -
JUSTICE SCALIA: Me neither.
Yet even if there is a special status for regulated media, the line-drawing still poses problems.
JUSTICE GINSBURG: If they did an excerpt from "Hair," could they televise that?
GENERAL VERRILLI: I think it would raise serious questions. I think nudity is going to raise very serious questions, and I think-
JUSTICE GINSBURG: In the opera in the "Metropolis" case [ "The Makropulos Case" see comments ] there's a scene where a woman is seen nude entering a bathtub. Suppose that were shown, that scene from the opera.
GENERAL VERRILLI: Well, I don't -- I think, Justice Ginsburg, that in a context-based approach, there's not going to be perfect clarity.
If the oral arguments are any indication, the Court's ultimate decision will not introduce "perfect clarity" into this complex doctrine.
[image: from the Supreme Court friezes via]
The Supreme Court ruled 8-1 today that a prisoner in a privately run federal prison in California cannot sue guards for a violation of his Eighth Amendment rights under Bivens v. Six Unknown Fed. Narcotics Agents. The ruling, authored by Justice Breyer, means that when alternative state causes of action (or other processes) exist, plaintiffs have no Bivens action against private government contractors, even when they are engaged in traditional government services (like guarding a prison).
Justice Breyer applied the two-prong approach in Wilkie v. Robbins (2007). The Court in Wilkie held that Bivens does not extend if (1) there are "alternative, existing" processes that provide adequate protection or (2) there are special factors counseling against a Bivens remedy. Only the first was at issue here.
Justice Breyer wrote that California tort law provided an adequate, alternative process, even if the remedies available were not perfectly equal to remedies under Bivens--that "[t]he existence of [an alternative, existing process] here constitutes a 'convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.'" Op. at 6-7.
The ruling, which focuses on the availability and adequacy of state tort law, at least theoretically leaves open the possibility that Bivens might extend in a similar circumstance but when an alternative process is inadequate.
The ruling extends the holding in Correctional Services Corp. v. Malesko (2001), which said that Bivens did not extend to a plaintiff's case against a privately operated prison (and not a private prison guard). The plaintiff here tried to distinguish Malesko on the ground that Bivens is designed to deter, and while the threat of a Bivens action against a private prison can't deter individual officers, the threat of a Bivens action against private guard can.
Justices Scalia and Thomas concurred, emphasizing their view that "Bivens is 'a relic of the heady days in which this Court assumed common-law powers to create causes of action' by constitutional implication," and that it should be limited to its facts. (Quoting Malesko, Scalia, J., concurring.)
Justice Ginsburg was the lone dissenter. She would have extended Bivens to the private prison guards, based on Bivens's application to the government prison guard in Carlson v. Green (1980). She also emphasized the deterrence point--that the threat of Bivens against private guards can deter (even if the threat against a private prison, under Malesko, can't).
The Supreme Court heard oral argument yesterday in Perry v. Perez, the Texas redistricting case testing what deference a federal district court in Texas should give to the Texas legislature's redistricting plan, when preclearance of the plan is pending in the Federal District Court for the District of Columbia. We posted most recently here.
Questioning suggested that the Justices are likely to fall along the traditional divide, with Justice Kennedy likely straddling (but leaning toward Texas)--if the Court is forced to choose between the Texas legislature's plan and the Texas court's plan. But that may be a big "if": Questioning also suggested that at least some of the Justices (including Justice Kennedy) are looking for a third way, a practical, fair solution--outside the dualistic choice of the Texas legislature's plan or the Texas court's plan--that navigates Section 2 and Section 5 of the Voting Rights Act given the tension between the two here and given the very short timeline. This might be a variation on some other plan (like Judge Smith's plan, in dissent in the Texas court), or switching the burden to Texas in the Section 2 case while Section 5 preclearance is pending, or some other alternative. It wasn't clear that a majority of Justices could coalesce around any particular third way, but it was clear that some on the bench were looking for one.
The case grows out of Texas's redistricting efforts in the wake of the 2010 census. Texas had to redraw its congressional districts and its state House and Senate districts to comply with the one-person, one-vote principle. Texas, as a covered jurisdiction under the Voting Rights Act, also had to get preclearance under Section 5 of the VRA for its redistricting plan from either the Department of Justice or the Federal District Court in the District of Columbia. Texas chose the latter, slower method, and preclearance is still pending.
At the same time, a group of plaintiffs filed suit in a federal district court in Texas, alleging that Texas's plan violated Section 2 of the Act, because it illegally discriminated.
Because preclearance was pending in the D.C. court, the Texas court drew its own maps as an "interim" plan for the state. (There was, as is, some urgency, as Texas's elections are impending. Texas has an unusually early primary, which it agreed to push back as long as maps are in place by February 1.) Texas appealed, and the Supreme Court put the case on the fast track.
In briefing, Texas argued that the Texas court should have granted deference to its plan--the one that's pending preclearance. The plaintiffs and U.S. government argued that the court rightfully drew its own maps and owed no deference to a yet-to-be-precleared map by a covered jurisdiction. Chief Justice Roberts put the core problem this way:
One, you cannot assume that the legislature's plan should be treated as if it were precleared. The district court in Texas cannot assume or presume what the district court here in D.C. is going to do.
But on the other hand, it can't presume it the other way. In other words, it can't draw its interim plan assuming that there are going to be these section 5 violations, because that's presuming what the Court's going to do the other way. So how do we decide between those two--you have two wrong choices. How do we end up?
The choice for the Court is not necessarily binary--as between the Texas plan and the Texas court's plan--but if it wants to explore third options, it'll need to move very quickly, or put the Texas primaries back even further.
In briefing, nobody took on the Texas court's authority to draw its own map at all, and nobody took on congressional authority to enact Section 5 of the VRA, requiring preclearance in the first place (although Texas pushed in this direction in its reply brief).
At oral argument yesterday, Justices Sotomayor and Ginsburg came right to the point, pressing Paul Clement (arguing for Texas) on the state's position that the Texas court should have granted complete deference to Texas's plan, even as preclearance was pending in the D.C. court. Justice Kagan approached the question in a different way, asking whether the state's position meant that the Texas court should just mimic what it thought the D.C. court would do. Through both lines of questions, Clement stuck to his position--that the Texas court should defer to Texas's plan--arguing that the D.C. court was likely to indicate that at least part of the Texas plan satisfied the Section 5 standard, and then, under Upham v. Seamon, the Texas court should grant deference to the whole thing.
Justice Alito quickly moved to the pragmatic, asking how Texas would feel moving its primary back yet further to deal with the case. Or, more precisely: Would Texas prefer the Court to deal quickly with a binary choice (leaving the primaries where they are), or would Texas accept a delayed primary to allow the Court to fully explore third options? Clement's answer suggested that Texas would be fine with a delayed primary.
Clement offered two districts to illustrate why the Texas court got it wrong. But when pressed, by Justices Breyer and Sotomayor, why the court got it wrong, he couldn't answer, at least not to their satisfaction. Justice Scalia helped out--because the court assumed the validity of the challenges to Texas's plan--but Clement's answer still seemed incomplete.
Justices Alito and Scalia pressed the government, represented by Sri Srinivasan, and the plaintiffs on the inherently political nature of legislative map-drawing--or the inherent policy choices involved in line-drawing--and why the court's maps weren't just as political, or didn't involve similar policy choices, as the Texas legislature's, and why the court therefore shouldn't have preferred the Texas legislature's choices over its own. (Example, from Justice Scalia: The court followed a principle of not dividing any voting districts, but that wasn't an animating principle for the legislature.) Answer: Map-drawing isn't inherently political, and the Texas court used neutral principles in drawing its maps. This didn't seem to assuage the Justices' concerns, for the reason that Justice Scalia suggested with his example. Chief Justice Roberts hit the heart of the problem, for some, in the government's (and plaintiffs') position:
[Y]ou can't treat it as if it's being pre-cleared because that would be prejudging what the court is doing in D.C. But you have no trouble with them saying, assuming that there are going to be these section 5 violations, in drawing additional majority-minority districts, which is just assuming in the other way what the court here in D.C. is going to do.
I don't know how you lean one way and say, it's horrible, you can't use it because it hasn't been precleared, but it's all right in drawing the interim plan to treat it as if preclearance has been denied.
Srinivasan's answer, again: The district court had to "apply traditional districting criteria to the benchmark."
Questioning with the plaintiffs' attorney, Jose Garza, focused on a particular district, district 33, and some on the bench, led by Chief Justice Roberts, suggested that the court drew it as a minority coalition opportunity district, putting two different minority groups together because the court thought they would vote similarly. Garza, helped by Justice Breyer, explained that the court drew the district to reflect population growth in the Dallas-Fort Worth metro area, not to create a district using illegal criteria under the VRA. Justice Kennedy said that he inferred that the court thougth a minority coalition opportunity district was desirable; Garza said it was "fair." Questioning turned again to the pragmatic, considering the impending elections, and ended with Justices Kennedy and Kagan exploring different possible solutions-- respectively offering Judge Smith's plan (the dissent in the Texas court's plan), or some variation; and flipping the burden to Texas in the Section 2 case.
January 10, 2012 in Cases and Case Materials, Courts and Judging, Elections and Voting, Equal Protection, Fourteenth Amendment, Fundamental Rights, Jurisdiction of Federal Courts, News, Oral Argument Analysis | Permalink | Comments (0) | TrackBack (0)
Sunday, January 8, 2012
President Obama's recess appointments last week of Richard Cordray to head the Consumer Financial Protection Board and three new members of the National Labor Relations Board have come under fire for violating a 3-day rule. That is, opponents claim, the period between the Senate's pro forma sessions this month and last is less than three days, and therefore is not a "recess" under the President's recess appointment power. In short, they say, because the Senate is not in "recess," the President lacks authority to appoint without Senate confirmation.
But there's nothing in the Constitution that defines a "recess" as three days or more (or as any other period). The (scant) textual support for opponents' claim comes from Article I, Section 5, Clause 4, the Adjournments Clause, which says that neither chamber can take a break of more than three days without the consent of the other:
Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.
Based on this Clause, the Justice Department wrote in its brief in Mackie v. Clinton (D.D.C. 1993):
If the recess here at issue were of three days or less, a closer question would be presented. The Constitution restricts the Senate's ability to adjourn its session for more than three days without obtaining the consent of the House of Representatives. . . . It might be argued that this means that the Framers did not consider one, two or three day recesses to be constitutionally significant. . . .
Apart from the three-day requirement noted above, the Constitution provides no basis for limiting the recess to a specific number of days. Whatever number of days is deemed required, that number would of necessity be completely arbitrary.
Mackie v. Clinton, 827 F. Supp. 56 (D.D.C. 1993), vacated as moot, 10 F.3d 13 (D.C. Cir. 1993), Memorandum of Points and Authorities in Support of Defendants' Opposition to Plaintiffs' Motion for Partial Summary Judgment, at 24-26 (emphasis added). (Note the difference in language: The Adjournment Clause uses "adjourn"; the Recess Appointment Clause in Article II uses "Recess.")
Thus Article I, Section 5 doesn't plainly require, and the Justice Department's brief doesn't acquiesce to, a 3-day rule. In fact, the President has made recess appointments during recesses of three days or less between sessions at least twice--when President Truman appointed Oswald Ryan to be a member of the Civil Aeronautics Board on January 1, 1949, during a three-day recess, and when President Theodore Roosevelt appointed 160 mostly military officers during a several-hour recess. (In the last 30 years, the shortest recess periods during which a President made a recess appointment were 11 and 10 days: President Reagan made a recess appointment during an 11-day intersession recess, and President Clinton made a recess appointment during a 10-day intrasession recess.) See Henry B. Hogue, Congressional Research Service, Recess Appointments: Frequently Asked Questions.
Despite the lack of support for a 3-day rule, both parties in the Senate in recent years have sought to structure Senate recesses around it, and ran pro forma sessions every three days or less in order to avoid a recess of more than three days and thus, according to their view, deny the President an opportunity to recess appoint. Republicans went a step further this summer, when one group of Republicans from the Senate and another group from the House both wrote to House Speaker Boehner to urge him not to pass any House resolution that would permit the Senate to go into recess for more than three days (under the Adjournment Clause).
What with the obvious political motivations and the pro forma (and not real) sessions, some have claimed that President Obama had authority to recess appoint even in a recess of less than three days. But in truth we need not go so far, because there's only very weak textual support for a 3-day rule, the Justice Department has not acquiesced in a 3-day rule, and past practice cuts against such a rule.
The lack of a 3-day rule wouldn't leave Congress without appropriate checks. It still has the power of the purse, it still has oversight authority, and the Senate still has its advise-and-consent role for non-recess appointments (including those recess appointments that expire and then come up for Senate confirmation, assuming the President doesn't re-recess-appoint, which the President may do). And, of course, Congress can move to change the law.
This last course seems most appropriate here. Senate Republicans never objected principally to Cordray; instead, they held up his confirmation because they objected to the CFPB. The cleanest, most transparent way to change the CFPB, of course, is to try to change the CFPB.
The Congressional Research Service has done some excellent work (as usual) on recess appointments. Check out these:
- Recess Appointments: Frequently Asked Questions
- Recess Appointments Made by President George W. Bush
- Recess Appointments: A Legal Overview
- Recess Appointments of Federal Judges
- Judicial Recess Appointments: A Legal Overview