Thursday, August 1, 2013
In its opinion in Drake v. Filko, a panel of the Third Circuit has rejected a Second Amendment challenge to New Jersey's handgun permit law, N.J.S.A. § 2C:58 - 4. Affirming the district judge, the majority opinion by Judge Ruggero Aldisert (who was appointed to the Third Circuit by President Lyndon Johnson) upheld the statutory "justifiable need” standard for a permit to carry a handgun in public.
The majority declined to "definitively declare that the individual right to bear arms for the purpose of self-defense extends beyond the home, the “core” of the right as identified by Heller," referring to the Supreme Court's controversial 2008 decision of Heller v. District of Columbia finding that the Second Amendment should be interpreted as including an individual right. Yet the majority moved on to assume that even if the individual right extended beyond the home, does a "requirement that applicants demonstrate a “justifiable need” to publicly carry a handgun for self-defense burdens conduct within the scope of that Second Amendment guarantee. It concluded that the “justifiable need” standard of the Handgun Permit Law is a longstanding regulation that enjoys presumptive constitutionality under the teachings articulated in Heller, noting that a "close analogue to the New Jersey standard can be found in New York’s permit schema," which was upheld by the Second Circuit as we discussed last November.
The majority acknowledged that this could well settle the matter. But "in this new era of Second Amendment jurisprudence," it decided it was important to proceed to apply the means-end scrutiny under its circuit precedent. And as in most means-end inquiries, the level of scrutiny was a central issue. Predictably, the challengers argued for strict scrutiny, but their argument rested upon an analogy to First Amendment prior restraint doctrine. The court rejected that analogy, canvased the Second Amendmen levels of scrutiny being applied in the circuits, and concluded that "intermediate scrutiny" was the correct standard, and articulated it thusly:
under intermediate scrutiny the government must assert a significant, substantial, or important interest; there must also be a reasonable fit between that asserted interest and the challenged law, such that the law does not burden more conduct than is reasonably necessary.
After an extensive discussion, the majority found that the NJ law satisfied this standard.
In a dissenting opinion as lengthy as the majority opinion, Circuit Judge Thomas Hardiman disagreed with almost every aspect of the majority's well-reasoned opinion. Judge Hardiman argued that the Second Amendment should apply outside the home, argued that NJ's gun restriction was historically not longstanding, and while agreeing that intermediate scrutiny was the correct standard, disagreed that it was satisfied.
While the United States Supreme Court denied certiorari in the Second Circuit opinion upholding NY's limitation on concealed gun laws, a petition for certiorari will most probably be filed in this Third Circuit case. At some point, the Court may again take up the confusing issues left in the wake of its two controversial decisions in Heller v. District of Columbia and McDonald v. City of Chicago.
Tuesday, July 23, 2013
The D.C. Circuit struck a congressional act that required the State Department to include "Israel" on the passport of any U.S. citizen born in Jerusalem. The court in Zivotofsky v. Secretary of State ruled that the law interfered with the President's exclusive power to recognize foreign countries.
The case will likely go (back) to the Supreme Court, this time on the merits. This is a significant separation-of-powers case, with important implications, and even if the Court ultimately agrees with the D.C. Circuit, it'll almost certainly want to put its own stamp on the substantive questions.
The problem was that long-standing State Department policy and practice did not recognize Jerusalem as part of Israel. The Foreign Affairs Manual, the State Department regs, reflected this, saying that passports issued to U.S. citizens born in Jerusalem should use just "Jerusalem" as the place of birth, not "Jerusalem, Israel," or "Israel."
Congress moved to direct the State Department to use "Israel," however, as part of its broader effort in 2002 to change U.S. foreign policy and identify Jerusalem as the capital of Israel. President Bush signed the larger bill, but issued a signing statement on those portions of the bill, including the portion that required the use of "Israel" on passports of U.S. citizens born in Jerusalem, saying that those portions interfered with the President's foreign affairs powers.
Zivotofsky was born in Jerusalem to U.S. citizens. His parents sought to designate his place of birth as "Jerusalem, Israel," on his passport, but the State Department refused. The Zivotofskys sued, and after going up and back to the Supreme Court, the case landed again in the D.C. Circuit.
The D.C. Circuit started with the so-called recognition power--the power to recognize foreign countries. The court reviewed the original intent, early and later practices, and Supreme Court rulings on the recognition power and found that it belonged to the President alone. (It found original intent inconclusive, however.)
It said that Congress's attempt to require the use of "Israel" interfered with that power and thus struck the provision.
The court rejected Zivotofsky's argument that Congress has a "passport power" that it properly exercised here. The court said that, whatever the extent of its passport power, Congress was quite obviously trying to do more than just regulate the contents of passports here: it was trying to set U.S. foreign policy. The court said that this interfered with the President's power to recognize foreign countries.
The court also rejected Zivotofsky's argument that the use of "Israel" didn't affect foreign affairs or recognition, because the State Department used the country-of-birth simply to identify the passport holder. The court said that the State Department said that this would affect foreign affairs, and that it's not the court's place to second-guess the executive branch on this.
(The court also said that President Bush's signing statement was irrelevant to its analysis, and that Zivotofsky's argument that the State Department policy discriminates against supporters of Israel was waived.)
Judge Tatel, concurring, came to the same conclusion, but started with the passport power. Judge Tatel argued that the passport power, whatever it is, can't interfere with the President's recognition power.
July 23, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Foreign Affairs, International, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
In a fifteen page opinion, federal district judge Timothy Black enjoined the application of Ohio's state DOMA provisions - - - both statutory and the state constitutional amendment - - - to a same-sex couple married out of state. In Obergefell v. Kasich, the judge adapted the reasoning of the United States Supreme Court's June opinion in Court's United States v. Windsor, declaring section 3 of the federal Defense of Marriage Act, DOMA unconstitutional. Judge Black's opinion is part of the aftermath of Windsor that we most recently discussed here.
Judge Black's opinion has a succinct discussion of equal protection doctrine and concludes,
Under Supreme Court jurisprudence, states are free to determine conditions for valid marriages, but these restrictions must be supported by legitimate state purposes because they infringe on important liberty interests around marriage and intimate relations.
In derogation of law, the Ohio scheme has unjustifiably created two tiers of couples: (1) opposite-sex married couples legally married in other states; and (2) same-sex married couples legally married in other states. This lack of equal protection of law is fatal.
Judge Black's opinion has a brief explicit mention of "animus," but the concept permeates the opinion. For example, he notes that before the state enacted its DOMA provisions:
Longstanding Ohio law has been clear: a marriage solemnized outside of Ohio is valid in Ohio if it is valid where solemnized. This legal approach is firmly rooted in the longstanding legal principle of “lex loci contractus” -- i.e., the law of the place of the contracting controls. Ohio has adopted this legal approach from its inception as a State.
Thus, for example, under Ohio law, as declared by the Supreme Court of Ohio in 1958, out-of-state marriages between first cousins are recognized by Ohio, even though Ohio law does not authorize marriages between first cousins.
To be sure, the injunction is a limited one applicable to sympathetic facts. One of the partners is a hospice patient and the relief requested regards the martial status and surviving spouse to be recorded on the death certificate. Yet Judge Black's reasoning is not limited and opens the door to rulings that Ohio's DOMA provisions limiting state recognition of marriages to only opposite-sex marriages fails constitutional scrutiny under the Fourteenth Amendment's equal protection clause.
July 23, 2013 in Courts and Judging, Current Affairs, Equal Protection, Family, Federalism, Fourteenth Amendment, Full Faith and Credit Clause, Opinion Analysis, Recent Cases, Sexual Orientation, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)
Monday, July 22, 2013
In its opinion in United States v. Sterling, with James Risen as Intervernor, a sharply divided Fourth Circuit panel declared there was no First Amendment right - - - or common law privilege - - - for a reporter to resist a subpoena to reveal the identity of a source.
The underlying controversy involves James Risen's book, State of War: The Secret History of the CIA and the Bush Administration and the prosecution of former CIA agent Jeffrey Sterling for various crimes related to his revealtions of classified information. As Chief Fourth Circuit Judge William Traxler, writing for the panel majority on this issue, describes it,
Chapter 9 of the book, entitled “A Rogue Operation,” reveals details about Classified Program No. 1. J.S.A. 219-32. In the book, Risen entitled the program “Operation Merlin” and described it as a “failed attempt by the CIA to have a former Russian scientist provide flawed nuclear weapon blueprints to Iran.” J.A. 722. Risen does not reveal his sources for the classified information in Chapter 9, nor has he indicated whether he had more than one source. However, much of the chapter is told from the point of view of a CIA case officer responsible for handling Human Asset No. 1. The chapter also describes two classified meetings at which Sterling was the only common attendee.
While the opinion involves two other issues, involving the suppression of the testimony of two other government witnesses and the withholding of the identities of several covert CIA operatives under the Classified Information Procedures Act (“CIPA”), 18 U.S.C. app. 3 - - - issues on which Chief Judge Traxler wrote a concurring and dissenting opinion - - - the nonexistence of a reporters' privilege is the most central from a constitutional perspective. The majority opinion was unequivocal:
There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.
The majority reasoned that this result was mandated by the United States Supreme Court's 1972 opinion in Branzburg v. Hayes. It did not credit the argument that Justice Powell’s concurring opinion in Branzburg made Branzburg's holding less clear. Instead, it rejected Risen's contention that Powell's concurrence "should instead be interpreted as a tacit endorsement of Justice Stewart’s dissenting opinion, which argued in favor of recognizing a First Amendment privilege in criminal cases that could be overcome only if the government carries the heavy burden of establishing a compelling interest or need." The majority stated that just as in Branzburg, Risen has
“direct information . . . concerning the commission of serious crimes.” Branzburg, 408 U.S. at 709. Indeed, he can provide the only first-hand account of the commission of a most serious crime indicted by the grand jury –- the illegal disclosure of classified, national security information by one who was entrusted by our government to protect national security, but who is charged with having endangered it instead.
That the crime is the leak itself does not seem to be noteworthy. The majority likewise rejected the notion that there was any common law privilege.
For Judge Robert Gregory, dissenting, principles of a free press as expressed in the First Amendment should include a reporter's privilege, that should then be evaluated under a balancing test:
Protecting the reporter’s privilege ensures the informed public discussion of important moral, legal, and strategic issues. Public debate helps our government act in accordance with our Constitution and our values. Given the unprecedented volume of information available in the digital age – including information considered classified – it is important for journalists to have the ability to elicit and convey to the public an informed narrative filled with detail and context. Such reporting is critical to the way our citizens obtain information about what is being done in their name by the government.
For Judge Gregory, Justice Powell's concurring opinion modifies the holding of Branzburg. Recognizing that the "full import of Justice Powell’s concurrence continues to be debated," Judge Gregory notes that appellate courts have subsequently hewed closer to Justice Powell’s concurrence – and Justice Stewart’s dissent – than to the majority opinion, and a number of courts have since recognized a qualified reporter’s privilege, often utilizing a three-part balancing test." He thus finds it "sad" that the majority "departs from Justice Powell’s Branzburg concurrence and our established precedent to announce for the first time that the First Amendment provides no protection for reporters." Judge Gregory would also recognize a "common law privilege protecting a reporter’s sources pursuant to Federal Rule of Evidence 501."
While there are statutory proposals and provisions aplenty, the continuing confusion over the meaning of Branzburg and the existence of a reporter's First Amendment or even common right to retain confidentiality of sources does call for resolution. The Fourt Circuit's divided opinion squarely presents the issue for the Supreme Court .
Friday, July 19, 2013
Justice John Paul Stevens in the New York Review of Books writes a thoughtful "dissent" in the Court's ruling in Shelby County around his review of Gary May's outstanding book Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy (Basic). Justice Stevens's piece is mostly an indictment of Chief Justice Roberts's majority opinion in Shelby County, based on some of May's study of voting discrimination; but he also has quite kind things to say (and justifiably so) about May's excellent history. (Our posts on Shelby County itself are collected here.)
Justice Stevens writes that May takes a longer, more detailed view of the history of voting than Chief Justice Roberts did in Shelby County--a view that Justice Ginsburg also took in her dissent in that case. He notes that Chief Justice Roberts didn't even mention anything before 1890 in his opinion, and glossed over significant details since.
And Justice Stevens takes on Chief Justice Roberts's new-found doctrine of "equal state sovereignty"--a doctrine that drove a good part of the result. Justice Stevens says that unequal treatment of states is woven right in to the fabric of the Constitution itself. In particular, the three-fifths clause gave southern states a "slave bonus" in political power, giving those states disproportionate representation and even leading to the election of Thomas Jefferson over John Adams in 1800. If the original text of the Constitution itself can treat states so dramatically differently, why this new doctrine of equal state sovereignty? (We posted on this new doctrine here.) (It can be no answer that the Reconstruction Amendments abolished the three-fifths counting system, for the Reconstruction Amendments themselves were specifically designed to give Congress power over the states, and led to dramatically different treatment of the states. It similarly can be no answer that the Tenth and Eleventh Amendments protect state sovereignty (even if they do), because the Reconstruction Amendments came after them. As last-in-time, they at least inform the meaning of the earlier amendments, even if they don't do away with them entirely.)
July 19, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Elections and Voting, Federalism, Fifteenth Amendment, History, News, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)
Thursday, July 18, 2013
Judge Rosemary M. Collyer (D.D.C.) earlier this week rejected hunger-striking Guantanamo detainees' suit for an injunction against the government to stop it from force-feeding them. The ruling in Aamer v. Obama is the second recent case coming out of the federal courts rejecting an anti-force-feeding claim. Here's our post on the first.
Judge Collyer, like Judge Kessler in the earlier case, ruled that the court lacked jurisdiction under 28 U.S.C. Sec. 2241(e)(2), which deprives courts of jurisdiction to hear an action related to "any aspect of the detention, transfer, treatment, trial, or conditions of confinement" of an alien detainee at Guantanamo.
Judge Collyer went on to address the merits, too. She wrote that the government is "responsible for taking reasonable steps to guarantee the safety of inmates in their charge," that there is no right to suicide or assisted suicide, and that the government has a legitimate penological interest in preventing suicide. Moreover, she wrote that the government has put controls in place so that the procedure really isn't so bad, and that the government made adjustments to the force-feeding schedule for the Ramadan fast.
July 18, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Fundamental Rights, Habeas Corpus, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
Wednesday, July 17, 2013
Scott Bombay, over at Constitution Daily, reports on a recent order of the Foreign Intelligence Surveillance Court, or FISC, directing the Justice Department to conduct a "declassification review" of a April 25, 2008, ruling and legal briefs involving Yahoo! The move could lead to release of documents that reveal some of the FISC's secret workings--in particular, according to Yahoo!, "how the parties and the Court vetted the Government's arguments supporting the use of directives" to gather information about subscribers without their knowledge. (Yahoo!'s interest is in showing that it vigorously defended its users' privacy.)
But Bombay notes that when the Justice Department finishes its classification job, there may not be much left of the ruling or the briefs to help us understand much of anything.
FISC Presiding Judge Reggie Walton ordered the Justice Department to report back to him by July 29 about when the documents could be ready for public inspection.
Tuesday, July 16, 2013
More on the Aftermath of Windsor (DOMA) and Perry (Prop 8) decisions: California, Pennsylvania, Arkansas, North Carolina Litigation
The Court's decisions in United States v. Windsor, declaring section 3 of DOMA unconstitutional, and Perry v. Hollingsworth, holding that the "proponents" of Proposition 8 lacked standing to appeal a federal judge's declaration of Prop 8's unconstitutionality, have not settled the matter of the unconstitutionality of same-sex marriage restrictions.
In what promises to be a continuing series, here are a few highlights:
In California, the home of Proposition 8, the litigation centers on Prop 8's constitutional status given that the Supreme Court held that the proponents did not have standing to appeal the federal district judge's holding that Prop 8 made a sexual orientation classification that does not satisfy the rational basis standard and thus violates the Equal Protection Clause. The original injunction was stayed, and again stayed by the Ninth Circuit even as it affirmed the district judge, but after Perry, the Ninth Circuit dissolved the stay amid questions about the effect of Perry which we discussed here.
The proponents of Prop 8 have moved (back) to the state courts, filing Hollingsworth v. O'Connell on July 12 seeking a stay from the California Supreme Court. Their basic argument is that a single federal judge should not have the power to declare a law unconstitutional for the entire state and they seek a mandate forbidding county clerks from issuing same-sex marriage licenses. On July 16, the California Supreme Court declared - - - as a docket entry and without opinion - - - "The request for an immediate stay or injunctive relief is denied." It also granted the motions for counsel to proceed pro hac vice, so the case will presumably be moving forward.
In Pennsylvania, a complaint in Whitewood v. Corbett was filed July 9, as a new constitutional challenge to the state's "little DOMA" provisions passed the same year as the federal DOMA, 1996 - - - 23 Pa. Consolidated Statute §1102 (defining marriage as between one man and one woman) and 23 Pa. Consolidated Statutes §1704 (declaring one man-one woman marriage as the strong public policy of state and refusing to recognizing same-sex out of state marriages). The Complaint interestingly quotes and cites language from Windsor several times. For example:
¶10. The exclusion from marriage undermines the plaintiff couples' ability to achieve their life goals and dreams, threatens their mutual economic stability, and denies them "a dignity and status of immense import." United States v.Windsor, No.12-307, Slip Op., at 18 (U.S. June 26, 2013). Moreover, they and their children are stigmatized and relegated to a second class status by being barred from marriage. The exclusion "tells[same-sex couples and all the world- that their relationships are unworthy" of recognition. Id. at 22-23. And it "humiliates the ...children now being raised by same-sex couples" and "makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives." Id. at 23.
The Attorney General for Pennsylvania, Kathleen Kane, has reportedly declared she will not defend the constitutionality of the state statutes barring same-sex marriage. The Pennsylvania Governor, Tom Corbett, the named defendant and a Republican, as well as the state legislature, are presumably studying the holding regarding BLAG's standing in Windsor.
In Arkansas, the complaint in Wright v. Arkansas was filed in state court on July 2. Arkansas has both a statute and constitutional amendment DOMA (the belt and suspenders approach). The 29 page complaint does not quote or cite Windsor, but does claim that the Arkansas prohibition of same-sex marriage violates the Due Process and Equal Protection Clauses of both the state and federal constitution, as well as violating the Full Faith and Credit Clause. First reports are that the state will defend the lawsuit.
In addition to new complaints filed post-Windsor (Perry), ongoing litigation will certainly be changed. For example, the North Carolina federal court complaint in Fisher-Borne v. Smith challenging North Carolina's failure to provide so-called second-parent adoption is being amended - - - reportedly with agreement of the state - - - to include a claim challenging the state's prohibition of same-sex marriage.
While one message of Windsor and even Perry could be understood as being that marriage, same-sex or otherwise, is a matter of state law, another message of Windsor is certainly that there are constitutional problems prohibiting same-sex marriage.
With a patchwork of state laws, this is a fertile landscape for continuing litigation.
[all images Wikimedia; final image here]
July 16, 2013 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fifth Amendment, Fourteenth Amendment, Interpretation, News, Recent Cases, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Thursday, July 11, 2013
For many around the world, the U.S. Constitution is no longer the gold standard. That's because more recent constitutions, like South Africa's, contain a broader set of individual rights. (And those rights are often better theorized, to boot.)
But Drew F. Cohen argues in U.S. News that the Supreme Court's recent ruling in Windsor, striking the federal definition of marriage under DOMA as only between one man and one woman, may help change that. Cohen, a law clerk for the Chief Justice of the South African Constitutional Court, writes, "The decision to overturn the Defense of Marriage Act, however, has an uncanny potential to realign the U.S. constitution with the emerging international concensus on human rights issues and recast it as a modern source of jurisprudential power."
Wednesday, July 10, 2013
The Foreign Intelligence Surveillance Court, or FISC, has come under increasing scrutiny in recent weeks, after Edward Snowden leaked an order of that court directing Verizon to turn over "comprehensive communications routing information" to the NSA. We posted here on EPIC's petition to the Supreme Court to overturn that order.
In particular, critics are taking aim at the FISC's secrecy, the un-adversarial nature of its proceedings, and the appointment process for its judges. (The FISC's decisions, though tremendously important, are classified; only the government, and not private individuals subject to surveillance, gets to make arguments to the FISC; and the Chief Justice alone appoints and details sitting federal judges to the FISC.)
Eric Lichtblau framed some of the issues last week in the NYT, and Orin Kerr reacted on Volokh. The WSJ reported on the expanding definition of "relevant" in the FISC's jurisprudence--important because under federal law the FISC can order the production of tangible things that are "relevant to an authorized investigation." That question--how far does "relevant" extend--is front-and-center in EPIC's petition at the Supreme Court.
Bloomberg editors took aim at the FISC's "missing checks and balances," adopting a recommendation by Kerr that an independent office in DOJ should advocate for privacy at the FISC, in order to create some measure of adversity before the court. Bloomberg editors also recommended changing the appointment process--a recommendation echoed at Bloomberg by Noah Feldman and Ezra Klein. In particular, critics worry that the current method of appointment could lead to a kind of group-think among judges on the FISC--a worry that seems supported by the government's breathtaking success rate at the court.
There is some legislation in Congress to address these concerns, one way or another. For example, H.R. 2440, the FISA Court in the Sunshine Act of 2013, would require the disclosure of FISC decisions, or an explanation why they can't be disclosed. H.R. 2475, the Ending Secret Law Act, and S. 1130, would do the same thing. H.R. 2586, the FISA Court Accountability Act, would provide for the appointment of FISC judges by the Chief Justice and by congressional leaders.
Monday, July 8, 2013
The Electronic Privacy Information Center, or EPIC, today asked the Supreme Court to vacate the order of the Foreign Intelligence Surveillance Court, or FISC, compelling the disclosure of domestic phone records by Verizon. We previously posted on the FISC order here.
EPIC filed a petition for a writ of mandamus directly with the Supreme Court, bypassing the usual route through the lower courts, because of the unique nature of the FISC order. EPIC claims that FISC Judge Roger Vinson ordered the disclosure of domestic phone records in violation of the FISC's statutory authority under the Foreign Intelligence Surveillance Act, or FISA. But EPIC says that under the FISA, the only court that can reverse Judge Vinson's order is the Supreme Court. Moreover, the order creates exceptional circumstances relating to the invasion of privacy, privileged communications, and the First Amendment that warrant mandamus relief. Thus, the mandamus petition.
On the merits, EPIC argues that Judge Vinson exceeded his authority under FISA:
[T]he FISC issued an order requiring disclosure of records for all telephone communications "wholly within the United States, including local telephone calls." The Business Records provision does not enable this type of domestic programmatic surveillance.
Specifically, the statute requires that production orders be supported by "reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation. . . . ." 50 U.S.C. Sec. 1861(b)(2)(A). It is simply unreasonable to conclude that all telephone records for all Verizon customers in the United States could be relevant to an investigation. Thus, the FISC simply "ha[d] no judicial power to do what it purport[ed] to do."
Petition at 18.
EPIC also argues that the order violates the separation of powers, insofar as it compels the disclosure of phone records of the judicial and legislative branches to the executive branch.
July 8, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
Wednesday, July 3, 2013
The Fourth Circuit en banc today issued its opinion in Greater Baltimore Center for Pregnancy Concerns, Incorporated v. Mayor and City Council of Baltimore reversing the district court's granting of a preliminary injunction against the ordinance requiring a limited-service pregnancy center "provide its clients and potential clients with a disclaimer substantially to the effect that the center does not provide or make referral for abortion or birth-control services." Essentially, the city's concern is that certain pregnancy centers can be mistaken (or even masquerade as) reproductive medical centers but only offer specific counseling that women not terminate their pregnancies.
The challengers argued that the ordinance was facially unconstitutional under the First Amendment and the district judge granted summary judgment in their favor. For the en banc majority, however, "the summary judgment decision was laden with error, in that the court denied the defendants essential discovery and otherwise disregarded basic rules of civil procedure."
The majority opinion, authored by Judge King, in which Chief Judge Traxler and Judges Motz, Duncan, Keenan, Wynn, Floyd, and Thacker joined, stressed that its conclusion was procedural and that it did not express a view on the ultimate merits. Nevertheless, as in most cases, the merits and procedural issues are intertwined. For example, one of the crucial issues here is whether the speech being regulated is commercial or not. As the majority stated,
The district court’s denial of discovery and failure to adhere to the summary judgment standard marred its assessment of, inter alia, the City’s contention that the Ordinance targets misleading commercial speech and thus is subject to rational basis (rather than strict) scrutiny. While the strict scrutiny standard generally applies to content-based regulations, including compelled speech, see Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641-42 (1994), less-demanding standards apply where the speech at issue is commercial. Disclosure requirements aimed at misleading commercial speech need only survive rational basis scrutiny, by being “reasonably related to the State’s interest in preventing deception of consumers.” Zauderer v. Office of Disciplinary Counsel of the Supreme Court, 471 U.S. 626, 651 (1985) (explaining that, “because disclosure requirements trench much more narrowly on an advertiser’s interests than do flat prohibitions on speech, warnings or disclaimers might be appropriately required in order to dissipate the possibility of consumer confusion or deception” (alterations and internal quotation marks omitted)); accord Milavetz, Gallop & Milavetz, P.A. v. United States, 130 S. Ct. 1324, 1339-40 (2010).
There are two dissenting opinions. The first, by Judge Wilkinson, derides the majority for failing to acknowledge "the dangers of state-compelled speech." He notes that the Supreme Court "only recently reiterated" the importance of the doctrine in Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., the prostitution pledge case. Wilkinson accuses the majority of being enchanted with "extended procedures" and argues that it only authorizes a "fishing expedition" against the plaintiffs. The second dissent, authored by Judge Niemeyer, and joined by Judges Shedd, and Agee, as well as Wilkinson, contends that the ordinance governs noncommercial speech, mandates specific speech, and should be subject to strict scrutiny.
The judges did agree - - - amongst themselves and with the district judge - - - that St. Brigid’s Roman Catholic Congregation Incorporated and Archbishop William E. Lori lacked standing to be co-plaintiffs, but this issue is a divisive one. Indeed, there is an overdue Second Circuit panel opinion in the appeal of a district judge's conclusion that NYC's similar Local Law 17 was unconstitutional.
Moreover, the First Amendment challenges to pregnancy center "disclosures" as compelled speech mirror the First Amendment challenges to abortion provider "disclosures" as compelled speech, as in statutes from Kansas and South Dakota. The government's interest in preventing "misleading" speech or in providing full disclosure is exceedingly similar in both situations.
For scholars (including student scholars) looking for a terrific topic combining the First Amendment and reproductive rights, theses cases offer much.
Tuesday, July 2, 2013
Last Term's opinions - - - especially its opinions regarding the constitutionality of the VRA in Shelby, of DOMA and Prop 8 in Windsor and Perry, and of UT's affirmative action plan in Fisher - - - continue to spark debate and commentary. As well they should. But much of our discussions focus on individual Justices: Is Justice Kennedy the "first gay Justice?" Is Justice Alito really rude? Is Chief Justice Roberts playing a "long game?" And what about the tumblr "Notorious R.B.G.? Or @SCOTUS_Scalia, a twitter account?
In their 2010 law review article, Judicial Duty and the Supreme Court’s Cult of Celebrity, available on ssrn, Craig Lerner and Nelson Lund observed that there was a huge dissonance between the personality portrayed in confirmation hearings and the outsized personality on the bench and suggested four Congressional reforms. Their first proposal:
Congress should require that all Supreme Court opinions, including concurrences and dissents, be issued anonymously. This should lead to fewer self-indulgent separate opinions, more coherent and judicious majority opinions, and more reason for future Justices to treat the resulting precedents respectfully.
They contend, "[t]ruly unpretentious judicial servants should have no need to put their personal stamp on the law, and the practice of doing so has contributed to unnecessary and unhealthy flamboyance in the Court’s work."
Their article contains an excellent discussion of the problem of "celebrity," but little discussion of the constitutionality of a Congressional mandate for anonymity or for their other proposals. Certainly, should the anonymity proposal be enacted, there would be a constitutional separation of powers challenge. Although who would have standing? And what about recusal?
[image DonkeyHotey via]
July 2, 2013 in Affirmative Action, Cases and Case Materials, Congressional Authority, Courts and Judging, Current Affairs, Elections and Voting, Equal Protection, Gender, Interpretation, Race, Recent Cases, Reconstruction Era Amendments, Scholarship, Sexual Orientation, Standing, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)
Friday, June 28, 2013
The order provides in full:
The stay in the above matter is dissolved effective immediately.
Thus, as we discussed here, it looks as if Proposition 8 is unconstitutional in California and same-sex marriages are valid.
As we reported shortly after the Court released its opinion in Shelby County v. Holder, striking the coverage formula for preclearance under the Voting Rights Act, Chief Justice Roberts's majority opinion relied heavily on the newly minted doctrine of equal state sovereignty. That doctrine, argues Judge Richard Posner (7th Cir.) at Slate, doesn't exist:
Shelby County v. Holder, decided Tuesday, struck down a key part of the Voting Rights Act (the part requiring certain states with a history of racial discrimination in voting to obtain federal permission in advance to change their voting procedures--called "preclearance") as violating the "fundamental principle of equal sovereignty" of the states. This is a principle of constitutional law of which I had never heard--for the excellent reason that . . . there is no such principle.
So where does this principle come from? It comes from Chief Justice Roberts's majority opinion in Northwest Austin Municipal Utility District Number One v. Holder, the 2009 case holding that NAMUDNO can bail out of preclearance and thus dodging the constitutional question whether Congress had authority to reauthorize preclearance in 2006.
In NAMUDNO, as traced in the pieces linked above, Chief Justice Roberts worried about the "federalism costs" of preclearance, including its intrusion on equal state sovereignty. But he failed to mention that the principle of equal state sovereignty previously applied only to the conditions upon which states were admitted to the Union, and not to day-to-day treatment of the states by Congress, much less congressional treatment of the states under the enforcement power in the Reconstruction Amendments. Justices Stevens, Souter, Ginsburg, and Breyer all signed on to that opinion.
Chief Justice Roberts picked up that NAMUDNO language in Shelby County and ran with it. He also poked Justices Ginsburg and Breyer for signing on to NAMUDNO but dissenting in Shelby County (in part because they said that there is no general doctrine of equal state sovereignty).
This is but one example of the way that Chief Justice Roberts has slowly pulled the Court to the right, argues Adam Liptak in today's NYT--an article well worth reading, whether you think the argument is too strong, too weak, or just right. It involves a slow, patient approach to changing the doctrine--by first writing relatively benign opinions (and gaining the votes of the more liberal Justices) but that nevertheless include potentially explosive language (like the reference in NAMUDNO to the doctrine of equal state sovereignty), then later citing that language (and the fact that the more liberal members signed on) in much, much bigger cases (like Shelby County).
In the wake of the Court's decisions in United States v. Windsor, declaring section 3 of DOMA unconstitutional, and Perry v. Hollingsworth, holding that the "proponents" of Proposition 8 lacked standing to appeal a federal judge's declaration of Prop 8's unconstitutionality, many questions remain.
The first question is the status of Proposition 8. Recall that the federal district judge held Prop 8 made a sexual orientation classification that does not satisfy the rational basis standard and thus violates the Equal Protection Clause. The district judge's opinion enjoined the enforcement of Proposition 8, an injunction which he then stayed. Chief Judge Roberts' majority opinion in Perry describes district judge Walker's order as being broad:
"After a 12-day bench trial, the District Court declared Proposition 8 uncon- stitutional, permanently enjoining the California officials named as defendants from enforcing the law, and “direct- ing the official defendants that all persons under their control or supervision” shall not enforce it. Perry v. Schwarzenegger, 704 F.Supp. 2d 921, 1004 (ND Cal. 2010).
Received copy of Supreme Court opinion dated 06/26/2013. The judgment or mandate of this Court will not issue for at least twenty-five days pursuant to Rule 45. Should a petition for rehearing be filed timely, the judgment or mandate will be further stayed pending this Court's action on the petition for rehearing. Supreme Court No: 12-144.  [10-16696, 11-16577].
One of the best discussions of this issue is by ConLawProf Marty Lederman over at SCOTUSblog. Lederman asks "even if Judge Walker’s injunction should have been limited to the protection of the plaintiffs before him—so what? That injunction nevertheless governs the case, and it will be operative, regardless of whether it should have been more tailored." He concludes that Justice Kennedy, dissenting in Perry will be proven correct that “the Court’s opinion today means that a single district court can make a decision with far-reaching effects that cannot be reviewed.”
The second question is one that is being voiced less, but is worth considering: Why are there no opinions by Justices Sotomayor, Ginsburg, Kagan, and Breyer? Justice Ginsburg, who made headlines with her "skim milk" comment during oral argument in Windsor, could have effectively written a concurring opinion that might have counter-balanced some of the arguments in Alito's separate dissenting opinion regarding the function of marriage. ConLawProf David Cohen over at FeministLawProfessors ConLawProf argues that the lack of opinions matters:
By remaining silent, not only are the liberal Justices depriving us from learning their particular views, but they are depriving future litigants the opportunity to use their strong reasoning to further their cause. After all, the logic in today’s concurring opinions often becomes the logic in tomorrow’s majority opinion.
It might be added that perhaps one of these Justices could have provided a rigorous equal protection analysis.
There are certainly more questions raised by Windsor and Perry, but these two are central.
June 28, 2013 in Courts and Judging, Current Affairs, Equal Protection, Federalism, Fourteenth Amendment, Interpretation, Jurisdiction of Federal Courts, Recent Cases, Sexual Orientation, Teaching Tips, Theory | Permalink | Comments (1) | TrackBack (0)
Tuesday, June 25, 2013
ConLawProf Garrett Epps over at The Atlantic calls Alito's performance a "mini-tantrum," that although silent (and thus not recorded in transcript or audio) was "clear to all with eyes, and brought gasps from more than one person in the audience."
And in the Washington Post, Dana Millbanks writes that "Alito visibly mocked his colleague" and "shook his head from side to side in disagreement, rolled his eyes and looked at the ceiling."
Alito's actions were prompted by Justice Ginsburg's statements regarding her dissents in two employment cases, Vance v. Ball State University, which Alito had authored and rendered from the bench, and University of Texas Southwestern Medical Center v. Nassar.
Both Epps and Millbank not only note Alito's disrepect for a colleague, but point out the gendered nature of his actions. Millbank goes further and notes that he had earlier witnessed Alito's demonstration of "disdain for Elena Kagan and Sonia Sotomayor, the two other women on the court."
Epps compares Alito's actions to a highschooler: Alito looked like the character in the movie "Fast Times at Ridgemont High, signaling to the homies his contempt for Ray Walston as the bothersome history teacher, Mr. Hand." Millbank places Alito below the high school range, contended that Alito "frequently supplements words with middle-school gestures."
Perhaps the Chief Justice needs to have a conversation with Associate Justice Alito? He might be guided by the experience of many law professors who routinely teach professionalism, including not rolling one's eyes at statements by colleagues.
The Rudest Justice in Slate (June 27);
Alito's Demeanor Inspires Push to Make Court Follow Code in National Law Journal (July 1) (paywall).
Sunday, June 23, 2013
A divided Second Circuit panel upheld the conviction of Harold Turner in its opinion in United States v. Turner for threats in a blog post against Seventh Circuit Judges Easterbrook, Bauer, and Posner. Turner objected to the judges' ruling in National Rifle Association of America v. Chicago holding that the Second Amendment was not incorporated as to the states (and municipalities), later reversed by the United States Supreme Court in McDonald v. City of Chicago.
killing of family members of United States District Judge Joan Lefkow in 2005.
The jury was instructed as to the First Amendment and nevertheless convicted. The panel majority concluded "based on an independent review of the record that the core constitutional fact of a true threat was amply established, and that Turner’s conduct was unprotected by the First Amendment."
Among Turner's arguments that his blog statements did not constitute a "true threat" was his use of the passive voice. For the majority, this was overly technical and belied the other statements regarding the location of these judges and the killing of another judge's family members. Syntax could be important - - - but not here.
Dissenting Judge Rosemary Pooler - - - who, coincidentally, was a member of a Second Circuit panel (along with Sonia Sotomayor) holding that the Second Amendment was not incorporated against the states - - -carefully considered the "true threats" doctrine as compared to incitement/advocacy doctrines. For Pooler,
Turner’s communications were advocacy of the use of force and not a threat. It is clear that Turner wished for the deaths of Judges Easterbrook, Posner, and Bauer. But I read his statements, made in the passive voice, as an exhortation toward “free men willing to walk up to them and kill them” and not as a warning of planned violence directed toward the intended victims. This reading is furthered by the fact that Turner’s words were posted on a blog on a publicly accessible website, and had the trappings of political discourse, invoking Thomas Jefferson’s famous quotation that “[t]he tree of liberty must be replenished from time to time with the blood of tyrants and patriots,” Although vituperative, there is no doubt that this was public political discourse.
[citations omitted]. But Pooler continued that this did not mean that Turner's speech was constitutionally protected. Instead, the question should be whether Turner's speech was an incitement protected - - - or not - - - under Brandenburg v. Ohio (1969). She quotes the district judge on this point but concludes by noting that Turner was not charged under the incitement statute, but only the threat statute.
Judge Pooler seems to have the better view here, as the blog post was not directed to the persons threatened but exhorted others to act. But the majority would view such a construction as overly technical.
Saturday, June 22, 2013
Andrew Cohen at The Atlantic argues that we all do. (H/t to Brian Roth.) Cohen says that putting off the Big Four (and seven others) to the last week of June risks confusing the issues for the public--if only because there's not enough time and media space to adequately explore and critically analyze them:
My point is that I believe the Supreme Court doesn't just owe us a more timely resolution of (the increasingly fewer) cases it takes. The justices also owe us all the opportunity to reasonably absorb the decisions they do hand down in a fashion that increases the chances those decisions will be accurately and adequately evaluated as quickly as possible. The sound and fury next week, as the decisions rain down upon us like cicadas, will undermine that possibility. And from an institution that is the least accountable and transparent anyway, that's a shame.
This is an important and correct conclusion, echoed by others. The problem is particularly acute this Term, with four big opinions that overlap in equal protection. We'll all be scrambling to make sense of the individual opinions next week, but also what they say as a body of law on constitutional equality.
But Cohen's important conclusion doesn't depend on his unlikely "(cynical) theory" (also shared by others), that "perhaps it's time to ponder whether the Court is manipulating the timing of the release of its most divisive rulings to massage the impact of those rulings upon the court of public opinion"--that is, that the Court is doing this deliberately. This kind of coordinated and calculated move seems implausible for a Court of nine independent justices, any one of whom might throw a wrench into the works at any time (by, e.g., insisting on modifying an opinion in reaction to a colleague's opinion, or some such). This would require either a remarkable degree of coordination among the nine, or a remarkable degree of defection by a single or small group of justices, all toward the end of undermining public understanding and debate of the Court's work. Whatever else we might say about the Court's foot-dragging, that seems extremely unlikely.
Still, Cohen's exactly right on the effect: issuing these rulings, and others, all in the last week of June, isn't good for for transparency, democratic legitimacy, or public understanding. It isn't good for anyone.
Wednesday, June 19, 2013
Common Cause this week pursued its case against the Senate filibuster at the D.C. Circuit when it filed its appellate brief, arguing that Judge Emmett G. Sullivan (D.D.C.) was wrong to dismiss the case last December and pressing its argument that the filibuster is unconstitutional. Common Cause's press release is here; the brief is here. We posted on Judge Sullivan's decision here.
Recall that Judge Sullivan dismissed the case, Common Cause v. Biden, for lack of standing and for raising a political question. In its brief, Common Cause takes on Judge Sullivan's ruling and argues that the filibuster is unconstitutional.
As to standing, Common Cause argues that House-member-plaintiffs have standing to challenge Senate Rule XXII, the cloture rule that allows a filibuster if the majority can't muster 60 votes to close debate, because the Rule allowed a minority in the Senate to effectively nullify their votes in favor of the DISCLOSE and DREAM Acts. Common Cause relies on language from Raines v. Byrd (1997), which says that "legislators whose votes . . . would have been sufficient to . . . enact a specific legislative Act have standing to sue if that legislative action . . . does not go into effect on the ground that their votes have been completely nullified" by a procedural violation of the Constitution. (In Raines, the Court held that Senator Byrd lacked standing when he mounted a facial challenge to the Line-Item Veto Act but failed to show that his vote on any specific appropriation bill had been nullified by the Act.)
Common Cause also argues that it has standing in its own right, because the filibuster of the DISCLOSE Act frustrated its core mission of campaign reform. It argues that it has standing based on its members, because they cannot learn the identities of certain campaign contributors. And it argues that the "dreamer"-plaintiffs have standing, because the filibuster of the DREAM Act denied them the benefits of that Act.
As to political question, Common Cause says that rules of Congress are justiciable, that they must be constitutional, and that "[t]here is nothing in the record of the Federal Convention indicating that the Framers intended to delegate to either house the authority to depart from the principle of majority rule . . . ." Brief at 15-16.
Finally, on the merits, Common Cause says,
Rule XXII's supermajority vote requirement is inconsistent with the rules of parliamentary practice that preceeded the adoption of the Constitution, the intent of the Framers as reflected in The Federalist Papers, the text of the Quorum and the Presentment Clauses, the exclusive list of exceptions to the principle of majority rule in the Constitution which specify when a supermajority vote is required, the provision of Article I, Sec. 3, cl. 4 that gives the Vice President the power to cast the tie-breaking majority vote when the Senate is "equally divided," and the first rules adopted by the Senate and the House immediately after ratification.
Brief at 56.
June 19, 2013 in Campaign Finance, Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)