Wednesday, January 22, 2014
Senator Patrick Leahy (D-VT) and Representatives Jim Sensenbrenner (R-WI) and John Conyers (D-MI) introduced legislation last week that would amend the Voting Rights Act and recalibrate the coverage formula for preclearance. The legislation responds to the Supreme Court's ruling last summer in Shelby County v. Holder, striking Section 4(b) of the VRA, the coverage formula for the preclearance requirement. That ruling left Section 5 preclearance nearly a dead letter (although litigants could still seek to have a court order a jurisdiction to bail-in to preclearance under Section 3).
The bills would update the coverage formula to include states that have 5 or more voting rights violations during the previous 15 years and political subdivisions that have 3 or more voting rights violations during the previous 15 years. (Coverage would continue for 10 years, unless the jurisdiction gets a court order releasing it.) This new formula would cover Georgia, Louisiana, Misissippi, and Texas, but not Alabama, Arizona, Florida, North Carolina, South Carolina, and Virginia.
The bills also contain a number of other provisions, perhaps most notably expanding Section 3 bail-in so that litigants can ask a court to bail-in a jurisdiction when that jurisdiction has intentionally discriminated (as now) and for any other violation of the VRA. Ari Berman over at The Nation has a nice summary.
The new provisions will undoubtedly be challenged when and if they're enacted. On the one hand, they address a major concern of the Court in Shelby County: they update the coverage formula to use more current violations as the basis for coverage. But on the other hand, they still treat states differently (and potentially run afoul of the Court's new-found "equal sovereignty" doctrine), and the state-wide formula does not account for actual voter turn-out (although the political subdivision formula does) and neither formula addresses the number of elected officials--data that the Court found at least relevant in its ruling.
January 22, 2014 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Race, Recent Cases, Reconstruction Era Amendments | Permalink | Comments (1) | TrackBack (0)
Tuesday, January 21, 2014
Ninth Circuit Extends Batson's Equal Protection Doctrine Regarding Juror Exclusion to Sexual Orientation and Applies "Heightened" Scrutiny
In its opinion today in SmithKline Beecham Corporation (GSK) v. Abbott Laboratories, a unanimous panel of the Ninth Circuit extended the equal protection rule and analysis of Batson v. Kentucky (1986) regarding juror exclusions to those based on sexual orientation.
The underlying dispute between the pharmaceutical companies involved HIV medications and during jury selection the attorneys for Abbott Laboratories "used its first peremptory strike against the only self-identified gay member of the venire." The attorneys for GSK sought to initiate a Batson inquiry on the basis of sexual orientation. The Batson analysis first requires a "prima facie" case of intentional discrimination, after which the striking party must offer a neutral reason for the strike, and then, third and last, the court makes a determination whether there has been an equal protection violation.
The district judge allowed the preemptory strike although said she would "reconsider her ruling if Abbott struck other gay men." While the judge advised Abbott's attorney that “it might be the better part of valor” to reveal the basis for his strike, counsel "replied that he would rely on the grounds given by the judge and further explained, 'I don’t think any of the challenge applies. I have no idea whether he is gay or not.'" Apparently he later "added that he could not have engaged in intentional discrimination because this was only his first strike." After a four week trial, the jury returned a "mixed verdict."
In the opinion authored by Judge Reinhardt, the Ninth Circuit held that there was a "prima facie" sufficient to have triggered the Batson inquiry, and using the record before it, then engaged in the second prong of the Batson analysis, finding that Abbott's counsel did not provide a sufficient explanation.
As to the third prong, the Ninth Circuit panel noted that generally attorneys may "exercise their peremptory challenges to remove from the venire any group or class of individuals normally subject to ‘rational basis’ review." It then stated: "Thus, if sexual orientation is subject to rational basis review, Abbott’s strike does not require reversal."
Judge Reinhardt's opinion for the panel concluded that sexual orientation receives "heightened scrutiny" under equal protection. The opinion turned to "the Supreme Court’s most recent case on the relationship between equal protection and classifications based on sexual orientation": United States v. Windsor (2013), holding that Windsor was "dispositive of the question of the appropriate level of scrutiny in this case," even as the Court's majority opinion in Windsor "did not expressly announce the level of scrutiny it applied to the equal protection claim at issue." Judge Reinhardt correctly noted that the Court in Windsor did not apply a presumption of constitutionality or supply reasons for Congressional action in DOMA.
Windsor scrutiny “requires something more than traditional rational basis review.” Windsor requires that when state action discriminates on the basis of sexual orientation, we must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status. In short, Windsor requires heightened scrutiny.
Thus, the Ninth Circuit's previous precedent applying rational basis to sexual orientation classifications was no longer valid. Applying this heightened scrutiny, the Ninth Circuit found that the peremptory challenge was unconstitutional:
permitting a strike based on sexual orientation would send the false message that gays and lesbians could not be trusted to reason fairly on issues of great import to the community or the nation. Strikes based on preconceived notions of the identities, preferences, and biases of gays and lesbians reinforce and perpetuate these stereotypes.
In sum, the Ninth Circuit's extended Batson to sexual orientation classifications and used the term "heightened scrutiny" to comply with the doctrine that Batson did not apply to classifications that merited rational basis scrutiny.
However, one might be reading too much into the opinion to conclude that the Ninth Circuit has ruled that sexual orientation classifications now merit heightened scrutiny akin to "intermediate scrutiny." Indeed, the Ninth Circuit relies upon the United States Supreme Court's opinion in Windsor which it admits is less than clear about the level of scrutiny - - - and certainly much less clear than the Second Circuit's opinion in Windsor which determined and applied the intermediate level of equal protection scrutiny used in gender/sex classifications.
Instead, it seems that the Ninth Circuit read the "rational basis" exclusion from Batson to be the "mere" rationality test - - - often called the "anything goes" rational basis of Railway Express Agency v. New York (1949) (which the Ninth Circuit panel opinion did not cite) or Fed. Commc’n Comm’n v. Beach Commc’n, Inc. (1993) (which the Ninth Circuit did cite and quote). The "heightened scrutiny" that the Ninth Circuit finds - - - derived from Windsor - - - is akin to the "heightened rational basis" or "rational basis with bite" or "rational basis with teeth" that has become a common feature of equal protection doctrine for sexual orientation classifications. While the Ninth Circuit opinion does not stress "animus," it does discuss Department of Agriculture v. Moreno (1973), including stating that the Ninth Circuit previously "acknowledged that Moreno applied “‘heightened’ scrutiny.”
Certainly, this is an important opinion: it extends Batson to sexual orientation classifications. And it is also important to the litigation between two giant pharmaceutical corporations given that the case was remanded for a new trial. However, it is not a landmark opinion that substantively changes (rather than clarifies or renames) the level of scrutiny for sexual orientation classifications in all equal protection cases.
Monday, January 20, 2014
The New York State Museum has released the only known audio recording of Dr. Martin Luther King Jr.'s 1962 speech commemorating the centennial anniversary of the Preliminary Emancipation Proclamation. The audio was discovered on the "lost technology" of "reel to reel recording" during an ongoing project by the museum to "digitize the thousands of audio and video recordings" in "collections of more than 15 million objects and artifacts."
The audio and other materials area available at the Musuem's website here.
A preview and explanation is in the video below:
Monday, January 13, 2014
The United States Supreme Court in Zablocki v. Redhail (1978) held unconstitutional a Wisconsin state statute requiring judicial permission for a marriage license for any person who had a support order for a minor.
The opinion, authored by Justice Marshall, considers the case as one of equal protection and opines that
our past decisions make clear that the right to marry is of fundamental importance, and since the classification at issue here significantly interferes with the exercise of that right, we believe that "critical examination" of the state interests advanced in support of the classification is required.
The Court also states that more recent decisions "have established that the right to marry is part of the fundamental "right of privacy" implicit in the Fourteenth Amendment's Due Process Clause," citing Griswold v. Connecticut.
Thus, although not as famous as Loving v. Virginia, Zablocki v. Redhail is also frequently cited in any argument that marriage is a fundamental right, notwithstanding the Court's qualification in Zablocki that "not every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny," but only ones that interfere directly and substantially with the right to marry.
In a new essay, Chronicle of a Debt Foretold: Zablocki v. Red Hail, by Tonya L. Brito, R. Kirk Anderson and Monica Wedgewood, forthcoming in The Poverty Law Canon and available on ssrn, the authors revive the importance of the wealth inequality relevance of the case and also reveal a racial aspect. Redhail, whose name is actually Roger Red Hail, is a Native American man, now in his late 50s, who still owes child support for the child he fathered when he was 16. Although the "child" is now in her 40s, he owes the money to state (with interest) and the state continues to garnish his wages.
There is a possibility that Red Hail's pending child support cases now under the jurisdiction of Milwaukee County would be transferred to the Oneida Tribal Judicial System.
The essay is a must-read for anyone considering the constitutional ramifications of equality or marriage.
January 13, 2014 in Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Fundamental Rights, History, Reproductive Rights, Scholarship | Permalink | Comments (0) | TrackBack (0)
Thursday, January 2, 2014
In his opinion granting a final injunction in Obergefell v. Kasich, federal Judge Timothy Black addressed a particular enforcement of Ohio's limitation of marriage to opposite sex couples. He also cited and relied upon an interesting conceptualization put forth by Steve Sanders in his article, The Constitutional Right to (Keep Your) Same-Sex Marriage, 110 Mich. L. Rev. 1421 (2011), available on ssrn.
As the title indicates, Sanders argues that an individual who legally marries in his or her state of domicile, then migrates to another state, has a significant liberty interest under the 14th Amendment’s Due Process Clause in the ongoing existence of the marriage, as conceptually and doctrinally distinguishable from the constitutional “right to marry.”
Recall that the facts in Obergefell are especially sympathetic: one of the partners was a hospice patient and the relief requested regarded the martial status and surviving spouse to be recorded on the death certificate. As NPR reported, the couple "chartered a special medical jet to Maryland, where gay marriage is legal, and held a simple ceremony on the runway. And recall also that Judge Black's preliminary injunction opinion last July was one of the first after the Court decided United States v. Windsor, declaring section 3 of DOMA unconstitutional, and used Justice Scalia's dissent as part of the rationale for expanding Windsor.
Although Judge Black's preliminary injunction opinion certainly considered the effect of the out-of-state marriage, in the permanent injunction opinion, Judge Black constitutionalizes this conception:
In situations like those of Plaintiffs, however, where same-sex couples legally marry outside of Ohio and then reside in Ohio, a different right than the fundamental right to marry is also implicated: here, the constitutional due process right at issue is not the right to marry, but, instead, the right not to be deprived of one’s already-existing legal marriage and its attendant benefits and protections.
The footnote to this passage credits Steve Sanders article:
The concept of the right to remain married as a liberty interest protected by the Due Process Clause is eloquently advanced by Professor Steve Sanders in his article, The Constitutional Right to (Keep Your) Same-Sex Marriage, 110 MICH. L. REV. 1421 (2011). This judge acknowledges significant reliance upon Professor Sanders’s learned (and more extended) analysis of the fundamental right to remain married.
In the text of the opinion, Judge Black then quotes Sanders' article as stating, "In identifying the right to remain married as fundamental, Professor Sanders points out that the “[l]aw favors stability in legal relationships, vindication of justified expectations, and preventing casual evasion of legal duties and responsibilities.”
There is much talk about whether and when legal scholarship matters. In our new "Scholarship Matters" series, we'll continue to note incidents of scholarly influence on legal doctrine.
January 2, 2014 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Family, Fourteenth Amendment, Interpretation, Opinion Analysis, Scholarship, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)
Friday, December 20, 2013
In his opinion in Kitchen v. Herbert, federal district judge Robert Shelby held
that Utah’s prohibition on same- sex marriage conflicts with the United States Constitution’s [Fourteenth Amendment] guarantees of equal protection and due process under the law. The State’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason. Accordingly, the court finds that these laws are unconstitutional.
The judge interestingly relied upon Justice Scalia's dissenting opinion in last term's decision in United States v. Windsor, which held §3 of DOMA unconstitutional:
The Constitution’s protection of the individual rights of gay and lesbian citizens is equally dispositive whether this protection requires a court to respect a state law, as in Windsor, or strike down a state law, as the Plaintiffs ask the court to do here. In his dissenting opinion, the Honorable Antonin Scalia recognized that this result was the logical outcome of the Court’s ruling in Windsor:
In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion . . . is that DOMA is motivated by “bare . . . desire to harm” couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same- sex couples marital status.
133 S. Ct. at 2709 (citations and internal quotation marks omitted). The court agrees with Justice Scalia’s interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law.
Perhaps most controversially, Judge Shelby determines that marriage is a fundamental right and that restrictions on marriage merit strict scrutiny. He further finds that there is no compelling governmental interest justifying the same-sex marriage restriction, unlike, for example, a regulation of the age at which a person may be married which is supported by the compelling state interest of "protecting children against abuse and coercion."
Judge Shelby's opinion on equal protection grounds is much less controversial, and perhaps even conservative. Judge Shelby rejects the arguments - - - or at least the need for the arguments - - - regarding any sort of heightened scrutiny and resolves the case on rational basis review. This rejection includes the arguments centering on animus as a non-legitimate state interest. Instead, he concludes that the legitimate government interests that Utah cites are not rationally related to Utah’s prohibition of same-sex marriage. These interests include the by now familiar ones of "responsible procreation," "optimal child-rearing," "proceeding with caution," and "preserving the traditional definition of marriage."
He ends with an extended analogy to Loving v. Virginia, or more specifically, Virginia's arguments in the landmark case ruling the state's anti-miscengation law unconstitutional. And after clearing declaring sections 30-1-2 and 30-1-4.1 of the Utah Code and Article I, § 29 of the Utah Constitution unconstitutional under the Fourteenth Amendment, enjoins their enforcement.
Saturday, December 14, 2013
In a 91 page opinion in Brown v. Buhman, federal district judge Clark Waddoups has concluded that Utah's anti-bigamy statute is partially unconstitutional.
The statute, Utah Code Ann. § 76-7-101, provides:
- (1) A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.
- (2) Bigamy is a felony of the third degree.
- (3) It shall be a defense to bigamy that the accused reasonably believed he and the other person were legally eligible to remarry.
The challengers to the statute, the Browns, are famous from the reality program Sister Wives and the accompanying book ) and are represented by Professor Jonathan Turley, who blogs about the case here.
The judge's scholarly opinion includes a discussion of Edward Said's groundbreaking book Orientalism as a critique of the well-known passage in the United States Supreme Court’s 1879 decision in Reynolds v. United States upholding the criminalization of polygamy by reasoning, in part, that "Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people."
Judge Waddoups considers both the due process challenge (applying Washington v. Glucksberg) and the free exercise challenge (applying Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah).
In the due process analysis, the judge specifically found
there is no “fundamental right” to polygamy under Glucksberg. To phrase it with a “careful description” of the asserted right [citations omitted], no “fundamental right” exists to have official State recognition or legitimation of individuals’ “purported” polygamous marriages—relationships entered into knowing that one of the parties to such a plural marriage is already legally married in the eyes of the State. The fundamental right or liberty interest that was under consideration in Glucksberg is instructive for the analysis of whether the asserted right to polygamy is “deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.”
The judge also found that the criminalization of what it called the "religious cohabitation" portion of the statute did not rise to the level of a fundamental right, extensively discussing Lawrence v. Texas and the Tenth Circuit's limiting interpretation of Lawrence.
However, the judge did find that "the cohabitation prong does not survive rational basis review under the substantive due process analysis." This analysis implicitly imported a type of equal protection analysis, with the judge concluding:
Adultery, including adulterous cohabitation, is not prosecuted. Religious cohabitation, however, is subject to prosecution at the limitless discretion of local and State prosecutors, despite a general policy not to prosecute religiously motivated polygamy. The court finds no rational basis to distinguish between the two, not least with regard to the State interest in protecting the institution of marriage.
Complementing this conclusion regarding discriminatory enforcement, the judge's free exercise of religion analysis concludes that while the Utah statute may be facially neutral, the cohabitation prong is not "operationally neutral" and not of general applicability. The judge therefore applied strict scrutiny to the cohabitation prong and easily concluded the statute failed.
As an alternative free exercise analysis, the judge reasoned that the cohabitation prong also merited strict scrutiny because it involved a "hybrid rights" analysis under Employment Division, Department of Human Resources of Oregon v. Smith (1990), given the claims of due process, but also claims that the judge did not extensively analyzes such as free association, free speech, establishment, and equal protection.
Thus, the judge concluded the cohabitation prong of the statute is "unconstitutional on numerous grounds." However, the court explicitly narrowed the constructions of “marry” and “purports to marry" in the statute, so that the Utah statute continues to "remain in force as prohibiting bigamy in the literal sense—the fraudulent or otherwise impermissible possession of two purportedly valid marriage licenses for the purpose of entering into more than one purportedly legal marriage." Not surprisingly then, the judge's opinion does not cite the Supreme Court's opinion last term in United States v. Windsor involving DOMA and same-sex marriage, in which Justice Scalia, dissenting, invoked the effect the decision would have on polygamy. [I've previously discussed the similarities of same-sex marriage and polygamy claims here].
Given the district judge's narrowing construction and the clear constitutional issues with the Utah statute's breadth, it might be possible that the state does not appeal.
December 14, 2013 in Books, Equal Protection, Establishment Clause, Family, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Gender, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)
Wednesday, December 4, 2013
Gerard Magliocca (Indiana) appeared recently on Your Weekly Constitutional, a pod-cast and radio show affiliated with James Madison's Montpelier, to discuss his new book American Founding Son: John Bingham and the Invention of the Fourteenth Amendment. Magliocca talks about John Bingham and the creation of the Fourteenth Amendment in this terrific hour-long segment with YWC host Stewart Harris.
Tuesday, November 12, 2013
What is the government interest?
This simple query, even before one evaluates the interest (is it compelling? or even merely legitimate?), can be a vexing one for students, professors, litigators, and courts. Legislative listing of such interests - - - whether in preambles, legislative history, or litigation - - - provides language but not necessarily meaning.
In his terrific article, "Interest Creep," (available on ssrn), Professor Dov Fox (pictured left) analyzes government interests in an array of constitutional cases. His argument that the way that courts characterize government interests often shapes how cases are decided will hardly be surprising. His contribution, however, is in his own characterizations and categorizations of the types of interests and their deployment. His specific discussion of the government's interest in "potential life," expressed by the Court in Roe v. Wade, in contemporary abortion regulations about "fetal pain" and "sex/race selection" is stellar.
Ultimately, he argues that
Casual reliance on underspecified interests like potential life, national security, or child protection frustrates a constructive struggle about how best to make sense of the various plausible but distinct concerns that those shibboleths are invoked to capture over time and across contexts Interest creep erodes adjudicative norms by impeding the capacity of litigants, judges, advocates, lawmakers, and citizens “to debate and to criticize the true reasons for [judicial] decisions."
Especially worth a read for anyone teaching or writing in the areas of reproductive rights.
The United States Supreme Court routinely rejects petitions for writs of certiorari, so today's denial in Pruitt v. Nova Health Systems is not especially noteworthy. Nevertheless, given the Oklahoma Supreme Court's decision in 2012, which we discussed here, holding that Oklahoma's abortion law requiring an ultrasound was unconstitutional because of Planned Parenthood v. Casey, 505 U.S. 833 (1992), does seem meaningful.
Its meaning is compounded by the Court's dismissal of the writ as improvidentally granted in Pruitt's companion case, Cline v. Oklahoma Coalition for Reproductive Justice, in which the Court certified a question to the Oklahoma Supreme Court regarding the interpretation of the abortion statute.
Thus, it seems as if the Court presently has no inclination to reconsider Casey.
Monday, October 28, 2013
In his opinion in Planned Parenthood of Greater Texas v. Abbott, Judge Lee Yeakel has enjoined portions of Texas HB 2, passed in July (despite a well-publicized filibuster by state senator Wendy Davis) and slated to become effective October 29, 2013.
The judge found unconstitutional the "admitting privileges provision" that provided:
A physician performing or inducing an abortion:
(1) must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that:
(A) is located not further than 30 miles from the location at which the abortion is performed or induced; and
(B) provides obstetrical or gynecological health care services
He concluded that the provision placed a substantial obstacle in the path of a woman seeking an abortion and failed the rational basis test. As to the substantial obstacle, the judge noted that hospital admitting privileges for physicians performing abortions can be difficult to obtain; for example a physician performing low-risk abortions may simply not have sufficient surgeries to qualify. Moreover, many physicians are not within the 30 mile limit. Regarding a rational relationship, the judge found that hospital emergency rooms admitting a patient and hospitals subsequently treating her do not disfavor a patient whose physician does not have admitting privileges.
Judge Yeakel did not declare unconstitutional HB 2's revision of physician prescription of abortion-inducing medications such as RU-486. HB 2 essentially mandates following the FDA protocol, a protocol that is not usually followed and about which there is substantial disagreement. Judge Yeakel, however, found that HB 2 did not impose an undue burden because the physician could perform a surgical abortion. An exception, however, must be added if the physician determines that the health or life of the woman is at stake.
Texas is reportedly already appealing the decision. It is not the first time that Judge Lee (Earl Leroy) Yeakel has rendered an opinion declaring portions of a Texas statute restricting abortion unconstitutional and been appealed. Last year in Planned Parenthood Ass'n of Hidalgo Cty. v. Seuhs, a panel of the Fifth Circuit reversed Judge Yeakel's preliminary injunction involving a Texas regulation that expanded the Texas Women's Health Program prohibition of funding for health care not merely to abortions, but to any organization affiliated with abortion.
October 28, 2013 in Abortion, Courts and Judging, Due Process (Substantive), Fourteenth Amendment, Medical Decisions, Opinion Analysis, Reproductive Rights, Standing | Permalink | Comments (0) | TrackBack (0)
Tuesday, October 15, 2013
Today's oral arguments before the United States Supreme Court in Schuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN) raised a raft of interesting hypotheticals, including this question: Is the Michigan's state constitution's equal protection clause, which mirrors the federal one, itself unconstitutional under the Fourteenth Amendment's Equal Protection Clause.
Of course, the issue before the Court involves a different provision of Michigan's Constitution: Prop 2, adopted by voter referendum in 2006, and now Art I §26 of the state constitution.
The referendum occurred subsequent to the Court's upholding of Michigan University School of Law's affirmative action policy in Grutter v. Bollinger, even as the Court held unconstitutional the plan of the large undergraduate university as not sufficiently narrowly tailored.
Recall that the en banc Sixth Circuit majority in Coalition to Defend Affirmative Action v. Regents of the University of Michigan relied upon the so-called "political process" aspect of the Equal Protection Clause which asks whether a majority may vote to amend its constitution to limit the rights of a minority to seek relief, relying on Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969).
The oral argument reflected a deep suspicion of the political process rationale, with the most serious questioning being directed at what the limits to such a doctrine might be. Justice Alito returned to the issue several times, posing various hypotheticals about faculty admissions plans that might be overruled by a dean or president of the university. Or maybe, he continued,
it's overruled by the regents. Maybe, if State laws allowed, it's -- it's overruled by an executive department of the State. Maybe it's overruled by the legislature through ordinary legislation. Maybe it's overruled through a constitutional amendment. At what point does the political restructuring doctrine kick in?
Later in the rebuttal argument of the Petitioner, Justice Alito suggested an answer to his own question:
Seattle and this case both involve constitutional amendments. So why can't the law -- the law be drawn -- the line be drawn there? If you change the allocation of power in one of these less substantial ways, that's one thing; but when you require a constitutional amendment that's really a big deal.
Indeed, this was exactly the rationale of the en banc Sixth Circuit's majority opinion, as the opening passages to that opinion illustrated.
And Justice Kennedy, seemingly in his role as a "swing vote" - - - although Justice Kagan is recused - - - seemed to share the specific concerns of how to draw a line in the cases.
Justice Scalia certainly did not seem inclined to worry about drawing lines or allocations of power. Indeed, he rejected the notion that Prop 2, now Article I §26 of the Michigan Constitution - - - despite its textual "on its face" use of a race - - - made a racial classification. He chastised Mark Rosenblum, arguing on behalf of some of the respondents, for referring to Prop 2 as including a "facial racial classification":
JUSTICE SCALIA: It's not a racial classification. You should not refer to it that way.
MR. ROSENBAUM: It is a racial -
JUSTICE SCALIA: It's the prohibition of racial classifications.
MR. ROSENBAUM: No, Your Honor.JUSTICE SCALIA: Every prohibition of racial classification is itself a racial classification?
After further discussion, Justice Scalia asked,
In that sense, the 14th Amendment itself is a racial classification, right?
To which Rosenbaum replied that he was using the Fourteenth Amendment itself as measurement. Yet this theme recurred, and had been part of the Petitioner's opening argument, including references to Michigan's equal protection clause.
Scalia also outright dismissed an appeal to originalism. When Shanta Driver (pictured right) on behalf of Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary (and who is its National Chair), began her argument asking the Court to affirm the Sixth Circuit and "to bring the 14th Amendment back to its original purpose and meaning, which is to protect minority rights against a white majority, which did not occur in this case," Scalia interjected:
JUSTICE SCALIA: My goodness, I thought we've -- we've held that the 14th Amendment protects all races. I mean, that was the argument in the early years, that it protected only -- only the blacks. But I thought we rejected that. You -- you say now that we have to proceed as though its purpose is not to protect whites, only to protect minorities?
And Justice Roberts surfaced the position that affirmative action was actually a detriment to those it sought to benefit, echoing some of the arguments in Thomas's dissent in Fisher, such as the so-called "mismatch theory."
Thus, while the arguments sometimes sought to distance themselves from the affirmative action battles that the Court re-engaged last term in Fisher v. UT, certainly Schuette v. Coalition to Defend Affirmative Action is another such battle, albeit on slightly different doctrinal terrain. It seems unlikely that it will have a different ultimate outcome.
Tuesday, October 8, 2013
But preemption was not the only constitutional attack on SB1070; and these challenges are slowly but surely making their way to the Ninth Circuit. In March, a panel of the Ninth Circuit rendered its opinion in Valle Del Sol v. Whiting and upheld District Judge Susan Bolton's preliminary injunction against enforcement of the day labor regulations of SB 1070 as violative of the First Amendment.
Today, the Ninth Circuit again rendered an opinion upholding Judge Bolton's preliminary injunction; and although the case is again styled Valle Del Sol v. Whiting, the provisions of SB 1070 at issue, codified as Arizona Revised Statutes §13-2929, are the ones that attempted to "criminalize the harboring and transporting of unauthorized aliens" within Arizona.
Authored for the panel by Judge Richard Paez, and joined by John T. Noonan, with a concurring opinion and minimal dissent by Judge Carlos Bea, the opinion devoted about 10 of its 45 pages to the issue of standing, concluding that there was both individual and organizational standing.
On the merits, the panel found a due process violation:
Section 13-2929 states that “[i]t is unlawful for a person who is in violation of a criminal offense” to knowingly or recklessly transport, conceal, harbor, or shield an unauthorized alien. We conclude that the phrase “in violation of a criminal offense” is unintelligible and therefore the statute is void for vagueness.
Interestingly, the footnote to this passage explains:
The plaintiffs did not originally raise this issue. But in order to address the plaintiffs’ preemption claim, we must first interpret the statute’s provisions. In attempting to do so, we are confronted with this incomprehensible element of § 13-2929. Thus, we resolve the vagueness issue because it is both “antecedent to . . . and ultimately dispositive of” the appeal before us.
The court stated that "Arizona makes no claim that 'in violation of a criminal offense' makes any sense as written." The panel rejected Arizona's arguments to "save" the statute's wording, stating that Arizona would have the court "replace a nonsensical statutory element with a different element" rather than engage in the more permissible approach of adopting a limiting construction.
The court then engaged with the preemption challenge, stating that even if it were to accept Arizona's proposed interpretation of the statute, the statute is also preempted by federal law, under the doctrines of field preemption and conflict preemption. It was from this analysis that Judge Bea dissented, saying that because the case is "resolved on other grounds, namely vagueness, I believe the court should not reach the preemption issue."
The mistake - - - carelessness? - - - in the drafting of this provision was a fatal flaw. While the legislature could redraft legislation, as the court notes, perhaps the political will in Arizona for bills such as SB1070 has diminished.
Monday, October 7, 2013
What newspapers does he read? Is he softening on his views of homosexuality? Does he believe in hell and the devil? Are women protected by the Fourteenth Amendment? What are his hobbies other than hunting? His television viewing? Favorite novels?
Most wrenching decision?:
Probably the most wrenching was Morrison v. Olson, which involved the independent counsel. To take away the power to prosecute from the president and give it to somebody who’s not under his control is a terrible erosion of presidential power. And it was wrenching not only because it came out wrong—I was the sole dissenter—but because the opinion was written by Rehnquist, who had been head of the Office of Legal Counsel, before me, and who I thought would realize the importance of that power of the president to prosecute. And he not only wrote the opinion; he wrote it in a manner that was more extreme than I think Bill Brennan would have written it. That was wrenching.
But later, he comes back to the opinion:
As to which is the most impressive opinion: I still think Morrison v. Olson. But look, we have different standards, I suppose, for what’s a great opinion. I care about the reasoning. And the reasoning in Morrison, I thought, was devastating—devastating of the majority. If you ask me which of my opinions will have the most impact in the future, it probably won’t be that dissent; it’ll be some majority opinion. But it’ll have impact in the future not because it’s so beautifully reasoned and so well written. It’ll have impact in the future because it’s authoritative. That’s all that matters, unfortunately.
It's not what he terms his most "heroic" decision, however, reserving that for a very different sort of opinion.
I mean the most heroic opinion—maybe the only heroic opinion I ever issued— was my statement refusing to recuse.
From the case involving Vice-President Cheney, with whom you’d gone hunting?
I thought that took some guts. Most of my opinions don’t take guts. They take smarts. But not courage. And I was proud of that. I did the right thing and it let me in for a lot of criticism and it was the right thing to do and I was proud of that. So that’s the only heroic thing I’ve done.
Given the standards of recusal - - - despite continuing controversies - - - there is little reason that Scalia or any other Supreme Court Justice should not give as many interviews as possible, even if they might reveal "bias."
Dahlia Lithwick over at Slate has an excellent analysis of the interview, including asking for the interviewer's perceptions about the interview: Are Jennifer Senior and Justice Scalia as far apart as they seem?
I asked Senior whether this [perception] felt accurate. She replied, “It's embarrassing, but the overlap between our worlds is almost nonexistent. It explains why the left and the right both responded so enthusiastically to this piece. Each side sees its own view, affirmed. One sees a monster and the other sees a hero. It's extraordinary, actually. The O'Reilly constituents think he's speaking sense; the Jon Stewart vote thinks virtually everything the guy says is nuts.”
October 7, 2013 in Books, Courts and Judging, Current Affairs, Equal Protection, Executive Authority, Fourteenth Amendment, Interpretation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Monday, September 30, 2013
AG Eric Holder announced today that the U.S. Department of Justice would file suit against North Carolina in federal court to stop its new restrictions on voting. We previously posted on the ACLU suit against the state here.
The complaint alleges that North Carolina HB 589 reduces early voting days, eliminates same-day voter registration during early voting, prohibits the counting of provisional ballots cast outside a voter's precinct, and imposes a voter ID requirement--all in violation of Section 2 of the Voting Rights Act. DOJ argues that the changes have both a discriminatory purpose and a discriminatory effect. The Department also seeks "bail-in" under Section 3(c) of the VRA.
The cases come in the wake of the Court's ruling this summer in Shelby County v. Holder striking Section 4(b) of the VRA, the coverage formula for the preclearance requirement. By striking Section 4(b), the Court rendered Section 5 preclearance a dead letter, unless and until Congress can rewrite it in a way that would pass muster with this Court--that is, likely never. Section 3(c) bail-in works very much like Section 5 preclearance, though. If acourt orders bail-in, it will retain jurisdiction over the state "for such period as it may deem appropriate and during such period no voting qualification or prerequisite to voting or standard, practice, or procedure with respect to voting different from that in force or effect at the time the proceeding was commenced shall be enforced unless and until the court finds that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color . . . ."
The North Carolina and Texas cases are sure to raise two new fronts in the assault on the Voting Rights Act: challenges to congressional authority to enact Section 3(c) bail-in, and challenges to congressional authority under Section 2 to ban state laws that have a discriminatory effect (even if not a discriminatory purpose).
September 30, 2013 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, Fourteenth Amendment, Fundamental Rights, News | Permalink | Comments (1) | TrackBack (0)
Tuesday, September 24, 2013
According to a report in the Kansas City Star, David Guth, a journalism professor at University of Kansas has been placed on "administrative leave" for his tweet about after last week's shooting leaving 13 dead at the DC Navy Yard.
"The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.”
While there is an implication that some in the KU Administration might believe this constitutes advocacy of violence, it's doubtful that the tweet would rise to this level. It certainly does not rise to the level of a threat: Compare the Ninth Circuit in United States v. Bagdasarian and a finding of true threats in a blog post by the Second Circuit in United States v. Turner.
There is also the question of the lack of due process accorded to Professor Guth, as some have noted.
But perhaps most relevant is the Ninth Circuit's recent opinion in Demers v. Austin. Certainly Guth's tweet is a matter of public concern and he was speaking as a private citizen rather than as a public employee. On this view, his speech should be protected under the First Amendment. Moreover, Guth's tweet does not present the kind of close case presented in Demers and there should be little credit to claims of qualified immunity.
Guth's "personal blog" (as the blog itself proclaims) deserves similar First Amendment protection. (The blog entry for September 16, 2013 entitled "Where Do You Stand?" discusses the Navy Yard incident).
Like the so-called "political rant" last week by another academic, this would make a terrific in class exercise for those teaching First Amendment.
Friday, September 20, 2013
The Brennan Center filed suit this week in federal court on behalf the Texas State Conference of the NAACP and the Mexican American Legislative Caucus of the Texas House of Representatives challenging SB 14, Texas's strict voter ID law. The Brennan Center's resource page on the case is here.
The suit this week comes soon after the United States Department of Justice filed its own suit against Texas to stop SB 14.
Recall that the Texas AG announced that the state would move to enforce SB 14 soon after the Supreme Court struck the coverage formula for the preclearance requirement in the Voting Rights Act this summer in Shelby County v. Holder.
The suit filed this week, like the DOJ suit before it, also seeks "bail-in" under Section 3(c) of the Voting Rights Act--that is, an order by the federal court for continued monitoring of the state that would operate very much like preclearance under Section 5 would have operated against a covered state like Texas (until the Court struck the coverage formula, leaving Section 5 a dead letter, in Shelby County).
Section 3(c) bail-in may be the next litigation target (after opponents succeeded in challenging the coverage formula for preclearance in Shelby County) for states like Texas facing VRA suits. Texas's responses to these suits will tell.
September 20, 2013 in Cases and Case Materials, Congressional Authority, Elections and Voting, Equal Protection, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)
Wednesday, September 18, 2013
In her commentary "Why Lawyers Become Bad Leaders" at the Chronicle of Higher Education, Deborah Rhode has several arguments supporting her position, but of great interest to ConLawProfs is her use of prominent lawyers Ted Olson and David Boies (pictured below) in the Proposition 8 litigation as a "case study in the limitations of lawyers as leaders."
Rhode notes that they were hired by a political strategist and a Hollywood producer to challenge Prop 8, and although they knew that leaders of gay-rights organizations were opposed to a federal challenge to Prop 8, they did not consult them before filing suit. She then discusses some of the issues with their litigation, noting "Olson and Boies clearly had something to gain from being lead counsel in a case of such prominence." Recall that even before the case reached the Supreme Court, the trial garnered much attention. Rhode writes:
Boies and Olson pursued a high-risk strategy against the advice of groups that had the greatest expertise and stake in the outcome. Most observers believe that a low-risk strategy of challenging Prop 8 at the ballot box would have been successful, as polls suggested that California voters had changed their views on the ban. Such a strategy would have exposed the gay-rights movement to less risk of an adverse Supreme Court precedent while accomplishing the same result.
That is not to deny the accomplishments of Boies and Olson as litigators, the advantages of having a prominent conservative like Olson supporting gay marriage, or the social commitments that underpinned their actions. But it is to underscore the difference between effective lawyers and effective leaders.
A quality of successful leadership is the capacity to work collaboratively. The most-effective leaders are those who can see past their own ambitions and desire for limelight.
Rhode's article is worth a read - - - and much consideration.
Sunday, September 15, 2013
Over at the New Yorker blog, Lincoln Caplan's piece, "Justice Ginsburg and Footnote Four" analyzes Ginsburg's discussion last week at the National Constitution Center, arguing that one of her statements "deserves more attention than it has gotten."
Ginsburg stated that her dissent last term in Fisher v. University of Texas Austin, regarding judicial review of affirmative-action plans of colleges and universities, "was inspired by a 1938 ruling not mentioned in the dissent—actually, by one of its footnotes." That most famous footnote - - - footnote four - - -of United States v. Carolene Products, is for many (including Caplan) the foundation of "a coherent justification for unelected justices to overturn legal decisions of elected officials when the fairness of the Constitution, and of democracy, is at stake."
Recall that the 1938 case of Carolene Products involved a federal statute regulating the shipment of "filled milk" (skimmed milk to which nonmilk fat is added so that it may seem to be like whole milk or even cream). It may be that this case was also on Ginsburg's mind during the oral arguments of another one of last term's cases: In her questioning of Paul Clement, who represented BLAG, in United States v. Windsor about the constitutionality of DOMA, she condensed his argument as saying that in granting same-sex marriages, states were nevertheless saying there were really "two kinds of marriage; the full marriage, and then this sort of skim milk marriage." As we noted at the time, Ginsburg's allusion would have special resonance for those who recalled Carolene Products.
September 15, 2013 in Affirmative Action, Courts and Judging, Fifth Amendment, Food and Drink, Fourteenth Amendment, Fundamental Rights, Interpretation, Recent Cases, Sexual Orientation, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)
Thursday, September 12, 2013
Michigan, like most states, has a vanity license plate program under which residents can apply for a "personalized" letter or number combination rather than being randomly assigned one, upon the payment of an additional fee. Under M.C.L. § 257.803b(1), the secretary of state "shall not issue a letter combination that might carry a connotation offensive to good taste and decency."
In the complaint filed in Matwyuk v. Johnson, the plaintiff, represented by the ACLU of Michigan, alleges that the secretary of state's office denied his application for "INFIDEL" (or some variation) because it was "offensive to good taste and decency." The plaintiff claims the "offensive to good taste and decency" provision on its face and as applied violates the First Amendment as overbroad and the Due Process Clause of the Fourteenth Amendment as vague.
Matwyuk's factual allegations are especially compelling:
Mr. Matwyuk is a retired U.S. Army sergeant who was deployed as an American soldier in Iraq during the height of hostilities in that country. He and his fellow troops were constantly under attack by insurgent extremists whose word for the American soldiers was “infidel.” Seeking to reclaim or reappropriate this term as a source of American pride and patriotism, Sergeant Matwyuk and other soldiers came to embrace their identity as “infidels.” He and other American veterans proudly refer to themselves as “infidels” as a reminder of the bond they share as survivors of a bloody war in a hostile part of the world.
To honor the sacrifices of his fellow soldiers and to express his pride and patriotism as a veteran of the war in Iraq, Sergeant Matwyuk wishes to obtain a personalized Michigan license plate that reads “INFIDEL" . . . .
Unlike other license plate cases involving compelled speech in the usual license plate design or speciality license plate design schemes, here the issue is the very letters and numbers that individualize the identification of the license plate. Nevertheless, some of the same doctrines will be at issue, including the license plate being a "forum" that the government has opened for speech. Additionally, doctrines regarding interpretations of "decency" - - - as opposed to the established meanings of obscenity - - - will also be at issue. These doctrines tend to support the plaintiff's case.