Monday, April 8, 2013
Greenhouse has this reminder about federalism and family law:
There is much that’s questionable about this assertion of implicitly boundless state authority over family affairs. A famous pair of Supreme Court decisions from the 1920s armed parents with rights under the Due Process Clause to educate their children as they see fit, in resistance to state laws. Pierce v. Society of Sisters gave parents the right to choose private or religious schools despite an Oregon law that required public school education for all. Meyer v. Nebraska struck down a state law that barred the teaching of modern foreign language (the law’s post-World War I target was German.)
Nor is this ancient history. In 2000, the court struck down a state law in Washington that gave grandparents the right to visit their grandchildren over the parents’ objection. Justice O’Connor wrote the court’s opinion, Troxel v. Granville, which was joined by Chief Justice Rehnquist.
Substitute “marriage” for “criminal procedure” and you time-travel into last week’s argument. But you will listen in vain for the voice of Justice William O. Douglas, who brushed away concerns about what he dismissively called “this federalism” to ask: “Has any member of this court come out and said in so many terms it’s the constitutional right of a state to provide a system whereby people get unfair trials?”
As usual, Linda Greenhouse is worth a read, for ConLaw Profs and ConLaw students.
April 8, 2013 in Criminal Procedure, Current Affairs, Due Process (Substantive), Equal Protection, Federalism, Fifth Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Interpretation, Oral Argument Analysis, Sexual Orientation, Sexuality, Sixth Amendment, Supreme Court (US), Theory | Permalink | Comments (2) | TrackBack (0)
Thursday, March 28, 2013
In the oral argument for United States v. Windsor challenging the constitutionality of the Defense of Marriage Act, DOMA, Chief Justice Roberts expressed skepticism that gays and lesbians were politically powerless, announcing to Roberta Kaplan, representing Edith Windsor, "As far as I can tell, political figures are falling over themselves to endorse your side of the case."
ConLawProf Darren Hutchinson (pictured) provides an indepth examination, context, and prescient critique of Roberts' remark in his new article, Not Without Political Power': Gays and Lesbians, Equal Protection, and the Suspect Class Doctrine, available in draft on ssrn. Hutchinson argues that the political powerlessness factor used to evaluate claims for heightened scrutiny under equal protection doctrine is "especially undertheorized and contradictory."
Hutchinson's article is a tour de force of precedent deploying rhetoric of political powerlessness. Of course, Hutchinson highlights Justice Scalia's well-known dissent in Romer v. Evans, the Colorado Amendment 2 case, noting that not only is it based on stereotypes but it "sounds exactly like a political document against gay and lesbian rights." But Hutchinson does suggest that there is indeed a role for politics, however at a much more sophisticated level. Rather than jettison any inquiry into political powerlessness as some scholars have argued, Hutchinson contends that a much more robust understanding of politics is necessary.
Ultimately, Hutchinson concludes that the present scholarly and judicial discourse
fails adequately to discuss the multiple factors that cause political vulnerability among gays and lesbians. While some gays and lesbians possess power, most of them do not. Poverty, gender, race, geography, and disability influence the ability of gays and lesbians to exercise political power.
Instead, he suggests that political science scholarship inform legal scholarship and judicial opinions, and that antisubordination legal scholarship inform wider discussions of equal protection. Certainly, Hutchinson's article should inform anyone considering political powerlessness in the context of same-sex marriage and equal protection.
March 28, 2013 in Current Affairs, Equal Protection, Family, Fifth Amendment, Fourteenth Amendment, Gender, Interpretation, Profiles in Con Law Teaching, Reconstruction Era Amendments, Scholarship, Sexual Orientation, Sexuality, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)
Wednesday, March 27, 2013
This is from the essay Toward a more perfect analysis, published in the SCOTUSBlog same-sex marriage sympoisum in September 2012:
The suggestions of clearly articulated standards and rigorous analysis are not simply the fantasies of a law professor. While Supreme Court opinions need not be constitutional law examination answers, neither should they be confusing, or marred by sarcasm or sentimentality. Students studying law should be exposed to more Supreme Court opinions demonstrating trenchant analysis rather than rhetorical politics.
Clearly articulated standards might also allow the lower federal courts as well as the state courts to engage in their own rigorous analysis rather than attempt to discern the correct standard from Supreme Court precedents that are unclear, internally inconsistent, or point in several directions. This is not to say that the same-sex marriage issue should have been easily resolved by lower courts or that the applications of the standard are not difficult and value-laden. However, the grappling of the lower courts for several years now regarding the actual holding of Romer v. Evans, as well as Loving v. Virginia, could have been avoided.
Regarding the suggested holdings in the Proposition 8 and DOMA cases, the Supreme Court’s clear conclusion that sexuality merits intermediate scrutiny review, like gender, would disentangle the equal protection doctrine from the animus inquiry. While certainly animus can be operative, the inquisition into intent invites protestations of moral belief or religious conviction. The false opposition between equality and morals needs to be abandoned. Additionally, the linking of sexual orientation and gender as quasi-suspect should lead courts to find classifications based upon gender identity, transgender identity, or gender nonconformity as similarly subject to intermediate scrutiny review. Additionally, the Supreme Court’s definitive holding that marriage is a fundamental right meriting strict scrutiny review would extricate the issues from the federalism quagmire.
March 27, 2013 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Gender, Interpretation | Permalink | Comments (0) | TrackBack (0)
Tuesday, March 26, 2013
The first of the two closely-watched same sex marriage cases to be argued before the United States this morning prompted much tweeting and predictions, as well as the promised early release of the audio by the Supreme Court itself.
As the oral arguments today made clear, at issue before the Court today in Hollingsworth v. Perry is the constitutionality of California's Proposition 8, held unconstitutional by a divided panel of the Ninth Circuit in Perry v. Brown.
The Standing Issue:
The first question during oral argument was from Chief Justice Roberts and directed the attention of Hollingsworth's counsel, Charles Cooper, to the "jurisdictional" issue - - - the question of whether Hollingsworth has standing. Recall that the original challenge to Proposition 8 named Governor Schwarzenegger, and later substituted Governor Brown, as defendants, but both governors and the State of California refused to defend the constitutionality of the voter initiative. Recall also that the California Supreme Court had answered a certified query about the interests of proponents of a Proposition under California law, but today's the questions from the bench stressed Article III of the United States Constitution.
Roberts' query was repeated to Theodore Olsen, arguing for the challengers to Proposition 8, and to Solicitor General Verrilli, who noted that the United States, as amicus, did not have a "formal position" on standing, but essentially echoed Justice Ginsburg's first question to Cooper, regarding whether the proponents of Proposition 8 had any "propriety interest" in the law distinct from other California citizens once the law had been passed.
On the Merits:
A central query on the merits is the level of scrutiny under equal protection doctrine that should be applied. Justice Kennedy asked Cooper whether it could be treated as a gender classification and stated "It's a difficult question that I've been trying to wrestle with it." Yet Cooper's argument in many ways deflects the level of scrutiny inquiry and Justice Kagan expressed it thusly:
Mr. Cooper, could I just understand your argument. In reading the briefs, it seems as though your principal argument is that same-sex and opposite -- opposite-sex couples are not similarly situated because opposite-sex couples can procreate, same-sex couples cannot, and the State's principal interest in marriage is in regulating procreation. Is that basically correct?
Mr. Cooper agreed, and continued his argument, although Justice Scalia later tried to assist him:
JUSTICE SCALIA: Mr. Cooper, let me -- let me give you one -- one concrete thing. I don't know why you don't mention some concrete things. If you redefine marriage to include same-sex couples, you must -- you must permit adoption by same-sex couples, and there's - there's considerable disagreement among -- among sociologists as to what the consequences of raising a child in a -- in a single-sex family, whether that is harmful to the child or not. Some States do not -- do not permit adoption by same-sex couples for that reason.
JUSTICE GINSBURG: California -- no, California does.
JUSTICE SCALIA: I don't think we know the answer to that. Do you know the answer to that, whether it -- whether it harms or helps the child?
But given that Justice Kennedy is widely viewed as the "swing vote," his comments deserve special attention. During Cooper's argument, Kennedy focused on the children of same-sex couples in California:
JUSTICE KENNEDY: I -- I think there's - there's substantial -- that there's substance to the point that sociological information is new. We have five years of information to weigh against 2,000 years of history or more. On the other hand, there is an immediate legal injury or legal -- what could be a legal injury, and that's the voice of these children. There are some 40,000 children in California, according to the Red Brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don't you think?
But at other times, Kennedy expressed other concerns. During Theordore Olsen's argument, Kennedy stated
JUSTICE KENNEDY: The problem -- the problem with the case is that you're really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters, and you can play with that metaphor, there's a wonderful destination, it is a cliff. Whatever that was.
And soon thereafter, in perhaps what could be a possible avoidance of all the issues,
JUSTICE KENNEDY: But you're -- you're doing so in a -- in a case where the opinion is very narrow. Basically that once the State goes halfway, it has to go all the way or 70 percent of the way, and you're doing so in a case where there's a substantial question on - on standing. I just wonder if -- if the case was properly granted.
MR. OLSON: Oh, the case was certainly properly granted, Your Honor. I mean, there was a full trial of all of these issues. There was a 12-day trial, the judge insisted on evidence on all of these questions. This -- this is a -
JUSTICE KENNEDY: But that's not the issue the Ninth Circuit decided.
Could the Supreme Court merely declare that its grant of certiorari was "improvidently granted." It certainly wouldn't be the first time (or second) in very recent history. But in such a high profile case, it might further erode respect for the Court.
March 26, 2013 in Courts and Judging, Equal Protection, Family, Fourteenth Amendment, Gender, Opinion Analysis, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Monday, March 25, 2013
Even as we await the United States Supreme Court's opinion on the constitutionality of a university's affirmative action plan in Fisher v. University of Texas argued October 10, it has become clear that Fisher will not be the Court's last affirmative action case.
Today, the Court granted a petition for certiorari in Schuette v. Coalition to Defend Affirmative Action to the Sixth Circuit's en banc decision in Coalition to Defend Affirmative Action v. Regents of the University of Michigan decided last November. Recall that the Sixth Circuit majority held Michigan's anti-affirmative action constitutional amendment, passed in 2006 as a ballot initiative Proposal 2, unconstitutional.
The en banc Sixth Circuit was seriously fractured, but none of the opinions considered the Court's affirmative action cases of Grutter and Gratz (or the pending case of Fisher). Instead, the relevant doctrine was 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? This underlying problem is similar to some of the arguments in the Proposition 8 case - - - Hollingsworth v. Perry - - - to be argued before the Supreme Court tomorrow, March 26, and certainly resonates with the Ninth Circuit's reasoning in Perry finding that Prop 8 was unconstitutional.
In the case of Michigan's Prop 2, the Sixth Circuit majority found it troublesome that only as to racial classifications in university admissions would a person seeking to change policy have to amend the state constitution, as contrasted to other classifications that could be changed by various other means, including simply persuading an admissions committee.
As to what the Court's grant of certiorari in Coalition to Save Affirmative Action might mean for Fisher, reading the "tea leaves" is difficult. As we observed when the Sixth Circuit decided Coalition to Save Affirmative Action, a very broad approach in Fisher - - - such as a declaration that all racial affirmative action policies in education were per se unconstitutional - - - would seriously undermine the rationale of the Sixth Circuit opinion. However, a grant of certiorari in Coalition to Save Affirmative Action does not mean that Fisher will be narrow or that it will uphold the University of Texas' affirmative action plan.
And one additional "wrinkle": Justice Kagan is recused in Coalition to Save Affirmative Action.
[image Affirmative Action demonstration in 2003, via]
Friday, March 15, 2013
"Equality of the states" reared its head recently in oral arguments in Shelby County v. Holder, the case testing congressional authority to reauthorize the preclearance provision of the Voting Rights Act. The traditionally conservative Justices all (save Justice Thomas) expressed different concerns related to the provision's different treatment of the states--or, how preclearance violates the principle of "equality of the states." (Preclearance under Section 5 of the VRA applies only to covered jurisdictions under Section 4(b) of the VRA. Only covered jurisdictions, not all states, are required to preclear their election law changes with DOJ or the D.C. District court.)
But where does this idea of equality of the states come from?
David Gans over at the Constitutional Accountability Center draws on a recent piece by Adam Liptak and argues that Congress violates a principle of equality of the states all the time--most notably by providing dramatically different levels of funding, per capita, to different states. Nobody makes a constitutional case out of this.
Moreover, Gans argues that "[t]he Supreme Court has never interpreted the Constitution to require equality among the states outside the very narrow context of the admission of new states. It is now black letter law that 'the doctrine of equality of states . . . applies only to the terms upon which the states are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.'"
For more on that point, and how the Court mangled the "equality of the states" quote in Northwest Austin Municipal Utility District v. Holder, check out Zachary Price's contribution to the SCOTUblog symposium on Shelby County, and Federalism and the Voting Rights Act at the ACS blog.
March 15, 2013 in Cases and Case Materials, Congressional Authority, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)
Wednesday, March 13, 2013
Divided Fourth Circuit Panel Declares Virginia's Sodomy Law Unconstitutional: A Decade After Lawrence v. Texas
William Scott MacDonald was arrested more than a year after Lawrence v. Texas (2003), for solicitation to violate Virginia's (anti-)sodomy law, Va. Stat §18.2-361(A): "If any person . . . carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, he or she shall be guilty of a [felony.]" He was eventually sentenced to ten years, with nine years suspended, and thereafter compelled to register as a sex offender. His life, as Adam Liptak reported in 2011, has not been easy.
The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.
In MacDonald's situation, the solicitation - - - all parties agree no sex actually occurred - - - was found to be of a 17 year old woman. (Interestingly, the 47 year old MacDonald had originally contacted law enforcement alleging that the young woman had sexually assaulted him; he was also convicted of the misdemeanor of making a false report.) The prosecution thus successfully argued that Lawrence v. Texas was inapposite since the Virginia statute - - - as applied - - - was constitutional. This argument succeeded even though the the age limit in the solicitation statute was 15, not 18.
The Commonwealth of Virginia was similarly successful in its arguments in state courts on direct appeal and postconviction relief. MacDonald thereafter sought federal habeas relief, with the district judge rejecting the constitutional arguments.
The Fourth Circuit's opinion yesterday in MacDonald v. Moose belatedly provides relief for MacDonald. The panel majority wrote that "we are constrained" to find an entitlement to habeas corpus relief on the ground that the Virginia anti-sodomy provision "facially violates the Due Process Clause of the Fourteenth Amendment." The Fourth Circuit's opinion seems at times quite deferential to Virginia, but at two points the opinion sharpens its rhetoric.
First, the panel points to an inconsistency in Virginia's treatment of MacDonald:
The Commonwealth’s efforts to diminish the pertinence of Lawrence in connection with MacDonald’s challenge to the anti-sodomy provision — an enactment in no way dissimilar to the Texas and Georgia statutes deemed unconstitutional by the Supreme Court — runs counter to Martin v. Ziherl, 607 S.E.2d 367 (Va. 2005). In that case, the Supreme Court of Virginia evaluated the constitutionality of a state statute having nothing to do with sodomy, but instead outlawing ordinary sexual intercourse between unmarried persons. The state supreme court nonetheless acknowledged that Lawrence was sufficiently applicable to require the statute’s invalidation.
Second, in a footnote the panel majority expressed its disagreement with the dissent in terms that questioned Virginia's prosecutorial choices:
The dissent’s finely honed distinction that, unlike Lawrence and Bow- ers, this "case" involves minors, is made possible solely by the Commonwealth’s decision to institute prosecution of a man who loathsomely solicited an underage female to commit an act that is not, at the moment, a crime in Virginia. The Commonwealth may as well have charged Mac- Donald for telephoning Ms. Johnson on the night in question, or for persuading her to meet him at the Home Depot parking lot. The legal arm of the Commonwealth cannot simply wave a magic wand and decree by fiat conduct as criminal, in usurpation of the powers properly reserved to the elected representatives of the people.
The controversies surrounding the Court's impending decision in Shelby County v. Holder regarding the constitutionality of the Voting Rights Act's "preclearance" provision (section 5) have been exacerbated by Justice Scalia's remarks about "racial entitlement." Seemingly, at issue for the Justices - - - originalist and otherwise - - - is the meaning of the enforcement clauses of the Fifteenth and Fourteenth Amendments: "The Congress shall have power to enforce this article by appropriate legislation."
In a provocative new article, A Structural Theory of Elections, available in draft on ssrn, ConLawProf Franita Tolson (pictured) seeks to redirect our attention to section 2 of the Fourteenth Amendment:
Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.
Tolson's attention is not to the language that first introduced gender into the Constitution ("male inhabitants") or to the change in counting those male inhabitants ("excluding Indians") or to the subsequent change in voting age, but to the broad ability of Congress to change the apportionment for voting rights violations. She argues that this previously under-emphasized language makes the Court's "congruence and proportionality" standard for evaluating Congressional power inapplicable in the voting and election contexts.
Tolson's article is a closely reasoned and excellently researched argument for the broad enforcement powers of Congress intended by the Framers of the Fourteenth and Fifteenth Amendments. She ultimately contends "that requiring preclearance of all electoral changes instituted by select jurisdictions under section 5 of the Voting Rights Act is actually a lesser penalty than reduced representation under section 2, and is thus consistent with Congress’s broad authority to regulate voting and elections under the Fourteenth and Fifteenth Amendments."
Tolson's article is certainly worth a read for anyone considering the issues at the heart of Shelby County v. Holder.
Monday, March 11, 2013
Arizona's HB 2281, which we noted when it was passed in 2010, has been primarily upheld by federal district judge Wallace Tashima in his opinion late last Friday in Acosta v. Huppenthal. Recall that HB 2281, codified as Arizona Revised Statute §15-112 provides:
A. A school district or charter school in this state shall not include in its program of instruction any courses or classes that include any of the following:
1. Promote the overthrow of the United States government.
2. Promote resentment toward a race or class of people
3. Are designed primarily for pupils of a particular ethnic group.
4. Advocate ethnic solidarity instead of the treatment of pupils as individuals.
Savings clauses in subsections E and F state that the statute should not be construed to restrict or prohibit instruction in various matters, including "the historical oppression of a particular group of people based on ethnicity, race, or class."
It was the savings clauses and Judge Tashima's narrow interpretation of the statute that supported his conclusion that most of the statute survived the First Amendment challenge. Judge Tashima also ruled that the statute survived the Equal Protection and Due Process challenges.
As to the First Amendment, Judge Tashima explained:
Plaintiffs’ First Amendment claims are premised on two bases: the right to speak freely in the classroom, and the right to receive information and ideas. The first basis cannot sustain their claims because the statute does not limit what students can say in the classroom. But the statute does implicate the second basis because Plaintiffs have an established right to receive information and ideas in the classroom. Limitations on this right, however, are subject only to limited scrutiny, i.e., whether the provisions are reasonably related to a legitimate pedagogical concern.
In construing the first and second provisions - - - banning courses that "promote the overthrow" or "promote resentment" - - - he stressed a narrow reading of the word "promote." He also ruled that the exception for "historical oppression" (in the savings clause section F) keeps "the proscription from crossing the constitutional line."
However, he held that the third subsection - - - "Are designed primarily for pupils of a particular ethnic group" - - - could not be similarly saved. He noted that this provision does not promote any legitimate interest that is not already covered by the second provision, and could "chill the teaching of legitimate ethnic studies courses."
He returned to his narrow reading to uphold the fourth provision - - - "advocate ethnic solidarity:"
Thus, if the statute simply proscribed courses that taught ethnic solidarity, without any reference to the treatment of students as individuals, it likely would not survive even the most deferential scrutiny. The provision, however, is more narrowly tailored than an outright ban on the teaching of ethnic solidarity. Instead, the statute prohibits the “advocacy” of ethnic solidarity “instead of the treatment of pupils as individuals.” By phrasing this provision in the alternative, and by restricting only the direct “advocacy” of ethnic solidarity, the provision is at least reasonably related to legitimate pedagogical concerns.
Judge Tashima disposed of the Equal Protection and Due Process challenges with much more expediency. Regarding Equal Protection, he found that the statute did not make an express racial classification, and although there were "red flags" and "some aspects of the record may be viewed to spark suspicion that the Latino population has been improperly targeted" that "on the whole, the evidence indicates" that it was the program and not "Latino students, teachers, or community members who supported or participated in the program" that was the issue. Regarding Due Process, Judge Tashima concluded in a paragraph that there was no prima facie showing.
It seems likely that an appeal to the Ninth Circuit will be forthcoming.
[image: 1860 map of Tucson area via]
Friday, March 8, 2013
Apropos of International Women's Day today, President Obama's signing of the reauthorization of the Violence Against Women Act (VAWA) yesterday is the daily read, including the official remarks and the video below.
As the President's remarks reflect, the version of VAWA that passed Congress is notable because it includes protections for Native Americans (expanding tribal jurisdiction), for undocumented persons, and for persons in same-sex relationships.
And they are also notable for his shout-out to one of my former students, Sharon Stapel, for her work.
Thursday, March 7, 2013
In the latest chapter of McCormack v. Hiedeman, District Judge Lynn Winmill issued a 42 page opinion (Memorandum Decision and Order) yesterday holding various provisions in Idaho's abortion law unconstitutional, including the 20 week pregnancy ban unconstitutional.
Recall that the Ninth Circuit last year found that Idaho's prosecution of McCormack for "self-abortion" constituted an undue burden and was unconstitutional. McCormack, who purchased abortion "medications" over the internet, was the subject of an excellent indepth article which we discussed here. At that time, it seemed as if the case was concluded.
However, Judge Winmill rejected the prosecutor's argument that the case was moot, noting that a party "cannot conjure up mootness by ceasing the challenged conduct only for practical or strategic reasons - - - such as avoiding litigation." The judge further held that the prosecutor's promise not to prosecute would not bind his successors and that his subsequent offer of transactional immunity to McCormack was not timely or binding. Further, the judge noted that pregnancy is "capable of repetition yet evading review."
Judge Winmill also held that the physician in the case had standing, including to assert his patients' constitutional claims.
On the merits, Judge Winmill held that the self-abortion provision is a substantial obstacle and therefore unconstitutional, adopting the Ninth Circuit's reasoning.
Judge Winmill also held unconstitutional the provisions imposing criminal liability on abortion providers who perform first trimester abortions outside a hospital or a properly staffed and equipped office or a clinic and requires that “physicians have made satisfactory arrangements” for emergency hospital care. The judge accepted the physician's argument that the terms “properly” and “satisfactory” are unconstitutionally vague therefore placing an undue burden on women seeking first trimester abortions. There is some confusion in the judge's reliance on Gonzales v. Carhart in this passage, but the judge finds that the Idaho statute is not sufficiently specific.
Additionally, the judge found unconstitutional the Idaho provisions banning abortions at twenty weeks in PUCPA, the Pain-Capable Unborn Child Protection Act. He reasoned that PUCPA does not contain mention the health or safety of the pregnant woman, that its only purpose was to limit the available options for the woman, and that the legislature cannot place viability at a set point.
Given this opinion, it is likely that McCormack v. Heidman will be returning to the Ninth Circuit.
Justice Antonin Scalia's remark during the oral arguments in Shelby County v. Holder last week characterizing the preclearance provision of the Voting Rights Act as a "racial entitlement" has garnered much attention, including "gasps" in the Supreme Court chambers itself.
Of course, the ability of Scalia's comments to provoke is not new: his statements in last year's oral arguments in Arizona v. United States regarding the constitutionality of SB1070 drew particular attention.
In the Shelby argument, Scalia described the Voting Rights Act provision and its reenactments as
a phenomenon that is called perpetuation of racial entitlement. It's been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.
To what writings does Justice Scalia refer? ConLawProf Chad Flanders, in a news commentary that is itself garnering attention, suggests that Justice Scalia might be referencing Professor Scalia's own writings. Flanders points to Scalia's article, The Disease as Cure: “In Order to Get Beyond Racism, We Must First Take Account of Race,” 1979 Wash. U. L. Rev. 147, available here.
Scalia's writing is not an article but rather published as a "Commentary" and obviously taken from his remarks on a panel at a Symposium entitled "The Quest for Equality." Scalia describes himself as the "anti-hero" of the panel: the other commentator was Herma Hill Kay and the main paper was by Harry T. Edwards. (Ruth Bader Ginsburg delivered the main paper on the next panel.) His subtitle is derived from Justice Blackmun's dissenting and concurring opinion in Regents of University of California v. Bakke, 438 U.S. 265, 407 (1978).
Scalia indeed does use the term "racial entitlement" in his remarks:
The affirmative action system now in place will produce the latter result because it is based upon concepts of racial indebtedness and racial entitlement rather than individual worth and individual need; that is to say, because it is racist.
But of course, his rejection of "racial indebtedness" was clear in his 1995 concurring opinion in Adarand Constructors, Inc. v. Pena, 515 U.S. 200, in which the Court held an affirmative action policy unconstitutional. Scalia wrote then:
[image: caricature of Antonin Scalia by DonkeyHotey via]
Wednesday, March 6, 2013
Ninth Circuit Grants Standing to Challenge California's Requirement for Resident Signature Gatherers for Ballot Qualification
California's Election Code, sections 8066 and 8451 require the persons who gather the signatures necessary to place a name on the ballot in an election to be residents of the political subdivision or district in which the voting is to occur. California uses the term "circulators" for the person who gathers the signatures and the term "nomination paper" for the document with the signatures, but the general scheme is a familiar one.
Indeed, recall the controversy in January 2012 over a First Amendment challenge by Republican candidates for President to the Virginia election provision that mandated that the petition be circulated by a registered (or eligible) voter in Virginia and the circulator must sign the petition in the presence of a notary. The Fourth Circuit rejected the challengers arguments on the basis of laches. Part of the candidates' argument for waiting was that they did not have standing until later in the process.
And the standing concern is a serious one.
But the Ninth Circuit's opinion in Libertarian Party of Los Angeles County v. Bowen today - - - reversing the district judge - - - held that a "concrete plan" to use circulators who do not live in the voting district, coupled with the clear intent of enforcement by California Secretary of State Bowen, is sufficient to confer standing.
In a footnote to this relatively brief opinion, the panel distinguished the Supreme Court’s February 26 decision in Clapper v. Amnesty International USA : "Unlike in Clapper, Plaintiffs’ fear of enforcement here is actual and well-founded and does not involve a 'highly attenuated chain of possibilities.' "
Thus, the question of whether states can impose residency requirements for those who gather signatures without violating the First Amendment is a live case or controversy in a California district court.
Wednesday, February 27, 2013
The Supreme Court today heard oral arguments in Shelby County v. Holder, the case testing the constitutionality of the preclearance provision and related coverage formula of the Voting Rights Act. If the questions at arguments are any indication of the Court's leaning--and it's always dicey to predict based on arguments, but here perhaps less so than in a more ordinary case--it looks like preclearance or the coverage formula or both will go down by a close vote.
Section 5 of the VRA, the preclearance provision, provides that "covered jurisdictions" (defined under Section 4(b)), have to get permission from the Justice Department or a federal court in the District of Columbia before making changes to their election laws. This means that jurisdictions need to show that proposed changes to their election laws aren't motivated by race and won't result in disenfranchising voters or dilluting votes by race. This extraordinary remedy is justified in part because the more usual way of enforcing voting rights--individual suits against offending jurisdictions--is not an effective way to address voting discrimination. (Individual suits, by a voter or by the Department of Justice, are authorized by Section 2 of the VRA. Section 2 is not at issue in this case.)
Shelby County, which sits within fully covered Alabama, brought the facial challenge against Section 5, the preclearance provision, and Section 4(b), the coverage formula, as reauthorized by Congress in 2006, arguing that Congress exceeded its authority under the Fourteenth and Fifteenth Amendments. In particular, Shelby County claimed that Congress didn't have sufficient evidence in its 2006 reauthorization to require the covered jurisdictions to seek permission (or preclearance) from the Justice Department or the District Court in the District of Columbia before making any change to its election laws. Shelby County also said that preclearance for the covered jurisdictions violated principles of federalism and equal sovereignty among the states.
The arguments were lively, to say the least. The justices seemed to be arguing with each other more than questioning the attorneys, who often seemed more like bystanders in a debate among the nine. And they all seemed to have their minds made up, more or less. If there are swing votes, look to Chief Justice Roberts or Justice Kennedy. Although they seemed set in their positions, they seemed perhaps the least set.
Substantively, there were few surprises. Remember, we've heard these arguments before--in the NAMUDNO case, which the Court ultimately resolved by allowing the jurisdiction to bail out (and thus avoided the constitutional question, although the parties briefed it and it got attention at oral argument). So these points that came up today are familiar:
- Whether Congress had sufficient evidence to warrant preclearance for selected covered jurisdictions;
- Whether the Section 4(b) coverage formula, which dates back 40 years or so, is sufficiently tailored to the realities of voting discrimination in 2013--that is, whether some covered jurisdictions under this formula really ought not to be covered, and whether others should be covered, given contemporary disparities in registration and offices held and other indicia of voting discrimination;
- Whether Congress violated principles of equal state sovereignty by designating only selected jurisdictions as covered (rather than designating the whole country);
- Whether Section 2 individual suits are a sufficient way to enforce non-discrimination in voting (and therefore whether Section 5 is really necessary); and
- Whether with a string of reauthorizations preclearance will ever not be necessary.
On this last point, it was clear that for some justices the government was in a tough spot. On the one hand, the government argued that Section 5 deters voting discrimination: Sure, things have gotten a little better since 1965, it said, but Section 5 is still justified because it deters against a back-slide. But on the other hand, some on the Court wondered whether under this theory Section 5 would ever not be necessary. (By this reckoning, the government would be justifying Section 5 even when there's no evidence of continued discrimination.)
All this is to say that a majority seemed unpersuaded that this preclearance requirement and this coverage formula were sufficiently tailored--proportionate and congruent, the Court's test--to meet the constitutional evil of voting discrimination that Congress identified.
This doesn't mean, necessarily, that the whole scheme will go down. There is an intermediate position: The Court could uphold Section 5 preclearance in theory, but reject the coverage formula in Section 4(b). But this result would likely doom the whole scheme, in fact. That's because it seems unlikely that Congress could pass a different coverage formula or that Congress would extend preclearance to the whole country. Without specifying coverage in a new Section 4(b), Section 5 would be meaningless.
There was a low point. Justice Scalia went on a tear toward the end of SG Verrilli's argument, opining on why Congress passed each reathorization with increased majorities:
Now, I don't think that's attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It's been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.
It's not exactly clear what's the "racial entitlement" in Section 5. Section 5 is simply not an entitlement provision. But if we have to identify an entitlement: Maybe the right to vote, without being discriminated against by race? If so, we can only hope that it's "very difficult to get out of [it] through the normal political processes." As much as anything else in the arguments today, this comment may tell us exactly why we continue to need preclearance, sadly, even in 2013.
February 27, 2013 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, Fourteenth Amendment, Fundamental Rights, News, Oral Argument Analysis, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)
In its opinion in Moore-King v. County of Chesterfield, a panel of the Fourth Circuit has upheld the constitutionality of ordinances specifically directed at those defined as "fortune tellers." The fortune tellers must have a business license, like all other businesses, but must also:
- have a special permit from the Chief of Police, the application for which must include biographical information, fingerprints, criminal history, and an authorization for a background check;
- pay a license tax of $300;
- be located within particular business districts, excluding certain other business districts.
As to the free speech claim, the Fourth Circuit disagreed with the district judge's finding that the Moore-King's practice was inherently deceptive and thus categorically excluded from First Amendment protection. In support, the panel interestingly replied upon United States v. Alvarez (the "Stolen Valor case). Yet the panel then struggled with the appropriate First Amendment doctrine that should be applied - - - a not unusual situation in First Amendment litigation - - - rejecting the commercial speech doctrine and time, place or manner analysis and settling upon what it named the "professional speech doctrine."
As the government complies with the professional speech doctrine by enacting and implementing a generally applicable regulatory regime, the fact that such a scheme may vary from profession to profession recedes in constitutional significance. Just as the internal requirements of a profession may differ, so may the government’s regulatory response based on the nature of the activity and the need to protect the public. [citation omitted] With respect to an occupation such as fortune telling where no accrediting institution like a board of law examiners or medical practitioners exists, a legislature may reasonably determine that additional regulatory requirements are necessary.
The panel then engaged in little analysis, except to say that this did not mean that the government had "carte blanche" but that it held that the government "regulation of Moore-King's activity falls squarely within the scope of that doctrine."
As to Free Exercise, the panel rejected Moore-King's qualifications to assert the claim:
Moore-King’s beliefs more closely resemble personal and philosophical choices consistent with a way of life, not deep religious convictions shared by an organized group deserving of constitutional solicitude.
In addition to the First Amendment claims, Moore-King had also challenged the regulatory scheme on the basis of Equal Protection, although this argument was largely predicated upon her First Amendment interests as the fundamental rights that would trigger strict scrutiny. Again, the Fourth Circuit affirmed the district judge's grant of summary judgment in favor of the government.
This is a case ripe for critique and would make a terrific subject for student scholarship.
February 27, 2013 in Equal Protection, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Opinion Analysis, Religion, Speech, Teaching Tips | Permalink | Comments (0) | TrackBack (0)
Monday, January 7, 2013
Pamela Karlan's "Democracy and Disdain" is the Forward to Harvard Law Review's annual Supreme Court issue for the 2011 Term and is a compelling - - - indeed, necessary and delightful - - - read. Karlan's central thesis, as the title aptly communicates, is that the Roberts' Court has little but disdain for the democratic process. By "Roberts' Court," of course, she means the five Justices who usually form the majority, including Roberts, Scalia, Thomas, Alito, and Kennedy.
The Roberts Court’s narrow substantive reading of enumerated powers maps fairly closely onto the contemporary conservative political agenda. To the extent that the conservative agenda gains popular acceptance, the Court may garner acclaim as a guardian of constitutional values. But if the public rejects that agenda, or remains sharply divided, the Court risks being perceived as simply another partisan institution. The Court’s current status rests in substantial measure on its having been on the right side of history in Brown v. Board of Education. Only time will tell whether the Court will retain that status given the choices the Roberts Court is making.
Karlan is adept at comparing the present Court to previous ones, not only including the Warren Court. Spoiler alert: When she quotes Justice Roberts, she might not be quoting the 2012 John Roberts but the 1936 Owen Roberts, a device she uses to especially good effect. Also to good effect is her usage of other justices, colloquies in oral argument, the occasional poet, and theorist. The writing is broad and engaging without being precious. It makes her analysis of the cases even more trenchant, situated in larger themes and trends.
Of course, not all ConLawProfs will agree with Karlan's views of the Court, including one subsection entitled "Protecting Spenders and Suspecting Voters," and another "Suspecting Congress." And Karlan's argument is hardly unique, as anyone who recalls Rehnquist Court scholarship, including the excellent 2001 article "Dissing Congress," by Ruth Colker and James J. Brudney can attest. And it is especially noteworthy that the Court did uphold the constitutionality of the Affordable Care Act in National Federation of Independent Business v. Sebelius, a case that Karlan extensively discusses and more interestingly, situates within the Term's other less notable decisions.
But this is a must read article before beginning the new semester.
[image of Pamela Karlan via]
January 7, 2013 in Courts and Judging, Due Process (Substantive), Elections and Voting, Fifteenth Amendment, First Amendment, Fourteenth Amendment, History, Interpretation, Race, Recent Cases, Reconstruction Era Amendments, Scholarship, Separation of Powers, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Friday, January 4, 2013
In September, the Ninth Circuit rendered its opinion in McCormack v. Hiedeman regarding the constitutionality of Idaho's "unlawful abortion" statutes that makes it a felony for any woman to undergo an abortion in a manner not authorized by statute. McCormack had been charged by the prosecutor Mark Hiedeman based on her procurement of abortion "medications" over the internet. The court held that imposing a criminal sanction on a woman poses an undue burden under Casey, but the decision was restricted to McCormack given the absence of class certification.
But who is Jennie Linn McCormack? And how common is procuring abortion "medications" via the internet?
Journalist Ada Calhoun's cover article in this month's The New Republic, "The Rise of DIY Abortions," paints a vivid portrait of Jennie Linn McCormack, as well as her attorney ("an avid fan of The Girl with the Dragon Tattoo books. He saw the character of dogged reporter Mikael Blomkvist as a good role model for a lawyer. . . ").
Calhoun also contextualizes McCormack's situation:
Determining how many American women have had home abortions is
exceedingly difficult: The Centers for Disease Control and Prevention
does not track illegal abortions. There is no blood test for drugs like
Cytotec, and so such an abortion is indistinguishable from a natural
miscarriage, even to a doctor. However, the proliferation of online
dispensers suggests a rising demand. There are thousands of websites
selling Cytotec for as little as $45 to $75 (compared with $300 to $800
for a legal medicated abortion in a clinic). Some claim to offer the
harder-to-come-by Mifeprex, but may in fact be peddling Cytotec, or
aspirin, or nothing at all. (Possible sources for the drugs include
Mexico, where Cytotec is available over the counter, or even the United
States, since it’s also prescribed here as an ulcer medication.)
The question of how drugs like Mifeprex and Cytotec are sold and administered is emerging as the next major front in the abortion debate.
Calhoun's article is a must-read for anyone teaching, writing, or thinking about abortion and is sure to be discussed at the many conferences devoted to Roe v. Wade's 40th anniversary, such as this one at the NYC Bar.
January 4, 2013 in Abortion, Current Affairs, Due Process (Substantive), Family, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Recent Cases, Teaching Tips | Permalink | Comments (0) | TrackBack (0)
Tuesday, December 11, 2012
Is a specialty license plate government speech permissible under the First Amendment? In a 21 page opinion and order in ACLU of North Carolina v. Conti, Senior United States District Judge James Fox held that North Carolina's "choose life" specialty license plate scheme was not protected government speech and therefore enjoined the issuance of such license plates.
Judge Fox described the North Carolina scheme as unique in comparison to other state statutory schemes and likewise noted that the legislature rejected offering other specialty plates that would have expressed an opposing view, such as "respect choice."
The central issue in the case, however, was whether the "choose life" specialty license plate could be described as "government speech" and thus protected under First Amendment doctrine as articulated in Rust v. Sullivan and most recently in the Court's unanimous 2009 opinion in Pleasant Grove City v. Summum.
Judge Fox rejected the state's argument that the degree of government control was "the" single factor test. Instead, Judge Fox relied upon the Fourth Circuit's four factor test:
- the central purpose of the program in which the speech in question occurs
- the degree of editorial control exercised by the government and private parties
- the identity of the literal speaker
- whether the government or private entity bears the ultimate responsibility for the speech
Judge Fox noted that these factors were consistent with Supreme Court precedent and that the Fourth Circuit had employed them recently.
Applying these factors, Judge Fox found that although the state exercised editorial control (despite the fact that the design and idea originated with a national organization outside the control of the state), the other factors weighed in favor of private, or hybrid private-state speech.
Judge Fox's order closed the case; it is sure to be appealed. Meanwhile, North Carolina car owners are not relegated to the standard license plate: Judge Fox's opinion states that there are 150 types of specialty license plates available in the state. More information is available here.
Thursday, December 6, 2012
Emily J. Martin, Vice-President and General Counsel at the National Women's Law Center, published an American Constitution Society Issue Brief that argues that the Supreme Court's ruling last summer on the ACA's Medicaid expansion in Nat'l Fed. of Ind. Business v. Sebelius does not threaten Title IX.
Recall that the Court ruled in NFIB that Congress exceeded its authority in enacting the Medicaid expansion component of the ACA. The Medicaid expansion provision provided generous federal financial assistance for states that expanded their Medicaid programs to reach those up to 133% of the federal poverty level. Some states balked, arguing that this was way too heavy-handed, given the size of Medicaid and their reliance on it. In other words, states argued that Congress couldn't force them to choose between expanding their Medicaid programs and foregoing all federal Medicaid funding.
The Supreme Court agreed. Chief Justice Roberts wrote for a plurality that Medicaid expansion was a new program, not just an addition to the existing Medicaid program, and that the sheer size of Medicaid--and the threat of its entire loss--made the ACA's Medicaid expansion unduly coercive on the states. At the same time, the plurality wrote that Congress could condition receipt of incremental and additional Medicaid funds under the ACA on a state's expansion of Medicaid.
Some thought that this approach to Congress's spending power threatened other federal spending programs, in particular Title IX. Title IX prohibits public and private educational institutions that receive federal funds from discriminating on the basis of sex. Some suggested that under NFIB, Title IX, like Medicaid expansion, might be unduly coercive, because it might require an educational institution to forego all federal funding if it discriminates against women.
Martin says this is wrong. She writes that NFIB doesn't even apply Title IX and private educational institutions: NFIB's approach--and the Spending Clause approach generally--is concerned about coercion of states, not private actors. As to states, she argues that unlike the ACA's Medicaid expansion, Title IX operates to limit the termination of federal funds "to the particular program . . . in which . . . noncompliance has been so found." 20 U.S.C. Sec. 1682. In short, noncompliant state institutions wouldn't stand to lose their entire federal educational budget (as they could stand to lose their entire Medicaid budget under the ACA); instead, they'd lose only that portion tied to the sex discrimination.
Martin says that Title IX is protected from NFIB for another reason: Congress also had authority to enact Title IX under Section 5 of the Fourteenth Amendment. She argues that this belt on top of the Spending Clause's suspenders ensures that Title IX is well within congressional authority.
Wednesday, December 5, 2012
The Oklahoma Supreme Court has held its restrictive abortion statute, HB 2780, unconstitutional in two opinions yesterday, affirming lower courts: Nova Health Systems v. Pruit and Oklahoma Coalition for Reproductive Justice v. Cline.
The nine supreme court justices, "representing" each of the nine judicial districts of the state,
issued the terse (and nearly identical) opinions, the only difference being a recusal of one of the Justices in Pruit. The opinion(s) provided in full:
¶1 This is an appeal of the trial court's summary judgment which held House Bill 1970, 2011 Okla. Sess. Laws 1276, unconstitutional. Upon review of the record and the briefs of the parties, this Court determines this matter is controlled by the United States Supreme Court decision in Planned Parenthood v. Casey, 505 U.S. 833 (1992), which was applied in this Court's recent decision of In re Initiative No. 395, State Question No. 761, 2012 OK 42, cert. den. sub nom. Personhood Okla. v. Barber et al., 81 U.S.L.W. 3065 (U.S. October 29, 2012) (No. 12-145).
¶2 Because the United States Supreme Court has previously determined the dispositive issue presented in this matter, this Court is not free to impose its own view of the law. The Supremacy Clause of the United States Constitution provides:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. Const. Art. VI, cl. 2. The Oklahoma Constitution reaffirms the effect of the Supremacy Clause on Oklahoma law by providing: "The State of Oklahoma is an inseparable part of the Federal Union, and the Constitution of the United States is the supreme law of the land." Okla. Const. art. 1, § 1. Thus, this Court is duty bound by the United States and the Oklahoma Constitutions to "follow the mandate of the United States Supreme Court on matters of federal constitutional law" In re Initiative Petition No. 349, State Question No. 642, 1992 OK 122, ¶ 1, 838 P.2d 1, 2; In re Petition No. 395, 2012 OK 42, ¶ 2.
¶3 The challenged measure is facially unconstitutional pursuant to Casey, 505 U.S. 833. The mandate of Casey remains binding on this Court until and unless the United States Supreme Court holds to the contrary. The judgment of the trial court holding the enactment unconstitutional is affirmed and the measure is stricken in its entirety.
Thus, the court rests its decision on the Supreme Court's holding in Casey, and not, as some reports have suggested, state constitutional law. The matter is thus suitable for a petition for writ of certiorari to the United States Supreme Court.