Thursday, February 11, 2016
A three-judge federal district court last week ruled in Harris v. McCrory that two of North Carolina's congressional districts violated equal protection, because the state impermissibly used race as a predominant factor in drawing them.
The state claimed that it used race in one of the districts to comply with the Voting Rights Act. But the court rejected that claim, saying that even if compliance with the VRA is a compelling government interest, the state failed to demonstrate that it used race in a narrowly tailored way.
The court ordered the state to redraw the districts quickly, within two weeks, although the state has already asked the Supreme Court for a stay pending appeal.
North Carolina is notorious for its shenanigans with elections and voting. Recall that the state moved quickly to tighten voting requirements after the Supreme Court in Shelby County released it and other covered jurisdictions from the preclearance requirement in Section 5 of the VRA.
The case raises an important question, yet unanswered by the Supreme Court (but assumed for the purpose of further analysis in its cases), whether compliance with the Voting Rights Act (avoiding Section 2 liability, and avoiding the Section 5 non-retrogression rule in previously covered jurisdictions) can be a compelling government interest that could justify race-based redistricting. If so, the problem, addressed last Term in Alabama State Legislature, is that a state might then use race to pack black voters into districts in a way that dilutes their influence in other districts. The Supreme Court in Alabama gave four principles for courts to use in evaluating these kinds of claims (and remanded that case for further proceedings), but it didn't categorically answer the question whether and when states might use race to comply with the VRA (even if only putatively).
The case challenges North Carolina Congressional Districts 1 and 12. These were not majority-minority districts (majority-Black Voting Age Population, or "BVAP," districts) going into the 2010 census, but "African-American preferred candidates easily and repeatedly won reelection under those plans."
After the 2010 census, legislators engaged Dr. Thomas Hofeller, who served as redistricting coordinator for the Republican National Committee for the 1990, 2000, and 2010 redistricting cycles, to design and draw the 2011 Congressional Redistricting Plan. On instructions from legislators (which, they said, were based on VRA concerns), the 2011 plan increased the percentage of the BVAP in districts 1 and 2 so that they became majority-minority districts. DOJ precleared the plan, in the days before Shelby County, when preclearance was still a thing.
A prior state supreme court ruling held that race was the predominant factor in drawing CD 1, but that the state had a compelling government interest in using race to draw CD 1 to comply with the VRA. It also held that race was not a factor in drawing CD 12. The state high court thus found no violation of the Equal Protection Clause.
Plaintiffs in this federal case argued that the state used compliance with Section 5 as a pretext for packing black voters into CDs 1 and 12 in order to reduce those voters' influence in other districts.
The court ruled that "plaintiffs have presented dispositive direct and circumstantial evidence that the legislature assigned race a priority over all other districting factors in both CD 1 and CD 12." The court went on to say that even if compliance with the VRA is a compelling government interest for CD 1 (a point the court assumed, without deciding), the legislature's use of race in drawing the districts was not narrowly tailored to meet that interest: "Evidence of narrow tailoring in this case is practically nonexistent." (The state didn't give a compelling government interest or argue narrow-tailoring for CD 12.)
The next word on the case will come from the Supreme Court, which should rule soon whether to the stay the three-judge court's ruling pending North Carolina's appeal.
Wednesday, February 10, 2016
Check out the ACSBlog, where Prof. Shoba Sivaprasad Wadhia (Penn State) writes about her new book, Beyond Deportation: The Role of Prosecutorial Direscretion in Immigration Cases. With the Court's review of DAPA looming, Prof. Wadhia writes, "As law students and scholars grapple with the wave of headlines or latest litigation question faced by the courts on the question of prosecutorial discretion, my hope is that they gain a better understanding of the historical role of and legal foundation for prosecutorial discretion in immigration cases and the extent to which compassion has served as the foundation for how such decisions are made."
Saturday, February 6, 2016
A sharply divided panel of the Fourth Circuit ruled this week that Maryland's assault-weapon ban is subject to the most stringent constitutional test, strict scrutiny. The ruling all but ensures that the ban will fall when the Second Amendment challenge, Kolbe v. Hogan, goes back to the district court on remand.
The ruling is a dramatic split from similar rulings in other circuits. The D.C. Circuit and the Second Circuit both applied intermediate scrutiny to similar bans; the Seventh Circuit applied its own test (distinct from a traditional tier of review), and the Supreme Court declined to review that ruling just this past December.
Given this trend, the Fourth Circuit's ruling is a little more than surprising. But the majority said that Maryland's flat ban on assault weapons and large-capacity magazines cut to the core of the Second Amendment (self-defense within the home) and left no room for possession of these kinds of weapons. That was enough to justify strict scrutiny, said the majority.
The dissent, in contrast, noted that Heller itself left room for this kind of regulation, and that sister circuits have applied a lower level of scrutiny.
The ruling is not final: the panel sent the case back to the district court for application of the strict scrutiny standard. Still, this all but guarantees that the courts will strike the ban, handing a significant victory to gun-rights advocates, dealing a blow to advocates of gun regulations, and throwing a wrench into the jurisprudence on assault-weapon bans in the circuits.
Friday, February 5, 2016
Arizona Governor Doug Ducey, Senator Jeff Flake, and Representative Matt Salmon last week called for removal of Arizona from the Ninth Circuit.
Why? Because it's the most "overturned and overburdened court in the country," according to their statement.
(Governor Ducey wrote to Speaker Ryan and Majority Leader McConnell late last year with a similar call.)
Matt Ford over at The Atlantic gives some more history and context, and notes that "the state's continuous record of defeat [at the Ninth Circuit] couldn't have been far from their minds."
Wednesday, February 3, 2016
The Sixth Circuit ruled today that a state-court judge and clerk were immune from a suit for monetary damages for jailing plaintiffs for failure to pay their fines and court costs for low-level misdemeanors.
The case, Ward v. City of Norwalk, arose when Norwalk Municipal Court Judge John Ridge issued bench warrants for the plaintiffs' arrests for failing to pay their fines and court costs. (Ohio law authorizes this and sets a $50 per day rate.) Judge Ridge directed Clerk Pamela Boss to issue the warrants; Boss complied; and the plaintiffs were arrested and served time.
The plaintiffs sued for monetary damages, injunctive relief, and declaratory relief on a couple theories under 1983. (They also sued under state law claims, not at issue on appeal.) The court dismissed all but one--the plaintiffs' request for declaratory relief, and that probably will go away on remand.
The court held that the Eleventh Amendment barred the plaintiffs' suit for monetary damages against Judge Ridge and Clerk Boss, because they're employees of the Municipal Court, a state agency. (The court rejected the plaintiffs' argument that municipal corporations within the Municipal Court's jurisdiction are responsible for monetary damages, and so the court is identical to a municipality and not an arm of the state.) The court held that Judge Ridge and Clerk Boss enjoyed judicial immunity against claims against them in their official capacity.
As to injunctive and declaratory relief: the court pointed to the plain language of 1983, which requires the plaintiffs to show that a judicial officer violated a declaratory decree, or that declaratory relief was unavailable, before getting an injunction. The court thus dismissed the plaintiffs' request for an injunction. But it recognized that the plaintiffs' claim for declaratory relief could go on under Ex Parte Young, so it remanded to the district court to determine whether abstention, Rooker-Feldman, or the mootness doctrine barred the case from proceeding.
Tuesday, February 2, 2016
A divided panel of the Sixth Circuit ruled today that a county lacks standing to challenge the construction by another municipality of a sewer line, because the new line didn't compete with the old one, as prohibited by federal law.
The case involves an obscure federal statute, 7 U.S.C. Sec. 1926(b), that says that any sewer provider that owes money to the U.S. Department of Agriculture is protected from competition with other sewer providers. Trumbull County, as it turns out, owes money to the Department for its sewer lines, and so is protected from competition under the statute. And when the Village of Lordstown constructed sewer lines that could serve GM's Lordstown plant and a neighboring trailer park, in competition with the County's sewer lines, the County sued.
But there was one problem: Lordstown's lines aren't (yet) operative.
The lower court ruled against the County on the merits, concluding that Lordstown's lines didn't compete, because they weren't operative.
The Sixth Circuit went in a different direction, and said that the County lacked standing--because it couldn't allege an injury (competition) under the statute.
Judge Rogers said the whole thing stinks. He dissented, writing that "[i]f a neighbor increases the risk to your property, e.g., by removing a floodwall, you have standing to challenge the removal, even if the flood is not impending and indeed may never occur." So too here: "The plaintiff by winning would obtain insurance against a costly albeit uncertain hit to its tax base, the very possibility of which would at some level immediately reduce confidence in the long-term financial health of the county."
Friday, January 29, 2016
The D.C. Circuit ruled today in In Re: Idaho Conservation League that environmental organizations had standing to challenge EPA's failure to issue financial assurance regulations under CERCLA, and that the court could therefore grant the parties' joint motion for an order establishing an agreed upon schedule for rulemaking.
The upshot is that the court now approved the parties' agreement that the EPA will commence rulemaking to issue financial assurance regulations for the hardrock mining industry, and that the agency will consider whether other industries should be involved with financial assurance rulemaking.
The standing part of the ruling hinges on financial incentives: The plaintiffs had standing not because new regs would certainly redress their injuries, but because they created a financial incentive to.
The case involves a CERLCA requirement that EPA issue "financial assurance" regulations--so that entities potentially responsible for the release of hazardous substances can put aside funding, or demonstrate that funding is available, for cleanup. But despite the statutory requirement, EPA never got around to issuing the regs.
Enter the plaintiff environmental organizations. They sued, seeking a court order to force EPA to commence rulemaking. After oral argument, the parties agreed on a schedule for rulemaking for the hardrock mining industry, and a timetable for EPA to determine whether to engage in financial assurance rulemaking for any of three other industries under consideration.
But the court had to satisfy itself that it had jurisdiction before it would sign off. In particular, the court said it had to determine if at least one of the plaintiffs had standing.
The court said at least one did. The court said that at least one of the plaintiff organizations had at least one member who suffered harm, because the member was affected by hazardous releases from hardrocking mining. The court went on to say that EPA's financial assurances regs would redress that harm, because the regs would create a financial incentive to decrease pollution. Here's the court:
With respect to mitigating ongoing hazardous releases, the lack of financial assurance requirements causes mine operators to release more hazardous substances than they might if such financial assurance requirements were in place. . . . . In view of [mine operators' common practice of dodging cleanup costs by declaring bankruptcy and sheltering assets], financial assurances would strengthen hardrock mining operators' incentives to minimize ongoing hazardous releases. By making it more difficult for mine operators to avoid paying for the cleanup of their hazardous releases, basic economic self-interest means the operator will take cost-effective steps to minimize hazardous releases in order to minimize their environmental liabilities.
According to the court, it "has long relied on such economic and other incentives to find standing," and "[t]his incentives-based theory of standing is further supported by congressional and agency assessments." This is so, said the court, even though hardrock mining is already subject to some financial assurance requirements. That's because the new regs will fill the gaps in protection.
The court said that the regs would also expedite cleanup efforts, thus reducing the time that plaintiffs are exposed to hazards.
The ruling gives the force of a federal court order to the parties' agreement that EPA will commence rulemaking on financial assurances for hardrock mining, and will consider adding other industries.
Thursday, January 28, 2016
Judge Paul Friedman (D.D.C.) ruled today in ANSWER v. Jewell that the National Park Service regs setting aside a portion of the Presidential inauguration route for the inauguration committee and banning sign supports do not violate free speech.
The case challenged NPS regulations that set aside 18% of the sidewalk and park space along the inauguration parade route for the Presidential Inauguration Committee, a private, non-profit that represents the interests of the President-Elect, and requires other groups that wish to protest or speak to get a permit. Judge Friedman upheld the regulation against a First Amendment challenge, ruling that the PIC was government speech (under the factors in Walker v. Texas and Pleasant Grove City v. Summum), that the set-aside for PIC therefore did not constitute viewpoint-based discrimination against other groups that wished to speak against PIC's message, and that the set-aside and permit requirement were content neutral and otherwise satisfied the test for speech in a public forum.
Judge Friedman also ruled that the ban on sign-supports was content-neutral and satisfied the public forum test. (The government's interests were safety--sign-supports could be used as a weapon--and marshaling parade viewers through security checkpoints quickly and efficiently.) Judge Friedman noted that this ruling conflicted with the Ninth Circuit in Edwards v. Coeur d'Alene, however: the Ninth Circuit said in that case that a ban on sign-supports failed to leave open ample alternative channels of communication, because "there is no other effective and economical way for an individual to communicate his or her message to a broad audience during a parade or public assembly than to attach a handle to his sign to hoist it in their air."
The plaintiff in the case, the anti-war and anti-racism group ANSWER, may have inadvertently contributed to the result: Judge Friedman wrote at several points in the opinion that ANSWER had touted its previous protests, under similar restrictions, as successful--apparently demonstrating that ANSWER can get its message out effectively (that it has ample alternative channels for communication) even with the NPS regs.
Tuesday, January 26, 2016
Thursday, January 21, 2016
William Perry Pendley, writing at the National Review, sets out the constitutional case against federal land ownership in the West.
He writes that "[t]he Founding Fathers intended all lands owned by the federal government to be sold," and that "[p]lacement of the Property Clause in Article IV demonstrates the Founder's intention to not provide Congress with absolute power over federal lands; otherwise the provision would have been in Article I." He also points to the Enabling Acts under which states were admitted to the Union.
Something about [the disparities in federal land ownership between the states] seems unfair. After all, in Shelby County v. Holder in 2013, Chief Justice Roberts, writing for the Court, declared: "Not only do States retain sovereignty under the Constitution, there is also a 'fundamental principle of equal state sovereignty' among the States. . . . Over a hundred years ago, this Court explained that our Nation 'was and is a union of States, equal in power, dignity and authority.'" Where--one wonders, considering the fate of Josephine County, which after all is but an arm of the state of Oregon--is the "dignity in what has befallen its residents?
The Sixth Circuit ruled this week in Citizens in Charge v. Husted that Ohio Secretary of State Jon Husted enjoyed qualified immunity against a damages claim that arose out of his enforcement of Ohio's law that prohibits out-of-staters from circulating petitions within the state to propose new legislation and constitutional amendments.
The court granted immunity because it said that Ohio's law didn't clearly violate the Constitution. In support, it pointed to a circuit split on the question whether a state law that requires in-state residency to circulate a petition violates the First Amendment.
In so ruling, the court came close to saying that an official's enforcement of a state statute is per se reasonable, if no court has (yet) ruled the law unconstitutional--a result that puts a heavy thumb on the scale in favor of qualified immunity (and against plaintiffs who seek to recover damages for constitutional torts). The outer boundary is only when a law is "grossly and flagrantly unconstitutional." (The court gave as one example separate-but-equal racial discrimination.) The court explained:
So far as the parties' research has revealed and so far as our own research has uncovered, the Supreme Court has never denied qualified immunity to a public official who enforced a properly enacted statute that no court had invalidated. This indeed would seem to be the paradigmatic way of showing objectively reasonable conduct by a public official.
. . .
Any other approach would place risky pressures on public officials to second-guess legislative decisions. When faced with a statute of questionable validity, executive actors would find themselves forced to choose between applying the law (and subjecting themselves to monetary liability) or declining to do so (and subjecting themselves to a mandamus lawsuit). When personal liability is added to the mix, one could well imagine the balance tipping toward non-enforcement in close cases, all the while sacrificing the legislature's considered judgments about a statute's unconstitutionality. That is not a recipe for good government or for encouraging public officials to act independently.
Wednesday, January 20, 2016
The Supreme Court ruled today that a plaintiff's case does not become moot when the plaintiff rejects an offer of settlement for complete relief. The ruling means that a case can go on, even after a plaintiff rejects an offer of complete relief.
The ruling is a huge victory for plaintiffs, especially plaintiffs who might lead a class-action. It's also a sharp rebuke of the defense-side tactic to moot out a case or class action by offering full relief to the lead plaintiff--a tactic known as pick-off. By ruling for the plaintiff, and by rejecting the pick-off tactic, today's ruling is also a victory for access to justice, and stands in contrast to the spate of other Court rulings limiting access and favoring corporate defendants.
The case arose when Jose Gomez received an unwanted Navy recruitment text on his cell phone from Navy contractor Campbell-Ewald. Gomez sued Campbell-Ewald under the Telephone Consumer Protection Act. Before Gomez could move for class certification, however, the defendant offered complete relief; Gomez rejected the offer; and the defendant moved to dismiss the case as moot.
The Court ruled that the case was not moot. Justice Ginsburg, joined by Justices Kennedy, Breyer, Sotomayor, and Kagan, wrote that under basic contract principles, Campbell-Ewald's offer, once rejected by Gomez, had no continuing effect. With no settlement offer on the table, the parties retained the adversity necessary for an Article III case or controversy--so the rejected offer didn't render the case moot.
Justice Thomas concurred separately to argue that the result should "rest instead on the common-law history of tenders," not contract principles.
Chief Justice Roberts, joined by Justices Scalia and Alito, dissented. The Chief wrote that the rejected settlement offer meant that there was no longer any real dispute in the case:
If there is no actual case or controversy, the lawsuit is moot, and the power of the federal courts to declare the law has come to an end. Here, the District Court found that Campbell agreed to fully satisfy Gomez's claims. That makes the case moot, and Gomez is not entitled to a ruling on the merits of a moot case.
The Supreme Court ruled today in Kansas v. Carr that the Eighth Amendment does not require capital-sentencing courts to instruct juries that mitigating circumstances need not be proved beyond a reasonable doubt or that capital defendants who committed a joint crime be sentenced separately.
The ruling reversed a Kansas Supreme Court decision in favor of the criminal defendants.
The 8-1 ruling (Justice Sotomayor in dissent) reflects both the relatively simple questions in the case and the brutality of the crimes (described by Justice Scalia, for the Court, as "acts of almost inconceivable cruelty and depravity")--which made it easy for the Court to conclude that the sentencing proceeding wasn't unfair. (As to the joint sentencing, Justice Scalia wrote that "[i]t is beyond reason to think that" any prejudices that arose in the joint sentencing led to the death sentences: "None of that mattered. What these defendants did--acts of almost inconceivable cruelty and depravity--was described in excruciating detail by [a victim], who relived with the jury, for two days, the Wichita Massacre. The joint sentencing proceedings did not render the sentencing proceedings fundamentally unfair.").
As to the instructions on mitigating evidence, the Court said that the defendants' preferred instruction (that mitigating circumstances need not be proved beyond a reasonable doubt) was not only unnecessary under the Eighth Amendment, but would only lead to greater juror confusion in considering mitigation.
As to joint sentencing, the Court said that the Eighth Amendment doesn't require separate sentencing hearings for defendants in the same crime; and in any event, the errors or prejudices that the defendants alleged here couldn't possibly have actually prejudiced them, given the brutality of the crimes.
Justice Sotomayor filed the lone dissent. She argued that the Court shouldn't have taken the case in the first place, and that the Court's ruling could interfere with states' experimentation "with how best to guarantee defendants a fair trial."
Judge Amy Berman Jackson (D.D.C.) yesterday ordered the Attorney General to turn over certain post-February 4, 2011, documents generated in the executive branch over how to respond to congressional inquiries into the Fast and Furious program.
But don't chalk this up as a win for Congress. Judge Jackson ruled that the documents had to be turned over because the government had already revealed much of the content, in the publicly-available DOJ Inspector General report on the program, and not because they weren't otherwise protected by executive privilege.
If anything, this ruling is a win for the administration. That's because Judge Jackson ruled that documents related to how the government would respond to congressional and press inquiries were covered by deliberative process privilege--even if they failed the balance (but only because the government had already released their content).
In the end, though, maybe "split decision" best describes the ruling.
Judge Jackson's ruling is just the latest in the long-running dispute between the House Committee on Oversight and the administration. Recall that the Committee sought administration documents related to the Fast and Furious program, including post-February 4, 2011, documents discussing how the administration should respond to congressional requests for documents. (February 4, 2011, is significant, because that's the date when DOJ denied that it used the gun-walking tactic. DOJ later acknowledged the program. The Committee then expanded its investigation to include the circumstances of DOJ's initial denial, and why it took so long to tell Congress that its initial denial was wrong.)
Judge Jackson ruled that post-February 4, 2011, documents related to how the government would respond to congressional inquiries were protected under the deliberative process prong of executive privilege. (Under D.C. Circuit law, deliberative process covers communications between executive branch officials other than the President that are "crucial to fulfillment of the unique role and responsibilities of the executive branch." (Traditional executive privilege covers communications only between executive branch officials and the President.)) That's because they were both predecisional and deliberative, and fell within the kinds of communications that were covered under other circuit rulings. She also said that DOJ's list of those documents sufficiently showed that they were covered by the deliberative process privilege.
But coverage doesn't end the inquiry. The deliberative process privilege (like its parent executive privilege) is a qualified privilege, which means that the courts balance the government's interest against any counter-veiling interest in obtaining the privileged material. Here, Judge Jackson ruled that the Committee had an undisputed counter-veiling interest in oversight and investigation, and that DOJ had already released the content through the publicly-available OIG report:
What harm to the interests advanced by the privilege would flow from the transfer of the specific records sought here to the Committee when the Department has already elected to release a detailed Inspector General report that quotes liberally from the same records? The Department has already laid bare the records of its internal deliberations--and even published portions of interviews revealing its officials' thoughts and impressions about those records. While the defense has succeeded in making its case for the general legal principle that deliberative materials--including the sorts of materials at issue here--deserve protection even in the face of a Congressional subpoena, it can point to no particular harm that could flow from compliance with this subpoena, for these records, that it did not already bring about itself.
Judge Jackson also ordered DOJ to turn over eight documents over which DOJ asserted no privilege. She declined to order DOJ to turn over yet other post-February 4, 2011, documents that the parties are still wrangling over. (They can't agree on the scope of the Committee's request, and the court declined to intervene.)
Tuesday, January 19, 2016
The Supreme Court today agreed to hear Texas v. United States, the case testing President Obama's deferred action program for parents of Americans and lawful permanent residents, or DAPA.
We posted on the Fifth Circuit's ruling here, including a summary of the arguments and analysis.
The case arose when Texas and twenty-five other states sued the federal government, arguing that DHS violated federal law (the Immigration and Naturalization Act) and the Take Care Clause of the Constitution, and failed to use APA notice-and-comment rulemaking, in adopting DAPA. A district court issued a nationwide injunction, and the Fifth Circuit affirmed, concluding that the states had a substantial likelihood of success on the merits of their INA and APA claims (but not ruling on the Take Care Clause claim). The courts also ruled that the plaintiffs had standing.
The government sought review at the Supreme Court, and today the Court agreed to hear the case. The issues include the INA and APA claims, and standing, and the Take Care Clause claim. This last one is a bit of a surprise, given that the Fifth Circuit did not rule on it. (The Court in its order today asked the parties to argue the issue.)
The Court could resolve the case on standing alone, by concluding that the states lack standing. After all, Texas's standing theory is hardly rock solid: it's based on Texas's costs in issuing drivers licenses to DAPA beneficiaries. But that's a voluntary cost--Texas doesn't have to issue the licenses in the first place. Moreover, plaintiffs don't usually have standing to challenge an executive lack of enforcement. A ruling against the plaintiffs on standing seems highly unlikely, however, especially now that the Court has asked for briefing on the Take Care question. It seems that the Court--or at least four Justices--want to get to the merits.
The case could affect the fates of about four million people and their children. It'll also be a significant addition to the Court's jurisprudence on standing and the Take Care Clause, and executive authority under the INA and APA notice-and-comment rulemaking.
Finally, it could have significant play in the presidential election: the Court will likely hear arguments in April and issue an opinion in June.
Wednesday, January 13, 2016
Texas Governor Greg Abbott revealed his plan this week for a constitutional convention. Writing in a lengthy diatribe against what he terms federal overreach, Abbott, in his report Restoring the Rule of Law with States Leading the Way, proposes these amendments:
I. Prohibit Congress from regulating activity that occurs wholly within one State.
II. Require Congress to balance its budget.
III. Prohibit administrative agencies--and the unelected bureaucrats that staff them--from creating federal law.
IV. Prohibit administrative agencies--and the unelected bureaucrats that staff them--from preempting state law.
V. Allow a two-thirds majority of the States to override a U.S. Supreme Court decision.
VI. Require a seven-justice super-majority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law.
VII. Restore the balance of power between the federal and state governments by limiting the former to the powers expressly delegated to it in the Constitution.
VIII. Give state officials the power to sue in federal court when federal officials overstep their bounds.
IX. Allow a two-thirds majority of the States to override a federal law or regulation.
Even with these pretty significant proposed changes, Abbott insists that "the Constitution already does all of this . . . [and] the Constitution itself is not broken." Instead, according to Abbot, "[w]hat is broken is our Nation's willingness to obey the Constitution and to hold our leaders accountable to it."
Check out this new Brennan Center report on the recent spate of sharply divided Supreme Court rulings that opened the spigot on money in politics.
In Five to Four, Brennan Center attorneys Lawrence Norden, Brent Ferguson, and Douglas Keith show how "six closely divided Supreme Court decisions in the last decade contributed to some of the most disturbing trends in American elections"--things like super PACs, dark money, unlimited corporate and union spending, and radically increased total contributions to candidates and parties. (Each of these gets its own chapter.)
Four of the nine justices strongly disagreed with these decisions, and if one more justice had joined them, our ability to regulate big money in politics, and to give ordinary Americans more of a voice in the political process, would be very different today.
In other words, the last few years of campaign financing are not "normal," or "inevitable," or "just the way things are." To the contrary, in the modern era, they are the aberrant result of a single swing vote on the Supreme Court, which upended decades of carefully crafted campaign finance laws, and they can be reversed.
Tuesday, January 12, 2016
Check out Prof. Barry Sullivan (LUC) and Prof. Megan M. Canty (LUC, now Wayne State)'s outstanding and just-posted piece on oral arguments at the Supreme Court: Interruptions in Search of a Purpose: Oral Argument in the Supreme Court, October Terms 1958-60 and 2010-12.
Sullivan and Canty undertook their study after then-Judge John G. Roberts, Jr., suggested soon before his appointment as Chief that "one thing that has remained fairly constant [since 1980] has been the level of questioning" at oral argument.
That's wrong, according to Sullivan and Canty. They say that lots of things have changed at the Supreme Court over time, and questioning is certainly one of them. And not in a good way.
Their results paint an all-too-familiar picture (check out our review of Monday's oral arguments in the fair-share case), and it's not particularly flattering to the Court. "In the older cases, the nature and shape of oral argument reflected what might be taken to be the traditional purposes of oral argument, but the more recent cases suggest a different dynamic." This new dynamic includes justices using "an advocate's limited time to state their own views and to joke or argue with each other," more personally invested justices, and justices "act[ing] as if oral argument were simply an opportunity for them to say what they would like to say about a case."
In any event, the "new oral argument" is not about the lawyers, who may often seem to be props, bystanders, or straight-men in the well of the Court. Nor is it about the parties, whose interests are at stake, or about the public. Oral argument seems to be for the Justices, and only for the Justices--time to be used in whatever ways they may find appealing at the moment. Indeed, one might say that it seems to be "all about them." But what the Court hopes to achieve through oral argument remains unclear.
The Supreme Court ruled today that Florida's capital sentencing scheme violates the Sixth Amendment, because it puts in the hands of the judge, not the jury, the critical findings necessary to impose the death penalty.
Florida law provides that a capital felon can only get a life sentence based on his or her conviction. But under an additional sentencing procedure, a capital felon can get death. It works like this: the judge in the additional sentencing proceeding conducts an evidentiary hearing before a jury; the jury, by majority vote, renders an "advisory sentence"; the judge then independently finds and weighs the aggravating and mitigating circumstances and enters a sentence of life or death. (The judge has to give the jury recommendation "great weight," but need not follow it.)
The Court held that this process violates the Sixth Amendment in light of Ring v. Arizona. In that case, an Arizona judge's independent factfinding exposed the defendant to a punishment greater than the jury's guilty verdict authorized. The Court struck the scheme, because under the Sixth Amendment (and Apprendi) any fact that "expose[s] the defendant to a greater punishment than that authorized by the jury's guilty verdict" is an "element" that must be submitted to a jury.
Justice Sotomayor wrote for the Court, including all but Justices Breyer and Alito. Justice Breyer wrote a separate concurrence; Justice Alito wrote the lone dissent.
The Supreme Court heard oral arguments yesterday in Friedrichs v. California Teachers Ass'n, the case testing whether a state's public-sector union fair-share requirement violates the First Amendment.
Answer: Almost certainly yes.
Few cases are predictable as this one, given the Court's lead-ups in Harris and Knox (both sharply criticizing Abood, the 40-year-old case upholding fair-share requirements against a First Amendment challenge). And few oral arguments foretell the Court's and the dissent's analyses and split so clearly as yesterday's argument.
The conservative justices, including Kennedy, have made up their minds against fair share (and in favor of overruling Abood). The progressives have made up their minds in favor of fair share (and keeping Abood on the books). Both sides rehearsed the arguments that we'll see when the opinion comes out later this year.
All this made the oral arguments seem unnecessary. And maybe they were. After all, those opposing fair-share didn't seem at all troubled by the absence of a factual record in this case--even though some amici briefed significant practical labor-relations problems that arose without fair share. Instead, those opposing fair share seemed perfectly willing to rely on their own intuition about how public-sector labor relations work.
The facts don't really matter, so why should the legal arguments, when everybody's minds are made up, anyway?
Some of the early discussion focused on the extent of fair-share opponents' First Amendment claim: does it apply only to public-sector unions, or also to private-sector unions? Michael Carvin, attorney for the fair-share opponents, was clear: it only applies to public-sector unions. That's because collective bargaining for public-sector unions inevitably involves public issues--so a fair-share requirement compels non-union-members to pay for public advocacy (with which they disagree). (Private-sector collective bargaining, in contrast, involves only private employment issues.) Moreover, Carvin said that it's not always so easy to sort out what union speech goes to collective bargaining issues, and what goes to other public advocacy--a problem administering Abood that goes to its stare decisis staying power (see below).
And that leads to Carvin's next point, a clever twist on the concern about free-riders: fair-share requirements don't serve the interest of avoiding free-riders (as conventional wisdom and Abood would have it); instead, fair-share requirements let the union free ride on non-members' fair-share contributions. Carvin turned the traditional free-rider concern on its head.
And the conservatives, including Justice Kennedy, accepted all this. (Chief Justice Roberts even added at one point that if unions are so popular, the traditional concern about free riders is "insignificant.") Indeed, Justice Kennedy stated the opponents' case as clearly (and certainly as concisely) as anyone yesterday:
But it's almost axiomatic. When you are dealing with a governmental agency, many critical points are matters of public concern. And is it not true that many teachers are -- strongly, strongly disagree with the union position on teacher tenure, on merit pay, on merit promotion, on classroom size?
And you -- the term is free rider. The union basically is making these teachers compelled riders for issues on which they strongly disagree.
Many teachers think that they are devoted to the future of America, to the future of our young people, and that the union is equally devoted to that but that the union is absolutely wrong in some of its positions. And agency fees require, as I understand it -- correct me if I'm wrong -- agency fees require that employees and teachers who disagree with those positions must nevertheless subsidize the union on those very points.
The progressives pushed back with stare decisis: shouldn't the Court give some weight to Abood? Carvin said that overruling Abood would actually better square the jurisprudence. But that didn't sit well with Justice Kagan:
So really what your argument comes down to is two very recent cases, which is Harris and Knox. And there you might say that Harris and Knox gave indications that the Court was not friendly to Abood. But those were two extremely recent cases, and they were both cases that actually were decided within the Abood framework. . . .
So taking two extremely recent cases, which admittedly expressed some frustration with Abood, but also specifically decided not to overrule Abood, I mean, just seems like it's nothing of the kind that we usually say when we usually say that a precedent has to be overturned because it's come into conflict with an entire body of case law.
Some on the left also wondered whether striking Abood also mean striking mandatory bar fees and mandatory student fees (previously upheld by the Court), and whether it would disrupt reliance interests (in the form of the thousands of public-sector union contracts that rely on it).
Look for all these points in the opinion, when it comes down. And look for the conventional 5-4, conservative-progressive split. If the result in this case wasn't clear going into arguments yesterday (though it was), then arguments yesterday certainly clarified it.
(The second question in the case--whether non-chargeable expenses need to follow an opt-in rule, instead of an opt-out rule, got very little attention. This issue, too, is all but decided, by the same split: the Court will almost certainly require opt-in.)