Monday, November 2, 2015

Court Hears Oral Arguments in Batson Challenge to Death Sentence

The Court heard oral arguments today in Foster v. Humphrey regarding a challenge to a 1987 conviction and death sentence by an all-white Georgia jury based on  Batson v. Kentucky (1986) applying equal protection principles to peremptory challenges in jury selection.

A seemingly new issue on the case involved whether or not the United States Supreme Court should be hearing the case at all.  While the Court granted certiorari to the Georgia Supreme Court (as we discussed and as the petition requested), the problem is that the Georgia Supreme Court had denied review . . . . for reasons that are unclear.  Was it discretionary? Was that discretion bounded?  Did the Georgia Supreme Court's denial of review for lack of a meritorous claim constitute a decision on the merits?  And even more complexly, did the Georgia state courts have an adequate and independent state ground - - - res judicata - - - under Michigan v. Long (1983)?  (Beth Burton, the attorney for Georgia seemed to concede this was not the case.)  And to add yet another layer of complexity, even if the United States Supreme Court decided it should review the matter, what exactly should it review? As Chief Justice Roberts asked, "In other words, are we addressing just whether there's arguable merit to the claim or are we addressing the claim on its own merits?"

On the merits of the Batson claim, the problem arises from the "smoking gun" of prosecutorial notes singling out the Black potential jurors in the case.  Although Steve Bright, attorney for Foster suggested that there was "an arsenal of smoking guns" here, Justice Scalia suggested that Foster had to "establish [in order ] to reverse the Georgia courts is that the new smoking gun, assuming that all the rest were not enough to demonstrate a Batson violation ­­ the new smoking guns would tip the scale."  Justice Kagan seemed to see it differently, suggesting to Beth Burton, the Georgia Deputy Attorney, that this was a clear Batson violation:

You have a lot of new information here from these files that suggests that what the prosecutors were doing was looking at the African-­American prospective jurors as a group, that they had basically said, we don't want any of these people.  Here is the one we want if we really have to take one.  But that there ­­ all the evidence suggests a kind of singling out, which is the very antithesis of the Batson rule.

Burton initially suggested that the prosecutors' notes highlighting Black jurors was that the prosecutor was preparing for a Batson challenge.  Justice Breyer expressed some incredulity at this based on the fact that prosecutors never previously advanced such a reason.  Justice Breyer also seemingly expressed incredulity at the prosecutors' argument that there were "40 different reasons" - - - other than race - - - meant that one was truly valid, rather than drawing an inference from the sheer number of reasons that they were invalid. 

Justice Kennedy, perhaps the decisive vote, seemed convinced the prosecutors committed a Batson violation: "They've ­­ - - - they've made a mistake - - - ­­ they've made a mistake of - - -­­ in Batson."  But Justice Kennedy was also quite vocal in pressing the attorneys on the procedural issue, which could be an escape hatch for the Court in what could prove to be a difficult case.




November 2, 2015 in Courts and Judging, Criminal Procedure, Equal Protection, Fourteenth Amendment, Oral Argument Analysis, Race, Supreme Court (US) | Permalink | Comments (0)

Wednesday, April 29, 2015

Court Takes on Lethal Injection

The Supreme Court heard oral arguments today in Glossip v. Gross, the case testing the constitutionality of Oklahoma's three-drug lethal injection cocktail. Our preview is here.

The case centers around Oklahoma's use of midazolam as the first drug in the cocktail. In particular the case asks whether midazolam, a sedative, reliably induces a sufficiently pain-free state so that the condemned prisoner wouldn't feel the intense pain associated with the second drug, potassium chloride. (Everyone agrees that potassium chloride alone causes intense pain and suffering. The pain is described as burning alive, or burning from the inside out.) If so, there's probably no constitutional problem with midazolam. (Under Baze, the Court upheld a different lethal injection protocol on the assumption, supported in the record, that the first drug reliably produced a deep, coma-like unconsciousness.) If not, however, Oklahoma's protocol may violate the Eighth Amendment.

But there's a problem: Nobody seems to know for sure. More: the state's expert's testimony at trial on a key point about how midazolam works was wrong--so much so that the state itself backed away from that testimony. That means that the district court's ruling, based on its conclusion that midazolam sufficiently protects against pain, based on the state's expert's testimony, is seriously flawed. (Justice Kagan described it as "gobbledygook." That seems about right.)

The Court focused principally on two questions today. The first, whether the state's use of midazolam reliably induces a sufficiently pain-free state so that the condemned prisoner wouldn't suffer from potassium chloride, seemed to divide the Court along conventional ideological lines. The progressive wing went with the condemned (against the use of midazolam), and the conservatives went with the state. The second question--whether the petitioners bear the burden to show that midazolam does not induce the state (and to identify a constitutional alternative for the state), or whether the state bears the burden to show that its use of midazolam does not cause intense pain and suffering--divided the Court the same way.

Justice Kennedy is probably the swing vote, but he was relatively quiet today. He only piped up when the arguments turned to whether the petitioners contributed to the problem in the first place. (Oklahoma started using midazolam because it couldn't gain access to the barbiturate drugs that more reliably protect against pain--and that the Court upheld in Baze. Oklahoma can't gain access to the barbiturate drugs because manufacturers have stopped supplying them, for ethical reasons, for use in lethal injections. Justice Alito suggested that opponents of the death penalty contributed to that situation, and that the Court shouldn't be complicit in this "guerrilla war" against the death penalty.) Justice Kennedy simply asked what relevance this all had to the case. Answer from the petitioners: none.

On one level, the case asks pretty narrow and technical questions about a particular drug and the burdens in proving an Eighth Amendment violation under Baze.

But on another level, the case potentially strikes a serious blow against the death penalty itself. That's because if the Court strikes Oklahoma's use of midazolam (whatever it does with the burden), Oklahoma and other lethal-injection states will have to look to a much less attractive alternative--something like electrocution, the gas chamber, or even a firing squad. (That's "much less attractive" on the barbarity scale, not the constitutional one (alas).) Some states have already moved in this direction. If that happens across the board, moves like this could erode public support for the death penalty. And if that's true, a ruling for the petitioners could be much more than a narrow, technical ruling on lethal injections: it could strike a serious practical blow against the death penalty itself.

April 29, 2015 in Cases and Case Materials, Criminal Procedure, Fundamental Rights, News, Oral Argument Analysis | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 28, 2015

Supreme Court Hears Same-Sex Marriage Arguments in Obergefell v. Hodges

The Court today heard oral arguments in two parts in the consolidated cases of Obergefell v. Hodges on certiorari from the Sixth Circuit opinion which had created a split in the circuits on the issue of the constitutionality of same-sex marriage bans.   There have been a record number of amicus briefs filed in the cases highlighting the interest in the case.

For oral argument on the first certified question - - -does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? - - - Mary Bonauto argued for the Petitioners; Solicitor Donald Verrilli argued for the United States as amicus curiae supporting Petitioners; and John Bursh, as Special Assistant Attorney for Michigan argued for Respondents. 

For oral argument on the second certified question - - - does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? - - -Douglas Hallward-Driemeier argued for Petitioners and Joseph Whalen, Associate Solicitor General of Tennessee, argued for Respondents.

The Court and the advocates acknowledged that the second question is only reached if the first question is answered in the negative: Justice Ginsburg and Justice Kagan both posited this principle with Hallward-Driemeier and Whalen, respectively, agreeing. Chief Justice Roberts noted that" we only get to the second question if you've lost on that point already, if we've said States do not have to recognize same-­sex marriage as a marriage," and later raised the issue of whether the second question made practical sense:

It certainly undermines the State interest that we would, assuming arguendo, have recognized in the first case, to say that they must welcome in their borders people who have been married elsewhere. It'd simply be a matter of time  until they would, in effect, be recognizing that within the State.


Donkey Hotey via

 The themes of the oral arguments held no surprising issues:

Is a same-sex marriage decision by the Court premature?  Interestingly, Justice Kennedy pointed out that it is "about the same time between Brown and Loving as between Lawrence and this case. It's about 10 years." 

Should it be the Court or the states that should decide?  The question of the proper role of judicial review has long preoccupied the courts in the context of same-sex marriage. Justice Scalia raised this issue several times, but when John Bursh raised it on behalf of Michigan, Justice Kagan responded that "we don't live in a pure democracy; we live in a constitutional democracy."

Is the race analogy apt?  Bursch distinguished Loving (as well as Turner v. Safley and Zablocki v. Redhail) because previous cases involved man-woman marriage and  "States' interest in linking children to their biological" parents.

Is there a slippery slope?  What about polygamous and incestuous marriages?  What about age of consent laws?

What about religious freedom?  How do we know that ministers won't be forced to perform "gay marriages"?

Should the case be resolved on Equal Protection or Due Process?  Justice Kennedy asked General Verrilli about Glucksberg,   Verrilli replied:

  1. GENERAL VERRILLI: Justice Kennedy, forgive me for answering the question this way. We do recognize that there's a profound connection between liberty and equality, but the United States has advanced only an equal protection argument. We haven't made the fundamental rights argument under Glucksberg. And therefore, I'm not sure it would be appropriate for me not having briefed it to comment on that.

  2. JUSTICE KENNEDY: Well, can you tell me why you didn't make the fundamental argument?

  3. GENERAL VERRILLI: Well, because we think ­­well, because we think while we do see that there is, of course, this profound connection, we do think that for reasons like the ones implicit in the Chief Justice's question, that this issue really sounds in equal protection, as we understand it, because the question is equal participation in a State conferred status and institution. And that's why we think of it in equalprotection terms

As an equal protection case, it is one about sexual orientation or sex discrimination?  One of the more interesting questions was posed by Chief Justice Roberts to Bursch:

Counsel, I'm ­­ I'm not sure it's necessary to get into sexual orientation to resolve the case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. And the difference is based upon their different sex. Why isn't that a straightforward question of sexual discrimination?

How is the state's interest in procreation related to the ban on same-sex marriage?  Justice Ginsburg, as well as others, posed questions about the elderly not being barred from marriage.
Is marriage a changing institution or is a constant for millennia?  Justice Ginsburg predictably noted that marriage was once "a dominant and a subordinate relationship," with women being subordinate, while Chief Justice Roberts disputed the fact that women's subordination (or coverture) was a universal aspect of marriage.
Does the Full Faith and Credit Clause, Article IV, guarantee a state will recognize another state's marriage?  Justice Scalia noted he was "glad" to be able to quote Article IV, "a portion of the Constitution that actually seems to be relevant," although there remained a lack of clarity in its applications.  Is a marriage a public act?  record?  judgment? 

The open question is whether the Court's opinion will be as predictable as the questions.

April 28, 2015 in Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, First Amendment, Fourteenth Amendment, Full Faith and Credit Clause, Fundamental Rights, Oral Argument Analysis, Religion | Permalink | Comments (0) | TrackBack (0)

Court to Hear Challenge to Lethal Injection Protocol

The Supreme Court will hear a challenge to Oklahoma's three-drug lethal injection protocol tomorrow, the last day of scheduled oral arguments for the Term. Here's an excerpt from my preview of the case, Glossip v. Gross, for the ABA Preview of United States Supreme Court Cases, with permission:


For many years, Oklahoma administered the death penalty using a three-drug lethal-injection protocol that included sodium thiopental, pancuronium bromide, and potassium chloride. The first drug, sodium thiopental, is a fast-acting barbiturate sedative that is designed to induce a deep, coma-like state of unconsciousness in the condemned. The second drug, pancuronium bromide, is a paralytic agent that is designed to inhibit all muscular-skeletal movements, thus paralyzing the diaphragm and stopping respiration. The third drug, potassium chloride, interferes with the electrical signals that stimulate heart contractions and thus induces cardiac arrest.

Since 2010, however, Oklahoma has been unable to obtain the first drug, sodium thiopental, for use in executions. Oklahoma used an alternative barbiturate, pentobarbital, for a brief period, but that drug, too, became unavailable for use in executions. (Oklahoma was not alone. Other states that used sodium thiopental in executions also saw their sources dry up. Those states, too, turned to pentobarbital or a similar barbiturate capable of producing a deep coma. But soon enough, the sources for pentobarbital also dried up.)

So in early 2014, Oklahoma substituted midazolam hydrochloride (midazolam) for sodium thiopental and pentobarbital as the first drug in its protocol. (Oklahoma retained pancuronium bromide and potassium chloride as the second and third drugs, respectively.) Midazolam is a sedative in the benzodiazepine family of drugs. Midazolam and other benzodiazepines are prescribed to treat anxiety disorders and insomnia, to reduce anxiety before general anesthesia, and for conscious sedation in minor outpatient procedures. Unlike barbiturates, midazolam does not reliably produce a deep, coma-like state that would render a person insensate to severe pain; and it is not used as the sole drug to maintain general anesthesia during a painful procedure. (There is some dispute on this point. The state’s expert testified at trial that 500 milligrams would induce and maintain coma-like unconsciousness between its administration and death. The petitioners, however, take issue with the expert’s methodology, as described more below.) Indeed, studies show that although midazolam can cause unconsciousness, a person on midazolam can be “jolted into consciousness” by the infliction of pain. (Midazolam itself does not reduce or relieve pain.) Moreover, midazolam has a “ceiling effect.” This means that beyond a certain dosage, an additional increase in dosage does not produce a corresponding increase in effect.

Oklahoma first used midazolam on April 29, 2014, in its execution of Clayton Lockett. The state administered 100 milligrams of midazolam, and Lockett was declared unconscious seven minutes later. But during the administration of the second and third drugs, Lockett awoke. He writhed in the gurney, bucked his head, and said, “This shit is fucking with my mind,” “Something is wrong,” and “The drugs aren’t working.” Lockett died 24 minutes later. While a subsequent investigation found that a catheter failure caused the drugs to infiltrate Lockett’s tissue instead of directly entering his bloodstream (as they should have), this would not have significantly impacted midazolam’s effectiveness, because it has a rapid absorption rate even when not administered intravenously.

Lockett’s experience was not unique. Ohio and Arizona both used a mixture of midazolam and hydromorphone in executions with similar results. In January 2014, Ohio used 10 milligrams of midazolam and 40 milligrams of hyodromorphone to execute Dennis McGuire. McGuire gasped for nearly ten minutes before his death. In July 2014, Arizona used more of each drug, 750 milligrams of each, to execute Joseph Wood. Wood gasped for nearly two hours before dying.

After its investigation into Lockett’s execution, Oklahoma adopted a new execution protocol, effective September 30, 2014. The new protocol gives the Director of Oklahoma’s Department of Corrections sole discretion to select among four alternative drugs or drug combinations to be used in lethal injection executions. The first alternative calls for the administration of 5,000 milligrams of pentobarbital in a one-drug procedure. The second alternative provides for the administration of 5,000 milligrams of sodium pentothal in a one-drug procedure. The third alternative calls for the administration of 500 milligrams of midazolam and 500 milligrams of hydromorphone. The fourth alternative calls for the administration of 500 milligrams of midazolam, 100 milligrams of vecoronium bromide, and 240 milliequivalents of potassium chloride. The new protocol requires the Director to inform the condemned of his or her decision in writing ten calendar days before the scheduled execution.

Richard Glossip and other death-row prisoners, including Charles Warner, sued Oklahoma and moved for a preliminary injunction to stop the state from carrying out executions in an unconstitutional manner, including through the use of midazolam in a three-drug protocol. The district court denied relief. The United States Court of Appeals for the Tenth Circuit affirmed.

On January 13, 2015, petitioners filed a petition for writ of certiorari to the Supreme Court along with an application to stay their scheduled executions. On January 15, 2015, the Court denied the stay application. Justice Sotomayor, joined by Justices Ginsburg, Breyer, and Kagan, dissented.

That same evening, Oklahoma used its fourth alternative drug combination, which includes midazolam as the first of three drugs, to execute Charles Warner. (This combination is the same combination that the state used to execute Lockett, but with a much higher dose of midazolam.) After Warner was injected with midazolam, but before he was sedated past the point of speech, his last words were reported as “my body is on fire.”

A week later, on January 23, 2015, the Court agreed to hear the appeal. The state then applied for a stay of execution for the remaining three petitioners, asking the Court to stay the executions “until final disposition in Oklahoma’s favor . . . or, alternatively, until [the state] has in its possession a viable alternative to midazolam for use in its executions.” The Court granted the stay on January 28, 2015, ordering that the state’s “executions using midazolam are stayed pending final disposition of this case.”


The Supreme Court upheld a three-drug protocol like Oklahoma’s old protocol, including sodium thiopental as the first drug, seven years ago in Baze v. Rees, 553 U.S 35 (2008). In that case, the challengers conceded that an execution under the protocol would be humane and constitutional if performed correctly. But they argued that there was a significant risk that the procedures would not be performed correctly. In particular, they claimed that the sodium thiopental would not be properly administered to achieve its intended effect, thus resulting in severe pain upon the administration of the second and third drugs. The challengers argued that a different protocol—a one-drug protocol using a single dose of sodium thiopental or another barbiturate—would solve this problem.

The Court rejected this argument. A plurality of the Court ruled that the challengers failed to show that the three-drug protocol would create a “substantial risk of serious harm,” an “objectively intolerable risk of harm” that would prevent prison officials from pleading that they were “subjectively blameless for purposes of the Eighth Amendment.” The plurality also held that the challengers failed to show that their proposed alternative effectively addressed a “substantial risk of serious harm.” The plurality wrote,

To qualify, the alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. If a State refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a State’s refusal to change its method can be viewed as “cruel and unusual” under the Eighth Amendment.

The Court in Baze thus articulated the standard for an Eighth Amendment violation. It also set a standard for when a condemned prisoner challenges the administration of a protocol and suggests an alternative.

But this case is different than Baze for two reasons. First, the first drug in Oklahoma’s protocol is midazolam, a sedative, and not sodium thiopental or another barbiturate. As a result, this case raises a new question: whether a lethal injection protocol that includes midazolam as the first drug violates the Eighth Amendment. Next, Glossip and the other challengers (together, Glossip) do not merely take on the administration of the protocol; they challenge the protocol itself. In particular, Glossip does not concede (as the Baze challengers did) that the protocol, if properly administered, is constitutional. Instead, Glossip challenges the protocol itself (even if properly administered). Given these differences, this case asks whether and how the courts should apply the Baze standards to challenges that are meaningfully different than those in Baze itself.

Glossip argues first that Oklahoma’s use of midazolam violates the Eighth Amendment because it creates a “substantial risk of serious harm” or an “objectively intolerable risk of harm” in violation of Baze. Glossip says that unlike properly administered sodium thiopental, midazolam does not reliably induce a deep, coma-like unconsciousness that would render a person insensate to pain, and that, indeed, clinical studies show that when midazolam was used in surgery, patients felt pain. Moreover, he claims that there is no substantial practice among the states of using midazolam for lethal injections (again, in contrast to the widespread use of sodium thiopental, at least when it was available). Glossip says that only four states have used midazolam in an execution, and only two have used it as anesthesia.

Glossip contends that the lower court’s decision to credit the state’s expert that a 500-milligram dose of midazolam would induce a deep unconsciousness was clear error. Glossip claims that the expert supported his opinion with only undisclosed or unreliable sources and mathematical error, and that the expert’s supposition about how the drug works “has no acceptance in the scientific community.” Instead, Glossip says that midazolam’s properties, including its ceiling effect, mean that it cannot reliably induce a deep, coma-like unconsciousness.

On the second issue, Glossip argues that the Tenth Circuit erred in setting a higher standard for a stay of execution than the one set by the plurality’s decision in Baze. Glossip says that the traditional standard for obtaining a stay requires, among other things, “a significant possibility of success on the merits.” Hill v. McDonough, 547 U.S. 573 (2006). He says that the Baze plurality did not modify or overrule that standard. Yet he claims that the Tenth Circuit and other courts have construed Baze to set a new and higher standard, one that all but forecloses a stay. He contends that this is wrong. Glossip claims that, if anything, a higher standard should apply only to cases like Baze, where a death-row prisoner challenges a concededly valid method of execution but seeks to show a step that “the State could take as a failsafe for other, independently adequate measures.” But where, as here, a person lodges a claim that the state’s method itself violates the Eighth Amendment, Glossip contends that the traditional stay standard should apply.

Finally, on the third issue, Glossip argues that the Tenth Circuit also erred in requiring the petitioners to propose a commercially available alternative drug for their executions. Glossip claims that the Eighth Amendment prohibits certain punishments, independent of whether market forces prevent a state from adopting its preferred alternative. Glossip says that Hill supports this principle, and Baze did not overrule it. Glossip writes, “The vitality of a core constitutional guarantee does not vary with the marketing decisions or supply constraints of private corporations.”

Oklahoma argues first that the Court should dismiss the appeal as improvidently granted. The state says that Glossip is challenging the lower courts’ fact-finding, and that the fact-finding at issue was not even necessary to the courts’ judgments. Oklahoma claims that this kind of fact-based dispute is ill-suited to Supreme Court review.

Oklahoma argues next that its use of midazolam does not create a “substantial risk of serious harm.” The state says, contrary to Glossip’s assertion, a 500-milligram dose of midazolam can induce a deep, coma-like unconsciousness. Indeed, the state claims that the record evidence indicates that a large dose of midazolam produces unconsciousness sufficiently deep to render a person insensate “to even extremely painful stimuli.” Oklahoma says that midazolam’s lack of analgesic properties is irrelevant, because it induces deep unconsciousness. It claims that the risk of paradoxical reactions is extremely low. And it contends that any ceiling effect has not been sufficiently established. Oklahoma also claims that its other “robust procedural safeguards” “will eliminate” the risk of severe pain.

Oklahoma argues that the district court did not err in admitting the opinions of its expert. The state says that Glossip’s challenges to the expert’s methodology lack merit and that the district court properly relied on the expert’s testimony. Oklahoma claims that the Tenth Circuit gave Glossip “every benefit of the doubt” and still ruled that none of Glossip’s challenges undermined the scientific reliability of the state’s evidence at trial.

Oklahoma argues on the second issue that the Tenth Circuit properly applied the standard that Glossip seeks here. Oklahoma says that the Tenth Circuit explicitly applied the proper standard for a preliminary injunction, and that the Supreme Court cannot assume that the Tenth Circuit applied a higher standard without saying so. Moreover, the state claims that the district court ruled that Glossip failed to meet the burden under an even more relaxed standard. And Oklahoma contends that in any event the Baze standard should apply to Glossip’s claim. The state says that the Baze plurality was clear when it wrote, “A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain * * * [that] is substantial when compared to the known and available alternatives.”

Finally, on the third issue, Oklahoma argues that Glossip did not show that an alternative execution method is available that will substantially lower the risk of severe pain, which Oklahoma says is the Tenth Circuit’s alternative (not principal) holding. The state says that the Baze plurality’s requirement that a challenger identify an alternative was a “broadly applicable standard” designed to provide adequate guidance in method-of-execution cases. Oklahoma claims that all courts of appeals so far have applied Baze this (broader) way. The state says that this makes sense: Because the death penalty itself is constitutional (even if some pain results), any challenge to a method of execution that fails to identify a feasible alternative method that would result in substantially less pain amounts to a challenge to the death penalty itself. And this, the state claims, is already foreclosed by the Constitution.


Thirty-two states plus the federal government currently have a death penalty. All of these jurisdictions use lethal injection as the primary method of execution, but many have a back-up (electrocution, gas chamber, and even hanging and firing squad) in case lethal injection drugs become unavailable. (Check out for more information on state-by-state approaches to the death penalty.)

States started using lethal injection in the 1980s as a more humane method of execution, theoretically free of unnecessary pain, in reaction to the risks associated with other methods of execution. When states first adopted lethal injection, the vast majority left their statutes purposefully vague on the procedure and delegated the development of a protocol to prison officials. Historically, most states and the federal government used a three-drug protocol like Oklahoma’s earlier protocol, which included sodium thiopental or another barbiturate as the first drug. (For an excellent and critical history, check out the amicus curiae brief filed by The Louis Stein Center for Law and Ethics at Fordham University School of Law. Amicus argues, like Glossip, that states developed and modified their drug protocols not with the kind of medical or scientific rigor that we might expect, but in reaction to court decisions and out of expedience.)

But in the 7 years since Baze came down, states have moved away from the original three-drug protocol. This is at least in part because states’ sources for sodium thiopental and alternative barbiturates for use in executions have largely dried up, as international drug suppliers have refused to sell drugs for use in executions. As a result, some states have turned to compounding pharmacies to obtain lethal drugs, others have altered their protocols, and yet others have authorized alternative methods of execution when lethal drugs are not available. (For example, Utah’s governor signed a bill on March 23, 2015, allowing the use of firing squads in executions if the state is unable to obtain lethal injection drugs.)

Against this backdrop, Glossip is important because it will give states additional guidance on when a particular drug protocol violates the Eighth Amendment, and what challengers must show to prove it.

If Baze is any indication (and, indeed, if the complicated route to the Court in Glossip is any indication), the Court is deeply divided on how to evaluate these claims. While the Court upheld the protocol in Baze by a 7-2 vote, the case produced seven different opinions. Since Baze came down, Justice Sotomayor replaced Justice Souter (who dissented in Baze), and Justice Kagan replaced Justice Stevens (who wrote a separate concurrence arguing that the death penalty is unconstitutional but ultimately deferring to precedents). While these changes may not alter the head-count in this case, they may add yet another dimension to the reasoning.

Just to be clear: This case does not test the constitutionality of the death penalty itself, but instead tests the constitutionality of a particular drug protocol in administering the death penalty. It also tests the standards by which courts should evaluate challenges to a particular method of execution.

But as states continue to have problems obtaining sodium thiopental and similar barbiturates, and as they therefore increasingly look to alternative drug protocols and other methods of execution, these standards will become increasingly important in death penalty challenges. In this way, even though Glossip does not test the death penalty itself, the Court’s ruling will, as a practical matter, put a heavy thumb on the scale either for or against the death penalty.

April 28, 2015 in Cases and Case Materials, Fundamental Rights, News, Oral Argument Analysis | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 22, 2015

Court Hears Oral Arguments in Round Two of Raisin Takings Case

The issue of a federal regulatory scheme of raisins returned to the United States Supreme Court for another round of oral arguments today in Horne v. Department of Agriculture.

Recall that in a brief opinion in June 2013, the Court reversed the Ninth Circuit and held that the Hornes did state a claim for regulatory taking.  The claim arises from a regulatory program under the authority of the Agricultural Marketing Agreement Act (AMAA) of 1937, as amended, 7 U.S.C. § 601 et seq., that mandates that a certain percentage of a raisins be put in "reserve" each year.  By resisting the program, the Hornes have become "outlaws" or heroes of sorts.

Sun-Maid_LogoWhile the Hornes continue to argue that the program constitutes a taking, in today's oral argument Michael McConnell representing the Hornes pressed the issue of the taking as a per se one rather than a regulatory one because the Department of Agriculture takes possession and title of the raisins. 

The Deputy Solicitor General, Edwin Kneedler, rejected the Chief Justice's humorous suggestion that government would "come up with the truck and you get the shovels and you take their raisins, probably in the dark of night," by insisting that under the Order, the producer submits the raisins to the handler who divides them into two categories. The reserve raisins are separated for later sale, the proceeds of which are pooled and distributed back to the producers. However, Kneedler did admit that one can assume that the government committee takes title in order to sell the raisins.

There were also questions of even if there was a taking whether any "just compensation" was due.  In other words, what if the government taking resulted in no loss - - - or even a benefit - - - to the Hornes?

But the Justices seemed bothered by the program, with Justice Scalia expressing this discomfort most blatantly: "Central planning was thought to work very well in 1937, and Russia tried it for a long time."  Perhaps the program - - - and the 8 or 10 or maybe more programs that are similar - - - is simply a relic of another time. 

However, as Justice Kagan made clear, whether the program was sensible or ridiculous was not for the Court to decide and, she implied, irrelevant to the taking analysis. 


April 22, 2015 in Food and Drink, Oral Argument Analysis, Supreme Court (US), Takings Clause | Permalink | Comments (1) | TrackBack (0)

Monday, March 23, 2015

Court Hears Oral Arguments in Texas Sons of Confederate Veterans About Specialty License Plate

The Court heard oral arguments today in Walker v. Texas Sons of Confederate Veterans involving a First Amendment challenge to the denial of a specialty license plate requested by the Texas Sons of Confederate Veterans.

As we noted when certiorari was granted, the Fifth Circuit's divided opinion, reversing the district judge, found that the denial violated the First Amendment as impermissible viewpoint and content discrimination.  License plate schemes have been well-litigated: The Fourth Circuit recently held that North Carolina's provision of a "Choose Life" specialty license plate violated the First Amendment; the New Hampshire Supreme Court invalidated a vanity license plate regulation requiring "good taste"; a Michigan federal district judge similarly invalidated a refusal of specific letters on a vanity plate; and on remand from the Tenth Circuit, the design of the Oklahoma standard license plate was upheld.

622x350The doctrinal problems involving the Sons of Confederate Veterans proposed specialty plate, bearing the Confederate flag and rejected by Texas, surfaced during the oral arguments.

First, there is the issue of whether the specialty license plate had become a traditional public forum.  Justice Kennedy seemingly tended toward this view, noting - - - twice - - - that no one goes to parks anymore and so these license plates may be a new public forum for a new era. 

Less specifically articulated was whether if there was a limited public forum in the license plates this could have any meaning at all because there were no real standards.  Justice Ginsburg quickly asked the Texas Solicitor General, defending the constitutionality of the state scheme, whether it wasn't "nebulous."  The number of specialty license plates approved and the very few disapproved was noted several times, again making it seem as if any designation was not at all clear.

The notion of government speech was raised at numerous points, echoing the opinion of Fifth Circuit Judge Jerry Smith who had dissented and  contended that the doctrine of government speech articulated in the Court's unanimous Pleasant Grove City v. Summum (2009) controls: there is no meaningful distinction between the privately placed monuments in Summum and the license plates in Texas.

Yet Justice Sotomayor suggested that this might be "hybrid speech," asking counsel for the Texas Sons of Confederate Veterans whether this might not be the "reverse" of Wooley v. Maynard (1977): why should the State be compelled to put something on its license plates that it disapproves?

That the state might be seen as endorsing problematical messages surfaced repeatedly, including this discussion with counsel for the Texas Sons of Confederate Veterans:

JUSTICE GINSBURG: Suppose ­­ suppose the message ­­ the ­­ the applicant said, we want this design, and the design is a swastika. Is that speech that ­­ does ­­ does the ­­ the ­­ whoever is in charge of it ­­ of the license plate, do they have to accept ­­- - -
MR. GEORGE: I don't believe the State can discriminate against the people who want to have that design ­­- - -

JUSTICE GINSBURG: So they could have the swastika.  And suppose somebody else says, I want to have "Jihad" on my license plate.  That's okay, too?

MR. GEORGE: Vegan?


MR. GEORGE: Jihad. Jihad on the license plate? Can be ­­ there is obviously a court of appeal ­­ a district court from Ohio in which "Infidels" was held to be ­­ the State ­­


JUSTICE KENNEDY: What is your answer in this case as to Justice Ginsburg's hypothetical?  Yes or no, must the State put those symbols or messages on the plates at the request of the citizen?  Yes or no?


This prospect seemed worrisome.  But seemingly equally worrisome was the prospect of absolute government discretion manifested by the recurring hypothetical of a government allowing "Vote Republican" but not "Vote Democratic" on the specialty plates, a situation that is arguably consistent with Summum's interpretation of government speech.  Perhaps Sotomayor's suggested "hybrid speech" may be a compromise.  Or less likely, the Court could further clarify public forum and limited (designated) public forum doctrine.


March 23, 2015 in Federalism, First Amendment, Oral Argument Analysis, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 4, 2015

Obamacare Subsidies May Turn on Federalism, Constitutional Avoidance

The Supreme Court heard oral arguments today in King v. Burwell, the case testing whether IRS tax subsidies to health-insurance purchasers on a federally-facilitated exchange violate the ACA. We posted our oral argument preview here.

There were no huge surprises, and questions from the bench mostly aligned with conventional beliefs about the Justices' politics (with Chief Justice Roberts, in his near silence, declining to tilt his hand at all).

But questions from Justice Kennedy--one to watch here (along with Chief Justice Roberts)--suggested that federalism principles and constitutional avoidance may drive the case. (That assumes that Justice Kennedy controls the center in the case.) This could be an elegant way for a conservative Justice to uphold the subsidies, because it's rooted in the challengers' argument itself (and not the government's case). In other words, a conservative Justice could accept the challengers' premise, but still uphold the subsidies.

Justice Kennedy at several points raised federalism concerns about the challengers' case: If the challengers are right that Congress designed the ACA so that all states would establish their own exchange (on threat of the death spiral that would result if they defaulted to a federally-facilitated exchange, without tax subsidies), then isn't that coercion in violation of federalism principles? And if that's so, shouldn't the Court reject the challengers' reading for constitutional avoidance reasons? Here he puts the question to Michael Carvin, arguing for the ACA challengers:

Let me say that from the standpoint of the dynamics of Federalism, it does seem to me that there is something very powerful to the point that if your argument is accepted, the States are being told either create your own Exchange, or we'll send your insurance market into a death spiral. We'll have people pay mandated taxes which will not get any credit on -- on the subsidies. The cost of insurance will be sky-high, but this is not coercion. It seems to me that under your argument, perhaps you will prevail in the plain words of the statute, there's a serious constitutional problem if we adopt your argument.

Later, he made a similar point with General Verrilli: "Because it does seem to me that if Petitioners' argument is correct, this is just not a rational choice for the States to make and that they're being coerced. And that you then have to invoke the standard of constitutional avoidance."

But in terms of constitutional avoidance, Justice Kennedy qualified his earlier statement to Carvin: "It may well be that you're correct as to these words, and there's nothing we can do. I understand that." Justice Kennedy also later seemed concerned with the government's Chevron argument, pointing out that a statute that costs billions of dollars in tax subsidies has to be absolutely clear.

Carvin argued that the ACA didn't create coercion for the states to establish their own exchanges. But he may have painted himself into a corner with the argument, because his argument also assumes that Congress thought all 50 states would establish an exchange, and, as Justices Ginsburg, Sotomayor, and Kagan pointed out, the portion of the ACA establishing a federally-facilitated exchange would be superfluous if all 50 states set up their own exchanges. They also pointed out that he had a different position in the last ACA challenge. Chief Justice Roberts rescued him, though, reminding everyone that he lost.

Most of the rest of the argument involved predictable statutory construction arguments, with no clear winner or loser. Maybe the only surprise was Justice Scalia's cramped reading of the four words, seemingly at odds with his approach (stated at oral argument earlier just this Term) to consider the context and entire statutory scheme when interpreting any individual provision.

Justice Ginsburg noted that standing is an issue, and that the Court can address it itself. Some of the other Justices fished a little around the question with General Verrilli. But in the end, General Verrilli didn't press the point and instead assumed that "because Mr. Carvin has not said anything about the absence of a tax penalty," that at least two plaintiffs still have standing.

March 4, 2015 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Oral Argument Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Monday, March 2, 2015

Can a State Use an Independent Redistricting Commission?

The Supreme Court heard oral arguments today in Arizona State Legislature v. Arizona Independent Redistricting Commission, the case testing whether Arizona can use an independent commission (established by voter initiative, not by the legislature) to redraw congressional districts in light of the Election Clause's language that says that "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof . . . ."

At its core, the arguments turn on just how pliable the term "the Legislature" is: Does it mean only the state legislature (as the legislature would have it); or does it also mean the lawmaking power of the state (as the commission would have it)?

The Court and attorneys predictably turned to text and history. The precedent, such as it is, wasn't much help.

Paul Clement, for the legislature, argued that the commission completely cuts the legislature out, by "permanently wresting that authority." It'd be a harder case, he conceded, if there were some role for the legislature. That prompted questions by Justices Kennedy and Kagan about voter-referendum-approved efforts like voter ID, or judge-drawn districts in the context of litigation: Don't those cut the legislature out completely? Clement argued that those initiatives actually delegate authority to the state legislature, not away from it. As to judge-drawn districts (a question from Justice Kennedy), Clement said that the Constitution requires the plan to go to the legislature. They also turned to line-drawing: If "the Legislature" means only the legislature, how can the legislature allow for so many exceptions (that is, how can the legislature allow any role for any other body, like a gubernatorial veto)? And doesn't the legislature still have a role under the commission system? Can't it initiate a referendum? Clement said no to this last point (although he conceded that the legislature could initiate a voter initiate, like anyone else). Still, there was some concern about where and how to draw lines.

The government, as amicus, argued that the legislature lacked standing. But this didn't gain any traction with the Court, and basically fizzled out.

Justices Scalia and Alito hit Seth Waxman, for the commission, with a series of questions about what "the legislature" means in other parts of the Constitution. Justice Kennedy jumped in with the history of state legislative appointments to the Senate, and the overriding Seventeenth Amendment. (It took the Seventeenth Amendment to take state legislatures out of Senate appointments. Why take state legislatures out of congressional line-drawing (without an amendment) here?) Waxman responded that the Court's interpretations favored the commission; but that response didn't seem to satisfy. (Again, the precedent didn't seem to persuade anyone much either way.) When Waxman turned to dictionaries to help him out, Justice Scalia (of all the Justices) pounced: "You've plucked that out of a couple of dictionaries!" Maybe this wasn't so surprising, though: Justice Scalia seemed to believe that he could decide the case on the text alone, and the idea that no other constitutional reference to "the legislature" means anything other than the legislature. Chief Justice Roberts added force when he wondered why Waxman's interpretation didn't make "the Legislature" superfluous. Waxman fell back on an argument that the Framers understood that the same word could mean different things in different contexts, but this point fell flat.

Clement at one point said that the legislature's position wouldn't foreclose the use of an independent commission to draw state legislative boundaries, and that in this way the people (and their commission) could influence the direction of the state legislature and thus influence the state legislature's congressional district map. He also said that it'd be a harder case if the commission didn't completely divest the legislature of all power in the map-drawing process.

If the people of Arizona are looking for a way to influence congressional district maps after this case, these may be all that's left.

March 2, 2015 in Cases and Case Materials, Elections and Voting, Federalism, News, Oral Argument Analysis | Permalink | Comments (1) | TrackBack (0)

Wednesday, January 21, 2015

Line Drawing and Dog Sniffing

The Supreme Court heard oral arguments today in Rodriguez v. United States, the case testing whether an officer can prolong a traffic stop to conduct a dog sniff, even if the officer lacks suspicion for the sniff.

After arguments--and maybe even before--it's clear that the problem is line drawing. On balance, that maybe more of a problem for the government than for Rodriguez.

Rodriguez, represented by Shannon O'Connor, argued for a bright line rule: when the purpose of the stop is over, any after-occuring dog sniff requires new individualized suspicion or probable cause, even if the Court has held that an officer may conduct a dog sniff during the stop. The government, on the other hand, represented by Ginger Anders, argued for a de minimis extension--that the Fourth Amendment permits a reasonable de minimis extension of a traffic stop to conduct a dog sniff.

But when is the purpose of a stop over? And how to define a de minimis extension? Those problems dominated the arguments today.

O'Connor had trouble defending her bright-line rule, and even seemed to shift once or twice. She argued that an officer cannot detain a driver beyond the point when the purpose of the stop ends, even if it ends in a mere warning. But O'Connor received significant push-back from Justices Kennedy, Scalia, and Alito, all of whom presented hypotheticals designed to show that that bright line wasn't always so bright. Moreover, it wasn't clear that O'Connor's bright line really mattered. For example, Justice Scalia pointed out that an officer can investigate all kinds of things during a traffic stop--whether a driver's license is valid, whether the car is stolen, etc., even a dog sniff--and wondered why then the officer couldn't also conduct a dog sniff after the purpose of the stop ended.

Justice Kennedy seemed to push O'Connor toward an even sharper bright line, that the purpose of the traffic stop ends at the issuing of a ticket. O'Connor at one time seemed to adopt it, but that only got her in more trouble. That's because the issuing-a-ticket position has obvious problems: traffic stops don't always end with tickets, or, as Justice Alito pointed out, any clever officer would simply delay handing over the ticket until after a dog sniff. Justice Scalia pounced, Chief Justice Roberts weighed in ("What if the officer says I need to think about this for a while?"), and even Justice Ginsburg expressed reservations with the issuing-a-ticket line.

So O'Connor backed off and reverted to her earlier position that the stop ends when the purpose of the stop ends. But that position fared no better. 

But if the Court had problems with O'Connor's lines, it had maybe even more problems with the government's lines. The government argued that the Fourth Amendment permits a de minimis extension beyond the purpose of the stop. But defining "de minimis" proved difficult. It wasn't clear whether this position had the support of even Chief Justice Roberts and Justice Scalia (although it may have had the support of Justice Alito). Chief Justice Roberts pointed out that a dog sniff will probably last longer than the stop itself--is that a de minimis extension? Justice Breyer pointed out that Anders's de minimis rule isn't easily enforceable--what do you tell the police to do? Justice Kagan argued that a dog sniff outside the bounds of the stop is something like an officer taking a cigarette break--unreasonable.

Part of the problem for the government is how the case came to the Court: the lower court said that a de minimis extension was reasonable. That holding assumes that there's a point at which the purpose of the stop ends, and a de minimis extension afterward. If so, and if the courts can define that point, then any extension really is beyond the purpose of the stop. And a Fourth Amendment violation for a de minimis period is still a Fourth Amendment violation. (And what's de minimis, anyway? That's hard to say, and, for dog sniffs, may run longer than the stop itself--as Chief Justice Roberts pointed out.) This problem seemed to trouble enough Justices, including Chief Justice Roberts, that the Court may well go with Rodriguez.

January 21, 2015 in Cases and Case Materials, Fourth Amendment, News, Oral Argument Analysis | Permalink | Comments (2) | TrackBack (0)

Tuesday, January 13, 2015

Does the Natural Gas Act Preempt State Antitrust Claims?

The Supreme Court heard oral arguments yesterday in Oneok v. Learjet, the case testing whether the federal Natural Gas Act preempts state antitrust claims arising from a conspiracy among natural gas companies to inflate retail natural gas prices.

The dispute arose when natural gas companies reported false natural gas sales prices to industry publications used to set gas prices in retail and wholesale contracts, artificially inflating those prices, and resulting in the Energy Crisis in 2000 to 2002. Retail gas purchasers brought state antitrust cases in several states. The gas companies moved to dismiss, arguing that the Natural Gas Act preempted those claims.

Indeed, the Gas Act grants FERC authority to regulate wholesale sales of natural gas (called "jurisdictional" sales) and any practice that "directly affect[s] jurisdictional rates." So the question in the case is this: Does that authority reach, and preempt state-law claims based upon, the gas companies' false reporting of gas prices to industry publications, thus affecting retail and wholesale gas prices?

The arguments didn't reveal any significant new points (that weren't briefed), and revealed only a little about the Court's likely direction in the case.

The parties agreed that the Gas Act field-preempts state-law claims for some field, but the predictably disagreed about the scope of that field. Oneok, represented by Neal Katyal, argued that the field includes practices like false reporting of gas prices that affect retail sales, because the false reporting also affected wholesale sales (or jurisdictional sales, within FERC's bailiwick). Learjet, represented by Jeffrey Fisher, argued that the Act doesn't sweep that far, and that FERC's authority does not field-preempt the state-law claims here.

Oneok also argued that the Gas Act could conflict-preempt state-law claims (an issue, it said, that would have to be decided on remand), because state-law claims could conflict with the Act and the nationwide uniformity in reporting that FERC encourages. Learjet said that the state-law antitrust claims were congruent with a federal antitrust claim (that everyone says was available to Learjet and the other plaintiffs), so there's no conflict between the state-law claims and federal law.

Questions from the bench revealed little. The progressives on the bench were by far the most active, pressing Katyal the hardest (and seemingly least persuaded by his points), but also probing Fisher (especially Justice Breyer). Conservatives were largely silent, except that Justice Scalia seemed inclined to accept Katyal's point about how price reporting affects wholesale rates (and therefore preempts state-law claims as to retail rates), and Chief Justice Roberts seemed skeptical of Fisher's argument that a ruling for the gas companies would allow them to manipulate and transform any non-jurisdictional practice into one that "directly affect[s] jurisdictional rates."

Justice Kennedy seemed to straddle, and maybe hinted at a result. He asked Katyal whether the Gas Act would preempt a state-law claim that was "exactly the same as the Sherman Act." Katyal responded:

And I think that is complementary authority, which, Justice Kennedy, your opinion in Arizona v. United States decried. Once we're in the field, once Congress has said to a federal agency, as it is here, FERC is regulating the very practice that they are seeking to regulate three different ways, then you can't tolerate states in the area. Why? Because states will have all sort --

Justice Kennedy then asked if Katyal had a back-up conflict-preemption argument, in case his field-preemption point didn't pan out. Katyal: Yes, but for remand.

The outcome will obviously be important to the parties and anyone else worried about accountability for the Energy Crisis in 2000-2002, but probably won't be too important to anyone else. That's because Congress increased FERC's authority in 2005--prompting the government to argue against cert. in the first place.

January 13, 2015 in Cases and Case Materials, Congressional Authority, Federalism, News, Oral Argument Analysis, Preemption | Permalink | Comments (0) | TrackBack (0)

Monday, January 12, 2015

Supreme Court Hears Oral Arguments Challenging Town's Sign Ordinance

The Court heard oral arguments today in Reed v. Town of Gilbert regarding a First Amendment challenge to the town's extensive regulation regarding signage.  The town generally requires a permit to erect a sign, with nineteen different exemptions including “Temporary Directional Signs Relating to Qualifying Event.”  The exemption for these temporary directional signs further specifies that such signs "shall be no greater than 6 feet in height and 6 square feet in area,”and “shall only be displayed up to 12 hours before, during and 1 hour after the qualifying event ends.”

Although the challenge involves a church sign, this was largely irrelevant. Instead the content at issue is the sign’s directional nature, if indeed "directions" is a matter of content. In a divided opinion the Ninth Circuit upheld the town regulation as content neutral.  Today's oral argument seemed inclined toward a contrary opinion.

In part, the problem seemed to be the city's protection of political speech over other types of speech. As Justice Scalia asked "is there no First Amendment right to give somebody directions?" This question seemed to undercut the categorical approach, for as Justice Kagan asked earlier in the argument to counsel for Reed,

 Can I ask about the category for political signs, which is the most favorable? Because all the time this Court says that political speech is the most valued kind of speech. It's at the heart of the First Amendment. It gets special First Amendment protection. So in a way, why aren't ­­ isn't ­­ isn't the locality here basically adopting the same kind of category ­based understanding of political speech and its special rule and First Amendment analysis  that this Court has very frequently articulated?

Importantly, the directional content is relevant only for temporary signs. This of course raises the question of what is a temporary sign and how can one discern that without looking at the sign’s content.  At one point Chief Justice Roberts suggested that the distinction might be whether the sign is stuck in the ground with a little stake or whether it's in concrete, but quickly said that doesn't help the city's legitimate concerns.  Yet the city's concerns over aesthetics and safety never seemed adequately connected to regulating directional signs more severely than election signs.  Later, Justice Scalia asked whether there was a difference between the function of a sign and the content of the sign and whether function doesn't depend upon content.

800px-MadisonBirthplacePortConwayVAMuch of the doctrinal discussion was whether the standard of review should be strict scrutiny or intermediate scrutiny. The assistant to the Solicitor General argued that the correct standard with intermediate scrutiny under which the ordinance would be unconstitutional. 


Interestingly Justice Ginsburg sought to distinguish intermediate scrutiny in the context of the First Amendment from the context of equal protection in which "intermediate scrutiny is a pretty tough standard." One can presume she was referencing her own opinion for the Court in United States v. Virginia, the VMI case.

As anticipated the justices posed several hypos. Probably the most trenchant of these was "Happy Birthday, Uncle Fred."  Especially as compared to "Birthplace of James Madison" given that both signs could "be up for the same length of time, same size" as Justice Kennedy stated.

If today's argument is any indication - - - always a risky proposition - - - the regulations are likely to be declared unconstitutional.  It may be that such an application will have what counsel for the town called an "opposite effect" :  it "will limit speech  because towns, cities will enact one size fits all" and governments "would be inclined to ban all signs except those that the First Amendment absolutely allows."  Justice Alito, in reply, essentially shrugged: "You can make that argument in all kinds of contexts. I don't know where it gets you."

January 12, 2015 in Courts and Judging, Equal Protection, First Amendment, Oral Argument Analysis, Speech, Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)

Monday, November 3, 2014

Who Gets to Say Whether Israel Can Go on a Passport?

The Supreme Court heard oral arguments on Monday in Zivotofsky v. Kerry, the case testing whether Congress can require the State Department to list "Israel" as the country of birth for a U.S. citizen born in Jerusalem, upon the request of that citizen. The State Department has long declined to list "Israel" (or "Palestinian Territories" or the like) as the country of birth on such a passport, in order to promote its long-standing position of neutrality with regard to sovereignty over Jerusalem. This case tests which branch gets to decide whether Congress, or the executive branch, gets to decide what goes on the passport.

If arguments are any indication, this'll be a 5-4 opinion, along conventional lines (conservatives for Congress; progressives for the President). In short, conservatives didn't seem to think the Act's place-of-birth designation mattered much to recognition or to foreign affairs (or, as Justice Kennedy suggested, that its impact could be mitigated), and therefore that the Act didn't seriously interfere with any exclusive powers of the presidency. Progressives took the opposite view.

Zivotofsky tried to steer the Court toward his argument that the country-of-birth deisgnation on a passport has nothing to do with official recognition of a foreign sovereign. This position could allow the Court to dodge a thorny separation-of-powers problem entirely, by hanging its hat on the idea that the country-of-birth designation serves only an identification purpose, not a sovereign-recognition purpose. If so, the Court could rule for Zivotofsky by saying that Congress can require anything it wants in the place-of-birth line, because it doesn't interfere with the President's recognition power. (Or, as the government argued, the Court could rule for the government, saying that the congressionally required designation in effect requires the President to issue a diplomatic communication that contradicts the President's own recognition and foreign policy. But this would require at least some consideration of constitutional separation of powers--in particular, whether the President's power of recognition is exclusive.)

This approach seemed to get the attention of the conservatives on the Court. In particular, Justices Kennedy and Scalia in different ways seemed to suggest that the country-of-birth designation didn't recognize sovereignty. (If not, however, Justice Kennedy at one point wondered why Congress would have passed it in the first place.) Justice Kennedy returned several times to the ideal of a State Department disclaimer--that State could just write a statement that the place-of-birth designation didn't reflect the policy of the United States. And Chief Justice Roberts wondered later in the arguments whether the President's objections to the Act and the executive's position in litigation amount to a self-fulfilling prophecy--that is, whether designating "Israel" wasn't really all that big of a deal, until the President made it so. (This exchange, with SG Verilli, came up in a line of questions about why President Bush signed the Act in the first place, even with his constitutional reservations in the signing statement.) All these, and Justice Alito, suggested at different times that the country-of-birth designation wasn't all that important, anyway--a corollary to the country-of-birth-designation-as-mere-identification theory.

But Justice Kagan pushed back against the self-identification theory: she called the Act a "very selective vanity plate law," because it allows a passport holder to determine the designation of country of birth. She also underscored the passport-as-diplomatic-note point by asking whether a hypothetical congressional act would be constitutional if it required the State Department to inform all foreign minister that a new American was born in Israel whenever a new American was born in Jerusalem. (Zivotofsky's answer: Yes. Justice Kagan called this "a little bit shocking.") Justice Sotomayor went a step further and said (several times) that Zivotofsky and Act supporters wanted the government to lie--to say that Israel was the place of birth, even though the government doesn't recognize Israel as sovereign over Jerusalem.

Justice Breyer took an institutional competence view of the case, asking if the foreign affairs experts at the State Department declined to recognize Israeli sovereignty over Jerusalem, who was he to question them?

Justice Kagan took the final shot at the it-doesn't-matter-that-much view at the very end of arguments:

Can I say that this seems a particularly unfortunate week to be making this kind of, "oh, it's no big deal" argument. I mean, history suggests that everything is a big deal with respect to the status of Jerusalem. And right now Jerusalem is a tinderbox because of issues about the status of and access to a particularly holy site there. And so sort of everything matters, doesn't it?

It seems doubtful that she'll persuade her conservative colleagues.


November 3, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Oral Argument Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 7, 2014

Court Tests Fourth Amendment Case

The Supreme Court on Monday heard oral arguments in Heien, the case asking whether the Fourth Amendment permits an officer to make a car stop based on a mistake of law. (Our argument preview is here.) The petitioner put the Fourth Amendment--and only the Fourth Amendment--in front of the Court. But based on questions yesterday, the Court seemed to look for ways to wiggle around that framing--and possibly rule on something more, or less.

The petitioner worked mightily at argument and in briefing to distinguish between the underlying Fourth Amendment right and the remedy (exclusion of the evidence). That's because North Carolina automatically excludes evidence if the search violated the Fourth Amendment (without a good-faith exception)--a rule favorable to the petitioner, assuming a Fourth Amendment violation. (The state also interprets its own state constitutional provision in lock-step with the Fourth Amendment.) So the petitioner argued that if the Supreme Court ruled in his favor on the Fourth Amendment (alone), the Court should remand the case for a state-court ruling on the remedy (exclusion of the evidence, under North Carolina law). This, of course, hinged on the Supreme Court ruling on the Fourth Amendment alone.

The Court seemed skeptical. Led by Justice Scalia, questions pressed the petitioner on why it should separate the rights analysis from the remedy, when usually the two go hand-in-hand. Moreover, it wasn't clear why the petitioner should be able to take advantage of a federal Fourth Amendment ruling plus a state exclusionary rule in order to get the evidence excluded. The petitioner had answers (including the fact that the parties only barely briefed the remedy question), but it was clear that this was a sticking point.

On the other hand, some on the Court wondered whether the Court needed to get to the presented Fourth Amendment issue at all. That's because this was a consensual search (after the officer stopped the car). Justice Ginsburg led this line of questioning, but others joined in. Again, the petitioner had answers (fruit of the poisoning tree--the tree being the initial stop based on a mistake of law), but this, too, may be a sticking point.

In all, there were relatively few questions (and few indications one way or the other) on the presented question, whether the Fourth Amendment permits an officer to make a stop based on a mistake of law.

October 7, 2014 in Cases and Case Materials, Fourth Amendment, News, Oral Argument Analysis | Permalink | Comments (0) | TrackBack (0)

Monday, June 16, 2014

Unanimous Supreme Court Returns Susan B Anthony List v. Driehaus for Decision on Election Law Merits

The Court's unanimous  opinion in Susan B. Anthony List v. Driehaus, a challenge to an Ohio election law prohibiting false statements, reversed the Sixth Circuit's determination that the case was not ripe.  Recall that Driehaus had filed a complaint with the Ohio Elections Commission about an advertisement from Susan B. Anthony List, but the Sixth Circuit held the SB List could not show "an imminent threat of prosecution at the hands of any defendant" and thus could not "show a likelihood of harm to establish that its challenge is ripe for review."  

SBA-20_logoAs we discussed after oral argument, the Justices seemed inclined to find the courts had Article III power to hear the case, although there was some doctrinal fuzziness whether the case should be analyzed as one of "standing" or one of "ripeness."  Footnote 5 of the opinion by Justice Thomas for the Court resolves the question firmly in favor of standing:

The doctrines of standing and ripeness “originate” from the same Article III limitation. DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 335 (2006). As the parties acknowledge, the Article III standing and ripeness issues in this case “boil down to the same question.” Med- Immune, Inc. v. Genentech, Inc., 549 U. S. 118, 128, n. 8 (2007); see Brief for Petitioners 28; Brief for Respondents 22. Consistent with our practice in cases like Virginia v. American Booksellers Assn., Inc., 484 U. S. 383, 392 (1988), and Babbitt v. Farm Workers, 442 U. S. 289, 299, n. 11 (1979), we use the term “standing” in this opinion.

Steve Driehaus via

The Court reiterated the established criteria: (1) an "injury in fact" (2) a sufficient “causal connection between the injury and the conduct complained of,” and (3) a likelihood that the injury “will be redressed by a favorable decision," noting that the hurdle for the organization of Susan B. Anthony List was the "injury in fact" requirement.  To establish "injury in fact," the organization had to demonstrate the threat of future prosecution by the election board was sufficiently "concrete and particularized” and “actual or imminent, not ‘conjectural’ or ‘hypothetical,’” and "certainly impending,” or there is a “‘substantial risk’ that the harm will occur.” 

The shadow of the First Amendment was apparent in the Court's reasoning: "The burdens that [Election] Commission proceedings can impose on electoral speech are of particular concern here." 

The Court's relatively short and unanimous opinion breaks no new ground.  It draws on establishing standing precedent which it applies in a relatively straightforward manner, and then quickly dispatches the "prudential" rationale for rejecting jurisdiction. 

However, it's worth considering as a contrast a case uncited by the Court - - - Los Angeles v. Lyons (1983) - - - in which a deeply divided Court decided that Adolph Lyons did not have standing to challenge the City of Los Angeles police department's sometimes fatal practice of administering a "chokehold" to persons it stopped for traffic violations.  As Justice Marshall wrote in the dissenting opinion (joined by Justices Brennan, Blackmun, and Stevens):

Since no one can show that he will be choked in the future, no one — not even a person who, like Lyons, has almost been choked to death — has standing to challenge the continuation of the policy. The city is free to continue the policy indefinitely as long as it is willing to pay damages for the injuries and deaths that result. I dissent from this unprecedented and unwarranted approach to standing.

Perhaps Susan B. Anthony List demonstrates that Justice Marshall's view has proven to be correct and that Lyons can now be disregarded.  Or perhaps, studies such as this and this are correct that the status of Susan B. Anthony List as an anti-abortion organization and the status of Adolph Lyons as an African-America male confronting law enforcement are just as important as doctrine.

June 16, 2014 in Elections and Voting, First Amendment, Oral Argument Analysis, Race, Recent Cases, Speech, Standing, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 29, 2014

Oral Argument in Lane v. Franks on First Amendment rights of employees

The argument in Lane v. Franks in the Supreme Court sounded like the argument was occurring in the Eleventh Circuit.  But the Eleventh Circuit resolved the case on its nonargument calendar; that's precisely the problem.

Here's my discussion over at SCOTUSBlog.


April 29, 2014 in First Amendment, Oral Argument Analysis, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 22, 2014

Oral Arguments in Susan B. Anthony List v. Driehaus on Campaign Lies

The Court heard oral arguments today in Susan B. Anthony List v. Driehaus, a challenge to an Ohio election law prohibiting false statements.  As we explained when the Court granted certiorari in January, the case centers Article III.  The Sixth Circuit determined that the case was not ripe because although Driehaus had filed a complaint with the Ohio Elections Commission about an advertisement from Susan B. Anthony List because it could not show "an imminent threat of prosecution at the hands of any defendant" and thus could not "show a likelihood of harm to establish that its challenge is ripe for review."  It could also not show its speech was chilled; indeed representatives from the organization stated they would double-down.

580px-Seal_of_the_Ohio_Elections_Commission.svgThis is not to say that the First Amendment was entirely absent from today's arguments.  Arguing for Susan B. Anthony List, an anti-abortion organization,  Michael Carvin referred to the Ohio Election Commission as a "ministry of truth," a characterization later echoed by Justice Scalia.  During Eric Murphy’s argument, on behalf of the State of Ohio, there were references to United States v. Alvarez in which the Court found the “Stolen Valor” statute unconstitutional, with Justice Alito (who first mentioned the case) as well as Justices Scalia and Sotomayor participating in that discussion.

But Article III concerns, the subject of the grant of certiorari, dominated.  But which Article III concerns specifically?  As Justice Ginsburg asked:  "Do you think this is a matter of standing or ripeness?"  Michael Carvin's reply deflects the doctrinal distinctions and seeks to go to the heart of his argument:

In all candor, Justice Ginsburg, I can't figure out the difference between standing and ripeness in this context.  No question that we are being subject to something. I think the question is whether or not the threat is sufficiently immediate.

 Analogies abounded.  Justice Sotomayor asked why the injury in this case wasn't as "speculative" as in Clapper v. Amnesty International USA decided in early 2013 in which the Court denied standing to Amnesty International to challege domestic surveillance under FISA?  On the other hand, the challengers in Holder v. Humanitarian Law Project did have standing, based on a credible threat of prosecution" based upon 150 prior prosecutions.  But, as the Deputy Solicitor General noted in answer to a query from Chief Justice Roberts and quoting from Ohio's brief, under the Ohio statute between 2001 and 2010 there were "a little bit over 500" proceedings based on the state false statements law.

The context of an election was discussed at several junctures.  Another election cycle is approaching and election cycles themselves are short periods of intense action and when they conclude the issues can be moot. 

Despite the references to Younger v. Harris, federalism was more anemic than robust.  The notion that the state supreme court should be given an opportunity to construe the false statement law provoked laughter, with Chief Justice Roberts remark "Well, that will speed things up" as a catalyst. 

If the oral argument is any indication, it seems that the federal courts will have a chance to consider the merits of the First Amendment challenge to the Ohio statute.

April 22, 2014 in Federalism, First Amendment, Oral Argument Analysis, Reproductive Rights, Standing, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 26, 2014

Oral Arguments in Wood v. Moss: The Complaint by the Anti-Bush Protestors

At the heart of this case is a very simple complaint: During a campaign stop by then-President Bush in Portland, Oregon, the Secret Service treated anti-Bush protestors differently from pro-Bush demonstrators, relocating the former while allowing the latter to remain. 

But the complaint raises a host of legal issues that ricocheted through the oral arguments {transcript} in Wood v. Moss at the United States Supreme Court today.

image from later protest in Portland via

The first issue is whether the complaint satisfied Ashcroft v. Iqbal, with Chief Justice Roberts specifically referring to the opinion during the oral argument of Steven Wilker, representing the Respondents, who were the protestors:

In Iqbal, and just quoting here from page 681, the Court goes on to consider the factual allegations in the complaint to determine if they plausibly suggest an entitlement, and they go on to say, but given more likely explanations, they do not plausibly establish this purpose.

Roberts returned to Iqbal, stating that the Government's alternative explanation in its motion to dismiss the complaint "doesn't have to be so compelling.":

It simply has to be more likely, is the quote from Iqbal on 681, and it has to be an obvious alternative explanation. And that's enough, no matter what you've alleged.

There was certainly some concern expressed that without Iqbal, the district judge might have fewer "weapons" available to curb discovery, but there was also not uniform preoccupation with Iqbal, with Justice Breyer posing a hypothetical about discovery and saying "Forget Iqbal for the moment."

Yet another procedural barrier discussed by the Court is the doctrine of qualified immunity, requiring that the constitutional infringement be "clearly established" at the time it occurs in order to hold government agents accountable. The Government's best case in this regard is Reichle v. Howards, which counsel mentioned repeatedly, decided in 2012, which held that Secret Service agents had qualified immunity and rejected the claim of retaliatory arrest for a man at a Dick Cheney shopping mall appearance.

But there seemed to be an "aha" moment for Justice Scalia - - - who had previously accused the attorney for the government, Ian Gershengorn, Deputy Solicitor General, for not sufficiently raising such arguments - - - during Wilker's argument.  Scalia asked " how can it be  clearly established if we have never held that there is a Bivens cause of action for a First Amendment violation? We've never held that, have we? How can you possibly say that the violation here is clearly established."

MR. WILKER: Well, I think it's different to say whether or not there is a remedy for the violation as to whether the violation was clearly established.


MR. WILKER: The violation was clearly established. Whether or not there is a remedy for that violation under Bivens - - -

JUSTICE SCALIA: That's a good point.

MR. WILKER:  - - - is a different question.

JUSTICE SCALIA: That's a good point.

Yet Scalia might not be convinced that there would actually be a First Amendment violation, given his repeated references to the Fourth Amendment in which motivation should not be considered. 

At several points, the oral argument did focus on the question of viewpoint discrimination under the First Amendment, such as in the Deputy Solicitor's exchange with the Justice Ginsburg:

JUSTICE GINSBURG: Mr. Gershengorn, suppose it's originally set up by the police, the motorcade is coming down, each side has equal access. Then the Secret Service comes along and said: Clear the anti­Bush demonstrators. Suppose that, that ­­ those were the facts. Would there be a valid Bivens claim?

MR. GERSHENGORN: Your Honor, the question would depend on whether there was a valid security rationale. I think in the context of a motorcade ­­

JUSTICE GINSBURG: The rationale is it's more likely that the people who are against the President would be harmful to him than the people who are for him.

Roman Praetorian Guard via

Yet whether this case will be decided on the First Amendment issues - - - or more properly, whether the Court will decide that the First Amendment issue can be decided by the lower courts in spite of Iqbal and the qualified immunity doctrine - - - is balanced between two concerns expressed in the oral arguments. 

On the one hand, there is a concern for ability of the Secret Service to make security decisions to protect the President without being subject to second-guessing by possible plaintiffs and the courts themselves. 

On the other hand, there is the concern that there might develop a "Praetorian Guard" - - - as Justice Breyer stated - - - and that the trampling of First Amendment rights on the basis of viewpoint might be accepted.

As one of the cases on this Term's heavy First Amendment docket, its importance may be overshadowed, but it should not be underestimated.

March 26, 2014 in First Amendment, Fourth Amendment, Interpretation, Oral Argument Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 25, 2014

Justice Kennedy and the Hobby Lobby Contraceptive Mandate Oral Arguments: Is it Simply Administrative Law?

The arguments in the consolidated cases of  Hobby Lobby and Conestoga Wood Specialities v. Sebelius displayed Justices sharply divided on the issues as we discussed.  Whether Justice Kennedy will be the deciding vote in the cases is sure to be the subject of much speculation.  What, if anything, might be derived from his expressions at oral argument?  

He began, relatively early in the oral argument, by making space for Paul Clement to elaborate on his "framework" and by posing a question about RFRA:

JUSTICE KENNEDY: You were beginning by giving us a framework for your argument. Do I think of this as a statutory case? Of course, the First Amendment is on the stage at some point here, but I take it you can prevail just on the question of statutory interpretation, and if that is so, are there any statutory rules that work in your favor, that is to say, avoiding a constitutional question or how do we think about this case, primarily as a statutory case?

Justice Kagan thereafter pointed out that RFRA was a "special kind of statute" that "specifically refers back to a "body of constitutional law."

Justice Kennedy also asked about the relative substantial burden of paying any fines: "Let's assume that the cost of providing insurance is roughly equivalent to the $2,000 penalty. How ­­ how is the employer hurt? He can just raise the wages."

Clement eventually answered that “If they take away the health care insurance, they are going to have to increase the wages to make up for that. And they're going to have to pay the $2,000 penalty on top of it, plus they're going to have to violate their ­­ their own interest which is, we actually ­­ we believe it's important to provide our employees with qualified health care.

JUSTICE KENNEDY: Okay, the last is important. But just assume hypothetically that it's a wash, that the employer would be in about the same position if he paid the penalty and the employer ­­ pardon me, an employee went out and got the insurance and that the employee's wages were raised slightly and then it's ­­ and that it's a wash so far as the employer are concerned, other than the employer's religious objection, but just on the financial standpoint. Can we assume that as a hypothetical. Then what would your case be?

MR. CLEMENT: I think my case would be that in that case the government might be able to sort of support itself on the compelling interest. I think there would still be a substantial burden on their exercise. But again, this all turns on issues that the government hasn't put in issue.

Toward the end of Clement's time, Kennedy posed a different type of query:

JUSTICE KENNEDY: Just before your time starts to go too fast, how would you suggest that we think about the position and the rights of the ­­ of the employees? And you can have hypotheticals about the employer makes them ­­ wants to make them wear burkas and so forth. That's not in this case. 

But in ­­ in a way, the employees are in a position where the government, through its healthcare plans, is ­­ is, under your view, is ­­ is allowing the employer to put the employee in a disadvantageous position. The employee may not agree with these religious ­­ religious beliefs of the employer. Does the religious beliefs just trump? Is that the way it works?

In Kennedy's extensive colloquy with Solicitor General Verrilli, the subject veered from compelling governmental interest back to the status of RFRA:

JUSTICE KENNEDY:  Is it your position that part of the compelling interest here is that you have to protect the integrity ­­ the operational integrity of the whole Act?

GENERAL VERRILLI: It is part of our argument, absolutely. And ­­ but it ­­ but there is in addition to that, much more ­­

JUSTICE KENNEDY: Does that mean the constitutionality of the whole Act has to be examined before we accept your view?

GENERAL VERRILLI: Well, I think it has been examined, Your Honor, is my recollection.


GENERAL VERRILLI: But ­­ but with respect to ­­ but with respect to the ­­ there is a particularized interest here in that what we are talking about is a question of whether 14,000 employees and their families get access to this contraceptive coverage.

JUSTICE KENNEDY: You ­­ you have exempted a whole class of corporations and you've done so under your view not because of RFRA.

GENERAL VERRILLI: So let me ­­ let me go to that ­­

JUSTICE KENNEDY: Now, what ­­ what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined? I recognize delegation of powers rules are somewhat more abundant insofar as their enforcement in this Court.

But when we have a First Amendment issue of ­­ of this consequence, shouldn't we indicate that it's for the Congress, not the agency to determine that this corporation gets the exemption on that one, and not even for RFRA purposes, for other purposes.

 Kennedy later continued on the issue of compelling governmental interest:

JUSTICE KENNEDY: I still don't understand how HHS exercised its judgment to grant the exemption to nonreligious corporations if you say it was not compelled by RFRA.

GENERAL VERRILLI: I don't think ­­

JUSTICE KENNEDY: Then it must have been because the health care coverage was not that important.

GENERAL VERRILLI: It didn't grant an exemption to any nonreligious organizations, Justice Kennedy. It granted an exemption to churches, and that was it. . . .

And later, Justice Kennedy, whose opinions on abortion are certainly complex, asked Verrilli what seemed a version of a particular "slippery slope" that had not been extensively considered:

JUSTICE KENNEDY: Under your view, a profit corporation could be forced ­­ in principle, there are some statutes on the books now which would prevent it, but ­­ could be forced in principle to pay for abortions.

GENERAL VERRILLI: No. I think, as you said, the law now ­­ the law now is to the contrary.

JUSTICE KENNEDY: But your reasoning would permit that.

GENERAL VERRILLI: Well, I think that ­­ you know, I don't think that that's ­­ I think it would depend on the law and it would depend on the entity.

 Finally, during Verrilli's argument, Justice Kennedy expressed interest in a hypothetical posetd by Justice Alito about a law requiring humane treatment of animals and therefore prohibiting kosher and halal slaughter.

Justice Kennedy asked no questions during Clement's rebuttal, but Clement gave the last word to Kennedy:

 . . . . If I could have just one second more to say that the agency point that Justice Kennedy has pointed to is tremendously important, because Congress spoke, it spoke in RFRA. Here the agency has decided that it's going to accommodate a subset of the persons protected by RFRA. In a choice between what Congress has provided and what the agency has done, the answer is clear.

Certainly Clement's articulation is simplistic, but it could satisfy Kennedy's initial search for some statutory construction principles that might make the answer to the divisive issues also seem simple.

[image: Justice Kennedy by Donkey Hotey via]

March 25, 2014 in Abortion, Courts and Judging, First Amendment, Oral Argument Analysis, Religion, Reproductive Rights, Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)

Supreme Court Hears Oral Arguments in Hobby Lobby and Conestoga Wood Specialties on RFRA and the "Contraceptive Mandate"

Should corporations (or their owner/shareholders) be able to interpose a religious objection to a federal requirement that employers provide health insurance to employees that includes contraceptive coverage? 

Simplified, that's the question at the heart of the oral arguments today in the consolidated cases of Hobby Lobby v. Sebelius and Conestoga Wood Specialties Corp. v. Sebelius in which the Court granted certiorari in November.  The legal issues are complex (our primer is here and another here), but given the basic conflict, it's no wonder the case has attracted so much attention. Another good overview is Lyle Denniston's preview of the arguments for SCOTUSblog.

Recall that the Tenth Circuit's divided en banc opinion in Hobby Lobby essentially split 5-3 over the issue of whether a for-profit secular corporation has a right to free exercise of religion under the Religious Freedom Restoration Act (RFRA) and the First Amendment's Free Exercise Clause.  The majority essentially concluded there was such a right and that the right was substantially burdened by the requirement of the PPACA that employer insurance plans include contraception coverage for employees.

Recall also that the Third Circuit's divided panel opinion in Conestoga Woods rejected the contention that the corporation could raise a claim under RFRA, either as a corporation possessing free exercise of religion rights or under a "pass through" theory allowing the beliefs of the owners to pass to the corporate form.

Moreover, Hobby Lobby and Conestoga Woods are not the only two opinions on these issues.  A digest of some previous circuit court cases and some discussion of the controversy is here; the divided Seventh Circuit opinion is discussed here; and the ACLU has a helpful running tab on all the cases here. So, the Court's ultimate conclusion will impact a number of cases.

Today's 90 minute oral argument {transcript} in the consolidated cases began with Paul Clement representing the "private parties," Hobby Lobby and Conestoga Wood and then Solicitor General Donald Verrilli  representing the federal government, including Kathleen Sebelius as Secretary of Health and Human Services.  Not surprisingly, the questions to Clement largely came from Justices Kagan, Sotomayor, and Ginsburg, and the questions to Verrilli came from Justices Alito and Scalia, as well as Chief Justice Roberts.   Also not surprisingly, the arguments were peppered with slippery slopes, other analogies, questions of Congressional intent in passing RFRA, RFRA's relationship with First Amendment doctrine, and the relevance of the corporate form. 

The question as to the cost of not complying with the mandate (part of the substantial burden on the corporations under RFRA) was the subject of this rather interesting exchange during Paul Clement's argument:


And so the question is, why is there a substantial burden at all?

MR. CLEMENT: Well, just to be clear, we were talking about the same thing. So the option, the choice, is between paying a $475 million a year penalty and a $26 million a year penalty.  That's what Hobby Lobby faces.  So $2,000 per person - - -  ­­

JUSTICE KAGAN: No, between paying $2,000 per employee per year if Hobby Lobby does not provide ­­- - -

MR. CLEMENT: That's $26 million.

JUSTICE KAGAN: You know, Hobby Lobby is paying something right now for the - - -­­ for the coverage. It's less than what Hobby Lobby is paying for the coverage. There are employers all over the United States that are doing this voluntarily because they think that it's less.

CHIEF JUSTICE ROBERTS: I thought - - -­­ I thought that part of the religious commitment of the owners was to provide health care for its employees.

MR. CLEMENT: That is true, Mr. Chief Justice. It is also true that this ­­- - -

JUSTICE SOTOMAYOR: Well, if they want to do that, they can just pay a greater salary and let the employees go in on the exchange.

MR. CLEMENT: Exactly, which is, by the way, why comparing the $2,000 penalty to the cost of the health care is a false - - - ­­ it's a false comparison.

JUSTICE SOTOMAYOR: It's not called a penalty. It's called a tax. And it's calibrated ­­ - - - and it's calibrated ­­

CHIEF JUSTICE ROBERTS: She's right about that.


 The laughter arises from Chief Justice Roberts' decision in NFIB v. Sebelius that the ACA was constitutional under Congress' power to tax, but it is worth noting that Roberts jumped in to assert the corporation's exercise of religion as including the provision of health insurance.  Justices Ginsburg and Kagan later come back to this point:

JUSTICE GINSBURG: There was a point made earlier, and I think you didn't mean to say this, that provision of health care is not part of their religious belief. Covering their employees for health care, that is not a religious tenet, right?

MR. CLEMENT: No, it actually is.  Again, it hasn't been the principal theory been litigated. But see, if you complaints and you go back to our briefs, you know, it's part of the religious beliefs that both the Hahns and the Greens have. They think it's actually important ­­- - -

JUSTICE KAGAN: But, Mr. Clement, you're not saying, are you, that their religious beliefs mandate them to provide health care? I thought that you were never making that claim.

MR. CLEMENT: I didn't have to make that claim in the course of this litigation. What I'm pointing out, though, is for purposes of the substantial burden analysis, it is perfectly appropriate to take into account that the 2,000 ­­ the $26 million in fines they would pay would not be the only thing that they would lose out if they are on that horn of the dilemma. They would also lose out all the additional wages they would have to pay, and they would be in this position of not offering health care, which is something they believe is important for their religion as well.

JUSTICE KAGAN: You know, I'm sure they seem like very good employers. And I'm sure they want to be good employers. But again, that's a different thing than saying that their religious beliefs mandate them to provide health insurance . . . .

If the "substantial burden" under RFRA is the most difficult element that the corporations to meet, then the strict scrutiny test applicable to any substantial burden is surely the government's most difficult task.  The questioning noted that the "least restrictive means" test in RFRA was clearly more difficult to meet than even the pre-Smith cases that RFRA explicitly sought to restore - - - and there did not seem to be even a glimmer that RFRA should be held unconstitutional (which would, of course, require a departure from O Centro Espirita Beneficiente Uniao Do Vegetal v. Gonzales). 

 Justice Breyer, asking his first question of the argument, requested that Verrilli provide a "precise answer" to the "least restrictive" argument that the government should simply pay for the contraceptive coverage.  Verrilli's argued that this suggestion by the corporations was not properly before the Court, but even if it was, that even the accommodation would be subject to a RFRA challenge.   Justice Alito suggested that Clement be asked about whether this would hapen, and indeed Clement was asked (by Justice Sotomayor).  Clement's reply:

We haven't been offered that accommodation, so we haven't had to decide what kind of objection, if any, we would make to that. But it's important to recognize that as I understand that litigation, the objection is not to the fact that the insurance or the provider pays for the contraception coverage. The whole debate is about how much complicity there has to be from the employer in order to trigger that coverage. And whatever the answer is for Little Sisters of the Poor, presumably you can extend the same thing to my clients and there wouldn't be a problem with that.

 Whether Justice Kennedy will be the deciding vote in this case is certain to be subject to much speculation and his questions will be closely read; our extended discussion is here.  But without question, the Justices seem sharply divided.


March 25, 2014 in Courts and Judging, Current Affairs, First Amendment, Gender, Oral Argument Analysis, Religion, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 21, 2014

Public-Sector Fair Share Appears to be Safe

 The Supreme Court heard oral arguments today in Harris v. Quinn, the case testing whether fair-share fees for non-union in-home care providers in the Illinois Medicaid program violate the First Amendment.  (Our argument preview is here.)  The Court in Abood v. Detroit Board of Education previously upheld public-sector fair-share fees to support a union's collective bargaining activities in the interests of preventing free-riders on a union's activities and promoting workplace peace.  But this case put Abood directly in the Court's cross-hairs, as the petitioners argued to overturn the decades-old case.

If today's arguments are any indication, that seems an unlikely result.

Still, it's not entirely clear what the Court will do with the case.  For one thing, there was just a lot of confusion about it.  For example, on the question whether the union's work here (in the state's Medicaid program) represented advocacy on a public matter (thus strengthening the non-members' claims), no clear position emerged.  Here's an exchange between Justice Kagan and the attorney for the petitioners (the home-care workers):

Justice Kagan: But you're not objecting, I think, to the union as a whole.  What you're objecting to is an individual employee having to support that activity.  The scale is no different.  It's an individual employee.

Mr. Messenger: Yes, it's an individual employee being forced to support that expressive activity.  So the question becomes: What expressive activity are they being forced to support?  And when you're speaking of changing an entire government program, for example, Medicaid rates across the board, that is a matter of public concern.  That is a matter of lobbying or political --

Justice Kagan: But that's exactly what the individual employee in Justice Scalia's hypothetical is arguing for.  He wants wage rates to be changed across the board.  He knows they're not going to be changed just for him.  He wants higher wage rates.

Mr. Messenger: But, again, under this Court's private--under the public conern test, an individual simply speaking to that usually does not rise to a matter of public concern.

Chief Justice Roberts jumped in during the respondents' argument to underscore the problem.  He made a point that under the state's position one union's advocacy for increased Medicaid rates might be an issue of public concern (as in a teacher's union), but another union's advocacy for the same incrased Medicaid rates is a private employment issue (as here), suggesting that that can't be. 

Justice Breyer quickly rescued the respondents and outlined the opposite position--"Collective bargaining with any employer, meat packers, hours, safety depends on hours, always can involve public interest questions"--arguing that the Court shouldn't be in the business of this kind of line-drawing.

The one to watch here may be Justice Kennedy.  He suggested at one point that nearly all of this union's activities were public matters, but at a different point that the Court's jurisprudence provides (at least) a partial solution: non-members can be compelled to pay fair-share fees for those activities that might involve free-riding, but not for other activities for which they don't receive a benefit.  (Justice Scalia piped in to remind us that under the Court's jurisprudence non-members can opt-out of fees for benefits that they don't enjoy.)  The problem here may be sorting out which kind of benefit is which.

Justice Alito underscored this problem when he pressed the state on a hypothetical non-union teacher who has to pay a fair-share fee to support the union's advocacy of the tenure system.  But the teacher disagrees with the union's position on this, so has to pay another organization an equal amount to represent his or her views--just to counteract the advocacy supported by his or her compelled fair-share fee.  Justice Kennedy posed a similar hypo.  The state responded that here the fair-share fee supports union activity that benefits all workers, but it's not clear that a majority bought it, or, if they did, that they weren't also thinking beyond the narrow facts of this case.

The case also involved several puzzles, both practical and jurisprudential, that seem to put the petitioners' positions at odds with common sense and doctrine.  Here's Justice Sotomayor raising one with the petitioners:

Justice Sotomayor: Is there a problem for the State to say--the union, to organize has a certain amount of costs.  So putting aside fair representation laws, could the State say, this is what we're going to pay police officers, 100 dollars, but we're going to pay union members 110 to reimburse them for the cost of negotiation.  Would that be OK?

Mr. Messenger: Yes.

 Here's Justice Kagan raising another:

Justice Kagan: Because here's the thing: That in the workplace we've given the government a very wide degree of latitude and there's much that the government can do.  It can fire people.  It can demote people for things that they say in the workplace, not for things that they say as a citizen . . . .

So you're saying, well, the government can punish somebody for saying something, but the government in the exact same position cannot compel somebody to say something they disagree with.  And I want to know what's the basis for that distinction, which it seems to me is just as hard as -- as if you were answering under the petition clause.

There was also significant confusion about whether the state's flexibility in negotiating wages--and therefore why the union's participation is necessary.  (If the wages are set--by the Medicaid program, for example--what benefit does the union bring?) 

Justices Scalia and Alito both expressed some skepticism over the state's intent in requiring fair-share, Justice Alito suggesting that it was Governor Blagojevich's reward to the union for a huge campaign contribution.

In rebuttal, Justice Scalia pressed the petitioners about free-riding and what their position could do to unions; Justice Kagan pressed them about what their position would do to "thousands and thousands" of public contracts that include fair-share provisions.  Justice Kagan earlier put a finer point on the case's significance and with the help of respondents' counsel told us just what's at stake:

Justice Kagan: So, Mr. Messeenger, even on the compulsory fees, I mean, what strikes me is that this is -- I'm just going to use the word here, it is a radical argument.  It would radically restructure the way any workplaces across this country are -- are run.

And let me just put it to you this way and ask if you agree with this -- with this statement.  Since 1948, since the Taft-Hartley Act, there has been a debate in every State across this country about whether to be a right-to-work State and people have disagreed.  Some States say yes, some States say no.  It raises considerable heat and passion and tension, as we recently saw in Wisconsin.  And -- but, you know, these are public policy choices that States make.

And is it fair to say that what you're suggesting here, your argument, is essentially to say that for 65 years, people have been debating the wrong question when they've been debating that, because, in fact, a right-to-work law is constitutionally compelled?

Mr. Messenger: In the public sector, yes . . . .

January 21, 2014 in Association, Cases and Case Materials, First Amendment, Fundamental Rights, News, Oral Argument Analysis | Permalink | Comments (1) | TrackBack (0)