Monday, February 27, 2017
The Court heard oral argument in Packingham v. North Carolina in which the North Carolina Supreme Court upheld the constitutionality of a state statute, NCGS § 14-202.5, making it a felony for registered sex offenders to access certain commercial social networking sites. Packingham was convicted of a felony for his facebook page on which he wrote " Thank you Jesus. God is good" regarding a result on his parking ticket.
Justice Kagan distilled the importance of the issue in her questioning of the North Carolina Deputy Attorney General, Robert Montgomery:
JUSTICE KAGAN: So --so a --so a person in this situation, for example, cannot go onto the President's Twitter account to find out what the President is saying today?
JUSTICE KAGAN: Not only the President. I mean, we're sort of aware of it because the President now uses Twitter. But in fact, everybody uses Twitter. All 50 governors, all 100 senators, every member of the House has a Twitter account. So this has become a crucial --crucially important channel of political communication. And a person couldn't go onto those sites and find out what these members of our government are thinking or saying or doing; is that right?
Montgomery answered both queries in the affirmative, but suggested that Packingham could go onto the websites of government officials to learn their views.
The possibility of ample available alternatives, the question of narrow tailoring, and the overbreadth of the statute were the linchpins of the First Amendment argument, as David Goldberg representing Packingham explained when Justice Kennedy inquired about the "doctrinal choices" supporting an argument that the statute was unconstitutional. There were analogies to felon disenfranchisement and felons restricted Second Amendment rights, but Goldberg insisted that the First Amendment was different.
Prompted by this distinction based in part on originalist invocations, Chief Justice Roberts seemed to eschew originalism, given that the issue involves "access to websites and all the sort of things we're dealing with here." For his part, Justice Alito tried "to translate this into terms that would be familiar at the time of the adoption of the First Amendment," analogizing to a state law prohibiting anyone convicted of kidnapping children from visiting a nursery school. Goldberg first noted that the First Amendment did not apply to the states at the time of the Framers, but then stated that there was not a First Amendment right to visit a nursery school.
The notion that internet social sites are "virtual places" like playgrounds was one advanced by the state attorney, but one that the Justices did not seem to accept. Yet even if the virtual-spatial analogy was pertinent, the type of prophylactic rule upheld in Burson v. Freeman (1992) regarding a prohibition of campaigning within 100 feet of a polling place, seemed unpersuasive. Montogomery seemed to contend this was North Carolina's best case, to which Justice Kennedy replied that it "does not help you at - - - at all." The conversation continued:
JUSTICE KENNEDY: That was --number one, it was applied to everyone. It was 100 yards. You could have all the political speech in the world outside the --was it 100 yards or 100 feet, whatever it was. It seems to me that --do you have --do you have any better case than that?
MONTGOMERY: Well, the only --the reason -
JUSTICE KENNEDY: If you cite Burson, I think --I think you lose.
MONTGOMERY: The reason that that case is the one that I mentioned is because the rationale for that was that these kinds of crimes that happened in that zone often go undetected -
JUSTICE KAGAN: Mr. Montgomery, I agree with you. That's your closest case. It's the one that I asked Mr. Goldberg about, because it's the only case that I know of where we've permitted a prophylactic rule where we've said not all conduct will have these dangerous effects, but we don't exactly know how to separate out the dangerous --dangerous speech from the not-dangerous speech, so we're going to have a prophylactic rule. That is like one out of a zillion First Amendment cases that we've decided in our history.
And as Justice Kennedy says, there are many reasons to think it's distinguishable from this one.
MONTGOMERY: Well, the fact that it applied to all in Burson, I believe, makes our case a better case because it doesn't apply to all. It applies to sex offenders who have committed crimes, who have shown that they cannot conform to the law and are likely to be recidivists. So the fact that it's a narrower group is not --does not make it more problematic, but makes it --makes it better than Burson.
JUSTICE KENNEDY: Well, that was --that was not the rationale of Burson v. Freeman. Under that rationale, you --you could have said that it applies only to members of a political party and it would have been narrower. That would make it worse. The Petitioner here is saying you are singling me out and saying that I can't have the First Amendment rights that everybody else does. That's exactly the opposite of what was happening in Burson.
MONTGOMERY: But it wouldn't be like singling out a political party. These are people who have committed sex offenses. So, again, they have had certain disabilities already, civil disabilities. . . .
While making predictions of outcomes based on oral arguments is always fraught, the fact that Mr. Montgomery did not have a better "best case" than Burson to support the constitutionality of the North Carolina statute strongly suggests the case will be reversed.
Tuesday, February 21, 2017
The Supreme Court heard oral arguments today in Hernandez v. Mesa, the case testing whether the family of a Mexican youth can sue a border patrol agent for Fourth and Fifth Amendment violations for shooting and killing the youth while the agent was on the U.S. side of the border, but the youth was in the concrete border culvert, 60 feet into Mexico.
The parties briefed three issues--whether a formalist or functionalist approach governs the Fourth Amendment's application outside the U.S., whether the officer enjoyed qualified immunity for the Fifth Amendment violation, and whether Bivens provided a remedy--but only two were really on display today: the extraterritorial application of the Fourth Amendment, and Bivens. And if the arguments are any prediction, it looks like a closely divided Court could rule for the agent. But the case could also be a good candidate for re-argument, when a ninth Justice joins the Court.
The plaintiffs' biggest problem was defining a workable test for the application of the Fourth Amendment. The formalist approach has the benefit of providing a bright-line for the application of the Fourth Amendment--the actual border. But the functional approach (or something like it) is more flexible in a situation like this, where the difference in a remedy could (absurdly, to some) be measured in the 60-foot distance between Hernandez and the U.S. border when he was shot.
Trying to walk a line between a rigid-border approach and a functional approach without any clear and determinate limits, the plaintiffs argued for a test that would apply the Fourth Amendment only in the culvert area straddling the border--an area that includes both U.S. and Mexican territory, but just barely. They justified this case-specific approach on the number of cross-border shootings that occurred of late: a particular problem demands a particular solution.
Justices Ginsburg, Breyer, Sotomayor, and Kagan seemed on board with this approach; Chief Justice Roberts and Justice Alito did not. If the Court splits 4-4 on the issue (as seems likely), the lower court ruling simply stays in place. That ruling said that neither the Fourth nor Fifth Amendment applied, and that Hernandez therefore had no federal constitutional remedy.
But whatever the Court says about the "extraterritorial" application of the Fourth Amendment, there's another issue--a threshold one: Bivens. Here, the Justices seemed to divide along conventional political lines. Justice Kennedy well outlined the conservatives' case when he asked the plaintiffs this:
Since 1988, this Court has not recognized a single Bivens action. We look for special considerations. You've indicated that there's a problem all along the border. Why doesn't that counsel us that this is one of the most sensitive areas of foreign affairs where the political branches should discuss with Mexico what the solution ought to be? It seems to me that this is an extraordinary case for us to say there's a Bivens action in light of what we've done since 1988 where we haven't created a single one.
The four conventional progressives pushed back, equally hard.
If the Court divides 4-4 on Bivens, as seems likely, it might not matter to the outcome, because a 4-4 split on extraterritoriality would hand the win to Mesa, the border agent. But a 4-4 split on Bivens would leave open a substantial question that the Court itself directed the parties to answer: does Bivens provide a remedy here? Because there's no lower-court ruling on Bivens (the en banc Fifth Circuit did not address the issue, and only reinstated the non-Bivens portions of the panel ruling), a 4-4 split would not even leave in a place a lower court ruling. Given that the Court itself added this question--suggesting that it would like an answer--a 4-4 split may mean that the Court holds this case over for re-argument with a ninth Justice.
Thursday, January 19, 2017
An unusually short-stafffed Supreme Court heard oral arguments yesterday in Ziglar v. Abbasi, the case testing whether detainees in the early post-9/11 round-ups could sue government officials for damages for constitutional violations based on their harsh conditions of confinement. (Our preview is here.)
The Court leaned toward the government.
The deck was already stacked against the detainees, what with Justices Sotomayor and Kagan both recused. This left a six-member Court, with just two (Justices Ginsburg and Breyer) more likely to favor the detainees. But even if Justices Ginsburg and Breyer would rule for the detainees, they'd need a third vote to tie and affirm the Second Circuit's ruling, or a fourth to outright win. It didn't look like that will happen.
The deck was stacked for another reason: defendants challenged the Second Circuit's ruling on three independent grounds--failure to meet the pleading standards in Iqbal, lack of a Bivens remedy, and qualified immunity. A ruling for the officials on any one of these grounds would result in a loss for the plaintiffs. And based on the arguments, it seems likely that the Court could rule on different grounds for the different classes of defendants.
Much of the arguments focused on Bivens, and whether the plaintiffs' claim raised a "new context" for Bivens. Chief Justice Roberts and Justice Kennedy--the two perhaps next most likely to rule for the plaintiffs, after Justices Ginsburg and Breyer--both said yes, based on the national security and immigration context of the case. (The plaintiffs have always maintained that the context is the condition in ordinary prison detention (and therefore a familiar Bivens context), not national security and immigration, because that's what they complained about. But Chief Justice Roberts and Justice Kennedy didn't buy it.) If so, the Court will likely rule that Bivens doesn't extend to this case, and toss the plaintiffs' claims.
Pleading standards and qualified immunity got somewhat less attention, but could also defeat the plaintiffs' claims. As to pleading standards, the government argued that this case is simply a re-do of Iqbal itself, with the same pleading deficiencies. As to qualified immunity, the government argued that high-level DOJ officials couldn't be held liable for establishing policies, while the prison officials argued that they couldn't be held liable simply for implementing policies. If so, qualified immunity puts the plaintiffs between a rock and a hard place, getting relief neither against high level DOJ officials nor lower-level prison officials.
At the same time, the Court (particularly Justice Kennedy) seemed concerned that the plaintiffs would have some remedy, even if not a Bivens remedy. Habeas, the Administrative Procedures Act, injunctive relief, civil rights conspiracy (42 U.S.C. 1985), and the Federal Tort Claims Act were all floated at one time or another as potential remedies, but each has its limits or outright problems. Between some or all of these, though, there's probably enough of a non-Bivens remedy to satisfy Justice Kennedy and even Chief Justice Roberts, if, indeed, that's a concern that might sway them.
Wednesday, January 18, 2017
The Court heard oral arguments in Lee v. Tam involving the constitutionality of the denial of trademark registration to a band called "The Slants" on the ground that the mark would be disparaging. Recall that the en banc Federal Circuit held that the disparagement provision in Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), barring the the Patent and Trademark Office from registering scandalous, immoral, or disparaging marks, was unconstitutional because it violates the First Amendment. The en banc majority found that the disparagement provision constituted viewpoint discrimination and failed strict scrutiny.
However, like so many First Amendment controversies, the case involves a contest between doctrines, as today's oral argument illustrated and as we discussed in our case preview.
For example, it is unclear whether the First Amendment is applicable at all. At issue is whether the band can register this specific trademark, as opposed to whether or not the band can use the name or even whether the band could sue others who used the name for unfair competition. Perhaps the trademark is actually government speech, a prospect that Justice Ginsburg surfaced with an allusion to Walker v. Texas Sons of Confederate Veterans, the confederate flag license plate case, by distinguishing between the license plate (which the government continues to own and which the car driver must affix) and the trademark symbol (which the government does not "own" and the registrant can use or not).
Or perhaps, even if the First Amendment does apply, the analysis should be more akin to a one involving a subsidy, as Malcolm Stewart, Deputy Solicitor General, argued, analogizing to National Endowment for the Arts v. Finley (1998), in which the Court found constitutional a requirement that "general standards of decency" be considered.
Or perhaps the "trademark" is best analyzed under a limited forum analysis, as Stewart also argued, although Chief Justice Roberts seemed to disagree that the "entire trademark program" could be properly considered limited. Additionally, Justice Kennedy later questioned the appropriateness of a forum hypothetical:
STEWART: . . . . Another example I would give, and it's a hypothetical example, but at least I have a strong instinct as to how the --the case should be decided. Suppose at a public university the --the school set aside a particular room where students could post messages on topics that were of interest or concern to them as a way of promoting debate in a nonconfrontational way, and the school said, just two ground rules: No racial epithets and no personal attacks on any other members of the school community.
It --it would seem extraordinary to say that's a viewpoint-based distinction that can't stand because you're allowed to say complimentary things about your fellow students
JUSTICE KENNEDY: So --so the government is the omnipresent schoolteacher? I mean, is that what you're saying?
JUSTICE KENNEDY: The government's a schoolteacher?
STEWART: No. Again, that analysis would apply only if the public school was setting aside a room in its own facility. Clearly, if the government attempted more broadly to restrict disparaging speech by students or others rather than simply to limit the terms under which a forum for communication could be made available, that would involve entirely different questions.
Yet Justice Kennedy seemed equally displeased with the notion that "trademark law is just like a public park" - - - "the classic example of where you can say anything you want. The attorney for The Slants seemed to approve of this analogy, but Justice Kagan found it troublesome:
JUSTICE KAGAN: Well, Mr. Connell, this can't be right, because think of all the other things, the other --I mean, I'll call them content distinctions because they are --that trademark law just makes. I mean, Section 2 prohibits the registration of any mark that's falsely suggestive of a connection with persons likely to cause confusion, descriptive, misdescriptive, functional, a geographic indication for wine or spirits, government insignia, a living person's name, portrait, or signature. You couldn't make any of those distinctions in a --in a --in a public park, and yet, of course, you can make them in trademark law, can't you?
Or perhaps the benefit/forum analysis in combination might be a proper guide. Chief Justice Roberts, questioning the attorney for the respondent, raised this possibility again, in a hypothetical about the government putting on a Shakespeare festival in which presentations disparaging Shakespeare would be excluded. This also led to Justice Ginsburg analogizing to Pacifica v. FCC, which Justice Breyer noted might be apt as a permissible time, place, and manner regulation: The Slants can use the words in the entire universe, except as a trademark. Eventually, Justice Sotomoyor took the argument to an interesting turn:
SOTOMAYOR: . . . . But your argument earlier was that if someone slanders or libels an individual by saying --Trump before he was a public figure --Trump is a thief and that becomes their trademark, that even if they go to court and prove that that's a libel or a slander, that trademark would still exist and would be capable of use because otherwise canceling it would be an abridgement of the First Amendment?
MR. CONNELL: I believe that's correct.
JUSTICE SOTOMAYOR: That makes no sense.
Finally, the relevance of commercial speech surfaced, although not particularly convincing. The attorney for The Slants referred to the commercial vs. the noncommercial aspects of trademark, but this did not seem to gain much traction. Justice Alito did, however, ask whether "viewpoint discrimination is always prohibited in commercial speech," and used as an example, whether "a manufacturer of cigarettes could not place on a package of cigarettes "Great for your health. Don't believe the surgeon general." The attorney for The Slants replied that viewpoint discrimination in commercial speech was prohibited under IMS v. Sorrell (2011).
Another "hypothetical" - - - Blackhorse v. Pro-Football, Inc., in which a divided Trademark Trial and Appeal Board canceled a football team's trademark under the disparagement clause - - - was not broached in the oral argument, but looms large in any decision the Court will render.
Thursday, July 14, 2016
Justice Ginsburg's comments about presidential candidate Donald Trump have caused controversy and invited comparisons with the late Justice Scalia's remarks and relationship with a sitting Vice President and his refusal to recuse himself from a case involving the VP which Scalia himself described as "heroic" in an interview. (Amy Howe for SCOTUSBlog has a great round-up of commentary on the controversy; Howard Bashman also has a good list).
But interestingly, Justice Scalia - - - as well as Justice Kennedy - - - broached the possibility of a Donald Trump presidential candidacy more than 25 years ago, in the 1989 oral arguments in Austin v. Michigan Chamber of Commerce. The Court in Austin upheld the constitutionality of a Michigan statute that prohibited corporations, excluding media corporations, from using general treasury funds for independent expenditures in connection with state candidate elections, rejecting both First Amendment and Equal Protection claims, and recognizing a government interest in preventing corruption or the appearance of corruption in the political arena from large corporate treasuries. Both Scalia and Kennedy dissented. Twenty years later, the Court, 5-4, with Kennedy authoring the opinion and Scalia joining, overruled Austin in the controversial 2010 Citizens United v. FEC.
Near the beginning of the Austin oral arguments, Justice Scalia uses Donald Trump, alluding to the wealth that would allow him to self-finance a campaign, as a comparison to corporate financing:
General Caruso, why is there a greater risk to the political process from an independent political expenditure by a family corporation, closely held corporation, eight family members, and they want to spend the corporation's money for a particular candidate whom they think will favor their business.
That... that is prohibited by this.
But if Donald Trump wants to come in and spend as much money as he likes, that is perfectly all right.
Why wouldn't it make much more sense, if you are worried about the problem, to establish an amount of money as the criterion?
A few moments later, Kennedy follows:
Then it... it seems to me that Justice Scalia's question indicates that you have to give a specific reason why a corporation of that type presents more [of] a danger than Donald Trump, and I didn't really hear the answer to that question.
Louis J. Caruso: Well, the thing of it is--
Anthony M. Kennedy: And it has to be answered in the terms of a compelling interest that is narrowly tailored.
Did Justice Kennedy actually call Donald Trump a "danger" in 1989?
h/t Navid Khazanei
July 14, 2016 in Campaign Finance, Cases and Case Materials, Courts and Judging, Elections and Voting, Equal Protection, First Amendment, News, Oral Argument Analysis, Speech, Supreme Court (US) | Permalink | Comments (0)
Thursday, March 24, 2016
The Supreme Court heard oral arguments yesterday in Zubik v. Burwell, the case testing whether the government's accommodation to the contraceptive requirement for religious nonprofits violates the Religious Freedom Restoration Act. Our preview is here.
The big news is, well, that there's no big news. Nothing new came out in oral arguments, and the justices' questions seemed only to put their positions on public display or to help them write their mostly-already-decided decisions. The Court spent plenty of time on how the accommodation works (and therefore whether it's a substantial burden), and whether there are other ways the government can achieve its interests (and therefore whether the accommodation is narrowly tailored). The number and types of exceptions already built into the requirement will clearly play a part in the decisions (because they show, or don't, how the accommodation isn't narrowly tailored, depending on your view). The question where the government does, or can, draw the line between religious nonprofits and churches will also be important (for the same reason). But none of this is really new.
The justices seemed to divide four-four, traditional progressives for the government and traditional conservatives for the nonprofits. Justice Kennedy may have left himself a small (very small) opening to go with the progressives; but if he does, it'll be on narrowly tailoring. (Justice Kennedy bought the nonprofits' theory that the government accommodation "hijacked" their insurance coverage--"hijack" being the word of the day for the nonprofits and the conservatives--and therefore created a substantial burden on their religious practice.)
If there's a four-four split, the lower courts' decisions will stand. This means, without some other action by the Court, that the accommodation will be invalid only in the Eighth Circuit--the only one to rule for the nonprofits so far--and valid in the rest of the country.
Wednesday, March 23, 2016
Here's my oral argument analysis in Simmons v. Himmelreich, re-posted from SCOTUSblog, with permission:
If you read the briefs in Simmons v. Himmelreich, you know that it could be tricky to figure out when a court’s dismissal of a federal prisoner’s Federal Tort Claims Act case forecloses his parallel Bivens claim. The issue involves no fewer than four interlocking FTCA provisions that together create quite a puzzle.
But for all the potential technicalities and complications in the case, the oral arguments turned on a surprisingly straightforward question: Does the plain language of just one FTCA provision, the “exceptions” provision, explicitly allow a parallel claim?
The question harkens back to the lead argument that Walter Himmelreich made in his merits brief. He pointed to Section 2680 of the FTCA, titled “Exceptions,” which says that “[t]he provisions of this chapter and section 1346(b) of this title shall not apply to” over a dozen different types of claims that are altogether exempt from the FTCA. (This includes Himmelreich’s FTCA claim, dismissed under the discretionary-function exception in Section 2680.) This means that the government has not waived immunity for these claims, and that the FTCA offers no cause of action, liability, or relief for them.
But by a literal reading, it also means that there is no bar to a non-FTCA claim arising out of the same events that falls within a Section 2680 exception. That’s because “the provisions of this chapter” in Section 2680 include the FTCA judgment bar itself. In other words, the plain language of Section 2680 exempts from the excepted claims (like Himmelreich’s FTCA claim) the very FTCA provision that bars a person like Himmelreich from filing a parallel claim. If this is right – and the plain language seems to support it – then the “exceptions” provision explicitly allows Himmelreich’s parallel Bivens claim. This may be the cleanest path to victory for Himmelreich, and it seemed to have the support of Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.
While the argument seems straightforward, there are some problems, according to the federal government. For example, if this reading of Section 2680 is right, then other key sections of the FTCA similarly wouldn’t apply to Section 2680 claims. In particular, the FTCA’s definitions section wouldn’t apply, and the section precluding state tort suits against federal agencies that could otherwise be subject to suit under their sue-and-be-sued authority wouldn’t apply. According to the government, this would lead to absurdities (in the case of the FTCA’s definitions section) and “massively expand[ed]” direct liability for the government, contrary to the intent of the FTCA (in the case of the section precluding state tort suits against federal agencies with sue-and-be-sued authority). (The provision applying the Federal Rules of Civil Procedure and the appellate review provision wouldn’t apply to Section 2680 claims, either. But it’s not clear that these lead to significant problems under the FTCA.) Chief Justice John Roberts pushed back against Christian Vergonis, arguing on Himmelreich’s behalf, on these points, suggesting that he wasn’t persuaded by Himmelreich’s literal reading of Section 2680.
The Court also spent significant time trying to figure out if Himmelreich’s Section 2680 argument runs contrary to the result in United States v. Smith. The government argued that if Section 2680 means precisely what it says (as Himmelreich claims), then Smith came out wrong. But Smith doesn’t address the question in this case, and it doesn’t compel the result. The arguments didn’t produce any further clarity on Smith or suggest that Smith might sway anyone’s vote. In the end, Smith is probably neutral: the government’s Smith argument alone doesn’t seem likely to change any positions on the Court.
Other arguments were in play, but barely. For example, Sotomayor opened with a line of questions for the government about why something as arbitrary as timing should matter – that is, why a plaintiff’s Bivens claim should be dismissed if filed after his FTCA claim, but not if filed before it. Ginsburg emphasized that the FTCA claim and the Bivens claim were different – the former looking to the government, but the latter looking to the individual officer – and why that means that Himmelreich’s Bivens claim is not subject to claim preclusion. And Justice Samuel Alito, leaning in the opposite direction, against Himmelreich, asked several times, and in several different ways, why a plain reading of the term “judgment” in the FTCA’s judgment bar didn’t answer the case. He also asked whether the Court should even address Himmelreich’s Section 2680 argument, given that the Sixth Circuit didn’t rule on it.
Based on the arguments, we could be looking at a four-to-four split, with the Court’s more liberal Justices siding with Himmelreich and his Section 2680 argument, and the more conservative Justices siding with the government and its judgment-bar argument. (Justice Anthony Kennedy asked just two questions, but they seemed to lean against Himmelreich.) That would leave the Sixth Circuit’s ruling in favor of Himmelreich in place. But it would also leave Himmelreich’s Section 2680 argument – and the larger question whether a prisoner’s dismissed FTCA claim can foreclose his parallel Bivens claim – open and on the table.
Monday, March 21, 2016
The Supreme Court heard oral arguments today in Whittman v. Personhuballah, the case testing whether a state's move to pack black voters into a congressional district supposedly to comply with Section 5 of the Voting Right Act, but with the effect of diluting black voters' influence, violates equal protection.
Not surprisingly, the justices spent a good deal of time on standing, in particular, whether Representative Forbes, a congressman who had a lock on reelection in District 4, had standing to challenge the lower court's redistricting plan, because it made it tougher for him to get reelected in District 4. (Indeed, he's running in District 2, where he has a better chance of election, for this reason.) Justices Sotomayor and Kagan seemed to take strong positions that Forbes lacked standing; Justice Breyer staked out an only somewhat weaker position. The conservatives, along with Justice Kennedy, seemed to lean the other way.
On the merits, Justice Kagan put the finest point on the challengers' theory: If a legislature redistricts based malign racial intent, but the map also perfectly promotes acceptable political interests, is it subject to strict scrutiny? Michael Carvin, attorney for the challengers, said no. Justice Kagan went right to the point: "that sounds to me as though it's a harmless error rule for racial discrimination. And we've never had a harmless error rule for racial discrimination."
Chief Justice Roberts put a similar question to all the attorneys, but his hypo did not include any other evidence of racial motive: "If race and partisanship are co-extensive, then . . . which one predominates?" Opponents of the legislature's map had to concede that it'd be a tie; and under a tie, race could not predominate.
The difference between Justice Kagan's hypo and Chief Justice Roberts's hypo is the evidence of the 55-percent BVAP floor. But Chief Justice Roberts didn't seem inclined to look to that evidence to show that race predominated with the legislature. He asked: How do we determine the intent of the legislature? By 10 percent say-so? By 80 percent say-so? What if most of the legislators were only interested in protecting their own party, even though the sponsor of the legislature's redistricting plan used a 55-percent-BVAP (race-based) floor? If the direct evidence of a 55-percent-BVAP floor doesn't persuade that race predominated, then it's a tie, and then race didn't predominate--and the legislature's plan stands.
Chief Justice Roberts was also troubled that the lower court didn't require the plaintiffs to show that a map based on partisanship interests would be different.
With Justice Kennedy seeming to lean with the conservatives, the case could be headed for a 4-4 split, which would uphold the lower court's ruling that District 3 was an unconstitutional racial gerrymander.
Wednesday, March 2, 2016
The Court heard oral arguments today in Whole Woman's Health v. Hellerstdet (previously Cole), the case being touted as the most important abortion rights case in many years. Recall that the Court granted certiorari to the Fifth Circuit's decision essentially upholding the bulk of the controversial HB2 statute passed in 2013 (despite the famous filibuster by Wendy Davis). A divided Supreme Court previously vacated the Fifth Circuit stay of the district judge's injunction against portions of the law, thus reinstating the district judge's injunction at least in part.
The Fifth Circuit's most recent opinion, reversing the district judge, held that HB2's admitting privileges requirement and ambulatory surgical center (ASC) requirements, did not impose an "undue burden" on women and were thus constitutional under the Fourteenth Amendment's Due Process Clause. Importantly, this is the decision that would stand should the Court split 4-4. The most likely scenario of such a split would be Chief Justice Roberts, and Justices Alito, Thomas, and Kennedy on one side and Justices Ginsburg, Breyer, Kagan, and Sotomayor on the other. The most likely scenario of a reversal of the Fifth Circuit and a finding that HB2's provisions are unconstitutional is generally considered to be Justice Kennedy joining the Justice Ginsburg group. Not surprisingly then, Justice Kennedy will be the focus of most any analysis of today's argument.
And indeed, Justice Kennedy took an active role in today's argument in which each of the advocates was accorded extra time in part because of the procedural issues involved regarding the challenge to HB2 as applied and what contentions may have been precluded by the previous facial challenge. While this issue did occupy the beginning of Stephanie Toti's argument on behalf of Whole Woman's Health, and questions regarding remand were raised - - - including by Justice Kennedy - - - it is unclear whether there is sufficient enthusiasm for deciding the case on procedural issues.
Instead, as Solicitor General Donald Verrilli, arguing in support of Whole Woman's Health, phrased it, the question before the Court is whether the right to abortion "is going to retain real substance" and "whether the balance struck in Casey still holds." Justice Kennedy was in the majority in the 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey authored by Justice O'Connor and which upheld the essential core of Roe v. Wade. Scott Keller, the Attorney General of Texas, not only accepted Casey in his argument but argued that it was the petitioners - - - Whole Women's Health - - - that were "trying to upset the balance that was struck in Casey."
The "balance" of Casey could be said to reside in the "undue burden" standard that the Court articulated, but today's argument displayed some of the ambiguities with that standard. On one view, which seemed to be the one Chief Justice Roberts was articulating, the statute has to pass "rational basis" and then it is measured again as to whether there is an undue burden. On the other view, the "undue burden" is measured with regard not only to the exercise of the right to an abortion but measured against the level of the state interests. Justice Breyer articulated this understanding, but importantly, in a colloquy with the Texas Attorney General after a question by Justice Alito, Justice Kennedy also seemed to adhere to this view:
JUSTICE ALITO: Would it not be the case that - - - would it not be the case - - - that a State could increase the the standard of care as high as it wants so long as there's not an an undue burden on the women seeking abortion? So, you know, if they could if they could increase the standard of care up to the very highest anywhere in the country and it wouldn't be a burden on the women, well, that would be a benefit to them. Would there be anything unconstitutional about that?
MR. KELLER: No. Provided that women do are able to make the ultimate decision to elect the procedure.
JUSTICE KENNEDY: But doesn't that show that the undue burden test is weighed against what the State's interest is?
MR. KELLER: Justice Kennedy - - -
JUSTICE KENNEDY: I mean, are they are these two completely discrete analytical categories, undue burden, and we don't look at the State’s interest?
On the question of the state's interest, Texas Attorney General Keller had a difficult time responding to the questions from Justices Ginsburg, Breyer, Sotomayor, and Kagan. Comparisons to dental procedures and colonoscopies prevailed, and on the issue of nonsurgical abortions requiring the taking of two pills which Texas law required be done at an ambulatory surgical facility, some Justices pressed especially hard. The "abortion is different" argument of Texas Attorney General Keller seemed especially unconvincing here.
The actual effect of the HB2's admitting privileges requirement and ambulatory surgical center (ASC) requirements on the closing of clinics was raised at numerous times, with Justice Kennedy interestingly interjecting the precise percentage - - - 20% - - - of the capacity of licensed facilities after the passage of HB2. Justice Ginsburg found it "odd" that Attorney General Keller pointed to the ability of women to go across state lines to New Mexico - - - which does not have similar restrictions - - - to support his contention that women were not substantially burdened.
The oral argument did little to upset the pre-argument predictions. Justice Alito was most hostile to the petitioners, and although Justice Thomas asked no questions today unlike Monday, his views on abortion do not seem in flux. Justices Ginsburg, Breyer, Kagan, and Sotomayor did not seem to find the arguments on behalf of Texas credible. While the Chief Justice has known to be surprising and could possibly craft a narrow opinion, Justice Kennedy is occupying the center. It does seem, however, as if that center tilts slightly back toward Casey and away from HB2.
Monday, February 29, 2016
The Court today heard oral arguments in Williams v. Pennsylvania on issues of due process and the Eighth Amendment revolving around the court's decision in a death penalty case and judicial ethics. The Pennsylvania Supreme Court has been especially rocked by scandals - - - with one Justice resigning because of corruption and another because of sexually explicit emails and another Justice being subject to disciplinary proceedings over the explicit emails - - - but this controversy involves a different Justice, former Chief Justice of the Pennsylvania Supreme Court Ronald Castille. Castille, who retired from the court when he reached the state mandatory retirement age, was elected in 1993, and retained in elections in 2003 and 2013. Importantly, before his election to the bench, Castille worked in the district attorney's office for over 20 years, including being twice elected to the District Attorney position; he reportedly claimed to have "sent 45 people to death row."
One of those people on death row is Terrance Williams, convicted at age 18 and whose story has attracted much interest. Williams claims that it was a violation of due process and the Eighth Amendment for Justice Castille to deny the motion to recuse himself from consideration of Williams' petition for post conviction relief. Williams contends that Castille, as a prosecutor, was personally involved in the case and the decision to seek the death penalty. Williams' post-conviction claim, moreover, is based on prosecutorial misconduct.
The central case in today's oral argument was Caperton v. Massey (2009) regarding judicial bias. Unlike the situation of Justice Benjamin in Caperton, Castille did not cast a "deciding vote" on the court. [Nevertheless, Castille's concurring opinion is worth reading for its defensiveness]. The problem is how - - - or even whether - - - to apply the 5-4 decision in Caperton, which involved judicial bias resulting from campaign contributions.
Stuart Lev, arguing for Williams, faced an almost-immediate question from Chief Justice Roberts, who dissented in Caperton, asking whether the nature of the decision of the former-prosecutor now-Justice should matter - - - was it mere policy or something more individualized? Justice Alito, who also dissented in Caperton, was wary of constitutionalizing the matters of recusal without clear lines. On the other hand, Ronald Eisenberg, arguing for Pennsylvania, seemed to admit that there could be cases in which recusal was necessary, but stressed the long time involved here - - - 30 years - - - which at one point prompted Justice Kennedy to ask "So the fact that he spent 30 years in solitary confinement actually helps the State?" (Eisenberg noted that this wasn't "exactly" the situation). Justice Sotomayor stressed that what was important was that Castille was prosecutor and judge in the "same case." For both sides, much of the wrangling was over what any "rule" should be - - - with the background of the Caperton rule being fluid rather than rigid.
The fact that Castille was only one of the Justices was important, but perhaps less so than it would be for another court. The idea that a judge simply "votes" for a result was looked on with disfavor. As Justice Kennedy stated:
But if - - - if we say that, then we say that being a judge on a 15 judge court doesn't really make much difference. You - - - you don't have a duty, and you don't have can't persuade your colleagues. It's very hard for us to write that kind of decision.
Earlier in the argument, there was some discussion of the remedy - - - and the "unsatisfying" remedy (as Justice Kagan phrased it) of sending the case back to the Pennsylvania Supreme Court to (re)consider the recusal motion. Lev, arguing for Williams, noted that this was the remedy in Caperton and also that the "Pennsylvania Supreme Court is constituted differently," now than it was then. "There were three new justices elected this last November and took office in January."
But what rule should the Court instruct the Pennsylvania Supreme Court to apply? This is likely to divide the Court just as it did in Caperton. But there does seem to be a belief among a majority of Justices that the judicial ethical rules alone are not protecting due process.
Supreme Court's Oral Argument in Voisine: Does Justice Thomas believe there is a Second Amendment issue?
Today's oral argument in Voisine v. United States centers on the statutory construction of 18 U.S.C. § 921(a)(33)(A) which defines a "“misdemeanor crime of domestic violence” as an offense that is a misdemeanor AND
has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.
The relevance of this definitional section is its application to 18 U.S.C. §922(g)(9) which makes is a federal crime for anyone "who has been convicted in any court of a misdemeanor crime of domestic violence," to "ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."
At issue in Voisine is whether the misdemeanor crimes involving family offenses that can be satisfied with a reckless mens rea are included the definition. Virginia Villa, arguing for the petitioners Voisine and Armstrong, stressed statutory definitions but the arguments delved into common law definitions as well. Arguing for the United States, Assistant Solicitor General Ilana Eisenstein stressed Congressional intent, with Justice Ginsburg surfacing the "rule of lenity."
But the argument then took a constitutional turn.
This was prompted by questioning from Justice Thomas (seemingly just as Eisenstadt believed her argument had concluded):
This Court should continue to interpret Section 922(g)(9) in light of that compelling purpose.
If there are no further questions.
JUSTICE THOMAS: Ms. Eisenstein, one question.
Can you give me this is a misdemeanor violation. It suspends a constitutional right. Can you give me another area where a misdemeanor violation suspends a constitutional right?
Justice Thomas thereafter made a First Amendment analogy, asked whether the Second Amendment was indefinitely suspended, and pointed out that the underlying misdemeanor need not have involved a firearm. In considering possible analogies, Justice Kennedy pointed to SORNA which curtails the interstate travel of registered sex offenders. (Justice Kennedy could have analogized to sex offender cases involving the restrictions on First Amendment rights as well). Justice Breyer asked whether the Congressional statute was a "reasonable regulation of guns under the Second Amendment given Heller and the other cases with which I disagreed?" This provoked laughter but was also a poignant reminder that Heller's author was not on the bench given his unanticipated death. Justice Breyer, however, continued and attempted to make clear that the constitutional question was not clearly before the Court. It may be before the Court as a matter of constitutional avoidance (the statute should be construed to avoid the constitutional question), but, as Justice Breyer stated:
So one answer would be, well, maybe so. We aren't facing the constitutional question. We are simply facing the question of what Congress intended. And if this does raise a constitutional question, so be it. And then there will, in a future case, come up with that question. So we or our point is, we don't have to decide that here.
EISENSTEIN: That's correct, Your Honor.
JUSTICE BREYER: Thank you.
EISENSTEIN: If there are no further questions.
Ilana Eisenstein was then excused by Chief Justice Roberts.
Justice Thomas broke his own well-remarked upon habit of not asking questions during oral argument; it's been a decade since he has. But as some Court observers has noticed, he did write notes which were passed to Justice Scalia. It is difficult to not to make a causal connection in this regard. Moreover, Justice Thomas assumed a more active role in a case seemingly involving Second Amendment rights, an issue which a future Court might reconsider.
However, as the Court did in another domestic violence case last term, Elonis v. United States, look for a decision that engages in statutory construction and avoid the constitutional issue.
Tuesday, January 19, 2016
The Court heard oral arguments in Heffernan v. City of Paterson, NJ today, a situation presenting a question that Justice Alito at one point described as "like a law school hypothetical." Heffernan, a police officer, was demoted for his perceived political activity: he had decided to stay neutral but was seen picking up a mayoral campaign sign at the request of his "bedridden mother" to "replace a smaller one that had been stolen from her lawn" and was therefore demoted.
At the heart of the oral argument is a large question about the purpose (and one might say the direction) of the First Amendment. On one view - - - that of the City of Paterson as represented by Tom Goldstein - - - the First Amendment requires that a person be exercising the right of free association (or speech): "It's called an individual right, not a government wrong." On the other view - - - that of Jeffrey Heffernan represented by Mark Frost - - - the First Amendment restrains the government from acting to infringe First Amendment rights, even if it does so in error. This was perhaps best expressed by Justice Ginsburg:
And I thought - - - and unlike Justice Scalia - - - that the thrust of the First Amendment is operating on government. It says government, thou shalt not - - - thou shalt not act on the basis of someone's expression, speech or belief.
Justice Ginsburg broached the analogy to Title VII, which arguably allows perceived status to support a claim, was quickly distinguished by Justice Scalia as being a statute that focuses on the employer's discrimination rather than the employee, unlike the First Amendment. There was no reference to the text of the First Amendment which of course begins "Congress shall make no law . . ." which could be read as emphasizing the restriction on government.
Justice Kennedy asked the first question of the argument to Mark Frost as he was just finishing his opening by requesting an articulation of the right: "How would you define the right that your client wishes this Court to vindicate?" But although some other Justices seemed to believe there was no actual right, Justice Kennedy later seemed more equivocal:
JUSTICE KENNEDY: You want this Court to hold that the government of the United States has a right to ascribe to a citizen views that he or she does not hold.
MR. GOLDSTEIN: Justice Kennedy, I think that that is not a First Amendment violation.
The Solicitor General's views on behalf of the United States, represented by Ginger Anders, supported the employee. Ms. Anders articulated the right as "a First Amendment right not to have adverse action taken against him by his employer for the unconstitutional purpose of suppressing disfavored political beliefs" and later as the "right not to be subject to a test of political affiliation."
Chief Justice Roberts at several points expressed concerns about a possible "flood of meritless lawsuits" if the employee does not have to show he was actually exercising a protected right.
The Justices seemed divided; Justice Kennedy may (again) be the "swing" vote on this one.
Tuesday, January 12, 2016
The Supreme Court heard oral arguments yesterday in Friedrichs v. California Teachers Ass'n, the case testing whether a state's public-sector union fair-share requirement violates the First Amendment.
Answer: Almost certainly yes.
Few cases are predictable as this one, given the Court's lead-ups in Harris and Knox (both sharply criticizing Abood, the 40-year-old case upholding fair-share requirements against a First Amendment challenge). And few oral arguments foretell the Court's and the dissent's analyses and split so clearly as yesterday's argument.
The conservative justices, including Kennedy, have made up their minds against fair share (and in favor of overruling Abood). The progressives have made up their minds in favor of fair share (and keeping Abood on the books). Both sides rehearsed the arguments that we'll see when the opinion comes out later this year.
All this made the oral arguments seem unnecessary. And maybe they were. After all, those opposing fair-share didn't seem at all troubled by the absence of a factual record in this case--even though some amici briefed significant practical labor-relations problems that arose without fair share. Instead, those opposing fair share seemed perfectly willing to rely on their own intuition about how public-sector labor relations work.
The facts don't really matter, so why should the legal arguments, when everybody's minds are made up, anyway?
Some of the early discussion focused on the extent of fair-share opponents' First Amendment claim: does it apply only to public-sector unions, or also to private-sector unions? Michael Carvin, attorney for the fair-share opponents, was clear: it only applies to public-sector unions. That's because collective bargaining for public-sector unions inevitably involves public issues--so a fair-share requirement compels non-union-members to pay for public advocacy (with which they disagree). (Private-sector collective bargaining, in contrast, involves only private employment issues.) Moreover, Carvin said that it's not always so easy to sort out what union speech goes to collective bargaining issues, and what goes to other public advocacy--a problem administering Abood that goes to its stare decisis staying power (see below).
And that leads to Carvin's next point, a clever twist on the concern about free-riders: fair-share requirements don't serve the interest of avoiding free-riders (as conventional wisdom and Abood would have it); instead, fair-share requirements let the union free ride on non-members' fair-share contributions. Carvin turned the traditional free-rider concern on its head.
And the conservatives, including Justice Kennedy, accepted all this. (Chief Justice Roberts even added at one point that if unions are so popular, the traditional concern about free riders is "insignificant.") Indeed, Justice Kennedy stated the opponents' case as clearly (and certainly as concisely) as anyone yesterday:
But it's almost axiomatic. When you are dealing with a governmental agency, many critical points are matters of public concern. And is it not true that many teachers are -- strongly, strongly disagree with the union position on teacher tenure, on merit pay, on merit promotion, on classroom size?
And you -- the term is free rider. The union basically is making these teachers compelled riders for issues on which they strongly disagree.
Many teachers think that they are devoted to the future of America, to the future of our young people, and that the union is equally devoted to that but that the union is absolutely wrong in some of its positions. And agency fees require, as I understand it -- correct me if I'm wrong -- agency fees require that employees and teachers who disagree with those positions must nevertheless subsidize the union on those very points.
The progressives pushed back with stare decisis: shouldn't the Court give some weight to Abood? Carvin said that overruling Abood would actually better square the jurisprudence. But that didn't sit well with Justice Kagan:
So really what your argument comes down to is two very recent cases, which is Harris and Knox. And there you might say that Harris and Knox gave indications that the Court was not friendly to Abood. But those were two extremely recent cases, and they were both cases that actually were decided within the Abood framework. . . .
So taking two extremely recent cases, which admittedly expressed some frustration with Abood, but also specifically decided not to overrule Abood, I mean, just seems like it's nothing of the kind that we usually say when we usually say that a precedent has to be overturned because it's come into conflict with an entire body of case law.
Some on the left also wondered whether striking Abood also mean striking mandatory bar fees and mandatory student fees (previously upheld by the Court), and whether it would disrupt reliance interests (in the form of the thousands of public-sector union contracts that rely on it).
Look for all these points in the opinion, when it comes down. And look for the conventional 5-4, conservative-progressive split. If the result in this case wasn't clear going into arguments yesterday (though it was), then arguments yesterday certainly clarified it.
(The second question in the case--whether non-chargeable expenses need to follow an opt-in rule, instead of an opt-out rule, got very little attention. This issue, too, is all but decided, by the same split: the Court will almost certainly require opt-in.)
Wednesday, December 9, 2015
Today the Court heard oral arguments in Fisher v. University of Texas - - - Fisher II - - - (again) raising the constitutionality of the admissions plan at the University of Texas that includes a consideration of race. How much a consideration of race is included in the plan as well as the effect of any considerations surfaced in today's argument which demonstrated the deep divide amongst the Justices on issues of race.
This deep divide was apparent, despite the fact that Fisher I was a 7-1 opinion as Justice Breyer noted today. (Only Justice Ginsburg dissented in Fisher I; Justice Kagan was recused). Breyer stated that the Court "promised in Fisher I" that strict scrutiny would not be "fatal in fact" as applied in university affirmative action. Justice Breyer had previously stressed in a colloquy with Bert Rein, representing Fisher, that it must be possible to use race, actually "spelling it out" to counsel. After Breyer asked for an example of using race and Rein replied "you could give more emphasis to socio-economic factors," Breyer stated:
That's not to use race. I'm saying r-a-c-e, race. I want to know which are the things they could do that, in your view, would be okay. Because I'm really trying to find out. Not fatal in fact, we've said. Okay? Not fatal in fact. Fine.
Yet the problem of the requirement of narrowly tailored proved difficult. Perhaps Solicitor General Verrilli, supporting the University of Texas, expressed the problem best by calling it a "Catch-22." Indeed, it seemed that the university's plan was problematic both because it was and was not effective. Nevertheless, one recurring argument was whether the University of Texas plan was as good as - - - if not better - - - than the plans upheld in Grutter and Bakke.
The arguments were not limited to the means chosen, however, for the continued validity of diversity as a compelling interest in higher education surfaced repeatedly. While General Verrilli did not mention George Washington, he did aver to the continued importance of diversity in higher education and for the nation. Moreover, there were references to the hope expressed by the Court in Grutter v. University of Michigan that affirmative action would not be necessary in 25 years. Chief Justice Roberts asked counsel for University of Texas, Gregory Garre, whether we were going to "hit the deadline" in 12 more years. Justice Scalia asked Solicitor General Verrilli if he thought we could "stop disadvantaging some applicants because of their race" in another 13 years.
Scalia made it clear that he thought the time for any type of racial affirmative action was long past, if there ever was such a time. Indeed, in what was probably the most controversial commentary in the argument, Scalia advanced what might be called a separate-but-unequal argument:
There are there are those who contend that it does not benefit African-Americans to to get them into the University of Texas where they do not do well, as opposed to having them go to a less advanced school, a less a slower track school where they do well. One of one of the briefs pointed out that that most of the most of the black scientists in this country don't come from schools like the University of Texas.
. . . . They come from lesser schools where they do not feel that they're that they're being pushed ahead in in classes that are too too fast for them.
Will it all devolve to Justice Kennedy?
Recall that the Fifth Circuit in Fisher on remand from the United States Supreme Court did not remand to the district court, but decided the case. But just what that evidence might possibly be adduced at a trial was also a controversial subject at the oral argument.
Still, this might be the only compromise available for such a divided Court.
Monday, November 2, 2015
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.
Wednesday, April 29, 2015
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.
Tuesday, April 28, 2015
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.
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:
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.
JUSTICE KENNEDY: Well, can you tell me why you didn't make the fundamental argument?
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
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?
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)
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 deathpenaltyinfo.org 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.
Wednesday, April 22, 2015
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.
While 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.
Monday, March 23, 2015
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.
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?
JUSTICE GINSBURG: Jihad.
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?
MR. GEORGE: Yes.
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.