Wednesday, March 28, 2018

SCOTUS Hears Oral Arguments in Challenge to Maryland's Partisan Gerrymandering

In oral arguments in Benisek v. Lamone, the United States Supreme Court again confronted the the constitutionality of gerrymandering on the basis of political party. Recall that the Court heard arguments earlier in this Term in Gill v. Whitford involving the state of Wisconsin and centering on the Equal Protection Clause challenge. In Benisek, involving Maryland, recall that a divided three judge court denied the motion for preliminary injunction, but with Fourth Circuit Judge Paul Niemeyer arguing that the redistricting of Maryland's Sixth District diluted the votes of Republicans in violation of the First Amendment.

The Benisek argument before the Supreme Court did center the First Amendment, but equal protection doctrine did surface in the context of comparing racial gerrymandering which is analyzed under the Equal Protection Clause. Arguing for Maryland, Steve Sullivan sought to distinguish the two doctrines, with Justice Kagan responding:

JUSTICE KAGAN:  But we would be looking at the same things.  We would be looking at the same kind of direct evidence, the same kind of statements.  We would be looking at the same circumstantial evidence that has to do with where the lines were drawn and how they were drawn.  So it's -- it's all the same kind of evidence, isn't it?

Sullivan sought to distinguish the two doctrines and stated that while there may be similar types of evidence, the Court had not applied "the First Amendment retaliation rubric to that analysis," as the challengers suggested. However, Chief Justice Roberts offered another comparison:

CHIEF JUSTICE ROBERTS: Well, one difference between -- one difference between the race and partisanship is that we've always recognized that a certain degree of partisanship is acceptable.  We've never recognized that a certain degree of racial discrimination is acceptable.

2048px-Maryland_regions_map
The earliest moments of the oral argument offered a possible procedural escape hatch. The three judge court had denied the preliminary injunction and the possibility that any remedy could occur before the 2018 election seemed unlikely.  Moreover, the Justices questioned Michael Kimberly, attorney for the plaintiffs-challengers, regarding the lateness of the challenge, with Chief Justice Roberts asking about the elections that have been held in 2012, 2014, and 2016 before the challenge - - - relevant to the preliminary injunction factor of irreparable harm.

Justice Breyer offered a strategy for determining whether there are manageable standards and if so, what the standard should be.  (Recall that Justice Breyer outlined a several-step possible standard in the oral argument in Gill v. Whitford).  Justice Breyer noted that there are three cases - - - Wisconsin (Gill v. Whitford); Maryland (Benisek); and "the one we are holding, I think, is North Carolina" - - - with different variations. He began by asking the attorney for the challengers what he thought of reargument for the three cases:

JUSTICE BREYER:  * * * * What would you think of taking the three cases and setting them for reargument on the question of standard and there we'd have all three variations in front of us and we would enable people who have an interest in this subject generally to file briefs, and we'd see them all together and they could attack each other's standards or they could support each other's standards or they could attack any standard?  But there we'd have right in front of us the possibilities as -- as -- as thought through by lawyers and others who have an interest in this subject.

****
Winslow_Homer_-_Blackboard_(1877)I raise it because I want to think if there's some harm in doing that that I haven't thought of.  Is there some reason - would it be harmful to somebody? Because I do see an advantage.  You could have a blackboard and have everyone's
 theory on it, and then you'd have the pros and cons and then you'd be able to look at them all and then you'd be able see perhaps different ones for different variations and, you know, that's -- maybe there are different parts of gerrymandering that rises in different circumstances, dah-dah-dah. You see the point.

Later, in a colloquy with the attorney for Maryland, Justice Breyer again surfaced his proposal:

That's why I was thinking you've got to get all these standards lined up together, you know, and you have to have people criticizing each one back and forth and see if any of them really will work or some work in some cases and some work in other cases and it depends on the type you have.I -- I mean, that isn't squarely addressed by the lawyers because they're focused on their one case, et cetera.

Will there be a reargument?  It's difficult to tell.  But if there is, one might expect more than one brief that outlines the possible standards, with their advantages, disadvantages, and possible results in different cases, suitable for a "blackboard."

[image: Winslow Homer, Blackboard, 1877, via

March 28, 2018 in Association, Courts and Judging, Elections and Voting, Equal Protection, First Amendment, Fourteenth Amendment, Oral Argument Analysis, Recent Cases, Supreme Court (US) | Permalink | Comments (0)

Tuesday, March 20, 2018

SCOTUS Hears Oral Arguments on First Amendment Challenge to Regulation of Crisis Pregnancy Centers

The United States Supreme Court heard oral arguments in National Institute of Family and Life Advocates (NIFLA) v. Becerra in which the Ninth Circuit upheld the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act)

The California law requires that licensed pregnancy-related clinics, also known as crisis pregnancy centers, or CPCs, must disseminate a notice stating the existence of publicly- funded family-planning services, including contraception and abortion, and requires that unlicensed clinics disseminate a notice stating that they are not licensed by the State of California.  The California legislature had found that the approximately 200 CPCs in California employ “intentionally deceptive advertising and counseling practices [that] often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care.”

The California law is not unique, but as we previously discussed when certiorari was granted, other courts have consider similar provisions with mixed conclusions.

876px-What's_Sauce_For_The_Gander_Is_Sauce_For_The_Goose_(9558708758)The arguments raised several questions but one that recurred was the relevance of Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) in which the Court upheld the informed consent provisions of a state law mandating "providing information about medical assistance for childbirth, information about child support from the father, and a list of agencies which provide adoption and other services as alternatives to abortion."  Justice Breyer's invocation of the maxim "sauce for the goose, sauce for the gander" pointed to the question of why California could not also mandate that CPC's provide notice. Arguing for the challengers, Michael Farris argued that the distinction was that the CPC's were not medical, although there was much discussion of this including the definition of medical procedures such as sonograms and pregnancy tests.

Appearing for neither party, Deputy Solicitor General Jeffrey Wall nevertheless strongly advocated against the California law. Near the end of Wall's argument, Justice Alito raised the subject of professional speech proposed by the United States brief, stating that it "troubles me" and seemed inconsistent with United States v. Stevens (2010) regarding not recognizing new categories of unprotected speech. (Recall that Alito was the lone dissent in the Court's conclusion that criminalizing "crush porn" violated the First Amendment).  Alito also referenced the Fourth Circuit's "fortune teller" case, in which the court upheld special regulations aimed at fortune tellers. For Wall, laws that mandate disclosures by historically regulated professions such as doctors and lawyers should be subject only to minimal scrutiny.

The main issue raised regarding California's position was whether or not the statute was targeted at pro-life clinics, especially given the "gerrymandered" nature of the statute's exceptions. The Justices also directed questions to Deputy Solicitor of California Joshua Klein regarding the advertising requirements and disclaimers: must a facility state it is not licensed even if it is not advertising services, but simply has a billboard "Pro Life"? 

Will it be sauce for the goose as well as for the gander? 

The intersection of First Amendment principles and abortion jurisprudence makes the outcome even more difficult to predict than notoriously difficult First Amendment cases. 

[image via]

March 20, 2018 in Abortion, Due Process (Substantive), Family, First Amendment, Fundamental Rights, Gender, Oral Argument Analysis, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0)

Wednesday, February 28, 2018

SCOTUS Hears Oral Argument in Minnesota Voters Alliance on Election Attire Ban

The Court heard oral argument in Minnesota Voters Alliance v. Mansky, a First Amendment challenge to Minn. Stat. §211B.11, entitled "Soliciting near polling places," and includes among its petty misdemeanor violations a prohibition of political attire: "A political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day."  The argument tracked many of the issues in our preview here.

Important to the argument was the relevance of Burson v. Freeman (1992), in which the Court upheld a Tennessee statute which prohibited the solicitation of votes and the display or distribution of campaign materials within 100 feet of the entrance to a polling place. Early in the argument, Justice Sotomayor asked J. David Breemer, counsel for the petitioners, whether he was asking the Court to overrule Burson. Breemer distinguished Burson as "active campaigning" speech while the Minnesota statute governing attire and buttons was directed at "passive speech," but this did not seem satisfactory to the Justices. 

E362d3-20101101-pleaseidmeThe slippery slope inherent in overbreadth challenges was traversed multiple times. How could the lines be drawn? Several Justices at different points pressed counsel for Minnesota Voters Alliance on whether the statute would be constitutional if narrowed to "electoral speech" (vote for candidate X), but while counsel eventually agreed this might be constitutional, Justice Sotomayor then asked about ballot measure issues. During Daniel Rogan's argument on behalf of the State of Minnesota, Justice Alito pressed with any number of examples after stating that political connotations are in the "eye of the beholder": rainbow flags, Parkland Strong, the text of the Second Amendment, the text of the First Amendment, and "I miss Bill." And what about the very notion of entitlement to vote itself? In Breemer's rebuttal, Justice Sotomayor returned to some of the facts that had prompted the First Amendment challenge:

Let's not forget who these people were and what they were wearing, "Please ID me," which for some people was a highly charged political message, which was found, on remand, was intended to intimidate people to leave the polling booth . . . .

For Alito, the focus was not on voters who may be intimidated but on the humiliation of a voter who might be forced to cover up a political shirt with "a bathrobe."

As for the government interests supporting the statute, the question of dignity and decorum were paramount, inviting the comparison to the courtroom, which Justice Kagan raised. Although Breemer stated there was no constitutional right to vote free from being bothered, C.J. Roberts asked why a state could not make a determination that there should be such a policy.

The on-the-ground enforcement of the statute, with a potential for viewpoint discrimination, was a focus of Justice Alito's questions, but other Justices were also interested in what actually happened at the polling place. For Alito,but Rogan stressed the process and repeatedly noted that for one hundred years the statute has not been a problem and that Minnesotans know not to wear political slogans to go vote. If there are issues, Rogan stated, they are rather expeditiously solved in a bipartisan process at the polling place.

While one can assume their positions from their questions in oral argument from a few Justices - - - Alito seemed rather obvious - - - it is always risky to venture a guess about the outcome, especially when there is a conflict of constitutional interests. Indeed, this case may be most like Williams-Yulee v. The Florida Bar in which a closely-divided Court in 2015 upheld an ethics rule prohibiting judicial candidates from solicitation; Chief Justice Roberts wrote the majority opinion.

[image via]

 

February 28, 2018 in Elections and Voting, First Amendment, Oral Argument Analysis, Speech, Supreme Court (US) | Permalink | Comments (0)

Monday, February 26, 2018

No Surprises in Fair-Share Fee Oral Arguments

There were no surprises today at oral arguments in Janus v. AFSCME, the case testing whether a state law that permits a public-sector collective-bargaining agreement to require non-union-members to pay a "fair share" fee violates the First Amendment. The justices seemed to divide along predictable (and conventional political) lines, given their votes in other recent cases. The only one we haven't heard from on this issue--and didn't hear anything today--is Justice Gorsuch. If previous positions hold, as expected, the case will turn on his vote.

The case asks whether a state can require non-union members to pay the union for its collective-bargaining work (but not its outside political work) in a public-sector agency shop. The Court held in Abood v. Detroit Board of Education (1977) that it could. In particular, the Court said that the state's interests in avoiding free-riders in the agency shop and promoting and protecting labor peace justified any intrusion into First Amendment rights.

Janus tests whether the Court should overrule Abood and strike mandatory public-sector fair-share fees.

Recall that the issue has come to the Court, directly or indirectly, three times in recent years. In the first two cases, Knox v. SEIU and Harris v. Quinn, the Court sent strong signals that a majority thought fair share fees violated the First Amendment. Then, in 2016, the Court deadlocked 4-4 on the issue in Friedrichs v. California Teachers Association. Justice Scalia participated in oral arguments in Friedrichs--and indicated his position against fair share--but passed away before the Court issued its ruling.

Arguments today largely rehearsed the points made in Friedrichs and that have by now become familiar: on the one side, mandatory fair share represents compelled speech on public issues that a non-union-member (like Janus) may disagree with; on the other side, the interests in Abood justify any mild intrusion into First Amendment rights represented by a fee (and not actual compelled speech). Lurking just below the surface is the political wrangling over public-sector unions and the reality that a ruling against fair share will strike a serious blow to them.

If prior positions hold among the eight justices who participated in Friedrichs, as expected, the case will then turn on Justice Gorsuch. He revealed no cards today, though, staying quiet throughout the arguments.

February 26, 2018 in Association, Cases and Case Materials, First Amendment, News, Oral Argument Analysis, Speech | Permalink | Comments (0)

Argument Preview: Election Attire and the First Amendment

On February 28, 2018, the United States Supreme Court will hear arguments in Minnesota Voters Alliance v. Mansky, a First Amendment challenge to Minn. Stat. §211B.11, entitled "Soliciting near polling places," and includes among its petty misdemeanor violations a prohibition of political attire: "A political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day."

The Eighth Circuit, in a brief opinion affirming the district judge's grant of summary judgment to the government defendants, upheld the statute against an as-applied First Amendment challenge.

ShirtThe plaintiffs sought to wear Tea Party apparel and part of their argument was that the Tea Party was not a political party and that they had been subject to selective enforcement. The Eighth Circuit rather summarily rejected both of these arguments finding that they were not supported by the record.  In a previous opinion, the Eighth Circuit had allowed plaintiffs to develop this record by reversing the district judge's initial dismissal of the complaint on the First Amendment as-applied claim, while affirming the dismissal of the First Amendment facial challenge and an equal protection challenge. One judge dissented on the First Amendment facial challenge claim.  And it this facial challenge that is before the United States Supreme Court, the question presented by the petition for certiorari is: "Is Minnesota Statute Section 211B.11(1), which broadly bans all political apparel at the polling place, facially overbroad under the First Amendment?"

Undoubtedly the political attire at issue is expressive speech that the government could not ordinarily ban under the First Amendment. Thus, the status of the polling place on election day as an exception will be the centerpiece of the arguments. In Burson v. Freeman (1992), the Court upheld a Tennessee statute which prohibited the solicitation of votes and the display or distribution of campaign materials within 100 feet of the entrance to a polling place. The plurality opinion by Justice Blackmun applied strict scrutiny, finding that 100 feet parameter involved a public forum and that the speech was being regulated on the basis of its content. However, confronted with a "particularly difficult reconciliation" of rights: "the accommodation of the right to engage in political discourse with the right to vote - a right at the heart of our democracy," the plurality found that this was a "rare case" in which a statute survived strict scrutiny. 

Here, the State, as recognized administrator of elections, has asserted that the exercise of free speech rights conflicts with another fundamental right, the right to cast a ballot in an election free from the taint of intimidation and fraud. A long history, a substantial consensus, and simple common sense show that some restricted zone around polling places is necessary to protect that fundamental right. Given the conflict between these two rights, we hold that requiring solicitors to stand 100 feet from the entrances to polling places does not constitute an unconstitutional compromise. 

 Concurring, Justice Scalia disagreed that the case involved a public forum: "Because restrictions on speech around polling places on election day are as venerable a part of the American tradition as the secret ballot,"  "exacting scrutiny" was inappropriate. Instead, Scalia contended that although the statute was content based, it was "constitutional because it is a reasonable, viewpoint-neutral regulation of a nonpublic forum."

In addition to this precedent, it will be difficult to ignore that the oral argument will be occurring at the United States Supreme Court with its specific instruction to visitors to the argument that "identification tags (other than military), display buttons and inappropriate clothing may not be worn." Additionally, two federal statutes, 40 U.S.C. §6135 and 40 U.S.C. 13k make it unlawful "to display therein any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement" in the Supreme Court building or grounds.  The Court determined that the prohibition of political speech as applied to the surrounding sidewalk of the Supreme Court was unconstitutional in United States v. Grace (1983) (Mary Grace was displaying a placard with the First Amendment), but stopped far short of declaring the statute unconstitutional. Dissenting in part, Justice Marshall contended that the entire statute should be unconstitutional, noting that it “would be ironic indeed if an exception to the Constitution were to be recognized for the very institution that has the chief responsibility for protecting constitutional rights.”

But after some D.C. courts had upheld the statutes, a D.C. district judge declared U.S.C. §6135 unconstitutional in Hodge v. Talkin (2013), causing the Supreme Court to amend its regulations regarding the term "demonstration" to exclude "casual use by visitors or tourists that is not reasonably likely to attract a crowd or onlookers.," but to nevertheless continue to prohibit "all other like forms of conduct that involve the communication or expression of views or grievances." Nevertheless, a person arrested for wearing a jacket with the words "Occupy Everywhere" as a seemingly casual visitor to the Supreme Court building achieved little success in his attempt to vindicate himself.  In other courtrooms, judges have banned spectators from wearing expressions related to the proceedings, for example in the trial of Bei Bei Shuai for ingesting poison to kill herself that harmed her fetus, and in the high-profile criminal trial of Cecily McMillan for assaulting a police officer who she alleged grabbed her breast. The United States Supreme Court obliquely confronted the issue of courtroom spectator in 2006 in Carey v. Musladin, which was decided on other procedural grounds. (For more discussion of spectator attire in courtrooms see Dressing Constitutionally).

The courtroom analogy will most likely surface at some point during the oral argument. In its brief, the Minnesota Voters Alliance relies on Justice Marshall's partial dissenting opinion in Grace, while Manksy's Respondent's brief ventures a specific analogy:

Because voting rights are of such bedrock importance, a polling place—like a courtroom—can reasonably be restricted to reflect the solemn and weighty nature of the function that occurs there.

But it will be interesting to hear how specific comparisons the United States Supreme Court's own practices in banning political t-shirts and similar attire will be. As for the attire of those attending the oral argument, if past practices hold, none of them will be wearing a Tea Party t-shirt or even a button expressing a political viewpoint.

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February 26, 2018 in Elections and Voting, First Amendment, Oral Argument Analysis, Speech, Supreme Court (US) | Permalink | Comments (0)

Wednesday, January 17, 2018

Daily Read: Was Marbury v. Madison Right? Justice Kennedy Wants to Know

The United States Supreme Court heard oral arguments in Dalmazzi v. United States in which the complicated issue is whether 10 U.S.C. § 973(b)(2)(A)(ii), the so-called dual-officeholding ban, prohibits military officers from holding or exercising the functions of a “civil office” requiring a presidential nomination and Senate confirmation “except as otherwise authorized by law.”  The case is made more complicated by the threshold issue of whether the Court has power to review the case.  Amy Howe has a good discussion of the oral argument on SCOTUSblog.

A notable highlight of the argument was when Justice Kennedy asked ConLawProf Stephen Vladeck, arguing for the petitioners, whether Chief Justice John Marshall was correct in  Marbury v. Madison.

Lossy-page1-762px-Chief_Justice_Marshall_(NYPL_Hades-256630-EM14964).tiffJUSTICE KENNEDY:  Do you think Marbury versus Madison is right?

(Laughter.)

JUSTICE KENNEDY:  Particularly as to the interpretation with such exceptions as Congress may make.

VLADECK: So, I will confess, Justice Kennedy, that I may perhaps belong in the school of scholars who thinks that Chief Justice Marshall read both the statute and the Constitution to reach the constitutional questions he wanted to reach. I'm not sure that he nevertheless didn't end up with the right -- with the wrong answer. And, again, I think, for purposes of the question presented in this case on this Court's jurisdiction, the more relevant case is not Marbury but [Ex Parte] Bollman [1807].

And if I may, Mr. Chief Justice, I'd like to reserve my time.

 

 

ConLawProfs and ConLaw students engaging with Marbury v. Madison could not ask for a more current example of the continuing relevance of the case.  And for enhanced learning, try the CALI Lesson on the case or these ideas.

January 17, 2018 in Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, Oral Argument Analysis, Profiles in Con Law Teaching, Recent Cases, Supreme Court (US), Teaching Tips | Permalink | Comments (0)

Tuesday, December 5, 2017

Masterpiece Cake Oral Argument

 The Court heard oral argument in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission with extensive arguments from the attorney for the cakeshop (Kristen Waggoner),  the Solicitor General, the Colorado Solicitor General, and the attorney for the would-be customers (David Cole).

As predictable, the oral argument was filled with the expansiveness or limits of any doctrine that would permit the cakemaker to refuse to bake a cake for the same-sex wedding reception. Early on, Justices Ginsburg and Kagan asked Waggoner about florists and invitation designers, who Waggoner stated would be engaging in speech, but said "absolutely not" for the hair stylist. Drawing the line - - - what about the chef? the sandwich artist? - - - preoccupied this initial portion of the argument.  However, another limitation that permeated the case was whether the cakemaker's refusal could apply to racial or other identities as well as sexual orientation, or perhaps, whether it was based on identity at all.  For Kennedy, the issue could be that "there's basically an ability to boycott gay marriage." 

Also for Kennedy, however, the question is whether Colorado had been "tolerant" or "respectful" of the cakemaker's religious beliefs.  This invocation of the Free Exercise Clause was given heft by a statement by one of the Commissioners of the Colorado Civil Rights Commission as quoted by Kennedy that "freedom of religion used to justify discrimination is a despicable piece of rhetoric."  Kennedy asks the Colorado Solicitor General to "disavow or disapprove" of that statement.  Kennedy characterizes the statement as expressing a hostility to religion and later lectures the Colorado attorney:

Counselor, tolerance is essential in a free society. And tolerance is most meaningful when it's mutual.
It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips' religious beliefs.

In Waggoner's rebuttal, Justice Sotomayor proffered a different view:

Counsel, the problem is that America's reaction to mixed marriages and to race didn't change on its own. It changed because we had public accommodation laws that forced people to do things that many claimed were against their expressive rights and against their religious rights.
It's not denigrating someone by saying, as I mentioned earlier, to say: If you choose to participate in our community in a public way, your choice, you can choose to sell cakes or not. You can choose to sell cupcakes or not, whatever it is you choose to sell, you have to sell it to everyone who knocks on your door, if you open your door to everyone.

While it's always perilous to predict the outcome of a decision based n oral argument, if Justice Kennedy is the deciding vote, his attention to the religious aspects of the challenge could make the free speech argument less consequential.

 

December 5, 2017 in Family, First Amendment, Oral Argument Analysis, Religion, Sexual Orientation, Speech, Supreme Court (US) | Permalink | Comments (0)

Tuesday, October 3, 2017

SCOTUS Hears Arguments on Constitutionality of Partisan Gerrymandering

 In oral arguments today in Gill v. Whitford,  the United States Supreme Court confronted the constitutionality of gerrymandering on the basis of political party.

Recall that in an extensive opinion the three-judge court concluded that Wisconsin's "gerrymandering" of districts was unconstitutional, rejecting the notion that the Equal Protection Clause's application "must be limited to situations where the dilution is based on classifications such as race and population." Instead, the three-judge court ruled that the First Amendment and Equal Protection Clause, together, "prohibit a redistricting scheme which (1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds."

The question of whether the issue was one of Equal Protection or First Amendment permeated the oral argument, in part because of the standing hurdle, with Justice Kennedy posing the initial question asking the attorney for Wisconsin (and Gill) to assume that the Court had "decided that this is a First Amendment issue, not an equal protection issue."  Later Justice Kennedy asked the attorney for the Wisconsin State Senate as amici curiae who had been allotted time in oral argument the question in a more straightforward manner: "Is there an equal protection violation or First Amendment violation?" assuming standing.  In the argument for the challengers to the state redistricting scheme, the attorney for the appellees Paul Smith seemed to lean toward the First Amendment regarding standing, but also stated there was not "anything unusual about using the First Amendment and the Fourteenth Amendment to regulate the abusive management of state elections by state government."

How a court would regulate (or even determine) whether state government's regulation was "abusive" is one of the central questions, no matter the doctrinal frame. Are there manageable judicial standards?  Does the "efficiency gap" [EG] provide those standards? Justice Breyer sought to provide a framework early in the argument:

So I'd have step one.  The judge says,Was there one party control of the redistricting?  If the answer to that is no, say there was a bipartisan commission, end of case. Okay?

Step two, is there partisan asymmetry? In other words, does the map treat the political parties differently?  And a good evidence of that is a party that got 48 percent of the vote got a majority of the legislature. Other evidence of that is what they call the EG,  which is not quite so complicated as the opposition makes it think.  Okay?  In other words, you look to see. 


Question 3, is -- is there going to be persistent asymmetry over a range of votes? That is to say one party, A, gets 48 percent, 49 percent, 50 percent, 51, that's sort of the S-curve shows you that, you know, whether there is or is not.  And there has to be some.

And if there is, you say is this an extreme outlier in respect to asymmetry? And then, if all those -- the test flunks all those things, you say is there any justification, was there any other motive, was there any other justification?

Now, I suspect that that's manageable.

6a00d8341bfae553ef01bb09c9853b970d-800wiJustice Gorsuch returned to Breyer's standards later in the argument, essentially asking counsel for the challengers what the limiting principle would be so that every district would not be subject to litigation. 

Justice Kagan also sought a limiting principle, especially since the redistricting map at issue was so problematical.  Yet Justice Kagan contended that the science of the redistricting was a science - - - and settled and understandable - - - although Chief Justice Roberts referred to the EG as "sociological gobbledygook." The Chief Justice also noted that the EG "doesn't sound like language in the Constitution," and that the "intelligent man on the street" would view the Court as being political - - - "the Supreme Court preferred the Democrats over the Republicans" - - - which would cause "serious harm to the status and integrity of the decisions of this Court."

For Justices Ginsburg and Sotomayor, the central concern seemed to be protecting what Ginsburg called "the precious right to vote" and what Sotomayor criticized as "stacking the deck," asking about the political value of gerrymandering at all. Justice Sotomayor also described the repeated map-making and redrawing of districts until the Wisconsin map was as partisan as it could possibly be.  She asked the attorney for Wisconsin why the legislators didn't use one of the earlier maps. He answered: "Because there was no constitutional requirement that they do so."  She responded: "That's the point."

As always, it is unclear from oral argument what the Court might do, but there did seem to be recognition of the problem of gerrymandering and the possibility of manageable standards with a limiting principle for many of the Justices.

 [image via] 

 

October 3, 2017 in Elections and Voting, Equal Protection, First Amendment, Oral Argument Analysis, Race, Standing, Supreme Court (US) | Permalink | Comments (1)

Monday, May 15, 2017

Ninth Circuit Oral Arguments in Hawai'i v. Trump

A panel of the Ninth Circuit - - - Judge Ronald Gould, Judge Richard Paez, and Senior Judge Michael Hawkins - - - heard oral arguments in Hawai'i v. Trump, the appeal from the preliminary injunction against the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780) (colloquially known as the revised travel ban or "Muslim Ban 2.0").

Arguing for the DOJ in favor of the United States was Acting Solicitor General Jeffrey Wall, who also argued the same position a week ago in the Fourth Circuit en banc argument in Trump v. International Refugee Assistance Project (IRAP).  Indeed, there were specific references in the Ninth Circuit argument to that argument with regard to the scope of the injunction in Hawai'i v. Trump.  The argument spent a fair amount of time on the statutory claims, which were a basis of Maryland District Judge Theodore Chuang's injunction on appeal to the Fourth Circuit, but were not the basis of the injunction by Hawai'i District Judge Derrick Watson, who ruled on the basis of the Establishment Clause.  The issue of standing also peppered the arguments.  Wall's argument in the Ninth Circuit seemed less emphatic about the "presumption of regularity" entitled to the President than the argument last week, perhaps because of intervening events. Wall certainly did, however, hammer the Government's point that the deferential standard of Kleindienst v. Mandel (1972) should apply.  And although it was not specifically referenced, the dissent from en banc review in a Ninth Circuit precursor case, Washington v. Trump, which largely rested on Mandel, implicitly shaped the arguments.

For his part, arguing for Hawai'i, Neal Katyal, formerly with the Department of Justice, stressed that the Ninth Circuit's panel opinion in Washington v. Trump should be the model.  Katyal argued that the EO was unprecedented.

The video of the argument is worth watching, not only for its explication of the issues, but also as examples of excellent appellate advocacy.

 

However, there was a quite odd interchange regarding Neal Katyal's previous litigation stances.  At around 52:03 in the video above, Senior Judge Hawkins said to Katyal, "You have argued in the past to give deference to the Executive in immigration matters." After Katyal's acknowledgement, Judge Hawkins refers to an amicus brief in United States v. Texas and reads a passage.  The brief to which Hawkins seems to have been referring is Brief of Former Commissioners of the United States Immigration and Naturalization Service as Amici Curiae In Support Of Petitioners and the portions seem to be from page 12 of the brief, supporting the Congressional grant of wide authority to make decisions regarding deferred action in immigration deportations.  After Katyal's response, Judge Hawkins made a second reference: "You also wrote a brief in Flores-Villar."  The brief to which Hawkins refers is Katyal's brief as Acting Solicitor General for the Respondent United States in Flores-Villar v. United States, involving a mother-father differential for unwed parents.  Judge Hawkins reads the following passage without the case references or citations:

[T]he United States’ “policy toward aliens” is “vitally and intricately interwoven with * * * the conduct of foreign relations,” a power that likewise is vested in the political Branches. Harisiades v. Shaughnessy, 342 U.S. 580, 588-589 (1952). “Any rule of constitutional law that would inhibit the flexibility of the political branches of government to respond to changing world conditions should be adopted only with the greatest caution.” Mathews v. Diaz, 426 U.S. 67, 81 (1976).

Katyal responds that when he was with the United States Government he tried to convince the United States Supreme Court of this, but the Court "did not bite."  Recall that Flores-Villar was a 4-4 affirmance of the Ninth Circuit.

Certainly, both United States v. Texas, which has usually surfaced in the context of a state's standing, and Flores-Villar are somewhat pertinent immigration cases involving the scope of judicial deference.  Nevertheless, specific references to an individual attorney's briefs does seem unusual.

 

May 15, 2017 in Congressional Authority, Courts and Judging, Current Affairs, Due Process (Substantive), Establishment Clause, Executive Authority, First Amendment, Oral Argument Analysis, Recent Cases, Standing | Permalink | Comments (0)

Monday, May 8, 2017

Fourth Circuit En Banc Hears Appeal from Injunction Against "Muslim Ban 2.0"

The Fourth Circuit en banc heard almost two hours of intense oral arguments in Trump v. International Refugee Assistance Project (IRAPfrom Maryland District Judge Theodore Chuang's Opinion and nationwide injunction against the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), which is colloquially known as the revised travel ban or "Muslim Ban 2.0."  

The court of 13 Judges (there were recusals from Harvey Wilkinson III whose son-in-law is Jeffrey Wall, Acting Solicitor General arguing for the United States, and Allison Duncan), were very active and asked the questions which are by now familiar, including standing, the constitutional "choice" between Executive power in immigration and Establishment Clause doctrine, and the statutory under Immigration and Nationality Act.  (We discuss these issues and Judge Chuang's ruling here).  The opening question, however - - - before Wall even had a chance to introduce himself - - - concerned the scope of Judge Chuang's injunction.

In its most basic terms, Wall defended the President's Executive Order by repeating that once the President takes the oath of office, his actions are entitled to a "presumption of regularity," thus the judiciary should not inquire further regarding any motive.  Representing the plaintiffs, ACLU attorney Omar C. Jadwat was pressed on how the court should look beyond the four corners of the EO and how long any taint from animus should last. 

The oral argument is available on C-SPAN, with an official transcript from the court forthcoming.

 

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Next Monday, a panel of the Ninth Circuit will hear the appeal in Hawai'i v. Trump.

 

May 8, 2017 in Current Affairs, Establishment Clause, Executive Authority, First Amendment, Oral Argument Analysis, Religion | Permalink | Comments (0)

Wednesday, April 19, 2017

SCOTUS Hears Oral Arguments in Trinity Lutheran Church Free Exercise Challenge

The nine Justice Court heard oral arguments this morning in Trinity Lutheran Church of Columbia, Mo. v. Comer, involving a First Amendment Free Exercise Clause challenge to a denial of state funding that was based on Missouri's state constitutional provision prohibiting any state funds from being awarded to religious organizations. 

The state Department of Natural Resources had denied the grant application of Trinity Lutheran Church for funds to purchase of recycled tires to resurface its preschool playground.  The state officials had reasoned that supplying such funds would violate the state constitutional provision, a provision often called a Blaine Amendment, and which the attorney for Trinity Lutheran Church noted was often rooted in "anti-Catholic bigotry."  In upholding the Missouri denial of resources the Eighth Circuit had relied in part on Locke v. Davey (2004), in which "the Court upheld State of Washington statutes and constitutional provisions that barred public scholarship aid to post-secondary students pursuing a degree in theology."  For the Eighth Circuit, "while there is active academic and judicial debate about the breadth of the decision, we conclude that Locke" supported circuit precedent that foreclosed the challenge to the Missouri state constitutional provision.   

Locke v. Davey arose frequently in the argument. The attorney for the church argued that Locke's "play in the joints" was pertinent, but distinguished the program in Locke as being more inclusive of religion.  Justice Kennedy seemed to distinguish Locke v. Davey, stating that "this is quite different than Locke, because this is a status-based statute."  Later, Chief Justice Roberts broached Locke, in a colloquy with James Layton, representing Missouri, who argued that Locke was a closer case than the present one because here the state's money was a "direct payment" to the church rather a scholarship to a student as in Locke.  But Justice Kagan, evoking Locke, seemed troubled by Missouri's argument:

JUSTICE KAGAN: But here's the deal. You're right that this is a selective program. It's not a general program in which everybody gets money. But still the question is whether some people can be disentitled from applying to that program and from receiving that money if they are qualified based on other completely nonreligious attributes, and they're disqualified solely because they are a religious institution doing religious things. Even though they're not --they could --they could promise you, we're not going to do religious things on this playground surface, and you're still saying, well, no, you --you can't get the money.

Soon thereafter, Justice Kagan stated:

JUSTICE KAGAN: But I don't understand -I --I think I understand how the States' interests might differ some, but essentially this is a program open to everyone. Happens to be a competitive program, but everyone is open to compete on various neutral terms, and you're depriving one set of actors from being able to compete in the same way everybody else can compete because of their religious identification.

Layton, representing the State, also had his own status and the status of the litigation to discuss.

    [Sotomayor]:  Mr. Layton, I'm --I'm --I know the Court is very grateful that you took up the request of the Missouri Attorney General to defend the old position, but I --I am worried about the, if not the mootness, the adversity in this case. If the Attorney General is in favor of the position that your adversary is taking, isn't his appointment of you creating adversity that doesn't exist?
MR. LAYTON: Well, I don't know the answer to that --that, but let me --let me give some of the factual background here.
The Attorney General himself is recused because he actually appears on one of the briefs on the other side. The first assistant in this instance is the Acting Attorney General, and the Acting Attorney General, at a time before governor --the governor gave his new instruction, asked me to defend the position, because at that point, it was still the position of the State, and was not being disavowed.

JUSTICE SOTOMAYOR: Well, but that's the question. It doesn't appear to be the position of the State right now. Reading through the lines of the Acting Attorney General to us, it doesn't appear that he believes that you're taking the right position.

The problem of whether the case is moot because the Governor of Missouri announced this week a change of policy was the subject of a Court instruction to the attorneys to respond by letter regarding the issue.  It dominated very little of the discussion, but Chief Justice Roberts did ask this:

CHIEF JUSTICE ROBERTS: You --do you agree that this --this Court's voluntary cessation policies apply to the mootness question?
MR. LAYTON: I agree . . .

Justice Gorsuch, new to the bench this week, then brought the matter back to the substantive issue.

Whether or not the Court will dismiss the case or rule on the merits was not evident from the oral argument, although it did seem as if there was not much enthusiasm for Missouri's now-previous position that prevailed in the Eighth Circuit.

 

April 19, 2017 in Federalism, First Amendment, Free Exercise Clause, Oral Argument Analysis, Supreme Court (US) | Permalink | Comments (0)

Monday, February 27, 2017

Court Hears Oral Argument on Sex Offenders' First Amendment Right to Access Social Media

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?

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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?

(Laughter.)

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.

February 27, 2017 in First Amendment, Oral Argument Analysis, Speech | Permalink | Comments (0)

Tuesday, February 21, 2017

Court Leans Toward Agent in Cross-Border Shooting Case

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.

February 21, 2017 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Oral Argument Analysis, Separation of Powers | Permalink | Comments (1)

Thursday, January 19, 2017

Court Leans Toward Government in 9/11 Detainee Suit

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.

January 19, 2017 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Oral Argument Analysis | Permalink | Comments (0)

Wednesday, January 18, 2017

Court Hears Oral Arguments in Lee v. Tam, First Amendment Challenge to disparaging trademark ban

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?

STEWART: No.

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.

 

 

January 18, 2017 in First Amendment, Oral Argument Analysis, Race, Speech | Permalink | Comments (1)

Thursday, July 14, 2016

Daily Read: When Justices Scalia and Kennedy Referenced Donald Trump

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:

All right.

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

Not Much New in Oral Arguments in Contraceptive-Requirement Accommodation Case

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.

March 24, 2016 in Cases and Case Materials, News, Oral Argument Analysis, Religion | Permalink | Comments (0)

Wednesday, March 23, 2016

Argument Analysis: Court Splits on Viability of Bivens Claim After FTCA Dismissal

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.

March 23, 2016 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Oral Argument Analysis | Permalink | Comments (0)

Monday, March 21, 2016

Racial Redistricting, District Packing, and an Outsider's Interests in Reelection

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.

Our preview is here.

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.

March 21, 2016 in Cases and Case Materials, Elections and Voting, Equal Protection, Jurisdiction of Federal Courts, News, Oral Argument Analysis, Standing | Permalink | Comments (0)

Wednesday, March 2, 2016

Court Hears Oral Arguments on Texas' HB2 Abortion Restrictions

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.

March 2, 2016 in Abortion, Due Process (Substantive), Gender, Medical Decisions, Oral Argument Analysis, Sexuality | Permalink | Comments (1)