Tuesday, July 10, 2018

Daily Reads: SCOTUS Nominee Kavanaugh's First Statement and Men's Interest in Abortion

There is obviously much to read and discuss regarding the President's nomination of D.C. Circuit Judge Brett Kavanaugh but two pieces from the Washington Post today stand out.

Brett-kavanaughFirst, Aaron Blake considers Kavanaugh's comment, made immediately after thanking the president for the nomination, “No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination." Banks characterizes this statement as "thoroughly strange and quite possibly bogus." As Banks notes, it is a "completely unprovable assertion — and one that would require a basically unheard-of level of research to substantiate," although perhaps it is also "difficult, if not impossible, to disprove."  It seems, Banks concludes, a "thoroughly inauspicious way to begin your application to the nation's highest court, where you will be deciding the merits of the country's most important legal and factual claims."

Second, law professor Nancy Leong in her op-ed argues essentially that men need to enter the conversation surrounding abortion in a more honest manner: "Mathematically speaking, millions of men have such [abortion] stories. The one-in-four women who have had an abortion did not get pregnant on their own." Leong references the amicus brief by women attorneys regarding abortions as an effective communication with (soon to be former) Justice Kennedy and implies that a similar brief by men is long overdue.  "For decades, men have benefited from the availability of safe and legal abortion. It’s time for men to start taking threats to reproductive freedom personally." 

 

 

July 10, 2018 in Abortion, Courts and Judging, Supreme Court (US) | Permalink | Comments (0)

Monday, July 2, 2018

Daily Read: SCOTUS Justice Retirements and Political Goals

 In a recently updated and forthcoming article, Do Justices Time Their Retirements Politically? An Empirical Analysis of the Timing and Outcomes of Supreme Court Retirements in the Modern Era, by Christine Kexel Chabot (pictured) of Loyola-Chicago, she set out to explore whether or not Justices timed their retirements for political effect. 

Christine_chabotWith Kennedy's announced retirement, her empirical research of past retirements is quite relevant. She concludes:

Justices’ political retirement goals have often turned out to be wishful thinking. Some Justices found that they were relatively far removed from ideologies of party leaders (and potential successors) by the time they retired, and Justices who timed their retirements politically had limited success in obtaining like-minded replacements.

A fascinating read.

July 2, 2018 in Scholarship, Supreme Court (US) | Permalink | Comments (0)

Tuesday, June 26, 2018

Closely Divided SCOTUS Finds Trump "Travel Ban" Constitutional

In its opinion in Hawai'i v. Trump, a closely divided United States Supreme Court found that the so-called "travel ban" or "Muslim ban" did not violate the Establishment Clause. 

Recall that the Court granted certiorari to the Ninth Circuit's opinion in Hawai'i v. Trump regarding Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”of  September 24, 2017, also known as E.O 3, or Travel Ban 3.0, or Muslim Ban 3.0. The Ninth Circuit, affirming a district judge, found Travel Ban 3.0 unlawful under the Immigration and Nationality Act.  The Court also took certiorari on the Establishment Clause issue. There were also constitutional issues involving standing.

The Court's majority opinion, authored by Chief Justice Roberts, spends substantial space on the statutory issue, ultimately concluding that the Proclamation is within the President's authority under 8 U.S.C. §1182, a provision of the Immigration and Nationality Act.

On the constitutional issues, Chief Justice Roberts writing for the majority finds there is standing, but concludes that the Proclamation does not violate the Establishment Clause. The Court rehearses some of the President's statements regarding a "Muslim ban," but — in a passage which will be oft-quoted — states that

the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself.

In making this assessment, the majority, finds the statements essentially insignificant. The Court applies the rational basis standard derived from Kleindienst v. Mandel (1972) which the majority stated applies "across different contexts and constitutional claims" when considering Executive authority. Thus, according to the majority, as long as the Executive act "can reasonably be understood to result from a justification independent of unconstitutional grounds" it will be upheld. The majority briefly considered its equal protection cases involving animus (interestingly, the majority does not discuss McCreary County v. ACLU of Kentucky (2005), an Establishment Clause case involving intent),  but rejected the equal protection cases' applicability:

The Proclamation does not fit this pattern. It cannot be said that it is impossible to “discern a relationship to legitimate state interests” or that the policy is “inexplicable by anything but animus.”

Instead, the majority states that the Proclamation results from a worldwide review process (echoing the opening words of the Solicitor General at oral argument), and three "additional features" including removal of three nations since the first ban, significant exceptions, and a waiver process. 

Noteworthy in the majority is also its disavowal and essential overruling of Korematsu v. United States (1944), one of the so-called Japanese internment cases, and states that it is "wholly inapt to liken that morally repugnant order [in Korematsu] to a facially neutral policy denying certain foreign nationals the privilege of admission."

Four Justices dissented.  The dissenting opinion by Breyer, joined by Kagan, argues that the Proclamation's "elaborate system of exemptions and waivers" points to the conclusion that "religious animus" played a significant role in the Proclamation. Breyer recommended that the issue be remanded for further factfinding, but on balance, the evidence of antireligious bias was now sufficient to find the Proclamation unconstitutional.

The dissenting opinion by Sotomayor, joined by Ginsburg, devotes itself entirely to the Establishment Clause issue and concludes that the Proclamation, which "masquerades behind a facade of national-security concerns," is nevertheless motivated by anti-Muslim bias and "runs afoul of the Establishment Clause's guarantee of religious neutrality." Sotomyor's opinion critiques the majority for providing a "highly abridged account" of the President's public statements regarding Muslims that does not "tell even half the story," and provides almost seven pages of statements, tweets, and retweets, and also notes that "despite several opportunities to do so, President Trump has never disavowed any of his prior statements about Islam."

In addition to comparing this situation with Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993, in which the Court found unconstitutional the city's prohibition of animal sacrifice as motivated by bias against the Santeria religion, and Korematsu v. United States (1944), as discussed above,  Sotomayor's dissenting opinion stated:

Just weeks ago, the Court rendered its decision in Mas­terpiece Cakeshop,  which applied the bed­ rock principles of religious neutrality and tolerance in considering a First Amendment challenge to government action.  (“The Constitution ‘commits government itself to religious tolerance, and upon even slight suspicion that proposals for state inter­ vention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures’” (quoting Lukumi); Masterpiece(KAGAN, J., concurring) (“[S]tate actors cannot show hostility to religious views; rather, they must give those views ‘neutral and respectful consideration’ ”). Those principles should apply equally here. In both instances, the question is whether a gov­ernment actor exhibited tolerance and neutrality in reach­ing a decision that affects individuals’ fundamental reli­gious freedom. But unlike in Masterpiece, where a state civil rights commission was found to have acted without “the neutrality that the Free Exercise Clause requires,”  the government actors in this case will not be held accountable for breaching the First Amendment’s guarantee of religious neutrality and toler­ance. Unlike in Masterpiece, where the majority consid­ered the state commissioners’ statements about religion to be persuasive evidence of unconstitutional government action, the majority here completely sets aside the President’s charged statements about Muslims as irrelevant. That holding erodes the foundational principles of religious tolerance that the Court elsewhere has so emphatically protected, and it tells members of minority religions in our country “‘that they are outsiders, not full members of the political commu­nity.’ ”

[citations omitted].

The majority did not cite Masterpiece. Neither did Kennedy's brief concurring opinion which closed with what seemed to an  attempt at an admonition:

An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.

 

June 26, 2018 in Courts and Judging, Equal Protection, Executive Authority, First Amendment, Opinion Analysis, Religion, Supreme Court (US) | Permalink | Comments (0)

SCOTUS Finds California's FACT Act Violates First Amendment

In its closely divided opinion in  National Institute of Family and Life Advocates (NIFLA) v. Becerra, Justice Thomas writing for the Court found California's FACT Act regulating "crisis pregnancy centers" violates the First Amendment. 

Recall that the Ninth Circuit upheld the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act), which 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.

The majority's opinion found the regulations as to both the licensed and unlicensed pregnancy centers violated the First Amendment.

As to the required notice for licensed pregnancy centers, the majority found it was a content-based regulation subject to strict scrutiny under Reed v. Town of Gilbert (2015). The Court rejected the category of "professional speech," relied on by the Ninth Circuit, stating the "Court’s precedents do not recognize such a tradition for a category called “professional speech.”" However, the majority opinion recognized that the Court had  "afforded less protection for professional speech in two circumstances," but stated that neither "turned on the fact that professionals were speaking." First, citing Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985), the majority discussed the more deferential review accorded to laws that require professionals to disclose factual, noncontroversial information in their “commercial speech.”  However, the majority found Zauderer inapplicable because "the licensed notice is not limited to 'purely factual and uncontroversial information about the terms under which . . . services will be available."  "Instead, it requires these clinics to disclose information about state-sponsored services— including abortion, anything but an “uncontroversial” topic."  Second, citing Planned Parenthood of Southeastern Pa. v. Casey, the majority acknowledged that the Court had rejected a First Amendment challenge to a law requiring physicians to obtain informed consent before they could perform an abortion.The majority distinguished Casey, however stating that:

The licensed notice at issue here is not an informed- consent requirement or any other regulation of professional conduct. The notice does not facilitate informed consent to a medical procedure. In fact, it is not tied to a procedure at all. It applies to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought, offered, or performed.

The majority's opinion states that regulating medical speech is especially problematical given that "Throughout history, governments have “manipulat[ed] the content of doctor-patient discourse” to increase state power and suppress minorities, quoting language regarding the Chinese Cultural Revolution and Nazi Germany. 

Even if strict scrutiny did not apply, the majority stated that "the licensed notice cannot survive even intermediate scrutiny. California asserts a single interest to justify the licensed notice: providing low-income women with information about state-sponsored services. Assuming that this is a substantial state interest, the licensed notice is not sufficiently drawn to achieve it."

As to the unlicensed notice, the majority found that it did not survive even under Zauderer, because it was “unjustified or unduly burdensome.”

Even if California had presented a nonhypothetical justification for the unlicensed notice, the FACT Act unduly burdens protected speech. The unlicensed notice imposes a government-scripted, speaker-based disclosure requirement that is wholly disconnected from California’s informational interest. It requires covered facilities to post California’s precise notice, no matter what the facilities say on site or in their advertisements.

In a concurring opinion, Justice Kennedy, joined by Roberts, Alito, and Gorsuch, argued that the California law was viewpoint discrimination.

 

June 26, 2018 in Abortion, First Amendment, Speech, Supreme Court (US) | Permalink | Comments (0)

Monday, June 25, 2018

SCOTUS Remands Arlene's Flowers on Same-Sex Wedding Refusal

The Court, without opinion, in Arlene's Flowers v. Washington, granted the petition for writ of certiorari, vacated the judgment of the Washington Supreme Court, and remanded the case for consideration in light of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n.

Recall that in 2017 the Washington Supreme Court unanimously upheld the Washington Law Against Discrimination including sexual orientation as applied to a business that refused to provide wedding flowers for a same-sex wedding. Artlene's Flowers had several First Amendment claims and on the Free Exercise claim, the court rejected Arlene's Flowers' argument that the Washington ant-discrimination law was not a neutral one of general applicability and should therefore warrant strict scrutiny.  Instead, the court applied the rational basis standard of Employment Division, Department of Human Resources of Oregon v. Smith, which the Washington anti-discrimination easily passed. 

Philippe_de_Marlier_Nelkenstrauss_in_GlasvaseShortly after the Court's decision in Masterpiece Cakeshop, in which the Court found that the Colorado  Civil Rights Commission’s treatment of the case had "some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his [the cakemaker's] objection," the florist in Arlene's Flowers, Baronnelle Stutzman, filed a Supplemental Brief seeking "at least" remand and alleging:

in ruling against Barronelle, the state trial court—at the urging of Washington’s attorney general—compared Barronelle to a racist “owner of a 7-Eleven store” who had “a policy” of refusing “to serve any black[]” customers. Pet. App. 107a–109a & 108a n.16 (emphasis added). The state, in short, has treated Barronelle with neither tolerance nor respect.

Thus the Washington Supreme Court is now tasked with determining whether there was hostility towards the Arlene's Flowers woner's religion, and if so, applying strict scrutiny.

Relatedly, in a challenge to Arizona's non-discrimination statute by a company, Brush & Nib, that sells "pre-fabricated and design artwork for home décor, weddings, and special events," an Arizona Court of Appeals found that there would be no Free Exercise claim in its opinion in Brush & Nib Studio v. City of Phoenix. Yet because Brush & Nib was a pre-enforcement challenge, the emphasis was on the statute rather than on Brush & Nib's actions.

 

 

June 25, 2018 in Courts and Judging, First Amendment, Free Exercise Clause, Fundamental Rights, Opinion Analysis, Recent Cases, Religion, Supreme Court (US) | Permalink | Comments (0)

Closely Divided SCOTUS Decides Texas Racial Gerrymander in Favor of Texas

In its 5-4 opinion in Abbott v. Perez, regarding the constitutionality under the Equal Protection Clause and the validity under the Voting Rights Act of the redistricting plan enacted by the Texas Legislature in 2013, the Court's majority decision by Justice Alito concluded that only one district in the redistricting plan was unlawful.

Both the majority opinion (joined by the Chief Justice, Kennedy, Thomas, and Gorusch) and the dissenting opinion by Justice Sotomayor (joined by Ginsburg, Breyer, and Kagan) first spent substantial effort on the jurisdictional issue which had also preoccupied the Court during the oral arguments. The jurisdictional question involves the status of the three judge court order and whether it is actually a reviewable order with the majority concluding it was reviewable and the dissent arguing it was not.

On the merits of the Equal Protection Clause issue Justice Alito's opinion for the Court faulted the three judge court's detailed decision for committing a "fundamental legal error" when it concluded the Texas legislature engaged on intentional racial discrimination violating the Fourteenth Amendment.  For the majority, the three judge court did not recognize that when "a challenger claims that a state law was enacted with discriminatory intent, the burden of proof lies with the challenger, not the State," a standard with "special significance" in redistricting cases in which there is a "presumption of legislative good faith." This standard, the Court emphasized, does not change when there has been past racial discrimination but remains only one of the factors of showing intent under Village of Arlington Heights v. Metro. Housing Development Corp. (1997). Instead, the majority finds that Texas did have a legitimate intent, that of bringing the litigation about the redistricting to an end.

The dissenting opinion on the Equal Protection Clause issue criticizes the majority for selectively misreading (and misquoting) the three judge court opinion, arguing that the three judge court did not remove the burden from the challengers and did rigorously apply the Arlington Heights factors (contending that the majority did not). The "historical background" factor is an evidentiary source of intent which the majority recognized but did not credit, essentially substituting its own judgment for the three judge court.

On the Voting Rights Act (VRA) issue, which is limited to §2 given that the United States Supreme Court held §5 unconstitutional in Shelby County v. Holder, decided five years ago, the majority discussed the factors from Thornburg v. Gingles (1986), and essentially found that only one district — HD90 —was an impermissible racial gerrymander.  A brief concurring opinion by Thomas, joined by Gorsuch, argued that §2 should not apply to redistricting. Again, the dissent argued that on the other districts the majority was essentially substituting its own judgment for that of the three judge court rather than reviewing the factual findings only for clear error.

The difference in the rhetorical approaches of the majority and the dissent is striking. In Alito's opinion for the Court, federal the application of the Equal Protection Clause in redistricting is "complicated," equal protection and the VRA pull in opposite directions, and in "technical terms" the Court has assumed that complying with the VRA is a compelling state interest. In Sotomayor's opinion for the dissenting Justices, the "Equal Protection Clause of the Fourteenth Amendment and §2 of the Voting Rights Act secure for all voters in our country, regardless of race, the right to equal participation in our political processes," a "fundamental right" which courts should remain vigilant in protecting including "curbing States’ efforts to undermine the ability of minority voters to meaningfully exercise that right." 

  Texas_counties_map

 

 

June 25, 2018 in Courts and Judging, Equal Protection, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Supreme Court (US) | Permalink | Comments (0)

Monday, June 18, 2018

SCOTUS Dodges Partisan Gerrymandering Challenges in Gill and Benisek

In its opinion in Gill v. Whitford involving a challenge to Wisconsin's alleged partisan gerrymandering the Court, in an opinion by Chief Justice Roberts, with a concurring opinion by Justice Kagan (joined by Justices Ginsburg, Breyer, and Sotomayor), found that the plaintiffs did not prove sufficient Article III standing to sustain the relief granted in the divided decision by the three judge court.  Additionally, in a per curiam opinion in Benisek v. Lamone, involving a challenge to alleged political gerrymandering in Maryland, the Court declined to disturb the three judge court's decision not to grant to a preliminary injunction.

Chief Justice Roberts' opinion for the Court in Gill admits that

Over the past five decades this Court has been repeat­edly asked to decide what judicially enforceable limits, if any, the Constitution sets on the gerrymandering of voters along partisan lines. Our previous attempts at an answer have left few clear landmarks for addressing the question.

The  Chief Justice's Gill opinion does little, if anything, to remedy this lack of "landmarks" in the doctrine. However, the Chief Justice's opinion continues that the Court's "efforts to sort through those considerations have generated conflict­ing views both of how to conceive of the injury arising from partisan gerrymandering and of the appropriate role for the Federal Judiciary in remedying that injury" and it is this set of "conflicting views" that the Chief Justice's opinion sets out to resolve. The 1024px-The_Gerry-Mander_Editresolution seems simple: to the extent that plaintiffs' "alleged harm is the dilution of their votes" in violation of the Equal Protection Clause, "that injury is district specific." In sum, the injury must be an individual one that arises from an individual's vote being diluted by the voter's placement in a "cracked" or "packed" district.  The Chief Justice's opinion concludes that while the individual plaintiffs had "pleaded a particularized burden along such lines," they failed to prove those facts at trial.

Yet this simplicity is less straightforward when combined with Justice Kagan's concurring opinion, which correctly notes that in addition to the Equal Protection Clause claim of vote dilution, "at some points in this litigation, the plaintiffs complained of a different injury — an infringement of their First Amendment right of association." [Indeed, the opinion for the three judge court seems to combine the equal protection and First Amendment claims.] On the First Amendment claim, Kagan writes:

when the harm alleged is not district specific, the proof needed for standing should not be district specific either. And the associational injury flowing from a statewide partisan gerrymander, whether alleged by a party member or the party itself, has nothing to do with the packing or cracking of any single district’s lines. The complaint in such a case is instead that the gerrymander has burdened the ability of like-minded people across the State to affiliate in a political party and carry out that organization’s activities and objects. Because a plaintiff can have that complaint without living in a packed or cracked district, she need not show what the Court demands today for a vote dilution claim. Or said otherwise: Because on this alternative theory, the valued association and the injury to it are statewide, so too is the relevant standing requirement.

Moreover, even on the equal protection vote dilution claim, Kagan's opinion instructs that the Court's determination of remand rather than dismissal means that

the plaintiffs—both the four who initially made those assertions and any others (current or newly joined)—now can introduce evidence that their individual districts were packed or cracked. And if the plaintiffs’ more general charges have a basis in fact, that evidence may well be at hand. Recall that the plaintiffs here al­leged—and the District Court found —that a unified Republican government set out to ensure that Republicans would control as many State Assembly seats as possible over a decade (five consecutive election cycles). To that end, the gov­ernment allegedly packed and cracked Democrats throughout the State, not just in a particular district (see, e.g., Benisek v. Lamone) or region. Assuming that is true, the plaintiffs should have a mass of packing and cracking proof, which they can now also present in district-by-district form to support their standing. In other words, a plaintiff residing in each affected district can show, through an alternative map or other evidence, that packing or cracking indeed occurred there.

 [emphasis added].  The Court remanded and declined to "direct dismissal" given that this "is not the usual case" because the it "concerns an unsettled kind of claim," the "contours and justiciability of which are unresolved." Justice Thomas, joined by Justice Gorsuch, wrote separately to disagree with the remand, arguing there is "nothing unusual" about the case and that the matter should be dismissed.

In the five page per curiam opinion in Benisek v. Lamone, the Court declined to disturb the three judge court's denial of a motion for preliminary injunction. Seemingly without irony, the Court noted that one rationale for the three judge court's denial of a preliminary injunction was its concern about assessing the merits of the partisan gerrymandering claim and its prediction it would be "better equipped to make that legal determination and to chart a wise course" after the United States Supreme Court issued its decision in Gill. However, the per curiam opinion of the Court also reasoned that even if the plaintiffs were likely to succeed on the merits, the  other factors in a preliminary injunction decision including the balance of equities and the public interest "tilted against" the issuance of a preliminary injunction.

In sum, the decisions in Gill and Benisek leave the constitutionality of partisan gerrymandering as unsettled as before.

[image: "the gerrymander" via]

 

June 18, 2018 in Association, Elections and Voting, Equal Protection, First Amendment, Fourteenth Amendment, Opinion Analysis, Reconstruction Era Amendments, Standing, Supreme Court (US) | Permalink | Comments (0)

Thursday, June 14, 2018

SCOTUS Rules Minnesota's Restriction on Voters' Political Apparel Violates First Amendment

In its opinion in Minnesota Voters Alliance v. Mansky, the Court held that a provision of a Minnesota law regulating voters' political attire violates the First Amendment. Recall from our preview that  Minn. Stat. §211B.11, entitled "Soliciting near polling places," 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 Court's majority opinion, by Chief Justice Roberts, finds that the "polling place" on election day constitutes a nonpublic forum under the First Amendment; it is "government- controlled property set aside for the sole purpose of voting" and is a "special enclave, subject to greater restriction." The question as phrased by the Court was therefore whether "Minnesota’s ban on political apparel is 'reasonable in light of the purpose served by the forum': voting."  As in the oral argument, the Court considered 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.

Analogizing to Burson, the Court upheld Minnesota's objective in prohibiting voters from wearing particular kinds of expressive apparel or accessories while inside the polling place.

[W]e see no basis for rejecting Minnesota’s determination that some forms of advocacy should be excluded from the polling place, to set it aside as “an island of calm in which voters can peacefully contemplate their choices.” Brief for Respondents 43. Casting a vote is a weighty civic act, akin to a jury’s return of a verdict, or a representative’s vote on a piece of legislation. It is a time for choosing, not campaigning. The State may reasonably decide that the interior of the polling place should reflect that distinction.

However, the Court found that the Minnesota statute failed to satisfy the reasonable standard in the means chosen to achieve its goal: "the unmoored use of the term 'political' in the Minnesota law, combined with haphazard interpretations the State has provided in official guidance and representations to this Court, cause Minnesota’s restriction to fail even this forgiving test." The Court found "political" far too broad (citing dictionary definitions) and likewise found that "issue oriented material" was also too broad (" A rule whose fair enforcement requires an election judge to maintain a mental index of the platforms and positions of every candidate and party on the ballot is not reason- able. Candidates for statewide and federal office and major political parties can be expected to take positions on a wide array of subjects of local and national import.") 

However, the Court gestured toward acceptable means chosen:

That is not to say that Minnesota has set upon an impossible task. Other States have laws proscribing displays (including apparel) in more lucid terms. See, e.g., Cal. Elec. Code Ann. §319.5 (West Cum. Supp. 2018) (prohibiting “the visible display . . . of information that advocates for or against any candidate or measure,” including the “display of a candidate’s name, likeness, or logo,” the “display of a ballot measure’s number, title, subject, or logo,” and “[b]uttons, hats,” or “shirts” containing such information); Tex. Elec. Code Ann. §61.010(a) (West 2010) (prohibiting the wearing of “a badge, insignia, emblem, or other similar communicative device relating to a candidate, measure, or political party appearing on the ballot, or to the conduct of the election”). We do not suggest that such provisions set the outer limit of what a State may proscribe, and do not pass on the constitutionality of laws that are not before us. But we do hold that if a State wishes to set its polling places apart as areas free of partisan discord, it must employ a more discernible approach.

The appendix lists thirty-four states prohibiting accessories or apparel in the polling place.

Dissenting, Justice Sotomayor, joined by Justice Breyer, would have certified the issue of the interpretation of the statute to the Minnesota Supreme Court. The Court, in footnote 7, explained its decision not to certify, including that the request came "late in the day," but Sotomayor argued that "certification is not an argument subject to forfeiture by the parties" and is instead a matter of comity. Moreover, she contended that having an interpretation of the statute, including the term "political" (which she noted the Court had "little difficulty discerning its meaning in the context of [other] statutes subject to First Amendment challenges, citing cases), would "obviate the hypothetical line-drawing problems that form the basis of the Court’s decision today."

Thus, the import of Minnesota Voters Alliance v. Mansky is that states can prohibit certain expressive apparel and accessories at the polling place on election day, but the courts must find the statutory definitions sufficiently defined as to be "reasonable." 

US_presidential_election_badges

June 14, 2018 in Elections and Voting, Federalism, First Amendment, Opinion Analysis, Supreme Court (US) | Permalink | Comments (0)

Wednesday, April 25, 2018

SCOTUS Hears Oral Arguments in Travel Ban Case

The Court heard oral arguments in Trump v. Hawai'i, releasing same-day audio in the case in recognition of its importance. Recall that the Court granted certiorari to the Ninth Circuit's opinion in Hawai'i v. Trump regarding Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”of  September 24, 2017, also known as E.O 3, or Travel Ban 3.0, or Muslim Ban 3.0. The Ninth Circuit, affirming a district judge, found Travel Ban 3.0 unlawful under the Immigration and Nationality Act.  The Court also took certiorari on the Establishment Clause issue. There were also constitutional issues involves standing.

Arguing for the United States and President Trump, Solicitor General Noel Francisco opened and repeatedly stressed that E.O. 3 was the result of a "worldwide multi-agency review." Yet the person of President Trump was a definite, if at times implicit, presence in the argument. For example, during the Solicitor General's argument Justice Kagan posed a hypothetical:

So this is a hypothetical that you've heard a variant of  before that the government has, at any rate,  but I want to just give you. 

So let's say in some future time a -­a President gets elected who is a vehement anti-Semite and says all kinds of denigrating comments about Jews and provokes a lot of resentment and hatred over the course of a campaign and in his presidency and, in course of that, asks his staff or his cabinet members to issue a proc -- to issue recommendations so that he can issue a proclamation of this kind, and they dot all the  i's and they cross all the t's.

And what emerges -- and, again, in the context of this virulent anti-Semitism – what emerges is a proclamation that says no one shall enter from Israel. 

**** “this is a out-of-the-box kind of President in my hypothetical.  And –

(Laughter)

**** And -- and who knows what his heart of hearts is.  I mean, I take that point.  But the question is not really what his heart of hearts is.  The question is what are reasonable observers to think -­

This discussion takes place in the context of whether the deferential standard of Kleindienst v. Mandel (1972) should apply, but also applies to the Establishment Clause problem of whether the EO has a secular purpose under McCreary County v. ACLU of Kentucky (2005).

Belber_SuitcaseArguing for Hawai'i, Neal Katyal stated that Hawai'i did not rely on any campaign statements for intent, but only presidential statements, citing the President's "tweeting of these three virulent anti-Muslim videos" after the present EO was issued, and the presidential spokesperson being asked to explain these retweets saying, according to Katyal's argument, "The President has spoken about exactly this in the proclamation."

Chief Justice Roberts asked whether the taint of any presidential statements "applies forever."  Katyal stressed that the President had not disavowed the statements or moved away from them. 

Justice Breyer, among others, seemed concerned that the exceptions in the policy remained opaque, but Alito flatly stated that "it does not look at all like a Muslim ban."

Predicting outcomes from oral arguments is always a dubious enterprise, but this is undoubtedly a close case. Additionally, the Chief Justice's appearance at the President's State Dinner the evening before oral arguments has caused some to question his impartiality, or, at least the appearance of impartiality.

[image via]

 

April 25, 2018 in Cases and Case Materials, Congressional Authority, Establishment Clause, Executive Authority, First Amendment, Oral Argument Analysis, Supreme Court (US) | Permalink | Comments (0)

Tuesday, April 24, 2018

SCOTUS Hears Oral Arguments in Texas Redistricting Case Abbott v. Perez

The United States Supreme Court heard oral arguments in Abbott v. Perez, regarding the constitutionality under the Equal Protection Clause and the validity under the Voting Rights Act of the redistricting plan enacted by the Texas Legislature in 2013.  Recall that in an extensive opinion in August 2017,  the three judge court made detailed findings, one of which was that the Texas legislature engaged on intentional racial discrimination violating the Fourteenth Amendment.

Much of the argument centered on the acts of the Texas legislature in 2013 adopting maps which had previously been found invalid because of racial discrimination. Arguing for Texas, Scott Keller, the Texas Solicitor General, argued that the Texas legislature was entitled to a presumption of good faith and that the "taint" did not carry forward, and Edwin Kneedler, from the United States Solicitor General's Office, likewise stressed that the "taint" should not carry forward. Arguing for various challengers to the redistricting, Max Hicks and Allison Riggs, both stressed the standard of Village of Arlington Heights v. Metro. Hous. Dev. Corp. (1997), contending that the taint does not end, and stressing the extensive findings by the three judge court.

The question of how long a discriminatory intent taint persists sometimes seemed as if it was a preview of the next oral argument, that in Hawai'i v. Trump.

Map_of_Texas_1718Yet the oral arguments in Abbott v. Perez were also preoccupied with the "jurisdictional" question; Chief Justice Roberts at several points directed the parties to move to the merits.  This jurisdictional question involves the status of the three judge court order and whether it is actually a reviewable order. Recall that the order was not a preliminary injunction, but instead the court directed the Texas Attorney General to provide a "written advisory within three business days stating whether the Legislature intends to take up redistricting in an effort to cure these violations and, if so, when the matter will be considered." Justice Breyer suggested that the operable "piece of paper" in the case was not a judgment or preliminary injunction, but only a direction to come to court.

While jurisdictional issues are always important to the Court, when the jurisdiction involves appeals as of right from three judge court decisions, the stakes are higher in terms of workload. As Justice Sotomayor asked, what distinguishes this case from the  "millions of others - - - not millions, I'm exaggerating greatly - - - the hundreds of these . . . ." 

 

 

April 24, 2018 in Courts and Judging, Elections and Voting, Equal Protection, Fourteenth Amendment, Oral Argument Analysis, Race, Recent Cases, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0)

Tuesday, April 17, 2018

SCOTUS Finds INA Deportation Provision for "Crime of Violence" Unconstitutionally Vague

In its opinion in Sessions v. Dimaya, the United States Supreme Court held that a portion of the definition of "crime of violence" in 18 U.S.C. §1, as applied in the deportation scheme of the Immigration and Nationality Act,  see 8 U. S. C. §§1227(a)(2)(A)(iii), 1229b(a)(3), (b)(1)(C), is unconstitutionally vague.

The Court's somewhat fractured opinion concluded that the residual clause, §16(b), which defines a “crime of violence” as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense" is unconstitutionally vague.

Justice Kagan's opinion was joined in its entirety by Justices Ginsburg, Breyer, and Sotomayor. Justice Gorsuch joined only Parts I, III, IV–B, and V, thus making these sections the opinion of the Court.

The Court's opinion relied on Johnson v. United States (2015), authored by Justice Scalia, in which the Court found a similar residual clause in the Armed Career Criminal Act (ACCA), defining “violent felony” as any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” 18 U. S. C. §924(e)(2)(B) unconstitutionally “void for vagueness” under the Fifth Amendment’s Due Process Clause.

The Court in Dimaya ruled that

§16(b) has the same “[t]wo features” that “conspire[d] to make [ACCA’s residual clause] unconstitutionally vague" {in Johnson}.  It too “requires a court to picture the kind of conduct that the crime involves in ‘the ordinary case,’ and to judge whether that abstraction presents” some not-well-specified-yet-sufficiently- large degree of risk. The result is that §16(b) produces, just as ACCA’s residual clause did, “more unpredictability and arbitrariness than the Due Process Clause tolerates.”

The United States and the dissenting opinions attempted to distinguish the INA provision from the ACCA provision in several ways. Kagan, writing for the Court in Part IV that "each turns out to be the proverbial distinction without a difference." 

34033716420_bd72e5fd56_zGiven Gorsuch's joining with the perceived more liberal-leaning Justices on the Court, his concurring opinion is sure to attract attention.  Gorsuch's substantial opinion (18 textual pages to Kagan's 25 page opinion for the Court and plurality), leans heavily on the foundations of due process, beginning

Vague laws invite arbitrary power. Before the Revolu­tion, the crime of treason in English law was so capa­ciously construed that the mere expression of disfavored opinions could invite transportation or death.

More importantly, Gorsuch disavows any notion that the context of immigration deportation merits any special consideration and that the Court's holding is narrow, stressing that the problem with the statute is the procedural one of failing to provide notice (and standards for judges) rather than the substantive choice by Congress.

Taken together with Johnson, the holding in Dimaya means that statutes must be much more precise when defining a "crime of violence" or risk being held unconstitutionally vague.

[image: caricature of Justice Neil Gorsuch by Donkey Hotey via]

April 17, 2018 in Courts and Judging, Criminal Procedure, Due Process (Substantive), Fifth Amendment, Interpretation, Opinion Analysis, Procedural Due Process, Recent Cases, Supreme Court (US) | Permalink | Comments (0)

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

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)

Thursday, February 15, 2018

Fourth Circuit En Banc Affirms Injunction Against Trump's Travel Ban 3.0

In its 285 page opinions in IRAP v. Trump, the Fourth Circuit en banc majority has found that the so-called Travel Ban 3.0,  Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”of  September 24, 2017, is essentially intended as a Muslim Ban and thus there is a likelihood of success on the merits of the First Amendment Establishment Clause challenge meriting a preliminary injunction. 

The majority is composed of nine judges, with four judges (including a Senior Judge) dissenting. Some judges in the majority also wrote concurring opinions that would also grant relief on the statutory claims.

Recall that in October, Maryland District Judge Theodore Chuang has issued a nationwide injunction against the so-called "Muslim Ban 3.0" in an almost 100 page opinion, shortly after Hawai'i District Judge Derrick Watson had issued a nationwide injunction based largely on statutory grounds, which the Ninth Circuit affirmed. 

Recall also that SCOTUS granted certiorari to the Ninth Circuit's opinion, adding the Establishment Clause issue to the questions to be considered.  Most likely this case will be added to the SCOTUS docket.

The majority opinion by Chief Judge Gregory, after setting out the litigation history and preliminary injunction standard, delves into the Establishment Clause issue. Chief Judge Gregory begins by finding both that there is standing and that the case is ripe.

On the merits, Chief Judge Gregory's opinion first considers whether the proffered reason for the government act is "facially legitimate and bona fide" under Kleindienst v. Mandel (1972). The court assumes without deciding that the reason is facially legitimate, but holds that it is not bona fide:

here the Government’s proffered rationale for the Proclamation lies at odds with the statements of the President himself. Plaintiffs here do not just plausibly allege with particularity that the Proclamation’s purpose is driven by anti-Muslim bias, they offer undisputed evidence of such bias: the words of the President. This evidence includes President Trump’s disparaging comments and tweets regarding Muslims; his repeated proposals to ban Muslims from entering the United States; his subsequent explanation that he would effectuate this “Muslim” ban by targeting “territories” instead of Muslims directly; the issuance of EO-1 and EO-2, addressed only to majority-Muslim nations; and finally the issuance of the Proclamation, which not only closely tracks EO-1 and EO-2, but which President Trump and his advisors described as having the same goal as EO-1 and EO-2.

The President’s own words—publicly stating a constitutionally impermissible reason for the Proclamation—distinguish this case from those in which courts have found that the Government had satisfied Mandel’s “bona fide” prong.

Chief Judge Gregory then found that the Travel Ban 3.0 failed the Lemon v. Kurtzman (1971) test which requires the government to show that its challenged action has a primary secular legislative purpose, and then, even if it does that its principal or primary effect neither advances nor inhibits religion and which does not foster ‘an excessive government entanglement with religion. Chief Judge Gregory's majority opinion concludes that Travel Ban 3.0 did not have a primary secular purpose but, like its previous incarnations, was motivated by anti-Muslim bias. Chief Judge Gregory noted the government's argument to disregard the President's pre-election statements was a difficult one to make, but stated it did not need to rely on any campaign statements "because the President’s inauguration did not herald a new day."

Among the incidents Chief Judge Gregory recounts is this one from November 28, 2017 (after the Travel Ban 3.0 September 24, 2017 Proclamation):

President Trump retweeted three disturbing anti-Muslim videos entitled: “Muslim Destroys a Statue of Virgin Mary!” “Islamist mob pushes teenage boy off roof and beats him to death!” and “Muslim migrant beats up Dutch boy on crutches!” The three videos were originally tweeted by an extremist political party whose mission is to oppose “all alien and destructive politic or religious doctrines, including . . . Islam.” When asked about the three videos, President Trump’s deputy press secretary Raj Shah responded by saying that the “President has been talking about these security issues for years now, from the campaign trail to the White House” and “the President has addressed these issues with the travel order that he issued earlier this year and the companion proclamation.” The Government does not—and, indeed, cannot—dispute that the President made these statements.

 Thus, the question of how long a "taint" of impermissible motive should persist was acknowledged and then quickly dispatched: "President Trump could have removed the taint of his prior troubling statements; for a start he could have ceased publicly disparaging Muslims." Moreover, the government initially relied on the months-long agency review to remove the taint, but

chose not to make the review publicly available and so provided a reasonable observer no basis to rely on the review. Perhaps in recognition of this, at oral argument before us the Government expressly disavowed any claim that the review could save the Proclamation. Instead, the Government conceded that the Proclamation rises and falls on its own four corners.

For the majority, then,

The contradiction between what the Proclamation says—that it merely reflects the results of a religion-neutral review—and what it does “raises serious doubts” about the Proclamation’s proffered purpose, and undermines the Government’s argument that its multi-agency review cured any earlier impermissible religious purpose.

Chief Judge Gregory's majority opinion summed up its reasoning:

Our constitutional system creates a strong presumption of legitimacy for presidential action and we often defer to the political branches on issues related to immigration and national security. But the disposition in this case is compelled by the highly unusual facts here. Plaintiffs offer undisputed evidence that the President of the United States has openly and often expressed his desire to ban those of Islamic faith from entering the United States. The Proclamation is thus not only a likely Establishment Clause violation, but also strikes at the basic notion that the government may not act based on “religious animosity.”

Finally, on the scope of the injunction, the majority opinion arguably broadened it:

To the extent that the district court held that IRAP, HIAS, and similar organizations categorically lack a qualifying bona fide relationship with their clients, we conclude that this would be an abuse of discretion. We see no need to read more into the Supreme Court’s grant of a stay than what it held: that refugees with formal assurances do not categorically enjoy a bona fide relationship with a U.S. entity. Instead, IRAP, HIAS, and other organizations that work with refugees or take on clients are subject to the same requirements as all other entities under the Supreme Court’s bona fide relationship standard: a relationship that is “formal, documented, and formed in the ordinary course, rather than for the purpose” of evading the travel restrictions imposed by the Proclamation.

Nevertheless, the Fourth Circuit stayed its decision, in light of the Supreme Court’s order staying the district judge's injunction pending “disposition of the Government’s petition for a writ of certiorari, if such writ is sought."

 

February 15, 2018 in Courts and Judging, Establishment Clause, Executive Authority, First Amendment, Opinion Analysis, Recent Cases, Religion, Supreme Court (US) | Permalink | Comments (0)

Tuesday, January 23, 2018

Daily Video: Watch Justice Ginsburg Talk About Her Career and #MeToo

 Worth a watch is a 90 minute video discussion by Justice Ruth Bader Ginsburg being interviewed by Nina Tottenburg.

Noteworthy are Ginsburg's comments about sexual harassment by a male professor, her reactions to the #MeToo phenomenon, and her responses to her own icon status.

 

 

 

January 23, 2018 in Gender, Supreme Court (US) | Permalink | Comments (0)

Friday, January 19, 2018

SCOTUS to Hear Trump v. Hawai'i on Travel Ban 3.0

The United States Supreme Court has granted the Trump Administration's petition for certiorari to the Ninth Circuit's opinion in Hawai'i v. Trump regarding Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”of  September 24, 2017, also known as Travel Ban 3.0, or Muslim Ban 3.0. The Ninth Circuit, affirming a district judge, found Travel Ban 3.0 unlawful under the Immigration and Nationality Act. 

The United States Supreme Court will also be considering the Establishment Clause issue. Recall that the Ninth Circuit did not reach the Establishment Clause issue. However, the United States Supreme Court's grant of certiorari states that the parties are directed to brief and argue Question 3 presented by the opposition brief of Hawai'i.  That question presented is simply phrased: "Whether Proclamation 9645 violates the Establishment Clause."

Recall that the United States Supreme Court previously granted certiorari in Hawai'i v. Trump, as well as IRAP v. Trump from the Fourth Circuit regarding Travel Ban 2.0, but then remanded the cases to be dismissed as moot when that Executive Order was replaced by the current incarnation.

Africa-mapOne important issue in the Establishment Clause litigation is whether the travel ban "targets" a particular religion. Somewhat similarly, an important issue under the Immigration and Nationality Act is whether the travel ban constitutes "nationality discrimination."

These issues have involved consideration of whether the "taint" of statements from candidate Trump and President Trump during the earliest days of the Administration would continue to be viable to this third iteration of the travel ban. It is also likely that much more recent statements allegedly made by the President regarding immigration will be raised.


 

 

 

January 19, 2018 in Executive Authority, Family, First Amendment, Race, Recent Cases, Religion, Supreme Court (US), Travel | Permalink | Comments (0)

SCOTUS Stays North Carolina Redistricting Order

 The United States Supreme Court granted the application of a stay by North Carolina in Rucho v. Common Cause pending appeal of the three judge court decision. Justices Ginsburg and Sotomayor would have denied the stay.

Recall that a three judge court decision on January 9 gave North Carolina until January 29 to submit a new redistricting plan to the Court after finding that North Carolina's 2016 redistricting plan was unconstitutional partisan gerrymandering under the Equal Protection Clause, the First Amendment, and Article I §§ 2, 4.

Now Common Cause joins the other partisan gerrymandering cases before the Court: Recall that the United States Supreme Court heard oral arguments on the issue of partisan gerrymandering in Gill v. Whitford in the earliest days of this Term.  Recall also that in early December, the United States Supreme Court added another partisan gerrymandering case to its docket, Benisek v. Lamone. 

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January 19, 2018 in Elections and Voting, Equal Protection, First Amendment, Supremacy Clause, 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)