Friday, April 8, 2016
In a brief per curiam opinion, a panel of the First Circuit essentially reversed the ruling of Senior United States District Judge for the District of Puerto Rico Juan Perez-Gimenez that denied the joint motion for summary judgment in Conde-Vidal v. Garcia-Padilla regarding a challenge to Puerto Rico's same-sex marriage ban.
The panel stated:
The district court's ruling errs in so many respects that it is hard to know where to begin. The constitutional rights at issue here are the rights to due process and equal protection, as protected by both the Fourteenth and Fifth Amendments to the United States Constitution. Obergefell v. Hodges; United States v. Windsor. Those rights have already been incorporated as to Puerto Rico. Examining Bd. Of Eng'rs, Architects & Surveyors v. Flores de Otero (1976). And even if they had not, then the district court would have been able to decide whether they should be. See Flores de Otero.
In any event, for present purposes we need not gild the lily. Our prior mandate was clear . . .
[citations and footnote omitted].
After quoting its previous opinion, the panel then addressed the procedural posture of the case, noting that the district court "compounded its error (and signaled a lack of confidence in its actions), by failing to enter a final judgment to enable an appeal in ordinary course." Both parties therefore sought a writ of mandamus, which the court granted and additionally "remitted" the case to the district court "to be assigned randomly by the clerk to a different judge to enter judgment in favor of the Petitioners promptly, and to conduct any further proceedings necessary in this action."
The First Circuit did not explicitly discuss the district judge's conclusions regarding Puerto Rico's status and his argument that under The Insular Cases (1901), territorial incorporation of specific rights is questionable. But the First Circuit did cite contrary authority and made clear its disagreement. The intensity of the disagreement is also made evident by the First Circuit's somewhat unusual instruction that Senior United States District Judge for the District of Puerto Rico Juan Perez-Gimenez be removed from the case.
April 8, 2016 in Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, Interpretation, Opinion Analysis, Sexual Orientation, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0)
Wednesday, March 16, 2016
Merrick Garland, the chief judge on the U.S. Court of Appeals for the D.C. Circuit is Obama's nominee.
The New Yorker analyzes Garland as a "sensible choice."
NPR says "Reputation Of Collegiality, Record Of Republican Support."
First Amendment ConLawProfs might note that Garland was in the majority in American Meat Institute v. U.S. Department of Agriculture. Also of note is that he was part of the panel that decided that there was no clearly established right not to be tasered during a protest under the First, as well as Fourth, Amendment in Lash v. Lemke.
Progressive groups will fall in line, and deeply respect Garland and the President’s choice, but their actual disappointment will be deep.— SCOTUSblog (@SCOTUSblog) March 16, 2016
Wednesday, March 9, 2016
In a 10 page opinion, Senior United States District Judge for the District of Puerto Rico Juan Perez-Gimenez denied the joint motion for summary judgment in Conde-Vidal v. Garcia-Padilla regarding a challenge to Puerto Rico's same-sex marriage ban.
Recall that in October 2104, Judge Juan Perez-Gimenez had largely relied upon Baker v. Nelson, the United States Supreme Court's 1972 dismissal of a same-sex marriage ban challenge "for want of substantial federal question" to find that there was no constitutional right to same-sex marriage. In the appeal to the First Circuit, the Solicitor General of Puerto Rico decided that it would not defend the same-sex marriage ban. And then the United States Supreme Court held in Obergefell v. Hodges that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples.
The First Circuit thus remanded Conde-Vidal v. Garcia-Padilla to Judge Juan Perez-Gimenez "for further consideration in light of Obergefell v. Hodges" and specifically stated "We agree with the parties' joint position that the ban is unconstitutional." The parties submitted a Joint Motion for Entry of Judgment with a proposed order.
In rejecting the parties' joint motion, Judge Juan Perez-Gimenez contended that because Puerto Rico was a "stranger to the proceedings" in Obergefell which involved same-sex marriage bans in the Sixth Circuit (Michigan, Kentucky, Ohio, and Tennessee), it was not bound by the decision. This reasoning is similar to some of the arguments most recently raised by some Justices on the Supreme Court of Alabama.
Additionally - - - and perhaps with more legal grounding - - - he concluded that Obergefell does not apply to Puerto Rico because it is not a "state":
the fundamental right to marry, as recognized by the Supreme Court in Obergefell, has not been incorporated to the juridical reality of Puerto Rico.
The judge based this "juridical reality" on his conclusion that the doctrine of selective incorporation only applies to states and not Puerto Rico, or perhaps more correctly, that the Fourteenth Amendment itself is not applicable to Puerto Rico "insofar as it is not a federated state."
Additionally, Judge Perez-Gimenez asks "does the Constitution follow the flag?" and concludes that under The Insular Cases (1901), territorial incorporation of specific rights is questionable:
Notwithstanding the intense political, judicial and academic debate the island’s territorial status has generated over the years, the fact is that, to date, Puerto Rico remains an unincorporated territory subject to the plenary powers of Congress over the island under the Territorial Clause.More importantly, jurisprudence, tradition and logic teach us that Puerto Rico is not treated as the functional equivalent of a State for purposes of the Fourteenth Amendment. As explained by the Supreme Court, “noting the inherent practical difficulties of enforcing all constitutional provisions ‘always and everywhere,’ the Court devised in the Insular Cases a doctrine that allowed it to use its power sparingly and where it would be most needed.” Boumedine v. Bush.
Thus, this court believes that the right to same-sex marriage in Puerto Rico requires: further judicial expression by the U.S. Supreme Court; or the Supreme Court of Puerto Rico, see e.g. Pueblo v. Duarte, 109 D.P.R. 59 (1980)(following Roe v. Wade, 410 U.S. 113 (1973) and declaring a woman’s right to have an abortion as part of the fundamental right to privacy guaranteed under the Fourteenth Amendment); incorporation through legislation enacted by Congress, in the exercise of the powers conferred by the Territorial Clause, see Const. amend. Art. IV, § 3; or by virtue of any act or statute adopted by the Puerto Rico Legislature that amends or repeals Article 68 [prohibiting same-sex marriage].
In staking out a position regarding Puerto Rico's status, Judge Perez-Gimenez's opinion reverberates with the two cases regarding Puerto Rico presently before the United States Supreme Court even as it looks back to his earlier opinion hostile to the right of same-sex marriage.
[updated: March 11, 2016: Further discussion of these issues available here].
March 9, 2016 in Congressional Authority, Courts and Judging, Current Affairs, Due Process (Substantive), Federalism, Fourteenth Amendment, Opinion Analysis, Sexual Orientation, Sexuality, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0)
Monday, March 7, 2016
United States Supreme Court Reverses Alabama Supreme Court's Denial of Full Faith and Credit to Lesbian "Second-Parent" Adoption
In a brief and straightforward per curiam opinion today in V.L. v. E.L., the United States Supreme Court granted certiorari and reversed the Alabama Supreme Court's denial of full faith and credit to a Georgia adoption involving a lesbian couple.
As we discussed last September when the Alabama Supreme Court's opinion was rendered, it relied in large part on the dissenting opinion of a Georgia Supreme Court in a different case to support its conclusion that the Georgia courts did not have proper "jurisdiction" over the adoption.
The United States Supreme Court stated that the Alabama Supreme Court's "analysis is not consistent with this Court's controlling precedent." It continued:
Indeed, the Alabama Supreme Court’s reasoning would give jurisdictional status to every requirement of the Georgia statutes, since Georgia law indicates those requirements are all mandatory and must be strictly construed. That result would comport neither with Georgia law nor with common sense.
As Justice Holmes observed more than a century ago, “it sometimes may be difficult to decide whether certain words in a statute are directed to jurisdiction or to merits.” Fauntleroyv. Lum, 210 U. S. 230, 234–235 (1908). In such cases, especially where the Full Faith and Credit Clause is concerned, a court must be “slow to read ambiguous words, as meaning to leave the judgment open to dispute, or as intended to do more than fix the rule by which the court should decide.” Id., at 235. That time-honored rule controls here. The Georgia judgment appears on its face to have been issued by a court with jurisdiction, and there is no established Georgia law to the contrary. It follows that the Alabama Supreme Court erred in refusing to grant that judgment full faith and credit.
That the parties to the case are lesbians - - - "two women who were in a relationship" - - - is made apparent by the United States Supreme Court. This fact most likely figured largely in the Alabama Supreme Court's original majority ruling given the well-known hostility of its controversial chief justice to sexual minority rights. However, given Friday's odd dismissal of the same-sex marriage litigation by the Alabama Supreme Court and today's United States Supreme Court definitive and unanimous reversal, it seems as if the opinions of Alabama Supreme Court Justice Greg Shaw (pictured below), who dissented in E.L. as well as the earlier same-sex marriage opinions, has been vindicated.
Friday, March 4, 2016
The Supreme Court of Alabama has issued its opinions- - - totaling 170 pages typescript - - - in Ex parte State of Alabama ex rel. Alabama Policy Institute, Alabama Citizens Action Program, and John E. Enslen, in his official capacity as Judge of Probate for Elmore County dismissing all pending petitions and motions that seek relief from having to issue marriage licenses. And yet, the lengthy concurring opinions in the case contradict rather than support this dismissal.
Recall that in January, controversial Chief Justice of the Alabama Supreme Court Roy Moore issued an Administrative Order forbidding probate judges from issuing same-sex marriage licenses "contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act" since those laws "remain in full force and effect." Earlier, after an Alabama federal judge issued an opinion finding the denial of same-sex marriage unconstitutional, Justice Moore argued that the Alabama was not bound by the federal courts on the same-sex marriage issue. In a March 2015 opinion in this same case - - - Ex parte State of Alabama ex rel. Alabama Policy Institute - - - known as API, the court, without Justice Moore and over a dissent by Justice Shaw held that the Sanctity of Marriage Amendment, art. I, § 36.03, Ala. Const. 1901, and the Alabama Marriage Protection Act, § 30-1-9, Ala. Code 1975, are constitutional. Recall that the United States Supreme Court declined to stay the federal judge's judgment. A few months later, the United States Supreme Court decided Obergefell v. Hodges holding that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples.
In today's opinions, Chief Justice Moore is center-stage and plays a confusing part.
First, he provides a "statement of nonrecusal." He discusses his own participation in various aspects of this continuing litigation and concludes he is not reviewing his own Administrative Order but instead "the effect of Obergefell."
Second, in his own "specially concurring" opinion, his ultimately conclusion is that Obergefell is incorrectly decided and that the Alabama Supreme Court is under no duty to obey it. He writes quite personally:
I took my first oath to support the Constitution of the United States in 1965 at the United States Military Academy on the banks of the Hudson River at West Point, New York. On this very site General George Washington defended the northwest territory against British invasion during the Revolutionary War. I repeated that oath many times during my military service in Western Europe, Vietnam, and locations in the continental United States. Following my military service and upon graduation from the University of Alabama School of Law, I again took an oath to "uphold and support" the United States Constitution. As a private practitioner, deputy district attorney, circuit judge, and Chief Justice of the Alabama Supreme Court on two separate occasions, I took that oath and have administered it to other Judges, Justices, Governors, and State and local officials. In both civilian and military life the oath of loyalty to the Constitution is of paramount importance. **** The oath I took as a cadet at the United States Military Academy at West
Point stated, in part, "that I will at all times obey the legal orders of my superior officers, and the Uniform Code of Military Justice." 57 Bugle Notes, at 5 (1965) (emphasis added). Later, as a company commander in Vietnam, I knew the importance of following orders. The success or failure of a mission and the lives of others depended on strict adherence to the chain of command. The principle of obedience to superior orders is also crucial to the proper functioning of a court system. Nevertheless, the principle of obedience to superior officers is based on the premise that the order given is a lawful one.
He then discusses "Lt. William Calley, a unit commander at My Lai in Vietnam who was convicted of killing 22 innocent civilians," to support his "military analogy" that one should not simply "follow orders" when the orders are immoral.
Third, Chief Justice Moore's opinion is the major, if not majority opinion.
The opinion garnering the most Justices - - - three - - - is by Justice Stuart and is quite short, but speaks volumes. It reads in full:
Motions and petitions are dismissed without explanation by this Court for numerous reasons as a matter of routine. When a Justice issues a writing concurring in or dissenting from an order summarily dismissing a pending motion or petition the writing expresses the explanation for the vote of only the Justice who issues the writing and of any Justice who joins the writing. Attributing the reasoning and explanation in a special concurrence or a dissent to a Justice who did not issue or join the writing is erroneous and unjust.
Justice Greg Shaw also concurs specially, but his is the opinion that supports the conclusion. Justice Shaw had dissented from the March 2015 Order. He now concludes that given Obergefell, the March 2015 Order "no longer has a field of operation or any legal effect."
It is the accepted legal doctrine and the historic legal practice in the United States to follow the decisions of the Supreme Court as authoritative on the meaning of federal law and the federal Constitution. Arguments have been put forth suggesting that this doctrine and this practice are incorrect. Those arguments generally have not been accepted by the courts in this country. For example, in Cooper v. Aaron, 358 U.S. 1 (1958), the Supreme Court of the United States rejected the argument by certain state officials that they were not bound by that Court's decisions.
The idea that decisions of the Supreme Court of the United States are to be followed is not something new or strange. Thus, the members of this Court who would follow the Obergefell decision would not, as either Chief Justice Moore or Justice Parker suggests, be "bow[ing their] knee[s] to the self-established judicial despots of America," "blindly follow[ing] the unsubstantiated opinion of 'five lawyers,'" "'shrink[ing] from the discharge'" of duty, "betray[ing]" their oaths, "blatantly disregard[ing] the Constitution," standing "idly by to watch our liberties destroyed and our Constitution violated," participating in the "conversion of our republican form of government into an aristocracy of nine lawyers," or be adhering to a perceived "evil." They would, quite frankly, be doing what the vast majority of past and present judges and lawyers in this country have always assumed the Constitution requires, notwithstanding the unconvincing arguments found in the requests before us and in the specially concurring opinion of Chief Justice Moore. I charitably say the arguments are "unconvincing" because virtually no one has ever agreed with their rationales.
Justice Shaw certainly seems to have the better view and the citation of Cooper v. Aaron is exactly on point. But given the result, it does not seem as if the National Guard will be marching into Montgomery any time soon.
Could this part of the saga be concluded?
March 4, 2016 in Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, Fundamental Rights, Opinion Analysis, Religion, Sexual Orientation, Sexuality, Supremacy Clause, Supreme Court (US) | Permalink | Comments (4)
The Court issued an Order today in June Medical Services v. Gee involving Louisiana's abortion statute "The Unsafe Abortion Protection Act, HB 388. The district judge had found the Louisiana's statute's admitting privilege provision was unconstitutional and issued a preliminary injunction. The Fifth Circuit in a 15 page opinion granted the state's emergency motion to stay the district judge's preliminary injunction. Thus, the Court's Order essential reinstates the injunction against the Louisiana statute.
The Louisiana statute is similar to Texas's HB 2 at issue in Whole Woman's Health v. Hellerstdet (previously Cole), argued before the Court on Wednesday. In today's Order regarding the Louisiana statute, the Court referenced Whole Woman's Health:
Consistent with the Court’s action granting a stay in Whole Woman’s Health v. Cole, No. 14A1288 (June 29, 2015), the application to vacate the stay entered by the United States Court of Appeals for the Fifth Circuit on February 24, 2016, presented to Justice Thomas and by him referred to the Court, is granted and the Fifth Circuit’s stay of the district court’s injunction is vacated.
Justice Thomas would deny the application.
In the Whole Woman's Health oral argument, Justice Alito mentioned the Louisiana litigation twice, both times in regarding to the evidence in the case about the precise number of abortions that were being performed. But on the constitutional issues, it does seem as if the decision in Whole Woman's Health will be determinative regarding the Louisiana statute's constitutionality.
Monday, February 29, 2016
The Court today heard oral arguments in Williams v. Pennsylvania on issues of due process and the Eighth Amendment revolving around the court's decision in a death penalty case and judicial ethics. The Pennsylvania Supreme Court has been especially rocked by scandals - - - with one Justice resigning because of corruption and another because of sexually explicit emails and another Justice being subject to disciplinary proceedings over the explicit emails - - - but this controversy involves a different Justice, former Chief Justice of the Pennsylvania Supreme Court Ronald Castille. Castille, who retired from the court when he reached the state mandatory retirement age, was elected in 1993, and retained in elections in 2003 and 2013. Importantly, before his election to the bench, Castille worked in the district attorney's office for over 20 years, including being twice elected to the District Attorney position; he reportedly claimed to have "sent 45 people to death row."
One of those people on death row is Terrance Williams, convicted at age 18 and whose story has attracted much interest. Williams claims that it was a violation of due process and the Eighth Amendment for Justice Castille to deny the motion to recuse himself from consideration of Williams' petition for post conviction relief. Williams contends that Castille, as a prosecutor, was personally involved in the case and the decision to seek the death penalty. Williams' post-conviction claim, moreover, is based on prosecutorial misconduct.
The central case in today's oral argument was Caperton v. Massey (2009) regarding judicial bias. Unlike the situation of Justice Benjamin in Caperton, Castille did not cast a "deciding vote" on the court. [Nevertheless, Castille's concurring opinion is worth reading for its defensiveness]. The problem is how - - - or even whether - - - to apply the 5-4 decision in Caperton, which involved judicial bias resulting from campaign contributions.
Stuart Lev, arguing for Williams, faced an almost-immediate question from Chief Justice Roberts, who dissented in Caperton, asking whether the nature of the decision of the former-prosecutor now-Justice should matter - - - was it mere policy or something more individualized? Justice Alito, who also dissented in Caperton, was wary of constitutionalizing the matters of recusal without clear lines. On the other hand, Ronald Eisenberg, arguing for Pennsylvania, seemed to admit that there could be cases in which recusal was necessary, but stressed the long time involved here - - - 30 years - - - which at one point prompted Justice Kennedy to ask "So the fact that he spent 30 years in solitary confinement actually helps the State?" (Eisenberg noted that this wasn't "exactly" the situation). Justice Sotomayor stressed that what was important was that Castille was prosecutor and judge in the "same case." For both sides, much of the wrangling was over what any "rule" should be - - - with the background of the Caperton rule being fluid rather than rigid.
The fact that Castille was only one of the Justices was important, but perhaps less so than it would be for another court. The idea that a judge simply "votes" for a result was looked on with disfavor. As Justice Kennedy stated:
But if - - - if we say that, then we say that being a judge on a 15 judge court doesn't really make much difference. You - - - you don't have a duty, and you don't have can't persuade your colleagues. It's very hard for us to write that kind of decision.
Earlier in the argument, there was some discussion of the remedy - - - and the "unsatisfying" remedy (as Justice Kagan phrased it) of sending the case back to the Pennsylvania Supreme Court to (re)consider the recusal motion. Lev, arguing for Williams, noted that this was the remedy in Caperton and also that the "Pennsylvania Supreme Court is constituted differently," now than it was then. "There were three new justices elected this last November and took office in January."
But what rule should the Court instruct the Pennsylvania Supreme Court to apply? This is likely to divide the Court just as it did in Caperton. But there does seem to be a belief among a majority of Justices that the judicial ethical rules alone are not protecting due process.
Supreme Court's Oral Argument in Voisine: Does Justice Thomas believe there is a Second Amendment issue?
Today's oral argument in Voisine v. United States centers on the statutory construction of 18 U.S.C. § 921(a)(33)(A) which defines a "“misdemeanor crime of domestic violence” as an offense that is a misdemeanor AND
has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.
The relevance of this definitional section is its application to 18 U.S.C. §922(g)(9) which makes is a federal crime for anyone "who has been convicted in any court of a misdemeanor crime of domestic violence," to "ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."
At issue in Voisine is whether the misdemeanor crimes involving family offenses that can be satisfied with a reckless mens rea are included the definition. Virginia Villa, arguing for the petitioners Voisine and Armstrong, stressed statutory definitions but the arguments delved into common law definitions as well. Arguing for the United States, Assistant Solicitor General Ilana Eisenstein stressed Congressional intent, with Justice Ginsburg surfacing the "rule of lenity."
But the argument then took a constitutional turn.
This was prompted by questioning from Justice Thomas (seemingly just as Eisenstadt believed her argument had concluded):
This Court should continue to interpret Section 922(g)(9) in light of that compelling purpose.
If there are no further questions.
JUSTICE THOMAS: Ms. Eisenstein, one question.
Can you give me this is a misdemeanor violation. It suspends a constitutional right. Can you give me another area where a misdemeanor violation suspends a constitutional right?
Justice Thomas thereafter made a First Amendment analogy, asked whether the Second Amendment was indefinitely suspended, and pointed out that the underlying misdemeanor need not have involved a firearm. In considering possible analogies, Justice Kennedy pointed to SORNA which curtails the interstate travel of registered sex offenders. (Justice Kennedy could have analogized to sex offender cases involving the restrictions on First Amendment rights as well). Justice Breyer asked whether the Congressional statute was a "reasonable regulation of guns under the Second Amendment given Heller and the other cases with which I disagreed?" This provoked laughter but was also a poignant reminder that Heller's author was not on the bench given his unanticipated death. Justice Breyer, however, continued and attempted to make clear that the constitutional question was not clearly before the Court. It may be before the Court as a matter of constitutional avoidance (the statute should be construed to avoid the constitutional question), but, as Justice Breyer stated:
So one answer would be, well, maybe so. We aren't facing the constitutional question. We are simply facing the question of what Congress intended. And if this does raise a constitutional question, so be it. And then there will, in a future case, come up with that question. So we or our point is, we don't have to decide that here.
EISENSTEIN: That's correct, Your Honor.
JUSTICE BREYER: Thank you.
EISENSTEIN: If there are no further questions.
Ilana Eisenstein was then excused by Chief Justice Roberts.
Justice Thomas broke his own well-remarked upon habit of not asking questions during oral argument; it's been a decade since he has. But as some Court observers has noticed, he did write notes which were passed to Justice Scalia. It is difficult to not to make a causal connection in this regard. Moreover, Justice Thomas assumed a more active role in a case seemingly involving Second Amendment rights, an issue which a future Court might reconsider.
However, as the Court did in another domestic violence case last term, Elonis v. United States, look for a decision that engages in statutory construction and avoid the constitutional issue.
Wednesday, February 24, 2016
On this anniversary of Marbury v. Madison (decided February 24, 1803), and given the current controversies regarding the appointment of Justice Scalia's successor after his unexpected death, Justice Scalia's views on the political nature of judicial appointments, including those to the United States Supreme Court, is worth a read.
Dissenting in Rutan v. Republican Party of Illinois (1990), Scalia wrote:
Today the Court establishes the constitutional principle that party membership is not a permissible factor in the dispensation of government jobs, except those jobs for the performance of which party affiliation is an "appropriate requirement." Ante, at 1. It is hard to say precisely (or even generally) what that exception means, but if there is any category of jobs for whose performance party affiliation is not an appropriate requirement, it is the job of being a judge, where partisanship is not only unneeded but positively undesirable. It is, however, rare that a federal administration of one party will appoint a judge from another party. And it has always been rare. See Marbury v. Madison, 1 Cranch 137 (1803). Thus, the new principle that the Court today announces will be enforced by a corps of judges (the Members of this Court included) who overwhelmingly owe their office to its violation. Something must be wrong here, and I suggest it is the Court.
The Court's majority opinion - - - authored by Justice William Brennan, a Democrat appointed to the United States Supreme Court by the Republican President Dwight Eisenhower - - - held that the Illinois governor's practice of implementing certain austerity measures in state government in accordance with political affiliation violated the First Amendment rights of government employees. Brennan's opinion for the Court notably began:
To the victor belong only those spoils that may be constitutionally obtained. Elrod v. Burns (1976), and Branti v. Finkel (1980), decided that the First Amendment forbids government officials to discharge or threaten to discharge public employees solely for not being supporters of the political party in power, unless party affiliation is an appropriate requirement for the position involved. Today we are asked to decide the constitutionality of several related political patronage practices — whether promotion, transfer, recall, and hiring decisions involving low-level public employees may be constitutionally based on party affiliation and support. We hold that they may not.
What the Constitution does - - - or does not - - - provide regarding the "spoils" of judicial appointment is being hotly contested. And in this, Marbury v. Madison may be relevant as more than illustration should the controversy become subject to judicial review.
Monday, February 15, 2016
It's rare that the Justices of the United States Supreme Court are equally divided, in part because of there are usually 9 Justices.
But after the death of Justice Antonin Scalia, it's quite possible that there will be a number of 4-4 equally divided votes between the 8 Justices remaining on the United States Supreme Court.
LawProf Justin Pidot's article just posted to ssrn, Tie Votes in the Supreme Court, couldn't be more timely. Pidot analyzes "the 164 ties in the Supreme Court between 1925 and 2015," arguing that most of these cases have not been controversial "in part because few of them involved particularly contentious cases in the eye of the public." As Pidot notes, the practice is that when the Justices are evenly divided, the lower court opinion is affirmed:
The most common form of the affirmance by equal division is both unattributed and non- explanatory, with the order indicating only the justice recused (of course, if the Court is experiencing a vacancy, and this is the cause of the equal division, no such comment is made). This is the form of 149 of the 164 cases in the dataset.
As an example, Pidot cites Flores-Villar v. United States (2011), a case involving a gender differential in citizenship/ immigration treating unmarried mothers and fathers differently. It was Justice Kagan's recusal that created the tie.
Pidot's argument is that a 4-4 affirmance brings disrepute on the Court, especially given that the vast majority of evenly divided splits are those in which the Court is exercising discretionary jurisdiction. Pidot contends that the 4-4 affirmance is a "relic" of the past that the Court should abandon in favor of "DIG" - a dismissal of the writ as improvidently granted. The advantage of the DIG over the affirmance by an equally divided Court might become muddied, however, if DIG simply replaces the explicit albeit non-precedential affirmance given that the lower court opinion will remain essentially undisturbed.
However, with the Justices now presumably divided in some major cases under consideration - - - Friedrichs v. California Teachers and the contraception mandate cases Zubik v. Burwell ( a follow-up to the 5-4 Burwell v. Hobby Lobby) - - - it is an opportune time for the Court to consider its 4-4 processes.
Saturday, February 13, 2016
The Washington Post obituary is here.
In a statement Saturday, Chief Justice John G. Roberts said: “On behalf of the Court and retired Justices, I am saddened to report that our colleague Justice Antonin Scalia has passed away. He was an extraordinary individual and jurist, admired and treasured by his colleagues. His passing is a great loss to the Court and the country he so loyally served. We extend our deepest condolences to his wife Maureen and his family.”
In the first official notice of Justice Scalia’s death, Texas Gov. Greg Abbott said: “Justice Antonin Scalia was a man of God, a patriot, and an unwavering defender of the written Constitution and the Rule of Law. His fierce loyalty to the Constitution set an unmatched example, not just for judges and lawyers, but for all Americans. We mourn his passing, and we pray that his successor on the Supreme Court will take his place as a champion for the written Constitution and the Rule of Law.”
Some of the first reports were from Texas media, including one from a San Antonio outlet:
Associate Justice Antonin Scalia was found dead of apparent natural causes Saturday on a luxury resort in West Texas, federal officials said.
Scalia, 79, was a guest at the Cibolo Creek Ranch, a resort in the Big Bend region south of Marfa.
According to a report, Scalia arrived at the ranch on Friday and attended a private party with about 40 people. When he did not appear for breakfast, a person associated with the ranch went to his room and found a body.
from the official Supreme Court biography:
Antonin Scalia, Associate Justice,was born in Trenton, New Jersey, March 11, 1936. He married Maureen McCarthy and has nine children - Ann Forrest, Eugene, John Francis, Catherine Elisabeth, Mary Clare, Paul David, Matthew, Christopher James, and Margaret Jane. He received his A.B. from Georgetown University and the University of Fribourg, Switzerland, and his LL.B. from Harvard Law School, and was a Sheldon Fellow of Harvard University from 1960–1961. He was in private practice in Cleveland, Ohio from 1961–1967, a Professor of Law at the University of Virginia from 1967–1971, and a Professor of Law at the University of Chicago from 1977–1982, and a Visiting Professor of Law at Georgetown University and Stanford University. He was chairman of the American Bar Association’s Section of Administrative Law, 1981–1982, and its Conference of Section Chairmen, 1982–1983. He served the federal government as General Counsel of the Office of Telecommunications Policy from 1971–1972, Chairman of the Administrative Conference of the United States from 1972–1974, and Assistant Attorney General for the Office of Legal Counsel from 1974–1977. He was appointed Judge of the United States Court of Appeals for the District of Columbia Circuit in 1982. President Reagan nominated him as an Associate Justice of the Supreme Court, and he took his seat September 26, 1986.
Sunday, February 7, 2016
The volume U.S. Feminist Judgments is forthcoming from Cambridge University Press, including 24 rewritten opinions and commentary, most of which will be of great interest to ConLawProfs. The editors have posted the Table of Contents and Introduction on ssrn here.
Stay Tuned for an announcement of a forthcoming conference!
And if you are interested in ConLaw and Tax from a feminist perspective, consider the Call for Contributions for a new volume.
[More on artist Soraida Martinez here]
Friday, February 5, 2016
Justice Souter Upholds Statute Authorizing Public Employee Union by Child Care Workers Against First Amendment Challenge
Justice Souter - - - retired from the United States Supreme Court but sitting by designation on a First Circuit panel - - - declined to extend the Court's decision in Harris v. Quinn to the context of home child care workers in the opinion in D'Agostino v. Baker.
At issue was Massachusetts Gen. Laws ch. 15D, § 17(b), providing that family child care providers "shall be considered public employees . . . solely for the purposes of . . . chapter 150E," the statute authorizing employees in public service to organize for collective bargaining. The majority of the family child care providers chose Service Employees International Union (SEIU) as their exclusive agent for bargaining collectively with the state. And while the statute did not mandate that any child care provider join the union or contribute any money to the union, the plaintiffs challenged the statute as violating their First Amendment rights, especially free association.
Writing for the unanimous panel, Souter opined that the "disposition of the constitutional claims turns on precedent, and the appellants' principal arguments probe the vitality of that precedent in light of recent developments." For Souter, the precedents of Abood v. Detroit Board of Education (1977) and Minnesota State Board for Community Colleges v. Knight (1984) remain controlling, despite Harris v. Quinn:
But the Harris distinction does not decide this case. While we can agree with the appellants in assuming the comparability of Harris's personal assistants and the child care providers here, the issues at stake in the two cases are different. Unlike the Harris litigants, the appellants are not challenging a mandatory fee; indeed, an agency fee previously enforced against the providers here was eliminated after Harris came down. What Harris did not speak to, however, was the premise assumed and extended in Knight: that exclusive bargaining representation by a democratically selected union does not, without more, violate the right of free association on the part of dissenting non-union members of the bargaining unit. Harris did not hold or say that this rule was inapplicable to "partial" employees covered by a collective bargaining agreement. Harris, in fact, did not so much as mention Knight, and precedent supports applying its rule here.
Souter was not on the Court when it decided Abood, Knight, or Harris. And of course he is not on the Court as it deliberates Friedrichs v. California Teachers Ass'n, which may be the "demise" of public fair share union dues and the rejection of the precedent on which Souter is relying here.
Friday, January 22, 2016
Kansas Appellate Court Affirms Finding That Kansas's "Dismemberment Abortion Act" is Unconstitutional under State Constitution
The Kansas Court of Appeals, the intermediate appellate court, has found that the Kansas Constitution includes a due process right applicable to abortion and that the Kansas Unborn Child Protection from Dismemberment Abortion Act (SB95) violates that right in its opinion by Judge Steve Leben in Hodes & Nauser v. Schmidt.
Before the discussion of the constitutionality of the Act, there were some preliminary - - - and unusual - - - issues, including some noteworthy matters of procedure. Unusually, the Court of Appeals heard the case en banc rather in a panel of three. And presumably also unusual, the judges were "equally divided, seven voting to affirm the district court and seven voting to reverse." Thus, the trial court's ruling granting a preliminary injunction against the Act was affirmed.
Additionally, there were some state constitutional law issues. Importantly, the plaintiffs' argument that the Act is unconstitutional rests solely on the state constitution. As the Leben opinion stated, this was a case of first impression and a "plaintiff has the procedural right to choose the legal theories he or she will pursue; we cannot force the plaintiffs here to choose another legal avenue.") But the Kansas State Constitution does not include a due process clause - - - or even the words "due process" - - - unlike the United States Constitution's Fifth and Fourteenth Amendments, in which the right to an abortion has been anchored. Instead, plaintiffs argued, and the court found, that §1 and §2 of the Kansas Constitution Bill of Rights include a due process right despite their explicit language:
§ 1. Equal rights. All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.
§ 2. Political power; privileges. All political power is inherent in the people, and all free governments are founded on their authority, and are instituted for their equal protection and benefit. No special privileges or immunities shall ever be granted by the legislature, which may not be altered, revoked or repealed by the same body; and this power shall be exercised by no other tribunal or agency.
Judge Leben's finding was based in large part on previous decisions of the Kansas Supreme Court. Where the dissent differed was not on the matter of due process as a general matter but on the specific inclusion of "abortion." Indeed, as Judge Leben's opinion admitted "What the Kansas Supreme Court has not yet done is apply substantive-due-process principles in a case involving personal or fundamental rights, like the right to contraception, the right to marry, or the right to abortion." But as Judge Leben's opinion noted, "the Kansas Supreme Court has explicitly recognized a substantive-due- process right under the Kansas Constitution and has applied a substantive-due-process legal standard equivalent to the one applicable under the Fourteenth Amendment at the time of these Kansas decisions." This past practice was an embrace of the present, and Judge Leben's opinion interestingly quotes the Court's recent opinion by Justice Kennedy Obergefell as well as opinions from the Kansas Supreme Court. Judge Leben nicely sums up the position:
The rights of Kansas women in 2016 are not limited to those specifically intended by the men who drafted our state's constitution in 1859.
Having decided that the Kansas constitutional text merits a co-extensive interpretation with the federal constitution, Judge Leben's opinion for the Kansas Court of Appeal does not rest on "adequate and independent state grounds" under Michigan v. Long. Judge Gordon Atcheson's extensive and scholarly concurring opinion makes the case that §1 of the Kansas Bill of Rights provides "entirely separate constitutional protection without direct federal counterpart" for abortion and that such protection is greater under the Kansas state constitution than under the Fourteenth Amendment.
Under the co-extensive interpretation, Judge Leben's opinion thus confronted the constitutionality of the Kansas Act under the substantive due process "undue burden" standard. This entailed an application of the disparate Carhart cases: Stenberg v. Carhart (2000) and Gonzales v. Carhart (2007). In Stenberg, the Court concluded Nebraska's so-called "partial-birth abortion" statute was unconstitutional; in Gonzales, the Court concluded that the federal so-called "partial-birth abortion" statute was constitutional.
The Judge Leben opinion distinguished Gonzales:
But the circumstances here are quite unlike Gonzales. There, the Court considered a ban on an uncommon procedure and noted that the most common and generally safest abortion method remained available. Here, the State has done the opposite, banning the most common, safest procedure and leaving only uncommon and often unstudied options available.
Interestingly, Judge Atcheson's concurring opinion responded to the Justice Kennedy's language in Gonzales and the language of the Kansas Act:
The State's remaining argument rests on the unaesthetic description of a D &E abortion contained in Senate Bill 95 and in Gonzales v. Carhart (2007). But aesthetics really cannot justify legislative limitations on safe medical procedures. The lack of justification is even more pronounced when the procedure is integral to a woman's constitutional right to self-determination and reproductive freedom. The government cannot impose upon an essential right because some exercise of the right may be unaesthetic or even repulsive to some people. That's all the more true when those people needn't see or participate in the protected activity.
The dissenting opinion concludes that there is "nothing in the text or history of §§1 and 2 of the Kansas Constitution Bill of Rights to lead this court to conclude that these provisions were intended to guarantee a right to abortion."
This matter is surely going to the Kansas Supreme Court, as Judge Leben's opinion for the Kansas Court of Appeals acknowledged. Rendered on the 43rd anniversary of the United States Supreme Court's decision in Roe v. Wade and as the Court prepares to consider its first abortion case in 8 years, Whole Woman's Health v. Cole, the Kansas Court of Appeals evenly split decision exemplifies how divided opinion on this issue can be.
January 22, 2016 in Abortion, Cases and Case Materials, Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Fourteenth Amendment, Gender, International, Opinion Analysis, State Constitutional Law, Supreme Court (US) | Permalink | Comments (1)
Monday, January 18, 2016
On this Martin Luther King Day, the 2016 Presidential Proclamation includes attention to the continuing quest for educational equality:
Today, we celebrate the long arc of progress for which Dr. King and so many other leaders fought to bend toward a brighter day. It is our mission to fulfill his vision of a Nation devoted to rejecting bigotry in all its forms; to rising above cynicism and the belief that we cannot change; and to cherishing dignity and opportunity not only for our own daughters and sons, but also for our neighbors' children.
We have made great advances since Dr. King's time, yet injustice remains in many corners of our country. In too many communities, the cycle of poverty persists and students attend schools without adequate resources -- some that serve as a pipeline to prison for young people of color. Children still go to bed hungry, and the sick go without sufficient treatment in neighborhoods across America. To put up blinders to these realities or to intimate that they are inherent to a Nation as large and diverse as ours would do a disservice to those who fought so hard to ensure ours was a country dedicated to the proposition that all people are created equal.
It's worth (re)reading Professor Taunya Lovell Banks' 2013 article, The Unfinished Journey - Education, Equality and Martin Luther King, Jr. Revisited, 58 Villanova Law Review 471, available on ssrn, arguing that educational equality includes economic equality.
Delivered as a MLK Day Lecture at Villanova, Professor Banks remarks have continued resonance as the United States Supreme Court deliberates Fisher II regarding affirmative action in higher education:
As our experience with Brown [v. Board of Education] has taught us, law is an imperfect vehicle for bringing about massive social change. In 1963, Dr. King, in his often quoted Letter from a Birmingham Jail, wrote about the “interrelatedness of all communities and states.” The same year he wrote in his book Strength to Love that: “True integration will be achieved by true neighbors who are willingly obedient to unenforceable obligations.” I contend that we as Americans have an unenforceable obligation to provide quality education for all of our children and not handicap some children so that others can become more competitive. We must do this by public will, not solely through law.
As I said earlier, our efforts to bring about educational equality should be multi-directional, and lawyers have a role to play. As part of this battle some lawyers and academics must recommit to convincing state courts to define more broadly their guarantees of a free public education. We must convince state courts that education is a fundamental right. Others must work with state legislatures to get them to commit, in words and funds, to the achievement of a twenty-first century notion of educational equality. More importantly, we all must work to get Americans throughout the nation to recommit to a strong public education system throughout the country.
[footnotes omitted; emphasis added].
Saturday, January 16, 2016
United States Supreme Court Grants Certiorari in Free Exercise State Funding Case: Trinity Lutheran Church of Columbia, Mo.
The United States Supreme Court has granted certiorari in Trinity Lutheran Church of Columbia, Mo. v. Pauley regarding a Free Exercise and Equal Protection challenge to a denial of state funding that was based on a state constitutional provision prohibiting state funds be given to religious organizations.
As the Eighth Circuit opinion ruling for the state, had phrased it, "Trinity Church seeks an unprecedented ruling -- that a state constitution violates the First Amendment and the Equal Protection Clause if it bars the grant of public funds to a church." The Eighth Circuit relied in part on Locke v. Davey, 540 U.S. 712 (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.
There are actually two Missouri constitutional provisions, Art. I §7 and Art. IX §8, which as the Eighth Circuit noted, are "not only more explicit but more restrictive than the Establishment Clause of the United States Constitution,” quoting a Missouri Supreme Court decision. The provisions were initially adopted in 1870 and 1875, and re-adopted in the Missouri Constitution of 1945, the current constitution. The first provision is the one at the heart of this dispute. Placed in the state constitution's "Bill of Rights," Art. I §7 provides:
That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect, or creed of religion, or any form of religious faith or worship.
It was in reliance on this state constitutional provision that the state Department of Natural Resources denied the grant application of Trinity Lutheran Church for funds to purchase of recycled tires to resurface its preschool playground. To supply such funds, the state officials decided, would violate the state constitution.
Trinity Lutheran Church articulated the issue in its petition for certiorari as
Whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.
It argues that the Eighth Circuit's decision was not "faithful" to Locke v. Davey because the playground resurfacing program was purely secular in nature, unlike in Locke. But this might mean that the state constitutional provisions defining their own boundaries regarding "establishment" of religion are unconstitutional.
Friday, January 15, 2016
New York State Appellate Court Rejects First Amendment Claim in Same-Sex Wedding Discrimination Case
In its opinion in Gifford v. McCarthy, an appellate court in New York upheld the decision of the State Division of Human Rights that the owners of Liberty Ridge Farm, a wedding venue, were guilty of an unlawful discriminatory practice based upon sexual orientation when they refused to provide services for a same-sex wedding. Writing for the unanimous five judge panel, Presiding Justice Karen Peters concluded that the venue was clearly a place of public accommodation within the anti-discrimination law and that discrimination based upon sexual orientation clearly occurred.
On the constitutional issues, Justice Peters found the arguments under both the First Amendment and New York's similar provisions without merit. Regarding the First Amendment Free Exercise of religion claim, Justice Peters concluded that "the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his [or her] religion prescribes (or proscribes)," citing Employment Div., Dept. of Human Resources of Ore. v Smith (1990). She noted that the "fact that some religious organizations and educational facilities are exempt from the [state] statute's public accommodation provision does not, as petitioners claim, demonstrate that it is not neutral or generally applicable."
Applying New York's Free Exercise provision under which the infringement is balanced against the state interests, and Justice Peters wrote:
While we recognize that the burden placed on the Giffords' right to freely exercise their religion is not inconsequential, it cannot be overlooked that SDHR's determination does not require them to participate in the marriage of a same-sex couple. Indeed, the Giffords are free to adhere to and profess their religious beliefs that same-sex couples should not marry, but they must permit same-sex couples to marry on the premises if they choose to allow opposite-sex couples to do so. To be weighed against the Giffords' interests in adhering to the tenets of their faith is New York's long-recognized, substantial interest in eradicating discrimination."
Thus the court rejected the free exercise claims. Similarly, the court rejected the free speech claims of compelled speech and free association. On compelled speech, Justice Peters' opinion for the court concluded that the provision of a wedding venue was not expressive:
Despite the Giffords' assertion that their direct participation in same-sex wedding ceremonies would "broadcast to all who pass by the Farm" their support for same-sex marriage, reasonable observers would not perceive the Giffords' provision of a venue and services for a same-sex wedding ceremony as an endorsement of same-sex marriage. Like all other owners of public accommodations who provide services to the general public, the Giffords must comply with the statutory mandate prohibiting discrimination against customers on the basis of sexual orientation or any other protected characteristic. Under such circumstances, there is no real likelihood that the Giffords would be perceived as endorsing the values or lifestyle of the individuals renting their facilities as opposed to merely complying with anti-discrimination laws.
The court also held that Liberty Farms was not an "expressive association" but a business with the "purpose of making a profit through service contracts with customers." However, the court added that even if Liberty Ridge were to be deemed an expressive enterprise, "a customer's association with a business for the limited purposes of obtaining goods and services – as opposed to becoming part of the business itself – does not trigger" expressive association.
In upholding the application of the anti-discrimination law against First Amendment challenges, the New York appellate opinion joins other courts that have reached the same conclusion: the New Mexico courts in Elane Photography to which the United States Supreme Court denied certiorar and the Colorado courts in Masterpiece Cakeshop. The UK Supreme Court's decision in Bull v. Hall is also consistent with this trend. Nevertheless, the issue is far from settled and more decisions likely.
UPDATE: The owners of Liberty Ridge will reportedly not appeal.
January 15, 2016 in Association, Cases and Case Materials, Current Affairs, Family, First Amendment, Fundamental Rights, Opinion Analysis, Recent Cases, Religion, Speech, State Constitutional Law, Supreme Court (US) | Permalink | Comments (1)
Monday, December 14, 2015
The United States Supreme Court today issued a simple Order staying the mandate of the Alabama Supreme Court's controversial denial of full faith and credit to a Georgia adoption of three children by a member of a same-sex couple in V.L. v. E.L. Recall that the Supreme Court of Alabama's opinion, reversing the lower courts, relied primarily on a dissent from the Georgia Supreme Court in another case.
Today's Order reads in full:
The applications for recall and stay of the Supreme Court of Alabama’s Certificate of Judgment, in case No. 1140595, presented to Justice Thomas and by him referred to the Court, are granted pending the disposition of the petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the issuance of the mandate of this Court.
It is clearly not a ruling on the merits. Whether or not it provides an indication that the Court will grant the petition for writ of certiorari is speculative.
Nevertheless, this controversy is reminiscent of previous controversies involving the Alabama Supreme Court - - - whose Chief Justice is Roy Moore (pictured above) - - - and the state courts' interpretation of same-sex marriage as opposed to the United States Supreme Court.
Tuesday, December 8, 2015
The Amicus Brief of the United States in Fisher v. University of Texas - - - Fisher II - - - to be argued December 9, begins its argument with an interesting evocation of the governmental interest in diversity:
Over two hundred years ago, George Washington recognized the importance to the Nation of a university education that would “qualify our citizens for the exigencies of public, as well as private life *** by assembling the youth from the different parts of this rising republic, contributing from their intercourse, and interchange of information, to the removal of prejudices which might perhaps, sometimes arise, from local circumstances.” Letter from President George Washington to the Commissioners of the District of Columbia (Jan. 28, 1795), in 34 The Writings of George Washington 106-107 (John C. Fitzpatrick ed., 1940).
[Ellipses in original].
Tuesday, November 24, 2015
Seventh Circuit Finds Wisconsin's Physician "Admitting Privileges" Abortion Requirement Unconstitutional
In its divided opinion in Planned Parenthood of Wisconsin v. Schimel, the Seventh Circuit affirmed the district judge's grant of a permanent injunction against the 2013 Wisconsin Statute, §253.095(2), that prohibits a physician from performing an abortion unless she or he has admitting privileges at a hospital no more than 30 miles from the clinic in which the abortion is performed.
Writing for the majority, Judge Richard Posner (pictured) concluded that the state statute imposed an undue burden on women seeking abortions and focused on the statute's intent to "strew impediments to abortion" rather than achieve its stated purpose of protecting women's health.
Judge Posner first noted that the statute was signed into law on a Friday and required doctors comply with it by Sunday; this revealed the legislative intent to prevent abortions rather than protect women's health.
Additionally, Judge Posner concluded that any focus on women's health was spurious. First, "A woman who experiences complications from an abortion (either while still at the clinic where the abortion was per- formed or at home afterward) will go to the nearest hospital, which will treat her regardless of whether her abortion doc- tor has admitting privileges," citing the brief by the American College of Obstetricians and Gynecologists, the American Medical Association, and the Wisconsin Medical Society. Second, citing the same brief, Judge Posner concluded that studies show that "complications from an abortion are both rare and rarely dangerous," and contended that this fact "further attenuates the need for abortion doctors to have admitting privileges." Third, Posner found it troublesome that abortion was singled out for such an admitting privileges law:
Wisconsin appears to be indifferent to complications of any other outpatient procedures, even when they are far more likely to produce complications than abortions are. For example, the rate of complications resulting in hospitalization from colonoscopies done for screening purposes is four times the rate of complications requiring hospitalization from first-trimester abortions.
As to the "continuity of care" justification, Posner noted that while the statute requires the physician to have admitting privileges at a hospital within 30 miles, it does not require the physician to care for that patient at the hospital.
Judge Posner firmly rejected the argument that women in Wisconsin could exercise their constitutional right to an abortion in Chicago - - - across state lines - - - and further found that there was an undue burden for women given that such a trip could be "prohibitively expensive" especially for women living below the poverty line.
In his inimitable style, Judge Posner also provided his views on the Fifth Circuit's decision regarding Texas's HB2 in Whole Woman's Health v. Cole, to which the United States Supreme Court recently granted certiorari. Judge Posner distinguished the Fifth Circuit's conclusion on the admitting privileges provision, noting that the plaintiffs there did not satisfy the court that the statute would lead to a substantial decline in the availability of abortion. But Judge Posner also provided his opinion on the Texas statute's ambulatory surgical center requirements - - - notwithstanding the fact that a similar provision was not before the Seventh Circuit - - - noting that
The [Fifth Circuit] court remarked the absence of evidence that the remaining clinics could not expand their capacity to compensate for the closing of more than three-fourths of them, although one wouldn’t think it necessary to parade evidence that the remaining clinics would find it extremely difficult to quadruple their capacity to provide abortions, which would require, in the face of fierce opposition to abortion clinics and the difficulty of relocating abortion doctors from the closed clinics, extensive physical enlargement to house additional patients and doctors.
Judge Posner also responded to the Fifth Circuit's previous decision on HB2 in Planned Parenthood of Greater Texas v. Abbott that "excoriated" the Seventh Circuit's opinion upholding the preliminary injunction against the Wisconsin statute for engaging in "empirical basis review." Judge Posner wrote:
But a statute that curtails the constitutional right to an abortion, such as the Wisconsin and Texas statutes, cannot survive challenge without evidence that the curtailment is justifiable by reference to the benefits conferred by the statute. The statute may not be irrational, yet may still impose an undue burden—a burden excessive in relation to the aims of the statute and the benefits likely to be conferred by it— and if so it is unconstitutional.
Judge Posner ultimately concluded that "We do not agree with the Fifth Circuit that evidence is irrelevant in a constitutional case concerning abortion."
Judge Daniel Manion's well-organized dissenting opinion disagrees with the majority at almost every turn. For example, Judge Manion finds that abortion is "subject to less regulatory oversight than almost any area of medicine." On the subject of state-lines, Judge Manion declares: "Consumers who live near the border of two states tend to shop at the closest destination, regardless of whether they reside in that state." Thus, the courts should consider "distance" rather than "the governor's mansion" to decide whether or not a regulation will constitute an undue burden. Instead, Wisconsin - - - or the courts - - -need not intervene if "the market fails to provide qualified abortionists within its boundaries."
For Posner, joined in the opinion by Judge David Hamilton, the overturning of Roe v. Wade is a "steep uphill fight," so persons opposed to abortion "proceed indirectly" in the guise of protecting women's health and thereby pass unconstitutional laws. Whether or not Judge Posner's predictions will prove correct will be tested as the United States Supreme Court considers Whole Woman's Health this Term.