Constitutional Law Prof Blog

Check it Out: Sullivan on Lessons of the Plague Years

Check out Barry Sullivan's (Loyola Chicago) excellent Lessons of the Plague Years, 54 Loyola U. Chi. L. J. 15 (2022). Here's the abstract:

The COVID-19 pandemic has challenged governments of every description across the globe, and it surely would have tested the mettle of any American administration. But the pandemic appeared in the United States at a particularly inopportune time. January 2020 marked the beginning of a presidential election year in a deeply polarized country. President Donald Trump was a controversial figure, beginning the fourth year of a highly idiosyncratic administration. He was both a candidate for re-election and the subject of an ongoing impeachment proceeding. In these circumstances, the pandemic quickly became politicized.

President Trump’s response to the COVID-19 pandemic has often been faulted for his lack of leadership, and for his refusal to “follow the science.” During the 2020 election, the Democrats sought to portray themselves as the “party of science,” touting their willingness to “follow the science,” and distinguishing themselves in that way from President Trump—whom they portrayed as someone who did not “believe in science.” As this Article shows, however, the issue was more complicated than “following the science” or not. The president failed to demonstrate the leadership that the situation called for, and he seemingly lost all interest in the pandemic after he failed to win re-election—even as the infection and death counts spiraled out of control. But the story of the federal government’s missteps also involves the government’s scientific bureaucracy, and its relationship to the president and other political actors—matters that transcend the personalities or particularities of any specific administration. From the beginning of the pandemic, government scientists purported to speak with great authority, but their pronouncements were far from consistent.

The federal government’s response to the pandemic involves failures by scientists and politicians and implicates some of the most fundamental aspects of our constitutional system. First, the primary responsibility for public health rests with the states in our federal system, but the national government is constitutionally authorized to act in a national public health emergency. At the end of the day, however, the effectiveness of federal action may depend as much on the quality of the president’s leadership and relationships with state officials (and, at least in times of extreme partisanship, on whether the president and state officials belong to the same political party), as on any specific constitutional or legal authority. Second, it is a commonplace that Congress makes the laws, while the president’s role is to “take Care that the Laws be faithfully executed.” For the federal government to respond effectively to a national health crisis, Congress must grant the president the legal authority to act, and the president must be willing to exercise the authority that Congress has given. That too depends on presidential leadership, and, at least in times of extreme partisanship, it may also depend on the respective party affiliations of the president and congressional majorities. Third, in several recent cases, the Supreme Court has enthusiastically endorsed the so-called “unitary executive” theory, which holds that the president must have strong chain-of-command authority over all administrative decisionmakers, regardless of how technical or inappropriate for resolution by short-term political calculation their work may be. On the other hand, governmental transparency and sound policy demand that policymakers and the public be able to recognize where scientific expertise ends, and politics begins. Finally, given the date currently set for presidential elections, the Twentieth Amendment ensures that a defeated or otherwise retiring president will retain all the power of the presidency for approximately ten weeks after a new president has been elected, regardless of how much political support or interest in governing the incumbent president may have.

This Article explores the effects that each of these constitutional principles and understandings has had on the government’s efforts to combat the COVID-19 pandemic, as well as the effect that the government’s performance with respect to the pandemic should have on how we think about these principles and theories. Those inquiries are particularly appropriate now, when the problems posed by political polarization, unconventional political leaders, and the public’s need for the best available science are unlikely to disappear.

South Carolina Supremes Strike Six-Week Abortion Ban Under State Constitution

The South Carolina Supreme Court ruled yesterday that the state's ban on abortion after six weeks of pregnancy violated the state constitution's right to privacy.

In doing so, the court broke with the historical approach that the Supreme Court used last summer in Dobbs v. Jackson Women's Health Organization, when it overturned Roe v. Wade. The Court in Dobbs used only history before and leading up to the adoption of the Fourteenth Amendment in concluding that the Fourteenth Amendment didn't protect a right to abortion, whereas the South Carolina Supreme Court also considered the place of women in political society at the time of the adoption of the provision at issue and events that have "transpired since the amendment was adopted."

The court based the ruling on Article I, Section 10, of the South Carolina Constitution, which says: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated." The provision sounds like the Fourth Amendment, with the addition of a specific right to privacy. But the court rejected a reading that would've limited the privacy part to government searches and seizures; it said that the privacy part wouldn't be doing any work if it were so limited, and that it therefore must grant a more general right to privacy.

The court also rejected a reading of the provision that depended on what the provision's framers thought at the time of adoption in the mid-1960s, given that women weren't included in the framing committee and given that the state "had neither permitted women to serve on juries in this state nor ratified the Nineteenth Amendment."

The court then wrote that "[w]e cannot relegate our role of declaring whether a legislative act is constitutional by blinding ourselves to everything that has transpired since the amendment was adopted." It said the Court specifically "declined to do so in the context of 'separate but equal' education in Brown v. Board of Education, then quoted this passage:

[W]e cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.

The approach is a notable break from the Supreme Court's historical approach in Dobbs, when it considered history only before and leading up to the Fourteenth Amendment, and certainly not "everything that has transpired since the amendment was adopted." The South Carolina Supreme Court put a fine point on this break by noting that the Court itself didn't limit its historical assessment to pre-Fourteenth Amendment history in other unenumerated-fundamental-rights cases like Loving, Griswold, Lawrence, and Obergefell.

SCOTUS Stays District Court Title 42 Ruling, Sets State Intervention for Argument

The Supreme Court stayed a district court ruling that vacated the Trump Administration's Title 42 policy and set states' motion for intervention in the case for oral argument in the February sitting.

The ruling means that the Title 42 policy can stay in place, and that the Court will rule later this year whether twelve states led by Republican attorneys general can intervene in the case on the merits.

We last posted here.

The case arises out of the Trump Administration's Title 42 policy, which turned away immigrants--including immigrants who were entitled to apply for asylum--because the Administration determined under federal law that immigration posed a "serious danger" of "introduc[ing]" a "communicable disease." A district court ruled the policy invalid, however, and halted it. States then moved to intervene, arguing that the Biden Administration wouldn't sufficiently defend it on appeal. (The Biden Administration, in fact, is appealing the district court ruling. But it also moved to halt the policy earlier this year, saying that it's no longer justified. In other words, the government is saying that the Trump Administration had authority to implement Title 42 in the first place, and that it has authority to revoke it now that it's no longer necessary and justified. The states take all this as evidence that the Biden Administration won't sufficient defend the policy on appeal.) But they moved quite late, and the D.C. Circuit rejected their motion. They then applied to the Supreme Court for expedited review of the D.C. Circuit's denial, and a stay of the district court's ruling striking the policy.

The Court granted both requests. It stayed the district court's ruling (which allows Title 42 to remain in place) and set the states' motion for intervention for oral argument in its February sitting. The Court ordered the parties to brief this single question: Whether the State applicants may intervene to challenge the District Court's summary judgment order.

Justices Sotomayor and Kagan noted without comment that they'd deny the application. Justice Gorsuch dissented, joined by Justice Jackson, arguing that the Court need not, and should not, get involved in this dispute, at least on an expedited basis. He wrote that there's no rush to determine whether the states can intervene in this dispute over a policy that everyone agrees has "outlived its shelf life" (because it's no longer justified by COVID).

The Court's ruling specifically says that it "does not prevent the federal government from taking any action with respect to [the Title 42 policy]." But another case does, at least for now: A different federal district court ruled in an entirely different case that the Biden Administration's revocation of the Title 42 policy was unlawful. The Administration appealed that ruling to the Fifth Circuit (where the case is pending). In the meantime, the Administration considers itself barred from revoking Title 42.

All this means that Title 42 remains in place, even though everyone seems to agree that it's no longer justified by COVID.

January 6 Committee Makes Criminal Referrals for Trump and Others

The January 6 Committee today made criminal referrals to the Department of Justice for former President Trump and others who were involved in the insurrection. The move is the first time that Congress has referred a former president for criminal prosecution.

But remember: the Committee's action doesn't have any formal legal significance, and it doesn't compel the Justice Department to act. Congress lacks that power. The Committee can simply make the referrals, turn over its findings . . . and hope that DOJ will move.

So why would the Committee go to the trouble of referring to DOJ? Most obviously, to pressure DOJ to move, and to highlight the significance of its own findings.

The DOJ is already investigating. The Committee's referrals might only light a fire under that investigation. The referrals have no formal legal significance.

The Committee's "introductory material" to its final report is here.

CJ Roberts Allows Title 42 Policy to Stay in Place . . . For Now

Chief Justice Roberts issued an order today halting a district court ruling that struck the Trump Administration's Title 42 policy. The administrative stay means that the Title 42 policy will remain in place, notwithstanding the district court's ruling, until the Chief Justice or the full Supreme Court has a chance to consider the issue more thoroughly.

That could be soon. Chief Justice Roberts ordered that the government respond tomorrow, Tuesday.

The Title 42 policy orders U.S. immigration officials to turn away covered noncitizens from any country who try to enter through the Mexican or Canadian borders. This means that the U.S. government turns away asylum seekers from any country who enter through those borders. The Trump Administration adopted the policy in the putative interest of public health--reducing transmission of COVID-19--and purported to use CDC's authority to implement it. But the policy was widely seen as an effort simply to reduce and deter immigration through the Mexican border. Absent the policy, an individual who enters the U.S. even without authorization is entitled to apply for asylum in the U.S.

Today's moves started with a November 15 decision of the U.S. District Court for D.C. that the Title 42 policy violated the Administrative Procedure Act and set a deadline for Wednesday for the government to halt the program. A group of states sought to intervene in the appeal, but the D.C. Circuit said on Friday that they were too late. The states then applied to Chief Justice Roberts for a stay of the district court ruling. Chief Justice Roberts granted the stay, but put the case on a super-fast briefing schedule, suggesting that the Court could rule quickly on whether to stay the district court's ruling pending appeal and possibly take up the case itself.

Kentucky Supremes Strike State Private-School Funding Program

The Kentucky Supreme Court ruled this week that a state private-school funding program violated the state constitution. The ruling ends the program, unless and until state voters approve it in a ballot initiative.

The program created a nearly dollar-for-dollar tax credit for Kentucky taxpayers (individuals and corporations) who contribute to account-granting organizations (AGOs). AGOs then allocate taxpayer contributions to education opportunity accounts (EOAs) for eligible students. Students can use EOAs for qualifying educational expenses, including public school tuition, tutoring services, textbooks and instructional materials, and the like. In the eight state counties with more than 90,000 residents, students can use EOAs for private-school tuition. The court described the program more simply:

In simple terms, taxpayers, whether individuals or business entities, who otherwise owe state income tax can instead send that money to nonpublic schools via an AGO, reducing their tax liability and the state coffers by a corresponding amount. As the circuit court correctly observed, the legislation "allows this favored group of taxpayers to re-direct the income taxes they owe to the state to private AGOs, and thereby eliminate their income tax liability." This diversion of owed tax liability monies is made possible by the significant amount of state resources employed to create and operate the EOA program.

Kentucky's high court ruled that the program violated Section 184 of the state constitution. That provision says that state public-school (or "common school") funds can be used only for public-school education, unless Kentuckians vote otherwise. It reads,

The interest and dividends of said [common school] fund, together with any sum which may be produced by taxation or otherwise for purposes of common school education, shall be appropriated to the common schools, and to no other purpose. No sum shall be raised or collected for education other than in common schools until the question of taxation is submitted to the legal voters, and the majority of the votes cast at said election shall be in favor of such taxation. . . .

The court said that the program violated the plain terms of the Section by diverting public funds to private-school education.

The court noted that state voters could approve the program, pursuant to the terms of Section 184. If so, the program could come back. For now, though, the ruling ends the program.

 

 

 

Mixed Immunity Ruling in Fourth Circuit Prisoner Failure-to-Treat Claim

The Fourth Circuit issued a mixed ruling on qualified immunity to two different doctors, with very different roles, in a prisoner's Eighth Amendment failure-to-provide-adequate-treatment claim. The court also ruled that the treating physician enjoyed sovereign immunity from the prisoner's medical-malpractice claim.

The case, Pfaller v. Amonette, arose when a prisoner died from liver cancer after prison doctors failed to treat his hepatitis C. The plaintiff alleged that one of those doctors, Amonette, designed treatment guidelines that excluded the prisoner from receiving treatment. The plaintiff alleged that the other doctor, Wang, failed to provide necessary treatment.

The court ruled that Wang did not enjoy qualified immunity, but Amonette did. The court said that Wang failed to refer the prisoner for additional testing after his blood numbers showed that he qualified. The court rejected Wang's argument that he simply made a mistake. And it rejected his argument that the constitutional right wasn't clearly established at the time. On this last point, the court said that the relevant right was the right to receive adequate medical treatment free from deliberate indifference--and not the right (as Wang claimed) to schedule a specific type of follow-up test at a particular time. The court noted that the right to receive adequate medical treatment was well established.

In contrast, the court said that Amonette didn't interact with the prisoner at all, but instead "created a system of prioritization where the sickest inmates received treatment first." The court said that this prioritization was consistent with standards of the medical community and the Federal Bureau of Prisons when resources are limited. The court also noted that "various Courts of Appeals opinions have cut different ways regarding whether similar treatment guidelines pass constitutional muster or violate clearly established law." The court said that this "gray area" itself was enough to protect Amonette.

Finally, the court held that while Wang didn't enjoy qualified immunity from the Eighth Amendment claim, he did enjoy sovereign immunity (as a government employee, doing the government's work) from the medical-malpractice claim.

Officers Who Rely on Judgment of Jail Medical Unit Get Qualified Immunity, Seventh Circuit Says

The Seventh Circuit ruled that corrections officers who were tasked with transferring a pretrial detainee out of a county jail's medical unit enjoyed qualified immunity from the detainee's estate's civil rights suit for his death, because they relied on the judgment of jailhouse medical staff.

The ruling ends this part of the estate's lawsuit against the officers.

The case, McGee v. Parsano, arose when a diabetic detainee exhibited symptoms commonly associated with diabetic ketoacidosis, but was refused medical treatment because a jailhouse nurse thought he was faking. The detainee then died.

The detainee's estate sued officers who were tasked with transferring the detainee out of the medical unit just before his death. (The estate sued the medical staff, too, but that's not at issue in this case.)

The Seventh Circuit ruled that the officers enjoyed qualified immunity from the suit, because they relied on the judgment of medical staff in declining to provide treatment.

[C]orrections officers are not constitutionally obligated to override the judgment of medical professionals unless they have reason to know that an inmate is receiving inadequate treatment. This remains true even when an inmate is in obvious distress and even when the medical staff has misdiagnosed an inmate--or worse, accused him of faking a very real illness. * * * [A] corrections officer may trust jail medical professionals to provide inmates with appropriate medical care. There is accordingly no legal basis for McGee's contention that at the time of Carter's death, the law was clearly established in her favor.

Check it Out: Tsai's Civic Education and Democracy's Flaws

Check out Robert Tsai's Civic Education and Democracy's Flaws, Nomos:

This is an invited essay developing remarks made at the 2021 Annual Meeting of the American Society for Political and Legal Philosophy. I respond to Seana Shiffrin’s plea for increased investment in teaching legal knowledge as a way to revitalize civic education and enhance democratic engagement. First, while I applaud Shiffrin’s embrace of a robust conception of citizenship, I am doubtful that increased facility with legal methods will be sufficient to cure the ailments that afflict American democracy. Instead of creating more citizens who are technically proficient in the law, we must raise a generation of political diagnosticians. Second, beyond habits such as listening, truth-telling, and toleration, we must cultivate a capacity for righteous outrage, fear of role reversal, and wisdom in managing the multiplicity of relationships and identities in modern life. Otherwise, teaching legal proficiency could very well reinforce existing patterns of corruption or inequality. Third, when it comes to the content of civic education, we should select texts that help citizens draw connections between despised policies and the structural features of our political existence. In other words, we should show citizens how to reason from injustice.

Check it Out: Koppelman's Emerging First Amendment Right to Mistreat Students

Check out Andrew Koppelman's Emerging First Amendment Right to Mistreat Students, Case Western L. Rev.:

Under the long-settled tradition of religious liberty, religious people may not demand a right to invade and direct the public sphere, to alter the delivery of state functions in order to force their views upon nonadherents. Yet in two prominent cases, Kennedy v. Bremerton in the Supreme Court and Meriwether v. Hartop in the Sixth Circuit, courts have held that publicly employed teachers may exercise their First Amendment rights of free speech and religion even when doing so mistreats students.

In both cases, despite a long-established rule of deference to public employers’ need to control their own operations – and despite mighty efforts to accommodate difficult employees - public schools lost the capacity to protect students from misbehaving teachers. In each, the school proposed a solution that would give appropriate weight to each side’s most urgent interests. Not good enough, the court decreed: the religious side must be granted an absolute and uncompromising victory. It was oblivious to the countervailing interest. The language of privacy and autonomy was deployed to enable the religious to wield state authority and harm their students.

These are only two cases. But they come from high federal courts, one from the Supreme Court, and their similarity of approach, and resemblance to other recent treatments of religious liberty by the Court, is a reasonable basis for alarm.

No Bivens Cause of Action for "Systemwide" Conditions-of-Confinement Claim, Fourth Circuit Says

The Fourth Circuit ruled that a federal prisoner did not have a Bivens cause of action for a conditions-of-confinement claim under the Eighth Amendment. The ruling means that the prisoner can't sue federal officers for monetary damages for the Eighth Amendment violations that the prisoner alleged.

The ruling specifically follows, and is consistent with, the Supreme Court's hyper-narrowing and all-but-overruling Bivens in recent Terms.

The court in Tate v. Harmon said that the prisoner's claims arose in a "new context," and that "special factors" counseled hesitation in extending Bivens. Following the Supreme Court, the Fourth Circuit acknowledged the overlap in the two questions, and summarized them together:

In explaining above why Tate's claim arises in a "new context," we noted that his claim seeks to impose liability on prison officials on a systemic level, implicating the day-to-day operations of prisons, affecting the scope of the officials' responsibilities and duties, and implicating policy, administrative, and economic decisions. Determinations about the temperature at which to keep cells, the level of cleanliness at which prison employees or inmates themselves are to maintain cells, the adequacy of toilet paper and toothbrushes, and the length and thickness of mattresses are usually the subject of systemwide executive regulations. Moreover, providing a damages remedy for such inadequacies would involve not only decisions of acceptable human needs but also judgments regarding prison staffing levels, economic considerations, and the most efficient procedures for addressing the inadequacies. . . . We conclude that in this context, the political branches are indeed "better equipped to decide whether existing remedies should be augmented by the creation of a new judicial remedy." This is especially so because we are ill-suited to "predict the systemwide consequences of recognizing a cause of action under Bivens," and even our "uncertainty" on that question "forecloses relief."

Ninth Circuit Rules for Student who Sought to Wear Feather at Graduation

The Ninth Circuit last week ruled in favor of a member of the Sisseton Wahpeton Oyate tribe and graduating high-school student who sought to wear a feather on her cap during graduation ceremonies. The ruling reverses a district court's dismissal of the case and allows it to move forward.

The case, Waln v. Dysart School District, arose when the student asked permission to wear an eagle feather on her graduation cap in honor of her religious beliefs and to pay respect to her ancestors. The district denied permission, pointing to a policy that prohibits students from adding any decoration to their cap or gown. The student showed up at graduation with a feather, and school officials denied her entry. She sued, arguing that the district violated her free speech and free exercise rights, given that other students appeared at the ceremony with secular decorations on their caps.

The district court dismissed the case, but the Ninth Circuit reversed.

The court held that the student plausibly pleaded that school officials treated her differently than other students who decorated their caps with secular messages. The court said that this rendered the policy not generally applicable (under free exercise) and viewpoint based (under free speech).

The court then rejected the district's claim that compliance with the Establishment Clause justified its actions. "[T]he District has not sufficiently met its burden, at this stage, to show that accommodating religious dress for an individual student would have any effect on other students' rights."

Ninth Circuit Affirms District Court Abstention Pending State-Court Eminent Domain Action

The Ninth Circuit ruled last week that a federal district court was right to abstain from proceeding on the plaintiffs' regulatory takings claim when a state court was considering an eminent domain action on the property.

The court in Gearing v. City of Half Moon Bay rejected the plaintiffs' claim that federal court Pullman abstention amounted to a state-forum exhaustion requirement, rejected by the Supreme Court.

In English: The Supreme Court ruled in Knick v. Township of Scott and Pakdel v. City and County of San Francisco that a plaintiff need not exhaust state-forum proceedings before lodging a Takings Clause challenge in federal court. This means that a plaintiff can bring a case in federal court to challenge a taking, even as any state-forum proceeding is still pending.

At the same time, on a different front, federal courts can abstain from ruling on a constitutional question when there's a pending state-court challenge, if the case touches on a sensitive area of social policy, the state proceeding could narrow or eliminate the federal constitutional question, and state law is uncertain. That's Pullman abstention.

In this case, the plaintiffs filed a claim in federal court arguing that the City's rejection of the plaintiffs' development plan amounted to a regulatory taking. The City then filed an eminent domain action in state court. The City also filed a motion to abstain in the federal case. The district court granted the motion.

On appeal, the plaintiffs argued that abstention would force them to litigate their federal takings claim in state court, which would functionally require them to exhaust state-forum proceedings in violation of Knick and Pakdel.

The Ninth Circuit disagreed. The court said that those cases addressed exhaustion, not abstention. The court said that even if they preclude abstention in some other case, they don't preclude abstention in this case. That's because the state court could adjudicate the eminent domain action without reaching the plaintiffs' regulatory takings claim--because eminent domain and regulatory takings suits lead to different compensation for different injuries. Finally, the court ruled that the requirements of Pullman abstention were satisfied in this case.

Digital Millennium Copyright Act Doesn't Violate Free Speech, D.C. Circuit Rules

Steven D. Schwinn, University of Illinois Chicago School of Law

The D.C. Circuit ruled this week that the DMCA doesn't violate the First Amendment rights of an inventor who wanted to create and sell a device that would circumvent technological protection measures for copyrighted digital content.

The case, Green v. U.S. Department of Justice, tests the DMCA's prohibition on "circumvent[ing] a technological measure that effectively controls access to a [copyrighted work]," or trafficking in technology, product, or service that "is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a [copyrighted] work."

Andrew "bunnie" Huang said that he wanted to create and sell a device that would so circumvent, and that he also wanted to publish his computer code to share with others. He brought a pre-enforcement challenge to the DMCA under the First Amendment.

The D.C. Circuit ruled that he's unlikely to succeed on the merits. (The case came to the court on Huang's appeal of the district court's denial of a preliminary injunction.) The court held that Huang's code was, indeed, speech, but that the DMCA was a content-neutral regulation, because the statute "cares about the expressive message in the code 'only to the extent that it informs' the code's function." (Quoting City of Austin v. Reagan National Advertising (2022)). The court then held that the DMCA easily passed intermediate scrutiny: it furthers an important or substantial government interest in protecting copyrighted work; the government interest is unrelated to the suppression of free expression; and the incidental restriction on free speech is no greater than necessary to advance that interest.

Court to Hear Case on Independent State Legislature Theory

The Supreme Court will hear oral argument tomorrow in Moore v. Harper, the case testing whether a state legislature has plenary power over federal elections in the state, unconstrained by state courts. Here's my argument preview, from the ABA Preview of United States Supreme Court Cases, with permission:

Case at a Glance

In November 2021, the North Carolina legislature adopted a new map for its congressional districts. The North Carolina Supreme Court ruled that the map violated the state constitution, however, and, pursuant to state law, a lower state court issued a temporary replacement map. State legislative leaders and other state officials challenged the state-courts’ power to override the legislature’s congressional map, arguing that the state-courts’ actions violated the Elections Clause in the U.S. Constitution.

INTRODUCTION

The Elections Clause says that a state’s “Legislature” has authority to regulate federal elections, including drawing legislative maps for congressional districts. Legislative leaders and state officials argue that this means that the legislature, and the legislature alone, has plenary power to regulate elections in whatever ways it wants. Voters and voting-rights groups counter that the “Legislature” refers to the entire state lawmaking apparatus, consistent with state law and the state constitution, as interpreted and enforced by the state courts.

ISSUE

Does the Elections Clause give plenary power to a state legislature to regulate federal elections, without regard to state law and its own state constitution, as interpreted by the state courts?

FACTS

On November 4, 2021, the North Carolina General Assembly enacted a new map for the state’s congressional districts. Individual voters and voting-rights groups sued state legislative leaders and other state officials in state court to halt the state’s use of the map, however, alleging that it amounted to an extreme partisan gerrymander in violation of the North Carolina Constitution. (The plaintiffs also challenged the state legislative maps, but those challenges aren’t a part of this case.)

Pursuant to state law, the Chief Justice of the North Carolina Supreme Court appointed a three-judge panel to preside over the case. (North Carolina law provides that lawsuits “challenging the validity” of legislative maps shall be heard by special three-judge panels.) The court declined to halt the state’s use of the map, reasoning that voters and voting-rights groups were unlikely to establish standing and that their claims were nonjusticiable political questions.

The plaintiffs then sought relief in the North Carolina Supreme Court. The state Supreme Court granted a preliminary injunction, delayed the state’s primary election until May, and remanded the case to the trial court for expedited proceedings.

On remand, the three-judge trial court unanimously found that the map was an “extreme partisan outlier[]” resulting from “intentional, pro-Republican partisan redistricting.” The court found that the map was “intentionally and carefully designed to maximize Republican advantage.” But the court again ruled that partisan gerrymandering claims were nonjusticiable political questions, and again upheld the map.

The North Carolina Supreme Court reversed. The state high court first ruled that the voters and voting-rights groups had standing and that their claims were justiciable. On the merits, the court ruled that the map violated several provisions of the state constitution. In short, the court held that the map violated the voters’ rights “to cast votes that matter equally.”

The court considered the legislative leaders’ argument that the Elections Clause in the U.S. Constitution barred the court’s review of the map. But the court ruled that the legislative leaders waived that argument, because the legislative leaders hadn’t raised it in the trial court. Still, the court wrote that the argument was “repugnant to the sovereignty of states, the authority of state constitutions, and the independence of state courts.”

The state Supreme Court remanded the case to the trial court. Pursuant to state law, the court provided the state legislature “the opportunity to submit new congressional and state legislative districting plans that satisfy all provisions of the North Carolina Constitution.” (Under state law, if a state court concludes that a map is unconstitutional, it must give the legislature at least two weeks to “remedy [those] defects.”)

The state legislature enacted a new congressional map and submitted it to the trial court for review. The trial court ruled that this new map, too, violated the state constitution. Pursuant to state law, the trial court then adopted a map drawn by three special masters (which the court appointed) for use in the 2022 election only. (Under state law, if a state court rules that a map is unconstitutional, and if the legislature fails to “remedy [those] defects,” “the court may impose an interim districting plan for use in the next general election only.”) The court’s map adjusted the legislature’s proposed map, but only as necessary “to bring it into compliance” with the state constitution.

The legislative leaders sought a temporary stay of the trial court’s order in the North Carolina Supreme Court. But the state high court denied the motion.

The legislative leaders then sought emergency relief at the U.S. Supreme Court, arguing that the state courts’ rulings violated the Elections Clause in the U.S. Constitution. (This is the same argument that the legislative leaders raised at the North Carolina Supreme Court.) The Court declined to intervene, although four justices acknowledged the importance of the issue and expressed interest in hearing the case on its regular docket. The Court later agreed to hear the case.

In the meantime, the legislative leaders’ appeal remains pending before the state Supreme Court. The court heard oral argument on October 4. A decision is expected later this year.

CASE ANALYSIS

This case tests the role of “the Legislature” in federal elections under the Elections Clause of the U.S. Constitution. That Clause reads in full,

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of ch[oo]sing Senators.

The legislative leaders argue first that the plain language of the Clause means that only a state “Legislature” can set the rules for federal elections, including drawing the state’s congressional map. The leaders say that the Constitution’s Framers used this language deliberately, as evidenced by their consideration and rejection of a plan to delegate this authority instead to each state as a whole. (This alternative would have included each states’ entire lawmaking apparatus, including state-court judicial review of a state legislature’s actions, and not just a state “Legislature.”) They claim that this reading—that state legislatures have the exclusive authority to regulate federal elections—makes sense in the context of our federalism system. According to the leaders, that’s because state constitutional limits (enforced by the state courts) have no force “against acts governed by the federal Constitution.” The leaders say that this reading is also consistent with early state practice, when “[t]he vast majority of States—21 out or 24, by 1830—did not impose any express state-constitutional restrictions on the regulation of federal elections.” They say that this reading is consistent with Court precedent, too.

The legislative leaders argue next that the North Carolina legislature did not delegate its authority to regulate federal elections to the state courts. They say that the state legislative mechanism authorizing state-court judicial review of the legislature’s congressional map itself violates the Elections Clause (because the legislature cannot delegate its exclusive power over federal elections at all). But even if the legislature can delegate some of its power, the leaders claim that the state-court rulings in this case far exceeded that delegable power, because their rulings amounted to “unmoored policy determination[s] deciding how much partisanship is permissible in redistricting.”

The voters and voting-rights groups counter (in two separate briefs) that the North Carolina legislature properly regulated federal elections by enacting state law that delegated authority to the state courts to review congressional districting to ensure that it complies with the state constitution. They say that the state courts acted pursuant to that authority in striking the legislature’s congressional map and issuing a temporary one. And they assert that the Court has no authority to second-guess the state courts over their own interpretation of state law or their own state constitution.

The voters and voting-rights groups argue next that even if the Court addresses the defendants’ arguments, those arguments are wrong. The voters contend that the text, history, and precedent all demonstrate that “the Elections Clause does not free state legislatures from the requirements of their state constitutions,” as interpreted by their state courts. As to text, the voters argue that “[a]t the founding, the word ‘legislature’ was universally understood to mean a body created and constrained by its constitution” and subject to ordinary and widely practiced judicial review by state courts. As to history, they say that over three-quarters of all state constitutions adopted or amended soon after ratification directly regulated federal elections, and ever since states have regulated federal elections through their constitutions. As to precedent, they contend that the Court has consistently ruled that state legislatures are bound by their constitutions when they regulate federal elections.

Finally, the voters and voting-rights groups argue that the legislative leaders’ theory would upend the way states currently regulate elections and lead to significant and widespread election problems. They say that the leaders’ theory could lead to confusion, protracted litigation, and even separate state and federal elections; it could also nullify state constitutional provisions that regulate or touch on federal elections, and eliminate any judicial remedy to ensure that state legislatures follow their own laws. According to the voters, the leaders’ attempts to avoid these problems by cabining their theory only underscore its implausibility. For example, the voters say that the leaders’ concession that state legislatures must follow “procedural” constitutional constraints, but not “substantive” constitutional constraints, has no basis in text, structure, history, or precedent. The voters say the same for the leaders’ distinction allowing state-court rulings that enforce “specific” rules but not “open-ended” ones.

SIGNIFICANCE

This case tests a novel approach to state legislative power over congressional elections, called the independent state legislative theory. That theory holds that state legislatures have plenary power over congressional elections, regardless of the constraints imposed by their own state constitutions. The strongest version of the theory says that state legislatures have absolute control over these elections, irrespective of any constraints in their state laws or state constitutions. This could mean, for example, that state legislatures acting alone could draw congressional districts or establish rules for congressional elections that would otherwise violate substantive individual rights and procedural requirements in their state laws and state constitutions—and that the state courts and other state authorities would be powerless to override them. Weaker versions of the theory hold that state legislatures have principal control over these elections, but that state law or state constitutions can impose some constraints. For example, weaker versions may require the legislature to follow certain procedures, or limit state-court review of a legislature’s action so that the state courts don’t override the legislature’s policy choices.

In modern times, the theory had its highest-profile appearance at the Court in Chief Justice William Rehnquists’s concurring opinion in Bush v. Gore. 531 U.S. 98 (2000). Chief Justice Rehnquist concurred with the per curiam decision reversing the Florida Supreme Court’s order requiring manual recounts in that hotly contested election. But he invoked an alternative basis for that conclusion: the Electors Clause. That Clause, like the Elections Clause, uses the term “legislature,” but for a different purpose. It provides that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct,” electors for President and Vice President. Quoting a much earlier case, McPherson v. Blacker, 146 U.S. 1 (1892), Chief Justice Rehnquist wrote that the Electors Clause “convey[s] the broadest power of determination” and “leaves it to the legislature exclusively to define the method” of appointment. A significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question.” This was not the opinion of the Court, however; instead, Chief Justice Rehnquist wrote only for himself and Justices Antonin Scalia and Clarence Thomas.

More recently, Chief Justice John Roberts fiercely defended a version of the theory in his dissent in Arizona State Legislature v. Arizona Independent Redistricting Commission. 576 U.S. 787 (2015). Chief Justice Roberts, at great length, traced the text, history, and precedent of the Elections Clause to argue that an independent redistricting commission, created by a voter-driven ballot initiative, impermissibly stripped authority from the state legislature to draw congressional districts. Chief Justice Roberts seemed to articulate a relatively weaker version of the theory, however, which might allow for some restrictions on a state legislature (in particular, procedural restrictions). He was joined in his dissent by Justices Scalia, Thomas, and Samuel Alito. The Court in that case, after its own exhaustive examination of the text, history, and precedent of the Elections Clause, flatly rejected the theory. The Court instead held that “the Legislature” includes the state’s broader lawmaking process, including, in that case, ballot initiatives.

(As the competing opinions in Arizona State Legislature suggest, text, history, and precedent will play important roles in this case. Especially history. The parties sharply disagree about the original meaning of “the Legislature” in the Elections Clause. As so much recent scholarship has demonstrated, the plaintiffs have the far better case. Still, look for the Court to probe the historical evidence on both sides.)

Most recently, in this very case, the theory had an appearance when the Court first declined to intervene on an emergency basis. Justice Brett Kavanaugh concurred, and wrote that “the underlying Elections Clause question . . . is important” and that the Court should “definitively resolve it.” Justice Alito, joined by Justices Thomas and Neil Gorsuch, dissented, and argued that the North Carolina courts’ rulings violated the Elections Clause (or at least that the defendants’ “argument is stronger”). 

All this means that four or five justices already seem to endorse some version of the independent state legislature theory.

If the Court adopts the theory, the implications could be revolutionary. As the plaintiffs and their amici explain, the theory could completely upend how we conduct elections. The theory could threaten everything from state-court-ordered redistricting (as in this case) to independent commissions (as in Arizona State Legislature) to routine executive enforcement of state election law (for example, when a state executive officer orders accommodations to protect the right to vote). At the extreme, the theory could empower a state legislature to disregard any state statutory or constitutional provision, and to bypass any other coordinate branch of state government. Any efforts to cabin the theory to avoid some of these results could create their own problems, as the plaintiffs explain in response to the defendants’ suggested limits.

And more. If the Court adopts the independent state legislature theory as to the Elections Clause, some state legislatures could read that as an open invitation to apply the theory to the Electors Clause. Unless the Court somehow cabined such a ruling, state legislatures could read such a ruling to authorize them to appoint presidential electors any way they see fit, irrespective of the popular vote in their state. This was one theory that former President Trump’s team pushed when it tried to persuade certain state legislatures to appoint their electors to him in the 2020 presidential election. If the Court adopts the theory, it could, as a practical matter, empower such a move in the next presidential election. (To be sure, there are textual differences between the Elections Clause and the Electors Clause such that the independent state legislature could apply differently. But that might not matter to a state legislature bent on regulating an election in a particular way or appointing electors to a particular candidate.)

With all this at stake, there is an easy way for the Court to avoid these problems, while still acknowledging that state legislatures play an important role in regulating congressional elections. The Court could simply recognize that the North Carolina legislature properly regulated federal elections by delegating authority to review congressional districting to the state courts. The Court could issue such a ruling without determining the precise scope or sweep of the state legislature’s authority; it could simply acknowledge that the state legislature has regulated congressional elections, and that the state’s lawmaking apparatus acted consistently with its regulatory scheme.

Check it Out: Tang's Who's Afraid of Carson v. Makin?

Aaron Tang, Who's Afraid of Carson v. Makin?, 132 Yale L. J. Forum 504 (2022):

How worried should progressives be about the Supreme Court’s latest ruling in favor of publicly funded religious schools?

Maybe less than we have assumed. In this Essay, I argue that Carson v. Makin—which struck down Maine’s policy of excluding religious private schools from its publicly funded tuition-aid program—may have surprisingly limited repercussions for a cautiously hopeful reason. By enacting a statute that explicitly prohibits all private schools from discriminating against LGBTQ students, Maine’s progressive lawmakers simultaneously protected a vulnerable student population, limited church/state entanglement, and preserved the state’s commitment to public education. In other words, Carson teaches much about the Court’s strident efforts to shift the law further to the right. But its most important lesson may have more to do with how progressives can best respond to a Court that has forsaken us: through smart and impactful lawmaking.

Check it Out: Re's Should Gradualism Have Prevailed in Dobbs?

Richard M. Re, Should Gradualism Have Prevailed in Dobbs?, SSRN:

Gradualism should have won out in Dobbs v. Jackson Women’s Health, exerting gravitational influence on the majority and dissenters alike. In general, the Supreme Court should not impose massive disruption without first providing notice of its contemplated course of action. Only the Chief Justice followed that principle, and as a result his decision is the most compelling of the bunch. By contrast, the majority opinion sometimes claimed to be strictly formalist, particularly when doing so helped it dismiss prudential objections. Yet the majority’s most plausible rationale was, inevitably, steeped in judicial statecraft. In essence, the majority claimed that only grand, decisive action could meet the challenge at hand. But by acting in haste, the Court compromised its own deliberative process and prevented the public from adequately preparing for an avulsive shift in the law. The joint dissent’s treatment of precedent was, if anything, even less persuasive. The dissent’s own uses of precedent demonstrate how readily case law is thrown overboard – not just in the past few years, but throughout many decades. And new personnel can offer a uniquely compelling basis for revisiting case law. So, if the majority had reason to moderate, the dissenters did, too – by joining a gradualist opinion like the Chief’s.

Check it Out: Kalhan's Judicial Illiberalism

Anil Kalhan, Judicial Illiberalism: How Captured Courts are Entrenching Trump-Era Immigration Policies, 27 Bender's Immigration Bulletin 1971:

When President Joe Biden took the oath of office, expectations ran high for major changes in immigration policy. While Biden’s predecessor had implemented the most far-reaching anti-immigration program in nearly a century, the Trump presidency never garnered strong public or congressional support for its immigration restrictionist initiatives. Even as xenophobia rapidly took hold among many within the Republican Party’s political, media, and legal elites, polls steadily found that substantial majorities of Americans opposed the Trump immigration agenda. With this reservoir of popular support, Biden forcefully pledged as a candidate not only to take “urgent action to end the Trump Administration’s draconian policies,” but also to restart “the work of building a fair and humane immigration system.” And within hours of assuming office, his administration began dismantling Trump’s legacy.

More than one-and-a-half years later, the Biden administration’s progress in rolling back Trump’s anti-immigration legacy has been decidedly uneven. While some of the responsibility lies squarely with the White House itself, no less disquieting have been the ways in which right-wing politicians have enlisted a phalanx of reliably partisan Trump-appointed judges to actively subvert Biden’s immigration agenda. Together with other conservative judges, these Trump appointees have demonstrated an eagerness to perpetuate the anti-immigration policies of the candidate who voters decisively rejected in 2020, often deploying irregular methods and suspect legal reasoning to do so. The manner in which these judicial appointees have kneecapped the Biden immigration agenda offers a revealing window into how a federal judiciary increasingly captured by conservative extremists may continue to operate as an active, enthusiastic collaborator in efforts to entrench illiberal, antimajoritarian power and right-wing policies, across a range of substantive domains, for years to come.

Supreme Court to Test Free Speech Against Anti-Discrimination

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court will hear arguments on Monday in 303 Creative v. Elenis, the case testing whether a website designer's free-speech claim trumps a state's anti-discrimination law. Here's my Preview, from the ABA Preview of United States Supreme Court Cases, with permission:

INTRODUCTION

The First Amendment prohibits government from compelling speech, and from regulating speech based on its content and viewpoint. But on the other hand, the First Amendment allows the government to regulate conduct, even if the regulation has an incidental effect on speech, so long as the regulation is unrelated to the expression of ideas. And it allows the government more freedom to regulate commercial speech. This case pits these First Amendment principles against each other.

ISSUE

Can a website designer refuse to create a website for a same-sex wedding, even though state law prohibits discrimination by sexual orientation?

FACTS

Lorie Smith is a graphic artist and website designer. She is the sole owner of 303 Creative, her custom design studio, where she provides website and graphic design, branding, marketing strategy, and social-media management services to her clients.

Smith will serve any client, regardless of race, creed, sexual orientation, or gender. But she will not create content that contradicts her Christian beliefs. So, for example, she “will decline any request—no matter who makes it—to create content that contradicts the truths of the Bible, demeans or disparages someone, promotes atheism or gambling, endorses the taking of unborn life, incites violence, or promotes a concept of marriage that is not solely the union of one man and one woman.”

Smith expanded her portfolio to include custom wedding content and websites. According to Smith, “[e]very one of [her] wedding websites will not only express messages about the beauty and eternal commitment of the couples, but will also express approval of the couple’s marriage.” Smith designed a sample of a wedding website that includes a Bible passage, but the website doesn’t otherwise reflect the content of potential future websites. Smith says that her websites will bear a notice that reads, “Designed by 303Creative.com.”

Smith also designed a 303 Creative website page that announced her new wedding services. The design includes a statement that God is calling Smith “to explain His true story about marriage, and to use the talents and business He gave [Smith] to publicly proclaim and celebrate His design for marriage as a life-long union between one man and one woman.” The statement goes on:

These same religious convictions that motivate me also prevent me from creating websites promoting and celebrating ideas or messages that violate my beliefs. So I will not be able to create websites for same-sex marriages or any other marriage that is not between one man and one woman. Doing that would compromise my Christian witness and tell a story about marriage that contradicts God’s true story of marriage—the very story He is calling me to promote.

Smith says that she “cannot yet share that message,” however, because “Colorado forbids it on pain of investigation, fines, and re-education.” Smith is referring to two provisions in the Colorado Anti-Discrimination Act, or CADA. The first, the Accommodations Clause, prohibits businesses that sell or offer services “to the public” from discriminating based on “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.” The second, the Communications Clause, prohibits businesses from “display[ing]” a “notice” that “indicates that the full and equal enjoyment of the goods [or] services . . . will be refused, withheld from, or denied an individual or that an individual’s patronage or presence at a place of public accommodation is unwelcome, objectionable, unacceptable, or undesirable” based on a protected characteristic.

Smith brought a pre-enforcement challenge to CADA and sought an injunction halting its enforcements. She alleged that the two provisions violated her free-speech rights because they would require her to create websites for same-sex weddings. The district court ruled against Smith, and the United States Court of Appeals for the Tenth Circuit affirmed. This appeal followed.

CASE ANALYSIS

This case involves several different free-speech doctrines, and pits them against each other. On the one hand, the compelled-speech doctrine says that the government cannot require individuals to communicate a message they do not wish to communicate. In addition, the general rule against content- and viewpoint-based restrictions says that any government regulation of speech based on the content or the viewpoint of the speech must be narrowly tailored to meet a compelling government interest. (That test is called “strict scrutiny.”)

On the other hand, the conduct-as-speech doctrine allows the government to regulate speech that is incidental to conduct at a lower level of scrutiny (“intermediate scrutiny”), so long as the regulation is not related to the expression of ideas. Moreover, the commercial-speech doctrine allows the government to regulate speech promoting a commercial exchange also at a lower level of scrutiny.

The parties frame their arguments around these competing doctrines.

Smith argues first that CADA compels her to speak in violation of the First Amendment. She says that her wedding websites amount to “pure speech,” and that CADA, by requiring her to create websites for weddings that contradict her beliefs, impermissibly compels her to speak in violation of her free-speech rights.

Smith points to Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), in support of her claim. The Court in that case ruled that the First Amendment allowed the organizers of a public parade celebrating Irish heritage to exclude an LGBTQ+ group, even though anti-discrimination law prohibited the organizers from discriminating on the basis of sexual orientation. Smith says that under Hurley when an anti-discrimination law “makes ‘speech itself . . . the public accommodation,’ and forces someone to ‘alter’ their ‘expressive content,’ the government must satisfy strict scrutiny,” which it cannot do here. According to Smith, Hurley applies squarely to her case: “CADA makes an artist’s speech the accommodation, and Colorado’s application of the law to an artist like Smith forces her to alter her expressive content in untenable ways.”

Smith contends that she does not lose her free-speech rights just because she creates speech as part of her business. She says that CADA’s application to her speech is not “incidental” to her conduct; instead, CADA directly regulates her “pure speech.” Moreover, she claims that she is not a “passive conduit” for her client’s messages; instead, she creates the messages herself, and “retains final editorial control over them.” Smith claims this is “[her] speech and her message.”

Smith argues next that CADA’s two provisions impermissibly regulate her speech based on its content and its viewpoint. She says that both provisions require her to promote content and a viewpoint that she finds objectionable—any marriage other than one between one man and one woman. Smith claims that CADA does not serve a compelling interest in enforcing the two provisions, because, while a state may have a general interest in protecting equal access to the marketplace, it has no compelling interest in “ensuring [general] access to a particular person’s unique, artistic product.” Moreover, she contends that CADA is not narrowly tailored, because the state “has numerous, less burdensome alternatives to achieve any legitimate interests it might articulate.” For example, Smith says that “Colorado could interpret CADA to allow speakers who serve all people to decline specific projects based on their message,” it could “enact[] textual exemptions for artists who decline projects based on their messages,” it could exempt services for the “wedding industry,” or it could limit CADA’s reach to “physical spaces.” 

Finally, Smith argues that neither the anti-discrimination context nor the topic of marriage “justifies an exception to th[e] cardinal rule” that government cannot “violate artists’ freedom of conscience or compel them to ‘mouth support for views they find objectionable.’”

The state counters that CADA regulates Smith’s business, not her speech. The state says that a business like 303 Creative can decide for itself what it would like to sell. A business can even define its services quite narrowly, for example, “only websites that include biblical quotes describing marriage as the union of one man and one woman.” But the state contends that once a business decides what to sell, CADA requires the business to sell “to all without regard to a customer’s protected characteristic.” In other words, according to the state, CADA regulates sales, not the services or products sold. And “it does not prohibit or compel the speech of any business.”

Moreover, the state says that CADA does not regulate expressive conduct. According to the state, “[r]outine commercial transactions do not become expressive conduct just because the business believes a sale would convey approval of the buyer.” But to the extent that the Court “needs to consider the content of the Company’s websites to determine whether the Company will deny equal access to its services,” the state says that the case is not yet ripe for judicial review. According to the state, that’s because nobody has asked Smith to create a website for a same-sex marriage (although Smith claims that she received an inquiry), and the state has not required her to create such a website.

The state argues next that even if the Accommodations Clause burdens Smith’s speech, the burden is “incidental,” that is, not related to the expression of Smith’s ideas. As such, the state says that the Clause is subject to a lower level of review, intermediate scrutiny, and easily passes.

But even if the Court were to apply strict scrutiny, the state argues that the Accommodations Clause passes muster. The state claims that it has a compelling interest “in ensuring equal access to publicly available goods and services”—an interest that is “rooted in this nation’s history and traditions, which has long recognized both the material and dignitary harms of the denial of service.” Moreover, the state contends that the Accommodations Clause is narrowly tailored to meet this interest, because “[i]t targets only specific commercial conduct: the discriminatory sale of products and services by businesses open to the public.” The state contends that Smith’s proposed exemptions (which purport to show why CADA is not narrowly tailored) “would upend antidiscrimination law—and other laws too”—by “depart[ing] from this Court’s doctrine and creat[ing] an enforcement regime riddled with uncertainty and inconsistency.”

Finally, as to the Communications Clause, the state argues that “[i]t prohibits only commercial speech that facilitates illegal conduct—expression that receives no free speech protection.” The state says that the Communications Clause does not prohibit Smith from expressing her views; it only prohibits her from advertising that she will deny equal access to her services.

The government weighed in as amicus to support the state. It makes substantially similar arguments.

SIGNIFICANCE

If this case seems familiar, that’s because it is. Ever since states started to recognize same-sex marriages, wedding-service providers have challenged state anti-discrimination laws as violating their rights to free exercise of religion and free speech. The Court famously ruled in one of these cases just four years ago. In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 (U.S.)__ (2018), the Court ruled that the Colorado Civil Rights Commission’s application of CADA—the same CADA that’s at issue in this case—violated a cakebaker’s free-exercise right to refuse to bake a cake for a same-sex wedding. The Court held that some of the commissioners’ statements reflected anti-religious animus against the cakebaker, and therefore the Commission’s ruling against the cakebaker violated the Free Exercise Clause.

This case is the fully anticipated follow-up to Masterpiece. But unlike Masterpiece, this case comes to the Court as a free-speech case. (The cake-baker in Masterpiece also raised a free-speech claim, but the Court did not take it up.) It thus gives the Court yet another chance to test individual constitutional rights against a state’s anti-discrimination laws, albeit under a different doctrine.

As a free-speech case, 303 Creative will force the Court to navigate some distinctive landmines with roundly discredited historical antecedents. For example, Smith’s proposed statement echoes and amplifies earlier statements by many commercial establishments that they will not serve individuals of a particular race, ethnicity, or nationality. Similarly, Smith’s proposed exception from anti-discrimination laws echoes and amplifies earlier statements by many commercial establishments and individuals that they have a free-speech or free-association right to discriminate, anti-discrimination laws notwithstanding.

Smith tries to provide the Court with a roadmap through these landmines. She does this by focusing narrowly on her work as an “artist” with a creative message (and not just an ordinary business), who proposes to work in a particular area, weddings, where views can be strong and mixed. It’s not at all clear that Smith’s roadmap actually dodges the landmines, though. As the state contends, her efforts to narrow her case and distinguish her work may simply create confusion and uncertainty as to the application of anti-discrimination law.

This could mean that any ruling for Smith would open the door wide for other exemptions from anti-discrimination laws. For example, even a narrow ruling for Smith could invite other individuals and businesses to cast themselves as “artists,” or define their work as serving a particular market that is inextricably tied up with speech. (It’s easy to see how any variety of individuals and businesses could lodge these claims.) It could also invite individuals and businesses to seek exemptions from anti-discrimination laws for those discredited historical practices, mentioned above. Given the nature of this case (in contrast to Masterpiece, where there was a record of enforcement), there may be no obvious way for the Court to rule for Smith while not effectively drilling a tunnel through anti-discrimination laws.

One final observation. The Court’s jurisprudence in this area—testing First Amendment rights against anti-discrimination laws—seems to treat laws protecting against LGBTQ+ discrimination less favorably than it treats laws protecting against other kinds of discrimination. The Court doesn’t specifically acknowledge this, however, much less provide a principled reason for the difference.

If the Court rules for Smith, it may have to say that quiet part out loud. In other words, it may have to explain why free speech protects Smith’s statements that she won’t create websites for same-sex weddings, even if free speech would not protect her statements that she won’t create websites for, say, Black weddings. Any attempt to explain this difference could prove exceedingly embarrassing (and uncomfortably revealing) for the Court. Yet a ruling for Smith without this explanation will simply invite the next inevitable case, testing whether free-speech protects a business’s announcement that they will not serve Black people.

 

Ninth Circuit Upholds California's Recall Process

Steven D. Schwinn, University of Illinois Chicago School of Law

The Ninth Circuit this week rebuffed a challenge to California's recall process. The ruling means that the process stays in place.

The case, Clark v. Weber, arose when a voter who opposed the recall of Governor Newsom argued that the state's recall process violated the Constitution. Under the process, voters first vote whether to recall the official. If a majority votes to recall, the official is recalled. Voters next vote for a replacement (in case the first vote results in a recall). Any candidate for replacement who gets a plurality wins (again, assuming that the first vote results in a recall). The incumbent cannot run as a candidate in that second vote.

Clark argued that the process violated one-person-one-vote, because, as a Newsom supporter, he only had one vote (in the first part of the process), whereas voters who opposed Newsom had two votes. He also argued that an incumbent must receive a majority to stay in office, whereas a challenger needs to get only a plurality.

The court rejected both theories. The court said that California's process is really two separate elections run together, and that everyone gets a vote in both. To the extent that Clark's choices don't include the incumbent in the second election, the court said that this wasn't a severe restriction on the right to vote. (The court analogized the exclusion of the incumbent to term-limit laws, which the courts have upheld). The court said that the state easily justified this restriction based on its important interest in maintaining the efficacy of its recall procedure.