Constitutional Law Prof Blog

Daily Read: Retired Justice O'Connor on Bush v. Gore

Speaking to the Chicago Tribune editorial board, retired Justice Sandra Day O'Connor reportedly stated that the Court took the case of Bush v. Gore

"and decided it at a time when it was still a big election issue. Maybe the court should have said, 'We're not going to take it, goodbye.'" 

The case, she said, "stirred up the public" and "gave the court a less-than-perfect reputation."

"Obviously the court did reach a decision and thought it had to reach a decision," she said. "It turned out the election authorities in Florida hadn't done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day."

This falls far short of a statement that O'Connor regretted her decision in the infamous Bush v. Gore, as some have concluded.

 

President George W. Bush speaks via phone to Associate Supreme Court Justice Sandra Day O'Connor Friday, July 1, 2005, shortly after she submitted her letter of resignation citing personal reasons. The letter sits on the desk. White House photo by Paul Morse.

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States Can Restrict FOIA Laws to Own Citizens, Court Says

A unanimous Supreme Court ruled today in McBurney v. Young that a state can restrict its own freedom of information law to its own citizens without violating the Privileges and Immunities Clause or the dormant Commerce Clause.  We covered oral arguments here.

The ruling puts an exclamation point behind the idea that there's no fundamental right to public records.  If there were any doubt going into the case, this ruling settled the matter: Our Constitution doesn't require freedom of information.  If you want it, take it up with your legislature.

The case arose out of two out-of-state claimants' efforts to get Virginia state records through the state FOIA.  One of those claimants, McBurney, sought records related to the state's 9-month delay in enforcing a child support order that he had against his ex-spouse, a Virginia resident.  The other, Hurlbert, sought state real estate tax records on half of his clients.  The state didn't provide the requested records pursuant to its FOIA, however, because its FOIA extends only to state citizens.  (It did provide most of the records through other means.)  Both McBurney and Hurlbert sued, arguing that the FOIA violated the Article 4 Privileges and Immunities Clause and the dormant Commerce Clause.  

The Court disagreed.  In an opinion by Justice Alito, the Court said that the FOIA doesn't interfere with a fundamental right in violation of the Privileges and Immunities Clause.  It said that the FOIA doesn't violate the opportunity to pursue a common calling, because the law wasn't designed to provide a competitive advatage for Virginia citizens.  It doesn't violate the right to own or transfer property in Virginia, because Virginia makes the necessary records available through the clerks of its circuit courts (even if not through its FOIA).  The FOIA doesn't violate the right to gain equal access to Virginia courts, because its citizens-only application leaves open "reasoanble and adequate" access to the courts (because state procedure allows discovery and subpoenas, which would provide noncitizens with any relevant and nonprivileged information, and state law allows equal access to judicial records).  And it doesn't violate a claimed right to gain access to public information on equal terms, because, well, there is no such right.

The Court also rejected Hurlbert's dormant Commerce Clause claim, ruling that Virginia's FOIA neither regulates nor burdens interstate commerce.  "[R]ather, it merely provides a service to local citizens that would not otherwise be available at all."  Op. at 13.

Justice Thomas joined the opinion but wrote separately to remind us of his view that "[t]he negative Commerce Clause has no basis in the text of the Constitution."  

SDS

Peter Sagal's Constitution USA

Peter Sagal (of NPR's Wait, Wait . . . Don't Tell Me!) took to the road on his Harley to talk about the Constitution with everyone from scholars to regular folk.  His question: Does the Constitution have what it takes to keep up with modern America?  His result: a four-part series on PBS, premiering next Tuesday, May 7, titled Constitution USA.  Here's the promo:

Watch A More Perfect Union - Preview on PBS. See more from Constitution USA with Peter Sagal.

 

Constitution USA also has its own web-site, with links, text, video clips of Sagal's interviews, and even constitutional games (yes, games!).  Check it out.

SDS

Tinker and The Second Amendment: NRA School T-Shirt Causes Kerfuffle

While the facts may not be as originally reported, the NRA t-shirt of West Virginia High School Student has been causing consternation.  Was he really suspended - - - and arrested - - - for wearing a t-shirt?

 

Such a result is most likely inconsistent with Tinker v. Des Moines Independent Community School District.  But that's not the full constitutional or perhaps factual story.

More here.

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Government Seeks Supreme Court Review of Recess Appointment Power

The Obama Administration filed its Petition for Writ of Certiorari yesterday in NLRB v. Noel Canning, the case testing whether President Obama's recess appointments of three NLRB members satisfied the Recess Appointments Clause.

Recall that the D.C. Circuit ruled that they didn't.  (Here's our coverage of the lower court ruling, with links to resources.)  That court held that the Recess Appointments Clause permits a recess appointment only during an inter-session recess of Congress (i.e., a recess that occurs between one enumerated session of Congress and the beginning of the next), not an intra-session recess (i.e., a recess that occurs during the course of a session), and that it permits a recess appointment only for vacancies that arise during an inter-session recess.  The court said that because President Obama made the appointments during an intra-session recess of Congress, and because the vacancies did not arise during an inter-session recess of Congress, the appointments were invalid. 

The government seeks review of both issues--whether the President can exercise the recess-appointment power during an intra-session recess, and whether the President can fill a vacancy that existed (even if not arose) during a recess. 

It's a good bet the Court will take this.  There's a circuit split, and the stakes are high.  As the government explains:

[The decision below] would deem invalid hundreds of recess appointments made by Presidents since early in the Nation's history.  It potentially calls into question every order issued by the National Labor Relations Board since January 4, 2012, and similar reasoning could threaten past and future decisions of other federal agencies.

Petition at 11-12.

SDS

Campaign Finance and DOMA

In an interesting advisory opinion from the Federal Election Commission (FEC), the ability of same-sex couples married under state law to make political contributions similar to opposite-sex married couples is thwarted by the Defense of Marriage Act (DOMA).  Recall that the United States Supreme Court is currently considering the constitutionality of DOMA in United States v. Windsor, argued last month.

The advisory opinion explained the underlying regulatory scheme:

Notwithstanding the prohibition on contributions in the name of another, a Commission regulation governing “[c]ontributions by spouses” provides that “limitations on contributions . . . shall apply separately to contributions made by each spouse even if only one spouse has income.” 11 C.F.R. 110.1(i). Thus, under Section 110.1(i), a spouse with no separate income may make a contribution in his or her own name “through the checking account of the other spouse.”

It concluded that "so long as the relevant provisions of DOMA remain in effect, the Committee may not apply 11 C.F.R. 110.1(i) to contributions from same-sex couples married under state law," although the Commission recognized that DOMA was currently under review.

In a separately issued concurring statement, FEC Chair Ellen Weintraub (pictured) emphasized that her "vote today was in no way intended to endorse the discriminatory, irrational burden that DOMA places on political participation by individuals in same sex." 

If DOMA is not declared unconstitutional by the United States Supreme Court on the basis of equal protection, the FEC's opinion might be fertile ground on which to grow a First Amendment challenge.

RR
[image of Ellen Weintraub via]

Utility Group Lacks Standing to Intervene to Stop EPA Clean Water Rulemaking

A three-judge panel of the D.C. Circuit ruled this week in Defenders of Wildlife v. Perciasepe that a utility industry group lacked Article III standing to intervene in a case brought by Defenders against EPA in which the parties entered into a consent decree establishing a schedule for EPA to initiate notice-and-comment rulemaking on certain effluent limitations and effluent limitations guidelines.  

The ruling means that the EPA will move forward with notice-and-comment rulemaking pursuant to the consent decree, and that the utility group's challenge is dismissed.

The case arose when Defenders and the Sierra Club reached an agreement with the EPA to establish a schedule for notice-and-comment rulemaking to review and possibly rewrite Steam Electric effluent limitations and effluent limitations guidelines under the Clean Water Act.  Defenders filed suit and simultaneously filed a consent decree.  Eight days later, the Utility Water Act Group, or UWAG, an association of energy companies, moved to intervene (in opposition to the consent decree).  The district court denied the motion, and UWAG appealed.

The D.C. Circuit ruled that UWAG lacked standing, a requirement for intervention.  The court first held that UWAG didn't assert a procedural injury.  In particular, UWAG didn't have any claim that it should be "subject to such rulemaking only to the extent the statute commands it or authorizes EPA, in its informed discretion, to undertake it," because UWAG didn't identify a statutory procedure that the consent decree required EPA to violate.  Moreover, UWAG didn't have a procedural injury flowing from the consent decree's short notice-and-comment schedule: UWAG couldn't cite any authority that the 13-month schedule was too short.

The court next said that the consent decree didn't require EPA to promulgate new rules.  Instead, the decree simply required EPA to conduct a rulemaking and then decide whether to issue a new rule.  The court held that this wasn't enough to meet the imminent harm requirement for standing.

Assuming no successful appeal, the next step is for EPA to start its notice-and-comment procedure pursuant to the consent decree.

SDS

Daily Read: More to Say on the First Amendment and Sex Worker Rights

Over at the Best Practices Policy Project, "dedicated to supporting organizations and advocates working with sex workers, people in the sex trade," two City University of New York (CUNY) School of Law students, Kat Thomas and Lauren Parnes, provide their perspectives on Monday's Supreme Court oral argument United States Agency for International Development v. Alliance for Open Society International, Inc. which we discussed here.

Because they were in the courtroom, they were able to add the fact that several of the Justices - - - including Chief Justice Roberts - - - nodded in agreement with this point made by David Bowker, Counsel for Alliance for Open Society:

on the government’s theory, the government can give you — can give anyone in the country a dollar in Medicare funds and say, okay,  now that you’ve taken a dollar of our money, we want you to profess your agreement with the Affordable Care Act, and we want you to never say anything inconsistent with that in your private speech. That is — that is wildly inconsistent with the First Amendment. That’s exactly what’s happening here. The only difference is the subject of prostitution. That’s what makes it less palatable.

The palatableness of the subject matter for the Justices and counsel alike is further explored by Thomas and Parnes.  Worth a read.

RR

Loyola Annual Constitutional Colloquium Call for Papers

Loyola University Chicago School of Law is organizing the FOURTH ANNUAL CONSTITUTIONAL LAW COLLOQUIUM at the Philip H. Corboy Law Center, 25 East Pearson Street, Chicago, IL 60611. The event will begin on Friday morning, November 1 and end midday on Saturday, November 2, 2013.

This is the fourth annual Loyola conference bringing together constitutional law scholars at all stages of their professional development to discuss current projects, doctrinal developments in constitutional law, and future goals. Presentations will be grouped by subject matter.

This announcement invites abstract submissions of 150 to 200 words from Constitutional Law professors interested in contributing to the current debates concerning constitutional theory and Supreme Court rulings. We also welcome attendees who wish to participate in audience discussions without presenting a paper. The goal of the conference is to allow professors to develop new ideas with the help of supportive colleagues on a wide range of constitutional law topics.

Eligibility: The Loyola Constitutional Law Colloquium is aimed at Constitutional Law, Legal History, Political Science, and Philosophy scholars teaching full-time and part-time at the university, law school, and graduate levels on all matters of constitutional law.

Application Procedure: The registration and abstract submission deadline is June 15, 2013. Conference organizers will select abstracts on a rolling basis.

Register here; more information is here.

Topics, abstracts, papers, questions, and comments should be submitted to:

[email protected]

Participants are expected to pay their own travel expenses. Loyola will provide facilities, support, and continental breakfasts on Friday and Saturday, lunch on Friday and Saturday, and a dinner on Friday night.

Conference Organizers:

. Professor John E. Nowak, Raymond and Mary Simon Chair in Constitutional Law

. Professor Juan Perea

. Professor Alexander Tsesis

. Professor Michael J. Zimmer

 Loyola Constitutional Law Faculty:

. Professor John Nowak, Raymond and Mary Simon Chair in Constitutional Law

. Professor Barry Sullivan, Cooney & Conway Chair in Advocacy

. Professor Diane Geraghty, A. Kathleen Beazley Chair in Child Law

. Professor George Anastaplo

. Professor Juan Perea

. Professor Alan Raphael

. Professor Allen Shoenberger

. Professor Alexander Tsesis

. Professor Michael Zimmer

SDS

[Image: Howard Chandler Christy, Scene at the Signing of the Constitution of the United States, Architect of the Capitol]

Constitutional Issues in the Tsarnaev Case

The Obama administration announced today that it would not hold alleged Boston Marathon bomber Dzhokhar Tsarnaev as an enemy combatant, as some (perhaps most prominently Senator Lindsay Graham) have advocated.  Adam Serwer argues at Mother Jones that this was an easy case:

Under current law, the fact that Tsarnaev shares an ethnicity and religion with other extremists is insufficient grounds to detain him militarily.  The 2012 National Defense Authorization Act, which Graham vocally supported, defines as eligible for military detention "a person who was part of or substantially supported Al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners."  There's no evidence yet that the suspects in the Boston bombing acted with the support of or at the behest of Al-Qaeda, the Taliban, or associated forces.  Unless that evidence emerges, it wouldn't be legal to hold Tsarnaev as an enemy combatant, even if he and his brother were motivated by extremist religious beliefs.

Serwer quotes Benjamin Wittes, saying "It's actually not a close question."  Wittes set out his case against detention as an enemy combatant on Lawfare.  CRS has a terrific backgrounder, titled Detention of U.S. Persons as Enemy Belligerents, here.

There's still some buzz about the Miranda question.  New York v. Quarles (1984) created the "public safety" exception; the case is here.  The Obama FBI issued this memo, obtained first by the NYT, on October 21, 2010, interpreting the exception and possibly expanding its scope for terrorist suspects.  (Wittes posted these reflections on the memo on Lawfare.)  Glenn Greenwald at the Guardian writes here; Emily Bazelon at Slate writes here; and Sandy Levinson and Jason Mazzone go back and forth at Balkinization here.  CRS has a good introduction to some of the issues, Terrorism, Miranda, and Related Matters, here.

SDS

Daily Read: The Terrorism Exception to the Constitution?

Should there really be a "terrorism" exception to the criminal procedure protections in the Bill of Rights?

ConLawProfs looking for an extended treatment of this question might do well to turn to Norman Abrams' article, Terrorism Prosecutions in U.S. Federal Court: Exceptions to Constitutional Evidence Rules and the Development of a Cabined Exception for Coerced Confessions, available at 4 Harv. Nat’l Sec. J. 58 (2012).

Abrams argues for a something less than a wholesale exception:

The expression, “cabined,”  is  meant to signify not extending  all the way up the ladder of police  interrogation  methods, but only applying to a limited, non  -  extreme set of interrogation  methods, albeit methods that under current law might lead to a  determination of involuntariness.  A cabined exception is one that would, under the appropriate circumstances, authorize the FBI, or other police agencies, to use interrogation methods that exceed existing constitutional limits as  established by the Supreme Court, but only up to a point, and not to the  point where the methods used are extreme.

For some, allowing law enforcement the discretion to determine the "appropriate circumstances" and the methods that are not "extreme" is exceedingly troubling.  But Abrams extended argument seeking to support his conclusion is worth a read, even as the immediate issue of the possibility of a "terrorism exception" applied to Tsarnaev has receded.  

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Oral Arguments in USAID v. Alliance for Open Society, the "Prostitution Pledge"

The Court heard oral arguments today, sans Justice Kagan, in United States Agency for International Development v. Alliance for Open Society International, Inc., involving a First Amendment challenge to a provision of federal funding statute requiring some (but not other) organizations to have an explicit policy opposing sex work. 

 

Courtesan in a Window, 18th C.

The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (“Leadership Act”), 22 U.S.C. § 7601 et seq. provides: "No funds made available to carry out this chapter, or any amendment made by this chapter, may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking, except that this subsection shall not apply to the Global Fund to Fight AIDS, Tuberculosis and Malaria, the World Health Organization, the International AIDS Vaccine Initiative or to any United Nations agency"

 

In other words, a NGO must have a "prostitution pledge" - - - actually, an anti-prostitution pledge - - - as a condition of receiving funds, unless it is one of the "grandfathered" NGOs.   The question is whether this pledge is compelled speech and whether any compelled speech is sufficient to distinguish the situation from Rust v. Sullivan.  The Second Circuit had held the provision unconstitutional.

Arguing as Deputy Solicitor General in support of the provision's constitutionality, Sri Srinivasan stressed that the Congressional requirement was "germane" to the government's goal in "partnering" with private organizations.  Justice Scalia, in addition to finding the term "partnering" a "terrible verb," seemed to voice sentiments consistent with his previous conclusions in funding cases that the government can choose to spend its money as it wished. Interestingly, Justice Alito was more troubled, as he expressed in his first comment and question to the Deputy Solicitor General:

JUSTICE ALITO: I'm not aware of any case in which this Court has held that it is permissible for Congress to condition Federal funding on the recipient's expression of agreement with ideas with which the recipient disagrees. I'm not aware of any case in which that kind of compelled speech has been permitted.  And I would be interested in -- and it seems to me like quite a -- a dangerous proposition. I would be interested in whatever limitations you think there might be on that rule, which seems to be the general rule that you're advocating. Other than the requirement of germaneness, is there anything else.

 Alito soon thereafter posed an example mentioned in an amicus brief about the ability of government funding schools, and again, Srinivasan repeated the requirement of "germaneness."  Later, Alito mentioned another example, mixing advocacy of guns and receiving health care, and Srinivasan again answered similarly.

Justice Ginsburg's concerns were similar, with an addition of the question of the recipients as foreign NGOs as a distinguishing feature from precedent as well as a practical issue. 

David Bowker, arguing for Alliance for Open Society and other organizations, attempted to distinguish a funding criteria from mandated speech once the fnding decision had been made, although this led into a discussion of viewpoint discrimination rather than compelled speech.  Later, Bowker brought it back to the distinction based upon Rust v. Sullivan, in  a colloquy with Justice Sotomayor:

MR. BOWKER: And what Rust says, and I – I think we fall back on Rust, which we think is just on all fours with where we are here, and that is what the government cannot do -- and I think this answers your question -- is outside the government program the government cannot control private speech. And it was critical in that case -- Justice Rehnquist, at pages 196 and 197, said, "The doctors there and the public health organizations there are free to engage in their own private speech and their own activities, and they are not required to endorse any viewpoint they don't, in fact, hold." And here -­

It was not until the Government's rebutal that one of the oddest features of the statute was raised, when Sotomayor stated,

JUSTICE SOTOMAYOR: I would have less problem accepting your message if there weren't four major organizations who were exempted from the policy requirement . . .

There seems to be a bit of selection on the government in terms of who it wants to work with. It would seem to me that if you really wanted to protect the U.S., you wouldn't exempt anybody from this.

In his last moments of argument, Srinivasan, responding to Justice Ginsburg, argued that the exemptions made "good sense" given that three of the four have members that are sovereign entities.  Unfortunately, the rationale supporting that fourth entity was not explored.

The hypotheticals and examples raised by the Justices in oral argument showed some concern about just how far Congress could extend a provision similar to the one about prostitution in the Leadership Act.  The distinction between funding and compelled speech doctrines was often obscured, making the outcome uncertain.  More certain is that Justice Kagan's perspective will be sorely missed.

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Oral Arguments in Kebodeaux, the Sex Offender Registration Case

The Supreme Court heard oral arguments this week in United States v. Kebodeaux, the case testing whether Congress can require a federal sex offender to register, when the offender served out his full sentence before Congress enacted the Sex Offender Registration Act.  

The arguments centered on just how far congressional authority extends under Congress's power to regulate the military (because Kebodeaux was convicted under the UCMJ) and the Necessary and Proper Clause (because he was required to register under SORNA only after he served out his full sentence).  That latter point, the key here, in turn largely centered on the reach and understanding of United States v. Comstock, the OT 2009 case holding that Congress could authorize a federal judge to order the civil commitment of a "sexually dangerous" person in federal custody even beyond the term of his sentence.

Comstock was a 7-2 ruling, with Chief Justice Roberts joining Justice Breyer's majority opinion.  Justices Kennedy and Alito concurred separately.  Justices Scalia and Thomas dissented.  

Chief Justice Roberts sent strong signals during arguments in Kebodeaux that he sees this application of SORNA as beyond the pale.  Justices Kennedy and Alito were also critical of the government's position, but seemed slightly less firm in their positions, slightly more open.  Justice Sotomayor, too, pressed for limits on government authority.  If three of these switch from their positions in Comstock, Kebodeaux will go the other way.

My argument review at SCOTUSblog is here.

SDS

Bradley Manning's "Secret" Trial

In its sharply divided opinion in Center for Constitutional Rights v. United States, the United States Court of Appeals for the Armed Forces rejected a claim that of public access to the trial and documents regarding the Bradley Manning court martial.

We've previously discussed the contentious Bradley Manning prosecution here, here, here, here, and here.

In this case, the appellants - - Center for Constitutional Rights, Glenn Greenwald, “Salon.com,” Jeremy Scahill, “The Nation,” Amy Goodman, “Democracy Now!,” Chase Madar, Kevin Gosztola, Julian Assange, and Wikileaks - - - sought press access.  The three-judge majority noted that the court "invited counsel for the accused to file a brief on the issues but they declined to do so."  It concluded that the court did not have the "jurisdiction" to grant the relief requested.

 

Bradley Manning reading his plea statement in court, sketched by Clark Stoeckley via

 

The two dissenting opinions - - - each judge authoring an opinion that the other joined - - - reject the majority's disinclination to assert its own power.

A dissenting opinion, by Chief Judge Baker joined by Senior Judge Cox, begins by centering the First Amendment concerns:

The general public has a qualified constitutional right of access to criminal trials. Richmond Newspapers, Inc. v. Virginia , 448 U.S. 555 (1980) (plurality opinion). Public access to a criminal trial includes appropriate access to filings. Nixon v. Warner Commc’ns , Inc. , 435 U.S. 589 , 597 (1978) . “Congress intended that, to the extent ‘practicable,’ trial by court - martial should resemble a criminal trial in a federal district court.” United States v. Valigura , 54 M.J. 187, 191 (C.A.A.F . 2000). The right to a public trial is embedded in Rule for Court’s - Martial (R.C.M.) 806, which provides that “ [e]xcept as otherwise provided in this rule, courts - martial shall be open to the public.”

Judge Baker's opinion stops short of concluding that there should be press access to the proceedings and documents, but does conclude that the court should determine the specific contours of the First Amendment right.   

Judge Cox's dissenting opinion, joined by Baker, emphasized the court's role to assist the military trial judge, noting that the military judges " are in a better position to do that than is a federal district judge to solve the issues presented."

Thus, it seems as if it will continue to be difficult to determine what is happening in the court martial of Bradley Manning.

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Daily Read: Spindelman on Carpenter on Lawrence

Integral to the same-sex marriage cases of Perry and Windsor argued before the Court last month is the 2003 case of Lawrence v. Texas.  Although the Court's opinion specifically excluded marriage in its caveat paragraph, the declaration that sodomy laws were unconstitutional under the Due Process Clause is generally considered a linchpin of recognizing any constitutional right to same-sex marriage under the Equal Protection Clause. 

Professor Marc Spindelman (pictured) reviews Professor Dale Carpenter's book Flagrant Conduct: The Story of Lawrence v. Texas in a trenchant essay entitled Tyrone Gardner's Lawrence v. Texas appearing in Michigan Law Review.  Spindelman acknowledges the contribution of the book even as he uses it as a springboard to reach different conclusions about the potential of the case to achieve equality or civil rights.  Spindelman focuses on Tyrone Gardner, who along with John Geddes Lawrence was arrested for sodomy, as a lens for exploring the reach of Lawrence v. Texas.  

Refering to Gardner, Spindeleman asks, "How could Lawrence v. Texas, this great victory for lesbian and gay civil rights, have done and meant so very little to the life of one of the two men most central to it?"  Spindelman's answers explore the status-quo bias and moral conservatism of Lawrence, connecting the case to affirmative action decisions as well as to the "Obamacare" case, Nat’l Fed’n of Indep. Bus. v. Sebelius.

Every ConLawProf teaching Lawrence v. Texas would do well to read Spindelman's essay. 

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Party's Non-Settlement Moots "Similarly Situated" Labor Case

A sharply divided Supreme Court (5-4, along conventional ideological lines) ruled on Tuesday that when a lone plaintiff sues under the Fair Labor Standard Act on behalf of herself and all others "similarly situated," but then declines to answer a defendant's settlement offer in the case, the case--the entire thing--becomes moot.  

The ruling in Genesis Healthcare v. Symczyk deals a significant blow to the FLSA's provision that allows an employee to sue on behalf of all others "similarly situated."  That's because the ruling allows a defendant to moot an entire case by offering complete settlement to a lone lead plaintiff--whether the plaintiff accepts it, rejects it, or ignores it.  But if the dissent is right, this is a one-off that should never happen again.

Symczyk sued Genesis Healthcare under the FLSA for backpay after Genesis docked its employees' pay for a half-hour lunch each day, even when employees worked through lunch.  She sued on behalf of herself and all others "similarly situated."  (The FLSA specifically provides for this class-action-like mechanism.)  Genesis offered to settle for the full amount of monetary damages, but put a deadline on its offer of 10 days.  Symczyk didn't respond, and the trial court dismissed her case.  The Third Circuit reversed, but only as to the collective action.  The Third Circuit said that the settlement offer mooted Symczyk's individual claim, but that it didn't moot her collective claim on behalf of others "similarly situated."

The Supreme Court ruled the entire case moot.  The majority, by Justice Thomas, joined by Chief Justice Roberts, and Justices Scalia, Kennedy, and Alito, assumed, but did not decide, that the Third Circuit was right about Symczyk's individual claim, but it reversed on her collective claim.  The Court said that once it assumed that Symczyk's individual claim was moot, the ruling on the collective-action allegations turned on a "straightforward application of well-settled mootness principles."  Basically: "the mere presence of collective-action allegations in the complaint cannot save the suit from mootness once the individual claim is satisfied."  The Court distinguished the "relation back" cases under Rule 23 class-action doctrine, saying that here "[t]here is simply no certification decision to which resondent's claim could have related back."  It also distinguished the "inherently transitory" cases under class-action doctrine, saying that unlike those cases, which were for injunctive relief challenging ongoing conduct, this case was about monetary damages for past conduct.  And it said that its ruling wouldn't undermine the purpose of the FLSA's collective-action provision, because the purpose of that provision is different than the purpose of class actions (on which Symczyk relied): the FLSA works differently than class certification--FLSA "conditional certification" simply isn't class certification--and that difference matters.

Justice Kagan wrote an animated dissent for herself and Justices Ginsburg, Breyer, and Sotomayor.  She took aim at the majority's assumption that the settlement mooted Symczyk's claim and wrote that if the lower courts could get that right (that is, that Symczyk's claim wouldn't go moot just because she ignored a settlement offer) this case should never happen again.  Here's just one among many gems in her dissent:

So a friendly suggestion to the Third Circuit: Rethink your mootness-by-unaccepted-offer theory.  And a note to all other courts of appeals: Don't try this at home.

If the lower courts, which are currently split on the question, can work this out as Justice Kagan did, this case will, indeed, never happen again.  But in the meantime, the Court's ruling deals a significant blow to FLSA plaintiffs who bring collective action claims in those circuits where a settlement offer moots an individual claim.  Even more generally, it's yet another blow to access to justice.

SDS

Argument Review: Does a Port's Enforcement Have the Force and Effect of Law?

The Supreme Court heard oral arguments yesterday in American Trucking Association v. City of Los Angeles, the case asking whether federal law preempts the Port of Los Angeles's "concession agreement" that it requires of all drayage truck operators.  Our argument preview is here.

Two points got the Court's attention.  First, the justices tested whether the Port was acting in a proprietary way in enforcing the concession agreement, thus triggering the market participant exception.  This question turns on whether the Port's enforcement of the agreement had "the force and effect of law"--language from the preemption clauses in the Federal Aviation Administration Authorization Act that means that enforcement by a state as state is preempted, but enforcement by a state as market actor is not.  Here, the Port's concession agreements are contracts with drayage truck operators (making the Port look like a market actors), but they are ultimately backed by criminal penalties, even if not for breach of the contract, and the whole operation relates to regulation of public land (making the Port look like the state).  Take a look at this exchange with the attorney for the Port:

JUSTICE KENNEDY: You are saying that you can do by contract what you cannot do by regulation.  And I don't understand that argument when there are criminal penalties that attach to the breach of the contract.

MR. ROSENTHAL: But, Justice Kennedy, let me say again, there are no criminal penalties that attach to the breach of the contract.  It is purely a contract.  The remedies are purely civil.  Even our other side in their argument has conceded there are no criminal penalties to the breach of the concession agreement.

JUSTICE SCALIA: I'm not sure that's crucial.  You think a state can say nobody's going to come on our highways until it signs a contract?  Okay?  These highways belong to us, they are State land, and anybody who wants to ride on the highways, you have to enter a contract with the State.  And that's going to get around this Federal statute?

Others, too, asked about the criminal penalties and the scope of the Port's regulatory authority--all to the end of determining whether the Port looks more like the state, or more like a market actor, when it enforces its concession agreement.

Next, the Court pressed on the scope of Castle, the case overturning Illinois's punishment of a carrier's repeated violations of the state's freight-weight restriction by completely suspending the carrier's right to use Illinois state highways for certain periods.  Here, the arguments turned on whether the Port's enforcement mechanism was a punishment for prior violations (as in Castle), or whether it simply operated to ensure that only currently compliant trucks had access to the Port.  There's also an issue about the continued vitality of Castle, given that the federal regulatory scheme that governed at the time has since been superceded.

The Port seemed to have the tougher time at arguments, but that's no (necessary) bellweather.  There were plenty of open questions to suggest that there are no easy answers here.  As a practical matter, if the Court rules against the Port, it would undo years of litigation and negotiation between the Port and the surrounding community related to environmental and health concerns and send those paties back to the drawing table.  That, in turn, could impact both community health and the environment, and the Port's plans for even more expansion.

SDS

Daily Read: Resnik on Equality's Frontiers

What do our visual images of justice tell us?  Judith Resnik with her co-author Dennis E. Curtis, provide ample, exciting and complex answers to that question in their marvelous book, Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms, published in 2011.

Resnik's 2013 essay, Equality’s Frontiers: Courts Opening and Closing, adapted from remarks at an event celebrating Justice Ginsburg’s gender-equality jurisprudence and drawing on the book, is a brief but evocative look at how justice and equality are - - - and were - - - portrayed.  Two images Resnik includes and analyzes from WPA murals in courthouses are particularly salient.

First, there is an image of Justice as Protector and Avenger in a South Carolina courtroom.

Not particularly remarkable, one might think, until one reads about the objections to "justice" looking like a “barefooted mulatto woman wearing bright-hued clothing.”

Second, there is an image in a Idaho courthouse:

Should this be removed as offensive?  Or displayed as an accurate part of the history of justice and equality?  Resnik shares the decisions of state officials, ultimately made in consultation with Native tribes.

Resnik contends that such images, including these from courthouses in South Carolina and Idaho,

make a first point—that courts were one of equality’s frontiers. The conflicts about what could or could not be shown on courthouse walls mirrored conflicts about what rights people had in court.

A terrific read - - - and look - - - as well as a reminder of the richness of the Representing Justice book.

RR
[images via]

Daily Read: Albany Law Review Symposium on Free Speech

Now in print is the Fall 2012 Albany Law Review Symposium “What Are We Saying? Violence, Vulgarity, Lies . . . And The Importance Of 21st Century Free Speech."

Here's the TOC of the issue with links to pdfs of the articles, essay, and discussions:

ARTICLES:
-- Ronald K.L. Collins......Foreword: Exceptional Freedom—The Roberts Court, the First Amendment, and the New Absolutism
 -- Robert M. O'Neil........Hate Speech, Fighting Words, and Beyond--Why American Law is Unique
 -- Rodney A. Smolla........Categories, Tiers of Review, and the Roiling Sea of Free Speech Doctrine and Principle: A Methodological Critique of United States v. Alvarez
 -- Jeffery C. Barnum.........Encouraging Congress to Encourage Speech: Reflections on United States v. Alvarez
 -- Marjorie Heins..........The Supreme Court and Political Speech in the 21st Century: The Implications of Holder v. Humanitarian Law Project
 -- R. George Wright.........Are There First Amendment “Vacuums?”: The Case of the Free Speech Challenge to Tobacco Package Labeling Requirement
 -- Robert D. Richards & David J. Weinert.........Punting in the First Amendment’s Red Zone: The Supreme Court’s “Indecision” on the FCC’s Indecency Regulations Leaves Broadcasters Still Searching For Answers
 -- Marvin Ammori & Luke Pelican.........Media Diversity and Online Advertising
 -- Martin H. Redish & Michael J.T. Downey.........Criminal Conspiracy as Free Expression

ESSAY:
-- Owen Fiss........The Democratic Mission of the University
 
TRANSCRIPTS:
-- Welcome & Opening Remarks.......Benjamin P. Pomerance
-- Debate on Citizens United v. Federal Election Commission.......Floyd Abrams and Alan B. Morrison, moderated by Ronald K.L. Collins
 -- Panel Discussion on Recent U.S. Supreme Court Free Speech Cases and Their Implications......Adam Liptak (moderator), Ronald K.L. Collins, Susan N. Herman, Alan B. Morrison, Robert M. O'Neil, Robert D. Richards

 

RR

Argument Preview: Can Congress Penalize a Pre-SORNA Sex Offender for Failure to Register?

The Supreme Court will hear arguments tomorrow in U.S. v. Kebodeaux, a case testing whether Congress can penalize a sex offender for failure to register, when the offender was convicted and released before Congress enacted the penalty in the Sex Offender Registration Act.

In short, Kebodeaux's theory is that he was "unconditionally" released from federal custody before Congress required him to register through SORNA.  Thus, he was outside of federal authority when Congress "reasserted" authority over him.  He says that this exceeds congressional power.

The government claims that Kebodeaux was still subject to federal authority after his release but before SORNA, through a federal penalty for failing to register in the Wetterling Act, SORNA's precusor.  And it says that even if he weren't, it could later penalize his failure to register through SORNA. 

The case tests the limits of congressional authority, but just barely.  That's because the facts are narrow and limited--dealing only with congressional authority to penalize a pre-SORNA offender for failure to register.  It's not a full-throated challenge to congressional authority to require registration. 

Moreover, both parties give the Court a non-constitutional option.  The government says that the Court could simply rule that Congress still exercised authority over Kebodeaux after his release, and remand for further proceedings consistent with that holding.  Kebodeaux argues in the alternative that SORNA doesn't even apply to him.

Still, we're likely to at least hear robust discussion tomorrow about the scope of congressional authority under U.S. v. Comstock, the OT '09 case holding that Congress can authorize, under the Necessary and Proper Clause, the civil detention of federal prisoners who are "sexually dangerous" even beyond their original sentence.  Both parties put the case front-and-center in their arguments.

For more, here's my argument preview at SCOTUSblog.

SDS