Constitutional Law Prof Blog

Ninth Circuit Dissolves Stay in Prop 8 After Supreme Court's Decision in Perry

In a one line order in Perry v. Hollingsworth, the Ninth Circuit Perry panel has lifted its stay of District Judge Walker's 2010 opinion holding Proposition 8 unconstitutional. 

The order provides in full:

The stay in the above matter is dissolved effective immediately.

Thus, as we discussed here, it looks as if Proposition 8 is unconstitutional in California and same-sex marriages are valid.

RR
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How Did We Get the Principle of Equal State Sovereignty (in the Shelby County Case)?

As we reported shortly after the Court released its opinion in Shelby County v. Holder, striking the coverage formula for preclearance under the Voting Rights Act, Chief Justice Roberts's majority opinion relied heavily on the newly minted doctrine of equal state sovereignty.  That doctrine, argues Judge Richard Posner (7th Cir.) at Slate, doesn't exist:

Shelby County v. Holder, decided Tuesday, struck down a key part of the Voting Rights Act (the part requiring certain states with a history of racial discrimination in voting to obtain federal permission in advance to change their voting procedures--called "preclearance") as violating the "fundamental principle of equal sovereignty" of the states.  This is a principle of constitutional law of which I had never heard--for the excellent reason that . . . there is no such principle.

Eric Posner recently made a similar point here; I made a similar point here.

So where does this principle come from?  It comes from Chief Justice Roberts's majority opinion in Northwest Austin Municipal Utility District Number One v. Holder, the 2009 case holding that NAMUDNO can bail out of preclearance and thus dodging the constitutional question whether Congress had authority to reauthorize preclearance in 2006.

In NAMUDNO, as traced in the pieces linked above, Chief Justice Roberts worried about the "federalism costs" of preclearance, including its intrusion on equal state sovereignty.  But he failed to mention that the principle of equal state sovereignty previously applied only to the conditions upon which states were admitted to the Union, and not to day-to-day treatment of the states by Congress, much less congressional treatment of the states under the enforcement power in the Reconstruction Amendments.  Justices Stevens, Souter, Ginsburg, and Breyer all signed on to that opinion.

Chief Justice Roberts picked up that NAMUDNO language in Shelby County and ran with it.  He also poked Justices Ginsburg and Breyer for signing on to NAMUDNO but dissenting in Shelby County (in part because they said that there is no general doctrine of equal state sovereignty).

This is but one example of the way that Chief Justice Roberts has slowly pulled the Court to the right, argues Adam Liptak in today's NYT--an article well worth reading, whether you think the argument is too strong, too weak, or just right.  It involves a slow, patient approach to changing the doctrine--by first writing relatively benign opinions (and gaining the votes of the more liberal Justices) but that nevertheless include potentially explosive language (like the reference in NAMUDNO to the doctrine of equal state sovereignty), then later citing that language (and the fact that the more liberal members signed on) in much, much bigger cases (like Shelby County).

SDS

Tenth Circuit Recognizes For-Profit Corporations as Having Religious Freedom and Free Exercise Rights

In the contentious and closely-watched case of Hobby Lobby, Inc. v. Sebelius, the Tenth Circuit has rendered its opinion concluding that a for-profit corporation has free exercise of religion rights under the federal Religious Freedom Restoration Act (RFRA) and the First Amendment.

Hobby Lobby challenges the constitutionality of the so-called "contraception mandate" under the Affordable Care Act that require health insurance plans to provide contraception coverage to employees.  We've previously discussed the issue and the circuit split here. 

The federal district judge had rejected Hobby Lobby's claim, noting that it was a for-profit completely secular company - - - it is a corporation operating 514 arts and crafts stores in 41 states.  The federal district judge also denied the injunction as to the for-profit corporation Mardel, a Christian supply and bookstore chain, and to the family owning both the corporations through a management trust.  Hobby Lobby sought extraordinary relief from the United States Supreme Court after a Tenth Circuit panel declined to issue a stay; Justice Sotomayor in her role as Tenth Circuit Justice then rejected the claim, ruling that the privately held corporations did not "satisfy the demanding standard for the extraordinary relief they seek."

The Tenth Circuit granted the request for initial en banc review - - - thus, there is no Tenth Circuit panel opinion - - - and issued a lengthy set of opinions from the eight judges, one judge being recused. The majority opinion on pages 8-9 details the rationales of the individual judges.  But the essential division is 5-3 over the issue of whether a corporation, even a for-profit secular corporation, has a right to free exercise of religion under RFRA and the First Amendment.  The majority concluded there was such a right and that the corporations demonstrated a likelihood of success for prevailing on the merits. 

Judge Timothy Tymkovich's more than 65 page opinion for the majority concluded that  

Hobby Lobby and Mardel are entitled to bring claims under RFRA, have established a likelihood of success that their rights under this statute are substantially burdened by the contraceptive-coverage requirement, and have established an irreparable harm. But we remand the case to the district court for further proceedings on two of the remaining factors governing the grant or denial of a preliminary injunction.

Only a plurality of judges would have resolved the other two preliminary injunction factors  - - - balance of equities and public interest - - -  in Hobby Lobby and Mardel’s favor, thus the remand.

The majority, however, held

as a matter of statutory interpretation that Congress did not exclude for-profit corporations from RFRA’s protections. Such corporations can be “persons” exercising religion for purposes of the statute. Second, as a matter of constitutional law, Free Exercise rights may extend to some for-profit organizations.

(emphasis added). The opinion often conflates RFRA (which recall, is only applicable as to federal laws) and First Amendment.  However, in specifically considering First Amendment doctrine, the majority's argument derived from two strands.  First, it noted that individuals may incorporate for religious purposes and keep their Free Exercise rights - - - such as churches, citing Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 525 (1993) (holding that a “not-for-profit corporation organized under Florida law” prevailed on its Free Exercise claim).  Second, it then noted that "unincorporated individuals may pursue profit while keeping their Free Exercise rights," citing United States v. Lee, 455 U.S. 252 (1982) (considering a Free Exercise claim of an Amish employer); Braunfeld v. Brown, 366 U.S. 599 (1961) (plurality opinion) (considering a Free Exercise claim by Jewish merchants operating for-profit).

It then characterized the government's argument as being that these "Free Exercise rights somehow disappear" when "individuals incorporate and fail to satisfy Internal Revenue Code § 501(c)(3)."  The majority found this distinction to be one that cannot be supported by First Amendment doctrine.  It did, however, implicitly limit the facts under which for-profit corporations could be found to have free exercise rights: 

The government nonetheless raises the specter of future cases in which, for example, a large publicly traded corporation tries to assert religious rights under RFRA. That would certainly seem to raise difficult questions of how to determine the corporation’s sincerity of belief. But that is not an issue here. Hobby Lobby and Mardel are not publicly traded corporations; they are closely held family businesses with an explicit Christian mission as defined in their governing principles. The Greens, moreover, have associated through Hobby Lobby and Mardel with the intent to provide goods and services while adhering to Christian standards as they see them, and they have made business decisions according to those standards. And the Greens are unanimous in their belief that the contraceptive-coverage requirement violates the religious values they attempt to follow in operating Hobby Lobby and Mardel. It is hard to compare them to a large, publicly traded corporation, and the difference seems obvious.

Thus, the majority stated that it did not share any concerns that its holding would prevent courts from distinguishing businesses that are not eligible for RFRA’s - - - and presumably the First Amendment's - - - protections.

While the analysis of substantial burden that follows is important, it is the holding that a secular for-profit corporation has a sincerely held religious belief that entitles it to assert a free exercise claim is the centerpiece of the controversy. 

Indeed, Chief Judge Briscoe, joined by Judge Lucero, call the majority's opinion on this point

nothing short of a radical revision of First Amendment law, as well as the law of corporations. But whatever one might think of the majority’s views, the fact remains that they are wholly unsupported by the language of the Free Exercise Clause or the Supreme Court’s free exercise jurisprudence, and are thus, at best, “considerations for the legislative choice.”

The ability of for-profit corporations to have Free Exercise rights under the First Amendment - - - along with their Free Speech rights as articulated in the still-controversial Citizens United v. FEC, decided in 2010 and liberally cited in Hobby Lobby - - - is highly contested.  This may certainly be going (back) to the United States Supreme Court.

RR
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Two Questions in the Aftermath of DOMA and Prop 8 Decisions

In the wake of the Court's decisions in United States v. Windsor, declaring section 3 of DOMA unconstitutional, and Perry v. Hollingsworth, holding that the "proponents" of Proposition 8 lacked standing to appeal a federal judge's declaration of Prop 8's unconstitutionality, many questions remain. 

Here are two.

The first question is the status of Proposition 8.  Recall that the federal district judge held Prop 8 made a sexual orientation classification that does not satisfy the rational basis standard and thus violates the Equal Protection Clause.   The district judge's opinion enjoined the enforcement of Proposition 8, an injunction which he then stayed.   Chief Judge Roberts' majority opinion in Perry describes district judge Walker's order as being broad: 

"After a 12-day bench trial, the District Court declared Proposition 8 uncon- stitutional, permanently enjoining the California officials named as defendants from enforcing the law, and “direct- ing the official defendants that all persons under their control or supervision” shall not enforce it. Perry v. Schwarzenegger, 704 F.Supp. 2d 921, 1004 (ND Cal. 2010).

The ACLU and others are advising that the district judge's order renders Prop 8 unconstitutional as to all of California.  The  docket entry in the Ninth Circuit simply states:

Received copy of Supreme Court opinion dated 06/26/2013. The judgment or mandate of this Court will not issue for at least twenty-five days pursuant to Rule 45. Should a petition for rehearing be filed timely, the judgment or mandate will be further stayed pending this Court's action on the petition for rehearing. Supreme Court No: 12-144. [8682306] [10-16696, 11-16577].

One of the best discussions of this issue is by ConLawProf Marty Lederman over at SCOTUSblog. Lederman asks  "even if Judge Walker’s injunction should have been limited to the protection of the plaintiffs before him—so what?  That injunction nevertheless governs the case, and it will be operative, regardless of whether it should have been more tailored."    He concludes that Justice Kennedy, dissenting in Perry will be proven correct that “the Court’s opinion today means that a single district court can make a decision with far-reaching effects that cannot be reviewed.”

The second question is one that is being voiced less, but is worth considering: Why are there no opinions by Justices Sotomayor, Ginsburg, Kagan, and Breyer?  Justice Ginsburg, who made headlines with her "skim milk" comment during oral argument in Windsor, could have effectively written a concurring opinion that might have counter-balanced some of the arguments in Alito's separate dissenting opinion regarding the function of marriage. ConLawProf David Cohen over at FeministLawProfessors ConLawProf  argues that the lack of opinions matters:

By remaining silent, not only are the liberal Justices depriving us from learning their particular views, but they are depriving future litigants the opportunity to use their strong reasoning to further their cause.  After all, the logic in today’s concurring opinions often becomes the logic in tomorrow’s majority opinion.

It might be added that perhaps one of these Justices could have provided a rigorous equal protection analysis.

There are certainly more questions raised by Windsor and Perry, but these two are central.

RR
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Texas to Move Forward With Voter ID, Redistricting, After Shelby

The Texas Attorney General announced today that the state would move forward with its voter ID law and redistricting plan, both of which were denied preclearance by the D.C. District Court.  The move comes the same day that the Supreme Court vacated the lower court's denial of preclearance in light of its ruling earlier this week in Shelby County v. Holder, striking Section 4, the coverage formula for preclearance, of the VRA.

Because Shelby County didn't touch Section 2 of the Voting Rights Act, Texas voter ID and redistricting are still subject to Section 2 lawsuits.

SDS

Court Decides Same Sex Marriage Cases: DOMA (Windsor) and Proposition 8 (Perry)

The Court decided both cases presenting the issue of the constitutionality of bans on same-sex marriage.

In the DOMA - - - Defense of Marriage Act - - - case,  the Court's  5-4 opinion by Justice Kennedy in United States v. Windsor, argued in March, affirmed the Second Circuit's finding  that section 3 of  DOMA is unconstitutional.

In its relatively brief opinion (26 pages), the majority first found that BLAG, the Bipartisan Legal Advisory Group of the House of Representatives, had sufficient status to confer standing, or at least the case provided "sufficient adversarial presentation for the Court to decide to get to the merits."   Recall that BLAG formed to defend the statute  after the Obama Administration decided not to defend the constitutionality of DOMA in February, 2011  and that the Court appointed ConLawProf Vicki Jackson to brief and argue BLAG's standing.  Dissenting, Justice Scalia argued that the standing and merits decisions by the Court "both spring from the same diseased root: an exalted notion of the role of this court in American democratic society," not referencing his position in yesterday's decision in Shelby County v. Holder holding a different act of Congress unconstitutional. 

On the merits and holding section 3 of DOMA unconstitutional, Kennedy articulates the federalism rationales so central to the First Circuit's holding that DOMA was unconstitutional.

The opinion then reaches the equal protection issue (under the Fifth Amendment given that DOMA is a federal statute) and concludes:

The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.

Importantly, the decision seems to be applying rational basis review, although it does little to provide a clear analytic framework or solve problematics of rational basis review. Indeed, it introduces a notion of "careful consideration" which is certainly not strict scrutiny, but likewise eschews the intermediate scrutiny favored by the Second Circuit's decision in Windsor  and seems to apply to the "animus" aspect of rational basis with "bite."

In the Proposition 8 case, Hollingsworth v. Perry, also argued in March, and also reltively brief at 17 pages, the Court's opinion by Chief Justice Roberts and joined by - - - Scalia, Ginsburg, Breyer and Kagan  - - - held that there was no standing for the "proponents" to appeal and thus vacates the Ninth Circuit panel opinion that held Proposition 8 unconstitutional.   The Ninth Circuit, in a careful opinion, had affirmed the opinion of Judge Vaughn Walker who presided over an extensive trial in federal district court, after which he held Prop 8 made a sexual orientation classification that does not satisfy the rational basis standard and thus violates the Equal Protection Clause.  (Recall that Judge Walker's own sexuality became an issue in the case, but both a district judge and the Ninth Circuit rejected claims of bias).   Although the case attracted much scholarly attention, many commentators believed that standing was problematic.

The Court concluded:

We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.

The dissenting Justices - - - Kennedy, Thomas, Alito, and Sotomayor - - - credited the California Supreme Court's opinion on standing (answering the certified query from the Ninth Circuit) and Kennedy's dissenting opinion noted that the initiative process made the "proponents" not mere private parties:

In the end, what the Court fails to grasp or accept is the basic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century.

The dissenters also noted the "irony" in the majority's position: "A prime purpose of justiciability is to ensure vigorous advocacy, yet the Court insists upon litigation conducted by state officials whose preference is to lose the case."

The familiar liberal/conservative split of Justices is not apparent in Perry, since the issue os resolved on standing, but dominates Windsor.  Yet in both cases, sharp disagreements about the democratic process are apparent.

RR

Court Extends Unconstitutional Conditions, Takings to Monetary Exactions

A sharply divided Supreme Court (5-4) today ruled in Koontz v. St. Johns River Water Management District that a government's demand for a monetary exaction from a property owner as a condition of receiving a development permit is subject to the unconstitutional conditions doctrine in Nollan v. California Coastal Comm'n and Dolan v. City of Tigard and the Takings Clause.  

The ruling means that a local government cannot require a property owner to pay money in exchange for a building permit unless there is a "nexus" and "rough proportionality" between the government's demand and the effects of the proposed land use.  This is an expansion of the Nollan/Dolan doctrine that creates likely heightened judicial scrutiny of local land-use regulations and fees.  Although it's not clear exactly how far this expansion extends--and whether these claims, like Koontz's, would ever be successful--the ruling restricts local governments in the way they create conditions for land-use permits and is therefore a likely victory for property owners.

Nollan and Dolan say that when the government demands a property exaction in exchange for a land-use permit, there must be a "nexus" and "rough proportionality" between the exaction and the proposed land use.  If there's no "nexus" and "rough proportionality," then the condition is a government taking, and, under the Takings Clause, the government owes just compensation.  The cases represent a version of the unconstitutional conditions doctrine, because they're designed to protect against the government exacting unreasonable conditions in exchange for land-use permits, without paying just compensation for those unreasonable exactions, in violation of the Takings Clause.  ("Nexus" and "rough proportionality" protect against government coercion of a property owner, by imposing unreasonable government exactions, unrelated to the property development.)

Those cases were relevant here, because Koontz sought to develop his land in Florida, but the District said it wouldn't grant a permit until Koontz (1) deeded to the District a conservation easement on his property or (2) hired contractors to make imrpovements to District-owned wetlands several miles away.

The Court ruled that Nollan/Dolan applied to both conditions.  The Court ruled 5-4 that the Nollan/Dolan rule applied to monetary exactions (the second alternative condition), because, the Court said, monetary exactions implicate the central concern of those cases: the risk that the government might use its power in land-use permitting exact an unreasonable sum of money from a property owner that doesn't have anything to do with the proposed development.  Justice Alito wrote for the Court, joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas.

The dissent argued that this holding "runs roughshod over Eastern Enterprises v. Apfel" and "threatens to subject a vast array of land-use regulations, applied daily in States and localities throughout the country, to heightened constitutional scrutiny."  Justice Kagan wrote the dissent, joined by Justices Ginsburg, Breyer, and Sotomayor.  

(The dissent also argued that the case could be disposed of around Nollan/Dolan, because (1) "the District never demanded that Koontz give up anything (including money) as a condition for granting him a permit" and (2) "no actual taking occurred," leaving Koontz just a state-law basis for monetary damages, but the dissenters "cannot see how, and so would spare the Florida courts.")

All nine Justices agreed, however, that the Nollan/Dolan rule applied to the first alternative condition.  The question here was whether that rule applied where, as here, the government demands a condition before it approves a permit (rather than denying a permit for failure to meet the condition).  All nine said yes.  But because the government didn't take anything--it simply declined to grant a permit until a condition was satisfied--the property owner cannot get just compensation (although he might be entitled to monetary relief under state law).

The Court remanded the case to the Florida Supreme Court for a determination whether Koontz is entitled to any monetary relief under state law.  If the dissent is right, this is a futile effort.

SDS

Our Voting Rights Act Coverage, So Far

The Supreme Court today ruled in Shelby County v. Holder that the coverage formula for the preclearance provision of the Voting Rights Act exceeded congressional authority under the Fifteenth Amendment.  The ruling means that the preclearance provision of the VRA remains on the books, but sits dormant, as there is no formula specifying its coverage.  Congress can re-write the formula, but it seems unlikely that this Congress can do that in a way that would satisfy this Supreme Court.  The ruling did not touch Section 2 of the VRA, the section banning race discrimination and allowing individual case-by-case litigation against offending practices.

We posted several times this morning on the ruling; here is our coverage so far:

• Court Strikes Voting Rights Act Preclearance Coverage Formula
• Chief Justice Roberts's Paean to Equal State Sovereignty
• The Core Problem With Preclearance Coverage Under the Voting Rights Act
• What's Next for Voting Rights?
• Justice Thomas's Concurrence on Voting Rights
• Justice Ginsburg's Dissent in Shelby County

SDS

Justice Ginsburg's Dissent in Shelby County

Justice Ginsburg wrote the lengthy and detailed dissent in today's ruling striking the coverage formula for the preclearance provision of the Voting Rights Act.  She was joined by Justices Breyer, Sotomayor, and Kagan. 

(Our earlier posts on the case are here, here, here, here, and here.  Our oral argument review is here.)

Justice Ginsburg made several points:

• Congressional authority under the Reconstruction Amendments is vast, and Congress is the principal enforcer of equal voting rights under the Constitution.  The Court should defer to Congress in evaluating its enforcement mechanisms--applying rational basis review, under Chief Justice Marshall's famous formulation in McCulloch v. Maryland--and the Court should apply that test even more deferentially for a re-authorization of an act, like the VRA.
• Congress more than did its job in compiling a legislative record of vote discrimination in the jurisdictions covered by Section 4.  Justice Ginsburg carefully recounted this record and some particularly egregious violations in her dissent.
• Shelby County, Alabama, of all jurisdictions, had no business bringing this case.  Shelby County lodged a facial challenge to Sections 4 and 5, yet Shelby County itself is a clear violator--and should be in any coverage formula that Congress might devise.  That means that the coverage formula has at least one valid application--to Alabama--and cannot be struck in a facial challenge.  The VRA's severability provision only buttresses this point.
• "Equal state sovereignty," the backdrop for the Court's ruling, applies only to the conditions on states for admission to the Union, not differential treatment outside that context.  Justice Ginsburg understates: "Today's unprecedented extension of the equal sovereignty principle outside its proper domain--the admission of new States--is capable of much mischief."
• Preclearance, with the now-struck coverage formula, itself is responsible for the improvements that the Court cites in voting practices.  Without it, we face retrogression--that is, falling back into patterns of racial discrimination in the vote.  "In the Court's view, the very success of Section 5 of the Voting Rights Act demands its dormancy."

SDS

Justice Thomas's Concurrence on Voting Rights

While the Supreme Court today struck only the coverage formula for the preclearance provision of the Voting Rights Act, Justice Thomas, concurring alone, would have ruled Section 5 preclearance itself unconstitutional.  That's because, according to Justice Thomas, "[t]oday, our Nation has changed."  He points to voter turnout and registration rates, which "now approach parity," and the "rare" "[b]latantly discriminatory evasions of federal decrees."  

Against these improvements, Justice Thomas argues that Section 5 itself exceeded congressional authority, especially after Congress changed and increased the preclearance requirement in reauthorizing the VRA in 2006.

Justice Thomas wrote just for himself; he garnered no other votes.  Still, his ominous conclusion rings true, given the likely inability of Congress to re-write a coverage formula that would satisfy this Court:

While the Court claims to "issue no holding on Section 5 itself," its own opinion compellingly demonstrates that Congress has failed to justify "'current burdens'" with a record demonstrating "'current needs.'"  By leaving the inevitable conclusion unstated, the Court needlessly prolongs the demise of that provision. 

(Our earlier posts on the case are here, here, here, and here.  Our oral argument review is here.)

SDS

What's Next for Voting Rights?

In the wake of today's ruling in Shelby County v. Holder, striking the coverage formula for preclearance under the Voting Rights Act, the ball's in Congress's court.  While the Supreme Court held that the coverage formula in Section 4 is outdated and unconstitutional, it did not touch Section 5 preclearance, and it did not touch Section 2's ban on racial discrimination.  (Our posts are here, here, and here.  Our oral argument review is here.)

So, Section 2 case-by-case litigation remains in play.  Litigants can still sue jurisdictions for racial discrimination in voting on a case-by-case basis.  But the problem with this case-by-case approach, as Congress recognized when it reauthorized the VRA in 2006, is that case-by-case litigation really can't catch up with the myriad and clever, under-the-radar ways that some states and jurisdictions now discriminate in the vote--the so-called "second generation" practices.  (You can sue your state for a discriminatory vote practice in one election, but by the time the courts rule, the election is over.)  Some of these were on full display in the 2012 election.

Preclearance always provided a back-stop for this problem--that was its principal value.  Preclearance required covered jurisdictions to gain permission before making any changes to their voting laws, thus shifting the usual burden to the states to show a lack of discrimination.  It applied, under the now-struck Section 4, to jurisdictions that had a particularly ugly history of race discrimination in the vote.

Today's ruling strikes the coverage formula in Section 4, but it doesn't strike Section 5 preclearance.  That means that preclearance remains on the books, even if it lacks a coverage formula--and therefore preclearance now sits dormant.

That puts the ball back in Congress's court to re-write the Section 4 formula, to give life to preclearance again.  Whether Congress can actually do that is a different question.  While the VRA passed in 2006 by overwhelming numbers, the inertia was behind the coverage formula then.  (Remember that the same basic formula had been around, doing its job, in 2006.)  Now Congress will have to start from scratch--to write a formula that calls out certain states and jurisdictions and subjects them to the burdensome process of preclearance.  It seems unlikely that this Congress will be able and willing to do that.

If Congress doesn't respond with a valid coverage formula, Section 5 preclearance will remain on the books, but dormant.  That will leave Section 2 litigation alone to fight discrimination in the vote.  As we've seen, and as Congress found, that will almost surely be insufficient.

SDS

The Core Problem With Preclearance Coverage Under the Voting Rights Act

The five-Justice majority, led by Chief Justice Roberts, today struck the coverage formula for preclearance under the Voting Rights Act.  Our earlier posts are here and here; our oral argument review is here.

In short, Chief Justice Roberts wrote that the Section 4 coverage formula was out of date.  He took issue with Congress's "reverse engineering"--that is, figuring out which states should be covered, and working backwards to design a formula that covered them--when it reauthorized the VRA in 2006, because, he wrote, that formula was based on data compiled 40 years ago.  He wrote that the coverage formula was rational then; it is not now, 40 years later, with substantially changed circumstances.

Chief Justices Roberts acknowledged that Congress compiled voluminous data demonstrating racial discrimination, but he wrote that the coverage formula reauthorized in 2006 wasn't based on that data.  Instead, it was based on 40-year-old data, from the time Congress originally enacted the VRA.

Because the Court saw preclearance as such a dramatic action--shifting the usual burden on the plaintiff to show discrimination to a covered state or jurisdiction to show lack of discriminatory effect in a proposed change in their voting laws, and thus infringing on the "equal sovereignty of the states"--it held the coverage formula to a higher standard.  The Court said that the formula, based on 40-year-old data, was simply out of date.

Still, the Court said that Congress could rewrite the formula.  This seems a far-fetched possibility, given the politics and divisions in Congress.  If it doesn't happen, preclearance under Section 5 remains on the books, but it'll have no effect, because there will be no jurisdictions covered.

Without preclearance, the VRA loses its crown jewel.  Section 2 case-by-case litigation against offending jurisdictions remains in play, but, as Congress found, case-by-case litigation has a real hard time keeping up with the clever, under-the-radar ways that some states and jurisdictions use their voting laws to discriminate in the vote.

SDS

Court Decides Baby Veronica: Adoptive Couple v. Baby Girl

 

Badolier Bag of the Ojibwa Peoples

In an opinion by Justice Alito, a majority of the Court construed the Indian Child Welfare Act, ICWA, as not violated by the adoption of "Baby Veronica" by a white couple although her father is Native American.  The majority stated that it assumed that the biological father qualified as a "parent" under ICWA, but that the involuntary termination of his rights, if any, met ICWA.  The majority opinion is relatively brief (19 pages), but there are multiple opinions: a concurring opinion by Thomas, a concurring opinion by Breyer, a dissenting opinion by Scalia, and a lengthy dissenting opinion by Sotomayor, joined by Ginsburg and Kagan, and partially by Scalia.

 

These divisions were evident from the oral argument and our preview sets out the arguments and issues.

From the perspective of constitutional law, the case is noteworthy for its application of the doctrine of constitutional avoidance and equal protection.  At the end of the majority opinion, Justice Alito refers to the problem, noting that ICWA "was enacted to help preserve the cultural identity and heritage of Indian tribes, but" under the interpretation of the South Carolina Supreme Court that is being reversed, ICWA "would put certain vulnerable children at a great disadvantage solely because an ancestor—even a remote one— was an Indian."  Thus,

a biological Indian father could abandon his child in utero and refuse any support for the birth mother—perhaps contributing to the mother’s decision to put the child up for adoption—and then could play his ICWA trump card at the eleventh hour to override the mother’s decision and the child’s best interests. If this were possible, many prospective adoptive parents would surely pause before adopting any child who might possibly qualify as an Indian under the ICWA. Such an interpretation would raise equal protection concerns . . . .

The majority was thus seemingly convinced by the argument on behalf of the adoptive parents that such an interpretation of ICWA would be "basically relegating the child, the child to a piece of property with a sign that says, "Indian, keep off. Do not disturb." "

 

Sotomayor's opinion for the four dissenting Justices makes clear that the "majority does not rely on the theory pressed by petitioners and the guardian ad litem that the canon of constitutional avoidance compels the conclusion that ICWA is inapplicable here," but observes that the "majority nevertheless offers the suggestion that a contrary result would create an equal protection problem."  Sotomayor's opinion also seeks to call the majority to account for the tenor of the opinion:

 

The majority’s repeated, analytically unnecessary references to the fact that Baby Girl is 3/256 Cherokee by ancestry do nothing to elucidate its intima­ tion that the statute may violate the Equal Protection Clause as applied here. See ante, at 1, 6; see also ante, at 16 (stating that ICWA “would put certain vulnerablechildren at a great disadvantage solely because an ancestor—even a remote one—was an Indian” (emphasis added)). I see no ground for this Court to second-guess the membership requirements of federally recognized Indian tribes, which are independent political entities.

She later states,

The majority’s treatment of this issue, in the end, does no more than create a lingering mood of disapprobation of the criteria for membership adopted by the Cherokee Nation that, in turn, make Baby Girl an “Indian child” under the statute. Its hints at lurking constitutional problems are, by its own account, irrelevant to its statutory analysis, and accordingly need not detain us any longer.

It is Justice Thomas' concurring opinion, however, that most expansively engages with the doctrine of "constitutional avoidance," but his concern is not equal protection.  Instead, Thomas' 12 page opinion is devoted to the question of Congressional power:  "The threshold question, then, is whether the Constitution grants Congress power to override state custody law whenever an Indian is involved."  For Thomas, ICWA's grounding in the Indian Commerce Clause, Art. I, §8, cl. 3, and “other constitutional authority” that give Congress with “plenary power over Indian affairs,” is constitutionally suspect. 

Thomas balances the lack of Congressional authority with federalism concerns, and part of his rationale rests upon family law as being within the province of the states.   It will be interesting to see how this concern is articulated in tomorrow's anticipated decision in United States v. Windsor involving the constitutionality of the federal "Defense of Marriage Act."  

RR
[image: Badolier bag of the Ojibwa via]

 

Chief Justice Roberts's Paean to Equal State Sovereignty

In striking the coverage formula for the preclearance provision in the Voting Rights Act today, Chief Justice Roberts wrote a good three-plus pages on state sovereignty--and particularly the doctrine of "equal sovereignty."  According to the Chief, the coverage formula, which the majority held outdated, violated this principle.  More: He wrote that this principle applies beyond the admission of states to the Union; it applies here.  The Chief planted this time-bomb in Northwest Austin; it's now coming home to roost.

Here's part of what he said:

Not only do States retain sovereignty under the Constitution, there is also a "fundamental principle of equal sovereignty" among the States.  [Northwest Austin (citing United States v. Louisiana); Lessee of Pollard v. Hagan; Texas v. White.]  Over a hundred years ago, this Court explained that our Nation "was and is a union of States, equal in power, dignity and authority."  [Coyle v. Smith.]  Indeed, "the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized."  Coyle concerned the admission of new States, and Katzenbach rejected the notion that the principle operated as a bar on differential treatment outside that context.  At the same time, as we made clear in Northwest Austin, the fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treeatment of States.

SDS

Court Strikes Voting Rights Act Preclearance Coverage Formula

The Supreme Court today in Shelby County v. Holder ruled that Section 4 of the Voting Rights Act is unconstitutional.  Section 4 provides the coverage formula for Section 5, the preclearance provision.  The ruling does not stirke preclearance (in Section 5); it only strikes the coverage formula (in Section 4).  Moreover, the ruling says that the coverage formula was rational in 1966, just not today.  The case leaves in place Section 2, the ban on racial discrimination in voting.

Chief Justice Roberts wrote the majority opinion, joined by Justices Scalia, Kennedy, Thomas, and Alito; Justice Ginsburg wrote the dissent, joined by Justices Breyer, Sotomayor, and Kagan.

The Court said that Congress can re-write Section 4.  If Congress cannot do that, though, or if it can only do it in a way that this Court would strike, Section 5 preclearance will have no practical effect (even if it remains on the books).  That is: with no valid coverage formula for preclearance, preclearance doesn't happen.

If so, the ruling effectively strikes the preclearance requirement.  And if so, the VRA remedy for racial discrimination in voting is Section 2--the ban on racial discrimination in voting, enforced by case-by-case litigation against offending jurisdictions.  (Preclearance, on the other hand, required historically offending jurisdictions to justify in advance any changes to their voting laws.)  The failure of case-by-case litigation to keep up with so-called "second generation" voting discrimination is one key reason why Congress reauthorized Sections 4 and 5.

So, the long-and-short of it is this: If Congress can't re-write the coverage formula in Section 4 (which seems likely, given the politics in Congress), then Section 5 preclearance is of no effect.  If so, the VRA has lost a significant, singular tool in fighting race discrimination in voting.  We will continue to see case-by-case litigation against offending jurisdictions under Section 2, but if history is any guide, that litigation will never catch up with the many and clever ways that jurisdictions use to discriminate in voting.

This is a big loss for voting rights, even as it frees up covered jurisdictions from a burdensome preclearance requirement.

SDS

IRS "Scandal" Developments and Viewpoint Discrimination Under the First Amendment

Recall the lawsuits filed against the IRS alleging viewpoint discrimination prohibited under the First Amendment for targeting "conservative" and "tea party" groups' application under  26 U.S.C. § 501(c) for tax exempt status? 

New developments may make those allegations much more difficult to prove.  The IRS "Be On the Look Out" - - - BOLO - - - lists also included groups that could be described as "Progressives" :

Common thread is the word “progressive.”  Activities appear to lean toward a new political party.  Activities are partisan and appear anti-Republican.  You see references to “blue” as being “progressive.” 

And continues that "“progressive” activities appear to show that (c)(3) may not be appropriate."

There is more from the House Ways and Means Ranking Committee Member Sander Levin in an eleven page memo.

Without the viewpoint discrimination claim, there is little to support a First Amendment challenge.  There seemingly cannot be a content challenge, for after all, content is at the heart of  §501(c) tax exemptions, which may be why some advocate for the provision's repeal.  

RR
[image: Carl Guttenberg's 1778 engraving "The Tea-Tax-Tempest" via]

Questions Raised About Justice Alito's Demeanor

Two different sources have raised serious questions about Justice Samuel Alito's judicial demeanor based on his performance on the bench during the announcements of opinions.

ConLawProf Garrett Epps over at The Atlantic calls Alito's performance a "mini-tantrum," that although silent (and thus not recorded in transcript or audio) was "clear to all with eyes, and brought gasps from more than one person in the audience." 

And in the Washington Post, Dana Millbanks writes that "Alito visibly mocked his colleague" and "shook his head from side to side in disagreement, rolled his eyes and looked at the ceiling."  

Alito's actions were prompted by Justice Ginsburg's statements regarding her dissents in two employment cases, Vance v. Ball State University, which Alito had authored and rendered from the bench, and University of Texas Southwestern Medical Center v. Nassar.

Both Epps and Millbank not only note Alito's disrepect for a colleague, but point out the gendered nature of his actions.  Millbank goes further and notes that he had earlier witnessed Alito's demonstration of "disdain for Elena Kagan and Sonia Sotomayor, the two other women on the court."

Epps compares Alito's actions to a highschooler:  Alito looked like the character in the movie "Fast Times at Ridgemont High, signaling to the homies his contempt for Ray Walston as the bothersome history teacher, Mr. Hand."  Millbank places Alito below the high school range, contended that Alito "frequently supplements words with middle-school gestures."

Perhaps the Chief Justice needs to have a conversation with Associate Justice Alito?  He might be guided by the experience of many law professors who routinely teach professionalism, including not rolling one's eyes at statements by colleagues.

RR

UPDATES:

The Rudest Justice in Slate (June 27);

Splenetic Justice: Justice Samuel Alito's Role on the Roberts Court in The Nation (June 28); 

Ignoring the facts in a character attack of Justice Alito, Letter in Washington Post by Former Clerks (June 28);

Alito's Demeanor Inspires Push to Make Court Follow Code in National Law Journal (July 1) (paywall).

Court Says Federal Law Preempts State Design-Defect Drug Claim

A sharply divided Supreme Court ruled (5-4) today in Mutual Pharmaceutical Co., Inc. v. Bartlett that the Federal Food, Drug, and Cosmetic Act, or FDCA, preempted a state-law design-defect claim against a generic drug manufacturer.  Our last post on the case is here.

The ruling means that the plaintiff's state-law design-defect case against the drug manufacturer, in which she received a jury award over $21 million for severe disfigurement and permanent disabilities after taking a generic version of the pain reliever "sulindac," is dismissed--a big victory for Mutual, and a huge victory for generic drug manufacturers in general.  It also forecloses another state-law cause of action against a generic drug manufacturer, coming, as it does, just two years after the Court in PLIVA, Inc. v. Mensing (2011) held that the FDCA preempted a state-law failure-to-warn claim against a generic manufacturer.  Under these rulings, a state law could only escape preemption by establishing a liability scheme that's not tied to a standard of care that would require changing the composition or label of a drug--perhaps an absolute liability scheme that imposes liability without any showing of breach of duty (as opposed to a strict liability scheme, like this one, according to the Court, that is tied to a breach of duty, even if not negligence).  It may be hard to imagine this scheme, however, after today's ruling.  The dissenting Justices and Barlett read the state-law claim here as an absolute liability scheme; the majority disagreed.

Of course, Congress could change this result.  Congress could simply re-write the FDCA in a way that would explicitly allow state-law claims to complement the FDCA scheme for generic manufacturers, or to otherwise provide for manufacturer-paid compensation for those injured by generic drugs.  

According to the majority, Bartlett's claim ran right into PLIVA.  That's because the Court today said that (1) the state design-defect law imposed a duty on drug manufacturers to design their drugs reasonably safely, (2) both the FDCA and the drug's simple composition prevented Mutual from changing the design of the drug (to comply with that state-law standard), and (3) therefore the only way for Mutual to satisfy the state-law standard was to strengthen its warning.  But a label change for a generic manufacturer is foreclosed by PLIVA.  Thus, according to the Court, the state-law design-defect claim conflicts with the FDCA, and it is preempted.

(The Hatch-Waxman Act, part of the FDCA, provides a easy path for generic manufacturers to put their drugs on the market, provided they show that their drugs are identical to branded equivalents and provided that they use equivalent labels.  Once approved, generic manufacturers cannot change the composition of their drug or their label without prior FDA approval.  The whole purpose of Hatch-Waxman was to ease entry into the market for generics and thus make less expensive drugs more widely available.)

Justice Breyer dissented, joined by Justice Kagan.  Justice Breyer wrote that it was not impossible for Mutual to comply with both the FDCA and the state-law design-defect judgment: Mutual could have declined to do business in the state entirely, or it could simply pay the judgment (without altering its drug's composition or label).  Moreover, Justice Breyer wrote that there was no sign that the design-defect claim stood as an obstacle to FDCA objectives.

Justice Sotomayor, joined by Justice Ginsburg.  Justice Sotomayor wrote that the FDCA allows room for state law to complement federal law and to provide remedies in cases like this.  In particular, Justice Sotomayor wrote that the state law at issue did not require Mutual to violate federal law to comply, because state law did not depend on meeting a different state standard, that is, even if it encouraged a different design it didn't require a different design.

SDS

Court Upholds Sex Offender Registration

The Supreme Court ruled (7-2) today that Congress can require a former member of the Air Force to register as a sex offender, and to punish his failure to register, for a crime he committed while in the Air Force.  The ruling in United States v. Kebodeaux means that the defendant and former airman, Kebodeaux, is subject to federal criminal sanctions for failing to register.  It also means that Congress can enact laws that are "necessary and proper" to execute other validly enacted federal laws, in a way that leads to potentially vast congressional authority.  Our last substantive post is here.

Central to the Court's ruling is that Kebodeaux was subject to a federal registration requirement when he committed his sexual offense as a member of the Air Force, and that his registration requirement under the Sex Offender Registration and Notification Act, or SORNA, was simply a continuation of that registration requirement.  In particular, the Court held that Kebodeaux was subject to a registration requirement under the Wetterling Act, SORNA precusor, when he committed his crime and when he was released from military detention as punishment for his crime.  The Court said that SORNA was simply a modification to that registration requirement.  Thus, because Kebodeaux was subject to continuing federal authority--from the time of his service, through the time of his crime, through the time of his initial registration requirement (under the Wetterling Act), through the time of his later registration requirement (under SORNA)--he could be punished for failing to register under SORNA.

Justice Breyer wrote the majority opinion.  He adopted an approach similar to his approach in United States v. Comstock, the case three years ago in which the Court upheld congressional authority to authorize a federal district court to order the civil commitment of a "sexually dangerous" federal prisoner, even beyond the term of his original sentence.  That approach looks to the original authority (here, congressional power of Military Regulation), and moves step-by-step outward to congressional acts that are necessary and proper to support the original action, or the most-recently-enacted action.  Here, Congress could punish Kebodeaux for his original sex crime, committed while he was in the Air Force; it could require him to register upon release from military custody (under the Necessary and Proper Clause); and it could alter the terms of his registration requirement later, under SORNA (under the Necessary and Proper Clause).  This approach could lead to vast congressional authority--so long as Congress can support its most recent action as "necessary and proper" to execute its last-validly-enacted law.

Chief Justice Roberts and Justice Alito each concurred in the judgment only and each wrote separately to emphasize limits to this power.  Chief Justice Roberts wrote that Justice Breyer went too far in saying how SORNA was reasonable; he thought that that might be read to support a general police power--something that Congress does not have.  Justice Alito wrote that Congress could enact SORNA, because Congress helped create the problem that SORNA is designed to address.

Justice Thomas dissented, joined in large part by Justice Scalia.

The case is on its face a narrow ruling--saying only that Congress can require continued registration of someone over whom it already has authority.  But the language and approach adopted by the majority--and joined by seven Justices--is potentially very broad, potentially leading to vast congressional authority.

SDS

Court Decides Fisher v. UT: Affirmative Action

In a 7-1 decision (recall Justice Kagan is recused) and after an extended wait from last October's oral argument, the Court reversed the Fifth Circuit's opinion in Fisher v. University of Texas rejecting an equal protection challenge to the university's affirmative action program.

Kennedy's opinion for the Court leaves affirmative action under Grutter v. Bollinger in tact, but holds that the Fifth Circuit did not apply strict scrutiny in a sufficiently rigorous manner.  Recall that in Fisher, University of Texas argued that race was only a "factor within a factor." But for Kennedy, this was not sufficient.  In some ways, Kennedy's opinion validates the "dissental" from en banc review of the controversial Judge Edith Jones.

The sticking point for the Court was the narrowly tailored prong:

Once the University has established that its goal of diversity is consistent with strict scrutiny, however, there must still be a further judicial determination that the admissions process meets strict scrutiny in its implementation. The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal. On this point, the University receives no deference. . . . True, a court can take account of a university’s experience and expertise in adopting or rejecting certain admissions processes. But, as the Court said in Grutter, it remains at all times the University’s obligation to demonstrate, and the Judiciary’s obligation to determine, that admissions processes “ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.”

Indeed, Kennedy stated that "The higher education dynamic does not change the narrow tailoring analysis of strict scrutiny applicable in other contexts."  

Kennedy's opinion upends O'Connor's adage from Adarand that  that "strict scrutiny must not be “ ‘strict in theory, but fatal in fact,’” by adding:

But the opposite is also true. Strict scrutiny must not be strict in theory but feeble in fact. In order for judicial review to be meaningful, a university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity that “encompasses a . . . broa[d] array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.”

 Justice Thomas, concurring, would reverse Grutter v. Bollinger and Justice Scalia, in a paragraph concurrence, stated that Fisher did not ask Grutter to be overruled.

Only Justice Ginsburg, in a relatively brief dissent, holds that the lower federal courts should not revisit their findings: 

I would not return this case for a second look. As the thorough opinions below show, the University’s admissions policy flexibly considers race only as a “factor of a factor of a factor of a factor” in the calculus, followed a yearlong review through which the University reached the reasonable, good-faith judgment that supposedly race-neutral initiatives were insufficient to achieve, in appropriate measure, the educational benefits of student- body diversity, and is subject to periodic review to ensure that the consideration of race remains necessary and proper to achieve the University’s educational objectives.

[citations omitted].

In sum, Fisher glosses but does not essentially change affirmative action doctrine.  It makes the narrowly tailored prong more difficult to meet, and may approach "fatal in fact," but it does leave leeway for a fact-intesive showing by a university regarding its use of race.

And it does not end the affirmative action issue.  Recall that the Court granted a petition for certiorari in Schuette v. Coalition to Defend Affirmative Action in which a majority of the en banc Sixth Circuit held Michigan's anti-affirmative action constitutional amendment, passed in 2006 as a ballot initiative Proposal 2, unconstitutional.

 RR
[image: statute of Barbara Jordan on UT campus via]