Constitutional Law Prof Blog

How Elite Lawyers Influence the Supreme Court

Check out The Echo Chamber: A Small Group of Lawyers and its Outsized Influence at the U.S. Supreme Court, a penetrating study of the influence that an elite band of attorneys exerts on the cases the Court takes up, and how it decides them. Echo Chamber is a special report by Reuters, in three parts, penned by Joan Biskupic, Janet Roberts, and John Shiffman.

The upshot: A small group of attorneys, just 66 of them, exert a tremendous influence over the cases the Court hears, with a decidedly pro-business tilt.

According to the authors, public interest lawyers may exert an influence, too--but by not filing, so as to avoid a binding ruling against them by a conservative-leaning Court. "[P]ublic interest lawyers effectively influence the court's agenda, too. They do so by declining to draft petitions for some kinds of civil rights and consumer cases. Their rationale: They do not want the Supreme Court to revisit decades-old decisions that tend to favor the liberal agenda."

The authors examined cert. petitions, and the attorneys who filed them, over a nine-year period to identify the 66 lawyers and 31 law firms that were "most active and successful before the court."

The conclusion:

The Reuters examination of the Supreme Court's docket, the most comprehensive ever, suggests that the justices essentially have added a new criterion to whether the court takes an appeal--one that goes beyond the merits of a case and extends to the merits of the lawyer who is bringing it.

The results: a decided advantage for corporate America, and a growing insularity at the court. Some legal experts contend that the reliance on a small cluster of specialists, most working on behalf of businesses, has turned the Supreme Court into an echo chamber--a place where an elite group of jurists embraces an elite group of lawyers who reinforce narrow views of how the law should be construed.

Supreme Court to Hear First Amendment Challenge to Specialty License Plate Denial

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The United States Supreme Court has granted certiorari in Walker v. Texas Sons of Confederate Veterans involving a First Amendment challenge to the denial of a specialty license plate that would display the confederate flag to the Sons of Confederate Veterans.

The Fifth Circuit's divided panel opinion, authored by Judge Edward Pardo, reversed the district judge's grant of summary judgment to Texas and concluded that the denial of a specialty license plate bearing a Confederate flag symbol constituted impermissible viewpoint discrimination under the First Amendment.  The majority concluded that a "reasonable observer" of the license plate would believe it was the speech of the automobile's owner and not the government, and thus Texas cannot constitutionally allow some viewpoints to be expressed on the license plates but not others.  Dissenting, Judge Jerry Smith contended that the doctrine of government speech articulated in the Court's unanimous Pleasant Grove City v. Summum (2009) controls: there is no meaningful distinction between the privately placed monuments in Summum and the license plates in Texas.

symbol on proposed license plate via

The constitutional status of license plates - - - whether they are specialty, vanity, or state-mandated - - - has been fertile ground for First Amendment litigation.  As we've discussed, the Fourth Circuit recently held that North Carolina's provision of a "Choose Life" specialty license plate violated the First Amendment; the New Hampshire Supreme Court invalidated a vanity license plate regulation requiring "good taste"; a Michigan federal district judge similarly invalidated a refusal of specific letters on a vanity plate; and on remand from the Tenth Circuit, the design of the Oklahoma standard license plate was upheld.

What might be called the First Amendment doctrine of license plates, following from the classic First Amendment case of Wooley v. Maynard (1977) involving compelled speech has become more complex with the introduction of specialty and vanity license plates.  Such plates do produce revenue for states, but also provoke First Amendment concerns and expensive litigation.  In granting certorari, the Court has the opportunity to settle the matter.  Or perhaps the Court will further complicate the issue of expressive license plates on our cars.

 

States Sue Feds Over President's Immigration Policy

Steven D. Schwinn, John Marshall Law School

As expected, Texas Governor-Elect Greg Abbott led 17 other states and state officials in suing the federal government over President Obama's immigration policy.

The complaint contains no surprises; everything Abbott said would be in it is there. And as expected, it reads more like a political ad (in numbered paragraphs) than a serious legal complaint.

The complaint argues that the President, through DACA and administration immigration policies, caused a humanitarian crisis by encouraging illegal immigration and then turning a blind eye to undocumented immigrants within the country. It contends that the President, having created this crisis, now makes it even worse by authorizing an even larger class of certain undocumented immigrants to stay. The plaintiffs claim that even President Obama previously said, repeatedly (with quotes), that taking the kind of action that he took would have exceeded his authority. This all appears to be just context, or even political blustering; the plaintiffs don't say why or how any of it bears on their legal claims.

The complaint discusses the OLC memo that provides legal justification for President Obama's policy, but doesn't seriously try to undermine it. The complaint says only that the OLC justifies President Obama's policy based in part "on much smaller and more targeted deferred action programs that previous Congresses approved," such as "deferred action for victims of violence and trafficking, family members of U.S. citizens killed in combat, and family members of individuals killed in the September 11 attacks."

That's true, as far as it goes. But it also woefully under-describes the OLC analysis. The complaint doesn't take issue with the other components of the OLC memo, like the statutory analysis, e.g. The plaintiffs appended the OLC memo to their complaint.

The plaintiffs argue that the President's policy violates the Take Care Clause and the APA. As to the Take Care Clause, the complaint says, "the President admitted that he 'took an action to change the law.' The Defendants could hardly contend otherwise because a deferred action program with an acceptance rate that rounds to 100% is a de facto entitlement--one that even the President and OLC previously admitted would require a change to the law." As to the APA, the complaint alleges that the President's policy made law without proper authority, and without following notice-and-comment rulemaking procedures.

Eleventh Circuit Finalizes Rejection of Constitutionality of Florida Drug Testing of Welfare Recipients

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its 54 page opinion today in Lebron v. Sec't Florida Dep't of Children & Families,  a unanimous panel of the Eleventh Circuit held that Florida Statute §414.0652 requiring drug testing of all persons who receive public benefits is unconstitutional.

Recall that a previous panel (of three different judges) had affirmed a district judge's grant of a preliminary injunction against the statute.  The district judge then entered a permanent injunction and this appeal followed.

Today's opinion holds that the statute violates the Fourth Amendment because Florida "failed to meet its burden of establishing a substantial special need to drug test all TANF applicants without any suspicion."  Importantly, the court also held that

the State cannot circumvent constitutional concerns by requiring that applicants consent to a drug test to receive TANF payments. When a government benefit is conditioned on suspicionless drug testing, the voluntariness of the program is properly viewed as a factor baked into the special needs reasonableness analysis, not as an exception to it.

The court rejected Florida's reliance "on unconstitutional conditions cases that arose in different contexts," such as Rust v. Sullivan, stating that  "the consent inquiry is included within the special needs analysis" in the Fourth Amendment context.

The court concludes:

the State cannot use consent of the kind exacted here -- where it is made a condition of receiving government benefits -- to wholly replace the special needs balancing analysis. We respect the State’s overarching and laudable desire to promote work, protect families, and conserve resources. But, above all else, we must enforce the Constitution and the limits it places on government. If we are to give meaning to the Fourth Amendment’s prohibition on blanket government searches, we must -- and we do -- hold that § 414.0652 crosses the constitutional line.

While Florida and its governor have been adamant in defending the constitutionality of mandatory drug-testing, the federal courts have been just as adamant that such drug-testing is unconstitutional.  But perhaps Florida will seek certiorari and a chance to validate this policy.

 

Eleventh Circuit Denies Stay of Same-Sex Marriage Ban Injunction in Florida

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In August Judge Robert Hinkle of the Northern District of Florida found in Brenner v. Scott that Florida's same-sex marriage bans in the constitution as Article I §27 and Florida Statutes §741.04(1) violated the Fourteenth Amendment. 

Today, an Eleventh Circuit panel consisting of Judges Frank Hull, Charles Wilson, and Aldaberto Jordon in a brief Order in Brenner v. Armstrong granted expedited treatment of a motion to extend the stay of the preliminary injunction, but denied the motion. 

Elbert P. Tuttle Courthouse in Atlanta

The Order concluded:

The stay of preliminary injunctions entered by the District Court expires at the end of the day on January 5, 2015.

Thus, unless there is en banc review or a United States Supreme Court stay, same-sex marriages will begin in Florida in first days of the new year.

Supreme Court Hears Arguments on "Facebook Threats" Case: Elonis v. US

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The United States Supreme Court heard oral arguments today in the "facebook threats" case, Elonis v. United States.  As we previously discussed when the Court granted certiorari, the Third Circuit panel opinion unanimously upheld the conviction of Anthony Elonis under 18 U. S. C. §875(c), rejecting his contention that the statute requires subjective proof of his intent to threaten, rather than objective proof.  There is a split in circuits on whether subjective intent is required to make the statute constitutional after the Court's decision in Virginia v. Black in which the Court declared a Virginia statute provided that cross-burning was "prima facie evidence" of a intent to intimidate.   The doctrine of "true threats" has long been a fraught one.  As in other oft-called categorical exclusions from the First Amendment, the operative legal query is definitional: if the speech is a "true threat," the speech is not protected; if it is not a "true threat," then it is protected speech.  Equally fraught, as we previously discussed, can be repeating the content of the speech that may or may nor be a true threat given that the "adult content" may run afoul of the policies of internet providers or advertisers.

Today's argument steered clear of specific language of the threats and focused on how a true threat must be proven, or more specifically, how the jury instructions should cabin the definitions.  For the petitioner, John Elwood, argued that there needed to be specific intent and that negligence or a reasonable person standard was insufficient.  But there were further discussions about whether there must be knowledge and/or purpose.  During the argument of Michael Dreeben, Deputy Solicitor General, Justice Alito phrased it this way:

My understanding of the Model Penal Code levels of mens rea is that there is a distinction, but a razor-­thin distinction, between purpose and knowledge. So the idea that backing off from purpose to knowledge is going to make very much practical difference, I think is fanciful. There is a considerable difference between ­­ distance between knowledge and recklessness.

Although much of the argument delved into common law and Model Penal Code doctrine, the arguments made clear that the First Amendment is intertwined any distinctions.  The question of "valuable speech" was raised by Justice Scalia, but it was the discussions of rap lyrics that focussed the First Amendment questions most sharply.  The Deputy Solicitor General had a difficult time arguing "context": knowing when rap lyrics are entertainment rather than serious threats. Chief Justice Roberts quoted lyrics from the Petitioner's brief - - - lyrics from rap star Emimen - - - and wondered whether these could be prosecuted.  On rebuttal, Mr. Elwood noted that Elonis posted "long and painful to read" rap even before the protection order on behalf of Elonis' wife was entered.  However, Justice Alito did not seem convinced:

Well, this sounds like a roadmap for threatening a spouse and getting away with it. So you ­­ you put it in rhyme and you put some stuff about the Internet on it and you say, I'm an aspiring rap artist.  And so then you are free from prosecution.

The issue here is actual criminalization of the speech, but the use of rap lyrics to prove "intent" in a criminal trial as in the New Jersey Supreme Court case earlier this year might not have been too far from the Court's mind.

At least a few Justices, including Chief Justice Roberts, seemed troubled by the line between true threats and artistic speech.

 

Barry University Con Law Forum

The student chapter of the American Constitution Society at Barry University School of Law (Orlando) will host its First Annual Constitutional Law Scholars Forum on Friday, March 20, 2015. Here's the formal announcement..

The hosts invite scholarly proposals on constitutional law at any stage of pre-publication development, from an early idea to editing. Hosts also invite proposals on innovative approaches to teaching con law.

Proposals are due by January 15, 2015, to Ms. Fran Ruhl, Program Administrator, at [email protected], with "Constitutional Law Scholars Forum" in the subject line.