Constitutional Law Prof Blog

Second Circuit Allows Police Officer's First Amendment Claim

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

In its opinion in Matthews v. City of New York, the Second Circuit upheld the First Amendment rights of a police officer in a unanimous panel opinion, authored by Judge Walker.

The court reversed the district judge's grant of summary judgment in favor of the City that had concluded that the police officer, Craig Matthews spoke as a public employee, not as a citizen, and that his speech was thus not protected by the First Amendment. 

At issue is the application of the closely divided Garcetti v. Ceballos  and its "clarification" in the United States Supreme Court's 2014 decision in Lane v. Franks ,regarding the "scope of employment" exclusion for First Amendment protection. Matthews alleged that he was retaliated against for speaking about an alleged quota system mandating the number of arrests, summons, and stop‐and‐frisks that police officers must conduct.  These are the same policies that have been so controversial in NYC and have been considered by the Second Circuit.

The court detailed Matthews' speech:

In February 2009, Matthews, believing that the quota system was damaging to the NYPD’s core mission, reported its existence to then‐Captain Timothy Bugge, the Precinct’s commanding officer at that time. In March and April of 2009, Matthews again reported the quota system’s existence to Captain Bugge, and, in May 2009, Matthews reported the same to an unnamed Precinct executive officer.

In January 2011, Matthews met with then‐Captain Jon Bloch, the Precinct’s new commanding officer, and two other officers in Captain Bloch’s office. Matthews told them about the quota system and stated that it was “causing unjustified stops, arrests, and summonses because police officers felt forced to abandon their discretion in order to meet their numbers,” and that it “was having an adverse effect on the precinct’s relationship with the community.”

The Second Circuit panel held that "Matthews’s speech to the Precinct’s leadership in this case was not what he was “employed to do,” unlike the prosecutor’s speech in Garcetti."  Importantly, "Matthews’s speech addressed a precinct‐wide policy.  Such policy‐oriented speech was neither part of his job description nor part of the practical reality of his everyday work."

The court also considered whether the speech had a "civilian analogue," discussing its previous opinion in Jackler v. Byrne, a 2011 opinion in which the panel had also found the speech of a police officer protected by the First Amendment.  In part, the panel's conclusion rested on the fact that "Matthews reported his concerns about the arrest quota system to the same officers who regularly heard civilian complaints about Precinct policing issues."  

In holding that Matthews' speech is protected by the First Amendment, the opinion may be further indication that the grip of Garcetti on employee speech is loosening.  It is not only Lane v. Franks, in which the United States Supreme Court unanimously reversed the Eleventh Circuit's summary opinion and the Second Circuit's previous opinion in Jackler, but cases such as the Third Circuit's Flora v. Luzerne County decided last month.  This is not to say that Garcetti does not remain a formidable obstacle to any First Amendment claim by a public employee, but only that the obstacle is becoming less insurmountable. 

Second Circuit: Community College Not Entitled to Eleventh Amendment Sovereign Immunity

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

Does a community college stand in the shoes of the state for the purposes of Eleventh Amendment immunity from suit? 

In its opinion in Leitner v. Westchester Community College, a panel of the Second Circuit answered in the negative.

Hartford Hall at WCC via

The court found that although Westchester Community College (WCC) is part of the state university system of New York (SUNY) that is entitled to Eleventh Amendment immunity, the community college is not similarly shielded.  Essentially, the question is whether the community college is more like the state or more like a local government ("community") which is not entitled to Eleventh Amendment immunity.  The court's rationale focused on the factor of the risk to the state treasury, finding it important that the state only contributes a fraction of WCC's budget, is not responsible for WCC's debts, and it is Westchester County that has the power to issue bonds and levy taxes to support WCC.  The court also considered the issue of state control. There are ten board members of WCC: the state Governor appointed four, while the county appointed five, with one board member elected by the student body. Further, the court considered the laws creating WCC, finding the statutory framework indicates its separation from SUNY.

The opinion seems straightforward even as it is acknowledges the curvatures of the landscape on which it is written. 

First, district courts have found that other SUNY community colleges are embraced by SUNY's sovereign immunity and the Second Circuit itself has found that the City University of New York is similarly entitled to sovereign immunity (even as the City of New York is not). 

Second, the court notes that other circuits examining the question whether a particular stateʹs community colleges are entitled to sovereign immunity have "unsurprisingly" reached disparate conclusions, given that the conclusions are based on state-specific inquiries into those collegesʹ fiscal and governance structures.  

Thus, having concluded that WCC is not entitled to Eleventh Amendment immunity, Carol Leitner's claim for a First Amendment violation can proceed directly against the community college, in addition to the WCC officials who are also defendants.

Morrison on Arizona Redistricting

Prof. Alan Morrison (GWU) offers his take on Arizona State Legislature v. Arizona Independent Redistricting Commission in this ACS Issue Brief. The case, scheduled for argument on March 2, tests whether Arizona's independent redistricting commission violates the Elections Clause and 2 U.S.C. Sec. 2a(c), and whether the state legislature has standing to bring the challenge.

The state legislature claims that the Commission (created by ballot initiative) violates the Elections Clause because it takes out of the hands of "the Legislature" the "Times, Places and Manner of holding Elections for Senators and Representatives."

Morrison argues that Arizona's commission is the state's "second effort at electoral reform," after the Court struck its public financing system in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett. He says that gerrymandering reformers "should be rooting hard that the Court rejects the position of the Arizona legislature."

We'll post our oral argument preview soon.

Second Circuit Reverses Itself on Qualified Immunity in Brooklyn Bridge Protest

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

A panel of the Second Circuit issued its amended opinion in Garcia v. Does now holding that the New York City police officers do have qualified immunity in the First Amendment suit arising from plaintiffs' arrests for participating in a demonstration in support of the Occupy Wall Street movement.

Recall that in December, the full Second Circuit granted review of the case.  In today's opinion, the court noted that it had withdrawn the panel opinion, was granting the petition for rehearing, and now reversing the district judge and remanding the case with instructions to dismiss the complaint.

Thus, the panel now finds that qualified immunity can be - - - and is here - - - established at the pleading stage, citing  Wood v. Moss (2014), noting that  "qualified immunity protects officials not merely from liability but from litigation, that the issue should be resolved when possible on a motion to dismiss, before the commencement of discovery, to avoid subjecting public officials to time consuming and expensive discovery procedures."  This echoes Judge Livingston's dissent in the original panel opinion.

The underlying First Amendment issue was whether defendant police officers "implicitly invited the demonstrators to walk onto the roadway of the Brooklyn Bridge, which would otherwise have been prohibited by New York law" and then arrested them without "fair warning."  Today's panel opinion now explains:

On the face of the Complaint, the officers were confronted with ambiguities of fact and law. As a matter of fact, the most that is plausibly alleged by the Complaint and the supporting materials is that the police, having already permitted some minor traffic violations along the marchers’ route, and after first attempting to block the protesters from obstructing the vehicular roadway, retreated before the demonstrators in a way that some of the demonstrators may have interpreted as affirmatively permitting their advance. Whether or not such an interpretation was reasonable on their part, it cannot be said that the police’s behavior was anything more than – at best for plaintiffs – ambiguous, or that a reasonable officer would necessarily have understood that the demonstrators would reasonably interpret the retreat as permission to use the roadway.

This "all doubts resolved in favor of the defendants" stance on a motion to dismiss for qualified immunity illustrates how very high the bar has become for protestors raising a First Amendment claim.

[image of Brooklyn Bridge via]

NJ Trial Judge Overturns Christie's Pension Cuts

Steven D. Schwinn, John Marshall Law School

A New Jersey trial judge today ruled that Governor Chris Christie's cut to the state's public pension system violated the state and federal contracts clauses. Along the way, the judge also ruled that the state's contractual obligation to fund its public pension system did not violate the state constitutional Debt Limitations Clause and Appropriations Clause, and did not impermissibly infringe on the governor's line-item veto power. Oh, and she also ruled that the trial court had jurisdiction over the case, and that it didn't present a political question.

In a case that "implicate[s] the fragile balance at the heart of the legislative process . . . where political, constitutional, and judicial forces appear to collide," this ruling has a little something for everyone.

As a result of earlier litigation, the state has a statutory obligation to fund its public pension system. And the statute is written to create a contract right on the part of public employees--so that any decision not to fully fund the system immediately implicates the state and federal contract clauses. So when Governor Christie wielded his line-item veto pen to cut the state contribution out of the legislature's appropriation bill (because of unexpectedly low revenues), the plaintiffs were waiting in the wings with their contracts clause claims. And the judge agreed with them. That part of the ruling is unremarkable.

But the Governor's creative defenses--and the court's rejection of them--demand some attention. The governor argued that the statutory obligation to fund the public pension system violated the state constitutional Debt Limitations Clause (which limits state borrowing burdens) and the Appropriations Clause. Moreover, Governor Christie said that the statutory obligation intruded upon his executive power to veto legislation. The court reviewed the text, history, and cases on the relevant state constitutional provisions and concluded that they did not override the state's statutory obligation to fund its public pension system.

The ruling means that the state has to find $1.57 billion to fund the system. Governor Christie will likely appeal.

Fifth Circuit to Rehear Off-School Speech Case

Steven D. Schwinn, John Marshall Law School

The Fifth Circuit last week granted a school district's petition for rehearing en banc in a case involving off-campus student speech. The grant means that the full Fifth Circuit will get a crack at the issue whether and how off-school student speech critical of a school employee, but not otherwise disrupting the school, is protected under the First Amendment.

The case, Bell v. Itawamba County School Board, arose when a high school student was suspended for recording and posting on his Facebook page a rap song criticizing, with vulgar and violent lyrics, two named male athletic coaches for sexually harassing female students at the school. The student, Taylor Bell, wrote the song, recorded it, and posted it off campus, at facilities unrelated to the school. While students heard the song, they shouldn't have heard it at school--no cell phones, no Facebook on campus--and it didn't cause any disruption or interference with school activities. So the majority on the three-judge panel reversed the district court and ruled for Bell:

[T]he Supreme Court's "student-speech" cases, including Tinker, do not address students' speech that occurs off campus and not at a school-approved event. The Court has not decided whether, or, if so, under what circumstances, a public school may regulate students' online, off-campus speech, and it is not necessary or appropriate for us to anticipate such a decision here. Even if Tinker were applicable to the instant case, the evidence does not support the conclusion, as required by Tinker, that Bell's Internet-posted song substantially disrupted the school's work and discipline or that school officials reasonably could have forecasted that it would do so.

Given that the Court hasn't ruled on the issue, this may be one to watch.

Philly DA Sues to Stop Death Penalty Reprieve

Steven D. Schwinn, John Marshall Law School

Philadelphia DA Seth Williams filed suit in the Supreme Court of Pennsylvania to stop Governor Tom Wolf from implementing his death penalty moratorium and reprieve for a certain condemned prisoner. DA Williams argues that Wolf exceeded his state constitutional authority in issuing these, because the governor has no power to issue a moratorium, and because the reprieve is really only a moratorium, beyond the scope of gubernatorial power.

On January 13, 2015, former Governor Tom Corbett issues a warrant scheduling Terrance Williams's execution for March 4. (Defendant Williams was convicted of first-degree murder, robbery, and conspiracy and sentenced to death.) Then on January 20, 2015, new Governor Tom Wolf, who said during his campaign that he'd issue a moratorium on the death penalty, did so. The moratorium runs "until the [bipartisan Pennsylvania Task Force and Advisory Commission] has produced its recommendation and all concerns [with the death penalty] are addressed satisfactorily."

Pursuant to the moratorium, Wolf also issued a reprieve for Defendant Williams, again, "until I have received and reviewed the forthcoming report of the Pennsylvania Task Force and Advisory Committee on Capital Punishment, and any recommendations contained therein are satisfactorily addressed."

DA Williams then filed this emergency case in the state high court, arguing that Wolf's actions exceeded his authority and violated the Pennsylvania constitutional Take Care Clause.

Here's the state constitutional reprieve power, in Article IV, Sec. 9(a):

In all criminal cases except impeachment the Governor shall have the power to remit fines and forfeitures, to grant reprieves, commutation of sentences and pardons; but no pardon shall be granted, nor sentence commuted, except on the recommendation in writing of a majority of the Board of Pardons, and, in the case of a sentence of death or life imprisonment, on the unanimous recommendation in writing of the Board of Pardons, after full hearing in open session, upon due public notice.

Under this provision, Wolf's reprieve isn't subject to approval by the Board of Pardons. But DA Williams argues that it's not really a reprieve, because it's not temporary. (It ceases when the Commission issues its report and all concerns are addressed--maybe never.) Instead, DA Williams says it's a permanent moratorium, that the governor has no authority to issue a permanent moratorium, and that the actions violate the state constitutional Take Care Clause.

If DA Williams is successful, the suit could stop Wolf's moratorium, and even his reprieve, resetting Defendant Williams's execution for March 4. If he's not successful, however, this could  mark the beginning of the end of the death penalty in Pennsylvania.

Government to Comply with District Court DAPA Injunction

DHS Secretary Jeh Johnson announced that the government would comply with the  temporary injunction issued late yesterday by Judge Andrew S. Hanen (S.D. Tex.) halting implementation of the Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, program. But the government will appeal.

Here's Judge Hanen's opinion.

Judge Hanen's ruling is based on the APA, and did not address the Take Care Clause argument. The first 60 pages is dedicated to standing. We previously posted on the case here.

Marshals Immune in Shooting

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit ruled today that deputy federal marshals enjoyed qualified immunity from a suit for damages after they shot a 16-year-old driver who hit another marshal as he drove out of an apartment parking lot.

The case, Fenwick v. Pudimott, arose after three deputy federal marshals observed Fenwick, a 16-year-old, struggling to park a car in the lot. Fenwick exited the vehicle, entered the apartment building, and came back to his car. As he backed up, the officers instructed him to halt. Instead, he drove forward toward the parking lot exit and clipped one of the officers. The other officers fired shots and struck Fenwick with four bullets. Fenwick recovered and sued.

The D.C. Circuit held that the officers enjoyed qualified immunity from suit, because, under the second prong of Saucier v. Katz, their use of deadly force didn't violate a clearly established constitutional right. The court noted that Fenwick "posed no immediate threat to either officers or bystanders when [the officers] opened fire," but also that the officers saw pedestrians and other vehicles in the vicinity just before the shooting, and that Fenwick hit one of the officers with the car. This was enough for the court to hold that the officer's use of deadly force wasn't clearly unconstitutional.

Still, the court saw it as a very close case. Given that, and undoubtedly conscious of recent instances of police abuses around the country, the court issued this caution:

[W]e emphasize that nothing in this opinion should be read to suggest that qualified immunity will shield from liability every law enforcement officer in this circuit who fires on a fleeing motorist out of asserted concern for other officers and bystanders. Outside the context of a "dangerous high-speed car chase," deadly force, as the Supreme Court made clear in Garner, ordinarily may not be used to apprehend a fleeing suspect who poses no immediate threat to others--whether or not the suspect is behind the wheel.

Judge Karen LeCraft Henderson, who concurred, didn't see it as so close. Citing the Court's ruling last Term in Plumhoff v. Rickard (holding that officers' use of deadly force to stop a driver in a high-speed chase didn't violate the Fourth Amendment), she would have resolved the case on Saucier's first prong--that the use of deadly force didn't violate the Constitution.

Standing in King v. Burwell

There's no shortage of opinion on standing in King v. Burwell, the case testing whether the IRS had authority under the Affordable Care Act to grant tax credits to purchasers of health insurance through a federally-facilitated (not state-run) exchange. The Wall Street Journal and Mother Jones wrote about the standing problems first, but now there's coverage all around the internet. 

Still, neither the government nor the Court has said anything about it.

The Court can consider the plaintiffs' standing anytime, and on its own motion. If it rules that the plaintiffs in this case lack standing, surely there will be efforts to find new plaintiffs.

But remember: The parallel case in the D.C. Circuit--which first came down the same day as King--is still in abeyance pending the outcome of King. If the Court dismisses King for lack of standing, the D.C. Circuit would likely lift its case out of abeyance and put the issue back before the Supreme Court relatively quickly (or at least quicker than ACA opponents could scrounge up new plaintiffs and start all over).

Federal Judge Orders Alabama Probate Judges to Issue Same-Sex Marriage Licenses

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

Federal District Judge Callie V. S. Granade has issued her 8 page  Order  in Strawser v. Strange regarding the applicability of her previous decision finding Alabama's same-sex marriage ban unconstitutional.

The Order concludes:

Accordingly, the Court once again makes the following declaration: It is ORDERED and DECLARED that ALA. CONST. ART. I, § 36.03 (2006) and ALA. CODE 1975 § 30-1-19 are unconstitutional because they violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. Probate Judge Don Davis is hereby ENJOINED from refusing to issue marriage licenses to plaintiffs due to the Alabama laws which prohibit same-sex marriage. If Plaintiffs take all steps that are required in the normal course of business as a prerequisite to issuing a marriage license to opposite-sex couples, Judge Davis may not deny them a license on the ground that Plaintiffs constitute same-sex couples or because it is prohibited by the Sanctity of Marriage Amendment and the Alabama Marriage Protection Act or by any other Alabama law or Order pertaining to same-sex marriage. This injunction binds Judge Don Davis and all his officers, agents, servants and employees, and others in active concert or participation with any of them, who would seek to enforce the marriage laws of Alabama which prohibit or fail to recognize same-sex marriage.

 (emphasis added)

Now the situation really is like Cooper v. Aaron: there is a direct order to state officials.

White House Sends AUMF Against ISIS to Congress

The White House today sent its long-awaited authorization for use of military force against ISIS (or ISIL) to Congress. Here's the accompanying letter from the President.

The draft AUMF authorizes the President to use "necessary and appropriate" military force against "ISIL or associated persons or forces." (The draft defines "associated persons or forces" as "individuals and organizations fighting for, on behalf of, or alongside ISIL or any closely-related successor entity in hostilities against the United States or its coalition partners.") The draft has a three-year duration, and specifically excludes the use of U.S. troops in "enduring offensive ground operations," but it contains no geographic restriction on the use of force.

The draft would also revoke the 2002 AUMF against Iraq. However, it does not revoke (or otherwise address) the sweeping 2001 AUMF, although President Obama calls for refinement, and ultimately revocation, in his accompanying letter.

The draft acknowledges that "the United States has taken military action against ISIL" already, and cites "its inherent right of individual and collective self-defense" as authority for that prior action. Last fall, the President cited his Article II powers and the 2001 AUMF as authority for military action against ISIS and the Khorasan Group.

Massachusetts Extends Right to Counsel in Private Guardianship

Steven D. Schwinn, John Marshall Law School

The Massachusetts Supreme Judicial Court ruled today that a parent in a private guardianship proceeding is entitled to counsel as a matter of due process. (The court previously ruled that a parent in a private adoption proceeding enjoyed that same right.) The case provides a categorical right to counsel under Massachusetts law, and thus stands in contrast to the case-by-case approach to a parent's federal due process right to counsel in Lassiter v. Department of Social Services.

The case, Guardianship of V.V., involved a guardianship proceeding between a minor's mother and great-grandmother. The mother was not initially represented by counsel when the lower courts awarded guardianship to the great-grandmother, although the mother obtained a lawyer later in the proceedings.

By the time the Supreme Judicial Court had a chance to rule, the case had become moot. That's because the minor was back with the mother. (The court said that the case was not moot on account of the mother obtaining a lawyer later in the proceeding. The court said the point was that the mother didn't have an attorney at the initial guardianship proceeding.) Still, the court said that the issue was capable of repetition but evading review--that it was an issue sure to come up again, and, because of the quick turn-around in guardianship cases, likely to evade appellate review.

The court held that the weighty interests and due process considerations in guardianship proceedings meant that parties to a guardianship proceeding had a categorical right to counsel. The court also noted that the state, by statute, provided counsel to parties to a guardianship proceeding where the state is a party, and that the same interests are at stake in a private guardianship proceeding.

Illinois Governor Lodges Full Frontal Assault on Public Sector Fair Share

Steven D. Schwinn, John Marshall Law School

Newly elected Illinois Governor Bruce Rauner (R) late yesterday issued an executive order that halted enforcement of the fair share provisions in state union contracts with state employees. At the same time, he filed a preemptive federal lawsuit seeking a declaratory judgment that his EO was constitutional.

The pair of moves (especially the unusual lawsuit) can only be understood as a full frontal assault on whatever is left of public sector fair share under the First Amendment after last Term's ruling in Harris v. Quinn. (And there's not much left.) Indeed, the lawsuit seems specifically engineered only to put Abood, the 1977 case upholding public sector fair share requirements, before the Court again and to topple it once and for all.

"Fair share" fees are those fees charged to nonunion members in a union shop. They're designed to cover union expenses that benefit all employees (union or not), like collective bargaining. The Supreme Court ruled in Abood in 1977 that fair share fee requirements do not violate the First Amendment (as compelled speech and association), because they are justified in order to avoid free-riding by nonunion members (that is, nonunion members who benefit from the union's activities, but fail to pay union dues) and to promote labor peace. Without fair share fee requirements, public sector unions could be hard-pressed to gain membership or collect any fees. That's because without fair share requirements every individual employee might rationally think that he or she could duck out of union membership and fees and free-ride on the union's bargaining. If enough employees think this, the unions could disappear.

The Supreme Court in recent years has chipped away at Abood, first in Knox v. Service Employees (2012) and then in Harris v. Quinn (2013). Abood's definitely holding on by just a string, but the Court hasn't specifically overruled it.

Governor Rauner's actions seem designed to do just that. Rauner's EO, halting fair share enforcement, is based on his worry that "the collective bargaining agreements force some employees to subsidize and enable union activities that they do not support," and "Illinois state employee unions are using compelled "fair share" fees to fund inherently political activities to influence the outcome of core public sector issues."

But Illinois law permits the collection of fair share fees only for nonunion members' "proportionate share of the costs of the collective bargaining process, contract administration and pursuing matters affecting wages, hours and other conditions of employment . . . ." 5 ILCS 315/6. It does not permit collection of fair share fees for other activities, like political advocacy. Thus, Illinois law is fully constitutional and comports with Abood. (Again, even if Abood is on its way out, it's still the law of the land.) Still, Governor Rauner's EO takes it head-on.

To punctuate the EO, Governor Rauner then filed a preemptive suit against the unions in federal court seeking declaratory relief that his EO is constitutional. This sounds like a nonjusticiable political question, or like Rauner lacks standing, or like the whole thing isn't yet ripe. (Shouldn't the unions be suing?) But Rauner has an answer for this (strange as it sounds): The EO renders null and void the fair share provisions in the state's collective bargaining agreements, thus creating a controversy between the Governor and unions.

The aggressive EO and the strangeness of the suit can only mean that Governor Rauner is taking on public sector fair share and Abood full force--that he's doing it because he wants his name on the case overturning Abood.

Supreme Court Denies Stay of Alabama Same-Sex Marriage While Alabama Supreme Court Chief Justice Continues the Argument

Over a dissenting opinion by Justice Thomas, joined by Justice Scalia, the Court denied the application for a stay in Strange v. Searcy.  Recall that in January, Alabama District Judge Callie V.S. Granade entered an injunction against the enforcement of the state's constitutional amendment and statutes banning same-sex marriage and the recognition of same-sex marriages from other states.

The controversial Chief Judge of the Alabama Supreme Court Roy Moore has reacted negatively to the federal court opinion, including penning a letter to the Governor arguing that the state should not - - - and need not - - - comply with the federal order.  That letter prompted an ethics complaint filed against Roy Moore from the Southern Poverty Law Center arguing that:

Chief Justice Roy Moore has improperly commented on pending and impending cases; demonstrated faithlessness to foundational principles of law; and taken affirmative steps to undermine public confidence in the integrity of the judiciary. For all these reasons, we respectfully request that this Judicial Inquiry Commission investigate the allegations in this complaint and recommend that Chief Justice Moore face charges in the Court of the Judiciary.

On February 3, the Eleventh Circuit denied the stay of Judge Granade's injunction and Judge Moore issue a 27 page memorandum addressed to Alabama Probate Judges with the intent to 

assist weary, beleaguered, and perplexed probate judges to unravel the meaning of the actions of the federal district court in Mobile, namely that the rulings in the marriage cases do not require you to issue marriage licenses that are illegal under Alabama law.

Judge Moore's argument that the state need not comply with federal decisions has prompted some commentators to make comparisons to Alabama's position during the Civil Rights Era, including a thoughtful WaPo piece by ConLawProf Ronald J. Krotoszynski Jr. at University of Alabama Law School. 

The dissenting opinion from Justice Thomas (joined by Scalia) did not mention Judge Moore by name, but did include a decisive nod to some of Moore's arguments:

Today’s decision represents yet another example of this Court’s increasingly cavalier attitude toward the States. Over the past few months, the Court has repeatedly denied stays of lower court judgments enjoining the enforcement of state laws on questionable constitutional grounds. *** It has similarly declined to grant certiorari to review such judgments without any regard for the people who approved those laws in popular referendums or elected the representatives who voted for them. In this case, the Court refuses even to grant a temporary stay when it will resolve the issue at hand in several months.

Perhaps more importantly, Justice Thomas notes that the constitutionality of same-sex marriage is now before the Court, but yet

the Court looks the other way as yet another Federal District Judge casts aside state laws without making any effort to preserve the status quo pending the Court’s resolution of a constitutional question it left open in United States v. Windsor, 570 U. S. ___ (2013).  This acquiescence may well be seen as a signal of the Court’s intended resolution of that question.

 Justice Thomas is not the only one considering whether the Court's denial of a stay and thus allowing same-sex marriages to proceed in Alabama is a "signal" of the Court's leanings in DeBoer v. Snyder.

Daily Video: Nancy Leong Interviews Scott Dodson, Editor of RBG Book

LawProf Nancy Leong's exciting new project, TheRightsCast, starts off with an interview of LawProf Scott Dodson about his new anthology, The Legacy of Ruth Bader Ginsburg just published by Cambridge University Press.  The book has a terrific array of contributors.

 Worth a watch!

 

 

 

 

Japan's Abe Plans to Revise Pacifist Constitution

Steven D. Schwinn, John Marshall Law School

Japanese PM Shinzo Abe has been making noises about revising the country's pacifist constitution--and this time not just in the interpretation. The talk comes in the wake of, and in apparent reaction to, the recent killings of two Japanese hostages by ISIS.

Article 9 of the Japanese Constitution, the pacifist provision, reads:

Renunciation of War. Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes.

In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.

Recall that PM Abe previously interpreted Article 9 to allow collective self-defense. This time, the buzz is that Abe will move to amend the text.

The Japan Times reports here.

Baude on the Supreme Court's Secret Decisions

Check out William Baude's (U. Chicago) NYT op-ed, The Supreme Court's Secret Decisions, on the many and important under-the-radar decisions that the Supreme Court makes in its orders docket and through summary reversals. Baude calls these the "shadow docket," and argues for more transparency.

Baude's op-ed is a condensed version of his recently posted Foreward: The Supreme Court's Shadow Docket, forthcoming in the NYU Journal of Law & Liberty.

Right to Strike in Canada

Steven D. Schwinn, John Marshall Law School

The Supreme Court of Canada ruled last week that the Saskatchewan Public Service Essential Services Act (PSESA), which limited the ability of public sector employees who perform essential services to strike, violated the Canadian Charter of Rights and Freedoms. At the same time, the court upheld an act that increased the level of required written support, and reduced the time period for receiving support, to certify a union.

In striking the PSESA, the court held that the Canadian Charter of Rights and Freedoms, Section 2(d), free association,  protects a fundamental right to strike, and that the PSESA wasn't saved by Section 1, the "reasonable limits" provision. The court wrote that the right to strike is "an indispensable component of" the right to bargain collectively, and "essential to realizing" the values of "human dignity, equality, liberty, and respect for the autonomy of the person and the enhancement of democracy." The court also noted that "international obligations also mandate protecting the right to strike . . . ."

The court said that the breach of Section 2(d) wasn't justified by Section 1, which "guarantees the rights and freedoms set out in [the Charter] subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The court wrote that the maintenance of essential public services is obviously "pressing and substantial," but that the PSESA wasn't sufficiently tailored. In particular, the court said that the PSESA allows too much given in defining "essential services" and the employees who perform them.

Two justices dissented, arguing that the political branches should have the flexibility to determine the scope of workers' ability to strike.

D.C. Circuit Affirms Order for One Study, but not Two, for Ads with Health Claims

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit on Friday affirmed an FTC order that required POM Wonderful, LLC, to support future ads with claims of health benefits with one scientific study. But at the same time, the court said that a Commission order requiring two studies went too far.

The case, POM Wonderful, LLC v. FTC, arose out of a Commission finding that POM Wonderful engaged in false, misleading, and unsubstantiated representations in its advertisements in violation of the FTC Act. In particular, the Commission found that POM Wonderful made unsubstantiated claims that regular consumption of POM products could treat, prevent, or reduce the risk of various ailments, including heart disease, prostate cancer, and erectile dysfunction.

The full Commission voted to hold POM Wonderful and associated parties liable for violating the FTC Act and order them to stop making misleading and inadequately supported health claims. The Commission's order also barred POM Wonderful from running future ads asserting that its products treat or prevent any disease unless it has at least two randomized, controlled human clinical trials demonstrating statistically significant results.

The D.C. Circuit ruled that POM Wonderful's ads weren't protected by the First Amendment (because they were false or misleading), and that the Commission therefore had authority to punish or prohibit them. The court also said that the First Amendment allowed the Commission to require one scientific study to support any future health-benefit claims:

Requiring RCT substantiation as a forward-looking remedy is perfectly commensurate with the Commission's assessment of liability for petitioners' past conduct: if past claims were deceptive in the absence of RCT substantiation, requiring RCTs for future claims is tightly tethered to the goal of preventing deception. To be sure, the liability determination concerned claims about three specific diseases whereas the remedial order encompasses claims about any disease. But that broadened scope is justified by petitioners' demonstrated propensity to make deceptive representations about the health benefits of their products, and also by the expert testimony supporting the necessity of RCTs to establish causation for disease-related claims generally. For purposes of Central Hudson scrutiny, then, the injunctive order's requirement of some RCT substantiation for disease claims directly advances, and is not more extensive than necessary to serve, the interest in preventing misleading commercial speech.

But the court rejected the order for two studies. That's because the Commission failed "adequately to justify a categorical floor of two RCTs for any and all disease claims."

The court rejected POM Wonderful's related statutory claims.