Constitutional Law Prof Blog

Court to Take Up Challenge to Right to Abortion, Roe v. Wade

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

The Supreme Court agreed to hear a case challenging Mississippi's ban on abortions after 15 weeks of pregnancy, except in cases of medical emergencies or severe fetal abnormality. The case, Dobbs v. Jackson Women's Health Organization, threatens the fundamental right to an abortion under Roe and Casey.

That's because with the addition of Justice Barrett (replacing Justice Ginsburg), there are now six solid votes against the fundamental right to an abortion. This counts Chief Justice Roberts, who only begrudgingly voted to overturn state restrictions on abortion last Term in June Medical. Chief Justice Roberts joined the four progressives in that case, but wrote separately to base his vote on stare decisis, and the Court's 2016 decision in Hellerstedt, a case with virtually identical facts. There's no guarantee that he'd vote to uphold or defer to Roe and Casey in the same way. Even if he did, though, there'd still be five likely votes to overturn Roe.

Still, the case gives the Court some room to sharply curtail the right to abortion without necessarily overturning Roe.

The QP is whether all pre-viability prohibitions on elective abortions are unconstitutional. Here's the cert. petition; here's the Court's docket.

 

Circuit Judge Takes on Standing Doctrine

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

The Eleventh Circuit ruled that a plaintiff had standing to sue for monetary damages for a "stigmatic injury" after a municipality failed to add captions to its online videos in violation of the ADA.

One of the panel judges, Judge Newsom, used the routine standing case to write a very un-routine concurrence (starting on page 11), lodging a frontal assault on the injury-in-fact requirement for standing and arguing for an "Article II approach." Here's the gist:

First, in my view, a "Case" exists within the meaning of Article III, and a plaintiff thus has what we have come to call "standing," whenever he has a legally cognizable cause of action, regardless of whether he can show a separate, stand-alone factual injury. Second, however--and it's a considerable "however"--Article II's vesting of the "executive Power" in the President and his subordinates prevents Congress from empowering private plaintiffs to sue for wrongs done to society in general or to seek remedies that accrue to the public at large.

Court Halts CDC Eviction Moratorium

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

Judge Dabney L. Friedrich (D.D.C.) ruled that the CDC lacked authority to issue its nationwide eviction moratorium. At least six other federal courts have ruled on the moratorium; all but two have halted it.

The court ruled that while the agency has some authority under the Public Health Service Act to prevent the spread of communicable diseases, it doesn't have the authority to issue a moratorium on evictions. The court said that an eviction moratorium isn't "similar in nature to" the list of examples of the kinds of actions the CDC may take under the Act.

The court rejected the government's argument that Congress ratified the eviction moratorium, and the CDC's authority to implement it under the Public Health Service Act, in the Consolidated Appropriations Act. The court noted that while the Consolidated Appropriation Act extended the moratorium until January 31, 2021, it said that Congress didn't specifically ratify the CDC's reading of the Public Health Service Act as authorizing the agency to implement the moratorium. It held that "[b]ecause Congress withdrew its support for the CDC Order on January 31, 2021, the order now stands--and falls--on the text of the Public Health Service Act alone." And, as above, that's not enough, according to the court.

The court wholly vacated the moratorium, not, as the government argued, only as to the plaintiffs in this case.

Judge Orders DOJ to Release Advice on AG Barr's Summary of Special Counsel Report

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

Judge Amy Berman Jackson (D.D.C.) ordered the Justice Department to release a memo that contains advice to former Attorney General Barr on his infamous four-page summary of the Mueller Report and his conclusion that evidence in the report didn't support an obstruction-of-justice case against former President Trump. Judge Jackson gave DOJ until May 17 to comply and release the memo, or to file a motion to stay pending appeal.

The case, Citizens for Responsibility and Ethics in Washington v. U.S. DOJ, arose when CREW filed a FOIA request for any records related to consultations between former AG Barr and DOJ's Office of Legal Counsel related to his four-page summary of the Mueller Report and his conclusion that the report didn't contain sufficient evidence to charge Trump. Barr mentioned that he had consulted with OLC in relation to his four-page letter, and his conclusion that its evidence "is not sufficient to establish that the President committed an obstruction-of-justice offense," when he later testified before Congress. (Recall that Barr purported to summarize the Mueller Report in this widely panned letter before the Report's public release. The letter misleadingly said that the Special Counsel "did not draw a conclusion--one way or the other--as to whether" former President Trump committed obstruction of justice. Barr concluded that the Report didn't contain sufficient evidence to charge Trump with obstruction.)

DOJ argued that the OLC advice was protected under FOIA Exemption 5 and the deliberative process and attorney-client privileges. Judge Jackson rejected those claims.

In short, based on an in camera review of the documents, the court recognized that Department officials wrote Barr's four-page letter before and during the time when it wrote the OLC memo. In other words, the OLC memo couldn't have been part of deliberations leading to Barr's letter, and it couldn't have provided legal advice related to Barr's letter, because Department officials drafted the letter before and simultaneously with Barr's letter. To put the finest point on it: the AG and DOJ already decided not to prosecute former President Trump before the Department wrote the OLC memo.

The court sharply criticized Barr and Department officials who provided affidavits, given that the plain evidence contradicted their claims. Here's just a flavor, on the court's analysis of the deliberative process privilege:

And of even greater importance to this decision, the affidavits are so inconsistent with evidence in the record, they are not worthy of credence. The review of the unredacted document in camera reveals that the suspicions voiced by the judge in EPIC and the plaintiffs here was well-founded, and that not only was the Attorney General being disingenuous then, but DOJ has been disingenuous to this Court with respect to the existence of a decision-making process that should be shielded by the deliberative process privilege. The agency's redactions and incomplete explanations obfuscate the true purpose of the memorandum, and the excised portions belie the notion that it fell to the Attorney General to make a prosecution decision or that any such decision was on the table at any time.

The ruling gives the DOJ until May 17 to comply and release the memo, or to appeal.

First Circuit Declines to Halt Geography-Based School Admissions Program

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

The First Circuit last week declined to enjoin Boston Public School's geography- and income-based admissions program for its elite magnet schools. The ruling says that plaintiffs are unlikely to succeed on their equal protection challenge to the admissions program.

The case, Boston Parent Coalition for Academic Excellence v. School Committee of the City of Boston, challenges the Boston Public School's admission program to Boston Latin School, Boston Latin Academy, and John D. O'Bryant School of Mathematics and Science for the 2021-22 school year. With more applicants than the schools could admit, the system turned to a two-phase admissions process. In the first phase, all students are ranked city-wide by GPA; the highest-ranked students are assigned their first choice until 20 percent of each school's seats are full. In the second phase, the 80 percent remaining seats are distributed among the city's various zip codes by population. Students are ranked by GPA within their zip codes and compete for admission with other students within their zip codes. The program admits top-ranked students in the zip code with the lowest household median income first, then moves to the zip code with the next lowest income, and so on, through the zip codes by incomes, lowest to highest.

Based on projections, Black and Latinx students would receive fewer seats than their proportional representation in the school-age population at large. White and Asian students, by contrast, would receive proportionally more seats.

Still, White and Asian students sued, arguing that they'd receive disproportionally even more seats without the zip-code-income-based program. They claimed that the program violated equal protection, because it was based on purposeful racial discrimination.

The First Circuit rejected the claim. It said that the program was racially neutral on its face, and that the plaintiffs failed to make out an Arlington Heights case of unconstitutional discriminatory impact. The court noted that the numbers alone didn't reveal a disparate impact on White or Asian students, and that the plaintiffs failed sufficiently to point to other circumstantial evidence of racial intent.

In particular, the court rejected the plaintiffs' claim that the program was impermissibly based in part on the Board's desire to diversify the schools by socioeconomic status, race, and geography: "the mere invocation of racial diversity as a goal is insufficient to subject [a facially neutral school selection plan] to strict scrutiny."

It also rejected the plaintiff's claim that some of the people involved in developing the policy sought to achieve racial balancing. "The fact that public school officials are well aware that race-neutral selection criteria--such as zip code and family income--are correlated with race and that their application would likely promote diversity does not automatically require strict scrutiny of a school system's decision to apply those neutral criteria."

The ruling leaves the program in place while the case proceeds. As a practical matter, the ruling almost certainly (absent something extraordinary) allows the Boston schools to use the program for the 2021-22 school year.