Constitutional Law Prof Blog

Obergefell as Precedent: First Monday in October

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

On the first Monday in October, the United States Supreme Court begins its Term, this time with only eight of the usual nine Justices given Justice Ginsburg's death in September.

In today's Order List of the Term, the Court denied certiorari in Davis v. Ermold to the Sixth Circuit's decision that court clerk Kim Davis did not have immunity from a damages suit. (Recall that in 2017 the Sixth Circuit allowed the damages suit to proceed). Kim Davis achieved notoriety as a clerk who refused to issue a marriage license to a same-sex couple despite the United States Supreme Court's ruling in Obergefell v. Hodges.

Two Justices on the Court who dissented in Obergefell — Thomas joined by Alito — used today's denial of certiorari to issue a "statement" (it is not a dissent as the issue is not "cleanly presented" in this case) to cast doubt on the continued validity of Obergefell:

this petition provides a stark reminder of the consequences of Obergefell. By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix. Until then, Obergefell will continue to have “ruinous consequences for religious liberty.”

Two Justices who joined the slim 5-4 majority in Obergefell  — Ginsburg and Kennedy — are no longer on the Court.  This statement sends a strong message to courts and advocates that the the Court would contemplate overruling or severely limiting Obergefell should the issue be more "cleanly presented."

Check it Out: Robson on Positive Rights in a Pandemic

Check out ConLawProf Blog's own Prof. Ruthann Robson's (CUNY) outstanding and timely piece, Positive Constitutionalism in a Pandemic: Demanding Responsibility from the Trump Administration, in the U. Akron ConLawNOW Symposium on Pandemics and the Constitution.

Robson argues for positive rights to health and life in the current crisis--"a Constitution that protects our survival"--and not just the negative rights under existing doctrine. (But she also notes that the Administration's mis-handling provides plenty of fodder even for negative rights claims.)

Read it!

Chief Justice and Senator Trade Remarks: Further Erosions of the Court's Legitimacy?

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

Chief Justice Roberts issued a rare statement today rebuking statements by Senator Chuck Schumer made while the Court was hearing arguments in June Medical Services v. Russo. The Chief Justice's statement read in full:

This morning, Senator Schumer spoke at a rally in front of the Supreme Court while a case was being argued inside. Senator Schumer referred to two Members of the Court by name and said he wanted to tell them that “You have released the whirlwind, and you will pay the price. You will not know what hit you if you go forward with these awful decisions.” Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All Members of the Court will continue to do their job, without fear or favor, from whatever quarter.

Senator Schumer's speech, reported and captured on video, included the Senator saying:

I want to tell you Gorsuch. I want to tell you Kavanaugh. You have released the whirlwind and you will pay the price. You won't know what hit you if you go forward with these awful decisions.

Schumer's "whirlwind" reference echoed Kavanaugh's statements during his confirmation hearings to the Democratic Senators, telling them “You sowed the wind, the county will reap the whirlwind.”

 

A Presidential tweet predictably followed Roberts's statement:

 

This is a direct & dangerous threat to the U.S. Supreme Court by Schumer. If a Republican did this, he or she would be arrested, or impeached. Serious action MUST be taken NOW! https://t.co/WqQUbyzaJU

— Donald J. Trump (@realDonaldTrump) March 5, 2020

As some commentators — and a spokesperson for Senator Schumer — have pointed out, Chief Justice Roberts has not issued statements defending Justices Sotomayor and Ginsburg when they were maligned by the President, as we discussed here.

Indeed, because Chief Justice Roberts has chosen to make this statement, his choices of when not to make similar statements is now a very legitimate subject of debate. These choices add to the continuing debate about the Court's own legitimacy in this fraught political climate.

Daily Read: Justice Sotomayor on Role of the Court

Dissenting from the grant of a stay in Wolf v. Cook County, Illinois, involving the controversial "public charge" immigration rule of the Trump Administration, Justice Sotomayor wrote that the Court has been "too quick" to grant the United States government's requests for stays especially as compared to not granting stays in other circumstances, including executions. Importantly, the stay at issue was not related to a nationwide injunction:

Its public-charge rule is set to go into effect in 49 of 50 States next week. The Seventh Circuit is set to consider the Illinois-specific injunction next week as well, with a decision to follow shortly thereafter. And the Government is unable to articulate how many cases—if any—this narrow injunction would affect in the meantime. In sum, the Government’s only claimed hardship is that it must enforce an existing interpretation of an immigration rule in one State—just as it has done for the past 20 years—while an updated version of the rule takes effect in the remaining 49. The Government has not quantified or explained any bur- dens that would arise from this state of the world. Indeed, until this Court granted relief in the New York cases, the Government itself did not consider this Illinois-specific harm serious enough to warrant asking this Court for relief.

These facts—all of which undermine the Government’s assertion of irreparable harm—show two things, one about the Government’s conduct and one about this Court’s own. First, the Government has come to treat “th[e] exceptional mechanism” of stay relief “as a new normal.” Barr v. East Bay Sanctuary Covenant, 588 U. S. ___, ___ (2019) (SOTOMAYOR, J., dissenting from grant of stay) (slip op., at 5). Claiming one emergency after another, the Government has recently sought stays in an unprecedented number of cases, demanding immediate attention and consuming lim- ited Court resources in each. And with each successive application, of course, its cries of urgency ring increasingly hollow. Indeed, its behavior relating to the public-charge rule in particular shows how much its own definition of ir- reparable harm has shifted. Having first sought a stay in the New York cases based, in large part, on the purported harm created by a nationwide injunction, it now disclaims that rationale and insists that the harm is its temporary inability to enforce its goals in one State.

Second, this Court is partly to blame for the breakdown in the appellate process. That is because the Court—in this case, the New York cases, and many others—has been all too quick to grant the Government’s “reflexiv[e]” requests. Ibid. But make no mistake: Such a shift in the Court’s own behavior comes at a cost.

After discussing the extensive time and resources that stay applications involve, Justice Sotomayor continued:

Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others. This Court often permits executions—where the risk of irreparable harm is the loss of life—to proceed, justifying many of those decisions on purported failures “to raise any potentially meritorious claims in a timely manner.” Murphy v. Collier, 587 U. S. ___, ___ (2019) (second statement of KAVANAUGH, J.) (slip op., at 4); see also id., at ___ (ALITO, J., joined by THOMAS and GORSUCH, JJ., dissenting from grant of stay) (slip op., at 6) (“When courts do not have ad- equate time to consider a claim, the decisionmaking process may be compromised”); cf. Dunn v. Ray, 586 U. S. ___ (2019) (overturning the grant of a stay of execution). Yet the Court’s concerns over quick decisions wither when prodded by the Government in far less compelling circumstances— where the Government itself chose to wait to seek relief, and where its claimed harm is continuation of a 20-year status quo in one State. I fear that this disparity in treatment erodes the fair and balanced decisionmaking process that this Court must strive to protect.

In brief, Justice Sotomayor has argued that some of her colleagues have been biased toward the Trump Administration's petitions.

 

Eleventh Circuit: Florida Law Mandating Indigent Voters Pay Fines and Fees Violates Equal Protection Clause

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

In an extensive opinion in Jones v. Governor of Florida, the Eleventh Circuit found that the Florida legislature's imposition of payment of all fines, fees, and restitution connected with a felony conviction as a necessary precondition for re-enfranchisement violated the Fourteenth Amendment's Equal Protection Clause.

Recall that Florida law disenfranchising persons convicted of felonies, held unconstitutional in 2018, was changed by a voter referendum to amend the Florida Constitution. Amendment 4.  Amendment 4 changed the Florida Constitution to provide:

any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.

Fla. Const. Art. VI §4.  After the amendment was passed, the Florida legislature passed SB7066, codified as Fla. Stat. §98.071 (5) which defined "completion of all terms of sentence" to include "full payment of any restitution ordered by the court, as well as "Full payment of fines or fees ordered by the court as a part of the sentence or that are ordered by the court as a condition of any form of supervision, including, but not limited to, probation, community control, or parole." 

Recall that in October 2019, United States District Judge Robert Hinkle of the Northern District of Florida held that the Florida statute requiring payment of fines, fees, and costs in order for a person convicted of a felony to have their voting rights restored is unconstitutional and should be enjoined, providing that persons affected should have the opportunity to prove their inability to pay.

The Eleventh's Circuit per curiam opinion of 78 pages concluded that the statute's requirement of payment of "legal financial obligations" (known as LFO) could not be sustained under heightened scrutiny.  While wealth classifications in equal protection do not generally merit heightened scrutiny, the Eleventh Circuit noted that

But the Supreme Court has told us that wealth classifications require more searching review in at least two discrete areas: the administration of criminal justice and access to the franchise. M.L.B. [ v. S.L.J.], 519 U.S. at 123  [1996] (“[O]ur cases solidly establish two exceptions to that general rule [of rational basis for wealth classifications]. The basic right to participate in political processes as voters and candidates cannot be limited to those who can pay for a license. Nor may access to judicial processes in cases criminal or ‘quasi criminal in nature’ turn on ability to pay.” (citations omitted)). Because Florida’s re-enfranchisement scheme directly implicates wealth discrimination both in the administration of criminal justice and in access to the franchise, we are obliged to apply some form of heightened scrutiny. Florida has implemented a wealth classification that punishes those genuinely unable to pay fees, fines, and restitution more harshly than those able to pay—that is, it punishes more harshly solely on account of wealth—and it does so by withholding access to the franchise. The observation that Florida may strip the right to vote from all felons forever does not dictate that rational basis review is proper in this case. To the contrary, settled Supreme Court precedent instructs us to employ heightened scrutiny where the State has chosen to “open the door” to alleviate punishment for some, but mandates that punishment continue for others, solely on account of wealth.

Further,

The Supreme Court has also determined that a state may not extend punishment on account of inability to pay fines or fees. See Bearden, 461 U.S. at 672–73 (holding that a state may not revoke probation—thereby extending a prison term—based on the failure to pay a fine the defendant is unable, through no fault of his own, to pay); Tate, 401 U.S. at 399 (holding that a state cannot imprison under a fine-only statute on the basis that an indigent defendant cannot pay a fine); Williams, 399 U.S. at 240–41 (holding that a period of imprisonment cannot be extended beyond the statutory maximum on the basis that an indigent cannot pay a fine).

For the Eleventh Circuit, disenfranchisement is clearly punishment, and also clearly a "continuing form of punishment." (emphasis in original). The Eleventh Circuit acknowledged that while felon disenfranchisment schemes are generally only subject to rational basis review, here, the long and short of it is that:

 once a state provides an avenue to ending the punishment of disenfranchisement—as the voters of Florida plainly did—it must do so consonant with the principles of equal protection and it may not erect a wealth barrier absent a justification sufficient to overcome heightened scrutiny.

The court then applied the form heightened scrutiny from Bearden v. Georgia (1983) including its four considerations: (1) “the nature of the individual interest affected”; (2) “the extent to which it is affected”; (3) “the rationality of the connection between legislative means and purpose”; and (4) “the existence of alternative means for effectuating the purpose.” The court rather expeditiously analyzed the individual's interests as great, the state's interests as minor, and noted the lack of realistic alternatives.

Further, the court rejected Florida's argument that the plaintiffs must demonstrate discriminatory intent:

This is a wealth discrimination case. And the Supreme Court has squarely held that [Washington v.] Davis’s intent requirement is not applicable in wealth discrimination cases. See M.L.B., 519 U.S. at 126–27 (rejecting, in the context of a wealth discrimination claim, the argument that Washington v. Davis requires proof of discriminatory intent).

The Eleventh Circuit opinion concluded that although to the "extent a felon can pay LFOs, he or she must," but clearly affirmed the district court's order enjoining the state "from preventing the plaintiffs from voting based solely on their genuine inability to pay legal financial obligations."

[image: Florida vote on Amendment 4 via]

Daily Read: GAO Finds Executive Wrongfully Withheld Funds to Ukraine

In its Report issued today, the United States Government Accountability Office found that the Executive wrongfully withheld funds Congress appropriated to Ukraine.

The Report begins:

Office of Management and Budget—Withholding of Ukraine Security Assistance

B-331564 January 16, 2020

In the summer of 2019, the Office of Management and Budget (OMB) withheld from obligation funds appropriated to the Department of Defense (DOD) for security assistance to Ukraine. In order to withhold the funds, OMB issued a series of nine apportionment schedules with footnotes that made all unobligated balances unavailable for obligation.

Faithful execution of the law does not permit the President to substitute his own policy priorities for those that Congress has enacted into law. OMB withheld funds for a policy reason, which is not permitted under the Impoundment Control Act (ICA). The withholding was not a programmatic delay. Therefore, we conclude that OMB violated the ICA.

The Report explains the constitutional and statutory frameworks, including the ICA, thusly:

The Constitution specifically vests Congress with the power of the purse, providing that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” U.S. Const. art. I, § 9, cl. 7. The Constitution also vests all legislative powers in Congress and sets forth the procedures of bicameralism and presentment, through which the President may accept or veto a bill passed by both Houses of Congress, and Congress may subsequently override a presidential veto. Id., art. I, § 7, cl. 2, 3. The President is not vested with the power to ignore or amend any such duly enacted law. See Clinton v. City of New York, 524 U.S. 417, 438 (1998) (the Constitution does not authorize the President “to enact, to amend, or to repeal statutes”). Instead, he must “faithfully execute” the law as Congress enacts it. U.S. Const., art. II, § 3.

An appropriations act is a law like any other; therefore, unless Congress has enacted a law providing otherwise, the President must take care to ensure that appropriations are prudently obligated during their period of availability. See B-329092, Dec. 12, 2017 (the ICA operates on the premise that the President is required to obligate funds appropriated by Congress, unless otherwise authorized to withhold). In fact, Congress was concerned about the failure to prudently obligate according to its Congressional prerogatives when it enacted and later amended the ICA. See generally, H.R. Rep. No. 100-313, at 66–67 (1987); see also S. Rep. No. 93-688, at 75 (1974) (explaining that the objective was to assure that “the practice of reserving funds does not become a vehicle for furthering Administration policies and priorities at the expense of those decided by Congress”).

The Constitution grants the President no unilateral authority to withhold funds from obligation. See B-135564, July 26, 1973. Instead, Congress has vested the President with strictly circumscribed authority to impound, or withhold, budget authority only in limited circumstances as expressly provided in the ICA. See 2 U.S.C. §§ 681–688. The ICA separates impoundments into two exclusive categories—deferrals and rescissions. The President may temporarily withhold funds from obligation—but not beyond the end of the fiscal year in which the President transmits the special message—by proposing a “deferral.”4 2 U.S.C.§ 684. The President may also seek the permanent cancellation of funds for fiscal policy or other reasons, including the termination of programs for which Congress has provided budget authority, by proposing a “rescission.”5 2 U.S.C. § 683.

In either case, the ICA requires that the President transmit a special message to Congress that includes the amount of budget authority proposed for deferral or rescission and the reason for the proposal. 2 U.S.C. §§ 683–684. These special messages must provide detailed and specific reasoning to justify the withholding, as set out in the ICA. See 2 U.S.C. §§ 683–684; B-237297.4, Feb. 20, 1990 (vague or general assertions are insufficient to justify the withholding of budget authority).

The burden to justify a withholding of budget authority rests with the executive branch.

The Report found that the Executive did not meet that burden.

Obviously, this Report will not end the matter. The security funds to Ukraine are at the core of the impeachment of the President by the House of Representatives; the Articles of Impeachment are being delivered to the Senate for trial. Moreover, the Report itself ends by discussing the problem of the Executive's lack of cooperation: 

OMB and State have failed, as of yet, to provide the information we need to fulfill our duties under the ICA regarding potential impoundments of FMF funds. We will continue to pursue this matter and will provide our decision to the Congress after we have received the necessary information.

We consider a reluctance to provide a fulsome response to have constitutional significance. GAO’s role under the ICA—to provide information and legal analysis to Congress as it performs oversight of executive activity—is essential to ensuring respect for and allegiance to Congress’ constitutional power of the purse. All federal officials and employees take an oath to uphold and protect the Constitution and its core tenets, including the congressional power of the purse. We trust that State and OMB will provide the information needed.

[emphasis added].

 

Another Defamation Lawsuit Against Trump Connected to Sexual Misconduct

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

In a 28 page complaint filed in New York state courts opening the case Carroll v. Trump, E. Jean Carroll has sued the president for one count of defamation.

The argument is that the president is "sued here only in his personal capacity" and implicitly that there is no presidential immunity, noting cases in which President Trump has been a plaintiff in his personal capacity, and further citing "a related case" of Zervos v. Trump in which Trump is a defendant. Recall that a New York appellate court considering Zervos earlier this year held that Trump was not immunized from defending a lawsuit in state court.

Interestingly, this paragraph avers that Trump is a "resident" of New York; Trump announced a few days ago that he had filed a "declaration of domicile" in Florida. There are other aspects of personal jurisdiction and there is no amount in the complaint that might satisfy the threshold for removal to federal court for diversity purposes.

The complaint provides a compelling explanation of E. Jean Carroll's silence about the 1995 or 1996 event in which she alleges Trump raped her in a department store dressing room as well as the rationales for changing her mind, including the death of her mother and the burgeoning #MeToo movement response to Harvey Weinstein.

As to the substantive allegations, Carroll highlights three statements — made on June 21, 22, and 24 — that were widely disseminated and accused Carroll of lying about the incident, of inventing the incident for book sales, of inventing the incident for a "political agenda," of lying about incidents with other men, and stating that Trump did not know her, had never met her, and that she was "not his type."  On reputational damages, the complaint avers that since the defamation she lost the "support and goodwill" of many of the readers of her advice column, resulting in "roughly 50% fewer letters" to which she could respond, noting that as an advice columnist she requires a "steady flood of compelling letters" seeking her advice.

Expect Trump's answer — or more probably motion to dismiss — to raise the same immunity defense as in Zervos despite the appellate court decision and perhaps a jurisdictional argument.

 

Daily Read: The Contempt Power of Congress

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

The practice and the announcement of the White House that it will not cooperate with the House of Representatives Impeachment Inquiry as we discussed here, raises the question of the resources available to Congress to enforce its subpoenas.  And as in so many cases about Congressional matters, there is a Congressional Research Service Report for that: Congressional Subpoenas: Enforcing Executive Branch Compliance, updated March 27, 2019.  

The Report includes this overview:

Congress currently employs an ad hoc combination of methods to combat non-compliance with subpoenas. The two predominant methods rely on the authority and participation of another branch of government. First, the criminal contempt statute permits a single house of Congress to certify a contempt citation to the executive branch for the criminal prosecution of an individual who has willfully refused to comply with a committee subpoena. Once the contempt citation is received, any later prosecution lies within the control of the executive branch. Second, Congress may try to enforce a subpoena by seeking a civil judgment declaring that the recipient is legally obligated to comply. This process of civil enforcement relies on the help of the courts to enforce congressional demands.

Congress has only rarely resorted to either criminal contempt or civil enforcement to combat non- compliance with subpoenas . . . . 

[footnotes omitted].

Of special note later in the Report is a discussion of "detention" of executive branch officials:

Although rare, the inherent contempt power has been used to detain executive branch officials, including for non-compliance with a congressional subpoena. During an 1879 investigation into allegations of maladministration by George F. Seward while a consul general in Shanghai, a House committee issued a subpoena to Seward for relevant documents and testimony.254 When Seward—then an ambassador to China—refused to comply, the House passed a resolution holding him in contempt and directing the Sergeant-at-Arms to take him into custody and bring him before the House. Seward was taken into custody and brought before the House, where he was ultimately released while the House considered impeachment articles.

In another example which gave rise to Marshall v. Gordon [1917], the House adopted a contempt resolution directing the Sergeant-at-Arms to arrest U.S. Attorney Snowden Marshall for an insulting letter sent to a committee chair. The arrest was then made and quickly challenged in federal court, where ultimately the Supreme Court ordered Marshall released. In doing so, the Court reaffirmed the contempt power generally, but concluded that in Marshall’s case the contempt was invalid as “not intrinsic to the right of the House to preserve the means of discharging its legislative duties.” Notably, the Court was silent on whether Marshall’s status as an executive branch official had any impact on the House’s exercise of the power.

Given these examples, and the Supreme Court’s general statements on the reach of the inherent contempt power, it would appear to be within Congress’s power to use inherent contempt to compel executive branch compliance with congressional subpoenas, at least in certain circumstances. But neither the Seward nor Marshall example involved an assertion of executive privilege, meaning that the Court did not need to consider what, if any, constraints that privilege may impose upon Congress’s exercise of its inherent contempt authority.

Moreover, an attempt by Congress to arrest or detain an executive official may carry other risks. There would appear to be a possibility that, if the Sergeant-at-Arms attempted to arrest an executive official, a standoff might occur with executive branch law enforcement tasked with protecting that official. This concern is also applicable in the event that a judicial marshal enforces a judicial order of contempt against an executive official, and perhaps will always be “attendant in high-stakes separation-of-powers controversies.”

[footnotes omitted].

There's a great deal more worth reading in this 45 page Report as what some are calling a "constitutional crisis" unfolds.

SCOTUS Terms Begins With LGBTQ Title VII Cases

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

The United States Supreme Courts 2019 Term begins with oral arguments in three cases that will impact LGBTQ equality.  To be clear, the Court is not considering constitutional law issues.  Instead all three cases involve statutory interpretation of the prohibition of discrimination "because of sex" in Title VII of the 1964 Civil Rights Act, 42 U.S.C. §2000e et. seq.

The two consolidated cases both involve sexual orientation discrimination. In Altitude Express v. Zarda, the Second Circuit en banc held that sexual orientation discrimination constituted a form of discrimination "because of sex" under Title VII, overruling previous Second Circuit decisions, and provoking the dissent of four judges.  Reaching the opposite conclusion, the Eleventh Circuit in Bostock v. Clayton County Board of Commissioners, clung to its previous precedent, first in an unpublished opinion affirming the dismissal of the complaint, and then in a denial of rehearing en banc requested by a member of the court, with two judges issuing a dissenting opinion. 

In deciding whether or not sexual orientation discrimination is included in Title VII's "because of sex" language, the primary precedent for the Court is its unanimous opinion in Oncale v. Sundowner Offshore Services (1998), authored by the late Justice Scalia.  The claim involved same-sex sexual harassment and the Court held:

We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits “discriminat[ion] . . . because of . . . sex” in the “terms” or “conditions” of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.

The third case LGBTQ Title VII case to be considered by the Court in the Term's opening days is R.G. & G.R. Harris Funeral Homes v. EEOC.  The Sixth Circuit, in its unanimous panel opinion reversing the district judge, found that discrimination "against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII" under the "because of sex" discrimination prohibition. The court found that the "Funeral Home fired Stephens because she refused to abide by her employer’s stereotypical conception of her sex" and that the religious claim under the Religious Freedom Restoration Act, RFRA, 42 U.S.C. § 2000bb–1, raised by the funeral home's owner failed because "Title VII here is the least restrictive means of furthering its compelling interest in combating and eradicating sex discrimination."

While the Court has not previously decided a case of transgender discrimination under Title VII, the Court's opinion in Price Waterhouse  v. Hopkins (1989) held that sex-stereotyping is included within the prohibition of discrimination "because of sex" under Title VII.  Hopkins is a fractured opinion, and none of the Justices who decided the case remain on the Court.

These statutory interpretation cases will provide an indication of the Court's views on LGBTQ equality, a subject last at the Court in the closely-divided same-sex case Obergefell v. Hodges (2015), decided under the Fourteenth Amendment. Further, these three Title VII cases may illuminate how the Court is considering precedent.

Finally, no matter how the Court decides these Title VII issues, Congress retains ultimately authority. In 2019, the House of Representatives passed "The Equality Act" which would amend the 1964 Civil Rights Act to include prohibitions of discrimination on the basis of sexual orientation and gender identity.  The Senate has yet to take up this legislation.

 

Impeachment Explained

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

With the news that the House of Representatives has launched an impeachment inquiry, many of us could use some explainers or refreshers on the rarely-used constitutional process of impeachment.

First, the Constitutional text. The United States Constitution provides for impeachment and removal of office for the President and other Executive officers in Article II §4:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

The Constitution divides the power to impeach and the power to adjudicate impeachment between the chambers of Congress, with the House of Representatives having the power to impeach and the Senate having the power to adjudicate the impeachment and effect removal from office.

Article I §2 provides:

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Article I §3 provides:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

The Constitution does not further detail the processes, but there is the precedent of previous impeachment processes, including those against Presidents Andrew Johnson, Richard Nixon, and William Clinton which were resolved at various stages and none of which led to conviction and removal. There is also the more frequent experience with judicial impeachments.

The Congressional Research Service has two excellent explainers on impeachment. First and of immediate interest is the report entitled The Impeachment Process in the House of Representatives.  It was updated August 2019, and although it is only 15 pages, it is an excellent and substantive discussion of the process and requirements.  A somewhat longer report from 2015 entitled Impeachment and Removal provides an overview including grounds for impeachment and trial in the Senate. As this report also notes, the question of impeachment has been held to be a nonjusticiable political question by the United States Supreme Court in Nixon v. United States, 506 U.S. 224 (1993), a case involving the impeachment of federal Judge Walter Nixon (not President Nixon, who resigned in 1974).

There have also been several good explainers in the media; here are a few:

Jennifer Haberkorn, Impeachment 101: How could Congress remove President Trump from office?, Los Angeles Times (May 30, 2019);

Ed Kilgore, The Impeachment Process Explained: What Happens to Trump Now?, New York Magazine (September 25, 2019);

Amber Phillips, What you need to know about the impeachment inquiry into Trump, Washington Post (September 25, 2019);

Charlie Savage, How the Impeachment Process Works, New York Times (September 24, 2019).

 

U.K. Supreme Court Unanimously Rules Suspension on Parliament Unlawful

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

In its opinion and judgment in R. (on behalf of Miller)  v. The Prime Minister and Cherry and others  v. Advocate General for Scotland, the U.K. Supreme Court considered whether "the advice given by the Prime Minister to Her Majesty the Queen on 27th or 28th August 2019 that Parliament should be prorogued from a date between 9th and 12th September until 14th October was lawful."  The Court's eleven Justices unanimously held it was not.

The prorogation or suspension of Parliament, as we discussed here and which the opinion discusses is the situation in which the Crown suspends Parliament, having both immediate and wider constitutional effects. After the Court's discussion of the events leading up to the prorogation, the Court articulated the issues:

1) Is the question of whether the Prime Minister’s advice to the Queen was lawful justiciable in a court of law?

(2) If it is, by what standard is its lawfulness to be judged?

(3) By that standard, was it lawful?

(4) If it was not, what remedy should the court grant?

The Court first held that the matter was justiciable: "although the courts cannot decide political questions, the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it." However, the Court reasoned that to resolve  justiciability, the court must "determine whether the present case requires it to determine where a legal limit lies in relation to the power to prorogue Parliament, and whether the Prime Minister’s advice trespassed beyond that limit, or whether the present case concerns the lawfulness of a particular exercise of the power within its legal limits." This question is "closely related to the identification of the standard by reference to which the lawfulness of the Prime Minister’s advice is to be judged."

Turning to the standard, the Court discussed the U.K.'s "unwritten Constitution;"

Although the United Kingdom does not have a single document entitled “The Constitution”, it nevertheless possesses a Constitution, established over the course of our history by common law, statutes, conventions and practice. Since it has not been codified,it has developed pragmatically, and remains sufficiently flexible to be capable of further development. Nevertheless, it includes numerous principles of law, which are enforceable by the courts in the same way as other legal principles. In giving them effect, the courts have the responsibility of upholding the values and principles of our constitution and making them effective. It is their particular responsibility to determine the legal limits of the powers conferred on each branch of government, and to decide whether any exercise of power has transgressed those limits. The courts cannot shirk that responsibility merely on the ground that the question raised is political in tone or context.

The standard — the relevant limit upon the power to prorogue — was expressed by the Court as:

that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.

Under that standard, it was clear that "the Prime Minister’s action had the effect of frustrating or preventing the constitutional role of Parliament in holding the Government to account," and this "was not a normal prorogation in the run-up to a Queen’s Speech." While the Court stated it would not inquire into the Prime Minister's motive, there must be a reason for his actions:

It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason - let alone a good reason - to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.

As for remedy, the unlawfulness of the prorogation means that "Parliament has not been prorogued," so that "the Speaker of the House of Commons and the Lord Speaker can take immediate steps to enable each House to meet as soon as possible to decide upon a way forward."

The Court's opinion is a mere 25 pages, written in an accessible style despite its details and discussions of Seventeenth Century practices. ("The 17th century was a period of turmoil over the relationship between the Stuart kings and Parliament, which culminated in civil war. That political controversy did not deter the courts from holding, in the Case of Proclamations (1611) 12 Co Rep 74, that an attempt to alter the law of the land by the use of the Crown’s prerogative powers was unlawful." ).  

There is also a four page judgment summary. 

Additionally, the UK Supreme Court has made available the fifteen minute video of President of the Supreme Court, Lady Brenda Hale, delivering the summary of judgment. It's definitely worth a watch!

New York Judge Orders Trump to Testify in Protest Tort Case

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

In her Order in Galicia v. Trump, Judge Doris Gonzalez has ordered that President Trump appear for a videotaped deposition prior to trial to provide testimony for use at trial in this tort case. 

The plaintiffs brought an action against Donald Trump,  Donald Trump for President, the Trump Organization, and Keith Schiller for events in September 2015 when plaintiffs were protesting Trump's views as he was beginning his campaign for President. Plaintiffs allege  that "several of Defendant Trump's bodyguards, including his confidant and chief security officer Keith Schiller, stormed Plaintiffs, pushed some of them down the sidewalk, using excessive force grabbed the signs from Plaintiffs and converted them to their own use." The case is proceeding to trial on claims of assault and battery, and against Donald Trump on a theory of respondeat superior.  In 2016, a state judge  granted a protective order against a motion to compel Trump's deposition before trial. When the case became ready for trial, plaintiffs issued a subpoena ad testificandum to compel Trump's testimony; Trump moved to quash, arguing that under Clinton v. Jones (1997), a president can only be deposed before trial and at the White House.

Judge Gonzalez began her discussion with a resort to the framers and Marbury v. Madison:

More than 200 years ago our founders sought to escape an oppressive, tyrannical governance in which absolute power vested with a monarch. A fear of the recurrence of tyranny birthed our three-branch government adorned with checks and balances. Chief Justice John Marshall famously stated, [t]he government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to be deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” Marbury v. Madison, 1 Cranch 137 (1803). Put more plainly, no government official, including the Executive, is above the law.

Yet as Judge Gonzalez notes, the Court resolved the question of whether the President is absolved from legal responsibility for unofficial conduct in Clinton v. Jones. Further, the New York courts resolved the issue of whether the state courts could exercise jurisdiction over the President in Zervos v. Trump. 

However, President Trump argued that his testimony could not be compelled for trial, but only at pretrial as some dicta in Clinton v. Jones indicated, and that in any event, the plaintiffs had waived the President's testimony by not appealing the earlier order finding a motion to compel premature. Further, Judge Gonzalez distinguished a Second Circuit case relied upon by Trump that depositions of "high-ranking officials" should only occur in exceptional circumstances by noting that this was the rule in litigation involving official action rather than the unofficial pre-Presidential action at issue in this case.

Judge Gonzalez ruled that "questions of fact exist" regarding Trump's "exercise of dominion and control over his employee defendants" and ordered President Trump to "appear for a videotaped deposition prior to the trial of this matter and provide testimony for the use at trial."

 

Federal District Judge Issues Preliminary Injunction to Restore Press Pass

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

In a well-considered opinion in Karem v. Trump, United States District Judge for the District of Columbia, Rudolph Contreras, issued a preliminary injunction requiring the defendants President Trump and White House Press Secretary Stephanie Grisham to restore the "hard pass" press credential to plaintiff Brian Karem.

As Judge Contreras explained, the "hard pass" is a long term press pass that the White House has made available for "decades and across many presidential administrations" to "any Washington-based journalist who regularly covers the President and can clear a Secret Service background check." In 1977, the DC Circuit Court of Appeals held that reporters have a First Amendment liberty interest in possessing a long-term so-called “hard pass”—an interest that, under the Fifth Amendment, may not be deprived without due process, Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977).

The defendants admitted that the revocation of Karem's hard pass was punitive. The revocation of Karem's hard pass came three weeks after an incident in the Rose Garden which Judge Contreras describes in detail, noting that the incident was captured on video and shared widely on the internet.

 

Judge Contreras noted repeatedly that the court did not reach Karem's First Amendment challenge, but resolved the issue on Fifth Amendment Due Process Clause grounds. One aspect of the due process challenge was procedural due process, as in Sherrill v. Knight, which the court found applicable despite the defendants' argument that Sherrill should be limited to its precise facts, situations in which the Secret Service denied a hard pass application for security reasons. Another aspect of the due process challenge was vagueness, which surfaces in Sherrill but is more directly addressed by the United States Supreme Court's opinion in FCC v. Fox (2012), in which the Court found that the FCC fleeting expletives and nudity regulations were unconstitutional.

Here, Judge Contreras found that the White House guidelines were not constitutionally adequate, even when considering the so-called "Acosta Letter" issued by the White House to the press corps in November 2018, although Grisham did not reference or seemingly rely on that letter when issuing her revocation of Karem's hard pass. 

On the balance of equities and public interest regarding the preliminary injunction, Judge Contreras noted the three week lag from the event to the discipline and also stated:

The Court understands the White House’s desire to maintain a degree of control over access and decorum, and at first glance, some might think the temporary suspension of a single reporter’s press pass to be a relatively modest exercise of such control. But as Sherrill makes clear, the conferral of White House hard passes is no mere triviality. And the need for regulatory guidance is at its highest where constitutional rights are implicated.

The White House could react by appealing to the DC Circuit — or by attempting to issue regulatory guidance that might or might not apply to Karem's actions.

 

Daily Read: Prorogation of Parliament

For American law professors, trying to understand British law developments can be challenging.

The UK House of Commons Library issued an excellent explainer on prorogation in June: a briefing paper that explains what it means to "prorogue" Parliament, under what authority it is done, and what its consequences are, with historical and international context for prorogation, and relevance to the Brexit process.

Briefly, the Prerogative power

is  exercised by the Crown on the advice of the Privy Council. In practice this process has been a formality in the UK for more than a century: the Government of the day advises the Crown to prorogue and that request is acquiesced to.

Prorogation has both immediate and wider constitutional effects. The former effects are relevant to all circumstances in which Parliament is prorogued. The less immediate effects typically take on a greater significance when the period of prorogation is longer.

The paper can be downloaded at the House of Commons here.

 

D.C. Circuit Finds Federal Policy Barring Abortion for Unaccompanied Immigrant Minors Unconstitutional

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

In its opinion in Jane Doe v. Azar, the United States Court of Appeals for the District of Columbia Circuit affirmed the trial court's injunction against the federal government's 2017 policy banning abortion access for any unaccompanied immigrant minor in federal custody.  As the per curiam opinion for the majority explained:

The claim of one minor in this case brings the policy’s breadth and operation into stark relief. She had been raped in her country of origin. After her arrival here and her placement in government custody, she learned she was pregnant as a result of the rape. She repeatedly asked to obtain a pre-viability abortion, to no avail. She remained in government custody as an unaccompanied minor because there was no suitable sponsor to whom she could be released. Nor was there any viable prospect of her returning to her country of origin: indeed, she eventually received a grant of asylum (and lawful status here) due to her well-founded fear of persecution in her country of origin. Still, the government sought to compel this minor to carry her rape-induced pregnancy to term.

She is one of the named plaintiffs who brought this challenge to the government’s policy on behalf of a class of pregnant unaccompanied minors. The district court granted a preliminary injunction in favor of the plaintiffs, and the government now appeals. We initially agree with the district court that the case is not moot, and we find no abuse of discretion in the court’s certification of a plaintiffs’ class consisting of pregnant unaccompanied minors in the government’s custody. On the merits, we sustain the district court’s preliminary injunction in principal part.

The bulk of the per curiam majority's opinion is devoted to the class action certification and mootness issues. The government contended that because the named representatives had obtained abortions, their claims were moot, and rendered them inadequate class representatives (both because of the mootness and because not all pregnant minors would choose abortions). The government further contended that other requirements for class certification were not met and that the class should be narrowed so that joinder of individual plaintiffs seeking an abortion would be possible. The majority found the district court did not abuse its discretion in certifying the class.

On the merits of the constitutional claim, the majority stated it was clear that there is a constitutional right to access abortion adjudicated under the undue burden standard and that it extends to minors, although there can be a parental consent requirement if there is a judicial bypass provision. The federal government agreed that a state could not simply ban a minor's access to abortion, but how then, the opinion asked, can the federal government defend the abortion ban policy of the ORR, the Office of Refugee Resettlement, a program in the Department of Health and Human Services, bears responsibility for the “care and placement” of unaccompanied immigrant minors (known as UACs, "Unaccompanied Alien Children")? The government offered three arguments, each of the which the majority rejected.

    *    "First, the government contends that permitting unaccompanied minors in its custody to access pre-viability abortions requires it to “facilitate” abortions, which the government says it is not obligated to do." The court, however, noted that the problem was not the government not wanting to remove barriers not of its own creation (such as poverty), but here the government creates the conditions itself: "an unaccompanied minor’s abortion hinges on ORR’s drafting and executing approval documents only because ORR itself has conditioned abortion access on its execution of approval documents." Further, the court ruled that what the government deems the “facilitation” that it wants to steer clear of giving to an unaccompanied minor, "is something it willingly gives to all others in federal custody."

    *    Second, the government asserts that unaccompanied minors may voluntarily depart the country and that the ban thus does not impose any cognizable burden. But, the court noted that"voluntary departure" is not freely available, but is at government discretion, and actually operates as a "second government veto." Moreover, even if the government were to grant a voluntary departure upon request, there is no indication of how long that process might take, and requires the minor to abandon all other requests for relief.

    *     Third, the government argues that, because many unaccompanied minors are released to sponsors, banning abortions while in ORR custody does not impose an undue burden. The court found that the sponsorship argument was "ultimately no more persuasive than its voluntary-departure one. Those arguments share important parallels. In both, the central idea is that an unaccompanied minor may find herself no longer in ORR custody—either because she voluntarily departs the country or because she is released to a sponsor—in which event she would be free to access an abortion without the burden of ORR’s policy."

Thus, the majority found that the ORR policy violated the Fifth Amendment right to due process and affirmed the district court's injunction against its enforcement.

The court remanded another portion of the district court's injunction, however, on the basis that the ORR policies involved were not necessarily clear. At issue were any policies that required disclosure of pregnancy or abortion access.  This issue was at times conflated with the access to abortion issue, and the court remanded so that the district court could "give a more fulsome account of its findings and conclusions in that regard."

In a dissenting opinion, Senior Circuit Judge Laurence Silberman devoted most of his opinion to the class certification issue, but on the merits relied heavily on the dissenting opinion of then-judge and now-Justice Kavanaugh in Garza v. Hargan (2017), concluding that the majority is "endorsing abortion on demand – at least as far as the federal Government is concerned."  Thus, the stage is set for the federal government's petition for certiorari.

 

Federal District Judge Finds Anti-Riot Act Violates First Amendment

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

In an Order in United States v. Rundo, United States District Judge Cormac J. Carney for the Central District of California dismissed an indictment against white supremacists Robert Rundo, Robert Bowman, and Aaron Eason, members of "Rise Above Movement" (RAM), concluding that the Anti-Riot Act, 18 U.S.C. §2101 violates the First Amendment as overbroad.

As Judge Carney explained in his relatively brief opinion, the Anti-Riot Act provides that:

Whoever travels in interstate or foreign commerce or uses any facility of interstate or foreign commerce, including, but not limited to, the mail, telegraph, telephone, radio, or television, with intent –

(1)  to incite a riot; or

(2)  to organize, promote, encourage, participate in, or carry on a riot; or

(3)  to commit any act of violence in furtherance of a riot; or

(4)  to aid or abet any person in inciting or participating in or carrying  on a riot or committing any act of violence in furtherance of a riot;

and who either during the course of any such travel or use or thereafter performs or attempts to perform any other overt act for any purpose specified in subparagraph [(1)–(4)] . . . [s]hall be fined under this title, or imprisoned not more than five years, or both.

Moreover, after quoting the statute's definition to riot, Judge Carney explained,

to simplify, the Anti-Riot Act defines “riot” in two ways. A riot is a public disturbance involving acts of violence, committed by at least one person in a group, which results in property damage or personal injury. This first definition coincides with the common understanding of a riot––for instance, a crowd taking to the streets and smashing windows of a business. A riot also includes a public disturbance involving the threat of violence, by persons in a group, so long as at least one person could immediately act upon the threat. This second definition, for example, would apply to a group threatening to break the windows of a business, while the group is outside the business and holding rocks in their hands.

Yet, most troubling for Judge Carney was his interpretation that the statute "also criminalizes acts taken long before any crowd gathers, or acts that have only an attenuated connection to any riot, so long as the individual acts with the required purpose. See 18 U.S.C. § 2101(a). No violence even need to occur. A defendant could be convicted for renting a car with a credit card, posting about a political rally on Facebook, or texting friends about when to meet up."

The problem for Judge Carney was that the statute has "no imminence requirement": "The Anti-Riot does not require that advocacy be directed toward inciting or producing imminent lawless action. It criminalizes advocacy even where violence or lawless action is not imminent."  Thus, Judge Carney concluded that the Anti-Riot Act eviscerates the protections of speech in Brandenburg v. Ohio (1969).  Further, Judge Carney rejected the government's argument that the Anti-Riot Act did include an imminence requirement, characterizing this as requiring "grammatical gymnastics—and some degree of hand waving–– " which the Judge was not willing to do.  Judge Carney pointed out that under the Anti-Riot Act, the statement in Hess v. Indiana (1973) ("we'll take the streets later [or again]")  would be criminalized, despite the United States Supreme Court's finding that such a statement did not meet the imminence requirement.

Finally, Judge Carney found that in balancing the "social costs" of upholding the statute or "striking it down," there were other laws— including state statutes — that could protect the public from violence or public disturbances, while enforcing the Anti-Riot Act substantially infringed on the rights of free speech and freedom of assembly.  And while Judge Carney explicitly mentioned not condoning the message of the white supremacists and wrote that "one person's protest might be another person's riot," invoking controversial issues today such as "abortion, Black Lives Matter, climate change, or healthcare," his opinion is sure to be discussed as protecting right-wing protest.

 

Daily Read: Imani Gandy on Justice Thomas's Eugenics Concurrence

Responding to Justice Thomas's concurring opinion from a denial of certiorari in Box v. Planned Parenthood of Indiana, legal commentator Imani Gandy (pictured) writes When It Comes to Birth Control and Eugenics, Clarence Thomas Gets It All Wrong.

Specifically, Gandy takes on the history of Margaret Sanger (1879-1966), who she states is not necessarily a present-day "infallible feminist hero" and certainly had the same abelist views that the Court credited in Buck v. Bell.

But, on the subject of race, Gandy writes:

The framing of Thomas’ concurrence, however, suggests that she [Sanger] did want to reduce the Black population. This framing extends to his description of the Negro Project, which Sanger created in conjunction with some of the most prominent Black civil rights leaders of the time—Franklin Frazier, Walter White, Rev. Adam Clayton Powell, Mary McLeod Bethune, and W.E.B DuBois—in order to bring birth control to the South. Thomas writes as if her mere advocacy for birth control was in and of itself racial eugenics. And he virtually ignores that Black women in the South wanted birth control and had taken their reproduction into their own hands since the days of enslavement, when women would self-induce abortions or even kill their newborns in order to save them from a life of slavery.

Gandy's commentary also provides an interesting critique of Thomas's use of a Sanger quotation by providing larger context. Gandy writes: "What Thomas leaves out is the very next sentence that Sanger wrote . . ."  and thus invites the reader to think more deeply about the history of birth control.

Predictably, Thomas's concurring opinion is provoking other commentaries, but Gandy's piece is among the most insightful.

 

Daily Read: Mueller Report and Redactions

As many wait for the Mueller Report now promised for Thursday, questions regarding the redactions mount. Two articles are worth a read.

 Jenessa Calvo-Friedman, writing from the ACLU perspective, argues that The American Public Deserves to See the Mueller Report With as Few Redactions as Possible and outlines the types of possible redactions and arguing that there should be as few redactions as possible.   She concludes that in any event, Congress must see the report without any redaction.

Professor Rick Hasen provides a list for looking at the redacted report, The Seven Things to Look for When Reading the Redacted Mueller Report, with number seven being the ultimate and most difficult:

To what extent does it look like Barr is trying to protect Trump and Trump’s family, such as Donald Trump Jr.? Despite his expected redactions, has Barr made it possible to evaluate Mueller’s reasoning or the evidence collected?

 

SCOTUS Hears Oral Argument on Scandalous or Immoral Trademarks

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

The United States Supreme Court hear oral arguments in Iancu v. Brunetti,  a First Amendment facial challenge to Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), which prohibits the Patent and Trademark Office from registering  “immoral” or “scandalous” trademarks. 

Recall that Brunetti's apparel line, named "fuct," was denied a trademark and a divided Federal Circuit Court panel held the provision unconstitutional.  Recall also that the United States Supreme Court in Matal v. Tam (2017) held that the disparagement provision in Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a) violated the First Amendment, but despite the unanimous conclusion there were fractured rationales.

Indeed, whether or not Tam resolved the issue in Brunetti was a centerpiece of the oral argument, with Justice Sotomayor essentially asking the Deputy Solicitor General, Malcolm Stewart, to distinguish Tam within the first few minutes.  Moreover, some of the unresolved issues in Tam — including the actual role of trademark registration, how trademark registration differs from direct prohibition, whether there could be any content (or viewpoint) basis on which to deny a trademark, and how the trademark program differs from other programs such as municipal advertising or government grants  — reappeared in the Brunetti argument.

The Justices seemed troubled by any argument that the Patent and Trademark Office (PTO) could reject a trademark on the basis that a majority or "substantial segment" of people might find it objectionable, especially given changing morals and issues about which segments of the population (as Justice Ginsburg asked, would this include a composite of 20 year olds).

Justice Breyer was particularly interested in whether the PTO could reject racist trademarks. For Breyer, certain racial slurs  are "stored in a different place in the brain. It leads to retention of the word. There are lots of physiological effect with very few words."  While Malcolm Stewart stated that he thought racial slurs were taken off the table by Tam, in his rebuttal he stated that " with respect to the single-most offensive racial slur, the PTO is currently holding in abeyance applications that incorporate that word" pending the possibility that the present decision could leave open the possibility that that word might be viewed as scandalous.

While many of the other hypotheticals involved profanity, obscenity, or "dirty words" (FCC v. Pacifica), Justice Breyer's concern will surely be addressed by at least one opinion when the decision is rendered in Brunetti.

Daily Read: Federal Judge Carlton Reeves on Attacks on the Judiciary

United States District Judge for the Southern District of Mississippi Carlton Reeves in a speech at the University of Virginia School of Law addressed the critiques of the judiciary and the lack of diversity in judicial appointments.  Judge Reeves recounts a history of the federal bench and equality, with some progress in diversifying the bench, but naming the present state of affairs as the "third great assault on our judiciary."

The written version of the speech includes footnotes, including references to presidential tweets.  In speaking about "this Administration’s judicial nominations, especially those confirmed with the advice and consent of the Senate," Judge Reeves noted:

Of the Article III judges confirmed under the current Administration, 90% have been white. Just one of those judges is black. Just two are Hispanic. It’s not just  about racial diversity. Barely 25% of this Administration’s confirmed judges are women. None have been black or Latina. Achieving complete gender equality on the federal bench would require us to confirm  only 23 women a  year. How hard could that be?  . . . . Think:  in a country where they  make up  just 30% of the population, non-Hispanic white men make  up nearly 70% of this Administration’s confirmed judicial appointees. That’s not what America looks like. That’s not even what the legal profession looks like.

In addition to commenting on the lack of diversity on the United States Supreme Court ("We have as many justices who have graduated from Georgetown Prep as we have Justices who have lived as a non-white person") and the duty of judges to diversify their own hiring of law clerks, Judge Reeves spoke to access to justice issues:

Courts must do more than denounce and diversify. For the attack on the judiciary aims to close the courthouse doors to those who most need justice by shrinking the size, resources, and jurisdiction of courts. Over the last 30 years,while the U.S. population has increased by over 30%; Congress has increased the number of Article III judges by just 3%. Meanwhile, there are continued attempts to close the doors to our own courtrooms. I think of heightened pleading standards, the rise of mandatory arbitration, and judges who proclaim that “prisoner civil rights cases should be eliminated from federal dockets.” Defending the judiciary requires judges to demand, not diminish, the resources they need to find truth. We must expand the reach and power of our courts, offering justice to all who claim the promise of America.

The speech is worth listening to in full: