Thursday, January 23, 2020
The Court heard oral arguments in Espinoza v. Montana Department of Revenue regarding a state tax credit scheme for student scholarships as violating the First Amendment's religion clauses and the equal protection clause.
Under the original Tax Credit Program, the law provided a taxpayer a dollar-for-dollar tax credit based on the taxpayer’s donation to a Student Scholarship Organization. However, Montana has a constitutional provision, Art. X §6, which prohibits aid to sectarian schools, so the department of revenue added "Rule 1" to the state tax credit scheme excluding from the definition of "qualified education provider" eligible under the scheme "a church, school, academy, seminary, college, university, literary or scientific institution, or any other sectarian institution owned or controlled in whole or in part by any church, religious sect, or denomination." Parents challenged the constitutionality of Rule 1, but when the litigation reached the Montana Supreme Court, it held that the Tax Credit Program was unconstitutional under Art. X §6 and therefore it did not need to reach the issue regarding Rule 1:
Having concluded the Tax Credit Program violates Article X, Section 6, it is not necessary to consider federal precedent interpreting the First Amendment’s less-restrictive Establishment Clause. Conversely, however, an overly-broad analysis of Article X, Section 6, could implicate free exercise concerns. Although there may be a case where an indirect payment constitutes “aid” under Article X, Section 6, but where prohibiting the aid would violate the Free Exercise Clause, this is not one of those cases. We recognize we can only close the “room for play” between the joints of the Establishment and Free Exercise Clauses to a certain extent before our interpretation of one violates the other.
In the oral argument, Justice Ginsberg characterized the option exercised by the Montana Supreme Court as leveling down: "When a differential is challenged, the court inspecting the state law can level up or level down. And here it leveled down." (This "leveling down" approach occurred in Justice Ginsburg's opinion for the Court in Sessions v. Santana-Morales (2017)). And here that leveling down effected questions of standing which troubled Justices Ginsburg, Sotomayor, and Kagan in their early questions to the attorney for the petitioners — the parents and original plaintiffs — who are "three levels removed" from any injury as Sotmayor stated.
The Montana Supreme Court assumed center stage at times, with Justice Alito for example questioning not simply whether the court was wrong but whether it was discriminatory:
isn't the crucial question why the state court did what it did?
If it did what it did for an unconstitutionally discriminatory reason, then there's a problem under Village of Arlington Heights.
So I'll give you an example. The state legislature sets up a scholarship fund, and after a while, people look at the – the recipients of the scholarships, and some people say: Wow, these are mostly going to blacks and we don't like that and that's contrary to state law. So the state supreme court says: Okay,that discrimination is -- we're going to strike down the whole thing.
Is that constitutional?
The attorney for Montana, Adam Unikowsky rejected "the race analogy" stating that "we just don't think that race and religion are identical for all constitutional reasons."
Justice Breyer explained, "what he's saying is that, look, the court took the case in the Prince Edward County thing -- " or "the equivalent and said they couldn't do that. They can't shut down all the schools, even though the Constitution they didn't say had a right and so that's the similarity."
This question of the race-religion analogy persisted, with the motivation behind the Montana state constitutional provision, often known as a Blaine Amendment, being "rooted in -- in grotesque religious bigotry against Catholics," as Justice Kavanaugh phrased it. Justice Kagan seemingly rejected the notion that the court's striking down the entire program must be motivated by animus towards religion:
And I can think of many reasons why you would strike down the whole program that have nothing to do with animus toward religion. You might actually think that funding religion imposes costs and burdens on religious institutions themselves. You might think that taxpayers have conscientious objections to funding religion. You might think that funding religion creates divisiveness and conflict within a society, and that for all those reasons, funding religious activity is not a good idea and that you would rather level down and fund no comparable activity, whether religious or otherwise, than fund both. Now, none of those things have anything to do with animus towards religion . . . .
Yet soon after, Chief Justice Roberts returned to the race analogy. Later, Justice Breyer would ask:
can we--can you or could I say this: Yes, race is different from religion. Why? There is no Establishment Clause in regard to race.
The specific doctrinal arguments revolve around the extension of Trinity Lutheran Church of Columbia, Mo. v. Comer, decided in 2017, involving Missouri's state constitutional Blaine Amendment and the denial of funds to a church school playground. And more deeply, the "play in the joints" notion from Locke v. Davey — which was itself divisive in Trinity Lutheran — is implicated. At stake is the possibility that Free Exercise Clause will now overwhelm any anti-Establishment concerns.
January 23, 2020 in Courts and Judging, Equal Protection, Establishment Clause, Federalism, First Amendment, Free Exercise Clause, Fundamental Rights, Oral Argument Analysis, Race, Religion | Permalink | Comments (0)
Thursday, January 2, 2020
In their article, Reconstituting the Future: The Equality Amendment, well-known feminist theorists Catharine A. MacKinnon & Kimberlé W. Crenshaw have argued that equality needs to be re-envisioned in an intersectional and progressive manner requiring constitutional amendment. In the Yale Journal Law Forum they contend their proposal
centers on rectifying the founding acts and omissions of race and sex, separately and together, and incorporates similar but distinct inequalities. It is informed by prior efforts to integrate equality into the constitutional landscape that have been decimated by political reversals and doctrinal backlash. It aggregates the insights, aspirations, and critiques of many thinkers and actors who have seized this moment to breathe new life into the nation’s reckoning with inequality. It neither looks back to celebrate amendments whose transformative possibilities have been defeated nor participates in contemporary hand-wringing over equality’s jurisprudential limitations. It seeks to make equality real and to matter now. We argue that a new equality paradigm is necessary and present one form it could take.
The article elaborates on the rationales for each section. The entire proposed amendment reads:
The Equality Amendment
Whereas all women, and men of color, were historically excluded as equals, intentionally and functionally, from the Constitution of the United States, subordinating these groups structurally and systemically; and
Whereas prior constitutional amendments have allowed extreme inequalities of race and/or sex and/or like grounds of subordination to continue with-out effective legal remedy, and have even been used to entrench such inequalities; and
Whereas this country aspires to be a democracy of, by, and for all of its people, and to treat all people of the world in accordance with human rights principles;
Therefore be it enacted that—
Section 1. Women in all their diversity shall have equal rights in the United States and every place subject to its jurisdiction.
Section 2. Equality of rights shall not be denied or abridged by the United States or by any State on account of sex (including pregnancy, gender, sexual orientation, or gender identity), and/or race (including ethnicity, national origin, or color), and/or like grounds of subordination (such as disability or faith). No law or its interpretation shall give force to common law disadvantages that exist on the ground(s) enumerated in this Amendment.
Section 3. To fully realize the rights guaranteed under this Amendment, Congress and the several States shall take legislative and other measures to prevent or redress any disadvantage suffered by individuals or groups because of past and/or present inequality as prohibited by this Amendment, and shall take all steps requisite and effective to abolish prior laws, policies, or constitutional provisions that impede equal political representation.
Section 4. Nothing in Section 2 shall invalidate a law, program, or activity that is protected or required under Section 1 or 3.
This just-published relatively brief (22 pages) essay would make a terrific addition to any Constitutional Law syllabus, as well as any course in Feminist Legal Theory or Gender and Law.
pictured: Professors Crenshaw (left) & MacKinnon (right)
January 2, 2020 in Comparative Constitutionalism, Courts and Judging, Equal Protection, Fourteenth Amendment, Gender, Interpretation, Privacy, Race, Recent Cases, Scholarship | Permalink | Comments (0)
Tuesday, December 31, 2019
In her opinion in North Carolina State Conference of the NAACP v. Cooper, Judge Loretta Biggs of the Middle District of North Carolina issued a preliminary injunction against North Carolina’s voter ID-requirements, known as S.B. 824.
Judge Biggs found that plaintiffs’ claim that SB 824 violated the Fourteenth Amendment’s Equal Protection Clause had a likelihood of success. Although the voter-ID law was facially neutral, Judge Biggs found that it enacted a racial classification. As she explained, in Village of Arlington Heights v. Metro. Housing Dev. Corp. (1977),
the Supreme Court set forth a non-exhaustive list of factors to guide this delicate investigation. Reviewing courts should consider: (1) the law’s historical background; (2) the specific sequence of events leading up to the law’s enactment, including any departures from normal legislative procedure; (3) the law’s legislative and administrative history; and (4) whether the law’s effect “bears more heavily on one race than another.” The Court further cautioned that, because legislative bodies are “[r]arely . . . motivated solely by a single concern,” a challenger need only demonstrate that “invidious discriminatory purpose was a motivating factor.” (emphasis added). “[T]he ultimate question,” then, is whether a law was enacted “because of,” and not “in spite of,” the discriminatory effect it would likely produce.
Applying the Arlington Heights factors, Judge Biggs found that the “historical background” of the law “weighs in favor of a finding of discriminatory intent with respect to S.B. 824’s enactment”: “North Carolina has a sordid history of racial discrimination and voter suppression stretching back to the time of slavery, through the era of Jim Crow, and, crucially, continuing up to the present day.”
On the “sequence of events,” Judge Biggs found the record “mixed.” While the “parliamentary requirements” were met, when “viewed with a wider lens, the circumstances surrounding S.B. 824 are unusual.” A majority of the Republican legislators who supported a previous bill on voter-ID declared unconstitutional by the Fourth Circuit “also voted for S.B. 824, and the same legislative leaders spearheaded both bills. "Further,she found it noteworthy that "those legislators were elected, at least in part, by way of district maps which were declared unconstitutional." Additionally, "after voters ratified the voter-ID amendment, S.B. 824 was enacted along (virtually) strict party lines and over the Governor’s veto.”
As to the legislative history, including statements, Judge Biggs considered the statements of legislators after the previous bill was declared unconstitutional as well as changes proposed or adopted, and “the decision not to include public-assistance IDs as an acceptable form of identification,” despite the Fourth Circuit’s criticism.
Finally, Judge Biggs concluded that there was (or was likely to be) a racially disparate impact. Examining the specific provisions of the bill, including what types of identification were accepted and which were not:
the important metric for the Court’s purposes isn’t so much the variety of IDs as how readily they are possessed by North Carolinians of different backgrounds. In this sense, what is most striking about the state’s newly expanded list of IDs is that it continues to primarily include IDs which minority voters disproportionately lack, and leaves out those which minority voters are more likely to have.
One example was federal government identification, which was excluded. For Judge Biggs, these disparate types of identification mean not only that “minority voters will bear this effect more severely than their white counterparts,” but also that “a disproportionate number of African American and Hispanic” North Carolina citizens “could be deterred from voting or registering to vote because they lack, or believe they lack, acceptable identification and remain confused by or uninformed about S.B. 824’s exceptions.”
Thus, Judge Biggs found that the law was racially motivated. She further found that it was not supported by any of the proffered government interests.
Given that the Governor had vetoed this bill and the Fourth Circuit's decision holding a previous similar law unconstitutional, the prospects for an appeal will certainly be closely monitored.
Friday, October 18, 2019
In an opinion in Jones v. DeSantis, 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.
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."
Judge Hinkle first addressed Florida's motion to dismiss based on lack of standing and motion to abstain, finding them without merit. Judge Hinkle then discussed whether or not Amendment 4 authorized the statute extending the conditions to all restitution, fines, and fees, acknowledging that "the last word will belong to the Florida Supreme Court," on the matter of that interpretation. However, for purposes of the issue of constitutionality at this stage, the judge assumed that " “all terms of sentence” includes fines and restitution, fees even when unrelated to culpability, and amounts even when converted to civil liens, so long as the amounts are included in the sentencing document."
While the court acknowledged that a state can deny persons convicted of a felony the right to vote under the Fourteenth Amendment as construed by the Court in Richardson v. Ramirez (1974), here the state had amended its constitution not to do so, but with an exception for those persons convicted of felonies who could not meet their financial obligations. Thus, the Equal Protection Clause is implicated. On this point, Judge Hinkle found Eleventh Circuit precedent was clear, citing Johnson v. Governor of Florida, 405 F.3d 1214 (11th Cir. 2005) (en banc). The court quotes the en banc court in Johnson stating:
Access to the franchise cannot be made to depend on an individual’s financial resources. Under Florida’s Rules of Executive Clemency, however, the right to vote can still be granted to felons who cannot afford to pay restitution. . . . Because Florida does not deny access to the restoration of the franchise based on ability to pay, we affirm the district court’s grant of summary judgment in favor of the defendants on these claims.
[emphasis in original]. For Judge Hinkle, this is both the "starting point of the analysis of this issue, and pretty much the ending point."
As support for Johnson and further explication of the standard of review under equal protection doctrine, Judge Hinkle reasoned:
Johnson does not lack Supreme Court support; it is consistent with a series of Supreme Court decisions.
In one, M.L.B. v. S.L.J., 519 U.S. 102 (1996), the Court noted the “general rule” that equal-protection claims based on indigency are subject to only rational-basis review. This is the same general rule on which the Secretary [of State of Florida] places heavy reliance here. But in M.L.B. the Court said there are two exceptions to the general rule.
The first exception, squarely applicable here, is for claims related to voting. The Court said, “The basic right to participate in political processes as voters and candidates cannot be limited to those who can pay for a license.” The Court cited a long line of cases supporting this principle. In asserting that the Amendment 4 and SB7066 requirement for payment of financial obligations is subject only to highly deferential rational-basis scrutiny, the Secretary ignores this exception.
The second exception is for claims related to criminal or quasi-criminal processes. Cases applying this exception hold that punishment cannot be increased because of a defendant’s inability to pay. See, e.g., Bearden v. Georgia, 461 U.S. 660 (1983) (holding that probation cannot be revoked based on failure to pay an amount the defendant is financially unable to pay). Disenfranchisement of felons has a regulatory component, see, e.g., Trop v. Dulles, 356 U.S. 86, 96-97 (1958), and when so viewed, disenfranchisement is subject only to the first M.L.B. exception, not this second one. But when the purpose of disenfranchisement is to punish, this second exception applies. If, after adoption of Amendment 4, the purported justification for requiring payment of financial obligations is only to ensure that felons pay their “debt to society”—that is, that they are fully punished—this second M.L.B. exception is fully applicable.
Another case applying these principles is Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966), which was cited in both M.L.B. and the Johnson footnote. In Harper the Supreme Court said “[v]oter qualification has no relation to wealth.” The Court continued, “[w]ealth, like race, creed, or color, is not germane to one’s ability to participate intelligently in the electoral process.” And the Court added, “[t]o introduce wealth or payment of a fee as a measure of a voter’s qualifications is to introduce a capricious or irrelevant factor.” The Secretary says none of this is true when the voter is a felon, but the Secretary does not explain how a felon’s wealth is more relevant than any other voter’s. And Johnson plainly rejected the Secretary’s proposed distinction.
[some citations omitted]
Judge Hinkle's remedy was not to entirely enjoin the enforcement of the statute. Instead, Florida must follow its procedures and amend them if need be to allow indigent persons to demonstrate their inability to pay any restitution, fines, or fees. Nevertheless, this is a victory for those who have argued that the Florida statute undermined Amendment 4.
October 18, 2019 in Courts and Judging, Elections and Voting, Equal Protection, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Standing, State Constitutional Law | Permalink | Comments (0)
Wednesday, October 2, 2019
District Court Halts Enforcement of California Law Requiring Presidential Candidates to Release Taxes
Judge Morrison C. England, Jr., (E.D. Cal.) granted President Trump's motion for a preliminary injunction yesterday and halted enforcement of California's new requirement that presidential primary candidates file their income tax returns with the state before gaining a place on the primary ballot.
The ruling puts a temporary stop to California's effort to press President Trump to reveal his tax returns.
The case tests California's requirement that candidates in the California primary election for president file their tax returns with the state before the state will list them on the ballot. Here's the measure:
Notwithstanding any other law, the Secretary of State shall not print the name of a candidate for President of the United States on a primary election ballot, unless the candidate, at least 98 days before the presidential primary election, files with the Secretary of State copies of every income tax return the candidate filed with the Internal Revenue Service in the five most recent taxable years.
California said that it adopted the measure in order to help its voters make an informed choice among candidates in the primary election. But it was pretty clearly a blunt effort to force President Trump to file his tax returns, which the state could then make public.
The court ruled that the requirement likely violated the Article II Qualifications Clause, the First Amendment, and the Equal Protection Clause.
As to Qualifications, the court drew on U.S. Term Limits, Inc. v. Thornton, where the Court struck Arkansas's effort to impose term limits on its members of Congress. The Court in Thornton ruled that the state's term limits impermissibly added a qualification to its members of Congress over and above the minimum qualifications set in the Article I Qualifications Clause. Judge England ruled that the same principle applies to a state's additional qualifications over and above the minimums set in the Article II Qualifications Clause, and that California's requirement amounts to just such an additional qualification.
As to the First Amendment, Judge England held that California's requirement amounts to a "severe restriction" on the right to access the ballot, the right to political association, the right to vote, and the right to express political preferences. The court applied strict scrutiny and held that the requirement failed.
Finally, as to equal protection, Judge England held that the requirement impermissibly treated partisan primary candidates differently than independent candidates (who are not subject to the requirement). "The State lacks any valid interest in providing voters with more information about party-backed candidates than independent candidates, especially when such requirements can lead to the exclusion of only major party candidates on the ballot."
Tuesday, October 1, 2019
In a 130 page opinion in Students for Fair Admissions v. President and Fellows of Harvard College, Judge Allison Burroughs upheld Harvard's admissions policy that includes racial considerations. Although Harvard is a private institution and there is not sufficient state action to invoke the Equal Protection Clause of the Fourteenth Amendment, Judge Burroughs noted that it was "subject to the same standards that the Equal Protection Clause imposes upon state actors for the purposes of a Title VI claim," referencing Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq. As Judge Burroughs stated, " the controlling principles articulated by the Supreme Court in Fisher II reflect the sum of its holdings in cases concerning higher education admissions over the last forty years and now guide the application of Title VI in this case," referencing Fisher v. University of Texas at Austin (2016).
Applying strict scrutiny, Judge Burroughs first found that Harvard's interest in the educational benefits that flow from student diversity was compelling, concluding that "Harvard's goals are similar in specificity to the goals the Supreme Court found 'concrete and precise' in Fisher II."
On the more controversial issue of narrowly tailored means-chosen, the judge found there was no undue burden on any particular individual and that individuals were considered on a holistic basis. The judge specifically rejected the plaintiff's claim that the university engaged in "racial balancing." As to race-neutral means, the judge rejected the proffered race-neutral methods such as eliminating early action decisions, eliminating preferences for certain applicants (including legacy and children of Harvard employees), and preferences for economically disadvantaged students as not being "workable" methods for actually achieving racial diversity.
Judge Burrough's conclusion is especially noteworthy: she states that while the Harvard admissions policy satisfies strict scrutiny it is not perfect and administrators might benefit from "implicit bias training;" she discusses the language from Fisher II regarding data-collection and the language from Grutter v. Bollinger regarding the duration of affirmative action programs; and she quotes the esteemed author Toni Morrison of the relevance of race and the President of Harvard, Ruth Simmons on the the importance of diversity.
The plaintiff organization has proved itself determined to litigate this issue and an appeal is likely. But this thorough opinion — with more than 60 pages of factual discussion — will make its reversal a formidable task absent doctrinal changes.
Thursday, June 27, 2019
In its opinion in Rucho v. Common Cause, consolidated with Lamone v. Benisek, a sharply divided United States Supreme Court decided that the judicial branch has no role to play in challenges to redistricting based upon partisan gerrymandering.
Recall that Rucho involved the constitutionality of partisan gerrymandering in North Carolina. The major question raised by the arguments was whether the courts have any role in protecting voters from partisan gerrymandering; Recall also that in an almost 200 page opinion, the three judge court resolved the issues of justiciability and standing in favor of the plaintiffs and held that the redistricting violated equal protection.
Recall that Lamone involved the constitutionality of partisan gerrymandering in Maryland. The oral argument centered the First Amendment, but equal protection doctrine did surface in the context of comparing racial gerrymandering which is analyzed under the Equal Protection Clause.
And also recall that while the Court had previously taken on the issue of partisan gerrymandering, it dodged answering the ultimate question. Today, the Court's 5-4 decision makes that dodge permanent for all federal courts by holding that the questions is a nonjusticiable political question.
Writing for the Court, Chief Justice Roberts — joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh — held that challenges to partisan gerrymandering involve a political question because they lack “judicially discoverable and manageable standards for resolving them, citing Baker v. Carr (1962). The majority then rejects all the "tests" (quotation marks in original) for resolving the issue. (Recall that Chief Justice Roberts's expressed skepticism about developing standards in the oral arguments on an earlier partisan redistricting case, Gill v. Whitford, calling the political science of redistricting "gobbledygook"). It is not that there is no relief, the majority concludes. While partisan gerrymandering is "incompatible with democratic principles," as the Court had previously stated in Arizona State Legislature v. Arizona Independent Redistricting Comm’n (2015), and the majority opinion "does not condone excessive partisan gerrymandering," the remedy is in the state courts. Or Congress might pass a law to address the matter, citing as an example the Fairness and Independence in Redistricting Act Bill, although the Court does not express a view on this or other pending proposals.
In dissent, Justice Kagan — joined by Justices Ginsburg, Breyer, and Sotomayor — begins by stating "For the first time ever, this Court refuses to remedy a constitutional violation because it thinks it is beyond its judicial capabilities." Kagan's impassioned dissent, as long as the majority opinion, and parts of which she read from the bench (a rare practice for her), explains that democracy is at stake and if "left unchecked, gerrymanders like the ones here may irreparably damage our system of government. The dissenting opinion suggests that the majority has not paid sufficient attention to the constitutional harms at the core of these cases, and discusses the cases, concluding that no one thinks this is how democracy should work, and that in the past the Court has recognized the infringement to individual rights partisan gerrymandering inflicts. As for standards, the four dissenters argue that courts have developed a framework for analyzing claims of partisan gerrymandering, including the workable standard the three judge courts in Rucho and Lamone used. As for state courts, Kagan's opinion asks "what do those courts know that this Court cannot? If they can develop and apply neutral and manageable standards to identify unconstitutional gerrymanders, why couldn't we?"
Given that former-Justice Kennedy had a central role in arguing for a First Amendment right to challenge partisan gerrymandering, his retirement and replacement by Justice Kavanaugh made the majority for an opinion that Chief Justice Roberts had seemingly long wanted.
Friday, June 21, 2019
In its opinion in Flowers v. Mississippi, the Court reversed the decision of a divided Mississippi Supreme Court that there was not a violation of the Equal Protection Clause in the selection of jurors under Batson v. Kentucky (1986).
The Court's opinion by Justice Kavanaugh, and joined by Chief Justice Roberts, and Justices Ginsburg, Breyer, Alito, Sotomayor, and Kagan, stressed the "extraordinary facts" of Flowers and stated the decision sought to simply "enforce and reinforce Batson by applying it" here. Indeed, the jury selection at issue was in the sixth trial of Flowers all prosecuted by the same lead prosecutor. The Mississippi Supreme Court had reversed one conviction for prosecutorial misconduct, had reversed two other convictions for Batson violations, and two other trials had resulted in "hung juries." The Court concluded that four "critical facts, taken together" led to the conclusion:
- First, in the six trials combined, the State employed its peremptory challenges to strike 41 of the 42 black prospective jurors that it could have struck—a statistic that the State acknowledged at oral argument in this Court.
- Second, in the most recent trial, the sixth trial, the State exercised peremptory strikes against five of the six black prospective jurors.
- Third, at the sixth trial, in an apparent effort to find pretextual reasons to strike black prospective jurors, the State engaged in dramatically disparate questioning of black and white prospective jurors.
- Fourth, the State then struck at least one black prospective juror, Carolyn Wright, who was similarly situated to white prospective jurors who were not struck by the State.
The Court's opinion rehearsed the Equal Protection Clause doctrine that led to Batson, starting as far back as Strauder v. West Virginia (1880). The Court relied on its most recent Batson case, also a capital case, Foster v. Chatman (2016), and outlined the types of evidence relevant in a Batson challenge. It then discussed the evidence in detail as guided by the "critical facts" above. While the Court's opinion repeated that the case was "extraordinary" and that it was the combination of facts, Justice Alito wrote separately to stress the "unique combinations of circumstances present" as his reason for joining the Court's opinion.
Justice Thomas dissented in an opinion joined in large part by Justice Gorsuch. In Parts I-III of Thomas's dissenting opinion, joined by Gorsuch, Thomas starts by recounting the crime alleged and then argues that there was "no evidence whatsoever of purposeful race discrimination by the State in selecting the jury during the trial below." Further: "Each of the five challenged strikes was amply justified on race- neutral grounds timely offered by the State at the Batson hearing. None of the struck black jurors was remotely comparable to the seated white jurors. And nothing else about the State’s conduct at jury selection—whether trivial mistakes of fact or supposed disparate questioning— provides any evidence of purposeful discrimination based on race." As in the Court's opinion, the dissenting opinion then discusses the facts, drawing different conclusion. Yet these conclusions exist in the shade of Part IV of Thomas's dissenting opinion — the portion Gorusch did not join — criticizing Batson as disregarding limitations on standing and "giving a windfall to a convicted criminal" who "suffered no injury." Thomas concludes by stating that the "State is perfectly free to convict Curtis Flowers again" and that while the "Court's opinion might boost its self-esteem, it also needlessly prolongs the suffering of four victims’ families." As the only Black Justice on the Court, Thomas's rejection of Batson is sure to prompt discussion.
Monday, June 17, 2019
In its divided opinion in Virginia House of Delegates v. Bethune-Hill, the Court concluded that the Virginia House of Delegates, one of two chambers in the state legislature, did not have standing to appeal the judgment of the three judge district court that eleven districts in its 2011 redistricting plan were racially gerrymandered and violated the Equal Protection Clause.
Recall that in its previous appearance before the United States Supreme Court, Virginia's 2011 redistricting plan caused the Court to clarify the standard for deciding whether racial considerations in reapportionment violate the Equal Protection Clause. In Bethune-Hill v. Virginia State Board of Elections (2017), the Court affirmed the three-judge court's decision as to one of the districts as constitutionally considering race, but remanded the determination of the constitutional status of the other eleven districts. It was on this remand that the three-judge court found that these other eleven districts also violated the Equal Protection Clause.
Recall also that at oral argument, the questions of standing to appeal were intermixed with the factually-intense merits, so that details about the processes leading to the actual redistricting map and its impacts complexified the arguments.
The Court did not reach the merits, but decided the case on lack of standing to appeal. As Justice Ginsburg, writing for the majority, phrased it, after the 2018 three-judge court decision, Virginia decided it "would rather stop than fight on," and Virginia did not appeal. However, the Virginia House of Delegates did pursue an appeal. Ginsburg — joined by Justices Thomas, Sotomayor, Kagan, and Gorsuch — held that the House of Delegates did not have standing to appeal.
The majority held that the House of Delegates had no standing to represent the interests of the State of Virginia. A State has the authority to designate the entities to represent it and in the case of Virginia it has given this authority exclusively to the state Attorney General.
Further, the majority held that the Virginia House of Delegates did not have standing in its own right, as it did not have a distinct injury. "Just as individual members of Congress do not have standing to assert the institutional interests of the legislature, "a single House of a bicameral legislature lacks capacity to assert interests belonging to the legislature as a whole." The Court also rejected specific injury to the House of Delegates because redrawing district lines would harm it.
Justice Alito, writing the dissenting opinion joined by Chief Justice Roberts, and Justices Breyer and Kavanaugh, argued that the House of delegates did experience specific injury in fact, given that a representative represents a specific set of constituents with specific interests and this would be changed by redistricting.
The contentious redistricting in Virginia (as well as other states) is not brought any closer to resolution by the Court's decision, but it does mean that Virginia's choice to end this round of the litigation must be a unitary one.
image: map of Virginia circa 1612 via
Wednesday, April 17, 2019
The Seventh Circuit last week rebuffed a challenge to Illinois's law that prohibits residents of states that lack substantially similar licensing standards to even apply for an Illinois concealed-carry license. The ruling keeps Illinois's law on the books. (This is the second time the court ruled on the issue, the same way.)
The case, Culp v. Raoul, involved Second Amendment and related challenges to the reciprocal feature of Illinois's concealed-carry law. Here's how it works:
Illinois residents can apply for and receive a concealed-carry license upon a showing that the applicant isn't a public danger and, for the last five years, hasn't been a patient in a mental hospital, hasn't been convicted of certain crimes, and hasn't participated in a residential or court-ordered drug or alcohol treatment program. The state engages in an extensive background check of each applicant, and a daily check against the Illinois Criminal History Record Inquiry and the Department of Human Service's mental health system.
But for out-of-staters, the law only permits residents of states with substantially similar licensing requirements to apply for an Illinois concealed-carry license. The reason: Illinois authorities don't have access to criminal and mental health records of other states, so can't do the same kind of background check of their residents. At last count, there were just four such states; those states' residents can apply. Residents of all other states can't even apply for an Illinois concealed-carry license.
Residents of non-substantially-similar states sued, arguing that the law violated the Second Amendment, equal protection, and Article IV privileges and immunities. The court rejected those claims.
As to the Second Amendment, the court said that the law permissibly restricted out-of-staters' Second Amedment rights based on an "important and substantial" reason, enforcement of the criminal-history and mental-health standards, and that while it wasn't a perfect fit, it was close enough for intermediate scrutiny:
And the absence of historical support for a broad, unfettered right to carry a gun in public brings with it a legal consequence: the Second Amendment allows Illinois, in the name of important and substantial public-safety interests, to restrict the public carrying of firearms by those most likely to misuse them.
As to equal protection, the court noted that there's no discrimination against out-of-staters, because "Illinois's licensing standards are identical for all applicants--residents and non-residents the same." The court said that any discrimination between different states' non-residents was justified, because "Illinois has demonstrated that the substantial-similarity requirement relates directly to the State's important interest in promoting public safety by ensuring the ongoing eligibility of who carries a firearm in public. Intermediate scrutiny requires no more."
As to privileges and immunities, the court said concealed carry isn't a protected economic interest, and "we are equally unaware of a decision holding that a privilege of citizenship includes a right to engage in the public carry of a firearm, or, even more specifically, the right to carry a concealed firearm in another state." Moreover, the Clause "does not compel Illinois to afford nonresidents firearm privileges on terms more favorable than afforded to its own citizens."
The court noted that non-residents can still carry and use their firearms in the state. Just not concealed carry.
Judge Manion dissented, arguing that the law was way too rough a cut (both overinclusive and underinclusive) to meet the state's interests. "Illinois has utterly failed to show that banning the residents of an overwhelming majority of the country from even applying for a license is a 'close fit' to its goal."
Saturday, April 13, 2019
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:
Saturday, March 30, 2019
In his opinion in Peltier v. Charter Day School, Inc., Senior United States District Judge Malcolm J. Howard in the Eastern District of North Carolina held that the dress code of the Charter Day School corporation mandating that girl students wear skirts violated the Equal Protection Clause.
The bulk of Judge Howard's 36 page opinion concerned the threshold matter of state action given that Charter Day School (CDS) is a private nonprofit corporation. CDS described itself as a "traditional values" charter school and operated under North Carolina statutes allowing and regulating charter schools. Judge Howard determined that CDS had responsibility for the dress code (unlike another defendant), was viewed as a public school under state law, was performing an historical, exclusive, and traditional state function, and was subject to pervasive regulation including regarding suspensions for dress code violations.
On the Equal Protection Clause issue, Judge Howard noted that grooming and dress codes did not fit neatly into the doctrine of sex discrimination articulated in United States v. Virginia (VMI) (1996), noting that the CDS argued that intermediate scrutiny should not apply, but rather a "comparable burden" analysis. However, Judge Howard determined that even under a "comparative burden" analysis, the skirts requirement for girls did not "pass muster." Judge Howard stated that the skirts requirement was not consistent with community norms: women and girls have worn both pants and skirts in school and professional settings since the 1970s.
In considering the interests CDS asserted, including that the skirts requirement "helps the students act appropriately toward the opposite sex," Judge Howard found that there was no evidence to substantiate this, including a comparison to the days when there were exceptions to the only-skirts requirement. Moreover, the CDS board members could not explain when deposed how the skirts requirement furthered the goal. And while CDS stressed their students' good performance, there was no link between the performance and the skirts policy.
As Judge Howard implied, mandating girl students wear skirts has become anachronistic. However, as Judge Howard also noted, this does not mean that all gender-specific dress codes violate equal protection. For more about school dress codes and enforcing gender norms, see Dressing Constitutionally.
image: girls in pants in Minneapolis, 1929, via
Tuesday, March 26, 2019
The Court heard oral arguments in Rucho v. Common Cause (& League of Women Voters) regarding the constitutionality of partisan gerrymandering in North Carolina. The major question raised by the arguments was whether the courts have any role in protecting voters from partisan gerrymandering.
Recall that in an almost 200 page opinion, the three judge court resolved the issues of justiciability and standing in favor of the plaintiffs and held that the redistricting violated equal protection. The United States Supreme Court stayed that judgment.
Recall also that last term the Court essentially dodged the issue of the constitutionality of partisan gerrymandering, finding in Gill v. Whitford involving a challenge to Wisconsin's alleged partisan gerrymandering the Court found that the plaintiffs did not prove sufficient Article III standing to sustain the relief granted by the three judge court and in Benisek v. Lamone, involving a challenge to alleged political gerrymandering in Maryland, declining to to disturb the three judge court's decision not to grant a preliminary injunction.
The question of the standard by which to judge partisan gerrymandering preoccupied the arguments with the inevitable slippery slope of having the courts guarantee proportional representation being invoked. Additionally, the question of whether the federal courts should defer was raised repeatedly, with the solution being a state referendum, or even Congressional action, with Paul Clement representing the republican state legislators arguing that
And if you look at HR-1, the very first bill that the new Congress put on their agenda, it was an effort to essentially force states to have bipartisan commissions, now query whether that's constitutional, but it certainly shows that Congress is able to take action in this particular area.
Clement argued vigorously that the federal courts should have no power to act to prevent partisan gerrymandering, however extreme, with Justice Sotomayor stating that such an argument's "ship has sailed in Baker v. Carr" (1962), but Clement concluding with the point in his rebuttal referencing the authors of the Federalist Papers as accepting the political realities of partisan gerrymandering.
Monday, March 18, 2019
The United States Supreme Court heard oral argument in Virginia House of Delegates v. Bethune-Hill involving the ultimate issue of whether the redistricting plan of Virginia is racial gerrymandering in violation of the Equal Protection Clause of the Fourteenth Amendment. Like many states, the redistricting legal landscape in Virginia is complex; a good explainer from Loyola-Los Angeles Law School is here.
Recall that two years ago, in March 2017, the Court in Bethune-Hill v. Virginia State Board of Elections, the Court clarified the standard for deciding whether racial considerations in reapportionment violate the Equal Protection Clause. It affirmed the three-judge court's decision as to one of the districts as constitutionally considering race, but remanded the determination of the constitutional status of the other eleven districts.
On remand, the three-judge court divided, with the detailed and extensive opinion authored by Judge Barbara Milano Keenan for the majority ultimately concluding that the "Commonwealth of Virginia's House of Delegates Districts numbers 63, 69, 70, 71, 74, 77, 80, 89, 90, 92, and 95 as drawn under the 2011 Redistricting Plan, Va. Code Ann. § 24.2—3o4.03, violate the Equal Protection Clause. "
During that proceeding, the Virginia House of Delegates — one house of the Virginia legislature — was allowed to intervene, but a question on appeal to the United States Supreme Court is whether the House of Delegates, represented by Paul Clement, has standing to appeal, especially given that the Virginia Board of Elections, represented by Toby Heytens, the appellate the first time the case reached the United States Supreme Court, is now the appellee in agreement with Bethune-Hill, represented by Marc Elias. Morgan Ratner, an assistant Solicitor General, appeared on behalf of the United States and fully supported neither party, but did argue that the House of Delegates lacked standing, because "the House as an institution isn't harmed by changes to individual district lines, and while states can authorize legislatures to represent them in court, Virginia hasn't done so." While Justice Alito seemed to take the position that all the House of Delegates needed to establish was some injury on fact, such as the cost of publishing a new map showing the new districts, with Justice Sotomayor labeling Clement's statement that Virginia had "forfeited" the ability to object to the appeal as an "extreme" view. There was seemingly some sympathy to Toby Heytens' view that the Court was essentially being asked to referee a dispute between branches of the Virginia state government, with Justice Alito also asking whether or not the question of which entity may represent the state is not a question that should be certified to the Virginia Supreme Court. The precedential value and applicability of Minnesota State Senate v. Beens (1972), which Justice Ginsburg pointed out has not been cited in 30 years and was from an era in which standing was more "relaxed" and which others distinguished in terms of the impact on the legislative body.
On the merits, one issue was credibility of witnesses and deference to the court's factual determinations, especially given that the first three judge court had reached some opposite conclusions, including in some districts whether or not racial considerations predominated (and thus strict scrutiny would apply). This might seemingly be explained by the different standard articulated by the Court's previous decision in Bethune-Hill before remand, but this did not seem to be addressed. As typical, the precise facts in the map-making and the interplay between the Voting Rights Act and the Equal Protection Clause made the argument exceedingly detailed. For example, there are particular questions about the BVAP [Black Voting Age Population] in specific districts and what percentage is acceptable in each district as individualized or as comparative to other districts.
If the Court does not resolve the case on lack of standing, one can expect another highly specific opinion regarding racial gerrymandering in the continuing difficult saga of racial equality in voting.
[image: Virginia House of Delegates 2012 via]
Thursday, March 7, 2019
In its opinion in D.M. v. Minnesota State High School League, the Eighth Circuit held that an exclusion of male students from competitive dance teams violates equal protection. The Minnesota State High School League, a voluntary association of high schools that controls extracurricular activities and sports throughout Minnesota, prevailed in the district court by arguing that the gender-exclusive policy was justified because girls' "overall athletic opportunities have previously been limited," while boys' have not.
Writing for the unanimous panel, Judge Michael Melloy recited the well-known standard for evaluating the constitutionality of sex classifications from United States v. Virginia (VMI) (1996) requiring an exceedingly persuasive justification, and that classification serves an "at least" important government objective that is substantially related. While a compensatory justification intended to remedy past discrimination might survive in limited circumstances, Judge Melloy used the statistics provided by the state, reproducing them in table form, to demonstrate that there has not been a meaningful disparity in the rates of male and female participation in high school athletics. Judge Melloy concluded that the "broad" arguments the state advanced of important government interests such as promoting safety, increasing competition, redressing past discrimination, and providing more athletic opportunities for female athletes, failed to rise to the level of exceedingly persuasive justifications.
The court's opinion did not delve into this additional language from United States v. Virginia (VMI) (1996), that the justification "must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females." It might have provided further support for the court's recognition that a dancing-is-only-for-girls policy violates equal protection.
The court did remand with instructions to issue preliminary injunctions on behalf of the boys who wanted to join the competitive dance teams at their respective high schools.
[image: David Klöcker Ehrenstrahl, Children playing, 1651, via]
Monday, February 25, 2019
In his opinion in National Coalition for Men v. Selective Service System, Judge Gray Miller of the United States District Court for the Southern District of Texas found that the Military Selective Service Act (MSSA) provision, 50 USC §3802(a), requiring males (but not females) between the ages of 18 and 26 to register with the Selective Service System (SSS) violated equal protection, as applicable to the federal government through the Fifth Amendment's Due Process Clause.
Judge Miller first rejected the Government's Motion to Stay, concluding that the case was ripe, as it involved only a question of law, and that considerations of separation of powers and discretionary power of the court did not merit a stay. Judge Miller noted that Congress "has been debating the male-only registration requirement since at least 1980 and has recently considered and rejected a proposal to include women in the draft."
At the heart of this litigation is Rostker v. Goldberg (1981) in which the United States Supreme Court upheld the constitutionality of the male-only selective service registration based on its reasoning that because women were not statutorily eligible for combat, men and women were not "similarly situated" for purposes of the draft. The Government argued that Rostker should control. But, as Judge Miller stated, in the nearly four decades since Rostker "women's opportunities in the military have expanded dramatically" and in 2013, the Department of Defense officially lifted the ban on women in combat and in 2015 "lifted all gender-based restrictions on military service." Judge Miller also rejected the Government's argument based on Trump v. Hawai'i (2018), that there should be considerable deference, finding "the Trump decision is tangential, at best."
Thus, Judge Miller applied the intermediate scrutiny merited by sex classifications as articulated by the Court most recently in Sessions v. Morales-Santana (2017), and using the language of United States v. Virginia (VMI) (1996): "The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females."
Judge Miller rejected both of the Government's two asserted interests. First, the Government argued that women's eligibility to serve in combat is distinct from the women's conscription because conscription could lead to trade-offs for the military, meaning that requiring women to register for the draft could affect women's enlistment by increasing the perception that they would be required to serve in combat. Judge Miller found that this argument "smacks of 'archaic and overbroad generalizations' about women's preferences." Additionally, Judge Miller observed that this argument "appears to have been created for litigation." Second, the Government argued that Congress preserved the male-only registration requirement out of concern for the administrative burden of registering and drafting women for combat. But even if women are statistically less physically suited for combat,
the relevant question is not what proportion of women are physically eligible for combat—it may well be that only a small percentage of women meets the physical standards for combat positions. However, if a similarly small percentage of men is combat-eligible, then men and women are similarly situated for the purposes of the draft and the MSSA’s discrimination is unjustified. Defendants provide no evidence that Congress ever looked at arguments on this topic and then made a “studied choice” between alternatives based on that information.
Had Congress compared male and female rates of physical eligibility, for example, and concluded that it was not administratively wise to draft women, the court may have been bound to defer to Congress’s judgment. Instead, at most, it appears that Congress obliquely relied on assumptions and overly broad stereotypes about women and their ability to fulfill combat roles.“ Thus, Defendants’ second proffered justification appears to be an “accidental by—product of a traditional way of thinking about females,”’ rather than a robust, studied position.
Judge Miller issued a declaratory judgment that the male-only draft violates equal protection, but did not issue an injunction because the Plaintiffs did not request or brief it in their summary judgment motion and materials.
[image: Viet Nam War era draft card via]
Friday, February 15, 2019
In its opinion in Free the Nipple v. City of Fort Collins, the Tenth Circuit upheld the district judge's preliminary injunction against a public-nudity ordinance that imposes no restrictions on male "toplessness" but prohibits women from baring their breasts below the areola, Fort Collins, Colo., Mun. Code § 17-142 (2015). The district judge dismissed the First Amendment challenge, but later found that the plaintiffs had a likelihood of success on their Equal Protection Clause challenge and that a preliminary injunction from enforcing the statute was warranted.
Writing for the majority, Judge Gregory Phillips relied heavily on the United States Supreme Court's most recent decision on equal protection and gender, Sessions v. Morales-Santana (2017). The majority first concluded that as a gender-based classification, the ordinance merited intermediate scrutiny. While the city agreed the classification was gender-based, it had argued that only "invidious discrimination" on the basis of gender merited intermediate scrutiny. Judge Phillips noted that only when the classification is facially neutral but has disparate impact is the issue if "invidiousness" relevant.
The city also argued that women's and men's breasts had important physical differences. Judge Phillips considered several sources, adding that although the court was "wary of Wikipedia's user-generated content," it agreed with the district judge that there were inherent physical differences between men's and women's breasts, but "that doesn't resolve the constitutional question." Instead, the majority opinion stressed that the court should beware of such generalizations and their potential to "perpetuate inequality."
In its application of intermediate scrutiny, the majority analyzed the three interests asserted by the city:
- protecting children from public nudity,
- maintaining public order, and
- promoting traffic safety.
As to protecting children, the majority agreed with the district judge's finding quoting experts that the city's interest rested on negative stereotypes and citing Morales-Santana, the majority concluded that "laws grounded in stereotypes about the way women are serve no important governmental interest."
As to public order and traffic safety, the majority agreed that in "the abstract," these were both important governmental interests. However, the court stated that it suspected that the city was actually more concerned with the sex-object stereotype that the district judge had described, quoting experts. Moreover, it noted that the cases which the city relied upon held that the "nebulous concepts of public morality" actually justified the ban rather than interests in public order or traffic safety. The majority also concluded that the female-only toplessness ban was overbroad - and suggested that the city could "abate sidewalk confrontations by increasing the penalties for engaging in offensive conduct." In other words, the majority concluded that rather than criminalize women's behavior because it might incite some people, the city could criminalize people who acted on their incitement.
The majority candidly recognized that it had the "minority viewpoint" and other courts in divided opinions - including the Seventh Circuit - have rejected such challenges.
In dissent, Judge Harris Hartz argued that intermediate scrutiny should not apply at all, in part because there are real differences between men and women as to their breasts, and that intermediate scrutiny should not be diluted by applying it in this instance. Instead, Judge Hartz argued that only rational basis should apply, which the ordinance easily passed.
The constitutionality of sex-specific nudity bans that apply to women's breasts is long-standing: our earlier discussion is here, linking to a discussion from Dressing Constitutionally about the 1992 New York case which the majority cites. Yet with the split between the Tenth and Seventh Circuits now apparent, it may be ripe for United States Supreme Court resolution.
[image: "Photograph of Gerald R. Ford, Jr., and Two Unidentified Men in Bathing Suits" via]
Tuesday, February 5, 2019
United States District Judge Finds Exclusion of Puerto Rican Resident from Benefits Violates Equal Protection
In his opinion in United States v. Vaello-Madero, United States District Judge for the District of Puerto Rico, Gustavo Gelpí, entered summary judgment for the defendant in a suit by the United States seeking to recoup SSI disability payments. Mr. Vaello-Madero had been receiving SSI benefits while living in New York and the federal government continued to deposit the monthly payment into his checking account even after he relocated to Puerto Rico. The SSI statute defines persons eligible for SSI as living in the "United States," and by definition Puerto Rico from the United States, 42 U.S.C. §1382c(e).
Judge Gelpí rejected the government's contention that this exclusion was supported by the Territorial Clause, Article IV §3 cl. 2, which although it gives Congress a "wide latitude of powers" is not a "blank check" to "dictate when and where the Constitution applies to its citizens," citing Boumediene v. Bush (2008).
However, Judge Gelpí credited Vaello-Madero's argument that the exclusion of citizens of Puerto Rico from SSI benefits violated the equal protection component of the Due Process Clause of the Fifth Amendment. Judge Gelpí relied on United States v. Windsor (2013) in which the United States Supreme Court found DOMA unconstitutional, stating that as in Windsor the SSI statute was based on animus. Judge Gelpi gestured toward the possible applicability of a higher level of scrutiny - mentioning that US citizens residing in Puerto Rico are "very essence of a politically powerless group, with no Presidential nor Congressional vote, and with only a non-voting Resident Commissioner representing their interests in Congress" and noting that a "de facto classification based on Hispanic origin is constitutionally impermissible" - but held that, as in Windsor, rational basis was not satisfied.
Importantly, Judge Gelpí found that the government's interests advanced to support the exclusion of Puerto Rico in the statute, cost and nonpayment of federal income tax by Puerto Rican residents, were "belied by the fact that United States citizens in the Commonwealth of the Northern Mariana Islands receive SSI disability benefits."
Judge Gelpí's opinion ends with strong language:
federal legislation that creates a citizenship apartheid based on historical and social ethnicity within United States soil goes against this very concept [of Equal Protection and Due Process]. It is in the Court’s responsibility to protect these rights if the other branches do not. Allowing a United States citizen in Puerto Rico that is poor and disabled to be denied SSI disability payments creates an impermissible second rate citizenship akin to that premised on race and amounts to Congress switching off the Constitution. All United States citizens must trust that their fundamental constitutional rights will be safeguarded everywhere within the Nation, be in a State or Territory.
However, the opinion stops short of declaring 42 U.S.C. §1382c(e) facially unconstitutional and enjoining its enforcement. Judge Gelpí does issue summary judgment in favor of Vaello-Madero in an opinion sure to be used as precedent in other similar proceedings if the United States does not appeal.
Friday, January 4, 2019
The Court has ordered oral arguments set for March on the merits of two cases involving the recurring issue of the constitutionality of partisan gerrymandering, Rucho v. Common Cause and Lamone v. Benisek.
Both cases have extensive histories including previous appearances before the Supreme Court.
From North Carolina is Rucho v. Common Cause. In January 2018, a three-judge Court's extensive opinion found North Carolina's 2016 redistricting plan was unconstitutional partisan gerrymandering under the Equal Protection Clause, the First Amendment, and Article I §§ 2, 4. The United States Supreme Court stayed the judgment shortly thereafter, and then vacated the opinion in light of Gill v. Whitford (2018). In July 2018, the three judge court entered an even more extensive opinion - 300 pages - finding that standing regarding an equal protection challenge was satisfied under the Gill standard. The Court also reiterated its conclusions of the unconstitutionality of partisan gerrymandering, and enjoined the State from conducting any elections using the 2016 Plan in any election after the November 6, 2018, election.
From Maryland is Lamone v. Benisek. In June 2018, the United States Supreme Court issued a brief per curiam opinion declining to disturb the three judge court's decision not to grant to a preliminary injunction, at the same time the Court rendered its Gill v. Whitford opinion, and essentially reserved the issue of partisan gerrymandering for another day.
It seems that day has come — or will soon — but whether or not the Court will actually grapple with the constitutionality of the problem of partisan gerrymandering is as yet uncertain.
[image: Anti-gerrymandering event at Supreme Court, October 2017, via]
Wednesday, January 2, 2019
In a column at The Atlantic, "The Path to Give California 12 Senators, and Vermont Just One," subtitled "Maybe the two-senators-per-state rule isn’t as permanent as it seems," Political Science Professor Eric Orts agrees with many others that the Senate is essentially anti-democratic and that the time has come to change the 2 senators from every state rule.
Orts recognizes that the 2 Senators per state rule is doubly-demanded by the text of the Constitution: Not only does Article I §3 provide that "The Senate of the United States shall be composed of two Senators from each State," but Article V respecting the amendment process specifically provides "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."
Orts proposes that a way around these Constitutional commands — at least "arguably"— is through Congressional action. Orts contends that Congress could pass a law restructuring Senate representation like this:
Start with the total U.S. population, then divide by 100, since that’s the size of the current, more deliberative upper chamber. Next, allocate senators to each state according to their share of the total; 2/100 equals two senators, 3/100 equals three, etc. Update the apportionment every decade according to the official census.
Congressional power to do so, he seems to contend, would be grounded most obviously in the Reconstruction Amendments. He cites Equal Protection Clause cases such as Reynolds v. Sims (1964) and Bush v. Gore (2000), and argues that although
the Court trimmed a portion of the Voting Rights Act in Shelby County v. Holder in 2013, Chief Justice John Roberts, in his majority opinion, reaffirmed the authority of Congress to regulate in this field and endorsed a forward-looking orientation. “The Fifteenth Amendment commands that the right to vote shall not be denied or abridged on account of race or color, and it gives Congress the power to enforce that command," he wrote. “The Amendment is not designed to punish for the past; its purpose is to ensure a better future.”
Thus, inherent in Orts's argument is not simply that the Senate does not adequately represent the population of the United States but that this inadequacy is racialized. As he notes, under the current configuration it is states with small predominantly white populations that benefit: "in California, 38 percent of citizens are white. In Texas, that figure is 43 percent," while in the two smallest states, "Vermont is 94 percent white, and Wyoming is 86 percent white."
Indeed, Orts states that his proposal
corrects a heavy, unjustified bias favoring white citizens in the Senate. It doesn’t go too far to describe the current Senate apportionment as a vehicle entrenching white supremacy.
Would the Supreme Court uphold such a statute? Orts suggests that the Court could "stay out of the mix" by deferring to Congress or invoking the political question doctrine.
Would Congress ever pass such a statute? Orts admits that it is unlikely in large part because a more democratic Senate is a more Democratic party Senate. But, he ends, "who knows" what 2020 will bring.
[image: United States Capitol by C. E. Loven after photograph of drawing by Thomas U. Walter, via]