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)
Tuesday, November 12, 2019
The United States Supreme Court heard oral arguments in Department of Homeland Security v. Regents of the University of California (consolidated with Trump v. NAACP, and McAleenan v. Vidal) regarding the legality of the Trump Administration's rescission of the DACA program forestalling deportation proceedings against undocumented persons who have resided in the United States since childhood.
While the controversy implicates many constitutional issues, the argument before the Court centers on the Administrative Procedure Act (APA) regarding whether the rescission is subject to judicial review and if so, whether the rescission is supportable on the merits. In part these questions revolve around the rescission memo by acting DHS Secretary Elaine Duke (described by some as an "act of rebellion") and a subsequent June 2018 memo by DHS then-Secretary Kirstjen Nielsen (who famously resigned) regarding the rationales for the rescission.
One question is the extent to which these memos adequately considered the issue of reliance on the DACA policy. The Solicitor General contended that
to the extent there are any reliance interests, they're extremely limited. DACA was always meant to be a temporary stop-gap measure that could be rescinded at any time, which is why it was only granted in two-year increments. So I don't think anybody could have reasonably assumed that DACA was going to remain in effect in perpetuity.
Yet some Justices seemed to question the assertion that reliance interests were limited. For example, Justice Breyer stated,
But there are all kinds of reliance interests.
I counted briefs in this Court, as I'm sure you have, which state different kinds of reliance interests. There are 66 healthcare organizations. There are three labor unions.
There are 210 educational associations. There are six military organizations. There are three home builders, five states plus those involved, 108, I think, municipalities and cities, 129 religious organizations, and 145 businesses. . . .
And they all list reliance interests, or most of them list interest reliance -- interests applicable to them, which are not quite the same, they are not quite the same as those of the 700,000 who have never seen any other country.
And more pointedly, Justice Sotomayor implicated the President in the reliance interests:
I think my colleagues have rightly pointed there's a whole lot of reliance interests that weren't looked at, including the very President of -- current President telling DACA-eligible people that they were safe under him and that he would find a way to keep them here.
And so he hasn't and, instead, he's done this. And that, I think, has something to be considered before you rescind a policy.
Yet even if the Court were to find a violation of the APA (a conclusion which is by no means clear at all), the remedy — remand to the agency — is problematical.
Justice Gorsuch gave the Solicitor General an opportunity to respond to the remand remedy, but the SG did not take up this invitation, arguing that the memos were adequate. Later, Justice Breyer asked the Michael Mongan, the Solicitor General of California arguing for the state respondents, whether it was just playing “ping-pong” to send it back to the agency reach the same result but do it differently. Mongan argued that the result was not a foregone conclusion:
We don't truly know what the agency would do if confronted with a discretionary choice. If they knew that DACA were lawful, there's a new Secretary, and the administration has expressed broad sympathy for this population, and they very well might continue the policy or stop short of wholesale termination.
In many ways, the arguments and issues here mirror the citizenship question on the census controversy, Department of Commerce v. New York in which the Court did remand in its decision in June. Whether or not the Court will follow a similar path is difficult to predict.
Monday, October 7, 2019
Recall that the issue of which rights in the Bill of Rights are incorporated to the states has received recent attention: in McDonald v. City of Chicago (2010), a 5-4 Court held that the Second Amendment is incorporated as against the states through the Fourteenth Amendment (with four Justices finding this occurred through the Due Process Clause and Justice Thomas stating the proper vehicle was the Privileges or Immunities Clause). And just last Term, in Timbs v. Indiana, the United States Supreme Court unanimously concluded that the Excessive Fines Clause of the Eighth Amendment is applicable to the states through the Fourteenth Amendment.
But embedded in Timbs was a dispute about whether the "right" and the "substance of the right" must be similar, a question that the Court did not address. That dispute is at the heart of the incorporation doctrine surrounding the right to have a unanimous jury verdict. Justice Alito explained the problem in footnote 14 of McDonald, after stating in the text that the general rule is that rights "are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.”
There is one exception to this general rule. The Court has held that although the Sixth Amendment right to trial by jury requires a unanimous jury verdict in federal criminal trials, it does not require a unanimous jury verdict in state criminal trials. See Apodaca v. Oregon, 406 U. S. 404 (1972).
The precedential value of Apodaca, a case in which the Justices split 4-1-4, was at the center of the oral argument, although at times not as central as might be predicted. The reliance of Louisiana on Apodaca in stare decisis considerations was certainly discussed at length,including the issue of how many inmates would be effected by the Court's ruling. It was unclear how many persons were currently serving sentences under less than unanimous jury verdicts, although petitioner's counsel stated there were currently 36 cases on direct appeal.
However the Solicitor General of Louisiana largely advanced a different argument. She vigorously argued that the Sixth Amendment should not be read to require unanimous jury verdicts at all — whether or not in the context of incorporation. She stated that "nothing in the text, structure, or history of the Sixth Amendment requires unanimous jury verdicts." There seemed to be little support for this construction, although the Justices and opposing counsel did discuss the differences between unanimity and the "12" requirement which the Court has held is not constitutionally required.
There was little indication the Court was likely to revise its Sixth Amendment jurisprudence. And more indication that the Court would continue its trend of incorporating rights in the Bill of Rights as against the states, which would mean overruling Apodaca.
October 7, 2019 in Criminal Procedure, Due Process (Substantive), Federalism, Fourteenth Amendment, Interpretation, Oral Argument Analysis, Seventh Amendment, Sixth Amendment, Supreme Court (US) | Permalink | Comments (1)
Tuesday, April 23, 2019
The United States Supreme Court heard oral arguments in Department of Commerce v. New York on the issue of whether the decision by Secretary of Commerce Wilbur Ross to include a citizenship question on the main census questionnaire for 2020 is lawful. The constitutional issues in the case include the standing of the challengers and the "actual enumeration" requirements in the Constitution, Art. I, § 2, cl. 3, and Amend. XIV, § 2. The equal protection argument has seemingly receded into the background. Taking center stage are the nonconstitutional issues centering on the Administrative Procedure Act.
Recall that the case was originally before the Court on an order requiring Secretary Wilbur Ross to submit to a deposition. However, Recall that in January in New York v. United States Department of Commerce, United States District Judge Jesse Furman decided the case without the Secretary's evidence, finding that without it there was no proof of discriminatory intent sufficient for an equal protection challenge. Nevertheless, Judge Furman vacated and enjoined the implementation of the decision of Department of Commerce Secretary Wilbur Ross adding a citizenship question to the 2020 census questionnaire, holding that the Secretary's decision violated provisions of the APA, was arbitrary and capricious, and most unusually, pretextual.
Recall also that in March California v. Ross, United States District Judge Richard Seeborg has found the decision of Secretary of Commerce Wilbur Ross to add a citizenship question to the 2020 census unlawful under the Administration Procedure Act and unconstitutional under the Enumeration Clause.
Arguing for the United States Department of Commerce, Solicitor General Noel Francisco was quickly interrupted by Justice Sotomayor in his very first description of the facts — that "Secretary Ross reinstated a citizenship question that has been asked as part of the census in one form or another for nearly 200 years" — when she noted that the citizenship question was not part of the short survey that is at issue in the present case. In short, Solicitor General Francisco's argument was that the Secretary has wide discretion to put whatever questions he'd like on the census for whatever reason. While Justices Kavanaugh, Gorsuch, Alito, and Chief Justice Roberts seemed sympathetic to this wide discretion, especially in their subsequent questioning, Justices Sotomayor and Kagan characterized the Secretary's decision as a "solution in search of a problem."
Justice Kagan: . . . [as] Justice Sotomayor was talking about was that it did really seem like the Secretary was shopping for a need. Goes to the Justice Department. Justice Department says we don't need anything. Goes to DHS. DHS says they don't need anything. Goes back to the Justice Department. Makes it clear that he's going to put in a call to the Attorney General. Finally, the Justice Department comes back to him and says: Okay, we can give you what you want.
So you can't read this record without sensing that this -- this need is a contrived one. Nobody had -- there have been lots of assistant attorney general in the Civil Rights Division that have never made a plea for this kind of data.
The Solicitor General of New York (and former Attorney General of New York) Barbara Underwood argued that there was nothing before the Secretary to support the notion that this would assist in making determinations under the Voting Rights Act. Justice Kavanaugh interestingly asked Underwood about United Nations recommendations for citizenship questions, a topic which Douglas Letter came back to during his argument, representing the United States House of Representatives as amicus curiae in support of New York and the other respondents, stating that other nations may not have an "actual enumeration" Clause in their constitutions, and stressing the importance of accurate census data to the House of Representatives given its purpose in representation.
Dale Ho, arguing for New York Immigration Coalition, discussed the intersection between the Voting Rights Act (VRA) and the census, explaining how the Census Bureau alters and approximates information.
Assuming the Court does not reach the constitutional issues, the heart of the case under the APA will be how much deference the Court is willing to afford to the Secretary. This deference to the Secretary's discretion was interestingly implicated in the argument concerning the question of the Congressional role, with Douglas Letter pointing out that
The Secretary of Commerce has been called before Congress to explain what he did here, and Assistant Attorney General Gore . . . They have been declining to answer. They're not giving Congress the information it requests because they say there's litigation going on. And, I repeat, this is a matter of public record.
Given recent other matters of public record in which government officials are refusing to come before Congress, more may be at stake in this case than the APA, including separation of powers issues.
Monday, April 15, 2019
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.
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.
Wednesday, February 27, 2019
In oral argument in The American Legion v. American Humanist Association, consolidated with Maryland-National Park and Planning Commission v. American Humanist Association, the Court considered whether a 40 foot "Latin Cross" situated on a traffic island taking up one-third of an acre at the busy intersection of Maryland Route 450 and U.S. Route 1 in Bladensburg, Md., erected to honor the dead of World War I, violates the Establishment Clause.
Recall that a divided panel of the Fourth Circuit held that the cross violated the Establishment Clause, applying Lemon v. Kurtzman (1971) as a "useful guidepost" augmented by the plurality in Van Orden v. Perry (2005) regarding passive monuments.
Michael Carvin, arguing for the American Legion, proposed replacing the Lemon test with a very broad standard that made all sectarian symbols erected or maintained by governments presumptively constitutional, except in "the rare case in which they've been misused to proselytize." Carvin's argument would essentially vitiate the Establishment Clause and the Justices did not seem inclined to go that far. However, there was much discussion regarding whether the endorsement inquiry under Lemon — or any portion of Lemon — was appropriate or workable.
In considering whether the Latin cross was exclusionary of non-Christians, Neal Katyal, arguing for the Maryland state government party, stated that "factually, one of the main proponents for fundraisers of this particular cross was J. Moses Eldovich, who himself was a Jewish veteran." Later in the argument, Chief Justice Roberts returned to this point in a colloquy with Monica Miller (pictured right) arguing on behalf of the American Humanist Association:
CJ ROBERTS: Well, but that’s one of the main criticisms of the - - - of the Lemon test - - - that different people are going to process that [the relationship between Christianity and citizenship virtues] in different ways.
I mean, you heard from one of your friends on the other side that one of the major fund-raisers of this was a Jewish individual. So he was obviously observing it or anticipating it in a different way.
MILLER: Well, Your Honor, I think that we cannot take one person's example, again, someone who is probably one of maybe the only Jewish people in that county at a time when there was an active clan [Klan] burning crosses, burning Jewish buildings or Jewish, you know, businesses at a time when atheists couldn't run for office, Jews had to swear that they believed in an after-life in order to qualify, I mean —
Justice Kagan, attempted to ask a question, “why does it even matter?” But Justice Alito, overriding Kagan, pointed out that there were 12 African-American soldiers’ names on the cross, and then asked Ms. Miller:
JUSTICE ALITO: And do you think that the -- that the situation of -- of African Americans in Prince George's County at that time was worse -- was better than the situation for Jews?
Ms. Miller responded by stating that it was unclear how the names actually were chosen to be on the cross and that not all of them were from Prince George’s county.
While predictions from oral argument are always fraught, the majority of the Court seems poised to depart from Lemon and rather than articulate a new standard, stress the longstanding nature of the "monument" as in Van Orden.
Monday, February 25, 2019
The Court heard oral arguments in Manhattan Community Access Corporation v. Halleck, presenting the question of when (if ever) the actions of a private nonprofit corporation operating a public access television channel constitute sufficient state action warranting application of the First Amendment. As we discussed in our preview, the doctrinal question revolves around whether it is general constitutional state action doctrine or public forum doctrine under the First Amendment or whether there is a convergence of the two doctrines. The Second Circuit held that there were sufficient allegations of state action and First Amendment violations to prevent dismissal of the complaint.
Recall that the case involves a claim that Manhattan Community Access Corporation, known as Manhattan Neighborhood Network, MNN, suspended the plaintiffs, Halleck and Melendez, from airing programs over the MNN public access channels because of disapproval of the content in violation of the First Amendment, which requires state action.
In oral argument, Michael DeLeeuw, arguing for MNN, began by stating that MNN could not be deemed a state actor under any of the Court's state action tests. On the other hand, in the conclusion to his argument on behalf of the original plaintiffs, Paul Hughes stated that his "argument is limited to the context of public forums and the administration of public forums being state action" and "goes no further than that."
In between, the Justices probed factual questions regarding the composition of the MNN board, MNN's ability to curate content (or whether it must adhere to first-come-first-served), the practice with other public access channels, the agreement scheme between the city and MNN as well as regulations, and searched for analogies in railroads, "private prisons," and schools opening their facilities. Early in the argument, Chief Justice Roberts asked whether facts about MNN's ability to curate content was disputed, with counsel for MNN responding that they were, and Chief Justice Roberts responding that the case was before the Court on the pleadings. At several points, Justice Breyer focused on specific facts, noting that certain facts tended toward or against there being state action or the creation of a public forum.
On the whole, the argument seemed to favor a very particularized analysis. So while the Court could certainly articulate a broad new standard for state action, it seems more likely that the Court's decision will be a narrow one focused on the rather unique circumstances of this public access arrangement.
Wednesday, October 3, 2018
The Supreme Court heard oral arguments yesterday in Gundy v. United States, the case testing whether the federal Sex Offender Registration and Notification Act delegated too much authority to the Attorney General to determine the Act's application to pre-Act offenders. Our preview is here.
If the arguments any any predictor, the Non-Delegation Doctrine challenge to the Act faces an uphill battle. Indeed, there was only one Justice, Justice Gorsuch, who seriously went to bat against the Act. And his problems with the Act sounded more in due process (void-for-vagueness), and not in the separation of powers or non-delegation.
The question for the Court was whether SORNA's delegation to the AG to determine the applicability of the Act to pre-Act offenders provided an "intelligible principle" to guide the AG's decision. If so, there's no delegation problem; if not, there's a violation of the Non-Delegation Doctrine. (That Doctrine seeks to preserve the separation of powers by preventing Congress from delegating too much law-making authority to the Executive Branch.)
The Court's approach will likely turn on two considerations. First, can the Court look to the Act in its entirety in determining whether Congress legislated with an "intelligible principle," or is it restricted to the particular provision that delegates authority to the AG to determine its application to pre-Act offenders? (Related: Should the Court seek to interpret the Act to avoid a delegation problem?) Court precedent and most of the Justice who spoke seemed to favor the former approach; only Justice Gorsuch spoke out forcefully in favor of the latter approach (and, again, his objections really sounded in due process, not the separation of powers). Next, does the Non-Delegation Doctrine apply differently to legislation that provides more serious enforcement than to legislation that provides less serious enforcement? In particular, is the Doctrine more rigorous when the delegation goes to the AG (as chief federal prosecutor of federal crimes, as opposed to an ordinary regulatory agency), because a vague delegation would put both the power to interpret the law and the power to prosecute the criminal law in the hands of one executive officer? Again, precedent and questions seemed to say no, and, again, only Justice Gorsuch seriously pushed back.
As far as the separation of powers goes, it's worth noting that if the Court rules that SORNA violates the Non-Delegation Doctrine, this is a net gain for the judicial branch: it means that the courts can play a more aggressive role than they have played in determining the authority of executive agencies in interpreting and executing the law. To that extent, we might consider this case alongside other challenges to the administrative state (challenges to the Chevron doctrine, challenges to Morrison v. Olson and independent agencies, etc.).
It's certainly possible that the Court might do some refining around the edges of the Non-Delegation Doctrine. (Maybe that's why the Court granted cert. Otherwise, the grant seems a mystery.) But it seems quite unlikely that the Court will hold the SORNA's delegation to the AG unconstitutional.
Wednesday, April 25, 2018
The Court heard oral arguments in Trump v. Hawai'i, releasing same-day audio in the case in recognition of its importance. Recall that the Court granted certiorari to the Ninth Circuit's opinion in Hawai'i v. Trump regarding Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”of September 24, 2017, also known as E.O 3, or Travel Ban 3.0, or Muslim Ban 3.0. The Ninth Circuit, affirming a district judge, found Travel Ban 3.0 unlawful under the Immigration and Nationality Act. The Court also took certiorari on the Establishment Clause issue. There were also constitutional issues involves standing.
Arguing for the United States and President Trump, Solicitor General Noel Francisco opened and repeatedly stressed that E.O. 3 was the result of a "worldwide multi-agency review." Yet the person of President Trump was a definite, if at times implicit, presence in the argument. For example, during the Solicitor General's argument Justice Kagan posed a hypothetical:
So this is a hypothetical that you've heard a variant of before that the government has, at any rate, but I want to just give you.
So let's say in some future time a -a President gets elected who is a vehement anti-Semite and says all kinds of denigrating comments about Jews and provokes a lot of resentment and hatred over the course of a campaign and in his presidency and, in course of that, asks his staff or his cabinet members to issue a proc -- to issue recommendations so that he can issue a proclamation of this kind, and they dot all the i's and they cross all the t's.
And what emerges -- and, again, in the context of this virulent anti-Semitism – what emerges is a proclamation that says no one shall enter from Israel.
**** “this is a out-of-the-box kind of President in my hypothetical. And –
**** And -- and who knows what his heart of hearts is. I mean, I take that point. But the question is not really what his heart of hearts is. The question is what are reasonable observers to think -
This discussion takes place in the context of whether the deferential standard of Kleindienst v. Mandel (1972) should apply, but also applies to the Establishment Clause problem of whether the EO has a secular purpose under McCreary County v. ACLU of Kentucky (2005).
Arguing for Hawai'i, Neal Katyal stated that Hawai'i did not rely on any campaign statements for intent, but only presidential statements, citing the President's "tweeting of these three virulent anti-Muslim videos" after the present EO was issued, and the presidential spokesperson being asked to explain these retweets saying, according to Katyal's argument, "The President has spoken about exactly this in the proclamation."
Chief Justice Roberts asked whether the taint of any presidential statements "applies forever." Katyal stressed that the President had not disavowed the statements or moved away from them.
Justice Breyer, among others, seemed concerned that the exceptions in the policy remained opaque, but Alito flatly stated that "it does not look at all like a Muslim ban."
Predicting outcomes from oral arguments is always a dubious enterprise, but this is undoubtedly a close case. Additionally, the Chief Justice's appearance at the President's State Dinner the evening before oral arguments has caused some to question his impartiality, or, at least the appearance of impartiality.
Tuesday, April 24, 2018
The United States Supreme Court heard oral arguments in Abbott v. Perez, regarding the constitutionality under the Equal Protection Clause and the validity under the Voting Rights Act of the redistricting plan enacted by the Texas Legislature in 2013. Recall that in an extensive opinion in August 2017, the three judge court made detailed findings, one of which was that the Texas legislature engaged on intentional racial discrimination violating the Fourteenth Amendment.
Much of the argument centered on the acts of the Texas legislature in 2013 adopting maps which had previously been found invalid because of racial discrimination. Arguing for Texas, Scott Keller, the Texas Solicitor General, argued that the Texas legislature was entitled to a presumption of good faith and that the "taint" did not carry forward, and Edwin Kneedler, from the United States Solicitor General's Office, likewise stressed that the "taint" should not carry forward. Arguing for various challengers to the redistricting, Max Hicks and Allison Riggs, both stressed the standard of Village of Arlington Heights v. Metro. Hous. Dev. Corp. (1997), contending that the taint does not end, and stressing the extensive findings by the three judge court.
The question of how long a discriminatory intent taint persists sometimes seemed as if it was a preview of the next oral argument, that in Hawai'i v. Trump.
Yet the oral arguments in Abbott v. Perez were also preoccupied with the "jurisdictional" question; Chief Justice Roberts at several points directed the parties to move to the merits. This jurisdictional question involves the status of the three judge court order and whether it is actually a reviewable order. Recall that the order was not a preliminary injunction, but instead the court directed the Texas Attorney General to provide a "written advisory within three business days stating whether the Legislature intends to take up redistricting in an effort to cure these violations and, if so, when the matter will be considered." Justice Breyer suggested that the operable "piece of paper" in the case was not a judgment or preliminary injunction, but only a direction to come to court.
While jurisdictional issues are always important to the Court, when the jurisdiction involves appeals as of right from three judge court decisions, the stakes are higher in terms of workload. As Justice Sotomayor asked, what distinguishes this case from the "millions of others - - - not millions, I'm exaggerating greatly - - - the hundreds of these . . . ."
April 24, 2018 in Courts and Judging, Elections and Voting, Equal Protection, Fourteenth Amendment, Oral Argument Analysis, Race, Recent Cases, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0)
Wednesday, March 28, 2018
In oral arguments in Benisek v. Lamone, the United States Supreme Court again confronted the the constitutionality of gerrymandering on the basis of political party. Recall that the Court heard arguments earlier in this Term in Gill v. Whitford involving the state of Wisconsin and centering on the Equal Protection Clause challenge. In Benisek, involving Maryland, recall that a divided three judge court denied the motion for preliminary injunction, but with Fourth Circuit Judge Paul Niemeyer arguing that the redistricting of Maryland's Sixth District diluted the votes of Republicans in violation of the First Amendment.
The Benisek argument before the Supreme Court did center the First Amendment, but equal protection doctrine did surface in the context of comparing racial gerrymandering which is analyzed under the Equal Protection Clause. Arguing for Maryland, Steve Sullivan sought to distinguish the two doctrines, with Justice Kagan responding:
JUSTICE KAGAN: But we would be looking at the same things. We would be looking at the same kind of direct evidence, the same kind of statements. We would be looking at the same circumstantial evidence that has to do with where the lines were drawn and how they were drawn. So it's -- it's all the same kind of evidence, isn't it?
Sullivan sought to distinguish the two doctrines and stated that while there may be similar types of evidence, the Court had not applied "the First Amendment retaliation rubric to that analysis," as the challengers suggested. However, Chief Justice Roberts offered another comparison:
CHIEF JUSTICE ROBERTS: Well, one difference between -- one difference between the race and partisanship is that we've always recognized that a certain degree of partisanship is acceptable. We've never recognized that a certain degree of racial discrimination is acceptable.
The earliest moments of the oral argument offered a possible procedural escape hatch. The three judge court had denied the preliminary injunction and the possibility that any remedy could occur before the 2018 election seemed unlikely. Moreover, the Justices questioned Michael Kimberly, attorney for the plaintiffs-challengers, regarding the lateness of the challenge, with Chief Justice Roberts asking about the elections that have been held in 2012, 2014, and 2016 before the challenge - - - relevant to the preliminary injunction factor of irreparable harm.
Justice Breyer offered a strategy for determining whether there are manageable standards and if so, what the standard should be. (Recall that Justice Breyer outlined a several-step possible standard in the oral argument in Gill v. Whitford). Justice Breyer noted that there are three cases - - - Wisconsin (Gill v. Whitford); Maryland (Benisek); and "the one we are holding, I think, is North Carolina" - - - with different variations. He began by asking the attorney for the challengers what he thought of reargument for the three cases:
JUSTICE BREYER: * * * * What would you think of taking the three cases and setting them for reargument on the question of standard and there we'd have all three variations in front of us and we would enable people who have an interest in this subject generally to file briefs, and we'd see them all together and they could attack each other's standards or they could support each other's standards or they could attack any standard? But there we'd have right in front of us the possibilities as -- as -- as thought through by lawyers and others who have an interest in this subject.
I raise it because I want to think if there's some harm in doing that that I haven't thought of. Is there some reason - would it be harmful to somebody? Because I do see an advantage. You could have a blackboard and have everyone's theory on it, and then you'd have the pros and cons and then you'd be able to look at them all and then you'd be able see perhaps different ones for different variations and, you know, that's -- maybe there are different parts of gerrymandering that rises in different circumstances, dah-dah-dah. You see the point.
Later, in a colloquy with the attorney for Maryland, Justice Breyer again surfaced his proposal:
That's why I was thinking you've got to get all these standards lined up together, you know, and you have to have people criticizing each one back and forth and see if any of them really will work or some work in some cases and some work in other cases and it depends on the type you have.I -- I mean, that isn't squarely addressed by the lawyers because they're focused on their one case, et cetera.
Will there be a reargument? It's difficult to tell. But if there is, one might expect more than one brief that outlines the possible standards, with their advantages, disadvantages, and possible results in different cases, suitable for a "blackboard."
[image: Winslow Homer, Blackboard, 1877, via]
March 28, 2018 in Association, Courts and Judging, Elections and Voting, Equal Protection, First Amendment, Fourteenth Amendment, Oral Argument Analysis, Recent Cases, Supreme Court (US) | Permalink | Comments (0)
Tuesday, March 20, 2018
The United States Supreme Court heard oral arguments in National Institute of Family and Life Advocates (NIFLA) v. Becerra in which the Ninth Circuit upheld the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act).
The California law requires that licensed pregnancy-related clinics, also known as crisis pregnancy centers, or CPCs, must disseminate a notice stating the existence of publicly- funded family-planning services, including contraception and abortion, and requires that unlicensed clinics disseminate a notice stating that they are not licensed by the State of California. The California legislature had found that the approximately 200 CPCs in California employ “intentionally deceptive advertising and counseling practices [that] often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care.”
The California law is not unique, but as we previously discussed when certiorari was granted, other courts have consider similar provisions with mixed conclusions.
The arguments raised several questions but one that recurred was the relevance of Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) in which the Court upheld the informed consent provisions of a state law mandating "providing information about medical assistance for childbirth, information about child support from the father, and a list of agencies which provide adoption and other services as alternatives to abortion." Justice Breyer's invocation of the maxim "sauce for the goose, sauce for the gander" pointed to the question of why California could not also mandate that CPC's provide notice. Arguing for the challengers, Michael Farris argued that the distinction was that the CPC's were not medical, although there was much discussion of this including the definition of medical procedures such as sonograms and pregnancy tests.
Appearing for neither party, Deputy Solicitor General Jeffrey Wall nevertheless strongly advocated against the California law. Near the end of Wall's argument, Justice Alito raised the subject of professional speech proposed by the United States brief, stating that it "troubles me" and seemed inconsistent with United States v. Stevens (2010) regarding not recognizing new categories of unprotected speech. (Recall that Alito was the lone dissent in the Court's conclusion that criminalizing "crush porn" violated the First Amendment). Alito also referenced the Fourth Circuit's "fortune teller" case, in which the court upheld special regulations aimed at fortune tellers. For Wall, laws that mandate disclosures by historically regulated professions such as doctors and lawyers should be subject only to minimal scrutiny.
The main issue raised regarding California's position was whether or not the statute was targeted at pro-life clinics, especially given the "gerrymandered" nature of the statute's exceptions. The Justices also directed questions to Deputy Solicitor of California Joshua Klein regarding the advertising requirements and disclaimers: must a facility state it is not licensed even if it is not advertising services, but simply has a billboard "Pro Life"?
Will it be sauce for the goose as well as for the gander?
The intersection of First Amendment principles and abortion jurisprudence makes the outcome even more difficult to predict than notoriously difficult First Amendment cases.
Wednesday, February 28, 2018
The Court heard oral argument in Minnesota Voters Alliance v. Mansky, a First Amendment challenge to Minn. Stat. §211B.11, entitled "Soliciting near polling places," and includes among its petty misdemeanor violations a prohibition of political attire: "A political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day." The argument tracked many of the issues in our preview here.
Important to the argument was the relevance of Burson v. Freeman (1992), in which the Court upheld a Tennessee statute which prohibited the solicitation of votes and the display or distribution of campaign materials within 100 feet of the entrance to a polling place. Early in the argument, Justice Sotomayor asked J. David Breemer, counsel for the petitioners, whether he was asking the Court to overrule Burson. Breemer distinguished Burson as "active campaigning" speech while the Minnesota statute governing attire and buttons was directed at "passive speech," but this did not seem satisfactory to the Justices.
The slippery slope inherent in overbreadth challenges was traversed multiple times. How could the lines be drawn? Several Justices at different points pressed counsel for Minnesota Voters Alliance on whether the statute would be constitutional if narrowed to "electoral speech" (vote for candidate X), but while counsel eventually agreed this might be constitutional, Justice Sotomayor then asked about ballot measure issues. During Daniel Rogan's argument on behalf of the State of Minnesota, Justice Alito pressed with any number of examples after stating that political connotations are in the "eye of the beholder": rainbow flags, Parkland Strong, the text of the Second Amendment, the text of the First Amendment, and "I miss Bill." And what about the very notion of entitlement to vote itself? In Breemer's rebuttal, Justice Sotomayor returned to some of the facts that had prompted the First Amendment challenge:
Let's not forget who these people were and what they were wearing, "Please ID me," which for some people was a highly charged political message, which was found, on remand, was intended to intimidate people to leave the polling booth . . . .
For Alito, the focus was not on voters who may be intimidated but on the humiliation of a voter who might be forced to cover up a political shirt with "a bathrobe."
As for the government interests supporting the statute, the question of dignity and decorum were paramount, inviting the comparison to the courtroom, which Justice Kagan raised. Although Breemer stated there was no constitutional right to vote free from being bothered, C.J. Roberts asked why a state could not make a determination that there should be such a policy.
The on-the-ground enforcement of the statute, with a potential for viewpoint discrimination, was a focus of Justice Alito's questions, but other Justices were also interested in what actually happened at the polling place. For Alito,but Rogan stressed the process and repeatedly noted that for one hundred years the statute has not been a problem and that Minnesotans know not to wear political slogans to go vote. If there are issues, Rogan stated, they are rather expeditiously solved in a bipartisan process at the polling place.
While one can assume their positions from their questions in oral argument from a few Justices - - - Alito seemed rather obvious - - - it is always risky to venture a guess about the outcome, especially when there is a conflict of constitutional interests. Indeed, this case may be most like Williams-Yulee v. The Florida Bar in which a closely-divided Court in 2015 upheld an ethics rule prohibiting judicial candidates from solicitation; Chief Justice Roberts wrote the majority opinion.
Monday, February 26, 2018
There were no surprises today at oral arguments in Janus v. AFSCME, the case testing whether a state law that permits a public-sector collective-bargaining agreement to require non-union-members to pay a "fair share" fee violates the First Amendment. The justices seemed to divide along predictable (and conventional political) lines, given their votes in other recent cases. The only one we haven't heard from on this issue--and didn't hear anything today--is Justice Gorsuch. If previous positions hold, as expected, the case will turn on his vote.
The case asks whether a state can require non-union members to pay the union for its collective-bargaining work (but not its outside political work) in a public-sector agency shop. The Court held in Abood v. Detroit Board of Education (1977) that it could. In particular, the Court said that the state's interests in avoiding free-riders in the agency shop and promoting and protecting labor peace justified any intrusion into First Amendment rights.
Janus tests whether the Court should overrule Abood and strike mandatory public-sector fair-share fees.
Recall that the issue has come to the Court, directly or indirectly, three times in recent years. In the first two cases, Knox v. SEIU and Harris v. Quinn, the Court sent strong signals that a majority thought fair share fees violated the First Amendment. Then, in 2016, the Court deadlocked 4-4 on the issue in Friedrichs v. California Teachers Association. Justice Scalia participated in oral arguments in Friedrichs--and indicated his position against fair share--but passed away before the Court issued its ruling.
Arguments today largely rehearsed the points made in Friedrichs and that have by now become familiar: on the one side, mandatory fair share represents compelled speech on public issues that a non-union-member (like Janus) may disagree with; on the other side, the interests in Abood justify any mild intrusion into First Amendment rights represented by a fee (and not actual compelled speech). Lurking just below the surface is the political wrangling over public-sector unions and the reality that a ruling against fair share will strike a serious blow to them.
If prior positions hold among the eight justices who participated in Friedrichs, as expected, the case will then turn on Justice Gorsuch. He revealed no cards today, though, staying quiet throughout the arguments.
On February 28, 2018, the United States Supreme Court will hear arguments in Minnesota Voters Alliance v. Mansky, a First Amendment challenge to Minn. Stat. §211B.11, entitled "Soliciting near polling places," and includes among its petty misdemeanor violations a prohibition of political attire: "A political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day."
The Eighth Circuit, in a brief opinion affirming the district judge's grant of summary judgment to the government defendants, upheld the statute against an as-applied First Amendment challenge.
The plaintiffs sought to wear Tea Party apparel and part of their argument was that the Tea Party was not a political party and that they had been subject to selective enforcement. The Eighth Circuit rather summarily rejected both of these arguments finding that they were not supported by the record. In a previous opinion, the Eighth Circuit had allowed plaintiffs to develop this record by reversing the district judge's initial dismissal of the complaint on the First Amendment as-applied claim, while affirming the dismissal of the First Amendment facial challenge and an equal protection challenge. One judge dissented on the First Amendment facial challenge claim. And it this facial challenge that is before the United States Supreme Court, the question presented by the petition for certiorari is: "Is Minnesota Statute Section 211B.11(1), which broadly bans all political apparel at the polling place, facially overbroad under the First Amendment?"
Undoubtedly the political attire at issue is expressive speech that the government could not ordinarily ban under the First Amendment. Thus, the status of the polling place on election day as an exception will be the centerpiece of the arguments. In Burson v. Freeman (1992), the Court upheld a Tennessee statute which prohibited the solicitation of votes and the display or distribution of campaign materials within 100 feet of the entrance to a polling place. The plurality opinion by Justice Blackmun applied strict scrutiny, finding that 100 feet parameter involved a public forum and that the speech was being regulated on the basis of its content. However, confronted with a "particularly difficult reconciliation" of rights: "the accommodation of the right to engage in political discourse with the right to vote - a right at the heart of our democracy," the plurality found that this was a "rare case" in which a statute survived strict scrutiny.
Here, the State, as recognized administrator of elections, has asserted that the exercise of free speech rights conflicts with another fundamental right, the right to cast a ballot in an election free from the taint of intimidation and fraud. A long history, a substantial consensus, and simple common sense show that some restricted zone around polling places is necessary to protect that fundamental right. Given the conflict between these two rights, we hold that requiring solicitors to stand 100 feet from the entrances to polling places does not constitute an unconstitutional compromise.
Concurring, Justice Scalia disagreed that the case involved a public forum: "Because restrictions on speech around polling places on election day are as venerable a part of the American tradition as the secret ballot," "exacting scrutiny" was inappropriate. Instead, Scalia contended that although the statute was content based, it was "constitutional because it is a reasonable, viewpoint-neutral regulation of a nonpublic forum."
In addition to this precedent, it will be difficult to ignore that the oral argument will be occurring at the United States Supreme Court with its specific instruction to visitors to the argument that "identification tags (other than military), display buttons and inappropriate clothing may not be worn." Additionally, two federal statutes, 40 U.S.C. §6135 and 40 U.S.C. 13k make it unlawful "to display therein any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement" in the Supreme Court building or grounds. The Court determined that the prohibition of political speech as applied to the surrounding sidewalk of the Supreme Court was unconstitutional in United States v. Grace (1983) (Mary Grace was displaying a placard with the First Amendment), but stopped far short of declaring the statute unconstitutional. Dissenting in part, Justice Marshall contended that the entire statute should be unconstitutional, noting that it “would be ironic indeed if an exception to the Constitution were to be recognized for the very institution that has the chief responsibility for protecting constitutional rights.”
But after some D.C. courts had upheld the statutes, a D.C. district judge declared U.S.C. §6135 unconstitutional in Hodge v. Talkin (2013), causing the Supreme Court to amend its regulations regarding the term "demonstration" to exclude "casual use by visitors or tourists that is not reasonably likely to attract a crowd or onlookers.," but to nevertheless continue to prohibit "all other like forms of conduct that involve the communication or expression of views or grievances." Nevertheless, a person arrested for wearing a jacket with the words "Occupy Everywhere" as a seemingly casual visitor to the Supreme Court building achieved little success in his attempt to vindicate himself. In other courtrooms, judges have banned spectators from wearing expressions related to the proceedings, for example in the trial of Bei Bei Shuai for ingesting poison to kill herself that harmed her fetus, and in the high-profile criminal trial of Cecily McMillan for assaulting a police officer who she alleged grabbed her breast. The United States Supreme Court obliquely confronted the issue of courtroom spectator in 2006 in Carey v. Musladin, which was decided on other procedural grounds. (For more discussion of spectator attire in courtrooms see Dressing Constitutionally).
The courtroom analogy will most likely surface at some point during the oral argument. In its brief, the Minnesota Voters Alliance relies on Justice Marshall's partial dissenting opinion in Grace, while Manksy's Respondent's brief ventures a specific analogy:
Because voting rights are of such bedrock importance, a polling place—like a courtroom—can reasonably be restricted to reflect the solemn and weighty nature of the function that occurs there.
But it will be interesting to hear how specific comparisons the United States Supreme Court's own practices in banning political t-shirts and similar attire will be. As for the attire of those attending the oral argument, if past practices hold, none of them will be wearing a Tea Party t-shirt or even a button expressing a political viewpoint.
Wednesday, January 17, 2018
The United States Supreme Court heard oral arguments in Dalmazzi v. United States in which the complicated issue is whether 10 U.S.C. § 973(b)(2)(A)(ii), the so-called dual-officeholding ban, prohibits military officers from holding or exercising the functions of a “civil office” requiring a presidential nomination and Senate confirmation “except as otherwise authorized by law.” The case is made more complicated by the threshold issue of whether the Court has power to review the case. Amy Howe has a good discussion of the oral argument on SCOTUSblog.
A notable highlight of the argument was when Justice Kennedy asked ConLawProf Stephen Vladeck, arguing for the petitioners, whether Chief Justice John Marshall was correct in Marbury v. Madison.
JUSTICE KENNEDY: Particularly as to the interpretation with such exceptions as Congress may make.
VLADECK: So, I will confess, Justice Kennedy, that I may perhaps belong in the school of scholars who thinks that Chief Justice Marshall read both the statute and the Constitution to reach the constitutional questions he wanted to reach. I'm not sure that he nevertheless didn't end up with the right -- with the wrong answer. And, again, I think, for purposes of the question presented in this case on this Court's jurisdiction, the more relevant case is not Marbury but [Ex Parte] Bollman .
And if I may, Mr. Chief Justice, I'd like to reserve my time.
ConLawProfs and ConLaw students engaging with Marbury v. Madison could not ask for a more current example of the continuing relevance of the case. And for enhanced learning, try the CALI Lesson on the case or these ideas.
January 17, 2018 in Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, Oral Argument Analysis, Profiles in Con Law Teaching, Recent Cases, Supreme Court (US), Teaching Tips | Permalink | Comments (0)
Tuesday, December 5, 2017
The Court heard oral argument in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission with extensive arguments from the attorney for the cakeshop (Kristen Waggoner), the Solicitor General, the Colorado Solicitor General, and the attorney for the would-be customers (David Cole).
As predictable, the oral argument was filled with the expansiveness or limits of any doctrine that would permit the cakemaker to refuse to bake a cake for the same-sex wedding reception. Early on, Justices Ginsburg and Kagan asked Waggoner about florists and invitation designers, who Waggoner stated would be engaging in speech, but said "absolutely not" for the hair stylist. Drawing the line - - - what about the chef? the sandwich artist? - - - preoccupied this initial portion of the argument. However, another limitation that permeated the case was whether the cakemaker's refusal could apply to racial or other identities as well as sexual orientation, or perhaps, whether it was based on identity at all. For Kennedy, the issue could be that "there's basically an ability to boycott gay marriage."
Also for Kennedy, however, the question is whether Colorado had been "tolerant" or "respectful" of the cakemaker's religious beliefs. This invocation of the Free Exercise Clause was given heft by a statement by one of the Commissioners of the Colorado Civil Rights Commission as quoted by Kennedy that "freedom of religion used to justify discrimination is a despicable piece of rhetoric." Kennedy asks the Colorado Solicitor General to "disavow or disapprove" of that statement. Kennedy characterizes the statement as expressing a hostility to religion and later lectures the Colorado attorney:
Counselor, tolerance is essential in a free society. And tolerance is most meaningful when it's mutual.
It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips' religious beliefs.
In Waggoner's rebuttal, Justice Sotomayor proffered a different view:
Counsel, the problem is that America's reaction to mixed marriages and to race didn't change on its own. It changed because we had public accommodation laws that forced people to do things that many claimed were against their expressive rights and against their religious rights.
It's not denigrating someone by saying, as I mentioned earlier, to say: If you choose to participate in our community in a public way, your choice, you can choose to sell cakes or not. You can choose to sell cupcakes or not, whatever it is you choose to sell, you have to sell it to everyone who knocks on your door, if you open your door to everyone.
While it's always perilous to predict the outcome of a decision based n oral argument, if Justice Kennedy is the deciding vote, his attention to the religious aspects of the challenge could make the free speech argument less consequential.
Tuesday, October 3, 2017
In oral arguments today in Gill v. Whitford, the United States Supreme Court confronted the constitutionality of gerrymandering on the basis of political party.
Recall that in an extensive opinion the three-judge court concluded that Wisconsin's "gerrymandering" of districts was unconstitutional, rejecting the notion that the Equal Protection Clause's application "must be limited to situations where the dilution is based on classifications such as race and population." Instead, the three-judge court ruled that the First Amendment and Equal Protection Clause, together, "prohibit a redistricting scheme which (1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds."
The question of whether the issue was one of Equal Protection or First Amendment permeated the oral argument, in part because of the standing hurdle, with Justice Kennedy posing the initial question asking the attorney for Wisconsin (and Gill) to assume that the Court had "decided that this is a First Amendment issue, not an equal protection issue." Later Justice Kennedy asked the attorney for the Wisconsin State Senate as amici curiae who had been allotted time in oral argument the question in a more straightforward manner: "Is there an equal protection violation or First Amendment violation?" assuming standing. In the argument for the challengers to the state redistricting scheme, the attorney for the appellees Paul Smith seemed to lean toward the First Amendment regarding standing, but also stated there was not "anything unusual about using the First Amendment and the Fourteenth Amendment to regulate the abusive management of state elections by state government."
How a court would regulate (or even determine) whether state government's regulation was "abusive" is one of the central questions, no matter the doctrinal frame. Are there manageable judicial standards? Does the "efficiency gap" [EG] provide those standards? Justice Breyer sought to provide a framework early in the argument:
So I'd have step one. The judge says,Was there one party control of the redistricting? If the answer to that is no, say there was a bipartisan commission, end of case. Okay?
Step two, is there partisan asymmetry? In other words, does the map treat the political parties differently? And a good evidence of that is a party that got 48 percent of the vote got a majority of the legislature. Other evidence of that is what they call the EG, which is not quite so complicated as the opposition makes it think. Okay? In other words, you look to see.
Question 3, is -- is there going to be persistent asymmetry over a range of votes? That is to say one party, A, gets 48 percent, 49 percent, 50 percent, 51, that's sort of the S-curve shows you that, you know, whether there is or is not. And there has to be some.
And if there is, you say is this an extreme outlier in respect to asymmetry? And then, if all those -- the test flunks all those things, you say is there any justification, was there any other motive, was there any other justification?
Now, I suspect that that's manageable.
Justice Gorsuch returned to Breyer's standards later in the argument, essentially asking counsel for the challengers what the limiting principle would be so that every district would not be subject to litigation.
Justice Kagan also sought a limiting principle, especially since the redistricting map at issue was so problematical. Yet Justice Kagan contended that the science of the redistricting was a science - - - and settled and understandable - - - although Chief Justice Roberts referred to the EG as "sociological gobbledygook." The Chief Justice also noted that the EG "doesn't sound like language in the Constitution," and that the "intelligent man on the street" would view the Court as being political - - - "the Supreme Court preferred the Democrats over the Republicans" - - - which would cause "serious harm to the status and integrity of the decisions of this Court."
For Justices Ginsburg and Sotomayor, the central concern seemed to be protecting what Ginsburg called "the precious right to vote" and what Sotomayor criticized as "stacking the deck," asking about the political value of gerrymandering at all. Justice Sotomayor also described the repeated map-making and redrawing of districts until the Wisconsin map was as partisan as it could possibly be. She asked the attorney for Wisconsin why the legislators didn't use one of the earlier maps. He answered: "Because there was no constitutional requirement that they do so." She responded: "That's the point."
As always, it is unclear from oral argument what the Court might do, but there did seem to be recognition of the problem of gerrymandering and the possibility of manageable standards with a limiting principle for many of the Justices.
Monday, May 15, 2017
A panel of the Ninth Circuit - - - Judge Ronald Gould, Judge Richard Paez, and Senior Judge Michael Hawkins - - - heard oral arguments in Hawai'i v. Trump, the appeal from the preliminary injunction against the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780) (colloquially known as the revised travel ban or "Muslim Ban 2.0").
Arguing for the DOJ in favor of the United States was Acting Solicitor General Jeffrey Wall, who also argued the same position a week ago in the Fourth Circuit en banc argument in Trump v. International Refugee Assistance Project (IRAP). Indeed, there were specific references in the Ninth Circuit argument to that argument with regard to the scope of the injunction in Hawai'i v. Trump. The argument spent a fair amount of time on the statutory claims, which were a basis of Maryland District Judge Theodore Chuang's injunction on appeal to the Fourth Circuit, but were not the basis of the injunction by Hawai'i District Judge Derrick Watson, who ruled on the basis of the Establishment Clause. The issue of standing also peppered the arguments. Wall's argument in the Ninth Circuit seemed less emphatic about the "presumption of regularity" entitled to the President than the argument last week, perhaps because of intervening events. Wall certainly did, however, hammer the Government's point that the deferential standard of Kleindienst v. Mandel (1972) should apply. And although it was not specifically referenced, the dissent from en banc review in a Ninth Circuit precursor case, Washington v. Trump, which largely rested on Mandel, implicitly shaped the arguments.
For his part, arguing for Hawai'i, Neal Katyal, formerly with the Department of Justice, stressed that the Ninth Circuit's panel opinion in Washington v. Trump should be the model. Katyal argued that the EO was unprecedented.
The video of the argument is worth watching, not only for its explication of the issues, but also as examples of excellent appellate advocacy.
However, there was a quite odd interchange regarding Neal Katyal's previous litigation stances. At around 52:03 in the video above, Senior Judge Hawkins said to Katyal, "You have argued in the past to give deference to the Executive in immigration matters." After Katyal's acknowledgement, Judge Hawkins refers to an amicus brief in United States v. Texas and reads a passage. The brief to which Hawkins seems to have been referring is Brief of Former Commissioners of the United States Immigration and Naturalization Service as Amici Curiae In Support Of Petitioners and the portions seem to be from page 12 of the brief, supporting the Congressional grant of wide authority to make decisions regarding deferred action in immigration deportations. After Katyal's response, Judge Hawkins made a second reference: "You also wrote a brief in Flores-Villar." The brief to which Hawkins refers is Katyal's brief as Acting Solicitor General for the Respondent United States in Flores-Villar v. United States, involving a mother-father differential for unwed parents. Judge Hawkins reads the following passage without the case references or citations:
[T]he United States’ “policy toward aliens” is “vitally and intricately interwoven with * * * the conduct of foreign relations,” a power that likewise is vested in the political Branches. Harisiades v. Shaughnessy, 342 U.S. 580, 588-589 (1952). “Any rule of constitutional law that would inhibit the flexibility of the political branches of government to respond to changing world conditions should be adopted only with the greatest caution.” Mathews v. Diaz, 426 U.S. 67, 81 (1976).
Katyal responds that when he was with the United States Government he tried to convince the United States Supreme Court of this, but the Court "did not bite." Recall that Flores-Villar was a 4-4 affirmance of the Ninth Circuit.
Certainly, both United States v. Texas, which has usually surfaced in the context of a state's standing, and Flores-Villar are somewhat pertinent immigration cases involving the scope of judicial deference. Nevertheless, specific references to an individual attorney's briefs does seem unusual.
May 15, 2017 in Congressional Authority, Courts and Judging, Current Affairs, Due Process (Substantive), Establishment Clause, Executive Authority, First Amendment, Oral Argument Analysis, Recent Cases, Standing | Permalink | Comments (0)