Friday, January 10, 2020
The United States Supreme Court granted certiorari in Barr v. Political Consultants involving a First Amendment challenge to a provision of the Telephone Consumer Protection Act of 1991 (the “TCPA”), 47 U.S.C. § 227(b)(1)(A).
The federal law prohibits calls to cell phones by use of an automated dialing system or an artificial or prerecorded voice, subject to three statutory exemptions including one added in 2015 for automated calls that relate to the collection of debts owed to or guaranteed by the federal government.
The challengers, political consultants and similar entities, argued that this exemption violated the First Amendment as a content regulation that could not survive strict scrutiny and further that the exemption could not be severed from the TCPA.
The district judge held that the TCPA exemption was content-based but satisfied strict scrutiny review. The Fourth Circuit's opinion agreed that the exemption was content-based, applying the rubric from Reed v. Town of Gilbert (2015). Like the district judge, the panel rejected the government's contention that it was not content-based but only relationship-based. The panel stated:
Instead, the exemption regulates on the basis of the content of the phone call. Under the debt-collection exemption, the relationship between the federal government and the debtor is only relevant to the subject matter of the call. In other words, the debt-collection exemption applies to a phone call made to the debtor because the call is about the debt, not because of any relationship between the federal government and the debtor.
a private debt collector could make two nearly identical automated calls to the same cell phone using prohibited technology, with the sole distinction being that the first call relates to a loan guaranteed by the federal government, while the second call concerns a commercial loan with no government guarantee.
Unlike the district judge, the Fourth Circuit concluded that the exemption failed strict scrutiny:
It is fatally underinclusive for two related reasons. First, by authorizing many of the intrusive calls that the automated call ban was enacted to prohibit, the debt-collection exemption subverts the privacy protections underlying the ban. Second, the impact of the exemption deviates from the purpose of the automated call ban and, as such, it is an outlier among the other statutory exemptions.
However, the Fourth Circuit agreed with the government that the exemption was severable, citing NFIB v. Sebelius (2012), and reasoning that severing the debt-collection exemption will not undermine the automated call ban. given that for twenty-four years, from 1991 until 2015, until the exemption was added, the automated call ban was “fully operative.”
The United States Supreme Court has now added this case to its 2019-2020 Term.
Monday, December 23, 2019
The United States Supreme Court granted certiorari to two Ninth Circuit cases and consolidated them: Our Lady of Guadalupe School v. Morrisey-Berru and St. James School v. Biel.
Both cases involve an application of the First Amendment's "ministerial exception" first accepted by the Court in 2012 in Hosana-Tabor Evangelical Lutheran Church and School v. EEOC. In the unanimous decision in Hosanna-Tabor, the Court found that the school teacher Cheryl Perich was tantamount to a minister. Thus, under both Religion Clauses of the First Amendment, as a "minister" her employment relations with her church school employer were eligible for a "ministerial exception" to the otherwise applicable employment laws, in that case the Americans with Disabilities Act.
But who is a "ministerial" employee subject to the exemption from employment laws?
Chief Justice Roberts' opinion for the Court in Hosanna-Tabor declined to provide a test for deciding whether or not an employee was within the ministerial exception. However, the Court did extensively analyze Cheryl Perich's employment. And the lower courts have been struggling with how to analogize to the Court's conclusions regarding the "called teacher" Perich.
In the unpublished and very brief panel opinion in Morrisey-Berru, the court stated that the Court in Hosanna-Tabor considered four factors in analyzing whether the exception applied:
- (1) whether the employer held the employee out as a minister by bestowing a formal religious title;
- (2) whether the employee’s title reflected ministerial substance and training;
- (3) whether the employee held herself out as a minister; and
- (4) whether the employee’s job duties included “important religious functions.”
Applying those factors, the Ninth Circuit panel stated:
Considering the totality of the circumstances in this case, we conclude that the district court erred in concluding that Morrissey-Berru was a “minister” for purposes of the ministerial exception. Unlike the employee in Hosanna-Tabor, Morrissey-Berru’s formal title of “Teacher” was secular. Aside from taking a single course on the history of the Catholic church, Morrissey-Berru did not have any religious credential, training, or ministerial background. Morrissey-Berru also did not hold herself out to the public as a religious leader or minister.
Morrissey-Berru did have significant religious responsibilities as a teacher at the School. She committed to incorporate Catholic values and teachings into her curriculum, as evidenced by several of the employment agreements she signed, led her students in daily prayer, was in charge of liturgy planning for a monthly Mass, and directed and produced a performance by her students during the School’s Easter celebration every year. However, an employee’s duties alone are not dispositive under Hosanna-Tabor’s framework. See Biel v. St. James Sch. (9th Cir. 2018). Therefore, on balance, we conclude that the ministerial exception does not bar Morrissey-Berru’s ADEA claim.
Biel, relied upon in Morrisey-Berru's unpublished opinion, was much more contentious. Reversing the district court, the Ninth Circuit panel's opinion in Biel similarly considered four factors from Hosanna-Tabor and applying them to the school teacher Kristen Biel concluded that she was not a ministerial employee. For the panel in Biel, she
by contrast, has none of Perich’s credentials, training, or ministerial background. There was no religious component to her liberal studies degree or teaching credential. St. James had no religious requirements for her position. And, even after she began working there, her training consisted of only a half-day conference whose religious substance was limited. Unlike Perich, who joined the Lutheran teaching ministry as a calling, Biel appears to have taken on teaching work wherever she could find it: tutoring companies, multiple public schools, another Catholic school, and even a Lutheran school.
Also in contrast to Perich, nothing in the record indicates that Biel considered herself a minister or presented herself as one to the community. She described herself as a teacher and claimed no benefits available only to ministers.
Only with respect to the fourth consideration in Hosanna-Tabor do Biel and Perich have anything in common: they both taught religion in the classroom. Biel taught lessons on the Catholic faith four days a week. She also incorporated religious themes and symbols into her overall classroom environment and curriculum, as the school required. We do not, however, read Hosanna-Tabor to indicate that the ministerial exception applies based on this shared characteristic alone. If it did, most of the analysis in Hosanna-Tabor would be irrelevant dicta, given that Perich’s role in teaching religion was only one of the four characteristics the Court relied upon in reaching the conclusion that she fell within the ministerial exception.
And even Biel’s role in teaching religion was not equivalent to Perich’s.. . .
The panel's opinion in Biel was not unanimous. A dissenting judge would have held that Biel was a minister in large part because her teaching duties at a Catholic school included religious teachings; the judge was "struck by the importance of her stewardship of the Catholic faith to the children in her class. Biel’s Grade 5 Teacher title may not have explicitly announced her role in ministry, but the substance reflected in her title demonstrates that she was a Catholic school educator with a distinctly religious purpose."
The petition for rehearing en banc was denied, but with a lengthy dissenting opinion by Judge R. Nelson joined by an addition eight Ninth Circuit Judges - - - that's nine Judges dissenting. Judge Nelson's opinion argues that the panel opinion in Biel (as well as the opinion in Morrisey-Berru) had taken the narrowest possible interpretation of Hosanna-Tabor, so narrow as to have "excised the ministerial exception, slicing through constitutional muscle and now cutting deep into core constitutional bone." For the dissenting judges,
In turning a blind eye to St. James’s religious liberties protected by both Religion Clauses, we exhibit the very hostility toward religion our Founders prohibited and the Supreme Court has repeatedly instructed us to avoid.
With the Court's grant of certiorari in Biel and Morrisey-Berru, perhaps there will be more clarity regarding the factors of Hosanna-Tabor and how they should be applied to teachers in private schools run by religious organizations.
The facts of Biel may strike many as particularly sympathetic: Kristen Biel was diagnosed with breast cancer and terminated when she said she would have to take some time off work when she underwent chemotherapy. St. James's principal, Sister Mary Margaret, told Biel it was not "fair" "to have two teachers for the children during the school year.” If she had worked for a nonreligious school, Biel would have been protected by the Americans with Disabilities Act.
The Court is set to decide whether Biel and seemingly almost every teacher at a private school operated by a religious organization should be excluded from the employment protections afforded other workers.
[image "Chalk Lessons, or the Black-board in the Sunday School. A Practical Guide for Superintendents and Teachers" by Frank Beard (1896), via]
Friday, December 6, 2019
SCOTUS Grants Certiorari in First Amendment Challenge to Delaware Constitution's Judicial Appointment Provision
The United States Supreme Court granted certiorari in Adams v. Carney, Governor of Delaware in which the Third Circuit held several sections of the Delaware Constitution regarding the selection of judges violated the First Amendment.
Centrally, the Delaware Constitution, Art IV §3 seeks to achieve a partisan balance in the judiciary and provides that appointments to the state judiciary "shall at all times be subject to the following limitations":
First, three of the five Justices of the Supreme Court in office at the same time, shall be of one major political party, and two of said Justices shall be of the other major political party.
Second, at any time when the total number of Judges of the Superior Court shall be an even number not more than one-half of the members of all such offices shall be of the same political party; and at any time when the number of such offices shall be an odd number, then not more than a bare majority of the members of all such offices shall be of the same major political party, the remaining members of such offices shall be of the other major political party.
Third, at any time when the total number of the offices of the Justices of the Supreme Court, the Judges of the Superior Court, the Chancellor and all the Vice-Chancellors shall be an even number, not more than one-half of the members of all such offices shall be of the same major political party; and at any time when the total number of such offices shall be an odd number, then not more than a bare majority of the members of all such offices shall be of the same major political party; the remaining members of the Courts above enumerated shall be of the other major political party.
In its opinion, the Third Circuit panel found that this political balancing violated the First Amendment, concluding that it was not within the protections for political policymakers of Elrod v. Burns (1976) and Branti v. Finkel (1980). The Third Circuit found that even assuming that "judicial political balance is a vital Delaware interest," Delaware failed to demonstrate that this goal could not be realized using less restrictive means of infringing on the plaintiff's associational interests.
And while the Third Circuit found that the plaintiff, a retired Delaware attorney who belonged to neither major party. lacked standing to challenge the Delaware constitutional provisions regarding Family Court and the Court of Common Pleas. The United States Supreme Court, however, has directed briefing on the issue of Article III standing, presumably pertinent to the other provisions.
Monday, December 2, 2019
The Court heard oral argument in New York State Rifle & Pistol Association Inc. v. City of New York, New York regarding a New York City regulation that allows a person having a "premises license" — one the most restricted type of licenses — for handguns to “transport her/his handgun(s) directly to and from an authorized small arms range/shooting club, unloaded, in a locked container, the ammunition to be carried separately,” but further defines an "authorized" range/shooting club as limited to facilities located in New York City. Recall that the Second Circuit unanimously upheld the regulation.
There is a substantial mootness question here: the City of New York changed the regulation to allow for transport to another residence and a range or shooting club, whether or not those secondary places are within the City. Additionally, the state of New York amended its law to provide for the legality of transport. The Court had previously rejected a filed "Suggestion of Mootness" and instructed the parties to address the issue at oral argument.
Arguing for the NYSRPA, a state gun-rights organization, Paul Clement broached the subject of mootness in his introduction and Justice Ginsburg asked him "So what's left of this case? The Petitioners have gotten all the relief that they sought." While Clement argued they were entitled to an injunction, the mootness issue resurfaced again and again. Arguing for the United States, supporting the gun rights organization, Principal Deputy Solicitor General Jeffrey Wall contended the named plaintiffs could be entitled to damages and thus the case was not moot. On behalf of the City of New York, Richard Dearing argued that "changes in state and city law have given Petitioners everything they asked for and, indeed, more than that," and that rather than view the City's actions "skeptically," it is a "good thing and not a cause for concern when the government responds to litigation by resolving matters through the democratic process." As to any damages claim that might be added in the future by petitioners, Dearing argued that this would be a unique support for the courts exercising Article III power.
On the merits, an underlying argument concerns the level of scrutiny suitable for evaluating the law. The Second Circuit panel tracked the analytic structure articulated previously by the Second Circuit in New York State Rifle & Pistol Ass'n v. Cuomo, decided in 2015. The Second Circuit concluded that intermediate scrutiny was the appropriate standard based on its analysis of two factors: "(1) ‘how close the law comes to the core of the Second Amendment right’ and (2) ‘the severity of the law’s burden on the right.' " The level of scrutiny to be applied to gun regulations was a question left open by the Court's decisions in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010). Yet the oral argument did not delve deeply into this issue. Wall argued that the Second Circuit had applied a "watered-down form of scrutiny" and the correct standard is simply that the "text, history, and tradition" mandate "real protection" for the Second Amendment, seemingly always strict scrutiny.
Justice Kavanuagh, like Justice Thomas, had no questions, and whether or not the Court will dismiss the case as moot is difficult to predict, although it would seem to be a likely outcome. Note also that the Court's legitimacy should it reach the merits in this case will certainly be questioned; an amicus brief by several Senators has made that point and attracted attention.
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, November 11, 2019
In an extensive article in the New Yorker, Is the Supreme Court’s Fate in Elena Kagan’s Hands?, Margaret Talbot provides a profile of Justice Kagan, situating her in her role as the Court's "youngest liberal":
Kagan, who has long been admired by legal scholars for the brilliance of her opinion writing and the incisiveness of her questioning in oral arguments, is emerging as one of the most influential Justices on the Court—and, without question, the most influential of the liberals. That is partly because of her temperament (she is a bridge builder), partly because of her tactics (she has a more acute political instinct than some of her colleagues), and partly because of her age (she is the youngest of the Court’s four liberals, after Ginsburg, Breyer, and Sotomayor).
Talbot is good at relating Kagan's background and her written opinions:
Although Kagan didn’t become a historian, her opinions at the Court often read as though a historian might have written them. It’s not because she stuffs them with references to the Founding Fathers—some of her colleagues do that more often, and more clumsily—but because she knows how to weave an internally coherent and satisfying narrative, incorporating different strands of explanation and event.
Like any historian worth reading, Kagan avoids getting mired in the details. Her best opinions often begin by sounding broad political themes, as though she were gathering people around her to tell a story about democracy.
Definitely worth a read (or a listen) at the New Yorker.
Thursday, October 31, 2019
In commentary on Slate, Dahlia Lithwick assesses how or whether we should "turn the page" on the disturbing confirmation hearings of the newest SCOTUS Justice, Brett Kavanaugh.
She writes that two women Justices have
hailed him as a mentor to his female clerks or as a collegial member of the Nine and urged us, in the case of Justice Sonia Sotomayor, to look to the future and turn the page. It is, of course, their actual job to get over it. They will spend the coming years doing whatever they can to pick off a vote of his, here and there, and the only way that can happen is through generosity and solicitude and the endless public performance of getting over it. I understand this.
As a Supreme Court reporter, I am also expected to afford the new justice that same generosity and solicitude. As a journalist, I am finding it hard to do. After all, he is a man who has already publicly condemned his critics to suffer his wrath for embarrassing him. He is a man who has promised that his doubters and detractors will “reap the whirlwind.”
Lithwick raises the question of what we "owe" to the newest Justice — and the Court and the judiciary — a year later.
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)
Sunday, October 6, 2019
The United States Supreme Courts 2019 Term begins with oral arguments in three cases that will impact LGBTQ equality. To be clear, the Court is not considering constitutional law issues. Instead all three cases involve statutory interpretation of the prohibition of discrimination "because of sex" in Title VII of the 1964 Civil Rights Act, 42 U.S.C. §2000e et. seq.
The two consolidated cases both involve sexual orientation discrimination. In Altitude Express v. Zarda, the Second Circuit en banc held that sexual orientation discrimination constituted a form of discrimination "because of sex" under Title VII, overruling previous Second Circuit decisions, and provoking the dissent of four judges. Reaching the opposite conclusion, the Eleventh Circuit in Bostock v. Clayton County Board of Commissioners, clung to its previous precedent, first in an unpublished opinion affirming the dismissal of the complaint, and then in a denial of rehearing en banc requested by a member of the court, with two judges issuing a dissenting opinion.
In deciding whether or not sexual orientation discrimination is included in Title VII's "because of sex" language, the primary precedent for the Court is its unanimous opinion in Oncale v. Sundowner Offshore Services (1998), authored by the late Justice Scalia. The claim involved same-sex sexual harassment and the Court held:
We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits “discriminat[ion] . . . because of . . . sex” in the “terms” or “conditions” of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.
The third case LGBTQ Title VII case to be considered by the Court in the Term's opening days is R.G. & G.R. Harris Funeral Homes v. EEOC. The Sixth Circuit, in its unanimous panel opinion reversing the district judge, found that discrimination "against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII" under the "because of sex" discrimination prohibition. The court found that the "Funeral Home fired Stephens because she refused to abide by her employer’s stereotypical conception of her sex" and that the religious claim under the Religious Freedom Restoration Act, RFRA, 42 U.S.C. § 2000bb–1, raised by the funeral home's owner failed because "Title VII here is the least restrictive means of furthering its compelling interest in combating and eradicating sex discrimination."
While the Court has not previously decided a case of transgender discrimination under Title VII, the Court's opinion in Price Waterhouse v. Hopkins (1989) held that sex-stereotyping is included within the prohibition of discrimination "because of sex" under Title VII. Hopkins is a fractured opinion, and none of the Justices who decided the case remain on the Court.
These statutory interpretation cases will provide an indication of the Court's views on LGBTQ equality, a subject last at the Court in the closely-divided same-sex case Obergefell v. Hodges (2015), decided under the Fourteenth Amendment. Further, these three Title VII cases may illuminate how the Court is considering precedent.
Finally, no matter how the Court decides these Title VII issues, Congress retains ultimately authority. In 2019, the House of Representatives passed "The Equality Act" which would amend the 1964 Civil Rights Act to include prohibitions of discrimination on the basis of sexual orientation and gender identity. The Senate has yet to take up this legislation.
October 6, 2019 in Courts and Judging, Current Affairs, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Gender, Religion, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (0)
Thursday, August 15, 2019
Theatrical Performance featuring readings from
Thursday, June 27, 2019
In its highly anticipated opinion 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 Court held that given the "unusual circumstances" of the case, the matter should be remanded to the agency to provide a "reasoned explanation" for its decision pursuant to the Administrative Procedure Act (APA), thus affirming the district court on this point.
Chief Justice Roberts's opinion for the Court is relatively brief — 29 pages — but the brevity is undercut by the shifting alliances within the opinion's sections and the additional 58 pages of opinions concurring in part and dissenting in part.
Recall the basic issue from oral argument: whether the challengers had standing, the actual enumeration requirements in the Constitution, Art. I, § 2, cl. 3, and Amend. XIV, § 2, and the nonconstitutional issues centering on the Administrative Procedure Act. The equal protection argument receded into the background on appeal, but has re-emerged in other proceedings.
After explaining the facts and procedural history, including the rather unusual question of whether the Secretary of Commerce, Wilbur Ross, should be deposed, the Court unanimously held the challengers had standing, rejecting the government's contrary contention: "we are satisfied that, in these circumstances, respondents have met their burden of showing that third parties will likely react in predictable ways to the citizenship question, even if they do so unlawfully and despite the requirement that the Government keep individual answers confidential."
A majority of the Court, Roberts joined by Thomas, Alito, Gorsuch, and Kavanaugh — held that the Enumeration Clause did not provide a basis to set aside the determination of Wilbur Ross. The majority held that the Constitution vests Congress with virtually unlimited discretion to conduct the census, and that Congress has delegated this broad authority to the Secretary of Commerce. The majority stated that "history matters" so that "early understanding and long practice" of inquiring about citizenship on the census should control.
A notably different but numerically larger — 7 Justices — rejected the government's contention that the discretion given by Congress to the Secretary of Commerce is so broad as to be unreviewable. There is "law to apply" and the statute provides criteria for meaningful review. Only Justices Alito and Gorsuch disagreed with this conclusion.
And yet another majority, the same majority as the holding for no claim under the Enumeration Clause — Roberts was joined by Thomas, Alito, Gorsuch, and Kavanaugh — rejected the claim "at the heart of this suit" that Secretary Ross "abused his discretion in deciding to reinstate the citizenship question." Essentially, this majority held that because the statute gives the Secretary to make policy choices and "the evidence before the Secretary hardly led ineluctably to just one reasonable course of action."
That same majority rejected the claim of violations of the APA by Secretary Ross in the collection of information and data, and even if he did so, it was harmless.
Finally, the Chief Justice's opinion for the Court — this time with a majority of Justices Ginsburg, Breyer, Sotomayor, and Kagan, considered the district judge's conclusion that the decision of the Secretary of Commerce, Wilbur Ross, rested on a pretextual basis. The Court's opinion reviewed the evidence presented to the district court:
That evidence showed that the Secretary was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process. In the District Court’s view, this evidence established that the Secretary had made up his mind to reinstate a citizenship question “well before” receiving DOJ’s request, and did so for reasons unknown but unrelated to the VRA.
After considering other evidence, the Court concluded:
Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision. In the Secretary’s telling, Commerce was simply acting on a routine data request from another agency. Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency). And unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA enforcement rationale—the sole stated reason—seems to have been contrived.
We are presented, in other words, with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decisionmaking process. It is rare to review a record as extensive as the one before us when evaluating informal agency action— and it should be. But having done so for the sufficient reasons we have explained, we cannot ignore the disconnect between the decision made and the explanation given. Our review is deferential, but we are “not required to exhibit a naiveté from which ordinary citizens are free.” United States v. Stanchich, 550 F. 2d 1294, 1300 (CA2 1977) (Friendly, J.). The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.
In these unusual circumstances, the District Court was warranted in remanding to the agency . . . .
Thus the Court remanded the decision to the agency for further explanation. To be sure, this conclusion and section seems inconsistent with the "abuse of discretion" section finding no "abuse of discretion." And notably, Chief Justice Roberts is the only Justice supporting both of those conclusions.
Also notably, the Court's opinion does not comment on any of the recently revealed evidence or new proceedings - updates shortly.
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.
Monday, June 24, 2019
SCOTUS Declares Lanham Act Provision Barring "Immoral" or "Scandulous" Trademarks Violates First Amendment
In its opinion in Iancu v. Brunetti the United States Supreme Court held that 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, violates the First Amendment.
Recall from the oral argument its centerpiece was the applicability of the Court's recent decision in Matal v. Tam (2017) which held that the disparagement provision in Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a) violated the First Amendment. Justice Kagan's relatively brief — 11 pages — opinion for the Court begins with a citation to Tam and then states, "We hold that this provision infringes the First Amendment for the same reason: It too disfavors certain ideas."
At issue in Brunetti was a fashion line, which as Kagan explains:
uses the trademark FUCT. According to Brunetti, the mark (which functions as the clothing’s brand name) is pronounced as four letters, one after the other: F-U-C-T. But you might read it differently and, if so, you would hardly be alone. See Tr. of Oral Arg. 5 (describing the brand name as “the equivalent of [the] past participle form of a well-known word of profanity”). That common perception caused difficulties for Brunetti when he tried to register his mark with the U. S. Patent and Trademark Office (PTO).
Justice Kagan's opinion for the Court found the "immoral or scandalous" ban to be viewpoint-based with a viewpoint-discriminatory application. Kagan provides some examples of the inconsistencies, including the PTO refusing to register a trademark "Madonna" for wine while allowing "Praise the Lord" for a game. Further, the Court stated, the "immoral or scandalous" bar is "overly broad."
Justices Thomas, Ginsburg, Alito, Gorsuch, and Kavanaugh joined in Kagan's opinion. But Alito wrote very briefly separately, disavowing the label of "moral relativism" that might be applied to the Court's opinion and making clear that Congress could adopt a more narrow statute. The other Justices wrote separate opinions concurring in part and dissenting in part.
The major dissenting opinion, by Justice Sotomayor concurring in part and dissenting in part, focuses on the "scandalous" provision, arguing that the Court's opinion means that the United States will have no choice but to begin registering marks "containing the most vulgar, profane, or obscene words and images imaginable." Sotomayor's opinion, joined by Breyer, and echoed in Chief Justice Roberts's opinion also dissenting in part, is longer than the Court's opinion, and argues that the Court should have accepted the narrowing construction of "scandalous" — "interpreting it to regulate only obscenity, vulgarity, and profanity" — which would save it from unconstitutionality. Sotomayor also discusses the special context of trademarks, which while not government speech, do have a type of governmental involvement. It is not that the speech is being prohibited, but only that the Lanham Act prohibited registration of the trademark.
[image: Kagan and Sotomayor, via]
Friday, June 21, 2019
In its opinion in Knick v. Township of Scott, Pennsylvania, a closely divided United States Supreme Court held that a person alleging that their property has been taken by state or local governments may sue in federal court without seeking compensation from state courts, overruling Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City (1985).
The case was reargued in February 2019 after Justice Kavanaugh joined the Court and his vote made a difference: the majority opinion by Chief Justice Roberts is joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh. Justice Kagan wrote the dissenting opinion, joined by Justices Ginsburg, Breyer, and Sotomayor.
The facts involve a regulatory taking challenge by the owner of land in rural Pennsylvania which includes a "family cemetery" in the Township of Scott, which had passed an ordinance requiring cemeteries be kept open to the public in daylight hours. The land owner Rose Mary Knick challenged the ordinance as a taking in state court seeking only declarative and injunctive relief, but not "just compensation." She thereafter went to federal court, which dismissed her action under the doctrine of Williamson County, which required seeking "inverse condemnation" (and thus "just compensation") in state court, and the Third Circuit affirmed.
Writing for the five Justice majority, Chief Justice Roberts holds that the Fifth Amendment's Taking Clause is violated when the taking occurs and the property owner must be able to bring an action in federal court at that time. The effective establishment of an "exhaustion requirement" in Williamson County relegates the Takings Clause to a "poor relation" among the Bill of Rights protections, which the majority finds must be remedied by eliminating the requirement to go to state court and therefore "restoring takings claims to the full-fledged constitutional status the Framers envisioned when they included the Clause among other protections in the Bill of Rights." Chief Justice Roberts's majority opinion explains the bad precedent of Williamson County as resulting from the particular procedural facts under which the "Court may not have adequately tested the logic" of the state-litigation requirement and did not anticipate the "preclusion trap" which later resulted (in which the state court findings would be given preclusive effect by the federal court). The Court's opinion concludes that Williamson County should be overruled despite stare decisis given these "shaky foundations," adding that the state-litigation requirement has been subject to criticism and has "proved to be unworkable in practice."
Writing the dissenting opinion for four Justices, Justice Kagan argues that it is not simply Williamson County that is being overruled, but rejects longstanding understandings of the Takings Clause. For the dissenters, the text of the Takings Clause is vital: the Clause states that private property shall not be taken for public use without just compensation. Thus, unlike other constitutional rights which the majority also discusses, Kagan argues that a Takings Clause violation has two necessary elements: "First, the government must take the property. Second, it must deny the property owner just compensation." The failure of the majority to recognize the distinctive aspects of the Takings Clause is is the basis of two of Kagan's four critiques of the Court's opinion. The third critique is based on the Court's reinterpretation of precedent, including under the Williamson County rule, which Justice Kagan states is "with a theory so, well, inventive that it appears in neither the petitioner’s nor her 15-plus amici’s briefs." This is an interesting nod to the amicus briefs filed on behalf of Knick which include briefs from Washington Legal Foundation and Congressman Steve King. Lastly, under the federal Tucker Act, involving claims against the federal government seeking just compensation for a taking.
Perhaps most importantly, Justice Kagan's dissent argues that the consequence of the majority's decision will be to "channel a mass of quintessentially local cases involving complex state-law issues into federal courts." Kagan's opinion highlights the regulatory takings problems (as opposed to the less complex actual taking of property):
This case highlights the difficulty. The ultimate constitutional question here is: Did Scott Township’s cemetery ordinance “go[ ] too far” (in Justice Holmes’s phrase), so as to effect a taking of Rose Mary Knick’s property? Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415 (1922). But to answer that question, it is first necessary to address an issue about background state law. In the Township’s view, the ordinance did little more than codify Pennsylvania common law, which (the Township says) has long required property owners to make land containing human remains open to the public. See Brief for Respondents 48; Brief for Cemetery Law Scholars as Amici Curiae 6–26. If the Township is right on that state-law question, Knick’s constitutional claim will fail: The ordinance, on that ac- count, didn’t go far at all. But Knick contends that no common law rule of that kind exists in Pennsylvania. See Reply Brief 22. And if she is right, her takings claim may yet have legs. But is she? Or is the Township? I confess: I don’t know. Nor, I would venture, do my colleagues on the federal bench. But under today’s decision, it will be the Federal District Court for the Middle District of Pennsylvania that will have to resolve this question of local cemetery law.
Justice Kagan also points out that this is the second time in a month that a five member majority [and indeed, the same five member majority] of the Court has overruled "longstanding precedent," quoting from Justice Breyer's dissent in Franchise Tax Bd. of California v. Hyatt. She writes that "the entire idea of stare decisis is that judges do not get to reverse a decision simply because they never liked it in the first place."
In its opinion in North Carolina Dept of Revenue v. Kimberley Rice Kaestner 1992 Family Trust the United States Supreme Court unanimously held that a state's taxation of a trust based solely on the residence of a beneficiary — even where the beneficiary did not receive any income — violates due process.
Recall our discussion of the view from Professors Bridget Crawford and Michelle Simon that "Kaestner Trust is the most important due process case involving trusts that the Court has decided in over sixty years; it bears directly on the fundamental meaning of due process," and their discussion of the facts and merits of the case. They urged the Supreme Court to affirm the conclusion of the North Carolina Supreme Court that the state lacked the power to tax consistent with due process and that's what the Court did.
Justice Sotomayor's succinct 16 page opinion is a model of clarity and analysis. The Court's conclusion clearly rests on the fact that there was no actual income or entitlement to distribution of any income from the trust managed by an out-of-state trustee:
We hold that the presence of in-state beneficiaries alone does not empower a State to tax trust income that has not been distributed to the beneficiaries where the beneficiaries have no right to demand that income and are uncertain ever to receive it. In limiting our holding to the specific facts presented, we do not imply approval or disapproval of trust taxes that are premised on the residence of beneficiaries whose relationship to trust assets differs from that of the beneficiaries here.
The opinion sets out the doctrine:
The Due Process Clause provides that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.” The Clause “centrally concerns the fundamental fairness of governmental activity.”
In the context of state taxation, the Due Process Clause limits States to imposing only taxes that “bea[r] fiscal relation to protection, opportunities and benefits given by the state.” The power to tax is, of course, “essential to the very existence of government,” but the legitimacy of that power requires drawing a line between taxation and mere unjustified “confiscation.” That boundary turns on the “[t]he simple but controlling question . . . whether the state has given anything for which it can ask return.”
The Court applies a two-step analysis to decide if a state tax abides by the Due Process Clause. First, and most relevant here, there must be “‘some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax.’ ” Second, “the ‘income attributed to the State for tax purposes must be rationally related to “values connected with the taxing State.”’”
To determine whether a State has the requisite “minimum connection” with the object of its tax, this Court borrows from the familiar test of International Shoe Co. v. Washington (1945). A State has the power to impose a tax only when the taxed entity has “certain minimum contacts” with the State such that the tax “does not offend ‘traditional notions of fair play and substantial justice.’” The “minimum contacts” inquiry is “flexible” and focuses on the reasonableness of the government’s action. Ultimately, only those who derive “benefits and protection” from associating with a State should have obligations to the State in question.
Applying this doctrine to a trust involving an instate resident — whether beneficiary, settlor, or trustee—the Court stated that the
Due Process Clause demands attention to the particular relationship between the resident and the trust assets that the State seeks to tax. Because each individual fulfills different functions in the creation and continuation of the trust, the specific features of that relationship sufficient to sustain a tax may vary depending on whether the resident is a settlor, beneficiary, or trustee. When a tax is premised on the in- state residence of a beneficiary, the Constitution requires that the resident have some degree of possession, control, or enjoyment of the trust property or a right to receive that property before the State can tax the asset. Otherwise, the State’s relationship to the object of its tax is too attenuated to create the “minimum connection” that the Constitution requires.
Here, where the only instate resident was a beneficiary who did not receive any income and did not have a right to demand any distribution, the "minimum connection" was not sufficient.
Justice Alito wrote a brief concurring opinion, joined by Chief Justice Roberts and Justice Gorsuch, to stress that "the opinion of the Court merely applies our existing precedent and that its decision not to answer questions not presented by the facts of this case does not open for reconsideration any points resolved by our prior decisions" and the "Court's discussion of the peculiarities of this trust does not change the governing standard, nor does it alter the reasoning applied in our earlier cases."
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
In its divided opinion in Manhattan Community Access Corporation v. Halleck, a majority of the United States Supreme Court held that the actions of a private nonprofit corporation operating a public access television channel did not constitute sufficient state action warranting application of the First Amendment.
Recall that in the Second Circuit's divided opinion (2018), the majority concluded that the "public access TV channels in Manhattan are public forums and the MCAC's employees were sufficiently alleged to be state actors taking action barred by the First Amendment to prevent dismissal" of the complaint, thus reversing the district judge. Importantly, the public access channels are part of Time Warner's cable system and Time Warner is a private company. At the heart of the First Amendment claim are allegations that the 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. During oral argument the Justices grappled with the question of doctrines: whether general constitutional state action doctrine applied or whether public forum doctrine under the First Amendment applied or whether there is a convergence of the two doctrines.
Writing for the majority, Justice Kavanaugh, joined by C.J. Roberts, and Justices Thomas, Alito, and Gorsuch, concluded that general constitutional state action doctrine was the threshold — and determinative — issue. The Court rearticulated the applicable state action doctrine governing when a private entity can qualify as a state actor as limited to a few circumstances:
(i) when the private entity performs a traditional, exclusive public function (citing Jackson v. Metropolitan Edison Co. (1982));
(ii) when the government compels the private entity to take a particular action (citing Blum v. Yarestsky (1982);
(iii) when the government acts jointly with the private entity (citing Lugar v. Edmondson Oil Co. (1982)).
Interestingly, neither the majority nor dissenting opinion cited Edmonson v. Leesville Concrete Co. (1991), in which a six-Justice majority articulated a test for meeting the state action threshold when there was a private actor involved.
Justice Kavanaugh's opinion focused on the first circumstance, and stressed that the requirement means that the government must have traditionally and exclusively performed the function. Given that the relevant function was defined as the "operation of public access channels on a cable system," the Court had little difficulty in concluding that the requirement was not met under a "commonsense principle":
Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed. Therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor. After all, private property owners and private lessees often open their property for speech. Grocery stores put up community bulletin boards. Comedy clubs host open mic nights.
The majority further rejected the plaintiffs' argument that state action was present because New York City designated MNN to operate the public access channels and New York state heavily regulates public access channels. The majority stated, however, that even where there is a contract or monopoly, the private actor is not converted into a private actor into a state actor "unless the private entity is performing a traditional, exclusive government function."
The majority also rejected the plaintiffs' argument that the public access channels are the "property" of the state of New York rather than the property of the cable network (Time Warner) or of MNN itself. The majority found, however, that "nothing in the franchise agreements" suggests that the city "possesses any property interest" in Time Warner's cable system or in the public access channels operated by Time Warner. The government could have decided to operate the public access channels itself, in which case that might be different, but that did not happen here.
Dissenting, Justice Sotomayor, joined by Justices Ginsburg, Breyer, and Kagan, argued that the majority misconstrued the case before the Court and this case is actually "about an organization appointed to administer a constitutional public forum" and not simply "about a private property owner that simply opened up its property to others." For the dissenting Justices, when MNN accepted the contractual agency relationship, it "stepped into the City's shoes and thus qualifies as a state actor, subject to the First Amendment like any other." The dissent argued that MNN was not simply a private actor that "simply sets up shop against a regulatory backdrop," but that it occupies its role because it was asked by New York City to do so, and was deputized by the city to administer the public access channels. The dissent also argued that the requirement that the private actor be performing a traditional and exclusive function only applies when the "private actor ventures of its own accord into territory shared (or regulated) by the government." Otherwise, the doctor hired to provide medical care to state prisoners would not be a state actor, unlike the Court's unanimous holding in West v. Atkins (1988), because "Nobody thinks that orthopedics is a function 'traditionally exclusively reserved to the State.'"
The Court's divided opinion reveals an established political rift in state action doctrine and theory. In the penultimate paragraph in Justice Kavanaugh's opinion for the majority, he writes:
It is sometimes said that the bigger the government, the smaller the individual. Consistent with the text of the Constitution, the state-action doctrine enforces a critical boundary between the government and the individual, and thereby protects a robust sphere of individual liberty. Expanding the state-action doctrine beyond its traditional boundaries would expand governmental control while restricting individual liberty and private enterprise. We decline to do so in this case.
On the other hand, Justice Sotomayor for the four dissenting Justices concludes:
This is not a case about bigger governments and smaller individuals; it is a case about principals and agents. New York City opened up a public forum on public- access channels in which it has a property interest. It asked MNN to run that public forum, and MNN accepted the job. That makes MNN subject to the First Amendment, just as if the City had decided to run the public forum itself.
While the majority emphasizes that its decision is narrow and factbound, that does not make it any less misguided. It is crucial that the Court does not continue to ignore the reality, fully recognized by our precedents, that private actors who have been delegated constitutional responsibilities like this one should be accountable to the Constitution’s demands. I respectfully dissent.
Thus, while the decision seems narrow, it could be a harbinger of a narrowing of state action doctrine to release private entities that contract with the state from constitutional constraints unless the entities are performing a traditional and exclusive function of the government, even if the entities are "in the shoes" of the state.
Friday, June 7, 2019
In its unanimous opinion in State of Washington v. Arlene's Flowers, the Washington Supreme Court concluded there was no First Amendment infringement when the state found Arlene's Flowers violated the Washington Law Against Discrimination (WLAD), by refusing to sell wedding flowers to a same-sex couple.
Recall that in June 2018, the United States Supreme Court without opinion, in Arlene's Flowers v. Washington, granted the petition for writ of certiorari, vacated the judgment of the Washington Supreme Court, and remanded the case for consideration in light of its decision earlier than month in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n. Given the holding in Masterpiece Cakeshop that the Colorado Civil Rights Commission, or one specific commissioner, exhibited "hostility" to the cakemaker in that case, the Washington Supreme Court was now tasked with determining whether there was a similar hostility towards the religion of the florist in Arlene's Flowers, Baronnelle Stutzman, and if so, applying strict scrutiny.
The Washington Supreme Court, on page 2 of its 76 page opinion, proclaimed: "We now hold that the answer to the Supreme Court's question is no; the adjudicatory bodies that considered this case did not act with religious animus when they ruled that the florist and her corporation violated the Washington Law Against Discrimination . . . ."
The Washington Supreme Court's lengthy opinion admittedly includes passages from its 2017 opinion which thoroughly discussed and applied the First Amendment standards, but it also carefully delves into the question of government hostility toward religion. The court found irrelevant one contested incident involving the Attorney General of Washington which occurred after the Washington Supreme Court's 2017 opinion, noting that the issue was one of adjudicatory animus and not executive branch animus; any claim that there was selective prosecution lacked merit. The Washington Supreme Court also rejected Stutzman's claim that the scope of the injunction in the 2017 opinion mandated that Stutzman "personally attend and participate in same-sex weddings."
The Washington Supreme Court's opinion concludes that "After careful review on remand, we are confident that the courts resolved this dispute with tolerance, and we therefore find no reason to change our original judgment in light of Masterpiece Cakeshop. We again affirm the trial court's rulings."
It is a solid well-reasoned unanimous opinion, but given this hard-fought and well-financed litigation, it's likely that Arlene's Flowers will again petition the United States Supreme Court for certiorari.
image: Vincent Van Gogh, Twelve Sunflowers in a Vase, circa 1887, via.
June 7, 2019 in Courts and Judging, Family, Federalism, First Amendment, Fourteenth Amendment, Gender, Opinion Analysis, Recent Cases, Religion, Sexual Orientation, State Constitutional Law, Supreme Court (US) | Permalink | Comments (0)
Friday, May 31, 2019
Responding to Justice Thomas's concurring opinion from a denial of certiorari in Box v. Planned Parenthood of Indiana, legal commentator Imani Gandy (pictured) writes When It Comes to Birth Control and Eugenics, Clarence Thomas Gets It All Wrong.
Specifically, Gandy takes on the history of Margaret Sanger (1879-1966), who she states is not necessarily a present-day "infallible feminist hero" and certainly had the same abelist views that the Court credited in Buck v. Bell.
But, on the subject of race, Gandy writes:
The framing of Thomas’ concurrence, however, suggests that she [Sanger] did want to reduce the Black population. This framing extends to his description of the Negro Project, which Sanger created in conjunction with some of the most prominent Black civil rights leaders of the time—Franklin Frazier, Walter White, Rev. Adam Clayton Powell, Mary McLeod Bethune, and W.E.B DuBois—in order to bring birth control to the South. Thomas writes as if her mere advocacy for birth control was in and of itself racial eugenics. And he virtually ignores that Black women in the South wanted birth control and had taken their reproduction into their own hands since the days of enslavement, when women would self-induce abortions or even kill their newborns in order to save them from a life of slavery.
Gandy's commentary also provides an interesting critique of Thomas's use of a Sanger quotation by providing larger context. Gandy writes: "What Thomas leaves out is the very next sentence that Sanger wrote . . ." and thus invites the reader to think more deeply about the history of birth control.
Predictably, Thomas's concurring opinion is provoking other commentaries, but Gandy's piece is among the most insightful.