Monday, May 13, 2019
The Court denied certiorari to the Ninth Circuit in Dahne v. Richey with a dissenting opinion by Justice Alito, joined by Justices Thomas and Kavanaugh. For the dissenters, the question was whether the First Amendment requires a "prison to entertain a prisoner grievance that contains veiled threats to kill or injure a guard?"
The Ninth Circuit's Memorandum Opinion did not characterize the prisoner's grievance as threatening, but instead stated that it included "rude comments about the guard’s weight, including describing her as “extremely obese." The dissenting opinion from certiorari and the Ninth Circuit opinion both agree that the prison official told the prisoner to rewrite the grievance, which the prisoner did, but did not cure the defects. For the Ninth Circuit, there was a First Amendment violation when the prison official refused to allow the grievance to proceed through the administrative process after the rewrite did not satisfy the official's "sense of propriety." For the Ninth Circuit, this meant that functionally only a grievance that conformed to an official's "personal conception of acceptable content could get meaningful review," which is "the sort of content-based discrimination that runs contrary to First Amendment protections."
But for Alito and his fellow dissenting Justices, the defects in the grievance offended more than a personal sense of propriety. Instead, the dissenters stated the grievance
contained language that may reasonably be construed as a threat. Specifically, the grievance stated: “It is no wonder [why] guards are assaulted and even killed by some prisoners. When guards like this fat Hispanic female guard abuse their position . . . it can make prisoners less civilized than myself to resort to violent behavior in retaliation.”
For the dissenters, even if "a prison must accept grievances containing personal insults of guards, a proposition that is not self-evident, does it follow that prisons must tolerate veiled threats? I doubt it, but if the Court is uncertain, we should grant review in this case."
Perhaps importantly, the Ninth Circuit in this Memorandum Opinion held there was qualified immunity, which could make the grant of review seem less vital. And while it is always precarious to extrapolate from any opinion to others, the dissent her does bring to mind the issues regarding the boundaries of First Amendment protection before the Court in the trademark case of Iancu v. Brunetti argued in April.
Friday, April 26, 2019
In its extensive opinion in Hodes & Nauser v. Schmidt, the Supreme Court of Kansas held that the right to abortion in protected under its state constitution and regulations of the fundamental right should be subject to strict scrutiny.
The per curiam opinion is exceedingly clear that the opinion rests on independent state constitutional grounds and that it is interpreting §1 of the Kansas state Constitution, adopted in 1859: "All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness." The court specifically finds that this provision creates judicially enforceable "natural rights" such as the right to "personal autonomy" to make decisions regarding our bodies, health care, family formation, and family life, including a woman's right to decide whether to continue a pregnancy.
Having held that the right to an abortion is encompassed within the fundamental right bodily autonomy, the Kansas Supreme Court held that strict scrutiny should apply, which the court articulated as prohibited the state from restricting that right unless it can show it is doing so to further a compelling government interest and in a way that is narrowly tailored to that interest.
At issue in the case is Kansas S.B. 95, passed in 2015, now K.S.A. 65-6741 through 65-6749, which prohibits physicians from performing a specific abortion method referred to in medical terms as Dilation and Evacuation (D & E) except when "necessary to preserve the life of the pregnant woman" or to prevent a "substantial and irreversible physical impairment of a major bodily function of the pregnant woman."
The trial court had issued a preliminary injunction, which the Kansas Supreme Court upheld, but remanded the case for a fuller evidentiary hearing applying strict scrutiny.
via & caption: Kansas Supreme Court
Seated left to right: Hon. Marla J. Luckert, Hon. Lawton R. Nuss, Chief Justice; Hon. Carol A. Beier.
Standing left to right: Hon. Dan Biles, Hon. Eric S. Rosen, Hon. Lee A. Johnson, and Hon. Caleb Stegall.
In a concurring opinion, Justice Dan Biles argued that the majority should be more explicit in articulating how strict scrutiny should be applied in the abortion context, suggesting what "our state test should look like using an evidence-based analytical model taken from Whole Woman's Health v. Hellerstedt" (2016). Justice Biles provided a very detailed roadmap that would be attractive to the trial court. Justice Biles also placed the decision within developments in state constitutional law on abortion:
It is also worth mentioning our court has not gone rogue today. By my count, appellate courts in 17 states have addressed whether their state constitutions independently protect a pregnant woman's decisions regarding her pregnancy from unjustifiable government interference. Of those, 13 have plainly held they do. [citations omitted].
The sole dissenting Justice of the seven Justices of the Kansas Supreme Court (pictured above) was Justice Caleb Stegall, who relied on numerous dissenting opinions in both the United States Supreme Court and Kansas Supreme Court. He began his opinion by stating "This case is not only about abortion policy—the most divisive social issue of our day—it is more elementally about the structure of our republican form of government." In essence, he considers the majority to be taking an activist stance. The majority opinion does devote more than a little attention to refuting and engaging with the dissent's arguments.
Because the case cannot be reviewed by the United States Supreme Court (given that the state's highest court decided it on the independent ground of its state constitution, unless it is argued it infringes on another constitutional right), subsequent constitutional law issues will be concentrated on what happens in the trial court and what might happen in other states.
April 26, 2019 in Abortion, Courts and Judging, Due Process (Substantive), Family, Federalism, Fourteenth Amendment, Jurisdiction of Federal Courts, Opinion Analysis, State Constitutional Law, Supreme Court (US) | Permalink | Comments (0)
Tuesday, April 23, 2019
Third Circuit Upholds Philadelphia's Refusal to Refer Foster Children to Organizations that Discriminates on Basis of Sexual Orientation
In its opinion in Fulton v. City of Philadelphia, a unanimous panel of the Third Circuit affirmed the district court's denial of a preliminary injunction against Philadelphia for stopping its referral of foster children to organizations that discriminate on the basis of sexual orientation in their certification of foster parents.
Much of the litigation centers on Catholic Social Services (CSS) which will not certify same-sex couples, even those who are legally married to each other, as foster parents. Once Philadelphia became aware of the CSS policy, through investigative reporting, the city eventually suspended foster care referrals to CSS in accordance with the city's nondiscrimination policy which includes sexual orientation. The plaintiffs, including individuals about whom the Third Circuit had standing doubts, sued for a preliminary injunction, which the district judge denied after a three day hearing. On appeal, the Third Circuit agreed that the plaintiffs had not demonstrated a likelihood of success on their First Amendment claims under the Free Exercise Clause, as well as the Establishment Clause and the Speech Clause.
Writing for the panel, Judge Thomas Ambro wrote that the Free Exercise Clause does not relieve one from compliance with a neutral law of general applicability, which the court found the nondiscrimination law to be. Unlike Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission and Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993), there was no hostility towards religion evinced in the case. As the court stated:
CSS’s theme devolves to this: the City is targeting CSS because it discriminates against same-sex couples; CSS is discriminating against same-sex couples because of its religious beliefs; therefore the City is targeting CSS for its religious beliefs. But this syllogism is as flawed as it is dangerous. It runs directly counter to the premise of [Employment Division v. ] Smith that, while religious belief is always protected, religiously motivated conduct enjoys no special protections or exemption from general, neutrally applied legal requirements. That CSS’s conduct springs from sincerely held and strongly felt religious beliefs does not imply that the City’s desire to regulate that conduct springs from antipathy to those beliefs. If all comment on religiously motivated conduct by those enforcing neutral, generally applicable laws against discrimination is construed as ill will against the religious belief itself, then Smith is a dead letter, and the nation’s civil rights laws might be as well. As the Intervenors rightly state, the “fact that CSS’s non- compliance with the City’s non-discrimination requirements is based on its religious beliefs does not mean that the City’s enforcement of its requirements constitutes anti-religious hostility.”
On the Establishment Clause, Judge Ambro briefly concluded that there was no evidence that Philadelphia was attempting to impose its preferred version of Catholic teaching on CSS.
And in a similarly brief discussion of the free speech claim, Judge Ambro's opinion found there was no viable compelled speech claim or retaliation claim.
Finally, the Third Circuit opinion considered whether there was a possibly successful claim under Pennsylvania's RFRA statute and found that there was little chance of success on the merits, even given the higher standard of review.
This litigation has attracted much interest, with intervenors and amici, and the plaintiffs filed an emergency application to the Supreme Court for an injunction pending appeal or an immediate grant of certiorari in 2018, which was denied. Another certiorari petition is almost sure to follow the Third Circuit's decision.
April 23, 2019 in Establishment Clause, Family, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Gender, Opinion Analysis, Religion, Sexual Orientation, Sexuality, Speech, Supreme Court (US) | Permalink | Comments (0)
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.
Tuesday, April 16, 2019
The United States Supreme Court heard oral arguments in North Carolina Dept of Revenue v. Kimberley Rice Kaestner 1992 Family Trust posing the question of whether a state's taxation of a trust based solely on the residence of a beneficiary violates due process.
Professors Bridget Crawford (pictured left) and Michelle Simon (pictured below) in their article in UCLA Law Review Discourse compellingly argue that the Court should hold that a state has no constitutional authority to impose a tax on trust income where the trust’s only connection with the forum state is the residence of a contingent beneficiary. In The Supreme Court, Due Process and State Income Taxation of Trusts they contend 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."
Crawford and Simon also provide a useful primer on the law and facts relevant to the issues of due process. They state that for some "lawyers and lucky individuals," a "list of common verbal triads includes the words 'grantor, trustee, and beneficiary,'" which will be just as familiar as other words that "seem to roll off the tongue naturally in threes" such as tic-tac-toe, snap, crackle, pop; Larry, Curly, and Moe; and peas porridge hot. However, if one is not one of those "lucky individuals" and perhaps is even a bit shy of trusts and taxation, the article proves itself a patient and trustworthy guide.
The article's well-earned conclusion states:
Justice Harry Blackmun famously said that he knew he was “in the doghouse” with the Chief Justice if he received an assignment to write the opinion in a tax case. But Kaestner Trust is no dog of a case. It broadly implicates basic principles of due process. There are many reasons to allow each state to implement its own tax (and strong arguments in favor of a more uniform approach), but it would be fundamentally unfair to require a trust to pay income tax to a jurisdiction solely on the basis of the residence of a discretionary trust beneficiary who does not actually receive any trust distributions. Once the beneficiary receives trust income, it is reasonable in all respects to subject that income to taxation. The Court’s decision in Kaestner Trust will have lasting impact on the future of due process jurisprudence.
Ultimately, trusts are creatures of legal fiction. They exist because the law tolerates the idea that it is possible to split legal and equitable title to property. Trusts are not the inevitable consequence of some right to control property; their existence reflects the acceptance of the story of split ownership. In the case of trust law, fiction is already strange enough. State income taxation should hew close enough to material reality that a trust is taxed only when the trust has some meaningful connection with the jurisdiction. An accident of fate—such as where a wholly discretionary beneficiary decides to live—should not trigger income taxation.
A must-read for ConLawProfs seeking to understand Kaestner Trust and for whichever Justice (and clerks) assigned to write the opinion.
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.
Monday, March 18, 2019
The United States Supreme Court granted the petition for certiorari in Ramos v. Louisiana posing the question whether the right to a unanimous jury verdict is incorporated as against the states through the Fourteenth Amendment.
Recall that in McDonald v. City of Chicago (2010), in which 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), Justice Alito writing for the plurality discussed the state of incorporation doctrine in some detail. In footnote 12, Alito's opinion discussed the provisions of the amendments in the Bill of Rights that had been incorporated, providing citations, and in footnote 13, the opinion discussed the provisions that had not yet been incorporated, other than the Second Amendment then under consideration:
- the Third Amendment’s protection against quartering of soldiers;
- the Fifth Amendment’s grand jury indictment requirement;
- the Seventh Amendment right to a jury trial in civil cases; and
- the Eighth Amendment’s prohibition on excessive fines.
Just this term in February, the Court whittled this small list down to three, deciding unanimously in Timbs v. Indiana that the Eighth Amendment's prohibition on excessive fines is incorporated through the Fourteenth Amendment, following an oral argument in which some Justices expressed wonderment that the issue of incorporation was even arguable in 2018.
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); see also Johnson v. Louisiana, 406 U. S. 356 (1972) (holding that the Due Process Clause does not require unanimous jury verdicts in state criminal trials). But that ruling was the result of an unusual division among the Justices, not an endorsement of the two-track approach to incorporation. In Apodaca, eight Justices agreed that the Sixth Amendment applies identically to both theFederal Government and the States. See Johnson, supra, at 395 (Brennan, J., dissenting). Nonetheless, among those eight, four Justices took the view that the Sixth Amendment does not require unanimous jury verdicts in either federal or state criminal trials, Apodaca, 406 U. S., at 406 (plurality opinion), and four other Justices took the view that the Sixth Amendment requires unanimous jury verdicts in federal and state criminal trials, id., at 414–415 (Stewart, J., dissenting); Johnson, supra, at 381–382 (Douglas, J., dissenting). Justice Powell’s concurrence in the judgment broke the tie, and he concluded that the Sixth Amendment requires juror unanimity in federal, but not state, cases. Apodaca, therefore, does not undermine the well-established rule that incorporated Bill of Rights protections apply identically to the States and the Federal Government. See Johnson, supra, at 395–396 (Brennan, J., dissenting) (footnote omitted) (“In any event, the affirmance must not obscure that the majority of the Court remains of the view that, as in the case of every specific of the Bill of Rights that extends to the States, the Sixth Amendment’s jury trialguarantee, however it is to be construed, has identical application against both State and Federal governments.")
Thus, in Ramos v. Louisiana, the Court is set to address this "exception to the general rule" and decide whether jury unanimity is required in a criminal case in state court to the same extent as in federal court pursuant to the Fourteenth Amendment.
March 18, 2019 in Criminal Procedure, Due Process (Substantive), Federalism, Fourteenth Amendment, Fundamental Rights, Privileges or Immunities: Fourteenth Amendment , Recent Cases, Supreme Court (US) | Permalink | Comments (0)
Tuesday, March 12, 2019
In its en banc opinion in Planned Parenthood of Greater Ohio v. Hodges, the Sixth Circuit reversed a permanent injunction by the district judge against Ohio Rev. Code §3701.034 which bars any state funding — including government-sponsored health and education programs that target sexually transmitted diseases, breast cancer and cervical cancer, teen pregnancy, infant mortality, and sexual violence — to any organization that performs or promotes abortion.
In less than 12 pages, Judge Jeffrey Sutton, writing for the 11 judge majority, rejected the claim that the Ohio statute was an unconstitutional condition on the due process right encompassing the right to abortion by stating that Planned Parenthood had no substantive due process right to provide abortions: "The Supreme Court has never identified a freestanding right to perform abortions." Moreover, Sutton's opinion rejected the argument that
the Ohio law will deprive Ohio women of their constitutional right of access to abortion services without undue burden, because it will lead Planned Parenthood and perhaps other abortion providers to stop providing them. Maybe; maybe not. More to the point, the conclusion is premature and unsupported by the record.
In this way, the majority distinguished the United States Supreme Court's most recent abortion case, Whole Woman's Health v. Hellerstedt (2016), albeit briefly (with one "cf." citation and one "see" citation).
In the dissenting opinion, Judge Helene White writing for 6 judges, criticizes the majority for not mentioning "much less" applying,
the test the Supreme Court has recently articulated governing the unconstitutional-conditions doctrine. That doctrine prohibits the government from conditioning the grant of funds under a government program if: (1) the challenged conditions would violate the Constitution if they were instead enacted as a direct regulation; and (2) the conditions affect protected conduct outside the scope of the government program.
citing Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (2013) [the "prostitution pledge" case].
The dissent concludes that because "(1) the funding conditions in this case would result in an undue burden on a woman’s right to obtain nontherapeutic abortions if imposed directly, and (2) the six federal programs have nothing to do with Plaintiffs’ performing abortions, advocating for abortion rights, or affiliating with organizations that engage in such activity, all on their own 'time and dime,' " the Ohio statute should be unconstitutional.
The dissenting opinion also discusses the First Amendment argument, which the district court judge had credited but which the majority discounted because to prevail Ohio need only show that one limitation satisfied the Constitution and because "the conduct component of the Ohio law does not impose an unconstitutional condition in violation of due process, we need not reach the free speech claim." For the dissent, the free speech claim was not mooted and should be successful as in Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (2013).
March 12, 2019 in Abortion, Courts and Judging, Due Process (Substantive), First Amendment, Fourteenth Amendment, Gender, Opinion Analysis, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0)
Wednesday, March 6, 2019
In his 126 page opinion in 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.
Recall that California filed its complaint in March 2018, including a claim that the Constitution requires the “actual Enumeration” of all people in each state every ten years for the sole purpose of apportioning representatives among the states. U.S. Const. art. I, § 2, cl. 3, and amend. XIV, § 2, and that by including the citizenship question on the 2020 Census, Defendants are in violation of the “actual Enumeration” clause of the Constitution because the question will diminish the response rates of non-citizens and their citizen relatives.
Recall also that New York filed a similar complaint, which led to the 277 page decision in New York v. United States Department of Commerce rendered in January 2019, which is now scheduled for oral arguments at the United States Supreme Court on April 23 on the issue of whether the Secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq. An additional issue in the New York litigation — and the issue on which the United States Supreme Court first granted certiorari — involves the refusal of Secretary Ross to be deposed regarding his rationales for adding the citizenship question.
In California v. Ross, Judge Seeborg's opinion concluded that the plaintiff state of California, as well as plaintiff counties and cities in California, and the organization, Black Alliance for Just Immigration, satisfied the requirements for Article III standing. Important to this determination are questions of whether there would be actual injury in fact if a citizenship question were added to the census. Judge Seeborg extensively discussed the affidavits and experts regarding the relationship between the question and people responding to the census, an issue that dovetails with the constitutional Enumeration Clause claim. Judge Seeborg generally concluded there was Article III standing.
The major portion of Judge Seeborg's opinion is devoted to the Administrative Procedure Act. Judge Seeborg's concluded that "one need look no further than the Administrative Record to conclude that the decision to include the citizenship question was arbitrary and capricious, represented an abuse of discretion, and was otherwise not in accordance with law." However, Judge Seeborg's opinion also separately analyzed "extra-record" including
the absence of any effort to test the impact of the addition of the citizenship question to the census, the deviation from the Census Bureau’s usual process for adding new questions to the census, the troubling circumstances under which the DOJ’s request letter was drafted and procured, and Sessions’ order prohibiting DOJ staff from meeting with Census Bureau officials to discuss alternative sources of data that could meet DOJ’s VRA [Voting Rights Act] enforcement needs.
As to the Enumeration Clause, Judge Seeborg wrote:
The analysis of the Enumeration Clause claim similarly involves evidence beyond the four corners of the Administrative Record. As a general proposition, the decision to include a specific question on the census is committed to the discretion of the Commerce Secretary and does not implicate the constitutional command that all persons in each state be counted every ten years. However, if the Secretary’s decision to include a question affirmatively interferes with the actual enumeration and fulfills no reasonable governmental purpose, it may form the basis for a cognizable Enumeration Clause challenge.
Importantly, in finding the Enumeration Clause violation, Judge Seeborg concluded that the inclusion of a citizenship question
will materially harm the accuracy of the census without advancing any legitimate governmental interest. This is no ordinary demographic inquiry. The record reveals that the inclusion of the citizenship question on the upcoming census will have a unique impact on the Census Bureau’s ability to count the public, to the point where the inclusion of this question is akin to a mechanics-of-counting-type issue. In short, Secretary Ross’s decision to add the citizenship question to the 2020 Census undermines the “strong constitutional interest in [the] accuracy” of the census, and does so despite the fact that adding this question does not advance any identifiable government purpose.
[citation omitted]. The remedy for this constitutional violation is not a simple vacatur as it is for the APA injunction, but a nationwide injunction against including the citizenship question on the 2020 Census:
The record in this case has clearly established that including the citizenship question on the 2020 Census is fundamentally counterproductive to the goal of obtaining accurate citizenship data about the public. This question is, however, quite effective at depressing self-response rates among immigrants and noncitizens, and poses a significant risk of distorting the apportionment of congressional representation among the states. In short, the inclusion of the citizenship question on the 2020 Census threatens the very foundation of our democratic system—and does so based on a self-defeating rationale. In light of these findings, Defendants do not get another bite at the apple. Defendants are hereby enjoined from including the citizenship question on the 2020 Census, regardless of any technical compliance with the APA.
Given the nationwide injunction, the fast approaching deadlines for preparation of the 2020 Census, and the already-scheduled April arguments before the United States Supreme Court, the DOJ attorneys will probably act quickly to seek review of this decision.
[image: Los Angeles Census materials, 1920, via]
Wednesday, February 20, 2019
In its unanimous opinion in Timbs v. Indiana, the United States Supreme Court held that the Excessive Fines Clause of the Eighth Amendment is applicable to the states through the Fourteenth Amendment.
Recall that the oral argument heavily pointed toward this outcome. While there was some discussion during oral argument about the relationship between excessive fines and civil in rem forfeiture, the Court's opinion, authored by Justice Ginsburg, rejected Indiana's attempt to "reformulate the question" to one focused on civil asset forfeitures. This was not the argument that the Indiana Supreme Court ruled upon. Moreover, the question of incorporation is not dependent on whether "each and every particular application" of a right passes the incorporation test, using as an example the Court's unanimous opinion in Packingham v. North Carolina (2017), in which the Court did not ask whether the First Amendment's "application to social media websites was fundamental or deeply rooted."
Instead, the Court clearly held that the "safeguard" of the Excessive Fines Clause of the Eighth Amendment is "fundamental to our scheme of ordered liberty" with "deep roots in [our] history and tradition," citing McDonald v. Chicago (2010), the Court's most recent incorporation case. In an opinion of less that ten pages, Ginsburg discusses the Magna Carta, the English Bill of Rights after the Glorious Revolution, the inclusion of the Clause in colonial constitutions and in state constitutions at the time of the Fourteenth Amendment, the misuse of excessive fines in Black Codes, and the current inclusion of the provision in the constitutions of all 50 states.
Justice Thomas, in a concurring opinion longer than the Court's opinion, reiterates the position he articulated in McDonald v. Chicago that it should not be the Due Process Clause of the Fourteenth Amendment that is the vehicle for incorporation but the Privileges or Immunities Clause. Justice Gorsuch writes a separate and very brief concurring opinion acknowledging that the appropriate vehicle for incorporation "may well be" the Fourteenth Amendment's Privileges or Immunities Clause, but "nothing in this case turns on that question."
Given that this is a unanimous opinion, unlike McDonald in which Justice Thomas was necessary to the five Justice majority regarding the incorporation of the Second Amendment, the attempt to resurrect the Privileges or Immunities Clause carries little precedential weight.
Thus, now the only rights enumerated in the Bill of Rights that are not incorporated through the Fourteenth Amendment to the states are: the Third Amendment prohibiting quartering of soldiers, Fifth Amendment right to a grand jury indictment in a criminal case; and the Seventh Amendment right to a jury trial in civil cases.
February 20, 2019 in Due Process (Substantive), Federalism, Fourteenth Amendment, Opinion Analysis, Privileges or Immunities: Fourteenth Amendment , Recent Cases, Supreme Court (US) | Permalink | Comments (0)
Tuesday, February 19, 2019
United States Supreme Court Justice Clarence Thomas, writing a concurring opinion from the denial of certiorari in McKee v. Cosby, has essentially called for an abandonment of First Amendment concerns in the torts of defamation and libel. Interestingly, the lawsuit involves a claim by McGee, who accused actor and comedian Bill Cosby of sexual assault, for defamation based on a letter from Cosby's attorney which allegedly damaged her reputation for truthfulness and honesty. The First Circuit, affirming the district judge, found that by making the public accusation, McKee became a "limited-purpose public figure" under First Amendment doctrine and therefore would have to show not only that the statements were false, but that they were made with actual malice (knowledge of falsity or reckless disregard for the truth).
McKee had sought review of the determination that she was a limited public figure. The Court declined. Justice Thomas's concurring opinion does not address this "fact bound inquiry," but instead argues that the Court should reconsider the doctrinal basis for the lower courts' decisions, including New York Times v. Sullivan (1964), which the opinion extensively discusses. In a nutshell, Thomas argues that New York Times v. Sullivan and its progeny are "policy-driven decisions masquerading as constitutional law": there was no "public figure" doctrine of libel at common law and an originalist understanding of the First Amendment does not extend to state law torts such as defamation and libel. While New York Times v. Sullivan may seem like settled precedent entitled to respect under stare decisis, Justice Thomas notes that the Court "did not begin meddling in this area until 1964, nearly 174 years after the First Amendment was ratified."
What should we make of this thirteen page concurring opinion? It can seem a gratuitous intervention in a case in which it would not make a difference. Or it can seem just another occasion for Justice Thomas to articulate his hallmark originalism. Or it could be an invitation for lower federal judges — and for litigators — to start challenging the First Amendment actual malice standard for defamation and libel more directly. Additionally, this position is quite consonant with the President's statements that libel laws need revision and Trump's reputation as a "libel bully," although perhaps cases such as Summer Zervos lawsuit against Trump — very similar to McKee's against Cosby — Trump would be disserved by a more common law approach. But in the cases in which Mr. Trump were the plaintiff, an absence of the burden of having to prove "actual malice" would certainly work to his benefit.
Wednesday, February 13, 2019
On February 25, the Court will hear 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.
In the Second Circuit's divided opinion in Halleck v. Manhattan Community Access Corporation (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. 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.
But before reaching that heart are sticky issues involving whether the First Amendment applies at all given the complex statutory and regulatory schemes governing "public access" television. Additionally, the conflation of the state action threshold for all constitutional claims and the doctrine of "public forum" under the First Amendment can make the analysis murky. As a further complication, the most applicable precedent is Denver Area Educational Telecommunications Consortium, Inc. v. FCC (1996) which the majority opinion in Halleck by Judge Jon Newman accurately describes as "a case that generated six opinions spanning 112 pages of the United States Reports," in which "five Justices expressed differing views on whether public access channels were public forums." Judge Newman acknowledged that there was not only disagreement among the Justices, there was disagreement among the Circuits and District Courts, but ultimately declared:
With all respect to those courts that have expressed a view different from ours, we agree with the view expressed by Justices Kennedy and Ginsburg in Denver Area. Public access channels, authorized by Congress to be “the video equivalent of the speaker’s soapbox” and operating under the municipal authority given to MNN in this case, are public forums, and, in the circumstances of this case, MNN and its employees are subject to First Amendment restrictions.
Writing a dissent on this issue in the Second Circuit, Judge Dennis Jacobs essentially criticized the conflation of the state action and First Amendment public forum issues, arguing that the majority opinion
private property leased by the Government for public expressive activity creates a public forum; a facility deemed to be a public forum is usually operated by Government; action taken at a facility determined to be a public forum usually is state action; the First Amendment applies to a person acting at such a facility if the person has a sufficient connection to Government authority to constitute state action; and here, the Borough President’s designation of MNN to administer the public‐access station is sufficient.
[citations to majority opinion omitted]. Judge Jacobs would have applied state action doctrine under the Second Circuit requiring that a private entity can only be deemed a state actor if there is compulsion by the state, or joint action with the state (an entwinement analysis), or when the private entity has been delegated a public function by the state. In his concurrence, Judge Lohier argued that there was state action under the public function analysis, but for Judge Jacob, the operation of an "entertainment facility" was not a traditional public function: "And it is fortunate for our liberty that it is not at all a near‐exclusive function of the state to provide the forums for public expression, politics, information, or entertainment."
Looking forward to the oral argument at the Supreme Court, it will be worth noticing whether the Justices focus on public forum doctrine under the First Amendment or on state action doctrine or whether the problematical convergence of the two doctrines continues.
Friday, February 1, 2019
In its en banc opinion in American Beverage Association v. City and County of San Francisco the Ninth Circuit unanimously found that the San Francisco ordinance requiring a warning about the health effects of sugary drinks likely violated the First Amendment and should be enjoined.
The ordinance provided that advertisements for Sugar-Sweetened Beverages (SSB) include a warning:
WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco.
It further defined advertisements and importantly provided detailed instructions regarding the form, content, and placement of the warning on SSB Ads, including a requirement that the warning occupy at least 20% of the advertisement and be set off with a rectangular border.
Recall that the Ninth Circuit panel had similarly found that the SF ordinance most likely violated the First Amendment, reversing the District Judge's failure to grant a preliminary injunction.
The problem of the level of scrutiny to apply when the government compels speech in a commercial setting is one that has been reoccurring. In short, the choice of standards is between the commercial speech test of Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York (1980) or the more lenient test for disclosure of Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio (1985). Judge Graber noted that the Ninth Circuit had previously decided that the more lenient test of Zauderer applied in CTIA - The Wireless Ass'n v. City of Berkeley. However, a closely divided United States Supreme Court in National Institute of Family & Life Advocates (NIFLA) v. Becerra (2018), "applied the Zauderer test without deciding whether that test, in fact, applied" and found that a California statute mandating disclosures by crisis-pregnancy centers violated the First Amendment. But, according to Judge Graber's opinion, while NIFLA required the Ninth Circuit to reexamine the approach to challenges to compelled commercial speech, "nothing in NIFLA suggests that CTIA was wrongly decided," especially given the concern with health and safety warnings as permissible.
Under Zauderer, the usual factors require that the compelled disclosure be factual, non-controversial, and not unjustified or unduly burdensome, and then application of the lenient standard of a substantial government interest to which the mandated disclosure is reasonably related. Here, Judge Graber's opinion for the court concluded that the warning was unduly burdensome given the mandated size of the warning as 20% of the image.
While Judge Graber's opinion for the en banc court is relatively succinct, several other judges wrote opinions to disagree with the reasoning but not the result. Judge Sandra Ikuta, who authored the panel opinion, which was issued before the Supreme Court's opinion in NIFLA, argued that NIFLA provided a (new) framework mandating that the compelled speech regulation be considered a First Amendment content-based regulation subject to heightened scrutiny unless a Zauderer exception applies. In another concurring opinion, Judge Morgan Christen, joined by Chief Judge Sidney Thomas, agreed with the majority that Zauderer applied, but concluded that the warning did not survive the "purely factual" and "noncontroversial" factors of Zauderer. A third concurring opinion, authored by Judge Jacqueline Nguyen, objected to the application of Zauderer outside the context of false or misleading speech and argued that the more intermediate scrutiny test of Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York (1980) should apply.
These varying opinions suggest that the issue of the First Amendment consequences of states requiring warnings and thus arguably infringing commercial speech is far from resolved, although the agreement on the result here may mean that this is an unlikely case for Supreme Court review.
Tuesday, January 22, 2019
The United States Supreme Court has granted certiorari 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 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. On the Second Amendment challenge, the opinion for the panel by Judge Gerald Lynch tracked the analytic structure articulated by the Second Circuit in New York State Rifle & Pistol Ass'n v. Cuomo, decided in 2015. Assuming that the Second Amendment applied, the court 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.' " Thus, this grant of certiorari has the potential to determine the level of scrutiny to be applied to gun regulations, a question left open by the Court's decisions in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010).
In addition to the Second Amendment issue, the petition for certiorari also challenges the regulation on the basis of the dormant commerce clause and the "right to travel." On these challenges, the Second Circuit noted that the plaintiffs did not convincingly allege there were problems implicating the crossing of state lines.
Friday, January 4, 2019
SCOTUS Grants Certiorari on First Amendment Challenge to Trademark Rejection of Immoral or Scandalous Mark
The Court granted certiorari in Iancu v. Brunetti regarding the constitutionality of Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), which prohibits the federal registration of “immoral” or “scandalous” trademarks. The Federal Circuit Court of Appeals held that the section violates the First Amendment. At issue was a rejection to a trademark to Brunetti's apparel line named "fuct." The Federal Circuit Court concluded with an interesting analogy to copyright protection and the First Amendment:
The trademark at issue is vulgar. And the government included an appendix in its briefing to the court which contains numerous highly offensive, even shocking, images and words for which individuals have sought trademark registration. Many of the marks rejected under §2(a)’s bar on immoral or scandalous marks, including the marks discussed in this opinion, are lewd, crass, or even disturbing. We find the use of such marks in commerce discomforting, and are not eager to see a proliferation of such marks in the marketplace. There are, however, a cadre of similarly offensive images and words that have secured copyright registration by the government. There are countless songs with vulgar lyrics, blasphemous images, scandalous books and paintings, all of which are protected under federal law. No doubt many works registered with the Copyright Office offend a substantial composite of the general public. There are words and images that we do not wish to be confronted with, not as art, nor in the marketplace. The First Amendment, however, protects private expression, even private expression which is offensive to a substantial composite of the general public. The government has offered no substantial government interest for policing offensive speech in the context of a registration program such as the one at issue in this case.
We hold that the bar in § 2(a) against immoral or scandalous marks is unconstitutional because it violates the First Amendment.
The Federal Circuit relied heavily on Matal v. Tam (2017) involving the band "the Slants" in which the United States Supreme Court decided that the "disparaging" provision of the same section of the Lanham Act violated the First Amendment. Recall that the Federal Circuit had also decided Matal v. Tam (f/k/a In Re Simon Shiao Tam) en banc, and the litigation in Brunetti has always been somewhat in the shadow of Tam. The Federal Circuit's opinion, rendered more than a year ago, contended that while the "immoral” or “scandalous” provisions might well be viewpoint restrictions as in Tam, they were certainly content discrimination under the First Amendment.
The concurring judge of the Federal Circuit panel in Brunetti argued that the section was amenable to a narrowing and saving construction limited to obscenity (although he agreed that because the name of Brunetti's apparel line was not obscene the trademark was unconstitutionally denied registration). The United State Supreme Court's purpose in granting certiorari is not immediately obvious, but the Under Secretary of Commerce's petition for certiorari picked up the concurring opinion's contention and argued that the Court should not declare the provisions facially unconstitutional.
[image: "news headline pullover hoodie" via]
The Court has ordered oral arguments set for March on the merits of two cases involving the recurring issue of the constitutionality of partisan gerrymandering, Rucho v. Common Cause and Lamone v. Benisek.
Both cases have extensive histories including previous appearances before the Supreme Court.
From North Carolina is Rucho v. Common Cause. In January 2018, a three-judge Court's extensive opinion found North Carolina's 2016 redistricting plan was unconstitutional partisan gerrymandering under the Equal Protection Clause, the First Amendment, and Article I §§ 2, 4. The United States Supreme Court stayed the judgment shortly thereafter, and then vacated the opinion in light of Gill v. Whitford (2018). In July 2018, the three judge court entered an even more extensive opinion - 300 pages - finding that standing regarding an equal protection challenge was satisfied under the Gill standard. The Court also reiterated its conclusions of the unconstitutionality of partisan gerrymandering, and enjoined the State from conducting any elections using the 2016 Plan in any election after the November 6, 2018, election.
From Maryland is Lamone v. Benisek. In June 2018, the United States Supreme Court issued a brief per curiam opinion declining to disturb the three judge court's decision not to grant to a preliminary injunction, at the same time the Court rendered its Gill v. Whitford opinion, and essentially reserved the issue of partisan gerrymandering for another day.
It seems that day has come — or will soon — but whether or not the Court will actually grapple with the constitutionality of the problem of partisan gerrymandering is as yet uncertain.
[image: Anti-gerrymandering event at Supreme Court, October 2017, via]
Wednesday, January 2, 2019
For his 2018 Year-End Report on the Federal Judiciary, the sexual harassment concerns which surfaced at the end of Chief Justice Roberts 2017 report (which we discussed here) occupied center stage. Opening with an anecdote about the importance of law clerks, the Chief Justice discussed the contribution that the Federal Judiciary Workplace Conduct Working Group has made, linking to its more than 140 page report issued in June. The Chief Justice noted that the report determined that "inappropriate workplace conduct is not pervasive within the Judiciary, but it also is not limited to a few isolated instances involving law clerks" and that "misconduct, when it does occur, is more likely to take the form of incivility or disrespect than overt sexual harassment" and frequently goes unreported. The Chief Justice noted that committees have proposed changes to various codes of conduct and the employment dispute resolution plan.
Interestingly, the Chief Justice does not note that these codes exclude the United States Supreme Court itself, which is of continuing interest, and which the Chief Justice has alluded to in the past, as we last discussed here. Although he writes that "The Supreme Court will supplement its existing internal initiatives and experience of the other federal courts."
The Chief Justice again thanked judicial staff for working through numerous natural disasters, but again did not address the declining diversity of the federal bench, a lack we mentioned last year and which has seemingly only increased.
image: John Roberts being sworn-in as the 17th Chief Justice of the United States by Supreme Court Associate Justice John Paul Stevens, 2005, via.
Friday, December 28, 2018
In its opinion in Alliance for Open Society International v. United States Agency for International Development, the Second Circuit split in its application of the United States Supreme Court's 2013 opinion in the same case.
Recall that United States Agency for International Development v. Alliance for Open Society International involved a First Amendment challenge to a provision of a federal funding statute requiring some (but not other) organizations to have an explicit policy opposing sex work. In the relative brief opinion by Chief Justice Roberts, the Court held the spending conditions of requiring an "anti-prostitution pledge" were unconstitutional because they were not limits of the government spending program itself that specified the activities that Congress wants to subsidize, but were "conditions that seek to leverage funding to regulate speech outside the contours of the program itself."
The subsequent litigation revolved around the reach of this holding. For the district judge and the majority of the Second Circuit panel, the holding included the plaintiff organizations and their "foreign affiliates." For dissenting Judge Chester Straub, the "foreign affiliates" possess "no constitutional rights" and the United States government was free to deny them funding for failure to comply with an otherwise unconstitutional condition. For Judge Straub, the majority misconstrued the United States Supreme Court's opinion, extending it to some vague and ill-defined set of "closely aligned" ("whatever that may mean") foreign entities. But the majority opinion, authored by Judge Barrington Parker, rejoined that it is not the First Amendment rights of the foreign entities that are violated, but the domestic organization's speech that is compelled. For the majority, if the government — and by extension, the dissenting Judge — "is right, then Chief Justice Roberts was wrong."
In an editorial today, senior editorial writer of the Los Angeles Times Michael McGough argues that "Kavanaugh (and other justices) shouldn't be exempt from an ethics code." McGough's piece is prompted by the December 18 Order (from the Tenth Circuit as referred by Chief Justice Roberts) dismissing the 83 complaints against Kavanaugh which arose from his confirmation hearing and from his previous judicial conduct because Kavanaugh was now a Supreme Court Justice and "Congress has not extended the Judicial Conduct and Disability Act to Supreme Court Justices." As McGough notes, however, Chief Justice Roberts has implied "in a 2011 statement that formally applying the code to the Supreme Court might be unconstitutional because the code was designed for courts created by Congress — whereas the Supreme Court was created by the Constitution." This refers the 2011 year end report by Chief Justice Roberts in which he stated:
The Code of Conduct, by its express terms, applies only to lower federal court judges. That reflects a fundamental difference between the Supreme Court and the other federal courts. Article III of the Constitution creates only one court, the Supreme Court of the United States, but it empowers Congress to establish additional lower federal courts that the Framers knew the country would need. Congress instituted the Judicial Conference for the benefit of the courts it had created. Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body.
The Chief Justice soon thereafter explicitly rejected a call from some members of Congress to consider making the Code applicable to the Justices. As we noted at the time, these concerns arose from Justice Alito attending political events and swirling around Justice Thomas regarding nondisclosure of his wife's finances, his wife's political activities, and his own financial actions.
Given the renewed concerns regarding the impartiality of the Court as evinced by McGough's editorial among many other pieces, it might be time for Chief Justice Roberts to reconsider his position. And it will be interesting to see if Roberts addresses ethics in his 2018 year end report.