Constitutional Law Prof Blog

Two Questions in the Aftermath of DOMA and Prop 8 Decisions

In the wake of the Court's decisions in United States v. Windsor, declaring section 3 of DOMA unconstitutional, and Perry v. Hollingsworth, holding that the "proponents" of Proposition 8 lacked standing to appeal a federal judge's declaration of Prop 8's unconstitutionality, many questions remain. 

Here are two.

The first question is the status of Proposition 8.  Recall that the federal district judge held Prop 8 made a sexual orientation classification that does not satisfy the rational basis standard and thus violates the Equal Protection Clause.   The district judge's opinion enjoined the enforcement of Proposition 8, an injunction which he then stayed.   Chief Judge Roberts' majority opinion in Perry describes district judge Walker's order as being broad: 

"After a 12-day bench trial, the District Court declared Proposition 8 uncon- stitutional, permanently enjoining the California officials named as defendants from enforcing the law, and “direct- ing the official defendants that all persons under their control or supervision” shall not enforce it. Perry v. Schwarzenegger, 704 F.Supp. 2d 921, 1004 (ND Cal. 2010).

The ACLU and others are advising that the district judge's order renders Prop 8 unconstitutional as to all of California.  The  docket entry in the Ninth Circuit simply states:

Received copy of Supreme Court opinion dated 06/26/2013. The judgment or mandate of this Court will not issue for at least twenty-five days pursuant to Rule 45. Should a petition for rehearing be filed timely, the judgment or mandate will be further stayed pending this Court's action on the petition for rehearing. Supreme Court No: 12-144. [8682306] [10-16696, 11-16577].

One of the best discussions of this issue is by ConLawProf Marty Lederman over at SCOTUSblog. Lederman asks  "even if Judge Walker’s injunction should have been limited to the protection of the plaintiffs before him—so what?  That injunction nevertheless governs the case, and it will be operative, regardless of whether it should have been more tailored."    He concludes that Justice Kennedy, dissenting in Perry will be proven correct that “the Court’s opinion today means that a single district court can make a decision with far-reaching effects that cannot be reviewed.”

The second question is one that is being voiced less, but is worth considering: Why are there no opinions by Justices Sotomayor, Ginsburg, Kagan, and Breyer?  Justice Ginsburg, who made headlines with her "skim milk" comment during oral argument in Windsor, could have effectively written a concurring opinion that might have counter-balanced some of the arguments in Alito's separate dissenting opinion regarding the function of marriage. ConLawProf David Cohen over at FeministLawProfessors ConLawProf  argues that the lack of opinions matters:

By remaining silent, not only are the liberal Justices depriving us from learning their particular views, but they are depriving future litigants the opportunity to use their strong reasoning to further their cause.  After all, the logic in today’s concurring opinions often becomes the logic in tomorrow’s majority opinion.

It might be added that perhaps one of these Justices could have provided a rigorous equal protection analysis.

There are certainly more questions raised by Windsor and Perry, but these two are central.

RR
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Questions Raised About Justice Alito's Demeanor

Two different sources have raised serious questions about Justice Samuel Alito's judicial demeanor based on his performance on the bench during the announcements of opinions.

ConLawProf Garrett Epps over at The Atlantic calls Alito's performance a "mini-tantrum," that although silent (and thus not recorded in transcript or audio) was "clear to all with eyes, and brought gasps from more than one person in the audience." 

And in the Washington Post, Dana Millbanks writes that "Alito visibly mocked his colleague" and "shook his head from side to side in disagreement, rolled his eyes and looked at the ceiling."  

Alito's actions were prompted by Justice Ginsburg's statements regarding her dissents in two employment cases, Vance v. Ball State University, which Alito had authored and rendered from the bench, and University of Texas Southwestern Medical Center v. Nassar.

Both Epps and Millbank not only note Alito's disrepect for a colleague, but point out the gendered nature of his actions.  Millbank goes further and notes that he had earlier witnessed Alito's demonstration of "disdain for Elena Kagan and Sonia Sotomayor, the two other women on the court."

Epps compares Alito's actions to a highschooler:  Alito looked like the character in the movie "Fast Times at Ridgemont High, signaling to the homies his contempt for Ray Walston as the bothersome history teacher, Mr. Hand."  Millbank places Alito below the high school range, contended that Alito "frequently supplements words with middle-school gestures."

Perhaps the Chief Justice needs to have a conversation with Associate Justice Alito?  He might be guided by the experience of many law professors who routinely teach professionalism, including not rolling one's eyes at statements by colleagues.

RR

UPDATES:

The Rudest Justice in Slate (June 27);

Splenetic Justice: Justice Samuel Alito's Role on the Roberts Court in The Nation (June 28); 

Ignoring the facts in a character attack of Justice Alito, Letter in Washington Post by Former Clerks (June 28);

Alito's Demeanor Inspires Push to Make Court Follow Code in National Law Journal (July 1) (paywall).

Daily Read: Spindelman on Carpenter on Lawrence

Integral to the same-sex marriage cases of Perry and Windsor argued before the Court last month is the 2003 case of Lawrence v. Texas.  Although the Court's opinion specifically excluded marriage in its caveat paragraph, the declaration that sodomy laws were unconstitutional under the Due Process Clause is generally considered a linchpin of recognizing any constitutional right to same-sex marriage under the Equal Protection Clause. 

Professor Marc Spindelman (pictured) reviews Professor Dale Carpenter's book Flagrant Conduct: The Story of Lawrence v. Texas in a trenchant essay entitled Tyrone Gardner's Lawrence v. Texas appearing in Michigan Law Review.  Spindelman acknowledges the contribution of the book even as he uses it as a springboard to reach different conclusions about the potential of the case to achieve equality or civil rights.  Spindelman focuses on Tyrone Gardner, who along with John Geddes Lawrence was arrested for sodomy, as a lens for exploring the reach of Lawrence v. Texas.  

Refering to Gardner, Spindeleman asks, "How could Lawrence v. Texas, this great victory for lesbian and gay civil rights, have done and meant so very little to the life of one of the two men most central to it?"  Spindelman's answers explore the status-quo bias and moral conservatism of Lawrence, connecting the case to affirmative action decisions as well as to the "Obamacare" case, Nat’l Fed’n of Indep. Bus. v. Sebelius.

Every ConLawProf teaching Lawrence v. Texas would do well to read Spindelman's essay. 

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Fourth Circuit Rejects First Amendment Claims from "Fortune Teller"

In its opinion in Moore-King v. County of Chesterfield, a panel of the Fourth Circuit has upheld the constitutionality of ordinances specifically directed at those defined as "fortune tellers."  The fortune tellers must have a business license, like all other businesses, but must also:

• have a special permit from the Chief of Police, the application for which must include biographical information, fingerprints, criminal history, and an authorization for a background check;
• pay a license tax of $300;
• be located within particular business districts, excluding certain other business districts.

"Justice" Tarot Card circa 15th Century

As to the free speech claim, the Fourth Circuit disagreed with the district judge's finding that the Moore-King's practice was inherently deceptive and thus categorically excluded from First Amendment protection.  In support, the panel interestingly replied upon United States v. Alvarez (the "Stolen Valor case). Yet the panel then struggled with the appropriate First Amendment doctrine that should be applied - - - a not unusual situation in First Amendment litigation - - - rejecting the commercial speech doctrine and time, place or manner analysis and settling upon what it named the "professional speech doctrine." 

As the government complies with the professional speech doctrine by enacting and implementing a generally applicable regulatory regime, the fact that such a scheme may vary from profession to profession recedes in constitutional significance. Just as the internal requirements of a profession may differ, so may the government’s regulatory response based on the nature of the activity and the need to protect the public. [citation omitted] With respect to an occupation such as fortune telling where no accrediting institution like a board of law examiners or medical practitioners exists, a legislature may reasonably determine that additional regulatory requirements are necessary.

The panel then engaged in little analysis, except to say that this did not mean that the government had "carte blanche" but that it held that the government "regulation of Moore-King's activity falls squarely within the scope of that doctrine."

As to Free Exercise, the panel rejected Moore-King's qualifications to assert the claim:

Moore-King’s beliefs more closely resemble personal and philosophical choices consistent with a way of life, not deep religious convictions shared by an organized group deserving of constitutional solicitude.

In addition to the First Amendment claims, Moore-King had also challenged the regulatory scheme on the basis of Equal Protection, although this argument was largely predicated upon her First Amendment interests as the fundamental rights that would trigger strict scrutiny.  Again, the Fourth Circuit affirmed the district judge's grant of summary judgment in favor of the government.

This is a case ripe for critique and would make a terrific subject for student scholarship.

RR
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Daily Read: Andrew Cohen in The Atlantic on Shelby and the Voting Rights Act

Entitled "After 50 Years, the Voting Rights Act's Biggest Threat: The Supreme Court," Andrew Cohen's extensive article just published in The Atlantic is a must-read for anyone following the Court's pending oral argument (on Wednesday, February 27) in Shelby County v. Holder.  

Recall that the Court's grant of certiorari last November 9 put the Voting Rights Act (VRA) "in the crosshairs" of the Court - - - as we said at the time - - - noting that the VRA's constitutionality had been seriously questioned but ultimately evaded by the Court's 2009 decision in Northwest Utilities District of Austin v. Holder .  The DC Circuit had upheld the constitutionality of the preclearance provisions of the VRA.

 

"President Lyndon B. Johnson signs the Voting Rights Act of 1965 while Martin Luther King and others look on"

Andrew Cohen's article provides a terrific contextualize of the politics, including the Court's politics, that surround the constitutional controversy.  Cohen writes that "racial polarization has intensified during the Obama Administration," with "'explicit anti-black attitudes'" around the country, "especially among Republicans," many of whom "sponsored and enacted some of the voter suppression laws of the 2012 cycle."  Cohen also argues that the Court essentially "invited many of the state voter suppression efforts of the past three years" by its decisions, including not only Northwest Utilities District of Austin v. Holder, but also the 2008 decision in Crawford v. Marion County, upholding a voter identification statute.  Cohen contends: "Having created the factual and legal conditions to undermine the federal law, the Court now is poised to say that it is weakened beyond repair."

Cohen concludes that the stakes in Shelby are very high:

If the Court strikes down Section 5 of the Voting Rights Act, this year especially, given the record of the past three years, the justices who do so will reveal a disconcerting level of disconnect from the realities of modern American politics as they were expressed in the near-unanimous renewal of the Act in 2006. And the partisan ruling they would issue in this circumstance would be even more brazenly ideological and untethered from precedent than the Citizens United ruling issued in January 2010.

Cohen's timely, provocative, and well-argued article is definitely worth a read and would be a great suggested reading for law students considering the issue.

RR
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Daily Read: Sean Wilson's The Flexible Constitution

Sean Wilson (pictured) provides a compelling view of constitutional interpretation in his new book, The Flexible Constitution.  His work is often Dworkian in tone, although Wilson distinguishes himself from Dworkin's interest in moral reasoning.  Instead, Wilson writes that constitutional law problems are what "Wittgenstein described as aesthetical judgments - i.e. judgments that a connosseur would make" and Wilson stresses culture much more than morality.  (p. 83).

 

Worth a special read is the book's Appendix, "The Philosophical Investigation," which provides a Wittigensteinian interrogation of the meaning of "the original meaning of the Constitution."  This would be a terrific exercise for a Constitutional Interpretation or Jurisprudence seminar.

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Daily Read: Academic Freedom and Controversial Programs

ConLawProfs often appear on controversial panels and law schools often present controversial programming.  Are there limits?

Policitical Science Professor (and Chair of the Department) Paisley Currah (pictured) of Brooklyn College has been embroiled in a "firestorm" of late.  As Professor Currah writes in The Chronicle of Higher Education:

Last month the political-science department at Brooklyn College, which I chair, was asked to either cosponsor or endorse a panel discussion on the boycott, divestment, and sanctions (BDS) movement organized by a student group, Students for Justice in Palestine. We decided to cosponsor the event, which is to take place on Thursday and to feature the philosopher Judith Butler and the Palestinian-rights activist Omar Barghouti. The BDS movement advocates using nonviolent means to pressure Israel to withdraw from Palestinian territories. Our decision landed us in a firestorm.

The flames of the firestorm have been fanned by controversial LawProf Alan Dershowitz as well as a letter signed NYC officials with (somewhat) veiled threats of reducing government funding.  The NYT weighed in on the matter, comparing it to Chuck Hagel's nomination for secretary of defense, and the Center for Constitutional Rights has also highlighted the controversy. As Professor Currah concludes:

The damage wrought by this controversy, however, could be long-lasting, and the lesson for other colleges is, I think, instructive. Many people have written letters and signed petitions in support of the principle of academic freedom, and my colleagues and I appreciate those efforts. But what we have learned at Brooklyn College is that supporting the principle of academic freedom is one thing; exercising that freedom by organizing or cosponsoring an event on a highly charged subject, like BDS, is another.

For ConLawProfs teaching First Amendment this semester, the underlying facts could be the basis for an excellent class discussion or exercise.  For everyone involved in the academic enterprise, Currah's piece is an important read.

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Daily Read: The Story Behind The Ninth Circuit's Self-Abortion Opinion

In September, the Ninth Circuit rendered its opinion in McCormack v. Hiedeman regarding the constitutionality of Idaho's "unlawful abortion" statutes that makes it a felony for any woman to undergo an abortion in a manner not authorized by statute.  McCormack had been charged by the prosecutor Mark Hiedeman based on her procurement of abortion "medications" over the internet.  The court held that imposing a criminal sanction on a woman poses an undue burden under Casey, but the decision was restricted to McCormack given the absence of class certification.

But who is Jennie Linn McCormack?  And how common is procuring abortion "medications" via the internet?

Journalist Ada Calhoun's cover article in this month's The New Republic, "The Rise of DIY Abortions," paints a vivid portrait of Jennie Linn McCormack, as well as her attorney ("an avid fan of The Girl with the Dragon Tattoo books. He saw the character of dogged reporter Mikael Blomkvist as a good role model for a lawyer. . . ").  

Calhoun also contextualizes McCormack's situation:

Determining how many American women have had home abortions is exceedingly difficult: The Centers for Disease Control and Prevention does not track illegal abortions. There is no blood test for drugs like Cytotec, and so such an abortion is indistinguishable from a natural miscarriage, even to a doctor. However, the proliferation of online dispensers suggests a rising demand. There are thousands of websites selling Cytotec for as little as $45 to $75 (compared with $300 to $800 for a legal medicated abortion in a clinic). Some claim to offer the harder-to-come-by Mifeprex, but may in fact be peddling Cytotec, or aspirin, or nothing at all. (Possible sources for the drugs include Mexico, where Cytotec is available over the counter, or even the United States, since it’s also prescribed here as an ulcer medication.)

The question of how drugs like Mifeprex and Cytotec are sold and administered is emerging as the next major front in the abortion debate.

Calhoun's article is a must-read for anyone teaching, writing, or thinking about abortion and is sure to be discussed at the many conferences devoted to Roe v. Wade's 40th anniversary, such as this one at the NYC Bar.

RR

ConLaw at AALS: Looking Towards Fisher

If you're at AALS, don't miss today's double panel on affirmative action in education, starting at 2pm:

This joint program will explore issues of equal educational opportunity. The first panel will consider these issues in the context of elementary and secondary education, with emphasis on school financing. The second will deal primarily with the constitutionality of racial affirmative action in higher education admissions. Both panels will consider the implications of the Court’s grant of review in Fisher v. University of Texas, involving an undergraduate affirmative action admissions program.

In 1973, the Court held in Rodriguez that there was no fundamental right to education. Plaintiffs alleged that substantial disparities in educational opportunity violated the Constitution. The Court found the Texas elementary and secondary school finance system constitutional because it was rationally related to advancing local control of education; the Court hesitated to second guess the Texas legislature in light of federalism principles and concerns about judicial competency to deal with school finance systems. 

 The first panel will focus on the legacy of Rodriguez and how the law can address educational disparities in elementary and secondary education. Panelists also will discuss the effect of limits on use of race-conscious programs under the 2007 Parents Involved decision, and will consider the implications of the grant of review in Fisher.In 1978, a deeply fractured Court decided Bakke. Only one paragraph of Justice Powell’s pivotal opinion was joined by four other justices; it held that a “properly devised admissions program” that took race into account could be constitutional. He envisioned a flexible, individualized program that would provide the educational benefits of a diverse class. In 2003, the Court in Grutter held that diversity could be a compelling interest; the Court upheld Michigan Law School’s program, even as it held (in Gratz) that Michigan’s more mechanical undergraduate affirmative action program violated equal protectio

The second panel will consider the legacy of Bakke and discuss how the Court should decide Fisher. Is racial diversity a compelling interest? What is the role of empirical evidence? What do the empirical studies tell us about the benefits or harms of affirmative action? Diversity may provide better learning outcomes for all students (or for certain students), better preparation of students for a diverse world, and better social results due to formation of a diverse group of leaders. Which potential benefits “count”? How can a program be narrowly tailored to advance the interest in educational diversity?

Speakers

Speaker: Kevin D. Brown, Indiana University Maurer School of Law
Speaker: Erwin Chemerinsky, University of California, Irvine School of Law
Speaker from a Call for Papers: Paul Horwitz, The University of Alabama School of Law
Speaker: Jennifer Mason McAward, Notre Dame Law School
Speaker from a Call for Papers: Eboni S. Nelson, University of South Carolina School of Law
Speaker: Angela I. Onwuachi-Willig, University of Iowa College of Law
Speaker: Michael A. Rebell, Columbia University School of Law
Co-Moderator: Kimberly Jenkins Robinson, The University of Richmond School of Law
Speaker: Richard H. Sander, University of California, Los Angeles School of Law
Co-Moderator: Mark S. Scarberry, Pepperdine University School of Law

More information here.

RR

Happy Grading!

While some may say "happy holidays,"  it's also a time of grading for most ConLawProfs. 

Wishing all graders "Zen" again this year. 

RR
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Daily Read: Claire Potter's "Teachers Are Not Soldiers"

If the often touted solution to unacceptable speech is "more speech" in the First Amendment context, perhaps there is a parallel Second Amendment solution, as in "more guns."  Indeed, one repeated suggestion to prevent school shootings is to arm teachers with sufficient fire power.

Claire Potter (pictured) contemplates this suggestion in her popular Chronicle of Higher Education column "Tenured Radical."  Her latest post "Teachers are not Soldiers," highlights the ethical and moral rationales for not allowing violence to escalate into our schools and universities.

But Potter also has a compelling and deeply pragmatic argument. She relates an incident when a student was killed on campus and she and her colleague suspected that perhaps "Jack," a student who had been acting unbalanced, was the perpetrator:

Imagine if, because of our uncertainty about what was wrong with Jack or what it meant, we had greeted our innocent student — already laboring under great emotional strain — with a couple of handguns in the face. Imagine, worse, if there had been a second, inadvertent, killing that day because we misread his fear, anger or confusion as aggression. Veteran police officers, well trained as they are, make this mistake with far too great a frequency in the city I now live in. Historically, and in our current wars, so do soldiers. 

Potter's post is worth reading in full, especially if you can't precisely articulate the reasons you don't want to carry an automatic weapon with you to class in addition to your casebook, notebook, powerpoint notes, flash drive, keys, and class attendance list. 

RR

Constitutional Law Exam: 2012 Possibilities

For ConLawProfs, it's time to draft the Constitutional Law final exam.  And it's time for ConLaw students to study and master the materials, arguments, and theoretical perspectives in preparation for any (all?) possible hypotheticals. 

We've previously discussed some best practices regarding final exams, and noted the time-honored strategy of using current controversies to frame the exam. 

The caveat is that the exam question must include all the specific material and explanations that a student would need to answer the question and not rely upon extraneous information that not all students might share.

While some ideas from last year remain viable, there are some new exciting possibilities for the Constitutional Law exam.

Equal protection is a definite star this semester.  Shining brightest is the affirmative action case of Fisher v. University of Texas, argued before the United States Supreme Court in October, focuses on the continued validity of Grutter and perhaps affirmative action itself.  A well wrought exam question would provide students with opportunities to grapple with doctrine and theory, and it seems many ConLawProfs spent some time on Fisher (as I did, including having students read the excellent briefs).  

Only slightly less bright, but certainly much less focused, is equal protection in the same sex marriage cases still pending before the Court of petitions for certiorari.  The complexity of the DOMA and Prop 8 petitions can be easily distilled, however, with the Second Circuit case of Windsor providing an excellent template.  DOMA, as a federal statute, could also implicate the notion of federalism, especially as the First Circuit decided.  DOMA might also be "tweaked" to provide the basis for a Congressional powers issue. For those wishing a less complex same-sex marriage equal protection hypothetical than DOMA or Prop 8, the recent Nevada decision provides a good basis. 

The Court has also accepted certiorari on the constitutionality of the Voting Rights Act, implicating equal protection, but focusing on Congressional power under the Fourteenth and Fifteenth Amendments, as well as the doctrine under the Tenth Amendment.  

The Second Amendment has less vitality now than in the past few years, but the basis of a good issue (or sub issue) could be found in any number of recent gun regulations that have been upheld, including from the Second Circuit and the Fifth Circuit.

Want a takings clause issue?  Think raisins. Or temporary planned flooding.

For preemption, Arizona is a solid bet, with the newest issue to go before the Court mixing citizenship and voting). 

First Amendment issues abound, often subtly or not so subtly intertwining both speech and religion clauses.  There are anti-Islam subway/bus advertisements, the challenges to the ACA contraception requirements,(including by private companies),  prohibitions of recording of law enforcement officers, compelled disclosures regarding suicide risk in abortions, and prohibitions of sexual conversion therapy on minors. 

For those who like to draw on the popular culture zeitgeist, the Petraeus scandal could be a good springboard, spawning issues surrounding the constitutional status of adultery and perhaps state secrets and surveillance or the rights of public employees (consider a mandatory drug test?).

Good luck to professors and students alike!

RR
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Daily Read: Corporate Free Speech

In their article, Commercial Expression and Business Regulation in the Shadow of Citizens United and Sorrell, available in draft on ssrn, authors ConLawProf Randy Bezanson (pictured), William O'Hare, and Robert Miller ask "whether the system and market- based flexibility accorded government in its regulatory action will continue to be respected." 

In interrogating this question, one of their three case studies of regulation is off-label drug marketing, the subject of yesterday's divided Second Circuit opinion reversing a criminal conviction on the basis of the First Amendment, and an application of Sorrell v. IMS Health, Inc.  In their consideration of off-label drug advertising more generally, they write:

the apparent overbreadth of specific applications of a regulation will seem obviously unconstitutional without a perspective that recognizes a speech restriction as part of a broader system of similar speech regulations that, added together, protect the systematic and market justifications of government action. It may be obvious that sophisticated consumers of off-label drug treatments, or sophisticated investors in the new issue market for stock, don’t need the information or the waiting periods or the other regulatory steps that government may impose. But if those steps do help the market system by assuring equal and complete consumer information, even if at some inconvenience to a sophisticated few, there is justification for the looser scrutiny that the Supreme Court has historically accorded regulation of commercial speech.

Worth a read for anyone teaching or writing in the commercial speech area.

RR

Daily Read: Thirteenth Amendment Scholars Supporting Matthew Shepard & James Byrd, Jr. Hate Crimes Act

Did Congress have power pursuant to the Thirteenth Amendment to pass the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009? 

 

President Barack Obama greets Louvon Harris, left, Betty Byrd Boatner, right, both sisters of James Byrd, Jr., and Judy Shepard, center, mother of Matthew Shepard, following his remarks at a reception commemorating the enactment of the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act in the East Room of the White House, Oct. 28, 2009. (Official White House Photo by Pete Souza)

The question of the Act's constitutionality is before the Tenth Circuit in an appeal arising from the first prosecution under the Act.  In Hatch v. United States, the defendant challenges 18 U.S.C. § 249(a)(1), which provides:

 

Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person—

There seems to be little dispute that the three defendants admitted actions against the Native American victim, including branding the victim with a swatstika, fit within the terms of the statute.   But did the statute exceed Congress' power pursuant to the Thirteenth Amendment, or does the statute violate equal protection as guarenteed through the Fifth Amendment?

On the Thirteenth Amendment issue, ConLawProfs William M. Carter, Jr., Dawinder S. Sidhu, Alexander Tsesis, and Rebecca E. Zietlow, have filed an amicus brief, available on ssrn, argue that the Thirteenth Amendment's enforcement clause gives Congress broad powers.  They contend that the hate crime section should be analyzed under a defential rational basis standard, both because of its provenance in the Thirteenth Amendment and, perhaps most interestingly,  because the statute does not make a racial classification.

This is a terrific read of engaged scholarship as well as a providing a great grounding for a class exercise or student project.

RR

Daily Read: Political Parties and Judging

It's something that is, perhaps increasingly, difficult to ignore: the political affiliations of federal judges. 

Adam Liptak's article in the NYT yesterday takes on the subject with a focus on the recent Michigan affirmative action decision from the en banc Sixth Circuit.  Liptak provides the breakdown: "Every one of the eight judges in the majority was nominated by a Democratic president. Every one of the seven judges in dissent was nominated by a Republican president."   This, he argues, is consistent with a forthcoming book, The Behavoir of Federal Judges, an empirical study authored by Lee Epstein, William Landes, and Richard Posner. 

Liptak thus rejects - - - at least implicitly - - - the practice of SCOTUSBlog's preeminent reporter and commentator Lyle Dennison whose "note to readers" in his discussion of the Michigan affirmative action case explained; that he would not include "references to the political party affiliation of the Presidents who named the judges to the bench" because "the use of such references invites the reader to draw such a conclusion about partisan influence, without proof."  Denniston, however, did include a caveat: he would provide that information" when "it is clearly demonstrated that the political source of a judge’s selection had a direct bearing upon how that judge voted — admittedly, a very difficult thing to prove."

Whether it is a question of causation, correlation, or coincidence is an issue often raised by law students in ConLaw classes, and one that ConLawProfs struggle to answer from various perspectives.

For Liptak, however, there is predictive certainty.  Referencing the affirmative action case of Fisher v. University of Texas argued in October, he writes:

The justices’ votes in the Texas case are as yet unknown. But here is a good bet: every vote to strike down the program will come from a justice appointed by a Republican president, and every vote to uphold it will come from a justice appointed by a Democratic one.

RR
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"More Speech" or Vandalism? First Amendment and Political Advertising

The controversial political advertisements started appearing Monday on New York City subways after the MTA (Metropolitan Transportation Authority) was ordered to accept the advertisements. 

The MTA had originally rejected the adverts by the American Freedom Defense Initiative, an organization devoted to combating the "Islamization of America."  The MTA found the advert did not meet one of its standards: "“contain[] images or information that demean an individual or group of individuals on account of race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation." 

In its 35 page opinion in July, District Judge Engelmayer found that the bus advertisements were a designated public forum. The judge then found that the MTA's "demeaning" standard did not survive the Supreme Court's analysis in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), especially given the advert's content as core political speech.  Thus, the Judge granted the motion for a preliminary injunction enjoining the enforcement of MTA's no-demeaning standard.

The adverts were quickly altered by "vandals," as pictured right, and as a NY1 report explains.

However, there were also more public - - - and arguably less artful - - - attempts to alter the adverts, as in the video below in which a person uses pink spray paint and is intercepted by a photographer, all of which is recorded:

 

 

 

These incidents reflect back to the closing section of Judge Engelmayer's opinion: "Today’s ruling does not disable city authorities from adopting rules that hold ads and commentary" to a "standard of civility." He believed the ruling "instead leaves—and is intended to leave—MTA the latitude to investigate and experiment with alternative mechanisms for using ad space"   "productively, profitably, and constitutionally, while ensuring that this space is not used as a tool for disparagement and division."  

These incidents also call into play other standards of advertising in the MTA policy mentioned in the opinion, prohibiting adverts that "the public would find to be offensive or improper" and "are adverse to MTA’s commercial or administrative interests, or its employees’ morale."

For those teaching First Amendment, this would make a great problem or in-class discussion.

RR

UPDATE HERE

 

Daily Read: Radice on Bell on ConLaw Pedagogy

Need some midweek teaching inspiration? 

Professor Joy Radice shares her observations of the conlaw teaching of the late Derrick Bell (pictured): "Bell’s classroom community was a safe space to learn constitutional law, to discuss difficult but related issues of race, class, and gender, and to take risks when thinking about legal strategies."

Radice's terrific brief essay, "Derrick Bell’s Community-Based Classroom,” is part of the wonderful collection of essays from the conference last year, now available in Columbia Journal of Race and Law:

• “The Post Racial Era: Race, Silence, the Denial of Race/Racism and Optimism,” –Leonard Baynes, St. John’s University School of Law
•  “Notes Toward a Critical Contemplation of the Law,” –Sonia Katyal, Fordham University School of Law
• “Derrick Bell’s ‘Afrolantica’ and Gentrification in Harlem,” –Twila Perry, Rutgers University School of Law
• “How Derrick Bell Helped Me Decide to Become an Educator, Not Just a Faculty Member,” –Vanessa Merton, Pace University School of Law
• “Derrick Bell’s Community-Based Classroom,” –Joy Radice, University of Tennessee College of Law
• “ ‘A Living Working Faith’: Remembering Our Colleague Derrick A. Bell, Jr. as Teacher,” –Andrea McArdle, CUNY School of Law
• “A Legacy of Teaching,” –Robin Lenhardt, Fordham University School of Law
• “Derrick Bell’s Children,” –I. Bennett Capers, Brooklyn Law School
• “From Interest Convergence to Solidarity,” –Julie Suk, Cardozo School of Law, Yeshiva University
• “A Multiplicity of Interests,” –Rachel Godsil, Seton Hall University School of Law
• “Racial Fortuity, Rights Sacrifice, and the Promise of Convergence in Prison and Policing Policy,” –Taja-Nia Henderson, Rutgers School of Law – Newark

Each one of these essays is worth a read.

RR

First Amendment Appeal?: Shirvell's 4.5 million dollar verdict

A little less than two years ago, then-assistant state attorney Andrew Shirvell made news for his blog "Chris Armstrong Watch," entirely devoted to Chris Armstrong, the student body president of University of Michigan.  There was also some reportedly obsessive behavoir, such as showing up "at Armstrong's home three separate times, including once at 1:30 a.m," according to the state attorney general's investigation, which led to the termination of Shirvell.

Chris Armstrong sued Shirvell, as the video below discusses:

 

 

As the Detroit Free Press reports, a jury has awarded Armstrong 4.5 million dollars in damages.

While we previously suggested to ConLawProfs that Shirvell's termination from his assistant attorney general position would make a great class problem on the limits of  Garcetti v. Ceballos , the jury verdict presents opportunities to explore First Amendment defenses to tortious behavior, including defamation, intentional infliction of emotional distress, and stalking.

RR
[video via]
[h/t Art Leonard]

First Amendment Right to Impersonate a Police Officer? Split Fourth Circuit Panel Opinion

An opinion by a split panel of the Fourth Circuit in United States v. Chappell upheld the constitutionality of Virginia's "police impersonation statute," Va. Code §18.2.-174.  

The case arose when Chappell, a former Fairfax County Sheriff employee was stopped for speeding, and, hoping to avoid a ticket, represented that he was a member of the Sheriff's Office.   (Apparently, Chappell believed it would be a successful excuse; and apparently the officer who stopped Chappell thought it was sufficiently important to validate).  The prosecution was in federal court: the offense occurred on the George Washington Memorial Parkway and involved a US Park Police officer; federal law makes the Virginia impersonation statute applicable to the George Washington Memorial Parkway.

At the center of the First Amendment argument - - - and of the disagreement between the majority and dissent - - - is the Court's June 28th opinion in United States v. Alvarez, the "stolen valor" case.   The majority has a nice digest of Alvarez:

In Alvarez, a four-Justice plurality declared that false statements of fact do not by themselves fall outside of the First Amendment’s scope. Id. at 4-10. Applying exacting scrutiny, the plurality invalidated the Stolen Valor Act because there was not an adequate causal link between the Act and the government’s interest in protecting military honors and because the Act did not represent a sufficiently narrow means of securing that interest. Id. at 12-18. Moreover, in this context, simple counterspeech should suffice to achieve the government’s objectives. Id. at 15-17. Justice Breyer, joined by Justice Kagan, produced the majority for invalidating the statute. Concurring in the judgment, Justice Breyer reasoned that the Stolen Valor Act worked a disproportionate harm to protected speech interests relative to the government’s interests advanced by the Act. Id. at 8-10 (Breyer, J., concurring in the judgment).

The majority then states, "Significantly, no Justice thought it advisable to drape a broad cloak of constitutional protection over actionable fraud, identity theft, or the impersonation of law enforcement officers."   This limitation of Alvarez for the majority is necessary to avoid "a treacherous scenario of falling statutory dominoes, placing numerous federal and state impersonation statutes at risk — all in the face of the Supreme Court’s strong signals to the contrary."  

The majority also grounds its conclusion in constitutional principles counterbalanced with the First Amendment: 

The police function serves a significant salutary purpose in protecting public safety, but it also possesses an oppressive potential in the curtailment of liberty. Courts over time have been required to superintend this balance through Fourth Amendment reasonableness doctrine and related measures. To strike down police impersonation statutes, however, would risk expanding the oppressiveness of the police function by adding to the legitimate number of officers an untold flock of faux policemen, all without any corresponding salutary benefit. This strikes us as a complete inversion of the traditional balance courts are charged with maintaining.

Judge James Wynn, in a dissenting opinion as lengthy as the majority's opinion, argued that the Court in Alvarez rejected "the notion that false speech should be in a general category that is presumptively unprotected."  He criticizes the majority for "cherry-picking" language from Alvarez to support its conclusion that statutes criminalizing impersonation are constitutional.  For Judge Wynn, the Virginia statute

does not require any act, does not require that the individual obtain anything of value, and does not include any showing of actual deception or harm. In sum, the provision in the Virginia statute before us, and under which Chappell was convicted, criminalizes mere false speech and is closer to the Stolen Valor Act than to the impersonation statutes discussed in Supreme Court dicta and relied upon by today’s majority opinion.

Both the majority and dissent also discuss what the majority terms the "lifeboat of the overbreadth doctrine."  For the majority, this is no lifeboat at all: it calls some of Chappell's hypothetical applications - - - such as those attending costume parties - - - as "far-fetched."  Judge Wynn finds such applications worth considering, again because the statute does not include an element of intent to defraud, as most impersonation statutes do.  For example, Judge Wynn notes that the statute "would have covered Chappell, even if he had not attempted to avoid a ticket but instead expressed his remorse for violating a traffic law, stating, 'I am a police officer and should have known better.' " 

With the ink on Alvarez barely dry, there are already important disagreements about its scope. 

RR
[image: "Speeding ticket" by Anna Palm deRosa circa 1900, via]

Fisher v. UT - Amicus from Constitutional Accountability Center

Joined by ConLawProfs Bruce Ackerman, Vikram Amar, Jack Balkin, Burt Nueborne, James Ryan, and Adam Winkler, the Constitutional Accountability Center has filed an amicus brief in Fisher v. University of Texas, the "reverse discimination" case set for oral argument in the United States Supreme Court on October 10.  

Dissenting from the denial of en banc review in the Fifth Circuit, Judge Edith Jones highlighted the panel decision's deviations from Grutter v. Bollinger.  The Constitutional Accountability Center brief argues that UT's policy is constitutional under Grutter, but also makes the wider claim that the "text and history" of the Fourteenth Amendment allows governments to "enact race-conscious measures to ensure equality of opportunity."  

ConLawProfs finalizing their syllabi for the semester might consider integrating the amicus brief, other briefs, or one of the scholarly discussions from Vanderbilt Law Review En Banc for the Equal Protection discussion.

RR