Tuesday, June 30, 2015
Some movement in Alabama
Monday, June 29, 2015
So how are you doing after Glossip?
This is the question I’ve gotten all day long. I feel like a widow at a funeral, with well-wishers stopping by to pay their respects and offer condolences. Thank God I wore black.
For the record, my take on Glossip is that the Justices upheld the use of midazolam in executions because they wanted to. This shouldn’t come as new news (after all, this is how many, if not most Supreme Court decisions are made) but let’s just take a moment to call a spade a spade. The law didn’t make them do it. The facts didn’t make them do it. Indeed, both cut the other way, as Sotomayor’s dissent shows in painstaking detail.
For those who want the Cliff’s Notes version of this 127-page decision, the ruling in Glossip had two bases: (1) the district court didn’t err in finding that midazolam was likely to render a person insensate to pain; and (2) in any event, the petitioners didn’t meet their burden of showing a known and available alternative to midazolam.
The Most Dangerous Precedent (or, A Silly Extravagance)
In today’s concurrence to Glossip v. Gross, Justice Scalia identifies a precedent that “has caused more mischief to our jurisprudence, to our federal system, and to our society than any other that comes to mind.”
The villain is Trop v. Dulles, 356 U.S. 86 (1958), which held that it was unconstitutional to strip a native-born American of his 14th-Amendment-provided citizenship as punishment for briefly deserting his military post while serving in Morocco in 1944. (“He had been gone less than a day and had willingly surrendered to an officer on an Army vehicle while he was walking back towards his base.”) The mischief arises from a passage frequently quoted from Chief Justice Warren’s plurality to the effect that the Cruel and Unusual Punishment Clause “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”
Let’s leave aside that the Trop language is a tolerable paraphrase of Weems v. United States, 217 U.S. 349 (1910), which rejected an originalist approach to the Eighth Amendment to hold that fifteen years of hard labor for falsifying a public document was unconstitutional. Has Trop caused more mischief “to our society” than any other case that Justice Scalia can think of? Even if you disagree with the Trop language, at worst it means that a handful of persons can successfully challenge an extraordinary criminal sentence, and that a larger handful can make colorable but unsuccessful challenges to theirs. This is worse for society than any other case that the justice has decried? Than the decisions mandating a right to abortion, to sodomy, to same-sex marriage, or to coeducation at the Virginia Military Institute? No, society is most harmed by jurisprudence that prevents the government from getting as close as it possibly can to the very edge of cruel and unusual punishment.
In a post from last week, I argued that some fire-breathing dissents can be worth teaching in an introductory Con Law class. But now that Justice Scalia has declared, in his Obergefell dissent, that one should expect “separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression,” I need to add a note of caution. A silly extravagance like the overblown attack on Trop v. Dulles can teach students lessons that I would prefer not to impart: that it’s more important to sound good than to be correct (long live truthiness); that consistency is the hobgoblin of small minds; that picking your battles is for suckers; and that once you’ve risen to a prominent place in your profession, nobody can stop you from phoning it in. These lessons may have bits of truth to them, but I’d rather focus on others.
(Apologies for shooting fish in a barrel, but since we're talking about the quality of legal prose...)
Two thoughts on Paul's post about the prose in Justice Kennedy's Obergefell opinion:
1) If you had asked me as of 9:57 a.m. Friday, I would have predicted the vote would be 6-3, with the Chief joining the majority. And at least part of the reason I thought he would join the majority was to keep the opinion away from Kennedy--either by writing it himself or giving it to Justice Ginsburg--so as to get a narrower, less flowery, clearer, likely more Equal Protection focus.
2) Judge Posner's opinion, while a blast to read (at least if you agree with his conclusions), was criticized in some circles as similarly not placing itself within the ordinary (he uses "conventional") doctrinal framework. He did not commit to a standard of review, not resolving the fundamental rights questions, using cost-benefit balancing analysis that was neither heightened nor strict scrutiny, while insisting that the difference was semantic more than substantive. Posner's opinion is noteworthy for the way it tears apart (and makes fun of) the state's arguments in support of SSM bans. But Posner departs from the typical judicial style as much as Kennedy does.
Standing in the Arizona Redistricting Case: Some Initial Observations
There's much to be said about standing in Arizona State Legislature v. Arizona Independent Redistricting Commission. The Arizona Legislature, the Court held, had Article III standing to sue to remedy the "deprivation" of "its alleged prerogative to initiate redistricting."
Justice Ginsburg's standing decision for the Court is an important precedent for "an institutional plaintiff asserting an institutional injury." Writing in dissent, Justice Scalia would have held that Article III courts have no business deciding "suits between units of government regarding their legitimate powers." Coleman v. Miller, which seems to the contrary, was, in Justice Scalia's view, "a peculiar case that may well stand for nothing."
Now that Coleman's peculiar no longer, what's next for institutional standing? I'll offer some initial observations.
Southern California Law Review on "Religious Acommodation in the Age of Civil Rights"
Not that it would be of much interest to anyone. I mean, it's not like it's been in the news much lately. But I commend to readers the new issue of the Southern California Law Review, which contains a number of interesting articles, of distinctly varied views, on this topic, stemming from a conference at Harvard Law School last year. A link to the Law Review page is here. Alas, the articles are kind of interspersed with other recent material in the journal, but the titles are pretty clear. I haven't read all the articles in it yet, but I can at least recommend those I have read, by Rick Garnett, John Inazu, Andy Koppelman, Steve Smith, and Mike Helfand. Other papers from the conference, published in the Harvard Journal of Law and Gender, can be found here. (I don't know how they determined which article would go in which journal.) Again, I have not read everything in that issue, but can highly recommend the articles by Mark Tushnet and Tom Berg.
A propos of John Inazu's article, I will just note that I think both Hobby Lobby and the next storm of religious accommodation cases and controversies make the question of pluralism an especially important one. In particular, I think it is the best source of ideas for those of us who continue to believe that there is an important role for religious accommodation (without prejudging here the limits of that accommodation), and who may want to find new language and arguments both to explain that view and to offer an alternative to some of the recent memes that have gained some popularity around these issues. It's not as if nothing has been written on the subject of pluralism before, but I think the subject is due to undergo something of a revival. I hope to write in that vein in the next little while, and I know John has a lot more to say on the subject.
A Hallmark of an Opinion: Justice Kennedy's Writing Style and How Much--or Little--it Matters
Although I think I disagree with him on some aspects of his post, I very much appreciate that Richard's post on Justice Kennedy's opinion in Obergefell doesn't simply line up on one side or the other of the usual "tastes great"/"less filling" debate on Kennedy as writer (or editor--I don't know how much Kennedy writes versus edits, although in the "big cases" the chambers voice is quite consistent). My sense is that Richard is positively disposed as far as the writing in Obergefell is concerned, whereas I opt for the "less filling" side. But Richard's post is mostly concerned with saying some more interesting things about the opinion and judicial opinion writing more generally. Let me try--mostly--to do the same thing here. I want to ask whether and how much it matters that Kennedy tried to write an opinion for "the people" instead of a more specialized audience. I conclude that the answer is: not much. An opinion on a deeply personal hot-button issue of this sort will attract attention regardless of how it is written, and a ruling that one favors on such an issue will receive praise regardless of how poorly written it is. Kennedy's continual striving after deep emotional affect in opinions of this kind is not only poorly accomplished, but mostly needless.
Texas responds to Obergefell
Texas Attorney General Ken Paxton has issued a non-binding opinion letter about implementation of Obergefell. Paxton concludes that 1) county clerks and their employees retain religious freedoms that may allow them to opt-out of issuing licenses to same-sex couples, but it will be fact-dependent and 2) State judges and county justices of the peace may similarly seek an opt-out, depending on the facts. The county clerk in Bell County followed the letter to announce that her office would issue licenses to same-sex couples, with individual employees able to seek an opt-out. Josh Blackman has detailed thoughts; Josh argues that this becomes a matter of staffing, rising to a constitutional problem only if no one in the office is willing to issue licenses to same-sex couples or if there are excessive delays or administrative difficulties.
I believe Josh basically has it right, although I would offer a few caveats.
U.S. Hostage Policy and the Need for a "Czar"
Yesterday, I attended a memorial service celebrating the life of Warren Weinstein, the father of a dear friend of mine. As was widely reported, Warren was an aid worker who was killed in a U.S. drone strike last January after being kidnapped in Pakistan and held captive by al Qaeda for more than three years. Many people spoke at the memorial about how remarkable Warren was--a true humanitarian, a great intellectual, a devoted family man, a generous mentor, and a loyal friend. Warren will be sorely missed by those who knew, loved, and respected him.
Barbara Mikulski, the senior U.S. Senator from Maryland, was among the speakers at the service. Sen. Mikulski, together with Sen. Cardin (Md.) and Rep. Delaney (Md.), have worked closely with the Weinstein family through this terrible ordeal. Sen. Mikulski discussed the policy changes that have come about in part because of Warren's tragic death. As discussed here and here, President Obama announced a policy overhaul last week that (1) authorizes the government, families, and third parties to communicate with captors; (2) ensures that families who pay ransoms will not face criminal charges; and (3) reorganizes the government's hostage recovery efforts.
While a step in the right direction, Sen. Mikulski believes that more should be done for the families of hostages. To that end, legislation has been proposed in both the House and Senate to create a "hostage czar" charged with coordinating and directing governmental efforts to secure the release of U.S. hostages held by terrorist groups. For families like the Weinsteins, knowing that someone in the government is waking up every day focused exclusively on bringing their loved ones home would go a long way.
Obergefell in Haiku
At McSweeney's, Daniela Lapidous has helpfully condensed each of the opinions in Obergefell to a haiku. Chief Justice Roberts, for example:
I support you all
No, really, I do, but this
Isn't our problem
For the rest, see The SCOTUS Marriage Decision in Haiku. (Hat tip to Leah Lee.)
Strange Bedfellows #11: Subsequent History Surprises
This post is part of the Strange Bedfellows series.
Most Constitutional Law classes discuss how the system can correct its mistakes. If one branch or level of government errs, others can respond, pushing the substance of the law to a new equilibrium. Teaching the subsequent history of anti-canonical cases is one good way to demonstrate this point. Constitutional amendments erased Dred Scott and Pollock, later court decisions overruled Lochner, the Pregnancy Discrimination Act made Geduldig largely irrelevant, and the Georgia Supreme Court held that the sodomy statute upheld in Bowers v. Hardwick violated the state constitution. To show how SCOTUS does not always have the last word, my casebook includes short units called “Flash-Forwards” that tell the rest of the story (or at least some of it). Once students are attuned to possibilities outside the courtroom, they can have a good classroom discussion about what a concerned citizen, legislator, or executive branch official might do in response to a troubling court decision.
It is less common to spend time on the subsequent history of cases that are canonical—the ones considered good law, never overruled. As usually presented in casebooks, Cooper v. Aaron (1958), Palmore v. Sidoti (1984) and United States v. Carolene Products (1938) are all cases where the Court got things right, guiding the system to a proper equilibrium. But in each of these cases, the victory promised in the canonical opinion played out differently on the ground, with the results for the prevailing party being less than advertised. The subsequent histories of these canonical cases could in theory be as deserving of class time as the subsequent histories of anti-canonical cases—the basis for a discussion about the value of a court victory.
But I confess that I have not had the stomach to tell my students about some of them. Which of these would you put into your casebooks, and which stories would you save for the teacher’s manual?
The Machinery of Death Lives to Kill Another Day
The Supreme Court has just issued its decision in Glossip v. Gross, a petition on behalf of Oklahoma inmates along the familiar lines of tinkering with the machinery of death. After the Court found the three-drug protocol constitutional in Baze v. Rees, many executions stopped because the first drug in the trio became scarce (partly because European countries, disgusted with our retention of the death penalty, stopped exporting it.) As a solution to the problem of not being able to kill people, Oklahoma has introduced a substitute, the anesthetic Midazolam. This morning's decision sides 5:4 with the state, finding that the inmates have not proven that using Midazolam would violate the Eighth Amendment, nor shown an alternative method.
I hope that Corinna, who has blogged knowledgeably and extensively about various aspects of the decision, will chime in soon enough with interesting commentary. I just want to add a few words about the futility of this entire litigation avenue, which is based on perpetuating a farce for symbolic reasons.
As you, gentle readers, probably already know, the reason death row inmates and their attorneys have to resort to the "tinkering" line of arguments stems from the post-Gregg convention that the death penalty is constitutional in principle, and therefore there must be a constitutional way to administer it. The problem is that, in the search for such a way, we have tried and abandoned several methods. As Austin Sarat shows us in Gruesome Spectacles, there really is no good way to kill people: approximately 3% of all executions are botched. The line between an execution that "went well" and one that didn't becomes remarkably blurry with the modern, pseudomedical ways to kill people. Still, there are enough documented lethal injection cases in which things did not go as planned to remind us that, no matter how clean and medical they appear, all of these methods will essentially fail to achieve the impossible distinction between death and suffering.
But moreover, can we really say that an execution that "went as planned" is a victory? I remember telling students, who argued a version of Glossip last spring in moot court, that using the sentence "the execution was successful" was grating on my nerves (and surely of those of others who are uncomfortable with state-sanctioned killings.) You can't divorce death from suffering: death is suffering. And it is clinging to the farce that the two are separable that makes court decisions on this matter farcical as well. Today's decision complains about "activists" that have made the drug scarce--as if it is their obligation to mitigate the harm. It also finds that the inmates have not offered a better solution to the state, as if they should wrap the executioner's ax with velvet: "here, this might be more comfortable for me."
What would happen if we let go of the assertion that there must be a way to kill people? If we let go of incessant litigation about the technologies of death? If we let go of the immensely costly post-conviction mechanism in which death row attorneys, completely out of options that invoke a true fundamental conversations about the heart of the matter, have to juggle chemicals and contraptions arguing that no, this one ain't good enough, either?
(I should say: I don't fault litigators one bit for engaging in this chatter. You do what you can with what you have to zealously defend your client. The abolitionist movement contains multitudes, and it is okay to fight for one's client's life by any means necessary while others continue to tackle the death penalty itself.)
The tenor of today's decision, which clings to the moral imperative to kill people in the face of medical and scientific evidence that doing so is truly not possible without flukes and silences the truth behind the farce, that death and suffering are inseparable regardless of whether the executions is regarded as technically "botched", further supports my conclusion from the last couple of years of this, namely, that the death penalty will not, itself, be executed. It will die a slow, costly death from a chronic disease--much like the inmates at San Quentin.
Sunday, June 28, 2015
Rhetoric and Reason in Obergefell
It’s not the most important thing about Obergefell—or even the second most important—but it’s noteworthy that rhetoric played a remarkably overt role in the Court’s opinions, particularly in the sharp criticisms leveled by the dissenting justices. I offer a few thoughts below. By way of disclosure, several years ago I clerked for Justice Kennedy, author of the Obergefell majority.
Is the question moot?
Immediately following Obergefell, Nebraska moved in the Eighth Circuit to lift the stay of a district court injunction invalidating the state's ban. In its motion, Nebraska argued that the case is moot because the Attorney General has certified that he will comply with Obergefell and no longer enforce the Nebraska ban. The motion cites to cases (from the Eighth and Seventh Circuits) holding moot challenges to laws that had been declared unconstitutional in a separate case by a controlling court. It also argues that this case is not capable-of-repetition-yet-evading-review, because the state's promise to comply with Obergefell means no one in Nebraska will be denied a license.
This argument seems wrong to me, at least as the state presents it. The government's promise not to enforce a law is generally not sufficient to moot a case (without implicating C/R/Y/E/R). A state can moot a case by repealing a state law, but Nebraska has not done so (and likely will not). The cases Nebraska cites are not on point, because Nebraska's marriage ban has not been declared unconstitutional. The bans in other states have been declared unconstitutional in a decision that, as binding precedent, likely will result in Nebraska's ban being declared unconstitutional. But that is different than a declaration as to Nebraska's law.
I did find one case (not cited by Nebraska), Christian Coalition of Alabama v. Cole (11th Cir. 2004), holding that a constitutional challenge to state judicial canons was moot as a result of precedent from a different state. There, the state judicial ethics commission represented that it would not enforce a canon in light of SCOTUS precedent declaring invalid a similar judicial canon from Minnesota, mooting a challenge because there was no threat of any judicial candidate being sanctioned. This case suggests that Nebraska is correct. Moreover, in asking whether voluntary cessation has mooted the case, courts link the possibility of a renewed enforcement back to standing. Given Obergefell and Nebraska's commitment to abiding by it, a new couple initiating a challenge to its ban likely would be held to lack standing (unless actually denied a license). In the absence of any indication that the plaintiffs in the pending action will be denied a license because of the AG's representation, perhaps the case has indeed become moot.
Sentencing, Vagueness, and Facial Invalidation in Johnson v. United States
In a rare decision that will earn plaudits from both the defense bar and many government attorneys, Johnson v. United States held that the “residual clause” of the Armed Career Criminal Act is unconstitutionally vague. Enjoying a kind of personal vindication, Justice Scalia wrote for the six-justice majority and so got to turn several of his prior dissenting opinions into the holding of the Court. By contrast, Justices Kennedy and Thomas would have found simply that the statute didn’t apply to this defendant. Finally, Justice Alito dissented on grounds partly endorsed by Kennedy and Thomas.
I’ve covered Johnson before. In short, I’ve basically argued that the Court’s repeated interactions with the residual clause are what rendered it vague. That explains why, for nearly 30 years, the allegedly vague residual clause has been able to function on such a massive scale, including during numerous trips to the Court. Only recently has there been any serious interest in finding the residual clause to be vague, for only after the clause had generated repeated judicial opinions did that vagueness come to exist.
So that means that I tend to agree with important features of both the majority and the dissent in Johnson: the majority is right that the residual clause is vague today, but the dissent is right that the vagueness is the judiciary’s own doing. This raises the question: what to do about it?
Saturday, June 27, 2015
More on SSM in Alabama
According to WSJ, Alabama Attorney General Luther Strange (who remains under a district court injunction not to enforce the state ban), announced "While I do not agree with the opinion of the majority of the justices in their decision, I acknowledge that the U.S. Supreme Court’s ruling is now the law of the land." Although the Association of County Commissions yesterday recommended that probate judges wait for further word from either SCoA or Judge Granade, probate judges in many parts of the state declined to listen, including in Birmingham and Mobile. Four counties have refused to issue licenses to same-sex couples and eight are not issuing licenses at all.
Always read beyond the headline
Admit it. How many of you see this headline--Alabama judge: Marriage ruling worse than segregation decision--and thought Roy Moore was talking about Brown?
More of what happens next (Updated)
A follow up to this post and more details:
1) According to this story, Roy Moore is being . . . Roy Moore. He said Obergefell was worse than Plessy; continued to insist that there is no such thing as same-sex marriage in the Constitution; and he "can't say" whether same-sex marriages will happen in the state. This story shows Moore going even further around the bend, now accompanied by his wife, a conservative activist: Moore insists the Court not only lacked authority to issue the ruling, but that Ginsburg and Kagan should have recused, calling into question the validity of the decision. There is a good chance that someone in Alabama is going to be held in contempt.
2) But the same story indicates that Alabama Governor Robert Bentley said he disagrees with the decision, but he would "uphold the law of the nation and this is now the law."
Critical Theory and Ideological Drift: Normal, Mutual, and Potentially Productive
It takes a while--a very long while, sometimes--for serious analyses of a new Supreme Court opinion on a socially contested issue, let alone one often cast as the contested issue of our times, to shake out and emerge from the welter.
There is a kind of common pattern to events. First comes the unstinting praise, the joy and relief, the casual forgetting of inconvenient predictions--and, on the other side, outrage, defiance, scorn, calls for constitutional amendment, the campaign posturing, and so on. Perhaps a few voices emerge, a couple centrist and a couple radical, with serious critiques, but they are rare and rarely heard. Certainly, given the usual divvying up of sources in news stories between the representatives of liberal conventional wisdom and those of conservative conventional wisdom, those views rarely gain any hearing outside limited niches. People who support the outcome but question some of the reasoning, or much of the writing, are also often understandably wary of speaking too early. They do not want to spoil the moment, or be misunderstood as not supporting the cause. They also fear professional obloquy for going against the consensus; they know that in the academy as elsewhere, one is generally better off being conventional or silent on such matters rather than taking the risk of unconventionality. Or--somewhat like me--they think of profound wrongs and injustices done to the group served by the opinion, weigh the little wrongs of the opinion against the greater good gained and joy felt, and are reluctant to seem like spoilsports, even though they know that this is surely not a sound academic consideration. A conventional wisdom emerges and solidifies. The discussion that follows later may be more credible and thoughtful, but now faces an uphill battle.
Friday, June 26, 2015
What happens next?
I still have not had a chance to read Obergefell, but I wanted to throw together a quick post on what is happening in the decision's immediate aftermath. This Slate piece collects responses from governors and AG's in several states; in ten states, the executives announced that they would immediately implement the decision and begin issuing licenses, which happened almost this morning and afternoon in a few places (includes photos).
Other states appear ready to at least demand that the process run its course. As a commenter on my earlier post noted, Mississippi's A/G, Jim Hood, told circuit clerks not to issue licenses; he said "the Supreme Court's decision is not immediately effective in Mississippi until the Fifth Circuit lifts the stay" on a district court injunction, which Hood suggested might take longer than many expect. This is inartfully stated, but actually correct. The Court's actual mandate is not directly binding on anyone in Mississippi with respect to anyone in Mississippi, who were not parties to the case. Hood overstates it, however, in that any new couple could initiate a new lawsuit against Hood and a circuit clerk and obtain an injunction in light of Obergefell as binding precedent. In any event, it should not take long--the attorney for the plaintiffs has already indicated his plan to file a motion to lift the Fifth Circuit stay, which should be immediately granted.
And what about Alabama, my favorite bastion of procedural nuance? No official word yet. The probate judge in Pike County announced that he would no longer issue marriage licenses to anyone, insisting that the state law empowering probate judges to issue licenses uses the word "may," giving the judge the discretion whether to issue licenses (so long as he does not discriminate). The Alabama Association of County Commissions recommended that probate judges accept applications but delay issuing licenses until resolution of both the Supreme Court mandamus and the stayed federal injunction. I expect the federal plaintiffs to quickly lift ask Judge Granade to lift her stay of the injunction, against a defendant class of all probate judges in favor of a plaintiff class of all same-sex couples; doing so will immediately bind all probate judges to issue licenses on equal terms to all couples. And I imagine someone will ask the Supreme Court of Alabama to vacate its mandamus, since its reasoning has been superseded and cannot stand after Obergefell. And if the court declines, look for someone to ask SCOTUS to stay the injunction, if not to summarily reverse it.
Two Cheers for Obergefell
Today’s decision in Obergefell raises an interesting conflict between constitutional substance and constitutional process – or, put another way, the conflict between recognizing that a change is due and bringing about that change in the right (meaning democratic) way. On the whole, as I explain after the jump, I regard Obergefell as a minor setback for gay and lesbian equality, but probably an inevitable and necessary one.
Obergefell and the Future of Polyamorous Marriage
In The Future of Polyamorous Marriage, Gwyn Leachman and I examined the complicated relationship between the same sex marriage struggle and the future struggles of underserved sexual communities. As we argue there, the "spillover" effect of rights on subsequent movements can be ambiguous: on one hand, it opens the door for future arguments as an incremental step on the path to change, and on the other hand, it may generate difficulties based on how movements situate themselves.
The oral arguments in U.S. v. Windsor were a case in point: Ted Olson argued there that gay and poly marriage differ in that the first one targets status and the second, behavior. The distinction struck us as very unconvincing, but when we looked at the legal doctrines, we were able to point out possible paths and obstacles for poly activists.
Today's decision in Obergefell v. Hodges adds an interesting data point--not so much in the opinion of the court, but rather in the Chief Justice's dissent. As he argues, "It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage".
To which many advocates of legal recognition for poly families might answer, "you say it like it's a bad thing". But is Roberts right to point out that the entire decision applies to poly families with equal force? I suspect that antagonists of poly marriage will argue that the fundamental right to marry differs from the arguably non-fundamental right to marry more than one person at a time. And given Olson's argument in Windsor, I expect some of these antagonists to be gay marriage proponents (though in the aftermath of their total victory, they may be less afraid of what they might perceive as an unsavory association). For reasons that Gwyn and I point in our article, there may be snags in the legal arguments about equal protection, too--whether it's made on the basis of sex or sexual identity. I don't think I'll see poly marriage in my lifetime, but I wonder if I'll at least witness some forms of legal recognition extended to poly partners. Thoughts?
Chevron's Magical Disappearing Act?
I want to add a few words to Adam Zimmerman's post here on Chevron and King v. Burwell and Chris Walker's post at Yale JREG on the same topic. There's something that yesterday's blockbuster cases share: Neither one relies on the Chevron doctrine to uphold the government's statutory interpretation.
As Adam and Chris discuss, Chevron made a brief appearance in King when the Court explained it did not apply because the interpretive question had "deep 'economic and political significance.'" In Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., yesterday's decision interpreting the Fair Housing Act, the Court didn't apply Chevron and didn't even explain why. And that's surprising because, as I discussed here yesterday, HUD had promulgated a rule addressing the interpretive question before the Court.
What accounts for Chevron's magical disappearing act in Texas Department?
Johnson v. U.S.: Has SCOTUS Lost Its Appetite for Sentencing Enhancements and Risk?
Amidst the good news that are not this blog's topic, about which you can read here and here, the Supreme Court also decided an important sentencing case, Johnson v. U.S.
The case involves the federal Armed Career Criminal Act, a habitual offender law that provides a sentencing enhancement upon committing the third violent offense. The residual clause of the law defines "violent offense" as any offense that “involves conduct that presents a serious potential risk of physical injury to another.”
In Johnson's case, the sentence was enhanced because his third offense was possession of a firearm (Johnson is a felon, and the firearm in question was a sawed-off shotgun. If you want more background, Johnson was being monitored for belonging to a white supremacist organization and being a source of concern re terrorism, and confessed to some pretty scary plans in that regard--so you can be sure that this decision is not about his niceness).
The initial question put before the court was whether possession of a firearm fits the definition in the residual clause, but the Supreme Court asked the parties to brief on a broader issue: the definition of "violent offense" itself. Today, the Court sided 8-1 with Johnson, finding that the definition of "violent offense" was too vague and did not provide sufficient warning about conduct, and framing its argument in a way that bodes well for those of us concerned about the "new penology", the language of risk, and the retrenchment of punitive opinion against violent offenders.
For those of you who are inexplicably here rather than at SCOTUBlog, here is the 103-page opinion in Obergefell. Kennedy for five; dissents from each of the Chief, Scalia, Thomas, and Alito.
Thursday, June 25, 2015
“An Antidemocratic and Largely Foreign Conspiracy”
In my last post, which considered whether abolitionist sentiment should matter to the Justices’ decision-making in Glossip, I noted that part of that sentiment (a good deal of it, actually) is coming from nation-states that have long been abolitionist. Here I’ll expand on that theme, and connect it up with the title of my post, which unfortunately comes from one of the amicus briefs in Glossip.
As most people know, Europe is almost entirely abolitionist (indeed, in all of Europe, only Belarus still has the death penalty, and it’s so close to Moscow that it’s hard to think of it as Europe). And Europe isn’t abolitionist-light—it’s as committed to abolitionism as the United States is to its death penalty. Abolishing the death penalty is a requirement for EU membership, and in 1998, the EU made worldwide abolition a centerpiece of its human rights agenda, declaring that it would “work towards universal abolition of the death penalty as a strongly held policy view agreed by all EU member states.”
These guys are not fooling around. It was the EU that sponsored UN Resolution 62/149, adopted by the UN General Assembly in 2007, which declared that “the death penalty undermines human dignity” and called for all nation-states to institute a moratorium as a first step towards abolition. The vote was 104 nations in favor, 54 against, with the United States leading the dissenters.
The point here is that European abolitionism has been around for a long time, a lot longer than the current snafu over lethal injection drugs, and these countries are Dixie Chicks serious about abolishing the death penalty worldwide. So when the market for thiopental experienced upstream supply problems, and when thiopental’s producer (Hospira) moved its production plant from North Carolina to Italy for reasons that had nothing to do with any of this, is it any wonder that Italy, then Great Britain, and then the EU as a whole, saw an opportunity, and seized it, to put the damper on death penalty drugs?
For decades, EU governments had tried, and largely come up short, to influence the United States with their anti-death penalty views. To borrow a line from my paper with Jim Gibson, it turns out that the best way for European governments to export their abolitionist norms was to stop exporting their drugs.
What’s wrong with that?
Chevron After King v. Burwell
As Richard already observed today, in King v. Burwell, the Court upheld the government's interpretation of the Affordable Care Act to allow people to get subsidies on healthcare exchanges created by the federal government. Chris Walker has a nice post at JREG discussing the case.
Fair Housing and the Federal Executive
Today's decision in Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc. "acknowledges the Fair Housing Act's continuing role in moving the Nation toward a more integrated society." That requires, the Court held in an opinion by Justice Kennedy, recognizing disparate impact liability under the FHA.
The Court thus joined the Secretary of Housing and Urban Development, who had already interpreted the FHA to encompass disparate impact. HUD's regulation, as Justice Kennedy noted, had influenced the court of appeals in Texas Department. Going forward HUD will continue to play a role in shaping disparate impact law under the FHA. All of which raises a question I've written about before: What role does the Executive Branch have in shaping property lawmaking?
The question may seem a strange one. We don't usually think of the federal Executive when we think about property lawmaking. But we should. Why? Look no farther than the three opinions in Texas Department. Each acknowledges the Executive's role and has a different view of it.
I think the Court got it right in King v. Burwell, but I don't have anything to say on the merits. But I do want to briefly comment on how the majority explained its cert grant and some underlying procedure in the case.
On p. 7, at the end of Part I, Chief Justice Roberts, having summarized the decision of the lower court (the Fourth Circuit), says "[t]he same day that the Fourth Circuit issued its decision, the Court of Appeals for the District of Columbia [reached the opposite conclusion in a different case." The implication is that the Court granted cert for its typical reason--to resolve this circuit split. Sup. Ct. R. 10(a).
But that description is incomplete and arguably inaccurate. Two months after both circuit panels issued their opinions and two months before the Court granted cert in King, the en banc D.C. Circuit vacated that panel decision and granted rehearing en banc. As a result, at the time the Court conferenced and granted cert in King (in November), there was no circuit split, only one court of appeals decision interpreting the statute to allow for subsidies on all exchanges. In fact, the government used this to argue against cert in King, an argument the Court obviously rejected in taking the case.* The majority opinion does not even drop a footnote to give the bigger picture.
[*] Once SCOTUS granted cert in King, the D.C. Circuit held the Halbig appeal in abeyance, pending King.
Is Judicial Restraint More of a Method, or an Effect?
Today’s King v. Burwell face-off between Chief Justice Roberts and Justice Scalia illustrates a difference in emphasis between these two mavens of judicial restraint.
For Scalia, judicial restraint primarily means adherence to a neutral method of decision-making. If courts scrupulously follow that proper interpretive method, then they are engaged in judicial restraint—no matter the practical consequences.
For the Chief Justice, by contrast, judicial restraint is more about the destination than the journey. If court rulings are having the practical effect of demolishing plans or sowing confusion, then they are unrestrained—no matter their method.
Singletons in film
Much deserved praise is being heaped on the new Pixar film Inside Out, which is setting all sorts of box-office records and gaining all sorts of critical acclaim. It has earned praise for (finally) featuring a lead female character (arguably 3 of them) who is not a princess, who likes sports, and who seems like a typical kid. It is a comprehensible visualization of how emotions and the brain genuinely work--the producers consulted with neuroscientists, psychologists, and other smart people, who have talked about what the film captures. And it makes parents cry about their children (especially daughters) growing up.
I want to mention one side point, which is not central to the story or its consequences, but still worth noting: Riley, the 11-year-old lead character, in whose head the action takes place, has no siblings (I hate the term "only child" and find "singleton" better, if essentializing). And this is presented in the film without remark or commentary. This is a story about a "typical" preadolescent girl who is happy, good natured, well-adjusted, close with her parents, has friends--all traits not associated with the stereotype of the spoiled or lonely singleton (all of which have been debunked, but which still carry cultural resonance). What she experiences in the film--as she becomes moody and isolated--is depicted as the ordinary work of ordinary emotions and growing up. And I was happy to see that the filmmakers did not feel the need to throw in an annoying younger brother, either for comic relief or to create a "complete" family.
Parents and one child can a family, with a happy child, make. I just like to see pop culture catch up with that idea. Or better yet--not even have to mention it.
Strange Bedfellows #10: Why So Tense?
This post is part of the Strange Bedfellows series.
A few blockbuster cases remain for SCOTUS to decide this term, and given the current make-up of the Court, this means a high likelihood of fire-breathing dissents. Teachers—and particularly casebook authors—need to decide which lessons, if any, to draw from these dissenting opinions. For myself, I always like to spend some time on at least a few throughout the semester, for what they teach us about the substance of the law and about the art of advocacy.
The substantive lesson comes in large part from considering which cases provoke verbal fireworks and which do not. At the outset, constitutional law is more likely than other legal subjects to provoke heat, and within the Con Law canon some topics provoke more flame wars than others. The flamer is trying to signal that something important is happening, so a suitable question for the class can be “why are they so upset?” This is especially valuable when a case that seemingly involves low stakes provokes what seems like a rhetorical overreaction, as in Caperton v. Massey Coal (2010) (judicial recusal) or BMW of North America v. Gore (1996) (punitive damages).
The advocacy lesson is equally important. The rhetoric in court opinions is worth teaching to law students not as literary criticism for its own sake, but as a model of lawyerly writing. Since we tend not to assign actual briefs to our students written by lawyers, their main exposure to persuasive legal writing takes the form of opinions written by the lawyers on the bench we call judges. When an opinion exhibits a style that deviates from the mean, it can be a good opportunity to discuss whether it was effective, and whether students should pursue a similar tone in their own submissions. My students may just be telling me what I want to hear, but they usually say that bluster turns them off—even though really good bluster can be pretty exciting. Good opinions for this kind of discussion include Justice Scalia’s dissents in Planned Parenthood v. Casey (1993) and US v. Virginia (1996), and Justice Blackmun’s self-involved hand-wringing in Casey and DeShaney v. Winnebago County (1989).
As a casebook author, I faced the question is how much to leave in. For Caperton (discussed in an earlier post in this series), I retained almost all of the dissents of Chief Justice Roberts and Justice Scalia, largely because both strive for Biblical stature in way that skeptics might consider borderline clownish. To demonstrate that the majority's constitutional rule (mandating judicial recusal when there is an objectively perceivable probability of bias) would be unworkable, Chief Justice Roberts posed a list of forty questions that would need to be resolved in future cases. Think forty days and forty nights, or forty years in the wilderness. Most casebooks seem to edit down the list; you get the point pretty quickly. But I decided to keep the whole thing (four pages worth)—because it is revealing to ask students during class how many of them actually read all forty. The honest ones will admit they skipped it, just as I did the first several times I read the opinion. The overblown Roberts dissent presents a good opportunity to discuss when less is more.
As for Justice Scalia’s Talmud-quoting dissent in Caperton, I kept it largely for his last sentences, which were these: “The relevant question, however, is whether we do more good than harm by seeking to correct [state courts] through expansion of our constitutional mandate in a manner ungoverned by any discernable rule. The answer is obvious.” (emphasis added) Anytime somebody tells you the answer to a contested legal question is obvious, or that a question answers itself (as in the inexplicable Goesaert v. Cleary (1948), discussed in an earlier post), it’s time to reach for your revolver.
Wednesday, June 24, 2015
In Anticipation of Glossip
I’m excited. Not like Harry Potter World excited, but excited in that geeky, purely academic way that sometimes feels inappropriate in the death penalty context. The Supreme Court will issue its ruling in Glossip any day now, and certainly within the next 7 days. What will the Justices do?
I posted a comment earlier titled why is Glossip hard? so yeah, you could say I have a point of view. In this post, I’ll pick up where I left off, and think a bit more about what seems to be making this easy case hard, at least for the Court’s conservatives: abolitionist sentiment.
The reason the Court is stuck considering the constitutionality of midazolam in lethal injection protocols is that the states are stuck using it. More effective drugs—sodium thiopental, pentobarbital (of the uncompounded variety), and propofol—have all been taken off the market, or at least out of executioners’ hands, by the companies that make the drugs.
Why? In part it’s because abolitionists have played the ‘name and shame’ game, calling out drug companies whose mottos include “advancing wellness” for selling their drugs to put people to death. And in part it’s because European governments, which have long been abolitionist, have tightened their export controls. So yeah, it’s fair to say abolition sentiment of one variety or another is behind the current shortage of death dealing drugs.
Los Angeles v. Patel: A Successful Fourth Amendment Facial Attack
The Fourth Amendment protects "people, not places", but in applying it the courts seem to care quite a bit about places, too. As Jason Miller's explains in his useful note in the Seton Hall Circuit Review, while the Fourth Amendment principles behind hotel room searches are the same as behind any search (reasonable expectation of privacy awards standing for overnight guests), but hotels pose special fact-sensitive challenges, including registration under an alias, registration for a third party, paying with a fradulent credit card, exceeding checkout time, and the classic from Minnesota v. Carter--booking a room solely for the purpose of bagging cocaine.
But this week's decision in Los Angeles v. Patel required the Supreme Court to examine hotel searches via a different prism. This was not a motion to dismiss evidence or a §1983 lawsuit, but rather a facial challenge brought by motel owners against a Los Angeles city ordinance that requires them to maintain a careful registration of hotel guests' names, makes of cars, photo ID for cash payers, and sometimes credit card information. The information needs to be kept for 90 days and--which is the provision at issue in Patel--made "available to any officer of the Los Angeles Police Department for inspection,” provided that “[w]henever possible, the inspection shall be conducted at a time and in a manner that minimizes any interference with the operation of the business.” Failure to comply, a misdemeanor, is punishable by up to six months in jail and a$1,000 fine.
The reasoning for the ordinance are fairly obvious: in his dissent, Justice Scalia explains that "The purpose of this recordkeeping requirement is to deter criminal conduct, on the theory that criminals will be unwilling to carry on illicit activities in motel rooms if they must provide identifying information at check-in. Because this deterrent effect will only be accomplished if motels actually do require guests to provide the required information, the ordinance also authorizes police to conduct random spot checks of motels’ guest registers to ensure that they are properly maintained." But it is also understandable that motels are well aware of other reasons why their clientele might not wish to be exposed in the registry, and see the ordinance as an interference with their business model (apparently, there's a whole line of hotels called "Mr. and Mrs. Smith"!).
Can they successfully challenge the Fourth Amendment, even though in any individual guest's case the police might be able to search a room with a warrant or a recognized exception? By a 5:4 majority, the Supreme Court answers this question in the affirmative.
Policing False Speech in Political Campaigns
I'm working on the update memo for my Mass Media Law casebook while simultaneously working on a new edition, which means I'm coming across some interesting cases I missed when they came out. One of these is Eighth Circuit's decision in 281 Care Committee et. al. v. Arneson, No. 13-1229 (Feb. 13, 2014), which strikes down a Minnesota law attempting to assign administrative law judges and county attorneys the job of policing the truth of statements partisans make for or against ballot initiatives. Arneson involved a challenge by advocacy organizations to the constitutionality of a Minnesota law making it a gross misdemeanor for a person to prepare or publish a political advertisement or campaign materials supporting or criticizing “a ballot question, that is false, and that the person knows is false or communicates to others with reckless disregard of whether it is false.” Minn.Stat. sec.211B.06, subd. 1. Under the statute, any person can trigger an investigation by an administrative law judge to determine whether probable cause supports the complaint. Upon such a finding, the ALJ may refer the case to a panel of three ALJs for further determination or may refer the matter to a county attorney to prosecute.
A district court held that the statute served a compelling interest in preserving fair elections and preventing frauds on the electorate. The U.S. Court of Appeals for the Eighth Circuit reversed. The Eighth Circuit held that the advocacy organizations had standing to challenge the statute and that the statute was a content-based regulation of political speech that violated the First Amendment. The district court, citing the plurality and concurrences in United States v. Alvarez (striking down the Stolen Valor Act), determined that the appropriate constitutional standard was intermediate scrutiny, but the Eighth Circuit distinguished Alvarez because it did not involve core political speech; moreover, the court noted that the false assertion criminalized by the Stolen Valor Act--that one received a military honor one did not receive--is verifiable objectively. In contrast, the Minnesota law targeted "false" political speech that was likely to include opinion or other unverifiable political speech. The court therefore concluded that strict scrutiny was the appropriate standard to judge the Minnesota law.
Applying strict scrutiny the court determined that, regardless of whether Minnesota’s interests in passing the statute were compelling, the statute was neither necessary nor narrowly tailored but instead was “simultaneously overbroad and underinclusive, and [was] not the least restrictive means of achieving any stated goal.” The court bolstered this conclusion by observing that the State had failed to show “an actual, serious threat of individuals disseminating knowingly false statements concerning ballot initiatives.” Furthermore, and more central to the court’s analysis, was its determination that the statute “tends to perpetuate the very fraud it is allegedly designed to prohibit.” As the court cannily deduced, the Minnesota statute lends itself to use by political adversaries seeking to undermine the message of their opponents. Filing a complaint against one’s opponent can be used as a political tool to undermine the opponent’s message and force the opponent to “’to devote time, resources, and energy defending themselves.’” All of these strategic political goals can be accomplished by a complainant whether or not his or her complaint is meritorious. The filing of the complaint itself becomes a news item and casts doubt on the credibility of the speaker, and the investigation takes up time and money even if the investigation ultimately terminates in one’s favor.
Strange Bedfellows #9: The Frame Game
This post is part of the Strange Bedfellows series.
The Con Law canon contains many opportunities to teach how the choice of frame greatly can affect the outcome of a case. In many cases, an advocate’s first and most important task is to convince the judge properly fill in the blank in the following sentence: “This is a case about ____.”
My favorite example is Johnson v California (2005), where a prisoner objected to a state department of corrections policy to house inmates with cellmates of the same race. The majority filled in the blank by concluding that “This is a case about race,” which meant that strict scrutiny applied. The dissenters filled in the blank by concluding that “This is a case about prisons,” which meant that a standard much more deferential to governmental decisions would apply. Nothing in existing law forced the court to choose one frame or the other, making Johnson a great opportunity to explore methods of persuasion with students. What would you say to convince the judge to use your frame instead of your opponent's?
The frame game inevitably reveals itself in many canonical substantive due process cases, but it can also be woven into discussions of cases arising under many different doctrines.
Fifty Years of Criminal Procedure – the Subject and the Casebook
The following guest post comes from regular reader and commenter Orin Kerr (GW and The Volokh Conspiracy) and is sponsored by West Academic.
Fifty years ago, in 1965, a young professor named Yale Kamisar paired with a more established professor named Livingston Hall to publish a new casebook that introduced a new academic field. That casebook, Modern Criminal Procedure, was the first casebook about a then-new field of criminal procedure. When the first edition was published, the Warren Court was in the midst of its so-called “criminal procedure revolution.” Mapp v. Ohio was four years old, and Gideon v. Wainright was two. Massiah v. United States and Escobedo v. Illinois were hot off the presses (literally). Miranda v. Arizona would follow the next year, with Katz v. United States the year after that and Terry v. Ohio the year after that.
Tuesday, June 23, 2015
Thomas More's advice for bloggers
Yesterday, for some, was the feast day of St. Thomas More (patron saint of lawyers and statespersons). It turns out, he was also pretty prescient w/r/t social media. Here is some advice from him for bloggers!
An excerpt from a letter of St. Thomas More to Erasmus, written on the 14th of June, 1532:
Congratulations, then, my dear Erasmus, on your outstanding virtuous qualities; however, if on occasion some good person is unsettled and disturbed by some point, even without making a sufficiently serious reason, still do not be chagrined at making accommodations for the pious dispositions of such men. But as for those snapping, growling, malicious fellows, ignore them, and, without faltering, quietly continue to devote yourself to the promotion of intellectual things and the advancement of virtue.
(HT: Ryan Patrico).
Openness to Discuss Prison Conditions: Will SCOTUS Deliver on its Promise?
Yesterday marks the second time in a week in which Supreme Court opinions that did not directly involve incarceration conditions included dicta that signaled readiness to hear and discuss them.
The first one was Justice Kennedy's concurring opinion in Davis v. Ayala, which I discussed in a previous post. There, Justice Kennedy offers a reminder that the respondent spent a quarter century under solitary confinement, and discusses the evils of these prison conditions.
The second one came yesterday, in Kingsley v. Hendrickson, which did not involve an inmate, but rather a pretrial detainee who sued jail officials for excessive use of force. Given the Bell v. Wolfish determination that pretrial detention did not count as "punishment", Kingsley could not recur to the Eighth Amendment, and instead made a Fourteenth Amendment due process claim. In a 5:4 decision split along predictable lines, Justice Breyer sided with Kingsley, finding that the appropriate test for use of force situations in pretrial detention is an objective test.
We acknowledge that our view that an objective standard is appropriate in the context of excessive force claims brought by pretrial detainees pursuant to the Fourteenth Amendment may raise questions about the use of a subjective standard in the context of excessive force claims brought by convicted prisoners. We are not confronted with such a claim, however, so we need not address that issue today.
Could the proximity of these two posts be contributions to Jonathan Simon's "dignity cascade"? The real test, I expect, will be when claims about prison conditions are brought directly, rather than acknowledged in passing in other contexts.
To Start a Race War: Dylann Roof and White Supremacy
The mass murder of parishioners at the historic Emmanuel African Methodist Episcopal church in Charleston, South Carolina law week, by a young white supremacist intensified the already profound national conversation about racism and violence that has been building since the killing of unarmed teenager Trayvon Martin in 2012. There are more topics in play around Charleston than any single post (even an over long one like this) can address. So a couple of brief points before an extended discussion of one question, already taken up here on Prawfsblawg by Rick Hill (but I come out a bit different). whether to categorize the act as one of terrorism or as an example of a mentally deranged or ill person taking an otherwise unthinkable action. My answer, we its an act of terrorism that calls for a political response, but we need a more complicated framework to think about how mental illness and acts rooted in diseased ideation can parallel acts of terrorism.
Monday, June 22, 2015
Strange Bedfellows #8: Precedential Floors and Ceilings
This post is part of the Strange Bedfellows series.
The strange bedfellows presented so far in the series have been pairings of cases that reveal something interesting or unexpected about the substance of constitutional law. But as we all know, courses in Constitutional Law are required at most schools only in part for their substance. Since the substance is subject to (comparatively rapid) change, much of the value in the course is in how it can teach the set of legal skills necessary when dealing with a controlling text that where “majestic generalities” predominate. The next few posts looks at cases that could be taught together (or at the very least, linked together orally if not taught the same day) for their similarities of legal reasoning.
A recurring issue in any young area of law—and US Constitutional Law is young when compared to the common law topics like contracts and property—is how to reason from sparse precedents. Specifically, in an area with only a handful of decisions on point, do those precedents represent a ceiling or a floor?
The question is presented unusually cleanly in Caperton v. Massey Coal (2012), which asked whether an elected judge violated procedural due process by failing to recuse himself from a case where one of the litigants had spent millions on advertising to put that judge into office. Two earlier SCOTUS decisions involved the due process ramifications of judicial recusal. Tumey v. Ohio (1927) found that it violated due process for a judge sitting without a jury to decide cases under a system where his compensation would be greater if he convicted than if he acquitted. (As it happens, this structure was also part of the federal Fugitive Slave Act of 1850, but the due process implications were not explored at the time.) In re Murchison (1955) found that a due process violation where a judge tried a criminal contempt charge that occurred before him during an atypical grand jury proceeding. For the Caperton majority, these two cases represented a floor: due process might require recusal in other settings as well. For the Caperton dissenters, the two cases were a ceiling: “Until today,” wrote Chief Justice Roberts, “we have recognized exactly two situations in which the Federal Due Process Clause requires disqualification of a judge.”
Query: In choosing a casebook for your class, to what extent is the book's cost (to the students, of course) a consideration for you?
Walker meets Wooley
In last week's Walker v. Sons of Confederate Veterans, SCOTUS held that specialty license plates constitute government speech, meaning the state can exclude or include whatever groups or messages it wishes, regardless of how viewpoint discriminatory it is being. This basically resolves controversies currently pending in several states over pro-choice/anti-choice license plates--the state can do what it wants. It can allow for both messages, exclude both messages (albeit for different reasons than the Second Circuit relied on in upholding New York's blanket exclusion of messages relating to controversial political subjects, such as abortion), or exclude one and include the other. The Fourth Circuit is currently considering a challenge to North Carolina's program, which offers a "Choose Life" plate but rejected a plate in support of reproductive freedom. Walker ends that dispute and requires that the state's program be upheld The Fourth Circuit last year held invalidated North Carolina's program allowing for a "Choose Life" plate but not a corresponding plate in favor of reproductive freedom; a cert petition is pending.
So is there any way for a person in North Carolina to use a license plate to display a message in support of reproductive rights when the state refuses to allow that specialty plate? How about this: Pay for the "Choose Life" plate, then make a conspicuous show of placing tape or something else to cover the anti-choice logo. The First Amendment allows a driver to cover the state-speech motto on the plate, as the state cannot compel a driver to serve as a "'mobile billboard'" for the State's ideological message." Under Walker, "Choose Life" is the state's ideological message for Wooley purposes, which a driver cannot be compelled to display. The obvious way not to display the state's message is to not purchase the "Choose Life" plate, which the state does not compel (unlike New Hampshire's general "Live Free or Die" plate). On the other hand, if the state did compel that as its sole license plate, a person unquestionably could cover the logo.
It follows that First Amendment should also protect a person who combines those options: Pay the extra money for the specialty plate specifically so she can cover the state's message.* Covering a state-sponsored message with which a person disagrees involves a protected message that is different from declining to purchase and display that message in the first instance. Additional meaning flows from the person not just counter-speaking to the state message, but using the state message as the vehicle for the counter-speech. For a stark comparison, an individual is not obligated to purchase or display an American flag, although she may choose to purchase it so she can set it on fire. Each presents a different message that a speaker is entitled to put forward. Given that difference, the state should not be able to successfully argue that the driver lost her right to cover the slogan, a la Wooley, because she willingly paid extra for the plate with that slogan.
[*] There is a separate question of whether anyone would want to do this. My understanding is that in some states, a portion of the money for some specialty plates goes to the cause reflected on the plate. So a supporter of reproductive freedom will not buy the "Choose Life" plate, even to make the statement of covering the logo, if the money is going to anti-choice causes.
Sunday, June 21, 2015
In Memoriam, Roderick M. Hills, Sr.: Fathers' Day Thoughts on Work-Family Balance
My Dad died last Fall. I have always admired how he lived his life, and, on this Father’s Day, I would like to share some thoughts about one important aspect of his personality that might have special interest for young lawyers and law students: Dad’s arguably irrational exuberance about his work. His boundless optimism and excitement about his professional life (as a lawyer, government official, anti-corruption crusader, among other things) had its costs – most obviously as a distraction from his four kids. But it had benefits for us kids as well. After the jump, I’ll offer some reasons for why a father’s love of his work can be an important part of what it means to a good father.