Monday, March 18, 2013
Two items of interest involving SCOTUS (not having anything to do with one another, except relating to SCOTUS's docket):
1) The Court today granted cert in Madigan v. Levin, which considers whether state and local employees can bring constitutional claims of age discrimination through § 1983 rather than going through the ADEA. The Seventh Circuit said they could, a departure from several other circuits. But most of those decisions came before SCOTUS' 2009 decision in Fitzgerald v. Barnstable Sch. Comm., where the Court held that a student could bring sexual harassment claims against a school and school officials under both Title IX and the Constitution. Fitzgerald emphasized the differences between the constitutional and statutory claims--including the identities of liable defendants and the applicable legal standards. The Seventh Circuit was the first court to apply Fitzgerald's analysis to the ADEA or other employment discrimination statutes.
The logic of Fitzgerald means the Seventh Circuit should be affirmed. Plus, I spent time in my book on § 1983 litigation discussing Levin as the appropriate application of Fitzgerald to other civil rights laws. I hope the Court doesn't somehow make me look bad on this2) Mike Dorf discusses Holingsworth and Windsor, arguing that these cases are not likely to trigger massive resistance (a la the response to Brown) and thus are not appropriate for Bickelian passive virtues or Sagerian underenforcement. I agree with Dorf that if the Court recognizes a broad right to marriage equality, massive resistance is nearly impossible to imagine. But it is worth considering why.
The key is, what would massive resistance to Hollingsworth look like? Implementing Brown (even if the Southern states had actually tried to implement it in good faith) required a massive restructuring of the state educational system. And faced with resistance, federal courts felt hampered in their ability to compel compliance, given the costs and burdens involved. Whether or not those were legitimate reasons for the courts to stay their hand (either in Brown or later), the concerns are absent as to marriage equality. A decision in Hollingsworth holding that the 14th Amendment requires marriage equality would involve states issuing licenses when people ask for them, without any fundamental change to institutional structures. I suppose all the officials in a state could conspire to not issue licenses to same-sex couples. But any such resistance could be remedied with a simple injunction ordering compliance, an order that federal courts would be more willing to issue and vigorously enforce, since it would not impose great (or, for that matter, any) costs on the state.
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Might also be worth flagging the fascinating jurisdictional issue lurking beneath the surface in Levin, since the Seventh Circuit reached that issue on an interlocutory (qualified immunity) appeal in which it _rejected_ the officer-defendants' entitlement thereto! Indeed, Levin's a pretty good example of the pendent appellate bootstrapping that the Court has sanctioned as of late (and that might provide a basis for the Court to duck resolution of the circuit split)...
Posted by: Steve Vladeck | Mar 18, 2013 3:44:10 PM
(For more on the pendent appellate jurisdiction point, see http://greenbag.org/v16n2/v16n2_articles_vladeck.pdf).
Posted by: Steve Vladeck | Mar 18, 2013 3:44:48 PM
Did the Court grant cert. on that issue?
Posted by: Howard Wasserman | Mar 18, 2013 10:27:11 PM
No, but they hardly need to have granted cert. on the jurisdictional issue to reach it so long as a defect in the Court of Appeals' jurisdiction also creates a defect in the Court's jurisdiction, right?
Posted by: Steve Vladeck | Mar 19, 2013 9:32:12 AM
Of course. I was just curious if the Court had flagged the issue or otherwise indicated an intent to explore it. Obviously it may still come up.
Posted by: Howard Wasserman | Mar 19, 2013 9:41:47 AM
Court should grant cert as soon as possible...
Posted by: Solicitors in Luton | Mar 21, 2013 9:39:27 AM
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