Thursday, August 27, 2015

Decision time

The Sixth Circuit has declined to stay the injunction against the County Clerk of Rowan County, Ky; her office is refusing to issue any marriage licenses, citing religious liberty, to avoid having to issue licenses to same-sex couples. The court was emphatic that there was "little or no likelihood" that the clerk would prevail on her appeal. Because the injunction runs against the clerk in her official capacity and thus against the clerk's office, "it cannot be defensibly argued that the holder of the Rowan County Clerk’s office . . . may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court."*

[*] I would have put this point slightly differently, although the basic idea--the clerk is going to lose--is right.

So we now are set for the clerk to be held in contempt, which, as I said before, is what she and many others in this post-Obergefell crusade probably have wanted all along. Look for her to be featured in a new Ted Cruz video very soon.

Posted by Howard Wasserman on August 27, 2015 at 12:17 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Wednesday, August 26, 2015

Do not go gentle into that Nebraska night

Nebraska has asked the Eighth Circuit for rehearing en banc on whether the challenge to its same-sex marriage ban is moot in light of Obergefell and its promise to comply. The court earlier this month rejected the argument, concluding that Obergefell only spoke to the bans from Kentucky, Tennessee, Ohio, and Michigan and that whatever the state's promises not to enforce, the marriage ban remains on the books. Interestingly, the rehearing petition is even more explicit that this is all about denying the plaintiffs prevailing-party status and eligibility for attorneys' fees.

I have written previously about why I do not believe these cases are moot--or at most the appeal is moot, but plaintiffs retain prevailing-party status because they previously obtained a preliminary injunction. I will add here  that under my conception of departmentalism and the nature of precedent, Obergefell is largely beside the point for the state. Because precedent (even from SCOTUS) is not legally (as opposed to practically) binding on state officials' real-world conduct, that decision is not compelling them to do anything. What we have here is simple voluntary cessation, prompted by precedent and the state's voluntary choice to follow that precedent (rather than waiting until a court applies Obergefell and enjoins them). And voluntary cessation is generally not sufficient to moot a case. Ironically, then, this approach--which most civil-rights supporters likely would find anathema--is beneficial to plaintiffs trying to avoid mootness caused by new precedent.

One more thought, courtesy of Josh Blackman, my co-author: The state seems to spending a lot of money on this side issue. Simply put, the state is gambling: If it works, they lessen (and perhaps, although likely not, eliminate) all attorneys' fees; if it doesn't, they are driving those fees up even more. Of course, as Joanna Schwartz suggests, having to pay may not matter much to the government.

Posted by Howard Wasserman on August 26, 2015 at 06:12 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (3)

Saturday, August 22, 2015

The hole in Mireles v. Waco

One of the cases that sets students off in my Civil Rights class is Mireles v. Waco, in which the Court held that a judge enjoyed absolute immunity from a § 1983 suit that he ordered courtroom deputies to use excessive force in bringing a lawyer into the courtroom. They are particularly put off by the suggestion that the judge' absolute immunity means the plaintiff should sue the officers who used excessive force and who are not entitled to absolute immunity (although they likely can succeed on qualified immunity, as they reasonably could have believed their conduct was lawful because ordered by a judge).

That gap leads to Demuth v. County of Los Angeles, in which a Ninth Circuit panel (per Judge Kozinski) held that a deputy sheriff was not entitled to qualified immunity when he arrested an assistant public defender (at her own snarky request) in carrying out a judicial order to bring the attorney into the courtroom. There are a number of distinctions between this case and Mireles, including, as the court emphasized, that the judge did not order the deputy to arrest or otherwise force the attorney into the courtroom (the precise order was to bring the attorney and, if she refused, to bring her supervisor). The implication is that the deputy would have had immunity had the judge ordered the arrested.

Judge Kozinski closes the opinion by insisting that the case was an unfortunate waste of time and money over damages that "seem hardly more than nominal," which could have been resolved by "an admission that the deputy violated Demuth's constitutional rights, followed by mutual apologies and a handshake." (In fact, the deputy conceded that he did violate Demuth's rights in arresting her). The sticky point was qualified immunity, which officers assert even to avoid nominal damages. So while this seems an extreme case, it is a good example supporting Jim Pfander's argument that if a plaintiff explicitly seeks only nominal damages, the action should be treated as one for an injunction and qualified immunity should not be available. This gives us deterrence of this sort of small-scale violations* without imposing the fear of personal liability and chilling effect that justifies qualified immunity.

[*] In the absence of physical injury or wrongful incarceration, many constitutional claims involve small-money injuries for brief-but-unconstitutional detentions or encounters. But those encounters are at the heart of the policing problems in Ferguson and elsewhere, which eventually blow up to something larger. So perhaps making it easier for plaintiffs to prevail on those claims offers a step towards eliminating constitutional violations, large and small.

By the way, I do not want to sound too optimistic about the decision. The court cited no similar case law, instead relying on general, well-understood principles of when an arrest is forbidden to reach the conclusion that no reasonable officer could have believed this arrest was valid. So this case feels like a good candidate for a summary reversal of a denial of qualified immunity.

Posted by Howard Wasserman on August 22, 2015 at 11:08 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (2)

Thursday, August 20, 2015

The Poor: Twice the Victims of Lochner

The build up until now:  The poor are politically powerless and unable to defend themselves in politics against laws harmful to their interests that might be motivated by antipathy toward them.  Yet the Court does not consider the poor a discrete and insular minority entitled to special judicial protection from democratic politics.  What gives?  I think the explanation for this anomaly can be found in Lochner.  The case for which several tomes have been written involved a challenge to a regulation that limited the number of hours bakers could work.  The Supreme Court struck down the regulation explaining that it infringed on the Due Process liberty of contract.  An underlying assumption seemed to be that employees had the market power to negotiate contracts that protected their health and well-being thus rendering regulations of work conditions arbitrary and unnecessary.   Over the next thirty years, courts struck down many laws designed to protect mostly poor workers and other vulnerable participants in the capitalist market economy - these groups were the victims of the Lochner era. 

Then came the political reaction and judicial repudiation of the Due Process liberty of contract.  After the supposed "switch in time that saved nine," the Court in a series of opinions in the late 1930s and early 1940s determined that it was not consistent with the judicial role for it to intervene into economic and social welfare legislation.  Rather than closely scrutinizing such laws to see if they violated the Due Process Clause, the Court held that it would only apply rational basis review to such democratic actions.  Most of the focus has been on the Court's repudiation, at least for the moment, of the notion that the Due Process Clause protected a substantive right against arbitrary interference.  But another part of the Lochner repudiation was the Court's rejection of heavy handed judicial intervention into the democratic process through the close scrutiny and usual invalidation of democratically enacted laws.  More (including an Alanis Morisette shout out) below the fold ...

For democratic actions protective of the poor, the repudiation of heavy handed judicial intervention is perhaps a good thing.  But the reaction to Lochner has since been used as an excuse to not closely scrutinize economic and social welfare legislation harmful to the poor and other vulnerable participants in the market economy.  In a series of cases in the 1970s, the Court determined that deferential rational basis review was the appropriate level of scrutiny for economic and social welfare legislative actions, even if such actions were harmful to the poor and other vulnerable groups.  To closely scrutinize these legislative actions would require the heavy handed judicial intervention into democratic politics that led to the  crisis of judicial legitimacy during the Lochner era that the Court wanted to avoid. 

And there is something to that concern.  Say the Court determined that the poor were a suspect class because members of the group lacked the political power to defend themselves in democratic politics.  The Court would then have to closely scrutinize state actions imposing fees on the use of government goods and services, reducing government benefits such as welfare, food stamps, and Medicaid, and increasing taxes on lower income individuals.  The Court, with memories of Lochner floating in its head, doesn't want to be in the business of closely scrutinizing such laws. 

The poor and other vulnerable members in our capitalist market economy have thus been victimized a second time by Lochner, this time by the judicial reaction to Lochner.  As Alanis Morissette might question: Isn't it ironic, don't you think?  While I have lost all capacity of understanding what is truly ironic after that song,  might this be the irony of Lochner, don't you think?  What this reaction to Lochner suggests is that the Court is unwilling to provide special judicial protection to the poor not because they have the capacity to defend themselves in democratic politics.  But rather because there are too many laws that negatively impact the group.   

Surely this is unsatisfying, at least for some of us.  Even if we are concerned about too much judicial intervention into democratic politics, it certainly does not seem to be consistent with American republican values to simply leave a vulnerable minority group unprotected, subject to the vagaries of ideological winds.  But if we accept the Court's preferences as legitimate, is there a way to provide judicial protection to the politically powerless and vulnerable poor while avoiding such extreme judicial intervention into democratic politics?          

Posted by Bertrall Ross on August 20, 2015 at 12:21 PM in Constitutional thoughts | Permalink | Comments (5)

Tuesday, August 18, 2015

Settlement in Hood County, TX

A couple initially denied a marriage license by the County Clerk of Hood County, TX, has settled the lawsuit, recovering more than $ 44,000 in attorney's fees.

On one hand, as I argued here, the availability of attorney's fees will make "resistance" to Obergefell quite expensive and, eventually, unpopular. On the other hand, how did the plaintiffs in this case rack up that much in attorney's fees? The office issued them the license a few hours after the complaint was filed, so the only expenses to that point should have been drafting and filing the complaint, which could not possibly cost that much. And settling seems an odd move by the county here, since the case should have been moot once the license issued.

Posted by Howard Wasserman on August 18, 2015 at 09:52 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (3)

Monday, August 17, 2015

Show Me a Hero

If you don't think civil rights litigation can make a good mini-series, check out HBO's Show Me a Hero, co-written by The Wire's David Simon. The series tells the story of the housing desegregation litigation in Yonkers, N.Y., in the 1980s and efforts by the city to fight an injunction requiring the building of 200 units in the white part of town. The six-hour program airs in three two-hour blocks on Sundays; the first aired last night (and will be repeated throughout the coming week). Some highly positive reviews here, here, and here. SCOTUS got one crack at this case in Spallone v. United States, in which the Court reversed a district court order imposing contempt fines against individual members of the city council for refusing to vote to approve a long-term housing plan that would spend federal dollars as required by the original injunction.

Based on the first two hours, this is definitely worth the viewing time.

Posted by Howard Wasserman on August 17, 2015 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Friday, August 14, 2015

Why marriage licenses?

A question about the religious opt-out arguments surrounding same-sex marriage. Note that I ask this question as someone who does not believe such opt-outs should be allowed and who believes that clerks and other public officials should lose these cases. I also ask as someone who does not share the particular religious views driving the discussion:

What is so special about issuing marriage licenses?

All of the action has been around clerks and clerks offices having to issue licenses to same-sex couples and demanding opt-outs from that ministerial task based on deeply held religious beliefs. But it seems to me that public officials and employees are required to process and handle all sorts of forms, requests, and documents that require them to recognize and treat as married same-sex couples. And this would seem to be just as much in violation of their deeply held religious beliefs. To name just a few:

• Granting a second-parent adoption to a same-sex couple (which requires a finding that the adopting parent is the spouse of the biological parent)

• Processing a death certificate listing a same-sex spouse (this was the claim at issue in Obergefell itself)

• Processing the paperwork for a person to receive health insurance and benefits from her state-employee same-sex spouse

• Processing a name change on a drivers' license for a same-sex couple who married and want to combine names or where one person wants to take the other's name

• Processing a joint tax return for a same-sex couple

I am sure there are others that I am not thinking of. And that is before we get into private actors and public-accommodation laws. Or less misiterial issues, such as police officers responding to domestic-violence calls or hospital staff allowing a person to make medical decisions (without a written advance directive) from a same-sex spouse. Yet we do not hear about similar opt-out requests in any of these contexts. And when state officials, such as Texas AG Ken Paxton, endorse these accommodations, they only spoke about protecting against having to issue licenses and never these or similar duties.

Wouldn't the religious-objection logic apply equally to each of these situations? And if not, why not?

Posted by Howard Wasserman on August 14, 2015 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (7)

Thursday, August 13, 2015

A first take on recalcitrant county clerks

Judge Bunning of the Eastern District of Kentucky preliminarily enjoined the county clerk of Rowan County from enforcing a policy of declining to issue all marriage licenses so as to avoid having to issue licenses to same-sex couples. This is the first detailed challenge to a county clerk refusing to abide by Obergefell and state orders to comply with Obergefell.

Update: The office turned away a same-sex couple (although not the plaintiffs) this morning (H/T: Josh).

Thoughts after the jump.

1) The policy involved here was especially broad. The clerk did not argue that she should not personally have to issue licenses but that another staffer in the office would. Rather, she objected to licenses being issued in her  name as the county clerk, insisting that doing so both compelled her to speak and cause her to endorse and enable conduct that violates her religious beliefs.

2) The case was less about Obergefell than about the general fundamental right to marry (which, under Obergefell, applies equally to same- and opposite-sex couples). The right was substantially burdened for all couples either having to go to a neighboring county to receive a license or get the license from the county judge (who is authorized to issue licenses if the clerk is unable to do so). Interestingly, unlike the Fifth Circuit in the clinic-regulation cases, the court recognized that requiring people to travel (perhaps as long as an hour) to another county could burden those who like the financial, physical, or practical means to travel and thus should not be considered a less-burdensome alternative.

3) The court held that Kentucky county clerks act as state, rather than county, officials in making office policies with respect to issuing marriage licenses. This does not affect an action for injunctive relief. But it does affect the potential for plaintiffs to pursue damages against recalcitrant officials and offices, which is another tool for ensuring compliance with Supreme Court precedent. Damages are not available against state (as opposed to local) entities, so the clerk's office cannot be sued for damages,* although the clerk herself could be sued both for her own refusal to issue licenses, as well as for her role in supervising or ordering her employees not to issue licenses. But being able to sue the office means the plaintiffs would not have to deal with qualified immunity, which is not available to municipalities. The clerk herself can raise qualified immunity, which means damages are not going to be available, at least until a significant body of law builds up.

[*] The court here attributed it to the Eleventh Amendment, a common and unfortunate mistake. Section 1983 (the source of a constitutional damages action) is § 5 legislation that, at least in constitutional cases, is congruent and proportionate to the rights protected by § 1 of the Fourteenth Amendment. The problem is that the Court held that Congress did not abrogate sovereign immunity because "persons" in § 1983 does not include sovereigns. But, as the doctrine developed, Congress could have done so. Thus, the unavailability of damages against the state on constitutional claims is a product of statutory interpretation, not the Constitution.

Update: Note the nuance with respect to the couple denied the license this morning. The clerk is not in contempt because the injunction only protects the five named couples and only obligates her to issue licenses to those five couples. This new couple has to go back to Judge Bunning (either in a new lawsuit or by intervening) and have the injunction extended. Then someone can hold the clerk in contempt--which, frankly, is exactly what she is hoping will happen.

Further Update: This story reports that one of the plaintiff couples (including the named plaintiff) also tried to get licenses on Thursday and were denied. And now the clerk can be held in contempt.

Posted by Howard Wasserman on August 13, 2015 at 09:36 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (3)

Wednesday, August 12, 2015

The Process of Marriage Equality

The Process of Marriage Equality, co-authored with Josh Blackman (South Texas), is now up on SSRN and coming to a journal office near you. This is a comprehensive take on the unique civ pro/fed courts/jurisdiction issues that arose during the litigation campaign leading to Obergefell. It incorporates and expands on my earlier discussions of some of these issues, published here and at Northwestern Law Review Online, and the stuff Josh has been writing at his blog.

The abstract is after the jump.

This article offers the first comprehensive history of the marriage-equality litigation process leading from Windsor to Obergefell. It explores how four aspects of federal procedure and jurisdiction doctrine both enabled and frustrated marriage equality’s advance to the Supreme Court. First, we examine common misconceptions about how judgments, injunctions, and judicial precedent control real-world conduct and how litigation brings about legal reform. These misconceptions reached their nadir in Alabama in spring 2015. Guided by Chief Justice Roy Moore, Alabama officials properly declined to follow persuasive precedent, prompting unfortunate and inaccurate comparisons to George Wallace and Massive Resistance to Brown and desegregation. Second, we examine the pivotal, but underappreciated, role of stays pending appeal in constitutional litigation. In particular, we consider how denials of stays triggered concurrent races to the courts of appeals and to the altars. The Court’s transmission of signals through unexplained stays and denials of certiorari exacerbated the confusion in the lower courts and the states, highlighting a penumbra of what one scholar calls the Court’s “shadow docket.” Finally, we examine unsuccessful efforts by state attorneys to move marriage cases out of federal court by initiating state-court litigation and urging federal abstention. This article makes a first contribution to the scholarly discussion of marriage equality by focusing on the critical, but underdeveloped, procedural nuances of high-stakes civil rights litigation. By considering the process of marriage equality, we better understand this societal evolution and future constitutional revolutions. 

Posted by Howard Wasserman on August 12, 2015 at 01:49 PM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (1)

Tuesday, August 11, 2015

Following Obergefell in the lower courts

Lots of action within the Eighth Circuit in the lower courts on how to apply Obergefell to bans in other states. Judge Crabtree of the District of Kansas* issued an initial order (H/T: Lyle Denniston at SCOTUSBlog, who has a nice summary of the decision, as well as some other development). The Eight Circuit issued substantially identical per curiam orders in appeals involving laws from Nebraska, South Dakota, and Arkansas, affirming preliminary injunctions or final judgments invalidating the laws in those states.

* Which is not located in the Eighth Circuit.

Some comments after the jump.

First, Judge Crabtree nails the connection between Obergefell and this case. The SCOTUS decision "considered same-sex marriage bans enacted in Michigan, Ohio, Kentucky, and Tennessee. It did not rule, at least not directly, on Kansas’ ban against such marriages. The Court’s job now is to apply Obergefell to the Kansas law." Once he reached the merits, the judge necessarily concluded that Obergefell resolves the plaintiffs' constitutional claim and entitles them to judgment on their claims for relief. The Eighth Circuit similarly applied Obergefell to conclude that the challenged laws are unconstitutional.

Second, the courts rejected the arguments that Obergefell moots these challenges. They all recognized that, because Obergefell itself compelled no action by officials in these four states, their mootness arguments amount to promises of voluntary cessation, which typically is not enough to moot a case. The marriage bans remain on the books in every state. At best, officials in Kansas seemed to be moving towards compliance with Obergefell, but had not yet gotten there (for example, it still was not clear a same-sex married couple could file a joint tax return or change names on drivers' licenses), but had not necessarily gotten there. And the fact that officials in every state are issuing licenses to same-sex couples is not sufficient, since that was being done on the strength of a district court's original injunction.

Third, in what might be an interesting development (one I had not previously thought of), the court of appeals and district court both suggested that the states' efforts at voluntary compliance perhaps affected whether permanent injunctive relief is unnecessary or impermissible. Judge Crabtree ordered further briefing on the question and the Eighth Circuit left it to the district courts on remand. Compliance was not a question of constitutional mootness, but of the court's discretionary equity analysis. Importantly, however, this did not affect declaratory relief, which remained proper and which will be entered in every case. This is significant for purposes of plaintiffs recovering attorney's fees--a declaratory judgment, even unaccompanied by an injunction, is sufficient to make them prevailing parties.

Fourth, Kansas tried to argue that the injunction requiring the state-employee health plan administrator to include same-sex spouses in the plan violated the Eleventh Amendment because it required money from the state in the form of benefits. But the court rejected this argument quickly and correctly--this falls into the "prospective compliance" exception, under which a purely prospective injunction is not barred by the Eleventh Amendment, even if compliance costs the state money.

Update I: In response to Maureen's comment, I shorthanded the point too much. A declaratory judgment alone will not always merit attorney's fees. But in the marriage cases, it should be, as there has been a change in the defendants' behavior and in the relationship between the defendants and the plaintiffs.

Update II: An alert reader points me to Sam Bray's The Myth of the Mild Declaratory Judgment (reviewed by Marin Levy here). Sam's theory is that declaratory judgments and injunctions represent alternative remedies, each appropriate in a different type of case. Under that theory, a D/J without an injunction is the appropriate remedy in the marriage cases, which require a change of behavior but minimal judicial oversight or monitoring.

Posted by Howard Wasserman on August 11, 2015 at 05:29 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (4)

Middle ground on departmentalism

Michael Dorf discusses Mike Huckabee's (unwitting? incomplete?) endorsement of departmentalism during last week's GOP presidential debate. Huckabee explained that he considers fetuses "persons" for Fifth and Fourteenth Amendment purposes and, as Dorf understands him, would act on that constitutional understanding. And Huckabee spoke not just of pushing a personhood constitutional amendment, but of a "bolder" approach." But, Dorf argues, Huckabee did not seem to realize that "his 'bolder' option--acting to protect the rights of the unborn (rights the Supreme Court has never recognized), even when that abridges the rights of women (rights that the Court has recognized repeatedly)--was, in effect, advocacy of "uncivil disobedience by a president," bringing him into direct conflict with the Supreme Court.

But is it necessarily a conflict? And is any conflict problematic? And how might the conflict arise and play out?

In my current article (more on that in a few days), I discuss and endorse Gary Lawson's "middle ground" approach to departmentalism. Lawson distinguishes between judgments and precedent; he argues that the President must abide by and enforce the former, but remains free to disregard the latter if it conflicts with his independent constitutional vision. In other words, if the Court adopts a constitutional rule and issues an injunction requiring the President to act (or refrain from acting) in a given way, he must abide by that injunction, even if he disagrees with the Court's constitutional conclusions.*

[*] With respect to the President, there is a second component to judgments, because the President also is responsible for enforcing federal judgments even if not party to them (e.g., enforcing a federal judgment enjoining the state from enforcing an abortion ban).

But, as I have been arguing with respect to the marriage-equality litigation, the injunction applies to the specific parties in that case, but extends no further. Thus, the President's obligation to follow the Court extends only as far as the judgment in that case, but not to other cases, issues, and parties. Instead, the President can act on his independent constitutional vision, even in the face of competing Supreme Court precedent. Of course, the courts remain bound to apply Supreme Court precedent when the President's actions reach the stage of judicial challenge or enforcement. And they will apply that precedent to produce a judgment against him, which, under Lawson's theory, he will then be obligated to enforce and obey.

Lawson's departmentalism rests on the idea that what courts uniquely do is decide cases and issue judgments, which control everyone who is subject to them or their obligations. But the power to interpret the Constitution simpliciter is not unique to the courts; it instead resides in all public officials (federal, state, and local) who swear an oath to uphold the Constitution. Only when the judicial interpretation is reduced to a judgment does it become supreme--and then only within the limited scope of that judgment.

How this plays out with a President Huckabee committed to the belief that fetuses are constitutional persons depends on what he tries to do. The point is that none of the following examples should be labeled defiance or disobedience.

   • Decline to enforce a law such as the Free Access to Clinic Entrances Act, thereby allowing protesters to make it impossible (at least as a matter of federal law) for women to gain access to clinics and to exercise their rights. No real conflict here. For one thing, the Constitution does not require F.A.C.E. or require that the federal government act to protect women seeking access to clinics. This is unlikely in any event, as Dorf notes that Huckabee has indicated his belief that the President must enforce all laws, even those he disagrees with)

   • Pursue federal murder charges against a woman who terminates a pregnancy in the first month, because, in his view, this woman took a human life and should be prosecuted (put aside federal jurisdictional issues for the moment). This prosecution would be invalid under Roe. Charges are sure to be dismissed or any conviction almost certainly would be reversed or overturned. But Huckabee does not engage in "uncivil disobedience" in pursuing this prosecution. Although clear precedent renders the prosecution futile (which Huckabee certainly knows from the start), he can act on his constitutional vision in initiating and pursuing charges. Once the courts dismisses those charges in light of precedent, Huckabee must comply with that order, although  he also could initiate a new prosecution against someone else until that case is also dismissed.

   • Sign and enforce a bill outlawing all abortions in all circumstances. Again, this law would clearly conflict with Supreme Court precedent. But the point of Lawson's approach is that there is nothing unlawful about the act of signing the bill or taking steps to prosecute people under it, so long as he believes it is constitutional. This is so even if he can predict that courts will declare the law unconstitutional. Obviously, he would be immediately enjoined from enforcing the law by a district court applying Supreme Court precedent. And any efforts to enforce it almost certainly would result in dismissal of the charges. And the President must abide by those judgments as to all plaintiffs.

So why don't more presidents do this? And why would Huckabee himself likely not do this? One answer is that there are political limitations to these moves. The public perception and media reportage would be that Huckabee is disobeying or defying the Supreme Court.While incorrect (absent a specific court order in a specific case), the force of that narrative is strong and may overwhelm his constitutional convictions. The public would not countenance the President prosecuting women for murder or signing laws that everyone knows will be declared invalid. Fair enough. But Lawson's point is that this is precisely how the system should work.

The point is that it would be politics pushing Huckabee away from acting on his unique vision in the face of a competing judicial vision. Neither the Constitution nor the structure of the federal government has that effect solely on the strength of precedent, as opposed to an eventual binding judgment.

Posted by Howard Wasserman on August 11, 2015 at 09:31 AM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (27)

Monday, August 10, 2015

The Curious Case of the Suspect De-Classification of Wealth

The last episode left off with a cliff hanger of sorts: a foreign LLM student in my Con Law class asked me why we never discussed economic class and the poor?  I followed up with a question in the last blog asking why we as legal scholars do not engage class and the poor more than we do now.  One response is that legal scholarship tends to follow what the Supreme Court does.  Since the Supreme Court rarely engages economic class and the poor, neither do most legal scholars.  But why doesn't the Supreme Court address controversies involving economic class and the poor? Focusing more narrowly on equal protection doctrine, I explained to my student that we do not engage economic class and the poor because wealth is not a suspect classification and the poor are not a suspect class.  The Court only applies a very deferential rational basis review to laws that classify on the basis of wealth and there just isn't much interesting to say about rational basis review unless, of course, the review has some bite to it. This is where I show my students the famous Val Kilmer bite in Top Gun, if you don't know the scene involving Maverick and Iceman you need to check it out ... that, my friends, is the bite of rational basis review with bite.  So my answer to the student was a very simple, unsophisticated hornbook one, but one that I thought was right.  

But then the student asked: why aren't the poor treated as a suspect class?  She went through the criteria for determining a suspect class established in case law and argued that they all would be satisfied.  (1) The poor arguably share obvious or distinguishable characteristics based on where they live and what they possess (I teach that immutability has faded as a relevant criteria in light of the alienage cases and subsequent judicial broadening of the criteria to include the obvious or distinguishable nature of the trait); (2) the poor have suffered a history of discrimination; (3) being poor is not relevant to a person's ability to contribute to society (a criteria the Court used to reject claims that the disabled and the aged made for suspect class status); and (4) the poor are politically powerless.  I pushed back on each of these points, but I ultimately agreed with the student.  I then explained that the Court in San Antonio Independent School Districts v. Rodriguez declared that wealth was not a suspect classification and I encouraged her to read the case for herself as the reasoning for this determination would be provided there.  I then decided read the case for myself and discovered something quite curious.   

The Court in Rodriguez never declared that wealth was not a suspect classification.  In the case, residents of a property-tax poor school district brought an equal protection challenge to a school financing system that apportioned money to school districts on the basis of property taxes.  The challengers relying on an earlier Supreme Court case in which the Court declared that "lines drawn on the basis of wealth or property, like those of race or traditionally disfavored," claimed that the school finance system discriminated against a suspect class, the poor, and should be subject to strict scrutiny.  The Court disagreed, but not because it determined that wealth was not a suspect classification.   Instead, the Court explained that the school financing system did not actually classify on the basis of wealth.  According to the majority, the challengers "made no effort to demonstrate that [the school financing system] operates to the peculiar disadvantage of any class fairly definable as indigent, or as composed of persons whose incomes are beneath any designated poverty level."  The Court, therefore, did not need to decide whether the poor were a suspect class. 

The decision was not entirely devoid of a suspect class determination.  The Court did hold that the challengers' claim that the law discriminated "against all those who, irrespective of their personal incomes, happen to reside in relatively poorer school districts," involved a class that was too large, diverse, and amorphous to be considered suspect.  In other words, residents of a property-tax poor district, which included wealthy, middle class, and poor individuals, would not be considered a suspect class.  I re-read the case a second time, a third time, and was left floored.  How I understood the case contradicted assertions in a leading Constitutional Law casebook, Constitutional Law hornbook, and several law review articles.  Why do leading scholars cite to Rodriguez as denying suspect classification status to wealth when it never did any such thing?  Is it still an open question?

But then I read cases that cited Rodriguez and what I found was even more curious.  In the case of Maher v. Roe decided four years after Rodriguez, the Court citing to Rodriguez asserted that it "ha[d] never held that financial need alone identifies a suspect class for purposes of equal protection analysis."  All true, but ultimately unresponsive to the question of whether the poor are a suspect class.  Then in the case of Harris v. McRae decided three years after Maher, the Court without any reasoning and citing only to Maher concluded "poverty, standing alone, is not a suspect classification."  And that is end of the story of wealth as a suspect classification.  

Since establishing the suspect class standard in 1973, the Court has denied every group's claim to suspect class status.  But it has never treated any group's claim in the same superficial and disingenuous manner as it treated the claim of the poor.  Why is that the case and more importantly, perhaps, why have Constitutional Law scholars, for the most part, accepted the judicial denial of suspect class status to the poor premised on nothing more than judicial fiat?  Is the cynical answer provided to my prior post the right one - that the problems of the bottom 5% (or perhaps bottom 20%) aren't terribly pressing for those in the top 5%?   

Posted by Bertrall Ross on August 10, 2015 at 01:15 PM in Constitutional thoughts | Permalink | Comments (18)

Wednesday, August 05, 2015

Whither class, whither the poor in legal scholarship?

In 2004, the American Political Science Association Task Force on Inequality and American Democracy issued a report on American Democracy in an Age of Rising Inequality.  It started with a damning critique of American Democracy:

"Today ... the voices of American citizens are raised and heard unequally.  The privileged participate more than others and are increasingly well organized to press their demands on government.  Public officials, in turn, are much more responsive to the privileged than to average citizens and the least affluent.  Citizens with lower or moderate incomes speak with a whisper that is lost to the ears of inattentive government officials, while the advantaged roar with clarity and consistency that policy-makers readily hear and routinely follow." 

The task force report was associated with a significant increase in focus on class-based political inequality and the political power of the poor in political science.  The empirical findings were quite stunning.  In the book Unequal Democracy, Larry Bartels examining senate roll call votes in the late 1980s and early 1990s and the ideological views of different income classes found that while "senators seem to have been quite responsive to the ideological views of their middle and high-income constituents, ... the views of low-income constituents had no discernible impact on the voting behavior of their senators."  In Affluence and Influence, Martin Gilens examining a range of government policies and the survey-based preferences of persons in different income classes similarly found that "government policy bears absolutely no relationship to the degree of support or opposition among the poor."  It was only when the poor shared the views of the wealthy and middle classes that government policy accorded with their preferences.  Several other scholars have joined the fray adding further empirical richness by testing other measures of the political power of the poor and legislative responsiveness to the interest of different income groups. 

In light of the Great Recession and its aftermath, this scholarship is quite timely.  Economic inequality has only grown.  The Occupy Movement focused attention on growing wealth disparities and even politicians are talking a bit more about inequality with some deigning to look beyond the middle class and mention the poor (with low-income individuals being the preferred label of Republicans and working families being the preferred label of Democrats).  Given the Law and Order type orientation of legal scholarship (ripped from the headlines and straight into your law reviews), you would think that we would be all over this.  But my hein online searches into legal scholarship on economic class has yielded disappointing results.  There was a flurry of legal scholarship in the heady days of the late 1960s and early 1970s when the focus was on welfare rights and special judicial protection for the poor.  There was another flurry in the mid-1990s when legal scholars debated whether class-based affirmative action should substitute for race-based affirmative action.  And that's about it. 

I don't mean to suggest that legal scholarship is bereft of discussions about economic class.  Often it is implicated in scholarship on other issues such as race, gender, disability, criminal procedure, bankruptcy, etc.  And over the last several years, poverty law conferences have been organized, Class Crits have emerged, and even a Poverty Law casebook has been written.  But my sense is that class and issues of poverty law remain in the backwoods of legal scholarship.  And I would go further in suggesting that it is in the deep backwoods of legal scholarship on the Equal Protection Clause.  

Why do we as legal scholars not engage class and the poor more than we do now?  A couple of years ago, a foreign LLM student came up to me at the end of my Con Law course and asked why we never discussed economic class and the poor?   In full justificatory mode, I fumbled for an answer that upon later research proved to be entirely unsatisfying.  Since then I have thought of other answers.  But before I offer mine, I would love to hear yours.  And if you think we optimally engage issues of economic class and the poor in legal scholarship, I'd love to hear those perspectives as well. 

Posted by Bertrall Ross on August 5, 2015 at 11:39 AM in Constitutional thoughts | Permalink | Comments (4)

Tuesday, July 14, 2015

Crazy in Alabama: Judicial Process and the Last Stand Against Marriage Equality

My essay Crazy in Alabama: Judicial Process and the Last Stand Against Marriage Equality in the Land of George Wallace has been published at Northwestern University Law Review Online.

This puts together much of what I have been writing here about the mess in Alabama between January and the Court's decision in Obergefell. I reach the same basic conclusion--obnoxious Roy Moore rhetoric aside, everything that happened in Alabama in those six months was consistent with the judicial process and with the traditional scope of injunctions and district court precedent.

Posted by Howard Wasserman on July 14, 2015 at 09:31 AM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, July 10, 2015

Mootness spreads

So it seems everyone thought Nebraska had a great idea on how to end marriage-equality litigation while avoiding attorney's fees. Arkansas and South Dakota have joined Nebraska in asking the Eighth Circuit to dismiss appeals as moot and vacate the various injunctions. Kansas is asking the Tenth Circuit District of Kansas to do the same. And now Alabama is asking the Northern District of Alabama (in a recognition suit that had not yet proceeded to even a preliminary injunction) to do the same.

When I wrote about Nebraska's mootness argument, I explained why voluntary cessation from the state agreeing to abide by Obergefell should not be sufficient to moot the case, or at least not sufficient to justify vacating the district court judgment and order. But looking at these new motions, particularly from Alabama, I I think I have identified a more fundamental problem in their arguments. State officials are arguing that Obergefell conclusively resolved the constitutional question of same-sex marriage across the country, so there is nothing for the district courts to do here and no need for a district court judgment and injunction against officials in these states.

But that misunderstands what a Supreme Court opinion does and how precedent operates. The Supreme Court decision established the operative constitutional framework and analysis, but it it spoke only to the laws in Ohio, Michigan, Kentucky, and Tennessee and the obligations of officials in those states. As to any other state, it is necessary for another court to apply that constitutional framework, as precedent, to the laws and actions in that state. Even if the answer is obvious, since the precedent is binding and there is no way to distinguish it, that additional step is necessary, at least so long as there remains a genuine threat that this other state's anti-SSM laws might be enforced (and within the parameters of mootness doctrine).

In a sense, the states are trying to have it both ways. For months, many states and state officials insisted that a decision by a lower federal court was not binding on non-parties, did not require non-parties to do anything, and did not protect non-parties. This argument was, in fact, correct, although it happened to work to the state's advantage. Now states are trying to argue that a SCOTUS decision is, in essence, a nationwide injunction applicable to all bans on same-sex marriage and to all officials in all 50 states. This argument is, in fact, incorrect, although it also works to the state's advantage.

The most ironic example of this is Kansas. After the Tenth Circuit twice declared that the Fourteenth Amendment guarantees a right to marriage equality (in cases from Utah and Oklahoma) the Kansas Attorney General initiated a state mandamus action to stop a Kansas county clerk from issuing licenses to same-sex couples until a judge in the District of Kansas decided a constitutional challenge to Kansas' ban. Clearly, in the AG's view, binding precedent was not alone sufficient to justify compliance; there needed to be a decision by a court expressly addressing Kansas law and its enforcement by Kansas officials. And never did Kansas officials suggest that the Tenth Circuit's constitutional decision mooted the challenge to Kansas' law. But the Tenth Circuit's decision on the meaning of the Fourteenth Amendment is as binding on federal courts within the Tenth Circuit as a decision by SCOTUS. So if the extra step is necessary to apply circuit precedent, it must also be necessary to apply SCOTUS precedent.

Posted by Howard Wasserman on July 10, 2015 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Wednesday, July 08, 2015

Sanctions?

Same-sex couples in recalcitrant counties and states have a problem, as illustrated by this case in Hood County, TX. Recall what happened: The county dragged its feet in issuing license to same-sex couples, a couple sued for an injunction compelling the license, the county within a few hours relented and issued the license. As I said previously, the case is now moot, but the plaintiffs are not prevailing parties because they did not obtain a judicial decree guaranteeing that license, therefore they cannot recover attorney's fees (which would be small anyway--just the amount to draft  short complaint and TRO motion and file the thing). But attorney's fees are the driving force for compliance--recalcitrance needs to become expensive in order for officials to fall in line.

One solution would be for the court to impose sanctions on the clerk. But then the question is from what source? Rule 11 only applies to papers and other things presented to the court; here, the case has become moot before the defendant clerk has even appeared, much less presented something to the court. Section 1927 only applies to attorneys, and then only for conduct that "multiples" proceedings. So that leaves the court's inherent authority to sanction, including through attorney's fees, in order to compensate, deter, or punish. So does inherent sanction authority reach the type of (mis)conduct we see here: Pre-litigation refusal to comply with precedent, forcing a lawsuit, and immediately acquiescing before the court has an opportunity to hear the case? (In contrast to forcing a lawsuit in order to argue for overturning Obergefell)?

Posted by Howard Wasserman on July 8, 2015 at 02:58 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Monday, July 06, 2015

What can plaintiffs sue for after Obergefell?

A same-sex couple sued the County Clerk of Hood County, TX in the Northern District of Texas on Monday, after they were denied a marriage license (purportedly because the office did not yet have appropriate forms). With several hours of the suit being filed, the office issued the license. Precisely how it should go.

Here is where it gets tricky: According to the above article, the plaintiffs want their attorneys' fees and say they will not drop the lawsuit "until the clerk’s office agrees to issue marriage licenses to 'all couples, gay and straight, without delay.'" But neither of those things should happen:

1) The lawsuit is now moot and should be dismissed as such, since the plaintiffs got what they sued for--their marriage license.

2) The plaintiffs lack standing to seek relief for all couples, gay and straight. So it sounds nice, but that is not how litigation works. Perhaps if they certify as a class action, although I need to see the complaint to know whether they are trying to do that. Of course, that does not resolve the mootness problem.

3) The plaintiffs probably will not get attorneys' fees, since they are not prevailing parties. The defendants complied without any judicial order or injunction. And even though compliance was obtained because of the lawsuit and the certainty of liability, the Supreme Court rejected the so-called catalyst theory of attorneys' fees, demanding that a party prevails only if they obtain some judicial decree in their favor.

4) The solution for the plaintiffs may be to sue for money damages for the inconvenience and humiliation caused by  delay unique to same-sex couples. Assuming that short delay constitutes a violation, the claim only would be worth $ 1 in nominal damages, but it avoids mootness and prevailing-party issues.

Posted by Howard Wasserman on July 6, 2015 at 02:21 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Wednesday, July 01, 2015

Marriage and Other Favored Unions

So we have a fundamental right to same-sex marriage. In the most obvious way, the Court’s holding was good: if the state is going to privilege a particular association (here, marriage), it should not discriminate against persons who try to take advantage of it. Fair enough. But in another way both the government’s favored treatment of marriage and especially the majority’s decidedly not-postmodern love letter to that particular form of association (Alito’s comment that the majority’s vision of liberty “has a distinctively postmodern meaning” notwithstanding) should give us cause for pause. There is another area where the state has favored a particular type of association over others: labor unions, which have been favored over other types of worker organizations. That preference has not worked out well for workers; we would do well to think more about whether the story of state preference for marriage will turn out the same.

 

Associations of Workers and the NLRA

Congress passed the National Labor Relations Act years ago and, with it, enacted a particular vision of what worker associations should be and how they should operate. That vision included both (1) exclusive representation[1] and (2) a commitment to the view that the interests of workers and employers are fundamentally opposed and antagonistic.  

At first the NLRA benefited workers (if rapidly increasing unionization rates are any indication), but over time that has largely ceased to be the case. The government restricted covered labor organization activity and the Act stifled the ability of covered workers to develop innovative forms of worker organizations that could better help them achieve their particular interest. One example of this stifling (and one that I discuss in a forthcoming article) comes out of the Act’s prohibition on company “support” of labor organizations. This ban has in turn dramatically limited the development of mutually beneficial collaborations between workers and companies looking to sell themselves to consumers as “conscious capitalists.” As a result of the Act’s narrow vision of appropriate worker organization, it is not surprising that innovative forms of worker organization (the Fair Food Council being just one example) have only occurred among workers who are not covered by the NLRA at all.  

 In short, when the government favors a particular vision of worker association – even with good intentions – it also frustrates experimentation with other forms – forms that may in fact be better for at least some workers.   

Associations of Individuals and Marriage

 Something similar might be said about marriage. Like the vision of worker organization demanded by the NLRA, marriage (including same-sex marriage) is but one of the many forms romantic and family associations can take. And like a traditional labor union, a traditional marriage (same-sex marriage included) will work better for some than others. The government, however, does much to encourage traditional marriage. Spousal privilege and military, social security, and immigration benefits being just a few examples. And these benefits, like all incentives, serve to promote marriage over non-matrimonial forms of romantic and family association. Those benefits alone might already have been enough to stifle experimentation with other forms. But the majority opinion in Obergefell, if its love letter to marriage is read and its views adopted, imposes an arguably different and more potent type of cost on would-be experimenters: stigma. As the majority sees it, marriage is of “transcendent importance” and “promise[es] nobility and dignity to all persons”. It is marriage that “embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.” Without it, “children suffer the stigma of knowing their families are somehow lesser.” (emphasis added). Given all this, a reader would think marriage the sole means by which we come to flourish in relationships – that families and romantic relations structured without it truly are lesser. On that view, failure to get on board with the institution really does deserve to be stigmatized.  

For those who think the Court’s substantive view on marriage’s importance right and the government’s subsequent promotion of it good, this all won’t seem bad. But for those who think the highest ideals of love and family might be better achieved – at least for them – through other forms of association, the majority’s reification of the centrality of marriage to the good life will strike them as yet another barrier to a future where those ideals can be realized. As with the story of worker associations, it might take us a long time to realize that the government’s “help” of our association of choice today won’t actually be so helpful tomorrow.

 

 



[1] A few argue exclusive representation was not required from the start but it certainly was treated as such soon afterward. Either way, my point is the same.  

Posted by Heather Whitney on July 1, 2015 at 07:00 AM in Constitutional thoughts, Culture, Current Affairs, Employment and Labor Law, Law and Politics, Workplace Law | Permalink | Comments (0)

Tuesday, June 30, 2015

Some movement in Alabama

After a smattering of news and small initial steps in response to Obergefell in Alabama, Monday produced some definitive news.

1) Counsel for the plaintiff class in Strawser has taken the position that the stay on Judge Granade's class injunction lifted as soon as SCOTUS issued its opinion. Granade's order stated that the injunction was stayed "until the Supreme Court issues its ruling" in Obergefell, which happened at 10 a.m. Friday. Thus, the injunction--binding every probate judge in the state to issue a license to any same-sex couple who requests one and otherwise qualifies--is in force and readily enforceable by contempt. Unlike in Nebraska, there was no need for a motion to lift the stay.

2) Plaintiff counsel notified defense counsel of this view and asked defense counsel to notify each probate judge that they were subject to the injunction and could be subject to contempt proceedings if they failed to comply. Plaintiff counsel particularly noted the variance, including some probate judges waiting for SCOTUS to issue its mandate, others issuing licenses to opposite-sex but not same-sex couples, and others not issuing licenses at all.

3) The Association of County Commissions of Alabama, which provides probate judges with liability insurance, recommended "that probate judges begin issuing marriage licenses to same-sex couples in the same manner and pursuant to the same requirements applied to traditional couples." Not sure about that "traditional couples" phrasing, but you get the point. This is just a recommendation. But since the ACCA is the one that indemnifies the probate judges if they get sued, hit with attorney's fees, or held in contempt for non-compliance, the recommendation might carry some weight.

4) The Supreme Court of Alabama issued an order in the mandamus case reminding probate judges that the parties in Obergefell have 25 days to seek rehearing and ordering new briefing and motions to be filed by July 6. Presumably, the briefing on two points: 1) arguing that the mandamus must be vacated because its underlying reasoning does not survive Obergefell and/or 2) arguing that each probate judge should be released from the mandamus because each is bound by the now-enforceable district court injunction.

This order sent everyone scrambling to figure out what it meant. The confusion was compounded (naturally) by Roy Moore, who apparently believes that SCOTUS decisions do not take effect until the period for rehearing has passed. Moore first argued that probate judges were prohibited from issuing marriage licenses until the period for rehearing lapsed; he then said that no probate judge was required to issue licenses within that period, insisting that the issue is "stalled" in Alabama until SCOTUS can no longer grant rehearing. Of course, that ignores the fact that the real work in Alabama is being done not by Obergefell, but by Judge Granade's injunction, which became enforceable immediately.

Posted by Howard Wasserman on June 30, 2015 at 12:24 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, June 29, 2015

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...)

Posted by Aaron Caplan on June 29, 2015 at 06:37 PM in Constitutional thoughts, Teaching Law | Permalink | Comments (0)

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.

First, as Josh notes and as I argued in a listserv discussion, dignitary harms caused by discriminatory delays or by being sent to a special line or a different clerk (to say nothing of the extreme case in which the clerk gives a lecture against same-sex marriage before moving the couple to a different line), may be challenged in an action for damages, even if the couple gets the license. The claim probably is worth only $ 1 in nominal damages, but it could proceed and could produce a judgment against the clerk and/or the office. There is a qualified immunity question that goes to the scope of Obergefell--does it mean there is a right of same-sex couples to obtain licenses and to marry in all respects on the same terms (vis a vis the State) as opposite-sex couples. A supervisory or municipal liability claim also is likely if the delays and dignitary harms were caused by employees carrying out formal policies.

Second (and this may be because my religious beliefs do not cause me to oppose same-sex marriage), even recognizing the administrative need, this makes me uneasy because it smacks bit of separate-but-equal. It relies on separate lines and separate clerks. Only it now is being presented as the least restrictive means for the government to satisfy its compelling interest in issuing marriage licenses to qualifying couples. I suppose if it is done respectfully (and a listserv comment indicated this has been working well in Utah), there is not a problem. But if we all can agree that a clerk's office could not have a special line for mixed-race or interfaith couples (assuming we can), why are same-sex couples and same-sex marriages different? Alternatively, could that concern be resolved by broadening the opt-out to extend not only to opposition to same-sex marriage, but also to other religious objections to other licenses?

Third, what happens if there is only one clerk in the office who will issue these licenses? Can he never break for lunch? Must the office, at least for marriage licenses, shut down for that hour? I do not imagine the office could say "No licenses to same-sex couples from noon-1 p.m."

Posted by Howard Wasserman on June 29, 2015 at 02:08 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (7)

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.)

Posted by Aaron Caplan on June 29, 2015 at 11:45 AM in Constitutional thoughts, Culture | Permalink | Comments (0)

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?

Cooper v. Aaron

The issue in Cooper was whether the Little Rock School District could postpone further compliance with a court-approved desegregation plan. The tumultuous experience with the Little Rock Nine during the 1957-58 academic year involved so much “chaos, bedlam and turmoil” (in the words of the trial court that granted a postponement in Cooper) to justify a cooling-off period.  SCOTUS unanimously disagreed. Desegregation must proceed as previously scheduled for 1958-59, and Governor Faubus and the segregationist legislature must get nowhere with their noises about not being bound by Brown v. Board of Education.  State obedience to SCOTUS’s interpretations of the US Constitution is “indispensable for the protection of the freedoms guaranteed by our fundamental charter for all of us.”  Score one for the federal judiciary.

Except that the desegregation plan did not proceed in the 1958-59 school year.  Instead, the legislature authorized the governor to shut down any school if “an efficient educational system cannot be maintained because of integration of the races.”  Using this power, the governor shuttered the four Little Rock high schools that were scheduled to desegregate, and the Arkansas Supreme Court upheld the order.  Garrett v. Faubus, 230 Ark. 445 (1959).  The postponement that Cooper refused to authorize occurred anyway. 

The end came not through direct enforcement of Cooper, but through the political process.  After a year without high schools, Little Rock began to rethink its commitment to segregation now that white families were personally experiencing the costs of maintaining it. In early 1959, an extreme segregationist who had joined the school board was removed from office through a recall election. The Little Rock Chamber of Commerce issued a statement urging the District to reopen its schools because continuing the controversy would be bad for business. The four closed high schools reopened in fall of 1959, and the desegregation plan slowly resumed. 

This political process was no doubt affected by Cooper, but teaching Cooper as the end of the story paints a misleading picture.  With its surprising subsequent history taught as part of the case, Cooper works better as a demonstration of how complex the constitutional system can be, rather than as a demonstration of the supremacy of judicial interpretation.  As a result, Cooper strikes me as a case worth teaching with its subsequent history, or not at all.  It may well be worth it for the next few years, since a potentially significant story will be whether Obergefell (and perhaps the Obamacare cases) end up generating political backlash comparable to that following Brown.

Palmore v. Sidoti

By contrast, I have not had the heart to use Palmore v. Sidoti to teach a related lesson about the limits of litigation. 

In Palmore, a Florida family court awarded custody of a girl to her father because the mother had entered into an interracial relationship.  The Supreme Court found this to be an invalid consideration: even if community prejudice might make a placement with the mother and her new husband stressful for the girl, the law cannot “directly or indirectly” give effect to private biases.  (That point is similar to the reasoning in Shelley v. Kraemer, as discussed in a previous post.)

SCOTUS reversed the custody ruling and remanded the matter to the Florida state courts to make a ruling untainted by invalid racial considerations, but by that time, the father had remarried within his race and moved to Texas with the daughter (as allowed by the Florida custody award). The state trial court in Tampa relinquished jurisdiction to Texas, and the decision to close out the Florida action was affirmed on appeal. 472 So.2d 843 (Fl. App. 1985).  I have been told that the Texas courts decided in unpublished opinions that it would be in the best interests of the child to remain with the father.

Assume for purposes of discussion that the Texas court considered only questions of family stability and not race. Nonetheless, one may wonder if the same result would have been reached had the Florida courts not originally removed the daughter from the house for constitutionally improper reasons; stability may have favored the mother in that alternate universe.  The subsequent history makes Palmore a story about the limitations of individual rights litigation, and not about its glorious aspirations. This could be a valuable discussion, but I have been loath to tell my students how all of a lawyer’s principled hard work may not ultimately benefit the client, who sometimes becomes a martyr with little to show for her Pyrrhic victory.

Carolene Products

After Carolene Products, the Filled Milk Act has been remembered in the Con Law canon as the paradigm of a law that has a rational basis.  Except that as of today, it officially doesn’t. 

As explained in Geoffrey P. Miller, The True Story of Carolene Products, 1987 Sup. Ct. Rev. 397 (1987), the Act was held to be irrational in Milnot Co. v. Richardson, 350 F.Supp. 221 (S.D. Ill. 1972), a case brought by the Carolene Products Company’s successor corporation. The government did not appeal.  As a result, filled milk is now readily available online. No semester is complete without me drinking a can of filled milk while my students clutch their stomachs and gasp in fear for my nutritional safety.  (Your students will never forget Carolene Products after that bit of show and tell!) 

It’s been a hard choice, but I have chosen to keep the demise of the Filled Milk Act a secret from my students—it would cause too much cognitive dissonance.  Yet it makes a potentially valuable exploration of how constitutional judgments can change—and whether they should.  In Carolene Products (the famous one), Justice Stone said that “the constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing to the court that those facts have ceased to exist.” Evidently they did.  The later invalidation of the Filled Milk Act can potentially be an interesting counterpoint to Shelby County v. Holder (2013), which similarly found that changed facts made a statute unconstitutionally irrational.

Others?

I’d be interested to know if you dare to share these subsequent histories with your students.  And if there are other similar stories we should consider teaching.

Posted by Aaron Caplan on June 29, 2015 at 11:38 AM in Constitutional thoughts, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (1)

Sunday, June 28, 2015

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.

But this seems a dodge when litigation is already pending and when the district court already has entered an injunction prohibiting enforcement of this particular law. The point of Obergefell is to make clear that the district court decision and injunction both were correct. It seems appropriate to allow that declaration about Nebraska law and that injunction (which, as I have argued, only affects the plaintiff couples anyway) to take effect in light of Obergefell. Otherwise, wouldn't most cases become moot after many GVRs?

Of course, this just may be one more way in which marriage-equality litigation is unique. We have multiple states with identical laws all being challenged at the same time by plaintiffs seeking to engage in identical conduct, with one Supreme Court decision resolving the constitutional of every law in every state as to all possible sets of facts. That is not true of all constitutional litigation.

Thoughts?

Posted by Howard Wasserman on June 28, 2015 at 11:49 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (11)

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.

Posted by Howard Wasserman on June 27, 2015 at 04:02 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

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?

Posted by Howard Wasserman on June 27, 2015 at 11:21 AM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (1)

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."

3) I want to say a bit more about the remarks by Mississippi Attorney General Jim Hood that "the Supreme Court's decision is not immediately effective in Mississippi until the Fifth Circuit lifts the stay" on a district court injunction. I said this was inartfully stated, but basically right. And it goes to the basic distinction at work here, between precedent and injunction (and the question of its scope).

The Supreme Court's mandate requires district courts in four states to issue injunctions against enforcement of the laws in four states by some defendants as to certain plaintiffs. None of them are in or about Mississippi. There is an injunction barring the Governor and A/G of Mississippi from enforcing that state's ban as to two couples; that injunction is presently stayed, meaning they are not obligated to comply with the injunction and to issue licenses to the two named couples until that stay is lifted. So Hood is correct as a matter of the law of injunction.

But Obergefell is precedent, binding on all courts, even those in Mississippi, that bans on same-sex marriage are unconstitutional. So any other couple in the state could have filed a new lawsuit against Hood seeking an injunction prohibiting continued enforcement of Mississippi's ban and compelling issuance of licenses; that court would have to issue the injunction, under the binding authority of a SCOTUS decision. The judge might be swayed by the continuing Fifth Circuit stay, but perhaps not; since the stay was in place pending Obergefell, the district court might feel free to issue a new injunction now that SCOTUS has spoken. So Hood is incorrect as a matter of the law of precedent.

The point is it is not as simple as saying Hood is wrong or issuing dangerous advice, as someone says in this article. Hood is right that the existing injunction does not take effect until the stay is lifted--but that only applies to two plaintiff-couples. He is wrong that SCOTUS precedent is not yet effective in the state, as a matter of influencing a court in a new case.

According to this story, Louisiana Governor (and GOP presidential candidate) Bobby Jindal essentially made the same argument as Hood--no mandate has issued for Louisiana to issue licenses, thus Louisiana officials are under no obligation to issue licenses to same-sex couples. And like Hood, he is right, unless and until a federal judge slaps an injunction on Jindal and others.

Posted by Howard Wasserman on June 27, 2015 at 11:03 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

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.

Stay tuned.

Posted by Howard Wasserman on June 26, 2015 at 08:41 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Marriage equality

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.

Posted by Howard Wasserman on June 26, 2015 at 10:08 AM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (3)

Thursday, June 25, 2015

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.

Posted by Aaron Caplan on June 25, 2015 at 03:21 AM in Constitutional thoughts, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (2)

Wednesday, June 24, 2015

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.

In light of this political reality, the court concluded that the mens rea requirement in the statute was not enough to render it constitutional. Most of the statute's chilling effect on political speech occurred because any person can file a complaint under the statute at any time: “[M]ost cynically, many might legitimately fear that no matter what they say, an opponent will utilize [the statute] to simply tie them up in litigation and smear their name or position on a particular matter, even if the speaker never had the intent required to render him liable.”

 The court further explained that the statute’s exemption for news media made its unconstitutionality all the more apparent. Exempting the media from liability for false statements while targeting advocacy groups did not advance the state’s interests in policing election fraud. The underinclusiveness of the statute undermined the state’s claims that its speech restrictions were necessary to achieve its stated aims.

Ultimately, the court’s decision to strike down the statute stemmed from both its understanding of the political process and its embrace of the First Amendment ideal of the marketplace of ideas. Counterspeech, not criminalization, is the remedy that the US Supreme Court’s decisions interpreting the First Amendment precribe for false speech during political campaigns. Counterspeech is clearly a less restrictive alternative than criminalization, and “[t]he citizenry, not the government, should be the monitor of falseness in the political arena.” 

The court's opinion thus relied on two central tenets (some would call them myths) of First Amendment jurisprudence. As I've previously described these tenets in an article called Nobody's Fools: The Rational Audience as First Amendment Ideal: "[t]he first is that audiences are capable of rationally assessing the truth, quality, and credibility of core speech. The second is that more speech is generally preferable to less." The problem, of course, is that these tenets, or assumptions, may be demonstrably wrong. False speech in political campaigns may bamboozle the electorate, if they're even paying attention. Nonetheless, the court in Arneson reached the right decision based on both Supreme Court precedent and democratic theory. An audience that is incapable of critically analyzing campaign speech is also incapable of participating in political discourse or engaging in democratic self-governance, and to abandon the ideal of the rational audience for political speech is to abandon the ideal of democracy. This is not (yet) something we're prepared to do.

 

 

Posted by Lyrissa Lidsky on June 24, 2015 at 02:53 PM in Constitutional thoughts, Criminal Law, First Amendment, Law and Politics, Lyrissa Lidsky | Permalink | Comments (2)

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.

Framing can be a battleground in equal protection cases where the court must decide which groups to compare against each other.  Goesaert v. Cleary, 335 U.S. 464 (1948), sometimes taught as an example of the bad old days, involved a frame that strikes most modern students as bizarre.  A Michigan statute would grant bartender’s licenses to two kinds of applicants: (a) a man or (b) a woman who is “the wife or daughter of the male owner” of a tavern.*  For Justice Frankfurter, writing for the majority, the statute distinguished between two classes of women: those who are close relatives of bar owners and those who are not.  The legal question was whether Michigan was “play[ing] favorites among women without rhyme or reasons.” Frankfurter tipped his hand that his choice of frame controlled the outcome, saying: “To ask whether [the state may distinguish] wives and daughters of owners of liquor places and wives and daughters of nonowners, is one of those rare instances where to state the question is in effect to answer it.”  Indeed.  The dissent asked a different question: could the state justify discrimination “between male and female owners of liquor establishments?”  The dissenters answered that question (in the negative) in two quick paragraphs. Other, even crazier, frames are possible on the Goesaert facts.  The statute discriminated against corporations who own taverns, because they are not  "male owners" capable of having a "wife" or a "daughter."  The state is facilitating cheaper labor for certain sole proprietors, but owners who exercise their Citizens United right to assemble in the corporate form must hire from a slightly smaller and hence more expensive all-male labor pool. 

* (As noted in an earlier post, alcohol pops up Con Law teaching more often than one might expect.) 

All disparate impact cases are a variation on the frame game.  Did the law in Geduldig v. Aiello (1974) classify along the lines of male v. female or, as the majority thought, “pregnant women and non-pregnant persons?”  Did the law in Personnel Administrator v. Feeney (1978) classify between veterans and non-veterans, or between men and women? 

The frame game is inescapable in substantive due process cases where the task is to define the relevant unenumerated right.  Did the terminally ill plaintiffs in Washington v. Glucksberg (1997) seek to enforce “a right to commit suicide which itself includes a right to assistance in doing so” or “the right to a humane death” or “freedom from pain and indignity”?  Did the biological father in Michael H. v. Gerald D. (1989) seek “parenthood” or “parental rights [of] the natural father of a child conceived within, and born into, an extant marital union [to which he is not a party]?”  And as we await a result in Obergefell v. Hodges, one can ask whether the couple in Loving v. Virginia (1967) sought the right to enter into “marriage” or into “interracial marriage.”

Finally, one may consider an often explicit choice among legal frames, with the most common nominees in individual rights cases being freedom and equality.  This is likely to arise in Obergefell, which is a case about the freedom to marry and about equality among marriages.  While abortion rights were framed as a matter of freedom of reproductive choice in Roe v. Wade (1973), pro-choice advocates also argue that legal abortion is necessary for women to have the same options as men.  In many such cases, the frames would not necessarily generate opposite answers; this is seen in an earlier post about jury selection cases, where the right of a juror to be seated correlates with the right of the defendant to a representative jury.  In these situations, students can develop the lawyering skill of choosing which frame to emphasize.

Posted by Aaron Caplan on June 24, 2015 at 01:49 PM in Constitutional thoughts, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (0)

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.”

In Ingraham v. Wright (1978), the plaintiff secondary school students argued that their public school district’s use of corporal punishment amounted to cruel and unusual punishment.  All of the previous SCOTUS decisions decided under the Cruel and Unusual Punishment Clause involved criminal defendants objecting to their sentences or the methods by which the sentences were carried out.  For the majority, the precedents represented a ceiling, indicating that the Clause would protect no more than the criminal defendant, and hence offer nothing to a public school student.  For the dissenters, the precedents were a floor: they meant that, at least, cruel and unusual punishments could not be inflicted on criminal defendants, but perhaps others were protected against them as well.  (Ingraham is an excellent showcase for a number of other methods of interpretation, including disagreements over the meaning of text, history, consequences, values, and constitutional structure; for this reason I have had good success starting my courses with it, and now my casebook.)

Similar floor/ceiling debates occur in canonical cases involving other constitutional topics, such as the state action doctrine—Jackson v. Metropolitan Edison (1974)—and substantive due process—Moore v. East Cleveland (1977) and Michael H. v. Gerald D. (1989). 

Once you have sensitized students to how different judges can approach precedential ceilings and floors, you can then see a very similar contrast of interpretation with regard to the text of the Constitution itself, particularly with regard to enforcement of unenumerated principles.  If the two precedents from Caperton are a ceiling, limited to their facts, then perhaps Bill of Rights should be read the same way: as precise enumerations of narrow principles without Griswold-style penumbras that form a subterranean rational continuum.  And the same could be said for the various Art. I, §10 limitations on state commerce regulation: they mean only what they say (no duties of tonnage, no non-essential imposts on imports or exports), and do not contribute to a larger rule against state laws that impose burdens on interstate commerce in unenumerated ways. 

Sure enough, one often sees exactly this combination: Justice Scalia opposes broad applications of the dormant commerce clause doctrine and substantive due process, and frequently reads precedents narrowly as well.  The reverse combination is usually true for Justice Breyer. 

Posted by Aaron Caplan on June 22, 2015 at 02:20 PM in Constitutional thoughts, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (0)

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.

Thoughts?

Posted by Howard Wasserman on June 22, 2015 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Thursday, June 18, 2015

SCOTUS Decides the Confederate Plates Case (5-4)

The US Supreme Court today held that the Texas Department of Motor Vehicles did not violate the First Amendment when it rejected a proposed license plate featuring the confederate battle flag. The majority opinion, authored by Justice Breyer and  joined by Justices Thomas, Ginsburg, Sotomayor, and Kagan, reached this conclusion by deploying the relatively newly minted government speech doctrine to allow Texas to pick and choose what messages its drivers can display on their specialty license plates based on whether others might find those messages offensive. Justices Roberts, Scalia, Alito, and Kennedy dissented. 

Like many other states, Texas has a specialty license plate program through which it raises funds by allowing a variety of groups to create specialty plates. Justice Breyer's majority opinion notes, for example, that Texas has approved plates "featuring the words 'The Gator Nation,' together with the Florida Gators logo." [As a UF professor, I appreciate the SCOTUS shout-out!] Justice Breyer also notes that Texas has approved plates with slogans offered by private companies, such as "Get it Sold with RE/MAX." Writing for the majority, Justice Breyer nonetheless concludes that these messages are government speech, branded with the "imprimatur" of Texas.

The case began in 2009, when the Sons of Confederate Veterans (SCV) first submitted to Texas a plate with their name, their organizational logo, and the Confederate battle flag. After public comment and an open meeting to consider the plate, the Texas Department of Motor Vehicles Board rejected the plate on the grounds that "many members of the general public find the design offensive." The Board further deemed such comments by  the public to be "reasonable." (emphasis mine) [Cf. Snyder v. Phelps!] The SCV sought an injunction to force the Board to approve the plate on the ground that the denial violated the First Amendment. A federal district court entered judgment for the Board, but a panel of the US Court of Appeals for the Fifth Circuit reversed, holding that the Board's viewpoint discrimination against the SCV plate was unconstitutional. 

Today, the Supreme Court held that Texas is the speaker when it chooses the contents of specialty license plates. In other words, the contents of the specialty plates are government speech, and Texas is therefore free to engage in viewpoint discrimination in choosing which plates to approve, subject to the constraints of the "democratic electoral process." The majority posited that the "government would not work" were it not free to convey its messages in the way it sees fit: "as a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position. In doing so, it represents its citizens and it carries out duties on their behalf." 

A reasonable observer could be forgiven for assuming that a Texas plate that favors The Gator Nation represents the views of the driver of the automobile rather than the views of the State of Texas. But the Court concluded that the plate messages are government speech based on the following. First, license plates historically have been used to convey state messages. "Second, Texas license plate designs 'are often closely identified in the public mind with the [State]." [The majority's process of discerning the "public mind' is a little unclear.] Third, Texas controls messages on its license plates by requiring Board approval of every plate design, a process which grants "final approval authority [that] allows Texas to choose how to present itself and its constituency." 

The Court further concluded that license plates do not constitute forums for the speech of private individuals (such as the drivers who choose the plates).  The Court emphasized that license plates, unlike public parks, are not traditional public forums [but then again neither are teacher mailboxes, as in Perry Education Ass'n]. More controversially, the Court asserted that the license plates are not designated public forums because the policies and practices of the state of Texas manifest its intent to maintain control of them. The opinion placed great weight on the fact that Texas has "final authority" to approve content, and it also emphasized the traditional role of license plates as "primarily . . . a form of government ID [that] bear[s] the State's name." In doing so, the opinion seems to ignore the conversion of the "traditional" license plate system into a revenue-raising scheme for the state. 

Finally, the majority rejected the notion that the plates are a non-public forum that can be used by private speakers, reasoning that the plates are predominantly used by Texas for its own "expressive conduct." As the opinion states, "we reach this conclusion based on the historical context, observers' reasonable interpretation of the messages conveyed by Texas specialty plates, and the effective control that the State exerts over the design selection process." 

 This 5-4 decision highlights a flaw in First Amendment doctrine that I've previously discussed in an article on public forum doctrine and government speech in social media. That flaw is that current doctrine "does not contemplate the possibility that [a forum for speech] might involve both government speech and a public forum." Supreme Court precedent left the majority with a Boolean choice: either the plates were a public forum or they were government speech. If the plates were a public forum, Texas's rejection of  any imaginable  plates on the grounds of offensiveness would constitute content-based and viewpoint-based discrimination in violation of the First Amendment. The result would be that Texas, and perhaps most states, would eliminate specialty license plate programs even if it meant giving up the extra revenues they bring. [Not that this result would be so terrible.] On the other hand, if the plates were deemed government speech, Texas could maintain the program while blocking the most objectionable types of plates. Reality, however, is more complicated than current free speech doctrine. The reality is that Texas specialty plates contain both government speech and private speech on one small square of metal. This case just points out the absurdity of having to choose inflexible doctrinal categories to get to a desired outcome. 

Justice Alito's dissent rightly observed that the case sets a dangerous precedent, allowing the government to regulate any offensive speech on government property simply by retaining final approval authority over that speech. Justice Alito refocused the historical analysis of licenses plates on the point AFTER the development of specialty plate programs, concluding that "history here does not suggest that the messages at issue are government speech." He also examined how the Texas license plate approval process actually worked: Texas accepts all private messages submitted "except those, like the SCV plate, that would offend some who viewed them." The mere fact that Texas has given its "blessing" to the private speech on most plates does not make those plates government speech. Instead, "Texas, in effect, sells [license plate] space to those who wish to use it to express a personal message," and by doing so, creates a limited public forum. Texas' decision to reject the SCV plate, or indeed  to reject any plate on grounds of offensiveness, was therefore unconstitutional viewpoint discrimination. 

 

 

 

Posted by Lyrissa Lidsky on June 18, 2015 at 04:51 PM in Constitutional thoughts, First Amendment, Lyrissa Lidsky | Permalink | Comments (0)

Wednesday, June 17, 2015

Strange Bedfellows #7: Liberty Lists

This post is part of the Strange Bedfellows series.

To enumerate rights or not to enumerate them?  Federalist Noah Webster, arguing against the need to include a Bill of Rights in the proposed constitution, asserted that a person sleeping on his right side has a natural law right to roll over and sleep on his left side, but we aren’t going to write such minutiae into the Constitution. Moreover, if that right was constitutionally enumerated, it would imply that those not enumerated—say, the right to wear a hat—were not protected.  The latter problem was supposed to be put to bed by the Ninth Amendment (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”)  Enumerate away! 

The story’s not quite that simple, as the disagreement between plurality and dissent in this week’s Kerry v. Din shows.  But as a teaching tool, it can be useful to compare and contrast the decision to enumerate rights in the constitution with the decision to enumerate rights in court opinions. In a selection of cases, the Supreme Court has sought to provide sample enumerations of unenumerated rights as a way of indicating the scope of American freedom.  These "liberty lists" have arisen most prominently in the 20th and 21st centuries with regard to the Due Process Clause, but decisions from before the ratification of the Fourteenth Amendment offered other lists that were claimed to flow from the Privileges And Immunities Clause of Art. IV and the structural meaning of citizenship itself.

Issues worth studying when comparing these various liberty lists are how their contents have (or have not) changed over time; when they are used as opposed to when they are not; and whether the amount of detail in the list correlates to a win for the individual claiming an unenumerated liberty.  The punch line at the end of a capacious list is most often “We protect a huge range of liberties, including yours” (as in Meyer v. Nebraska) but it can also be “We protect a huge range of liberties, but not yours” (as in Board of Regents v. Roth).

The most famous early liberty list is Corfield v. Coryell, 6 F. Cas. 546, 552 (C.C.E.D. Pa. 1823), a trial court opinion rendered by Justice Bushrod Washington while riding circuit.  The question was whether New Jersey had violated Art. IV, section 2 by wrongly failing to extend to a citizen of another state a “privilege and immunity” available to New Jersey citizens.

The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised.

The majority opinion in The Slaughterhouse Cases (1872) applauded Corfield’s list, saying that the rights protected by the Art. IV Privileges And Immunities Clause embrace “nearly every civil right for the establishment and protection of which organized government is instituted.” The punch line is that the right sought in Corfield—to engage in oyster farming in state waters on equal terms with a state resident—was not fundamental, the breadth of the Corfield list notwithstanding. 

Crandall v. Nevada, 73 U.S. 35 (1867), involved a state law imposing a tax on exit from the state, a law found unconstitutional because it interfered with the ability of US citizens to travel to and access federal facilities.  Crandall was decided before the Fourteenth Amendment was ratified; it reached its conclusion based on general principles that Slaughterhouse called “implied guarantees of the Constitution.”  Just by being a US citizen, one automatically enjoyed the Crandall rights:

[The citizen] has the right to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has the right of free access to its seaports, through which all operations of foreign commerce are conducted, to the subtreasuries, land offices, and courts of justice in the several States, and this right is in its nature independent of the will of any State over whose soil he must pass in the exercise of it.

Once attention shifted to the Due Process Clause as the textual home for most of the unenumerated rights, two frequently-quoted lists appeared in majority opinions. Allgeyer v. Louisiana, 165 U.S. 578 (1897), generally viewed as the first SCOTUS case to invalidate a state statute for violating an enumerated right under a substantive due process theory, described it this way: 

The “liberty” mentioned in that [Fourteenth] amendment means, not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned.

Described this way, the right reached the ability to purchase life insurance from an out-of-state company. A reformulation of the list, this time emphasizing non-economic rights, appeared in Meyer v. Nebraska, 262 U.S. 390 (1923):

While this court has not attempted to define with exactness the liberty thus guaranteed [by the Due Process Clause], the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

The right to send one’s children to a private school to learn the German language fit comfortably in this list.

An interesting contrast to the Allgeyer and Meyer liberty lists is the formula from Bolling v. Sharpe (1954), the companion to Brown v. Board of Education that used reverse incorporation to find that the Fourteenth Amendment Equal Protection Clause should be binding on the federal government.  Here, the Court offered no list (only a principle), and then concluded that the asserted right fit within that principle.  It is not widely remembered today, but Bolling may offer the most expansive (or is it the most circular?) definition of liberty of any SCOTUS opinion.

Although the Court has not assumed to define “liberty” with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective. Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause.

So who might lose under a modern application of the liberty lists?  For one, the untenured college professor in Board of Regents v. Roth. After quoting the Meyer list, and citing Bolling for the proposition that “in a Constitution for a free people” the meaning of liberty “must be broad indeed,” the court proceeded to find that no liberty was implicated when the professor’s one-year contract was not renewed.  For another, the alien children held in immigration detention centers in Reno v. Flores, 507 U.S. 292 (1993).  They might have thought they did not need to rely on a liberty list, given the universal agreement that “freedom from bodily restraint” was protected.  The majority concluded that this right was not implicated by the facts of the case—only “the alleged right of a child who has no available parent, close relative, or legal guardian, and for whom the government is responsible, to be placed in the custody of a willing-and-able private custodian rather than of a government-operated or government-selected child-care institution.”  Turns out that one isn’t on the list. 

And now, in Kerry v. Din, a plurality would hold that a US citizen with a foreign spouse has no liberty interest in that spouse receiving a visa to enter the country (not even enough of a liberty interest to trigger procedural due process).  Justice Scalia’s opinion for a three-justice plurality offers its own liberty list that is limited to what Lord Coke perceived within the Magna Carta.  The opinion goes on to expressly rejects the entire American judicial tradition of liberty lists:

To be sure, this Court has at times indulged a propensity for grandiloquence when reviewing the sweep of implied rights, describing them so broadly that they would include not only the interests Din asserts but many others as well. For example: "Without doubt, [the liberty guaranteed by the Due Process Clause] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, [and] to worship God according to the dictates of his own conscience" Meyer v. Nebraska (1923). But this Court is not bound by dicta, especially dicta that have been repudiated by the holdings of our subsequent cases.

Posted by Aaron Caplan on June 17, 2015 at 11:08 PM in Constitutional thoughts, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (0)

Tuesday, June 16, 2015

Veep does the Constitution

Veep is a hilarious show, described by one former Obama adviser as the most accurate depiction of Washington and definitely the most hilariously profane (reflecting the sensibilities of creator, and departing showrunner, Armando Iannucci). The season finale, which aired on Sunday, takes place on Election Night and ends on a constitutional cliffhanger related to presidential elections and presidential succession, a common theme for political TV shows.

More (with spoilers) after the jump.

The election ends in a 269-269 Electoral College tie,* sending everyone scrambling to figure out, and discuss in expository dialogue, what happens; it became a  mini Con Law lecture, although there did not seem to be a practicing lawyer in the room. The show explains that the House selects the President, voting by state delegation, and the Senate selects the Vice President, voting as a body of the whole; they get that part right. But then the narrative reveals uncertainty over numerous close House races** and over what the make-up of the House will be, with everyone raising the possibility of a tie in the House. What happens then? The show posits that the Vice President becomes President. This sets-up the dramatic twist that Meyer's running mate, Tom James (who is seemingly more popular and more competent than Meyer***), will "backdoor" his way into the top spot; one of the last beats in the episode has James asking Meyer to serve as his VP.

[*] This allows for a nice riff about the stupidity of having an even number of electors--blame the Twenty-third Amendment. The tie also results from a bizarre electoral map for current politics. Selina Meyer, whose party is unnamed but who seems to be a Democrat, wins Virginia, Pennsylvania, Florida, and Wisconsin, but loses Minnesota and Ohio. 

[**] Also unlikely in current politics, given gerrymandering practices creating vast numbers of "safe" seats.

[***] And ambitious. Earlier in the episode, James insists that, in addition to serving as VP, he wants to be Secretary of the Treasury. I do not believe there is a constitutional bar to the VP holding a cabinet position, although I cannot see the Senate going for it.

That last part seems both constitutionally wrong and factually unlikely, at least as presented. So the mini Con Law lecture did not quite get it right.

First, whatever the uncertainty of the makeup of the next House,the possibility that twenty-five state delegations will be controlled by one party and twenty-five controlled by the other seems like an implausible logical leap. It would be a fun narrative twist to actually show happening; it just seemed a strange place for Meyer's aides to go in predicting right then. Second, and related, why does nobody consider the possibility of a tie in the Senate (historically, a more likely occurrence) or even of James losing in the Senate (if the opposing party has a majority). It is not discussed, even to explain away that the Senate make-up is not unknown and that the Meyer/James party will control the Senate.

Third, under the Twelfth Amendment, if the House has not yet chosen a President by the appointed date (as further amended, January 20), "the Vice President shall act as President, as in the case of the death or other constitutional disability of the President." The Twentieth Amendment further provides that "[i]f a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified." In other words, contrary to what the show says, James would be Acting President, not President; he would not enjoy an inauguration, he would not be listed in the line of Presidents, and he certainly would not be able to appoint a Vice President.

He also would act as President only until "a President shall have qualified," that is, until the House is finally able to resolve any stalemate and pick the President. This presents the fourth problem with the show's constitutional narrative--the assumption that there would be one House vote, it would end in a tie, and that would be the end of the discussion. But the House may (and will) take multiple votes and engage in a lot of politics to resolve the question--it took 36 ballots and political pressure from Alexander Hamilton for the House to elect Jefferson over Burr in 1801. So even if the initial vote were tied (again, unlikely), the House likely would not stop at a tie and leave an elected VP to serve four years as acting President; the House would feel public and political pressure to continue negotiating and holding votes until someone is elected President from between the two**** top-of-the-ticket candidates for whom the public had just cast millions of votes.

[****] The Twelfth Amendment provides that the House may consider up to the top three Electoral College vote-getters, unnecessary here, since no third-party candidate received College votes. The show might have tried to really go all the way on E/C confusion by throwing in a third candidate who won two three-elector states (one from each candidate), producing a tie without a possible majority.

None of which is to dampen my enthusiasm for the show. But if the writers are deliberately showing a constitutional possibility, I just want them to get the small details right (especially when those details involve legal issues I am interested in).

Posted by Howard Wasserman on June 16, 2015 at 09:31 AM in Constitutional thoughts, Culture, Howard Wasserman, Law and Politics | Permalink | Comments (11)

Monday, June 15, 2015

Strange Bedfellows #6: Streams of Commerce

This post is part of the Strange Bedfellows series.

Those of us who also teach Civil Procedure are familiar with the “stream of commerce” concept within the constitutional law of personal jurisdiction. Under circumstances that the Supreme Court has notoriously failed to make clear, an entity that manufactures and sells a product in one state may be subject to personal jurisdiction to the courts of another if the product causes injury after traveling there through “the stream of commerce.”  Less well remembered is that the “stream of commerce” once had a significant role to play in the law of the Commerce Clause. 

These two streams of commerce are taught under different pedagogical silos, but may have something to say to each other.

During the Lochner era, SCOTUS cases involving the commerce power attempted to draw a line between transactions deemed to have “direct” impact on interstate commerce (which Congress could regulate) and those with only “indirect” interstate impact (which Congress could not regulate). Conversely, the federal government was allowed to impose regulations on interstate commerce that affected local commerce, so long as their impact was “indirect.” In appropriate cases, SCOTUS was willing to see “direct” impact when purely in-state activities took place within a stream of commerce that would predictably flow to other states. 

The metaphor was introduced in Swift & Co. v. United States, 196 U.S. 375 (1905), which upheld an antitrust injunction against price-fixing in the meat industry. Even though the agreement to fix prices occurred within the boundaries of one state, that transaction had a significantly plain impact on the interstate flow of goods as to justify federal regulation.  As Justice Holmes opinion said:

When cattle are sent for sale from a place in one state, with the expectation that they will end their transit, after purchase, in another, and when in effect they do so, with only the interruption necessary to find a purchaser at the stock yards, and when this is a typical, constantly recurring course, the current thus existing is a current of commerce among the states, and the purchase of the cattle is a part and incident of such commerce.

This ruling was only ten years after SCOTUS had ruled in United States v. E.C. Knight Co., 156 U.S. 1 (1895) that federal antitrust laws could not reach the purportedly local activity of operating a sugar refinery.  The tension between the two rulings was fairly obvious.  In both cases, an economic combination (monopolization in E.C. Knight, price fixing in Swift) affected customers in other states with regard to their purchase of a commodity food item, yet only one could be federally regulated.  After decades of back and forth over where the “stream of commerce” began and ended, NRLB v. Jones & Laughlin Steel, 301 U.S. 1 (1937) put the entire framework to rest:

We do not find it necessary to determine whether these features of defendant’s business dispose of the asserted analogy to the “stream of commerce” cases. The instances in which that metaphor has been used are but particular, and not exclusive, illustrations of the protective power which the government invokes in support of the present act. The congressional authority to protect interstate commerce from burdens and obstructions is not limited to transactions which can be deemed to be an essential part of a “flow” of interstate or foreign commerce.

Now consider the stream of commerce as used in modern personal jurisdiction decisions.  World-Wide Volkwagen v. Woodson, 444 U.S. 286 (1980), said in widely quoted dicta:  “The forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.”  The opinion did not cite to any Commerce Clause decisions, but instead to a well-known Illinois Supreme Court decision—Gray v. American Radiator & Standard Sanitary Corp., 176 N.E.2d 761 (Ill. 1961)—that did not use a riparian analogy, but noted that goods had passed from one state to another “in the course of commerce.”  The image of a stream helpfully captured the idea for a jurisdictional context.  If a person poured poison into a river in one state, knowing that it would be carried downstream and cause injury in another state, personal jurisdiction in the second state ought to be proper. So too for pouring injurious items (like malfunctioning automobiles or radiator parts) into the stream of commerce.

Since World-Wide Volkswagen, SCOTUS has not been able to clearly articulate when a manufacturer has a legitimate “expectation” that its goods will be purchased in the forum state, and hence whether it has been properly introduced into a stream of commerce that predictably flows there.  Fractured decisions in Asahi Metal Industries v. Superior Court, 480 U.S. 102 (1987), and J. McIntyre Machinery Ltd v. Nicastro, 131 S.Ct. 2780 (2011), have left confusion about how the concept should be applied. 

The stream of commerce under the Commerce Clause is not regularly taught, since it has been successfully interned.  The stream of commerce remains a live topic in Civil Procedure.  Some useful comparisons can nonetheless be made.

Both lines of “stream of commerce” cases involve a similar problem: when should a person’s local activity, having effects elsewhere, give rise to legal consequences outside the home state? Both also involve line-drawing problems: where should the stream of commerce be declared to begin and end? In both settings, the stream of commerce concept seems to have been introduced as a way to soften an otherwise draconian rule that prevented the government from taking action desired by the political branches.  And in both settings, the concept has been an unreliable guide to deciding concrete cases.  In response to the doctrinal confusion, Justice Kennedy’s plurality opinion in Nicastro sought to inter the stream of commerce metaphor, but unlike Jones & Laughlin, there was no majority willing to take that step.  If Justice Kennedy’s view in Nicastro prevails, the stream of commerce concept would be banished from personal jurisdiction because a conservative court perceived that it allowed governments to do too much—contrasting with Jones & Laughlin, where the stream of commerce was be banished from the Commerce Clause because a newly liberal Court perceived that it forced government to do too little.

 

Posted by Aaron Caplan on June 15, 2015 at 11:42 PM in Civil Procedure, Constitutional thoughts, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (0)

Friday, June 12, 2015

Three-judge district courts in constitutional reform litigation

At Balkinization, David Gans discusses the use of three-judge district courts in conservative-leaning impact litigation challenging campaign-finance reform and voting rights rules. Gans argues it reflects "a long term conservative strategy for getting blockbuster campaign finance and voting rights cases to the Supreme Court. It is a strategy that has paid off time and again as John Roberts and his conservative colleagues have made it easier for corporations and the wealthy to spend unlimited sums of money on elections, and harder for Americans to vote in them."

I do not buy the argument that the three-judge district court procedure is in any way relevant or to blame for the doctrinal trends Gans is decrying. First, as Gans notes, the most significant recent case--Shelby County--did not come from a three-judge court, but SCOTUS took the case anyway and a narrow majority gutted the Voting Rights Act. Second, and more importantly, the three-judge district court does not benefit conservatives or liberals as much as it benefits whoever happens to be bringing the legal challenges. As Gans himself acknowledges, three-judge district courts were a central feature in litigation challenging Jim Crow and other discriminatory policies during the Civil Rights Era, with the NAACP and other litigators designing legal strategy specifically to get into a three-judge court; this  enabled plaintiffs to avoid hostile individual district judges in favor of a broader panel and to get cases to SCOTUS more quickly. But that current challenges are being brought by conservatives and creating constitutional doctrine that Gans obviously dislikes does not reflect anything about the wisdom (or lack thereof) of the three-judge process. If we accept constitutional impact litigation as a legitimate use of the courts, it cannot matter who is bringing the challenge or the positions they are urging; the complaint can only be about the doctrine, not the process that got us there.

For the best history of the three-judge process, including its role during the Civil Rights Era and its restriction in the '70s (based on the perception that they no longer were necessary), see Michael Solimine's 2008 article.

Posted by Howard Wasserman on June 12, 2015 at 12:01 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Thursday, June 11, 2015

Strange Bedfellows #5: One-Off Decisions (or, Thoughts on Plyler, Windsor, and Shelley v. Kraemer)

This post is part of the Strange Bedfellows series.

Whatever the outcome later this month of Obergefell v. Hodges (state-level bans on same-sex marriage), the decision is certain to refer heavily to US v. Windsor (2013) (federal ban on same-sex marriage).  For its part, however, Windsor struck me as a descendent of a precedent it nowhere cited or discussed:  Plyler v. Doe (1982).

Plyler invalidated a Texas statute denying public education to non-citizen children residing in the US unlawfully.  The statute’s classification was sort of, but not really, based on alienage, which made it sort of, but not really, suspect.  Free public education for youth was sort of, but not really, a fundamental right.  The law threatened to create an economic underclass, which is sort of, but not really, wealth discrimination (which is sort of, but not really, a suspect classification in any event).  There was no explicit finding of legislative animus against a disfavored class, although it seemed to be in the mix.  Adding all of these not-quite factors together, the majority concluded that the statute violated equal protection, because “the discrimination contained in [the statute] can hardly be considered rational unless it furthers some substantial goal of the State.”  The dissent complained that “by patching together bits and pieces of what might be termed quasi-suspect-class and quasi-fundamental-rights analysis, the [majority] spins out a theory custom-tailored to the facts of these cases.”

When teaching Plyler, I present it as a glimpse into an alternate universe where the sliding-scale approach favored by Justices Marshall and Stevens had taken hold, so that without regard to rigid categories, the more important the right or the more questionable the classification, the stricter the scrutiny.  But it’s only a glimpse. Plyler has had little impact outside its factual setting: it remains a controlling precedent for laws that target undocumented aliens, but has not had any broader influence on equal protection or fundamental rights methodologies.  Yet upon reading Windsor, I felt as if I was reading Plyler 2.0. 

The majority in Windsor portrayed federal DOMA as a statute that sort of, but not really, shifted control over marriage policy from states to the federal government.  Marriage was spoken of in grand terms, but its role as a fundamental right was not really the basis of the opinion.  The opinion implied that discrimination on the basis of sexual orientation was objectionable, but not really suspect.  These various sort-of considerations allowed the majority to conclude that the statute was motivated by animus, obviating the need to undertake the usual examination of legislative means and ends.  The dissenters decried the result and also criticized the majority for offering “rootless and shifting” justifications: for coloring outside the lines.

Time will tell if Windsor heralds a revival of Plyler’s approach to equal protection.  If it is not, then Plyler remains one of the one-offs among the canonical Con Law cases—good teaching decisions whose results are in no real danger of being overruled, but whose reasoning never shaped the mainstream.  The most prominent of the one-off decisions is Shelley v. Kraemer, which held that judicial enforcement of racially restrictive real estate covenants violates equal protection.  Almost all instruction on Shelley includes discussion of why its approach to state action didn’t ultimately carry the day; not every instance of contract enforcement is treated as state action subject to the Equal Protection Clause.

For what it’s worth, Shelley makes more sense to me if viewed less as a state action decision but as a precursor to Brown v. Board of Education (if formally neutral law like “courts should enforce contracts” may violate the Equal Protection Clause, then so may a formally neutral segregation law) and Palmore v. Sidoti (1984) (the child custody case most often quoted for the notion that “private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect”).  Viewed in that frame, Shelley is not the one-off that its reputation suggests.

I’d be interested to hear other nominees for one-off decisions, whose reasoning we are unlikely to see again, but that are nonetheless part of the current Con Law canon.  My other suggestion is the Spending Clause holding from NFIB v. Sebelius.

Posted by Aaron Caplan on June 11, 2015 at 11:11 AM in Constitutional thoughts, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (1)

The Chief, the First Amendment, and the assignment power

At CoOp, Ron Collins writes about Chief Justice Roberts' emergence as the Court's leading voice on the First Amendment, a voice that "is already towering over that of others on the Court." Collins emphasizes the number of free speech majority opinions Roberts has authored in his decade on the Court--13, far more than the next two Justices (Scalia and Kennedy) combined, usually (with several notable exceptions) upholding the free speech claim, whether for better or worse.

But as I wrote in a comment to Ron's post, counting majority opinions is confounded somewhat by the fact that, as Chief, Roberts wields the assignment power whenever he is in the majority. And one reason he writes so much more than any other Justice is that he keeps assigning these cases to himself. Obviously, Roberts must hold a generally highly speech-protective vision of the First Amendment (perhaps Collins is correct that it is the most protective on the Court) in order to be in the majority and thus in position to assign the opinion. But Chief Justice Warren also was consistently in the majority in free speech cases, also usually to uphold the constitutional claim. The difference is that Warren assigned many of these cases to Justice Brennan, which enabled Brennan to emerge as the Court's second great First Amendment voice.

Roberts could as easily have assigned some of these cases to, for example, Kennedy--who has joined most of Roberts' free speech opinions and thus shares a similar First Amendment vision--in the same way. That he has not done so could tell us many different things. It could be about Roberts' unique views of the First Amendment and his specific desire to carry the First Amendment mantle. But it also could be about Roberts' unique views of the assignment power.

Update: A reader shares this 2013 Judicature essay by Linda Greenhouse exploring Roberts' self-assignment practices, which notes the prevalence of First Amendment (including religion) cases that Roberts has kept for himself.

Posted by Howard Wasserman on June 11, 2015 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (8)

Tuesday, June 09, 2015

Strange Bedfellows #4: Jury Selection All Over The Place

This post is part of the Strange Bedfellows series.

Jury selection appears often in the Con Law canon.  The first SCOTUS case to find a violation of the Equal Protection Clause, Strauder v. West Virginia (1879), involved a statute that included only white men in the jury pool.  Hoyt v. Florida (1961), an anti-canonical case usually taught as an example of the bad old days before sex classifications were deemed (quasi-) suspect, involved a law that excused women from the jury pool.  Batson v. Kentucky (1986) involved a prosecutor’s peremptory strikes on the basis of race, but it tends to be taught in Criminal Procedure courses.  Its progeny Edmonson v. Leesville Concrete (1991) applied Batson to peremptory strikes in civil cases; it is taught more often in introductory Con Law courses than is Batson, because it is conceptualized as a case about the state action doctrine.  More recently, the first US Court of Appeals decision holding sexual orientation to be a (quasi-) suspect classification (included in my casebook) arose in the civil Batson context, after a gay man was peremptorily stricken from a jury deciding an antitrust claim against a manufacturer of HIV medications.  SmithKline Beecham v. Abbott Labs, 740 F.3d 471 (9th Cir. 2014).

These decisions are often taught and presented in casebooks as if jury selection just happens to be the factual setting in which a legal question (usually involving equal protection) just happens to arise. This is a lost opportunity, because the jury trial can be worthy of independent consideration in a Con Law survey course.  Even if not taught together on the same day or same unit, it can be valuable to use such cases to emphasize the jury as an institution of constitutional dimension.

Trial by jury is one of the few individual rights enumerated in the original constitution (in Art III, §2), and then reiterated and expanded in the 6th and 7th Amendments. Strauder considered jury service so important that it described ineligibility in terms usually associated with the badges and incidents of slavery: statutory exclusion from the jury pool “is practically a brand on them, affixed by the law, an assertion of their inferiority, and a stimulant to racial prejudice.”

Conversely, jury service can be seen as a badge or incident of citizenship. The jury allows ordinary citizens to control the workings of the judiciary in a way not possible for the legislative or executive branches.  Although Art. III judges are not selected through popular election, the jury makes the courtroom a site of self-government in action. This deep connection between jury service and voting explains why in most jurisdictions, one is eligible for jury service only if one is eligible to be an elector (voter).  Indeed, in 1887 the women in the state of Washington lost their statutory right to vote as a result of a criminal defendant’s challenge to the practice of seating women on the jury.  See The History of Women’s Jury Service in Washington (2005).

Cases involving jury selection can be a useful opportunity to consider the role of chance in the law.  I like to begin my Civil Procedure courses by identifying four main ways one might resolve private disputes: (a) negotiated agreement, (b) binding decision by third parties; (c) violence; and (d) chance.  Our system privileges voluntary agreement; it provides a judicial system as a backstop if agreement does not emerge, in hopes of avoiding reliance on violence and chance.  But just as the system cannot entirely eliminate violence (those judgments are ultimately executed through the threat of incarceration), it does not entirely eliminate chance, either.  Among the main ways the luck of the draw affects litigation is in the assignment of a judge, the summoning of a jury pool, and the selection of a petit jury.  In these settings, chance is tolerated, even if it might predictably result in deviations from the mean in any given case.  Chance has constitutional implications as well, as seen in the majority’s reasoning in Washington v. Davis (1976). Because we allow the occasional all-white jury as a natural consequence of a jury system that involves random selection, there must obviously be no constitutional bar to facially neutral government policies with racially disparate impact.

Finally, viewing jury selection as an independent constitutional topic can help show how any one case might involve more than one individual right—and indeed, how multiple constitutional guarantees can interact with each other to create an entire ecosystem of rights. As the Batson cases recognize, jurors have a right (as well as an obligation) to serve, while litigants have a right to trial by a representative jury.  The combination of these two principles were ultimately needed to overrule the holding in Hoyt, which rejected an Equal Protection Clause challenge to a statute that excused all women from jury service.  Hoyt’s reversal involved two steps. The first nail in Hoyt’s coffin was Taylor v. Louisiana, 419 U.S. 522 (1975), which held that a similar law violated the Sixth Amendment right to trial by a fair cross-section of the community; this defendant-centered case effectively overruled the result in Hoyt without addressing its equal protection reasoning. The right of women to serve as jurors as a matter of equal protection was finally announced in J.E.B. v. Alabama, 511 U.S. 127 (1994), which held that an attorney’s use of peremptory strikes to eliminate women violated Batson.

Posted by Aaron Caplan on June 9, 2015 at 12:02 PM in Constitutional thoughts, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (4)

Monday, June 08, 2015

Strange Bedfellows #3: Alcohol All Over The Place

This post is part of the Strange Bedfellows series.

For a topic that supposedly is not part of the standard Con Law curriculum, federal alcohol prohibition—and its repeal by the 21st Amendment—appears remarkably often in the typical syllabus. 

The two alcohol-related cases most firmly established in the canon and reproduced in whole or in part in virtually every Con Law casebook are South Dakota v. Dole (1987) (allowing Congress to condition receipt of federal highway funds on states raising their drinking ages to 21) and Craig v. Boren (1976) (adopting intermediate scrutiny for sex-based classifications under equal protection, in a case where state established different drinking ages for males and females).  Other alcohol cases sometimes taught in Con Law or related electives include Wisconsin v. Constantineau (1971) (invalidating on procedural due process grounds a statute allowing police to forbid sales of alcohol to problem drinkers), Larkin v. Grendel’s Den (1982) (invalidating on Establishment Clause grounds a zoning ordinance that gave veto over liquor licenses to nearby churches); 44 Liquormart, Inc. v. Rhode Island (1996) (invalidating state liquor advertising laws under the commercial speech doctrine), and Granholm v. Heald (2005) (invalidating under the dormant commerce clause doctrine a state law forbidding interstate direct-to-consumer wine sales while allowing similar intrastate sales). 

Although alcohol is a ubiquitous feature of fact patterns across many different doctrines, it tends not to be a focus of Con Law teaching.  One can understand why: food and beverage law is a niche practice that need not be studied by all law school graduates, and it is not tested on the bar exam.  As a result, the 18th and 21st Amendments can be safely treated as a source of constitutional trivia.  Did you know that the 18th Amendment is the only amendment to be repealed in full?  Did you know that the 21st Amendment was the only amendment that required ratification through state conventions rather than state legislatures?  Did you know that the 21st Amendment, like the 13th, has no state action requirement and can be directly violated by private individuals?  (On the latter point, see Laurence Tribe, “How to Violate the Constitution Without Really Trying,” in William Eskridge & Sanford Levinson, Constitutional Stupidities, Constitutional Tragedies (1998).)

One might ask what a unit in a Con Law class would look like if it foregrounded the 21st Amendment, instead of leaving it at the margins. 

Section 1 of the Amendment repealed the 18th Amendment, returning the Constitution to its pre-prohibition state, but Section 2 seeks (somewhat inartfully) to guarantee the power of a state to stay dry if it wishes: “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”  Does this represent no more than a federal ban on individuals violating state liquor bans (essentially constitutionalizing the similar federal statute upheld in Clark Distilling Co. v. Western Maryland Railway (1917))?  Or does it mean, as Justices Brennan and O’Connor argued in their Dole dissents, that Section 2 is designed to give states broader control over alcohol policy?  Under this reading, the textual references to transportation and importation connote a broader control.  One can ask similar questions about the 19th Amendment: perhaps it should have been read to guarantee a wide range of equal rights for women—as argued by the majority in Adkins v. Children’s Hospital (1923) and the dissenters in West Coast Hotel v. Parrish (1937)—instead of limited to its text, as occurred in practice. 

Students would readily see the pattern of the modern alcohol cases:  a state relying on a 21st Amendment argument will always lose.  To harmonize two arguably competing provisions of the Constitution, the Court routinely gives the 21st Amendment a narrow reading, where it essentially means that states may regulate alcohol so long as they do not violate any other provision of the constitution, be it enumerated rights (like equal protection, due process, religion, speech) or unenumerated structural concepts (like the dormant commerce clause), and subject to override by federal laws enacted under the commerce power that have preemptive effect.  But must the harmonizing always come at the cost of the 21st Amendment?  Take Craig v. Boren, which privileged the Equal Protection Clause over the 21st Amendment.  Given that Section 2 of the 21st Amendment was enacted decades after the Equal Protection Clause—and given the canon of construction that a later, narrower enactment should control over an earlier, more general one—perhaps the harmonization should operate in the other direction, so that a state may not discriminate on the basis of sex unless it is in the course of exercising its reserved power over alcohol.  That approach is legally possible, but unpalatable to our heirarchy of values.  Sex equality is simply more important than alcohol regulation, and so is freedom of speech, religion, and so on. But how is the importance of a constitutional value recognized, and should that be the business of the courts?

In a unit focusing on the 21st Amendment, the 5-4 decision in Granholm v. Heald would have special pride of place, since it explains how the language of Section 2 was designed specifically to interact with the Supreme Court’s then-existing dormant commerce clause doctrine.  If Granholm is taught as an example of the dormant commerce clause in a unit without a focus on alcohol, it would likely be drastically edited down to size.  But the case’s clash of values—and of interpretive methodologies—breathes more freely when one thinks about Granholm as an alcohol case as well as an interstate commerce case. 

Posted by Aaron Caplan on June 8, 2015 at 01:25 PM in Constitutional thoughts, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (0)

Friday, June 05, 2015

The return of summary adjudication?

For a long time, SCOTUS had a great deal of mandatory jurisdiction. Prior to 1976, actions to enjoin enforcement of constitutionally defective federal and state laws were heard by three-judge district courts with direct and mandatory review by SCOTUS. Prior to 1988, SCOTUS had appellate (mandatory) jurisdiction over state court judgments that invalidated federal statutes or upheld state statutes in the face of federal (usually constitutional) challenge. This obviously played some role (how much is an empirical question that I would like to explore someday) in the Court's docket being significantly larger from the '60s through the mid-'80s. One way the Court handled that larger docket was through summary and memorandum dispositions (both to affirm and to reverse) of some of these mandatory-jurisdiction cases (again, the numbers are for future exploration).

For now, I am wondering whether the Court's seemingly increasing practice of summary grant-and-reverse decisions--part of what Will Baude described as the Court's Shadow Docket and which Richard further discussed--reflects a return to this practice. Monday's decision in Taylor v. Burke (which I discussed Wednesday) is the latest example of the practice, which is especially prominent in certain types of cases (notably § 1983/qualified immunity and habeas) involving certain types of outcomes (predominantly, although not always, where the government/officer lost in the lower court). As before, summary procedures allow the Court to speak to and resolve a greater number of cases, even if not in the fullest fashion.

The difference is that the earlier practice was (at least arguably) necessary to handle the heavier caseload that Congress had imposed on the Court; the Justices could not address so many cases if they had to give plenary review to each of them. On the other hand, necessity does not dictate the current practice--the Court is not doing this because it has no other way to handle these cases or because it would be unduly burdened by giving plenary review to more cases. Instead, it reflects the Justices' strategic choice to reach more cases and issues, often towards a particular substantive end, but without expressly acknowledging an expansion of its jurisdiction or its certiorari practices and without, as Baude puts it, their "otherwise high standards of transparency and legal craft."

Posted by Howard Wasserman on June 5, 2015 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, June 04, 2015

Armstrong and Implied Public Rights of Action

Thank you to PrawfsBlawg and Howard for the opportunity to join the conversation as a guest blogger this month.  I'd like to begin by raising a question about the enforcement of federal law:  May federal courts imply public rights of action when Congress has not expressly authorized it?  

I have written about this question before here and, to a lesser extent, here.  The problem of implied public rights of action in favor of the United States and the states has some differences (and some similarities) with the problem of implied private rights of action in favor of private litigants.  Recently I've been mulling over the problem in light of Armstrong v. Exceptional Child Center, Inc.  (For Steve's and Howard's commentaries on Armstrong, which raise intriguing but different questions than mine, go here and here.)  The reason I've been mulling over Armstrong is Justice Breyer's concurrence, which suggests that the United States might have an implied public right of action to enforce the "equal access" mandate of the Medicaid Act even though private litigants do not.

Prior to Armstrong, implied rights of action under the Supremacy Clause had become an important way for beneficiaries to enforce federal regulatory programs.  For some time, however, this right of action had been on a collision course with the Court's retrenchment from implied private rights of action under federal statutes and private enforcement via Section 1983.  And in Armstrong they collided.

Writing for the Court, Justice Scalia explained the Supremacy Clause states only a "rule of decision" and does not support implied rights of action.  How, then, have federal courts granted injunctions against state officials without express congressional authorization?  Judge-made remedies, Justice Scalia responded, are appropriate "in some circumstances," such as in Ex parte Young.  Congress may, however, preclude judge-made equitable remedies and, the Court held, had done so by authorizing the Secretary of Health and Human Services to withhold Medicaid funding for violations of the statute.  

It remains to be seen how much private enforcement of federal law has been swept aside by the Armstrong Court.  One possibility is "not much."  As others have noted, the Court honed in on specific features of the Medicaid Act that it held precluded private enforcement.  

What I'm most intrigued by is what Armstrong portends for public, rather than private, enforcement.  Here's where Justice Breyer's concurring opinion interests me.  He suggested that "[i]f withholding funds does not work, the federal agency may be able to sue a State to compel compliance with federal rules."  Breyer cited Arizona v. United States, in which the Obama Administration sued to enjoin Arizona's "hand me your papers, please" immigration policy.  As I've explained elsewhere, the Administration relied upon an implied public right of action to enforce federal supremacy over immigration matters.  Justice Breyer's citation to Arizona presents a puzzle:  Why would Congress's selection of a public remedy to enforce the Medicaid Act implicitly preclude private enforcement but not additional public enforcement?  If anything, the argument might run, the specification of a public remedy implicitly precludes other public remedies but not private ones.

To press the argument further, we might say that Armstrong's interpretation of the Supremacy Clause sweeps away implied public rights of action in cases like Arizona v. United States.  Now that we know the Supremacy Clause doesn't support rights of action, the most obvious places to turn for judicial authority to imply public rights of action are Article II (when the federal executive sues), the specific constitutional or statutory provision at issue, or federal equity.  I've never been comfortable with the view that Article II alone implies and even requires public rights of action.  In some cases other constitutional provisions or statutory provisions will support implied public rights of action.  That leaves equity, which Armstrong reaffirms "in some circumstances."  Perhaps implied public rights of action for injunctive relief fit within those circumstances, but in some cases, including Arizona, that's far from clear.   

Comparing Justice Scalia's and Justice Breyer's opinions muddies the waters.  Justice Scalia offers some examples where federal courts may fashion equitable remedies.  Regulated parties are in, it seems, but beneficiaries of federal regulation (and the federal government in many cases) may be out.  Scalia also suggests the history of English equity matters, which recalls his restrictive approach to private remedies in Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc. and Great-West Life & Annuity Insurance Co. v. Knudson.  (For a fascinating discussion of these cases' restriction of remedies, see Judith Resnik's 2003 article.)  If the federal government cannot analogize itself to a regulated party claiming an immunity from state regulation, Scalia's vision of equity might preclude an implied public right of action.  By contrast, Justice Breyer's view leaves implied public rights of action against state officials largely, if not entirely, intact.  His concern was that private remedies may interfere with agency expertise.  And, not surprisingly, he was comfortable with an implied public right of action to give HHS another tool to enforce federal rules.  

Moving forward from Armstrong, it will be necessary to take greater care to tease out not only the distinction I'm raising here between implied private and public rights of action but also the distinction Mike Dorf draws here between statutory and constitutional enforcement.  Where the federal government claims that the Constitution itself (rather than a statute plus the Supremacy Clause) preempts a state's action, including in an immigration case like Arizona v. United States, both distinctions matter.  Thus, Armstrong raises interesting and practically important questions not just for private, but also for public, enforcement.   

Posted by Seth Davis on June 4, 2015 at 10:10 PM in 10th Anniversary, Civil Procedure, Constitutional thoughts, Judicial Process | Permalink | Comments (0)

Strange Bedfellows #2: Eugenics All Over The Place

This post is part of the Strange Bedfellows series.

It’s well known that Buck v. Bell (1927) and Skinner v. Oklahoma (1942) are the leading SCOTUS cases on the constitutionality of eugenic sterilization laws.  But the legacy of the eugenics movement appears elsewhere in the Con Law canon—including such greatest hits as Loving v. Virginia (1967), Washington v. Davis (1976), and Cleburne Living Center (1985). 

To best see the connections, it helps to know some of the history of intelligence testing.  Researchers in the early 20th century attached a number of terms, intended to be clinical, to levels of intellectual development considered abnormally low.  The two original terms were idiot and imbecile.  An idiot was pre-verbal, with no more intelligence than an infant.  An imbecile could use language, but had the intelligence only of a pre-pubescent child.  Later researchers became concerned that there was a class of adults who could speak and function above the imbecile level, but should still be categorized as abnormally stupid.  They might be good for factory labor, but they tended to be "immoral" and prone to "criminality."  These were the morons.  When Oliver Wendell Holmes, speaking of Carrie Buck’s genealogy, said that “three generations of imbeciles are enough,” he misspoke: at best, the allegation was that Carrie Buck was one of generations of morons.  And she wasn’t one of those either.  See Paul Lombardo, Three Generations, No Imbeciles, 60 NYU L. Rev. 30 (1985).  The blanket category for idiots, imbeciles, and morons was feeble-minded.

The quest to develop reliable tools to measure intellectual ability led to a number of tools still used today.  Some of these involve advanced statistics (as explained in Stephen Jay Gould’s 1981 book The Mismeasure of Man) but one of them is known to us all: the multiple choice test.  Psychological researchers were so convinced of the value of the technique that they convinced the US Army during WWI to give the new multiple-choice intelligence tests to draftees as a method of deciding who should be promoted to positions of command.  The officers were never convinced that the results would be valid for that purpose, but the researchers continued to hype the results, including at Congressional hearings.  Their alarming conclusion:  the United States was “a nation of morons.” 

Their conclusions were based on draftees’ responses to questions like these:

The Orpington is a kind of:
A. fowl
B. horse
C. granite
D. cattle

An air-cooled engine is used in the:
A. Buick
B. Packard
C. Franklin
D. Ford

Why is beef better food than cabbage? Because
A. it tastes better
B. it is more nourishing
C. it is harder to obtain

Researchers at the time did not recognize that their questions tested culture, not native intelligence.  An extremely bright draftee raised in poverty on a farm in the 1910s might be forgiven for not poring over the advertising copy for cars he could never afford and committing their features and brand names to memory.  Yet many were convinced that the nation would be better off if we could extirpate from future generations the morons who failed this and similar tests.

The nation’s flirtation with eugenics appears fleetingly on the surface of Cleburne and Loving.  In Cleburne, a city denied a zoning variance to a group home that fit within the city code’s definition of a “hospital for the insane or feeble-minded.”  As Justice Marshall’s carefully-researched dissent explained, this term was drawn from a Dallas zoning ordinance from 1929, during the thick of the eugenics movement.  473 U.S. at 467 n. 19.  The opinion in Loving indicates that Virginia’s then-existing statutory ban on interracial marriage was found in the Racial Integrity Act of 1924, a law “passed during the period of extreme nativism which followed the end of the First World War.”  The eugenic sterilization law upheld in Buck was passed by the Virginia legislature during the same legislative session, and for the same purpose: to ensure that future generations of Virginians would fit the current generation’s vision of genetic adequacy.

The connection to eugenics appears nowhere on the surface of Washington v. Davis, but to my mind it is equally strong.  That case challenged the Washington DC police force’s reliance on Civil Service Test 21 as part of its application process, even though the test was not validated to measure competence as a police officer and had disparate impact on the basis of race.  The opinion does not describe Test 21 in any detail.  My casebook includes some of the questions, which bear an obvious similarity to the WWI intelligence tests:

Of the following reasons, the one that best explains the continued sale of records in spite of the popularity of the radio is that the:
A) records make available the particular selections desired when they are desired
B) appreciation of records is more widespread than appreciation of radio
C) collection of records provides an interesting hobby
D) newest records are almost unbreakable
E) sound effect of records is superior to that of the radio.

Laws restricting hunting to certain regions and to a specific time of the year were passed chiefly to:
A) prevent people from endangering their lives by hunting
B) keep our forests more beautiful
C) raise funds from the sale of hunting licenses
D) prevent complete destruction of certain kinds of animals
E) preserve certain game for eating purposes

PROMONTORY means most nearly:
A) Marsh
B) Monument
C) Headland
D) Boundary
E) Plateau

Such questions are about as well-suited for the task of selecting police officers as the question about the Orpington (it’s a kind of chicken) was suited for selecting military officers.  Next time you get pulled over by the highway patrol, be sure to use “promontory” in a sentence; the officer will sense a kinship and let you off with a warning.  Although Test 21 was never used as a tool for shaping genetics, the DC Police Department shared a eugenicist’s assumption that a unitary form of intelligence can be detected and precisely ranked as a basis for making important life decisions. 

Scores on employment tests also appear in the facts of Griggs v. Duke Power (1971), Personnel Administrator v. Feeney (1979) and Ricci v. DeStefano (2009), but the opinions do not describe the questions asked.  If anyone knows the contents of those tests, please share them! 

Posted by Aaron Caplan on June 4, 2015 at 02:41 PM in Constitutional thoughts, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (0)

Wednesday, June 03, 2015

Strange Bedfellows #1: Carolene Products, Skinner v. Oklahoma, the Japanese Internment Cases, and West Virginia v. Barnette

This post is part of the Strange Bedfellows series.

For those accustomed to the silo method, this collection of cases will seem really weird.  “Barnette is a First Amendment case! Skinner is a fundamental rights case!  Hirabayashi and Korematsu are equal protection cases! Carolene Products is an economic substantive due process case! They don’t belong together!” Actually, they teach extremely well together, because each deals with the central question of choosing the appropriate level of judicial scrutiny.  Do some types of cases deserve more intense judicial review than others?

In the spring of 1937 the reasoning of the Lochner era came crashing down, and with it the Supreme Court’s commitment to skeptical review of economic legislation (whether that review involved the Commerce Clause, the Due Process Clause, or other areas of doctrine).  Carolene Products (1938) is part of that story, announcing a very deferential form of rational basis review for economic regulation, but including a footnote suggesting that courts might choose to be more stringent in individual rights cases.  Rather quickly—within the next six years, in fact—the Court had to decide if it was really going to adopt a two-level approach.

Reading Skinner (1942), the Internment Cases (1943 and 1944), and Barnette (1943) as part of this same question helps make sense of the choices made in those decisions.  Barnette, in particular, loses much of its power if it is saved purely for a First Amendment discussion.  The bulk of Justice Jackson’s opinion is devoted not to First Amendment reasoning, but to the propriety of the Court ever enforcing individual rights.  In stirring language, the majority concluded that judges were required to enforce the bill of rights vigorously.  Justice Frankfurter’s dissent is premised on the notion that the Constitution does not award the Supreme Court “greater veto power when dealing with one phase of ‘liberty’ than with another.” It's a case about judicial review that only happens to involve freedom of speech and religion.

Skinner (a eugenic sterilization case) is the first appearance of the term “strict scrutiny” and hence is a natural for any exploration of the rise of different levels of scrutiny.  The debate between the majority’s choice of an equal protection framework and the concurrence’s preference for a due process framework can be explained in part because the majority wanted to apply a stricter scrutiny, and felt that the Equal Protection Clause, rather than the Due Process Clause, made it possible.

My casebook also includes the Japanese Internment cases as part of this debate.  In Hirabayashi (upholding a curfew applicable to persons of Japanese ancestry), the Court expressly looked only for a rational basis behind the law.  Korematsu, a year later, expressly said that racial classifications are “immediately suspect” and subject to “most rigid scrutiny.”  That decision is widely viewed as a misapplication of strict scrutiny, but its choice of that frame was momentous.

In my experience, students make the connections quite readily. The interleaving of multiple doctrines (speech, due process, equal protection) as a way to explore a larger legal concept (levels of scrutiny) poses no problems.  In particular, it does not harm their later ability to properly cite the right case for the right principle in an exam.  Given that these cases all arose in the same historical time frame, there are huge benefits in combining them into a single unit.

Posted by Aaron Caplan on June 3, 2015 at 04:35 PM in Constitutional thoughts, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (0)

Guest Blogging: Strange Bedfellows

Thanks to the PrawfsBlawg for welcoming me as a guest for June 2015!

Early summer is a good time to think broadly about how we structure the courses we teach, before the daily and weekly deadlines start to constrain our choices.  In that spirit, I will devote this month’s guest posts to the theme of Strange Bedfellows in the Constitutional Law Curriculum: cases that are not ordinarily taught together, but could be. 

For many courses that rely on the case method, case selection can be a major outlet for a teacher’s creativity.  When teaching, say, the intentional tort of battery or the proper operation of Rule 11, one can find good vehicles from literally thousands of cases from dozens of jurisdictions.  This is less of an option for US Constitutional Law, which by its nature largely devoted to teaching a single text interpreted through a canon of famous (and infamous) cases.  If a Con Law teacher isn’t entirely happy with the facts or reasoning of Brown v. Board of Education as a teaching vehicle, it can’t simply be replaced with another opinion that better matches the teacher’s pedagogical goals.

The major creative choice in this course is to decide which relationships to emphasize among a basically fixed set of cases.  The usual approach structures the course into a series of doctrinal silos—e.g., begin with judicial review, then move to powers of Congress explored one at a time, then individual rights explored one at a time—with the cases assigned to the best-fitting silo.  Among the problems with this approach is that almost all of the important Constitutional Law cases involve more than one silo.  US v. Windsor (the DOMA case) is about Congress’s power over marriage and about fundamental rights and about equality and about the proper role of the judiciary and about methods of constitutional interpretation.  If we reduce our reliance on the silos, a case like Windsor (and virtually any other really important canonical case) contains many opportunities for comparison among cases that aren’t ordinarily conceptualized together.

The inspiration for this blogging project came while working on my new casebook, An Integrated Approach to Constitutional Law (out now!  don’t delay!).  The writing process made me realize that I am by nature a lumper, not a splitter.  I hope you will enjoy reading about some differently-structured lumps.

[To see the various posts that make up the series, click on the "Teaching Law" link below, and then scan the posts from June 2015.]

Posted by Aaron Caplan on June 3, 2015 at 04:23 PM in Blogging, Constitutional thoughts, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (0)

Next Stop: Crazyville, AL

(H/T for the title: My colleague, Tom Baker)

As I believe I have written here before, my law school mentor, Marty Redish, used to tell us that when our legal analysis matched our political preferences, we should go back and rethink the legal analysis [ed: To be clear: The conclusion may remain the same, but we should do it again to be sure.] I thus can feel a slight sense of academic pride in defending the various moves by Roy Moore and other officials and advocates in Alabama--people with whom I agree on virtually nothing--trying to stop marriage equality.

But this move about ends that. The relators in the state mandamus action have moved for "Clarification and Reaffirmation" of the mandamus order, in light of Judge Granade's decision to certify and enjoin plaintiff and defendant classes, effectively making the federal injunction statewide. The relators argue that Judge Granade has made her injunction superior to the state mandamus, that she overruled the state supreme court, that she created an unnecessary conflict, and that her decision is a "direct assault" and "unprecedented attack" on the mandamus order and on the state judiciary. In other words, the identical criticisms that people on the other side leveled against the relators and the mandamus given the existing federal injunction--but if those arguments were wrong then (and they were), don't make them now.. They also argue that Judge Granade should have abstained in deference to the state proceeding, particularly under Burford. More problematic is the rhetoric in the motion, which uses some form of the word "legitimate" or "illegitimate" around fifteen times in seventeen pages, both in describing Judge Granade's decisions, as well as in describing the likely eventual decision from SCOTUS.

Ulimately, I am not sure of the point of the motion. No one doubts the mandamus remains in effect. And no one doubts that probate judges might find themselves under conflicting orders (once the stay on the class injunction is lifted), which is inherent in concurrent jurisdiction and not such an unusual occurrence (especially given that abstention is always discretionary). And the relators are genuinely deluded if they believe, as they suggest in a long footnote, that the mandamus will have any effect on SCOTUS's decisionmaking in Obergefell.

Posted by Howard Wasserman on June 3, 2015 at 12:35 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

What hath Pearson wrought?

Michael Dorf and Scott Michelman comment on Monday's summary grant-and-reverse in Taylor v. Barkes, another qualified immunity case. The Court held unanimously that the right at issue (to have jails create and implement sufficient suicide screenings) was not clearly established; no SCOTUS precedent established such a right, the lower courts were divided, and Third Circuit precedent, even if it could clearly establish, was not on point. The analysis sounded very much like San Francisco v. Sheehan, which Richard discussed at the time.

I want to pull on a small thread that both Michael and Scott raise--how 2009's Pearson v. Callahan makes Taylor (and other cases) possible. Pearson overruled Saucier v. Katz, rejecting the rigid "order of battle" in which a court must first decide whether the plaintiff's right was violated on the facts at hand (on summary judgment or in the complaint) before considering whether that right was clearly established. Pearson unanimously held that, while this order of battle is typically appropriate, it is not required. A court may save judicial resources and time by deciding that a right is obviously not clearly established without getting into the weeds of a possibly difficult constitutional question. It is not surprising that lower courts have taken Pearson at its word and regularly assume a violation and reject the right as not clearly established (I discuss two examples from the Fifth Circuit, although with a focus on summary judgment analysis, here).

What is perhaps unexpected (I certainly did not anticipate it) is how the Justices themselves have used Pearson. It offers a simple, cheap, and powerful tool for protecting law enforcement officers and other government officials from judgments* the Justices regard as erroneous, without expending the time and resources on plenary review, necessitating substantive constitutional lawmaking (which Michelman discusses as something that can cut for or against civil rights plaintiffs), or violating the Court's self-imposed limit against granting plenary certiorari review solely for error correction. Pearson enabled the summary reversal in Taylor; the Court could get the defendants out from under the adverse decision in six pages, with little work and no need to engage in substantive Fourth or Fifth Amendment analysis. It similarly enabled Sheehan; the Court could hang onto and quickly resolve the "clearly established" issue, even while DIGing or avoiding the substantive issues and without having to really address the cert.-worthiness of that issue standing alone.

[*] Actually, not even judgments in most of these cases, but the erroneous denial of summary judgment or 12(b)(6) and the burden of having to litigate any longer.

Posted by Howard Wasserman on June 3, 2015 at 11:57 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)