Tuesday, July 14, 2015
Crazy in Alabama: Judicial Process and the Last Stand Against Marriage Equality
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.
Friday, July 10, 2015
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.
Wednesday, July 08, 2015
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)?
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.
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 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.
 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.
Tuesday, June 30, 2015
Some movement in Alabama
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.
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...)
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."
Obergefell in Haiku
At McSweeney's, Daniela Lapidous has helpfully condensed each of the opinions in Obergefell to a haiku. Chief Justice Roberts, for example:
I support you all
No, really, I do, but this
Isn't our problem
For the rest, see The SCOTUS Marriage Decision in Haiku. (Hat tip to Leah Lee.)
Strange Bedfellows #11: Subsequent History Surprises
This post is part of the Strange Bedfellows series.
Most Constitutional Law classes discuss how the system can correct its mistakes. If one branch or level of government errs, others can respond, pushing the substance of the law to a new equilibrium. Teaching the subsequent history of anti-canonical cases is one good way to demonstrate this point. Constitutional amendments erased Dred Scott and Pollock, later court decisions overruled Lochner, the Pregnancy Discrimination Act made Geduldig largely irrelevant, and the Georgia Supreme Court held that the sodomy statute upheld in Bowers v. Hardwick violated the state constitution. To show how SCOTUS does not always have the last word, my casebook includes short units called “Flash-Forwards” that tell the rest of the story (or at least some of it). Once students are attuned to possibilities outside the courtroom, they can have a good classroom discussion about what a concerned citizen, legislator, or executive branch official might do in response to a troubling court decision.
It is less common to spend time on the subsequent history of cases that are canonical—the ones considered good law, never overruled. As usually presented in casebooks, Cooper v. Aaron (1958), Palmore v. Sidoti (1984) and United States v. Carolene Products (1938) are all cases where the Court got things right, guiding the system to a proper equilibrium. But in each of these cases, the victory promised in the canonical opinion played out differently on the ground, with the results for the prevailing party being less than advertised. The subsequent histories of these canonical cases could in theory be as deserving of class time as the subsequent histories of anti-canonical cases—the basis for a discussion about the value of a court victory.
But I confess that I have not had the stomach to tell my students about some of them. Which of these would you put into your casebooks, and which stories would you save for the teacher’s manual?
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.
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.
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.
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.
Saturday, June 27, 2015
More on SSM in Alabama
According to WSJ, Alabama Attorney General Luther Strange (who remains under a district court injunction not to enforce the state ban), announced "While I do not agree with the opinion of the majority of the justices in their decision, I acknowledge that the U.S. Supreme Court’s ruling is now the law of the land." Although the Association of County Commissions yesterday recommended that probate judges wait for further word from either SCoA or Judge Granade, probate judges in many parts of the state declined to listen, including in Birmingham and Mobile. Four counties have refused to issue licenses to same-sex couples and eight are not issuing licenses at all.
Always read beyond the headline
Admit it. How many of you see this headline--Alabama judge: Marriage ruling worse than segregation decision--and thought Roy Moore was talking about Brown?
More of what happens next (Updated)
A follow up to this post and more details:
1) According to this story, Roy Moore is being . . . Roy Moore. He said Obergefell was worse than Plessy; continued to insist that there is no such thing as same-sex marriage in the Constitution; and he "can't say" whether same-sex marriages will happen in the state. This story shows Moore going even further around the bend, now accompanied by his wife, a conservative activist: Moore insists the Court not only lacked authority to issue the ruling, but that Ginsburg and Kagan should have recused, calling into question the validity of the decision. There is a good chance that someone in Alabama is going to be held in contempt.
2) But the same story indicates that Alabama Governor Robert Bentley said he disagrees with the decision, but he would "uphold the law of the nation and this is now the law."
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.
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.
For those of you who are inexplicably here rather than at SCOTUBlog, here is the 103-page opinion in Obergefell. Kennedy for five; dissents from each of the Chief, Scalia, Thomas, and Alito.
Thursday, June 25, 2015
Strange Bedfellows #10: Why So Tense?
This post is part of the Strange Bedfellows series.
A few blockbuster cases remain for SCOTUS to decide this term, and given the current make-up of the Court, this means a high likelihood of fire-breathing dissents. Teachers—and particularly casebook authors—need to decide which lessons, if any, to draw from these dissenting opinions. For myself, I always like to spend some time on at least a few throughout the semester, for what they teach us about the substance of the law and about the art of advocacy.
The substantive lesson comes in large part from considering which cases provoke verbal fireworks and which do not. At the outset, constitutional law is more likely than other legal subjects to provoke heat, and within the Con Law canon some topics provoke more flame wars than others. The flamer is trying to signal that something important is happening, so a suitable question for the class can be “why are they so upset?” This is especially valuable when a case that seemingly involves low stakes provokes what seems like a rhetorical overreaction, as in Caperton v. Massey Coal (2010) (judicial recusal) or BMW of North America v. Gore (1996) (punitive damages).
The advocacy lesson is equally important. The rhetoric in court opinions is worth teaching to law students not as literary criticism for its own sake, but as a model of lawyerly writing. Since we tend not to assign actual briefs to our students written by lawyers, their main exposure to persuasive legal writing takes the form of opinions written by the lawyers on the bench we call judges. When an opinion exhibits a style that deviates from the mean, it can be a good opportunity to discuss whether it was effective, and whether students should pursue a similar tone in their own submissions. My students may just be telling me what I want to hear, but they usually say that bluster turns them off—even though really good bluster can be pretty exciting. Good opinions for this kind of discussion include Justice Scalia’s dissents in Planned Parenthood v. Casey (1993) and US v. Virginia (1996), and Justice Blackmun’s self-involved hand-wringing in Casey and DeShaney v. Winnebago County (1989).
As a casebook author, I faced the question is how much to leave in. For Caperton (discussed in an earlier post in this series), I retained almost all of the dissents of Chief Justice Roberts and Justice Scalia, largely because both strive for Biblical stature in way that skeptics might consider borderline clownish. To demonstrate that the majority's constitutional rule (mandating judicial recusal when there is an objectively perceivable probability of bias) would be unworkable, Chief Justice Roberts posed a list of forty questions that would need to be resolved in future cases. Think forty days and forty nights, or forty years in the wilderness. Most casebooks seem to edit down the list; you get the point pretty quickly. But I decided to keep the whole thing (four pages worth)—because it is revealing to ask students during class how many of them actually read all forty. The honest ones will admit they skipped it, just as I did the first several times I read the opinion. The overblown Roberts dissent presents a good opportunity to discuss when less is more.
As for Justice Scalia’s Talmud-quoting dissent in Caperton, I kept it largely for his last sentences, which were these: “The relevant question, however, is whether we do more good than harm by seeking to correct [state courts] through expansion of our constitutional mandate in a manner ungoverned by any discernable rule. The answer is obvious.” (emphasis added) Anytime somebody tells you the answer to a contested legal question is obvious, or that a question answers itself (as in the inexplicable Goesaert v. Cleary (1948), discussed in an earlier post), it’s time to reach for your revolver.
Wednesday, June 24, 2015
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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."
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.
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:
An air-cooled engine is used in the:
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:
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!
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.
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.]
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.
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.
Wednesday, May 27, 2015
"Should Washington Try to Change Religious Beliefs?"
. . . The idea that public authorities and officials should take editorial aim at certain religious beliefs and revise them to better serve the government's needs should make Americans uneasy. It seems to conflict with foundational and constitutional commitments, with James Madison's famous assertion that religion is "wholly exempt" from the "cognizance" of "civil society," and with Thomas Jefferson's insistence that the "legitimate powers of government" don't extend to religious views because "it does me no injury for my neighbor to say there are 20 gods, or no god. It neither picks my pocket," he quipped, "nor breaks my leg."
In fact, though, governments do care — even if they do not always admit it — about what religious people believe and what religious leaders teach. . . .
Religious freedom under law is an accomplishment, one that is both relatively new and always vulnerable. It is vulnerable precisely because it is often inconvenient to political authorities and officials. The constitutional rules that governments are supposed to keep out of religious disputes and stay away from religious questions are good ones, but it is important to remember that they cut strongly against what they have always done and probably always will try to do. And so, if we value religious liberty and freedom of conscience, we will be on guard not only against overt change-campaigns like China's but also against nudges, temptations, and bribes from our own leaders.
Thursday, May 21, 2015
Class certifcation in Alabama SSM litigation
Judge Callie Granade of the Southern District of Alabama took a giant step towards establishing marriage equality throughout Alabama. Judge Granade finally granted the motion for class certification in Strawser. She certified a plaintiff class of
all persons in Alabama who wish to obtain a marriage license in order to marry a person of the same sex and to have the marriage recognized under Alabama law, and who are unable to do so because of the enforcement of Alabama's laws prohibiting the issuance of marriage licenses to same sex couples and barring recognition of their marriages.
And she certified a defendant class of
all Alabama county probate judges who are enforcing or in the future may enforce Alabama's laws barring the issuance of marriage licenses to same-sex couples and refusing to recognize their marriages.
In a separate order, she extended the preliminary injunction, previously entered against Probate Judge Don Davis, to Probate Judge Tim Russell and the rest of that defendant class, prohibiting them from enforcing the state's same-sex marriage ban and requiring them to issue licenses to any member of the protective class who follows the proper steps towards obtaining a marriage license. But Judge Granade then stayed the injunction pending SCOTUS resolution of Obergefell, which is "imminent."
Thoughts on the order and where this leaves us after the jump.Assuming (as everyone expects) Obergefell establishes Fourteenth Amendment protection for same-sex marriage, Judge Granade will immediately lift the stay, establishing a binding injunction prohibiting enforcement of the Alabama SSM ban effective throughout the state and guaranteeing every same-sex couple a marriage license. That injunction is necessary to put Obergefell into effect in the state, since that decision will have nothing to say directly to Alabama law or to any Alabama officials. And because it protects all possible couples and binds alll possible probate judges, it spares couples the trouble of having to initiate individual litigation against individual judges to obtain injunctions in light of Obergefell.
Judge Granade also swept aside various arguments that the federal court should defer to the state mandamus prohibiting probate judges from issuing marriage licenses to same-sex couples. Rooker-Feldman, the Anti Injunction Act, and every other abstention doctrine were inapplicable, since the plaintiffs were not parties to the state mandamus proceeding and, in any event, the federal injunction preceded the state mandamus.
Granade further insisted that, pursuant to the Supremacy Clause, the federal injunction enforcing the Fourteenth Amendment trumps state law and the state mandamus action, citing SCOTUS' discussion of the Supremacy Clause and Ex Parte Young from Armstrong. As she put it, the defendants "cannot be held liable for violating Alabama state law when their conduct was required by the United States Constitution."*
* I actually believe Judge Granade's analysis is wrong on this point. The conflict here is not between a state law and a federal injunction applying the Fourteenth Amendment against that state law. The conflict is between two judicial decisions and orders--one state, one federal--interpreting the Fourteenth Amendment. The Supremacy Clause does not raise the federal order above the state order. Judge Granade's view that the Fourteenth Amendment requires defendants to issuance of licenses does not trump the Alabama Supreme Court's view that the Fourteenth Amendment does not require, and in fact prohibits, issuance of those licenses. This analysis again reflects the erroneous view that one district court's declaration establishes the meaning of "the Constitution."
The correct answer is that there is, indeed, a potential conflict between the two orders. But the state mandamus expressly allows probate judges to show that they are under a conflicting federal obligation, offering a basis to be relieved from the state mandamus. In other words, the state court order itself eliminates any federal-state conflict, obviating the need for the federal court to avoid the conflict by staying its hand.
Of course, it would not be Alabama if someone did not misstate what is going on. Today, it was the Southern Poverty Law Center, which stated that this decision "ends the chaos and confusion that Attorney General Strange and Chief Justice Moore have intentionally caused through their reckless rejection of federal constitutional principles." As I have written and continue to write, I am not quite sure what "federal constitutional principles" Strange or Moore have rejected. That is, unless "any decision with which we agree, even a non-binding precedent from a single district judge, must be binding on everyone everywhere" is a federal constitutional principle.
Monday, May 18, 2015
SCOTUS Will Decide Whether Class-Action Defendants May "Pick Off" Putative Class Representatives
The Supreme Court today agreed to decide a question that has long plagued lawyers on both sides of the class-action bar: whether a defendant may render a claim moot, for purposes of Article III, by tendering complete relief to a putative class representative.
There are three questions presented in Campbell-Ewald Co. v. Gomez (No. 14-857). The first is a threshold question: whether tendering complete relief moots a claim even outside the class-action context. But the Court, in articulating the second question, anticipated the possibility that the answer might be "different when the plaintiff has asserted a class claim under Federal Rule of Civil Procedure 23, but receives an offer of complete relief before any class is certified." (The third issue in the case relates to immunity for government contractors, which the Court could theoretically decide and not reach the other two.).
If the Court holds that an offer can moot a claim, it may also have to decide whether the timing of the offer makes a difference. Does it matter whether the plaintiff has already filed suit? Presumably not, because most class-action plaintiffs (at least in actions seeking monetary damages) do not reveal themselves before filing. Does it matter whether the plaintiff has moved for class certification at the time of the offer (as some courts have suggested)? Does it matter how far the class-certification proceedings have gone? All this remains to be seen. All we know at this point (based on the phrasing of the question) is that the Court will not likely permit an offer after certification to render the claim moot (which makes sense, because at that point the unnamed class members have been joined in the lawsuit, albeit in absentia).
The outcome of this case is as likely to be guided by policy as by constitutional doctrine, especially if the Court finds that an early settlement offer does not moot the action. Courts that have rejected mootness in this context have expressed concern over the practice of "picking off" putative class representatives one by one, leaving the plaintiff bar with no economic incentive to vindicate the interests of the class as a whole.
How do you see this case coming out?
Thursday, May 07, 2015
Same-Sex Marriage: The (Ted) Kennedy Legacy
The odds-makers are generally in agreement that the deciding vote in Obergefell v. Hodges will be Justice Kennedy. While some have speculated that Chief Justice Roberts will find a way to join in a majority judgment (if not majority opinion) recognizing a Constitutional right to same-sex marriage, the more-prevalent view is that the liberal-conservative stalwarts on the Court will split 4-4 and that Kennedy will cast the decisive fifth vote one way or the other. If he sides with the proponents of same-sex marriage, the winners will have another Kennedy to thank, albeit posthumously, for that result: Senator Ted Kennedy.
The narrative goes like this:
In 1987, Justice Lewis Powell retired, leaving President Ronald Reagan his third Supreme Court vacancy to fill. (The first occurred when Potter Stewart retired, and President Reagan appointed Sandra Day O'Connor. The second occurred when Chief Justice Warren Burger retired, and President Reagan elevated William Rehnquist to the Chief Justice seat and appointed Antonin Scalia to fill the vacancy.) Reagan nominated Judge Robert Bork of the D.C. Circuit, leading to the infamous confirmation hearing that ended with a Senate vote rejecting Bork, 58-42.
Bork’s greatest and first nemesis in that nomination process was Senator Kennedy, who took to the Senate floor and urged that “Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.”
Notably absent from that floor speech was any notion of rights for gays and lesbians. Remember, this was 1987. Bowers v. Hardwick, the 1986 case that permitted states to criminalize sexual conduct between members of the same sex, was fresh law (and remained on the books until 2002, when Justice Kennedy wrote the decision in Lawrence v. Texas that overturned it).
Kennedy's speech galvanized the Senate, and the nation. Vice-President Joe Biden, then a senator and chair of the Judiciary Committee, had his own field day during the committee hearings. I was a fresh-faced first-year law student, and the protests on my law-school campus made indelible impressions on me. When Bork was ultimately defeated, we knew we had won. We didn't quite know what we had won, but we knew we had won something.
President Reagan next nominated Douglas Ginsburg to fill Powell's spot, but Ginsburg withdrew after reports surfaced that he had used marijuana. (Remember, it was 1987.) So Reagan turned to Anthony Kennedy. And here we are today.
Bork died in 2012. Had he won confirmation and remained on the Court until his death, President Obama would have been in office at the time of the vacancy. Given the likelihood that Obama would have appointed a justice favorably disposed to same-sex-marriage rights, some might say that blocking the Bork nomination had no ultimate impact on this issue. But it’s important to remember that Obergefell did not materialize out of thin air. It comes following years of development of legal protections for gay, lesbian, and bisexual people: (1) the Kennedy opinion in Romer v. Evans, which in 1995 struck down a state constitutional provision banning anti-discrimination laws protecting gays, lesbians, and bisexuals; (2) the 2002 Kennedy opinion in Lawrence; and (3) the 2013 Kennedy opinion in United States v. Windsor, overturning a portion of the Defense of Marriage Act.
So some credit is due to Senator Kennedy, arguably responsible (at least in part) for the ultimate nomination of Justice Kennedy. And that Kennedy-Kennedy legacy may end up making a bigger mark on history when the Court announces the Obergefell decision at the end of June.
Sunday, May 03, 2015
During the break between the petitioner and Solicitor General arguments on the first issue in Obergefell, a protester began screaming about how the Bible tells us that supporters of gay marriage will burn in hell, it's an abomination, etc. After the guy was pulled out of the courtroom (apparently it took four officers), the Chief offered Donald Verilli an extra minute to compose himself; Verilli first accepted, then declined. As Verilli was moving to the podium to begin his argument, Justice Scalia said "It was rather refreshing, actually," which was met with laughter from the gallery. (The whole thing is at pp. 27-28 of the transcript and at the very end of the petitioner's argument on the audio).
Jeffrey Toobin argued that the real ugly part was not the outburst, but Scalia's "shameful" joke. According to Toobin's article, expanded upon in this Political Scene Podcast, what Scalia found "refreshing" was that someone inside the courtroom was finally making the real argument against same-sex marriage--moral condemnation of homosexuality and LGBTQ people--rather than the sterile and ultimately incoherent arguments about accidental procreation and "biological moms and dads." Scalia was not joking; he was endorsing the viewpoint expressed by someone intentionally disrupting the proceedings and regretting that viewpoint's absence from the actual proceedings. Toobin even suggested that the response was not real laughter, but shock at what Scalia had said.
Honestly, it never occurred to me that Scalia was suggesting that this was the "real" argument that he wished would be made in the case. I heard this as genuine laughter rather than shock at Scalia's provocativeness (the advantage to being able to hear the argument, not just read it). It certainly is unusual for a justice to comment on courtroom protests, much less through a joke--and perhaps it is inappropriate. Perhaps Scalia meant that the protest broke the tension of the argument. If so, we can note that Scalia never finds the anti-Citizens United protests "refreshing," suggesting he simply was reacting to the rare protester who is not on the opposite side of an issue as he is. And that, too, might be inappropriate.
But was Scalia really "endorsing" the views expressed? Is Toobin right about this? Or is this another example of simplistic and reductivist coverage of the Court? And am I being too forgiving of Scalia?
Friday, May 01, 2015
Why is Glossip hard?
The following is by Corinna Lain (Richmond).
I’ll be guest blogging in June, and am very much looking forward to sharing ideas and, hopefully, generating conversation then. But after listening to this week’s oral argument in Glossip v. Gross, the lethal injection case currently before the Supreme Court, I feel the need to share now.
And here’s what I can’t figure out: why is this case hard?
We’ve got a district court that essentially upheld Oklahoma’s use of midazolam as the first drug in its 3-drug lethal injection protocol against a claim that it would not, and could not, insulate the condemned from the pain associated with the next 2 drugs of the protocol. The pain associated with those 2 drugs is undisputed—one of them is a paralytic that slows and then stops the diaphragm so the condemned slowly suffocates to death, and the other has been dubbed “liquid fire” because it produces the feeling of being burned alive. The Supreme Court has already held that if the first drug doesn’t insulate the condemned from feeling the last two drugs, that’s a violation of the 8th Amendment cruel & unusual punishments clause. So it all comes down to whether midazolam can reliably do that.
So back to my question: why is this case hard?
Midazolam is a sedative, not an anesthetic; it is uncontested that it has no anesthetic properties. The district court said that didn’t matter, relying on a doctor who opined that 500 milligrams of midazolam was enough to kill someone, so even if it wasn’t an anesthetic, it would still render condemned inmates unconscious so they wouldn’t experience the pain. The problem with that is (1) the doctor’s opinion was extrapolated from an estimated lethal dose amount and he made a math error of 3 decimal points in doing so, so the correct estimated lethal dose is actually 4,970 milligrams rather than 4.97 milligrams or even 497 milligrams (an error that is uncontested); (2) even if the drug was lethal at the 500 milligram amount, just because a drug is big & bad enough to kill you doesn’t mean it’s going to render you unconscious and unable to feel pain first; (3) even the sources upon which the doctor relied were sketchy—drugs.com (which explicitly states that its information “is not intended for medical advice, diagnosis or treatment”) and OSHA’s material safety data sheet (which explicitly disclaims “any warranty, express or implied, regarding its correctness”); and (4) there’s a clear consensus in the scientific community that goes entirely the other way. Interestingly, the Court now has an amicus brief by a group of pharmacology professors who are not in support of either side, but want the Justices to at least get the science right. And what they say is that midazolam is incapable of rendering the condemned unconscious at a level that would resist ‘noxious stimuli’ like surgery and pain-inducing drugs.
So you might be thinking how in the world did we even get here? My take is it’s all too easy to dismiss these claims as just another condemned inmate trying to get another day. And you can see this dynamic at the oral arguments in Glossip.
So while Justice Breyer is scratching his head trying to find something, anything, that actually supports the district court finding, and Justices Kagan and Sotomayor are taking Oklahoma to task for quoting medical propositions out of context and misleading the Court, Justices Scalia and Alito have a different point to make: this is all the abolitionists’ fault.
You have to be able to point to a better drug to get the job done, they say, and the reason better drugs aren’t available is because abolitionists have put pressure on drug manufacturers not to sell them (or at least not to sell them to executioners). They’re right about the pressure (kinda sorta—this is largely about European abolitionism, as a forthcoming article shows) but they’re wrong about the condemned having to come up with a lethal injection protocol that works in order to avoid a torturous death with a lethal injection protocol that doesn’t.
So long as capital punishment is legal, there has to be a constitutional way to carry it out, so the argument goes. I think that’s contestable, but even assuming it were true, the Supreme Court has already upheld a number of other execution methods, so the availability of other lethal injection protocols is a red herring. Weird as it sounds, I think there’s a good argument for the firing squad as a more humane method of execution, though I’ll save those musings for my stint as guest blogger. The point is this: if an execution method causes lingering death and/or unnecessary pain (and everything we know about midazolam suggests it does both) then that violates not just our sense of decency, but the constitution as well. And that’s true whether there’s a better lethal injection protocol out there or not.
So why is Glossip a hard case? Best I can figure, it’s because frustration with the success of abolitionists has created a blind spot on the law.
Thursday, April 30, 2015
Upon further review . . .
I am rethinking my two posts on what happens in the lower courts outside the Sixth Circuit if the Court rejects marriage equality in Obergefell. I stand by my earlier suggestion that state officials will go back to the district court to dissolve the injunction.
But on further consideration, I am not sure this is significant or even necessary. And the reason goes back to the limited scope of the actual injunctions. None of the cases involved class actions; all were individual plaintiffs (generally 3-4 couples). Thus, when SCOTUS denied cert., state officials were obligated by the injunction only to issue licenses to the named plaintiffs, which they did. They were not obligated by the injunction to issue licenses to anyone else and no one else was entitled by the injunction to a license. So it is not the injunction that obligates state officials in California, Illinois, Utah, etc., to issue licenses to same-sex couples--it is the circuit precedent and the knowledge that they will be sued, enjoined, and made to pay attorneys' fees if they do not issue the licenses to new couples.
So there is no pressing reason for Scott Walker to get the Wisconsin injunction dissolved after Obergefell, at least in avoiding issuing new marriage licenses, although he will do it anyway. The injunction is not imposing any current obligations on him.
Wednesday, April 29, 2015
Fontana and Braman empirically test the countermajoritarian difficulty
David Fontana and Donald Braman (both of GW) discuss their study showing that, on the question of marriage equality, people do not [ed: oops] care whether marriage equality is established by SCOTUS or by Congress. Opinions on same-sex marriage were unchanged by the institution that established it.
What if SCOTUS rejects marriage equality?
I have not yet read/listened to the Obergefell arguments (I plan to get to it as soon as I finish writing this), although I have read some reports. I am fairly confident the Court will declare that SSM bans are invalid (and I am kind-of confident it will be a 6-3 vote).
But for now, suppose the Court goes the other way and holds that the Fourteenth Amendment does not guarantee marriage equality and does not require states to recognize out-of-state same-sex marriages. After the jump, I want to consider four procedural questions: 1) What do the states do where same-sex marriage has come via federal court order that has become final (including all the cases in which SCOTUS denied cert. last fall, as well as California); 2) What do the states do where a district court judgment invalidating the state ban is pending on appeal but was not stayed? 3) What happens to the same-sex marriages that have been entered in those states where the federal decision has gone to final judgment? 4) What happens to the same-sex marriages that have been entered in those states in which the district court decision is on appeal but has not been stayed (e.g., Florida and the four couples in my beloved Alabama)?
1) The states return to the district court supervising the injunction with a motion to dissolve under FRCP 60(b)(5) or (b)(6). The argument is that there has been a "significant change" in the legal circumstances, in that the conduct the injunction prohibited (denying marriage licenses to same-sex couples) has become constitutionally permissible; the injunction thus is no longer equitable, as it is based on a judicial decision that is no longer valid in light of the prevailing understanding of the Fourteenth Amendment announced by SCOTUS. It seems pretty obvious that an injunction based on some extrapolation from Windsor, Lawrence, Romer, and general Equal Protection principles cannot survive a decision from SCOTUS expressly declaring that same-sex marriage bans do not violate the Fourteenth Amendment. So the motion will be granted, the injunction will be dissolved, and the state law barring issuance of licenses to same-sex couples will again be enforceable.
2) This situation presents three paths to the same outcome. First, these states could simply present Obergefell to the court of appeals, which will apply it to reverse the district court judgments and to order final judgment entered in favor of the states on the constitutional issues. Alternatively, the court of appeals could shift the work back to the district court by summarily vacating and remanding for reconsideration in light of Obergefell, with the district court itself applying Obergefell to enter judgment in favor of the state. A third possibility is for these states to file the sameRule 60(b) motion in the district court. Under FRAP 12.1 and local rules in several Circuits (including the Eleventh, one of the places in which appeals are pending), a district court can make an "indicative ruling" on a motion (including a Rule 60(b) motion) that it otherwise lacks jurisdiction to resolve because the case is in the court of appeals; if the district court indicates its intent to grant the motion, the court of appeals can remand the case to allow the district court to grant the motion and to enter the revised judgment. Under any approach, the result is that the injunction will be dissolved and the state ban on same-sex marriage again becomes enforceable.
3) These marriages remain valid. The states granted licenses to these couples under a federal injunction that had been appealed and had become final. The state of the law in these states was that prohibitions on same-sex marriage were invalid and unenforceable, meaning these couples were legally entitled to those licenses and state officials were legally obligated to grant them. And that remained the state of the law until the district court dissolved the injunction.
4) I am not sure of the answer to this. Mike Dorf argued here that there is no basis in federal constitutional law to "grandfather" some marriages, which would effectively give permanent force to a judgment that has been subsequently reversed. The validity of these marriages ultimately would be a matter of state law, unhindered by the U.S. Constitution. That sounds right, but I welcome competing arguments.
Saturday, April 25, 2015
If I've lost the media . . .
I have made pretty clear my view that the Alabama Supreme Court and Alabama public officials have not been defying federal courts or federal law over same-sex marriage, given the limited scope of district court orders and injunctions. And I thought I had convinced Emily Bazelon when she wrote this, based in part on interviews with Orin Kerr and with me.
But then on Friday's Slate Political Gabfest, in a preview of next week's Obergefell arguments, Bazelon used the words "rebel" and "defy" to describe recent events in Alabama. Oh well. A subsequent email exchange indicated differences in views about the interaction between the mandamus and the federal injunction and the effect of each on the other. In my view (which I explain further here), the injunction only obligated one probate judge, Don Davis, to issue licenses to the four couples who are plaintiffs in Strawser, which he did. At that point, the mandamus did not impose any obligations on Davis or anyone else that competed or conflicted with obligations from the federal court. We are back to one (functionally) lower federal court disagreeing with another lower federal court about federal law. That is disagreement, not defiance or rebellion.
Thursday, April 23, 2015
Forum selection, upside-down
The family of Michael Brown has filed a civil rights action against the City of Ferguson, the former Chief of Police, and Darren Wilson. The complaint is a bit confusing. It appears to assert multiple individual, supervisory, and Monell counts for Fourth and Fourteenth Amendment violations, including a claim for loss of familial relationship under the Fourteenth Amendment, as well as excessive force. The complaint goes after Ferguson's larger patterns-or-practices of unconstitutional behavior, describing events going back as far as 2010. At the same time, the introduction describes it as a wrongful death action under Missouri law for violations of the U.S. and Missouri constitutions, even though the state Constitution is never mentioned again and no torts (battery, whatever) are asserted.
It is noteworthy--and puzzling--that the family filed in state rather than federal court. There is nothing state-based about the legal rights actually asserted in the Complaint; this is a straight-forward § 1983 claim asserting federal constitutional rights. The idea behind federal question jurisdiction was to offer parties the expertise and respect for federal law and federal rights that federal judges offer, as well as the freedom to protect those rights that comes with Article III protections. And that idea takes on special importance when asserting constitutional claims against local governments and local government officials that only became possible with the Fourteenth Amendment, where federal judges are insulated from the local pro-government pressures that might work against civil-rights plaintiffs. Indeed, arguments against congressional jurisdiction-stripping always have fought against the bogeyman of plaintiffs forced to pursue federal constitutional rights against local government institutions before an uninsulated local judiciary.* Has federal judicial procedure--Twiqbal, summary judgment, limits on discovery--become so hostile to civil rights plaintiffs and so pro-defendant that plaintiffs would prefer to litigate against a local government in state court? Consider that the two biggest hurdles that § 1983 plaintiffs regularly face--qualified immunity and the heightened demands for making a Monell claim--follow them into state court anyway. So why pick state over federal in this type of case?
Addition: Note that I am assuming the choice was strategic rather than familiar. The three lawyers on the case include one attorney from Clayton, MO and two from Tallahassee. The web site for the latter two indicates that they largely specialize in personal injury and automobile accident cases, although Civil Rights is listed as a practice area. I cannot find anything about the local attorney (who has been in front of the media since the fall). If all three are primarily PI lawyers who primarily litigate in state court, the choice of forum might simply have been an automatic move rather than a deliberate choice based on specialized understanding of § 1983 litigation.
The interesting question is whether the defendants remove, seeing as how they might see themselves as being in an advantageous position in either court.
The First Amendment and the Redskins’ Trademark, Part II: A Shot Across the Bow from the Federal Circuit
The following post is by Christine Haight Farley and Robert L. Tsai (both of American); it is their second guest post on the Washington Professional Football Team trademark case. It is cross-posted at the Sports Law Blog.
On Tuesday, the Federal Circuit issued a unanimous decision (In re Tam) holding that the mark THE SLANTS was properly refused registration because it is disparaging to people of Asian descent. Since 2010, Simon Shiao Tam, the front man for the Asian-American rock band “The Slants,” has been trying to obtain trademark recognition for the name of his band. The record shows that the band picked the name by thinking of “things that people associate with Asians. Obviously, one of the first things people say is that we have slanted eyes.” The record of the case confirmed that “slants,” used in the way proposed, would likely be received as a racial slur.
The fact that the registrant wished to re-appropriate an ethnic slur and try to create a positive connotation did not alter the outcome. Nor was the Court troubled that the user’s own race formed part of the background for assessing the objective meaning of the mark in commerce. Both of these jurisprudential choices are consistent with the Federal Circuit’s approach to statutory interpretation, which strives for an objective meaning of trademarks in actual use. In our view, the private cooptation of illiberal ideas can generate terrific art and might very well help to change social meaning in the long run. But you don’t need trademark protection to engage in such projects of appropriation; indeed, granting one user legal protection might even stifle others who would like to experiment further with taboo ideas.
In re Tam now makes it two cases on trademark disparagement that the Federal Circuit has ever decided—both have been in the past year and both affirmed the TTAB’s finding of disparagement. The court obviously felt bound by precedent. Nevertheless, Judge Moore, the author of the 11-page majority opinion, offered 24 pages of what was styled “additional views," but which read more like a petition for rehearing en banc on the constitutionality of § 2(a) of the Lanham Act.
Though not binding, this last bit by Judge Moore may prove most interesting of all. The judge offered many reasons for wanting to revisit the Federal Circuit’s position on the constitutionality of § 2(a): its 1981 decision In re McGinley did not cite any authority, its analysis consists of only a few sentences, the decision has been criticized in the intervening years, jurisprudence on the unconstitutional conditions doctrine and the protection accorded commercial speech has since evolved, and the source of the PTO’s funding has shifted from tax payers to user fees.
The judge contends that In re Tam presents an unusually strong case for considering trademarks as protected speech since the applicant intended to use the mark to reclaim Asian stereotypes and to participate in a political and cultural discourse about race as a musical artist. At oral argument, the judge tried to distinguish this feature of the case from the Redskins case.
But the main thrust of Judge Moore's constitutional challenge to § 2(a) is based on the unconstitutional conditions doctrine, which holds that the government cannot deny access to a government benefit on the basis of the recipients exercise of constitutionally protected speech.
In claiming that the benefits of registration are not just procedural, but are also substantive, Judge Moore states that a disparaging mark “cannot be protected by its owner by virtue of a § 43(a) unfair competition claim” because “§ 43(a) protection is only available for unregistered trademarks that could have qualified for federal registration.” (emphasis in original). This is a bold claim not exactly supported by the cases she cites. The Supreme Court’s Taco Cabana decision simply says that “the general principles” under § 2 are “for the most part applicable” in determining whether an unregistered mark is protectable. That’s right because for the most part, these general principles are common law doctrine codified in the Lanham Act. No case yet holds that the owner of a disparaging mark would not be able to assert common law rights against an infringer, but in a 2013 decision the Federal Circuit did suggest that an unregistrable common law mark may receive protection under § 43. As we argued in a previous post, variations in the availability of legal remedies are better understood as procedural changes rather than subsidies of private speech.
By focusing on the benefits of registration, Judge Moore loses sight of the significance of registration. Although in civil law countries trademark registration generally confers rights, in the US trademark rights are created by using a mark in commerce and developing good will. Registration is “essentially a recognition of a right already acquired by use.” At the same time registration is encouraged because it provides notice of rights—hence the benefits that flow from registration. These benefits, however, are distinguishable from benefits conferred by the government in other unconstitutional conditions cases, which typically involve direct subsidies of speech. In the case of trademark registration, the government is literally approving of certain trademarks; the symbol of trademark registration—the “R” in a circle—is a statement by the trademark owner that the government has approved, not its business or its goods, but the mark itself. Such approved trademarks are included in the government’s registry, or list of marks certified by the government. No other unconstitutional conditions case involves such symbolic acts of endorsement by the government, but instead involve unseen deeds such as exemptions from taxes or import duties.
The limited nature of the denial of registration seems to be lost on Judge Moore. The PTO’s refusal to register disparaging trademarks does not force the owner of a disparaging mark to relinquish a constitutional right. The owner can continue to use the mark. In cases where the Supreme Court has found an unconstitutional condition, the speaker has few realistic options other than to cease engaging in a particular form of speech in order to avail itself of a valuable government benefit. No such forced choice results from § 2(a). Because the registration system parallels common law trademark protection, some of which is enshrined in the Lanham Act, the owner of a disparaging mark can continue to engage in its chosen speech and endeavor to have it protected as a common law trademark.
Perhaps worst of all, Judge Moore's application of the presumption against content-based regulations to § 2(a) has no limit. If all trademarks are constitutionally protected speech and the act of registration is the conferral of a substantive benefit, then when may the PTO make a content-based determination that affects registration without violating the First Amendment? The Lanham Act also requires the PTO to refuse registration to marks that consists of simulations of state insignia and marks that include the name of a president. There’s no doubt that these determinations involve trademark owners as speakers and the denial of benefits. They also require the PTO to evaluate the content of the mark. Should the constitutionality of these provisions also be revisited? And what about the denial of registration to merely descriptive marks, deceptive marks, and marks that falsely suggest connections? Under Judge Moore’s logic, these determinations are as unconstitutional as direct content-based regulations of speech. Moreover, it is worth noting that none of these kinds of marks would fall within traditionally unprotected categories of speech (e.g., libel, incitement, obscenity). So applying the First Amendment full bore as Judge Moore proposes would also disable the PTO from barring the registration of these marks as well.
The broader point is that all trademark registration determinations under § 2 are content-based because they all involve an evaluation of the meaning of the mark in the context of its use and analysis of whether it is disparaging, descriptive, deceptive, etc. Thus, if strict scrutiny is applied to the ban on disparaging or scandalous marks, it is also required in evaluating the constitutionality of all the other trademark restrictions contained in § 2. If a court were truly serious about apply this presumption, there would be little left of trademark law.
Finally, Judge Moore asserts that trademarks are private speech, not government speech. Judge Moore asserts that when “the government publishes registered trademarks in the Trademark Principal Register, it does so not to communicate a particular message or select a particular viewpoint.” But it is hard to get around the fact that the Register is a list of marks that the government has approved and that when a trademark owner uses the registered “R” symbol along with its mark, it is using that symbol precisely as a certification that the government has approved its mark. It is only when the PTO rejects the registration of a mark that its use is purely private. There are a host of reasons why the government should have the power to distance itself from odious speech and illiberal business practices. As we argued in a recent Slate article, all of these are compelling features of the federal government’s power to regulate interstate commerce.
Wednesday, April 15, 2015
The Fifth Circuit Jumps the Non-Article III Shark
A big thanks to Will Baude for alerting me to yesterday's fascinating decision by the Fifth Circuit in United States v. Hollingsworth, in which a divided panel upheld the constitutionality of a non-Article III magistrate judge trying without the defendant's consent a petty criminal offense committed on a "federal enclave." Hollingsworth is a great case for federal courts nerds, because it brings together two different threads of the Supreme Court's jurisprudence regarding non-Article III federal adjudication: (1) Congress's power to relegate certain matters to non-Article III magistrate judges; and (2) Congress's power to relegate certain matters to non-Article III "territorial" courts. Unfortunately, Hollingsworth combines these threads in a manner that utterly confuses them. Thus, although the panel reached what in my view is the right result, it did so for deeply flawed reasons, which I elaborate upon below the fold.
The facts of Hollingsworth are pretty straightforward; David Hollingsworth was tried and convicted before a federal magistrate judge in the Eastern District of Louisiana for simple assault at the Naval Air Station Joint Reverse Base New Orleans in Belle Chasse, a "federal enclave" that is within the "special maritime and territorial jurisdiction of the United States." No one disputes that Hollingsworth's crime is a "petty offense" under federal law, because the maximum sentence he could have received was six months' imprisonment. Hollingsworth was tried without a jury before a non-Article III federal judge, and, after an unsuccessful appeal to the district court, appealed his conviction to the Fifth Circuit on the grounds that such a trial (without his consent) before a non-Article III judge violated Article III and his Sixth Amendment right to a jury trial.
Writing for a 2-1 majority, Judge Clement held that Hollingsworth's claims were foreclosed by the Supreme Court's 1973 decision in Palmore v. United States. Palmore, readers may recall, upheld Congress's power to create a non-Article III court of general jurisdiction within the District of Columbia, almost entirely based upon Justice White's (flawed) analogy of the D.C. Superior Court to state courts. But while Palmore's reasoning has been heavily criticized, the basic proposition it establishes (that Congress can establish non-Article III courts in federal territories) is generally accepted today. Thus, Judge Clement concludes, "[U]nder Palmore, Hollingsworth has no constitutional right to trial before an Art. III court. . . . Pursuant to Clause 17, Congress could have referred all trials for crimes committed at Belle Chasse to an Article I judge, including felony trials.But Congress chose to refer only trials for petty offenses to federal magistrate judges."
In other words, Judge Clement reads into Congress's (in her view, greater) power to create non-Article III courts in federal territories the arguably lesser power to have magistrate judges try all offenses committed within those territories--and it's just Congress's good graces that stopped it from empowering magistrate judges to try anything other than petty offenses in this case.
The problem with this analysis is that it misreads the relevant statutes, and thereby conflates two very different justifications for non-Article III adjudication. The justification for territorial courts is tied entirely to Congress's unique (and plenary) regulatory power over federal territories; the justification for trying petty offenses before magistrate judges is tied entirely to a different consideration--that there's no right to trial by jury in such cases, regardless of where they are committed (indeed, this is the almost tautological conclusion of Part II of Judge Clement's opinion). Thus, Hollingsworth was tried under the general (and aterritiorial) statutory authority that empowers federal magistrate judges to try petty offenses without a jury even if the defendant doesn't consent.
Indeed, the only reason why the territorial location is significant in Hollingsworth is because simple assault is only a federal offense (albeit a petty one) when committed within the "special maritime and territorial jurisdiction of the United States." But once it's established that Hollingsworth has committed a federal offense, the fact that it was committed on a federal enclave is irrelevant to the statutory (and, in my view, constitutional) authority of the magistrate judge. In other words, Hollingsworth has nothing at all to do with Palmore. Given that I don't think it follows from Palmore that magistrate judges can try any offense committed on federal territory (for a bunch of reasons that I plan to elaborate upon in future writings), it was therefore completely unnecessary for the Fifth Circuit to decide this (novel) question.
Instead, the real question is whether non-Article III magistrate judges may generally try petty offenses without the defendant's consent. But as I've explained at some length in my (hot-off-the-presses) article on military courts, the Supreme Court has long equated the validity of non-Article III adjudication, at least in criminal cases, with the absence of a right to trial by jury. Note that this doesn't explain Palmore (where the defendant clearly did have a right to trial by jury), but that it does explain, among other lines of jurisprudence, nearly all of the Court's military justice case law, and the power of non-Article III federal courts in the insular territories (where the jury-trial provisions arguably don't apply) to try all criminal offenses.
In other words, instead of relying upon a settled line of non-Article III precedent (pursuant to which, contra Judge Higginson's dissent, non-Article III judges are allowed to try petty offenses), the Fifth Circuit unnecessarily (and, in my view, improperly) extended Palmore--a troubling enough precedent in its own right--to allow Congress to subject all offenses committed on federal territories to trial by magistrate judges.