Thursday, August 27, 2015

Decision time

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

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

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

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

Wednesday, August 26, 2015

Do not go gentle into that Nebraska night

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

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

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

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

Monday, August 24, 2015

Clerkship hiring and changing clerkships

Aaron Nielson (BYU) has published The Future of Federal Law Clerk Hiring (Marq. L. Rev.). The article traces the fall of the 2003 clerkship hiring plan and discusses some possible strategies and concerns in trying to get it under control. Definitely worth a read.

I want to focus on one feature of clerk hiring that Nielson discusses as a piece of the problem and of the search for a new hiring process: The increase in judges hiring only "experienced" clerks, clerks coming into chambers after several years doing something else. Sometimes it is another clerkship, which has long been the case and makes some sense for both judge and clerk. But more and more the "something else" is working at a law firm for a year or more, with the clerk not applying until she is well into practice. This trend seems to be increasing in recent years, particular on the Southern District of Florida, the district in which I live and where my students tend to look for federal clerkships.

But I believe this is an unfortunate trend.

First, as one of my colleagues pointed out, it puts the clerk in a bad spot in a number of ways. She must choose between a clerkship and continuing at a firm where she already has put in time and effort towards advancing. The firm may not be happy about losing a person into whom it has sunk time and money, even if only for a couple of years. Although the clerkship is a theoretical positive for the firm when the person returns (especially if it is a prestigious appellate clerkship), the partners are likely to be dubious that the person is going to come back. And the benefits of having a former clerk still might not be worth the costs of being down an associate in a very different legal economy. And even if she does return to the firm, there remains a risk that some will doubt her commitment.

This interaction has several effects. First, it may affect employment at the start--perhaps the firm will avoid even hiring someone knowing there is a chance she will be applying for--and taking--a clerkship within a year or two. There also is a financial disincentive for the person--it is easier to make (relatively low) law-clerk wages for a year right out of school than to make those wages after a year or two of higher law-firm wages. It also may have a disparate effect on women, as Nielson points out. Many women know that they may be taking time off at some point (perhaps soon) for one or more parental leaves, which has already been shown to negatively affect chances for partnership. That same person is going to be less willing to take additional time away from the firm to clerk, which would further damage partnership and advancement chances.

Second, and relatedly, there is a geographical constraint. It is a lot harder to look nationally for a clerskship once you have been ensconced in the professional world of one city for two or three years and potentially put down some roots. Looking everywhere in the country made sense when the clerkship was an extension of the already-itinerant experience of law school. This is more of a concern for students at top-tier law schools, but it remains an issue. And this again has disparate gender effects--women may be less able to pick up and move to a new city for a year, having already settled some place for a place for a couple of years.

Third, using experienced clerks changes the nature of the job. A clerkship is (was?) like a post-graduate fellowship--an extension of the legal education. It was an opportunity for a newly minted lawyer to spend a short period studying at the feet of an accomplished figure in the legal world--an extraordinary research assistantship--and gaining a particular perspective on the law. She then carried that extra education into a more-permanent job (which made her more attractive to those employers).* And the longstanding practice of stacking clerkships was more of the same--it was multiple fellowships. But that changes when the judge is hiring someone with genuine practice experience and knowledge. Such a clerk, who knows more than a recent graduate, may be of greater help to the judge in chambers. But she also becomes less of a mentee or student-trainee. So the question, I guess, is what do we (systemically or institutionally) want a clerkship to be.

* I recall a Prawfs post years ago--I cannot remember who wrote it--comparing working for Dr. Gregory House to clerking for a particularly nighmarish judge.

There always have been some judges who preferred (even insisted) on hiring someone out of a prior clerkship. But as more judges move to wanting that experience in their own clerks, that initial (no-experience-required) clerkship becomes harder to come by. That is why more clerks have to go to law firms first, triggering the concerns I mentioned above.

Another change in the nature of the job is the loss of the two-year district court clerkship. These were somewhat in decline when I clerked in the late '90s/early 00s and, from what I can tell, have continued to disappear. Back then, it was becoming harder to attract people because the opportunity cost ($150k starting salary in some markets, plus a $10k-$20k clerkship bonus) was too high. Now, it would be harder to attract people because someone who is already two or three years into their time at a firm is not interested in stepping away for two years. Nor is the firm likely to allow her to leave for two years. So a district judge wanting to appeal to the broadest applicant pool is not going to require a two-year commitment. But I would not have wanted to have left my district-court clerkship after one year; I needed and wanted two to get everything I could out of the experience.**

[**] Judge Leonard Garth of the Third Circuit (who also had been a district judge) once said that the ideal clerkship length is 18 months, so the question for the judge is whether to structure her clerkships for less than the ideal or more than the ideal. Judge Garth argued that a district court should do more than the ideal, because there is enough variety to justify the extra time without too much boredom setting in. I am not sure about the ideal point, but I do believe two years on the district court were essential.

I should close by saying that all of the concerns I am raising as a professor hoping to place students might have worked against me when I was the student/new lawyer looking to clerk. I started my first clerkship (on the EDPa) after one year at a law firm in Chicago. (Although I interviewed and was hired for the clerkship while still in school--this was when  judges interviewed in winter/spring 18 months before the clerkship would begin--so the judge was interviewing a current student and likely was not  thinking specifically that I would be coming to chambers with a small bit of practice experience). I interviewed and was hired for my second clerkship (on the Third Circuit) while I was eight months into my first one and the judge especially liked (although did not require) that I would come to chambers from a prior clerkship.

The law firm I worked at during that pre-clerking gap year had given me the offer in the fall of my 3L year following a summer associateship. Partners were not pleased when I told them I was going to be leaving to clerk--for another city, no less--after a year and were convinced I was not coming back. Of course, I knew by that point that I wanted to teach, so I was not as rooted in Chicago or the life of practice in Chicago as other attorneys might be; moving around for a clerkshipswas just a step in what I expected would be more moving around for academia. Nor was I concerned with whether the firm would want me back when I finished clerking.*** But if my goal had been private practice in Chicago, taking that two-year clerkship (to say nothing of pursuing a second clerkship on top of it) in a different city would have made a lot less sense professionally and personally.

[***] The firm dissolved eleven months after I left, so there would have been nothing to go back to in any event.

Posted by Howard Wasserman on August 24, 2015 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (11)

Saturday, August 22, 2015

The hole in Mireles v. Waco

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

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

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

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

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

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

Thursday, August 20, 2015

Infield Fly Double Play

On Wednesday night, the Royals turned a double play on an Infield Fly (video in link). With bases loaded and one out, a fly ball was hit near the first-base line, even with the mound; the rule was put in effect, the ball was not caught, and the runner on third made the instinctual move of running when the ball hit the ground and was tagged out at home. This is about the third or fourth time I have seen a double play on an I/F/R call in the six seasons I have been tracking.

Although the non-catch here was unintentional (the pitcher and first baseman had a miscommunication), a play such as this shows why the I/F/R does not entirely eliminate the perverse incentive for infielders to intentionally not catch the ball. There is always a chance an infielder could con the runner into taking off when the ball hits the ground and the runner's instinct takes over. And because not catching the ball is costless to the defense (since the batter is out anyway), it could be worth a shot. But this possibility does not undermine the I/F/R. The rule exists because base runners would be helpless if forced to run on a non-catch; it does not exist to save the runners from the consequences of running without thinking. And, of course, had the catcher forgotten to tag the runner (i.e., had the catcher been the one to have the brain cramp), the runner would have scored. In any event, I have only seen two instances of intentional non-catches in six seasons, so clearly the likelihood of success is not high enough to convince infielders to try this on a regular basis.

Posted by Howard Wasserman on August 20, 2015 at 10:00 PM in Howard Wasserman, Sports | Permalink | Comments (6)

Tuesday, August 18, 2015

Settlement in Hood County, TX

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

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

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

Monday, August 17, 2015

NLRB declines jurisdiction in Northwestern football case

The  National Labor Relations Board finally ruled on the efforts of Northwestern football players to unionize, declining to exercise jurisdiction without deciding whether college athletes are statutory employees. The Board determined that "it would not promote stability in labor relations" for it to get involved. It emphasized the unique circumstances of the case and the problem of ruling on union efforts by players in one sport at one school. Professional athlete-unions were sport- or league-wide, not team-wide. FBS schools, including all other Big Ten schools, are public and thus not subject to Board jurisdiction, meaning Northwestern (and 16 other FBS schools) might be able to unionize but not any of its competitors. This also would undermine the NCAA and the Big Ten Conference, which member schools formed to create the uniformity and level playing field that a Northwestern-only union would undermine.

At Workplace Prof, Jeff Hirsch briefly discusses the opinion, arguing that the NLRB's conclusion about instability is understandable, but ignores the way that unionization might have pressured the NCAA to make needed changes. I would make that point even more specifically--unionization is the only way to ensure student-athletes have real power in creating new policies for the NCAA, as opposed to being given a voice that can be easily overridden or ignored by other interests. For example, under the proposed revised governance structure for Division I athletics, student-athletes would hold one vote on a 21-person Board of Directors and two votes on a 38-person Council (the legislative body), a body on which 60 % of the Council must be athletics directors. The NLRB identified some changes that have been made since the filing of the petition, perhaps suggesting its  view that things are improving for student-athletes and even a small number of unions is unnecessary to further NLRA policies.

Matt and I have been waiting for this decision for a year-and-a-half and had planned on writing a short essay on the decision and the underlying normative issues. Given this resolution, I doubt there is much to say.

Posted by Howard Wasserman on August 17, 2015 at 03:13 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Show Me a Hero

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

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

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

Friday, August 14, 2015

Why marriage licenses?

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

What is so special about issuing marriage licenses?

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

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

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

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

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

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

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

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

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

Thursday, August 13, 2015

A first take on recalcitrant county clerks

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

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

Thoughts after the jump.

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

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

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

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

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

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

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

Wednesday, August 12, 2015

Benforado on cameras and perspective

Adam Benforado (Drexel) has this Slate essay (excerpted from his new book). He discusses the role of perspective in evaluating video evidence and the need to "underst[and] how footage can influence perception," so "we can change how we use cameras to address that distortion." I have been making similar arguments, here and elsewhere. And I like some of Adam's suggestions about finding ways to obtain and use video with different or wider perspectives.

Posted by Howard Wasserman on August 12, 2015 at 03:15 PM in Books, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

The Process of Marriage Equality

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

The abstract is after the jump.

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

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

Tuesday, August 11, 2015

Following Obergefell in the lower courts

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

* Which is not located in the Eighth Circuit.

Some comments after the jump.

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

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

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

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

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

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

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

JOTWELL: Malveaux on Porter on Rules interpretation

The new Courts Law essay comes from Suzette Malveaux (Catholic), reviewing Elizabeth Porter's Pragmatism  Rules (Cornell L. Rev., forthcoming), which unpacks competing methodologies and approaches to interpreting the Federal Rules.

Posted by Howard Wasserman on August 11, 2015 at 02:31 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (1)

Middle ground on departmentalism

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, August 10, 2015

History of satire

I have been radio silent for the past couple weeks, trying to put the final touches on a new article for August submission (more on that in a few days, hopefully). So, in honor of Jon Stewart's final episode last week, I will do a "hey, check-this-out" post, recommending this week's Backstory podcast, National Lampoon: Satire in American History, and the accompanying essay on the role that satirical magazines played in the 1884 presidential election (Cleveland Defeats Blaine).

I stopped regularly watching Stewart (I would watch pieces online, but it stopped being appointment viewing), largely because at some point I became unable to watch satire of a media and political landscape that is so ridiculous as to be self-satirizing. Making fun of it seemed redundant. Still, I enjoy discussions of satire as a form, especially as it implicates the First Amendment (the podcast features Rod Smolla talking about Hustler v. Falwell) and current politics (there is a short segment on why conservative satire does not catch on to the same degree).

Posted by Howard Wasserman on August 10, 2015 at 09:31 AM in Article Spotlight, First Amendment, Howard Wasserman | Permalink | Comments (0)

Tuesday, August 04, 2015

Call for GuestPrawfs, 2015-16

As the new school year looms, so does our annual need for a new slate of GuestPrawfs to keep this site moving. We are looking to fill slots beginning in November and for the rest of the academic year. If you are a past guest, please (please!) come back. If you have never been at Prawfs (or blogged at all) before and would like to give it a try, please join us. We especially encourage pre-tenure faculty--Dan & Co.'s original target--to join us.

If interested, please email me at howard.wasserman@fiu.edu, along with two or three months that work for you. Also, if you have friends/colleagues who might be interested in blogging but might not see this post, please pass it along.

Posted by Howard Wasserman on August 4, 2015 at 09:31 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Saturday, August 01, 2015

Rotations

August is upon us, which means that classes and submission season both loom and that it is time to say thanks and goodbye to our July visitors--Jeff, Catherine, Robin, Leigh, and Heather.

And it means welcoming our August visitors. Returning to Prawfs are Jessie Hill (Case Western), Ari Waldman (New York Law), and Shima Baradaran (Utah). Joining us for the first time are Fabio Arcila (Touro), Andrea Boyack (Washburn), and Bertrall Ross (Berkeley). Welcome and enjoy the month.

Posted by Howard Wasserman on August 1, 2015 at 05:07 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

Thursday, July 30, 2015

Law-of-Baseball Bleg

I already have the title for a future paper--"Tie Goes to the Runner" and Other Myths of Baseball Rules. The paper will explore baseball rules that everyone believes/assumes are one way and that often are captured in a common, pithy cliche; in fact, they are entirely different, if not the precise opposite, from what everyone thinks. For example, the one from the paper title. As kids, we always yelled "tie goes to the runner" to justify having a runner be safe when the play was too close to call; in fact, the runner is out unless he affirmatively beats the throw--in other words, tie goes to the fielder (Bruce Weber's As They See 'Em has a great discussion of this).

Now I just need some content. So far, I have identified five rules that fit the bill, thanks in part to suggestions from participants in a SEALS discussion group earlier this week: 1) Tie goes to the runner; 2) Infield Fly Rule only applies to balls on the infield; 3) "One base on an overthrow"; 4) "Hand is part of the bat" (so getting hit on hand when hand on bat is a foul ball); 5) The runner cannot run out of the baseline (this rule, and the common misunderstanding of it, came up during the 2013 World Series).

Can anyone think of others? Suggestions welcome in the comments.

Posted by Howard Wasserman on July 30, 2015 at 09:31 AM in Article Spotlight, Howard Wasserman, Sports | Permalink | Comments (17)

Wednesday, July 29, 2015

SEALS thoughts

For a variety of geographic and other reasons, my SEALS participation this year involved just two days of driving the 50 miles to the Boca Resort. And I will have to miss the MarkelFest! Happy Hour. I did have two random thoughts after the jump.

1) I was struck by what I thought was the rise of the discussion group and an initial sense that discussion groups now outnumber panels. It turns out there still are more panels, although the numbers are almost even (excluding the New Scholars panels), but that still reflects a pretty significant increase in the number of discussion groups. And I see the benefits of having more discussion groups--they allow us to hear from more voices about more things and create more of a conversation than a panel of often-unrelated talks. Even the one panel I did (the SCOTUS Individual Rights Review) was conducted as more of a discussion format and was, I think, a lot of fun for just that reason.

2) Kudos to SEALS on the two-sided name tags, so that the name is showing no matter which side the plastic card is facing. Nothing worse than trying to place someone but their card is flipped over.

Posted by Howard Wasserman on July 29, 2015 at 05:51 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

MarkelFest! at SEALS Thursday night

The annual MarkelFest! at SEALS will take place at 9:30 p.m. this Thursday, July 30,  at the Palm Court Bar at the Boca Resort. Steve (unfortunately, the only PermaPrawf who will still be there on Thursday) will be your host.

Apologies for the late notice. But spread the word around SEALS and thanks to everyone for helping maintain this SEALS tradition.

Posted by Howard Wasserman on July 29, 2015 at 09:00 AM in Blogging, Howard Wasserman | Permalink | Comments (1)

Saturday, July 18, 2015

Faculty Lounge Symposium on Go Set a Watchman

Steve Lubet and the Faculty Lounge are hosting an on-line symposium on Go Set a Watchman and they are looking for guest posts offering "takes on Watchman, as well as reassessments of Mockingbird." If you interested, check out the announcement.

Posted by Howard Wasserman on July 18, 2015 at 05:28 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

Tuesday, July 14, 2015

Catalyzing Fans

Just in time for Dan's Yahrzeit (last week on the Hebrew calendar, this weekend on the English), Catalyzing Fans has finally been published in the Harvard Journal of Sports & Entertainment Law (co-authored with Michael McCann and me). The article appears alongside comments by Andrew Schwartz, David FagundesMitchell Berman, and Adam Chodorow.

Given how Dan felt about sports, it is ironic that his final academic word has its greatest application in that arena (Dan was always trying to pull the project into broader applications, where Mike and I saw sports as likely the exclusive province for this idea). The comments fit well together and with the original piece and I think Dan would have been happy with how our article and the whole thing came out. It is a fitting tribute.

Posted by Howard Wasserman on July 14, 2015 at 06:42 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (4)

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

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

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

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

Monday, July 13, 2015

Irony is dead

IMG_2700Billboard at the Atlanta Airport. I know nothing about EarthJustice; I just question their advertising strategy.

Posted by Howard Wasserman on July 13, 2015 at 03:32 PM in Howard Wasserman | Permalink | Comments (14)

Friday, July 10, 2015

Mootness spreads

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

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

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

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

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

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

Wednesday, July 08, 2015

AALS Section on Federal Courts: Annual Award for Best Untenured Article on the Law of Federal Jurisdiction

The following comes from Tara Leigh Grove, on behalf of the AALS Section on Federal Courts.

The AALS Section on Federal Courts is pleased to announce the fourth annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school ­and to solicit nominations (including self-nominations) for the prize to be awarded at the 2016 AALS Annual Meeting in New York, NY. 


The purpose of the award program is to recognize outstanding scholarship in the field of federal courts by untenured faculty members. To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2015 (date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2015), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award.
 
Nominations (or questions about the award) should be directed to Tara Leigh Grove at William and Mary Law School (tlgrove@wm.edu). Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2015. Nominations will be reviewed by a prize committee comprised of Professors Janet Cooper Alexander (Stanford), Tara Leigh Grove (William & Mary), Caleb Nelson (Virginia), Judith Resnik (Yale), and Amanda Tyler (Berkeley), with the result announced at the Federal Courts section program at the 2016 AALS Annual Meeting.

Posted by Howard Wasserman on July 8, 2015 at 04:15 PM in Article Spotlight, Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Sanctions?

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

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

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

JOTWELL: Levy on Huq on constitutional justice

The new Courts Law essay comes from Marin Levy (Duke), reviewing Aziz Huq's Judicial Independence and the Rationing of Constitutional Remedies (Duke L.J.) (forthcoming), which links the use of fault rules limiting constitutional remedies to the judiciary's efforts to protect its institutional interests. Have a look.

Posted by Howard Wasserman on July 8, 2015 at 09:43 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Monday, July 06, 2015

What can plaintiffs sue for after Obergefell?

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

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

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

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

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

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

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

More empathy

Paul closed comments on his excellent post on the distinction between empathy and sympathy (and, as a third element, compassion). I will just second Paul's remarks by recommending Thomas Colby's 2012 article in Minnesota Law Review, which I reviewed for JOTWELL. As I wrote here, this exchange between Sen. Kyl and Elena Kagan during Kagan's 2010 nomination hearings both exposed the confusion many have over the terms and had the potential to explain the role empathy actually plays in judging, although I don't think anyone recognized it at the time.

Posted by Howard Wasserman on July 6, 2015 at 10:39 AM in Howard Wasserman, Law and Politics | Permalink | Comments (5)

Wednesday, July 01, 2015

Rotations

It is July already, which means we all have to start thinking about how far behind we are on our summer projects.

But it also means we get to welcome a new set of guests. For July, that means returning players Jeffrey Lipshaw (Suffolk) and Robin Effron (Brooklyn) and first-timers Leigh Osofsky (Miami), Catherine Smith (Denver, whose amicus on the constitutional rights of children was cited by the majority in Obergefell), and Heather Whitney (Bigelow Fellow, Chicago).

And we say goodbye and thank you to Corinna, Hadar, Seth, Aaron, and Megan, who helped maked June one of our busiest and most-visited months. They may be sticking around for a few days for a few final words.

And another reminder that we are always looking for guests, so please email Paul or me if you are interested in guesting in the coming school year.

Posted by Howard Wasserman on July 1, 2015 at 09:31 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Tuesday, June 30, 2015

An unusual role

During Monday's SCOTUSBlog opinion-announcement LiveBlog, a reader asked about how often Justice Thomas assigns opinions. And I realized that the answer is "not very often." Given seniority and the ideological/jurisprudential position of the various justices, Thomas only assigns the opinion if he is in the majority and the Chief, Scalia, and Kennedy (the three justices senior to him) are not. And that just does not happen very often. Thomas is in agreement (at least as to judgment) with the Chief 69% of the time, with Scalia 77 % of the time, and Kennedy 65 % of the time. And then he assigns only if he also has four of the justices who are junior to him (with whom, other than Alito, he agrees far less often) going along with him.

And I then realized that one of his rare assignments was Walker v. SCV. And he gave the opinion to Breyer, which is an interesting move. Ron Collins argued that Thomas's vote in this case may have been influenced by his unique perception of a racist symbol such as the Confederate Flag and how the First Amendment should treat such symbols. (Dahlia Lithwick and Garrett Epps made a similar point about Walker in a podcast and Epps wrote about it in the Atlantic). If so, one might have expected Thomas to keep the case for himself, precisely so he could talk about that unique symbol and how it might have affected the First Amendment analysis. Or we might have expected him to keep the case simply because he so rarely gets to assign.

Anyway, another unique feature of Walker, a case which could have some long-ranging effects.

Posted by Howard Wasserman on June 30, 2015 at 10:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (1)

Some movement in Alabama

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

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

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

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

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

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

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

Monday, June 29, 2015

The Un-Kennedy

Two thoughts on Paul's post about the prose in Justice Kennedy's Obergefell opinion:

1) If you had asked me as of 9:57 a.m. Friday, I would have predicted the vote would be 6-3, with the Chief joining the majority. And at least part of the reason I thought he would join the majority was to keep the opinion away from Kennedy--either by writing it himself or giving it to Justice Ginsburg--so as to get a narrower, less flowery, clearer, likely more Equal Protection focus.

2) Judge Posner's opinion, while a blast to read (at least if you agree with his conclusions), was criticized in some circles as similarly not placing itself within the ordinary (he uses "conventional") doctrinal framework. He did not commit to a standard of review, not resolving the fundamental rights questions, using cost-benefit balancing analysis that was neither heightened nor strict scrutiny, while insisting that the difference was semantic more than substantive. Posner's opinion is noteworthy for the way it tears apart (and makes fun of) the state's arguments in support of SSM bans. But Posner departs from the typical judicial style as much as Kennedy does.

Posted by Howard Wasserman on June 29, 2015 at 06:21 PM in Howard Wasserman, Law and Politics | Permalink | Comments (7)

Texas responds to Obergefell

Texas Attorney General Ken Paxton has issued a non-binding opinion letter about implementation of Obergefell. Paxton concludes that 1) county clerks and their employees retain religious freedoms that may allow them to opt-out of issuing licenses to same-sex couples, but it will be fact-dependent and 2) State judges and county justices of the peace may similarly seek an opt-out, depending on the facts. The county clerk in Bell County followed the letter to announce that her office would issue licenses to same-sex couples, with individual employees able to seek an opt-out. Josh Blackman has detailed thoughts; Josh argues that this becomes a matter of staffing, rising to a constitutional problem only if no one in the office is willing to issue licenses to same-sex couples or if there are excessive delays or administrative difficulties.

I believe Josh basically has it right, although I would offer a few caveats.

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

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

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

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

Sunday, June 28, 2015

Is the question moot?

Immediately following Obergefell, Nebraska moved in the Eighth Circuit to lift the stay of a district court injunction invalidating the state's ban. In its motion, Nebraska argued that the case is moot because the Attorney General has certified that he will comply with Obergefell and no longer enforce the Nebraska ban. The motion cites to cases (from the Eighth and Seventh Circuits) holding moot challenges to laws that had been declared unconstitutional in a separate case by a controlling court. It also argues that this case is not capable-of-repetition-yet-evading-review, because the state's promise to comply with Obergefell means no one in Nebraska will be denied a license.

This argument seems wrong to me, at least as the state presents it. The government's promise not to enforce a law is generally not sufficient to moot a case (without implicating C/R/Y/E/R). A state can moot a case by repealing a state law, but Nebraska has not done so (and likely will not). The cases Nebraska cites are not on point, because Nebraska's marriage ban has not been declared unconstitutional. The bans in other states have been declared unconstitutional in a decision that, as binding precedent, likely will result in Nebraska's ban being declared unconstitutional. But that is different than a declaration as to Nebraska's law.

I did find one case (not cited by Nebraska), Christian Coalition of Alabama v. Cole (11th Cir. 2004), holding that a constitutional challenge to state judicial canons was moot as a result of precedent from a different state. There, the state judicial ethics commission represented that it would not enforce a canon in light of SCOTUS precedent declaring invalid a similar judicial canon from Minnesota, mooting a challenge because there was no threat of any judicial candidate being sanctioned. This case suggests that Nebraska is correct. Moreover, in asking whether voluntary cessation has mooted the case, courts link the possibility of a renewed enforcement back to standing. Given Obergefell and Nebraska's commitment to abiding by it, a new couple initiating a challenge to its ban likely would be held to lack standing (unless actually denied a license). In the absence of any indication that the plaintiffs in the pending action will be denied a license because of the AG's representation, perhaps the case has indeed become moot.

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

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

Thoughts?

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

Saturday, June 27, 2015

More on SSM in Alabama

According to WSJ, Alabama Attorney General Luther Strange (who remains under a district court injunction not to enforce the state ban), announced "While I do not agree with the opinion of the majority of the justices in their decision, I acknowledge that the U.S. Supreme Court’s ruling is now the law of the land." Although the Association of County Commissions yesterday recommended that probate judges wait for further word from either SCoA or Judge Granade, probate judges in many parts of the state declined to listen, including in Birmingham and Mobile. Four counties have refused to issue licenses to same-sex couples and eight are not issuing licenses at all.

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

Always read beyond the headline

Admit it. How many of you see this headline--Alabama judge: Marriage ruling worse than segregation decision--and thought Roy Moore was talking about Brown?

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

More of what happens next (Updated)

A follow up to this post and more details:

1) According to this story, Roy Moore is being . . . Roy Moore. He said Obergefell was worse than Plessy; continued to insist that there is no such thing as same-sex marriage in the Constitution; and he "can't say" whether same-sex marriages will happen in the state. This story shows Moore going even further around the bend, now accompanied by his wife, a conservative activist: Moore insists the Court not only lacked authority to issue the ruling, but that Ginsburg and Kagan should have recused, calling into question the validity of the decision. There is a good chance that someone in Alabama is going to be held in contempt.

2) But the same story indicates that Alabama Governor Robert Bentley said he disagrees with the decision, but he would "uphold the law of the nation and this is now the law."

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

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

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

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

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

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

Friday, June 26, 2015

What happens next?

I still have not had a chance to read Obergefell, but I wanted to throw together a quick post on what is happening in the decision's immediate aftermath. This Slate piece collects responses from governors and AG's in several states; in ten states, the executives announced that they would immediately implement the decision and begin issuing licenses, which happened almost this morning and afternoon in a few places (includes photos).

Other states appear ready to at least demand that the process run its course. As a commenter on my earlier post noted, Mississippi's A/G, Jim Hood, told circuit clerks not to issue licenses; he said "the Supreme Court's decision is not immediately effective in Mississippi until the Fifth Circuit lifts the stay" on a district court injunction, which Hood suggested might take longer than many expect. This is inartfully stated, but actually correct. The Court's actual mandate is not directly binding on anyone in Mississippi with respect to anyone in Mississippi, who were not parties to the case. Hood overstates it, however, in that any new couple could initiate a new lawsuit against Hood and a circuit clerk and obtain an injunction in light of Obergefell as binding precedent. In any event, it should not take long--the attorney for the plaintiffs has already indicated his plan to file a motion to lift the Fifth Circuit stay, which should be immediately granted.

And what about Alabama, my favorite bastion of procedural nuance? No official word yet. The probate judge in Pike County announced that he would no longer issue marriage licenses to anyone, insisting that the state law empowering probate judges to issue licenses uses the word "may," giving the judge the discretion whether to issue licenses (so long as he does not discriminate). The Alabama Association of County Commissions recommended that probate judges accept applications but delay issuing licenses until resolution of both the Supreme Court mandamus and the stayed federal injunction. I expect the federal plaintiffs to quickly lift ask Judge Granade to lift her stay of the injunction, against a defendant class of all probate judges in favor of a plaintiff class of all same-sex couples; doing so will immediately bind all probate judges to issue licenses on equal terms to all couples. And I imagine someone will ask the Supreme Court of Alabama to vacate its mandamus, since its reasoning has been superseded and cannot stand after Obergefell. And if the court declines, look for someone to ask SCOTUS to stay the injunction, if not to summarily reverse it.

Stay tuned.

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

Marriage equality

For those of you who are inexplicably here rather than at SCOTUBlog, here is the 103-page opinion in Obergefell. Kennedy for five; dissents from each of the Chief, Scalia, Thomas, and Alito.

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

Thursday, June 25, 2015

Cert justified?

I think the Court got it right in King v. Burwell, but I don't have anything to say on the merits. But I do want to briefly comment on how the majority explained its cert grant and some underlying procedure in the case.

On p. 7, at the end of Part I, Chief Justice Roberts, having summarized the decision of the lower court (the Fourth Circuit), says "[t]he same day that the Fourth Circuit issued its decision, the Court of Appeals for the District of Columbia [reached the opposite conclusion in a different case." The implication is that the Court granted cert for its typical reason--to resolve this circuit split. Sup. Ct. R. 10(a).

But that description is incomplete and arguably inaccurate. Two months after both circuit panels issued their opinions and two months before the Court granted cert in King, the en banc D.C. Circuit vacated that panel decision and granted rehearing en banc. As a result, at the time the Court conferenced and granted cert in King (in November), there was no circuit split, only one court of appeals decision interpreting the statute to allow for subsidies on all exchanges. In fact, the government used this to argue against cert in King, an argument the Court obviously rejected in taking the case.* The majority opinion does not even drop a footnote to give the bigger picture.

[*] Once SCOTUS granted cert in King, the D.C. Circuit held the Halbig appeal in abeyance, pending King.

None of this matters, of course. Cert in King was certainly justified as an important question of federal law that should be settled by SCOTUS. Sup. Ct. R. 10(c). But then why even mention the circuit split that really wasn't? Or why not offer the full procedural context and the fact that the split went away. And might the answer have something to do with suspicions about the decision of the D.C. Circuit (a court with a majority Democratic appointees) to vacate the panel?

Posted by Howard Wasserman on June 25, 2015 at 02:31 PM in Howard Wasserman | Permalink | Comments (4)

Singletons in film

A quick non-law post, apres les deluge of posts on ACA subsidies and disparate impact.

Much deserved praise is being heaped on the new Pixar film Inside Out, which is setting all sorts of box-office records and gaining all sorts of critical acclaim. It has earned praise for (finally) featuring a lead female character (arguably 3 of them) who is not a princess, who likes sports, and who seems like a typical kid. It is a comprehensible visualization of how emotions and the brain genuinely work--the producers consulted with neuroscientists, psychologists, and other smart people, who have talked about what the film captures. And it makes parents cry about their children (especially daughters) growing up.

I want to mention one side point, which is not central to the story or its consequences, but still worth noting: Riley, the 11-year-old lead character, in whose head the action takes place, has no siblings (I hate the term "only child" and find "singleton" better, if essentializing). And this is presented in the film without remark or commentary. This is a story about a "typical" preadolescent girl who is happy, good natured, well-adjusted, close with her parents, has friends--all traits not associated with the stereotype of the spoiled or lonely singleton (all of which have been debunked, but which still carry cultural resonance). What she experiences in the film--as she becomes moody and isolated--is depicted as the ordinary work of ordinary emotions and growing up. And I was happy to see that the filmmakers did not feel the need to throw in an annoying younger brother, either for comic relief or to create a "complete" family.

Parents and one child can a family, with a happy child, make. I just like to see pop culture catch up with that idea. Or better yet--not even have to mention it.

Posted by Howard Wasserman on June 25, 2015 at 10:32 AM in Culture, Howard Wasserman | Permalink | Comments (2)

Wednesday, June 24, 2015

Fifty Years of Criminal Procedure – the Subject and the Casebook

The following guest post comes from regular reader and commenter Orin Kerr (GW and The Volokh Conspiracy) and is sponsored by West Academic.

Fifty years ago, in 1965, a young professor named Yale Kamisar paired with a more established professor named Livingston Hall to publish a new casebook that introduced a new academic field. That casebook, Modern Criminal Procedure, was the first casebook about a then-new field of criminal procedure. When the first edition was published, the Warren Court was in the midst of its so-called “criminal procedure revolution.” Mapp v. Ohio was four years old, and Gideon v. Wainright was two. Massiah v. United States and Escobedo v. Illinois were hot off the presses (literally). Miranda v. Arizona would follow the next year, with Katz v. United States the year after that and Terry v. Ohio the year after that.

The many editions of the Kamisar casebook have traced and influenced the Supreme Court’s development of the field ever since.

This summer marks the publication of the 14th Edition of the Kamisar casebook. Kamisar remains an active author, as are Wayne LaFave and Jerold Israel, both of whom joined the casebook in 1969 for the 3rd edition. More recently, three new co-authors, Nancy King, Eve Brensike Primus and I have joined the book. In the new 14th Edition, the authors made extra efforts to make the book more user friendly while retaining its comprehensive coverage. The new book has slimmed down a bit, and the authors have added an online teacher’s manual.

Both Yale Kamisar and Jerold Israel will be discussing their work on the casebook, and the evolution of the field of criminal procedure more broadly, at the upcoming Southeastern Association of Law Schools conference, July 27 – August 2 in Boca Raton, FL. Here’s the panel description for those interested:

Teaching Criminal Procedure: Fifty Years of Experience Courses in Criminal Procedure have now been taught at U.S. law schools for half-a-century. Over that time, the nature of these courses has changed and evolved. The speakers on this panel, some of whom have taught Criminal Procedure from the beginning, will discuss how the course has grown and evolved over the decades.

Moderator: Professor Stephen Singer, Loyola University New Orleans College of Law

Speakers: Professor John Burkoff, University of Pittsburgh School of Law; Professor Steven Friedland, Elon University School of Law; Professor Jancy Hoeffel, Tulane University Law School; Professor Jerold Israel, University of Michigan Law School, University of Florida, Levin College of Law; Professor Yale Kamisar, University of San Diego School of Law, University of Michigan Law School; Professor Ellen Podgor, Stetson University College of Law

Posted by Howard Wasserman on June 24, 2015 at 11:37 AM in Howard Wasserman, Sponsored Announcements | Permalink | Comments (0)

Monday, June 22, 2015

Walker meets Wooley

In last week's Walker v. Sons of Confederate Veterans, SCOTUS held that specialty license plates constitute government speech, meaning the state can exclude or include whatever groups or messages it wishes, regardless of how viewpoint discriminatory it is being. This basically resolves controversies currently pending in several states over pro-choice/anti-choice license plates--the state can do what it wants. It can allow for both messages, exclude both messages (albeit for different reasons than the Second Circuit relied on in upholding New York's blanket exclusion of messages relating to controversial political subjects, such as abortion), or exclude one and include the other. The Fourth Circuit is currently considering a challenge to North Carolina's program, which offers a "Choose Life" plate but rejected a plate in support of reproductive freedom. Walker ends that dispute and requires that the state's program be upheld The Fourth Circuit last year held invalidated North Carolina's program allowing for a "Choose Life" plate but not a corresponding plate in favor of reproductive freedom; a cert petition is pending.

So is there any way for a person in North Carolina to use a license plate to display a message in support of reproductive rights when the state refuses to allow that specialty plate? How about this: Pay for the "Choose Life" plate, then make a conspicuous show of placing tape or something else to cover the anti-choice logo. The First Amendment allows a driver to cover the state-speech motto on the plate, as the state cannot compel a driver to serve as a "'mobile billboard'" for the State's ideological message." Under Walker, "Choose Life" is the state's ideological message for Wooley purposes, which a driver cannot be compelled to display. The obvious way not to display the state's message is to not purchase the "Choose Life" plate, which the state does not compel (unlike New Hampshire's general "Live Free or Die" plate). On the other hand, if the state did compel that as its sole license plate, a person unquestionably could cover the logo.

It follows that First Amendment should also protect a person who combines those options: Pay the extra money for the specialty plate specifically so she can cover the state's message.* Covering a state-sponsored message with which a person disagrees involves a protected message that is different from declining to purchase and display that message in the first instance. Additional meaning flows from the person not just counter-speaking to the state message, but using the state message as the vehicle for the counter-speech. For a stark comparison, an individual is not obligated to purchase or display an American flag, although she may choose to purchase it so she can set it on fire. Each presents a different message that a speaker is entitled to put forward. Given that difference, the state should not be able to successfully argue that the driver lost her right to cover the slogan, a la Wooley, because she willingly paid extra for the plate with that slogan.

[*] There is a separate question of whether anyone would want to do this. My understanding is that in some states, a portion of the money for some specialty plates goes to the cause reflected on the plate. So a supporter of reproductive freedom will not buy the "Choose Life" plate, even to make the statement of covering the logo, if the money is going to anti-choice causes.

Thoughts?

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

Thursday, June 18, 2015

First Amendment Day at SCOTUS

SCOTUS on Thursday decided the final free speech cases of the Term.

In Walker, the Court held that the messages on specialty license plates constitute government speech rather than private speech is a government-created public forum. The Court split 5-4; Breyer wrote for Thomas, Ginsburg, Sotomayor, and Kagan, while Alito dissented joined by the Chief, Scalia, and Kennedy.

When this issue first began bubbling up in the '90s, my quick conclusion (even before Summum, the case at the heart of the dispute between the majority and the dissent) was that specialty plates were government speech. Governments used these plates for their own messages ("Live Free or Die" "Famous Potatoes" "The Lone Star State") and the specialty-plate programs simply expanded the range of message government would adopt and present as its own.* And a viewer can understand that a driver with one of those plates agrees with that message.

[*] By contrast, I believed--and still do--that alpha-numeric codes used in vanity plates constitute individual speech in a limited public forum that should be subjected to closer First Amendment scrutiny.

But Alito's dissenting opinion was quite convincing, particularly in that it was an excellent and very accessible read. I was particularly moved by the two hypotheticals he presented--1) an electronic highway billboard containing some government messages, but on which government opens space for private speakers to rent space for their own messages and 2) a public-university campus bulletin board or listserv which includes some government messages and is open to private messages. Alito's point is that, under the majority's analysis, these speech locations could as easily be called government speech and government "adoption" of certain paid-for private messages.

The second decision is Reed v. Town of Gilbert, holding that a municipal sign ordinance that imposed less-favorable conditions on "directional" signs compared with "ideological" or "political" signs was content-based and did not survive strict scrutiny. Thomas wrote for the Chief, Scalia, Kennedy, Alito, and Sotomayor, with Alito, joined by Kennedy and Sotomayor also adding a concurrence; Kagan, writing for Ginsburg and Breyer, concurred only in the judgment, with Breyer adding his own concurrence-in-the-judgment. Based on some listserv discussions, this could line up as a significant case on the ground.

The cornerstone of Thomas' opinion is a broad construction of what constitutes a content-based (in the sense of subject-matter-based) restrictions subject to strict scrutiny. He identified four categories of content-based regulations: 1) Those that are content-based on their face by defining the regulated speech by its subject-matter; 2) those that define the regulated speech by its function or purpose; 3) those that are facially content-neutral, but that cannot be justified without reference to the content of the regulated speech (that is, the underlying harms only arise because of the content of the speech); and 4) those that are facially content-neutral, but that were adopted by the government because of disagreement with the message conveyed by the regulated speech. For those who view the content-neutrality requirement as an important means of protecting First Amendment interests, there is a lot to like in this. If Thomas is serious about this taxonomy, it could be used to look under the hood of a significant number of seemingly content-neutral regulations that really were enacted to limit certain speech and certain speakers, especially speech and speakers associated with a particular location.** The last two categories also will prevent government from pleading "pure" legislative motive so as to avoid strict scrutiny. [Update: Some email discussions raise the possibility that Thomas's taxonomy eliminates the "secondary effects doctrine" for regulating nude dancing and other sexually explicit speech, one of the clearest examples of a facially content-based regulation treated as content-neutral]

[**] While I hate playing amateur psychologist, one obvious example would be the buffer-zone and other regulations on reproductive-health clinic protests, such as in McCullen and Hill, which were treated as content-neutral, but which would seem to fall into the fourth category.

Kagan, Ginsburg, and Breyer were troubled by this seeming expansion of non-neutrality, perhaps because of concerns for what this might mean for commercial regulations or other innocuous regulations that do not pose meaningful threats to public debate (for example, allowing for permanent "Hidden Driveway" signs but not other permanent signs). Breyer even offered a new, more even balancing test placing less of a thumb on the scale of free speech, asking whether the harm to First Amendment interests is disproportionate in light of the state's regulatory interests (he offered a similarly soft balancing test in his concurrence in the judgment in Alvarez). Kagan insisted that it was unnecessary to determine whether the ordinance was content-based, since it could not even survive intermediate scrutiny as a content-neutral regulation; the ordinance was both overbroad and under-inclusive and the government offered no reasons for the distinctions or limitations it imposed.

Posted by Howard Wasserman on June 18, 2015 at 01:25 PM in First Amendment, Howard Wasserman | Permalink | Comments (2)

Tuesday, June 16, 2015

Veep does the Constitution

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

More (with spoilers) after the jump.

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

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

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

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

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

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

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

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

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

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

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

Friday, June 12, 2015

Three-judge district courts in constitutional reform litigation

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

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

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

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

Thursday, June 11, 2015

The Chief, the First Amendment, and the assignment power

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

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

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

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

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