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Sunday, June 30, 2013

Adoptive Couple v. Baby Girl (3 of 4): On the Portrayal of Dusten Brown as a Deadbeat Dad

This case has been shadowed by concerns about Indian authenticity, equal protection, fatherhood and motherhood, dysfunctional child welfare systems, and “deserving” adoptive parents. The purpose of this series (part 1 is here and part 2 is here), co-authored with Kim Pearson, a family law professor who writes about transracial adoption and non-normative families, is to clarify what the case did and didn’t do and to untangle the impact of some of these shadow concerns. While the Indian law analysis is largely mine and the family law analysis largely hers, the post is a product of our collective views. Today’s post is about the case’s implications for how we think about fatherhood and parenthood.

As a matter of federal Indian law, it was easy to support Dusten Brown and the Cherokee Nation in this case. The more difficult question has been whether we would feel differently about the case if Indian law were not involved. Should we really have any sympathy for a deadbeat dad who didn’t do right by his child and then later changed his mind and tried to undermine the mother’s decision? But again the case is not so simple. Veronica’s parents were engaged when she was conceived. When he learned of the pregnancy, her father pressured her mother to get married even sooner. She broke off the engagement. Fighting over text messages, she gave him the choice between paying child support and relinquishing his rights. He chose relinquishment (he says he thought he was simply agreeing to give her full custody). He was stationed at Fort Sill and was preparing to deploy. He probably thought his ex would take better care of the baby (and would need full parental rights if he didn’t return from Iraq), and she seems to have made it clear she didn’t want him around. He had no idea she planned to give the baby up for adoption. 

He didn’t pay any child support or reach out to his child until she was four months old. His behavior during the breakup was rash and immature, and his failure to pay child support, help his ex through her pregnancy, and parent his daughter shouldn’t be applauded. It can be painful to feel like we are championing the rights of irresponsible fathers when we know all too well that the price of their mistakes falls on the mothers. But the dissenting Justices (including all the women) understood the complexity of this too:

In an ideal world, perhaps all parents would be perfect. They would live up to their parental responsibilities by providing the fullest possible financial and emotional support to their children. They would never suffer mental health problems, lose their jobs, struggle with substance dependency, or encounter any of the other multitudinous personal crises that can make it difficult to meet these responsibilities. In an ideal world parents would never become estranged and leave their children caught in the middle. But we do not live in such a world. Even happy families do not always fit the custodial-parent mold for which the majority would reserve IWCA’s substantive protections; unhappy families all too often do not. They are families nonetheless. Congress understood as much.

As soon as Brown found out about the pending adoption (it was arranged without his involvement, and he found out when he was served with papers days before he was to leave the country), he fought it. He got a lawyer. He indicated when served that he did not consent to the adoption. He sought a stay of the adoption proceedings. He tried to have Veronica placed with his parents while he was away, but the Capiobiancos wanted to keep Veronica while the courts considered whether to grant the adoption. Brown was overseas for more than a year, and he returned to court when he came back to continue opposing the adoption. This story, rather than Brown’s lack of interest in his daughter, explains why the adoption hearing took place when Veronica was two and had already been living with the Capiobiancos for most of her life.  

Biology v. Action

The Court seems to embrace South Carolina’s “biology plus” formulation for establishing paternity, reflecting the larger trend in family law towards preferring functional over formal family structures. “Biology plus” means that paternity is established with DNA and then outward signs of interest in the child, like paying for prenatal appointments, preparing a nursery, and so forth. Concern about Brown’s outward signs of commitment to fatherhood is odd because women aren’t held to the same standard during pregnancy and birth. Women who choose to carry a pregnancy full term aren’t required to pay for their appointments, prepare a nursery, and so forth to show that they deserve to keep a child; so long as they aren’t smoking, drinking, or doing drugs, commitment to being a parent is all assumed in the choice to deliver the infant. This is not to defend Brown for not pitching in financially at the outset: there is no denying the reality that most unmarried women do the bulk of care work and pay most of the expenses involved in having children. But we should be careful about how we frame fatherhood through ministerial duties. In other cases, biology reigns – biological parents can’t avoid paying child support (even if you’re a sperm donor for a lesbian couple), so why doesn’t biology matter in the same way here? As Justice Scalia noted in his dissent: “It has been the constant practice of the common law to respect the entitlement of those who bring a child into the world to raise that child. We do not inquire whether leaving a child with his parents is ‘in the best interest of the child.’”

This isn’t about a blind allegiance to biology: valuing functional families has beneficial effects. Allowing the law to view function in concert with biology has served to help stabilize LGBT, single parent, and adoptive parent families. But adhering too closely to a functional model of parenthood, especially when the actions deemed most important involve the provision of material resources, may further weaken non-normative families. When functionality in the form of privilege outweighs biology, there is no room for the possibility that unquantifiable aspects in biological relationships bind people together. The questions raised about Brown’s parental fitness seem to be an opportunistic preference for the functional model of parenting over the biological. If biological parents with low income, poor educational attainments, and limited choices are held to a standard like Brown was, and they do not perform commitment to parenting in the way that white, middle and upper class parenting norms suggest is appropriate, will they be deemed unfit parents? 

Setting Standards for Fatherhood

It is understandable why some states treat an unmarried biological father’s financial and emotional contributions as different issues. The state seeks private financial support for children; a focus on financial support makes sense because a child will benefit from having more material resources. For many single mothers who have had to shoulder the care and keeping of children, having courts inquire into the biological father’s relationship with the child provides an avenue for preventing abuse and intrusion from a parent who in the past has neglected parental obligations and may not have the best interests of the child at heart. It may even make sense for financial contributions to stand as a proxy for an emotional commitment to parent a child. However, requiring financial support from unmarried men in lieu of recognizing other forms of parental contributions does not just neutrally value those different kinds of contributions to a child’s life. This restrictive viewpoint values financial support more than emotional carework and leads some men to believe that fatherhood is solely about providing financial resources. Another twist is that the norms for performing rightful fatherhood, often aligning with stereotypes about race and income level, may be impossible or repugnant to some men. As a feminist, I find it troubling when men are not held financially accountable for their children, but I find it equally troubling when men are discouraged from doing carework and relationship building. 

In this case, when the majority and the media talk about Brown, they give him very little room to do what mothers do all the time – change his mind. When non-Indian birth mothers who plan to relinquish children for adoption give birth, usually they have a time period, albeit a short one, right after delivery in which to change their minds. Rather than condemn Brown for his behavior during the pregnancy and first four months of Veronica’s life, the time lapse should be understood as a period in which he came to terms with his parental responsibilities. Although only anecdotal, my days in practice led me to believe delayed timeframes for unmarried fathers wasn’t uncommon. Without fanfare or major changes to statutory support guidelines, when an unmarried father who has not played any role in a child’s life appears before the court to establish paternity, judges simply add up the costs of prenatal care and delivery, divide it in half, and add that amount as back support to the regular support order. More importantly, Justice Sotomayor points out that ICWA gave Brown a statutorily protected right to change his mind “up to the time a final decree of adoption was entered” and the petitioners agreed with the South Carolina Supreme Court that Brown had never given valid consent for Veronica’s adoption. That returns us to the point where Brown’s status as a parent with any rights at all hinged on a functional performance of fatherhood that the majority determined Brown did not meet.  

What Does the Holding Mean for Brown and Other Indian Fathers?

Justice Sotomayor’s dissent highlights how the majority’s interpretation makes Indian parents without custody vulnerable to a confusing “illogical piecemeal scheme.” This case could be interpreted to reach Indian parents who have “embraced the financial and emotional responsibilities for parenting” but do not have custody. The majority’s view of fatherhood requirements provides a limited vision of fatherhood. Although the majority speaks in terms of custody, it is important to recognize that formal custody is only obtained when a father can and does perform according to mainstream norms and has the legal resources to attain custody if there has been a dispute with the birth mother. If this view is extended to other parents, communities that have historically been unable or unwilling to keep mainstream norms are especially vulnerable to losing their children to the other birth parent or to the state. But failure to adhere to mainstream parenting norms, or even a failure to parent perfectly according to anyone’s norms, doesn’t mean that they aren’t good parents or that their contributions should be devalued. An older, but still relevant, study about African American fathers’ contributions to family life is available here.

Matthew Fletcher hints here that Justice Breyer’s question, “Could these provisions [Section 1915(a)(1-3)] allow an absentee father to re-enter the special statutory order of preference with support from the tribe, and subject to a court’s consideration of ‘good cause?’” could help Brown. Justice Breyer’s concurrence, while not quite imagining the range of circumstances that unmarried Indian fathers could have, does give voice to the concern that the majority view is too restrictive. Whether the restrictiveness that gives him concern is specific only to unmarried Indian fathers or pertains to all unmarried fathers, he is not wrong that we should be concerned about the laws and social norms for defining unmarried parenthood as the rapidly growing number of people who are opting out of marriage doesn’t appear to be slowing.

Posted by Addie Rolnick on June 30, 2013 at 04:30 PM in Constitutional thoughts | Permalink | Comments (0) | TrackBack

SSM ongoing in California

So reports Lyle Denniston at SCOTUSBlog. On Friday, the Ninth Circuit lifted the stay on the district court injunction and California began performing same-sex marriages across the state (so far, I have heard no reports of recalcitrant county officials). Prop 8's proponents petitioned Justice Kennedy (the circuit justice for the Ninth Circuit) to reinstate the stay, arguing that because SCOTUS' mandate had not yet issued (that does not happen for 25 days, pursuant to SCOTUS rules), the Ninth Circuit still lacked jurisdiction over the case and thus could not lift the stay.

Lyle notes that Kennedy did not explain his decision. It might have been that the petitioners, lacking standing to appeal, also lacked standing to challenge what the Ninth Circuit did with the stay. It might have been that the Ninth Circuit retained jurisdiction over its own stay of the district court order, even if it no longer had jurisdiction to rule on the merits of the case.

Posted by Howard Wasserman on June 30, 2013 at 04:21 PM in Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (0) | TrackBack

Where Were The Lawyers, Chapter 25,847: The Paula Deen Fiasco

Jimmy Carter says Paula Deen has been punished enough for her use of racial epithets.  True, many people of her age and background probably used racial epithets (although many probably did not).   But that she is no worse than other people is irrelevant--she was a brand, and the brand was based on distinctive friendliness, wholesomeness, and kindness.   Her brand was destroyed--her endorsement losses include Target, Walmart, Smithfield, QVC, Sears, J.C. Penney, Novo-Nordisk, and Ceasars Entertainment--not simply because she used racial epithets, but deservedly because she forgot the importance of her image.  The deposition transcript makes her look indifferent to racial and sexual harassment by her brother at her restaurant--it was very difficult for the plaintiff's lawyer to get her to admit the inappropriateness of what seemed like an unremitting flow of crude remarks.  A purely legalistic strategy might work if you are an investment bank or a multinational, but if your stock in trade is niceness, it is a big problem if your brother and business partner admits the "use of the word n**** in the workplace" and you can't bring yourself to stop it or even admit that it is wrong.  While the client has free will, I fear that this fiasco is Martha Stewart all over again, where, somehow, a person paid large fees to talk herself into trouble while represented by distinguished lawyers.

The suit involved a former female manager at Uncle Bubba's Seafood and Oyster House, which is partially owned by Deen and managed by her brother, Earl "Bubba" Hiers, also a part owner.   The restaurant loses money and is subsidized by Paula Dean Enterprises.  Bubba is alleged to be a crude person, who, according to the allegations, showed up at work drunk, assaulted an employee, viewed pornography at work and showed it to unwilling employees, and used the N-word.  According to Paula Deen herself, Bubba stole money from the restaurant, received in-patient drug and alcohol rehabilitation, and told racial and sexual jokes to employees.  Ms. Deen hired a consulting firm to evaluate the complaints, which found them valid, but Ms. Deen rejected that opinion because she concluded that the firm she herself hired had been deceived by people  with evil motives. (Oddly, the firm has an endorsement from Paula Deen on its website)

Demonstrating great lack of curiosity, Ms. Deen testified she never asked her brother about the truth of the allegations against him, but apparently assumed that the pornography-watching and showing  could have happened ("I know that all the men in my family at one time or another they'll tell each other, look what so and so sent me on my phone, you know.  It's just men being men.", Tr. at 69), and that if it did, was unwilling to say it was improper ("You know, each situation can--can be different.  It's not black and white.  there's a lot of gray in that." Tr. at 68). 

It seems to be a case of blood being thicker than water.  She was in money-losing business with a brother who she knew was problematic, and, after she got rich and famous, instead of hardening her heart (or even writing a big check and keeping her distance professionally) she stayed in business with him.  When asked "Can you imagine your brother speaking to a female employee who had just gotten dentures that I'll bet your husband is going to like that?" She responded "I can imagine several men in my life that would have said something similar."  Tr. at  136.  

True, rich people don't like to be pushed around, but Paula Deen's participation in a deposition where everyone knew that she would say the things that she said reflects such catastrophically bad judgment that it is almost inexplicable.  Perhaps she overruled her lawyers because she was penny wise and pound foolish, perhaps she did not understand that the public would regard her toleration of racial and sexual harassment, even if she was technically not liable, as inconsistent with the warm family values associated with her personality.   Alternatively, perhaps her lawyers failed to offer their business judgment that with at least smoke, the case should be settled quietly. Obviously this is true in retrospect, but with six or more lawyers defending the case, and takeover-style discovery, I wonder if even before the implosion settlement would have cost dramatically more than defense. I sure hope that in the file there is an emphatic letter to Ms. Deen from counsel strongly advising settlement of the suit at whatever price it costs.  

Posted by Jack Chin on June 30, 2013 at 04:35 AM | Permalink | Comments (4) | TrackBack

Timeless Classics About Conferences

Not that many law review articles are intentionally funny.   I commend to those who have not seen it a major exception, Eric Muller's What's In a Name(tag)? .   It seemed relevant after I attended Law and Society and the AALS Midyear, but it is 11 years old and not available for free on line, so it probably does not get the circulation it deserves.  The paper proposes radically  improved nametags to deal with the dilemma of whether to speak or remain silent when making eye contact with a person at the AALS (or, by implication, at other big conferences).  Professor Muller writes: 

I cannot overstate the importance of this choice. Each might strike gold: the other person could be, say, the chair of appointments at Texas. On the other (and far likelier) hand, each might strike out: the other person could be, say, a legal-research-and-writing teacher from Wyoming. [Muller's former position]  And make no mistake: that second possibility is disaster. Who wants to waste valuable networking time with someone off the network? Just yesterday I myself spent (read "wasted") several minutes on idle pleasantries with somebody who could not advance my career in any way!  Time at the AALS is too short for that sort of thing. That is what LAWPROF is for.

And, while thinking about conferences, no academic is fully prepared for career-advancing denigration of other people's work without reading economics Nobelist George J. Stigler's The Conference Handbook, 85 J. Pol. Econ. 441 (1977), also, unfortunately, requiring a JSTOR subscription or free registration.  Although economics-focused, many witticisms will readily translate.  My favorite suggested comment: "I can be very sympathetic with the author; until 2 years ago I was thinking along similar lines."

Posted by Jack Chin on June 30, 2013 at 04:35 AM | Permalink | Comments (2) | TrackBack

Adoptive Couple v. Baby Girl (2 of 4): 3/256th Cherokee?

This case has been shadowed by concerns about Indian authenticity, equal protection, fatherhood and motherhood, dysfunctional child welfare systems, and “deserving” adoptive parents. The purpose of this series (part 1 is here), co-authored with Kim Pearson, a family law professor who writes about transracial adoption and non-normative families, is to clarify what the case did and didn’t do and to untangle the impact of some of these shadow concerns. While the Indian law analysis is largely mine and the family law analysis largely hers, the post is a product of our collective views. This post address race, tribal enrollment, and Indian authenticity.

Baby Veronica’s mother is “predominantly Hispanic” and her father has only a small fraction of Cherokee ancestry. Legally, his fraction of ancestry doesn’t matter; only his tribal enrollment does. But the very first sentence of Justice Alito’s opinion describes Veronica as “1.2% (3/256) Cherokee,” underscoring the anxiety about race that has pervaded the case. The father has only a distant Cherokee ancestor - isn’t he more white than Indian? Sure, he is enrolled in the tribe, but how can “one drop of blood . . . trigger[] all these extraordinary rights?” (asked Justice Roberts during the argument). Why should the child’s ties to her Cherokee heritage be privileged over her Hispanic heritage, especially if she is fractionally more Hispanic than Cherokee? It is these racial anxieties, rather than the law itself, that seem to drive the majority opinion as well as the media coverage of the case. As Will Baude points out, neither the majority nor the concurrence  has much in the way of express discussion of equal protection concerns. But the briefs, the oral arguments, and the references to fractional ancestry that peppered the majority opinion suggest these kinds of questions lurked just below the surface.

The short answer is that Indianness, especially in the form of formal enrollment in a tribe, is a political classification, not just a designation of race, heritage, or culture. I have written elsewhere about how to make sense of the “racial v. political” dichotomy that that seems to trouble many people about Indian law. In my view, it makes no sense to claim that Indianness has nothing at all to do with race and racism, but it is equally a mistake to suggest that the specter of race renders it less of a political status in the sense that the term is used to denote a particular legal history in which the federal government has treated Indian tribes as separate nations and has assumed unique powers to legislate with respect to tribes and indigenous people. (Bethany Berger and Sarah Krakoff have also written about this interplay.) Indian tribes have a different relationship with the federal government than any other group, a relationship based largely on treaties and recognition of nationhood. That is why Veronica’s Cherokee-ness matters in a way that her Hispanic-ness does not.

The term “Indian” has various definitions in different areas of federal law. In general, though, legal Indianness requires indigenous ancestry (descent from a group indigenous to what is now the United States) and some kind of political recognition. There are certainly areas of Indian law that spur debates about what qualifies as political recognition, but this is not one of them. As noted above, the definition of Indian here is clear, and it is clearly tied to tribal enrollment. Of all the possible indicia of Indianness, formal enrollment in a tribe is the most clearly “political” because it refers to national citizenship. Yet even enrollment-based distinctions raise concerns because most tribal enrollment rules require a demonstration of ancestry. Ancestry in tribal enrollment rules serves a different function than simply being “a proxy for race,” though. It is a nod to the kinship relations that form the basis of most tribes, and it is an indicator of indigeneity. As Justice Sotomayor points out in her dissent, the majority’s frequent references to the tribe’s reliance on descent and its “second-guess[ing]” of the tribe’s membership requirements are ironic in light of the fact that federal regulations require that all members demonstrate “descent from a historical Indian tribe” as a condition for tribal acknowledgement. 

But the anxiety runs even deeper. The Cherokee Nation is one of a handful of tribes that require only lineal descendancy to enroll. Many tribes require a certain degree of ancestry (called “blood quantum”), and some impose additional requirements (the most recent study of enrollment rules is here). Most often, tribes are criticized for this use of blood quantum in their enrollment criteria. The criticism is both external (by requiring that members possess a certain percentage of “Indian blood,” tribes are injecting race into their citizenship criteria) and internal (minimum blood quantum requirements are partly the product of federal influence and reflect a campaign to ensure that “real” Indians will eventually disappear). (For more about the history of blood quantum, I suggest starting with Paul Spruhan and J. Kehaulani Kauanui.) The Cherokee Nation does not require members to have any specific blood quantum; members must instead demonstrate descent from a person on the historical tribal rolls. Instead of being cheered for removing race from its enrollment criteria, however, it is chided for relying on nothing but race  - and only an “insignificant” fraction at that. (Similar concerns surrounded the use of ancestry in Rice v. Cayetano. Ironically, Justice Roberts argued that case for the state - the party relying on ancestry - yet he may be the current Justice most concerned with the use of ancestry in Indian law.)  

Tribes can’t win here. If they require a specific percentage of Indian blood, they are relying on race. If they require only descent, their members aren’t really Indians (see Alex Pearl’s recent post). If they do not require descent, they are no longer indigenous. At the oral argument, Justice Roberts was also concerned about the possibility that ICWA could apply based on only enrollment, but not ancestry. He asked about a “hypothetical tribe” with a “zero percent blood quantum” that is “open for, you know, people who want to apply, who think culturally they’re a Cherokee or - and number of fundamentally accepted conversions.” And if you are paying close attention, you know that the Cherokee Nation is the same tribe being sued for removing freedmen from its rolls because - according to the tribe - they lack indigenous ancestry. (Of course, it is far more complicated, but this isn’t a post about the Cherokee freedmen.) I chose the term “racial anxieties” carefully because that is exactly what plagues Indian law. The problem is that the Justices (and the public) don’t know how to think about race and Indian law. Is it too racial? Is it not racial at all? Is it not racial enough? And what is race anyway?

That the law itself remains intact is no small victory. The brief for the guardian ad litem in this case advocated a reinterpretation of ICWA that would demand some additional “non-biological” demonstration of Indianness (presumably besides tribal enrollment), arguing that the law is unconstitutional otherwise (see here for a discussion of how this argument has surfaced in other ICWA cases). The attorney for the GAL, Paul Clement, recently attacked the constitutionality of Indian legislation in another area. Given Clement’s track record before the Court, tribes are rightly concerned that these lingering racial anxieties could damage tribal rights even more than they did here.

Posted by Addie Rolnick on June 30, 2013 at 03:17 AM in Constitutional thoughts, Culture, Current Affairs, Gender, Law and Politics, Things You Oughta Know if You Teach X | Permalink | Comments (6) | TrackBack

Saturday, June 29, 2013

Justice Thomas

Eric Posner says of Clarence Thomas, "Justice Thomas has integrity, but it’s the integrity of a madman. He is the Ron Paul of the Supreme Court."  Well, I thought Glenn Greenawald made a good point about Ron Paul, but in any event this has been a very interesting month for Justice Thomas.

  • He wrote separate concurrences in Fisher and Shelby County which heavily invoked the civil rights movement but were mysteriously quiet about the original meaning of the 14th and 15th Amendments.
  • He continues a willingness to rethink entrenched but highly dubious precedents, arguing that prosecutors ought to be able to comment on a defendant's refusal to testify, and that the federal government does not have plenary power over Indian affairs.
  • He wrote the majority opinion in Alleyne, a huge blow against overly punitive mandatory minimum sentences, and possibly one of his most important majority opinions ever.  (Justice Breyer, what took you so long?)
  • The Court extended one of his other important majority opinions (Gross v. FBL) in UT SW v. Nassar.
  • He demonstrated a refreshing indifference to the "anti-canon," citing Bush v. Gore in a dissent about the Elections Clause and citing Korematsu (seemingly approvingly) in a discussion of strict scrutiny.  (Jamal Greene attributes the latter to Justice Thomas's "quasi-religious devotion to constitutional rules over standards, born of his evident hostility to judicial discretion."  But I don't think that's right.  Justice Thomas is not nearly as passionate about rules over standards as Justice Scalia is; what he has is a Hobbesian streak in terms of government power to avert anarchy.)
  • And last but not least, he was the only justice to get the jurisdictional issues correct in both Windsor and Perry (which is to say, he dissented in both).  In Windsor, the United States asked for the judgment to be affirmed, which should have scuttled the case.  In Perry, the state of California (represented by a guy named Hollingsworth) asked for it to be reversed, which should have kept it alive. 
I'm not saying he was right about everything, but he doesn't sound like a "madman" to me.  And I think liberals ought to be embarrassed not to have anybody on the Court who can serve as a counterweight.

Posted by Will Baude on June 29, 2013 at 11:09 AM | Permalink | Comments (12) | TrackBack

Adoptive Couple v. Baby Girl (1 of 4): Why the Court’s ICWA Ruling Matters

I’ve been a quiet guest this month, but this post (part 1 in a 4-part series) has been germinating a long time. Indian country issues get very little press (academic or otherwise), but when the occasional case is more widely followed, it can surface misunderstandings about Indian law and history and deep-seated anxieties about how Indian rights mesh with other areas of law. During my last guest stint here, I addressed this phenomenon in posts about the widely-debated Santa Clara Pueblo v. Martinez case and the Supreme Court’s 2012 holding in Ramah Navajo Chapter v. Salazar. I’m particularly concerned with how these crossover cases make their way into law school classes and legal scholarship not typically focused on Indian law, and I hope professors who incorporate these cases will find some of my observations and links useful. 

 Adoptive Couple v. Baby Girl, a major Indian law decision that has been nearly buried among the responses to Shelby, Fisher and Windsor, is one of those cases. It is a case about the language, history, and intent of the Indian Child Welfare Act, but the statutory issues have been shadowed by concerns about Indian authenticity, equal protection, fatherhood and motherhood, dysfunctional child welfare systems, and “deserving” adoptive parents. The purpose of this series, co-authored with Kim Pearson, a family law professor who writes about transracial adoption and non-normative families, is to clarify what the case did and didn’t do and to untangle the impact of some of these shadow concerns. While the Indian law analysis is largely mine and the family law analysis largely hers, the posts are a product of our collective views. Here, we address the holding and its immediate significance. In later posts, we will address the lurking issues.

What Exactly Is the Indian Child Welfare Act?

The Indian Child Welfare Act is a federal law that sets particular procedural rules that must be followed before parental rights can be terminated over a child who qualifies as “Indian.” The law was passed in 1978 to counter generations of forced removal of Indian children from their homes and communities, first via federally-sponsored assimilationist boarding schools and later via state child welfare systems, which removed Indian children from their homes at alarmingly high rates and placed them with white families, which were perceived to be better than their home communities. (This history is described in detail in an Indian law professor amicus brief filed by Stuart Banner and Angela Riley at UCLA.) The law does many things, but most important in this case are the procedures that state courts must follow if an Indian child (defined as as one who is “a member of an Indian tribe” or “is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe”) comes before them in a foster care, parental termination, or adoption proceeding. These include notifying the parent and the child’s tribe, giving the tribe the opportunity to intervene or to assume jurisdiction over the case, setting a high evidentiary and procedural bar before parental rights can be terminated, and, in the event of removal, placing the child with a relative, a family from the same tribe, or another Indian family if at all possible. 

In the only other ICWA case it has ever heard, the Court recognized that the law is primarily concerned with connecting tribes and children by strengthening tribal governments’ control over the placement of their children and by recognizing that the “best interests” of Indian children include maintenance of their tribal ties. (On the issue of what is “best” for adoptee children, read the amicus brief filed by pre-ICWA adoptees. The common complaint that the child’s best interests are “overridden” by the tribe or by federal law misses this aspect of ICWA; it recognizes that protecting the relationship between tribe and child is in line with, not antithetical to, the best interests analysis). That case, Mississippi Band of Choctaw Indians v. Holyfield, also involved a voluntary adoption in which the birth parents intentionally left the reservation in order to have their children adopted through state court to a white couple. The Court held that the statute required that the tribe have jurisdiction over the case, effectively refusing to allow individual Indian parents to circumvent the larger purposes of the law. Justice Scalia was in the majority in Holyfield, and he later described the decision to “turn that child over to the tribal council” as “very hard” but clearly mandated by the law. Justice Scalia’s characterization makes it sound as if the children were cruelly ripped from their adoptive home and returned to an opaque pit of corruption. What most people don’t know is that the Mississippi Choctaw tribe, after accepting jurisdiction and considering the best interests of the Holyfield children, eventually placed them with the adoptive family the parents had chosen, but required the parents to maintain contact with the children’s extended family and tribal culture. One lesson of that case, then, is that following federal law and respecting tribal jurisdiction doesn’t mean children won’t be properly placed in loving homes.  

The Facts

Baby Veronica, as she is known, is the child of a non-Indian mother and a Cherokee father, Dusten Brown. (Indian Country Today has a nice 4-part series on the family involved in the case. The first article is here and the last article, with links to the earlier ones, is here.) Her mother placed her up for adoption through a private agency and chose the Capiobiancos, a white couple with professional careers and advanced degrees, who have been referred to in most of the media coverage as “ideal” parents. As the court noted in the first footnote of its opinion, there was never any question that Veronica was an “Indian child” involved in a “child custody proceeding”  - exactly the situation that would normally trigger ICWA’s requirements. The mother knew Brown was Cherokee, but she and/or her attorneys made several misstatements along the way (requesting information about enrollment using the wrong name and date of birth for Brown, listing the baby’s ethnicity as Hispanic on interstate transfer forms), and so the tribe was not involved. But the petitioners argued that because Brown failed to pay child support and did not have custody of Veronica, he had essentially abandoned her and therefore was no longer a “parent” under the law. With no Indian parent, they argued, there was no basis for applying ICWA.

This, of course, is precisely why ICWA matters: under state law in South Carolina, a father who has not actively parented (i.e., paid support, been actively involved in child’s life) has no right to object to an adoption, but ICWA superseded state laws to institute a uniform, more stringent standard in cases involving Indian children: parental rights cannot be terminated and Indian families cannot be broken up unless active efforts have been made to keep them intact and the parent has been deemed beyond a reasonable doubt to be unfit. (Voluntary relinquishment under ICWA requires a written order entered before a judge, which did not happen here.) Both the state family court and the supreme court denied the adoption, finding that ICWA’s standards for involuntary termination of parental rights (stricter than state law) had not been met. The question before the Court was whether ICWA should apply at all.

How the Court Narrowed ICWA

It is important to say here that the Court did not invalidate any part of the statute. It simply held that a non-custodial father cannot invoke ICWA’s protections. (Justice Thomas’ concurrence, on the other hand, inexplicably asserts that Congress has no power to supersede state law where Indian children are involved.) The majority (Alito, Roberts, Kennedy, Thomas and Breyer, whose concurrence is more limited) read the law as concerned primarily with involuntary termination proceedings in which state social workers come into Indian families and remove children. A non-custodial Indian father invoking the statute to counter the voluntary adoption initiated by a non-Indian mother seemed to the majority to be outside of the law’s scope. In the majority’s view, this case was not about “the breakup of the Indian family” because the only Indian parent was not actively parenting the child at the time. In other words, there was no Indian family to break up. The Court remanded the case to state court after holding that ICWA does not apply, but it did not order that Veronica be returned to the Capiobiancos. The state court must now decide, applying state law, where to place her

(The majority also held that ICWA’s placement preferences did not apply because no other prospective adoptive parent was put forward by the tribe. This is disingenuous; no other placement was suggested because Brown’s extended family and the tribe supported Brown’s efforts to retain custody. The dissenting opinion points out - correctly, in my view - that the Court cannot rule on the placement question preference question before it has arisen, leaving room for the possibility that a relative could seek custody on remand. Justice Breyer, in his concurrence, suggested that Brown could be considered as a prospective adoptive placement if his rights were terminated.)

The blow struck by this case is significant. As the Court recognized in Holyfield, ICWA is about preserving the relationship between an Indian child and her tribe. The tribe has an interest in its children that may be separate from the interests of the Indian parents. The child’s interests are likewise served by maintaining a connection to her tribe and her extended family, even if she no longer has a relationship with her parents. In this case, the Cherokee Nation supported Dusten Brown’s effort to regain custody, but tribal intervention does not always (or even usually) mean returning the child to her Indian parent. By focusing so much on the father’s actions in the case, the Court has allowed tribal rights to be subsumed by an individual parent’s lack of responsibility. This is precisely the opposite of its holding in Holyfield, and it significantly undermines the spirit of the law.

For what it’s worth, I am a non-Indian mother of Indian children. Were we to consider giving our children up for adoption, or if they removed from our care, the ICWA’s procedures would come into play, possibly limiting our preferences about where we would want the children placed. I don’t consider ICWA’s recognition of a relationship between child and tribe to be an unfair burden or a barrier to pursuing my children’s best interests. As the Court recognized in Holyfield, but completely failed to acknowledge in Adoptive Couple, the two are closely linked. 


Posted by Addie Rolnick on June 29, 2013 at 03:12 AM in Constitutional thoughts, Culture, Current Affairs, Gender, Law and Politics, Things You Oughta Know if You Teach X | Permalink | Comments (2) | TrackBack

Constitutional Avoidance in Baby Girl

After listening to the oral arguments in Adoptive Couple v. Baby Girl, I expected the final opinion or some separate writings to have a lot of discussion of constitutional law (perhaps through the lens of constitutional avoidance).  But I expected it to be about equal protection-- I expected hints that members of the Supreme Court thought that modern Indian law was highly troubling as a matter of disparate racial treatment, perhaps with further hints that some members of the Court would reconsider (or at least radically narrow) Morton v. Mancari

So in fact I was surprised to see absolutely none.  Justice Alito says of the dissent, in one sentence, "Such an interpretation would raise equal protection concerns, but the plain text of §§ 1912(f) and (d) makes clear that neither provision applies in the present context."  Justice Thomas's opinion (more on which in a second) contains only a footnote saying he won't reach the issues. ("I need not address this argument because I am satisfied that Congress lacks authority to regulate the child custody proceedings in this case.")  Based on where things seemed headed at argument, supporters of modern Indian law ought to regard this case as dodging a bullet. 

(For that reason I wholly disagree with Eric Posner's assessment that "the majority has laid the groundwork for a future equal protection challenge to Indian classifications and fortified its position that the equal protection clause bans racial preferences like affirmative action."  Maybe they will do so in a future case, but they haven't done so here, and if they do it, it will be in an opinion joined by Justice Scalia and not one joined by Justice Breyer.  Given Breyer's concurrence, why would he join an opinion that lays the "groundwork" that Posner suggests?)

That said, Justice Thomas's concurring opinion is astounding.  It's a surprising, radical rethinking of federal enumerated power over Indians, making the (expected) point that Thomas's narrow view of the interstate commerce clause implies a narrow view of the Indian commerce clause.  Basically, it's an inversion of the argument that Akhil Amar has made that early perspectives on the Indian commerce clause should demonstrate a broad view of the interstate clause.  But more than that, it also has an interesting and narrow reading of "Indian tribes," ultimately concluding that "the ratifiers almost certainly understood the Clause to confer a relatively modest power on Congress — namely, the power to regulate trade with Indian tribes living beyond state borders."

For all of these conclusions, Thomas relies extremely heavily on Robert Natelson's Original Understanding of the Indian Commerce Clause, (and a little on Sai Prakash) although I can't tell for sure if Thomas's conclusions perfectly match theirs.  But Jacob Levy argues that Thomas has the original intent entirely backwards:

Thomas is right that the Indian Commerce Clause should not be read in the Lone Wolf/ Kagama way to grant plenary power over all Indian affairs. But he's so utterly wrong about the jurisdiction to which the clause applies that the conclusion ends up backward: he would grant plenary power *to the states*, and declare the clause a dead letter now that there is no part of Indian Country that lies outside state boundaries. There is simply no evidence that the Founders envisioned the extinction of Indian Commerce Clause jurisdiction and a complete transfer of power to the states.

I am not sure where I stand on all of this.  Levy's paper on Madison's drafting of the Indian Commerce Clause (and the material it contains) is enough to convince me that Thomas is going a little too fast here, and that the extreme version of the argument he seems to be sketching may be wrong as an originalist matter.  But I'm not yet sure exactly where Thomas or Natelson go wrong, if they do.  Thomas is plainly right to reject federal "plenary power" over Indians.  But are things like the end of the treaty era, or the Indian Citizenship Act relevant to federal power?  There I am less sure.

Maybe it is time to rethink the federal Indian power.  Or at least to figure out where it comes from and what it is.

Posted by Will Baude on June 29, 2013 at 03:04 AM in Constitutional thoughts | Permalink | Comments (3) | TrackBack

First came OPM

That didn't take long. Not only has California begun issuing marriage licenses to same-sex couples but SCOTUSBlog reports that OPM has ordered federal agencies to provide federal spousal benefits to same-sex spouses of federal employees, thus triggering one of the first executive decisions that must grapple with the DOMA choice of law problem.  Lyle Denniston reads the OPM memo "to indicate that the benefits would be keyed only to the status of legal marriage of the employee, wherever it was performed and regardless of where they now live." 

That may be so, (and I assume Lyle has talked to folks in the executive branch who read the memo this way) but the memo itself is actually strangely cagey about this.  It simply refers to those "who have legally married" or "are in legal same-sex marriages."  Perhaps this is intended to assume that any marriage lawful in the place of celebration is a "legal marriage," but it is not obvious to me why. 

For example, suppose a couple lives in an anti-evasive marriage state, and travels to Iowa or Massachusetts to marry, without ever changing their residency.  It would be fair to say that as a matter of their domicile state's law, they have not entered into a legal marriage, but rather an illegal one.  So saying that the benefits will apply to all "legal" marriages just triggers the choice of law question -- what do you mean, "legal"?

If this is how the executive branch intends to deal with the choice of law question, I am dispirited.

[UPDATE: Chris Geidner: "'Yes, these benefits will be available to any Federal employee or annuitant who has a valid marriage license, regardless of their State of residency,' Thomas Richards, OPM director of communications, told BuzzFeed Friday afternoon."

I assume that "valid" means "valid" under license-state law, regardless of whether it is valid under other states' laws.]

Posted by Will Baude on June 29, 2013 at 12:08 AM in Constitutional thoughts | Permalink | Comments (9) | TrackBack

Friday, June 28, 2013

The Reasonable Woman and the Zimmerman Jury

The jury that is hearing the case against George Zimmerman is all women. Some have suggested that women might be more sympathetic to the loss of a child, but there is another reason an all-female jury may be harder on Zimmerman. Jeannie Suk gave an excellent talk earlier this month at the AALS Mid-Year Conference on Criminal Justice in which she addressed expansions to the “castle doctrine,” the abandonment of the duty to retreat, and the role of masculinity in shaping these doctrines. Here is an excerpt from her 2006 article The True Woman: Scenes from the Law of Self-Defense that covers some of the same ideas (with footnotes removed):

The “true man” had a certain relationship and attitude toward his home and family. A “true man” did whatever was necessary to provide economically for his wife and children, who were dependent on him. He was the source of strong moral guidance for his vulnerable or needy wife or children. . . . To be a “true man” was to be a man who supported and protected a woman. He treated her sexual virtue with respect, even reverence. And similarly, a “true man” was protective of children. Mirroring the “particular and tender . . . regard to the immunity of a man’s house” found in the common law, “every true man” was supposed to evince a “tender and loving regard . . . for children, and [an] impulse to protect them from harm . . . .”

. . .

The “true man” rhetoric thus importantly valorized the man’s role as protector of his home and family. Reliance on the concept of the true man, then, enabled judges to leverage this appealing idea of a man defending his home and family into a more general authorization of self-defense in public places, even where the home and family were nowhere to be seen. The man defending his family against attack at home was the implicit model for the “true man” of self-defense law who in fact was permitted to defend himself without retreating from any place where he had a right to be.

Judicial opinions adopting the “true man” approach deployed a characteristically rights-focused language reminiscent of the view that an attack “without right” puts a person in a “state of war” and authorizes him to use deadly force. The new account of self-defense translated the idea of territorial boundary-crossing into a violation of a person’s rights.

Because self-defense doctrine depends so heavily on the objective reasonableness of the defendant’s actions, it matters who stands in the shoes of the hypothetical “reasonable person.” Here, the peers who will judge the (truth and) reasonableness of Zimmerman’s fear and his reaction are women. Most of the conversation about this case has centered on race (the jury includes no black women), but the law of self-defense is as gendered as it is raced. It is interesting that the jury does not include any of the people (men) whose cultural identity is at the root of much of modern self-defense law.

On a related note, the reaction to and coverage of Rachel Jeantal’s testimony speaks to another dimension of how gender is playing out in this case. For all of you criminal law professors who will use this case in your hypos or your lectures, take a look at some of the Black feminist analyses (you can start here and here). As always, these writers remind me of the ways race and gender are always present, but never simple, in criminal law.

Posted by Addie Rolnick on June 28, 2013 at 04:44 PM | Permalink | Comments (4) | TrackBack

Congressional Power and the Reconstruction Amendments

Some folks (e.g., over at Balkanization) have been criticizing Shelby County for ignoring the Reconstruction Amendments and focusing excessively on the antbellum Constitution. I entirely agree with the normative premise that it's a mistake to ignore Reconstruction. (This is one of the reasons that Hugo Black's dissent in Katzenbach sounds so off -- the Declaration of Independence and the writings of James Madison are not obviously relevant to a case about the 14th and 15th Amendments.)

And yet I'm not sure that it's actually a fair criticism of Shelby County, which does repeatedly refer to the Fifteenth Amendment. To be sure, the opinion also spends a surprising amount of time dwelling on some elements of the original Constitution, and especially McCulloch. But that may not actually be the same kind of mistake as Hugo Black's.

Much of the scholarship and historical briefing that has defended a very expansive view of Congress's enforcement authority under the Reconstruction amendments, relies on the way that the framers of the Reconstruction amendments wrapped themselves in the Supreme Court's broad interpretations of Congressional power in McCulloch and Prigg. (By the way, Akhil Amar's superb America's Constitution: A Biography scores its first SCOTUS citation in the Shelby County dissent.)

Yet even McCulloch had its limits, such as the "great substantive and independent powers" language I've written about, and the "letter and spirit" language the majority invokes. So by relying on McCulloch, the majority may actually be in the ballpark of the type of Congressional power and deference envisioned by the Reconstruction amendments. Now perhaps the majority should have talked about Reconstruction more than it did. But if it had, which side would that have helped?

Suppose that Reconstruction had taken place in the wrong states, or that Reconstruction had continued for fifty years, and that it was no longer clear whether there was any continuing need for it in the originally reconstructed states. Skeptics of the Act might well suggest that at that point, the original Reconstruction power would provide only slim support for continued federal supervision.


Posted by Will Baude on June 28, 2013 at 11:23 AM in Constitutional thoughts | Permalink | Comments (7) | TrackBack

JOTWELL: Wasserman on Colby on empathy

I have the latest essay on JOTWELL's Courts Law, reviewing Thomas Colby's In Defense of Judicial Empathy, which makes the case for the Obama vision of the "empathetic judge" and ties it back to the balls-and-strikes metaphor and its defects.

Posted by Howard Wasserman on June 28, 2013 at 09:39 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0) | TrackBack

A Personal Finance Tip for the Professoriate: NY Times Educator Rate

This sort of thing drives me crazy, wasting thousands of dollars simply by choosing a higher price over a lower price.  In the spirit of an earlier post, where I directed readers to a website where you can find unclaimed and lost assets, I point out that teachers and students can get digital and home delivery subscriptions to The New York Times at about half the regular rate.  

Posted by Jack Chin on June 28, 2013 at 06:08 AM | Permalink | Comments (1) | TrackBack

A Judicial Hall of Fame

First, allow myself to introduce...myself.  For those of you who don't know me, I teach at the University of Kentucky College of Law and write about election law.  Dan graciously allowed me to begin my July guest stint early so I could post about Shelby County.  (Thanks Dan!)  I guess my time here in February did not cause too many enemies...let's see if I can do better this month!

I just visited one of my favorite places, the Baseball Hall of Fame, and the lawyer-geek in me began thinking, "why don't we have a Judicial Hall of Fame" to honor and immortalize the greatest judges?  A quick Google search shows that there is no such thing (although there is a Father Judge High School Hall of Fame and a Louisiana Justice Hall of Fame!).  So here goes.

We first need to determine the rules for eligibility.  The Baseball Hall of Fame's rules provide a good place to start.  After all, there are plenty of analogies between baseball and judging, although, I know, judges are supposed to be merely "umpires" (tongue firmly in cheek).

To be eligible for the Baseball Hall of Fame, players must have played for at least 10 seasons and have been retired for at least 5 years.  The Baseball Writers' Association of America (BBWAA) elects new members to the Hall, and these voters select players based on "the player's record, playing ability, integrity, sportsmanship, character, and contributions to the team(s) on which the player played."  A player needs to receive votes from at least 75% of the BBWAA membership for election.

Let's incorporate those requirements into our Judicial Hall of Fame rules.  To be a member of the Judicial Hall of Fame, judges must have served on the bench (state or federal) for at least 10 years and have been retired for at least 5 years.  This excludes any current judges.  Instead of baseball writers, let's use law writers -- law professors! -- to vote on who should be in the Hall.  And following the standards for election to the Baseball Hall of Fame, law professors should elect new members to the Judicial Hall of Fame based on "the judge's record, judging ability, integrity, judicial temperament, character, and contributions to the law."  That's amorphous enough to make any law professor happy!

Now we need to decide who should be our inaugural members.  Here's where the debate should be fun.  I'll throw out a few names, and I'd love to hear more suggestions in the comments.  Who knows -- maybe we can turn this Hall of Fame into a real place with plaques and everything, where parents take their kids on a pilgrimage to honor the greatest names in the law!  "Look, Johnny!  When I was your age that Judge was my boyhood hero!"

My initial members of the Judicial Hall of Fame, in no particular order beyond the order in which I thought of them, would include:

-John Marshall:  "It is emphatically the province and duty of the Judicial Department to say what the law is."  Need I say more?

-Earl Warren:  Brown v. Board; Miranda; Loving.  

-William Brennan:  He receives an extra push from me because I'm a voting rights guy, and he pretty much started the field with Baker v. Carr.

-John Marshall Harlan:  his dissent in Plessy itself might give him this honor

-Oliver Wendell Holmes:  the "Great Dissenter"

-Hugo Black:  one of the greatest "textualists"

-Louis Brandeis:  formed today's understanding of the "right to privacy"

-Sandra Day O'Connor:  pioneer as the first female Justice, and was the "swing" vote on the U.S. Supreme Court for many years

-Learned Hand:  His influence as an appellate judge on so many areas of the law is remarkable

-Benjamin Cardozo:  Huge influence as a NY state court judge on tort and contract law (he was a judge for more than 10 years although only served on the U.S. Supreme Court for 6 years).

Have I provided enough fodder for a spirited debate?  No African-Americans are on this list (although Thurgood Marshall almost made the cut for me).  Only one female.  Too many liberals?  Only one court of appeals judge.  No judges who only served on a state court.  Which obvious Judges am I missing?  

Posted by Josh Douglas on June 28, 2013 at 02:27 AM | Permalink | Comments (12) | TrackBack

Thursday, June 27, 2013

Where does the marriage equality movement go next?

Supporters of marriage equality are rightly ecstatic over yesterday's events and it might have been the best they could have hoped from this Court in a single term. But when the ecstacy recedes, the movement is faced with a fundamental question--what do we do now, since the one thing SCOTUS did not do was end the discussion once and for all.

As Marty Lederman notes, on  August 2, there will be marriage equality in D.C. and 13 states--California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota (where a new law takes effect August 1), New Hampshire, New York, Rhode Island, Vermont, and Washington. If the theory is that SCOTUS wants a critical mass of states to adopt marriage equality before (a la Loving) it pulls the outliers along via the Fourteenth Amendment, more states probably are needed. So what states should the movement target? Presumably, if pursuing popular means (legislation or ballot proposals), you look to "blue" states. But where? Illinois, is an obvious choice (Democratic governor, large Democratic majorities in both houses, Obama's home state), but a bill to give same-sex couples the right to marry was recently held back because it did not have the votes. New Jersey is also blue, although it has a Republican governor, as do Pennsylvania and Wisconsin. Plus, those states, like Michigan, have a bit too much of a conservative streak. Oregon? Colorado?

And should the focus be on the legislatures and voters or on the courts? As the Slate piece cited above notes, the popular momentum from last November seems to have slowed a bit (perhaps because there are no states that are obvious candidates). And maybe yesterday's events signal that federal litigation is now a better strategy than it was a few years ago, helped by the district court opinion in Perry and strong language in Windsor? If so, in what states and in what circuits? Do you target Illinois or Wisconsin and hope you get Posner on the panel? Do you target Pennsylvania or New Jersey hoping, where the Third Circuit has more Democratic appointees  and something of a right-friendly reputation?  A judge in the District of Nevada upheld that state's voter-approved (twice) prohibition; when the plaintiffs appealed, the ballot proponents then tried to get SCOTUS to hear the case directly. Yesterday, SCOTUS declined. So that case goes back to the Ninth Circuit, where I imagine (hope?) the Ninth Circuit to invalidate the prohibition. Does SCOTUS immediately take that case for next term (as Justice Scalia predicted in his Windsor dissent)?

Posted by Howard Wasserman on June 27, 2013 at 04:54 PM in Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (5) | TrackBack

Off the Rails?!

This contribution to Slate probably made Brian Leiter's heart go pitter-patter, if not argle-bargle. Specifically, Eric Posner, in response to the week's action at SCOTUS, writes:

"The conservative justices really are very, very conservative. I had up until now pooh-poohed liberal constitutional law professors and journalists who argued that the court had gone off the rails. Mea culpa."

Posner fils, for the win.


Posted by Administrators on June 27, 2013 at 03:51 PM in Blogging | Permalink | Comments (1) | TrackBack

Remedial effects of procedure

A colleague proposes the following: The overly broad language of Judge Walker's injunction, and thus the confusion about its scope, is a product of the state's refusal to defend in the district court and turning defense over to the sponsors.

I think there might be something to this. Kamala Harris' letter states that the state officials litigated on the belief (which they undoubtedly preferred) that any injunction should apply statewide as to all county clerks and registrars and as to all persons, not only the named plaintiffs. So they were not going to object to the overbroad injunction or bring the problem to the district court's attention, as an ordinary defendant, who actually defends, would have done. On the other hand, the sponsors likely were not thinking in remedial terms, since they were not the ones who would be subject to any injunction; they therefore had less incentive to really be on guard with respect to this ssue.

Posted by Howard Wasserman on June 27, 2013 at 01:08 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (7) | TrackBack

"Great Substantive and Independent Powers"

I realize that to most people it's not even the fifth-most-interesting case decided this week, but I was particularly surprised and pleased to see Chief Justice Roberts's concurrence on Monday in United States v. Kebodeaux.  I am not sure whether the majority was right about the actual question presented (federal power over sex offenders), but I do have substantial praise for the Chief's views of the Necessary and Proper Clause:

While the Necessary and Proper Clause authorizes congressional action “incidental to [an enumerated] power, and conducive to its beneficial exercise,” Chief Justice Marshall was emphatic that no “great substantive and independent power” can be “implied as incidental to other powers, or used as a means of executing them.” [McCulloch.] ... It is difficult to imagine a clearer example of such a “great substantive and independent power” than the power to “help protect the public . . . and alleviate public safety concerns,” ante, at 8. I find it implausible to suppose—and impossible to support—that the Framers intended to confer such authority by implication rather than expression. A power of that magnitude vested in the Federal Government is not “consist[ent] with the letter and spirit of the constitution,” [McCulloch] and thus not a “proper [means] for carrying into Execution” the enumerated powers of the Federal Government,
U. S. Const., Art. I, §8, cl. 18.

Until very recently, the reference to "great substantive and independent power" in McCulloch has gotten shocking little attention.  But it's invoked in the Chief's controlling opinion in NFIB v. Sebelius, and I also discuss it at length in my article on federal eminent domain and the Necessary and Proper Clause.  Indeed, as I explain in the article, variations on that same idea were invoked during constitutional debates many years before McCulloch, and are part of the original meaning of the Necessary and Proper Clause.  The greater a power, the less likely it is that it can be found by implication.  (I use the terminology "great power" in part because Madison said "great and important power," and in part because "great substantive and independent" is a real mouthful.) 

In any event, it looks like the idea is increasingly relevant to at least one Justice's thinking about the Necessary and Proper Clause, so I'd encourage people to read my article. :) 

Actually, speaking of increasing relevance, you can find pieces of the same idea in the Court's opinion (also written by the Chief) in Shelby County.  In its discussion of McCulloch, the Court writes:

The dissent proceeds from a flawed premise. It quotes the famous sentence from McCulloch v. Maryland, 4 Wheat. 316, 421 (1819), with the following emphasis: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” Post, at 9 (emphasis in dissent). But this case is about a part of the sentence that the dissent does not emphasize—the part that asks whether a legislative means is “consist[ent] with the letter and spirit of the constitution.”

Now compare the last sentence of that blockquote with the one above from Kebodeaux.  In Kebodeaux, the Chief suggests that under the "letter and spirit of the constitution," an unenumerated "great power" can't be implied; it has to be granted explicitly if at all.  The repetition of that passage in Shelby County suggests that a similar idea is at work.  And in any event, you can see a similar concept throughout the opinion.  While Congress has broad enforcement power under the Fifteenth Amendment, the Court argues that the extraordinary and unusual nature of the Section 5 remedy make it harder to sustain under the general grant of McCulloch-like enforcement authority under the Reconstruction Amendments.

I suspect we'll see more of this next term.

Posted by Will Baude on June 27, 2013 at 03:02 AM in Constitutional thoughts | Permalink | Comments (1) | TrackBack

Wednesday, June 26, 2013

What's next in California?

Right or wrong (I believe wrong), Hollingsworth  finds no standing to appeal to either to the court of appeals or SCOTUS, vacates the Ninth Circuit decision invalidating Prop 8, and reinstates (or at least sets the stage for reinstating) the broad injunction issues by Judge Walker in the Northern District of California.

So what happens now?

The first step is for the Ninth Circuit to lift the stay on the district court injunction, which it will do when the case is back in its jurisdiction, as part of an order dismissing the appeal for lack of appellate jurisdiction. California Attorney General Kamala Harris announced that she would immediately ask the court of appeals to lift the stay.

But then we must figure out what, exactly, the injunction does. Judge Walker wrote: "Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official [state and county] defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8."

The case was not brought as a class action, but only on behalf of two couples who sought marriage licenses in two counties (Los Angeles and Alameda). So the most appropriate injunction would prohibit enforcement of Prop 8 (i.e., would require issuing licenses) only as to those two couples and only by the two county clerks and the state officials named as defendants. On the other hand, Walker's injunction is written to be much broader, prohibiting all enforcement by the named defendants, and those subject to the named defendants control or supervision, against all persons. Indeed, Justice Kennedy described the injunction as "statewide" (hard to know if he was happy or unhappy with that).

Even if the injunction is erroneously overbroad, it is not clear what could be done about that. An overbroad injunction could be the basis for an FRCP 60(b)(6) Motion to Modify, as"any other reason" justifying relief from the injunction. But who could or would make that motion? The logic of Hollingsworth is that the initiative proponents lost all standing once the district court entered judgment (a judgment which does not bind or compel the proponents to do or not do anything). And it is unlikely the named defendants would do so (since they wanted to lose the case and be subject to the injunction in the first place).

The difference affects how the next couples would proceed. If the injunction does not apply statewide or to all couples, the next couple denied a license would have to file a new federal lawsuit. In LA or Alameda, they probably could use the Perry injunction for preclusive effect; in other counties, Any couple could use the injunction as persuasive authority [ed: corrected]. On the other hand, if the injunction applies statewide, any couple denied a license enjoys the benefit of the existing injunction; they could go straight to Judge Walker (or whichever other judge is supervising the injunction, since Judge Walker retired) and obtain the license through a Motion to Enforce and a threat of sanctions against the state or county officials who refused to grant the license.

AG Harris potentially mooted that issue, concluding in an opinion letter to the governor (dated June 3 and written in anticipation of this ruling) that the injunction does apply statewide. Because the plaintiffs brought a facial challenge to Prop 8, its invalidation means there is no possible constitutional application of the law for the named defendants as to any applicants (although this reasoning does not seem quite right to me). Further, she concludes that all county registrars and clerks are under the control and supervision of the Director and Deputy Director of the Department of Public Health (both named defendants) and therefore qualifiy as "other persons in active concert or participation" with parties who are bound by the injunction under FRCP 65(d)(2)(C). She insists that all clerks be given notice of the injunction and of her conclusion that they are subject to it, which a DPH official did today (although telling clerks to wait until the Ninth Circuit lifts the stay). In other words, high-ranking state officials insist that, as soon as the Ninth Circuit lifts the stay, California is back where it was in the four months in 2008 prior to the passage of Prop 8, when same-sex marriage was legal throughout California.

But what happens if a county clerk who was not a named defendant continues to believe that Prop 8 is constitutionally valid (e.g., the Clerk in Imperial County, who tried unsuccessfully to intervene in the district court) and disagrees with Harris' determination that he is subject to the injunction? One possibility is that this unknown clerk, being bound by the injunction, could now make that FRCP 60 motion to modify the overbroad injunction. Another is he could refuse to grant a license to a couple, then oppose the subsequent motion to enforce  by challenging the scope of the injunction (as to him and as to the new license applicants) and whether he is subject to control or supervision of DPH. Of course, because the scope of DPH's control or supervision is a state law issue, the district court may have to certify that question to the California Supreme Court. Another possibility is that DPH has the power to  remove a recalcitrant county clerk or to directly intervene to override the actions of a county clerk who fails to follow commands (akin to the power some state attorneys general have to supersede the actions of county-level prosecutors); whether DPH has such power is also a question of California law.

All of which is to say that SCOTUS's decision leaves in place a broad Fourteenth Amendment ruling on the constitutionality of Prop 8. But it also leaves all sorts of procedural issues, federal and state, for the lower courts to work out.

Update: Marty Lederman gives his views of what happens next, closing on several additional practical points worth highlighting. First, if a couple did have to litigate anew, they'd almost certainly win, having not only the Walker injunction as authority, but also the language in Windsor. Second, Marty doubted any clerk would bother refusing to issue licenses, because it simply will not be worth the bother or effort and ultimately will fail. Third, as a result, once the Minnesota law takes effect on August 1 and once the stay is lifted, same-sex marriage will be legal in 13 states and D.C.

Posted by Howard Wasserman on June 26, 2013 at 11:48 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (31) | TrackBack

Respectfully, up yours!

I noticed that Scalia's dissent in Windsor was not respectfully offered (color me shocked!) but Alito's was. Kennedy charmingly referred to his dissent in Perry twice as being respectfully offered, no doubt out of some awareness of the fragility of coalitions in that case.

So, for those of you Kremlin-watchers curious about the mores of SCOTUS denizens, here's a question: do you think the number of dissents offered "respectfully" has increased under CJ Roberts? Declined? Is Scalia the principal Justice who offers dissents disrespectfully or non-respectfully? Anyone want to run the numbers? Ross Davies, this is a Green Bag piece in the making!

It would also be interesting to see if there's any change in the pattern of dissents being respectfully tendered before and after Bush v. Gore.  One thing that seems impressionistically clear to me: despite the sound and fury following cases like Bush v. Gore or even the ACA cases from last year, my sense is that the Court proceeds to do its business w/o much damage let alone influence from earlier cases overhanging. Life moves on. As it should. Unless it doesn't--I'm open to seeing the data :-)

Posted by Administrators on June 26, 2013 at 05:16 PM in Constitutional thoughts, Current Affairs, Dan Markel | Permalink | Comments (4) | TrackBack

A Few More Thoughts About Koontz

I agree with most of what Rick said yesterday in his excellent post about Koontz v. St. Johns River Water Management District, although I think I may be somewhat more sympathetic to the basic exactions/unconstitutional conditions project than he is.  Rick's post does a terrific job of explaining the challenge that federal courts face when inserting themselves into the sausage-making that is local land use regulation.  As I was reading Koontz, one question that kept coming into my mind was why, if Nollan/Dolan is just an application of unconstitutional conditions doctrine, does the Court seem so eager (desperate?) to put the underlying (unconstitutional) demand within the "takings" box?  

After all, the unconstitutional conditions doctrine would be triggered by any demand that, if imposed independently, would violate the constitution.  In an unconstitutional conditions claim, the denial of the discretionary state benefit is not itself the constitutional violation.  For example, in the land use context, the denial of the permit is not itself the basis of the takings claim.  If it were, the landowner could and would challenge it directly under Penn Central, or Lucas, or Loretto.  Instead, the claim is that it is the underlying condition that, if imposed directly, would violate the constitution.  

But there is no reason why the underlying constitutional violation has to be a taking -- it could be a first amendment violation, a violation of the due process clause, etc.  If a city required contributions to the mayor's reelection campaign (or required religious conversion) in exchange for development approval, that would also trigger an unconstitutional conditions analysis.  So why the insistence in Koontz that the state's underlying demands -- if baldly imposed -- would have violated the takings clause (as opposed to suffering from some other constitutional infirmity)?

One contributing factor (though certainly not the only one) may be the exact fear that Rick points to -- the desire to keep these cases from clogging the federal courts by fitting them within the procedural straightjacket of Williamson County and San Remo Hotel.  By calling Nollan/Dolan a kind of takings cousin, the Court can keep these cases largely in state courts.  But that only works if the condition (if simply imposed) would itself be a taking.  [Another reason is probably that absence of any plausible alternatives, at least in this case.]  Whatever the reasons, however, the majority's apparent urge in Koontz to shoehorn the case into Nollan/Dolan conceived as "takings" (as opposed to just the application of the generic unconstitutional conditions doctrine where the underlying violation would be a taking) comes at the risk of distorting the takings doctrine.

The biggest potential distortion is the way the majority deals with demands for payment of money.  This in turn implicates the distinction between takings (the demand for which triggers Nollan/Dolan) and taxes (the demand for which the majority concedes does not).  As I discussed in an article a few years back, the distinction between takings of money and taxes presents some conceptual challenges.  And yet the question whether something constitutes a tax or not-a-tax has consequences for the degree of scrutiny the measure receives.  

There are tools that courts can use (and have used) to draw a line between the two categories.  One avenue, which five justices seemed to embrace in Eastern Enterprises v. Apfel, was the distinction between demands by the state for some fixed pool of money (such as a bank account or the interest earned on a particular bank account) and a general demand from the state to pay a certain amount of money (from whatever source).  The former had been treated as takings by the Court in the IOLTA cases.  In Eastern Enterprises, five justices (Justice Kennedy, concurring, and the four dissenters) agreed that mere obligations to pay money were beyond the reach of the takings clause.

 Applied in the exactions context, Eastern Enterprises would seem to mean that, because a demand to pay a sum of money cannot be a takings violation (though it might violate, say, the due process clause), conditioning permit approval on a demand for such a payment could not form the basis for a claim under Nollan/Dolan.  (Of course, it might still give rise to a more generic unconstitutional conditions claim premised on the underlying due process violation.)  In dicta in Lingle v. Chevron, a unanimous court seemed to tip its hat towards this narrower reading of Nollan and Dolan when it described those cases as "involv[ing] dedications of property so onerous that, outside the exactions context, they would be deemed per se physical takings."  (Although Alito drops a cite to Lingle in the Koontz majority, he doesn't address its characterization of Nollan/Dolan.)

In Koontz, the state had coupled discussions of in-kind exactions from Koontz's land with proposals that he pay for mitigation elsewhere on the state's own land.  The latter was the equivalent of an obligation to pay money.  This would seem to place the state's demand (though whether it was in fact a "demand" is a matter of dispute, as Kagan's dissent points out) squarely within the distinction drawn by the five justices in  Eastern Enterprises and therefore beyond the reach of the takings clause.

Justice Alito's reasons for refusing to apply that aspect of Eastern Enteprises are not very convincing.  First, he argues that, if states could get out of Nollan/Dolan by merely demanding payment of money equivalent to the value of the property interest they want from the landowner, they could render Nollan/Dolan a dead letter.  But, presumably, one reason why five justices in Eastern Enterprises treated demands to pay a sum of money as not subject to the takings clause is because they are qualitatively different (in terms of their impact on property owners) from takings of distinct items of property. If that is the case, then the fact that states offer monetary payments ("in lieu" fees, as they are called) as an alternative should not be dismissed as an end-run around Nollan/Dolan.  The question is whether the fees are themselves somehow constitutionally infirm.

Alito's second reason is even weaker, but perhaps more troubling in its implications for the takings/taxes distinction.  He says that, unlike the financial obligation in Eastern Enterprises, the demand for payment in Koontz did in fact "operate upon . . . an identified property interest," thereby bringing it within the IOLTA line of cases.  The "identified property interest" was, according to Alilto, the property that Koontz wanted to develop.  But this is confused.  The constitutional rights whose burdening the unconstitutional conditions doctrine is supposed to prohibit is (in the Nollan/Dolan context) the constitutional property right whose waiver the state is demanding in exchange for a development permit it does not have to grant.  

Alito switches the focus to the property subject to the discretionary benefit, but by that logic, any condition imposed as part of a land use permitting process (even one that would not, if imposed unilaterally, violate the constitution) triggers Nollan/Dolan.  Imagine, for example, an owner who owns two properties, one of which he wants to develop and the other of which is a public nuisance.  If the city demanded that the owner abate the nuisance in exchange for development permission, the demand would not seem to fall within the unconstitutional conditions doctrine, because the demand would be constitutional, even if imposed independently.  And yet, under Alito's logic, it would fall within Nollan/Dolan because it burdens the owner's interest in the property for which he seeks a development permit.  There may be sound reasons to police this kind of linkage, and most states do have doctrines to accomplish this, but the analysis is hard to square with the treatment of Nollan/Dolan as a species of unconstitutional conditions.  The oddness is only exacerbated by the fact that Nollan and Dolan (and Koontz) proceed on the assumption that the mere denial of the permit would not itself constitute a taking.  

By reaching to extend Nollan/Dolan in the way he does, Alito brings the permit application (rather than the demand) to center stage.  This could have a couple of consequences for takings doctrine.  One is to narrow Eastern Enterprises pretty significantly (or expand the reach of the Eastern Enterprises plurality, which supported the use of the takings clause in cases involving the obligations to pay money).  On Alito's reading, anytime the government obligates the payment of money in connection with the development of land, the five-justice position in Eastern Enterprises does not apply and a takings analysis is appropriate.  This would likely sweep in a number of measures that we would normally think of as taxes and that we might previously have seen as shielded from takings challenge.

Second, on Alito's logic, any condition that burdens the parcel for which the permit is sought might arguably come under the Nollan/Dolan test, even if neither the demand nor the permit denial would themselves constitute takings of property under the traditional tests, much less clear per se takings.  By reducing the barriers to entry into Nollan/Dolan analysis, Alito seems to create the possibility that, rather than merely serving as an unconstitutional conditions test in the takings context, the federal exactions doctrine is a separate, free-floating takings test.  

UPDATE: Tim Mulvaney posts his thoughts on Koontz here.  The consensus reaction seems to be that the case re-muddles (or further muddles or fails to clarify, depending on your baseline) takings doctrine. 

Posted by Eduardo Penalver on June 26, 2013 at 04:39 PM | Permalink | Comments (0) | TrackBack

What is Scalia talking about?

Justice Scalia spends the last part of his standing discussion in Windsor criticizing Justice Alito's separate dissent arguing that BLAG (although not the United States) had standing to appeal to the Second Circuit and to SCOTUS. Scalia argues that this opens the door to Congress suing the executive in federal court for declining to enforce federal law (or for enforcing it inadequately). Alito certainly does not say this or even imply it (at least on my reading of that part of his opinion, which I've now done five times). Does it necessarily follow from allowing Congress to defend a law when the President declines to do so? Scalia's vision is appealing: only the executive enforces and defends federal law and if he fails to do so, the law goes unenforced/undefended and Congress is left to non-litigation means (impeachment, cutting off funds, etc.) to persuade/cajole the President to act.

True, there administrative problems that could result if Congress can trump executive litigation/enforcement decisions with which it disagrees. But it seems to me that Alito's theory of standing is, at the federal level, precisely what the majority in Hollingsworth (written by Roberts, joined by Scalia) demands when the state executive declines to enforce or defend: BLAG is part of an elected body, part of the government, and subject to the popular and electoral check of The People. That same theory should work the same way at the federal level.

Posted by Howard Wasserman on June 26, 2013 at 03:37 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0) | TrackBack

Sex, morality, and relationships

Cynthia highlights Justice Kennedy's emphasis on DOMA's effect on children, particularly a sentence emphasizing how DOMA "humiliates" children of same-sex couples. But look at the immediately preceding sentence on p. 23: "The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558, and whose relationship the State has sought to dignify."

So the Constitution protects moral and sexual choices, but the State protects the relationship. Even though the relationship logically arises from those constitutionally protected moral and sexual choices. Is it logically possible to not take the next step to conclude that the Constitution also protects the relationship?

Posted by Howard Wasserman on June 26, 2013 at 02:45 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0) | TrackBack

Rights and Risk Aversion: Should the Left Embrace the Gift of Federalism on Marriage and Family?

Back in April, Linda Greenhouse warned liberals to "[b]eware of conservatives bearing gifts" -- in particular, the "gift" of "the discordant music of federalism" on marriage rights. According to Greenhouse, the SCOTUS's holding that the federal government cannot not discriminate against same-sex couples without reaching any conclusion about whether states could so discriminate "is a truly bad idea, and the campaign for marriage equality would be worse off for it." The reason is that "basic civil rights" should not vary state by state: They should be uniform throughout the land. Federalism is just a creepy-crawly thing that "tends to emerge from under the rocks in times of constitutional ferment, when the status quo is cracking and needs some propping up."

Well, now that Windsor has given us the gift of federalism with respect to Fifth Amendment rights, should the Left look a gift horse in the mouth? Or should they welcome a little federalism with respect to marriage and family matters? I think the answer to the question depends on risk aversion and discount rate. If you are a Lefty with a strong stomach for risk, then you should be no friend of federalism: You should favor the winner-take-all, high-stakes game of having the SCOTUS define "basic civil rights" in family matters in hopes that the votes will break your way. If you are a Lefty with a high discount rate, you will also discount future risks that a future SCOTUS will define "basic civil rights" in a conservative direction and try to nationalize your preferred definition of "basic civil rights" right now with the current Court and not worry about whether encouraging judicial creativity about nationalizing rights will injure your interests down the road.

I can understand why a high-stakes gambler with an impatient streak would disapprove of federalism with respect to family matters. What I cannot understand is why people like Greenhouse do not seem to appreciate that their urging of rights nationalism is a risky gamble for the causes in which they believe. Nothing in Greenhouse's column shows any awareness that a SCOTUS that felt empowered to define basic civil rights according to their moral lights would not do so in a way that might threaten "basic civil rights" according to Greenhouse's and others on the Left. It is one thing to roll the dice with full awareness that one is taking a risk. It is another thing altogether to do so blithely unaware that the dice could come up snake eyes.

How does federalism provide insurance for the risk-averse citizen, whether Left or Right? The answer, of course, is that, by reserving categories of topics for subnational resolution, federalism reduces the costs of the national government's being captured by one's opponents. Federalism performs this insurance function with basic civil rights as much as with any other topic, because basic civil rights can be a zero-sum game: One's opponents' view of rights might not only be different from, but also might actually violate, one's own conception of rights. Obvious examples come from abortion and religion: A broad definition of fetal rights violates broad definitions of women's rights to choose whether to give birth, while broad definition of free exercise rights violates a broad notion of rights to be free from establishments of religion. But less obvious examples can be drawn from many other contexts where the "Left" version of a right might be vindicated not by courts but by legislatures: Freedom of contract, for instance, can destroy a right to collective bargaining or a living wage.

That judicial creativity with rights can be risky for the Left is especially true with ethnoculturally sensitive issues like family and marriage like parental rights -- for instance, the rights of parents to home-educate their kids with minimal state supervision, the right of parents to administer corporal punishment to their children, the right of parents to stop the use of textbooks in K-12 schools celebrating views of sexuality with which the parents disagree, etc.

One possible response to the risk that the SCOTUS would vindicate these "conservative" rights is denial: One could argue that such conservative claims for such conservative rights are so obviously meritless that they will never prevail nationally before the SCOTUS. Such denial is, I think, the product of a high discount rate: Because SCOTUS is likely to reject such claims right now, one believes that SCOTUS will likely reject them further down the road. Such confidence is, I think, misplaced, as the gradually successful campaign in favor of Second Amendment rights indicates. (The Second Amendment is, by the way, one of those rights that, according to a capacious view of private rights to be free from violence, arguably violates a Left or at least Liberal conception of rights).

By repeatedly hammering home the idea that family and marriage are matters primarily for subnational resolution, opinions like Windsor reenforce a legal culture in which winner-take-all constitutionalism on extremely divisive matters by both the Left and Right is discouraged. It was precisely conservatives' leeriness about nationalizing marriage that led conservatives during the Bush Administration to take the laborious route of trying to outlaw same-sex marriage through a constitutional amendment rather than a federal statute. Indeed, some conservatives even opposed the anti-gay constitutional amendment itself on the theory that the spirit of federalism prohibited such a measure.

Federalism is indeed an ambiguous gift: Like any insurance policy, it exacts a costly "premium" in the form of not getting everything one wants at the national level right when one wants it. The Left should feel absolutely free to decline such insurance on the theory that they do not really need it, because the national government and federal courts will always be on their side.

But before they do, they should at least ask themselves the question: "Do I feel lucky?" And, if like myself, they are risk-averse enough to answer "not always," then they might want to accept that conservative gift of federalism insurance with a bit more enthusiasm.

Posted by Rick Hills on June 26, 2013 at 02:42 PM | Permalink | Comments (2) | TrackBack


The following is by my FIU colleague Alex Pearl, an Indian Law scholar and an enrolled member of the Chickasaw Nation of Oklahoma.

There are a lot of very good assessments of the Adoptive Couple v. Baby Girl decision, and I will not attempt to add to that thoughtful analysis of the holding.  Instead, I’d like to focus on a different aspect of the Court’s opinion, which is its misplaced and worrisome obsession with whether Veronica is Indian enough.  While not the stated basis for the Court’s decision, the repeated references to Veronica’s percentage of Cherokee ancestry display a misunderstanding of tribal citizenship laws and (ironically, given the Court’s color-blind bent) reinforce an inchoate racialization of Native people.  The Court’s message seems to be: if children like Veronica lack sufficient “Indian blood,” they do not warrant the legal protections that their political status as American Indian tribal members otherwise affords.

 What’s in a number?  More than you would think.  Justice Alito began his majority opinion with this statement: “[t]his case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee.” Thankfully, the Court references Baby Veronica’s blood quantum by BOTH fraction and percentile for those math challenged readers.  This has the effect of attempting to reiterate that Baby Veronica really isn’t that much of an Indian, so this isn’t really that big of a deal. Under Cherokee membership requirements, Veronica’s so-called blood quantum is irrelevant, however.  The only thing that matters is whether she descends from an ancestor on the Cherokee Nation’s Dawes Roles.  Justice Alito later acknowledges this, referencing Baby Veronica’s “remote ancestor” which, again, attempts to delegitimize her Indian-ness. 

However, Baby Veronica’s actual quantum of blood is simply irrelevant, which Justice Sotomayor points out in her vigorous dissent. (slip op. at 23-24).  The plain fact, which the Majority gets wrong, is that Baby Veronica is a Cherokee Indian—no matter the extent to which this fact challenges their own personal notions of who an Indian is and what an Indian looks like.  She is a citizen of the Cherokee Nation.  Her citizenship in the Cherokee Nation is not up for debate, diminution, or question.  Indeed, this is one of the many purposes of the Indian Child Welfare Act, to prevent non-Indians from making these types of judgments about who is/isn’t/might be/looks like an Indian.

The Majority’s statement about the “low” percentage of blood attempts to make more palatable the idea of this Cherokee girl facing a likely increased difficulty in connecting with her tribal culture and tribal family.  I say “likely” because my sincere hope is that wherever Baby Veronica is, she be given the opportunity to connect with her Cherokee community and engage with Cherokee culture. But, this is difficult because engaging with one’s tribal community culture, I’ll generalize briefly here, entails interaction with family.  The presumptive adoptive parents may not be inclined to encourage Baby Veronica’s connection to her biological father’s family. This, I might add, was a fundamental purpose of the Indian Child Welfare Act—to protect tribal culture. This is perhaps another benefit of the Majority’s use of “3/256,” to try and differentiate the statute’s purpose—protecting Indian children and tribal culture—from the facts of the current case, i.e. Baby Veronica isn’t really an Indian.

Baby Veronica is, or is eligible for, enrollment as a citizen of the Cherokee Nation of Oklahoma.  By the way, the Cherokee Nation isn’t like your local public library—not just anyone can join.  It’s like the United States.  Not everyone can join us here—the U.S. has citizenship requirements.  It would be unintelligible to say that someone is 3/256 American, right?  You either are or are not a citizen of a nation.  The usage of blood quantum in this way by the Majority conflates Indian identity and tribal citizenship.  Scholars of all types (legal, humanities, and social sciences) continue to grapple with these concepts and recognize the entanglement of the racial and political.  An example might help. 

Some individuals may have a parent enrolled as a tribal citizen but the Tribe’s citizenship criteria may be such that the child is not eligible for citizenship. Nonetheless, the non-citizen child lives in the tribal community, participates in cultural activity, and is by all accounts a member of the tribal community.  The child identifies as an Indian, but is not a tribal citizen.  This is not that radical of an idea.  There are thousands of people in this country that recognize their underlying national heritage (speak the language, celebrate the national holidays, etc) but are not eligible for citizenship in that country. I fully concede that this is an easy error to make.  Furthermore, Indian identity politics, tribal enrollment (and disenrollment) issues, and indigenous citizenship are extraordinarily complex and extremely sensitive.  Professor Sarah Krakoff has an excellent article out that gives these concepts far better treatment than I have done here. These complexities, however, provide all the more reason for the Court to avoid becoming (needlessly) embroiled in them while perpetuating misconceptions about Indians.I make these observations to point out that there remains a fundamental and likely widespread misunderstanding, or innocent ignorance, of Indian-ness.

As I said above, there are racial and political components to current conceptions of Indian tribes and tribal member.  This problem will continue to impair tribal performance in the courts on issues like this in the future.  Until people stop conjuring up images of Johnny Depp as Tonto (opens July 3rd!) or the Washington Redskins when they hear the word “Indian,” this isn’t going to change. I promise--this is not an anti-Indian mascot post.   But I do believe that the recent attention given to the Washington Redskins logo and trademark illustrates the larger problem regarding misconceptions about Indian identity and tribal communities. The issues with the imagery of Tonto, the Redskins, and the Majority’s emphasis of Baby Veronica’s blood quantum are all manifestations of these misconceptions and continue to harm Native people.

I’ll end on this brief personal note.  I’m an enrolled member of the Chickasaw Nation of Oklahoma, and grew up in Oklahoma.  I have two young children and my hope is that they encounter the statement, “you don’t look Indian,” less than I did.  That statement questions a person’s Indian-ness in the exact same way the Majority utilizes Baby Veronica’s blood quantum to delegitimize her status as an Indian. If they hear that less, it means we are moving in the right direction. The continuing misconceptions about Indian-ness are not going to go away anytime soon. But, I think that open discussions about the issues are essential to reform—even if we don’t have the right answers yet.  Such a process yields benefits to everyone, Indians and non-Indians alike.

Posted by Howard Wasserman on June 26, 2013 at 02:35 PM in Howard Wasserman, Law and Politics | Permalink | Comments (9) | TrackBack

AMK's adverb avoidance

Way back in the Disco years, when I was a law clerk, there was an ongoing joke going around that Justice Kennedy really didn't like adverbs of the "-ly" variety, that he would go to some lengths to avoid using them, and that his clerks sometimes have fun trying to sneak them past him.  So, I had to smile at this line from his Perry dissent --  "Those errors necessitate this respectful dissent" -- and this one:  "These are the premises for this respectful dissent."  (Ed.:  That's the best you can do for commentary on today's cases?  Lame.)

Posted by Rick Garnett on June 26, 2013 at 02:08 PM in Rick Garnett | Permalink | Comments (1) | TrackBack

Federalism and DOMA

I've already seen some confusion about whether it's fair to describe Justice Kennedy's opinion in Windsor as relying on "federalism." Compare, for example, the majority opinion ("it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism") with the Chief Justice's dissent ("I think the majority goes off course, as I have said, but it is undeniable that its judgment is based on federalism.") with Scalia's ("Even after the opinion has formally disclaimed reliance upon principles of federalism, mentions of the 'usual tradition of recognizing and accepting state definitions of marriage' continue.  What to make of this?").

It seems to me that the answer is: Windsor is an equal protection decision to which federalism is relevant, both because it shores up the interest on Windsor's side and it diminishes or eliminates many of the interests on the federal government's side.  In this way, Kennedy's opinion is in keeping with Judge Boudin's opinion for the First Circuit in Gill, which did something similar, and is like the arguments I discuss at the beginning of my DOMA article.

The confusion arises from some terminological confusion that began at oral argument.  One "federalism" argument was the one that Kennedy and Boudin subscribe to-- that federalism influences the strength of the equal protection claim.  But there was also a very different federalism argument made in an amicus brief for Ernie Young and other federalism scholars-- that DOMA is unconstitutional as a matter of enumerated powers and state sovereignty, independent of the discrimination issue.  That question, Justice Kennedy declines to speak to. ("It is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance.").

One other thing while I'm at it.  Today's scenario -- DOMA unconstitutional, state laws intact for now -- means that same-sex couples and the federal government now have to confront a series of complicated and difficult choice of law questions (as Justice Scalia points out in dissent, and as I wrote about last year).  The immediate consequences will depend a lot on what the executive branch does (and especially whether it tries to coordinate its agencies' different positions on choice of marriage law) and how the courts react.  As Justice Kennedy said in explaining why the Court needed to decide this case:

The district courts in 94 districts throughout the Nation would be without precedential guidance not only in tax refund suits but also in cases involving the whole of DOMA’s sweep involving over 1,000 federal statutes and a myriad of federal regulations. ... Rights and privileges of hundreds of thousands of persons would be adversely affected ...; the cost in judicial resources and expense of litigation for all persons adversely affected would be immense. ... the costs, uncertainties, and alleged harm and injuries likely would continue for a time measured in years before the issue is resolved.

The same could be said about the undecided choice of law issues. That said, it's still not too late for Congress to repeal DOMA and replace it with a choice of law rule. And perhaps the administration has a plan for how to deal with the fallout.  Otherwise, it's about to become a lot more interesting to be a choice of law scholar.

Posted by Will Baude on June 26, 2013 at 01:45 PM in Civil Procedure, Constitutional thoughts, Judicial Process | Permalink | Comments (4) | TrackBack

Windsor/Perry and Marriage/Parenthood

So, the same-sex marriage cases came out as they were widely predicted to do -- the Court struck down DOMA and punted on the larger question of whether there is a constitutional right to same sex marriage.  It is a big contrast to yesterday's family law decision--see below for my post on the Baby Veronica case -- in that I was virtually certain what the Court was going to do, but am excited anyway! So marriage equality will proceed state by state. 

What is most interesting to me is the relationship between parenthood and marriage, both before and after this decision. I wrote about this for the Huffington Post a couple of days ago. And I'm not surprised that one of the most strongly worded parts of Justice Kennedy's opinion in Windsor deals with children--noting that DOMA "humiliates tens of thousands of children now being raised by same-sex couples. . .mak[ing] it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families..." (page 23).

PS , as a former impact litigator with some experience choosing and working with plaintiffs, I cannot get over what a fantastically charismatic plaintiff Edie Windsor is--see her reaction to the decision).

Posted by Cynthia Godsoe on June 26, 2013 at 01:12 PM | Permalink | Comments (0) | TrackBack

Windsor and the states' power to define federal constitutional rights: Does Kennedy revive Justice Harlan's Theory of Rights?

For federalism fans, the most interesting aspect of Windsor is its recognition that state law can define, at least in part, the scope of federal constitutional rights by (for instance) defining what constitutes an arbitrary classification under the Fifth Amendment's Due Process clause. On this theory, the feds are more constrained by national constitutional rights than are the states, because individual states can go different ways in deciding whether a particular classification is arbitrary in ways foreclosed to the feds, "opting out," as it were from the right that the feds must honor.

Such a position is not novel: The patron saint of this point of view was Justice Harlan the Younger, who repeatedly invoked the idea that rights against the federal government ought to be construed more broadly than analogous rights against the state governments. The Court in MacDonald v. City of Chicago specifically asserted that "[t]ime and again, [Harlan's] pleas failed" to win support from the Court. But did Harlan's ghost smile today, because Windsor vindicated his view?

Hints of Harlan's theory that states get special latitude to define national rights have been cropping up in a variety of opinions. It is a familiar principle that state law helps determine the scope of what's an "unusual" punishment under the Eighth Amendment, and state law determines in part what counts as an "actual injury" sufficient to support Article III standing in Newdow and Massachusetts v. EPA. State law also plays a major role in defining "property" under both the procedural aspect of the Due Process clause and the Just Compensation clause, and, of course, SCOTUS likes to "count states' in defining substantive due process rights. In declaring states' "historic and essential authority to define the marital relation" can define "the recognition, dignity, and protection of the class in their own community," thereby transforming the classification in section 3 of DOMA into an "unusual deviation from the usual tradition" that therefore deprives couples recognized as married by state law of Fifth Amendment due process (Slip opinion at 14, 20-21), Windsor fits within this longstanding idea that subnational law can influence the scope of federal rights. (Kudos to Ernie Young for his amicus brief, cited at page 23 of Kennedy's opinion: That brief's fingerprints ideas and rhetoric of that brief seem to be all over the majority opinion).

Although state law's role in defining federal rights is nothing new, that role is constantly embattled, because it offends what I have called "rights fundamentalism" -- the notion that, because a right is very important, the right must be defined uniformly across jurisdictions. McDonald v City of Chicago invoked this idea in holding that the Fourteenth Amendment's incorporation of the Second Amendment must be enforced against the states just as the actual Second Amendment is enforced against the feds.

I suspect that "rights fundamentalism" -- the notion that national rights must be uniformly defined across the continent and cannot be affected by state borders or laws -- led to some muddled language in the majority opinion. That opinion made the odd assertion that “it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution” because “[t]he State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism” (Slip opinion at 18). Of course, the majority opinion is specifically using "principles of federalism" to define the scope of Fifth Amendment rights, making Kennedy's statement seem perplexing. Justice Scalia's dissent exploited this statement's oddity to gibe that the majority was "fooling many readers, I am sure, into thinking that this is a federalism opinion" by invoking states' traditional role over marriage even while simultaneously disavowing reliance on federalism (Slip opinion at 15).

The oddity of the majority's statement about the irrelevance of the "principles of federalism" vanishes, however, if one substitutes the "doctrine of enumerated powers" for "principles of federalism." That the majority opinion would conflate these two different concepts is not surprising when one recalls the prevalence of the notion, reflected in decisions like McDonald, that national rights and federalism just do not mix.

There is no good reason for such a confined notion of "principles of federalism." As Justice Harlan argued, principles of federalism have relevance beyond construing Congress' enumerated powers: Such principles can properly lead to a broad reading of rights exclusively against the federal government just as they can lead to a narrow reading of rights against the state governments. Only a (to my mind) misguided notion of "rights fundamentalism" keeps judges and scholars and laypeople from accepting this notion that forcing the states and the feds to follow the same one-size-fits-all definition of rights has costs not only for federalism but also for individual liberty and equality. The SCOTUS's actions reflect this Harlan-esque truth: Maybe their rhetoric should follow suit.

Posted by Rick Hills on June 26, 2013 at 11:51 AM | Permalink | Comments (2) | TrackBack

Initial Hollingsworth question

Many people are going to be talking about the line-up in Hollingsworth: The Chief was joined by Scalia, Ginsburg, Breyer, and Kagan in saying no standing. Justice Kennedy, joined by Thomas, Alito, and Sotomayor, argued the proponents had standing, although without subsequently discussing the merits, which seems highly unusual. (Does anyone know how often that happens, that in a case dismissed on jurisdictional grounds, the dissent will insist there is jurisdiction, but then not reach the merits?)

Update: Some readers suggested past standing cases to look at and it appears that it is common practice for the dissenters not to reach the merits, even if they would have found standing. One exception is Justice Stevens' dissent in Raines v. Byrd, although he announced his view of the merits in one sentence that largely tied the merits to standing. In a separate dissent in that case, Justice Breyer espressly declined to discuss the merits because the majority had not discussed the merits and he chose to "reserve" his views for future argument. I still believe there is a nice normative question of whether that is how dissenters should approach cases, but I will reserve that for future days.

So what happened internally? Assuming that Ginsburg, Breyer, Sotomayor, and Kagan all would find marriage equality required by the Fourteenth Amendment and since Kennedy agreed there was standing, why wouldn't those five join to invalidate Prop 8 on the merits? Was Kennedy not willing or ready to go along? Could they not agree on a rationale? Am I falling into the trap of making every justice results-oriented and not giving Ginsburg, Breyer, and Kagan credit for genuinely being troubled by the Article III concerns?

Posted by Howard Wasserman on June 26, 2013 at 10:51 AM in Howard Wasserman, Law and Politics | Permalink | Comments (8) | TrackBack

DOMA violates Fifth Amendment

Windsor (Kennedy for 5; Roberts, Scalia, Thomas, Alito dissent). Waiting on Hollingsworth, although language from the Roberts dissent in Windsor indicates that case dismissed on standing grounds.

Update: Yep--Petitioners in Hollingsworth lacked standing to appeal the district court decision. Roberts for five; Kennedy dissents, joined by Thomas, Alito, and Sotomayor.

More later.

Posted by Howard Wasserman on June 26, 2013 at 10:20 AM in Howard Wasserman, Law and Politics | Permalink | Comments (0) | TrackBack

Tuesday, June 25, 2013

Shelby County Highlights

The Chief writes well and clearly.  For those of you who have not yet had time to read Shelby County, but would like a little taste of the key passages:

  • "Under [Respondents'] theory, however, §5 would be effectively immune from scrutiny; no matter how 'clean' the record of covered jurisdictions, the argument could always bemade that it was deterrence that accounted for the good behavior."
  • "It was in the South that slavery was upheld by law until uprooted by the Civil War, that the reign of Jim Crow denied African-Americans the most basic freedoms, and that state and local governments worked tirelessly to disenfranchise citizens on the basis of race. The Court invoked that history—rightly so—in sustaining the disparate coverage of the Voting Rights Act in 1966. . . . But history did not end in 1965."
  • "The [Fifteenth] Amendment is not designed to punish for the past; its purpose is to ensure a better future."
  • "Regardless of how to look at the record, however, no one can fairly say that it shows anything approaching the 'pervasive,' 'flagrant,' 'widespread,' and 'rampant' discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the Nation at that time."
  • "Viewing the preclearance requirements as targeting [second generation barriers] simply highlights the irrationality of continued reliance on the §4 coverage formula, which is based on voting tests and access to the ballot, not vote-dilution."
  • "[T]his case is about a part of [McCulloch] that the dissent does not emphasize—the part that asks whether a legislative means is 'consist[ent] with the letter and spirit of the constitution.'"
  • "[F]our years ago, in an opinion joined by two of today’s dissenters, the Court expressly stated that '[t]he Act’s preclearance requirement and its coverage formula raise serious constitutionalquestions.' The dissent does not explain how those 'serious constitutional questions' became untenable in four short years."
  • "[I]n [Northwest Austin], we expressed our broader concerns about the constitutionality of the Act. Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice but to declare §4(b) unconstitutional."

Posted by Will Baude on June 25, 2013 at 05:30 PM in Constitutional thoughts | Permalink | Comments (3) | TrackBack

Koontz's Unintelligible Takings Rule: Can Remedial Equivocation save the Court from a Doctrinal Quagmire?

Federal takings doctrine is the jurisprudential equivalent of a land war in Asia -- a quagmire from which any aggressive initial expedition will eventually have to extricate itself with patently phoney declaration that the mission was accomplished after being bogged down in the swamps and rice paddies of mushy doctrinal distinctions and sniped at by local government guerrillas too elusive to pin down in open battle. Every once in awhile, the SCOTUS attempts one of these invasions of subnational governments' land-use prerogatives, invariably to retreat in disarray when it discovers that (a) it does not understand the legal terrain and (b) its district court foot soldiers balk at getting involved in what Justice Sutherland once called the "tedious and minute detail" of land-use law's implementation. (Examples of such embarrassed retreats include Louisville & Nashville Ry. v. Barber Asphalt Paving (1906) and San Remo Hotel v. San Francisco (2005))

The Court's decision in Koontz v. St. Johns River Water Management District, handed down this morning, seems like yet another data point confirming the story above: The idea that the Court will enlist federal courts to duplicate the work of state courts in policing conditions on literally hundreds of thousands of land-use permits, as suggested by Justice Alito, seems laughable, because the feds lack the manpower and electoral legitimacy to pull off such an act of imperialism. Thankfully, as I explain after the jump, Koontz carefully preserves a convenient albeit disingenuous "remedial" exit strategy that should insure that the decision is a dead letter.

1. First, why do I say that serious enforcement of Nollan-Dolan against a broad range of conditions on land-use development would lead to a quagmire? The Court declared that a demand on a developer to improve some off-site culverts is covered by the Nollan/Dolan line of cases, thereby embarking on what looks to be a futile effort to police the literally hundreds of thousands of conditional permissions for land development from roughly 35,000 general purpose local governments. Justice Alito tried to cheer us up by asserting that "teasing out the difference between taxes and takings is more difficult in theory than in practice" (Slip Op. at 19). But the very form of this encouragement suggests that SCOTUS either does not know what it is getting into or is being disingenuous about the burden that it is assuming: The problem is not merely distinguishing taxes from takings but also distinguishing all other routine conditions on land-use permits (e.g., obligations to build affordable housing, finance public plazas, bank wetlands, hire local folks for construction jobs, improve subway stops, etc.) that are the routine currency of conditional map amendments, conditional use permits, variances, PUD approvals, and the like. The notion that the federal courts will apply the Nollan-Dolan "rough proportionality" test to all of these conditions seems patently unrealistic -- but where will the courts draw the line, now that they have held that an obligation to finance off-site culverts is covered by the federal doctrine?

Ilya Somin over at Volokh's claims that Justice Alito "deals effectively with this argument [that the federal courts are over-extending themselves] by "noting ... that the rule adopted by the majority is already the law in many states, yet the sky has not fallen there." But Ilya and Justice Alito both beg the central question of federalizing land-use law by using state courts as a model for federal judicial behavior. The problem with the feds is that they lack the decentralized flexibility and democratic legitimacy to mimic state courts' behavior. State courts can adopt different decentralized solutions reflecting regional differences in political culture: The feds cannot. Some state courts -- Pennsylvania and Washington, for instance -- tend to be more aggressive in policing local regulation. Some, like New York and New Jersey, are much more lax. Each courts' capacity to crack down on municipalities depends critically on the signals of political support that they get from their relevant constituencies through amendments to the state constitution, zoning enabling acts, and state judicial elections. The federal judges are obliged to aspire towards a one-size-fits-all solution without any electoral feedback mechanism. It is precisely because the state courts have the situation under control (or as under control as such a situation can be) that the feds should butt out. To use the land-war-in-Asia analogy, just because the Iraqi police can handle street patrols in Baghdad does not mean that the U.S. Marines should try to do so as well.

3. So how will the federal courts eventually exit this quagmire? The answer might be remedial equivocation. Nollan-Dolan has so far mostly been a dead letter in zoning litigation, because the remedy in lower courts has usually (although not universally) been restoration of the pre-exaction status quo in which the developer is unconditionally denied the desired permission to build. (See Goss v. City of Little Rock, (8th Cir. 1996), for an example of how this remedy guts the right, or read Mark Fenster's Failed Exactions). Such a remedy means that developers will rarely sue, and the ones that do sue get nothing for their troubles. Koontz did nothing to disturb this remedial equivocation, declaring that "[b]ecause petitioner brought his claim pursuant to a state law cause of action,the Court has no occasion to discuss what remedies might be available for a Nollan/Dolan unconstitutional conditions violation either here or in other cases" (Slip op. at 11).

This may be the most important sentence in the opinion -- a hint at the SCOTUS's "exit strategy" when developers start challenging plazas, parks, playgrounds, and the like. San Remo Hotel v. San Francisco severely limits developers' power to bring a federal takings claim in federal court: If state courts can continue to define the Nollan-Dolan remedy as invalidation of the illegal condition and denial of the zoning permission, then Koontz will be a practical dead letter. And a good thing, too, if one cares about federalism and believes, as I do, that Nollan-Dolan was always a quixotic expedition to control land-use decisions far too numerous and fact-specific to be amenable to federal judicial policing.

Posted by Rick Hills on June 25, 2013 at 03:41 PM | Permalink | Comments (8) | TrackBack

The Voting Rights Act is Dead. Long Live the Voting Rights Act!

Well, so much for strategic compromise.  The Supreme Court ruled this morning, along ideological lines in a 5-4 decision, to invalidate a key provision of the Voting Rights Act.

The funny (or sad) thing is, Chief Justice Roberts likely thought he was taking a narrower approach, because the majority opinion he authored invalidates Section 4, the coverage formula, as opposed to Section 5, the preclearance provision.  The majority ruled that Section 5, which requires preclearance, is constitutional in theory, but that the coverage formula used in Section 4 is unconstitutional.  This approach, on its face, is seemingly narrower than striking down all of Section 5.  Indeed, Justice Thomas concurred specifically to argue that the Court also should have gone further and invalidated Section 5. 

But Chief Justice Roberts surely knows that Congress is extremely unlikely to Act in updating the coverage formula.  Make no mistake:  killing Section 4 has the effect of killing Section 5 as well. 

The Chief had other options.  Justice Ginsburg, in her dissent, mentioned the facial versus as-applied distinction that I identified yesterday, noting that facial challenges are disfavored.  (Come on, Justice Ginsburg – no citation to me?  Where’s the love?)  Chief Justice Roberts barely responded in his opinion. 

So although the Chief Justice might have thought he was being crafty in narrowing the opinion to focus on the coverage formula, the reality is that his opinion takes away a significant and major component of voting rights protection.  Section 5 of the Voting Rights Act had a great life, helping to equalize voting access in the places that most resisted integration.  As Justice Ginsburg noted, “Just as buildings in California have a greater need to be earthquake­proofed, places where there is greater racial polarization in voting have a greater need for prophylactic measures to prevent purposeful race discrimination.”  The ball is now in Congress's court to revive this important provision.  Will it find a way to pass an updated coverage formula so that the Voting Rights Act can live on? Protecting the right to vote for all Americans demands that it does. 

Posted by Josh Douglas on June 25, 2013 at 03:39 PM | Permalink | Comments (3) | TrackBack

"Baby Veronica" Decision and Language in Supreme Court Opinions

The Court decided the 'other' family law case from its docket this year. The case centers on the Indian Child Welfare Act (ICWA) and fatherhood. The 5-4 majority decided to return the child, now 3 1/2 years old, to her adoptive parents. (An aside--the majority includes both Justice Roberts, who adopted children, and Justice Thomas, who raised children not his own, although I'm not sure if he actually adopted them).

This is not a clear cut case. Certainly among the family law scholars' community it was open to much more debate than the same-sex marriage cases. For an excellent discussion by a range of expertsat the time of the oral arguments, see FamilyinLaw blog.

On the one hand, there are the interests of the child, Veronica, who lived with the (white) adoptive parents from her birth for over 2 years. The mother here, who is not Indian, placed the child for adoption at birth; the father, who is part Cherokee, was not notified for about four months. There is also the concern that prospective adoptive parents will be deterred if we allow adoptions to be reversed/blocked when well under way.  Justice Alito, writing for the majority, flags that concern on page 16 of the opinion. On the other hand, there is the history underlying ICWA which builds in extra protections for Indian families and tribes, based on the egregious, and shockingly recent, history of taking Indian children from their homes and communities and placing them in white families or boarding schools with no real process. There is also concern over parental rights, which Scalia raises in his dissent, particularly of unwed fathers who often get short shrift. Here, the child has lived with her father for almost 2 years, after she was returned to him by the South Carolina Supreme Court. There are no allegations that he is unfit in any way.

The majority opinion, however, does an injustice to these weighty issues. First, although acknowledging (in a footnote, natch) that Veronica qualifies as an "Indian child" under the statute, Justice Alito begins his opinion with the line: "This case is about a little girl who is classified as an Indian because she is 1.2% (3/256) Cherokee." No one is challenging that classification, but this opening line makes apparent what the Justice thinks of tribal membership and relatedly family ties. He then goes on to justify the decision to return Veronica to her adoptive parents by interpreting two statutory terms "continued custody" and "breakup." The dissents, particularly Justice Sotomayor's (26 pages to the majority's 17) point out that "literalness may strangle meaning." More importantly, Sotomayor's dissent actually tries to grapple with the difficult issues of family, parenthood and adoption raised by this case.

I wasn't sure how I felt about this case for a long time. For this reason, I declined to sign on to an amicus brief. After oral arguments, I tentatively decided that I thought Veronica should remain with her father. But it did not raise the strong feelings I have as to other family law cases, such as the same-sex marriage cases. Nonetheless, Alito's opinion is leaving me somewhat outraged. The snide tone and glib use of dictionary definitions undercuts the reality of the issues involved.

The saddest thing about this case is that there is no way to, forgive me, "split the baby." Open adoption and the parsing out of parental rights is still too rare. Family law in many instances has to catch up with reality, in which many adults other than legal parents play a significant role in a child's life, and where parenthood is not capped at two.  (I blogged about the numbers issue last year). Opinions focusing myopically on three words and ignoring the emotions and experiences of the parties involved only perpetuate this unfortunate disconnect between the law and reality.

Posted by Cynthia Godsoe on June 25, 2013 at 02:41 PM | Permalink | Comments (3) | TrackBack

Monday, June 24, 2013

Strategic Compromise on the Supreme Court

We may be at the height of strategic compromise at the Supreme Court.  Justices are tempering their likely ideological views to reach consensus on broader issues, trying to maintain the integrity of the institution in the process.  It happened today in Fisher, the affirmative action case, and it is quite possible that we will see this judicial tactic repeat itself throughout the week in the Court’s other most significant cases, on the Voting Rights Act and gay marriage.

This morning, the Court ruled, 7-1 (Justice Kagan was recused), to send the biggest affirmative action case in several years, Fisher v. University of Texas, back to the Fifth Circuit.  In doing so, it agreed that considering race as one factor in college admission decisions is permissible, but it told the Fifth Circuit to consider the plan under a stricter standard of review to determine whether the University “narrowly tailored” its program.  This was classic strategic compromise:  the conservative Justices, who normally would have ruled that all affirmative action programs are unconstitutional, agreed with the result because it narrowed the scope and reach of affirmative action.  The liberal Justices, who likely would uphold most affirmative action plans, went along because the decision maintained the ability of universities to consider race as one factor in their admission decisions, even if affirmative action lives on in a narrower form.  Neither side achieved all of its goals, as the opinion has something for everyone:  a statement sanctioning affirmative action in theory but requiring those programs to be as narrow in scope as possible.  Both sides of the Court used strategic compromise to ward off the likely more extreme approaches of the other side.  The Court as a whole comes out looking better in the process.

Just as many worried that Fisher would spell the end of affirmative action in college admissions, most observers believe that Section 5 of the Voting Rights Act is in peril in Shelby County, which the Court will also decide this week.  The question is whether Congress may require certain “covered jurisdictions,” which are mostly in the South and have a history of racial discrimination, to seek preapproval, or “preclearance,” before making any change in their election machinery.  Section 5 is intended to forestall the worst abuses in racial discrimination in voting before states and local jurisdictions can implement them.  Strategic compromise saved Section 5 just a few years ago, when the Court used a tortured statutory analysis to punt on the constitutional question.  That question is now squarely before the Court in Shelby County.  But the Court could well use strategic compromise again to issue a more nuanced opinion, leaving Section 5 largely intact but narrowing its scope.  The plaintiffs in Shelby County brought a “facial” challenge to Section 5, saying that it is unconstitutional in all of its applications, but as I have recounted elsewhere, the Court has shifted to requiring only as-applied challenges in election law litigation.  The Court could similarly reject the facial challenge in Shelby County but remand for the lower court to consider an as-applied challenge should the plaintiffs wish to amend their complaint.  The plaintiffs would then have to prove why, regarding their specific circumstances, they should not be required to submit all election changes for preclearance under the Act.  The Court could give teeth to an as-applied constitutional challenge to a jurisdiction falling under the coverage formula, even if that jurisdiction cannot meet the statutory “bail out” requirements of the Act.  This would once again demonstrate strategic compromise:  the liberals would agree because the ruling would maintain Section 5 of the Voting Rights Act as a tool Congress can use to root out racism in election administration; the conservatives would go along because it would provide another “way out” (in addition to the statutory “bail out” mechanism) for jurisdictions that prove they are no longer discriminating in their voting process.  This approach is more tempered then either side probably would like, as it maintains but narrows the reach of Section 5.  But it takes the Court out of making what otherwise would seem like a political decision either way.

Finally, the Court could use strategic compromise in the same-sex marriage cases.  In both cases there is a significant question of standing – whether the plaintiffs are the proper parties to bring these suits.  The case involving California’s Proposition 8 is probably the more significant of the two given that the decision could sanction gay marriage for the entire country.  But if each side of the Court engages in strategic compromise, it might punt on the constitutional issue by ruling that the plaintiffs do not have standing to appeal the lower courts’ decisions.  This would in effect uphold the lower courts’ ruling that Prop 8, which banned same-sex marriage, is unconstitutional, but it would only affect California.  The question of gay marriage in the rest of the country would remain open to resolve on a state-by-state basis.  To be sure, when the Court decided to hear the case it was well aware of the standing issues, but in the process of negotiating the language of the opinions the Justices might have realized that a more nuanced approach would be better for the Court and the country.  The liberals would go along with this judicial “punt” to avoid a ruling that a state can ban same-sex marriage; the conservatives might agree to avoid a ruling that gay marriage is a constitutional right for the entire country. 

The Roberts Court has exhibited strategic compromise before, most notably in last year’s health care case.  Chief Justice Roberts wrote an opinion that upheld “Obamacare” under a tax theory but curtailed Congress’s Commerce Clause authority.  In some ways, neither side fully liked the decision:  the liberals were able to uphold President Obama’s signature legislation but had to swallow the Commerce Clause analysis; the conservatives lost the battle on the health care law itself but achieved a narrowing of Commerce Clause jurisprudence.  And the Court stayed out of the political fray, at least in the public’s view. 

Ever since Bush v. Gore the Supreme Court has been extremely cognizant of its institutional standing, particularly after John Roberts became the Chief.  By invoking strategic compromise and cajoling his colleagues on both sides to give a little, he can avoid decisions that are too far-reaching either way.  Neither side may be completely happy, but both achieve some success.  The Court could similarly use strategic compromise in both the Voting Rights Act case and the gay marriage cases – which are the decisions the public is paying attention to the most.  In the process, the Court will avoid groundbreaking, political-sounding decisions, and will improve its standing as the apolitical branch of government.

The legacy of the Roberts Court may be one of strategic compromise.  We will know in a few short days.

Posted by Josh Douglas on June 24, 2013 at 07:06 PM | Permalink | Comments (0) | TrackBack

So Where WAS Fisher Anyway?

Two weeks ago I posted some hypotheses about why it was taking the Supreme Court such an unusually long time to publish the opinion in Fisher v. Texas, its last October case.  Now that the opinion is out, we have some good reason to think that all of my hypotheses -- at least when I got down to specifics -- were wrong.

1:  I suggested a "very long" majority and a "very long" lead dissent.  Well, Justice Kennedy's majority opinion is 13 pages; the dissent is 4.  So much for that theory.

2: I suggested that there had been some kind of major "flip" in the case -- in particular that "Justice Kennedy initially decided to invalidate Texas's program but has now decided to uphold it (I doubt it), or that Justice Kennedy had initially decided to preserve Grutter but has now decided to overrule it."  But no, the final opinion invalidates Texas's program the Fifth Circuit's opinion on the narrow, Grutter-based grounds I had expected all along. [EDIT: Thanks for the correction, Micah!]

3:  I suggested that another justice might have written a long concurring opinion getting into a nasty back-and-forth with the lead dissent.  But Justice Ginsburg's lone dissent is only four pages long, and it did not provoke substantial writing from anybody.

4:  Finally, I suggested that Justice Thomas might write a long concurring opinion getting into the original meaning of the 14th Amendment and finally providing a judicial explanation for how the colorblindness rule that Scalia and Thomas subscribe to (and sometimes derive from Brown) can be squared with the original history of the 14th Amendment. 

This one came the closest -- Justice Thomas did write a long concurring opinion -- but it's not nearly long enough to explain the unusual delay, and even more puzzlingly, it doesn't discuss originalism in any serious detail.  There's a brief mention of slavery, and otherwise all of the originalist heavy lifting is delegated to a page-long discussion of the Iowa Supreme Court's previously obscure 1866 decision in Clark v. Board of Directors.  (The case is cited in the briefs and Brown and Sweatt, which is probably how it made its way into the concurrence, although it is also cited in Michael McConnell's Originalism and the Desegregation Decisions and Chris Green's Originalism and the Sense-Reference Distinction, either of which I could imagine Justice Thomas's reading.)

So what did happen?  Obviously my own reliability at guessing is subject to serious question.  But my new guess is that there was a long struggle to get five Justices to join a single opinion.  From Justice Scalia's and Thomas's concurrences, I wouldn't be surprised if they initially refused to join an opinion that seemed to reaffirm Grutter.  At the same time, I wouldn't be surprised if Justices Breyer and Sotomayor initially refused to join an opinion that seemed to narrow Grutter. 

Justice Kennedy could have simply written an opinion for 3 and relied on the Marks Rule to make it the controlling precedent for lower courts, but there's something unsatisfying about that, especially in a high-profile case.  So maybe he had to spend a while trying to get two more votes from either his right flank or left flank (and ultimately got more than he needed by writing a short and relatively unobjectionable opinion).  There's plenty about this theory that I haven't fully fleshed out, but that's my new best guess, since I doubt it took eight months for Justice Thomas to write 20 pages.  But obviously you shouldn't take my word for it!

Posted by Will Baude on June 24, 2013 at 03:26 PM in Constitutional thoughts, Judicial Process, Life of Law Schools | Permalink | Comments (10) | TrackBack

A Zombie in the Wild

I have long thought fairly highly of the Atlantic, both as a magazine and as a blog. So the following article by Richard Gunderman1 is disheartening to read. It is a perfect example of the very zombie I am trying so hard to kill: the "Standard Story" that unquestioningly accepts the generally-incorrect conventional explanations without (for obvious reasons) providing data to back them up. So I thought I'd spend this post attacking it point by point, just so it is clear how deeply flawed the conventional story is, and to highlight the dubious arguments that are so often made in favor of it.

Gunderman starts with the standard it-isn't-crime explanation:

Why have U.S. incarceration rates skyrocketed? The answer is not rising crime rates. In fact, crime rates have actually dropped by more than a quarter over the past 40 years.

His statement that crime has dropped by 25% over 40 years is wrong in several ways. As the graph below (taken from here) shows, crime has only been dropped since 1991, which is 24 years ago. Between 1974 (that's 40 years ago) and 2011 (the last year for which the FBI has data), violent crime has risen by 23%, and property crime has falled by just over 2%. The net change: + 0.1% (since there is about 10 times as much property crime as violent crime). So he is just factually wrong.2

Screen Shot 2013-06-24 at 10.41.18 AM

But looking at the graph reveals another, deeper problem with his analysis. Given that crime soared from 1960 to 1991 (with a little pause for violent crime in the early 1980s), why present just a single percent-change number? If we want to understand why prison populations have risen sharply since the mid-1970s, we can't just ignore the unprecedented rise in crime that accompanied the first 20 years of prison growth.

Furthermore, if we want to understand why crime remains such a politically powerful issue, just note that despite the crime drop since 1991, violent crime is still 100% higher than it was in 1960, which were the formative years of the politically-powerful Baby Boom cohort. And much of the drop since 1991 has come through self-protective measures that don't necessarily make us actually feel safer (security systems, not going out at night, etc.). So we are still a relatively violent country by historical standards for a large bloc of voters. 

Gunderman's conceptually and factually misleading number misses all of this, and thus understates the direct and indirect roles that crime can play. Sadly, this is not an unusual problem in the literature.

Next he moves on to sentencing:

New sentencing guidelines have been a key factor. They have reduced judges' discretion in determining who goes to jail and increased the amount of time convicts sentenced to jail spend there. A notable example is the so-called "three-strikes" law, which mandates sentences ranging from 25 years to life for many repeat offenders. 

First, let's start with the strike laws. While a majority of states have them, according to Frank Zimring about 90% of all strike sentences are handed down in California. So states have them, but don't use them. 

Moreover, guidelines are used in a minority of states, and some data suggests that guidelines are negatively correlated with prison growth: states adopted them to rein in prison populations. Now if we are talking about the federal guidelines, maybe Gunderman is right. But the story is much different in the remaining 89% of the system.

Even more important, it simply isn't the case that longer sentences has caused prison growth. This is the biggest zombie idea of them all, and I will be dedicating several posts to it down the line. But it simply is not the case. I'll give Gunderman a pass on this claim, though. It is almost accepted as gospel inside and outside the academy. I've had people tell me that my results must be wrong because of the conclusions I reach, a complete inversion of the (social) scientific process, and one that must make Thomas Bayes and Pierre-Simon Laplace spin in their graves.

Up next, an oldie-but-goodie:

Perhaps the single greatest contributor has been the so-called "war on drugs," which has precipitated a 12-fold increase in the number of incarcerated drug offenders. About 1.5 million Americans are arrested each year for drug offenses, one-third of whom end up in prison. Many are repeat offenders caught with small quantities of relatively innocuous drugs, such as marijuana, a type of criminal activity often referred to as "victimless."

Do I even need to say anything more at this point? Maybe just two small things. First, the ratio of drug inmates to drug arrests is about 23%, not 33% (see here and here). And 1.5M arrests is a large number, but keep in mind we arrested almost 12.5M people in 2011. It would be surprising if just 12% of all arrests drove everything. The back-of-the-envelope calculations don't seem to work.

Gunderman then turns his attention to crack/powder sentencing in particular:

Some sentencing laws seem little less than perverse. For example, in the 1980s, crack cocaine received a great deal of public attention. In response, the U.S. Congress passed legislation imposing a 100 to 1 sentencing ratio for possession of crack cocaine, as compared to its powdered form. ... From a medical point of view, this makes little sense.

First--again!--we should focus on state sentencing, not federal. And apparently most states do not punish crack and powder differently, and those that do use lower ratios.

Moreover, the medical argument is tricky. What matters is not the chemical form but the method of delivery: oral ingestion is more addictive than smoking or IV use, and smoking and IV use are more addictive than inhaling. Since crack is generally smoked and powder frequently inhaled, the form did make a difference. Moreover, there were real social costs associated with the introduction of crack, though these were almost certainly linked more to the destabilizing effects of the crack markets, not the drug itself, since crack use appears to remain at about 70% of its peak use level.

Now perhaps targeting form rather than method of distribution, or targeting the drug rather than the social ills directly, were bad policy decisions. But the issue is far more complex than the glib "little less than perverse" implies.

Next, Gunderman turns to the costs of prisons, arguing:

The costs of incarceration are high. For example, the state of California spends approximately $9,000 per year for each public school student it educates but over $50,000 per year for each inmate it keeps incarcerated. The proportion of the state budget devoted to imprisonment has been increasing at a rate much faster than that for education. Moreover, despite California's huge prison expenditures, its prisons recently held 140,000 prisoners in facilities designed for only 80,000.

First, all fifty states are different, and when it comes to penal policy California is a distinct--albeit large--outlier. So it does not necessarily make sense to use California as a stand-in for the US. As my own work has shown, Census data on expenditures suggest that prison spending as a share of the budget has been flat since crime started dropping in the 1990s. States have become much richer during that time, and they have chosen to spend on everything. There may be some crowding out going on, but it is not immediately clear.

Screen Shot 2013-06-24 at 12.07.29 PM
(In the figure, don't worry about the three lines: they are just different ways of thinking about a state's budget. But no matter how we define "budget," the same pattern holds.)

Moreover, at a national level, spending on schools greatly exceeds that on prisons. Perhaps on a per-student and per-prisoner basis the prisons get more, although the implications of that are not immediately clear--there are a host of assumptions about the correlation between spending and outcomes that underlie Gunderman's point. These assumptions may be true, but they need to be supported (or at least acknowledged).

Finally, note that the $50,000/prisoner number--which is one of the highest levels in the country--is just an average cost measure, not a marginal. Cutting one prisoner will not reduce costs by $50,000. After all, releasing one prisoner does not reduce heating, staffing, maintenance, or other costs at all. The best estimate of marginal costs that I have seen, using data from Maryland, suggests that marginal costs are half of average costs.

Then, he turns to the other side of the prison-crime problem:

Does prison do any good? This is a surprisingly difficult question to answer. 

He's absolutely right: given the endogenous nature of prison and crime, disentangling any sort of causal story is incredibly hard. But he uses this difficulty to basically just throw up his hands and admit that there may be some incapacitative and retributive benefits, but that's about it. Perhaps. But while complicated, there is a lot of data out there, and the more-methodologically sound studies do find that prison growth reduced crime. We may be well past a point of declining--maybe even negative--marginal returns, and our focus on prison likely distracted us from what would have been a much more efficient focus on police. But again, these are much more nuanced arguments than the usual "prison doesn't stop crime" argument that gets trotted out as part of the Standard Story.

He goes on:

Yet it is difficult to make the case that so-called correctional institutions do much in the way of correcting, reforming, or rehabilitating inmates. The recidivism rate at 3 years post-release is about two-thirds, of which over half end up back in prison. The most important factor in preventing recidivism is not the amount of time people serve in prison, but the age at which they are set free. The older inmates are at the time of their release, the less likely they are to return.

First, an "amen." The age-profile of offending is a hugely-overlooked issue in our criminal justice system. Offending does not occur randomly over the life-course. Those who offend repeatedly start in their early teens with property crime, graduate into violent crime in their late teens and early 20s, and start to ease out of offending in their late 20s and 30s. Of course, there is a lot of variation in these trends, and sadly we cannot seem to predict who will follow what trajectory in advance. 

But our policies clearly ignore this fundamental fact. Offenders generally get their harshest recidivist-enhanced sentences just as they are most likely to start aging out of criminal behavior. One could argue that such sanctions are the necessary evils of maintaining a credible threat, but the evidence about the deterrent effect of severe sanctions is weak. On the other hand, throwing the book at the young first-timer is hard because of the false-positive risk. Gunderman deserves credit for drawing our attention to this.

On the other hand, the 2/3 number is a really tricky one to understand. First, if 1/3 of all cancer patients receiving a chemotherapy treatment survived three years, would we call the therapy a "failure"? It depends on the baserate survival risk without the treatment--and we have no idea what that would be for the recidivists. If 1/3 would not have recidivated no matter what happened, then prison does not reform well. But if all would have recidivated but for incarceration, then maybe 1/3 is a remarkable success, given the challenges of changing human behavior later in life.

Instead, we should look to prison programs directly. And here there is a huge literature which suggestst that a lot actually works, although context, design, etc., etc. all matter significantly. Again, a much more complicated picture than the Standard Story is equipped to handle.

His next point is that incarceration hurts the families of inmates, and this is a good point to make; I don't really have anything to criticize. In our debates over prisoners-vs-victims, it is important to remember that many family members of inmates--particularly their children--are themselves now victimized by the process.

His turn to community harms, though, again reflects the unnuanced perspective of the Standard Story:

Incarceration also takes a big toll on communities. Its costs, both direct and indirect, are high, and it draws resources away from other equally or more worthy needs, such as education and healthcare. Some communities, particularly in inner cities, are devastated by incarceration.

True, but since crime is geographically concentrated, these are also the communities devastated by crime. As James Forman has pointed out, much of the demand for tougher sentencing laws during the 1980s came from inner-city black communities, which have also borne the brunt of their enforcement. Crime policy is not just some disinterested state imposing its will on politically powerless inner-city communities. 

That's enough (and the end of the Atlantic article). Sadly, this is what I am used to reading: this is the Standard Story in a nutshell. And it is wrong in so many ways. It undersells crime, it oversells harsh sentences, it focuses too much on drugs and not enough on the complicated politics of a disaggregated criminal justice system. It looks at the harms to inmates and families--perhaps because its focus on drug crimes leads it to think of average offender as someone who committe a "victimless" crime--but ignore the victims of crimes. And, in particular, ignores how the victims of crimes are generally the neighbors of the victimizers, making the community story a tough one to describe empirically.

And as long as we accept the Standard Story, it is unlikely we will implement reforms that really target the heart of the problem.

1Gunderman is a pediatric radiologist who writes primarily about bioethics. So I have no idea why he feels qualified to write about prison growth, and why the Atlantic decided to publish his writings. His primary hook seems to be that mass incarceration has serious public health ramifications, which is indubitably true. But that does not automatically make a doctor qualified to write about such a complicated social process (nor an epidemiologist, for that matter). All I can think of is this xkcd cartoon.

2Violent crime has fallen by 37%, and property crime by 28%, since 1992. But that is just 24 years, not 40. 


Posted by John Pfaff on June 24, 2013 at 03:18 PM in Criminal Law, Current Affairs | Permalink | Comments (1) | TrackBack

The procedure of Title VII

Given my limited knowledge of the details of Title VII, I will not delve too deep into the details of either  Vance v. Ball State University (only those with hiring/firing authority qualify as supervisors) or Univ. of Texas Southwestern Med. Ctr. v. Nassar (but-for cause required for retaliation claims). Instead, I wanted to note the role that procedure plays in both decisions.

Justice Alito's majority opinion in Vance insists that the Court's (seemingly) simpler definition of superviso will be more readily applied to resolve disputes prior to trial--primarily on summary judgment, although it hard not to see this trickling back into Twiqbal-tinged 12(b)(6) decisions. Similarly, Justice Kennedy in Nassar insists that a lesser causation standard makes it "far more difficult" to "dismiss dubious claims at the summary judgment stage" (emphasis addd--is it any wonder our students confuse those terms?). It is not sufficient that the employer could "escape judgment after trial."

The logic here calls to mind Harlow v. Fitzgerald, in which the Court adopted a purely objective  standard for qualified immunity in § 1983/Bivens actions precisely because it would allow more claims to be resolved at summary judgment. But qualified immunity is an affirmative defense vesting in defendant officers a right not to litigate, purely for instrumental reasons--freeing them to focus on serving the public interest without having to deal with the distraction or chilling effect on governmental conduct. One can disagree with that doctrinal logic. But even accepting that, this is vastly different than saying that every defendant has a right to avoid liability prior to trial and that the substantive claim-creating legal rules (as opposed to an affirmative defense) should be interpreted in such a way explicitly to preserve that right. It no longer is enough that the "correct" party prevail--they now must prevail at the right point in litigation.

The other thing flowing through both opinions is concern for juror confusion and the need to make cases easier to grasp and decide. In particular, Alito emphasizes the need for "reasonably clear jury instructions in employment discrimination cases." Of course, the need to make jury instructions more comprehensible does not mean the need to simplify (if not "dumb-down") the substantve law itself. Jurors are capable of understanding and applying difficult legal concepts; the call from scholars has been to present and explain those concepts to the jury in a clearer way.

Alito also insists that "the danger of juror confusion is particularly high where the jury is faced with instructions on alternative theories of liability under which different parties bear the burden of proof." But on that logic, we should never have jurors deal with affirmative defenses or counterclaims, which necessarily involve different parties carry different burdens of proof. In any event Nassar itself presents the very problem by imposing different causation standards for substantive claims and retaliation claims; as Justice Ginsburg argues in dissent, those types of claims often (as in Nassar itself) are regularly brought together. In other words, contrary to what Vance suggests should happen, Nassar means jurors will have to deal with different theories of causation fairly regularly (unless, of course, the new but-for standard succeeds in keeping retaliation cases from ever reaching trial).

Posted by Howard Wasserman on June 24, 2013 at 02:21 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0) | TrackBack

Saturday, June 22, 2013

Dismissing the DOMA Case

Apparently "the rumor sweeping DC this past week" is that the Supreme Court will decide that it lacks jurisdiction in the DOMA case, and thus will dismiss the case without ruling on DOMA's constitutionality. Adam Winkler discusses the scenario in the New Republic (and seems to think that the consequences of doing so would be quite bad).  A friend asked me what I thought of the rumor.  Well: 

First, dismissing the case for lack of jurisdiction would be the right thing to do.  Invocations of the Supreme Court's jurisdiction, like any federal court's, require the invoking parties to have a real problem that they want the court to do something about.  But neither Windsor nor the United States has such a problem here.  Both of them got the result in the district court and in the Second Circuit that they wanted, and we can tell that because they're asking the Supreme Court to affirm.  An appeal where both parties want the Court to affirm is an appeal where there's no standing.  (Note for SCOTUS nerds-- this is different from the rare but consistent occasions where both parties want the Court to reverse and the Court appoints an amicus; those cases have prudential adverseness problems, but they don't have standing problems.) 

And as for BLAG's participation, 28 U.S.C. 516 limits the  "the conduct of litigation in which the United States" is a party to "officers of the Department of Justice," "except as otherwise authorized by law."  No law delegates that authority in this case to BLAG. 

In my view the only thing making this difficult is the Supreme Court's (apparent) earlier conclusion that it had jurisdiction in INS v. Chadha, but that case's reasoning isn't well explained and may not be correct or applicable.  (The always insightful Marty Lederman has responses to some of these concerns here, though he takes a much more doctrinal and less conceptual approach to the question; I don't actually mean for this post to substitute for the extensive briefing on the question.)

Second, with all that said, I still think it's highly unlikely that the Court will dismiss the case.  Of course oral arguments don't always predict case outcomes, but during the arguments over jurisdiction in the DOMA case the Court seemed very sympathetic to BLAG's position that there was standing.  (E.g., Paul Clement: "And if you want to see the problems with their position, look at Joint Appendix page 437. You will see the most anomalous motion to dismiss in the history of litigation: A motion to dismiss, filed by the United States, asking the district court not to dismiss the case. I mean, that's what you get under their view of the world, and that doesn't serve as separation of powers." Justice Kennedy: "That -- that would give you intellectual whiplash. I'm going to have to think about that.").  And it would be easy to write an opinion that finds jurisdiction with very little discussion, citing Chadha and moving on.  Dealing with the question without much explanation might irritate some professors of federal jurisdiction, but the Court doesn't always care what they think.

Third, if the Court does dismiss DOMA for lack of jurisdiction-- as it should-- the consequences would hardly be disastrous.  The result is simply that the parties can't appeal if neither of them wants the appellate court to do anything.  As soon as any court actually upholds DOMA, there will be appellate jurisdiction.  (One recent district court decision in the Ninth Circuit has arguably upheld DOMA.)

Winkler mentions this:

There is one possible route back to the Supreme Court. If someone challenges DOMA and loses, he or she would have the right to appeal. It’s hard to see that happening, however, given that the administration refuses to defend the law. Every challenger should win.

But it's worth emphasizing what this really means. If any court upholds DOMA, there will be jurisdiction in the Supreme Court. And if not-- if every single court to consider DOMA's constitutionality strikes it down-- the Supreme Court's intervention won't be needed, because DOMA will be invalid everywhere its constitutionality is raised. At that point, even the Obama administration would probably stop enforcing it.

Posted by Will Baude on June 22, 2013 at 11:32 AM in Civil Procedure, Constitutional thoughts, Judicial Process | Permalink | Comments (10) | TrackBack

A Pessimistic View of Global Warming

This American Life is one of my favorite podcasts (besides the podcasted Supreme Court oral arguments, when the Court is in session).  But because of that, I wanted to take a moment to complain about a recent episode, about global warming. The show started with a vaguely promising premise:

The conversation about climate change is stuck. It's stuck. It's stuck in the same utterly tiresome place that it has been stuck for years. There are the people who believe that global warming is happening, and there are the people who don't believe that, going back and forth with the same retread arguments over and over. According to a recent Gallup poll, just over half the country thinks that climate change is real and is man-made-- which, despite the crazy weather last year, is more or less exactly where it's been for most of the last decade, give or take a couple percentage points.

And today on our program, after a year that seemed like a dramatic preview of what climate scientists are predicting for all of our futures, we ask, why in the world is the conversation so stuck? That's going to be the first half of our show. And then in the second half of the show, we have found some places where it feels like battle lines are, in fact, shifting a little bit. We've found completely fascinating efforts by people who are consciously trying to lift us out of the mire and muck that we have been caught in, to end the standoff, to reinvent the exhausting, stupid climate change debate.

But the results were quite disappointing. All of their examples of people supposedly "reinventing" the climate change debate were people who were convinced that we needed to do something now to stop or reverse global warming, which is pretty much what that side of the debate has wanted all along.

Now, I am inclined to assume that global warming is occurring and that human activity is responsible (not, as Justice Scalia would say, that I can affirm that "on my own knowledge or even my own belief"). But in a show that was devoted to finding ways out of the standard debates about climate change policy, I was surprised to hear nothing like the following view:

We may well be causing climate change, but it's not clear there's anything we as individuals or we as a country are really equipped to do about it. So much of the damage is already done, and so much of the future damage will be caused by activities that the United States government can't control, that no useful policy proposals that are plausible-- or even conceivable given our current political institutions. Thus, the science of climate change really isn't relevant to any important decisions, or even any important political activism, until scientific solutions or political institutions radically change. We can just ignore it.

Now, I am not certain this view is correct. I am not even certain that I hold this view (although I am sympathetic to it). But I've heard it articulated by at least one smart law professor, and I've got to assume that he's not the only one. I would have thought that at a minimum it deserved a place in the show. (The show also didn't discuss any of the weird science discussed by team Superfreakonomics.)

[UPDATE:  I like this response by Eric Biber on adaptation.  His core point: "even if you think we can’t do anything at all to reduce the extent of future climate change, we still need to adapt to that climate change."  I basically agree.  There's reason to doubt that our current political institutions (democracy, lack of world government) can feasibly do much to stop the output of greenhouse gases; but adaptive measures don't require the same kind of global cooperation or (as much) time-consistency.  Assuming, that is, we can figure out what adaptive measures are necessary.

I wish he'd been on This American Life!]

Posted by Will Baude on June 22, 2013 at 01:27 AM | Permalink | Comments (49) | TrackBack

Friday, June 21, 2013

USAID Implications

Reading through the Court's opinion in Agency for International Development v. Alliance for Open Society International, Inc., I wondered whether the Court's reasoning has significant implications for states' efforts to limit funding for social service provision to groups that do not violate state antidiscrimination laws in the face of claims by religious groups and individuals that refusing to recognize gay marriage is a core part of their religious freedom.  

As I understand the Court's logic in the US AID case, if the government cannot mandate something without violating the First Amendment's protection of speech (e.g., opposition to prostitution and sex trafficking), it cannot condition receipt of funds on acceptance of that mandate unless the conditional mandate "define[s] the lmits of the government spending program." 

Now, it seems likely that a majority on the Court would conclude that the First Amendment, either through the free exercise clause or the associational freedom dimensions of the speech clause or the "ministerial exception" grants some religous groups the right to discriminate in at least some employment contexts against gay people. 

If a state wants to fund adoption programs that are, say, open to same-sex couples on a non-discriminatory basis, it can (consistent with the logic of USAID, as I understand it) withhold funds from groups who refuse to comply with that requirement because the condition defines the scope of the program the state wants to fund.  On the other hand, if it limits its funding for soup-kitchens to, say, groups that provide health benefits to same-sex partners (or spouses) or that have qualifying nondiscriminatory employment policies, then the state would seem to run afoul of the Court's unconstitutional conditions logic.  

Am I missing something?


Posted by Eduardo Penalver on June 21, 2013 at 05:51 PM | Permalink | Comments (2) | TrackBack

Comey, Bipartisanship and the Obama Administration

From what little I know and recall of the guy, James Comey seems like a pretty solid selection for the FBI. But in picking yet another Republican from the W ancien regime, and particularly  in the area of national security/homeland protection, I have to wonder what's motivating the Obamians.

As one friend on FB mentioned, it seems staggering that there would be such bipartisanship efforts made after the scorched earth policies toward Dems by R's in the pre-2008 era. And as another friend mentioned, picking Comey means not advancing the careers of a Dem who could be elevated in future Dem administrations for other high and higher slots.  Obama's also been picking a number of Comey-like judges (e.g., my old colleague from OMM Sri Sri...probably a Dem but someone who was an SOC clerk and well, is he really an Obama guy?). Sure they're highly qualified, able, and demonstrate integrity. But there will be interstitial discretion on policy issues that maybe don't reflect the Dems' point of view. Still, maybe that's what Obama's game is: perhaps he really is principled in this respect and isn't seeking to lard his administration with lackeys. But I wonder if he just thinks he can't get folks with more lefty credentials through Congress, or that there aren't folks he likes/trusts with those lefty creds given his love of the lethal presidency. In any event, I would be more likely to simply applaud choices like Comey and Sri, and maybe some of the other cabinet or sub-cabinet picks (i'm still kind of pissy about Hagel), but I have great trouble recalling any Dems being promoted under the W regime to such high profile positions. Does Obama think his "gifts" to folks across the Aisle will change the Beltway culture of the Republicans, or does he just not care because he thinks these are the best guys (and, um, yes, there are lots of guys here)? Inquiring minds want to know...



Posted by Administrators on June 21, 2013 at 05:06 PM in Article Spotlight, Current Affairs, Dan Markel | Permalink | Comments (7) | TrackBack

Calibrating Progress in the Economy of Prestige? Do Prawfs Have Adequate Awards?

The culture of prestige-mongering is one in which many of us participate, wittingly or not. Now comes an email from the provost of FSU stating that FSU is planning on trying to incentivize and reward achievements in various disciplines through various raises, etc. From what I can tell, the school seems to be inclined to follow the National Research Council's list of awards, available in spreadsheet form here.

I took a peek at the Humanities and Social Sciences spreadsheets and saw only a few things that would be of interest to conventional law profs. If you were to write the provost, what would you suggest as awards or achievements that belong on those spread sheets for law profs? FWIW, I am not here endorsing the economy of prestige but just want to marginally improve its plausibility viz prawfs.  So please forbear from generalized kvetching about status anxiety. For purposes of this post, indulge it.  And if you're having trouble brainstorming a list of awards and prizes (as I am), what should be done about it and who should do it?

A first offer: Law and Society has a bunch of prizes, and AALS has its scholarly paper award for young folks. What else belongs? Stanford-Yale invitations? ACS or Fed Soc Bator Prizes?  LAPA fellowships at Princeton? 

Posted by Administrators on June 21, 2013 at 03:38 PM in Blogging | Permalink | Comments (2) | TrackBack

Modified Categorical Imperative

I am pleased by Descamps.  Like many people to have clerked on courts with a sizable criminal docket, I have spent a lot of time thinking about the so-called "categorical approach" to sentencing, and what Justice Kagan calls the "not very inventively" labeled "modified categorical approach."  If you don't know what this is, it probably isn't worth your time to learn it, but the gist of it is a formalistic, frequently misunderstood approach to determining when a defendant has a prior conviction for purposes of the Armed Career Criminal Act and other similar statutes, instigated by a case called Taylor.  Anyway, in keeping with the prior format:

  • This is the most correct thing the Court has written about the categorical approach since Taylor itself.
  • That said, I am still unsatisfied with pages 16-19, where the Court tries to explain the difference between alternative elements of a crime and alternative means of committing the same crime.  The Court seems to link this test, for modified categorical approach purposes, to the rules about juror agreement on alternative theories of the crime.  ("Seems" because the dissent, but not the majority, cites Schad and Richardson.)  That might be right, but I know enough to know that it's a complicated area where the Court's precedents are unsatisfying.  And if Steve Sachs is right about how to think about alternative theories of the crime, then it's an unpromising fulcrum from which to move the modified categorical approach.
  • This is not a decision about burglary.  It's a broad statement about the modified categorical approach and a big change in what I've seen from many judges' thinking in this area.
  • I also find it moderately surprising that the opinion purports to "reserve" the question of whether to "take account not only of the relevant statute’s text, but of judicial rulings interpreting it," which many people had thought was uncontroversial.
  • If you are interested in sharp-tongued judicial rhetoric, you should be following Justice Kagan.  The opinion positively mocks the Ninth Circuit decision, Aguila-Montes de Oca, that is substantively reversed in this case. ("When assessed in light of those three reasons, the Ninth Circuit strikes out swinging." "Similarly, consider (though Aguila-Montes did not) ..." "The Ninth Circuit defended its (excessively) modified categorical approach ..." "Here is the only conclusion in Aguila Montes we agree with:")
  • For a long time, every time I thought I had a useful article to write about the modified categorical approach, the Court would ruin it with a new (problematic) decision.  For once, I feel like it is moving wholly in the right direction.

Posted by Will Baude on June 21, 2013 at 02:09 AM in Criminal Law | Permalink | Comments (0) | TrackBack

Thursday, June 20, 2013

Settlement in SCOTUS

How often do cases settle once they have reached SCOTUS, that is, once cert has been granted or even sought? Has anyone studied the question? Does anyone know off-hand? I know of cases such as Pottawotomie County, a § 1983 wrongful conviction case that settled for $ 12 million after oral argument, which made news in part because it was so rare (and because of the settlement amount).

Posted by Howard Wasserman on June 20, 2013 at 04:43 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (7) | TrackBack

Baude on Spillenger on Extraterritoriality and the Constitution

More on today's decisions (and perhaps a few more comments on my prosecutorial comment post) when I'm not running to grab a plane (the story of my life).  For now, I just wanted to cross-promote a post I have today on JOTWELL, State Boundaries and Constitutional Limits.  From the post:

Territoriality is a basic premise of the federal system; everybody knows that the New York legislature can’t just sit down and rewrite all of the laws of New Jersey. This seems like a common-sense requirement of our constitutional structure.  But as Clyde Spillenger demonstrates in Risk Regulation, Extraterritoriality, and the Constitutionalization of Choice of Law, 1865-1940, the nature and source of this principle is misunderstood today. ...

And from the conclusion:
By the way, so far as I know, this piece has not yet been picked up by a law journal. Student editors who are reading this: grab it while you can!

Posted by Will Baude on June 20, 2013 at 03:20 PM in Civil Procedure, Constitutional thoughts, Law Review Review | Permalink | Comments (0) | TrackBack

Judicial rhetoric in AID

SCOTUS today decided Agency for Int'l Development v. Alliance for Open Society In'tl, holding 6-2 (per the Chief; Scalia dissenting, joined by Thomas; Kagan recused) that requiring a recipient of federal HIV/AIDS funds to adopt a policy opposing prostitution violates the First Amendment. I don't have a lot to say about the opinion, other than it is interesting to see Rust v. Sullivan once again discussed as a funding case and not a government-speech case (which it had sort of morphed into). Instead, I just want to draw attention to the language and rhetoric flying around both the majority and dissenting opinions.

Justice Jackson and the 70-year-old Barnette get some love from the Chief. After saying that the program "requires [recipients] to pledge allegiance to the Government's policy," Roberts insists that "we cannot improve upon what Justice Jackson wrote for the Court 70 years ago," going into Jackson's "fixed star in our constitutional constellation" quotation.

The Chief also throws in his usual turns of phrase--"an offer that cannot be refused", funding activities "on its own time and dime", as well as the "pledge allegiance" line above. These are becoming quite common in Roberts opinions, especially his First Amendment cases. I still cannot decide if they are distracting or make for good judicial writing.

Of course, Roberts cannot hold a candle to Justice Scalia in this respect, especially when Scalia is in dissent and is not trying to guide lower courts or hold a coalition together and can go with guns blazing. Thus, the majority "pussyfoots" around the issue of coercion (or lack thereof) in the funding program and it makes a "head-fake" at unconstitutional conditions. The idea behind the limitation--government enlisting the aid of those who support its ideas--is a "matter of the most common common sense." And the "elephant in the room" is that Government does not really force anyone to do anything by denying funding. (On that last one, I appreciate that Scalia did not mix his metaphors by either making the elephant pink or having it weigh 800 pounds).

Scalia is especially hot in creating hypotheticals. He uses Hamas as an example of an organization that is quite good at distributing public welfare, but reasonably could be excluded from a food-distribution program (even if Hamas were a U.S. organization). Or he insists that a "federal program to encourage healthy eating habits need not be administered by the American Gourmet Society, which has nothing against healthy food but does not insist upon it." Or note the examples he uses to show that government funding of a particular viewpoint obviously discriminates against those who disagree--"Anti-smoking programs injure cigar aficionados, programs encouraging sexual abstinence injure free-love advocates." That last one was striking--the opposite of sexual abstinence is free love and not those who recognize sex as a part of any monogamous relationship? And does anyone even use the term "free love" anymore?

Also, recall that last week in Myriad Genetics, Justice Scalia refused to join the portions of the opinion discussing details of genetics and molecular biology, some of which seemed fairly anodyne. There has been some discussion about Scalia's apparent uncertainty about the science. Well, his AID dissent shows he has no such hesitation (humility?) about economics ("Money is fungible. The economic reality is . . . they can expend greater resrouces on [other] policies. . . . [T]his is a real and obvious risk.") or communicable diseases ("prostitution, by which HIV is transmitted").

Finally, a more substantive point. I quote Scalia's closing flourish because it does say something about his views of government programs and unconstitutional conditions:

Americans need not support the Constitution; they may be Communists or anarchists. But “[t]he Senators and Representatives . . . , and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support [the] Constitution.” U. S. Const., Art. VI, cl. 3. The Framers saw the wisdom of imposing affirmative ideological commitments prerequisite to assisting in the government’s work. And so should we.

In other words, all who work on the government's behalf or support are just like government officials and can be subject to the same limitations as those who are, by virtue of their elected or appointed position, actually wielding government power. Is that right? And should it be? And, if taken literally, what does it mean for other sreas of the law? For example, should a recipient of federal funds now be treated as a state actor for 14th Amendment/§ 1983/Bivens purposes?

Posted by Howard Wasserman on June 20, 2013 at 12:15 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2) | TrackBack

The difficulty of defining victimhood

Not surprisingly, the father-son pimp team who were the targets of New York City's first big state trafficking prosecution were acquitted of trafficking. (The Georges had already admitted to promoting prostitution, a charge with much less severe consequences). As I noted in my prior post, Trafficking?, three of the alleged trafficking victims testified for the defense that they were not trafficked.  To the contrary, they claimed that they had a great life with vacations, cars, and lengthy maternity leave, and sold themselves because it provided a good income and out of love for George Jr.

This case, in addition to being a cautionary tale for prosecutors in the still new area of trafficking, is illuminating on the broader subject of victims.  Who gets to define them--the law?  This is clear cut in trafficking as to minors under the federal TVPA, for instance, but as to adults is not always so clear as it involves the definition of coercion. Perhaps the victims themselves, as autonomous beings?  The George case shows that the judge there (the defendants waived a jury) clearly gave great weight to the alleged victims' testimony that they were not in fact victims. Experts? The prosecutors here brought in an expert to outline some of the characteristics of sexually exploited people. The prosecutors then argued that the women here were telling such an outlandish story--no reasonable, uncoerced person could really want to share one "husband" among 3 women, be tattoed with his name, and prostitute themselves for money--that the women's testimony was further proof that they were trafficked, i.e. forced into behavior.

Having worked with some sexually exploited girls, I believe that coercion/trafficking is a part of the picture in the George case. (One of the women, for instance, met the Georges as a minor, but claimed she didn't start working as a prostitute until her "eighteenth birthday"). But as a legal matter I think it is problematic to assign victimhood to people who refuse it. This demeans their autonomy and can delay the healing process. It can also have implications for their family life etc. These concerns come up a lot in the domestic violence context, as Aya Gruber, in The Feminist War on Crime, and others have written about. So I'm still up in the air about how to assess victimhood in these difficult contexts.

The flip side of this, of course, is that some victims are not deemed worthy of victimhood status and the law's protection. These are usually victims marginalized by race, class and non-normative behaviors.  In his recent piece  A Theory of Criminal Victimization, Josh Kleinfeld notes that the usual preference for female victims does not extend to prostitutes. (And I argue in my work-in-progress Punishing to Protect, that the paradigm of child victim does not extend to child prostitutes). Perhaps that played a role in the decision here?

Posted by Cynthia Godsoe on June 20, 2013 at 12:06 PM | Permalink | Comments (0) | TrackBack

Equality, Parental Leave and Quotas

Cynthia Godsoe and I have a little theme going this month, which is great fun.  In her last post, she talks about how the motherhood penalty is what drives gender inequality in the workplace.  Her account confirms some of the points I made in my previous post, "To Counter "Sexism's Puzzling Stamina," the State Must Lean In."  The motherhood penalty has perverse impacts on the professional lives of men and women as they go through their professional trajectories – men benefit from a lack of competition as they are presumed to be available to work longer hours and more flexibly, and women suffer, sometimes even if childless, from a presumption of fragility and demands on their time extrinsic to work. The policy solution I highlighted before was the need for thick gender neutrality in parental leave, one that served as the focus for my Unsex Mothering article.  The neutrality, especially as Sweden organizes it, encourages men to take parental leave and to engage more actively in their family lives.  As it becomes expected for men to participate in family life, their competitive benefit at the workplace will diminish.  

The complementary solution to more thickly neutral parental leave policies is to foster women’s inclusion in the workplace.  Women’s education in developed countries long ago caught up with men’s education levels, yet decades later women remain a small minority among high level managers, partners at law firms, and political representatives.  

Outside the United States many countries have begun to experiment with quotas to speed women’s advancement in leadership roles.    Quotas arouse an enmity and scorn across the U.S. political spectrum.  It may be for this reason that I've found them to be such a rich source to mine for understanding how other countries respond to inequality.  Over one hundred countries have some form of quota to increase women’s political representation, a phenomenon I worked on with regard to France's Parity.  

More recently, though, some countries have begun to experiment with quotas for corporate boards as a way to insert gender diversity into the private sector’s upper echelons.   Norway achieved this first with its 2003 quota, which I examined in Feminizing Capital.  The goal was to achieve gender balance with a forty percent floor that would apply to either sex, one that would ultimately protect men as well as women in case Hanna Rosin proves right in her End of Men prediction.

In addition to the equality argument, supporters of quotas point to the positive impact of women on corporate governance.   A critical examination of the “business case” is the focus of my current study, which I’ll discuss in the next post.  Here, I just wanted to highlight the important link between corporate governance and gender equality policy. The quotas complement the parental leave efforts in both policies attempt to render sex less relevant in terms of corporate success or parental responsibility. 


Posted by Darren Rosenblum on June 20, 2013 at 10:17 AM | Permalink | Comments (5) | TrackBack