• Archive for June, 2013

    Democratic Legitimacy, Shelby County, and DOMA

    by  • June 27, 2013 • Faculty Commentary • 1 Comment

    Shapiro_Carolyn thumbBy Carolyn Shapiro

    It has been a busy few days at the Supreme Court. People have been riveted by the Court’s dramatic striking down of a key portion of the Voting Rights Act (Tuesday) and by its equally dramatic rulings striking down the Defense of Marriage Act and declining to reach the merits in the challenge to California’s Proposition 8 (Wednesday).

    While there is much to say about all of these cases, here I want to remark on the very different views of the democratic process on display. To begin with, the Voting Rights Act case, Shelby County v. Holder.

    Quick summary: Section 5 of the Voting Rights Act requires certain “covered jurisdictions” to get permission (known as preclearance) from federal authorities before making any changes to their voting procedures. Section 4 of the Act provides the coverage formula by which these jurisdictions, mostly but not exclusively in the South, are identified. The rationale behind these provisions is to prevent jurisdictions from using facially neutral changes to impede minorities’ political participation. Most recently, for example, Section 5 preclearance has prevented several states from imposing voter ID requirements—requirements that would apply to everyone but that would have the effect of preventing disproportionate numbers of minorities from voting. Texas has already announced its intention to move forward with such requirements now that this part of the VRA has been struck down. (more…)

    Justice Alito: Right and Wrong

    by  • June 27, 2013 • Faculty Commentary • 0 Comments

    Baker_Katharine thumbBy Katharine Baker

    As someone who has spent considerable amount of time in the last two years working on amicus briefs in favor of yesterday’s Supreme Court decision striking down Section 3 of the Defense of Marriage Act, I will start by saying that—oddly enough—I think Justice Alito’s dissent in United States v. Windsor got one thing absolutely right: the equal protection framework “is ill suited for use in evaluating the constitutionality of laws based on the traditional understanding of marriage, which fundamentally turn on what marriage is.” Alito Dissent at 10-11. So instead of criticizing the Supreme Court for not declaring sexual orientation a protected class and thereby all but requiring immediate national recognition of marriage for same sex couples, I will praise the Court for providing a somewhat more muddled rationale.

    Indeed, today’s Supreme Court majority in Windsor did as the First Circuit did in its DOMA case, Gill v. HSS: It combined a dose of federalism, with a tablespoon of equal protection and a teaspoon of due process, mixed it together and rationally and sensibly concluded that Congress violated constitutional principles when it limited federal recognition of marital status to marriages between a man and a woman. The Gill court was actually a bit more transparent than Justice Kennedy. It acknowledged that the federalism concerns necessitated a kind of “rational basis plus” review. That “rational basis plus” review is essentially what the majority in Windsor used in striking down Section 3.

    Equal protection doctrine and equal protection doctrine alone is not well-suited to resolve the issues presented by same sex marriage because, as I’ve written elsewhere (see The Stories of Marriage), gay men and lesbians only have an equality right to marriage if marriage is not an inherently gendered institution. I, along with many others, do not believe that marriage is an inherently gendered institution. I, for one, would not have gotten married myself if I believed it was an inherently gendered institution. But everyone—on all sides of this question—is well aware that there is still significant social discord on this subject. Many people today, many more people 10 years ago, and almost everybody 50 years ago thought that marriage was an inherently gendered institution. Thus, the real question, as Justice Alito suggested, is who should decide how to define marriage. (more…)

    Fisher and Shelby County: Two of a Kind

    by  • June 26, 2013 • Faculty Commentary • 0 Comments

    Nahmod_Sheldon thumbBy Sheldon Nahmod [via Nahmod Law]

    The Supreme Court handed down two important decisions on race in this last week of its 2012 Term that have more in common than appears on first reading.


    The first is Fisher v. University of Texas (PDF), 133 S. Ct. — (2013), where the Court held that the lower federal courts did not properly apply the required strict scrutiny to the University’s affirmative action plan.

    Rather than deferring to University administrators and their good faith regarding the question of whether the affirmative action plan was narrowly tailored to accomplish the compelling interest in diversity, the lower federal courts should have instead engaged in “stricter” scrutiny and asked whether the University adequately considered the availability of race-neutral alternatives to its affirmative action plan.

    In so ruling, the Court did not have to address the question raised by Justices Scalia and Thomas in their separate concurring opinions as to the propriety of using race at all in university admissions for diversity purposes.

    Shelby County

    The second is Shelby County v. Holder (PDF), 133 S. Ct. — (2013), a blockbuster decision where the Court held that Congress had exceeded its powers under section 2 of the Fifteenth Amendment when it re-enacted the pre-clearance coverage formula of section 4 of the Voting Rights Act of 1965 because that coverage formula was based on outdated data regarding voting and race in the covered Southern states. (more…)

    More Pro-Business Decisions at the Supreme Court

    by  • June 25, 2013 • Faculty Commentary • 0 Comments

    Shapiro_Carolyn thumbBy Carolyn Shapiro

    After last week’s decision in American Express v. Italian Colors Restaurant, I explained that the case was a classic example of the Roberts Court’s pro-business bent. On Monday, the Court issued two more. Both of these cases are Title VII cases, both were decided 5-4, and both will make successful litigation much harder for victims of discriminatory harassment (racial, sexual, etc.) or of retaliation for exercising their Title VII rights.

    In Vance v. Ball State University, the Supreme Court addressed the question of “who is a supervisor” within the meaning of Title VII. (Title VII is the 1964 law that outlaws employment discrimination on the basis of race, religion, sex, national origin, or color.) If a supervisor harasses someone, it is easier for that person to win a Title VII suit than if the harassment is by a co-worker. (It is not impossible to win if the harasser is not a supervisor, but the employee must show that the employer was negligent, which is a tougher standard to meet than if the harasser is a supervisor.) The Supreme Court said that only a person with authority to make “tangible employment decisions” such as hiring, promotion, and termination, counts as a supervisor. A person who oversees someone’s day-to-day work assignments and sets her work schedule, as in Vance, is not a supervisor under this standard.

    In University of Texas Southwestern Medical Center v. Nassar, the issue was what an employee has to show to establish that he or she was illegally retaliated against. In order to allow and encourage employees to assert their Title VII rights, Congress made it illegal for employers to retaliate against them for doing so. In Nassar, the Court decided that such an employee has to show that any adverse employment actions taken against them would not have occurred had they not asserted their rights. This is a more demanding standard than Title VII requires for establishing discrimination. There, the plaintiff need establish only that the discrimination was a motivating factor for the employer’s actions. (more…)

    Affirmative Action Survives — For Now

    by  • June 24, 2013 • Faculty Commentary • 0 Comments

    Harpalani_Vinay thumbBy Vinay Harpalani [via ACSBlog]

    More than nine months after it heard oral arguments, the U.S. Supreme Court finally rendered its opinion in Fisher v. University of Texas[1] In a surprising 7-1 ruling, with only Justice Ginsburg dissenting, the Court vacated the Fifth Circuit ruling and remanded the case, but it did not declare the University’s admissions policy to be unconstitutional. Rather, it instructed the lower courts to apply strict scrutiny with regard to the key question: whether the University of Texas at Austin needs to use a race-conscious admissions policy, in addition to the Top Ten Percent Law, to achieve the educational benefits of diversity. This is exactly what one of my recent law review articles on the case had recommended, albeit for different reasons. [2]

    Make no mistake about it: given the current composition of the Supreme Court, this is the best realistic outcome for proponents of affirmative action (I consider myself to be a strong one). Otherwise, Justices Breyer and Sotomayor, both of whom support race-conscious admissions policies, would not have voted with the majority. The Supreme Court’s opinion in Fisher pretty much leaves the framework of Grutter v. Bollinger [3] in place. The only change is that the language of “good faith” in Grutter is more restricted, and the meaning of this language was already ambiguous. [4]

    In Fisher, the Court states:

    [t]he reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the edu­cational benefits of diversity . . . [and] . . . [i]f “‘a nonracial approach . . . could promote the substantial interest about as well and at tolerable administrative expense[]’” . . . then the university may not consider race. [5] (more…)

    Haugh — Thoughts on Peugh v. U.S.

    by  • June 24, 2013 • Faculty Commentary • 0 Comments

    On June 10, 2013, Justice Sonia Sotomayor delivered the majority opinion in the U.S. Supreme Court sentencing case Peugh v. United States. (Visit Oyez’s summary page for background on the case.) Visiting Assistant Professor Todd Haugh, who specializes in white collar crime and sentencing law, weighs in on the decision.


    By Todd Haugh [via Sentencing Law and Policy Blog]

    First, Justice Sotomayor is really establishing herself as the Court’s current sentencing scholar, particularly as to Guidelines issues. By my quick tally, since taking her seat in 2009, she has drafted or significantly contributed to seven or eight important sentencing cases, while others are at two or three. I imagine her status as the Court’s only member to have regularly sentenced defendants as a trial court judge has something to do with this—she often seems to be the voice expressing the practicalities of sentencing (both from the defendants’ and judges’ standpoints), which has carried the day in Peugh and some of her other recent opinions (Pepper and Southern Union come to mind, as does the Alleyne concurrence). Scalia’s and Breyer’s overall impact may prove to be greater, but Sotomayor appears to be asserting herself in this area (and willing to spar with Alito).

    Second, following that thought and in line with some of the comments [to this prior Peugh post], the Peugh opinion is about the actual practice of federal sentencing versus how the system operates in theory. The dissent was sunk by its first argument—that the Guidelines do not constrain district court discretion. While in theory, based on the language and structure of 3553(a) and the Court’s reasonableness review jurisprudence, that may be true (and every defense attorney argues in the hopes of making it true), the realities of in-the-trenches sentencing demonstrate that increased Guideline ranges equal increased sentences (and thus risk of increased punishment under ex post facto analysis). This fact is well-documented by the Commission’s recent Booker report, it’s yearly data, it’s survey of judges; and a host of academic articles concerning the psychological process of judges when sentencing (i.e., anchoring and adjustment, etc.—see footnote 1 in Judge Calabresi’s concurrence in Ingram [discussed here]). It’s why DOJ advocates to members of Congress and the Commission for additional sentencing enhancements—increased risk to defendants of higher punishments means more bargaining power for prosecutors. Query whether the majority’s argument weakens if variance rates climb both in number and, most importantly, length.

    Third, while I don’t think this opinion is going to have huge practical effects on federal sentencing because the Seventh Circuit was an outlier (and there is likely harmless error in many of those cases), the opinion may have a lot of rhetorical value. Defendants basically got a win-win here—assurance that they will be sentenced under the most favorable Guidelines per the majority and lots of juicy language to quote when they argue for a variance per the dissent. I would expect to see Peugh cited in a lot of future federal sentencing memos.

    Judges, however, may have gotten the short end of the stick because they now face even more complexity when they determine sentences (a trend that has continued since Booker). Before Puegh, they had to calculate the Guidelines, then decide on departures, then consider a 3553(a) variance (seven factors; four purposes of punishment). Now, Peugh suggests courts should also consider how the evolution of the Guideline at issue (pre- and post-offense) weighs on the sentence. That could mean at least two more Guideline calculations (1987 version if Doug Berman is your defense counsel and the current, harsher version of the Guidelines if you are facing a prosecutor who reads this blog), but it could mean even more (what about Guideline ranges before and after major changes by the Commission, e.g., before and after SOX or Dodd-Frank, to demonstrate that evolution?).

    Arbitration uber alles in the Supreme Court

    by  • June 21, 2013 • Faculty Commentary • 0 Comments

    By Carolyn Shapiro

    This week’s opinion in American Express Co. v. Italian Colors Restaurant is a particularly bad decision for consumers, employees, and small businesses—basically anyone who does business with large and powerful entities. The issue in American Express, on first glance, might seem rather esoteric and technical. So before I delve into this particular case, I’m going to provide some background.

    (1)   Back in the 1920s, Congress passed a statute called the Federal Arbitration Act (FAA), prompted by courts’ reluctance to enforce arbitration clauses in contracts. Arbitration clauses are contractual provisions that obligate the parties to take any contractual disputes to arbitration instead of to court.

    (2)   The FAA provides, in relevant part:

    A written provision in any maritime transaction or contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter aris­ing out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. 9 U.S.C. § 2.

    In the 1920s, when the FAA was enacted, everyone believed that congressional power to regulate commerce was limited (basically) to regulation of the actual movement of goods between states. So, the number of contracts that the FAA was understood to address was relatively small. Beginning with the New Deal era, however, congressional power to regulate interstate commerce is understood to be extremely broad; basically anything that affects interstate commerce is within congressional jurisdiction.

    Here is a concrete example: when the FAA was enacted, it would have regulated a contract between a manufacturer in, say, Nebraska, to ship goods to a store in, say, Illinois. But it would not have reached any of the Illinois store’s sales within Illinois. Today, on the other hand, the Illinois store’s local sales would be understood to affect interstate commerce and so if the store incorporated an arbitration clause into its sales agreements, it would almost certainly be enforced. (more…)

    Weekly Faculty in the News, 6/20

    by  • June 20, 2013 • Faculty in the News • 0 Comments

    A roundup of faculty appearances in news sources and media from the last week.

    6/14 – The AP profiled Professor Jerry Goldman and the Oyez Project, Goldman’s multimedia archive devoted to the Supreme Court of the United States (“Supreme Court archive has about 14K hours of audio“). The story was picked up by numerous news sources.

    6/16 – Professor Lori Andrews authored an op-ed for the Chicago Tribune in which she argues why the U.S. Supreme Court was right to rule against the patentability of human genes in last week’s Association of Molecular Pathology v. Myriad Genetics decision (“My body, my property“). Read an excerpt below:

    “In [the Myriad] case, I filed a friend-of-the-court brief on behalf of medical organizations, including the Chicago-based American Medical Association, showing that human gene patents interfered with research and patient care. In a previous case, I challenged a hospital that patented the genes of a suburban Chicago family and then used the patent to stop a free testing program. There’s more at stake in these cases than just an esoteric slice of intellectual property law. Commercialization of human material can get in the way of life-saving diagnosis and research. And it affects everyone.” (continue reading)

    What Are They Doing? Why Does It Take So Long?

    by  • June 19, 2013 • Faculty Commentary • 0 Comments

    By Carolyn Shapiro [via Oyez/ISCOTUSnow]

    As we all wait for decisions in this Term’s major cases, people may wonder what is taking so long and why the big cases are so often the last cases to be announced. The short answer is that the big cases are also those in which there is most likely to be fairly strong disagreement among the justices, meaning that there are likely to be multiple opinions—and when that happens, the process can take some time. Here’s a quick primer on what happens:

    Each week of argument, the justices meet in Conference to discuss the cases. They take a tentative vote at that point. After the Conference, the Chief Justice assigns the majority opinion in each case in which he is on the winning side. In any other cases, the senior justice in the majority assigns the opinion.

    In each case, the majority opinion author then begins drafting. Occasionally, a dissenter will start drafting then as well, particularly if the dissenter thinks there is some chance of getting another justice to change his or her mind. (This does happen, although not often.) But more often, the dissents—and concurrences—aren’t written until after the first draft of the majority opinion circulates to the whole Court. At that point all the opinion writers start revising their opinions in response to each other. This is why you often see majority opinions referring to the dissent, and vice versa. Because the justices are essentially having an argument on paper, the opinions go back and forth until everyone is satisfied that they have fully had their say.

    This process is what is undoubtedly happening now in the big cases that are yet to be announced. In addition to that, except for Fisher (the affirmative action case), the other big cases were all argued relatively recently. Shelby County (the Voting Rights Act case) was argued in February and the gay marriage cases (DOMA and Prop 8) were not argued until the end of March.

    As of this week, the Court is announcing opinions twice a week—on Mondays and Thursdays. The ISCOTUSnow app will have the opinions available as soon as possible after they are announced.