Weekly Roundup—April 15, 2016

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Confirmation, HBO’s new movie on the controversy surrounding Justice Thomas’ appointment to the Supreme Court, airs tomorrow. Back in 1991, Nina Totenberg broke the story of Anita Hill’s sexual harassment accusations on NPR. She joined NPR’s politics podcast to recount her experience. Check out the New York Times review of the movie here.

On Tuesday, supplemental briefs were filed on behalf of both parties in the Zubik v. Burwell case. The Court heard arguments in the case involving contraceptive-coverage and religious liberty last month, but, in an unusual move, the justices then requested more information from the parties. Scotusblog examines this unusual request here.

What’s the latest on Supreme Court nominee Merrick Garland? “Republican senators meeting with Judge Merrick B. Garland seem to take quite a long time to simply say ‘no.’” The Washington Post explains more about Garland’s Capitol Hill introductions this past week. Meanwhile, the ABA moves on with its evaluation of the nominee, conducting interviews with colleagues, lawyers who have argued before him, and the nominee himself, reports Tony Mauro.

And looking ahead to next week’s big case, previews on United States v. Texas, the challenge to President Obama’s immigration order, which the Court will hear on Monday, can be found at CNN, Bloomberg, and SCOTUSBlog. Reuters and HuffPost each have stories about those who would be most affected by the Court’s ruling in the case.

What Happened in Evenwel?

The big surprise from Monday’s Supreme Court decision in Evenwel v. Abbott was not how the Court ruled, but that it was unanimous in doing so. The case involved the way to measure population in applying the Court’s longstanding “one person one vote” standard when drawing voter districts. The basic question: should voting districts be apportioned by the number of eligible voters or by total population? The Court had never squarely answered this question.  At oral arguments last December, observers read the justices as closely divided. The challengers appeared to have a strong case. In the end, however, this was not so. Although there was some disagreement among the justices, they spoke as one in rejecting the challenger’s claim that the Constitution required apportionment to be based on eligible voters.

So what happened? Here are two hypotheses that attempt to explain why such a deeply divided Court produced no dissents in this case.

(1) Practicalities. The challengers in this case argued that when measuring voting districts under the one person, one vote standard, only eligible voters should be counted. But the relatively well entrenched norm today is to measure total residents. Some scholars have questioned whether it would even be feasible to gather accurate measures of eligible voters.  Justice Ginsburg, writing for the majority noted that to adopt voter-eligible apportionment would “upset a well-functioning approach to districting that all 50 States and countless local jurisdictions have followed for decades, even centuries.” The disruption costs and practical impediments likely pulled on the Court, even those justices who appeared sympathetic to the challengers’ claim. 

(2) Federalism. The Court did not rule that apportionment had to be done one way or another. Ginsburg’s opinion for the Court held that there was no constitutional requirement that it be based on eligible voters. The selection of what measure to use is not dictated by the Court; it is left to the states. This is a resolution that aligns with the federalism sentiments conservatives on the Court tend to embrace. By leaving the issue to the states, Justice Ginsburg probably envisions a continuation of the status quo–states, because of the practicality concerns mentioned above, will continue to rely on total population. But Justice Alito, who appears more sympathetic to the eligible-voter standard, may envision that states will respond by moving away from the total-population standard. This decision, then, left the door open for the Court to return to this issue in the future. In his concurrence, Justice Alito wrote that the Court can decide if a state is allowed to use some measure other than total population “if and when” a districting plan of that nature arises.

“By leaving open the possibility of using the population of voters as a redistricting measure in the future, Ginsburg may have won over the court’s conservative justices,” writes The National Law Journal. “The door is now wide open,” write the editors or USA Today, “for Republican legislators to change state or local redistricting policy to include only voters, and send the question back to the high court.” If indeed this issue returns to the Supreme Court at a future day, this time in the form of a constitutional challenge to a state that chooses to rely on eligible voters in measuring voter districts, then the unanimity of Evenwel is unlikely to be replicated.

Weekly Roundup, April 1, 2016

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Check out the latest reporting and opinion on Obama’s Merrick Garland nomination from Slate, The Washington Post, NPR, Politico, USA Today, and Vox.

George Mason University voted to rename its law school after Justice Antonin Scalia on Thursday afternoon. News reports from the Washington Post, Above the Law, and Wall Street Journal.

Oral arguments in Zubik v. Burwell, the latest religious liberty challenge to the ACA’s contraception coverage requirement, generated a predictably heated debate. “At its core, this case . . . is a case about religion’s role in civil society,” wrote Linda Greenhouse for the New York Times. Further coverage from The Atlantic, NPR and The Economist.

Is Puerto Rico its own sovereign state? This question is at the heart of the challenge in Puerto Rico v. Sanchez Valle. Read more on The Atlantic.

Justice O’Connor’s animated civics game Win the White House teaches students “to compete civilly against opponents with divergent views on issues like immigration and gun control.” Reporting from the New York Times.

On Tuesday, Friedrichs v. California Teachers Association was left in a 4-4 tie at the Supreme Court, leaving in place the appeals court ruling and snatching away what “right to work” advocates hoped would be a major blow to labor unions. Reporting from BloombergView, Reuters, and The Wall Street Journal.

For more on the challenges of an 8-Justice Court, see Richard Wolf’s article in USA Today. He write: “Change has come to the high court, and the justices are dealing with it in fits and starts.”

Weekly Roundup, March 25, 2016

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The Supreme Court overturned the conviction of a woman for carrying a stun gun to defend against an abusive former partner in Caetano v. Massachusetts. Reporting from Slate and NPR, with a general roundup of March 22nd’s orders from The New York Times.

In Tyson Foods, Inc. v. Bouaphakeo, the Court sided with the workers who sought overtime pay for putting on and taking off protective gear for their “grueling and dangerous” work. Reporting from The National Law Journal, Forbes, The New York Times and AP.

Various news outlets have begun to research President Obama’s Supreme Court nominee Merrick Garland. The New York Times examines Garland’s record and style, while The Hill looks at some of his most intriguing cases. The Washington Post features impressions of Garland from schoolkids he tutors. Politico wrote that Garland has written “few seminal opinions” that encapsulate his legal ideology—and “that may be a good thing.”

Orrin Hatch continues his campaign to defend Senate Republican refusal to hold hearings for any Obama nominee. He writes on Bloomberg View that “[b]y seeking to thrust a confirmation battle into the middle of a particularly bitter presidential election, President Barack Obama carelessly risks further polarizing and politicizing the confirmation process, and further damaging the integrity and public standing of the Supreme Court as an institution.”

For a useful history lesson on the Supreme Court nomination process, check out this piece on Slate. (Short version: It’s political and always has been.)

What has been the impact of the Texas’s abortion regulation that the Court is currently reviewing? The New York Times and Think Progress report.

In this term’s challenge to the Affordable Care Act, the Court heard arguments on Wednesday in Zubik v. Burwell, brought by religious non-profit groups who don’t want to provide access to birth control for female employees and students, as required under the ACA. Writes Dahlia Lithwick on Slate: “In case you believed the court’s conservatives have maybe come around on Obamacare—well, no. They still hate it.” Additional commentary from The Economist and Bill of Health Blog.

Weekly Roundup, March 18, 2016

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On Wednesday, President Obama nominated Merrick Garland for the Supreme Court vacancy. The White House launched a twitter account (@SCOTUSnom) to push the case for Garland. Coverage from USA Today, Slate, the Los Angeles Times, Reuters, and the New Yorker. In an interview with NPR, Obama called Garland “one of the best judges not just in the country, but of his generation.”

Senate Republicans have not wavered from their promise to block any consideration for Obama’s nominee. Reporting from the Wall Street Journal, the Washington Post, and Roll Call. Jason Steed at The Huffington Post recommended that Republicans should “take the best they can get” and confirm Garland.

Robert Sangers of Death Penalty Focus interviewed retired Justice Stevens on why he has come to believe we should abolish the death penalty.

Anticipating further developments in the battle between the FBI and Apple over Apple’s refusal to unlock the San Bernardino shooter’s iPhone, NPR reviewed the Supreme Court’s past opinions on phone privacy.

A piece on Hong Kong Lawyer reminisced on a visit the Late Justice Scalia made to Hong Kong in February 2016.

Weekly Roundup, March 11, 2016

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What did Justice Kennedy whisper to Justice Roberts? The National Law Journal wrote about the history of the Justices’ private bench conversations.

At ISCOTUSnow, Chris Schmidt looked at the usually silent Justice Thomas’s questions from the bench last week and a few of his other contributions to oral argument.

In an unsigned opinion, the Court overturned an Alabama Supreme Court ruling and held that states must recognize an adoption by a same-sex parent that occurred in another state. Reporting from SCOTUSblog, Vox, USA Today, and The New York Times. The Atlantic called it a “Writ of Duh.”

Senate Republicans remain unbending in their opposition to considering any potential nominees for Justice Scalia’s seat.  “The partisan divide . . . has all but guaranteed an eight-justice court for the next year,” reported The National Law Journal. “The significance of the Senate’s action lies in reminding us that the Supreme Court is not an ordinary court but a political court,” Judge Richard Posner wrote on The Washington Post. Further reporting from Bloomberg Politics, The Originalism Blog, CNN, and Politico.

Justice Ginsburg is publishing a book, “My Own Words,” in January 2017. The publisher describes it as “a selection of writings and speeches by Justice Ginsburg on wide-ranging topics, including gender equality, the workways of the Supreme Court, on being Jewish, on law and lawyers in opera, and on the value of looking beyond U.S. shores when interpreting the U.S. Constitution.”

On Friday, The Supreme Court blocked a Louisiana law that, according to its critics, would leave the state with just a single abortion clinic. Reporting from the New York Times and The Washington Post.

Justice Thomas Asks a Question!

After ten years without asking a question at oral argument, Justice Clarence Thomas broke his silence. His question came last week in Voisine v. United States, a case that considered whether a domestic assault conviction qualifies as a federal “misdemeanor crime of domestic violence,” which in many states leads to a ban on firearms possession. (For more details on the case, check out SCOTUSBlog’s coverage.)

The assistant to the U.S. Solicitor General Ilana H. Eisenstein faced an unusually quiet bench. Just as she was prepared to finish up her argument, Justice Thomas’s deep voice rumbled through the courtroom. “Can you think of another constitutional right that can be suspended based upon a misdemeanor violation of a State law?” he asked. Regular courtwatchers in the audience were startled. A sleepy morning at the Court suddenly got interesting. “Everyone shifted forward in their seats and there was a look of shock on many spectators’ faces,” reported Mark Joseph Stern in Slate. All of a sudden the most reticent of justices was suddenly channeling the spirit of his recently departed, unapologetically vocal colleague, as he relentlessly pressed Eisenstein.  At one point he even seemed to make a veiled reference to the possible implications of replacing his frequent ally Justice Scalia with a more liberal justice, when he described the right to possess a gun as a constitutional right “at least as of now.” Justice Thomas  followed up with an additional eight questions, in an exchange that lasted for six minutes. According to Adam Liptak in the New York Times, Thomas emerged the victor of this particular exchange.

Listen to the full exchange via Oyez here:

The full transcript is available here.

Justice Thomas, who was appointed to the Court in 1991, was never a particularly vocal presence in oral arguments, but he would contribute occasionally to the discussion. His most noted comments came in 2002 in oral arguments in Virginia v. Black. The case considered whether the criminalization of the burning of a cross violated the First Amendment.  According to the account of New York Times reporter Linda Greenhouse, “it was not clear how the court was inclined to decide it— until Justice Clarence Thomas spoke.” Thomas’ brief comments transfixed the courtroom. A burning cross is “unlike any symbol in our society,’” its only purpose “to terrorize a population,” said Justice Thomas, the only African American on the Court. “The other justices gave him rapt attention” as he spoke, reported Greenhouse. “Afterward, the court’s mood appeared to have changed. While the justices had earlier appeared somewhat doubtful of the Virginia statute’s constitutionality, they now seemed quite convinced that they could uphold it as consistent with the First Amendment.”

Listen to the exchange here:

But between 2006 and last week, Thomas offered nary a question during oral argument. Thomas has offered varying explanations for his silence, the most common being that he feels the bench asks too many questions already and he would rather allow the attorneys to make their arguments. Some, most notably Jeffrey Toobin,  have criticized Thomas’ silence as indicating a problematic detachment from the proceedings of the Court.   The only comment he made during oral arguments during this period was a joke he cracked in 2013 during arguments in a case called Boyer v. Louisiana. There was considerable debate about what exactly Thomas said, but it was eventually confirmed to be a joke about the quality (or lack thereof) of a law degree from Harvard.  

Listen to it here:

Justice Thomas’ contributions, while rare, have added much to the dynamic of oral arguments at the High Court. Now the question is whether, with Justice Scalia gone, Justice Thomas will find more opportunities to step into the fray of oral argument, like he did last week.

Weekly Roundup, March 4, 2016

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At Monday’s oral argument, Justice Clarence Thomas asked questions from the bench for the first time in ten years. Reactions from NPR, The Washington Post, USA Today, and The New York Times.

The public deserves a court that is more transparent and accountable,” wrote BloombergView’s Editorial Board, in a critique of the Supreme Court’s lack of a code-of-conduct policy for Justices.

The lights went out at the Court On Tuesday during oral arguments in Nichols v. United States, a case about sex offenders traveling abroad. Analysis on the case can be found at SCOTUSBlog.

Discussions on the implications of Scalia’s death continue. The LA Times did a retrospective of the last great clash between president and senate over a Supreme Court nomination during the Reagan Administration. The Guardian put forward the possibility of a Republican nomination, while The Economist discussed the damage the Republicans are doing “to the institution of the Supreme Court as an arbiter of the nation’s disputes and to the American system of justice itself.” CNN discussed its own poll that showed most Americans want to see Obama fill the vacancy with a nomination, but they are divided on what ideological leaning they’d like that nominee to have.

Tuesday, the Justices released two opinions on Lockhart v. United States and Gobeille v. Liberty Mutual Insurance Co.. Commentary on Lockhart from Bloomberg View, and Gobeille on Forbes. Politico covered both.

The Court heard one of the most anticipated cases of the Term on Wednesday in Whole Woman’s Health v. Hellerstedt, a challenge to Texas’s new abortion regulations. The LA Times wrote that without Justice Antonin Scalia, “it is highly doubtful the Texas case will yield a broad conservative ruling that gives states a green light to adopt ever-stricter restrictions on abortion.“ Previews of the issues can be found at Fox News, The Atlantic, The New York Times, and the ISCOTUS blog. The Washington Post highlighted an interview with Justice Ginsburg on how she thought landmark abortion case Roe v. Wade should have gone differently. At Slate, Dahlia Lithwick argued that the powerful presence of three female justices in this case showed that “the gender playing field at the high court was finally leveled.” Other post-argument analysis at USAToday, New York Times,  and NPR.

Abortion Back at the Supreme Court—What to Read

Today we hear oral arguments in Whole Woman’s Health v. Hellerstedt, the Supreme Court’s most significant abortion rights case since Planned Parenthood v. Casey (1992). At issue is a Texas law that requires abortion providers to comply with the same health regulations that apply to ambulatory surgical centers and that requires doctors performing abortions to have admitting privileges at a nearby hospital. As we await reports from the Court, here are some readings that illuminate the issues.

Check out Health Affairs Blog for a detailed critical analysis of the effects these regulations would have on access to abortion in Texas. The conclusion: not only would the law do little to make abortions safer, but, by reducing the number of abortion providers, it would have potential harmful health effects.

At the Atlantic, Garrett Epps argues that precedent requires the Court to strike down these abortion regulations. The 5th Circuit ruling that upheld the Texas regulations, he argues, “verges on old-fashioned defiance” of Supreme Court precedent.

On the other side, turn to the Washington Examiner to read the president of Students for Life of America defend the Texas regulations as a necessary fix for a an area of health services rife with safety issues.

Which way will the Court go? For some efforts to get into the head of the likely swing vote in the case, Justice Kennedy, go here and here.

The New York Times published a fascinating profile of the lawyers who will argue the case before the Supreme Court. The Times also has a helpful Q&A on the abortion case.

Justice Scalia and the Transformation of First Amendment Jurisprudence

Post by Steven Heyman, Professor of Law at IIT Chicago-Kent School of Law. 

Antonin Scalia served on the federal bench for over three decades, first on the U.S. Court of Appeals for the District of Columbia Circuit (1982-86) and then on the U.S. Supreme Court (1986-2016).  This period coincided with a remarkable shift in our nation’s ongoing debate over the meaning of the First Amendment.  Traditionally, liberals defended a broad understanding of the constitutional freedoms of speech, press, and association, while conservatives believed that those freedoms were subject to legal regulation in the interests of social order, public morality, and national security.  During the 1980s, however, some scholars and activists on the left started to propose restrictions on racist hate speech as well as violent and degrading pornography, on the ground that these forms of expression undermine the equality of women and minorities.  In response, some conservatives began to develop a more libertarian position, which appealed to the First Amendment as a bulwark against what they regarded as the dangers of political correctness.  In recent years, this conservative-libertarian approach has become one of the most important currents in First Amendment law.  The federal courts have increasingly used this approach to strike down regulations that seek to promote liberal or progressive values.

Justice Scalia played a leading role in this transformation of First Amendment jurisprudence.  In R.A.V. v. City of St. Paul (1992), a teenager who burned a cross in an African-American family’s yard was charged with violating a city ordinance that prohibited the display of burning crosses, Nazi swastikas, and other symbols that one knows or reasonably should know “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.”  Although this ordinance seemed overly broad on its face, the Minnesota Supreme Court interpreted it in a narrow way to apply only to symbolic conduct that fell within the definition of “fighting words” or other categories of expression that have long been held unprotected by the First Amendment.  When interpreted in this way, the ordinance appeared to be constitutional, but the US Supreme Court struck it down.  In an opinion for five Justices, Scalia held that although the government may ban all fighting words, it may not ban only those fighting words that are based on race, religion, or gender, for this sort of “selectivity” raises the specter that the government is seeking to impose an ideological orthodoxy on citizens by punishing the expression of racist views.  

In this way, Scalia took the position that even very narrow forms of hate speech regulation violate the First Amendment.  To reach this result, he had to dramatically expand existing First Amendment doctrine:  while the Court had long held that the government generally may not discriminate between different forms of speech that are protected by the First Amendment, it had never before extended that rule to unprotected categories of speech such as fighting words.  Thus, it was hardly surprising that Scalia’s ruling was deeply controversial.  As several liberal Justices contended in R.A.V., fighting words are unprotected because they convey a message of “imminent violence,” and this “message . . . is at its ugliest when directed against groups that have long been the targets of discrimination.”

Scalia’s approach to the issue of campaign finance reform was no less controversial.  In Austin v. Michigan State Chamber of Commerce (1990), Justice Thurgood Marshall ruled that the government could ban electoral expenditures by business corporations in order to prevent them from using “resources amassed in the economic marketplace to obtain an unfair advantage in the political marketplace.”  In a characteristically pungent dissent, Scalia contended that this decision was based on an “Orwellian” view “that too much speech is an evil that the democratic majority can proscribe.”  Scalia’s position triumphed two decades later in Citizens United v. Federal Election Commission (2010).  In that case, the five conservatives declared that bans on corporate electoral speech constituted an impermissible effort to “silence entities whose voices the Government deems to be suspect.”  Scalia contributed a concurring opinion that defended the majority’s position on originalist grounds.  

In both R.A.V. and the campaign finance cases, Scalia used the First Amendment to oppose speech regulations that came from the left.  The same is true of his opinions in cases such as Hill v. Colorado (2000) and McCullen v. Coakley (2014), in which he condemned laws that restricted the efforts of pro-life activists to dissuade women from entering abortion clinics.  Similarly, in cases like Rosenberger v. University of Virginia (1995) and Christian Legal Society v. Martinez (2010), he joined with conservative colleagues to defend conservative religious expression on campus.  

Yet Scalia’s libertarian approach to the  First Amendment was not a narrowly political one, but a more principled stance that made him skeptical of many restrictions on the content of speech, regardless of their ideological origin.  For example, in Brown v. Entertainment Merchants Association (2011), he invalidated a ban on the sale of violent video games to minors, writing a five-to-four opinion that was joined by most of the liberal Justices.  Most strikingly, he provided a decisive vote for the Court’s five-to-four decision in Texas v. Johnson (1989), in which Justice William J. Brennan, Jr. ruled that flag burning was entitled to constitutional protection.  As Scalia later explained on the lecture circuit, while he personally wished that he could put “scruffy, bearded, sandal-wearing” flag-burners in jail, his understanding of the First Amendment did not permit him to do so.

This is not to say that on Scalia’s view the First Amendment protected all speech.  Relying on original understanding and tradition, he accepted the Court’s longstanding position that some narrowly defined categories of expression could be restricted in the name of “social order and morality.”  On these grounds, Scalia maintained that the Constitution provided little protection to sexually explicit expression — such as nude dancing and internet pornography – even when such expression did not meet the Court’s legal standard for obscenity.  Moreover, his conservative-libertarian approach was based on a sharp distinction between the sphere of private liberty and the sphere of government authority.  Thus, at the same time that he contended that the government could rarely restrict speech by private individuals, he insisted that it had far-reaching power to decide what speech to fund (as by denying federal grants to artists to produce indecent or sacrilegious work), as well as to control speech by individuals within public institutions, such as prisoners and public employees. In all of these ways, Scalia profoundly influenced our legal system’s understanding of the First Amendment freedom of expression, and his legacy is a complex and controversial one.