All posts by Chris Schmidt

A Look Back—Justice Sotomayor’s First Oral Dissent

The Supreme Court has finally released—and Oyez has made available—audio recordings of last Term’s opinion announcements. Most of these announcements are summaries of majority opinions, but there are also a few oral dissents. Standard practice on the Supreme Court is for only the author of the opinion of the Court to read a summary of that opinion from the bench. The justices typically do not also summarize their dissents or concurrences. Yet on occasion—usually a handful of times a Term—a justice will decide to read a dissent from the bench. The justices recognize oral dissents as a way to amplify the dissenter’s displeasure with the majority holding. They often explain that in reading their dissents from the bench they seek to draw increased attention to their position.

In a Term with numerous important decisions featuring oral dissents (more on those in subsequent postings), the most notable was surely the dissent that Justice Sotomayor read in the Term’s affirmative action case, Schuette v. Coalition to Defend Affirmative Action. In her five years on the Supreme Court, Sotomayor had never before read a dissent from the bench. Indeed, she had said that she didn’t think much of the practice, once dismissing oral dissents as “entertainment for the press.” She noted her frustration when “listening to my colleagues read their summary of our opinion”: “I’m saying, ‘That’s not what the case is really about; that’s not what it said.’”

Sotomayor said she changed her mind about oral dissents because of a discussion with Linda Greenhouse, in which the ex-New York Times Supreme Court reporter convinced the justice of their potential value. She chose Shuette, a case in which a six-justice majority upheld Michigan’s ban on racial preferences in its public universities, as the occasion for her first bench dissent. When Justice Sotomayor first read her dissent, I posted a discussion on inaugural oral dissents in which I wrote:

That Justice Sotomayor chose this particular case for her first oral dissent makes sense. As various media accounts have noted, she has been outspoken in her support for affirmative action programs. In her memoir, Justice Sotomayor recognized that affirmative action played a critical role in her own life. During oral arguments in the Schuette case, she was particularly aggressive in challenging the lawyer defending the affirmative action ban. Her lengthy written dissent, which was joined by Justice Ginsberg, is impassioned and direct. Considering all this, it would be more surprising if she had chosen not to announce her dissent from the bench.

Now we can actually listen to what she said. Justice Sotomayor’s announcement runs about twelve minutes. She reads her statement in a tone that is careful, controlled, as well as clearly frustrated with the direction the Court has taken. She draws the language of her bench dissent from excerpts of her written opinion, with some reordering of arguments and minor editing. The bulk of the statement is a summary of why she feels the “political process” precedents of Hunter v. Erickson, 393 U. S. 385 (1969) and Washington v. Seattle School Dist. No. 1, 458 U. S. 457 (1982) should control in this case, and of why Michigan voters’ effort to amend their constitution to prohibit racial preferences in higher education should be struck down as a violation of the Fourteenth Amendment’s Equal Protection Clause.

Toward the end of her bench announcement (at about 9:40 in the audio), however, she shifts gears, arguing why she believes there is still a need for race-conscious admissions policies in universities. Here she reads excerpts from the most controversial portion of her written dissent. This is the section in which she challenges her colleagues for “question[ing] the wisdom of using race sensitive admissions policies in the first place.” This is the section that moved Chief Justice Roberts to write a concurring opinion specifically to rebut her characterization of the majority’s position.

To challenge the wisdom of race-conscious admissions policies, Justice Sotomayor argues, ignores the value of diversity in higher education. At this point she diverges from her the language written opinion, toning down her accusations against her colleagues. Her written opinion reads as follows: To question “race-sensitive admissions policies … ignores the importance of diversity in institutions of higher education and reveals how little my colleagues understand about the reality of race in America.” Translated into her bench dissent, she said that to question race-sensitive admissions policies “reveals a fundamental understanding about the reality of race in American society.” (I assume she meant to say “misunderstanding about the reality of race in society,” which would make more sense. Her misstatement or self-edit might indicate that throwing barbs at colleagues is a bit harder to do when they’re sitting right next to you. According to Adam Liptak of the New York Times, “[s]everal of her colleagues seemed tense, impatient and grim as she spoke.”) She continues (again toning down slightly the language of the written dissent): “In the end, my colleagues believe that we should leave race out of the constitutional picture entirely and let the voters sort it out. This reasoning ignores the stark reality, all too apparent in communities throughout the country: that race still matters.”

She then concludes her inaugural oral dissent by reading this impassioned language from the text of her written dissent:

The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter, and that it has influenced and continues to influence voters’ decisions to deny minorities meaningful and equal access to the political process.

Religious Rights and Bearded Prisoners

Tomorrow the Supreme Court will hear oral arguments in an intriguing religious freedom case brought by Gregory Holt.

Holt is in an Arkansas prison, serving a life sentence for burglary and domestic battery. While in prison, Holt converted to Islam, took the name Abdul Maalik Muhammad, and, in accordance with his religious beliefs, sought to grow a beard. Arkansas prison regulations forbid facial hair other than a mustache. By refusing to allow him to grow a half-inch beard, Holt argues, prison authorities violate his rights under a federal law designed to protect religious exercise for prisoners. Arkansas counters that their policy is designed to prevent inmates from hiding contraband and to protect security. The courts, Arkansas argues, should defer to the judgment of the state’s prison officials.

Two factors make this case make particularly noteworthy. First, Holt wrote, by hand, his own appeal to the Supreme Court. He filed his petition “in forma pauperis,” an often used (particularly by prisoners) but almost never successful path to Supreme Court review that allows impoverished individuals to submit an appeal without paying the standard filing fees.

(Most famously, Clarence Gideon wrote his own in forma pauperis petition from a Florida prison, setting in motion events that led to the landmark 1963 Court ruling in Gideon v. Wainwright, which held that states are required to provide a lawyer for felony defendants who are unable to pay for their own lawyer.)

In fourteen painstakingly careful, handwritten pages, Holt argued why the Supreme Court should take his case. He raised religious freedom claims under both federal law and the First Amendment. The refusal of Arkansas prison authorities to grant religious exemptions to their no-beard policy is “intolerably oppressive and force[s] inmates to either obey their religious beliefs and face disciplinary action on the one hand or violate their beliefs in order to acquiesce with the grooming policy.” Holt noted that federal and other state prison policies achieve the same security goals without such a restrictive grooming policy. He also pointed out that Arkansas allows prisoners with “certain dermatological conditions” to grow a quarter inch beard, and therefore “it is not too far of a stretch to allow 1/2 inch beards for religious purposes.”

Holt concluded his petition by condemning Arkansas prison officials for being particularly restrictive toward the practice of Islam by inmates. According to Holt, his case raises “a matter of grave importance, pitting the right of Muslim inmates against a system that is hostile to these views.” He noted that “There are no group worship services, sajadahs (prayer rugs) are not allowed, there is extremely limited access to an Islamic spiritual advisor constituting no real meaningful access, Islamic publications are limited and Islamic catalogs are classified as books that, should they exceed the 10 book total limit, are subject to confiscation and there are no alternatives to religious instruction.” Growing a beard, Holt suggested, would provide “a suitable alternative form of religious expression.”

When the Supreme Court agreed to hear his case, it assigned him an attorney. In this case, Holt was assigned Douglas Laycock, a professor at the University of Virginia and one of the country’s leading religious rights lawyers (he appeared before the Court last term in Town of Greece v. Galloway).

The second intriguing element of this case is that it brings to the Supreme Court a religious liberty claim with powerful echoes of last term’s controversial Hobby Lobby decision.

When it accepted his case for review, the Supreme Court also narrowed the scope of Holt’s appeal. The Court will not consider his First Amendment claim. The justices will limit their review to his statutory claim, which was based on the Religious Land Use and Institutionalized Persons Act (RLUIPA), a law Congress passed in 2000. RLUIPA prohibits government policies that “impose[] a substantial burden on the religious exercise of a person residing in or confined to an institution,” unless the government can show that the policy is the least restrictive way of advancing a “compelling governmental interest.”

For followers of the Supreme Court, this legal language should sound familiar: it is the exact same test the Court applied in its controversial Hobby Lobby decision from last term. Both the federal law that Hobby Lobby successfully used to challenge the Affordable Care Act’s contraception mandate (the Religious Freedom Restoration Act) and the federal law under which Holt seeks protection were congressional responses to a 1990 Supreme Court decision that made free exercise claims more difficult to win under the First Amendment.

One key difference this time around, however, is that Holt has the federal government on his side. The Justice Department submitted a brief in the case supporting Holt.



Same-Sex Marriage Issue on Hold at the Supreme Court—For Now

In a turn of events that caught many Court-watchers off guard, the Supreme Court today denied review of the seven pending cases challenging state prohibitions on same-sex marriages. In recent weeks, a consensus seemed to be emerging among commentators that this was the Term in which the Court would return to the same-sex marriage fray—and this time the justices would squarely face the big issue: whether the Constitution required states to recognize same-sex marriages. This prediction may still come true, but now it all seems to depend on what happens in the Sixth Circuit Court of Appeals, which is currently deliberating on challenges to same-sex marriage bans in four states (Kentucky, Michigan, Ohio, and Tennessee). All the cases the Court refused to review involved federal appeals courts that had struck down same-sex marriage bans. If the Sixth Circuit breaks from this pattern and upholds a same-sex marriage ban, we will have a “circuit split,” which generally ensures that the Supreme Court will feel compelled to step in and decide the issue.

So what is the three-judge Sixth Circuit panel likely to do? Those who listened to oral arguments in the cases saw a closely divided panel, with most predicting the court would uphold the same-sex marriage prohibitions. Whether today’s denials of certiorari at the Supreme Court might influence the judges on the Sixth Circuit is anyone’s guess. But what does seem pretty certain in light of today’s events at the Supreme Court is that a Sixth Circuit decision upholding gay marriage bans would be short-lived. The Supreme Court will surely overturn any appeals court ruling that breaks from the pattern that it has tacitly, but clearly, approved of today.

Is Same-Sex Marriage Coming Back to the Supreme Court This Term?

We know same-sex marriage is coming back to the Supreme Court. What we don’t know is when.

The lineup of cases for the Court’s upcoming term is rather light on cases that really capture public attention. There are plenty of interesting cases on tap, but no real blockbusters. If the justices are interested in livening up a relatively quiet term at the Court, adding a same-sex marriage case would do the trick. But do the justices—or at least the four justices required to grant cert—feel the time is at hand to take on this issue again?

At this point, we’re all reading the tea leaves.

Since it’s likely that Justice Ginsburg will play a particularly influential role in deciding when the justices take up the issue, her recent comments have been the object of much attention. For a while, she seemed to be signaling her concern that the Court needed to be cautious on the issue. But this summer she gave an interview in which she was almost enthusiastic about the possibility of the Court taking on gay marriage. The Court won’t “duck” the issue as they did interracial marriage in the 1960s, she explained, predicting that the Court will decide the issue by June 2016, perhaps sooner. Recently, however, Justice Ginsburg seemed to back off a bit, suggesting that the Court should wait for a split among federal appeals courts. (All the cases currently pending before the Supreme Court involve appeals of rulings that have struck down gay marriage bans.) Until then, there is “no need for us to rush.” She said that people should keep an eye on the Sixth Circuit, which will soon issue a ruling in a same-sex marriage challenge.

The Supreme Court currently has seven cases from three different federal circuit courts from which to choose. These cases involve gay marriage bans in five different states (Virginia, Utah, Oklahoma, Wisconsin and Indiana). Both winning and losing lawyers in these cases are asking for Supreme Court review.

On Thursday the Court added a number of new cases to the docket, but no gay marriage cases were among them. Some commentators are still confident that this is the term for the big gay marriage case. And so we wait.

Justice Sotomayor’s First Oral Dissent

On Tuesday, for the first time in her five years on the Supreme Court, Justice Sotomayor read a dissent from the bench. This was in Schuette v. Coalition to Defend Affirmative Action, the case in which the six-justice majority upheld Michigan’s ban on racial preferences in its public universities. Oral dissents, as a relatively unusual occurrence, can generate increased attention to a dissent. And a justice’s first oral dissent can be a particularly notable event. For example:

  • Justice Scalia’s first oral dissent came in Morrison v. Olson (1988), a 7-1 ruling in which the Court upheld the law creating an independent counsel. Justice Scalia recently referred to this decision upholding “a terrible erosion of presidential power” as his most “wrenching” case.
  • Justice Breyer’s first bench dissent came in United States v. Lopez (1995), decided during his first term on the Court. In Lopez the Court, for the first time since the New Deal, struck down a federal law as beyond the reach of the Commerce Clause.
  • Justice Thomas liked the idea of an inaugural oral dissent so much that he tried to do it twice. His first bench dissent came in Stenberg v. Carhart (2000), in which the majority struck down Nebraska’s “partial-birth abortion” ban. Then, six years later, he opened his oral dissent in Hamdan v. Rumsfeld, a case involving the rights of prisoners held at Guantanamo, by announcing that it was the first time he had ever read a dissent from the bench.

That Justice Sotomayor chose this particular case for her first oral dissent makes sense. As various media accounts have noted, she has been outspoken in her support for affirmative action programs. In her memoir, Justice Sotomayor recognized that affirmative action played a critical role in her own life. During oral arguments in the Schuette case, she was particularly aggressive in challenging the lawyer defending the affirmative action ban. Her lengthy written dissent, which was joined by Justice Ginsberg, is impassioned and direct. Considering all this, it would be more surprising if she had chosen not to announce her dissent from the bench.

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