Opinions of the Court, OT 2017, Voting Rights

End of the 2017-18 Term: Race and Redistricting

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During Justice Kennedy’s last weeks at the Supreme Court, the Court decided a number of important cases, many of them 5-4. We’ve already posted about many of them, including the partisan gerrymandering cases, Janus v. AFSCME (the big union fees case), and the internet taxation case. We’ll post about the rest over the next few days. Here. we’ll take on the last of the redistricting cases that the Court decided, Abbott v. Perez. Unlike the partisan gerrymandering cases, this litigation involved allegations that the districting plan violated the rights of racial minority voters.

This case initially arose in 2011 after Texas drew new district maps for both its congressional delegation and the state legislature. Plaintiffs challenged the plans as violating the Equal Protection Clause of the Fourteenth Amendment and Section 2 of the Voting Rights Act. Early in the litigation, the district court required Texas to adopt interim plans to address at least some of the problems with the pre-existing ones. In 2013, the legislature formally adopted those 2013 plans, with minor changes, as its own. The plaintiffs continued their litigation, however, alleging that the 2013 plan also violated both the Equal Protection Clause and §2 of the Voting Rights Act.

The District Court found on that the 2013 districting plan was based on discriminatory intent and that several congressional and Texas House districts were affected. In addition, three other districts were invalidated under §2 of the Voting Rights Act because they had the effect of depriving Latinos of the equal opportunity to elect their candidates of choice. A fourth district was found to be an impermissible racial gerrymander.  Click here for a more in-depth look at the background in this case from the Brennan Center for Justice.

Because the case was heard by a three-judge district court, it went directly to the Supreme Court. (See  28 U.S.C. §1253.) The majority opinion was delivered by Justice Alito and joined by Justices Roberts, Kennedy, Thomas, and Gorsuch. The Court held that the district court erred when it found that the legislature had discriminatory intent (as required to establish a violation of the Equal Protection Clause) when it adopted the 2013 map. The Court explained that the district court erroneously placed the burden of proof on the state, not the plaintiffs by “insisting” that Texas show that the 2013 Legislature had experienced a “change of heart” and engaged in a process that removed the “taint” of discriminatory intent from the 2011 districting plan. The district court should instead have afforded the legislature a presumption of good faith, which should be unchanged by a finding of past discrimination.

The Court then addressed the three districts that the district court invalidated for voter dilution. Because these holdings were based on the Voting Rights Act, the plaintiffs here did not need to establish discriminatory intent. In order to make this claim under §2 of the Voting Right Act, the plaintiffs needed to establish that the minority group was denied the equal opportunity to elect their candidate of choice. The analysis and evidence is complex and technical, based on demographic information and voting patterns among both minority and majority voters. The Court reversed the district court’s finding that the districts improperly diluted Latino votes.

The Court, however, did hold that the creation of a single Texas House district, which had been substantially modified from the district court’s plan by the 2013 Legislature, was an invalid racial gerrymander. In drawing this district, Texas had first moved the community of Como, which is predominantly African-American, out of the district in order to make it a Latino opportunity district. Como residents and their Texas House Representative objected, so Como was moved back into the district and the Legislature changed the district lines to bring the Latino population above 50%. Texas had argued that they had “good reasons” to consider race as a predominant factor in the creation of the district, but the Court found Texas’ reasons lacking. This issue is remanded to the District Court to consider what, if any, remedy is appropriate.

Justice Thomas wrote a short concurrence to note that he does not believe that §2 of the Voting Right Act applies to redistricting at all. He was joined by Justice Gorsuch.

Justice Sotomayor wrote the contentious dissent, joined by Justices Ginsburg, Breyer, and Kagan. The dissent begins with disagreement over whether the Supreme Court even had jurisdiction. On the merits, Justice Sotomayor wrote that the District Court evaluated “substantial evidence” that the 2013 legislature had “adopted the interim plans as part of a ‘strategy [that] involved adopting the interim maps, however flawed,’ to insulate (and thus continue to benefit from) the discriminatory taint of its 2011 maps.” Given the extensive litigation and the District Court’s thorough consideration of the evidence presented, Justice Sotomayor maintained that the District Court did not err – “let alone clearly err” – in concluding that the 2013 legislature had shown discriminatory intent during the districting process.

Richard L. Hasen writes in Slate that the Court has put its thumb on the scales in favor of discriminatory states, and explains some of the case’s implications for future voting rights litigation. The Economist laments that it has not been a good month for voting rights at the Supreme Court, and that this case represents a further loss for voting rights. Joan Biskupic at CNN writes that the Supreme Court’s decisions in Abbott and Husted v. A. Philip Randolph Institute (discussed here) suggest an era of freer reign for states to determine their electoral practices. And few days after the decision in Abbott, the Court issued a per curiam opinion in North Carolina v. Covington, unanimously upholding part of a court-imposed remedial map in a racial gerrymandering case in North Carolina, while holding that other parts of the map were inappropriate.

 ISCOTUS Editorial Coordinator Anna Jirschele, Class of 2018 contributed to this post, which was edited and overseen by Chicago-Kent faculty member and ISCOTUS co-director Carolyn Shapiro.

Appointments, Confirmation Hearings, History of the Court

Putting SCOTUS confirmation hearings in context

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Contemporary Supreme Court confirmation hearings are both exciting and disappointing. They are exciting because they provide a chance to hear directly from the nominee, who otherwise may not be well known. The interested public can learn a bit about the individual’s public personality and intelligence. On the other hand, the hearings are disappointing because the nominee tells us so little about what he or she actually thinks about the law – and especially about the hot-button legal issues of the day. To the contrary, rather than serious conversations about the nominee’s judicial philosophy, the Constitution, and the role of the courts, we get lengthy speeches by senators and bland answers from the nominee.

Yet a spate of recent scholarship (including my own) shows that  Supreme Court confirmation hearings can include important and substantive discussions. Indeed, during the 1980s and 1990s – even after the failed nomination of Judge Robert Bork – nominees and senators engaged in serious discussions of judicial philosophy. Although since 2000, such substance has faded, the history illuminates what we can realistically expect – and what we should demand – from what could be an important and meaningful public event.

Perhaps the most important lesson of history is that the content and conduct of confirmation hearings have changed over time. Although we think of nominees’ testimony as the centerpiece of the confirmation process, for most of the country’s history, Supreme Court nominees did not testify publicly. Justice Harlan Fiske Stone appeared before the committee in 1925 to address allegations related to a political scandal, and Justices Felix Frankfurter (1939) and Robert Jackson (1941) also testified. But it was not until 1955, with the nomination of John Marshall Harlan, that the current practice of routine appearances began.

That timing does not appear to be accidental. The year before Harlan’s nomination the Supreme Court decided Brown v. Board of Education, declaring Jim Crow-era racial segregation of schools unconstitutional. Sen. James Eastland of Mississippi, who became chair of the committee in 1956 – a position he held until 1978 – as well as two other members of the Committee – Sen. John McLellan of Arkansas and Sen. Sam Ervin of North Carolina– were southern Democrats who deeply opposed Brown. They used Supreme Court confirmation hearings to rail against the decision, which they considered a usurpation of legislative power and state authority and an improper judicial “amendment” to the Constitution motivated by the justices’ own policy preferences.

Potter Stewart’s 1959 confirmation hearing is a case in point. While questioning Stewart, McClellan announced that he “wholly disagreed with” Brown and demanded to know what Stewart thought. (Stewart demurred.) Eastland asked Stewart if overruling the separate-but-equal doctrine was “an amendment of the Constitution.” And Ervin, who made a lengthy speech condemning Brown as “a most unfortunate decision from the standpoint of law, Constitutional law in the United States,” explained that the Court “should have turned the clock back to 1868 when the [Fourteenth] Amendment was ratified” to determine the original understanding of the amendment with respect to segregation.

Perhaps even more surprising to modern observers than the controversy over Brown, however, is that during the 1950s and 1960s, most senators on the committee asked very few, if any, questions of the nominees. Segregationist senators dominated the hearings. Between 1955 and 1969, Eastland, Ervin and McLellan, along with Republican segregationist Sen. Strom Thurmond of South Carolina, who joined the committee in the mid-1960s, asked 70 percent of the substantive questions at the hearings, even as they began to shift their emphasis away from Brown and onto the Warren Court’s criminal-procedure jurisprudence and its redistricting and voting-rights cases. Justices Thurgood Marshall and Abe Fortas, for example, were grilled at length about such issues.

But if these particular senators were not concerned about a nominee, the hearing was short and polite. At Justice Charles Whittaker’s 1957 hearing, for example, Whittaker’s testimony, which takes up exactly three pages of transcript, consisted largely of biographical information — he rode a pony to high school “through 6 miles of mud night and morning.” Justice Byron White’s hearing in 1962 lasted a total of 95 minutes, including introductions and enthusiastic testimony from representatives of the American Bar Association and the Colorado Bar Association. At that hearing, none of the segregationists asked the nominee a single question; McClellan did not even attend.

This pattern changed in the 1980s, when the hearings began to be televised. The underlying norms of the hearings shifted, and most senators began to participate actively. Today, of course, every senator on the committee is present for the hearing and asks questions. Every senator gives an opening statement. Nowadays, in fact, the entire first day of the hearing is taken up by these opening statements, along with a statement by the nominee. And although one might wonder whether that particular allocation of time is worthwhile, the current intense attention of senators, media and the public alike is commensurate with the importance and influence of the Supreme Court.

Of course, complaints about confirmation hearings are common. Some people argue that they have become over-politicized, a view that appears to be based on a background assumption that at one time, the hearings focused primarily on nominees’ qualifications and ethics. This assumption is wrong, even if the substantive questions once came from only a small number of senators who were preoccupied by specific issues. There is even hard data. Law professor Lori Ringhand and political scientist Paul Collins, in their excellent book Supreme Court Confirmation Hearings and Constitutional Change, report their findings from a large-scale qualitative and quantitative analysis of the hearings. And they find that senators have always asked questions about substantive areas of law. There was no hazy past in which senators routinely avoided difficult subjects in favor of a gentlemen’s handshake; Whittaker’s and White’s hearings were the exception, not the rule.

Of course, ethics and qualifications are not irrelevant during the hearings. In fact, after Justice Abe Fortas’s failed nomination to become chief justice and his resignation from the Supreme Court in 1969 under an ethical cloud, subsequent hearings focused particularly heavily on ethics and qualifications. From 1955 through 1968, only about a quarter of questions asked focused on ethics, while from 1969 through 1975, almost half did. Indeed, after successfully nominating Warren Burger as chief justice in 1969, President Richard Nixon offered two nominees, Clement Haynsworth and G. Harold Carswell, who were both rejected in large part because of significant concerns about their ethics and qualifications.

Thus, by the time Justice John Paul Stevens testified in 1975, questions about ethics and qualifications were routine. Stevens, then a judge on the U.S. Court of Appeals for the 7th Circuit, was asked about, for example, his recusal practices and about whether he received income from any nonjudicial sources. Some senators also were worried about Stevens’ health, which they discussed in some detail — ironically, given that more than 40 years later, Stevens, although retired, is still with us. And of course, committee members have continued to ask about ethics and qualifications when they deem it appropriate. But it is wrong to conclude that some kind of undue politicization has evicted ethics and qualifications from the primary focus of senators’ questioning.

While some complain that the hearings have veered away from a focus primarily on ethics and qualifications, others lament what they see as less candor by the nominees. More specifically, one current complaint is that nominees refuse to answer important questions. Indeed, that complaint underlies then-Professor Elena Kagan’s famous characterization of the hearings as a “vapid and hollow charade.” Although this complaint has some merit, as discussed below, just as there was no time when ethics and qualifications were all that mattered in the confirmation process, so too was there no time when nominees freely answered all the questions they were asked. To the contrary, nominees have always declined to answer some questions because of an unwillingness to promise how they will vote on particular cases or issues.

Moreover, although many believe that Bork’s failed nomination led to nominees becoming increasingly reticent, the data do not bear that belief out. Ringhand and Collins, as well as political scientists Dion Farganis and Justin Wedeking, have examined the extent to which nominees decline to answer questions. Perhaps surprisingly to many of us, the rate at which this occurs has remained more or less constant over time.

Yet the tone and content of the hearings have changed in the new millennium, and not for the better. Ringhand and Collins recently compared the rate at which nominees refuse to answer questions to the rate at which they offer “firm answers about concrete doctrines and cases.” Beginning in 1987 (with Bork) and through 1994 (with Justice Stephen Breyer), all nominees gave firm answers significantly more often than they demurred.

These observations are consistent with my argument that the hearings held during the late 1980s and 1990s were remarkably substantive. This is not to say that nominees during those years made commitments about how they would rule on contested legal issues. But they did discuss their judicial philosophies, their past writings and their beliefs about the role of judges. To give just two examples: Justice Clarence Thomas talked extensively about his reliance on natural law as, for example, described in the Declaration of Independence, as an important source of information about the Framers’ thinking. And Justice Ruth Bader Ginsburg reiterated her belief that Roe v. Wade had been correctly decided, even as she criticized its reasoning. Specifically, she described the relationship between liberty, privacy and equality and discussed the necessity that government treat women as full human beings, all of which she believed required the outcome in Roe.

But beginning with Chief Justice John Roberts’ hearing (the first one after Breyer’s), nominees have been less consistently willing to have meaningful discussions about the law. Most notably, Ringhand and Collins’ data show that both Roberts and Justice Neil Gorsuch gave firm answers significantly less often than they refused to answer. Gorsuch even hesitated before eventually acknowledging, circuitously, that Brown v. Board of Education was rightly decided.

Such reticence over even the most well-established precedents is, in my view, highly problematic. A Supreme Court nominee should be willing to share his or her most basic constitutional commitments with the senators. That Brown was correctly decided should not be controversial in 2017 or 2018. If the nominee cannot endorse the outcome of that iconic case, the senators – not to mention the American people – need to know that before determining whether the nominee should serve for life on the nation’s highest court. Without such conversations, we suffer a significant loss to a candid and robust public discussion of constitutional values, a discussion that we need now more than ever.

This post first appeared at SCOTUSblog.

Appointments, Kavanaugh, News Update

Early Takes on the Kavanaugh Nomination

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It’s been just over 24 hours since President Trump nominated Judge Brett Kavanaugh for a seat on the U.S. Supreme Court. Here’s a summary of initial reactions.

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His credentials and experience have been praised. “On paper,” writes Richard Wolf in USA Today, “Kavanaugh may be the most qualified Supreme Court nominee in generations. Akhil Reed Amar, a Yale Law School professor with mostly liberal leanings, wrote a widely discussed opinion piece in The New York Times praising Kavanaugh as a judge who has “wide and deep respect among scholars, lawyers and jurists.” Michael Gerson, who worked with Kavanaugh in the Bush administration, described him as “a man of character, decency and intellectual depth” with “ the mind and temperament of a great Supreme Court justice.”

Conservatives have lauded Kavanaugh’s conservative bona fides. Writing on FoxNews.com, Kelly Shackelford of the First Liberty Institute, a religious liberty advocacy group, declared the nominee’s opinions from the D.C. Circuit “consistently adhered to our founding principles that government exists to protect the God-given rights of the people and that the Constitution exists to prevent government from infringing on the rights it is entrusted to defend.” The pro-life Susan B. Anthony List described Kavanaugh as an “outstanding choice.”

Liberals have been rather less impressed. The Washington Post’s Editorial Board writes that Kavanaugh could “drastically” shift the Court’s ideological balance, and calls upon the Senate to “extract an ironclad commitment that Mr. Kavanaugh will act as a check on the president.” Garrett Epps, in The Atlantic, finds grounds for concern in the nominee’s background. “Kavanaugh has been the creature and servant of political power all his days,” Epps writes. “It would be the height of folly to expect that, having attained his lifetime’s ambition of a seat on the Supreme Court, he will become anything else.”

Writing in The Hill, Dawn Laguens of Planned Parenthood warns, “The balance of the court is at stake—and with Kavanaugh’s nomination, our constitutional right to have an abortion in this country is tipping away from us.” At Vox, Dylan Matthews dives into the nominee’s writings to make the case that Kavanaugh would overturn Roe v. Wade. But “thanks to the perversion of the Supreme Court confirmation process,” write the editors of the New York Times, we’ll never get a straight answer on the nominees positions on Roe or much anything else of importance.

This post was written by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2019, and edited by ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.

Confirmation Hearings

What Now in the Confirmation Process?

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Under Article II of the Constitution, the president has the sole power to nominate a Supreme Court Justice, and the Senate provides advice and consent. On Monday night, President Trump nominated Judge Brett Kavanaugh to replace Justice Anthony Kennedy. The next public step will be a hearing held by the Senate Judiciary Committee, consisting of 11 Republicans and 10 Democrats, during which Kavanaugh will testify. The Committee will then vote whether to advance Kavanaugh’s nomination to the full Senate, which in turn will vote on whether to approve the nomination; if a majority of the Senate votes yes, then Kavanaugh will take two oaths: The Constitutional Oath, and The Judicial Oath. That’s the nomination process in a nutshell, but there is also a lot that happens behind the scenes.

Some Political Background

As the Washington Examiner discusses, there are currently 51 Republican Senators, and 49 Democrats, but it appears that Republican Senator John McCain will not be voting due to his illness. After the Democrats tried to filibuster the nomination of Neil Gorsuch, Republicans changed the procedures to eliminate the requirement of a 60-vote supermajority to move to a vote, taking away the Democrats’ ability to filibuster this confirmation. (The New York Times has more on this). Interestingly, some attribute the change to former Democratic Senate Majority Leader’s Harry Reid call for filibuster reform, suggesting that “Democrats have no one to blame but themselves” and “Democrats set the stage for their powerlessness.”

As Full Frontal’s Samantha Bee explains in this video segment, Republicans pushed for a delay in filling Justice Antonin Scalia’s seat on the bench until after the 2016 election, refusing to confirm President Obama’s nominee Merrick Garland. In response to Justice Kennedy’s retirement, some have argued that the Senate should similarly wait until after the upcoming midterm elections in November. These concerns arise out of, among other things, what another Trump appointee could mean for critical issues like reproductive rights and the possibility of Roe v. Wade being overruled (see this Economist article for a more detailed discussion of that specific issue.) This article by the National Center for Transgender Equality covers some other issues that could be at stake, such as employment rights and access to healthcare.

Although Democrats can’t stop the confirmation process with a filibuster, they may try other means of keeping the Court from moving in a more conservative direction – as Politifact explains, their so-called playbook includes at least 5 options: (1) flipping moderate Republican Senators; (2) convincing all 47 Democrats and two Independents to skip the hearing, which would render Republicans unable to confirm; (3) passing laws that would impose term limits on Justices; (4) convincing the Senate Judiciary Committee that Trump should not be able to fill the vacancy until the Mueller investigation has concluded; and (5) court packing, which would involve having Congress add more seats to the Supreme Court, with the idea that a future liberal president could fill those seats with nominees that would restore the political balance of the bench.

Going Forward

Typically, someone nominated by a President who is from the same party as the Senate majority is thought to be expected to see a positive result from the confirmation hearings. The last person to be outright rejected by the Senate after confirmation hearings was Judge Robert Bork; that seat ultimately went to Justice Kennedy (read this Hill article if you’re interested in learning more about that, and the ideological differences between Judge Bork and Justice Kennedy.) As Peter Paccone explains in this TED-Ed video, the hearing in front of the Senate Judiciary Committee for a contentious nominee can take a long time, so we might be looking at a lengthy confirmation hearing process. The longest time that a nominee has had to wait for a result once received in Congress was 125 days, which involved 19 public hearings that began 12 days after Justice Brandeis was nominated by President Wilson in 1916. Since 1975, the shortest time from nomination to a final vote was in 1975 when the now-retired Justice Stevens waited just 19 days to be confirmed. If you’re interested in more in-depth information about Supreme Court nominations and hearings, read Barry J. McMillion’s paper for the Congressional Research Service on Supreme Court appointments.

Although there have been nominees who received unanimous support in the Senate, the most recent being Justice Kennedy himself, much of the coverage of his retirement has used “game frame” language, which can fuel an “us versus them” type of attitude and lends itself to a contentious confirmation process. Indeed, that is just what former U.S. Senator Kelly Ayotte expects is in store for us: “I think, unfortunately, this will be a political fight.” Linda Greenhouse of Yale Law School writes “The Senate confirmation process has become so degraded that to call it a joke is way too kind.” With the divisive political coverage and sharp criticism of the process itself, as well as the significance of Justice Kennedy’s position as swing justice, it is hardly surprising that Jack Goldsmith, a professor at Harvard Law School, called Justice Kennedy’s retirement “the most consequential event in American Jurisprudence at least since Bush v. Gore in 2000 and probably since Roe v. Wade in 1973.”

This post was drafted by ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020 and was overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.

Appointments, Confirmation Hearings, Justices

And the Nominee Is ….

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Last night, in primetime, President Trump nominated Brett M. Kavanaugh to become the next Associate Justice of the U.S. Supreme Court. If approved by the Senate, he would replace Justice Anthony Kennedy, who is scheduled to retire at the end of the month. The President, a man not known for constancy or predictability, did exactly what he had been promising since his 2016 campaign: he nominated a widely respected judge with a firm, proven conservative record.

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Kavanaugh, 53, has been a judge on the US Court of Appeals for the DC Circuit since 2006. A graduate of Yale Law School, he, like Trump’s last nominee, Neil Gorsuch, clerked at the Supreme Court for Justice Kennedy. After a stint in private practice, Kavanaugh worked for independent counsel Kenneth Starr during his investigation of President Clinton, which eventually led to Clinton’s impeachment. He advocated on George W. Bush’s behalf during the Florida recount saga in 2000, then he landed a job in the Bush Administration, first as an attorney in the White House Counsel’s office and then as the President’s staff secretary. Bush nominated him to the DC Circuit in 2003. After Democrats stalled the nomination for several years, he was eventually approved in the Senate in 2006 by a vote of 57 to 36.

Judge Kavanaugh’s hundreds of written opinions establish him as a solid judicial conservative—as well as a strong, clear writer. He has given interviews, delivered speeches, and written law review articles in which he elaborated on his judicial commitments. All of these, along with piles of documents from his time in the Bush Administration, will be carefully reviewed by friends and foes in the coming months. Most all people who have worked with him—colleagues, clerks, students—say he’s a friendly, generous, and caring person. We’ll be sure to hear a lot more about Kavanaugh’s character as his supporters go to work building the case for his nomination.

Drama in the Court

Justice Kennedy’s Retirement: Reactions and Retrospectives

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As we wait for President Donald Trump to announce his nominee to replace Justice Anthony Kennedy, it is worth taking a look at some of the numerous reflections on his career and on his retirement, which he announced on June 27, 2018, shortly after the Court issued its last opinions for the Term. Justice Kennedy was seen by many as the swing vote in an intensely partisan time in the Supreme Court’s history. Indeed, Adam Liptak of the New York Times called this Court “The Kennedy Court,” which is the moniker traditionally reserved for the Chief Justice. On particular issues — notably gay rights, affirmative action, and (sometimes) abortion — Justice Kennedy sided with the liberal bloc of the Court, often providing the fifth vote in 5-4 majorities. More often, however, he took conservative positions, including in areas such as voting rights, health care, organized labor, the 2nd Amendment.

Below is a list of articles that take a retrospective look on Justice Kennedy’s legacy and how his presence on the Court shaped its current state:

  • 5 Landmark Justice Kennedy Opinions (Quint Forgey, Politico): Forgey lists some of the notable Kennedy decisions including: Planned Parenthood v. Casey and Citizens United v. Federal Election Commission. Justice Kennedy, along with Justices O’Connor and Souter, wrote an unusual joint opinion in Casey, refusing to overrule Roe v. Wade and creating the undue burden test, which rendered unconstitutional state regulations that placed “a substantial obstacle in the path of a woman seeking an abortion.” In Citizens United, with Justice Kennedy writing for the majority, the Court struck down campaign finance limitations on corporations’ political speech. Kennedy wrote: “Political speech is ‘indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation rather than an individual.”
  • In His Final Term, Justice Kennedy Handed Conservatives Many Victories (Joe Fox, Ann Gerhart, and Kevin Schaul, The Washington Post): This article looks at the ideological breakdown of each landmark decision of the 2017-18 Supreme Court Term, and how Justice Kennedy sided on each issue. Overall, Justice Kennedy voted with the conservative majority in 15 out of 20 of the term’s most controversial cases, and he did not side with the liberal bloc in a single 5-4 decision.
  • Anthony Kennedy Just Destroyed His Legacy as a Gay Rights Hero (Mark Joseph Stern, Slate): Stern provides readers a brief overview of the jurisprudence established by Kennedy’s opinions on the topic of expanding gay rights including Romer v. Evans, U.S. v. Windsor, Lawrence v. Texas, and Obergefell v. Hodges. Kennedy, in a 5-4 decision writing for the majority in Obergefell, explained that the Fourteenth Amendment protects the right of members of same-sex couples to marry. Stern argues, however, that President Trump may appoint a justice who, with the other conservatives on the Court, could reverse the holding in Obergefell, or at least roll back the protections established in previous cases—unraveling Justice Kennedy’s persona as a champion of extending gay rights and writing into law marriage equality.
  • Why Anthony Kennedy Gave Up (Dahlia Lithwick, Slate): Lithwick starts her article by calling the notion that Kennedy was a moderate centrist “fan fiction.” Although Kennedy’s vote was, at times, unpredictable on certain issues, she states “he was never anything but a staunch conservative who enjoyed occasional casual day trips to the left side of the bench.” Kennedy was perceived as someone who respected civility, but in reality, Lithwick says, the reality that his successor would be named by a president “who lies, bullies, and destabilizes the rule of law” did not impede Kennedy’s retirement.
  • Justice Kennedy’s Travel-Ban Opinion, in Light of His Retirement (Amy Davidson Sorkin, The New Yorker): Sorkin gives readers a breakdown of Kennedy’s last contribution to the Court, which was his concurrence in Trump v. Hawaii. Although Kennedy sided with the conservatives Justices granting President Trump greater authority to craft immigration policy, he possibly wanted to signal to the public that he had a nuanced perspective on the travel ban. Kennedy stated in his concurrence “[a]n anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”
  • Good Riddance, Justice Kennedy (The Editors, The National Review): The conservative publication’s editorial board gave a negative review of Justice Kennedy’s legacy on the Court. They pointed to a general lack of succinct legal philosophy and sense of confusion in Kennedy’s writing. The board called for Trump’s next pick to have a greater understanding of fidelity in his/her judicial decision-making.
  • Retirement of Justice Anthony Kennedy (SCOTUSBlog.com): SCOTUSBlog is doing a series of articles about the career and legacy of Justice Anthony Kennedy, written from many different points of view.

This post was written by ISCOTUS Fellow Michael Halpin, Chicago-Kent Class of 2020, and was overseen by ISCOTUS Co-Director and Chicago-Kent Faculty Member Carolyn Shapiro.

First Amendment, Labor Relations, Opinions of the Court, OT 2017

Unions and Free Speech—The Janus Decision

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On the last day of the term, the Supreme Court issued one of the most anticipated decisions of recent years, Janus v. AFSCME. As widely expected, a five-justice majority overturned Abood v. Detroit Board of Education (1977) and held that unions could not require public-sector employees to pay “agency fees” that would be used to fund the union’s collective bargaining efforts. Justice Alito, writing for the majority, explained that because “fundamental free speech rights are at stake,” the Court felt justified in abandoning Abood. The petitioner in this case, Mark Janus, objected to being required to pay his workplace union’s agency fee because he disagreed with many of its public policy positions. In siding with Janus, the Court brought an end to mandatory union fees in the public sector.

Justice Alito cited a number of factors that led the Court to find that stare decisis did not require deference to Abood. They included: criticism that Abood failed to give adequate consideration to  First Amendment concerns; difficulty determining what was an “agency fee”; and legal developments in related areas of law.

Justice Kagan wrote the dissent, which was joined by Justices Ginsburg, Breyer, and Sotomayor. She argued that Abood remains sound, and the balance it struck between union interests and public employee expression was consistent with established First Amendment doctrine. To hold otherwise, she wrote in one of the most widely quoted lines from the Janus, was nothing more than “weaponizing the First Amendment” to advance conservative interests. Justice Kagan also expressed her disagreement with the majority’s dismissive treatment of a long standing precedent. “The worst part of today’s opinion,” she wrote, “is where the majority subverts all known principles of stare decisis.”

Response to the ruling was predictably divided. Mark Janus was “ecstatic.” Conservatives praised Janus as a win for taxpayers and freedom of speech. On the other side, labor activists and unions denounced the decision and announced plans to keep fighting for union rights. Vox described Janus as the “most consequential ruling of the year”; some have estimated that teachers unions could lose up to a third of their funding. Writing in the New York Times, Jared Odessky and Miriam Frank criticized the decision as a blow to the LGBT community, who often rely on unions to advocate for their workplace rights.

Opinions of the Court, OT 2017

Opinions: Bitcoin, Officers, and Appropriate Notice

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In addition to Wayfair, (discussed here) the Supreme Court issued a second tax opinion on the same day in Wisconsin Central, Ltd. v. United States. Although the case is about interpreting a federal statute, the Railroad Retirement Tax Act of 1937 (RRTA), Wisconsin Central made headlines in the cryptocurrency community because Justice Breyer used the term “bitcoin” in his opinion—the first time the term appeared in a Supreme Court opinion.

The central issue in Wisconsin Central is whether transferable stock from a railroad company to its employee if a form of taxable “compensation,” which is defined as “any form of money remuneration paid to an individual for services rendered as an employee,” under the RRTA. Writing the opinion for the 5-4 decision, Justice Gorsuch explained that stock is not a taxable form of compensation, noting that “few of us buy groceries or pay rent or value goods and services in terms of stock.” Although the majority opinion conceded—to the dissent’s point—that technology nowadays allows one to trade stock easily and quickly, and collect money on trades to be used in exchange for goods or services as a “medium of exchange,” the Court concluded that an actual stock, defined in 1937 or the present, is not defined by Congress or by the courts as a form of money.

In dissent, Justice Breyer argued that the phrase “any form of money remuneration paid to an individual for services rendered” includes stock awarded to railroad employees because it is a form of compensation for their labor. He referred to Bitcoin to analogize that, like compensation in the form of stock options, and companies may one day pay employees via a cryptocurrency. Although Wisconsin Central only references Bitcoin in passing, cryptocurrency enthusiasts rejoiced in the modicum of legitimacy awarded to what the Securities and Exchange Commission calls a “commodity” and not a “currency.” Time will tell whether the Court will hear legal challenges to the validity, or lack thereof, of cryptocurrencies.

Also on Thursday, June 21, the Court released opinions in two additional cases.  Lucia v. Securities and Exchange Commission addressed whether an administrative law judge (ALJ) for the  Securities and Exchange Commission (SEC) was “an officer of the United States, and therefore could only be appointed by the President or “Heads of Departments” pursuant to the Constitution. Initially, the SEC argued that the ALJs are mere employees, but the federal government switched positions in its response to Lucia’s petition to the Supreme Court.

The Court, in an opinion by Justice Kagan, joined by the Chief Justice and Justices Kennedy, Thomas, Alito, and Gorsuch, agreed with the federal government’s new position. As discussed in the New York Times, the Court accordingly held that SEC ALJs are officers of the United States and therefore subject to the Constitution’s Appointments Clause. The Washington Post discusses the cases and compares the rationale underlying the various opinions written in Lucia. In discussing the narrow nature of the opinion, the LA Times says the Court “brushed aside” a request from the current administration to declare that the president has the power to fire any top federal official. Meanwhile, CNBC describes the opinion as a victory for the president because of the government’s decision to change its opinion to side with Lucia.

In its opinion in Pereira v. Sessions, the Court addressed whether notices to appear for immigration removal hearings must state the place and time of the hearing in order for the immigrant to be eligible for removal cancellation under 8 U.S.C. § 1229b(b)(1), which applies as long as the individual has been in the U.S. for 10 years. Once a notice is issued however, the clock stops counting. The Court ruled that if the notice does not specify the time and place of the hearing, it is not a “notice to appear” and does not trigger the statute’s “stop-time” rule. Courthouse News Service notes that Justice Sonia Sotomayor, writing for the majority, stated the date and time of the removal hearing is “critical” to the notice. She further stated that the time and place must be specified in order for §1229(b)(1) to have any meaning, and it helps prevent the government from sending out ambiguous notices. Justice Alito was the lone dissenter in this case. He was concerned with the government’s ability to accurately include the date and time on every notice it sends. Check out The Washington Examiner, Newsweek, and WBUR News  for more information on this ruling.

ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, contributed to this post, which was overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.

Opinions of the Court, OT 2017

Opinions: Internet Taxation

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On Thursday, June 21, the Court released its opinion in South Dakota v. Wayfair, Inc., one of two cases decided last month in which the Court reversed its own precedent. (The second case was Janus v. AFSCME.) Wayfair is a case with important tax ramifications for both consumers and online retailers, as it involved a South Dakota law requiring online retailers to pay sales tax on goods sold in the state. Prior to the law, sellers were required to collect and remit the tax, and if the sellers did not do so, consumers were responsible for paying a use tax at the same rate as the sales tax. Compliance with this requirement is notoriously low in all states with similar tax regimes. Prior Supreme Court precedents in National Bellas Hess, Inc. v. Department of Revenue of Illinois and Quill Corp. v. North Dakota, had limited a state’s ability to collect those taxes from sellers – saying that a state may not require a business that does not have a physical presence within the state to collect its sales tax..

Justice Kennedy wrote the opinion, joined by Justices Thomas, Ginsburg, Alito, and Gorsuch, overruling the Court’s prior precedent and upholding the South Dakota law. The Court held that the physical presence rule defined by Quill is no longer workable given the prevalence of online retail in the national economy. He maintained that the rule substantially disadvantaged small businesses because they generally met the physical presence rule and therefore had to collect sales tax – causing those businesses to charge the consumer higher prices. The physical presence rule also harms states, Justice Kennedy wrote, which are losing an estimated $8 to 33 billion per year in sales tax revenues as a result of the physical presence rule. The Court overruled the physical presence rule of Bellas Hess and Quill and remanded the case for further proceedings on whether or not South Dakota’s sales tax law violates the Commerce Clause in other ways.

Chief Justice Roberts wrote the dissenting opinion, joined by Justices Breyer, Sotomayor, and Kagan. The dissent argued that alteration to the physical presence rule has the potential to disrupt the growth of online retail, correspondingly interfering with the national economy. Justice Roberts contended that the bar is high for departing from stare decisis and demands “special justification,” particularly if Congress is better situated to address the issue. (Under the branch of Commerce Clause jurisprudence at issue here, known as the Dormant or Negative Commerce Clause, even if the Court strikes down certain state taxes or other regulations, Congress has the power to authorize them.) The dissent also pointed out that the exercise of figuring out tax rates in different jurisdictions will be difficult, with the burden falling disproportionately on small and “micro” businesses across the country.

Many commentators see this ruling as bad news for consumers and small businesses, who are likely to end up bearing the brunt of this decision. Investor’s Business Daily’s editorial, here, writes that this decision may have opened the door to letting states impose other taxes on out-of-state businesses. Jessica Melugin of the Center for Technology and Innovation at the Competitive Enterprise Institute writes in the New York Times that the decision will hurt online shopping by eliminating competition and decreasing political consequences to keep tax rates at reasonable levels. However, Justin Fox’s opinion on Bloomberg argues that the “Internet sales tax switch is good policy made the wrong way.”

The Court issued three other opinions on the same day as Wayfair. They are discussed here.

ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, contributed to this post, which was overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.

Opinions of the Court, OT 2017

Opinions: Repeat Litigants at the Court and Sentencing Guidelines

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In a decision issued the same day as the partisan gerrymandering opinions, the Supreme Court ruled in Lozman v. City of Riviera Beach. This is the second opinion the Court has issued involving Fane Lozman and the City of Riviera Beach — and the lawsuits are related but independent of each other. In 2013, Lozman won a case against the city in which the Court determined that his houseboat was not a “vessel” subject to maritime law. In the case at hand, Lozman was kicked out of a city council meeting and arrested for disturbing a lawful assembly when he ignored the council’s demands to not discuss local government corruption. The prosecutor determined there was probable cause for his arrest but dropped the charges. Lozman then brought his case alleging he was falsely arrested in a retaliatory action. As Robert Barnes of The Washington Post reports, the Court found again for Lozman, albeit narrowly. Lozman did not dispute the probable cause for his arrest; however he claimed it violated the First Amendment because he was arrested in retaliation due to his earlier protected lawsuit and his prior criticisms of public officials.  The Court agreed that the probable cause does not bar his First Amendment claim, but he will have to show “the existence and enforcement of an official policy motivated by retaliation” of the city council. Justice Anthony Kennedy, writing for an eight-justice majority (only Justice Thomas dissented), stated “It must be underscored that this Court has recognized the ‘right to petition as one of the most precious of the liberties safeguarded by the Bill of Rights,” and that Lozman’s speech “is high in the hierarchy of First Amendment values.”

Richard Wolf of USA Today reports this case had some concerned (including the Court) of possible implications for arresting police officers who may face lawsuits of their own “split-second” arrest decisions. The Court acknowledged this by stating the police “need the safe harbor of probable cause in the First Amendment context to be able to do their jobs effectively,” but also “there is a risk that some police officers may exploit the arrest power as a means of suppressing speech.”

On the same day, the Court also issued two opinions related to the federal sentencing guidelines. Rosales-Mireles v. United States involves the doctrine of “plain error,” which applies when a clear error occurs in the trial court but the criminal defendant fails to object at the time. The Court of Appeals for the Fifth Circuit reviewed the case under United States v. Olano, which articulated four conditions that must be satisfied for an appellate court to correct an error that defendant did not object to at trial: (1) there must be an error; (2) that error must be “plain” or “obvious”; (3) that error must affect substantial rights (i.e., it affected the outcome of the district court proceedings); and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. While the Fifth Circuit found that the first three conditions were satisfied in the present case, it declined to vacate and remand the case because it said that Rosales-Mireles did not show that the error was one that would “shock the conscience of the common man.”

In a 7-2 opinion, the Court disagreed with the Fifth Circuit’s interpretation of the fourth prong, calling it “unduly restrictive.” In explaining its decision to reverse the Fifth Circuit’s decision and remand the case for resentencing, the Court criticized the narrow standard as only allowing those errors that rise to the level of grossly serious misconduct to be corrected. That a defendant could be unnecessarily deprived of his or her liberty due to a plain error, even if unintentional, undermines the public legitimacy of judicial proceedings, wrote Justice Sotomayor, regardless of whether the ultimate sentence falls within the correct range.

Justice Thomas, joined by Justice Alito, dissented from the majority opinion, accusing the Court of rendering the fourth Olano prong largely illusory. He further argue that the error in the present case was unlikely to have affected the substantive outcome of the case, and that the Court should not have allowed a purely procedural error to satisfy the fourth prong of plain error review. The case is discussed by the Courthouse News Service, and Jurist and those who are interested in reading the opinion itself can find it in full, here.

The Court also issued its opinion in Chavez-Meza v. United States, which asked a different question relating to the Federal Sentencing Guidelines: in explaining its decision not to grant a particular type of sentence reduction, must a court provide a lengthy explanation? Here,  the judge stated only that he had considered Chavez-Meza’s motion and took into account the relevant Guidelines policy statement and statutory factors. The Court here upheld the sentence. Justice Kennedy, joined by Justices Sotomayor and Kagan, dissented, calling the order reducing Chavez-Meza’s sentence “terse” and “insufficient to allow for meaningful appellate review.” This case is also discussed by the Courthouse News Service; to read the opinion itself, click here.

ISCOTUS Fellows Zoe Arthurson-McColl, Chicago-Kent Class of 2020, and Matthew Webber, Chicago-Kent Class of 2019, contributed to this post, which was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Class of 2018, and overseen by Chicago-Kent faculty member and ISCOTUS co-director Carolyn Shapiro.