Tag Archives: Free Speech

Supreme Court — The COVID-19 Term (Updated)

By tmess2 | Published June 26, 2020

In normal years, the Supreme Court would probably have wrapped up business for the term by now.  It has been a long time since the last time that the Supreme Court was still issuing opinions in an argued case after June.  There is still a chance that the Supreme Court might finish this term by June 30, but we are getting mixed messages from the court.  (I do expect to see opinions in all of the cases before the Supreme Court recesses, but there is a chance that some cases could be set for reargument in the fall.)

On the one hand, we have yet to get any opinions from the May arguments.  While the May arguments were two weeks later than the usual time for the April arguments, it is usual to have some of the April opinions by the early part of June.  We also have not seen the pace of opinions pick up.  In the last weeks of the term, it is not unusual to see three or more opinion days per week, and multiple opinions on each opinion day.   At the present time, while we have had second opinion days for the last two weeks, we have only gotten a total of five opinions over the last two weeks (as opposed to the more usual eight to ten opinions per week).  And the Supreme Court has only announced two opinion days for this upcoming week.

On the other hand, the Supreme Court has announced that they will have a conference on Wednesday and release orders on Thursday (rather than the normal Monday order day).  That sounds like Wednesday could be the “wrap-up” conference. Continue Reading...

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Supreme Court: Mid-term Update

By tmess2 | Published January 6, 2019

The  Supreme Court is set for a somewhat early start for its January arguments session.  While the Supreme Court has yet to release its calendar for the March and April argument sessions, we do have some idea of the general numbers for the remainder of the term.  There will be ten new cases (and one reargument) in January, eight new cases in February, and up to nine in March.  There are still some opportunity to add cases to the April docket, but for now there are four additional cases that could be set for argument in April.


Starting with the rearument case for January, that case is a Takings Clause case.  In 1985, the U.S. Supreme Court essentially held that a person claiming an improper takings without adequate compensation had to pursue their claim for adequate compensation in state court.  Because every state provides a mechanism for litigating the adequacy of compensation, this requirement essentially eliminates the ability to raise the federal aspect of the claim in federal court.  Conservatives do not like this rule and have been questioning it since it was created.  This case was originally argued in front of an eight-justice court in October.  Then it got set for re-argument in January.  While the order scheduling the case for reargument includes the fig-leaf of requesting additional briefing on a point raised during the first argument, it doesn’t take a rocket scientist to guess that the justices were split 4-4 and that it is now up to Justice Kavanaugh to break the tie. 

Also up for argument in January is Merck.  As the party name should suggest, this case is about pharmaceuticals.  Federal law controls the contents of the warnings that a drug company must give about the side effects, but that law also requires the drug companies to provide adequate information to the FDA.  If the company complies with these rules and the FDA determines that the label need not warn about a potential side effect, then injured patients may not bring a cause of action based on the failure to warn.  The problem is that the FDA does not always provide a conclusive rejection of any warning and merely turns down the warning as drafted.   The injured patients are contending that the rejected warning was poorly drafted and that a properly drafted warrant might have been accepted.  As such, the company may not use the rejection of its warning to bar a claim based on a slightly different warning. Continue Reading...

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June at the Supreme Court — October 2017 Term

By tmess2 | Published June 3, 2018

Because the Supreme Court has a custom of publishing opinions in the same term as the oral argument on a case and the justices like to wrap up their work before July 4, June is always an active month at the Supreme Court — the legal equivalent of an everything must go closeout sale.  Because during the rest of the year, the Supreme Court issues decisions as the opinions are ready for release, the June opinions reflect two groups of cases.  First, there are the cases from late in the year — March and April primarily — for which a June decision would reflect a somewhat normal opinion pace.  Even for a unanimous decision, it takes time to write an opinion, and sixty days is somewhat the norm even for unanimous opinion.  Second, there are the difficult cases.  While sixty days from argument to opinion is a good pace when everyone agrees, if other justices want to write an opinion (dissenting or concurring) in response to the initial opinion that extends things considerably — particularly if the original author revises their draft to respond to the other opinions as sometimes happens.

This year’s caseload for June is somewhat on the high end for recent years with 29 cases still pending.  (For now the Supreme Court is just issuing cases on Monday, but, at some point this month, the Supreme Court will add additional days each week.  Needing to issue seven cases per week, my hunch is that they will go to two days per week starting June 11, but they might hold off to June 18.)  While there have been other years with more cases still pending at this point in time, what makes this year exceptional is the low number of cases decided.  The Supreme Court only had 63 arguments this year, reflecting the continued decline in accepting cases.  Of those 63 cases, two were dismissed meaning that the Supreme Court has only decided 32 argued cases this year.   As would be expected, the Supreme Court has decided most of the cases from argued between October and January — 28 decisions out of 34 cases.  Of the twenty-nine cases argued in February, March, and April, the Supreme Court has dismissed two cases and decided four cases.  Because the Supreme Court tries to balance out opinion assignments from each argument session, that means that there is some clue as to who is handling the pending cases from the first four argument sessions, but very little clue as to the last three sessions.

From October, there is only one case left and it is bigly important — Gill vs. Whitford on partisan gerrymandering.  Based on the other opinions from October, it appears that Chief Justice Roberts got the initial assignment on the case.  Normally, that would be a bad sign for those who believe that the Supreme Court has some role to play in assuring fair elections.  However, after the initial conference, the Supreme Court did accept a second case on partisan gerrymandering.  I can also see a situation in which the majority saw problems with the standard used by the panel but could not agree on what the standard should be.  That split would allow Chief Justice Roberts to assign the case to himself but could lead to a situation (like the last time that the Supreme Court considered this issue) in which there was no majority opinion.  Or the argument in the second case may have clarified issues resulting in one of the other justices now having the majority opinion.

There are no cases still pending from November, but there are two cases still pending from December.  One case (Carpenter) involves the standard governing government requests for cell phone records (particular those records showing which tower was used by the cell phone which can be used to place a suspect near the crime scene).  The other (Masterpiece Cake) involves whether states have to permit service providers to discriminate based on sexual orientation when the service provider asserts that they have a religious belief implicated by providing the service.  Based on the other opinions issued from the December argument session, it is most likely that these two cases were assigned to Chief Justice Roberts and Justice Kennedy.  On the cell phone case, it probably does not matter which justice is writing the opinion.  Both are equally likely to support some solution that includes some protection for suspects but permits the government to obtain those records in most cases.    While both have more often than not voted in favor of protecting free speech and free exercise rights, Justice Kennedy has been much more likely to vote in favor of LGBT rights.  In other words, if Chief Justice Roberts has the opinions, then the baker is very likely to win.  If Justice Kennedy has the opinion, then it could go either way.

The last month in which we can make any decent prediction about opinions is January.  January has three cases remaining (out of nine argued) and three justices do not yet have a January opinion.   The three remaining cases from January have very different significance to non-parties.  One is an original jurisdiction water dispute between Florida and Georgia; one involves whether military judges can both serve on the court that handles military appeals and also on the panel that would hear any appeal if there is ever a trial by the military commission for the inmates at Guantanamo; and one involves the removal of registered voters from the voter roll in Ohio.  The three justices who are likely to have these three cases are Justice Breyer, Justice Alito, and Justice Kagan.  Given that the other water right case from January went to Justice Gorsuch, Justice Kagan (as second most junior) is a good candidate to get the water rights case.   Given the number of significant criminal justice decisions in January (three — with the opinions written by Justice Kennedy, Justice Ginsburg, and Justice Sotomayor), I can see how either of these two cases could have been assigned to Justice Breyer or Justice Alito as both involve questions of statutory interpretation.  As with the December opinions, I don’t think it matters to the outcome which justice gets the military appeals opinion.  Given how long it is taking, there is probably a split, but it is not necessarily along liberal-conservative lines and both Justice Breyer and Justice Alito could be in the majority on that case.  The voting case (Husted) is very likely to be a liberal-conservative split with Chief Justice Robert and Justice Kennedy controlling which side won.

For the cases argued in February or later, there is simply not enough information to guess who is writing the opinion.   With the two dismissed cases (out of nine argued) in February, we will not know until we get the opinions who has what case (although we will know who does not have the remaining cases as each opinion gets published).  For now, we just have an opinion from Justice Breyer.  The biggest case remaining from January (Janus) involves the First Amendment and mandatory union dues for public employees.  Given that the current law probably only survived due to the death of Justice Scalia, most people expect that the Supreme Court will strike another blow against unions.  There are some other potentially significant First Amendment cases from February — Mansky on political apparel at polling places, and Lozman  on whether a person can assert a claim of retaliatory arrest for political activity if the arrest would otherwise be legal.

From March, there have been two opinions issued from eight cases argued.  As such, we know that Chief Justice Roberts and Justice Gorsuch probably do not have any of the six remaining cases.  Because at least one justice will not have an opinion from March, it will be impossible to predict who has any particular case.  The two major cases from March is the California case on mandatory disclosures by “pregnancy resource centers” and the Maryland partisan gerrymander case.   In the past, the Supreme Court has approved of laws imposing mandatory disclosure requirements of abortion providers, but the California case involves mandatory disclosures from medical and pseudo-medical facilities that are pro-life.  It is likely that some of the disclosures will not survive, and the big issue is whether the Supreme Court will call into question or overrule some of those earlier decisions.  As noted above, the fact that the Supreme Court heard arguments in a second partisan gerrymander case implies that there was not a consensus after the first case.   The big question is whether this second case led to the first case being reassigned to one justice who will write opinions in both cases.   Again, I would not be surprised by the majority finding some flaws with the decisions of the trial court panel, but no opinion getting a majority of justices supporting a particular legal test that governs this type of case.  That leads to one of the minor cases from March (Hughes) in which the Supreme Court is reconsidering the standard that lower courts should use when figuring out the test created when there is no majority opinion in a case.

Lastly, there is April.  April is one of two months (December was the other) in which there were more than nine cases argued.  For April, part of the guessing involves the total cases for the year.  With 63 argued cases, each justice should have gotten seven opinions total for the year.  From October to December, there were twenty-five cases, and it appears that Justice Kennedy and Chief Justice Roberts will only have two cases from the first three months.  Thus, they are likely to have two each from April.  Whichever justice does not have an opinion from March could get the other extra case from April, but we will not know whom that justice is until we get a second opinion from a justice in April or all of the March opinions.  Additionally, we do not know the impact of the two dismissed cases from February.  As they were not immediately dismissed, the cases were probably assigned to a justice (and thus implicitly count toward the seven).

There are several significant cases from April.  Obviously at the top of the list is the Muslim travel ban case.  Also of significance on the immigration issue (Pereira) involves what qualifies as a valid notice to appear (the document served on a deportable immigrant that starts the deportation case) as it impacts whether a legal immigrant has enough time in the United States to qualify for relief from deportation.  While partially a technical issue, Lucia involves whether administrative law judges are “officers” of the United States subject to the appointments clause (Senate confirmation unless other officers are authorized by statute to appoint the “inferior” officer).  Given that the process for appointing most administrative law judges does not comply with the appointments clause, this challenge is a way for regulated parties to basically block administrative enforcement proceedings.  Wayfair is a request by states for the Supreme Court to reconsider its rule on when a state can impose a sales tax on catalog/internet sales.  Finally, Abbot is a racial gerrymander case.

Abbot has been buried a little by the primary focus on partisan gerrymandering, but it involves what could be a significant issue for the next round of redistricting.  When a court finds that it is likely that a redistricting plan is invalid, it can draw an interim plan pending a full hearing on all of the claims (or legislative action fixing the invalid plan).  In drawing the interim plan, particularly as the court has not made a final determination, it is supposed to make the minimal changes necessary to remedy the identified flaws in the original map.  After redistricting in 2011, the district court found problems with the initial plan and adopted an interim plan.  Texas, wanting to keep as much of its original discriminatory plan in place as possible, passed a new map based on the approved interim plan.  Texas now wants to claim that their adoption of the interim plan protects them from any further challenges to its map.   The groups challenging the new maps note the restrictions — both substantive and time — that limit an interim map and argue that, because an interim map is still influenced by the original discriminatory map, they should be able to argue that the interim map did not completely cure the original violation and still reflects an intent to discriminate.  How the court maneuvers between these two positions will influence what happens in the next round of redistricting.

In short, out of twenty-nine cases, there are four voting cases (three redistricting and one registration), two immigration cases, one abortion case, one LGBT rights case, and one major labor case.  The results will have a major influence on voters, women, workers, immigrants, and the LGBT community.

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Partisan Gerrymanders and the Supreme Court

By tmess2 | Published April 7, 2018

Earlier this year, the United States Supreme Court heard oral argument (transcript here) in Gill vs. Whitford, a case in which a three-judge panel found that the legislative district lines drawn by Wisconsin after the 2010 Census was an unconstitutional partisan gerrymander in violation of the Equal Protection Clause.  Last week, the United States Supreme Court held oral argument (transcript here) in Benisek vs. Lamone, a case in which a three-judge panel rejected a request for a preliminary injunction involving a claim that Maryland’s Sixth District was an unconstitutional partisan gerrymander in violation of the Free Speech Clause (and other parts of the First Amendment).

It is unusual for the United States Supreme Court to set a second case on the same issue for hearing while the first case is under submission (i.e. already argued).  What is more typical is granting multiple cases at the same time and having all argued at the same time.  As such,  for those who try to look for tea leaves in oral argument, one area of speculation was whether the questions from the justices might indicate where they were on the issues raised in Gill.  In theory, at least, there are some drafts being circulated on Gill.  At the very least, there was a tentative vote immediately after Gill. 

Two initial points before going into the merits.  First, redistricting and the rules for it are important.  We spent a lot of time in 2011 discussing what might happen when the new maps are drawn.  After three congressional elections (and state legislative elections) and two presidential elections, we have a pretty good understanding of the results of the 2011 line-drawing.  The bottom line (according to the Cook Partisan Vote Index) is that, in an election in which both parties get 50% of the two-party vote, the Republicans will emerge with something around a 240-195 advantage in Congress, exactly where we ended up after 2016.  To win a majority, the Democrats need to get around 53% or 54% of the total vote.   In many states, you have similar results on the state level.

Second, the two cases have several differences in how they present the issues to the Supreme Court.  Gill involves a state-wide challenge to legislative districts based on the Equal Protection Clause after a final decision.  Benisek (at least as currently presented) involves a challenge to a single congressional district based on a First Amendment “retaliation” theory after the denial of a preliminary injunction (and there are additional requirements separate from the ultimate merits before a party can receive a preliminary injunction).   Potentially, these differences were the reason for the argument in Benisek — to have an opportunity to decide exactly the theory and standards under which courts can review partisan gerrymander claims.

In practical terms, the Wisconsin case is similar to many voting rights cases.  In voting rights cases, there are two ways that districting can get into trouble.  First, it can take account of race too much — raising an equal protection intentional discrimination claim.  This type of claim tends to focus on individual districts.  Second, it can fail to give minority voters enough “minority majority” districts or not enough “minority influence” districts leading to the dilution of minority votes. This type of claim tends to focus on the map as a whole.   The theory in the Wisconsin case looks like a mix of these two approaches — relying on evidence of an intent to slant the whole map in favor of the Republicans and proof (in terms of mathematical measures of wasted votes) that the map is designed to leave Democrats under-represented and to prevent the Democrats from gaining the majority even if the Democrats win a majority of the popular vote (as shown by the 2012 election results).  You had something similar in the district lines just thrown out in Pennsylvania.

The Maryland case focuses on the targeting of certain voters.   After the 2010 census, Maryland’s Sixth District needed to be increased by 10,000 residents to meet the requirements of one man, one vote.  Instead, the new lines moved about half of the former residents out and replaced them with a new group of voters — changing a likely Republican district into a likely Democratic district (currently a D+6 partisan vote index).    The theory is that these voters were punished for their past history of voting for the minority party by being moved from a district in which they had influence in choosing their Congressman into districts in which their votes do not matter.

So what did we learn from the argument?  Unfortunately, the signals were very mixed.  The more conservative judges were a little more respectful of the Maryland challengers than they were of the Wisconsin challengers.   The problem is figuring out the reason for this.  Was this merely partisanship (treating the Republican challengers in Maryland better than the Democratic challengers in Wisconsin) or did this indicate that the vote after Gill was to recognize some type of partisan redistricting claim with the debate being about the type of standard.  If the debate was about the standard, obviously, the conservatives would prefer a simpler standard that is difficult to meet.  A Maryland-based test would probably only reach the most blatant reworking of a single district and allow the more subtle manipulation of the entire map that is currently common as shown by the Wisconsin case.

On the other hand, that question of the appropriate standard seems to be very much in the air.  In fact, given that it is almost certainly too late (or will be by June) to redraw lines for 2018, Justice Breyer suggested granting review on a third case out of North Carolina (lower court decision here) that presents a third approach to the appropriate standard and scheduling all three cases for argument this fall so that the Supreme Court could have all three proposals in front of it with appropriate supplemental briefing on the merits of each of the potential standards.

So what to expect from these two cases.  It is likely that the Supreme Court will want to issue both cases at the same time and may even assign both cases to the same justice.  Amazingly, we still have four cases outstanding from October (the Supreme Court has been very slow with opinions this year).  As discussed in the past, the Supreme Court tends to try to balance the workload of the justices,  Thus, it is likely that Gill was originally assigned to one of four justices — Chief Justice Roberts, Justice Kennedy, Justice Alito, and Justice Kagan.  Cases are assigned by the senior justice in the majority, but it is unclear what qualifies as a majority here.  It is unlikely that five justices will agree that the panel in Gill applied the right test; so there is probably a majority to reverse the decision below in which case Chief Justice Roberts would arguably be the senior justice in the majority and may have kept the case.  On the other hand, it is unclear if Chief Justice Roberts agrees that the challengers in Gill presents a viable claim, but it is pretty clear that Justice Kennedy believes that a partisan redistricting claim is viable which would make Justice Kennedy the senior justice in the majority on that issue, making it likely that Justice Kennedy would have the case.  Regardless of which justice got the original assignment, the argument in Benisek raises the likelihood that we will have some type of split decision in both cases in which no opinion gets the support of five justices with three or four finding that there is no claim, and the rest splitting on the proper legal standard to apply to such a claim.   There is always the slim chance that Justice Breyer will get what he proposed, reargument in the fall with three cases on the docket at the same time.

Particularly, as we are unlikely to get new maps for 2018 in any of the three states, and the most likely result is to send these cases back to the panels for reconsideration in light of whatever standard gets the support of five justices (or whatever standard is deemed to be the narrowest rule if no standard gets the support of five justices), the results in these cases matter most for 2021.  Even if there is no final decision on the current maps before the 2020 elections, the standard in these cases will give guidance to whomever has to draw the new maps in every state in 2021.

While activists hope for a favorable decision from the Supreme Court, they are not waiting.   In, at least, four states, activists are pushing potential referendums to change the redistricting process.  In the last round of redistricting, all four states drew lines that were slanted in favor of Republicans,  costing the Democrats 5-10 House seats.  In Michigan, supporters have submitted signatures to the Secretary of State for a proposal that would give redistricting authority to a group of randomly selected commissioners.  In Missouri (which already uses balanced bi-partisan commissions for state legislative maps), the proposal being circulated creates a non-partisan official to draw the initial maps with the commissions (and the state legislature for congressional maps) having the power to change those maps by a supermajority.  In Ohio, the proposal being circulated would give the commission that currently draws state legislative maps the responsibility for drawing the congressional map as well.  Finally, in Utah, at least some signatures have been submitted in support of a proposal to create a redistricting commission with authority to draw congressional and state legislative maps but with the legislature having final approval over the plans.  All four proposals establish criteria governing the final maps intended to create a mechanism for challenging the more extreme forms of gerrymandering.

Besides these propositions, of course, the best defense to another round of pro-Republican gerrymandering is to win state legislative seats and the governorships in the states.  In both Ohio and Utah, the proposed commissions divide the appointment of commissioners between three executive branch officials and four legislative officials (meaning that one party could have a 5-2 advantage).   Even with the propositions, the majority of the states will still give virtually unfettered authority to the state legislatures.  With governors and state senators having four-year terms in almost all states, the winners in this fall’s election will still be around in 2021 to draw the new maps.

While “fairness” in elections is not something the directly effects people (and thus is hard to get non-activists interested in), it is a necessary pre-condition to the policy goals that do matter.  The folks at 538 did some random maps based on certain criteria — ranging from nation-wide partisan gerrymanders (unlikely as no party is going to control every state) to various neutral criteria (partisan balance, compact, competitive, maximizing minority representation) — and the only map worse than the current map would have been a nation-wide pro-Republican gerrymander.  In particular, the current map (on average) is about nine to ten seats more favorable to the Republicans than a map designed to maximize the number of competitive districts.  Equally as important, the current map has fewer competitive districts than any of the non-partisan gerrymander maps, meaning that general election voters have few opportunities to change their representative.   While geography does and will pose a potential problem for Democrats, the current maps in several states are costing us multiple seats compared to a non-partisan map (e.g., North Carolina — 2 seats; Texas — 2 to 3 seats) and in the vast majority of states have at least one or two seats that were drawn as likely Republican which with minor adjustments could have been swing seats.  At the end of the day, it is much harder to get protections for workers, the environment, women, LGBTs, minorities if we need to get 56% of the vote to get a narrow majority and a working majority is almost impossible.

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To Bake or Not to Bake

By tmess2 | Published December 2, 2017

This week, the United States Supreme Court will hear arguments in Masterpiece Cakeshop vs. Colorado Civil Rights Commission.  The case involves Colorado’s civil rights statutes which prohibit discrimination based on sexual orientation.  The petitioner — a baker — claims that he should be exempt from that requirement because he believes that gay marriage is morally wrong and, by making him sell a wedding cake to the happy couple, the Colorado law is compelling him to endorse the wedding.

In many ways, this case is similar to the Hobby Lobby case from several years ago, but, in some key ways, it is different.  The main difference requires going back thirty years to a rather infamous free exercise decision, Employment Division of Oregon vs. Smith.  In Smith, Justice Scalia all but wrote the Free Exercise Clause out of the Constitution — holding that it created no exemption based on religious belief from a generally applicable law.  In response, Congress passed the Religious Freedom Restoration Act which was intended to restore the pre-Smith interpretation of the Free Exercise Clause.  There are, however, two problems with the Religious Freedom Restoration Act.  First, as shown by Hobby Lobby, it actually created more protections than the pre-Smith decisions.  Second, the United States Supreme Court has held that it only creates a rule for interpreting federal statutes and that Congress does not have the power to impose a similar rule on the states.  Because this case involves a state law, the RFRA does not apply.  While the baker attempts to raise a free exercise claim, that claim is unlikely to succeed under Smith as the ban on discriminating against homosexuals is a law of general application.  That does, however, leave the free speech claim.

The free speech claim brings us back into the Hobby Lobby universe where the question is whose perception controls.  Besides actual speech, free speech protection extends to expressive conduct.  Furthermore, as a general matter, the government may not compel speech.  The question is thus who is speaking in this case — a question that could blow a significant whole in civil rights law.

The Civil Rights Commission and supporting groups take the position that the only speech at issue here is the customer’s speech.  It is the customer that is having a wedding reception and celebrating their marriage.  The baker is just providing a product.  Since the provision of that product is compelled by law, no reasonable person could interpret the baker’s actions as an endorsement of the wedding.

The baker on the other hand — and supporting conservative groups — contends that he makes “custom” cakes.  As such, in creating a cake, he is expressing a message of support for the customer’s activities.  Since he does not support these customers, forcing him to bake a cake is compelling him to speak against his wishes.  The baker suggests that the civil rights law puts him in the position of choosing between supporting activities that he does not wish to support or giving up his business to avoid what he believes to be a sin.

Needless to say, these two views of the baker’s role — or any other service provider’s role — in the wedding reception are diametrically opposed.  If this issue had arisen in the 1960s or 1970s in the case of interracial marriages, it is pretty clear how the Supreme Court would have ruled.  The only thing that differs today is that it is two men or two women seeking to marry rather than an African-American and a Caucasian.

Part of the issue here is the nature of baking (or any other similar activity connected with an event).  I do not know who “custom,” the custom cakes are here.  From my own knowledge of friends and families, a wedding cake is not really a custom product.  There are two or three traditional designs and a handful of flavors for the cake, the filling, and the icing.  In other words, a wedding cake is custom in the same way that a car is custom.  The purchaser of a car gets to choose the color of the car and a couple of the features, but it is within the basic models that the dealership offers.  What the customer is purchasing is not the creativity of the baker but his skills — his ability to execute what the customer orders.  While artisans like to emphasize the artistic nature of their professions, they are not being hired to craft a message.  They are being hired to execute the customer’s message.

If the only message is the customer’s message, this case would then fall into the traditional view of civil rights law.  A car rental agency does not endorse the customer’s life choices in renting a car — even if the car is being rented for a special event (like a limo for a prom or wedding).  Instead, the law eliminates any message that the product/service provider may wish to send with their business.  The business is simply complying with the law by providing the good or service.  If the provision of a good or service was compelled speech, then every business that did not want to provide goods or service to any group could claim a free speech exemption.  For example, an apartment complex could claim that renting an apartment to a person a woman getting divorced reflects an endorsement of her choice to get a divorce and is contrary to their belief that women should not be able to divorce their husbands.  That is simply not the way that civil rights laws have worked in the past.

As noted above, this brings us back to Hobby Lobby.  In Hobby Lobby, there were two possible ways to characterize the case — either as the corporation being compelled to provide a particular type of coverage (birth control) in their health care policies making the employer responsible for what the employees did or the corporation simply providing a benefit (health care) with the employee choosing how to use that benefit.  In Hobby Lobby, the Supreme Court accepted the corporation’s characterization of what they were providing, creating a religious liberty issue.  We will see — probably in May or June — whether the Supreme Court takes the baker’s or the customer’s view of what the baker is doing by baking and selling a wedding cake.

 

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Free Speech Uber Alles

By tmess2 | Published June 24, 2017

The late Supreme Court Justice Hugo Black was famous for a very literal interpretation of the First Amendment — that the language in the Amendment providing that “Congress shall make no law” meant that Congress should make no law.  While the current Supreme Court does not go quite as far as Justice Black, a consistent theme of the Roberts Court has been — with the occasional exception that proves the rule — a very broad interpretation of the First Amendment to strike down any law in which the government either directly (by banning it) or indirectly (by favoring other speech) regulates speech.  Simply put, if there is a free speech component to your case, the expectation has to be that the government will lose if the Supreme Court grants review and the only question is exactly how the justices will line-up in the decision.

This week saw the last two free speech opinions of the term (there is a remaining free exercise case that could incorporate some of the recent free speech cases into that sphere of law) — both issued on Monday.  In both cases, the ultimate decision was unanimous, but there was a liberal-conservative split in the reasoning.

The more “traditional” case was Packingham v. North Carolina.  This case involved a North Carolina statute that barred registered sex offenders from accessing commercial social networking website if juveniles could also join that site.  (Under the very broad definition used by North Carolina, this site might qualify.)  All eight justices (the case was heard in February before Justice Gorsuch joined the Court) agreed that the statute was overbroad and not narrowly tailored due to the sheer number of sites covered by the statute that were not primarily designed to facilitate the type of one-on-one real world interaction that the Court saw as the legitimate purpose behind the statute.  The main disagreement in the case — between Justice Kennedy writing for the “liberal” majority and Justice Alito writing for the three conservative justices — was how to characterize the internet.  The majority described the internet as the functional equivalent of public streets and parks.  (In free speech law, streets and parks are considered “public forums” and the government’s ability to regulate is very limited — some content-neutral “time, place, and manner” restrictions like requiring parade permits are allowed, but such restrictions are closely examined to determine that they are not being used to prevent speech.)  From a factual point of view, this analysis is partly accurate.  The internet itself is arguably like a street, but the individual websites are more like private homes and offices.  The dissent — borrowing from language in the majority about the need to be cautious in applying existing legal categories to the internet to avoid inhibiting the speed at which the internet is changing — thought that it was not necessary to categorize the internet as a public forum.  (Because both opinions recognize that preventing crime is a legitimate governmental interest potentially supporting restrictions on sex offenders, there are likely to be future cases considering whether other restrictions — whether imposed on sex offenders on a case-by-case basis or statutes that apply to certain categories of sex offenders across the board — are narrowly tailored.)

The other case — Matal v. Tam — involved the Supreme Court’s growing line of “indirect” restrictions on speech.  The issue in this case — as discussed on prior occasions — was the law permitting the patent office to decline to grant trademark recognition if the item for which trademark recognition was sought “disparaged” any person.  In this case, the “Slants” — an Asian-American rock band — sought and had been denied trademark protection for that name.  Again, all eight justices agreed that the law was unconstitutional — rejecting all arguments that the statute did not actually bar or restrict speech but merely governed a governmental benefit that the government choose to give to certain “favored” speakers.  (While trademark recognition makes it easier for the trademark owner to bring an infringement action, it is not absolutely necessary that the government officially recognize and register a trademark for there to be a legally-protected “common law” trademark.)  As in Packingham, the justices split on some of the reasoning.   Seven of the justices (Justice Thomas did not join this part of the opinion) held that, although the statute only expressly barred trademarks that disparaged persons, the patent office correctly interpreted the law as also barring trademarks that disparaged groups of people (such as derogatory names for certain racial groups).  All eight justices agreed that the trademarks was not governmental speech and, because registration did not endorse the content of the trademark, registration was not governmental speech either.  However, the justices disagreed about how to analyze the rest of the case.

Justice Alito (writing on behalf of himself, the other two conservative justices, and Justice Breyer) rejected the claim that trademark registration was a form of subsidy (holding that the subsidy cases only applied to cash subsidies) or a government program.  Treating trademarks as a “limited public forum” (think public comment session at a local government meeting), the “conservative” opinion noted that regulations limiting permissible speech in such forums had to be viewpoint neutral and the bar on disparaging comments is not viewpoint neutral.   Finally, analyzing the regulation under the relatively relaxed standard that applies to commercial speech, the regulation is still not viewpoint neutral and thus fails the intermediate scrutiny because (like the regulation in Packingham) it is not sufficiently narrowly drawn to match any proposed legitimate governmental interest.

Justice Kennedy (writing on behalf of himself and the remaining three liberal justices) would have applied heightened scrutiny to the regulation (requiring a compelling interest and narrow tailoring rather than the substantial interest required by intermediate scrutiny) because it constituted viewpoint discrimination.  As with the four justices who applied intermediate scrutiny, these four justices found that this regulation failed heightened scrutiny.

While none of the opinions address the rest of the registration statute, the statute also bars registration of trademarks that are “immoral,” “deceptive,” or “scandalous.”  While the bar on deceptive trademarks probably would withstand scrutiny, the bars on “immoral” and “scandalous” trademarks will probably also be struck down in future cases unless a court very narrowly interprets those terms  (For example, by equating immoral with obscene).

The decision in Packingham is the less significant of the two.  When the case was granted, the law looked in trouble and the only question was whether some of the justices might create a “criminal” exception to free speech.  Tam raised more significant questions because it was less clear how to characterize the impact of the regulation and whether it actually restricted speech.  The immediate impact of Tam is that efforts to pressure the Washington Redskins to change their name by denying trademark registration  to that name are gone.  The case also falls into a line of cases that restrict regulations on hate speech unless that speech is associated with a criminal intent (i.e. directed at intimidating or harming a specific individual).   It also represents another link in a line of cases that sees the denial of a governmental benefit based on viewpoint discrimination (except when the viewpoint is closely connected to the purpose of the benefit) as a violation of the applicant’s free speech rights.

Looking at things longer term, while Justice Gorsuch did not participate in either case, the Roberts Court is unlikely to be changing its approach to the First Amendment.  While we still have three April cases left, Justice Gorsuch appears to be lining up with Justice Alito and Justice Thomas more than Justice Kennedy and Chief Justice Roberts.  It is unlikely that this Court is going to walk back from Citizens United.  More significantly, just before Justice Scalia died, the Supreme Court heard a case asking the justices to overturn a prior decision requiring public employees in closed shop states to pay fees to unions to cover the expenses of collective bargaining on behalf of those employees.  The decision in that case was 4-4.  Anti-worker activists have several cases in the  pipeline, and the conservative majority is likely to get another case raising that issue to the Supreme Court soon.  Given the gradual shift among unionized workers from those working in the private sector to those working in the public sector, such a decision would cripple the union movement.  And given the role that the union movement plays in supporting progressive candidates, such a decision would leave the Republican Party and the Koch brothers with a monopoly in campaign spending.

Ten years from now, workers and progressives are going to realize that the 2016 election was a missed opportunity to bring the Supreme Court back to the center.  With Justice Gorsuch on the court, conservatives will continue to use the First Amendment as a battering ram to crush any restrictions on the wealthy buying elections.  While, thanks to Justice Kennedy and Chief Justice Roberts, we might win individual cases on other issues, campaign finance reform is dead for the foreseeable future.

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Supreme Court 2016-17: Forthcoming Opinion Watch

By tmess2 | Published April 30, 2017

Like much in government (including the school-year that many of us remember from growing up), the Supreme Court follows a cyclical calendar.  Beginning with the first Monday in October, the Supreme Court has seven argument sessions each year.  Each session is two weeks followed by a recess.  Five of these recesses are for two weeks, but the recesses taken over Christmas and after the January arguments are usually for four weeks.  During these approximately thirty weeks, the Supreme Court is engaged in three basic tasks:  1) reviewing applications from parties that want their cases heard by the Supreme Court; 2) preparing for and holding arguments in those cases that have been accepted; and 3) writing opinions.  Because the task of preparing for arguments (reading the written arguments of counsel and reviewing the record from the trial court to get an idea of the “facts” underlying to which the law has to be applied) is time consuming, opinions tend to slowly dribble out during these first thirty weeks.  As a result, when the arguments end in late April (or early May depending upon the calendar), there are typically a significant number of cases still waiting for opinions.

During this year’s term, as is not unusual, there were a handful of opinions issued in December and January (a total of six) with the number going up slightly during February, March, and April (a total of twenty-one so far with the possibility of several more on Monday before the Supreme Court leaves for its final recess.  However, with arguments for the year having wrapped up this past Wednesday, there are currently thirty-eight cases in which opinions have not yet been issued.  While there are some exceptions to the rule, by this time of year, the Supreme Court has issued opinions in most of the cases heard last Fall.  During the argument portion of the year, it takes between two and six months to get an opinion.  The simple cases in which there is unanimous agreement among the Justices (which represent about half of the cases) tend to come quickly.  When the Justices disagree, the process stretches out as the Justices in the minority draft opinions responding to the majority opinion, and the majority opinion then makes changes to address the issues raised by the minority (and so on until everyone believes that no further changes are needed).    The bottom line is that, at this point of the year, opinions have been issued for all of the October arguments, for about two-thirds of the November and December arguments, for about half of the January and February arguments, and for none of the March and April arguments.  The expectation, especially for the remaining cases from November and December, is that the delay represents some significant disagreement in the early cases.

Before going into the highlights of what is left to come down — either on Monday or more likely between mid-May and the end of June when the Supreme Court returns from its last recess — one point to make.  Justice Gorsuch only participated in the arguments for this last two-week session.  The tradition is that a Justice does not vote in cases heard before the Justice joined the Supreme Court.  However, it is not unusual to schedule a case for re-argument if the a Justice joins the Court after argument and the vote of the eight Justices who heard the case is split 4-4.

The biggest case still hanging around from November involves the City of Miami, two banks, the Fair Housing Crisis, and the mortgage foreclosure crisis from the George W. Bush era.  Basically, the City contends that the banks engaged in mortgage practices that discriminated against minorities which resulted in those home owners being unable to meet the illegally high mortgage payments.  The City contends that it can sue as an injured party because of the effect on the City of the high number of homes that went into foreclosure in minority neighborhoods.  The banks contend that the City does not have the right to sue because it is not an injured party.  There is also a case about whether U.S. citizenship law (which has different rules depending upon which parent is a U.S. citizen for those born out of wedlock) illegally discriminates based on gender.  As noted in past posts, the Supreme Court tends to evenly distribute the opinion-writing duties from each argument session, and we are still waiting for opinions from Justice Breyer and Justice Ginsburg for November.  As such, it is likely that these two Justices have two of the three outstanding cases, but we do not know who is likely to have the third case.  (With December lacking two opinions, and three Justices without an opinion — there were only seven cases in December — it is more likely than not that whomever got two opinions in November did not get an opinion in December.)  [UPDDATE:  The Fair Housing case was one of two in which opinions were issued on Monday.  The other opinion was the third case from November and both opinions were from Justice Breyer making it likely that Justice Ginsburg has the citizenship gender discrimination case.]

The two cases from December both involve potentially hot button issues.  The first involves the posting of bond in deportation cases.  The second involves challenges to redistricting in North Carolina.   The three justices with outstanding opinions from December are Chief Justice Roberts, Justice Alito, and Justice Kagan.  As noted above, one may have one of the cases from November.  Of the five outstanding cases, I can easily see a 4-4 tie on the City of Miami cases and on the redistricting case.  If they are hopelessly tied, we could see an order as early as Monday resetting them for argument or there may still be an effort to reach a limited decision that could get a majority with the big issues punted for a later case.

The big case from January involves an Asian-American band named “The Slants.”  The Slants want to register the trademark for their name, but federal law permits the government to decline to register a trademark for any trademark that is offensive or derogatory.  The same law is the reasons why the government has de-registered the trademark for the Washington Redskins and the result of this case will determine what happens with the Redskins.  The Slants claim that the law infringes on their free speech right.  The government responds that the trademark law does not prevent the Slants from choosing that name or conveying whatever message they wish through their band name and any associated merchandise.  Instead, the law merely allows the government to choose which the messages that receive whatever additional governmental benefits are conveyed by trademark registration and that the First Amendment (while preventing the government from barring speech based on its content) does not require the government to ignore content in conveying such benefits.  There is also a January case (actually three cases that were consolidated together) involving post-9/11 arrests of Muslims and whether those arrests violated the rights of the persons arrested.

February’s cases include a case of a cross-border shooting by a U.S. Border Patrol Officer and a North Carolina law barring internet use by convicted sex-offenders.

At this point, none of the March or April cases have been decided.  The last two months of cases include several potentially significant cases involving:  the rules for determining whether local zoning laws constitute a regulatory taking when the regulation impacts two adjoining parcels with common ownership; the division of military pensions in divorces; church pension plans; the impact of potential immigration consequences on plea bargains; whether the federal Free Exercise clause preempts a state constitutional provision barring funding of churches when the funding in question is for a secular purpose; and whether the government can strip a naturalized citizen of her citizenship for a false statement that was not material to the decision to grant citizenship.

As always, the designation of certain cases as significant is based on whether the cases directly impact the election process or controversial topics that are likely to be emphasized by candidates and officeholders depending on the outcome of the case.  Besides these cases, there are the normal slew of cases involving the ability of the “small guy” to bring cases against big corporations and criminal law issues as well as technical cases involving minute details of existing law that matter mostly to those in the businesses impacted by those regulations.

Over the next two months, many of the decisions will be unanimous.  Last year, two-thirds of the cases were either unanimous or only had one judge in the dissent.  However, the cases that involve major political issues are also the ones that are most likely to result in 6-3, 5-3, or 5-4 decisions.  Over the next two months, the key things to watch are the degree to which the Chief Justice and Justice Kennedy join the three ultra-conservatives in opinions that would have been unthinkable twenty years ago and — in the dozen or so cases heard in April — whether Justice Gorsuch is more like Chief Justice Roberts, Justice Scalia, Justice Alito, or Justice Thomas.  There are also rumors that one of the sitting justices — most likely Justice Kennedy or Justice Thomas — are considering retirement.  If they do, recent custom indicates that they would announce their retirement as the Supreme Court recesses at the end of June.

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The Supreme Court — Year in Review; Year yet to Come

By tmess2 | Published January 2, 2017

The big court story of 2016 was the February death of Justice Antonin Scalia.  In an unseemly display, before the body was even buried, the Republican leadership in the Senate announced that they would not confirm any nominee made by President Obama.  However, while they did not make any official announcement about other judicial vacancies, the Republicans’ approach to the Supreme Court vacancy was consistent with their approach to the judiciary in general.  The outgoing Senate only confirmed 22 judicial nominees over the last two years and did not confirm anybody nominated after September 2015 (with the last confirmation vote occurring before the July 2016 recess).  By comparison, in the last two years of the George W. Bush Administration, a Democratic Senate confirmed 67 judicial nominees with the last confirmation vote occurring in September 2008 for a person nominated in July 2008.

At the end of the day, the Democrats lost a golden opportunity to bring an end to four decades of Republican control of the Supreme Court.  A win this past November would have led to a solid Democratic majority for the next two or three decades.  However, the reality is that for the past forty years, moderately conservative Republicans on the court have formed a barrier to the more extreme positions in the Republican party winning on several issues.  As such, controlling the Supreme Court has mattered more to Republican leaners than to Democratic leaners.  (Several conservatives argued that Republicans should hold their noses and vote for Trump to keep control of the Supreme Court.)  At some point, Democrats may wake up and find a court in which Justice Samuel Alito is the swing vote, but we are not there yet.  The Republican stand on the Supreme Court probably made some Republican Senate seats more vulnerable than they would have been, but Democrats failed to explain why control of the Supreme Court matters.  Democratic voters may soon suffer for this failure of leadership.

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Supreme Court and Free Speech

By tmess2 | Published July 19, 2015

One of the broad themes of the Roberts Court has been an expansive interpretation of free speech rights (best exemplified by its campaign finance cases).  Over the past seven terms, the Supreme Court has heard twenty-four cases with some free speech aspect.  Despite the public perception, the Supreme Court has not uniformly held in favor of free speech (free speech only having clear wins in 14 of the twenty-four cases and partial wins in 2 of the twenty-four cases).  This term, however, was the roughest term for free speech advocates since at least 2009.

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