October Arguments by Phone, without RBG

Last Wednesday, the Supreme Court confirmed that the October arguments (cases are previewed here) will be conducted by telephone, following the same method used last spring. I have a separate page with information about online access (live and later), but if you’re just looking for a good way to listen live, then I recommend https://www.c-span.org/supremeCourt/. Arguments begin at 10am Eastern.

When the 2020-21 session opens in October with those telephonic arguments, it will be the first time in 27 years that Justice Ruth Bader Ginsburg (who was confirmed in 1993, about two months before the session opened) will not be a member of the Court. I have no words that can contribute to understanding this loss of such an extraordinary jurist. I am appreciative of the survey of her life’s work that Linda Greenhouse has offered us, and of the thoughtful statements and renewals of commitment from advocacy groups like the Center for Constitutional Rights.

Ruth Bader Ginsburg Seed Art Minnesota State Fair 2019 RBG

“Ruth Bader Ginsburg Seed Art Minnesota State Fair 2019 RBG” by Mpls55408 is licensed under CC BY-NC 2.0

About that one Gorsuch opinion….

Yesterday’s Supreme Court decision that Title VII of the Civil Rights Act of 1964 prohibits firing an employee simply because of sexual orientation or gender identity is truly momentous and will mean improved employment security for countless people throughout the country, notably those who live in the majority of jurisdictions with no state- or local-level prohibition on such discrimination. Beyond that wonderful take-away, there is a lot to digest. Much of the mainstream coverage matches my thoughts when I was reading the opinion, but I have a few additional thoughts I’d like to set out regarding Justice Gorsuch’s role and the similarities and differences between this decision and the sexual orientation cases of recent years.

That an opinion prohibiting LGBT discrimination would come from Justice Gorsuch is certainly a major surprise, but Reagan-appointee Justice Kennedy was no obvious ally when he wrote Lawrence v. Texas (striking down sodomy laws) in 2003 or US v. Windsor (striking down the federal Defense of Marriage Act) ten years later, and we were still on the edge of our seats in 2015 before he released the majority opinion in Obergefell v. Hodges (holding that the 14th Amendment requires the state to recognize same-sex marriage). (As an aside, all those decisions were issued on June 26. Yesterday was a break from what some people thought was a tradition, even if based on a very small sample size.)

Still, there is a notable difference in style and tone. The opening paragraph in Lawrence declares that “[t]he instant case involves liberty of the person both in its spatial and more transcendent dimensions.” Obergefell begins “[t]he Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” and Kennedy gets more poetic and philosophical from there.

In contrast, Bostock begins “[s]ometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them.” It then adds that “[i]n our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964,” but that’s as close as we get to recognition of the importance of the rights at issue in these cases. The emphasis — the chosen framework — is on the meaning of the words in the statute; an academic exercise rather than an examination of the principles of rights.

That difference is legally appropriate and, to some extent, required because Kennedy was interpreting constitutional provisions that required him to expound the meaning of “liberty” while Gorsuch was charged with interpreting the meaning of the word “sex” in a Congressional statute. Moreover, other cases had already made clear that “sex” includes sex stereotyping and sexual harassment, and that the statute prohibits other kinds of discrimination that might be given a label that is not one that actually appears in the text of the statue. It is very hard to see an intellectually satisfying way to say LGBT discrimination is not sex discrimination if we’ve already accepted that it is unlawful to discriminate against a woman for being a “tomboy” (to say nothing of the fact that we also (almost) universally accept that it is discrimination on the basis of race even if the person has no bias against any individual’s race but only interracial marriage).

So the Gorsuch opinion is rather bland as judged by its analysis and certainly by its rhetoric. His approach is methodical: there’s a statute that uses specific words, we have established analytical frameworks for how we decide what those words mean as well as significant relevant precedent, and so Gorsuch went through a routine analytical process and came to a logical conclusion.

What is remarkable is that he did not shy away from his own conclusion. It is reassuring that he would rule in a way that almost certainly is against his personal political views and it is deeply troubling that it’s remarkable to us that a Supreme Court Justice appointed by Trump actually cares about analytical consistency and intellectual honesty.

This most certainly does not mean that he is likely to side with what remains of the liberal wing of the Court as a general matter. It doesn’t even mean that he has moderated his views or shifted to an understanding of the law that is closer to those who believe in a “living constitution” or employ other analytical frameworks that more often lead to progressive conclusions. It only means that he might not engage in the kind of tortured logic on display in the dissenting opinions in order to avoid a particular outcome when his own legal analysis happens to bring him to a conclusion that is also one a progressive (or even someone like Posner) might arrive at through different means.  (My initial reaction to Obergefell five years ago also noted that Kennedy got there through a narrow framework that was less valuable for other LGBT rights issues.)

We’ll have to see if this lasts, and it will only be relevant in rare instances. The way Gorsuch approaches other legal issues (such as the free exercise clause and how it applies the the ministerial exception, to mention just one case that should be decided later this month) almost certainly won’t wind up pulling him to conclusions that conflict with his ideology. Regardless, it’s nice to be surprised in this way. Scalia used to occasionally rule in ways that contrasted with how people thought of him, Roberts has repeatedly done so now, and it looks like there’s another Justice who just might surprise us from time to time.

Live streaming

Two historic firsts this morning:  the Supreme Court heard oral arguments in a case via teleconference and it allowed the public to listen in live.  A few quick notes on what I found interesting and tips if you’re considering listening in for other cases this month.  (Notes on the cases are here; this Wednesday and next week are going to be particularly interesting.)

  • The best way to get the arguments appears to be c-span.org/supremeCourt/ .  Other likely sites I checked either weren’t streaming the arguments or had poor audio quality.  Also, c-span followed the arguments with an interesting virtual-panel discussion moderated by National Constitution Center’s Jeff Rosen.
  • The Justices are taking turns!  For anyone who is used to the back-and-forth questioning, this is truly bizarre.  Arguing counsel is allowed to make an opening statement uninterrupted for about 2 minutes, then the Chief Justice asks questions for about 4 minutes, and then each Justice, in order of seniority, gets no more than 4 minutes.  Yes, this also means they ran a little over the usual 30 mins/side. I don’t know if the Chief will become more or less strict with the timing, but this orderly turn-taking is the plan.
    • Justice Thomas used his time and asked multiple questions!  He has previously said that he so rarely participates in oral arguments because he wants to hear arguing counsel make their case without interruptions, so maybe this new format is more acceptable to him.
    • You definitely lose something. Justices can’t follow-up on others’ questions (except as continuation of the prior question) and the “flow” makes less sense, since the questions are based on whose turn it is rather than a topic of inquiry. But it did seem to allow arguing counsel to offer more structured points (although it’s hard to say with a sample size of two; they might have just been especially good litigators).

Radio Interview & Twitter

I surveyed some recent and upcoming Supreme Court cases for a segment on Law & Disorder with Heidi Boghosian and Michael Smith. My segment starts at 31:45.

At the end, they were kind enough to ask where people can follow my writing, and I felt quite outdated in giving a website. So I have now created a Twitter account. Follow @profzwolfe to know when there are new posts here (and, perhaps eventually and rarely, other content).

Amicus Brief in Silk Road Case

Today, my friend Heidi Boghosian and I have filed an amici curiae brief urging the Supreme Court Court to review the conviction and sentence of Ross Ulbricht in the “Silk Road” case.  The petition for cert. was Scotusblog’s “petition of the day” last month. Our brief describes two major areas of concern that the Supreme Court should review and correct.

First, the government tracked Mr. Ulbricht’s internet activity without ever showing probable cause for such a search.  The Circuit Court of Appeals upheld this, finding that monitoring internet activity is subject to no greater privacy protection than monitoring what phone numbers a person dials.  Although the Supreme Court has expressed concern with the privacy interests in online activity, it has never specifically addressed this situation, and it is high time to make clear that our online activity may not be monitored absent a showing of probable cause.
Second, during sentencing, the judge made clear that she was basing the sentence on her belief that Mr. Ulbricht was guilty of murders for hire and causing other deaths—but he was never charged with homicide, and the jury made no findings in this regard.  Over the past decades, the Supreme Court has been reviewing the right to a jury trial where disputed facts would increase a sentence, but again, this particular scenario (of a sentence that is far beyond the Sentencing Guidelines, but technically within the statute) needs to be addressed.  Moreover, the judge expressed hostility to Mr. Ulbricht’s political views in opposition to the “war on drugs” and, of course, sentences based on the judge’s dislike of the defendant’s ideology cannot be tolerated.
The brief was joined by a range of organizations concerned with privacy rights and the right to a jury trial:  National Lawyers Guild, American Conservative Union Foundation Center for Criminal Justice Reform, FreedomWorks, Human Rights Defense Center, Judge Nancy Gertner (ret.), National Coalition to Protect Civil Freedoms, Partnership for Civil Justice Fund, and People’s Law Office.

Amicus in Port Militarization Resistance case

An important case, Panagacos v. Towery, involving Army spying on US activist groups is back at the 9th Circuit, and my friend Heidi Boghosian and I wrote this amici curiae brief on behalf of a number of organizations (Iraq Veterans Against the WarNational Lawyers GuildA.J. Muste InstituteCampaign to Bring Mumia HomeGranny Peace BrigadeTime’s Up!, and War Resisters League).

The brief discusses the historic and contemporary importance of maintaining a line between law enforcement and military operations, and argues that the 9th Circuit should “allow a jury to evaluate the real effects on Plaintiffs’ ability to exercise their constitutional rights of the cumulative practices of Army personnel, working with a local fusion center, in monitoring and acting against the Plaintiff anti-war group Port Militarization Resistance.” More info is on http://www.peoplevtowery.org.

Speculation and Updates: Final decision days

Factual update and speculation…  To speculate first, Scalia offered an unhappy announcement of his dissent in the Affordable Care Act decision, which I think may provide a spoiler on the outcome of the Congressional redistricting case.  The ACA issue was statutory interpretation, and the majority read insurance exchanges “established by the state” to include ones established by the federal government in stead of the state.  To bash this, Scalia referenced the Constitution’s elections clause, and suggested that everyone would agree that Congress using its election-regulating power would not represent “the state legislature” acting (this is from memory, but that’s the gist).  So — if this means that the majority of the Court has agreed that a plain and un-nuanced reading of the elections clause is what commands, then I think the Independent Redistricting Commission is about to lose…  (See the bullets below if you need a refresher on what that case is about.)  It’s possible that he was forecasting another dissent in that case, but that’s not how I heard it.

Further speculation is that I expect we’ll know about that case tomorrow, with marriage on Monday.  I say this simply because it seemed like redistricting is almost ready, and because both Kennedy and Roberts had major opinions today so are a little less likely to have opinions tomorrow (and they seem the most likely authors of a marriage decision).  But that’s a bit of a stretch on my part, and I plan to be in the courtroom tomorrow in any event.

If you plan to attend, know that the public area was full today but the bar section was not.  There was also a fairly sizable set of demonstrators out front.  IMG_3439The Obamacare supporters were chanting (they cleverly had stickers to modify their large signs, depending on the outcome), and I saw people who looked like they had been ready for a decision in the marriage cases.  So even standing outside the courtroom can be a worthwhile experience on big decision days.

Now for objective information:  after today’s decisions, there are now 5 cases that were heard this term but are still undecided, with two announcement days left on the Court’s calendar–tomorrow and Monday.  So an updated recap of what remains (ordered by date of oral argument):

  • Congressional redistricting by independent bodies, Arizona State Legislature v. Arizona Independent Redistricting Commission (argued March 2).  Frustrated with political gamesmanship and claims of racial discrimination in the process of drawing Congressional districts, voters in Arizona amended the state constitution to empower an independent body to draw the districts. Interestingly, Congressional districts are never mentioned in the U.S. Constitution, but it does state that “times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” (Art. I § 4.) Arizona’s legislature seized upon this to challenge the AIRC. Certainly, most people would not call the AIRC “the legislature,” but arguably the phrase refers to any body that makes statutory laws, and a state constitution can vest the legislative power in one body, in a bicameral system, or broken up among multiple bodies with specially defined legislative functions. In addition to the question of whether the Constitution permits the people of Arizona to prescribe this system, the Court must decide whether the legislature has standing to bring this case.
  • Role of cost-benefit analyses in EPA regulations, [3 cases] v. EPA (argued March 25).  Important issues about what the EPA must consider when it regulates power plants.  Fuller analysis is here.
  • Criminal law, Johnson v. US (argued April 20):  (1) Whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act. (2) Whether the residual clause in the Armed Career Criminal Act is unconstitutionally vague.
  • Same-sex marriage, Obergefell v. Hodges (argued April 28).  One of the most high-profile cases of the term.
  • Death penalty drugs, Glossip v. Gross (argued April 29). A challenge to the “three-drug cocktail” commonly used in executions.

 

Marriage Equality

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My thanks to Liberation News for posting my thoughts immediately after yesterday’s arguments in the marriage equality cases:  Struggle for Equality at the Supreme Court.

Please see that link for my analysis of the content of the arguments.  For the Court-watcher readers of this blog, I’ll add a few more random thoughts about the argument-day-as-event:

Accessibility has become a real problem. For the general public, attending this argument would have meant taking three days off work or hiring someone to stand in line for you.  Interesting stories about that in Slate and the NY Times.  I spent many mornings in the public line while in law school, and I don’t remember anything like this–5am the morning of was usually plenty early.  The trouble seems to be that spots in line have become commodified, and it is now not only possible but really necessary to buy your way in. 
Members of the Supreme Court Bar get a separate line and seating area, but it too fills up quickly.  I had resigned myself to being in the “lawyers’ lounge,” a kind of overflow room (a very nice one) where at least we get audio.  Even so, I got on line by 6am and was number 77 for 100 seats. One bar member was in line since noon the day before and yet was in the lounge with me—the courtroom seats were all taken by people who had been there or hired people to be in line for them for at least 24 hours.  Another bar member I’d gotten to know two years ago when we stood next to each other from 4am waiting to get in to the DOMA arguments (and yet were in the lounge; I had made it into the Courtroom the day before for Prop 8, but just barely, and despite a desire to get there earlier, I was moving much more slowly on day two of no sleep…) began lining up on Saturday.  She said she broke down and hired a line-stander but only for a few hours early Tuesday, so she could get a shower before the arguments.  

Inside the courtroom, someone disrupted the arguments, yelling after Mary Bonauto finished her opening argument. Something about Hell; fairly incoherent, and I don’t think just because he was hard to hear. I had seen one disruption before, some years ago, and the Supreme Court Police carried them out with remarkable efficiency.  But this time, the person could be heard yelling for several minutes. Scalia remarked, “rather refreshing, actually.” Jeffrey Toobin had more to say about this episode.  

To end on a positive note, Verrilli was great! The Administration is still constraining him to argue only the equal protection theory, not the fundamental rights theory (which is my bet for what gets Kennedy’s vote), but I think that’s a good thing (not that they’re going to decide based on heightened scrutiny, but it’s at least taking a shot at pushing them there).

Marriage Equality Cert. Denial

This is what I get for following the crowd and saying that a marriage case at the Court was likely this term…  Lots of great coverage of this morning’s big news, but there also seems to be some confusion about what this means for states that are within those Circuits but weren’t party to these cases.  Actually bringing marriage equality to these states is going to require some more litigation, especially if a state decides to continue to fight for its discriminatory marriage laws.

In other words, this post is for those who like lawyer-nerdy, procedural notes.

First, the immediate effect.  There were 5 states that were already under orders from various courts to recognize same-sex marriages, but stay orders put those mandates on hold pending Supreme Court action.  With the Court declining to hear a further appeal, those stay orders either have expired by their own terms or have been lifted by the court that granted it, so the substantive mandates to implement marriage equality is now in effect in Virginia, Indiana, Wisconsin, Oklahoma, and Utah.  This means that there is now marriage equality in a total of 24 states and D.C.

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(Very helpful map from ThinkProgress.)

The next thing to look for is developments in the states that are covered by these Circuit Courts of Appeal, but don’t have any sort of orders against them currently.  We can assume that their laws will not fare well when challenged, but the challenge still has to happen.  A few lawsuits are pending, and the plaintiffs will ask for immediate decisions in those cases; in other states, suits are yet to be filed.  The 6 states to watch now are West Virginia and North and South Carolina (in the 4th Circuit), and Colorado, Kansas, and Wyoming (in the 10th).
[The 7th Circuit was the other court with marriages cases that were denied cert. this morning.  It covers three states:  Illinois already enacted marriage equality through legislation, and Indiana and Wisconsin have orders against them that, as noted above, can now go into effect.  Similarly, the 4th Circuit also includes Maryland, but it adopted marriage equality by voter initiative, and the 10th also includes New Mexico, but its state Supreme Court has already ordered marriage equality on the basis of the state constitution.]

Finally, there are the states in other Circuits.  The 9th Circuit is expected to rule for marriage equality, but cases are also pending in the far more conservative Fifth, Sixth, and Eleventh Circuits.  Then, there are the large number of states where challenges to marriage discrimination is still in the earliest of litigation stages.  Between states that have already adopted marriage equality and the ones mentioned above that presumably will be ordered to do so in fairly short order, same-sex couples will be able to marry in 30 states and DC.  If the 9th Circuit goes as expected, that number will increase to 35 (since four of the nine states in that Circuit already have marriage equality.)

So although this morning’s denial of cert. is great news in several states and good news in a half-dozen more, the rest of the country is still waiting and living under discriminatory laws. That’s frustrating and harmful, and the Court is surely going to have to take this up at some point.  However, by the time it does so, the majority of the country will already have experience with marriage equality.