Monday, June 18, 2018

Today's Partisan Gerrymandering Case: 7-2 for "It's Still Unsettled"

In Gill v. Whitford, the case involving hyper-partisan gerrymandering, the Supreme Court chose not to render a final decision. Instead, the Court returned the case to the lower court for further proceedings.

At issue was the carving of voting districts by a state legislature--here, in Wisconsin--in such a way that favors the political party in power (the Republicans) over a different party (the Democrats), in gross disproportion to the votes the respective parties received statewide, even when the disfavored party receives a majority of those votes. Several Democratic voters challenged the gerrymandering as an unconstitutional dilution of their right to vote. The Supreme Court neither rejected nor upheld their challenge.

What the Court did do was to send the case back to the court below for a fuller exploration of the question of "standing." That is, the Supreme Court returned the case to the lower federal court to allow the two sides an opportunity to more fully litigate whether the challengers had suffered a personal and particularized injury to their voting rights. If the challengers can demonstrate that, then they have the right to bring this lawsuit complaining about the gerrymandering and the Supreme Court has the constitutional authority to hear the case on appeal. If the challengers cannot so demonstrate, then the opposite.

Chief Justice Roberts wrote the majority opinion which was joined by all the Justices except Thomas and Gorsuch. Those two would simply have dismissed the challengers lawsuit and put an end to the case.

In any event, despite the Court's decision not to reach the merits of the case and to rule on the constitutionality of hyper-partisan gerrymandering, today's ruling is not without some especially notable aspects. Let's consider a few of them:

  • Four of the Justices--the Court's liberals: Ginsburg, Breyer, Sotomayor, and Kagan--fully joined Chief Justice Roberts majority opinion. But they also joined together in a separate concurring opinion, authored by Kagan, making clear their shared view that hyper-partisan gerrymandering is unconstitutional. As Kagan put it: "Courts have a critical role to play in curbing partisan gerrymandering...Courts—and in particular this Court—will again be called on to redress extreme partisan gerrymanders. I am hopeful we will then step up to our responsibility to vindicate the Constitution against a contrary law."
  • Chief Justice Roberts' opinion for the Court--which those 4 liberal Justices joined--did not reject the substance of Kagan's concurring opinion. Instead, Roberts' opinion made plain the Court's view, which the liberals shared, that the question of standing had to be resolved as a threshold matter before the Court would reach the substantive merits--i.e., the constitutionality of hyper-partisan gerrymandering.
  • Related to that, Chief Justice Roberts' opinion for the Court left the door open to reconsidering the Court's past decisions which severely limited challenges to partisan gerrymandering--challenges that Kagan's concurring opinion would allow. Roberts' opinion twice referred to "our cases to date." [My emphasis.] His opinion also noted that "We leave for another day consideration of other possible theories of harm" expressed in Kagan's opinion. So again, the Court did not reject the possibility of challenges to hyper-partisan gerrymandering. Rather, the Court actually suggested the possibility of revisiting past decisions in order to allow them.
  • Justices Thomas and Gorsuch were alone in rejecting the Court's decision to allow the challengers an opportunity to demonstrate that their complaint is about "individual legal rights," not simply "generalized partisan preferences."
  • Among the critical questions to be addressed in the further proceedings at the lower court and, ultimately, at the Supreme Court when the case almost assuredly returns are:
    • Can the challengers demonstrate injury to their voting rights that go beyond their own voting districts?
    • Can they demonstrate that their injury necessarily involves the neighboring districts--i.e., redrawing those districts necessarily affected their own districts and, therefore, their own voting rights?
    • Can they demonstrate that their injury involves the entire statewide redrawing of districts, because that affected the statewide influence of their own district representatives?
    • How narrowly personal or more broadly systemic will the Supreme Court construe the challengers' standing--and thus their right to challenge and the Court's jurisdiction to hear--complaints about partisan gerrymandering?
  • Finally, the Court's narrow disposition of this case somewhat mirrors the Court's disposition of the Masterpiece Cakeshop case (where the baker refused to create a cake for the celebration of a same-sex marriage; see The Cakeshop case: What the Court Did NOT Decide). In that case, the Court refrained from deciding whether or not religious objectors are entitled to an exemption from an anti-discrimination law. Although the Court's opinion in that case outlined the pros and cons on that issue, it ruled on the narrow ground that the baker had not been given a fair hearing below. In that case, as in this gerrymandering case, the Roberts Court garnered a broader consensus, by avoiding the broader underlying question and, instead, issuing a narrower and less final resolution. This may well be the approach Chief Justice Roberts resorts to, when possible, to avoid yet another decision where the Justices are deeply divided--and embarrassingly so--along strict partisan lines.
We may get another decision in a major case this coming Thursday. There are some tough, controversial ones to come. (See Supreme Cases Awaiting Decision.) We shall see.

Wednesday, June 13, 2018

Supreme Cases Awaiting Decision

With less than two weeks left before the Supreme Court finishes its term and begins its summer recess, there remain several major--i.e., possibly blockbuster--decisions yet to be announced. They deal with presidential power to restrict foreign entry, partisan gerrymandering, privacy from technological surveillance, union dues, and internet taxation.

Here's a brief recitation:
Presidential Power and Foreign Entry
Trump v. Hawaii. This, of course, is the challenge to President Trump's so-called "travel ban"--the 3rd one. The core substantive issues are whether the ban is overly broad (i.e., whether it restricts the entry of a larger category of foreigners into this country than is reasonably necessary for the purported national security purpose), whether it violates constitutional non-establishment principles by taking sides against Muslims, and even whether the president has the authority to issue such an order under the Constitution or congressional legislation.

Partisan Gerrymandering
Gill v. Whitford. The Court must decide whether courts may even hear cases that challenge a redistricting drawn by a state legislature that favors the majority political party.  If the answer to that is yes, then the Court must decide whether hyper-partisan gerrymandering is constitutional--e.g., where the party in power carves districts so that it wins a significant disproportion of the state's district elections, even though the other party actually wins most of the votes statewide.

Privacy from Technological Surveillance
Carpenter v. United States. This case presents the Court with an ever increasing concern about privacy rights amidst the current technological revolution. The issue involves government surveillance of someone's whereabouts and movements, without a warrant and without probable cause, through the use of data obtained from a company. This critical question involving privacy rights arises largely because of two 4th Amendment doctrines created by the Court.
The first is the so-called "third party" doctrine." Under that doctrine, the Court has ruled that someone has no constitutional rights against the government searching through any information if anyone else lawfully has that information--e.g., information about someone's spending obtained through credit card company records; information about phone calls someone has made and received through a phone company's records. So here, the cell-phone company lawfully has data about the location and movements of someone's cell phone and, thus, under the "third party" doctrine, government may search that data without a warrant or probable cause.
The second is the "trespass" theory of the 4th Amendment, recently revived by the late Justice Scalia in a majority opinion over a blistering concurring opinion by Justice Alito. In that case (U.S. v. Jones, 2011), the unanimous Court held it was unconstitutional for government to monitor a driver's movements, without first obtaining a warrant, through means of a GPS device attached to the driver's car. Scalia declared that the surveillance was an unconstitutional search because the government had trespassed on the driver's private property, his car, by attaching the GPS without his consent. Justice Alito criticized Scalia's reasoning on the ground that the trespass-upon-property theory of the 4th Amendment had long been discarded and because it is entirely inadequate to protect legitimate privacy concerns today inasmuch as most technological surveillance requires no trespass at all--e.g., drones, satellites, cameras, etc.
We'll see if a majority of the Court rejects, limits, or retains those doctrines.

Union Dues
Janus v. American Federation of State, County, and Municipal Employees. The question here is the validity of "agency fees." These are the reduced union dues imposed on public employees who are not members of the public sector union which, nevertheless, is obligated to represent the non-members in collective bargaining and other worker-related matters. The competing interests here are, on the one hand, the fairness to the union and its members to have non-members contribute their "fair share" to help defray the costs incurred by the union in representing them. On the other hand, there are the First Amendment rights of the non-members who do not wish the union to speak for them and do not wish to associate with the union.
At stake is the 1977 precedent, Abood v. Detroit Board of Education, where the Court upheld such non-member dues.

Internet Taxation
South Dakota v. Wayfair, Inc. At stake in this case is another precedent, this one, the 1992 decision in Quill Corp. v. North Dakota, where the Court invalidated state sales taxation on internet sales unless the seller-company had an actual physical presence in the state. The issue for the Court is whether the extraordinary increase in internet commerce and the omnipresence of "virtual storefronts"--on smartphones and tablets and other modern technological devices--makes the physical presence requirement outdated. Also of concern is the unfairness to traditional retailers with actual storefronts who have been subjected to state sales taxes while internet businesses have not.

The decisions in these cases could bring significant change to the law in several enormously important areas of government power, politics, business, working arrangements, and privacy. Indeed, by all accounts, some real blockbusters are expected as the Supreme Court's comes to a close.

Monday, June 11, 2018

Today's Voter Removal Case & Why This Court is Awful

The Supreme Court's decision today in Husted v. A. Philip Randolph Institute upheld Ohio's procedure for removing registered voters from the state's rolls. The vote was 5 to 4. The Justices were split along party lines. All the Republican appointees on one side. All Democratic appointees on the other.

In short, not one Republican Justice found merit in the position of the Democratic Justices. And not one Democratic Justice found merit in the Republicans' position. That, of course, is common with the Court in the last few decades. Certainly on the tough, politically-charged cases. And that doesn't say much for a judicial tribunal whose members are supposed to be neutral, detached, and certainly non-partisan.

This is not about judges--whether on the Supreme Court or some other tribunal--being valueless, disembodied intellects, blind to inequities or other injustices, or unconcerned about the consequences of their decisions. But it is about judges on a court being so polarized along partisan political lines. Not along lines of judicial philosophy, or modes of interpretation, or hierarchy of competing fundamental principles. But split upon the basis of political party and upon the respective political parties' policy preferences.

So in the Husted case, at issue was Ohio's removal of voters who had not been voting and who did not respond to a mailed inquiry. Now, anyone who has been paying any attention to the ongoing debates about voting rights is well aware that Republican and Democratic political officials have been on heated opposite sides. Republican politicians have usually been opposing measures to make registering to vote easier and favoring measures that make actual voting a bit more difficult--typically in the name of reducing voter fraud. Democratic politicians have been opposing and favoring exactly the opposite--typically in the name of protecting the voting rights of minorities, the elderly, and the poor.

And soooooo, before the Husted decision was handed down today, it was a very good bet that the Republican Justices on the Court would vote the way Republican politicians would, and the Democratic Justices the way Democratic politicians would. Indeed, that is precisely how the vote went. 5 Republicans versus 4 Democrats.

The Ohio procedure did result in the removal of voters who had previously been registered. It would even remove some voters who although lawfully registered and still otherwise perfectly eligible to vote, were nevertheless removed without their knowledge and without their wanting to be. On the other hand, Ohio does not remove a voter under its procedure unless 1) there is no "voter activity" for 2 years (i.e., two consecutive years of elections or primaries or even signing a petition, whether federal, state of local), and 2) then there is no response to a mailed notice sent by the state, and 3) then four more years of no voter activity.

Whatever the motivation underlying Ohio's voter removal procedure and whatever the consequences, the legal question in the case was seemingly straightforward: whether the Ohio procedure violated federal law (i.e., the 2002 Help America Vote Act) which says that “no registrant may be removed solely by reason of a failure to vote.” The bare majority of 5 Republican Justices voted no violation; the 4 Democratic Justices said yes.

Speaking through Justice Samuel Alito, the Republican majority focused on the requirement that a voter have failed to respond to the mailed notice as being a reason for removal in addition to the mere failure to vote. So, according to that majority, the Ohio procedure did not violate the federal "failure-to-vote" rule.

Speaking through Justice Stephen Breyer, the 4 Democratic dissenters also focused on the mailed notice but, specifically, on its inadequacy--i.e., it was an unreliable way to determine whether a voter has moved or no longer wished to vote. Hence, the dissenters concluded, the failure to vote was for practical purposes the only reliable basis Ohio was using to remove a voter. (Breyer interwove his argument that federal law required a "reasonable effort" in removal procedures and that the mailed notice was not reasonable.)

Justice Sonia Sotomayor, who joined Breyer's dissenting opinion, also authored a lone one of her own. In it she emphasized the "substantial efforts by States to disenfranchise low-income and minority voters, including programs that purged eligible voters from registration lists because they failed to vote in prior elections." The federal requirements and the Ohio procedures should, according to Sotomayor, be read in light of that history.

Justice Alito's majority opinion dismissed both Breyer's and Sotomayor's arguments as based purely on the dissenters' policy preferences rather than on the only legal question before the Court: whether Ohio had actually violated the federal "failure-to-vote" law.

As anyone but a blind ideologue would recognize, there are strong considerations on both sides of this case. Consider whether Ohio does in fact have some basis other than "failure-to-vote" to remove voters from the rolls? Consider whether that additional basis, the mailed notice and failure to respond, is actually reliable and otherwise reasonable? Consider the history underlying these voter restriction and removal laws and their consequences when interpreting and applying the federal safeguards?

Well, all 5 Republican Justices voted that only the first consideration had any merit. All 4 Democratic Justices disparaged that consideration and found no merit in the majority's failure to give conclusive weight to one of the other considerations.

Again, none of the Republican Justices found merit in the position of the Democrats on the Court. Really? And none of the Democratic Justices found merit in the position of the Republicans. Really? Hmmmm. A polarized, partisan, poor Court.

To be more blunt, an awful Court in my view. Not all the time of course. There are cases, to be sure, where one or more of the Justices will vote with the other party on a politically controversial issue. But when Justice Anthony Kennedy is excluded from consideration, those cases are quite infrequent. On most of these tough, politically-charged cases, its the Republicans versus the Democrats--and we often simply have to see where Kennedy will land.

So maybe, to be more kind and accurate, a polarized, partisan, awful Court, except for Kennedy. And the Husted decision today is another case that demonstrates just that.

Monday, June 4, 2018

The Cakeshop case: What the Court Did NOT Decide

The Supreme Court today ruled in favor of the baker in Masterpiece Cakeshop v. Colorado Civil Rights Commission. In short, the baker had refused on religious grounds to create a cake for a same-sex couple's marriage celebration. The state of Colorado determined that the baker violated the state's law which prohibits discrimination by businesses on the basis of sexual-orientation. The Supreme Court has now reversed that determination and did so on the basis of religious freedom.

BUT! And the BUT is the critical part of the case.

Listening to some commentators and some partisans this morning, it's doubtful they had actually read the Court's decision. Or maybe they have simply been characterizing the decision to fit their preconceptions or preferences.

The 7-2 decision, authored by Justice Anthony Kennedy, held--and only held--that Colorado's Civil Rights Commission was hostile to the baker's religious beliefs and thus did not give him a fair and neutral hearing. Period!

The Court did NOT decide that bakers may refuse to bake cakes for gays or lesbians or same-sex couples.
The Court did NOT decide that bakers may refuse to bake a cake for a same-sex marriage celebration.
The Court did NOT decide that bakers (or any other business) may violate a state's anti-discrimination law.
The Court did NOT decide that bakers (or any other business) may violate such a law even on religious grounds.
The Court did NOT decide that religious freedom outweighs the rights of gays, lesbians or same-sex couples.
The Court did NOT decide that exceptions to anti-discrimination laws must be made for religious objections.
The Court did NOT decide First Amendment religious freedom entitles religious objectors to exemptions from an anti-discrimination law--or any law at all.
The Court did NOT overturn its 1990 decision in Oregon v. Smith that any "an otherwise valid law" defeats religious objections.
The Court did NOT rule any of the foregoing ways on the basis of freedom of expression either.
And the Court certainly did NOT decide that discrimination or other unequal treatment of gays, lesbians, or same-sex couples in public accommodations was constitutionally permissible--for religious or any other reasons.

In fact, the Supreme Court actually reaffirmed that neither "religious [n]or philosophical objections...allow business owners and other actors in the economy to deny protected persons [which includes "gay persons and gay couples"] equal access to goods and services under a neutral and generally applicable public accommodations law."

In this case, the Supreme Court merely found that the determination of the Colorado commission against the baker was not "neutral." In terms of the Court's 1990 Oregon v. Smith precedent, that Colorado determination was not "otherwise valid" because it unlawfully assessed the baker's religious belief as illegitimate and subjected it to ridicule. In the Supreme Court's own words, the Colorado commission "disparage[d]" the baker's religious faith "by describing it as despicable, and also characterizing it as merely rhetorical--something insubstantial and even insincere."

The Court made clear that Colorado's anti-discrimination "interest could have been weighed against [the baker's] sincere religious objections in a way consistent with the requisite religious neutrality." But that, instead, the Colorado commission treated the baker's beliefs with contempt and consequently failed to conduct a fair hearing.

For that reason the Court sided with the baker in this case.
NOT because religious objections to same-sex marriage outweigh the equal rights of same-sex couples to goods and services in the marketplace.

Tuesday, May 15, 2018

(Part 2) The Gorsuch Factor in Coming Supreme Decisions

Neil Gorsuch took his seat on the Supreme Court in April 2017. For the next several weeks, till the end of the Court's term in late June of that year, Gorsuch made his mark. It was quick and pronounced.

Gorsuch with Scalia
Gorsuch had a track record from his years as a federal appellate judge on the 10th Circuit. That was also pronounced. Whether one has a favorable or unfavorable view of that track record, what simply cannot be denied--despite his Senate supporters best efforts--is that Gorsuch's record was a staunchly politically conservative one.
(See the previous post and the earlier ones cited therein: The Gorsuch Factor in Coming Supreme Decisions.)

Gorsuch established the very same sort of record as soon as he joined the Supreme Court last spring. Let's recall his votes and opinions from his several weeks on the Court at the end of last year's term. Again, whether one views his record favorably or not, its politically conservative character is clear--indeed, strident.

Death Penalty
In McGehee v. Hutchinson, Gorsuch cast his first public vote. He broke the Supreme Court's 4-4 tie to allow Arkansas to proceed with several executions that the state was rushing to complete, because its supply of lethal drugs was expiring.

Campaign Finance
In Republican Party of Louisiana v. FEC, the Court's majority summarily upheld--in a four word entry--a provision of the federal campaign finance law that prohibits unregulated contributions to political parties. Gorsuch, together with Justice Thomas, noted his disagreement with the majority and voted to take the case for a full appeal.

Employee Grievance
In Perry v. Merit Systems Protection Board, a 7-2 majority of the Court ruled that a worker could seek full judicial review of his discrimination claim, even though it was part of a civil service complaint. Gorsuch, joined by Thomas, dissented to require courts to affirm administrative rulings against workers, unless those rulings are utterly irrational.

Trump's Travel Ban
In Trump v. Int'l Refugee Asst Project, a  6-3 majority of the Court continued the injunction against much of the travel ban, but allowed the ban against persons "lack[ing] any bona fide relationship" to the United States." Gorsuch joined Thomas's dissenting opinion, arguing that even persons with "a close familial relationship" with an American could be banned by Trump.

Gay Rights
In Pavan v. Smith, on the basis of Obergefell v. Hodges--which recognized same-sex couples' right to marry--a 6-3 majority summarily invalidated Arkansas's refusal to include the name of  a same-sex spouse on the birth certificate of the biological mother's child. Gorsuch, joined by Thomas and Alito, dissented, arguing that "nothing in Obergefell" prevents a state from limiting birth certificates to biological parents.

Gun Rights
In Peruta v. California, the Court declined to review a  California law which generally prohibits concealed guns in public places. Gorsuch joined Thomas's dissent complaining that the majority's decision not to take the case "reflects a distressing trend: the treatment of the Second Amendment as a disfavored right." They also insisted that "the Framers made a clear choice [about] the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right."

Just consider the politically conservative position in these cases. Not the judicially restrained or strict constructionist or policy neutral positions. But the most likely position that would be taken by politically conservative politicians and ideologues.

Those are the positions taken by Justice Gorsuch. And those are the positions he consistently took as an appellate judge as well as during his first several weeks on the Court last year.

With that unmistakable track record, Justice Gorsuch would need to undergo a radical transformation not to have the same, stridently politically conservative record in the significant cases the Court will soon decide as it ends its term.