Even for Supreme Court nerds, the legal issue in the case argued on Wednesday [Oct. 14] might have seemed impenetrably technical and minimally significant at most. But the stakes in Campbell-Ewald Co. v. Gomez are actually quite high as business groups join the Michigan-based marketing company in backing a legal tactic to kill potential class action suits before they can get started.
Jose Gomez sued Campbell-Ewald under the federal Telephone Consumer Protection Act for an unsolicited recruiting message the company sent out under contract with the U.S. Navy. The company offered to pay Gomez $1,503 for each unsolicited message and to promise to send no more. Gomez, who had filed the suit as a potential class action on behalf of other privacy-invaded text message users, never accepted the settlement.
At the Supreme Court, the company’s high-priced Washington lawyer, former U.S. solicitor general Gregory Garre, argued the case was over: moot, in legal terms. Gomez’s attorney, Stanford law professor Jonathan Mitchell, said, in essence, not so fast. And, however technical the issue might seem, the justices divided predictably along ideological lines, with three conservatives eager to kick the case and three liberals not so much.
The case is one of three that the Roberts Court conservatives have teed up for the term in what appears to be a continuing campaign to rein in class actions. Consumers, workers, and investors use this legal device to pool low-figure legal injuries into financially viable lawsuits against business defendants. Business interests regard them as a form of legal blackmail that companies settle to avoid expensive litigation and the risk of seven- or eight-figure damage awards.
Two more class action cases are set for argument in November. In Tyson Foods Co. v. Bouaphakeo, the big food processing company wants to thwart a class action brought by workers who say they are being denied overtime for time spent putting on or taking off work-required protective gear (argument: Nov. 10). In the other, Spokeo, Inc. v. Robins, the search engine company is seeking to avert a class action brought under the Fair Credit Reporting Act by a Chicago man allegedly injured by inaccurate information reported about him (argument: Nov. 2).
The U.S. Chamber of Commerce has joined in each of the cases with various other business and conservative interest groups to urge the court to rule for the companies and limit legal tactics for plaintiffs in future cases. The Chamber has an impressive 69 percent win rate with the Roberts Court: higher than the 56 percent win rate with the Rehnquist Court, according to the Constitutional Accountability Center.
Those business victories includ several big ones that limit class actions. In the highest-profile decision, the court in 2011 spared Walmart, the nation’s largest private employer, from a big sex discrimination suit brought on behalf of women employees. The 5-4 ruling in Wal-Mart Stores, Inc. v. Dukes, divided along ideological lines, forced plaintiffs’ attorneys to slice the suit into smaller pieces under procedural rules that still blocked success.
In last week’s case, Garre made clear that class actions are the target in Campbell-Ewald’s seemingly arcane civil procedure question. “As a practical matter,” Garre told the justices, plaintiffs in class actions “get pennies on the dollars for their claim. The big money goes to the class-action lawyers.”
From the bench, Justice Elena Kagan tried to steer the argument away from that debate. “Both sides have these class action policy arguments,” Kagan told Garre. “But it’s important not to let those drive this pretty technical mootness question.” Kagan, along with liberal colleagues Ruth Bader Ginsburg and Sonia Sotomayor, repeatedly insisted that Campbell-Ewald had not offered Gomez “complete” relief for his claim because he still had a request for attorney’s fees and a permanent court-ordered injunction.
From the opposite perspective, Chief Justice John G. Roberts Jr. wondered why a court should “waste its time” on Gomez’s case, but he recognized what was at stake. “This is all about class certification,” Roberts told Gomez’s attorney, Mitchell. Conservatives Antonin Scalia and Samuel A. Alito Jr. signaled their distaste for the suit just as bluntly. Alito in particular echoed Garre’s unfavorable opinion about class action lawyers.
As usual, Justice Anthony M. Kennedy appeared likely to hold the decisive vote. In an early exchange with Garre, Kennedy indicated he was not buying the argument for ditching the case, as a matter of civil procedure. Kagan’s effort to defuse the policy arguments may have been intended to give Kennedy a narrow ground to join the liberal bloc without going back on his previous votes to limit class actions.
The Obama administration backed the plaintiffs’ side of the case — in contrast to the Bush administration’s support for business defendants in previous class action cases. Liberal groups backed Gomez, but so did the conservative National Right to Work Legal Defense Foundation, which uses class actions to sue labor unions.
The plaintiffs’ bar fears that a ruling for Campbell-Ewald will give business defendants a road map for blocking class actions by paying off individual plaintiffs one at a time — in effect, for pennies on the dollar of the potential awards in a mass suit. Given the Roberts Court’s pro-business track record, they have reason to worry.
Sunday, October 18, 2015
Sunday, October 11, 2015
Hope in Congress for Sentencing Reform?
Criminal justice reformers have joined with fiscal conservatives in an improbable alliance to reduce the population of the nation’s federal prisons. It turns out that sending low-level drug offenders into overcrowded prisons for years on end, based on mandatory minimum sentences with little leeway for judges to exercise discretion or even common sense, is both expensive and counterproductive. Who knew?
The broad agreement on federal sentencing reform is behind the impending release of some 6,000 drug offenders at the end of the month under a policy adopted more than a year ago by the U.S. Sentencing Commission with acquiescence by Congress. The long-planned release made front-page news last week, but it “barely scrapes the surface” of the problems in the 30 percent overcapacity federal prison system, according to the Marshall Project, the invaluable compendium of criminal justice news.
Sentence reformers are now turning their lonely eyes to Congress after broad measures with bipartisan cosponsors were introduced in both the Senate and the House of Representatives. Douglas Berman, a professor at Ohio State University’s Moritz College of Law and author of the comprehensive blog Sentencing Law and Policy, was so encouraged as to foresee the possibility that a bill could reach the president’s desk for signature by the end of this year.
Berman’s optimism seems at odds with the evidence of dysfunctionality on Capitol Hill, accentuated by Republicans’ chaotic inability to choose their candidate for Speaker of the House. Still, the reformers appear to have succeeded in overcoming their biggest single obstacle by getting the very skeptical Senate Judiciary Committee chairman, Iowa’s Charles Grassley, to sign on as lead sponsor of the Senate measure along with three other Republicans and five Democrats.
The Senate bill, introduced Oct. 1, runs 141 pages, so long that Berman confessed on his blog that he was not yet ready to analyze it in detail. Grassley confirmed his support in an op-ed in his home state Des Moines Register by describing the provisions as “carefully crafted sentencing reforms . . . that do not compromise public safety or national security.”
The House bill, a more compact 18 pages, was introduced on Oct. 8 with bipartisan support from the chairman, ranking Democrat, and other members of the House Judiciary Committee. On his blog, Berman described introduction of the Senate bill as a “huge development.” The House measure made him “a bit more optimistic” about possible enactment in 2015.
Both bills take significant swipes at the mandatory-minimum craze in Congress from the 1980s and ’90s that gave drug offenders and armed felons long sentences beyond federal judges’ ability to soften. Both bills reduce some of the mandatory minimums for drug offenses and eliminate the current three-strike mandatory life provision. That provision parallels laws enacted in several states and upheld by the Supreme Court in 2003 against a challenge under the Eighth Amendment’s Cruel and Unusual Punishment Clause (Ewing v. California, Lockyer v. Andrade).
The two bills also widen somewhat the existing “safety valve” provision to give federal judges somewhat more leeway to soften sentences in individual cases. The Senate bill creates a second safety-valve to allow judges to sentence some offenders below 10-year minimums, but stresses that defendants convicted of “serious violent and serious drug felonies” will not benefit from the provision. And both bills would apply the provisions retroactively.
Smooth passage of bills is by no means assured in either chamber. Writing on the blog Crime and Consequences of the pro-law enforcement Criminal Justice Legal Foundation, former federal prosecutor William Otis began picking the Senate bill apart by noting a provision to ease add-on minimums for defendants convicted of using a firearm in a drug felony.
Otis, an outspoken opponent of sentencing reform as the issue has gained support, noted that senators introduced the bill on the same day as the mass shooting at a community college in Oregon. “What were these people thinking?” Otis asked, even while acknowledging that the Oregon shooter had no apparent connection to drug-dealing.
Criminal justice reformers have long argued that the long, mandatory sentences that Congress authorized and presidents of both parties signed into law scooped up many low-level offenders. The advocacy group Families Against Mandatory Minimums lobbied to soften the terms and slowly picked up support from libertarians and fiscally-minded conservatives.
Congress took a modest step in 2010 by passing a bill that eliminated the racial disparity between sentences for crack and powder cocaine. With support for broader steps increasing among conservatives, the Republicans’ gains in the 2014 midterm elections stirred speculation that sentencing reform’s time could be coming.
Earlier, however, the Sentencing Commission, the independent judicial agency, had voted in April 2014 to authorize two-step reductions in sentences for some federal drug offenders. Once Congress had failed to block the so-called “drugs -2” policy, the seven-member commission directed that releases were to begin in November 2015. The one-year lead time gave federal judges time to rule on individual cases; about 2,000 applications for reduced sentences have been denied so far.
With bills pending in Congress, Berman raised the question whether the Sentencing Commission could institute some of the reforms on its own. Berman is entitled to his optimism, but longtime Capitol Hill observers may rightly see the latter suggestion as more fruitful than hoping for Congress to act.
The broad agreement on federal sentencing reform is behind the impending release of some 6,000 drug offenders at the end of the month under a policy adopted more than a year ago by the U.S. Sentencing Commission with acquiescence by Congress. The long-planned release made front-page news last week, but it “barely scrapes the surface” of the problems in the 30 percent overcapacity federal prison system, according to the Marshall Project, the invaluable compendium of criminal justice news.
Sentence reformers are now turning their lonely eyes to Congress after broad measures with bipartisan cosponsors were introduced in both the Senate and the House of Representatives. Douglas Berman, a professor at Ohio State University’s Moritz College of Law and author of the comprehensive blog Sentencing Law and Policy, was so encouraged as to foresee the possibility that a bill could reach the president’s desk for signature by the end of this year.
Berman’s optimism seems at odds with the evidence of dysfunctionality on Capitol Hill, accentuated by Republicans’ chaotic inability to choose their candidate for Speaker of the House. Still, the reformers appear to have succeeded in overcoming their biggest single obstacle by getting the very skeptical Senate Judiciary Committee chairman, Iowa’s Charles Grassley, to sign on as lead sponsor of the Senate measure along with three other Republicans and five Democrats.
The Senate bill, introduced Oct. 1, runs 141 pages, so long that Berman confessed on his blog that he was not yet ready to analyze it in detail. Grassley confirmed his support in an op-ed in his home state Des Moines Register by describing the provisions as “carefully crafted sentencing reforms . . . that do not compromise public safety or national security.”
The House bill, a more compact 18 pages, was introduced on Oct. 8 with bipartisan support from the chairman, ranking Democrat, and other members of the House Judiciary Committee. On his blog, Berman described introduction of the Senate bill as a “huge development.” The House measure made him “a bit more optimistic” about possible enactment in 2015.
Both bills take significant swipes at the mandatory-minimum craze in Congress from the 1980s and ’90s that gave drug offenders and armed felons long sentences beyond federal judges’ ability to soften. Both bills reduce some of the mandatory minimums for drug offenses and eliminate the current three-strike mandatory life provision. That provision parallels laws enacted in several states and upheld by the Supreme Court in 2003 against a challenge under the Eighth Amendment’s Cruel and Unusual Punishment Clause (Ewing v. California, Lockyer v. Andrade).
The two bills also widen somewhat the existing “safety valve” provision to give federal judges somewhat more leeway to soften sentences in individual cases. The Senate bill creates a second safety-valve to allow judges to sentence some offenders below 10-year minimums, but stresses that defendants convicted of “serious violent and serious drug felonies” will not benefit from the provision. And both bills would apply the provisions retroactively.
Smooth passage of bills is by no means assured in either chamber. Writing on the blog Crime and Consequences of the pro-law enforcement Criminal Justice Legal Foundation, former federal prosecutor William Otis began picking the Senate bill apart by noting a provision to ease add-on minimums for defendants convicted of using a firearm in a drug felony.
Otis, an outspoken opponent of sentencing reform as the issue has gained support, noted that senators introduced the bill on the same day as the mass shooting at a community college in Oregon. “What were these people thinking?” Otis asked, even while acknowledging that the Oregon shooter had no apparent connection to drug-dealing.
Criminal justice reformers have long argued that the long, mandatory sentences that Congress authorized and presidents of both parties signed into law scooped up many low-level offenders. The advocacy group Families Against Mandatory Minimums lobbied to soften the terms and slowly picked up support from libertarians and fiscally-minded conservatives.
Congress took a modest step in 2010 by passing a bill that eliminated the racial disparity between sentences for crack and powder cocaine. With support for broader steps increasing among conservatives, the Republicans’ gains in the 2014 midterm elections stirred speculation that sentencing reform’s time could be coming.
Earlier, however, the Sentencing Commission, the independent judicial agency, had voted in April 2014 to authorize two-step reductions in sentences for some federal drug offenders. Once Congress had failed to block the so-called “drugs -2” policy, the seven-member commission directed that releases were to begin in November 2015. The one-year lead time gave federal judges time to rule on individual cases; about 2,000 applications for reduced sentences have been denied so far.
With bills pending in Congress, Berman raised the question whether the Sentencing Commission could institute some of the reforms on its own. Berman is entitled to his optimism, but longtime Capitol Hill observers may rightly see the latter suggestion as more fruitful than hoping for Congress to act.
Friday, October 2, 2015
For Court's Conservatives, New Term Starts Now
The Supreme Court opens a new term on Monday [Oct. 5], with conservative justices still licking their wounds after a term when they were on the losing side of most of the most important decisions. But for conservatives, this may be the new season that diehard sports fans are always told to wait until.
The court has already teed up cases that give the conservatives the chance to deliver a gut punch to public employee unions, limit racial preferences in college and university admissions, and make class actions a little bit harder for consumers and workers. Farther back in the pipeline are new cases on state laws regulating abortion clinics and a second round on the contraception coverage mandate under the Affordable Care Act.
Out on the hustings during the summer recess, two of the conservatives, Antonin Scalia and Samuel A. Alito Jr., both restated the losing arguments in their dissents from the 5-4 decision to recognize a constitutional right to marriage equality for gay and lesbian couples. Speaking at Rhodes College in Memphis, Tenn. [Sept. 21], Scalia called the decision “the furthest imaginable extension of the Supreme Court doing whatever it wants.”
Earlier, Alito had complained that the marriage decision opened the door to striking down all sorts of laws under an expansive definition of liberty under the Due Process Clause. “There’s no limit,” Alito said in a friendly interview with conservative commentator Bill Kristol.
Other liberal victories last term included the 6-3 ruling to uphold health insurance subsidies under the Affordable Care Act and the 5-4 decision to ratify a broad definition of discrimination under the Fair Housing Act. But the final day saw two significant conservative victories, both on 5-4 votes. The court threw out the Environmental Protection Agency’s rules on toxic emission by power plants and rejected a challenge to the drugs used in lethal injection executions.
Turning the page, liberal experts and advocacy groups are now bracing for a conservative term. The conservative bloc appears to be the driving force in getting some potential game-changers on to the calendar.
The public employee union case, Friedrichs v. California Teachers Association, is the prime example. In a 5-4 decision in 2014, the court’s conservatives stopped just short of overruling a 1977 decision (Abood) upholding so-called “fair share” laws. Those laws, on the books in 20 states, require non-union members to pay the part of union dues used to represent them in collective bargaining. The new case, financed by anti-union groups, asks the court directly to overrule the prior decision, a ruling that would give non-union members a free ride and hitt unions hard in their treasuries.
The affirmative action case, Fisher v. University of Texas, also gives the court’s conservatives a second chance to take a bite out of a liberal precedent. UT’s flagship Austin campus uses race as a factor in admitting about 20 percent of its incoming first-year class, as allowed under a 2003 decision (Grutter). Ruling in the first round of this challenge, the court in 2013 told the federal appeals court in Texas to take a harder look at the policy. Now, the justices will be taking a hard look at the appeals court’s conclusion that the university’s policy passes constitutional muster.
The court’s conservatives have time and again signaled their disquiet with class actions, the procedural tool used to turn de minimis injuries suffered by large numbers of consumers or workers into a viable lawsuit. Among several civil litigation cases, the most important appears to be Tyson Foods, Inc. v. Bouaphakeo, a case brought by workers at an Iowa meat processing plant claiming that Tyson has failed to pay overtime as required by federal law. The company did not keep good records, so the workers used statistical projections to calculate damages. The conservatives are likely to flinch at what they have previously called “trial by formula.”
The court has not heard an abortion case since the 5-4 decision in 2007 (Carhart II) that upheld the federal law banning so-called partial birth abortions. Anti-abortion groups have used the court’s silence to enact laws regulating abortion clinics, ostensibly to promote women’s health but in reality to close as many clinics as possible. A Mississippi law would close the only clinic in the state; Texas’s law would leave only 10 clinics operating, none in the western part of the state. Those laws seem to run afoul of the court’s 1992 decision, Planned Parenthood v. Casey, that states cannot impose an “undue burden” on abortion rights. But anti-abortion forces hope the Roberts Court will take a relaxed view of that standard.
The Obamacare contraception mandate is headed back to the court in cases brought by religious nonprofits: examples, a Catholic charity or college. They object on religious freedom grounds to signing a form for their health plans to provide cost-free coverage of contraceptives as required under an Affordable Care Act regulation. Seven out of eight federal courts of appeals to rule on the issue have rejected the argument. But the Roberts Court conservatives took an expansive view of religious freedom in the earlier decision (Hobby Lobby) allowing a private employer to skirt the regulation.
With 13 cases added on Thursday [Oct. 1], the court now has enough to fill the calendar into January. As always, many cases are only partly ideological; and some, not at all. But on opening day, the court’s conservatives may well be thinking that this, indeed, is their year.
The court has already teed up cases that give the conservatives the chance to deliver a gut punch to public employee unions, limit racial preferences in college and university admissions, and make class actions a little bit harder for consumers and workers. Farther back in the pipeline are new cases on state laws regulating abortion clinics and a second round on the contraception coverage mandate under the Affordable Care Act.
Out on the hustings during the summer recess, two of the conservatives, Antonin Scalia and Samuel A. Alito Jr., both restated the losing arguments in their dissents from the 5-4 decision to recognize a constitutional right to marriage equality for gay and lesbian couples. Speaking at Rhodes College in Memphis, Tenn. [Sept. 21], Scalia called the decision “the furthest imaginable extension of the Supreme Court doing whatever it wants.”
Earlier, Alito had complained that the marriage decision opened the door to striking down all sorts of laws under an expansive definition of liberty under the Due Process Clause. “There’s no limit,” Alito said in a friendly interview with conservative commentator Bill Kristol.
Other liberal victories last term included the 6-3 ruling to uphold health insurance subsidies under the Affordable Care Act and the 5-4 decision to ratify a broad definition of discrimination under the Fair Housing Act. But the final day saw two significant conservative victories, both on 5-4 votes. The court threw out the Environmental Protection Agency’s rules on toxic emission by power plants and rejected a challenge to the drugs used in lethal injection executions.
Turning the page, liberal experts and advocacy groups are now bracing for a conservative term. The conservative bloc appears to be the driving force in getting some potential game-changers on to the calendar.
The public employee union case, Friedrichs v. California Teachers Association, is the prime example. In a 5-4 decision in 2014, the court’s conservatives stopped just short of overruling a 1977 decision (Abood) upholding so-called “fair share” laws. Those laws, on the books in 20 states, require non-union members to pay the part of union dues used to represent them in collective bargaining. The new case, financed by anti-union groups, asks the court directly to overrule the prior decision, a ruling that would give non-union members a free ride and hitt unions hard in their treasuries.
The affirmative action case, Fisher v. University of Texas, also gives the court’s conservatives a second chance to take a bite out of a liberal precedent. UT’s flagship Austin campus uses race as a factor in admitting about 20 percent of its incoming first-year class, as allowed under a 2003 decision (Grutter). Ruling in the first round of this challenge, the court in 2013 told the federal appeals court in Texas to take a harder look at the policy. Now, the justices will be taking a hard look at the appeals court’s conclusion that the university’s policy passes constitutional muster.
The court’s conservatives have time and again signaled their disquiet with class actions, the procedural tool used to turn de minimis injuries suffered by large numbers of consumers or workers into a viable lawsuit. Among several civil litigation cases, the most important appears to be Tyson Foods, Inc. v. Bouaphakeo, a case brought by workers at an Iowa meat processing plant claiming that Tyson has failed to pay overtime as required by federal law. The company did not keep good records, so the workers used statistical projections to calculate damages. The conservatives are likely to flinch at what they have previously called “trial by formula.”
The court has not heard an abortion case since the 5-4 decision in 2007 (Carhart II) that upheld the federal law banning so-called partial birth abortions. Anti-abortion groups have used the court’s silence to enact laws regulating abortion clinics, ostensibly to promote women’s health but in reality to close as many clinics as possible. A Mississippi law would close the only clinic in the state; Texas’s law would leave only 10 clinics operating, none in the western part of the state. Those laws seem to run afoul of the court’s 1992 decision, Planned Parenthood v. Casey, that states cannot impose an “undue burden” on abortion rights. But anti-abortion forces hope the Roberts Court will take a relaxed view of that standard.
The Obamacare contraception mandate is headed back to the court in cases brought by religious nonprofits: examples, a Catholic charity or college. They object on religious freedom grounds to signing a form for their health plans to provide cost-free coverage of contraceptives as required under an Affordable Care Act regulation. Seven out of eight federal courts of appeals to rule on the issue have rejected the argument. But the Roberts Court conservatives took an expansive view of religious freedom in the earlier decision (Hobby Lobby) allowing a private employer to skirt the regulation.
With 13 cases added on Thursday [Oct. 1], the court now has enough to fill the calendar into January. As always, many cases are only partly ideological; and some, not at all. But on opening day, the court’s conservatives may well be thinking that this, indeed, is their year.
Sunday, September 27, 2015
Giving Religious Liberty a Bad Name
Religion and politics can be a combustible mix, but keeping church and state separate have helped the United States prevent the kinds of sectarian conflagrations seen in many nations around the globe. Justice Sandra Day O’Connor made that point when she joined the Supreme Court’s decision a decade ago to block the display of the Ten Commandments in a Kentucky courthouse.
“Those who would renegotiate the boundaries between church and state must [ ] answer a difficult question,” O’Connor wrote in McCreary County v. ACLU (2005). “Why would we trade a system that has served us so well for one that has served others so poorly?"
Today, the same impulse behind McCreary County’s decision to post religious laws in a secular courthouse can be seen in the scattered resistance in a handful of courthouses to recognizing same-sex marriages. Clerks and judges in 13 counties in three states — Alabama, Kentucky, and Texas — are claiming that their religious beliefs allow them, as government officials, to deny or at least disparage the constitutional right of gay and lesbian couples to equality before the law.
The clerks and judges who are spurning same-sex couples insist that their rights are at stake in the conflict, not those of gay and lesbian couples. “I do not believe we have to check our religious beliefs at the door when we are elected,” Nick Williams, a probate judge in Washington County, Ala., remarked to CBS News correspondent Jericka Duncan.
Williams has a petition pending before the Alabama Supreme Court seeking an order that would allow him to refuse to issue what the petition filed on Sept. 15 calls “a license to engage in sodomy.” Williams is in effect rejecting two Supreme Court decisions: the ruling in June striking down state bans on same-sex marriage and the decision in 2003 nullifying state laws against gay sex.
Alabama Chief Justice Roy Moore signaled his intention months in advance of the Supreme Court ruling to defy any decision recognizing same-sex marriage. The Alabama court has yet to act on Williams’ petition; Williams’ attorney says an order would also protect the five other probate judges in the state who are refusing to license same-sex marriages.
Meanwhile, Kim Davis, the defiant county clerk in Rowan County, Ky., is risking a second confrontation with a federal judge who sent her to jail for disobeying his order to issue marriage licenses to couples, gay or straight. U.S. District Court Judge David Bunning ordered Davis released on Sept. 8 on the condition that she not interfere with marriage licenses any further.
Davis ordered the marriage licenses changed instead, with her name removed and a notation that the licenses were being issued under the authority of a federal court. Lawyers for the American Civil Liberties Union representing same-sex couples warn that the changes in the form cast doubt on the validity of the licenses.
Whatever else happens in Davis’s case, she has succeeded mostly in giving religious accommodation a bad name. Earlier polls suggested that the public was closely divided on the somewhat analogous issue whether individuals such as bakers or photographers could claim a religious right to refuse to provide services to same-sex weddings. But a Washington Post-ABC poll released Sept. 15 found 63 percent of those surveyed said Davis should be required to issue licenses and 45 percent even supported her having been jailed for refusing.
The modern era of religious accommodation began with the Supreme Court’s 1963 decision Sherbert v. Verner invoking the First Amendment’s free-exercise-of-religion clause to allow unemployment benefits to a Seventh Day Adventist fired for refusing to work on Saturdays, the Adventists’ Sabbath. Significantly for the present context, Adell Sherbert was not seeking to be hired back. A year after the decision, however, Congress included in the Civil Rights Act of 1964 a provision giving employees a workplace right to reasonable accommodations of their religious beliefs.
The Supreme Court scrapped the First Amendment test set out in Sherbert in the 1990 decision, Employment Division v. Smith. The ruling effectively blocked use of the Free Exercise Clause to gain religious accommodations from generally applicable laws. Congress responded three years later by restoring the previous test as a matter of statutory instead of constitutional law in the Religious Freedom Restoration Act (RFRA).
RFRA was the basis for the Supreme Court’s controversial Hobby Lobby decision in 2014 allowing private employers to invoke religious beliefs in refusing a requirement to include cost-free contraceptives in employee health plan. In a dissent, Justice Ruth Bader Ginsburg noted that in previous decisions the Supreme Court said religious accommodations would not be allowed if they significantly affected third-parties’ rights.
In the majority opinion, Justice Samuel A. Alito Jr. batted away Ginsburg’s warning that the ruling threatened enforcement of civil rights laws. But as the gay marriage cases advanced, many states moved to pass or strengthen mini-RFRAs for the precise purpose of allowing anti-gay discrimination.
So far, the photographers and bakers are losing in courts or administrative agencies. The judges and clerks are stretching the religious liberty argument even further by claiming the right to turn gay and lesbian couples away at the courthouse door. The discord they have stirred up shows once again the wisdom of trying to keep religion and politics, church and state, apart.
“Those who would renegotiate the boundaries between church and state must [ ] answer a difficult question,” O’Connor wrote in McCreary County v. ACLU (2005). “Why would we trade a system that has served us so well for one that has served others so poorly?"
Today, the same impulse behind McCreary County’s decision to post religious laws in a secular courthouse can be seen in the scattered resistance in a handful of courthouses to recognizing same-sex marriages. Clerks and judges in 13 counties in three states — Alabama, Kentucky, and Texas — are claiming that their religious beliefs allow them, as government officials, to deny or at least disparage the constitutional right of gay and lesbian couples to equality before the law.
The clerks and judges who are spurning same-sex couples insist that their rights are at stake in the conflict, not those of gay and lesbian couples. “I do not believe we have to check our religious beliefs at the door when we are elected,” Nick Williams, a probate judge in Washington County, Ala., remarked to CBS News correspondent Jericka Duncan.
Williams has a petition pending before the Alabama Supreme Court seeking an order that would allow him to refuse to issue what the petition filed on Sept. 15 calls “a license to engage in sodomy.” Williams is in effect rejecting two Supreme Court decisions: the ruling in June striking down state bans on same-sex marriage and the decision in 2003 nullifying state laws against gay sex.
Alabama Chief Justice Roy Moore signaled his intention months in advance of the Supreme Court ruling to defy any decision recognizing same-sex marriage. The Alabama court has yet to act on Williams’ petition; Williams’ attorney says an order would also protect the five other probate judges in the state who are refusing to license same-sex marriages.
Meanwhile, Kim Davis, the defiant county clerk in Rowan County, Ky., is risking a second confrontation with a federal judge who sent her to jail for disobeying his order to issue marriage licenses to couples, gay or straight. U.S. District Court Judge David Bunning ordered Davis released on Sept. 8 on the condition that she not interfere with marriage licenses any further.
Davis ordered the marriage licenses changed instead, with her name removed and a notation that the licenses were being issued under the authority of a federal court. Lawyers for the American Civil Liberties Union representing same-sex couples warn that the changes in the form cast doubt on the validity of the licenses.
Whatever else happens in Davis’s case, she has succeeded mostly in giving religious accommodation a bad name. Earlier polls suggested that the public was closely divided on the somewhat analogous issue whether individuals such as bakers or photographers could claim a religious right to refuse to provide services to same-sex weddings. But a Washington Post-ABC poll released Sept. 15 found 63 percent of those surveyed said Davis should be required to issue licenses and 45 percent even supported her having been jailed for refusing.
The modern era of religious accommodation began with the Supreme Court’s 1963 decision Sherbert v. Verner invoking the First Amendment’s free-exercise-of-religion clause to allow unemployment benefits to a Seventh Day Adventist fired for refusing to work on Saturdays, the Adventists’ Sabbath. Significantly for the present context, Adell Sherbert was not seeking to be hired back. A year after the decision, however, Congress included in the Civil Rights Act of 1964 a provision giving employees a workplace right to reasonable accommodations of their religious beliefs.
The Supreme Court scrapped the First Amendment test set out in Sherbert in the 1990 decision, Employment Division v. Smith. The ruling effectively blocked use of the Free Exercise Clause to gain religious accommodations from generally applicable laws. Congress responded three years later by restoring the previous test as a matter of statutory instead of constitutional law in the Religious Freedom Restoration Act (RFRA).
RFRA was the basis for the Supreme Court’s controversial Hobby Lobby decision in 2014 allowing private employers to invoke religious beliefs in refusing a requirement to include cost-free contraceptives in employee health plan. In a dissent, Justice Ruth Bader Ginsburg noted that in previous decisions the Supreme Court said religious accommodations would not be allowed if they significantly affected third-parties’ rights.
In the majority opinion, Justice Samuel A. Alito Jr. batted away Ginsburg’s warning that the ruling threatened enforcement of civil rights laws. But as the gay marriage cases advanced, many states moved to pass or strengthen mini-RFRAs for the precise purpose of allowing anti-gay discrimination.
So far, the photographers and bakers are losing in courts or administrative agencies. The judges and clerks are stretching the religious liberty argument even further by claiming the right to turn gay and lesbian couples away at the courthouse door. The discord they have stirred up shows once again the wisdom of trying to keep religion and politics, church and state, apart.
Sunday, September 20, 2015
On Supreme Court, Republicans Out of the Mainstream
Supreme Court appointments have been politically charged decisions ever since John Adams appointed his Federalist ally John Marshall as chief justice just before the Anti-Federalist Thomas Jefferson was to succeed Adams as president. So it was only a matter of time before the issue came up in the 2016 presidential campaign.
Voting experts say Supreme Court issues play little role in swaying undecided voters, but do help political parties play to their respective bases. The base-appealing strategy naturally leads candidates away from the political center, but the GOP hopefuls who discussed Supreme Court appointments in the CNN-hosted debate for “major” candidates last week [Sept. 16] took hard turns to the right in their remarks.
Ironically, the most sensible remarks came from two of the Republican hopefuls in the second-tier debate. South Carolina senator Lindsey Graham and former Pennsylvania senator Rick Santorum both stood up for Chief Justice John G. Roberts Jr. despite cries for his scalp from conservatives for voting twice in 2012 and again in June to uphold President Obama’s health care reform. Graham called Roberts “one of the most qualified men” to come before the Senate, while Santorum said Roberts has “a long, good record” despite some bad decisions.
In the main debate, however, Jeb Bush threw Roberts under the bus even though it was Jeb’s brother George W. who appointed Roberts. Bush said that Roberts “has made some really good decisions,” but he then suggested the appointment was a mistake because Roberts “did not have a proven, extensive record.” Bush wrapped up by declaring, “You can’t do it the politically expedient way anymore.”
Texas senator Ted Cruz pointedly criticized both of the Bush presidents for picking unproven Supreme Court nominees over judges with a demonstrated commitment to right-wing ideology on the bench. In Cruz’s telling, Bush41 chose the newbie federal judge David H. Souter in 1990 over Edith Jones, who had already proven her conservative credentials after five years on the Fifth U.S. Circuit Court of Appeals. Then in 2005 Bush43 passed over another proven conservative judge, Michael Luttig, in favor of Roberts, who had only two years of D.C. Circuit decisions to vet for ideological inconstancy.
Cruz, who supported Roberts’ confirmation while serving as Texas's solicitor general at the time, now labels the appointment “a mistake,” just as Souter’s appointment had been earlier. “You know, we're frustrated as conservatives,” Cruz said. “We keep winning elections, and then we don't get the outcome we want.” Fact-check: Democratic candidates have won the popular vote in five of the last six presidential elections.
In Cruz’s counterhistorical scenario, the Jones and Luttig appointments would have changed the results not only in the Obamacare cases but also in this year’s same-sex marriage ruling. Yes, Roberts dissented in the marriage case, but apparently Cruz assumes that Jones, still on the bench at age 66, would have been the fifth vote for the conservatives in the case: no Souter retirement and thus no appointment of Sonia Sotomayor to succeed him.
Cruz may well be right in imagining how Jones and Luttig would have voted in those cases, but it should be noted that they would have been bucking the consensus position taken by lower court judges in the cases. Out of four federal courts of appeals to rule on the Affordable Care Act, only one held the law unconstitutional. Out of more than 60 federal judges to rule in marriage cases after December 2013, only six voted to uphold same-sex marriage bans, including the two Sixth Circuit judges whose decision the Supreme Court overturned.
On marriage, public opinion is now also clearly in favor of equal rights for same-sex couples; by now, public opinion also favors the Affordable Care Act though narrowly. So Cruz is arguing in favor of appointing justices outside both the legal and political mainstream. President Reagan tried that with Robert Bork in 1987; the Senate emphatically rejected him: 58-42.
Former Arkansas governor Mike Huckabee took the Republicans’ colloquy one step further out of the mainstream last week by listing a series of “litmus tests” that he would impose on possible Supreme Court nominees. Among others, Huckabee said he would require a nominee to pledge support for recognizing a fetus as a person. Fetal personhood proposals have been defeated at the polls and rejected in the courts.
For good measure, Huckabee also questioned the Supreme Court’s role in the constitutional system. “If the court can just make a decision and we just all surrender to it, we have what Jefferson said was judicial tyranny,” Huckabee said.
In the earlier, second-tier debate, Louisiana governor Bobby Jindal had included Anthony Kennedy along with Roberts and Souter as mistakes by GOP presidents. He vowed, if elected, to appoint “conservative judges, judges that are going to be pro-life, judges that are going to follow the Constitution . . . .”
In his Senate confirmation hearing, Roberts studiously avoided ideological labels and used his famous umpire metaphor to depict a judge’s role as neutrality. Umpires get booed from both sides, just as Robert has been. But among Republicans who would be president, the model nominee now appears to be somehow who will hew 100 percent to an ideological line that, not coincidentally, correlates directly with the GOP’s out-of-the-mainstream political views.
Correction: This column originally stated that Cruz voted against Roberts' confirmation; he was elected to the Senate in 2012 and began serving in 2013. H/T: Richard Samp of Washington Legal Foundation, who pointed out the error.
Voting experts say Supreme Court issues play little role in swaying undecided voters, but do help political parties play to their respective bases. The base-appealing strategy naturally leads candidates away from the political center, but the GOP hopefuls who discussed Supreme Court appointments in the CNN-hosted debate for “major” candidates last week [Sept. 16] took hard turns to the right in their remarks.
Ironically, the most sensible remarks came from two of the Republican hopefuls in the second-tier debate. South Carolina senator Lindsey Graham and former Pennsylvania senator Rick Santorum both stood up for Chief Justice John G. Roberts Jr. despite cries for his scalp from conservatives for voting twice in 2012 and again in June to uphold President Obama’s health care reform. Graham called Roberts “one of the most qualified men” to come before the Senate, while Santorum said Roberts has “a long, good record” despite some bad decisions.
In the main debate, however, Jeb Bush threw Roberts under the bus even though it was Jeb’s brother George W. who appointed Roberts. Bush said that Roberts “has made some really good decisions,” but he then suggested the appointment was a mistake because Roberts “did not have a proven, extensive record.” Bush wrapped up by declaring, “You can’t do it the politically expedient way anymore.”
Texas senator Ted Cruz pointedly criticized both of the Bush presidents for picking unproven Supreme Court nominees over judges with a demonstrated commitment to right-wing ideology on the bench. In Cruz’s telling, Bush41 chose the newbie federal judge David H. Souter in 1990 over Edith Jones, who had already proven her conservative credentials after five years on the Fifth U.S. Circuit Court of Appeals. Then in 2005 Bush43 passed over another proven conservative judge, Michael Luttig, in favor of Roberts, who had only two years of D.C. Circuit decisions to vet for ideological inconstancy.
Cruz, who supported Roberts’ confirmation while serving as Texas's solicitor general at the time, now labels the appointment “a mistake,” just as Souter’s appointment had been earlier. “You know, we're frustrated as conservatives,” Cruz said. “We keep winning elections, and then we don't get the outcome we want.” Fact-check: Democratic candidates have won the popular vote in five of the last six presidential elections.
In Cruz’s counterhistorical scenario, the Jones and Luttig appointments would have changed the results not only in the Obamacare cases but also in this year’s same-sex marriage ruling. Yes, Roberts dissented in the marriage case, but apparently Cruz assumes that Jones, still on the bench at age 66, would have been the fifth vote for the conservatives in the case: no Souter retirement and thus no appointment of Sonia Sotomayor to succeed him.
Cruz may well be right in imagining how Jones and Luttig would have voted in those cases, but it should be noted that they would have been bucking the consensus position taken by lower court judges in the cases. Out of four federal courts of appeals to rule on the Affordable Care Act, only one held the law unconstitutional. Out of more than 60 federal judges to rule in marriage cases after December 2013, only six voted to uphold same-sex marriage bans, including the two Sixth Circuit judges whose decision the Supreme Court overturned.
On marriage, public opinion is now also clearly in favor of equal rights for same-sex couples; by now, public opinion also favors the Affordable Care Act though narrowly. So Cruz is arguing in favor of appointing justices outside both the legal and political mainstream. President Reagan tried that with Robert Bork in 1987; the Senate emphatically rejected him: 58-42.
Former Arkansas governor Mike Huckabee took the Republicans’ colloquy one step further out of the mainstream last week by listing a series of “litmus tests” that he would impose on possible Supreme Court nominees. Among others, Huckabee said he would require a nominee to pledge support for recognizing a fetus as a person. Fetal personhood proposals have been defeated at the polls and rejected in the courts.
For good measure, Huckabee also questioned the Supreme Court’s role in the constitutional system. “If the court can just make a decision and we just all surrender to it, we have what Jefferson said was judicial tyranny,” Huckabee said.
In the earlier, second-tier debate, Louisiana governor Bobby Jindal had included Anthony Kennedy along with Roberts and Souter as mistakes by GOP presidents. He vowed, if elected, to appoint “conservative judges, judges that are going to be pro-life, judges that are going to follow the Constitution . . . .”
In his Senate confirmation hearing, Roberts studiously avoided ideological labels and used his famous umpire metaphor to depict a judge’s role as neutrality. Umpires get booed from both sides, just as Robert has been. But among Republicans who would be president, the model nominee now appears to be somehow who will hew 100 percent to an ideological line that, not coincidentally, correlates directly with the GOP’s out-of-the-mainstream political views.
Correction: This column originally stated that Cruz voted against Roberts' confirmation; he was elected to the Senate in 2012 and began serving in 2013. H/T: Richard Samp of Washington Legal Foundation, who pointed out the error.
Sunday, September 13, 2015
Justice Breyer Takes a Wide Worldview
Alone among the eight Supreme Court justices who have been married, Stephen G. Breyer chose a spouse from beyond U.S. borders. Breyer has been wed since 1967 to the former Joanna Hare, the daughter of a British viscount and a psychologist who now practices at the Dana-Farber Cancer Institute in Boston.
Fittingly, Breyer is also the most internationalist-minded of the current nine, including the never-married Elena Kagan. Yes, almost all of them travel abroad from time to time: Anthony Kennedy teaches every year in Salzburg, Austria; John Roberts spent part of the past two summers in distant isles: Malta in 2014, Japan in 2015. But Breyer is the only one who claims fluency in a non-native language: French.
Breyer has displayed his internationalist sensibilities in meetings at home or abroad with foreign judges and legal officials, in his writings, and in his judicial opinions. Now, Breyer has set out his views on the importance of international and foreign law in his new book being published this week, The Court and the World: American Law and the New Global Realities. And Breyer does not back away from explicitly endorsing the controversial use of international and foreign law — he calls it “cross-referencing” — in U.S. judicial decisions.
The subtitle states the thesis. In Breyer’s view, it is not merely desirable but inevitable for U.S. courts, including his, to learn about and take growing cognizance of foreign and international law. The “new global reality” is that the world is a smaller and more interdependent place in the 21st century than ever before.
Breyer notes that U.S. companies and U.S. consumers can use their computers to enter into transnational dealings without ever leaving their offices or homes. And, as he illustrates from the Supreme Court’s docket in recent years, some of those dealings lead to legal disputes with thorny issues about how to apply U.S. law against the backdrop of law from other countries.
Citations to foreign and international law in Supreme Court decisions are by no means new. Justice Byron R. White referenced foreign law in the 1986 decision upholding state anti-sodomy laws; Anthony M. Kennedy cited the European Court of Human Rights in the 2003 decision ruling such laws unconstitutional.
White cited practices in other countries in successive decisions in 1977 and 1982 that ruled out the death penalty for rape or felony murder. But Kennedy’s citation to foreign law in the sodomy decision and in his later opinion to spare juvenile offenders from the death penalty touched a nerve among political and legal conservatives.
On the court, the conservative justice Antonin Scalia sneers at the practice in his opinions and in public speeches. Foreign laws can “never, never be relevant to the meaning of the U.S. Constitution,” Scalia declared in a luncheon speech at George Mason University School of Law on May 29. “Who cares?” Scalia added. “We have our laws; they have theirs.”
Breyer begins with cases that require an understanding of foreign law in order to apply U.S. law. As one example, he cites the 2004 decision, over his lone dissent, that a U.S. company could obtain a court order for discovery of evidence introduced in an antitrust proceeding before the European Commission. The decision in Intel Corp. v. Advanced Micro Devices, Inc. turned on whether the European Commission was akin to a judicial tribunal, as the majority believed, or a prosecuting office, as Breyer argued.
With cases such as that one as background, Breyer eventually acknowledges the proposals introduced in Congress in recent years to prohibit federal courts from citing foreign law in their decisions. Breyer recalls the somewhat analogous effort by Sen. John Bricker in the 1950s to limit the law-making effect of treaties signed and ratified by the United States. The so-called Bricker Amendments were defeated, and the more recent proposals also failed to advance.
Breyer summarizes the critics’ arguments. The critics may fear that U.S. judges will base decisions not on legal analysis but on “nose-counting” among other countries. The critics view use of foreign law as an infringement of U.S. sovereignty and as an affiliation with the “leftish” views of the worldwide judicial caste.
Having acknowledged those arguments, however, Breyer rejects them. Judges worldwide find themselves facing similar problems, Breyer says, and U.S. judges may learn from reading the decisions of foreign judges on similar issues. The practice is not new, he emphasizes, but dates back to such great justices as John Marshall. And, in any event, the court’s work makes it impossible to sustain “the sort of hermetically sealed legal environment” that the critics appear to envision.
Breyer sees a further benefit: the role that U.S. judges as diplomats can play in spreading principles of U.S. law worldwide. He and other justices have met with judges from a long list of countries, here or abroad, to discuss common issues. Behind those meetings lies the hope of spreading such principles as due process, habeas corpus, and the independence of the judiciary.
“The enterprise is not without setbacks,” Breyer writes in conclusion. “But the effort is worthwhile.” The rule of law, he says, is an essential tool to meet the global challenges of the 21st century. U.S. judges and citizens alike, he says, should work at meeting those challenges together.
Fittingly, Breyer is also the most internationalist-minded of the current nine, including the never-married Elena Kagan. Yes, almost all of them travel abroad from time to time: Anthony Kennedy teaches every year in Salzburg, Austria; John Roberts spent part of the past two summers in distant isles: Malta in 2014, Japan in 2015. But Breyer is the only one who claims fluency in a non-native language: French.
Breyer has displayed his internationalist sensibilities in meetings at home or abroad with foreign judges and legal officials, in his writings, and in his judicial opinions. Now, Breyer has set out his views on the importance of international and foreign law in his new book being published this week, The Court and the World: American Law and the New Global Realities. And Breyer does not back away from explicitly endorsing the controversial use of international and foreign law — he calls it “cross-referencing” — in U.S. judicial decisions.
The subtitle states the thesis. In Breyer’s view, it is not merely desirable but inevitable for U.S. courts, including his, to learn about and take growing cognizance of foreign and international law. The “new global reality” is that the world is a smaller and more interdependent place in the 21st century than ever before.
Breyer notes that U.S. companies and U.S. consumers can use their computers to enter into transnational dealings without ever leaving their offices or homes. And, as he illustrates from the Supreme Court’s docket in recent years, some of those dealings lead to legal disputes with thorny issues about how to apply U.S. law against the backdrop of law from other countries.
Citations to foreign and international law in Supreme Court decisions are by no means new. Justice Byron R. White referenced foreign law in the 1986 decision upholding state anti-sodomy laws; Anthony M. Kennedy cited the European Court of Human Rights in the 2003 decision ruling such laws unconstitutional.
White cited practices in other countries in successive decisions in 1977 and 1982 that ruled out the death penalty for rape or felony murder. But Kennedy’s citation to foreign law in the sodomy decision and in his later opinion to spare juvenile offenders from the death penalty touched a nerve among political and legal conservatives.
On the court, the conservative justice Antonin Scalia sneers at the practice in his opinions and in public speeches. Foreign laws can “never, never be relevant to the meaning of the U.S. Constitution,” Scalia declared in a luncheon speech at George Mason University School of Law on May 29. “Who cares?” Scalia added. “We have our laws; they have theirs.”
Breyer begins with cases that require an understanding of foreign law in order to apply U.S. law. As one example, he cites the 2004 decision, over his lone dissent, that a U.S. company could obtain a court order for discovery of evidence introduced in an antitrust proceeding before the European Commission. The decision in Intel Corp. v. Advanced Micro Devices, Inc. turned on whether the European Commission was akin to a judicial tribunal, as the majority believed, or a prosecuting office, as Breyer argued.
With cases such as that one as background, Breyer eventually acknowledges the proposals introduced in Congress in recent years to prohibit federal courts from citing foreign law in their decisions. Breyer recalls the somewhat analogous effort by Sen. John Bricker in the 1950s to limit the law-making effect of treaties signed and ratified by the United States. The so-called Bricker Amendments were defeated, and the more recent proposals also failed to advance.
Breyer summarizes the critics’ arguments. The critics may fear that U.S. judges will base decisions not on legal analysis but on “nose-counting” among other countries. The critics view use of foreign law as an infringement of U.S. sovereignty and as an affiliation with the “leftish” views of the worldwide judicial caste.
Having acknowledged those arguments, however, Breyer rejects them. Judges worldwide find themselves facing similar problems, Breyer says, and U.S. judges may learn from reading the decisions of foreign judges on similar issues. The practice is not new, he emphasizes, but dates back to such great justices as John Marshall. And, in any event, the court’s work makes it impossible to sustain “the sort of hermetically sealed legal environment” that the critics appear to envision.
Breyer sees a further benefit: the role that U.S. judges as diplomats can play in spreading principles of U.S. law worldwide. He and other justices have met with judges from a long list of countries, here or abroad, to discuss common issues. Behind those meetings lies the hope of spreading such principles as due process, habeas corpus, and the independence of the judiciary.
“The enterprise is not without setbacks,” Breyer writes in conclusion. “But the effort is worthwhile.” The rule of law, he says, is an essential tool to meet the global challenges of the 21st century. U.S. judges and citizens alike, he says, should work at meeting those challenges together.
Monday, September 7, 2015
First Amendment Law Takes a Hit
Supreme Court justices often emphasize that the court’s role is not simply to decide cases and correct errors in lower courts, but to rule on knotty legal issues and lay down rules that get the law right for future cases. But in two closely argued free-speech cases during the past term the court seems to some observers to have gotten the law quite wrong even while reaching what may well be the right results in both.
In the first of the cases, Walker
v. Sons of Confederate Veterans, the court decided that Texas’s
Department of Motor Vehicles could refuse to allow the Sons of the Confederate
Veterans from displaying the Confederate battle flag on customized license
plates. The Fifth U.S. Circuit Court of Appeals had ruled the agency’s action a
free-speech violation.
In the second case, Reed
v. Town of Gilbert, the court struck down an ordinance adopted by a
Phoenix suburb that allowed ideological and political signs to be larger and to
stay up longer than other kinds of signs. The Ninth U.S. Circuit Court of
Appeals found no First Amendment violation.
The justices divided 5-4 in
the Confederate battle flag case, with Justice Stephen G. Breyer writing for a
majority that included the three other liberals and, somewhat surprisingly, the
conservative Justice Clarence Thomas. The vote to strike down the Gilbert sign
ordinance was unanimous, but three liberal justices declined to join Thomas’s
opinion for the court.
By my lights, the court
would get good grades in both cases if its only job were to correct errors from
lower courts. The Fifth Circuit gave too little regard to Texas’s interest in preventing the use of
government-issued license plates to display a symbol regarded by many in the
state as racially offensive. On the other hand, the Ninth Circuit was too
deferential toward Gilbert’s interest in limiting visual clutter on its
roadways.
In both cases, however, the
court laid down inflexible rules that may come back to haunt in future
free-speech disputes. In Walker, Breyer reasoned that
automobile license plates are in essence government speech free of any First
Amendment controls. By contrast, Thomas’s opinion in Reed imposes
the highest constitutional test, “strict scrutiny,” on any law regulating speech
based on its content.
In separate opinions,
justices in the minority sounded alarms. In the license plate case, Justice
Samuel A. Alito Jr. wrote on behalf of the four conservative dissenters that
the decision “establishes a
precedent that threatens private speech that government finds displeasing.” In
the sign case, Justice Elena Kagan warned on behalf of three justices
concurring in the judgment that the decision could result in invalidating
“thousands” of “reasonable ordinances.”
In fact, Reed has already spread beyond
the specific context of sign ordinances, as the New York Times’s
Supreme Court correspondent Adam Liptak noted in an article last month [Aug.
18]. The Seventh U.S. Circuit Court of Appeals cited the newly established strict
scrutinystandard for any content-based regulation in striking down a local
ordinance against panhandling (Norton v. City of Springfield, Aug. 7).
Before Reed, the court had upheld the
ordinance because it regulated speech
based on the subject matter, not the content or viewpoint. But ruling on a
petition for rehearing, Judge Frank Easterbrook Jr. said the Supreme Court’s
broader definition of “content-based” required a different result. “Any law
distinguishing one kind of speech from another by reference to its meaning now
requires a compelling justification,” Easterbrook wrote.
In another post-Reed decision, the Fourth
U.S. Circuit Court of Appeals struck down a South Carolina law that barred
robocalls on political but not on other topics. And a federal district court
judge cited Reed in striking down a New Hampshie law that
sought to protect ballot secrecy by banning election selfies.
As Liptak noted, Reed could conceivably be extended to
such content-based laws as drug labeling, securities regulation, and consumer
protection. Liptak quoted Robert Post, a First Amendment expert and dean of Yale Law
School, as warning that
the decision “would roll consumer protection back to the 19th century.”
A federal court in Virginia
cited Walker in a ruling in late July to allow the state to
recall specialty license plates carrying the Confederate battle flag. But the
decision had spread to a somewhat different context even earlier. In an action
at the end of the term in late June, the justices told the Fourth Circuit to
reconsider a decision that North
Carolina was violating the First Amendment by
allowing specialty license plates for anti-abortion organizations but not
pro-choice groups.
In his story reporting the
action, Slate’s Mark Joseph Stern recalled his earlier
warning that Walker “was not a victory for civility or
tolerance” but “an invitation for the suppression of expression.”
Ironically, Breyer’s opinion establishing a bright-line test for
license plates or other government speech is at odds with the distaste he
voiced for categorical definitions in his separate opinion in the sign
ordinance case. Breyer has been a flexible First Amendment pragmatist
throughout his tenure. And, in his forthcoming book The Court and the
World, Breyer writes favorably of European court rulings that apply a
“proportionality” test in evaluating free-speech challenges.
Bright-line tests have their place, but the court’s decisions
in these cases give courts too much power to strike down valid speech
regulations and give politically motivated governments too much power to censor
pure speech. First Amendment law took a hit in both.
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