Sunday, November 10, 2019

The Week Ahead

by Anna Salvatore

The Supreme Court will hear three particularly important cases this week.

On Tuesday it will examine President Trump’s decision to terminate DACA, an Obama-era program that has allowed 800,000 undocumented young adults to remain and work in the United States. The University of California argues that Trump’s decision violated the Administrative Procedure Act because it was “arbitrary and capricious,” while the government argues that it has absolute discretion to enforce (or not enforce) its immigration laws.

Also on Tuesday, the Justices hear a complicated case called Hernandez v. Mesa. Amy Howe explains its facts on SCOTUSblog: “In June 2010, 15-year-old Sergio Hernandez was playing on the Mexican side of the U.S.-Mexico border when a U.S. Border Patrol agent, Jesus Mesa, fired shots across the border, hitting Hernandez in the face and killing him. Next week Hernandez’s family will be at the Supreme Court for the second time, seeking to hold Mesa responsible for their son’s death.” Here the justices are trying to determine whether non-citizens have constitutional rights on foreign soil.

The third case, Comcast v. National Association of African American-Owned Media, is about how to apply the Civil Rights Act to contracts. The dispute began when an African American media group accused Comcast of racial discrimination for refusing to broadcast its T.V. channels. According to the African-American owners, they only needed to show that racial discrimination was a “motivating factor” in Comcast’s decision in order to win their lawsuit. According to Comcast, though, the African-American owners had to definitively prove that Comcast’s decision would have been different if not for their race. The Supreme Court will decide which standard is correct for race discrimination suits. Twenty billions dollars is on the line.

Other news and links:

  • There’s a new book out about Justice Sotomayor called Being Brown: Sonia Sotomayor and the Latino Question.
    • Overview from Barnes and Noble: Being Brown “tells the story of the country’s first Latina Supreme Court Associate Justice’s rise to the pinnacle of American public life at a moment of profound demographic and political transformation. While Sotomayor’s confirmation appeared to signal the greater acceptance and inclusion of Latinos—the nation’s largest “minority majority”—the uncritical embrace of her status as a “possibility model” and icon paradoxically erased the fact that her success was due to civil rights policies and safeguards that no longer existed.”
  • The Second Circuit recently ruled that President Trump’s accounting firm has has to release eight years of his tax returns to a grand jury. His lawyer, Jay Sekulow, says that they will appeal the case to the Supreme Court by November 14. (Axios)
  • A couple of weeks ago, a picture appeared on social media of Justices Alito and Kavanaugh meeting with the head of an anti-LGBT group called the National Organization for Marriage. Masha Gessen writes for The New Yorker about why this meeting was problematic. Take Back the Court, a liberal activist group, is calling on Alito and Kavanaugh to recuse from the three LGBT cases pending before the Court. You can read the full letter here. 

Saturday, November 9, 2019

Kansas v. Glover Oral Argument Analysis

by Anna Salvatore

The justices heard five cases this week: one about the consequences for non-citizens who break the law, another about Americans whose intellectual property is infringed by states, and still another about streams of sewage trickling from a Maui plant to the Pacific Ocean, with the question being whether the Clean Water Act requires a permit for pollutants that are transported by groundwater. 

Today I’m focusing on Kansas v. Glover, a case argued on Monday about whether police officers can stop a car because its registered owner is unlicensed. 

The dispute began in April 2016, when a Kansas police officer ran a registration check on a Chevrolet pickup. The officer discovered that the man who owned the truck, Charles Glover Jr., had had his license revoked. The officer assumed that the man currently driving the pickup was Mr. Glover, so he stopped the vehicle, learned he was was correct, and charged Mr. Glover with repeatedly violating Kansas’s traffic laws. The question here is when, exactly, it’s reasonable for police officers to assume that the vehicle’s unlicensed owner is the one driving. After all, millions of cars in America are registered to more than one person. If Glover’s Chevrolet pickup was also registered to his daughter, then Kansas officers might have stopped his licensed daughter instead.

According to the state of Kansas, officers can assume that a car’s unlicensed owner is driving if there’s no evidence to the contrary. Let’s say that the officer can’t identify any details about the Chevrolet’s driver. The windows are tinted, the sky is dark, and he can’t see whether the driver is a man, woman, or a Beverly Hills chihuahua. Despite his visual ignorance, if the officer knows the owner of the car is unlicensed, then he can assume the owner is the one driving.

Glover argues that officers need more evidence than that to assume the unlicensed owner is driving. The evidence doesn’t have to be rock-solid — perhaps the officer sees a middle-aged man in the driver’s seat and feels vindicated that it’s Glover — but there should generally be more evidence than “the owner of this car is unlicensed” to justify a stop.

The more liberal justices seemed to agree with Glover during Monday’s oral argument, for they thought extra evidence was often needed for officers to have reasonable suspicion. The conservative justices were harder to read.

Justice Kagan pointed to her 2013 opinion in Florida v. Harris, which said that courts must look to the totality of the circumstances when evaluating whether an officer has probable cause for a traffic stop. In other words, courts can look at the experience of the police officer, the performance history of his bomb-sniffing dog, the weather, the behavior of the driver, and any other relevant information in the context of the stop. Why should we “throw out the totality of the circumstances analysis,” asked Justice Kagan, and say that Mr. Glover’s lack of a license entirely justifies his traffic stop? 

The Assistant to the Solicitor General, Michael R. Huston, sort of responded to Kagan’s question, claiming that officers must have suspicion based on common sense in order to stop people. But the justices were curious about how statistics enter into common sense: Justice Kavanaugh wondered whether the fact that 50% of teenagers text while driving is enough for an officer to stop a teenager driver. Huston said no, but didn’t have much time to elaborate.

A few of the justices were concerned by the officer in this case, Deputy Mehrer, saying that he “assumed” Mr. Glover was driving the car. The officer didn’t cite evidence for his assumption, said Justice Gorsuch, so how can courts possibly decide whether he was correct?

Representing Mr. Glover, former DOJ lawyer Sarah Harrington responded that officers must have evidence for their reasonable suspicion beyond knowing the car’s owner is unlicensed. Consider suppression hearings, where judges decides whether evidence from traffic stops can be used at trial. Even if the officer testifies vaguely at the hearing that, “In my experience, the unlicensed owner is often driving,” the stopped driver can cross-examine him. The driver can ask if geography affected the officer’s decision — if, for example, rural Kansas is known for unlicensed owners flaunting the law; if drivers in the area tend to have their licenses revoked for bad behavior or merely for missing their fee payments; if the driver here behaved suspiciously near the police officer; and so on. In this way the driver can uncover the totality of the circumstances, and the judge can decide whether the stop was reasonable.

Justice Gorsuch worried that adopting Harrington’s rule would lead to hollow formalism: If officers only have to say “In my experience” instead of “I assumed,” said Gorsuch, then can’t officers defend any unreasonable stop? Harrington responded that the cross-examination at the hearing would reveal whether the stop was serious.

The interesting question is whether officers should be required to take the stand at these hearings. Fourth Amendment scholar Orin Kerr shared his thoughts on the Volokh Conspiracy blog:

For what it’s worth, my own intuitions tend to make the general question something for judges but the experience with special cases something up to witnesses.  If that’s right, I would think that the officer’s testimony shouldn’t be required in a case like Glover, but that there will be Glover cases where it would be relevant.

Here’s my thinking.  If we want to get a ballpark sense of whether an intuition is justified, the ballpark sense is probably something best generalized by courts.  I would think it would be a relatively uncommon case in which the officer’s training and experience can shed substantial light on the generalized answer.  Relying on the officer’s training seems particularly unhelpful because it’s presumably circular.

I would think that an officer’s testimony about his experience will be pretty limited in most cases.  As the Chief Justice noted, some officers will be new.  Others will have no strong recollections of the correlation between a positive database hit and the owner driving.  And none will be well-equipped to offer a statistical analysis of the inference anyway, such as whether the factors that went into their past experience were relevant to this case.

With that said, I would also think that the officer’s experience is certainly relevant in some Glover cases.  Officer experience can be important when an officer has a lot of experience with a recurring fact pattern. For example, an officer who does undercover buys often may know how drug deals work, and that may give the officer knowledge of what lessons to draw from something he sees during a drug buy that someone without that experience would lack. The idea is that the officer can tell us about a world we don’t know, serving as a sort of expert to guide us.

I think the Supreme Court will rule in Kansas v. Glover that courts must look at the “totality of circumstances” when evaluating stops based on reasonable suspicion. This approach would follow Florida v. Harris.

In some areas of the country, where it is common for unlicensed car owners to drive, then the very fact of an unlicensed owner will be sufficient to justify a stop. In some areas it won’t. I don’t expect the Court to create a bright-line rule that will sharply limit when officers can stop drivers, but to stick with the broad totality analysis and to perhaps break new ground by requiring officers to testify in suppression hearings.

Tuesday, October 15, 2019

The justices will hear arguments this morning in Financial Oversight Board for Puerto Rico v. Aurelius Investment, LLC, a fascinating case about whether members of a government board overseeing Puerto Rico’s debt are considered “Officers of the United States.” If they are, then they have to be nominated by the President and confirmed by the Senate.

The Court also looked ahead to next month’s DACA case, where it will determine whether President Trump’s choice to terminate DACA was “arbitrary, capricious, or otherwise not in accordance with law under the Administrative Procedure Act.” It allowed California’s solicitor general, Michael J. Mongan, to split argument time with the former acting Solicitor General Ted Olson on the pro-Dreamer side.

Here are the links to some of last week’s oral argument transcripts and audios:

Thursday, October 10, 2019

Joey Schafer —  a high school junior from Elkhorn, Nebraska — is the newest contributor to High School SCOTUS. He is a journalist for his school newspaper, a policy and congressional debater, and an avid reader. He also serves as a defense attorney for teen defendants with misdemeanor offenses. Below is his first article. 

To Pope A Butterfly: On the Legitimacy of the Court and the Metamorphosis of Chief Justice Roberts 

The Supreme Court has consistently moved to the right during the Trump Administration, as though it is performing the second chassé of the Cha-Cha Slide. When Justice Kavanaugh replaced the more moderate Justice Kennedy, the make-up of the Court aligned much more with the Federalist Society than the Warren Court. But the most interesting deterritorialization to occur on the new Roberts Court is Roberts himself. His line of flight is striking, and it deserves further analysis. 

In the beginning of his career, Roberts wrote legal memos defending the Reagan Administration’s policies on abortion, and under President George H.W. Bush’s Administration he signed a brief urging the Supreme Court to overturn Roe v. Wade. Yet in June Medical Services v. Gee (2019), Roberts reversed his previous convictions on the issue, or at least seemed to set aside his desire to overturn Roe by staying the decision of the 5th Circuit. This case has remarkable similarities to Whole Woman’s Health v. Hellerstedt (2016), where a nearly identical admitting privileges law, this time in Texas, was deemed an undue burden for women seeking an abortion and was struck down by a five-justice majority. In Hellerstedt, however, Roberts voted against the stay, which was an almost total reversal on the same question after three years. What sparked this change? I think that the Roberts who worked in the Reagan and H.W. Bush Administrations as a conservative attack dog has deterritorialized, a line of flight caused by the cognitive dissonance between a liberal public and a conservative judiciary. 

Whether it be in backlash to the Tea Party Movement ten years ago or backlash to the Trump Administration today, the American left has been increasingly successful in promoting liberalism, not only in institutions and policy discourses but also in everyday social discourse. Being a conservative originalist is no longer a sophisticated hot take, and even can be seen as complacent in maintaining the old order. In opposition to this old guard, we have seen the near deification of young, liberal politicians who represent more diverse communities, shown especially in the Twitterverse’s love for Alexandria Ocasio-Cortez of New York, Ilhan Omar of Minnesota, Ayanna Pressley of Massachusetts and Rashida Tlaib of Michigan, dubbed the “Squad” by adoring millennials across the nation. Young, smart, and liberal “rockstar” politicians have become effective messengers for the Resistance and have suggested what was once unthinkable policy, such as when Pete Buttigieg of Indiana suggested packing the Supreme Court. Whether you believe this is sound policy or not, it is undeniable that this trend poses a serious threat to the legitimacy of the Roberts Court as a historically conservative institution, conservative in both its political persuasions and in its composure on hot-button issues. 

Other institutions of government have legitimacy either by the sword or the purse. The Supreme Court has neither. It gets its support from the tacit approval of a public invested in its moral and jurisprudential sanction. And yet the Supreme Court basically takes part in the coronation of Charlemagne as each new president takes office, not only by participating in the president’s inauguration ceremony, but by reifying the president’s policies throughout his tenure. This is a self strengthening cycle of power sharing veiled under the guise of sanctity. The Supreme Court depends entirely on its adherents to maintain the appearance of its authority, while still being removed from democratic accountability either by constitutional design or with our blessing. This divorce from reality has allowed the Court to dominate our judiciary. It is the role of the Pope or the Chief Justice to maintain the Court’s authority, feebly attempting to keep the flames of our collective affections alight, to further its own virtuousness and thus its authority. Thanks to increasing American liberalism, and increased scrutiny, Pope John Roberts must secure the faith and make key concessions to the increasingly radical and engaged heathens. 

The Supreme Court seldom wades into the “culture wars,” but when it does, it often shapes Americans’ opinions. The nationwide legalization of same-sex marriage seemed to lay on a faraway horizon, that is until Obergefell v. Hodges came down and softened Americans’ hearts about gay rights. Eight states allowed the execution of minors until Roper v. Simmons reminded Americans how barbaric (and hence unconstitutional) the practice was. The Court shapes the mainstream policy debate, with its every pen stroke pulling the needle from the left to the right. But now the congregation of the Roberts Court is dwindling. After recent decisions such as Citizens United and Trump v. Hawaii, Americans read the justices’ decisions with heightened scrutiny and do not necessarily believe in the moral and legal sanction of the Court. Some go further, saying that morality and legality seldom intersect, making the Roberts Court an inherently flawed institution. There is a crisis of faith that only Pope Roberts can assuage, and this line of flight reaches its natural conclusion: reterritorialization.

John Roberts has altered his ideological compass in the Obamacare and census cases alike, putting the needs of the office of Chief Justice above his own opinions to minimize the liberal backlash. The conservative, Reagan-era activist Roberts deterritorialized, and the Chief Justice Roberts reterritorialized because the membership of the Court is in direct conflict with popular opinion. It is legitimizing, then, for Roberts to pretend that the Court isn’t made of four predictable liberals and five predictable conservatives — to pretend that major decisions are based on the plain text of the law rather than on the justices’ prior ideological commitments. In this metamorphosis, Roberts echoes Justice Frankfurter’s dissent in Baker v. Carr, in which Frankfurter argues that, “The Court’s authority—possessed of neither the purse nor the sword—ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court’s complete detachment, in fact and appearance, from the political entanglements and by abstention from injecting itself into the clash of political forces in political settlements.” While Frankfurter was arguing against the Court’s involvement in redistricting, I see this as a roadmap for chief justices who want to manage the perceived legitimacy of their Courts. For without faith, the facade of the Supreme Court’s authority slowly erodes into nothingness.

Sunday, October 6, 2019

Kahler v. Kansas Preview 

by Jason Frey

Only eight months after the Eighth Amendment was fully incorporated in the United States, the Supreme Court is once again hearing a “cruel and unusual” question, this time concerning legal insanity. On October 7th, the justices will consider in Kahler v. Kansas whether the insanity defense can be effectively abolished by the states. There are two types of insanity defenses: 1) where the defendant is blameless if they didn’t satisfy the mens rea element of a crime, meaning they acted unintentionally or didn’t know they were violating the law, and 2) where the defendant is blameless if they didn’t understand the difference between right and wrong during their crime. The second type traces back to the 18th century M’Naghten Rule from British common law. Only four states—Kansas, Montana, Idaho, and Utah—have eradicated this type. 

“Insanity” is a legal term that means the defendant, at the time of the crime, was incapacitated by “mental illness of such a severe nature that a person cannot distinguish fantasy from reality, cannot manage his/her own affairs, or is subject to uncontrollable impulsive behavior” (USLegal). Take care to remember that insanity is not a medical term here, but one that informs legal proceedings. And note that to be considered “insane” in criminal proceedings, the defendant must have been incapacitated at the time of the crime—not before or after. 

Kansas used to recognize the M’Naghten Rule, which held that insanity can be determined either by lack of mens rea or by lack of understanding right vs. wrong. However, in 1996 Kansas substituted the insanity defense with a new law, one that only allowed mental illness to be considered when the jury determines the defendant’s intent (Kan. Stat. Ann. §22-3220 [2009], recodified as §21-5209). The insanity defense was no longer its own entity. This transition poses a significant issue because it means that Kansas, along with three other states, is denying a fundamental right of defense to already stigmatized defendants.

James Kahler, the petitioner in this case, had a troubled history with his family and surrounding community. Diagnosed with mixed obsessive-compulsive, narcissistic, and histrionic personality disorders, Kahler was obsessed with attention from others and being viewed as having an outwardly perfect life. In 2008, after the Kahler family moved from Texas to Missouri, Karen Kahler began having an affair with a woman. James was unable to handle being on the fringes of his wife’s romantic universe, and his behavior became more extreme until he lost his job and monitored his wife obsessively. On Thanksgiving, Kahler drove his son to stay with his wife and “snapped,” killing Karen, his daughters, and his grandmother-in-law. A recording of the incident captured Kahler saying “I am going to kill her” in a disbelieving tone, which the defense claimed was a dissociative break from reality. During trial, psychiatrists concluded with varying degrees of confidence that the defendant was unable to “refrain from doing what he did” due to his severe depression. 

After being convicted of the capital murder of his family members, Kahler petitioned the Supreme Court to hear his case. He claims that Kansas violated his 14th and Eighth Amendment rights. First, Kahler argues that the insanity defense is deeply ingrained in our culture and common law. He must show “clear and convincing evidence” of this history to successfully argue that the insanity defense is a Due Process Clause right (Cruzan v. Missouri, 1990). Next, he disagrees with Kansas that abolishing the insanity defense “does not expressly or effectively make mental disease a criminal offense” because he believes the right to an insanity defense is different from the mens rea element of a crime. Finally, he claims that denying a defendant’s right to plead insanity may lead to his incarceration, which, for a mentally ill convict, does not serve the primary purposes of incarceration: “retribution, deterrence, incapacitation, or rehabilitation” (Kahler 22). Obliterating the insanity defense is thus cruel and unusual punishment under the Eighth Amendment. 

Kansas’s main response is that it didn’t abolish the insanity defense, but merely channeled it into a different category. Its relies on Clark v. Arizona, where the Supreme Court said that Arizona could decline to hear evidence about insanity when determining a defendant’s intent, but could allow evidence for a separate insanity defense. Kansas is extending this ruling to say that it should be allowed to remove an “understanding good vs. evil” defense. Its secondary claim is that there isn’t enough historical evidence for Kahler to make a clear and convincing claim that the insanity defense is crucial to the due process of law. 

The Court decided to hear the case, and as is custom, Kahler submitted a brief explaining his position. He makes it clear that “the Constitution requires states to provide some mechanism to excuse criminal defendants whose mental states render them blameless.” His point is reinforced by the common law, deeply held societal values, and historical practices that underpin the Constitution and have long included the insanity defense. As for the purposes of incarceration—i.e. retribution, deterrence, incapacitation, and rehabilitation—convicting the insane doesn’t serve any of them; retribution fails if the defendant doesn’t understand the wrong, deterrence isn’t effective for the mentally ill if they have no control of their actions, incapacitation may only work for the duration of their sentence, and rehabilitation is futile thanks to the meager mental health resources in modern prisons.

To understand the full scope of Kahler’s brief, it’s necessary to examine the historical context. Kahler references both the Old Testament and texts on the history of the insanity defense to show that ancient Jewish traditions and Greek philosophy distinguished between those who possessed “knowledge of good and evil” and those who didn’t. Ancient Christian and Islam teachings also held that “lunatics” would not be considered responsible for not understanding the consequences of their actions. The paper “Insanity Under Various Criminal Law Jurisdictions of the Globe: A Comprehensive Critical Study of the Relevancy of the Law,” written by Vaibhav Choudry and A. Velan, provides an exhaustive list of historical insanity practices that support Kahler’s conclusion. Between the 13th and 18th centuries in England, the Wild Beast Test acquitted anyone by reason of insanity who “is totally deprived of his understanding … and doth not know what he is doing.” This practice was extended to the Good and Evil Test in the 19th century, followed by the Insane Delusion Test, both of which acquitted an insane defendant for not knowing the difference between “good and evil” or for acting under a delusion. Next, the Test of Capacity to Distinguish Between Right and Wrong was included under the M’Naghten Test, which is still used today. The paper gives an example that “black rage will satisfy the right-wrong prong of M’Naghten if the actor acts in an altered state of consciousness”; it essentially means that under M’Naghten Test, Kahler would have been blameless. Clearly, all recognized legal insanity tests include understanding the morality of one’s actions.

Kansas’s brief takes this argument in the opposite direction. The state claims that the insanity defense has historically had a mens rea approach, although my previous paragraph contradicts that argument. In referencing a 1603 British common law case, Kansas inaccurately conclude that it refers to mens rea, when there is no explicit mention of knowledge of the act, only of the “mind [being] guilty.” Kansas even claims that the M’Naghten Test, which is a form of the “right and wrong” rule, is not deeply entrenched in history and stems from a scienter approach. They also try to undermine Kahler’s Eighth Amendment argument, reasoning that he has no right to introduce it in the Supreme Court if he didn’t use it in the Kansas Supreme Court. Additionally, one of Kansas’ fundamental arguments is that since Kahler would not have been able to prove his insanity in trial, it is harmless to remove the insanity defense as a separate channel. I most strongly disagree with this part of the brief because it repudiates the Supreme Court’s doctrine of fungibility—the idea that the actual facts of the case don’t matter, only the legal principle involved. As such, it shouldn’t matter that Kahler may not have been legally insane, only that the law would have prevented him from making that claim.

Kansas makes two more assertions. First, that the Supreme Court does not have the power to micromanage what defenses a state accepts, and second, that Kahler’s Eighth Amendment argument is invalid. The state cites Powell v. Texas, which held that since alcoholism does not cause uncontrollable impulses, incarceration for public intoxication is not cruel and unusual. This 1968 opinion also states that “the doctrines of actus reus, mens rea, insanity, mistake, justification, and duress have historically provided the tools for a constantly shifting adjustment … This process of adjustment has always been thought to be the province of the States.” Here Kansas’ claim is supported that the federal government gives states leeway on choosing their defense schemes, as well as that the Eighth Amendment doesn’t prohibit incarceration if the defendant had knowledge of his crime. Clark reinforces this concept because the opinion allows states to “determine whether, and to what extent, mental illness should excuse criminal behavior.” And it’s true that states have the reserved power of conducting their internal legal affairs; but at what point must the Supreme Court step in? Should the court of last resort have no say over such a fundamental defense? Would this argument be the same if self-defense had been effectively abolished? As for Kansas’s attempt to invalidate the Eighth Amendment claim, Robinson v. California actually prohibited incarceration due to narcotic addiction because it was likened to “making it a criminal offense ‘to be mentally ill, or a leper, or to be afflicted with a venereal disease,’” which is an extraordinarily similar case to Kahler.

Finally, a not insignificant part of Kansas’ brief addresses the fact that incarceration of mentally ill defendants may deter others from committing crimes. The brief contends that if the insanity defense were to be ruled a fundamental right, it could provoke others to commit crimes and abuse the defense, believing that they would be acquitted. This claim belies the public misconception around the use and frequency of the insanity defense. The majority of Americans mistakenly believe that this defense is often misused and susceptible to exploitation. However, it is strictly controlled.  “The Volume and Characteristics of Insanity Defense Pleas: An Eight-State Study” examines the frequency and success of the insanity defense. Based on 49 representative counties over eight states, the study concluded that out of 967,209 felony indictments, 0.93% of them involved an insanity plea. Of that 0.93%, only 26.27% of the pleas were successful. That means that out of all felony cases, approx. 0.25% of them end in an NGRI Acquittal. It is thus completely unreasonable to assume that the insanity defense is subject to exploitation, and much less reasonable to consider that it would be a deterrent for potentially mentally ill defendants.

Without even hearing the oral arguments yet, I believe that the court should rule for Kahler. Why should someone be held criminally responsible for actions they weren’t morally guilty of committing? If one cannot control their actions, what is the point of punishment? In addition, why should the defendant be sentenced to incarceration in a system that is notorious for aggravating serious mental illness and has a history of solitary confinement? I have to agree with the petitioner that none of the goals of incarceration in America are served by such a conviction. There is a reason that Kahler was brought to the Supreme Court, and it wasn’t so that the justices would squander the opportunity to legally support the M’Naghten Rule in the name of forever ambiguous “states’ rights.” The amicus brief from the American Psychiatric Association et al. says it best that “from the founding of the United States until today, virtually all American jurisdictions have recognized that, when serious mental illness prevents a defendant from grasping that his conduct was wrong, the defendant should not be held criminally responsible.”

Friday, October 4, 2019

by Anna Salvatore

The Supreme Court agreed this morning to hear June Medical Services v. Gee, a case that has huge stakes for Louisiana women’s access to abortions.

Louisiana requires abortion providers to have admitting privileges at a nearby hospital, meaning that the providers must be able to admit patients to a local hospital, diagnose them, and treat them if necessary. The justices struck down an almost identical law three years ago in Whole Women’s Health v. Hellerstedt that would have forced half of Texas’s abortion clinics to close. They said that the law unduly burdened a woman’s constitutional right to an abortion, adding that courts can look beyond the legislative record to determine if laws further a state interest.

Why would the justices agree to hear a case from Louisiana when they settled this legal issue three years ago? The answer, many Court-watchers think, is that an “assault on Roe” is beginning.

With Justice Kennedy gone, pro-life advocates may have a friend in Justice Kavanaugh. In 2017 he voted in a D.C. Circuit case about whether an undocumented teenager could have an abortion, blocking her access to the procedure until she could find a sponsor to remove her from custody. She had not been able to find a sponsor for the previous six weeks, and Kavanaugh’s colleague, Judge Millett, called his order a “sacrifice of [the girl]’s constitutional liberty, autonomy, and personal dignity for no justifiable government reason” (Garza v. Hargan). It’s true that Kavanaugh has not had many opportunities to write on abortion, so his opinions may not be calcified. It’s also true that if we work with what we have — his opinion in Garza —  examine his background of working in the George W. Bush White House, and remember that Roe is widely loathed by conservatives in his circles, then he may be skeptical of the constitutional right to an abortion.

There is another reason that Hellerstedt may be overturned, namely that the Supreme Court has been increasingly willing over the past two terms to overturn long-standing precedent. Consider Janus v. ACFSME (2018), where the more conservative justices overturned a 1977 case about the fair-share fees that employees pay to unions. Employers across the country had relied on this precedent for generations; it was a bedrock of labor relations. When overturning cases of this magnitude, the Court often identifies a “compelling justification” for doing so, citing recent developments that have undermined the law or evidence suggesting that the law is being applied unfairly. Not so in Janus. The justices overturned the labor case because they disagreed with its reasoning. They have since overturned major precedents in Knick v. Township of Scott (a Takings Clause case) and Franchise Tax Board v. Hyatt (a sovereign immunity case), with their main reason being that the underlying, decades-old opinions were incorrect. “Today’s decision can only cause one to wonder which cases the Court will overrule next,” wrote Justice Breyer in his Hyatt dissent.

Breyer has not always opted for stability, but he is right to worry about it. Stability is an important element of the law because it ensures that we know our rights, our responsibilities, and practices we have to avoid. When our courts veer right or left in a short period of time, that undermines both stability in the law and our faith in a nonpartisan judiciary.

Saturday, September 14, 2019

by Anna Salvatore

The Civil Rights Act of 1964 holds that employers cannot discriminate against their employees on the basis of sex. In a few weeks, the Supreme Court will consider whether treating gay and lesbian employees unfairly also counts as sex discrimination. 

Gerald Bostock is a former public service employee from Clayton County, Georgia. In early 2013, Bostock’s employers learned that he played in an LGBT softball league called Hotlanta. Shortly afterwards they began investigating his job performance, claiming that he had misused funds that should have gone towards children in juvenile court. Previously known as an exemplary employee, someone who had led Clayton’s Court Appointed Special Advocates to a statewide award in 2007, Bostock says that his employers lied: they fired him not because he mishandled money, but because he is a gay man. “I was devastated. I had just lost the job I had loved – my passion. I lost my source of income. I lost my medical insurance,” Bostock told Lawrence Hurley of Reuters. 

As a policy issue, it’s staggeringly obvious that gay and lesbian workers shouldn’t be fired from government jobs because of their sexual orientation. As a legal issue, it’s complicated by history and precedent. 

The Comparator Debate

When we grew plants in elementary school science class, we controlled the conditions of one plant’s growth (putting it in the dark) and then welcomed variability in the other plants’ sunlight. So too there must be a dark plant to compare Bostock to — a “control person” — to determine whether Bostock was discriminated against because of his sex. 

Solicitor General Noel Francisco argues that Bostock should be compared to a lesbian woman. According to Francisco, gays and lesbians “would be similarly situated — and they would be treated the same” in a work environment. So if an employer treats gay men differently from lesbians, then he is discriminating based on their sex; if he treats them the same way, whether for good or bad, then there is no discrimination because men and women received identical treatment. 

Bostock argues that he should be compared to a straight woman. Clayton County would not have fired him if he were a woman attracted to men. Because he is a man attracted to men, he was treated unfairly, and it follows that he was fired because of his sex.

After reading Marty Lederman’s blog post for Balkinization, I agree with him that the Solicitor General’s argument is seriously flawed. For starters, Francisco’s brief assumes that employers would treat gay and lesbians identically under a kind of “heterosexuals only need apply” policy.

This common framing of the question… is not, in fact, the scenario raised by these cases or, indeed, by virtually any of the reported cases in which employees have alleged that they were fired because of their same-sex orientation.  In Bostock and Zarda, for instance, if the supervisors in question did fire the plaintiffs (at least in part) because they were gay men–something the plaintiffs will have to establish–it’s not at all obvious that they would have fired similarly situated lesbians, too.  Indeed, both of the defendant employers in these cases, like almost all employers covered by Title VII, steadfastly insist that they don’t have a policy or practice of hiring only heterosexuals—in part, no doubt, because such discrimination would be unlawful wholly apart from Title VII, but also because very few employers in the nation today would be willing to exclude all gay employees from their workforce

This is an obvious point, one that shows the Solicitor General’s hypothetical isn’t helpful to resolving this case. Lederman then addresses the idea that negatively treating both gay men and lesbians somehow cancels out the illegal discrimination. The problem with this (or at least, one of the problems) is that when employers pigeonhole gay men, they are applying a completely different set of stereotypes than they are to lesbians, since gay men are pushed to be more masculine and lesbians to be more feminine. To treat macho women worse than macho men and vice versa is, according to Price Waterhouse v. Hopkins (1989), plainly illegal under Title VII.

The Textualist Debate 

Now we arrive at the molten core of the debate. Both Bostock and Clayton County are using textualism, an interpretive method that looks to the plain meaning of the text, to determine whether the Civil Rights Act plainly forbids discrimination against gays and lesbians.

You might wonder, “How can the Civil Rights Act include LGBT people in this way when the law was passed in 1961, a time when gay rights weren’t mainstream and the when the law’s focus was primarily male-on-female discrimination?” Yale Law Professor William Eskridge answers your question in a recent post for SCOTUSblog. He notes that the law was amended in 1972 and 1991 to forbid employers from using sex as a “motivating factor for any employment practice,” and he believes that you can’t separate the word “sex” from same-sex attraction. As a result, he would flip the question around, asking, “How can companies impose sex-based stereotypes on their employees — i.e., assuming that men must be masculine and attracted to women — when sex-based stereotypes are absolutely illegal under the Civil Rights Act?”

Clayton County finds a different meaning in the text. Quoting the Supreme Court’s 1979 decision in Perrin, it points to the “fundamental canon of statutory construction that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary meaning.” It clarifies that the word “contemporary” refers to the time the statute was passed, not to our current time, and it claims that the Civil Rights Act in the 1960’s would not be commonly understood to encompass discrimination based on sexual orientation, even though our understanding of sexual orientation may have evolved since then.

The words of the law are clear: you cannot treat someone unfairly because of his or her sex. Nevertheless, finding the law’s plain meaning is not the same as isolating its individual words so that they read differently from how they read in context. I think that Clayton County is confusing the former with the latter. If you isolate “sex” in a vacuum, then there is no doubt it refers to the status of being a man or woman. But the Civil Rights Act is not a vacuum; it’s a law with detailed provisions and decades-old legal precedents to its name. These precedents such as Price Waterhouse v. Hopkins make clear that enforcing sex-based stereotypes (there are exceptions if a certain sex or characteristic is considered essential for the job) is the same as discriminating based on sex.