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 Linguistic 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. But 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 grounded in most people’s everyday experience and is unhelpful 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 feminine men worse than feminine women is, according to Price Waterhouse v. Hopkins (1989), plainly illegal under Title VII.

I’m on the way to my aunt’s birthday party right now, but I’ll update this post tomorrow with some of the other arguments bandied about in Bostock.

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Saturday, August 17, 2019

Encino Motorcars, LLC v. Navarro: Opinion Analysis 

By Danielle Efrat 

Chevron deference is the well-established practice that when a government agency interprets an ambiguous statute, the courts must defer to that interpretation so long as it’s reasonable. This form of judicial deference is unpopular with some members of the Supreme Court, as they feel it gives undue power to government agencies. In recent decisions such as Kisor v. Wilkie, the justices have narrowed Chevron’s scope and indicated that they may overturn it someday. However, these decisions have failed to attract media attention despite their widespread implications for administrative and labor law. One of this term’s overlooked opinions is Encino Motorcars, LLC v. Navarro. 

Encino Motorcars, a company based in Southern California, hires service advisors to meet with customers, offer repair services, and sell them accessories and repair parts. Hector Navarro was one of those service advisors. He claims that Encino Motorcars failed to pay him the overtime money he deserved, thereby violating the Fair Labor Standards Act. His employer disagreed, arguing that service providers are exempt from overtime protection under the FLSA. 

Together with other service advisors, Navarro sued Encino Motorcars in a federal district court. The district judge sided with Encino Motorcars, finding that the FLSA exempts service advisors from being paid overtime money. But then the employees appealed to the Ninth Circuit Court of Appeals. There, the judges found that the FLSA was ambiguous — it could have been interpreted one way or the other. So they deferred to the Department of Labor, which in 2011 said that service advisors are protected by the FLSA’s overtime pay requirement. This was Chevron deference in action; Navarro had won. 

Encino Motorcars appealed to the Supreme Court, but the justices did not decide whether the FLSA covers service advisors. Only this past year, when the case arrived at the Court for the second time, did the justices give a definitive answer. The question before them was whether service advisors are “salespersons” under the FLSA — if they are, then they do not have to receive overtime pay. And in June 2016, Justice Thomas held for the 5-4 majority that service advisors are salespersons for purposes of the law. 

According to Thomas, the best reading of the text shows that “service advisors” are salesmen who are essentially engaged in servicing automobiles. Thomas first cited the Oxford English Dictionary definition of a “salesman” —“someone who business is to sell goods or conduct sales.” He noted that “service advisors” serve customers by offering them repair and other services for their vehicles. 

He then rejected the Ninth Circuit’s reliance on the distributive canon, which is a form of interpreting laws that he thought was an “unnatural fit” here. He also disagreed with its decision to use the legislative history of the FLSA. 

In her dissent, Justice Ginsberg emphasized the importance of legislative history as well as the need to follow the distributive cannon in siding with the employees. First, she noted that Congress chose not to explicitly include “service advisors” as one of the categories of employees at automobile dealerships that are exempt from the law. Instead, Congress explicitly exempted only three occupations..

Rejecting the claim that “service advisors” are the same as “salesmen,” Justice Ginsburg states that service advisors neither sell automobiles nor service, which she defines as repairing or maintaining vehicles. Rather, they greet car owners, suggest repair services to rectify customer complaints, and provide owners with cost estimates. She maintains that since they neither sell nor repair automobiles, they should not be exempt from FLSA coverage.

This ruling by the Supreme Court, although it seems narrowly focused on the meaning of a single phrase, has major consequences for American employment law. Here the Supreme Court reversed a decades old legal principle which held that the overtime exemptions in the FLSA should be construed narrowly. The prior rule was very protective of employees; it held that employers seeking to exempt their workers had to show that the exemption “plainly and unmistakably” applied. After Encino, however, exemptions are now given a “fair reading,” which is a standard more favorable to employers. Now employers must merely show that their view of the exemption is more consistent with the text, rather than having to demonstrate that the exemption was intended by Congress. 

Thursday, August 8, 2019

Carter v. Commonwealth Petition for Certiorari

by Jason Frey

About five years ago, the “texting-suicide case” originated in my home state of Massachusetts. The story exploded online in 2018, garnering national attention for an incident that began as a local tragedy. It began when Michelle Carter and Conrad Roy, III met in Florida in 2012. Upon returning home to Massachusetts (she lived in Plainville and he in Fairhaven), they started a long-distance relationship that, by nature, existed mostly in the form of texts and phone calls. Roy struggled with serious mental health issues at the time and discussed and contemplated suicide quite often. He had sought treatment a year before meeting Carter, but nevertheless he “attempted suicide on multiple occasions.” At first supportive, Carter’s “attitude changed” to the point where she actively coerced Roy to kill himself. And on July 12, 2014, Roy did die of suicide. 

After this tragic death, Michelle Carter was prosecuted by the Commonwealth under Massachusetts General Law Part IV, Title I, Chapter 265, Section 13. She was found guilty of committing involuntary manslaughter for compelling Roy to kill himself. In Massachusetts, this crime is defined as “an unlawful killing that was unintentionally caused as the result of wanton or reckless conduct that a defendant engaged in.” Note that “unintentional” does not mean that the conduct itself was by accident, but that the death was an unintentional or otherwise undesired result (it can be debated whether or not Carter’s actions were intended to lead to his death, but the juvenile court thought that they weren’t). 

Carter is now petitioning the Supreme Court to hear her case. Her legal team presented two questions: 1) Whether Carter’s conviction for involuntary manslaughter violated the Free Speech Clause of the First Amendment, because her text messages were not speech that was “an integral part of conduct in violation of a valid criminal statute,” Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949)? and 2) Whether Carter’s conviction violated the Due Process Clause of the Fifth Amendment—because in assisted or encouraged suicide cases, there aren’t clear guidelines about how to prevent “arbitrary and discriminatory enforcement,” McDonnell v. United States, 136 S.Ct. 2355, 2373 (2016)? I’d like to split this analysis into three sections: the first two will be explaining each question, respectively, and the third will be my opinion as to whether or not the Supreme Court should vote for cert. I will also note that since the Supreme Court has not decided to hear this as of now, and as there are no formal arguments from either side as to the merits of this case, I will not be sharing my opinions on how the Court should decide on each question.

In constitutional law, different kinds of speech have different levels of protection attached; pure speech, hate speech, obscenity, and speech in schools are the four largest categories encompassed by the First Amendment. In general, pure or “political” speech is the most protected, since laws that limit pure speech must be narrowly tailored to a compelling government interest. Carter’s legal team claims that her words must fall under the category of pure speech because it was done without inherent bias on a personal level, through words that conveyed a narrow idea. As such, her words must be given all due consideration under First Amendment protection even when they conflict with statutory law. Her team also references Giboney v. Empire Storage & Ice Co., which says that pure speech can be limited if it is “an integral part of conduct in violation of a valid criminal statute.” Carter contends not only that Giboney is unclear, but that the Massachusetts Supreme Court wrongly expanded Giboney to criminal cases when it originally involved a civil injunction. 

Whenever the government seeks to restrict personal freedoms guaranteed by the Constitution, it must weigh its own interest in restriction with the private citizen’s interest in liberty. It follows, then, that Massachusetts has a valid interest in limiting Carter’s speech because it will help prevent further deaths. 

Moving on, the second question involves the Due Process Clause of the Fifth Amendment. This clause has two faces: substantive and procedural. The former promises that laws are fair and non-discriminatory. The latter promises that laws are enforced equally and that the defendants are informed of their rights and responsibilities. Carter’s petition breaks down her Due Process argument into multiple parts, but the gist is that Giboney is too vague and that there aren’t distinct guidelines in statutory law for speech directly involved with criminal activity (e.g. coercing someone to take their own life). 

But even if Carter wins on both points at the Supreme Court, that’s not enough to entirely overturn Massachussett’s ruling. She also has to demonstrate that her prosecution was discriminatory—meaning that Massachusetts prosecuted her without having previously and consistently enforced the law—and that a reasonable person wouldn’t know to avoid such behavior without transparent laws. I find this argument a little flimsy. And I rarely agree with Justice Thomas, but I think he’s right that a lack of clear guidelines is something to take up with the legislature, not necessarily with the Supreme Court.

This is a quick interjection before I give my final opinion. While on the subject of legislation, the Massachusetts legislature introduced a bill called “Conrad’s Law” on July 24 which would make it illegal to “intentionally [coerce] or [encourage] a suicide or suicide attempt.” It speaks volumes about our current society not only that we have to face suicide as a real health crisis at a statewide level, but also that we have reached a point where mental health is starting to become less stigmatized and we can talk about the effects of mental illness directly.

Now onto the big question: should the Supreme Court hear this case? “Important” cases tend to involve national issues, novel fact patterns, or multiple appeals courts disagreeing on an outcome. I don’t think that Carter v. Commonwealth is especially ‘important’ in this way. Compelled suicide, and the broader issue of using language as a tool of crime, is not so widespread as to warrant a Supreme Court decision. And yet as Carter’s petition repeatedly mentions, her case has yielded strong conflict in lower courts, specifically at the state supreme court level; this discord is a gift to her.

It helps Carter that her case is what Court-watchers call a “good vehicle,” meaning that it has a relatively straightforward fact pattern; it is not so narrow that the Court’s final decision would only apply to her situation. At the same time, though, her crime created a media circus that the Supreme Court might not want to enter. And because it involved text messaging, a relatively new technology, the justices may prefer for legislatures to intervene first rather than the courts. 

I think that the Supreme Court should stay away from this case. It only accepts 1% of all cert petitions each year, and it has bigger constitutional fish to fry than Carter. Plus, I foresee Carter becoming very messy if it proceeds to the Supreme Court, and with all of the precedents regarding free speech that exist already, a new decision may just muddy the waters. Even more importantly, if the justices agree with the Massachusetts Supreme Court’s decision to uphold Carter’s conviction, they should leave it be at a state level and live with the degree of conflict that remains.

Sunday, July 21, 2019

No middle ground on abortion? Whole Woman’s Health v. Hellerstedt and the failure of intermediate scrutiny; a response to Will Foster

By Curtis Herbert

This post will reference tiers of scrutiny a lot. So, for those who are unfamiliar with the concept, here is a brief scrutiny explained:

Tiers of scrutiny are what the Supreme Court uses to determine what kinds of justifications the government must give for legislation that is being challenged as unconstitutional, and who bears the burden of proof when a law is being challenged. There are three main tiers: rational basis scrutiny, intermediate scrutiny, and strict scrutiny. 

Rational basis scrutiny requires that the government show only that a law has a rational connection to a legitimate state interest. Under Supreme Court precedent, almost anything is a legitimate state interest except moral disapproval of a certain activity. Usually, the person challenging the law must prove that there is no rational basis. When rational basis scrutiny is applied, the government will almost always win and the law will be upheld.

Strict scrutiny is what the Court uses when a law infringes on a right such as free speech, or when the government makes a law that discriminates based on race. Strict scrutiny requires the government to show (here, the burden of proof is on the government) that its law is narrowly tailored to suit a compelling governmental interest. With strict scrutiny, the government will almost always lose.

Intermediate scrutiny occupies a sort of halfway point between the two. The burden of proof remains on the government, although it must only demonstrate that its law furthers an important interest, using means that are substantially related to that interest.

In a recent post, Will Foster asks an interesting question: can there be a middle ground on abortion, and if so, what would that look like? Although I agree with Will’s description of the case law, I do not believe that the Supreme Court can ever reach a ‘middle ground’ that resembles anything but a heightened intermediate scrutiny or a trumped-up version of rational basis. There are several reasons for this. One of them is the inevitable varying opinions of the lower courts. Vague and open-ended tests that are susceptible to many different interpretations tend to produce circuit splits until the rules are resolved clearly by the Supreme Court. At this point, we see another reason intermediate scrutiny and balancing tests tend to fail: the justices themselves often disagree about balancing tests’ requirements, which in turn causes ‘adjustments’ that push tests one way or the other. Changes in the composition of the Court cause conflicting and often outright inconsistent interpretations, or simply avoidance, of various tests, leaving everyone in a cloud of darkness.

One of the better examples of an intermediate scrutiny test veering towards strict scrutiny lies in gender-discrimination cases. In an early dispute, Reed v. Reed (1971), the Supreme Court applied an incredibly rigorous version of the rational basis test to an Idaho law that gave preference to men over women. This move, however, was inconsistent with Williamson v. Lee Optical (1955), where the Court set out a much less demanding standard. Seeking a solution that wouldn’t jettison any landmark cases, the Court came very near to applying strict scrutiny to gender classifications in Frontiero (1973). Then, in Craig v. Boren (1976), the Court outlined what would become the first intermediate scrutiny test. 

The justices had widely differing views about how to apply intermediate scrutiny, and their next opportunity to apply it would be United States v. Virginia. There, Virginia had established a military institute to train citizen soldiers. The school was designed to be all-male, and it had strict athletic and behavioral requirements to reflect that condition. When a female high school student sued to gain entrance, claiming that the school’s all-male policy violated the Equal Protection Clause of the 14th Amendment, the school argued that it had an important interest in training young men to protect their country. Its single-sex school accomplished that objective, it added, in a way that a co-educational school could not. 

Justice Ginsburg’s majority opinion adjusted the intermediate standard to become more strict. She said that unless there was an “exceedingly persuasive” justification for the Virginia Military Institute’s all-male admissions policy, it would be struck down. In dissent, Justice Scalia argued that the test should be less strict; he would have deferred to Virginia about how important their interests were and how well their means fit their ends. 

In my view, this case would have been almost impossible to resolve on simple intermediate scrutiny grounds. The facts are close, and the test is susceptible to different readings. And without telling lower courts to err to one side or the other in close cases, the circuit courts would have been in disarray. The Fifth Circuit might have deferred to the government, while the Ninth would have forced a special justification. Something had to give one way or the other, and ultimately Ginsburg won out. 

The Supreme Court’s Establishment Clause jurisprudence is another great example of what happens when complex multi-factor tests run wild. Let’s begin with the so-called Lemon test from Lemon v. Kurtzman (1971). The Lemon test is, or maybe was, (its status is unclear) the test the Court uses to determine when laws violate the Establishment Clause. It requires that statutes which promote religion have a secular purpose, with a primary effect that is neutral towards religion, and not create “excessive entanglement” with religion. The first two factors are subjective, and the third is notoriously vague. But the Court’s successive cases involving the Lemon test provide little help, especially because the Court uses the Lemon test infrequently and inconsistently. Justice Kennedy, for example, is characteristically vague in Lee v. Weisman, and in Town of Greece v. Galloway Court sidestepped the test altogether. The Court’s recent religious monument case, while it provides some guidance, and perhaps signals a shift towards a more deferential version of the Lemon test, did not jettison the test entirely. Because Establishment Clause cases arise fairly often, the Lemon debacle will probably end within the next decade. Based on the composition of the Court, I predict that it will end on the more deferential side of intermediate scrutiny. 

Another example of vague and complex tests is found in the area of commercial speech, which concerns the kinds of regulations the government can place on corporate entities. The Court’s cases cut in both directions; upholding regulations in Planned Parenthood v. Casey, upholding them in Glickman v. Wileman Brothers, and invalidating them in Central Hudson and several other cases. In a streak of dissents, Justice Rehnquist invoked the widely Lochner v. New York (1905) – where the Court invalidated a minimum wage because it violated workers’ economic liberty – and worried that his Court was also erring on the side of under-deference. Justice Breyer, many years later, would echo these concerns in the next case, NIFLA v. Becerra. 

In NIFLA, the Court, among other things, used an especially demanding version of strict scrutiny. After applying this heightened version of intermediate scrutiny, the Court struck down the law at issue. Justice Breyer was especially aggrieved in dissent over the apparent demise of one of his beloved intermediate scrutiny tests; Breyer would have made it easier for the government to regulate commercial speech specifically, while Thomas made it harder in his majority opinion.

All of the above factors that caused the Court to shift from intermediate scrutiny towards strict scrutiny or rational basis are also present with abortion. The analysis portion of Whole Women’s Health v. Hellerstedt, (the Court’s most recent abortion case) reads like something out of Justice Breyer’s most exotic, ambitious, and fantastical dreams. Replete with bullet points of factors, and coupled with a healthy dose of analysis, his opinion is a premier example of intermediate scrutiny. However, his version of heightened intermediate scrutiny hasn’t garnered a consensus from the lower courts. Cases like June Medical Services (a recent decision from the Fifth Circuit) demonstrate that even though cases may arise with similar facts to Whole Woman’s Health, circuit courts will disagree on how to resolve these cases and force the Court to hear them. And given the hot-button nature of abortion cases, it is inevitable that even if the Court narrowly resolves its first abortion cases, it will eventually have to take a position on abortion that mirrors many other areas of law – either by moving its already strict standard upwards or by lowering it significantly.

The Supreme Court will therefore not be able to resolve abortion cases in a way that cuts down the middle. It will be decisive one way or the other, even if one side cannot claim an absolute victory. And if it isn’t decisive the first time around, history tells us that it will be eventually.

Interview: Jeffrey Rosen

by Anna Salvatore

Jeffrey Rosen is the President and CEO of the National Constitution Center. From 1992 to 2014, he was The New Republic‘s commentator on legal affairs. He is now a contributing editor at The Atlantic, where he published an article on Wednesday about the late Justice Stevens.

Since 2016, Mr. Rosen has also written two biographies of Supreme Court justices: Louis B. Brandeis: American Prophet and William Howard Taft: The American Presidents Series. Below, we discuss his writing process for these biographies, his most memorable reporting experience for The New Republic, and his clerkship for Judge Mikva on the D.C. Circuit. Our conversation took place in his office in Philadelphia.

My questions are in bold and marked with (Q), and his answers are in plain text.

(Q) Your office is filled with legal and historical books. Of the books that are here, which ones do you recommend most frequently to other people? 

Let’s start with Madison’s writings. The Library of Congress edition has both his major Federalist Papers and the Virginia and Kentucky Resolutions. His “Advice to My Country” is amazing. The Colleen Sheehan book is also brilliant: James Madison and the Spirit of Republican Self-Government. And another one that really changed my thinking about Madison is Greg Weiner’s Madison’s Metronome, which is about the importance of slowing down deliberation, and how the whole Constitution was designed to create speed bumps and roadblocks so that mobs or factions couldn’t form quickly. 

Last night, during the conversation with George Will, I mentioned the book in which I learned about the Founder’s conception of the unalienable right to conscience, and that’s Morton White’s Philosophy of the American Revolution. He quotes Scottish Enlightenment thinkers as defining what an unalienable right is, and how conscience is unalienable because our opinions are the product of involuntary thoughts presented to our reasoning minds. I can’t control my thoughts or opinions because they’re the product of external experiences interacting with my powers of reason. So I can’t surrender to you, or to anyone else, the ability to control my thoughts because, as a reasoning mind, I can’t entirely control them myself!

Of course, Eric Foner. You could start with Reconstruction and then move onto his shorter books. Sean Wilentz’s No Property in Man argues that Madison explicitly refused to take a position on whether the Constitution could create property in man, and when Frederick Douglass read Madison’s notes in 1840, it changed the way Douglass thought of himself as a citizen and a man. 

I love Daniel Farber’s Lincoln’s Constitution because it shows what a precise lawyer Lincoln was, and how he suspended habeas corpus when he thought the emergency required it, but tried to remedy this by calling Congress into session as soon as possible after the emergency had passed.

(Q) I always like to begin by asking about people’s early years. What were your interests when you were my age? 

I went to a wonderful high school in New York City — the Dalton School — and I had the most spectacular teachers. I feel like everything that I am, and all my love of history and English and music and art, came from this experience. I had magnificent English teachers, including Miss Hortense Tyroler, an elegant woman and brilliantly precise writer. She was a New Critic from the 1940s, with very beautiful handwriting, who taught me about the importance of close attention to the placement of every word. Michael Berthold, who went on to be one of my thesis advisers in college and now teaches at Villanova was another spectacular teacher of English and American literature. We had to write at least one paper a week, and his careful comments on each of them were wondrous to behold. He was the closest reader I’d ever had and it was a wonderful way of learning how to write. 

I did a lot of theatre. I’m a ham. The culmination of our efforts was a performance of the musical “Oliver.” I was Fagin, and it was a lot of fun. 

I was in student government and, as a senior, was the head of the high school government. At our school, the whole high school met in the theatre every week for voting and debate and discussion. I feel in some ways what I’m doing at the Constitution Center is very much like what I did in high school — moderating debates among engaged people about political and constitutional issues. 

So I was very lucky and I just want to say again: it was the teachers who made all the difference. 

(Q) Can you recall any specific lessons that your English teachers imparted to you? I’m curious about how you developed as a writer. 

Mostly by writing a great deal – at least one English paper every week. And the topics of the papers were serious. I remember one paper about imagery in Shakespeare: there was a school of Shakespearian criticism at the time that would count every reference to eddies, waters, or flowers and would make interpretations about the word counts. I would go to the New York Society Library, which is a very old and elegant lending library on the weekends, and work there while I was in high school.

The teachers were extremely attentive to individual word choice, as I mentioned,  and would mark up the papers with extreme thoughtfulness, care, and precision. It was like being line edited by a New Yorker editor, because they made sure that there was no fat in the writing. Their comments on the arguments were also rigorous and always improved the structure and clarity. Also the prose. I remember one paper where I used the word “facilitate,” and Michael Berthold said, “That’s a three-dollar, fancy, multisyllabic word. Why don’t you use something simpler like ‘ease’?” That was a Strunk-and-White-like early lesson and I’ve never forgotten it: don’t use three syllables when you can use one.  

Then in college, I studied with the great scholar of Samuel Johnson, Walter Jackson Bate. His biography, the Life of Johnson, is one of the great literary biographies. Bate taught us how Johnson, and also Burke and other eighteenth century writers, used classical tropes like balance and antithesis and gradual expansion to create a sense of rhythm in language. So in college, I tried to write in a Johnsonian style and trying to create rhythm and balance. But then when I went on to be a journalist, I got the best advice about writing I ever got when a New Yorker editor told me, “write it like you’re telling it to someone over dinner.” That was a much more conversational approach, and it freed me up to communicate as freely as possible. My goal in writing today is just to connect and communicate and express whatever I have to express as clearly and directly as possible. 

(Q) I wonder how much your oratory practice helped you mentally articulate your thoughts before committing them to paper. 

Yes. Eleanor Roosevelt’s advice about public speaking was “have something to say, say it, and sit down.” And you do have to have something to say. But you don’t want to be too formulaic, and you have to open yourself up to the flow of whatever light comes in. In the discussion with George Will last night, I didn’t have a rigid list of questions in advance because you never know where the conversation is going to go. You do have to read the book. And after reading the book, you have broad categories to ask about, without knowing exactly what would emerge from the conversation.

The goal is always to let the author speak for him or herself. Try to ask questions — not gotcha questions — to let everyone you’re interviewing make his or her arguments as fully as possible, and then if you want to challenge or follow-up, you can do that. Stay very present, completely in the moment, listening closely, and be flexible enough to let the conversation go wherever it goes. 

(Q) Are there any questions that you’ve developed over the years that tend to yield surprising or revealing answers? 

No, there’s not one rosebud question that opens things up. Of course, you can get people to talk very happily by asking them about themselves. Especially about their childhood, which everyone cares a lot about but isn’t often asked about. That’s a good way to get people to open up. I did a panel at Berkeley Law School the day before yesterday, and Michael Lewis interviewed the first panel. He asked the judges, “You were kids first. How does someone want to become a judge?” It was a great question and got them going. 

Generally, my goal as a journalist — and I still think of myself as a journalist, because that’s what I did for most of my career — is to ask questions that will allow people to talk about themselves in a way that they feel most comfortable. 

(Q) That’s a great segue into your New Republic years. On the magazine’s website, I found a piece of yours called “Like Race, Like Gender” from 1996. You had traveled to the Virginia Military Institute soon before Virginia v. United States was decided. Could you talk about that reporting experience and what you took away from it? 

I’m glad you found that piece, because that was one of the New Republic pieces that I learned the most from. Beforehand, I had never really done a lot of reporting about Supreme Court cases; I was sitting in my office and opining, which is much less interesting. So I rented a car and went out not only to see VMI, but V-WIL, which was the Virginia Women’s Institute for Leadership. That was the brief, supposedly separate but equal college that was created in a Victorian spirit to avoid the Supreme Court striking down VMI, and it failed to convince the Court. 

I was there for a brief moment while these two parallel institutions existed, one for men and the other for women, and it was fascinating to see the Jeremy Bentham-like reality of VMI, with its Panoptical inspection tower. It was also a privilege to meet Josiah Bunting III, the scholarly Superintendant, and to talk with him him sit in his office overlooking the playing fields of VMI. I asked him, “How do you feel about the fact that the Supreme Court might strike this down?” He said, “It’s like the Adagio section of Mahler’s Fifth — there’s a sense of wistfulness.” He was glorious. 

The story was great because it was surprising. I thought VMI was going to be like West Point or an extremely militarized academy, but it was much more like something out of Tom Brown’s School Days. I sat in a poetry class and watched boys — some from disadvantaged families — talking about their families and reading Walt Whitman. As General Bunting put it, the school was for kids who didn’t fit in in other places. It completely shattered the stereotypes that I had going in, and it gave me a window into an institution that was about to change — for the better, as it turns out. As Justice Ginsburg said, ‘Boys will be boys. They’ll get used to it.’ And they did. But I think it taught me the importance of reporting, of interviewing people and talking to them rather than just reading and opining. 

These long, reported pieces were the most satisfying journalism I did. They took a long time, and they were harder than book-writing. 

(Q) Why were reported pieces harder?

You have to pick a topic that’s of broad general interest and publish the piece at precisely the right moment, after lots of reporting and research. I also used to struggle over each sentence more. If you view the writing as expressing what you have that’s inside of you, then it comes much more easily.

One of my favorite book experiences was my biography of William Howard Taft. I had the whole thing outlined, and I had done the reading — but I woke up and it just flowed out. My latest book, Conversations with RBG, was also a great pleasure to write: it was a labor of love to collect our interviews over the years and to organize them by topic. Justice Ginsburg is a personal and constitutional hero and I’m thrilled that the book will be out in November. 

I like writing short books on really tight deadlines, and fear is a great motivating factor. Four of my books –RBG, Taft, Brandeis and The Supreme Court book, were on six-month deadlines, and it was a chapter a month for six months. You don’t have any time to fuss — you have to get it out, you do your writing every day, and then it’s done. The tight deadlines really help to focus the mind. 

(Q) A major part of the writing process is selection, and I imagine this is especially true of short books. Were there any details about Taft or Brandeis’s life that you wanted to include, but deleted to preserve the short book length? 

(A) No. Short is always good, and the discipline of cutting is good. My Taft book was longer — it was something like 60,000 words in the first draft, and I cut it down to around 49,000. The journalist Jessica Mitford said you should murder your darlings, and I think no book has ever suffered from being shorter. 

Another editor told me that there should be something memorable on every page. And I agree that every sentence should tell. There should be no fat. If you don’t understand a sentence in the book, it’s often a sign that the author isn’t clear about what he or she was trying to say. That’s why I think, even in academic writing, it’s important to write clearly and not to hide behind abstractions. 

(Q) Shifting gears a little bit: If you could interview anyone who doesn’t necessarily have to be alive or in the law, who would it be and why? 

There’s someone who eluded me for a long time, but I fulfilled my dream of interviewing him just a few years ago — and that was Tom Lehrer. He was a satirist from the 1960s whom I loved as a kid. He wrote wonderful songs ranging from “The Elements,” which sets the periodic table to the tune of the “Modern Major General” song from Gilbert and Sullivan, to songs about Hubert Humphrey and civil rights to Wernher Von Braun, the German scientist. I loved his songs ever since I was in high school and always wanted to meet him. He refused to meet me as a journalist. Then a friend of mine, who knew him, interceded and he agreed to meet as a fellow musical theater fan.  So we talked about Gilbert and Sullivan and musical theatre for four hours. It was the most wonderful conversation I could possibly imagine. 

Beyond that, the C-Span team was here the other day for a program we did together around the C-SPAN book on the presidents. Brian Lamb, the great interviewer and founder of C-Span, asked each of us which presidents would you have for dinner. I said Madison, of course, because it would be so superb to talk with him about the Constitution. 

Someone have picked Theodore Roosevelt. But Theodore Roosevelt would not have been a good dinner companion, as Stephen Budiansky relates in his great new book about Oliver Wendell Holmes. Holmes’s wife, Fannie Holmes, said to someone who just had dinner with Theodore Roosevelt: “Here’s what happened. The President wanted to talk to you more than anyone else, and wanted your advice about politics in New York. He spent the whole evening fixed on you, and you felt like you were the only person in the room.” The person said, “My goodness, Mrs. Holmes. It’s as if you were in the room!” She’d basically seen him do this number a bunch of times. That suggested to me that Roosevelt had a shtick that he would use to win people over. 

(Q) Before we finish, I’d love to talk about your clerkship with Judge Mikva on the D.C. Circuit. Did you have any epiphanies about areas of the law you liked — maybe Fourth Amendment law — or didn’t like? 

I did, actually, and it was that. [laughs] The D.C. Circuit has two big categories of cases: criminal procedure cases and administrative law cases. I really liked the criminal procedure cases, and I was not detail-oriented enough to be good at the administrative law cases. The administrative cases involved most notoriously the Federal Energy Regulatory Commission, or FERC, and there was nothing more terrifying than a FERC case because they had huge appendices and were incredibly fact-specific. My co-clerk, Julius Genachowski, went on to become head of the Federal Communications Commission. We had a system. There was a really delicious muffin place near my house, and I would bring Julius warm muffins in exchange for trading the FERC cases for the criminal procedure cases. It was great because they were still warm by the time you got to Judiciary Square. I wrote the crim pro cases and he wrote the FERC ones, and he did a much better job. 

(Q) Judge Mikva was a Congressman before he became a judge, meaning that he probably had some interesting things to say about statutory interpretation and whether to use legislative history. What he did teach you in that area? 

Judge Mikva was a great man. He served in Congress, he was Chief Judge of the D.C. Circuit, and then he went on to be White House counsel under President Clinton, so he was in all three branches of government. He had such a practical understanding of government. When he ran for Congress in the Jewish neighborhoods in Chicago, his slogan was, “Mikva stands for clean government.” Those who are Orthodox Jews understand that a mikvah is a ritual bath that women take for purification. Famously when he was starting off in Chicago politics, he went to see a Chicago boss. The guy said, “Who sent you?” Mikva said, “Nobody.” And the guy said, “We don’t want nobody nobody sent.”

On the appellate court, Judge Mikva very much believed in the importance of legislative history and had nothing but impatience for those like Justice Scalia who insisted that only the text should rule. He thought that committee reports did reflect what Congresspeople thought about, and said that the purpose of statutory interpretation was to express what Congress intended, and therefore you should look at whatever evidence might be useful without any of it being dispositive. Robert Katzmann, the Chief Judge of the 2nd Circuit, channelled those arguments in his really good book, Statutory Interpretation.

Other interviews conducted by Anna Salvatore: Michigan Supreme Court Justice Elizabeth Clement, University of Arizona law professor Andrew Coan, UChicago law professor Justin Driver, legal journalist Chris Geidner, SCOTUSblog founder Tom Goldstein, former Solicitor General Neal Katyal, court artist Art Lien, New York Times Supreme Court correspondent Adam Liptak, UCI Law Professor Leah Litman, litigant extraordinaire Fane Lozman, Princeton professor Robert George, former Court writer Linda Greenhouse, legal writing expert Ross Guberman, Georgetown professor Shon Hopwood, NPR reporter Carrie Johnson, Congressman Jamie Raskin, Fix the Court Director Gabe Roth, IU Maurer Law Professor Ian Samuel, BU Law professor Jay Wexler, and Lawfare editor-in-chief Benjamin Wittes. 

Thursday, July 18, 2019

by Curtis Herbert

By now, many of you have probably heard of the passing of Justice Stevens. Although I’d like to share my thoughts, I won’t pretend to have some special insight into his life. I’m not a former clerk, family member, or personal friend. My account of his impact and character is probably not unique. But that, I believe, is what makes it worth telling. For me, as for many, Justice Stevens was someone whom I’ve followed closely. And if my observations are anything close to the truth, he was a special man.

The first thing that sticks out to me about Justice Stevens is his track record of service. To serve one’s country during wartime as a soldier, as well as for many years as a judge, is an admirable sacrifice. I think that two of his judicial opinions especially demonstrate his intellect and his willingness to candidly engage with opposing viewpoints. One of these is his dissent in D.C. v. Heller. What is most interesting about his dissent is not necessarily the bottom line, but his reasoning. Stevens engages with Scalia on originalist grounds, contending that the Second Amendment does not protect a right to keep and bear arms unconnected with service in a militia. Scalia and Stevens went back and forth for what seemed like an eternity, citing history, text, structure, and many other things besides. To see a justice step outside their usual interpretive methodology is rare, and to see someone go toe to toe with Scalia on original meaning is even rarer. Stevens took a similar step in Printz v. United States, again sparring with Scalia on the limits of Congress’s Necessary and Proper Clause power. 

Stevens authored several notable opinions besides; Chevron, instructing courts to defer to certain agency interpretations of statutes, Gonzales v. Raich, construing the Commerce Clause, and Hamdan v. Rumsfeld, concerning what kinds of rights Guantanamo Bay prisoners are entitled to. He also dissented in Bowers v. Hardwick and Bush v. Gore. Throughout his career, he exhibited the honesty required to change his views on affirmative action and the death penalty, issues which tend to be firmly entrenched in even the minds of the most open justices. All of this is to say, I suppose, that Justice Stevens was his own man: intellectually gifted, honest, and upstanding to a fault. And though I don’t have any special insight into his life, I can say that his reputation as a kind and intelligent man speaks for itself. Requiescat in Pace.

Opinion Analysis: Dept. of Commerce v. New York

by Jason Frey

For months, the Supreme Court has been considering Secretary of Commerce Wilbur Ross’ decision to add a citizenship question to the 2020 census. When the Secretary announced this change in March 2018, advocacy groups and the New York state government filed lawsuits against the Department of Commerce. The United States District Court for the Southern District of New York ruled that out of the three accusations leveled against Ross—1) a violation of the Enumeration Clause, 2) a violation of the Equal Protection Clause, and 3) a violation of the Census Act under 13 U.S.C.—only the first claim was invalid, and it allowed the others to continue through the courts. Then, the District Court concluded that Ross’s decision was illegal according to the Census Act and Administrative Procedure Act, even if his actions didn’t inherently violate a constitutional provision. 

In January 2019 the case arrived at the Supreme Court. The justices considered whether the District Court was correct in commanding the Secretary to remove the question from the census and in ordering investigation outside the administrative record—i.e. gathering personal emails, conference transcripts, meeting schedules, etc.—into Ross’ decision-making when there is no evidence that he disbelieved the data before him. 

Chief Justice Roberts, writing for the majority, partially affirmed the decision of the District Court, partially reversed it, and remanded the case to the Department of Commerce. This is a fairly complex opinion, so I will try my best to lay out each part of the ruling and explain the nuances of the suit’s legal standing.

Roberts begins by affirming the Court’s ability to review this issue under its jurisdiction. He refers to Article III of the Constitution, which “limits federal courts to deciding ‘Cases’ and ‘Controversies,’” defined as disputes in which “at least one plaintiff must have standing to sue.” In order to have legal standing, one of the plaintiffs must show actual or imminent injuries resulting from the defendant’s actions. Here, if the census question were added, response rates were expected to decrease significantly. Roberts agreed that this predicted decrease counts as an imminent injury for the plaintiffs (as even a 2% drop in population count can disqualify a state from federal funding), so they have legal standing to sue. This was a major point of contention in the oral arguments, with the petitioners attacking the statistical models generated by the Census Bureau. Roberts also rejected the argument that, because it’s illegal to not respond to the census,  the Department of Commerce isn’t responsible for ramifications of the citizenship question. 

The Chief Justice then reverses part of the District Court’s ruling by holding that Ross didn’t violate the Enumeration Clause. Roberts relies on precedent and Congress’s right to administer the census to conclude that the Secretary was within his power to conduct the census how he wished. In deciding this, Roberts contradicts calls to use a “reasonable relationship” standard to evaluate Ross’ action. A “reasonable relationship” is any action that is logically connected to the accomplishment of a certain task—in this case, that standard would review all of Ross’ actions based on whether or not they further the goal of counting the total U.S. population. The majority found this standard unreasonable because it would invalidate almost any question asked on the census, regardless of its connection to the response rate. Instead, Roberts contended that Congress’ long history of delegating census administration to the executive branch and ingrained practices in the federal government give Ross leeway to count the population how he sees fit.

To prove that the Court can review an administration’s performance, Roberts affirms the judgement that the Administrative Procedure Act allows the Court to rule on certain actions. Though conceding that there is an exception for some procedures, Roberts insists that such procedures have been limited to “certain categories of administrative decisions that courts traditionally have regarded as ‘committed to agency discretion,’” of which conducting the census is not one.
Roberts then reverses the ruling that the Secretary irrationally and unlawfully decided to add the question to the census. The District Court concluded that the Secretary of Commerce “arbitrarily and capriciously” ordered the Department of Commerce to reinstate the citizenship question, but Roberts completely denies that interpretation. In fact, the Chief wrote that Ross fairly weighed the four options offered to him by the Census Bureau on how to collect the information (each of them some combination of using administrative records or directly asking the question) and deduced that though using on-hand records is fairly accurate, it was not accurate enough. Roberts even included a slight dig at Justice Breyer, denouncing the Associate Justice’s opinion that Ross’s decision was arbitrary and capricious and calling it “pessimistic.” 

The plurality next reverses the finding that the Secretary violated the Census Act. In the original trial, the District Court agreed with the plaintiffs that Ross violated 13 U.S.C. §6(c) and §141(f); for some background on those specific provisions, check out my previous article on this case. However, Roberts argued that for the same reasons that the Secretary’s decision wasn’t arbitrary and capricious, it also complied with the requirement found in §6(c) that the Secretary of Commerce must use administrative records “to the maximum extent possible.” The Chief Justice believed that because Ross considered multiple solutions for collecting citizenship information, he was justified in using administrative records solely as a supplement to the census responses, which satisfies the condition of §6(c). The Court also looked at §141(f), which requires the Secretary to report to Congress about the census in advance. Because Ross didn’t inform Congress about the citizenship question in his March 2017 report, the District Court found that he had violated §141(f). Roberts disagreed, writing that Ross’s March 2018 report met the requirements of the law.

Finally, the Supreme Court had to answer the second question of this case: whether a District Court may “order discovery outside the administrative record to probe the mental processes of the agency decision maker … when there is no evidence that the decision maker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis.” This is by far the most fascinating part of the opinion, and it’s also where the Court definitively blocked the citizenship question from the 2020 census. 

Roberts recognized that the District Court invoked an “exception to the general rule against inquiring into ‘the mental processes of administrative decisionmakers,’” for the court believed that there was “strong showing of bad faith or improper behavior.” Here, while Roberts acknowledges that the District Court’s order to gather more information may have been premature, it was necessary because Ross’ stated reason for collecting citizenship data—to enforce the Voting Rights Act—was contrived. He seemingly agrees with Justice Kagan’s oral argument comment that this reasoning seemed like a “post-hoc rationalization.” Roberts concludes the opinion by affirming the District Court’s probe into extra-administrative record and at the same time calling for “reasoned decisionmaking.” 

I think that Roberts did the right thing here. This opinion was clear, direct, and reasoned. I commend him for balancing both the Secretary’s power to make administrative decisions and the cost of allowing this decision to proceed. The only part of the opinion that I disagree with is Roberts’ assertion that Ross did not violate §6(c). After reading the briefs and listening to the oral arguments, it seemed to me like Ross did everything in his power to choose the option that limited the use of administrative records, contrary to the statistical evidence presented to him. For example, the Department of Commerce argued that because Ross didn’t allow the final statistical models to be generated — and as a result, it couldn’t produce peer-reviewed margins of error — it was unacceptable to use the records at all. This argument is nonsensical. Apart from that, it seems like Department of Commerce v. New York has come to a logical end.