Opinion Summary: Rucho v. Common Cause

by Anna Salvatore

The Supreme Court decided Rucho v. Common Cause this morning, holding by a 5-4 vote that federal courts can’t hear partisan gerrymandering claims. 

It’s well-established that courts can hear legal questions, not political ones. And according to the majority opinion’s author, Chief Justice Roberts, it’s often a political exercise to decide what kinds of map-drawing are fair. “There are no legal standards discernible in the Constitution for making” judgments about partisan gerrymandering, he writes, “let alone limited and precise standards that are clear, manageable, and politically neutral.” 

Voters in North Carolina and Maryland would surely disagree. In 2012, Republican candidates for Congress earned 49% of the votes in North Carolina and 69% of the available seats, causing a federal court to strike down two of the districts as unconstitutional racial gerrymanders. The General Assembly created a new map, as mandated by the court, using technology and voting data to keep a Republican advantage. The difference was that the new districts were shaped along partisan rather than racial lines. And the General Assembly succeeded, for in the 2016 election Republicans won 10 out of 13 North Carolina seats with only 53% of the vote. Same story, different state in Maryland’s case, save for the fact that Democrats were trying to entrench themselves rather than Republicans. 

Terrapin and tarheel voters joined forces in Rucho. They claimed that the gerrymandered districts violated: 

  • Their First Amendment right to association,
  • The Equal Protection Clause of the 14th Amendment, 
  • Article 1, which mandates that Congresspeople be chosen “by the People of the several States”; 
  • And the Elections Clause, which gives state legislatures the power to set “Times, Places, and Manner of holding Elections” for Congress. 

The District Court used a three-part test to evaluate their claims. Plaintiffs had to show that 1) the map’s purpose was to “entrench” the incumbent and 2) that the partisan gerrymandering was severe. If the plaintiffs were successful, the mapmakers then had to 3) prove their intent wasn’t prejudiced. 

It’s easy to determine that Maryland and North Carolina’s maps were extreme, but the issue becomes more difficult when we zoom out. For example, what are the characteristics of a fair map — does it “[achieve] a greater number of competitive districts,” or does it allow each party to have “its ‘appropriate’ share of ‘safe’ seats”? Once we’ve established a definition of fairness, writes the Chief Justice, only then can we answer the question of “How much [partisan gerrymandering] is too much?” 

Alas, the majority opinion didn’t allow itself to go that far. “The Constitution supplies no objective measure for assessing whether a districting map treats a political party fairly,” wrote the Chief — and so, just as he called gerrymandering metrics “sociological gobbledygook” in the Gill v. Whitford oral arguments, here he refused to endorse any one metric. Jason Frey previously wrote about the partisan bias measurement and the efficiency gap, two up-and-coming gerrymandering metrics. They were unsurprisingly left on the shelves today. 

Roberts used historical arguments to bolster his decision. Section B of his opinion shows that the Framers deliberately gave map-drawing power to state legislatures, though they knew legislatures would not always follow the public interest, and that the Framers never said federal courts could hear partisan gerrymandering claims. And before we can ask, “Chief, why can the Court intervene in racial gerrymandering and one-person, one-vote cases?” he has an answer for that too. 

“[N]othing in our case law compels the conclusion that racial and political gerrymanders are subject to precisely the same constitutional scrutiny. In fact, our country’s long and persistent history of racial discrimination in voting—as well as our Fourteenth Amendment jurisprudence, which always has reserved the strictest scrutiny for discrimination on the basis of race—would seem to compel the opposite conclusion.”  (Shaw v. Reno) Unlike partisan gerrymandering claims, a racial gerrymandering claim does not ask for a fair share of political power and influence, with all the justiciability conundrums that entails. It asks instead for the elimination of a racial classification. 

“Vote dilution” in the one-person, one-vote cases refers to the idea that each vote must carry equal weight. In other words, each representative must be accountable to (approximately) the same number of constituents. That requirement does not extend to political parties. It does not mean that each party must be influential in proportion to its number of supporters.

He concludes by noting that partisan gerrymandering claims can be resolved through the political process. Voters can elect independent commissions to draw their maps, states can amend their constitutions, and so on. 

According to Wide Open Eats, a popular lifestyle website, the Dragon’s Breath Pepper is “fiery enough to close the airways, burn the throat and cause anaphylactic shock in someone who [eats] it.” And yet this pepper isn’t as scalding as Justice Kagan’s dissent this morning. Joined by Justices Breyer, Sotomayor, and Ginsburg, she tore into the majority for what she saw as an abnegation of its constitutional duty: 

For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.

And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people. 

And checking [partisan gerrymanders] is not beyond the courts. The majority’s abdication comes just when courts across the country, including those below, have coalesced around manageable judicial standards to resolve partisan gerrymandering claims. Those standards satisfy the majority’s own benchmarks. They do not require—indeed, they do not permit—courts to rely on their own ideas of electoral fairness, whether proportional representation or any other. And they limit courts to correcting only egregious gerrymanders, so judges do not become omnipresent players in the political process. 

I’ll now outline her arguments in the order they appear. 

First: It doesn’t matter that partisan gerrymandering has existed since the Founding. The fact is that today, computing and information technology allow mapmakers to draw districts with greater precision. Partisan gerrymandering is more threatening now that maps can be virtually assured of calcifying a party advantage. 

Second: The Supreme Court has long understood that extreme partisan gerrymandering violates people’s constitutional rights. Take the cracking and packing technique, where like-minded voters are confined in one district or spread over wide areas so that their votes count for less. Kagan believes that this technique violates the 14th Amendment’s Equal Protection Clause, which, according to Reynolds v. Sims, “guarantees the opportunity for equal participation by all voters in the election” of Congresspeople. When maps discriminate against voters based on their party affiliation, the maps are preventing them from “full[y] and effective[ly] participating in the political process” (Reynolds)

Third: The majority is wrong to say that courts can’t hear partisan gerrymandering claims without using, as Kagan puts it, a “judge-made conception of electoral fairness” like proportional representation. In fact, Kagan notes that federal courts have already identified an acceptable test — the three-pronged one mentioned earlier. For the next few pages, she outlines why this test is equipped to measure gerrymandering without leading to judicial intrusion. And preceding all of this was an accusation: that the majority preferred to “[throw] a bevy of question marks on the page” instead of taking the three-pronged test seriously. 

Fourth: When individuals’ rights are violated, and when the political process is utterly unresponsive, the courts may step in and say what the law is. 

She ends without the customary “Respectfully, I dissent,” indicating the depth of her feeling about this case: 

Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent. 

Hope this was helpful.

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Thursday, June 27, 2019

Opinion Analysis: Mitchell v. Wisconsin 

by Jason Frey

With the number of licensed Americans ever rising, states are taking action to deter drunk-driving and prevent needless car crashes. To prosecute drunk drivers, states must prove that a driver’s blood alcohol content exceeded the legal limit of 0.08. Since field-administered breath tests are not allowed as evidence in court, police must order a blood draw. Officers are usually required to obtain a warrant before ordering the blood draw, but they don’t have to when they suspect that an unconscious driver is drunk. 

Petitioner Gerald Mitchell was arrested for driving drunk in the Sheboygan area. About ninety minutes later, while Mitchell was unconscious, officers drew his blood and discovered that his BAC was 0.222%. Mitchell argues that the officers violated his 4th Amendment protections by drawing his blood without consent. Plus, two other recent cases, McNeely and Birchfield, hold that while a driver is unconscious, it is unconstitutional to order a blood draw without a warrant and to impose criminal penalties on the driver for refusing to consent. The Wisconsin Supreme Court disagreed with Mitchell and upheld the constitutionality of the blood test. 

On Thursday morning, with Justice Alito writing the plurality opinion, the Supreme Court overturned the state supreme court’s decision and remanded the case for further consideration. But this isn’t really a victory for Mitchell, since the Court also upheld the constitutionality of Wisconsin’s implied-consent law under what’s called the exigent-circumstances doctrine. 

Using Schmerber and McNeely, Justice Alito explained that there is sometimes a “compelling need” for blood tests (when a breath test won’t do) and “no time to secure a warrant,” and these factors together create an exigent circumstance. Justice Sotomayor disagrees, arguing that Wisconsin never claimed there was an exigent circumstance in this case. After all, it takes only about fifteen minutes to secure a warrant from a magistrate over the phone. 

Responding to Sotomayor’s dissent, Alito countered that it is within the Court’s power to take a broader view than just what was presented in the case’s question—a categorical view. He then expressed his concerns with requiring a warrant in all search situations. “A driver so drunk as to lose consciousness is quite likely to crash, especially if he passes out before managing to park,” wrote Alito. At the accident scene, officers may have to apply first aid, redirect traffic, preserve evidence, and contend with their own medical injuries. They should not have to choose between getting a warrant and handling an accident, and “this is just the kind of scenario for which the exigency rule was born.” 

I have trouble believing that getting a warrant is such a burden, as they can be issued in a short timeframe. And in emergency situations, shouldn’t we take all precautions to protect individual rights lest they be discarded in the name of security?

After looking at the three criteria that govern this type of search (general reasonableness, exceptions to the warrant requirement, and practicality), I find that none are sufficient to disregard the need for a warrant. First, I don’t think that in weighing the security of the individual with the state’s interests, it is generally reasonable to order a search without a warrant, for blood draws severely intrude upon a person’s privacy. Next, a categorical exigency rule should not apply here; according to Birchfield, just because a driver’s BAC is decreasing constantly does not mean that there is enough of an exigent circumstance to draw blood without a warrant. And, as mentioned before, it can’t be that onerous for officers to wait fifteen minutes to obtain a warrant. 

Today’s decision declares that a Mitchell situation is generally an exigent circumstance. There are certain exceptions to this rule, though, which is why Justice Thomas dissented (in part) to call for a clearer one. All in all, the  Court’s decision isn’t shocking, since overturning Wisconsin’s statute would have had consequences for implied consent statutes in every state.

Chisholm Was Wrong: A Response to Curtis Herbert 

By Will Foster

In a recent post on this blog, Curtis Herbert responded to the Supreme Court’s ruling in Franchise Tax Board v. Hyatt in part by arguing that Chisholm v. Georgia (1793) was correctly decided — contrary to the assertion of Justice Thomas’s majority opinion in Franchise Tax Board. I disagree with Curtis’s view on Chisholm, for the reasons I’ll set out here. 

Chisholm, decided soon after the Constitution’s ratification, concerned whether a state could, without its consent, be sued by a citizen of another state. In a 4-1 ruling, the Supreme Court allowed such lawsuits. A public backlash against the decision quickly resulted in the adoption of the 11th Amendment in 1795, which stated that “[t]he judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.” 

Curtis’s position is definitely a compelling reading of the pre-11th Amendment constitutional text, which explains why his view was adopted by four of the five justices in Chisholm. The unamended Constitution stated in Article III, Section 2 that the federal “Judicial Power” extended to, among other things, “Controversies … between a State and Citizens of another State.” The majority in Chisholm believed this language meant that citizens of one state could sue a different state in federal court, since such a lawsuit would obviously be a controversy “between a State and Citizens of another State.” 

However, this language is plausibly read to mean that controversies between a state and citizens of another state, where they existed, would be under the jurisdiction of federal courts, not necessarily to bring into existence new types of controversies. And under the doctrine of sovereign immunity, lawsuits against non-consenting governments were traditionally not considered legitimate cases or controversies. As Alexander Hamilton explained in Federalist No. 81, cited in Franchise Tax Board, “It is inherent in the nature of sovereignty not to be amenable to the suit of an individual WITHOUT ITS CONSENT. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union.”

Although some ratification-era commentators suggested that the adoption of Article III, Section 2 would change this situation, the contrary understanding — that states would retain their sovereign immunity — appears to have been more prominent, at least among Federalists (those who supported ratifying the Constitution). As James Madison stated at the Virginia Ratifying Convention (quoted in Franchise Tax Board): “[A federal court’s] jurisdiction in controversies between a state and citizens of another state is much objected to, and perhaps without reason. It is not in the power of individuals to call any state into court. The only operation it can have, is that, if a state should wish to bring a suit against a citizen, it must be brought before the federal court.” 

In fact, the convention in New York explicitly ratified the Constitution based on this understanding. New York’s ratification resolution included a list of interpretative understandings, ratifying on the condition that “the explanations aforesaid are consistent with the said Constitution.” One of these explanations was “[t]hat the judicial power of the United States, in cases in which a state may be a party, does not extend … to authorize any suit by any person against a state.” 

To be sure, sovereign immunity is an extremely difficult and confusing topic, one I’m still struggling to wrap my head around. (For example, if the federal and state governments can’t be sued unless they consent, how come lawsuits against governments and their officials — seeking, say, injunctive relief against an allegedly unconstitutional policy — are so common?) 

I offer no opinion here on whether Franchise Tax Board was correctly decided because, quite frankly, I have no idea whether it was correctly decided. But I do feel fairly confident in this: Chisholm was wrongly decided, and the Supreme Court was right to say as much in Franchise Tax Board

Monday, June 24, 2019

Iancu v. Brunetti Opinion Summary

by Anna Salvatore

Twice in the past two years, the Supreme Court has invalidated provisions of the federal trademark statute. It first did so in Matal v. Tam (2017), when an Asian-American rock group called the Slants sought to register their band name with the U.S. Trademark Office. The band was barred from registering because the trademark statute (known as the Lanham Act) prohibits marks that “disparage” any person or group, and the term “slants” is a slur to disparage Asians. The Supreme Court struck down the Disparagement Clause because “the government [had] singled out a subset of messages for disfavor based on the views expressed,” and viewpoint-based discrimination is banned by the First Amendment.

Today, the justices struck down a neighboring provision of the Lanham Act in Iancu v. Brunetti (2019). They held that the Act’s prohibition of “immoral” or “scandalous” trademarks violates the First Amendment for the same reason as above: the provision engages in viewpoint discrimination.

As I wrote about in JanuaryBrunetti is an unusually fun case for the Supreme Court. The respondent here isn’t a conglomerate or federal agency official, but an anti-establishment artist named Erik Brunetti who has long tried to trademark his “FUCT” streetwear brand.

Here are excerpts from Justice Kagan’s opinion: 

When is expressive material “immoral”? According to a standard [dictionary] definition, when it is “inconsistent with rectitude, purity, or good morals”; “wicked”; or “vicious.” Or again, when it is “opposed to or violating morality”; or “morally evil.” So the Lanham Act permits registration of marks that champion society’s sense of rectitude and morality, but not marks that denigrate those concepts. And when is such material “scandalous”? Says a typical definition, when it “giv[es] offense to the conscience or moral feelings”; “excite[s] reprobation”; or “call[s] out condemnation.” Or again, when it is “shocking to the sense of truth, decency, or propriety”; “disgraceful”; “offensive”; or “disreputable.” So the Lanham Act allows registration of marks when their messages accord with, but not when their messages defy, society’s sense of decency or propriety.

Put the pair of overlapping terms together and the statute, on its face, distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation. The statute favors the former, and disfavors the latter. “Love rules”? “Always be good”? Registration follows. “Hate rules”? “Always be cruel”? Not according to the Lanham Act’s “immoral or scandalous” bar.

The facial viewpoint bias in the law results in viewpoint-discriminatory application. Recall that the PTO itself describes the “immoral or scandalous” criterion using much the same language as in the dictionary definitions recited above. The PTO, for example, asks whether the public would view the mark as “shocking to the sense of truth, decency, or propriety”; “calling out for condemnation”; “offensive”; or “disreputable.” Using those guideposts, the PTO has refused to register marks communicating “immoral” or “scandalous” views about (among other things) drug use, religion, and terrorism. But all the while, it has approved registration of marks expressing more accepted views on the same topics.

All nine justices agreed that the ban on “immoral” trademarks was antithetical to the First Amendment.

Three justices filed partial dissents, though — Roberts, Breyer, and Sotomayor — arguing that the Court should not have invalidated the ban on “scandalous” trademarks. They explained that the word “scandalous”  may not refer to marks with offensive ideas, but to marks that “address only obscenity, vulgarity, and profanity.” Since there are two plausible readings of the word, the Court should choose the interpretation that preserves the statute rather than overturns it.

The majority rejected this idea, calling it “statutory surgery”:

This Court, of course, may interpret “ambiguous statutory language” to “avoid serious constitutional doubts.” FCC v. Fox Television Stations, Inc., 556 U. S. 502, 516 (2009). But that canon of construction applies only when ambiguity exists. “We will not rewrite a law to conform it to constitutional requirements.” United States v. Stevens, 559 U. S. 460, 481 (2010) (internal quotation marks and alteration omitted). So even assuming the Government’s reading would eliminate First Amendment problems, we may adopt it only if we can see it in the statutory language. And we cannot. The “immoral or scandalous” bar stretches far beyond the Government’s proposed construction. The statute as written does not draw the line at lewd, sexually explicit, or profane marks. Nor does it refer only to marks whose “mode of expression,” independent of viewpoint, is particularly offensive. Brief for Petitioner 28 (internal quotation marks omitted). It covers the universe of immoral or scandalous—or (to use some PTO synonyms) offensive or disreputable—material. Whether or not lewd or profane. Whether the scandal and immorality comes from mode or instead from viewpoint. To cut the statute off where the Government urges is not to interpret the statute Congress enacted, but to fashion a new one.*

The main takeaway is that the government can no longer make values judgments about which trademark applications are “immoral” or “scandalous.” The justices did give Congress the option, though, of banning trademarks that are straight-up vulgar in the future.

Thursday, June 20, 2019

by Anna Salvatore

With about a week left in its term, the Supreme Court released major decisions today on the Establishment Clause and the administrative state.

In the former case, American Legion v. American Humanist Assn., the Court allowed a 40-foot-tall cross to remain on Maryland public property. According to the majority opinion, the cross has gained a secular meaning because it memorializes World War I dead, and removing it would show hostility rather than neutrality towards religion. The bottom line is that it does not violate the Establishment Clause of the First Amendment. Writing for the majority, Justice Alito called the Lemon test “ambitious,” as a teacher might call her unruly sixth-graders “ambitious,” and implied that the test — which looks to the purpose of religious symbols to determine whether they violate the Establishment Clause — is on its last legs.

In the coming days, Jackson Foster will write a more in-depth analysis of American Legion. 

Today’s other big-shot opinion was Gundy v. United States. At the core of Gundy is the nondelegation doctrine, which forbids Congress from lending its legislative power to other government branches. The Supreme Court clarified this rule in 1928, adding that when Congress does allow administrative agencies to regulate, Congress must also give agencies an “intelligible principle” with which to direct their regulations.

The question in Gundy was whether Congress impermissibly delegated power to the Attorney General in the Sex Offender Registration and Notification Act. The answer, according to Justice Kagan’s majority opinion, is “No.” She was joined by Justices Ginsburg, Breyer, and Sotomayor, while Justice Alito concurred in judgment only.

This case is important not only because it affects thousands of sex offenders, but also because of its broader implications for the administrative state. If the Supreme Court had discarded the “intelligible principle” rule today, then administrative agencies would’ve lost much of their power to issue regulations. But the Court did not take this step, to Justice Gorsuch’s chagrin. He dissented with Justices Thomas and Alito to criticize the way the Court has applied the “intelligible principle” rule and to emphasize the importance of confining legislative powers to the legislature. Here’s an excerpt below:

Restricting the task of legislating to one branch characterized by difficult and deliberative processes was also designed to promote fair notice and the rule of law, ensuring the people would be subject to a relatively stable and predictable set of rules.27 And by directing that legislating be done only by elected representatives in a public process, the Constitution sought to ensure that the lines of accountability would be clear: The sovereign peo- ple would know, without ambiguity, whom to hold ac- countable for the laws they would have to follow

The dissenting trio’s position is radical — it strikes at the marrow of the administrative state. Law professors are now speculating about whether (or when) Gorsuch’s vision will be achieved. Professor Nicholas Bagley of UMich frets that when Justice Kavanaugh eventually participates in these cases (which he didn’t today), the intelligible principle rule will be toast. Professor Adrian Vermeule of Harvard Law is unworried. He feels that if the Court had really wanted to undo the administrative state, it would have done so with today’s “low-stakes statute.”

It’s all speculation for now.

Tuesday, June 18, 2019

by Anna Salvatore

The Supreme Court released four decisions yesterday on issues ranging from gerrymandering to uranium mining.

In one of the decisions, Gamble v. United States, the seven-justice majority held that you can be convicted separately under state and federal law for the same conduct.

The Double Jeopardy Clause protects you from being punished twice for the same “offence.” Writing for the majority, Justice Alito cites a 1730 dictionary to show that “offence” meant “the Violation of breaking of a law” at the time of ratification. He proceeds through a syllogism: offenses are defined by laws, sovereigns define the laws, and so when there are two sovereigns, there are two different offenses.

The next part of the opinion is a lengthy historical analysis of old English cases and treatises. To Justice Alito the most reliable and relevant case is Gage v. Bulkeley (1774), in which the Lord Chancellor Hardwicke held that foreign judgments are not binding in English courts. Other cases Justice Alito deemed either incomplete or harmful to Gamble’s position. “All told,” he wrote, “this evidence does not establish that those who ratified the Fifth Amendment took it to bar successive prosecutions under different sovereigns’ laws — much less do so with enough force to break a chain of precedent linking dozens of cases over 170 years.” As is popular among conservative judges, Justice Alito dabbles in original public meaning originalism — i.e., he considers how the public understood the Constitution at ratification. And what about “original intent,” the ugly eldest child of originalism? Justice Alito rejects her on page four, arguing that a drafter’s private thoughts have no bearing on the text’s final meaning.

Gamble claims that the number of federal laws is exploding, which in turn increases the risk that federal and state laws will overlap. He feels this pressing new problem is enough to overturn precedent. Alas, writes Justice Alito, “[Gamble’s] argument obviously assumes that the dual-sovereignty doctrine was legal error from the start. So the argument is only as strong as Gamble’s argument about the original understanding of double jeopardy rights, an argument that we have found wanting.” 

Next up is Justice Thomas’s concurrence, which can only be described as peak Thomas — for although he agrees with the majority’s decision to uphold precedent, he spends the next seventeen pages ripping into modern stare decisis. “The Court currently views stare decisis as a ‘principle of policy,'” he writes, “that balances several factors to decide whether the scales tip in favor of overruling precedent.” To Justice Thomas, this approach was perfectly acceptable in English common-law courts. But the Supreme Court is not such a court, because the Constitution charged it with “applying a limited body of written laws articulating… legal principles.” Justice Thomas proposes, then, that if the Supreme Court encounters a clearly incorrect decision, it should overturn the decision regardless of reliance interests. Don’t be surprised that he is saying this — he says it often — but understand that his proposal is radical, and that there will be major consequences if the Court subscribes.

His first footnote is also worth reading.

As the Court suggests, Congress is responsible for the proliferation of duplicative prosecutions for the same offenses by the States and the Federal Government. By legislating beyond its limited powers, Congress has taken from the People authority that they never gave. U. S. Const., Art. I, §8; The Federalist No. 22, p. 152 (C. Rossiter ed. 1961) (“all legitimate authority” derives from “the consent of the people”). And the Court has been complicit by blessing this questionable expansion of the Commerce Clause (Gonzales v. Raich) (THOMAS, J., dissenting). Indeed, it seems possible that much of Title 18, among other parts of the U. S. Code, is premised on the Court’s incorrect interpretation of the Commerce Clause and is thus an incursion into the States’ general criminal jurisdiction and an imposition on the People’s liberty.

Justice Ginsburg and Justice Gorsuch wrote solo dissents disputing the idea that the states and the federal government are separate sovereigns for Double Jeopardy purposes. They each mention Blockburger v. United States (1932), where the Court said that when one criminal act violates two different statutory provisions, “the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” The Blockburger test sounds convincing, but it applies to laws within one sovereign, and it’s unclear whether it can also apply to similar state and federal laws.

They have a broader federalism argument, too. Justice Gorsuch writes that state and federal governments were divided to protect our liberty, and that “today’s Court invokes federalism not to protect individual liberty but to threaten it, allowing two governments to achieve together an objective denied to each.” Feel free to look elsewhere if you want a more a substantive account of this. 

Finally, disagreeing with the majority opinion’s historical analysis, Justice Gorsuch insists that the original meaning of the Double Jeopardy Clause barred successive prosecutions.

Viewed from the perspective of an ordinary reader of the Fifth Amendment, whether at the time of its adoption or in our own time, none of this can come as a surprise. Imagine trying to explain the Court’s separate sovereigns rule to a criminal defendant, then or now. Yes, you were sentenced to state prison for being a felon in possession of a firearm. And don’t worry—the State can’t prosecute you again. But a federal prosecutor can send you to prison again for exactly the same thing. What’s more, that federal prosecutor may work hand-in-hand with the same state prosecutor who already went after you. They can share evidence and discuss what worked and what didn’t the first time around. And the federal prosecutor can pursue you even if you were acquitted in the state case. None of that offends the Constitution’s plain words protecting a person from being placed “twice . . . in jeopardy of life or limb” for “the same offence.” Really?

And that’s all I’ve got.

Thursday, June 13, 2019

Can There Be A Middle Ground on Abortion at the Supreme Court?

By Will Foster

The Supreme Court considered two provisions of Indiana law in Box v. Planned Parenthood a few weeks ago. The Court upheld Indiana’s fetal remains disposal law, yet it declined to revive a recently nullified provision that prohibits abortions based on fetal race, sex, or disability.

In Box, the Supreme Court delivered a sensible opinion that reaffirmed states’ latitude to promote respect for human life while avoiding, at least for now, the more divisive issue of selective-abortion bans, which have been passed or proposed by multiple state legislatures in the last several years.

The Court’s opinion was unsigned, with only Justices Sotomayor and Ginsburg dissenting. Justice Thomas also filed a lengthy concurrence that I will discuss more below.

The provision the Court upheld requires that an abortion clinic or healthcare facility “having possession of an aborted fetus shall provide for the final disposition of the aborted fetus.” The remains “must be interred or cremated,” which can include “simultaneous cremation.” Indiana Code has a similar provision for miscarried fetuses. Alternatively, a pregnant woman can choose to handle the remains herself.

The Seventh Circuit found that the fetal disposal law lacked a rational basis and struck it down. As the Supreme Court notes in Box, this reasoning directly contradicts the Court’s holding in Akron v. Akron Center for Reproductive Health (1983) that states have a “legitimate interest in proper disposal of fetal remains.” And as Seventh Circuit Judge Frank Easterbrook argued in dissent from rehearing, “The panel has held invalid a statute that would be sustained had it concerned the remains of cats or gerbils.”

Justice Ginsburg’s dissent tries to salvage the Seventh Circuit’s judgment, primarily by arguing that the lower court should have applied the undue burden standard rather than the weaker rational basis standard. She found it useless to reverse a judgment that should have been upheld on undue burden grounds.

The problem with Justice Ginsburg’s argument is that it’s unclear whether Indiana’s law imposes an undue burden under Planned Parenthood v. Casey (1992) — i.e., that it has “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Specifically, Ginsburg suggests that “the cost of, and trauma potentially induced by, a post-procedure requirement may well constitute an undue burden.” It is undoubtedly true that the requirement imposes some burden, but that doesn’t justify her assertion that applying the undue burden standard would likely yield the same result of overturning the law. Indeed, as the plurality opinion in Casey explained: “The fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it.” To the contrary, “What is at stake is the woman’s right to make the ultimate decision, not a right to be insulated from all others in doing so. Regulations which do no more than create a structural mechanism by which the State … may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exercise of the right to choose.”

Rather controversially, Justice Ginsburg’s Box dissent also disputed Justice Thomas’s use of the term “mother” when discussing the fetal remains statute. Yet Justice Ginsburg kept silent on perhaps the most noteworthy argument made by a justice in Box: Justice Thomas’s assertion that “[e]nshrining a constitutional right to an abortion based solely on the race, sex, or disability of an unborn child, as Planned Parenthood advocates, would constitutionalize the views of the 20th-century eugenics movement.” Presumably she felt that, in light of the Court’s denial of certiorari on that question, it was best to wait for future opportunities to address the question after proper briefing and argument.

Thomas’s 20-page opinion dealt mainly with Indiana’s Sex Selective and Disability Abortion Ban, which some on the left have noted “appears designed to troll liberals.” After all, the law states that “[a] person may not intentionally perform or attempt to perform an abortion … if the person knows that the pregnant woman is seeking” an abortion solely on the basis of the race, sex, or non-lethal disability of the child. Opposing this law puts pro-choice organizations in a politically difficult position, as it practically asks for unflattering headlines.

Thomas spent the better part of his opinion surveying eugenics’ history and its relationship to abortion and birth control. For example, he cited a 1934 speech to the Eugenics Society in London bemoaning “the relatively high birth-rate of the poorest third of the population” and “the serious rate of racial deterioration which it implied,” and arguing that “this birth-rate … would fall rapidly if artificial abortion were made legal.” Another example Justice Thomas gave is from longtime Planned Parenthood President Alan Guttmacher in 1970, who praised “fantastic” progress in expanding abortion access and stated that “[w]e’re now concerned more with the quality of population than the quantity.” Although Thomas clarified that there is “undoubtedly … a moral difference between birth control and abortion,” he believed evidence of birth control’s eugenic potential was also relevant because some “arguments about the eugenic potential for birth control apply with even greater force to abortion.”

I am not a big fan of seeing policy arguments in Supreme Court opinions, and Justice Thomas’s opinion is needlessly incendiary. Still, I think it raises important questions that our society can and must address, regardless of whether we ultimately end up agreeing with Justice Thomas’s view. And while it is certainly a polemic, it is more even-handed than you might expect from reading headlines about it on the Internet. For example, when discussing Planned Parenthood founder Margaret Sanger, who advocated some eugenic ideas, Justice Thomas notes that “[d]efenders of Sanger point out that W.E.B. DuBois and other black leaders supported [her work] and argue that her writings should not be read to imply a racial bias” — and Thomas links to a relevant page on Planned Parenthood’s website.

I will not wade into the debate over whether Thomas accurately represented the historical evidence — many scholars, on both sides of the issue, have filled that role. In any event, Justice Thomas is far from the first scholar to raise concerns about abortion and eugenics. For example, a 2016 article in the AMA Journal of Ethics suggested there might be a distinction between “historical eugenics” (large-scale enforced eugenics) and “contemporary eugenics,” which is not legally mandated but rather “operat[es] at the level of individuals and families.” Therefore, even if the government is not requiring eugenics, “the practices of reproductive medicine and the context under which reproductive decisions are made, particularly with respect to problematic cultural attitudes towards disability, can undermine the capacity for free choice and can promote ‘eugenic outcomes.’”

Now, with respect to the other categories of discrimination that Indiana’s law prohibits, besides disability: I’m doubtful that race- or gender-selective abortions, if they are even a significant problem in the United States, will be meaningfully curtailed by laws like Indiana’s. Women who seek these kinds of abortions can lie to their doctors about the reason.

Yet Justice Thomas’s discussion of the relationship between race and abortion does shine a welcome spotlight on the fact that abortion is much more common among blacks than whites in the U.S. Disturbingly, as Thomas explains, “[t]he reported nationwide abortion ratio—the number of abortions per 1,000 live births—among black women is nearly 3.5 times the ratio for white women,” and “there are areas of New York City in which black children are more likely to be aborted than they are to be born alive—and are up to eight times more likely to be aborted than white children in the same area.” Why does this disparity exist? I am of course not a sociologist, but I think that it’s yet another manifestation of how long-term systemic racism in America has negatively impacted black communities. The real problem is “eugenic outcomes,” not eugenic intentions (as Thomas appears to realize), and the solution should reflect that — focusing on reducing poverty rather than restricting women’s rights.

It follows from all this that states may have a compelling interest in protecting the unborn from discrimination. But I agree with the Court that it was proper to deny the case at this time. Although Justice Thomas argues that upholding laws like Indiana’s could be consistent with Casey, I think it’s obvious that such a law, even if not technically foreclosed by Casey and its progeny, strikes at the very heart and spirit of the RoeCasey right to abortion.

Indiana’s restriction applies even in the earliest stages of pregnancy, so a woman who wishes to get an abortion solely because of her potential child’s disability, sex, or race can never do so. Indiana creatively defended the law by saying that the right to abortion is the right to decide whether to have a child (a “binary choice”), not whether to have a particular child. However, it’s conceivable that for at least some women, Indiana’s law could essentially eliminate even the binary right. For example, if a black woman did not want to have any child because she worried the child would be racially oppressed in society, she would probably fall under the law’s definition of someone seeking an abortion solely because of the child’s race. Plus, the Supreme Court’s descriptions of the abortion right suggest that at its core is female autonomy, at least early in pregnancy — which naturally implies that the government doesn’t get to tell someone that her reasons aren’t good enough.

The notion that “the Constitution categorically protects a woman’s right to abort her child based solely on the child’s race, sex, or disability,” as Justice Thomas phrases it, does indeed sound quite troubling when so stated. Nevertheless, in Planned Parenthood’s defense, this may simply be yet another example of how many rights have some applications that are deeply unpalatable, even revolting, yet are still protected because of our respect for the right overall. This is often most true in criminal procedure cases, such as those involving the constitutional rights of terrorists or serial rapists. It can also be true in First Amendment cases. For example, “the right of sexual predators to use social networking websites that minors are on” may sound somewhat appalling, yet the Supreme Court unanimously upheld that right in 2017 as being an element of the First Amendment’s protection.

Justice Thomas notes that Casey did not deal with selective abortion statutes, and therefore suggests that the Supreme Court could uphold Indiana’s statute without disturbing Casey as precedent. Maybe this is true as a formal matter. As Justice Thomas explains, Casey “addressed the constitutionality of only five provisions of the Pennsylvania Abortion Control Act of 1982 that were said to burden the supposed constitutional right to an abortion. None of those provisions prohibited abortions based solely on race, sex, or disability.”

Still, I think upholding such a statute would gut a core portion of Casey. Thomas’s approach here, following in the footsteps of Judge Easterbrook’s aforementioned Seventh Circuit opinion, essentially seems to confine Casey to its facts. Thomas seems to suggest that even lower court judges like Easterbrook have the power to do this. I am skeptical — I suppose the answer depends on one’s theory of precedent, however, so it’s not surprising that Thomas (who has a pretty weak view of stare decisis) would believe Casey can be so confined.

Regardless, Thomas makes clear that although he agreed with the majority that it should not consider the issue of selective abortions until it had been more fully litigated in the lower courts, he believes that the Court must consider the question in the future.

But just because the Court denied certiorari on the selective abortion ban does not mean it will avoid contentious abortion cases. Only four votes are needed to grant cert, and the four more liberal justices will almost certainly vote to hear June Medical Services v. Gee, which challenges Louisiana’s requirement that abortion doctors have admitting privileges at a local hospital. (The Louisiana law appears to be virtually indistinguishable from a Texas law the Court struck down in Whole Woman’s Health v. Hellerstedt (2016).) The Court may wish to scrutinize regulations that affect first-trimester abortions while giving greater deference to regulations that only affect abortions in the middle of the second trimester or later. This would allow the justices to reconcile some potential conflicts between Whole Woman’s Health and Gonzales v. Carhart (2007), which upheld the federal Partial-Birth Abortion Ban Act of 2003. This route would also align with public opinion — according to Gallup, support for abortion rights is high for the first trimester of pregnancy but drops precipitously in the second trimester. Obviously the Court should not be influenced by public opinion when deciding cases, but there is nothing that prevents the Court from doing so when choosing which cases to hear.

The Court may have an opportunity to explore issues related to later-term abortions within the next year if it chooses to hear Marshall v. West Alabama Women’s Center. That petition concerns whether a state may require that fetal death be achieved before (as opposed to during) a rather gruesome second-trimester abortion procedure. Upholding Alabama’s law might require abandoning or at least weakening the RoeCasey viability doctrine, which some have interpreted as completely banning the imposition of any “substantial obstacle” to abortion at any time before fetal viability (now around 22-24 weeks).

In Box, the Supreme Court struck a smart compromise between respecting states’ interest in promoting respect for human life and upholding women’s right to choose. It remains to be seen whether this spirit of compromise will continue. I think such continuance is probably the best course of action for now, regardless of where one stands on abortion.