Tag: Supreme Court

Categories
Law

How the end of campaign finance limits paved the way for Donald Trump’s presidential bid

The presidential campaign now underway is making history for at least one reason besides the prospect of the first woman or a star of reality TV becoming the nation’s chief executive.

The campaign also marks the coming online of a series of rulings by the Supreme Court, beginning with the court’s decision in Citizens United six years ago, that enable groups aligned with candidates to accept unlimited donations.

Hillary Clinton has raised a total of $296 million, of which 29% has come from super PACs allied with her, as of March 31. For all her financial fortitude, the money impairs Clinton’s inability to gain traction among Democrats (and, possibly, in a general election, among independents) who harbor antipathy toward the establishment, which all those super PAC dollars represent.

Bernie Sanders, Clinton’s Democratic rival, disavows support from super PACs, though some outside groups still support him. Donald Trump, the GOP nominee, also has criticized candidates who get support from super PACs though he has said that Republicans will need to raise $1 billion to compete against Clinton.

Writing in February in The Atlantic, Ron Brownstein noted that both Trump and Sanders address the yearnings of those who feel shut out of the political process. Among people who were likely to vote in the Republican primary, nearly 87% preferred Trump if they agreed with the statement that people like them have no say about what the government does, according to a survey in December and January by the RAND Corporation.

That brings us back to the Supreme Court, and specifically to a ruling two years ago in McCutcheon v. Federal Election Commission. The case came before the court on an appeal by Shaun McCutcheon, a businessman and electrical engineer from Alabama, who in the 2011-2012 election cycle contributed a total of $33,088 to 16 different federal candidates as permitted by law.

McCutcheon alleged on appeal that he wished to contribute $1,776 to each of a dozen additional candidates but was barred from doing so by an aggregate limit of $48,600 that he challenged as unconstitutional under the First Amendment.

He also asserted that he contributed a total of $27,328 to several political committees not associated with any particular candidate and that he wished to contribute additional amounts to the Republican National Committee and other groups but was blocked by an aggregate limit on contributions to political committees, again, McCutcheon charged, in violation of the First Amendment.

The RNC and McCutcheon filed suit in the U.S. District Court for the District of Columbia, challenging the constitutionality of the aggregate limits.

There a three-judge panel rejected the contention, characterizing the base limits and the aggregate limits “as a coherent system rather than merely a collection of individual limits stacking prophylaxis upon prophylaxis.”

Assuming that the base limits served the government’s interest in preventing corruption – an interest that could survive scrutiny under the First Amendment – the aggregate limits also survived scrutiny because they prevented an end-around of the base limits.

A majority of the Supreme Court, where McCutcheon and the RNC appealed next (federal law allows for direct appeals in such cases) disagreed. Chief Justice John Roberts, writing for the majority, reasoned that the decision by Congress to limit to $5,200 contributions to any one candidate made sense because it reflected a judgment by legislators that giving a candidate more might risk corruption, as in giving or receiving something in return for something else.

But the aggregate limit served no such purpose, according to the majority. “If there is no corruption concern in giving nine candidates up to $5,200 each, it is difficult to understand how a tenth candidate can be regarded as corruptible if given $1,801, and all others corruptible if given a dime,” asserted Roberts, who continued:

The Government has a strong interest, no less critical to our democratic system, in combatting corruption and its appearance. We have, however, held that this interest must be limited to a specific kind of corruption – quid pro quo corruption – in order to ensure that the Government’s efforts do not have the effect of restricting the First Amendment right of citizens to choose who shall govern them.

But the majority defined corruption too narrowly, argued Justice Breyer, who filed a dissenting opinion on behalf of himself and Justices Ginsburg, Sotomayor and Kagan. The First Amendment, he explained, “advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.” (emphasis in original)

Viewed that way, corruption “breaks the constitutionally necessary ‘chain of communication’ between the people and their representatives,” Justice Breyer wrote. “Where enough money calls the tune, the general public will not be heard.”

And then the dissent anticipated the phenomenon of voters feeling shut out of their democracy that can give rise to a figure like Trump. According to Justice Breyer:

“The ‘appearance of corruption’ can make matters worse. It can lead the public to believe that its efforts to communicate with its representatives or to help sway public opinion have little purpose. And a cynical public can lose interest in political participation altogether.”

As the minority saw it, regulation of campaign finance rests on a rationale that’s broader than the majority’s concern with public officials who might be tempted to sell their votes. Such laws “are rooted in the constitutional effort to create a democracy responsive to the people – a government where laws reflect the very thoughts, views, ideas, and sentiments, the expression of which the First Amendment protects,” Justice Breyer wrote.

In short, the First Amendment protects speech but it protects democracy, too. By constraining its view of the amendment, the majority legalized the idea that democracy yields to money which, if you accept the premise, is a form of speech. From there draw a line directly to voters who feel disenfranchised. Trump is not the only candidate who speaks to such voters – Sanders does, too, from the left – but Trump got to many of them first.

Writing on Scotusblog a day after the decision in McCutcheon, Burt Neuborne, a professor of civil liberties at NYU, asserted that promotion of political equality can justify some limits on spending by the very rich.

Preventing corruption, wrote Neuborne, “means the preservation of a democracy where the governed can expect their representatives to decide issues independently, free from economic serfdom to their paymasters. The road to 2016 starts here.”

Categories
Privacy

Spokeo presents the Supreme Court with an opportunity to validate privacy protections for a digital age

The U.S. Supreme Court is slated to hear an appeal this November that deals with a technical question concerning the right to sue but promises to affect significantly our ability to influence the accuracy of information about us that appears online.

The case involves a lawsuit against Spokeo, a people-finder site that aggregates information from social networks, real estate listings and other public sources. The dispute began five years ago when Thomas Robins, a Virginia resident, sued the Pasadena, Calif.-based company for allegedly violating the Fair Credit Reporting Act (FCRA).

According to Robins, Spokeo’s search results showed he held a graduate degree, was affluent, and married with children. None of that was true, he charges. In reality, Robins, then in his mid-50s, was unemployed, single and searching for a job.

Robins asserts that companies use Spokeo’s results to size up applicants for employment. That, Robins claims, undermined his search by presenting him as more educated and wealthier than he happened to be. Which, according to Robins, dissuaded employers from considering him for certain jobs and contributed to his remaining unemployed as well as to anxiety, stress and worry about his allegedly diminished prospects.

Robins, whom Spokeo says did not claim he asked the company to remove the listing or correct the results (you can for your listing, via this form) also charged the company with knowing about shortcomings in the way it gathered information and its failure to follow the FCRA’s mandate that consumer reporting agencies ensure the maximum possible accuracy of reports they generate. That, alleges Robins, entitles him to damages of up to $1,000 for each violation, as provided by the FCRA.

A trial judge in Los Angeles dismissed the case, ruling that Robins failed to allege an injury concrete enough to establish a right to sue—a prerequisite for suing someone in federal court—and that any harms he asserted were insufficiently traceable to Spokeo’s alleged violations.

Robins appealed to the U.S. Court of Appeals for the 9th Circuit, which reversed the trial court and sided with Robins after determining that the violation of the FCRA he charged itself satisfied the injury-in-fact requirement. Spokeo then appealed to the Supreme Court, which last spring agreed to hear the case.

At one level, the appeal presents the justices with a question about the jurisdiction of the federal courts, which the Constitution limits to deciding legal questions that arise out of an actual dispute between real parties. To determine whether such a dispute exists, federal courts apply a three-part test, pursuant to which a plaintiff must be able to show concrete injury, a causal connection between the injury and the challenged actions of the defendant, and a likelihood that the injury will be set right, or redressed, by a favorable decision.

Spokeo, which describes itself as an Internet search engine rather than a consumer reporting agency—a distinction that matters for purposes of determining whether it has obligations under the FCRA—argues on appeal that Congress can give private parties a right to sue for alleged violations of a statute but that right, by itself, does not relieve those parties of the need to show actual injury in order to proceed.

According to Spokeo, the appeals court did not base its decision on an allegation by Robins that he suffered a specific financial loss or missed out on being hired a particular job. Instead, argues Spokeo, the panel looked no further than the alleged violation of the FCRA. “The Ninth Circuit recognized that its analysis had the practical effect of turning the three-part test for… standing into a single-factor inquiry that was satisfied by the availability of a statutory remedy,” Spokeo asserts in a brief filed in July with the Supreme Court.

The requirement that a plaintiff demonstrate concrete harm “is necessary to prevent the erosion of the Constitution’s fundamental structure,” writes Spokeo, which says the stipulation ensures that courts remain within their role of preventing “actual or imminently threatened injury.” Standing also prevents Congress from “impermissibly delegating” to private parties the duty of the executive branch to enforce the law and protects “individual liberty” from plaintiffs who, in essence, charge violations of the law out of self-interest, the company argues.

Of course, Spokeo has another concern. According to the company, a class action in this case could expose it to “billions of dollars” in damages, based on Robins’ assertion that millions of people could claim to have been on the receiving end of FCRA violations may be eligible to join the lawsuit.

Robins counters that the alleged violation of the statute means that, by definition, he also has suffered pecuniary harm. He “and Spokeo have a legal dispute over a fixed sum of money that turns on whether Spokeo violated Robins’s legal interest under the FCRA,” he writes in a brief filed Aug. 31. “This right to statutory damages is not a ‘bounty’ Robins ‘will receive if the suit is successful.’ (citation omitted). His right to statutory damages arose as soon as Spokeo violated his rights, and the monetary claim is his alone.”

According to Robins, the Supreme Court need look no further than Spokeo’s alleged violation, which is sufficient to establish standing in this case. In short, Congress conferred standing when it gave private parties the right to sue for violations of the FCRA, Robins asserts.

He also notes that three years ago Spokeo agreed to pay $800,000 to settle charges that over a period of two years ending in 2010 it marketed search results to recruiters without adhering to safeguards for credit reporting.

The Obama administration has sided with Robins. “FCRA confers upon [Robins] a legal right to avoid the dissemination of inaccurate personal information about himself under the circumstances presented here,” writes Solicitor General Donald B. Verrilli Jr. in a friend-of-the-court brief filed Sept. 8. “Under this Court’s precedents, a violation of that legal right is an injury sufficient to satisfy Article III requirements, whether or not respondent can identify further consequential harms resulting from the violation.”

But there’s much more at stake than standing say privacy and civil liberties groups. In revising the FCRA in 1969, Congress specifically expressed concern that computerization of personal data could lead to inaccurate credit reports—which by their very nature are derived from data supplied by creditors whose own records may contain errors—to be published widely while leaving consumers without recourse to correct the information or to hold companies that furnish or report such data accountable.

“We are now in a digital era in which data brokers routinely acquire, access, compile, analyze, and sell vast data stores of consumers’ personal information, transactions, and behaviors,” write the Center for Democracy & Technology (CDT), the Electronic Frontier Foundation (EFF), and the New America foundation (New America) in a friend-of-the-court brief filed Sept. 8. “This activity occurs with little regulation or market incentive to ensure that information is accurate, timely, and used in a manner compliant with existing law.”

Robins alleges that unlike a search engine such as Google or Yahoo, Spokeo, in its search results, “draws conclusions, makes predictions, and otherwise makes factual assertions” about the data that tie to a consumer’s financial well being or lifestyle “that do not appear in the public or private data that defendant’s search result draws from.” According to the CDT, EFF and New America:

“While Spokeo’s inaccuracies might initially appear to favor Mr. Robins, they may have in fact damaged his ability to find employment by creating the erroneous impression that he was overqualified for the work he was seeking, that he might be unwilling to relocate for a job due to family commitments, or that his salary demands would exceed what prospective employers were prepared to offer him. The FCRA’s private right of action is the only way Mr. Robins can enforce his rights under the law and redress these inaccuracies. If the FCRA’s requirements are effectively unenforceable, data brokers such as Spokeo have little incentive to follow the law.”

Not surprisingly, a host of companies have weighed in on behalf of Spokeo. According to a brief filed July 9 by Facebook, Google, Twitter, eBay, Netflix and other tech firms that fear liability from class actions alleging “technical statutory violations that are not alleged to ‘have affected the plaintiff’ or harmed anyone.” (citation omitted) Credit reporting agencies, banks, home builders, media companies, and other businesses have raised similar arguments.

The chorus from companies sparked a reply from Patricia Moore, a professor at St. Thomas University School of Law, who wrote recently that “literally hundreds of state and federal statutes create private rights of action to encourage compliance with laws meant to protect consumers, workers, and the environment.”

According to Moore, Spokeo and the companies that are weighing in on its behalf “have conceived a new way to neutralize any statute anywhere that authorizes statutory damages. That is: tar the private right of action… and claim that violation of the statute is ‘technical,’… so not good enough for standing.”

A group of 15 information privacy scholars have sounded a similar point. In a friend-of-the-court brief filed Sept. 4, the group argues that “a broad ruling” in favor of Spokeo would “disrupt established privacy law well beyond the boundaries of the FCRA.”

The scholars cite the Video Privacy Protection Act, a federal law that bars disclosure of the movies someone has rented without his or her consent, and the Wiretap Act, as examples of laws that allow private parties to sue for violations and, in the case of the Wiretap Act, specify statutory damages as an alternative to actual damages, much like the FCRA. According to the scholars, whether in those laws or the FCRA:

“Congress did not ‘create’ injury in any of these statutes. Rather, in each case, it simply recognized privacy injuries-in-fact occurring in new technological contexts, delineated corresponding legal violations, and created private civil rights of action as legal remedies. This it was constitutionally empowered to do. The Court should not second-guess considered legislative judgments about the desirability of affording such remedies.”

Of course, it’s hard to predict whether a majority of the Court will embrace that argument or insist on a showing by Robins of injury beyond the statutory violation, as Spokeo suggests. Or accept the distinction drawn by Spokeo between technical violations and violations generally. It may be, as Moore suggests, a distinction without a difference and calculated solely to allow companies to evade liability.

Or the Court could look to see who was harmed here. Did Robins have more difficulty finding a job thanks to Spokeo’s practices, assuming, that is, the company acted as a consumer reporting agency? What about the anxiety and stress he alleges? If so, what might Robins’ recourse be, if not a lawsuit like the one at issue in this case? And how might the Court feel about people-searches that disseminate inaccuracies? Some of the justices are listed in Spokeo, too.

Categories
Law

Why the clerk in Kentucky who refuses to license same-sex marriages doesn’t have the law on her side

A county clerk in Kentucky who is slated to appear in a federal courtroom Thursday after refusing to license same-sex marriages may have sincerely held beliefs but she doesn’t have the law on her side.

Kim Davis, a self-described Apostolic Christian who in January was elected clerk of Rowan County, a precinct that lies about 135 miles east of Louisville, has been directed by U.S. District Judge David Bunning to explain her actions, which place her at risk of fines or jail time.

In addition to its consequences for same-sex couples who would assert their legal right to marry in Rowan Country, the standoff represents two decades of advocacy that aims to advance a conservative agenda under the pretext of religious freedom.

In Kentucky the dustup began anew Tuesday after Davis declined to issue licenses to two same-sex couples a day after the U.S. Supreme Court let stand a ruling by Bunning that directs Davis to authorize legal marriages presented to her. Davis stopped licensing all marriages following a ruling by the Supreme Court in June that upheld the constitutional right of same-sex couples to marry. Bluegrass State law requires marriage licenses to be signed by a county clerk.

Davis, who also has refused to step down, issued a statement Tuesday in which she described her actions as compelled by faith. “To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience,” Davis wrote. “It is not a light issue for me. It is a Heaven or Hell decision. For me it is a decision of obedience. I have no animosity toward anyone and harbor no ill will.”

Of course, as an elected official, Davis can resign if her beliefs prevent her from discharging duties she swore an oath to uphold. There’s no evidence the state is requiring Davis to hold a particular belief as a condition of public employment.

“The Court must again point out that the act of issuing a marriage license to a same-sex couple merely signifies that the couple has met the legal requirements to marry,” Bunning ruled Aug. 12 when he directed Davis to comply with a directive by Governor Steve Beshear that clerks throughout the state license all legal marriages presented to them. “It is not a sign of moral or religious approval.”

Nor is this a case of the government’s compelling speech in violation of the First Amendment. As Bunning noted, the only speech the state seeks to compel is speech by Davis in the performance of her official duties, which the state can do. Remember, too, that Davis embodies the state when she acts in her capacity as clerk.

A similar problem arises for Davis’ claims to being a conscientious objector. As Jonathan Adler, a professor of constitutional law at Case Western Reserve University explained Wednesday in The Washington Post, referring to Davis:

“Someone who objects to war due to his religious conscience has a right to be a conscientious objector and not serve in the military, even were there to be a draft. But he does not have the right to serve as a military officer, draw a paycheck from the military and then substitute his own personal views of when war is justified for that of the government. The same applies here.”

Finally, Davis seeks the protection of Kentucky’s version of the Religious Freedom Restoration Act, a federal law enacted in 1993 that provides an exemption from legal requirements for religious objectors unless the government can show it has a compelling interest that requires the person to comply with the law.

Despite its co-optation by conservatives, the law represented a bipartisan rejoinder to a ruling by the Supreme Court three years earlier that upheld the authority of the State of Oregon to criminalize possession of peyote without providing an exemption for Native Americans who use the drug for religious purposes.

Since then, as Professor Wendy Brown of UC Berkeley observed in a lecture last July at the London School of Economics, states have adopted their versions of the religious freedom law so that businesses can discriminate against those whom they think are engaged in acts of sin. Think of a bakery whose owners refuse to bake a wedding cake for a same-sex couple.

In a more radical turn, the Supreme Court extended that religious freedom exemption to corporations, when it ruled last year in Burwell v. Hobby Lobby Stores that a for-profit corporation need not comply with a legal mandate that employer-sponsored health plans cover the cost of contraceptives if the corporation’s—yes, the corporation’s—religious beliefs dictate otherwise.

The ruling, which Davis cited at least nine times in her application to the Supreme Court for a stay of Bunning’s order, represents a line of advocacy based on what Brown terms “a jurisprudence of aggrieved power [in which] the assertion of conscience is central in… producing the claimant as a beleaguered minority, requiring protection from the state and from a popular majority.”

Davis has yet to show how her actions, which, after all, represent state action, qualify her for an exemption under Kentucky’s religious freedom law. Bakers who decline to bake wedding cakes for same-sex couples have not taken an oath to uphold the law of the land.

That’s not to suggest Davis is not free to argue that the religious freedom law allows her to avoid issuing licenses to same-sex couples. She can do that on appeal while discharging her duties in the meantime.

No matter what transpires, the incident shows the reach of the jurisprudence of religious freedom. “Somehow the separation of church and state has come to mean blocking the state from protecting the civil rights of citizens and forcing it to support—and pay for—sectarianism, bigotry, superstition and bullying,” Katha Pollitt wrote last year in The Nation. “I really doubt this is what Thomas Jefferson had in mind.”

Categories
Law

Kentucky clerk’s appeal of same-sex marriage ruling highlights the reach of Hobby Lobby

The signature of Barbara Fiala appears on my driver’s license. But I have no idea what she thinks of my fitness to operate a motor vehicle in New York State. And who is Barbara Fiala anyway?

As it happens, Ms. Fiala is the former state commissioner of motor vehicles. I Googled her upon reading about an application filed Saturday by Kim Davis with the U.S. Supreme Court. Davis is asking the justices to stay a court order that directs her to issue licenses sought by four couples, including two of the same sex, to marry in Rowan County, Kentucky, where Davis holds the office of clerk, an elected post.

The litigation has its origins in the events of June 26, when, within hours of a ruling by the court that upheld the right of same-sex couples to marry, Governor Steve Beshear directed clerks of counties throughout the Bluegrass State to license the marriages of same-sex couples.

The directive did not sit well with Davis, an Apostolic Christian who believes that marriage represents a union between one man and one woman. Kentucky requires that marriage licenses be signed by a county clerk, an act that Davis charges would violate her faith in applications by same-sex couples.

Davis improvised a way around the directive: She would refrain from issuing any marriage licenses. The betrothed sued, citing the governor’s decree. Judge David Bunning of the U.S. district court in Ashland sided with the couples but postponed the effective data of his ruling until this Monday to give Davis time to appeal. On Wednesday, the U.S. Court of Appeals for the 6th Circuit denied Davis’ request for a stay.

The requirement that clerks affix their names to marriage licenses would constitute a “searing act of personal validation [that] would forever, and irreversibly, echo in her conscience—and, if it happened, there is no absolution or correction that any earthly court can provide to rectify it,” Davis charged in papers filed with Justice Kagan, who oversees emergency appeals from Kentucky.

“A stay of the injunction will halt the irreversible implications on Davis’ conscience while this case undergoes appellate review, especially since multiple less restrictive alternatives are available that do not substantially burden Davis (or the Plaintiffs),” Davis added.

The application characterizes the need for relief as arising from a conflict between the constitutional right of same-sex couples to marry and the free exercise of religion enshrined in the First Amendment. Davis has two choices, she says: affix her name to marriage licenses for same-sex couples, or resign.

Of course, it’s unlikely the governor’s directive or the requirement that clerks in Kentucky affix their names to marriage licenses aim to interfere with religion. A law that punishes conduct just because it is religious is invalid. For example, a municipal ordinance may not prohibit ritual slaughter of chickens while otherwise allowing the slaughter of chickens.

The problem for Davis may be that it’s hard to find such intent behind the implementation of same-sex marriage in Kentucky. State law requires, among other things, that a marriage license bear the name of the county clerk pursuant to whose authority the license was issued. But by its terms the requirement seems to reflect simply that Kentucky has authorized the marriage rather than the beliefs of the clerk whose name happens to appear on the license.

In support of her application, Davis cites the Court’s ruling last year in Burwell v. Hobby Lobby Stores, which found the Affordable Care Act’s mandate that employer-sponsored health plans include coverage for contraceptives to be unlawful because it burdened the exercise of religion by a closely held corporation.

Davis leans on the Hobby Lobby majority’s finding that the health care law’s requirement that employers cover the cost of birth control did not constitute the least restrictive means of serving a compelling government interest, which is a test the court applies to claims the government has engaged in religious discrimination.

As Davis sees it, the state could assure the issuance of marriage licenses to same-sex couples in Rowan County by, among other things, allowing county officials to recuse themselves from issuing licenses based on a sincerely held religious objection, deputizing a clerk from a nearby county to issue marriage licenses to same-sex couples, or revising the form the state uses for marriage licenses to remove the clerk’s name.

“All of the foregoing options, and others, are available to avoid substantially burdening Davis’ personal religious freedom in the wake of the redefinition of marriage in Obergefell,” she writes.

No matter which way the Court rules—the justices can choose not to act and allow Davis to appeal in the normal course, or they can invite a response from the couples who sued—the application highlights one way Hobby Lobby reverberates.

In addition, by framing the problem as an issue of religious conscience rather than one of equal protection of the laws for same-sex couples, Davis advances a line of argument that, as Professor Wendy Brown of UC Berkeley observed in a lecture in July at the London School of Economics, finds its endorsement in the Hobby Lobby ruling.

Categories
Law

Justice Scalia’s dissent in marriage ruling. Really?

The Supreme Court’s ruling legalizing same-sex marriage elicited a colorful dissent from Justice Antonin Scalia, who accused the majority of making policy from the bench.

Scalia charged his fellow justices with overstepping their roles as jurists to wade into a matter of social policy that ought to have been resolved by voters and their elected representatives. According to Scalia,

“This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ ‘reasoned judgment.’ A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

To allow the question of marriage to be resolved “by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation,” Scalia added.

He later quoted from the majority’s opinion, followed by his inserting a rhetorical “Really?” that evokes a recurring sketch by Seth Myers and Amy Poehler on the “Weekend Update” segment of “Saturday Night Live.”

The lament is one that Scalia returns to from time to time. “The core of Justice Scalia’s judicial philosophy is that judges deciding constitutional cases should discover the answers in external sources: judges must not make value choices,” Erwin Chemerinsky a professor of constitutional law and dean at the University of California Irvine, wrote in a law review article in 2000.

Of course, Justice Scalia is entitled to his philosophy. But that doesn’t make it any easier to reconcile his charges in the marriage decision with the occasions on which Justice Scalia has seemed quite willing, from the bench, to interfere in the “democratic process”—his words—from the dissent in the marriage ruling.

I’m thinking here of Bush v. Gore, the 5 to 4 decision by a majority of the Court in 2000 that ended the counting of votes in a hotly contested presidential election and thereby awarded the White House to George W. Bush.

In that case, the majority—of which Scalia was a member (the opinion was signed “by the Court”)—stopped tries to tally votes in Florida after finding that the recount—with its attempt by officials in the Sunshine State to discern the intent of voters from ballots that voting machines had failed to mark clearly—violated the constitutional right of voters not to be treated arbitrarily in a way that could “value one person’s vote over that of another.”

But what the majority in that case refused to do was to allow the recount to continue, despite efforts by the state, under the supervision of its highest court, to do exactly that. As the majority explained:

“Upon due consideration of the difficulties identified to this point, it is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work.”

Scalia and his fellow members of the majority were unwilling to give the state time to do that additional work, despite it’s potential to determine the outcome of an election, which, you might say, is the incarnation of the democratic process that Scalia otherwise venerates.

Writing in The New Yorker on the tenth anniversary of Bush v. Gore, Jeffrey Toobin addressed this contradiction:

“Bush v. Gore would resonate, in any case, because the Court prevented Florida from determining, as best it could, whether Gore or Bush really won. (Recounts of the ballots by media organizations produced ambiguous results; they suggest that Gore would have won a full statewide recount and Bush would have won the limited recount initially sought by the Gore forces.) But the case also represents a revealing prologue to what the Supreme Court has since become. As in Bush v. Gore, nominally conservative Justices no longer operate by the rules of traditional judicial conservatism.”

For his part, Justice Scalia has told those who take issue with the majority’s ruling in Bush v. Gore to “Get over it.”

That’s what came back to me while reading Justice Scalia’s dissent in Friday’s marriage ruling. Sure, Scalia’s rejoinders can be a delight to read. But his charge that his colleagues in the marriage majority, which, after all, upheld its responsibility to say what the law is, overstepped, might be more credible if Scalia himself were to have followed his own admonition to give the people their say.

Or as Justice Scalia might say: Really?

Categories
Law

The Supreme Court’s ruling on marriage equality

Marriage equality is the law of the land.

By a vote of 5 to 4, the Supreme Court ruled Friday that guarantees of due process and equal protection of law enshrined in the 14th Amendment to the Constitution require states to license marriages between two people of the same sex. “No longer may this liberty be denied to them,” Justice Anthony Kennedy wrote for the majority.

One can imagine the concluding paragraph of the majority’s opinion being read aloud at weddings henceforth. In it, Justice Kennedy writes:

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

The judgment of the Court of Appeals for the Sixth Circuit is reversed.

It is so ordered.”

Categories
Law

The Obamacare ruling shows that context matters

The Supreme Court on Thursday ruled that subsidies for health insurance should be available to Americans wherever they reside.

At issue was a section of the Affordable Care Act (ACA) that authorizes tax credits for those who purchase coverage in marketplaces “established by the state.” Four policyholders from Virginia sued, charging that those four words meant the law did not authorize credits for taxpayers in states, like theirs, that rely on the federal health-insurance marketplace. Without subsidies, the petitioners charged, they could neither afford health insurance nor be required by law to purchase it.

That ambiguity presented the Court with the need to interpret the ACA and marked the second time since the law was enacted in 2010 that its fate fell to the justices.

A trial court dismissed the suit after finding that the ACA provided subsidies for plans purchased through either the state or federal exchanges. The 4th U.S. Circuit Court of Appeals affirmed but the Court of Appeals for the D.C. Circuit ruled, in a separate case, that the ACA limited tax credits to state exchanges only.

By a vote of 6 to 3, the Court sided with the 4th Circuit. As Chief Justice John Roberts wrote for the majority:

“If the statutory language is plain, we must enforce it according to its terms. But oftentimes the ‘meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.’ So when deciding whether the language is plain, we must read the words ‘in their context and with a view to their place in the overall statutory scheme.’ Our duty, after all, is to ‘construe statutes, not isolated provisions.'” [citations omitted]

The majority agreed with the petitioners that the language of the phrase at issue was ambiguous, in that one can read it as limited to state exchanges or as applicable to both state and federal exchanges.

The ambiguity prompted the majority to look to the broader structure of the law. Congress put in place subsidies as part of a push to maximize the pool of people who are insured, the majority noted. That lowers premiums by avoiding an alternative whereby only people who need health insurance—those who are less healthy and presumably consume more health care—buy it.

The alternative, which would have denied subsidies to roughly 6.4 million people in 34 states that use the federal exchange, could upend the market for health insurance irreparably. In that event, the Chief Justice wrote:

“One study predicts that premiums would increase by 47 percent and enrollment would decrease by 70 percent… It is implausible that Congress meant the Act to operate in this manner… Petitioners’ arguments about the plain meaning of [the law] are strong. But while the meaning of the phrase ‘an exchange established by the state’ may seem plain ‘when viewed in isolation,’ such a reading turns out to be ‘untenable in light of [the statute] as a whole.’ In this instance, the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.” [citations omitted]

Congress passed the ACA “to improve health insurance markets, not destroy them,” wrote Roberts. “If at all possible, we must interpret the act in a way that is consistent with the former, and avoids the latter.

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Fate of Obamacare to turn on four words

The Supreme Court is expected to decide as soon as this week whether a main part of the Affordable Care Act (ACA) can survive.

Four residents of Virginia contend they were forced by the ACA to buy coverage because of subsidies they receive from the federal government. Their appeal rests on the words “established by the state,” a phrase in the law that the challengers say means that only people who buy coverage through marketplaces established by states—not through the federal health care marketplace—qualify for subsidies.

Virginia is among 34 states that use the federal marketplace. Absent the subsidy, the challengers charge they would be neither able nor required to buy health insurance. If the Court agrees, 6.4 million people could lose tax credits that help them afford coverage and, in most instances, keep them on the rolls.

The government calls the interpretation advanced by the challengers strained. Congress never intended to distinguish between federal and state exchanges in setting up subsidies, proponents of the law say.

Instead, the four words at issue constitute a vestige of an assumption—abandoned during the legislative process—that each state would establish an exchange. It later became apparent that some states would decline to set up exchanges, in which case the federal government made coverage available through HealthCare.gov.

More than 11 million Americans have signed up for health coverage since the ACA passed five years ago. In all, 48% of Americans say the law is working well or needs minor improvements, while 50% say it needs to be overhauled or eliminated, according to the latest NBC News/Wall Street Journal poll.  That’s down from December 2013, when 57% of adults said the law needed to be recast.

Not surprisingly, support for the ACA divides along party lines.  A survey last February by the Pew Research Center found that 87% of Republicans opposed the law while 78% of Democrats supported it.

According to the latest Gallup poll, people between the ages of 18 and 29, those who earn less than $24,000 a year, and black and Hispanic voters are most likely to say the law has helped them and their families.

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Law

Supreme Court backs ban on Confederate license plates, strikes down Arizona sign law

Two rulings last week by the Supreme Court highlight differences in the protection of speech depending in part on who is speaking and reveal some of the ways the justices assess First Amendment claims.

By a vote of 5 to 4, the Court affirmed, in an appeal by the Texas Division of the Sons of Confederate Veterans, that speech by the government may not be challenged as violating the Constitution. Separately, by a unanimous judgment that stretched across four concurring opinions, the Court invalidated a code adopted by the town of Gilbert, Arizona that governed the display of billboards and outdoor signs.

The rulings “are likely to be analyzed together from here on, to determine how—and whether—they fit into the strong pattern that the modern Court had followed in more or less steadily expanding free-speech rights,” Lyle Denniston observed at Scotusblog. “Indeed, in some ways the outcomes seemed contradictory, and the splintering of the Court added to that appearance.”

In the case from the Lone Star State, the Court reviewed the veterans group’s challenge of a decision about five years ago by the Texas Department of Motor Vehicles Board, which rejected the group’s proposal for a license plate featuring a Confederate battle flag. Comments filed by the public as part of the review process showed that many people considered the design offensive, the board said. (The proposal preceded the massacre at Emanuel African Methodist Episcopal Church in Charleston that, among other things, has renewed calls to remove the Confederate flag from the state capitol.)

Though the trial court backed the board, the 5th Circuit U.S. Court of Appeals reversed, concluding that the board, in declining to approve the design, discriminated against the veterans’ viewpoint in violation of the First Amendment.

The Court disagreed. “When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says,” Justice Breyer wrote for a majority joined by Justices Thomas, Ginsburg, Kagan and Sotomayor. “That freedom in part reflects the fact that it is the democratic electoral process that first and foremost provides a check on government speech.”

A review of the program by which Texas considers proposals for specialty license plates shows that “Texas explicitly associates itself with the speech on its plates” and that someone who displays a message on a license plate issued by the state “likely intends to convey to the public that the state has endorsed that message,” explained Justice Breyer. “If not, the individual could simply display the message in question in larger letters on a bumper sticker right next to the plate.”

The First Amendment applies to government regulation of speech by members of the public, not to speech by the government, the majority noted. Members of the public who disagree with speech by the government have both the freedom to criticize the government’s views and to vote elected officials out of office, the Court explained. Democracy itself “provides a check on government speech,” Justice Breyer noted.

The alternative—subjecting speech by the government to the strictures of the First Amendment—would not work, Justice Breyer noted, adding:

“How could a city government create a successful recycling program if officials, when writing householders asking them to recycle cans and bottles, had to include in the letter a long plea from the local trash disposal enterprise demanding the contrary? How could a state government effectively develop programs designed to encourage and provide vaccinations, if officials had to provide the prospective of those who oppose this type of immunization?”

But specialty license plates do not constitute government speech, countered the dissenters, who likened the plates to a so-called limited public forum, which allows state property to be used by private speakers, such as when a city turns over its municipal auditorium for a candidates’ debate. In those cases, the dissenters noted, the First Amendment prevents the government from discriminating on the basis of viewpoints. As Justice Alito explained:

“The Confederate battle flag is a controversial symbol. To the Texas Sons of Confederate Veterans, it is said to evoke the memory of their ancestors and other soldiers who fought for the South in the Civil War. To others, it symbolizes slavery, segregation, and hatred. Whatever it means to motorists who display that symbol and to those who see it, the flag expresses a viewpoint. The Board rejected the plate design because it concluded that many Texas would find the flag symbol offensive. That was pure viewpoint discrimination.”

The State of Texas has authorized more than 350 specialty license plates, including plates bearing the names of high schools, fraternities or sororities, the Daughters of the American Revolution, a favorite soft drink and a favorite NASCAR driver, Justice Alito observed. Would someone sitting at the side of a highway in Texas, watching the vehicles pass by, “really think that the sentiments reflected in these specialty plates are the views of the State of Texas and not those of the owners of the cars?” he asked. “If a car with a plate that says ‘Rather Be Golfing’ passed by at 8:30 am on a Monday morning, would you think: ‘This is the official policy of the State—better to golf than to work?’”

On the other hand, attempts by the government to regulate speech will be presumed unconstitutional whenever the regulation differentiates among private citizens based on the content of their message. The town of Gilbert, a city of roughly 209,000 people that sits about 22 miles southeast of Phoenix, established rules for the display of outdoor signs based on three categories: those that conveyed so-called ideological messages, those that aimed to influence the outcome of an election, and those that directed people to a gathering of a religious, charitable or nonprofit organization.

At issue was an appeal by the Good News Church, which the town fined for posting between 15 and 20 temporary signs that advertised upcoming services. The signs omitted a date for the assemblies and remained posted for longer than the 13 hour-period that concluded one hour after the services. The town cited the church, which sued.

A trial court sided with the town. The 9th U.S. Circuit Court of Appeals agreed, concluding that the code did not discriminate among displays based on the content of their message.

The Court reversed the ruling. “The restrictions in the Sign Code that apply to any given sign thus depend entirely on the communicative content of the sign,” Justice Thomas wrote in an opinion joined by Justices Roberts, Scalia, Kennedy and Sotomayor. “On its face, the Sign Code is a content-based regulation of speech. We thus have no need to consider the government’s justifications or purposes for enacting the Code to determine whether it is subject to strict scrutiny.”

According to Thomas, the appellate court’s determination that the code did not regulate speech based on the town’s disagreement with any particular message disregarded the need to determine initially whether the law as written avoided distinctions based on the message being conveyed.

In upholding the code, the 9th Circuit had determined that the town’s attempt to regulate signs had nothing to do with the content of their messages. But that overlooked “the crucial first step in the content-neutrality analysis: determining whether the law is content neutral on its face,” Justice Thomas wrote. “In other words, an innocuous justification cannot transform a facially content-based law into one that is content neutral. Thus, a speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter.”

That view went too far, according to Justices Breyer and Kagan, who wrote separately to covey their view. “Regulatory programs almost always require content discrimination,” Justice Breyer noted. “And to hold that such content discrimination triggers strict scrutiny is to write a recipe for judicial management of ordinary government regulatory activity.”

As Justice Breyer noted, the government requires that public companies include certain content in securities filings, that labels for prescription drugs bear the symbol ‘Rx only,” that rules requiring confidentiality of medical records allow a physician to disclosed that a patient has HIV to the patient’s spouse or sexual partner, and that commercial airplane pilots must ensure that each passenger has been advised to fasten his or her seatbelt. According to Justice Breyer:

“The better approach is to generally treat content discrimination as a strong reason weighing against the constitutionality of a rule where a traditional public forum, or where viewpoint discrimination, is threatened, but elsewhere treat it as a rule of thumb, finding it a helpful, but not determinative legal tool, in an appropriate case, to determine the strength of a justification.”

Despite the ruling, three of the four opinions gave little guidance to municipalities, which may be left to wonder how they might regulate the placement of billboards without contravening the Constitution. That fell to Justice Alito, who, in a concurrence joined by Justices Kennedy and Sotomayor, offered some examples of how to regulate outdoor signs other than by reference to the content of the billboards themselves:

“I will not attempt to provide anything like a comprehensive list, but here are some rules that would not be content based:

Rules regulating the size of signs. These rules may distinguish among signs based on any content-neutral criteria, including any relevant criteria listed below.

Rules regulating locations in which signs may be placed. These rules may distinguish between free-standing signs and those attached to buildings.

Rules distinguishing between lighted and unlighted signs.

Rules distinguishing between signs with fixed messages and electronic signs with messages that change.

Rules that distinguish between the placement of signs on private and public property.

Rules distinguishing between the placement of signs on commercial and residential property.

Rules distinguishing between on-premises and off-premises signs.

Rules restricting the total number of signs allowed per miles of roadway

Rules imposing time restrictions on signs advertising a one-time event. Rules of this nature do not discriminate based on topic or subject and are akin to rules restricting the times within which oral speech or music is allowed.”

That’s not to suggest that all regulation of speech that does not encompass content comports with the First Amendment. Rules that set the so-called time, place and manner of speech must be narrowly tailored to serve a legitimate government interest but, as Justice Alito, explained, “need not meet the high standard imposed” on regulations that regulate speech based on its content or the speaker’s viewpoint.

At least some municipalities welcomed the ruling, which impacts most local governments. “Gilbert looks forward to the opportunity to review its own regulations to make necessary changes consistent with the Supreme Court’s decision,” Michael Hamblin, the town’s attorney, said in a statement.

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Law

Supreme Court strikes down Jerusalem passport law

The Supreme Court on Monday ruled that the power to recognize foreign nations belongs to the president alone, resolving a dispute between the executive branch and Congress over the American position on the status of Jerusalem.

The decision came in connection with a passport issued to Menachem Binyamin Zivotofsky, who was born in 2002 to U.S. citizens living in the contested capital. Zivotofsky’s parents had asked the U.S. Department of State to list the place of birth on his passport as “Jerusalem, Israel.” The department declined, citing a longstanding policy of neutrality on the status of the city. Zivotofsky’s passport would list only “Jerusalem” as his place of birth, the department determined.

Zivotofsky’s parents sued, charging that a law passed in 2002 requires the Secretary of State to identify citizens born in Jerusalem who so request as being born in Israel, a position at odds with the policy of presidents dating to the Oslo Accords, which call for Jerusalem’s status to be resolved through negotiation. Though a trial judge declined to resolve the dispute, which the judge concluded presented a question committed to the legislative and executive branches of government, the D.C. Circuit Court of Appeals later sided with the executive branch, declaring the statute to be unconstitutional.

By a vote of 6 to 3, the Court agreed, holding that the Constitution gives the president the exclusive right to recognize foreign governments and nations. “The President’s exclusive recognition power encompasses the authority to acknowledge, in a formal sense, the legitimacy of other states and governments, including territorial bounds,” Justice Kennedy wrote for the majority. “Albeit limited, the exclusive recognition power is essential to the conduct of presidential duties.”

“The formal act of recognition is an executive power that Congress may not qualify,” he added.

In arriving at its determination, the majority looked to the framework for assessing exercises of executive power first articulated by the Court in 1952, when the justices invalidated a move by President Truman to seize the nation’s strike-bound steel mills during the Korean War. According to that analysis, when the president takes measures that are incompatible with a congressional mandate, the president’s power, as Kennedy explained, “must be both ‘exclusive’ and ‘conclusive’ on the issue.”

The majority traced debates over the power to recognize nations to 1793, when President Washington, without consulting Congress, authorized diplomatic relations with the revolutionary government of France. “Congress expressed no disagreement with this position, and [the French ambassador’s] reception marked the Nation’s first act of recognition—one made by the president alone,” wrote Kennedy.

According to the Court, Congress also honored a decision by President Monroe not to recognize Argentina and Chile initially as those republics cast off colonization by Spain, as well as a determination by President Jackson to recognize Texas when it ceded from Mexico and President Lincoln’s decision to recognize Liberia and Haiti.

Similarly, as the majority noted, Congress acceded to President McKinley’s opposition to recognizing Cuba when it separated from Spain in 1898 and to President Carter’s recognition of the People’s Republic of China instead of Taiwan as the government of China.

Though the recognition power belongs exclusively to the president, Congress has other ways to disagree with the executive branch in the conduct of foreign relations, the majority noted. As Kennedy observed, the Constitution authorizes the legislature to decline to confirm an ambassador, to put in place an embargo or to declare war.

“From the face of [the statute], from the legislative history, and from its reception, it is clear that Congress wanted to express its displeasure with the president’s policy by, among other things, commanding the executive to contradict his own, earlier stated position on Jerusalem,” Kennedy wrote. “This Congress may not do.”

For their part, the Court’s dissenters rejected the majority’s view of the separation of powers at issue. “I agree that the Constitution empowers the president to extend recognition on behalf of the United States, but I find it a much harder question whether it makes that power exclusive,” wrote Justice Scalia, who took the unusual step of reading his dissent from the bench.

Chief Justice Roberts, writing separately, called the ruling unprecedented. “Today’s decision is a first: Never before has this Court accepted a president’s direct defiance of an Act of Congress in the field of foreign affairs,” he wrote.

U.S. and Palestinian officials welcomed the ruling, while the Israeli government declined to comment. “This is an important decision which accords with international resolutions and the resolutions of the U.N. Security Council and General Assembly,” a spokesman for Palestinian President Mahmoud Abbas told Reuters.