Kavanaugh’s Senate Questioning Might Sound Familiar

When Brett Kavanaugh was discussed as a possible nominee to the Supreme Court, the popular refrain was that Mitch McConnell disfavored Kavanaugh due to his paper trail. Once called the “Forrest Gump of Republican politics” because of his role in several conservative legal events over the past 25 years, it was assumed that Kavanaugh’s prior involvement with hot button legal issues would be used against him. Well, Kavanaugh’s paper trail will indeed be used effectively against him, but not regarding his views on reproductive freedom or the role of the president. Rather, it will be his prior views regarding allegations of sexual misconduct which may derail his nomination.

As we all know, Kavanaugh will be questioned under oath before the senate judiciary committee regarding the allegations made by Dr. Christine Blasey Ford. When questioning him, Democrats may very well use Kavanaugh’s prior writings in the Clinton impeachment investigations to put him in a bind.

During the Starr investigation, Kavanaugh strongly asserted that perjury – regardless of the nature of the underlying testimony – warranted removal of the president from office. So during this week’s hearing, Kavanaugh will be forced to answer whether perjury constitutes adequate grounds to deny his confirmation. If he says “yes” (which he likely will), then he is giving democrats and swing republicans a justification to oppose his confirmation. If he says “no”, then his position on the Starr investigation comes back to bite him. Certainly, if perjury in a civil suit regarding an affair warrants removal of the president, then perjury during confirmation hearings, about attempted rape, absolutely warrants removal of a federal judge. Under Kavanaugh’s own Clinton-era logic, he should not even be a circuit court judge – let alone Supreme Court justice – if he perjures himself in the slightest here.

Next, Kavanaugh’s aggressive approach towards questioning President Clinton also will be used against him. During the Starr investigation, Kavanaugh issued a memo advocating for a no-punches-pulled approach towards questioning the president, even if that involved questions related to graphic sexual conduct. Especially related to graphic sexual conduct.

These are some examples of questions for President Clinton that Kavanaugh actually proposed:

“If Monica Lewinsky says that you inserted a cigar into her vagina while you were in the Oval Office area, would she be lying?”

“If Monica Lewinsky says that on several occasions in the Oval Office area, you used your fingers to stimulate her vagina and bring her to orgasm, would she be lying?

“If Monica Lewinsky says that you had phone sex with her on approximately 15 occasions, would she be lying?”

“If Monica Lewinsky says that you ejaculated into her mouth on two occasions in the Oval Office area, would she be lying?”

“If Monica Lewinsky says that you masturbated into a trash can in your secretary’s office, would she be lying?”

Kavanaugh wrote to Starr, “I am strongly opposed to giving the President any ‘break’ in the questioning regarding the details of the Lewinsky relationship – unless before his questioning on Monday, he either (i) resigns or (ii) confesses perjury and issues a public apology to you… The idea of going easy on him at the questioning is thus abhorrent to me… Aren’t we failing to fulfill our duty to the American people if we willingly “conspire” with the President in an effort to conceal the true nature of his acts?”

This memo is…wild. For Kavanaugh to so ardently insist on asking these questions to the President of the United States must mean that no questions are off limits when it comes to misconduct of public officials, right? Right??

That is where Kavanaugh’s chickens will come home to roost. Democratic senators may very well read passages from that memo to him, stating that it is a senator’s duty to obtain the full set of facts regarding a SCOTUS nominee’s alleged misconduct. That duty, under Kavanaugh’s own logic, would require asking detailed, graphic questions about the allegations made.

Then come the actual questions. Questions like:

1. “If Dr. Ford said you groped her, would she be lying?”

2. “If Dr. Ford said you pinned her to the bed and tried to pull her clothes off, would she be lying?”

3. “If Dr. Ford said you covered her mouth when she attempted to scream, would she be lying?”

4. “If this event took place, would it be disqualifying?”

5. “When you were 17, was it common for you to go to parties in suburban Montgomery County, MD? Would you drive there? Did you own a car?”

6. How old were you when you first drank alcohol?”

7. How old were you when you first got blackout drunk?

8. “When you were 17 years old, how often would you drink?

9. “When you were 17, how much would you have to drink on weekends?”

10. “When you were 17, how often would you get blackout drunk?”

11. “When you were 17, had you had sex previously?”

12. “You were driving to these parties and then drinking; how would you get home if you were drunk?

13. “Have you ever driven under the influence of alcohol?”

14. “Are you sure the reason you don’t remember this incident isn’t because you were blackout drunk?”

If Kavanaugh feigns righteous indignation in response to these questions, he will appear hypocritical. If he answers “no” to most of the above questions, then he will have pretty clearly perjured himself, given his documented history. If he answers the questions affirmatively, then he is admitting that he was commonly blackout drunk, at parties, and thus we have no reason to trust his denial of the assault allegation.

So, at best, Kavanaugh will simply lose all credibility regarding the assault. At worst, Kavanaugh may perjur himself or be forced to admit to various alcohol-related criminal misconduct. True, underage drinking isn’t in and of itself a good reason to deny someone a seat on the supreme court 35 years later. But it does substantiate parts of Blasey Ford’s story and also undermine Kavanaugh’s ability to accurately recollect any such incident.

At that point, where are we? That he probably did assault her but didn’t lie about it because he was too drunk to remember? Is that a sufficient reason for GOP senators to push Kavanaugh through? It very well might be, but jeez. When I was a kid, SCOTUS nominees had to withdraw for smoking marijuana.

Now, I don’t know if publicly asking Kavanaugh the above 14 questions is a good look for the country. In fact, it will probably have a negative impact on public perception of the Senate, Supreme Court, and the judiciary. Rather, my point is that Brett Kavanaugh is uniquely incapable of credibly objecting to these graphic questions or this line of attack. In fact, he has invited these questions. And that is how his paper trail may ultimately prove to facilitate his undoing.


Update: At roughly the same time this article was posted, Ronan Farrow and Jane Mayer at the New Yorker published a story about a second sexual misconduct accusation against Brett Kavanaugh. It is unclear if Thursday’s hearing (or Kavanaugh’s nomination, for that matter) will proceed as scheduled.

The Third Rail of Modern Supreme Court Jurisprudence: Pennsylvania Republicans File Hail Mary Emergency SCOTUS Petition In Gerrymandering Case

Among the “third rail” cases in recent Supreme Court history, one stands out the most: Bush v. Gore. Subsequently cited only once by the Supreme Court (in a footnote), it was written so as to not be relied upon, containing the notorious line, “our consideration is limited to the present circumstances.” In other words, “this case will self-destruct on January 20, 2001”. So imagine everyone’s surprise when Bush v. Gore was cited in a newsworthy emergency petition before the U.S. Supreme Court on Thursday.

The petition at issue deals with the Pennsylvania Supreme Court’s decision on Monday to strike down the state’s congressional map, on state constitutional grounds. Beyond just overturning the map, the court also implemented a tight schedule for the state legislature to redraw the districts, giving them three weeks to do so. If no map is submitted by the deadline, or if the governor rejects it, then the Pennsylvania Supreme Court will “adopt a plan based on the evidentiary record developed in the [lower] Court.”

Pennsylvania Republican legislators have now filed with the U.S. Supreme Court an emergency petition to stay, contending that the order of the Pennsylvania Supreme Court improperly exercised the power of the Pennsylvania legislature to draw district lines.

This is where true conservatives would oppose the federal judiciary stepping in to usurp  powers reserved to the states. Indeed, the decision is based entirely on an interpretation of the state constitution, which is in and of itself not reviewable by the Supreme Court. But the PA GOP makes the argument that the PA Supreme Court violated the Elections Clause of U.S. Constitution, which states, “[t]he Times, Places and Manner” of congressional elections “shall be prescribed in each State by the Legislature thereof” unless “Congress” should “make or alter such Regulations.” U.S. CONST. art. I, § 4, cl. 1. 

Enter Bush v. Gore.

In arguing its case, the PA GOP cites Bush v. Gore, as well as its procedural predecessor, Bush v. Palm Beach Canvassing Board (“Bush I”) in support of its argument. Bush v. Palm Beach is particularly relied upon, as it’s the first, last, and most frequently cited case in the brief. Basically, the petitioners argue that because the Elections Clause vests power to draw district lines with state legislatures, not courts, the U.S. Constitution is violated when state courts act legislatively in the area of federal congressional district line drawing.

However, in citing Bush v. Gore (as opposed to Bush I), the petitioners go even further. Quoting the concurring opinion by Chief Justice Rehnquist, the petitioners argue that the Court is required to review “what Pennsylvania’s lawmakers have written.” In other words, the Supreme Court must not only review whether the PA Supreme Court acted legislatively in mandating the drawing of new maps, but it must also independently review the propriety of the old maps which were drawn by the Pennsylvania legislature.

This, quite frankly, is where the brief goes really haywire. First, Rehnquist’s concurring opinion was joined only by Scalia and Thomas, only one of whom is alive (Kennedy resolved the case on Equal Protection grounds). Second, and more importantly, the concurring opinion went out of its way to note the exceptional circumstances at play, where the fate of the presidency lay in the balance. Third, petitioners seem to argue that the Supreme Court must actually review the adequacy of the original maps, which certainly involves an interpretation of the state constitution.

Given these facts, why would petitioners cite Bush v. Gore at all? What’s the point? Given that Kennedy didn’t join that concurring opinion, they know going in that they cannot get to five on that particular point. Further, by its very nature, the concurring opinion dealt exclusively with the fact that the election at hand was for the presidency. So they just cited the most embarrassing case in modern Supreme Court history, for no discernible gain.

To be clear, I’m not saying that all of the Justices would think poorly of this. After all, Justice Thomas voted for it, and you can probably tack on Alito and Gorsuch. Also, Chief Justice Roberts was on Bush’s election legal team for Bush v. Gore, so you never know. But he is the Justice most concerned with institutional legitimacy, and relying on Bush v. Gore is probably the last thing he wants to do. Plus, you immediately anger all four of the liberal Justices.

Finally, there’s the fact that Pennsylvania’s argument reads exactly like something conservative justices would normally hate: an attempt to have the federal judiciary overturn a state’s interpretation of its own constitution. And most of the brief reads like a thinly veiled attempt to do so.

In one way, however, Pennsylvania’s argument is quintessentially jurisprudentially conservative, in that they argue that courts shouldn’t be able to mandate the conduct of the legislature: “The Pennsylvania Supreme Court has now legislated criteria the Pennsylvania General Assembly must satisfy when drawing a congressional districting plan…”

The natural response to this is that courts do this all the time: they determine whether legislative action is constitutional and then set forth criteria that legislatures must meet to satisfy the constitution.

That is the major flaw in the argument. In order for this to even be a federal issue in the first place, the U.S. Supreme Court must accept the premise that the Pennsylvania Supreme Court (or any court) is not allowed to ask whether legislative action is constitutional, set out criteria for making this determination, and then issue an order to ensure that constitutional strictures will be complied with.

That is why the petitioners will ultimately lose. Justice Alito – the Circuit Justice for the Third Circuit – is surely going to refer the petition to the entire court, and there might even be a stay pending further briefing. But there is a minimal chance that they will convince Chief Justice Roberts and Justice Kennedy and the three remaining conservatives to encroach on state sovereignty in such a fashion, particularly when the main authority on which their argument is based is Bush v. Gore of all cases.

Masterpiece Cakeshop v. Colorado Civil Rights Commission: Because Apparently a Dispute Over Cake is a Perfect Microchasm of 2017

Bad facts make bad law, which is why the Supreme Court erred in granting certiorari in Masterpiece Cakeshop v. Colorado Rights Commission. Regardless, the court hears argument in the case on Tuesday, so let’s preview it.

As a reminder, Jack Phillips, a baker in Denver, refused to bake a cake for a gay couple’s wedding. When he was predictably sued, he claimed that his First Amendment rights protect him from anti-discrimination statutes. For more of a legal analysis of the merits, I have reviewed the case here. In a nutshell, Phillips does not have a legitimate claim, because one cannot discriminate at will simply because he sells things which happen to contain aspects of expression. Otherwise, anti-discrimination statutes would cease to have meaning or teeth.

Despite this fact, the court granted cert, notably in unusual fashion, where it re-listed the case eighteen times only to finally grant the case. And naturally, the U.S. government joined the baker.

As I have made clear, the court should not have taken this case, but not for the reasons one might think. I do not have a problem with Phillips claiming that his cakes are expressive; most of them probably are. Rather, the problem is that the facts fail to raise close questions of what constitutes compelled speech in the context of commercial goods and services.

Unfortunately for Mr. Phillips, he refused to bake a cake without even knowing what the cake would be, and his protestations of being a “cake artist” miss the point entirely. If Jackson Pollock (or Duff Goldman) himself refused to sell his art to African-Americans, he would not be protected by the First Amendment, even though Pollock was undoubtably an artist and his pieces were certainly expressive. If Phillips refused to sell a plain white cake to for an interracial wedding, his claims would have no chance. Changing “interracial wedding” to “same-sex wedding” makes no difference constitutionally, yet here we are.

Obviously, anti-discrimination statutes have limits. When minority actors were cast as all of the leads in Hamilton, I could not legitimately claim that my rights were violated, even though I have “Guns and Ships” down pat. These casting decisions are made for purely expressive purposes, they are critical to the artwork, and they are protected by the First Amendment. Now, if Hamilton refused to sell tickets based on race, that is where the show would lose First Amendment protections. To put it in dad-humor form, Hamilton’s First Amendment rights would lose the duel to the audience’s anti-discrimination protections.

The gay couple in Masterpiece Cakeshop was Hamilton’s ticket-buying audience, not the auditioning actor. Refusing services to specific classes of people is one of our most historically pernicious practices, and one which finds no shelter in our (current) constitution. Phillips did not even bother to ask what kind of cake the couple wanted. This was not about the cake, it was about Phillips not liking gay marriage and denying his goods and services – in any form – on that basis. This case should be easy.

Now, I doubt that respondents’ time at oral argument will be a cakewalk (sorry again). Of the eight talking justices, two will certainly be against them. Justice Alito will surely offer pointed hypotheticals designed to expose flaws in the couple’s argument; that’s what he does, and he is quite good at it. Justice Gorsuch will arrogantly offer hanging curveballs – which he thinks are 101mph fastballs – to the couple’s counsel and the liberal justices. But other than those two plus Justice Thomas, I just don’t see Phillips’ argument gaining traction. He has no chance with the four liberal justices, and Justice Kennedy will take umbrage with the plain white cake scenario and the racial analogies. At best, Chief Justice Roberts might vote for Phillips on a narrow basis, but that still gets Phillips to four votes, not five.

In the end, the Supreme Court could and should have taken a true compelled speech case in order to tease out of interplay between the First Amendment and anti-discrimination statutes. But it didn’t, and now the Justices are left with egg (and sugar, and butter, and flour) on their faces.

“Some Group of Computer Experts” and Their “Sociological Gobbledygook”: Oral Argument In Gill v. Whitford

Gill v. Whitford involves the most blatant, egregious instance of political gerrymandering that our country has seen in a very long time. This is ironic, because while the facts at issue may compel five justices to take action, they will probably be irrelevant to the Court’s ultimate holding.

Last term, I wrote about the Supreme Court granting certiorari in Gill v. Whitford, a momentous political gerrymandering case involving redistricting of the Wisconsin state house districts. Over the summer, merits briefs were filed and the Court heard argument on Tuesday morning. The respondents – citizens of Wisconsin – have demonstrated unimpeachable evidence that the GOP-controlled Wisconsin State Assembly intentionally drew maps with the express intent to disproportionately maximize the number of GOP districts, in the most aggressive, brazen ways possible (resulting in winning 60% of the assembly seats with only 47% of the vote). Their facts are based on concrete scientific and mathematical findings, as well as unprecedented evidence of intent to redraw lines for purely political ends. This much is really beyond dispute, which is probably why the case is before the Supreme Court in the first place.

The Court has two much bigger legal questions before it, neither of which actually require discussion of any facts: 1) are political gerrymandering claims justiciable at all, and 2) if so, what is an appropriate, manageable standard with which to analyze those claims? In a way, the case is so appealing because the facts approach the logical conclusion of this issue – if there ever is to be a finding of an unconstitutional political gerrymander, this is it.

But that is essentially where the facts end and the legal issues begin. In a prior case, Vieth v. Jubilerer, four justices found that political gerrymandering cases were non-justiciable and four justices said that they were justiciable and that a workable standard existed. Then there was Justice Kennedy, who found that no manageable standard had been presented, but left open the possibility that one might exist in the future. A prior case held that such claims were justiciable, but the court in that instance fractured on the specifics of the standard.

Predictably, finding a manageable standard was on everyone’s minds at oral argument. The Wisconsin Solicitor General began her argument by stating, “This Court has never uncovered judicial and manageable standards for determining when politicians have acted too politically in drawing district lines.” Counsel for the Wisconsin State Senate also began her argument by proclaiming, “Plaintiffs have not identified a workable standard…” They might as well have stared directly at Justice Kennedy.

Justice Breyer, for his part, cut even further to the heart of the issue, explaining why all the mathematical mapping models on earth could not help the plaintiffs unless they identified a workable standard: “Because I think the hard issue in this case is are there standards manageable by a Court, not by some group of social science political ex — you know, computer experts.” Put differently, again by Justice Breyer, “When I read all that social science stuff and the computer stuff, I said, well, what — is there a way of reducing it to something that’s manageable?”

That is why, at oral argument, the actual facts of the case were barely discussed.  True, the justices did thoroughly address S-curves, Efficiency Gaps (EG) and other mathematical modeling, but mostly in the context of determining the judicial manageability of using those tools. Chief Justice Roberts aggressively attacked the Plaintiffs’ reliance on mathematical modeling, calling it “sociological gobbledygook” and forcefully asserting that, “It is just not [] a palatable answer to say the ruling was based on the fact that EG was greater than 7 percent.  That doesn’t sound like language in the Constitution.” Plaintiff’s counsel struggled to parry attacks as to this issue, particularly when he attempted to use statistical modeling in establishing a manageable legal standard. There appear to be four justices who reject the use of mathematical modeling in evaluating a political gerrymandering claim.

Ultimately, however, Justice Kennedy seemed quite skeptical of Wisconsin’s argument that no act of political gerrymandering could ever be unconstitutional, no matter how brazen. He repeatedly questioned counsel for the Wisconsin State Senate on whether a state could amend its constitution to mandate that district maps would be drawn to maximize votes for a particular party. He seemed thoroughly dissatisfied with counsel’s answer, which suggests that he believes that political gerrymandering could run afoul of the constitution, albeit possibly in only the most blatant cases.

But no matter how this case comes out, the actual facts involved likely will not play a major role, beyond simply convincing Justice Kennedy to come off the sidelines and adopt a workable standard. For example, if political gerrymandering is held to be non-justiciable, then the facts would never have mattered. On the other hand, if Justice Kennedy can agree to a manageable standard, then the case will most likely be remanded back to the lower court to re-apply the facts to this new standard, albeit with the understanding that these facts probably clear whatever hurdle the high court implements. If the court adopts the standard implemented by the District Court, then the District Court’s decision will be affirmed.

So, again, as compelling as the facts may be, they do not really matter once they have cajoled Justice Kennedy onto the field.

SCOTUS Takes Masterpiece Cakeshop v. Colorado Civil Rights Commission

On the last day of the term, the Supreme Court granted cert in Masterpiece Cakeshop v. Colorado Civil Rights Commission. It shouldn’t have. Objectively straightforward, the case involves First Amendment claims made by Masterpiece Cakeshop and its owner, Jack Phillips, which are foreclosed by existing precedent and have been rejected by every court, judge and agency to consider them.

The facts are simple and unfortunate. Jack Phillips owns a suburban Denver bakery, Masterpiece Cakeshop. Charlie Craig and David Mullins are a same-sex couple that married out of state and then returned to Colorado to celebrate their nuptials with friends and family. For the occasion, they sought a wedding cake. Unfortunately, they went to Masterpiece Cakeshop and were met by Phillips in the store. That’s where things went south. Craig and Mullins indicated that they wanted a cake for their wedding, without providing any additional details whatsoever. However, Phillips refused to serve them, without knowing any details about the cake they wanted. Phillips explained that he had a policy of not selling cakes for same-sex weddings, but that they could purchase something else there if they wanted. Oh.

Colorado has an anti-discrimination statute (“the Act”) barring discrimination in public accommodations on the basis of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry. Phillips and his bakery violated this statute by their behavior towards Craig and Mullins – that much is not disputed.

Craig and Mullins then filed a charge with the Colorado Civil Rights Division, which conducted an investigation and found that Masterpiece Cakeshop violated the Act. The Colorado Attorney General then filed an administrative action, wherein summary judgment was granted against Masterpiece Cakeshop. The company then appealed to the Colorado Civil Rights Commission and then to the Colorado Court of Appeals, losing all along the way. The Colorado Supreme Court denied the company’s petition for review. The company and its owner, Phillips, then petitioned for cert to the U.S. Supreme Court, which granted the petition last week after a whopping 14 re-lists. Phillips and his company make two claims: that the decision violates their rights of free speech and free exercise of religion under the First Amendment.

The free exercise claim is straightforward. In Employment Division v. Smith, 494 U.S. 872, 885 (1990), an individual was denied unemployment benefits after he was fired for the religious use of peyote. In rejecting the former employee’s Free Exercise claim, the Court found that “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Id. at 879. Thus, a generally applicable law such as one banning peyote does not violate the Free Exercise claim just because it happens to bar conduct that some engage in for religious reasons. Likewise, non-discrimination statutes such as the Colorado Anti-Discrimination Act do not target religion, they simply prohibit discrimination on the basis of a protected class. Said statutes are valid, neutral, and of general applicability. Countless similar anti-discrimination statutes across the country have been validated on that basis.

That Phillips, the store owner, doesn’t want to follow the law is irrelevant. Phillips argues that he believes that god would be displeased by Phillips’ participation in a same-sex wedding. That’s his right to believe that, but it doesn’t exempt him from anti-discrimination statutes. Some misguided people believe that god is displeased when a woman has a full-time job instead of being a housewife; but if a manager at Fedex Office refused to print all married women’s resumes on that basis, the Free Exercise claim would grant him no reprieve.

Jack Phillips is essentially asking the Supreme Court to punch a religion-sized hole in all anti-discrimination statutes, for everyone. This would have disastrous consequences. For example, a CEO buys into the disgusting stereotype that women are of inferior intellect and therefore he refuses to hire them? Well, under Phillips’ logic, as long as the CEO’s beliefs stem from his religious preferences, suddenly he would be free from the shackles of non-discrimination statutes. A restaurant doesn’t want to serve African-Americans? As long as his religion proscribes the mixing of races, then he is in the clear. Or, if Phillips wanted to refuse making cakes for interracial marriages, under his logic he could do that too. Obviously, this position is untenable.

Lastly, Phillips argues that various prior rulings in other cases by the Colorado Civil Service Commission render its application of the Act no longer one of neutral applicability, thus requiring strict scrutiny review. That argument was rejected repeatedly in the lower courts. Even if it is valid, however, the Supreme Court is not a court of error correction. Even if the Supreme Court was concerned regarding the Colorado Civil Service Commission’s past application of the otherwise lawful Act, this is hardly a reason to take the case; at best, even in that circumstance, the Supreme Court could have simply GVR’ed the case back to the Colorado courts on that issue. Simply put, the Supreme Court takes cases about the intersection of discrimination statutes and the First Amendment, not whether the Colorado Civil Service Commission may have erred in its application of law. That’s not what the Supreme Court is here for, and it says as such repeatedly. Indeed, Rule 10 of the Supreme Court Rules, “Consideration Governing Review on Writ of Certiorari,” states, “[a] petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.”

Then there’s the free speech claim. The only problem is that no speech is involved. Phillips was not asked to put specific words on a cake. He wasn’t asked even to make a specific design. He didn’t have any information except: gay wedding. On that basis alone, he refused to serve Mullins and Smith. The cake could have been plain white with no text. It could have been a pre-made sheet cake sitting in a display case. It could have been a cake design traditionally used for birthday parties. It didn’t matter to him. This demonstrates that it wasn’t the particular design or speech that Phillips objected to, it was the very concept of providing a cake – any cake – for a same-sex wedding. In fact, Phillips admits as such in his cert petition, indicating that he does not make cakes for same-sex weddings because “Phillips’ religious conviction compels him to create cakes celebrating only marriages that are consistent with his understanding of God’s design.” The particular speech or design of the cake was irrelevant.

This case is about doing, not speaking. And Colorado is plainly allowed to regulate conduct to proscribe discriminatory behavior. “Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.” R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 390 (1992).

Phillips makes the argument that forcing him to make gay wedding cakes sends the message that he agrees with the concept of gay marriage. Again, examples demonstrate the fallacy of this argument. Could another baker refuse to serve an interracial couple because doing so might send the message that he or she agreed with interracial marriage? Could a KKK grand wizard who owns a diner refuse to serve African-Americans, since doing so might send the message that he didn’t support white supremacy? Countless examples exist to undercut Phillips’ flawed argument.

To be sure, the closer question is whether the Act could mandate specific speech on the cake. But that’s not what’s going on here. Phillips hadn’t agreed to bake the cake and then balked when instructed to put certain verbiage on the cake. He wasn’t asked to write “I support gay marriage” or “god loves gay marriage”. He was asked to make a cake; that many cakes happen to have expressive aspects is not dispositive, especially since Phillips refused the couple before knowing what if any speech or expression was actually involved.

Neither is it persuasive that Phillips is – as he says in his briefs – a “cake artist”. Phillips’ self-professed artistry doesn’t exclude him from anti-discrimination statutes. Do wedding dancers, or a wedding DJ, or a wedding caterer possess the constitutional right to only perform for Christian weddings, on the basis that they are artists who believed that God only prefers Christian weddings? Obviously not.

That’s why its so puzzling that the Supreme Court took this case. This case is easy, and any complicated aspects of it relate only to the application of facts to law. Again, a future baker in a similar situation would have a much more plausible case if he was asked to actually put pen to paper (or pastry bag to cake, as the case may be). There are indeed some interesting questions: When is business conduct sufficiently imbued with expression so as to trigger First Amendment protection? When can the free exercise of religion permit businesses to engage in otherwise-proscribed conduct? When do anti-discrimination statutes impermissibly infringe on First Amendment rights? Would Phillips possess a claim under a state or federal RFRA statute? However, these questions really just aren’t implicated here.

That four Justices took this case is troubling. That the case languished in re-list purgatory until after Justice Gorsuch took the bench is even more troubling. This suggests that before his arrival, the court felt that it would be headed for a 4-4 deadlock. Now, it looks like there may be five in Phillips’ favor. True, the Court could issue a very limited decision reversing and remanding based on some specific error it found in the Colorado courts’ reasoning or specific application of law. That might be one of the better-case scenarios at this point, and the Court has done this in some other cases recently, like Hernandez v. Mesa and Los Angeles v. Mendez. Or it could go the Trinity v. Comer route and include a footnote limiting the holding to the specific set of facts at issue. But as I said above, the Supreme Court really isn’t here to discuss the finer points of the logic of the Colorado Civil Service Commission. Thus, you have to think that the Court is ready to reach the merits of this case head-on, with at least a few of the Justices primed to rule in Phillips’ favor. That is nothing to celebrate.

Trinity Lutheran v. Comer: We Talkin’ About Playgrounds?

The Court ruled this week in Trinity Lutheran v. Comer, the church playground tire case that I previously wrote about. This post will discuss the majority opinion’s attempt – perhaps a futile one – to blunt the extent of its holding via what I’ll call a “limiting provision”, and I’ll discuss other cases where the Supreme Court has similarly attempted to artificially limit the scope of its holding essentially by saying as such, even if the actual rationale of the court suggests otherwise.

I. Trinity Lutheran: What’s Behind Footnote Number 3?

But first, some background. In Trinity Lutheran, a church applied for a state grant for reimbursement to buy tire scraps to use as a safe surface for its playground. What some might generously call the center of the Court – Chief Justice Roberts writing for Justices Kennedy, Kagan, and Alito (I know, I know, he’s not moderate, but he sure ain’t Justices Thomas or Gorsuch) – found that prohibiting Trinity Lutheran Church from the Missouri tire scrap program solely because it was a church ran afoul of the Free Exercise clause of the First Amendment. Justice Breyer, also certainly considered to be a moderate, concurred in the judgment only. Justices Ginsburg and Sotomayor dissented. That leaves Justices Thomas and Gorsuch, and it gets us to Footnote 3 of the majority opinion. Thomas and Gorsuch concurred with the entirety of Chief Justice Roberts’ majority opinion… except for footnote 3.

Footnote 3 stated, “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.” The intent of this footnote was clearly to placate the more liberal members of the majority. See, this case is seen by some as a wolf in sheep’s clothing, an attempt by the religious right to destroy the wall between church and state. The thinking goes, once the court blesses – indeed, mandates – government funding of a church, then the Establishment Clause ceases to have the same effect. Sure, this is about playgrounds, but the next case will be about government funding of prayer books, or religious schools, etc. Plus, the court is now requiring the government to pay churches; that money – while earmarked for playground tire scraps – can now be used for any religious purpose whatsoever. So, footnote 3 basically says, to paraphrase Allen Iverson, “we talkin’ about playgrounds.”

But is that actually persuasive? Just because the majority claims that the holding doesn’t apply to religious uses, that doesn’t mean the majority’s rationale wouldn’t also then apply to such uses in a later case. Essentially, all the Court is saying is that it isn’t right now applying its rationale to more religious uses of funds. The Court’s rationale in the case is that denying government funding based on religious status is subject to the “most rigorous scrutiny.” That test would presumably apply to any denial of government funds to religious organizations. Who says that avoiding Establishment Clause concerns is a compelling interest? So, Footnote 3 rings somewhat hollow.

That got me thinking – when has the Court as used similar limiting language in other opinions, and what has been the effectiveness? The two big cases that come to mind are Bush v. Gore and U.S. v. Windsor, the Defense of Marriage Act case. Both times, the Court’s attempts to limit its Opinion to its particular facts was not very effective, but its up for debate if it was actually intended to be, or whether it was a way of placating certain members of the Court.

II. Bush v. Gore: “You Guys Should Just Totally Ignore What We’re Saying Here.”

We all remember Bush v. Gore. Considered by many to be a disgracefully political moment for the Court, the case was technically about whether “the use of standardless manual recounts violates the Equal Protection and Due Process Clauses.” The Court found an Establishment clause violation, but instead of treating its opinion like any other, the Court tried to avoid giving precedential value to its own opinion: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” Being embarrassed about the logic of one’s argument typically doesn’t help the legitimacy of said argument, but hey, there was a presidential election to be decided.

Regardless of the Court’s intent, Bush v. Gore has now been cited repeatedly, and CaseText lists 337 cases referencing or citing to it. While that’s not nothing, another big case from 2001, Kyllo v. United States, has been cited 1,060 times, though that’s one with more applicability than Bush v. Gore. On the other hand, a big case from OT1999, Boy Scouts v. Dale, has only been cited 309 times. So, it’s fair to say that Bush v. Gore has indeed been cited with some degree of normalcy.

III. U.S v. Windsor: Justice Scalia Is Bad At Checkers And Worse At Chess

Then there’s U.S. v. Windsor, the DOMA case. There, the Court was tasked with determining whether a federal law not recognizing same-sex marriages violated the Equal Protection and Due Process clauses. Famously, after the Court provided a number of reasons why refusal to recognize same-sex marriages violated the Due Process Clause of the Fifth Amendment, the Court then ended its Opinion by stating, “This opinion and its holding are confined to those lawful marriages.” This was intended to mean that the opinion did not apply to states’ non-recognition of same-sex marriages and only applied to federal non-recognition.

This was laughably transparent at the time, and everyone and their mothers (plural) knew that the court was eventually going to find that states’ prohibition of same-sex marriage was unconstitutional. The Court just spent 25 pages (adeptly and convincingly) explaining the obvious reasons why refusing to recognize same-sex marriage was blatantly unconstitutional. Then the Court ends the opinion with, “oh yeah, we are only talking about the federal government here (wink).”

In his dissent, Chief Justice Roberts saw what was obviously going on, but didn’t take the bait. Seeing that lower courts would inevitably use the majority opinion’s logic in subsequent same-sex marriage cases against states unless the court’s limiting language was taken seriously, the Chief Justice tried to convince the world to take the majority at its word: “But while I disagree with the result to which the majority’s analysis leads it in this case, I think it more important to point out that its analysis leads no further… In my view, though, the disclaimer is a logical and necessary consequence of the argument the majority has chosen to adopt.” Ok, sure.

While the Chief Justice played chess, Justice Scalia played checkers. Justice Scalia essentially wrote future plaintiffs’ briefs for them, explaining how the rationale of the majority opinion could  in fact be applied in challenges to states’ same-sex marriage bans. He went so far as to cross out references to DOMA in the majority opinion and insert “the state’s laws”, thus demonstrating how the majority opinion really does demonstrate why same-sex marriages bans are unconstitutional. Pointing out the obvious – which everyone else was smart enough to understand but not verbalize – Justice Scalia’s dissent was ultimately used by countless lower courts to demonstrate why state same-sex marriage bans were indeed unconstitutional.

Honestly, I find it hard to believe that Justice Kennedy didn’t know at the time that he believed all same-sex marriage bans to be unconstitutional. After all, two years later to the day, he wrote his opinion in Obergefell striking down all same-sex marriage bans. More likely, the language in Windsor was intended to try and placate conservative justices. Obviously, it didn’t quite work, but it also didn’t matter.

IV. Alright, Back To Trinity Lutheran

This gets us back to Trinity Lutheran. I have a feeling that Footnote 3 was negotiated to placate Justice Kagan and possibly Justice Kennedy. The Court recently did something similar in LA v. Mendez, an excessive force case, where it had a random, un-numbered footnote basically saying that the Court wasn’t holding that the particular facts of the case constituted reasonable force; rather, if a lower court finds that the force used was reasonable, then the plaintiff had no other avenue of maintaining an excessive force claim.

It seems inevitable that the Court will again revisit the issue of governments refusing to fund religious organization’s religious use of funds, and the need to draw clear lines will become more important. So, the Court’s logic here may indeed be used later. The Chief Justice does that adeptly – using his own logic in a prior case as a jumping off point to ultimately do something big and conservative. For example, he used his own rationale in Northwest Austin v. Holder to ultimately strike down the Voting Rights Act’s pre-clearance provisions four years later in Shelby County v. Holder. Again, chess not checkers.

So, at this point, it remains to be seen what the ultimate effect of the Court’s Opinion in Trinity Lutheran will be, and same with Footnote 3. But, don’t be surprised if a few years down the line, the Chief Justice sheds that footnote and uses this case to find for religious institutions in cases down the road.

The Supreme Court Decides Lee v. U.S.: Freedom’s Just Another Word For Nothing Left to Lose

Back in March, I reviewed Lee v. U.S., which at the time was about to be argued before the Supreme Court. The case involves a nearly life-long U.S. permanent resident who pled to CDS possession with intent to distribute with the incorrect understanding that doing so would expressly avoid the possibility of deportation, when in reality it guaranteed deportation. The Defendant, Jae Lee, who also owned a restaurant (Let’s review: immigrant restaurant owner and drug dealer not named Gus Fring) and had deep connections to the U.S., had no defense and almost certainly would have been convicted and deported anyway. The government admitted ineffective assistance of counsel, so the only issue left under Supreme Court precedent – specifically Strickland v. U.S. – was whether the defendant had been prejudiced. That hinged on whether losing one’s ability to throw a Hail Mary and risk it at trial constituted prejudice.

This week, the court ruled in Lee’s favor, resolving a deep circuit split on the issue. (Also, “Circuit Split” should either be the name for the banana split at the Supreme Court cafeteria or the title of a rom-com where an appellate judge divorces and then falls back in love with an electrician).  Chief Justice Roberts, writing for the entire Court except Thomas and Alito, stated that to an individual with deep ties to the U.S. and virtually no ties to his/her original county, risking a plea deal in order to hang onto a sliver of hope of avoiding deportation is perfectly rational. “But for his attorney’s incompetence, Lee would have known that accepting the plea agreement would certainly lead to deportation. Going to trial? Almost certainly.” (I’ll pat myself on the back here, since in my initial post about this case I said that “it’s the ‘almost’ part of ‘almost certain’ that is key.”). The Court also relied on the fact that Lee really did make it clear that his decision was truly based on the mistaken belief that the plea would avoid deportation. Because the attorney’s incorrect advise foreclosed Lee from making a rational decision as to whether to proceed to trial, Lee could make out his Strickland claim.

Justice Thomas, joined by Alito, dissented. Notably, Alito joined the entirety of Justice Thomas’ dissent except Thomas’ position that “the Sixth Amendment to the Constitution does not require counsel to provide accurate advice concerning the potential removal consequences of a guilty plea.” That is a staggering claim, and one in which only one sitting Justice seems to hold. The rest of Justice Thomas’ dissent centered on the fact that Lee had no reasonable chance at trial and was therefore not prejudiced — essentially, what the Sixth Circuit said. Justice Thomas believed that the majority announced a “novel standard” for constitutional ineffectiveness of counsel claims; if there’s ever a way to ensure a Justice Thomas dissent, just say the words “novel” and “constitution” in the same sentence.

The case shouldn’t have too many doctrinal implications, but it does make clear that prejudice in Strickland cases can include being denied an understanding of the consequences of a plea versus a trial, beyond simply pleading guilty. As the Court stated, “[t]he decision whether to plead guilty also involves assessing the respective consequences of a conviction after trial and by plea. When those consequences are, from the defendant’s perspective, similarly dire, even the smallest chance of success at trial may look attractive.” That’s ultimately the takeaway from this case.

Finally, what will actually happen to Lee now is an open question. A new trial will soon be ordered, and the case could go to trial, where the overwhelming odds are that Lee will be convicted and then deported. Or, the government could decide to offer a plea to a reduced charge  without the possibility of deportation. Lee voluntarily chose to remain in U.S. detention for six additional years after serving his one-year sentence rather than accept deportation, and so at this point he has already endured a lengthy prison term. It is reasonable for the government to simply offer time served on a reduced charge not carrying the possibility of deportation.