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 (Barely) Rules On Hernandez v. Mesa

A few months ago, I wrote about Hernandez v. Mesa, the case of a cross-border shooting of a Mexican teen by a U.S. Border Patrol agent. Today, instead of issuing a big opinion on the rights of aliens abroad or police shootings or extraterritorial jurisdiction, the quietly Court issued a per curiam slip opinion vacating the lower court’s ruling and remanding in the least exciting way possible.

When I wrote about this case last, I warned that the court might “punt[] like Ray Guy” or issue a very narrow ruling on Bivens grounds (I also suggested that the Court might also issue a big ruling on extraterritorial jurisdiction, so what do I know?). Well, that’s what they did. If you recall, in granting cert, the court added the question of whether plaintiff’s claims could be asserted under Bivens, even though the circuit court did not address that question below.

Today, the Court remanded the case back to the Court of Appeals. It reasoned that the Bivens question was an “antecedent” to the remaining (and more interesting) issues, yet the lower court did not have an opportunity to consider how the Supreme Court’s recent decision in Ziglar v. Abbasi may bear on the Bivens claim in this case.

This is most certainly a punt. Except for one tiny bit of substance (which I’ll get to in a second), this opinion did nothing but put the ball back in the lower court’s…court and instruct it to rule on Bivens this time around. This hurts the plaintiff’s chances, since Ziglar limited the availability of Bivens claims for plaintiffs.

There was, however, some substance to this opinion. In dealing with the Fifth Amendment claim, the Court of Appeals had held that the officer was entitled to qualified immunity because the Mexican teen had no connections to the U.S. and was not a U.S. citizen. However, this information regarding the teen was not actually known to the officer. Thus, because qualified immunity centers on the facts knowable to the defendant officer, and the officer did not know that the teen had no connections to the U.S., the lower court erred. However, all that earned the plaintiff was the ability to have his Fifth Amendment Bivens claim evaluated based on Ziglar too.

Justice Thomas briefly dissented, arguing that the Court should have just gone ahead and affirmed the lower court because the plaintiff had no Bivens claim. Justice Breyer, joined by Justice Ginsburg, dissented for an opposite reason: they held that the plaintiff did have valid constitutional claims, and they believed that the Court should have ruled as such and then remanded for consideration of the Bivens and qualified immunity issues. Breyer then appended to his opinion a 54-year-old drawing of the channel in question, as well a black and white photo from 1968 of President Johnson and Lady Byrd Johnson viewing the channel. For what its worth, the President is waiving to no one in particular, and the First Lady looks miserable.

This marks a disappointing end (for now, at least) to this case. It would have been quite interesting to see the Court square extraordinarily sympathetic facts with very thorny issues of immigration, police excessive force, and jurisdiction. However, resolving an interesting case that felt like a fun law school hypothetical was apparently not worth the potentially major doctrinal implications.

Wait, did I just call law school fun?

-Ryan

SCOTUS Hints At Middle Ground In Travel Ban Ruling

On Monday, the last day of the term, the Supreme Court granted cert on the travel ban cases and partially granted the government’s petition for a stay, meaning that portions of the travel ban will go into effect. The court issued a per curium opinion explaining its decision (while avoiding the substantive issues). Gorsuch, Thomas and Alito partially concurred (they wanted a full stay). That cert was granted was not surprising, but certain aspects of the substance and breakdown of the court’s opinion were telling.

The primary takeaway is that the scope of the stay closely tracks the plaintiffs’ theory of the case on the constitutional issues while also suggesting that the court is not inclined to find in the plaintiffs’ favor on the statutory issues. In terms of the stay, the Court allowed the government to bar those individuals with no “bona fide” connections to the United States, but did not permit the barring of those with said connections. This is interesting because it mirrors Plaintiffs’ constitutional arguments and suggests that the Court will find in Plaintiffs’ favor on the Mandel/Din test that has been the focus of much of the briefing by the parties.

As explained before, the two main substantive issues  are that 1) the ban is invalid statutorily, in its entirety, and 2) that it is invalid constitutionally, for those with connections to the United States. The Fourth Circuit relied on the constitutional claim while the Ninth Circuit relied only on the statutory issue, ruling that Trump simply lacked the authority to issue the travel ban. Such a statutory ruling would necessarily invalidate the entire travel ban. I had suggested that the statutory issue may be an attractive option for the court since it would avoid ruling on the constitutional issues.

But, from the looks of it, I am probably wrong, and the Court seems destined to rule on the constitutional issues, on Plaintiffs’ terms. Although the government argued that the courts did not even have the power to review the ban, ultimately most observers agreed that the constitutional case would ultimately come down to a test set forth in two cases, Mandel and Din, which I have described before. Notably, however, because the Supreme Court has repeatedly ruled that non-resident, un-admitted aliens possess no constitutional rights themselves, only those in the United States with connections to the aliens would have standing to sue. When such connections do exist, the court evaluates the claim by determining whether there is a “facially legitimate and bona fide reason” for the ban. The plaintiffs have argued that the government’s reason was not bona fide because it was actually motivated by anti-Muslim prejudice; obviously the government disagreed, and the key issue in this case is probably whether the government can prove their bona fide reason.

That gets us back to the scope of the stay. The Court declined to continue the injunction against the ban entirely, which it probably would have done had it thought that the statutory argument had merit. Instead, the Court allowed in those with connections to the U.S.; in other words, those who could win under the Mandel/Din test are protected, while those unprotected by such a test are similarly unprotected by the injunction.

A fight squarely on the “bona fide” requirement is not what the government wants at all. In its initial arguments on the original EO, the government bizarrely argued that the courts do not have the authority to review the travel ban at all, and then the next round argued that the travel ban was valid because it was authorized under statute, conveniently ignoring that the constitution trumps (sorry) statutes. Discussing the bona fides of the government’s reasoning opens it up to a discussion of Trump’s public statements. The fact that the Court evaluated the stay petition, implemented it partially, yet kept the injunction in place as to this aspect does not bode well for the government.

It bears noting that Justices Thomas, Alito and Gorsuch dissented to that portion of the ruling, believing that the entire lower court injunction should be stayed, and that thus the entire travel ban should be put into effect. At this point, you have to assume that the government already has three votes going into oral argument.

Finally, the Court also ordered briefing on whether the travel ban litigation became moot on June 14, when the travel ban technically expired. This mootness issue was raised by the State of Hawaii at the Supreme Court and touches on a bigger problem for the government: the stated purpose of the ban was to provide the government time to conduct a review, and it has had – and will have had – plenty of time to conduct a review. Thus, by the time the case is argued, why is the ban even necessary at that point? As I (and many others) wrote a couple weeks ago, the DOJ has put itself in a pickle here, and the mootness issue suggests that the court is cognizant of that fact. The Court even noted in it opinion that the government did not ask for expedited argument. The government may have a hard time arguing that the ban has any purpose being applied prospectively.

Further, the Court may see this as a way to ultimately give both sides what they want. After all, argument will be four months from now, longer than the actual ban itself. So, over the summer, the government will effectively get its travel ban, for those with no connections to the United States. Then, at that point, the court would presumably be saying that the travel ban is no longer in effect and the lower court rulings prior to June 14 would remain good law. 

Look, obviously, the ultimate ruling on the merits will not automatically mirror the scope of the stay, and the addition of a question presented does not guarantee a particular answer to that question. So, take all of this with a giant grain of salt (Maldon or pink Himalayan, both known for their size, are probably the way to go here). But, both of my observations above – about the scope of the stay and the addition of the mootness question – suggest that the court is trying to forge a middle ground.

-Ryan

SCOTUS Takes Up Political Gerrymandering, Round 3

In many politically important cases before the Supreme Court, prognosticators often (correctly) surmise that Justice Kennedy will be the swing vote. However, on Monday the court took up a redistricting case, Gill v. Whitford, where we not only think Justice Kennedy will be the swing vote, he already has been the swing vote on the very same issue before the court and will surely be so again here.

The issue of political gerrymandering has made its way up to the high court on numerous occasions previously. However, the standard for political gerrymandering claims has actually yet to be definitively decided, despite the court’s best efforts on at least two prior occasions.

In Davis v. Bandemer, 478 U. S. 109 (1986), the Supreme Court dealt with the question of whether partisan redistricting could ever give rise to a justiciable equal protection claim. The court, 6-3, held that such claims were indeed justiciable, but could not agree on the appropriate legal standard. So, essentially, we agree that there is a standard, but we can’t agree on what it is yet.

The four-Justice plurality concluded that plaintiffs could win only upon a showing of “both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.” So, intent and effect. The concurring opinion, on behalf of two Justices, agreed with the plurality that a plaintiff should show intent and effect, but believed that the intent of the legislature must have been solely for partisan ends.

Eighteen years later, the court tried again in Vieth v. Jubelirer, 541 U.S. 267 (2004). However, the court fractured there as well and actually took a step backwards. By a vote of 5-4, five justices rejected the plaintiffs’ political gerrymandering claim and also agreed that no discernible, manageable standard existed at all. These five justices rejected every possible standard presented to them, including the standards previously proposed by the plurality and concurring opinions in Davis.

That is where things go haywire. Of those five justices, a four-justice plurality found that no discernible standard could be established and that partisan gerrymandering claims were simply not justiciable. However, Justice Kennedy – the fifth vote against the plaintiffs – found that while no adequate standard had yet been devised, future courts should not be foreclosed from identifying one. The four liberal justices found that an adequate standard already existed.

Essentially, the four conservative justices found that no adequate standard existed or could ever exist, and the four liberal justices thought that there already existed an adequate standard. Then there was Justice Kennedy, all by himself, finding that no adequate standard currently existed, that it might exist in the future, that he didn’t know what it was, and that he was not preventing courts from developing such a standard.

In discussing what type of standard would be appropriate, Justice Kennedy implored courts to exercise “great caution” so as to avoid an “unprecedented intervention in the American political process.” Thus, Kennedy wrote,

“A determination that a gerrymander violates the law must rest on something more than the conclusion that political classifications were applied. It must rest instead on a conclusion that the classifications, though generally permissible, were applied in an invidious manner or in a way unrelated to any legitimate legislative objective.”

Kennedy could not identify such a standard at the time. However, “[t]hat no such standard has emerged in this case should not be taken to prove that none will emerge in the future.”

So, that is where we are now: asking whether Justice Kennedy can be convinced that an appropriate, manageable standard has now been identified. Enter Gill v. Whitford.

The case deals with the Wisconsin State Assembly redistricting plan. Wisconsin is a closely divided swing state. Obama won Wisconsin in 2008 and 2012, and Trump won in 2016; the state has one democratic and one republican senator, and statewide vote totals typically hover around 50/50. However, due to a redistricting plan, “Act 43”, in 2012, 2014 and 2016, Republicans won over 60% of the seats even though the statewide vote remained nearly tied.  The District Court found that Act 43 “was intended to burden the representational rights of Democratic voters.” The three-judge District Court panel then struck down Act 43.

After Act 43 was struck down by the District Court, Wisconsin petitioned for cert to the Supreme Court and also asked for a stay of the District Court’s ruling. The court granted cert on Monday and also granted the stay petition by a 5-4 margin, with Kennedy in the majority along with the other conservatives. Given the court’s breakdown on the stay motion, it seems reasonably clear that the four liberals will be voting to uphold the ruling of the District Court on its merits.  Thus, Kennedy is again in the middle of a deeply divided court.

That gets us to the legal standard adopted by the District Court and now being reviewed by the Supreme Court. The District Court required a plaintiff to demonstrate: 1) discriminatory intent, 2) a large and durable discriminatory effect, and 3) a lack of a legitimate justification. This hinges on intent and effect like the rejected standards of yesteryear, but it also requires a third prong  seemingly tailored to Kennedy’s Vieth concurrence: a lack of a legitimate justification.

This may pass muster because it closely tracks Kennedy’s own words in Vieth and is, as a practical matter, an extraordinarily tough standard for plaintiffs to meet. Under this standard, a legislature’s redistricting plan would be upheld if the state could simply demonstrate a legitimate, non-invidious reason for it. This is similar to but more difficult than even the familiar “rational basis review”, which upholds governmental action against non-suspect classes when it is rationally related to a legitimate governmental purpose. Under both standards, providing the court with a legitimate reason for the conduct is sufficient to withstand judicial scrutiny. In fact, under the proposed rule here, the plaintiffs would then also be required to demonstrate discriminatory intent and effect. 

Based on his history on this issue, Justice Kennedy is not going to endorse an easy standard for plaintiffs in these cases, so proposing one would be pointless.  Indeed, the proposed standard here would uphold all but the most brazen gerrymanders, and that may be the point.

Ultimately, we know that Justice Kennedy wants to thread the needle between the protection of fundamental individual rights and the unnecessary judicial intrusion into the political process. Whether that is done here remains to be seen, but rest assured that it will be Justice Kennedy making that decision on behalf of the court.

Trump Travel Ban, Part Infinity: Yossarian Edition

I wrote earlier this week about how the Ninth Circuit’s ruling on the travel ban would affect the proceedings in the Supreme Court. When discussing the narrowing of the injunction to permit the White House to conduct an internal review of visa screening procedures, I argued that it would now be incumbent on the Trump Administration to promptly commence such a review or else risk blowing up the facial raison d’être for the ban. I still believe that to be true. However, after reading subsequent filings by the parties in the Supreme Court and commentary regarding same, I have realized that the narrowing of the injunction places the White House in a much bigger pickle than I initially believed.

As background, Trump’s stated reason for the original 90 day travel ban and its successor EO was that the White House needed to conduct a review of visa vetting procedures. In a well-reasoned tweetstorm, the indispensable and increasingly omnipresent Steve Vladeck aptly explained the government’s stated reason for the ban: “the travel/entry ban was not an end unto itself, but a means to help carry out the real goal of the EO: new vetting rules.” (Yes, I just quoted a tweet, but that seems perfectly legitimate given the subject matter. The Ninth Circuit says they’re admissible now.)

While the original ban itself was enjoined by the Western District of Washington before it ever began, the review process was not, and the White House remained free to conduct such a review. Once a new travel ban was announced, the District of Hawaii then implemented an injunction which not only blocked the ban but also blocked the review process from occurring as well, roughly 45 days after the first EO’s review was to initially begin. As of the Ninth Circuit’s ruling on Monday, however, the DOJ is now free to proceed with the review. As noted above, the Trump Administration needs to begin this review or else it proves that it was merely pretext for the ban. Indeed, today the DOJ has indicated that it will now conduct the review because of the Ninth Circuit’s narrowing of the Hawaii injunction.

However, Vladeck pointed out that by conducting the review, the Trump Administration undermines the entire purpose for the ban. If the White House is indeed able to conduct this review process now, then why was the ban ever actually necessary? The whole point was to conduct the process that it is now conducting without such a ban being in place.

This point is compounded by the fact that the DOJ has not asked for expedited argument. This means that the 90-day review period will surely have concluded prior to a decision by the court. At that point, what is the point of the travel ban at all? The ban was to facilitate a review process which will have already concluded by the time the court decides the issue.

Hawaii’s counsel yesterday made a similar point: because more than 90 days have passed since the original EO and nearly 90 days since the second EO, this whole case will be moot by the time it gets to the Supreme Court. While I do not think that this argument holds water especially given the Hawaii stay of the review process, the point is clear: the Supreme Court will be deciding the fate of a travel ban which would have – on its face – already concluded had it been allowed to run its course.

This puts the White House in a Catch-22. If it does not conduct the review, then it risks destroying the stated rationale for the ban. If it does conduct the review and the ninety-day period concludes, then the ban is no longer necessary. The one acceptable middle position would have been to seek expedited argument so that the review would be ongoing at the time of argument, but the DOJ elected not to take this tact.

The DOJ could and likely will argue that while it is conducting its review now, said review will not be fully efficient or effective until a shutdown is implemented. But oral argument may not be until October, nine months after the original ban; can the DOJ credibly argue at that point that its ability to conduct a review which would have taken three months under optimal conditions has been so hamstrung that it couldn’t be completed in nine? I don’t think so.

Vladeck does seem to suggest that the DOJ was simply wrong in commencing the review process, which in turn would mean that the Catch-22 I described above wouldn’t really exist. I disagree. The argument that the White House is conducting a review – albeit a hobbled one – is much stronger than simply doing nothing when it is permitted to act. Conducting the review now, immediately after the Ninth Circuit’s narrowing of the injunction, is the one bit of urgency that the DOJ or White House has expressed during this saga. It makes more sense to argue that it had a national security imperative to begin a flawed review immediately rather than waiting for the Supreme Court to enable an unfettered review many months from now. Regardless, neither way is optimal, and that’s my entire point – the DOJ is now in prime “damned if you do, damned if you don’t” territory.

Finally, this situation is one of the White House and DOJ’s own making. Their stated rationale for the ban was the urgent need to conduct a temporary review of vetting procedures, in the name of national security. That rationale probably doomed the ban from the start, because it lit a ninety-day fuse for the destruction of the ban’s stated usefulness. The White House and DOJ also bungled the rollout, failing to actually conduct such a review in the 45 day window it had, and then repeatedly refusing to take steps to expedite the inevitable path to the Supreme Court. The DOJ’s dilly-dallying – knowing that the clock was ticking until the court’s summer recess, not seeking immediate Supreme Court review, not asking for expedited argument, and then asking in mid-June for a delay in briefing (!) – undermines its own arguments that this is an urgent national security concern.

Ultimately, the White House may still win at the end of the day. But if they do, then it seems likely that such a result was preordained from the start, since neither the White House nor the DOJ has done themselves many favors.

-Ryan

Ninth Circuit Affirms Injunction Blocking Trump Travel Ban 2.0

On Monday, a Ninth Circuit panel mostly upheld the preliminary injunction against the Trump travel ban. Notably, the court did three things which were ostensibly designed with an inevitable Supreme Court showdown in mind: 1) it did not reach the constitutional issues, instead relying entirely on statutory grounds; 2) it struck down the ban without relying on Trump’s campaign statements, and 3) it slightly narrowed the scope of the injunction. These are all important, as will be set forth below.

I. Taking The (Statutory) Road Less Travelled

Much of the buzz about the travel ban has dealt with its constitutionality – whether it violates the Establishment Clause of the First Amendment. However, the travel ban has also been challenged on statutory grounds. While the Fourth Circuit’s ruling addressed only the constitutional issues and did not reach the statutory issues (as did the Ninth Circuit panel in the travel ban 1.0 case), the Ninth Circuit’s ruling this week did just the opposite. It was the first appeals court decision on either travel ban to address only the statutory arguments.

This is important because it lets the Supreme Court do three things that it loves to do: let issues “percolate” in the lower courts before taking them, exercise constitutional avoidance, and avoid sweeping devisions with unwanted or unintended consequences.

A. It’s Time For The Percolator

First, the court loves to let lower courts weigh in on big issues first. For some reason, every Supreme Court analyst and their mother refers to this as lower court “percolation”. Essentially, what lower court “percolation” means is that the Supreme Court does not like taking cases until at least one appeals court decides it first. It is quite likely that the Supreme Court would have wanted the thoughts of the lower courts on the statutory issue, but prior to this week no appeals court had decided either travel ban on statutory grounds. That has now changed, the statutory issue has been percolated, and the Supreme Court is now ready for its morning coffee.

B. Avoidance Like the Plague

Second, the court loves to avoid deciding constitutional issues when it can. Similarly, the court typically seeks to avoid controversial or deeply political issues, which it fears may affect its legitimacy. A ruling on statutory grounds would let the Supreme Court avoid a sweeping constitutional ruling and also partially mitigate the inevitable political fallout from its decision. Thus, the Ninth Circuit has provided the Supreme Court with a roadmap to strike down the travel ban while doing so on narrow, more palatable terms.

C. “We Write Some Words…”

Relatedly, the Supreme Court also tends to avoid issuing sweeping opinions with unforeseen or unwanted ramifications beyond the facts at hand. As Justice Breyer stated during oral argument in another case this year, “[w]e write some words…. The problem is other people will read those words, and there are all kinds of things that happen…” This is the Supreme Court’s general concern in a nutshell – that its rationale will be applied to circumstances well beyond just the facts of the particular case being decided.

A broad ruling on the constitutional issue would then apply to many other contexts, from subsequent presidents’ immigration decisions to equal protection claims generally. Trump’s presidency, obviously, is quite different than most presidencies; the Supreme Court will not want its opinion here to hamstring future presidents in engaging in run-of-the-mill immigration decisions or national security determinations. Essentially, the trick is to strike down the travel ban (if it is so inclined), while limiting the applicability of this ruling to different contexts. That is easier said than done.

II. Trump’s Campaign Statements

The issue of unwanted consequences also arises when discussing Trump’s campaign statements. Unlike the Fourth Circuit, the Ninth Circuit did not rely on Trump’s campaign statements in striking down the travel ban. There is a very real concern that the court’s reliance on Trump’s campaign statements will open the doors to using campaign statements against public officials in all sorts of litigation pertaining to government decision-making. The Supreme Court will be loathe to weaponize campaign statements by political candidates, and it will avoid using Trump’s campaign statements entirely if it can. To that end, the Ninth Circuit omitted such references. Again, this signals to the Supreme Court that it can strike down the ban while staying out of the thorniest part of the thicket.

III. Narrowing the Injunction

Lastly, the Ninth Circuit narrowed the scope of the lower court’s injunction, in that it now permits the White House to conduct an internal review of visa vetting procedures. This review served as the facial reason for the ban, which was to last 90 days (and 120 days for the Syrian refugee program) while the review was conducted.

Today, the clock begins ticking anew. At this point, there is no evidence that such a review ever began in the first place, but the government may have gotten lucky when it was barred from doing so by the District of Hawaii. Now, that excuse melts away, and it will be incumbent on the government to begin that vetting review in earnest. In the Supreme Court, the plaintiffs will certainly argue that if the ban was really about the review process – and not just pretext for banning Muslims – then the review would have begun immediately and would already be concluded. If there is little or no evidence that such a review has taken place at the time of Supreme Court briefing or oral argument, then the government’s stated rationale for the ban will be destroyed.

This aspect of the ruling is also important because keeping the injunction as-is would have certainly given the Supreme Court a good reason to grant certiorari. Barring the President from internally reviewing visa vetting procedures – which does not adversely affect anyone in and of itself – was something that didn’t make much sense. Although the Supreme Court is likely going to grant cert anyway, there is now one fewer reason to do so.

-Ryan