ncsupreme court update - unc school of government · • vacancy • last term (ending june 30) ......

10/4/2016

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Supreme Court UpdateLisa Soronen

State and Local Legal Center

[email protected]

What to Talk About?

• Vacancy

• Last term (ending June 30)

• This term (opening October 3)

• North Carolina only

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Vacancy & What’s Next for the Court

Death of Justice Scalia

• How does it affect the states?• Conservatives good

• Federalism and preemption

• Qualified immunity

• Employment

• Religion in public spaces

• Conservatives bad

• Land use

• Tax

• Free speech

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Death of Justice Scalia

• His idiosyncrasies

• Originalism and textualism are a mixed bag

• Fourth Amendment—supported cutting back the exclusionary rule; believed in a right to privacy

• Liked guns

• Hated the EPA

• Conservative on social issues

Scalia Jurisprudence

• Congressional Research Service

• Justice Antonin Scalia: His Jurisprudence and His Impact on the Court

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Who is Merrick Garland?

• He is seen as:

• Moderate, uncontroversial (left of Kennedy; right of Breyer)

• No overall judicial philosophy

• Rarely dissents

• Rarely reviewed by SCOTUS; Justices tend to agree with him

• We may know less about him than we think

• Don’t know his views on many controversial issues abortion, capitol punishment, etc.

Judge Garland

• Congressional Research Service

• Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court

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What is Likely Next?

• Trump presidency

• No Garland

• Clinton presidency

• Will she ask Obama to pull the Garland nomination?

• Might depend on whether the Senate becomes a Democrat majority

• I think he will be confirmed regardless

• Sen. Grassley

• If Hillary wins the Senate might hold hearings in the lame duck

End of the Kennedy Court

• Unless Donald Trump wins!

• Before Kennedy it was O’Connor also a moderate/conservative

• One of the most powerful people in American during the last decade?

• Shaped the law in a way no one else could because of his position as the swing Justice

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End of the Kennedy Court

• Last two terms have been the most liberal since the 1960s

• Let’s assume Justice Kennedy has become more liberal; Why?

• Justices tend to become more liberal as they age

• Legacy

• He wants to do things

Not So Fast…

• Lots of cases—even recent ones—highlight Kennedy’s more conservative views

• Shelby County

• Glossip

• First ACA case

• Overall record will be conservative

• Keen sense of the country’s pulse on social issues

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7-2 Liberal Court

• Based on age alone Justices Ginsburg, Breyer, and Kennedy could easily leave the Court in the next four years

• Justice Thomas retirement rumors

• If Hillary appoint Scalia’s replacement it will be the first time since about 1970 that 5 Justices have been appointed by a Democrat

• Most certain change: different cases will be brought

7-2 Liberal Court

• Big three: are they safe?

• Citizen’s United

• Heller

• Death penalty

• What areas of the law would be expanded?

• SCOTUSblog symposium on the future of the Court

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Last Term

Term Statistics

• Six—arguably seven—big cases; only one had no impact on the states

• 70 cases argued (typical)

• Highest agreement Justices Kagan and Kennedy; lowest agreement Justices Ginsburg and Thomas

• 48% of cases were 9-0 (typical)

• Only 4 cases this term were 5-4 (20% typical)

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Impact of the Vacancy on the Court

• Docket was already set for last term when Justice Scalia died

• Court could not just avoid taking controversial cases

• Four 4-4 case; two received no media attention at all

What To Talk About?

• Big cases

• Just a few of them

• Likely to affect state legislation

• Not as many as usual?

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Not Talking About

• Death penalty

• Lots; mostly state specific

• A few just came up in the death penalty context

• Redistricting

• None were as big as they could have been

• Bed and butter

• Qualified immunity, employment, Fourth Amendment

Big Cases

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Evenwel v. Abbott

• Biggest case for state legislatures

• Could have been much bigger

• Stanford Daily: In With a Bang, Out with a Whisper

• Holding: States may apportion state legislative districts based on total population

Evenwel v. Abbott

• In Reynold v. Sims (1964) the Court established the principle of “one-person, one-vote,” requiring state legislative districts to be apportioned equally so that votes would have equal weight

• What population is relevant?• Total population or voter-eligible population

• Total population includes numerous people who cannot vote—notably non-citizens and children

• The maximum total-population deviation between districts was about 8 percent (up to 10 percent is presumed constitutional); the maximum eligible-voters deviation between districts exceeded 40 percent

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Evenwel v. Abbott

• Most people considered the law in this area settled

• Over the span of decades the Court had denied cert on this issue repeatedly

Evenwel v. Abbott

• Rationale focused on “constitutional history, this Court’s decisions, and longstanding practice”

• Section 2 of the 14th Amendment explicitly requires that the U.S House of Representatives be apportioned based on total population

• In no previous cases alleging a state or local government failed to comply with “one-person, one-vote” had the Court determined if a deviation was permissible based on eligible- or registered-voter data

• State and local governments redistricting based on total population is a settled practice

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Evenwel v. Abbott

• Unanimous

• Written by Justice Ginsburg

• Tribute to Justice Scalia?

• Formalistic opinion, but did pragmatism carry the day?

• Court did not decide whether states may redistrict using voter-eligible population

• Weren’t the votes to hold that states must only use total population

Whole Women’s Health v. Hellerstedt

• Texas’s admitting privileges and ambulatory surgical center requirements create an unconstitutional undue burden on women seeking abortions

• 5-3 ruling

• Breyer writes

• Kennedy is in the majority

• Justice Scalia’s vote would not have mattered

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• Admitting privileged—what’s the problem? (Not required in NC)

• No patients

• Religious grounds

• Ambulatory surgical center (ASC)—what’s the problem? (Required in NC)

• Money


• Texas argued these two requirements would “protect the health of women who experience complications from abortions”

• Court in Planned Parenthood v. Casey said great, but “[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right”

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• The Court criticized the Fifth Circuit, which ruled in favor of Texas, for saying that it is the role of state legislatures, not the courts, to resolve medical uncertainty

• At odds with language in Gonzales v. Carhart (2007) (“Considerations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends.”)


• Admitting privileges

• No benefits: very few women who receive abortions need to be hospitalized

• Substantial burden: about half of Texas’s clinics closed as a result

• These closures meant the “number of women of reproductive age living in a county . . . more than 150 miles from a provider increased from approximately 86,000 to 400,000 . . . and the number of women living in a county more than 200 miles from a provider from approximately 10,000 to 290,000”

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• ACS:

• No benefits: For those who have abortions via medication complications almost always arise only after the patient has left the facility

• Texas does not require much riskier procedures like child birth and colonoscopies be performed in an ASC

• Substantial burden: further reduced the number of abortion clinics (initially about 40) to seven or eight

• “Common sense” suggests the remaining clinics will not be able to keep up with demand


• All ACS and admitting privileges requirements are in trouble

• Any requirement that closes a lot (how many?) of clinics is in trouble

• Courts will (should) dismiss “sham” justifications; will different rationales emerge?

• Courts will not defer to state legislature’s view of medical uncertainty

• Even if a state interest is furthered by regulation, the interest must be weighed against the burden

• What about the other new abortion laws (300 in the last 5 years)?• Particularly those that won’t close as many clinics as admitting privileges and ACS

requirements?

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Fisher v. University of Texas at Austin

• 4-3 win for affirmative action (Justice Kagan didn’t participate)

• Ironically this probably would have been a 4-4 case had Justice Scalia lived

• What did the Court say?

• What is the significance of the case?

• Other 4-4 cases don’t matter—the issues can go back to the Court


• Per Texas’s Top Ten Percent Plan, the top ten percent of Texas high school graduates are automatically admitted to UT Austin, filling up to 75 percent of the class

• Other students are admitted based on a combination of their grades and test scores and “personal achievement index”

• Race is considered as one factor in one of the two components of an applicant’s “personal achievement index”

• Fisher essentially argued that the Top Ten Percent Plan created enough diversity

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• Justice Kennedy rejects Fisher’s four arguments that UT Austin’s use of race isn’t narrowly tailored

• Critical mass isn’t a number

• Critical mass wasn’t achieved when race wasn’t a factor (between 1996 and 2002, when race wasn’t a factor in admissions, minority enrollment stagnated)

• Race had more than a minimal impact on minority enrollment (between 2003 and 2007, when race was considered, Hispanic and African-American enrollment increased 54 percent and 94 percent respectively)

• UT Austin tried numerous race-neutral means of achieving more diversity and they failed


• Big/symbolic significance of the case

• First win for affirmative action in education since Grutter v. Bollinger (2003)

• Remember the 25 year predication?

• Written by Justice Kennedy

• Did not join the majority in Grutter

• Embraces Grutter enthusiastically

• Is this what a more liberal Supreme Court looks like?

• Court done with affirmative action in higher ed cases?

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Harvard and UNC Lawsuit

• What will now happen to the challenges to the Harvard and UNC affirmative action plan?

• Plaintiffs ask the court to disallow affirmative action at the college/university level

• Diversity can be achieved using racially neutral means (eliminate legacy admissions)

• Focus is on the difficulty high achieving Asian Americans have in being admitted

McDonnell v. United States

• Straddles the “big” case category and “likely to lead to state legislation” category

• Definition of bribery under federal law

• Unanimous win for McDonnell—DOJ dropped charges

• Setting up meetings, calling other public officials, and hosting events do not alone qualify as “official acts”

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• While in office McDonnell accepted more than $175,000 in loans, gifts, and other benefits from Jonnie Williams

• Williams wanted a Virginia state university to test a dietary supplement, Anatabloc, his company, Star Scientific, had developed

• Federal bribery statutes make it a crime for public officials to “receive or accept anything of value” in exchange for being “influenced in the performance of any official act”


• The federal government claimed McDonnell committed at least five official acts

• McDonnell argued that these acts which didn’t “direct[] a particular resolution of a specific governmental decision” or pressure another government official to act, in and of themselves, aren’t “official acts”

• An “official act” is defined as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit”

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• Merely setting up a meeting, hosting an event, or calling another official does not qualify as a “decision or action” on any of these questions or matters:

• “Simply expressing support for the research study at a meeting, event, or call—or sending a subordinate to such a meeting, event, or call—similarly does not qualify as a decision or action on the study, as long as the public official does not intend to exert pressure on another official or provide advice, knowing or intending such advice to form the basis for an ‘official act.’ Otherwise, if every action somehow related to the research study were an ‘official act,’ the requirement that the public official make a decision or take an action on that study, or agree to do so, would be meaningless.”


• Big picture thoughts on this case

• Court was thinking about campaign contributions as the quid

• Exert pressure is an interesting standard

• Too much prosecutorial discretion under old federal statutes

• Why wasn’t this case tried based on state bribery/corruption/gifts laws?

• Will NC tighten up its state bribery/corruption/gifts statutes?

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Franchise Tax Board of California v. Hyatt

• If a State A gets sued in State B, State B’s court must offer State A the same immunities it would offer to State B

• Full Faith and Credit Clause case: states must respect the laws of other states (6-2 decision)

• Court was split 4-4 on the question of whether State A can be haled into the courts of State B without State A’s consent

• Court would have had to overrule Nevada v. Hall (1979)

Change State Law Cases

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Montgomery v. Louisiana

• Juvenile offenders sentenced to life in prison without parole before Miller v. Alabama (2012) was decided may have their sentences reviewed

• Miller v. Alabama the Court held that a juvenile may not be sentenced to life in prison without parole “absent consideration of the juvenile’s special circumstances in light of the principles and purposes of juvenile sentencing”

• Rather than relitigating sentences, states may allow relevant juvenile offenders to be eligible for parole


• Per Teague v. Lane (1989) new substantive rules of constitutional law (as opposed to procedural rules) apply retroactively

• Substantive rules prohibit a certain category of punishment for a class of defendants to be applied for certain offenses

• Some juveniles could still be sentenced to life in prison without parole but the vast majority cannot following Miller

• Only the “rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility” will be sentenced to life in prison without parole

• So Miller’s rule was substantive

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• 6-3 decision written by Justice Kennedy

• About 2,000 people currently serving life sentences without parole committed their crimes as juveniles

• Justices Scalia writes: “And then, in Godfather fashion, the majority makes state legislatures an offer they can’t refuse: Avoid all the utterly impossible nonsense we have prescribed [trying to figure out who was permanently incorrigible at the time they committed their crime] by simply ‘permitting juvenile homicide offenders to be considered for parole.’ Mission accomplished.”


• Is Justice Scalia right?

• Will all state legislatures rely on the parole process or will some come up with a process to relitigate sentences outside of the parole process and come up with criteria for whose sentence gets reduced?

• New Colorado law requires resentencing

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This Term

Petitions Granted So Far

• About 40 (typical at this time)

• Nothing really juicy (fairly typical)

• 2 redistricting cases• 5-6 issues each; hard to know what the Court will focus on

• Death penalty case• Texas relies on a 1992 definition of intellectual disabled from the American Association on

Mental Retardation adopted in a 2004 case

• Blames the state legislature for not adopting a definition

• No brainer?

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Pena-Rodriguez v. Colorado

• Could upset 50 states’ rules of evidence


• Juror made a number of racist statements during deliberations

• “No-impeachment” rules prevents jurors from testifying after a verdict about what happened during deliberations (with limited exceptions that do not include that a juror expressed racial bias)

• Does Colorado’s “no-impeachment” rule violates the Sixth Amendment right to be tried by an “impartial” jury?

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• In two previous cases the Supreme Court ruled that the federal “no-impeachment” rule wasn’t unconstitutional

• Admission of evidence that the jury was “one big party” where numerous jurors used drugs and alcohol (Tanner v. United States, 1987)

• Juror in a car-crash case said in deliberations that her daughter caused a car accident and had she been sued it would have ruined her life (Warger v. Shauers, 2014)

• According to the Colorado Supreme Court these two cases stand for a “simple but crucial principle: Protecting the secrecy of the jury deliberations is of paramount importance in our justice system”

• Compromise position?

Ivy v. Morath

• When are state and local governments responsible for ensuring that a private actor complies with the Americans with Disabilities Act (ADA)?

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Ivy v. Morath

• In Texas, state law requires most people under age 25 to attend a state-licensed private driver education school to obtain a driver’s license

• None of the schools would accommodate deaf students

• Deaf students sued the Texas Education Agency arguing it was required to bring the driver education schools into compliance with the ADA

• ADA states that no qualified individual with a disability may be excluded from participation in or be denied the benefits of public entity “services, programs, or activities” because of a disability

Ivy v. Morath

• Fifth Circuit: ADA does not apply to the TEA because it does not provide “services, programs, or activities”

• Dissent: ADA applies; “even though the driving schools perform the actual day-to-day instruction, instruction is but one component of the broader program of driver education that is continually overseen and regulated in discrete detail by TEA”

• SLLC amicus brief: when state and local governments are responsible when the private actor may fairly be said to be implementing a service, program, or activity of the public entity itself

• We want the Court to say: no amount of regulation or licensing of a private actor requires a state or local government to enforce the ADA against a private actor

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Trinity Lutheran Church v. Pauley

• Most controversial/interesting case accepted to date

• Accepted before Justice Scalia died

• No direct impact in North Carolina—one on 10 states without a Blaine Amendment

• Issue: whether Missouri can refuse to allow a religious preschool to receive a state grant to resurface its playground based on Missouri’s “super-Establishment Clause”

• Less technically: whether religious organizations be excluded from generally available public benefit programs based on state law

Lee v. Tam

• Could upset 50 states trademark law

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Lee v. Tam

• Section 2(a) of the Lanham Act bars the Patent and Trademark Office (PTO) from registering scandalous, immoral, or disparaging marks

• The PTO refused to register the band name THE SLANTS finding it likely disparaging to “persons of Asian descent”

• Does Section 2(a) violate the First Amendment?

• The Model State Trademark Act bars a mark from registration if it “consists of or comprises matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute”

•

Endrew F. v. Douglas County School District

• Issue: whether a student with disabilities must receive a “meaningful” education benefit versus “some” education benefit from their individualized education program, per the Individuals with Disabilities Education Act

• 4th Circuit is a “some” education benefit jurisdiction

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North Carolina Only

McCrory v. Harris

• Typical redistricting case

• Raises so many legal issues that it is impossible to know what the Supreme Court will focus on

• Fundamental objection is familiar: the legislature packed minority voters into safe minority districts under the guise of complying with the Voting Right Act to reduce minority voters’ influence in other districts

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McCrory v. Harris

• NC legislature added two majority black voting age population

• In both districts African-American preferred candidates “easily and repeatedly” won reelection in the last two decades

• Legislature said it created the districts to avoid vote dilution

• Lower court found no “strong basis in evidence” of a risk of vote dilution requiring a majority BVAP

Interesting Cert Petition from NC

• NC sex offender registry prohibits sex offenders from access websites including Facebook, YouTube, and nytimes.com if the site is “know[n]” to allow minors to have accounts

• Petitioner was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”

• Packingham v. North Carolina

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NC Voter ID

• Fourth Circuit blocked NC’s voter ID law and refused to put its decision on hold

• The North Carolina law would require voters to show a government-issued photo ID, reduce the number of days for early voting, and eliminate same-day voter registration and out-of-precinct voting

• “Thus, in what comes as close to a smoking gun as we are likely to see in modern times, the State’s very justification for a challenged statute hinges explicitly on race --specifically its concern that African Americans, who had overwhelmingly voted for Democrats, had too much access to the franchise.”

• Supreme Court refused to enforce state law (4-4) decision

Keeping in Touch with the SLLC

• Website: http://www.statelocallc.org/

• Twitter: www.twitter.com/sllcscotus

• Email ([email protected]) or call me (202) 434-4845

ncsupreme court update - unc school of government · • vacancy • last term (ending june 30) ......

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