Law & Justice

(FINAL UPDATE 3:34 p.m.)

In the nation’s most closely watched gay rights case, the Ninth Circuit Court divided 2-1 on Tuesday and struck down “Proposition 8,” the ban on same-sex marriage adopted by California voters in November 2008.  The panel majority did not uphold a broad right of gay couples to wed, saying it was enough for now to rule that it was unconstitutional to take away a right to marry only for one minority group, when everyone had the right before.   The 128-page ruling can be read here.

The panel unanimously ruled that the sponsors of Proposition 8 had a legal right to be in the appeals court to challenge a federal District judge’s ruling in 2010 striking down the ballot measure, but it also rejected the sponsors’ plea to wipe out that ruling on the theory that the trial judge had a conflict of interest because he is gay and is in a long-term relationship with another man.

The majority summed up its ruling this way: “By using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the people of California violated the Equal Protection Clause [of the federal Constitution].  We hold Proposition 8 to be unconstitutional on this ground.”

It added: “We do not doubt the importance of the more general questions presented to us concerning the rights of same-sex couples to marry nor do we doubt that these questions will likely be resolved in other states, and for the nation as a whole, by other courts.  For now, it suffices to conclude that the People of California may not, consistent with the Federal Constitution, add to their state constitution a provision that has no more practical effect than to strip gays and lesbians of their right to use the official designation that the State and society give to committed relationships, thereby adversely affecting the status and dignity of the members of a disfavored class. The judgment of the district court is affirmed.”

The opinion contained frequent references to a 1996 Supreme Court ruling, Romer v. Evans, which ruled unconstitutional a state constitutional amendment in Colorado that took away from gays and lesbians political rights that they had shared with other citizens.  The Romer decision was written by Justice Anthony M. Kennedy, who very likely would hold a pivotal vote on same-sex marriage if and when that issue reaches the Supreme Court.  Kennedy was also the author of a broader gay rights ruling in 2003, Lawrence v. Texas; there, the Court ruled that gays and lesbians have a constitutional right of privacy to engage privately in sexual activity by consent among adults.  That Kennedy opinion, though, said the Court was not taking a position then on same-sex marriage.

By fashioning what it considered to be a narrow ruling, the Circuit Court went some distance toward insulating its ruling from being overturned either by the en banc Circuit Court or by the Supreme Court.  However, because it assures a renewed right to marry in the nation’s most populous state, the ruling will be viewed at all levels of the court system as at least a partial assurance of equality to join in a revered social institution — one that many conservative observers believe to be under major stresses of modern life.

The Circuit Court said its ruling would remain on hold until it issued the formal mandate to put the ruling into effect.  In the meantime, the proponents of Proposition 8 have the option of asking the full Ninth Circuit Court to reconsider en banc Tuesday’s ruling, or they could seek to go directly to the Supreme Court to challenge the decision.  It would be up to the Supreme Court to decide whether to take on the controversy.

Circuit Judge Stephen R. Reinhardt, perhaps the federal judiciary’s most liberal member, wrote the 80-page majority ruling, joined by Senior Circuit Judge Michael Daly Hawkins.  Circuit Judge N. Randy Smith dissented on the marriage issue, concluding that Proposition 8 had valid reasons behind it.  Judge Smith, though, did join in the other parts of the panel ruling.

For many years, California had laws confining marriage to a man and a woman, although in recent years it had extended many of the legal benefits of marriage to gay couples who formed so-called “domestic partnerships.”  In 2008, however, the California Supreme Court ruled that it violated the state constitution to exclude gay couples from marrying as a legal option.   As a result, some 18,000 gay couples got married in the state.

Before that year was out, the opponents of such marriages pushed and won enactment of a state constitutional amendment, through approval of Proposition 8 in November 2008.   That was challenged in state courts, but the California Supreme Court upheld it under the state constitution in 2009, while at the same time ruling that the 18,000 existing gay marriages were legally valid.

That led two same-sex couples, seeking to wed, to challenge Proposition 8 under the federal Constitution.  That was the case in which U.S. District Judge Vaughn R. Walker in August 2010 struck down the measure, under the Equal Protection and Due Process Clauses, in a decision that was considerably broader in scope that Tuesday’s decision in the Circuit Court.

State officials of California, opposing the measure, had refused to defend it in court.  That task then was taken up by the official proponents of Proposition 8, and, after losing in Judge Walker’s court, they took the issue on to the Ninth Circuit.

In Judge Reinhardt’s explicit effort to keep the decision narrow, the majority opinion stressed that same-sex couples had all of the legal rights as opposite-sex couples – before Proposition 8 was enacted.  Thus, it concluded, the ballot measure “had one effect only” — that is, “it stripped same-sex couples of the ability they previously possessed to obtain from the state, or any other authorized party, an important right — the right to obtain and use the designation of ‘marriage’ to describe their relationships.  Nothing more, nothing less.”

As a result, Reinhardt wrote, the ballot measure “could not have been enacted to advance California’s interests in child rearing or responsible procreation, for it had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples.  Nor did Proposition 8 have any effect on religious freedom or on parents’ rights to control their children’s education; it could not have been enacted to safeguard these liberties.”

The ballot measure, the opinion added, “serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.  The Constitution simply does not allow for ‘laws of this sort.’”  (That quotation was taken, the opinion noted, from the Supreme Court’s Romer v. Evans ruling.)

Reinhardt noted that “broader issues have been urged for our consideration,” but he said the panel need not decide those.  California already had extended the same marriage rights to same-sex couples and Proposition 8 merely took those away.  “This unique and strictly limited effect of Proposition 8 allows us to address the amendment’s constitutionality on narrower grounds.”

It added, though, that if it could not have decided the case on that narrower basis, “we would not hesitate to proceed to the broader question — the constitutionality of denying same-sex couples the right to marry.”   The opinion noted that that is “an important and highly controversial question,” and was now a matter of great debate in the nation.

In dissent, Judge Smith argued that the Supreme Court’s Romer decision did not control the outcome in this case.  He went on to conclude that California had sufficient interests to justify the enactment of the same-sex marriage ban: steering childbearing into the realm of marriage among couples biologically capable of having a child together, and promoting strong parenting by providing for children to be born into the more stable relationship of such marriages.  He credited the arguments of the backers of Proposition 8 that their measure would further those interests sufficiently to justify its enactment.

The Smith dissent thus provides a basis for more conservative judges on higher courts to decide differently than the panel majority did.

 

In association with Bloomberg Law

This is a reminder that SCOTUSblog is now accepting applications from current law students interested in interning with us.  Details about the position’s qualifications and responsibilities, as well as how to apply, are below the jump.

The principal focus of the internship (which is a paid one)  will be assisting Tom with the “Petition of the Day” and “Petitions to watch” features on the blog. This will require roughly ten to twenty hours of work a week on a flexible work schedule, which can be accomplished remotely. The expected commitment would be through the end of the Supreme Court’s Term in late June.

To qualify for the position, you must:

• Have a strong academic record
• Be currently enrolled in a J.D. or LL.M program (undergraduates are not eligible)
• Have a strong interest in learning about the U.S. Supreme Court and its workings
• Have some experience working with (or at least interest in) blog or website technology
• Have demonstrated excellent writing and editing skills
• Have excellent organizational skills and attention to detail.

To apply, please send us the following materials:

• Cover letter
• Resume
• Contact information for two references
• A writing sample of no more than five double-spaced pages that has not been edited by anyone other than you
• An official or unofficial law school transcript.

Application materials should be sent to Kali Borkoski at kborkoski@scotusblog.com and Max Mallory at mmallory@scotusblog.com. Materials must be received by February 10th for consideration. Please note that if you are a law student and have already submitted application materials for the previously advertised Deputy Manager position, you will automatically be considered for this internship and there is no need to reapply.

In association with Bloomberg Law

 On February 22, the Court will hear oral argument in Blueford v. Arkansas.  At issue in the case are two strains of double jeopardy jurisprudence.  The first addresses the question of what constitutes an acquittal and will therefore bar further prosecution, while the second governs when a mistrial will bar further prosecution.

The peculiar facts and procedural posture of the case frame the two double jeopardy issues narrowly.  The defendant was tried on four offenses, including both greater- and lesser-included offenses. The jury was instructed to proceed to the next lesser offense only after concluding that the defendant was not guilty of the greater.  Failing to reach a verdict on the lesser offenses, the jury reported that it agreed the defendant was not guilty on the two most serious offenses.  However, that jury vote was never further formalized.  Jeopardy attached when the jury was empanelled and sworn, so the issue before the Supreme Court is whether the resolution of the case raises a double jeopardy bar to further prosecution.

 Background

Blueford was charged with capital murder for the death of his girlfriend’s nineteen-month old son.  The charge of capital murder implicitly charged the lesser-included offenses of first-degree murder, manslaughter, and negligent homicide.  The evidence established that the child was injured while in Blueford’s care, leading to his death two days later.  At trial, the prosecution and defense disputed what had precipitated the fatal injury.  Relying heavily on the testimony of a medical expert who had failed to obtain board certification in anatomical pathology, the prosecution contended that Blueford had thrown the child down on a mattress with such force that it caused the injury and death.  The prosecution also stressed that Blueford had given inconsistent statements to the police and had left the state to avoid arrest.

By contrast, the defense sought to show that the injury was accidental.  Blueford testified to a chain of events that led to the child accidentally hitting his head on a table.  That account was supported by two expert medical witnesses, who were highly critical of both the autopsy performed by the prosecution’s expert and his assessment of the likely cause of death.  In closing, the defense asked the jury to convict Blueford of negligent homicide and acquit him of the three more serious offenses.

The trial court instructed the jury on all four offenses, starting with the most serious offense (capital murder) and proceeding to the least serious (negligent homicide).  Between the instructions on each offense and the next less serious offense, the trial court instructed the jury: “if you have a reasonable doubt of the defendant’s guilt on the [greater charge], you will consider the [next less serious charge].”  Prosecutors then repeated these instructions in their closing arguments, reminding the jury that it should only consider a lesser charge if it had first decided unanimously that the defendant was not guilty of the greater charge.

After four hours of deliberation, the jury signaled that it might be deadlocked.  The court encouraged the jury to attempt to reach a verdict, and deliberations continued for an additional half-hour.  When the jury again reported that it still could not reach a verdict, the trial court brought the jury into the courtroom and asked the foreperson for more information.  In response to the court’s questions, the foreperson reported that the jury was unanimously against conviction on both capital murder and murder in the first degree and was divided on the manslaughter charge, with nine for it and three against.  The jurors had not addressed the lesser charge of negligent homicide because they understood the instructions to require them to consider only one charge at a time, moving from most to least serious.  The juror’s report to the judge thus expressed the jury’s understanding that it could not consider the next lesser offense without first agreeing unanimously that the defendant was not guilty of the greater offense.

The court again encouraged the jury to continue deliberating to reach a verdict.  At this point, Blueford asked the court to give the jury verdict forms on which to record its verdicts on the two counts on which it did agree, but the trial court refused.  As a result, the foreperson’s report was never formalized, and no findings or verdicts were entered.

Before the jury was again sent out to deliberate, prosecutors suggested that the judge should enter a mistrial, but Blueford’s lawyers countered that they were not asking for a mistrial.  After deliberating an additional half-hour, the jury again reported that it was deadlocked on the other charges; the court then immediately entered a mistrial on all of the charges.  At that point, Blueford neither objected nor consented to the mistrial.

The Supreme Court of Arkansas concluded that the Double Jeopardy Clause did not bar the state from trying Blueford again.  The court rejected the argument that Blueford had been acquitted, reasoning that the report by the jury foreperson indicating that the jury was unanimously against conviction on the two most serious grounds was never translated into a formal acquittal. Moreover, the court held, Blueford was not entitled to a partial verdict; in reaching that conclusion, the court declined to adopt the minority position that double jeopardy in some cases requires a partial “not guilty” verdict on greater offenses when the jury is deadlocked on lesser-included offenses.

The Arkansas court did not squarely address whether the mistrial on the two most serious charges was manifestly necessary.  The court noted that a defendant can invoke a double jeopardy bar if a mistrial is declared without “overruling necessity.”  However, the court seemed to accept two responses to the argument that the mistrial barred further prosecution.  First, the court appeared to endorse the state’s argument that, by failing to object, Blueford impliedly consented to the mistrial.  Second, because it rejected the argument that the trial court was required to take a partial verdict, the court classified Blueford’s case as a run-of-the-mill hung jury case in which a mistrial is clearly permitted.

Merits briefing  

Blueford argues that the jury’s action constituted an explicit acquittal of the defendant; the jury expressed its “clear, express, and final determination.”  He emphasizes that the instructions, reinforced by the prosecution’s closing argument, directed the jury to resolve each more serious offense before considering the next less serious offense.  The instruction directed the jury to take an “acquittal first” or “hard transition” approach; in contrast, some jurisdictions use a “soft transition” approach, under which the jury may consider the greater and lesser offenses in whatever order it chooses.  As a result, the jury’s final report before it was discharged, stating that it could not reach a verdict on manslaughter, necessarily established that it had agreed to acquit the defendant on the two more serious charges.

Blueford further argues that the trial court declared a mistrial in the absence of manifest necessity, barring further prosecution.  Although the trial court was justified in declaring a mistrial on those counts as to which the jury could not reach a verdict, the jury was able to reach a verdict on the two more serious charges.  Because, as a result, there was no constitutionally sufficient reason to declare a mistrial as to those two charges, the mistrial bars further prosecution on those charges.

The state argues that the jury’s action did not constitute either an actual or implied acquittal.  It was not formalized, and the jurors could have returned to the more serious charges in their deliberations and reached a different decision.  The state also disagrees with Blueford’s characterization of the instructions as “hard transition” or “acquittal first” instructions.  It emphasizes that, although the jurors were told they must not move to the next lesser offense unless they agreed that they have a reasonable doubt of the defendant’s guilt on the more serious charge, they were neither instructed that they must acquit the defendant of the more serious charge before moving to deliberate on the less serious charge nor given a verdict form that would have permitted them to do so.

The state also argues that Blueford waived the argument that the mistrial was declared without manifest necessity by not objecting to the court’s sua sponte declaration of the mistrial when the jury continued to report that it was deadlocked.  Further, the trial court could properly declare a mistrial on all of the charges because the Constitution does not require the trial court to take partial verdicts.  Finally, the state adds that Blueford’s request for partial verdicts came too late, after several hours of deliberation.

Analysis

Permitting the state to further prosecute Blueford on the two charges in question threatens core double jeopardy protection.  A retrial in this case, in which the prosecution failed to establish the more serious charges altogether, would not only subject Blueford to another trial but would also allow the state to treat the first trial as a dress rehearsal and to improve its case in the second proceeding.  Nevertheless, the appropriate resolution of the case under the Court’s double jeopardy jurisprudence is not clear.

One question for the Court is whether Blueford was in fact acquitted.  The critical issue is whether the foreperson’s statement that the jury was unanimous that he was not guilty on the two charges was sufficiently formal to constitute an acquittal.  The state argues that the jury never finalized a verdict on either of these counts and was free to continue deliberating on those counts until it was discharged, while Blueford counters that the “hard transition” instruction, which the jury clearly followed, precluded the jury from even deliberating on the lesser charge on which it eventually deadlocked unless it first decided that Blueford was not guilty of the more serious charge. Having unanimously agreed on the more serious charges, as instructed, there was no reason for the jury to return to those charges.  Nevertheless, the Court is unlikely to conclude that the mere announcement by the jury’s foreperson of its position on the charges without further steps to formalize the verdict – the steps that the defendant requested and the trial court declined to take – should be deemed an acquittal.

Blueford also argues that the proceedings below resulted in an implied acquittal on the greater charges.  The Court has held that a jury verdict convicting a defendant only of a lesser included offense implicitly acquits the defendant of the more serious offense on which the jury returned no verdict.  However, it seems unlikely that the Court will extend this precedent and hold that a jury’s mere declaration that it is deadlocked on a lesser offense necessarily acts as an implied acquittal on all the greater charges.

The stronger argument for Blueford may be that the trial court should not have declared a mistrial on the charges as to which the jurors agreed and that the mistrial therefore bars further prosecution.  Atrial court is required to explore less drastic resolutions before declaring a mistrial and forcing the defendant through a second proceeding on the charges.  The entry of a partial verdict on the charges as to which the jury agreed arguably represented a less drastic resolution, supporting the argument that a mistrial on those charges was not manifestly necessary.  However, this result would force all jurisdictions to allow the entry of partial verdicts, a procedural option that is not currently available in many states.  The Court could conclude that the state’s interest in not taking partial verdicts is sufficient to outweigh Blueford’s interests in being protected against further proceedings.

Finally, Blueford should not be regarded as having consented to the mistrial.  If the Court concludes that he did indeed consent to the mistrial, double jeopardy will not bar further prosecution.  In this case, Blueford had asked the court to take a partial verdict and had earlier stated that the defense was not requesting a mistrial.  His failure to again protest when the court entered the mistrial should not be construed as consent.  Only express consent should defeat the defendant’s double jeopardy claim.

 

In association with Bloomberg Law

As the Court’s winter recess continues, coverage looks ahead to cases that will soon come before the Court.  As Marissa observed yesterday, much of the focus is on the latest developments in the challenge to the Affordable Care Act. Betsy Goldman of Bloomberg Law (video) discusses how Justice Kennedy might vote in the case, while David Lazarus  discusses the real-world impact of the case in his column for the Los Angeles Times. James Vicini of Reuters (via the Chicago Tribune) summarizes the briefs filed on Monday by the states and the National Federation of Independent Business on the individual mandate question, while Seth Stern of Bloomberg (via the Houston Chronicle) suggests that the health care litigation will  “test the justices’ refusal to allow live broadcasts of their proceedings.”

Courthouse News Service also reports on briefs filed in United States v. Alvarez, in which the Justices will consider the constitutionality of the Stolen Valor Act, a federal law that imposes criminal penalties on individuals who falsely claim to have received military honors.  On this blog, Stephen Wermiel discusses the case and the issues involved in it as part of the blog’s “SCOTUS for law students” series.

Other coverage of the Court looks at the impact of recent decisions. At USA Today, Kevin Johnson reports that the FBI has already cut back on its use of GPS surveillance after last month’s decision in United States v. Jones. And Lawrence Hurley of Greenwire reports on the effects that Wal-Mart v. Dukes, last year’s class action certification case, is having on environmental litigation.

And finally, the Court’s 2010 decision in Citizens United v. FECcontinues to draw coverage. Yesterday Marissa linked to a column in the Washington Postin which E.J. Dionne argued that ““[i]n the long run, we have to hope that a future Supreme Court will overturn this monstrosity.” At CATO@Liberty, Roger Pilon and John Samples respond to the column, which Matthew Franck of the National Review lambasts as a “foul calumny on honest public servants.” Rick Hasen of the Election Law Blog links to a webcast in which he discussed judicial elections after Citizens United with Erwin Chemerinsky and James Sample.

Briefly:

• At the WSJ Law Blog, Joe Palazzolo uses the obscene gesture made by singer M.I.A. at Sunday’s Super Bowl as a jumping-off point to discuss FCC v. Fox, the challenge to the FCC’s indecency regime that was argued last month.
• Citing a recent case in which a Missouri teenager confessed to killing his young neighbor, Bill Otis of Crime and Consequences suggests that the Court should reconsider its decision in Roper v. Simmons, in which it held that the death penalty for juveniles is unconstitutional.

In association with Bloomberg Law

The petition of the day is:

John Doe AP v. Roman Catholic Archdiocese of St. Louis

Docket: 11-840
Issue(s): Whether the First Amendment shields religious organizations from accountability for negligence and negligent supervision and retention of their employees who sexually abuse children.

Certiorari stage documents:

• Opinion below (Mo. Ct. App.)
• Petition for certiorari

In association with Bloomberg Law

The Ninth Circuit Court will issue a ruling tomorrow — apparently, in a single opinion — to decide the challenge to California’s ban on same-sex marriage, approved by the state’s voters more than three years ago.   In a brief announcement, the Circuit Court said it would issue an opinion at 1 p.m. Tuesday (10 a.m. San Francisco time) dealing both with the constitutionality of the measure (“Proposition 8″) and with the issue of whether the trial judge should have disqualified himself from the case.

The three-judge panel actually has three issues before it: whether the backers of Proposition 8 had a legal right to appeal the District Court ruling striking down Proposition 8 (the “standing” issue), whether — if “standing” to appeal did exist — the ballot measure is unconstitutional, and whether now-retired District Judge Vaughn R. Walker should have recused and thus whether his ruling should now be vacated by the Circuit Court.

Although the wording of the annoiuncement Monday was not entirely clear and made no promises about the scope of the ruling, it could be interpreted as indicating that the panel will find that the measure’s proponents did have the right to appeal, and thus the panel would be free to move on to rule on the merits and on the disqualificatioin issue.   Given the makeup of the panel and the past records of the three judges, the chances would appear to be quite strong that Proposition 8 would be struck down.

Ciricuti Judge Stephen Reinhardt, perhaps the most liberal of all federal judges, is on the panel, along with Senior Circuit Judge Michael Daly Hawkins and Circuit Judge N. Randy Smith.   Hawkins is considered to be a moderate, and Smith, something of a conservative.    Judge Reinhardt has seemed particularly eager for the panel to reach the merits, and that goal was definitely enhanced when the California Supreme Court ruled — when asked by the Circuit Court for advice — that state law allows the sponsors of a ballot measure to go to court to defend the measure when state officials refuse to do so.   California’s top state officials actually oppose the ban, and thus have refused to defend it.  The backers have stood in for them.

While the question of “standing” to appeal in the federal court is an issue under the federal Constitution, not under state law, the state Supreme Court ruling in favor of the backers’ legal stature may prove quite persuasive to the Circuit Court panel as it addresses the question under Article III.   When the Circuit Court passed the state law issue to the state court for a reaction, the panel seemed to suggest that the outcome in the state court might well be decisive on the Article III question.

 

In association with Bloomberg Law

Congress has a penchant, whenever possible, for giving dramatic names to federal laws to underscore the intended purpose. One such example is the USA PATRIOT (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) Act, passed in the wake of the September 11 attacks.  The Stolen Valor Act, passed in 2006, is another example, evoking the idea that real acts of courage by members of the armed services are devalued when someone who was not a war hero falsely claims to have been awarded a military medal.

Sometimes, however, the dramatic titles may mask other problems lurking beneath the surface of federal laws. On February 22, in United States v. Alvarez, the Supreme Court will hear arguments on the question whether this federal effort to punish those who falsely claim to have won military medals and decorations violates the First Amendment guarantee of freedom of speech.

The issue is of obvious importance to those studying constitutional law, particularly the First Amendment. And although less obvious, it may also have important ramifications for torts law as well as for students in media and communications law classes.

The question at the heart of the case is whether the First Amendment protects false statements. The Supreme Court has ruled that some types of false statements are not protected by the First Amendment – for example, speech that is knowingly false and damages another person’s reputation may be libel, while speech that intentionally misrepresents information and harms another person who relied on the statements may constitute fraud.   But the Justices have never ruled that false statements which someone makes about himself, and which do not directly harm anyone else, are outside the umbrella of the First Amendment. The Court will confront that issue in considering the Stolen Valor Act.

The law was challenged by Xavier Alvarez, an elected board member of the Three Valleys Municipal Water District in Pomona, California. In 2007, Alvarez introduced himself publicly at a meeting as a former Marine with twenty-five years of service who had been awarded the Congressional Medal of Honor. In reality, Alvarez had never served in the military or received any military medals.

When Alvarez was prosecuted for violating the Stolen Valor Act, he challenged the constitutionality in two ways.  First, he argued that the law was facially unconstitutional – that is, that it could never be constitutional under any scenario.  Second, he argued that, at a minimum, the law was unconstitutional as applied to his conduct.  After a federal district court refused to dismiss the charges against him, Alvarez pleaded guilty and was sentenced to three years of probation and a $5000 fine. As part of his plea, Alvarez retained the right to pursue his First Amendment challenge to the law on appeal.

In 2010, a divided panel of the United States Court of Appeals for the Ninth Circuit declared the Stolen Valor Act facially unconstitutional.  The federal government then asked the Ninth Circuit to review the case en banc, which in other circuits generally means a rehearing by all of the judges in the circuit but in the Ninth Circuit (because it is so large) means rehearing before a panel of eleven judges. The case stirred up strong views:  six other judges joined a dissent from the denial of rehearing en banc by Judge Diarmuid O’Scannlain, who urged the en banc court to reconsider the case on the ground that the First Amendment does not protect a “right to lie.” In response, Chief Judge Alex Kozinski wrote that the dissenters were calling for an “ever-truthful utopia” that was “terrifying” – to which Judge O’Scannlain countered that Chief Judge Kozinski’s dire warnings described “a fictional world” that was akin to “a Hollywood horror film.”

What is the legal dilemma that prompted this rhetorical flourish and triggered passionate friend-of-the-court briefs in the Supreme Court? In simplest terms, the question is whether the First Amendment protects lies. At a more complex level, the fight is about what legal standard should apply to a law that punishes false statements.

In free speech cases, the Court first considers whether the content of speech that the government is attempting to regulate falls into a category that is unprotected by the First Amendment. If the speech is not part of an unprotected category, the Court then determines whether the regulation is based on the content of the speech; such restrictions are generally subjected to the Court’s most exacting review, known as “strict scrutiny.” Strict scrutiny requires the government to show a compelling reason for restricting speech and to use a narrowly tailored means of regulating.

Let’s start with the categories.  The Court has identified categories of speech that are not protected by the First Amendment, including obscenity, incitement to illegal action, child pornography, and libel of people who are not public figures. These categories are unprotected because they generally involve speech that the Court regards as inherently harmful to others.

But many false statements do not cause any harm to others. Consider boasts, hyperbole, exaggeration and other claims that may be false but do not injure anyone. There is no doubt that society condemns lies, but a basic principle of First Amendment rulings is that government may not prohibit speech merely because it may be offensive. The Justices have never specifically included false statements as an unprotected category. Moreover, in recent decisions the Court has made it clear that it has little interest in creating new categories of unprotected speech.

The second step in the Court’s enquiry is in dispute in Alvarez.  The Ninth Circuit applied strict scrutiny to the Stolen Valor Act, reasoning that the law punishes speech based on its content. That court held that although Congress may have a compelling interest in regulating false statements about military medals, the law is unconstitutional because it is not narrowly tailored to minimize the impact on free speech.

The Ninth Circuit judges who urged rehearing argued that strict scrutiny is the wrong standard to use in reviewing the Act, and the federal government echoes that same argument in the Supreme Court. It contends that the Act punishes only a very narrow type of speech that involves knowingly false statements of fact about military medals. Moreover, the government explains, the Act is necessary to protect the importance and value of the medals and does not interfere with other speech about the military. Thus, the legal test should be whether the law leaves adequate “breathing space” for other speech.

In friend-of-the court briefs, twenty states, the American Legion, and a variety of other veterans’ organizations have urged the Court to uphold the Act. The states told the Court that they have similar laws punishing a variety of false claims about oneself, including false claims to be a public official, while the veterans’ organizations expressed strong concern for the integrity of military medals.

In his brief at the Court, Alvarez argues that upholding the Stolen Valor Act would expose all knowingly false statements of fact to punishment, substantially broadening government authority to restrict and punish free speech. He urges the Court to adhere to the use of the strict scrutiny test and find that Congress could use other means to protect the integrity of military medals.  His arguments are also supported by friend-of-the-court briefs filed by a large coalition of news media organizations and by the American Civil Liberties Union (ACLU). The ACLU brief argues that the power claimed by the government under the Stolen Valor Act would provide “sweeping power to control and censor public debate.”

The Court has shown in recent years that it will not hesitate to strike down laws that impose restrictions on speech, even when that speech is controversial. Thus, in United States. v. Stevens (2010), the Court struck down a federal law that punished the sale of videos depicting animal cruelty, finding that the law was too broad and declining to create a new category of unprotected speech. And just last Term, in Brown v. Entertainment Merchants Association (2011), the Court once again declined to create a new and unprotected category, instead striking down a California law punishing the sale of violent video games to minors.

Now the Court must decide whether – unlike violent video games or animal cruelty – the integrity of military medals justifies the free speech restrictions of the Stolen Valor Act or whether First Amendment principles instead dictate that the law is unconstitutional. If the Court finds broadly that false statements are unprotected, that could lead in future cases to reconsideration of the law for fraud, misrepresentation, defamation, and false light invasion of privacy. If the Court were to rule more narrowly that military medals occupy a special place in our free speech value system, the impact may be less significant, although even that ruling might leave other courts wondering if there are other, similar special types of speech.

In association with Bloomberg Law

With the Court’s winter recess continuing through February 17, the weekend’s coverage focused on the latest developments in the challenge to the Affordable Care Act.

As this blog’s Lyle Denniston reports, the government filed a motion Friday asking the Court to increase the time for oral arguments—from five-and-a-half hours to six—in the challenge to the constitutionality of the Affordable Care Act. JURIST’s Michael Haggerson also has coverage. At the Huffington Post, Mike Sacks discusses a recent Kaiser Foundation poll reporting that nearly sixty percent of the country believes that the Justices will be guided by ideology – not legal analysis – when they decide the case. On the issue of recusals, UPI’s Michael Kirkland writes that although “[t]he clamor for Justice Clarence Thomas to withdraw from hearing the challenge . . . appears to have died down for the moment . . . the pressure on Justice Elena Kagan has been relentless.” Finally, as the school’s website reports, Georgetown University Law Center hosted a mock moot court of the health care case last week, with Walter Dellinger and Steven Bradbury as the advocates. A webcast of the event can be found here; Monica Haymond at Love the Process also has coverage.

Also in the news this weekend was a television interview given by Justice Ruth Bader Ginsburg during her visit to Egypt. As Ariane de Vogue of ABC News reports, the Justice was asked by the interviewer whether she thought post-Mubarak Egypt should use the constitutions of other countries as a model for their own. The Justice responded that Egyptians should be “aided by all Constitution-writing that has gone on since the end of World War II, but added that she “would not look to the U.S. Constitution, if I were drafting a Constitution in the year 2012. I might look at the Constitution of South Africa.” Bob Unruh at World Net Daily also has coverage, while the Volokh Conspiracy’s Eugene Volokh, PrawfsBlawg’s Paul Horwitz, and Slate’s David Weigel offer commentary.

On Friday the Court also issued its oral argument calendar for the April sitting.  Writing for this blog, Lyle Denniston takes a detailed look at the cases, which will include oral arguments in Arizona v. United States on April 25, the last day on which oral arguments are scheduled for the Term. Mike Sacks of the Huffington Post, James Vicini of Reuters, and the Arizona Republic’s Michael Kiefer have coverage.

Briefly:

• The editorial board of the New York Times examines the intersection of politics and the Court, and argues that, although “[t]he political influences on these major cases are important by themselves,” they are also “a reminder that the makeup of the court for the next generation, and thus the law’s direction, are likely to be determined by the 2012 election.”
• The ABA Journal’s Debra Cassens Weiss reports that on Saturday, Justice Scalia answered questions during the ABA Midyear Meeting in New Orleans. Topics included abortion, religion, lawyers’ salaries, and the Justice’s recent opinion in United States v. Jones. The Associated Press (via NOLA.com) also has coverage of the Justice’s remarks.
• At Jost on Justice, Kenneth Jost discusses whether the Court would uphold President Obama’s recess appointments, speculating that “unless the Supreme Court sets itself against the weight of practice and judicial precedent, Obama seems likely to prevail if this hard case reaches the Justices.”
• In an op-ed for the Washington Examiner, David Olson argues that in the wake of Golan v. Holder, the Court should place greater limits on Congress’s power to grant copyrights.
• Washington Post columnist E.J. Dionne argues that the world created by the Court’s decision in Citizens United v. FEC decision “doesn’t work,” and concludes that, “[i]n the long run, we have to hope that a future Supreme Court will overturn this monstrosity.”
• At the Election Law Blog, Rick Hasen comments on the Justice Department’s recent announcement that it would reconsider its objections to proposed voting changes in Kinston, North Carolina. Hasen suggests that this may be a strategic choice by the government, as it would allow the Court to consider the constitutionality of Section 5 of the Voting Rights Acts on the more favorable facts of another case in the pipeline, in which Alabama’s Shelby County is challenging the Act.
• In an op-ed for the Daily Sundial, Joseph A. Tomaszewki argues that the Court’s opinion in Jones leaves open the question of whether the same privacy standard applies when the government obtains personal information in ways that do not involve a physical trespass, such as using a person’s GPS-enabled smart phone to track his location.
• Tom Giffey of the Chippewa Valley Leader-Telegram discusses the possibility of term limits for Supreme Court Justices.

In association with Bloomberg Law

The Court is on winter recess until the Justices reconvene for the Conference of February 17.  Our “Petitions to watch” for that Conference is here.

The February sitting begins February 21.

In association with Bloomberg Law

The Obama Administration asked the Supreme Court on Friday to expand by a half-hour — to a total of six hours — the time allowed for oral arguments in late March on the constitutionality of the new federal health care law.   In a ten-page motion, U.S. Solicitor General Donald B. Verrilli, Jr., said the added time would be provided for the opening arguments on Monday, March 26, on whether the challenges to the new individual insurance-purchase mandate are barred by the federal Anti-Injunction Act, a law designed to protect the government’s power to collect tax revenue.  The motion also suggested ways to divide up the three days of argument among the parties, but noted that there is some disagreement over that part of the motion.

The Court on November 14 agreed to hear four separate issues about the new Affordable Care Act: first, the constitutionality of the insurance mandate; second, the issue of whether the challenges to the mandate are barred by the AIA; third, the question of what parts of the law, if any, would fall if the insurance mandate were struck down, and, fourth, the constitutionality of the expansion of Medicaid health coverage for poor people.

Here is the lineup of the three days of argument — first with the Court’s order, then with the division of time suggested on Friday by the Solicitor General:

Monday, March 26:

The Anti-Injunction Act issue:  Court ordered 60 minutes of argument.  The Solicitor General seeks 90 minutes, with the time allotted this way if the Court agreed to expand the time: Robert Long, amicus, arguing in favor of the AIA as a ban on challenges to the insurance mandate, 40 minutes; the Solicitor General, 30 minutes; the 26 states and the National Federation of Independent Business, 20 minutes combined.  The motion noted that the states and the NFIB plan to seek more time than the 20 minutes proposed by the SG.  If the Court declines to add 30 minutes, the 60 minutes would be allotted this way: Long, 30 minutes; U.S. 20 minutes, states and NFIB, 10 minutes combined.

Tuesday, March 27:

Constitutionality of the insurance mandate: Court ordered two hours of argument.  The SG urged that the U.S. and its opponents (the 26 states and the NFIB), divide the time equally, with 60 minutes each.  The SG noted that the states and NFIB will seek to divide their 60 minutes for 30 minutes each.

Wednesday, March 28:

First issue that day: Severability of the insurance mandate from other parts of the law if the mandate is struck down.  The Court ordered 90 minutes of argument time.  The SG urged the Court to divide the time equally: 30 minutes combined for the 26 states and the NFIB, 30 minutes for the U.S., and 30 minutes for Bartow Farr, as amicus arguing that all of the ACA must fall if the mandate is nullified (a position that neither the U.S. nor the states/NFIB support).  The SG noted that the states and NFIB will seek more time than the 30 minutes assigned to them, and will ask for less for the U.S., with whatever time is given to the states and NFIB to be divided eqaully between them.  The SG contended that, whatever time the Court allotted to the states and NFIB, the U.S. must have an amount equal to their combined time because it is facing a variety of other lawsuits over this issue, if the mandate falls, while the states and NFIB are interested in this case only.

Second issue the day:  Constitutionality of the Medicaid expansion.  Court ordered 60 minutes of argument time.  The SG urged the Court to divide the time equally between the U.S. and the 26 states as a group.  (The NFIB is not involved in this issue and there are no amici involved in oral argument.)

In SG Verrilli’s motion, he spelled out reasons for the disagreement, where that exists, and explained the government’s specific needs, while informing the Court of the forthcoming pleas for a different array that the states and the NFIB will be seeking.

The Court has complete discretion over how much time to assign for any argument, and how the argument is divided up.

 

 

 

In association with Bloomberg Law

With the Court still in its mid-term recess, today’s clippings focus on the activities of Justices Ruth Bader Ginsburg and Sonia Sotomayor.

The AP’s Mark Sherman (via the Traverse City (Mich.) Record-Eagle) reports that Justice Ginsburg has returned from her visit to Egypt and Tunisia, a trip that was sponsored by the State Department. Speaking to a crowd at Cairo University, the Justice told students she was inspired by the protests that led to the end of Hosni Mubarak’s regime. The ABA Journal’s Molly McDonough also has coverage.

At the Daily Report, Jonathan Ringel reports that Justice Sotomayor made a guest appearance on Sesame Street Thursday night. In the skit, the Justice heard arguments in the case of Baby Bear v. Goldilocks.

Briefly:

• Writing for the Huffington Post, Lyle Denniston discusses whether the public should be able to “veto” unpopular Court decisions.
• Doug Schoen of Forbes analyzes the potential political consequences of the Court’s opinion on health care reform.
• Slate’s Dahlia Lithwick discusses comedian Stephen Colbert’s crusade against Citizens United. “In the history of the Supreme Court,” she writes, “nothing has ever prepared the justices for the public opinion wrecking ball that is Stephen Colbert.”
• At Appellate Daily, Michelle Olsen discusses some of the issues at stake in Kiobel v. Royal Dutch Petroleum Co., scheduled for argument later this month.
• John Lotter, a Nebraska death row inmate whose murder case inspired the 1999 film “Boys Don’t Cry,” has filed a cert. petition. Lori Pilger of the Lincoln Journal Star has coverage.
• The Huffington Post’s Luke Johnson reports on recent remarks on the Republican presidential race by retired Justice Sandra Day O’Connor at a dinner in Washington.
• At Concurring Opinions, Gerald Magliocca discusses his favorite Court opinion.

 

In association with Bloomberg Law

The Supreme Court will conclude its oral arguments for the current Term with the major case on a state’s power to pass laws to control undocumented immigrants living in the state — Arizona v. U.S. (docket 11-182) — on April 25.   The Court on Friday released the April calendar, listing cases to be heard in the final scheduled sitting of October Term 2011.   This is a relatively thin calendar, with arguments heard only in the mornings; each session is limited to one hour.  The sessions begin at 10 a.m.  No other cases will be heard this Term unless something arises as an emergency.

The schedule of cases, including a brief summary of the issues at stake, follows the jump.

Mon., April 16:

11-204 — Christopher v. SmithKline Beecham Corp. – eligibility of “outside salesmen” of pharmaceutical companies for overtime pay

Tues., April 17:

11-5683 — Dorsey v. U.S. (and 11-5721 – Hill v. U.S.) — application of Fair Sentencing Act of 2010 to all those sentenced after the law was enacted (Cases consolidated for one hour of oral argument)

Wed., April 18:

11-551 — Salazar v. Ramah Navajo Chapter — duty of federal government to pay all of the contract costs when an Indian tribe performs government functions under contract, even though Congress has imposed spending limits

Mon., April 23:

11-166 — Radlax Gateway Hotel v. Amalgamated Bank –  secured creditor’s right to bid for purchase of assets being sold under a Chapter 11 bankruptcy reorganization plan

Tues., April 24:

11-246 — Match-E-Be-Nash-She-Wish Band v. Patchak (and 11-247 — Salazar v. Patchak) — immunity of U.S. government to lawsuits challenging title to land held in trust for Indian tribes’ use for gambling casino; also standing-to-sue issue (Cases consolidated for one hour of oral argument)

Wed., April 25:

11-182 — Arizona v. U.S.  — constitutionality of state laws seeking to control the everyday work and movement of undocumented immigrants living within the state

 

 

 

 

 

In association with Bloomberg Law

At its February 17, 2012 Conference, the Court will consider such issues as the burden of persuasion for warrantless searches of residences, the use of a defendant’s pre-arrest silence, grandparent visitation, whether human genes are patentable, and exhaustion under the Individuals with Disabilities Education Act. This edition of “Petitions to watch” features petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues. This list will be updated to reflect any relisted cases when that information becomes available. John Elwood’s latest “Relist (and hold) watch” is available here.  The full list of our “Petitions to watch” for the February 17 Conference is here. A complete list also follows the jump.

• Greenberg Traurig, L.L.P. v. Conwill
• City of Redondo Beach v. Comite de Jornaleros de Redondo Beach
• Troyanos v. Coats
• Sandel v. Williams
• Ute Mountain Ute Tribe v. Padilla
• Association for Molecular Pathology v. Myriad Genetics
• Star Northwest v. City of Kenmore
• McGinness v. Crime, Justice and America
• Reniff v. Hrdlicka
• Lozman v. City of Riviera Beach, Florida
• Williams v. Sandel
• Janssen Biotech v. Abbott Laboratories
• Vance v. Ball State University
• Hynix Semiconductor Inc. v. Rambus Inc.
• Peninsula School District v. D.P.
• Rubin v. Islamic Republic of Iran
• Bogan v. City of Chicago
• E.R.G. v. E.H.G.
• Cannella v. Florida
• City of Arlington v. Texas
• Aerolease of America, Inc. v. Veerland

In association with Bloomberg Law

This is another post in an ongoing series analyzing statistical trends at the Court. For a more complete look at the statistics that we collect on the Court, you can find all of our up-to-date charts and graphs here.

Pace of Opinions. The Court has released opinions at a blistering pace through the first half of October Term 2011. Since John Roberts became the Chief Justice in 2005, the Court has not released more than 19 merits opinions through the end of the January sitting. This year, however, the Court has released 21, including blockbusters United States v. Jones and Perry v. Perez – with the latter taking only 42 days from the Court’s notation of probable jurisdiction to a decision on the merits. The Court is likely to release a mid-major, Florence v. Board of Freeholders, during the February or March sittings.

Opinion Authorship. With the steady flow of opinions, the Justices have all been busy putting out opinions on a number of hot-button issues. Justice Scalia leads his colleagues with eight total opinions authored, including three majority opinions and three dissenting opinions. Justice Ginsburg has authored seven total opinions, comprised of four majority opinions and three concurring opinions. One Justice has yet to author even a single majority, concurring, or dissenting opinion: Justice Kennedy. In some ways his silence is surprising – the Court has disposed of nearly a quarter of the cases it will likely decide during OT11, but Justice Kennedy is nowhere to be found. On the other hand, he tends to write most frequently in high-profile, divided cases which often take longer to move from oral argument to published opinion. He has also traditionally written a low number of total opinions: last Term, only the Chief Justice and Justice Kagan authored fewer total opinions. However, compared to Justices Scalia and Ginsburg, who have authored eight and seven opinions, respectively, Justice Kennedy’s silence seems especially notable. Let’s take a look at how all of the Justices have fared during OT11.

Justice Total Opinions Scalia 8 Ginsburg 7 Thomas 4 Sotomayor 4 Breyer 3 Alito 3 Kagan 3 Roberts 2 Kennedy 0

 
Despite his silence up to this point in the Term, there is no doubt that Justice Kennedy will leave his mark on the Term by the end of June. With so many landmark decisions lined up for the Term, it seems likely that Justice Kennedy will write his fair share of noteworthy majority, concurring, and dissenting opinions.

Lone Dissents. Of the 21 merits opinions that have been released during OT11, five have been 8-1 decisions, including all four opinions released on January 10. The pace of 8-1 decisions is more notable than the mere number of opinions. During the past decade, the Court has released around 5-7 8-1 decisions per Term, although that tally rose to ten last year and has fallen to four in OT02, 05, and 08.

Stat Pack. We have also compiled an update to our OT11 Stat Pack. This edition features updates to reflect all opinions and orders released to date, as well as the introduction of our Justice Agreement charts. You can find it here.

This edition features the following pages:

• Opinions by Sitting
• Circuit Scorecard
• Cases by Vote Split
• Opinions Authored
• Justice Agreement
• Pace of Grants
• Pace of Opinions

You can also find all of our regularly updated statistics by clicking on the “Statistics” button on the top bar or by clicking here.

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The petition of the day is:

Johnson v. United States

Docket: 11-833
Issue(s): Whether 18 U.S.C. § 1958(a), which makes it a crime to travel in or use a facility in interstate or foreign commerce “with intent that a murder be committed” for money or something of pecuniary value, or to conspire to do so, requires that the interstate activity be done for the purpose of facilitating or making easier the commission of the underlying crime of murder?

Certiorari stage documents:

• Opinion below (6th Cir.)
• Petition for certiorari

In association with Bloomberg Law

The Ninth Circuit Court on Thursday barred the public release of a videotape recording of the historic trial two years ago on the constitutionality of California’s Proposition 8, banning same-sex marriage in the state.   The three-judge panel, in a unanimous ruling, found that the trial judge had promised both sides in the case that “the recording would not be publicly broadcast” and it said that the parties were entitled to rely upon that promise.  The result is to bar public broadcast of the visual record of the three-week trial held in January 2010.

The decision did not resolve any other issue in the case, including the question of whether Proposition 8 is valid under the federal Constitution, and whether the trial judge should have taken himself out of the case because he is a gay man with a long-term male partner he might one day wish to marry.  The same Circuit Court panel has those issues under study, and is expected to decide them shortly, although no timing for those decisions has been announced.

The decision against making the tape public for use by the media as they wished marked the second time that television coverage of the trial has been thwarted.  The Supreme Court, just after the opening of the trial, had barred the live or delayed broadcast of the trial proceedings in courthouses around the country.   Since then, only a few snippets of the videotape made at the trial have been shown publicly, and then only to very limited audiences.

There is currently a dramatic presentation of the trial, based on the actual trial transcript, with actors fulfilling the roles of trial participants.   Unless Thursday’s result is overturned on further review, and that seems unlikely, the videotape itself appears likely to remain sealed indefinitely.   It is now held in the vault of the federal District Court in San Francisco, where the trial was held.   The current chief judge of that court, District Judge James Ware, in September ordered the release of the videotape, finding that transparency was of fundamental importance to public support of the judiciary.   It was his ruling that the Circuit Court overturned earlier Thursday, explicitly ordering Judge Ware “to maintain the recording under seal.”

Judge Ware is now overseeing any continuing trial court activity in the Proposition 8 case, since the trial judge, District Judge Vaughn R. Walker, retired last year.   Judge Walker himself had made public some limited parts of the recording in public speeches.  Those releases, along with media requests for release of the tapes, led to the controversy that has now been resolved by the Cirwacuit Court.   The backers of Proposition 8 took that dispute to the Ninth Circuit Court, along with their other challenges to Judge Walker’s participation in the trial and to Wallker’s decision in August 2010, striking down the ballot measure under the Constitution’s equal protetion and due process clauses.

In Thursday’s Circuit Court ruling, authored by Circuit Judge Stephen Reinhardt of Los Angeles, the panel stressed that it was resolving ‘the narrow question before us on a narrow basis.”   It noted that, on several occasions during the trial, Judge Walker “unequivocally promised that the recording of the trial would be used only in chambers and not publicly broadcast.

T

The judge had made those commitments, the opinion noted, “because the Supreme Court had intervened in this very case that required him to do so.”  Thus, the opinion added, “his commitments were not merely broad assurances about the privacy of judicial records in the case; they could not have been more explicitly directed toward the particular recording at issue.”  Judge Ware, it added, was wrong in finding that Judge Walker has not made such a commitment.

Judge Ware also was wrong, the opinion said, in concluding that Judge Walker’s placing the videotape in the trial record but under seal did not bind Judge Warewhen he was asked to unseal the recording.  That second finding, the panel commented, was “an implausible and illogical application of the law.  Each of these abuses of discretion manifests the same basic error: the district court failed to appreciate the nature of the statements that the trial judge had made to the litigants, the specific factual and legal context in which he made them, and the consequences of his having done so.  The integrity of our judicial system depends in no small part on the ability of litigants and members of the public to rely on a judge’s word.”

In stressing how narrow its ruling was, the Circuit Court noted that it was not deciding any issues about the right of access under the First Amendment to such trial records, and was not deciding any of the policy issues about “how to reconcile the traditional concept of ‘openness’ in judicial proceedings with the development of technology that has given the term a new meaning.”

In association with Bloomberg Law

Although the Justices are in their mid-term recess, coverage of the Court continues to focus on last week’s decision in United States v. Jones. Writing for Fox News, Robert Samuel of NewsCore reports on the lack of consensus regarding whether the Court’s decision in Jones requires authorities to obtain warrants before attaching GPS devices to vehicles. Orin Kerr of the Volokh Conspiracy responds to Samuel’s article, arguing that the text of the Jones opinion and the Fourth Amendment’s “automobile exception” indicate that the Court’s decision in Jones does not impose a GPS warrant requirement.

Mark Sherman of the Associated Press reports that Justice Ginsburg is visiting Egypt and Tunisia during the Court’s recess. Ruthann Robson of the Constitutional Law Prof Blog links to the Egyptian television station Al Hayat TV’s interview with Justice Ginsburg. Mike Sacks of the Huffington Post also has coverage of the interview.

 

Briefly:

• At the ABA Journal, Erwin Chemerinsky contends that the Court’s decisions in Minneci v. Pollard and Ryburn v. Huff “will create new obstacles for civil rights plaintiffs” looking to advance cases in federal court.
• The editorial board of the New York Times argues that the Court should allow video broadcasts of oral arguments, citing the experience of the Supreme Court of Britain as an example.
• Brian Lyman of the Montgomery Advertiser reports that former Alabama Governor Don Siegelman filed a petition for certiorari requesting the Court to review his 2006 conviction for bribery and obstruction of justice.
• In a guest column for the Cincinnati Enquirer, Fred J. Naffziger hails the Court’s decision to uphold a “ministerial exception” to federal, state, and local laws in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC as “a ringing victory for those who believe in religious freedom.”
• Marisa M. Kashino of the Washingtonian’s Capital Comment Blog notes that several Justices regularly make time to meet with children and students visiting the Court.
• In an op-ed for the Lehigh Morning Call, Matthew Rozsa argues that Justice Kagan should not be required to recuse herself from the health care cases because “there is no historical or legal basis supporting a Kagan recusal.”
• At this blog, Amy Howe explains several recent opinions in plain English.
• At his Election Law Blog, Rick Hasen discusses the effects of Citizens United and super PACs on elections.
• Debra Cassens Weiss of the ABA Journal reports that Justice Scalia will speak on Saturday as part of this week’s ABA’s Midyear Meeting in New Orleans.

In association with Bloomberg Law

The first ruling by the Ninth Circuit Court on California’s controversial ban on same-sex marriage — but not an ultimate ruling on the ban’s constitutionality — will be released Thursday morning, the Circuit Court announced Wednesday.  Coming out at 1 p.m. Washington time (10 a.m. in San Francisco), this will be a decision on whether the courts will release, for public broadcast and public viewing in general, the videotapes made of the historic federal trial on the ban known as “Proposition 8.”

The ballot measure approved by California voters in November 2008 barred gay marriages in California, but the state Supreme Court later ruled that — while Proposition 8 did not violate the state constitution — marriages already performed among same-sex couples remained legal.  The ban itself, however, was then challenged in a federal court case that unfolded in a three-week trial two years ago.  A video recording was made of the entire trial and, although some limited excerpts of it have been played before selected audiences, the full tape remains under seal in federal court.

Last September, Chief U.S. District Judge James Ware of San Francisco ruled that the tape must be made public — a move that would make it available for broadcasting throughout the nation.   The Ware ruling has been challenged in an appeal to the Ninth Circuit, by the sponsors of Proposition 8, and the Circuit Court’s announcement Wednesday showed that the three-judge panel is ready to rule.

The same panel has under review three other issues surrounding the constitutionality of Proposition 8, including whether the ban violates the federal Constitution’s equal protection and due process clauses.   Now-retired U.S. District Judge Vaughn R. Walker ruled in August 2010 that the ban does violate both of those provisions.  The sponsors have challenged that, too, in their appeal.

Before ruling on the constitutionality, the Circuit Court panel must decide two other, preliminary issues: did the sponsors of the ban have a legal right to appeal Judge Walker’s ruling, as a matter of federal constitutional law, and should Walker’s ruling be thrown out entirely on the theory that, as a gay man who has a long-term male partner, he would have a personal interest in the outcome of the trial over which he presided, and thus should have been barred from making any ruling on the ban.

If the Circuit Court were to rule that the backers of Proposition 8 did not have a right to appeal, that would be the end of the case, at the Circuit Court level, unless the en banc Circuit Court were to agree to step in.  If the backers had that right, then the panel would move on to decide the challenge to Judge Walker.  And, if it rejected that claim, the panel would then move on to the constitutional issue.

Wednesday’s announcement dealt only with the videotape release issue, and gave no indication when the panel would rule on any other issues.   All procedural matters have concluded on all issues, so further rulings could come at any time, presumably after tomorrow.

 

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The petition of the day is:

King v. Kansas Judicial Watch

Docket: 11-829
Issue(s): Whether, when a plaintiff obtains a preliminary injunction but the case is mooted prior to resolution of the plaintiff’s claims for declaratory and permanent injunctive relief, the plaintiff is a “prevailing party” for purposes of 42 U.S.C. § 1988(b)?

Certiorari stage documents:

• Opinion below (10th Cir.)
• Petition for certiorari
• Amicus brief of Michigan et al.

In association with Bloomberg Law

The Justices are now in their mid-term recess, setting us up for several weeks in which we will not get any new opinions or orders.  But before starting their break, the Justices gave us a parting gift:  three opinions in argued cases.  And the debate generated by one of those decisions in particular could well fill the time until the Justices return.  Let’s talk about them in Plain English.

In a Term in which the Court was not considering the constitutionality of the Affordable Care Act, Texas’s redistricting plans, and Arizona’s controversial efforts to regulate immigration, the Court’s decision in United States v. Jones might well have been one of the stars of the Term.  Even this year, though, it was one to watch.  The Court was considering the case of Antoine Jones, a nightclub operator who received a life sentence for his role in a drug-trafficking scheme.  To obtain evidence against him, the government had installed a GPS tracking device on his car without a valid warrant and then used the device to track his movements for nearly a month.  The U.S. Court of Appeals for the District of Columbia threw out Jones’s conviction, explaining that the use of the GPS device violated his right under the Fourth Amendment to be free of “unreasonable searches and seizures.”

Not quite three months after an oral argument in which some Justices raised the specter of “Big Brother” monitoring ordinary people twenty-four hours a day, along the lines of George Orwell and the novel 1984, the Court affirmed the lower court’s decision.  All nine Justices agreed that Jones’s conviction should be reversed.  But they were deeply divided on how to reach that conclusion, leaving journalists and lawyers alike to debate the significance of the decision for future cases.

Five Justices – the Chief Justice and Justices Scalia, Kennedy, Thomas, and Sotomayor – focused on the government’s installation of the GPS tracking device on Jones’s car.  To these Justices, the installation and use of the device were the same as if the government had gone onto Jones’s property to collect information to use against him.  Because this kind of “trespassing” would have been a “search” when the Fourth Amendment was first adopted in the eighteenth century, these Justices reasoned, it is still a “search” today.

Justice Alito wrote a concurring opinion, joined by Justices Ginsburg, Breyer, and Kagan, in which he agreed that Jones should win but rejected the majority’s use of a “trespass” approach to reach that result.  Some of you may recall that during last Term’s oral arguments in Brown v. Entertainment Merchants Association, a challenge to the constitutionality of a California law banning the sale or rental of violent video games to children, Justice Alito poked fun at Justice Scalia’s use of originalism – a method of constitutional interpretation that relies on the intent of the men who drafted the Constitution – by telling one of the lawyers in the case that “what Justice Scalia wants to know is what James Madison thought about video games” and whether Madison “enjoyed them.” Criticizing the majority’s approach in Jones, Justice Alito returned to the debate over the role of originalism, explaining that he found it “almost impossible to think of late 18th-century situations that are analogous to what took place in this case.”  (In a flash of dry humor, Alito attempted to come up with a case that might fit the bill, describing a scenario in which a constable hides in a coach to monitor the movements of the coach’s owner, but he ultimately concluded that such a situation “would have required either a gigantic coach, a very tiny constable, or both.”)

Instead, Justice Alito would look to whether a reasonable person would have regarded the use of GPS tracking to monitor Jones’s movements as overly intrusive.  Shorter-term monitoring, Justice Alito explains, could pass Fourth Amendment muster.  But longer-term monitoring, as in Jones’s case, would not:  at least for now, society has believed that police could not, and would not, monitor every move that a person makes for four weeks.

Justice Sotomayor wrote a concurring opinion – which no other member of the Court joined – in which she indicated that she would agree with both the majority’s and Justice Alito’s reasons for finding a search in this case.  She began by explaining that, in her view, this particular case could be decided by the majority’s “trespass” test:  if “the Government physically invades personal property to gather information, a search occurs.”  At the same time, however, she expressed concern that the majority’s “trespass” test will not apply to other forms of surveillance that do not require the government to intrude on someone’s property – for example, cars or smartphones that already contain GPS tracking devices.  And of all of the Justices, she seemed to be the most concerned about privacy in the electronic age; she suggested, for example, that in cases involving electronic privacy the Court should take another look at its cases holding that Americans have no expectation of privacy in information that they voluntarily expose to others.  Notably, although Justice Alito shared Justice Sotomayor’s first concern regarding the limits of the majority’s approach, in his opinion he seemed to leave open the possibility that, as technology changes and becomes even more ubiquitous, our expectations of privacy could eventually decrease.

If you are having trouble deciphering the significance of the three opinions in Jones, you should take some solace in knowing that you are not alone:  there is a spirited debate in the media and blogosphere about what the Court actually held and what the decision means.  (Examples of this debate are available here and here.)  Even after Jones, it may be that the government does not need to get a judge’s permission to put a GPS monitor on a car to follow it for a few days.  At a minimum, though, you can be sure that the issues surrounding government surveillance and electronic privacy will likely be back at the Court soon.

Last week’s other decisions have received far less attention than the Court’s decision in Jones.  On the other hand, in both it was much easier to understand what the Court was ruling.

The conventional wisdom holds that the most junior Justice on the Court – currently Justice Elena Kagan, now in her second Term – gets stuck with the opinions that no one else wants to write.  That conventional wisdom certainly seemed to hold true when the Chief Justice announced that Justice Kagan was the author of the Court’s opinion in National Meat Association v. Harris.  At issue in the case was an interesting and straightforward question that the Court considers in one form or another fairly often:  whether a federal law “preempts,” or trumps, a state law.  However, the context in which this question arose was not for the squeamish, as it required the Court to examine the relationship between federal and state laws regulating slaughterhouses.

Enacted over a hundred years ago, a law passed by Congress – the Federal Meat Inspection Act (FMIA) – and the regulations issued under it by a federal agency create a comprehensive system to ensure that animals are slaughtered humanely and that the meat from those animals is safe for human consumption.  One of the ways that it seeks to do so is by establishing specific procedures for animals that are not seriously ill, but are still sufficiently sick or injured that they cannot walk.  Under the federal system, these animals must be slaughtered separately and then inspected to make sure that they can safely be used as food.

This case arises because a few years ago California enacted its own law regulating slaughterhouses.  Among other things, the state law prohibits slaughterhouses from buying or receiving animals that cannot walk.  It also prohibits the slaughterhouses from processing or selling meat from these animals; instead, the animals must be euthanized immediately.

The National Meat Association, a trade association that includes slaughterhouses, went to federal court, seeking to block the enforcement of the state law on the ground that it was preempted by the federal law.  The U.S. Court of Appeals for the Ninth Circuit disagreed; in its view, the state law only regulates what kind of animals – those that can walk – can be slaughtered without regulating the slaughtering process itself.

The Supreme Court unanimously reversed the Ninth Circuit’s decision.  To do so, it relied on a provision in the FMIA which states that the law preempts any other efforts to regulate slaughterhouses.  The California law, the Court explained, does exactly that by basically creating a new regulatory scheme for slaughterhouses in California.  To illustrate that point, the Court used the example of a pig that can walk when it is delivered to the slaughterhouse but then becomes disabled.  Under the California law, the pig would have to be euthanized immediately and could not be used for food.  But under the federal system, the pig would not have to be killed immediately, and its meat could be used for food as long as it passed inspection.  Because the California law imposed tougher requirements than the federal law, the Court concluded, it is preempted.

The Court’s preemption cases are often hotly contested and consequential – deciding, for example, whether accident victims can sue automobile manufacturers or parents can sue vaccine manufacturers for their children’s injuries.  Although animal-rights activists have criticized the decision in this case, so far it has proven (as the nine-zero vote might suggest) far less controversial.  But don’t take that as a sign that the nine Justices have reached a consensus on preemption.  Instead, a more likely interpretation is that the text of the federal law was unusually clear in preempting a wide range of state laws, making this an easy case.

The Court also issued a decision in Reynolds v. United States, a case interpreting the federal Sex Offender Registration and Notification Act (SORNA).  As I explained when the case was argued back in October, Congress passed SORNA to create a nationwide system to keep track of sex offenders; among other things, the law requires them to register with police where they live and work.  The petitioner in this case, Billy Joe Reynolds, was convicted of a sex offense in Missouri in 2001 and registered in that state after his release in 2005.  However, he was indicted under SORNA after he failed to register in Pennsylvania when he moved there in September 2007.

In February 2007, a few months before Reynolds moved to Pennsylvania, the Attorney General issued a rule indicating that SORNA applies to all sex offenders, including offenders like Reynolds who were convicted before the Act went into effect.  Thus, there were two potential issues in the case as it came to the Court.  The first question was whether SORNA, in and of itself, required Reynolds to register as a sex offender as soon as it went into effect in 2006, even if his conviction occurred before that.  If the Supreme Court were to agree with the Third Circuit (which heard Reynolds’s appeal) that it did, then his appeal would be over and his conviction would stand, because he does not dispute that he failed to register when he moved to Pennsylvania in September 2007. However, even if the Supreme Court were to disagree with the Third Circuit and hold that SORNA did not automatically require Reynolds to register, he would still have to deal with the Attorney General’s February 2007 rule, which made clear that he was indeed required to register.  To get past this point, he argued that – for constitutional and procedural reasons – the February 2007 rule wasn’t valid and therefore couldn’t apply to him.

By a vote of seven to two, the Court, in an opinion by Justice Breyer, answered only the first question, holding that SORNA does not automatically require offenders like Reynolds to register.  Instead, it held, sex offenders who were convicted before the Act went into effect are not required to register until the Attorney General of the United States issues a valid rule or regulation to that effect.  To reach its conclusion, the Court relied on the text of the statute, and in particular a provision giving the Attorney General “the authority to specify the applicability of the requirements of [the registration rule] to sex offenders convicted before the enactment” of the law.  In the majority’s view, that language means that the Attorney General has to say when and whether the law applies to offenders like Reynolds; until he does so, the registration requirement doesn’t apply.

Demonstrating once again that, even in criminal cases, the Court doesn’t always divide neatly on ideological lines, Justice Scalia wrote a dissent that was joined by Justice Ginsburg.  They emphasized that, under SORNA, all sex offenders are required to register.  Given that requirement, they believed that it would be more natural to read the language on which the majority relied – authorizing the Attorney General “to specify the applicability” of the registration rule to offenders convicted before SORNA took effect – to mean that although SORNA requires all sex offenders to register, regardless of when they were convicted, the Attorney General can then excuse offenders like Reynolds from having to register.

Although Reynolds won this battle, the case is far from over.  Instead, it will go back to the lower courts, which now get to iron out the second issue lurking in the case:  whether the Attorney General’s February 2007 rule, which specifically required offenders like Reynolds to register, is a valid one.  If the lower courts agree with the government that he did, Reynolds could still lose the war.

In association with Bloomberg Law