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February 14, 2014

The Ninth Circuit, in SmithKline v. Abbott Labs, Bars Lawyers From Removing Gay/Lesbian Jurors: Part Two in a Two-Part Series

Co-authored with Alan Brownstein. Cross-posted from Justia's Verdict.

In Part One of this series, we began to analyze the recent decision from the federal Ninth Circuit Court of Appeals in SmithKline Beecham Corp. v. Abbott Laboratories. The three-judge panel there held that, in light of the Supreme Court's decision last summer in United States v. Windsor (invalidating the federal Defense of Marriage Act, DOMA), all government discrimination on the basis of sexual orientation is subject to "heightened scrutiny" under the Equal Protection Clause and that, accordingly, it violates the Constitution for lawyers to use peremptory challenges to strike would-be jurors on account of the juror's sexual orientation. (For background on the Abbott case and the general topic of peremptory challenges, readers may want to consult Part One.) In particular, we discussed whether the Ninth Circuit was right to read Windsor to have signaled a decision by the Supreme Court that intermediate level scrutiny governed DOMA, and that intermediate level scrutiny should also govern all other sexual-orientation-based discrimination.

The Abbott decision is already influencing litigation involving discrimination against gays and lesbians far beyond the issue of jury selection. Earlier this week, for example, as a result of the Abbott court's reasoning and holding, the Governor and Attorney General of Nevada announced that they would no longer defend the state's ban on same-sex marriages in federal court because the arguments supporting the ban were "no longer defensible." In the space below, however, we limit our analysis to the implications of Abbott for peremptory challenges generally and sexual-orientation-based peremptory challenges in particular.

Do Peremptory Challenges Threaten to "Exclude Entire Classes of Individuals?"

As one of us has noted in earlier writings, including a column posted here, courts have been reluctant to expand the list of juror attributes on which peremptories may not be exercised in part because of a concern over slippery slopes. If peremptories cannot be used on the basis of race, and gender and (now) sexual orientation, then what about disability, age, or alienage, etc.? While Judge Reinhardt's Ninth Circuit opinion in Abbott never really addresses this question directly, he implicitly suggests that limiting prohibitions on peremptories to only those groups that benefit from "heightened scrutiny" will arrest the slippery slope. In this regard, he analogizes to and quotes heavily from the cases the Court has handed down prohibiting race- and gender-based peremptories. He says, for example, drawing on the gender-based peremptory case, J.E.B. v. Alabama ex. rel. T.B., that "striking potential jurors on the basis of their gender harms 'the litigants, the community and the individual jurors' because it reinforces stereotypes and creates an appearance that the judicial system condones the exclusion of an entire class of individuals."

From one perspective, this kind of analysis is overblown particularly in cases like J.E.B. Peremptory challenges, even if used aggressively on the basis of gender, don't necessarily threaten to remove "an entire class of individuals" from juries, because both sides of a case get the same number of peremptories. If one side is removing women (as in J.E.B.), perhaps there is reason to believe the other side would be attempting to remove men. If these opposing uses of peremptories are equally effective, then there may be no reason to believe there would be fewer women on any particular jury, let alone across all juries.

The Special Case of Numerical Minorities, and Minorities Without a Natural Majority Counterpart

There are forceful responses to this suggestion, however, that may support Justice Reinhardt even though he doesn't really address this issue (or the nitty gritty of applying heightened scrutiny at all, for that matter.) First, the neutralizing effect of the opposing use of gender-based peremptories arises, if at all, only because men and women are roughly equal in number in most jurisdictions and (somewhat less so) in the draw of the would-be jurors and replacement jurors for any particular jury. But this neutralizing or offsetting effect is not present where the bases on which peremptories are exercised involve (numerical) minority and majority groups.

A simple numerical example may help drive the point home. Suppose a jurisdiction had a demographic makeup of 75% whites and 25% racial minorities. And suppose that the initial draw of twelve would-be jurors exactly mirrors these percentages-that is, nine whites and three non-white minorities are drawn. Suppose further that each side is given three peremptory strikes, and that each side uses its peremptories to aggressively remove people based on their white or minority race, respectively. So one side (perhaps the side of a Title VII minority plaintiff) uses its three strikes to remove three white would-be jurors, and the other side uses its three strikes to remove the three people of color who were initially drawn for the jury.

So now we are left with six whites, six slots to fill, and no peremptory challenges. Those six empty slots are then filled, and again, if we are assuming a draw that reflects the demographics of the larger pool, on average only 1.5 (or 25% of six) minority jurors would be selected, and 4.5 whites (75% of six) would join the group. The overall makeup of the jury after all is said and done would be 10.5 whites and 1.5 minority folks-half the number of minority persons who were initially drawn before each side was allowed to engage in a racial peremptory war. Because this scenario could repeat itself across many or most juries, allowing each side to use race to strike prospective jurors could very likely diminish minority jury participation writ large. This systemic effect is what makes the race-based peremptory-challenge cases easy to defend for those of us who care about inclusion and fair representation of the community on juries.

And what is true for race is also true for sexual orientation, insofar as gays and lesbians are, like persons of color, numerical minorities. Indeed, peremptory challenges, if allowed on the basis of sexual orientation, may be particularly likely to reduce participation of gays and lesbians on juries, writ large, because unlike race and gender, in the sexual orientation setting, it is less natural to think about "opposing" uses of peremptories. In the racial setting, if one side excludes blacks, the other may find it advantageous to remove whites. And the same is true for removing women and men. But even if one side tries to remove one or two would-be jurors because they are gay, the other side is less likely to think to remove other jurors because they are straight.

The problem here is that equal protection doctrine both legally and intuitively doesn't always operate with the kind of symmetry that the Court has developed in race and gender discrimination cases. In race and gender cases, the Court justified its application of heightened scrutiny initially by examining past discrimination against the class of racial minorities and women. Over time, however, the Court shifted its attention in these cases away from a suspect class and toward a suspect classification. The Court's focus was no longer on whether a law disadvantaged racial minorities or women, but rather on whether the challenged law employed a racial or gender classification.

But this shift from suspect class to suspect classification seems more counterintuitive when other equal protection cases are considered. Thus we think more about discrimination against aliens than we do citizenship classifications, more about discrimination against non-marital children than marital children classifications, and more about discrimination against gays and lesbians than sexual orientation classifications. Accordingly, it would hardly be surprising to discover that lawyers might not engage in any affirmative effort to identify and remove straights from a jury, generally speaking, the way they might identify and strike men, women, blacks, whites, and gays. So if sexual-orientation peremptories are permitted, then Judge Reinhardt's concern about the exclusion of an entire group must be taken seriously.

Implementing Abbott's equal protection ban on sexual-orientation-based peremptories might not be easy in practice, however. As Kathryne Young and others point out, unlike a person's race and sex, sexual orientation isn't obvious to an outside observer, so policing sexual orientation-based discrimination may raise distinctive problems. It is often difficult enough to prove that an attorney who is striking African-Americans or women is doing so because of their race or gender when the racial or gender identity of the stricken jurors is apparent. Objections to peremptory strikes based on sexual orientation may also involve placing some would-be jurors in the uncomfortable position of having to affirm or deny their membership in an LGBT group. The Ninth Circuit began to discuss these problems, but the implementation of this new rule will require more care and attention as it is applied in practice, which is often the case after cutting-edge constitutional decisions are rendered.

The Link Connecting Jury Service and Voting

Besides practical concerns, there is a more fundamental, theoretical objection to the constitutional doctrine developed by the Supreme Court and the lower courts in this area of law. That is whether the Equal Protection Clause is the appropriate prism through which to view the problem of juror exclusion in the first place. A different set of constitutional provisions, the provisions dealing with voting and other political rights, may provide a better foundation for helping courts to decide how skeptical to be about peremptory challenges. Jury service has traditionally been tied, and analogized, to voting, and this linkage makes sense: jurors, like individuals casting ballots for members of Congress or the President, exercise their power by voting for particular results; jurors implement policy when they decide cases, just as voters help shape policy by electing representatives or adopting initiatives. Indeed, until the later Twentieth Century, voting and jury service were considered "political rights" governed not so much by the Fourteenth Amendment, but more directly by the voting rights amendments, including the Fifteenth (which prohibits race discrimination in voting); the Nineteenth (which prohibits gender discrimination in voting); the Twenty-Fourth (which in effect prohibits wealth discrimination in voting), and the Twenty-Sixth (which prohibits age discrimination in voting.)

If we take the juror-as-voter analogy seriously, then removing people from juries becomes more problematic, because certainly we would not allow governmental actors (at least not since the Supreme Court decided important voting rights cases dating back to the 1960s) to prevent any would-be voter from participating in any particular election unless there were to be a compelling justification for doing so. This may partly explain why some Justices (most notably Justice Breyer) have, over the last few decades, been unmoved by the prospect of a slippery slope regarding peremptories, because these Justices think that the Court should reconsider whether any peremptory challenges can be constitutionally exercised.

But for those who are not yet ready to dispense with all peremptories, toeholds on the slippery slope are needed. One such toehold is hinted at in the analysis above-at the very least, the groups that receive textual protection in the Constitution from discrimination in voting (groups defined by race, gender, wealth and age in the voting rights amendments) should also be protected from discrimination in jury service. So far, the Supreme Court has embraced protection for the first three kinds of groups. Prospective jurors identified by race or gender are protected under explicit equal protection holdings, and jurors identified to some extent by economic class or status have been protected more ambiguously pursuant to the Court's general supervisory powers over the federal courts, The Court has not yet ruled on whether the fourth group, defined by age, should receive comparable protection.

On this analysis, peremptories that are used to exclude gay or lesbian persons wouldn't seem to implicate the voting rights amendments (unless we shoehorned sexual orientation discrimination into sex discrimination-an analysis with persuasive force in some circumstances, but not others.) But the political-rights paradigm (as distinguished from the equal protection framework) does help to explain why one group that is protected by equal protection doctrine from state-level discrimination-aliens-have no right to avoid exclusion from juries. Indeed, through most of modern American history, non-citizens have been ineligible to serve on juries (just as they have been ineligible to vote.) California has recently considered legislation that would allow non-citizens to serve on juries (and there would be no constitutional problem with such experimentation), but it is unlikely that courts will protect their access.

From this perspective, Judge Reinhardt's reasoning correctly recognizes that while the application of heightened scrutiny under the Equal Protection Clause to laws disadvantaging a particular class is certainly relevant to the review of peremptory challenges directed at class members, it cannot be a sufficient ground for holding that these challenges are unconstitutional. The alienage cases demonstrate that a class protected by heightened scrutiny review may still be excluded from jury service. Ultimately, it is necessary to return to our earlier points about what it is, exactly, that seems so problematic about certain kinds of peremptory challenges. Peremtory challenges directed at LGBT persons are problematic because they run a particularly high risk of eliminating a distinct set of voices from juries writ large. That is the kind of harm that requires a constitutional remedy.

Will the Supreme Court Review Abbott?

It is possible that the Ninth Circuit as a whole, en banc, will decide to review the three-judge panel's decision in Abbott. What about the Supreme Court? Shortly after Abbott came down, the thoughtful New York Times legal analyst Adam Liptak suggested there might be a split between Abbott and a case from the United States Court of Appeals for the Eighth Circuit, which opined that sexual orientation is not an invalid basis for peremptories, and that such a split may be of interest to the Supreme Court. We think the Court is unlikely to exercise its discretion to review Abbott for several reasons. For starters, there really is no split with the Eighth Circuit. The language in the Eighth Circuit case suggesting that sexual orientation is a permissible basis for peremptories was dicta, since the court in that case found that the lawyer did not base the peremptory in question on sexual orientation in the first place. Moreover, the Eighth Circuit case predates Windsor, so there is no split on the precise question Judge Reinhardt's opinion answered-whether Windsor fundamentally changed the constitutional standard of review regarding discrimination against gays and lesbians. . The Eighth Circuit hasn't weighed in on that question yet, so we don't know if the two circuits really disagree.

But even if another Circuit were to disagree with Abbott in the near future, we still would not expect the Supreme Court to grant review. The Court decided Windsor inscrutably (and dodged the merits altogether in Hollingsworth v. Perry, the California Proposition 8 case) because the Court wasn't ready yet to resolve the basic same-sex marriage question, let alone whether all sexual-orientation discrimination is problematic. Taking review in Abbott would require the Court to resolve the very kinds of questions it has been trying to avoid. Last year, the Justices, as a group, seemed to want to buy some time to allow political deliberation to move forward on gay rights issues, and one year is simply not long enough for that to happen. Even though things have changed a great deal of late (with many more states embracing same-sex marriage), the times are still changing. Until the landscape begins to settle down, we would not expect the Court to reenter the picture if it can avoid doing so.

January 31, 2014

The Ninth Circuit, in SmithKline v. Abbott Labs, Bars Lawyers From Removing Gay/Lesbian Jurors

Co-authored with Alan Brownstein. Cross-posted from Justia's Verdict.

In today's column, the first in a two-part series, we begin to analyze and assess an important decision handed down last week by the United States Court of Appeals for the Ninth Circuit concerning discrimination against would-be jurors who happen to be gay or lesbian. In SmithKline Beecham Corp. v. Abbott Laboratories, a unanimous three-judge panel ruled that it violates the Fourteenth Amendment's Equal Protection Clause for a lawyer to "strike" (that is, remove) individuals from a jury panel on account of their sexual orientation. As one of us explained more fully in an earlier column previewing the Ninth Circuit oral argument last fall, the antitrust lawsuit involved HIV medications, and an attorney for one of the companies (Abbott) exercised a so-called "peremptory strike" (also known as a "peremptory challenge")-effectively removing an individual from inclusion in the jury-because the would-be juror was "or appears to be, could be, homosexual." Peremptory challenges allow each side of a case to strike an equal number of would-be jurors for no supportable reason, solely because of a lawyer's hunches or intuitions about how a particular person might behave and decide as a juror.

In holding that judicial acceptance of Abbott's peremptory challenge would violate the Constitution, the Ninth Circuit opinion, authored by Judge Reinhardt, made a number of analytic moves. First, the panel had to determine whether an earlier three-judge Ninth Circuit panel ruling from 2008, Witt v. Department of the Air Force-which held that governmental actions discriminating on the basis of sexual orientation need only satisfy the lowest, most deferential, "rational basis" standard in order to be upheld under the Equal Protection Clause-is still good law. If Witt's teaching that sexual orientation discrimination is not, as a general matter, subject to any kind of beefed-up constitutional scrutiny is still good law, it would be binding on the SmithKline panel judges, and the panel would have been required to come out the other way in SmithKline, since the Supreme Court has stated that peremptories may be used to remove individuals who are members of a class that is protected only by rational-basis review.

The SmithKline panel instead decided that Witt's rational-basis-review approach is inconsistent with-and thus no longer binding because of-the Supreme Court's ruling in United States v. Windsor, the case decided last summer that struck down the Defense of Marriage Act (DOMA), the federal law denying recognition to same-sex marriages. The Ninth Circuit found Witt to be inconsistent with Windsor because the Court in Windsor, whether the Justices admitted it or not, effectively applied "heightened scrutiny" (rather than rational-basis review) in holding that the DOMA violated equal protection guarantees. The Ninth Circuit's reading of Windsor was crucial to getting around Witt. In this vein, the Ninth Circuit had to (and did) decide not only that Windsor applied heightened scrutiny to DOMA, but also that Windsor is not limited by the facts or context of that case, and instead stands for the legal proposition that heightened scrutiny now applies to all government actions that discriminate on the basis of sexual orientation. Based on that conclusion, the Ninth Circuit went on to determine the result of heightened-scrutiny review of sexual orientation-based peremptory challenges under the Fourteenth Amendment.

In the space below, we focus on the beginning of Judge Reinhardt's analysis and examine the Ninth Circuit's initial moves-the notion that subsequent Supreme Court authority could, by implication, reverse earlier clear Ninth Circuit precedent, the determination that Windsor is best read as applying heightened scrutiny to DOMA, and the contention that Windsor effectively requires heightened scrutiny to be applied to all government discrimination on the basis of sexual orientation. In Part Two of this series, we examine some of the later moves that the Ninth Circuit made-including the application of heightened scrutiny in the peremptory challenge context-and also explore where the case may go from here.

Was the Ninth Circuit Right That Supreme Court Authority Can Implicitly Erase Earlier Circuit Precedent?

No one would deny that a Supreme Court ruling that directly contradicts a Circuit Court opinion, whether the Circuit opinion is recent or old, would effectively eliminate the precedential authority of the lower court's ruling. But the issue in SmithKline is a little different. The Ninth Circuit conceded that Windsor (the recent Supreme Court case) doesn't directly contradict Witt (the older Ninth Circuit ruling), but determined instead that the reasoning of Windsor is in tension with Witt-that the two cases seem to reflect different mindsets-so that if we had to predict how today's Supreme Court would decide Witt, we might bet that the Court would reach a result that is different from that reached by the Ninth Circuit in Witt.

One possible problem with the Ninth Circuit's getting around Witt by noting some analytic tension between it and Windsor's reasoning is the Supreme Court's own admonition that lower courts should not "underrule" older cases based on predictions about the direction in which the Supreme Court is headed. As the Court put the point in 1989 in Rodriguez de Quijas v. Shearson/American Express, Inc.: "If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the [lower courts] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions."

One might think that this principle prevents the Ninth Circuit from ignoring Witt in favor of the new direction that is reflected by Windsor. But, in fact, the Shearson/American Express principle may have no application in this setting, because Witt (the older case that is arguably on point) is not a Supreme Court case, but rather simply a prior three-judge panel case from the Ninth Circuit. It is not obvious why three-judge panels of a Circuit court should bind subsequent three-judge panels of the same court in any event. The best answer is probably the need for some stability so that persons within a Circuit can know "what the law is." But these intra-court stability concerns are less weighty than the reasons that explain why Circuit courts have to obey older rulings from a superior court-the Supreme Court (or an en banc panel of the Circuit). "Vertical" hierarchy and obedience to precedents of higher courts implicate different concerns than "horizontal" stare decisis (whereby a court pays deference, even strict deference, to its own rulings). So the Ninth Circuit was correct to carefully examine Windsor to assess the level of tension between it and Witt. (If the Supreme Court had, in some prior case, clearly ruled that sexual orientation discrimination implicates only minimum-rationality review and not heightened review, then the Shearson/American Express principle might apply here. But the clear holding in Witt-that minimum rationality review applies-came from a three-judge Ninth Circuit panel, not the Supreme Court.)

Did the Court Properly Read Windsor as a Case Employing Heightened Scrutiny?

Judge Reinhardt concedes, as he must, that the Windsor opinion does not explicitly state the level of scrutiny that the Court is employing to strike down DOMA. Accordingly, he looks to three factors that Ninth Circuit precedent requires him to consider in order to determine whether the level of scrutiny utilized in Windsor was, in fact, more rigorous than the highly deferential, rational-basis standard of review. The three factors are: (1) whether the Windsor opinion considered post-hoc rationalizations for DOMA-hypothetical purposes that might conceivably justify the law-or instead focused only on the actual goals Congress relied upon in enacting the statute; (2) whether the Windsor opinion required that there be a "legitimate" state interest to "justify" the effect of the law; and (3) whether the cases that were cited in Windsor themselves applied rational-basis review or heightened scrutiny.

With regard to the first factor, Judge Reinhardt correctly concludes that Justice Kennedy's opinion in Windsor examines the actual purpose of DOMA in considerable detail, and that an emphasis on the legislature's actual purpose strongly suggests that some form of heightened scrutiny is being applied.

An analysis of the second factor-the requirement that there must be a legitimate state interest to justify the challenged law-is more complicated, however, because, in some circumstances, we think the insistence on "legitimate" purposes for upholding a law is consistent with an application of rational basis review. And in other contexts, doubts about the legitimacy of the state's purpose may undermine the validity of the law, but they do so outside of the framework of rational basis review, intermediate level scrutiny, or strict scrutiny. For these reasons, the use of the word "legitimate" is not a signal of heightened scrutiny.

When courts focus on the state's interest in equal protection cases, what differentiates rational basis review from intermediate-level scrutiny or strict scrutiny, as a formal doctrinal matter, is that the latter two standards require, respectively, an "important" or "compelling" state interest. Conversely, a modest or even marginal state interest can satisfy rational basis review. But under all three standards, the state's interest must be "legitimate." Suppose, for example, that Congress had adopted DOMA for the express purpose of complying with what Congress understood to be divine law condemning same-sex marriage. Obedience to religious requirements is not a legitimate state purpose. Even under rational basis review, a court cannot use this purpose as a post-hoc rationalization to sustain a law.

Another state interest that lacks legitimacy, and which is relied on in cases cited in Windsor, such as Texas v. Lawrence and Moreno v. Department of Agriculture, is the goal of degrading or demeaning a group because of bare animus toward its members. The nature and scope of this characterization of a purpose as "illegitimate" remain unclear. Certainly, the goal of demeaning and punishing drug dealers would not undermine the constitutionality of statutes criminalizing drug trafficking.

Moreover, and more directly relevant here, the conclusion that a law serves an illegitimate state interest does not trigger the application of heightened scrutiny so much as it does an automatic invalidation of the law without further review. Heightened scrutiny is often described as mechanism that enables courts to flesh out impermissible state purposes. If a court determines at the outset that a law serves illegitimate purposes through an independent analysis, there is no reason to "flesh out" what the court already knows.

Indeed, if we examine this section of Judge Reinhardt's opinion more closely, it appears that his emphasis on an inquiry into the legitimacy of a law does not really pertain to questions about whether a law serves impermissible purposes. Instead, Judge Reinhardt seems primarily concerned that the Windsor opinion discussed the harm caused by DOMA and the government's need to justify such consequences if the law was to withstand the equal protection challenge directed against it. Reinhardt argues that this kind of implicit balancing of interests suggests more rigorous scrutiny than the highly deferential rational basis standard of review.

Indeed, it does. But does this necessarily mean that the Windsor opinion was applying heightened scrutiny to DOMA? As Judge Reinhardt acknowledges in his discussion of the third factor-an examination of the cases cited in Windsor to determine whether or not they themselves employed heightened scrutiny-sometimes the Supreme Court has applied rational basis review to a law, but the scrutiny it employed was more rigorous than the conventional leniency associated with a rational basis analysis. Moreno, dealing with discrimination against "hippie" households, was one such case. Romer v. Evans, involving discrimination against gays and lesbians, also cited in Windsor, is another, as is Cleburne v. Cleburne Living Center, Inc., (a case that wasn't cited in Windsor) involving discrimination against the mentally retarded. One can certainly argue with some justification that the analysis in these hybrid rational basis cases arguably parallels the analysis in Windsor.

But it is less clear to us than it is to Judge Reinhardt that these "rational basis with teeth" cases should be characterized as applying heightened scrutiny, such that other laws burdening the same groups at issue in those cases in other settings would be subjected to rigorous review. As a general matter, we see no evidence that Cleburne or Moreno has changed the level of review applied to laws discriminating against the mentally retarded or "hippie" groups. True, these not-so-deferential rational-basis cases cannot easily be incorporated into the multi-tier system of review that the Court utilizes in equal protection cases. But at least for now, until the Supreme Court tells us otherwise, they are rational-basis cases.

As Judge Reinhardt acknowledges (and as we noted earlier), the Supreme Court has stated that "'(p)arties may . . . exercise their peremptory challenges to remove from the venire any group or class of individuals normally subject to 'rational basis' review.'" Accordingly, one may argue with considerable force that as long the Court considers cases like Romer, Moreno, and Cleburne to have been decided under rational basis review, lower courts adjudicating equal protection claims against the use of peremptory challenges to strike gays, hippies, and the disabled from juries have no discretion to invalidate these jury selection decisions.

Even if Windsor Applied Heightened Scrutiny, Did It Do So Under Equal Protection Alone?

Finally, Judge Reinhardt's opinion is as notable for what it omits as for what it says. There is virtually no mention in SmithKline of the federalism argument that makes up so much of Justice Kennedy's opinion in Windsor. Clearly, Justice Kennedy's majority writing in Windsor emphasizes the fact that the institution of marriage has been, and should be, a subject of state, rather than federal regulation. What is less clear in Windsor, however, is how this federalism analysis fits together with Justice Kennedy's equal protection arguments. The uncertainty about precisely how the structural (federalism) and rights-based (equal protection) arguments fit together to support the Court's holding in Windsor may have contributed to Judge Reinhardt's decision to ignore the federalism aspect of Windsor altogether, and discuss the equal protection analysis in isolation.

Yet we think there may be a meaningful way to integrate the federalism and rights-based arguments in Windsor. There is sometimes a structural dimension to equal protection doctrine. In equal protection cases involving discrimination against non-citizens, for example, the Court sharply distinguishes between the level of review applicable to state laws discriminating against non-citizens, and the standard applicable to federal laws involving similar discrimination. Because the power to regulate immigration and naturalization is vested in the national government, state laws discriminating against non-citizens are more problematic and suspicious than discriminatory federal legislation. Accordingly, state laws discriminating against non-citizens receive much more rigorous review. Even if the federal government can permissibly regulate where resident aliens may live in the United States, a state has no business burdening their mobility.

A similar but mirror image analysis arguably applies in Windsor. Because marriage is quintessentially a matter of state sovereignty and control, it is federal laws discriminating against couples a state deems to be married that seem suspicious and problematic and warrant at least rational basis with teeth review. Under this analysis, however, it is harder to read Windsor as holding that all laws discriminating against gays and lesbians should receive heightened scrutiny, where there is no structural basis for distinguishing between the exercise of federal or state sovereignty in the government's actions.

In Part Two of this series, which will appear on this site on February 14, we will continue our analysis of Judge Reinhardt's approach, and also discuss the likelihood that the Supreme Court would be interested in this case.

January 27, 2014

The Broader Lesson from Garcia's Fight to Practice

by Dean Kevin R. Johnson
Republished from The National Law Journal.

On Feb. 1, an undocumented lawyer will be sworn-in to the California State Bar. The move comes almost one month after the California Supreme Court held that undocumented immigrants were not automatically disqualified from being licensed as attorneys in the Golden State. Under the ruling, Sergio Garcia, the undocumented immigrant at the center of the controversy, can be admitted to the state bar.

Garcia-like many others in the country-was brought to the United States as a child, and remained undocumented through no fault of his own. He grew up in Northern California, graduated from college and law school, passed the notoriously difficult California bar exam on the first try, and satisfied the Committee of Bar Examiners of his good moral character.

Besides the important ruling that allows for the admission of Garcia to the bar, the case reveals the daunting real-world challenges facing undocumented immigrants who were raised and educated in this country, and are undeniably American in all respects except for their immigration status. This is not the first time (or the last) that the courts have faced such issues.  In 1982, the U.S. Supreme Court in Plyler v. Doe invalidated a Texas law that effectively prohibited undocumented children from attending public elementary and secondary schools. More generally, state legislatures in recent years have sought to better integrate undocumented immigrants into civil society by, among other things, extending driver's license eligibility and nonresident tuition and fees for public colleges and universities.

For many years, Congress has considered versions of the DREAM Act (an acronym for Development, Relief, and Education for Alien Minors), which, among other things, would create a path to legalization for undocumented youth. Ultimately, DREAMers convinced the Obama administration in 2012 to provide stop-gap, temporary relief through the Deferred Action to Childhood Arrivals program-one of the positive immigration achievements of the Obama administration. Congress, however, should act on a broader scale to allow the DREAMers to be full Americans.

Deficiencies in the Law

Moreover, Sergio Garcia's case demonstrates serious deficiencies in the U.S. immigrant visa system that require reform. Decades ago, Garcia became eligible for an immigrant visa sponsored by his parents, who had become lawful permanent residents. Garcia submitted the paperwork to apply for a visa in 1994. Now, nearly 20 years later, he is still waiting for a visa. Current U.S. immigration law is the cause of the delay. The law imposes a limit-known as the per-country ceiling-on the number of immigrant visas issued to nationals from any single country per year. The ceiling makes the line for a visa decades-long for prospective immigrants in certain visa categories from Mexico, Garcia's native country, as well as India and the Philippines.

The per-country ceilings have contributed to the growth in the undocumented immigrant population in the United States, especially from Mexico, the nation with the highest demand for immigration to the United States. Many immigrants feel that delays of as long as 20 years for lawful immigration to rejoin parents and other family members are unrealistic, and they choose the unauthorized route. To limit the incentives for undocumented immigration, Congress needs to consider something more flexible than the per-country ceilings and ensure that the law allows for the admission of immigrants in numbers that are more closely aligned to immigration demand.

In addition, many low- and medium-skilled noncitizens who seek to work in this country are ineligible for any visa under current U.S. immigration law and, thus, don't even have a "line" to wait in. The law offers few avenues for legal migration of these workers, and is another flaw in the immigration laws that warrants congressional attention. The end result of the current immigration system is that roughly 11 million undocumented immigrants today live in the United States. About 60 percent of those immigrants are from Mexico.

As President George W. Bush said in a 2006 speech, undocumented immigrants "live in the shadows of our society . . . yet we must remember that the vast majority . . . are decent people who work hard, support their families, practice their faith, and lead responsible lives." Congress needs to address the status of those who live in the shadows-those like Sergio Garcia.

Despite the California Supreme Court ruling allowing him to practice law, Garcia's options as a licensed lawyer appear to be limited because of his uncertain immigration status. For example, the Obama administration had effectively claimed that the law prohibits an undocumented attorney from being employed by a law firm or a corporation. In the end, the court's decision still does not allow this high-achieving Sergio Garcias of the world to become fully integrated into American society.

Ultimately, the Garcia case illustrates precisely why Congress should enact immigration reform. The nation needs to address the situation of the DREAMers - undocumented youth of good character who want to live the American Dream and sorely deserve a path to legalization. The same is true for many of the millions of undocumented immigrants living in the shadows of our America. To avoid the growth of a future undocumented population, Congress should increase the limited number of immigrant visas and eliminate decades of backlogged visa applications so that law-abiding noncitizens can lawfully come to the United States.

Kevin R. Johnson is dean of the University of California, Davis, School of Law and was one of the attorneys on the briefs for the State Bar of California in the Sergio Garcia case.

January 13, 2014

New UC Davis study reveals how people want their lawsuits resolved

UC Davis issued this news release today, highlighting Professor Donna Shestowsky's exciting new research.

New UC Davis study reveals how people want their lawsuits resolved

As court systems throughout the country struggle to deliver civil justice in the face of budget cuts, a new study by a UC Davis law professor finds that people involved in civil lawsuits prefer mediation to nonbinding arbitration and like judge trials more than jury trials.

In her study, "The Psychology of Procedural Preference: How Litigants Evaluate Legal Procedures Ex Ante," Donna Shestowsky, who teaches negotiation strategy, alternative dispute resolution and legal psychology, reveals the legal procedures preferred by people involved in civil lawsuits at the start of their cases. The findings could help court systems design future generations of court-connected alternative dispute resolution programs by providing guidance on which procedures litigants find more appealing.

ADR programs offer procedures that are alternatives to trial; mediation and nonbinding arbitration are common forms of ADR.

"The clear overall preference that litigants expressed for mediation over nonbinding arbitration has important implications for courts that want to draw litigants into their voluntary ADR programs, especially if they offer only one ADR procedure," she said. "This finding helps to resolve a long-standing debate over which of the two procedures litigants prefer."

Overall, litigants liked mediation, the judge trial, and negotiations that included the litigants along with their attorneys more than all other examined procedures. A judge trial is where a judge determines the verdict rather than a jury.

The study also found that compared to men, women were significantly less attracted to jury trials and binding arbitration.

Repeat players - those who had been either a defendant or plaintiff in a prior case - liked the idea of using binding arbitration for their case more than first-time litigants. "This finding resonates with the idea that repeat litigants are more likely than first-time litigants to appreciate the fact that trials are often associated with painful, protracted discovery and the threat of an appeal."

The study also found that litigants preferred negotiations that included the parties along with their attorneys to negotiations that took place between the attorneys only. And the more litigants were confident of a trial win, the less they liked the option of the attorneys negotiating without the parties also being present.

Shestowsky's project is the first multijurisdictional study that will explore how civil litigants assess procedures at various points during the same lawsuit. This is the first publication in a multipaper series, looking at litigants' preferences at the beginning of a case. Subsequent papers will explore litigants' views at the end of their lawsuit. This article appears in the latest edition of the Iowa Law Review, released Jan. 1.

The article is available online.

Shestowsky collected extensive data from more than 400 litigants, in 19 different states, whose cases were filed in court systems in California, Oregon and Utah.

Case types included contract, employment, civil rights, medical malpractice, personal injury, and property disputes. This project was funded by competitive grants from the National Science Foundation, the American Bar Association Section on Litigation and the University of California.

January 3, 2014

Some Political and Constitutional Questions Raised by Tim Draper’s “Six Californias” Plan to Split Up California

Cross-posted from Justia's Verdict.

Silicon Valley billionaire investor Tim Draper recently unveiled a plan to divide up California into six separate states because, in his view, "California's diverse population and economies [have] rendered the state nearly ungovernable." In the space below, I begin to identify some of the political and constitutional hurdles this proposal faces. Because the topic is vast and complicated, in today's column I can do no more than spot and preliminarily analyze some of the major issues; if and when the proposed measure successfully moves through various stages of the political process, I shall likely offer a more detailed analysis of many of these questions.

A Summary of Mr. Draper's "Six Californias" Proposal

Mr. Draper has drafted and submitted to the California Attorney General an initiative measure that would, if it qualifies for the ballot and is then enacted by the State's voters, amend the California constitution and statutes to provide for the creation of six separate states out of what currently makes up the Golden State. The six new states the measure creates are: the State of Jefferson (consisting roughly of the rural counties north of the Sacramento area all the way to the Oregon border); the State of Northern California (consisting roughly of an area from Marin and Sonoma Counties on the Pacific Coast, extending eastward through the Napa and Sacramento regions, and to the northern Sierra mountains all the way to Nevada); the State of Central California (consisting primarily of the agriculture-based Central Valley and the middle part of the Sierra mountain range); the State of Silicon Valley (consisting generally of the San Francisco-Oakland-San Jose metropolitan region, extending South to the Monterey/Carmel area); the State of West California (consisting primarily of the Los Angeles region North to the Santa Barbara area); and the state of South California (consisting generally of San Diego, Orange and Riverside Counties).

The proposed lines dividing each of the six new states are provisional; under Draper's proposal, over the next few years, any county that adjoins any of the proposed states can choose to become part of that contiguous state, provided that the counties that are provisionally in that neighboring state also agree to add such a county. On January 1, 2018, the Governor of California is to certify to Congress that California has consented to the creation of six separate states that are defined along the lines described above-subject to any modification that has occurred because some counties have successfully attempted to join contiguous proposed states-and to ask Congress to approve the creation of these six new states.

Draper's initiative also has a provision appointing the "official proponent" of the measure (presumably himself) as an "agent of the State of California" for purposes of defending the initiative measure against legal challenge (presumably in federal, as well as state, court). That provision gives the official proponent the power to "supervise" any legal defense provided by the Attorney General, and the power to hire, at public expense, outside counsel who will then be made "Special Deputy Attorney General," to defend the measure if the proponent, in his "sole determination," feels that the Attorney General is "not providing an adequate defense."

On its face, the plan sounds far-fetched; indeed, it may be tempting to treat this proposal as one of the hundreds of initiative ideas in California that never go anywhere. But to do so would be to ignore the fact that Draper has indicated that he will provide whatever resources are needed to gather the signatures to qualify the measure for the ballot. And with his money, stature, and connections, Draper is likely to be able to succeed in at least getting the measure in front of the state's voters.

What Happens After the Measure Qualifies: Political Hurdles in California

Let us assume that Mr. Draper's measure is put before the voters. It would then, of course, face political as well as legal hurdles. As a political matter, it would have to win support both in California, and in Washington DC, because the creation of new states requires, under Article IV of the federal Constitution, the consent both of the legislatures of the involved states and of Congress. As to the state electorate, while it may be true that California (like the nation and like many other states) has endured problems in self-governance over the last decade-plus, whether Californians are ready to make such a radical change is far from clear. There is, to be sure, tension between different parts of California-the communities that make up the large and densely populated metropolitan areas on or near the coast have very different demographic, economic, cultural, and political characters than do the smaller communities located in the more rural areas to the East and Far North of the State. And there are rivalries between the Bay Area/Silicon Valley region, on the one hand, and the sprawling Southern California, Los Angeles-based, region on the other.

But there are also important centripetal forces at work here, forces that might be highlighted by some of the specific state lines that Draper proposes. Even though Draper's proposal allows for some tinkering with the boundaries pursuant to each county's authority to attempt to opt in to contiguous states, his provisional lines are an important starting point that will greatly influence voters throughout the state who have to approve the measure before any tinkering might begin. (And remember that a county can move only to a contiguous state-not to any of the six it might like best-and only if the counties in the contiguous state agree, which is far from guaranteed.) Although Mr. Draper has posited publicly that all six new states would prosper (presumably more than each of these regions does today) once they are freed from the currently unworkable yoke of California government, could the Central Valley and rural Northern counties really make do without state tax revenue that comes from the coastal and Sacramento areas? Would the new states of Jefferson and Central California have nearly the money they need to educate their children, or to maintain their infrastructures? (There is only one University of California campus - the promising but still very young UC Merced - and a few Cal State campuses located in these two new proposed states). Would relatively wealthy Marin County want to subsidize the Sierra communities of Placer and Nevada counties more or less all by itself, without the help of the rest of the Bay Area or the LA or San Diego regions? Does the Bay Area really want to let go of all the entertainment resources of the LA region? And does SoCal really want to give up all of the natural, cultural and educational resources associated with the North? And so forth.

Political Hurdles in DC

But let us imagine that a majority of Californians want to carve the state up, more or less along the lines that Draper offers. What about Congressional approval? There are plenty of political hurdles there too. Indeed, there at least two axes on which one might imagine opposition in Congress-interstate federalism and partisan posturing. As to interstate federalism, some states (and their representatives in DC) might be reluctant to reduce their current relative voice in the federal government, a consequence that would result from increasing California's share in the Senate from 2% (two out of 100) to 11% (12 out of 110, because six states would mean 12 Senators under the federal Constitution's command that the "Senate shall be composed of two Senators from each State.") Getting low-population states-that currently enjoy the fact that they have equal say with more populous states in the Senate-to effectively dilute their share of congressional ownership might be difficult.

On the other hand, some members of Congress may be moved, when considering a measure like Draper's, more by political-party considerations than by the clout their state wields in DC. Under the provisional lines Draper proposes, of the 12 Senators who would come from the six Californias, we could expect four (from Silicon Valley and West California) to consistently be Democrats, and four (from Jefferson and Central California) to lean Republican, with the other four (from Northern California and South California) harder to predict. But we could have a situation in which California moves from its current position of consistently producing two Democrat and zero Republican Senators (a net plus-two for the Democratic Party) to a situation in which the Californias could produce as few as four or five Democrats and as many as seven or eight Republicans (resulting in a net minus-two or even minus-four for the Democratic Party.) If the Democrats retain control of the U.S. Senate in 2018 (when Draper's proposal would be sent to DC), or if the President in 2018 is a Democrat, then Draper's measure might face partisan opposition in the Senate or in the White House (which has the power to veto any such measure), And all of that is to say nothing about how the creation of six Californias might affect the electoral college and partisan presidential politics, an extremely complicated question in its own right.

It's hard to know how any of these forces in DC might play out. Some analysts have argued that partisan considerations, more than other factors, have driven earlier episodes in American history in which new states have been added. If that was, and remains, true (a big "if"), perhaps some of the small states (that like being overrepresented in the Senate) tend also to be Republican states (that would like to take away the Democratic Party advantage in U.S. Senators from California.) And maybe some small states might think that they will share some rural, agriculture-based attitudes with at least two and maybe three of the newly created six Californias-attitudes that tend not to be currently reflected in the two Senators whom California currently sends to DC (because these two Senators are understandably influenced more by the coastal regions of California, where voters are concentrated.) Or perhaps federal Representatives and Senators from other states will be risk-averse, and simply not want to take a chance of increasing California's clout in federal processes (especially because all of the six new Californias might, for some time, continue to be tied to each other economically and culturally). In this regard, it bears noting that no new states have been added to the United States in over 50 years, and that no new state has been created out of an existing state for more than 150 years (when West Virginia was created out of territory wholly located in Virginia.)

Several Constitutional Issues Implicated by Draper's Proposal

Since space is short, I shall simply list four kinds of constitutional questions implicated by Draper's plan; detailed analysis of these, and other, constitutional questions must await another time.

  1.  Can the people of a State validly authorize the creation of a new state by popular initiative? Article IV, Section 3, of the federal Constitution requires the "consent" of the "legislature" of each state whose territory is affected by a proposal to create new states. Can the people act directly as a "legislature" for these purposes, or do the elected folks in Sacramento have to sign on?
  2. Even if the people can constitute the "legislature" of the state for these purposes, would enactment of Draper's proposal constitute "consent" when the precise boundaries of the six new Californias are not definitively before the voters when they vote? Draper's proposal makes clear that its enactment is intended to constitute Article IV "consent" to the creation of six new states, but can that consent be effective when the voters have no way of knowing what the new states will actually look like until the county opt-in process is completed? In other words, might the power Draper's proposal gives to counties to modify the provisional state lines constitute an impermissible delegation of the state legislature's authority to consent to the actual creation of the new states?
  3. Can new states be validly created out of territories located entirely within existing states? Founding history and past practice (especially the additions of Kentucky and West Virginia) would suggest that the answer to this is clearly yes, but some scholars (most elaborately Michael Paulsen) have pointed out that Article IV's text and punctuation could easily be read to mean that while new states can be formed out of the territory formerly belonging to two or more states, a single state cannot be carved up into multiple ones.
  4. Would the part of Draper's proposal authorizing Draper as an "agent of the State of California" for purposes of defending the measure in Court survive the standing analysis in the Supreme Court's Hollingsworth v. Perry case last year, in which the Court rejected the claim of standing by official proponents of Proposition 8 (California's initiative ban on same-sex marriage) to defend that measure in federal court? And how does the authorization provision in Draper's proposal square with Article II, section 12, of the California constitution, which provides that "[n]o amendment to the Constitution . . . by the Legislature or by initiative, that names any individual to hold any office. . . may have effect."

I recognize, of course, that all of these constitutional questions are complicated, and that some might be avoided by federal courts under the so-called "political question" doctrine. But each is worthy of further exploration, and many of them might influence (or at least be cited by) members of Congress or others who are inclined against the measure. I'll write more on these constitutional questions if Draper's proposal turns out to have legs.

January 2, 2014

Award Winning Blog Entry: "Getting Law Review Fans Out of the Closet"

Congratulations to Professor Gabriel "Jack" Chin, whose PrawfsBlawg post "Getting Law Review Fans Out of the Closet: Liptak on Jacobs and Waxman" just won a Green Bag Exemplary Writing Award.



Here's the award winning entry in its entirety, cross-posted from PrawfsBlawg (originally published on October 21, 2013):

Getting Law Review Fans Out of the Closet: Liptak on Jacobs and Waxman

In a column today, Adam Liptak discusses some familiar criticisms of law reviews.  I believe law review articles are often high quality, useful and influential, as is reflected by my recent series of interviews with authors of articles cited in the U.S. Supreme Court.  Liptak quotes Second Circuit Judge Dennis Jacobs as saying in 2007 "I haven't opened up a law review in years.  No one speaks of them.  No one relies on them."  Former SG Seth Waxman is quoted as saying in 2002 that "Only a true naif would blunder to mention one at oral argument."  Do not believe either of them for a second; the record suggests that these cynics are closet idealists who regularly enjoy a good law review article.

As for Judge Jacobs, a Westlaw search shows he has cited law reviews dozens of times in his years on the bench.  In 2005, he cited a law review article for a point of sentencing law, and then as an "accord," cited a Stevens and Souter dissent.  See Guzman v. United States, 404 F.3d 139, 143 (2d Cir. 2005).  That is, Judge Jacobs cites the views of two U.S. Supreme Court justices to buttress the conclusions of a law review article.  The next year, in At Home Corp. v. Cox Communications, 446 F.3d 403, 409-10 (2d Cir. 2006), he string-cited three law review articles to explain the realities of leveraged buyouts.

In truth, Judge Jacobs obviously--obviously--loves law review articles.  How can we tell?  He likes to cite articles raising interesting legal wrinkles, but which were not raised or precisely presented by the facts.  See Briscoe v. City of New Haven, 654 F.3d 200, 208 n.13 (2d Cir. 2011) (citing article offering novel reading of a recent Title VII case); Carvajal v. Artus, 633 F.3d 95, 109 n.10 (2d Cir. 2011) (citing article raising novel reading of full faith and credit clause); Pescatore v. Pan Am, 97 F.3d 1, 13 (2d Cir. 1996) (citing articles dealing with "decades-old controversy over choice of law doctrine").   He also likes empirical work.  See, e.g., United States v. Whitten, 610 F.3d 168, 201 n.25 (2d Cir. 2010).    

Judge Jacobs has cited articles written by students, judges and scholars, century-old chestnuts and brand new work, he cites celebrities like Akhil Amar and William Stuntz writing in the Harvard Law Review and the Yale Law Journal, and lesser-known scholars writing in less fancy venues.  In short, the record shows that he relies on law review articles when he concludes their research and analysis makes them worth relying on, which is exactly what judges should do. 

As for Seth Waxman, of course it would be extremely rare for an advocate to mention an article in oral argument, just as it would generally be silly to waste much time emphasizing the fact that a unanimous state supreme court or en banc circuit court agreed with your position.  He is quite right if his point is that by the time the case is in the Supreme Court, naked appeals to  authority (other than binding Supreme Court decisions) are unlikely to help.  And yet, a search of the Supreme Court brief database on Westlaw shows that Waxman authored 149 briefs citing law review articles, and 423 briefs in total.  So more than a third of the time, he concluded that citation of a law review article would be more persuasive than simply incorporating the article's cases and argument in the brief (which would be fair game--briefs and opinions need not be original).  His choice to rely on articles is the clearest possible vote of confidence in the utility of scholarly research.  On behalf of the legal academy, I say to Mr. Waxman: "You're welcome."

December 20, 2013

The Question of Disparate Speech Impact in the Supreme Court’s Upcoming McCullen v. Coakley Case

Co-authored with Professor Alan Brownstein. Cross-posted from Justia's Verdict.

Today we analyze a very intriguing issue raised by a case that will be heard by the U.S. Supreme Court next month, McCullen v. Coakley, in which the plaintiffs challenge a Massachusetts law limiting pedestrian traffic near abortion clinics.  The statute in question makes it a crime to "enter or remain on a public way or sidewalk adjacent to" a reproductive rights clinic within 35 feet of "any portion of an entrance, exit or driveway" of the facility.  The statute exempts from this prohibition persons who are entering or leaving the facility, employees or agents of the facility acting within the scope of their employment, emergency and utility personnel doing their jobs, and people who are using the sidewalk or public way to reach a destination other than the facility.  The law's challengers-individuals who seek to communicate with women who may, at that place and moment, be contemplating abortion-allege that the law violates the First Amendment.  The challengers lost in the U.S. Court of Appeals for the First Circuit, and in June the Supreme Court granted review.

The case raises many important constitutional issues.  Indeed, this is not the first time the Supreme Court has agreed to review, under the First Amendment, judicial or legislative attempts to regulate protest activity taking place outside medical facilities and abortion clinics, and among the questions presented in McCullen is whether the Court should overrule Hill v. Colorado, one of its important earlier cases relating to these matters.

Content/Viewpoint Based vs. Content-Neutral:  A Crucial Distinction

In the space below, we do not attempt to address all the significant constitutional issues the McCullen case presents.  Instead, we limit ourselves to the relatively confined question of whether a law like this one should be characterized as a "content-neutral" regulation of the "time, place or manner" of speech or conduct, or instead whether the law should be viewed as one that discriminates on the basis of the content or viewpoint of speech (or speakers).

This question is profoundly important, because under well-established First Amendment doctrines, if a law is content- or viewpoint-based, it is subject to the strictest judicial scrutiny, and will almost always be struck down. Content-neutral regulations of speech, by contrast, are reviewed under a more lenient, intermediate level of review and are often, although not always, upheld.  (We take no position in this column on how the Massachusetts law in question, or other situations we examine, should fare under the intermediate scrutiny test.)

Usually the Court determines whether a law is content- or viewpoint-based by looking at how the law is written.  For example, a law that prohibits all picketing in an area but exempts labor picketing is content-based, because the exemption from the regulation is defined on the face of the statute in terms of a particular topic or subject matter of speech.  Similarly, a law that explicitly makes it a crime to burn a flag "in order to show contempt" for it, but that does not prohibit burning as a means of respectfully disposing of a damaged flag, would be viewpoint-based. These laws would be subject to very high scrutiny.

Formal Neutrality and Disparate or Discriminatory Effect

The plaintiffs in the Massachusetts case would have to concede that the law they are challenging does not, as a formal matter, single out or even mention any identifiable speaker or particular subject or viewpoint of speech. The plaintiffs argue, however, that this law should be understood as a content- or viewpoint-discriminatory regulation because by restricting speech in a particular place, in front of reproductive health clinics, the state is burdening only one side of a debate. They contend that although the law may be neutral on its face, it is discriminatory in its effect.  And this discriminatory or disparate impact should lead courts to be skeptical of the law and strike it down for that reason.

In making their argument, the plaintiffs rely on the commonsense fact that speech in front of reproductive health clinics is overwhelmingly, if not exclusively, speech that is opposed to abortion.  As their brief argues:  "Massachusetts has . . . taken care to frame an Act that as a practical matter affects speech on only one issue-and, indeed, on only one side of that issue.  The Act's lack of generality or neutrality is demonstrated both by the specific locations at which it applies and by the specific speakers whom it affects." (Some of the amicus briefs in favor of the challengers also argue that the law should be viewed skeptically because the legislature's actual motive was problematic, but we defer discussion of so-called motive analysis under the First Amendment to another day, focusing here on whether the disparate effect of a law justifies treating it as a disfavored content- or viewpoint-based law.)

We do not deny that a law that singles out particular places for speech restrictions may often have a disparate effect on speech and debate.  People on one side of a debate often use particular places to express their message much more frequently and aggressively than do people on the other side(s) of the same debate.  But allowing courts to look behind the actual content of the statute and determine what standard of review to apply based on disproportionate effect could radically undermine settled doctrine, require the implicit overruling of many judicial decisions, and lead to the invalidation of laws that are already on the books, or that are likely to be enacted without controversy, because they are considered to be content-neutral regulations.

How Disparate Effect Analysis Would Disrupt the Case Law and Statutory Landscapes

The reality is that many of what today are generally considered to be content-neutral speech regulations were adopted in response to a problems created by identifiable classes of speakers with distinct messages or viewpoints. Under current law, we respond to that reality by requiring a statute to apply to all would-be speakers, not just those whose speech activity raised the legislature's consciousness about the need for regulation. Thus, a limitation on residential picketing, or a buffer zone in front of medical clinics, may be created in response to anti-abortion protests, but the laws responding to this problem must, as a formal matter, apply to labor picketing and other protests as well.   If the Court were to go beyond this current insistence on formal content- and viewpoint-neutrality, and begin subjecting all laws that have predictable disparate effects to the strict scrutiny that applies to content- and viewpoint-based laws, then  significant past Court cases  might require reconsideration.

For example, in the seminal case of United States v. O'Brien, the Court upheld a law that made it a crime to destroy government-issued draft cards, even if the cards were burned for expressive purposes as a form of political protest.  Could anyone doubt that the overwhelming majority of people who destroyed draft cards (and who were thus subject to the law) did so in order to express a particular anti-draft, anti-war, or anti-government point of view?  Or take Frisby v. Shultz, a case in which the Court upheld a ban on residential picketing, as applied to protesters who wanted to picket outside an abortion doctor's home.  Certainly, this ban had meaningful effect only on people expressing critical messages in front of a resident's home; people don't tend to picket in front of your house if they like what you're doing. Honesty compels the acknowledgement that the ban on residential picketing was prompted by, and in the real world most directly affected, anti-abortion activists.

Also, a disparate effect analysis might very well require the invalidation of other laws that current doctrine would tend to permit. To give but two (out of many possible) examples, facially neutral buffer zones around foreign embassies might be unconstitutional because pro-embassy supporters obviously tend to be less affected by (and less likely to be prosecuted under) such regulations than anti-embassy protestors.  And virtually all laws that try to regulate activity near funeral proceedings would be open to question. Over forty states have recently adopted such regulations. It is common knowledge that the vast majority of people today who want to assemble and demonstrate near funerals are members of an identifiable religious group with a distinctive, somewhat bizarre, and extremely unpopular message and point of view.

The Problems of Subjectivity and Disharmony With Other Constitutional Areas

In addition to requiring the overruling of some past cases and the invalidation of laws that are currently deemed constitutional, a change in doctrine emphasizing disparate impacts would add considerable subjectivity and indeterminacy to free speech cases. There will always be questions about both the extent of a predictable or expected disproportionate impact that is created by a law, and just how much of an impact is required to compel a conclusion that the law is content- or viewpoint-based.   For a court that eschews subjective standards (as this Court does, as evidenced by its unwillingness to recognize free exercise of religion claims against neutral laws of general applicability), it is hard to understand why increasing subjectivity and indeterminacy would be appropriate here. Free speech doctrine is complicated enough without blurring established, albeit complicated, categories.

Further, a Supreme Court decision holding that a locational regulation will, by virtue of disparate effects, be considered content- or viewpoint-based and thus trigger strict scrutiny would be anomalous and hard to reconcile with the way in which the Court considers disparate impact in other areas of constitutional law.  For instance, we can compare free speech doctrine to equal protection doctrine.  Under the Equal Protection Clause, government cannot discriminate against racial minorities (just as, under the First Amendment, it cannot discriminate against particular viewpoints.)  But in the equal protection context, a law that is formally race-neutral on its face, but that generates predictable disparate impacts along racial lines (such as a requirement of a high school diploma to be eligible for a government job) is not subject to strict scrutiny, notwithstanding that, in the real world, it tends to disadvantage racial minorities more than white persons. The Court, in the famous Washington v. Davis case in 1976, rejected strict scrutiny based on disparate racial impact, to avoid a slippery slope that would undermine the validity of far too much legislation. Think of all the laws-like flat sales taxes and bridge tolls-that have predictable disproportionate effects on poor persons, and thus on racial minorities (because of the unhappy correlation that persists between the two). All such laws would be subject to strict scrutiny under a disparate impact approach.

And in one important sense, the case for strict scrutiny for racially disparate laws is actually stronger than it is for laws that generate disparate speech effects. In the equal protection setting, if a racially disparate law is not subject to strict scrutiny, it is subject to a very deferential rationality review, which in many cases operates like a rubber stamp upholding the law. In the free speech arena, however, even laws that are not considered content- or viewpoint-based are still subject to a meaningful intermediate level of judicial scrutiny that often has real bite to it that can result in the invalidation of the law.

Conundrums Within Speech Doctrine That a Disparate Effects Approach Would Create

Moreover, a focus on disparate speech effects would create a range of doctrinal conundrums under the First Amendment itself.  Content-neutral regulations of speech serve important social functions. A particular location may be a very useful place to express a message, but it also may be a place where speech imposes serious burdens on third parties (including particularly vulnerable audiences such as patients at medical clinics or mourners at funerals), such that the speech needs to be regulated.  A multi-factor balancing test (the intermediate standard that currently governs content-neutral laws) may be the best way to take all of the relevant values and interests at stake in these cases into account. Yet the Court's heightening of review based on disproportionate impact would tend, in effect, to read the state's interest in restricting speech out of the picture because almost nothing passes strict scrutiny.

Another problem with increasing the rigor of the Court's review of locational or other regulations because of their foreseeable disparate effects on speech is that this approach would send conflicting and confusing messages to lawmakers. On the one hand, under the intermediate scrutiny that is currently applied, content-neutral speech regulations are not supposed to burden substantially more speech than is necessary to further the state's interests. This suggests that content-neutral laws should be drawn narrowly to cover as limited a time, place, or manner of speech as possible to serve the state's goals. But if a disproportionate effect approach makes narrow laws vulnerable to receiving heightened review precisely because their narrowness generates disparate effects, then legislatures are going to broaden laws as a matter of course:  The broader the scope of the law, the harder it is to find that the law disproportionately burdens any particular subject or viewpoint of speech. Thus, with courts emphasizing disproportionate effects, the state is forced to walk a constitutional tightrope and may violate the First Amendment if it deviates even a bit in either direction; if the state adopts a narrow law, the likelihood increases that the law will receive rigorous review because the law disproportionately burdens one subject or viewpoint of speech more than others, but if government broadens the law, the law is more likely to be struck down under the intermediate scrutiny test that will apply, because the law will inevitably restrict more speech than is necessary to further the state's interests. This means that a focus on disproportionate speech effects will do more than make judicial decisions in this area more subjective and indeterminate; it will also undermine legislative discretion and flexibility in drafting and adopting laws.

We are not suggesting that there are no possible answers to any of these seeming dilemmas, or that disparate effect should never factor into any well-conceived First Amendment analytic framework.  Rather, what we are saying is that before the Court begins to travel down this road, it needs to think carefully not just about clinic-access cases, but also about a much larger swath of free speech and larger constitutional doctrine.

December 17, 2013

Top 10 Immigration News Stories of 2013

Cross-posted from ImmigrationProf Blog.

Here are my top 10 immigration news stories for 2013:

1. Congress (Again) Fails to Pass Immigration Reform in 2013

The biggest American immigration news in 2013 by far was Congress's failure -- once again -- to enact comprehensive immigration reform.

The prospects for successful passage of immigration reform initially were promising. In June, the U.S. Senate passed the immigration reform bill by a 68-32 vote.  The high hopes for the passage of immigration reform were dashed when the House under the leadership of Speaker John Boehner (R-Ohio) never took up the bill.   This failure came after many months of political agitation for Congress to act on a reform proposal.

Protests followed, including a well-publicized fast by well-known political figures on the National Mall, who were visited by the President, First Lady, and Vice President.  Moreover, an undocumented "heckler" grabbed national attention by asking President Obama at a press conference if he would place a moratorium on deportations.  

2. Boston Marathon Bombing Suspects Are Legal Immigrants

April's horrific bombing at the venerable Boston marathon on Patriots' Day grabbed national attention.  It turned out that the alleged perpetrators were lawful immigrants from Chechnya.

The Rolling Stone magazine's decision to put Dzhokhar Tsarnaev, the accused Boston Marathon bomber, on the cover of an issue ignited a firestorm of controversy.

3. Immigration Lawyer and Law Professor Margaret Stock Wins MacArthur "Genius" Award

In September, immigration attorney and Professor Margaret Stock was honored with a MacArthur "Genius" Award.

4. DHS Secretary Becomes President of University of California System

In September, U.S. Department of Homeland Security Janet Napolitano, also former Governor of Arizona, made a major career move and became the President of the entire University of California

5. DHS Recognizes Same Sex Marriages for Immigration Purposes

After years of resistance, the Department of Homeland Security moved amazingly fast in recognizing same sex marriages for immigration purposes after the Supreme Court's decision in United States v. Windsor (2013) striking down Section 3 of the Defense of Marriage Act. 

A week after the decision, Secretary of Homeland Security Janet Napolitano issued a statement "that effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse."  (emphasis added).

This quick Executive Branch action demonstrates that elections in fact do matter. It is hard to imagine that a President Romney would have done what the Obama administration did with respect to gay marriage in the mere stroke of a pen.

6. Federal Court Rules Arizona Sheriff Joe Arpaio Violated U.S. Constitution: Court Says Arpaio and His Deputies Have Engaged in Racial Profiling Against Latinos

After a trial in summer 2012, the District Court in May 2013, issued a lengthy ruling, which found that Sheriff Joe Arpaio of the Maricopa County Sheriff's Office (MSCO) engaged in a pattern and practice of racial profiling in its immigration enforcement activities in violation of the U.S. Constitution and entered a permanent injunction barring future profiling of Latinos by the MSCO.  The court later issued a supplemental order calling for a monitor, bias training, policy changes for the MSCO. 

The racial profiling in state and local immigration enforcement was ducked by the Supreme Court in Arizona v. United States (2012), in which the Court refused to strike down Arizona S.B. 1070's "show me papers" provision requiring police to check the immigration status of any person about whom they reasonably suspect is in the country in violation of the U.S. immigration laws.

7. Immigration in the Supreme Court in the 2012 Term: Individualized Decision-Making, No Immigration Exceptionalism

In the 2012 Term, the Supreme Court decided two immigration cases, which fall into the mainstream of immigration jurisprudence.   The most significant decision was Moncrieffe v. Holder, in which the Court refused to subject to mandatory removal a long-term lawful permanent resident who had been convicted of a drug crime for possession of the equivalent of a few marijuana cigarettes (currently legal in a number of states).

8. Obama Administration Sets Many Immigration Enforcement Records.

The Obama administration continued to show its deep and enduring commitment to immigration enforcement  The administration has deported more immigrants than any administration in U.S. history.  Among other immigration enforcement milestones in 2013,

--    U.S. immigration officials planned to ratchet up removals of immigrants convicted of minor crimes as part of an urgent push to make sure the government would not fall short of its criminal deportation targets.

--    A new reports shows record immigration enforcement spending

--    At nearly 100,000, immigration prosecutions reach all-time high in FY 2013.

--    The congressional "detention bed mandate" has contributed to the record number of immigrants held in detention. 

--     Deaths on the U.S./Mexico border directly attributable to heightened enforcement measures continue.

9. States Extending Rights to Undocumented immigrants, An Undocumented Attorney Next?

Just a couple of years ago, states, like Arizona, Alabama, Georgia, and South Carolina were passing record numbers of immigration enforcement laws, many of which the courts struck down in whole or in part.  Times have changed.  Most recently, the District of Columbia followed 11 other states allowing undocumented immigrants to obtain a driver's license.   California has blazed a trail with a number of  state immigrant integration -- as opposed to immigration enforcement -- laws, including laws protecting immigrant workers and making undocumented immigrants eligible for a driver's license. 

In addition, the California Supreme Court is considering whether Sergio Garcia, an undocumented immigrant, should be licensed to practice law.  There is a long history of limiting immigrant eligibility for bar admission.  In the fall, the Court held oral arguments on Garcia's admission. In response to some of the Justices' questioning, the California legislature in near-record time expressly authorized undocumented immigrants to be eligible for admission to the bar.

10. Author of Immigration Report Quits the Heritage Foundation

The co-author of a controversial report, which estimated the cost to taxpayers of legalizing 11 million undocumented immigrants, issued by the Heritage Foundation, left the conservative think tank. Jason Richwine, a senior policy analyst at Heritage, quickly resigned as the controversy grew over work he had done as a graduate student. "His Harvard University dissertation, argued that persistent differences between immigrants' IQs and those of white Americans should be a factor in determining who should be allowed to permanently come to the United States." 

December 16, 2013

New laws should keep up with new technology

Cross-posted from The Sacramento Bee.

Technology matters. It affects every aspect of our lives, sometimes becoming pervasive before we are even aware of it and have a chance to consent - or not. Those in charge of governing technology must adapt when innovation evolves faster than lawmaking and ensure that the public has a role.

Two seemingly unrelated headlines illustrate how new technology - widely and stealthily - has permeated our society: Edward Snowden's revelations of massive electronic surveillance and Washington state's failed ballot initiative to mandate labeling of genetically modified foods.

The NSA surveillance activities revealed by Snowden shocked the American public and the world. We live in a world of drones and hackers, a world where extensive surveillance is widely acknowledged as possible. But the reach of NSA surveillance, the agency's lack of restraint and the collusion of industry in furthering its activities still have stunned many Americans.

Voters in Washington state in November rejected an initiative that would have mandated labeling of foods containing genetically modified organisms or GMOs, just as California voters did a year earlier. These measures failed despite consistent survey results reporting that Americans overwhelmingly favor such labeling.

Some worry that these foods may not be safe; others find the idea of consuming such foods downright frightening. If labeling were required, shoppers would learn that most processed foods contain GMOs. They might be shocked to discover that 90 percent of the corn, soybeans and canola planted in this country is genetically modified.

The public might then ask, "Why didn't we know about this?" It's a question that can apply to many of the emerging technologies that are transforming our lives and the world around us.

Nanotechnology is generating new materials, new medicines and consumer products with new functionalities. Artificial intelligence is yielding an array of advances ranging from driverless cars to robotic surgeons. Synthetic biology is promising to enable the design of new species or the resurrection of extinct ones. And geoengineering, a set of technologically driven and unconventional proposals for countering the effects of climate change, is receiving growing attention in the wake of our collective failure to reduce greenhouse gas emissions.

Researchers have good reasons for pursuing such scientific knowledge. But societies often promote the widespread adoption of a promising new technology without seriously considering its broader consequences for society, individuals or the environment.

The uncertainty regarding the course of technological development and the consequences of technology adoption creates a "dilemma of technology control": When a technology is in its earliest phases, there is scant information about its consequences; however, once such information does become available, the technology has become too well-established to be adequately controlled.

Often, law struggles to keep pace with emerging technologies - a troubling reality when the harms that may result from using a technology are serious and irreversible.

Is the dilemma unresolvable? Not if society and governance institutions devote attention and resources to the problem.

In the case of GMOs, for example, carrying out studies of long-term health effects from GMO consumption would reduce public unease. Transparency in using the technology and genuine consideration of public concerns would also help.

Ultimately, laws must treat technology, health and the environment as fundamentally related. We must reorient lawmaking in a way that acknowledges the transformative power of technology, recognizes the consequences of its use, and incorporates public input and awareness throughout the technology development process. While we may not be able to quantify the risks or identify all the consequences, we often have a sense of the potential hazards and can try to learn whether those hazards are real.

Emerging technologies pose questions regarding what kind of world we want to live in and what kind of people we want to be. A great democracy wrestles with such issues openly and continuously.

December 16, 2013

Prof. Karima Bennoune to Deliver Guest Lecture in Middle East/South Asia Studies

Please note new date below.

Professor Karima Bennoune will deliver a guest lecture on February 10 in the Department of Middle East/South Asia Studies at UC Davis. The public lecture is titled, "Sidi Bouzid Blues and the Green Wave: Journeys through the Arab Spring and Fall."