[Cross-posted from The Atlantic]

By Irene Oritseweyinmi Joe

Public defense might be one of the rare professions in which doing one’s job too well can lead to being fired. The reasons for this are structural—public defenders are tasked with an obligation they cannot fulfill without upsetting those tasked with helping them fulfill it—and the system can be fixed structurally: by creating a state-level office whose job it is to defend public defenders.

Consider the case of two public defenders from Montgomery County, Pennsylvania, Dean Beer and Keisha Hudson, who say they were fired last year after filing an amicus brief describing as unacceptable and unconstitutional court decisions regarding bail that harmed their clients. (The county board responsible for their firing has not publicly commented on the personnel matter and did not respond to a request for comment on that matter for this story. According to The Philadelphia Inquirer, a letter from the county executive to Beer also cites the brief as cause, among other concerns—in particular, that Beer and Hudson had misused resources the previous summer when they assigned interns to review police officers’ social-media accounts for racist language, an accusation Hudson described as a pretext.)

At the time, Beer and Hudson were the highest-ranking attorneys in the Montgomery County office, considered one of the most effective public-defender offices in the state. But, like many public defenders around the country, Beer and Hudson were at the mercy of other actors, like the judges or attorneys general who lead the state judicial and executive branches. In many cases, these actors are responsible for providing the very resources necessary for public defenders to do their job. This relationship creates a conflict whereby a public defender can face retaliation for protecting their client’s rights against abuse or misbehavior. For the public-defense system to work more equitably, a public defender’s ability to hold on to their job should not depend on the same people they challenge in court.

In their amicus brief, Beer and Hudson notified the state supreme court that local judges were assigning excessive and unwarranted bail amounts to certain indigent defendants. The attorneys listed some bail decisions that might shock even the most casual observer of the criminal process. One bail was set at $50,000 for a nursing teen mother accused of a first offense, which resulted in her staying in jail without accommodations for pumping and preserving her breast milk. This minor did not have an attorney present at the bail determination; when an attorney was finally provided, more than two weeks later, the court declined a motion to reduce bail, noting that the minor could express her milk by hand. Both human decency and the rules of professional responsibility governing the legal profession support public defenders’ ability to make appellate courts aware of situations like these. Beer and Hudson’s reward for defending their clients, however, was losing their jobs. One judge demanded an apology and a public statement from Beer, and the Montgomery County Board of Commissioners abruptly fired them both.

Working as a public defender can be like walking a tightrope. Attorneys are constitutionally required to provide effective representation to their clients, ethically required to do so as officers of the court, and subject to the ordinary human desire to keep their jobs. Other actors in the criminal process complicate the public defender’s ability to do each of these things. At times, courts set restrictive and unconstitutional bail, show little patience for the time it takes attorneys to investigate and prepare cases, and fail to hold prosecutors accountable. Prosecutors sometimes bring so many cases that public defenders cannot meaningfully represent every client they are assigned, and then use this tactic to move cases quickly through the criminal process. Then, the leaders of the institutions within the executive and judicial branches of government can fire or reassign a public defender when they are displeased with his or her work. It can be a vicious cycle, where a public defender is fighting a battle against the very entity that must provide that public defender with the resources and support it needs to do so. So who defends public defenders when they are faced with serious consequences for challenging the decisions of opposing actors, when those very actors oversee the public-defender institution?

Most states house the public defender under either the judicial or executive branch, and each placement provides its own unique challenges. The executive branch has a clearly articulated objective of enforcing a jurisdiction’s laws. This role is in some ways similar to the public defender’s role of ensuring that law enforcement complies with both constitutional and statutory law, but it also contradicts the mandate of the public defender to protect the individuals charged with violating those laws.

The state judicial branch is tasked with advancing the resolution of the courtroom process neutrally, efficiently, and fairly. This role can sometimes lead courts to deprioritize the public defender’s needs in larger decisions about the courtroom process, as when judges feel they must support the requests of others involved in the criminal process, such as prosecutors and victims. Courts can also punish the public defender who acts in a manner inconsistent with the court’s view of how the process should evolve.

In order to see the dynamics at play, it is crucial to understand how the modern conception of the public defender originated. The institution was developed through a series of Supreme Court cases in the 1930s and ’40s interpreting the Sixth Amendment right to the effective assistance of counsel. The process culminated in the 1963 Supreme Court case Gideon v. Wainwright, which held that indigent defendants accused of felonies in state court must be appointed counsel. But in practice, that right can lose its efficacy at the whim of other actors in the criminal process who have conflicting interests.

One consequence of this system is chronic underfunding with limited paths for redress. For example, Bennett J. Baur, the chief public defender for the New Mexico Law Offices of the Public Defender, an institution managed through the state judicial branch, recognized his professional duty to ensure legal representation for all qualified defendants. Lack of adequate funding, however, created a difficult choice: provide representation that was constitutionally and ethically deficient, or risk the ire of the system’s management (and possibly his job) by not providing any representation to some defendants. When Baur’s funding requests were denied, he chose the latter option, and ordered one of his county offices to stop accepting new clients. A New Mexico district-court judge deemed Baur’s refusal to represent indigent clients a violation of a court order to participate in the criminal process and held him in contempt of court.

The obvious solution would be to make the public defender an independent institution, so it could define its own structure to best suit the needs of its client base without fear of reprisal. But doing so would overlook the need to secure funding in a government system where all actors must compete for limited resources. While the public defender plays an important role in the criminal-justice system and protects the rights of the public at large, its influence and political efficacy are often smaller in comparison to other executive or judicial agents. To secure a seat at the table, the public-defender institution requires an authoritative presence that can effectively pursue its agenda within the state structure.

Instead of asking for pure independence, public defenders should seek a protector, a state actor that possesses a degree of independence but is also able to effectively advocate for the institution. This actor’s primary responsibility would be to ensure that public defenders receive the resources they need to comply with constitutional and ethical duties. The position would also challenge the leadership in its assigned branch, including identifying practices that hinder public defenders’ ability to do their job and holding other actors accountable in the larger system.

Fortunately, the nation already has a model in place for such a position: the inspector general. Established by statute in 1978, the inspector general is a relatively independent government office tasked with neutrally assessing whether members of the executive branch have violated constitutional principles. The public-defender version could notify the court of constitutional and ethical violations related to the delivery of public-defender services. This position would also reaffirm the role of the public defender as a protector of the general public, as it serves as a check on the government’s intrusion into a citizen’s life through the criminal process.

Indeed, this watchdog role was at the heart of the creation of the public-defender institution. As the Court noted in Gideon, “From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals … This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.” To fully realize that early vision, the institution requires structural changes, including the addition of a leader in an inspector-general role. This person would ensure that the attorneys who safeguard clients’ rights are provided for and are safe from reprisal for doing so—in other words, they would protect the protector.

When the state wields its power against a defendant in a criminal proceeding, the defendant uses the Sixth Amendment as a shield. After a conviction, the amendment transforms into a sword, as the defendant can bring a claim of ineffective assistance of counsel to challenge their conviction on appeal. The public-defender institution needs a similar system to protect clients’ rights. Reorganizing to more securely place itself in one of the state branches of government while also adding a defensive entity would allow the institution to exist in a more stable and effective manner.

Dean Beer and Keisha Hudson did exactly what the Constitution and professional rules mandate. This form of advocacy is critical to achieving the kind of reform protesters are currently demanding, calling attention to the racism and classism that have permeated the criminal-justice arena for centuries. The lack of an entity to address the attorneys’ dismissal is a fundamental flaw in a system meant to protect the powerless from the powerful. Fixing this flaw will protect not just public defenders, but their clients, too.

This story is part of the project “The Battle for the Constitution,” in partnership with the National Constitution Center.

[Cross-posted from ImmigProfBlog]

By Kevin R. Johnson

Earlier this week, the Milton L. Schwartz/David F. Levi Inn of Court held its first meeting of the academic year at UC Davis School of Law.  Because the meeting was on the anniversary of Sept. 11, 2001, Judge Emily Vasquez asked me to offer some remarks on the impact of September 11 on the law.  Here are my remarks:

September 11, 2001. The words alone bring forth many images and emotions. The morning saw one of those rare events where people look back and think about where they were when they heard the news. It is hard to ever forget the television footage of the jet crashing into the World Trade Center. Closer to home, I will never forget the Sikh owners of the local 7/11 store who plastered American flags on the store windows, basically trying to convince people that they were not Muslim. This simple act spoke volumes about the tension in the air.

For a long while, some said that “9/11 changed everything.” That, I think, is an exaggeration. However, the events did have significant reverberations. Airplane travel became very different — forever. Armed National Guard members immediately were at California airports. Waiting in long lines for screening at airports became common. "Interacting" with TSA officers became a normal part of the airport experience.

The days that followed saw a blur of government responses. I think it fair to say that some people today have regrets about various missteps in the name of security. Some examples might include

1.    The treatment of Arabs and Muslims – many now think that “special registration” of Arab and Muslim men was unnecessary. Similarly, the mass dragnet and detention of young Arab and Muslim men is not generally looked on as one of the nation’s best moments.

2.    The use of Guantánamo and torture have been roundly condemned.

3.    The USA PATRIOT Act and its intrusion on privacy and individual rights has drawn criticism.

On the positive side of the ledger, the nation saw the inspirational rebuilding of the World Trade Center area, with a memorial and museum. The response reflects the resilience of the people of the United States. Who doesn’t like a good comeback story? In the film world, aren’t we on something like Rocky 13?

All that said, September 11 and security concerns remain with us and influence law and policy. But the courts – and this is the upbeat portion of my remarks – have stepped up. Consider the travel bans put into place by President Trump, which applied to noncitizens from a group of countries with predominantly Muslim populations. There actually were three bans, with the first one put into place in January 2018. The bans were rooted in the same fears that influenced the responses to September 11. Some claimed that they were anti-Muslim.

In the first version, it was not clear whether the ban applied to lawful permanent residents or only to temporary visitors to the United States. Nothing less than chaos resulted at airports from coast to coast. I am proud that UC Davis School of Law had students, alumni, and faculty head to airports to help noncitizens seeking admission into the United States. We even had a law professor who happened to be in New York City and went out to John F. Kennedy International Airport to help people in need. I can’t help but think that some of the willingness of people to help persons affected by the travel ban comes from remembering the injustice of some of the U.S. government’s responses to September 11.

The courts played a critically important role in narrowing the three bans, invalidating the first two. We might debate whether the final one was lawful. However, few would say that the final ban’s lawfulness is not a much closer question than the first one. Through judicial review, the courts in effect narrowed the ban.

In Trump v. Hawaii, the Supreme Court upheld the travel ban after engaging in judicial review of its lawfulness. Even though the Court only engaged in rational basis review, that itself is more than once was the case.  In the not-too-distant past, the courts have not even engaged in any review of immigration and national security decisions of the president and Congress. In addition, the Court finally overruled Korematsu v. United States, the case upholding the internment of persons of Japanese ancestry, citizens and noncitizens alike – a national blemish if there ever was one.

This leads me to a more general lesson as we work through challenging times. Time and again in recent years, the nation has seen courts enforcing the rule of law in these and other areas:

• The rights of “enemy combatants”
• Sanctuary litigation
• Immigrant detention
• Enforcement of the Flores settlement and protecting the rights of migrant children
• Asylum policies
• The litigation over the decision to rescind the Deferred Action for Childhood Arrivals (DACA) policy. This issue is currently before the Supreme Court.

The courts enforcing the rule of law include a conservative Supreme Court. Consider Sessions v. Dimaya (2018) in which a 5-4 Court held that a removal provision of the immigration laws was unconstitutional, an extraordinarily rare occurrence. In another case that surprised many Supreme Court watchers, a 5-4 Court in 2019 found that the Trump administration had not adequately explained its addition of a U.S. citizenship question on Census 2020. In my view, Chief Justice Roberts, who wrote for the majority, joined the more liberal justices to save the Court’s legitimacy as an institution separate from the political process.

Ultimately, my firm sense is that we have learned much from September 11. And I remain inspired by the role of the courts in enforcing the rule of law on national security matters. We all should be proud of that.

By Vikram David Amar and Alan E. Brownstein

[Cross-posted from Verdict Justia]

The blockbuster movie The Post tells a very important real-life story about the efforts of the journalists and leaders of the Washington Post (including Katherine Graham, the first female head of a major American newspaper) and the New York Times to publish parts of a collection of classified documents (the “Pentagon Papers”) detailing non-public information about America’s controversial involvement in the Vietnam War. Although some historians might criticize the movie’s exaggeration of the role of the Post vis-à-vis the Times in getting the documents published, the movie has many strengths: a great story, a taut script, and very fine acting. But one weakness is its failure to explain the legal backdrop against which the battles over publication of the Pentagon Papers were waged. We think this is a shame, since movies and TV shows about important historical episodes like this one represent ideal opportunities to painlessly educate a wide swath of Americans on important—albeit somewhat technical—aspects of the First Amendment and other provisions in the Constitution. For this reason, in the space below we introduce and analyze the two main legal doctrines that lie behind much of the action in this worthwhile cinematic drama.

Spoiler alert: We begin with a brief summary of the movie’s storyline. But the movie and the events it depicts are drawn from recent American history with which we hope many Verdict readers would already be familiar; in any case, the real value of the film lies in its character development and detailed storytelling, not in any surprise plot twists or endings.

In The Post, Katharine Graham (played by Meryl Streep), the publisher of the Washington Post, and Ben Bradlee (played by Tom Hanks), the editor-in-chief of the newspaper, confront an extraordinary situation. During the Vietnam War, while Richard Nixon was president, Daniel Ellsberg provided photocopies of thousands of classified documents to the New York Times. These documents, eventually known as the Pentagon Papers, chronicled the United States’ involvement with Vietnam for decades. The documents revealed numerous misrepresentations by the government to the American people about the causes of the war, the success of military operations, and the likelihood that the war could be won. The Times published the content of some of these documents, but stopped doing so when the United States government, asserting alleged violations of the Espionage Act and inherent executive authority to protect the national security of the country, went to federal court and obtained an injunction prohibiting further publication.

Shortly thereafter, Washington Post reporters obtained copies of the Pentagon Papers. At this point, Graham and Bradlee had to decide themselves whether to continue publication of the documents. The arguments against doing so were formidable. The Washington Post corporation was about to issue a public stock offering, and potential violations of federal law would jeopardize its access to capital it desperately needed. There was also the danger that publication would risk harm to national security and undermine American military operations in Asia. Finally, the Post’s lawyers explained that the Post may in fact be covered by the terms of the injunction that had been issued against the Times, and that if the Post was covered by the order, Graham and Bradlee themselves would risk being held in contempt of court and sent to jail if they authorized the Post to print enjoined material.

The argument on the other side consisted, of course, of the responsibility of the press to inform the public of government abuses of power so that political leaders can be held accountable for their conduct. But would the First Amendment protect American newspapers in a situation like this one where national security concerns were at stake? Graham agonized over the issue, but ultimately decided to publish the Pentagon Papers. From that point on, the movie raced to an expedited hearing before the United States Supreme Court on these matters, followed shortly by the dramatic announcement in 1971 that the Court decided, 6–3, to rule in favor of the Times and the Post.

The Post is a fine movie. But viewers are left unclear about exactly what legal issues the Court resolved in this dispute. Did the justices hold that newspapers can never be prohibited from, or punished for, publishing classified information? If so, why not? Further, what happens if a newspaper violates an injunction prohibiting the publication of a news story and that injunction is ultimately held to be unconstitutional? Would such a finding of unconstitutionality insulate a newspaper’s publisher and editor from being found in contempt of court and punished for their actions? With this background in mind, we are now in position to explain the key legal doctrines/principles that underlie much of the movie’s action.

The Rule Against Judicial Prior Restraint

The key issues—whether the Times and Post had the right to publish the classified materials and whether the Supreme Court should affirm an injunction blocking publication of these materials—turn in large part on something known as the rule against prior restraint. This rule, going back hundreds of years, tells courts to be very wary of government attempts to prevent the utterance or publication of speech by prior censorship of speakers. That is ultimately the basis on which the Supreme Court, by a 6-3 vote, rejected the government’s request to block further publication of the Pentagon Papers.

Before the Pentagon Papers case, the most famous prior restraint ruling by the Court was probably Near v. Minnesota, a 1931 case in which the Court held it was unconstitutional for a state law to authorize and a state court to enjoin the publication of “a malicious, scandalous and defamatory newspaper, magazine or other publication” determined to be a nuisance. As the majority opinion in Near made clear, a primary purpose of freedom of the press was to protect publishers against government licensors authorized to review and censor expressive materials before publication. Such prior restraints were particularly pernicious if they were employed by government to prevent the publication of commentary critical of official conduct.

To the majority, the judicial injunction issued against a scandalous and defamatory newspaper in the Near case constituted a prior restraint against speech. While such injunctions were not absolutely prohibited by the First Amendment, the Court held that they should be reserved for only the most exceptional of cases. The defamatory content of future articles could very well expose the publisher to punishment for libel after the fact, but that likelihood, standing alone, could not constitutionally justify judicial censorship preventing continued publication of a newspaper containing such content.

Near was a 5–4 decision. The four dissenting justices pointed out that the defendant’s periodical had been determined to be scandalous and defamatory by the court that issued the injunction and was only restricted to the extent the court concluded that future publications were similarly unlawful. The dissenters believed that court orders of this kind (as distinguished from executive branch actions of censorship), should not be considered unconstitutional prior restraints of speech. Unlike Near, in New York Times Co. v. United States—the 6–3 Supreme Court decision hailed in The Post—the Court focused on injunctions against particular articles, the content of which was known to the courts when the injunctions were issued. Here the Court echoed and solidified Near by saying that a judicial injunction against specific speech “carries a heavy burden of showing justification for the enforcement of such a restraint,” a burden not met in the case before it.

The rule against judicial prior restraints is to some extent curious. A near-absolute (no pun intended) presumption against judicial orders restricting particular words or publications that are about to be expressed certainly makes sense when the speech at issue is fully protected by the First Amendment, and any after-the-fact attempts to punish its utterance/publication by civil damages or criminal fines or imprisonment would also be prohibited. The idea that speech is fully protected but could nonetheless be blocked by a court would make little sense.

But the rule against prior restraints is also employed in settings where the courts assume, or have determined by careful examination, that the proposed speech in question is not protected by the First Amendment, and could lawfully be punished after its utterance. Why do we nonetheless insist that such speech cannot be blocked by judicial order before the fact? Wouldn’t it make sense for us to block speech that is unprotected and will likely cause harm to individuals after it is uttered or published? After all, damages rarely put Humpty Dumpty back together again, especially when reputations and other dignitary interests are at stake, as they often are with regard to unprotected speech.

What explains this seeming oddity? One possibility is that after-the-fact damage actions and criminal sanctions must go through a process and involve juries in a way that makes us feel more comfortable than we feel when judges enforce their own judicial orders without jury involvement, which had been the historical practice of enforcing court orders. (More on the power of judges to enforce their own edicts below.) Another possibility is that speech often seems scarier before it is uttered than after, and if we allow judges to block speech based on reasonable fears of the harm it might cause, a great deal more speech will be blocked than would be lost if judges allow the speech to happen and let others decide down the road whether the feared harm materialized (or was sufficiently likely to materialize) such that civil or criminal sanctions are appropriate. The Pentagon Papers may itself be an example of this phenomenon; notwithstanding the grave predictions of harm the government made when it tried to get an injunction against publication, after the materials were more fully published, the government did not make serious efforts to punish the newspapers for any harm they caused.

The So-Called Collateral Bar Rule

The stakes for whether an injunction got issued and upheld in The Post were very high indeed. One reason is what we just mentioned: the idea that before-the-fact restrictions on speech are more likely to be adopted than after-the-fact punishments of speech are to occur, because the speech that is uttered often turns out to be relatively harmless after it is expressed. So some speech that might seem so dangerous that judges would want to block it would turn out after-the-fact not to support any punitive civil or criminal sanctions. But to fully understand why the issuance of an injunction is particularly problematic for a would-be speaker, one must understand another legal doctrine—which is not limited to free speech cases but finds special application there—known as the collateral bar doctrine.

Under this doctrine, if a person violates a judicial injunction, whether that injunction looks unwise after the fact—and even if a higher court determines that the injunction was improper and illegal from the outset—the person violating it can be punished, even criminally, for contempt of court, so long as the court that issued the injunction had jurisdiction to hear the case. Perhaps the most famous dispute applying the collateral bar rule is Walker v. Birmingham, a 1967 ruling involving efforts by civil rights protestors in Birmingham, Alabama, to hold parades, rallies, and other expressive events. Upon learning of the planned events, Birmingham officials got a state court to issue an injunction against the protests, on the ground that the protestors had not obtained the required permits. Believing that the permitting scheme—and the judicial injunction that essentially incorporated it—was vague, overbroad and in other respects in violation of the First Amendment, the protestors went ahead with their events. The demonstrators were held in contempt and punished by the state court that had issued the injunction. The Alabama Supreme Court affirmed the punishment, and the US Supreme Court, in a 5–4 decision, also affirmed.

According to the Court, even though “the breadth and vagueness of the injunction itself” raised substantial concerns about its constitutional validity, the proper course of action for the protestors was to comply with the questionable injunction and appeal it (perhaps on an expedited basis) up the appellate judicial ladder. According to the majority, “respect for the judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.”

Notice that the collateral bar rule, as it was described in Walker, treats jurisdictional mistakes by courts as being more serious than federal constitutional mistakes: if a court lacks jurisdiction, you may be able to flout its orders, but if a court has jurisdiction and violates your federal constitutional rights, you must obey the order. It is hard to know why jurisdictional limits are more important than constitutional ones.

Notice also that Walker treats unconstitutional actions by judges more respectfully than unconstitutional actions by the legislative or executive branches. As the dissenters in Walker powerfully pointed out, if Congress passes a law, or the president issues an executive order, and you think the statute/order is unconstitutional, you can (assuming you can show a ripe case) go to court to get the statute/order struck down. But you can also, if you want to, simply flout the statute/order, and then assert its unconstitutionality when you are prosecuted for violating it. To be sure, you are running a risk; if you are wrong (or a court disagrees with you) about the statute/order’s unconstitutionality, you can be punished. But if you are right in your understanding of the Constitution (and the courts agree), you will be excused for violating the unconstitutional edict of Congress or the president.

But under the collateral bar rule, if you violate an injunction that you (rightly) think violates the First Amendment (or some other aspect of the Constitution), even if the Supreme Court agrees with you that the trial court violated the Constitution in issuing the injunction, you can still be punished for violating the court order that turns out to be illegal. Thus, the only safe way to challenge an arguably unconstitutional injunction is to appeal it—at best seeking expedited review.

Why do we force people to appeal judicial injunctions but not file suit and appeal disputes over statutes and executive orders? Why is the “civilizing hand of the law” more present when courts issue their rulings based on their views of the law than when other actors express their vision of what the Constitution permits?

Perhaps courts think that other branches no longer consider constitutional permissibility when they act; they refer all such questions to the courts. Maybe that’s true, but if so it is true in part because of doctrines like the collateral bar rule. Relatedly, perhaps courts believe that they are less likely to misinterpret the Constitution less than are Congress and the president; this is an empirical question that would benefit from data on how often trial courts are overturned on constitutional grounds, and how often statutes and executive orders are ultimately invalidated by courts. Or perhaps judges simply want people to respect their handiwork in particular; there are many doctrines (absolute judicial immunity, the failure of the Supreme Court to be legally bound by recusal statutes, etc.) that might be understood to reflect an attitude of judicial privilege or perhaps even judicial arrogance.

Regardless of its soundness, the collateral bar rule makes the issuance vel non of the speech-restrictive injunction in cases like the Pentagon Papers dispute hugely important. And this backdrop legal rule, along with the rule against prior restraints, was animating a good bit of the motives, moves, and countermoves that were documented—albeit without much legal explanation—in the worthwhile drama, The Post, recounting a crucially important episode in American history.

Cross-posted from Immigration Prof Blog.

The Chief Justice of California Tani Cantil-Sakauye has expressed concerns with federal immigration tactics at California courthouses in the following letter:

Dear Attorney General Sessions and Secretary Kelly:

As Chief Justice of California responsible for the safe and fair delivery of justice in our state, I am deeply concerned about reports from some of our trial courts that immigration agents appear to be stalking undocumented immigrants in our courthouses to make arrests. 

Our courthouses serve as a vital forum for ensuring access to justice and protecting public safety. Courthouses should not be used as bait in the necessary enforcement of our country's immigration laws.

Our courts are the main point of contact for millions of the most vulnerable Californians in times of anxiety, stress, and crises in their lives. Crime victims, victims of sexual abuse and domestic violence, witnesses to crimes who are aiding law enforcement, limited-English speakers, unrepresented litigants, and children and families all come to our courts seeking justice and due process of law. As finders of fact, trial courts strive to mitigate fear to ensure fairness and protect legal rights. Our work is critical for ensuring public safety and the efficient administration of justice.

Most Americans have more daily contact with their state and local governments than with the federal government, and I am concerned about the impact on public trust and confidence in our state court system if the public feels that our state institutions are being used to facilitate other goals and objectives, no matter how expedient they may be.

Each layer of government - federal, state, and local - provides a portion of the fabric of our society that preserves law and order and protects the rights and freedoms of the people. The separation of powers and checks and balances at the various levels and branches of government ensure the harmonious existence of the rule of law.

The federal and state governments share power in countless ways, and our roles and responsibilities are balanced for the public good. As officers of the court, we judges uphold the constitutions of both the United States and California, and the executive branch does the same by ensuring that our laws are fairly and safely enforced. But enforcement policies that include stalking courthouses and arresting undocumented immigrants, the vast majority of whom pose no risk to public safety, are neither safe nor fair. They not only compromise our core value of fairness but they undermine the judiciary's ability to provide equal access to justice. I respectfully request that you refrain from this sort of enforcement in California's courthouses.

-Chief Justice Tani G. Cantil-Sakauye

The 2015 issue of California Legal History could easily be titled the King Hall issue. A publication of the California Supreme Court Historical Society, it is an annual journal that publishes scholarly articles and the oral histories of prominent figures of the bench and bar of California.

Here are some of the articles in the new issue:

A tribute to Hon. Joseph R. Grodin by our own Cruz Reynoso.

My contribution on "Justice Cruz Reynoso: The People's Justice."

An oral history of Cruz Reynoso.

A student symposium on three intersections of federal and California law (which I blogged about previously).

The symposium features an introduction by Professor John Oakley and contributions by Kelsey Hollander '15, Megha Bhatt '15, and Elaine Won '16!

Cross-posted from Justia's Verdict.

In my last column, I began analyzing SB 396, a laudable but legally questionable effort by the California legislature to repeal, by ordinary legislation, provisions of Proposition 187, a 1994 voter-enacted measure that imposed harsh restrictions on unlawful immigrants in the State, restrictions that have since been blocked indefinitely by a federal district court judge. As I explained, the main problem with the repeal effort is Article II, section 10(c) of California Constitution. This provision, designed to maintain the integrity of the initiative device, prevents the legislature from repealing any voter-enacted measure unless the repeal measure is itself "approved by the electors" (i.e., the voters).

The Legal Defense of SB 396 and How That Defense Overreads the Import of a Judicial Block on Enforcement

A few days after my column was posted, the State Assembly Committee on the Judiciary held a hearing on the proposed legislation. This hearing and the report it generated give a glimpse of the opinion offered by the State Legislative Counsel-an opinion legislators appear to be relying on-setting forth the view that SB 396 is lawful and that Proposition 187 can be repealed by simple legislation. Here is the passage of the Committee Report that lays out the Legislative Counsel's legal defense of the bill:

Because [Proposition 187 was] enacted by initiative, the question arises whether the Legislature may act to strike these provisions from the codes. The California Constitution provides that the Legislature may amend or repeal a statutory initiative 'by another statute that becomes effective only when approved by the electors. . . .' (Cal. Const., art II, § 10, subd.(c).) While it may be argued that this bill proposes an improper 'repeal,' the better view would appear to be reflected in an opinion by Legislative Counsel concluding that the Legislature is within its powers to delete statutes that have been abrogated by the courts. As Counsel notes, the evident intent of the subdivision (c) is to 'protect the people's initiative powers by precluding the Legislature from undoing what the people have done, without the electorate's consent.' . . . Accordingly a subsequent statute will 'amend' a statutory initiative within the meaning of subdivision (c) only if it changes the scope or effect of that initiative by adding or taking away from it. . . . Because the provisions that would be deleted by SB 396 have previously been held to be unenforceable, it seems reasonable to conclude that this bill would not make a substantive change in the law as prohibited by subdivision (c), and therefore would not unconstitutionally change the scope or effect of Proposition 187.

In other words, a legislative measure that does not "change the scope or effect" of a previously enacted initiative cannot be said to amend or repeal the initiative, and does not require voter approval. While creative, this argument is not persuasive. Even assuming that the "scope or effect" standard is the right one to apply, SB 396 fails the test. For starters, as I pointed out at length in my earlier column, a law that is blocked by a court but that remains on the code books has significant potential effect down the road, insofar as circumstances could change to remove the judicial block. Courts can revisit their prior rulings, higher courts can change the legal landscape against which lower courts make decisions (as the Supreme Court in fact did in the immigration regulation setting in 2012 in Arizona v. United States), parties can seek to reopen cases, etc. All of these possibilities exist in the context of Proposition 187. Indeed, because the district judge who struck down parts of Proposition 187 did so in part because of congressional laws on the books, there is yet another possible change that could trigger revisiting the judicial block on enforcement-subsequent congressional action. For all these reasons, we cannot say that Proposition 187's operative provisions that remain on the books lack effect; at most, we can say that the present effects are blunted, and that the future effects are hard to gauge but potentially significant.

How the Defense of SB 396 (Selectively) Ignores the Expressive Effects of a Law

But there is an even more fundamental flaw in the Legislative Counsel's position; the Legislative Counsel seems not to recognize that a law whose operative provisions are being blocked continues to have an expressive effect, insofar as a state's laws, as written, send a message to the world about the state's values. Indeed, it is that expressive effect-of having the mean-spirited language of Proposition 187 still on the books-to which SB 396 is itself a response; repealing the text is a good idea primarily because leaving the text intact continues to send a message. But the people who voted for Proposition 187 may have wanted to accomplish the harsh message that Proposition 187 conveys, irrespective of whether the operative provisions of the measure could be enforced.

Even if 187's message is odious, there is nothing unconstitutional about a state having that message codified in its books, which is why the District Court Judge did not order that Proposition 187 be stricken from the code books, only that its provisions not be enforced. (Some kinds of messages, regarding race or religion, may themselves be unconstitutional, but messages about immigration benefits do not violate the federal Constitution in the same way.) Voters of a state have authority to convey even unkind and unwise messages in the initiatives they enact, and the California Constitution does not seem to give the legislature the power to override those messages. Indeed, the legislature cannot have it both ways, saying that the message sent by Proposition 187's continued presence on the books creates problems, but then denying that the message has any "effect."

Perhaps an example from a different constitutional area will help drive the point home. Imagine the California voters were to pass an initiative that says: "Catholic doctrine is religious truth, and that all other religions are false." The measure, by its terms, does not go on to tell anybody to do or refrain from doing anything-it is a purely expressive initiative. Putting aside whether such a measure violates the Establishment Clause of the Constitution and what a court might do about that, no one could plausibly argue that that the legislature could repeal and remove this measure from the code books without popular approval the day after it was enacted on the ground that the initiative, and thus its legislative repeal, is purely expressive and has no scope or effect in the real world.

Changes in Legislative Text, Even Those That Don't Seem to Change the Real World, Must Go Through a Prescribed Process

The codified text of a statute (or state constitution) matters, and legislatures are given authority to amend that text, but only if they go through the required legislative procedures. As I argued in my last column, the requirement of popular approval may be analogized to the requirement of bicameralism; just as one house of the state legislature may not repeal text-whether or not the repeal changes the present-day operative effect of that text-without the other house, neither may the two houses accomplish repeal of initiatives or state constitutional provisions without involving the people.

We can see this even more clearly using yet another hypothetical, this one an attempt by the California Legislature to change the language of the state constitution rather than a statute adopted by the voters. As with initiative statutes, the California lawmakers can, under the terms of the California Constitution, propose changes in constitutional text, but such changes require voter approval to go into effect. Suppose the California Supreme Court (the ultimate interpreter of State law) were to rule that search and seizure protections under the California Constitution do not extend to automobiles. The legislature could not, without getting the required popular consent for all constitutional amendments, tweak the text of the California Constitution to add words making explicit that car searches aren't covered, simply because (under the prevailing judicial decisions at the time) this amendment wouldn't change the real-world "scope or effect" of the provision in question.

The Effort to Repeal Proposition 187 Should Proceed, but Should Include Popular Approval

None of this is to say the legislature should abandon the efforts to repeal Proposition 187. Instead, it is to say simply that the legislature should act to repeal the Proposition, but that the repeal should take effect only when the voters approve it. And having the voters remove the hateful Proposition 187 themselves is the best solution for expressive reasons anyway. If State Senator Kevin De Leon is correct, as I believe he is, that erasing the language of Proposition 187 would be powerfully symbolic, think of how much more powerful it would be if the very electorate that passed Proposition 187 now wants to make clear that this measure no longer represents the views or values of the State.

And I think popular approval would be easily forthcoming. The State and its attitudes about immigration and ethnicity have evolved a great deal in the past two decades. Since the measure could be put to the voters without having to assemble signatures, no signature-gathering money would need to be expended. Indeed, because I can't imagine any organized opposition to a measure proposing repeal, I don't see the need for any expensive campaign to obtain enactment.

Having the voters undo their own misguided handiwork would be poetic, practical and (legally) proper. And, importantly, it would avoid opening up the legislature to the charge that it is riding roughshod over the will of the people and the initiative process.

Cross-posted from Justia's Verdict.

In the space below, I analyze a pending effort by California lawmakers to cleanse the California statute books of (what are to my mind) some mean-spirited provisions concerning the treatment of undocumented immigrants in the State. While the goals of this legislative endeavor are understandable, the attempt reflects fundamental misunderstandings of the scope of the legislature's authority, and the essence of judicial review (i.e., the power of courts to declare enactments unconstitutional.)

How This Episode Has Arisen-Background on Proposition 187

The story really begins almost 20 years ago in November 1994, when California voters adopted Proposition 187, a statewide initiative statute that amended California's Education, Government, Penal, and Welfare and Institutions Codes. The measure sought to make immigrants unlawfully present in California ineligible for various public health, public social, and public education services. The proposition also required state and local agencies to investigate whether arrested persons in the State were in the country unlawfully, and report any suspected immigration violations to the state Attorney General and federal immigration authorities. In some respects, Proposition 187 was the intellectual forerunner of Arizona's SB 1070, the 2010 law regulating unlawful immigrants that received national attention and that was struck down (but only in part) by the U.S. Supreme Court in 2012 in Arizona v. United States.

Shortly after Proposition 187's passage, the provisions described above were challenged in a lawsuit and a few years later blocked by federal district judge Mariana Pfaelzer, who reasoned that the contested provisions conflicted with federal immigration law and policy, and were thus rendered unconstitutional by the Supremacy Clause of the U.S. Constitution (which makes federal law "supreme"). California Governor Pete Wilson appealed the district court ruling to the U.S. Court of Appeals for the Ninth Circuit, but in 1999 Wilson's replacement, Governor Gray Davis, withdrew the appeal and sent the legal dispute to mediation. The result has been that Judge Pfaelzer's order blocking Proposition 187's enforcement has remained in effect ever since.

The Recent Legislative Effort and the Essential Problem With It

Now enters a group of well-intentioned California legislators, who this month are introducing legislation, SB 396, that seeks to remove from the California statute books the provisions of Proposition 187 that were held unconstitutional by Judge Pfaelzer. As California Senator Kevin DeLeon-one of the bill's backers-put it in his "fact sheet": "[A]fter 20 years, it is fitting that California expressly acknowledge the harm caused to Californians through passage of the discriminatory and xenophobic Proposition 187 by removing its stain from the state's statutes." SB 396, styled as a measure that will become law if passed by a simple majority of both houses of the California legislature and signed by the Governor, attempts to repeal those portions of the State's Education, Government, Penal, and Welfare and Institutions Codes into which the now-invalidated portions of Proposition 187 are lodged.

From one angle, this legislative effort seems quite sensible. Why shouldn't California's statute books reflect the current state of things, and be purged of provisions that are not enforceable and that send demeaning messages to members of our community? As to the goals of this legislative effort-in the words of Seinfeld character Elaine Benes referring to another woman's efforts to free herself from the George Costanza character-"more sympathetic . . . I could not be." But the problem with SB 396 is that the California Constitution prohibits the state legislature from repealing any part of a voter-enacted initiative unless the measure explicitly empowers the legislature to do so, or unless the voters themselves approve of the repeal. Initiative measures, even those that take the form of statutes rather than state constitutional amendments, occupy a space in the state constitutional hierarchy above ordinary enactments by the legislature. In other words, a statutory initiative such as Proposition 187, like a state constitutional amendment, lies outside the control of the legislature to undo or modify. And this makes sense, if the initiative device is itself supposed to be a check on-and a response to dysfunction within-the state legislature. Importantly, Proposition 187, by its terms, does not authorize the legislature to undertake repeal by ordinary legislation without voter approval.

What's Wrong With Repealing Dead Letters?

But what about the fact that the parts of Proposition 187 at issue here have been declared unconstitutional by a federal judge? Shouldn't that fact change things? As Senator DeLeon's Chief of Staff has been quoted as saying: "These code sections are unenforceable. . . . Essentially, [SB 396 is] 'code cleaning.'" (The same press account that included this quote also quoted the Chief of Staff as saying that the California Legislative Counsel has opined that SB 396 could be implemented as ordinary legislation. If such an opinion were rendered, I would like to know how the Legislative Counsel thinks the California Constitution permits this.)

While initially appealing, the "code-cleaning-on-account-of-unenforceability" view reflects a fundamental misconception of judicial review and what it means when a court "invalidates" or "strikes down" an enactment. A judicial declaration that a statute is unconstitutional (accompanied by an injunction against the statute's enforcement) is in reality simply a statement that that court-and all courts that are bound by that court-will refuse to allow implementation of the statute as of that time. When a statute is struck down, it is not literally stricken from the statute books; it is simply held unenforceable for the time being-until and unless something changes. If something does change to undo the court's invalidation, then the statute can be enforced without having to be reenacted, since it remained on the statute books all along. (Indeed, SB 396 would not be needed except for the fact that Proposition 187 remains on the statute books.)

Well, what might change after a court invalidates a statute to bring it back to life? For one thing, a higher court could reverse the ruling that invalidates the statute. Certainly no one would argue that the California legislature could repeal Proposition 187 during the time it was pending on appeal to the Ninth Circuit, because we all know that many district court rulings are short-lived. But now that the appeal is dead, isn't Judge Pfaelzer's opinion permanent? Not quite. Intervening developments in the law-e.g., new Supreme Court cases handed down-could enable parties to seek the "reopening" of a case and get relief from a court order that no longer reflects the current legal or factual landscape. Indeed, although the political climate in California would likely prevent elected officials from trying to resurrect Proposition 187 anytime soon, there are parts of the Supreme Court opinion in Arizona v. United States that upheld some of Arizona's SB 1070 and that arguably call into question some of Judge Pfaelzer's analysis concerning the involvement of local law enforcement officials in policing immigration violations.

Would Supreme Court Invalidation of Proposition 187 Have Changed Anything?

Suppose Judge Pfaelzer's ruling had been appealed to, and affirmed by, the Supreme Court. Would the analysis be different then? Not really. Even a Supreme Court ruling invalidating a statute does no more than indicate a current unwillingness by a majority of the Justices to permit enforcement, but that too could change. Some of the most important (and righteous) decisions by the Supreme Court have involved overruling past Supreme Court decisions that we now think were wrongly decided, so we know that no ruling by the Supreme Court is truly permanent. While it is rare for the Court to overrule a past decision that had recognized an individual right or limited state power-it is more common, as in Brown v. Board of Education, to overrule a past ruling that had rejected, rather than embraced, limits on state power-there is nothing that prevents the Court from undoing past rulings that impose limits on government. For example, if the Justices were to overrule Roe. v. Wade and declare no constitutional protection for abortion rights, then states that had abortion regulations on the books that were adopted prior to Roe could begin to enforce those regulations without the need to reenact anything. To be sure, when a state chooses not to enforce a law for a long period of time, the doctrine of "desuetude" may prevent the state from attempting to revive the statute, but if the reason for non-enforcement was a now-considered-erroneous judicial injunction, then enforcement could resume after the constitutional error has been corrected.

Perhaps an easy way to see that SB 396 is legally problematic even though Proposition 187 is currently enjoined is to ask whether the California legislature could repeal Proposition 187 without a majority vote of both houses of the state legislature. Suppose SB 396 backers in the California Senate took the position that because Proposition 187 has been invalidated, they can repeal it from the books without involving the State Assembly. Everyone would readily see that this course of action would be illegitimate, because the California Constitution requires all laws to have bicameralism-and this requirement is independent of the merits of Proposition 187's unconstitutionality. But the requirement of bicameralism is no more important and no more independent than the requirement that the legislature seek the people's approval before repealing an initiative. If "code cleaning" cannot excuse ignoring the former, neither can it excuse ignoring the latter; failing to involve the Assembly is no different for these purposes than failing to involve the people.

None of this means there is no role for the California legislature to play in bringing about the formal repeal of Proposition 187. As I have been noting, the California Constitution does permit legislative repeal of initiatives, but only with approval of the voters. SB 396 could and should be restyled as a measure that is submitted to the voters, so that all Californians can reconsider whether Proposition 187 represents the will of the people. That is the proper and lawful way to lay Proposition 187 to rest.

Cross-posted from Justia's Verdict.

While many analysts this month are understandably focused on the blockbuster rulings that are due from the Supreme Court in June-the back end of the Supreme Court litigation process, if you will-in my column today I introduce and briefly analyze the front end of three cases on which the Court has granted review for the next Term, which begins this fall. Although the three disputes arrive at the Court from different kinds of lower courts and involve quite different kinds of questions on the merits, these cases taken together illustrate some nuances in the extremely important yet widely misunderstood principles that explain how the Court selects the 70-90 cases to review in full from among the thousands and thousands of requests for review each year. Quite often, the Supreme Court grants review because the lower court ruling in question (often from one of the U.S. Courts of Appeals) conflicts with other lower court rulings on precisely the same (and important) legal question, and the Court wants to provide guidance and uniformity. Indeed, one of the first things that incoming Supreme Court law clerks learn when they arrive at the Court is the fine art of differentiating true lower court conflicts from illusory ones. But the cases discussed below serve as helpful reminders that Supreme Court review involves much more than just resolving lower court conflicts.

The Boomerang of Zivotofsky v. Kerry and Respect for Congress

The first case is in the trio is one the Supreme Court has seen before. Zivotofsky v. Kerry involves an effort by Menachem Zivotofsky, a U.S. citizen born in Jerusalem to U.S. parents, to have his U.S.-issued passport (and U.S.-issued Consular Report of Birth) indicate his place of birth as "Jerusalem, Israel." For many years, U.S. Presidents and U.S. State Departments (who issue passports and consular records) have scrupulously avoided taking an official position on the contentious question whether Jerusalem is a part of Israel. Executive branch practice concerning the birth of U.S. citizens in Jerusalem follows this policy of neutrality, and consistently has been to record the place of birth of such citizens on U.S. documents simply as "Jerusalem," without mention of any country.

In 2002, Congress passed a law that, among many other things, requires the Secretary of State, upon the request of a citizen or the citizen's legal guardian, to record the place of birth for citizens born in the city of Jerusalem "as Israel." President Bush signed the entire statute into effect, but (as he did from time to time) issued a signing statement to disclaim the legal effect of this particular part of the statute, because (he said) forcing the State Department to record Jerusalem births as being in Israel would impermissibly interfere with the President's constitutional power to formulate and speak on behalf of American foreign policy. The plaintiff in Zivotofsky seeks to force the executive branch to follow the terms of Congress's 2002 statute, notwithstanding the President's signing-statement disclaimer.

A few years back, the U.S. Court of Appeals for the D.C. Circuit rejected the plaintiff's efforts, but not on the ground that the Secretary of State was acting permissibly in declining to follow the statute. Instead, the D.C. Circuit held, the lawsuit presented a "political question" over which federal courts have no power to speak. In other words, the court purported not to be exercising jurisdiction to resolve the lawsuit on the merits at all, saying instead that regardless of who is right and who is wrong under the law, this kind of matter is not susceptible of judicial resolution.

The Supreme Court reversed this decision in 2012, holding that the political question doctrine does not bar review of this case. The key question whether the 2002 statute improperly invades the President's foreign affairs power to decide which countries to recognize-and is thus not a permissible exercise of Congress's power to regulate passports or any other congressional authority-is a legal one, not a political one. The Justices, rather than resolving the merits-which the Court had the power to do-then sent the case back to the D.C. Circuit to decide the merits, by "careful[ly] examin[ing] . . . the textual, structural, and historical evidence put forward by the parties regarding the nature of the statute and of the passport and recognition powers."

That is precisely what the U.S. Court of Appeals for the D.C. Circuit did on remand, after which it concluded that the statute was indeed an impermissible invasion of presidential authority that he enjoys under the Constitution. Although the D.C. Circuit found the text of the Constitution less than clear, it found a strong historical record over the last two hundred years of the President asserting-and Congress seeming to allow-exclusive executive power to recognize foreign nations, which weighed heavily against the validity of the statute. And although the court conceded that Congress does have meaningful power to regulate passports, that power is not exclusively congressional in the way that the recognition power is exclusively presidential. Since the statute might be said to interfere with the President's foreign policy choice to remain neutral as to the legal authority over Jerusalem-indeed, challenging this neutrality policy was the reason Congress passed the provision-the statute conflicted with the President's foreign policy autonomy and thus could not be enforced.

Zivotofsky again sought Supreme Court review at the end of last year, and about a month ago the Justices agreed to hear the case again. Why would the Court choose to grant review on the merits, given that it consciously chose not to reach the merits in 2012? Part of the answer is that the Court in 2012 didn't have the benefit of full-fledged lower court analysis on the merits, and the Court's general practice is not to reach the merits of a dispute (even if it has the power to do so) when the courts below haven't. But that still doesn't quite explain why Zivotofsky is worthy of one of the Court's six- or seven-dozen precious slots for review in 2014-2015. After all, disputes over the validity of the statute are unlikely to recur very often, the D.C. Circuit opinion does not conflict with rulings from any other lower court, and there are no high financial stakes or life-death consequences of the ruling-the factors that most often account for a grant of review. On top of all that, the D.C. Circuit ruling was without a dissent, and appears to be carefully reasoned and likely (at least to many analysts) correct. Why grant, then?

I think the primary reason is that a federal appellate court has struck down a duly enacted congressional statute, and one way the Court shows its respect for Congress (even as it disrespects Congress in other ways) is to grant review in a high percentage of such cases, even when there is no likelihood of a lower court split and even when the ruling below is arguably quite solid. This may be especially true in separation of powers disputes. If the federal judiciary is going to side with the President against Congress, the least it can do is offer its "Supreme" forum to demonstrate it takes seriously Congress's interests and arguments and is not biased in favor of the President. The grant of review in this case may be as simple as that.

Comptroller v. Wynne: An Anomalous but Potentially Infectious Ruling

Comptroller v. Wynne comes to the Court not from a U.S. Court of Appeals Circuit, but from the Maryland state courts. They ruled that the Commerce Clause of the U.S. Constitution gives each taxpaying individual a constitutional right to reduce or eliminate the income tax he owes in his state of residence because of income taxes paid to other states on that same income. The Supreme Court granted review to take up this question a few weeks ago.

To understand why, let us begin by noting that the Supreme Court has already held that "a jurisdiction may tax all the income of its residents, even income earned outside the taxing jurisdiction." The Court reasoned that residents enjoy the privileges and benefits of living in their state of residence, and thus it is permissible to make them pay in that state even if the income was earned elsewhere. The Supreme Court has also held that a state can tax income of non-residents earned within that state. There is thus the possibility for income to be taxed multiple times, once by the state of the taxpayer's residence and again by the state(s) where the income was earned. The Supreme Court has intimated that this seeming unfairness is something states are free to redress by giving tax credits, but that the question is one of legislative grace rather than constitutional right.

In Wynne, the Maryland state courts (along with the taxpayers who were objecting to Maryland's tax) observed that the Supreme Court's consistent rulings upholding state tax regimes in this regard all involve challenges brought under the Due Process Clause of the Fourteenth Amendment, and that the Supreme Court has never spoken to whether the Commerce Clause of the Constitution permits multiple states to tax income multiple times in this way. Neither have the state supreme courts from states other than Maryland. For this reason, the ruling below in Wynne may not generate any clear conflict with other high appellate rulings. And yet the Supreme Court granted review. Again, the question is why. Part of the answer may be that the U.S. Solicitor General (SG)-invited by the Court to weigh in-urged the Justices to grant review. And why did the SG think review was warranted in spite of the absence of a clear split in lower court authority? Because the ruling below is most likely incorrect, because it introduces significant instability in at least one state's (Maryland's) tax regime, and because, if left unchecked, it has the potential to encourage a great deal of additional destabilizing litigation in other states. Once more, the absence of a clear lower court conflict does not make a case unworthy of review.

The Alabama Redistricting Disputes-Appeals Rather Than Petitions for Certiorari

The third case (or rather pair of cases) I will mention briefly arise out of the Alabama legislature's redrawing of election district lines throughout the state after the 2010 Census. The cases, Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama, raise the question whether the State impermissibly considered race in the drawing of district lines by packing African American voters into districts so that these racial minorities would make up supermajorities in these voting districts. Such supermajorities would enable African American voters to elect candidates of their choice in those districts, but this would also would be the case with mere simple majorities. A second (and possibly intentional) effect of the redistricting is that it would reduce the influence African American voters have in other districts. The lower federal court (a so-called three-judge district court panel that Congress created to hear redistricting cases) upheld Alabama's line-drawing, and the Supreme Court accepted review. The questions raised on the merits under the Constitution and the federal Voting Rights Act are quite complex and potentially important, but as with Zivotofsky and Wynne,the lower court rulings in the Alabama cases do not conflict with rulings from other lower courts. Why, then, was Supreme Court review indicated? Here the answer is easier, but also more technical. These cases are among the kinds of disputes for which Congress has conferred so-called "appeals" jurisdiction of the Supreme Court, rather than the "certiorari" jurisdiction that accounts for the lion's share of the Court's docket. Unlike certiorari jurisdiction, which is entirely at the Court's discretion, appeals jurisdiction is mandatory. That is, persons who properly bring cases to the Court pursuant to an appeals route rather than via a petition for a writ of certiorari enjoy a "right" to have the Court to take their case and rule on the merits. Appeals cases today comprise a very small percentage of the Court's workload, but they used to be a much bigger component. When appeals are brought to the Court under one of the few remaining appellate access statutes that Congress has not repealed (and challenges to statewide apportionments decided by three-judge District Court panels are among the kinds of cases still to benefit from appeals jurisdiction), the Court must rule on the merits one way or another, and cannot simply deny review and express no view of whether the lower court properly applied the law. So the full briefing and oral argument ordered by the Court in the Alabama cases tells us little about how the Justices might feel on the merits, other than that the cases are difficult enough not to be susceptible to summary affirmance.

All three of these cases illustrate how complicated and multi-faceted the question of getting the Supreme Court to hear your dispute can be.

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.

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.