Cross-posted from Justia's Verdict.

In my column today, I analyze an interesting case that a state Supreme Court will soon decide that illustrates, and has implications for, important national questions concerning the Establishment and Free Exercise clauses of the First Amendment.  In particular, the Kentucky case, Kant v. Lexington Theological Seminary, demonstrates the need for the U.S. Supreme Court to answer many of the key questions it left open in last year's blockbuster ruling in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, where the Court recognized a so-called "ministerial exception" enjoyed by religious institutions in employment discrimination suits.  I begin by providing background on the 2012 Hosanna-Tabor ruling, and then explain how the Kentucky courts thus far have understood and extended that ruling in the Kant dispute.

The Supreme Court's Recognition of a "Ministerial Exception" to Employment Discrimination Law

The plaintiff in the Hosanna-Tabor case, Cheryl Perich, was a commissioned minister in the Lutheran Church-Missouri Synod who worked as a faculty member at a small church-operated K-8 parochial school in Michigan, where she taught, at various times, among other things, math, language arts, social science, gym, art and music.  She also taught a religion class four days a week; led students in daily devotional exercises and prayers; and led a school-wide chapel service a few times a year.  She later developed narcolepsy and informed her employer about her condition and, ultimately, her intention to assert her legal rights under the disability laws.  She was ultimately fired, and brought a charge with the federal Equal Employment Opportunity Commission (EEOC) against Hosanna-Tabor, claiming that she had been terminated in violation of the Americans with Disabilities Act (ADA).  The EEOC then filed suit against Hosanna-Tabor, alleging that it had unlawfully fired Ms. Perich in retaliation for her assertion of her ADA rights.

The U.S. Supreme Court ruled in favor of the school, holding that the Establishment and Free Exercise Clauses of the First Amendment bar employment discrimination suits brought on behalf of ministers against their (employer) churches, and that Ms. Perich fit the definition of "minister" for these purposes.  The Court began with a brief history of the Constitution's religion clauses that highlighted the need for government not to interfere with important internal church processes.  It then discussed cases in which the Court had, under the Constitution, deferred to church tribunals that were established within a church's hierarchy to resolve disputes over the proper use of church property or assets when disagreements between various individuals or factions within the church arose.   The resolution of these "quintessentially religious controversies," the Court reminded, is "strictly a matter of ecclesiastical government" that is committed to "the highest ecclesiastical tribunals" and not something for the courts to undertake.  Relying on these principles and on the experience of lower courts in this realm, the Justices unanimously (albeit in three separate opinions) concluded that the First Amendment compels a "ministerial exception" to employment antidiscrimination laws that precludes the application of these laws to claims concerning the employment relationship between religious institutions and their ministers.

The Kant Lawsuit

The Kentucky case now pending was filed by Laurence Kant, who was formerly employed as a tenured faculty member at the Lexington Theological Seminary (LTS).  LTS is affiliated with the Disciples of Christ Christian denomination.  The dominant (but perhaps not sole) purpose of LTS, reiterated at the beginning of its Faculty Handbook, "is to prepare faithful leaders for the church of Jesus Christ and, thus, to strengthen the church's participation in God's mission for the world."  All of the Seminary's degree programs are faith-based, and are designed to prepare graduates for Christian ministry.

Mr. Kant is not a Christian minister; he is not even a Christian.  He is of the Jewish faith and during all relevant times he maintained his Jewish religious beliefs.  While at LTS, he taught a range of courses focusing on, among other areas, biblical studies, Jewish studies, Jewish-Christian studies, world religions, biblical languages, and religion and culture.  In 2006, he was awarded tenure.  The LTS Faculty Handbook (mentioned above) described tenure in the following terms:  "Tenure . . . means appointment to serve until retirement, resignation or dismissal for adequate cause. . . [T]he only grounds for dismissal or a tenured faculty member are moral delinquency, unambiguous failure to perform the responsibilities outlined in this Handbook, or conduct detrimental to the Seminary. . . Along with tenure, however, go the responsibilities specified in the Handbook as well as an added expectation of leadership in the faculty."

In 2009, after the nation's financial crisis hit LTS's endowment hard, LTS declared a financial emergency and announced its intention to take dramatic steps, including the elimination of the tenure of its faculty along with other cost-cutting measures, designed to keep the institution solvent.  Pursuant to this plan, LTS terminated Kant's employment in 2009.

Mr. Kant then sued in state court, alleging breach of the contractual promises in the Faculty Handbook that his employment could be terminated only for specified reasons, none of which was present here.  By a 2-1 vote, the Kentucky Court of Appeals (and the case is now pending in the Kentucky Supreme Court, which accepted Mr. Kant's request for review) rejected Kant's lawsuit on two separate but related grounds.  First, the court held that the case "involved an ecclesiastical matter" that foreclosed the exercise of jurisdiction by a civil court.  Second, the court ruled that LTS enjoyed immunity from the breach of contract claims under the ministerial exception doctrine recognized in Hosanna-Tabor.  (Although one of the two members of the majority wrote a separate concurrence some of which could be read as relying only on the ministerial exception, he did observe that the main opinion "becomes the majority with my concurrence" and also commented in his opinion that LTS's restructuring "is an ecclesiastical matter over which no civil court has subject matter jurisdiction."  Thus, the majority opinion is best understood as having relied on both grounds.)

In both respects, the Kentucky court's ruling goes significantly beyond the Supreme Court's ruling in Hosanna-Tabor, and highlights the need for the Supreme Court to provide additional guidance in this area.

The "Ecclesiastical Matters" Rule Barring Judicial Resolution

Let us first consider the Kentucky court's decision that it could not weigh in on Kant's contract claims because to do so would impermissibly draw it into resolving ecclesiastical matters.  The majority opinion says "Kant's claims . . . cannot be decided without interpreting the Faculty Handbook to determine whether it allows for restructuring of LTS under a financial emergency and for eliminating tenured faculty under those circumstances.  Indeed, an inquiry into the rationale for LTS's decision making as to who will teach its students-all of whom attend there with a desire to become pastors or ministers-would be an inquiry into an ecclesiastical matter by this Court."

This seems like a non sequitur to me.  The first sentence is undeniably correct; Kant's breach of contract claims require interpreting the promises-and the limits on those promises-made in the Faculty Handbook; the handbook is the contract on which Mr. Kant relies.  But the second sentence would not seem to follow; deciding whether the Faculty Handbook contract implicitly contains a right of LTS to eliminate tenure in times of financial emergency does not involve religious doctrinal or ecclesiastical matters in any way.  If LTS had fired Kant because it said that he had engaged in religiously immoral behavior within the meaning of the Faculty Handbook, deciding whether certain deeds were morally delinquent (within the context of the church community) might draw courts into ecclesiastical matters.  But deciding whether a contract has an exception for financial emergency does not.

To see this, imagine that Kant had taught physical education, rather than religious studies.  And imagine that the Faculty Handbook promised that tenured members of the faculty would be entitled to use the Seminary's gymnasium after school hours for free.  If the Seminary later tried to begin charging tenured faculty for use of the gym (because of financial exigencies), would anyone argue that a breach of contract claim relying on the Handbook would implicate ecclesiastical matters?

Or imagine a contract that was entered into not with an LTS employee, but rather with an outside provider of services.  Let us suppose LTS hires a roofer to put on a new roof.  The contract states:  "In order to promote the use of the LTS facility as a continuing Seminary, Roofer X shall put on a roof suitable for educational structures for which LTS will pay him $Y."  Now imagine further that the roofer puts on a new roof, and LTS, because it is at that time in some financial difficulty, refuses to pay the roofer (so that it will have money to buy new books for its library instead).  If the roofer then sues on the contract, we could not say that interpreting the contract and inquiring into whether the reason LTS has not paid-the desire to spend the money on other religious-instruction-related programs-is permitted under the contract as an excuse for non-payment draws a court into ecclesiastical matters, even though such a contract claim would involve an inquiry into "the rationale for LTS' decisionmaking" as to how to devote its resources.  Certainly the ecclesiastical-matters barrier to adjudication cannot mean that religious institutions can never be sued for breach of contract, and just because the contract with Kant involves faculty personnel does not mean that interpreting it involves ecclesiastical matters.  To the extent that the Supreme Court's invocation of ecclesiastical deference in Hosanna-Tabor and other cases has been misunderstood, clarification by the high Court will be helpful.

The "Ministerial Exception"

This point leads us nicely into the ministerial exception topic, because it may well be that what troubled the Kentucky Court of Appeals most was not the ecclesiastical nature of the contract, but rather the ministerial nature of the party suing-Kant.  And there are aspects of this case that make it a more attractive candidate for application of the ministerial exception than was Hosanna-Tabor.  In particular, the fact that Kant taught at a wholly sectarian Seminary-as contrasted with the parochial school in Hosanna-Tabor, a place designed not for religious ordination but rather for a general, if religiously-based, education-leans in LTS's favor.

Yet there are a number of other differences between the two cases that cut against the application of the ministerial exception in Kant.

First, Hosanna-Tabor involved an exception to anti-discrimination laws.  The Court there explicitly "express[ed] no view on whether the exception bars other types of suits, including . . . breach of contract" [claims].  There will be enough time to address the applicability of the exception to other circumstances if and when they arise."  The Kant court acknowledged this caveat in Hosanna-Tabor, but nonetheless-and without any analysis or explanation other than the mention of the fact that some lower federal courts had applied the ministerial exception to contract claims-simply extends the exception.  Maybe it makes sense to apply the ministerial exception outside of the context of anti-discrimination laws, but certainly some discussion of why this is so-and how far the exception should reach-is in order.

Second, and very important, the Kant court found that Mr. Kant fell within the ministerial exception because of the religious-instruction function that he performed within LTS-"teaching students who desired to become involved in Christian ministry."   As the court noted, "[b]ecause Kant's primary duties involved teaching religious-themed courses at a seminary," he is covered by the exception.  This seems far too quick.  For starters, as the dissent points out, there is a difference between teaching religion (when one is trying to convince students to accept certain religious beliefs, or at least reinforce those beliefs), and teaching about religion, which is an academic exercise in ideas, not an attempt to inculcate particular spiritual beliefs.  And on the record in this case, Mr. Kant may very well have been doing the latter.

More generally, and perhaps more fundamentally, there is a divergence between the Kant court's approach and that of the Supreme Court majority in Hosanna-Tabor on the question of how we decide whether someone is a minister for these purposes.  In Hosanna-Tabor, the Court eschewed any rigid formula, but it did stress not just the function of a particular employee, but also the status and title that that employee enjoyed and used.  Indeed, in Hosanna-Tabor, the Court identified four reasons why Ms. Perich should be considered a minister: (1) the "formal title" of minister was given to her by the church when she was commissioned; (2) as a prerequisite to that commission, she undertook religious training and education designed to demonstrate her faith and her ability to minister; (3) she used the title herself and held herself out as a minister and a believer; and (4) she undertook certain "functions . . .  performed for the Church."  Three of the four factors (the first three) focus on title and status, rather than function.  Indeed, the Court in Hosanna-Tabor chided the United States Court of Appeals for the Sixth Circuit (the lower court in the case) for failing "to see any relevance in the fact that Perich was a commissioned minister."   As the Court observed, "the fact that an employee has been ordained or commissioned as a minister is surely relevant, as is the fact that significant religious training and a recognized religious mission underlie the description of an employee's position."  And yet the Kant court all but ignored the fact that Mr. Kant is not-and could not be, since he is openly Jewish-considered a minister within the Disciples of Christ church.  He professed no belief in, and was not commissioned under, any Christian faith.  Neither he, nor the church, would consider him a minister for any purpose other than a legal immunity from suit.

It is true that Justice Alito (joined by Justice Kagan) wrote separately in Hosanna-Tabor to make clear their views that function-and not just titles or status-should matter in deciding who is a minister.  But they seemed to be writing particularly about religions that don't use commissions or ordinations or titles of ministers; thus, their opinion needn't be read to say that, for religions that do use such titles, the status of a particular employee should not be an important factor.  Moreover, the fact that Justices Alito and Kagan felt they had to write separately serves to underscore how important status/title was in the analysis of the majority opinion, which six Justices signed onto without elaboration or reservation.  In any event, whether one feels the Kant ruling is an overly expansive application of the ministerial exception or not, the larger point is that before too long, the Supreme Court is going to need to step back in and clarify precisely how broadly, and to whom, the exception applies.

Cross-posted from Immigration Prof Blog.

The Supreme Court has had a steady diet of immigration cases in recent years, with Padilla v. Kentucky (2010) and Arizona v. United States being the most well known of modern vintage.  

In the 2011 Term, the Supreme Court issued five immigration decisions. Three of the cases involved removals based on criminal convictions, which have been before the Court in increasing numbers in recent years.  The recurrence of criminal removal cases should not be surprising given that the Obama administration has been removing noncitizens who have had brushes with the law in record numbers. 

The immigration docket slowed a bit in the 2012 Term, with only two immigration decisions handed down by the High Court. However, the Court did decline to again enter the fray of state immigration enforcement laws. In 2012, the Court decided Arizona v. United States, the blockbuster ruling that curbed state laws purportedly seeking to enforce the U.S. immigration laws. This spring, the Court, with Justice Scalia in dissent, denied certiorari in Alabama v. United States, the Alabama immigration enforcement law case.  The state of Alabama had sought cert after having lost in no small part in the Eleventh Circuit.

Moncrieffe v. Holder

Adrian Moncrieffe immigrated to the United States from Jamaica at age 3 and grew up in the United States. He is the father of two U.S. citizen children. Moncrieffe was pulled over while driving in his home state of Georgia. Police found 1.3 grams of marijuana in his car, an amount the Supreme Court stated as enough for two to three marijuana cigarettes. Moncrieffe was charged with violating an expansive Georgia statute that criminalizes behavior ranging from the social sharing of a small amount of marijuana, to distribution of large quantities of marijuana for sale. Moncrieffe pled guilty and successfully completed probation. Two years later, immigration officials arrested and detained him, and initiated removal proceedings against Moncrieffe alleging that his conviction was an “aggravated felony” and a therefore a “felony” under the federal Controlled Substances Act. The immigration court ordered Moncrieffe removed from the United States. The Board of Immigration Appeals affirmed and the Fifth Circuit denied the petition for review.

In a 7-2 decision, the Supreme Court in Moncrieffe v. Holder resolved a split among the circuits concerning whether a conviction under a state statute that simultaneously criminalizes conduct characterized by both of the Controlled Substance Act (CSA)’s felony and misdemeanor provisions constitutes a felony conviction under the CSA, thus making the crime an “aggravated felony” for immigration purposes (and thus making the noncitizen ineligible for a variety of forms of relief from removal). The Court held that a conviction under state law criminalizing social sharing of a small amount of marijuana is not an “aggravated felony” because the Georgia statute encompassed intent to distribute without regard to amount and remuneration.

Moncrieffe v. Holder is the third time in seven years that the Court held that a relatively minor drug offense was not an “aggravated felony” for immigration purposes.  The Court has been unwilling to impose what amounts to mandatory removal on long term lawful permanent residents of the United States based on relatively small time drug crimes.  The decision in Moncrieffe v. Holder thus will aid small time drug offenders in future removal cases. 

For detailed recaps of the opinions on Moncrieffe, click here and here.

Chaidez v. Holder

Roselva Chaidez entered the United States from Mexico in 1971 and became a lawful permanent resident in 1977. In connection with an automobile insurance fraud scam in which she received less than two thousand dollars, Chaidez on advice of her attorney pled guilty to two counts of mail fraud and was sentenced to probation and restitution. Her conviction became final in 2004.  According to Chaidez, her attorney never warned her that her conviction could result in her mandatory removal from the country.   In 2009, after Chaidez’s naturalization petition brought her and her conviction to the attention of the federal government, removal proceedings were instituted against her. Through a writ of coram nobis, Chaidez sought to set aside her conviction.   While the petition was pending, the Court issued its decision in Padilla v. Kentucky (2010), which held that the Sixth Amendment requires defense attorneys in criminal cases to inform noncitizen clients of the deportation risks of guilty pleas.  The Seventh Circuit held in Chaidez’s case that Padilla does not apply to a challenge to a conviction that became final before it was decided.

In Chaidez v. Holder, the Supreme Court agreed with the Seventh Circuit.  Justice Kagan wrote for seven justices and ruled that Padilla v. Kentucky does not apply retroactively to cases already final on direct review. Justice Sotomayor, joined by Justice Ginsburg, dissented.  The majority ruled that the change in the law was sufficiently significant that it should not apply retroactively.

There is little reason to think that Chaidez will have much of an impact on the Court’s retroactivity or immigration jurisprudence. The Court understood this to be a run-of-the mill application of basic retroactivity principles, with the junior Justice assigned the decision. Moreover, although tangentially involving immigration law, the decision does not meaningfully address any issues of immigration law or change in any way the holding in Padilla v. Kentucky.

At the same time, the Supreme Court’s holding that Padilla v. Kentucky will not apply retroactively will no doubt affect large numbers of plea deals in which the convictions were entered into before March 2010. The Obama administration has made it a priority to remove “criminal aliens” from the United States and has based many removal actions on convictions more than a few years old. Ultimately, thousands, if not, tens of thousands, of lawful permanent residents facing removal are likely to be affected by Chaidez and likely to suffer significant hardships if removed from the United States. Chaidez, for example, has lived in the United States for four decades and has three children and two grandchildren who are U.S. citizens. Now facing removal, she faces the possibility of being stripped from the only community and family she really has ever known.

For a detailed recap of the opinions in Chaidez, click here.

Conclusion

The Supreme Court’s immigration decisions in the 2012 Term (as well the last two Terms) are difficult to characterize except to say that the Court approaches each case on an individualized basis and applies conventionall rules of administrative agency deference, statutory construction, retroactivity analysis, and the like. The analysis is not ideologically-heavy handed and the outcomes can be difficult to predict.  Immigrants seem to win more than they lose, a pattern that one might not necessarily predict in a Supreme Court led by a conservative Chief Justice.

Cross-posted from Justia's Verdict.

In my last column (Part One of this series), I began to lay out what I think might (and should) happen if the U.S. Supreme Court decides that the Proposition 8 sponsors lack standing in federal court.  I explained my view that such a ruling is the best option for the Supreme Court because the voters of California, in enacting Proposition 8, cannot be said to have designated the sponsors as the People's agents-and agency is a key concept here-in that the voters did not do or say anything that manifested their assent to create a relationship of agency.  (It is on this crucial question of assent to agency where, as I explain in longer academic writings, I part company with thoughtful commentators, like Ed Whelan, who have argued that as long as the California Supreme Court today thinks that under the California constitution the sponsors are the People's representatives, it does not matter whether voters, when they enacted Proposition 8 in 2008, could have anticipated this principle of California law, which was not made clear until 2011.)

I also explained in Part One in this series of columns why I believe that if the Proposition 8 sponsors are found by the Supreme Court to lack standing, both the Ninth Circuit's and the District Court's rulings below should be vacated (that is, erased), and the plaintiffs (the two same-sex couples who sued in federal court in San Francisco) should get relief in the form of a "default" judgment that allows them, and them only (for the time being), to get their marriage licenses.  This result follows, I think, from the overall logic of the law in this area, as well as from what the U.S. Supreme Court said in Karcher v. May, in which a unanimous Court intimated that if the only defendant who is defending on the merits is found on appeal to have lacked standing all the while, the district court's adjudication of the merits of the plaintiff's claim should be vacated.

In the space below, I delve further into what might happen after it is determined whether the District Court's rulings should be left intact or undone.

Scenario 1: Judge Walker's Injunction Stands, and Is Read Broadly

Let us first imagine that the federal courts do not follow my suggested approach concerning Judge Walker's order.  I start with that possibility because I acknowledge that many (maybe a majority of) analysts assert (albeit, to my mind, without adequate explanation or justification) that District Judge Walker's injunction prohibiting the enforcement of Proposition 8 should  not be disturbed and should go into effect as is.  Suppose  that the injunction is left intact, and suppose that the injunction is read (as it certainly can be read) to apply not just to the named same-sex couple plaintiffs, but also to other same-sex couples.  What could happen then?

Well, to begin with, we could expect that neither the California Attorney General nor the Governor would contest this broad reading of the injunction.  And we know that the sponsors of Proposition 8 would not have any legal standing to object either (at least not in federal court).  The two county clerks who were named as defendants in the action, the clerks of Los Angeles and Alameda counties, would also probably be content to issue marriage licenses to other same-sex couples in those counties.

But what about the county clerks in other counties, counties that weren't named in the Proposition 8 lawsuit in Judge Walker's court?  If they feel bound by Judge Walker's order, and none complains, then perhaps Proposition 8 will not be enforced at all, and marriage will be available to all qualified same-sex couples in the state.

Yet, there are a few wrinkles here.  First, some individual who supports Proposition 8 might sue one of these county clerks and ask a court to clarify that Judge Walker's injunction does not apply to that clerk.  The plaintiff here might argue that the clerk in question is not bound by Judge Walker's injunction because he, the clerk, was not a party to that lawsuit and is not under the "control or supervision" (the term Judge Walker used) of any of the parties (such as the Governor.)  Any such suit would probably be brought in state court, because it's not obvious who would have standing in federal court to object to a clerk's issuing of same-sex marriage licenses.

Second, it bears noting that some county clerks represent, and have been elected in, counties that strongly support Proposition 8.  What if one of these clerks resists issuing same-sex marriage licenses, arguing that she remains bound by Proposition 8 until and unless a court tells her, specifically, otherwise?  If so, that clerk might then be sued by a same-sex marriage license applicant to get a determination of whether Judge Walker's order binds her.  Or she herself may even act proactively, going into court to ask for a clear ruling that she, the clerk, is not bound by Judge Walker's injunction or, if she is, to ask that the injunction be reopened because she didn't have a chance to participate in the proceedings Judge Walker's court.

This may then raise the question whether local clerks have federal standing to defend Proposition 8 (and remember that they, unlike the sponsors, they are elected officials).  And even if they do, a similar question arises of whether they have the authority to take a position in court that differs from the position urged by the Governor and Attorney General (that Proposition 8 is unconstitutional.)  These two related questions are tricky, and would likely require additional input from the California Supreme Court, which would take time.

My provisional sense is that it should be rare for any lower executive official in California to be able to take a legal position in court contrary to that which is being asserted by the Governor on the question of the meaning or validity of a statewide law; in a seminal ruling in 1981 (when Jerry Brown was Governor the first time!), the California Supreme Court ruled that even the state Attorney General (elected to be the chief legal officer of the state) could not take a position adverse to the Governor's in court because under the State Constitution, the Governor retains the "Supreme Executive power" to determine the public interests, and under state statutes he is to "supervise the official conduct of all executive and ministerial officers."  It may well be that county clerks are deemed executive and/or ministerial officers for these purposes, and thus are subject to gubernatorial control with respect to the positions taken in court.  It wouldn't make much sense, to me, to give locally elected county clerks more authority than the state's chief legal officer, the Attorney General, to defy the Governor in court, unless we conclude that county clerks are autonomous like charter cities, which have some independence from state control.

But as I suggested above, all this would take time to sort out (especially if any of the proceedings take place in federal court, and the federal judges feel the need to seek input from the California Supreme Court by way of certification, the device the Ninth Circuit used to get state court input on the question of sponsor standing.)

Or maybe all of these problems could be avoided if all same-sex couples seeking to be married are willing to go to Alameda or Los Angeles counties where licenses might be freely issued. Perhaps that would effectively nullify Proposition 8.  But it would also impose its own set of inconveniences on some couples.

Scenario 2:  Judge Walker's Broad Injunction Is Either Read Narrowly to Apply to the Named Plaintiffs Only, or Replaced by a Narrower One That by Its Terms Applies to the Named Plaintiffs Only

Now let us imagine that the course that I argue is the correct legal one is followed, and that whatever injunction is in force is issued (or construed) to award marriage licenses to the named plaintiffs only.  Then what?  One possibility is that county clerks, at least in counties that strongly oppose Proposition 8, would simply decide to start issuing same-sex marriage licenses generally even though no court order is directing them to do so.  While that is imaginable politically, I think it runs into legal barriers.  Indeed, that is precisely the action that was taken by the county clerk in San Francisco in 2004 (at SF Mayor Gavin Newsom's urging) but that was repudiated unanimously by the California Supreme Court in Lockyer v. San Francisco.  There, a majority of California Justices emphatically rejected the idea that a "local executive official, charged with the ministerial duty of enforcing [state law,] has the authority to disregard the terms of the [state law] in the absence of a judicial [directive], based solely upon the official's opinion that the [law] is unconstitutional."  So I don't think that county clerks could, or should, simply start disregarding Proposition 8 on their own.

But what if the Governor were to try to direct county clerks not to implement Proposition 8?  Again that might be politically plausible, but would it fly legally?  For starters, what about the Lockyer ruling?  Strictly speaking, the issue presented in Lockyer involved the power of local executive officials, not that of the Governor, but Justice Werdegar's separate writing in that case understood the majority opinion to sweep broadly and apply not just to local executive officials but to the entire executive branch:  "Make no mistake, the majority does . . . hold[] that [all] executive officers must follow statutory rather than constitutional law until a court gives them permission to do otherwise in advance."

Even if the Governor is not covered by the Lockyer opinion, there is still a question under California law about whether locally elected county clerks enjoy some autonomy from gubernatorial control in their performance of their duties.  I suggested above that perhaps a county clerk may not take a position in court that is adverse to the Governor's on the validity of a state law, but there may be a distinction between having control over the legal positions asserted in court, and having control over enforcement of the law itself.

Indeed, such a distinction (between declining to enforce and declining to defend in court) is hinted at in another potentially important piece of law that may constrain the Governor here, Article III, Section 3.5 of the California Constitution.  It provides that no "administrative agency [even one created by the State Constitution] has . . .power . . . to refuse to enforce a statute, on the basis of its being unconstitutional, unless an appellate court has made a determination that such a statute is unconstitutional."  Does this provision prevent the Governor from directing officials (even if they are otherwise under his control) not to enforce Proposition 8 until an appellate court determines Proposition 8 is unconstitutional?

It might, and it might not.  Is the Governor an "agency" within the meaning of Article III, section 3.5?  The Attorney General has issued advisory opinions that offer one possible definition of "agency" here that is broad enough to include, essentially, all state-level executive operations, and there is no doubt that the Governor is quintessentially executive and operates at the state, rather than the local, level.  At least one California court case seems to apply section 3.5 to another statewide elected official, the State Controller.

What about section 3.5's reference to refusal to enforce a statute?  Could one argue that section 3.5 does not apply to the Proposition 8 setting because Proposition 8 is a state constitutional provision, rather than a statute?  I don't think this argument would work.  First, and most important, it would be odd as a policy matter to favor the enforcement of state statutes over state constitutional provisions.  So the word "statute" here would probably be read to also include state constitutional provisions that are alleged to violate the federal Constitution.

Second, there may be an argument that Governor Brown would be refusing to enforce a regular statute-Proposition 22-were he to order the issuance of same-sex marriage licenses. Proposition 22 is the statute (a statutory initiative known as the Knight initiative) banning same-sex marriage that the California Supreme Court held unenforceable when it ruled in May of 2008 that the state constitution protects same-sex marriage.  But since Proposition 8 amended that part of the California constitution that rendered Proposition 22 unenforceable, perhaps one could contend that Proposition 22 is now a valid statute that would be protected by section 3.5.  A rejoinder to that argument could be that since, under the California Supreme Court's May 2008 decision, the Knight initiative was invalid when it was enacted eight years earlier (and we just didn't know that until 2008), it never was-and is not now-entitled to be considered a valid statutory enactment.  This is convoluted stuff.  And, as is true with the first scenario, all of this would have to be fought out in state court, and that would take time.

Finally, let us return to the distinction between the refusal to enforce a law, and the refusal to defend the law in court.  Whether such a distinction is a sensible one to draw, notice again that section 3.5 speaks only to the former, and does not seem to impose a duty on the Governor (even if he is an agency), or the Attorney General, to defend any measure challenged in court.  So, under Scenario Number 2, imagine that a new lawsuit, a statewide class action consisting of all same-sex couples in the state who desire to get married, is brought to challenge Proposition 8 on federal constitutional grounds (just as the two couples did in Judge Walker's court).  If such a class action were to be brought in federal court, and if the Attorney General and Governor were to decline to defend in that case (and assuming no county clerk could successfully intervene and take a position adverse to the Governor's), a default judgment protecting all same-sex couples would then issue, and Proposition 8 would be a dead letter even if were not repealed at the ballot box.  (It is also possible that such a class action could be brought in state court, alleging that Proposition 8 violates the federal constitution, but since state courts would permit the sponsors to defend the measure on the merits there, any ruling in favor of the plaintiffs would be less certain, and more time-consuming, than a default judgment.)

Thus, if the U.S. Supreme Court finds no sponsor standing in federal court, how broadly available same-sex marriage will be in California might still take some time to sort out.

Cross-posted from Justia's Verdict.

No one knows for sure what the Supreme Court is going to do with Hollingsworth v. Perry, the case (argued late last month) in which two same-sex couples sued in federal court to invalidate California’s Proposition 8, a voter-adopted state constitutional ban on gay marriage.  But many—myself included—think that, among the various scenarios, the most probable outcome (and one that is perhaps more likely than not) is that a majority of Justices will dispose of the case by finding that the Proposition 8 sponsors (also known as the official “proponents” of the measure), the only ones who defended against the challenge, do not enjoy standing in federal court to speak on behalf of the State.  If the sponsors lack standing, there is no valid “case” or “controversy” (terms used in Article III of the U.S. Constitution) in which the Supreme Court could resolve the merits of the plaintiffs’ equal protection and due process challenges.

As I have explained more fully in a number of writings going back a few years (including this one), my reason for doubting the sponsors’ standing—and it differs somewhat from the reasons argued in the amicus brief filed by Professor and former Acting Solicitor General Walter Dellinger, in which he also concludes that the Proposition 8 sponsors lack standing—is that when voters in California passed Proposition 8 in 2008, they could not have in any way be said to have knowingly appointed the sponsors as their agents to represent the State in the event that the Attorney General and Governor fail (as they did, in fact, fail) to defend the enactment if and when it was challenged in federal court.

The Consequences of a Denial of Standing to the Proposition 8 Sponsors:  Common Ground and Divergent Opinions

But if the Court finds no sponsor standing, what happens next?  There seem to be a number of answers that have been offered by various talking heads.  In the space below, the first of a two-part series of columns, I explain, albeit in necessarily abbreviated terms, what I think should and might happen.

For starters, if sponsor standing is found to be lacking, everyone agrees (or certainly ought to agree) that the Ninth Circuit opinion invalidating Proposition 8 on the merits and creating law of the Ninth Circuit that could conceivably affect other states and also other issues in the Circuit would be vacated, that is, figuratively erased.  Beyond that, there is also broad agreement that the two named same-sex couples in the Hollingsworth case who sought marriage licenses from the county clerks in Alameda and Los Angeles counties, respectively, should get their licenses.  But exactly why and how these two named couples would get the relief they seek is where commentators seem to diverge.

My own view is that if the Court finds that the sponsors lack standing to defend Proposition 8, then after the Ninth Circuit ruling is vacated, the case should be sent back (in legal parlance, remanded) to the district court and at that point, the district court order—invalidating Proposition 8 and imposing an injunction against the named defendants—that was issued after Judge Vaughn Walker’s famous trial should also be vacated.  The named plaintiffs would then seek and obtain a victory through a device known as a “default judgment.”  A default judgment is what plaintiffs who have a right to sue (and the plaintiff same-sex couples here clearly did have such a right) get when the only valid defendants—by hypothesis here, the Attorney General and the Governor—“fail to defend.” To those who think Judge Walker’s order and injunction that he already issued on the basis of the trial he conducted should remain intact, I ask:  If Article III standing means anything, how can a trial in which there were valid Article III parties (that is, parties with standing) on only one side of the “v.” resolve the merits of a case?

Why it Matters Whether a Default Judgment is Appropriate

If the named plaintiffs should get their licenses either way, a reader might ask, why does it matter whether we go the default judgment route, rather than simply leaving Judge Walker’s order in place?  There are a few reasons.  First, plaintiffs must request a default judgment, and as far as I have been able to discern at this point (the record is quite voluminous), no request or motion for entry of a default judgment was made in the district court.  (The fact that no one appears to have made any such request is a bit odd, since Judge Walker himself seemed to doubt the sponsors’ Article III standing even as he allowed them to intervene as parties in the case. Given Judge Walker’s doubt about sponsor standing, the plaintiffs should have been asking themselves whether they even needed a trial to occur in order to prevail.  But it also may be that plaintiffs and their counsel wanted a high-visibility trial for reasons that go beyond procuring justice for the named plaintiffs themselves.)  So, to respect legal niceties, plaintiffs should have to go back and seek the default judgment to which they are entitled.

Second, legal niceties matter here because the scope of the injunction (the judicial command) that Judge Walker issued might have been informed by the trial that he (wrongly) held.  Judge Walker issued an injunction that, by its straightforward terms, tells the defendants (the Governor, the Attorney General, and the County Clerks in LA and Alameda counties) not only that the named plaintiffs can be married, but also that they (the defendants) are judicially prohibited from applying Proposition 8 to anyone else.

As Professor Marty Lederman and I and others have pointed out, under the law of the Ninth Circuit (and perhaps also that of the Supreme Court), a district judge has no power, outside of a class action setting, to order relief that goes beyond protecting the named plaintiffs to also protect other would-be plaintiffs, unless full relief cannot be given to the named plaintiffs without also necessarily regulating the defendants’ interactions with other persons.  In the present setting, full relief (i.e., marriage licenses) can be given to the named plaintiffs without ordering the defendants to give licenses to anyone else.

Some have argued that providing full relief to the named plaintiffs requires allowing all same-sex couples in the state to marry, because absent such broad access to same-sex marriage, the named plaintiffs’ marriages would continue to be subject to stigma.  But I don’t think that this stigma argument works, because if it did, then same-sex couples who were already married in California in the summer of 2008 (during the window before Proposition 8 was passed) would have standing in federal court to challenge Proposition 8 on the theory that their marriages, which were not invalidated by Proposition 8, are nonetheless stigmatized unless other same-sex couples can marry too.  And I don’t think that argument would fly.

As Professor Lederman has suggested, Judge Walker’s injunction was seemingly overly broad even assuming that the trial was properly held, and Professor Lederman argues that the way to cure this mistake is to construe the injunction narrowly to apply only to the named plaintiffs, since any injunction broader than that would be impermissible.  Technically, because the words used in Judge Walker’s injunction (and his subsequent denial of a “stay,” or a hold, on his injunction) do not explicitly refer to other same-sex couples beyond the named plaintiffs, we might be able to do what Professor Lederman suggests. But such a reading of the injunction’s plain words seems strained and surely not reflective of Judge Walker’s intent.  Under my approach, no artificial construction of Judge Walker’s order is required, since I think the trial never should have taken place, and plaintiffs need to go back and make a request for a default judgment, after which the judge (Walker’s replacement, since he has retired) can enter a properly limited injunction.  And the appropriateness of a narrow injunction is easier to see after a default judgment than after a trial on the merits.  (As an aside, I do note that after a request for a default is made, a judge can hold a hearing if needed, but I’m not sure that one would be needed here, and I’m certainly not sure that such a hearing would look anything like Walker’s trial.)

Is the Scope of the Trial Court Injunction Appropriate for the Supreme Court to Discuss?

Professor Dellinger, for his part, says the scope of the injunction isn’t validly before the Supreme Court unless and until some valid litigant (i.e., not the sponsors, but rather a valid representative of the State of California) appeals it.  I disagree with this position based on the analysis I’ve just discussed: The impropriety of the trial itself and the judgment to which it led is certainly something that the district court can and should consider on remand if the Supreme Court finds that the sponsors lack Article III standing, and the Supreme Court is well within its authority to give such guidance to the lower courts about what should happen on remand.  But Professor Dellinger and I may have an even deeper divergence of opinion.  Professor Dellinger argues that there is a standing problem in the Hollinger case because the sponsors lack standing, and they are the ones who have tried to invoke the federal court at the Ninth Circuit and Supreme Court levels (having lost in each of the lower courts.)  By contrast, the plaintiffs, who invoked the power of the district court, clearly do have standing, so the district court had a case or controversy before it.

This reasoning is to my mind only partially correct.  The district court did have a case or controversy before it for the limited purpose of granting a default judgment, but not for purposes of holding a trial to adjudicate the merits of the plaintiffs’ claims.  There is always a case or controversy (assuming plaintiffs have standing, and are suing under a federal claim) for purposes of issuing a default judgment; the government or any other proper defendant cannot defeat potentially valid claims by simply not defending against them.  But once the only proper defendants decline to defend, the district court does not have Article III power to do any more.  And it doesn’t matter who was invoking the power of the federal court.

To see this, imagine that the plaintiffs had lost the trial, and had then appealed to the Ninth Circuit, lost on the merits there, and then sought review in the Supreme Court.  In that hypothetical, the party invoking the jurisdiction of each level of the federal judiciary—the same-sex couple plaintiffs—would clearly have standing.  But if the only persons defending were sponsors who lack Article III standing, neither the Ninth Circuit nor the Supreme Court could, in my view, rule on the merits.  (Indeed, when the Supreme Court began its discussion of whether initiative sponsors lack Article III standing in in the 1997 case of Arizonans for Official English v. Arizona, the Court observed that “[s]tanding to sue or defend is an aspect of the case or controversy requirement,” not that standing to invoke the federal courts is an aspect of the case or controversy requirement.)

It seems to me that, notwithstanding some sloppiness here and there by the Court over the years (and no one can draw a straight line through everything the Court has said or done in this realm), if standing doctrine is to have any integrity, what matters for purposes of adjudication on the merits is that there be, at the time the merits adjudication is performed, valid, adverse, Article III-qualified parties on both sides of the “v.,” not just on the side of the “v.” that has invoked the federal judiciary.

In Part Two of this series (currently scheduled to run on this site on April 26, 2013), I will examine what will happen if Judge Walker’s ruling is left intact and is read broadly, rather than narrowly, to apply to couples other than the named plaintiffs. I will also consider what things might look like if, in response to a Supreme Court ruling that the sponsors lack standing, either county clerks themselves or the Governor and Attorney General decide on their own to stop implementing Proposition 8, whether or not any court order tells them they must do that.

By Chris Elmendorf and Doug Spencer. Cross-posted from the Election Law Blog.

During oral argument last week in Shelby County v. Holder, the constitutional challenge to Section 5 of the Voting Rights Act, Chief Justice Roberts asked, “[I]s it the government’s submission that the citizens in the South are more racist than citizens in the North?”  Solicitor General Verrilli responded, “It is not, and I do not know the answer to that . . . .”

This post offers a preliminary answer to the Chief Justice’s question, using recent data.  Our initial results suggest that the coverage formula of Section 5 does a remarkably good job of differentiating states according to the racial attitudes of their nonblack citizens.

There are essentially three schools of thought about how best to measure racial prejudice using survey questions.  Some researchers favor explicit measures of prejudice (“old-fashioned racism” or stereotyping), based on agreement with statements like “blacks are less intelligent than whites” and “blacks are lazy.”  Others favor symbolic measures of prejudice or “racial resentment,” based on questions about affirmative action and whether blacks have gotten “more than they deserve.”  Still others favor measures of implicit or subconscious bias.  For the results reported here we use explicit stereotyping, as it remains disputed whether racial resentment measures capture prejudice as opposed to conservatism, and it is uncertain whether implicit bias predicts political behavior.

We created a binary measure of stereotyping that roughly captures whether a person is more prejudiced toward blacks than is typical of nonblack Americans.  Our data source is the 2008 National Annenberg Election Survey (NAES), which asked non-black respondents to rate their own racial group and blacks in terms of intelligence, trustworthiness, and work effort, on a scale of 0-100.  On average respondents ranked their own group about 15 points above blacks on each trait.  We coded respondents as holding “prejudiced” views with respect to blacks on a particular trait if the difference between their rating of their own racial group and their rating of blacks exceeded the national mean difference for the trait.  To create an overall measure of prejudice for each respondent, we summed the number of traits on which the respondent was more prejudiced than the national mean.  Finally, we converted this sum into a binary variable, coding as “prejudiced overall” those respondents who exceeded the national mean with respect to at least two of the three traits.[1]

To be clear, a respondent whom we have coded as “not prejudiced overall” may well be quite prejudiced.  But the Chief Justice’s question—whether “citizens in the South are more racist than citizens in the North”—is a question about relative prejudice, and this is what we are trying to capture.

We provide two estimates of the proportion of adult, nonblack residents in each state who are “prejudiced overall.”  The first is based on simple disaggregation of the large NAES dataset (N=19,325).  This method should work pretty well for the largest states but may yield unreliable estimates for smaller states, which contribute relatively few respondents to the NAES sample.  For the second estimate we use multilevel regression with post-stratification (MRP), a recently developed statistical technique that has been shown to yield remarkably accurate estimates of state-level public opinion.  We model prejudice as a function of individual-level covariates (sex, race, age, and education) and a set of state-level predictors (black population, percent of blacks in poverty, segregation, and income inequality).

Using either technique we find a strong positive correlation between Section 5 “covered status” and anti-black prejudice, but with MRP the correlation is truly stunning:

The MRP model suggests that the six fully covered states in the South are, by our measure, six of the seven most prejudiced in the nation.  The two fully covered states that rank lower on the list, Arizona and Alaska, are presumably covered for reasons other than discrimination against blacks (anti-Latino discrimination in Arizona, and anti-Native discrimination in Alaska).

We wish to emphasize that these are preliminary results only.  Though our findings are not entirely unexpected, other ways of aggregating the NAES prejudice questions, or of modeling responses, may yield different rankings of the states (to say nothing of other ways of measuring prejudice).  We will present additional results at the Midwest Political Science Association conference in April.

Suffice it to say for now that the coverage formula seems defensible under the standard implicit in the Chief Justice’s questioning.  Or, to borrow a metaphor from Judge Williams of the D.C. Circuit, Congress appears to have “hit the bull’s eye throwing a dart backwards over its shoulder.”

Elmendorf is Professor of Law at UC Davis.  Spencer is a doctoral student in Jurisprudence and Social Policy at UC Berkeley.  Elmendorf contributed to an amicus brief on behalf of the respondents in Shelby County v. Holder.

From Justia's Verdict.

The Supreme Court this week handed down its first (but almost certainly not its last) 5-4 ruling of the Term.  The case, Clapper v. Amnesty International USA, involved a constitutional challenge to a law passed by Congress in 2008 that permits the federal government to undertake additional surveillance and information gathering with respect to persons outside the United States.  Because the five-member Court majority found that the plaintiffs lacked standing under Article III of the Constitution to mount the challenge, the Court never addressed the validity of Congress’s law.  But the case does, as I explain below, afford some insights into the law of standing, which continues to be an important doctrine with which anyone seeking to a raise constitutional challenge must reckon.

The Background of the Case and the Supreme Court’s Reasoning

In 1978, Congress passed the Foreign Surveillance Intelligence Act (FISA) to allow and to regulate certain electronic surveillance activities conducted by the federal government to gather foreign intelligence.  The statute set up certain procedures and certain tribunals through which the federal government has to go in order to be allowed to monitor and intercept electronic communications involving persons outside the United States.  Congress amended the FISA in 2008, adding to it a “new and independent source of intelligence collection authority, beyond that granted in the original FISA.”  The new authority came with limits, however: (1) the government must still obtain approval from a FISA court; (2) it must avoid targeting persons known to be in the U.S.; and (3) it must comply with the Fourth Amendment.

The day the 2008 amendments were made law, a group of plaintiffs filed suit seeking to block one of the new provisions on the ground that it violates the First Amendment, the Fourth Amendment, and various separation-of-powers principles.  The plaintiffs consist of lawyers, labor organizations, media groups and human rights advocates.  They say that they are injured by the 2008 law because their work requires that they undertake sensitive and sometimes private electronic communications with colleagues and other individuals located outside the United States.  The plaintiffs allege that some of the people with whom they need to communicate will likely be the target of federal intelligence-gathering activities under the FISA amendments, and that, as a result, the plaintiffs’ own communications will be improperly monitored or intercepted.  For this reason, plaintiffs say, the new law impedes their ability to do their work.  Indeed, plaintiffs assert, they have already ceased engaging in certain electronic communications because of a reasonable fear that these communications may be surveilled.

The federal district court ruled that the plaintiffs lacked standing to bring the suit.  The United States Court of Appeals for the Second Circuit reversed the district court, concluding that since the plaintiffs had shown an “objectively reasonable likelihood that their communications will be intercepted at some time in the future,” their claims should be adjudicated on the merits.  But five Justices of the Supreme Court disagreed.

Justice Alito, writing for himself, Chief Justice Roberts, and Justices Scalia, Kennedy and Thomas, observed that, to have standing to sue in federal court under Article III of the Constitution, a plaintiff must suffer suffer a concrete and particularized injury that is “actual or imminent” and “fairly traceable” to the challenged action.  To be “actual or imminent,” the majority said, the injury asserted must be “certainly impending.”  On the facts established, the majority reasoned, this standard was not satisfied, because there was too much uncertainty about whether the new provisions of FISA would ever end up subjecting the plaintiffs and their particular communications to any surveillance.  In particular, Justice Alito’s opinion argued, there was uncertainty as to: (1) whether the feds will ever target any of the particular non-U.S. persons with whom the plaintiffs communicate; (2) if the feds do target persons with whom the plaintiffs communicate, whether the feds will invoke the new FISA provisions (as distinguished from other possible legal bases); (3) whether, if the feds do invoke the new law, the FISA court will give its approval; (4) whether, if FISA court approval is given, the feds will succeed in monitoring or intercepting any communications (no mean feat technologically); and (5) whether, if the government does intercept any communications, the plaintiffs will happen to be parties to those particular communications.

Because of this “highly attenuated chain of possibilities,” said the majority, the plaintiffs’ claim that they will be injured because of the new FISA law is too speculative to afford them standing.  And as to the fact that plaintiffs say that they are already changing their practices today because of their non-paranoid fear of surveillance, the Court responded that such decisions were the choice of the plaintiffs themselves, and that they could not “manufacture” an injury that satisfies standing in circumstances where the government itself has not created an injury that is “certainly impending.”

Justice Breyer’s dissent, joined by Justices Ginsburg, Sotomayor and Kagan, argued that the plaintiffs’ injuries are not speculative given what “commonsense inference and ordinary knowledge of human nature tell us will happen.”  In particular, against the backdrop of the government’s track record, and in light of the fact that the government has the motive and (in light of the 2008 revisions) also the means to surveil the very non-U.S. communication partners with whom the plaintiffs communicate (some of whom are suspected of terrorism), the dissent found a “very high likelihood” that the plaintiffs would suffer injury.  And because the future always contains some uncertainty (such that metaphysical certainty cannot be the standard), a high likelihood of injury should satisfy the “certainly impending” or “imminent” standard.  Justice Breyer also asserted that the Court had, in many earlier cases, found standing to exist where the relevant injury was “far less certain” than it is in the present case.

The Lessons About Standing to Be Gleaned From Clapper

Clapper highlights many aspects of modern standing doctrine.  First, standing can be contentious and standing battles often have an ideological element.  Notice, here, that the Court not only divided five to four, but did so on the conventional “conservative/liberal (or moderate)” fault line.  In general, the Justices who tend to be more conservative in their approach to interpreting other aspects of the Constitution are also more conservative in construing the barriers that Article III imposes for people who wish to challenge government action.  By contrast, the less conservative Justices tend to be more generous when it comes to access to federal courts.  (To be sure, because standing doctrine is somewhat manipulable and can be used by various Justices for various reasons, this conservative-liberal breakdown does not always account for votes on standing.)

Second, Clapper illuminates two distinct but sometimes conflated aspects of the “imminent” injury standard.  Some might be inclined to think terms like “imminent” and “impending” are temporal in nature, and require that the alleged injury must be suffered in the immediate future.  But what is really important in standing is not when the injury will be incurred, but whether it will be incurred at all.  (Remember, for instance, the Affordable Care Act case, in which the challenged individual mandate would not take effect until 2014, and yet standing was not a barrier.)  The temporal dimension is not irrelevant; temporal distance can create more uncertainty about whether the alleged harm will in fact ever come about, because the longer the time between the present moment and the alleged moment of actual injury, the greater the opportunity for circumstances to change in a way that avoids the injury.  But the question ultimately is still how likely the injury is to be incurred, taking into account any time lag.  (For example, the fact that Congress could conceivably have repealed the Affordable Care Act after the 2012 election before the individual mandate kicked in did not incline the Court to deny standing in the summer of 2012.)

Third, a Justice’s assessment of uncertainty depends, as Justice Breyer points out, on how the Justice understands what “commonsense inference and ordinary knowledge of human nature tell us [about what] will happen.”  Predictions (and that’s what we’re talking about here) are always based on how one perceives and understands how the world and the actors in it operate.

Fourth, the predictions required in standing analysis are more complicated when they involve the actions of persons other than the plaintiff and the defendant.  In Clapper, for example, we need to predict not only what kinds of communications the plaintiffs actually plan to undertake and how aggressive the government will be in seeking to monitor them, but we also need to predict how permissive the FISA court will be, and how effective the technology experts will be in any surveillance that is authorized.  The presence of these third parties (the courts and the technology intermediaries) allows the various Justices to come out very differently on the bottom-line question of whether plaintiffs will be affected.

Fifth, standing analysis may tend to play out differently in different subject-matter contexts.  Justice Alito pointed out that the Court has “often found a lack of standing in cases in which the Judiciary has been requested to review actions of political branches in the fields of intelligence gathering and foreign affairs.”  By contrast, many of the cases Justice Breyer adduced to show that standing was found even though there seemed to be some uncertainty about future events involved land-use and environmental effects. (For example, in one decision, standing was found to challenge the planned construction of a nuclear power plant, even though the ultimate completion of the plant and its environmental effects were not certain to occur.)

There may be a number of explanations for why standing analysis generates different results in different settings.  Perhaps the disinclination to find standing in foreign affairs cases reflects a kinship between standing doctrine and so-called “political question” doctrine (in which federal courts affirmatively decide to stay out of certain kinds of disputes, leaving them to the political branches, because judicial resolution would create distinctive problems of institutional usurpation, embarrassment, or confusion.)  Foreign affairs effects (unlike environmental effects) are often invoked in “political question” settings.  Or perhaps the ease with which standing can be obtained in land-use and environmental cases reflects the fact that there is a market value attached to real property.  As a result, we might be able to discern present-day injuries from (even uncertain) future events because the mere non-trivial possibility of those events can be shown to have implications for current property valuations.  There is no market for privacy rights the way there is for land; for that reason, it may be harder to convince a court to step in to protect those rights when the threat to them is serious but subject to meaningful uncertainty.

Sixth, Clapper reminds us that sometimes the Court’s denial of standing means that a particular kind of challenge may never be easily resolved by courts on the merits.  Justice Alito’s opinion repeats a line from an earlier case saying that the fact that if plaintiff lacks standing then no one has standing is not a reason to recognize standing.  And although Justice Alito adds that persons who are prosecuted using information gleaned by the 2008 FISA amendments may be able to challenge those new laws down the road, critics of America’s response to terrorism seem to think that such opportunities to have a court rule on the validity of the surveillance are unlikely to materialize.

Finally, Clapper shows that standing doctrine is very soft, and that the Court’s cases cannot easily be harmonized or lined up on any clear spectrum.  As Justice Breyer concedes, “the Court has recognized that the precise boundaries of [standing doctrine] are matters of ‘degree. . . not discernible by any precise test.’”  What this means is that we can continue to expect the Court to use standing as a device to regulate its docket and reach, or avoid, questions on the merits that it would rather, or rather not, decide.  We may see more of that this Term in the same-sex marriage cases, where the specific standing questions are different, but the flexibility of the standing doctrine is similar.

By Prof. Gabriel "Jack" Chin for ACSblog.

Tomorrow, the Court will hear argument in Shelby County, Alabama v. Holder, which raises the question of the continuing validity of the preclearance requirement of Section 5 of the Voting Rights Act.

Under Section 5, electoral changes in covered jurisdictions are suspended until the Attorney General or the U.S. District Court for the District of Columbia preclears them by determining that they have neither the purpose nor effect of denying or abridging the right to vote on account of race or color.  The specific issue is whether circumstances in the covered jurisdictions have changed so dramatically that Section 5 is no longer warranted; the Court suggested as much in their 2009 decision in Northwest Austin Municipal Utility District Number One (NAMUDNO) v. Holder. 

I strongly disagree, and believe that a facial challenge is improper because Section 5 is clearly permissible in federal elections.  As important and ominous as Shelby County is, there is a larger question about the Court’s reasoning which has the potential to undermine many other laws and constitutional principles protecting civil rights. 

The Court’s logic in NAMUDNO seems to be this: There was a problem with discrimination against racial minorities at the ballot box, particularly in certain jurisdictions.  Section 5 and other parts of the Voting Rights Act largely fixed that problem.  Because covered jurisdictions are no longer disproportionately proposing electoral rules or districting maps that have the purpose or effect of disadvantaging minority voters, Section 5 may have outlived its usefulness.  Laws must be necessary and proper to solve problems, not non-problems, or former problems. (Many of these facts are doubtful, but I am concerned here primarily with the Court’s logic).

The Court has made similar arguments with respect to the exclusionary rule, which requires the suppression of evidence seized in violation of the Constitution.  The Court noted that before the exclusionary rule, there was no other realistic alternative to judicial suppression. But now that there is judicial suppression, police agencies train their officers not to illegally search and seize.  Therefore, it is implied, perhaps it is time for the exclusionary rule to go, because the police themselves are training their officers to comply with the law.

The flaw in these arguments is that they do not account for the effects of the laws themselves.  If Section 5 works, the Court should expect it to deter improper electoral changes because they will not be precleared, and thus will never go into effect.  Similarly, an effective exclusionary rule should change police training and policy because police leaders have an interest in teaching officers to develop admissible, as opposed to inadmissible, evidence.  Only if legislators and police are invulnerable to incentives and oblivious to outcomes would they stubbornly adhere to tactics long after they are penalized under law.  

That measures designed to bring about change achieve that change says nothing about whether those measures are no longer necessary.  If burglaries decline for ten years after homeowners install good door and window locks, that does not imply that locks have become superfluous.  If speeds on a road decrease after a speed limit is set and posted, that does not imply that speeds will remain low even if the speed limit were removed.  If laws do not change behavior, there is little point in having them.  If laws do change behavior, that does not necessarily mean that the underlying motivations and values which led to the behavior no longer exist.

Accordingly, the question is not simply whether the law worked, or created incentives to which the lawbreakers responded.  One question is whether the law (or other social forces) has changed public attitudes or conditions on the ground to such a degree that the law is unnecessary.  Another is who gets to decide.     

Section 5’s validity might turn on a prediction about politics -- will jurisdictions which once discriminated leap at the first chance to discriminate again, or will they welcome minority voters with open arms?  The continued existence of racially polarized voting and the political utility to Republicans of suppressing the minority vote -- whether out of malice or simple recognition of how they are likely to cast their ballots -- precludes any confident conclusion that eliminating Section 5 would not revive the practices Section 5 was intended to suppress.  But even if the point is debatable, Congress is in a far better position than is the Court to determine facts, political realities and public attitudes relevant to a prediction about what would happen if Section 5 disappeared.   For this reason, and many others, the Court should defer to the political judgments of the political branches and leave Section 5 as it is.

Cross-posted from SCOTUSblog.

In Padilla v. Kentucky (2010), the Supreme Court in a path-breaking decision held that an ineffective assistance of counsel claim under the Sixth Amendment could be based on the failure to inform a criminal defendant of the immigration consequences of a criminal conviction before entering into a plea agreement.  Earlier this week, in Chaidez v. United States, Justice Kagan, writing for six other Justices, concluded that, under the principles set out in Teague v. Lane (1989), Padilla should not apply retroactively to criminal convictions entered before March 2010.

The petitioner in the case, Roselva Chaidez, entered the United States from Mexico in 1971 and became a lawful permanent resident in 1977.  In connection with an automobile insurance fraud scam in which she had received less than two thousand dollars, she – on advice of her attorney – had pleaded guilty to two counts of mail fraud and was sentenced to probation and to pay restitution.  Her conviction became final in 2004.  According to Chaidez, her attorney never warned her that her conviction could result in her mandatory removal from the country.  In 2009, after Chaidez’s naturalization petition brought her and her conviction to the attention of the federal government, removal proceedings were instituted against her.  Through a writ of coram nobis, Chaidez sought to set aside her conviction.  While the petition was pending, the Court issued its decision in Padilla v. Kentucky.  The Seventh Circuit held in Chaidez’s case that Padilla does not apply to a challenge to a conviction that became final before it was decided.  On Wednesday the Supreme Court agreed.

At the outset, the Court observed that Teague v. Lane “makes the retroactivity of our criminal procedures decisions turn on whether they are novel.”  (emphasis added).  The Court notes that “garden-variety applications of the test in Strickland v. Washington (1984), for assessing claims of ineffective assistance of counsel do not produce new rules.”  However, the decision in Padilla v. Kentucky, in the Court’s view, “did something more” than that.  Before Padilla, the state and lower federal courts almost unanimously concluded that the Sixth Amendment does not require attorneys to advise their clients of a conviction’s collateral consequences, including possible removal from the country.  Padilla rejected that rule.  No precedent dictated the answer.  “Padilla’s holding that the failure to advise about a non-criminal consequence could violate the Sixth Amendment would not have been – in fact, was not – ‘apparent to all reasonable jurists’ prior to our decision. Padilla thus announced a ‘new rule.’”

In the last footnote of the opinion, the majority declined to address two arguments that the Court deemed were not properly raised in the lower courts – “that Teague’s bar on retroactivity does not apply when a petitioner challenges a federal conviction, or at least does not do so when he makes a claim of ineffective assistance.”  These issues may well reappear before the Supreme Court in the near future.

Justice Thomas, who dissented in Padilla, concurred in the judgment, still believing that the case was wrongly decided and, in any event, should not apply to Chaidez’s case.

Justice Sotomayor, joined by Justice Ginsburg, dissented.  She reasoned that, rather than establish a new rule, Padilla “did nothing more than apply the existing rule of Strickland v. Washington (1984),” governing ineffective assistance of counsel, “in a new setting.”

Chaidez is the latest application of the Teague v. Lane retroactivity test.  By most accounts, Padilla represented a significant change in the law.  Consequently, it proved challenging for Chaidez to prevail in showing that, for retroactivity purposes, Padilla did not in fact create a “new” or “novel” rule.  A majority of the Court ruled that the change in the law was sufficiently significant that it should not apply retroactively.

There is little reason to think that Chaidez will have much of an impact on the Court’s retroactivity or immigration jurisprudence.  The Court understood this to be a run-of-the mill application of the retroactivity principles of Teague v. Lane, with the junior Justice assigned the decision.  Moreover, although tangentially involving immigration law, the decision does not meaningfully address any issues of immigration law or change in any way the holding in Padilla v. Kentucky.

At the same time, the Supreme Court’s holding that Padilla v. Kentucky will not apply retroactively will no doubt affect large numbers of plea deals in which the convictions were entered into before March 2010.  The Obama administration has made it a priority to remove “criminal aliens” from the United States and has based many removal actions on convictions more than a few years old.  Ultimately, thousands, if not, tens of thousands, of lawful permanent residents facing removal are likely to be affected by Chaidez and likely to suffer significant hardships if removed from the United States.   Chaidez, for example, has lived in the United States for four decades and has three children and two grandchildren who are U.S. citizens.   Now facing removal, she faces the possibility of being stripped from the only community and family she really has ever known.

From Justia's Verdict.

In about six weeks, the Supreme Court will hear oral argument in two potentially blockbuster same-sex marriage cases.  In one case, Hollingsworth v. Perry, the plaintiffs challenge California’s voter-adopted ban on same-sex marriage (Proposition 8), and in the other, United States v. Windsor, the plaintiffs contest the federal Defense of Marriage Act (DOMA), which prevents any agency of the United States from recognizing same-sex marriage for purposes of federal law, even in instances (such as that presented by Windsor) where the state in which the same-sex couple resides itself recognizes the same-sex marriage.

On the merits, both cases involve complex issues of liberty, equality, and (perhaps) federalism.  Yet both cases also present tricky procedural obstacles that might dissuade (or prevent) the Court from reaching the merits.  In the Proposition 8 case, the key procedural question is whether the sponsors of the Proposition 8 initiative have standing under Article III of the U.S. Constitution to defend the measure against constitutional challenge in federal court where, as here, the state elected officials who would normally be expected to defend state laws (the California Attorney General and Governor) have, in this instance, declined to do so.  I have written extensively before (most recently here) about why, even if in some circumstances initiative sponsors should be conferred standing in federal court, I feel that there are good arguments that the Proposition 8 sponsors were never deputized by the voters of California, and thus should not enjoy federal standing in the present case.  In the space below, I analyze the standing issue presented in the DOMA case.

The Background of the Windsor Case in the Lower Courts

Same-sex couple Edith Windsor and Thea Spyer were married in Canada and then moved to New York, where their marriage was recognized as valid.  After Spyer passed away, Windsor sued the United States in federal district court to challenge the federal estate tax that she owed on account of the federal government’s failure (pursuant to the DOMA) to recognize her marriage under federal law.  (Had the federal government considered her marriage valid, Windsor would have been entitled to the marital exemption to the federal estate tax.)

Not long after the suit was filed, the U.S. Attorney General notified Congress that he and the President had concluded that they agree with the position taken by Ms. Windsor, that DOMA is unconstitutional.  The Attorney General stated that the United States would, however, continue to enforce DOMA until it is repealed or definitively declared invalid by the courts.

Because the Justice Department had made clear its intent not to defend DOMA in court challenges (even as it continues to enforce the terms of DOMA), an organization known as the Bipartisan Legal Advisory Group of the House of Representatives (BLAG) sought to intervene as a defendant in the Windsor case in order to present a defense, on behalf of the DOMA and the House, to Windsor’s challenge.  The district court ultimately allowed BLAG to intervene in the case, and then ruled in Windsor’s favor on the merits.  The Department of Justice and BLAG both appealed to the United States Court of Appeals for the Second Circuit, although the DOJ continued to assert its agreement with Ms. Windsor on the merits of her challenge.  The Second Circuit affirmed the district court on the merits, and the Department of Justice asked the Supreme Court to take review.  The high Court granted review, but in so doing asked for briefing on whether BLAG is a proper party in the case under Article III of the federal Constitution and (if not) whether the agreement between the plaintiff and the United States government on the merits of the lawsuit prevents the Court from rendering an opinion on those merits.  The Court then appointed law professor Vicki Jackson of Harvard to provide briefing on these questions of standing and justiciability.

An Analysis of the Arguments Advanced in Professor Jackson’s Brief

Professor Jackson filed her brief a few weeks ago, in which she argued that BLAG does not enjoy standing in federal court to defend the DOMA, and that in the absence of BLAG, the agreement between the U.S. government and Windsor should prevent or disincline the Court to address the merits of the dispute.  (Of course, BLAG will respond with its own brief.)

As to the crucial question of BLAG’s ability to defend the DOMA when the executive branch won’t, Professor Jackson correctly identifies the 1983 Supreme Court case of INS v. Chadha as a key precedent in the area.  There, the Court permitted the House and Senate to defend the federal statutory device known as the “legislative veto” when the federal executive branch refused to defend the device against constitutional challenge by a private person.  A legislative veto is a mechanism by which one or both houses of Congress can, without involving the President, effectively block executive branch action after it has been taken but before it has gone into effect.  In Chadha, the challenger and the federal executive branch both believed that the legislative veto gave Congress authority beyond what the Constitution conferred, and in so doing violated the principle of separation of powers.  (On the merits, the Supreme Court agreed with the challenger and the executive branch, and invalidated the legislative veto in question there.)

Professor Jackson argues that the ability of the House and Senate to defend in Chadha is distinguishable from BLAG’s ability to defend in the DOMA case, for three reasons:  (1) the statute being challenged in Chadha was one that conferred on each house of Congress particular powers (the ability to veto executive actions), and so Congress had a “special legislative prerogative” in defending the legislative veto, above and beyond the interest Congress has (presented by BLAG) in defending all congressional enactments; (2) both Houses of Congress participated in Chadha, whereas BLAG, at most, represents only the House of Representatives; and (3) in Chadha, pursuant to a federal statute, each house of Congress explicitly authored its chamber’s participation in the lawsuit, whereas there is no federal statute authorizing the House to participate, and the House of Representatives itself did not explicitly authorize BLAG to represent it until after the lower court had already processed Ms. Windsor’s case.

The first distinction is quite interesting.  On one hand, the executive branch is in a particularly awkward position when it is asked to defend a statute that is not only arguably unconstitutional, but unconstitutional precisely because it invades the province of the executive branch vis-à-vis the legislature.  In such circumstances where there is an institutional conflict of interest, it may be hard for the executive branch to give a robust defense, and we may not want to encourage the executive branch to defend the statute in a half-hearted way, but instead encourage (by allowing Congress to defend itself) the executive branch to stay out of the dispute altogether.  (Notice that for these purposes, I am refining Professor Jackson’s first proffered distinction to focus not on the aggrandizement of congressional powers, but rather on the invasion of the executive’s powers.  If Congress, for instance, tried to assert new powers to veto actions of the judiciary, the executive branch would not be placed in an awkward position, and so I think that the justification for congressional standing would be weaker than in Chadha, even though both settings might technically satisfy Professor Jackson’s criterion of the presence of a special legislative prerogative.)

On the other hand, Congress’ interest in having its laws defended certainly is not limited to those laws that specially empower Congress; many statutes that regulate or empower persons outside of Congress are very important to the congressional agenda as well.  Moreover, four years after Chadha—in a case in which the Supreme Court held that a state legislature enjoyed standing in federal court to defend a measure when the state executive branch declined to do so, Karcher v. May—the statute at issue had nothing to do with expanding legislative powers, but instead required public schools to observe a moment of silence (which challengers argued violated the Establishment Clause of the First Amendment).

Professor Jackson tries to deal with Karcher on this point by asserting that because federal separation of powers principles “do not necessarily apply to the organization of state governments, judicially cognizable injuries for congressional and state legislators may differ.”  It is true that state constitutions may permit state legislatures to do things that Congress cannot, but if the question is—as Professor Jackson rightly says it is—whether a legislature has any distinct interest that it is allowed to vindicate in federal court, Karcher does make it harder, though perhaps not impossible, for the Court to draw the first distinction that Professor Jackson offers.

Professor Jackson’s second and third bases for distinguishing Chadha are cleaner, I think.  The second distinction—the need for both Houses of Congress, and not just one, to be involved before legislative standing is allowed—does draw support from the facts of Chadha (and those of Karcher, for that matter, where the leaders of both chambers of the New Jersey legislature intervened to defend), and also from the fact that Article I of the U.S. Constitution vests legislative power in a single “Congress,” to be comprised of two chambers.  In the DOMA context, the House has no greater interest in defending the measure than does the Senate, so that the Senate’s absence from the litigation arguably undermines the House’s claim to judicial redress.

And as to the third basis for distinguishing Chadha—the need for actual authorization of a legislative chamber before anyone can assert federal standing on its behalf—Chadha is also quite different from the present situation, because both the House and Senate in Chadha explicitly authorized participation in the lawsuit.  Moreover, although Professor Jackson’s brief doesn’t discuss Karcher in this regard, Karcher (even though it undermines Professor Jackson’s first distinction) is the best support for her third distinction—that formal authorization is required.  In refuting the argument that leaders of the New Jersey legislature could not assert legislative standing because they were not authorized to do so, the Court in Karcher explicitly discussed how New Jersey law empowered the leader of each chamber to represent the body in court, and pointed out that the participation of the legislative leaders in that case was premised on that legislative authorization.  Thus, in perhaps what is the Court’s most extensive discussion of legislative body standing (more elaborate than anything the Court said in Chadha), the Court indicated the need for authorization by the body in question for that body to participate.  This is particularly important, because the Court has often observed that what it has done with regard to justiciability issues in past cases is much less important than what it has said when it was explicitly addressing such issues.

As an aside, I note that in concluding in Karcher that New Jersey law authorized the legislature to participate when the executive branch isn’t defending, the Court cited a New Jersey case that really didn’t support the U.S. Supreme Court’s conclusion: the New Jersey case that was cited involved the legislature participating alongside the executive branch, not in lieu of it, in defending a state statute.  But even if the U.S. Supreme Court’s reading of New Jersey law was flawed, the important point here is the Court’s insistence that there be legislative authorization before legislative body standing can be permitted.  And, in the present case, as Professor Jackson points out, the House’s formal approval of BLAG’s representation of it did not come until very late in the day—indeed, after the Supreme Court had granted cert.  Moreover, there is no federal statute, akin to the state law the Court found to be present in Karcher, that authorizes the House to be involved at all.

How Will the Court Resolve the Issue of BLAG’s Standing or Lack Thereof?

 None of this is to say Professor Jackson’s arguments will necessarily carry the day.  As noted above, BLAG will have a chance to present its counterarguments.  Moreover, because the Supreme Court itself hasn’t been careful and/or fully explanatory in cases in which it has permitted individuals outside the executive branch to defend congressional statutes when the executive branch won’t, the Court is writing on a slate with some support on both sides of the ledger, and that gives it some wiggle room to support a decision either way.

 For example, in Dickerson v. U.S., the federal executive branch and the criminal defendant both agreed that the statute on which the Court of Appeals had relied was unconstitutional, and the judgment below should be reversed.  And yet the Supreme Court nonetheless reached the merits of the case, by appointing a law professor to write a brief defending the statute.  It is true, as Professor Jackson points out, that Dickerson (unlike Windsor) was not a case in which the United States sought Supreme Court review, but the fact remains that the Supreme Court in Dickerson resolved the merits of the dispute, without ever explaining why a “case or controversy” within the meaning of Article III was in existence at the time of its ruling, in light of the fact that both parties agreed that the law was unconstitutional and that the result below was wrong.

Another case that creates additional murkiness is the 2011 decision in Camreta v. Greene, in which the Court said that individual executive branch government officials had standing to appeal a decision by a lower court that had ruled in their favor on a damage claim against them, but that had also found their actions unconstitutional, because the officials had a cognizable interest in being able to perform their public duties unburdened by a wrongheaded judicial ruling.  If individual executive branch officials (as distinguished from the executive branch representing the government more generally) have such an interest in being able to do their jobs the way that they want to and think is permissible, then why shouldn’t individual legislators or legislative chambers have the same interest?  Members of Congress want to be able to do their jobs—vote on bills—without being affected by wrongheaded judicial rulings, and yet individual members of legislatures clearly have no standing.  In short, the Court has not been clear or coherent in this corner of standing law, any more than it has in the overall doctrine of Article III standing. (Indeed, the Court has never adequately explained what the specific objectives of standing and other justiciability doctrines should be, and instead has offered only vague invocations of separation of powers.)

Still, this softness in standing doctrine may be something that the Court can use to its advantage.  My guess is that the Court is not particularly eager to take up the merits of the DOMA case and has granted review only because a few federal appeals courts had held the DOMA invalid. By contrast, had the lower courts upheld the DOMA, I would have been surprised to see the Court grant review.  The Court’s disinclination to resolve the DOMA merits may stem in part from the fact that—unless the Court were to strike down the DOMA purely on federalism grounds, as the First Circuit seemed to do—any ruling either upholding or invalidating the DOMA would likely have significant analytic implications for the laws in all the dozens of states that ban same-sex marriages.  And the Court may not want to resolve the legality of all these state laws until more states come to rest on this question.  (That is why the Court may be similarly hesitant to resolve the merits of the Proposition 8 case.)  For these reasons, I won’t be surprised if the Court (or a large enough number of individual Justices on the Court) effectively defers these cases and avoids issuing dispositive rulings on the merits using the flexible justiciability doctrine.  Such a move may buy the Court only a few years, but on this social question in particular, the pace of change across the national landscape has been remarkably rapid.

Cross-posted from Justia's Verdict.

One of the most closely watched cases—if not the most closely watched case—on this year’s Supreme Court docket is the challenge to the University of Texas’ race-based affirmative action program, Fisher v. University of Texas.  In Fisher, the Court will decide whether the Constitution leaves any room for public universities to use the race of individual student applicants in the admissions process. To put the point more technically, the Court will decide whether the “strict judicial scrutiny” applied to such programs is always fatal or, instead, allows a narrow space for public institutions to undertake such programs in order to enhance the racial diversity of the student body.

Assuming that the Court does not entirely foreclose race-based affirmative action in Fisher (and, as I explained in an earlier column, Justice Anthony Kennedy, whose vote will probably be dispositive, is unlikely to go that far), the Court will then likely have to take up another affirmative action case, this one recently decided by the Sixth Circuit Court of Appeals sitting en banc.

The Sixth Circuit case, Coalition to Defend Affirmative Action v. Regents of the University of Michigan, focuses not on whether a state may permissibly make use of race-based programs, but rather (somewhat non-obviously) on how a state that tries to abolish affirmative action may, in doing so, violate the Constitution.

The Background of Michigan’s Proposal 2, and the Sixth Circuit’s Coalition to Defend Affirmative Action Case

The Sixth Circuit’s en banc decision, handed down about a week after last month’s election, invalidated Proposal 2, a voter-initiated amendment to the Michigan Constitution.  Proposal 2, adopted six years ago, was itself seemingly prompted by the Supreme Court’s 2003 ruling in Grutter v. Bollinger.  In that case, involving a race-based admissions program used by the University of Michigan law school, the Court, by a 5-4 vote, held that although a state’s use of race to classify individuals is “suspect” and triggers “strict judicial scrutiny” under the Equal Protection Clause of the Fourteenth Amendment, a narrowly tailored plan in which the race of higher education applicants is considered alongside numerous other factors, in order to admit a critical mass of minority students, is a permissible way to accomplish the compelling government interest of ensuring a diverse law school student body.

Proposal 2 responded to Grutter by amending the Michigan Constitution to completely forbid Michigan’s public colleges and universities from granting “preferential treatment to[] any individual or group on the basis of race, sex, color, ethnicity or national origin.” Proposal 2 thus attempted to close, as a matter of state constitutional law, the small window of federally permissible race-based affirmative action that had been identified in Grutter.  The 8-7 en banc ruling by the Sixth Circuit (following up on a 2-1 ruling by a three-judge panel of the same court earlier this year), reflects an attempt to keep that window open, at least for the moment.

To understand the Sixth Circuit case and the issues it raises, let us start by remembering that most race-based affirmative action programs are in no way required by the Constitution—and indeed are, as noted above, assessed by the courts under a stringent standard dictated by the Fourteenth Amendment.  The programs at issue, designed to diversify public institutions (and also perhaps to provide some remedy for past discrimination against racial minorities), are voluntary, in that nothing in the federal Constitution requires their existence.  How then,  readers may wonder, can their abolition be even arguably problematic under the federal Constitution?

The answer, derived from a group of Supreme Court cases decided a generation ago, lies in the fact that sometimes programs (like affirmative action) that benefit minorities are abolished in a way that leaves all programs that benefit other groups untouched, and that makes reenactment of the programs that minorities prefer especially difficult.  And when minorities are subjected to greater political obstacles in the adoption (or readoption) of the programs they might support than are other groups, such disparate political-process treatment, said the Supreme Court, raises equal protection problems.

Consider, for example, the 1969 Supreme Court case of Hunter v. Erickson.  In Hunter, the people of Akron, Ohio—responding to an ordinance that prohibited racial discrimination in housing that had been enacted by the City Council—amended the city charter to prevent the implementation of any such ordinance that had failed to gain the express approval of a majority of Akron voters.

The amended charter defined the ordinances that were to be subject to the newly created popular-approval requirement as those laws regulating real estate transactions “on the basis of race, color, religion, national origin or ancestry . . . .”  The charter amendment, the Court pointed out, “not only suspended the operation of the existing ordinance forbidding housing discrimination, but also required approval of the electors before any future [housing discrimination] ordinance could take effect.”

By an 8-1 margin, the Justices struck down the charter amendment as a violation of equal protection. The Court declined to rest its decision on a finding of racist intent on the part of voters (which today would be a conventional rationale for invalidating laws that seem to reflect invidious attitudes towards racial minorities). Instead, the Court nullified the law because it effectively drew a “racial classification [which] treat[ed] racial housing matters differently [and less favorably]” than other matters.

The Court found it crucial that the law, while neutral on its face in the sense that it drew no distinctions among racial and religious groups, would nonetheless uniquely disadvantage the beneficiaries of antidiscrimination laws—racial minorities—by forcing such laws to run a legislative gauntlet of popular approval that other laws, and thus other interest groups, were spared.

A dozen years later, in Washington v. Seattle School District No. 1, the Court applied and extended Hunter in a way that has direct implications for the Sixth Circuit’s treatment of Proposal 2. The essential background of the Seattle case is this: In order to cure widespread de facto racial segregation in Seattle-area schools, Seattle School District No. 1 adopted a voluntary integration plan that extensively used pupil reassignment and busing to eliminate one-race schools.  The Seattle program, in turn, prompted the people of Washington State to enact Initiative 350.

On its face, Initiative 350 provided broadly that “no school board . . . shall directly or indirectly require any student to attend a school other than [the geographically closest school].” The initiative, however, then set out so many exceptions to this prohibition that the effect on local school boards was to bar them from ordering reassignment or busing for the purpose of racial integration, but to permit them to order reassignment or busing for all other educationally valid reasons (sibling attendance, access to particular educational programs, etc).

By a 5-4 vote, the Court struck down the plebiscite. As in Hunter, the Court declined to rest its holding on a finding of invidious intent on the part of the electorate. Instead, the Court invalidated Initiative 350 because it singled out racial busing—a program of particular importance to racial minorities—and moved it from the control of local decision-making bodies to central management at the statewide level, where minorities were less likely to enjoy democratic success; if racial busing—but racial busing alone—were ever to be reenacted anywhere in the state, its proponents would need to lobby and win at the state, rather than the local school district, level. This selective and unfavorable treatment of public programs that were distinctively beneficial to minorities, the Court held, denied such minorities the equal protection right to “full participation in the political life of the community.”

In both of these cases, the Supreme Court applied (with varying degrees of clarity) a two-pronged test: First, someone who challenges a given law must show that the law in question is “racial” or “race-based” in “character,” in that it singles out for special treatment issues that are particularly associated with minority interests.

Second, the challenger must show that the law imposes an unfair political-process burden with regard to these “minority issues” by entrenching their unfavorable resolution at a level, or in a process, of state government where it is distinctively hard for minorities to prevail.

Strict scrutiny is triggered only if the challenger satisfies both parts of the test. A law that imposes special political-process burdens on classes that are not associated with race does not directly implicate the cases.  Similarly, a law that deals explicitly with “racial” issues but does not impose any entrenching political process burdens—for example, a law that simply repeals pro-minority policies at the same level of government at which they were originally enacted—is also unproblematic.

The Sixth Circuit’s Application of the Hunter-Seattle Doctrine

Utilizing this two-part test, the Sixth Circuit concluded that Proposal 2 was constitutionally flawed. First, it held that the measure was racial in character, in that it dealt specially with an issue—race-based affirmative action—that is of distinctive interest and benefit to racial minorities. Indeed, the racial busing programs in the Seattle case were just one type of “voluntary” race-based affirmative action; if elimination of those programs affected minorities especially, then elimination of the broader category of which they were a part would seem to do so, as well.

Moving to the second part of the test, the Sixth Circuit held that Proposal 2 dealt with this racial issue by entrenching a policy that was unfavorable to minorities at a level of government—that of the state constitution—at which minorities are less likely to succeed than they are at lower levels, such as local government or university administration. Although Michigan is free to repeal affirmative-action programs, the Sixth Circuit suggested, it cannot repeal such programs at a level higher than the one at which those programs were initially adopted, just as the State of Washington could not repeal racial busing at the statewide level, rather than the local level.

As the Sixth Circuit explained in its opening sentences, “[a] student seeking to have her family’s alumni connections considered in her applications to one of Michigan’s . . . public universities could do one of four things to have the school adopt a legacy-conscious admissions policy:  she could lobby the admissions committee, she could petition the leadership of the university, she could seek to influence the school’s governing board, or, as a measure of last resort, she could initiate a statewide campaign to alter the state’s constitution.  The same cannot be said for a black student seeking adoption of a constitutionally permissible race-conscious admissions policy.  That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution—a lengthy, expensive and arduous process—to repeal the consequences of Proposal 2.  The existence of such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.”

What Is Likely to Happen in the Supreme Court

The Sixth Circuit’s reasoning is careful, and its result is defensible under current law; there really is a powerful logical sense in which the structure and reasoning of the Seattle case applies with full force to doom Proposal 2.  But the case will almost certainly be presented to the Supreme Court, and unless the Court eliminates race-based affirmative action entirely in Fisher, the Court will most probably grant review.  The Sixth Circuit en banc ruling openly disagrees with a Ninth Circuit case from the 1990s in which that court upheld California’s state- constitutional ban on race-based affirmative action (Proposition 209) in the face of a Hunter-Seattle challenge.  Many observers (myself included) thought that the Ninth Circuit’s reasoning did not convincingly distinguish the Seattle case or otherwise explain why that case did not control, but that is neither here nor there now that there is a sharp circuit conflict that the Supreme Court will likely feel the need to resolve.

And when the Court takes the Proposal 2 case, I would expect Proposal 2 to be upheld, perhaps overwhelmingly, by the Court.  Why?  For starters, none of the Justices who were on the Court at the time of the Seattle case are still there. Stare decisis applies, to be sure, but stare decisis may tend to have more weight when some member of the Court who voted in the majority in the original case is present to defend it when the Court revisits the matter.  It also bears noting that the “liberals” on the Court today (e.g., Ruth Bader Ginsburg, Steve Breyer, Elena Kagan) are not nearly so liberal as the liberals who were on the Court in the early 1980s (e.g., William Brennan, Thurgood Marshall).  (We saw some evidence of that last Term, in which Justices Breyer and Kagan joined in the 7-2 invalidation of the Medicaid spending conditions that were at issue in the Obamacare case.)

Not only has the Court’s personnel evolved; so has its doctrine.  The Seattle case and its underlying reasoning would not appear to reflect current thinking at the high Court. Over the past twenty years, City of Richmond v. J.A. Croson (an affirmative action case involving the City of Richmond) and its progeny have justified strict scrutiny for purportedly “benign” race-conscious programs by emphasizing (among other things) certain costs that affirmative action programs threaten to impose on minorities (whether uniquely or along with others).

These cases reflect an equal protection doctrine that embraces formally symmetrical rules governing members of all races, and the cases seemingly downplay the significance of traditional contextual concerns, such as the political powerlessness or historical oppression of racial minorities in particular.  The “feel” of these recent decisions thus diverges from the more nuanced and asymmetrical “feel” of Hunter and Seattle. It is for that reason that I have elsewhere written that Hunter and Seattle may not “make[] sense in today’s world.”

Of particular relevance, the Court has observed in recent decades that race-based affirmative action programs threaten to embrace and “foster harmful and divisive stereotypes,” which might “balkanize us into competing racial factions.” Proposal 2, its supporters would thus contend, does not frustrate valued minority interests. Rather, the Initiative simply moves Michigan law into line with the Supreme Court’s current disparaging attitude toward affirmative action programs. Another way of making the point is to observe that Grutter (the 2003 Michigan law school case) is the exceptional result over the last two decades; most of the time it has visited these issues, the Court has invalidated racial affirmative action, or at least urged lower courts to do so.

Finally, the societal backdrop against which the Proposal 2 case will be heard is very different from that against which the Seattle and Hunter cases arose. In those cases, the Justices in the majority may very well have smelled a rat—in the form of an evil racist motive on the part of the voters—but were too genteel to say so explicitly.

Indeed, there may be many cases in many areas of constitutional law that are, in fact, driven by unstated intuitions harbored by the Justices about impermissible legislative intent.

For example, the Court’s invalidation on federalism grounds of the so-called “Gun Free Schools Zone Act” and the “Violence Against Women Act” in the Lopez (1995) and Morrison (2000) cases, respectively, may have been partially attributable to the Court’s (unarticulated) sense that Congress was not sincerely motivated by the commercial/economic implications that these laws had, and so could not properly rely for their defense on the Commerce Clause.  (For many of those of us who taught and studied the Obamacare case, this aspect made that case—which focused on a policy choice that was sincerely motivated in significant part by economic aspirations—very different from these earlier laws that the Court had struck down.)  But for complicated reasons, the Court may not always be open about the extent to which improper legislative intent is influencing its rulings.

In any event, in Twenty-First Century Michigan, the Court may infer racist intent from Proposal 2 far less readily than it may have from a state’s ban on racial busing over 30 years ago. One possible lesson that may emerge after the Supreme Court resolved Proposal 2 is that sometimes, grounding a decision in invidious intent directly—insulting though it may seem to the polity that is rebuffed—may reduce the doctrinal complexities that are caused by more elaborate, but less intuitive, theoretical explanations of the kind offered in the Seattle case.