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May 19, 2017

Guest Blogging on Concurring Opinions about Whiteness, Class, Rurality

I've been guest blogging for the past few weeks over at Concurring Opinions and invite you over to that blog, on "the law, the universe, and everything" to see what I've been writing.  I've done a four-installment review/commentary on J.D. Vance's Hillbilly Elegy:  A Memoir of a Family and Culture in Crisis.  Spoiler Alert:  I'm not a big fan but, in the end, suggest that the book can help law profs better understand the low-income white students who (thankfully, yes, thankfully!) show up in our classrooms from time to time.  My posts are:

On Donald Trump, J.D. Vance, and the White Working Class

Hillbilly Elegy as Rorschach Test

The "Shock and Awe" Response to Hillbilly Elegy:  Pondering the Role of Race

On Ree Dolly, J.D. Vance and Empathy for Low-Income Whites (or, What Hillbilly Elegy is Good for)

I've also done a bit of writing about rurality, with these posts:

Rurality and Government Retreat

Local Journalism as Antidote to Echo Chambers and Fake News

Also related to rurality are these posts about spatiality and abortion access. 

Did You Hear the One About the Alaska Legislator Who Said ... 

Sanger's Tour de Force on Abortion (with a Blind Spot for Geography)

Carol Sanger of Columbia Law responded to my post about her new book, About Abortion:  Terminating Pregnancy in the 21st Century, here.  I love the fact she says I get the "last word" in our exchange over the significance of geography.

I expect to post another item or two before my term as a guest blogger expires in about a week. 

December 19, 2014

The Year in Constitutional Review: Our Top 5 Constitutional Developments of 2014 (And None of Them Is a Supreme Court Decision!)

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

As 2014 draws to a close, we thought it appropriate to reflect on some of the most significant constitutional developments of the past year. Recognizing that any short-list requires difficult choices, we present our catalog of five noteworthy constitutional events or trends (in no specific order) below. Most interestingly, none of the five involves a particular 2014 ruling from the Supreme Court; instead, the list shows that other institutional actors (sometimes feeding off what the Court has done in the past and often acting completely independently from the Court) are crucial in giving meaning to the Constitution.

#1. President Obama's Announcement of Immigration Enforcement (or non-Enforcement) Priorities

One of the biggest constitutional changes over the last century has surely been the rise in power and prominence of the presidency. The President and his executive branch have grown in influence and stature for a number of reasons. One is the modern need (in a world of increasing economic complexity and international linkages) for the federal government to make decisions quickly, decisively, and based on specialized expertise (as in the Great Depression) and sometimes making use of information that cannot be made fully public (as in the War on Terror). Another is the fact that, although the electoral college is still part of our constitutional fabric, we have moved in the direction of popular election of the President, such that he garners far more votes nationwide than does any other elected official, and thus has a special claim to national electoral legitimacy-unlike that of even the Speaker of the House and the Senate Majority leader, the two elected leaders of Congress.

Many people embrace broadened Presidential authority, and many lament it. Some folks seem to have evolved in this regard. An example of such evolution might be Chief Justice John Roberts, who seemed to advocate for broad executive powers as a young government lawyer but who has recently bemoaned the fact that "the Framers could hardly have envisioned today's vast and varied federal bureaucracy and the authority administrative agencies now hold over our economic, social and political activities." But love it or hate it, broad executive discretion about whether and how to enforce laws is part of the federal constitutional landscape. And President Obama's recent announcement removing the threat of deportation for four million or so persons who entered or stayed in the United States in violation of immigration laws is a good example. Drawing on his key role in foreign affairs and law enforcement, and reminding the American people that he was reelected in part to manage the immigration problem (thus playing on both the reasons for presidential ascension mentioned above), Mr. Obama laid out his plans for how best to implement immigration laws in the near term. His announcement was a reminder of how, in the normal run of things, the President makes a lot of important decisions over which the Supreme Court may never have a say. (There have been lawsuits filed that test the President's actions here, and lower court judges are likely to express a range of opinions on the matter, but it remains unclear how the lower federal courts will ultimately adjudicate this issue and whether the Supreme Court will wade into this thicket.)

#2. The Events in Ferguson and NYC Regarding Police Actions Toward African American Men

A second set of events, involving local government rather than the federal government, raises important normative questions about race relations in the United States and public policy questions about the best way both to avoid these tragedies and to deal with them when they occur. We speak here, of course, of recent events in Ferguson, Missouri, and in New York City involving the killing of unarmed African Americans by police officers and the failure of grand juries to indict the officers involved. These police actions and grand jury decisions, like President Obama's immigration announcement, remind us of how powerful a device executive discretion is within our constitutional system.

But these episodes also remind us of another important constitutional theme. The 14th Amendment proclaims that "No State shall . . . deny to any person the equal protection of the laws." Surely, this provision requires the equal treatment of black and white Americans in the criminal justice system. If the equal protection of the laws means anything, it must mean that the use of force by police officers against persons alleged to violate the law cannot vary depending on the race of the perpetrator. Similarly, equal protection must require that prosecutors and grand juries ignore the race of both the police officer and the victim of the officer's conduct in determining whether the officer's use of force has violated the law.

Yet the Ferguson and New York City events reveal how little bite this constitutional guarantee has when the law gives government actors substantial, unguided discretion in performing their duties. Police officers have considerable discretion in determining whether and how much force should be used in the performance of their duties. Prosecutors have enormous discretion in deciding whether or not to bring charges to a grand jury and in determining how they will conduct the grand jury proceeding. Grand juries also have tremendous discretion. They can decide to indict a "ham sandwich," as the saying goes, or they can decide not to indict a police officer who has choked someone to death.

Because, in circumstances involving official discretion, it is often very difficult to determine the extent to which race influenced state action, the constitutional guarantee of equal protection has little ability to control such decision making. Perhaps the Constitution's primary and most effective role in these events is protecting the rights of individuals and groups to protest what they see as unsanctioned violations of the equal protection of the laws.

#3. Same-Sex Marriage in the Lower Courts

Equality was a theme not just in the Ferguson and New York controversies, but also in the treatment of same-sex marriage by the lower courts this year. Last year, in United States v. Windsor, the Supreme Court teed up but did not resolve the question of whether states were prohibited by the Fourteenth Amendment from treating same-sex marriages differently from opposite-sex marriages. And the lower federal courts have taken up that question in earnest ever since. Until the Sixth Circuit's decision to uphold same-sex marriage bans in four states this fall broke the momentum, same-sex marriage advocates had achieved an overwhelming number of lower court victories; four U.S. Courts of Appeals and over twenty federal district courts had struck down state laws discriminating against same-sex marriage. Indeed, until the Sixth Circuit's ruling by a divided three-judge panel in November, many commentators had concluded that the Supreme Court would not even take a marriage equality case anytime soon because the issue had essentially been resolved by the lower courts. Many of the lower court rulings took their cue from Windsor, of course, and now that the Sixth Circuit has created a split the Supreme Court will likely weigh in relatively soon-so no one is arguing the Supreme Court is irrelevant in this debate-but lower courts have definitely framed the issue and developed competing arguments in a way that makes it much harder for the Supreme Court to reject the right of same-sex couples to marry. For the marital equality movement, 2014 was the year of the lower courts.

# 4. Abortion Rights

The past year saw states continuing the recent trend of adopting and defending significant regulations of abortion services and access. The regulations vary in their content. Several states have enacted statutes (some of which are subject to lower court injunctions) that ban an abortion 20 weeks after fertilization occurs or at an even earlier time during the gestation period. Other regulations restrict the provision of medication used to induce an abortion. Other laws, responding to the new health care framework created by the Affordable Care Act, prohibit insurance offered through the Act's exchanges from covering abortions. Yet other laws regulate clinics that provide abortion services by requiring them to comply with the building, equipment, and staffing standards applicable to an ambulatory surgical center or a hospital. They also require physicians performing abortions to have admitting privileges at a local hospital. The lower courts are continually reviewing the constitutionality of many of these regulations, but it is (aggressive) state legislatures that are driving this issue right now.

Certainly, the need for greater clarity in this area of the law is obvious. Under the doctrine initially evolving from Roe v. Wade, the Court applied strict scrutiny review to pre-viability abortion regulations that ostensibly furthered some important state interest, such as promoting the health of the mother, but also increased the cost of abortions or otherwise limited access to providers. Under this rigorous standard of review, a state had to demonstrate that its regulations furthered a compelling state interest and that the state adopted the least restrictive means to further its objectives. This two- pronged approach required courts to balance the effectiveness of a state's regulations against the burden the law imposed on the right to have an abortion.

In Planned Parenthood v. Casey, however, the Court collapsed the two-pronged approach used in prior cases and adopted a unitary standard. All pre-viability abortion regulations are now constitutionally permissible as long as they do not have "the purpose or effect of imposing an undue burden on women seeking abortion." This standard focuses on the magnitude of the burden, the percentage of women seeking abortions who will experience that burden, and whether the regulation serves some purpose other than the goal of inhibiting access to abortion services. The Court's application of this standard to various regulations in the Casey case itself has mystified both constitutional law scholars and lower courts. The number and highly restrictive nature of new abortion regulations may require Supreme Court intervention and clarification of this standard in the near future.

#5. The 2014 Congressional Election

Although we have highlighted the way institutions other than the Supreme Court (e.g., the President, local governments, lower courts, state legislatures) have helped shape the meaning of the Constitution in 2014, we would never deny the centrality of the Court itself in constitutional interpretation. And yet we must remember that the Court is not a static institution, but rather one whose membership and decisions change over time. So our final candidate for important constitutional developments of the year is the congressional election in November that saw the Republicans gain solid control of the U.S. Senate. Because replacing departing Justices with new members is the single most important way the Constitution has been kept responsive to the values of the people, decisions by the American electorate about who shall be the President (and nominate new members to the Court) and who shall control the Senate (and decide whether to confirm presidential nominations) are quintessentially important constitutional events. Regardless of whether a Democrat or Republican wins the White House in 2016, Republican control of the Senate for the foreseeable future is likely to influence the kind of persons appointed to the (closely divided) Court in the coming years, which in turn is likely to affect how the Court rules in many controversial constitutional areas. It is fitting, even as it is sometimes overlooked, that We the People remain the most important institutional actors in giving content to our basic government charter.

December 20, 2013

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

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

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

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

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

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

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

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

Formal Neutrality and Disparate or Discriminatory Effect

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

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

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

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

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

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

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

The Problems of Subjectivity and Disharmony With Other Constitutional Areas

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

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

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

Conundrums Within Speech Doctrine That a Disparate Effects Approach Would Create

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

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

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

July 24, 2012

Can A Lower Federal Court Effectively Provide Protection Against Prosecution? A Mississippi Abortion Law Raises the Question

Cross-posted from Justia's Verdict.

In the column below, I analyze a ruling last week by a Mississippi federal district judge granting a preliminary injunction in a case involving a controversial Mississippi law regulating abortion clinics.  The case raises important questions about abortion access, and also about the power of federal district court judges.

Some Background on the Mississippi Law and the District Court's Action

The law in question, Mississippi House Bill 1390, requires that all physicians in the state who work with abortion clinics meet certain requirements.  In particular, all Mississippi abortion physicians need be board-certified in obstetrics and gynecology and, in addition, must enjoy admitting and staff privileges at a local hospital.

Currently, the Jackson Women's Health Organization ("the Clinic") is the only abortion clinic located in Mississippi, and the two doctors there who offer the majority of the Clinic's abortions are not authorized to admit patients, nor do they have staff privileges, at any local hospital; in order to comply with the Act, they have since applied for such prerogatives.

The Mississippi law is controversial both politically and legally, largely because if the Clinic's abortion specialists are not able to obtain local hospital admission and staff privileges, then most women in Mississippi who seek abortions would have to leave the state, often at a significant cost of time and money, to obtain abortion services.  If this turns out to be so, then arguably the Mississippi law would impose an "undue"-and thus an unconstitutional-burden on women patients, according to the Supreme Court's 1992 watershed Planned Parenthood v. Casey ruling.

But an ultimate determination of the Mississippi law's constitutionality is far down the road.  For now, the Clinic filed suit to obtain protection from the federal district court to allow the physicians at the Clinic to continue to provide abortions even as they seek to satisfy the law's requirements.  As the District Court judge observed, "Plaintiffs' [] primary contention is that they face the uncertainty of criminal or civil prosecution for operating the Clinic out of compliance with state law."

The defendant state officials have said that they have no present plans to prosecute the plaintiffs for non-compliance, and have promised not to do so until all the administrative proceedings-during which the physicians are seeking to comply with the law-have run their course.  But the defendants have declined to promise that they will not, sometime down the road, choose to prosecute the plaintiffs for operating the Clinic during the period in which Plaintiffs seek, but do not yet enjoy, admitting and staff privileges.

Without resolving the underlying merits of the lawsuit (i.e., the constitutional questions it raises, such as whether Mississippi's law violates the undue burden standard, either on the law's face or as applied to the Clinic), the federal district court judge understandably wanted to protect the Clinic physicians from suffering consequences from the actions that they are undertaking now, while they seek to obtain the privileges that would allow them to comply with the law, and while the law's constitutionality has not been resolved one way or another.

Accordingly, the federal district court issued an order that that required the Plaintiffs "to continue to seek admitting privileges-as they said they would-[but that also] enjoin[ed] Defendants from exposing Plaintiffs to criminal or civil penalties for continued operation."  Held the district court:  "The Act will be allowed to take effect, but Plaintiffs will not be subject to the risk of criminal or civil penalties at this time or in the future for operating without the relevant privileges during the administrative process." (Emphasis added.)

Can the District Court Really Protect the Plaintiffs From Subsequent Prosecution?

The district court's course of action seems like a reasonable way to proceed until more is known about whether the two physicians at issue will obtain the required privileges, and/or whether the law will be deemed unconstitutional after more inquiry.  But what if a higher court-the U.S. Court of Appeals for the Eleventh Circuit, or the U.S. Supreme Court-finds that the law is plainly constitutional, such that the district court made a mistake in blocking its enforcement in any way?

If this were to happen, then the higher federal court would lift the district court's injunction, going forward.  But what about the plaintiffs' actions that were taken during the time when the injunction was in effect?  Are the plaintiffs still protected from prosecution by the district court's order?

Put another way, if a district court tells you that the actions you are about to take are immune from prosecution, should you be able to rely on that immunity, even if it turns out that the district judge provided it based on a flawed legal premise?  After all, if you can't trust a district court judge's word about when you are safe, whose word can you trust?

It turns out that the Supreme Court precedent on this question is far from clear, and that at least one liberal lion of the Court has suggested that reliance by a party on immunity that is wrongfully accorded to it by a district court may be foolhardy.

Of course, in light of such reliance, the prosecution may choose never to prosecute, but some intimations from members of the high Court suggest that it would be the prosecution's (and perhaps ultimately the jury's) call. These intimations thus suggest that constitutional notions of due process and fairness don't foreclose prosecution.

A Key High Court Discussion of This Issue in Edgar v. MITE Corp.

Precisely this kind of question arose, albeit not in the abortion setting, thirty years ago in the 1982 Edgar v. MITE case, which involved an Illinois statute that tried to regulate corporate takeover offers. MITE Corp. challenged the constitutionality of the Illinois statute on the ground that the statute unduly burdened interstate commerce, and was thus preempted by federal law.

On February 2, 1979, MITE obtained a temporary injunction from a federal district court ordering the Illinois Secretary of State to refrain from invoking the provisions of the Illinois statute to block MITE's intended takeover of another company.  Accordingly, on February 5, in violation of the provisions of the Illinois statute and in seeming reliance on this injunction, MITE published its takeover offer in The Wall Street Journal.

On February 9, 1979, the district court entered a judgment declaring the Illinois statute unconstitutional; as a result, the court enjoined for the indefinite future the Secretary of State from enforcing the Illinois statute against MITE.

The U.S. Court of Appeals for the Seventh Circuit then affirmed the district court's ruling, such that the injunction against enforcement going forward remained intact.

However, the Illinois Secretary of State sought review of the constitutionality of the statute in the U.S. Supreme Court, and the Court granted review. Some members of the Court addressed the issue of the immunity provided (or not provided) by lower-court injunctions only within a larger debate about whether the case was moot.  If moot, the case would, of course, have to be dismissed, as there would be no live legal issue.

Justice Stevens wrote separately, stressing that, in his view, the case was not moot because Illinois might still prosecute MITE for conduct that had been undertaken while the preliminary injunction was in effect. (Justice Stevens's view in this case was surprising, given his "liberal" reputation on the Court during his last two decades there.)

The late Justice Thurgood Marshall, joined by the late Justice William Brennan, strongly disagreed. They argued that the case was in fact moot because there was no longer a takeover offer on the table, and that a federal court injunction-even if it is a preliminary injunction-ought to be understood as conferring complete immunity for acts undertaken while the injunction was in effect.

Justice Marshall's approach would give federal judges the power to grant complete immunity from punitive sanctions to persons who desire to test the constitutionality of a state statute.

But Justice Stevens rejected this approach, contending that (regardless of the wisdom of this rule) "federal judges have no power to grant such blanket dispensation from the requirements of [what turn out to be] valid legislative enactments."

The Problem with Justice Stevens's Position: How Far Does Its Logic Go?

Several aspects of Justice Stevens's position are not entirely clear. First, Justice Stevens says at various points that federal courts lack the power to block the prosecution of a state statute found to be valid.  Was his view inspired only by federalism worries (as some of his broader language suggests), or do federal courts also lack the power to block prosecutions under a federal statute?

Second, Justice Stevens does not limit his argument to preliminary injunctions-which means that it might also apply to permanent injunctions and declarations of unconstitutionality issued by the district court after full-blown trials and other adjudications. Stevens bluntly opines that a federal declaration of unconstitutionality "reflects [no more than] the opinion of the federal court that the statute cannot be enforced."

As a result, Justice Stevens would, at some level, leave plaintiffs in the very Catch-22 that they sought to avoid by seeking judicial help in the first place: Give up an activity that they believe (and a district court agrees) is constitutionally protected, or risk criminal prosecution down the road if the district court's ruling on its constitutionality is reversed.

This Catch-22 would continue until the Supreme Court decisively affirmed the issuance of the injunction (or denied review)-and indeed, might even continue through the entire statute of limitations period!

After all, what if the Court overruled its own precedent and later held the statute constitutional?  Under Justice Stevens's logic, perhaps backward-looking prosecutions could be brought even then.

The Problem With Justice Marshall's Position: Where Do Courts Get The Power to Immunize Conduct Proscribed by a Valid Criminal Statute?

On the other hand, Justice Marshall never really answers Justice Stevens's complaint: Where do federal courts get the power, in the first place, to immunize illegal conduct under a statute that is eventually validated as being good law?

Congress could probably give the federal courts this power directly, on the ground that it is "necessary and proper" to facilitate access to the courts.  Or, Congress could make reliance on an injunction a complete defense to federal crimes (though not to state crimes). But Congress hasn't availed itself of either option. (Many states, in contrast, have followed the Model Penal Code to create a defense to state crimes when the defendant has relied on a judicial ruling.)

So where do federal courts get the power to confer this immunity, if not from Congress? If the power comes from anywhere, it must come directly from the Constitution itself.

A Possible Constitutional Source for Federal Courts' Power to Immunize

One possible constitutional source for federal courts' power to immunize is the Due Process Clauses of the Fifth and Fourteenth Amendments.  Due process means, among other things, that you can't be prosecuted unless you've been provided adequate notice that your actions are criminal.  And a contrary judicial ruling, upon which you relied, could undermine any claim that you did get proper notice.

The Supreme Court has seemed sensitive to this concern when it has reversed its own earlier position on a particular act's criminality.  In cases such as James v. United States, it has held that Due Process means that the feds cannot punish someone for doing an act that the Court had earlier held, in other cases, to be non-criminal.

One could imagine applying this logic to say that when a defendant has obtained a permanent injunction against enforcement of a statute, he cannot be punished for violating that statute. Indeed, reliance on a permanent injunction that you yourself obtained may be thought to be more reasonable than reliance on an early case involving other parties. (Reliance on a preliminary injunction is much trickier, since the injunction itself does not make any final determination of constitutionality-finding, at most, only a "likelihood" of success on the merits.)

But James and similar precedents could also be limited, on several grounds, to exclude their application to lower federal court injunctions.  First, it's important to note that the Supreme Court, while allowing reliance on its own rulings, has been loath to allow reliance on lower federal court rulings.

To cite one example from another setting, in a case decided a few years ago, Bowles v. Russell, a district court judge mistakenly told a habeas corpus petitioner that he had 17 days to file a notice of appeal, when the statute provided for a 14-day window.  The petitioner filed the appeal on day 16, inside the time period that had been told to him by the district court but outside the 14-day time period provided for in the statute, and the Supreme Court ruled the appeal invalid, effectively holding that even though the petitioner might have relied on the district court's mistake, he was not protected in that reliance, and his appeal was lost.

Second, it may be worth mentioning that the James line of cases dealt with judicial determinations of the meaning of federal criminal statutes, not their constitutionality. If a statute gives fair warning that certain conduct is criminal, then that may, in the Court's eyes, be enough to render such conduct prosecutable-even if the statute is enjoined for a while by lower courts. In United States v. Lanier, for example, the Court used language suggesting that it might take this view, finding a due process problem only when someone is prosecuted for "conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope." (Emphasis added.) The Court, in other words, may decide that statutory warning is always fair warning.

Is the Power to Immunize Part of a Federal Court's Inherent Article III Power?

Some others may argue, however, that there is another source, besides the Due Process Clauses, for federal courts' power to immunize: It is simply Article III of the Constitution, which endows federal courts with the power, in the first place, to resolve "cases that arise under the Constitution."

Along with this power, this argument would run, comes adequate power to ensure access to the federal courts. Very few people can wait months and years to vindicate what they believe to be their constitutional rights. Yet waiting for a final Supreme Court ruling (or denial of review) in a particular case will typically take months or years. If plaintiffs must wait that long to rely on a ruling-before they can safely perform the acts they have wanted to perform all along-then they may not bother to bring their cases in the first place. Instead, they may simply forgo their desires, and perhaps their rights, and forget about challenging the statute at all.

The issue that the Supreme Court has so far left unresolved-of whether a Supreme or lower federal court injunction can be relied upon to confer immunity from prosecution-ought to be definitively answered, one way or the other, so that litigants know where they stand.

It may well be that, as a practical matter, the federal and state prosecutors are unlikely to "reach back" and prosecute persons who acted at a time an injunction was in effect. But, on the other hand, some prosecutors might well be tempted to do so, especially when it comes to politically-charged matters, like abortion in Mississippi (the conflict with which this column began.) Accordingly, Congress and/or the federal judiciary should clarify things so that people can know how much-or how little-injunctive relief is really worth.