Mar 30, 2015

RFRA, “Minority Religions,” and “Collective Liberty”

Howard Friedman offers several reasons why Indiana’s RFRA is so much more controversial than its 1993 federal counterpart. His second rationale crystalized why Indiana’s law has created such an outrage!

Traditionally it was assumed that the federal RFRA would be used by minority religions to fend off broad regulations that might be enacted without a careful weighing of idiosyncratic religious practices that are important to often discrete and insular groups with comparatively small numbers of adherents.  Since Hobby Lobby and the explosion of same-sex marriage cases, it is largely the Christian majority (or a segment of it) that asserts it is the victim of the majoritarian process, seeking exemptions that have a negative impact on minority groups that have broadly been the victims of past governmental discrimination.

Dale Carpenter expressed a similar sentiment:

What started out as a shield for minority religious practitioners like Native Americans and the Amish is in danger of being weaponized into a sword against civil rights.

In my abstract for “Collective Liberty” (which just got a shot of new material), I stated the issue almost the exact same way:

Second, with respect to free exercise, we have witnesses a bold transformation of the Religious Freedom Restoration Act (“RFRA”). Introduced in Congress by Senators Kennedy and Rep. Schumer, and signed into law by President Clinton in 1993, RFRA was designed as a legislative override of Justice Scalia’s unpopular decision in Employment Division v. Smith. The law was designed as a shield to protect religious minorities, such as Native Americans who use sacramental peyote, from laws that infringe on their exercise. Fast­forward two decades, and RFRA is now wielded as a sword to enforce the religious identities of corporations, that cannot be burdened by the Affordable Care Act’s contraceptives mandate. In her dissent in Burwell v. Hobby Lobby, Justice Ginsburg highlighted the divide, focusing on how the Court’s accommodation of the religious liberties of Hobby Lobby would have an impact on “thousands of women” “who do not share the corporation owners’ religious faith.” For Ginsburg, the collective needs of society for covered contraception easily trumps religious liberty. The majority, which grudgingly conceded that covering contraception was a compelling interest, viewed the calculus exactly backwards.

A similar argument could be made about Free Speech, which many progressive would also argue was hijacked by the right. Come to think of it, that is the other theme of “Collective Liberty.”

Historically, liberals tended to favor broad conceptions of individual rights, with respect to protecting unconventional and unpopular speech, minority religious groups, and the right to private association. Conservatives, in contrast, often opposed such rights to the extent they impeded the preservation of traditional social norms. But in recent years there has been a reversal, as the right has co­opted the mantle of individual liberty against claims of governmental intrusion into their time­honored institutions. But for the left, a robust freedom of speech, religion, and association­­no longer serving the causes of social justice­­can now more easily be subordinated to the “generalized conception of the public good.”

First, with respect to free speech, the progressive preference for collective liberty is evident in the ACLU’s decision not to file a brief in McCutcheon, reflecting a divide among its members. As Floyd Abrams opined, the dissent offers a “very troubling vision of free expression” and is “deeply disquieting.” With respect to speech, modern­day liberalism seems to be drifting away from protecting individual freedom, and more towards constitutionally guaranteeing equality. Conservatives seize on expanded speech rights to repel this creeping control.

This paper got even more timely than I expected. My draft is due to the Floyd Abrams conference at YLS at 4/14, so I will have something by then (one way or the other).

Update: The NY Times makes the same point:

When the federal government adopted a religious protection act in 1993,same-sex marriage was not on the horizon.

An informal coalition of liberals and conservatives endorsed the Religious Freedom Restoration Act because it seemed to protect members of vulnerable religious minorities from punishment for the exercise of their beliefs. The federal legislation was set off by a case involving Native Americans who were fired and denied unemployment benefits because they took part in ceremonies with peyote, an illegal drug.

Twenty states, including Indiana last week, have since passed their own versions of religious freedom laws.

But over time, court decisions and conservative legal initiatives started to change the meaning of those laws, according to liberal activists. The state laws were not used to protect minorities, these critics say, but to allow some religious groups to undermine the rights of women, gays and lesbians or other groups.

 “The coalition broke apart over the civil rights issues,” said Eunice Rho, a lawyer for the American Civil Liberties Union. The organization, which initially supported the measures, now opposes them unless they include language ensuring that they will not be used to permit discrimination or harm.

In a January decision, the Supreme Court ruled that under the 1993 law, a Muslim man in federal prison could keep a short beard.

That is a prototypical example of what most saw as the original purpose of the act, said Katherine M. Franke, the faculty director of the Public Rights/Private Conscience Project at Columbia Law School.


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Mar 30, 2015

Discussion of Indiana RFRA on Laura Ingraham Show

Here is audio of my interview on the Laura Ingraham show discussing the Indiana RFRA.

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Mar 30, 2015

Congress Should Repeal the IPAB, Even Though Obamacare Says It Can’t

Today, the Supreme Court (yes, believe it or not, the center of the legal world didn’t revolve around them) denied certiorari in a challenge to the ACA’s Independent Payment Advisory Board (IPAB). As PLF’s Timothy Sandefur–who filed an amicus in this case–explains, this law is all sorts of constitutional.

This morning, the Supreme Court declined to review the case challenging the constitutionality of the Independent Payment Advisory Board, or IPAB. This is the group of unelected bureaucrats given authority to set Medicare reimbursement rates, whose “recommendations” automatically become law without any involvement by Congress, the President, or the courts. It’s a shameful violation of the constitutional principles of separation of powers—but the Ninth Circuit Court of Appeals ruled last year that it was too early to consider the case because IPAB hasn’t yet actually acted. We, along with several members of Congress, urged the Court to take this case last winter, but this let the Ninth Circuit decision stand.

The problem with that, of course, is that by the time IPAB does act, it’s likely to be too late, because the law creating IPAB actually forbids Congress from repealing IPAB after a brief, one-month period in 2017. Although that anti-repeal provision is also unconstitutional, it certainly will make it harder to challenge IPAB’s actions, one way or the other. And the law also bars judicial review of any decision IPAB makes.

I don’t even know when a law suit could be brought to challenge IPAB? When members are appointed to the Board? As I understand it, if the Board is never staffed, this unilateral power devolves to the Secretary of HHS. But the Secretary cannot exercise that power until well after 2017 following a report from the Chief Actuary, which trigger’s IPAB. In any event, it is entirely unclear when a constitutional challenge could even be filed.

But, as we have been reminded lately by my friend Will Baude, the Court is not the only branch to determine the validity of laws. Congress and the President could determine that the “repeal” provision is unconstitutional, and pass a law repealing IPAB whenever it damn well pleases. Yes, you read that right. If a statute provides that a law cannot be repealed, a future Congress can deem that provision unconstitutional, and then proceed to ignore it. And the President could also decide the repeal law is void, and sign the repeal bill. As an aside, the Obama Administration has already stated in court that the repeal provision is unconstitutional, so DOJ of either administration would probably be estopped here.

But wait! Democratic members of Congress may try to bring a law suit challenging the repeal! They would rely on the “institutional injury” alleged in Boehner v. Burwell to justify standing. And then we would come entirely full circle. Both the Republicans and Democrats Representatives will have sued to enforce provisions of Obamacare.

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Mar 30, 2015

New in National Review: “Is Indiana Protecting Discrimination?” and Responding to Criticisms

On Friday, I published a post comparing the federal RFRA and the Indiana RFRA. I wrote it because I had not seen a *single* post that comprehensively compared the two laws. I considered this a huge failing, as virtually everything I read was filled with gross mischaracterizations of how RFRA works. The notion that it provides a “license to discriminate” disregards how these laws have operated in the federal government, and in nearly half the states in the union, for over two decades. That post alone received nearly 30,000 hits over the usually-slow weekend (which is roughly what I get in 2 weeks). There was a serious demand for information about how this law actually operates, as opposed to invective and diatribes.

In National Review today, I wrote a fairly comprehensive history of RFRA, to put the Indiana law into context. My major takeaway is that debates over the law today should be informed by the two-decade history of the federal RFRA and its state counterparts.

In this post I want to address three common rejoinders to this position.

First–when RFRA was enacted in 1993, it was not designed to protect for-profit corporations, only non-profit corporations. I call this the “Hobby Lobby sour grapes” argument. This issue was resolved by a bitter 5-4 decision, which probably half the country thinks is wrong, and the other half thinks is right. I get that. Even if Chuck Schumer and company did not intend for the law to apply to for-profit corporations–and this feeds into the Citizens United corporate personhood meme–I think the best reading of the statute provides for protections for corporations. Once the Solicitor General conceded that an incorporated Kosher butcher shop could not challenge a law that prohibited the ritual jewish slaughter, I realized how essential RFRA would be going forward. In any event, Indiana’s law makes clear what the Court held in Hobby Lobby. That people who associate in the corporate form do not lose their rights of free exercise.

Second–when RFRA was enacted in 1993, it was only meant to provide a remedy against the federal government, and not a defense against a private discrimination suit. I won’t repeat the history that I discuss in my NRO piece, but the short answer is their contemporaneous-silence on this issue isn’t nearly as important as the text of the statute they enacted. Four federal courts of appeals, and the Holder Justice Department (p. 3-4), have all taken the position that RFRA provides a defense. Judge Posner, Judge Moore (CA6) and then-Judge Sotomayor dissenting on the 2nd Circuit have taken the opposite position. This is an issue on which reasonable minds can disagree. Indiana’s position is not crazy.

The unavoidable conclusion–a fact that Mike Pence refused to address–is that RFRA does provide a defense to discrimination claims, similar to the “ministerial exception” that the Court unanimously recognized blocks the Hosannah-Tabor Church from being sued for disability discrimination. This is how defenses to Title VII work–in certain cases, the discrimination laws are trumped. I recognize that people today may not like that doctrine, but it is well-established in our caselaw. Ask any employment lawyer and they will tell you that not all discrimination for protected statuses is void. That being said, RFRA is not an automatic defense.

We need to distinguish the different types of claims that are prevalent today into three categories.

  • First, there are cases involving bakers, florists, photographers, and what I’ll call the “creative professions.” For reasons advanced by Eugene Volokh in his amicus brief in the Elane Photograph case, it violates the First Amendment’s free speech clause to compel people to engage in expressive acts, such as photography or floral arrangement. The “Free Speech” argument obviates the need to even turn to RFRA.
  • Second, there are cases involving catering halls, bed and breakfast inns, and other venues where ssm-related events can be held. I’ll call these the “venue professions.” I think under the laws of common carriers, these businesses are in a very different position. At common law, places of public accommodation were required to take all customers without regard to discrimination. (I think the Hearts of Atlanta Motel case could have been alternative resolved on this ground). These businesses are not engaged in the same sort of speech acts as the florist or photographer, and cannot rely on the First Amendment. In almost all of these cases, I think the RFRA claim will fail.
  • The mixed cases present more difficulties. For example,  a Catholic Church owns a catering hall that they offer for church-related functions. Or if the owner of a chapel is also a minister, and provides the chapel as a benefit to those he marries. These are the difficult cases that RFRA exists for–not run-of-the-mill businesses turning away customers.

Third–when RFRA was enacted in 1993, it was not targeted at gays and lesbians. On its face, the law does no such thing. As I discuss in this post, Indiana’s new law offers the exact same burdens and remedies that have existed for two decades. But a variant of this argument takes on a Romer-esque tone: Even if facially neutral, Indiana’s RFRA attempts to withdraw rights (“dignity” if you ask Justice Kennedy) conferred on gay couples by the legalization of same-sex marriage (courtesy of Judge Posner). This argument, which I haven’t seen stated so explicitly, but is suggested by Marci Hamilton, would lead to the conclusion that not only is RFRA bad policy, but it is unconstitutional–whether under the Establishment Clause (a position the Solicitor General adopted in Hobby Lobby, and endorsed by RBG’s dissent) or under the Kennedy-Romer-Analysis (which the Court should have relied on, but inexplicably disregarded in Schuette, suggesting the doctrine is dead).

This argument reflects what I called in my article the “intersection between faith and equality,” and more broadly what I’ve described as a trend from individual to collective liberty. Free expression was (at least in 1993) viewed as a paragon right, that, when protected, will impede the application of laws of general applicability. It was viewed as a goal of such significance that federal law could give way. Today, I think (suspect) that the tides are shifting on this issue. To the extent that the protection of liberty gets in the way of equality, many see that equality must trump. The balance at the time of RFRA may be different than the balance today.

Update: On my last point, Doug Laycock sums up well what to do with those who support the law based on what may be dubbed “animus”:

Of course there are real bigots out there, and some of them discriminate against gays and lesbians. They are doing that in states without RFRAs as well as in states with RFRAs. They mostly aren’t asserting religious justifications; they aren’t producing cases. And if they do start to produce cases, all experience is that they’re going to lose.

Part of the problem is conservative legislators and activists promising the base that a state RFRA will protect them against gay-rights laws. That’s just pandering; there is no basis in experience to think that. But the gay-rights side has piled on with the charge that these laws are licenses to discriminate. So both sides are misleading the public. And the academics who have actually studied these laws and know what they do can’t get anyone to pay attention over the din.

Update 2: Making the opposite point is Dale Carpenter:

But what I think the “nothing to see here” defense misses is the cultural, political, legal, and religious context in which these laws are being passed–a context that could easily lead courts to apply the laws in more aggressive ways.  The newly energized effort to push mini-RFRAs like Indiana’s is almost entirely a reaction to the gay-rights movement, including but not limited to the increasing acceptance and reality of same-sex marriage. One need only listen to the kinds of examples that RFRA supporters cite as “burdens” on religion to know that RFRAs nowadays are directed at validating and legitimizing antigay discrimination. What started out as a shield for minority religious practitioners like Native Americans and the Amish is in danger of being weaponized into a sword against civil rights.
What’s more, the effort to pass mini-RFRAs is now stimulated and fueled by a religious-litigation complex of groups and institutions that did not exist in anywhere near its present form, size, or sophistication when the original RFRA passed. It’s perfectly legitimate for any group, including anti-gay legal groups, to organize and litigate for their purposes. But the changed context they have created through their prodigious efforts makes the passage of spacious and comprehensive “religious freedom” protection very different from what it was two decades ago, even if the words of the laws are the same. We haven’t seen courts treat the strict scrutiny test in RFRA laws very seriously in the past, which is why we’ve avoided the “anarchy” Justice Scalia warned about in Employment Div.v. Smith(1990)(rejecting strict scrutiny of neutral laws that burden religion), but the increased litigation pressure and focus of anti-gay activists may lead courts–especially elected state court judges–in many places to break the dam. …
In the past, I might have been as optimistic as some apologists for Indiana’s RFRA that civil rights laws protecting LGBT people would pass the test. But the refusal of the legislature to codify any such assurances, combined with a backlash claiming to champion religious freedom and an anti-gay legal establishment ready to pounce, leaves me unpersuaded that there’s nothing to be worried about.


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Mar 30, 2015

Colorado AG Calls for Views for Solicitor General in Original Jurisdiction Battle with Nebraska and Oklahoma

Nebraska and Oklahoma filed suit against Colorado in the Supreme Court’s original jurisdiction, raising various nuisance other claims to demonstrate they were injured by the Centennial State’s decision to decriminalize marijuana. From the outset, I thought this case was directed at the wrong defendant. The true  party to blame is the Executive Branch’s failure to enforce provisions of the Controlled Substances Act in states that legalized marijuana. This abdication fits in more broadly with the Obama Administration’s repeated failures to take care that the laws are faithfully executed. In addition to the drug laws, we have seen similar non-enforcement decisions with respect to immigration, Obamacare, No Child Left Behind, and other laws that proved inconvenient to the President.

Since the original jurisdiction case was filed, I was secretly hoping that the Court would call for the views of the Solicitor General. I would love to see how the government justifies, on the merits, this non-enforcement of the law. Now, in its brief in opposition to the motion for leave to file a complaint, the Colorado AG has explicitly called for the views of the federal government, dubbing it an “indispensable party.”

Colorado understands the Plaintiff States’ frustration that national marijuana policy now hinges on a series of executive memoranda articulating a policy of “prosecutorial discretion.” See, e.g., Cole Memo at 3. But, again, although the Plaintiff States are willing to challenge the Administration’s non- enforcement of federal law, see Texas v. United States, 2015 U.S. Dist. LEXIS 18551, they have not done so here.

This demonstrates the need for the federal government’s involvement in this case. The Complaint and Brief in Support raise questions of federal enforcement policy that are “distinctively federal interests, best presented by the United States itself.” See Maryland v. Louisiana, 451 U.S. at 745 n.21 (1981). As explained above in the Statement, Colorado’s marijuana regulations grew out of the federal government’s policy of deferring to state-level efforts to legalize and regulate marijuana within their borders. A court order invalidating Colorado’s regulatory laws would not close the alleged “gap” in the CSA, a statute that only the federal government may enforce. See above at 24–27.9

9 Nor would a Court order against Colorado ensure federal compliance with international treaties. See Compl. ¶¶ 23–30. Indeed, the United States has argued in previous cases that “Ensuring that treaty obligations are satisfied is a distinctly federal interest that is best presented . . . by the United States . . . .” Mem. in Supp. of Mot. of U.S. to Intervene at 9, Texas v. New Mexico, No. 141, Original (Feb. 2014).

The Plaintiff States’ claims are therefore “dependent upon the rights and the exercise of an authority asserted by the United States.” Arizona v. California, 298 U.S. 558, 571 (1936). The United States—or, at least, the Department of Justice—is an indispensable party. See California v. Arizona, 440 U.S. 59, 61–63 & n.3 (1979). That means either the federal government must intervene as a defendant or the suit must be dismissed. See id.; Maryland v. Louisiana, 451 U.S. at 745 n.21 (“We have often permitted the United States to intervene in appropriate cases where distinctively federal interests, best presented by the United States itself, are at stake.”); Texas v. New Mexico, 352 U.S. 991 (1957) (“[T]he bill of complaint is dismissed because of the absence of the United States as an indispensable party.”); see also Texas v. New Mexico, 134 S. Ct. 1783 (2014) (granting leave for the United States to intervene in a case with implications for a federal water project and the government’s relationship with Mexico).

Agreed entirely. The party to be charged here is the United States, not Colorado.

Before dismissing the complaint, the Court should Call for the Views of the Solicitor General and get the United States government on record of how it legally justifies its failure to enforce provisions of the CSA.

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Mar 28, 2015

Harry Reid & The “Inartfully Drafted” ACA

One point that I often stress when discussing King v. Burwell, and the ACA as a whole, is that we are stuck with a preliminary draft of the bill, that never went through conference. Due to the sudden election of Scott Brown, the Democrats lost their 60-seat filibuster-proof majority in the House. As a result, the House was forced to pass the Senate bill–an incomplete version–through the arcane reconciliation process. This approach only allowed minimal modifications. Many items that would normally have been fixed during the conferences process, simply were not.

The retirement of former-Senate Majority Leader Harry Reid has occasioned a sharp piece from the National Journal about his role in passing the ACA–how it “saved the ACA, but at a price that could kill it.”

It took two bills, shuttled back and forth between the chambers in the last half of March, and Reid’s thinned majority withstanding 30-plus amendments from Republicans. On March 30, 2010, Obama signed the Health Care and Education Reconciliation Act of 2010, which put the finishing touches on the ACA and turned it into law.

“I think it was the example, the prime example, of several things about Reid that many of the stereotypes miss,” Ornstein said. “It’s not just his mastery of the process. It’s also that, this public image of Reid as this bombastic guy who often exhibits thuggish behavior, masked that trust, and the affection, virtually all the members of his conference have for him.”

Democrats celebrated, but with the victory came a caveat. Amending the legislation that passed before Brown’s victory, and then reconciling it with the House’s bill, was difficult under the convoluted procedure that Reid and Pelosi took. There was never a conference committee, and so there was never a chance to make the type of minor fixes and technical corrections that most legislation receives in the final stretch.

“We meant to clean it up in conference, but we never got to conference,” one staffer said in early 2014. “It’s definitely inartfully drafted.”

And the lack of one of those minor fixes has opened a window for a conservative legal challenge that strikes at the heart of the law. In King v. Burwell, the plaintiffs argue that the letter of the law doesn’t allow Obamacare’s crucial tax credits on, which 30-plus states and millions of ACA enrollees use.

I trace much of the intractable gridlock in Washington, D.C. to this very moment in 2009 when the ACA was passed on a 60-line vote. In much the same way that Kim Kardashian “broke the internet,” I think Harry Reid ramming the ACA through “broke the Senate.” This is to say nothing of his later decision to trigger the nuclear option, and eliminate the filibuster altogether for judicial nominees other than the Supreme Court. The intransigent Republicans take virtually all of the blame for the gridlock over the last few years, but much of it should fall at the feet of Reid.

I discuss this origin of the law at length in Unprecedented. Steven Brill adds some new insights in his new book, Bitter Pill:

On December 19, 2009, Reid introduced a “manager’s amendment” to the final bill that incorporated all of the deals he had made, meaning that all fifty-nine Democrats and Sanders would vote for it because even if they thought something like the Cornhusker Kickback or the reduction in the device tax was wrong, there was another nugget in there especially for them. Reid would later be hailed by healthcare reformers as a hero for keeping the Senate in session day and night through the week leading up to Christmas as he carefully introduced the amendments that were in the package of the deals he had negotiated but blocked all others. But Snowe was disgusted, she told me, that the most important piece of domestic legislation in decades was being rammed through that way. Nonetheless, expanding health insurance had been an issue she had worked on since serving in the Maine state senate. So she was still on the fence for the final vote.

On December 23, Snowe traveled through a morning blizzard in Washington to meet with the president. It was the eighth time they had met one-on-one about healthcare reform. Snowe sat down and quickly told the president she couldn’t vote yes— yet. “I urged him to take a breather, and let us have a hiatus over the holidays and then have a full, open debate— not the closed process that Harry [Reid] was running,” Snowe recalled. “I told him the opposition was only going to grow if he passed a bill this way by ramming it through with no Republicans. But he told me that the heat would subside. He compared it to how the opposition to his surge in Afghanistan had subsided once it started.” On Christmas Eve morning, in a moment of high drama, the Senate passed the bill with no Republican votes.

Brill has this to say about what he calls the “drafting error” in King v. Burwell:

WHETHER RYAN WAS RIGHT about the new law being a “fiscal Frankenstein,” it certainly was a drafting Frankenstein. One had to read the 55-page sidecar bill full of the agreed-upon amendments alongside the original 906-page Senate bill to understand what was really in it. Worse, the rush to finish off the deal had produced some sloppy drafting from the Senate Office of Legislative Counsel, an obscure group of career lawyers who put the Senate staff’s long legal drafts into actual legislative language. Beyond the usual typos there were some significant inconsistencies.

The most important drafting mistake seemed to say that insurance bought on the exchanges run by the federal government and not by the states (if a state decided not to set up its own exchange) would not qualify for subsidies at all, although elsewhere the language did, as was clearly intended, include the exchanges run from Washington.

That error— which would become the subject of litigation in the federal courts in 2014— was the result of a last-minute change as the Senate bill was being passed early in the morning on Christmas Eve. Fowler and her staff had always intended that the federal exchange would be a backup in states that could not or would not mount their own exchanges so that people in those states could get the full benefit of Obamacare. The CBO had scored the bill based on this unambiguous intention. However, someone had mistakenly cut and pasted language from a provision in an earlier draft that referred only to state exchanges and used it in one place, though not elsewhere, as a boilerplate reference to the exchanges in one of the clauses describing how the subsidies would work.

Normally, these and other slipups, once discovered, would be corrected in a routine “fix” that would get a unanimous vote. However, with Republicans already talking about repeal, no unanimous vote on anything related to Obamacare was likely.

I’ll stick with my quote to the Times about this case:

Opponents of the subsidies say it is the text of the law that matters, not what individual lawmakers knew or believed.

“It is extremely doubtful that any senators read the entire bill at the time, and even more doubtful that all but a few senators were even aware of how the exchanges were structured,” said Josh Blackman, a law professor at South Texas College of Law who has filed a brief supporting the plaintiffs.

“When you have such a large bill, that changes so many aspects of our society, that no one bothered to read, discerning a single legislative intent is elusive,” he continued. “To this, the challengers reply that the text provides the best indication of what Congress meant — the majority voted on it.”

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Mar 26, 2015

Comparing the Federal RFRA and the Indiana RFRA

Yesterday, Indiana Governor Mike Pence signed into law a Religious Freedom Restoration Act (RFRA). One of the only posts I’ve seen that attempts to look at the language of the new law is from Professor Friedman at the Religion Clause Blog. He identifies three ways that the Indiana RFRA deviates from the federal RFRA.

The Indiana General Assembly yesterday gave final approval to Senate Bill 101, the Indiana Religious Freedom Restoration Act. (full text).  The bill is broader than its Federal counterpart in several ways.  [1] It explicitly protects the exercise of religion by entities as well as individuals.  Its enumeration of entities includes “a corporation”, without limiting this to closely-held companies.  [2] The bill’s protections may be invoked when a person’s exercise of religion is “likely” to be substantially burdened by government action, not just when it has been burdened.  [3] The bill also permits the assertion of free exercise rights as a claim or defense in judicial or administrative proceedings even if the government is not a party to the proceedings. The relevant governmental entity has a right to intervene in such cases to respond to the RFRA claim. A remedy under the bill is only available against the government; suits by employees or applicants invoking the law against private employers are precluded.

First, Section 7.3 of the law provides that it covers certain types of corporations:

(3) A partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity that:
(A) may sue and be sued; and
(B) exercises practices that are compelled or limited by a system of religious belief held by:
(i) an individual; or
(ii) the individuals;
who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.

Recall that the Dictionary Act, which applies to RFRA, defined a “person” as a “corporation.” Only Justices Ginsburg and Sotomayor dissented from this part of Hobby Lobby. In that decision, Justice Alito (roughly) defined a corporation protected by RFRA as a “closely-held” one. The language in Section 7.3 seems to do more or less the same. In almost all cases, if “the individuals” with “system of religious beliefs” have “control and substantial ownership,” then it would be closely held. This portion tracks the federal standard rather closely. I can imagine a situation where the majority shareholder of a public corporation has a system of religious beliefs and the public corporation invokes them. But that seems quite far-fetched–and not necessarily foreclosed by Hobby Lobby’s definition of “closely-held” either.

Second, Section 9 provides protections for “A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened.” While it is true that the “is likely to” language does not appear in the federal RFRA, I don’t think it adds anything.  It’s effectively asking if there will be a likelihood of success on the merits. In the case of Hobby Lobby a pre-enforcement challenge was brought, claiming that they were likely to have a substantial burden. No burden was ever inflicted. I’m not sure what else the “likely” language adds.

Third, and most significantly, the law provides a defense in a private suit where the government is not a party.The Indiana RFRA offers the following language:

Sec. 9. A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person’s invocation of this chapter.

In other words, the law provides a defense against a private discrimination suit. For example, Jill and Jane Doe sue a photographer for failing to photograph their wedding under a local non-discrimination ordinance. The photographer than raises the state RFRA as a defense. Even though the government is not a party, RFRA can be raised as a defense in the judicial proceeding. The court would have to determine whether the application of the non-discrimination ordinance substantially burdens the photographers exercise of religion.

Does the federal RFRA also provide a defense? It depends on what Circuit you’re in. Shruti Chaganti writes in the Virginia Law Review about this split.

The circuits are split as to whether RFRA can be claimed as a defense in citizen suits—suits solely between private citizens in which the government is not a party. This split is based on an ambiguity in the text: whether the phrase “and obtain appropriate relief against a government” is meant to limit the set of cases in which a “claim or defense” may be raised in a judicial proceeding, or whether the phrase simply signifies an additional right upon which a litigant may rely.

Some circuits (CA2, CA9, CA8, CADC) hold that RFRA can be raised as a defense:

Some circuits (hereinafter “defense circuits”) have allowed RFRA to provide a defense in citizen suits, finding the statute’s language and purpose sufficiently broad to create a defense regardless of the parties to the suit.7 Under this reading, an unambiguous version of the text would be modified to say, “A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and may obtain appropriate relief (including against a government).”8 This reading makes clear that relief against a government is merely an additional right—a subset of the more generally obtainable relief under RFRA. Thus, “claim or defense in a judicial proceeding” is freestanding and not limited by the “obtain relief” phrasing.

It is noteworthy that then-Judge Sotomayor dissented on this issue for the Second Circuit in Hankins v. Lyght (2nd Cir. 2006), holding that RFRA could not be raised as a defense. Sotomayor dissented, and wrote “the statute does not apply to disputes between private parties.”

RFRA by its terms does not apply to suits between private parties.

Two provisions of the statute implicitly limit its application to disputes in which the government is a party. Section 2000bb-1(c) states that “[a] person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government” (emphasis added). In the majority’s view, we should read this provision as “broadening, rather than narrowing, the rights of a party asserting the RFRA.” Maj. Op. at 103. This interpretation would be questionable even if Section 2000bb-1(c) were the only provision of the statute affecting the question of whether RFRA applies to private suits. When read in conjunction with the rest of the statute, however, it becomes clear that this section reflects Congress’s understanding that RFRA claims and defenses would be raised only against the government. For instance, section 2000bb-1(b) of RFRA provides that where a law imposes a substantial burden on religion, the “government” must “demonstrate[] . . . that application of the burden” is the least restrictive means of furthering a compelling governmental interest (emphasis added). The statute defines “demonstrate” as “meet[ing] the burdens of going forward with the evidence and of persuasion.” 42 U.S.C. § 2000bb-2(3). Where, as here, the government is not a party, it cannot “go[] forward” with any evidence.[8] In my 115*115view, this provision strongly suggests that Congress did not intend RFRA to apply in suits between private parties.[9]

All of the examples cited in the Senate and House Reports on RFRA involve actual or hypothetical lawsuits in which the government is a party. See S. Rep. No. 103-111 (1993); H.R. Rep. 103-88 (1993). The lack Of even a single example of a RFRA claim or defense in a suit between private parties in these Reports tends to confirm what is evident from the plain language of the statute: It was not intended to apply to suits between private parties.

This could prove interesting if this issue comes before the Court.

Other circuits (CA6, CA7) do not permit private defendants to raise RFRA as a defense in private suits.

Other circuits (hereinafter “nondefense circuits”) have held that the language in the judicial relief section and in the remainder of the statute suggest that RFRA meant to provide a defense only when obtaining ap- propriate relief against a government and therefore cannot apply to suits in which the government is not a party.9 A nondefense view of the text would be modified to say, “A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government and may obtain appropriate relief.”10 By moving the “ob- tain relief” phrase to the end of the sentence, this rewriting clarifies that “government” is meant to limit the types of cases in which a “claim or defense” can be asserted. This modification limits applicability of RFRA to only those suits in which a claim or defense is raised against a gov- ernment party, thus excluding a defense in citizen suits.

And wouldn’t you know it, Judge Posner wrote the leading 7th Circuit precedent holding RFRA can’t be raised as a defense. Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036, 1042 (7th Cir. 2006).

RFRA is applicable only to suits to which the government is a party. See 42 U.S.C. §§ 2000bb-1(b), (c); Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d 1110, 1120-21 (9th Cir.2000)Sutton v. Providence St. Joseph Medical Center, 192 F.3d 826, 834-35 (9th Cir.1999). “A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.” 42 U.S.C. § 2000bb-1(c).

It is hardly to be imagined, moreover, that in seeking to broaden the protection of religious rights, Congress, dropping nary a hint, wiped out a long-established doctrine that gives greater protection to religious autonomy than RFRA does. Indeed a serious constitutional issue would be presented if Congress by stripping away the ministerial exception required federal courts to decide religious questions.

Judge Sykes did not dissent on 7th Circuit panel. And Judge Sutton did not dissent on Judge Moore’s opinion for CA6.

In the Elane Photograph case, the New Mexico Supreme Court, interpreting its own RFRA, ruled that it could only be invoked when the government was a party, but not when private parties were sued by state law. The Indiana bill makes clear that the defense can be raised in any case, as have four courts of appeals covering nearly half the states in the Union.

Interestingly, as noted in this amicus brief by the Becket Fund in the Elane Photography case, DOJ has taken the position that RFRA can be raised as a defense in lawsuits brought by private parties:

In response, the United States has formally taken the position that religious organizations can assert RFRA as a defense in lawsuits brought by private parties: “[I]f plaintiff were sued by a plan participant or beneficiary in the future, plaintiff, in its defense of such an action, would have an opportunity to raise its contention that the contraceptive coverage requirement violates the Religious Freedom Restoration Act (‘RFRA’).” Reply in Support of Motion to Dismiss at 3-4, Wheaton Coll. v. Sebelius, No. 12-01169 (D.D.C. Aug. 20, 2012).

So the most controversial aspect of the Indiana law was endorsed by the Holder Justice Department. [Update: I should stress that at the time, DOJ limited the applicability of RFRA to “religious organizations,” such as Wheaton College. But following Hobby Lobby this position is no longer tenable.]

There here we have it. Indiana, as well as Arizona’s RFRAs are very similar to the Federal RFRA. In contrast, Mississippi’s RFRA, which only requires a “burden,” not a “substantial” one, deviates significantly from the federal statute.

I should stress–and this point was totally lost in the Indiana debate–that RFRA does not provide immunity. It only allows a defendant to raise a defense, which a finder of fact must consider, like any other defense that can be raised under Title VII or the ADA. RFRA is *not* a blank check to discriminate.

Update: I address this topic at greater depth in National Review and here.

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Mar 26, 2015

Sotomayor and Neuborne on the First Amendment

Justice Sotomayor, Burt Neuborne, and Trevor Morrison recently hosted a forum at NYU Law to discuss his new book on the First Amendment. Ron Collins (as usual) has an excellent summary of the hour-long discussion.

First, the Justice and Neuborne discussed the connection between Democracy and the First Amendment.

Later she asked: “You say that the focus of the First Amendment is democracy. You invite your thesis as a different way of interpreting the Constitution. So who decides what promotes democracy? People disagree about it all the time. How do you define democracy? Is it something like one person, one vote? What are its structures?”

Neuborne: “I’m sort of shocked that you asked that, because it’s clear that I define it,” he said jokingly, to audience laughter. “But Sotomayor prevailed with the wry rejoinder, ‘No, no, no, you forget, I do,’ “prompting an eruption of mirth and applause.”

“I don’t know what will be the final denouement of a judicial discussion about whether unlimited campaign spending is the best way to have a good democracy or a bad democracy,” Neuborne added. “But I would rather have judges asking that question among themselves than pretending to decide the case by deciding what seven words mean — ‘Congress shall make no law abridging speech’ — and having it be sort of automatic, without even thinking about the consequences for democracy.”

Interestingly, Sotomayor had a “fanatical belief” about the First Amendment.

[My colleague Anthony Kennedy’s] approach to [the First Amendment], unlike some of my other colleagues,  is born on a very, very, almost fanatical belief that . . . the essence of democracy is no regulation of speech.

Second, what is the Madisonian view of the First Amendment?

When Neuborne took issue with the Roberts Court’s campaign finance line of cases, Justice Sotomayor asked: “How does a Madisonia judge strike on balance [when it comes to those] laws?” To which Neuborne replied: “Great question.” He then proceeded to discuss cases going back toBuckley v. Valeo (1976) and up to the Court’s latest rulings in this area. He took pointed exception to the Court’s “narrow, bribery, quid quo pro definition of corruption.”

Speaking in a very animated way, Neuborne was equally critical of the Court’s notion (one that “I genuinely . . . don’t understand”) that “contributions can create a risk of corruption because you give the money directly to a candidate, but the unlimited spending of money, without coordination with the candidate, doesn’t create a risk of corruption . . . .” He thought that citizens and judges alike need to ask themselves: “What kind of democracy are we trying to protect here?”

Returning more directly to his answer to Justice Sotomayor’s question, Neuborne remarked: “Everybody’s political power should be equal in a democracy, and money shouldn’t corrupt that idea. . . . I think if they adopted a Madisonian reading of the First Amendment  we would change campaign financing regulation overnight.”

Third, Neuborne said that Kenendy was the “most important First Amendment Judge” ever.

[Justice Kennedy is] the most important First Amendment Judge that has ever sat on the Supreme Court. . . .

I suppose this is a sleight to Justice Black…

I should note that Neuborne typified the divide within the ACLU over campaign finance with respect to McCutcheon, as Ron Collins explained:

There was division in the ranks and it had become public. “In a statement that will be formally released in the next few days,” the article continued, “the nine leaders –

among them, former ACLU president Norman Dorsen, former executive director Aryeh Neier, former legal director Burt Neuborne and former legislative director Morton Halperin – dispute the ACLU’s view that placing ‘reasonable limits on campaign spending’ violates the First Amendment.”

A tradition had ended. While the ACLU continued to file briefs defending First Amendment claims in campaign finance cases, after 1998 former ACLU officials filed briefs opposing many such First Amendment challenges to campaign finance laws. That conflict continues to this day.

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Mar 26, 2015

Obamacare at Five Years

Blogging and writing a book are very different enterprises. A blog post is an immediate, visceral reaction to a new story. The book is a delayed, retrospective reaction to events in the past. Writing a book about a current topic, such as Obamacare, blends the two. I have to provide the sort of daily analysis that I provide as a blogger, with the 30,000 foot perspective of a novelist. It isn’t easy, and something I hope to improve from Unprecedented to Unraveled.

The 5th Anniversary of the signing of Obamacare presents just such an opportunity. This week has been a flurry of activity. Ted Cruz announced his presidency, promising to repeal “every word” of the ACA. Press Secretary Josh Earnest reminded us that Mitt Romney made the same promise. Then Ted Cruz announced that he would probably be signing up on Obamacare. Then Justice Kennedy made comments that may (or may not) implicate King v. Burwell. At the moment, all of these events may be relevant in the long run, or may not be. It’s too early to tell for sure, but I’ll likely have to make that judgment prematurely for the book.

One event that happened this week, that will almost certainly make the book, is the President’s remarks on the fifth anniversary of the ACA. Always read the transcript of these remarks, rather than the press accounts.

In fact, just five years in, the Affordable Care Act has already helped improve the quality of health care across the board. … It’s making health coverage more affordable and more effective for all of us.  And in a lot of ways, it’s working better than many of us, including me, anticipated.  (Laughter.)

The President rattled off some of the key benefits of the law:

If you don’t have health insurance, you can go online to the marketplace and choose from an array of quality, affordable private plans.  Every governor was given the option to expand Medicaid for his or her citizens, although only 28 have chosen to do so — so far.  But after five years of the ACA, more than 16 million uninsured Americans have gained health care coverage — 16 millionIn just over one year, the ranks of the uninsured have dropped by nearly one-third — one-third.

If you’re a woman, you can no longer be charged more just for being a woman.  And you know there are a lot of women.  (Laughter.)  Like more than 50 percent.  (Laughter.)  Preventive care, like routine checkups and immunizations and contraception now come with no additional out-of-pocket costs.

If you’re a young person, you can now stay on your parents’ plan until you turn 26.  And if you want to turn that new idea into a business, if you’re going to try different jobs, even a different career, you now have the freedom to do it because you can buy health care that’s portable and not tied to your employer.  Most people have options that cost less than 100 bucks a month.

If you’re a business owner — because when we put forward the Affordable Care Act, there was a lot of question about how it would affect business; well, it turns out employer premiums rose at a rate tied for the lowest on record.  If premiums had kept growing at the rate we saw in the last decade, then either the average family premium, paid by the family or paid by the business, would be $1,800 higher than it is today.  That’s 1,800 bucks that businesses can use to higher and invest, or that’s 1,800 bucks that stays in that family’s bank account, shows up in their paycheck.


Next, the President turned to explain that many of the fears over the law have not come to fruition.

If you’re a senior — more than 9 million seniors and people with disabilities have saved an average of $1,600 on their prescriptions, adding up to over $15 billion in savings.  There were fears promoted that somehow this was going to undermine Medicare.  Well, it turns out the life of the Medicare Trust Fund has been extended by 13 years since this law has passed. …

But the bottom line is this for the American people:  The Affordable Care Act, this law, is saving money for families and for businesses.  This law is also saving lives — lives that touch all of us. It’s working despite countless attempts to repeal, undermine, defund, and defame this law.

It’s not the “job-killer” that critics have warned about for five years.  When this law was passed, our businesses began the longest streak of private-sector job growth on record:  60 straight months, five straight years, 12 million new jobs.

It’s not the fiscal disaster critics warned about for five years.  Health care prices are rising at the slowest rate in nearly 50 years, which has helped cut our deficit by two-thirds since I took office.  Before the ACA, health care was the single biggest driver driving up our projected deficits.  Today, health care is the single biggest factor driving those projections down.

Next, with a bit of glee, the President faulted Republicans for all of their predictions, and the failure to provide an alternative.

I mean, we have been promised a lot of things these past five years that didn’t turn out to be the case:  death panels, doom.  (Laughter.)  A serious alternative from Republicans in Congress.  (Laughter.)

The budget they introduced last week would literally double the number of the uninsured in America.  And in their defense, there are two reasons why coming up with their own alternative has proven to be difficult.

First, it’s because the Affordable Care Act pretty much was their plan before I adopted it — (laughter) — based on conservative, market-based principles developed by the Heritage Foundation and supported by Republicans in Congress, and deployed by a guy named Mitt Romney in Massachusetts to great effect.  If they want to take credit for this law, they can.  I’m happy to share it.  (Laughter.)

And second, it’s because health reform is really hard and the people here who are in the trenches know that.  Good people from both parties have tried and failed to get it done for 100 years, because every public policy has some trade-offs, especially when it affects one-sixth of the American economy and applies to the very personal needs of every individual American.

And he did what evaded every President since TR. And he knows it–any change would result in people losing coverage.

On the other hand, for folks who are basing their entire political agenda on repealing the law, you’ve got to explain how kicking millions of families off their insurance is somehow going to make us more free.

Specifically, the President charges, how is fighting back Obamacare going to make us more free, give us more liberty?

Or why forcing millions of families to pay thousands of dollars more will somehow make us more secure.

For progressives, liberty and security is a state the government creates to ensure people do not want. The Solicitor General made this point forcefully in NFIB v. Sebelius.

Or why we should go back to the days when women paid more for coverage than men.  Or a preexisting condition locked so many of us out of insurance.


Ironically, the law was sold on a lie about people being able to keep their policies. Now, any changes that runs into cancellation notices will suffer even bigger political costs. (Stay tuned for the 2018 Cadillac Tax).

The President’s most striking remarks came at the end, when eh said that health care was “not a privilege, but a right.” This was a standard line from Senator Ted Kennedy.

Five years ago, we declared that in the United States of America, the security of quality, affordable health care was a privilege — was not a privilege, but a right.


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Mar 26, 2015

ConLaw Class 19 – Race & Gender Discrimination

The lecture notes are here. The live chat is here.

Race & Gender Discrimination

  • Loving v. Virginia (1373-1379).
  • Sex Discrimination (1407).
  • Craig v. Boren (1407-1416).
  • United States v. Virgnia (1416-1424).
  • Beyond Race and Sex (1425-1428).
  • “Fundamental Interests” (1441-1443).


Loving v. Virginia

Here are Mildred Delores Loving (nee Jeter)  and Richard Perry Loving. They had three children, Donald, Peggy, and Sidney.


Here is a video of a documentary about their case.

Reed v. Reed

sallyreedThe home of Sally Reed, the eponymous plaintiff of Reed v. Reed, in Boise, Idaho, bears this plaque.

It reads, in part:

Sally Reed lived here. Idaho and the Nation owes a lot to Sally Reed, who, though an unlikely hero, blazed a trail nationally for women’s rights with a 1971 U.S. Supreme Court victory. Sally lived in a two-story wood frame home from 1935 until 1999. After her divorce in 1958, from Cecil R. Reed, Sally made a modest living for herself and her son Richard, by caring for sick and disabled veterans in her own home. Skip’s death in 1967 led to competing petitions’ to administer his small estate. Idaho law at the time said in such cases “the male must be preferred over the female.”

Though she never sought the spotlight and didn’t realize the widespread significance of what she was doing, Sally’s basic instincts for right and wrong moved her to challenge this discriminatory law all the way to the U.S> Supreme Court, with the help of .  . . now U.S. Supreme Court Justice Ruth Bader Ginsburg, then a Rutgers University Law Professor and American Civil Liberties Union Volunteer.

The location at 1682 S Vista Ave in Boise is now an Angler shop.

Courtesy of Nick Korte.

Craig v. Boren

Here is a photograph take in 1996 on the 20th anniversary of Craig v. Boren.

The photo shows Fred Gilbert (criminal defense attorney who argued for Oklahoma), Carolyn Whitener (co-plaintiff and owner of Honk n Holler convenience store)
Justice Ginsburg (who argued the case), Curtis Craig (college student and co-plaintiff, now president of Explorer Pipeline Co.).

 This is the Honk-N-Holler Grocery store, where the light-beer was sold.

(Courtesy of Clare Cushman)

United States v. Virginia

This is the Virginia Military Institute.



Here are some of the first female cadets that graduated from VMI.


And here is Ruth Bader Ginsburg, also known as the Notorious R.B.G. (Yes, there is a tumblr)


And here is a picture of Scalia and Ginsburg riding an elephant in India.


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Mar 25, 2015

SCOTUS Rebuffs SG’s Request for Skidmore Deference to EEOC Guidance Issued *After* Cert Was Granted

In Young v. UPS, the Court rejected the positions of Young, UPS, and most importantly, the Solicitor General. In its brief, the SG urged the Court to grant Skidmore deference to EEOC Regulations.

The Solicitor General argues that we should give special, if not controlling, weight to this guideline. He points out that we have long held that “the rulings, interpreta- tions and opinions” of an agency charged with the mission of enforcing a particular statute, “while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944). See Brief for United States as Amicus Curiae 26.

Justice Breyer’s majority opinion soundly rebuffed this overture, finding the lack of “thoroughness” in the EEOC’s consideration’s “limit” its “power to persuade.

But we have also held that the “weight of such a judg- ment in a particular case will depend upon the thorough- ness evident in its consideration, the validity of its reason- ing, its consistency with earlier and later pronouncements, and all those factors that give it power to persuade, if lacking power to control.” Skidmore, supra, at 140. These qualifications are relevant here and severely limit the EEOC’s July 2014 guidance’s special power to persuade.

Specifically, the Court faults the EEOC for issuing the guidance *after* cert was granted.

We come to this conclusion not because of any agency lack of “experience” or “informed judgment.” Rather, the difficulties are those of timing, “consistency,” and “thor- oughness” of “consideration.” The EEOC promulgated its 2014 guidelines only recently, after this Court had granted certiorari in this case.

The Court stressed that the position taken after cert was granted was different from positions taken in the past.

In these circumstances, it is fair to say that the EEOC’s current guidelines take a position about which the EEOC’s previous guidelines were silent. And that position is inconsistent with positions for which the Government has long advocated. See Brief for Defendant-Appellee in Ensley-Gaines v. Runyon, No. 95– 1038 (CA6 1996), pp. 26–27 (explaining that a reading of the Act like Young’s was “simply incorrect” and “runs counter” to this Court’s precedents). See also Brief for United States as Amicus Curiae 16, n. 2 (“The Department of Justice, on behalf of the United States Postal Service, has previously taken the position that pregnant employees with work limitations are not similarly situated to em- ployees with similar limitations caused by on-the-job injuries”).


The government offers no explanation for this change of heart.

Nor does the EEOC explain the basis of its latest guidance. Does it read the statute, for example, as embodying a most-favored-nation status? Why has it now taken a position contrary to the litigation position the Government previously took? Without further explanation, we cannot rely significantly on the EEOC’s determination.

This creates a presumption that the regulation was issued for the purposes of this case.

This isn’t the first time the Court faulted the Solicitor General for changing the government’s position. A quick search of my archives (and I’m sure I’m missing some) reveals similar admonitions in Kiobel (arguments), Levin v. United States, and Myriad. Justice Scalia and the Chief comments during oral argument in Kiobel sums up the issue well:

JUSTICE SCALIA: — it was the responsibility of your predecessors as well, and they took a different position. So, you know, why — why should we defer to the views of — of the current administration?

GENERAL VERRILLI: Well, because we think they are persuasive, Your Honor.


CHIEF JUSTICE ROBERTS: Your successors may adopt a different view. And I think — I don’t want to put words in his mouth, but Justice Scalia’s point means whatever deference you are entitled to is compromised by the fact that your predecessors took a different position.

GENERAL VERRILLI: So, Mr. Chief Justice, let me be clear: In this case our position is that the Court ought not recognize a cause of action.

In any event, the SG is now on clear notice that the Court will not defer to these types of last-minute changes.

Walter Olson comments:

My other favorite bit came when the majority opinion smacked down the EEOC and the U.S. Department of Justice over the EEOC’s maximally liberal guidelines on pregnancy discrimination, which the commission hurriedly came out with last summer and which DoJ, through the Solicitor General, insisted were entitled to special weight before the Court. Writing for his liberal colleagues, Breyer rejected the guidelines on grounds of “timing, ‘consistency,’ and ‘thoroughness’ of ‘consideration,’” pointing out that they ran “contrary to the litigation position the Government previously took,” that they offered no coherent reading of the statute, and, pointedly, that the EEOC had put them out “only after the Court had granted certiorari in this case” – almost as if it had been trying to influence the Court.


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Mar 25, 2015

Disrespectful Dissents on the Roberts Court

At the end of Justice Scalia’s dissent in Alabama Legislative Black Caucus v. Alabama, he dropped the jurisprudential mic.

Accordingly, I dissent.

Much like Rodney Dangerfield, Justice Breyer’s majority opinion gets no respect. Justice Scalia is no stranger to the disrespectful dissent. A quick search on WestLaw for “I Dissent” with no “respect” since 2006 reveals a number of disrespectful dissents (this list is not complete):

  1. House v. Bell (2006) (Roberts, C.J., dissenting) (“The evidence as a whole certainly does not establish that House is actually innocent of the crime of murdering Carolyn Muncey, and accordingly I dissent.”
  2. Hamdan v. Rumsfield (2006) (Scalia, J., dissenting) (“For the foregoing reasons, I dissent.”).
  3. Uttecht v. Brown (2007) (Breyer, J., dissenting) (“For these reasons, I dissent.”).
  4. Gonzales v. Carhart (2007) (Thomas, J., concurring) (“I dissent from the Court’s disposition.”).
  5. Crawford v. Marion County Election Bd (2008)  (Breyer, J., dissenting) (“For these reasons, I dissent.”).
  6. U.S v. Santos (2008) (Breyer, J., dissenting) (“In light of these alternative possibilities, I dissent.”).
  7. Boumediene v. Bush (2008) (Scalia, J., dissenting) (“The Nation will live to regret what the Court has done today. I dissent.”).
  8. Yeager v. U.S. (2008) (Scalia, J., dissenting) (“Because that result neither accords with the original meaning of the Double Jeopardy Clause nor is required by the Court’s precedents, I dissent.”).
  9. Ricci v. DeStefano (2009) (Ginsburg, J., dissenting) (“I dissent from the Court’s judgment, which rests on the false premise that respondents showed “a significant statistical disparity,” but “nothing more.””).
  10. Shady Grove Orthopedia v. Allstate Ins. Co. (2010) (Ginsburg, J., dissenting) (“Because today’s judgment radically departs from that course, I dissent.”).
  11. Michigan v. Bryant (2011) (Scalia, J., dissenting) (“Because I continue to adhere to the Confrontation Clause that the People adopted, as described in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), I dissent.”).
  12. Arizona v. United States (2012) (Scalia, J., dissenting) (“Neither the Constitution itself nor even any law passed by Congress supports this result. I dissent.).
  13. United States v. Windsor (2013) (Scalia, J., dissenting) (“But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.”).
  14. E.P.A. v. EME Homer City Generation (Scalia, J., dissenting) (“I dissent.”).
  15. Town of Greece v. Galloway (2014) (Breyer, J., dissenting) (“I dissent from the Court’s decision to the contrary.”).
  16. Burwell v. Hobby Lobby (2014) (Ginsburg, J., dissenting) (“Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent.”)

In first place (surprising no one) is Justice Scalia with 8 disrespectful dissents (counting the Alabama case). Second place was Justice Breyer with 4. RBG had had 3. Thomas and the Chief each had one. The Chief’s dissent was in his first year on the Court! Interestingly, Justices Stevens, Souter, Alito, Sotomayor, and Kagan had zero. Again, my research was cursory, and I’m sure I missed some. Please feel free to add others in the comments.

Update: A note in the Harvard Law Review explores the “respectful dissent.”

The respectful dissent is the dominant speech act of the Roberts Court. According to Figure 2, this rhetoric manifested in nearly 70% of the individual principal dissenting opinions handed down during the 2005 to 2009 Terms, at one point rising to an impressive 83.7%. To give a more complete view of dissenting practice, however, this sec- tion focuses not on the default practice, but on those dissents that de- viate from the norm. Ultimately, this discussion of minority dissenting practices will add an important — and otherwise unseen — nuance to the legitimation rationale underlying the Court’s collegial dissents.

As Figure 2 demonstrates, there are two exceptions to the respect- ful dissent. First, there are the “assertive dissents” in which the pro- testing Justice writes only, “I dissent.”108 Here the Justice appropriates the traditional dissenting structure, but foregoes the respectful rhetoric.

Second, there is a broad category of “other,” which includes procedural statements,111 rhetorical variations on the speech act not couched in the language of dissent,112 and — as is sometimes the case — no speech act at all.113 As a threshold matter, the very existence and use of these alternative speech acts does not detract from — but rather adds to — the robustness of the respectful default. A dissenting re- gime without alternatives would be not only artificial, but also imprac- tical and unwise — impractical because not every conflict between dis- senter and majority need elicit a personal statement of disagreement114 and unwise because sustained, unthinking usage of the rhetoric of re- spect might obviate the effect of that speech act.115



And observations:

The implications for the collegial norm and the respectful dissent as legitimating tools are twofold. First, the choice to dissent assertively — to appropriate the form, but not the respectful rhetoric, of the dom- inant speech act — implicitly recognizes the respectful dissent’s ability to legitimate the majority decision. This idea rests on the intuitive claim that an assertive dissent is ultimately an act of protest, a signal from one Justice to the world at large that the majority opinion does not deserve legitimation — that the majority has acted impermissibly and produced significant costs for political society.124 It follows that if the dissenter believes that the use of “I dissent” is to deny or weaken the majority’s legitimacy, the inverse must also be true: to say “I res- pectfully dissent” is to convey legitimacy. In other words, the assertive dissenter has engaged — and therefore embraced — the positive bene- fits of collegial norms and the respectful dialogue through his choice of form and language. Second, this observation further suggests that the dissenting Justice believes that the Court’s legitimacy is, when he writes, relatively secure. If it were otherwise, the Court would not be able to sustain the occasional, vigorous criticism.

H/T Kedar Bhatia

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Mar 25, 2015

Breyer: SCOTUS Could Rely on Lodged Affidavit To Prove Standing; Scalia Dissents

During the standing debate over King v. Burwell, some argued that the challengers should file an affidavit with the Court to prove the plaintiffs still have standing. Was this even possible? In Alabama Legislative Black Caucus v. Alabama, Justice Breyer found that the Caucus had standing. But in doing so, he observed that if there were any doubts, the Court could rely on lodged affidavits parties to prove standing.

To be sure, the District Court had an independent obli- gation to confirm its jurisdiction, even in the absence of a state challenge. See post, at 4–5 (SCALIA, J., dissenting). But, in these circumstances, elementary principles of procedural fairness required that the District Court, rather than acting sua sponte, give the Conference an oppor- tunity to provide evidence of member residence. Cf. Warth v. Seldin, 422 U. S. 490, 501–502 (1975) (explaining that a court may “allow or [r]equire” a plaintiff to supplement the record to show standing and that “[i]f, after this opportu- nity, the plaintiff’s standing does not adequately appear from all materials of record, the complaint must be dismissed” (emphasis added)). Moreover, we have no reason to believe that the Conference would have been unable to provide a list of members, at least with respect to the majority-minority districts, had it been asked. It has filed just such a list in this Court. See Affidavit of Joe L. Reed Pursuant to this Court’s Rule 32.3 (Lodging of Conference affidavit listing members residing in each majority- minority district in the State); see also Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 718 (2007) (accepting a lodged affidavit in similar circumstances). 

Rule 32.3 of the Court provides ways for parties to “lodge non-record material” with the Court:

3. Any party or amicus curiae desiring to lodge non-rec­ ord material with the Clerk must set out in a letter, served on all parties, a description of the material proposed for lodg­ ing and the reasons why the non-record material may prop­ erly be considered by the Court. The material proposed for lodging may not be submitted until and unless requested by the Clerk.

The Chief Justice cited this provision in Parents Involved to show that the members of the group still had standing:

This argument is unavailing. The group’s members have children in the district’s elementary, middle, and high schools, App. in No. 05–908, at 299a–301a; Affidavit of Kathleen Brose Pursuant to this Court’s Rule 32.3 (Lodging of Petitioner Parents Involved), and the complaint sought declaratory and injunctive relief on behalf of Parents Involved members whose elementary and middle school children may be “denied admission to the high schools of their choice when they apply for those schools in the future,” App. in No. 05–908, at 30a.

Justice Scalia, in his dissent, responds forcefully to this suggestion, claiming that Parents Involved concerned organizational standing, while the Caucus is showing individual standing:

The Court points to Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 718 (2007), as support for its decision to sandbag Alabama with the Democratic Conference’s out-of-time (indeed, out- of-court) lodging in this Court. The circumstances in that case, however, are far afield. The organization of parents in that case had established organizational standing in the lower court by showing that it had members with children who would be subject to the school district’s “integration tiebreaker,” which was applied at ninth grade. Brief for Respondents, O. T. 2006, No. 05–908, p. 16. By the time the case reached this Court, however, the youngest of these children had entered high school, and so would no longer be subject to the challenged policy. Ibid. Accord- ingly, we accepted a lodging that provided names of addi- tional, younger children in order to show that the organi- zation had not lost standing as a result of the long delay that often accompanies federal litigation. Here, by con- trast, the Democratic Conference’s lodging in the Supreme Court is its first attempt to show that it has members in the majority-minority districts. This is too little, too late.

I couldn’t read this without thinking about King v. Burwell. At this point, I imagine the Justices (RBG excepted) are satisfied that at least one Plaintiff in King v. Burwell has standing. But the Court may be putting litigants on notice in the future that any doubts about standing could be resolved under Rule 32.3. Rule 32.3 speaks of a party “desiring to lodge non-record material,” though I see no reason the Court couldn’t order such a lodging sua sponte.

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Mar 24, 2015

New in National Review: DAPA Is Not About National Security

On appeal to the 5th Circuit, the Obama Administration has pivoted, ever so slightly, in its defense of DAPA. Now, the government claims that DAPA is essential to national security, and that unless Judge Hanen’s order is put on hold, the government will be unable to secure the border and the homeland. In short, this argument is false. Absolutely nothing in Judge Hanen’s order prevents the government from taking these steps. No one must be deported. Rather, they are only prohibited from granting deferred action, which is accompanied by myriad benefits from work authorization to the earned income tax credit. This is the theme of my new piece in National Review. Here is the introduction:

Believe it or not, President Obama says his executive action on immigration isn’t actually about immigration — it’s about enhancing national security. In order to help Homeland Security agents quickly distinguish dangerous immigrants from those who pose no threat, the president had to grant, he claims, quasi-legal status to 5 million immigrants. Once the immigrants sign up, his argument goes, they will undergo background checks and receive a biometric ID, making it a lot easier for DHS agents to identify them. Oh, and by the way, because halting millions of deportations was not reason enough to coax immigrants to “come out of the shadows,” the president will approve virtually every single applicant for work authorization, Social Security benefits, and even the earned income-tax credit, as an “incentive” to sign up. It’s all part of keeping our nation secure. Remarkably, this is exactly how President Obama legally justifies his DAPA (Deferred Action for Parental Accountability) program.

This Rube Goldbergesque contortion of logic, premised on a “complete abdication” of the law, is the best defense the Justice Department can muster for why this policy should go into effect immediately. If you believe that this was the real reason behind DAPA — and not a scheme to implement an immigration policy that Congress expressly rejected — then I have a bridge to sell you. While Congress generally has broad latitude in choosing the means to accomplish legitimate policy goals, the executive, when acting unilaterally to disregard the law, should not receive such deference. This national-security smokescreen should be rejected by the courts.

While Congress can, under the necessary and proper clause, choose the means with which to accomplish certain ends, the President, when acting unilaterally in the absence of Congress, cannot pick and choose how he wants to set immigration policy. A point I didn’t make in the article, is the entire business of using work authorization as an “incentive” is the essence of setting policy, which is the prerogative of Congress. While Congress did authorize employment authorization for those with deferred action, this is NOT how Congress designed it. If memory serves, before DACA, roughly 5,000 people received deferred action annually. Then the number shot up to a million.

In the context of an injunction, the government will not be able to show the district court’s order prevents them from accomplishing the very tasks they set out to accomplish.

Since the seminal case of McCulloch v. Maryland, authored by Chief Justice John Marshall, Congress has had wide latitude when choosing how to accomplish its objectives: “If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may constitutionally be employed to carry it into effect.” In other words, courts defer to Congress when it chooses one approach over another to accomplish legitimate policy goals. But we should not lose sight of the fact that DAPA is not an act of Congress, but a unilateral exertion of executive power. Rather than representing the wisdom of Congress — the branch that can set policy — DAPA amounts to a brazen effort to rewrite the law in the president’s own image. The implausible “national security” argument — which is entirely at odds with anything Congress has ever thought of — solidifies the gap between the executive and the legislative branches. If Congress were to pass a statute that provided work benefits to undocumented immigrants to promote national security, some might doubt its efficacy, but the judiciary would have no license to question its wisdom. DAPA presents an entirely different calculus. To determine whether the president is adhering to his constitutional duty to “take care that the laws be faithfully executed,” we must determine whether the president is acting in good faith to comply with the laws, or deliberately deviating from them to achieve a contrary policy. The president’s own flimsy arguments in court, which crumble under the laxest scrutiny, demonstrate what DAPA is really about. The judiciary need not defer to this tendentious position, and should recognize it for what it is — a mere smokescreen to allow the president to write his own laws.

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Mar 24, 2015

5th Circuit Sets Oral Argument for DAPA Appeal for April 17

Today the 5th Circuit issued an order, setting oral arguments in Texas v. United States for April 17 in New Orleans.

The court will hear oral argument on the motion for stay pending appeal, as well as any other motions that may be pending by that time, on Friday April 17 at 10:00am in New Orleans. Each side will be allowed one hour for argument. Because, under the briefing schedule set forth above, the court will have the benefit of the appellants’ opening merits brief but presumably not the appellees’ merits brief, the appellees are permitted (but not required) to file, by April 14, a separate brief of not more than 6000 words, limited to responding to any matters addressed in the appellants’ opening merits brief that pertain to the motion for stay pending appeal.

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Mar 24, 2015

Did the 14th Amendment (1868) Nullify the “Natural Born Citizen” Clause (1789)?

A general principle of constitutional law is that later-in-time amendments modify earlier provisions. The classic example is the 3/5 Clause. The 14th Amendment nullified that provision, notwithstanding Dred Scott (Update: As Ed Whelan points out, the 13th Amendment eradicated the 3/5 clause, as there were no longer “other persons” to count once slavery was eradicated. Likewise, the express terms of section 2 of the 14th Amendment nullify the 3/5 clause). The 11th Amendment removed grants of jurisdiction in Article III where a state could be sued by a foreign citizen. The 12th Amendment modified how the President is selected. The 14th Amendment abrogated state sovereign immunity protected by the 10th Amendment. The 21st Amendment (thankfully) repealed prohibition under the 18th Amendment. And so on. No court cases were needed to invalidate these earlier provisions. The Court seems to have recognized that the clauses were struck by operation of Article V.

Of late, the “Natural Born Citizen” clause has been in the news. (Let’s put aside for the moment the statutory arguments concerning Ted Cruz.). The clause on its face is a classification on the basis of nationality at birth. Only those people who were born in the United States can run for President. This seems incompatible with the 14th Amendment.

Imagine if Congress passed a statute that limited a government job to a person born in America–no babies from Europeans or Africans or Asians could apply. Only those people born in the United States would eligible. Naturalized citizens need not apply. I think everyone would agree that law would be unconstitutional under modern Equal Protection caselaw. This suspect classification (national origin, and specifically the nationality at birth) would be subject to strict scrutiny, and the statute would be invalidated.

So why would a similar provision in the Constitution of 1789 escape the 14th Amendment? The mere fact that the “Natural Born Citizen” clause is in the Constitution does not make it immutable. The 14th Amendment already jettisoned the 3/5 clause. Why not this other discriminatory provision?

One rejoinder is that the Constitution also limits the qualifications for the Senate and the House to those who have been citizens for a number of years. Under our modern equal protection case law, classifications on citizenship are tolerated in certain contexts–especially in cases of governmental service. Also, by virtue of the 14th Amendment, a person can become a citizen. In stark contrast, a person can never change his nationality at birth. That is the essence of an immutable characteristic. Rather, the candidate is judged entirely on the basis of his nationality. An immigrant is permanently disqualified from holding the office of the Presidency, while an immigrant who is naturalized could run for the House or Senate in a number of years.

I don’t see how the “Natural Born Citizen Clause” survived the 14th Amendment.

Update: Ed Whelan, who calls my idea “silly,” makes an important point:

My argument is premised on case law interpreting the text of the Constitution–not the original meaning of the 14th Amendment. The 14th Amendment, on its face, doesn’t impose bans on classifications based on nationality, or gender, or race, or anything for that matter. It only speaks of “equal protection,” whatever that is. For that matter, the entire notion of “strict scrutiny” is a judicial creation. Ed chalks all of this up to “living constitutionalism” and contends that caselaw cannot render an express provision of the Constitution void. Ed writes that this means the caselaw is wrong.

This seems another leg in the ongoing debate about judicial supremacy and departmentalism, which I hadn’t meant to address in this post, but I suppose it is inevitable. If we accept that the Supreme Court is the final (but not sole) expositor of the Constitution, then we accept that “strict scrutiny” and “suspect classifications” are the meaning of the 14th Amendment. In this limited sense, the “natural born citizen” clause is incompatible with how the Court has interpreted the 14th Amendment. But this is not the only way to read the 14th Amendment. If we reject this view, then there’s no problem.

A simpler answer is that we can argue that earlier provisions of the Constitution can only be voided by a clear, explicit textual provision–such as the 11th or 21st Amendment. I’ll need to give more thought to this, as I (much to Ed’s chagrin) take modern equal protection as a given. But it’s true that provisions should not be repealed by implication (as Eric Segall noted).

Update 2: Christopher Green points out that in Knauer v. United States (1946), the Court per Justice Douglas pointed out that the “Natural Born Citizen” clause is an exception to the general rule:

Citizenship obtained through naturalization is not a second-class citizenship. It has been said that citizenship carries with it all of the rights and prerogatives of citizenship obtained by birth in this country “save that of eligibility to the Presidency.” Luria v. United States,231 U. S. 9, 231 U. S. 22. There are other exceptions of a limited character. [Footnote 3] But it is plain that citizenship obtained through naturalization carries with it the privilege of full participation in the affairs of our society, including the right to speak freely, to criticize officials and administrators, and to promote changes in our laws, including the very Charter of our Government. Great tolerance and caution are necessary lest good faith exercise of the rights of citizenship be turned against the naturalized citizen and be used to deprive him of the cherished status. Ill-tempered expressions, extreme views, even the promotion of ideas which run counter to our American ideals, are not to be given disloyal connotations in absence of solid, convincing evidence that that is their significance. Any other course would run counter to our traditions, and make denaturalization proceedings the ready instrument for political persecutions.


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Mar 24, 2015

ConLaw Class 18 – Affirmative Action

The lecture notes are here. The live chat is here.

Affirmative Action

  • Affirmative Action (1386-1389).
  • Grutter v. Bollinger (1389-1401).
  • Notes (1401-1405).
  • Fisher v. University of Texas, Austin (2013).
  • Affirmative Action Outside Education (1405-1407).
  • Schuette v. Coalition to Defend Affirmative Action (2014) (To be posted).

Palmer v. Thompson

Rather than desegregate a swimming pool, the city of Jackson, Mississippi filled it with cement.


Michigan Affirmative Action Cases

This is Jennifer Gratz, the lead plaintiff in Gratz v. Bollinger:



This is the University of Michigan Office of Undergraduate Admission.


This is the University of Michigan Law School Admission Office.umlaw-admissions

Abigail Fisher v. University of Texas, Austin

This is Abigail Fisher of Sugarland, Texas

This is the University of Texas, Austin.

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Mar 23, 2015

Video: Justice Kennedy Testifies about Gridlock and the Supreme Court

During his testimony before the House, Justice Kennedy was asked to discuss the politicization of the judiciary. His response, which I think bears on the issue in King v. Burwell, focused on how the Courts presume that all three branches of the government are functioning, and that “gridlock” should not impact whether the Court invalidates statutes.


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Mar 23, 2015

Justice Kennedy Discusses Gridlock During Hill Testimony. Yes, there is a King v. Burwell connection

During his annual visit across First Street, Justice Kennedy weighed in on one of our favorite topics–the relationship between judicial review and gridlock. Here is a (really) rough transcript, as I feverishly tried to type down what he was saying (around 4:05 ET).

Some argue that gridlock should effect the way we interpret statutes. That seems to me the wrong proposition. We have to assume that we have 3 fully functioning branches of the government, committed to proceeding in good faith in good faith to resolve the problems of this Republic

I’ll post the complete transcript later when I can. Chris Geidner and Lawrence Hurley also picked up on it.

Update: Here is the transcript from CSPAN closed captions:


Video is here.

Kennedy’s comments bear on an exchange that came up during King v. Burwell where the SG told the Court that “this Congress” would not fix the ACA if the Court invalidated the IRS Rule. AMK does not seem persuaded by the argument that the Court should consider whether Congress will, or will not fix the law. This does not bode well for the government.

I repeat here something I wrote on argument day in King v. Burwell.

One of the more jarring exchanges today at oral arguments in King v. Burwell was between Justice Scalia and Solicitor General Verrilli. Justice Scalia said that if this statute doesn’t work, Congress can fix it.

We all know the odds of this happening are slim–though reconciliation may be an option to get beyond the filibuster and force the President’s veto–and reflects what Richard Re has called the “Doctrine of One Last Chance.” (I discussed it here in the context of Pruitt v. Burwell). Like in Shelby County, the Court can give Congress a task they know they won’t do. We all know this. But the Solicitor General is not supposed to acknowledge it. But acknowledge it, he did.

JUSTICE SCALIA: What about ­­ what about Congress? You really think Congress is just going to sit there while ­­ while all of these disastrous consequences ensue.

I mean, how often have we come out with a decision such as the ­­ you know, the bankruptcy court decision? Congress adjusts, enacts a statute that ­­ that takes care of the problem. It happens all the time. Why is that not going to happen here?

GENERAL VERRILLI: Well, this Congress, Your Honor, I ­­ I ­­


You can’t tell from the transcript, but Verrilli said it very sarcastically, with the stress on “this.” As in, “are you kidding me? This Congress? Fix something? Ha.” I heard a slight chuckle in his voice.

Nancy Pelosi, who was sitting 3 seats away from me, shook her head at this line. It’s okay for Pelosi to make these points, but not the Solicitor General at the lectern.


After the laughter, Verrilli dug his hole deeper.

GENERAL VERRILLI: You know, I mean, of course, theoretically ­­ of course, theoretically they could.

This was also said with a slight chuckle.

Justice Scalia, who seemed visibly offended by this comment, replied sharply.

JUSTICE SCALIA: I ­­ I don’t care what Congress you’re talking about. If the consequences are  as disastrous as you say, so many million people  without ­­ without insurance and whatnot, yes, I think this Congress would act.

I found it entirely inappropriate for the SG to say this. This wasn’t impromptu, but was no doubt a rehearsed line. And it wasn’t necessary to his argument. This was a political comment, not a legal one. It was beneath the Office to dignify these partisan concerns. Verrilli, whom I defended in my book (against the currents) undermined his credibility with these two remarks. He should not have said them.

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Mar 23, 2015

Liptak: “Liberals used to love the First Amendment.”

Over the years on these pages I have described a shift in views towards the First Amendment and free speech–liberals moving away from it, and conservatives trending towards it. I will be presenting a paper on this topic in May at the Yale Law School Free Expression Conference, titled “Collective Liberty.” In the Times, Adam Liptak has an insightful piece that puts some empirical bite behind this thesis.

Liberals used to love the First Amendment. But that was in an era when courts used it mostly to protect powerless people like civil rights activists and war protesters.

These days, a provocative new study says, there has been a “corporate takeover of the First Amendment.” The assertion is backed by data, and it comes from an unlikely source: John C. Coates IV, who teaches business law at Harvard and used to be a partner at Wachtell, Lipton, Rosen & Katz, the prominent corporate law firm.

“Corporations have begun to displace individuals as the direct beneficiaries of the First Amendment,” Professor Coates wrote. The trend, he added, is “recent but accelerating.”

Liptak also looks to the works of Tim Wu and Burt Neuborne who exhibit the new left-wing skepticism of the First Amendment.

Tim Wu, a law professor at Columbia,described the shift in First Amendment doctrine in 2013 in The New Republic.

“Once the patron saint of protesters and the disenfranchised, the First Amendment has become the darling of economic libertarians and corporate lawyers who have recognized its power to immunize private enterprise from legal restraint,” Professor Wu wrote.

“Madison’s Music,” a new book by Burt Neuborne, a law professor at New York University, gives a detailed history of the transformation of First Amendment law. In his account, “the American right discovered the First Amendment” in the early 1970s.

“An expansive conception of free speech became attractive to Republican justices,” he wrote, “both because robust free-speech protections fit neatly into the right’s skeptical, deregulatory approach to government generally, and because it energized vigorous transmission by powerful speakers of the right’s newly energized collection of ideas.”

Those conservative justices, Professor Neuborne wrote, found willing allies in liberal justices long committed to free speech.

During a discussion with Justice Sotomayor at NYU, Neuborne seemed to embrace Justice Breyer’s notion of “collective” liberty, protecting speech only so long as it promotes democracy:

Sotomayor pressed Neuborne particularly on the adjudication of democracy. “You say that the focus of the First Amendment is democracy,” she said. “You invite your thesis as a different way of interpreting the Constitution. So who decides what promotes democracy? People disagree about it all the time. How do you define democracy? Is it something like one person, one vote? What are its structures?”

“I’m sort of shocked that you asked that, because it’s clear that I define it,” said Neuborne jokingly, to audience laughter. But Sotomayor prevailed with the wry rejoinder, “No, no, no, you forget, I do,” prompting an eruption of mirth and applause.

Turning to the justice’s question, Neuborne referred to an exchange between Chief Justice John Roberts and Justice Stephen Breyer in McCutcheon v. Federal Election Commission, which invalidated federal campaign contribution limits for individual donors on First Amendment grounds. In Breyer’s dissent, he argued the ruling was a blow to democracy, while Roberts responded that the Court’s business was merely to enforce the First Amendment, and better democracy could be obtained through amending the Constitution.

“I don’t know what will be the final denouement of a judicial discussion about whether unlimited campaign spending is the best way to have a good democracy or a bad democracy,” said Neuborne. “But I would rather have judges asking that question among themselves than pretending to decide the case by deciding what seven words mean—‘Congress shall make no law abridging speech’—and having it be sort of automatic, without even thinking about the consequences for democracy.”

Liptak closes with the conflicting view of the liberal old guard–Larry Tribe and Floyd Abrams–who now stand increasingly alone on the left in defense of free speech.

In a recent essay, Laurence H. Tribe, a law professor at Harvard, offered a cautious partial defense of the Citizens United decision. But he said it was an instance of a larger phenomenon.

“It is part of a trend in First Amendment law that is transforming that body of doctrine into a charter of largely untrammeled libertarianism,” he wrote, “in which the regulation of virtually all forms of speech and all kinds of speakers is treated with the same heavy dose of judicial skepticism, with exceptions perversely calculated to expose particularly vulnerable and valuable sorts of expression to unconvincingly justified suppression.”

Professor Tribe gave examples of the sorts of people whose First Amendment arguments have not fared well in the Roberts court: students, prisoners, pacifists and whistle-blowers.

Floyd Abrams, a leading First Amendment lawyer who has defended The New York Times and was on the winning side in Citizens United, reflected on the trend toward protecting the powerful in a speech last week at Temple University.

“There is truth in the proposition that a number of recent First Amendment victories in recent years have been on behalf of the ‘haves’ — some of them corporations, some individuals,” he said. “But that is no basis for concluding that the decisions were wrongly analyzed or wrongly decided.”

Ron Collins and Howard Wasserman have also chronicled this issue at some length. Stay tuned for more.

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