Here is the Houston Chronicle article discussing the 5th Circuit’s decision in Fisher v. Texas part deux.
Tuesday’s ruling upholds the court’s earlier decision that UT did no such thing. Fisher appealed the earlier decision to the Supreme Court, which last year sent the case back to the 5th Circuit with instructions to apply a stricter test to the validity of UT’s policy.
That the 5th Circuit stuck with its original decision is not surprising, and the ruling doesn’t get the case much closer to a conclusion, experts said, as Fisher plans to appeal. Still, the ruling is significant, said Josh Blackman, an assistant professor of law at the South Texas College of Law in Houston.
“This does send a signal to other universities outside of this region who may seek to use a similar policy of affirmative action,” Blackman said.
In NLRB v. Noel Canning, the Solicitor General argued that the President’s reading of the recess appointment power was justified as a “safety valve” in response to “congressional intransigence.” All nine Justices emphatically rejected this position, finding the President’s three appointments, made during a three-day break, could not be saved because of an obstructionist Senate. Yet, the reliance on “congressional intransigence” as a rationale for broadly interpreting inherent executive powers has been a hallmark of the Obama Presidency. As part of his “We Can’t Wait” platform, President Obama routinely cites Congress’s obstinacy to his agenda as a justification to engage in a series of executive actions that suspend, waive, and even rewrite statutes. The lesson from Noel Canning is clear—congressional intransigence does not allow the president to flex his inherent Article II powers, as a means to release a safety valve of pressure in Congress.
My new article, “Congressional Intransigence and Executive Power,” places the Court’s unanimous holding in Noel Canning in the context of the President’s unilateral action with respect to the Affordable Care Act, Deferred Action immigration policy, as well as the prisoner trade for Sgt. Bowe Bergdahl, and the “hostilities” in Libya. For each decisive inaction, in the face of with congressional opposition, the President executes at his “lowest ebb,” and warrants the closest scrutiny. In the domestic affairs context, the President can rely only on his inherent “policy powers,” which reside below Justice Jackson’s third Youngstown tier, in the fourth zone of “insight.”
I welcome all feedback and comments on this article, which is increasingly timely in light of recent developments about the proposed lawsuit challenging the President’s suspension of the ACA (which I did not address in this article).
Today the 5th Circuit, on remand from the Supreme Court, upheld UT Austin’s Affirmative Action policy. Here is the 69-page opinion. In short, the majority was persuaded by the evidence adduced by UT about the validity of its affirmative action plan. Judge Garza dissented.
Here is the introduction:
Abigail Fisher brought this action against the University of Texas at Austin,1 alleging that the University’s race-conscious admissions program violated the Fourteenth Amendment. The district court granted summary judgment to UT Austin and we affirmed. The Supreme Court vacated and remanded, holding that this Court and the district court reviewed UT Austin’s means to the end of a diverse student body with undue deference; that we must give a more exacting scrutiny to UT Austin’s efforts to achieve diversity. With the benefit of additional briefing, oral argument, and the ordered exacting scrutiny, we affirm the district court’s grant of summary judgment.
Here is the conclusion of the majority:
In sum, it is suggested that while holistic review may be a necessary and ameliorating complement to the Top Ten Percent Plan, UT Austin has not shown that its holistic review need include any reference to race, this because the Plan produces sufficient numbers of minorities for critical mass. This contention views minorities as a group, abjuring the focus upon individuals— each person’s unique potential. Race is relevant to minority and non-minority, notably when candidates have flourished as a minority in their school— whether they are white or black. Grutter reaffirmed that “[j]ust as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race still matters.” We are persuaded that to deny UT Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience in contradiction of the plain teachings of Bakke and Grutter. The need for such skill sets to complement the draws from majority-white and majority-minority schools flows directly from an understanding of what the Court has made plain diversity is not. To conclude otherwise is to narrow its focus to a tally of skin colors produced in defiance of Justice Kennedy’s opinion for the Court which eschewed the narrow metric of numbers and turned the focus upon individuals. This powerful charge does not deny the relevance of race. We find force in the argument that race here is a necessary part, albeit one of many parts, of the decisional matrix where being white in a minority-majority school can set one apart just as being a minority in a majority-white school—not a proffer of societal discrimination in justification for use of race, but a search for students with a range of skills, experiences, and performances—one that will be impaired by turning a blind eye to the differing opportunities offered by the schools from whence they came.
It is settled that instruments of state may pursue facially neutral policies calculated to promote equality of opportunity among students to whom the public schools of Texas assign quite different starting places in the annual race for seats in its flagship university. It is equally settled that universities may use race as part of a holistic admissions program where it cannot otherwise achieve diversity. This interest is compelled by the reality that university education is more the shaping of lives than the filling of heads with facts—the classic assertion of the humanities. Yet the backdrop of our efforts here includes the reality that accepting as permissible policies whose purpose is to achieve a desired racial effect taxes the line between quotas and holistic use of race towards a critical mass. We have hewed this line here, persuaded by UT Austin from this record of its necessary use of race in a holistic process and the want of workable alternatives that would not require even greater use of race, faithful to the content given to it by the Supreme Court. To reject the UT Austin plan is to confound developing principles of neutral affirmative action, looking away from Bakke and Grutter, leaving them in uniform but without command—due only a courtesy salute in passing.
Here is the beginning of Judge Garza’s dissent:
In vacating our previous opinion, Fisher v. Univ. of Tex. at Austin, 631 F.3d 213 (5th Cir. 2011), the Supreme Court clarified the strict scrutiny standard as it applies to cases involving racial classifications in higher education admissions: Now, reviewing courts cannot defer to a state actor’s argument that its consideration of race is narrowly tailored to achieve its diversity goals. Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 2420 (2013). Although the University has articulated its diversity goal as a “critical mass,” surprisingly, it has failed to define this term in any objective manner. Accordingly, it is impossible to determine whether the University’s use of racial classifications in its admissions process is narrowly tailored to its stated goal— essentially, its ends remain unknown. By holding that the University’s use of racial classifications is narrowly tailored, the majority continues to defer impermissibly to the University’s claims. This deference is squarely at odds with the central lesson of Fisher. A proper strict scrutiny analysis, affording the University “no deference” on its narrow tailoring claims, compels the conclusion that the University’s race- conscious admissions process does not survive strict scrutiny.
And the conclusion:
The material facts of this case have remained unchanged since the district court’s grant of summary judgment, but the governing law has changed markedly. Fisher established that strict scrutiny in the higher education affirmative action setting is no different than strict scrutiny in other equal protection contexts—the state actor receives no deference in proving that its chosen race-conscious means are narrowly tailored to its ends. The majority fails to give Fisher its proper weight. Today’s opinion sidesteps the new strict scrutiny standard and continues to defer to the University’s claims that its use of racial classifications is narrowly tailored to its diversity goal. Because theUniversity has not defined its diversity goal in any meaningful way—instead, reflexively reciting the term “critical mass”—it is altogether impossible to determine whether its use of racial classifications is narrowly tailored. This is not to say, however, that it is impossible for a public university to define its diversity ends adequately for a court to verify narrow tailoring with the requisite exacting scrutiny. After all, “[s]trict scrutiny must not be strict in theory but fatal in fact.” Fisher, 133 S. Ct. at 2421 (internal quotations omitted). It may even be possible for a university to do so while seeking a “critical mass.” What matters now, after Fisher, is that a state actor’s diversity goals must be sufficiently clear and definite such that a reviewing court can assess, without deference, whether its particular use of racial classifications is necessary and narrowly tailored to those goals. On this record, the University has not “offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.” Fisher, 133 S. Ct. at 2421. Accordingly, I would reverse and render judgment for Fisher.
This just may go back to the Supreme Court, one more time.
One of the themes I tried to develop in The Shooting Cycle is how we react to different types of mass casualties. For random mass shootings, in places where middle-class America might frequent, deaths are treated very seriously. For random mass shootings on the wrong side of town, where middle-class America would never frequent, deaths are often disregarded.
NPR has a detailed piece about murders in Chicago that explores similar themes. Specifically, the “templates” through which we view different types of mass shootings.
We have a default template for the way we process mass shootings. We scour through every available scrap of the perpetrators’ interior lives – Facebook postings, YouTube videos, interviews with former roommates — to try to find out what drove them to kill. The sites of the massacres become a kind of shorthand: Columbine, Sandy Hook, Fort Hood. We conduct protracted, unsatisfying conversations about gun rights, and about mental illness, and about how we have to make sure that they never happen again.
We also have a template for the kind of carnage we saw in Chicago last weekend, in which at least 80 people were shot in 21 separate shooting incidents. At least 14 people died. The conversation and the coverage here is different, less probing. There are no attempts to illuminate the killer’s psyche, no news coverage of the anniversaries of the shootings. These incidents are generally not treated as discrete events, but as part of a grim, undifferentiated parade of violence in the Chi. It’s a war zone. Welcome to Chiraq. Send in the National Guard.
What these templates have in common is that they blunt the contours of individual lives and their particular, tragic ends.
We have templates that we superimpose on Chicago and places like it. These templates distort the ways violence comes to bear on individual lives, obscure the patterns that come with that violence, and shape the ways we think about ameliorating it. These are each human-scale tragedies worthy of human-scale consideration. To really understand what happened in Chicago last weekend, we have to be able both to see those shootings as mass shootings, and to see the lives they shatter.
The article discusses further how we frame different types of deaths.
I asked Lansu about how the city’s violence is typically handled in the news media. “In general, most of the stories [in the local media] aren’t focused on the victims,” Lansu said. “That’s not always the case, but the statistics kind of take the lead.”
He went on: “I think the national media only pays attention to Chicago when its an issue of sheer numbers.” But even then, the terminology is still different. “In Chicago, there were [seven] people shot outside of a laundromat, and no one uses the term ‘mass shooting,’” he said, referring to an incident there in June.(There is no official FBI definition for a “mass shooting,” Mother Jones says, although there is one for “mass murder.”)
Shootings perceived as random get more attention, Lansu said. “At the movie theater shooting [in Aurora, Colo.], the theater-goers weren’t going into the theater assuming they were going to be shot. The shooting outside of the laundromat, to me, is much more related to the movie theater. The people in Chicago at the laundromat weren’t expecting to be shot, either.”
It brings to mind the news coverage of the shooting at a Mother’s Day parade in New Orleans last year. Nineteen people were shot, but it, too, was treated as just an especially bloody day in an especially bloody city.
It’s a point that was underlined in a much-discussed column written by David Dennis for theGuardian about the New Orleans incident.
I’ve learned to redefine what constitutes an American tragedy. American tragedies occur where middle America frequents every day: airplanes, business offices, marathons. Where there persists a tangible fear that this could happen to any of us. And rightfully so. Deaths and mayhem anywhere are tragic. That should always be the case. The story here is where American tragedies don’t occur.
American tragedies don’t occur on the southside of Chicago or the New Orleans 9th Ward. They don’t occur where inner city high school kids shoot into school buses or someone shoots at a 10-year old’s birthday party in New Orleans. Or Gary, Indiana. Or Compton. Or Newport News. These are where the forgotten tragedies happen and the cities are left to persevere on their own.
It’s worth a close read.
In its opening brief in Klayman v. Obama, the United States cited Riley v. California, noting that the case was limited to search incident to arrest, and did not implicate “inspection of aggregated digital information.” In other words, the government argued, Riley did not cast any doubt on Smith v. Maryland:
The preliminary injunction under review in these appeals concerns solely telephony metadata and has nothing to do with uses for cell phones beyond calling.17
17 The Supreme Court made clear in Riley that “[b]ecause . . . these cases involve searches incident to arrest, these cases do not implicate the question whether the collection or inspection of aggregated digital information amounts to a search under other circumstances.” 134 S. Ct. 2489 n.1 (emphasis the Court’s). The question here, by contrast, is whether obtaining telephony metadata is a “search” at all. See id. at 24 (refusing to apply Smith because “[t]here is no dispute here that the officers engaged in a search”). The purpose and operation of the Section 215 telephony-metadata program, moreover, differ critically from the searches of a cell phone’s content incident to arrest in Riley. For example, the Section 215 telephony-metadata program is conducted pursuant to orders issued by the Foreign Intelligence Surveillance Court, and review of the metadata requires a showing of reasonable suspicion, whereas the cell-phone searches at issue in Riley were conducted without any judicial authorization or threshold showing of suspicion.
I previously noted that the Court seemed to cite Smith favorably in Riley.
We also reject the United States’ final suggestion that officers should always be able to search a phone’s call log, as they did in Wurie’s case. The Government relies on Smith v. Maryland, 442 U. S. 735 (1979), which held that no warrant was required to use a pen register at telephone company premises to identify numbers dialed by a particu- lar caller. The Court in that case, however, concluded that the use of a pen register was not a “search” at all under the Fourth Amendment. See id., at 745–746. There is no dispute here that the officers engaged in a search of Wurie’s cell phone. Moreover, call logs typically contain more than just phone numbers; they include any identify- ing information that an individual might add, such as the label “my house” in Wurie’s case.
The WSJ profiles my newly-adopted hometown of Houston, and why it has been such an economic engine:
A host of newcomers—immigrants and transplants from around the United States—agree. The city’s low cost of living and high rate of job growth have made Houston and its surrounding metro region attractive to young families. According to Pitney Bowes, PBI +2.11% Houston will enjoy the highest growth in new households of any major city between 2014 and 2017. A recent U.S. Council of Mayors study predicted that the American urban order will become increasingly Texan, with Houston and Dallas-Fort Worth both growing larger than Chicago by 2050.
Houston’s economic success over the past 20 years—and, more remarkably, since the Great Recession and the weak national recovery—rivals the performance of any large metropolitan region in the U.S. For nearly a decade and a half, the city has added jobs at a furious pace—more than 600,000 since early 2000, and 263,000 since early 2008.
The much more populous greater New York City area has added 103,000 jobs since 2008, and Los Angeles, Chicago, Phoenix, Atlanta and Philadelphia remain well below their 2008 levels in total jobs. Los Angeles and Chicago, like Detroit, have fewer jobs today than they did at the turn of the millennium.
In my experiences, one of the greatest advantages of this City is the low cost of living compared to other large cities, such as New York or San Francisco.
Many of Houston’s jobs pay well, too. Using Praxis Strategy Group calculations that factor in the cost of living as well as salaries, Houston now has among the highest, if not the highest, standard of living of any large city in the U.S. The average cost-of-living-adjusted salary in Houston is about $75,000, compared with around $50,000 in New York and $46,000 in Los Angeles.
Money goes much, much further here. And, the article stresses how the city’s lack of a zoning code makes development so much easier.
Houston’s growth is more than oil-industry luck; it reflects a unique policy environment. The city and its unincorporated areas have no formal zoning, so land use is flexible and can readily meet demand. Getting building permits is simple and quick, with no arbitrary approval boards making development an interminable process. Neighborhoods can protect themselves with voluntary, opt-in deed restrictions or minimum lot sizes.
The flexible planning regime is also partly responsible for keeping Houston’s housing prices relatively low. On a square-foot basis, according to Knight Frank, a London-based real-estate consultancy, the same amount of money buys almost seven times as much space in Houston as it does in San Francisco and more than four times as much as in New York. Houston has built a new kind of “self-organizing” urban model, notes architect and author Lars Lerup, one that he calls “a creature of the market.”
Housing-market flexibility has also benefited some of the city’s historically neglected areas. The once-depopulating Fifth Ward has seen a surge of new housing—much of it for middle-income African-Americans, attracted by the area’s long-standing black cultural vibe and close access to downtown as well as the Texas Medical Center. Rather than worry about gentrification, many locals support the change in fortunes. “In Houston, we don’t like the idea of keeping an image of poverty for our neighborhood,” explained Rev. Harvey Clemons, chairman of the Fifth Ward Community Redevelopment Corporation. “We welcome renewal.”
In June, Wisconsin District Judge Barbara struck down the Badger State’s ban on same-sex marriage, but did not immediately stay the order. Right away, clerks began issuing licenses:
St. Croix County deputy clerk Cheryl Harmon said a county attorney told her office in Hudson not to issue licenses until after Crabb’s June 16 deadline for the ACLU to submit its proposed order. La Crosse County Clerk Ginny Dankmeyer said her county’s attorney initially gave the same advice but she issued a license later in the day, after Crabb refused Republican Attorney General J.B. Van Hollen’s request for an emergency order halting the marriages.
But how long the couples’ window stays open is anyone’s guess.
Van Hollen also appealed Crabb’s decision to the 7th Circuit Court of Appeals and asked it to stop the ceremonies.
“There is absolutely no reason to allow Wisconsin’s county clerks to decide for themselves, on a county-by-county basis, who may and may not lawfully get married in this state,” Van Hollen said in a statement.
She did issue a stay a week later, after briefing (it’s unclear what could have caused her to change her mind). Why could the judge not grant the stay, immediately? Why would *any* district court fail to grant the stay? Judge Crabb, I think, answers the question:
After seeing the expressions of joy on the faces of so many newly wedded couples featured in media reports, I find it difficult to impose a stay on the event that is responsible for eliciting that emotion, even if the stay is only temporary. Same-sex couples have waited many years to receive equal treatment under the law, so it is understandable that they do not want to wait any longer. However, a federal district court is required to follow the guidance provided by the Supreme Court. Because I see no way to distinguish this case from Herbert, I conclude that I must stay any injunctive relief pending appeal.
During that interim period, there were 500 marriages performed:
During the eight days between Crabb’s initial ruling on same-sex marriage and her entering a stay, more than 500 same-sex couples got married in Wisconsin. The status of those relationships is in legal limbo, and the ACLU has said it will sue to have those marriages recognized by the state.
Wisconsin Attorney General J.B. Van Hollen filed his appeal with the 7th Circuit earlier than required, so that it would be heard at the same time as the Indiana appeal:
The 7th Circuit is already hearing an appeal of a decision striking down Indiana’s ban on same-sex marriage. The appeals court last week agreed to put that case on a fast track.
“In light of the Seventh Circuit’s recent decision to expedite briefing in the Indiana case, we filed Wisconsin’s notice of appeal earlier than required by the rules,” Van Hollen said in a statement. “The goal of our timing is simple: to ensure that Wisconsin is placed on equal footing with Indiana, and that our constitution and laws are given timely consideration by the appellate judges.”
The 7th Circuit will hear both cases on August 13.
On a related front, the 10th Circuit declined to issue a stay in the Utah litigation, as Utah appeals the case to the Supreme Court. In other words, it will be up to the Supreme Court to issue a stay. The 10th Circuit’s temporary stay dissolves on Monday, July 21, 2014. This creates another urgent run to the Supreme Court–the exact same thing that happened this year. If the Court takes no action right away, the district court’s order kicks in, and same-sex marriages can continue to be recognized in Utah (Updated to reflect that this decision only impacts recognition of the marriages).
Judge Kelly dissented from that order, citing a departure from the “rule of law”:
Though the briefing has been completed, the only new federal development in this case is that a divided panel issued an opinion in Kitchen v. Herbert, No. 13-4178, 2014 WL 2868044 (10th Cir. June 25, 2014), and stayed its ruling. Whatever one’s view of the merits, the district court’s preliminary injunction in this case (as both the district court and this court apparently recognized) should be stayed to allow for an orderly resolution of this controversy and one based upon the rule of law. Denying a stay pending appeal in this case complements the chaos begun by the district court in Kitchen when it faulted the State for not anticipating its ruling and seeking a preemptive stay. See Plaintiffs- Appellees’ Opposition to State Defendants-Appellants’ Emergency Motions for Stay Pending Appeal and Temporary Stay Pending Resolution of Motion to Stay Ex. B at 6, Kitchen, No. 13-4178, 2014 WL 2868044. Ultimately, the Supreme Court granted a stay, but not before the State was compelled to issue marriage licenses to hundreds of same-gender couples from December 23, 2013 to January 6, 2014. See Herbert v. Kitchen, 134 S. Ct. 893 (2014).
Judge Kelly finds that allowing the district court’s opinion, which disrupted the ex ante status quo, to stand “simply cannot be the law.”
Insofar as retroactivity, the Utah provisions barring same-gender marriage and its recognition predate the district court’s stayed injunction in Kitchen. The rule contended for by the Plaintiffs—that a federal district court may change the law regardless of appellate review and the State is stuck with the result in perpetuity—simply cannot be the law. It would not only create chaos, but also undermine due process and fairness.
Further, the likelihood of irreparable harm is great:
The State will be irreparably harmed without a stay. In denying a stay pending appeal, this court is running roughshod over state laws which are currently in force. It is disingenuous to contend that the State will suffer no harm if the matter is not stayed; undoing what is about to be done will be labyrinthine and has the very real possibility to moot important issues that deserve serious consideration.
This case should come to a close through “the normal legal process”:
Moreover, granting a stay would not harm Plaintiffs because a stay would not ultimately decide or dispose of their claims. Though the Plaintiffs have important interests at stake, those interests may still be vindicated while appellate review occurs, and Plaintiffs are free to live their lives as they will. A stay would simply maintain the status quo until this case—and the broader issue to ultimately be resolved in Kitchen—comes to a resolution via the normal legal process, including that currently unfolding in the Utah courts.
Declining a stay here may well moot the novel issues involved, as well as those pending in the state courts. The State and its citizens, and respect for the law, are better served by obtaining complete, final judicial resolution of these issues.
And in Colorado, Attorney General John Suthers has been under fire for defending the law:
“We all know how this is going to end,” said state Sen. Pat Steadman, a Denver Democrat. “What’s left to argue about?” …
Suthers, a Republican, is declining interviews, but those who know him — including some who support same-sex marriage — say recent criticism misses the point. Suthers is a politician, they say, whose law-and-order background makes him take his formal legal role of vigorously defending Colorado’s laws seriously.
Suthers is standing firm:
Suthers has been outspoken, even penning an op-ed in The Washington Post in February that chided some of his colleagues for stepping out of line.
“One must be cynical,” Suthers wrote, “when an attorney general refuses to defend a controversial law as ‘clearly unconstitutional’ when there is no binding precedent and it is apparent to most knowledgeable people that the U.S. Supreme Court is likely to decide the case on a 5-4 vote.”
Does Section 5 of the 14th Amendment Support Congress’s Power to Eliminate State Restrictions on Abortion?
Tomorrow the Senate Judiciary Committee will hold a hearing on the proposed “Woman’s Health Protection Act.” In short, the Act purports to ban a number of state-imposed restrictions on abortion, including waiting periods, pre-abortion sonograms, regulations on clinics, requirements for admitting privileges, and many others. You can read the text of the proposed bill here.
The findings of the bill cite Congress’s power under Section 5 of the 14th Amendment, and the commerce clause, as the constitutional basis for this law:
(8) The cumulative effect of these numerous restrictions has been widely varying access to abortion services such that a woman’s ability to exercise her constitutional rights is dependent on the State in which she lives. Federal legislation putting a stop to harmful restrictions throughout the United States is necessary to ensure that women in all States have access to safe abortion services, an essential constitutional right repeatedly affirmed by the United States Supreme Court.
(9) Congress has the authority to protect women’s ability to access abortion services pursuant to its powers under the Commerce Clause and its powers under section 5 of the Fourteenth Amendment to the Constitution to enforce the provisions of section 1 of the Fourteenth Amendment.
Is this constitutional? Let’s focus on Section 5 first. The argument would go something like this. The right to an abortion is a fundamental right protected by the Due Process Clause in Section 1 of the 14th Amendment. Thus, Congress has the power to make sure states are not violating those rights through section five.
But this position raises significant Boerne v. Flores problems. Congress is attempting to flesh out the scope of the right to access an abortion, as defined by the 14th Amendment. The Court in Boerne (joined by Justices Stevens and Ginsburg, even if she regrets that vote), held that it is for the Court, and not Congress to define the liberties protected by the 14th Amendment.
The bill bans prohibitions prior to fetal viability. This would seem to conflict with the standard articulated in Casey:
A prohibition or ban on abortion prior to fetal viability. …
A measure or action that prohibits or restricts a woman from obtaining an abortion prior to fetal viability based on her reasons or perceived reasons or that requires a woman to state her reasons before obtaining an abortion prior to fetal viability.
The bill offers a more restrictive standard than the Court has considered in Casey on waiting periods:
(3) A restriction that limits a pregnant woman’s ability to obtain an immediate abortion when a health care professional believes, based on her or his good-faith medical judgment, that delay would pose a risk to the woman’s health.
Is this wide-ranging bill in any way congruent and proportional to the constitutional rights at issue? If RFRA wasn’t, this probably isn’t.
Second, with respect to its powers under the commerce clause, I’ll quote Justice Thomas’s concurring opinion in Gonzales v. Carhart:
I also note that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.
Does abortion have a sufficient nexus with interstate commerce to justify such a wide-ranging ban that imposes on federalism, and the ability of the states to regulate the health and safety of the clinics? Oddly enough, the word “commerce” appears only once. They didn’t even bother to add a decent Lopez commerce jurisdictional hook in the statute.
Beyond the commerce clause, let’s think about the necessary and proper clause the last, best hope of ultra vires congressional action (to quote Justice Scalia). This bill amounts to an unprecedented intrusion on the ability of states to enact health and safety regulations. It specifically limits what regulations a state can impose:
The following restrictions on the performance of abortion are unlawful and shall not be imposed or applied by any government:
Historically, these types of regulations have been solely within the provence of the state police power. Would this amount to a “great and substantive independent power” denied to Congress, when it comes to preserving federalism and states rights?
This bill is likely unconstitutional on all fronts.
Will Buade draws attention to an interesting aspect of McCullen v. Coakley–it described the analyses in Holder v. Humanitarian Law Project and McCutcheon in terms of scrutiny, something those cases did not do.
Holder v. HLP did not use the word “Strict scrutiny” or “compelling interest” or “narrowly tailored.” But in describing the case, the McCullen Court did:
It is not unusual for the Court to proceed sequentially in applying a constitutional test, even when the preliminary steps turn out not to be dispositive. See, e.g., Bartnicki v. Vopper, 532 U. S. 514, 526–527 (2001); Holder v. Humanitarian Law Project, 561 U. S. 1, 25–28 (2010) (concluding that a law was content based even though it ultimately survived strict scrutiny).
Same for McCutcheon, which declined to speak of a tier of scrutiny. But McCullen labelled it as “intermediate scrutiny.”
The Court does sometimes assume, without deciding, that a law is subject to a less stringent level of scrutiny, as we did earlier this Term in
McCutcheon v. Federal Election Commission, 572 U. S. ___, ___ (2014) (plurality opinion) (slip op., at 10). But the distinction between that case and this one seems clear: Applying any standard of review other than intermediate scrutiny in McCutcheon—the standard that was assumed to apply—would have required overruling a precedent.
I confess, I found both of these characterizations a little surprising. I had thought that both McCutcheon and Humanitarian Law Project went out of their way to avoid using terms like “strict scrutiny” and “intermediate scrutiny.” But I guess I was wrong, and the terminology turned out not to be so important after all. (For what it’s worth, all three opinions — McCullen, McCutcheon, and Humanitarian Law Project — were written by the Chief Justice.)
While it is true that all three were written by the Chief, not all three were unanimous.
McCutcheon was 5-4, with the Chief writing for Scalia, Kennedy, Thomas, and Alito. Holder v. HLP was 6-3, with the Chief writing for Stevens, Scalia, Kennedy, Thomas, and Alito. RBG, Breyer, and Sotomayor were in dissent.
Perhaps one of the dissenting Justices from Holder v. HLP (or Justice Kagan), who is more enamored by the tiers of scrutiny and their labels, urged the Chief to modify this characterization of the earlier cases. This may be a simple enough edit for one Justice to request, and to keep the Court unanimous, I would imagine the Chief would gladly oblige.
I’ve argued in a long series of posts, and this article (which is almost done!) that the tiers of scrutiny have fallen out of relevance in recent years in terms of equal protection and due process. Maybe one of those Justices is trying to push back.
In a letter to the President, 50 legal scholars urge the President not to include a broad religious exemption to a proposed executive order that would bar LGBT discrimination by federal contractors. The letter states that RFRA does not affect the executive order, because the Federal Government can choose how it spend money.
Second, the Court’s jurisprudence, including its recent decisions under the Religious Freedom Restoration Act, in no way affect the promulgation of an executive order that establishes the conditions under which taxpayer dollars can be expended to subsidize the work of a private organization. The federal government is free to require that government contractors adhere to government standards. Religious contractors do not have a right to government contracts, and there is no burden on their religious exercise if they are unable or unwilling to comply with those requirements. When spending taxpayer dollars the government should be permitted to favor – and indeed, should favor – employers who do not discriminate on invidious grounds, including sexual orientation and gender identity. As with race, gender, or any other protected class, the fact that some religious employers who do not share a commitment to equal treatment will be disfavored by such a rule does not create a constitutional problem.3
3 Cf. Bob Jones Univ. v. United States, 461 U.S. 574 (1983) (although not an employment case, Bob Jones upheld the IRS’ authority to revoke the tax-exempt status of a university that discriminated on the basis of race in its student policies).
Is this right? Does RFRA not “affect the promulgation” of the Executive Order?
Section 3(a) of RFRA, the super-statute, makes clear that it applies to “all federal law,” whether “statutory or otherwise.”
(a) In generalThis chapter applies to all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993.
The only way to get around this law, is for “federal statutory law” to specifically exclude the applicability of RFRA:
(b) Rule of construction
Federal statutory law adopted after November 16, 1993, is subject to this chapter unless such law explicitly excludes such application by reference to this chapter.
The President’s executive order would be issued against the backdrop of RFRA.
So it would seem pretty clear that the executive order would be bound by RFRA. A contractor denied a contract based on this executive order could raise RFRA as a defense. Whether that defense will be successful is doubtful. But RFRA would apply.
I will be on Houston Public TV “Red, White, and Blue” Tonight at 7:30 Talking about the Supreme Court
Tune in tonight at 7:30 on Houston Public TV for a special episode of “Red, White, and Blue.” I’ll be discussing the Supreme Court term, along with my friends Aaron Bruhl from the University of Houston, and Craig Jackson from Texas Southern University.
— Josh Blackman (@JoshMBlackman) July 1, 2014
The First Amendment Center has released their annual survey on the First Amendment. The results continue to be disappointing, but improving.
Nearly a third of Americans cannot name a single right protected in the First Amendment.
When asked to name the five specific freedoms in the First Amendment, 68% of Americans name freedom of speech, followed by 29% who say the freedom of religion, 14% mention the freedom of the press, 7% mention the right to assemble, and 1% name the right to petition. Twenty-nine percent of those surveyed cannot name any of the rights guaranteed by the First Amendment.
Those who could name freedom of speech and freedom of religion increased this year from 59% to 68% and 24% to 29% respectively. Meanwhile, the knowledge of right to petition and right of assembly decreased from 4% to 1% and 11% to 7% respectively. The percentage of Americans who can’t name any First Amendment rights dropped from 36% to 29%.
I will continue working with The Harlan Institute to make these numbers right.
Boulder Judge, Citing “Rule of Law,” Finds No “Irreparable Harm” from Boulder Clerk Issuing Same-Sex Marriage Licenses
A judge in Boulder, Colorado has denied the Attorney General’s request to stop the Boulder County clerk from distributing same-sex marriage licenses. Chris Geidner has the report. Recall that the Boulder clerk started doing so, after the 10th Circuit struck down *Utah’s* same-sex marriage ban, and *stayed* its ruling.
In ruling against the Attorney General, the Boulder judge found no risk of “specific irreparable harm” by allowing the licenses to continue.
The State asserts that Clerk Hall is causing irreparable injury by issuing same-sex marriage licenses, namely, that she is causing ‘legal chaos and confusion.’ However, when pressed, the State does not identify specific irreparable harm, offering only speculation. This is a fatal flaw to the extraordinary relief it seeks.”
No “irreparable harm” by granting marriage licenses that may ultimately be voided? This judge can’t be serious. Was this not the entire scope of the Prop 8 judgment in the 9th Circuit? That people were granted a right, which was then taken away? Now we all know what’s going to happen, but at least pretend to be cognizant of the damages that can result here.
Yesterday, in an unrelated case, another Colorado judge found Colorado’s ban unconstitutional, but stayed its ruling. The court noted that the Boulder Clerk was “vindicated” by that decision, even though she decided to start issuing marriage licenses based on her own conscience.
As argued by counsel for the State at hearing, Clerk Hall did not follow established legal procedures and impugned the rule of law. She has apparently been vindicated, at least for now, by the holding in Brinkman.
We are through the looking glass. She was vindicated by ignoring the law, because another judge later said that the ban was unconstitutional. That judgment was also stayed, to avoid the very chaos the AG asserted, and the Clerk disregarded.
Towards the conclusion, the court finds that “rule of law” must give way to “upholding an individual’s constitutional rights.”
Clerk Hall argues that the equities are in her favor since a stay would deprive same-sex couples of their fundamental right to marry. Response at 17. As discussed in the public interest section above, every post-Windsor case that has addressed this issue has found in favor of same-sex litigants, including the only Colorado case. See note 10 and accompanying text. Also, while the people of Colorado deserve compliance with the rule of law, they have “a more profound long- term interest in upholding an individual’s constitutional rights.” Awad, 670 F.3d at 1132. As such, the Court cannot find that the balance of the equities favors granting the State’s request for expedited relief.
During an executive business meeting over the proposal to amend the First Amendmetn, Senator Durbin explained that Congress still could not regulate speech based on subject matter. Senator Ted Cruz interjected a question, and asked where in the Amendment is the phrase “content neutral.” (It’s not in there). Senator Durbin responded that Cruz, a former “Supreme Court clerk,” should know that the “content neutral” test is deeply rooted in the Court’s jurisprudence. Cruz shot right back, saying something to the effect of, “But this changes the Constitution.” Durbin said nothing in this Amendment would change the Court’s First Amendment jurisprudence about content neutrality. That can’t be correct.
If this Amendment is passed (which thankfully it won’t), it would trump the First Amendment. Later-in-time Amendments prevail over earlier parts of the Constitution. Sometimes this is explicit. The 21st Amendment repealed the 18th Amendment. Sometimes it is implied. The 14th Amendment modified the 11th Amendment, with respect to waivers of state sovereign immunity.
Following the debate over whether RFRA expanded the scope of Pre-Smith “Free Exercise” jurisprudence, I think this is a really important point that thankfully Senator Cruz raised. At the minimum, any responsible Amendment should, in the least, reference this “content neutral” jurisprudence, in much the same way that the text of RFRA referenced some of the Pre-Smith jurisprudence. But the amendment, as proposed, does no such thing. This is why original public meaning is so, so much more important than the intents of any individual senators.
Here are some of my other tweets from during the hearing.
From Senator Cruz:
This proposal is the single most radical and dangerous proposals in the 113th congress @tedcruz
— Josh Blackman (@JoshMBlackman) July 10, 2014
CRUZ: “It saddens me 46 Democratic Senators have signed their name to repeal free speech provisions of Bill of Rights” — Amanda Carpenter (@amandacarpenter) July 10, 2014
The breadth of this proposal is astonishing. It should lead the evening news on every station
— Josh Blackman (@JoshMBlackman) July 10, 2014
CRUZ: Democrats “restricted debate on this topic. It’s fitting they are limiting debate. There is a big red clock ticking”
— Amanda Carpenter (@amandacarpenter) July 10, 2014
Democratic members of this committee do not want to debate. They want to limit debate to limit free speech rights — Josh Blackman (@JoshMBlackman) July 10, 2014
Ask 3 questions. 1. Should Congress be able to ban books?
— Josh Blackman (@JoshMBlackman) July 10, 2014
2. Should Congress be able to ban movies? 3. Should Congress be able to prohibit NAACP to speak about politics — Josh Blackman (@JoshMBlackman) July 10, 2014
If you are going to vote for this proposal, you should be prepared to answer questions to ban books, movies, and NAACP
— Josh Blackman (@JoshMBlackman) July 10, 2014
No dispute that this amendment would allow all 3. Gives COngress ability to regulate corporations. — Josh Blackman (@JoshMBlackman) July 10, 2014
“Prohibit such entities from spending money to influence election.” What does that mean?
— Josh Blackman (@JoshMBlackman) July 10, 2014
— Josh Blackman (@JoshMBlackman) July 10, 2014
The word is “prohibit,” not “reasonably” regulate. — Josh Blackman (@JoshMBlackman) July 10, 2014
— Josh Blackman (@JoshMBlackman) July 10, 2014
CRUZ: “I think Michael Moore’s movies are naked propaganda and he has a right to produce them, reasonable or not.” — Amanda Carpenter (@amandacarpenter) July 10, 2014
Cruz reading his amendment to amend the amendment to the First Amendment. It’s the First Amendment.
— Josh Blackman (@JoshMBlackman) July 10, 2014
Where are words “content neutral” in the proposed amendment? — Josh Blackman (@JoshMBlackman) July 10, 2014
Durbin: The Amendment would be passed against the backdrop of the Court’s 1st am. Jurisprudence. @tedcruz This changes the Constitution
— Josh Blackman (@JoshMBlackman) July 10, 2014
And a few other good lines from Senators Hatch, Cornyn, and Lee:
— Josh Blackman (@JoshMBlackman) July 10, 2014
Lee: Dem bill would cripple freedom of speech and irrevocably damage our most precious possession as Americans: our freedom. #1A
— Brian Phillips (@SenLeeComs) July 10, 2014
If owner of newspaper promoted candidate of choice, that not subject to restriction. But what if same owner published pamphlet. Protected?
— Josh Blackman (@JoshMBlackman) July 10, 2014
What if someone who did not own newspaper company, but used money to contract publishing equipment? Any less protection? — Josh Blackman (@JoshMBlackman) July 10, 2014
What if 10 million Americans formed association donate $100 to create fund to pool resources to promote candidate of choosing.
— Josh Blackman (@JoshMBlackman) July 10, 2014
During an executive business meeting concerning the proposed Amendment to amend the First Amendment, Senator Ted Cruz made a cogent defense of original public meaning, over original intent. Many Senators defending the Amendment said they would never ban books or movies. That wasn’t their intent.
Cruz responded forcefully that the “intent” of the members of Congress is not nearly as important as the “meaning” of the plain text of the Amendment. Cruz stated, “Whether or not anyone intends to give Congress the power to ban books, the text gives Congress the power to ban books.”
This is the argument for original public meaning, rather than original intent. Rather than relying on the varied intents of the different members, we should focus on how the amendment would be understood.
If you enjoy this blog, please consider taking a moment to file an amicus brief in favor of JoshBlackman.com being granted entry to the ABA Blawg 100. The word limit is 500 characters. That’s less than 4 tweets. Piece of cake. I’ve been listed in the Blawg 100 in 2010, and 2013 (minus my interregnum in the blogdom nether region while clerking).
Newsweek has a thorough article on Hobby Lobby, and its implications to gay rights and employment discrimination cases, more broadly. I am quoted, along with Kent Greenfield and Allison Orr Larsen:
Under the RFRA, the law that the Hobby Lobby case turned on, a law is allowed to burden someone’s religious freedom if it furthers a “compelling” government interest in the least restrictive way possible. In the Hobby Lobby case, for example, the court assumed that the government had a compelling interest in making sure women receive birth control coverage, but decided that the requirement that employers cover it was not the least restrictive way of achieving that goal. The government could pay for the coverage itself, Alito reasoned, and then achieve its goal without burdening religious business owners.
For this reason, Josh Blackman, a law professor at South Texas College of Law, doesn’t believe Hobby Lobby will ultimately lead to employment discrimination for various minorities—because the government has a compelling interest in ending such discrimination and there’s no workaround except by simply prohibiting it. Perhaps Hobby Lobby will lead to more RFRA cases, he said, but it’s unlikely religious employers would win those challenges.
What’s more likely, Blackman says, are exemptions for companies that don’t want to serve certain groups, like the LGBT community in the Elane Photography case. A case like that involves a form of speech, in which a company is paid to create something—in this case, photographs of a gay wedding—that goes against its religious beliefs. “That’s a much more difficult issue,” Blackman said. “Invariably, these issues arise when someone is asked to do a service for them.”
I discussed these thoughts at some length in this post. I’ll repost it here.
One of the major lingering questions following Hobby Lobby, is how claims of religious liberty apply to generally applicable employment discrimination laws. I’ve blogged before about RFRA and SB 1062, as well as RFRA challenges to anti-discrimination laws.
The majority opinion by Justice Alito addressed Title VII several times, to explain that it has built-in exemptions for certain religious institutions.
By contrast, HHS contends, statutes like Title VII, 42 U. S. C. §2000e–19(A), expressly exempt churches and other nonprofit religious institutions but not for-profit corporations. See Brief for HHS in No. 13–356, p. 26. In making this argument, however, HHS did not call to our attention the fact that some federal statutes do exempt categories of entities that include for-profit corporations from laws that would otherwise require these entities to engage in activities to which they object on grounds of conscience. See, e.g., 42 U. S. C. §300a–7(b)(2); §238n(a).27 If Title VII and similar laws show anything, it is that Congress speaks with specificity when it intends a religious accommodation not to extend to for-profit corporations.
Justice Ginsburg, in dissent, rejects the majority’s reading of Title VII:
Typically, Congress has accorded to organizations religious in char- acter religion-based exemptions from statutes of general application. E.g., 42 U. S. C. §2000e–1(a) (Title VII exemption from prohibition against employment discrimination based on religion for “a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on . . . of its activities”); 42 U. S. C. §12113(d)(1) (parallel exemption in Americans With Disabilities Act of 1990). It can scarcely be maintained that RFRA enlarges these exemp- tions to allow Hobby Lobby and Conestoga to hire only persons who share the religious beliefs of the Greens or Hahns. Nor does the Court suggest otherwise. Cf. ante, at 28. Indeed, by law, no religion-based criterion can restrict the work force of for-profit corporations. See 42 U. S. C. §§2000e(b), 2000e–1(a), 2000e–2(a); cf. Trans World Air lines, Inc. v. Hardison, 432 U. S. 63, 80–81 (1977) (Title VII requires reasonable accommodation of an employee’s religious exercise, but such accommodation must not come “at the expense of other[ employees]”).
Justice Alito retorts that discrimination based on race can never be countenanced.
The principal dissent raises the possibility that discrim- ination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. See post, at 32–33. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the work- force without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that criti- cal goal.
Notably, he does not mention gender, or sexual orientation, or any other protected statues. This leads Justice Ginsburg to cite a string of cases where religion is raised as a defense to discrimination charges–including (drumroll) Elane Photography.
Hobby Lobby and Conestoga surely do not stand alone as com- mercial enterprises seeking exemptions from generally applicable laws on the basis of their religious beliefs. See, e.g., Newman v. Piggie Park Enterprises, Inc., 256 F. Supp. 941, 945 (SC 1966) (owner of restaurant chain refused to serve black patrons based on his religious beliefs opposing racial integration), aff ’d in relevant part and rev’d in part on other grounds, 377 F.2d 433 (CA4 1967), aff’d and modified on other grounds, 390 U. S. 400 (1968); In re Minnesota ex rel. McClure, 370 N. W. 2d 844, 847 (Minn. 1985) (born-again Christians who owned closely held, for- profit health clubs believed that the Bible proscribed hiring or retaining an “individua[l] living with but not married to a person of the opposite sex,” “a young, single woman working without her father’s consent or a married woman working without her husband’s consent,” and any person “antagonistic to the Bible,” including “fornicators and homosexuals” (internal quotation marks omitted)), appeal dismissed, 478 U. S. 1015 (1986);
If I may offer a brief interlude here. That Justice Ginsburg has to cite from a South Carolina case from 1966, a 4th Circuit case from 1967, and a Minnesota Supreme Court case from 1985, as the *leading* examples of defending claims of discrimination based on religion, tells me that this problem may not be particularly salient in today’s society. You just don’t see claims like this being made. But the next example is where the money is.
Elane Photog raphy, LLC v. Willock, 2013–NMSC–040, ___ N. M. ___, 309 P. 3d 53 (for-profit photography business owned by a husband and wife refused to photograph a lesbian couple’s commitment ceremony based on the religious beliefs of the company’s owners), cert. denied, 572 U. S. ___ (2014). Would RFRA require exemptions in cases of this ilk? And if not, how does the Court divine which religious beliefs are worthy of accommodation, and which are not? Isn’t the Court disarmed from making such a judgment given its recognition that “courts must not presume to determine . . . the plausibility of a religious claim”? Ante, at 37.
Of course, the Court denied certiorari in Elane Photography. But they cannot duck this issue. Especially as ENDA, which seems dead in Congress, may be enacted in a reduced form through executive order. There are already debates about the scope of the religious liberty exemption to the executive order.
In selling the contraception mandate, HHS has reported that providing contraceptive coverage will pay for itself by decreasing other costs related with pregnancy, childbirth, etc. Justice Alito even referenced this fact in Hobby Lobby. Can this possibly be accurate?
Austin Frakt, one of the architects of the ACA, says probably not.
In his opinion last Monday, Justice Alito referred to an assertion made bythe departments of the Treasury, Labor, and Health and Human Servicesthat “providing payments for contraceptive services is cost neutral for issuers. Several studies have estimated that the costs of providing contraceptive coverage are balanced by cost savings from lower pregnancy-related costs and from improvements in women’s health.”
Studies the departments cited are suggestive, but far from definitive. A fuller review of the literature on the cost and cost offsets of contraceptive coverage by Daniel Liebman, a colleague, finds that the evidence is thin that, from an insurer’s perspective, contraceptive coverage pays for itself in the long term. Moreover, it almost certainly does not in the short. The cost of contraceptive coverage is immediate, and the possible offsets (reduced pregnancies) are downstream, often years in the future. …
The majority of the Supreme Court is correct in saying that the government has other means to ensure that women receive contraceptive coverage. But it is far less clear that that that coverage would be without cost, and it almost certainly would not be in the short term.
Specifically, the arguments about the cost-saving effect of contraceptives is counterintuitive:
That contraceptive coverage may not be cost saving might seem counterintuitive. After all, relative to the cost of delivering a baby, let alone raising a child, contraception is inexpensive. Though prices vary, the pill can cost less than $50 month. An IUD costs about $1,000 and is effective for several years. As any parent knows, children cost many multiples of this. Indeed, a Brookings Institution study found that expanding family planning services to Medicaid beneficiaries saved $5.60 for every $1 invested.
However, the Medicaid population is not the same as a typical, employed population, which is at issue in the cases considered by the Supreme Court last week. Additionally, contraception is not the same as contraceptive coverage. In part because it is so cost-effective, most people are willing to pay for contraception with their own money, if they can afford to. (Many Medicaid-eligible individuals perhaps cannot, but most employed people probably can.) Insurers benefit from this, because every pregnancy avoided is one less they have to pay for.
Therefore, when employer-sponsored insurers pick up the tab for contraception, not very many more pregnancies are avoided — most people were already using and paying for contraception. According to the IMS Institute for Healthcare Informatics, though the proportion of Americans with no cost-sharing for contraceptives rose in 2013 to 50 percent from 20 percent, prescriptions written for contraceptive medications increased only 4.6 percent.
In other words, most people who wanted to use contraception were already paying for it out of pocket, so the additional coverage of it through insurance won’t make much difference.
On a related note, when the ACA was being sold, I remember laughing when people bragged that it would reduce the deficit and be cost-neutral. I can’t imagine why anyone believed this.
The Senate Democrats have proposed a new bill that would, in essence, reverse Hobby Lobby:
Ms. Murray’s bill criticizes the Supreme Court’s majority opinion and repudiates it by declaring that “employers may not discriminate against their female employees” in coverage of preventive health services.
To this end, it says that an employer “shall not deny coverage of a specific health care item or service” where coverage is required under any provision of federal law. Moreover, it says, this requirement shall apply to employers notwithstanding the Religious Freedom Restoration Act.
The bill would not amend that law. It explicitly preserves federal rules that provide an exemption for churches and other houses of worship that have religious objections to providing coverage for some or all contraceptives.
In addition, the bill preserves an “accommodation” devised by President Obama for nonprofit religious organizations, like colleges, hospitals and charities, that have religious objections.
The odds of this passing the House are close to zero. It is curious why the President, for once, has decided not to use executive power to solve this problem. After all, the mandate to purchase certain forms of contraception, and the subsequent exemptions, were products of HHS regulation, and not the ACA itself.
Paging Chief Justice Roberts: Umpires give more favorable strike calls to All-Star pitchers:
Two researchers looked at the photographic evidence and found that umpires make more errors in favor of All-Star pitchers than in favor of pitchers who have never been to an All-Star Game — about 17 percent more. …
But the science exists, for anyone who wants to look at it. Every major league stadium is equipped with the Pitch f/x system, which includes strategically placed cameras that record the locations and trajectories of every pitch. The technology provides a record that is difficult to dispute. In the seasons the study covered, 2008 and 2009, umpires earned a B-plus average, at best, in calling balls and strikes.
The researchers — two business school professors, Jerry W. Kim of Columbia Business School and Brayden G. King of Northwestern’s Kellogg School of Management — looked at data on 756,848 pitches over 313,774 at-bats in 4,914 games. Some umpires were, unsurprisingly, more accurate than others, but on average they called a strike on 18.8 percent of pitches that were actually out of the strike zone and a ball on 12.9 percent of pitches that were, in fact, strikes.
Many factors besides All-Star status could affect an umpire’s judgment, so the researchers adjusted for the home team advantage, the importance of the at-bat to the outcome of the game, the count at the time of the pitch, whether the pitcher or the hitter was a lefty or a righty, the catcher’s ability to frame a pitch and make a ball look like a strike, and even the size of the crowd.
But after controlling for all these variables and more, the advantage gained by a pitcher’s status was still large. For each additional appearance in an All-Star Game there was a 4.8 percent increase in the probability that an actual ball would be called a strike. A player with five All-Star appearances had a 14.9 percent chance of a true ball being called a strike, which is a 16.7 percent increase over the chance a journeyman will benefit from the same mistake.
The error is not just the result of All-Stars being around the plate more than other pitchers. Even on the identical pitch just outside the zone, All-Stars got the call when journeymen did not.
With miscalled strikes, the same thing happens in reverse. A pitch in the strike zone thrown by a journeyman has a 19 percent chance of being called a ball. For the All-Star, the probability drops to 17 percent. That may not seem like a lot, but it means that an All-Star gets an automatic 9 percent advantage based not on his performance but on his reputation.
Although the effect is somewhat weaker, the same kind of bias appears when an All-Star batter is at the plate. The researchers calculate that a five-time All-Star has roughly a 5 percent or 6 percent advantage in getting a favorable ball-strike call.
I wonder if, similarly, the Justices give better treatment to Supreme Court veterans, who routinely argue cases. I suspect that if a newbie pulled the stuff Tom Goldstein does, he would be heaved out of Court.