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There is perhaps no more reviled figure in Supreme Court lore than Chief Justice Roger Taney. His decision in Dred Scott, filled with unthinkably racist language, went out of its way to resolve the case on as broad grounds as possible. Rather than simply dismissing the case for lack of diversity jurisdiction, he purported to find that the Missouri Compromise was unconstitutional, it would violate due process for the federal government to eliminate slavery, and that free states could not actually confer constitutional citizenship onto Africans so that they would be entitled to the Article IV “privileges and immunities” of citizenship.

When most of us visualize Taney, we think of the portrait that hangs at Harvard Law School, which Justice Scalia described in vivid langauge in his Planned Parenthood v. Casey dissent.

There comes vividly to mind a portrait by Emanuel Leutze that hangs in the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82d year of his life, the 24th of his Chief Justiceship, the second after his opinion in Dred Scott. He is all in black, sitting in a shadowed red armchair, left hand resting upon a pad of paper in his lap, right hand hanging limply, almost lifelessly, beside the inner arm of the chair. He sits facing the viewer, and staring straight out. There seems to be on his face, and in his deep set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the lustre of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case–its already apparent consequences for the Court, and its soon to be played out consequences for the Nation–burning on his mind. I expect that two years earlier he, too, had thought himself “call[ing] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.”

This isn’t the only image of Taney that hangs in shame. There is also a bust of Taney outside Frederick, Maryland City Hall. On Monday, vandals poured an entire bucket of red paint onto Taney’s bust. The vandalism came on the eve of a decision whether to remove the bust because some find it “offensive”:

Frederick Alderwoman Donna Kuzemchak started the discussion in August, as she considers the statue offensive.

The mayor and aldermen are set to decide Thursday whether it should move to a museum or another historical site.

The discussion fits into a much broader discussion about whether state officials should continue to fly the Confederate Flag. But rather than removing a symbol of the Confederacy, the Frederick government is considering removing the visage of a person–and in this case, the Chief Justice of the United States. At some point, I will publish something that delves into this question in much more depth, but for now, I should stress that this is exact decision may one day face the Supreme Court.

Lining the Great Hall of the Supreme Court are busts of the Chief Justices. Sandwiched between the great visages of John Marshall (the 4th Chief) and Salmon Chase (the 6th Chief) is the blank stare of Roger Brooke of Taney.

Will we one day see a movement to remove the bust of Chief Justice Taney from the Supreme Court?

The debate over memorializing Taney is not new. In the old Supreme Court chamber in the Senate, there is another bust of Taney. But, as the Senate’s archives reveal, there was a debate in 1865 over whether the Taney bust should even be commissioned that involved Lyman Trumbull and Charles Sumer.

The commissioning of such a bust, however, had previously met with strong opposition in Congress. Several years earlier, in February 1865, a heated debate erupted in the Senate Chamber when Senator Lyman Trumbull of Illinois introduced a bill providing for a bust of Taney for the Supreme Court room. In response, Senator Charles Sumner of Massachusetts exclaimed: “I object to that; that now an emancipated country should make a bust to the author of the Dred Scott decision.” While Trumbull eulogized the late chief justice, noting that even if Taney had made a wrong decision he was still a great and learned man, Sumner retorted: “Let me tell that Senator that the name of Taney is to be hooted down the page of history. Judgement is beginning now; and an emancipated country will fasten upon him the stigma which he deserves.” Congressional Globe (23 February 1865) 38th Cong., 2d sess., 1012. Following the debate further action on the bill was indefinitely postponed.

There’s nothing new. Ultimately, the bust was commissioned in 1872, alongside a bust for Chief Justice Chase, and was completed in 1877.

Update: Harvard Law School has this description of why it still hangs the portraits of Taney:

The School has two portraits of Roger Taney, fifth Chief Justice of the United States. Because of the subject, they are controversial. Taney was born of a wealthy slave-owning family of tobacco farmers. A private, scholarly man, Taney graduated first in his class from Dickinson College in Pennsylvania in 1795 at the age of eighteen. He received his early legal training in the office of Judge Jeremiah Chase of Annapolis Maryland. On 7 January, 1806, he married Anne Phoebe Charlton Key, only daughter of John Ross Key, and sister of Francis Scott Key, a law student with Taney at Annapolis, who afterwards wrote the Star-Spangled Banner. Upon his father’s death, Taney freed his slaves. As a Maryland litigator in the 1820s, Taney had declared, “Slavery is a blot on our national character, and every real lover of freedom confidently hopes that it will be effectually, though it must be gradually, wiped away.”

The portrait of the younger Taney – which hangs outside the library’s computer lab – was painted by the noted artist Henry Inman during Taney’s tenure as Attorney General. As Andrew Jackson’s attorney general, Taney helped close down the Second Bank of the United States, bringing him in direct conflict with powerful leaders of the Senate, including Daniel Webster and Henry Clay. Despite their opposition, in 1837 Jackson rewarded Taney by naming him Chief Justice of the Supreme Court.

Taney is remembered and respected for such opinions as Charles River Bridge v. Warren Bridge, Abelman v. Booth, and Ex Parte Merryman. That began to change in 1857, when the Supreme Court faced the case of Dred Scott, a slave who claimed his freedom as a result of being taken by his master to a free state. As the author of the Supreme Court’s majority opinion in Dred Scott v. Sanford, Taney struck down the Missouri Compromise and ruled that the Constitution did not recognize the citizenship of an African American who had been born a slave. This decision sparked bitter opposition from northern politicians and a heated defense from the South and was one of the most important events leading up to the Civil War. This single opinion cast a shadow over Taney’s distinguished legal career and his personal reputation for integrity.

The Law School has many portraits that depict individuals who do not have the most sterling reputations, e.g., Lord Jeffries. Because the school owns and displays a portrait of a given individual is not an endorsement. Rather they are depictions of historical figures who have had some impact on our legal heritage — for good or ill. Taney certainly had an impact on the American legal, social and cultural landscape and the comparison of Harvard’s two portraits is visually interesting.

 

I could not find a full, color photo of the Leutze painting. Here is the best version I could find.

In Monday’s Los Angeles Times, columnist Michael Hiltzik wrote a post, criticizing Judge Leon’s decision in the March for Life case. The original version of the story (courtesy of Archive.org) simply noted that Judge Leon found that the mandate was a “violation of the 5th Amendment’s guarantee of equal protection and therefore ‘unconstitutional.'”

This is an accurate assessment of Leon’s opinion.

At some point on Tuesday, Hiltzik modified the online version without any note. The new version (I couldn’t find a cached version) read:

Because the contraception mandate applies to secular employers but not religious groups, he found that it “violates the equal protection clause of the Fifth Amendment” and is therefore “unconstitutional.” (Leon is typically sloppy here: the equal protection clause is found in the Fourteenth Amendment, not the Fifth. Shouldn’t a federal judge know this?)

Hiltzik took a fair characterization of the opinion and turned it into a cheap shot. As I noted yesterday, although the 5th Amendment does not have an Equal Protection Clause, the Court in Bolling v. Sharpe read it as embracing an equal protection component, or as Hiltzik put it in his initial column a “guarantee.” In any event, I found over 600 federal judges who used the phrase “equal protection clause of the Fifth Amendment.” It isn’t precisely correct, but enough judges use it that I’m not troubled. In contrast, a search for “equal protection component of the Fifth Amendment” (the more accurate phrase) yielded only 841 hits.

Hiltzik and I went back and forth over twitter. At some point yesterday, again without notation, the LA Times modified the article again:

Because the contraception mandate applies to secular employers but not religious groups, he found that it “violates the equal protection clause of the Fifth Amendment” and is therefore “unconstitutional.” (Leon is typically sloppy here. The Equal Protection Clause is found in the Fourteenth Amendment, not the Fifth; it’s applied to the federal government by the Fifth, but via that amendment’s Due Process Clause. Shouldn’t a federal judge know this?)

Hiltzik clarifies his remark, but doubles down on the cheap shot. He had it right in the first instance. He was forced to acknowledge that the 5th Amendment embraces the Equal Protection guarantees, but still had to fault the judge for not knowing this–which he certainly did.

The initial characterization was fair. The second characterization was unfair. After it was pointed out that it wasn’t accurate, the third was less unfair, but still a cheap shot.

Earlier this week I blogged about Judge Leon’s opinion D.D.C. finding that the contraceptive mandate could not be applied to March for Life, a non-religious pro-life group, because it violates Equal Protection. In one of the more uninformed critiques of the opinion, Michael Hiltzik of the Los Angeles Times makes a mistake that shows a dearth of basic constitutional law knowledge:

Because the contraception mandate applies to secular employers but not religious groups, he found that it “violates the equal protection clause of the Fifth Amendment” and is therefore “unconstitutional.” (Leon is typically sloppy here: the equal protection clause is found in the Fourteenth Amendment, not the Fifth. Shouldn’t a federal judge know this?)

If Hiltzik had read the Supreme Court’s 1954 decision in Bolling v. Sharpe–where the Court found the District of Columbia’s (federal) segregated school system was unconstitutional– or at a minimum Judge Leon’s opinion, he would know what all first-year law students learn–the Supreme Court has found an equal protection component inherent in the 5th Amendment’s Due Process Clause. (Whether this is consistent with original meaning is a far different question). This was how Justice Kennedy in Windsor found that DOMA was inconsistent with equal protection–it was a federal law, so he had to look to the 5th Amendment, not the 14th. Before calling a federal judge sloppy, a Pulitzer-Prize winning columnist should get his facts straight.

H/T Robert Dittmer

Update: Hiltzik tweets back that there is indeed no “equal protection clause of the Fifth Amendment.”

Bolling, which you cite: “The Fifth Amendment…does not contain an equal protection clause.” Bolling cites the 14th https://t.co/b3d9G5KwXC

— Michael Hiltzik (@hiltzikm) September 2, 2015

He is right. Bolling stated this clearly:

The Fifth Amendment, which is applicable in the District of Columbia, does not contain and equal protection clause, as does the Fourteenth Amendment, which applies only to the states.

But it is a common enough usage that I’m not troubled. I did a WestLaw search of the AllFeds database for “equal protection clause of the Fifth Amendment.” It pulled up 600 judges who used that exact locution. In contrast, a search for “equal protection component of the Fifth Amendment” (the more accurate phrase) yielded only 841 hits. Here is a sampling after the jump.

Update 2: Further, it is often colloquially said that a state police officer’s search violated the 4th Amendment. This isn’t the case. In fact, the state police officer violate the 4th Amendment, incorporated into the 14th Amendment’s due process clause. Consider how Justice Alito framed the issue in United States v. Windsor:

The only possible interpretation of this statement is that the Equal Protection Clause, even the Equal Protection Clause as incorporated in the Due Process Clause, is not the basis for today’s holding.

United States v. Windsor, 133 S. Ct. 2675, 2706, 186 L. Ed. 2d 808 (2013)

(more…)

My Lex Predict colleagues Daniel Katz and Mike Bommarito, along with Tyler Soellinger and James Chen, have published a fascinating study of how securities markets react to the Supreme Court. The authors find:

Across all cases decided by the Supreme Court of the United States between the 1999-2013 terms, we identify 79 cases where the share price of one or more publicly traded company moved in direct response to a Supreme Court decision. In the aggregate, over fifteen years, Supreme Court decisions were responsible for more than 140 billion dollars in absolute changes in wealth.

For example, here is the graph showing the abnormal returns in the stock for Myriad Genetics, before and after the Supreme Court’s complicated decision at 10:00.

You can see the spike right after 10:00 when the decision was released.The authors explain:

As displayed in Figure 1, the Court’s compromise decision initially confused the equity market. Fueled in part by media reports, would-be arbitrageurs interpreted the Court’s decision as positive to Myriad in the initial hours of trading. However, this view was ultimately displaced as more careful reading and subsequent understanding revealed that the decision was highly unfavorable to Myriad’s business interests. As a result, the stock began to trade down in the second half of the session. Media coverage following the initial trading day called it a “wild ride” and a “market whipsaw.”

As the dust settled, the Court’s decision was indeed detrimental to Myriad’s long-term financial value. Even after controlling for overall market trends, Myriad’s stock lost in excess of 20% of value over the two-day trading window. Attendant to this change in price, there was also a significant increase in volume as traders sought to shift their positions in light the Court’s decision. Specifically, on the date of decision, there was roughly a thirteen-fold increase in trading volume of the stock. The day thereafter witnessed an eighteen-fold increase in trading volume.

The article also highlights a number of SCOTUS decisions that yielded statistically significant movements on the market. For examples, these graphs illustrate what happened after 10:00 in four cases:

• Limelight Networks v. Akamai (2014): The Court held the answer was no and that decision was highly beneficial to Limelight Networks (LLNW). As displayed in Figure 5, the stock experienced an almost immediate gain of 5%, finishing the day up nearly 15%. The second day of trading saw LLNW continue to steadily rise into the afternoon of the session.
• Coeur Alaska v. SE Alaska Conservation Council (2009): “As displayed in Figure 5, within hours, the Coeur stock (CDE) traded up 10% and finished the day by posting S&P adjusted cumu- lative abnormal returns around 15%. The following day saw some small additional gains, but most of the returns had been established in the first trading day. “
• Altria Group v. Good (2008): “As displayed in Figure 5, following this Court announcement, Altria’s (MO) stock immediately trended down, followed by lateral trading for much of the balance of the date of decision. In the following day, Altria’s continued to decline relative to the S&P as the financial implications of the Court’s decision began to become more widely understood. Ultimately, at the close of the two-day window, the stock had experienced a negative cumulative abnormal return of nearly 9%. “
• Whitman v. American Trucking (2001):  “While the Court’s decision was somewhat mixed, Figure 5 reveals what appears to be a clear negative market reaction to the Court’s decision. The then largest automaker General Motors (GM) traded down over the next two sessions.13 ”
  

The portion of the paper that hits closest to home studies the impact of NFIB v. Sebelius on the leading healthcare companies:

Fascinatingly, the insurance companies surged during the initial reporting that the Court invalidated the mandate. (This counters the conventional wisdom that the insurance companies are happy with Obamacare…). But when everything settled, and everyone realized what happened, the insurance stocks tumbled. The only stocks that continued to grow was Hospital Corporation of America and Magellan Health Services. Aetna, Cigna, Humana, and Anthem all fell.

In Figure 6, we plot cumulative abnormal returns for a significant number of healthcare related stocks including Aetna (AET), Cigna (CI), Hospital Corporation of America (HCA), Health Net (HNT), Humana (HUM), Magellan Health (MGLN) and Anthem / Well Point (WLP). Over the two-day trading window, the Court’s decision drove down the price of a variety of health insurance companies while simultaneously increasing the value of one large hospital conglomerate (HCA) and a healthcare management business (MGLN). Interestingly, each of the stocks of the health insurance companies that ultimately trended downward experienced a significant short term uptick in the immediately aftermath of the Court’s decision. This is likely due to the widespread initial misreporting of the Court’s decision, which appeared to engender market confusion in the immediate aftermath of the Court’s ruling.14 However, unlike the Myriad case discussed earlier, the market quickly corrected itself in response to the subsequent accurate reporting of the Court’s decision. Collectively, among the stocks we evaluated in this study, the Obamacare decision was responsible for absolute changes in shareholder wealth in excess of 6.3 billion dollars.

Very cool.

In 2011, I noted that Ted Franks (who is now my attorney) made an investment decision based on his predicted outcome in Wal-Mart v. Dukes. He was so confident that the Supreme Court would reverse the 9th Circuit that he made a leveraged bet–of 10% of his net assets–that WMT (Wal-Mart’s symbol) will bounce. At the time, 76% of FantasySCOTUS members predicted a reversal. The great, and late Larry Ribstein suggested markets need greater sources of information to make these sorts of investments.

Unfortunately, Ted’s bet didn’t pan out. WSJ Law Blog reported:

No, unfortunately for the lawyer he was in court all morning, challenging the $3.4 billion settlement reached in 2009 in the high-profile Indian trust litigation, which claims the federal government mismanaged the revenue in American Indian trust funds. (Here’s an LB post on the settlement in that case.)

Frank told the Law Blog that by the time he got out of the Cobell settlement hearing, for a noon lunch break, he had missed the bump from the Dukes ruling.

“There were 90 people in the courtroom,” he said. “I couldn’t say, ‘can we stop the proceedings, because I need to engage in a stock sale.’”

Now, it seems Ted is not alone. Others are taking advantage of their SCOTUS predicting prowess.

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.