An Uncertain Future: The Supreme Court Docket

Transcription

1 An Uncertain Future: The Supreme Court Docket In the term, despite positive outcomes in several high-profile cases, the conservative wing of the Supreme Court managed to accomplish a great deal to advance its agenda. From eviscerating one of the most important and effective laws from the Civil Rights movement, to insulating big business from meaningful consumer action, to undercutting adequate redress for victims of workplace harassment, the Roberts Court has achieved its right-wing agenda with alarming success. The Supreme Court s upcoming term is already slated to be equally contentious and potentially detrimental to everyday Americans while shielding corporate interests from accountability. The granted cases concern issues that could further jeopardize our criminal justice system, impose disparate access to the political process, and tip the scale further in favor of corporate interests by insulating them from liability and allowing them disproportionate influence in elections. Specifically, in this term the Court could: Eliminate limits on aggregate direct contributions to candidates and party committees (McCutcheon) Strike down buffer zone laws, which protect women and families from harassment when accessing reproductive and family planning services (McCullen) Impose disparate restrictions on access to political processes for students of color (Schuette) Make it easier for corporate interests to escape accountability for harms caused to consumers (Mississippi ex rel Hood, Chadbourne) Strip the president of authority to appoint officials to vital government positions (Noel Canning) Severely impair criminal defendants ability to receive a fair trial and sentencing (Burrage, Titlow) Weaken the constitutional wall between church and state (Galloway) Take away one of labor s most powerful and uncontroversial unionizing tools (Mulhall) Provide police with a loophole to conduct a warrantless search of a defendant s home despite his or her explicit objections (Fernandez) I. Corporate Accountability 1. Mississippi ex rel Hood v. AU Optronics Corporation 1

2 Issue: Parens patriae actions under the Class Action Fairness Act Argument date: November 6, 2013 Mississippi s attorney general filed a parens patriae action in state court against several LCD television screen manufacturers all of which are multinational corporations for violating state antitrust and consumer protection laws. The defendants removed the case to federal court under the Class Action Fairness Act of 2005 (CAFA), arguing that the state represented a class of LCD screen purchasers. The District Court for the Southern District of Mississippi granted the state s motion to remand the case to state court, but the Fifth Circuit reversed, holding that parens patriae actions qualify as mass actions under CAFA, and therefore removal was proper. Using a claim-by-claim approach, the Fifth Circuit determined that, because a parens patriae action is filed on behalf of state citizens well-being, they are considered real parties in interest. If the Fifth Circuit s decision to allow removal of parens patriae actions stands, the state s case would be significantly burdened by a procedural nightmare 1 because the district court would be required to identify every real party in interest (i.e., every individual beneficiary of the proposed claim). Moreover, every individual plaintiff s claim that does not exceed the $75,000 amount-in-controversy would be remanded to state court, 2 substantially undercutting the power of the class action in federal court. Result: The Supreme Court reversed the Fifth Circuit s decision, finding unanimously that the Mississippi Attorney General was the only plaintiff in the lawsuit, and that adopting the state s view that the term plaintiff should include all of the claimants on whose behalf the state is suing would stretch the meaning of plaintiff beyond recognition. Therefore, parens patriae actions do not count as class actions falling within the scope of the Class Action Fairness Act, and so the statute is irrelevant to this case and the state is free to litigate on behalf of its residents in state court. 2. Chadbourne & Parke LLP v. Troice, Proskauer Rose LLP v. Troice, Willis of Colorado Inc. v. Troice Issue: Ensuring class action plaintiffs have adequate access to remedies Argument date: October 7, 2013 In 1998, Congress enacted the Securities Litigation Uniform Standards Act (SLUSA), which prohibits plaintiffs from bringing state law class actions alleging misrepresentation or omission of a material fact in connection with the purchase or sale of certain securities. A group of investors brought a class action against a brokerage firm and two law firms in connection with their representation of Allen Stanford the former financier convicted and sentenced to 110 years in prison for perpetrating an infamous $7 billion Ponzi scheme. Specifically, the plaintiffs alleged that the firms breached their fiduciary duty by inducing the plaintiffs to buy certificates of deposits (CDs) issued by Stanford s bank. The district court 1 Brief for Public Citizen, Inc. as Amici Curiae supporting Petitioner, granted Mississippi ex rel Hood v. AU Optronics Corp., 133 S. Ct (2013). 2 See id. 2

3 held that the state law claims could not be brought because they were sufficiently related to the securities claims covered by SLUSA. The Fifth Circuit reversed. The main issue the Supreme Court will consider in Chadbourne is whether a suit for aiding and abetting securities fraud is preempted by SLUSA. If the Supreme Court reverses the Fifth Circuit s decision, it will severely restrict the ability of plaintiffs to bring class actions against corporations that insulate white-collar criminals like Allen Stanford. Result: The Supreme Court affirmed the Fifth Circuit by a vote of 7-2 in an opinion authored by Justice Breyer, with Justice Thomas concurring and Justice Kennedy authoring a dissenting opinion that Justice Alito joined. The Court held that SLUSA does not preclude the plaintiffs state-law class actions. The Court held that the phrase misrepresentation or omission of a material fact in connection with the purchase or sale of a covered security refers to a connection that matters. According to the Court, a connection that matters is one where the misrepresentation makes a significant difference to someone s decision or purchase or sell a covered security. Justice Breyer wrote that a broader interpretation... would interfere with state efforts to provide remedies for victims of ordinary state-law frauds, despite the fact that the Litigation Act [SLUSA] purposefully seeks to avoid such results.... Moreover, the Court found that the plaintiffs in this case did not purchase or sell a covered security. Rather, the plaintiffs purchased certificates of deposit that Stanford had promised were backed by safe, liquid investments. Therefore the plaintiffs were not alleging misrepresentations in connection with a purchase or sale of a covered security; they [a]t most, allege misrepresentations about the Bank s ownership of covered stock. 3. DaimlerChrysler AG v. Bauman Issue: Jurisdiction over foreign corporations for human rights abuses Argument date: October 15, 2013 A group of former DaimlerChrysler AG employees and representatives of deceased employees sued in California over human rights abuses committed by the company in Argentina in the 1970s. Specifically, the company is alleged to have identified plaintiffs as subversives or agitators to state security forces stationed within its plant, knowing that they would be kidnapped, detained, tortured, or murdered as a result. Once plaintiffs were arrested or disappeared, the company allegedly hired the police chief responsible, made him its chief security officer, and provided him legal assistance. DaimlerChrysler AG s subsidiary, Chrysler, sells billions of dollars worth of automobiles in California. At issue in DaimlerChrysler is whether a court may have jurisdiction over a defendant corporation where the corporation has a subsidiary that does substantial business in that jurisdiction. This past term in Kiobel v. Royal Dutch Petroleum, 3 the Court dealt a serious blow to decades of settled federal law by disallowing foreign cubed lawsuits under the Alien Tort Statute. The Court has the opportunity in this case to clarify what kind of 3 Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct (2013). 3

4 connection to the forum state would warrant federal jurisdiction; however, the Court could also further curtail plaintiffs access to justice for human rights abuses. Result: In a unanimous decision authored by Justice Ginsburg, the Court held that the workers could not sue DaimlerChrysler AG in California. It held that while DaimlerChrysler did have contacts with California, its contacts were very slim and unrelated to the wrongful actions alleged in the lawsuit. To allow the district court to hear and decide such a case, in the view of the Court, would give the courts a global reach over any foreign country that did any amount of business however slim or minimal in a state. Justice Sotomayor filed a separate opinion concurring in the judgment, arguing that the Court ignores the lodestar of our personal jurisdiction jurisprudence by focusing more on the quantity of contacts the company has outside of the state than by focusing on the contacts that the company does have within the state. 4. National Labor Relations Board v. Noel Canning Issue: Presidential recess appointment power Argument date: January 13, 2014 The National Labor Relations Board, which implements the National Labor Relations Act and hears labor disputes between employers and workers, requires at least three sitting members for a quorum. In January 2012, the five-member Board had three vacancies; meanwhile, the Board was unable to issue decisions on pending cases. One such matter was a disputed agreement between Noel Canning, a soft-drink bottling company, and a local union to implement a 40-cents-per-hour pay raise. At that point, the Senate was in the midst of a three-week period during which it provided that no business [was to be] conducted, and no senators were required to attend meetings, aside from a single senator to hold pro forma sessions. Acting under his recess appointment authority enumerated in the Constitution, President Obama temporarily appointed three members to bring the Board back to fully functioning capacity. The NLRB panel then determined that Noel Canning had in fact agreed to the 40-cents-per-hour wage increase, despite the company s denial that it made such an agreement. The company brought a constitutional challenge to President Obama s recess appointments in the conservative-dominated Court of Appeals for the District of Columbia Circuit. The D.C. Circuit took an unprecedented approach, holding that the president s recess appointment power only extends to breaks between Congress s annual sessions, and that the president may use this power to fill only those positions that become vacant during that same recess. At issue in this case is whether the Recess Appointments Clause grants the president authority to fill vacancies when the Senate is unavailable for advice and consent, and whether the president may fill vacancies that existed before the recess. Under the D.C. Circuit s logic, hundreds of recess appointments by presidents of both parties, going back over a century, would be invalid. This case has broad implications for the separation of powers, and will impact President Obama s and all future presidents ability to fill vacant government positions. Result: In a unanimous decision authored by Justice Breyer, the Supreme Court upheld the D.C. Circuit s conclusion that the NLRB appointments at issue were invalid under the Recess 4

5 Appointments Clause. The Court, however, rejected the D.C. Circuit s reasoning for so finding, and held that a vacancy need not first occur during a recess for the President to be able to fill the vacancy through the Recess Appointments Clause, and that both intra- and inter-session breaks of Congress count as formal recesses. Instead, the Court held that these particular appointments were invalid because they occurred during what amounted to only a three-day recess because pro forma sessions of the Senate do count as real sessions that break up what could otherwise be lengthy recesses, the recess in question therefore lasted only three days, and recesses of shorter than 10 days are presumptively too short to invoke the Recess Appointments Clause. In so finding, the Court relied heavily on the intent of the Founders and historical practice of the executive. Justice Scalia joined by Justices Thomas, Alito, and Chief Justice Roberts concurred in the judgment only, and argued that the Court should have affirmed the D.C. Circuit in its entirety. Namely, he would have held that recess appointments may be made only during an inter-session recess of Congress, and that the only vacancies that may be filled during those recesses are the ones that first come about within the time of the recess. 5. Environmental Protection Agency v. EME Homer City Generation LP Issue: Protecting clean air from excessive pollution Argument date: December 10, 2013 The Clean Air Act s good neighbor provision prohibits upwind states from emitting pollutants that contribute significantly to downwind states ability to meet air quality standards. To enforce this provision, the EPA created the Transport Rule, which allows the agency to impose a federal implementation plan on polluting upwind states that contribute significantly to downwind states ability to meet air quality standards, and which have failed to develop a state implementation plan to control pollution or have done so inadequately. In 2012, a 2-1 D.C. Circuit panel invalidated this important provision that allowed the EPA to regulate ambient air quality, ignoring plain statutory text, jurisdictional bars, and circuit precedent to reach its decision imposing its own preferred vision of cooperative federalism. In doing so, two of the D.C. Circuit s conservative judges (Brett Kavanaugh and Thomas Griffith, both George W. Bush appointees) stripped the EPA of its congressionally granted ability to effectively manage cross-state air pollution. If the Supreme Court refuses to overturn the D.C. Circuit ruling, nothing will prevent corporations like EME Homer City Generation operator of coal-fired electric generating units from emitting more pollutants indiscriminately and at the expense of other states. Result: The Supreme Court, in an opinion authored by Justice Ginsburg, reversed the D.C. Circuit and upheld the EPA s authority to enforce the CAA s good neighbor provision through the Transport Rule. In doing so, the Court acknowledged that the agency must have discretion to interpret its statutory obligations. 6. Utility Air Regulatory Group v. EPA Issue: EPA s ability to regulate pollution emissions. Argument Date: February 24,

6 For 33 years, the Environmental Protection Agency has under the Clean Air Act authority that allows the agency to regulate any air pollutant regulated not just air pollution itself, but the source of that air pollution. In 2010, the EPA therefore began to regulate the pollution, or exhaust, exuded by cars and trucks ( mobile sources ), and then extended that logic to regulate industrial factories and generating plants for power companies ( stationary sources ). The Supreme Court accepted six cases with Utility Air Regulatory Group as the leading case to answer the lone question of whether federal law permits the EPA to use the legal regime for mobile sources as a trigger for creating an analogous regulatory regime for stationary sources. If the Supreme Court broadly decides against the EPA s regulatory authority, it could severely limit the EPA s ability to regulate pollution in the face of global warming. Result: In a split and highly technical decision, the Supreme Court limited the EPA s regulatory authority in some ways (in a 5-4 split), and affirmed it in other ways (in a 7-2 split). In Part I of an opinion authored by Justice Scalia and joined by four other Justices, the Court majority held that the EPA cannot rely on its authority to regulate emissions from mobile sources to regulate greenhouse gas emissions from all stationary sources. Without further congressional action, it may not regulate greenhouse emissions from smaller sources like apartment buildings and schools. In Part II of the opinion, Justice Scalia, joined by six other Justices, concluded that where the EPA is already regulating pollutants (other than greenhouse gases) from specific sources, it may require the sources to use the best available technology to limit greenhouse gas emissions. Only two other Justices Justice Kennedy and Chief Justice Roberts agreed with the entirety of Justice Scalia s opinion. Justices Alito and Thomas joined the first part of the opinion, which struck down the EPA s more expansive regulatory authority. Justices Breyer, Ginsburg, Kagan, and Sotomayor who would have read the all pollutants language in the CAA as allowing the EPA to reach all forms of greenhouse gases dissented from Part I of Justice Scalia s opinion, but joined Part II upholding the EPA s authority to impose new technology to limit greenhouse gas emissions from sources the EPA is already regulating. 7. Halliburton Co. v. Erica P. John Fund, Inc. Issue: Investors right to sue for securities fraud Argument Date: March 5, 2014 In 1988, the Supreme Court held in Basic Inc. v. Levinson 4 that, when investors sue for losing money because of securities fraud, they do not need to show that they actually relied on misinformation when purchasing the stock in question. Rather, under the (rebuttable) fraudon-the-market presumption, it is assumed that the investors bringing suit relied upon the misinformation because an efficient stock exchange will reflect all the information there is about a given security. Basic, Inc. was a 4-2 decision, with only six justices taking part; U.S. 224 (1988). 6

7 Justices Kennedy and Scalia, who are the only remaining justices on the Supreme Court from that time, did not take part in the decision. 5 In the current case, a class of investors sued Halliburton for putting out misleading information that affected the company s stock price. Halliburton argues that the reliance theory from Basic is flawed, and that the presumption is particularly incorrect as applied to class action lawsuits because it does not require the class members to prove that their own losses can be traced to the misinformation. On the other hand, the investors argue that the Supreme Court s precedent in Basic, Inc. set the foundation for modern, private securities litigation. Halliburton is asking the Supreme Court to either overrule Basic, Inc. or at least to require investors to show that the misinformation did impact the market price of a stock. The Supreme Court granted review on both questions. If the Supreme Court backtracks on its ruling from Basic Inc, investors who have been harmed by corporations misinformation will face a much higher burden to hold corporations accountable. Result: In a unanimous decision authored by Chief Justice Roberts, the Supreme Court refused to overturn its precedent in Basic, Inc. and upheld the fraud-on-the-market presumption. However, the Court held that the defendant may rebut the presumption at the class certification stage by showing a lack of price impact rather than having to wait to rebut the presumption at the merits stage, after a class has already formed. Justice Ginsburg, joined by Justices Breyer and Sotomayor, authored a brief concurrence to emphasize that lower courts should interpret the decision as placing the burden of proof squarely on the defense to demonstrate a lack of price impact, with no added burden on the plaintiffs. Justice Thomas also filed a separate concurrence, joined by Justices Scalia and Alito, to write that he would overturn Basic, Inc. v. Levinson. 8. Hobby Lobby Stores, Inc. v. Sebelius & Conestoga Wood Specialties Corp. v. Sec'y of the United States HHS Issue: Affordable Health Care Act s contraception coverage requirement Argument Date: March 25, 2014 The Supreme Court agreed to hear two of the many cases asking whether profit-making companies owned by individuals with religious objections to birth control must be exempted from the Affordable Care Act s (ACA) contraception coverage requirement. Under the ACA, employers with more than 50 employees are required to provide health insurance coverage for various services related to reproductive health, including birth control. Although strictly religious organizations are exempted from this requirement, profit-making businesses are not. Hobby Lobby and Conestoga Wood Specialties are both profit-making companies owned by religious families that do not want to cover birth control under the ACA. In Hobby Lobby, the Tenth Circuit struck down the contraception coverage requirement based on the Religious Freedom Restoration Act (RFRA). In Conestoga, however, the Third Circuit directly disagreed with the Tenth Circuit s decision and it rejected 5 Due to opaque recusal procedures, we do not know why Justices Kennedy and Scalia recused themselves from this case. 7

8 the challenge to the ACA s coverage requirement. That court held that the owners religious beliefs do not flow through to the profit-making company under either RFRA or the First Amendment and therefore the company cannot claim religious freedom rights. The Supreme Court, in taking both cases, will hear arguments under both RFRA and the First Amendment. Result: In a split 5-4 decision authored by Justice Alito, the Supreme Court held that closely-held corporations (which include both petitioners) are people for the purposes of RFRA. Therefore, the Court used the RFRA balancing test and found without much discussion that the contraceptive coverage requirement under the ACA imposes a substantial burden on Hobby Lobby s & Conestoga Wood Specialties Corp. s religious freedom. The next part of the balancing test under RFRA is whether the law serves a compelling government interest and, if so, whether the law is the least restrictive means to achieve that compelling interest. The Court assumed (without deciding) that the government has a compelling interest in guaranteeing cost-free access to contraception. Justice Kennedy s was stronger on this point, noting, It is important to confirm that a premise of the Court s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling government interest in the health of female employees. Nonetheless, the Court majority held that the contraception coverage requirement is not the least restrictive means to achieve that interest. Instead, Justice Alito wrote that a less restrictive means exists in the accommodation that the government provides for religiously-affiliated organizations and nonprofits. Even in suggesting the accommodation as a solution, however, Justice Alito made it clear that the Court was not ruling on the accommodation s constitutionality. In fact, three days after the Hobby Lobby decision, the Supreme Court temporarily enjoined the accommodation for Wheaton College while the school challenges the accommodations constitutionality. The temporary injunction means that Wheaton College cannot be required to certify its status as a religiously-affiliated organization under the current process, which would trigger third-party coverage of contraception for its employees. In with a dissent joined by Justices Breyer, Kagan, and Sotomayor, Justice Ginsburg called the majority s opinion a decision of startling breadth. Throughout her opinion, Justice Ginsburg noted that the ramifications of this case could sweep beyond the seemingly narrow focus of the majority opinion. After listing instances of employers wanting to discriminate on the basis of race, sex, and sexual orientation, she asked, 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? Then, quoting the majority opinion, she asked, 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? Justice Ginsburg also wrote that the Court s holding could extend to employers with religiously grounded objections to blood transfusions, antidepressants, medications derived from pigs, and vaccinations. In response to Justice Ginsburg s dissent, the majority noted that they were concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer s religious 8

9 beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them. Justice Ginsburg, however, wrote that once the Court gets into the question of what religious objections are worthy of legal accommodations and which ones are not, the Court then could be perceived as favoring one religion over another. The Court, I fear, she wrote, has ventured into a minefield. II. Access to Justice & Civil Rights 1. McCullen v. Coakley Issue: Constitutionality of buffer zones, which protect women and workers at abortion clinics from harassment by anti-choice groups Argument date: January 15, 2014 Over 10 years ago, in the Supreme Court s 2000 decision in Hill v. Colorado, 6 a 6-3 majority upheld Colorado s buffer zone law, which prevents anti-abortion protesters from harassing patients and interfering with the operation of clinics which provide abortion services. McCullen threatens to dismantle this precedent, over a decade old, and scale back the ability of states to protect women and their families access to reproductive services. Massachusetts s law, which mandates a 35-foot buffer zone around abortion clinics, is very similar to the law upheld in Hill, with one significant difference: the Colorado law barred all speakers from the 100-foot buffer zone, whereas the Massachusetts statute allows clinic employees and agents to access and communicate within the buffer zone. The opponents of the law urge the Court to strike down the law as a content-based restriction on speech that would violate the First Amendment because of this exception. Perhaps recognizing the similarity of the law at issue with that upheld in Hill, or seeing an opportunity with a reconstituted, ideologically-driven Court majority, the law s opponents have also asked the Court to overrule Hill and strike down buffer zone laws entirely. The most significant difference between Hill and McCullen is the membership of the Supreme Court, leaving it to be seen whether a new, all-male majority will join with the conservative attacks on women s rights and reproductive freedom across the country and strike down buffer zone laws. Result: The Supreme Court unanimously declared Massachusetts s buffer zone to be an unconstitutional violation of the First Amendment, but neither overruled nor affirmed its precedent in Hill v. Colorado. In the opinion, the Chief Justice referred to the protestors outside the abortion clinic as counselors who consider it essential to maintain a caring demeanor, a calm tone of voice, and direct eye contact during exchanges with the women attempting to enter the clinic. In the First Amendment analysis, Chief Justice Roberts found that although the law which created a fixed 35-foot buffer zone around abortion clinics was both viewpoint neutral and content neutral, it nonetheless failed constitutional muster because it was not sufficiently narrowly tailored to serve a significant government interest. The Court found that the law does serve a significant interest in promoting public safety, 6 Hill v. Colorado, 530 U.S. 703 (2000). 9

10 access to healthcare, and unobstructed use of public sidewalks, but also found that the fixed buffer zone impose[s] serious burdens on petitioners speech, and has taken a toll, as evidenced by protestors claims that the number of women they have managed to dissuade from abortion has decreased since the law s passage. In striking the law down, Chief Justice Roberts suggested other, narrower alternatives (without claiming they were necessarily constitutional), such as a floating buffer zone and heavier use of police involvement. Meanwhile, the precedent that was seemingly at the heart of this case Hill v. Colorado received only one mention from the Chief Justice at the beginning of the opinion, identifying the law in that case as the model for an earlier Massachusetts buffer zone law. Justice Scalia, however, in a concurrence joined by Justices Thomas and Kennedy, wrote separately to say that while they agreed with the Court s judgment that the Massachusetts buffer zone law should be struck down, they would have gone further to overturn Hill v. Colorado. Justice Alito authored a separate concurrence stating that he believed the law discriminated based on viewpoint, since clinic employees were allowed to speak within the buffer zone but protestors are not. 2. Burrage v. United States Issue: Safeguarding fair criminal trials and sentencing Argument date: November 12, 2013 Marcus Burrage was arrested and convicted for dealing heroin to a drug user who died while high. At trial, the decedent s wife testified that she had seen her husband use marijuana and oxycodone the day before his death. One issue in this case is whether, as the Eighth Circuit held, distributing drugs where death results is a strict liability crime that is, a defendant can be convicted and sentenced to a harsh mandatory minimum without possessing any measure of intent and regardless of whether the death was foreseeable. Other federal appellate courts have found the opposite, noting that such a standard could lead to absurd results. A second important question is whether a defendant can be convicted of distributing drugs where death results (and sentenced to a high mandatory minimum) even if the drug sold by the defendant only contributes to, and is not the sole cause of death. The overdose victim in this case had several drugs in his system at the time of death, and medical experts could not determine if the death would have occurred without the drug sold by the defendant. If the Supreme Court upholds the Eighth Circuit s decision in Burrage, it will be even easier to sentence defendants to harsh sentences without any specific proof of intent or causation. Result: In a unanimous opinion authored by Justice Scalia, the Supreme Court held that a drug dealer who sold drugs to a user who later died from overdose may only receive an enhanced, mandatory minimum sentence if the government can prove that the drug sold was the actual cause of the user s death; it is not enough that the drug was a contributing cause of the user s death. The Court interpreted the results from language in the federal statute requiring heightened sentences for drug sales causing death or serious injury as requiring this direct result. In doing so, Justice Scalia compared the results from language in the statute to similar language in Title VII s anti-retaliation provision. Justice Ginsburg, joined by 10

11 Justice Sotomayor, concurred in the judgment and wrote separately to disapprove of that analogy and argue that the Court should not apply the same interpretation to Title VII cases. 3. Burt v. Titlow Issue: Ineffective assistance of counsel in plea agreements Argument date: October 8, 2013 The Supreme Court has established that the Sixth Amendment protects the right to effective assistance of counsel, and recently affirmed that this framework extends to the plea bargaining process. In this case, the defendant s second attorney completely failed to investigate her case before recommending that the defendant withdraw a plea agreement negotiated by her first attorney, which was a guilty plea that would have reduced the charges against her. The Sixth Circuit held that the second counsel violated the defendant s Sixth Amendment right to effective assistance of counsel in advising her to withdraw the guilty plea, therefore leading the defendant to receive the longer prison sentence for murder. The main issue the Supreme Court will consider is whether a convicted defendant s subjective testimony that she would have accepted a plea if not for the ineffective assistance of counsel is sufficient to demonstrate that the defendant would have accepted the plea deal, or if additional objective evidence is required. Imposition of an objective requirement would make it considerably more difficult for defendants to bring ineffective assistance of counsel claims, even when the sentence received at trial is many times more severe than the plea agreement and an attorney s conduct was clearly unreasonable. Result: The Supreme Court unanimously reversed the Sixth Circuit in a decision, with the majority opinion written by Justice Alito and joined by all Justices except Ginsburg. Rather than addressing issues of attorney incompetence, the Supreme Court found that the Sixth Circuit improperly assum[ed] ineffectiveness on the part of counsel even though the [factfinding] record was silent on that issue. Justice Sotomayor joined fully in the Court s opinion, but wrote separately to emphasize that, in her view, [r]egardless of whether a defendant asserts her innocence (or admits her guilt), her counsel must make an independent examination of the facts, circumstances, pleadings and laws involved and then offer his informed opinion as to what pleas should be entered. Justice Ginsburg alone did not join the opinion and only concurred in the judgment itself; she found the state court s claim that Titlow s attorney acted reasonably to be dubious. 4. Madigan v. Levin Issue: Plaintiffs access to recourse for discrimination claims Argument date: October 7, 2013 Harvey Levin, a former Illinois Senior Assistant Attorney General, sued the state of Illinois and various employees of the Attorney General s office, including the Attorney General herself, for allegedly engaging in age discriminatory employment practices. The plaintiff was over the age of 60, and was replaced by a female attorney in her thirties. Levin brought suit directly under 42 U.S.C (known as the Ku Klux Klan Act) and the constitutional Equal Protection Clause, as well as the Age Discrimination in Employment Act (ADEA). 11

12 The Seventh Circuit affirmed the district court holding that claims for age discrimination in employment may be brought under the Equal Protection Clause of the Constitution, and are not barred by the ADEA. The Supreme Court took this case to resolve a circuit conflict on whether age discrimination claims brought under the Equal Protection Clause are barred by the ADEA. The Equal Protection Clause provides an important alternative avenue for plaintiffs to remedy claims of discrimination, and the Court should uphold the Seventh Circuit s decision in Levin s favor. Result: On Tuesday, October 15, the Supreme Court dismissed Madigan v. Levin as being improvidently granted. 5. Town of Greece v. Galloway Issue: Separation of church and state and legislative prayer Argument date: November 6, 2013 For the first time in 30 years, the Supreme Court will rule on government prayer in legislative meetings. None of the current justices were on the Court in 1983 when it decided Marsh v. Chambers, which upheld an opening prayer in the Nebraska state legislature. In Marsh, legislative prayer was upheld because it was a practice dating back to the country s founding. This case involves the practice of legislative prayer at the beginning of each town board meeting in the Town of Greece, New York. In 1999, the town s supervisor began inviting clergymen to begin its meetings with a short prayer. A town employee was charged with soliciting local religious organizations and compiling a list of potential prayer-givers. Until 2008, when the suit was filed, the list contained only Christian organizations and clergy. Although the town alleges that it did not discriminate against non-christian prayer-givers, from 1999 to 2007, every prayer-giver was a member of the Christian clergy and delivered an invocation at the town s invitation. Two town residents filed a suit challenging the legislative prayer. The Second Circuit held that, upon viewing the totality of the circumstances, legislative prayer in the Town of Greece was an endorsement of one particular religion in violation of the Establishment Clause of the Constitution. The issue presented is whether the practice violates the Establishment Clause of the Constitution notwithstanding the absence of explicit discrimination in the selection of prayergivers, when the prayer was led exclusively by clergy of one religion. Result: In a 5-4 decision authored by Justice Kennedy, the Supreme Court majority upheld the Town of Greece s legislative prayer policy as constitutional. The Court s majority found that the Establishment Clause of the First Amendment was not intended to prohibit legislative prayer, and that the prayer does not need to be sectarian in order to be constitutional. Otherwise, Justice Kennedy wrote, courts would be in the position of playing the arbiters of religious speech. So long as the legislative prayers do not coerce the public into religious observance which Justice Kennedy differentiates from offending the public the prayers pass constitutional muster. 12

13 Justices Alito and Thomas each authored concurrences; Justice Alito emphasized that a decision striking down the legislative prayer policy would put the government in the position of policing prayer, and Justice Thomas wrote separately to say that the Establishment Clause should be read as a constitutional provision protecting states rights, rather than individual rights. Justices Breyer and Kagan each wrote dissenting opinions. Breyer wrote that the Town of Greece did not do enough to make its legislative prayer inclusive of non-christian faiths. Justice Kagan, in her dissent joined by Justices Ginsburg, Breyer, and Sotomayor, wrote that by making no effort to inform non-christian clergy of the opportunity to deliver an invocation, the town marginalized religious minorities. 6. McCutcheon v. Federal Election Commission Issue: Aggregate limits on contributions to candidates and party committees Argument date: October 8, 2013 In McCutcheon, a wealthy Republican donor from Alabama and the Republican National Committee are challenging two-year caps on aggregate direct campaign contributions to candidates and party committees (aka hard money ) in hopes of further deregulating campaign finance. Under federal law, there are base contribution limits on how much an individual can contribute to a political candidate or political party committee, and there are separate limits on the aggregate amount that an individual can give in a two-year period. Individuals are currently permitted to contribute a total of $48,600 to candidate committees, and $74,000 to non-candidate committees. In McCutcheon, the Court will decide whether these aggregate limits as distinct from base contribution limits violate the First Amendment. Underlying McCutcheon is a longstanding distinction in campaign finance law that treats limits on expenditures differently from limits on contributions. Limits on independent expenditures face more exacting constitutional scrutiny and are often struck down as impermissible limits on speech, as they were in Citizens United, where the Court held that the independent expenditures of organizations as with those of individual people are constitutionally protected. On the other hand, the Court has long held that political contributions to candidates and parties are not speech and can be subject to greater regulation. As a case about contributions, McCutcheon falls on this more permissive side of the Court s precedents. If the Roberts Court decides to prohibit limits on aggregate contributions and to obliterate this distinction, it could put at risk a slew of reasonable campaign finance laws that aim to prevent the wealth of the few from dominating the voice of many. Result: In a plurality decision authored by Chief Justice Roberts and joined by Justices Alito, Kennedy, and Scalia, the Supreme Court struck down the aggregate limits on direct campaign contributions as an unconstitutional violation of an individual s First Amendment right to free political speech. In doing so, the Court did not alter the base limitations on contributions, nor did the plurality claim to be revisiting Buckely v. Valeo, the 1976 precedent that first upheld restrictions on direct individual campaign contributions and found 13

14 that campaign finance limits in some instances may be used to thwart the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions. The McCutcheon majority did, however, adopt the definition of corruption that it first used in Citizens United instead of the Buckely definition; it held that the only corruption Congress may constitutionally regulate through individual campaign finance reform is quid pro quo corruption, or, in other words, actual bribery. Justice Thomas joined in the judgment of the Court, but filed a separate concurrence to write that Buckley should be overruled. Justice Breyer authored the dissenting opinion, joined by Justices Sotomayor, Kagan, and Ginsburg. Justice Breyer wrote, Taken together with Citizens United, today s decision eviscerates our Nation s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve. 7. Schuette v. Coalition to Defend Affirmative Action Issue: Guaranteeing equal access to the political process Argument date: October 15, 2013 The Supreme Court has consistently held that affirmative action in public higher education is constitutional. In 2006, 57 percent of Michigan voters passed Proposal 2, a state constitutional amendment banning, among other things, the use of race and sex as relevant factors in public university admissions. The constitutional amendment also prohibits university admission officials from even considering whether or not to use race as a relevant factor in their decisions. At issue in this case is a doctrine that falls under the Fourteenth Amendment s Equal Protection Clause, known as the political process doctrine. The Court has held in prior cases that a decision-making process delegated to one body here the Regents of the University cannot be restructured to create a new set of rules that makes it more difficult for racial minorities to influence the political process than it is for other groups. Specifically, this case concerns whether the state s constitutional ban on affirmative action programs in public higher education creates an unfair burden for applicants who support diversity because a student who wants the university to use her legacy status as a relevant factor in her application can petition the regents directly, whereas a student who wants her race to be considered must seek a constitutional amendment. The Sixth Circuit, both when sitting as a three-judge panel and upon rehearing the case en banc, held that this ban does create an unfair burden when it noted that [n]o other admissions criterion for example, grades, athletic ability, geographic diversity, or family alumni connection suffered the same fate. If the Supreme Court were to reverse the Sixth Circuit s decision, it would severely obstruct supporters of racial diversity seeking recourse through the political process. Result: A divided Supreme Court reversed the Sixth Circuit and upheld Michigan voters ability to ban affirmative action in university admissions through a referendum to amend the state constitution. The Court was split 6-2 (Justice Kagan recused herself). The plurality opinion authored by Justice Kennedy and joined by Chief Justice Roberts and Justice Alito, while not explicitly overruling the political process precedents, narrowed those decisions drastically. Justice Scalia, in a concurrence joined by Justice Thomas, argued that the political process cases should be overruled. Justice Sotomayor authored a passionate dissent, 14

15 joined by Justice Ginsburg, that she read aloud from the bench. In her dissent, she acknowledged the effect the majority s decision has on affirmative action ( Although the only constitutional rights at stake in this case are process-based rights, the substantive policy at issue is undeniably of some relevance to my colleagues ) and she discussed the importance of affirmative action and the history of discrimination in Michigan. She countered Chief Justice Roberts statement from a previous case Parents Involved v. Seattle School District that the way to stop discrimination on the basis of race is to stop discriminating on the basis of race, by writing, This refusal to accept the stark reality that race matters is regrettable. The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. 8. Mount Holly v. Mount Holly Gardens Citizens in Action Issue: Disparate impact claims under the Fair Housing Act Argument date: December 4, 2013 The Court will no longer be hearing arguments in this case. In 2000, the Township of Mount Holly, New Jersey, began acquiring properties in one of its low-income neighborhoods, Mount Holly Gardens, to implement redevelopment plans which included demolition of most of the neighborhood s original homes. Most of the Garden s residents are African American and Hispanic. In 2008, Citizens in Action and residents of the Gardens filed suit in federal court, arguing that the Township violated the Fair Housing Act (FHA) and other federal antidiscrimination laws. The question the Court will consider is whether plaintiffs can use a disparate impact argument under the Fair Housing Act to establish discriminatory housing practices. Under disparate impact theory, plaintiffs may present statistical evidence to show the only reasonable explanation for discriminatory results against a particular group is discriminatory actions in the absence of a formally discriminatory policy. Disparate impact is a critical tool in civil rights enforcement, since second generation discrimination has replaced explicitly discriminatory policies in areas such as employment and housing. In other words, in 2013, discrimination is never made as plain as a no blacks allowed sign. Eleven circuit courts of appeal have held that the FHA allows disparate impact claims. The Supreme Court decided to hear Mount Holly even though the Solicitor General advocated against the Supreme Court hearing this case because forthcoming U.S. Department of Housing and Urban Development regulations are likely to render the issue moot and there is no circuit split on the issue of disparate impact under the FHA. A decision striking down disparate impact theory under the FHA could have dire consequences for the enforcement of many civil rights statutes. Result: On November 13, 2013, Mount Holly Township and residents of Mount Holly Gardens agreed to a settlement that was unanimously approved at a meeting of the Mount Holly Township Council. The case is therefore withdrawn from the Supreme Court s docket without any further action. 9. Cline v. Oklahoma Coalition for Reproductive Justice 15

16 Issue: Banning medical abortion Argument Date: The Court will no longer be hearing arguments in this case. In 2011, Oklahoma passed a law that limits doctors ability to prescribe drugs that cause medical abortion early in the first trimester. Often referred to as RU-486, the drug regimen was approved by the Food and Drug Administration in 2000 as an alternative to surgical abortion when pregnancy is discovered early in the first trimester. The Oklahoma law prohibits doctors from prescribing any abortion-inducing drug for an off-label use. The FDA approved RU-486 thirteen years ago with a label stating that the drugs should only be used until the 49th day of pregnancy, and specified that women be given a 600-miligram dosage. Today, however, it is widely accepted among doctors that the regimen may be used safely and effectively through the 63rd day of pregnancy, and that a dosage of 200 milligrams is sufficient. Such modern practice, however, is considered off-label use for the purposes of the Oklahoma law, which would require doctors despite evidence-based, common practice and acceptance across the profession to follow the original FDA label. At best, this would require doctors to give women three times more of the drug than is actually necessary, and limit its prescription to the 49th day of pregnancy rather than the 63rd, leaving those women to attain surgical abortions instead. At worst, the law could be interpreted to virtually ban the practice of medical abortion altogether. After accepting the case to its docket, the Supreme Court requested clarification from the state court about exactly which medications the statute applies to before moving forward to schedule the case for argument. If the Court does decide to go forward with the case, it may impose another major impediment to women s freedom of choice, essentially requiring women to attain costly and invasive surgical procedures instead of the physician-approved medical abortion regimen. Result: The Oklahoma Supreme Court answered the Supreme Court s inquiry by finding that the law would, if in effect, essentially ban medication abortion in the state. On November 4, 2013, the Supreme Court then dismissed the case as improvidently granted in a per curiam opinion. As a result, the Oklahoma Supreme Court s decision that the law is unconstitutional stands. 10. Unite Here Local 355 v. Mulhall Issue: The future of neutrality agreements in unionizing workforces Argument Date: November 13, 2013 In order to unionize a workforce through a non-contentious process, employers and employees will sometimes enter into neutrality agreements. These agreements set the ground rules for organizing where both sides offer promises and concessions. For example, the employer may promise not to oppose union representation, to allow the union onto its property, and to give the union employees names and addresses, and while the employees may promise to abstain from picketing, boycotting, or otherwise attempting to put pressure on the employer s business so long as the neutrality agreement remains in effect. In this case, the employer Mardi Gras entered into a neutrality agreement with its employees requiring Mardi Gras to recognize the union, to remain neutral if the union conducted an 16