NCSL Supreme Court Roundup Part II:

NCSL Supreme Court Roundup Part II: Schuette v. CDA (affirmative action / equal protection clause) McCullen v. Coakley (abortion buffer zone / 1 st Am.) McCutcheon v. FEC (campaign finance / 1 st Am. ) Lane v. Franks (gov t employee speech / 1 st Am. ) Harris v. Quinn (forced subsidies / 1 st Am. ) +quick word on Noel v. Harris appointments clause case, very interesting but not very relevant for states and localities Heidi Kitrosser, University of Minnesota Law School Schuette v. CDA At issue: the constitutionality of Art. I 26 of MI Constitution, enacted by state voters via referendum in 2006. 26 bars any consideration of race across state government. Issue here was its application to higher education admissions decisions. Background against which 26 was enacted includes two important U.S. S.Ct. cases from 2003 Gratz & Grutter, both involving U. of MI. 1

U.S. S.Ct., w/ J. Kagan recused, decided 6-2 in favor of 26 s constitutionality. No majority opinion. J. Kennedy wrote for plurality of himself, C.J. Roberts, J. Alito. PLURALITY OPINION CONSISTED OF TWO MAIN STEPS: (1) 26 does not violate Equal Protection Clause of 14 th Amendment. (a) There is no clear discrimination in intent or effect. (b) Distinguished prior political process cases as involving intentional discrimination by states (or something perilously close to the same). (2) Given absence of EP violation, important to let such questions play themselves out in the political process, w/o S.Ct. intervening. Lots of Kennedy-esque rhetorical flourishes here with respect both to federalism & to individual participation in the political process: e.g., our federal structure permits innovation and experimentation and enables greater citizen involvement in democratic processes ; Our constitutional system embraces... the right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times and the course of a nation that must strive always to make freedom ever greater and more secure. 2

J. Scalia wrote separately for himself & J. Thomas, joining the judgment but concurring in separate opinion: Deems question posed unbelievably simple, and the fact that it is posed thus frighteningly bizarre : Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires? This quote encapsulates their position, and also hearkens back to many past debates (mostly in cases asking whether particular AA policies themselves were constitutional). J. Breyer also concurred separately, says political process problem not at issue here b/c elected regents boards had delegated AA questions to unelected administrators. J. Sotomayor dissents for herself & J. Ginsburg. Reasserts the political process rationale of prior cases, explains that it applies here in full force. In embracing political process rationale reasoning, the dissent largely engages the federalism / political participation rationale of the plurality on its own terms. 3

McCullen v. Coakley At issue: MA statute making it crime to knowingly stand on a public way or sidewalk within 35 ft. of entrance or driveway to any place, other than a hospital, where abortions are performed (exemptions for persons entering & exiting facility, sidewalk passer-bys, facility employees, etc.) All Justices agreed with judgment striking down statute as unconstitutional under 1 st Amendment. C.J. Roberts wrote for majority, joined by Ginsburg, Breyer, Sotomayor, Kagan. Majority opinion: The law is a time, place, manner restriction. Therefore subject only to intermediate scrutiny Ct. asks: is law narrowly tailored to a significant gov t interest? Are there ample alternative channels available for speakers? Ct. agrees that the state interests are significant: public safety, patient access to healthcare, and the unobstructed use of public sidewalks and roadways But Ct. concludes that the law burdens substantially more speech than needed to further its interests, emphasizes existence of many less restrictive alternatives & the special importance of one-on-one speech for protestors, the absence of adequate alternatives 4

Concurrence by J. Scalia*, joined by Kennedy & Thomas Law is content-based, thus should be examined under strict scrutiny, which it fails (strict scrutiny asks: is law least restrictive means to achieve a compelling gov t interest) Law content-based given facial restriction to abortion-provider locations, purpose discernible from the law & its history, and statutory exemption for facility employees or agents. Opinion excoriates majority for what it deems the majority s sui generis approach to abortion, and for its Something for Everyone opinion *this is one of J. Scalia s three furious concurrences of the term according to NYT s Adam Liptak, this is a new genre of opinion pioneered this term by Scalia! (see also concept of fauxnanimity described in a later slide) J. Alito concurs to similar effect, deeming law viewpoint-based McCutcheon v. FEC S.Ct., 5-4 (no majority opinion), struck down the aggregate contribution limits of the Bipartisan Campaign Reform Act (BCRA), popularly known as McCain-Feingold. The most recent aggregate limits allowed an individual to contribute total of $48,600 to fed. candidates and $74,600 to other political committees. These aggregate limits were layered on top of the act s base limits for individual donations to candidates and committees. 5

Plurality by C.J. Roberts, joined by Scalia, Kennedy & Alito. Recounts dichotomy created in 1974 s Buckley v. Valeo expenditure limits get strict scrutiny, contribution limits get slightly easier scrutiny. Unnecessary to revisit here, aggregate limits fail under either level. Linchpin of analysis is minimalist conception of legit. state interests. Ct. has, since Citizens Utd. (2010) made clear that the only legit. interest is a very specific kind of anti-corruption interest one in avoiding quid pro quo corruption or the appearance thereof That interest not served here. First, plurality does not buy the argument that aggregate limits are needed to avoid circumvention of base limits. Stresses the govt s tough burden of proof to make this case. Furthermore, plurality says that avoiding the influence or access that $ can buy is NOT relevant to the anti-corruption interest, given the narrowness of the interest. Plurality waxes philosophical on this point, e.g.: We have said that government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford. Ingratiation and access... are not corruption. They embody a central feature of democracy that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns. 6

J. Thomas, concurring would revisit and reject the Buckley dichotomy between contributions & expenditures. Would apply strict scrutiny & strike down the limits on that basis. J. Breyer, joined by Ginsburg, Sotomayor & Kagan dissent Most fundamentally they dispute the plurality s narrow conception of corruption, which they argue should encompass monetarily-gained access & influence. This broader conception of corruption is rooted in the Constitution and in the First Amendment itself. Dissent also argues that Citzns Utd. narrow anti-corruption interest is not applicable here that case concerned expenditures, not contributions. Dissent also deems the applicable scrutiny level misapplied by the plurality. Finally and related to the question of scrutiny application, the dissent says that the plurality should at minimum have remanded for a fuller evidentiary hearing. 7

Lane v. Franks Justice Sotomayor writes for a unanimous court! (This case involves true unanimity, meaning a 9-0 majority opinion / rationale, not the fauxnanimity* of a unanimous judgment w/ splintered rationales) J. Thomas does write a separate concurrence for himself, Scalia & Alito, but they also join the majority opinion. They concur just to emphasize the opinion s relative narrowness. *so far as I can tell, fauxnanimity was coined this term by journalist Dalia Lithwick (slate.com) Factual background: Lane was hired in 2006 as the Director of Community Intensive Training for Youth (CITY) at Central Alabama Community College. CITY was having severe financial problems and so Lane conducted a full audit. Lane discovered that Suzanne Schmitz, an Alabama state rep. on CITY s payroll, had not been reporting to her CITY office. Lane fired Schmitz who vowed to get him back. Schmitz termination and the alleged corruption underlying it drew FBI attention. Lane testified before grand jury. Schmitz then indicted on several counts. Under subpoena, Lane testified at Schmitz trial in 2008. He testified again in 2009 at her retrial. 8

Schmitz convicted upon retrial. In 2009, Lane was terminated by Steve Franks, then CACC pres. In January 2011, Lane sued Franks in his individual & official capacities. He sought damages and reinstatement. Lane claimed that he was terminated for his testimony in violation of his 1 st Amendment right to free speech. The trial & appellate courts found that, even if Lane was retaliated against for his testimony, he had no legit. 1 st Amendment claim. To understand the lower courts reasoning, here are the relevant points of judicial precedent: Relevant judicial precedent: Gov t employees do not waive their first amendment rights by virtue of their gov t. employment. Gov t. thus not fully unfettered in its ability to terminate or discipline them for their speech. At same time, gov t has greater power over their employees speech in its role as employer than it has over citizen speech generally. 3-fold test (from Pickering line of cases plus 2006 s Garcetti) Was the speech part of speaker s official employment duties? If yes, NO PROTECTION. IF NOT Is the speech on a matter of public concern? If not, NO PROTECTION. If yes Does the employer s interest in suppression outweigh that of the speaker & the public in the speech? 9

Question in Lane pertained to first part of the test. Lower courts had deemed the speech part of Lane s employment duties and thus fully unprotected. Rationale was that he was speaking of matters that he learned of through his employment In J. Sotomayor opinion for unanimous Court, Ct. explained that speech is not automatically within employment duties b/c it is about employee s job or contains info. learned at work. This is a very important conclusion forecloses a path that would have dramatically limited employee 1 st Am. rights. Indeed, Court affirms special value of employee speech about their employment: Such speech holds special value precisely because [gov t] employees gain knowledge of matters of public concern through their employment. 10

Still, Court cautiously declines to opine on hypothetical facts not presented in this case: We... need not address in this case whether truthful sworn testimony would constitute citizen speech under Garcetti when given as part of an employee s ordinary job duties. (Concurring opinion largely just reiterates this same point concurrence by J. Thomas for himself, Scalia, Alito) Moving on to other parts of the relevant test, Ct. finds it easy to conclude that the speech is on a matter of public concern and outweighs any employer interest in suppressing it. Harris v. Quinn This case broke down along pretty familiar conservative / liberal lines. J. Alito wrote the majority opinion, joined by C.J. Roberts, Scalia, Kennedy & Thomas. Dissent penned by J. Kagan, joined by Ginsburg, Breyer & Sotomayor. At issue was an aspect of Illinois Rehabilitation Program (RP). RP uses federal Medicaid funds to pay home health care workers (personal assistants, or PAs) to assist people in their homes who, without such care, would require institutionalization. Illinois could have chosen to centralize RP as a fully state-run program with PAs as state employees. Instead, it made PAs joint private-state employees. 11

PAs are hired, fired by the persons needing care ( customers ), also sign agreements with customers and work out much of the job s day-to-day details with them. State also maintains a regulatory role, among other things sets and pays wages & benefits, including health insurance, for PAs. In setting such terms, the state negotiates with the union (a branch of the Service Employees International Union) designated as the PAs exclusive representative. Under the IL Public Labor Relations Act (PLRA), all PAs must pay a fair share fee to the union even if they do not wish to join. Three IL PAs including one who provides care at home for her own daughter argue that the PLRA violates the 1 st Am. insofar as it requires PAs who do not wish to support the Union to do so through dues. Some key judicial precedent: In 1977 case of Abood v. Detroit Bd. of Ed., S.Ct. held that public workers could be required to pay dues to their exclusive union rep. They agreed that the state had important interests in facilitating exclusive union representation and avoiding free-riding by non-paying employees who benefit from negotiated wages, terms. Abood did acknowledge legit. 1 st Am. concerns of dissenting employees insofar as unions also engaged in political activity, campaign contributions, lobbying, etc., beyond their core role in bargaining, holding grievance proceedings, etc. Abood thus allowed union dues to be required, so long as employees could opt out of payments for unions extraneous expressive activity (i.e., political, ideological activities). 12

In his opinion for the majority, J. Alito: Spends considerable time suggesting that Abood was poorly reasoned. Perhaps most fundamentally, he argues that Abood overlooked the intrinsically political nature of so much public sector business, including union bargaining, grievance procedures, etc. Nonetheless, Ct. concludes that it needn t revisit Abood s status now. It need only decline to extend Abood to cover IL PAs. Ct. distinguishes PAs from full-fledged public employees. Role of private customers in employing PAs makes the union s bargaining role less central than in full public employment contexts. This lessens any state interests in requiring payments to the union. Given state s less compelling position in this case than in cases involving full-fledged public employment, Ct. declines to extend the extraordinary power that Abood accords unions to IL PAs. Nor, says Ct., do broader first amendment considerations, beyond Abood, support IL s position. The forced fee amounts to compelled speech, which at minimum demands that the state have a compelling interest that can t be met through means significantly less restrictive of 1 st Am. freedoms. There are far less restrictive options. Indeed, it s not clear why a forced fee is necessary. There s evidence of substantial support for the union in IL, hence voluntary support probably would suffice. 13

In a dissent joined by Ginsburg, Breyer & Sotomayor, J. Kagan writes: Majority s distinction of this case from Abood is unsound. Union here still performs fundamental union role of bargaining employment terms and conditions. This is unaffected by the existence of some role for the private customer. In fact, majority opinion creates perverse incentives for states to take over such Medicaid-funded programs entirely (rather than creating public/private partnerships). Majority also defends Abood and emphasizes that it remains solid precedent after Quinn: Today s majority cannot resist taking potshots at Abood, but it ignores the petitioners invitation to depart from principles of stare decisis. And the essential work in the majority s opinion comes from its extended (though mistaken) distinction of Abood, not from its gratuitous dicta critiquing Abood s foundations. That is to the good or at least better than it might be. The Abood rule is deeply entrenched, and is the foundation for not tens or hundreds, but thousands of contracts between unions and governments across the Nation. Our precedent about precedent, fairly understood and applied, makes it impossible for this Court to reverse that decision. 14

Finally, a few words on NLRB v. Noel Canning (to provide a taste of an opinion that is interesting, but not directly relevant for our purposes) When can a recess appointment be made under Article II (thus enabling the Pres. to make the appointment w/o Senate consent)? Relevant constitutional language: The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. In a fauxnanimous decision (9-0 on judgment, 5 on majority opinion, 4 furiously concur) Ct. struck down Obama recess appointments to NLRB. Majority opinion (penned by J. Breyer) reasoned on largely functional grounds (said the text is ambiguous, must look to underlying purposes as informed by historical experience). Said that intra-session recess at issue was only 3 days in light of pro forma sessions. That s too short to create a recess. Furious concurrence (penned by J. Scalia) says that the questions are formal in nature, in light of original understanding of the constitutional text. Is Senate between sessions? If not, there is no recess. Even if there is a recess at the time of appointment, did the vacancy occur during the recess? If not, there can be no recess appointment. 15