Supreme Court Update Lisa Soronen State and Local Legal Center lsoronen@sso.org
Two Redistricting Cases Argued this week before the Supreme Court Involving very similar facts
How Did We Get Here? Tension: how much consideration of race is too much? Voting Rights Act=no vote dilution or retrogression Equal Protection=considerations of race must not predominate Back in the day Democrats controlled legislatures and were accused of not doing enough to create opportunities for minorities to elect candidates of choice More recently Republicans control legislatures and are accused of doing too much (in particular districts only) to help minorities elect candidates of choice
What s At Issue Now? Same general allegation African-American voters have been packed into districts already containing high number of African-Americans under the guise of complying with the Voting Rights Act to in fact dilute their influence in other districts Big legal question Does race predominate? If it does strict ( fatal ) scrutiny applies
Take One Court has recently addressed minority packing Alabama Legislative Black Caucus v. Alabama (2014) Section 5 made us do it (pack African-American voters in majority-minority districts) Section 5 does not require maintaining the same population percentages in majorityminority districts as in the prior plan. Rather, 5 is satisfied if minority voters retain the ability to elect their preferred candidates.
Who Won Below Matters With an 8 Justice Court In a 4-4 decision the lower court ruling stands Virginia legislature won below North Carolina legislature lost below Can t predict outcome based on who won below
Bethune-Hill v. Virginia State Board of Elections Beauty contest case Virginia House of Delegates (and DOJ) approved a plan where 55% of voters in 12 majority-minority districts would be African-American Dispute is over the technical legal standard the district court applied to determine whether race predominated
Bethune-Hill v. Virginia State Board of Elections District court said race was predominant in only one district because (basically) it looked funny Challengers objected to the district court s standard that for race to predominate they must show an actual conflict between traditional redistricting and race Practical effect: if a district looks compact that there will be no predominance inquiry
Bethune-Hill v. Virginia State Board of Elections Oral argument Liberals sympathetic of challenger s position Challengers need Kennedy s vote Justice Kennedy explicitly stated he had a problem with no finding of predominance if districts look conventional
Bethune-Hill v. Virginia State Board of Elections JUSTICE KENNEDY: Suppose you have two district -- or two possible districts. Each of them look conventional. Each of them are conventional in the same sense that you've been describing these multiple factors. But the stated reason, the stipulated reason for choosing District A over District B is because it has more voters of a certain race, black, Latino, white, whatever. Is that a predominant motive based on race? MR. CLEMENT: I would say that the right answer to that in -- when -- for predominance within the meaning of your Court's cases is no. And I think there are two reasons JUSTICE KENNEDY: That -- and that's what the district court says, and I have -- I have problems with that, because predominance is designed to measure intent when there are multiple causes, and in my -- in my hypothetical, the hypothetical is, the -- the -- the tipping point, the principal motivating factor was race. And you say that because -- and the district court I think said because the districts are conventional in all other respects, strict scrutiny doesn't apply. I have a problem with that. MR. CLEMENT: Okay. Justice Kennedy, I -- I thought you might, but I'd like to say three things to try to convince you in defense of the district court.
Bethune-Hill v. Virginia State Board of Elections Oral argument what to do, what to do 12 districts at issue in this case Ginsburg: vacate the decision below and send the case back to the lower court, with an instruction that race can be a predominant factor even if there is no conflict with traditional redistricting principles Strike some districts? Roberts: will that actually work? Breyer: does wrong predominance analysis matter?
McCrory v. Harris Repeat offender case NC-1, NC-12 Subject of 4 previous Supreme Court cases BVAP set over 50% Neither had BVAP of over 50 percent for many years previously; black voters had no trouble electing a candidate of their choice Dispute is over the facts whether race was a factor a all in drawing NC-12
McCrory v. Harris State argued NC-12 wasn t drawn on the basis of race Much of the oral argument focused on whether this was true or not Clear error where the district court called this district a textbook example of racial gerrymandering When race and politics are so closely correlated challengers must show another way that the legislature could have accomplished its political goals without a comparable emphasis on race Challengers would have to put together maps showing how the district should have been drawn not relying so heavily on race?
McCrory v. Harris What about the fact a state court upheld the state s plan? Justice Ginsburg brings this up Conservative Justices (and Kennedy) seemed disinclined to ignore state court ruling
Predictions Before argument experts said North Carolina legislatures loses Virginia legislature wins After argument I predict both state legislatures lose is some way Less clear whether Justices will strike down plans entirely or ask lower courts to redecide the cases based on newly articulated standards
General Thoughts Unusual arguments Two cases, same day, some general issues, same advocates Most passionate defense of a case I have ever seen Level of engagement of Justices was as high as I had ever seen it Few questions by a sick Justice Sotomayor
General Thoughts States advocate wanted the Court to understand the challenges states face in the these cases and to remind the Court of state sovereignty Politics are motivating these cases how do the Justices perceive the significance of that? Justice Breyer felt like these cases should have gone away after Alabama Legislative Black Caucus Was I not clear enough? Have a picked the wrong test? Court frustrated by being involved in these lengthy, complexity of cases and frustrated by lower court unwillingness/inability to do what they want
Million Dollar Question Will the Court (while Justice Kennedy is still on it) have the appetite to take on the constitutionality of partisan gerrymandering Will have their chance in Whitford v. Gill Bold, innovative, thoughtful impossible? Read: racial gerrymandering cases are hard enough!?
President-Elect Trump and the Supreme Court President Trump will pick Justice Scalia s replacement First known test of his conservative credentials Will he stick to his list of 21 reliable, known conservatives? If he does, confirmation shouldn t be a problem Replacing Justice Scalia with a new conservative Justice won t tilt the Court much future Trump nominations will Two names on the list come up over and over again: William Pryor and Diane Sykes
President-Elect Trump and the Supreme Court Biggest initial change might be cases brought if the United States loses the Clean Power Plant case before the DC Circuit I assume the United States now won t appeal Likely clashes If Congress does not assist President Trump with his agenda, like President Obama, President Trump may rely on executive power Will the conservatives on the Court be as skeptical of his use of executive power as they were of President Obama s? First Amendment? Liberals hopes of having a majority liberal court for the first time in almost 50 years have been dashed Liberals are most worried about: abortion, affirmative action, and rights of minorities and workers
Overall Observations about the Term Court is very conscious about having only eight Justices Court has accepted really only one high interest case Court is off-pace in grants by about 10 cases High number of recent grants of First Amendment cases probably isn t a coincidence Acting in an error-correcting role? Has yet to schedule at least two cases accepted when Justice Scalia was alive
Gloucester County School Board v. G.G. G.G. is biologically female but identifies as a male Gloucester County School Board prevented him from using the boy s bathroom He sued the district arguing discrimination in violation of Title IX
Gloucester County School Board v. G.G. Title IX prohibits school districts that receive federal funds from discriminating on the basis of sex A Title IX regulation states if school districts maintain separate bathrooms on the basis of sex they must provide comparable facilities for the other sex In a 2015 letter the Department of Education (DOE) interpreted the Title IX regulation to mean that if schools provide for separate boys and girls bathrooms, transgender students must be allowed to use the bathroom consistent with their gender identity
Gloucester County School Board v. G.G. Two legal questions Should courts defer to DOE s letter interpreting the regulation? Putting the letter aside, should the Title IX regulation be interpreted as DOE suggests?
Gloucester County School Board v. G.G. The Fourth Circuit ruled in favor of G.G. giving Auer deference to DOE s letter Per Auer v. Robbins (1997) a court generally must defer to an agency s interpretation of its ambiguous regulations The Title IX regulation is ambiguous because it is susceptible to more than one plausible reading because it permits both the Board s reading determining maleness or femaleness with reference exclusively to genitalia and the Department s interpretation determining maleness or femaleness with reference to gender identity.
Gloucester County School Board v. G.G. Court refused to accept the question of whether Auer deference should be overturned But if the Court refuses to apply it to this case isn t it (implicitly) overturning it? Three Justices (including Auer s author Justice Scalia) indicated they might be willing to overrule Auer Five Justices voted to stay the Fourth Circuit s ruling (including Justice Breyer as a courtesy ) In a 4-4 decision G.G wins
Gloucester County School Board v. G.G. Lurking in the background Twenty-one states suing DOE over the letter in two lawsuits DOJ suing NC over its transgender bathroom law President-elect could pull this letter on day 1 in office
Trinity Lutheran Church v. Pauley Accepted before Justice Scalia died; not scheduled for oral argument Issue: whether Missouri can refuse to allow a religious preschool to receive a state grant to resurface its playground based on Missouri s super- Establishment Clause Less technically: whether religious organizations be excluded from generally available public benefit programs based on state law
Trinity Lutheran Church v. Pauley The Missouri Department of Natural Resources offers grants to qualifying organizations to purchase recycled tires to resurface playgrounds The DNR refused to give a grant to Trinity Church s preschool because Missouri s constitution prohibits providing state aid directly or indirectly to churches The majority of the state constitutions contain Blaine Amendments or super- Establishment Clauses whose prohibitions against aid to churches and religious schools exceed the requirements of the federal Establishment Clause Trinity Church argues that excluding it from an otherwise neutral and secular aid program violates the federal constitution s Free Exercise and Equal Protection Clauses, which Missouri s Blaine Amendment may not trump
Trinity Lutheran Church v. Pauley In Locke v. Davey (2004) the Supreme Court upheld Washington State legislature s decision to prohibit post-secondary students from using public scholarships to receive a degree in theology, based on its super-establishment Clause The Supreme Court must decide whether to apply Locke v. Davey narrowly or broadly in this case Justice Scalia foresaw this dilemma in his dissent in Locke noting that its holding is limited to training the clergy, but its logic is readily extendible, and there are plenty of directions to go
Trinity Lutheran Church v. Pauley Trinity Church argues the Court should read Locke narrowly and that [t]his case is as far from Locke as one can conceive. Trinity Lutheran sought to participate in a generally available public benefit program that provides recycled rubber flooring to protect children from cuts and bruises on the playground. Locke rejected a free exercise challenge to compel a state to fund the religious training of clergy.
Trinity Lutheran Church v. Pauley No state brief defends their Blaine Amendment At least half the states with Blaine Amendments have joined an amicus brief supporting Trinity Lutheran Church No legislation at issue in this case but Your state may have passed legislation you believed was okay because of the state s Blaine Amendment
Endrew F. v. Douglas County School District Per the Individuals with Disabilities Education Act (IDEA), a student with a disability receives an individualized education program (IEP), which is intended to provide that student with a free and appropriate public education (FAPE) Parents and educators determine the content of each IEP Per Board of Education v. Rowley (1982) to provide a FAPE, an IEP must be reasonably calculated to enable the child to receive educational benefits
Endrew F. v. Douglas County School District Issue: what level of educational benefit must school districts offer students with disabilities to provide them with a FAPE? Some or meaningful? Rowley uses both language
Endrew F. v. Douglas County School District Impact of meaningful Most special education students receive a meaningful education If districts can t provide a FAPE they must pay for a private placement Areas of greatest challenges: Where a student has significant and/or multiple disabilities Where parents and the school district disagree whether an IEP is adequate Small rural districts Dollars to education are finite
Pena-Rodriguez v. Colorado Could upset about 30 states rules of evidence
Pena-Rodriguez v. Colorado Juror made a number of racist statements during deliberations No-impeachment rules prevents jurors from testifying after a verdict about what happened during deliberations (with limited exceptions that do not include that a juror expressed racial bias) Does Colorado s no-impeachment rule violates the Sixth Amendment right to be tried by an impartial jury?
Pena-Rodriguez v. Colorado In two previous cases the Supreme Court ruled that the federal no-impeachment rule wasn t unconstitutional Admission of evidence that the jury was one big party where numerous jurors used drugs and alcohol (Tanner v. United States, 1987) Juror in a car-crash case said in deliberations that her daughter caused a car accident and had she been sued it would have ruined her life (Warger v. Shauers, 2014) According to the Colorado Supreme Court these two cases stand for a simple but crucial principle: Protecting the secrecy of the jury deliberations is of paramount importance in our justice system
Pena-Rodriguez v. Colorado Tension at oral argument How far will an exception for race go (sex, religion, etc.)? A bunch of states already make an exception for race and the sky hasn t fallen
Packingham v. North Carolina Issue: whether a North Carolina law prohibiting registered sex offenders from accessing commercial social networking websites where the registered sex offender knows minors can create or maintain a profile, violates the First Amendment? Lester Packingham thanked God for the dismissal of a ticket on Facebook
Packingham v. North Carolina Regulation of speech or conduct? NC Supreme Court concludes conduct: specifically the ability of registered sex offenders to access certain carefully-defined Web sites. Why does this matter? Restrictions on speech are harder to defend Lower court concludes statute was narrowly tailored to prohibit registered sex offenders from accessing websites where they could gather information about minors
Packingham v. North Carolina Bad signs for this case SCOTUS accepted three First Amendment free speech cases this fall Two other similar laws have been struck down (Indiana, Louisiana) Content-neutral under Reed v. Town of Gilbert, Arizona
Moore v. Texas Can Texas execute someone based on a 1992 definition of intellectually disabled (and blame it on the legislature!)? In Atkins v. Virginia (2002) the Supreme Court held that executing the intellectually disabled violates the Eighth Amendment s prohibition against cruel and unusual punishment The Court tasked states with implementing Atkins
Moore v. Texas The Texas Court of Criminal Appeals, relying on a 2004 case that adopted the definition of intellectual disability stated in the ninth edition of the American Association on Mental Retardation manual published in 1992, concluded that Moore wasn t intellectually disabled According to the court it was up to the Texas Legislature to implement Atkins Until it did so, the court would continue to apply this 1992 definition
Moore v. Texas Court acting in an error correcting capacity? Amy Howe of SCOTUSblog predicts Texas will lose Moore also asked the Court to decide whether execution after an excessively long period of confinement under a death sentence constitutes cruel and unusual punishment The Supreme Court accidentally accepted this issue
Coventry Health Care of Missouri v. Nevil Imagine yourself the head of a federal agency Imagine you think the scope of a preemption clause is too narrow What would you do? Write a regulation that broadens the scope of the preemption clause
Coventry Health Care of Missouri v. Nevil Issue: whether Chevron deference applies to an agency s regulation construing the scope of a statute s express-preemption provision Missouri Supreme Court refused to apply Chevron reasoning no binding precedent requiring courts to afford dispositive deference to an agency rule defining the scope of an express preemption clause What expertise do agencies have regarding preemption clauses?