Supreme Court Update Lisa Soronen State and Local Legal Center lsoronen@sso.org
How does it affect the states? Conservatives good Local control Qualified immunity Employment Religion in public spaces Conservatives bad Land use Tax Free speech Death of Justice Scalia
Death of Justice Scalia His idiosyncrasies Originalism and textualism are a mixed bag Varied on the Fourth Amendment Liked guns Conservative on social issues Hated the EPA
Who is Merrick Garland? He is seen as: Moderate, uncontroversial (left of Kennedy; right of Breyer) Anti-gun Pro-prosecution Pro-labor Pro-agency deference (i.e. environmental regulation) Limited record on social issues (death penalty, abortion)
Confirmation: Where are we? Nowhere Senate Republicans have refused to give Garland a hearing Filled out the questionnaire on his own initiative in May Last count 14 Republican Senators have met with him
What is Likely Next? Trump presidency No Garland Clinton presidency Will she ask Obama to pull the Garland nomination? Might depend on whether the Senate becomes a Democrat majority
Trump List of Potential Nominees Totally unorthodox Done to illustrate his conservative credentials 11 people; 5 state supreme courts; rest are federal courts of appeals All judges; no Paul Clement All white; 8 are men All conservatives; no consensus candidates Most interesting: Don Willett s tweet Most controversial: William Pryor
Public s View of the Vacancy Do people care there are no hearings/garland isn t being confirmed? Public Policy Polling found 65% of those surveyed favor hearings for Garland Pew poll found 58% of Republican respondents wouldn t confirm Garland Public Policy Polling found 57% of Republicans surveyed would trust Trump to select the Justice Scalia s replacement
Impact of the Vacancy on the Court Less than you might think Less than 20% of cases are usually 5-4 About 40% of cases are unanimous
Impact of the Vacancy on the Court More than you might think Controversial *big* cases are much more likely to be 5-4 This term had six *big* case (2-3 is more common) Union case 4-4would have gone the other way had Scalia lived Texas immigration case 4-4 Birth control mandate case Court worked out compromise? Court has decided to hear fewer cases since Justice Scalia died
Don t Forget the Big Picture Ginsburg 83 Kennedy 79 (same age as Justice Scalia) Breyer 77
High Water Mark for a Conservative SCOTUS? What year did the Supreme Court last contain a majority of members appointed by a Democratic president? Thomas retirement rumors What would a 7-2 Court look like? SG talks about the future of the death penalty
What To Talk About? Big cases Lots of them; you might already know all about them? Likely to affect state legislation Not as many as usual? Death penalty Lots; mostly state specific A few just came up in the death penalty context Redistricting None were as big as they could have been
Evenwel v. Abbott Biggest case for state legislatures Could have been much bigger States may apportion state legislative districts based on total population
Evenwel v. Abbott In Reynold v. Sims (1964) the Court established the principle of one-person, onevote requiring state legislative districts to be apportioned equally so that votes would have equal weight What population is relevant? Total population or voter-eligible population Total population includes numerous people who cannot vote notably non-citizens and children The maximum total-population deviation between districts was about 8 percent (up to 10 percent is presumed constitutional); the maximum eligible-voters deviation between districts exceeded 40 percent
Evenwel v. Abbott Most people considered the law in this area settled Over the span of decades the Court had denied cert on this repeatedly
Evenwel v. Abbott Rationale focused on constitutional history, this Court s decisions, and longstanding practice Section 2 of the 14 th Amendment explicitly requires that the U.S House of Representatives be apportioned based on total population In no previous cases alleging a state or local government failed to comply with oneperson, one-vote had the Court determined if a deviation was permissible based on eligible- or registered-voter data States and local governments redistricting based on total population is a settled practice
Evenwel v. Abbott Unanimous Written by Justice Ginsburg Tribute to Justice Scalia? Formalistic opinion but did pragmatism carry the day? Court did not decide whether states may redistrict using voter-eligible population
Friedrichs v. California Teacher Association 4-4 (Was) one of the biggest cases of the term generally and for state and local government Outcome was practically inevitable Justice Scalia s death changed everything
Friedrichs v. California Teacher Association About half the states are right to work If employees don t want to join the union they don t have to and don t have to pay a dime In agency fee / fair share states if employee don t join the union they still have to pay their fair share of collective bargaining costs Friedrichs could have made all states right to work for public sector employees
Friedrichs v. California Teacher Association Constitutionality of fair share established in 1977 in Abood v. Detroit Board of Education No free riders are allowed! Recently, Justice Kennedy and Scalia joined two 5-4 decisions critical of Abood Before Justice Scalia died it seemed very likely that the Court would have overturned Abood Court issued a 4-4 opinion affirming the lower court s refusal to overrule Abood
Friedrichs v. California Teacher Association Public sectors unions can (and do) exist without fair share Symbolic and practical importance of fair share Cornerstone of public sector collective bargaining Guarantees significant funding Could have been the Citizens United of collective bargaining
Whole Women s Health v. Hellerstedt Texas s admitting privileges and ambulatory surgical center requirements create an unconstitutional undue burden on women seeking abortions 5-3 ruling Breyer writes Kennedy is in the majority Justice Scalia s vote would not have mattered
Whole Women s Health v. Hellerstedt Admitting privileged--what s the problem? No patients Religious grounds Ambulatory surgical center (ASC)--what s the problem? Money
Whole Women s Health v. Hellerstedt Texas argue these two requirements would protect the health of women who experience complications from abortions Court in Planned Parenthood v. Casey said great but [u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right
Whole Women s Health v. Hellerstedt Fifth Circuit in trouble Before analyzing the benefits and burdens of these laws Justice Breyer, writing for the majority, criticized the Fifth Circuit, which ruled in favor of Texas, for: Implying that the existence or nonexistence of medical benefits need not be considered in the undue burden analysis Applying less strict review than required Saying that it is the role of state legislatures and not the courts to resolve medical uncertainty
Whole Women s Health v. Hellerstedt Admitting privileges No benefits: very few women who receive abortions need to be hospitalized Substantial burden: about half of Texas s clinics closed as a result These closures meant the number of women of reproductive age living in a county... more than 150 miles from a provider increased from approximately 86,000 to 400,000... and the number of women living in a county more than 200 miles from a provider from approximately 10,000 to 290,000
Whole Women s Health v. Hellerstedt ACS: No benefits: For those who have abortions via medication complications almost always arise only after the patient has left the facility Texas does not require that much riskier procedures like child birth and colonoscopies be performed in an ASC Substantial burden: further reduced the number of abortion clinics (initially about 40) to seven or eight Common sense suggests the remaining clinics will not be able to keep up with demand.
Whole Women s Health v. Hellerstedt All ACS and admitting privileges requirements are in trouble Alabama agrees but tell that to Louisiana Cert denied in WI admitting privileges law Any requirement that closes a lot (how many?) of clinics is in trouble Courts will (should) dismiss sham justifications; will different rationales emerge? Even if there a state interest is furthered by regulation the interest must be weighed against the burden What about the other new abortion laws (300 in the last 5 years)? Particularly those that won t close as many clinics as admitting privileges and ACS requirements?
United States v. Texas 4-4 Does the President s deferred action immigration program violates federal law? Fifth Circuit said yes; granted Texas a preliminary injunction As a result, the Fifth Circuit s nationwide temporary stay of the program remains in effect
United States v. Texas The Deferred Action for Parents of Americans (DAPA) program allows certain undocumented immigrants who have lived in the United States for five years and either came here as children or already have children who are U.S. citizens or permanent residents to lawfully stay and work temporarily in the United States About 5 million people are affected Twenty-six states sued the United States
United States v. Texas Biggest issue for states: standing The United States argued that the states lack standing to challenge DAPA The Fifth Circuit disagreed, reasoning that the cost of issuing drivers licenses to DAPA program participants is a particular harm states face At least 4 Justices voted Texas had standing
United States v. Texas APA issues Notice-and-comment Arbitrary and capricious Constitutional issue Take Care Clause which states that the President shall take Care that the Laws be faithfully executed
United States v. Texas What s next? Trial to determine permanent injunction Rehearing when ninth Justice joins the Court? Challenges in other jurisdictions saying they were harmed by the ruling
Fisher v. University of Texas at Austin 4-3 win for affirmative action (Justice Kagan didn t participate) Ironically this probably would have been a 4-4 case had Justice Scalia lived What did the Court say? What is the significance of the case?
Fisher v. University of Texas at Austin Per Texas s Top Ten Percent Plan, the top ten percent of Texas high school graduates are automatically admitted to UT Austin, filling up to 75 percent of the class Other students are admitted based on a combination of their grades and test scores and personal achievement index Race is considered as one factor in one of the two components of an applicant s personal achievement index
Fisher v. University of Texas at Austin Strict scrutiny applies to the use of race in college admissions Diversity is a compelling interest in the education context In Fisher I the Court held that the Fifth Circuit, which upheld UT Austin s admissions policy, should not have deferred to UT Austin s argument that its use of race is narrowly tailored Fisher essentially argued that the Top Ten Percent Plan created enough diversity
Fisher v. University of Texas at Austin Justice Kennedy rejects Fisher s four arguments that UT Austin s admissions policy isn t narrowly tailored Critical mass isn t a number Critical mass wasn t achieved when race wasn t a factor (between 1996 and 2002, when race wasn t a factor in admissions, minority enrollment stagnated) Race had more than a minimal impact on minority enrollment (between 2003 and 2007, when race was considered, Hispanic and African-American enrollment increased 54 percent and 94 percent respectively) UT Austin tried numerous race-neutral means of achieving more diversity and they failed
Fisher v. University of Texas at Austin Big/symbolic significance of the case First win for affirmative action in education since Grutter v. Bollinger (2003) Remember the 25 year predication? Written by Justice Kennedy Did not join the majority in Grutter Embraces Grutter enthusiastically Apology, and lecture, and a warning Is this what a more liberal Supreme Court looks like? This is the John the Baptist case Harvard/UNC case is the Jesus case
Fisher v. University of Texas at Austin Smaller/practical significance of the case Does this case make it easier for universities to figure out how to devise constitutional race-conscious admissions plans? No other state has a top ten percent law Other concepts in the case are of universal concern (critical mass, race neutral means to increase diversity) Justice Kennedy envisions a world of constant analysis and data-driven decision-making
McDonnell v. United States Straddles the big case category and likely to lead to state legislation category Definition of bribery under federal law Unanimous win for McDonnell (sort of) Setting up meetings, calling other public officials, and hosting events do not alone qualify as official acts
McDonnell v. United States While in office McDonnell accepted more than $175,000 in loans, gifts, and other benefits from Jonnie Williams Williams wanted a Virginia state university to test a dietary supplement, Anatabloc, his company, Star Scientific, had developed Federal bribery statutes make it a crime for public officials to receive or accept anything of value in exchange for being influenced in the performance of any official act
McDonnell v. United States The federal government claimed McDonnell committed at least five official acts Williams argued that these acts which didn t direct[] a particular resolution of a specific governmental decision or pressure another government official to act, in and of themselves, aren t official acts An official act is defined as any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official s official capacity, or in such official s place of trust or profit
McDonnell v. United States Merely setting up a meeting, hosting an event, or calling another official does not qualify as a decision or action on any of these questions or matters: Simply expressing support for the research study at a meeting, event, or call or sending a subordinate to such a meeting, event, or call similarly does not qualify as a decision or action on the study, as long as the public official does not intend to exert pressure on another official or provide advice, knowing or intending such advice to form the basis for an official act. Otherwise, if every action somehow related to the research study were an official act, the requirement that the public official make a decision or take an action on that study, or agree to do so, would be meaningless.
McDonnell v. United States McDonnell hasn t won yet The lower court will decide whether charges against McDonnell should be dismissed based on its new definition of official acts or whether McDonnell should receive a new trial
McDonnell v. United States How might state legislatures respond? Why wasn t this case tried based on state bribery/corruption/gifts laws? Tighten up state bribery/corruption/gifts statutes? Big picture thoughts on this case Court was thinking about campaign contributions as the quid Too much prosecutorial discretion under old federal statutes
Montgomery v. Louisiana Juvenile offenders sentenced to life in prison without parole before Miller v. Alabama (2012) was decided may have their sentences reviewed Miller v. Alabama the Court held that a juvenile may not be sentenced to life in prison without parole absent consideration of the juvenile s special circumstances in light of the principles and purposes of juvenile sentencing Rather than relitigating sentences states may allow relevant juvenile offenders to be eligible for parole
Montgomery v. Louisiana Per Teague v. Lane (1989) new substantive rules of constitutional law (as opposed to procedural rules) apply retroactively Substantive rules prohibit a certain category of punishment for a class of defendants to be applied for certain offenses Some juveniles could still be sentenced to life in prison without parole but the vast majority cannot following Miller Only the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility will be sentenced to life in prison without parole So Miller s rule was substantive
Montgomery v. Louisiana 6-3 decision written by Justice Kennedy About 2,000 people currently serving life sentences without parole committed their crimes as juveniles Justices Scalia writes: And then, in Godfather fashion, the majority makes state legislatures an offer they can t refuse: Avoid all the utterly impossible nonsense we have prescribed [trying to figure out who was permanently incorrigible at the time they committed their crime] by simply permitting juvenile homicide offenders to be considered for parole. Mission accomplished.
Montgomery v. Louisiana Is Justice Scalia right? Will all state legislatures rely on the parole process or will some come up with a process to relitigate sentences outside of the parole process and come up with criteria for whose sentence gets reduced?
Birchfield v. North Dakota States may criminalize an arrestee s refusal to take a warrantless breath test If states criminalize the refusal to take a blood test police must obtain a warrant 5-3 SLLC filed an amicus brief
Birchfield v. North Dakota States began criminalizing the refusal to consent to blood alcohol concentration (BAC) testing because the penalty for refusal is low typically driver s license revocation or suspension National Highway Traffic Safety Administration research indicates about 20 percent of people arrested for drunken driving refuse to submit to a BAC test
Birchfield v. North Dakota Court applied search-incident-to-arrest exception to the warrant requirement A motorist is only required to submit to a BAC test after being arrested for drunken driving Police officers are allowed to search an arrestee s person, without first obtaining a warrant, to protect officer safety or evidence Court weighed the degree to which the search intrudes upon an individual s privacy with the need to promote legitimate government interests
Birchfield v. North Dakota The privacy intrusion of breath tests was minimal but the privacy intrusion of blood tests was not [W]hile humans exhale air from their lungs many times per minute, humans do not continually shed blood For this reason the Court concluded if states criminalize the refusal to take a blood test police must obtain a warrant Court noted that blood tests have some advantages (they can detect drugs, and not just alcohol, and they require less driver participation)
Birchfield v. North Dakota 15 states currently criminalize the refusal to consent I doubt any states require a warrant I don t think a warrant requirement has to be included in the statute for blood tests (but police must get a warrant if they want to compel a blood test)
Birchfield v. North Dakota A few Southern state currently criminalize refusal to some extent (Arkansas, Florida, Kentucky, Louisiana, and Tennessee) If more states want to do this now is the time!
Gobeille v. Liberty Mutual Insurance Company All-payers claims database (APCD) laws are preempted by Employee Retirement Income Security Act (ERISA) 6-3 decision SLLC filed an amicus brief arguing for the opposite result Justice Ginsburg cited the SLLC brief three times in her dissenting opinion! Four Southern states had APCD laws: Arkansas, Tennessee, Virginia, and West Virginia
Gobeille v. Liberty Mutual Insurance Company APCD law requires health insurers to report to the state information related to health care costs, prices, quality, and utilization, among other things. Court concluded ERISA preempts Vermont s APCD law to prevent States from imposing novel, inconsistent, and burdensome reporting requirements on plans Reporting, disclosure, and recordkeeping are central to ERISA which requires health insurance plans to submit an annual financial statement to the Department of Labor Per, Justice Ginsburg APCD laws: serve compelling interests, including identification of reforms effective to drive down health care costs, evaluation of relative utility of different treatment options, and detection of instances of discrimination in the provision of care
Gobeille v. Liberty Mutual Insurance Company Secretary of Labor could require this data collection Supreme Court doesn t get it v. Supreme Court doesn t care
Next Term Cases of Interest to States Pena-Rodriguez v. Colorado Do no-impeachment rules barring admission of the juror s racially biased statements violate the Sixth Amendment right to be tried by an impartial jury Trinity Lutheran Church of Columbia v. Pauley What happens when state Blaine Amendments are at odds with the federal constitution s Free Exercise and Equal Protection Clauses? Ivy v. Morath If a state agency contracts with a private entity is the state agency obligated to force the private entity to comply with the ADA?
Future Big Supreme Court Cases? Clean Power Plan WOTUS definitions Guns?
SLLC Supreme Court Webinars FREE Register of the SLLC website look on the events page Redistricting cases: July 12: noon Eastern time Review: July 19; 1PM Eastern time One Year After Reed: September 14; 1PM Eastern