The Faculty Lounge

Justice Scalia on Arbitrary Sports Rules

On Sunday Russia defeated Spain in the World Cup, pulling off one of the biggest upsets in soccer history. After 90 minutes of regulation play and 30 minutes of extra time, with the teams deadlocked 1-1, the game came down to a penalty kick tiebreaker. Five Russian and five Spanish players took turns trying to kick the ball past the goalies from 12 yards out. By the time the shootout ended, the Russians managed to score 4 goals, one more than the Spanish squad. When Russia’s goalie blocked Spain’s fifth and final penalty kick, all of Russia erupted in celebration.

The match’s outcome revived a long-standing debate over the fact that FIFA, the governing body of international soccer, breaks ties (or “draws,” in the parlance of international football) through penalty kick shootouts. The tiebreaker format strikes many as inconsistent with the team-oriented nature of soccer, particularly because the shootout involves an individual contest between a kicker and a goalie. Consequently, soccer purists view penalty shootouts as an arbitrary way to end a match, especially one as important as a World Cup elimination game.

But are the critics right that soccer shootouts are arbitrary? The late Justice Antonin Scalia would likely have said that the critics have missed the larger issue. He believed that all sports rules were arbitrary by their very nature, a point he made in an interesting Supreme Court case.

Rove on Supreme Court interviews

CNN is reporting that President Trump will select his nominee to the Supreme Court by July 9. Accordingly, over the course of the next 10 days, a handful of candidates will undergo the enormously stressful experience of high-stakes White House interviews.

In his autobiography, Courage and Consequence: My Life as a Conservative in the Fight, former presidential adviser Karl Rove revealed the confidential interview process that led to the 2005 nominations of John Roberts and Samuel Alito. Rove’s book provides a unique and valuable perspective into how the Bush administration approached the selection process. I suspect the Trump White House’s approach will be quite similar.

A Fascinating Interview of Justice Sotomayor

Justice Sonia Sotomayor’s blistering dissent in Trump v. Hawaii has generated a tremendous amount of attention, criticism and applause. Much has been made of the fact that she ended her opinion with “I dissent” instead of following the normal practice of closing with the words “I respectfully dissent.”

But judicial opinions only give us a limited glimpse into a justice’s personality. Three weeks ago Melissa Murray interviewed Justice Sotomayor at the American Constitution Society’s national convention. The interview is engaging, informal, and quite interesting. At one point Sotomayor walked around the room (a friendly audience filled with many former Sotomayor clerks) shaking hands and giving hugs like Oprah Winfrey or Phil Donahue, all while answering Prof. Murray’s questions. 

Throughout the interview Justice Sotomayor offered glimpses into the Supreme Court’s internal dynamics. For example, she revealed that the justices needed time to get used to Neil Gorsuch’s sense of humor, noting that “it wasn’t a humor we were accustomed to” but his jokes “fall less flat now.” She pointed out that an important 2017 Virginia Law Review article by Tonja Jacobi and Dylan Schweers has had a significant impact on how Chief Justice Roberts conducts oral argument (the article is “Justice, Interrupted: The Effect of Gender, Ideology and Seniority at Supreme Court Oral Arguments” available on SSRN here). Sotomayor also explained why she didn’t clerk for a judge after law school, a decision that she later came to regret (although I think it’s fair to say that everything worked out well in the end). 

The whole interview is available on the CSPAN website here. 

Trump’s Supreme Court List

In a bombshell announcement, Justice Anthony Kennedy revealed this afternoon that he is retiring from the United States Supreme Court. The Court’s next term begins on Monday, October 1, which means that President Trump will need to name a replacement very quickly. In a statement today, Trump said that he would choose the nominee from a list of 25 candidates previously identified by the White House. As he explained, “There are certain names that are just outstanding, names that you already know, to be honest with you. But they will come from the list of 25 people.”

According to the White House website, this is the list of 25 candidates that President Trump will consider for replacing Justice Kennedy:

Justice Kennedy’s Strange Concurrence in Trump v. Hawaii

Just as a quick follow up to Jeff Schmitt’s post below, it is worth pointing out Justice Anthony Kennedy’s very short but extremely unusual concurring opinion in Trump v. Hawaii. I don’t think I have ever seen anything quite like it. Whatever Justice Kennedy hoped to achieve with the concurrence, it seems destined to go over like a lead balloon with both supporters and critics of the Supreme Court’s ruling.  

In his two-page concurrence, Kennedy joined in full the majority opinion upholding the Trump Administration’s travel ban, but the justice then went on to use the bulk of his concurrence to chastise implicitly President Trump for his anti-Muslim statements.

How the Gill Decision Raised the Stakes of the 2018 Elections

The outcome of the Supreme Court’s two major gerrymandering cases—Gill v. Whitford and Benisek v. Lamone—could hardly have been more anticlimactic from a legal perspective, and yet the significant political impact of the Court’s decision may be felt for years to come.

Like many others, I had hoped that the justices—particularly the swing justice, Anthony Kennedy—would use the unique opportunity before the Court to articulate a judicially-manageable standard for assessing the constitutionality of redistricting plans.

But that did not happen. Instead, the Supreme Court dodged the merits of both cases, invoking Article III standing grounds to remand the Wisconsin case (Gill) and procedural grounds to remand the Maryland case (Benisek).

Although Monday’s outcome might appear innocuous, a closer look suggests that opponents of partisan redistricting suffered a serious defeat. Accordingly, with gerrymandering still on the table as a legally permissible option for the 2021 redistricting process, the state elections in 2018 and 2020 are more important than ever. They will likely determine the contours of America’s legislative and congressional districts until the 2030s.

A Few Thoughts about the Husted Case

I just got back to the United States last night from the Netherlands, where I gave a paper at a fascinating international law conference (the topic of the conference was “Contingency in the Course of International Law”) at the University of Amsterdam. I will write about the conference, which I really enjoyed, in more detail later this week.

But in the meantime I have a few observations to make about the U.S. Supreme Court’s controversial ruling in Husted v. A. Philip Randolph Institute, which the Court handed down last week while I was in Europe. In a 5-4 decision, the Court’s conservative majority upheld a key provision in Ohio’s voter registration statute, which the plaintiffs allege has resulted in the purging of thousands of eligible voters from the state’s voting rolls in violation of the National Voter Registration Act of 1993 (as amended by the Help America Vote Act of 2002).

Even from my vantage point 3,000 miles away in Europe, it was clear the Husted decision was extremely unpopular with the mainstream media, the Democratic Party, and many voting rights advocates, who immediately accused the conservative justices of aiding and abetting voter disenfranchisement. For example, in an op-ed for The Hill newspaper, Democratic Congressman Tim Ryan wrote, “With this decision, Ohio Secretary of State John Husted and states across the country were given the all clear to silence American voters.” 

Although I agree with the critics that the Ohio registration statute is not good public policy, Justice Alito’s ruling was nevertheless quite reasonable in light of the NVRA’s statutory language. For better or worse, the controlling federal law gave the Supreme Court no choice but to uphold the Ohio statute. 

A few points strike me as particularly important about the ruling.

Antonin Scalia and the Meaning of “Bear Arms”

Justice Antonin Scalia died two years ago, but his judicial legacy continues to generate discussion and debate. During his three decades on the Supreme Court, Scalia made “originalism” a household term, at least among lawyers, judges, and law professors. Nowhere was that more true than with regard to the Second Amendment, as Scalia’s originalist interpretation of the phrase “the right of the people to keep and bear arms” charted a new course in Supreme Court jurisprudence.

During a CSPAN interview in 2012, Scalia explained his originalist approach to constitutional interpretation, which “is that the text ought to be given the meaning it had when it was adopted; when it was enacted or when it was ratified in the case of the Constitution.” Historical research thus played a vital role in Scalia’s jurisprudence. As he explained in a speech at the University of Virginia, “I deny the premise that law has nothing to do with historical inquiry. Historical inquiry has nothing to do with the law only if the original meaning is irrelevant.”

But did Scalia get the original history of the Second Amendment right? 

Kennedy, Grassley, and Roe v. Wade

There is growing speculation that Justice Anthony Kennedy, a frequent swing vote on the Supreme Court, may retire next month when the Court’s current term ends. 

No one but Kennedy knows his true plans, but few would be surprised if he announces his retirement. He will soon turn 82, close to the age when most modern Supreme Court justices have retired (83 is the Court’s current average retirement age). In addition, justices tend to retire during the first two years of a like-minded president’s term, according to an empirical study by Prof. Ross Stolzenberg and Prof. James Lindgren, “Retirement and Death in Office of U.S. Supreme Court Justices.” A moderate conservative, Kennedy was appointed by a Republican president, and Republicans currently hold the White House and Senate, which would seem to make this summer a logical time for Kennedy to step down. It is also noteworthy that he joined the Court in 1988, exactly 30 years ago, the kind of round number people often like for bringing careers to a close. 

The Kennedy retirement speculation intensified in the last few days thanks to two interesting pronouncements by Senator Charles Grassley of Iowa, the chairman of the Senate Judiciary Committee.

The Ghost of Felix Frankfurter

This week the Supreme Court heard the final oral arguments of the 2017-18 term.

The attorneys who argue before the justices have never had it easy. One of the toughest questioners in history was Justice Felix Frankfurter, who served on the Court from 1939 to 1962. A former Harvard Law professor, Frankfurter used oral argument as an opportunity to treat “lawyers before the bar as students, heckling them as he had done in class,” the historian Melvin Urofsky observed in a 1988 Duke Law Journal article. On average Frankfurter spoke 1,300 words per case, a ferocious verbal outpouring that far exceeded that of any other justice in history, at least as far back as oral argument records exist.

But is oral argument an even more trying experience today? And are the justices’ questions and comments more ideologically freighted than in past eras?

False Confessions, Legal Education, and the Brendan Dassey Case

Times were, everyone knew that nobody would falsely confess.

True, the U.S. Supreme Court had acknowledged the specter of false confessions in rulings from decades past – warning that interrogation could become so psychologically overwhelming that a defendant might falsely confess just to escape his questioners. But in the daily state-court grind of trials, appeals, and harried plea negotiations, the risk of false confession – and the Supreme Court’s oft-repeated cautions – too often seemed distant and theoretical.  In contrast, the cases of defendants who confessed to serious crimes were present, all too real, and seemed to demand swift justice.  And questions about their confessions’ reliability were too often displaced by courts’ desire for the quick answers that a confession appeared, at least, to provide.

After all, everyone knew that nobody would falsely confess.

But times have changed.

Striking teachers and the First Amendment

Public Workers have been in the news again in recent days.  Celebrating the fiftieth anniversary of the assassination of Dr. Martin Luther King Jr., we recall that Dr. King was in Memphis to support striking sanitation workers. King joined the sanitation workers to protest both their economic deprivation and race discrimination by Memphis city officials.  In the present day, teachers on strike are engaging in mass demonstrations in Oklahoma, inspired by the strike of their West Virginia colleagues last month.  Oklahoma teachers are not only protesting their low salaries.  They also criticize draconian cuts in education which have led to four-day school weeks in some parts of the state, and the use of 30-year old textbooks.  These are all examples of public workers exercising their First Amendment rights, which have been fiercely contested in this country since the early twentieth century.

Looming over the teacher strikes is the case of Janus v. American Federation of State, County, and Municipal Employees, Council 31.  Janus is a First Amendment based challenged to an Illinois state law which requires public employees to pay union dues to unions that represent them.  Janus argues that paying the dues amounts to unconstitutionally compelled speech.  He is asking the Court to overrule a 40-year old precedent, Abood v. Detroit, which upheld the constitutionality of a similar state law.  Most commentators believe that the Court will rule in the plaintiff’s favor in Janus, resulting in a ruling which would strike a blow to organized labor and devastate public sector unions. Janus, the two faced Roman god of duality, is an apt name for this case.  A ruling in Janus’s favor would use the First Amendment, once the mainstay of advocates for workers’ rights, to undermine the labor rights of workers.

In her recent book, The Taming of Free Speech: America’s Civil Liberties Compromise, Laura Weinrib describes the central role that the labor movement played in the civil liberties revolution of the mid 20^thCentury.  Established in 1920, originally the ACLU's central mission was to advance a “right of agitation” and protect the labor movement’s right to free speech and free assembly.  Initially, Roger Baldwin, the first ACLU director, was hesitant to raise First Amendment claims in courts.  At the time, courts were hostile to the rights of workers, striking down progressive measures protecting workers rights as violating the so-called “right to contract” and issuing injunctions against striking workers. 

Prior to the 1930s, labor asserted its right to agitation in the political arena, not the courts. Millions of workers took to the street in massive strikes, asserting their right to organize and bargain collectively.  Labor’s distrust of courts is evident in the Norris-LaGuardia Act, which prohibit courts from issuing injunctions in cases involving disputes between labor and management.  According to Weinrib, leaders of the ACLU agreed with labor that the Norris-LaGuardia Act was a crucial civil liberties victory.

In the 1930s, however, the Supreme Court backed away from Lochner, rejecting its right to contract jurisprudence.  Congress also rejected Lochnerand embraced a collective right to contract when enacting the National Labor Relations Act.  In the 1937 case of NLRB v. Jones, the Court upheld the constitutionality of the NLRA.  Pro-labor court rulings began to seem possible. In the 1939 case of Hague v. CIO, the Court held that labor activists had a First Amendment right to freedom of speech and assembly in public spaces.  Hague arguably marks the high-water point of the First Amendment rights of union workers.

Even as labor celebrated the NLRA and Hague, the National Association of Manufacturers and the Liberty League began to formulate an alternative use of the First Amendment to undermine unions.  They formed the “right to work” movement, arguing that workers had a constitutional right not to join a union.  In The Workplace Constitution: From the New Deal to the New Right, Sophia Lee outlines how the right to work campaign raised First Amendment claims against agency fees, laying the groundwork for Janus.  Katherine Fisk has argued that a ruling for the plaintiffs in Janus would revive Lochner, based in the same reasoning that labor resisted with their right of agitation.  A century after the progressive movement resisted court rulings against workers’ rights, a Janus-like Court is using the First Amendment to quell the rights of union workers.

Importantly, teachers in West Virginia, Oklahoma and Arizona would not be affected by the Janus ruling.  They already live in states which prohibit government workers, including teachers, from engaging in collective bargaining and going on strike. In those states, the teachers’ only means of bargaining is political pressure on the state legislatures, which set the terms of their employment.   If the Court rules as expected in Janus, public sector workers in every state will be in the same boat as the teachers in West Virginia and Oklahoma.  The mass protests in those states are reminiscent of those of workers in the 1930s who demanded a right to organize in unions.  Will Janus thus ironically inspire more 
political activism by public workers? 

 

Civility, Collegiality, and Supreme Court Seating Arrangements

Yesterday on SCOTUSblog Andrew Hamm pointed out a great new article in the March 2018 issue of the Journal of Supreme Court History. The article is called “Chief Justice Burger and the Bench: How Physically Changing the Shape of the Court’s Bench Reduced Interruptions during Oral Argument” and the authors are the political scientists Ryan C. Black,  Timothy R. Johnson,  and Ryan J. Owens. In a fascinating empirical study of the Supreme Court, Black, Johnson, and Owens show how the adoption of a curved bench in 1972 reduced the frequency with which the justices interrupt each other during oral argument.

An Unlikely Union Victory in West Virginia

In the past couple of weeks, 35,000 school employees in West Virginia engaged in a 9-day strike.  Though they are not represented by a single union, all school employees in every county participated in the strike.  The teachers retained their solidarity, and won a 5 percent pay raise for all state public workers.  The teachers’ success was unexpected given the hostile legal environment for labor in West Virginia.

West Virginia prohibits government workers, including teachers, from engaging in collective bargaining.  It is also illegal for public employees to strike in West Virginia.  The teachers’ only means of bargaining is political pressure on the state legislature, which sets the terms of their employment.  Thus, the West Virginia teachers’ victory represents a rare and surprising success for the labor movement at a time when labor is under siege.

Last week, the United States Supreme Court considered the case of Janus v. AFSCME, which will determine whether government unions can continue to collect agency fees from all of the workers that they represent.  Like Janus, the West Virginia teachers’ strike also brings to light the role of public sector unions in our country.  To help me understand the West Virginia teachers’ strike, I talked with my colleague, Joe Slater.  The author of Public Workers: Government Employee Unions, the Law and the State, Joe is one of the foremost experts on public sector unions in the country.  The following is a transcript of our conversation:

Zietlow: Apparently the West Virginia teachers were not allowed to bargain collectively.  Why would they want to join a union?

Slater:  Public sector unions are not governed by the federal National Labor Relations Act, but by state laws which regulate public sector workers.  Around 10 states, including West Virginia, do not allow government workers to engage in collective bargaining. In those states, unions represent employees in other contexts.  They help their workers to assert their rights under other employment laws such as Title VII, the Fair Labor Standards Act and civil service laws.  Some unions also provide benefits, such as health insurance and pensions. In states which do not allow collective bargaining, unions tend to be smaller and weaker than in other states.  Nonetheless, some workers still join those unions.

Zietlow: How could the West Virginia teachers strike when West Virginia law prohibits public workers from striking?

Slater:  I do not know why the state of West Virginia did not sue to stop the teachers’ strike.  Most likely, state officials thought it would be politically costly to do so.  Also, there were no replacement employees who could have filled in for the striking teachers.

Zietlow:  In the Janus case, most observers think that the Supreme Court is going to strike down agency fees and weaken public-sector unions.  Public sector unions in West Virginia are already prohibited from charging agency fees.  Should we expect more massive strikes after Janus?

Slater:  Some people have argued that workers are likely to be more militant after Janus, and that the West Virginia teachers strike reflects this militancy.  However, I am skeptical.  Janus would effectively impose a “right to work” regime on public workers.   We’ve had a lot of historical experience with “right to work” laws, and by and large they have not radicalized labor.  Instead, right to work laws have weakened labor, and I expect Janus to do the same.

Also, teachers tend to be a reliably popular set of public workers.  Similar strikes in other states, involving other, less popular, public employees are unlikely to succeed.  Still, I never would have predicted that the West Virginia teachers would succeed, yet they did so against all odds.  Who knows what the future will bring? 

Why Ending Gerrymandering May Benefit the GOP

The most important election law case before the United States Supreme Court this term is Gill v. Whitford, a partisan gerrymandering case from Wisconsin. In 2011 the Republican legislature drew the state’s district lines with the goal of building an insurmountable partisan advantage for the GOP. The 2011 Wisconsin redistricting plan packed Democratic voters into districts in the Madison and Milwaukee areas while evenly dispersing Republican voters over the rest of the state’s districts. The results were predictable. In the subsequent round of state Assembly races, Republican candidates garnered less than half the popular vote, but they won 60% of the Assembly seats.

To be sure, it’s not just Republicans who engage in partisan redistricting. With a handful of exceptions, most states (red and blue alike) employ nakedly partisan criteria for legislative and congressional line drawing. Indeed, while it mulls the Gill case, the U.S. Supreme Court recently granted certiorari to a case out of Maryland, Benisek v. Lamone, in which Republican plaintiffs have challenged the Democratic legislature’s 2011 redistricting plan.

But there is no doubt that in the 2010s, partisan redistricting has benefited Republicans far more than Democrats. Sweeping Republican state house victories in 2010 gave the GOP control of a critical mass of legislatures during the crucial 2011 session, when every state conducted its decennial redrawing of legislative and congressional district lines following the U.S. Census. Republicans also reaped the benefits of new and highly advanced computer programs that made the art of the partisan gerrymander more potent than ever before.

The Talk

Many commentators have lamented the fact that the sole African-American on the Court for a two generations has been a Justice with a perspective on race that is atypical of the average of African-American citizen.  Often that's understood in terms of outcomes: Clarence Thomas is way more conservative on almost every issue than most African-Americans.  But what is less obvious is that we are missing content.  Today, in Utah v. Strieff, Justice Sotomayor's dissent shows us what we've been missing:

This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification.  As the Justice Department notes, many innocent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone’s dignity can be violated in this manner.  But it is no secret that people of color are disproportionate victims of this type of scrutiny.

For generations, black and brown parents have given their children “the talk”—instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them. See, e.g., W. E. B. Du Bois, The Souls of Black Folk (1903); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015).

By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged. We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere.  They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but. (Some cites omitted.)

This is powerful stuff.  Steven will presumably be underwhelmed by Justice Sotomayor's citation to On the Run, however.

Justice Thomas Asks A Question

His first in many years.  He expressed concern about the collateral consequences of a misdemeanor conviction.  Not really the kind of collateral consequence that folks like Michelle Alexander and Marc Mauer worry about, however.   All the details here.

C-SPAN Series on Historic Supreme Court Decisions

C-SPAN begins a twelve-part television series on landmark Supreme Court decisions next week, kicking off with Marbury v. Madison.  Readers can find additional details here.

U.S. Supreme Court Fellows Program

From an email message which I received earlier today:

The U.S. Supreme Court Fellows program is now accepting applications for the 2016-2017 term.  The fellowship, which is open to both junior and mid-career candidates, might be of interest to both current and aspiring academics as well as graduating and recently graduated law students.

Four fellowships are awarded each year, and each fellowship is unique in its scope and focus.  Interested persons can read more about the program at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2378584.

The application can be accessed on the Fellows Program page of the Supreme Court website as well as on USAJOBS.  Applications are due by November 6, 2015.

The Sticky Slope from Obergefell to Polygamy

Polygamy emerged as a recurring topic in the avalanche of commentary unleashed almost the moment that the Supreme Court extended marriage equality to same-sex couples in Obergefell v. Hodges.  Since the topic is bound to come up in law school discussions in classes as well as faculty workshops, it’s worthwhile to pause and ask why.  Articles in Slate, Politico, the New York Times and Religious Dispatches rushed to debate whether polygamy will be the next frontier in marriage equality.   The deluge is partly explained by the perennial popularity of polygamy as a topic – from TV shows Big Love and Sister Wives to immense press coverage when a state decides to enforce anti-polygamy laws – and the freedom of pro-gay commentators to say what they really think once the Supreme Court finally ruled.  But why just polygamy?  Why not child marriage and incest, two other outré expressions of intimacy that commanded quite a bit of the Court’s attention in oral arguments.    

One answer is that the slope is more slippery in the direction of polygamy than it is in child marriage and incest.  The path from Obergefell toward marriage equality for polygamists might be short and clear, while the route to abolishing age-of-consent and incest statutes could be more like a forested hillside full of social and legal impediments to marrying your sister or a 6^th grader.  That’s probably true, but there path from Obergefell to polygamy is probably a lot more circuitous than many people think.