2019 Supreme Court Roundup


DICK HOWARD: We
have a panel today of very well-informed people
who’ll be looking at the term that’s just ended, as well
as I’ll give a thought or two about the term that’s
about to begin. We will obviously only
pick selected cases as there’s no way in the world
we could cover everything that happens in one term, so
we’re not trying to do that. Leslie Kendrick will be talking
about a First Amendment case dealing with immoral or
scandalous trademarks, so keep it down if you will. Rich Schragger will talk about
a First Amendment religion case dealing with the
cross in Maryland, which was on public land. And then finally Brian Cannon,
it’s just been commented, it is the first time we’ve
had a non-faculty member ever in my recollection. And we have him because he is
probably the country’s leading expert on gerrymandering cases. He’s very much involved
in these cases himself. So welcome, Brian, nice
to have you as well. We will not be doing
a Q&A session as such, so when the program
is complete, I imagine the panelists
don’t mind if you want to approach them
afterwards with a question that you might have. So before we turn to
the individual cases that my three colleagues
will be taking up, I want to share with you
thoughts about three things. First, something about
patterns and personalities in the most recent Court term. Secondly, several major
cases other than those that the other panelists
will be talking about. And then finally,
a thought or two about prospects for the term
that will begin next week. As far as patterns
and personalities, this has not been
a blockbuster term. There were not that
many major rulings. The Court stayed
away from the sort of hot-button controversial
areas for the most part, denying review in cases
involving such things as abortion and gay rights. And indeed, cases it did
decide it often decided on somewhat narrow grounds. There were two instances when
the Court overruled precedents, one having to do with
property rights, the other having to do with
whether states can sue– be sued in courts
of other states. There were two
other cases, though, in which the Court
retained precedents, refused to overrule
rather more important precedents, one dealing
with double jeopardy and the other dealing
with deference to the administrative agencies. So all in all, I would
say that the Court acted, in some respects, like
a court in transition from the sort of era when
Kennedy sat on the Court to the era of Kavanaugh. A few numbers. In terms of output, Justice
Thomas outdid them all. He wrote a total of
337 pages of opinions. That’s majority
concurring and dissents. In terms of quickness
off the plate, getting back and
finishing opinions up, Justice Ginsburg
holds the prize. 71 days on the average,
which is really pretty fast. She may be the oldest justice,
but she’s also the fastest. I was at a dinner in Washington
last week in which she was the guest of honor,
and the reception she got, I thought I was
at a rock concert. I couldn’t believe the
unalloyed enthusiasm that people had for her. In terms of unanimous opinions,
it was a fairly divided term. The Court was
unanimous in 28 cases. That’s altogether about 39%. There have been other
Roberts Court terms when there’d been
more unanimity. In terms of reversals
of lower courts, as would not surprise
you, I suspect, it was the Ninth Circuit
that took it on the chin. Altogether there
were 14 decisions from the Ninth Circuit
in the Supreme Court, and they were reversed
in 12 of them. They probably overlooked
the other two. Personalities on the
Court, as all of us know this was the term in
which Justice Kavanaugh took Justice Kennedy’s seat. That appointment was expected
to shift the Court to the right. It was also expected to
thrust Chief Justice Roberts into the ideological
center of the Court, and both of those things
did, in fact, happen. I think they were
fair predictions. But Kavanaugh played a
somewhat, for me at least, a somewhat unexpected role in
the Court’s balance of power. Indeed, in many ways,
his voting pattern was not all that
distinguishable from that of Chief Justice Roberts. So if you like to talk
about swing justices, which is a somewhat
misleading concept, but if you like that
idea, it may well be that Kavanaugh is
approaching that role. Certainly Kavanaugh
was the justice of the nine of them, the one
most often in the majority. This term he was in
the majority in 91% of cases, which
is quite striking, Roberts being next with 85%. And if you think of the
pairings of justices, who agrees with whom, Kennedy– I’m sorry, Kavanaugh–
and Roberts held that prize with 94%. Pretty high rate of
agreement, just passing Ginsburg and
Sotomayor who had 93%. Obviously it’s interesting
to talk about Justice Kavanaugh and Justice Gorsuch. They agree a lot on
pretty important things like gerrymandering, the
census case, death penalty, religious rights,
abortion rights. There are a number
of areas where they seem to be in agreement,
but there are some differences. They’re not by any
means Bobbsey Twins. Kavanaugh is as likely to be in
agreement with let’s say Kagan as he is with Gorsuch,
and I mentioned that he was in the majority
more than any other justice. Now, Kavanaugh and Gorsuch
have remarkably similar biographical sketches. They went to Georgetown Prep,
they both went to Ivy League law schools, both were law
clerks to Justice Kennedy, they both worked for
the Bush administration. They both were named
to the Court of Appeals in the same year, 2006. Both were on the sort of favored
list of the Federalist Society, so you could expect some
ideological similarity. But there are enough
differences that make me wonder if,
as time passes, we’re going to find that Gorsuch
is more like Scalia was when he was on the Court, and
Kavanaugh may in some respects be more like Justice Kennedy. The agreement rate between
Kavanaugh and Gorsuch was about 70% in
the past term, which for two justices appointed
by the same president in his first term is a fairly
low percentage of agreement. Gorsuch actually agreed the
most with Justice Thomas, 81% all together. I think he will prove
to be on the Court an originalist like
Justice Thomas. He certainly, along
with Thomas, seems to be one of the justices most
inclined to overturn precedent. How about Chief Justice Roberts? I mean, it is the Roberts Court,
and not only in name but maybe now in fact, in practice. The past term might be said to
be the term in which Roberts took charge. For example, he made his
influence patently obvious in a stunning pair of cases. They were decided on the
same day last term, one involving the census,
the other involving partisan gerrymandering. Both were 5-to-4 decisions. And in the census case,
he joined the liberal wing of the Court, and in
the gerrymandering case joined the conservative
wing of the Court. So he was the decisive vote in
both cases and the only member of the Court to be in
the majority in both of those cases. Now, conservatives are quick
to be upset about Chief Justice Roberts. You remember when he cast the
deciding vote in the Affordable Care Act case and
how people said he strayed the reservation. And one conservative,
the president of the Committee
for Justice, was quoted as saying, “the
census decision will surely deepen the impression that
Roberts is the new Justice Kennedy rather than the reliable
fifth vote conservatives hoped for and liberals feared.” So in both of these
cases that I mentioned, census and partisan
gerrymandering, the dissenters complained
that Roberts’ vote was warped by political considerations. So Roberts, it’s interesting
that in the census case where he, you may
recall, somewhat reluctantly at the
end of the case, said in effect that
the rationale that was being advanced
by the administration for adding the
question to the census question in Roberts’ term
seems to have been contrived. And compare that, if
you will, to his opinion in the previous decision in
the Trump travel ban case, in which he talked about
Trump’s public statements and nevertheless was
willing to set those aside and say that because the
ban was neutral on its face, he would vote to uphold it. So I think that
whatever you may say, one should remember that
Roberts by and large is a mainstream conservative
legal movement chap. You think of cases like DC
versus Heller or Citizens United or Shelby County
or cases like that. So those are
observations on the term. Secondly, a comment
about major decisions. We will hear about three
of them in a moment. But I simply want to mention
that besides those, we had the census opinion, which
was, after all, politically important. We had the race discrimination. That was a 7-to-2 decision
in which the Court held that this was a case involving
peremptory challenges to jurors, and the Court held
that the Constitution had been violated when peremptory
challenges had been used to exclude potential black
jurors in a Georgia death penalty case. Double jeopardy, I mentioned how
the Court, against this 7-to-2, refused to overrule
precedents holding that to try a particular person
for an offense in both state and federal courts does
not violate the prohibition on double jeopardy. Finally, one other
case at interest, a nonconstitutional case
in the area of anti-trust. I was intrigued when
the Court allowed a major anti-trust action
against Apple to go forward. And here we had
Kavanaugh joining the four liberals on the
Court to make that possible. And in general the
Roberts Court has not been very friendly
to consumers, so that case seemed to be
something of an aberration. A comment about abortion cases. Obviously we know
that Justice Kennedy was one of the three concurring
justices in Planned Parenthood versus Casey, making
possible the upholding of the core premise
of Roe versus Wade and requiring a showing. You could not place an undue
burden on access to abortions. And Kennedy of course
is now off the Court, replaced by Kavanaugh. And I think there are three
justices on the Court, Thomas, Alito, and Gorsuch, who would
probably jump at the chance to overrule Roe
versus Wade, which leaves us to wonder where
Roberts and Kavanaugh will come down on that. I think that’s unclear. Roberts, for example,
has proved himself to be, in at least some
cases, something of an institutionalist,
which is to say he might be slow to have
the Court rush to overrule Roe versus Wade. And there were cases this
term, one from Alabama, one from Indiana,
where the Court denied review of lower
court opinions that had struck down restrictive
measures in both of those states. So I think the Court
is going slowly, if maybe Roe versus Wade
will fall to the axe someday, but my prediction
is not very soon. Trump won one important
case this summer in July. The Court gave Trump a
victory in his effort to build his wall on
the Mexican border. And the Court, in an unsigned,
one-paragraph opinion, seemed to doubt the standing of
the challengers in Sierra Club to bring the case
they had brought, which probably suggests that in
the end the conservatives will prevail on– the administration will prevail
in that particular case. Finally, three
cases I thought you might like to watch in the
term that begins next week. First is a gay rights case. It’s a statutory case,
application of the Civil Rights Act of 1964, and the Court
will decide whether or not that statute protects
gay and transgender workers from
discrimination as it protects let’s say on the
grounds of race or gender. The EEOC has held that
the Act does apply, and the Trump
administration disagrees. So this is a curious case
in which up to this point, you’ve had federal
government lawyers on both sides of the
case, one arguing for the statute’s application,
and the other arguing against. This case will be the Court’s
first test of a gay rights LGBT proposition since
Kennedy’s retirement. And he, as you may know,
mattered enormously. He wrote I think all of the
Court’s major gay rights opinions starting with
Lawrence versus Texas and coming right on
through Obergefell. Second case to watch is one
that’s going to be close, I think, and that is there
is a Second Amendment case. It’s very curious that since DC
versus Heller was decided over a decade ago, how the Court
has just simply not been taking Second Amendment cases. Yet Justice Thomas
has been very upset. He calls the Second
Amendment an orphan of the Court’s jurisprudence. But the Court seems
to have turned down various opportunities to
place a gloss on Heller. The case that’s been pending
is from New York City, where New York City has a very
tough ordinance, or has had. It allows residents
to carry licensed guns from their premises to firing
ranges within the city, but not to second homes or
firing ranges outside the city. It’s very– even if
the firearm is just– the ammunition is in one place
and the firearm is in another. Needless to say, that’s been
attacked on Second Amendment grounds. The District Court and
the Second Circuit both upheld the New York
ordinance, but you can imagine how nervous
New York City is with the change in personnel
on the Court, with Kavanaugh now in place of Justice Kennedy. So the Court granted surety in
this case, but since it did, New York City has repealed
or amended the ordinance, basically giving the challengers
to the ordinance what they had asked for. So now New York City
has filed a motion asking the Court to
declare the case moot and therefore throw it out. And the Court was meeting
in conference yesterday to decide whether or not– how they would act
on that petition. And as far as I
know, this afternoon I’ve not heard that they’ve
issued any order yet. Finally, the third
case to follow. Politically very
important, and that’s the one that involves
DACA, the Deferred Action for Childhood
Arrivals case that involves executive power. And it might, from
one standpoint, seem to be fairly simple,
namely that the DACA program was created by Obama
in the year 2012. President Trump has
tried to overturn, to end the program as of 2017. There was a deal that I think
was in the works between Trump and Congress that collapsed
when Trump insisted on some changes to
immigration laws and also billions of
dollars for the wall that Congress wouldn’t accept. The Ninth Circuit
ruled against Trump, saying that even
though in general one administration could overturn
the action of an earlier administration, there were
not proper legal grounds for this particular action. And the Supreme
Court’s decision, whichever way it goes, is
likely to come down at a time where it would, I suspect, roil
the 2020 presidential election. So there’s a lot to watch,
and of course the Court will have its first Monday
in October as of next week. I’m sure they’ll be adding some
important cases to the docket, so it’ll be a pretty exciting
place to be studying. So that gives you the sort
of background and context. And with that, let’s turn
with great anticipation to the comments of my
colleagues Leslie Kendrick, Rich Schragger,
and Brian Cannon. Thank you very much. LESLIE KENDRICK: So
I’m going to talk about Iancu versus Brunetti. This is a case that represents
a clash between two legal areas that long coexisted. And that’s federal trademark
protection on one hand, and the First
Amendment on the other. So when we’re talking
about these two things, we’ve got a couple different
things happening that have existed for a long time. So let’s talk a little
bit about the Lanham Act, and then we’ll talk a little
bit about the First Amendment. So the Lanham Act is a
federal trademark law that provides trademark
protection for folks who want to register
their trademarks within the federal system. Now, if you have
a mark, you have something that you claim conveys
something on your behalf, you don’t necessarily
have to register it with the federal system. There are common law
trademark protections that can apply to you, but
there are certain more robust protections that come along
with registering your trademark under the federal system. And the Lanham Act governs
when you can do that. And there are a few different
conditions that apply here. And the one that’s at issue
in this case, the Lanham Act provides– it bars registration, it
bars federal registration of immoral or
scandalous trademarks. So if your mark is deemed
to be immoral or scandalous, you will not be able to receive
federal trademark protection. At issue in this case is a mark,
a fashion designer clothing mark. It’s an acronym that’s
supposed to stand for Friends U Can’t Trust, and it’s F-U-C-T,
which if you pronounce it, is “fucked.” So the mark that’s
sought is for this brand that if you pronounce
it is “fucked.” And perhaps unsurprisingly,
under the Lanham Act, this is determined to be
scandalous or immoral. And they’re denied
trademark protection. So when they’re denied
trademark protection, FUCT goes and elevates the
case to the next level, and says we should be able
to get federal trademark protection because this ban on
prohibition on federal marks– federal registration for marks
that are scandalous or immoral, this violates the
First Amendment. So that brings us to the
First Amendment side of this. So the First Amendment has
lots of different moving parts, and I’m just talking about
the speech part here, and professor Schragger is
going to talk a little bit about the religion clauses. But within speech, there’s
all sorts of things going on, but one thing is a
very strong suspicion of, and kind of presumption
against, any form of regulation on the part of the
government that looks like viewpoint discrimination And the Supreme Court
put this very clearly and concisely in
an important case, Mosley in 1972, where they
said, “above all else, the First Amendment means
that government has no power to restrict expression because
of its message, its ideas, its subject matter,
or its content.” And that’s kind
of a long laundry list of things that sound
somewhat similar and somewhat different. Subject matter, ideas, content. There’s lots of
different stuff in there, but one important part
of this is the idea that for the
government to penalize speech because of its viewpoint
is offensive to the First Amendment. Now, you might think
about this Lanham Act thing that says
you can’t register an immoral or scandalous mark,
and think about the First Amendment and think, well,
it looks like there’s a clear tension here. But in point of fact, the Lanham
Act and this idea of suspicion toward content and
viewpoint discrimination, they have coexisted
for a really long time. Lanham Act has been
around since 1946. I would say to the extent
that you can characterize the modern First Amendment
jurisprudence with any one thing, this suspicion about
viewpoint discrimination has been front and center. For decades, it’s been cleanly
articulated by the Court since the late ’60s, early ’70s. And yet, these two things
coexisted for a long time. So partly I’m going to be
unpacking why they did coexist, and now they’re no
longer coexisting. So in this particular case it
winds up with the Supreme Court with the Federal Circuit. So trademark cases end up
in the Federal Circuit, and the Federal Circuit
agreed with the mark’s holder that in fact the Lanham Act,
this provision of the Lanham Act did offend the
First Amendment and should not be enforced. And the Supreme Court
ends up agreeing with that and striking down this
part of the Lanham Act on the basis of the
First Amendment. And in some ways
it was no surprise that they did that,
because although this clash between the Lanham Act
and the First Amendment is relatively recent, this
is not the first skirmish. There was a case in 2017
called Matal versus Tam that dealt with a different
part of the Lanham Act, but another part of– Section 2(a) of the Lanham Act. This one barred
trademark protection from messages that
might disparage people, whether living or dead,
or institutions, beliefs, or national symbols. And in that case, an
Asian-American dance rock band called The Slants challenged
their denial of trademark registration on the basis of
that Lanham Act provision, and they also prevailed. The Supreme Court struck down
that provision of the Lanham Act on First Amendment grounds. So that had already
happened, and I think once that
happened people thought this case was likely to come
out the way that it did. And in fact, that
is what occurred. So we wind up with an
opinion here from the Court. It’s an opinion written
by Justice Kagan. It’s joined by Thomas, Ginsburg,
Alito, Gorsuch, and Kavanaugh. So you know, to the extent that
people sort of boil this down to just sort of crude
poli-sci signifiers about who was appointed
by Republicans and who was appointed
by Democrats. This is a mixed group
of justices here. And that’s fairly common, I
would say, in this day and age when it comes to First
Amendment speech cases. There’s interesting
relationships there. But this motley crew
joins this opinion of Justice Kagan
that says, yeah, this is viewpoint discrimination. This is obviously
viewpoint discrimination. If your mark expresses something
moral, you can register it. If it expresses something
immoral, you can’t register it. Same with scandalous
versus non-scandalous. Clearly here the government
is favoring moral messages over immoral messages,
non-scandalous messages over scandalous messages,
that’s textbook viewpoint discrimination and we’re
going to strike this down. And interestingly, the entire
Court joins that viewpoint, joins that position with
regard to the immoral part of the Lanham Act provision. So Alito files a
concurring opinion. He was already
joining the majority, but he files a concurrence
that says, yeah, viewpoint discrimination,
that’s really bad, and free speech is
under attack everywhere, and we should really be on the
lookout out for any attempts to erode free speech protections
because free speech is under attack. Sotomayor says, well
look, immoral, I get that. There’s no way around the
idea that the word immoral– that there’s viewpoint
discrimination there. But there should
be some limiting. There should be some sort
of limiting construction that the Court could put
on the idea of “scandalous” and this should be
limited, really, to things that are
just lewd or profane. Basically, words like fucked. Right? That’s a word that we should
not allow trademark registration for. And in the very
beginning of her opinion, she says we’re going to
see the floodgates open, and we’re going to
see bunches, bunches more trademark registration
applications come in for things that say this and worse. And there’s not going to be any
way for the federal government to stop them, so the Court
should have limited– they should have preserved
the scandalous provision and tried to construe it in some
way that limited it, basically, to curse words. And Breyer and Roberts have
their own concurrence– partial concurrences, partial
dissent saying the same thing. Saying immoral, that has to
go, but scandalous should be narrowly construed to suggest
that you cannot have something like this particular word. So how do we wind
up in this space? Because these two things, Lanham
Act and the First Amendment, existed for a long time
without people thinking that the prohibition on content
discrimination and viewpoint discrimination had anything
to do with this Lanham Act– these Lanham Act principles
or components that now have been struck twice, one
in Matal and one in this case. So the story here is a story
about the ever-expanding scope of the First Amendment
and freedom of speech. So the Court has spoken
very categorically for a really long
time in the way it did in the early ’70s
and Mosley, above all else the First Amendment means
the government can’t do this. But that’s always meant
within certain spheres where the First
Amendment is operating the government can’t do this. And for a long time, it
was just taken for granted that the Lanham Act was
not part of that sphere, that the government
could regulate there with a freer hand than
it could in other places. So the government
can’t arrest you for having a jacket that
says “fuck the draft”, that was well
established in Cohen versus California in 1971. You can’t be arrested
for disorderly conduct for just bearing that
slogan on your jacket. But do they have to give you
federal trademark protection for your FUCT trademark? No. And those two ideas
were sort of– they could coexist
at the same time. Now, everyone sort of thinks
that the First Amendment has– there’s no reason to say
that it doesn’t apply in a particular place unless you
can clearly point to a reason that it doesn’t apply. So it’s just been
kind of expanding, and now it’s hit the Lanham Act. And some people might
think that’s good, some people might
think that’s bad. I’m not suggesting
that the First Amendment existed in its optimal
state at some particular point. The entire history of the 20th
century and the First Amendment is a history of expansion. But we might wonder whether
this is some place it actually needed to go or not, if the
worries that the Court had when it originally articulated
these sorts of concerns about viewpoint discrimination,
if those are really at issue in the trademark area. And the Court sort of
doesn’t engage with that. Nor do they engage
with the idea, which one could take this
view that federal trademark protection is a
type of privilege, and the government has
a freer hand in deciding when to bestow that privilege. Justice Roberts in his
opinion is really the only one who deals with that. Just a final note. I think the Court’s
going to have to deal with this in a variety
of different other places. So another place that it’s
dealt with it recently is in license plates. Because you might not
be surprised to know that the government
also won’t let you put this word on
your license plate. You cannot put the F-bomb
on your license plate. The government’s not going to
sit by and say, oh sure, you know, freedom of speech,
you’re allowed to do that. But that also, as people start
to see the first Amendment applying everywhere, that
became a tough thing for courts to have to describe why it
is that the government can limit what you say on
your license plate. And Virginia has this long
list of rejected slogans where people are very crafty at
trying to say something lewd or profane on
their license plates. And they have people who sit
there and say, oh, not that, not that, definitely not that. And the Supreme Court
finally dealt with this. And the way they got
around this problem on that was to say that the license
plates are government speech. They actually were dealing
with the design of the license plate, the sort of
sponsored license plates that you see that are pro-kids’
schools or pro-wildlife or whatever. There was one– the Sons
of Confederate Veterans wanted to do one of these
and Texas said no, no thanks. And the Court said they’re
allowed to do that, but in saying that, they
were making a point also about the slogans on
the license plate. And the way they got around
this First Amendment thing was to say that’s all
government speech, that’s the government talking. So whatever vanity plate
you have on your car, apparently it’s the government
that’s saying that, not you. So you can see that
there are places where we might think the
government has some leeway to get engaged in some forms
of discrimination and content. Once we see the First
Amendment as something that occupies all those spheres,
we have to explain why that is. And in this Court,
they just go for it and say, yeah, you
can’t do that here just as you can’t do it
on the public streets. RICHARD SCHRAGGER: The Vice
Dean gets all the cool cases. That’s great. This is on, right? So it turns out the
case I’m talking about is also about government
speech, so it’s a great segue, actually. And the question in the case
is when the government speaks, are there any limits
to what it can say? Traditionally, there’s
been at least one limit. And there are questions
about some others, but the one limit has been the
Establishment Clause of the US Constitution which, at
least before this case, put some limitations–
and maybe after this case, we’ll have to see– some limitations on the
types of religious speech that the government
could engage in. And this case is about that. So the case is American Legion
versus American Humanist Association, and it’s
colloquially called the Bladensburg Cross Case. And it’s about– the case is
about a 40-foot cross that was erected to memorialize
World War I soldiers who had died in that conflict
and had stood in Bladensburg, Maryland since it was erected. It’s publicly owned and
it’s publicly maintained, and it’s a big, Latin
cross in the middle of a busy intersection. This was challenged by the
American Humanist Association. And the case, the
Court was faced with the question of whether
a Latin cross of this kind is violative of the
Establishment Clause. The court ruled that it was not,
and that was not unexpected, actually. The court has been
moving in the direction of allowing more religious
content to government speech in the past
couple of decades, and more generally allowing
more support of religion, and sometimes specifically
Christian religion. And I’ll say a little
bit more about that, but let me talk about the case
a little bit and the background. The Establishment Clause was
not applied to the states until fairly recently. It was in the middle
of the 20th century when the Establishment
Clause first gets applied. Remember, the First
Amendment says “Congress shall make no law”
so Justice Thomas actually is of the view that the First
Amendment doesn’t really apply to the states. That’s a minority view
and continues to be so, but it is one that
Justice Thomas holds. And some of the first cases
were cases about school prayer. Those were the big
cases in the ’60s. And the court actually
struck down school prayer, which was actually a pretty
controversial and dramatic move, and still in
some cases is dramatic. In the ’70s and ’80s, we
had cases about creches and other kinds of religious
displays during holidays. And the court
struggled to figure out how to assess those
kinds of displays. For a while, Justice
O’Connor had a test called the endorsement test,
which didn’t quite pick up a full appreciation on the
Court, but seemed like one that might be workable. Which was the government
can’t convey messages that send a message
of outsider status to individuals
that make them feel like second-class citizens. And that was the test
that was sometimes applied in conjunction
with some other tests that the Supreme Court applied
in Establishment Clause cases to deal with cases
in which governments had sponsored specific religious
displays of various kinds. This got a little messy. So the Court would
start looking at, well, was the creche with the baby
Jesus next to reindeer, next to a menorah, next
to a Christmas tree, what does all this mean? Next to some lights. And how do we figure
out whether this is endorsing a certain
religious view, whether it’s sending a
message of outsider status? There was lots of criticism
of the endorsement test. And more generally,
that the tests of the Establishment
Clause, namely what’s called the Lemon Test,
which was a test that was set up to deal with funding
of religious institutions by the government and look to
the purpose of the funding, the effects of the
funding, the entanglement of government with religion,
those kinds of things. But there was
dissatisfaction with these, and this dissatisfaction
has always sort of been part of a broader
cultural divide about what are the appropriate symbols
that the government can use in terms of religious symbols? What is the appropriate
place of government in funding religious schools and
other religious institutions? And what’s appropriate,
more recently, in terms of allowing
for exemptions from generally applicable
laws for religious people? That’s really the
three areas in which we see religion clause
jurisprudence in its most conflicted. Some of those are Establishment
Clause cases, some of those are Free Exercise Clause cases. In any case, we got
to more recent cases involving things like Ten
Commandments monuments. Judge Roy Moore famously put a
giant Ten Commandments monument in the Alabama Supreme Court. They took that out. But there were some
Ten Commandments cases in the Supreme Court, and
the Court wasn’t quite sure how to deal with these. Justice Breyer turned
out to be the swing justice on those cases. They had two Ten
Commandments cases. He upheld one Ten Commandments,
and he struck down another one. One was in a courthouse
or in a city hall, one was on the Texas kind
of legislative grounds. And he didn’t have
much of a theory, except what he said was the
Texas monument has been around for a long time, and
if we take it down, people are going to get mad. That was basically the theory. He was pretty actually
explicit about it. He didn’t quite say
people would get mad, but he said they might
react to us ordering all these monuments
to be taken down, all these Ten
Commandments monuments, because there’s a bunch of
them all over the country. People might react to that by
getting angry about religion, and that might generate
the very divisiveness that the Establishment
Clause or the First Amendment is supposed to prevent. So we shouldn’t contribute
to that divisiveness by telling local governments
or state governments that they have to take
down their Ten Commandments monuments. So that sets the stage a
little bit for this case. Not a Ten Commandments,
a large cross. There’s also a prior
case, a recent case called Town of Greece,
in which a New York town opened its city council,
its town council meetings, with prayers. Now, the way they
did this is they invited local clergy to come
in and give these prayers. It turns out there really were
only mainly Christian clergy in the town limits. Other clergy were outside
of the town limits. The Jews were outside of
the town limits, apparently, or the Muslims were
not in the town, so they didn’t get invited. And it turns out
most of the prayers, therefore, were
Christian prayers. And they were quite sectarian. That is, they
invoked Jesus Christ, they made statements
about the Savior, et cetera, et cetera, right
before the town council would do its business. And the court upheld those
in a kind of a funny opinion. Justice Kennedy is saying, he
was on the court at the time, saying different from
the license plate case, this is not government speech. This is just the private
speech of the ministers who’ve been invited up here to speak. And we can’t really
regulate what they say. Justice Kagan has quite a
powerful dissent in that case. And so that’s a 5-4 case that
sets the backdrop to this case. This case seems to be
easier for the Justices. Breyer joins the majority here,
and so does Kagan, actually. And so you get a
pretty lopsided victory for the Bladensburg Cross, which
is upheld as constitutional under the Establishment Clause. But there are two
notable things, and they’re quite
interesting if you take a look at this opinion. The first notable
thing about the opinion is that Justice Alito
writes for the Court. And it’s a little
fractured, there’s some pieces that don’t
all fit together. But Justice Alito goes through
and explains how the cross is not a religious symbol. Now, that’s sounds a little
strange, but basically what he says is, well,
it’s a religious symbol in some contexts, but in
this context, in World War I memorials, the cross became
kind of a secular symbol of memorializing the war dead. And he in fact goes through
some cultural history of the World War I era, or
the post-World War I era, to describe how across
different communities the cross became, in
many ways, secularized. And he observes–
while doing so, he makes the following
set of observations. He says meanings
change over time, and sometimes the
meaning of a symbol becomes different over time. And he says sometimes the
purpose of a symbol changes over time too. And sometimes it’s
hard to figure out what the purpose of a symbol was
or the meaning of a symbol is. All of this, when he’s
talking about these things about meaning, and messages,
and what kind of meaning is conveyed by certain
symbols, a lot of this is to cast doubt on an
endorsement kind of test, or a purpose-informed test,
or a meaning-informed test, because he wants to say
we should probably get out of the business as a court. We should probably get
out of the business of trying to ascertain the
meanings, or the purpose, or the intent of these
kinds of symbols. He doesn’t say we’re going
to get out of it entirely, but he says, well. And the Court comes
up with a rule which is that there
will be a presumption of constitutionality for
long-standing practices, symbolic practices like these. He doesn’t tell us
what long-standing are. This monument, this cross
is pretty long-standing, and this looks a little like
Breyer’s test in the Texas Ten Commandments case where he
says, well, it’s been there for a long time, so it’s OK. It also seems to be a
way of saying, well, we’re not sure
about new crosses. So if Roy Moore or somebody
else goes around and starts putting up crosses on
the top of schools, or public buildings,
courthouses, or city halls, new crosses. We might think those are
different, although we’re not quite sure why exactly. But it sounds like long-standing
practices have attained a kind of secular meaning. They don’t mean exactly what
you think they might mean. And so they’re OK. The second thing that’s really
interesting about the opinion is that normally,
what you would look at when you’re looking at the
messages sent by government speech, the messages
conveyed, is you look to see what
folks who aren’t part of the dominant religion
think that message is, right? The minority
religionists out there, or the people without any
religious commitments. And they would look at it, and
do they think it’s a cross? Do they think it’s religious? Is this something that’s
offensive or alienating to them? But the Court doesn’t do that. What the Court does is
say, similar to what Breyer said in the Texas case but not
exactly the same, the Court says, what’s the
message that we would send if we were to order
the removal of the cross? What’s the message
that we would send? Not the message of
the cross itself, but the message that we
would send or the Court would send in its action
in removing the cross or ordering its removal? And the Court says quite clearly
that could express hostility to religion. It would express
hostility to religion or could be understood
as hostility to religion, which is contrary
to the neutrality that is required of the Establishment
Clause between religion and non-religion or
between religions. So this is a pretty
clever move, and I want you to see what it is. It’s basically saying the
Establishment Clause– it doesn’t quite say this,
but it gets close-ish– the Establishment
Clause requires us to maintain the
cross, as opposed to requiring us to
order it to be removed. That’s pretty dramatic. It doesn’t quite say that. What it says is, well, there is
an Establishment Clause value to not ordering this
cross to be removed. But basically it says
the majority religion and the majority culture, this
majority sort of a culture, has a role, and
if they would feel like this was hostility to
religion by removing the cross, then that’s going to be
contrary to Establishment Clause values, which seems to
suggest that the Establishment Clause is then a shield
that protects existing religious practices
of the government, or at least ones that
have a long history. And so this raises some– for me, it raises some concerns,
it raises some questions. One question is
what test are you going to use to
figure out what to do with new crosses or new things? Is it just that we’ve had
crosses before, therefore we can have crosses again
wherever they happen to be, or Ten Commandments, or
any of these other things? What about prayer in
school and other kinds of things which had a
long history until they were overturned? And lots of other
religious practices, especially in a polarized
political environment in which religion has become
part of that polarization to some extent. Some have offered
a historical test. Well, are they historic? Were these practices
historically grounded? It’s not clear that’s
the test, but there are some justices who think
that no religious symbols are off-base for the government,
that the government can speak in any register at once
religiously, as long as it doesn’t coerce individuals to
practice a certain religion. This is not the
majority view, but it’s becoming much more plausible
that the Court may continue to move in the
direction of saying, hmm, these religious
practices, even though they’re majoritarian religious
practices, even if they embrace the central religious symbol
of a particular religion, are fine. And we’re going to allow much
more leeway for the government to speak in a
religious register. They’ve done this
with funding as well. Religious funding is now
much more broadly acceptable, in fact required in
certain instances, when before it had been disallowed. That is a big change in the
Establishment Clause and also the Court. You’re probably aware of many
cases in which the Court is dealing with
religious exemptions, and they’re very amenable
to exemptions to existing laws for religious persons. This has moved the Establishment
Clause and the Free Exercise Clause into kind of
uncharted territory, and it is a repudiation
of a separatist kind of constitutional doctrine
that had prevailed before this Court,
before the Roberts Court and before, in some ways,
the Rehnquist Court. So we’re going to see
more of this, I think. Especially Alito,
Gorsuch, and Kavanaugh seemed to be interested
in these kinds of cases, and they seem to be
willing to expand the realm in which
government can speak in a religious register. Thanks. BRIAN CANNON: So I
want to talk to you. We’ve had an interesting
decade at the Supreme Court with regard to
redistricting and voting rights in general. And I want to kind of paint
that picture a little bit and kind of think of it as
a bit of a yellow brick road we’ve been on, and we just
got to see the wizard in June. And there’s a bit to
be learned from there. But let’s go back. The two cases that
ultimately we’re going to be talking about
that were merged into one. One is the Maryland
case, Lamone v. Benisek, and the second one was the
North Carolina case, which was Rucho v. Common Cause. But before we get into that,
when I was in law school, Kennedy had just issued the
Vieth v. Jubelirer opinion, in which there was
a split on the Court as to whether partisan
gerrymandering, or political gerrymandering,
was unconstitutional. And there were four justices who
said no way, it’s totally fine. The founders put these
kind of political questions in the hands of the most
political people, that’s where it goes. There were four on
the– the four liberals thought, well, for sure
this is a violation of your right, a fundamental
right in our country. And then there was Kennedy
in the middle saying maybe there’s like a math test that
could help us here, right? And so he sided
with the liberals in saying that it
was unconstitutional, but just, I don’t
know how to tell you. I don’t how to call balls
and strikes on that. Right? And it is a real
problem for the Court, and that put us on
this kind of quest where a ton of very,
very, very smart lawyers spent a ton of nonprofit
money, and time, and effort, and energy to
find the solution that Justice Kennedy was after. And I think what I– I was in a meeting with
a lot of these lawyers, and some of the
funders, and some of the other folks who are
advocates like I am in New York right after Kennedy had
announced his retirement. And one of the lawyers
remarked, well, thank God Kennedy is gone now,
because I don’t have to be disappointed by him anymore. Which I think it’s a good way to
look at Justice Kennedy’s term in regards to this. But let me back up to 2013
in Shelby County v. Holder. This is not a
redistricting case, but it is an important
case in voting rights. The Voting Rights Act
has Section 2, mostly that’s what we’re dealing with
in subsequent redistricting cases. We’ll talk about that. But it was about Section
5 and in preclearance, and the formula in
Section 4, by which you get on what I call
the naughty list where you have to be precleared. In that case they basically
gutted the formula. They kicked it back to Congress
to say you guys come up with a better formula. I don’t think anybody’s holding
their breath for that to happen anytime soon, but it has
had some ripple effects, even a practical–
so first of all, it’s going to have some
ripple effects in 2020, where, for the first time
in a very long time, a lot of states’ and localities’
maps will not have to be precleared. Two, there’s been a
huge increase in concern among voting rights advocates. If you think about people
that are not just in my space, but broadly in the
voting rights community, specifically folks who are
advocating for communities of color, this is
a huge red flag. I mean, this is a loss anyway,
but it’s also a red flag for what might be coming. And third, I think it
emboldened a whole series of restrictive voting
laws that came after. I do want to mention with
Shelby County though, is I’m not sure
preclearance with regard to racial gerrymandering
did that good of a job. And here’s what I
mean about this. All the cases I’m going to talk
about racial gerrymandering, and I’m going to grossly
oversimplify and blow through them in order to
paint the picture here. But all those other
cases were precleared. And in fact, the
two Virginia cases, we’ve had two different
sets of maps struck down in Virginia on racial
gerrymandering grounds. Not only were they
precleared, they were precleared by the
Obama Department of Justice. And the person, the lawyer
who actually signed off on the piece of
paper, I couldn’t believe this when I saw
it, was actually Tom Perez, who’s now the head of the DNC. And he will go on about how
bad of a racial gerrymander these things were, and
yet, he precleared them. So it’s an interesting
question of the effectiveness of the Voting Rights Act
preclearance in this space. So all right, racial
gerrymandering. There were two
cases in Virginia, but also there were
cases in Texas, Georgia, and North Carolina. Mostly we’re talking about
African-Americans being screwed over by racial gerrymandering. In Texas it was Latinos. The Court couldn’t
figure that one out, but in all the other
cases, especially dealing with African-Americans,
the Court showed a remarkable
bit of bipartisanship in a lot of cases and
even some surprises. So I want to walk through
three sets of cases. One is the Alabama Legislative
Black Caucus versus Alabama, that’s 2015. SCOTUS reversed the
lower court ruling, and basically the TLDR
version of this case is they’ve changed us from
a system whereby we always had to think about
majority-minority districts. You have to have at least 50%
African-Americans of voting age in this district or more. And even a retrogression
principle, like we have to– if you previously had
53%, you sure as heck can’t go down to 52% or 51%. That was a real concern, and
it’s been a moving target, but that’s where it was. And this is the case that
really, I think, solidifies us on the path of not
majority-minority districts, but minority
opportunity districts. And that’s a huge
change, and I think has a hugely beneficial effect. It’s something I think
is really important. And what I mean by minority
opportunity is this. So I live in the
Fourth Congressional District of Virginia. I live in Richmond. And in Richmond, the
congressional district that I’m in is 62%-ish Democrat,
but it’s 42% African-American. And in Virginia, and
like in most cases in the South, African-Americans
vote overwhelmingly with the Democratic
Party, therefore they control the nominating process. Therefore the
Democrat wins as long as there’s not racially
polarized voting, or what you might call
voting white flight, whereas if the Democrats
nominate a black person that my wife and I, who are
both white and live in the city, and Democrats would all of a
sudden vote for the Republican just because the
Republican’s white. As long as that doesn’t
happen, and that’s not really a thing in Richmond,
that kind of works. And that creates an opportunity
for a minority community to elect a candidate
of their choice. And that’s the whole
point behind Alabama, and that’s the whole– what
the Voting Rights Act is saying with regard to this. You don’t have to guarantee an
African-American, in this case, wins. You just have to give a compact
and cohesive racial, ethnic, or language minority
community a chance to elect a candidate
of their choice, and that gives you the
minority opportunity language. Then we go to Cooper v. Harris. That was 2017 out
of North Carolina. Justice Thomas switched over
and joined the four liberals– I promised you there would
be some bipartisanship here– and he wrote a really
interesting piece, but the line that I think stands
up the best from that is he said “race cannot be used
as a proxy for party.” So basically, the North
Carolina legislature was saying we didn’t draw
these districts like that because they’re black. We would never do that. That would be unconstitutional. We just drew them because
they’re Democrats. Right? So it’s a, I’m getting out
of racial gerrymandering by admitting to
partisan gerrymandering. That’s exactly what
they’re trying to do. And Justice Thomas was
saying no, no, no, no, no. You were doing it– race predominated here,
and you were doing it as a proxy for party. You might– I mean, Justice
Thomas is no fan of the VRA, but he was saying you
might be in this space because you were trying to
comply with the Voting Rights Act, but even then, you can’t
let race predominate like that. Or nor can you use race
as a proxy for party. Which brings us to
two cases in Virginia. The first was about the
congressional districts. We have a new Fourth
Congressional District that I live in
because of this case. And then the second is about
the House of Delegates district that I think will probably
turn the House of Delegates over to Democrats for the
first time in 20-some years. And so the first
one is [INAUDIBLE] and the second one
is Bethune-Hill. They’re both versus the
State Board of Elections. And at issue in this
case was a 55% threshold that the legislator set for
how many black voting age population, B-V-AP,
so BVAP, how much you had to have in each district. It was a majority-minority
district, so they ratcheted it up to 55%. Keep in mind, when
they were doing this, this was in 2011 and
2012 in Virginia, so it was before the Alabama
v. Legislative Black Caucus case that said never mind on
the majority-minority thing, focus on opportunity. So this was that
coming up to head. I will say, if you’re wondering
about the politics of this, the maps for the
House of Delegates passed with just
as many Democrats, percentage-wise, as
Republicans voting for it, including almost every member
of the Legislative Black Caucus. So while there are a
lot of Democrats today, and I would be one of them, who
would say that those maps were racially gerrymandered and did
a lot to disenfranchise minority communities, the minority
communities’ representatives at the table were
all in favor of them. It made their district safer
just like any politician would care about. And in Virginia we also saw
an explicit, Your Honor, I did not do this because
they’re black, never. We did it because
they’re Democrats. So you see an
explicit tilt towards partisan gerrymandering,
and I think they knew what was available
at the Supreme Court for them down the road, is that partisan
gerrymandering is really hard to do. So in this same decade,
there were three states that embodied different cases
on partisan gerrymandering that they thought
would be the way to go. So there’s three different
ways of thinking about this. The first is out of Wisconsin. That’s Whitford v. Gill, and
that’s the efficiency gap. You’ve probably heard about
that if you’ve read anything on redistricting reform. I’m not a huge fan of it
from a practical standpoint, but it’s pretty good, right? It gets at what we’re
trying to get at, which is an efficient
gerrymander for Team A. Make sure that they maximize
their votes that are available and waste as many of team
B’s votes as possible. Whether you’re wasting them in
a 80-20 race or a 60-40 kind of race is different. And the efficiency
gap gets at that from a mathematical perspective. And that’s kind of, I mean
they got to work on this thing exactly because Kennedy said
maybe there’s a math way to solve this. The second theory is
out of North Carolina, and that’s more of
an outlier analysis. They really leaned on some
work out of Duke University, but also the folks at Tufts
have done this as well. And basically they would have
a supercomputer generate– you put in your basic
variables, generates 20,000 different maps,
and you see this kind of nice bell curve form. Well, in the North Carolina
case, they would say look, this map that the
legislature passed is such an outlier that the
criteria you said you abided by was– I mean, you’re lying. Right? You were doing something else. By the way, a lot of
this Justice Roberts would call sociological
gobbledygook, which is worth noting. And in Maryland, this is
actually my favorite one. Maryland has a First
Amendment argument on this. So Maryland is actually
the opposite party (y). So Democrats were
screwing over Republicans, and they said that this is a– they kind of used
basic evidence, Martin O’Malley admitted
to it, that kind of stuff, to say you’re discriminating
against us based on our political viewpoint. OK, so what did we get when
this Maryland and North Carolina case– the Wisconsin case
got sent back and dismissed subsequently–
but what do we get from when we combine these two? Here’s what I thought we’d get. Well, if there’s
ever been a time that you could have a ruling
on partisan gerrymandering, you don’t need a math
test for this, right? Because what happens
in North Carolina, the representative Dave
Lewis who drew the map, said “we are drawing the maps
to give partisan advantage to 10 Republicans
and three Democrats, because I do not believe it’s
possible to draw a map with 11 Republicans and two Democrats.” He openly admitted that. Again, very much a, this
isn’t racial gerrymandering, this is political
gerrymandering. And in Virginia–
I mean in Maryland, you had Governor
O’Malley going under oath in a deposition saying,
yeah, we were trying to rig this for four Democrats. So you’ve got not just
like a smoking gun, you have a signed
confession, if you will. And I thought for
sure this would be what could move us forward. And instead, Chief
Justice Roberts said no. It’s like we pulled the
curtain back on the wizard and we’re all, oh, they’re
not going to help us. They’re not going to help
us solve this redistricting problem. Basically, the
takeaway is Roberts, in a coalition of 5-4 with the
conservatives on the Court, said the federal
courts aren’t going to deal with this question
of partisan gerrymandering anymore. That’s concerning on a
whole number of levels. I will say that he did at
least give us this bone. He said “our
conclusion does not can condone excessive
partisan gerrymandering. Nor does our conclusion condemn
complaints about districting to echo into a void.” Not condemn them to
echo into a void. “The states, for example, are
actively addressing the issue on a number of fronts.” He mentions Florida, he
mentions Missouri, Michigan, and Colorado. And I think that’s great
that he was acknowledging that, because just a couple
of years ago in Arizona versus Arizona Independent
Redistricting Commission, Roberts wasn’t too keen
on citizens’ initiatives solving this issue. He was against Ginsburg’s
opinion on that. So I think Kagan’s dissent
had the best of this. She basically pulled no punches. “For the first time
ever, this Court refuses to remedy a
constitutional violation because it thinks
the task is beyond its judicial capabilities.” And then of course
she gets to the heart of the matter, because
Roberts was like, well just vote the people
out if you don’t like them. But she mentions it’s hard
to vote the people out that rigged the system to keep them. Yeah. So all of that to say that
one of the big things Roberts had trouble with was– I’m going to defend
Roberts here a little bit– was proportionality. The idea that– I mean a lot–
and Kagan cited in her opinion, in North Carolina, 53% of
the vote went to Republicans, yet they get 10 out of 13
congressional districts. In Maryland, 65% of the vote
was kind of the high water mark for Democrats, and they
get seven out of eight seats. That’s crazy proportionally. I mean, we have an intuitive
sense that proportionality is fair, but there’s certainly
no hook in our constitution that says it’s there. And I think that’s
important to know. So they had a real
problem with that. And then I think, let me give
the counterfactual to Roberts. What would he have done if he
would have written everything that I would have hoped for? All we really would have,
at best, from these cases, is a standard whereby if
you blatantly admit it under oath or in
legislative testimony, that then it’s illegal. And that’s, I mean
for practical purposes of someone trying to solve this
problem in Virginia, that’s not really that helpful,
because they’ll just stop saying it aloud. Right? So I think that’s the way
to think about it broadly. So there’s no judicial
remedy at the federal court level for this. He does, however, much like
the end of The Wizard of Oz, say that you had the
power all along, guys. And says it’s up to the
states and up to Congress– though I don’t think anybody’s
holding their breath for that– up to the states to do that. So here’s what I’ll
leave you with. Arnold Schwarzenegger just
wrote an op-ed with Dave Daley, and said that for the first time
ever, or that they could come up with, a majority of Americans
are living under minority rule. It’s a weird place to be, right? But that’s how good
gerrymandering has gotten. However, in the next round
of redistricting, so in 20– the Congress is
seated in 2023, that is a result of the new
maps from 2021, 2022. A majority of those
congressional representatives will come from states
that had redistricting reform of some kind or another. And I hope Virginia gets it. We passed an
amendment in February. The first read of a
constitutional amendment– we have to– it takes
forever and a day for us to do that in Virginia. So we have to pass
it again next year. So if you are a state
legislative nerd, get your popcorn,
because it’ll be fun. And then we’ll go to the
ballot in November of 2020 for you all to
hopefully vote yes on. So we’re going to fix
this, because we apparently had the power all along. Thanks.

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