Supreme Court

  • March 31, 2015
    Guest Post

    by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    The controversy over Indiana’s recently enacted Religious Freedom Restoration Act shows the importance of context in understanding a law. The bill signed by Indiana Governor Mike Pence is very similar to the federal Religious Freedom Restoration Act (RFRA) and laws that exist in 19 states. But the timing of the enactment of the Indiana law and the rhetoric surrounding it give every reason to believe that it was intended to allow businesses in Indiana to discriminate against gays and lesbians based on claims of religious freedom. Governor Pence reinforced this impression when on Sunday talk shows he repeatedly refused to deny that it would have exactly this effect.

    Governor Pence constantly emphasizes that the Indiana law is much like the federal RFRA signed by President Clinton in 1993. He stresses that nothing within the Indiana law expressly authorizes discrimination against gays and lesbians.

    That is true, but Governor Pence and supporters of the Indiana law are ignoring its context. Why is Indiana adopting the law now, 25 years after Employment Division v. Smith changed the law of the free exercise clause and 22 years after the enactment of the federal RFRA?

    It is clear that Indiana’s goal is to permit businesses to discriminate against gays and lesbians. Last June, in Burwell v. Hobby Lobby, the Supreme Court for the first time held that secular corporations can claim to have a religious conscience and free exercise of religious belief. In fact, the protection of corporations and businesses is much more explicit in the Indiana RFRA than in the federal statute.

    The Indiana RFRA comes soon after the decision of the United States Court of Appeals for the Seventh Circuit declaring unconstitutional the Indiana law prohibiting same-sex marriage and soon before the Supreme Court is likely to recognize a right to marriage equality for gays and lesbians. It is telling that repeatedly in his interviews, Governor Pence refused to deny that the Indiana law would have the effect of permitting businesses to discriminate based on sexual orientation. He also was emphatic that there would be no expansion of rights for gays and lesbians on his “watch.”

    This is why there are loud protests against the Indiana law and calls for boycotts of Indiana. If Indiana does not mean to allow such discrimination based on sexual orientation, it should amend the law to provide that no one can discriminate against others based on race or sex or sexual orientation or religion based on the statute or on the grounds of religious beliefs. 

    Governor Pence has refused to say that he favors such an amendment to the law. He can’t have it both ways:  either the Indiana law was meant to allow discrimination against gays and lesbians and the vehement objections to it are justified, or the law was not meant to permit discrimination gays and lesbians and it should be amended immediately to say this. Discrimination in the form of the refusal to do business with a person because of his or her religion or race or sex or sexual orientation is wrong whether based on religion or anything else. Until Governor Pence and the supporters of the law recognize this and amend the law to say this, the protests and boycotts are justified.

  • March 26, 2015
    Guest Post

    by Sarah Hunger and Meredith Kincaid, Associates at Jones Day.  Jones Day represents The National Association of Black Veterans, Swords to Plowshares, Veterans Defense Project, and The Constitution Project in an amicus brief that the authors filed in support of Mr. Lockhart.  Mr. Lockhart is represented by Equal Justice Initiative.

    In 2010, an Alabama jury voted unanimously to spare the life of Courtney Lockhart, an Iraq war veteran facing the death penalty for a murder he committed while suffering from combat-related mental health issues.  Several months later, and upon consideration of evidence never shown to the jury, the elected judge overseeing Mr. Lockhart’s case sentenced him to death.

    In Alabama, the jury’s role at capital sentencing is merely advisory, and the imposition of the death penalty hinges upon specific, written findings of fact made by elected judges.  Under this regime, Alabama courts are empowered to make these factual findings “based upon information known only to the trial court and not to the jury.”  Adhering to this doctrine, Mr. Lockhart’s sentencing judge overrode the jury’s unanimous recommendation of life based upon information never presented to the jury, including evidence deemed inadmissible in a suppression hearing.

    In January, Mr. Lockhart filed a petition for certiorari to the Supreme Court arguing that his death sentence, as well as the Alabama regime that authorizes it, violates the Sixth and Eighth Amendments.  The Supreme Court’s review of this important and recurring issue is long overdue.  In the past decade, at least 28% of death row inmates in Alabama were sentenced via judicial override, and more than 100 inmates now sit on death row because of its use.  Nevertheless, the Supreme Court has not reviewed Alabama’s death penalty regime since 1995, well before it announced in Apprendi that the Sixth Amendment precludes judges from making findings that authorize an increase in the maximum punishment.

    Most notably, as Mr. Lockhart and amici assert, judicial override as practiced in Alabama deprives defendants of their Sixth Amendment right to trial by jury by making the heightened punishment of death dependent upon judicially found facts.  This means, in other words, that Alabama defendants are not eligible for the death penalty until the trial judge makes sufficient findings of fact to support it – a remarkably clear-cut Apprendi violation.  Alabama’s death penalty regime, which gives judges the unilateral power to impose death sentences on individuals that juries have voted to spare, should no longer go unchecked.  The Court should grant Mr. Lockhart’s pending petition.

  • March 11, 2015
    Guest Post

    by Raph Graybill, Fellow, Yale Institution for Social and Policy Studies (ISPS)

    This spring, western state legislatures will consider a series of laws demanding the end of public land management by the federal government.  The bills, which evoke the “Sagebrush Rebellion” anti-conservation movement of the 1970s, issue a state-law “demand” that the United States relinquish its title to American public lands and transfer ownership to states.

    Nearly two years after Utah passed its “Transfer of Public Lands Act” (TPLA), similar laws are under consideration in a majority of western states.  At stake is the core of American conservation policy.  Under state ownership, state governments could restrict public access, authorize commercial development or even divide lands for private sale.  Current federal environmental law effectively forecloses these possibilities, limiting privatization and preventing environmental degradation.

    Other outlets have addressed the policy wisdom of transfer demand laws, but very little work has been devoted to understanding their constitutional validity.  This post will address the legal arguments behind transfer demands with an eye toward understanding both the Constitution’s text and a newer, nontextual argument advanced by supporters.

    A legal analysis of transfer demands begins with the Constitution itself, and the plain text of the Constitution speaks directly to transfer demand laws.  The Property Clause, Article IV, § 3, cl. 2, states, “The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.”  The text leaves little room for ambiguity over who may make decisions affecting United States land: Only Congress may initiate the sale or transfer of federal public lands.

  • March 4, 2015

    by Jeremy Leaming

    Following oral argument in the latest effort to topple the Affordable Care Act, SCOTUSblog’s Lyle Denniston says a major part of the private discussions among Supreme Court justices will center on the harm they could do to the nation’s health care system if a majority buys the challengers’ argument in King v. Burwell.

    ACS President Caroline Fredrickson on MSNBC’s “The Cycle,” tore into the challengers’ statutory based argument, saying it strays far from precedent on statutory interpretation.

    Fredrickson, discussing a federalism-based question from Justice Anthony Kennedy during the March 4 oral arguments, said it would be absurd to believe Congress placed into the health care legislation a “ticking time-bomb,” which would strip tax support from large numbers of the currently insured in an effort to coerce 34 states to set up their own exchanges.

    Instead Fredrickson argued that the justices should look at the text within its context. This is basic statutory interpretation learned early in law school, she said.

    See video of “The Cycle," below:

     

  • February 26, 2015
    Guest Post

    by Eric J. Segall, the Kathy and Lawrence Ashe Professor of Law, Georgia State University College of Law

    *This post is part of the ACSblog King v. Burwell symposium.

    The plaintiffs in the latest Obamacare case, King v. Burwell, to be argued next Wednesday in the Supreme Court, have (so far) pulled off an amazing magic trick right in front of the eyes of the American people and possibly the Supreme Court of the United States. They, along with Professor Jonathan Adler, the architect of the litigation strategy, have focused their audiences’ attention on one part of a 900 page law that, read in isolation, supports their case while masterfully diverting the audience’s attention away from the part of the law that shows why their claims have no merit. They have crated this illusion not simply by focusing on one specific statutory provision (as others have shown), but based on the order in which they have asked the Court to interpret the statutory provisions at issue. This may seem too obvious but the best magic tricks are often based on a single instance of substantial misdirection.

    The plaintiffs and Professor Adler tell the following story: They start with Section 1311 of the Affordable Care Act (“ACA”) and argue that it requires “qualified individuals” eligible for federal health insurance subsidies to purchase their insurance from an “exchange established by the state.” The federal government is not a “state,” they argue (persuasively) and therefore the plain text of Section 1311 forbids subsidies on federal exchanges. That common-sense interpretation, they claim, can only be overcome if the result is absurd. They argue that it is not absurd, and thus the plaintiffs have to win.

    This discussion of the issue, set up by the plaintiffs, and their lawyers and allies through lower court briefs, social media, and newspaper op-eds, while successful at putting the government on the defensive, is wildly out of touch with the true legal nature of the case.

    The question whether the Secretary of the IRS exceeded his legal authority by interpreting the ACA to allow subsidies on federal exchanges starts, not with Section 1311 as the plaintiffs would have you believe, but instead with the  section of the law actually relied on by the Secretary for that authority--Section 1321.  If we start there, with that baseline, it is easy to see why the plaintiffs’ claims have no merit.