Supreme Court

  • December 3, 2015
    Guest Post

    by Daniel Tokaji, Charles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law and Senior Fellow at Election Law @Moritz, The Ohio State University, Moritz College of Law

    On Tuesday, the Supreme Court will hear argument in Evenwel v. Abbott. The subject of the case is the meaning of the “one person, one vote” rule. The appellants argue that the Constitution requires equality of eligible voters among legislative districts. This argument is unlikely to carry the day – in fact, the appellants may well lose unanimously. Evenwel is still an important case, however, because what the Court says will affect how states draw state legislative districts after the next census and possibly even sooner. The hard question isn’t the disposition of Evenwel but rather its implications for the next case.

    The “one person, one vote” rule requires that legislative districts be drawn on the basis of population. Where single-member districts are used, each district must be of approximately equal population. In Reynolds v. Sims, the Supreme Court held that the “one person, one vote” rules applies to state legislative districting. This ended the states’ practice of using districts with very different populations – some with disparities over 40:1 – which generally advantaged rural areas at the expense of urban and suburban areas.

    Reynolds left open the population metric that states can or should use when drawing districts. There are several possible choices. The broadest measure is total population. That’s what Texas uses in drawing its 31 state senate districts, giving each one approximately the same number of people. Total population is also the metric used in the other 49 states, according to the United States’ amicus brief. A narrower basis for drawing districts is the U.S. citizen population (excluding non-citizens). An even narrower metric is the citizen voting age population (excluding those under 18) or, narrower still, the citizen voting eligible population (excluding people ineligible to vote due to felonies or mental incapacity). Counting only eligible voters would have a negative impact on the representation of racial minorities and other communities with large numbers of children, non-citizens, and other non-voters.

  • December 2, 2015
    Guest Post

    by Jason Steed, Associate at Bell Nunnally and president of the ACS Dallas-Ft. Worth Lawyer Chapter

    Class actions are crucial to protecting the rights and interests of workers and consumers. If an employer underpays a worker a few dollars every paycheck—or a credit card company overcharges a consumer a few pennies per transaction—the total loss to that worker or consumer might be only a few hundred dollars. That might be a lot of money to the individual worker or consumer, but it’s not enough to justify hiring an attorney for a lawsuit. Class actions enable dozens or hundreds or even thousands of individuals to bundle their claims into a single lawsuit so workers and consumers can recover the sums they are owed. And the threat of a class action discourages corporations and other entities from adopting schemes that might nickel-and-dime us to death.

    This is why the Supreme Court’s recent decisions undermining class action litigation are of great concern to those who care about the rights and interests of workers and consumers. In 2011, for example, in a case called Wal-Mart Stores v. Dukes, the Supreme Court made it much harder to certify a nationwide class action for employees seeking to recover lost pay due to sexual discrimination. According to the Court’s majority in Dukes (made up of the five most conservative justices), employees can’t bring a class action for sexual discrimination unless they can show that every worker in the proposed class suffered exactly the same sort of bias and discrimination. Statistical sampling isn’t good enough to support the class action. And without the ability to rely on statistical sampling to show commonality among members of the proposed class, large corporations will now be much less likely to face large class actions based on claims of discrimination.

    This Dukes decision looms in the background as the Court considers another important class action case this term. In Tyson Foods, Inc. v. Bouaphakeo, a group of several thousand employees at Tyson Foods brought a class action claiming Tyson failed to pay them sufficient wages for the time they spent donning (putting on) and doffing (taking off) personal protective gear before and after work. To prove the amount of lost wages, the workers relied on statistical sampling—averaging the times that various employees spent donning and doffing their gear. The district court certified the class, a jury returned a verdict of $5.8 million for the employees, and the Eighth Circuit Court of Appeals affirmed this judgment.

  • December 1, 2015
    Guest Post

    by Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia School of Law. His first book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong, was published by Harvard University Press in 2009, and his most recent book, Too Big to Jail: How Prosecutors Compromise with Corporations, was published in 2014.

    Can lawyers stop their own client from challenging his death sentence? Apparently, in Texas, they can. A lawyer’s most fundamental professional obligation is to “zealously” advocate for the client and uphold “justice.” Lawyers cannot give up working on a case, or put their own interests above their client’s. And yet that is what two Texas lawyers appear to have done to death row clients they were appointed to represent.

    Raphael Holiday was just executed in Texas. His two court-appointed lawyers told him that they would no longer contest his execution. “This marks the end of work for your appeals,” they said. They then told Holiday they would not seek clemency from the governor, despite a federal law requiring them to honor the client’s desire to do just that. Facing imminent execution, Holiday told the court, “They have refused to help me and it is a disheartening conundrum I am not fit to comprehend.”

    Holiday, who lacked money to hire his own lawyer, asked for the court to appoint a new one. The lawyers who said they were “not going to file further appeals” for him opposed his request, essentially telling the court that their client had nothing but frivolous claims left. The court-appointed lawyers simply gave up on Holiday’s case, even though half of 2015 Texas executions have been stayed or withdrawn, often because lawyers discovered compelling issues as the execution date approached. Based on the appointed lawyers’ representations, the court refused to assign a new lawyer to the case. Stephen Bright, president of the Southern Center for Human Rights, commented that it was “unconscionable” to prevent Holiday from getting new lawyers and that death penalty lawyers representing clients facing imminent executions “have a duty to make every legal argument they can.”

  • November 25, 2015
    Guest Post

    by B. Jessie Hill, Judge Ben C. Green Professor of Law, Case Western Reserve University School of Law

    What is at stake for reproductive rights in Whole Woman’s Health v. Cole, which will be heard by the U.S. Supreme Court this Term? In a word, everything. Whole Woman’s Health may well be the most significant abortion case in 24 years.

    The Supreme Court established the “undue burden” standard for evaluating the constitutionality of abortion restrictions in 1992 in Planned Parenthood v. Casey. The vagueness of that standard, combined with the Court’s apparent willingness to uphold numerous restrictions in that case, opened the door for states to continually pass new and ever more restrictive regulations on abortion in the decades since Casey was decided. Meanwhile, the Supreme Court has largely declined to speak further on the meaning or scope of the undue burden standard.

    What’s more, states began to try a new kind of restriction – restrictions adopted in the name of protecting women’s health but really aimed at reducing access to abortion. These differed from the sorts of restrictions at issue in Casey, which were primarily laws aimed at affecting the woman’s decision making process, such as waiting periods, parental consent requirements, and informed-consent requirements. Casey was relatively deferential toward measures intended to ensure the woman’s choice was fully informed, but it did not have occasion to consider the sort of pretextual health regulations at issue in Whole Woman’s Health.

    In Whole Woman’s Health, the Court will decide the constitutionality of a Texas law that imposes onerous requirements on abortion providers—namely, that doctors providing abortions have admitting privileges at a local hospital and that abortion clinics conform to the requirements for “ambulatory surgical centers,” including requirements pertaining to the physical plant, staffing, parking, and the like. These requirements are often impossible for older clinics to meet without spending enormous sums of money. Although other types of ambulatory surgery centers—clinics that provide minor surgery on an outpatient basis—are generally offered waivers or grandfathered from when new regulations are instituted, abortion providers are specifically denied grandfathering and waivers.

  • November 18, 2015
    Guest Post

    by Doron M. Kalir, Clinical Professor of Law, Cleveland-Marshall College of Law

    The fact that the Roberts Court is business-friendly is, by now, well documented. It is also no secret that the Court is generally hostile to the once-venerable institution of class actions. And most recently, as The New York Times ably demonstrated, the Court has moved to elevate arbitration as the preferred mode of dispute resolution. The accumulated effect of these three trends has been devastating: Millions of Americans – customers, employees, patients, and investors, among others – are routinely denied their fundamental right to have a day in court. Some call that the privatization of the justice system.

    DIRECTV, Inc. v. Imburgia, a case emerging out of an intermediate state court in California, is another case reflecting these trends. At first sight, it may not seem a likely candidate to become one of the Term’s blockbusters. Allegedly a typical state contract-interpretation case, it looks benign, almost boring to read. Yet it is anything but. It represents nothing short of a last-ditch effort by state courts to shield consumers from these emerging trends. Will it be successful or – as some predict – destined to fail? Only days will tell.

    The facts of the case are somewhat complicated. In 2007, Amy Imburgia contracted with DIRECTV to receive programming services. Predictably, her Customer Agreement contained an arbitration-only, no-class action clause. Unpredictably, it also contained language abolishing that clause should “the law of your state . . . find this agreement to dispense with class action procedures unenforceable.” And that is precisely what happened – the California Supreme Court held such provisions to be “unconscionable” and therefore unenforceable.

    Four years later, in AT&T Mobility v. Concepcion, the U.S. Supreme Court reversed the California rule. Class-action waivers in arbitration agreements, the 5-to-4 decision held, are enforceable, reasoning that the Federal Arbitration Act (FAA) preempts state law. Despite Concepcion, however, the California Court of Appeals ruled in this matter that the individual-only arbitration clause is still unenforceable. Why? The court reasoned that the term “the law of your state,” as included in this particular consumer contract, should not be interpreted to include federal interpretation of that law (the “Supremacy Clause” version), but rather only state law as interpreted by state courts.