Supreme Court

  • December 11, 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. Chemerinsky is author of The Case Against the Supreme Court (Viking, 2014).

    Bush v. Gore was clearly wrong when it was decided 15 years ago and a decade and a half make it look only worse. The decision is the epitome of conservative judicial activism, which in this instance had the Supreme Court for the first time in history deciding the outcome of a presidential election.

    The presidential election of Tuesday, November 7, 2000, was one of the closest in American history. By early Wednesday morning it was clear that the Democratic candidate, Vice President Al Gore, won the national popular vote but that the outcome of the electoral vote was uncertain. The presidency turned on Florida and its 25 electoral votes.

    On Sunday night, November 26, the Florida Elections Canvassing Commission certified the election results: Bush was determined to be the winner of Florida by 537 votes and thus the winner of Florida’s 25 electoral votes. On Monday, November 27, Gore filed suit in Florida under the Florida law providing for “contests” of election results.

    On Monday, December 4, the Florida trial court ruled against Gore on the grounds that Gore failed to prove a “reasonable probability” that the election would have turned out differently if not for problems in counting ballots.

    The Florida Supreme Court granted review and on Friday afternoon, December 8, the Florida Supreme Court, by a 4-to-3 decision, reversed the trial court. The Florida Supreme Court ruled that the trial court had used the wrong standard in insisting that Gore demonstrate a “reasonable probability” that the election would have been decided differently. The Florida Supreme Court said that the statute requires only a showing of “[r]eceipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election.”

    The Florida Supreme Court ordered the counting of all uncounted votes. On Friday night, December 8, a Florida trial court judge, Terry Lewis, ordered that the counting of the uncounted votes commence the next morning and that it be completed by Sunday afternoon, December 10, at 2:00 p.m. The judge said that he would resolve any disputes.

    On Saturday morning, the Supreme Court granted Bush’s petition for certiorari and stayed the counting of the uncounted ballots. On Monday, December 11, the United States Supreme Court held oral arguments. On Tuesday night, December 12, at approximately 10:00 p.m., Eastern standard time, the Court released its opinion in Bush v. Gore. In a per curium opinion joined by five of the Justices, the Supreme Court ruled 5-4 that counting the uncounted ballots without standards denies equal protection and that counting could not continue because Florida wished to choose its electors by the December 12 “safe harbor” date set by federal law. The per curium opinion was joined by Chief Justice Rehnquist and Justices O’Connor, Scalia, Kennedy, and Thomas. Additionally, Chief Justice Rehnquist wrote an opinion concurring in the judgment, which was joined by Justices Scalia and Thomas, arguing that the Florida Supreme Court had impermissibly changed Florida’s election law in a manner that violates federal law. Each of the other four Justices – Stevens, Souter, Ginsburg, and Breyer -- wrote dissenting opinions.

  • December 10, 2015
    Guest Post

    by William G. Merkel, Associate Professor of Law, Charleston School of Law

    This week, the Supreme Court declined to hear the case of Friedman v. Highland Park. By denying Friedman’s petition for a writ of certiorari, the Court let stand the moderate and sensible opinion of Seventh Circuit Judge Frank Easterbrook upholding Highland Park’s assault weapons ban against a Second Amendment challenge. The announcement prompted a vigorous dissent by Justice Thomas (joined by Justice Scalia).

    Seventy-five years ago, Justice Frankfurter cautioned against reading too much into Supreme Court decisions to deny cert and, in particular, against assuming that the failure of particular justices to join a written dissent indicated agreement that the case should not be heard or that the decision below was correct. But Monday’s decision has been much discussed these past few days among Supreme Court watchers and political pundits. It counts as a very big deal among gun rights enthusiasts and gun rights skeptics who have been vigorously litigating, lobbying and politicking all questions related to gun control and gun rights since the Supreme Court first enforced a Second Amendment right in District of Columbia v. Heller in 2008.

    That case, and Justice Scalia’s opinion for a 5-4 majority, recognized (or, as some naysayers would have it, invented) a right to have operable handguns in the home for purposes of self-defense. But Scalia’s Heller opinion did much more. It also stated that the Second Amendment right rests in the ability to keep and bear arms for purposes of confrontation and then proceeded to list (without any explanation) various types of presumptively valid regulations and restrictions, including prohibition on possession by felons and the mentally ill, exclusion of guns from certain sensitive places such as schools and government buildings, and barring possession of uncommon or dangerous weapons. The Heller decision was extended to reach gun restrictions enforced by states and municipalities in McDonald v. City of Chicago in 2010. The McDonald plurality, per Justice Alito, expressly endorsed Justice Scalia’s definition of the right and his list of presumptively valid regulations in Heller. In sum, Heller and McDonald were seen as victories for champions of gun rights because they announced that the Second Amendment right was judicially enforceable, applicable to individuals in contexts wholly unrelated to militia service, and binding on all levels of government. But the two decisions left open more questions than they answered, and the adjudication of those open questions in the lower federal courts over the past few years has provided grounds for considerable optimism to citizens and politicians favoring gun regulation.

  • 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.”