Re-thinking Procedure And How It Is Taught

Next month our book, Pretrial Advocacy (National Institute for Trial Advocacy/Wolters Kluwer) will be in print. Not surprisingly, the process of reducing to written word what can best be described as the culture of the pretrial process has caused us to rethink pretrial advocacy and how it is taught.

Cases today are front-loaded—counsel can no longer rely on discovery to make the case.

The pleading standard articulated in Iqbal and Twombly has forced plaintiffs to be more diligent in case investigation, assembling facts, and alleging a cause of action that is plausible to even a judge with perhaps a gimlet eye view of a plaintiff’s grievance. Of course, the word “facts” refers to pure facts and not things that look like facts but are really conclusions as in the difference between saying “Saturday was a wonderful day,” and “Saturday was the day I won the lottery and will receive $20 million.”

While those putting cases together view the rules of evidence as a lesson for another day, the opposite is better practice. Appreciating that FRE 401 does not distinguish between circumstantial and direct evidence opens a new world of collecting the bits of facts we call circumstantial evidence and building cases out of tiny nuggets of information. And if one begins to apply the rules of evidence to information collected at the complaint development stage, counsel will be better prepared for trial and more focused on how to fill the information gaps through discovery.

Understanding the difference between facts and conclusions is, of course, essential to witness interviews. Humans gather facts and wrap them up in conclusions, but many times the conclusion is not accurate. Consider the witness who is asked, “How was your Saturday?” and answers, “It was lovely.” But a factual inquiry - as in “tell me everything you did on Saturday from the moment you woke up”- might lead to the response: “I got dressed to go to my best friend’s funeral.”

Of course, the pretrial process is not just about how we deal with witnesses, but also how we deal with judges, opposing counsel, and co-counsel. Law schools sort of teach this under the rubric of “professionalism.” The takeaway for law students is that professionalism is some sort of “code of honor.” Perhaps, lawyers honor that “code” just because they do. Yet, professionalism is also about efficiency. Treat those around you with decency and integrity because sooner or later you will need their help in resolving the case and to do otherwise makes you - as a lawyer - the impediment. Be honest with the court and others around you because an honest advocate is a more credible advocate—a more powerful advocate.

There is a human element to all of this. The rule of law is not a process developed and implemented by robots or machines. Our research found multiple examples of where humans - sitting as judges - wrote opinions citing Dr. Seuss and movies like "My Cousin Vinny" - perhaps because these jurists understood that the law regulates humans. Hence, it must be understood by laymen.

The beauty of our legal system is that, on any given day, an individual without means and even represented by a young inexperienced lawyer (only because more experienced practitioners would have nothing to do with the case), can change the playing field for countless others. Our legal history is replete with these cases.

While the law is about the human experience, somewhere along the way we began teaching law as if humans were an afterthought. Most law schools do not equally value faculty for their work in the courtroom or with clients. Those who partake in what is perceived as pure scholarship frequently are rewarded with higher salaries, more prestigious titles, and more control over the law school curriculum. We have seen a rise in scholars relying on empirical data which can be a good thing; but could that also mean that some scholars are relying on empirical data because they lack hands on legal experience?

Our teaching has also become wedded to norms; some of which need improvement. We teach legal writing but assume, in an age of Twitter and emojis, the average college graduate is a master of the written word or - as the late New York Times sportswriter, Red Smith might say, mastered the art of making the words behave on a page even if the rules of grammar are somewhat foreign. Legal writing programs also require students to synthesize a set of facts and apply them to the law. Yet, most programs do not even introduce the concept of evidence as the lens for choosing relevant facts.

We teach procedure and evidence in isolation even though the rules at times reference one another. And nowhere do we remind students that judges are humans, and the art of lawyering is to master an area of fact and law and explain it to someone who has a docket of hundreds of cases.

In teaching the rules of procedure and evidence we somehow neglect FRE 102 and FRCP 1 which implore interpreting the rules in the interest of fairness and efficiency. In failing to do so, we neglect an opportunity to teach students the art of helping judges solve procedural problems. This can help cases move more efficiently. For example, “Your Honor, I understand the court’s concerns, may I propose a solution?”

To think about the legal process and how it can be used is exciting. To think about how teaching can be improved so others can represent the countless individuals who need representation is empowering.

In our lifetime it was once a challenge for a lawyer without clerical staff or an office with a law library to compete with the well-heeled counsel -- times have changed and these barriers to practice no longer exist. We just need to do a better job of training lawyers who now - more than ever - have an opportunity to go forth and make a difference.

It’s Time to Tear Up the Executive Branch’s Blank Check

This piece was originally published by the Brennan Center for Justice as part of its series, "9/11 at 20."

The 20 years since 9/11 have seen sweeping changes to how we think about national security and go about protecting it. Some of the changes, like increased intelligence sharing among executive branch agencies, are positive. But others have had a detrimental impact on civil rights and the separation of powers. One of the less conspicuous but more consequential changes is the near monopolization of national security by the executive branch.

The Constitution explicitly grants the legislative branch the power to declare war, raise and support armies, suspend habeas corpus in times of invasion or rebellion, “provide for the common defence and general welfare of the United States,” and “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” These provisions envision a prominent role for Congress in all aspects of national security. And yet, Congress has ceded much of its power to the executive.

Since 9/11, Congress has repeatedly expanded the executive’s authorities by delegating its own powers through legislation and then acquiesced to the executive stretching the limits of those authorities beyond recognition. Put simply, Congress too often has become more spectator than participant in our country’s national security, to the detriment of both institutions.

A prime example is Congress’s rushed passage of the Patriot Act. The law amended 15 existing federal statutes, broadened the definition of terrorism, and laid the groundwork for our modern surveillance state. It was impossible to fully understand the ramifications of this far-reaching legislation in just two weeks, and yet the House passed it anyway with a vote of 357 to 66, and the Senate with an overwhelming vote of 98 to 1, myself the lone dissenter.

At the time, I cautioned that the law “contained vast new powers for law enforcement, some seemingly drafted in haste and others that came from the FBI’s wish list that Congress has rejected in the past.” The Patriot Act did not just expand executive powers by authorizing widespread wiretapping, increasing the scope of search warrants and subpoenas, and emboldening the worst tendencies of overzealous law enforcement. It did so in a way that the executive had wanted for some time, with 9/11 finally providing the apparent urgency needed to secure congressional acquiescence.

In the two decades since its passage, the Patriot Act has become a symbol of the massive expansion of government surveillance post-9/11 and has led to international rebuke over executive overreach. Although some changes to the law have been made during its three subsequent reauthorizations, Congress has done too little to change the overall balance between surveillance and civil rights, consistently deferring to executive branch assessments of the country’s national security needs.

As with surveillance, Congress has also largely abdicated its role in controlling the use of military force. The 2001 Authorization for the Use of Military Force (AUMF) grants the president the authority to use all “necessary and appropriate force” against those whom he determined “planned, authorized, committed or aided” the September 11 attacks, or who harbored said persons or groups. But since then, Congress has stood idly by as the executive turned the law into a catchall for anything remotely related to counterterrorism. And until recently, Congress did little to push back on presidential war-making unauthorized by any law, such as military operations in Libya and Syria and the targeted killing of an Iranian official.

Emergency powers are another area of concern. Through the National Emergencies Act of 1976, Congress gave the president nearly unlimited discretion to declare a national emergency and access sweeping statutory powers. The law originally allowed Congress to terminate emergency declarations through a “legislative veto” — a bicameral congressional resolution that nullifies executive action and cannot be vetoed. But shortly after the law’s passage, the Supreme Court ruled in INS v. Chadha that legislative vetoes are unconstitutional. That leaves in place a vast delegation of extraordinary power with no meaningful checks to protect against abuse. While this problem began before 9/11, it has only intensified since.

The executive’s monopolization of national security is compounded by Congress’s parallel abandonment of its oversight responsibilities. It is one thing to give the executive authority and another to do so with no meaningful oversight for the misuse or overreach of that authority. While courts can provide case-specific oversight, the entity with the capacity and requisite access to classified information to consistently and substantively keep watch over the executive’s national security agenda is the first branch of government: Congress.

There are examples of Congress fulfilling its oversight responsibilities. The Senate Select Committee on Intelligence, for instance, did an admirable job investigating and reporting on the CIA’s Detention and Interrogation Program, once Congress finally overcame executive branch efforts to withhold the Torture Memos. This type of investigation, however, has been the exception rather than the rule over the past 20 years.

As national security becomes more and more defined by prolonged and amorphous fights against international terrorism, domestic extremism, and cyber warfare, it is particularly important to reestablish Congress’s role as a coequal branch of government with shared responsibility for our country’s national security.

At the most basic level, Congress should stop delegating and start legislating. The words “national security” should not be a trigger to grant unfettered discretion to the executive. Indeed, the potential impact of national security policies on Americans’ civil liberties makes it all the more important for Congress to craft careful safeguards. This will require Congress to amend existing laws, taking back some of the powers it gave away — as in the case of the Patriot Act and the National Emergencies Act.

This might seem impossible in a time where politicians’ loyalty to party seems to override loyalty to their branch of government. But national security is one of the only areas in which Congress has begun to show some signs of bipartisan pushback against the executive. In the last Congress, both the Republican-controlled Senate and the Democratic-controlled House voted to terminate the border wall emergency declaration, stop arms sales to Saudi Arabia, end our support for hostilities in Yemen, and limit military operations against Iran. Congress was unable to overcome President Trump’s vetoes of these measures, but they nonetheless show promise for an institutional reassertion of power. So does the fact that 49 House Republicans recently joined nearly all Democrats in voting to repeal the 2002 Iraq AUMF.

Moreover, short of passing, amending, or repealing legislation, Congress has an ample toolbox for restoring its constitutional prerogative in the national security sphere. First, Congress holds the purse strings, appropriating every dollar that executive agencies spend. That funding can be withheld, including for certain programs or agencies if executive officials refuse to cooperate with congressional oversight or abuse the authorities given to them by Congress.

Second, the Senate can block the confirmation of executive nominees, of which there is generally a steady stream throughout the tenure of an administration. This might be particularly useful when agencies are trying to withhold documents from congressional review. While these practices should not become the norm, Congress should certainly make use of such tools when necessary.

Third, Congress could establish specific rules for votes on national security matters — for instance, requiring that national security votes be preceded by a minimum amount of debate and deliberation, not unlike the rules adopted for the past two impeachment hearings. This could prevent votes, like those on the Patriot Act, that are rushed in the immediate wake of a crisis without proper consideration of their consequences.

The anniversary of 9/11 is an opportunity to take stock of the growing imbalance in power between the political branches. The Constitution envisions Congress having a robust role in all matters of war and peace, and our democracy depends on checks and balances being more than just symbolic. Congress can and must ensure our national security establishment has the authorities it needs while also imposing proper guardrails and conducting rigorous oversight.

This piece was originally published by the Brennan Center. 

The Specter of Dictatorship and the Supreme Court’s Embrace of the Unitary Executive Theory

Democrats may have rejoiced at President Biden’s decision to remove Trump holdover Andrew Saul as the Commissioner of the Social Security Administration. But they should think twice about the long-term effects of claiming a constitutional power to fire a commissioner appointed to a six-year term without invoking the statutory provision allowing for-cause removal.

My book, The Specter of Dictatorship: Judicial Enabling of Presidential Power, explains that the unitary executive theory, which embraces presidential removal of agency heads for political reasons, provides a pathway to autocracy. The Supreme Court, however, has not taken the risk of losing democracy into account in its recent decisions approving the theory. We remain at risk of permanently losing our democracy, and the Court must consider how unrestrained removal authority can be abused in future cases, even if President Biden’s use of it appears reasonable.

The Framers and Ratifiers of the United States Constitution unanimously embraced the goal of establishing a permanent Republican government. Many of the debates on the Constitution revolved around figuring out how to use government structure to avoid autocracy— “despotism” in the language of the period. The Constitution contains only one removal provision, and it authorizes the Senate to remove the President and other government officials after impeachment by the House, not presidential removal. Accordingly, Alexander Hamilton opined in the Federalist Papers that removal of officers requires the consent of the Senate. He explained that the Constitution sought to prevent appointment of “obsequious instruments” of presidential “pleasure.” The Constitution sought to substitute loyalty to the law and the Constitution for loyalty to the head of state by requiring all officers of the government to swear an oath to protect and defend the Constitution.

Yet, the Supreme Court has embraced the unitary executive theory, which maintains that the President has sole control over the executive branch of government. In Seila Law LLC v. Consumer Financial Protection Bureu (CFPB), the Court held that the Constitution gives the President the power to fire the sole director of the CFPB for political reasons and that a statute only authorizing for-cause removal was unconstitutional. The Court opined that this power to fire officials arbitrarily helped the President “take care that the laws be faithfully executed.”

The Seila Law Court, however, stopped short of overruling precedent accepting for-cause removal protection for members of independent multimember commissions performing quasi-legislative and quasi-judicial functions. At the same time, it eroded that precedent by only endorsing commission independence when the commission performs no executive functions. Just last month, however, the Court may have further undermined that earlier precedent in Collins v. Yellen, by declaring the nature of the power an agency exercised irrelevant to the constitutionality of for-cause removal protection.

The litigation of these cases took place during a period when President Trump was using his removal authority not to secure faithful law execution but to undermine the rule of law and tilt the electoral playing field in his favor. President Trump, for example, fired the head of the Department of Homeland Security and most of its component agencies in part to establish immigration policies that defied U.S. law protecting asylum seekers. Trump fired Inspector General Atkinson precisely because he obeyed the law requiring communication of whistleblower complaints to Congress and made it clear he would fire people who testified truthfully about the President’s efforts to pressure Ukraine’s government into announcing an investigation of President Biden’s son—Hunter Biden.

Neither the majority nor the dissent in Seila Law and Yellen, however, discuss how a President can use unlimited removal authority to undermine the rule of law and democracy. This is a rather shocking omission in light of the weaponizing of removal during the Trump administration as a tool for that very purpose.

The Specter of Dictatorship shows that elected authoritarians around the globe have used centralization of the chief executive officer’s control over the executive branch of government to destroy democratic governments—relying principally on case studies of democratic erosion in Turkey, Hungary, and Poland. Like most democratic governments, these governments embraced independent (or multiparty) prosecutors, media regulators, and electoral commissions before electing an autocrat to the top post. After an autocrat came to power, however, these governments amended their Constitutions or passed legislation creating governments like those that the unitary executive theory points to—allowing the chief executive to remove incumbents and people critical of government policies with his supporters.

The prosecution service, once brought under the chief executive’s control, protects the ruling party’s supporters and persecutes its opponents. Trump’s efforts to secure announcement of corruption investigations against political opponents emulated a tactic of Hungarian strongman Viktor Orbán, whose prosecution service announces corruption investigations prior to elections only to quietly drop the charges afterwards to avoid embarrassing judicial reversal. Partisan takeover of electoral commissions allows the autocrat to tilt the electoral playing field through gerrymandering and efforts to burden voting by opposition groups. Thus, even though elections take place regularly in “new autocracies” like Hungary and Turkey, the autocrat and his party become quite entrenched. Parochial Americans look at the Republicans’ new election bills as a revival of Jim Crow, but the provisions authorizing legislative takeover of electoral commissions and the increasingly precise and suffocating gerrymandering have much in common with the techniques elected autocrats use to remain in power for very long periods without clear majority support. Finally, the new autocracies weaken opposition media and strengthen supportive media through economic pressures and licensing, although Turkey has supplemented these tactics with jailing of opposition journalists in recent years. In Hungary, the economic and licensing pressures alone destroyed most of the opposition media.

The Supreme Court’s unitary executive jurisprudence may accomplish through judicial fiat what elected autocrats abroad achieved through the more democratic processes of legislative actions and referenda reshaping the Constitution—a freeing of the chief executive from checks and balances constraining his power. In the United States, tradition rather than constitutional structure most robustly supports prosecutorial independence. The Court’s jurisprudence already makes it impossible to fully adopt Cass Sunstein’s suggestion that Congress make the DOJ independent to safeguard us from the sorts of abuses witnessed during the Trump administration. The federal media and election regulators, the FEC and the FCC, are independent agencies. The Court’s signals in Seila Law and Collins suggest that the Court will at some future date considering ending their independence. Doing so would clear the way for a President to use these agencies to attempt to throttle opposition media and strengthen the current drive to make elections unfair.

The problem, however, proves broader. A President with autocratic tendencies can use just about any government power to reward his friends and punish his enemies. President Trump showed this on numerous occasions. For example, he pushed the Pentagon not to give Washington Post owner Jeff Bezos’ Amazon a cloud computing contract and suggested that Governors must not criticize him if they wanted to get federal assistance to fight COVID-19. The ability to arbitrarily fire government officials supports that kind of abuse.

The Court will have occasions in the future to consider whether to extend or curtail its dangerous endorsement of the idea that the President must have a political removal authority so that government officials “fear and obey” the President. The Court has gone far in Seila Law and Collins to relax justiciability barriers to private challenges to the internal checks and balances that help hold a Democracy together. In both cases, no case or controversy existed because the government did not defend the constitutionality of the federal statutes involved and the President had not removed the agency director. The Court appointed an amicus to defend the statutes providing for-cause removal protection for agency heads and heard the cases anyway. In Collins, the Court blew past statutory prohibitions of lawsuits by shareholders in Fannie Mae and Freddi Mac, using a logic that gives every citizen in the country a potential right to challenge the independence of government agencies.

If the Court is to remain true to the Founders cherished goal of establishing a permanent Republic, it must consider the potential of a unitary executive to be an autocratic executive. While Biden’s removal of Commissioner Saul seems consistent with the rule of law. We may remain one lost or stolen election away from losing our democracy permanently through the usual process—abuse of removal authority to destroy the rule of law.

Reclaiming EEOC's Mission

When Congress created the Equal Employment Opportunity Commission (EEOC), it declared that the purpose of the agency was to “prevent any person from engaging in any unlawful employment practice” prohibited by Title VII of the Civil Rights Act of 1964. The EEOC similarly states on its website that its mission is “to prevent and remedy unlawful employment discrimination and advance equal opportunity for all in the workplace.”

During the waning  weeks and months of the Trump administration, the EEOC adopted a number of policies that undermined the agency’s mission and impeded its ability to enforce Title VII, the Equal Pay Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Genetic Information Nondiscrimination Act. Upon taking office in January 2021, President Biden replaced the Trump-appointed Chair and Vice Chair of the Commission with his own appointees, thus transferring administrative control of the agency to them. The EEOC’s new leadership, the Biden administration, and Congress have taken steps to reverse some of the Trump-era damage and return the agency to its original mission, including reinstating EEOC’s statutorily mandated obligation to share EEO-1 data with state and local fair employment practice agencies; revoking an executive order that effectively prohibited federal agencies, contractors, and grantees from conducting meaningful diversity, equity, and inclusion training; and repealing a regulation that severely limited EEOC’s ability to conciliate cases.

Much, however, remains to be done. Even though the five-member Commission now has new leadership, its majority remains in the hands of three Trump appointees, and it will stay that way until at least July 2022 unless one of those Commissioners decides to leave before the expiration of his or her term. For now, therefore, the Commission likely will be unable to make major changes in policy, such as adopting, repealing, or revising existing guidance documents or regulations. When a new majority is finally in place, the Commission can take a number of steps to rebuild and strengthen the agency’s ability to accomplish its mission, including:

  • Reinstituting the Collection of Pay Data. In 2016, after years of consideration and collaboration with the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) as well as a study by the National Academy of Sciences, the EEOC adopted, and the Office of Management and Budget (OMB) approved, a requirement that employers report summary earnings data for their employees by sex, race, ethnicity, and job category (EEO-1 Component 2 Report). In August 2017, however, the Trump OMB stayed the Component 2 pay data collection, and the Trump EEOC then discontinued the collection. Subsequent court decisions held that the EEOC and OMB had violated the Administrative Procedure Act (APA) when they suspended the data collection. The court vacated OMB’s stay, reinstated OMB’s previous approval, and ordered the EEOC to collect the Component 2 data for 2017 and 2018. In 2020, however, OMB approved EEOC’s request to abandon the collection of Component 2 pay data.  As soon as it is in a position to do so, the Commission should seek OMB approval to resume the collection of pay data that will enable it to analyze and investigate patterns of compensation discrimination.
  • Revising the EEOC’s New Compliance Manual Section on Religious Discrimination. After the November 2020 election but before President Biden took office, the EEOC majority under its prior leadership swiftly proposed and then approved a sweeping revision of Section 12 of the EEOC Compliance Manual, which covers religious discrimination. Unlike the previous Section 12, which had been in effect since 2008, the new Section 12 contains a number of provisions that are designed not to protect workers from discrimination based on their religious beliefs and practices, but rather to enhance the ability of employers to discriminate against workers based on the employers’ professed religious beliefs. (The Trump OFCCP, also after the election, issued a similar rule that allows federal contractors, including for-profit corporations, to discriminate against workers based on the contractors’ professed religious beliefs.) For example, new Section 12 of the EEOC’s Compliance Manual indicates that for-profit corporations may qualify for Title VII’s religious organization exemption; that religious organizations may discriminate in favor of employees who share their employer’s religious observances, practices, or beliefs; that religious employers may be permitted to engage in sexual and racial harassment as well as other discriminatory practices; that the “ministerial exception” previously created by the Supreme Court may deprive many religious organization employees of any protections under the antidiscrimination laws; and that the First Amendment and the Religious Freedom Restoration Act may provide private employers with defenses against claims of religious discrimination and failure to accommodate employees’ religious beliefs and practices. As soon as it is in a position to do so, the Commission should revise Section 12 to bring it back into line with the purpose of Title VII, which is to protect workers from discrimination.
  • Extending Employer Recordkeeping Requirements from One to Three Years. Federal antidiscrimination statutes require employers to make records relevant to allegations of unlawful employment practices, and to “preserve such records for such periods … as the [EEOC] shall prescribe by regulation or order ….” EEOC regulations implementing Title VII, the ADA, and GINA, in effect since 1991, require the preservation of “any personnel or employment record made or kept by an employer … for a period of one year from the date of the making of the record or the personnel action involved, whichever occurs later,” or “for a period of one year from the date of termination.” In many cases, this one-year period is not long enough to provide EEOC investigators (and plaintiffs in subsequent litigation) with sufficient information to get a full picture of the employer’s treatment of the charging party and any relevant class over time or to make meaningful comparisons with the treatment of other similarly situated employees. (EEOC’s ADEA regulations require employers to make and keep payroll and certain other records for a period of three years, but other personnel and employment records are required to be kept only “for a period of 1 year from the date of the personnel action to which any records relate.”) As soon as it is in a position to do so, the Commission should amend its regulations to require employers to maintain certain specified records (as set forth in the ADEA regulations) as well as all other records ordinarily made and kept by the employer (as set forth in the Title VII-ADA-GINA regulations) for a uniform three-year period so that EEOC investigators will have access to more complete information.
  • Returning to the EEOC’s Previous Delegation of Litigation Authority to the General Counsel and Regional Attorneys. For many years prior to the previous administration, the Commission had broadly delegated to the General Counsel the authority to commence or intervene in litigation in most cases, reserving that decision to the Commission itself only in limited circumstances such as cases involving a major expenditure of agency resources, a developing area of the law, or a likelihood of public controversy. This delegation, which included granting the General Counsel the ability to redelegate litigation authority to Regional Attorneys, allowed EEOC’s litigation program to proceed without excessive bureaucratic delays and undue political influence. In the last several months of the Trump administration, however, the Commission dramatically curtailed the General Counsel’s litigation authority and required Commission approval in far more cases. And in January 2021 – a few days before President Biden’s inauguration and his appointment of new EEOC leadership –the Commission imposed additional restrictions that have the effect of (1) subjecting all cases to a full Commission vote if the majority wishes to hold such a vote and (2) eliminating the General Counsel’s ability to redelegate to Regional Attorneys the authority to commence any litigation. As soon as it is in a position to do so, the Commission should review its litigation delegation policies and restore an appropriate balance that will allow the General Counsel and Regional Attorneys to perform their appropriate law enforcement functions without excessive delays or undue political intervention by the Commission.
  • Implementing the EEOC’s Strategic Enforcement Plan. The EEOC’s Strategic Enforcement Plan (SEP) for Fiscal Years 2017-2021, adopted by a bipartisan vote of the Commission, remains on the books. The SEP lists the following national substantive area priorities: (1) Eliminating barriers in recruitment and hiring; (2) Protecting vulnerable workers, including immigrant and migrant workers and underserved communities; (3) Addressing selected emerging and developing issues; (4) Ensuring equal pay protections for all workers; (5) Preserving access to the legal system; and (6) Preventing systemic harassment. The Commission should be developing technical assistance, guidance, and regulations – and pursuing litigation – designed to advance, rather than frustrate, these priorities. For example, the Commission should be protecting immigrant workers from employment discrimination (Priority 2); should be solidifying Title VII’s LGBTQ protections recognized in Bostock v. Clayton County, (Priority 3(c)); and should be protecting employees from retaliation, including human resources employees who report discriminatory practices (Priority 5(3)).

In the coming months and years, the EEOC will have the chance to repair some of the damage done during the Trump administration. The agency should take advantage of that chance and begin to reclaim its mission of preventing discrimination and advancing equal opportunity in America’s workplace.

Patrick Patterson served as the Deputy Director, Office of Federal Contract Compliance Programs, U.S. Department of Labor from 2014-2017. He also was the former Senior Counsel to the Chair, U.S. Equal Employment Opportunity Commission from 2010-2014.

 

Disconnected Decision from Supreme Court Leaves the Real Work to Voters and Congress

The U.S. Supreme Court’s shameful ruling in Brnovich v. Democratic National Committee drove home the fact that the Court is far removed from the needs of voters, and isn’t interested in ensuring democracy works for all, particularly for Latino, Native American, and Black voters in Arizona communities. The Court missed an opportunity to protect the freedom to vote at a critical moment in our history. Instead, six justices further damaged important protections Congress put in place to ensure that everyone has equal access to the ballot box. Today’s decision acknowledged the inequitable burden on Latino and Native American communities created by discriminatory laws. Ultimately, though, the Court didn’t think that burden mattered and upheld two discriminatory Arizona laws, which had previously been invalidated. 

But it does matter here in Arizona, where the dire state of our democracy often feels disconnected from the national chatter in Washington, D.C. This year so far, the Arizona legislature has passed three serious anti-voter bills, SB1485, SB1003, and HB2569, already signed into law by Governor Doug Ducey, as well as two more, SB1819 and SB1823, passed days before the Brnovich decision. The harm of these bills is alarming: They are likely to remove more than 100,000 voters from the vote-by-mail list, prohibit voters from fixing missing signatures on their ballots, and ban election officials from accessing crucial grant funding for voter education and election administration. SB1819 is directly based on conspiracy theories: It creates a special committee to review any “findings” of the election review scam and allows for outside groups with partisan ties (like the farcical Cyber Ninjas) to review voter rolls. 

There is a direct throughline between the current wave of anti-voter legislation and the two policies challenged in Brnovich. The first policy threw out provisional ballots cast outside of the voter’s designated precinct. The second restricted all but certain people (i.e., family and household members, caregivers, mail carriers, and elections officials) from handling another person’s completed early ballot. The state was only able to enact these ballot collection restrictions, as the Brnovich dissent notes, because the Court already gutted Section 5 of the Voting Rights Act in the Shelby County v. Holder decision. This policy was not able to obtain preclearance from the Justice Department under Section 5 while it was in effect. The Shelby County decision eliminated the need to obtain preclearance altogether, allowing the policy to be made law.

On its face, this case was about two Arizona procedures that created unnecessary and burdensome barriers for voters of color to cast their ballots and violated the Voting Rights Act, according to the abundant evidence and previous findings of the 9th Circuit Court of Appeals. But no person who works on voting rights in Arizona believes that this case was heard by the Supreme Court simply because the Court cared about the two policies challenged by voters under Section 2. 

Instead, we know that the Brnovich policies, anti-voter legislation, and the Supreme Court’s desire to undermine Section 2 are all part of a broader, coordinated attack on our freedoms — from our freedom to vote to our freedom to assemble and speak out for the things we believe in. No one pushing these decisions, policies, or bills are fueled by facts or data, but by an unrelenting desire to maintain their own power by removing and diminishing the power of everyday Americans.

Take how the ballot collection law challenged in Brnovich originated and was implemented. A former lawmaker “motivated by a desire to eliminate the increasingly effective efforts to ensure that Hispanic votes in his district were collected, delivered, and counted” introduced it. The final legislation passed by state lawmakers was based on “farfetched allegations of ballot collection fraud,” the 9th circuit found. 

But these farfetched fever dreams had very real consequences for Arizonans once the law was enacted. 

In October 2020, as Arizonans were casting their ballots for the general election, the attorney general sent uniformed deputies door-to-door in heavily Hispanic San Luis to question residents about their voting history as part of an investigation into “ballot collection.” This aggressive approach ultimately found a grand total of just four ballots that were delivered improperly under the law, despite questioning and potentially intimidating hundreds of residents. None of those four ballots were fraudulent, something already adequately prohibited under Arizona law. Instead, all the “ballot collection” ban did was create the ability to abuse a Hispanic community under false pretext, prosecute civic-minded people unaware of the law, and give anti-voter lawmakers the nefarious benefit of intimidating and suppressing voting in Black and Brown communities.

Now was the time when voters most needed the Court to say that enough is enough, voters pick our leaders — our leaders do not pick which voters to hear and which to silence. Instead, the Court chipped away at our foundational rights and blunted one of the last federal tools in our toolbox: Section 2 of the Voting Rights Act.

So it's up to voters and Congress to do what the Court did not. With the Voting Rights Act even more diluted, it’s more important than ever that citizens who care about our democracy get involved by checking their registration, voting, and joining efforts at the local and state levels to help make sure that state laws and local election procedures are implemented in voter-friendly ways. Finally, Congress must pass the For the People Act and the John Lewis Voting Rights Advancement Act to restore the full strength of the Voting Rights Act and provide protection against discriminatory policies like those in Arizona.

The stakes could not be higher. This is a turning point for our nation. We must decide if we are going to let a determined, anti-democratic minority take away our rights and freedoms or if we are going to push our country to live up to its highest ideals. 

As Justice Elena Kagan wrote in the Brnovich dissent, the Voting Rights Act “made a promise to all Americans. From then on, Congress demanded, the political process would be equally open to every citizen, regardless of race. One does not hear much in the majority opinion about that promise.” Therefore, it’s up to us to make sure they hear it. From the voter centers of Maricopa County to the halls of Congress, we must demand that promise be upheld. 

Alex Gulotta is the Arizona State Director & Acting National Director at All Voting is Local, a collaborative campaign of the Leadership Conference on Civil and Human Rights, which fights to remove needless and discriminatory barriers to the ballot in eight states - Arizona, Florida, Georgia, Michigan, Nevada, Ohio, Pennsylvania and Wisconsin. 

Relationship Check-in: LGBTQ People and the Supreme Court

During the long tenure of now-retired Justice Anthony Kennedy, gays and lesbians enjoyed a remarkable run of success at the Supreme Court. In four landmark decisions written by Kennedy, the Court gave a strong form of Equal Protection scrutiny to anti-gay legislation starting in 1996; swept away the last remaining sodomy laws in 2003; struck down the federal Defense of Marriage Act in 2013; and brought marriage equality to all 50 states with Obergefell v. Hodges in 2015.

Since Kennedy’s retirement three years ago, the Court has by some measures become more conservative. Still, last year it delivered a surprising and welcome ruling in Bostock v. Clayton County that Title VII, the federal law prohibiting sex discrimination in employment, also encompasses sexual orientation and gender identity. As LGBTQ anti-discrimination legislation fails to advance in Congress, we were again reminded that sometimes it takes unelected justices, not the political process, to deliver policies most Americans endorse.

As we approach the end of both a Supreme Court term and another Pride month, three things seem clear. First, the future of marriage equality is secure. Second, the aggressive legal war by religious conservatives against compliance with LGBTQ anti-discrimination laws has so far found quite limited success. Third, as transgender equality has become the frontier of the LGBTQ movement, the Supreme Court has declined to disturb favorable lower court rulings on important questions of trans equality.

Why Marriage Equality Is Secure

When conservative Catholic Amy Coney Barrett was nominated to the Court last fall, LGBTQ advocates sent out distress signals warning she might join an effort to roll back Obergefell. But that idea seems more far-fetched than ever.

There are now well over half a million married same-sex couples in the United States. Marriage equality enjoys record-high support of 70 percent of Americans, including a majority of Republicans. Same-sex marriage has become a quotidian and well-accepted fact of American life. The religious right – recognizing the crushing political, cultural, and legal defeat it received on the issue – has largely moved on.

In a little-noticed per curiam decision in 2017, Pavan v. Smith, the Court clarified that the Constitution protects equality not only in getting married but in being married. The case involved Arkansas’s attempt to deny birth certificates for the children of married same-sex couples on equal terms with straight couples. In Pavan, the Court rebuked Arkansas and ordered it to treat same-sex couples equally. The Court underscored that, when it said two years earlier in Obergefell that states may not “exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples,” it meant also the “rights, benefits and responsibilities” that accompany marital status.

Chief Justice John Roberts, who had vigorously dissented in Obergefell, joined the majority in Pavan.  Although three conservative justices dissented in Pavan, they did so primarily to object that the Court was disposing of the case without full briefing and oral argument.

More recently, in October 2020, the Court rejected a cert petition from Kim Davis, the Kentucky clerk who had illegally refused to issue marriage licenses to same-sex couples. Davis was subsequently sued for monetary damages by two of the couples she had denied, and she lost in the lower courts. Apparently, no justice, not even the most conservative ones, thought the Supreme Court should hear Davis’s appeal (which was based on the doctrine of qualified immunity) of the Sixth Circuit’s decision against her.

Though they did not dissent from denying the cert petition, the Court’s two most hard-right justices, Clarence Thomas and Samuel Alito, issued a surly “statement” on what they saw as Obergefell’s harmful effects on the religious liberties of marriage equality opponents. Thomas and Alito did not argue that the core holding Obergefell should be revisited; their main argument was that marriage equality requires greater accommodations for religious opponents. Conservative Justices Roberts, Brett Kavanaugh, and Neil Gorsuch did not join the statement, suggesting a clear desire among a majority of the justices to put the issue of same-sex marriage behind them once and for all.

In light of all these developments, there is no chance the Court will retreat from the principle that same-sex couples have a constitutional right to marry.  Most of the justices care about things like stability in the law (especially in an area like marriage, where children and property are involved), the reliance interests of those who have already married, and how the Court as in institution is perceived. Moreover, the calculus is different from the issue of abortion, where religious conservatives and the Republican party have never relented in their efforts to relitigate Roe v. Wade. Obergefell brought the Court into line with long-term cultural changes and public attitudes regarding marriage, and the Court has no appetite for going back.

Religion and LGBTQ Rights

In the celebrated case of Colorado baker Jack Phillips and his Masterpiece Cakeshop, religious conservatives pushed for a bold new interpretation of the First Amendment that would have greatly expanded their power to exempt themselves from laws protecting LGBTQ people against discrimination. Instead, the Court in 2018 issued a narrow ruling that gave Phillips a nominal victory but wrote no new First Amendment doctrine that could be used to attack anti-discrimination laws.

Earlier this month, the Court decided Fulton v. City of Philadelphia, in which a Catholic foster care agency which declined to work with married same-sex couples sued over a city policy barring such discrimination.  Fulton had been closely watched for how it might create new law at the intersection of religion and LGBTQ equality.

Again, the Court declined invitations from conservative activists for a sweeping decision that would grant greater privileges to religion. A unanimous Court – led by Roberts and including the newest conservative justice, Barrett – issued a dry and narrow decision that applied existing Free Exercise Clause precedents. While the decision went in favor of the Catholic agency, it turned on technicalities of language in the city’s policy, not normative judgments about the relative importance of religion vs. LGBTQ equality. Commentators who have warned in click-bait headlines that the decision will “devastate LBGTQ foster families” either do not understand it or are misrepresenting it. Significantly, the Court agreed that the city’s interest in equal treatment “is a weighty one,” because (and here it quoted from Masterpiece Cakeshop) “our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.”

It’s worth noting that the battle in this case was more about symbolism than actual mistreatment of same-sex couples. No same-sex couple was prevented from serving as foster parents, because when Catholic Social Services encountered a couple it couldn’t serve, it referred the couple to another agency. This episode might teach LGBTQ advocates that, if we as a nation are to attain some measure of peaceful coexistence between LGBTQ rights and religious liberty, then, as I have argued, “occasionally the better path to justice and civil peace is to forebear from using all of the weapons that law makes available.”

Trans Equality

 Transgender equality is the cutting edge of the LGBTQ movement.  With Bostock, the Court dramatically expanded federal employment protections for trans people.  At the same time, even as red states are enacting animus-laden new laws attacking trans people, the Supreme Court seems disinclined to get involved in this culture war. This term it turned away cert petitions in two cases where lower courts had protected the ability of transgender students to use bathrooms and other sex-segregated school facilities based on their gender identity.

In December, the Court declined to hear a case in which an Oregon group of “parents for privacy” claimed that their and their children’s rights were violated when schools accommodated trans students. The plaintiffs lost in the lower courts, and the Supreme Court let those rulings stand.

Saying a school may accommodate transgender students without violating anyone else’s rights is not the same thing as saying the school must do so under federal law. But after protracted litigation involving transgender man Gavin Grimm, the Fourth Circuit U.S. Court of Appeals ruled last August that under Title IX, the federal law prohibiting sex discrimination in education, high schools must allow transgender students to use bathrooms that correspond to their gender identity.

Grimm has now graduated, but the Gloucester County School Board in Virginia refused to give up the fight and sought a writ of certiorari against the Fourth Circuit’s decision.  We learned Monday that the Court has taken a pass on this case as well. (The Court’s two unabashed right-wing activists, Thomas and Alito, said they would have granted the petition.) This is a major, high visibility victory for the ACLU, which represented Grimm.

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With the Court’s current term drawing to a close, Harvard Law School’s Jeannie Suk Gersen observed this past weekend that “the Justices repeatedly defied expectations, with conservatives and liberals together forming majorities in high-profile cases in order to avoid or defer the fighting of deeper wars.” That observation seems especially accurate when it comes to legal questions affecting LGBTQ people. While we are no longer seeing the splashy, landmark decisions of the Justice Kennedy era, LGBTQ people have reason for optimism that constitutional and federal law will continue to respect and safeguard their equality and dignity.

Steve Sanders teaches and writes about Constitutional Law and LGBTQ legal issues at the Indiana University Maurer School of Law in Bloomington.  He has participated in groundbreaking litigation concerning marriage equality and transgender rights.