It took me about ten hours to edit the entire 237-page decision. (I would have finished sooner, but I was stuck in United Airlines purgatory for much of the day.) The edited version is 57 pages. I realize this cut is probably far too long for a single-class session.
I need to give some serious thought to how to cover affirmative action. For starters, I think I would reduce the coverage of Grutter and Gratz. Fisher I and II probably fall out as well. In one class, I could reasonably cover the Chief Justice's majority opinion and Justice Sotomayor's dissent. Justice Gorsuch focuses at some length on the statutory issue, which is not really germane to a ConLaw class, so I would probably skip it. And Justice Kavanaugh's concurrence repeats the 25-year theme over and over and over and over again. I would skip that as well. Justice Thomas's concurrence--especially the originalist defense of the color-blind Constitution--would make more sense in the chapter on the Reconstruction Amendments, after Plessy. I know that Justice Jackson's dissent will win plaudits from progressives, but there is very little actual law in it. Her entire dissent may be suited for a seminar on race in the law, but only a short excerpt would be needed for a 1L class.
I will have much more to say about this case. And I'm way behind. I have lots of thoughts on Mallory. And I didn't even get to read Groff or Counterman yet. Stay tuned.
From In re Martel, decided yesterday by the South Carolina Court of Appeals (Judges Paula Thomas, Stephanie McDonald, and Blake Hewitt):
This case involves a family court judge's direct contempt citation against Appellant, attorney Lauren Martel. Martel argues the family court erred in finding her in criminal contempt at a hearing in which the judge's impartiality and temperament were questioned. We agree, and we reverse the finding of contempt.
The first family court judge assigned to hear the emergency motion in this contentious custody litigation properly recused herself "to avoid any appearance of impropriety" when Martel's client [Mother] …, expressed concerns about the first judge's familiarity with the family of [Father] …. The then-chief administrative judge for Fourteenth Circuit family court matters stepped in to the January 10, 2019 emergency hearing and rescheduled the matter for the following week. At that time, Martel advised that this second judge might have a conflict as well. In response, the family court instructed her to "file something. We want it in writing."
The following day—January 11—Martel emailed the scheduling clerk—copying the family court judge, Father's counsel, and others—and identified several issues she believed necessitated the second judge's recusal as well. We will not detail all of the concerns here, but the email included an allegation that the second judge "appears to be practicing law in this case rather than presiding over this serious matter in [an] unbiased manner" possibly due to his close relationships with Father's family and counsel and the judge's personal bias against Mother's attorney, Martel….
In keeping with our podcast's promise of being "unscheduled and unpredictable," my co-host Dan Epps and I managed to schedule a series of awkwardly timed trips throughout the month of June, which is a really ironic way to run a Supreme Court podcast. But yesterday we did manage to release a long episode, Demokratia, that might be of interest to Conspiracy readers. Here's the summary:
We record our first inter-continental episode, as Will reports in from a visit to Tel Aviv. We then dive in to two of this month's opinions: Haaland v. Brackeen, which rejects a series of challenges to the Indian Child Welfare Act, and United States v. Hansen, which upholds a federal immigration law against a free speech overbreadth challenge.
The title of the episode is the Hebrew word for "democracy," inspired by the experience I summed up in this tweet (though I got the translation wrong):
Last night I went to watch the protests against judicial reform in Tel Aviv. Truly amazing that more than a hundred thousand people would turn out, week after week, to chant "democrati" in the name of defending a court from politics. pic.twitter.com/EPinYVERug
In our subsequent discussion of Haaland v. Brackeen, much discussed by others on this blog, I discuss a potential pattern in Justice Barrett's treatment of precedent, something I had noticed earlier in her concurrence in Fulton v. City of Philadelphia and which is reflected as well in her majority opinion in Brackeen. I think of it as the "look before your leap" principle.
In both cases, Justice Barrett wants some account of where a theory of the law is supposed to take her before she decides whether to embrace it. In Brackeen, that's a theory of how to reconcile -- or to not reconcile, either one! -- the challengers' theory of federal Indian power with the Court's cases. In Fulton it's a theory of what would replace Employment Division v. Smith if Smith is to be overruled. It demonstrates, I think, a quite sensible refusal to just muddle through and assume the law will sort itself out later.
To be sure, there are important differences between these two examples. In Fulton, the question was whether to overrule a major precedent; in Brackeen part of the problem was a prior one, an insufficient explanation of whether the parties wanted major precedents overturned and if so which ones. But I think it will be worth watching for future examples of this principle, which I expect we will see.
The podcast will likely stay dark for a couple weeks, and then start analyzing the end-of-term cases just when you least expect it.
A preliminary assessment of today's decisions. The majority rightly struck a blow against the use of racial preferences for purposes of advancing "diversity" in education. But there are some flaws in its reasoning.
Today, the Supreme Court ruled against Harvard and the University of North Carolina in cases challenging the legality of their use of racial preferences in student admissions. The decision severely restricts, even if it doesn't completely ban, the use of racial preferences of purposes of achieving "diversity" in educational institutions. Chief Justice Roberts' majority opinion does an excellent job of laying out many of the flaws in diversity preferences, including nebulous goals, reliance on crude racial classifications and stereotypes, and the unconstitutional use of race as a "negative" to disadvantage Asian-American applicants, among others. Justice Neil Gorsuch's concurrence correctly points out that the cases could have been resolved more easily by relying on the plain text of Title VI of the Civil Rights Act of 1964.
On the downside, the Court did a poor job of reconciling its decisions with previous precedents giving much broader leeway for "diversity" preferences, most notably Grutter v. Bollinger(2003) and Fisher v. University of Texas II (2016). Some parts of the majority opinion could also potentially enable the continuation of some racial preferences in disguise.
No blog post could do justice to the 237 pages of majority, concurring, and dissenting opinions in this case! But I will try to expand somewhat on several key points.
First, it's important to remember that Harvard and UNC justified their use of racial preferences by reference to the supposed educational benefits of racial and ethnic "diversity." Even if you think affirmative action can be justified on some other basis, such as compensating for historical injustice, today's rulings are focused on the far more dubious diversity rationale.
And, as Roberts and Gorsuch effectively explain, that rationale is so full of holes that it can't possibly pass muster under the "strict scrutiny" imposed on the use of racial classifications. For example, the racial categories into which Harvard UNC divide up applicants (black, white, Latino, Asian, etc.) are extremely crude and verge on simplistic stereotyping. As Gorsuch points out, the "Asian" category "sweeps into one pile East Asians (e.g., Chinese, Korean, Japanese) and South Asians(e.g., Indian, Pakistani, Bangladeshi), even though together they constitute about 60% of the world's population." The other categories are not much better. WASPS, Jews, and immigrants from Bulgaria and Sweden are all equally "white." "Latino" likewise includes people from a vast range of nations and cultures. "Black" lumps in native-born African-American descendants of slaves with immigrants and children of immigrants from a wide range of countries in Africa and the Carribbean. The "narrow tailoring" required by strict scrutiny surely compels a far more nuanced assessment.
As Chief Justice Roberts explains, this kind of lumping also inevitably leads to crude stereotyping, based on the assumption that all members of these broad categories have relatively similar views and backgrounds, different from those of all the other broad aggregates. That is pretty obviously false in many cases. For example, an upper-middle class white person probably has much more in common with a native-born African-American from the same economic background in the same city, than either is likely to have with an immigrant from Bulgaria or Nigeria, even though the former is classified as "white," and the latter "black." Along related lines, the exchange between Clarence Thomas' concurring opinion in today's cases and Ketanji Brown Jackson's dissent powerfully demonstrates how two native-born African-Americans from southern states can have vastly different perspectives on the the black American experience, its history, and what that history implies for today.
The crudeness of the racial and ethnic categories used by Harvard and UNC also undercut Justice Jackson's otherwise powerful appeal to the historic disadvantages faced by African-Americans. She is obviously right that blacks are on average worse off than whites on various social and economic dimensions, and that the legacy of slavery, Jim Crow, and other discrimination is a large part of the reason why.
But even if blacks are worse off, on average, that doesn't mean that all or even most black applicants to elite institutions like Harvard have suffered greatly from discrimination. Many are relatively affluent members of the upper middle class. Conversely, many of those discriminated against by affirmative action themselves come from groups with their own histories of disadvantage and discrimination (most notably Asians).
One of my black classmates at Yale Law School was the son of the attorney general of his state. That does not mean his life was free of racism (for example, he still experienced racial profiling by police, which is a serious injustice opponents of affirmative action, including my fellow libertarians, should pay more attention to). But it seems unlikely he was, overall, as disadvantaged as, say, a recent Asian immigrant, or a poor white applicant from Appalachia.
The horrific historic injustices suffered by African-Americans do not justify lumping them all into one group for purposes of racial preferences. The same goes for whites, Latinos, and others.
If the racial and ethnic categories Harvard and UNC use are nebulous and crude, the same applies to the goal these categories are supposed to serve. As Roberts also explains in detail, it is hard to say what is meant by "diversity," what the educational benefits of it are, and how we can measure whether and to what extent they have been achieved.
None of this matters much if you think universities should be given broad discretion to use racial preferences, so long as it is for seemingly good motives. But even supporters of affirmative action usually acknowledge that there needs to be at least some rigorous scrutiny of government's use of racial classifications. They can't just be given a pass, like run of the mill government policies. That's true whether you are an originalist, a living constitutionalist, or some combination of both.
Consider, for example, Justice Ruth Bader Ginsburg's statement that "[t]he mere assertion of a laudable governmental purpose, of course, should not immunize a race-conscious measure from careful judicial inspection…. Close review is needed 'to ferret out classifications in reality malign, but masquerading as benign,' Adarand, 515 U.S., at 275 (Ginsburg, J., dissenting), and to 'ensure that preferences are not so large as to trammel unduly upon the opportunities of others or interfere too harshly with legitimate expectations of persons in once-preferred groups.'" The Harvard and UNC policies can't possibly survive a genuine "careful judicial inspection."
In the majority opinion, Chief Justice Roberts also emphasizes that race cannot be used as a "negative" in university admissions. In one sense, as he also points out, any use of racial preferences creates such a negative for non-preferred groups. That's an inevitable feature of the zero-sum nature of college admissions at selective institutions. But he also notes evidence that Harvard specifically tried to restrict the percentage of Asian-American applicants admitted, through the use of various devices, such as giving them lower personal ratings. In different ways, Roberts, Gorsuch, and Thomas note that discrimination against Asian applicants makes a mockery of the "diversity" rationale, and also of the idea that racial preferences are supposed to benefit historically disadvantaged groups. After all, Asians themselves have a long history of being victimized by state-sponsored discrimination, of which the detention of Japanese-Americans in internment camps during World War II is just one of many examples.
The Court could, however, have avoided the need to go into the details of the Harvard and UNC programs if it had simply decided these cases based on Title VI of the Civil Rights Act of 1964, which states that "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."
There is no exception here for racial and ethnic preferences adopted for purposes of promoting diversity, or indeed for any other reason. Harvard, a private institution, is actually covered only by Title VI; it is not constrained by the anti-discrimination requirements of the Equal Protection Clause of the Fourteenth Amendment, which only applies to government entities (including UNC). Gorsuch is right to argue that the Harvard and UNC cases could have been resolved based on Title VI alone. However, only Thomas was willing to join Gorsuch's concurring opinion on this point.
That may be because previous Supreme Court decisions have ruled that Title VI's antidiscrimination standards are identical to those of the Equal Protection Clause, and the Supreme Court has a high bar for overruling statutory precedents, reaffirmed just recently in Allen v. Milligan. To my mind, the deviation from the plain text of Title VI is so egregious and so poorly reasoned that overruling statutory precedent would have been justified here. But the majority of justices clearly don't agree.
Less excusably, the Roberts' majority opinion and Brett Kavanaugh's concurrence play fast and loose with the Court's affirmative action precedents, such as Grutter and Fisher II. They contend that today's majority opinion is completely compatible with those previous precedents and doesn't require any significant modification of them. I won't try to go over the various convoluted details here. But I think the dissents by Justices Jackson and Sotomayor effectively point out that these precedents give far greater deference to university decision-making on affirmative action policy than does today's majority opinion. The majority would have done better to overrule Grutter, or at least significantly limit its scope.
The failure to overrule or limit Grutter leaves open the possibility that "diversity" might still be a compelling state interest that could justify the use of racial preferences in admissions, in at least some circumstances. Justice Thomas says that "[t]he Court's opinion rightly makes clear that Grutter is, for all intents and purposes, overruled." I don't think so. Otherwise, there would be no need for Roberts' and Kavanaugh's elaborate efforts to square their reasoning with that precedent. That said, the majority opinion does make it very hard to justify anything like the kinds of crude racial classifications used by many universities today.
In a footnote, Chief Justice Roberts notes that today's decision does not apply to the special context of "the nation's military academies." There are indeed special justifications for affirmative action in the military context that probably don't apply elsewhere. Still, this is another sign that the decision doesn't categorically ban all racial preferences, even in higher education.
The majority also emphasizes that universities can still consider applicants' experiences of racial discrimination and other effects that racial or ethnic identity may have had on their lives:
[N]othing in this opinion should be construed as prohibiting universities from considering an applicant's discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise…. But, despite the dissent's assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today. (A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion. "[W]hat cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows," and the prohibition against racial discrimination is "levelled at the thing, not the name." Cummings v. Missouri, 4 Wall. 277, 325 (1867). A benefit to a student who overcame racial discrimination, for example, must be tied to that student's courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student's unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.
Roberts is right that universities can legitimately consider applicants' individual experiences with racial discrimination, and other ways in which their racial and ethnic backgrounds may have affected them. He's also right that such consideration should not become a smokescreen for reintroducing racial preferences by the back door. But I worry, nonetheless, that many institutions will try to do the latter under the guise of the former.
More generally, it is likely that many institutions will try to replace explicit racial preferences with seemingly "race-neutral" alternatives that try to target characteristics that correlated with membership in a particular racial or ethnic group. Such subterfuges were used on a large scale to try to resist desegregation after Brown v. Board of Education. And we already see them in recent efforts to preserve racial preferences for blacks and Latinos, and keep down the percentage of Asian students at selective institutions.
It is also not entirely clear what the implications of today's ruling are for racial preferences outside education, such as in the field of government contracting. The conservative majority on the Court is likely to take a dim view of those preferences, as well. But exactly how dim is hard to tell.
Despite these and other caveats and shortcomings, today's decisions are an important step in the right direction. They won't put an end to all use of racial preferences. But they reaffirm and extend the fundamental principle that such discrimination is deeply unjust, and at least presumptively unconstitutional.
UPDATE: I wrote and posted this before seeing Will Baude's insightful post on the same topic. I agree with most of what he says there.
The standard pro hac vice admission order by Judge Donald Molloy (D. Mont.) now appears to include the provision,
Use of artificial intelligence automated drafting programs, such as Chat GPT, is prohibited.
Pro hac vice admission is required for lawyers who aren't members of the court's bar (here, the U.S. District Court for the District of Montana) but who want to be allowed to participate in a particular case (with a bar member as local counsel). Pro hac status is routinely granted, but is still viewed as a discretionary decision by the court, not as a matter of entitlement. Presumably Judge Molloy disapproves of use of AI programs generally, but felt inclined to apply the requirement only to lawyers who take advantage of what seen as a discretionary benefit.
on being cited by opinions in today's Student for Fair Admissions case: Randy and Gail were cited in Justice Thomas's concurrence, and David was cited several times in Justice Gorsuch's concurrence.
From Judge Lewis Kaplan's opinion today in Carroll v. Trump (S.D.N.Y.):
This is a defamation case brought by writer E. Jean Carroll against President Donald Trump, as he then was, for statements Mr. Trump made in June 2019 shortly after Ms. Carroll publicly accused him of sexual assault. In those statements, Mr. Trump denied Ms. Carroll's accusation, stated that he "has no idea who this woman is," and suggested that she fabricated her accusation for ulterior and improper purposes, including to increase sales of her then-forthcoming book in which she discusses having been sexually assaulted by Mr. Trump and other men.
In a second and very closely related case ("Carroll II"), Ms. Carroll sued Mr. Trump for the alleged sexual assault itself and for defamation based on a statement that Mr. Trump published on his social media platform in October 2022 that was substantially similar to his June 2019 statements. That case was tried in April and May 2023. The jury unanimously found that Mr. Trump had sexually abused Ms. Carroll and defamed her in his October 2022 statement. It awarded Ms. Carroll a total of $5 million in compensatory and punitive damages: $2.02 million for her sexual assault claim, and $2.98 million for her defamation claim.
In this case ("Carroll I"), Ms. Carroll seeks damages and other relief for defamation for Mr. Trump's June 2019 statements only. The matter now is before me on Mr. Trump's motion for summary judgment dismissing the action on four grounds:
Trump is entitled to absolute presidential immunity
Trump's statements were not defamatory per se and Ms. Carroll cannot establish special damages
the majority of Trump's statements were nonactionable opinion
Carroll consented to Mr. Trump's allegedly defamatory statements. He argues also that punitive damages in any case would be unwarranted on Ms. Carroll's defamation claim.
His arguments are without merit….
Roberta Kaplan, Michael Ferrara, Shawn Crowley, Trevor W. Morrison, Matthew J. Craig, and Joshua Matz (all of Kaplan Hecker & Fink LLP) represent Carroll.
This books and records action originates from The Walt Disney Company's response to Florida House Bill 1557. Disney initially took no public position on the bill, which limits instruction on sexual orientation or gender identity in Florida classrooms. After facing criticism from its employees, Disney reversed course and spoke out against the legislation. Florida's Governor took issue with Disney's stance and Florida's legislature voted to dissolve a special tax district encompassing the Walt Disney World Resort.
Afterwards, the plaintiff—a longtime Disney stockholder—was solicited by counsel to serve a books and records demand. The demand asserts that Disney's directors and officers may have breached their fiduciary duties to the company and its stockholders by opposing HB 1557. The plaintiff's theory of wrongdoing is that Disney's fiduciaries either put their own beliefs ahead of their obligations to stockholders or flouted the risk of losing rights associated with the special district.
Disney told the plaintiff that he lacked grounds to obtain books and records because its directors and officers had not engaged in mismanagement. Nevertheless, Disney produced certain board minutes and corporate policies to the plaintiff. The plaintiff was unsatisfied and filed litigation.
Weighty public policy questions surround the margins of this lawsuit. But when they are stripped away, the case becomes quite simple. The court must determine whether the plaintiff has demonstrated a proper purpose to inspect books and records. He decidedly has not.
Delaware law vests directors with significant discretion to guide corporate strategy—including on social and political issues. Given the diversity of viewpoints held by directors, management, stockholders, and other stakeholders, corporate speech on external policy matters brings both risks and opportunities. The board is empowered to weigh these competing considerations and decide whether it is in the corporation's best interest to act (or not act).
This suit concerns such a business decision by the Disney board—a decision that cannot provide a credible basis to suspect potential mismanagement irrespective of its outcome. There is no indication that the directors suffered from disabling conflicts. Nor is there any evidence that the directors were grossly negligent or acted in bad faith. Rather, the board held a special meeting to discuss Disney's approach to the legislation and the employees' negative response. Disney's public rebuke of HB 1557 followed.
The plaintiff and his counsel may disagree with Disney's position on HB 1557. But their disagreement is not evidence of wrongdoing. Regardless, the plaintiff has all necessary and essential documents relevant to his purpose. Judgment must be entered for Disney….
Today in Students for Fair Admissions v. Harvard, the Supreme Court effectively ended the current regime of diversity-justified-race-based affirmative action in higher education. As the opinion for the Court by Chief Justice Roberts puts it:
University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and—at some point—they must end. Respondents' admissions systems—however well intentioned and implemented in good faith—fail each of these criteria. They must therefore be invalidated under the Equal Protection Clause of the Fourteenth Amendment.
While the majority opinion is somewhat cagey about the extent to which it is overturning its prior precedents such as Grutter and Fisher as a formal matter, it does seem clear that going forward current practices at many elite universities will now be held unlawful. Here is the Court's conclusion:
For the reasons provided above, the Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful endpoints. We have never permitted admissions programs to work in that way, and we will not do so today.
At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant's discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. See, e.g., 4 App. in No. 21–707, at 1725–1726, 1741; Tr. of Oral Arg. in No. 20–1199, at 10. But, despite the dissent's assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today. (A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion.) "[W]hat cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows," and the prohibition against racial discrimination is "levelled at the thing, not the name." Cummings v. Missouri, 4 Wall. 277, 325 (1867). A benefit to a student who overcame racial discrimination, for example, must be tied to that student's courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student's unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.
Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual's identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.
The majority opinion is generally unsurprising to anybody who has followed the issue and the litigation, and the same is generally true of the other separate opinions and dissents in the case as well. That said, many of them are still worth reading. I would particularly highlight Justice Thomas's concurring opinion which offers—I think for the first time on the modern Court—"an originalist defense of the colorblind Constitution" and Justice Gorsuch's concurring opinion which highlights the way these cases could and should be resolved more simply on the basis of Title VI of the Civil Rights Act.
The decision, which interprets Title VII's reasonable accommodation provision (enacted in 1972), applies to private employees as well as government employees.
Since its passage, Title VII of the Civil Rights Act of 1964 has made it unlawful for covered employers "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges [of] employment, because of such individual's … religion." As originally enacted, Title VII did not spell out what it meant by discrimination "because of … religion," but shortly after the statute's passage, the EEOC interpreted that provision to mean that employers were sometimes required to "accommodate" the "reasonable religious needs of employees." … [But] EEOC decisions did not settle the question of undue hardship. In 1970, the Sixth Circuit held (in a Sabbath case) that Title VII as then written did not require an employer "to accede to or accommodate" religious practice because that "would raise grave" Establishment Clause questions….
Responding to [this] …, Congress amended Title VII in 1972. Tracking the EEOC's regulatory language, Congress provided that "[t]he term 'religion' includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business."
This thus created a duty on employers to exempt religious objectors from generally applicable rules (e.g., work schedules, dress and hairstyle codes, particular job tasks, etc.) when that can be done "without undue hardship," but what does that mean? The Court's leading precedent interpreting this, Hardison v. Trans World Airlines (1977), has been requiring only accommodations that would involve only "a de minimis cost"—i.e., a very small cost—but the Court's opinion today concludes that this was an offhanded remark that didn't capture the true scope of the Title VII provision:
I am putting this post up on behalf of Northwestern University law Prof. Steven Calabresi, at his request. While Steve is a contributor to the Volokh Conspiracy blog, he has been having difficulty accessing his account. In the interests of getting this post up as quickly as possible, I am posting it for him. Everything that follows this sentence was written by Steve, not me (Ilya Somin):
In Moore v. Harper, 600 U.S. ____ (2023), the Supreme Court in a landmark opinion issued yesterday rejected the Independent State Legislature Doctrine. At issue was the meaning of the word "legislature" in the Elections Clause of Article II. That Clause provides that: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators"
Proponents of the Independent State Legislature Theory believed that after President Trump's rejection by the voters in the 2020 presidential election in Pennsylvania, Georgia, Wisconsin, and Arizona, the Republican State Legislatures of those four states, acting alone without the Governor or judicial review by the State Supreme Court, could have awarded Pennsylvania's, Georgia's, Wisconsin's, and Arizona's Electoral College votes to Trump, which would have caused him to win a second term in 2020. Article II, Section 1, Clause 2 in the Presidential Electors Clause says that "Each State shall appoint, in such Manner as the Legislature thereof may direct."
The issue for the Supreme Court in Harper v. Moore is does the word "legislature" in these two clauses mean "the state senate and house of representatives" or does it mean "the lawmaking process in the state including the governor, who in all 50 states has a veto; the state supreme court, which in all 50 states have the power of judicial review under state constitutions; and popular initiatives and referenda, which exist in about half the states, and which in some states have set up Non-Partisan Redistricting Commissions, which would be unconstitutional under the Independent State Legislature Theory."
The original public meaning of the word "Legislature" in 1787 and 1788, when the U.S. Constitution was ratified, is set out in Samuel Johnson's 1755Dictionary of the English Language. Here it is, with examples of the correct usage in Italics:
"Legisla'ture. n.s.
[from legislator, Latin.]The power that makes laws.
Without the concurrent consent of all three parts of the legislature, no law is or can be made. Hale's Com. Law.
In the notion of a legislature is implied a power to change, repeal, and suspend laws in being, as well as to make new laws. Addison's Freeholder, №. 16."
The Hale's Com. Law definition refers to the fact that in Great Britain, in 1755, the enactment of a law required the approval of the House of Commons, the House of Lords, and the King. The Addison's Freeholder, No. 16 definition makes it clear that in half of the United States popular initiatives and referenda are legislatures, because they can change, repeal, and suspend.as well as to make new laws.
Samuel Johnson's 1755Dictionary of the English Languagemakes it crystal clear that the Independent State Legislature Doctrine is just plain wrong on originalist grounds.
Chief Justice Roberts' superb opinion for six justices of the Supreme Court emphasized that state senates and state houses of representatives are merely creatures of state constitutions. They share the power to make laws with governors who in all 50 states have the veto power and with state supreme courts, which in all 50 states have the power of judicial review. In addition, in half the states elections laws can be made by popular initiatives and referenda. By 1787 and 1788, state supreme courts had, as Chief Justice Roberts points out, exercised the power of judicial review. Executive vetoes were also constitutionally provided for in Massachusetts and New York.
It is thus inconceivable that the conventions that ratified the Constitution would have meant the word "Legislature" to mean only state senates and state houses of representatives as opposed the whole lawmaking process of a state. Chief Justice Roberts also notes that the Independent State Legislature Doctrine conflicts with several Supreme Court precedents and finds support only in a three-justice concurrence in Bush v. Gore, 531 U.S. 98 (2000), an opinion that was written with great haste and insufficient briefing.
Chief Justice Roberts' opinion notes that ordinarily the Supreme Court defers to state supreme courts as having the last word on questions involving the meaning of state law as was held in Murdock v. City of Memphis, 87 U.S. 590 (1875). Quite importantly, however, Chief Justice Roberts qualified the deference federal courts should give to state court interpretations of state law by suggesting that such state court decisions must be the product of an ordinary course of judicial review. Cf Bush v. Gore? I wrote an amicus brief in this case with Yale Sterling Professor of Law, Akhil Reed Amar and Professor Vikram D. Amar, which is linked here.
From Jocelyn P. v. Joshua P., decided yesterday by the Maryland Appellate Court (nonprecedential opinion by Judge Andrea Leahy, joined by Justices Christopher Kehoe & Terrence Zic):
"Promises are the uniquely human way of ordering the future, making it predictable and reliable to the extent that is humanly possible." -Hannah Arendt ….
The parties, Jocelyn P. … and Joshua P. …, resorted to the IVF process during the course of their marriage after they attempted, unsuccessfully, to conceive a child by natural means. The couple managed to produce three viable pre-embryos for uterine implantation after Jocelyn gave up her job and endured years of emotional and physical pain and suffering. The implantation of the first pre-embryo resulted in a miscarriage, while implantation of the second happily culminated in the birth of the parties' first child, F.P. Unfortunately, after F.P.'s birth, Jocelyn and Joshua's relationship deteriorated and the parties ultimately sought dissolution of the marriage. After agreeing to settlement terms on all other matters, the fate of the parties' third pre-embryo—which Jocelyn desires to use for implantation and Joshua desires to destroy—remained in dispute.
[The trial court] took … testimony and entered a memorandum opinion and order (1) finding that the parties' oral agreement only contemplated disposition of the pre-embryos during their marriage, and (2) awarding the pre-embryo to Joshua after balancing the parties' interests….
We hold that the trial court erred in finding that the parties' prior oral agreement did not control the disposition of the parties' remaining pre-embryo. While Jocelyn and Joshua certainly contemplated using all of the pre-embryos within the confines of an intact marriage, Jocelyn has consistently testified that they both agreed to give each pre-embryo an opportunity to be born "no matter what." Joshua—who testified after Jocelyn—did not testify to having placed any limitations or conditions on that unequivocal mandate and acknowledged that they had "agree[d] to give all the embryos a chance at life." In reliance on that agreement, and as consideration thereunder, Jocelyn:
The doctrine of qualified immunity is best known - and most notorious - for protecting police officers from being held liable even for many very egregious violations of citizens' rights. The issue came to public consciousness in the aftermath of the killing of George Floyd by Minnesota police officers in 2020. But qualified immunity also protects a wide range of other government officials. In Sterling Hotels v. McKay, a recent ruling by the US Court of Appeals for the Sixth Circuit, qualified immunity enabled a state elevator inspector to avoid Takings Clause liability for shutting down a hotel elevator for reasons not authorized by state law, as understood by the state's Elevator Safety Board. Here is an excerpt from the court's summary of the facts.
Sterling Hotels operated the Wyndham Gardens Hotel in Sterling Heights, Michigan….
On the morning of November 5, 2019, ThyssenKrupp tested the battery-lowering devices and found that they functioned as intended. Later that day, a state elevator inspector, Scott McKay, visited the Wyndham to verify that Sterling had brought the elevators into compliance. But McKay "failed" every elevator, purportedly on the ground that, in case of emergency, the elevators should have been programmed to descend to the hotel's basement—notwithstanding that it lacked an exit. Although the [Michigan Elevator Safety] Board never told Sterling to program his elevators to reach the basement, McKay sealed the elevators that same day. As a result, Sterling could no longer rent rooms on five of the Wyndham's six floors….
Sterling requested relief via email from the Board, unsuccessfully, and then brought this suit against McKay, asserting federal equal protection, takings, and due process claims…
In an opinion by Judge Raymond Kethledge, the Sixth Circuit ruled that qualified immunity protected McKay because there is no "clearly established law" saying that state officials could be held personally liable for Takings Clause violations:
Sterling next argues that McKay engaged in an unconstitutional regulatory taking when he sealed the elevators. At the time of the alleged taking, however, no court in this circuit had yet decided whether an officer could be liable for a taking in his individual capacity—which is the capacity in which Sterling sued McKay here—and at least one case suggested the contrary. See Viceroy v. Walton, 730 F.2d 466, 467 (6th Cir. 1984) ("Plaintiff cites no case, and we can find none, that suggests that an individual may commit and be liable in damages for a 'taking' under the Fifth Amendment"). McKay's potential individual liability for a regulatory takings claim was not clearly established when he sealed the elevators. That means McKay is entitled to qualified immunity on this claim.
This whole situation may seem laughable, particularly McKay's conclusion that emergency exit procedures required the elevator to be able to reach the basement, even though there is no exit from there. But it was no laughing matter to the hotel chain, which probably lost a significant amount of money - or to travelers whose reservations had to be cancelled.
To my mind, it is entirely reasonable to expect a government official to understand that severely restricting property owners' use of their land without proper legal justification might result in a takings claim. Unlike some situations involving police officers, McKay didn't have to make a split-second decision in the heat of the moment. He could have taken time to check with his agency (and its counsel) about the relevant legal issues.
I'm far from certain that the hotel would have prevailed on the takings claim. While I think this kind of regulatory restriction should indeed be considered a taking (at least in situation where it doesn't meaningfully protect public safety, and therefore doesn't fall within the "police power" exception to takings liability), current Supreme Court takings precedent arguably doesn't go that far.
Because the restriction on property rights didn't involve a physical invasion of the owner's land, did not destroy 100% of the property's economic value, and wasn't necessarily a permanent constraint, McKay's order probably doesn't qualify as a "per se" (automatic taking). It would likely be subject to the vague and overly deferentialPenn Centralbalancing test, under which it might well have been ruled not a taking. But the hotel should at least have been permitted to raise the takings issue.
I would add that the Vicory v. Walton, the 1984 case cited by the Sixth Circuit (it's Vicory, not "Viceroy," as Judge Kethledge mistakenly spelled it), isn't much of a precedent, because it was merely a denial of a petition for rehearing en banc. The ruling on the merits in that case does not address the Takings Clause, but does include a concurring opinion by Judge Bertelsman suggesting that officials can in fact be held liable for Takings Clause claims in some situations.
Whether they be cops, inspectors, or even state university professors (like the present author!), government officials should not be allowed to escape liability for constitutional violations by relying on the bogus, judicially invented doctrine of qualified immunity. On that point, see critiques of qualified immunity by leading legal scholars, such as Joanna Schwartz, and co-blogger Will Baude.
The Sixth Circuit ruling is a reminder that police are not the only state officials who can hide behind qualified immunity.
While the Sixth Circuit dismissed the takings claim based on QI, it denied McKay qualified immunity on the hotel's Due Process Clause claim. Here, there was enough "clearly established" precedent to overcome even the ridiculous requirements of QI doctrine. The due process issue has been remanded to the district court.
Yesterday the Court reversed in Mallory v. Norfolk Southern Railway Co., upholding personal jurisdiction under consent-by-registration statutes. Importantly, the Court distinguished between two different legal questions. Whether a state can use consent as a basis for personal jurisdiction is reviewed under the Due Process Clause of the Fourteenth Amendment. But whether it can offer particular inducements to secure that consent, like the right to conduct local business, is reviewed under other doctrines such as dormant commerce. Justice Alito expressed serious skepticism about Pennsylvania's law on the latter point, but he joined the majority of the Court in leaving the issue open (see footnote 3), to be decided (if at all) on remand.
All that seems quite right to me. As I've argued here before, the relevant source of law for personal jurisdiction isn't the Fifth or Fourteenth Amendments, but rules of general and international law. Taking away someone's property under a jurisdictionless judgment is a deprivation without due process, so the Fourteenth Amendment's Due Process Clause let federal courtsreview how a state had applied the general rules.
Under those rules, each state had jurisdiction over its own corporations. It also might have jurisdiction over other corporations allowed to operate within its borders, given that doing so required the state's consent. But once the Court recognized a dormant commerce right for corporations to operate across state borders, consent or no, this theory no longer worked. The doctrine changed to an amorphous notion of "corporate presence," which soon fell apart under its own weight and was replaced by International Shoe. That quieted these sorts of dormant-commerce questions for a long time, until Pennsylvania's law finally pressed the consent issue in Mallory.
So what should happen if "Mallory II," returning from remand, poses the dormant commerce problem directly?
In Brackeen, Justice Barrett repeatedly faulted counsel for Texas and the adopting families. She wanted a "theory for rationalizing this body of law," and was not willing to connect the dots plotted by the lawyers. In Moore v. Harper, Chief Justice Roberts found that counsel for the legislative defendants failed to adequately argue that the decision of the North Caroline Supreme Court violated the Elections Clause. And the failure to present this argument allowed the Court to avoid deciding what standard ought to apply to the Election Clause. Roberts wrote this argument wasn't in their briefs:
We decline to address whether the North Carolina Supreme Court strayed beyond the limits derived from the Elections Clause. The legislative defendants did not meaningfully present the issue in their petition for certiorari orin their briefing, nor did they press the matter at oral argument.
And the position was disclaimed during oral argument:
Counsel for the defendants expressly disclaimed the argument that this Court should reassess the North Carolina Supreme Court's reading of state law. Tr. of Oral Arg. 7 ("We're not asking this Court to second-guess or reassess. We say take the North Carolina Supreme Court's decision on face value and as fairly reflecting North Carolina law . . . ."). When pressed whether North Carolina's Supreme Court did not fairly interpret its State Constitution, counsel reiterated that such an argument was "not our position in this Court." Id., at 54.
Roberts even faulted counsel for pivoting to the argument during rebuttal!
Although counsel attempted to expand the scope of the argument in rebuttal, such belated efforts do not overcome prior failures to preserve the issue for review. See this Court's Rule 28 ("[C]ounsel making the opening argument shall present the case fairly and completely and not reserve points of substance for rebuttal.").
Talk about persnickety--knocking counsel for raising an argument during rebuttal. When the Chief wants to reach an issue, he will do pirouettes. When he doesn't want to reach an issue, he will don a straightjacket. The Court of late has had a very fluid approach to oral argument. Top-side counsel may hold an argument in reserve for rebuttal, or the seriatim round. But Rule 28 is still on the books.
I am going to make an unpopular prediction about the affirmative action cases. Counsel for Students for Fair Admission declined to argue that the Title VI standard was different from the Equal Protection standard. This decision was strategic. They could have argued that Title VI imposed a more stringent standard, and dicta from Grutter suggesting the standard was the same should be overruled. But they did not choose this path. I think the Court will rely on Title VI to (a) reaffirm Grutter and Bakke on stare decisis ground, (b) hold Title VI is subject to the Grutter standard because the parties did not ask the Court to apply a different standard, and (c) rule for Harvard and UNC. I know, my prediction is very uncomfortable, but there it is. I have seen far too many criticisms of prominent conservative lawyers in decisions by conservative Justices. If this outcome happens, conservative lawyers will need to have a serious moment of reflection. Having a "6-3" Court is not enough. Arguments must cohere at all levels, and more narrow relief must be sought. Yes, there is an asymmetry, but those are the rules of the road for conservative cases. Governor DeSantis is not wrong. And progressives should thank President Trump.
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