Category: General Law

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Where to Begin?

I’ll have several posts this week on the work of the Court.  Let me start by addressing King v. Burwell.

The debate over the Affordable Care Act is now closed.  Sure, some people will make noises next year about repealing the law, but that’s not going to happen.  As Justice Scalia suggested in his dissent, the ACA will probably attain the status of the Social Security Act or the Taft-Hartley Act (the latter is an interesting choice–more on that another time.)  I’ll leave the discussion of the opinions themselves to people who are more expert on statutory construction.

I do have one thought to offer about Chief Justice Roberts’s role in saving the ACA.  In 2005, Justice O’Connor retired and John Roberts was nominated as her successor.  While that nomination was pending, Chief Justice Rehnquist died and Roberts was nominated as the Chief.  I wonder if that was a fateful choice.  Would Associate Justice Roberts have voted the same way in Sebelius?  Associate Justices get a sort of herd immunity if they do not write the Court’s opinion.  They do not bear the same institutional burdens as the Chief Justice.  Now maybe any Chief Justice fill-in-the-blank nominated by President Bush would have felt the same pull to not strike down the ACA by a 5-4 vote, but that is hard to know.  Hopefully, I’ll live long enough to see the papers on the internal deliberations in Sebelius opened for scrutiny.

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FAN 65.1 (First Amendment News) Court vacates & remands three 1-A cases

When it issued its orders list today, the Supreme Court did the following:

  1. In Berger v. American Civil Liberties Union of North Carolina it granted the petition for certiorari; the judgment is vacated, and the case is remanded to the United States Court of of Appeals for the Fourth Circuit for further consideration in light of Walker v. Sons of Confederate Veterans (2015).
  2. In Thayer v. City of Worcester the petition certiorari was granted; the judgment is vacated, and the case is remanded to the United States Court of Appeals for the First Circuit for further consideration in light of Reed v. Town of Gilbert (2015), and
  3. In Central Radio Co., Inc. v. City of Norfolk the petition certiorari was granted;the judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of Reed v. Town of Gilbert (2015).

The Court’s 2014-2015 Free Expression Docket

[last updated: 6-29-15 — what remains on the docket will either be resolved at “clean up” conference this Term or dealt with in late September when the Court has a “long conference.”]

Cases Decided 

  1. Elonis v. United States (argue: 12-1-14 / decided: June 1, 2015) (8-1 per Roberts) (statutory-based ruling)
  2. Williams-Yulee v. The Florida Bar (argued: Jan. 20, 2015 / decided: April 29, 2015) (5-4 per Roberts)
  3. Walker v. Sons of Confederate Veterans (argued 3-23-15 / decided 6-18-15) (5-4 per Breyer)
  4. Reed v. Town of Gilbert (argued 1-12-15 / decided 6-18-15) (9-0 per Thomas)

Pending Petitions*

  1. Friedrichs v. California Teachers Association, et al. (4-27-15: The Court asked the Calif. AG to respond to the petition)
  2. Center for Competitive Politics v. Harris (emergency application for injunction pending Cert.)

Review Denied*

  1. Walker-McGill v. Stuart
  2. O’Keefe v. Chisholm
  3. King v. Christie
  4. Apel v. United States 
  5. Dariano v. Morgan Hill Unified School District
  6. The Bronx Household of Faith v. Board of Education of the City of New York 
  7. Arneson v. 281 Care Committee
  8. Kagan v. City of New Orleans
  9. ProtectMarriage.com-Yes on 8 v. Bowen
  10. Clayton v. Niska
  11. Pregnancy Care Center of New York v. City of New York 
  12. City of Indianapolis, Indiana v. Annex Books, Inc.
  13. Ashley Furniture Industries, Inc. v. United States 
  14. Mehanna v. United States
  15. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  16. Vermont Right to Life Committee, et al v. Sorrell

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.   

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Crisis of the Dissents Divided? — Disagreement among the Obergefell Four

imagesIn the various news feeds and pundit commentaries concerning the recent same-sex marriage case, the focus has been on the divide between the majority and dissenting opinions. Some side with the majority, others with the dissenters. Putting such differences aside for the moment, what is noteworthy is that while the Justices in the majority all spoke with one voice, the same was not true for the dissenters.

Though the judgment in Obergefell v. Hodges was 5-4, none of the four separate dissents garnered more than a total of three votes:

  • 3 votes: Chief Justice Roberts’ dissent — joined by Justices Scalia and Thomas
  • 3 votes: Justice Alito’s dissent — joined by Justices Scalia and Thomas
  • 2 votes: Justice Scalia’s dissent — joined by Justice Thomas
  • 2 votes: Justice Thomas’ dissent — joined by Justice Scalia

Notably, neither the Chief Justice nor Justice Alito signed onto any of the other dissents. Why?

The Scalia Dissent: Too confrontational?

UnknownWhile the Chief Justice and Justice Alito share many of the constitutional concerns stated by Justice Scalia (e.g., the need for judicial restraint, adherence to precedent, undermining the political process, and deference to the traditional roles of the states), they tend to be uneasy with the kind of in-your-face confrontational tone Justice Scalia employed in his unrestrained dissent.

It is a tried-and-true canon of civility: Attempt to avoid confrontational terms or phrases such as “hubris,” “egotistic,” “mummeries,” and “silly extravagances.” By that creed of civility it is unnecessarily vituperative to equate another Justice’s reasoning with “mystical aphorisms of the fortune cookie” or “pop-philosophy” or to refer to that Justice’s opinion as “judicial Putsch” – even if the seriousness of the latter is “not of immense personal importance” to you.

The Thomas Dissent: Too cabined or too natural law focused?

UnknownThe Chief Justice and Justice Alito also did not sign onto Justice Thomas’ dissent. Why? Though it is more difficult to answer this question, one explanation is a possible disagreement over the contours of due process as Justice Thomas offered it up. That is, his conservative colleagues may have been uncomfortable with Thomas’ reliance on Blackstonian notions of due process – notions perhaps too cabined for their constitutional tastes. Consider in this regard Professor Michael Dorf’s observation over at SCOTUSblog: “To the extent that Justice Thomas would allow any substantive due process, it would be for the liberty of movement only, and failing that, for no more than negative liberties. Marriage, as state recognition, would not be a fundamental right for anyone.”

And then there is Justice Thomas’ invocation of natural law and natural rights. The debate over the use and relevance of natural law has been an ongoing one in conservative circles. On that score, Chief Justice Roberts’ former boss, William Rehnquist, once found himself in the crosshairs of controversy brought on by a defender of natural law. See Harry V. Jaffa, Storm over the Constitution (1999) and his Original Intent and the Framers of the Constitution: A Disputed Question (1994) and his article “Judicial Conscience and Natural Rights,” 11 U. Puget Sound L. Rev. 219 (1987).

The Alito Dissent: Reservations about the “further decay” of marriage argument?

(drawing by Arthur Lien: courtartist.com)

(drawing by Arthur Lien: courtartist.com)

While there is much similarity between the Roberts and Alito dissents on matters such as due process, equal protection, and the specter of vilifying people of faith, both nonetheless declined to affirm the other’s dissent. What might explain the Chief Justice’s unwillingness?

Did he have some reservations about the following?: “the tie between marriage and procreation has frayed. Today, for instance, more than 40% of all children in this country are born to unmarried women. This development undoubtedly is both a cause and a result of changes in our society’s understanding of marriage. While, for many, the attributes of marriage in 21st-century America have changed, those States that do not want to recognize same-sex marriage have not yet given up on the traditional understanding. They worry that by officially abandoning the older understanding, they may contribute to marriage’s further decay.”

The Roberts Dissent: Too charitable?

(credit: WSJ)

(credit: WSJ)

If you believe (as Justice Alito seems to) that same-sex marriages may contribute to the “further decay” of marriage, then you are unlikely to be as generous of spirit as the Chief Justice was when he declared: “If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. . . .” By the same normative token, Justice Alito is not one who would appear to be inclined to say: “Many people will rejoice at [today’s] decision, and I begrudge none their celebration.”

Or what about this Roberts’ statement?: “The opinion describes the ‘transcendent importance’ of marriage and repeatedly insists that petitioners do not seek to ‘demean,’ ‘devalue,’ ‘denigrate,’ or ‘disrespect’ the institution. . . . Nobody disputes those points.” Nobody?

Here, too, speculation is more the measure than certainty.

Crisis of the Dissents Divided?

However close my speculations are to the mark, one thing is certain: there was no unanimity of thought strong enough to convince the four dissenting Justices to lend all of their names to a single opinion. Despite their strong differences with the majority opinion, they, too, had reservations about one another’s views of law and life and how those differences should be expressed.

* * * * 

(credit: NYT)

(credit: NYT)

On a related point: What are we to make of the fact that none of the four liberal Justices who signed onto Justice Kennedy’s majority opinion in Obergefell found it necessary, or desirable, to write separate concurrences? The same was true with Justices Stevens, Ginsburg and Breyer in Romer v. Evans (1996) and Lawrence v. Texas (2003), and later with Justices Ginsburg, Breyer, Sotomayor and Kagan in United States v. Windsor (2013).

One would think that these four Justices would push for a more protective conception of equal protection concerning discrimination against gays and lesbians. No? Then again, perhaps these four think the body of law tracing back to at least Romer will suffice.  And so far it has.

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Race, Love, and Promise

Sheena and Tiara Yates

Martha Ertman’s wonderful new book, Love’s Promises: How Formal and Informal Contracts Shape All Kinds of Families, is a must read for anyone concerned about families or law. Ertman’s core argument is that “contracts and deals” can play a critical role in “helping people create and sustain families.” In advancing this claim, the book – which reads like a good novel even as it maps the complex, shifting landscape of modern family law – primarily relies on Ertman’s own, very compelling story of love and parenthood. Along the way, however, it also communicates the stories of other “Plan B” families, those that Ertman describes as being formed in “uncommon” ways. In doing so, it clears important space for lawyers and non-lawyers alike to consider the experiences of all families. 

Ertman persuasively makes the case that formal and informal “exchanges . . . [already] define family life” in a host of ways, and that greater reliance on such contracts could support the formation and functioning of Plan B families, as well as their more “common,” Plan A, counterparts. As a family law professor,I am deeply sympathetic to this view.  Even more, like so many others, my personal life is comprised of a patchwork of formal and informal contracts. On one hand there is my almost twelve-year legal marriage and the enforceable post-adoption contact agreement — something Ertman would call a “PACA” — that provides for annual visitation with my younger son’s birth mother. Then, on the other hand, sit the unenforceable, but nevertheless important “deals” that I have made with family members. These include the parenting norms that my spouse and I follow in raising our two children, and the mutual vows that we made before family and friends – such as “to love your body as it ages” and “to support you in the pursuit of your dreams.” These promises both help to define and affirm the contours of our loving commitment as a couple and a family.

Nevertheless, I often found myself seeking more from the story that Love’s Promises tells about the place of contract in family life. Like the students I teach, I have some nagging questions about how well contract can work for those who, for example, lack the money to hire a lawyer to draft or defend their cohabitation agreements, or who, because of past experience with the legal system, might never think about contract as a potentially liberating force in their lives. Moreover, I wanted a more complex narrative about the operation of race and contract in the family context than the book attempts to communicate.

To be clear, Love’s Promises does not ignore the subject of race. Indeed, Ertman deserves high marks for examining topics such as Whites’ exclusion of Blacks from marriage during slavery; the forced sterilization of African American women; and the concerns about transracial adoption articulated by organizations such as the National Association of Black Social Workers in the 1970s in crafting her vision of what the rules concerning contract and love should be. But, as important as this past history is, what I most craved was deeper engagement with what increased reliance on contract would mean for issues of race and family in the future.

Laws pertaining to family have historically structured families, but also race – how it is defined, understood, and experienced — in very consequential ways. Think, for example, about antimiscegenation laws that helped to give content to the very idea of race, determining who would be regarded as black or white, slave or free. I am thus very skeptical about the notion that, without more, we can expect that a norm which encourages greater reliance on agreements — especially those that would be more than mere “deals” and thus enforceable in court – will always have an equality-enhancing effect. A newspaper article that I recently read about the efforts of a black, lesbian couple (their picture appears at the outset of this post) to expand their family helps to explain why.

Sheena and Tiara Yates, fell in love and, after their 2011 New Jersey commitment ceremony, decided that they wanted a child. They successfully had one child and later tried to become parents again. As they had the first time around, Sheena and Tiara, who legally married in 2014, used in-home insemination to conceive. To formalize their family unit and intentions, they also entered into a written contract with the known donor whose sperm they utilized. Their agreement contemplated the donor’s relinquishment of all parental rights in the new baby, something designed to permit Sheena and Tiara to parent the child they’d longed for as a unit of two.

Despite the contract, the donor subsequently brought a custody suit to challenge the agreement’s terms and, at least preliminarily, succeeded in doing so. In a decision that the Yateses are now appealing, a judge granted him parental visitation rights. In cases involving insemination, New Jersey, where Sheena and Tiara reside with their family, courts will only recognize a non-biological parent’s rights if the insemination process was carried out by a physician. Although Sheena and Tiara, according to news sources, met with a doctor and were prescribed prenatal vitamins, the actual insemination process was performed at their home, without medical assistance. Significantly, this is the second custody suit that the Yateses have had to defend. The donor for their oldest child challenged the agreement that they had with him on similar grounds and now has visitation rights with that child as well.

Race, gender, and class intersect in troubling ways in the Yates case. Admittedly, it is not contract per se that produces the potential inequality. In fact, Sheena and Tiara clearly saw contract as an important tool in growing their family. But they entered into the donor contracts described within in a particular context, one in which the medical and legal costs that attend physician-assisted fertility treatments generally remain out of reach for low and even some middle-income families, a group in which African Americans — perhaps LGBTQ Blacks most of all — are disproportionately represented. It is not hard to imagine that health care costs figured into their decision to inseminate at home or, for that matter, to use a known donor rather than an anonymous donor affiliated with a sperm bank. Add to this the potential effects of other factors, such as fact that, given past history, many African Americans mistrust doctors and medical facilities, a phenomenon that Kimani Paul-Emile discusses in her work. All of this troubles the story of contract’s ability to advance the aspirations of all families equally.

Significantly, my lament is not simply that Love’s Promises passes up an opportunity to discuss how the realities of race and structural inequality in this country might diminish the power of contract for African Americans and other groups of color in the family context. Ertman’s book also misses a chance to say something about the particular advantages that contract could offer such groups. Despite my earlier argument, my sense is that there may be some places where contract could be very effectively deployed to disrupt the effects of racial stigma and inequality, especially if paired with other tools.

Consider the example of nonmarital black families, especially those with children. Today, African Americans are the most unmarried group in the country. While the U.S. has seen declines in marriage among all groups, they have been steepest among Blacks. Interestingly, African Americans place a higher value on marriage than many other groups. Studies suggest, however, that considerations regarding financial security and other related issues may prevent them from seeing marriage as a viable option for organizing their lives. In a recent law review article in the Hastings Law Journal, I make the argument that, instead of investing in marriage promotion programs that too often ignore the structural racial inequality (e.g., poverty, school drop out rates, housing and food insecurity, and high incarceration rates) that often creates a barrier to marriage, we should work to honor and better support nonmarital black families where they stand.

When it comes to cohabiting couples, Ertman concludes that they “should be recognized as an ‘us’ in relation to one another through property-sharing rules,” such those proposed by the American Law Institute. She stops short, however, of saying that cohabitants should “be treated as an ‘us’ when it comes to institutions outside the relationship, like the IRS and the Social Security Administration.” As Ertman notes in addressing proposals advanced by other law professors, a focus on cohabitants alone won’t do much for African America, a community in which black “women . . . are three times more likely than white women never to live with an intimate partner and more likely than white women to center their lives among extended kin.” But contract might be a more effective tool if extended to nonmarital families with children, whether the parents reside together or not. This might be especially true if combined with changes in tax policy and the structure of benefits that Ertman is less comfortable making in the absence of marriage.

For reasons already articulated, I do not think that adults in poor, nonmarital black families will or should run out to find lawyers who can draft binding contracts for them. But I can still imagine a world in which a contract-based norm works to destigmatize such families by making it plain that they have structures and “deals” like many others, not just the “tangle of pathology” described in the Moynihan Report issued fifty years ago.   In such a world, even informal contracts could assist the adults in “fragile” families in negotiating the many challenges that they face and serve to reduce conflict. Further, such agreements, to the extent that they help reveal the precise terms of the negotiations in which such families already engage, might uncover the reasons that fragile black families seem to be able to navigate co-parenting better than their counterparts. They might also disrupt stereotypes about the contributions that fathers, in particular, make to such families. Despite the racialized trope of the “dead beat” dad, studies show that nonmarital African American fathers tend to be more involved with their children than nonmarital White fathers, and regularly contribute diapers and other goods as a way of providing support, even when dramatically reduced job opportunities make money scarce.

Love’s Promises helps us see the current realities of both “Plan A” and “Plan B” families, and to imagine what the future could and should be as a normative matter. I’m very grateful to Martha, the symposium organizers, and my fellow participants for helping me to think even more about the possibilities of contract in the family law context, especially where families of color are concerned. On this day, especially, when the U.S. Supreme Court has affirmed that LGBT couples are “Plan A” families in the eyes of the Constitution, I only hope that Ertman decides to write another book that builds on the important foundation that she has set.

 

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Promising Loves, Loving Promises

Martha Ertman has always been an original — in the way she crafts her legal scholarship and the way she lives her life. Love’s Promises brings the two together in compelling fashion. It starts with Martha’s visit to a fertility clinic in (of all places) Salt Lake City, where she and Victor arrange for artificial insemination and plan for the child they will have together — as a gay man and a lesbian. Over the course of the book, they enter into new relationships and Martha eventually marries Karen all while she and Victor reaffirm their commitment to the child. Their story is a fascinating read in itself — how will they do it, what happens when each enters into new partnerships, how will they reconcile their family with Martha’s Unitarian traditions, Victor’s Southern Christian roots, and Karen’s Jewish heritage, and how do they manage to raise a child together with a father who lives in Texas, two mothers in Washington, D.C., teaching stints in Seattle and summers in Provincetown? It can’t possibly work, can it? And even if a talented trio such as Martha, Victor and Karen pull it off, what does it have to do with the law?

The book’s answer is that it says a lot about the law — about the use of both formal contracts and what Martha calls unenforceable “deals” to structure family life. It also explores the law’s limits, but in ways that still makes contracts — and other individually negotiated arrangements — central to emerging definitions of family life.
The book’s publication, the month before the much-anticipated Supreme Court opinion, shows how far we have come in creating and recognizing many different kinds of families. And Love’s Promises gives important validation not just to different kinds of families, but to different kinds of arrangements within families that reflect how adults choose to live their lives. The how-to manual aspects of the book really provide a useful template that should foster more reflection as people enter and seek to preserve intimate relationships. Encouraging people to sign off on their mutual understandings at the get-go (Martha uses lots of idioms in the book, part of what give the book its wonderfully approachable flavor) should help them down the road when those mutual understandings falter. Read More

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UCLA Law Review Vol. 62, Issue 5

Volume 62, Issue 5 (June 2015)
Articles

Wills Law on the Ground David Horton 1094
Prison Abolition and Grounded Justice Allegra M. McLeod 1156
Risk Regulation, Extraterritoriality, and Domicile: The Constitutionalization of American Choice of Law, 1850–1940 Clyde Spillenger 1240
Faith-Based Intellectual Property Mark A. Lemley 1328

 

Comments

A Critique of the Secular Exceptions Approach to Religious Exemptions Colin A. Devine 1348
Restoring the Fifteenth Amendment: The Constitutional Right to an Undiluted Vote Stephanie N. Kang 1392
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Good Thing This is a Slow Week

I will be leaving for a family vacation tomorrow, and thus I doubt that I will have any instant reaction to the cases that are handed down tomorrow and Friday.  I’m not clear whether Friday will be the last day in any event.

stairway-to-heaven-1319562-m-720x340
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FAN 65 (First Amendment News) Does Justice Thomas believe in a race-hate exception to the First Amendment?

The Ku Klx Klan marched frequently in Savannah [where Clarence Thomas grew up], and Klan members dominated the police ranks of the 1930s, ’40s, and ’50s . . . Ken Foskett, Judging Thomas: The Life & Times of Clarence Thomas (2004)

As a child in the Deep South, I’d grown up fearing the lynch mobs of the Ku Klux Klan . . . . Clarence ThomasMy Grandfather’s Son: A Memoir (2007)

One has to wonder whether his vote was not at least in some measure affected by the particular license plate at issue — displaying the Confederate flag. David Cole, quoted in the National Law Journal, June 22, 2015

If you would better understand Justice Clarence Thomas’s vote in the Confederate license-plate case handed down last week, it may be helpful to turn the clock back to December 11, 2002. That was a rare moment in the modern history of the Supreme Court. For it was one of the few times that Justice Thomas spoke up during oral arguments. The case was Virginia v. Black (audio here). As revealed in the transcript of that case involving a First Amendment challenge to a state cross-burning statute, Justice Thomas expressed himself boldly when he questioned Michael Dreeben of the Department of Justice. “Thomas spoke [i]n a deep, booming, voice, shaking with emotion”:

Justice Clarence Thomas (Randy Snyder, AP)

Justice Clarence Thomas (Randy Snyder, Associated Press)

Justice Thomas: “[I]t’s my understanding that we had almost 100 years of lynching and activity in the South by the Knights of Camellia and . . . the Ku Klux Klan,  and this was a reign of terror and the cross was a symbol of that reign of terror. . . [Wasn’t] that significantly greater than [any] intimidation or a threat?”

Mr. Dreeben: “Well, I think they’re coextensive, because it is –“

Justice Thomas: “Well, my fear is, Mr. Dreeben, that you’re actually understating the symbolism [and] the effect of the cross, the burning cross. I indicated, I think, in the Ohio case, that the cross was I indicated, . . . that the cross was not a religious symbol and that it . . . was intended to have a virulent effect.  And . . .  I think that what you’re attempting to do is to fit this into our jurisprudence rather than stating more clearly what the cross was intended to accomplish and, indeed, that it is unlike any symbol in our society.”

Justice Thomas was equally forceful in his published dissent in that First Amendment case: “‘The world’s oldest, most persistent terrorist organization is not European or even Middle Eastern in origin. Fifty years before the Irish Republican Army was organized, a century before Al Fatah declared its holy war on Israel, the Ku Klux Klan was actively harassing, torturing and murdering in the United States. Today . . . its members remain fanatically committed to a course of violent opposition to social progress and racial equality in the United States.” M. Newton & J. Newton, The Ku Klux Klan: An Encyclopedia vii (1991). To me, the majority’s brief history of the Ku Klux Klan only reinforces this common understanding of the Klan as a terrorist organization, which, in its endeavor to intimidate, or even eliminate those its dislikes, uses the most brutal of methods.”

In the News

Judge Andrew Napolitano: “NAACP’s call to prosecute hate groups violates First Amendment – hate speech is protected,Bizpac Review, June 23, 2015 (Fox News video clip)

It is true, nonetheless, that Justice Thomas signed onto Justice Antonin Scalia’s majority opinion in R.A.V. v. City of St. Paul (1992). That case involved a successful First Amendment challenge to a state law prohibiting the display of a symbol that one knows or has reason to know “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” (Justice Thomas was silent during oral arguments in R.A.V.)

In his dissent in Virginia v. Black, howeverJustice Thomas sought to disassociate himself from any expansive reading of R.A.V.: “I believe that the majority errs in imputing an expressive component to the activity in question . . . (relying on one of the exceptions to the First Amendment’s prohibition on content-based discrimination outlined in R. A. V. v. St. Paul) . . . . In my view, whatever expressive value cross burning has, the legislature simply wrote it out by banning only intimidating conduct undertaken by a particular means.” But there was more here than adherence to precedent; there was the matter of understanding the nature of bigotry: “In every culture,” wrote Thomas, “certain things acquire meaning well beyond what outsiders can comprehend. That goes for both the sacred and the profane. I believe that cross burning is the paradigmatic example of the latter.”

And then there was his vote and concurrence in Capitol Square Review & Advisory Board v. Pinette (1995), wherein he wrote: “I join the Court’s conclusion that petitioner’s exclusion of the Ku Klux Klan’s cross cannot be justified on Establishment Clause grounds. But the fact that the legal issue before us involves the Establishment Clause should not lead anyone to think that a cross erected by the Ku Klux Klan is a purely religious symbol. The erection of such a cross is a political act, not a Christian one. In Klan ceremony, the cross is a symbol of white supremacy and a tool for the intimidation and harassment of racial minorities, Catholics, Jews, Communists, and any other groups hated by the Klan.”

1000Admittedly, there any number of reasons (nuanced ones) that might explain Justice Thomas’s votes in R.A.V. and Pinette, his dissent in Virginia v. Black, and his vote in the 5-4 ruling in Walker v. Sons of Confederate VeteransBut in light of that vote, and mindful of Justice Samuel Alito’s compelling dissent in Walker, one wonders: Could it be that lingering beneath all of this is some sympathy for a kind of a race-hate exception to the First Amendment? I assert nothing definitive here; I am only suggesting that there may be something in Thomas’s thinking that could allow for an exception to current First Amendment doctrine. Or consider this: Might racial bigotry be an important factor in Justice Thomas’s application of judicial formulas such as the incitement test?  In that regard, one would think that Justice Thomas might well agree with a point Justice Elena Kagan (who was in the majority) made during oral arguments in Walker:

Mr. James George: “Well, the ­­ this Court’s rule ­­ law on incitement, going back to Brandenburg v. Ohio and the Ku Klux Klan rally that this Court decided was not incitement, it ­­ is pretty thin at this point in our history, because I don’t know what the rule of incitement would be today.”

Justice Kagan: “No, but Mr. George, just the worst of the worst, whether it’s the swastika or whether it’s the most offensive racial epithet that you can imagine, and if that were on a license plate where it really is provoking violence of some kind. You know, somebody is going to ram into that car . . . .”­­

Similarly, Justice Thomas might well approve of the following statement made during oral arguments by Justice Stephen Breyer (author of the majority opinion in Walker): “Now, is there something to be said for Texas? Yes. What they’re trying to do is to prevent their official imprimatur from being given to speech that offends people.” Not just any offense, but a racial offense. It is precisely that kind of racial offense that motivates the current campaign in South Carolina to remove the Confederate flag from the state capitol grounds.

While his early votes in cases such as R.A.V. and Pinette suggest that race is not a determinative factor in Justice Thomas’s First Amendment jurisprudence, since 2002 there seems to have been shift in his view. Both his dissent in Virginia v. Black and his vote in Walker may indeed be signs of that purported shift. In the earlier, pre-Black cases, Justice Thomas voted to sustain the First Amendment claim but then voiced his disapproval of the bigoted speech at issue. In the post-Black cases, however, Justice Thomas voted to deny the First Amendment claim in such cases.

Of course, there is a good dollop of speculation here, which is therefore not beyond fair challenge. That said, sometimes it is easy to be oblivious to the obvious, to that which transcends niceties and nuances. And that something may be a key factor in Justice Thomas’s constitutional take on race-hate speech and the First Amendment. Again, I do not offer this as a hard-and-fast conclusion, but rather as something to consider — think of it as a possibility waiting to be proven.

Professor Scott Gerber

Professor Scott Gerber

Given my reservations, I invited Professor Scott Gerber, author of First Principles: The Jurisprudence of Clarence Thomas (2002), to comment on my hypothesis: “I agree with your perceptive observation about Justice Thomas’s approach to race-hate speech and the First Amendment,” he told me. “Indeed, Justice Thomas has come as close as any member of the Court ever has to accepting the Critical Race Theory approach to the issue. I have long mentioned this to my students when I teach Virginia v. Black, and I made a similar observation in a symposium essay I wrote on Justice Thomas’s First Amendment jurisprudence. The Court’s recent Confederate license plate decision provides additional support for this conclusion, and it also reminds us of how sophisticated Justice Thomas’s thinking is, especially on matters of race.”

 See Garrett Epps, “Clarence Thomas Takes On a Symbol of White Supremacy,” The Atlantic, June 18, 2015

See also Adam Clymer, “About That Flag on the Judge’s Desk,” New York Times, July 19, 1991

First Amendment Opinions by Justice Thomas

The following are the First Amendment majority opinions that Justice Thomas authored during his tenure on the Roberts Court re First Amendment free expression issues and related claims:
  1. Reed v. Town of Gilbert (2015) (vote: 9-0)
  2. Reichle v. Howards (2012) (vote: 8-0)
  3. Washington State Grange Washington State Rep. Party (2008) (vote: 7-2)

Some of his more notable separate opinions during this same period include his opinions in:

  1. McCutcheon v. FEC (2014) (concurring in the judgment)
  2. Lane v. Franks (2014) (concurring)
  3. Borough of Duryea v. Guarnieri (2011) (concurring in the judgment)
  4. Citizens United v. FEC (2010) (concurring & dissenting in part)
  5. Milavetz, Gallop & Milavetz v. United States (2010) (concurring in part & concurring in the judgment)
  6. Morse v. Frederick (2007) (concurring)
Latest Commentaries on 2014-2015 First Amendment cases

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3

Reading the Tea Leaves

I want to make an observation about the remaining cases in this Supreme Court Term. From the February sitting, there are two undecided cases.  One is King v. Burwell.  The other is the Arizona redistricting case.  There are, though, three Justices who have not written a majority opinion from that sitting.  (The Chief Justice, Kennedy, and Ginsburg).  This strikes me as odd-somebody may have lost a majority along the way in one of those cases or in one that was already decided.

By contrast, from the January sitting there is only one undecided case (The Fair Housing Act/disparate impact case), and the only Justice without an opinion from that sitting is Justice Kennedy.  So he should have that one.

5

The Bill of Rights as a Justification for Power

A point that I’ve developed in my new draft and that I’ll be discussing further in the next book is that the Bill of Rights does more to expand the power of government that to limit power.

How can that be?  While the provisions in the Bill of Rights are about limiting government, the use of the “Bill of Rights” brand to describe those provisions is rather different.  In practice, people refer to the Bill of Rights to justify government action.  It’s OK to do something, the argument goes, because there is a bill of rights.

Consider some examples:

1.  When people want to justify the exercise of emergency powers or special national security powers, they say “The Bill of Rights is not a suicide pact.”

2.  When the United States acquired colonies after the Spanish-American War, opponents of imperialism were mollified when Congress extended a “bill of rights” to the Philippines, even though that bill of rights was not the same as ours and was not observed all that much.

3.  When Franklin Roosevelt defended the New Deal, he often did so by observing that the government’s new initiatives did not violate the Bill of Rights.  Therefore, he said, those extensions of authority were perfectly fine.

In these example, the Bill of Rights is mainly a symbol.  Consider the following thought experiment.  Suppose a country were drafting a new constitution and I said that it would not include a bill of rights.  Would you be skeptical?  Probably.  Suppose, though, that this draft included all of the things you would want in a bill of rights but just called them something else or didn’t use that term.  What does the term add?