Category: General Law

1

FAN 143 (First Amendment News) The Turner Broadcasting case, Justice Kennedy & one of his then law clerks — Neil Gorsuch  

A 1990 Harvard yearbook shows Neil Gorsuch, second row from the top on the left.

Vancouver, Canada. Neil Gorsuch clerked for Justice Anthony Kennedy (earlier for Justice Byron White) during the 1993-1994 Court Term.

In that Term the Court decided Turner Broadcasting System, Inc. v. FCC (June 27, 1994). Justice Kennedy wrote the majority opinion in Turner. The issue in Turner was whether the Cable Television Consumer Protection and Competition Act’s “must carry” rules violated the First Amendment. On that score, Justice Kennedy’s opinion stressed, among other things, that “the rationale for applying a less rigorous standard of First Amendment scrutiny to broadcast regulation, whatever its validity in the cases elaborating it, does not apply in the context of cable television.” Thus, “the FCC’s oversight responsibilities do not grant it the power to ordain any particular type of programming that must be offered by broadcast stations.”

Of course, we do not know what, if any, involvement young Gorsuch might have had in the case as one of Justice Kennedy’s law clerks.  What we do know, however, is that dating back to his college days at Columbia, Neil Gorsuch had an abiding interest in the First Amendment. (Professor Eugene Volokh clerked at the Court that same Term; he worked for Justice Sandra Day O’Connor.)

Commentaries 

  • In a 1994 law review article, Professors Monroe Price and Donald Hawthorne wrote: “Driven by its fixation on content-neutrality, the Turner Broadcasting Court, far from recognizing the importance of the distinction between commercial and non-commercial broadcasters, deemed it immaterial and practically non-existent. . . . We suggest that Justice Kennedy’s rigid doctrinal approach can potentially endanger all substantive government regulation of the electrnic media, especially measures designed to aid non-commercial programmers.”
  • “The Court in Turner,” wrote Henry Geller,  “determined that the Red Lion scheme is confined to broadcasting. Cable and other new electronic delivery systems . . . come under traditional First Amendment jurisprudence. That is, they are to receive strict scrutiny First Amendment protection when the government regulation is content-based and to come under the intermediate O’Brien standard when the regulation is content-neutral.”
  • Robert Corn-Revere, who wrote on the case in 1994, noted that the “debate in Turner Broadcasting regarding the applicable First Amendment standard for cable television brought to a head an ongoing dispute of the past two decades.” Analyzing the opinion, he added that Turner “did not end the debate, [but] may mark a judicial shift toward a more traditionalist approach to electronic means of communication.” That shift came a few years later in United States v. Playboy Entertainment Group, Inc., which Corn-Revere argued. The Turner case formed a key part of Playboy’s opposition to the government’s claim that broadcast indecency standards should be applied to cable.  The Court agreed with Playboy’s position and struck down the law (Section 505 of the Telecommunications Act of 1996), focusing on the technological difference “between cable television and the broadcasting media, which is the point on which this case turns.” 

* ** * * 

 See also: FAN, #141: Judge Neil Gorsuch — the Scholarly First Amendment Jurist

→ Alex J. Harris, who clerked for Judge Gorsuch on the 10th Circuit, is now clerking for Justice Kemmedy.

Senate Judiciary Committee Members 

The Senate Judiciary Committee’s hearings on Judge Gorsuch are set for Monday, March 20th. Senator Chuck Grassley (R-Iowa) chairs the Committee. Those on the committee are:

Republicans (11): Orrin G. Hatch, Lindsey Graham, John Cornyn, Michael Lee, Ted Cruz, Ben Sasse, Feff Flake, Mike Crapo, Tom Tills, & John Kennedy.

Democrats (9): Dianne Feinstein, Patrick Leahy, Dick Durbin, Sheldon Whitehouse, Amy Klobuchar, Al Franken, Christopher A. Coons, Richard Blumenthal  & Mazie Hirono

Tomorrow in LA: First Amendment Salon on Judge Gorsuch & the First Amendment

Jim Newton of the LA Times

It will the twelfth First Amendment Salon and the first one of 2017; it will address the topic of Judge Neil Gorsuch and freedom of expression.  The salon dialoge will feature Jim Newton (acclaimed author & editor, editorial page, L.A. Times) interviewing Eugene Volokh (noted First Amendment scholar and Gary T. Schwartz Distinguished Professor of Law, UCLA). Kelli Sager (First Amendment specialist & partner, Davis Wright Tremaine) will introduce the discussants.

Tomorrow’s salon will take place at the Los Angeles offices of Davis Wright Tremaine. As always, the salon is co-hosted by Floyd Abrams Institute for Freedom of Expression at Yale Law School.

Live webcasts will be to the D.C. and New York offices of Davis Wright Tremaine with the video of the event to be posted soon on FIRE’s online First Amendment Library (see additional links to the salons below)

Call for Proposals: FIRE’s 2017 Faculty Conference (travel, lodging  & honoraria) Read More

1

Former Gorsuch clerks who went on to work for Supreme Court Justices — two of them serving this Term

If Judge Neil Gorsuch is confirmed, he will soon be working with some familiar faces — two of his former law clerks are currently clerking on the Court (for Justices Anthony Kennedy and Elena Kagan).

All in all, five sitting Justices have hired Gorsuch Clerks.

Justice Antonin Scalia hired more Gorsuch clerks (4) than any of his colleagues.

Here is the lineup of the 13 Gorsuch clerks who went on to clerk on the Supreme Court:

  • Antonin Scalia [4]  — Michael E. Kenneally (2016- then to Samuel Alito), Michael Kenneally (2015-16 Term), Eric C. Tung (2012-13 Term), Matthew S. Owen (2010-11 Term)
  • Samuel Alito [3] — Michael E. Kenneally (1st with Scalia), Lucas Walker (2015-16 Term), Michael H. McGinley (2014-15 Term)
  • Elena Kagan [2] — Gerard J. Cedrone (2016-17 Term), Jason C. Murray (2013-14 Term),
  • Clarence Thomas [2] — Katherine C. Yarger  (2013-14 Term), Allison B. Jones (2010-11 Term)
  • Sonia Sotomayor [1] — Jane E. Kucera (2011-12)
  • Anthony Kennedy [1] —  Alex J. Harris (2016-17 Term)
0

FAN 142 (First Amendment News) 8th Cir. Upholds 1st Amendment challenge to trademark licensing rule

 

Paul Gerlich & Erin Furleigh (credit: FIRE)

Seattle. “Then-students Paul Gerlich and Erin Furleigh were officers with Iowa State University’s chapter of the National Organization for the Reform of Marijuana Laws (NORML ISU) when they filed their lawsuit in July 2014, through the Foundation for Individual Rights in Education’s (FIRE’sStand Up For Speech Litigation Project. The group had multiple T-shirt designs rejected by the university and was subject to unusually heavy, politically motivated scrutiny when applying to use ISU logos under the school’s trademark policy.”

Yesterday, “the Eighth Circuit held that ISU administrators had engaged in unconstitutional viewpoint discrimination, violating Furleigh and Gerlich’s First Amendment rights.” (FIRE press release)

The case is Gerlich v. Leath, which was handed down by a three-judge panel of Eight Circuit. The opinion for the court was written by Judge Diana E. Murphy. Here is how it opens:

Judge Diana Murphy

“Iowa State University (ISU) grants student organizations permission to use its trademarks if certain conditions are met. The ISU student chapter of the National Organization for the Reform of Marijuana Laws had several of its trademark licensing requests denied because its designs included a cannabis leaf. Two members of the student group subsequently filed this 42 U.S.C. § 1983 action, alleging various violations of their First and Fourteenth Amendment rights. The district court granted plaintiffs’ summary judgment motion in part and entered a permanent injunction against defendants. Defendants appeal, and we affirm.”

In deciding the case, the court ruled that the ISU NORML chapter had Article III standing to sue under both Rosenberger v. Rector & Visitors of Univ. of Va. (1995) and Widmar v. Vincent (1981).

The court held that the government cannot grant or withhold government benefits based on officials’ political preferences — including use of trademarks. It drew a clear line against expansion of the “government speech” doctrine to matters involving student speech on university campuses. — Robert Corn-Revere (lead counsel for Plaintiffs)

Limited Public Forum Issue: The court then sustained the Plaintiffs’ motion for summary judgment on their as applied First Amendment challenge. In that regard, Judge Murphy noted: ‘If a state university creates a limited public forum for speech, it may not “discriminate against speech on the basis of its viewpoint.’ Rosenberger. A university ‘establish[es] limited public forums by opening property limited to use by certain groups or dedicated solely to the discussion of certain subjects.’ Christian Legal Soc. Chapter of the Univ. of Cal. v. Martinez (2010). A university’s student activity fund is an example of a limited public forum. See Rosenberger. ISU created a limited public forum when it made its trademarks available for student organizations to use if they abided by certain conditions.”

Lisa Zycherman (one of Plaintiffs’ lawyers)

Viewpoint Discrimination: “The defendants’ rejection of NORML ISU’s designs,” she added, “discriminated against that group on the basis of the group’s viewpoint. The state engages in viewpoint discrimination when the rationale for its regulation of speech is ‘the specific motivating ideology or the opinion or perspective of the speaker.’ Rosenberger.”

“. . . . The instant facts are somewhat similar to those in Gay & Lesbian Students Ass’n v. Gohn (8th Cir. 1988). In that case, the University of Arkansas made funding available to student groups but denied funding one advocating for gay and lesbian rights. We concluded that the university had engaged in viewpoint discrimination.  In reaching this conclusion our court relied on the fact that the university followed an unusual funding procedure that was specific to the gay and lesbian group, some of the decision makers ‘freely admitted that they voted against the group because of its views,” and ‘[u]iversity officials were feeling pressure from state legislators not to fund’ the group. Id.

The court rejected ISU’s denials that its actions were politically motivated. The court pointed to e-mail communications among school officials that showed they reacted within hours of receiving inquiries from legislative staff and political appointees. ISU’s President, Steven Leath, testified at his deposition that he was concerned about “political public relations implications” of the NORML ISU t-shirt designs, and “my experience would say in a state as conservative as Iowa on many issues, that [it] was going to be a problem.”  Leath also testified that “anytime someone from the governor’s staff calls complaining, yeah, I’m going to pay attention, absolutely.”

Ronald London (one of Plaintiffs’ lawyers)

Government Speech Claim: Finally, the Court rejected ISU’s claims that the administration of the trademark licensing regime should be considered government speech. The government speech doctrine does not apply if a government entity has created a limited public forum for speech, wrote Judge Murphy relying on Pleasant Grove City. As noted above, she added, “ISU created a limited public forum when it made its trademarks available for student organizations to use if they abided by certain conditions. The administration of its trademark licensing regime therefore did not constitute government speech.”

“Even if the trademark licensing regime here did not amount to a limited public forum, however, the government speech doctrine still does not apply on this record. . . . [Even when analyzed under the three-factors announced in Walker v. Tex. Div., Sons of Confederate Veterans, Inc. (2015), those] factors taken together would not support the conclusion that the speech at issue in this case is government speech because ISU does not use its trademark licensing regime to speak to the public.”

Lawyers for the Plaintiffs: Robert Corn-Revere, Ronald London & Lisa Zycherman.  Local counsel was Mike Giudicessi.

Three of Professor Eugene Volokh’s students — Ian Daily, Eric Sefton and Sydney Sherman — and Volokh filed an amicus brief on behalf of the Student Press Law Center arguing in favor of this result.

Headline: “Breitbart’s Milo Yiannopoulos inspires Tennessee ‘free speech’ bill” Read More

0

Hibernation Time

Today I got the tap on the shoulder from my publisher saying that the clock has started to run for the next round of edits on my Bill of Rights book.  So I’ll be posting less frequently for the next month or so.

2

The Ninth Census and the Fourteenth Amendment

In prior posts I’ve outlined part of my argument that the laws regulating the apportionment of representatives among the states violate Section Two of the Fourteenth Amendment.  Before getting back to explaining that analysis and some of my research, I thought I’d discuss this fun find.

The first census conducted after the Fourteenth Amendment was ratified was run in 1870 by the Department of the Interior. In the instructions given to the census takers, they were asked to count the number of men who were citizens and over the age of 21 who were unable to vote pursuant to the language of Section Two. Here was the explanation given in those instructions:

Many persons never try to vote, and therefore do not know whether their right to vote is not abridged. It is not only those whose votes have actually been challenged, and refused at the polls for some disability or want of qualification, who must be reported . . . but all who come within the scope of any State law denying or abridging suffrage to any class or individual on any other ground than participation in rebellion, or legal conviction of crime. Assistant Marshals, therefore, will be required carefully to study the laws or their own States in these respects, and to satisfy themselves, in the case of each male citizen of the United States above the age of twenty-one years, whether he does or does not come within one of these classes.

5

FAN 141 (First Amendment News) Judge Neil Gorsuch — the Scholarly First Amendment Jurist

Free speech works; it works better than any form of censorship or suppression; and in exercising vigorously, the truth is bound to emerge. — Neil Gorsuch (1986)

Last Saturday’s march was more a demand for the overthrow of American society than a forum for the peaceable and rational discussion of these people and events. — Neil Gorsuch (1987)

Judge Neil Gorsuch

Seattle — “Judge Gorsuch is a serious, accomplished jurist who will defend a robust First Amendment.” There is truth there, in David Keating‘s assessment of the First Amendment opinions of Judge Neil Gorsuch. As the epigraph quote reveals, there was a free-speech sentiment in the mix of the man that traced back at least to his college days at Columbia University. To draw again from that time: Columbia  University “has a responsibility to make the political, philosophical, and ethical experience here as diverse and varied as the cultural and ethnic experience,” he wrote.

If one scans what we now know of the arc of Judge Gorsuch’s views on the First Amendment and free expression, it is readily apparent than he has long and informed commitment to the First Amendment. Should that continue, and it seems likely to, he could well become the First Amendment point-person on the Court.

Wasn’t the First Amendment written for the explicit purpose of protecting dissenting voices, allowing them the freedom to ‘recruit’ others to their opinions? Don’t we call this the marketplace of ideas — implying that ideas are bought by converts and sold by believers, thus using the very language of recruitment? Free speech is dangerous to dictators because it promises to recruit opposition; effective free speech is the best recruiting policy. — Neil Gorsuch (1987)

The Judge as Scholar 

Whatever one thinks of Judge Gorsuch’s jurisprudence overall and his free-speech jurisprudence in particular, which is sketched out below, one thing is undeniable: he is jurist who values the scholarly virtues and someone who appreciates the value of nuance.  Moreover, there is a welcome clarity in his First Amendment free-expression opinions, which is unusual in a decisional law world bogged down by unnecessary ambiguity.

Professor Eugene Volokh (who co-clerked with Gorsuch at the Supreme Court) agrees: “Neil Gorsuch is an excellent judge, who consistently produces readable, careful, thoughtful, even scholarly opinions.”

Only in an atmosphere where all voices are heard, where all moral standards are openly and honestly discussed and debated, can the truth emerge. — Neil Gorsuch (1987)

Highlights of Free-Speech Opinions Authored by Judge Gorsuch 

Right of Petition: “We write today to reaffirm that the constitutionally enumerated right of a private citizen to petition the government for the redress of grievances does not pick and choose its causes but extends to matters great and small, public and private. Whatever the public significance or merit of Mr. Van Deelen’s petitions, they enjoy the protections of the First Amendment.” (Van Deelen)

More on the Right of Petition: “[T]he right of a private citizen to seek the redress of grievances is not limited to matters of ‘public concern . . . .” (Van Deelen)

The Promise of Self-Government: “The promise of self-government depends on the liberty of citizens to petition the government for the redress of their grievances. When public officials feel free to wield the powers of their office as weapons against those who question their decisions, they do damage not merely to the citizen in their sights but also to the First Amendment liberties and the promise of equal treatment essential to the continuity of our democratic enterprise.” (Van Deelen)

Right to Petition & the Sons of Liberty: “to petition the government for the redress of tax grievances . . . has been with us and clearly established since the Sons of Liberty visited Griffin’s Wharf in Boston. Defendants respond by pointing us again to the line of cases from Kansas district courts, arguing that it ‘muddied the water’ sufficiently that a reasonable official would not have known that private citizens have a First Amendment right to petition on private as well as public matters. But every case discussing the public concern test in the Supreme Court has made pellucid that it applies only to public employees.” (Van Deelen)

Public Employess & Matters of Public Concern: “The public concern test . . . was meant to form a sphere of protected activity for public employees, not a constraining noose around the speech of private citizens. To apply the public concern test outside the public employment setting would require us to rend it from its animating rationale and original context.” (Van Deelen)

Campaign Contribution Cases: “political campaigns implicates a ‘basic constitutional freedom,’ one lying ‘at the foundation of a free society’ and enjoying a significant relationship to the right to speak and associate—both expressly protected First Amendment activities.” (Riddle)

Level of Scrutiny in Campaign Contribution Cases: “the Court has yet to apply strict scrutiny to contribution limit challenges—employing instead something pretty close but not quite the same thing.” (Riddle)

First Amendment & Equal Protection Intersection: “Of course, all these teachings have come in the context of First Amendment challenges to contribution limits—and in this appeal we are asked to decide a Fourteenth Amendment claim. In the Fourteenth Amendment’s equal protection context, the Supreme Court has clearly told us to apply strict scrutiny not only to governmental classifications resting on certain inherently suspect grounds (paradigmatically, race) but also governmental ‘classifications affecting fundamental rights.'” (Riddle)

Defamation: “Can you win damages in a defamation suit for being called a member of the Aryan Brotherhood prison gang on cable television when, as it happens, you have merely conspired with the Brotherhood in a criminal enterprise? The answer is no. While the statement may cause you a world of trouble, while it may not be precisely true, it is substantially true. And that is enough to call an end to this litigation as a matter of law.” (Bustos)

Defamation & Misstatements: “But to say that the misstatement must be material only raises questions of its own — material to whom? And for what purpose? The answer to these questions takes us back to and can be found in the interest the American defamation tort is intended to protect — the plaintiff’s public reputation. Because this is the particular purpose the defamation tort is aimed at, we assess the materiality of a misstatement by comparing the damage it has done to the plaintiff’s public reputation to the damage the truth would have caused. . . . By requiring a significant impact on the plaintiff’s public reputation when compared to the truth, the material falsehood requirement works as a screen against trivial claims.” (Bustos)

Parody & Defamation: “[Per the law in our Circuit,] the First Amendment precludes defamation actions aimed at parody, even parody causing injury to individuals who are not public figures or involved in a public controversy.”  (Mink)

Parody & Matters of Private Concern: “[T]he Supreme Court has yet to address how far the First Amendment goes in protecting parody. And reasonable minds can and do differ about the soundness of a rule that precludes private persons from recovering for reputational or emotional damage caused by parody about issues of private concern. One might argue, for example, that such a rule unnecessarily constitutionalizes limitations that state tort law already imposes. . . . Or that such a rule may unjustly preclude private persons from recovering for intentionally inflicted emotional distress regarding private matters, in a way the First Amendment doesn’t compel. See, e.g., Catherine L. Amspacher & Randel Steven Springer, Note, Humor, Defamation and Intentional Infliction of Emotional Distress: The Potential Predicament for Private Figure Plaintiffs, 31 Wm. & Mary L.Rev. 701 (1990); Robert C. Post, The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell, 103 Harv. L.Rev. 601, 662 (1990) (arguing that the First Amendment does not “absolutely protect[] all verbal means of intentionally inflicting emotional distress, all forms of racial, sexual, and religious insults, so long as the offending communications do not contain false factual statements”).” (Mink)

“He was not an ideologue,” said M. Adel Aslani-Far, a former writer and editor for the [Columbia Spectator]. “At his core was that things should be thought through and presented and argued, not in a confrontational sense, but in the lawyer-judge sense.”

 First Amendment Free-Speech & Right of Petition Opinions Authored by Judge Gorsuch

  1. Riddle v. Hickenlooper, 742 F. 3d 922 (10th Cir., 2014) (Gorsuch, J. concurring)
  2. Bustos v. A & E Television Networks, 646 F.3d 762 (10th Cir. 2011) (libel and privacy)
  3. Mink v. Knox, 613 F.3d 995 (10th Cir. 2010) (Gorsuch, J. concurring) (searches of work product)
  4. Van Deelen v. Johnson, 497 F. 3d 1151 (10th Cir. 2007)

Free Expression-Related Opinion Authored by Judge Gorsuch 

  1. A.M. v. Holmes850 F.3d 1123 (10th Cir., 2016) (Gorsuch, J., dissenting) (contesting validity of arrest of 7th-grade student who traded fake burps in class)

 Free-Speech-Related Opinions in Which Judge Gorsuch Joined

  1. Doe v. Shurtleff, 628 F.3d 1217 (10th Cir. 2010) (sex offender disclosure law uphelod over 1-A challenge)
  2. Cory v. Allstate Ins.583 F.3d 1240 (10th Cir., 2009) (denying defamation claim)
  3. Meshwerks, Inc. v. Toyota Motor Sales USA, Inc, 528 F. 3rd. 1258 (10th Cir., 2008) (applying “idea/expression dichotomy” in copyright law case)
  4. Alvarado v. KOB-TV, 493 F.3d 1210 (10th Cir. 2007) (rejecting emotional distress & privacy claims)
  5. Anderson v. Suiters, 499 F.3d 1228 (10th Cir. 2007) (rejecting right of privacy claim against media Ds.)

The above compilation was based in part on the case listings and analysis contained in David Keating’s Make the First Amendment Great Again? Trump’s Potential Supreme Court Nominees’ Views on Free Speech, Center for Competitive Politics.

Commentators on Judge Gorsuch & His Free-Speech Jurisprudence

Marjorie Heins

Marjorie Heins: “However questionable his views may be on other civil rights and civil liberties issues, Judge Gorsuch’s opinions have demonstrated a firm commitment to First Amendment freedom of speech.”

“President Trump, who has frequently displayed his hostility to free speech and who reportedly has a very short attention span, probably did not read Judge Gorsuch’s First Amendment opinions; if he had, he might not have nominated him.”

David Keating

David Keating: “Judge Gorsuch’s record suggests he will be a strong defender of free speech rights if confirmed to the Supreme Court. He wrote or joined opinions on a wide variety of topics related to free speech, including campaign finance, petition clause and defamation cases. Each time, he ruled for free speech. He applies real scrutiny in constitutional challenges and is a terrific writer. Not only are his opinions a joy to read, they are clear.”

“It’s ironic that President Trump nominated a judge who wrote or joined four opinions in cases brought against the media. Each time Gorsuch ruled for the media defendants.”

News Items & Commentaries re Judge Gorsuch & Free Speech

  1. Aidan Quigley, At Columbia, Gorsuch blasted progressive protesters, defended free speech, Politico, Feb. 1, 2017
  2. Reporters Committee for Freedom of the Press, Special report on Supreme Court nominee Neil Gorsuch, Feb. 2017
  3. David Keating, Judge Neil Gorsuch’s First Amendment Decisions Show Respect for Free Speech, The Insider, Jan. 27, 2017

The Court’s 2016-2017 First Amendment Free Expression Docket Read More

2

Section Two and the Political Question Doctrine

Let’s assume I can convince you (which I haven’t yet) that the federal apportionment statutes are unconstitutional because they ignore Section Two of the Fourteenth Amendment. Still, is that a political question that is not justiciable? If so, then my next paper won’t be of much practical value.  I think, though, that Section Two does not present a political question even though there are three or four lower federal court opinions (all more than fifty years old) saying that it does.

First, the only Supreme Court case where a Section Two claim was presented rejected that claim on the merits.  In McPherson v. Blacker, the Court held that state legislatures have broad authority to determine the method used to choose presidential electors. One of the issues that was addressed was whether Section Two of the Fourteenth Amendment limited that power directly, and the Court said no.  (So did the Michigan Supreme Court in the decision below.) There was no suggestion that Section Two raised a political question.  As a result, the subsequent lower court decisions that went the other way (none of which cite Blacker) are, in my view, just wrong on this point.

Second, these lower court decisions all predate Baker v. Carr (which reformulated the political question doctrine) and all involved Section Two in a collateral way that is distinguishable from the kind of challenge that I am contemplating.  In one Second Circuit decision, a man convicted for refusing to answer census questions argued that the census was unconstitutional because it did not ask questions about voting eligibility pursuant to Section Two.  The Court affirmed the conviction saying that Section Two presented a political question, but another way of looking at the case was that the entire census is not invalid (and the duty to respond is not erased) no matter what you think of Section Two.  In a D.C. Circuit case, a man convicted of failing to respond to a subpoena from the House of Representatives argued that the subpoena was invalid because that Congress was not elected consistent with Section Two. The Court rejected that with a political question argument, but on the merits that claim was very weak (what about every statute enacted by that Congress–was that also invalid?) And in a Fourth Circuit case, a man who was not allowed to run for Congress in Virginia argued that the state was not entitled to the number of representatives because of its poll tax.  Once again, this was called a political question, but on the merits no court was going to take this seriously at a time when the poll tax was adjudged constitutional (in 1945).

Third, there is a big difference between saying that something is not justiciable and that there should just be significant deference given by courts on the merits.  My view is that Congress cannot bar consideration of Section Two of the Fourteenth Amendment as it currently does. Once some consideration is permitted, though, then exactly how that is done or what standards are used rest within Congress’s discretion with few exceptions.  The Court has ruled on other cases involving the apportionment process for the House of Representatives and deferred to what Congress did–the same would probably be true here.

Tomorrow I’ll go back to the statutes are try to tie this together.

UPDATE:  Now I’m not so sure that the McPherson part of this post is correct.  The better reading may be that no Section Two claim was presented in that case.  I need to obtain the briefs, which will take some time.

10

Section Two of the Fourteenth Amendment and the Census

My research into the reapportionment process is still ongoing, and I’ve been working through the following problem:  Is the Commerce Department’s failure to undertake a Section Two review as part of its reapportionment duty unlawful or is it the result of an unconstitutional statute?

One way of thinking about the issue is that Congress delegated its Section Two authority to the Commerce Department in the relevant statutes, but the Department has refused to exercise that power and perform its designated function. Here is the most straightforward argument on that score–2 U.S.C. Section 6 provides:

Should any State deny or abridge the right of any of the male inhabitants thereof, being twenty-one years of age, and citizens of the United States, to vote at any election named in the amendment to the Constitution, article 14, section 2, except for participation in the rebellion or other crime, the number of Representatives apportioned to such State shall be reduced in the proportion which the number of such male citizens shall have to the whole number of male citizens twenty-one years of age in such State

This statute was enacted by Congress in 1872 and closely follows the language of Section Two. Since the Commerce Department has never tried to apply this provision or examined whether it should be applied, perhaps the answer is that the Department is just not following the statute.

But this analysis is not so straightforward. There is a strong case that 2 U.S.C. Section 6 is unconstitutional because of its use of the word “male.” Though this is what Section Two says, a statute that says makes an explicit distinction based on sex must satisfy heightened scrutiny under the Equal Protection Clause. 2 U.S.C. Section 6 cannot meet the standard, especially given that the choice of the word male in the Fourteenth Amendment rested in large part on the fact that no state allowed women to vote. Thus, the Commerce Department is probably right in declining to enforce this law or collect “male-only data” out of concern that they would be acting unconstitutionally.

What about the other statutes that govern reapportionment? More on that next week.

2

Some Thoughts on Judge Gorsuch’s Nomination

A colleague of mine once said that in the first half of your career you are trying to figure out what is right. In the second half, you are trying to convince everyone that you are right. I guess I’m still in the first stage, and in that spirit I want to make some observations about Judge Gorsuch. (For the record, I think that he should be confirmed by the Senate.)

First, I think that his nomination shows that originalism is alive and well.  After Justice Scalia died, some people (like Eric Posner) declared that philosophy dead on the assumption that nobody else who cared about interpreting the Constitution in that way would be confirmed. He was wrong. The elevation of Judge Gorsuch does not make the Court an originalist institution, of course, but there could be more Trump appointments in the coming years–you never know.

Second, administrative law is poised for some major changes.  Over on Balkinization they just held an online Symposium in Adrian Vermeule’s new book Law’s Abnegation, which states as its central thesis:

Ronald Dworkin once imagined law as an empire and judges as its princes. But over time, the arc of law has bent steadily toward deference to the administrative state. Adrian Vermeule argues that law has freely abandoned its imperial pretensions, and has done so for internal legal reasons.

In area after area, judges and lawyers, working out the logical implications of legal principles, have come to believe that administrators should be granted broad leeway to set policy, determine facts, interpret ambiguous statutes, and even define the boundaries of their own jurisdiction. Agencies have greater democratic legitimacy and technical competence to confront many issues than lawyers and judges do. And as the questions confronting the state involving climate change, terrorism, and biotechnology (to name a few) have become ever more complex, legal logic increasingly indicates that abnegation is the wisest course of action.

As Law’s Abnegation makes clear, the state did not shove law out of the way. The judiciary voluntarily relegated itself to the margins of power. The last and greatest triumph of legalism was to depose itself.

So this confident argument does not look so convincing now.  Judge Gorsuch has openly called for Chevron to be cut back or overruled, and he’s not the only one on the Court who feels that way.  Are there five votes to gut Chevron once he is confirmed?  I doubt it, but who knows.

One way of thinking about these two points is that a little intellectual humility goes a long way. The other is that when everybody says buy, it’s probably time to sell.

 

 

 

4

The Twenty-Fifth Amendment and Mental Illness

There is a fantasy making the rounds that the Twenty-Fifth Amendment will be invoked to remove the President from office because he is “unable” to discharge his duties.  This is just one of the many silly attempts to find a constitutional silver bullet to avoid the reality that there will be four years of this Administration (rogue electors, Emoluments Clause, impeachment, etc.).

Still, I came across an interesting article by Robert Gilbert that was published in 2010 by Fordham Law Review.  He pointed out, which I didn’t know, that at least two Presidents suffered from severe depression in office due to personal tragedies.  One was Franklin Pierce, whose son was killed in a train accident shortly before the Inauguration. The other was Calvin Coolidge, whose son died from a freakish staph infection after playing tennis at the White House.  Indeed, Coolidge’s passivity in office may have had less to do with ideology and more to do with grief and disinterest in work after his son’s death. In neither case, of course, was there a constitutional mechanism available for the President to step aside temporarily or be permanently relieved of his duties (short of impeachment). Even now, one can see that a comparable situation would present some really challenging problems that are different from the standard thought that a president could be physically disabled.