Here’s my write-up from this morning’s oral argument, also available at the ABA Journal. Meanwhile, three hours of sleep, a morning full of arguments, and an afternoon full of classes conspired against my vox populi column. I’ll have it up by the end of the week. Enjoy!
Inside the Supreme Court this morning, one thing was clear: the City of Chicago got hosed.
A majority of the justices in today’s oral argument in Lewis v. City of Chicago seemed ready to hold in favor of a class of black applicants to the Chicago Fire Department who seek the nullify a qualification test introduced in 1996 that disparately impacted their employment opportunities under Title VII of the Civil Rights Act. After the test results came out, Chicago announced its intention to hire its firefighters from the applicants it deemed “well qualified,” or those who scored over 89% on the exam. Problem was, whites comprised the vast majority of the “well qualified” applicants. The black firefighters the city deemed “qualified,” or scoring between 65%-89% on the exam, filed their EEOC claim when Chicago made its second round of hirings solely from the “well qualified” group.
Because Chicago conceded in subsequent litigation that the test results did disparately impact the plaintiffs, the sole question before the Court today was whether the plaintiff class filed its complaint with the EEOC in a timely fashion. Chicago maintains that the sole discriminatory event took place when the city announced the test results, and that the firefighters failed to file their job discrimination claim within governing Title VII provision’s 300 day limit. The firefighters, meanwhile, contend that the 300 day limit applied to each of Chicago’s subsequent uses of the exam results.
In a surprising turn, three members of the five-justice conservative majorities in Ledbetter and Ricci–between the facts of which Lewis seems a lovechild–seemed to agree with the firefighters’ statutory interpretation. Indeed, they spent much of their time this morning making Benna Ruth Solomon, council for the City of Chicago, drink from a firehose.
Justice Alito’s questions suggested that he still felt the burn from the public’s scorn over his authoring Ledbetter in 2007, his first term on the bench. In Ledbetter, which Congress overturned by passing the Lilly Ledbetter Fair Pay Act of 2009, the Court held that a Goodyear Tires Plant worker was time-barred from suing for sex discrimination under Title VII even though the statute of limitations had run before she could have possibly known that her company had been systematically paying her less than her male colleagues.
This time, however, Alito showed no sign of Ledbetter‘s impractical formalism. Instead, he rejected Solomon’s contention that the black applicants knew they were rejected when the scores were announced, and therefore missed their shot at a remedy:
Someone getting a letter that you sent to people who were qualified didn’t know that [they were rejected]. The only thing that I see that you sent to the people who fell into the qualified category was that it was unlikely, which I take it means less than 50 percent, that they would be called for further processing, but it was possible they would be called for further processing. You didn’t tell them anything about — you didn’t tell them that you were going to fill all of your available positions with people who were classified as well-qualified in that letter, did you?
While Alito showed that he learned his Ledbetter lesson, Chief Justice Roberts sought to limit Ricci‘s backdraft. Justice Ginsburg led the charge by asking why Chicago couldn’t have just set the cutoff at 65% rather than 89%, effectively kicking down the door between the exam’s discriminatory classifications. Then Chief Justice Roberts dumped cold water all over Solomon’s hope that the Court would extend its colorblind Ricci approach to Lewis:
You’ve got to — I mean, you have just got to take your — get as good legal advice as you can, and determine is it — are we going to be in more trouble if we follow the test or more trouble if we — if we take it down?
People have to do that all the time. You know, well, if I do this, I’m going to be in trouble; if I do this, I’m going to — but I have got to decide what I should do.
Roberts implied that had Chicago only thrown out the exam, the city would be in Ricci territory, where white members of the “well qualified” group could have sued and prevailed for “reverse discrimination.” Of course, Chicago would have lost in that case, too, but at least they’d get to keep the test despite its disparate impact, as New Haven did. Instead, Chicago continued to use the exam and, in doing so, lost the Chief Justice’s sympathy.
And it was with that term, “use,” that Justice Scalia’s stopped, dropped, and rolled all over Chicago. Not one to drift into pragmatics as Alito and Roberts had, Scalia lets his textualism trump his antagonism to disparate impact laws:
How do you — the problem I have with all of this — it makes entire sense, except when you read subpart (k) [of Title VII's section 706], it says an unlawful employment practice based on disparate impact is established if a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race.
Solomon did all she could to tell the justices that if they only read the provision in the context of the entire statute, they’ll see the case her way. But the justices didn’t seem to be buying it. When John Payton, the firefighters’ counsel and head of NAACP’s Legal Defense Fund, took to the lectern for his rebuttal, he concluded, with the justices’ silent assent, that the firefighters could challenge the discriminatory exam within 300 days of its every use by the City of Chicago.
We noted with interest reports that subsidiaries of foreign corporations from across the globe have launched a lobbying campaign in Washington to protect their newfound power to influence American elections under theCitizens United case. About 160 of these U.S. subsidiaries of foreign-owned or controlled corporations are involved in a lobbying group trying to stop President Obama and Congress from enacting limits on their spending in political campaigns. Worse still, the lobbyist leading the effort refused to disclose all the companies involved in the lobbying campaign. But it appears that the group of companies has the potential to spend hundreds of millions of dollars to influence American elections. [...]
Some have argued that Citizens United will not increase foreign influence, but they are mistaken. The four Justice dissent, authored by Justice Stevens, specifically pinpoints the fact that the majority opinion opens the door to foreign influence — see page 33 and page 75. The majority openly acknowledged that foreign influence could pose a potential issue here, as did the lawyer for Citizens United. [...]
Others assert that subsidiaries of foreign companies already spend millions on independent expenditures and so the Citizens United decision will make no difference. That misses the point. The electioneering communications law that was struck down restricted corporate ads naming elected officials in the crucial 60 days before general elections and 30 days before primary elections. Now those corporations can spend freely on those ads during the most critical periods in elections and the express message can be to vote for or against a named candidate. That constitutes an enormous expansion of corporate power to influence elections.
Others claim existing law is sufficient to protect against foreign influence in our elections. That too is wrong. Although the Federal Election Commission (FEC) restricts foreign nationals from spending or directing spending in American elections, it does not prohibit corporations in which foreign nationals are shareholders or hold significant sway or de facto control from making such expenditures. For example, foreign-controlled corporations making independent expenditures cannot be relied upon to make decisions contrary to the political interests or preferences of their owners. Before Citizens United, these problems did not exist at the federal level since the corporations themselves were limited in what they could do regardless of whose money or influence was behind them. But now that restriction is no more. Accordingly, because of these realities of how foreign control can operate, a stronger rule is needed to protect our domestic politics from foreign influence.
Present at tonight’s State of the Union address: Chief Justice Roberts and Justices Kennedy, Alito, Ginsburg, Breyer, and Sotomayor–who put on her neck doily for the occasion.
Last week, the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.
NYT’s The Caucus blog agreed with Alito:
But in his majority opinion in the case, Citizens United vs. the Federal Election Commission, Justice Anthony Kennedy specifically wrote that the opinion did not address the question of foreign companies. “We need not reach the question of whether the government has a compelling interesting in preventing foreign individuals or associations from influencing our Nation’s political process,” he wrote. The court held that the First Amendment protected the right of American corporations to spend money on independent political commercials for or against candidates. Some analysts or observers have warned that the principle could open the door to foreign corporations as well.
Here’s more from Politifact.com. So let’s not be so fast to call this Alito’s “Joe Wilson Moment.” Last year Wilson had no proof to shout that Obama lied. Even if Alito broke from the justices’ traditional SOTU decorum, he certainly knows what Kennedy’s majority entailed and what it didn’t, however it may have been characterized by Stevens in his dissent.
For the Justices’ actual words on foreign companies’ contributions, see Kennedy’s opinion at pp. 46-47 and Stevens’s dissent at pp. 33-34.
UPDATE: Alito’s break with decorum made it to Wikipedia for a split second (h/t Scott Hechinger, NYU 3L):
During Barack Obama’s January 27, 2010 State of The Union Address, Justice Alito can be seen shaking his head in the negative and uttering the words “That’s Not True.”
Also, Ben Smith at Politico has the stand-alone scene.
Justice Alito @ Georgetown/Seton Hall game. Alito’s a former Seton Hall professor, so he’s rooting against my law school. I’d take umbrage, but I hope to be in that same stadium, also rooting against my law school, on January 30.
Said commentator Len Elmore, a 1974 University of Maryland All-American and 1987 Harvard Law School grad: “He’s seated to the right of center court.”
Conservative principles of law-and-order and limited government clashed this morning in United States v. Comstock. At issue was the constitutionality of 18 U.S.C. § 4248, which provides for the federal government’s civil commitment of sex offenders after they have served out their full sentences in federal prisons.
On the one hand, section 4248 keeps off the streets convicted sex offenders deemed by federal authorities to be a continuing threat when they otherwise would be released back into the state where they committed their offense. This much seems wise: if a state is unwilling to exercise its police and public welfare powers by rehabilitating its violent sexual offenders upon their release from federal prisons, the federal government surely shouldn’t just let those deemed a continuing danger to society roam free among, well, society. This is the United States’ position in Comstock.
On the other hand, section 4248 relies on provisions of the constitution that may not authorize such federal action, however wise or well-intentioned. Specifically, Comstock argues that the Commerce Clause and the Necessary and Proper Clause of Article I, both relied upon by Congress in creating section 4248, do not cover civil commitment of criminals when the federal government’s power, through the prison sentence has been exhausted.
Solicitor General Elena Kagan rested her argument for the United States largely on the Necessary and Proper Clause, with barely a nod to the Commerce Clause. That much in itself was a victory for the late Chief Justice Rehnquist’s “federalism revolution,” which, to varying degrees of success, sought to limit the expansive reach of the Commerce Clause to issues more closely connected to interstate commerce than the permissive post-1937 Courts often allowed.
But only Justice Scalia truly seemed to believe that 4248 also strained the bounds of the Necessary and Proper Clause to maintain law and order. Justice Scalia looked to the text of the Necessary and Proper Clause, finding nowhere that it authorizes the federal government to act according to what is “necessary and proper for the good of society.” Rather, he maintained that the clause enabled the federal government’s actions that were necessary and proper to execute another power given to the federal government by the constitution itself. As such, he agreed with what would be the defendant’s argument that the states and states alone are responsible federal prisoners whose sentences have run.
Kagan countered that indefinite civil commitment of sexual offenders under 4248 was necessary and proper to the “responsible exercise of operating the criminal justice system.” On this point–that the federal government needed its own civil commitment regime as a “backstop” for when the state governments refused responsibility for released federal prisoners–Justices Alito and Breyer seemed sympathetic. They peppered G. Alan DuBois, a veteran federal public defender and counsel for Comstock, with hypotheticals about the constitutionality of the federal government’s ability to deal with prisoners who grows more violent while in prison or, in the opposite instance, is injured in jail in an attack by another prisoner as his sentence ends. Per these and several other hypotheticals, Alito and Breyer both seemed to believe that the federal government does have the power to retain custody over prisoners that it deems dangerous to public health and safety, or to themselves, upon their scheduled release from federal custody.
As Justice Breyer persisted in exploring the federal government’s power to set up, for example, national mental hospitals, Justice Scalia clutched his head in frustration: “No, No, No! The Issue is not setting up hospitals, it’s detaining and committing people!” Scalia simply could not believe that any governor or state attorney general, upon receiving a note or a call from the federal government, would deny his or her obligation to civilly commit a sexual offender and rather face the electoral consequences of letting such a criminal roam the state without rehabilitation. Justice Stevens then took the opportunity to look at the statute from the opposite end of Scalia’s looking glass, suggesting that the Court look to the wisdom of the statute and “assume there are cases out there that there is no solution” like Scalia’s belief that all states would naturally accept responsibility for rehabilitating federal prisoners released within their borders.
But DuBois stood firm against Stevens’, as well as Justice Ginsburg’s, apparent approval of the federal “backstop” when states refuse to cooperate. Chief Justice Roberts tested DuBois’s position, asking that “if a state says no” to receiving a released, but still dangerous, federal prisoner, “then the federal government says, ‘you have to’?” DuBois dug in: “Yes, the Constitution requires it.”
Scalia remained astonished that the other justices even entertained the federal government’s claims of responsibility. Noting that states have involuntary commitment procedures, he wondered why the federal government could not simply fund an office that brings state proceedings for involuntary commitment. “They should do that!” Dubois actually shouted in reply. When Stevens tried to get the Court back to assessing whether 4248 itself was constitutional, Scalia shot back that the statute “isn’t even necessary!”
Towards the end of the argument, Justice Sotomayor interjected with a compromise, asking DuBois if it would be constitutional for a judge to mandate civil commitment for a sexual offender during his trial’s sentencing phase. If such a mandate contained protections to avoid turning indefinite commitment into interminable detention, then it would be constitutional, replied DuBois.
Sotomayor’s trial-judge pragmatism may persuade all but Scalia (and possibly the ever-silent Justice Thomas) to side with public safety over rock-ribbed federalism and uphold 4248 as constitutional. If this happens, then Scalia, confronted with Sotomayor’s aggressive questioning this term and her possible coup over his Melendez-Diaz decision in yesterday’s Briscoe v. Virginia, may finally be meeting his match.
UPDATE: Read the official transcript here and use the comments section to call me out on my own transcription errors.
Briscoe has been argued and submitted. A few quick impressions:
1) Justice Sotomayor owns this case. The general sentiment among those in the know who were standing out in the cold this morning was that this case would be decided by Justice Sotomayor. If there was any doubt, Sotomayor herself put it to rest at argument. She came out swinging as the first justice to question the advocates for the petitioners and respondent. She appeared to be carving a middle path between the majority and dissent in Melendez-Diaz. To Briscoe’s lawyer, she emphatically stated, “I trust the trial process,” signaling her former prosecutor/trial judge’s sympathy to Virginia; yet she asked Virginia’s lawyer how the Court could articulate a rule that would satisfy Briscoe and seemed bothered by Virginia’s assertion that a trial by affidavit would satisfy the Confrontation Clause.
2) Justice Scalia isn’t budging. It took until the end of the argument, but Scalia made his displeasure clear to the entire courtroom, interrupting Virginia’s counsel to ask, “Why is this case here?” That question, he noted, wasn’t directed towards the Commonwealth; it was for the Court. Melendez-Diaz made Briscoe redundant, so the only reason Briscoe was before the Court was to overturn Melendez-Diaz on a “spite cert” (my term, not Nino’s) by Melendez-Diaz’s four dissenters.
3) Breyer is budging. Justice Breyer was in the dissent in Melendez-Diaz, but seemed receptive to Sotomayor’s difference-splitting as a way to limit Melendez-Diaz without overturning it. Indeed, he tipped his hat to stare decisis, demanding Virginia justify its statute under Melendez-Diaz even after he “laid his cards out on the table” that he didn’t agree with the case.
4) The case may not be a simple 5-4. Sotomayor’s difference-splitting may be enough to get a broad majority to affirm the core of Melendez-Diaz, which held that if the prosecution seeks to introduce a forensic report, the lab technicians must be made available as live witnesses for defendants to cross-examine. Such a majority would discard Scalia’s formalistic requirement that the witness must be the prosecution’s. At argument, justices from both sides of the Melendez-Diaz divide seemed to accept that Virginia may construct an efficiency-oriented statute that allows for the defendant to call a lab technician to the stand as an adverse witness, provided that Virginia not only bear the costs of presenting the witness, but also suffer the consequences if the witness no-shows. Up to seven justices could be satisfied by such a scheme, as Scalia (and probably Thomas) will likely refuse to modify Melendez-Diaz.
5) Alito and Ginsburg agree: GVR. At the end of the argument, both Justices Alito and Ginsburg asked Richard Friedman, counsel for petitioner-defendant Briscoe, why the Court shouldn’t just Grant, Vacate, and Remand the case back to the Virginia Supreme Court to test whether its former statutory scheme adequately protected Briscoe’s right to confrontation. If these two, who were on opposite sides in Melendez-Diaz, can agree, then perhaps the rest of the Court could, too. Even Scalia would be happy to do so: the Court would avoid chipping away at Melendez-Diaz, and he would not have to waste his time firebombing his colleagues on Briscoe‘s merits.
6) Orthogotive? Richard Friedman busted out a word that none of the Court had ever heard. He repeated it several times, but I remain unclear what the word was. I will wait for the Court’s official transcript. Until then, I will relish the memory of a Supreme Court lit up with the excitement of learning a new word.
More later: I’ve been up since 3am!