Vox Populi – The Lewis Line
My column highlighting my experience out in line this past week is now up at the ABA Journal:
In November 1968, Jet magazine ran an item called “Black Chicago Firemen Organize Own League.” Co-founder Jim Winbush, then 27 years old, said that “the prime goal” of what’s now the African American Firefighters League of Chicago “is to increase the number of Negroes employed by the fire department.”
On Monday morning, Jim Winbush, now retired, stood in line outside the Supreme Court of the United States to support a younger generation of black Chicago firefighters in the fight that he began over 41 years ago.
Read the rest here.
Scalia Legislates from the Bench
Today’s opinion in Maryland v. Shatzer holds that
Because Shatzer experienced a break in Miranda custody lasting more than two weeks between the first and second attempts at interrogation, Edwards does not mandate suppression of his 2006 statements.
Seems equitable enough until one notices that Justice Scalia, writing for the Court, actually codified that specific number–14 days–as the bright-line expiry date of Miranda rights.
Isn’t this the very kind of specificity that conservative advocates claim made illegitimate Miranda‘s mandated “you have the right to remain silent” speech and Roe‘s trimester framework? In other words, shouldn’t Scalia himself have claimed that his 14-day limitation was better left to legislative judgment after extensive findings? Or are Miranda cases different because the Court created and occupied the field four decades ago?
Justice Thomas caught this inconsistency and called the Court out (citations omitted):
This ipse dixit does not explain why extending the Edwards presumption for 14 days following a break in custody—as opposed to 0, 10, or 100 days—provides the “closest possible fit” with the Self-Incrimination Clause. Nor does it explain how the benefits of a prophylactic 14-day rule (either on its own terms or compared with other possible rules) “outweigh its costs” (which would include the loss of law enforcement information as well as the exclusion of confessions that are in fact voluntary).
To be sure, the Court’s rule has the benefit of providing a bright line. But bright-line rules are not necessary to prevent Fifth Amendment violations, as the Court has made clear when refusing to adopt such rules in cases involving other Miranda rights. And an otherwise arbitrary rule is not justifiable merely because it gives clear instruction to law enforcement officers.
A Difficult Case, Indeed
This report is cross-posted at the ABA Journal’s website. Read here, read there, comment and share everywhere!
Early in this morning’s oral argument in Holder v. Humanitarian Law Project, Justice Anthony Kennedy plainly remarked, “this is a difficult case for me.” The issue was whether a 1996 federal law banning “material support” to designated terrorist organizations infringed on the First Amendment rights of a group seeking to train Turkey’s Kurdistan Workers’ Party (PKK) and Sri Lanka’s now-defeated Tamil Tigers in international law advocacy and peacemaking.
But Kennedy’s pondering the disputed law’s ephemeral distinction between proscribable conduct and protected speech appeared to come to an abrupt halt when Solicitor General Elena Kagan conceded to Justice Kennedy that the law could ban lawyers from submitting amicus briefs on behalf of designated terrorist organizations. Here was the government telling attorneys who they could and could not represent in a court of law–not a winning argument before a tribunal of, well, attorneys.
The Court’s liberal bloc–Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor–had already displayed their skepticism towards the government’s asserted ability to criminalize speech meant to assist a terrorist organization’s legal activities. Sotomayor even suggested that “[u]nder the definition of this statute, teaching these members to play the harmonica would be unlawful.”
In response Kagan quipped, “I think the first thing I would say is there are not a whole lot of people going around trying to teach Al-Qaeda how to play harmonicas.” Justice Antonin Scalia, the lone vocal supporter of the government’s argument, saved the Court further talk of harmonicas by shoving Sotomayor’s hypothetical into an absurd vision of chief 9/11 hijacker “Mohammed Atta and his harmonica quartet” touring the country to “make a lot of money.”
Meanwhile, Justice Clarence Thomas just this week marked his streak of silence’s fourth anniversary, but one could assume he’d ally with Scalia in this case, given his previous willingness to prohibit intensely disfavored expressive activity by casting it as pure conduct.
If Kagan’s amicus-ban assertion seemed to crystallize for Kennedy the infirmity of the law in question, Justice Alito may have fallen off the government’s wagon when Kagan explained that Congress did not intend to criminalize one’s meeting with or joining a designated terrorist organization. Queried Alito:
Could you explain how someone could be a member of one of these organizations without providing a service to the organization? Simply by lending one’s name as a member; that might be regarded as a service. If you attended a meeting and you helped to arrange the chairs in advance or clean up afterwards, you would be providing a service to the organization.
However, Alito may have asked this question simply to get Kagan to walk back her distinction between simple membership and criminal service-providing so that he could more easily side with the government. After all, he was the sole supporter of the government’s position in United States v. Stevens, in which the Court is likely to rule a federal ban on depictions of animal cruelty to be an unconstitutionally overbroad restriction on speech. But walk it back Kagan did not.
Even if Alito still finds a way to join Scalia, even if the loquacious Kennedy forgets that lawyers may be silenced, and even if silent Thomas sides at conference with Sotomayor, Chief Justice Roberts signaled an openness to killing the law as applied to HLP. That is, as long as the Court got no government blood on its hands.
During HLP counsel David D. Cole‘s rebuttal, Roberts asked, “why don’t we remand it to the lower courts to apply strict scrutiny if we agree with you that” the law does, in fact, prohibit pure speech as opposed to conduct that incidentally touches speech?
Cole quickly endorsed this plan, knowing that strict scrutiny is nearly always “strict in theory, but fatal in fact.”
But just as soon as Chief Justice Roberts offered up a pleasing resolution for this “difficult” case, Justice Sotomayor jumped in to close the morning with the argument that if money is speech–as the Court strongly affirmed in Citizens United–then Congress could have been onto something after all when it found that money is so fungible that “if you give [terrorist groups] money for legitimate means…it’s going to be syphoned off and used for illegitimate means.” Such a justification for a ban on money-as-speech, Sotomayor suggested, could be “enough under strict scrutiny or under a lesser standard, reasonable fit standard.”
Perhaps Sotomayor believed this, perhaps she was trying to impress upon her conservative colleagues the duty they owed to HLP if they were to remain fully faithful to the First Amendment principles they forcefully articulated in Citizens United.
Either way, Sotomayor’s mixed signals forced the Court to submit HLP the same way it entered: a difficult case, indeed.
Quick thought on HLP
The oral argument in Holder v. Humanitarian Law Project did little to clarify where the justices themselves stood on the constitutionality of the Patriot Act’s criminalizing HLP’s (hopes of) providing designated terrorist groups with peacemaking advice and international law advocacy training.
Justice Scalia provided the morning’s biggest laugh by referring to the notion of “Mohammed Atta & His Harmonica Quartet” touring the nation–I’ll give that comment’s context in my argument report.
But the most salient statement today fittingly belonged to Justice Kennedy, when he simply stated, “This is a difficult case for me.” As goes Kennedy…
Come back or subscribe to F1@1F to get the full write-up later this afternoon.
Pre-HLPing
When I woke this morning at 2:40am, I thought that I had surely lost the first spot in line. After all, Holder v. Humanitarian Law Project is the Court’s first First Amendment case arising out of the past decade’s war on terror. But the winter cold and late night rains conspired against my contemplated competitors: when I power-walked up to the Court, no one else was there.
A few thoughts before I suit up and head back out:
- I have no idea how HLP will turn out. No idea at all. That makes this morning’s oral argument all the more exciting and will hopefully provide for a challenging, yet rewarding, write-up this afternoon. In the meantime, listen to my former boss‘s case preview.
- Opinions today. Expecting a few dogs, but if the Court hands down, say, Salazar v. Buono, Free Enterprise Fund and Beckstead and Watts, LLP v. Public Company Accounting Oversight Board, or United States v. Stevens, I’ll have some comment up this afternoon.
- The line didn’t really get going until closer to 7am. I am shocked at just how few people got to the Court before dawn. Those who did arrive, however, were all law students, and undergraduate aspiring lawyers. As such, although I had a great time getting to know everyone in line, I will not be writing a vox populi column from this morning’s experience. Instead, look for my report from yesterday’s Lewis v. City of Chicago line to be posted by tonight.
- I’ve started to strike up relationships with the Court’s night shift police officers. They’re friendly, talkative, and have great stories from their years serving at One First. Too bad they won’t go on the record…but I’ll keep trying.
- So very glad that tomorrow’s cases do not compel F1@1F coverage. I love being out there, but I do also love a good night’s sleep.
Shower time. More later today.
In Lewis, the Court Stops, Drops, and Rolls over Chicago
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.
Pre-Lewising
I've Still Got It.
This morning’s line started off slow, but by the time we got our placeholders, the line had deepened. A few pre-game thoughts before I make myself presentable for the Courtroom:
- Great regional diversity in line: DC, NYC, Chicago, Indianapolis, San Francisco, London via Detroit, and Philadelphia all represented–and that was just the among the first 15 or so.
- Got some great interviews, including the founder of the African-American Firefighters League of Chicago
- Hearing how the justices consider how to mete out “Equal Justice Under Law” in Lewis will be fascinating, given the 500-pound gorilla and pink elephant in the Court.
I will try to get my oral argument report up here this afternoon, but I have class from 1pm-5:30pm. Regardless, the argument report and the vox populi column will be up before the night is over. Thanks for reading!
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