Scalia on retirees losing their health insurance: “I can’t feel bad about it.”

By Trevor Boeckmann

AFJ Dorot Fellow

It’s no surprise to see the majority on the United States Supreme Court siding against consumers, employees, and everyday Americans. In the past, we’ve told you about the Court upholding forced arbitration clauses that keep those harmed by big businesses out of court, preventing women from banding together to stop employment discrimination, and allowing employers to impose their religious views on employees.

At some point, one would think the majority would start to feel bad about how their actions affect us. Apparently not.

This week, the Court heard oral arguments in a case involving health insurance for retirees.

 M&G Polymers USA, LLC v. Tackett involves a chemical company in West Virginia that had a series of collective bargaining agreements with its employees’ union. At issue was a clause in the agreement that said retired employees “will receive a full company contribution towards the cost of [health] benefits.” The union argued the benefits were guaranteed for life. The company argued it could take away these benefits whenever it chose—which it did in 2007.

As Professors Susan Cancelosi and Charlotte Garden wrote in a previous post: “The equitable case for retirees is compelling: they devoted their working lives to their employer with the expectation that they would then have health insurance to see them through their retirement.” Compelling, unless you’re Justice Antonin Scalia.

During oral argument, Justice Scalia mused:

 You know, the nice thing about a contract case of this sort is you can’t feel bad about it.  Whoever loses deserves to lose. I mean, this thing [the duration of the health benefits] is obviously an important feature.  Both sides knew it was left unaddressed, so, you know, whoever loses deserves to lose for casting this upon us when it could have been said very clearly in the contract.  Such an important feature.  So I hope we’ll get it right, but, you know, I can’t feel bad about it.

 Justice Stephen Breyer was quick to disagree:

Well, you know, the workers who discover they’ve been retired for five years and don’t have any health benefits might feel a little bad about it.

Listen to the comments of Justice Scalia and Justice Breyer:

This is nothing new for Justice Scalia.  Last year, he compared the LGBT community to “child abusers” and referred to the Voting Rights Acts as a “perpetuation of racial entitlement.”

And if the majority sides with the chemical company, that won’t be anything new either.

GUEST BLOG: Madigan v. Levin: Justices ask if they should be hearing the case at all

By Daniel B. Kohrman

Senior Attorney, AARP Foundation Litigation

Update, OCT. 15:  On Tuesday, October 15th, the Supreme Court dismissed Madigan v. Levin as improvidently granted.

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The Fall 2013 Term of the U.S. Supreme Court began Monday with an age discrimination case, with broad implications for civil rights enforcement under the Fourteenth Amendment to the Constitution.  A lively argument left questions as to whether the Justices had chosen the right case to begin their year.  In fact, many justices expressed skepticism about whether Madigan v. Levin, No. 12-872, was properly before them.

Madigan v. Levin is a challenge to a 7th Circuit ruling, 692 F.3d 607, upholding the right of Harvey Levin, a former senior member of the Illinois Attorney General’s Office, to contest his termination, allegedly based on his age, under the Age Discrimination Employment Act (ADEA), the Equal Protection Clause of the Fourteenth Amendment, and Section 1983 of the Civil Rights Act. 

The petitioner, Illinois Attorney General Lisa Madigan, argued that the ADEA is the exclusive remedy for age discrimination claims.  She asserted that federal anti-discrimination statutes, including the ADEA, are so comprehensive as to demonstrate Congress’ intent to preclude a parallel anti-discrimination claim under the Constitution,   and therefore that the ADEA displaced any competing, constitutional claim for age discrimination under the Constitution or § 1983. 

The 7th Circuit noted that "[a]ll other circuit courts to consider the issue have held that the ADEA is the exclusive remedy for age discrimination claims.” …  But they disagreed.  The court said the matter was “admittedly a close call, especially in light of the conflicting decisions from our sister circuits."

The 7th Circuit also affirmed a judgment that qualified immunity did not shield Madigan from Levin’s § 1983 claim for damages.  To establish a qualified immunity defense, a defendant may show either that the plaintiff failed to set forth a viable claim, or that the rights allegedly violated were not clearly established at the relevant time.   The 7th Circuit’s ruling did not disturb the trial court’s decision that Levin had no age discrimination claim under the Age Discrimination in Employment Act of 1967 (ADEA), because his former job fit within an exemption to ADEA coverage.

 The themes presented by Madigan are essentially threefold:

1.    To what extent may civil rights plaintiffs rely on multiple, overlapping claims to remedy injustices, or are various civil rights protections – here for older workers – mutually exclusive?
2.    To what extent does the doctrine of “qualified immunity” prevent state employees from invoking federal civil rights protections?
3.    To what extent will the Court reach out to issue rulings in civil rights cases, even when full briefing and argument reveals that the issue(s) the Court elected to hear are not those actually presented?

Arguing for Madigan, Illinois Solicitor General Michael Scodro began with a straightforward recital of the issue.  Illinois sought the Court to decide:

Congress has crafted a comprehensive body of administrative and judicial procedures and remedies that are tailored specifically to combatting discrimination against older workers. In extending these procedures and remedies to government employees, Congress did not intend to permit State and municipal workers alone to frustrate this regime or bypass it entirely using the more general remedies of Section 1983.

That is, the ADEA requires exhaustion of private and state and local government employee age discrimination charges before the U.S. Equal Employment Opportunity Commission (EEOC).  Allowing state employees like Levin (and many municipal employees as well) to assert claims of employment discrimination by government employers (whose alleged misconduct constitutes state action) under the Constitution, via the Civil War era statute 42 U.S. C. § 1983 (ch.22, §1 of the 1871 Civil Rights Act), would “frustrate” the legislative scheme Congress enacted in the ADEA.

The fight in Madigan over a constitutional claim of age discrimination is ironic because proving such a claim, the parties agree, is very difficult, and it is far easier to prove a violation of the ADEA.  Thus, plaintiffs only are likely to bring such a claim if they cannot sue under the ADEA, such as when they have failed to follow EEOC filing requirements, or, as here, when the ADEA does not provide a claim in the first place. 

But before Scodro got to address the merits, he was bombarded by a series of preliminary, jurisdictional questions.  Justice Ginsburg launched the first salvo:  The case came to the 7th Circuit on an interlocutory appeal, which is a rare type of appeal that takes place to contest an issue that the court has decided but occurs before a final decision is handed down.  In this case the appeal dealt only with the trial cout’s finding that there was no qualified immunity.  That raised a fundamental question: What authority did the Court of Appeals have to also address other aspects of the interplay between  the ADEA and Section 1983?

Justice Alito came to Scodro’s defense, pointing out that “although the Seventh Circuit should not have considered the question of whether there was a cause of action under Section 1983,” the Supreme Court itself has “jurisdiction to consider that question” as “a matter of discretion.”  But Justice Kennedy, the swing vote in most major cases, sounded skeptical:  “What’s the rationale that we can exercise jurisdiction where a court of appeals could not?”  Is there “authority to grant certiorari before judgment?” 

Justices Kagan, Scalia and Sotomayor then each pressed Scodro still further to justify the Court’s jurisdiction to consider anything more than the issue of qualified immunity – which Justice Ginsburg characterized as clear, in that the record establishes that the Equal Protection Clause prohibits irrational age bias.  Only Justice Alito returned to Scodro’s defense, worrying that for the Court to ignore the issue of ADEA preclusion of a Section 1983 claim until the end of the case might be wasteful.

Scodro seemed to be struggling mightily to stay afloat when Justice Scalia intervened to suggest he “say a few words about the merits.”  But Scodro was on the defensive almost immediately once more.

This time his struggle centered on the fact that that, as Justice Ginsburg noted, petitioners acknowledge it would be very difficult for Levin to sustain an ADEA claim because, as the district court found, he is an “appointee on the policymaking level” exempt from ADEA coverage.  See 29 USC § 630(f).  Thus, key premises of petitioners’ case – that Levin has rights under the ADEA he failed to invoke, that he seeks to invoke alternative rights and thus would “bypass” his actual ADEA rights, and that he would thereby “frustrate” Congress’ intent that he invoke those rights and no others—are  highly misleading.

Madigan’s merits briefs argued for the first time that Levin has a sort of ADEA claim in the form of a claim under the Government Employee Rights Act of 1991 (GERA), 42 USC 2000e-16a to16c.  The GERA created a claim for  employees like Levin exempted by the ADEA.  But Levin never asserted such a claim, and until the case came to the Supreme Court Madigan never asserted that the GERA provided rights to Levin that would support preclusion of a §1983 age discrimination claim under the Equal Protection Clause.

Justices Kagan, Breyer and most significantly, Alito, hit Scodro hard on the GERA.  Kagan:  “the point here is that Mr. Levin is covered not by the ADEA, but by a separate statute, the GERA.  And there's a separate question whether the GERA would displace constitutional relief, which apparently has -- has never been argued to anybody in this case.”  Breyer:  “I looked to see what the Seventh Circuit said [about the GERA]. Nothing. I looked to see what you argued below. Nothing. I looked to see whether it's obvious that GERA does apply or doesn't apply and simply picks it up or not. I don't know. Maybe I'm just being thick. But nonetheless, where I don't know so much and the whole case turns on it, why are we hearing an issue that might not even be in the case?”  And Alito:  “Has the Court ever held that an antidiscrimination statute that does not provide any rights for a particular class of plaintiffs nevertheless extinguishes the right of action that those plaintiffs would have under Section 1983?”  Justice Breyer suggested Scodro wanted an “advisory opinion,” and then said, “Sometime on occasion we dismiss a case as improvidently granted, which is not a particularly desirable thing to do. But how could we avoid doing that here?”

At the outset, Levin’s Attorney, Edward Theobald, spent an extended period on a losing gambit:  fencing with Justice Alito and Chief Justice Roberts about whether his client is an “employee” under the ADEA.  Justice Breyer bluntly opined that, but for the GERA, Levin had no such argument.

Justice Kennedy seemed to explore with Theobald another approach that would have the Court dodge a decision on the merits.  He asked about sending the case back to the lower courts, to decide “whether or not the GERA issue has been properly presented or waived and to consider that[.]”  Theobald objected that the case was scheduled for trial in 2014, and Justice Kennedy responded “that argument could be made in the district court.”

On rebuttal Justices Ginsburg and Kagan focused on the merits, alluding to support for Levin’s claim that both the ADEA and the Constitution are open to age discrimination in employment claims.  Kagan:  “All you have is a complicated remedial scheme, which would be enough to say, look, you can't bring 1983 suits to vindicate this statute. But seems as though it's not enough under our case law to repeal preexisting rights and remedies.”  Ginsburg: “isn't it strange to think that Congress at the same time wanted employees to have these expanded [ADEA] rights and to do away with the preexisting remedies?” 

By the end, while several of the so-called “liberal” Justices expressed support for a 14th Amendment age discrimination claim, none of the Justices articulated clear enthusiasm for a decision on the merits.

The arguments in Madigan v. Levin leave unclear whether there is a majority for recognition of an age discrimination claim under §1983 and the Equal Protection Clause.  More apparent are signs of majority support for a decision acknowledging, or at least demonstrating, that the case is not ready for resolution of the issues for which certiorari was granted.  Many of the comments and questions of the Justices suggest the most likely result is some sort of remand for further consideration of all or some of the issues addressed by the parties.

Links to briefs in this case, and additional coverage from SCOTUSblog

GUEST BLOG: Breathtaking victories for the LGBT movement

By Clifford J. Rosky
Associate Professor of Law
University of Utah's S.J. Quinney College of Law

Yesterday morning, the Supreme Court brought an end to the federal Defense of Marriage Act and California’s Proposition 8.  In United States v. Windsor, the Court held that DOMA violates the liberty and equality protections afforded by the Fifth Amendment.  In Hollingsworth v. Perry, the Court held that the sponsors of Prop 8 did not have legal standing to defend the law.  Before long, same-sex couples will once again be marrying in California.  In addition, the federal government will now grant equal rights and responsibilities to same-sex couples married in California, and in any of the other 12 states and the District of Columbia where same-sex marriage is already recognized.

By any measure, today’s rulings represent a pair of breathtaking victories for the LGBT movement.  As Professor Suzanne Goldberg observed in her earlier post, DOMA and Prop 8 were the country’s most prominent antigay laws.  Both Prop 8 and the heart of DOMA are now dead and gone, and in the grand scheme of things, this turnaround seems improbably quick.  In 1996, Congress passed DOMA by overwhelming margins, and the bill was signed into law by President Clinton in the wake of a national backlash against the possibility of same-sex marriage in Hawaii.  In 2008, California voters passed Prop 8 by a narrower margin, overturning a state court ruling that had legalized same-sex marriage in California.

Putting aside the legal analysis of today’s rulings for a moment, the impact of the two judgments on the everyday life of LGBT people is profound.  Federal law grants more than 1,000 benefits to married couples, and more than 100,000 same-sex couples are legally married.  With the demise of Prop 8, 30 percent of the country lives in a state where same-sex marriage is legal.

More than anything else, this is how progress happens—in the interactions of everyday life.  People meet same-sex couples as neighbors, coworkers, and friends, and they realize that our differences don’t need to divide us.  A study conducted by the Williams Institute estimates that in the next three years, 37,000 same-sex couples will marry in California, and the state’s economy will gain nearly $500 million in new revenues.  That’s a tremendous number of family and friends, not to mention photographers and caterers.  By experience, people will learn that the sky does not fall at same-sex weddings—and sadly, the cake tastes no better.

Legally speaking, however, the Perry ruling is not likely to significantly influence the push for marriage equality in other states.  Because the Court held that the sponsors of Prop 8 did not have standing to defend the law, it did not address the question on everyone’s mind—whether other state laws that ban same-sex couples from marrying are constitutional.

In Windsor, however, Justice Kennedy sent strong signals that the answer is no—that sooner or later, the Supreme Court will rule that all laws against same-sex marriage are unconstitutional.  In remarkably direct terms, Justice Kennedy wrote that “DOMA writes inequality into the entire United States Code,” because “it tells [same-sex] couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition.”  In intensely personal language, he concluded that DOMA “demeans” same-sex couples, “[a]nd it humiliates tens of thousands of children now being raised by same-sex couples.”  As if that were not enough, he added that “DOMA also brings financial harm to children of same-sex couples” by raising “the cost of health care for families” and denying “benefits allowed to families upon the loss of a spouse and parent.”

Above all, Justice Kennedy’s references to children embody the LGBT movement’s incredible progress during the last several decades.  Since the 1970s, opponents have repeatedly claimed that same-sex marriage is “harmful to children,” because “every child needs a mother and a father.”  In today’s ruling, the contrast between then and now could not be any clearer: Now it is not gay couples but Congress – Congress! – that is “humiliating” and “harming” kids.  In his dissent, Justice Scalia frankly admitted that this passage of Windsor was the handwriting on the wall.  In an unusual move, he demonstrated how the Court’s opinion could easily be tweaked – by inserting “this state’s law” in place of “DOMA” – to strike down all of the country’s remaining laws against same-sex marriage.

I have to admit, all of this language in Windsor came as a pleasant surprise to me.  Like many pundits, I predicted that the Court would issue a divided opinion on DOMA – or alternatively, a 5-4 decision striking down the law as a violation of states’ rights, rather than as a violation of due process or equal protection principles.  Like others, I based my predictions on Justice Kennedy’s remarks during oral argument.

>>Hear excerpts from the oral argument

During oral argument, Justice Kennedy had argued forcefully that DOMA improperly “intertwined” the federal government “with the citizens’ day to day life,” because it applied to “over 1,100 laws.”  As a result, he reasoned, the law was “at real risk of running into conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody.”

When the Solicitor General claimed that DOMA violated equal protection principles, Justice Kennedy seemed to rebuff him, by suggesting that the issue of states’ rights took precedence over the issue of equal protection: “But you're – you are insisting that we get to a very fundamental question about equal protection, but we don't do that unless we assume the law is valid otherwise to begin with. And we are asking is it valid otherwise. What is the Federal interest in enacting this statute and is it a valid Federal interest assuming, before we get to the equal protection analysis?”

In today’s ruling, however, this framework was flipped: The Court struck down DOMA as a violation of equal protection, without resolving whether it was a violation of states’ rights.  Although Justice Kennedy spent several pages suggesting that marriage was traditionally regulated by states, he explicitly refused to invalidate DOMA on this ground: “Despite these considerations,” he explained, “it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance.”

Of course, it’s impossible to know exactly what happened behind the scenes in these cases – whether Justice Kennedy was only playing devil’s advocate at oral argument, or whether he changed his view later, in response to a give-and-take with one or more of his colleagues.  Playing Sherlock, it’s tempting to guess that he started out by writing an opinion striking down DOMA as a violation of states’ rights, but found himself alone on the Court in this view.  During oral argument, Justice Kagan suggested that DOMA’s unprecedented intrusion into the domain of marriage may be “relevant to the equal protection inquiry,” which is precisely what Justice Kennedy ended up saying in today’s ruling.  To garner a majority of the Court, Justice Kennedy may have been compelled to switch horses, and reach the question about equal protection that he would have preferred to avoid.

In any event, whatever happened during the Court’s deliberations, this subtle shift from states’ rights to equal protection represents a major turning point in the struggle for LGBT rights.  After Windsor, marriage equality is closer than ever, and full equality under the law cannot be far behind.

>> Read AFJ's response to the marriage equality victories
>> Read more about marriage equality.

Clifford J. Rosky is an Associate Professor of Law at the University of Utah's S.J. Quinney College of Law. Read Prof. Rosky's previous post on the marriage equality cases.

Supreme Court betrays principles of justice and fairness in Voting Rights Act decision

Alliance for Justice President Nan Aron released the following statement today in response to the Supreme Court decision in Shelby County v. Holder:

The Voting Rights Act protects a fundamental right, not, as Justice Scalia infamously suggested, a “racial entitlement.”  Attempts to suppress the vote were common during the 2012 presidential election, and they continue to this day.  Now that a five-justice majority of the Supreme Court has effectively removed the keystone from the arch of protection for people of color, the nation must redouble its efforts to protect the rights of all Americans.

Chief Justice John Roberts
wrote the majority opinion

Today, by overturning a crucial part of the Voting Rights Act, five justices betrayed the principles of justice and fairness embodied in this law for half a century—and showed a callous disregard for the realities still faced by people of color.  Congress must now act without delay to restore the power of the Voting Rights Act to serve as a bulwark against persistent discrimination.

Read More:
--Prof. William Yeomans analyzes today's decision
--AFJ Audio Analysis, with excerpts from the oral arguments. 
--More about the Voting Rights Act

GUEST BLOG: Affirmative action lives to fight another day

By William Yeomans, 
Fellow in Law and Government at American University Washington College of Law

The long awaited decision in Fisher v. University of Texas emerged from the Supreme Court today with a reassuring whimper.  The Court’s 7-1 decision (Justice Kagan was recused) leaves the law of affirmative action unchanged and, importantly, reaffirms that its prior decisions allowing consideration of race in university admissions remain good law.  Only Justice Ginsburg dissented from the majority’s holding that the lower courts had not sufficiently applied strict scrutiny.  She argued, correctly, that the University’s consideration of race was appropriate.

William Yeomans

The University’s undergraduate admissions program sought to create a diverse student body in two ways.  First, it admitted all applicants who finished in the top ten percent of their high school classes.  This program was adopted after a 1996 decision by the 5th Circuit Court of Appeals rejected the notion that race could be considered as a factor in achieving a diverse student body.  Before that decision was superseded by the Supreme Court’s 2003 decision in Grutter v. Bollinger, Texas adopted its ten percent plan, knowing that taking the top students from the state’s segregated schools would increase diversity.  To fill the remaining 20 percent of the places for the incoming class, the University took into account a variety of factors, such as grades, SAT scores, socio-economic measures, legacy, and race.  The Fisher case challenged the use of race in this second pool of applicants.

The court reaffirmed that it is appropriate for universities to take race into account to achieve a diverse educational environment.  It emphasized, however, that the use of race must be narrowly tailored and found fault in the lower court’s reliance on the “good faith” of the university in determining that there were no adequate race-neutral means of achieving comparable diversity.  Importantly, rather than reverse and hold that the university could not consider race, the Court merely sent the case back to the 5th Circuit to revisit the availability of race-neutral alternatives.  Theoretically, the lower court is free to affirm its earlier holding.

Because the case was decided on motions for summary judgment, there was no trial for the development of facts.  The availability of race-neutral alternatives is an issue of fact.  The 5th Circuit, therefore, can credibly remand the case to the district court for development of the record on the issue, including the taking of testimony on the effectiveness of alternatives.  The district court’s decision could then be appealed to the 5th Circuit and could eventually return – in the distant future – to the Supreme Court.

The case was argued in October.  The issuance of the decision only today reflects the deep disagreement among the Justices over the issue of affirmative action.  Justices Scalia and Thomas wrote separately to make clear that they joined the majority’s opinion only because Fisher did not urge the Court to overrule Grutter and disallow consideration of race altogether.  Based on past decisions, it is likely that Chief Justice Roberts and Justice Alito share that view.  Presumably, they had hoped to get Justice Kennedy to join them, but he held fast to his repeated refusal to take race off the table entirely.  Unfortunately, he also held to his pattern of never approving a program that considered race.

The decision – even in its compromised form – highlights how misguided the Court’s jurisprudence on inclusive racial classifications has become.  The opinion is filled with rhetoric about the evils of considering race, regardless of the purpose.  Helpfully, Justice Ginsburg pointed out that the Court had no occasion to address the distinction between racial classifications that separate and those that are inclusive.

By contrast, Justice Thomas, in his concurrence, was incapable of distinguishing between the Jim Crow exclusion of African Americans from public schools and the University of Texas’s program to increase diversity.  According to Thomas, “every time the government . . . makes race relevant to the provision of burdens or benefits, it demeans us all.”  In reality, of course, many people, including Justice Thomas, have benefitted from appropriate consciousness of race and some of them have made our society a far better place because of it.  It is essential that the Court never gets a fifth Justice who rejects that view.

In the meantime, it will be incumbent on university administrators to continue the push to create diverse institutions that will move us toward a more just, inclusive and productive society.  Today’s decision should not slow that effort.

William Yeomans is a Fellow in Law and Government at American University's Washington College of Law.

Genesis Healthcare Corp. v. Symczyk: Losing Small Sure Beats Losing Big

Guest post by Thomas D. Rowe, Jr., Elvin R. Latty Professor Emeritus, Duke University School of Law

A spectre is haunting aggregate litigation--the spectre of “pick-off” offers.

To begin close to the beginning: Somewhat incredibly, the law in the Seventh Circuit has long been that a putative class representative who receives but does not accept a full-satisfaction Rule 68 offer of judgment suffers mooting of the action, with the consequence that the case is dismissed for lack of subject-matter jurisdiction and the plaintiff takes nothing.¹ To be fair, these were cases in which class certification had been denied; and not all federal courts agree with the Seventh Circuit that the plaintiff with a claim mooted by an unaccepted full-satisfaction offer loses outright.²

Readers not already immersed in the arcana of formal Rule 68 offers of judgment may need a bit of background before I get to the spectre posed by the Supreme Court’s recent decision in Genesis Healthcare Corp. v. Symczyk.  Federal Rule of Civil Procedure 68 permits a party defending against a claim to serve “an offer to allow judgment on specified terms, with the costs then accrued.”  If the opposing party accepts within 14 days, the court clerk must enter judgment.  The kicker (and the incentive for defendants to make formal offers of judgment, not just offer terms in settlement negotiations) is that if the offeree doesn’t accept and obtains a judgment that “is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.”

Scalia’s latest: Unethical or merely appalling?

We’ve all seen it before:

• Justice Antonin Scalia makes comments that are appalling in their racial insensitivity.
• Justice Antonin Scalia skates right up to the line of ethical impropriety.

But this time Scalia managed to do both at once, while discussing the Voting Rights Act in remarks at the University of California Washington Center this week.

Justice Antonin Scalia

Even as Scalia and his colleagues consider a challenge to a key provision of that law, Scalia chose this forum to elaborate on a claim he first raised during oral arguments, when he called the law a “perpetuation of racial entitlement.”  This week, he echoed that claim, calling the law an “embedded” form of “racial preferment.”

To support his claim he declared that that it was unfair for his current home state, Virginia, to have to clear changes to its voting laws with the Justice Department in advance when other states did not.  He suggested that there could not possibly be a racial bias problem in Virginia since that state once elected a black governor and most other states haven’t.  He neglected to mention the state’s far more recent efforts to suppress the votes of the poor and people of color through restrictive voter I.D. laws.  (We have more on the need for the Voting Rights Act on our website here.)

But most disturbing was this.  According to The Wall Street Journal, Scalia said that:

merely holding minority status should not insulate one from majoritarian policy choices. “Child abusers” are a minority, for instance, but they should not receive special protection as a result, he said.

Presumably, Scalia thought this hypothetical would bolster his efforts to deny equal protection to a whole slew of Americans – such as women, the mentally ill, and the LGBT community.

There is one crucial difference between making such callous, insensitive remarks during oral argument and making such callous, insensitive remarks elsewhere while the case is pending: judicial ethics.

We have long argued that the Code of Conduct for U.S. Judges, which applies to all other federal judges, should apply to Supreme Court Justices as well.  It was the topic of this brief AFJ documentary:


But since it does not, Scalia is off the hook no matter what.

If Scalia’s remarks had been uttered by a judge on whom the code is binding, they may very well have been in violation of the code – and at the very least would come right up to the edge of what is permissible.  The code says:

A judge should not make public comment on the merits of a matter pending or impending in any court. [Canon 3A(6).]

Although the code makes an exception for “scholarly presentations made for purposes of legal education,” the commentary to this part of the code advises judges commenting on cases from their own court to “take particular care so that the comment does not denigrate public confidence in the judiciary’s integrity and impartiality … .”

That’s because the code prohibits conduct that gives even the appearance of impropriety. [Canon 2A.] 

This is not the first time Justice Scalia’s behavior has raised questions about ethics.

• At the same event this week, Justice Scalia indicated his likely vote on another pending case involving the powers of the Federal Communications Commission. 
• In 2011, Justices Scalia and Thomas spoke at a fundraising event for the ultra-conservative Federalist Society.  While federal judges subject to the Code of Conduct can speak to any organization they want, the code bars them from speaking at fundraisers.  Justice Samuel Alito spoke at the same event last year. 
• As we noted in our report on Supreme Court ethics, Justices Scalia and Thomas reportedly have each attended at least one invitation-only retreat hosted by Charles and David Koch, co-owners of Koch Industries, the second largest private corporation in the United States.  The purpose of the Koch retreats is overtly political.

Whether Scalia crossed the line this time or just came very, very close, with each passing year it becomes more urgent to make Scalia, Thomas, Alito and all the other Justices subject to the code of conduct.

The Justice doth protest too much

You can listen to the comments from Justice Scalia described in this post here:



Just before the Supreme Court heard oral arguments in two marriage equality cases, New York Times Editorial Writer Dorothy Samuels wrote that

there are two questions preoccupying legal writers: How will Justice Anthony Kennedy, the court’s wild card, vote, and how will Justice Antonin Scalia behave? … Can Justice Scalia hold his ego and intemperance in check for the two hour and 50 minute duration of the two marriage argumentss? 

Justice Scalia did seem to choose his words more carefully than he has in some other recent cases – perhaps because he knows that, as Samuels wrote, his increasingly intemperate remarks both on the bench and off are raising questions about whether he should recuse himself from cases like these.

But that didn’t stop Scalia both from getting distorting reality and straining credulity.

It happened during oral argument on Hollingsworth v. Perry, the case challenging Proposition 8, which bans same-sex marriage in California.  Charles Cooper, counsel for supporters of Proposition 8, was struggling to name any actual harm caused by same-sex marriage.  So Justice Scalia tried to help him out, declaring:  

Justice Antonin Scalia

I don't know why you don't mention some concrete things. If you redefine marriage to include same-sex couples, you must -- you must permit adoption by same-sex couples, and there's -­ there's considerable disagreement among -- among sociologists as to what the consequences of raising a child in a -- in a single-sex family, whether that is harmful to the child or not. … I take no position on whether [same-sex marriage is] harmful or not, but it is certainly true that -- that there's no scientific answer to that question at this point in time.

Scalia is wrong.  As Prof. Clifford Rosky pointed out in his guest post to this blog: 

we now have several dozen empirical studies on children raised by lesbian and gay parents conducted over a period of several decades. While no study’s methodology is perfect, the findings of these studies speak with one voice. As one expert testified during the Prop 8 trial, these studies have shown “very conclusively that children who are raised by gay and lesbian parents are just as likely to be well-adjusted as children raised by heterosexual parents.

 Indeed, after a four-year review of the scientific literature, the American Academy of Pediatrics declared its support for same-sex marriage.  But what do pediatricians know about children anyway?  It’s the sociologists who count, right?

But, as Ezra Klein notes in The Washington Post, the American Sociological Association also strongly supports same-sex marriage.  The organization said so in an amicus brief filed in this very case.  The brief notes that 

The claim that same-sex parents produce less positive child outcomes than opposite-sex parents—either because such families lack both a male and female parent or because both parents are not the biological parents of their children—contradicts abundant social science research. Decades of methodologically sound social science research, especially multiple nationally representative studies and the expert evidence introduced in the district courts below, confirm that positive child wellbeing is the product of stability in the relationship between the two parents, stability in the relationship between the parents and child, and greater parental socioeconomic resources. Whether a child is raised by same-sex or opposite-sex parents has no bearing on a child’s wellbeing.

Perhaps even more striking was Justice Scalia’s claim that he takes “no position” on whether same-sex marriage is harmful.

We’ve previously noted this Huffington Post story which points out: 

In his dissent in a 1996 Supreme Court decision overturning a voter-approved, anti-gay referendum in Colorado, Scalia wrote in support of the voter majority, "I had thought that one could consider certain conduct reprehensible -- murder, for example, or polygamy or cruelty to animals -- and could exhibit even 'animus' toward such conduct." And in 2003, after the Supreme Court negated a law in Texas that had criminalized same-sex "sodomy," Scalia wrote in dissent, "The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are 'immoral and unacceptable' -- the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality and obscenity."

 Justice Scalia has an interesting definition of “takes no position.”

"Voice of the children": Proposition 8 and LGBT families

You can hear the excerpts from oral argument discussed below on our AFJ Audio Analysis page for this case.

by Clifford J. Rosky, Associate Professor of Law at University of Utah College of Law
 
In today’s arguments on the constitutionality of California's Proposition 8, the issue of “standing” took center stage. Chief Justice Roberts and the so-called liberal Justices—especially Justices Ginsburg, Sotomayor, and Kagan—argued forcefully that the sponsors of Prop 8 do not have the right to defend the law in federal court, because they are not representatives of the state of California. Although Justice Kennedy seemed to think otherwise, he, too, suggested that the appeal may not have been “properly granted.” All told, it seems most likely that the case will be dismissed—either because a majority of the Justices agree that the sponsors of Prop 8 do not have standing, or because a majority is not able to agree on any particular result. Given that the plaintiffs won at trial and on appeal, either of these outcomes would be regarded as victories. Come summer, it seems likely that same-sex couples will once again be permitted to marry in California.

But once we dispose of these legal technicalities, there are other ways to take stock of today’s performance—and more broadly, to measure the LGBT movement’s remarkable progress in the last fifty years. One reliable way of assessing today’s argument is to listen carefully to how the Justices talked about the impact of same-sex marriage on kids.

In the opening argument, Justice Scalia drew upon a long tradition of anti-gay rhetoric when he raised the possibility that allowing lesbian and gay people to adopt a child may be “harmful to the child.”  Although Justice Scalia claimed to “take no position on whether it’s harmful or not,” he argued that there was still “considerable disagreement among sociologists as to...whether [it] is harmful to the child.” Because “there’s no scientific answer,” he reasoned, Proposition 8 could be justified by the mere possibility that lesbian and gay parenting is harmful.

To be sure, Justice Scalia’s remarks are a far cry from Anita Bryant’s notorious “Save Our Children” campaign, in which she argued that “homosexuals can’t reproduce, so they must recruit” children into the “homosexual lifestyle.” But even so, Justice Scalia’s remarks betray a rather strange and strained view of the existing data. By this point, we now have several dozen empirical studies on children raised by lesbian and gay parents conducted over a period of several decades. While no study’s methodology is perfect, the findings of these studies speak with one voice. As one expert testified during the Prop 8 trial, these studies have shown “very conclusively that children who are raised by gay and lesbian parents are just as likely to be well-adjusted as children raised by heterosexual parents.”

Of course, all eyes were on Justice Kennedy in today’s argument—but as usual, he confounded any effort to discern where he stands. On one hand, he admitted that he found “substance” in Justice Scalia’s point that the “sociological information is new.” Because same-sex couples have not been permitted to marry until the twenty-first century, he explained, “We have five years of information to weigh against 2,000 years of history or more.” “On the other hand,” he continued, “there is an immediate legal injury...and that’s the voice of the children.” Giving eloquent voice to the interests of children raised by same-sex couples, Justice Kennedy explained: “There are some 40,000 children in California...that live with same-sex parents, and they want their parents to have full recognition and full status.” Admonishing the sponsors of Prop 8, he insisted: “The voice of those children is important in this case, don’t you think?” If Justice Kennedy remains focused on the voices of these children, then the prospects for lesbian and gay families look bright.

Clifford J. Rosky is an Associate Professor of Law at the University of Utah's S.J. Quinney College of Law.

Defending the NVRA from the ever-present and persistent specter of state sovereignty

Listen to the excerpt above to hear the comments by Justice Scalia that Prof. Tolson refers to below.  You can hear more excerpts as part of our new AFJ Audio Analysis project.  It's on our website here.
 
By Franita Tolson, 

Betty T. Ferguson Professor of Voting Rights at

Florida State University College of Law

Arizona’s Proposition 200 requires prospective voters to show proof of U.S. citizenship in order to register to vote in federal elections.  This week, the Supreme Court heard arguments over whether this law interferes with the National Voter Registration Act (“NVRA”), which requires states to accept the federal form for voter registration in federal elections.  This form requires no additional proof of citizenship to register to vote beyond certifying under oath that one is a U.S. citizen.  Under Arizona law, however, voter registration forms that are not accompanied by sufficient proof of U.S. citizenship are rejected. 

Prof. Franita Tolson

Unfortunately, the arguments in the case are premised on the same erroneous assumption that animates most of the Supreme Court’s election law jurisprudence—that the states, rather than the federal government, are sovereign over elections.  Justice Scalia, for example, criticized Arizona’s counsel for not challenging the federal form given “the refusal…to include on the form as additional State requirements the proof of citizenship.”  Similarly, Chief Justice Roberts suggested that the conflicting voter registration forms for state and federal elections are problematic because “you would end up with two different voter rolls.”   At least implicitly, these justices seem to believe that Congress has to defer to state voter registration requirements because states normally determine voter qualifications in all elections; moreover, congressional interference could lead to administrative chaos.     

Despite the presumption underlying these criticisms of the NVRA, however, the premise of state sovereignty over elections implicitly embraced by Justice Scalia and Chief Justice Roberts is only partially correct.  States are, for the most part, sovereign over state elections.  Yet the Constitution’s Elections Clause, by its very terms, deprives them of sovereignty over federal elections.   According to the text, states may choose the “Times, Places and Manner of holding Elections for Senators and Representatives,” but this authority is subject to Congress’s power to “at any time make or alter such Regulations.”  The Clause, with its initial allocation of power to the states, and its subsequent delegation to Congress of the power to alter state electoral arrangements, deprives the states of the hallmark of sovereign power: final policymaking authority.  While sovereignty is certainly not an uncontested concept in law or politics, the finality of an entity’s decision-making authority is a baseline that the Court has often looked to in determining what “sovereignty” actually entails.  With respect to the Elections Clause, Congress can preempt state law, thereby retaining the final word on federal elections while the states lack similar preemptive authority.

Congress’s power to modify state election laws that govern federal elections should not be understated.  The Framers of the Constitution rejected a congressional negative over all state laws because they believed it would have sharply limited state sovereignty.  The Elections Clause, in their view, represented a compromise of sorts: it gives Congress the ability to veto state laws in a very limited but important circumstance—when the laws apply to federal elections.   The Framers feared that the states would try to cripple the federal government by failing to hold federal elections, and Congress’s ability to “alter or modify” state laws would prevent this situation from occurring.  Given this history, the idea that Congress has to demur to state voter registration requirements in the context of federal elections, as some of the justices presume, is erroneous.  Indeed, the practical reality of compliance with the NVRA may very well mean that a state has to maintain two separate voter registration rolls which, although inconvenient, is not inconsistent with Congress’s authority to demand a separate standard for federal elections.  Similarly, the federal government can refuse to incorporate additional state qualifications into its registration form for federal elections.  The Elections Clause makes it pretty clear that Congress, and not the states, has the last word on regulations that affect federal elections. 

Franita Tolson is the Betty T. Ferguson Professor of Voting Rights at the Florida State University College of Law.  Her previous post to this Blog discusses the oral argument in Shelby County V. Holder, the case challenging Section 5 of the Voting Rights Act.

The OTHER voting rights case reaches the Supreme Court

The legal issues are different; the stakes are similar

The first thing Jesus Gonzalez did after completing the naturalization ceremony that made him an American citizen in 2005 was to try to exercise the most fundamental right of citizenship: the right to vote.

He filled out a voter registration form correctly. He provided the number for his certificate of naturalization. He signed an oath, under penalty of perjury, that he was a citizen. In short, he did everything the United States requires to register to vote in federal elections.

But Mr. Gonzalez had just become a citizen in Arizona, a state that keeps trying to put up barriers to poor people and people of color when they try to vote. In 2012, the state became notorious for its voter suppression efforts. But those efforts actually began long before this past election.

In 2004, Arizona passed a referendum which added burdensome state requirements beyond the simple guidelines in federal law. So the state turned Gonzalez down. He tried again, this time using his driver’s license number. But the state said the license was too old, and turned him down again. Finally, Mr. Gonzalez paid what amounts to a de facto poll tax: $112.95 to get a passport, in order to provide proof of citizenship.

He is not alone. Since the Arizona law took effect, more than 30,000 people had their voter registration forms rejected, without any evidence that the applicants were illegitimate. Today, they get their day in court.

At issue is the National Voter Registration Act, a law passed 20 years ago to provide a standardized, simple way for Americans to register to vote in federal elections. The law provides for a form prospective voters can fill out and mail to state boards of elections. States are required to "accept and use" the form. The law also requires the form be made easily available in many offices, including Departments of Motor Vehicles. That's how the law became known as the "motor voter" law.

The law was challenged by groups ranging from the Arizona Hispanic Community Forum to Common Cause and the League of Women Voters. Jesus Gonzalez is one of the plaintiffs in the suit, State of Arizona et. al., v. The Inter Tribal Council of Arizona, Inc., et. al.

A three-judge panel of the 9th Circuit Court of Appeals threw out the law. They said the federal law takes precedence and states have no right to add their own requirements. One of the judges was retired Supreme Court Justice Sandra Day O’Connor. (Retired Supreme Court justices sometimes hear cases in lower federal courts.) The full 9th Circuit meeting en banc – that is, with all of the judges hearing the case – affirmed that decision.

When it passed "motor voter," Congress made clear it had no interest in the kind of stunt Arizona is trying to pull. Congress specifically rejected an amendment to allow states to do what Arizona now is doing anyway - requiring people to submit documents proving their citizenship, documents that often are difficult for poor people, the elderly, new citizens, and active-duty military to provide. If Arizona wins in the Supreme Court, it could encourage other states to throw up similar roadblocks.

As always when a state seeks to suppress the rights of poor people and people of color to vote, the effort is cloaked in the mantle of curbing "voter fraud." But this kind of fraud – in which people who have no right to vote show up at the polls and vote anyway – is nearly nonexistent. And there is no evidence that the form provided under the motor voter law ever has been used to register fraudulently.

Perhaps most important, the Constitution is absolutely clear about where authority lies. It says Congress has the right to determine the "times places and manner" of federal elections.

In another case involving voting, Justice Scalia made headlines last month, suggesting that Section 5 of the Voting Rights Act, which he called a "racial entitlement," should be overturned because he could read the minds of members of Congress when they reauthorized the law by nearly unanimous votes – and he didn't like what he imagined those members of Congress were thinking. Here, Congress clearly rejected a proposal to allow states to pass additional requirements that would surpass the basic guidelines of the NVRA.

So upholding the 9th Circuit and striking down the Arizona law should be an easy call.

"We should all have a right to vote in this country," says Jesus Gonzalez. "I want to have a voice in the United States."

Soon we'll know if the Supreme Court will do its duty and allow American citizens their right to "a voice in the United States" or if the majority will help Arizona try to silence that voice.

Hear NPR's story about the case.

Shameful echoes of Scalia

Curt Levey

In a front page story in the Washington Post today, Alliance for Justice President Nan Aron, among others, discusses the progress made toward a more diverse judiciary under President Obama. The story also included Coalition for Justice President Curt Levey’s shameful insinuation that the Administration might have “a lower threshold of qualifications for minorities.” Not only does Levey’s sentiment mirror Supreme Court Justice Antonin Scalia’s notorious “racial entitlement” language last week in the Voting Rights Act oral argument, it is outright false.

Each and every federal court nominee put forward under President Obama – whether a white male or an African-American woman – has been rated qualified or well-qualified to serve as a federal judge by the American Bar Association. And rather than facing a “lower threshold,” a study by University of Rochester professor Maya Sen shows that the ABA systematically holds women and minorities to a higher standard than white men. In other words, with all other objective qualifications equal, the ABA has given harsher ratings to women and minorities than to their otherwise identical white male counterparts.

The facts clearly reflect that President Obama’s movement toward a judiciary that more closely resembles America has brought both diverse and exceptional nominees to a Senate which has delayed far too long in confirming them.  Levey’s insulting accusation is an affront to the nominees, to the president, and to the American people, who have long since moved past these sorts of racial canards.

Read more about President Obama’s federal court nominees and impact on the judiciary.

Shelby County v. Holder, or, The more things change, the more they stay the same

THE COURT IN ACTION: We all know what Justice Scalia said about "racial entitlement."  Now, hear also how Solicitor General Donald Verrilli responds:



By Gilda Daniels, Associate Professor of Law at University of Baltimore School of Law

One of the key discussions in today’s Shelby County v. Holder United States Supreme Court argument, a case challenging the constitutionality of Section 5 of the Voting Rights Act, was whether the “covered jurisdictions” still warrant federal oversight for voting changes.  Section 5 of the Voting Rights Act of 1965 requires “covered jurisdictions” (nine whole states-primarily in the South- and parts of seven others) to obtain approval from the federal government before it can implement any voting changes.  In the Shelby case, one of those jurisdictions argued that the coverage formula was outdated and that Congress should not have used it when it reauthorized Section 5 in 2006.  Bert Rein, who argued the case on behalf of Shelby County, started his argument stating “the South has changed.”  However, as Justice Sotomayor pointed out to Rein, “…some portions of the South have changed, your county pretty much hasn’t.”

Shelby County and other Section 5 covered jurisdictions, in spite of a changing South, continue to have more voting rights infractions than other parts of the country.  While Rein argued that the South no longer had poll taxes and literacy tests and thus should not be subject to Section 5, at least four justices seemed to disagree, arguing that “under any formula (standard) that Congress would devise Alabama would be covered”; so, would most, if not all of its counterparts.  At least four other justices seemed to argue that if other states have worse records in voter turnout and registration then “why wasn’t it incumbent on Congress ..to make a new determination of coverage?  Maybe the whole country should be covered,” Justice Alito pondered.

What is interesting to me is the assumption that because there are other wrongdoers that are not covered, Alabama, and states like it, should not be either.  Essentially, they obliquely argue that if those other states get to have worse records than Alabama on voter registration and turnout then the federal government should not “punish” it with Section 5.  It is perplexing to me how this is a viable states’ rights argument.  States do not have a right to act badly or to discriminate, particularly in the fundamental right of voting.  Congress has the constitutional power to propose and enforce legislation that protects citizens from discrimination.  Interestingly enough, Shelby County neither addressed nor attempted to defend its Section 5 record of noncompliance and discriminatory voting practices at any point during the argument.  It couldn’t.  It merely argued that “the South had changed.”

Everyone agrees that the South, indeed, has changed and progress in the area of voting has been made.  However, this progress has been made because of, not in spite of, the Voting Rights Act.  Section 5 is a preventative measure that deters discrimination and ensures that jurisdictions do not implement laws that discriminate against its minority citizens.  Remedial measures, like Section 5, even if considered extraordinary, are needed to protect the extraordinary democratic right to vote.  Section 5 is needed and covered jurisdictions require oversight to ensure that minority voting rights are not infringed upon. While some states may indeed have worse records, the protection that Section 5 provides in covered jurisdictions, like Alabama, is warranted. The assertion that some states are worse is not a rationale to eliminate Section 5; it provides a strong argument for its extension.

Finally, some justices had concerns that Section 5’s oversight would last “in perpetuity.”  Justice Scalia asserted that Section 5 served as a “perpetuation of racial entitlement(s)." Voting is an American entitlement and if Congress deemed it necessary to provide oversight in covered jurisdictions to protect that entitlement, I would think it very difficult for the Supreme Court to say otherwise, even if things have changed. 

Gilda R. Daniels is Associate Professor of Law at the University of Baltimore School of Law and the Former Deputy Chief of the US Department of Justice Voting Section.