Monday, February 24, 2020

The Solicitor General and the Shadow Docket - Harvard Law Review

This essay by Stephen Vladeck (U Texas Law) provides the backup for Justice Sonia Sotomayor's recent dissent from the stay of an order blocking a particularly outrageous Trump Rule: barring admission to the US of anyone who might some day seek a public benefit.   Sotomayor accuses the Supreme Court of being a doormat for the Trump administration's  frequent requests to stay adverse orders below - a remedy infrequently granted until now when an aggressive administration meets a very sympathetic court. - gwc
Torts Today: The Solicitor General and the Shadow Docket - Harvard Law Review

Justices to take up case involving faith-based adoption agencies and same-sex couples - SCOTUSblog

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When a law of general application (such as the ban on use of Peyote) fall hard on persons based on their religion, the general law nonetheless survives.  
Last May I warned in a long opinion piece  that the principles of Employment Division v. Smith would survive if presented with the question might not survive if the Kavanaugh and Gorsuch enhanccd  conservative majority got their hands on Fulton and Catholic Social Services  v. Philadelphia.  The City refused to renew an adoption services contract because the Catholic organization, citing the Church's Catechism,  refused to place foster children with same-sex couples.  The Catechism of the Catholic Church (at 2357) regards homosexual acts as "intrinsically disordered", a violation of natural law, and says that homosexuals are "called to chastity". 
That time of reckoning has come.  The US Supreme Court today granted cert in response to a petition by the conservative Becket Fund which represents Catholic Social Services.  
As a matter of `forward precedent' the fear is that if a publicly funded adoption agency need not be comply with a non-discrimination ordinance who else might avoid such strictures?- GWC
Justices to take up case involving faith-based adoption agencies and same-sex couples - SCOTUSblog
by Amy Howe
The Supreme Court returned from its winter recess today with just one new grant from last week’s private conference, but the newest addition to the court’s merits docket is a significant one. Next term the justices will hear oral argument in Fulton v. City of Philadelphia, a challenge by several foster parents and Catholic Social Services to the city’s policy of cutting off referrals of foster children to CSS for placement because the agency would not certify same-sex couples as foster parents. After they lost in the lower courts, the challengers went to the Supreme Court, where they asked the justices to weigh in on three questions: what kind of showing plaintiffs must make to succeed on this kind of religious discrimination claim; whether the Supreme Court should reconsider its 1990 decision in Employment Division v. Smith, holding that the government can enforce laws that burden religious beliefs or practices as long as the laws are “neutral” or “generally applicable”; and whether the government violates the First Amendment when it makes participation by a religious social-services agency in the foster-care system contingent on actions and statements by the agency that conflict with the agency’s religious beliefs.

China Postpones 2020 NPC Session “As Appropriate” & Imposes Near-Total Ban on Consuming Wild Animals – NPC Observer

China Postpones 2020 NPC Session “As Appropriate” & Imposes Near-Total Ban on Consuming Wild Animals – NPC Observer
The NPC Standing Committee (NPCSC) held a one-day session on Monday, February 24 and adopted two decisions that we will discuss below. It is worth mentioning that 57 legislators “attended” the session via videoconferencing (113 others showed up in person), and they voted by a show of hands in lieu of the usual electronic voting system.

To start, the NPCSC decided to postpone the NPC’s 2020 annual session “as appropriate” and to announce a new date separately. Since the NPCSC is unlikely to reconvene by the end of the month, it thus seems that it will have to break one of the NPC’s procedural rules. As we previously concluded, those rules would require that the NPCSC decide on a new date on Monday (assuming it wouldn’t meet again in February) and that the new date fall between March 24 and March 31 inclusive. The upshot of the NPCSC’s indecision today is either that the NPCSC wouldn’t meet by the end of March, or that the delegates wouldn’t have one month’s notice of the new start date.
We expect the NPCSC to convene a special session in early to mid-March to set a new date for this year’s NPC session.

The Decision has two core operative provisions.***

Saturday, February 22, 2020

Sotomayor says the Supreme Court puts “a thumb on the scale” for Trump - Vox

U.S. Supreme Court Justice Sonia Sotomayor In Conversation With Professor Peter Winn
Sotomayor says the Supreme Court puts “a thumb on the scale” for Trump - Vox
by Ian Millhiser
The Supreme Court voted along party lines Friday evening to allow a Trump administration rule restricting low-income immigrants’ ability to enter the US to take full effect. All four of the Court’s Democratic appointees dissented, with Justice Sonia Sotomayor writing a sharply worded dissenting opinion accusing her Court of “putting a thumb on the scale in favor of” the Trump administration.
“It is hard to say what is more troubling,” Sotomayor wrote. “That the government would seek this extraordinary relief seemingly as a matter of course, or that the Court would grant it.”
The Court’s decision in Wolf v. Cook County is a significant development in and of itself because of its potential impact on millions of immigrants. Last August, the Trump administration announced a new rule governing who would be classified as a “public charge — essentially someone reliant on government aid programs — and thus potentially unable to enter the United States, extend their visa, or obtain a green card. The new rule gives immigration officials leeway to turn away immigrants deemed “likely to be a public charge,” based on a wide range of factors including use of certain public benefits and English language skills.
As much as 69 percent of the more than 5 million individuals who received a green card over the past five years have at least one negative factor against them under the new rule, and thus might have been denied immigration benefits had the new rule been in effect.

Sotomayor is concerned the Supreme Court is granting too many stays — and for good reason

Sotomayor’s dissent focuses less on the question of whether the Trump administration's public charge rule is legal, and more on what she describes as a “now-familiar pattern” in the administration’s interactions with the Supreme Court.
At least two lower courts handed down orders blocking the new public charge rule — one of those decisions blocked the rule across the country, while the other blocked it only in Illinois. Last month, the Supreme Court voted 5-4 along familiar partisan lines to stay the lower court order blocking the rule on a nationwide basis. Friday’s order stays the decision blocking it in Illinois.
Until recently, it was extraordinarily unusual for the government to seek such a stay from the justices while a case was still winding its way through lower courts. As Sotomayor warned in a dissenting opinion last September, “granting a stay pending appeal should be an ‘extraordinary’ act. Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal.”
According to a recent paper by University of Texas law professor Stephen Vladeck, “in less than three years, [Trump’s] Solicitor General has filed at least twenty-one applications for stays in the Supreme Court (including ten during the October 2018 Term alone)” — and Vladeck’s paper did not include the Trump administration's two applications in the public charge cases. By comparison, “during the sixteen years of the George W. Bush and Obama Administrations, the Solicitor General filed a total of eight such applications — averaging one every other Term.”
The Trump administration, moreover, has a high win rate when it seeks extraordinary relief from the Supreme Court. It’s achieved a partial or full victory in about 65 percent of the cases where it asked the Supreme Court to temporarily block a lower court’s opinion.

Affirmative Action: The Uniquely American Experiment - The New York Times

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Convenient amnesia was an important byproduct of the now dominant view of how to overcome the effects of two hundred years of slavery and one hundred years of legally sanctioned discrimination against African Americans and anyone not "white".  Post World War II people like my family benefited from the "GI Bill" - the comprehensive set of federal benefits that built the suburbs.  Free public colleges, stipends, and government insured VA mortgages for the full purchase price of a newly built single family home.  For whites only due to a Federal Housing Administration requirement of racially harmonious communities.  Orlando Patterson aptly labels that "white affirmative action".  I was a beneficiary of that program, growing up on Long Island in the archetypal post-war 100% white suburb of Levittown, New York.

The United States Supreme Court declared in Brown v. Board of Education (1954) that separate was not equal.  It's directive to dismantle segregation "with all deliberate speed" was met with massive resistance across the south.  Conservative Democrats like Georgia federal appeals judge Griffin Bell opposed "affirmative action", arguing that it was, like prohibition, doomed to fail in the face of cultural resistance.  The Supreme Court. bolstered by the Civil Rights Act of 1964, briefly embraced affirmative action, demanding in Green v,. New Kent County (1968) that the dual school system and its effects be eliminated "root and branch".  School busing and other remedies were endorsed by the Supreme Court in Charlotte, N.C. in 1971, when the majority managed to enlist Nixon's Chief Justice Warren Burger.

But that was the high point.  White cultural resistance in the suburbs of Detroit and the City of Boston were fatal to public school integration plans in the "de facto" "voluntarily segregated" northern schools.  Courts could not demand affirmative action if it crossed local school district lines, said Chief Justice Warren Burger in Milliken v. Bradley the 1974 decision voiding a desegregation order encompassing metropolitan Detroit.  So-called "white flight" was treated as a voluntary  cultural phenomenon (viz. soon to be President Jimmy Carter's Attorney General Griffin Bell) beyond the reach of the courts and of the equal protection principles of the Fourteenth Amendment.

Since then affirmative action has hung on by a thread, abjured as a remedy - except for formal legal segregation - a narrow slot remained.  It was carved by the concurring opinion of former railroad lawyer Lewis Powell in Bakke v. Board of Regents. (1977)  "Diversity", he wrote, was a legitimate objective in higher education.  That thin reed is all that has survived the scrutiny of a Supreme Court which repudiates compensation for centuries of slavery and legal apartheid and "white affirmative action".  Even voluntary efforts to achieve integration were repudiated by Chief Justice Roberts for a plurality in Parents Concerned v. Seattle.  The way to stop discrimination by race is to stop discriminating by race, he wrote in a maxim sure to appear in his obituary along with the balls and strikes metaphor that helped him win confirmation by the Senate.

I'll let Melvin Urofsky and his brilliant reviewer Orlando Patterson take it from here. - GWC

Affirmative Action: The Uniquely American Experiment - The New York Times 

A Supreme Court for the Rich - The New York Times

Behind the corinthian columns of the United States Supreme Court sit  guardians of civic virtue.  Their devotion to "equal justice under law" is carved in the marble facade. 

But Adam Cohen devotes his new book to demonstrating that after the brief flowering of such commitment in the Warren Court era retrenchment began in 1969 with the election of Richard Nixon who named the intellectually shallow but reliably conservative Warren Burger as Chief Justice.  It has gotten worse since then.  William Rehnquist was followed in the post by the "balls and strikes" conservatism of his former law clerk John Roberts.

A particularly defining low point was Rodriguez v. San Antonio, the 1973 decision in which the court rejected actions to equitably fund public schools, saying that economic inequality was beyond the reach of the Equal Protection Clause of the post-Civil War 14th Amendment.

Kenji Yoshino lauds Adam Cohen's effort but regrets that he has little to add about how to remedy the situation.  That road will require a major shift in the composition of the federal judiciary, top to bottom.  Better luck may be found in the courts of the so-called Blue States. - gwc
A Supreme Court for the Rich - The New York Times
by Adam Cohen
Review by Kenji Yoshino

Thursday, February 20, 2020

Federal Court Finds Conditions in Customs and Border Protection Detention Facilities Unconstitutional - National Immigration Law Center

Federal Court Finds Conditions in Customs and Border Protection Detention Facilities Unconstitutional - National Immigration Law Center
TUCSON, AZ — A federal court today ordered U.S. Customs and Border Protection to overhaul the way the agency detains people in its custody in its Tucson Sector. The court found that the conditions in CBP holding cells, especially those that preclude sleep over several nights, are presumptively punitive and violate the U.S. Constitution.
The court’s order enjoins CBP from holding detainees longer than 48 hours “unless and until CBP can provide conditions of confinement that meet detainees’ basic human needs for sleeping in a bed with a blanket, a shower, food that meets acceptable dietary standards, potable water, and medical assessment performed by a medical professional.”
The lawsuit, Doe v. Wolf, was filed by the National Immigration Law Center, the American Immigration Council, ACLU of Arizona, the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, and Morrison & Foerster LLP.
The following comments are from:
Individual formerly detained by CBP in the Tucson Sector, identified as Witness B during trial in this litigation: “I feel very happy to know that things are going to change in these detention centers and that people will not have to spend much time under the conditions I was detained in. It is really a joy to know that the necessary medical care will be available, that there will be other food available, and that those who have to be detained for longer periods of time will be held in a place where conditions are adequate. I am very happy to know that I helped make things better for all of the people who follow. So many people will benefit from being treated better during the time they have to be detained there.”
Alvaro M. Huerta, staff attorney at the National Immigration Law Center: “Today’s decision is a tremendous victory for communities everywhere fighting courageously to uphold human dignity and the rights enshrined in our Constitution. The court recognizes the grave injustices suffered by our brave plaintiffs and tens of thousands of others similarly detained by the Border Patrol in deplorable, dangerous conditions in the Tucson Sector. We are enthused that our justice system has intervened in a meaningful way to institute much-needed change and hold CBP accountable.”
Mary Kenney, directing attorney of litigation with the American Immigration Council: “Through this lawsuit, we have been able to shed light on the realities of the inhumane treatment of migrants in CBP detention facilities. In its decision, the court recognized that conditions in CBP’s Tucson Sector are ‘substantially worse’ than those afforded criminal detainees in jail facilities. Today’s monumental victory ensures that CBP cannot hold migrants in the Tucson Sector over 48 hours without providing conditions that meet basic human needs and serves as an example of the standards that should apply in all CBP facilities.”

Adam Serwer: The First Days of the Trump Regime - The Atlantic

Adam Serwer: The First Days of the Trump Regime - The Atlantic
***Modern authoritarian institutions diligently seek to preserve the appearance of democratic accountability. Perhaps for this reason, Barr has insisted publicly that he is protecting the independence of the Justice Department. “I’m not going to be bullied or influenced by anybody,” he told reporters last week. Barr insisted, “If Trump were to say ‘Go investigate somebody,’ and you sense it’s because they’re a political opponent, then an attorney general shouldn’t carry that out, wouldn’t carry that out.” This is a lawyerly dodge masquerading as bluster—Barr does not need to be bullied into shielding Trump and his friends or pursuing his enemies. Indeed, Barr’s task is to do so while maintaining a veneer of legitimacy over the process, which is impossible to do when Trump makes such demands publicly. Privately, Trump seethes that Barr has not thrown more of his critics in prison, as Barr and his underlings scheme to sate the president’s rage.
Although in nearly every other context, Barr has been an advocate for the harshest possible punishments, it would be wrong to say his insistence on leniency for Stone is inconsistent or out of character. He has attacked the reform-minded district attorneys who are pursuing less harsh punishments as “anti-law-enforcement DAs” who are seeking “pathetically lenient” sentences. And he has warned critics of police misconduct that if they don’t “respect” law enforcement, “they might find themselves without the police protection they need”—turning policing from a public service into a protection racket. But Barr is also the man who pushed for pardons for high-ranking government officials who broke federal law in the Iran-Contra affair. The underlying principle here, from Stone to Iran-Contra, is authoritarian but consistent: Members of the ruling clique are entitled to criticize law enforcement without sanction, and entitled to leniency when they commit crimes on the boss’s behalf. Everyone else is entitled to kneel.***

Wednesday, February 19, 2020

11th Circuit: Florida cannot condition voting on payment of fines, etc.

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In a historic vote Floridians restored voting rights to felons who had "completed" all terms of their sentence.  But after that moment of public enlightenment the Republican Legislature and Governor implemented it by requiring that all fines, etc. have been paid before the million or more released convicts could vote.
In an historic ruling today the U.S. Court of Appeals for the 11th Circuit held in Jones v. Governor of Florida that conditioning vote on payment violates the Equal Protection clause of the 14th Amendment. The Circuit court in its per curiam opinion declared "But whether sounding in equal protection or due process, [the] Griffin[v. Illinois, 351 U.S. 12, 16 (1956)] equality principle is straightforward: the state may not treat criminal defendants more harshly on account of their poverty".

Florida's Amendment 4 provided that a felon’s “voting rights shall be restored upon completion of all terms of sentence including parole or probation.” Following its passage, the Florida legislature passed Senate Bill 7066, which implemented the Amendment and interpreted its language to require payment of all fines, fees and restitution imposed as part of the sentence (collectively, “legal financial obligations” or “LFOs”). The Florida Supreme Court in an Advisory Opinion on January 16, 2020 later agreed with the legislature’s interpretation of the Amendment—during the pendency of this appeal, it held that the plain text of Amendment 4 requires payment of all LFOs as a precondition of re-enfranchisement.