Lively Discussion at MSBA Supreme Court Roundup Panel

By Jonathan Biran

Yesterday at the MSBA Annual Meeting in Ocean City, the Appellate Practice Committee and Litigation Section put on a very good program about the U.S. Supreme Court’s soon-to-be concluded term. The panel was comprised of John Elwood, an appellate lawyer in the Washington, D.C. office of Vinson & Elkins; Jesse Holland, an Associated Press reporter who has covered the Supreme Court; and Prof. Louis Seidman, who teaches Constitutional Law at Georgetown Law Center. The moderator was Andrew Baida of Rosenberg Martin Greenberg LLP in Baltimore.

Among the cases the panel discussed were:

Schuette v. BAMN: In this 6-2 decision (with Justice Kagan recusing), the Court upheld Michigan voters’ amendment to the state Constitution prohibiting state and governmental entities in Michigan from including race-based preferences as part of the admissions process at state universities. There was much discussion among the panel of Justice Kennedy’s plurality opinion, in which he provided a “junior civics lesson” concerning the need to respect legislative decisions made by voters or their elected representatives after substantial political debate. Prof. Seidman viewed this invocation of the importance of the political process as a smokescreen (my phrase) to hide the result-oriented nature of the decision. Prof. Seidman noted that Justice Kennedy seems less inclined to resolve affirmative action cases through deference to the democratic process when legislatures actually enact affirmative action provisions. But, in this case, where voters prohibited affirmative action measures, Justice Kennedy saw the importance of respecting the voters’ wishes. Mr. Elwood – a former Kennedy law clerk – observed that Justice Kennedy includes the same type of “turgid” language that he used in this opinion in many of his opinions. Mr. Elwood suggested that when commentators agree with the outcome of a Kennedy opinion, they tend also to like the language that he uses to express his reasoning. The consensus on the panel was that, ever since Justice O’Connor left the Court, it has been “rough sledding” for proponents of affirmative action measures, with more such rough sledding likely to come. Mr. Holland said he was following affirmative action cases in the lower federal courts, and that there are a number of cases that could be candidates to be the Court’s next foray into this controversial arena.

McCutcheon v. Federal Election Comm’n: In a 5-4 decision, the Court struck down the limitations on aggregate political contributions to candidates for federal office. The panel agreed that this case shows the loosening of campaign finance restrictions that began with Citizens United v. Federal Election Comm’n, 558 U.S. 310 (2010), is a trend that is going to continue. As Mr. Elwood pointed out, this is an extremely pro-First Amendment Court; if a party before the Court can successfully robe itself in the First Amendment, they have a pretty good chance of prevailing these days. Prof. Seidman opined that this Court has a “very crabbed” view of what constitutes political corruption. He would prefer that the Court recognize that the power to outspend others in the political arena is equivalent to the power to corrupt, but this is an idea that the Court has squarely rejected. Indeed, the Court has made very plain that its view is that money equals speech, not corruption.

Town of Greece v. Galloway: In another 5-4 decision where Justice Kennedy was the deciding vote and wrote the majority opinion, the Court upheld an upstate New York town’s practice of inviting clergy to open town meetings with a prayer, where the prayers given were almost exclusively Christian. The panel noted that free exercise of religion cases also have been coming out differently since Justice Alito replaced Justice O’Connor. Mr. Elwood observed that free exercise cases have been a “bee in the bonnet” for Justice Kennedy, who has consistently opined that the republic can handle more religion in public life without establishing a state religion. Prof. Seidman noted that all three of the Court’s Jewish justices (Breyer, Ginsburg, and Kagan) dissented in Town of Greece. He also pointed out that the Court is currently composed of six Catholics, three Jews, and zero Protestants, making it a very different Court demographically than in ages past. (Prof. Seidman didn’t note the gender differences on the Court because the case that got him on the topic dealt with religion, not gender, but that obviously is a big difference as well.) Although Prof. Seidman would have decided the case differently, he said he prefers Justice Kennedy’s acceptance of sectarian prayers to a requirement that prayers in such public governmental gatherings be nonsectarian. Prof. Seidman’s point was that a nonsectarian prayer to a monotheistic God may purport to include everybody, but in reality it will exclude agnostics, atheists, and polytheists. At least with Christian or other overtly sectarian prayers, everybody knows that the prayer is not inclusive of everybody’s point of view. Mr. Holland asked Prof. Seidman whether he would be more comfortable with a moment of silent reflection prior to a town hall meeting; Prof. Seidman answered in the affirmative, because silent reflection can be inclusive of everybody, even if some people use the moment of silence to pray to a God that others do not believe in.

McCullen v. Coakley: The issue in this abortion-related case, which has not been decided yet, is whether a Massachusetts law making it a crime for speakers other than abortion clinic employees to enter a 35-foot buffer zone around the entrance to a clinic violates the First and Fourteenth Amendments on its face and as applied to the petitioners (pro-life individuals who wanted to speak with women planning to enter the clinic). Based on Justice Kagan’s tough questioning for the lawyer representing Massachusetts concerning why 35 feet of space was necessary, Mr. Holland believes that the statute will be struck down, but perhaps just on the narrow ground involving the size of the buffer zone. Mr. Elwood predicted that, if Justice Kennedy writes the opinion invalidating the Massachusetts statute, he will do so by again invoking ideals of civics involving, in this case, the need for citizens to be able to speak to each other and hear each others’ points of view, etc. Prof. Seidman responded by noting the “doctrinal drift” that has been going on with respect to First Amendment jurisprudence. Whereas the First Amendment used to be routinely invoked during the Warren Court by left-leaning justices such as Justice Black and Justice Douglas, it has become the “darling of the right” in this era.

Sebelius v. Hobby Lobby Stores, Inc.: This case and another one challenge the Affordable Care Act’s requirement that businesses with more than 50 employees that provide health care coverage for employees must have plans that cover various contraceptive devices. The owners of Hobby Lobby Stores argue that this requirement violates their First Amendment rights because they object to some of these contraceptive devices based on religious grounds. Mr. Holland believes that this controversial case will likely be the last one decided this term, and could even possibly be held over for reargument. Mr. Holland has difficulty imagining a holding to resolve the case that can garner five votes. Prof. Seidman believes that Hobby Lobby will probably win, but if so, he believes the case will have been wrongly decided. He analogized this case to cases involving conscientious objectors, who could avoid service in the Armed Forces by performing alternative service. Here, the ACA allows business owners like Hobby Lobby’s owners to pay a tax rather than provide health insurance to their employees, if they don’t want to cover all the procedures and devices that the ACA requires. Thus, according to Prof. Seidman, the ACA does not substantially burden the business owners’ First Amendment rights.

The panel also discussed the recess appointments case, NLRB v. Noel Canning; a series of greenhouse gas cases (one of which Mr. Elwood is involved in, Coalition for Responsible Regulation v. EPA); Halliburton Co. v. Erica P. John Fund, Inc., which involves class certification in securities fraud cases; and two cases involving searches of cellphones incident to arrest. Regarding the cellphone cases, Mr. Elwood said that anybody who wants to feel good about the Supreme Court should listen to arguments in those cases because the justices were all trying to find the best answer, rather than accepting the more extreme bright line rules championed by the parties. Prof. Seidman’s rejoinder was that it would take more than one warm and fuzzy (again, my phrase) oral argument to restore his faith in the Supreme Court, which Mr. Elwood agreed would be a “heavy lift.” Prof. Seidman seems encouraged by the Court’s recent Fourth Amendment jurisprudence, which led him to describe the Fourth Amendment as the most exciting place in constitutional law right now, as what seemed to be settled pro-government precedents are now “up for grabs” again.

Thank you to Prof. Seidman, Mr. Holland, and Mr. Elwood for a very informative discussion. And thank you to Andy Baida and everyone else who had a role in putting together this program.