Friday, April 29, 2016

At High Court, Lower Standards for Public Officials?

      Bob McDonnell, former governor of Virginia, may end up beating the rap for all those gifts he got while in office from a snake oil salesman seeking help from the state government. Judging from Supreme Court arguments earlier this week [April 26], five or six of the justices seem ready to agree with McDonnell’s attorney and his many supporters that McDonnell’s public corruption conviction threatens the very nature of representative government in 21st century United States.
      A ruling for McDonnell seems unlikely to revive the political fortunes of the one-time rising Republican star. But a broadly written decision to throw out the convictions will hamper future public corruption prosecutions and make the practice of “pay for play” all the more common than it already is: mostly legal if done with a wink and a nod.
      A federal court jury of McDonnell’s peers (or perhaps his betters) convicted the former Republican chief executive of eleven counts of fraud in September 2014 after 17 hours of deliberation following a six-week trial. Ever since the scandal was first aired in the news media and then in court, McDonnell has stoutly maintained his innocence.
      McDonnell insists that he never really did anything for the gift-giving diet supplement executive Johnnie Williams except meet with him, host events, and arrange meetings. The jury was not buying it, but McDonnell’s appellate attorney Noel Francisco made more headway with the argument at the Supreme Court.
      Francisco urged the justices to rule that for a public official to engage in an “official act” under federal anti-corruption statutes the official “must either make an official decision or urge someone else to do so.” The line, Francisco said, is between “access to the decision-makers” — apparently OK — “and trying to influence those decisions.” Despite setting up the meetings, McDonnell never actually urged state regulators or university researchers to help Williams market or prove the efficacy of his Star Scientific diet supplement Anatabloc.
      The justices probed Francisco’s arguments, but more politely than customary for a bench that remains very hot even after the volatile Antonin Scalia’s death. When the government’s lawyer Michael Dreeben took the lectern, however, he encountered tough questions quickly — first from Chief Justice John G. Roberts Jr. and then the other two justices at the court’s ideological center, Anthony M. Kennedy and Stephen G. Breyer.
      Silent during Francisco’s argument, Roberts began by quoting what he called an “extraordinary” amicus brief filed on behalf of White House counsels for the five past presidents. They all warned, Roberts said, that upholding McDonnell’s conviction would “cripple the ability of elected officials to fulfill their role in our representative democracy.”
      Breyer too worried about public officials unclear about where to draw legal lines and about executive branch prosecutors with “dangerous” powers to go after legislators. “My problem is the criminal law as the weapon of choice,” he said.
      The gifts that Williams lavished on McDonnell and his now estranged wife came to $175,000 in all, according to the government’s estimate. They are too numerous and too petty to mention all in a column, but among them a personally inscribed Rolex watch, golf equipment, golf outings, a vacation, and an outright undocumented five-figure loan. The justices, however, came up with hypotheticals that reduced the legal issue to trifles: an afternoon of trout fishing, Roberts suggested, or from Breyer a bottle of expensive French wine.
      Dreeben, a deputy solicitor general with 27 years in the office, did his best to answer the justices’ concerns in what was his milestone 100th argument before the court. Legalizing this kind of quid for public officials is a “recipe for corruption” and would send a “terrible message for citizens,” Dreeben said. But where’s the quo, Roberts asked. Dreeben stood his ground. Helping arrange “a preferential opportunity” that other citizens do not have is “official action,” he answered.
      When Francisco returned for rebuttal, Justice Ruth Bader Ginsburg put Dreeben’s argument to him, but Francisco similarly stood his ground. No crime, Francisco answered, if the official did not actually try to influence the outcome. Earlier, Justice Sonia Sotomayor had similarly challenged Francisco by suggesting that state officials certainly might have thought McDonnell was trying to influence them.
      To Breyer’s concern, Dreeben pointed to the pride of the U.S. criminal justice system: the jury. “There is a very critical protection here,” Dreeben said. “It’s the requirement of showing something beyond a reasonable doubt to a jury.” Kennedy was unmoved. “You’re going to tell the senators, the officials with the lunches, don’t worry,” Kennedy said, mockingly. “The jury has to be convinced beyond a reasonable doubt, and that’s tough.”
      Anti-corruption prosecutors and good-government types confront the stark reality that money is more and more the mother’s milk not only of politics but also of governance. And political practitioners are too clever to be constrained by straightforward quid pro quo bribery laws.
      Neither of the statutes used in the McDonnell indictment is a bribery statute as such. The Hobbs Act, aimed at labor unions when enacted in 1946, prohibits obtaining money “under color of official right.” The “honest services fraud” statute, enacted in 1988, prohibits depriving someone (think: constituents) of “the intangible value of honest services.” A jury found McDonnell guilty of conspiring to do both. Oddly, a majority of the justices seem ready to narrow those laws to hold public officials not to the highest but to a lower standard.

Sunday, April 24, 2016

A Shy Teen's Stand for Transgender Rights

      In years to come, Gavin Grimm may be remembered just as Rosa Parks is today for a seemingly simple act of self-assertion that helped bring the country closer to the Pledge of Allegiance ideal of liberty and justice for all.
       Parks’ refusal to yield her seat on a Montgomery, Ala., bus in 1955 helped spark the boycott of the city’s racially segregated bus system and in time repeal of the ordinance forcing black bus riders to the back. Gavin, a teen-aged transgender boy in Gloucester County in southeastern Virginia, wanted merely to use the boys’ restroom at his school and went to court to establish his right to use the restroom that corresponds to his gender identity instead of his biological sex.
      The Rosa Parks story is part myth: she was not the quiet, unassuming seamstress as often depicted but in fact the secretary of the local NAACP and an activist trained in civil disobedience. Gavin, on the other hand, appears to be nothing more than a somewhat shy, video game-playing teenager who wants to get about his school work without a lot of fuss. Today, however, he has become a national poster boy for transgender rights who says he hopes his legal fight “will help other kids avoid discriminatory treatment at school.”
      Gavin might have been spared his legal troubles but for the overwrought reaction of townsfolk in rural Gloucester County. Gavin, who was born female, came out to his mother as transgender in his freshman year and with his mother went to the Gloucester High School principal with the information at the start of his sophomore year in fall 2014. By then, he was taking hormone therapy, and he changed his name legally later that year.
      The school administration was “supportive,” according to the account in the appeals court decision in Gavin’s favor last week [April 19]. School officials “took steps to ensure that he would be treated as a boy by teachers and staff” and then, at Gavin’s request, allowed him to use the boys’ restroom. Gavin used the boys’ restroom for seven weeks “without incident,” according to the court, but the word that got out “excited the interest of others in the community.”
      The Gloucester School Board would have none of it even with Gavin and his mother in the audience at two meetings, in November and December. The meetings were sellouts: 27 people spoke at the first, 37 at the second, most of them at both in favor of the proposed policy segregating restrooms and locker facilities by birth sex instead of gender identity. As the court recites, speakers called Gavin a “young lady,” and one called him a “freak.”
      The board approved the policy by a 6-1 vote; the school responded by allowing Gavin to use a separate, single-user restroom. But, as Gavin related at trial, “Being required to use the separate restrooms sets him apart from his peers, and serves as a daily reminder that the school views him as ‘different.’” Represented by American Civil Liberties Union lawyer Joshua Block, Gavin sued the school in June 2015, claiming that the policy violated the federal law known as Title IX that prohibits sex discrimination in public schools.
      The trial before senior federal judge Robert Doumar, a Reagan appointee now in his mid-80s, did not go well for Gavin. Doumar was unsympathetic on the facts and unconvinced on the law. Doumar characterized gender dysphoria as a “mental disorder” and resisted arguments from Block that it becomes a disorder only if untreated. With no medical training, Doumar doubted Gavin’s testimony that he had developed urinary infections from “holding it in” while at school.
      As for the law, Doumar held that “sex” under Title IX refers only to biological sex, not to gender identity. He discounted the legal opinion from the Department of Education’s Office of Civil Rights in January 2015 requiring schools to treat transgender students “consistent with their gender identity.”
      In a split decision, a three-judge panel of the Fourth U.S. Circuit Court of Appeals ruled Doumar was wrong on the law and sent the case back to him to reconsider Gavin’s request for an injunction allowing him to use the boys’ restroom as before. Doumar had reasoned that the harm to others outweighed any harm to Gavin. As Judge Henry Floyd wrote for the majority, the school board offered no evidence that Gavin’s use of the boys’ restroom was a safety issue.
      By remarkable coincidence, Floyd also wrote for a three-judge panel in 2014 in invalidating Virginia’s ban on same-sex marriages and the dissenting judge, Paul Niemeyer, dissented again in Gavin’s case. Like Doumar, Niemeyer simply denies transgenderism: boys are boys, girls are girls, end. With that view, Niemeyer viewed Title IX’s use of “sex” as “unambiguous” in referring to biological sex.
      On that point, law nerds will note that the case turns on what is called Auer deference after a 1997 Supreme Court decision. The ruling requires courts generally to defer to an agency’s interpretation of its own regulations. Back before Doumar — the appeals court declined to reassign the case — Gavin still faces a judicial minefield. But in an essay for Time, Gavin says the case has helped start a needed conversation. Some of his schoolmates opened up, he wrote, once they were exposed to the conversation. “And that,” he concludes, “is extremely, extremely important.”

Sunday, April 17, 2016

Conservatives on Skids Before Scalia's Death

      In baseball, the tie goes to the runner. At the Supreme Court, a tie goes to the lower court. Thus, when eight justices are evenly divided, the Court’s decision reads in its entirety, “The judgment is affirmed by an evenly divided Court.”
      So far this term, Justice Antonin Scalia’s death has resulted in two 4-4 decisions. Conservatives won a minor victory in one that narrowed the federal credit discrimination law. But liberals scored the bigger win in Friedrichs v. California Teachers Association by rescuing from a likely overruling a 40-year-old precedent vital to the financial security of public employee unions. The justices’ individual votes are not announced in such cases, but the justices likely divided in each along the usual conservative-liberal lines.
      More deadlocks seem likely despite what Justice Elena Kagan has described as Chief Justice John Roberts’ efforts to avoid them. Conservatives are poised to prevail if tie votes emerge in two remaining big cases, both decided by the predominantly conservative federal appeals court for the Fifth Circuit.
      The justices appeared equally divided in arguments last month on a Texas law, upheld by the appeals court, that could force most of the state’s abortion clinics to close. And they may well be equally divided in arguments on Monday [April 18] as the Obama administration seeks to overturn the Fifth Circuit’s decision blocking the president’s policy of “deferred action” on an estimated 4 million undocumented migrants.
      Scalia’s death in February has deprived the court’s conservative bloc of the needed fifth vote to overcome a united bloc of four liberal justices. But the court’s decisions already announced in cases argued before Scalia’s death show that the Roberts Court, even with Scalia’s votes, was turning its back on some of the biggest items on conservative groups’ wish-lists.
      In a major setback for Republicans and conservatives, the court earlier this month rejected an effort to upset the established practice of using total population as the basis for applying the “one person, one vote” rule in redistricting cases. Republicans and conservative groups had invested time, money, and effort in a suit seeking to count eligible voters instead of total population in drawing equal-population districts.
      The proposed change was widely seen as likely to benefit Republicans by reducing representation in traditionally Democratic urban areas with significant numbers of noncitizens and children. All eight of the justices rejected the Texas voters’ argument to require eligible-voter population as the only basis for equalizing districts. Justice Ruth Bader Ginsburg’s opinion for six of the justices in Evenwel v. Abbott cast doubt on using voter population at all, but two conservatives — Clarence Thomas and Samuel A. Alito Jr. — suggested state and local government should have that as an option.
      Scalia’s vote in the case, argued in December, is undisclosed, but he was oddly silent during the arguments — suggesting perhaps that he recognized the plaintiffs’ argument as a nonstarter. In any event, Roberts and Justice Anthony M. Kennedy gave the liberal bloc two votes for throwing cold water on the proposed change.
      Roberts and Kennedy similarly sided with the four liberals in an important class action case decided in March. The 6-2 decision in Tyson Foods, Inc. v. Bouaphakeo upheld a $2.9 million award against Tyson for failing to pay meat plant workers overtime for the time spent in “donning and doffing” protective gear required for their jobs. Plaintiffs used a statistical study to estimate the “average” time required, but the company — backed by major business groups — wanted a flat rule against the use of so-called “representative evidence.”
      Kennedy rejected the argument. “A categorical exclusion . . . would make little sense,” he wrote. Thomas and Alito dissented. Scalia’s vote in the case, argued in November, is again undisclosed, but given his hawkish stance against class actions in previous cases he likely joined the other two conservatives in dissent.
      Kennedy also gave the liberal bloc a crucial vote in an earlier effort to make class actions more difficult for plaintiffs. In Campbell-Ewald Co. v. Gomez, the court in December blocked business defendants from thwarting potential class actions by offering the named plaintiff the full amount of his or her claimed damages. Ginsburg wrote the majority opinion; Thomas concurred in the judgment. Scalia was one of three dissenters, along with Roberts and Alito.
      The two most closely divided criminal law decisions of the term so far also ended with liberal rulings. In Montgomery v. Louisiana, the court decided that its earlier decision barring mandatory life-without-parole sentences for juvenile murderers applies retroactively. Scalia was one of three dissenters in the new decision, issued in January.
      This month, the court in Luis v. United States blocked the government from freezing a defendant’s legitimate assets if needed to pay his or her lawyer. The lineup in the 5-3 decision crossed usual ideological lines: Kennedy, Alito, and Kagan were the dissenters. Scalia’s vote is again undisclosed.
      The fragmentation of the conservative bloc underscores Senate Republicans’ stakes in blocking President Obama’s nomination of federal judge Merrick Garland as Scalia’s successor. In an earlier era, Garland could have won unanimous confirmation — as Kennedy did in 1988. But today’s Republicans are interested in confrontation, not consensus, with no regard for the effect on the court or its reputation.

Thursday, April 14, 2016

Much Ado About "Confirmation by Proclamation"

      It’s not enough that partisan Republicans are denouncing President Obama for trampling on the Constitution by, for example, exercising discretion on enforcing federal immigration laws. Now, a conservative website is suggesting with no evidence whatsoever that the White House may be behind the widely criticized suggestion that the president could install federal judge Merrick Garland on the Supreme Court without any action by the Senate.
      Gregory Diskant, a partner with the Wall Street law firm Patterson Belknap Webb and Tyler, put forth the idea in an op-ed published last week [April 8] in The Washington Post. The op-ed apparently was “the most [un]popular” article on the Post’s website over the weekend, producing “thousands of outraged comments,” according to LawNewz columnist Rachel Stockman.
      The conservative web site Breitbart followed with an equally critical story the next day [April 11], but reporter Ken Klukowski added the suggestion that Diskant might have been acting in concert with the White House. “[T]here is a serious possibility,” Klukowski wrote, “that he is floating a trial balloon for the White House, gauging the public’s willingness to accept such a fundamental change in the Constitution’s separation of powers and system of checks and balances.”
      Not since Shakespeare has there been more ado about so little. Diskant appears to be only the second person count ’em, two to raise in print the possibility of a unilateral presidential appointment to the Supreme Court. Richard Primus, a University of Michigan law professor, first broached the idea in an article in Politico [March 29]. “You could argue” that the president could bypass the Senate that way, Primus wrote. But a columnist for the Detroit News wrote later [April 13] that Primus “doubts” that Obama would do so.
      Ironically, Obama could have installed Garland on the Supreme Court in February by exercising his undoubted power to fill the vacancy while the Senate was in recess. Garland could have taken his seat and helped avert any 4-4 ties in the cases to be argued in February, March, and April. But Obama chose not to act even though Senate Republican Leader Mitch McConnell had already announced the plan to deny a hearing for whomever Obama might nominate.
      President Dwight Eisenhower twice used the recess appointment power to fill Supreme Court vacancies: Earl Warren in 1953 and William J. Brennan Jr. in 1956. The recess appointments were uncontroversial, and both Warren and Brennan went on to win Senate confirmation for full terms by voice votes.
      That was then, this is now. In his article, Diskant aptly suggested that the Senate Republicans’ refusal to consider Garland’s nomination is evidence of a “broken” system. He then went one step further to argue that Obama could treat the Senate’s failure to act a waiver of its “advice and consent” power under the Constitution and proceed to exercise his power to “appoint” Garland on his own.
      From available evidence, Diskant appears to have offered his suggestion of a unilateral presidential appointment for himself and no one else. He was identified as a member of the national board of the citizens’ advocacy group Common Cause, but the group’s position is to urge the Senate to follow normal procedure and old a hearing on Garland’s nomination.
      Diskant also identified himself as law clerk to the late justice Thurgood Marshall in the 1975 term, but he cited nothing in Marshall’s writings or any other Supreme Court opinion as authority for his view. He also claimed that there are historical precedents for such a unilateral presidential appointment, but cited no specific example.
      In his article, Primus imagined the possibility of a unilateral presidential appointment only if the impasse continued into the term of the next president. “At some point,” Primus wrote, “someone in the White House counsel’s office will notice that the Constitution doesn’t actually see that the Senate needs to vote to confirm a judicial nominee.” Primus was law clerk to Justice Ruth Bader Ginsburg, but he too cited no Supreme Court authority for his suggestion.
      Diskant’s op-ed carried this headline in the online version: “Obama can appoint Merrick Garland to Supreme Court if the Senate does nothing.” Three days later, the Post’s website carried a reply by Case Western Reserve law professor Jonathan Adler under the headline, “No, President Obama CANNOT appoint Merrick Garland to the Supreme Court does nothing.”
      Adler noted that Diskant’s suggestion had been criticized from the right by National Review commentator Ed Whelan (“gobsmacking stupidity”) and from the left by Center for American Progress legal affairs writer Ian Millhiser (“dumb”). Diskant’s argument, Adler concluded, “is extremely hard to take seriously.”
      Even so, Garrett Epps, columnist for, took the proposal seriously enough to treat it in a critical column [April 14] and attribute the idea to “a handful of [unnamed] progressives.” Epps, a friend, college classmate, and respected Supreme Court expert, thus feeds the suggestion that mischief may well be afoot.
      For better or worse, there is not. As far as the public record shows, the only people espousing the “progressive argument” for what Epps calls “confirmation by proclamation” are one law professor and one New York lawyer, neither with any evident ties to the White House. Whatever Republicans may think Obama has done to exceed his constitutional powers, there appears to no plans for a presidential putsch at the Supreme Court. Time to take a breath and relax.

Sunday, April 10, 2016

We the People: Celebrating the "Lived Constitution"

      Chief Justice John Roberts closed his dissent in the marriage equality case by assuring same-sex couples that they were free to celebrate their victory. “But do not celebrate the Constitution,” Roberts added sternly. “It had nothing to do with it.”
      To the contrary, according to Georgetown law professor David Cole in his new book Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law. “The Constitution had everything to do with it,” Cole says of the court’s 5-4 decision last June. [Disclosure: Cole is a personal friend and Georgetown faculty colleague.]
      As Cole suggests in the subtitle, however, the credit or discredit for the landmark decision in Obergefell v. Hodges goes not to the justices on the Supreme Court, but to engaged citizen activists who “made” constitutional law through a combination of intellectual discourse and strategic political and legal advocacy. “The bulk of constitutionalism actually takes place outside the [Supreme] Court,” he writes.
      The gay marriage decision is the most recent and most dramatic example of citizen-made constitutional law in Cole’s telling, but not the only one. The label applies equally to the gun-rights decision in Heller v. District of Columbia that Roberts joined seven years earlier.
      The late justice Antonin Scalia debunked the idea of a “living Constitution,” the slogan popularized by among others the great liberal justice of an earlier era William J. Brennan Jr. Scalia took puckish delight in startling listeners or readers by describing the nation’s founding charter as a “dead Constitution” — its meaning today fixed by its original meaning when written. Cole takes Brennan one step further by saying that it is not a “living” Constitution but a “lived Constitution” – its meaning changed by words and deeds of those who use its text to expand liberty in ways unforeseen when written.
      Cole, a committed liberal, may surprise some or even most of his readers by linking the gay marriage and gun rights rulings. Liberals hailed the first and denounced the other with the same fervor conservatives brought to attacking the first and celebrating the other. The libertarian Cato Institute was the only legal advocacy group to back the winning side in each at the Supreme Court.
      Introduced at a Georgetown Law School event last week [April 7] as a “public intellectual,” Cole finds in each of the two cases the power of an idea to turn the unthinkable into the inevitable. For gay marriage, the seminal writing is Evan Wolfson’s 141-page research paper completed in 1983 as a 3L at Harvard Law School proposing a constitutional right for same-sex couples to marry. For gun rights, the seminal writings are a half dozen law review articles written by Stephen Halbrook in the 1980s seeking to find an individual right to “keep and bear arms” in the Second Amendment despite that militia clause at the beginning.
      Wolfson’s idea was so preposterous that he had found no constitutional law professor to sponsor his paper, only an expert on wills and trusts. Halbrook found law journal editors willing to take his articles — tellingly, the George Mason Law Review was the first — but Cole notes that no less an authority than the former chief justice Warren E. Burger denounced the individual rights view of the Second Amendment in 1991 as “a fraud.”
      If either of those ideas had been squarely presented to the Supreme Court in the 1980s or 1990s, Wolfson or Halbrook would have been lucky to get two votes or even one. But instead gay marriage and gun rights advocates were working to build support and move forward step by step, state by state — strategies of “patient incrementalism,” in Cole’s phrasing — even as there were internal divisions within each of the movements on how best to proceed.
      For gay marriage, same-sex couples in Hawaii forced the issue despite opposition from national organizations. The result was a national backlash emblemized by the Defense of Marriage Act and overcome only by the slow succession of victories beginning in the late 1990s. Gun rights supporters experienced no comparable nationwide backlash as they made slow gains with enactment of “shall carry” laws in state legislatures.
      As the endgames neared, national organizations were wary of taking their cases to the Supreme Court. The National Rifle Association was not ready for Heller to go to the justices. Gay rights organizations were livid when the dream team of Theodore Olson and David Boies took the California Proposition 8 case to the court in 2012.
      In the end, each of the two movements won 5-4 decisions establishing rights that Cole aptly says are “not self-evidently supported by the Constitution.” Today, he expects neither decision to be overruled even as opponents call for that to happen. Despite those attacks, both decisions now command popular support as measured by public opinion polls.
      “The Supreme Court doesn’t change constitutional law so much as it recognizes that constitutional law has changed,” Cole remarked at the law school event. Scalia, one imagines, is turning over in his grave. He viewed anything other than originalism and strict textualism as anti-democratic, a usurpation of political power by unelected, unaccountable judges.
      To the contrary, Cole says. Constitutional law, as actually lived, is “more democratic than commonly understood.” We the People rewrite the Constitution generation by generation through words and deeds – and thus, one can add, it endures.

Sunday, April 3, 2016

Charlotte Too Busy to Hate, but Not North Carolina

      When the Supreme Court struck down racial segregation in public schools in 1954, the Virginia legislature responded by requiring the state to close any schools ordered by a federal court to desegregate. When the court applied the same rule to parks and recreational facilities, many local communities, including my home town of Nashville, Tennessee, responded similarly by closing public swimming pools.
      The North Carolina legislature has now tried a similar tack to deflect moves toward legal equality for the state’s LGBT citizens. When the city of Charlotte adopted an ordinance prohibiting discrimination in employment or public accommodations on the basis of sexual orientation or gender identity, the state’s lawmakers responded with a law nullifying the ordinance and blocking any other municipalities from following Charlotte’s example.
      In effect, North Carolina closed the local political process to advocates for LGBT equality by adopting a policy that discrimination in employment and public accommodations was “a matter of statewide general concern” outside the authority of any local government to regulate. The Republican-controlled legislature met in a specially convened session to consider the bill and approved it in both chambers on a single day [March 23]. The state’s Republican governor, Pat McCrory, signed the bill late the same evening.
      Even as the bill was moving along this extremely fast track, opponents were suggesting that it was plainly unconstitutional under a Supreme Court decision in 1996 striking down an anti-gay ballot measure. The voter-approved constitutional amendment at issue in Romer v. Evans would have prevented the state or any local government from enacting a law to prohibit discrimination on the basis of sexual orientation.
      In a 6-3 decision authored by Justice Anthony M. Kennedy, the court said that the amendment disqualified an identifiable class of persons from seeking legal protection against arbitrary discrimination. The amendment, Kennedy concluded, was “a denial of equal protection in the most literal sense.”
      Unlike the Colorado measure, the North Carolina law, known by its bill number HB2, lacks explicit evidence of singling out LGBT individuals. The law instead declares a state policy of preventing discrimination in employment or public accommodations “because of race, religion, color, national origin, or biological sex” and finds benefits to businesses and organizations from “consistent” statewide laws in the area.
      The bill rode to quick passage in part on the strength of the issue of bathroom privacy raised by the growing visibility of transgender individuals. The bill effectively requires most transgender individuals to use single-sex bathrooms for their “biological sex,” as shown on their birth certificate, instead of their gender identity. Legislators sought to obscure their animus somewhat by specifying that local boards of education have authority to provide single-user unisex facilities.
      LGBT rights organizations — the American Civil Liberties Union, Lambda Legal, and Equality North Carolina — filed a federal court suit challenging the constitutionality of the measure less than a week after enactment [March 28]. The lead plaintiff in Carca┼ło v. McCrory is a transgender male employee of the University of North Carolina whose therapist recommended he use men’s restrooms but would be required to women’s facilities under the law.
      The 45-page complaint notes the history that preceded the state law. The Charlotte city council passed the ordinance prohibiting anti-LGBT discrimination by a 7-4 vote on Feb. 22 after two hearings featuring testimony from LGBT citizens about their experiences with invidious discrimination. The state legislature passed its law nullifying the Charlotte ordinance, according to the complaint, after “openly and virulently attacking transgender people, who were falsely portrayed as dangerous and predatory to others.”
      The complaint includes no legal citations, but the Supreme Court precedents were sufficiently clear to the state’s attorney general, Democrat Roy Cooper, that he promptly declined to defend the law in court. McCrory, however, is doubling down in defense of the measure. After the suit was filed, he issued a “fact sheet” filled with misinformation about the law’s effects.
      McCrory denied that the law took away any existing legal protections against discrimination. As noted by fact checkers for the Raleigh television station WRAL, the state law appears to override not only the Charlotte ordinance but also narrower measures in Greensboro and Raleigh, the state capital. In his fact sheet, McCrory depicted the law as beneficial to North Carolina’s ability to attract businesses. The fact-checkers noted opposition to the bill from, among other private corporations, American Airlines, which uses the Charlotte airport as a hub.
      Back in the 1950s and ’60s, Atlanta sought to distinguish itself from the resistance to desegregation by describing itself as “the city too busy to hate.” Charlotte has the same aspirations that Atlanta had back then to become a truly national city instead of a big regional city. Among the council members voting for the ordinance, Democrat Al Austin harked back to Atlanta’s slogan. “Are we a city that panders to fear and hate to those who wish to perpetuate fear and injustice?” he asked, according to the account in The Charlotte Observer. “I say to you, ‘Not on my watch.’”
      Back in the 1960s, North Carolina had a reputation for progressive politics and policies. Today, under a Republican governor and GOP-controlled legislature, the state has turned its back on that tradition and found time to authorize anti-LGBT discrimination in state law. But federal courts may step in at least to correct this misstep.

Sunday, March 27, 2016

At Supreme Court, Tie Votes Leave Strike Zone Unclear

           UPDATE: The Supreme Court ended a major case for public employee unions with a 4-4 tie that upheld a lower court decision allowing the unions to require non-members to pay a so-called agency fee to cover the cost of representing them in collective bargaining.
      The decision in Friedrichs v. California Teachers Association [March 29] was the second case of the term to end in a 4-4 tie since Justice Scalia’s death left the court with eight instead of nine members. Conservatives had viewed the case as a good opportunity to use a free-speech argument to overturn a 40-year-old precedent allowing public employee unions to require some payments from objecting non-members.
      Arguments in the case indicated that the justices were split along conservative-liberal lines, with Scalia seen as a likely vote with the other conservatives. The tie vote ends the individual case, but sets no national precedent. The decision is one indication that the Court will go ahead and issue 4-4 rulings even in important cases instead of scheduling them for rearguments after the vacancy is filled.

* * *

      When Gary Hawkins and Chris Patterson applied for a loan to start a homebuilding company, the bank required their wives to sign as guarantors. The husbands’ company defaulted, and the banks responded by suing the wives along with the husbands for the full $2 million in loans.
      Valerie Hawkins and Janice Patterson responded by accusing the bank of violating the federal law against discrimination in credit on the basis of marital status. The case reached the Supreme Court after the federal appeals court in St. Louis ruled for the bank, and the case ended last week [March 22] in a 4-4 tie that upheld the ruling in the bank’s favor.
      The decision in Hawkins v. Community Bank of Raymore was the first of what could easily be a dozen decisions during the Supreme Court’s term to end in 4-4 ties with no definitive ruling on the legal issue posed. Justice Antonin Scalia’s death leaves the court with eight instead of nine justices, who are evenly divided between conservative and liberal blocs on many issues. A 4-4 vote affirms the lower court decision under review, but does not establish a national precedent.
      With Scalia’s death halfway through the current term, some 4-4 decisions were inevitable. But the Senate Republicans’ refusal to consider President Obama’s nomination of federal judge Merrick Garland to fill the vacancy creates the likelihood of more indecisive decisions during the court’s new term that opens in October. As progressive groups urge on Twitter, “#WeNeedNine.”
      In Hawkins, the tie vote upholds the decision by the Eighth U.S. Circuit Court of Appeals that struck down a Federal Reserve regulation defining a loan guarantor as an “applicant” under the federal Equal Credit Opportunity Act. The Cincinnati-based Sixth Circuit appeals court has upheld the Federal Reserve’s regulation. So spouses in the four Sixth Circuit states Kentucky, Michigan, Ohio, and Tennessee now have protections that are denied to spouses in the seven Eighth Circuit states that stretch from the Dakotas south to Arkansas.
      A tie vote seems a strong likelihood in a more significant case argued last week. In Zubik v. Burwell, argued on March 23, religious schools and charities are challenging the Obama administration’s effort to make sure their employees get no-cost access to contraceptives under their health insurance plans. The religious organizations — religious schools, religious charities, and the like — say they object to some forms of contraception covered under the Obamacare mandate.
      The administration crafted an accommodation. Under the plan, a religious nonprofit must notify its insurer or the government of its objection so that the insurer can provide the coverage on its own. But the religious groups say that accommodation does not go far enough. They say it still makes them complicit in providing coverage to which they object and it “hijacks” their health insurance plan.
      This case could be called “Son of Hobby Lobby,” the 2012 decision that allowed religiously motivated employers to get out from under the contraceptive mandate. In that case, Scalia provided the fifth vote for the conservative bloc to prevail over the liberal justices in dissent.
      Predictably, the eight remaining justices appeared to be in the same lineup in the arguments on Wednesday. Any thought that Chief Justice John G. Roberts Jr. or Justice Anthony M. Kennedy might switch sides appeared to go up into thin air when each incorporated the “hijack” phrase into questions for the government’s lawyer, Solicitor General Donald Verrilli Jr.
      In this case, the tie goes go the government, which won in four different federal circuits in the seven cases that the Court agreed to review. The government notched wins in four other circuits, but lost in the Eighth Circuit. Thus, a 4-4 vote in this case will again mean that women in the Eighth Circuit will lack a legal benefit enjoyed by women in other circuits — in this instance, representing half the country (24 states plus the District of Columbia).
      In the weeks after Scalia’s death, two justices, Samuel A. Alito Jr. and Stephen G. Breyer, remarked at previously scheduled programs that the Court would manage with eight justices for the time being. Alito even noted that the Court in the 19th century had had an even number of justices for periods of time. Apparently, Alito quipped, justices back then were more agreeable than they are today.
      Admittedly, only a fraction of Supreme Court decisions are by 5-4 votes, around one-fourth on average. So the eight-justice Court can reach definitive results in most cases. Still, the 5-4 cases are quite often the most significant. So 4-4 ties mean the Court is not fulfilling its role as effectively as the public has a right to expect.
      As chief justice, Roberts has a broader stake on the matter than any of the associate justices. As a sports fan, he must know that there are no ties in baseball. And, to adapt his confirmation hearing metaphor, he must know that an umpire needs to have a consistent strike zone: not a different zone for different teams, different leagues. Thus, it is understandable that some Court watchers think it is time for Roberts to tell the Senate that the Court functions best with a full complement of nine justices and that the Court is being hurt and will be hurt further by a protracted, politically motivated delay in filling the empty seat.