Symposium: In bad year for death-penalty abolitionists, Justice Stephen Breyer solidified position as court’s leading opponent of capital punishment

Symposium: In bad year for death-penalty abolitionists, Justice Stephen Breyer solidified position as court’s leading opponent of capital punishmentAustin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science and Associate Dean of the Faculty at Amherst College. The past year was, in many ways, a disappointing one for those seeking to end the death penalty in America. They lost at the ballot box and in the selection of a new […]

The post Symposium: In bad year for death-penalty abolitionists, Justice Stephen Breyer solidified position as court’s leading opponent of capital punishment appeared first on SCOTUSblog.

Symposium: In bad year for death-penalty abolitionists, Justice Stephen Breyer solidified position as court’s leading opponent of capital punishment

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science and Associate Dean of the Faculty at Amherst College.

The past year was, in many ways, a disappointing one for those seeking to end the death penalty in America. They lost at the ballot box and in the selection of a new Supreme Court justice, and they failed yet again to get the court to take up a wholesale challenge to capital punishment. Through it all, Justice Stephen Breyer persisted in making the case that the death penalty violates the Eighth Amendment and “the evolving standards of decency that mark the progress of a maturing society.” His efforts had no greater payoff during the 2016 term than they have had in the past, but they helped to memorialize the many miscarriages of justice associated with the death penalty’s continued use and lay the groundwork for a future court to end capital punishment.

He made those efforts during a time of a gradual withering of America’s death penalty. This withering is evidenced by the fact that fewer and fewer death sentences are being imposed in fewer and fewer places across the country. At the same time, similar trends are occurring with regard to actual executions. Moreover, while a majority of the American public continues to support the death penalty, the number of people favoring it is lower than it has been since the 1970s.

But, during the last year, these developments were counterbalanced on several fronts. The hope for continued restraint in the pursuit of federal death-penalty cases, and for the appointment of a Supreme Court justice sympathetic to the anti-death-penalty cause, was dashed by the election of President Donald Trump, an avid supporter of capital punishment, and by Trump’s appointment of Jeff Sessions as attorney general of the United States. So vehement is Sessions’ support for the death penalty that, during his tenure as Alabama’s attorney general, he “worked to execute insane, mentally ill and intellectually disabled people, among others, who were convicted in trials riddled with instances of prosecutorial misconduct, racial discrimination and grossly inadequate defense lawyering.”

In addition, voters in California, Oklahoma and Nebraska supported the death penalty in several different referenda.

And, earlier this year, Arkansas drew international attention when it unveiled a plan to execute eight death-row inmates in 11 days.

While all this was going on, the Supreme Court was in a holding pattern on capital punishment. It addressed some unusual problems in ways that only served to prop up a failing system. And it declined to hear more direct challenges to the constitutionality of the ultimate penalty.

In three of its death cases, the court found for defendants seeking relief from blatant miscarriages of justice. So egregious were those problems that, in one case, even reliably pro-death-penalty Chief Justice John Roberts sided with its critics. Writing, for a six-justice majority, he said that a defendant was denied effective assistance of counsel when his own lawyer presented an expert who testified that he was more likely to be dangerous in the future because he is black. Roberts put it simply when he noted that “[n]o competent defense attorney would introduce such evidence about his own client.”

One month after this decision, the Supreme Court struck down Texas’ standard for evaluating intellectual disability in death-penalty cases. Here again the particulars of the case were so striking that Justice Ruth Bader Ginsburg’s majority opinion labelled the Texas situation an “outlier.” She held that “[b]y design and in operation, … [it] create[s] an unacceptable risk that persons with intellectual disability will be executed.”

Last week, a closely divided court ruled that an Alabama man had been unconstitutionally denied the assistance of a mental-health expert in evaluating, preparing and presenting his defense. Justice Neil Gorsuch, in his first vote on the merits in a death-penalty case, did not disappoint those who pushed for his appointment. He joined a dissent written by Justice Samuel Alito, which argued that an indigent defendant whose mental health will be a significant factor at trial is not “entitled to the assistance of a psychiatric expert who is a member of the defense team instead of a neutral expert who is available to assist both the prosecution and the defense.”

Throughout the term, the court repeatedly refused to take up cases raising problems that go to the heart of the death penalty itself. In a series of dissents in those cases, Breyer continued the work started in his dissenting opinion in Glossip v. Gross, repeatedly pointing out systemic and crippling problems in the administration of capital punishment.

Echoing Justice Harry Blackmun’s famous announcement “I no longer shall tinker with the machinery of death,” Breyer said in Glossip that “rather than try to patch up the death penalty’s legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.” Given the “circumstances and the evidence of the death penalty’s application,” he urged the court to “reopen” that basic question. Breyer called attention to what he labelled “three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use.”

This term, the Supreme Court denied certiorari in a case that asked it to decide “(w)hether imposition of the death penalty constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.”

The petitioner in that case, Marcus Reed, argued:

Capital punishment is now constrained to a dwindling handful of locations, reserved not for the most culpable offenders, but for those unlucky few prosecuted under anachronistic circumstances. The declining numbers of death sentences and executions has not ensured that capital punishment is applied more carefully but rather enhanced the “not altogether satisfactory” application of the punishment.

Breyer filed a brief dissent in which he picked up a theme from Glossip. He noted that “[t]he “arbitrary role that geography plays in the imposition of the death penalty, along with the other serious problems I have previously described, has led me to conclude that the Court should consider the basic question of the death penalty’s constitutionality.”

In another case, Sireci v. Florida, the court refused to consider the Eighth Amendment claim of a man who has been on Florida’s death row for 40 years. Breyer dissented, noting that “delays of this kind have become more common.” He called execution after such an extended time on death row “especially cruel and unusual.”

Justice Breyer returned to this theme when he dissented yet again from a denial of certiorari, this time in the case of Rolando Ruiz, who was confined on death row for 22 years, 20 of them in solitary confinement. Ruiz claimed that his permanent solitary confinement on death row violated the Eighth Amendment, and Breyer agreed. Breyer noted the “terrible ‘human toll’ [that] is ‘wrought by extended terms of isolation.’” That toll is compounded, he claimed, by “a prisoner’s uncertainty before execution … ‘one of the most horrible feelings to which he can be subjected.’”

This term’s death-penalty opinions suggest that Breyer is intent on assuming the mantle of former Justices William Brennan and Harry Blackmun. Like them, he courageously and correctly took every opportunity to call the court’s, as well as the nation’s, attention to the day-to-day realities of our broken death-penalty system and to the ways those realities damage America’s commitments to due process, equal treatment and respect for the dignity of all of its citizens.

The post Symposium: In bad year for death-penalty abolitionists, Justice Stephen Breyer solidified position as court’s leading opponent of capital punishment appeared first on SCOTUSblog.

from http://www.scotusblog.com

Death penalty symposium: Evolving standards for “evolving standards”

Death penalty symposium: Evolving standards for “evolving standards”Dominic Draye is the solicitor general of Arizona, which filed a brief for 16 states in support of the respondents in Moore v. Texas. In 1952, the Supreme Court took up the case of a soldier who deserted his unit during World War II. As punishment, the soldier lost his citizenship. His challenge to that sanction […]

The post Death penalty symposium: Evolving standards for “evolving standards” appeared first on SCOTUSblog.

Death penalty symposium: Evolving standards for “evolving standards”

Dominic Draye is the solicitor general of Arizona, which filed a brief for 16 states in support of the respondents in Moore v. Texas.

In 1952, the Supreme Court took up the case of a soldier who deserted his unit during World War II. As punishment, the soldier lost his citizenship. His challenge to that sanction under the Eighth Amendment’s ban on cruel and unusual punishment launched the current chapter in Eighth Amendment jurisprudence: “The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”

As always, the wake is wider than the vessel. For decades, the Supreme Court and courts around the country have labored to identify the “evolving standards of decency” that classify one punishment as cruel and unusual while permitting another. This project is necessarily vexing, as the standards themselves are defined by their evolution – at least until the Supreme Court acknowledges a standard and thereby prevents any social reconsideration. Moreover, assuming that the amendment’s meaning should change over time, the Constitution does not identify reference points by which courts might gauge society’s standards of decency.

Although the Supreme Court’s decision this term in Moore v. Texas purported to explain how states should determine a person’s intellectual capacity, the real action was just beneath the surface, where the court changed its benchmark for measuring society’s standards. In Moore, the court looked nearly exclusively to the opinions of professional organizations like the American Psychological Association to determine what now transgresses the Eighth Amendment. This deference to professional groups completes a 15-year arc of slowly turning away from the states and their enacted legislation as the gold standard for gauging society’s views. Now the court’s standard for determining society’s standards appears to be the latest guidance for clinicians and medical professionals.

The road from Atkins

The Supreme Court first announced an Eighth Amendment bar to executing persons with diminished mental capacity in Atkins v. Virginia. There, the court described state laws as “the clearest and most reliable objective evidence of contemporary values.” Looking to this standard, the court counted 18 states that had abolished the death penalty for “mentally retarded” persons during the decade and a half following a controversial execution in Georgia in 1986. In addition, the court found evidence of a consensus in the infrequency with which states permitting such executions actually carried them out. The views of professional associations appeared only in a footnote, which they shared with the entreaties of religious leaders, the laws of the European Union, and public opinion polls.

Mental-health professionals ascended from the footnotes to the body of the opinion in Hall v. Florida, and their bearing on the court’s analysis increased correspondingly. Hall, decided 12 years after Atkins, challenged the method by which Florida used IQ tests to determine which convicted killers have an intellectual disability. The five-justice majority explained that enforcing a hard IQ cutoff was inconsistent with the holding in Atkins because mental-health professionals consider a person’s actual IQ to fall within a range around the test score. While relying heavily on mental-health expertise, the court nevertheless couched its analysis in terms of “better understanding … how the legislative policies of various States, and the holdings of state courts, implement the Atkins rule.” The court also returned to counting states, reasoning that 41 states would not deem someone with an IQ score of 71 “automatically eligible for the death penalty.”

But, as the Hall dissent pointed out, the tally here is less clean than in Atkins. The majority’s claim to 41 states rests not on an additive process as in Atkins, but on subtracting nine states that affirmatively shared Florida’s approach from the total of 50. This conclusion only makes sense if the states face a binary choice for how to interpret IQ scores, which is not the case. The dissent therefore parsed the states more finely: Nineteen do not have the death penalty and therefore cannot contribute to a national consensus on interpreting IQ tests for Atkins purposes; 10 do not require the standard-deviation method at issue in Hall; 12 consider that method in some manner; and nine have taken no position. Perhaps in response to this rebuke, the Hall majority ended its survey of states with the defensive note that “Atkins did not give the States unfettered discretion to define the full scope of the constitutional protection.” Thus, although Hall continued the work of counting states and attempted to tether the court’s regard for the views of the APA to the task of “better understanding” what the states have done, the reasoning suggests far less reliance on state law and far more on the opinion of experts. Justice Samuel Alito highlighted this shift in dissent, noting that “prior cases” looked to “the standards of American society as a whole,” whereas the Hall majority turned to “the evolving standards of professional societies.”

By this term’s decision in Moore, state legislatures receive only one mention: a stray observation that none of them has codified the factors for determining mental capacity on which the Texas Court of Criminal Appeals relied. The court did nothing to address a 16-state amicus brief arguing that the petitioner’s request was inconsistent with the consensus on display in state laws. Although the court in Moore offered assurances that states need not adhere to “the latest medical guide,” the absence of any alternative yardstick for assessing society’s standards of decency belies that guarantee. Unsurprisingly, the dissent seized on the court’s failure to consider “the state practices that were, three Terms ago [in Hall], ‘essential’ to the Eighth Amendment question.”

Pros and cons of technocracy

The question presented in Atkins – whether the Eighth Amendment prohibits execution of the intellectually disabled – is a legal issue. Its necessary corollary – who is intellectually disabled – is not purely legal. Because judges are capable of answering legal questions themselves but have little proficiency in identifying which individuals are of such limited mental capacity that they cannot tell right from wrong, an appeal to mental-health professionals for expert guidance is intuitive. Neither Texas nor the amici states in Moore suggested that scientific expertise is unimportant. To the contrary, they would be happy to see all the evidence the APA can muster presented to legislatures across the country. In that setting, lawmakers can weigh competing studies and consider the views of dissenting psychologists, whose opinions are omitted from the final pronouncement by their association.

The disagreement in Moore, therefore, is less about whether experts have a role than about where in the process they should play out that role. As the dissent pointed out, experts are far from univocal. Even on the specific question in Moore – whether “adaptive deficits” must be related to intellectual function – the two leading professional associations disagree. Deciding which opinion to follow is a task better suited to the legislative process than to the judiciary.

Finally, the pivot from tallying states to enshrining the APA’s view as the law of the land solves very little. Academics and practitioners are not themselves unanimous. Thus the court may simply be replacing a process of counting states with one of counting psychologists. Moreover, experts, no less than state legislators, have policy preferences, including non-scientific opinions on the desirability of the death penalty. One need not be a professional psychologist to understand that these preferences will influence a person’s opinion on where to draw the line between individuals who are eligible for a death sentence and those who are not. Above all, mental-health experts routinely reconsider earlier positions. To the extent the court cements their current thinking in precedent, it prevents the very evolution that it claims to serve.

On the other hand, if Hall and Moore simply require reference to current scholarship, then they might allow more reconsideration than Atkins, which takes state legislatures as its reference point. Legislatures, after all, are bound by the court’s decisions and cannot, even if they would like to, return to a formerly prevailing view. This consequence for state legislatures formed the backbone of Justice Clarence Thomas’s dissent in Graham v. Florida, in which he lamented that the effect of judicial decisions is to allow evolution in just “one direction.” But Supreme Court precedent is no bar to clinicians and scholars reconsidering the standard for mental deficiency. Researchers are free to advocate a return to the definition of intellectual disability in earlier editions of the APA’s Diagnostic and Statistical Manual. In this way, their ascent into the role of societal bellwether actually promises more flexibility than reliance on the law-bound states. Whether that flexibility will ultimately track the views of broader society is an open question.

The Supreme Court will surely have future opportunities to reconsider Moore and the trend to which it belongs. As soon as professional associations revise their thinking in a manner that would expand the boundaries of intellectual disability, death-row inmates who would benefit from the new guidelines will immediately raise Eighth Amendment claims. Any of those cases could afford the court an opportunity to return to using the states as the “clearest and most reliable” indicators of society’s standard of decency.

The post Death penalty symposium: Evolving standards for “evolving standards” appeared first on SCOTUSblog.

from http://www.scotusblog.com

Opinion analysis: In Texas capital case, divided court limits scope of “nested” ineffective-assistance claims

Opinion analysis: In Texas capital case, divided court limits scope of “nested” ineffective-assistance claimsIn one of the last decisions of its October 2016 term, a sharply divided Supreme Court yesterday ruled against a Texas prisoner facing a death sentence, declining to extend its 2012 ruling in Martinez v. Ryan. Instead, for a 5-4 majority, Justice Clarence Thomas concluded in Davila v. Davis that when a state prisoner fails […]

The post Opinion analysis: In Texas capital case, divided court limits scope of “nested” ineffective-assistance claims appeared first on SCOTUSblog.

Opinion analysis: In Texas capital case, divided court limits scope of “nested” ineffective-assistance claims

In one of the last decisions of its October 2016 term, a sharply divided Supreme Court yesterday ruled against a Texas prisoner facing a death sentence, declining to extend its 2012 ruling in Martinez v. Ryan. Instead, for a 5-4 majority, Justice Clarence Thomas concluded in Davila v. Davis that when a state prisoner fails in a state post-conviction proceeding to challenge the effectiveness of his direct-appeal lawyer, he may not raise that claim in a federal habeas petition – even if his failure was caused by ineffective assistance of his post-conviction counsel. Whereas Martinez (and its sequel, Trevino v. Thaler) had held that such “nested” ineffectiveness-of-counsel claims can be pursued in federal habeas petitions, the Supreme Court’s decision in Davila v. Davis limits Martinez and Trevino to circumstances in which the underlying ineffectiveness claim goes to the prisoner’s trial lawyer, not to any deficiencies by the counsel handling his direct appeal. And although the issue in Davila is narrow and technical, the case may come to serve as a broader flashpoint in the ongoing debate over the proper role and scope of collateral post-conviction review.

As the argument preview summarized, Erick Davila was convicted and sentenced to death in 2009 for killing a woman and her five-year-old granddaughter as part of a shooting spree in which he would later claim he was aiming at an individual he (apparently incorrectly) thought to be affiliated with a rival gang. At trial, he presented two defenses: that the witnesses had mistaken him for someone else, and that, even if he was the perpetrator, he lacked the specific intent to kill the victims. With regard to the latter defense, the judge gave the jury an erroneous instruction over the contemporaneous objection of Davila’s counsel. The instruction suggested, contrary to the relevant Texas law, that Davila could be convicted of capital murder even if he only intended to kill the intended target, and no one else. Unfortunately for Davila, neither his appellate lawyer nor his state post-conviction counsel sought to press that issue. And although Davila claimed that his appellate lawyer therefore provided ineffective assistance, the district court held that he had defaulted that claim by failing to raise it in his state collateral post-conviction review proceeding.

In his concise and direct opinion for the majority, Thomas began by reiterating the continuing force of the court’s 1991 ruling in Coleman v. Thompson, which held, among other things, that there is no right to counsel (or, by extension, to the effective assistance of counsel) in state post-conviction proceedings. Martinez and Trevino, Thomas explained, only recognized a “narrow,” “highly circumscribed” “equitable exception” to Coleman’s more general rule, one that should not be expanded “to new categories of procedurally defaulted claims” absent compelling reasons for doing so.

As Thomas explained, “The Court in Martinez made clear that it exercised its equitable discretion in view of the unique importance of protecting a defendant’s trial rights, particularly the right to effective assistance of trial counsel.” In contrast, “Claims of ineffective assistance of appellate counsel … do not pose the same risk that a trial error—of any kind—will escape review altogether, at least in a way that could be remedied by petitioner’s proposed rule.” After all, if, as in Davila, the claim is properly raised at trial, then at least one court (the trial court) will have had the chance to pass upon it. And if the claim is not properly raised at trial, then in most cases, “the prisoner could not make out a substantial claim of ineffective assistance of appellate counsel,” because “[d]eclining to raise a claim on appeal … is not deficient performance unless that claim was plainly stronger than those actually presented to the appellate court.”

Finally, Thomas concluded, expanding Martinez and Trevino to encompass ineffective assistance of appellate counsel “would not only impose significant costs on the federal courts, but would also aggravate the harm to federalism that federal habeas review necessarily causes,” and for benefits that would be “small.” After all, even though “permitting a state prisoner to bring a meritorious constitutional claim that could not otherwise be heard is beneficial to that prisoner,” there likely would not be that many cases in which a prisoner, through ineffective assistance of his appellate counsel, was deprived of the ability to bring a meritorious challenge that had already been considered – and rejected – by the trial court.

Writing for himself and Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, Justice Stephen Breyer (who had penned the majority opinion in Trevino) wrote an especially pointed dissent. After describing the“[f]our features of the claim of ineffective assistance of trial counsel [that] led the Martinez Court to its conclusion,” Breyer walked through why he believed each also applied to claims like Davila’s. “Suppose that, during the pendency of the appeal, appellate counsel learns of a Brady violation, juror misconduct, judicial bias, or some similar violation whose basis was not known during the trial,” Breyer posited. “And suppose appellate counsel fails to pursue the claim in the manner prescribed by state law. Without the exception petitioner here seeks, no court will hear either the appellate-ineffective-assistance claim or the underlying Brady, misconduct, or bias claim.”

As for the costs of extending Martinez to ineffective assistance of appellate counsel, Breyer criticized the majority for failing to substantiate its claims. As he noted, “Texas’ estimate of added workload comes down to an increase of ‘dozens’ of cases out of 7,500 cases in total [in the Ninth Circuit, which has applied Martinez since late 2013]. That figure represents an increase, but not an increase significant enough to warrant depriving a prisoner of any forum to adjudicate a substantial claim that he was deprived of his constitutional right to effective assistance of appellate counsel.”

Finally, Breyer pointed to Justice Antonin Scalia’s dissent in Martinez, which had observed that there “is not a dime’s worth of difference in principle between [ineffective-assistance-of-trial-counsel] cases and many other cases in which initial state habeas will be the first opportunity for a particular claim to be raised,” including “claims asserting ineffective assistance of appellate counsel.” “I agree,” Breyer concluded.

*                   *                   *

Compared to some of the major habeas decisions from October Term 2015, it’s hard to see Davila as anything other than an important, but narrow, clarification of the scope of Martinez and Trevino. At the same time, with the focus of courts and commentators increasingly shifting to the nature and scope of state post-conviction proceedings, how one views the relationship between Coleman and Martinez has consequences far beyond the specific question presented – and decided – in Davila. And with Justice Anthony Kennedy (and Justice Neil Gorsuch) joining the remaining Trevino dissenters to cabin the scope of Martinez and Trevino, the scale appears to have tipped, at least for the moment, back in Coleman’s direction.

The post Opinion analysis: In Texas capital case, divided court limits scope of “nested” ineffective-assistance claims appeared first on SCOTUSblog.

from http://www.scotusblog.com

Today’s orders

Today’s ordersYesterday the justices of the Supreme Court released several decisions in cases that were argued on the merits and announced that they would add several new cases – including, most notably, the litigation over the president’s “travel ban” – to their docket for next term. The justices did not take the bench today, but they […]

The post Today’s orders appeared first on SCOTUSblog.

Today’s orders

Yesterday the justices of the Supreme Court released several decisions in cases that were argued on the merits and announced that they would add several new cases – including, most notably, the litigation over the president’s “travel ban” – to their docket for next term. The justices did not take the bench today, but they did release a new set of orders from yesterday’s conference. This morning’s order list sent four cases back to the state courts for them to take another look in light of yesterday’s decision in Trinity Lutheran Church v. Comer, in which the justices ruled that Missouri’s exclusion of a church from a state program intended to provide funding for recycled playground surfaces violated the Constitution. The justices also added six new cases, for a total of five hours of argument, to their docket for the next term.

Two of today’s new grants came in cases in which the court had asked the federal government to weigh in and the acting solicitor general (on behalf of the federal government) had recommended that the court take up the case. Rubin v. Islamic Republic of Iran arises out of efforts to enforce a $71.5 million judgment against Iran for its role in a 1997 suicide bombing in Jerusalem; the plaintiffs want to satisfy that judgment by seizing ancient Persian artifacts that have been on loan to the University of Chicago since the 1930s. A federal law, the Foreign Sovereign Immunities Act, generally protects property in the United States that is owned by foreign governments from being seized, but the FISA carves out some limited exceptions – including when the property at issue is used for commercial activity and when the plaintiff has obtained a judgment against a “terrorist party.” Today the justices agreed to decide whether a provision of the FSIA creates a “freestanding” immunity exception (as the plaintiffs in this case argue) or whether the other requirements for seizing a foreign state’s property still apply.

And in Cyan Inc. v. Beaver County Employees Retirement Fund, the justices will consider whether a 1998 federal law, the Securities Litigation Uniform Standards Act, prohibits a state court from exercising jurisdiction over lawsuits that only allege violations of the Securities Act of 1933. In this case, shareholders who bought stock in Cyan after its initial public offering but then experienced “weaker-than-expected” results filed a class action under the 1933 act, which creates causes of action for false statements made in connection with the public offering of stocks. In a somewhat unusual twist, the federal government agreed with a California appeals court that SLUSA does not strip state courts of jurisdiction over this lawsuit. But the government nonetheless urged the justices to grant review, describing the case as presenting a “difficult interpretive issue that has generated confusion in lower courts.”

The justices added two more cases to their docket in which the acting solicitor general had recommended that review be denied: Christie v. NCAA and National Thoroughbred Horsemen’s Association v. NCAA, which were consolidated for one hour of oral argument. In these cases, the lower courts ruled that a 2014 law passed by the New Jersey legislature allowing sports gambling at its casinos and race tracks was pre-empted by a federal law, the Professional and Amateur Sports Protection Act, that prohibits states from authorizing sports-gambling schemes. The Supreme Court will now weigh in on whether Congress can bar the states from authorizing sports gambling, or whether the PASPA instead violates the Tenth Amendment, which provides that powers which are not specifically given to the federal government or taken from the states are reserved for the states.

In PEM Entities v. Levin, the justices agreed to decide whether bankruptcy courts should apply a federal rule of decision, involving a multi-factor test, or state law when deciding whether to recharacterize a debt claim as a capital contribution in bankruptcy. And in Marinello v. United States, the justices will consider whether a conviction for trying to impede or obstruct the administration of the tax laws requires the government to show that the defendant knew of a pending IRS action when he acted.

Finally, the justices sent several cases involving the use of public funds in religious schools back to the state courts for them to reconsider in light of Trinity Lutheran. A trio of cases – Doyle v. Taxpayers for Public Education, Douglas County School District v. Taxpayers for Public Education and Colorado State Board of Education v. Taxpayers for Public Education – had asked the Supreme Court to review a decision by the Supreme Court of Colorado. The Colorado court had ruled that a public program to provide scholarships for use at private schools, including religious ones, violated the state constitution, which contains a provision that bars the state from spending public funds “in aid of any church or sectarian society, or for any sectarian purpose.” And in New Mexico Association of Nonpublic Schools v. Moses, the justices had been asked to weigh in on the New Mexico Supreme Court’s reliance on a similar state constitutional provision to uphold the exclusion of religious and private schools from a secular textbook-lending program.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in Cyan. However, I am not affiliated with the firm.]

The post Today’s orders appeared first on SCOTUSblog.

from http://www.scotusblog.com

Symposium: The justices reach broad agreement, but on a narrow question

Symposium: The justices reach broad agreement, but on a narrow questionFred Yarger is the solicitor general of Colorado. He filed an amicus brief for the state in support of the church in Trinity Lutheran v. Comer. Although it represents a significant victory for religious liberty, Trinity Lutheran Church of Columbia, Inc. v. Comer does not appear to alter fundamentally how the First Amendment will be […]

The post Symposium: The justices reach broad agreement, but on a narrow question appeared first on SCOTUSblog.

Symposium: The justices reach broad agreement, but on a narrow question

Fred Yarger is the solicitor general of Colorado. He filed an amicus brief for the state in support of the church in Trinity Lutheran v. Comer.

Although it represents a significant victory for religious liberty, Trinity Lutheran Church of Columbia, Inc. v. Comer does not appear to alter fundamentally how the First Amendment will be understood and applied in cases involving claims of religious freedom. Instead, it reflects broad consensus from the Supreme Court, but only on the answer to a narrow question: Can an organization be excluded from a generally available public benefit program solely because of its religious character? At oral argument, that question was put in plainer language. Justice Stephen Breyer, for example, asked it this way: “does the Constitution of the United States permit a state or a city to say, we give everybody in this city police protection, but not churches?”

Framed in those terms, Trinity Lutheran was an easy case for seven members of the court. It has long been true that the government cannot single out religious people or groups for unfavorable treatment. The majority simply applied that longstanding rule to the facts at hand. The result is that Missouri cannot exclude churches from a program that uses public funds to make playground surfaces safer for school children. As Chief Justice John Roberts wrote in his majority opinion:

The Missouri Department of Natural Resources has not subjected anyone to chains or torture on account of religion. And the result of the State’s policy is nothing so dramatic as the denial of political office. The consequence is, in all likelihood, a few extra scraped knees. But the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.

Certainly, the opinion was noteworthy because it applied this rationale to circumstances in which a government would be required to make payments directly to a church, rather than through an intermediary such as an individual grant recipient. But several members of the court emphasized just how narrow they understood the Trinity Lutheran decision to be. In a footnote, three justices explained that the case involves only “express discrimination based on religious identity” and only “with respect to playground resurfacing.” In his concurring opinion, Breyer cautioned that “public benefits come in many shapes and sizes”; he declined to say whether “other kinds of public benefits” may be subject to the anti-discrimination principle. We can assume that benefits programs similar to Missouri’s – those that carry with them no apparent hint of religious endorsement when applied to churches – will be subject to the same anti-discrimination rule. But the fact that four justices took such pains to narrow the scope of the decision hints that deeper disagreements may lurk in the background.

For example, what is to be done about the provision of the Missouri constitution that led to this dispute? That provision is a so-called “Blaine” amendment, similar to those in dozens of other states, which prohibits the state from giving any “aid” to a religious institution. A plurality of the court, in the 2000 decision Mitchell v. Helms, said that Blaine amendments were enacted out of “hostility to the Catholic Church” and should be overturned. In its briefing, Trinity Lutheran gave the court the opportunity to address the fate of Blaine amendments. It argued that the Missouri constitutional provision that led to the denial of its playground-resurfacing grant application has a historical connection to “religious bigotry” that “carries over to the present,” and it thus cannot be used to justify exclusion of religious entities from grant programs. Several amici made similar points. Had it seen fit, then, the court could have said that a government’s reliance on Blaine amendments is categorically impermissible.

The court did not go nearly that far, however. Indeed, neither the majority opinion nor any of the three concurring opinions even mentioned the term “Blaine amendment,” although the subject came up several times during argument. The majority merely held that, whatever the basis for religious discrimination, it cannot be justified by a “policy preference for skating as far as possible from religious establishment concerns.” This suggests that Blaine amendments can remain on the books, at least for the time being. Trinity Lutheran held only that governments cannot rely on Blaine amendments alone to justify exclusion of religious entities from public benefits programs. They must cite some other, more substantial state interest. That is nothing new, and the court’s decision not to address the issue assures that the fate of Blaine amendments will continue to be litigated in the lower courts.

The potential for another simmering disagreement revealed itself in the concurring opinion of Justice Neil Gorsuch, joined by Justice Clarence Thomas. The majority focused its analysis on discrimination based on religious identity, deciding only that the First Amendment prohibits identity-based discrimination in public benefits programs. That, of course, suggests that discrimination based on religious conduct – and, specifically, conduct that a public grant program might facilitate – could lead to a different outcome. Gorsuch and Thomas were dubious of that distinction. They “harbor[ed] doubts about the stability of such a line”:

Does a religious man say grace before dinner? Or does a man begin his meal in a religious manner? Is it a religious group that built the playground? Or did a group build the playground so it might be used to advance a religious mission?

Justices Gorsuch and Thomas do not believe the distinction should matter. In their view, “It is free exercise either way.”

Some court watchers predicted – or perhaps hoped – that the Trinity Lutheran majority would adopt this broader view. Doing so may well have had a more wide-ranging effect on First Amendment jurisprudence. For example, some amici expressed concern about state and local efforts to promote school choice through scholarships that may be redeemed at religious schools. Those efforts have led to near-constant litigation nationwide, much of which has focused on the conduct of the school that receives public money.

For now, Trinity Lutheran reaffirmed a basic constitutional principle: Governments cannot single out people or groups just because they are religious. Seven justices can agree on that. Whether they can agree that the principle extends to other contexts – some perhaps more controversial than a scrap-tire program – is anything but clear.

The post Symposium: The justices reach broad agreement, but on a narrow question appeared first on SCOTUSblog.

from http://www.scotusblog.com

Symposium: The Constitution provides a level playing field for people of faith

Symposium: The Constitution provides a level playing field for people of faithHillary Byrnes is Assistant General Counsel for the United States Conference of Catholic Bishops. She filed an amicus brief for the conference and other organizations in support of the church in Trinity Lutheran v. Comer. Five years ago, Trinity Lutheran Church applied for a grant from Missouri’s Scrap Tire Grant Program so that it could […]

The post Symposium: The Constitution provides a level playing field for people of faith appeared first on SCOTUSblog.

Symposium: The Constitution provides a level playing field for people of faith

Hillary Byrnes is Assistant General Counsel for the United States Conference of Catholic Bishops. She filed an amicus brief for the conference and other organizations in support of the church in Trinity Lutheran v. Comer.

Five years ago, Trinity Lutheran Church applied for a grant from Missouri’s Scrap Tire Grant Program so that it could resurface the church’s preschool playground with rubber material made from recycled tires, which is softer than the preschool’s current pea gravel playground surface. Trinity Lutheran sought the grant in order to provide a safer surface on which the church’s preschoolers – and any other children in the community, given the preschool’s after-hours “open gate” policy – could play.

Missouri’s Department of Natural Resources runs the grant program, which provides grants to nonprofit organizations like child care centers and schools, in order to make use of old scrap tires as well as improve children’s safety. The program is funded through a fee paid by anyone who buys new tires. Although Trinity Lutheran’s application to participate in the program easily scored high enough to receive a grant from the program, and qualified for it in all other ways, the department denied Trinity Lutheran a grant simply because its preschool is run by a church.

Yesterday, the Supreme Court correctly found that Missouri’s exclusion of Trinity Lutheran from the grant process constituted unconstitutional discrimination on the basis of religion. Chief Justice John Roberts, writing for the majority, stated that “[t]he Department’s policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character. … [S]uch a policy imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny.” Roberts went on to hold that “[t]he exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution … and cannot stand.”

For people of faith, the Supreme Court’s decision marks a critical victory in trying to attain a level playing field when it comes to generally available public benefits. A 2016 study found that religion in the United States contributes a combined $1.2 trillion to the U.S. economy and society. Faith-based organizations have excellent track records in serving those in need, often at a much lower cost than the government.

Religious groups of all denominations and faiths often partner with government agencies in order to serve “the least of these,” given their faith-inspired missions, and governments often desire to work with faith-based groups to do the work that the government does not have the capacity or the local, trusted connections in the community to do. For example, local governments have partnered with Catholic Charities agencies to run homeless shelters and provide other services to people in need, especially when local municipalities have failed to run such programs successfully.

The Trinity Lutheran decision has short-term and longer-term effects for the faith-based community and religiously inspired organizations. First, and most immediately, it shows that faith-based institutions cannot be excluded from public programs solely because they are religious or are affiliated with a church in some way. This is important because some advocates before the court sought to exclude faith-based organizations from participating in publicly available government programs.

Roberts held that the “express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the Church—solely because it is a church—to compete with secular organizations for a grant.”

Justice Samuel Alito had noted in oral argument that prohibiting religious organizations from participating in grant programs would make, for instance, houses of worship like synagogues or mosques ineligible to receive security grants from the Department of Homeland Security despite serious threats to their existence.

The court found in yesterday’s opinion that Missouri’s overly broad interpretation of Article 1, Section 7, of its state constitution discriminates against religious organizations. And Missouri’s “policy preference for skating as far as possible from religious establishment concerns” did not justify the “clear infringement on free exercise before [the Court].”

If the Supreme Court had failed to recognize and reject this straightforward discrimination based on religious status, the impact would have been acutely felt by faith-based organizations and the people they serve. For instance, our amicus brief points out that many faith-based hospitals rely on state funding as providers of last resort for underinsured and medically needy patients. Given the rising costs of health care, it is not surprising that nonprofit hospitals, including hospitals founded by religious orders, accept patients who have Medicare, Medicaid or other government-sponsored insurance plans.

Additionally, states implementing the federal Temporary Assistance to Needy Families program contract with faith-based as well as non-faith-based organizations to deliver housing, rehabilitation and food assistance to the underprivileged. Yesterday’s Supreme Court decision protects faith-based helpers – whether in healthcare, housing or other human services – from harm born of extreme separationist scruples and thus allows them to continue to serve the neediest among us.

In the longer term, the court’s decision could give a boost to advocates of school choice in their efforts to provide multiple options for parents to select among when educating their children. This is because the decision bars unduly broad interpretations of Blaine Amendments. Such amendments are named after James G. Blaine, a former Speaker of the House of Representatives who in 1875 promoted an amendment to the federal Constitution that would have, in part, banned public funds from going to schools “under the control of any religious sect.”

Blaine’s attempt at a federal Constitutional amendment failed, but almost 40 states have similar provisions in their state constitutions. Such provisions were passed predominantly in the latter half of the 19th century, and sprang from the nativist, anti-Catholic sentiment that prevailed at that time in the United States.

Blaine Amendments have stymied efforts in many states to create or expand voucher and scholarship programs that would allow parents to make the best choice for their children’s education, even though the court decided in Zelman v. Simmons-Harris in 2002 that an Ohio voucher program passed muster under the federal establishment clause. Yesterday’s decision makes clear that Blaine Amendments cannot be interpreted in a way that discriminates against religious institutions. Although Blaine Amendments are still on the books in dozens of states, their days of being used as a blatant tool of discrimination against faith-based schools appear to be numbered.

Justice Sonia Sotomayor’s dissent noted the potential effects of the decision on Blaine Amendments, stating that “[t]he constitutional provisions of thirty-nine States [are] all but invalidated today.” Although Trinity Lutheran brought an as-applied challenge to Missouri’s Blaine Amendment rather than a facial challenge, the court’s decision indicates that Blaine Amendments should not be construed as broadly as Missouri sought to construe its own.

Unfortunately, Sotomayor’s dissent, which goes into some detail regarding the history of state Blaine Amendments (although it does not use the word “Blaine” or discuss the federal attempt at a Constitutional amendment), fails to take into account the animus that played a major role in the passage of Blaine Amendments. Several justices in previous cases, such as Mitchell v. Helms and Zelman, have acknowledged and condemned the religious bigotry that gave rise to these state laws.

As partnerships between faith-based groups and federal, state and local governments to assist the most vulnerable among us grow to meet increasing needs in our society, people of faith need to have the freedom to serve the common good without fear of being disqualified from such service simply because they are religious. All qualified organizations that currently exist are needed to address the challenges our country faces in combating poverty, providing life-affirming health care and educating the young. In a pluralistic society, the beneficiaries of such services have the freedom to choose where they obtain the services, and government entities should not themselves discriminate between religious and non-religious service providers.

Yesterday’s decision by the court enables the work of faith-based organizations to continue, and perhaps even expand. The playing field has finally been leveled.

The post Symposium: The Constitution provides a level playing field for people of faith appeared first on SCOTUSblog.

from http://www.scotusblog.com

Symposium: The crumbling wall separating church and state

Symposium: The crumbling wall separating church and stateErwin Chemerinsky is Dean and Raymond Pryke Professor of First Amendment Law at University of California, Irvine School of Law. As Justice Sonia Sotomayor powerfully observed in her dissent, the Supreme Court’s decision in Trinity Lutheran Church of Columbia, Inc. v. Pauley is unprecedented in American history: Never before had the Supreme Court held that […]

The post Symposium: The crumbling wall separating church and state appeared first on SCOTUSblog.

Symposium: The crumbling wall separating church and state

Erwin Chemerinsky is Dean and Raymond Pryke Professor of First Amendment Law at University of California, Irvine School of Law.

As Justice Sonia Sotomayor powerfully observed in her dissent, the Supreme Court’s decision in Trinity Lutheran Church of Columbia, Inc. v. Pauley is unprecedented in American history: Never before had the Supreme Court held that the government is required to provide assistance to religious institutions. Despite a footnote that attempts to limit the scope of this holding, the decision is going to engender a great deal of litigation as religious institutions now will claim a constitutional right to a wide array of benefits provided by the government to non-religious institutions. The noble and essential idea of a wall separating church and state is left in disarray, if not shambles.

That notion was not invented by 21st-century liberal law professors. Rather, of course, it came from Thomas Jefferson in a January 1, 1802, letter addressed to the Danbury Baptist Association and published in a Massachusetts newspaper, where Jefferson said: “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.” The phase actually can be traced back to Roger Williams, the founder of the first Baptist church in America, who wrote in 1644 of the need for “a hedge or wall of separation between the garden of the church and the wilderness of the world.”

In 1947, when the Supreme Court in Everson v. Board of Education held that the establishment clause applies to state and local governments, all nine justices accepted this metaphor of a wall separating church and state as reflecting the commitment of the First Amendment. They also very much accepted the reasoning of James Madison, who said that it was unconscionable to tax some to support the religions of others.

The First Amendment thus long has been understood to mean that, at times, the government must treat religion differently from non-religious activities. For over a half century, the court has held that certain speech, such as prayer, is forbidden in public schools, notwithstanding the constitutional protection for expression. For at least that long, the court has held that some forms of government aid to religious schools are constitutionally prohibited. This is not about hostility to religion. As Sotomayor rightly said in her dissent in Trinity Lutheran, “[a] State’s decision not to fund houses of worship does not disfavor religion; rather, it represents a valid choice to remain secular in the face of serious establishment and free exercise concerns.”

Most Supreme Court cases about aid to parochial schools have focused on whether the government violates the establishment clause when it chooses to provide a particular type of assistance. Only once before had the court considered the possibility that the Constitution compels government aid to religious institutions, and there the court emphatically rejected such a requirement. In Locke v. Davey, the court in 2004 considered a Washington state program that provided college scholarships to students from that state. Joshua Davey wanted to use his Promise scholarship to attend a seminary to be ordained as a minister, but the state refused to allow this. Davey, like Trinity Lutheran, sued, claiming that the state’s refusal violated his right to free exercise of religion and denied him equal protection. The court, in a 7-2 decision, in an opinion by Chief Justice William Rehnquist, rejected Davey’s claim and held that it did not violate the Constitution for the government to insist that its funds be used at secular institutions. Rehnquist spoke powerfully of a state’s interest in not having its funds used for religious purposes.

But in Trinity Lutheran, the court’s majority held that the denial of aid to parochial schools – in this instance, material for the surface of playgrounds – violated the church’s free-exercise rights. Chief Justice John Roberts’ majority opinion explicitly said that Missouri’s choice to deny this aid to religious schools had to meet strict scrutiny under the free exercise clause. The court found that Missouri’s justifications for the denial did not survive strict scrutiny, and Roberts concluded his opinion with the powerful statement: “But the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”

The court distinguished Locke v. Davey on two grounds. First, the court said: “Davey was not denied a scholarship because of who he was; he was denied a scholarship because of what he proposed to do—use the funds to prepare for the ministry. Here there is no question that Trinity Lutheran was denied a grant simply because of what it is—a church.” Second, the court said that Locke v. Davey involved aid for training a minister, whereas this case concerns assistance for playgrounds.

Both of these distinctions are very troubling. As to the former, any time the government denies aid to parochial schools it is because of what they are: religious institutions. This would seem to make any denial of aid to religious schools unconstitutional when assistance is provided to public schools. Or for that matter, it would make it unconstitutional to deny religious institutions any aid that is provided to secular institutions. For years, the government has refused to provide faith-based institutions the assistance offered to secular institutions, whether for preschools or drug rehabilitation programs or other social services. Religious institutions could receive the aid, but they needed to create a secular arm to do so. The charitable-choice movement has sought to allow faith-based institutions – churches, synagogues, mosques – to receive government assistance directly. The language in Roberts’ opinion suggests that charitable choice may be a constitutional requirement. After all, the denial of aid always is because of what the institutions are: churches, synagogues, mosques.

Also, the distinction between what an institution is and what it does is inherently arbitrary. Religious institutions are different precisely because of what they do. Conversely, Joshua Davey was denied use of his scholarship because of what he was: A Christian who wanted to be ordained as a minister.

The court’s other distinction based on how the aid is used is equally troubling. As the court often has observed, dollars are fungible. Aid provided for playgrounds frees up money for the parochial school to use for other purposes, including religious indoctrination. In 2002, in Zelman v. Simmons-Harris, the court said that it was constitutionally permissible for the government to allow vouchers to be used in parochial schools. The court’s decision in Trinity Lutheran suggests that the government not only can, but must allow vouchers to be used in parochial schools when they can be used in secular schools.

Also, with this distinction, the court invites endless line-drawing as to which types of aid are like Trinity Lutheran and which are like Locke v. Davey. Roberts’ only attempt to address this or to limit the reach of the court’s holding is found in footnote 3, where he writes: “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.” Only three other justices (Anthony Kennedy, Samuel Alito and Elena Kagan) joined this footnote. Justices Clarence Thomas and Neil Gorsuch wrote separately to say that they did not, and that they wanted to overrule Locke v. Davey.

The court’s decision is thus going to lead to a great deal of litigation. Any time the government provides any aid to secular private institutions, religious ones will now sue and say that the denial violates their free-exercise rights. That is the consequence of the court’s saying that the government must meet strict scrutiny in order to justify the denial of assistance to a religious institution.

Obviously, it is unclear where this line will be drawn. At the very least, the government must be able to deny aid when providing it would violate the establishment clause. For example, in 2000, in Mitchell v. Helms, a majority of the justices agreed that the government could not provide assistance that is actually used for religious instruction even if it is a type of aid provided to secular schools. But this limit is uncertain, especially because the court’s conservative majority has a very narrow view of what violates the establishment clause.

The actual holding of the case, that the state of Missouri has to provide aid to religious schools for the resurfacing of playgrounds, is fairly inconsequential. In fact, Missouri already had changed its policy to do this. It is the larger principle that is so important. Soon before she left the court, Justice Sandra Day O’Connor spoke eloquently of the need for the separation of church and state when she wrote: “Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?” Why indeed? But that is exactly what the court did in Trinity Lutheran in taking a significant step towards dismantling the wall that separates church and state.

The post Symposium: The crumbling wall separating church and state appeared first on SCOTUSblog.

from http://www.scotusblog.com

Symposium: Trinity Lutheran and Zelman – Saved by footnote 3 or a dream come true for voucher advocates?

Symposium: Trinity Lutheran and Zelman – Saved by footnote 3 or a dream come true for voucher advocates?Frank S. Ravitch is Professor of Law and Walter H. Stowers Chair in Law & Religion at Michigan State University College of Law. On its face, Trinity Lutheran Church v. Comer does not appear to have anything to do with school vouchers. After all, the primary issue in the case is whether a state can […]

The post Symposium: Trinity Lutheran and Zelman – Saved by footnote 3 or a dream come true for voucher advocates? appeared first on SCOTUSblog.

Symposium: Trinity Lutheran and Zelman – Saved by footnote 3 or a dream come true for voucher advocates?

Frank S. Ravitch is Professor of Law and Walter H. Stowers Chair in Law & Religion at Michigan State University College of Law.

On its face, Trinity Lutheran Church v. Comer does not appear to have anything to do with school vouchers. After all, the primary issue in the case is whether a state can deny, pursuant to its state constitution, a grant to a church school under a program that awards funds to qualifying entities that use recycled material to resurface playgrounds. Yet, at its core, the Trinity Lutheran decision is about requiring states to include religious entities in public benefit programs generally open to other entities. Despite a suggestion to the contrary in the dissenting opinion, Trinity Lutheran may very well open the door to requiring state and local governments to include religious entities in voucher programs.

The Trinity Lutheran decision explains that:

Trinity Lutheran is not claiming any entitlement to a subsidy. It instead asserts a right to participate in a government benefit program without having to disavow its religious character. … The express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the Church—solely because it is a church—to compete with secular organizations for a grant.

In other words, the holding in Trinity Lutheran reflects the notion that once the government opens up a “public benefit,” it cannot deny that benefit to a religious entity based on that entities’ religious nature. Moreover, a state cannot rely on its own state constitution – or on any other state interest – to deny religious entities access to a public benefit, because according to the court any such denial violates the free exercise clause of the U.S. Constitution. If all “public benefits” that might qualify for this protection were as innocuous as playground resurfacing, Trinity Lutheran would seem an eminently reasonable decision. After all, denying access to funding for a primarily secular benefit simply because of the religious status of the entity seeking funding would smack of discrimination against religious entities and would seem an obvious violation of the free exercise clause. Yet, where is the line to be drawn between public benefits that qualify for such protection and those that do not?

The answer to this question is of colossal importance because it raises the specter of an earlier Supreme Court decision, Zelman v. Simmons-Harris. That decision held that a school-voucher program did not violate the establishment clause even when 96.4 percent of voucher recipients under that program went to religious schools that were free to proselytize. I have written elsewhere about the many problems with the Zelman opinion, from its mischaracterization of precedent to its use of an illusory concept of formal neutrality.

Most importantly, after Zelman, parents living in states or school districts that provide vouchers for private school attendance, but who do not want their children to be proselytized, may have few options. In many parts of the country most private schools, especially those that can afford to take students under voucher programs, are religious and often highly subsidized by their parent churches. The amount included in voucher subsidies often precludes smaller religious schools and nonreligious schools from participating.

In Zelman, the court upheld the program despite the fact that more than 96 percent of voucher students attended religious schools of only one or two denominations, ironically because that attendance was deemed to be based on “true private choice.” Meanwhile, parents who had religious objections to sending their kids to these religious schools could do little, as funds were sucked out of their children’s already failing schools, leaving their children further behind. Their only hope would be to win a lottery for spots at a magnet school (assuming their child qualified) or for one of the few decent charter schools available. The court’s attempt to whitewash the numbers by including these public options was a great illusion, but in the end many parents were stuck with the choice of sending their children to failing public schools that would now be losing more funds and students or sending their children to religious schools of different faiths that were free to proselytize directly or by long-term exposure, in some cases risking the children’s eternal souls from the parents’ faith perspective or increasing the odds that the children will deny their faith (or lack of faith).

Still, a question left open in Zelman was whether government must fund religious entities when it opens up a generally available funding program. Until Trinity Lutheran the answer was unclear. It now seems that Trinity Lutheran may be used to expand the rule in Zelman from a “may” to a “must,” so that state and local governments will now have to include religious schools in voucher programs, or other programs, for fear of violating the free exercise clause.

There are two possible bulwarks against this result in Trinity Lutheran, neither of which gives me much confidence that the opinion will be limited to exclude voucher programs from its reach. First, is footnote 3 in the “majority” opinion.

Footnote 3 reads:

This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.

Footnote 3 was the only part of the opinion not joined by Justices Neil Gorsuch and Clarence Thomas, and therefore it only commanded a plurality of justices. It does seem, however, that Justice Stephen Breyer, who concurred only in the judgment, and Justices Sonia Sotomayor and Ruth Bader Ginsburg, would agree with the potential limiting principle in footnote 3.

On its face, footnote 3, combined with some other statements in the majority opinion, seems to limit the ruling to programs that have no direct religious content. If that were the case, there is at least a chance that Trinity Lutheran could not be used to force state and local governments to include religious schools in every program, including those that may lead to government funds being used to send students to schools that may proselytize them, even if through the supposed private choice of parents. Yet, how much footnote 3 limits the broader holding in Trinity Lutheran is unclear, especially given some of the strong language used in the majority opinion suggesting that excluding religious entities from “public benefit” programs based on the fact that they are religious entities is inherently discriminatory.

The other possible bulwark arises from the way in which Justice Sotomayor’s dissenting opinion characterizes the majority opinion. She suggests that the majority opinion applies only to direct-aid cases and therefore would not apply to cases involving indirect aid programs such as the one in Zelman. In fact, in footnote 2 of the dissent, she makes this explicit by mentioning Zelman itself.

Perhaps I am missing something – and I hope I am – because I am writing this the day the Trinity Lutheran opinion was handed down, but having read the opinion several times now, I do not see the direct-aid limitation as an inherent component of the decision. The decision appears to apply to “public benefit” programs regardless of whether they are direct or indirect aid programs. It doesn’t seem to matter whether the church school argues it is excluded from a program that involves lump-sum grants or one that relies on the choices of parents, so long as it is excluded because it is a church school. I hope Justice Sotomayor is correct and that my fears of a Zelman requirement, rather than a Zelman option, are misguided.

Quite honestly, if it were not for Zelman I would welcome the decision in Trinity Lutheran. The idea that government should not be allowed to discriminate against religious entities’ access to aid that has no religious content, such as playground safety, is welcome. Yet in the world wrought by Zelman, Trinity Lutheran seems far less innocuous. After Zelman students who do not want to be proselytized and parents who do not want to sacrifice their children’s eternal souls for a voucher to go to a religious school that may try to convert them away from their own faith (or nonfaith) may be forced to accept substandard education in schools that have been further drained of funds and students due to a voucher program.

One final note. Nothing in the court’s opinion suggests that denying a religious school funding under a no-funding provision like the one in the Michigan Constitution, which prevents funding to any private school whether religious or not, would be unconstitutional. In fact, such provisions do exactly what the court asks. They avoid denying funding along religious lines, and only deny funding based on a distinction between public and private entities regardless of the religious or non-religious nature of those entities.

The post Symposium: Trinity Lutheran and Zelman – Saved by footnote 3 or a dream come true for voucher advocates? appeared first on SCOTUSblog.

from http://www.scotusblog.com

Today’s orders (part 2)

Today’s orders (part 2)This morning at 9:30 am the justices released orders from last week’s private conference. I covered some of the highlights from those orders in an earlier post, but today’s orders also included an unusually high number of separate opinions regarding the cases in which the court acted – including three by the court’s newest justice, […]

The post Today’s orders (part 2) appeared first on SCOTUSblog.

Today’s orders (part 2)

This morning at 9:30 am the justices released orders from last week’s private conference. I covered some of the highlights from those orders in an earlier post, but today’s orders also included an unusually high number of separate opinions regarding the cases in which the court acted – including three by the court’s newest justice, Neil Gorsuch.

Gorsuch dissented from the court’s denial of review in Mathis v. Shulkin, in which the justices had been asked to review a rule created by the U.S. Court of Appeals for the Federal Circuit to use in cases involving disabled veterans who are seeking compensation for disabilities that they suffered while they were serving in the armed forces. The Federal Circuit applies a presumption that the medical professionals whom the Department of Veterans Affairs uses to evaluate these disabled veterans are competent to provide their opinions on any medical issues, which – veterans argue – then imposes a difficult burden on disabled veterans to show that the examiners are not in fact competent.

In a brief but sometimes folksy opinion that speaks directly to the reader at one point (“Now, you might wonder if our intervention is needed to remedy the problem.”), Gorsuch noted that judges on the Federal Circuit had voiced concerns about the presumption, which “may well mean the presumption’s days are numbered.” “But,” Gorsuch continued, “I would not wait in hope. The issue is of much significance to many today and, respectfully, it is worthy of this Court’s attention.”

Justice Sonia Sotomayor had her own statement – not a dissent – regarding the denial of review in the veterans’ case. She agreed with Gorsuch that the presumption “is questionable,” but in her view, this was not an appropriate case in which to take up the question because Mathis had not asked the VA for the credentials of his examiner. “Full review,” she explained, “would require a petition arising from a case in which the VA denied a veteran benefits after declining to provide the medical examiner’s credentials. Until such a petition presents itself,” she concluded, “staying our hand allows the Federal Circuit and the VA to continue their dialogue over whether the current system for adjudicating veterans’ disability claims can be squared with the VA’s statutory obligations to assist veterans in the development of their disability claims.”

In Bay Point Properties v. Mississippi Transportation Commission, Gorsuch (joined by Justice Clarence Thomas) issued a statement regarding the court’s denial of review in a case involving the Constitution’s just-compensation clause, which bars the government from taking private land for a public use “without just compensation.” Gorsuch suggested that the Mississippi Supreme Court’s decision allowing states to limit compensation when it “negotiates an easement limited to one purpose but later uses the land for an entirely different purpose” conflicts with the decision of a federal court of appeals and “seems difficult to square with the teachings of this Court’s cases holding that legislatures generally cannot limit the compensation due under” the Constitution’s takings clause. In light of the “general importance” of the question presented in the case, Gorsuch asserted, the court should grant review of the issue “at its next opportunity.”

Gorsuch concurred in the court’s disposition of Hicks v. United States, in which inmate Marcus Hicks argued that he should have his 20-year sentence reduced because, even though he committed his crime before the enactment of a federal sentencing law that would have given him a lower sentence, he was sentenced after the law went into effect. The federal government agreed that Hicks’ sentence was too long, and it asked the Supreme Court to send the case back to the U.S. Court of Appeals for the 5th Circuit for it to consider whether Hicks can meet the other criteria necessary to revise his sentence when he had failed to argue in that court that the sentence was too long. The justices agreed to do so today.

Gorsuch explained that he could not “think of a good reason to say no” to Hicks’ request. The court, he reasoned, routinely sends cases back to the lower court “not only when we are certain that curing the error will yield a different outcome, but also in cases where we think there’s a reasonable probability that will happen” – which is precisely the case here. Gorsuch acknowledged that the Supreme Court is not required “to rove about looking for errors to correct in every case in this large country,” and he agreed with the late Justice Antonin Scalia, whom he succeeded, that the court should be cautious before stepping into cases like this. But in this case, he concluded, “the lone peril” “seems to me the possibility that we might permit the government to deny someone his liberty longer than the law permits only because we refuse to correct an obvious judicial error.”

Chief Justice John Roberts dissented from the court’s decision in Hicks, joined by Thomas. Roberts emphasized that despite the government’s concession that Hicks received the wrong sentence, only two of the four criteria to have Hicks’ sentence reduced had been met. Using some folksy language of his own, Roberts pushed back against Gorsuch’s suggestion that the court should nonetheless send the case back to the lower court because “the outcome on remand is a no-brainer.” “But without a determination from this Court that the judgment below was wrong or at least a concession from the Government to that effect, we should not, in my view, vacate the Fifth Circuit’s judgment.”

Finally, Roberts – joined by Thomas, Gorsuch, and Justice Samuel Alito – dissented from the court’s decision to send the case of Johnson v. Alabama back to the state court for it to reconsider the case. Toforest Johnson, the inmate in the case, was convicted of murder and sentenced to death based on the testimony of a witness who said that she had heard Johnson confess to the crime during a phone call. Many years later, Johnson sought to vacate his conviction on the ground that prosecutors had failed to tell him that the witness had been paid for her testimony – in violation of their obligations under Brady v. Maryland, in which the Supreme Court held that prosecutors must provide defense attorneys with evidence favorable to the defendant. A state court rejected his request, relying on a state-law rule that Brady does not apply to evidence that would impeach a witness.

In its brief opposing review, the state urged the Supreme Court to vacate the lower court’s ruling and send Johnson’s case back so that the Alabama Court of Criminal Appeals could reconsider it in light of a 2013 Alabama Supreme Court ruling that rejected the criminal court’s interpretation of the state-law rule. That is what the Supreme Court did today, but Roberts and his three colleagues disagreed with that disposition of the case. Roberts reasoned that the state courts were aware of the 2013 ruling but still “declined to upset the decision below.” Emphasizing that the question before the Supreme Court “concerns state collateral review—purely a creature of state law that need not be provided at all”—Roberts concluded that, no matter what “one’s view on the propriety of our practice of vacating judgments based on positions of the parties, the Court’s decision to vacate this state court judgment is truly extraordinary.”

The justices also invited the acting solicitor general to file briefs expressing the views of the United States in four new cases:

There is no deadline for the federal government to file its briefs in response to today’s invitations.

The post Today’s orders (part 2) appeared first on SCOTUSblog.

from http://www.scotusblog.com

Opinion analysis: Divided court holds firm on deadlines for investors opting out of securities class actions

Opinion analysis: Divided court holds firm on deadlines for investors opting out of securities class actionsInvolving as it does a relatively technical question about class action procedures, California Public Employees’ Retirement System v. ANZ Securities did not look like a probable candidate for the final day of the term. But it was not until the last Monday in June that we finally received a 5-4 decision, with Justice Anthony Kennedy […]

The post Opinion analysis: Divided court holds firm on deadlines for investors opting out of securities class actions appeared first on SCOTUSblog.

Opinion analysis: Divided court holds firm on deadlines for investors opting out of securities class actions

Involving as it does a relatively technical question about class action procedures, California Public Employees’ Retirement System v. ANZ Securities did not look like a probable candidate for the final day of the term. But it was not until the last Monday in June that we finally received a 5-4 decision, with Justice Anthony Kennedy writing for the narrow majority.

The issue in the case involves the right to opt out of a class action: When representatives file a class-action proceeding, any of the members of the class are entitled to “opt out” and represent themselves. The question in this case is how statutes of limitations work in that situation. Does the filing of the main class action count as the filing for the individual that opts out or does the party that wants to opt out have to file its own complaint before the deadline? The Supreme Court has addressed a similar question before, in its 1974 decision in American Pipe & Construction v. Utah. The court held in that case that the class complaint did count as the claim of the individual claimants for purposes of statutes of limitation; specifically, it held that the class complaint “tolled,” or suspended, the statute of limitations so that the individual’s later complaint was timely.

The securities laws include two different kinds of filing deadlines. Specifically, for claims about misrepresentations in connection with the issuance of securities (under Section 11 of the Securities Act), Section 13 establishes two distinct deadlines: a one-year deadline running from the “discovery of the untrue statement” and an outside three-year deadline running from the date on which the statement was made. The U.S. Court of Appeals for the 2nd Circuit consistently has held that tolling under American Pipe applies only to the one-year deadline, not the three-year deadline. Applying that rule, it barred the action brought in this case by CalPERS – which opted out of a large class action brought against Lehman Brothers. The original action was brought in a timely manner, but CalPERS did not opt out of that action until more than three years after the challenged statements.

Kennedy’s opinion for the court affirms the 2nd Circuit’s decision, treating the case as directly governed by Kennedy’s 2014 opinion for the court in CTS Corp. v. Waldburger, which outlined a firmly bounded framework for analyzing statutes of limitation and statutes of repose. Repeatedly quoting from Waldburger, Kennedy explains:

Statutes of limitation are designed to encourage plaintiffs “to pursue diligent prosecution of known claims.” … In contrast, statutes of repose are enacted to give more explicit and certain protection to defendants. … For this reason, statutes of repose begin to run on “the date of the last culpable act or omission of the defendant.”

In this case, the opinion explains, the statute “in clear terms” bars any action more than three years after the offering, “admits of no exception[,] and on its face creates a fixed bar against future liability.” For the majority, then, the statute’s tie to “the defendant’s last culpable act [rather than] the accrual of the claim … is close to a dispositive indication that the statute is one of repose.”

Once the opinion has adopted the Waldburger framework and concluded that