SCOTUS Remands In Birth Control Mandate Cases

In a sure sign the Court was split 4-4 on the validity of the ObamaCare birth control mandate under RFRA, the Court today issued a per curiam order in Zubik v. Burwell remanding the consolidated cases to the circuit courts for reconsideration in light of the parties' supplemental briefs addressing "whether contraceptive coverage could be provided to petitioners' employees, through petitioners’ insurance companies, without any such notice from petitioners." The dispute in the case surrounds the private, religious employers' objection the birth control mandate's so-called "accommodation" that allows such employers to decline to pay for the objectionable insurance coverage but that allows their employees to nonetheless receive the coverage through the employers' health plans.

The Court's order provides: "the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans 'receive full and equal health coverage, including contraceptive coverage.'" Order at 4.

According to the order, a remand in these circumstances is not unusual. The order lists three recent cases in which the Court "has
taken similar action." Id.

The remand buys a divided Court time for the appointment of a ninth Justice who no doubt will be critical to the resolution of the cases. The circuits were originally split 5-1 on the issue presented in the cases, and some form of circuit split is likely to persist after the remand unless the parties reach agreement on an accommodation.

Clement Declines To Fix Factual Misstatements In Deflategate Appeal

It was a dark day for me when I learned that Paul Clement would be representing the NFL in its appeal of Judge Berman's Deflategate ruling, which overturned the league's disciplinary action against Tom Brady for alleged cheating in the 2014 playoffs. The appeal would feature two of my personal heroes--Clement and Brady--going at it in a fight that could determine the fate of the Patriots 2016 season. (In short, critically important stuff.)

The Second Circuit recently heard argument in the case, during which Clement made assertions that many pundits thought misrepresented the facts. Today, Clement declined to correct those misstatements. Here's the skinny:

In Tom Brady's initial appeal to NFL Commissioner Roger Goodell following the imposition of, among other things, a 4-game suspension, Brady told Goodell he subsequently spoke to one of the alleged ball deflators, Jastremski, about both the broiling scandal and Jastremski's preparation of the game balls for the Super Bowl. A since-released transcript of that appeal hearing shows Brady testified:

I don’t remember exactly what we discussed. But like I said, there was two things that were happening. One was the allegations which we were facing and the second was getting ready for the Super Bowl, which both of those have never happened before. So me talking to him about those things that were unprecedented, you know, he was the person that I would be communicating with. Tr. 130.

He also said:

So I think trying to figure out what happened was certainly my concern and trying to figure out, you know, what could be — possibly could have happened to those balls. Tr. 144.

But when the commissioner reported the facts in his appeal ruling, which denied Brady relief, Goodell wrote the following in a footnote:

In response to the question, “Why were you talking to Mr. Jastremski in those two weeks?,” Mr. Brady responded, in sum: “I think most of the conversations centered around breaking in the balls [for the Super Bowl].” For reasons noted, I do not fully credit this testimony.

Goodell cited Brady's lack of credibility in upholding the initial Deflategate penalties. But the footnote was misleading, as Brady’s testimony from the appeals hearing shows. 

Clement had a chance to recede from those misstatements in the NFL’s opening brief to the Second Circuit and at oral argument. But instead he and the NFL doubled down. At argument, for instance, Clement told the three-judge panel: "The first and only meeting ever in the quarterbacks room. And the explanation for that is they’re preparing balls for the Super Bowl." (emphasis added). That ignored Brady's statement to the commissioner that he also discussed the Deflategate issue with Jastremski, as one would expect given the surrounding circumstances.

That misstatement engendered a public outcry--mostly from commentators in the New England area, but also elsewhere--demanding that Clement correct the mistake in the Second Circuit. 

In a letter to the court filed today, March 21, Clement stood by his statements. Here's how Clement characterized his oral argument contention (which I've already quoted above): "Counsel explained at argument that the Commissioner found Mr. Brady's explanation that those communications related to the preparation of Super Bowl footballs not to be credible." Letter at 2. But that pretty clearly isn't all Clement said at the argument, where he added that "the explanation" for Brady's conversation with Jastremski was "they're preparing balls for the Super Bowl." At best, Clement omitted the fact that Brady told the commissioner he and Jastremski also discussed the Deflategate allegations as part of Brady's efforts to "figure out" what "possibly could have happened to those balls." So Goodell's later claim that Brady's testimony was incredible because he failed to mention discussing the scandal with Jastremski was false.

Clement went on to write in his March 21 letter that "what is relevant is that the Commissioner rejected as not credible the only innocent explanation Mr. Brady offered." Letter at 3 (emphasis in original). Sure. But Commissioner Goodell's misrepresentations in his appeal ruling unquestionably portrayed Brady in a bad light. Why keep up the ruse on appeal to the Second Circuit.

(Elsewhere in the letter, Clement admits that the NFL's opening brief contained a misstatement concerning which league interviews Brady's lawyer attended, but claims the fact was "immaterial." Letter at 2, first full paragraph.)

Clement is a highly-respected lawyer and is widely considered one of the best Supreme Court advocates of his generation. I assume the factual liberties in the NFL's brief and the oral argument were unintentional. But that doesn't explain why he wouldn't fess up to them in his letter to the Second Circuit.

Thomas Asks First Oral Argument Question In A Decade

Justice Thomas today asked his first question of counsel at an oral argument in just over one decade. Thomas is well known for his view that oral argument is a time for counsel to present her arguments, not a time for the justices to interrupt to express their own positions on the case. The argument was in the Voisine v. United States case.

Early speculation is that Justice Thomas's question was motivated by Justice Scalia's absence on the Court and a desire to voice opinions that Scalia might previously have voiced for both men (Scalia was a frequent questioner and is often cited as sparking the Court's current practice of asking a torrent of questions during argument). If that's the case, we can expect that Thomas's questioning today won't be an isolated event.

Once the transcript of the oral argument is released, I'll link to it here.

UPDATE: Here is the link to the Voisine oral argument.   Justice Thomas's questioning begins on page 35 and runs through page 39. Five whole pages of questioning!

Great Use of Pictures in an Appellate Brief

The issue in Foster v. Chatman, currently in the briefing stages in front of SCOTUS,  is whether prosecutors in a capital case violated Batson by intentionally striking black jurors on the basis of race. Not only did prosecutors strike all four black jurors from the panel while claiming facially race-neutral reasons that would apply equally to unstricken white jurors, but the defendant later uncovered documentary evidence that prosecutors had conspired to strike all the black jurors.

To highlight that latter point, the Petitioner's brief copy-and-pastes photos of the prosecutors' damning work product into its Statement of the Case section. Pet. Br. 15-16. The effect is terrific: the photos display jury selection worksheets in which the black jurors' names are highlighted and marked with a "B"; juror questionnaires on which prosecutors circled the word "BLACK" that jurors had filled into the race category; and another document on which prosecutors labeled black jurors "B#1," "B#2," etc.

As the Petitioner's brief amply demonstrates, when the pictorial evidence supports your position that strongly, you should include it within the body of your brief.

The Chief Justice’s Obergefell Dissent and His View of the ‘Judicial Role’

     Obergefell is now in the books, and same-sex marriage is the law of the land. In this post, I lay out a few of my thoughts, not on Justice Kennedy’s majority opinion, but on the lead dissent in the case, written by Chief Justice Roberts.

First, the dissent is classically the Chief’s, representing the sort of concern for the Court’s legacy and role that we would rightly expect from a Chief Justice. For instance:

• “Those who founded our country would not recognize the majority’s conception of the judicial role.” (Op. at 25);
• “When decisions are reached through democratic means, some people will inevitably be disappointed with the results. But those whose views do not prevail at least know that they have had their say, and accordingly are—in the tradition of our political culture—reconciled to the result of a fair and honest debate.” (Op. at 26); and
• “[A] Justice’s commission does not confer any special moral, philosophical, or social insight sufficient to justify imposing those perceptions on fellow citizens under the pretense of ‘due process.’” (Op. at 22).

Second, compared to the Chief’s dissent in Windsor, his Obergefell dissent takes a decidedly different approach to dissenting opinions. Whereas in Windsor the Chief attempted to argue that the majority opinion did not resolve future questions about gay marriage (it was Justice Scalia’s dissent that forecast the demise of anti-same-sex marriage laws), in Obergefell he has taken the opposite approach, arguing that the majority’s opinion paves the way for “plural marriage.” The Chief writes:

•   “One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people.” (Op. at 20);
•   “It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.” (Id.); and
•   “Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not.” (Id.).

The Chief ultimately suggests that there may be “relevant differences that compel different legal analysis.” (Op. at 21). But he makes no attempt to say what those differences may be, and indeed, the tenor of his opinion suggests he thinks Obergefell removes the bulwarks that would otherwise prevent some 500,000 polyamorous American families (id.) from enjoying the due process right to marriage the majority establishes.

Third, the Chief observes, correctly I think, that there is a difference, for equal protection purposes, between the right to the title of “marriage” and the rights to the benefits marriage has traditionally conveyed upon its members. The challenged laws in Obergefell were not laws that deprived same-sex couples of the many benefits of marriage (spousal hospital visitation; adoption; trusts & estates; tax incentives), but merely deprived them of the right to “marriage.” A law depriving same-sex couples of tax benefits presents a far greater equal protection concern than a law that tells same-sex couples only that they are not entitled to call themselves “married.” As the Chief says, “[t]he equal protection analysis might be different, in my view, if we were confronted with a more focused challenge to the denial of certain tangible benefits.” (Op. at 24).

That thought mirrors one I’ve had: that the same-sex marriage movement has done a masterful job of eliminating the term “civil union” from our national discourse. A state providing for same-sex civil unions—so long as those unions conveyed all the same benefits as marriage, while withholding only its title—would present a much closer equal protection challenge, and might even survive such a challenge. But by pretending that there was but one choice (marriage or non-marriage), the challengers teed up a challenge that really was never there. That is, it presented the Court with a false choice between rights or no rights. But that choice needn’t have been made.

While the “psychic harm” or stigma of not being permitted to “marry,” despite the fact that a couple enjoys all the traditional benefits of marriage, may nonetheless offend the equal protection clause, that is far from clear. That issue probably should have been decided. 

Presidential Comments About Pending SCOTUS Decisions

At VC, Professor Adler has a useful post discussing a forthcoming study reporting that President Obama has commented on pending SCOTUS decisions with more frequency and more depth than previous presidents. I agree with Adler that the President's practice is a poor one, since it lends the impression that the Court is not a neutral body and is subject to external influence. Adler distinguishes, as would I, between comments made during deliberations (inappropriate) and comments made before argument and during the briefing (appropriate). 

I would add that the reason for this President's increased rhetoric concerning pending cases is not likely merely the fact that he was a U.Chicago law professor, but also because the Supreme Court has now heard three cases threatening the President's signature legislative achievement: Obamacare. 

We all remember the first go-round, where the Court voted 5-4 to uphold the individual mandate on tax grounds. Then, there was rampant speculation--apparently confirmed from within the Court itself--that the Chief Justice had changed his conference vote, where he had initially sided with the dissenters to strike down the law. That was around the time the President began ma

Then there the RFRA challenge brought by the private, religious employers. And now Obamacare is again in serious jeopardy with this year's challenge to the federal subsidy provisions. 

The President campaigned vigorously in the press and public to get the law passed; to promote the law and the use of the healthcare exchanges; and later to defend the law from challenges in the Court. So far as I am aware, other presidents have not faced similar efforts by litigants to strike down their signature legislative accomplishments while the president was in office. 

Kansas Governor OK's Remarkable Invasion Of Judicial Branch

In an apparent act of retaliation against the Kansas Supreme Court for striking down an earlier law dealing with education, the Kansas legislature and Governor Sam Brownback have passed and signed a law funding the judicial branch but simultaneously threatening to defund the branch if it strikes down the funding law. And there is reason to think the courts might: The law purports to vest the authority to select chief district judges in the State's district judges themselves, not in the Kansas Supreme Court. The State constitution gives the supreme court "general administrative authority over all courts in this state."

According to NYT, critics of the law accuse the governor of attempting "to stack the district courts with judges who may be more favorable to his policies."

A threat to defund the entire judicial branch sounds like an unrealistic threat to me, but it's there nonetheless.