October 01, 2016

Supreme Court Watch: Court, Interrupted

Justice Antonin Scalia’s sudden death in February and the ensuing controversy over the appointee to fill the vacant seat have overshadowed the actual decisions of the somewhat subdued Court. The Court’s next Conference is scheduled for Monday, September 26, and, because Senate Republican leaders have resolved to keep the Supreme Court seat vacant until after the November election, it looks likely that the Court will continue “as is” for the foreseeable future.

One upshot is that some important, closely watched cases resulted in deadlocked decisions with no precedential value owing to an evenly divided Court. The first of these is the expedited appeal regarding the Obama Administration’s executive actions regarding illegal aliens–undocumented immigrants, United States v. Texas, No. 15-674. The Court had previously agreed to allow additional time for oral argument in April, before the eight-member Court. On June 23, the Court issued a 4-4 per curiam ruling that left the decision of the lower court, the U.S. Court of Appeals for the Fifth Circuit, intact. Subsequent developments in this case include challenges to sanctions against Justice Department attorneys over alleged ethical lapses imposed by the trial judge, U.S. District Judge Andrew S. Hanen, and a pending petition seeking a rehearing before a full bench (which acknowledges that it is “exceedingly rare for this Court to grant rehearing”).

Another 4-4 tie in Friedrichs v. California Teachers Association, No. 14-915, on public-sector collective bargaining and “agency fees” charged to non-union members, disappointed those who anticipated this to be the most important labor union decision by the Court in years. The case was argued in January, with pundits predicting a 5-4 decision overruling the Court’s 1977 decision in Abood v. Detroit Bd. of Education and invalidating public-sector “agency shop” arrangements under the First Amendment as compelled subsidization of political speech. The March decision was a one-sentence judgment, however, affirming the decision below. In this case, too, a petition seeking rehearing before a full nine-member Court had been filed, but denied on June 28.

Other cases, though, do provide instructive guidance, and the following highlights a few of these rulings.


In Green v. Brennan, 578 U.S. ____ (May 23, 2016), a 7–1 Court decided a federal employment rights case in favor of the employee, Marvin Green. Green, who worked for the U.S. Postal Service, claimed he was denied advancement because of racial discrimination. The parties signed an agreement outlining his career options in December 2009, and Green later decided to resign rather than go forward with the agreement options. Forty-one days after resigning and 96 days after signing the agreement, he contacted the Equal Employment Opportunity counselor to pursue a claim of constructive discharge under Title VII of the Civil Rights Act. The applicable regulation required that an employee contact the counselor “within 45 days of the date of the matter alleged to be discriminatory.” 29 C.F.R. § 1614.105(a)(1) (2015). The question was, at which point did the clock start running for Green?

Justice Sotomayor, writing for the majority, held that in such cases the 45-day period started to run only after the employee resigns. Nothing in the term “matter alleged to be discriminatory” limited its scope only to employer conduct. The “matter” encompassed not only the alleged discriminatory failure to promote but, in a constructive-discharge claim, to the “discrimination-precipitated resignation.” Accordingly, the 45-day limitation began running only after Green gave notice of his resignation (but not on the effective date of that resignation). There was a factual dispute about when this notice occurred, and this question, along with the merits of his discrimination claim, was remanded.

Heffernan v. City of Paterson, 578 U.S. ____ (Apr. 26, 2016), revolved around an employer’s critical factual mistake as to an employee’s behavior. Heffernan, a police officer, had been seen picking up an election sign supporting an opponent of the incumbent mayor. Both the police chief and Heffernan’s supervisor were appointees of that mayor. The next day, Heffernan was demoted as punishment for his “overt involvement” in the opponent’s campaign. In fact, Heffernan had no campaign involvement, having picked up the sign as a favor for his bedridden mother. In his § 1983 lawsuit, Heffernan conceded that he was not engaged in protected speech or assembly when he picked up the sign, but argued that his demotion, nonetheless, was grounded in a mistaken perception that he engaged in protected activities, when the employer sought to unconstitutionally suppress his speech and that of other employees. The issue was whether the demotion was actionable given the perception (but not actuality) of engaging in protected political activity.

In a 6–2 ruling, with the opinion written by Justice Breyer, the Court found it was incorrect, as had the court below, to predicate relief under 42 U.S.C. § 1983 on the adverse action being prompted by an employee’s actual, but not perceived, exercise of constitutional rights. Assuming that the policy that Heffernan’s employer implemented violated the Constitution, what mattered was the employer’s motive and the facts as the employer understood them to be. The First Amendment focuses on the activity of the government, and the government in this case “acted upon a constitutionally harmful policy whether Heffernan did or did not in fact engage in political activity.” (There was a question as to whether the demotion was due to a different, “neutral policy prohibiting police officers from overt involvement in any political campaign,” but this was left for the court on remand to determine.)

Criminal Law

Utah v. Strieff, 579 U.S. ____ (June 20, 2016), reviewed the scope of the exclusionary rule in the context of the “attenuation doctrine” and outstanding warrants. The police, acting on an anonymous tip, had been monitoring a residence suspected of being a “drug house” and detained Strieff once he left the house. The officer asked Strieff for his ID and why he had been at the house and discovered an outstanding arrest warrant for Strieff for a traffic violation. The officer arrested Strieff, searched him incident to that arrest, and then charged him with unlawful possession of drugs and drug paraphernalia found during the search. Strieff moved to suppress, arguing that this evidence was inadmissible because it was derived from an unlawful investigatory stop. At trial, the prosecutor conceded there was no reasonable articulable suspicion for the initial stop, but argued that the existence of a valid arrest warrant “attenuated” or broke the connection between the unlawful stop and the discovery of the drugs.

In a 5–3 opinion written by Justice Thomas, the Supreme Court agreed. Although prior decisions had focused on the defendant’s independent acts in breaking this causal chain, the Court clarified that the doctrine was not so limited. Three factors were used to determine whether the doctrine allowed the evidence: temporal proximity between the unconstitutional act (the stop) and the discovery of the evidence, with admissibility diminishing in proportion to the shortness of the interval; the presence of intervening circumstances; and the purpose and flagrancy of the official misconduct. Although only minutes separated the stop from the drugs being found, the warrant itself was valid, predated the officer’s investigation, and was entirely unconnected with the stop (indeed, the warrant independently compelled the officer to make the arrest). At most, the officer’s conduct was “good-faith” negligence in connection with a genuine investigation, rather than a flagrant and intentional violation that was part of greater systemic police misconduct. The evidence was admissible because the discovery of the warrant attenuated the connection between the stop and the evidence.

Birchfield v. North Dakota, 579 U.S. ____ (June 23, 2016), a ruling in three consolidated cases, considered so-called “implied consent” laws and warrantless blood alcohol concentration (BAC) testing. Such laws, enacted by all states, make cooperation with BAC testing, if detained on suspicion of impaired driving, a condition of every driver’s license. Approximately 20% of drivers refuse to comply, and to address this, states now impose criminal penalties in addition to a license suspension for drivers who refuse testing. Birchfield was charged with impaired driving and a refusal offense after a state trooper found him trying to drive his car out of a ditch. Birchfield smelled of alcohol and “performed poorly” on field sobriety tests. A preliminary breath test showed a BAC around three times the legal limit, but under state law these results were only admissible to determine whether further testing was justified. Birchfield refused to consent to a blood draw, perhaps because of a recent prior citation for DUI. He admitted he refused but argued that the Fourth Amendment prohibited criminalizing his refusal. (The other cases involved a refusal to take a breath test, and a driver who consented to a blood draw after a warning about the refusal offense, who alleged coercion.) The central argument was, in brief, that the criminal law in these cases targeted not the drunk driving, but the distinct offense of refusing to submit to biological searches (blood, breath, or urine) for which the police would otherwise have to have a warrant and when the person had a constitutional right to refuse consent.

In a 5–3 decision, the Court determined that the Fourth Amendment permitted warrantless breath tests incident to arrests for drunk driving, but not other types of biological tests. Although blood and breath testing constituted “searches” under the Fourth Amendment, the exception for searches of the person conducted incident to a lawful arrest applied to breath tests. These had a slight impact on privacy: they captured air that, “sooner or later would be exhaled even without the test,” with a negligible intrusion of the person, and revealed only one type of information. A blood draw, in contrast, involved a significant physical intrusion and the resulting sample could reveal much more than the BAC.

Voting Rights

Two redistricting cases based on equal protection challenges and the “one person, one vote” principle were decided this Term. The first, Evenwel v. Abbott, 578 U.S. ____ (Apr. 4, 2016), considered how precisely voter equality must be measured, and whether the Fourteenth Amendment’s fundamental principle of “one person, one vote” requires apportionment of districts using the baseline of eligible voters (“citizens of voting age population,” CVAP, or other voter-population metrics) rather than total population. The Texas voters who brought the case argued that a 2013 state senate map created districts that were roughly comparable in terms of total population but “grossly malapportioned voters,” with deviation exceeding 40% using a voter-population baseline. (Texas has, in the words of one amicus brief in this case, “outsized legal and illegal alien populations,” which contributed to this effect.) Texas argued the Constitution allowed states to use alternative voter-population metrics; the amicus brief filed by the federal government argued that such discretion would “multipl[y] the opportunities for gerrymandering and other gamesmanship that entrenches incumbents and limits participatory democracy.”

In the end, the Court unanimously rejected a voter-equality mandate in the Equal Protection Clause. (Justices Alito and Thomas only joined in the outcome.) “[B]ased on constitutional history, [the] Court’s decisions, and longstanding practice, . . . a State may draw its legislative districts based on total population.” Section 2 of the Fourteenth Amendment retained total population as the congressional apportionment base, and this approach “applie[d] as well to the method of apportioning legislative seats within States.”

The Court’s decision in the second voting rights case, Harris v. Arizona Independent Redistricting Commission, 578 U.S. ____ (Apr. 20, 2016), was also unanimous. Harris and other voters alleged an unelected state commission intentionally manipulated voter population inequality for partisan purposes (overpopulating Republican districts while underpopulating Democratic districts) and in a mistaken belief that unequally populated districts were required by the Justice Department under the Voting Rights Act (VRA). The population deviation in the challenged map was four times greater than that of the districts drawn by the prior commission. The lower court concluded that the Fourteenth Amendment challenge failed because the apportionment was “primarily a result of good-faith efforts to comply” with the VRA, “even though partisanship played some role in the design of the map,” adding that the two motivations complemented each other, being “entirely parallel.” (Although Shelby County v. Holder, 570 U.S. ___ (2013), struck down the VRA coverage formula, the maps in this case were drawn in 2010, before that ruling.)

The Supreme Court affirmed, pointing to precedent allowing minor deviations in apportionment (less than 10% between the largest and smallest district) because precise “mathematical equality” was not required. (The actual deviation involved was just under 9%.) Further, the VRA prohibited the use of apportionment that would lead to a “retrogression” of minority voting power. When the deviation was less than 10%, the numbers alone could not support a constitutional violation, and challengers had to show that it was more “probable than not” that the deviation resulted from the “predominance of illegitimate reapportionment factors.” The record in this case, however, supported the conclusion that the deviations “predominantly” reflected the commission’s efforts to achieve compliance with the VRA rather than to promote a partisan political advantage.

Property Rights.

In United States Army Corps of Engineers v. Hawkes Co., Inc., 578 U.S. ____ (May 31, 2016), the question revolved around the Clean Water Act’s reference to “waters of the United States” and a determination by the United States Army Corps of Engineers regarding the presence or absence of such waters on particular land. This is important because landowners who discharge pollutants into waters covered by the Act without a permit from the Corps face horrific penalties; on the other hand, the process for and expense of a permit are equally daunting (the decision notes the average applicant “spends 788 days and $271,596 in completing the process”). The Corps allows a property owner to obtain a standalone “jurisdictional determination,” or JD, as to whether a property contains these “waters,” issued on a preliminary or a more definitive “approved” basis. An “approved” JD is defined by regulation as constituting a Corps “final agency action.” Three companies that received an approved JD affirming the presence of “waters of the United States” on their land sought review of this determination. A court of first instance dismissed for want of jurisdiction, ruling that the JD was not a “final agency action for which there is no other adequate remedy in a court” under the Administrative Procedure Act (APA). An owner could proceed without a permit and dispute the need for a permit in any subsequent EPA enforcement action, or apply for a permit and seek judicial review within that process.

In an opinion authored by Chief Justice Roberts, the Court unanimously held that the approved JD was a “final agency action” judicially reviewable under the APA. Bennett v. Spear, 520 U. S. 154 (1997), set out the two conditions that generally must be satisfied in order for agency action to be “final” under the APA: the action must be the consummation of the agency’s decision-making process and must be one by which rights or obligations had been determined or from which legal consequences would flow. The first factor was undisputed, and the second prong was satisfied because the definitive nature of approved JDs gave rise to “direct and appreciable legal consequences”—an approved JD was binding on the agency for five years and protected a property owner from civil liability for past discharges. Given the nature of the penalties involved, parties did not need to risk enforcement proceedings to challenge final agency action, and applying for a permit in the hope of judicial review also failed as an adequate alternative.

Civil Rights

In other decisions discussed in detail elsewhere, the Court ruled (again) on a race-conscious admissions program used by the University of Texas at Austin, finding that the “holistic review” program in which the University articulated concrete and precise educational goals was lawful under the Equal Protection Clause (Fisher v. University of Texas at Austin, 579 U.S. ____ (June 23, 2016)), and struck down two provisions of a 2013 Texas law imposing new requirements on abortion providers—one which had already resulted in reducing the number of abortion facilities in that state by half—as unconstitutional for placing an “undue burden” on access to abortion (Whole Woman’s Health v. Hellerstedt, 579 U.S. ____ (June 27, 2016)).

Coming Attractions

The Court has agreed to hear a regulatory takings case, Murr v. Wisconsin, No. 15-214, on whether the “parcel as a whole” concept in Penn Central establishes a rule that two legally separate, but commonly owned, contiguous parcels are to be treated as one in assessing a takings claim. The Murr family built a holiday cabin on a waterfront parcel, with title held by the family business (later transferred to family members). The adjoining lot was acquired afterwards by the family as an investment and remained undeveloped. In 1975, at the time the business owned one parcel, the law changed to make the investment lot too small to develop by itself; an exception applied only if the property was held by a different owner than the abutting parcels. The Murrs sued after a variance was denied, alleging a taking of the undeveloped lot. Based on the common ownership, Wisconsin courts ruled that the two contiguous parcels combined were a “parcel as a whole,” and one unit. Because the “whole” parcel remained developable and usable using this approach, there was no diminishment and no compensable taking. (The Murrs, though, could only build on the vacant lot if they demolished the existing cabin.) In this appeal, the Court will have to decide the critical question of how the unit of “property” against which the loss of value is to be measured must be defined.

Other cases to watch when the Court resumes are Manuel v. City of Joliet, No. 14-9496, on whether a tort claim, “malicious prosecution,” arising from an arrestee’s prolonged detention on bogus drug charges and the suppression of a crime lab report exonerating him, is cognizable under the Fourth Amendment; Ivy v. Morath, No. 15-486, on the accommodations provisions of Title II of the Americans with Disabilities Act and the Rehabilitation Act mandating that services, programs, and activities of a public entity be accessible by the disabled, and the extent to which “reasonable accommodation” applies to programs managed by a state agency but administered by private vendors (in this case, a driver’s education course that was mandatory for certain applicants for a driver’s license, when the state agency is the sole entity authorized to issue certificates of course completion); a Free Exercise and Equal Protection Clause case, Trinity Lutheran Church of Columbia v. Pauley, No. 15-577, on whether the exclusion of a church from an otherwise neutral and secular grant program (to resurface a playground using scrap tire materials) is unconstitutional, when no valid Establishment Clause concern exists; and cases on who is eligible to sue under the Fair Housing Act (Bank of America Corp. v. City of Miami, No. 15-1111, consolidated with Wells Fargo & Co. v. City of Miami, No. 15-1112, on whether the FHA’s “aggrieved” person extends to cities seeking to recover money damages from residential mortgage lenders, on the theory that the lenders engaged in discriminatory loan practices that led, eventually, to neighborhood blight and decreased property tax revenues).

One case that the Court has not yet agreed to hear (as of the time of writing) raises an intriguing First Amendment claim. Packingham v. North Carolina, No. 15-1194, examines the validity of a state law that makes it a felony for a registered sex offender to “access” a variety of commercial websites and social media sites, if the site is “know[n]” to allow minors to have accounts. The law applies regardless of whether the underlying sex conviction involved a minor. A North Carolina court upheld the enforcement of the law against Packingham, a registered sex offender since 2002 who had completed all criminal justice supervision, based on a Facebook post in which Packingham thanked God for the dismissal of a traffic ticket (“No court costs, no nothing spent . . . . Praise be to GOD, WOW! Thanks JESUS!”).