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Justices send cake sequel back to state court

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Justices send cake sequel back to state court

Just over a year ago, the justices issued a narrow ruling in the case of Jack Phillips, a Colorado baker and devout Christian who refused to create a custom cake for a same-sex couple’s wedding festivities. The Supreme Court’s decision for Phillips rested primarily on the rationale that the Colorado administrative agency that ruled against Phillips treated him unfairly, because it was too hostile to his religious faith. Today the court declined to take up a question that it left open in Phillips’ case: Can sincerely held religious beliefs trump neutral laws that apply to everyone? Instead, the justices sent the case of an Oregon couple who refused to bake a cake for a same-sex wedding celebration back to the state court for another look in light of Phillips’ case.

The couple, Melissa and Aaron Klein, owned a bakery in the Portland suburbs. Six years ago, Rachel Bowman-Cryer and her mother, Cheryl, visited the bakery to order a wedding cake for Rachel’s upcoming marriage. But the Kleins wouldn’t take the order, explaining that the bakery did not make cakes for same-sex ceremonies because they believe that a marriage is limited to the union between a man and a woman.

Rachel and her fiancée complained to a state administrative agency. They argued that the Kleins’ refusal to make a cake for them violated state laws that prohibit businesses that serve the public from discriminating based on sexual orientation. The agency agreed and awarded them $ 135,000. A state appeals court upheld that ruling. The state court rejected the Kleins’ argument that applying the state’s anti-discrimination laws to them violates the First Amendment by compelling them to “express a message—a celebration of same-sex marriage—with which they disagree.”

Last fall the Kleins went to the Supreme Court, asking the justices to take up their case. After considering the Kleins’ case at 10 consecutive conferences, the justices today sent the case back to the Oregon Court of Appeals, for that court to reconsider it in light of the Supreme Court’s decision in Phillips’ case. The court’s order was a terse one that did not indicate exactly how Phillips’ case might affect the ruling in the Kleins’ case or why it had taken so long for the justices to act on the Kleins’ case. The order may have allowed the justices to avoid tackling this contentious issue for now, but they may not be able to dodge the question forever: Earlier this month, the Washington Supreme Court reaffirmed its ruling against a florist who refused to provide flowers for a same-sex wedding. The U.S. Supreme Court had sent that case back to the state court last year in the wake of its ruling in Phillips’ case; lawyers for the florist have already announced that they intend to appeal to the U.S. Supreme Court.

The justices did not act on the three petitions for review filed by the Trump administration, seeking review of decisions by lower courts blocking the federal government from ending the program known as “Deferred Action for Childhood Arrivals,” which allows undocumented immigrants who came to the United States as children to apply for protection from deportation and (among other things) for permission to work in this country. The petitions, which the justices had considered at their conference last week for the first time since January, have already been distributed for the justices to consider again at their conference on Thursday.

We expect orders from Thursday’s conference on Monday, June 24, at 9:30 a.m.

This post was originally published at Howe on the Court.

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Opinion analysis: Virginia’s moratorium on uranium mining is not pre-empted, but the role of legislative purpose remains open for debate

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Opinion analysis: Virginia’s moratorium on uranium mining is not pre-empted, but the role of legislative purpose remains open for debate

The Supreme Court has concluded that Virginia’s decades-old moratorium on uranium mining is not pre-empted by the Atomic Energy Act. But there is no clear answer to the question that pervaded the briefing and oral argument: What is the proper role for state legislative purpose in a pre-emption analysis?

Today’s judgment was accompanied by three opinions: a lead opinion written by Justice Neil Gorsuch and joined by Justices Clarence Thomas and Brett Kavanaugh; a concurring opinion by Justice Ruth Bader Ginsburg, joined by Justices Sonia Sotomayor and Elena Kagan; and a dissenting opinion by Chief Justice John Roberts, joined by Justices Stephen Breyer and Samuel Alito. The Gorsuch opinion stated that state legislative purpose has no place in pre-emption analyses, whereas the Ginsburg opinion expressed discomfort at such a hard-line stance. Roberts’ dissent would have used evidence of state legislative purpose to find that Virginia’s ban was pre-empted. Overall, today’s opinions likely presage important battles to come on the matter of legislative purpose as the court’s composition shifts — battles that will take place across a wide variety of subjects and doctrinal fields.

Justice Gorsuch with opinion in Virginia Uranium Inc. v. Warren (Art Lien)

The facts of the case, presented in more detail in my argument preview, involve the largest uranium deposit in the United States, located in Virginia. In 1983, the state placed a moratorium on uranium mining on private lands, which all the parties before the Supreme Court agreed is a matter for state regulation. Yet the Atomic Energy Act gives to the Nuclear Regulatory Commission sole authority to regulate the closely related radiological safety of uranium milling and tailings management. These activities present considerable risks, and Virginia Uranium argued that Virginia’s true motive in banning uranium mining was to regulate the safety of milling and tailings. The district court and U.S. Court of Appeals for the 4th Circuit refused to look beyond the face of Virginia’s moratorium, and today, six justices agreed.

Like the lower courts, Gorsuch hewed closely to the statutory language in his lead opinion. The AEC includes express language providing that NRC authority arises only after uranium has been removed from natural deposits, and it contains different express language permitting NRC to regulate uranium mining on federal land. A separate section of the statute that permits limited cooperative federalism for regulating radiological hazards contains a savings clause — and Gorsuch rejected a strained reading of that clause that would have left Virginia unable to regulate mining on private land.

Moreover, Gorsuch emphasized that the NRC has long maintained that it has no authority under the AEA to regulate uranium mining on private land; were the court to read the savings clause as Virginia Uranium asked, neither the state nor the federal government could regulate the unique risks of uranium mining. Referring to Justice Antonin Scalia’s famous language from Whitman v. American Trucking Associations Inc., Gorsuch concluded: “Talk about squeezing elephants into mouseholes.”

All the opinions contended with an important prior decision involving pre-emption and the AEA, Pacific Gas & Electric Co. v. Energy Resources Commission. There, the Supreme Court upheld a California moratorium on new nuclear power plants within the state until the United States developed a means of disposing of spent nuclear fuel. That opinion, which disavowed a focus on state legislative purpose, made a purpose-based inquiry anyway — a point that Virginia Uranium seized on. Gorsuch took the opportunity to rein in an expansive reading of PG&E. Gorsuch explained that PG&E involved a state’s potential intrusion into “core federal powers reserved to the federal government by the AEA,” whereas Virginia’s moratorium on mining focuses on an activity “far removed from NRC’s historic powers.” Given the serious implications for state sovereignty were the court to inquire into legislative purpose in this case, Gorsuch concluded, PG&E should not be extended.

Finally, Gorsuch’s opinion staked out some key points about the propriety of inquiring into state legislative purposes. According to Gorsuch, that kind of inquiry undermines democratic values because it incentivizes state legislatures to “resort to secrecy and subterfuge” rather than engage in open and rigorous debate. It further undermines uniformity with respect to pre-emption because it could mean that one state’s ban on uranium mining would not be pre-empted, while another with the same text but an impermissible purpose would fall. Additionally, Gorsuch reasoned, inquiries into purpose are flawed because it is unrealistic to ascribe a single purpose to a many-membered legislature.

Ginsburg’s opinion concurring in the judgment expressed concern about Gorsuch’s sweeping assertions about the perils of inquiring into legislative purpose. She largely agreed with Gorsuch’s statutory analysis, including the basis for distinguishing PG&E, and thought it appropriate to ground the decision only in the statutory text. Ginsburg declined to disavow any inquiry into state legislative purposes. Still, she rejected the argument that Virginia’s ban was a pretext for regulating the radiological safety of milling and tailings management, even though the ban makes it very unlikely that such activities will take place within the state’s borders. Distinguishing National Meat Association v. Harris, Ginsburg emphasized: “A state law regulating an upstream activity within the State’s authority is not preempted simply because a downstream activity falls within a federally occupied field.”

Roberts’ dissent criticized Gorsuch’s lead opinion for ducking the real issue, that is, whether the state could regulate a non-pre-empted field (uranium mining) as a pretext for regulating in a field that is pre-empted (uranium milling and tailings). Citing PG&E, Roberts stated that a state law is pre-empted “when its purpose is to regulate within a preempted field.” Like California in PG&E, Roberts charged, here Virginia has the obligation, once the pretextual argument is raised, to put forth a “nonsafety rationale” for its ultimate effect of targeting pre-empted activities. Roberts emphasized the pragmatic notion that “[s]tates may try to regulate one activity by exercising their authority over another.” The entire point of the purpose inquiry under the court’s AEA precedents, therefore, is to tease out which exercises of state regulatory power are pre-empted and which are not. To look only to the text of the statute, Roberts argued, invites evasion.

For followers of federalism and statutory analysis, it seems likely after Virginia Uranium that the justices’ approaches to the role of legislative purpose are in a state of flux. For followers of nuclear-licensing matters, this case is a significant addition to the family of AEA pre-emption decisions in its firm support of state authority despite pretextual motives.

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Opinion analysis: Justices uphold “separate sovereigns” doctrine

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Opinion analysis: Justices uphold “separate sovereigns” doctrine

The Constitution’s double jeopardy clause guarantees that no one shall “be twice put in jeopardy” “for the same offence.” Today the Supreme Court upheld a longstanding interpretation of that clause, known as the “separate sovereigns” doctrine. By a vote of 7-2, the justices rejected a challenge to the doctrine by an Alabama man who argued that he could not be prosecuted for both federal and state gun charges arising from the same traffic stop.

Justice Alito with opinion in Gamble v. U.S. (Art Lien)

The case now before the court began in 2015, when Terance Gamble was pulled over by police for having a faulty headlight. The police officer smelled marijuana and searched Gamble’s car, where he found two bags of marijuana, a digital scale and a handgun.

Alabama charged Gamble with violating state drug laws; both the state and the federal government also charged him with being a felon in possession of a firearm. A state court in Alabama sentenced Gamble to one year in prison.

Gamble urged the federal trial court to throw out the charge against him, arguing that prosecuting him in federal court after the state had charged him would violate the double jeopardy clause. The trial court rejected his claim, explaining that it had to follow the separate sovereigns doctrine unless and until the Supreme Court overruled it. The trial court sentenced Gamble to nearly four years in federal prison, followed by a year of supervised release. The U.S. Court of Appeals for the 11th Circuit upheld the district court’s ruling and Gamble’s sentence. Gamble asked the Supreme Court to weigh in; the justices considered his case at 11 consecutive conferences before agreeing to do so.

Justice Samuel Alito wrote the majority opinion, which was joined by Chief Justice John Roberts and Justices Clarence Thomas, Stephen Breyer, Sonia Sotomayor, Elena Kagan and Brett Kavanaugh. Alito began by explaining that the “separate sovereigns” doctrine is not an exception to the double jeopardy clause at all, but instead is part and parcel of the clause itself because the clause bars successive prosecutions for the same offense – not for the same conduct. Offenses, Alito continued, are defined by laws, which are in turn defined by sovereigns. “So where there are two sovereigns,” Alito concluded, “there are two laws,” and therefore two offenses.

Alito emphasized that the Supreme Court has repeatedly reaffirmed this principle, for over 170 years. And it makes sense, Alito suggested, because different governments can have different interests. For example, he observed, if “only one sovereign may prosecute for a single act, no American court—state or federal—could prosecute conduct already tried in a foreign court,” even if the U.S. government lacked confidence in the foreign court or had different reasons for wanting to punish that conduct.

Gamble argued that the Supreme Court’s line of cases on the “separate sovereigns” doctrine conflicts with the understanding of the Founding Fathers who ratified the double jeopardy clause. But that argument, Alito countered, must overcome principles of stare decisis – the idea that courts should not overrule their earlier decisions unless there is a very good reason to do so. “This means,” Alito wrote, that Gamble would have to offer “something more than ambiguous historical evidence.” But Gamble cannot do so, Alito concluded after reviewing early cases and treatises in some detail, “much less do so with enough force to break of chain of precedent linking dozens of cases over 170 years.”

Thomas joined Alito’s opinion, but he filed his own concurring opinion that focused on what he described as the “proper role of stare decisis.” Thomas’ view appeared starkly different from the majority’s, as he explained that, “if the Court encounters a decision that is demonstrably erroneous—i.e., one that is not a permissible interpretation of the text—the Court should correct the error, regardless of whether other factors support overruling the precedent.” Perhaps with an eye toward upcoming battles over issues like abortion, Thomas lamented that “proponents of stare decisis tend to invoke it most fervently when the precedent at issue is least defensible,” and he lamented that the doctrine of stare decisis “has had a ‘rachet-like effect,’ cementing certain grievous departures from the law into the Court’s jurisprudence.”

Justices Ruth Bader Ginsburg and Neil Gorsuch each filed their own dissents from the court’s opinion. Ginsburg complained that the “division of authority between” the federal and state governments was intended to provide extra protection for the rights of the people, but that today’s decision takes advantage of that division to take away some of those rights. Adding that the “separate sovereigns” doctrine “has been subject to relentless criticism by members of the bench, bar, and academy,” she would reverse Gamble’s conviction.

Gorsuch made some of the same points as Ginsburg in his dissenting opinion, but he was significantly more critical of the majority’s opinion on stare decisis. Gorsuch acknowledged the need to “pay heed to the considered views of those who have come before us, especially in those cases,” but he emphasized that “stare decisis isn’t supposed to be the art of being methodically ignorant of what everyone knows.” “Indeed,” Gorsuch continued, “”blind obedience to stare decisis would leave this Court still abiding grotesque errors like” the Supreme Court’s 1857 decision holding that blacks were not citizens and could not bring a lawsuit in U.S. courts or its 1944 decision upholding the internment of Japanese-Americans during World War II.

Gorsuch closed his dissent by contending that when “governments may unleash all their might in multiple prosecutions against an individual, exhausting themselves only when those who hold the reins of power are content with the result, it is the poor and the weak, and the unpopular and controversial who suffer first—and there is nothing to stop them from being the last.”

Today’s decision leaves the “separate sovereigns” doctrine in place, but the effects of a ruling for Gamble could have been significant. As Justice Stephen Breyer noted at the oral argument last fall, a ruling that struck down the doctrine would have made it harder for the federal government to prosecute domestic violence among Indian tribes. And in the 1990s, federal prosecutors relied on the doctrine to try the Los Angeles police officers accused of beating motorist Rodney King on federal civil-rights charges after the officers were acquitted in state courts.

Gamble’s case also drew attention because of the effect that a ruling in his favor could have had if President Donald Trump pardons friends and administration officials who face federal charges. In March, Manhattan district attorney Cyrus Vance charged Paul Manafort, the president’s former campaign manager, with more than a dozen state felonies, including mortgage fraud. The charges came after Manafort had been sentenced in federal court to more than seven years in prison; the state charges are intended to ensure that Manafort would still face prison time even if Trump eventually pardons him for the federal crimes.

This post was originally published at Howe on the Court.

The post Opinion analysis: Justices uphold “separate sovereigns” doctrine appeared first on SCOTUSblog.

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Opinion analysis: Court throws out legislators’ appeal in racial-gerrymandering case

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Opinion analysis: Court throws out legislators’ appeal in racial-gerrymandering case

Last week Virginia held its primary election for the state’s House of Delegates. It used a new map, which had been drawn with the help of a court-appointed expert after a federal court threw out the old one. The lower court ruled that 11 districts were the product of unconstitutional racial gerrymandering – that is, the legislators who drew the districts relied too heavily on race. Today a divided Supreme Court left that decision in place, ruling that the state’s legislature did not have a legal right – known as “standing” – to appeal the district court’s decision to the Supreme Court. The decision means that the state’s general election in November will likely go forward using the same new map.

Justice Ginsburg announces opinion in Virginia House of Delegates v. Bethune-Hill (Art Lien)

The lawsuit that led to today’s decision was filed five years ago by residents of 12 different legislative districts in Virginia. They argued that by creating districts in which 55 percent of the voters were African-American, the legislature had diluted the strength of African-American voters in neighboring districts, giving Republicans an advantage there. A federal district court rejected the residents’ argument, but the Supreme Court sent the case back for the lower court to take another look at 11 of the 12 districts.

When the case returned to the lower court, the district court struck down the old map. Race, the district court concluded, had been the primary factor behind the design of each district, and the legislature had not shown that each district needed to have a voting-age population that was 55-percent African-American. When Virginia’s attorney general declined to appeal the ruling to the Supreme Court, the state’s House of Delegates did so instead, and the justices heard oral argument in March.

By a vote of 5-4, the justices today dismissed the House of Delegates’ appeal. Justice Ruth Bader Ginsburg wrote for the majority, in an opinion that was joined by Justices Clarence Thomas, Sonia Sotomayor, Elena Kagan and Neil Gorsuch.

The House of Delegates, Ginsburg explained, argued first that it had standing to appeal to the Supreme Court to represent Virginia’s interests. But Virginia law makes clear, Ginsburg emphasized, that only the state’s attorney general has the authority to represent the state in civil litigation. Indeed, Ginsburg noted, even if Virginia had given the House of Delegates the power to represent the state, the House of Delegates never indicated in the lower court that it was doing so; instead, “the House has purported to represent its own interests” throughout the case.

Ginsburg also rejected the House’s argument that it has standing to appeal in its own right. Addressing the House’s contention that it is “the legislative body that actually drew the redistricting plan” and would lose power to draw the new districts if a remedial order gave that power to the district court, Ginsburg observed that state law gives power over redistricting to the state’s General Assembly, “of which the House constitutes only a part.” This case is therefore different, Ginsburg reasoned, from a 2015 case in which the Supreme Court agreed that both houses of Arizona’s legislature could challenge the constitutionality of a referendum that gave authority over redistricting to an independent commission. Moreover, Ginsburg added, in the Arizona case the referendum permanently deprived the legislature of its role in redistricting, while in this case the remedial order “does not alter the General Assembly’s dominant initiating and ongoing role in redistricting.”

Ginsburg similarly dismissed the House’s argument that it had standing to appeal the district court’s order because the new maps would affect its membership: Even if that were true, she concluded, “the House as an institution has no cognizable interest in the identity of its members,” and changes to those members therefore would not provide the kind of harm that the House would need to have standing.

Justice Samuel Alito dissented, in an opinion that was joined by Chief Justice John Roberts and Justices Stephen Breyer and Brett Kavanaugh. Alito would have held that the House did have standing because the use of the new court-ordered map would “harm the House in a very fundamental way.” In particular, Alito explained, “it is precisely because of the connections between the way districts are drawn, the composition of a legislature, and the things that a legislature does that so much effort is invested in drawing, contesting, and defending districting plans.” “To suggest otherwise, to argue that substituting one plan for another has no effect on the work or output of the legislative body whose districts are changed,” Alito posited, “would really be quite astounding.”

This post was originally published at Howe on the Court.

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