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Symposium: A monumental decision?

June 22, 2019 by admin Leave a Comment

Andrée Sophia Blumstein is the solicitor general of Tennessee, which joined 29 other states in an amicus brief in support of the constitutionality of the cross in The American Legion v. American Humanist Association.

States have long been in an unenviable position when it comes to deciding (1) whether to erect or maintain monuments with religious imagery on public property and (2) whether and how to defend establishment clause challenges to such monuments. The stakes are high; decisions like these can, of course, be politically costly, and a legally questionable decision will almost always result in expensive and exhausting litigation.

The difficulty comes from a Supreme Court establishment clause jurisprudence that has offered very little dependable guidance for the states. To one judge, it has been just “a hot mess,” and to another, in the same case, “a wilderness with misdirecting sign posts and tortuous paths.”

Much of the blame for this disarray in the law is now heaped on the establishment clause test articulated in Lemon v. Kurtzman in 1971. Indeed, Lemon has been accused of “stalking” the court’s establishment clause jurisprudence “like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.” The Lemon test asks (1) whether the challenged display or action has a secular purpose; (2) whether the principal or primary effect is one that neither advances nor inhibits religion; and (3) whether the display or action fosters an excessive entanglement with religion. That test has been the very opposite of the panacea it was intended to be. And because Lemon turned out to be unworkable in many cases, motley other tests have been rolled out in addition to, or instead of Lemon — with remarkable inconsistency in application and result.

In yesterday’s “Peace Cross” decision, the Supreme Court grappled yet again with the bedeviling questions provoked by public monuments with religious associations. There was some hope that the decision might deliver us from the wilderness — or at least usher Lemon to its final resting place.

The Peace Cross is a 40-foot tall monument erected on private land 94 years ago by the Bladensburg community in Maryland to honor 49 local soldiers who died in World War I in the cause of “liberty for the world.” The land on which the cross stands became publicly owned in 1961. The monument is, to be sure, in the form of a very large Latin cross, but it does not otherwise bear any religious message. Its adornments are a plaque dedicating the cross specifically to the fallen local veterans, the American Legion symbol, and the inscription “Valor, Endurance, Courage, and Devotion.” It stands in proximity to other, secular war memorials.

The American Humanist Association found the giant cross offensive and challenged it as a violation of the establishment clause of the First Amendment. The U.S. Court of Appeals for the 4th Circuit agreed that the monument failed the Lemon test; because it is in the form of a cross, is on public land and is maintained with public funds, it has “the primary effect” of endorsing Christianity and “excessively entangles” the government in religion. It had to go or be de-cruciformed.

The Supreme Court, in a 7-2 decision, reversed. The Peace Cross “does not violate the Establishment Clause.” It need not be removed or undergo amputation of its arms.

The plurality did not apply the Lemon test to reach this result and rejected the usefulness of that test for a particular category of establishment clause cases, i.e., challenges to established monuments, symbols and practices. But it did not abandon Lemon entirely. What remains of Lemon is not immediately clear, not even to members of the court. Justice Brett Kavanaugh is of the view that that “the Lemon test is not good law” and that the “Court no longer applies the old test articulated in Lemon.” Justice Neil Gorsuch, who would have dismissed for lack of standing, declares that Lemon was a “misadventure” and is now “shelved.” Justice Clarence Thomas, who would have overruled Lemon, believes that the plurality has only rejected Lemon’s relevance to claims like this one — although he did also join Gorsuch in his concurring opinion declaring the test to have been shelved. Thomas views coercion as the true touchstone of establishment clause inquiry. Justice Elena Kagan writes that the Lemon test is still viable and useful in some cases and that its focus on “purposes and effects is crucial in evaluating government action” with regard to monuments.

What the state and The American Legion were looking for from the Supreme Court was this “rule of decision”: “A government’s use of religious imagery in a way consistent with the Nation’s historical traditions will not run afoul of the Establishment Clause absent a showing that the government was exploiting the tradition to coerce religious belief or observance by nonadherents.”

What they got is much more nuanced, although history and tradition feature prominently. The plurality does not expressly formulate any rule, but here is what may be gleaned from the plurality opinion:

There is now a “strong presumption of constitutionality” for long-standing monuments, symbols, and practices with religious associations;
When challenged under the establishment clause, such venerable monuments, symbols and practices must be viewed and evaluated in historical context, giving consideration to factors such as (a) whether the monument or practice has taken on a secular meaning or carries a special significance aside from its religious association, (It “is surely relevant” if a monument commemorates particular individuals or has become a “symbol closely linked” to a secular event.), (b) whether the monument has become a prominent community landmark, (c) whether it has taken on historical significance, (d) whether there was discriminatory intent in its design or in the government’s decision to maintain it, and, (e) at bottom, whether the monument, symbol or practice reflects “respect and tolerance for differing views, an honest endeavor to achieve inclusivity and nondiscrimination, and a recognition of the important role that religion plays in the lives of many Americans”;
Retaining established, religiously expressive monuments, symbols and practices is “quite different from erecting new ones,” making it clear that the holding is limited to long-standing monuments, symbols and practices and that the presumption of constitutionality does not necessarily attach to new monuments; and, significantly
Destroying or defacing a monument with religious imagery that has long stood undisturbed would itself be an act of government hostility towards religion — an act inconsistent with the First Amendment ideals of neutrality, tolerance and respect.

This is a lot. But it will not deliver us from the wilderness.

State and local governments will not have it any easier in deciding whether to erect new monuments or allow new practices, since the court expressly distinguished those issues from the one it had before it. Nor will it be easier to decide whether to maintain existing monuments or practices and whether and how to defend them against establishment clause challenges. Even with the court’s “look-to-history-and-tradition” guiding principles and its deeply-considered analysis, states are left to deal with old uncertainties — and new questions. Who knows, for example, how much time is required to imbue a given monument or particular practice with historical meaning? What does it take to be able to say that a religious symbol has become “closely linked” to a secular event or that a religious practice “reflects” respect and tolerance for differing views?

Then too, Kavanaugh has given the respondents and other objectors rather detailed directions to a different playing field — the political arena — where the states may be faced with another set of uncertainties. He wrote separately, especially to “emphasize” that, despite the court’s Peace Cross ruling, the respondents and others objecting to monuments with religious association are not without recourse. Because, according to Kavanaugh, the court’s ruling allows the state to maintain such monuments on public land, but does not require the state to do so, Kavanaugh advises that the respondents could ask the state legislature to pass a law requiring the removal of the Peace Cross or the transfer of the land to private parties. Or they may ask the state executive branch to exercise its authority, if any, to remove an offending monument. Or they may petition the state court to construe the state’s constitution to require removal of the monument. And if that petition is unsuccessful, Kavanaugh points out, the people of the state can always amend the state constitution.

But it does seem that at least one concrete message has been delivered. “A government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine” may be deemed to be “aggressively hostile to religion” — which the establishment clause forbids, just as it forbids favoring religion. And “a campaign to obliterate items with religious association may evidence hostility to religion, even if those religious associations are no longer in the forefront.” Thus, states and their attorneys are now on notice to think long and hard before they remove a long-standing monument or symbol or put an end to a long-standing practice, because, “[a]s our society becomes more and more religiously diverse, a community may preserve such monuments, symbols and practices for the sake of their historical significance or their place in a common cultural heritage.”

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Symposium: Decision does not support new Christian-only monuments

June 22, 2019 by admin Leave a Comment

Holly Hollman is general counsel for the Baptist Joint Committee for Religious Liberty, which submitted an amicus brief in support of the respondents in The American Legion v. American Humanist Association.

When the U.S. Supreme Court granted certiorari in the Bladensburg cross case, many church-state separationists feared a sweeping decision that would fundamentally alter the court’s religious liberty law in harmful ways. The Baptist Joint Committee for Religious Liberty (BJC) was particularly concerned about arguments that would desacralize the pre-eminent symbol of Christianity in order to justify its display on government land. In a brief written by church-state scholar Douglas Laycock and joined by Christian and Jewish organizations, BJC urged the court to reject the radical arguments of the government and its allies. Simply put, “The cross is not a secular symbol, and neither the Commission nor the Court can make it so.”

After briefing and oral argument, it seemed the court might take a narrower path — one that would retain this particular decades-old cross without clearing a constitutional path for similar government monuments today. That is exactly what the court did in a splintered 7-2 decision that reflects sharp divisions on the court about the history and scope of the religion clauses. The court ruled that this particular cross can remain in place on government property. Importantly for our pluralistic society and the promise of equality without regard to religion, the decision does not support the constitutionality of Christian-only monuments sponsored by government today.

Avoiding religious divisiveness has long been a concern of the First Amendment, which prohibits any law “respecting an establishment of religion” and protects the free exercise of religion. These religious-liberty provisions are credited for keeping the government itself from advancing religion, as well as for preventing the government from undue interference or involvement in religious matters. In general, they protect religious liberty by keeping government out of religion, at least for the most part.

But the Supreme Court is often deeply divided on the meaning and application of religious-liberty law, as this decision illustrates. The separation of the institutions of religion and government, which encapsulates our constitutional design, harkens to experience from the founding era, including the mistreatment of Baptists and other religious dissenters. It has provided religious freedom often envied by those in other countries. But in public debates, separation is also routinely denigrated as hostility toward religion, particularly by the Christian majority that in many cases has taken its freedom and privilege for granted. Justices have often noted the difficulty in striking the right balance and avoiding public misperceptions.

The Supreme Court’s establishment clause jurisprudence is also famously complex. The court applies a variety of tests to different types of cases. The best known is the three-part Lemon test, which has been the target of critics on and off the court. That criticism is now catalogued in the court’s opinion, an opinion that thankfully does not disregard the relevance of government purpose and effects in deciding the constitutionality of a government-sponsored religious display.

Instead, the majority decision, written by Justice Samuel Alito, relies heavily on the longstanding nature of the memorial to uphold its constitutionality. Alito emphasized the facts of this particular memorial that warranted a finding of constitutionality when weighed against the divisiveness of removal. The memorial was dedicated more than 90 years ago and remained unchallenged for decades. The memorial’s design stemmed from the context of World War I. It was dedicated to a particular group of individual soldiers from the area (at least originally); its history lacked proof of explicit intent to disrespect diversity and divide citizens; and its longstanding presence made it a recognizable community landmark valuable to the community’s identity.

Under these circumstances, the majority found that removing the cross would not appear neutral toward religion, but instead would appear to evince hostility and threaten divisiveness that the religion clauses are meant to avoid, especially to the local community.

While the decision maintains a massive Christian symbol on government land, two explicit threats were avoided. First, the court rejected arguments to abandon all concern for neutrality among competing faiths by limiting its holding to the past. Second, the court avoided relying on false claims that the cross has an objective and secular meaning as a universal symbol for sacrifice.

It is foreseeable that advocates who favor government-sponsored religion will use the court’s decision upholding the 90-year old Bladensburg cross to reach for greater changes in the law. They will confuse the role of the facts in this case with the proper role of history in establishment clause jurisprudence to continue to argue for a “history and tradition” test. The decision, however, does not clear a path for similar monuments in the future. The majority opinion states: “Retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones.”

Justice Ruth Bader Ginsburg filed a powerful dissent, joined by Justice Sonia Sotomayor, from which she read a portion from the bench. By documenting the massive nature and undisputed prominence of the cross in a busy intersection, she countered any notion that this particular memorial can be seen as having only some incidental religious significance. Neither its context nor its symbolism is analogous to cases involving the Ten Commandments. She aptly described the majority’s decision as eroding the court’s commitment to neutrality, at least with regard to longstanding monuments, symbols and practices that now appear to enjoy a presumption of constitutionality.

The dissent reiterates and expands upon what the majority acknowledges: The cross is a Christian symbol and has been since at least the fourth century. Citing from the BJC brief, Ginsburg described the specific and exclusive meaning of the cross: “The cross is the central symbol of Christianity, invoking the central theological claim of Christianity: that the son of God died on the cross, that he rose from the dead, and that his death and resurrection offer the possibility of eternal life.” Because it symbolizes these beliefs, the cross is a common marker for Christians and not for those of other faiths.

Ginsburg’s dissent explains that a starkly religious message like that symbolized by the Bladensburg cross is not diminished because it dates to World War I, when crosses were common grave markers for U.S. soldiers overseas, noting that the graves of Jewish soldiers were marked with the Star of David. Citing history and precedence, she explains the essential role of government neutrality in protecting individual religious liberty without watering down religious messages.

Honoring veterans does not require altering our country’s commitment to religious liberty, which demands government neutrality among different religious traditions. Thousands of war monuments demonstrate that. Regardless of how this case will be used beyond the specific contexts of religious displays, the majority opinion is commendable for clarifying the important distinction between religious expression that reflects an aspect of an individual’s chosen faith and a government effort to sponsor a religion-specific monument to honor those who would not choose it.

While it is difficult to reconcile the promise of religious liberty for all while upholding a massive Latin cross on government land, the court’s narrow opinion should limit the potential damage of its ruling. The court was right to avoid adopting any of the petitioners’ secular rationalizations for the cross and their poorly articulated tests that would have given carte blanche to erect new crosses.

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Symposium: American Legion lays the groundwork for the downfall of Lemon

June 22, 2019 by admin Leave a Comment

Travis Weber is Vice President for Policy and Director of the Center for Religious Liberty at Family Research Council, which filed an amicus brief in support of the constitutionality of the cross in The American Legion v. American Humanist Association.

The Supreme Court’s decision in American Legion v. American Humanist Association no doubt broadly pleased conservative constitutionalists who thought the Peace Cross should remain standing under the First Amendment. It likely irked those, such as the challengers to the constitutionality of this memorial, who believe the establishment clause should eliminate much religious expression and symbolism (often Christian) from the public square. The real significance of the decision and many opinions in the case, however, is that they put Lemon v. Kurtzman on the ropes and lay the groundwork for its test to be felled in the future – perhaps sooner than we think.

To begin with, no justice on the court seriously engaged Lemon in this case. The court’s opinion, authored by Justice Samuel Alito, refused to apply it, and the dissenters never tried to attack this memorial under the test either.

The only justice who provided even a tepid defense of Lemon was Justice Elena Kagan, who drafted a concurrence explaining why she refused to join that portion of Alito’s opinion that casts serious doubt on Lemon. That portion, Section II-A, reads in part: “For at least four reasons, the Lemon test presents particularly daunting problems in cases, including the one now before us, that involve the use, for ceremonial, celebratory, or commemorative purposes, of words or symbols with religious associations. Together, these considerations counsel against efforts to evaluate such cases under Lemon and toward application of a presumption of constitutionality for longstanding monuments, symbols, and practices.” Later, Section II-D, which Kagan also refused to join, clearly laid out a historical test for this type of establishment clause case, building on Marsh v. Chambers and Town of Greece v. Galloway, and declaring: “Where categories of monuments, symbols, and practices with a longstanding history follow in that tradition [of the recognition of the important role of religion in the lives of Americans] they are likewise constitutional.” Justice Brett Kavanaugh, who joined these portions of the opinion, was even harder on Lemon in his concurrence, noting how the test has simply not helped the Supreme Court, and thus should be discarded.

While Sections II-A and II-D of Alito’s opinion were only joined by Chief Justice John Roberts, Justice Stephen Breyer, and Kavanaugh, the refusal of Justices Neil Gorsuch and Clarence Thomas to join them was likely not due to disagreement with the outcome they would produce, but rather because they didn’t go far enough toward an originalist approach that would itself eliminate Lemon. Thus, six justices appear poised to discard Lemon entirely in favor of a historical test regarding certain religious practices and commemorations, if not something even stronger.

The portions of Alito’s opinion that Kagan did join acknowledged the religious significance of certain monuments, public displays, and even city names as perfectly consistent with the establishment clause, and warned against scrubbing them: “A government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine will strike many as aggressively hostile to religion.” The court even referred to the challengers’ arguments urging that result as “disparaging” to the religious expression in this case.

As Family Research Council noted in our amicus brief, religion is naturally manifested by a religious people, an understanding implicit in Alito’s opinion: “When faith was important to the person whose life is commemorated, it is natural to include a symbolic reference to faith in the design of the memorial.” Requiring the removal of such religious markers “would not be viewed by many as a neutral act.” As the court noted through examples of a Native American veterans’ memorial and the displays of different faiths in the U.S. Capitol’s Statuary Hall, a test permitting more robust religious expression in the public square actually benefits all faiths, not just Christianity – a reality oft-overlooked by establishment clause commentators. Given what Gorsuch and Thomas have articulated about the First Amendment here and elsewhere, seven members of the court would seem to be in agreement with the idea that religion will understandably manifest in the life of a community.

Such community manifestations of religion were highlighted by the court when discussing the propensity for “religiously expressive monuments, symbols, and practices [to] become embedded features of a community’s landscape and identity.” Eliminating such a manifestation “may no longer appear neutral, especially to the local community for which it has taken on particular meaning.”

As Gorsuch noted in concurrence, offended-observer standing (which in his view should be eliminated) allows one or two aggrieved and offended observers to shut down an entire community’s corporate expression of religion. This is currently taking place in local communities around the country, where entities like the American Humanist Association bring suit – just like they did in this case – under rules of standing that allow them to get into court and claim that a community’s city seal, motto, placement of monuments, etc. somehow violate the establishment clause. The only thing this often serves to accomplish is to aggravate local communities which should be left alone to sort these matters out, exacerbating the religious tension the court specifically noted that the establishment clause must be construed to avoid. Doing away with offended-observer standing, which would do away with these cases, would ease social tensions in addition to preserving community manifestations of religion perfectly consistent with the establishment clause.

In their concurring opinions, both Kavanaugh and Gorsuch observed that such tensions can be resolved in the legislatures and don’t need to be resolved in the courts, with the latter remarking: “In a large and diverse country, offense can be easily found. Really, most every governmental action probably offends somebody. No doubt, too, that offense can be sincere, sometimes well taken, even wise. But recourse for disagreement and offense does not lie in federal litigation. Instead, in a society that holds among its most cherished ambitions mutual respect, tolerance, self-rule, and democratic responsibility, an ‘offended viewer’ may ‘avert his eyes,’ … or pursue a political solution.”

Indeed, religious tensions might be lowered by allowing more people to have a stake in these matters by keeping decisions on religious symbols out of the courts and in the people’s hands through their elected officials.

As Alito noted, when practices follow “respect and tolerance for differing views, an honest endeavor to achieve inclusivity and nondiscrimination, and a recognition of the important role that religion plays in the lives of many Americans … they are … constitutional.”

By ridding itself and the lower courts of the confusion and stifling effect on religion brought on by Lemon, the Supreme Court can help reach this worthy aspiration and bring clarity and a breath of fresh air for religious expression – for those of all faiths – to the public square.

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Opinion analysis: Felons-in-possession must know they are felons

June 22, 2019 by admin Leave a Comment

In order to convict an unauthorized immigrant for gun possession, a federal prosecutor must prove not only that the defendant knew he possessed the gun but also that he knew he was out of immigration status, the Supreme Court ruled 7-2 on Friday in Rehaif v. United States. The decision will almost certainly lead to collateral attacks on convictions under a much more commonly invoked provision criminalizing gun possession by convicted felons.

Justice Stephen Breyer’s majority opinion stated that the federal law in question, 18 U.S.C. § 922(g), criminalizes possession of firearms by a person falling into any of nine enumerated status categories, one of which is aliens unlawfully in the United States, and another of which is anyone convicted of an offense punishable by at least a year in prison. The majority explicitly held that the government “must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.”

In a vehement dissent, Justice Samuel Alito, joined by Justice Clarence Thomas, protested that the decision will lead to a flood of challenges by people currently incarcerated under Section 922(g), most of them in the felon-in-possession category. Noting that 6,032 people were convicted in fiscal year 2017 alone under Section 922(g), with an average sentence of 64 months, Alito warned of a coming flood of litigation. Those whose direct appeals are not yet exhausted will “likely be entitled to a new trial,” said Alito, and others will move to have their convictions vacated under 28 U.S.C. § 2255.

Alito specifically outlined the group of prisoners who could file under Section 2255. “[T]hose within the statute of limitations will be entitled to relief if they can show that they are actually innocent of violating Section 922(g), which will be the case if they did not know that they fell into one of the categories of persons to whom the offense applies,” he wrote. “If a prisoner asserts that he lacked that knowledge and therefore was actually innocent, the district courts, in a great many cases, may be required to hold a hearing … and make a credibility determination as to the prisoner’s subjective mental state at the time of the crime.”

Petitioner Hamid Rehaif will be among those who get a hearing on whether he actually knew he was out of immigration status. He had come to the United States on a student visa to study at a university in Florida, but he was academically dismissed. In informing him about his dismissal, the university’s email notified him that his immigration status would be terminated if he did not transfer to another school or leave the United States, neither of which he did. Instead, he stayed in Florida. During that stay, he went to a firing range, purchased ammunition and fired weapons. Hotel staff tipped off the FBI that Rehaif was engaging in suspicious behavior.

At the ensuing trial, the district court instructed the jury that it need not find that Rehaif knew he was out of immigration status, and the jury convicted. The U.S. Court of Appeals for the 11th Circuit affirmed, noting substantial agreement among its fellow circuits that the term “knowingly” in 18 U.S.C. § 924(a)(2) applies to possession of the weapon, but not to the status category of the possessor.

Breyer’s majority opinion rejected that position. “In determining Congress’ intent, we start from a longstanding presumption, traceable to the common law, that Congress intends to require a defendant to possess a culpable mental state regarding ‘each of the statutory elements that criminalize otherwise innocent conduct,’” wrote Breyer. “Here we can find no convincing reason to depart from the ordinary presumption in favor of scienter [requirement of guilty mind].”

The phrase “otherwise innocent conduct” strongly echoed concerns voiced by Justices Neil Gorsuch and Brett Kavanaugh at oral argument. They had noted that possession of a gun alone is not blameworthy and therefore that one’s membership in a prohibited status category is all that stands between innocent and criminal conduct under Section 922(g). If the status divides innocent from criminal conduct, then the defendant should have to know of that status in order to be convicted, they suggested. Along those lines, the majority opinion acknowledged that the statute’s “harsh” maximum punishment of 10 years played a role in its decision.

Now that the court has decided that knowledge of status is required for a conviction under Section 922(g), prosecutors must think about what kinds of tangible evidence can be used to show that state of mind, and those looking to challenge their convictions must scour their records to find some evidence casting doubt on the existence of such knowledge. These tasks are complicated greatly by the fact that there are nine different status categories. While reminding prosecutors that they may prove state of mind through circumstantial evidence, the majority refused to get too specific, saying, “We express no view … about what precisely the Government must prove to establish a defendant’s knowledge of status in respect to other Section 922(g) provisions not at issue here.”

However, the majority opinion did mention two hypothetical fact scenarios in which there could be reasonable doubt that the defendant knew his status. Echoing a remark by Justice Sonia Sotomayor at argument, the majority pointed out that a failure to require knowledge would criminalize firearm possession by “an alien who was brought to the United States unlawfully as a small child and was therefore unaware of his unlawful status.” The court made the same observation about “a person who was convicted of a prior crime but sentenced only to probation, who does not know that the crime is ‘punishable by imprisonment for a term exceeding one year.’” This would seem a particularly important scenario, given that the vast majority of convictions occur by plea bargain, where the lawyer, not the defendant, does the negotiating. Moreover, the average defendant’s curiosity only extends to the prosecutor’s actual offer, not to the theoretical maximum punishment that the prosecutor could have sought under the statute.

The dissent expressed concerns that the majority’s decision will lead gun owners to keep themselves in the dark about their membership in Section 922(g) status categories. “Consider a variation on the facts of the present case,” wrote Alito. “An alien admitted on a student visa does little if any work in his courses. When his grades are sent to him at the end of the spring semester, he deliberately declines to look at them. Over the summer, he receives correspondence from the college, but he refuses to open any of it. He has good reason to know that he has probably flunked out and that, as a result, his visa is no longer good. But he doesn’t actually know that he is not still a student.”

The majority did not address this hypothetical, but it seems extremely unlikely that such a gambit would succeed. Model Penal Code Section 2.02(7) addresses the very situation contemplated by the dissent, sometimes referred to as the “ostrich defense” — sticking one’s head in the sand and then pleading ignorance of incriminating facts. Under this provision, because the hypothetical student was aware of a “high probability” that he was out of immigration status, his refusal to confirm that fact will not prevent a conclusion that he knew it.

Although nothing in the Model Penal Code is legally binding on its own accord, it seems unlikely that the court would reject Section 2.02(7). After all, the majority openly relied on Section 2.02(4) to support its conclusion that the term “knowingly” should apply to all nonjurisdictional elements of the offense. Perhaps more importantly, if the ostrich defense were permitted in Section 922(g) cases, it would be hard to explain why that gambit should not be permitted to defeat the knowledge requirements in hundreds or thousands of other criminal statutes nationwide.

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A “view” from the courtroom: “We break no new legal ground”

June 21, 2019 by admin Leave a Comment

It’s a blustery day in Washington as the court prepares for opinions. I’m tempted to call it a “rare” Friday session, but the justices issued opinions on this equivalent Friday last term, and they did the same in 2015 with the momentous same-sex marriage decision in Obergefell v. Hodges.

In the cafeteria this morning, Jimmy Hoover, the Supreme Court reporter for Law360, has spotted Justice Brett Kavanaugh’s father, Edward Kavanaugh, who will join Kavanaugh’s mother, Martha (the original Judge Kavanaugh in the family) in the VIP section of the courtroom. Perhaps we have an opinion coming from the first-year justice.

Justice Kavanaugh announces opinion in Flowers v. Mississippi (Art Lien)

A couple of blocks away, Gabe Roth of Fix the Court, an organization that has been hammering for more Supreme Court transparency, and other witnesses are testifying at a House Judiciary Committee subcommittee hearing on promoting ethics, accountability and transparency in the federal judiciary. Roth sees something suspect about the court’s decision to issue opinions today.

“I’m testifying before Congress tmrw. so of course there will be opinion announcements,” is the caption on his Thursday night email to Supreme Court reporters. He suggests that the reporters could cover both the hearing and today’s opinions by pointing out that it is just a nine-minute walk from the Rayburn House Office Building, where the hearing will be, to the Supreme Court building. Roth has perhaps underestimated how much Supreme Court reporters are creatures of habit who prefer to get settled at the court well before the opinions come down.

At 9:45 a.m., in the Supreme Court chamber, the public gallery is barely half full, while the bar section is wide open, with just two seats filled. But the public section will nearly fill up with some further arrivals, and the bar section will rise to six members, equaling the number of representatives from the solicitor general’s office.

Taking a seat in the front row of the bar is Jeffrey Green of Sidley Austin, a criminal-defense specialist who participated in at least one case pending decision.

The court takes the bench and Chief Justice John Roberts pauses to let everyone settle in their seats before announcing that the opinion in Flowers v. Mississippi “is delivered by Justice Kavanaugh.” It’s a slightly odd present-tense construction, but, hey, he has to do this about 70 times per term.

This capital case from Mississippi was the subject of an intense oral argument in March. Curtis Flowers, the petitioner, is accused of murdering four people at the Tardy Furniture store in small-town Winona, Miss. Flowers has been tried six times, each by the same lead prosecutor.

Flowers is black, and questions of whether black potential jurors were improperly struck by the prosecution with its peremptory challenges surround several of the trials, including the sixth one, which is the one specifically before the justices. In that trial, Flowers was convicted, and the Mississippi Supreme Court upheld his conviction, turning away his claim under Batson v. Kentucky that the state’s exercise of peremptory challenges to exclude five out of six black prospective jurors was discriminatory.

At the oral argument, Kavanaugh observed that “we can’t take the history out of the case.”

The argument also offered a rare set of questions from Justice Clarence Thomas, who elicited from the lawyer for Flowers that the defendant’s trial counsel had exercised peremptory challenges against white prospective jurors.

Today, Kavanaugh explains the procedural history, describes small town Winona, and reminds everyone about an 1880 decision, Strauder v. West Virginia, which struck down that state’s statute excluding blacks from jury service.

“The court explained that the 14th Amendment required ‘that the law in the states shall be the same as for the black as for the white.’”

But Strauder did not solve the problem of racial exclusion from jury service, Kavanaugh adds, leading to the 1986 decision in Batson.

He announces that the state did violate Batson.

“The numbers speak loudly,” he says, with the state using peremptory challenges to strike 41 of 42 black prospective jurors in the six trials combined.

“We cannot ignore that history. We cannot take that history out of the case,” he says, echoing his observation from oral argument.

Kavanaugh goes into some factors of the sixth trial in greater detail, including that the state’s peremptory challenge of one black prospective juror in particular “was motivated in substantial part by discriminatory intent.”

“In reaching that conclusion, we break no new legal ground,” he says. “We simply enforce and reinforce our decision in Batson by applying it to the extraordinary facts of this case.”

The justices had struggled a bit at oral argument to find a broader principle in the case, but this seems to be an instance in which the court has settled for error correction.

Justice Samuel Alito has a concurring opinion, and Thomas has a dissent, joined in part by Justice Neil Gorsuch. Thomas does not deliver any of his sharp dissent from the bench.

Justice Sonia Sotomayor is up next with the opinion in North Carolina Department of Revenue v. Kaestner 1992 Family Trust.

“This case is about the limits on a state’s power to tax a trust,” she says. The holding is that the presence of in-state beneficiaries alone does not empower a state to tax trust income that has not been distributed to the beneficiaries when they have no right to demand the income and are uncertain to receive it.

The opinion is unanimous, with Alito filing a concurring opinion joined by Roberts and Gorsuch.

Justice Stephen Breyer has the opinion in Rehaif v. United States, which holds that in a prosecution under a federal statute that prohibits certain categories of people from possessing firearms, the government must prove that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category.

Breyer points out that “the distinction matters in this case,” because a trial court instructed a jury that it did not need to find that the defendant, Hamid Rehaif, knew he was an alien in this country unlawfully.

“We hold that the government must prove both knowledge of conduct and knowledge of status,” Breyer says. He cites Blackstone and the concept of proof of scienter.

“Take the example of an immigrant who was brought to this country as a small child,” Breyer says. “Would Congress have intended to send such a person to prison for possessing a firearm even though she did not know that she was here unlawfully? We presume that Congress does not intend to make criminals out of such persons, who lack knowledge of the facts that would make their conduct wrongful.”

Although the legal issues and posture are very different, Breyer’s choice of example brings to mind the long-pending cert petitions concerning the status of the Deferred Action for Childhood Arrivals program.

Breyer notes that Alito has filled a dissent joined by Thomas. Jeffrey Green was on the merits brief for Rehaif in this case, and he has a look of satisfaction at the outcome today.

The chief justice announces that he has the opinion in Knick v. Township of Scott. Pennsylvania. This is the case that was argued during the first week of the term, before Kavanaugh was confirmed. In November, it was restored to the calendar for reargument, which occurred in January.

The conventional wisdom was that the court was deadlocked and needed Kavanaugh’s vote to break the tie.

Roberts explains that the case involves petitioner Rose Mary Knick’s 90-acre property in Scott Township, which includes a grazing area for horses and other animals and a small graveyard where ancestors of Knick’s neighbors “are allegedly buried.”

The phrasing adds an air of mystery to the case, and the record reflects that Knick has disputed whether there is any burial ground on her property. (We long thought that Oct. 31, a day the court held arguments last fall, would have been the more appropriate time for the initial argument in the case.)

Knick challenged a county ordinance that requires all cemeteries to be kept open and accessible to the public during daylight hours as a taking that violated the Fifth Amendment’s takings clause.

The high court took up the case to reconsider its 1985 decision in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson County. That case held that a property owner whose property has been taken by a local government has not suffered a Fifth Amendment violation — and cannot bring a federal takings claim in federal court — until a state court has denied his claim for just compensation under state law.

Roberts says Knick is caught in a Catch-22 between Williamson County and a later decision, 2005’s San Remo Hotel L.P. v. City and County of San Francisco, which held that a state court’s resolution of a claim for just compensation under state law will generally preclude any federal suit.

“That should tip us off that something is wrong,” Roberts says. “We decide today that the something that is wrong is Williamson County.”

He says the balance of considerations over stare decisis “tips in favor of overruling” the state-litigation requirement of Williamson County. He does not address the sharp words of the dissent about yet another precedent being overruled, but concludes by stating that “a federal court, no less than a state court, is competent” to hear Knick’s takings claim.

He announces that Justice Elena Kagan has the dissent, joined by Justices Ruth Bader Ginsburg, Breyer and Sotomayor. Kagan does not read from her dissent. And it is now clear that Kavanaugh indeed had the decisive vote in this case.

The justices rise to depart the bench, and there is not much suspense this time in Marshal Pamela Talkin’s announcement that the court will return on Monday, because Monday is a regularly scheduled day for opinions.

There are 12 opinions left, and to paraphrase Roth, “of course there will be opinion announcements” on one or more additional days. Most of those are expected to break some legal ground.

The post A “view” from the courtroom: “We break no new legal ground” appeared first on SCOTUSblog.

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Opinion analysis: Justices reverse death sentence for Mississippi inmate

June 21, 2019 by admin Leave a Comment

In 2010, Curtis Flowers stood trial for the 1996 murders of four people in a Mississippi furniture store. The local district attorney, Doug Evans, who is white, struck five of the six potential black jurors in the jury pool, resulting in a jury with just one black member. Flowers was convicted and sentenced to death. Today the Supreme Court threw out Flowers’ conviction, with seven justices agreeing that the jury selection in his case violated the Constitution.

The court’s opinion, written by Justice Brett Kavanaugh and joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito, Sonia Sotomayor and Elena Kagan, depicted Flowers’ case as one that broke “no new legal ground.” Instead, the court characterized the ruling as a fairly straightforward application of the Supreme Court’s 1986 ruling in Batson v. Kentucky, holding that prosecutors cannot discriminate based on race when using their peremptory strikes, which allow them to remove jurors without providing a reason, to what they described as the “extraordinary facts” of Flowers’ case.

Justice Kavanaugh with opinion in Flowers v. Mississippi (Art Lien)

Kavanaugh’s opinion cited four facts that, when considered together, warrant reversal of Flowers’ conviction. First, Kavanaugh looked back at Flowers’ first four trials and observed that the “numbers speak loudly”: In the first four trials, Evans “tried to strike all 36” black prospective jurors. “The State’s relentless, determined effort,” Kavanaugh concluded, “to rid the jury of black individuals strongly suggests that the State wanted to try Flowers before a jury with as few black jurors as possible, and ideally before an all-white jury.” Such a history, Kavanaugh stressed, cannot be ignored when considering Evans’ intent going into Flowers’ sixth trial.

At Flowers’ sixth trial, Kavanaugh continued, Evans struck five of the six prospective black jurors. Kavanaugh acknowledged that Evans allowed one black juror to sit on Flowers’ jury, but he noted that in a 2005 case the Supreme Court suggested that a Texas prosecutor might have accepted a black juror to camouflage a general opposition to seating black jurors. “The overall record of this case,” Kavanaugh wrote, “suggests that the same tactic may have been employed here,” creating more evidence that Evans intended to discriminate against black jurors.

Before striking the five prospective black jurors, the prosecution asked them an average of 29 questions, compared with just one question for each of the white jurors who was seated on the jury. “One can slice and dice the statistics and come up with all sorts of ways to compare” the prosecution’s questioning of black and white jurors, Kavanaugh acknowledged. “But any meaningful comparison yields the same basic assessment: The State spent far more time questioning the black prospective jurors than the accepted white jurors.” Kavanaugh conceded that prosecutors can ask prospective jurors questions to “investigate the relationships of jurors to the victims, potential witnesses, and the like.” But the Supreme Court’s cases have explained that prosecutors might ask a lot of questions to find answers that will give them excuses that do not rely on race to strike black jurors; if they don’t ask white jurors the same questions, prosecutors can “avoid being accused of treating black and white jurors differently.” So although asking black jurors more questions than white jurors does not, standing alone, violate the Constitution, it can “supply a clue that the prosecutor may have been seeking to paper the record and disguise a discriminatory intent.”

Along these lines, Kavanaugh wrote, the decision to strike Carolyn Wright, a prospective black juror, was largely motivated by an intent to discriminate. The prosecution said it struck Wright because “she knew several defense witnesses and worked at Wal-Mart where Flowers’ father also worked.” But, Kavanaugh pointed out, prosecutors did not ask the same kinds of detailed follow-up questions of three prospective white jurors with connections to individuals involved in the case. At least in this case, in light of the “whole picture,” the failure to do so “requires skepticism”: “We cannot just look away,” Kavanaugh emphasized.

Alito filed a concurring opinion in which he emphasized that Flowers’ case was “highly unusual.” “Indeed,” he suggested, “it is likely one of a kind.” The murders giving rise to the case took place in a small town where both at least one of the victims and the defendant were well known, and Flowers was repeatedly tried by the same prosecutor in proceedings marked by racial discrimination and misconduct. By the time Flowers’ sixth trial rolled around, Alito observed, it would be difficult for the trial judge to determine why the prosecutor was striking a potential juror.

In a different case, Alito contended, particularly one in a larger town, a prosecutor’s decision to strike a juror would likely pass muster. “But this is not an ordinary case,” Alito continued, “and the jury selection process cannot be analyzed as if it were.” As he had at the oral argument, Alito indicated that, in light of the history of Flowers’ case, it probably would have been better for another prosecutor to have tried Flowers for the sixth time. “Were it not for the unique combinations of circumstances present here,” Alito wrote, “I would have no trouble affirming the decision of the Supreme Court of Mississippi.” “But viewing the totality of the circumstances present here, I agree with the Court that” Flowers’ death sentence “cannot stand.”

Justice Clarence Thomas dissented, in an opinion that was joined in part by Justice Neil Gorsuch. Thomas argued that the Supreme Court should never have agreed to review Flowers’ case in the first place. He alleged that the case didn’t meet the justices’ traditional criteria for granting review, and he seemed to suggest that the justices might have taken up the case because it hailed from the south – which, quoting an opinion from Justice Antonin Scalia, he described as a “familiar object[] of the Court’s scorn” – or because of the media attention that the case had garnered. But in any event, Thomas continued, prosecutors had good reasons – that had nothing to do with race – for striking the five black jurors at Flowers’ final trial. And to the extent that the court relied on the prosecution’s conduct at Flowers’ earlier trials, Thomas added, that story “might make for an entertaining melodrama, but it has no basis in the record.”

In the part of his dissent that Gorsuch did not join, Thomas criticized the court’s decision in Batson as “suspect when it was announced” and something about which he is “even less confident now.” Thomas reasoned that Batson gives a “windfall to a convicted criminal” who has not actually been injured – because he was not the juror who was the victim of discrimination – and therefore should not be able to challenge the juror’s exclusion. More broadly, Thomas complained, the system of peremptory challenges rests on the idea that a lawyer should be able to remove a potential juror from the jury pool, without providing an explanation, based on her gut feeling that the potential juror would not be sympathetic to her client’s case. By focusing on an individual juror’s rights, and requiring lawyers to provide a reason for their decision to strike a juror, Batson “is wholly contrary to the rationale underlying peremptory challenges,” Thomas concluded.

Thomas finished with blistering words for his colleagues in the majority, writing that if the court’s “opinion today has a redeeming quality, it is this: The State is perfectly free to convict Curtis Flowers again. Otherwise the opinion distorts our legal standards, ignores the record, and reflects utter disrespect for the careful analysis of the Mississippi courts. Any competent prosecutor would have exercised the same strikes as the State did in this trial.” And, Thomas added, “although the Court’s opinion might boost its self-esteem, it also needlessly prolongs the suffering of four victims’ families.”

In a statement issued shortly after the court’s opinion was released, Sheri Lynn Johnson – the Cornell law professor who argued on Flowers’ behalf at the Supreme Court – applauded the ruling and urged Evans not to try Flowers again. She described the fact that Flowers has already been tried six times and spent over 20 years on death row as a “travesty” and contended that a “seventh trial would be unprecedented, and completely unwarranted given both the flimsiness of the evidence against him and the long trail of misconduct that has kept him incarcerated all these years.”

Mississippi Attorney General Jim Hood also issued a statement that left open the possibility that Evans could try Flowers again. Hood indicated that when the case returns to Mississippi, “it will be the duty of the district attorney” – Evans – “to re-evaluate the case. If the decision is to retry the case,” Hood said, he is “confident the Court’s guidance will be followed.”

This post was originally published at Howe on the Court.

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