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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.

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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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Symposium: More light than heat

June 21, 2019 by admin Leave a Comment

Michael Stokes Paulsen is Distinguished University Chair and Professor at the University of St. Thomas School of Law.

Establishment clause cases involving religious symbols tend to generate more rhetorical heat than intellectual light. Passions and prejudices run high; clarity and principle tend to run low. The Supreme Court’s decisions have turned, embarrassingly, on the proximity of plastic elves and jumbo candy canes to traditional Christmas nativity scene displays. (Lynch v. Donnelly from 1984 is the classic illustration.) Others have involved incomprehensibly fractured outcomes in which just two justices agreed with the ultimate result and everybody else thought this the one outcome that could not possibly be right. (1989’s County of Allegheny v. American Civil Liberties Union and the split doubleheader of Ten Commandments cases, McCreary County v. ACLU and Van Orden v. Perry, decided the same day in 2005, both fit this description.) The result has been a combination of incoherence and occasional bitter comedy.

Not so with the Supreme Court’s decision in The American Legion v. American Humanist Association. The court upheld the constitutionality of the Bladensburg Peace Cross, a prominent Latin cross erected as a World War I war memorial by private groups in 1925, and maintained on public land in Maryland. This decision generated more light than heat. It produced more reasonable, reasoned analysis – and less vitriol – than practically any of the other of the court’s recent religious-symbols cases. The careful majority opinion by Justice Samuel Alito made an almost astonishing amount of sense, wrestling thoughtfully with the issues and producing a coherent, unifying rationale for a five-vote majority opinion comprising a diverse ideological center of the court (Alito, plus Chief Justice John Roberts and Justices Stephen Breyer, Brett Kavanaugh and Elena Kagan).

What Alito wrote for the Supreme Court was limited and sensible and, to its great credit, did not in any way depend upon or imply a denial of the intrinsic religious significance of the Latin cross as the central symbol of Christianity. “The cross is undoubtedly a Christian symbol,” the court affirms, “but that should not blind us to everything else that the Bladensburg Cross has come to represent.” Alito’s reasoning was straightforward and practical: Attributing a single purpose or message to a monument, symbol or practice is difficult, especially when a memorial or practice was established long ago. Motives and purposes vary, change over time, dissipate, and are sometimes replaced in whole or in part by other purposes. The messages associated with a monument or symbol thus tend to “multiply” over time. The meanings of a symbol also may change, or proliferate, over the years. Finally, the act of removing or mutilating a religiously expressive symbol – here, the plaintiffs had requested that the Bladensburg Peace Cross be either destroyed or its arms removed – would, in context, not be a neutral act, but one likely to be viewed as anti-religious hostility: “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.”

These considerations, Alito wrote, “show that retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones.” This is a sensible insight. The majority does not say that use of a religiously expressive symbol is constitutional only where it has already stood for a long time, or acquired a new meaning wholly apart from any religious significance. It says merely that the question is different – easier – when it involves the tearing down of a longstanding religious symbol rather than erecting or establishing a new one. This difference establishes some common ground of presumptive constitutionality.

Some of the concurring opinions argued, gently, over what the principles of the majority opinion might mean for other religious displays that lacked the same 90-year historical pedigree. (More on that presently.) But upholding the Bladensburg Cross under these criteria was easy. The cross had been a symbol closely linked to World War I memorials generally, and this display stood firmly in that tradition. As such monuments have “endured through the years,” they become “a familiar part of the physical and cultural landscape” whose dismantling would not be viewed as a neutral act, but evidence of “hostility to religion” even if the religious associations of such memorials “are no longer in the forefront.” Thus, “destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment.”

There was more to be said, of course. (This was an establishment clause case, after all.) And nearly everybody had something more to say: A plurality of four would have gone one step further (or simply been more explicit) in rejecting prior doctrine; there were five separate concurring opinions of various types, producing an overall majority of seven; and there was a predictable dissent by Justice Ruth Bader Ginsburg (joined by Justice Sonia Sotomayor). Significantly, nothing in the plurality or any of the concurrences impaired the clarity and unity of the majority opinion on the points covered. Rather, the various separate opinions served to reinforce and amplify the majority’s reasoning.

Alito, for a four-justice plurality – the majority minus Kagan – essentially repudiated the infamous “Lemon test” of 1971’s Lemon v. Kurtzman in the religious-symbols context and perhaps entirely. The Lemon test was simply incompatible with the approach of the majority opinion. That conclusion, when combined with the positions of Justices Clarence Thomas and Neil Gorsuch discussed below, would appear to mean that, finally, at long last, “Lemon is Dead” (as some have been prophesying or proclaiming for years).

Breyer, Kavanaugh and Kagan each offered brief concurring opinions, elaborating further views and expressing only the most mild intramural disagreement: Breyer (joined by Kagan) explained why he understood the majority opinion to leave open the constitutionality of a “newer memorial, erected under different circumstances.” Kavanaugh explained why he viewed the majority opinion as a “safe harbor” only, not a decision limited in principle to its facts – a position actually consistent with Breyer’s. Kavanaugh also emphasized that the Lemon test “is not good law and does not apply to Establishment Clauses cases” more broadly. Kagan explained her reluctance to sign on to an outright repudiation of Lemon, but agreed that it “does not solve every Establishment Clause question.” She praised Alito’s opinion even as to the parts she did not join.

Thomas concurred in the judgment only, reiterating his long-held idiosyncratic (but defensible) view that the establishment clause does not apply to the states. Even if it did, Thomas wrote, public religious symbols do not themselves coerce religious observance or other action and thus would not violate the establishment clause in any event. Thomas made five votes for interring Lemon’s “long-discredited test.”

Gorsuch, in an insightful opinion concurring in the judgment (joined by Thomas), found that the plaintiffs lacked standing to sue to challenge the constitutionality of the Bladensburg Peace Cross by virtue of being “offended observers.” If one thinks about it, this is simply a different way of saying that displays of religious symbols do not inflict any cognizable legal injury against which the establishment clause provides protection on the merits. Gorsuch drew this connection explicitly: It was a mistaken view of the establishment clause that had led to mistaken views of standing to raise an establishment clause challenge. “Lemon was a misadventure” that “left us only a mess,” he wrote, noting his agreement with the plurality that Lemon was “now shelved.” Count six votes nailing the lid to Lemon’s coffin.

Gorsuch’s Article III “standing” objection is a good one. Taken seriously, as it should be, it would have the salutary effect of disposing of nearly all of these types of cases at the threshold. That would avoid the questions left open by the majority opinion. That opinion settles most, if not all, questions of traditional or longstanding government use of religious symbols, displays, city names and ceremonial invocations – and that is itself a major and welcome achievement. But as Gorsuch noted, “it’s hard not to wonder: How old must a monument, symbol, or practice be to qualify for this new presumption [of constitutionality]?” Indeed. What about comparable religious symbols that lack the same historical pedigree as the Bladensburg Peace Cross? Gorsuch had it right: “what matters when it comes to assessing a monument, symbol, or practice isn’t its age, but its compliance with ageless principles.”

And in broadest terms, the correct principle is that the establishment clause is about protecting religious freedom – the freedom not to exercise religion. (It is the mirror image of the free exercise clause in this respect, not a contradictory principle.) The establishment clause is not about protecting against offense. The Supreme Court would do well to borrow a page from its free-speech decisions in this regard. Government invocation or maintenance of religious symbols is at root a form of government speech, and speech alone is generally not regarded as coercive of conduct. People can ignore messages they find offensive. The supposed offense of a message is not a basis for censoring it. As with Paul Robert Cohen’s jacket in 1971’s Cohen v. California, offended observers can avert their eyes or walk on. So too with displays of religious symbols: They do not present serious problems of religious freedom because they do not compel anyone to engage in religious exercise or expression.

Instead, they present questions of mainly of decorum, civic discourse, mutual respect and toleration – not constitutional law. The majority opinion in The American Legion v. American Humanist Association captured that sense perfectly: “The Religion Clauses of the Constitution aim to foster a society in which people of all beliefs can live together harmoniously, and the presence of the Bladensburg Cross on the land where it has stood for so many years is fully consistent with that aim.”

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Live blog of opinions

June 21, 2019 by admin Leave a Comment

We’re live-blogging as the Supreme Court releases opinions in argued cases. Join us. SCOTUSblog is sponsored by Casetext: A more intelligent way to search the law.

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A “view” from the courtroom: “Quite prolific in our writing”

June 21, 2019 by admin Leave a Comment

Art Lien, SCOTUSblog’s talented sketch artist, commutes to the court from Baltimore, and a traffic jam on the Capital Beltway this morning sent him to Google Maps for an alternate route, which just happened to take him past the Bladensburg Peace Cross, the memorial at the center of the pending case of The American Legion v. American Humanist Association. Lien tweeted a quick photograph as he approached the traffic circle where the cross stands. (Lien reports that traffic was stopped when he snapped the photo, but his fellow drivers may still be thankful he didn’t take out his ever-present sketch pad.)

Perhaps it was fate, perhaps just a coincidence, but Lien and others in the courtroom will soon hear much more about the fate of the cross.

As is typical of the first extra day for opinions, the public gallery is full, but the bar section is nearly empty. Solicitor General Noel Francisco is here, after missing Monday’s session, along with five or six members of his staff. No more than 10 seats in the rest of the bar section are occupied, though one lawyer present today is Neal Katyal, the former acting U.S. solicitor general who argued the cross case in February on behalf of the Maryland-National Capital Park and Planning Commission, a petitioner along with The American Legion.

Perhaps it is fate, coincidence, or just a good spidey-sense on Katyal’s part that a decision in this case could come today. The cross case is not his only pending decision, and today will turn out to be a good one for Katyal.

The court takes the bench, and Justice Ruth Bader Ginsburg is wearing the black-jeweled jabot that she favors for reading dissents from the bench. We’ll have to wait a bit to learn why.

Justice Ginsburg dissents in The American Legion v. American Humanist Association (Art Lien)

Chief Justice John Roberts says, “In case number 17-6086, Gundy versus United States, the court’s opinion will be announced by …”

Gundy was argued Oct. 2, and is the longest outstanding opinion, leading to much speculation that Justice Sonia Sotomayor was writing the opinion because she is the only one of the justices who has not written a majority opinion from the October sitting.

But the chief justice does not appear to be forming a word that begins with “s.” No, the decision “will be announced by Justice Kagan,” he says.

Justice Kagan with opinion in Gundy v. U.S. (Art Lien)

Kagan begins on a conversational note. “The opinion I’m going to describe is written for a plurality of the court—four justices from an eight-person court,” she says. “Another justice came to the same result in the case but didn’t sign on to any of the reasoning in the opinion.”

The case involves whether a provision of the Sex Offender Registration and Notification Act violates the “nondelegation doctrine,” which bars Congress from delegating its legislative powers to the other branches.

Kagan explains the heart of the issue, which involves the attorney general’s adopting a rule in 2007 that applied SORNA’s registration requirements for convicted sex offenders to “a group of people I’m going to call pre-act offenders,” she says.

Kagan says the “four of us” in her plurality believe the relevant provision requires the attorney general to apply SORNA’s registration requirements as soon as possible.

“And once the statute is understood that way, the four of us think the constitutional question becomes quite easy,” she says. “Although Congress can’t delegate its power to make laws, it can give executive agencies substantial discretion to implement and enforce the laws.”

She announces that Justice Samuel Alito is the fifth vote in the judgment, but she doesn’t attempt to characterize his short opinion. Justice Neil Gorsuch has filed a dissenting opinion, joined by the chief justice and Justice Clarence Thomas, she notes.

That adds up to eight, and she did note the case was heard by an eight-member court. But she does not mention from the bench that Justice Brett Kavanaugh, who had not yet been confirmed when the court heard arguments, took no part in the consideration or decision of the case.

Sotomayor is up next with the decision in McDonough v. Smith, a case about the statute of limitations for a fabricated-evidence claim brought by a county election commissioner in New York state. The facts of the case are messy, and the opinion is technical, but the court rules that a limitations period for the commissioner’s civil lawsuit against his accuser did not begin to run until the commissioner’s acquittal on criminal charges, and thus his civil case is revived.

Katyal argued the case on behalf of the petitioner, Edward McDonough, so he has notched a victory this morning.

The chief justice announces that Alito has the opinion in the Bladensburg cross case.

Justice Alito with opinion in The American Legion v. American Humanist Association (Art Lien)

As we noted the other day, Alito tends to give very short summaries from the bench except in more momentous cases. This summary will not be short.

Alito describes how during World War I, the military marked the graves of fallen American soldiers in Europe with temporary wooden crosses or Stars of David, which was a departure from marking them with the uniform “rectangular slabs” seen in national cemeteries here at home.

The images of row after row of the crosses was moving to the public, he says, and when the War Department announced after the 1918 armistice that the wooden crosses and Stars of David would be replaced with the traditional slabs, there was an outcry.

He describes the history of the Bladensburg cross, which was meant to honor the World War I dead of Prince George’s County, Maryland. After a fundraising campaign and the intervention of a local American Legion post, the monument was finished in 1925, listing the names of 49 local men, both black and white, who died in the war.

He quickly summarizes how the state agency, the Maryland-National Capital Park and Planning Commission, acquired the cross and the land on which it sits, to help preserve it and to address traffic safety concerns around its busy site.

Alito, in summarizing the procedural history of the establishment clause challenge brought by the American Humanist Association, seems to relish highlighting a possible remedy discussed by the U.S. Court of Appeals for the 4th Circuit, which ruled against the cross and mentioned the suggestion of the challengers that the arms could be removed to form a non-religious slab or obelisk. As Alito puts it, the remedies included removal or demolition of the memorial, “or at least that the arms be amputated.”

He explains what is not a surprise by this point, that the 4th Circuit ruling against the court is now reversed, based largely on the role of the cross in World War I and the longstanding nature of the monument. Katyal has his second win of the day.

“The fallen soldiers’ final resting places abroad were marked by white crosses or Stars of David,” Alito says. “The solemn image of endless rows of white crosses became inextricably linked with and symbolic of the ultimate price paid by 116,000 soldiers. And this relationship between the cross and the war undoubtedly influenced the design of the many war memorials that sprang up across the nation.”

He concludes on an eloquent note.

“For some, [the] monument is a symbolic resting place for ancestors who never returned home,” Alito says. “For others, it is a place for the community to gather and honor all veterans and their sacrifices for our nation. For others still, it is a historical landmark. For many of these people, destroying or defacing the cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment.”

Before he announces the lineup, he notes that “my colleagues and I have been quite prolific in our writing.” There are concurring opinions from Justices Stephen Breyer, Kavanaugh, and Kagan, and opinions concurring in the judgment by Thomas and Gorsuch (with various cross-signings). Ginsburg has filed a dissent, joined by Sotomayor.

The lineup reminds me of a time when Justice Sandra Day O’Connor announced a similarly complex listing and quipped that there appeared to be “more opinions that there are justices.”

Alito turns to his right, and Ginsburg speaks up.

“This case, as you have just heard, concerns an immense Latin cross standing alone on a traffic island at the center of a busy three-way intersection in Bladensburg, Maryland,” she says.

Ginsburg’s voice, weakened by a cold and laryngitis on Monday, is considerably stronger this morning, if not quite 100 percent. Perhaps she got a boost from winning the MTV Movie & TV Award as “best real-life hero” in a show that aired on Monday night.

“The Latin cross is the foremost symbol of the Christian faith,” she says. “The Latin cross is not emblematic of any other faith. By maintaining the Peace Cross on a public highway, the state places Christianity above other faiths and conveys a message of exclusion to non-Christians, nearly thirty percent of the U.S. population, telling them they are outsiders, not full members of the political community.”

She goes on for several more minutes before concluding with, “Justice Sotomayor joins me in this dissent.”

This might seem like a good bit of drama on which to end the day’s opinions. But there is one more decision, and it is decidedly less profound. Breyer has the opinion in PDR Network LLC v. Carlton & Harris Chiropractic Inc., about whether the Hobbs Act requires a federal district court in this case to accept the Federal Communication Commission’s interpretation of the Telephone Consumer Protection Act, which prohibits any “telephone facsimile machine” from sending an unsolicited advertisement to another fax machine.

“The case is more difficult than my summary makes it sound,” says Breyer, whose brief summary so far hasn’t made it sound particularly easy.

He quickly adds that “we’re sending it back.” While there is not a great deal the court agrees on in multiple opinions, it is remanding the case to the 4th Circuit to consider two preliminary questions arising from an order of the Federal Communications Commission.

He pauses and almost forgets to announce the lineup. “Oh, wait,” he says, noting that while there is a majority for the limited resolution, Thomas has filed an opinion concurring in the judgment, joined by Gorsuch, while Kavanaugh has filed an opinion concurring in the judgment, joined by Thomas, Alito and Gorsuch.

As the justices rise to leave the bench, Marshal Pamela Talkin announces that we will do this all again on Friday.

The question is, what fateful or coincidental route might Google Maps recommend for Art Lien tomorrow? Through Maryland’s sixth congressional district, at the heart of political gerrymandering case Benisek v. Lamone? Past the Suitland, Md., headquarters of the U.S. Census Bureau, central to the citizenship-question case of Department of Commerce v. New York? Or maybe just his normal route.

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