Supreme Court Update

1. Supreme Court Update Lisa Soronen State and Local Legal Center lsoronen@sso.org

2. Overview of Presentation • What’s going on with the Court generally • What’s going to happen on the Court this month of interest to Regional Councils, COGs, and MPO • What’s of interest next term for Regional Councils, COGs, and MPO

3. Our Supreme Court Conservative Liberal Ginsburg Breyer Sotomayor Kagan • Chief Justice Roberts • Thomas • Alito • Gorsuch • Kavanaugh

4. In Theory we Now Have a Reliable Conservative Supreme Court • For the last 50 years we have had an unreliable conservative Supreme Court • Why? • Powell (’71-’87) • O’Connor (‘81-’06) • Kennedy (’87-’18) • Now Kennedy has been replaced by Kavanaugh

5. Why Only in Theory? • Most cases aren’t decided on ideological lines; but most big cases have been in the recent past • Over the last decade • About 50% of cases are unanimous • About 20% of cases are 5-4 • About half of the 5-4 cases have been “big” cases

6. Gorsuch and Kavanaugh—Not Identical Twins Kavanaugh Gorsuch Formalism, originalism, textualism Less concerned about precedent • Aligned himself with Roberts (more near the center of the Court) • As of May 12 voted most with the majority • Pragmatic

7. Gorsuch and Kavanaugh—Not Identical Twins • Disagreed on two Indian law cases, death penalty, abortion • “Freshman effect”? • Biggest cases of the term are still undecided • Further reading: Adam Liptak, Kavanaugh and Gorsuch, Justices with Much in Common, Take Different Paths, New York Times

8. Three Faces of Justice Roberts • The Chief: The Life and Turbulent Times of Chief Justice John Roberts, Joan Biskupic • Spoiler alert: once a conservative, always a conservative

9. Chief Justice Roberts—At a Crossroads • Conservative on social issues • Same-sex marriage • Race • Plyler v. Doe

10. Chief Justice Roberts—At a Crossroads • Institutional guardian of the Court • Sees himself as the institutional guardian of the Court • Voted to preserve the Affordable Care Act’s individual mandate as a constitutional “tax” • All Justices will now vote in controversial cases with the President who nominated him or her unless Roberts strays • Irony: Roberts could have been the first Chief Justice in modern history to be in the minority

11. Chief Justice Roberts—At a Crossroads • Mine-run cases • Moderate conservative with pragmatic streaks • Two votes “against” the First Amendment • BONG HiTS 4 JESUS in school gets no First Amendment protection • No First Amendment lawsuit possible (generally) if you are arrested for probable cause but also engaged in First Amendment protected speech

12. Where is he Today • Hard to say • Doesn’t want the Court to move too fast (to the right) on controversial issues • Has a lot of power (and he must know it) • Takes 4 votes for the Court to hear a case • Can’t stop his conservative colleagues from granting petitions • Can decide to not vote with them on the merits

13. Abortion—What is Happening? • State legislatures across the country are passing laws that clearly violate Roe v. Wade • Express purpose of these laws is to get the Supreme Court to strike down Roe v. Wade • These laws will (should) all be struck down by the lower courts

14. Abortion—Will the Supreme Court Get Involved? • Probably not with this batch of cases • No need if statutes clearly violate Roe v. Wade and the lower court prevents them from going into effect • When overturning significant precedent Roberts Court has generally acted incrementally • Thomas, Alito, Gorsuch—might be ready • Roberts, Kavanaugh—not as likely ready • Four other conservatives can vote to grant petitions raising the question of overturning Roe v. Wade

15. Abortion—Why Roberts Not Ready? • Not his style—institutional reasons, likes to act incrementally • He hasn’t signaled he is ready • June Medical Services v. Gee—stuck to precedent • Court hasn’t signaled it is ready • Box v. Planned Parenthood of Indiana and Kentucky Inc.--The Court noted that only one federal circuit court of appeals has decided a case involving this issue. “We follow our ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals.”

16. Abortion—What is More Likely to Happen • Court will continue to vote to uphold restrictions on abortions that don’t clearly violate Roe v. Wade • Roberts and Kavanaugh may signal more clearly where they are on overturning Roe v. Wade in those cases

17. Abortion—Why This Strategy • Why not?! • Fundraising? • Incremental is still possible • SCOTUStalk: Tom Goldstein and David Savage talk through abortion, precedent and the Supreme Court

18. Future of the Court • No changes on the Court until after the 2020 presidential election • Justices Ginsburg (86) and Breyer (80) will hold on if they are able • Especially now that Mitch McConnell has made it clear he can’t wait to replace them • And who knows what will happen after 2020? • Will the new world order be that a Supreme Court nominees only get through the Senate if the majority of the Senate is the same party as the President? • Wrinkle will continue to be that Senators up for election in states predominated by the other party may feel they must vote for a nominee picked by a president from the opposite party

19. Issues Important to NARC Members • Local government authority • Environment • Land use/planning • Emergency management • Transportation

20. Conservative Court on These Issues • Local government authority—in theory favorable • Preemption—in theory favorable • Environment—skeptical of environmental regulation • Land use/planning—pro-property owner/against local government • Emergency management—not very involved • Transportation—not very involved

21. Two Big Cases Coming Down Soon • Census case • Partisan gerrymandering cases • June 20 maybe?

22. Census Case • Is it unlawful or unconstitutional to include a question about citizenship in the census? • Worry is many members of the immigrant community won’t participate • Judge Furman summarizes the significance of having an accurate census for state and local governments in his 277-page opinion: “[The census] is used to allocate hundreds of billions of dollars in federal, state, and local funds. Even small deviations from an accurate count can have major implications for states, localities, and the people who live in them — indeed, for the country as a whole”

23. Census Case • Many federal grants are allocated based on populations • Same amount of federal dollars paid no matter who or how many people complete the census • Some states and local governments will get more or less money than they should if certain populations don’t complete the census

24. Expect the Question to be Included • At argument none of the five conservative Justices seemed particularly troubled by its inclusion

25. Census • At oral argument the Court seemed divided on ideological lines 5-4 • Four liberal Justices appeared skeptical of including the question and the 5 conservative Justice appearing to be fine with including the question • Justice Roberts is usually pretty coy about playing his hand these days in big cases • He didn’t ask any questions that made me think he would rule against including the question

26. I was a Little Surprised… • First big case (other than partisan gerrymandering) that the new Roberts/Kavanaugh Court will decide • Contrast this case with the partisan gerrymandering argument where Roberts and Kavanaugh indicated they might be open to disallowing extreme partisan gerrymandering • Equally as importantly your average American doesn’t know or care about partisan gerrymandering • Everyone can understand that either the census will have a citizenship question or it won’t and why a non-citizen might not complete the census or answer the citizenship question honestly

27. Census • In March 2018, Secretary of Commerce Wilbur Ross issued a memorandum stating he would add the question • He claimed the Department of Justice (DOJ) wanted the data to enforce the Voting Rights Act’s prohibition against diluting the voting power of minority groups • Ross later admitted that his staff asked DOJ and the Department of Homeland Security to ask the Census Bureau to include the citizenship question; both agencies declined • Commerce staff ultimately asked then-Attorney General Jeff Session to ask to include the question, which he agreed to do • A number of states and cities and USCM sued to get the question off the census 

28. Five Questions in the Case • Four got air time • Standing—why should the Secretary of Commerce be sued if people act irrationally and fail to complete the form accurately or at all • Reviewability—Secretary argues it has unfettered discretion to add whatever questions it wants to the census • Constitution—census is required by the constitution; census must be accurate on the Enumeration Clause is violated • APA—prevents federal agencies from acting arbitrarily and capriciously or not in accordance with law

29. Bottom Line • Was it arbitrary and capricious for Secretary Ross to add the citizenship question to the census just because he wanted to?

30. APA Arguments—Liberal Justices • Numerous studies indicate fewer people will respond to the census if the citizenship question is added • Low estimate for households with non-citizen members was a drop by 5.1% • Asking people about citizenship status is not the most accurate way to get it. If this seems counterintuitive let me explain. Most citizenship information comes from a database with SSN numbers. Considered very accurate because to get one you have prove you are a citizen. No citizenship information for 22 million Americans. Possible to use math models to estimate citizenship information in the SSN database. Census bureau thinks estimates based on math models will be more accurate than asking because 30% of non-citizens claim they are citizens • Post hoc rationalizations not enough

31. APA Arguments—Liberal Justices • DOJ didn’t want the data so why is it necessary for the VRA • Congress has had a chance to fix this and they haven’t—why shouldn’t we step in?

32. APA Arguments—Conservative Justices • Lots of reasons non-citizens might not complete the form (it is long, English isn’t their first language, they don’t trust the government, they are busy) • Math model for predicting how many people are non-citizens based on existing information doesn’t exist yet • Citizen Voting Age Population is a key number in the census; States complain all the time that they want census citizenship information in VRA cases • UN recommends a citizen question on a censuses • Is the Court going to have to review the legality of every question on the census?

33. Be Prepared • Cities with big non-citizen populations need to think about a revenue decline from the federal government when budgeting • Limits on what the census bureau can do with the personally identifiable information it receives—will communicating that over and over again make any difference? • What advice should local government officials give to citizens about completing the census?

34. Partisan Gerrymandering • What is partisan gerrymandering: redistricting in a way that one party gains as many seats as possible and the other party loses as many seats as possible • Why should local governments care about partisan gerrymandering? • State legislatures determine how much authority local governments have • The most gerrymandered states are most likely to preempt local laws • Learned the hard way even more homogenous states care about partisan gerrymandering

35. Partisan Gerrymandering—A Brief History • Partisan gerrymandering claims are justiciable--Davis v. Bandemer(1986) • Supreme Court may rule some amount of partisan gerrymandering is too much and violates the Equal Protection Clause • Six votes for this position • Weren’t five votes to lay out a standard for when partisan gerrymandering is unconstitutional • Still no standard for partisan gerrymandering cases--Vieth v. Jubelirer(2004) • Justice Kennedy: “The First Amendment may be the more relevant constitutional provision in future cases that allege unconstitutional partisan gerrymandering”

36. Last Term • Supreme Court had an opportunity in two cases to lay out a standard for partisan gerrymandering • Failed to do so for procedural reasons • Neither case is over • Many cases are following in the wake • One is already back

37. Two Partisan Gerrymandering Cases This Term • NC—Republican gerrymander • MD—Democrat gerrymander • Both raise the question of how much is too much • Gerrymandering is extreme and unapologetic • NC: Republicans held 76.9% of the seats in North Carolina’s thirteen-seat congressional delegation but North Carolina voters cast only 53.22% of their votes for Republican candidates.

38. What Does Justice Roberts Want to Do? • Conservatives are generally more skeptical about the Court getting involved in the “political thicket” • Last term he could have said he believed these claims were non-justiciable but he didn’t • Knew Justice Kennedy would not provide a fifth vote to agree with him • Ruling on standing was narrow and fair—all the Justices agreed with it • Oral argument last year he expressed some pretty frank skepticism about partisan gerrymandering • Sociological gobbledygook • Suggested people will perceive the Court as favoring one party depending on how they rule

39. What Does Justice Roberts Want to Do? • This year Roberts expressed some interest in the First Amendment retaliation theory • Maryland legislature needed to move about 10,000 voters out of the Sixth Congressional District to comply with “one-person one-vote.” It moved about 360,000 Marylanders out of the district and about 350,000 Marylanders in the district. As a result only 34 percent of voters were registered Republican versus 47 percent before redistricting. • Looks like First Amendment retaliation to me? We have a test for that • Roberts pointed out to say partisan gerrymandering claims are nonjusticiable the Court would have to overrule precedent which Roberts is loath to do as of late

40. Justice Kavanaugh Might be the Wild Card • Kept on asking all the advocates whether the Equal Protection Clause requires proportional representation • What is proportional representation? • 60% Republican; 60% of seats would do to Republicans • Common in Europe • Need statewide elections for proportional representation

41. If They Come Up with a Test • This will be the biggest case of century (so far IMHO) • Why not just eliminate the extreme? • Justice Breyer: if one party casts the majority of votes but the other party wins two-thirds of the seats the plan is likely unconstitutional

42. Two Other Cases of Interest • Cross case • Cemetery case

43. Enormous Cross Case • Maryland-National Capital Park and Planning Commission v. American Humanist Association • OMG I think this case involves a Regional Councils, COGs, or MPOs • Has a local government has violated the First Amendment by displaying and maintaining a 93-year-old, 40-foot tall Latin cross memorializing soldiers who died in World War I? • Lower court rules against the county

44. Here it is!

45. Enormous Cross Case • Prince George’s County citizens and an American Legion Post raised money to build the monument. In 1925 it was dedicated at a Christian prayer service. Over the years Christian religious services have been held at the cross. • In 1961 the Maryland-National Capital Park and Planning Commission took title of the land and the cross because it is located in the middle of a busy traffic median. The cross is part of a park honoring veterans. Other monuments are located anywhere from 200 feet to a half-a-mile from the cross. None are taller than 10 feet.

46. Sour Lemon Test • Mixture of government and religion is okay • Secular purpose • Reasonable observer would not understand religion to be advanced • No excessive entanglement between government and religion • Lemon on the chopping block? • Roberts Court has taken relatively few government and religion cases

47. Lemon Test: Pass Prong One • Secular purpose: maintain safety near a busy highway intersection and preserves the memorial to honor World War I soldiers

48. Lemon Test: Fails Prong Two • Reasonable observer would understand this cross to advance religion • The Latin cross is the “preeminent symbol of Christianity” • While the cross has secular elements (like the words valor, endurance, courage, and devotion inscribed on its base and a plaque at the base listing the memorialized soldiers), the “immense size and prominence of the Cross” “evokes a message of aggrandizement and universalization of religion, and not the message of individual memorialization and remembrance that is presented by a field of gravestones”

49. Lemon Test: Fails Prong Three • Excessive entanglement between government and religion • The Commission has spent $117,000 to maintain and repair it; in 2008 it set aside an additional $100,000 for renovations • “Second, displaying the Cross, particularly given its size, history, and context, amounts to excessive entanglement because the Commission is displaying the hallmark symbol of Christianity in a manner that dominates its surroundings and not only overwhelms all other monuments at the park, but also excludes all other religious tenets”

50. Dissent • Too much focus on size • “Although a reasonable observer would properly notice the Memorial’s large size, she would also take into account the plaque, the American Legion symbol, the four-word inscription, its ninety-year history as a war memorial, and its presence within a vast state park dedicated to veterans of other wars.”