GW Law, Previewing the Supreme Court’s October 2017 Term, Transcript from September 13, 2017
Dean Morrison: Welcome everybody. I’m Dean Alan Morrison and I teach at the George Washington Law School. It is my privilege to have you here today. My goal is to say as little as possible and allow our superb panelists, whose bios appear in your program, to speak. Let me outline how we’re going to proceed. We’re going to go with five cases, four of them to the individual panel members and then one, Masterpiece Cakeshop, we’ll all talk about. The panelists will speak for five minutes each and then we’ll have five minutes of discussion on each case among the panelists, and then we’ll go on. At the end, I will mention a couple of other cases that we may get some comments on that the Court has already granted and then each panel member will get to talk about one case that they see coming up on the docket if they choose. And then we’ll be on to audience questions. So without further ado, let me present my colleague Jonathan Turley, and let’s begin with the travel ban.
TRUMP v. INTERNATIONAL REFUGEE ASSISTANCE PROJECT1
Professor Jonathan Turley: Thank you very much. It’s a great honor to be here on this esteemed panel. I actually get a twofer because even though I will be talking about the travel ban case it’s actually two cases. The complexity is astonishing particularly because it’s rare that you see this level of litigation after the granting of the cert. So this is just a changing case as we speak. Indeed one of the briefs was just filed late last night in the case. There are two cases, one coming out of the Fourth Circuit one coming out of the Ninth Circuit, and the cases are very different in terms of the basis for ruling against the President on the travel ban.
So first of all on the travel ban you’re already familiar with the underlying facts. Just as we have two cases to deal with before the Supreme Court, we also have two executive orders. We have the original executive order, which caused all the initial litigation. Ultimately, the Trump Administration pulled back from that executive order, rescinded, and issued a new one. I think everyone agrees, or most people agree, that the first order was badly drafted, badly executed, and actually badly defended. The arguments in court were rather anemic. And the answer that some people have said is that these Justice Department officials were thrown into it because, adding to the complexity of this litigation, you had the Acting Attorney General who basically told the Justice Department to stand down in defense of the President’s order.
So we have two executive orders and the Fourth Circuit comes out and rules on Establishment Clause grounds and basically says that this is motivated by religious animus. And in both of these cases, particularly in the Fourth Circuit, the President became his chief witness against himself. Indeed, I can’t really think of any case where a president more damaged the position of his administration with a series of tweets, and so every morning we would wake up with a tweet and you can almost hear the Department of Justice attorneys going into fetal positions. And of course all those tweets ended up in these opinions as did his campaign statements. So Chief Judge Gregory—actually this is an important fact—said we consider the purpose of the order to be facially legitimate. So he actually did say, look this is a facially legitimate act of the President. But he said that’s not enough. We now have to look at whether this was done in good faith, and they said no. They said that this really looks to us as a pretext for an anti-Muslim religious purpose. So there’s a classic establishment case and has a lot of these arguments in it.
The Ninth Circuit then handed down its unsigned opinion. The Ninth Circuit’s record is just voluminous with all of these decisions and cases. The Ninth Circuit looked specifically at the Immigration Nationality Act, so they didn’t base it on the Establishment Clause, and said that, yes the president has broad powers over immigration. But they said, we’re not going to just accept a president waving national security and say that’s the end of it. And so the court said we don’t see any basis for saying that these countries that were banned, these six countries, actually are detrimental to the national security and you really didn’t show it. Now what’s interesting about the Ninth Circuit case is that you had these dissenting judges—five judges issued a rare decision as a dissent to a rehearing which is like, what? I mean it’s usually not something that occupies judges very long but these five judges wanted to go on the record and say, we just disagree, and they wrote a very strong dissent that basically said that the court had ignored critical cases on plenary authority; that it had gone on mainly with Twitter as opposed to case law. What’s interesting about that dissent, by the way, is at the end Jay Bybee one of the most pro-government judges actually went after President Trump on the tweets and on his comments about courts and said that even though they are dissenting they really take strong objection to the President’s statements about judges and courts. So I think I’m running out of time and just tap when I’m out.
So the Supreme Court is looking at a series of issues. And when you watch the Supreme Court long enough, one of the things you look for are “off ramps.” When cases get tough, that’s when justices look for “off ramps.” And there are a lot of “off ramps” on this case. First there is a standing issue. It’s not clear that the one individual who is sort of holding up standing in the key case actually still has an injury. His wife actually was granted entry into the country. So there’s a serious standing issue
Dean Morrison: It’s not a class action.
Professor Turley: Right. And so they really could take that “off ramp” pretty easily. So if they do a head count and it’s not there, you might see—particularly justices on the left say this is a good way for us to get out of this.
There’s also a question of mootness in another respect and that is: the original order said 90 days, but that time didn’t start running because it was enjoined. So the 90 days really ran after the Supreme Court lifted the earlier injunction because Supreme Court said we disagree we’re going to let the travel ban go into effect with the exception of people that have these substantial relationships with the United States. So the 90 days started to run. That 90 day period ends a few days before the October term starts. And what was weird is the Trump Administration could have asked for an expedited appeal and did not, and the Court dropped a footnote,and you almost hear their disbelief, and said we haven’t been asked to give any more expedition we’re just going to put it at the top of the calendar. So technically the Court could say that the original order is dead as Dillinger, and use that as an “off ramp.” If they don’t take those off ramps, you’re left with the Establishment Clause and you’re left with the Immigration Act decision. I have to say I’ve been very skeptical of those arguments. I’m skeptical of the use of the President’s campaign statements. Generally those types of statements are not given the weight that they have been given in these cases, and that’s an issue that may weigh heavily on some of the justices on the left: to what degree do they really believe that this type of animus determination can be based on campaign statements, particularly when there are statements going both ways?
But more importantly on the establishment question it’s very complex. In order to win this case I think that the Supreme Court would have to create some new law and would have to cut back on what’s called the plenary authority of the president. The Supreme Court has largely yielded to the president at our borders and said that the president has plenary authority over immigration. Those cases that the dissenters in the Ninth Circuit pointed out were virtually ignored by their colleagues. I think that’s a legitimate point. The Supreme Court is not going to ignore those cases. And so we’re going to have an interesting fight, if we get to it, on plenary authority and whether a president should be given this degree of control. Should I stop there?
Dean Morrison: Let me ask you two quick questions. The travel bans themselves have two different categories, one is granting of visas, and the other is refugees. Do you think that’s going to complicate the matter?
Professor Turley: I think it is and indeed one of the issues that played largely in the lower court decisions was the 1990 amendments to the Immigration Act, and some of us question the relevance of that because you have basically two provisions. One provision says the president can make determinations on individual aliens or classes of aliens and gives him sweeping plenary authority. Then in 1990 they had a provision that said but you can’t discriminate on the basis of beliefs. But then 1990 Amendment excluded what are called “procedures” that they said . . . this doesn’t limit your right to change procedures, which is what the administration argues is in fact the vetting process. So, and also, this answers your question, it doesn’t really deal with visas. So that issue will loom in the litigation.
Dean Morrison: Greg you’re a former solicitor general. What do you think about the President’s arguments on plenary power here?
Gregory Garre: Well I think the President is on very strong footing if you just look at the text of the statute to begin with, which gives the President seemingly almost plenary authority to make these national security determinations and certainly the President is on strong footing in terms of the general constitutional authority to make these sorts of national security determinations. Unfortunately the litigation is in a more challenging posture because a number of his statements, although I agree with Professor Turley that I think that the Supreme Court is likely to resort to these statements outside of litigation and outside of the actual determination to be less probative that perhaps in the lower courts.
Dean Morrison: This case is up on a preliminary injunction. What effect, if any, do you think that will have as opposed to being after a final trial on the merits?
Mr. Garre: Well it’s one of the “off ramps” that Professor Turley pointed to and it’s a very unusual situation. Very quirky. Oftentimes the Supreme Court will wait to hear a case until there’s been full proceedings in the lower courts or a permanent injunction although it’s not terribly unusual for an important issue to get up to the Court on the basis of a preliminary injunction. But this case is not only exceptionally important but also exceptionally messy as a procedural matter. So there’s just so many things that could happen including the fact that the argument might just go away because the case could conceivably moot itself out before then.
Sherrilyn Ifill: Yeah I just wanted to comment on the use of campaign statements and tweets, which I think obviously we’re in a new terrain. It’s kind of unusual. I will say from my own perspective, I’ve actually been quite encouraged by the willingness of courts to look at that context in the classic race discrimination context in which I work, that’s essentially what you have, what you have is the context of decisions. And I will say it’s probably been—I don’t want to date myself—but certainly many decades since I’ve seen the kinds of statements that we see that this President has made in the Muslim ban context, in the context of the litigation that we filed against the Election Integrity Commission where you have statements both during the campaign and after the presidency. But these are the kinds of statements we used to pull together. It is like Major v. Treen where the legislatures went into the basement and decided to create a racially discriminatory map in New Orleans, you don’t see stuff like this anymore.
Dean Morrison: They know better.
Ms. Ifill: They know better. But this President doesn’t know better. And so for my purposes I would say I don’t think we should dismiss it as kind of resorting to campaign statements. This is actually what you do in race discrimination litigation. You look at the context, you look at what is the motivation of this individual. And so here where we’re talking about whether this involves racial animus, of course the President has plenary power, but even the President’s plenary power stops at the borders of both arbitrariness and discrimination. And I think that these statements are quite probative and quite essential to the Court’s ability to really test the limits of that plenary power.
Professor Rosen: Just a small point. I support all the great points that have been made. There was a very interesting statement in the separate concurrence of Justices Gorsuch, Alito, and Thomas where they said that they believe that a majority of the Court would not find that there was an Establishment Clause violation. That supports Professor Turley’s prediction that if the Court were to rule on the merits it might rule against the Establishment Clause. It wasn’t obvious from the opinion itself; but they presumably knew what they were talking about. Now Chief Justice Roberts really cares about unanimity and the last travel ban decision was a perfect example of his ability to not decide the case on broad constitutional grounds but find a narrow, pragmatic compromise. Presumably the pragmatistic justices, Breyer and Kagan, will do anything possible to allow Chief Justice Roberts once again to avoid a substantive constitutional ruling especially if they don’t think they have the votes. And I guess the surest way of doing that is to moot it out or decide on the statutory grounds. But mooting it out would leave the law in place so that would be a narrower ruling.
Professor Turley: I think that’s an excellent point and indeed those three justices called the shot, which was quite rare. They went out of their way to make it clear that they would not have done a selective lifting of the injunction. They would have lifted the entirety of the injunction. And I think that that’s rare in the sense that there’s only one reason that you would say that, and that is you’re calling the shot on that on that issue. Where I would disagree on the statements is, I just think the justices are going to get sticker shock. I have to admit, I would not sign on to the use of these statements the way the lower courts did because I’m not too sure what the limiting principle is. We’re sort of two generations past the politics of those campaign statements, and there was some selectivity—I’m willing to agree that there is animus here I have no problem with that—but he also made statements where he said he didn’t have animus; he made statements that went the other way and you can say those were artificial and those were forced by politics. But the question for a judge is—and this is when you get sticker shock—is when you’re sitting there and you go like OK well is this what it’s going to be like now? We’re going to start to cherry picking statements and looking into the motivations of a president. The last point is that when an executive order is issued it’s the statement of an administration even though the president is the head of it and I’m not too sure these justices are going to want to change that.
Ms. Ifill: Can I ask you, do we have a problem with the statements post-campaign? In other words because you’ve got the campaign statements and then you have after the campaign when he’s the President and he’s constantly referring to it as a Muslim ban. Is that the line or are they all-?
Dean Morrison: I think we’ll find out. One controversial case to another: a case that literally affects everyone in the United States, the redistricting case.
GILL v. WHITFORD
Professor Rosen: Many consider the partisan gerrymandering case the most important case involving the structure of American politics in a generation. And the questions are this: are extreme partisan gerrymanders violations either of the Equal Protection Clause or parts of the First Amendment? Now the Court’s going to be deciding the question but it might be worth pausing for a second to ask what are the practical effects of partisan gerrymanders? First of all what is a gerrymander? So I’ve now learned pedantically that we can pronounce it gerrymander [with a hard “g”] because it comes from Elbridge Gerry of Massachusetts who drew voting districts so serpentine that they look like salamanders in order to protect incumbents in Massachusetts. So they’re known as “gerrymanders” and they’ve become much more extreme in the light of new computer technology that allows legislators, with laser like precision, to select exactly who’s in their districts. So using demographic data and consumer data and so forth they know exactly how everyone is going to vote and they can construct incredibly safe seats that are reliably Republican [or] reliably Democratic.
The first question is: is this responsible for political polarization? There was a wonderful debate co-hosted by Intelligence Squared and the National Constitution Center that raised this question and the audience voted before and after. But they were so persuaded by the arguments of Professor Nolan McCarty of Princeton that it’s not partisan gerrymandering that’s responsible for polarization, it’s The Big Sort. Basically red and blue America live in different places, and if you have a place that’s almost entirely red or entirely blue, regardless of how you draw the districts, they’re going to be very safe. So it’s the fact that we live in different places and watch news in different filter bubbles that’s responsible for polarization not political gerrymandering. That argument, supported by data, persuaded the audience, which overwhelmingly voted against the proposition that political gerrymandering is responsible for polarization. (Check out the debate online to get the details.) But that doesn’t mean that gerrymandering has no effects. In its most dramatic forms, it allows a party that gets a minority of the votes to get a majority of the seats. And that’s what happened in Wisconsin where Democrats won more than 50 percent of the vote but got only 40 percent of the seats. In its most dramatic form, that could be a violation of the republican form of government clause. That’s what Robert Bork suggested long ago that when you actually have a minority vote into a majority of seats then you’re denying the majority to work its will. And there’s no question that this entrenches the party that’s benefiting from the gerrymander exaggerating its strength and allowing it to sustain its hold over legislatures for years to come. So even if it’s not responsible for polarization it’s definitely responsible for a partisan entrenchment and may lead, in extreme cases like Wisconsin, to a threat to a majority government itself. In Wisconsin, in 2012, Republicans won 48.6 percent of the vote but 60 percent of the seats.
All right. What are the constitutional questions? The Supreme Court ruled in a series of cases beginning with Davis and Bandimer and, most recently in the Vieth v. Jubilier case, that partisan gerrymandering may be justiciable. What does it mean to be justiciable? If case is a political question then the Court’s not allowed to review it at all. The definition for a political question is easy to remember from Con Law. It’s one of these great three part tests and the questions include: is the case committed to another branch of government to decide? Are there manageable standards that can be administered? And is there a danger of a conflict between the branches that could embarrass them? The key question in partisan gerrymandering is is there a manageable standard? In the Vieth case, which was five to four, with Justice Kennedy joining the more liberal justices in holding that partisan gerrymandering could in theory be justiciable. But Justice Kennedy added that we haven’t yet come up with a manageable standard that courts can administer. He basically said come back to us if you think of one, but for now we just think the whole thing is too mushy to interject judges into the political thicket because they have no standard for judging what’s a partisan gerrymander. Lo and behold, two brilliant law professors have come up with a manageable standard. Nick Stephanopoulos of the University of Chicago and his colleagues have come up with something called the efficiency gap.2
I can describe the efficiency gap from Stephanopoulos’ article in The New Republic from 2014 “How to End Gerrymandering Once and for All” and in the briefs of the case. Here’s the basic idea: when extreme partisan gerrymandering takes place, voters are packed or cracked into districts so there are a lot of wasted votes.
What’s a wasted ballot? A ballot that doesn’t contribute to victory for the candidates, it could mean “lost votes cast for candidates who are defeated, and surplus votes cast for winning candidates but in excess of what they needed to prevail.” Briefly, and I’m quoting here, from the article: “Suppose for example, that a state has five districts with 100”—well actually I think they give you all the numbers here. The basic idea of the efficiency gap is that it “directly captures the packing and cracking” and allows and an arithmetic formula for “represent[ing] a party’s undeserved seat share: the extra fraction of seats a party wins relative to a neutral plan” and the way that it works is that “[f]irst, the plaintiff must show that a plan has an efficiency gap that is above a given threshold; two seats for house plans—and that is unlikely to fade away given any plausible vote swings. If the plaintiff makes this showing, then the burden is on the state to prove that its plan’s large gap is the unavoidable result a legitimate policy: complying with the Voting Rights Act, for instance, or drawing compact districts.”
Because the efficiency gap is easy to calculate, the challengers hope that they can persuade the Court to adopt it. Will they? Under the Equal Protection Clause, it might be a stretch. As a matter of original understanding, the Equal Protection Clause was not intended to apply to political rights as an original matter. It was actually intended to apply only to civil rights and the entire post-1960 voting rights jurisprudence which began with Baker v. Carr and then involved the drawing regulation of majority/minority districts and then culminated in Bush v. Gore is essentially judge made law that’s hard to root in the text or original understanding of the Equal Protection Clause. So Justice Kennedy would need to be ready to impute into the Equal Protection Clause this efficiency gap formula that it clearly wasn’t originally intended to encompass. Is he ready to do that? He may be more willing to read the efficiency gap into the First Amendment. Justice Kennedy cares a lot about the First Amendment and in the Vieth case, he noted that extreme political gerrymanders may raise First Amendment concerns
Dean Morrison: Is the First Amendment in this case? As I read the lower court opinion they didn’t raise the First Amendment argument.
Professor Rosen: That’s exactly right. There’s a comparison in another case from Maryland: Benisek v. Lamone, which does raise the First Amendment question clearly. This is Maryland 6th Congressional District and the claim is that it violated the First Amendment rights of the voters.
Dean Morrison: And unlike the Wisconsin case, that’s the case where the Democrats did a number on the Republicans, rather than as in Wisconsin, which was the other way around.
Ms. Ifill: Allegedly.
Dean Morrison: Exactly.
Profesor Rosen: The Brennan Center, which is non-partisan in this matter, has challenged both the Maryland Democratic gerrymander and Republican gerrymanders.
Dean Morrison: Jeff—do you think . . . there is an amicus brief opposing the state of Wisconsin, which favored Republicans, submitted by Republicans. There are obviously Republicans on the other side. Do you think this will persuade the Court that this is really an apolitical issue and it’s about good government and it’s not just about politics?
Professor Rosen: I think that there is broad concern among Democratic and Republican elites about polarization. So Justice Kennedy really cares a lot about polarization, he’s really concerned about the decline of civil discourse, and if he believed that partisan gerrymandering was really responsible for it he might jump in.
The difficulty is that this is really judge-made law in the extreme, and that’s why the First Amendment peg is so promising because Justice Kennedy is very willing expansively to construe the First Amendment, in cases from Citizens United to other cases, if he thinks that associational rights are at stake. So I’m not going to call this one. It all depends on Justice Kennedy, and it’s entirely novel. But on other hand, this efficiency gap standard is clear and easy to understand and just the fact that you’re getting minorities who are electing a majority of seats is such a democratic dysfunction that it’s not totally inconceivable that he might go for it.
Dean Morrison: Greg, this is a case in which there is both a political question threshold issue and the merits issue. Are those related in your mind? Will that affect what they do, or will their view on the merits of the efficiency gap issues affect their views about political question and manageability?
Mr. Garre: I think it will. I mean you know one of the questions I think the justices can’t help but think about and decide in this case is what are we getting into if we adopt the standard? Because the Supreme Court of the United States is going to turn into the gerrymander Court of the United States. All of these cases are eventually going to go up, people are going to seek reviews, the Supreme Court does not have to hear them. But I think it’s got to be on the mind of the justices; what are we getting into if we really go down this road? On the other hand I agree with Jeff’s commentary on Justice Kennedy. There are nine justices but this case is essentially going to a Court of one person: Justice Kennedy.
Dean Morrison: He doesn’t like to say never.
Mr. Garre: He does not like to say never. And he hedged last time. So as hard as it is to see the Supreme Court sort of wholeheartedly embrace this new era of litigation it’s hard to see Justice Kennedy say no this is not justiciable go away.
Dean Morrison: In the voting rights cases, the defense in every case by the state was, oh this is not about race, this is about politics, which is legal. But we know that in this context race and politics were closely tied together. How do you think that’s going to affect them, because of a real uneasiness I sense from the court in dealing with that kind of a defense.
Ms. Ifill: This has been really bedeviling, I think, these cases for some years, and it’s been quite difficult for us frankly. What do you do when political party and race have become almost proxies for each other? That they’re so closely aligned that it’s difficult to actually untangle them? And what I think people tend to do is pretend that the race piece not there; to say this is about politics, but they are so closely allied and they are increasingly proxies for each other. And I think Greg just hit the nail on the head when he said the Court is going to be worried about: is this the new Court? Is this the gerry Supreme Court? This term is filled with cases just like that. I think exactly what Jonathan described about the about the travel ban, I think Masterpiece Cakeshop, I think this case, I think these are all cases in which the Court would have to be stepping into waters that it—you said sticker shock—that they’re uncomfortable with. My own view and for my purposes I think it’s important that we not simply just predict that the Court will be careful. I think we should be talking about what should the Court be stepping into because every generation’s Court stepped into fields that they never stepped into before. And this is one of those situations in which I think that the polarization that everyone’s identified is of deep concern to Justice Kennedy. I think it’s a bipartisan concern to many people. I think we’ve come to the point where it’s regarded as a kind of as a serious democracy concern. And because the efficiency standard is a workable standard and appears to be a workable standard,there may be no better moment as we confront this truly polarized country,in all ways, then just to step into this field.
The last thing I’ll say is one of the things that’s deeply troubling about what we see about these kinds of partisan gerrymanders, and Jeffrey alluded to this in the beginning when he said we live in separate places, we call that segregation, right? There’s a way in which segregation has become the engine that has allowed these kinds of extreme partisan gerrymanders to happen. And so in a way once again race is underneath it even though it’s not on the surface and we’re not talking about it that way, it’s there. The extent to which the Court is willing to engage, I think, for all the reasons that we’ve talked about already is small but it’s very present. And I am curious to see among these cases which will be the ones where the Court will say it’s time for us to step into this.
Dean Morrison: And do you think this might change the voting rights cases if they are willing to say well you can’t defend on the grounds of party?
Ms. Ifill: It would be explosive if they were because that that is something that has held us back.
Professor Turley: This is, for me, the most interesting case on the docket in terms of the institutional culture of the Supreme Court. This is the one where—you always look for one where the Court may be responding as much with it out of concern of who it is and what it does in its function as the law. And that’s what this case is and the Court’s really between the horns of a dilemma. If you look culturally at how the Court decides these questions, on one hand I think the floodgates issue is going to loom very large for the Court: Do we really want to be in a position of determining which districts now, for political purposes, are misshaped and which are not? But on the other hand the Court has shown a longstanding resistance to saying we’re never going to look at an issue, and this case is going to force them to do that. I mean in order to get out of this cleanly if they want to do the merits, they’re going to have to say look this is just not happening. This is not part of the constitutional standard that we have to apply and that’s going to go against it. Justice Kennedy is interesting because we saw with liberty interest that he’s worked to create this new concept of a liberty right. He has the intestinal fortitude to create something that is really of his own making, in terms of that. And so of all of the justices to be the swing on this one he’s the one that’s most unpredictable I think that’s why Jeff is wise to say, I’d rather this come passed from my lips in terms of making a prediction you know.
EPIC SYSTEMS CORP. v. LEWIS
Dean Morrison: All right. Going to change now to an important statutory question involving labor laws.
Mr. Garre: Sure. So a long, long time ago the case that I’m going to be talking about—actually there’s three cases—would have been viewed as a blockbuster case for this term and as it turns out you had the travel ban and gerrymandering and Masterpiece Cake and this case is sort of just involves a ho hum routine application of law. It’s arguably one of the most important business cases of the term. The question is whether employer-employee agreements to resolve work related disputes through individual arbitration is enforceable under the federal labor laws. The way that these cases came up is employees brought wage and overtime related claims against their employers under the Fair Labor Standards Act in federal court on a collective basis—class or group of employees—which they are allowed to do under the Fair Labor Standards Act. So, so far so good for the employees. The problem is that employers, when the employees joined their companies, asked them to sign agreements that said if you have work related grievances in the future you will agree to arbitrate them on an individual basis. It probably seemed like not so much of a big deal to the employees when they joined the companies but all of a sudden down the road it is an obstacle—
Dean Morrison: And these were all represented by unions weren’t they?
Mr. Garre: No they were just employees—down the road it becomes an obstacle to their federal court collective action for violation of the federal labor laws. So in order to get out of those agreements, the employees said aha there is a provision of federal labor law that entitles us to bring our claims on a collective basis in federal court and that essentially nullifies these individual arbitration agreements and that’s section 157 of the National Labor Relations Act, which gives employees the right to engage in concerted activities. It’s essentially a collective bargaining provision but it has language that gives them the right to engage in “concerted activities.” And so employers came back with that. The employers then turned around and said wait a second we have our own rights under the Federal Arbitration Act. And that Act essentially was enacted to ensure that courts would give effect to arbitration agreements—there’s a federal policy in favor of arbitration. So what these cases involve is how do you work out that seeming conflict between federal law and who prevails in these actions? Employers, who very much like to arbitrate cases on an individual basis because it’s more efficient they would say, or employees who can have advantages in proceeding in a group and having more leverage against employers? So I think there are three interesting things about this case as it comes to the Supreme Court. The first is that looking back over the past decade arbitration has really been sort of one of the major fault lines on the Court ideologically where justices are broken down into two camps. The Court has taken a number of arbitration cases in the last decade or so. Many of the most important cases of them is always split 5-4, with Justice Scalia being a very strong proponent giving effect to arbitration agreements. One of the most recent cases the case called AT&T v. Concepcion where employees turned to state law to argue that arbitration agreements were invalid because it was unconscionable to force them to bring claims on an individual basis when they could bring them on a state basis. Justice Scalia wrote the decision for five Justices of the Court and that provoked a very heated dissent.
Now when the Court agreed on these cases Justice Garland had been nominated to fill Justice Scalia’s seat. So actually as these cases came to the Court and employers lost in two of the cases in the lower courts there was a big question as to whether or not the employers would want to bring this case to a Supreme Court that appeared to be shifting from a 5-4 majority favoring arbitration to a 5-4 majority with a Justice Garland that would have perhaps given more leeway to the employees rights in this area. But now, of course, as the court is poised to hear this case we have a Justice Gorsuch instead of a Justice Garland, and so we don’t know how Justice Gorsuch is going to rule on arbitration issues, but it seems unlikely that one can expect a major shift from Justice Scalia’s view in this case. So I think just thinking about this case in terms of the courts fault lines is interesting.
The second thing is, just with respect to the merits, this case really just sort of boils down to the interesting question of statutory law—which Act prevails? The Federal Arbitration Act was passed in 1925 and it was specifically passed because courts weren’t giving effect to arbitration agreements so Congress stepped in to say, courts you have to. These agreements shall be given effect, shall be valid, save upon such grounds as exist at law or equity or the revocation of the contract. That’s what Congress said. And in 1935, a decade later, Congress passed one of the seminal federal labor laws. The National Labor Relations Act gave employees the right to collective bargaining and then gave them the right to engage in concerted activities for their mutual aid and protection. So which of these trumps? Both sides have good statutory arguments, but I think the employers have a few advantages going in here particularly with a more receptive set of justices. The first is that the Federal Arbitration Act was first in time, which arguably counts a little bit. The second may be more important is it’s more specific as to covering the specific context here. There’s no particular evidence in the statutory language or even the legislative history that when Congress passed the National Labor Relations Act and referred to concerted activities that it had in mind class arbitration or even class litigation.
Dean Morrison: There was no class litigation until 1966.
Mr. Garre: Right. And then the last, the other advantage that employers have is the Supreme Court in a recent case, Copy Credit v. Greenwood, adopted arguably a clear statement rule that it wasn’t going to turn into other federal statutes to override the Federal Arbitration Act unless they clearly expressed and spoke to the issue, and it doesn’t seem as though the National Labor Relations Act speaks to that issue.
So you know there are good arguments on both sides but particularly with the receptive Court I think the employers have something to work with.
Dean Morrison: And the Federal Arbitration Act has been held to apply to federal causes of action not simply state causes of action. In the employment discrimination area there are not only claims for damages, but also for claims potentially for injunctive or structural relief. Can those things be done in an arbitration context and might that have any impact at least in those cases?
Mr. Garre: It could.There are limits to what kinds of claims can go into arbitration. What it may do is, ifthe Court rules against the employees in this case it may cause them to bring different sorts of claims from different types of relief.
Last thing I would mention about this case which may in fact be the most interesting is that the United States flipped its position on the issue before the Court. When the case came up the President was Barack Obama and his administration filed briefs defending the employees in this case.
Dean Morrison: That’s the National Labor Relations Board.
Mr. Garre: The National Labor Relations Board which is actually a party in one of the cases before the Court now. When the Trump administration came in they looked at the briefs this case and they flipped their position. And to make it even more odd, the Solicitor General filed a brief now saying we’ve looked at this and we now agree with the employers,but then the Solicitor General authorized the National Labor Relations Board to then continue to defend itself. So before the Supreme Court the United States for this case when it’s argued on October 2nd, actually it’s the first argument of the term, you’re going to have the Solicitor General up there on behalf of the United States arguing against an agency of the United States, the National Labor Relations Board, which is something that doesn’t happen.
Dean Morrison: And there are going to be employers’ lawyers and workers’ lawyers there, right?
Mr. Garre: There are going to be a lot of lawyers there.
Ms. Ifill: You know Greg, I actually think this is one of the most important cases of this term. For two reasons. So we filed an amicus brief in the case and I hope people will take a look at it. Everything that you know about what protects you as a worker that comes out of case law essentially happened through concerted action happen through class action cases like the Griggs case and Albemarle Paper and all of the early employment discrimination cases from the 1970s that said that employers can’t do certain kinds of things: they can’t make up tests, they can’t create arbitrary rules to decide who’s going to be employed, and they can’t take action against you and retaliate and so forth. All of what we know about that really came out of these concerted actions, and the concerted actions happened particularly in the civil rights context because individuals really were not able to sue on their own. They wouldn’t have sued on their own, the wages that they made from their job were so low that, they were fearful, they feared retaliation, the ability to challenge pattern and practice and environments in the workplace really came through that concerted action. So this is one of those instances where we have to recognize that what looks like a kind of sleepy kind of case is really quite important and really quite important to how we think about what it means for workers to come together to be able to challenge conditions in the workplace.
The second part of it is that it’s recognizing the difference between arbitration and litigation. We’re really talking about the privatization of disputes around the workplace. Litigation is public. It’s something that you can see, there are documents that you can obtain. It can be reported on by reporters who can attend the trial and so forth. Arbitration is private and to the extent we’re increasingly moving these kinds of disputes into this private realm and requiring this one-on-one kind of seriatim exploration of these of these claims, we’re essentially really denuding the ability for the public to see and be engaged in the development of the law as it relates to challenges in the workplace. Concepción I think was another one of those cases that people weren’t paying that much attention to but should have. The business community was paying attention, but certainly from our perspective, we see this as a civil rights issue, we see this as a worker’s rights issue. And I’m very fearful frankly, given the new Supreme Court, what will happen.
Professor Turley: I agree how important this case is. Congress is looking at this issue. There are a couple of bills that have been raised about finally taking a comprehensive approach to arbitration on all these types of rules. I also think the part of the case that is the most interesting is precisely the point that Greg made. When you look at the switch from Garland over to Gorsuch, this case popped to the surface of all the cases on the docket this is the one I think will have most pronounced impact. I would bet for the employers. I think that it’s very likely that Gorsuch is going to take the same view as Scalia perhaps not as robust in language or colorful but I think this is one of those cases on the docket which really is going to see the impact of that switch.
Professor Rosen: The business cases were not always 5-4. There’s a suspicion of regulation by litigation among the liberal justices, including Justice Breyer, who often votes for the pro-business side. So do you think it will be 5-4?
Mr. Garre: I think it’s likely to be 5-4. And I think the liberal justices will start with you know many of the concerns that Sherrilyn mentioned.
HUSTED v. A. PHILIP RANDOLPH INSTITUTE
Ms. Ifill: Yes, Husted, the little case that could. So this be should be a very simple small case about a partial part of one state’s system that it uses to clean up its voter lists. And yet it is actually I think quite an important case and made even more important by the context in which this case is coming to the Supreme Court at a moment when the issue of voter suppression is all around us.The President’s Election Integrity Commission just met yesterday and some of you have seen some of the reports about that and so this happens amidst that entire context.
Some background: So the National Voter Registration Act was passed in the early 1990s. It had two purposes: one was to increase the number of eligible voters who would be registered to vote, and secondly to ensure that states had up-to-date, accurate voting lists. Many of us know the National Voter Registration Act because we think about the motor voter law that was one way to kind of increase registration—to require that motor vehicle bureaus and other social services agencies provided opportunities for people to register to vote. But one of the things that the National Voter Registration Act said is that in fully fulfilling that second purpose, that is maintaining accurate up to date lists, that states could not remove people from the voting lists simply because they haven’t voted. In other words, yes we want to facilitate people participating in the political process becoming registered to vote, but you also have a right not to vote and you shouldn’t be penalized by being removed from the voter rolls simply because you chose to, as some people would say, vote with your feet. And the Act itself actually suggested the ideal way in which states could pursue both of these goals. The Act has essentially suggested that one way you could clean your list is that the state could use the database created by the United Postal Service for when people change their address, right, you register with the national change of address service. And essentially what states could do is they could take the names from that list, in which people are essentially saying I’ve moved, and they could use those names and they could send out notices to individuals to confirm that they’d moved or, if we haven’t heard from them, that tells us something, and then what we do is we wait to see whether those individuals have voted. And if an individual has either sent back in the card and confirmed that they moved or the individual has not sent back in the card and then they have failed to vote in the subsequent two federal elections then the state could take action and remove them from the rolls. So this is kind of the ideal process suggested in the statute.
The Help America Vote Act then was passed after the disastrous 2000 almost 2001 election in an effort to provide some uniformity of how states were engaging their processes. And one of the things that it required is that states maintain a state-wide voter list of registered voters. And interestingly the Help America Vote Act included some language, first saying that it that it was to be consistent with the National Voter Registration Act—the earlier passed Act—but also saying that voters could not be removed from the rolls solely because they didn’t vote.
Let’s go to the state of Ohio. So the state of Ohio, like many states, uses the process suggested in the National Voter Registration Act. They used the list from the United States Postal Service, they see people have moved, they send them the card and so forth. But the Secretary of State of Ohio also suggested a supplemental process and it’s that supplemental process that’s at issue in the Husted suit. Under the supplemental process what Ohio does is it looks at individuals who have not voted for two years,and it sends them the card and waits to see whether they are confirming that they moved or whether we don’t hear from them,and then if we don’t hear from them then we continue with the process if they don’t vote in the subsequent two federal elections then we remove them from the rolls. So the question is, does this violate the Help America Vote Act? In other words by using nonvoting as the trigger to begin the process of determining whether or not I’m going to remove you from the rolls.
So. Ohio does this, so what who cares. No split in the circuit. Why would the Supreme Court be interested in the case? Fifteen states, Georgia and 14 others, filed an amicus brief in support of cert. saying we need to know we need some guidance we maybe do things like this also and we want to know whether or not we’re violating the National Voter Registration Act and so the Supreme Court has taken the case. And it’s an interesting one in the context of what is happening in the country right now because we know about the Election Integrity Commission. We know that on the same day the Election Integrity Commission asked the 50 states to provide information about every registered voter the Department of Justice also reached out to all 50 states and asked all of the 50 states to provide the Department of Justice with information about how they are complying with the National Voter Registration Act and what they are doing to ensure that their lists are clean and that they are engaging in proper purges of those lists. Now this is problematic because voter purges have been one of the key voter suppression tools that civil rights groups have been confronting and engaging. That is the excuse offered by not only state election officials but local county election officials as well that we have a lot of dead people on the list—we have people who have moved or we want to make sure that we’re avoiding voter fraud—and using that as the pretext to blanket remove people from the list. And there have been lots of problems. We know this happened in Florida in 2000, this happened in Ohio. In fact pursuant to this suit it was determined that there were over 7000 voters that Ohio was prepared to purge from the list who in fact were eligible voters. So the question of voter purges sits right at the center of voter suppression and the question of whether or not one can use, a state can use nonvoting as a trigger to begin a process to purge folks from the voting rolls is important.
The context you see from the perspective of those of us who are engaged in this voting work that I think is really important is that we’re seeing kind of a lineup of three things that we’ve actually never seen before. We have the Supreme Court’s decision in the Shelby case in 2013, which removed the pre-clearance requirement which would have required many of the states like Georgia and the other southern states that have asked the court to hear this case, would have required them to get permission from either the Attorney General or from a federal district court judge before they engaged in any new process for purging voters from the rolls. Now they no longer have to do that because at the 2013 Shelby decision. You also have the federal government, as I just discussed, creating this commission—the Election Integrity Commission. You also have the Department of Justice requiring this information from all 50 states. And here is yet another case in which the Department of Justice has changed his position. When this case was in the Sixth Circuit in the court of appeals the Department of Justice stood with the plaintiffs in the case and said that Ohio had violated the National Voter Registration Act. Now the Solicitor General has reversed that position. And so you’ve got the Department of Justice, you’ve got the Supreme Court’s Shelby decision and then you have what we have always had in these voting rights contexts which are state and local actors who are engaged in a series of processes that very often are engaged in voter suppression or trying to purge lists to decrease minority voting. And with those three things all lined up it makes this case vitally important because the National Voter Registration Act requirement that you cannot begin to purge people simply because they haven’t voted is one of the backstops.
If you think about two contexts, if you think about the election of President Obama in 2008, many people who had not voted in many years voted for President Obama in 2008. They were energized by this young candidate who had a message of hope, they wanted to be part of the historic election of the first African-American president, and they came out and we had one of the highest turnouts in a presidential election ever. Likewise in the last presidential election many voters were energized by President Trump. Many white working class voters white poor voters who had been disaffected by the political system. Maybe some of those folks that we saw marching in Charlottesville felt excited about this candidate and they wanted to vote, and they hadn’t voted perhaps in the prior two federal elections because they didn’t feel energized by the candidates that they were presented with or they felt disaffected by the political process.
So this is a kind of an important question: whether or not we can use the fact that people have suddenly become energized and want to participate in the political process but haven’t in the past. Do we want to interrupt that or do we actually want to be doing what the National Voter Registration Act really wanted us to do, which was to increase the people who are registering to vote because they want to participate in the political process? And so because of that overlying context of voter suppression and voter fraud that we’re talking about in this country this case, which should have been a case just about one state’s supplemental process, is going to turn out to be a much bigger deal.
Dean Morrison: The plaintiffs don’t argue that unclean voter rolls are a good thing in our society. The question is how they should be cleaned up. In a way this problem has been festering for years. And the states purporting that they want to have clean rolls there’s lots of easy things they can do. Driver’s licenses. When you move from one place to another you have to get rid of one driver’s license and get another, that’s a very easy way.
Ms. Ifill: Oh no question. States can use the motor vehicle bureau information, they can use their own death records, they can use records of felony convictions in cases where there are felony disenfranchisement laws. There are all of these other state databases that can be used if you really want to clean the list. But using nonvoting as the trigger is the question.
Professor Turley: Well one question I have is who do you think took this case? I mean who do you, I mean, I know this puts you in a really rough position but I when I saw this case I was thinking who are the justices that wanted this case? I mean obviously we don’t know but I was wondering if you had any thoughts?
Ms. Ifill: Oh this is a great question I would love to hear from my colleagues—.
MASTERPIECE CAKESHOP LTD. V. COLORADO CIVIL RIGHTS COMMISSION
Dean Morrison: So let’s shift now to Masterpiece Cake. This case involves two gay men who had been married in Massachusetts, came back to Colorado at a time when Colorado did not recognize gay marriages, but it had a very broad civil rights statute that precludes discrimination in any sort of public accommodation including buying wedding cakes based on sexual orientation. These two men went into Masterpiece Cakeshop. They said they’d like to buy a specialized cake and the person there said “what for?” and they said for our wedding. And he said I don’t do my cakes for those weddings. I’ll sell you anything off the shelf but I will not do these cakes which I consider to be artistic and my personal involvement in it. He said that he did it because of his religious beliefs. As the case comes to the Supreme Court—and it went first to the Colorado civil rights commission—they found against the cake shop owner. He has two claims that are related. One is the claim based on religion: the state can’t force him to do something inconsistent with his religious beliefs. The second claim, and this is the claim interestingly which the Department of Justice has supported, is that this is a violation of his First Amendment free expression rights—they are forcing him to say something in his artistic design of a cake that is against his personal belief; it’s compelled speech which is a very important and well establish concept. And so the Court has agreed to hear this case after being on the cert list for months. Part of that was before Justice Gorsuch got there, but it was also on there for two months after he got there. So I think this is a very very important case. I’d like the panel members to give their votes. So Jeff?
Professor Rosen: So on one hand there’s a very strong sentiment on behalf of the conservative justices for religious freedom, including exemptions from anti-discrimination laws, as we saw in the Hobby Lobby line of cases and the concern about coerced speech as we saw in the license plate case. But it’s not clear whether or not they’ll see this as coerced speech. So the argument for him being a Leonardo of the confectionery arts is that this gentleman really didn’t make cakes for ceremonies of which he disapproved. He didn’t make cakes for Halloween, for celebrating divorces, or cakes that contain alcoholbecause he’s religiously scrupulous against celebrating events that he disapproves of on moral grounds and that might indeed trigger the First Amendment sensibilities not only of the conservative justices and Justice Kennedy but possibly of some liberal justices as well. On the other hand there is this really strong case on the other side and that’s the FAIR case that Chief Justice Roberts presided over early in his term. Remember when the government was saying that law schools had to allow military recruiters to come on campus even though the faculties disapproved of the military’s policies discriminating against gays and lesbians, and lots of law school faculty signed briefs saying it’s outrageous we don’t have to take the military recruiters. Chief Justice Roberts, in one of the major triumphs of his early chief justiceship, convinced the Court to say, no, no one would confuse the speech of the military with the law schools. Everyone understands that when military recruiters come to law schools they’re required to by anti-discrimination laws and they’re not going to impute that speech to the law schools. So the same thing could happen here. If the baker is not going to win you could imagine the Chief Justice Roberts and some of the liberal justices saying no one would confuse the cake with a speech endorsing the wedding. There’s a prominent statement in the bakery saying we have to abide by anti-discrimination laws and everyone will understand the baker’s required to serve all on equal terms and isn’t endorsing the speech. Those are a quick sketch of the two arguments on both sides.
Dean Morrison: So, one question I’ll ask you Ms. Ifill, suppose the baker said I am opposed to interracial marriages. It is constitutionally required that states grant them since 1967 when we had Loving, but I will not make my cakes for them. You can buy them off the shelf but I’m not going to give my artistic rendering. Would that result be the same? The government’s brief, at least on free speech, say well, that’s a more important constitutional interest. Is that something you think the Court’s going to get into or what might the impact of that be?
Ms. Ifill: Well I think it would be deeply dishonest if they don’t get into it because I think that’s the very obvious question that gets asked. JP Schnapper from my office and I, we always talk about this case Neuman v. Piggie Park, the Supreme Court case from 1968 in which the owner of Piggie Park functioned very much like the owner of Masterpiece Cakeshop. He actually believed that his barbecue was his you know was artistic. That was a special recipe. And he would not serve African-Americans, and he would not serve African-Americans in certain kinds of ways. You could walk up to a window and get something around back. So it wasn’t that he wouldn’t serve you at all, which is the same as Mr. Phillips in Masterpiece Cakeshop. He said you know you can get other cakes but I just won’t serve you a wedding cake. And he would not serve African-Americans through the drive through which he thought was his kind of unique thing because there’s no other drive through barbeque place in all of South Carolina. So I think when people try to walk away from this as though somehow these two things are not very much connected you could either think of it in the interracial marriage context or in just the service just in the service and public accommodations context. I think it’s very real I think it’s squarely at the center of this case. It’s interesting that you that the free exercise, the religious piece, has kind of been abandoned as the core argument. And I’m curious—many people I think have their own opinion about it—but I would love to hear what people think about why that is. I mean I had my own concerns about it because this is yet another instance in which we forget that even the owner of Piggie Park said the reason that he would not serve African-Americans was because it was against his religious belief and that he believed that it was an affront to God to have any kind of racial intermixing. That’s what he believed was his religious belief. It wasn’t just because he was this odious racist person he was that as well. But we forget I think at our peril that religion was very often the rationale that was offered by segregationists and others as a reason for why they would not serve African-Americans.
Dean Morrison: So this, whether it’s a religious-based belief, if you start down that line, Jonathan, what kind of problems will the courts have if somebody comes in and said in that case God told me not to serve African-Americans?
Professor Turley: Well first of all when you read these briefs the first thought I thought is what does he makes cakes for? It can’t be Halloween, it can’t be.. it can only be, like, a Kentucky Derby cake. This case only for that reason I must confess that as someone who is more associated with the free speech side of this debate, this is an easy case for me in the sense that for years I’ve argued that there is a collision occurring has been occurring, really building for decades between discrimination laws and free speech, and I’m much more interested in the free speech aspect because I do view these cases as free speech. I do view this as expressive act. And I do believe that free speech can bring clarity now it’s clarity on my terms in the sense that I think most limitations on free speech are unconstitutional. But in my view I think that the Court could well go in that direction, and I think it’s a good direction to go down in that he says that he’s willing to sell cakes he just doesn’t want to make a cake, to make an expressive cake, for a particular purpose. In my view I don’t see a way for us to thread this needle between our anti-discrimination cases and our free speech and religion cases without coming with a, I think, a free speech-based rule that says that regardless whether it’s race or religion or whatever.
Dean Morrison: So you would say you think he could do it on race grounds as well.
Professor Turley: That in terms of being required to say something in the form of creating a cake for that purpose, and I think wedding photographers have the same arguments to make, they have to take a more creative interactive role.
Dean Morrison: Florists?
Ms. Ifill: What about the Safeway cake person? You get the sheet cake and you go to the back and call the person up and you say here’s what I need you to write on it. Right. I’d like purple balloons and I’d like it to say you know best wishes of the day for me and my bride and maybe that person came over from the deli department and now they have to make it.
Professor Turley: Yeah, but the problem is already stores are refusing to make cakes that are viewed as racist or that are viewed, if someone comes forward and says look I really want a Mien Kampf cake my guess is that Whole Foods will say “ehhhhh.”
Ms. Ifill: But that’s about the message. I mean the desire not to—if we think that the Supreme Court’s marriage equality jurisprudence actually means anything—it’s about who the person is and it’s about their dignity and their integrity as a person, as a citizen within this society. So it’s not as though the—It’s different when you’re asking the person actually say something on the cake that is offensive to that person. This is, if you come in and you want to marry, this is about your ability as a citizen to be married.
Professor Turley: Yeah, where we draw the line is you cannot refuse to sell cakes to people because of their status because of who they are. So you can’t say look I don’t want you to have any of my cakes and he’s not saying that actually he’s saying you can buy cake in my store. I just don’t want to make a special cake with something I consider to be religiously objectionable.
Ms Ifill: And so I don’t want to serve you in my restaurant because that would suggest that I endorse race mixing?
Mr. Garre: So I mean what fascinates me about this case as a Supreme Court advocate is the narratives and this is a great example for law students of advocacy and the Court’s going have two very different narratives presented to it. And I think that the petitioners here have done a really surprisingly good job in building this narrative of this is a free speech case. It’s you know the way they bill it is basically New York Times v. Sullivan for baking. One of the most interesting amicus briefs I’ve read in some time is the amicus brief for cake artists. It’s filled with pictures of like cakes.
When this case came to the Court it was viewed as just a sequel to gay marriage cases and now it’s a free speech case and I think they’ve done a very effective and probably smart job of pitching it that way. But on the other side is a very exceptionally compelling narrative of our history as a society, the public accommodations law, I mean sort of the crown jewels of the Supreme Court civil rights decisions as well as, and I think we’ll see more of and we see in the briefs for the other side, that this is really just an end around around the Obergefell decision because again this is really this is a case where we’re you know likely to have sort of a Court of one with Justice Kennedy. And how is he going to react to this. And if he sees this as an assault on his decision in Obergefell, I think he’s going to be more inclined to adopt the respondents’—the plaintiffs in this case—narrative. But if he sees it as really a case about free speech then Justice Kennedy is a very strong proponent of the First Amendment.
Professor Turley: Part of that decision [Obergefell] though Kennedy said First Amendment free speech we’ll give you the protections you need for you for your religious beliefs.
Mr. Garre: And he also said at the very end “it must be emphasized that religion, and those who adhere to religious doctrines, may continue to advocate with the utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.” So, arguably he’s sort of watching this debate.
Professor Rosen: On that point, same-sex marriage was not legal in Colorado at the time. So this guy says he was engaged in a protest against an activity that wasn’t required by the Constitution or by state law.
Ms. Ifill: Can I just say one more thing, This is important and this is where the religion piece comes in because I think this the Court has to decide whether they want to wade into this also. Right. So if you read the Solicitor General’s brief it’s rife with the kind of marriage of— weddings are a religious and secular event. And the question is what parts of it are religious and what parts of it are secular? The cake is like the garter. In the Solicitor General’s brief they talk about the cake ritual. The cake ritual is not religious.
Dean Morrison: He thinks it is.
Ms. Ifill: They weren’t even using it as part of the ceremony. They were already married.
Dean Morrison: Now, if this wasn’t enough, the court has requests on its docket. The case I want to start with was just filed this week. And it’s Evans v. Georgia Regional Hospital, and the question presented is whether discrimination based on sexual orientation is discrimination based on “sex” within the meaning of Title VII, which forbids discrimination in employment. There is a sharp conflict between an en banc decision of the 7th Circuit which recently said that the statute applied, and the 11th Circuit which said it didn’t and a number of other courts further back which said it didn’t. So my prediction is that that if this term wasn’t big enough without that, this case could be easily heard in March or April if they want to move it ahead. Other cert predictions and thoughts about other granted cases?
Professor Rosen: We can’t have this panel without mentioning the US v. Carpenter case which could be the most important digital privacy case of the 21st century. The question is can the government using geolocational cell phone data track for five months without a warrant? And the court in the Jones GPS case split on the question of whether you need a physical trespass to restrain the ubiquitous surveillance. Justice Scalia, writing for five justices, said the fact they walked up the guy’s driveway and stuck the GPS device on the bottom of his car before tracking him for a month made it presumptively a search. But Justice Alito wrote an important concurrence saying it makes no sense to focus on physical trespass because you could just get the guy’s cell phone records. So this for the first time forces the Court to confront the question: can you track someone’s movements in public for five months without physical trespass? And the answer to that question will determine whether tiny drones can fly in the air and follow us from door to door and reconstruct our movements for months, whether other forms of ubiquitous surveillance are permissible.
Predictions are dangerous but I’m going to express modest optimism that this will be a lopsided, bipartisan victory for the privacy side. There are at least five justices on the Court who seemed to say physical trespass isn’t necessary. You have unanimous decisions in cases like Reilly saying that you can’t open a guy’s cell phone on arrest because the cell phone is not like a cigarette packet because it contains so much intimate information about us. On the other hand, there is no physical trespass here and the cell phone records are less granular than the GPS device. So that could be a technicality that could give the Court a way to distinguish Jones and Riley.
Dean Morrison: Greg, you said this was a very important labor case. There’s another very important labor case waiting in the wings. Janus v. AFSCME. This is the case the question of whether union dues can be required of people who are government employees.
Mr. Garre: So you’re right. So the Supreme Court had agreed to hear a case a couple of years ago in order to basically presented the question of whether Abood should be overruled. And the Court agreed to hear which was probably not a good sign for those who support Abood. Justice Scalia was on the bench during argument and it appeared that there were five justices prepared to overrule Abood, and Justice Scalia passed away. So now that case is coming back before the Court and the Court could well agree to hear it.3 I guess one of the things that that is I think going to become pretty interesting very quickly is how much can the Supreme Court handle? I mean between the cases we’ve talked about, and Alan’s right, the Title 7 sexual orientation issue is up there. I mean these are human beings. And at some point I think they’re going to be looking to less contentious cases. That’s kind of pure sport for them, it was sort of surprising they took it up before.
Ms. Ifill: Do you think they’ll take any of the voter I.D. cases, like Texas.
Mr. Garre: Sure. I mean that is what is going up and down and they sort of dodged them when the Court had eight justices so you would think that those would be ripe to come back up.
Professor Turley: I actually would predict Janus is accepted, that’s the Abood case, only because the public employee union cases are sort of like what I hate about Avenger movies, is when you get to the end there’s always one more battle that’s about to happen. You never get to the end of these galactic battles. And so that’s the case since 1977 the Court has taken us to the brink on this issue, and then just three years ago you had five justices saying that they seemed pretty clear, including Scalia, that they were going to put an ice pick through the head of Abood. And I think Gorsuch is going to likely join those existing four justices. So I think they’ve got enough to accept Janus. And I think that they’re going to get it done. And I’d be surprised if they passed on it.
Mr. Garre: I agree with where Gorsuch is probably likely to be. On the other hand, I think there’s a tradition of the Court not wanting to put new justices in a more difficult position of being THE Justice to decide an issue and if the Court grants in that case that’s what’s going to happen.
Dean Morrison: All right. I promised an opportunity for audience questions. I want to begin with the press box over there. Any members of the press that have a specific question first and then we’ll go to others as well.
Todd Ruger: I’m Todd Ruger from CQ Roll Call. This might be for Sherrilyn most. How do you view this upcoming term in terms of the Trump Administration, what’s going on culturally, how many different ways they’re stepping in culturally to these issues and do you see it more as a Trump Administration thing or is it more of a Republican thing—the voter rolls trying to clean those up and the voter ID case you mentioned are these long standing conservative issues getting up there? Or is it the Trump Administration?
Ms. Ifill: Yeah I think we conveniently and understandably so because we’re in such a volatile time and certainly the Trump Administration is unlike anything we’ve seen certainly in modern political history that we treat it as though this is a kind of new moment for the Court.
But there have actually been some concerns I think that the Court has demonstrated certainly in the realm of where I work, in the realm of civil rights, for some years. If you think about the last few terms and you think about Justice Kennedy’s role in the Fair Housing Act case and the Fisher affirmative action case in which he actually flipped his position from Grutter. These are cases that people thought that we would lose and we won and we won because, if you read Justice Kennedy’s opinions in those cases, he identifies that we are at this moment a fracture in the country and that the issue of equality and race discrimination is still with us. And he recognizes it and those cases are decided in the context of what used to be what was occupying us everyday, which was seeing the videos of these police shootings, Charleston, I mean it’s almost like we’ve kind of put that to the side for a second but we shouldn’t. In part because it’s ongoing but because there was already an unease about the state of our country I think that was expressed in some of these opinions from the Court. So I think that the Trump piece has only layered on top of that a deeper recognition of the deep fracture that exists within this country and the concern about that fracture. And I think that the good thing about it is that I think the Court can see it very clearly now as democracy threatening, not just be something about civil rights and black people, but really that there are problems in our democracy with the levers of our democracy that might make them think they have to wade into areas they’d rather not wade into like partisan gerrymandering and so forth. And so I do think that the Trump Administration has cranked up the heat around the importance of the Court standing for the strengthening of democratic principles and pillars that will hold this country together. And I think it would be surprising to me if they didn’t all feel the press of that. That being said these are very contentious issues, and the Court is jealous of its own reputation and it doesn’t want to ruin its reputation by going farther than it feels it should go or that it needs to go in trying to stand up for those principles. And I would say that’s on a bipartisan basis. I do think also that there are justices who see that this is their moment and that they,given the new Court with Gorsuch on it, and that they have an opportunity. And so I think it’s going to be the balancing of all of those things that’s going to be vitally important. And so Chief Justice Roberts who is careful about the institution, about protecting the institution is really going to play a vital role in balancing those considerations.
Kimberly Robinson (Bloomberg): Can one of you guys speak about the New Jersey Sports Betting cases and the implications going forward of having a robust application about the anti-commandeering clauses. Not just in the Trump Administration but for future administration.
Dean Morrison: I was actually surprised that they took the case it seemed quite narrow. And they have some very effective advocates on their side, on both sides of the case. I wouldn’t bet on the outcome.
Mr. Garre: I guess one of the things I would say is, if you look at the court over the last 10 years the Rehnquist Court was viewed as a very sort of pro-federalism court. And it’s that Court, Justice Rehnquist and Justice O’Connor, particularly who sort of led the charge of the adoption of this anti-commandeering principle that federal law can be used to basically force the states to do things. And I think this case is interesting because not only because it involves gambling in sports, but I think it’s a real test of this new Court and the Roberts Court in terms of the convictions that it has for federalism principles. And so far you have to say I think that the Rehnquist Court was a more pro-federalism Court than the Roberts Court. I think Gorsuch could actually tip that a little bit more in the federalism direction, and this case will be a great test for that.
Professor Turley: I also think—to build on that—anti-commandeering has gone through sort of a renaissance with the Court. It was sort of dormant and then when you saw the Roberts decision on health care it had this fantastic federalism section on the individual mandate with very robust belief in states rights and there seems to be a great interest of justices on the anti-commandeering rationale as a sort of a way to hold that. But the problem with that decision by Roberts is that it was sort of a line. He created this robust belief in protecting states rights from all of these threats and then said but then if you just call it a tax none of this matters. So it’s an interesting time for it to come up but there’s obviously an interest in anti-commandeering.
Greg Store: Hi I’m Greg Store with Bloomberg. I wanted to ask a little more about the arbitration case and in particular the impact on discrimination claims. If, as Greg thinks, the employers win this case does it necessarily mean that the same rule applies to Title 7 cases? Sherrilyn, you talked a little bit about injunctions I mean, but that’s a different category. But these three are all wage at hour claims. I’m just wondering would the same thing apply to discrimination.
Ms. Ifill: Yeah it’s a good question and I’m—in case there’s a loss in the case I’m going to say no it doesn’t apply. But I think we are on that march. I think there’s an argument to be made but I think we’re on that march if you put it together you know with some of the Court’s previous cases and I think that’s the great concern is that that would be next up. Right. And so you take concerted action what does concerted action mean I think concerted action in the broadest sense encompasses joined suits and class actions and it’s hard to think through how you can thread that needle if you want to suggest that it doesn’t.
Dean Morrison: If the line you’re thinking about drawing is between federal law and state law claims the Court is well past that line. In the American Express case a few years ago the Second Circuit said well this is a federal claim and the federal antitrust laws trump the Federal Arbitration Act. The Supreme Court said no. No this is consensual and therefore you have to go to arbitration. So I think you’re going to have that problem. Now, the real question is insofar as union based claims are concerned is whether the unions will finally come to the realization that the arbitration versus non-arbitration is something worth fighting about. In the past, they have not been willing to draw their marker at that point, as they have over wages and working conditions and so forth. So to the extent that these are collective bargaining requirements, as opposed to contracts with individual workers, you may see a different something there.
[Unknown Audience Member]: I’ve got two questions. First of all, Jonathan, can you help a little bit articulate a line that the Department of Justice has drawn in Masterpiece to get rid of the slippery slope because I don’t really quite understand that. My other question, when we talk about Kennedy we’ve talked about his role in redistricting, Masterpiece, travel ban. Are there any other of the big cases where he’s going to be key?
Professor Turley: Well that’s really interesting. Both your questions are. I mean this is, as is always the case, this term is coming down to Court of one on critical issues with regard to Kennedy. These happen to be falling right on that fault line for Kennedy and in many of the areas that interest him most. It’s also why I, for years, argue that we should expand the Supreme Court. I think one more year of having a Court of one is ridiculous. I think this court is manifestly too small.
But in terms of the position of the Administration, I was not surprised when they intervened in the way that they did in Masterpiece. They clearly do support a free speech approach in terms of finding a way to thread this difficult needle. I think that, and forgive me if I hijacked your question a bit, I think that the difference with what my friend Jeff said about the FAIR case is that FAIR involved the denial of speech—people coming on to campus who wanted to speak to people who wanted to hear from them. I think that’s a line that likely is going to be drawn. But I think what’s most interesting about Kennedy in the Masterpiece Cake is that Masterpieces sort of going to call him to account. He said in Obergefell that we understand that this is there is big religious and speech issues here. But the First Amendment will protect you. That is you can accept same sex marriage and you still have the First Amendment. This is really calling that debt in many respects the way that this has been framed for the court is going to put his words in sharp relief and I think that Kennedy may in fact find his earlier position to be the one that he has to go with, that he has to thread this. He’s a big advocate of free speech. He’s also a huge advocate of same-sex marriage and gay rights. And I think he’s going to view this as the way to thread that needle.
Ms. Ifill: Does it require the full embrace of the idea of the custom cake because I agree with Greg. I think you read the briefs you can’t doubt the sincerity of Joe Phillips and what he does when he makes these cakes or what he believes about them. Right. So does it require him in order to avoid the slippery slope that just simply anybody can invoke this that that it really requires a person who has who is engaged in that kind of artistic, or what he would deem an artistic expression, for Kennedy to be able to do that.
Professor Turley: I would think he would do that and I think he would focus on issues of expression so you cannot deny people because of who they are, the right to buy your products, go to your restaurant, drink at your bar, but that there are certain—and this will narrow it—there are certain expressive acts. Photographers I think are actually one of the more significant arguments in terms of expressive acts. The photographer has to really be part of the wedding party really try to capture things in a particular way, it is an artistic and expressive act. So I think that’s where they’ll probably try to create that.
Ms. Ifill: That’s hard because then is the deejay. You know it’s the guy who does the electric slide at all these.
Dean Morrison: The only thing we don’t have to worry about is the slippery slope. There are not going to be a lot of people who are in business today to make money and who are going to say that their religious or moral scruples will enable them to turn down good business.
Professor Turley: That’s what—the law of economics makes that argument that these are what they call a taste and eventually you’ll be forced out of the market if you have marginal on the stuff.
Ms. Ifill: But our entire history shows us that racism and discrimination is irrational that people do it against their economic interests. So, and particularly in this case where he’s suggesting it’s connected to his religious belief and then your economic interest is actually irrelevant to that because you’re saying it’s about your deeply held religious beliefs.
Professor Turlery: But Sherrilyn, how do you handle the fact that if you have the Nazi comes in and say I want that Mein Kampf cake, can you really say no? But I can’t say no to this other couple.
Ms. Ifill: I think that everything about our discrimination law is that you can’t discriminate against people based on who they are but you can based on what they believe. Right I mean that you can say I don’t want to write Mein Kampf, but I can’t say I won’t do a cake for a white person. I mean I won’t do a cake for a black person. And to me when two gay people come in and say I want the marriage cake, they’re talking about their very reasonable belief, they’re talking about their actual selves, not just about a statement about who they are. I think that’s how I’m reading the marriage equality briefs,and I think that’s what Kennedy has to deal with. He has to he has to decide is this an end run around Obergefell or not, and he has to clearly state why it’s not. I know what he said about the First Amendment but if you start playing out all the different context where it could happen it could very well—
Dean Morrison: That’s what happens when you engage in writing dicta. Any final words, Jeff, Greg?
Mr. Garre: I think looking at this term, we’ve talked about a few cases but I think it’s also important to take a step back and look at the Court generally and two things that I think are particularly interesting about this term. One is we have a new Justice, and you know he’s been on the Court for one sitting. But now he’s got all these issues and so it’s going to give us an opportunity to see more about him. And the other is it’s often said that when you have one new Justice you have an entirely new Court and the Court behaves in weird ways. When Justice Thomas came to Supreme Court everyone thought the court was going to become much more conservative. But strangely enough what he did was he pushed Justice O’Connor to the left, and so one of the really interesting things to see about this term is Justice Gorsuch being on the Court, one of Justice Kennedy’s former law clerks, is he going to make Justice Kennedy more comfortable being with the strong majority of five because the conservatives really can only go as far as Justice Kennedy is willing to go, or will all these contentious cases and will a push on the right actually end up pushing Justice Kennedy more to the left and that’s going to be fascinating to watch.
Dean Morrison: And that is the final word. Thank you all.
- The Court removed this case from the calendar on September 25, 2017 due to the Trump Administration’s roll out of Travel Ban 3.0. The Court asked for parties to submit briefs relating to mootness concerns. See Amy Howe, Justices take travel ban cases off October argument, SCOTUSblog (Sept. 25, 2017, 3:05 PM), http://www.scotusblog.com/2017/09/justices-take-travel-ban-cases-off-october-argument-calendar/.
- Nicholas Stephanopoulos, Here’s How We Can End Gerrymandering Once and for All, The New Republic (Jul. 2, 2014), https://newrepublic.com/article/118534/gerrymandering-efficiency-gap-better-way-measure-gerrymandering.
- The Court agreed to hear Janus v. AFSCME on September 28, 2017. See Amy Howe, Justices issue orders from “long conference” (UPDATED), SCOTUSblog (Sept. 28, 2017, 10:54 AM), http://www.scotusblog.com/2017/09/justices-issue-orders-long-conference/.