Fictional Attorney of the Month: Officer Shrift

Norton Juster's The Phantom Tollbooth is a silly and delightful book. Just over 50 years old, it recounts the exploits of a bored boy, Milo, who finds a tollbooth in his bedroom one day. The tollbooth whisks him away to a fantastic land of grammar and language and numbers, and he is aided by the watchdog Tock. He meets a host of amusing characters, including Officer Shrift. He is, appropriately enough, "the shortest policeman Milo had ever scene. He was scarcely two feet tall and almost twice as wide, and he wore a blue uniform with white belt and gloves, a peaked cap, and a very fierce expression." (You can see that the illustration by Jules Feiffer captures this image perfectly.)

But Officer Shrift styles himself a lawyer at one point, and while he may not be an attorney in the formal sense, he's close enough to serve as the Fictional Attorney of the Month. (And it offers a small separation-of-powers lesson, too.) 

"You have committed the following crimes," he continued: "having a dog with an unauthorized alarm, sowing confusion, upsetting the applecart, wreaking havoc, and mincing words."

"Now see here," growled Tock angrily.

"And illegal barking," he added, frowning at the watchdog. "It's against the law to bark without using the barking meter. Are you ready to be sentenced?"

"Only a judge can sentence you," said Milo, who remembered reading that in one of his schoolbooks.

"Good point," replied the policeman, taking off his cap and putting on a long black robe. "I am also the judge. Now would you like a long or a short sentence?"

"A short one, if you please," said Milo.

"Good," said the judge, rapping his gavel three times. "I always have trouble remembering the long ones. How about 'I am'? That’s the shortest sentence I know."

Everyone agreed that it was a very fair sentence, and the judge continued: "There will also be a small additional penalty of six million years in prison. Case closed," he pronounced, rapping his gavel again.

Citizens United in Affordable Care Act litigation, Part II

Following up on my earlier coverage of the 10th Circuit's opinion citing Citizens United v. Federal Election Commission, the 3d Circuit has concluded that Citizens United  does not compel a finding that a for-profit corporation can exercise religion. Here are excerpts from the majority's opinion (at Part IV.A):

Citizens United is thus grounded in the notion that the Court has a long history of protecting corporations' rights to free speech. 

... 

We must consider the history of the Free Exercise Clause and determine whether there is a similar history of courts providing free exercise protection to corporations. We conclude that there is not. In fact, we are not aware of any case preceding the commencement of litigation about the Mandate, in which a for-profit, secular corporation was itself found to have free exercise rights. Such a total absence of caselaw takes on even greater significance when compared to the extensive list of Supreme Court cases addressing the free speech rights of corporations.

(I interject here to remark that this line of reasoning does not strike me as terribly persuasive. First, there are numerous instances in which the absence of judicial precedent is not a justification for rejecting the argument of the parties. This distinction strikes me as too narrow a reading of Citizens United . It may be that the two are distinguishable, but absence of precedent is not among them. Second, by asserting that the corporation is "secular," it's hard to get around the conclusion that the majority opinion has, in circular fashion, presumed the conclusion.)

We are unable to determine that the "nature, history, and purpose" of the Free Exercise Clause supports the conclusion that for-profit, secular corporations are protected under this particular constitutional provision. Even if we were to disregard the lack of historical recognition of the right, we simply cannot understand how a for-profit, secular corporation--apart from its owners--can exercise religion. . . .

In urging us to hold that for-profit, secular corporations can exercise religion, Appellants, as well as the dissent, cite to cases in which courts have ruled in favor of free exercise claims advanced by religious organizations. See, e.g. , Gonzalez v. O Centro Espirita Beneficente Uniao Do Vegetal ; Church of the Lukumi Babalu Aye, Inc. v. Hialeah . None of the cases relied on by the dissent involve secular, for-profit corporations. We will not draw the conclusion that, just because courts have recognized the free exercise rights of churches and other religious entities, it necessarily follows that for-profit secular corporations can exercise religion. As the Supreme Court recently noted, "the text of the First Amendment . . . givees special solicitude to the rights of religious organizations." Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC . That churches--as means by which individuals practice religion--have long enjoyed the protections of the Free Exercise Clause is not determinative of the question of whether for-profit, secular corporations should be granted these same protections.

(some citations omitted) 

(I interject again with two problematic point in this reasoning. First, the majority concludes that even though courts have recognized X, "[w]e will not draw the conclusion" that "it necessarily follows" that the courts will recognize Y. That may be true, but that does not explain why the two should be treated differently--except, as noted earlier, courts haven't done so previously, which is just restating a fact and is not a justification. Second, the majority does not claim that "churches" exercise religion, but that "churches" are a "means by which individuals practice religion"; but, in the paragraph before that, it claims that it "cannot understand how a for-profit, secular corporation--apart from its owners--can exercise religion." The distinction between whether members of a corporate form, whether a church or a for-profit corporation, can exercise religion within that corporate form is not readily explained in the majority's opinion, except that the church is the more common form for the exercise of religion.)

Since Conestoga is distinct from the Hahns, the Mandate does not actually require the Hahns to do anything. All responsibility for complying with the Mandate falls on Conestoga. Conestoga "is a closely-held, family-owned firm, and [we] suspect there is a natural inclination for the owners of such companies to elide the distinction between themselves and the companies they own." But, it is Conestoga that must provide the funds to comply with the Mandate—not the Hahns. We recognize that, as the sole shareholders of Conestoga, ultimately the corporation‘s profits will flow to the Hahns. But, "[t]he owners of an LLC or corporation, even a closely-held one, have an obligation to respect the corporate form, on pain of losing the benefits of that form should they fail to do so." "The fact that one person owns all of the stock does not make him and the corporation one and the same person, nor does he thereby become the owner of all the property of the corporation." The Hahn family chose to incorporate and conduct business through Conestoga, thereby obtaining both the advantages and disadvantages of the corporate form. We simply cannot ignore the distinction between Conestoga and the Hahns. We hold . . . that the free exercise claims of a company‘s owners cannot "pass through" to the corporation.

 (citations omitted)

(This holding is expressly contrary to the logic--but, admittedly, not the holding--articulated in Citizens United , where the majority concluded that the regulation, if allowed, "would permit Government to ban political speech simply because the speaker is an association that has taken on the corporate form.") 

There are other excerpts, and a dissenting opinion addressing the matter, if you're interested in reading the whole 96-page opinion.

How North Carolina voter ID opponents are undermining a Voting Rights Act defense

North Carolina is considering a proposed voter identification law. It requires voters to submit one of a limited number of forms of identification before voting.

These laws have been enacted with increasing frequency around the United States over the last decade. But some of the laws are more onerous than others: some require a more limited subset of identification that requires more effort for individuals to obtain.

The evidence has been mixed.  There's relatively little documented in-person voter fraud, the kind that would be prevented by voter identification laws; but there's little evidence of a decline in voter turnout after a voter identification law takes effect. (This greatly oversimplifies the debate, as supporters and opponents have other, quite valid, reasons--but this post isn't one about the merits or drawbacks of voter identification laws.)

Some writers are upset about the bill. Ari Berman blogging at The Nation calls the bill "extreme voter suppression" that "could disenfranchise 318,000," one-third of them African-Americans, "guaranteeing . . . less voter participation," in part because "North Carolina no longer has to clear these voting changes" under the Voting Rights Act. Dahlia Lithwick blogging at Slate identifies a "bastion of voter suppression" now that North Carolina no longer had to "check [its] crazy" under the VRA's preclearance regime, likening "the beatings, deaths, police-led violence and brutality" of the Civil Rights era with "how egregious state efforts at vote suppression have been and continue to be, and how extensive the record of brazen misconduct remains." Scott Keyes blogging at ThinkProgress explains that the bill is a "wrecking ball" permitted after the VRA has made "it easier for states with a history of racial discrimination like North Carolina to enact new voter suppression laws."

The Supreme Court handed down a decision in Shelby County v. Holder last month invalidating Section 4 of the VRA. The coverage formula, the Supreme Court explained, hadn't been legislatively updated in approximately 40 years. The country, the Court explained, has changed: voter participation among minority voters has increased dramatically; the gap between white voters and black voters has declined, and in some places black voter turnout exceeds white voter turnout; and so on. As the VRA preclearance regime was justified only because of "exceptional conditions" in those covered jurisdictions, the Court reasoned, the absence of those conditions--or, a diminution of those conditions in relation to the rest of the country--rendered the formula inadequate for today.

And so, the lament goes, if only the coverage formula under the VRA had not been unconstitutional, 40 counties in North Carolina would still be covered, and this "voter suppression" bill of voter identification would require preclearance by the Department of Justice.

But what about Pennsylvania? 

Pennsylvaia recently enacted a voter identification law. Mr. Berman blogged that the law was "unjust, unnecessary and discriminatory" because, among other reasons, "voters in predominately black precincts in Philadelphia are 85 percent more likely than voters in predominately white precincts to lack state-issued ID." Ms. Lithwick blogged that voter identification laws (like Pennsylvania's) "look an awful lot like methods pioneered by the white supremacists from another era that achieved the similar results" from politicians "capitalizing on the remnants of Jim Crow," as such laws are "so clearly reminiscent of the Jim Crow era." Mr. Keyes blogged that the Pennsylvania voter identification law "could bar hundreds of thousands, predominantly minorities and the elderly, from the ballot box," conceding that "Pennsylvania, however, is not subject to the Voting Rights Act and does not need preclearance from the Justice Department."

So, why not? If Pennsylvania (and states like it) are enacting  "Jim Crow" "voter suppression" laws, and if their conduct is as egregious as North Carolina's, then why lament the loss of the VRA for North Carolina, without words for covering jurisdictions like Pennsylvania?

Therein lies the logical problem (and it takes a bit of formal logic to get there, so stick with this even-longer post).  The Court in Shelby County  found that the covered and uncovered jurisdictions just weren't so different anymore. Congress hadn't adequately justified treating the covered jurisdictions differently, subjecting them to an "exceptional," "unprecedented" remedy of preclearance.

So the more North Carolina voter identification opponents lament the loss of the VRA, the more they undermine it when opposing other voter identification laws. North Carolina, for instance, is acting like the legislatures in many other states. Its election laws are not terribly different than what other states are proposing. The Court, in other words, was right: the fortuitous fact that counties in North Carolina used impermissible voting laws during the Johnson and Nixon administrations hardly should mean that its attempt to enact a law should be stymied when a comparable law in Pennsylvania has no such coverage.

Now, the immediate rejoinder is fourfold: North Carolina's law might be more onerous than Pennsylvania's, which justifies a disparate treatment; North Carolina's law is a bundle of "voter suppression" tactics; one voter identification law cannot be the basis on which to examine the difference in covered and uncovered jurisdictions; and this event proves that more coverage is needed, not that no coverage is needed.

Is North Carolina's voter identification law more onerous? Well, if Pennsylvania's and laws like it are "discriminatory" and akin to "Jim Crow" and affects "predominantly minorities," it's hard to say that the quantum of outright discrimination, if true as alleged, justifies an exemption for one discriminator but not the other.

Is North Carolina's bundle of "voter suppression" tactics distinguishable? Perhaps. But, again, even if the quantum of outright discrimination differs, the rhetoric employed over voter identification laws writ large, and Pennsylvania's in particular, suggests that these jurisdictions should not be treated differently.

Is it fair to evaluate the entirety of the VRA coverage formula under this single debate over voter identification laws? Maybe not. But if these tactics are as egregious as alleged, these kinds of laws are at the core of the kinds of "voter suppression" tactics akin to "Jim Crow" that the VRA was designed to eradicate. It's hard to think of the kinds of laws that have created as much passion as these laws. Occasionally, early in-person voting or same-day registration laws are discussed, but the recency and increase in voter identification laws make it a good proxy for the debate. 

Finally, does this mean that we need to increase  the scope of the coverage formula under the VRA? This creates a problem for VRA supporters, too. As South Carolina v. Katzenbach  explains, the remedy in Section 5 was an "uncommon exercise of congressional power," but "exceptional conditions" and "these unique circumstances" justified the legislation. With few exceptions, most agree that conditions today are dramatically better for minority voters than they were in 1965, both in covered and uncovered jurisdictions.

So if a new coverage formula increased  the number of covered jurisdictions, the Court would face two dilemmas: whether the new Section 4 formula was rational (which, given an adequate and thoughtful congressional record, it may well be), and then whether the remedy in Section 5 is constitutional. And if the "exceptional," "unique" circumstances of 1965 are dramatically better for minority voters, then it's going to be extremely difficult for proponents to justify expanding  the preclearance regime.

Preclearance, after all, is a fairly drastc remedy. It halts the enforcement of a law that the jurisdiction otherwise had the authority to enact. It's the kind of proposal that was ultimately rejected at the constitutional convention. The Reconstruction Amendments give Congress a new power to try unique remedies, but that power, of course, is not unfettered.

So if the conditions have improved, it's difficult to argue that more  jurisdictions should be covered, under either the Court's most recent or earliest precedents.

Which leaves opponents of North Carolina's voter identification law in a difficult position if they lament the loss of the coverage formula of the VRA. They are essentially conceding that North Carolina, previously covered, is behaving substantially similar to previously uncovered jurisdictions. But they reject that North Carolina should remain uncovered. So if North Carolina is going to be covered, then similarly-situated jurisdictions should also be covered, too. And if that's the case, it would almost assuredly include more jurisdictions. But that cannot hold, either, if conditions have improved. And perhaps there are non-voter identification law-related reasons to cover North Carolina but not Pennsylvania. But that is not the argument being made: the "voter suppression" tactic is a voter identification law in both covered and uncovered jurisdictions, and the loss of the VRA is lamented specifically in the context of North Carolina's voter identification law.

And so, opponents of North Carolina's voter identification law may well have a very valid claim on the merits of whether voter identification is a good idea. But when it comes to the Section 4 formula, the lament mirrors the lament of previously-uncovered Section 4 jurisdictions--and it ultimately undermines the very case for Section 4 if covered and uncovered jurisdictions are behaving similarly.

Where are they now? Supreme Court clerks, OT2003

Who isn't fascinated with any story about Supreme Court clerks, "The Elect"?

Several years ago, David Lat followed up on the lives of Supreme Court clerks a few years removed from their clerkships. I thought a ten-year retrospective examining where clerks have gone might be of interest. His caveats then are as true as mine are today: this list is probably unreliable and has not been fact-checked in any way, except for the links provided (and these links often aren't the best source material).

Without further ado, the clerks from the Supreme Court, October Term 2003:

Chief Justice William H. Rehnquist

Leon F. DeJulius (Notre Dame 2002 / O’Scannlain), partner at Jones Day

Courtney Gilligan Saleski (George Washington 2002 / Magill), partner at DLA Piper

Aaron M. Streett (Texas 2002 / Sentelle), partner at Baker Botts

Justice John Paul Stevens

Leondra R. Kruger (Yale 2001 / Tatel), Acting Principal Deputy Solicitor General, DOJ

Amanda C. Leiter (Harvard 2000 / Tatel / Gertner (D. Mass.)), professor at American

Margaret H. Lemos (NYU 2001 / Lipez), professor at Duke

Benjamin C. Mizer (Michigan 2002 / J. Rogers), counsel in the Office of Legal Counsel, DOJ

Justice Sandra Day O’Connor

Janet R. Carter (NYU 2001 / Posner), counsel at WilmerHale

Sean C. Grimsley (Michigan 2000 / H. Edwards), partner at Bartlit Beck

RonNell A. Jones (Ohio State 2000 / W. Fletcher), professor at BYU

Sambhav N. Sankar (Berkeley 2000 / W. Fletcher / L. Pollak (E.D. Pa.)), counsel at GE

Justice Antonin Scalia

Benjamin L. Hatch (Harvard 2002 / Luttig), AUSA, EDVA

C. Scott Hemphill (Stanford 2001 / Posner), professor at Columbia

Robert K. Kry (Yale 2002 / Kozinski), partner at MoloLamken LLP

Kevin C. Walsh (Harvard 2002 / Niemeyer), professor at Richmond

Justice Anthony M. Kennedy

Bertrand-Marc Allen (Yale 2002 / Luttig), President, Boeing China

Edward C. Dawson (Texas 2002 / Carnes), fellow at LSU

Orin Kerr (Harvard 1997 / Garth), professor at George Washington

Chi T. Steve Kwok (Yale 2002 / Kozinski), AUSA, SDNY

Justice David H. Souter

Julian D. Mortenson (Stanford 2002 / Wilkinson), professor at Michigan

Samuel J. Rascoff (Yale 2001 / Leval), professor at NYU

Jeannie C. Suk (Harvard 2002 / H. Edwards), professor at Harvard

Gregory G. Rapawy (Harvard 2001 / Lynch), partner at Kellogg Huber

Justice Clarence Thomas

Richard M. Corn (Chicago 2002 / Luttig), associate at Proskauer

John A. Eisenberg (Yale 2002 / Luttig), partner at Kirkland & Ellis

Diane L. McGimsey (Berkeley 2002 / Wilkinson), partner at Sullivan & Cromwell

Hannah Clayson Smith (BYU 2001 / Alito), counsel at The Becket Fund for Religious Liberty

Justice Ruth Bader Ginsburg

Abbe R. Gluck (Yale 2000 / R. Winter), professor at Yale

Aziz Z. Huq (Columbia 2001 / Sack), professor at Chicago

Anne Joseph O’Connell (Yale 2000 / S. Williams), professor at Berkeley

Neil S. Siegel (Berkeley 2001 / Wilkinson), professor at Duke

Justice Stephen Breyer

Ariela M. Migdal (NYU 2001 / H. Edwards), counsel at the ACLU

Pratik Shah (Berkeley 2001 / W. Fletcher), assistant to the Solicitor General, DOJ

Alexandra M. Walsh (Stanford 2001 / Garland), partner at Paul Weiss

Davis J. Wang (Harvard 2002 / Boudin), partner at Sullivan & Cromwell

A few thoughts: 

Suppose we divide these justices among "conservative" (Rehnquist, O'Connor, Kennedy, Scalia, Thomas) and "liberal" (Stevens, Souter, Ginsburg, Breyer). (These are, of course, imperfect terms.) Suppose we further divide the clerks into three practice areas: private practice, academia, and government/public interest.

That gives us 35 clerks, 19 clerking for "conservative" justices and 16 for "liberal justices."

In private practice, the decisive edge goes to clerks to "conservative" justices, with 11 to just 3 of the clerks to "liberal justices." Chief Justice Rehnquist (3 for 3) and Justice Thomas (3 for 4) clerks lead the way. 

For academia, an outright majority of clerks to "liberal" justices took that route (9 of 16), compared to just 5 for the clerks to "conservative" justices. Justice Ginsburg's clerks lead the way: not only did 4 for 4 enter academia, but all 4 are teaching at so-called "top 14" schools.  The same "top 14" standard holds true for the 3 former clerks to Justice Souter, too.

In government or public interest, it's 4 for clerks to "liberal" justices, 3 for clerks to "conservative" justices. 

Obviously, this anecdata for a single year's set of clerks is not worth much of anything except, perhaps, confirmation bias, rampant extrapolation, and so on. But isn't that what the Internet makes so amusing, even when meaningless? 

Can Floridians recall Senator Marco Rubio?

Some Florida conservatives want to recall Senator Marco Rubio because of his support for a proposed immigration law. Florida currently lacks a recall mechanism for United States senators in its law, so a law would need to be enacted. But can Florida enact such a law?

Probably not. 

The major case in this area is Committee to Recall Robert Menendez from the Office of U.S. Senator v. Wells  in New Jersey in 2010.  The New Jersey Supreme Court concluded by a 4-2 margin that a recall was an additional qualification to the office of a United State senator, and, as additional qualifications are prohibited, the recall mechanism must fail.

While the New Jersey Supreme Court has not been a model of fidelity to legal texts in the election law context, it relies primarily on the broad pronouncements from the United States Supreme Court in Powell v. McCormack  (refusal to seat a member for his involvement in a scandal) and U.S. Term Limits v. Thornton  (refusal to list a candidate for office after the candidate met a term limit). It's possible that the Court might view those cases as different in kind from a recall mechanism after an individual has been elected and seated (there were, after all, dissenting justices in U.S. Term Limits ), but there's no guarantee.

Regardless, there's also the prior question of whether a recall could even appear on the ballot. Some state judiciaries reserve judgment on the constitutionality of ballot initiatives (in this case, it would be a recall mechanism) until after it passes: it's an element of judicial restraint, as the political process may work itself out and render the need for judicial involvement moot; and it allows an expression of democracy to occur at the polling place even if the matter is unconstitutional. But other state judiciaries recognize the cost and political uncertainty of such matters and allow for a prior adjudication.

Florida tends to have a middle ground on this issue:

If a proposed amendment to the state Constitution by its terms specifically and necessarily violates a command or limitation of the Federal Constitution, a ministerial duty of an administrative officer, that is a part of the prescribed legal procedure for submitting such proposed amendment  to the electorate of the state for adoption or rejection, may be enjoined at the suit of proper parties in order to avoid the expense of submission, when the amendment, if adopted, would palpably violate the paramount law and would inevitably be futile and nugatory and incapable of being made operative under any conditions or circumstances. But if a duly proposed amendment to the Constitution may, if adopted, conceivably be valid in part or as applied to some conditions, its submission to the voters should not be enjoined, because in such a case the State has a right to the submission and, if it is adopted, to the operation of the amendment as far as it may legally be made effective. 

If it is not clearly shown that by its terms the proposed amendment to the state Constitution, as an entirety, expressly and specifically violates some command or limitation of the Federal Constitution so as to render it wholly void, or that the proposed amendment is otherwise wholly incapable of operation, its submission to the electorate of the state for adoption or rejection as required by the Constitution should not be enjoined. even though, if adopted, it may in appropriate procedure by proper parties, allegations of facts, and proof or admissions, be shown that the amendment violates paramount federal law and is therefore inoperative to the extent that it is duly shown to be invalid. 

Gray v. Winthrop, 156 So. 270, 272 (Fla. 1934).

In short, Florida cours refused to enjoin ballot measures that are not invalid in their entirety; but if the measure would "necessarily violate[]" the federal Constitution, it would enjoin it.

That means that if the recall mechanism is unconstitutional (and it may be), a Florida court may enjoin it from appearing on the ballot. While other states may allow voters to recall a senator, then invalidate the recall after the election, it seems like that Florida would act before the election.

Of course, the Florida courts may reach a different conclusion than the New Jersey courts and find the recall constitutional, which would set up a case before the United States Supreme Court. 

But for supporters of a recall mechanism who want to get Florida to enact such a law in the first place, it's useful to recognize the substantial likelihood that even a successful recall effort would find trouble ahead. 

New proposed corporate disclosure rules, 501(c)(4) limits

Right on the heels of my analysis of how attorneys at major law firms contributed to political candidates comes a new proposal on disclosure.

InsidePoliticalLaw notes that twenty Democrats in the House have introduced legislation to amend campaign finance laws. Two of the provisions are significant.

The first would require corporate disclosure:

A corporation which submits regular, periodic reports to its shareholders and a labor organization which submits regular, periodic reports to its members shall include in each such report, in a clear and conspicuous manner . . . the disbursements made by the corporation or labor organization for covered political activity during the period covered by the report . . . . 

Shareholders have pursued corporate disclosure of political activity with increasing frequency.  This legislation would essentially usurp those now-localized events at the individual corporate or labor union level and mandate disclosure of corporate spending.

But as Kevin Shortill notes, ambiguity in the proposed legislation (e.g., labor unions are not required to submit "regular, periodic reports") suggests that the scope of disclosure may actually be "illusory."

The second would limit 501(c)(4) spending on political activity to a 10% threshold. 501(c)(4)s are currently subject to a 50% threshold. The moves comes shortly after the IRS scandal in which the IRS began examining the legitimacy of 501(c)(4) organizations because it believed that many (particularly conservative) organizations may not actually be "social welfare" organizations for purposes of the tax code. And it comes after an increase in the number of such organizations taking advantage of exemption from disclosure after the Supreme Court's decision in Citizens United. A dramatic decrease in the percentage of 501(c)(4) spending that could be used on political activity would likely shift political resources elsewhere.

The fate of such proposals, even if relatively modest (or even "illusory"), remains uncertain in a contentious political chamber. But unlike wrong approaches, this one, at least, has the hallmarks of the type of legislation we may expect to see in the future--and, perhaps, achieve success.