Vote counting in Hobby Lobby

The complexity of the balancing test in the Religious Freedom Restoration Act, and the numerous factors at play in the Burwell v. Hobby Lobby litigation, has yielded some complexity in addressing what the Court actually found. (PDF here.) It's widely reported as a 5-4 opinion, but it's somewhat more complicated than that. Here's a quick guide to counting the votes.

By a vote of 5-2 (with 2 justices abstaining), the Court found that RFRA applies to closely-held for-profit corporations.

The majority opinion by Justice Alito concludes that RFRA so extends; Justice Ginsburg (joined by Justice Sotomayor) in dissent rejects that view. Justices Breyer and Kagan abstained from this portion of the decision.

By a vote of 9-0 (sort of), the Court found that the religious beliefs of the companies were sincerely held.

Part of this doesn't matter as much, because it seems irrelevant to the dissent in its ultimately analysis where the parties fail all other tests. But the dissenting opinion acknowledges, "I agree with the Court that the Green and Hahn families' religious convictions regarding contraception are sincerely held." (Dissenting slip op. at 21.) It is not clear that the dissent would directly extend those religious beliefs to the corporation, except arguendo, due to two dissenting justices' conclusions that RFRA does not apply to those families' closely-held for-profit corporations. But its language later in that opinion applies to Hobby Lobby and Conestoga Wagon, too. Consider: "I would conclude that the connection between the families' religious objections and the contraceptive coverage requirement is too attenuated to rank as substantial. The requirement carries no command that Hobby Lobby or Conestoga purchase or provide the contraceptives they find objectionable." (Dissenting slip op. at 22-23.)

By a vote of 5-4, the Court found that the "contraceptive mandate" substantially burdened the companies.

This one is pretty easy to parse out of the opinion.

By a vote of 5-0 (with 4 justices assuming arguendo), the Court found that the government had a compelling interest in establishing the "contraceptive mandate."

The majority opinion of Justice Alito assumes without deciding that there is a compelling government interest in providing contraceptive access to women. (Part V-A.) Justice Kennedy's concurring opinion accepts the government's interest, and Justice Ginsburg's dissenting opinion (joined by Justices Breyer, Sotomayor, and Kagan) notes it in a footnote. (Dissenting slip op. at 24-25.) And the four dissenting justices found such an interest.

By a vote of 5-4, the Court found that the "contraceptive mandate" was not narrowly tailored.

This one, too, is pretty easy to parse out of the opinion.

Citizens United in Affordable Care Act litigation, Part VII

Following up on Part VI, we now have the Supreme Court's opinion in Burwell v. Hobby Lobby (PDF).

At oral argument (PDF), no one mentioned the Court's decision in Citizens United. That's probably appropriate, because Hobby Lobby turns primarily on a statute (i.e., the Religious Freedom Restoration Act), not the First Amendment. Granted, that statute purported to incorporate (and modify) the Supreme Court's earlier First Amendment jurisprudence--but that wasn't what the justices seemed to focus on. But that's where the justices appeared to have some of the most difficulty: deciding what, exactly, that jurisprudence may have included. (And there is voluminous analysis across the Internet on this.)

Indeed, the only mention of Citizens United arose in a fleeting mention in Justice Ginsburg dissent:

Corporations, Justice Stevens more recently reminded, "have no consciences, no beliefs, no feelings, no thoughts, no desires." Citizens United v. Federal Election Comm'n.

For previous coverage see:

Part I

Part II

Part III

Part IV

Part V

Part VI

(By the way, an interesting note for timing purposes: the Tenth Circuit was the first federal appellate court to reach this issue, last June. Cert was granted, and the case was then scheduled for oral argument on March 25. This June, the Tenth Circuit is the first federal appellate court to reach the issue of the constitutionality of marriage amendments post-Windsor.)

McCutcheon in non-election law litigation

In McCullen v. Coakley (PDF), the Supreme Court found that a Massachusetts law prohibiting congregating within 35 feet of abortion clinics to be in violation of the First Amendment's guarantee of the freedom of speech. The Court referred to its recent opinion in McCutcheon v. Federal Election Commission (PDF).

The basis? One of process. Chief Justice Roberts wrote the plurality in McCutcheon, in which he refused to decide which level of scrutiny to use, concluding that the campaign finance restriction at issue failed either proposed test. He also wrote the majority in McCullen, in which there was a question about which test should apply:

The Court does sometimes assume, without deciding, that a law is subject to a less stringent level of scrutiny, as we did earlier this Term in McCutcheon v. Federal Election Commission. But the distinction between that one and this one seems clear: Applying any standard of review other than intermediate scrutiny in McCutcheon--the standard that was assumed to apply--would have required overruling a precedent. There is no similar reason to forgo the ordinary order of operations in this case.

Justice Scalia, who joined the plurality in McCutcheon, was not convinced in his opinion concurring in the judgment in McCullen:

Just a few months past, the Court found it unnecessary to "parse the differences . . . between two [available] standards" where a statute challenged on First Amendment grounds "fail[s] even under the [less demanding] test." McCutcheon. What has changed since then? Quite simple: This is an abortion case, and McCutcheon was not.[fn.2] By engaging in constitutional dictum here (and reaching the wrong result), the majority can preserve the ability of jurisdictions across the country to restrict antiabortion speech without fear of rigorous constitutional review. With a dart here and a pleat there, such regulations are sure to satisfy the tailoring standards applied in . . . the majority's opinion.

[fn.2]: The Court claims that McCutcheon declined to consider the more rigorous standard of review because applying it "would have required overruling a precedent." That hardly distinguishes the present case, since, as discussed later in text, the conclusion that this legislation escapes strict scrutiny does violence to a great swath of our First Amendment jurisprudence.

Fictional Attorney of the Month: The Man of Law

View fullsize

Chaucer and the Man of Law, depicted by Ezra Winter in a Library of Congress mural.

Chaucer's Canterbury Tales chronicles a group of Christians on a pilgrimage to Canterbury. To pass the time, the travelers tell stories. The narrator dutifully reports each tale, and the opening prologue describes the variety of pilgrims.

One is the Man of Law. Consider how the narrator describes him (and don't miss the "fee simple" pun):

A sergeant of the lawe, war and wys,
That often hadde been at the parvys,
Ther was also, ful riche of excellence.
Discreet he was and of greet reverence --
He semed swich, his wordes weren so wise.
Justice he was ful often in assise,
By patente and by pleyn commissioun.
For his science and for his heigh renoun,
Of fees and robes hadde he many oon.
So greet a purchasour was nowher noon:
Al was fee symple to hym in effect;
His purchasyng myghte nat been infect.
Nowher so bisy a man as he ther nas,
And yet he semed bisier than he was.
In termes hadde he caas and doomes alle
That from the tyme of kyng william were falle.
Therto he koude endite, and make a thyng,
Ther koude no wight pynche at his writyng;
And every statut koude he pleyn by rote.
He rood but hoomly in a medlee cote.
Girt with a ceint of silk, with barres smale;
Of his array telle I no lenger tale.

The most scathing indictment of the man comes in the small line, "And yet he semed bisier than he was." It's a soft reminder today for hectic professionals: the appearance of busyness is often confused with actual busyness.

The Man of Law's tale is not as memorable as, say, the Wyfe of Bath's Tale, or the Knight's Tale, but his tale of adventure and romance is uplifting.

The unnecessariness of Noel Canning

When President Barack Obama filled a few vacancies on January 4, 2012, through a purported exercise of the recess appointments power, it reflected a few things.

Had he filled those vacancies just 24 hours earlier, between congressional sessions, they almost assuredly would never have faced a viable legal challenge. But if he'd done that, the interim appointment would have lasted just one year instead of two. So it reflected a deliberate choice--one of overreach.

Had the Senate not had a filibuster rule in place, one that required 60 votes to invoke cloture on a nominee, then the President's nominees likely would have been confirmed. Indeed, a few months after this event, the Senate deemed to amend its rules to require just 51 votes to invoke cloture in a number of situations. Presumably such a principle would have applied to his CFPB and NLRB nominees.

Had the President brokered a compromise, found acceptable nominees (indeed, contemporaneous reports suggested even some Democratic politicians balked at the nominees), or engaged in myriad political alternatives, in addition to the options listed above.

He chose none of them. Instead, he tried to get a two-year recess appointment from a few nominees. Litigation ensued. Now the opinion has come down in Noel Canning (PDF), analyzed elsewhere.

The entire case could have been avoided with any of the above steps--some quite modest--being taken. But they weren't.

And the holding in Noel Canning, in classic Breyerian form, adopts a narrow results that essentially preserves the status quo: perhaps the Constitution means certain things about when vacancies happen and the nature of what a recess is, but, instead, the better result is to undo this isolated act of executive aggrandizement and preserve things essentially as they've existed, in a kind of political inter-branch chess match, until the most recent dispute. (Indeed, given how the Senate has moved to hasten the ease of executive appointments by its cloture rules, it seems little might be left of such inter-branch disputes.)

This sturm und drang was wholly unnecessary--it was wholly avoidable. Which is perhaps why it was so easy for the Court to find unanimity in reaching its (narrow) result in this case.

About the revised proposed NFL concussion litigation settlement

I blogged earlier about problems facing the NFL concussion litigation proposed settlement agreement. A new proposed settlement agreement has been released. (The PDF of the agreement is here.) It cures a few of the issues earlier identified.

For instance, the new agreement eliminates the requirement that parties agree not to sue the NCAA or other football institutions for concussion-related injuries. Earlier I explained that this would help protect the NFL if future litigants tried to bring in the NFL--if future defendants alleged that the NFL was responsible for a portions of the injuries claimed to be attributable to other defendants. Instead, the NFL proposes a bar order that would prohibit future defendants from impleading the NFL for concussion-related claims--a serious limitation on third parties not present in this litigation, but one that protects the NFL interests in a similar way without directly implicating the proposed class plaintiffs. Whether that survives review is another matter.

Additionally, the NFL has agreed to ensure that the money will not run out. It has assured that it will continue to fund the awards for the next 65 years in the event the fund is depleted. (The maximum amounts any single player could receive remains the same.)

Will this please everyone? Hardly. As I noted earlier, some individual litigants may be willing to stake out on their own and try to prove a point with the league, through discovery and through attempts to seek out more money; some lawyers may want to keep a piece of the litigation for themselves rather than ceding it out to class counsel; and so on. But it certainly helps cure some of the problems from the earlier proposed settlement.

New Harvard Law Review pieces on campaign finance and McCutcheon

The Harvard Law Review has recently published two pieces examining the effect of McCutcheon v. FEC (PDF).

The Practical Consequences of McCutcheon, by Robert K. Kelner, chair of the Eleciton and Political Law practice at Covington & Burling, concludes that little will change as a result of McCutcheon due to pragmatic difficulties organizing super joint fundraising committees and the few individuals who were previously limited by the biennial contribution limits.

And After McCutcheon, by Jonathan S. Berkon & Marc E. Elias, both at Perkins Coie, concludes that political parties will have slightly more power and control after McCutcheon, as party committees will be able to pursue additional contributions from key donors (an argument echoing a point raised by Rick Pildes immediately after the case).

I commend both pieces to you--brief, thoughtful pieces from practitioners with important points.

BREAKING: Federal appeals court weighs in on same-sex marriage

The Eighth Circuit has concluded that Nebraska's same-sex marriage amendment should be subject to rational basis review and that the state's refusal to recognize same-sex marriages does not violate the Equal Protection Clause.

It decided this in 2006 (PDF).

One could be forgiven for not knowing that this case, Citizens for Equal Protection v. Bruning, exists. Much commentary today evaluates the "race" to be the first court of appeals to address the issue, as circuits like the Fourth and Tenth have heard oral argument and consider similar cases. Some pundits have wondered aloud whether federal courts would simply be unanimous in their holdings on marriage amendments and that the Supreme Court might never need to weigh in. Indeed, not a single federal case decided since United States v. Windsor (PDF) and Hollingsworth v. Perry (PDF) has cited the existing law in the Eighth Circuit. (The court also concluded that the law was not a bill of attainder and that the law did not violate the First Amendment.)

The Ninth Circuit distinguished Bruning in Perry v. Brown, concluding that California's same-sex marriage amendment left intact other laws concerning same-sex couples' family formation and childrearing, unlike Nebraska's; and that Nebraska's law did not revoke an existing benefit, unlike California's. (The Supreme Court later vacated Perry in Hollingsworth.) And a dissenting judge in the Second Circuit discussed Bruning in the Windsor opinion.

(A few other courts have cited the opinion for some of its other discussion, including its Eleventh Amendment analysis.)

It might be the case that this Eighth Circuit case has not garnered the attention of any of the federal courts addressing same-sex marriage litigation because it has been a different circuit, and its opinion serves only as persuasive (instead of mandatory) authority. But the lower courts certainly are in tune with how other district courts have handled same-sex marriage litigation, regularly citing other federal district courts, and it would seem that a federal appellate court weighing in on the issue with a non-vacated opinion might be the kind of law one would similarly expect to be cited, even if to be distinguished.

Or, it might be that because the Eighth Circuit did not address an Due Process Clause claim, only an Equal Protection Clause claim, its relevance is less. But many federal district courts addressing same-sex marriage also address Equal Protection Clause claims--particularly given the uncertainty about which clause or clauses of the Constitution the Supreme Court relied on in its opinion in Windsor. And it still addresses the government's rational basis arguments, which may be relevant for a Due Process Clause claim.

Or, it might be the case that things have changed significantly in eight years, either due to political factors or due to the Supreme Court's opinions in cases like Windsor. But one would expect that at least some district courts might cite the opinion, then distinguish it by pointing to changed circumstances. (This has been the typical route for courts explaining why the Supreme Court's decision in Baker v. Nelson (1972) is not applicable.)

So, will any federal district court cite Bruning? Any appellate court? Even merely to distinguish it?

Or, perhaps, is the Eighth Circuit case the exact set-up for a circuit split that might force the Supreme Court to address the issue in future litigation, depending on how other appellate courts handle the matter?

Only time will tell.

I admit, perhaps it's a bit deceptive to say that it's "BREAKING" news. But, confession time: was the Eighth Circuit's eight-year-old case law news to you?

When U.S. News rankings aren't news, but just 15 months late

On June 12, 2014, U.S. News & World Report released a "news" story. It boasts, "U.S. News has just published two exclusive clerkship lists of law schools using data from our 2015 Best Law Schools rankings for the 2012 J.D. graduating class."

You may have to read that sentence a few times to realize the problems.

First, the clerkship data for the Class of 2012 has been publicly available since March 29, 2013: almost 15 months ago, when the American Bar Association released its school-by-school data. (Many schools had already individually posted their own results by then.)

Second, that's data for the Class of 2012, which graduated 25 months ago. Data for the Class of 2013 is available from the ABA here. (I have a "microranking" that averages three years' worth of federal clerkship data for each school, from 2011 to 2013, available here.)

Third, the USNWR data may be "exclusive" because it's from their data... but, as the data is also publicly available from the ABA, it's hard to determine what value USNWR adds.

It's unfortunate that outlets like Above the Law pick up 15-month-old stories like they are "news." But maybe the fact that it's called U.S. News & World Report does, in fact, prove that the power of suggestion is quite powerful.