SCOTUS 101: Tie Vote Brings Open Seat Into Focus

Spanish sign reads "Listen SCOTUS!"

Spanish sign reads “Listen SCOTUS!”

Though technically not a decision at all, the ruling in United States v. Texas is one of the most important in the Supreme Court’s recent cases — and it will have reverberations on the November election.

Often opinions are abstract legal documents full of arcane language spanning dozens or hundreds of pages. Accordingly, many Americans do not feel directly connected to the workings of our land’s highest court.

In contrast, although the ruling in United States v. Texas is only nine words long, its impact will be keenly felt by millions in our country. Here is the ruling in full:

The judgment is affirmed by an equally divided Court.

This case concerned President Obama’s policy of deferring deportation and allowing employment for four million undocumented immigrants. These include immigrants with American children and the so-called “Dreamers” who were brought to the United States as children and attended school here.

Since Antonin Scalia passed away in February, the Supreme Court has been left with only eight justices on the bench. While the ruling in United States v. Texas is unsigned, it can be assumed that the four liberal justices (Elena Kagan, Stephen Breyer, Sonia Sotomayor and Ruth Bader Ginsburg) wanted to overrule the lower court, while the four conservative justices (Clarence Thomas, John Roberts, Anthony Kennedy and Samuel Alito) wanted to affirm its ruling that Obama’s deferred action policy constituted an unconstitutional expansion of presidential authority.

Today, the Supreme Court was unable to reach a decision. This is part of the consequence of the Republican failure so far to give a fair hearing to Mr. Merrick Garland, my nominee to the Supreme Court. It means that the expanded set of common-sense deferred action policies — the ones that I announced two years ago — can’t go forward at this stage, until there is a ninth justice on the Court to break the tie.

Republicans refuse to even consider any possible replacement for Scalia until January when the next president takes office.

While many Americans seemed unconcerned that our country’s highest court will be short-handed for an unprecedented length of time, while this split decision sets no legal precedent, and while (according to the United States Circuit Court for the Fifth Circuit’s earlier ruling) the secretary of Homeland Security’s ability to marshal and deploy department resources is not enjoined or impaired, it is painfully obvious that the ruling in this case will have enormous consequences: Millions of families are now in an uncertain legal situation; they may fear deportation if picked up on an unrelated matter; and they will have difficulty obtaining legal employment.

"[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court..."

“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court…”

One does not have to be a legal scholar or a political pundit to intuit how this 4-4 split would have been avoided had the Senate filled its constitutional duty to provide its “advice and consent” and consider the president’s judicial nominees.

This election provides a stark contrast that will be easily understood by voters, especially those with friends or family at risk of being deported or forcefully separated from a loved one.

On one side, we have a party whose senators refuse to meet Obama’s nominee, Justice Merrick Garland; whose representatives refused to consider “Dreamer” legislation; and whose presidential nominee wants to build a wall on our borders, doubts the qualifications of Hispanic judges and advocates banning immigrants of certain faiths.

While on the other side, we have a presidential candidate who stands up for “Dreamers.”

I’m going to do everything I can so you don’t have to be scared. And you don’t have to worry about what happens to your mom or your dad or anyone else. I feel really, really strongly, but you’re being very brave and you have to be brave for them too. Because they want you to be happy. Let me do the worrying. I’ll do all the worrying. Is that a deal? I’ll do everything I can to help, OK?

As president, who would these candidates appoint to fill the vacancy on the Supreme Court? And how would their judicial nominees break this deadlock when this issue is inevitably re-litigated before the Supreme Court?

If anyone doubted that the fate of the Supreme Court would weigh heavily on the presidential and congressional elections this November, I think this 4-4 non-decision puts the case to rest.

Voting Rights In the Wind?

How_to_Steal_an_Election_-_Gerrymandering.svgThe right to vote is a foundation of American democracy, along with freedom of speech and the press. When the Supreme Court speaks on the subject, or even just listens, it has an importance well beyond the seemingly minute legal details that the Justices can take up. On December 8 two voting rights cases came before the Court.

Voters are slotted into districts from which they choose their members of Congress and their state legislators. Although individual ballots are secret, today computers can tell us a lot about voting habits, and can redesign districts to shape the outcome of elections. Increasingly, elected officials know how to use this technology to choose their voters and assure their continuation in office.

One of the  two cases before the Court was the oral argument in Evenwel v. Abbott, in which Texas citizens complain that the number of registered voters varies widely between voting districts. They want the Court to require equal registration in each voting district, even if that results in widely different populations represented.  The second docket was Shapiro v. McManus, in which the Court unanimously decided that the challengers to a gerrymandered voting district in Maryland made out a case for a  three-judge trial court.

Historically the establishment of voting districts was a state legislative matter, a political matter that received very little attention from the Court.   As population moved and changed, often voting maps stayed the same, resulting in very large inequalities in representation.  Then in Baker v. Carr in 1962, the Court declared that unequal districting could be justiciable, and two years later declared that fair voting districts must have closely equal population. Since then, redistricting carried out every 10 years has focused on population equality.

Evenwel argued that population may be equal, but there are 50% more voters registered in his Texas district than the number of voters in some other districts.  Therefore he claimed that his vote has less weight than votes of those in the other districts. But is this a denial of equal protection under the Constitution?

History favors the present practice. The Constitution allocates congressional districts among the states in proportion to total population, not voter registration. Women and children were counted well before the 19th Amendment giving women the vote. The ignoble three-fifths compromise was based on the number of slaves, none of whom could vote. For the 60 years that we have had the need to equalize voting districts, population has been the measure.  Almost every state follows the same model in drawing the voting maps for the  state legislature as well.

The State of Texas argued for allowing states to continue to base districts on equalizing population. Counting voter registration, not population, would seem to exclude people who cannot vote from representation: immigrants who are not yet citizens, undocumented people, those who are less than 18 years old, as well as those who decline to vote for religious reasons.  Philosophically, legislators are expected to represent and serve all people, not just registered voters.

More practically, voter registration changes materially in ways that population usually does not. Before a presidential election, registration rises. If those registered decline to vote in “off year” elections, state law may strike them from the polls. Moreover, our reapportionment is based on the national decennial census which does not try to document voter registration, usually purely a matter of state law.

What appears clear is that Evenwel’s proposition, if adopted, would significantly shift voting power from urban to rural areas. So there is much riding on the Court’s decision, which is expected in June 2016.

Shapiro presents a seemingly narrow question but has the Court watchers sifting the tea leaves for some hint that the gerrymander problem may be seriously addressed in the future.

In a district that is gerrymandered to favor one party, voters of the other party may as well stay home. They cannot hope to alter the result in an election. In such districts, important decisions are made in the primary, but only the primary of the favored party. In most states a voter can take part only in the primary of the party in which he is registered.

An obvious inconsistency in the Court’s jurisprudence is the exacting attention to equalizing the population of districts, while allowing gerrymandered districts in which disfavored voters need not even go to the polls. It is estimated that 90% of congressional districts are “safe” seats in which one party has control; how many of these districts are intentionally gerrymandered is less clear, but it is surely an important number.

Federal law grants a person challenging the constitutionality of a voting district the right to a three-judge district court for trial. In this case individuals challenged their district on grounds that it was formed from two separate areas, linked by a “ribbon” and created solely to disenfranchise the voters in the smaller half of the barbell shape.

A single judge of the United States District Court for Maryland decided that the plaintiffs did not have a claim sufficient to go to trial, based on an unbroken line of rulings of the Supreme Court and lower federal courts that district maps — except in cases of racial discrimination — are non-justiciable. Reasoning that the plaintiffs had not shown a claim sufficient to even get to a trial, the single judge rejected the claim for a three-judge court and dismissed their case.

The Supreme Court reversed and remanded the case. Justice Antonin Scalia, usually in the vanguard in cases dismissing gerrymander claims, wrote the brief opinion ruling that the plaintiff voters’ claim against the barbell district could not be dismissed as “insubstantial.”

Alone, that ruling might itself be insubstantial. But Scalia chose to find support in Justice Anthony Kennedy’s concurring opinion in Vieth v. Jubelier in 2004. That case is the leading modern decision that election districts are political and non-justiciable.

In concurring with that decision, Justice Kennedy stated: “I would not foreclose all possibility of judicial relief [in a future case] if some limited and precise rationale were found to correct an established violation of the Constitution …” Justice Scalia wrote the opinion of the Court in Vieth, and included an extensive critique chiding Justice Kennedy’s “never say never approach.”  It seems that “never” may have arrived.

So should we hope that Justices Scalia and Kennedy have now discovered that some gerrymanders are “justiciable” and will join with the more liberal wing of the Court to grant voters relief in Shapiro or future cases? Stay tuned for more words from the Court.

Note: The author is chair of Common Cause of Pennsylvania, one of the nonprofit groups participating in briefs before the Supreme Court in these two cases.

Scalia, no class act(ion) for justice

Maybe Associate Justice Stephen G. Breyer was thinking of two or more of his Supreme Court colleagues when he wrote, “Only a lunatic or a fanatic sues for $30.”

The associate justice regarded by court critics as leading court fanatic, Antonin Scalia, wrote the majority opinion on Wednesday, April 27, 2011, depriving ordinary consumers of another avenue to contest possible injustice. Scalia’s opinion was supported by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr.

Breyer’s disdainful retort was part of his dissent that was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. It was the usual 5-4 line-up for a contentious issue.

The court ruled that businesses may use standard-form contracts to prohibit consumers who claim fraud from joining together in a single arbitration, according to The New York Times.

More after the jump.
Vanderbilt University Law Professor Brian T. Fitzpatrick explained, “The decision basically lets companies escape class actions, so long as they do so by means of arbitration agreements…It’s one of the most important and favorable cases for businesses in a very long time.”

Vincent and Liza Concepcion of California filed the lawsuit against ATT&T Mobility seeking class-action treatment after objecting to a $30 fee for what was said to be a free cellphone, the Times reported.

AT&T responded by relying on the contract requiring the couple to settle disputes through arbitration and prohibited them from joining with others to seek class-action treatment, whether in arbitration or in traditional litigation in court.

The company argued that the case could neither move forward in court nor as a class action in any forum, but lower federal courts would not enforce the arbitration agreement and permitted the case to proceed. The courts followed a 2005 California Supreme Court decision that prohibited class waivers as unconscionable, according to the Times.

Scalia wrote in the majority opinion that the lower courts did not properly apply the Federal Arbitration Act which overrides some state court rulings against arbitration. The California Supreme Court’s ruling prohibited class waivers in all standard-form contracts, whether applicable to arbitrations or court proceedings, as unconscionable if they gave rise to claims that the companies issuing them had set out “to deliberately cheat large numbers of consumers out of individually small amounts of money,” the Times reported.

Scalia wrote, “Requiring the availability of class wide arbitration interferes with fundamental attributes of arbitration.”

Breyer stated, “Where does the majority get its contrary idea – that individual, rather than class, arbitration is a fundamental attribute of arbitration?

He pointed out that class arbitrations are more efficient and, primarily important, minor frauds such as that claimed by the California couple will not be resolved.

He wrote, “What rational lawyer would have signed on to represent the Conceptions in litigation for the possibility of fees stemming from a $30.22 claim?” Quoting from another case, he added, “Only a lunatic or a fanatic sues for $30.”

Vulnerable people in this society have limited avenues to obtain justice. Wealthy people sometime file lawsuits over the most petty affronts. Attorneys turn down claims from people if they cannot see a cost-effective case in it or they cannot afford the legal fees.

Scalia and other conservatives embrace the “original intent” of the framers of the Constitution. Was it their “original intent” to leave ordinary people without legal recourse?  

Supreme Court’s Affirmation of Employee Rights

David Saperstein, Director of the Religious Action Center of Reform Judaism

We commend the Supreme Court for unanimously reversing the Sixth Court of Appeals and upholding the intent of Title VII‘s anti-retaliation provisions. In Thompson v. North American Stainless, the Court found that Eric Thompson, who was fired in 2002 soon after his fiancée-who worked at the same company-filed a sex discrimination complaint, had the right to sue his employer for retaliation under Title VII. Writing for the Court, Justice Scalia made clear that a worker could reasonably be silenced by fear of retaliation in the form of firing against a fiancé and that such a situation violates essential civil rights protections.

Building on our strong legacy of civil rights advocacy, the Reform Movement was pleased to join an amicus brief coordinated by the National Women’s Law Center, urging the Justices to decide the case in Mr. Thompson’s favor and ensure the continued vitality of civil rights protections. We welcome the Supreme Court’s decision to uphold Title VII of the Civil Rights Act of 1964, which was largely drafted in the Religious Action Center of Reform Judaism’s conference room.

The decision in Thompson v. North American Stainless is particularly heartening given its deviation from the recent trend of Supreme Court decisions prioritizing corporations over individuals.

We praise the justices for discontinuing this disturbing trend and hope to see more decisions recognizing individual rights in the future.