Amicus briefs in the Supreme Court (Contraception Cases)

There's a really interesting amicus brief in the contraception cases being heard about this week.  You can read the brief here, a shortened version here, and some discussion here and here.  But I want to talk about why this brief is so important in a slightly different context.

Amicus briefs are a relatively rare breed in lower courts, but they are commonplace before the Supreme Court.  For those who are unfamiliar with the term, an amicus brief is a brief written by a non-party trying to persuade the Court to come to a certain outcome.  (Amicus is latin for friend, and the briefs are sometimes referred to as "friend of the court" briefs).  Although Amicus Briefs usually support one party or the other, that's not always the case - an Amicus Brief can be filed on behalf of "neither party."  More on that in a bit.

While usually the filer has some interest in the legal issue (think a labor union in a labor case involving a different labor union), that alone is not reason to file a brief in the normal case.  After all, there's already a brief being filed by typically a very good advocate who has the same goals you have.  Even if money isn't important, replicating the party's brief does no good and wastes the Court time.

Yet there are several reasons entities file amicus briefs.

1 - This really isn't, in theory, a good reason to do it, but sometimes organizations file it for the publicity.  They can use it to fundraise (if they are a nonprofit) or to raise their own presence, either in the legal community or more broadly.

2 - Also, sometimes what happens in these cases is a law firm simply wants to file an amicus brief to raise the law firm or lawyer's own reputation.  In that case, they'll often front all the costs, and simply persuade someone who agrees with the law firm's position to sign on.  Again, not really that helpful to the Court, but it happens.

3 - Sometimes a group with a similar interest thinks the party just did a bad job.  Maybe the brief didn't address the right issues, or maybe the brief was just really difficult to read.  So sometimes, in that rare case, the amicus really does want to replicate what the party SHOULD HAVE done, but did not.

4 - Sometimes, perhaps coordinated, an amicus brief wants to take on an issue tangential to the case, or delve into a sub-issue in the brief in a greater level of detail then the initial briefs do.  Sometimes that is done to "scare" the Court from making an adverse ruling, by discussing the potential repercussions of that reading.  Or sometimes it's just over-the-top legal wonkery.

5 - Sometimes an entity has some specialized expertise, often non-legal expertise, that is important to the issue.  They want to present that expertise to the Court to help understand how the law interacts with the facts.  This is known as a Brandeis Brief.

6 - Sometimes the parties' entities aren't exactly the same.  Let's take the labor example.  One labor union might represent, say, state government employees, and are asking the Court for a broad interpretation of a statute that applies generally.  Another union might represent private employees, and they may want a similar reading of the statute, but they know the Court is skeptical of giving it to state employees.  What does the private union do?  One thing it can do is try to come up with an alternative framework for the Court, so it can accept the employee union's claim without reaching the issue in a way that might hurt the private employees. 

7 - Or it can be a sort of false friend.  It can suggest in a brief that the statute be read the way it prefers as to private parties, but maybe not to public parties.  Depending on how this is written, that brief can literally take no position on the merits - in which it is probably filed on behalf of neither party.  Or it can even take an adverse position to the other union.

This brings us to the Laycock Brief, which is a perfect example of this "adverse position" possibility.  Doug Laycock is a law professor, and a prominent legal conservative with an expertise in religious law.  In concept, he absolutely supports the Religious Freedom Restoration Act.  Indeed, he probably supports the most expansive rights for religious dissenters and objectors that he thinks is possible.

And yet he files a brief, on behalf of the Baptist Joint Committee for Religious Liberty, on behalf of the government, not the religious entities in this case!  Why?  Well, because he's afraid.  Specifically, he's afraid that if the government loses this case, the political response will outweigh the benefit of the ruling:

Petitioners also argue that because the government voluntarily exempted churches and their insurers, making no effort to provide contraception to church employees by alternative means, it is required to give the same exemption to all religious non-profits and their insurers. Such a rule would be a mortal threat to the common and important practice of legislatures and administrative agencies enacting specific religious exemptions. If legislators or administrators believe that any narrow religious exemption will automatically lead to a much broader religious exemption, many of them will not enact any exemptions at all.  

The regulations at issue in these cases represent a sophisticated and good-faith effort to exempt petitioners from any obligation to provide contraception, while requiring secular insurers to provide it instead. Petitioners’ claim is not just that they should be relieved from providing contraception—a claim we would support without reservation. Petitioners claim that their secular insurers should be exempt as well. And that claim reaches too far.

 Now, a few thoughts:

First, I happen to disagree with the outcome in Hobby Lobby.  Laycock and his client agree with that case.  Nevertheless, I happen to think he's otherwise right on the merits in this case.  But I think his brief is going to have a major effect on this case merely from its signal.  The Justices know Laycock, professionally if not personally.  Along with his academic work, he's argued a number of RFRA and First Amendment cases, always on behalf of the "religious liberty" side.  Even in cases he has not argued personally, he's at least filed a brief in practically every RFRA case (again, on behalf of religious liberty), including Hobby Lobby.  If he's saying that the Court is going too far, that's going to be an important signal for the Court.

Second, his view of the political blowback from a decision against the government is not universally shared by politically conservative pro-RFRA advocates.  There are almost an excessive number of advocates who have filed amicus briefs on behalf the objectors in this case.  (To be fair, there are an excessive number of amicus briefs on both sides.) 

Third, by filing such a brief, Laycock and his counsel get an amazing kind of influence.  The conservative wing is already ideologically disposed to agree with him, and the liberal wing is supportive of the outcome he is pushing in this case.  This allows him to provide the contours of a decision for the government in a way that promotes his conservative, more expansive view of RFRA. Again, from the brief:

Each of these formulations is a demand for absolute deference on the substantial-burden issue. This cannot be right. But it contains important elements of truth. Courts cannot question petitioners’ sincere religious beliefs. If petitioners sincerely say the burden in these cases is substantial, then it is substantial to them. And that is a fact entitled to great weight. 

But substantial to the believer is not inevitably the same as substantial in law. Courts must ultimately decide whether the burden is legally substantial within the meaning of the statute. Petitioners are entitled to substantial deference on that issue. They cannot be entitled to absolute deference.

The issue Laycock is discussing is whether, when a plaintiff says that they have a religious belief, and that conduct "substantially impairs" that belief, the Court should defer to whether the government regulation being challenged actually and substantially impairs their beliefs.  I agree--and I think Laycock does too--that the contours of their belief are entitled to absolute deference.  But where I part with Laycock is whether they are entitled to *any* deference at all as to whether the government regulation substantially burdens that belief.  And this is important because hidden behind this question is a very important question, which is: what kinds of "beliefs" are subject to RFRA at all.

Let me take an extreme hypothetical, then let me bring this back to the actual facts of the case, and then let me take this to a more narrow hypothetical, to see how the distinction matters.  

One, the extreme hypothetical:  I used in a prior version a particularly zealous Jew who believes everyone should be forced to keep Kosher, so that he can go around stealing other people's pork (or killing pigs, or whatever).  He wants to be exempt from general prohibitions that encompass this conduct.  RFRA will certainly protect the interest that this person should not be forced to eat pork.  At least under Hobby Lobby, it probably protects him from a regulation that would require him to sell pork, if he were a grocer.  But RFRA is not designed to protect at all the religious belief:  "I believe that other people should not be allowed to eat pork."  It doesn't matter if the pain of seeing other people eat pork is truly so hard on his religious beliefs that it causes him physical pain.  Even if the government did not have a compelling interest in allowing others to eat pork, it's not a right RFRA is supposed to protect.  That is not religious freedom--if anything, it is the opposite.  (I think Laycock agrees with all of this, to be fair.)

Two, the actual facts:  As Laycock explains, the heart of the objectors religious belief is that they want to "control their secular insurance companies and the government’s regulation of those companies."  Specifically, they think that making their insurers provide contraceptive coverage burdens their own religious belief.  RFRA simply does not protect this interest at all.  Thus, the government regulations do not "substantially burden" the objectors' religious beliefs no matter how general or specific they couch that belief.  It does nothing to burden their belief about the wrongness of contraception generally, or the lack of morality of being "complicit" in their use, or their belief that it is wrong to have their insurer provide it specifically.  (I think Laycock agrees with this as well.)

Three, let's take a more narrow facts - actual facts from Hobby Lobby.  In that case, Hobby Lobby did not object to all contraceptives, just "abortifacients," which they specifically define as those that terminate an embryo.  But the contraception they objected to provided actually did not do that.  Hobby Lobby was wrong on something they do not claim is an instruction from God, but merely a scientifically-provable fact.  I think Laycock would think that we need to defer to the plaintiff's sincere (but not "religious") belief that forcing them to cover the contraception in question violated their religious beliefs.  I would disagree.  

Now, perhaps Hobby Lobby itself can be read to have answered this question.  But maybe not.  Even if it did, that case was 5-4 and may not be around very long.  But if a Court follows Laycock's analysis here, then it might set in stone the very kind of reasoning that may expand religious liberty in a subtle way that a majority of the Court might not otherwise support.  And regardless of whether I agree with Laycock or not, that is very good advocacy indeed.

UPDATE:  Sensing the danger, Ed Whelan of the National Review attacks the Laycock brief in two blog posts.  Since I'm not focused on the details of the argument here, I will only note that Whelan's response essentially ignores or miscasts Laycock's argument.  Meanwhile, while insisting that the burden here falls on the objectors, as opposed to the objectors'insurers or TPAs, Whelan's explanation, if you can call it that, relies on weasel words (e.g., "facilitates," "complicity," "involvement"), conjecture ("might"), economic analysis that ignores how the ACA applies (the argument regarding money being fungible ignores the price controls on the ACA), and simply assuming the legal issue at issue ("the entire arrangement still depends completely on the government’s conscription of the employer’s health plan and contractual relationships").  Safe to say, I would assume Laycock would not agree that RFRA gives one an enforceable legal interest in imposing its religious beliefs on others via contract.

Merrick Garland qua settlement proposal

Merrick Garland is likely a moderate Democratic nominee, who, at 63, will have a term that is likely decades shorter than other potential choices.  He may even be to the right of Scalia on some criminal justice issues.  He certainly is not the pick of a Democratic President with the advantage of a Democratic Senate.  He is likely not even the type of pick a new Democratic President would pick if the Republican party maintained control of the Senate.

He is, thus, a settlement offer.  Take this now, or risk a younger and more liberal choice later.

But, like all settlement proposals, it is clear there must be a time limit on the GOP's ability to accept.  In this case, there must be some point at which Obama will withdraw the nomination.  And that point should be explicitly tied to the odds of the Democratic nominee (likely Clinton) winning the nomination.  

Why?

First, let's put aside the not-believable notion that the GOP is refusing to hold a hearing out a matter of principle, and that they would do so even if Scalia had handpicked his successor.  The reason the GOP is refusing to hold hearings is not out of any constitutional principle, even as there is no hard constitutional rule that requires them to hold hearings.  This is merely politics, albiet one that mildly upsets the norms upon which the effectiveness and legitimacy of the Constitutional system are founded.  It is, what Professor Tushnet calls, "Constitutional Hardball."

Now, in an ordinary settlement proposal, there are actual or implied time limits for a reason.  If one could extend a settlement proposal forever, there is no reason to take the offer until the judgment is effectively final anyway.  If the settlement is more favorable than the judgment, then and only then would you take it.

In civil litigation, this means that settlement can and does frequently happen right up until the eve a result becomes relatively certain, such as a motion on summary judgment or a verdict.  (Often, settlement happens on the verge of trial, but this is only because of the expense of trial itself.)  But in those cases, there's a good deal of uncertainty right up until the moment the result comes out.  And, at that moment, the offer vanishes.

In Presidential elections, it is quite different.  By the time the new President is sworn in, election day has been over for months.  Even on Election Day, polling has made the vast majority of elections foregone conclusions.  Other than the most hardened partisan, most people knew the outcome of the 2012, 2008, 1996, 1992, 1988, 1984, 1980, 1976, 1972, 1968, and 1964 elections before the voting began in earnest.  The only two exceptions since 1960 were, then, 2000 - in which we weren't sure of the next President even after Election Day, and 2004, in which the markets predicted a George Bush election, but without certainty, and the end result was relatively close.

2016 is even less likely than the typical election to be close.  Feelings about the likely Democratic nominee are mostly polarizing and well known.  Meanwhile the Republicans are set to either nominate an incredibly polarizing figure in Donald Trump, or a very conservative figure in Ted Cruz.  Both are likely to lose, and both are likely to result in very little fluidity in polling.   In other words, we should have a good handle on who the presumptive President is by the end of the last debate, where hard polling is likely to be quite predictive.  Indeed, we'll have a pretty good idea of who will be President in the first rounds of polling after the conventions.

And there's another "decision point" for the GOP even earlier.  As soon as the identity of the GOP nominee is decided, whether at the convention or otherwise, the stakes change for a different reason as well.  This is because, while Ted Cruz (or Kasich or a "savior" candidate such as Mitt Romney or Paul Ryan) are likely to nominate a reliable conservative to the Supreme Court, Trump is a bit of a wild card.  His populist politics and his love of theatrics may make a nomination of his 78 year old politically liberal sister, an oddball nominee such as Judge Judy, a moderate such as Brian Sandoval, a fundamentalist populist such as Roy Moore, and a standard conservative such as Diane Sykes or Bill Pryor equally likely.  Some of these outcomes might be less preferable to a 63 year old Garland.

If Obama allows the nomination to sit, it might get taken up at a point in which the realistic choice for the GOP is between Garland or a less palatable choice.  At that point, Obama may not want Garland to be up for consideration.  Settling for Garland now makes sense; settling for him with Nina Pillard waiting in the wings does not.  In order to make Obama's compromise offer a true compromise offer, and in order to give it the best chance to be considered now, Obama must make clear that it has an expiration date.  And he should coordinate with the Clinton campaign as to when that expiration date is.

UPDATE:  This should come to no surprise.  "Hey, we agree to accept your settlement if we lose"  This obviously should be responded to with a snort and a no.  Unfortunately, Obama seems open to the idea.  If so, Democrats--and, in particular, Hillary Clinton herself--should pressure Obama to make this a limited-time offer.  It may be the only hope Garland has to be confirmed before November; and if Clinton calls on Democratic Senators not to confirm Garland in a lame-duck session, it might be Garland's only hope of being confirmed at all.

Scalia: Not Just One Thing

Almost immediately after I left for vacation (within hours of losing access to the internet), I found out that Scalia passed away.  Since I returned this weekend, I have read a lot about his death and what it (and he) means for the Court.  I have decided not to write anything at this time about the filling of his position, since this is essentially a political fight, not a legal one.

SCALIA WAS MORE THAN JUST ONE THING

Most of the tributes (or criticisms) of Scalia in the wake of his death miss the mark in my opinion.  It is not that they are completely wrong about Scalia.  But they all seem to focus on one or two of his attributes, at the expense of others.

Yes, Scalia was an originalist (to be more specific, an original understanding textualist).  Many tributes and criticisms claim that this originalism was 100% pure or merely pretext.  Neither is right.  Yes, Scalia was also other things--a social conservative, a libertarian, a Kirkian conservative, a pro-unitary-executive--and his decisions were the result of these values balancing in any particular case.  Thus, in high stakes cases, Scalia would often would find a result that appears based on "bad originalism" (e.g., Heller), or, perhaps with a nod to the self-described faint-hearted-originalism card, ignores his brand of originalism completely and relies instead on other purported defenses of a decision, e.g., another kind of originalism, non-originalist textualism, or just precedent and stare-decisis.  Examples of opinions Scalia drafted or joined that are decidedly not original-understanding textualism include the affirmative action cases, Shelby County, Lopez, most of his First Amendment cases (including campaign finance cases), and, perhaps most famously, Bush v. Gore.  

And, indeed, the importance of Scalia's personal politics to his jurisprudence seemed to deepen with age.  When he was younger, Scalia would often hire liberal law clerks, and would engage the outside world-both conservative and liberal-even if it was more in an attempt to be influential than be influenced.  As he got older, he stopped hiring liberal clerks and even stopped reading or listening to anything other than conservative news sources.  This led to what appeared, to me at least, to be "two Scalias."  In cases lacking political importance, Scalia appeared the same as ever, an astute (if multi-valued) jurist.  In cases covered by the political press, he would instead come across as "crazy old man watching Fox News."   It's hard to know how much of this was for effect; as I detail below, Scalia appeared very aware of public coverage of him and was communicating to them as much or more so than the legal community.

But this doesn't mean he wasn't an original-understanding textualist.  In less high-stakes cases, his originalism won out.   As Eric Posner astutely noted, Scalia was just doing what other Justices were doing - using a variety of values and techniques to come up with his own version of justice.  What infuriates his non-acolytes should not be that conduct, but merely his wild-eyed accusations that others were not acting in a straightfoward, apolitical, uncalculated manner.  Of course, these accusations were correct; but they ignored that they equally applied to Scalia himself.

Scalia also appears to be a bit of a enigma on criminal law.  Many appeared to argue that Scalia was quietly one of the most pro-criminal-defendant justices on the Court.  This is incorrect.  Scalia's lack of concern for criminal defendants was often striking.  But, unlike other justices, like Alito and Rehnquist (whose jurisprudence could almost be summarized as anti-criminal), Scalia was not pro-prosecutor either.  Rather, Scalia valued the technical process.  And (other than in a few core areas), absent passion one way or another, Scalia took his original-understanding textualism to heart, allowing him to take it wherever it would leave him, like an amateur legal historian.

In large part because the connection between 18th century criminal law and the 21st century world is so opaque, this put Scalia "in play" in almost any novel criminal procedure case.  Since his vote was often necessary for a criminal defendant before the Court to get to a majority, he quickly became known as a friend.  And, in playing the crucial deciding vote in so many criminal cases, he may have made his brand of originalism more important in that arena than in any other.

Some say originalism will die with Scalia. But of course, it won't.  All eight Justices value originalism (even original understanding textualism, as the meaning of words at the time they were written are the best evidence of their original meaning) to some extent.  And thus originalism, like precedent, legislative history, structuralism, and other jurisprudential values, will continue to play a role both in how lawyers brief courts (particularly the Supreme Court) and how judges and justices rule on them.  It will decline in importance over time, most notably in criminal cases.  But it will not die.  And Scalia's acolytes, believers more true than even him, will continue to shape the law.  Should a Republican nominate one to the Supreme Court, the importance of original intent textualism may even increase.

SCALIA'S WRITING STYLE WAS IMPORTANT, BUT NOT FOR ITS PERSUASIVENESS

Scalia is often hailed by critics and acolytes alike as a great writer.  But this both overstates and understates his writing.

Scalia was not exceptionally persuasive as a writer.  He was not unpersuasive, but his ability to persuade (particularly, his ability to persuade an informed reader) is significantly less than that of Roberts (the Court's currently-most-persuasive writer), or even Kagan or Ginsburg.  

But Scalia was also the first writer since perhaps Holmes himself to write for the masses.  In its simplicity, and in avoiding (usually) unnecessary detail, his writing became accessible to non-lawyers. By combining this style with incendiary rhetoric, Scalia was able to build political groundswell support for his opinions from the conservative political masses.  In doing so, he helped place the Court in the public eye in a way that it really hadn't been before, outside of a few exceptionally-important cases.  

So Scalia was hardly able to convince people who did not already agree with him that outlawing gay sex would destroy the country, that reading statutes holistically would result in the end of democracy, or (in what appears to be a coincidental level of prescience) that giving independent prosecutors too much power would lead to political witch hunts.  But he was able to convince voters and grassroots activists that these things were important.  He was also able to convince these people that the Court was undermining some political utopia regarding these subjects, so that what courts do were important.   As I now begin to discuss what I think his legacy will be, this may be the most important thing he has done.

SCALIA WILL HAVE A VERY IMPORTANT--AND CONTROVERSIAL--LEGACY

People seem to dispute exactly what Scalia's legacy will be, although most appear to agree that it will be important for some reason or another.  Here are a few parts of Scalia's legacy that I think historians will find important in the future:

1 - Most notably, Scalia will be remembered for making the Courts subject to broad partisan debate.  He did so not just with his writing, but also his role in founding the Federalist Society.  (This would later be imitated on the left by the American Constitution Society.  Sincerest form of flattery.)

2 - Relatedly, Scalia will be remembered for his role in the most important political decisions of his day (Bush v. Gore most of all).  Ironically but unsurprisingly, these are the least originalist opinions he would write or join.

3 - Scalia will also be remembered for making an impact on how we talk about the law, particularly in terms of original understanding textualism.  Substantively, he will have a more moderate impact in making aspects of the law more closely tethered to original understanding textualism concepts - most notably, in criminal cases.  (Whether these forays into popular history are correct are not is a different question.)

4 - Scalia will be known for the remarkable effect he has had on diminishing the value of legislative history.  It is unclear yet how permanent this effect will be.

5 - Scalia will be remembered, positively, for his impact on legal writing.  Since Scalia, legal writing has become more accessible, simple, and straightforward.  Meanwhile, with at least one notable exception among the appellate bar, the non-persuasive elements of Scalia's writing style has been ignored.  And the increase in accessible writers on the Court itself - Roberts and Kagan in particular, is likely attributable to Scalia himself.

Sorry for the break

I know it seems like I stopped blogging but it has been a very busy period with my "real job."  I hope to start up again when I get back from what will be a much-needed vacation towards the end of February, if not sooner.  Sorry.

Today, the Court decided DirecTV v. Imburgia.   The case involved a pretty complicated contract, one not likely to be seen in the future, where the arbitration clause was dependent on whether state law permitted class arbitration.  Specifically, the arbitration states that if the “law of your state” makes the waiver of class arbitration unenforceable, then the entire arbitration provision “is unenforceable.”

At the time the arbitration agreement in DirecTV was entered into, California banned class arbitration waivers, making such waivers unenforceable. In 2011, the Supreme Court found all such bans preempted by the Federal Arbitration Act.  The question in DirecTV was whether the provision above applied to make the arbitration provision unenforceable.

One easy way to decide this case would be to find that California law did not make the waiver of class arbitration unenforceable at the time.  Under this theory, despite what the parties may have thought at the time, California law did not actually make waivers of class arbitrations unenforceable.  This would be because California law in this regard was invalid and had no effect.  Such is consistent with a long history that, when a court announces a new rule, they are merely finding it, not changing it.  

In fact, that appears how the Court wanted to decide the case.  But California courts held otherwise, and the FAA does not allow the Supreme Court to *interpret* California law.   It only allows it to invalidate a California rule of decision that discriminates against arbitrability (more about that when discussing the dissent).

Rather than accept the decision of the California Court--which is what the dissent suggested--what the Court did here was say that, in other cases, California would have interpreted a provision incorporating the law of a state to include yet-discovered changes to the law; they would have adopted the "finding law" theory I summarized above.  By not incorporating the law of a state to include the change here, California was discriminating against arbitration provisions - a no-no under the FAA.

There were actually two dissents.  Thomas dissented on his usual grounds in cases like these, arguing that the FAA does not apply in state courts.  Ginsburg, along with Sotomayor, separately dissented.   Nothing in this post touches on Thomas's arguments, so I refer to the Ginsburg opinion as "the dissent."

The dissent's position was essentially that all the FAA really bars is the invalidation of arbitration provisions by state law:  The FAA's text bars arbitration-specific rules that would invalidate provisions "evidencing a transaction involving commerce to settle by arbitration a controversy."  Here, the California Supreme Court was merely interpreting the provision, not invalidating it.

I think the majority probably got this case wrong, but for a slightly different reason.  (I will explain my qualification of "probably" at the end.)  The dissent is not entirely convincing because choosing to find an arbitration provision inapplicable is the same thing as finding it not "enforceable."  So I don't think the FAA is as quite as narrow as the dissent makes it to be.  Nevertheless, as the dissent does note, the hallmark of arbitration is consent.  And for the FAA to apply, there must be an intent in the contract "to settle by arbitration a controversy."  And I don't think that existed here.

At the time the contract was entered into, the parties knew California law applied, and thought (incorrectly) that California law barred class arbitration waivers.  Thus, they would have thought the arbitration provision was inapplicable.  The majority assumed they at the time the contract was entered into, the parties agreed to enter into a class arbitration provision, subject to the waiver clause, and only to the extent the waiver clause is valid, so that a change in law might snap the arbitration provision back at any time.  (Indeed, the slice of time they thought mattered as to what the relevant law was not when the contract was formed, or even when the breach occurred or the claim brought, but at the time of the California court's ultimate decision.)  While "meetings of the mind" are often more legal fiction than fact, it seems unlikely that the  parties were agreeing to was a convoluted, conditional arbitration provision.  I think a better way to understand the intent of the parties at the time was that, when the arbitration agreement would be governed by a state that's law did not enforce class arbitration waivers, the entire arbitration clause was not agreed to.  Or, in other words, let's say hypotheically that the California rule as it existed was also the rule in 6 other states, say NY, NJ, MI, ME, IL, and IA.  The agreement was simply shorthand for saying, "this provision does not apply in NY, NJ, MI, ME, IL, IA, and CA."  

After all, how would a non-class case have proceeded prior to the Supreme Court announcing the class-arbitration-waiver-ban unenforceable?  If the arbitration provision is initially valid, then the arbitrator would have to initially decide the issue (as it had to in Green Tree v. Bazzle).  So the arbitrator would have to decide this broad issue about class arbitrations.  Only once that was decided, would a state court be able to review the decision.  It is unlikely a person in California, thinking the arbitration clause would not even apply to them, were agreeing to such procedural hurdles to their contractual rights to bring a claim. 

And if the parties were deciding not to arbitrate in California at the time of arbitration, a change in law should not create the consent to arbitrate.  That would be true even if California law changed on its own, without prodding by the Supreme Court.  So the required consent necessary for arbitration never existed, and the FAA should not apply to compel arbitration in this case.

Indeed, the Court treats the State Court's decision as discriminatory against arbitration, and it is; in this case.  But in doing so, the Court creates a rule of interpretation that might be discriminatory based on other facts.  What if the parties entered into the same agreement today, and then Congress changed the FAA to explicitly bar class-arbitration waivers?  This is not entirely infeasible should Democrats again control Congress, as the financial reforms after the 2008 recession will likely lead to a ban on such waivers in financial contracts within the regulatory purview of the Consumer Finance Protection Bureau.  Presumably, the Court would hold that the arbitration provision was unenforceable in California, even as it applies to non-class arbitrations.   But it is possible that the California court may have found, in that situation, the parties, not anticipating this change in the law, agreed to arbitrate their claims, and although this does not include an agreement to arbitrate class claims, such a limitation is unenforceable.  Thus, the Supreme Court's decision would be the one discriminating against arbitration!  (The Supreme Court's decision would nevertheless be consistently pro-corporate, for those of you who take a more realist view of Supreme Court decisions.)

The reason I say "possible" is the same reason I said "probably," and it may make my entire analysis moot.  As I mentioned above, it is the California court's interpretation of the provision that matters, not my own.  And the California court did not explicitly adopt my analysis.  Rather, the California court said that it interpreted the provision to apply to California law irrespective of whether that law was pre-empted by California law.  So, to treat the California decision literally, it's not entirely clear the California Court of Appeals agreed with my interpretation, and, from the Supreme Court's analysis, it is that interpretation that matters, not its own, and not mine.  I do think its interpretation is consistent with mine, at least to the extent that both of us broadly found that the heart of the parties' meeting of the mind was simply "no arbitration provision."

But I don't think the Court was taking that detailed a look at things, so I can't be sure if it would have applied the "opposite" reasoning above in the reverse hypothetical.  While the text of that decision implies that it would not, I don't know if the decision should be read that broadly. One reason for that is because, once the Supreme Court ruled such class-action-waiver-bans preempted by the FAA, nobody would put such a provision in their arbitration clauses.   And the fact that such a provision would be eliminated does highlight the likeliness that the parties simply agreed to omit the arbitration provision, rather than to apply it the way the Court holds.  

The fact that such a provision would be eliminated for all post-2011 contracts also highlights the limited reach of this decision.  It simply is not likely to be one that ever repeats itself.  It's application required a confluence of events:  class-action waiver bans originally thought to be allowed under state law becoming retroactively barred by Supreme Court interpretation.  The only way for it to happen again is if the Supreme Court changes its mind on its own about that 2011 pre-emption decision, someone drafts a similar arbitration provision, and then the Supreme Court changes it back again.  Given how unlikely such a scenario this is, it is curious why the Supreme Court bothered to take this case in the first instance.

General thoughts on the December sitting

Sorry for the lack of blogging.  It has been a combination of being very busy and, to be honest, nothing particularly noteworthy in the legal world for me to blog about.  That seems odd because there have been a number of high-profile cases recently argued before the Supreme Court.  But I don't have much to say about them:

Evenwel (the case challenging whether voting districts can be apportioned by person, rather than by eligible voter): The result here seems pretty straightforward as a matter of basic doctrine.  We live in a representative democracy.  The Constitution itself requires, for purposes of determining Congressional apportionment, for representatives to represent a certain number of people, not voters.  The legal arguments supporting the petitioner are incredibly thin.  The practical difficulties of the challengers' claim is highlighted by the fact that we do not even have good information about the number of eligible voters in most voting districts.  But, like the Voting Rights Act cases and others, this Supreme Court has found ways to make up doctrine as it suits them for what many would think is partisan advantage.  I'm afraid whether the Supreme Court finds for Evenwel or not will simply depend on how shameless it is.  

Fisher II (the Texas affirmative action case)- I think it has been pretty clear that the Supreme Court has basically constructed a rule about affirmative action that, ever since O'Connor left the Court, allows for de jure affirmative action in the abstract only.  So the only real question is how much more battered will the hopes of people who support affirmative action get.  I think the more interesting question is one put forth by Ilya Somin at the Volokh Conspiracy.  Prof. Somin argues that even facially-neutral affirmative action plans that have the  intent of increasing minority enrollment are unconstitutional.  (In Fisher, it is the Texas "10%" plan that guarantees admission to all Texas students who finish in the top 10% of their class.  It is not being challenged in this case.) I think this is actually a very liberal (and doctrinally incorrect) argument that would create very wide repercussions:  

First - Whether legislation can have an intent (as opposed to a purpose) is a difficult question in and of itself.  Conservatives believe that a drafter's intent is irrelevant, and legislation should be interpreted as a segregated reader would interpret text, rather than read text as the drafter intended.  Liberals disagree (but only as a guide for interpreting text).  Somin would go further and read intent into a bill even when there is no text.  And intent in passing a bill - as opposed to interpreting text in light of purpose - is an impossible thing to determine because intent may vary from person to person.  Someone may vote for a welfare cut because they want money for tax cuts.  Another may do it because they dislike the poor or minorities.  And a third may do it merely to get support on a different bill.  Is the intent of Congress in passing this welfare reduction a violation of the 14th Amendment under Somin's theory?

Second - It's a pretty well-established doctrine of law that judicial inquiry into the actual intent of legislatures (and executives passing government action) should be avoided at practically all costs.*  This is why the rational and strict scrutiny tests normally used to determine constitutionality of laws is objective, not subjective, in nature.  Stating that subjective intent matters would create a host of problems, ranging from questions of who gets to do the factfinding to what intent matters and when is something "too" racially motivated.

Third - If this rule applies to affirmative action, will it apply to regular laws as well?  Conservatives have panned disparate impact analysis in the context of Constitutional rights, and have generally won.  What Somin is arguing for is not quite disparate impact, but it is getting there.  And given the Conservative southern strategy (where Lee Atwater infamously admitted that cutting government spending was broadly an appeal to racists), how many laws will we have to invalidate?  Liberals and conservatives have recently excused them of looking for whatever reason around to invalidate the other's preferred laws (think gay marriage bans, health care, Voting Rights Act, campaign finance refom, state immigration laws).  With Somin's theory applied broadly, this will go from Pandora's Box being slightly cracked to busted wide open.  But if it is applied narrowly, minorities will rightly wonder if the Equal Protection Clause of the Constitution is only applied broadly when it is used against them, rather than by them.

(I reserve the right to a more detailed version of this critique in a follow-up post).

Hyatt:  Hyatt is a case that involves the question of whether and when states may assert sovereign immunity, as a matter of federal constitutional right, when being sued in the state courts of other states.

I actually think this might be the most doctrinally interesting of the December cases.  My gut (and completely uninformed) reaction is that the challengers asking the federal government to interfere in the state's judicial proceedings itself sort of violates a form of federalism.  In that sense, I'm not even sure the case is procedurally ripe.  Instead, I think the federal court should essentially stay out of it until the state of Nevada takes a specific action *against* the state of California independent of merely announcing a rule of decision in its judiciary.  Should the state of Nevada try to attach or seize California's assets, then California could go and challenge that action - in an Original Jurisdiction case - before the Supreme Court.  And, in doing so, I think the sovereign immunity claim can be better distilled and applied when there really is a sovereign interest at play that must be vindicated by our Constitutional structure.

*In some cases, such as using pre-emptive strikes against black jurors, the test cannot be subjective.  Even then, we've seen, Courts have been reluctant to overturn even the most obvious of intentionally-racist acts that can be objectively defended.  

The Politics of Refugees and Bigotry

This is normally a law blog, but I am going off topic for a moment for a little self-therapy.  You see, I am in despair over the immediate turn towards bigotry in the wake of the Paris attacks.

There are over 4 million Syrian refugees registered with the United Nations.  These refugees live in a state of desperation, fear, and need, that most people (including myself) cannot possibly imagine.  Contrary to belief, they are not mostly men.  Instead, they are mostly women and children; only 11% of the 5 million are men of potential fighting age.  

They need help.  

The United States agreed to take in 10,000 of them over the course of a year.  That's  slightly more than 0.2% of the total.  It is a pittance, but at least it is something.  Even if the United States renewed that 10,000 person commitment for 10 years, that would still be 2% of the total population.  It is the least we could do.

One would think.

Numerous governors, mayors, Senators, and others have railed against taking *any* refugees.  Others have--naked in their bigotry--said they we should only take Christian refugees.  This has been mostly pushed by Republicans, but Democrats, either because they are equally ready to cash in hatred, or because they are too afraid to do the right thing, have also joined.  The House recently passed a bill which would effectively prevent any Syrian refugees from entering the country, by veto-proof majorities.  Hopefully the Senate will be more circumspect.

Let me make this absolutely clear:  The refugees pose no significant risk of harm.

First, the numbers:  There have been 784,000 refugees resettled into the United States in the last 15 years.  I do not know how many of them are Muslim, but given where the wars have happened recently, probably alot.  There have been exactly three terrorist plots uncovered among the 784,000,  and none of even those 3 posed a serious threat to America.  (In addition, I am aware of a handful of refugees who have been arrested for supporting ISIS; these were six refugees from the ethnic cleansing of Bosnia and one refugee rom the non-religious wars in Somolia.  None were recent--post-2000--immigrants, none had any ISIS or terrorist connections prior to coming to the United States, and none were seeking refuge *from* Islamic extremism, either Sunni or Shiite).

Second, the logic.  These are people who are *fleeing* ISIS.  They are not exactly people who are taking up ISIS's banner.  Most of them are likely fleeing because they are not radical Sunnis.  None of them are going to take up ISIS's cause, because if they were sympathetic to ISIS, they would not be fleeing.  

But what about some false flag campaign?  What if ISIS implanted fake refugees among the real refugees to access the United States and ultimately commit an act of terror?  Although a fun plot for the reboot of 24, it is absurd as a matter of logic.

Let's say you are ISIS, and you want to attack the country.  The easiest way to do that is to recruit Americans, of course.  Then you don't need to sneak anyone in.  (The attackers of Paris were all EU citizens, as far as we are aware). But let's say this is super top secret, the Americans kind of infiltation, and you can't risk recruiting Americans.  You need to embed a local.

Well, if you are going to do that, the refugee program seems like the absolute worst way to do that.  A refugee would be one of 5 million people who has fled the country.  The majority of them are living in official and unofficial refugee camps in Lebanon and Syria.  So you put your high value infiltrator there.  They have to live in squalor, risk death, disease, violence.  But let's say they survive that.   Then they have to apply for resettlement.  

Most likely, they have to apply through the UN refugee system.  But one can't be picky about where one gets refugee.  A refugee who is only interested in the United States won't pass the United States's vetting system.  And if the refugee-infiltrator wants the United States, they'll probably have to at least bring their family; a single military-aged male seeking refuge by himself is someone the US can easily avoid when deciding which people to take in. 

Okay, so that person now has precisely a 0.2% chance each year of being taken in by the United States.  To get that number up to a reasonable amount, you need more than one infiltrator, you need to separately have hundreds.  All to get maybe one or two terrorist families into the United States.  And at the cost of providing the government with significant details about yourself, where you have been resettled, etc.  Yes, the screening system is not perfect .  But it doesn't have to be perfect to adequately deter.  The screening and follow up effort still provides the government with a lot of information about your existence and location. This is not exactly an inconspicuous way of getting into the country.  Even if you get in, you're still being watched pretty closely.

If the US was a fortress impossible to impregnate, then, okay, maybe.  I mean, unlikely, but maybe.  But we are not.  Our borders are notoriously porous.  If you want to get a Syrian terrorist in, and you're willing to risk only getting in a percentage of your whole team, then you can send em through Mexico. Sure, they might be caught, but their odds are alot better than 0.2%.  You find Syrians with non-Syrian passports who can get tourist visas into the US.  The 2001 attackers did not need to come up with a convoluted plot to get into the country.  

So letting 10,000 Syrians suffer and die because of our terrified imaginations is not logical.  Sure, the risks are not zero - there is nothing in life where the risks are zero.  But a zero tolerance for any risk is bad policy, and a standard that we have never applied to any other situation.  

Instead, the opposition to the refugees are probably the product of one of several causes:

(1) Actual bigotry

(2) An appeal to that bigotry.

(3) A reflective instinct to believe or support their political party, or to rationalize that party's actions.

(4) Ignorance without the wisdom to realize one's own ignorance.

(5) An irrational (but understandable) fear, combined with the fallacy that doing something is always better than doing nothing.

(6) Those that believe the right answer is always the middle of two arguments.

I am aware that there is a certain ugly strain of political thought these days that demands tolerance of the intolerant.  So we have seen Democrats chide other Democrats for not respecting those that fear the refugees.  Mockery may not be helpful - it may, instead, merely be cathartic to those like us whose fear is the atmosphere of fear and hate itself. 

But, even if liberals take a political hit, and they will, they can't deviate from an absolutist position against the politics of fear.  The cost goes beyond the 10,000 lives at risk right now.  It also creates an atmosphere of hate and bigotry that can have enormous repercussions.

In the 1930s, political opportunists attacked Jewish refugees trying to flee the Germans.  The result led to an anti-semetic attitudes which affected the way World War II was fought, at the cost of perhaps a million Jews or more.

Let's not repeat the past.  Please.  Seriously.  And let's not give the jihadists exactly what they want, and turn this from a battle between Western powers and 100,000 or so dedicated jihadists, into a war between 1.6 billion Muslims and the 3 billion plus Christians, secularists, Jews, etc. who they want Islam to be at war against.

Now, back to your regularly scheduled programming.... (probably after Thanksgiving...)