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Justice Breyer’s Full Answer on Live Audio at SCOTUS Oral Arguments: Still Conservative with a Small “C”

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During the question-and-answer portion of Justice Stephen Breyer’s international law lecture at the Brookings Institution yesterday, an audience member from the Coalition for Court Transparency asked the justice about the possibility of live streaming audio from Supreme Court oral arguments. Justice Breyer gave a nearly six-minute reply which reiterated some of the same arguments he has made against live video in the past, but the answer did contain an interesting new tidbit at the end in which he mentions recent audio “experiments” from the D.C. Circuit.

Michelle Olsen of Appellate Daily published a transcription of the last part of this answer yesterday evening. The following is my transcription of the full question and answer, which I have slightly edited for clarity.

Breyer at Brookings

The relevant question starts at the 2:12:00 mark of the Brookings Institution video.

Audience Member: Alright, this is not a hot political question; it’s a hot legal question. My name is Karl, I’m with the Coalition for Court Transparency.

You referenced five areas [where] American judges might do well to consult foreign sources or foreign legal thought. High courts in Canada and the U.K. and many, many other countries have cameras.

I don’t want to know if you support cameras, because I already know where you stand on cameras in the Supreme Court–but there’s a nice lounge at the Supreme Court where Supreme Court bar members are allowed to listen to live audio. Why don’t we allow the live audio to be transmitted outside the building, to everybody else who might not have the money or means to come to Washington, D.C. and wait in line outside in the cold, [so that they can] listen to such audio?

Justice Breyer’s answer to this question begins at the 2:14:08 mark.

Justice Breyer: Now, to give my unsatisfactory answer to [the question] about cameras in the courtroom under the guise of radio, you have to understand that it’s a pretty tough question, and we’re pretty conservative–with a small “c”–when you start talking about our institution. I mean, we don’t know what would happen if we let cameras in the courtroom. And the risks would be–two [risks], and we don’t know what the answer is. Three [risks], actually.

One risk is that people would begin to think that the oral argument–which is about 5% [of what the Supreme Court does], almost all of our material is submitted in writing–they would begin to think that that was what we’re about. The oral argument! That would be misleading, but not deadly.

What might be worse is that people do relate to people. That’s good. You relate more to your family than you relate to your friends, than you relate to people you don’t know, and people you see you relate to more than people you just hear about, and statistics you relate to not at all. OK. That’s the human condition, and I think it’s probably a good one. But the job of an appellate court–and particularly our court, which is about three levels of appellate courts, or two–is to think about how our decision is affecting the 300 million people who aren’t in the courtroom. They’re not there. But they will possibly be affected by our ruling. And people might, well, just look–to the good guy and the bad guy. And that might have an impact on the effectiveness of the Court.

Or, what is the most obvious thing, and you get privately–opposite advice from different members of the press on this one. [Voices perspective of a SCOTUS justice] “It won’t affect us! I mean, we’re grown up, we hope. And there’s the press there anyway, And why will it affect what questions I ask? I have to watch what I say anyway!” Well, apparently, I don’t. But nonetheless, you have to watch it, it’s public and the press is there, so why would this make a difference? To which some members of the press will say, you just wait ’til you see how you react when you ask a question in good faith on A, and then it’s reported on various shows on television and they show a picture of you. You’ll be pretty careful, and maybe you’ll be careful to stop asking. That might be a public benefit, but nonetheless, you see the point. And you say, go see what happens in the Senate or the House, which perhaps has to respond to public opinion.

But the reason you have a court–the reason we decide constitutional questions–if you go back to Alexander Hamilton, is–why? Because this document [takes out pocket copy of Constitution]… it treats exactly the same way the least popular and the most popular person in the United States. That’s what it’s supposed to be. And by the way, he said, we better give the Court the power to review laws–why? Because if we give the President the power to say whatever he does is constitutional or not, he’ll always say it’s constitutional, and he has enough power already.

Why not give the power to Congress?  After all, they’re elected, and many countries have done that. To which Alexander Hamilton says–he doesn’t say it in these words–he says, what happens when the decision is right but unpopular? He says, I’ll tell you about Congress–they are experts in popularity. He says, believe me, they know popularity. But what will they do when it’s unpopular? So let’s take these judges nobody’s ever heard of–they don’t have the power of the purse, they don’t have the power of the sword–fabulous. They’re weak. And give them the authority. And when it’s unpopular–unpopular and important, and by the way, possibly wrong–I mean, I’ve participated on both sides of 5-4 decisions. Not as many as you think–there may be 20% [of decisions that] are 5-4, 50% are unanimous–but somebody’s wrong in these cases. Alright, so–and that is the question I get from the President of the Supreme Court of Ghana, a woman who is trying to further democracy and civil, human rights in Ghana, and from Ouagadougou [in Burkina Faso], and from countries all over–why do people do what you say?

That’s a pretty good question. And it’s taken us–I say, there’s no answer in this document [the Constitution], and Hamilton didn’t answer it, either. He didn’t know. Nobody knew. It’s two hundred years of history. You want people in your country to follow courts and the rule of law–go out to the villages. Don’t just talk to the lawyers. Don’t just talk to the judges. By the way, there are in our country–contrary to popular belief–309 of the 310 million are not lawyers. Alright? And I say, they’re the ones that had to support sending the troops to Little Rock to enforce integration. They’re the ones that have to decide they will follow decisions that they think are really wrong and really unpopular. And that takes time. But that’s part of our job. And who knows? So I say we’re conservative with a small “c.”

And the radio? I mean, the radio–[unintelligible] they tried that in the D.C. Circuit [which has since September 2013 provided same-day audio for its oral arguments], didn’t hurt anything. Could we experiment with that? Maybe. But that’s not right in front of us. So therefore, that’s [my] not answering [the question].

—–

As mentioned in the beginning of this post, most of Justice Breyer’s answer, which focuses on insulating the Court from the misconceptions of the public, retreads his previous statements about cameras in the courtroom. In March 2013, in response to questioning from a House Appropriations subcommittee, Breyer mentioned the Court’s conservatism with a small “c” on the issue, the potential distortion by the press, and the self-censoring effects televised arguments could have on the justices’ questioning. He said then: “I’m not ready yet. I mean, I want to see a little bit more of how all this works in practice. I’d give people the power to experiment. I’d try to get studies–not paid for by the press–of how this is working in California, of how it affects public attitudes about the law. I’d like some real objective studies–I know that’s a bore, but that’s where I am at the moment.”

In January 2014, Justice Breyer told an audience at The Washington Center for Internships and Academic Seminars that he suspects it is a matter of when, not if, oral arguments are televised, but worried about the “demonizing and angelizing” of certain members of the Court.

What made yesterday’s answer different (and encouraging for advocates of live streaming) was his begrudging acknowledgment at the end that the D.C. Circuit has adapted its procedures to make oral arguments more accessible to the public, with no harm done to the integrity or the perception of the court. I would not go so far as to call it Breyer’s endorsement of live audio–as Michelle Olsen pointed out, the D.C. Circuit still doesn’t have live audio, only same-day audio, and it’s unclear which of these two practices Justice Breyer’s musings on “experiments” referred to. Given that the Supreme Court currently releases its argument recordings just once a week on Fridays, though, even moving toward same-day audio at One First Street would be a small step in the right direction.

What Now for Same-Sex Marriage in Utah?

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The Supreme Court pushed the “pause” button on gay marriage in Utah yesterday, preventing any new marriages between same-sex couples from taking place until the case has been decided on appeal by the Tenth Circuit. Let’s take a second to unpack the justices’ order:

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OK, so there’s not a whole lot to unpack here. The grant indicates that Justice Sonia Sotomayor, the Circuit Justice in charge of handling stay applications arising from the Tenth Circuit, referred Utah’s request to the full court instead of deciding it herself. This was an expected outcome–as mentioned in my previous post explaining the stay application process, full-court consideration is the most efficient way to dispose of the request and prevent any “appeals” or resubmissions that could happen when an individual Circuit Justice rules on a stay. That the Supreme Court granted the stay was also not surprising. As Rick Hasen notes here, it was very likely that the Court (including even the justices who would support expanding same-sex marriage rights ((For an example of a Supreme Court justice advocating for an incremental approach to the recognition of a constitutional right, look no further than Justice Ruth Bader Ginsburg’s comments on Roe v. Wade. She has repeatedly said that abortion rights should have been settled state-by-state rather than in one fell swoop, which in her opinion had the effect of polarizing the national discussion. A similar argument regarding strategy has played out amongst same-sex marriage proponents.)) ) would want to slow things down on such an important, far-reaching constitutional question.

So what does the grant yesterday tell us about how the Court may rule on the merits in Herbert v. Kitchen, when it is inevitably appealed from the Tenth Circuit? The answer is: very little. We do know that the Court will likely choose to hear the case–based on the requirements for successfully obtaining a stay (also detailed in the flowchart from my previous post), the Court would not have granted Utah its stay unless it thought there was a “reasonable probability” that four justices would grant certiorari when the case eventually winds its way up. We also know from the grant requirements that the full court thought there was a “fair prospect” that five justices might eventually overturn federal district Judge Robert Shelby’s ruling on the Utah same-sex marriage ban, probably because of his game-changing conclusion that same-sex marriage is a fundamental constitutional right–an issue that the Supreme Court itself assiduously avoided addressing in last year’s DOMA and Proposition 8 litigation.

Beyond these questions of probability, however, the grant itself contained no reasoning for the Justices’ decision and addressed none of the substantive arguments brought up by Utah and the same-sex couple plaintiffs, so it is hard to divine how they will rule on the merits. The criteria for granting a stay are different from the standards used for ruling on the substantive questions. The fact that it chose to hit the brakes on same-sex marriage in Utah now does not necessarily mean that the Court will strike down Judge Shelby’s ruling.

A more pressing question created by yesterday’s grant is what happens now to the 1,360 same-sex couples who received marriage licenses from the state–a majority of whom have already used the licenses to get legally married in the seventeen days before the Supreme Court halted the process. Interim Utah Attorney General Sean Reyes said in a press conference yesterday afternoon that he “doesn’t know.” These couples are in “legal limbo,” “uncharted territory.”

My personal feeling is that yesterday’s stay should not erase or invalidate the hundreds of same-sex marriages that were legally carried out in Utah in the period between Judge Shelby’s initial December 20 ruling and the Supreme Court order. Up until yesterday, while Utah’s stay request was slowly moving its way up the federal courts, Judge Shelby’s decision striking down Amendment 3 was still controlling in the state, so these marriages did not take place in violation of any court order or state ban. A trickier question is what happens to the couples who obtained marriage licenses legally during those seventeen days but had not actually gotten married by the time that the Supreme Court issued the stay. We should fully expect further “offshoot” litigation on this matter.

Finally, it’s worth noting that Utah is still weighing proposals to bring in outside counsel to help with Kitchen, which will be scheduled for argument before the Tenth Circuit this spring. Outside help would probably be a wise idea, given the state’s well-documented bungling in the last few weeks. That Utah dropped the ball repeatedly on moving its stay application along–first by neglecting to ask Judge Shelby at the litigation stage for a stay of any possible ruling in favor of the same-sex couples, then by running to the Tenth Circuit for an emergency stay before Judge Shelby had even ruled on its request, then by waiting a full week to appeal the Tenth Circuit stay denial to Justice Sotomayor–is the reason why the state is now dealing with such a large number of marriages that may or may not be legal.

After Political and Weather Delays, Patricia Millett Set For Confirmation Vote in Post-Nuclear Senate

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President Obama with D.C. Circuit nominees (L-R) Robert Leon Wilkins, Nina Pillard and Patricia Millett in June 2013. Picture by Olivier Douliery, McClatchy-Tribune News Service.
President Obama with D.C. Circuit nominees (L-R) Robert Leon Wilkins, Nina Pillard and Patricia Millett in June 2013. Picture by Olivier Douliery, McClatchy-Tribune News Service.

Nearly three weeks after Democrats triggered the “nuclear option” and altered filibuster rules to make it easier for sitting presidents to appoint federal judicial nominees, the Senate is set to vote on Patricia Ann Millett’s nomination to the United States Court of Appeals for the District of Columbia Circuit at 10 a.m. on Tuesday morning.

President Obama originally nominated Millett, who has argued 32 cases before the Supreme Court and currently co-heads the Supreme Court and national appellate practices at the Washington, D.C. law firm Akin Gump Strauss Hauer & Feld LLP, to a seat on the D.C. Circuit in June 2013. Senate Republicans deemed Millett too partisan and filibustered her nomination in October, which blocked her from receiving a confirmation vote before the full Senate.

Under the previous rule, Senate Democrats would have needed a sixty-person supermajority to overcome the minority party’s filibuster and force a confirmation vote—a number that they fell short of, with Republicans holding forty-five out of 100 seats. After the Republicans used the same tactic this fall to block two more D.C. Circuit nominees, however—Georgetown law professor Cornelia “Nina” Pillard and United States District Court Judge Robert Leon Wilkins—Democrats changed the rule outright so that only a simple majority would be required to obtain a confirmation vote. With the math on the Democrats’ side now, Millett is expected to be confirmed today. No date has been set yet for voting on Pillard and Wilkins.

The D.C. Circuit is widely referred to as the second most important court in the country after the Supreme Court, as it hears a disproportionate number of high-profile, high-impact regulatory and administrative cases compared to the other twelve federal circuit courts. In a paper published by the Cornell Journal of Law and Public Policy last week, four former D.C. Circuit law clerks examined the jurisdiction of the court and further noted that Congress often “carve[s] out certain areas of federal law as the special preserve of the D.C. Circuit,” which, when combined with the Supreme Court’s tendency to review only a small number of cases each term, effectively gives the D.C. Circuit “the final say—and the only appellate say—over numerous laws and rules affecting the entire nation.” The article’s authors found 150 statutory provisions in the United States Code that referred specifically to the D.C. Circuit, as opposed to eighty-eight mentions for the rest of the circuit courts combined.

In addition, the Circuit has become a stepping stone of sorts for judges aspiring to the highest bench of all: four out of the nine sitting Supreme Court justices have previously served on the D.C. Circuit. ((They are Chief Justice John G. Roberts, Jr. (2003-2005) and Justices Ruth Bader Ginsburg (1980-1993), Antonin Scalia (1982-1986) and Clarence Thomas (1990-1991).))

Of the eleven seats on the D.C. Circuit, four are currently filled by Republican-appointed judges and four by Democratic appointees, while three seats remain vacant. Because of this numerical tie, any changes that President Obama makes to its membership is seen as tipping the court’s balance toward his side of the political spectrum. Senate Republicans have tried to pre-empt this by proposing legislation earlier this year that would have eliminated the three vacancies on the circuit entirely, arguing that the court does not need eleven judges because it faces a lower caseload than it has in past years (and accusing Obama of “packing” the court by filling the empty seats). Given last month’s changes to the filibuster rule, however, this bill is likely to become moot as Democrats now push forward with confirming the President’s nominees.

The vote on Patricia Millett was originally scheduled for Monday evening but was postponed after bad weather in D.C. delayed the travel plans of some Senators.

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After Illinois, Look West for the Next Same-Sex Marriage Battles

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Celebrations at the Chicago Pride Parade in June 2013. Today, Illinois becomes the 16th state (plus Washington, D.C.) to legalize same-sex marriage.

When Illinois Governor Pat Quinn signs a same-sex marriage bill into law today, the Land of Lincoln will officially become the 16th state to grant recognition to same-sex spouses, just one week after Hawaii.

2013 has been a banner year for gay rights activists–in addition to the Supreme Court decisions striking down the federal Defense Of Marriage Act and permitting same-sex marriage in California, the movement has seen the legalization of same-sex marriage almost double at the state level. Nearly one year ago, when the Supreme Court first agreed to hear United States v. Windsor and Hollingsworth v. Perry, only nine states and the District of Columbia recognized same-sex marriage.

Of course, their work is still far from done. After Illinois, the focus will turn west toward New Mexico and Oregon.

Traditionally, states have legalized same-sex marriage through one of three ways: by referendum, through the state legislature, or via a ruling from the state’s judiciary.

New Mexico, the only state that has neither a constitution nor a state law explicitly addressing same-sex marriage, could become the 17th state to legalize such unions, thanks to the third route. Because of the state law’s silence on the matter, eight out of thirty-three counties began issuing marriage licenses to gay and lesbian couples after the Windsor and Hollingsworth rulings–eventually prompting all thirty-three New Mexico county clerks to ask the state supreme court for clarification on the constitutionality of same-sex marriage. The New Mexico Supreme Court heard oral argument in October 2013 and is expected to hand down a decision by the end of this year.

If the New Mexico Supreme Court rules in favor of legalizing same-sex marriage, the state will join Massachusetts, Connecticut, Iowa, California and New Jersey as having decided the issue through a judicial ruling.

Meanwhile, advocates in Oregon are planning to overturn the state constitution’s ban on same-sex marriage through a referendum. The coalition Oregon United For Marriage is in the process of collecting the 116,284 signatures required by next July in order to place the question on the ballot in November 2014. If it succeeds (as of today, it needs only 1,204 more names), there’s cause for optimism: a December 2012 poll showed that 54% of Oregon voters would support marriage equality, versus 40% who would vote against it. Though gay and lesbian couples cannot be legally married in Oregon just yet, the state announced in October 2013 that it would start recognizing valid same-sex marriages from other states.

Should a same-sex marriage initiative pass in Oregon, the state will join Washington, Maine and Maryland as having settled the issue by popular vote.

The Human Rights Campaign anticipates that 40% of Americans will live in a state with marriage equality by the end of 2014.

At Fernandez v. California Oral Argument, Supreme Court Debates What It Means To Be Roommates

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At yesterday’s oral argument over a warrantless search, Breyer tries to draw lines while Scalia seems to have made up his mind. Picture via The Atlantic.
At yesterday’s oral argument, Breyer tries to draw lines while Scalia seems to have made up his mind. Picture via The Atlantic.

Last term, the Supreme Court’s Fourth Amendment cases made for some curious cross-aisle alliances, pitting a privacy-friendly Justice Scalia and his liberal colleagues Ginsburg, Sotomayor and Kagan against a government-supporting Justice Breyer and the conservative bloc of Chief Justice Roberts and Justices Alito and Thomas (and sometimes Kennedy). Wednesday’s oral argument in Fernandez v. California, however, saw Breyer and Scalia falling back along more conventionally ideological lines, with the former attempting to balance a rather unsympathetic defendant’s rights against a domestic violence victim’s needs, and the latter coming out in favor of a more expansive reading of law enforcement’s investigatory powers.

Fernandez v. California stems from a 2009 encounter between Los Angeles police and a man suspected of committing robbery and gang-related assault, who was spotted near the crime scene and subsequently seen running into an apartment. After Fernandez’s live-in girlfriend, Roxanne Rojas, opened the door for officers, fresh bruises and blood visible on her body, Fernandez told them that they could not legally come inside. He was removed from the premises anyway based on suspicion of domestic violence, arrested and taken to the police station. Two officers then returned to the apartment without a warrant and received consent from Rojas to search the premises, where they found evidence that would later be introduced at Fernandez’s robbery and assault trial, resulting in his conviction. The question before the Supreme Court now is whether the police violated Fernandez’s Fourth Amendment rights by warrantlessly searching his home with only the permission of the co-tenant girlfriend, even though Fernandez had earlier told the police in no uncertain terms that they could not enter. (If so, the state would not have been able to use the incriminating evidence from the apartment at his trial.)

In 2006’s Georgia v. Randolph, the Supreme Court established that a co-occupant’s objection to the police search of a home overrides another co-occupant’s consent if both co-occupants are present. California argues that its search did not violate Randolph because Fernandez was absent at the time the police officers returned and Rojas, as the only present co-tenant then, had the right to open her home to whomever she wished to grant entry. The removal of Fernandez from the apartment–even if it was forcible–effectively nullified his refusal to consent to a search.

Fernandez, on the other hand, interprets Randolph to mean that once a physically present co-tenant has objected to the search, “an objection… remains in effect until officers learn that the objector no longer wishes to keep the police out of his home”–or until the police get a warrant. In other words, for the seven-year-old precedent to have any force, the police must not be allowed to gain consent for a warrantless search simply by carting an objecting tenant away from the premises.

This reading of Randolph appeared to be in trouble from the moment that Justice Breyer– whose Fourth Amendment jurisprudence typically reflects an optimistic view of the government using its investigatory powers in good faith–opened questioning with a hypothetical about a domestic abuse victim who is unable to ask the police to come investigate a shared home for evidence of the crime even after the assailant has been arrested, because there is no clear probable cause for a warrant and no consent from the violent co-tenant. Breyer is clearly troubled by Fernandez’s argument, which he believes would deny Rojas her rightful authority as co-occupant to admit a visitor into their home during the 500-plus days he spent in custody.

On the other hand, Breyer, who joined the majority (and authored a concurrence) in Randolph, also doesn’t want to undermine his previous position by giving free rein to law enforcement to change presences into absences. So he tries to reconcile his vote in Randolph with his unease in Fernandez with a compromise: the known objection of a tenant who is then removed from the house by law enforcement could remain valid for a limited “reasonable time” afterward (the exact definition of “reasonable time” to be decided by the lower courts), during which the police cannot search the house without a warrant.

Unfortunately for Breyer, none of his colleagues seem terribly receptive to this idea. Of the nine justices, Alito articulates the case against Fernandez most vociferously, suggesting at several points that Georgia v. Randolph was wrongly decided and ought to be overturned entirely. “I don’t understand why the fact that one is a joint tenant is not the end of the analysis. Why shouldn’t it be?” Justice Alito asked Fernandez’s lawyer, indicating his belief that present consent should always override a present objection, much less an absent one. For Alito, Randolph has got it reversed–since he can’t imagine having the authority to ever tell his co-tenant what visitors she could or couldn’t permit into the home, Rojas’ consent alone should have disposed of the entire case.

Justice Scalia, who was in last Term’s cases a champion of privacy interests and mistrustful of government in search and seizure cases, dissented in Georgia v. Randolph, in part over concerns that abusers would use the rule privileging present objections to prevent police from investigating domestic violence, over the wishes of their battered partners. Today, he returned to that stance, telling Fernandez he was asking for an overbroad extension of a narrow ruling. Likewise, Chief Justice Roberts (who dissented in Randolph) and Justice Kennedy (who was in the majority) treated Fernandez’s Fourth Amendment rights as virtually nonexistent in this situation, repeatedly stating that assault victims should not be deprived of the law enforcement assistance they might want to ask for in the abuser’s absence. The fact that Fernandez is basically the world’s worst roommate has made this an easier case for them to decide.

USA - Politics - Supreme Court Nominee Judge Sotomayor on Capitol Hill
Sotomayor thinks the police need to try harder before resorting to warrantless searches. Picture via The New Yorker.

With the conservative justices focusing mainly on the social customs of roommates and the rights of Fernandez’s co-tenant, it fell on Justice Sotomayor, the most vocal defender of Fernandez’s position yesterday, to point out that California’s proposed reading might grant law enforcement too much control in situations where they already have a great amount of power. Sotomayor questioned the wisdom of giving the police carte blanche to manipulate Randolph’s absence/presence test –“[a]ll they have to do is arrest and remove people”– and circumvent proper search and seizure procedures. When California’s lawyer told Justice Breyer that his “reasonable time” compromise would not be a sufficiently “clear answer” for law enforcement, Sotomayor interjected: “How about a clear answer? Get a warrant.” She reiterated this point again later: “I don’t know why that’s so difficult for police officers to understand. Your first obligation under the Fourth Amendment is to get a warrant.”

While that may be true in principle, there’s an argument to be made that the Roberts Court has been slowly weakening the warrant requirement over the years, and the unsympathetic facts of Fernandez’s case surely did not help his cause. From today’s argument, it looks as though the Supreme Court will reduce Georgia v. Randolph to “nothingness,” as Justice Ginsburg mused. Sotomayor may be able to convince Ginsburg and Kagan, who both showed some discomfort with the amount of control their conservative colleagues would hand to the police. She might also get Breyer’s vote if she can somehow figure out a test that is consistent with both his Randolph concurrence and his desire to limit it in situations like these. Without the support of Scalia, however, the list of justices supporting Fernandez’s claim is stuck at four, which, in the Supreme Court, is still a losing number.

Schuette v. Coalition to Defend Affirmative Action: Death By A Thousand Cuts for Race-Based Affirmative Action?

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Michigan Attorney General Bill Schuette will defend Proposal 2, which changed the state constitution to ban affirmative action in public education, before the Supreme Court Tuesday. (Picture via Detroit Free Press)
Michigan Attorney General Bill Schuette will defend Proposal 2, which changed the state constitution to ban affirmative action in public education, before the Supreme Court Tuesday. (Picture via Detroit Free Press)

Tomorrow afternoon, the Supreme Court will once again tackle the thorny question of affirmative action in higher education, less than four months after bouncing Fisher v. University of Texas back to a lower court for a newly-tightened and more rigorous examination of the constitutionality of Texas’ race-conscious undergraduate admissions process. ((Fisher will be heard on remand by the Fifth Circuit on November 13th of this year.)) While the central dispute in Fisher involved the limits of one university’s specific plan to use race as a factor amongst others to achieve a diverse student body, the question in Schuette v. Coalition to Defend Affirmative Action comes at the issue from a different direction: can a state’s voters change their constitution to ban public universities from considering race in their admissions plans at all?

In 2006, Michigan voters did precisely that by passing Proposal 2, which amended the state’s constitution to prohibit preferential treatment on the basis of race, sex, ethnicity or national origin in its public education system. ((Other parts of Proposal 2 also barred preferential treatment for the same categories in public employment and public contracting, but the challengers in Schuette are only questioning the validity of the affirmative action ban in the context of public education.)) Proposal 2 was written as a direct response to Grutter v. Bollinger, the 2003 Supreme Court decision that reaffirmed the constitutionality of universities considering race as one factor in holistic admissions policies, while simultaneously noting that such plans, if challenged, were still subject to strict scrutiny, the toughest level of judicial review. Under the strict scrutiny standard, a university (in Grutter, the University of Michigan Law School) must do two things: it must show that it has a compelling interest in the challenged admissions scheme, and then show that it has narrowly tailored its admissions process to fit that interest.

In the Grutter opinion, Justice Sandra Day O’Connor wrote that the First Amendment right of a university to attain a diverse student body–a principle first laid out in 1978’s Regents of the University of California v. Bakke–sufficed as a compelling interest in the context of higher education. “[U]niversities occupy a special niche in our constitutional tradition,” she asserted, and are therefore entitled to “educational autonomy” that allows them to “make [their] own judgments as to … the selection of [their] student body.” Because of this First Amendment right, the Supreme Court should in the process of applying strict scrutiny accord a great deal of deference to the University of Michigan’s “educational judgment that diversity is essential to its educational mission.” In fact, where diversity is the compelling reason for an affirmative action plan, courts should presume the school has acted “in good faith” in narrowly tailoring the plan to that interest. Using this standard, the Grutter court deemed constitutional the University of Michigan Law School’s admissions plan.

Three years after Grutter, opponents of affirmative action successfully pushed through Proposal 2 in order to stop the state’s universities from implementing such plans. In turn, the day after the amendment’s passage, a number of individuals and interest groups (including the Coalition to Defend Affirmative Action) banded together to file suit against Proposal 2 as it pertained to higher education. A federal district court upheld the affirmative action ban, but an en banc Sixth Circuit subsequently overruled that decision, 8-7, in 2012 on the basis that the prohibition violated the Equal Protection Clause of the Fourteenth Amendment.

Whose rights were being violated? Was it the universities’ rights to put together a diverse student body in order to fulfill its educational mission–an academic freedom that, as Bakke and Grutter told us, long has been viewed as a special concern of the First Amendment? Given what Justice O’Connor had written in 2003, one might have assumed so, but the Coalition and its allies had decided to take a different tack. Instead, they–and the en banc Sixth Circuit opinion, in turn–relied on the “political restructuring” doctrine first set out in 1969’s Hunter v. Erickson and later reaffirmed in 1982’s Washington v. Seattle School District No. 1 to find that Proposition 2 had unconstitutionally deprived minorities of equal access to “the tools of political change.”

In Hunter v. Erickson, the citizens of Akron, Ohio overturned a municipal fair housing ordinance and changed the city charter to require a citywide vote on any similar laws in the future. The Supreme Court invalidated the amendment, ruling that “the State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person’s vote or give any group a smaller representation than another of comparable size.” In Washington v. Seattle, the Supreme Court struck down a voter-approved state law that banned the use of mandatory busing in general, non-racial terms, but included so many exceptions that its true effect was to prohibit busing for the racial integration of public schools. Applying Hunter, the Seattle Court found Washington state had placed “unusual burdens” on the ability of racial minorities to enact legislation “specifically designed to overcome the ‘special condition’ of prejudice.”  Because the majority of voters had created an extra obstacle in the political process that specifically targeted a minority group unlikely to win at the ballot box, the judiciary was obligated to step in and “[safeguard] the interests of those groups that are relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.”

Taken together, Hunter and Seattle created a two-part rule for determining when an enactment has engaged in impermissible political restructuring: (1) the law in question has a racial focus that targets a program that “inures primarily to the benefit of the minority,” and (2) reallocates political power in a way that puts special burdens on the minority group.  Applying this test, the Sixth Circuit found that Michigan’s Proposal 2 disadvantages minorities in this exact manner, by removing the decision of whether to use race consciousness in university admissions from the educational institutions and fixing the ban in the state constitution. Now, a citizen of Michigan who wants a public college or university to consider race as one factor in the admissions process–a practice still constitutional under Supreme Court precedent–cannot merely lobby the university for such a policy, as an individual who desires special preferences for legacies or athletes can do. Rather, he or she must undergo the expensive and time-consuming process of amending the state’s constitution as well.  This showed, the Sixth Circuit concluded, the majority had “not only won, but has rigged the game to reproduce its success indefinitely.”

University of Michigan students at a pro-diversity rally on October 9, 2013. (AP Photo/The Ann Arbor News, Melanie Maxwell)
University of Michigan students at a pro-diversity rally on October 9, 2013. (Picture by AP Photo/The Ann Arbor News, Melanie Maxwell, via Monroe News)

Whether the Supreme Court agrees with the Sixth Circuit opinion will depend on how it distinguishes Proposal 2 from the laws challenged in Hunter and Seattle. Michigan Attorney General Bill Schuette (rhymes with ‘duty’) argues that the Sixth Circuit misapplied the political restructuring rule, which is only relevant to laws that create political obstacles to equal treatment, not laws that bar preferential treatment as Proposal 2 does. Rather, by “prohibit[ing] the State from classifying individuals by race or gender,” Proposal 2 actually furthers, not subverts, the goals of the Equal Protection Clause. “It is curious to say that a law that bars a state from discriminating on the basis of race or sex violates the Equal Protection Clause by discriminating on the basis of race and sex,” the Schuette brief states, in an unmistakable echo of Chief Justice John Roberts’ most famous line in Parents Involved in Community Schools v. Seattle School District No. 1, a 2007 case involving affirmative action at the elementary school level: “The only way to stop discriminating on the basis of race is to stop discriminating on the basis of race.” In addition, Schuette maintains that Proposal 2 could not have targeted a politically powerless minority, as the amendment bars both preferential treatment for race and for gender. “[T]o the extent [Proposal 2] can be characterized as ‘disadvantaging’ any groups, those groups constitute a majority of Michigan’s population,” the brief states, arguing that it would be much easier than the Sixth Circuit suggests for Proposal 2’s opponents to overturn the amendment.

Given the way that each Justice has voted on affirmative action programs in the past, there is good reason to believe that Chief Justice Roberts and Justices Alito, Thomas and Scalia will be sympathetic to Attorney General Schuette’s arguments. Though the Sixth Circuit’s en banc opinion purposely avoided revisiting Grutter and discussing the constitutionality of affirmative action, focusing solely instead on the political restructuring arguments, it is hard to imagine that Roberts, Alito and Scalia’s unease with race-conscious admissions policies will not come out in the oral argument tomorrow. Justices Sotomayor, Ginsburg and Breyer, on the other hand, are likely to be skeptical of Schuette’s position. Since Justice Kagan has recused herself from this case and there are only eight justices voting, a 4-4 split would allow the Sixth Circuit decision invalidating the affirmative action ban to stand–making Justice Anthony Kennedy, once again, the likely decider.

As I explained in a piece on Fisher and affirmative action last year, Justice Kennedy has long harbored conflicting feelings about affirmative action programs. Just last Thursday, Jess Bravin of The Wall Street Journal asked the justice whether the inclusion of women and ethnic minorities on the Court had benefited the institution. Kennedy replied: “Sure, I think it’s helpful that we have different points of view. I’m not sure that rigid categories of gender and ethnic background are always proxies for diversity, but it gives legitimacy to what the court does.” This, in a nutshell, is Kennedy’s continuing attitude toward affirmative action in public education–it’s somewhat good, but it’s also a somewhat lazy way to achieve true diversity. He doesn’t have a definite answer about how exactly schools can work around this contradiction, but he knows that he wants them to try harder. How well Proposal 2’s challengers fare at tomorrow’s oral argument may hinge on their ability to convince Kennedy that these schools should not be barred from even giving it a shot.

So where does all of this lead us? Personally, I find it most helpful to view Fisher and Schuette as parallel cases that hammer away at affirmative action from two different sides. When the 7-1 Fisher decision was first handed down in June, many supporters of affirmative action breathed a sigh of relief, as they had feared a wider-ranging decision ruling racial affirmative action unconstitutional outright. However, with Kennedy’s majority opinion in Fisher ordering the lower court to give “no deference” to the University of Texas’ narrow tailoring on remand, the public university’s First Amendment right to a diverse student body has been all but gutted, making it much harder for schools to defend race-conscious admissions policies. Schuette now presents another possible alternative for states to defeat affirmative action by pre-emptively prohibiting it, thus eliminating the need to even bring the university to court. In other words, the Roberts Court may well choose a “death by a thousand cuts” strategy rather than one fatal body blow–especially with Justice Kennedy’s ongoing ambivalence–but the result remains the same.

Some Thoughts on DOMA on the Eve of Supreme Court’s Ruling

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Edie Thea
Thea Spyer and Edie Windsor. Windsor is suing the federal government for the return of over $363,000 that it charged her in federal taxes after she inherited her late wife Spyer’s estate. Had Windsor been married to a man instead of a woman, she would have been exempt from the tax. Picture via CNN.

We are now hours away from the last rulings of the Supreme Court’s term, and we know for certain that we’ll be getting a decision in United States v. Windsor, the challenge to the federal Defense of Marriage Act (as well as Hollingsworth v. Perry, the California Proposition 8 case). On the eve of what will surely be a historic day for gays and lesbians across the country, it’s worth going back and reading the March oral argument for the case. A few points I’d like to make ((With the major caveat, of course, that I realize oral arguments are not always an accurate indicator of the eventual outcome of a case.)):

  • Based on the way the other Justices were falling in line behind his questions at the oral argument and some deduction skills on the part of SCOTUSblog, there’s a decent chance that Justice Anthony Kennedy has the majority opinion in Windsor.
  • Assuming that Windsor isn’t decided on a standing issue (and I freely admit that it could be), I expect a Kennedy opinion to discuss states’ rights. Traditionally, family law has been left exclusively to the states, and Kennedy seemed quite concerned at the oral argument about the federalism issues implicated by DOMA, which orders the federal government not to recognize same-sex marriages even if they are legally recognized by the state. At one point, he reminded Paul Clement, the attorney defending the law: “[DOMA] applies to over 1,100 federal laws… when it has 1,100 laws, which in our society means that the Federal government is intertwined with the citizens’ day-to-day life, you are at real risk of running in conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody.”
  • Alternatively, if it does reach the merits of Windsor, the Supreme Court could strike down DOMA as a violation of the Fourteenth Amendment’s Equal Protection Clause (i.e. the law is unconstitutional because it singles out same-sex people for unfavorable treatment versus their opposite-sex counterparts). Such a ruling would, going forward, provide heightened legal protections for gays and lesbians in the face of discriminatory laws. However, this is also a much broader and groundbreaking route, and I’m not convinced that Kennedy will take it if he can decide the case based on a narrower states’ rights argument instead.

Associate Justice Elena Kagan Investiture Ceremony

While the lion’s share of attention re: DOMA has been focused on Kennedy (including, of course, this post, which has already given him three bullet points), I also want to highlight a couple of points that Justices Ruth Bader Ginsburg and Elena Kagan made at the Windsor oral argument:

        • Ginsburg drew big laughs at the argument when she compared the current state of same-sex marriage to “skim milk”––i.e. not the real thing. Snappy sound bite aside, however, it’s interesting to note that Ginsburg–who by all accounts had a happy, fulfilling marriage to the late tax attorney Martin Ginsburg–was the one justice who focused the most on the everyday effects DOMA has on very real people and very real relationships. Again and again, Ginsburg steered the discussion back to the everyday hardships caused by this law–the loss of benefits, a higher tax burden, the inability to take leave to tend to a sick spouse–implicitly asking her colleagues to think about what a marriage really means. We need to strike down DOMA, she was saying, because it is unconstitutional to subject these Americans to a lower quality of life than what their heterosexual brothers and sisters expect and receive.
        • Whereas Justice Ginsburg made it a point to talk about (to put it in a cheesy way) love being love, Justice Kagan had an equally compelling observation about hate. Kagan’s strategy at oral argument was to focus on the people behind the law rather than the people the law affected. DOMA has no place in our society, Kagan suggested, because there are indications that it was motivated by “fear,” “animus” and “moral disapproval” against gays and lesbians–all constitutionally impermissible reasons for imposing differential treatment on a whole class of people. Memorably, she shut down Paul Clement when he tried to dispute this by reading aloud the House Report for DOMA: “‘Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.'”
        • Together, Kagan and Ginsburg’s arguments about the suspect motivations and unjust results of DOMA made for a pretty good one-two punch. Assuming, again, that Kennedy actually has the majority opinion and dispatches DOMA based on a theory of states’ rights, I’m really hoping for a concurrence or two from either (or both) of these Justices, laying the intellectual groundwork for an equal protection decision somewhere down the line.
        • If that is the outcome, we can expect at least one fiery dissent as well. My money’s on Justice Scalia, who just last Friday gave a speech to the North Carolina Bar Association insisting that courts had no business deciding moral issues, which should be left to the political process. (He forgets that mixed-race marriage was also considered immoral back when Loving v. Virginia [the 1967 Supreme Court decision overturning anti-miscegenation laws] was decided, and that it was the Court that pulled public opinion along on this, not the other way around.)

Finally, it bears remembering that exactly ten years ago, the Supreme Court issued its landmark decision in Lawrence v. Texas, striking down the criminal convictions of two men who had been arrested and tried under a Texas law that prohibited certain forms of sexual conduct between members of the same sex. In overruling an earlier Supreme Court decision that had upheld the application of state sodomy bans to gay and lesbian sexual activity, majority opinion author Justice Anthony Kennedy invoked the Founding Fathers:

They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

In a few short hours, we’ll find out just how committed Kennedy and the rest of the Supreme Court remain to this principle.

 

Right Question, Wrong Case: Louisiana Dodges a Bullet as Supreme Court Dismisses Inmate’s Speedy Trial Claim

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Samuel Alito
Tl;dr version of today’s dismissal: Jonathan Boyer is a man who deserves to be in prison, so it’s not necessary to talk about what Louisiana’s criminal justice system might have gotten wrong. Picture of Justice Samuel Alito via PBS.

(Update: This post was revised on April 30, 2013. See the post history at the bottom for more details.)

Back in January, I wrote in this space about Boyer v. Louisiana, in which an indigent death penalty defendant argued that the state had violated his constitutional right to a speedy trial when it failed to provide funds for his court-appointed counsel, resulting in a seven-year wait for trial from prison. The Supreme Court had just heard oral argument on the agreed-upon question of whether Louisiana’s lack of necessary funds for defendants could be weighed against the state under the Court’s speedy trial analysis. My answer to this key issue then was (and still is) yes–regardless of Jonathan Boyer’s eventual conviction for the murder for which he was charged, the state needs to bear some responsibility for its failure to repair the infamous and well-documented funding crisis in its public defense system, which has led directly to long delays for the trials of indigent defendants.

Today, however, the Supreme Court dismissed Boyer’s case without even reaching this important constitutional question, seemingly unable to look past the heinous shooting death of which Boyer stood accused. In a one-sentence, 5-4 decision, an ideologically-divided Court stated that it had been “improvidently granted” (or, “DIG,” in Court-watcher parlance), meaning that it should have never agreed to hear the case at all. The reason? As Justice Samuel Alito explains in his concurrence, ((Justice Alito’s concurrence was joined by Justice Clarence Thomas, who, as you may remember, stole the show at the January argument by breaking a nearly seven-year silence and cracking a joke about the quality of Boyer’s defense counsel.)) some of the justices do not accept the premise that it was actually Louisiana that caused the “lengthy delay between [Boyer’s] arrest and trial,” despite the state’s longstanding problems with indigent defense. Rather, they believe that the defendant himself convoluted and muddled the path to trial. Since they don’t think that Louisiana was at fault, the question that the Court had originally agreed to hear–which had assumed the state was the party responsible for the delay–was not the correct one the case should be decided on.

To reach DIG, Justice Alito had to step over the Louisiana Court of Appeals’ factual finding that “[t]he majority of the seven-year delay was caused by the ‘lack of funding’” and the state’s own admission that it could not free up adequate money to pay Boyer’s two court-appointed counsel to mount a capital murder defense. Attributing Louisiana’s admitted lack of funds to mere “confusion about which branch of the state government was responsible for paying [the defense attorney’s] fees,” Alito looks to the record and describes the state getting railroaded by the defendant’s counsel when in fact it was trying to bring Boyer to justice promptly. In Alito’s recounting, Boyer’s attorneys took advantage of the “confusion” by repeatedly delaying a funding hearing, as well as asking for multiple continuances of trial even after the state dropped its pursuit of the death penalty (thus making the case less expensive to defend). Explaining away the plain language of the Louisiana Court of Appeals’ conclusion about the cause of delay, Alito insists that the words “lack of funding” “most likely means” the hoopla surrounding the funding of the indigent Boyer’s trial (which to Alito was largely caused by Boyer himself), rather than, well, the state’s lack of funding.

Of course, in the eyes of the Supreme Court’s conservative majority, what really did Boyer in is the fact that he was eventually convicted of murder, a fact that makes him a less sympathetic plaintiff than if he had been exonerated at trial after languishing for seven years in prison. Just to remind us all of what kind of person the state was dealing with, Alito writes:

The evidence of petitioner’s guilt was overwhelming. He gave the police a detailed statement describing the murder; his brother, an eyewitness, agreed to testify about the crime; multiple other members of petitioner’s family told police that they had heard petitioner confess; and petitioner’s fingerprints were found in the victim’s truck.

Accordingly, a sense of “well, he deserved it anyway” permeates the concurrence–Jonathan Boyer was found guilty of shooting a man to death, so it’s no big loss to society to dismiss his case and avoid the larger question of whether Louisiana also did something wrong here. In fact, Justice Alito thinks that Boyer has already gamed the system through his delaying tactics and gotten a better deal out of the state as a result: “It is also quite clear that the delay caused by the defense likely worked in petitioner’s favor…[W]hat started out as a very strong case of first-degree murder ended up, after much delay, in a conviction for lesser offenses.”

Having successfully schemed his way to get out of the death penalty, Jonathan Boyer doesn’t deserve anything more from this court. What Alito pointedly ignores, however, is the fact that even if this is true in Boyer’s case, Boyer is not the only indigent inmate in Louisiana’s prisons who has seen a trial delay thanks to dithering (or “confusion”) on the part of the state.

Justice Sonia Sotomayor’s dissent against the improvident grant ruling points out as much. Writing for herself and Justices Breyer, Kagan and Ginsburg, Sotomayor doesn’t disagree with the jury finding that Boyer was guilty of second-degree murder, but she does think that the Court needs to take this opportunity to clarify the state’s speedy trial obligations, precisely because Boyer’s situation is not a unique or isolated one. Specifically, Sotomayor states that the lower court should have weighed the failure to fund against the state in Boyer’s speedy trial challenge:

Placing the consequences of such a delay squarely on the State’s shoulders is proper for the simple reason that an indigent defendant has no control over whether a State has set aside funds to pay his lawyer or fund any necessary investigation. The failure to fund an indigent’s defense is not as serious as a deliberate effort by a State to cause delay… But States routinely make tradeoffs in the allocation of limited resources, and it is reasonable that a State bear the consequences of these choices.

Justice Sotomayor warns that the Court may have avoided that constitutional issue today, but sooner or later, it will have to come up with an answer about the state’s accountability. In the meantime, indigent inmates in Louisiana continue to await trials from behind bars due to the state’s funding crisis, being treated as if they were guilty before proven innocent (or guilty)–a fact that Sotomayor backs up with empirical studies showing significant understaffing of Louisiana’s public defender services and average waits of 501 days between felony arrests and trials in some parishes. Jonathan Boyer’s case may have been particularly outrageous in just how long he had to wait for his, but, as Sotomayor writes, his case is indicative of “larger, systemic problems in Louisiana.” What Justice Alito and the majority forget is that the Sixth Amendment speedy trial guarantee applies to both the innocent and the guilty–and the longer the Court sits on its hands, the more likely it is that an innocent version of Jonathan Boyer will be needlessly imprisoned for years while awaiting acquittal.

As it turns out, Boyer v. Louisiana is a prime example of the right question coming before the Supreme Court but with the wrong facts and the wrong plaintiff. The Court surely would have been more hesitant to dismiss the case wholesale had the defendant been more sympathetic, the crime less horrible, the facts more ambiguous. The Boyer DIG also highlights the unique difficulty of Sixth Amendment speedy trial cases: because the Supreme Court said in 1973’s Strunk v. United States that the proper remedy for a speedy trial violation is an outright reversal of any conviction (or dismissal of indictment), courts are very hesitant to permit such a drastic measure unless they are convinced of the defendant’s innocence. This was undoubtedly a result that Justice Alito and the conservative majority did not want to see with Boyer, who they (and a non-unanimous jury) have decided deserves to spend life in prison without parole. Due to the zero-sum nature of speedy trial disputes, however, the Court’s dismissal today lets the state of Louisiana off scot-free for its failure to fix its admittedly broken indigent defense system.

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Supreme Court Opinion Alert: In Kirtsaeng v. Wiley, Supreme Court Chooses Consumers of Foreign-Made Products over Copyright Holders

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libraries

The American Library Association estimates that libraries in the United States contain over 200 million foreign-printed books. Picture via Wired.

Eliciting a huge sigh of relief from libraries, museums, used-car salesmen and wide swaths of eBay and Amazon, the Supreme Court held today that buyers of foreign-made works do not have to seek permission from the copyright holders to import the works into the United States. Under the 6-3 ruling in Kirtsaeng v. John Wiley & Sons, a copyright owner’s exclusive distribution rights to a product is extinguished once it is legally sold–even if the work in question was manufactured abroad and then brought overseas to be sold for a “gray market” profit.

Those who remember being broke students and working extra shifts at the university library, participating in mundane experiments for the Psychology department for a $5 bill, or balking at the price of required textbooks in the bookstore might appreciate the ingenuity of Supap Kirtsaeng. Kirtsaeng, a Thai student who had come to the United States in 1997 to study mathematics and subsequently obtained an undergraduate degree from Cornell and a Ph.D. from USC, had been looking for a way to make some cash while in the U.S. After he noticed that the textbooks he purchased in the United States were more expensive than identical Asian editions that he could buy back home, he asked friends and family to mail copies of the Asian editions to him for resale. Despite the fact that the foreign edition textbooks specifically carried a page stating that such books were not to be exported out of Europe, Asia and the Middle East, Kirtsaeng sold them in the United States, reimbursed his friends and family for the price of the books purchased in Thailand, and kept the difference.

Naturally, John Wiley, the publisher of the textbooks and the owner of Wiley & Sons Asia (the subsidiary that produced the Asian editions), did not appreciate Kirtsaeng’s moneymaking scheme and brought a copyright infringement suit once it caught wind of his business. To do this, however, they had to get around the “first sale” doctrine, an exception written into the Copyright Act which cuts off a manufacturer’s exclusive right to distribute a copyrighted work at the moment that it is originally sold. Once a lawful sale is made, the copyright holder no longer gets a say in where the product can go, and the buyer is free to do what he/she wants to do with it–whether the buyer’s purpose to gift it, put it in a library, donate it to a museum, or resell it to fellow students.

While there is no dispute that this purchaser-friendly first sale doctrine applies to domestically made works, Wiley successfully argued in lower courts that the language of the exception, as codified under Section 109(a) of the Copyright Act, only applies to works that are “lawfully made under this title.” In Wiley’s interpretation, the phrase “lawfully made under this title” limits the first sale exception to only works that are produced in territories subject to the Copyright Act (the United States), and not works that are made overseas, where the Copyright Act has no force. Under such a reading, then, Kirtsaeng needed Wiley’s permission to import the Asian textbooks into the United States and sell them there. Since he had not done so, the trial court found that he had infringed Wiley’s copyright and awarded Wiley damages of $75,000 per work, totaling $600,000 in all. The Second Circuit affirmed this ruling.

Today, however, the Supreme Court rejected that argument by a 6-3 vote, ruling that the “first sale” doctrine has no geographical limitation and does in fact apply to works manufactured abroad. Justice Stephen Breyer, writing for a majority that included Chief Justice Roberts and Justices Sotomayor, Alito, Kagan and Thomas, pointed out that Wiley’s interpretation of “lawfully made under this title” would affect many sections of the Copyright Act, leading to a parade of nonsensical and nearly-unenforceable horribles. For example, this reading would give copyright owners the power not only to control the resale but also the display of foreign-made works–the result being that tourists would not be able to attach to their cars bumper stickers bought on vacation, arcades would not be able to install video games manufactured overseas, and teachers would not be able to show their students documentaries made abroad without first obtaining permission from the copyright holder.

Breyer’s opinion snowballs on: havoc would be wreaked on museums and libraries across the country, which collectively host millions of foreign-made works. Technology companies that create products made of multiple copyrightable foreign-manufactured components would be affected. The used-car market–a good portion of which involves cars made abroad–and the $2.3 trillion imported goods market would be impacted. Looking to the text and the history of the Copyright Act and “considerations of simplicity and coherence,” Breyer concluded that Congress could not have intended such restrictive consequences. Thus, the first sale doctrine barred John Wiley from exercising distribution rights over the Asian-edition textbooks that were lawfully sold to Kirtsaeng’s family and friends.

Justice Ruth Bader Ginsburg’s dissent, which was joined by Justice Kennedy in full and Justice Scalia in part, argued that the Court’s ruling “shrinks to insignificance” copyright protections against gray market unauthorized imports and hurts the U.S.’ trade interests in the long run. Characterizing Breyer’s parade of horribles as “imaginary” and “absurd,” the dissent dismissed the majority’s fear of a flood of litigation against museums and libraries and used-car salesmen, pointing out that the Copyright Act already has other exemptions that would allow for the importation, without copyright holders’ permission, of products for certain governmental, academic, educational and personal uses.

From a practical standpoint, however, it isn’t difficult to see why Breyer, and not Ginsburg, was able to line up five Justices behind his position. In the end, there are just too many things in this country that would have been swept up under Wiley & Sons’ proposed rule, and the deep fear of an ensuing legal avalanche won the day for Supap Kirtsaeng. Few things are made in the USA anymore, and foreign trade is increasingly important to the national economy. Giving publishers and manufacturers such immense and potentially perpetual power over legally sold products would have up-ended, as Breyer said, “ordinary scholarly, artistic, commercial and consumer activity,” and it is too late for Wiley to go back and change the rules that everyone has been playing by for decades. Some genies, as it turns out, cannot be put back into their Made In China bottles.

Supreme Court to Hear Prop 8, DOMA case

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Photo by: J. Emilio Flores for the New York Times
Photo by: J. Emilio Flores for the New York Times

SCOTUSblog is reporting that the Supreme Court has granted certiorari to both Hollingsworth v. Perry, the California Proposition 8 case, and United States v. Windsor, a Defense of Marriage Act challenge. The Court will hear arguments in the two cases when it reconvenes in 2013.

Lyle Denniston has a preliminary breakdown of the order on SCOTUSblog’s live blog:

Prop. 8 is granted on the petition question — whether 14th Am. bars Calif. from defining marriage in traditional way. Plus an added question: Whether the backers of Prop.. 8 have standing in the case under Art. III.

[With regards to United States v. Windsor]: In addition to the petition question — whether Sec. 3 of DOMA violates equal protection under 5th Amendment, there are two other questions: does the fact that government agreed with the [Second Circuit] decision deprive the Court of jurisdiction to hear and decide the case, and whether BLAG (House GOP leaders) has Art. III standing in this case.

There is a good deal of complexity in the marriage orders, but the bottom line is this: the Court has offered to rule on Prop. 8 and on DOMA Section 3, but it also has given itself a way not to decide either case. That probably depends upon how eager the Justices are to get to the merits; if they are having trouble getting to 5 [justices] on the merits, they may just opt out through one of the procedural devices they have offered up as potentials.

More coverage of this development can be found here, here, here and here.