Tracking the latest developments in the fight for a fair America
By Nick Little
Legal Director, Center for Inquiry
Holt v. Hobbs is an odd case to come before the Supreme Court. It is a situation where each side has firmly dug its heels into the ground, and the kind of case that leaves non-lawyers shaking their heads about wasting taxpayer money. An Arkansas state prisoner, Adbul Maalik Muhammad (previously known as Gregory Holt) claims his religion requires him to eschew shaving, but is willing to compromise on a half-inch beard. The state of Arkansas, on the other hand, claims the prison system cannot function if prisoners are allowed to grow beards for religious reasons, but is willing to permit prisoners with skin conditions to grow quarter-inch beards. And so, on October 7th, this case made it all the way to the Supreme Court.
Such a case presents quite the dilemma for the Court. On the one hand, the Roberts Court has not been a friendly one to prisoner claims, with the conservative majority, for example, finding no need for reasonable suspicion to allow strip searches of prisoners. On the other, this court has been extremely solicitous of religious freedom cases. It ruled that a church school could designate its teachers as ministers, thus exempting them from employment discrimination laws, and the conservative majority famously ruled that corporations could claim religious exemptions to the requirement to provide health insurance for contraception. This case places those two trends in conflict.
At its core, this case is about way more than beards on prisoners. The central issue dominating oral arguments is the deference due to correctional staff regarding the necessary government interest. Muhammad sued under the Religious Land Use & Institutionalized Persons Act (RLUIPA). This law, along with the Religious Freedom Restoration Act (RFRA), sets a very high threshold for the government to meet in order to justify a “substantial burden” to a person’s exercise of religion. The government must show a compelling interest, and must advance it in the least restrictive manner possible. Judged by this standard, Arkansas’ case appears flimsy. It seems hard to justify how significant contraband can be concealed in a half-inch beard but not in a quarter-inch one. Or how a prisoner shaving off a half-inch beard can significantly change his appearance, thus posing a threat to prison security.
But Arkansas claims that courts must simply accept the word of the prison system as to what threatens security, the maintenance of which is clearly a compelling interest. Accepting this argument seems to dramatically undercut the intended protections of RLUIPA. If prison officials are to be believed, with no other evidence, that half-inch beards are a major threat to safety, and thus must be banned without exception, despite 40 other prison systems allowing them, what claim can succeed? The Court focused on this issue in questioning Arkansas’ attorney, with justices across the bench seemingly unconvinced that actual risks would follow allowing such a beard. Justice Breyer and Chief Justice Roberts noted that Arkansas had failed to show any actual harm anywhere in the country from such an exemption. Justice Alito questioned whether Arkansas’ policy was indeed the least restrictive means available, asking why the simple expedient of requiring an inmate to comb his beard would not suffice.
In questioning the Muhammad’s attorney, on the other hand, the Court showed concern that this case would not end litigation on this issue because prisoners will claim the right to grow longer beards. While Mohammad’s counsel noted that his client should not be penalized for being reasonable and offering to compromise on a half-inch beard, Justice Scalia suggested that the Court never should have taken the case, but instead should have waited for a case with a request to grow a full beard. The Court’s worry that it would be unable to craft an overall rule did not, however, appear to translate to an acceptance of Arkansas’ claim, described by Muhammad’s attorney as “absolute deference to anything they say just because they say it.”
As far as the tea leaves of oral argument can be read, the Court appeared overall sympathetic to the plaintiff and his request for a religious accommodation. The liberal wing, comprised of Justices Ginsburg, Sotomayor, Kagan and Breyer, was unconvinced that Arkansas had made the necessary showing of harm to override Muhammad’s religious convictions. These concerns were also shared by the more conservative justices, including Justice Alito, who challenged why the prison system could not accommodate this request by simple adjustments. Justice Scalia could not resist making clear he didn’t think RLUIPA was a good law (unsurprisingly, as it and RFRA were enacted by Congress to directly reverse his decision in Employment Division v. Smith). He noted that the text of the statute required a compelling government interest, so there would be no question of a reasonableness test to balance the interests of the prisoner and the prison system. What is certain, however, is that even if this prisoner is granted his exemption, this is not the last RLUIPA claim that will make it to the Court, and quite possibly not even the last beard case.
By Meghan Jones & Christopher Brook,
ACLU of North Carolina
Can a police officer’s mistaken interpretation of the law justify a traffic stop? On Monday, October 6, 2014, the United States Supreme Court will hear oral argument on that question in the case of Heien v. North Carolina.
In 2009, Nicholas Heien was the passenger in a vehicle that had only one operating brake light. An officer pulled the car over, wrongly believing the vehicle was in violation of the law. North Carolina plainly requires only one rear brake light, as the North Carolina Court of Appeals recognized in 2011. That conclusion was so obvious that attorneys for the State did not dispute it before the North Carolina Supreme Court.
The fact that the State, defense, and both North Carolina appellate courts agreed Mr. Heien had not violated the law should have made for a straightforward legal inquiry. The Fourth Amendment to the U.S. Constitution forbids unreasonable searches and seizures. The United States Supreme Court has interpreted this provision to require an officer to have objectively reasonable suspicion that a law is being broken in order to conduct a traffic stop.
Yet, in spite of the fact that Mr. Heien’s vehicle was not breaking a single law, the North Carolina Supreme Court upheld the constitutionality of the traffic stop. The court concluded the officer’s mistake of law was “reasonable” and that to rule otherwise would hold officers to an unattainable standard of “omniscien[ce].” Read more
By Trevor Boeckmann
AFJ Dorot Fellow
At 8:00 a.m. this morning, Ohio residents were supposed to be able to go to the polls to begin early voting for November’s general election. Ohio’s policies had been a voting success story of the past decade. In 2004, long lines that stretched into the early morning led to as many as 130,000 voters being turned away from or leaving the polls. The Ohio legislature, responded with reforms designed to expand voting times, days, and registration opportunities. By 2008, 1.7 million Ohioans—nearly 30 percent of the state’s voters—were casting their ballots before Election Day.
But yesterday, by a 5-4 vote, the Supreme Court shut down today’s early voting.
Large early voting turnout in Ohio meant more low-income and minority voters, most of whom were voting for Democratic candidates. Ohio Republicans began to question the earlier reforms. In 2014, the Ohio legislature enacted a new set of voter suppression laws designed to cut back on early voting and voter registration opportunities. Earlier this month, both a federal district court judge and a three-judge panel of the Sixth Circuit Court of Appeals enjoined the law to prevent it from being enforced this year. The state’s attorney general filed a last-minute appeal to the Supreme Court. Late yesterday afternoon, the appeal was granted by the Court’s conservative wing: Justices Roberts, Scalia, Kennedy, Thomas, and Alito. There will be no early voting in Ohio today.
The changes Ohio is implementing have one purpose and one purpose only: to make it harder for minorities and poor people to vote. The Sixth Circuit saw through this sham. Unfortunately, the Supreme Court majority has chosen to weigh in on the side of voter suppression.”
The most incredible part of both the state’s appeal and the Court’s ruling is the fact that early voting imposed no burden on the state. State officials had already set up the voting locations, provided staff, and promoted the opportunity across the state. The Court’s ruling will not save Ohio taxpayers a dime; it will only confuse voters.
The Ohio case is just the first of a spate of new challenges to restrictive voting laws set to go into place for November’s election. In Wisconsin, a three-judge panel of the Seventh Circuit Court of Appeals upheld a strict new voter identification law. Today, 300,000 Wisconsinites lack the photo IDs they will need to vote on Election Day. More than 12,000 absentee ballots already have been mailed without instructions telling voters they will now need to send a photocopy of their photo ID in order to have their votes counted. Last week, by a 5-5 vote, the entire 10-member Seventh Circuit court declined to review the decision.
In North Carolina, a decision is pending in the Fourth Circuit Court of Appeals over an expansive new law that would:
● Reduce early voting, eliminate same-day voter registration;
●Institute new photo ID requirements;
●Discard the ballots of voters who accidentally show up at the wrong precinct;
●Eliminate the ability of election boards to extend poll hours during “extraordinary circumstances” such as long lines;
●End voter registration for 16 and 17 year olds.
Election law scholar Rick Hasen called the law “the most sweeping anti-voter law in at least decades.”
Kansas and Arizona are trying to enact new voter ID laws that require proof of citizenship. A decision on their legality is currently pending before the Tenth Circuit Court of Appeals. In Texas, a trial ended last week in a federal district court case over another voter ID law.
The stakes in these cases could not be higher. Since the Supreme Court invalidated section 5 of the Voting Rights Act last year in Shelby County v. Holder, states freed from that law’s “preclearance” requirements have aggressively imposed new restrictions designed to suppress voter turnout, particularly in poor and minority communities. And this is just the beginning. With the 2016 presidential election looming, these cases will set the baselines for new restrictive voting laws that could be proposed across the country. It is imperative that the courts—and Congress—act to protect the most important right in our democracy. It is a shame the Supreme Court decided not to do so in Ohio yesterday.
On Tuesday, the Senate Judiciary Committee held a confirmation hearing for three district court nominees from Texas, clearing an important hurdle on the path toward resolving the judicial vacancy crisis in that state.
In June, President Obama nominated Robert “Trey” Schroeder and U.S. Magistrate Judge Amos Mazzant to the Eastern District, and U.S. Attorney Robert Pitman to the Western District, based on the recommendations of Texas Senators John Cornyn and Ted Cruz. On Tuesday, Cornyn and Cruz, both members of the Judiciary Committee, attended the hearing and affirmed their support for the three nominees. Cruz lauded the nominees’ “impressive professional credentials and long careers demonstrating the fidelity to law that we expect from our federal judges.” Both Senators also praised the bipartisan Federal Judicial Evaluation Committee, made up of lawyers and judges throughout Texas, that initially screened candidates and named finalists for the Senators to review.
The people of Texas need all three nominees confirmed swiftly—each will fill a seat the Administrative Office of the U.S. Courts has designated a “judicial emergency,” a designation for courts that simply do not have enough judges to handle their existing caseloads. In particular, Robert Pitman would fill a seat in the Western District that has been vacant for nearly six years and is now the second-oldest vacancy in the entire federal judiciary. Pitman’s nomination also has historical significance for the diversity of our courts: Cruz and Cornyn are the first pair of Republican Senators to recommend an openly gay judicial nominee. Once confirmed, Pitman will be the first openly gay federal judge to serve in Texas.
Tuesday’s hearing marks progress for the federal courts in Texas, but there remains much work to be done. There are still eight current vacancies in Texas that do not yet have a nominee, including two on the Fifth Circuit Court of Appeals. Five of these vacancies are “judicial emergencies.” Those five represent 42 percent of the entire nation’s judicial emergencies without a nominee. In addition, four more Texas district court judges have announced their intention to retire or take senior status, and their seats will become vacant early next year. As this list of Texas vacancies grows longer, and longstanding vacancies remain unfilled, everyday Texans find it harder to gain access to the courts and the administration of justice suffers.
By Kyle C. Barry
AFJ Legislative Counsel
UPDATE, August 21, 2014: Prof. Steven Valdeck, who first raised concerns about Judge Bates’ letter, discussed below, has an update. He notes that Ninth Circuit Chief Judge Alex Kozinski—a member of the Judicial Conference, the federal judiciary’s policy-making body—has written to Senate Judiciary Committee Chairman Patrick Leahy, informing him that he has “serious doubts about the views expressed by Judge Bates,” and “[i]nsofar as Judge Bates’s August 5th letter may be understood as reflecting my views, I advise the Committee that this is not so.”
The ongoing effort to reform the secret court that approves government surveillance requests took a surprising turn when a former judge on the court wrote a letter opposing reform legislation. In that letter, Judge John D. Bates claimed to speak for the federal judiciary.
He does not.
At issue is the special court created by the Foreign Intelligence Surveillance Act. It’s commonly known as the FISA Court or the FISC. The court approves electronic surveillance applications made by the executive branch—such as those revealed by National Security Agency whistleblower Edward Snowden. Under current law, only the government is represented before the FISC, and there is no lawyer to advocate for those whose privacy rights are at risk. Unsurprisingly, the government has a better than a 99% success rate before the FISC.
To address these and other problems with the government’s surveillance authorities, Senator Patrick Leahy, D-Vt., recently introduced an updated version of the USA FREEDOM Act. His Senate bill unquestionably goes further to protect civil liberties and individual privacy than the House version of the same name passed in May.
The Senate bill would ensure an adversarial process in the FISC through a “special advocate” who “shall advocate, as appropriate, in support of legal interpretations that advance individual privacy and civil liberties.” Conversely, the House bill would leave in place the ex parte nature of FISC proceedings; it calls only for a panel of amicus curiae who would assist the court in certain cases, but would represent no one and would have no duty to oppose the government’s arguments. What’s more, the Senate bill would require the FISC to certify certain questions for appeal, thus allowing appeals not just on behalf of the government—which, as the only party that currently appears before the FISC, has always been able to appeal on the rare occasion it loses—but also on behalf of surveillance targets and “the interests of justice” generally.
The Senate bill is the product of lengthy negotiations between key Senators, the White House, intelligence gathering agencies, and others—a hard-fought compromise among many interested parties and a serious attempt to enact meaningful reform. But not everyone is on board. In a letter to the Chairmen and ranking members of the Senate Judiciary and Intelligence Committees, Judge Bates—a former FISC judge and director of the U.S. Court’s Administrative Office—wrote to oppose the more robust FISC reforms and to argue in favor of the weaker House-passed legislation.
Judge Bates’s letter is troubling not simply because he opposes basic reform to enhance the fairness of FISC proceedings, but because he purports to do so, in his words, “on behalf of the Judiciary.”
In a response published last week, law professor Steve Vladeck identified two fundamental problems with Judge Bates’s approach. First, Judge Bates provides no justification for his asserted authority to speak on behalf of the entire judiciary:
Yes, he is the Director of the Administrative Office of the U.S. Courts (AO)–and, in that capacity, serves as Secretary to the Judicial Conference of the United States. But under federal law, it is the latter body–the Judicial Conference–and not the AO that is the official policy voice of the federal judiciary, and for good reason. Federal law not only outlines who serves on the Judicial Conference, but it also provides procedural and substantive rules to guide that body in how it conducts business, with an eye toward ensuring that it only speaks on pending policy issues of appropriate concern to federal judges.
Given the absence of clear authority inherent in his position as AO director, Vladeck writes, “Judge Bates should at least be far clearer about exactly on whose behalf he is writing . . . and by what process he obtained their consent.”
Second, as Vladeck points out, “we know better.” That is, we already know that not all federal judges—indeed, not even all former FISC judges—believe that FISC reform should be limited to the modest House proposals. For example, Judge James Carr, who served on the FISC from 2002 to 2008, has publicly endorsed the use of a special advocate—noting that an amicus who participates solely for the court’s benefit “will not achieve true reform”—and has argued that “adversarial appellate review is crucial to increased confidence in the FISC and its work.”
With other FISC judges publicly supporting reform, Judge Bates’s letter will, at best, sow confusion among Senators left wondering as to the scope of his opinions.
This is not the first time that Judge Bates has responded to proposed surveillance reforms, though it is the first time he has claimed, without qualification, to speak for the entire judiciary. And he is doing so to oppose reform that even the executive branch—that is, the entity that depends on the FISC to grant surveillance applications—has agreed to. Thus, in Vladeck’s view, “the real takeaway from [Judge Bates’s] letters is the extent to which they reinforce the charge that the judges staffing the FISC, by themselves, provide an insufficiently independent check on government surveillance programs–which is the entire reason why these reforms have been pursued (and are so essential) in the first place.”
Alliance for Justice agrees, and urges both the Senate and the House to quickly pass the FISC reforms in Senator Leahy’s version of USA FREEDOM.