This morning the Supreme Court will hear a case about playground surfaces that could pave the way for public funding of religious schools. Trinity Lutheran Church of Columbia, Inc. v. Comer asks whether Missouri’s Department of Natural Resources must allow religious entities to participate in a state program providing grants for resurfacing playgrounds with tire scraps. The State denied Trinity Lutheran’s grant application, citing a provision in the Missouri Constitution providing that public funds cannot be used “in aid of any church, section or denomination of religion.”
On January 21, 2017, over four million people marched in more than 600 U.S. cities and over 80 countries across the world to express growing alarm over the persistent inequality and increased hostility faced by women. The Women’s March, in some ways, was a direct response to the election of Donald Trump, a man who has bragged about sexually assaulting women and has made so many degrading comments about women that it is impossible to include them all here. At a time when it is critical for all Americans to stand up for women’s rights, President Trump has nominated a man to the Supreme Court, Neil Gorsuch, who has a long history of expressing contempt and hostility toward women.
As a young man studying at Columbia University, Gorsuch was a member of the fraternity on campus known for its degrading treatment of women. Among other things, the fraternity celebrated each time one of its members had sex with a virgin by painting a fire hydrant on frat row. Students on campus targeted the fraternity during a Take Back the Night march because of its reputation as the “date-rape fraternity.” Gorsuch was an ardent supporter of both his fraternity and fraternity culture on campus. He dismissed women who spoke out against the fraternity’s violent misogyny, saying that their “demonstrations and rallies are causes that inspire no one and offer no fresh ideas or important notions for the students or school to consider.” Read more
Here’s a riddle: What do a death-row prisoner and a John Steinbeck novel have to do with one another? Answer: Nothing, unless the death-row prisoner is in Texas and has intellectual disability. Under Texas law, a defendant’s life may hinge on how closely his intellectual disability resembles that of the hulking, obviously disabled, farmhand Lennie Small from Steinbeck’s Of Mice and Men. That’s because only in Texas will you find the “Lennie standard,” the set of criteria the state uses to determine that an individual has intellectual disability and is therefore exempt from facing the death penalty.
Whether Texas can execute Bobby Moore, based on the “Lennie standard,” is a question the U.S. Supreme Court will address in arguments it will hear on November 29. Read more
The Supreme Court stands at a crossroads. As the court prepares to hear its first cases of the 2016-2017 term next week, Senate Republicans’ unprecedented six-month blockade of Chief Judge Merrick Garland’s nomination has resulted in a state of dysfunction at our nation’s highest court. This upcoming term demonstrates both the incredible importance of the Court and how it has been dangerously hobbled by the lack of a ninth justice.
Last term, the shorthanded Supreme Court failed to decide a host of critical issues, sometimes punting the issue back to lower courts. The Court presumably deadlocked in Friedrichs v. California Teachers Association, which examined whether union dues were a form of compelled speech. Read more
Around this time last year, Supreme Court commentators were heralding what appeared to be the beginnings of a new liberal era on the Court. Among the supposed signs were decisions that saved the Affordable Care Act (once again) from a manufactured Republican challenge, and another that legalized same-sex marriage across the country. In response, we helped to curate an entire issue of The Nation magazine refuting that generalization.
Flash forward to this past week and reading the headlines was déjà vu. “[F]or the second year in a row,” David Savage of the L.A. Times proclaimed, “the court tilted to the left in its major decisions.” At The New York Times, a graphic displayed several conservative justices—including Justice Alito!—drifting to the ideological left. Another Times article observed that, “for the second term in a row,” the Roberts Court “delivered liberal decisions at a rate not seen since the famously liberal court led by Chief Justice Earl Warren.” Read more
This Sunday, June 26, marks the one-year anniversary of the Supreme Court’s landmark decision in Obergefell v. Hodges, vindicating the constitutional right of gay couples to marry. Like so many other important decisions in recent years, the outcome was 5-4 with Justice Kennedy providing the crucial fifth vote. The ruling legalized same-sex marriage in every state and territory of the United States.
But what if Obergefell had been set for the Court’s current term instead? The scenario is not hard to imagine. After all, the case was among the last group of cases to be granted cert for the Court’s 2014 calendar, barely making the cut for oral argument in the last week of the Court’s April sitting. Any further delay and the case would have surely been put off until the current term.
And so Obergefell and gay and lesbian Americans could have been subject to the same fate that many others have faced this term: indecision and delay. With the vacancy created by Justice Scalia’s death in February and the Senate’s refusal to fill the vacancy, the Court has been short-handed with only eight members and unable to resolve a number of important cases. So far, the Court has split 4-4 in four different cases, including a workers’ rights case (Friedrichs v. CTA) and an immigration case (United States v. Texas). Further, the Court has also punted to the lower courts on cases regarding the Affordable Care Act’s contraceptive mandate (Zubik v. Burwell) and the ability of consumers to vindicate their rights guaranteed under consumer protection laws (Spokeo v. Robins). The Court’s indecision in these cases has left millions of Americans in a state of uncertainty as to their rights and protections under the law. Read more
The highest court in the land is playing one man down and every American woman should be calling a foul.
As we’ve already seen several times this term, a closely-divided eight-member Supreme Court means the possibility of 4-4 deadlocks and the inability to resolve legal questions of immense national importance. A Court unable to do its job has profound implications for a variety of vital issues, particularly those, like abortion, that are politically contentious and over which lower courts around the country often disagree.
The Supreme Court has been central to defining the scope of reproductive rights since 1973, when it first established a woman’s constitutional right to abortion. And continued backlash against that decision ensures that the federal courts will face more crucial questions on reproductive justice in years to come. With Roe the law of the land, anti-choice state legislatures are getting increasingly creative in their attempts to restrict and diminish the right to abortion. As anti-choice laws in various forms gain political traction, it will be up to the courts—and ultimately, the Supreme Court—to ensure that women’s constitutional rights are protected. Read more
There’s no denying that the current Supreme Court is closely divided on some of the most important legal questions it faces. Before Justice Scalia’s death in February, that division manifested itself in 5-4 decisions, usually with the four liberal justices (Ginsburg, Breyer, Sotomayor, and Kagan) dissenting from the conservative justices’ (Roberts, Scalia, Kennedy, Thomas, and Alito) position in cases dealing with issues such as class actions, voting rights, and the death penalty.
Now with Justice Scalia absent and Senate Republicans refusing to replace him, the Court is left in a perilous state of dysfunction. Without a fifth vote to break a tie on contentious issues, the justices can end up deadlocked and unable to answer legal questions that are dividing courts across the country. That usually means issuing a passive per curiam opinion “by an equally divided Court” that simply affirms the lower court and resolves nothing. Read more
There’s always been an air of desperation around right-wing attempts to smear Judge Merrick Garland’s judicial record. Unable to find actual evidence that Judge Garland is anything but a fair-minded jurist who upholds the rule of law, his critics have resorted to either gross mischaracterizations of his decisions, or attacks manufactured out of thin air—making assumptions about his views based on the bare fact that President Obama nominated him rather than actual cases (and he has 19 years’ worth to choose from).
But things went from desperate to absurd when the National Federation of Independent Business (NFIB), a front group for the Kochs and other corporate interests, went after Judge Garland over a case in which Judge Garland and Justice Scalia (along with every member of the Supreme Court at the time, including Chief Justice Rehnquist and Justice Thomas) came out precisely the same way.
After more than a year of campaigning and action by undocumented immigrants and other affected people, President Obama announced a series of executive actions on immigration on November 20, 2014. The two main pieces of these actions included (1) provisions to expand the population eligible for the Deferred Action for Childhood Arrivals (DACA) program to people of any current age who entered the country before the age of 16, and (2) a new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program that would allow parents of U.S. citizens and lawful permanent residents to request deferred action and employment authorization.
For the second time in a row, the immigrant community successfully advocated for executive action to protect immigrants. For many members of United We Dream, this victory was reminiscent of the first announcement of DACA in 2012 that finally gave undocumented youth some relief from deportation and for work authorization. To date, more than 700,000 undocumented young people have been able to benefit from DACA, and the changes to people’s lives have been enormous. Although many people still did not fall within these initial executive actions, we saw this moment as another stepping stone to justice that our communities had been denied. Read more
You often hear the refrain “elections have consequences” and that who you vote for matters. Debates, then, serve the important role of highlighting candidates’ positions so that the electorate can make an informed decision come Election Day.
So far this presidential election season, debate moderators have asked both Democratic and GOP candidates plenty of questions about how they would wield executive power and work with Congress to achieve their policy agenda. But there’s one branch of government that has been notably missing from all of the debate moderators’ questions: the Supreme Court. Read more
If there was any doubt that the federal bench is in dire need of judges who understand diversity and racial struggles, and who do not adhere to conservative views grounded in white privilege rather than reality, yesterday’s oral argument in Fisher v. University of Texas at Austin at the Supreme Court clearly underscored that need.
In one exchange, Justice Antonin Scalia echoed the paternalistic arguments that supported Jim Crow laws, school segregation, and even slavery, when he suggested that African Americans might be better off at “lesser schools”: Read more
Passed in the wake of Dr. King’s assassination, the Fair Housing Act was the last of the momentous civil rights laws of the 1960s. Dr. King had warned against the harms of housing segregation, caused in large part by government-sponsored policies like redlining and racially-exclusive zoning. Senator Edward Brooke, R-Mass., who died recently and was the first popularly elected African-American Senator, was an original co-sponsor of the Act, along with Senator Walter Mondale, D-Minn. Senator Brooke stated that “residential segregation [had] become central” to the country’s “major domestic problems.”
The original Fair Housing Act banned discrimination on the basis of race, color, national origin and religion. Amendments signed into law by Presidents Ford and Reagan added protections against discrimination based on gender, disability and familial status.
The case before the Court is Texas Department of Housing and Community Affairs v. Inclusive Communities Project. A Dallas civil rights organization challenged the State of Texas policy of placing low-income housing only in African-American neighborhoods, thereby reinforcing racial segregation, instead of fairly distributing such housing across all communities.
The lawsuit raises a “disparate impact” claim under the Fair Housing Act. Essentially, this standard prohibits policies that appear neutral but unfairly exclude classes of persons in practice. It allows us to recognize and prevent harmful and inequitable policies so that everyone is treated fairly. The standard has been used to root out discriminatory policies not only in housing, but in employment, education, voting and environmental justice. As our Supreme Court amicus brief notes, “housing segregation imposes a wide array of socioeconomic harms that can only be fully eliminated through a framework that includes a disparate impact standard.”
In this case, U.S. District Judge Sidney Fitzwater found a violation of the Fair Housing Act based on the Texas policy’s disparate impact on African Americans. The U.S. Court of Appeals for the Fifth Circuit agreed that a violation could be shown by proving disparate impact but remanded the case to apply standards adopted by the U.S. Department of Housing and Urban Development, noting that “[t]hese standards are in accordance with disparate impact principles and precedent.”
Unfortunately, Texas chose not to defend its policy on the merits, but instead asked the Supreme Court to rule that the disparate impact standard cannot be used in claims under the Fair Housing Act. Texas’s petition asked the Court to decide two questions: 1) are disparate impact claims cognizable (meaning, available for use) under the Fair Housing Act; and 2) if disparate impact claims are cognizable under the Fair Housing Act, what are the standards and burdens of proof that should apply.
The Court agreed to consider only the first question. This was an aggressive move because, since the early 1970s, the Fair Housing Act has been interpreted to allow disparate impact claims. Courts have recognized that some forms of discrimination are covert and difficult to detect, but are just as harmful as intentional discrimination. The Fifth Circuit was among the first to do so. In 1973, it ruled that “it is not necessary to show that [defendant] intended to deprive [plaintiffs] of rights granted by the Act. A violation occurred because [the] words had that effect.” United States v. Pelzer Realty Co. In 1978, it held that “a significant discriminatory effect flowing from rental decisions is sufficient to demonstrate a violation of the Fair Housing Act.” United States v. Mitchell.
This method of proving discrimination is firmly embedded into our civil rights jurisprudence. It has enabled communities of color to challenge entrenched residential segregation patterns that would be impossible to eliminate on a house-by-house basis. Families with children have sued over apartment occupancy standards which limit the number of persons per bedroom. Victims of domestic violence have challenged public housing policies which evict them for violent incidents; no woman should have to choose between personal safety and a home for her family.
Unlike the split in authority among circuit courts leading to the Supreme Court’s review of same-sex marriage bans, there is no disagreement among courts about using disparate impact in fair housing law. Since the Nixon Administration first invoked this standard in fair housing cases, eleven circuit courts to consider the question have unanimously affirmed its use under the Fair Housing Act.
The recent tragedies in Ferguson and Staten Island have reignited a long overdue national discussion about racial inequality. Despite our best efforts, we are a long way from achieving the racial justice envisioned by Dr. King. Now is precisely the wrong time for the Supreme Court to eliminate longstanding protections for challenging systemic racial and other forms of discrimination in housing. The very fabric of our neighborhoods and communities across the country hangs in the balance.
In order to give borrowers the opportunity to carefully consider the terms of a mortgage, TILA allows borrowers to rescind, or cancel, a mortgage contract for any reason within three days of signing it. It also gives them three years to rescind if the lender fails to provide any of the required disclosures at the closing table.
The statute is very clear about how a borrower exercises that right to rescind: “by notifying the creditor. . .of his intention to do so.” Nonetheless, in recent years, lenders have argued that the statute actually requires that a borrower file a court action in order to rescind the contract. And they’d had some success with that argument, including in the federal appellate court that held Larry and Cheryle Jesinoski’s letter to Countrywide within the three-year period to be insufficient to rescind their mortgage.
This week’s decision squarely rejected that argument. Justice Antonin Scalia wrote that the statutory language “leaves no doubt” that a borrower need merely notify the lender to effect a rescission. And that’s good news for homeowners, or anyone who might like to become a homeowner, because the threat of rescission is supposed to make lenders very, very careful about providing borrowers with all the information about their mortgages at the time of closing. Requiring a borrower to file suit in order to exercise rescission would have significantly reduced the weight of that threat.
The foreclosure crisis has made abundantly clear that brokers and lenders are not always upfront with borrowers during the mortgage process, as TILA requires. During the subprime boom, lenders unscrupulously targeted communities of color for predatory loans, many with teaser rates and other features that hid the ultimate cost of the mortgage from the borrower. As the ACLU and other civil rights and consumer groups argued in our amicus brief in this case, broad access to TILA’s rescission remedy can provide crucial protection for individuals and communities harmed by foreclosure.
And, in recent years, the effects of foreclosure have been truly devastating, particularly for communities of color. More than five million homes have been lost to foreclosure since the real estate bubble burst, and these foreclosures have spillover effects on neighbors and neighborhoods: As of 2012, homeowners living within a city block of a foreclosure lost about $2.2 trillion dollars in property value attributable to those foreclosures, and more than one-half of that amount was concentrated in communities of color. A single foreclosure has been estimated to cost a city government $20,000.
It’s gratifying to see the Supreme Court reject the banking industry’s attempts to weaken protections for mortgage borrowers that are clearly codified in law. And there could be more. Next week, the Supreme Court will hear Inclusive Communities Project v. Texas Department of Housing and Community Affairs, the culmination of the banking industry’s attempt to weaken the Fair Housing Act by eviscerating the disparate impact standard. That standard has been crucial (and effective) in holding lenders accountable for discriminatory lending during the subprime boom and so, as with TILA rescission rights, the industry wants to see it gone. But, as in the TILA case, there is straightforward statutory and regulatory language that makes clear that the current state of the law is correct. Let’s hope, for all the sake of our communities, that the Court reaches the same conclusion.
Rachel Goodman is a Staff Attorney at the Racial Justice Program of the American Civil Liberties Union.
By Trevor Boeckmann
AFJ Dorot Fellow
It’s no surprise to see the majority on the United States Supreme Court siding against consumers, employees, and everyday
Americans. In the past, we’ve told you about the Court upholding forced arbitration clauses that keep those harmed by big businesses out of court, preventing women from banding together to stop employment discrimination, and allowing employers to impose their religious views on employees.
At some point, one would think the majority would start to feel bad about how their actions affect us. Apparently not.
This week, the Court heard oral arguments in a case involving health insurance for retirees. M&G Polymers USA, LLC v. Tackett involves a chemical company in West Virginia that had a series of collective bargaining agreements with its employees’ union. At issue was a clause in the agreement that said retired employees “will receive a full company contribution towards the cost of [health] benefits.” The union argued the benefits were guaranteed for life. The company argued it could take away these benefits whenever it chose—which it did in 2007.
As Professors Susan Cancelosi and Charlotte Garden wrote in a previous post: “The equitable case for retirees is compelling: they devoted their working lives to their employer with the expectation that they would then have health insurance to see them through their retirement.” Compelling, unless you’re Justice Antonin Scalia.
During oral argument, Justice Scalia mused:
You know, the nice thing about a contract case of this sort is you can’t feel bad about it. Whoever loses deserves to lose. I mean, this thing [the duration of the health benefits] is obviously an important feature. Both sides knew it was left unaddressed, so, you know, whoever loses deserves to lose for casting this upon us when it could have been said very clearly in the contract. Such an important feature. So I hope we’ll get it right, but, you know, I can’t feel bad about it.
Justice Stephen Breyer was quick to disagree:
Well, you know, the workers who discover they’ve been retired for five years and don’t have any health benefits might feel a little bad about it.
Listen to the comments of Justice Scalia and Justice Breyer:
This is nothing new for Justice Scalia. Last year, he referred to the Voting Rights Acts as a “perpetuation of racial entitlement.”
And if the majority sides with the chemical company, that won’t be anything new either.
By Kasey Burton
Extern, National Employment Lawyers Association
On October 8, I attended the oral argument at the U.S. Supreme Court in the case of Integrity Staffing Solutions, Inc. v. Busk. The issue before the Court is whether employees should be paid for time they spend, after their shifts are over, waiting to complete a mandatory security screening used to see if the employees are trying to steal anything. Workers at Amazon.com warehouses, employed by Integrity Staffing, are required to undergo a mandatory search of their body and belongings before being permitted to leave the facility. The search, which is similar to that conducted at airports, requires employees to empty their pockets, have their bags searched, and walk through a metal detector. Long lines often form at the screening stations, requiring workers to wait up to 25 minutes before they can leave the premises.
Although this case will address the specific issue of whether warehouse employees must be compensated for anti-theft inspection of their person and belongings and the waiting time involved, the impact of the Court’s decision will likely be far broader. As counsel for the workers Mark R. Thierman said, this is about Integrity Staffing’s attempt to push the line of compensation to encompass less and less. (The workers are also represented by Professor Eric Schnapper, University of Washington School of Law.)
Counsel for Integrity Staffing Paul D. Clement characterized the wait time as simply a “logical part of the egress process” that did not merit compensation. He argued that the Portal-to-Portal Act of 1947, which amended the Fair Labor Standards Act, requires the screening to be an “integral and indispensable” component of the workers’ “principal activities” in order to mandate compensation under the law. Clement repeatedly asserted that the screenings were in no way “integral and indispensable” to the work the employees performed. He compared the screening to checking out at the end of the workday—an activity for which employees are not compensated.
Curtis E. Gannon, Assistant to the Solicitor General, arguing for the government, agreed. He urged the Court to find that the screening failed to rise to the level of compensable activity. When pressed by Justice Ruth Bader Ginsburg for an example of how invasive a security screening had to be before it could be compensable, Gannon stumbled, eventually capitulated, and stated that he could not provide a specific example of when a screening would cross the line into compensable territory.
Thierman reframed the discussion, distilling the Court’s inquiry to two questions: Is it work? If it is work, is it a “principal activity” requiring compensation? Although Justice Samuel Alito chastised Thierman for failing to argue whether the screenings were “integral and indispensable” to the employees’ work of packing and shipping merchandise, Thierman persevered, picking up steam as he continued. He focused his argument on the practical realities of the security screenings, arguing that they went far beyond a basic check-out process. He explained that had the employees been required to remain at their workstations for screeners to inspect them, the time would certainly be compensable. The warehouse workers, he explained, are “engaged to wait.” Because they are required to wait for up to 25 minutes each workday to be screened, he argued, they must be compensated for their time.
The Justices, based on their questions and comments, appeared to be split along predictable lines, with Justice Anthony Kennedy’s vote hanging in the balance. The conservative justices appeared concerned with the abstractions of the law, while the liberal justices aimed to reconcile the law with the practical realities of the retail workplace in the 21st Century. Justice Elena Kagan focused her questioning on the anti-theft nature of the screenings, categorizing the screening procedure as inventory control. Justice Ruth Bader Ginsburg asked about what appeared to be the intentional shortage of screening staff that, as she noted, shifted the cost of conducting the screenings onto the employees who were forced to wait. Justices John Roberts and Antonin Scalia both insisted that a “principal activity” could not include going through a security screening, because a “principal activity” must be an important, central function of the job.
Justice Kagan asked one of the more interesting questions, positing a hypothetical based on real life. She said that there was a judge years ago in New York who required his law clerks to arrive early every workday to cut up his grapefruit and make his breakfast. She wondered whether the government thought that was compensable time. Gannon had to concede that it was.
Kasey Burton is a third year law student at the University of Washington School of Law, in Seattle. She is externing at the National Employment Lawyers Association, an AFJ member organization, which filed an amicus brief in this case.
By S. Douglas Bunch
Associate, Cohen Milstein
On June 23, 2014, the U.S. Supreme Court issued its decision in Halliburton Co. v. Erica P. John Fund, Inc. (“Halliburton II”). In rejecting Halliburton’s attempt to radically restrict the rights of investors, the Supreme Court affirmed the principles it announced over a quarter century ago in Basic v. Levinson, a decision that ensures investors have the opportunity to prove their claims—and those of other investors—in a class action.
Halliburton II had generated much anticipation and commentary due to its potential to threaten the continued viability of the fraud-on-the-market presumption of reliance recognized by the Court in Basic v. Levinson, 485 U.S. 224 (1988). Under the fraud-on-the-market presumption, publicly available information is assumed to be reflected in the market price of a stock, and, in turn, investors can be presumed to have relied on the information because their purchasing and sales decisions account for the price of the security. This eases the burden on investors, who need not show reliance on a defendant’s misrepresentations when bringing suits for securities fraud.
The presumption is crucial in class actions. Justice Thomas, joined by Justices Scalia and Alito, wrote an acrimonious concurrence to the Court’s opinion, in which he argued that Basic should have been overruled because “[l]ogic, economic realities, and our subsequent jurisprudence have undermined the foundations of the Basic presumption, and stare decisis cannot prop up the façade that remains.” Had Justice Thomas’s viewpoint prevailed, it might have meant the end of securities fraud class actions altogether, because without the Basic presumption, each individual investor in the class would have needed to demonstrate that he or she directly relied on the alleged misstatements when deciding to purchase or sell stock, making class certification in securities fraud cases nearly impossible.
However, in an important victory for investors, the Supreme Court in Halliburton II declined to overrule Basic and instead reaffirmed the principles underlying that decision. The Court rejected the arguments advanced by Halliburton that the fraud-on-the-market presumption is inconsistent with congressional intent, that the presumption is no longer justified by economic theory, and that the presumption is undermined by the notion that some investors do not rely on the integrity of the stock’s market price.
The Court also squarely rejected Halliburton’s policy arguments contending that Basic should have been overturned because of the supposed “harmful consequences” of securities class actions. The Court properly noted that the forum for addressing such concerns is Congress, not the courts. This portion of the Court’s ruling will hopefully put an end to the repeated and baseless anti-investor policy arguments raised by defendants during litigation in an attempt to curtail investor rights.
The Court did adopt one of Halliburton’s proposed alternatives to overruling Basic: defendants will now be allowed to attempt to rebut the presumption of reliance at the class certification stage by trying to present evidence that the misrepresentations did not affect the stock price. Defendants were already permitted to introduce such “price impact” evidence at the class certification stage to rebut a plaintiff’s showing that the stock at issue traded in an efficient market, and could even introduce such evidence, at the merits stage, to defeat the presumption of reliance itself. All the Supreme Court’s ruling in Halliburton II means is that defendants may now attack the presumption of reliance earlier, by submitting such evidence at class certification.
This changes very little. In fact, the Second and Third Circuit already allowed defendants to do just this. See, e.g., In re Salomon Analyst Metromedia Litig., 544 F.3d 474, 484 (2d Cir. 2008); In re DVI, Inc. Sec. Litig., 639 F.3d 623, 638 (3d Cir. 2011). The fact that the Supreme Court essentially just adopted the precedent of these Circuits should prevent defendants from attempting to make new arguments based on Halliburton II in those courts, and also defeat misleading arguments about the opinion’s meaning, like the fallacious notion that plaintiffs must now show a price increase to demonstrate price impact.
Affirming the continued vitality of Basic and the efficient market theory that underpins Basic is a significant victory for investors. The procedural guidelines imposed by the Court keep the burden on defendants to attempt to rebut the presumption of reliance with evidence that the alleged misrepresentation did not impact the price of a defendant’s stock. The ruling should not unduly restrict the rights of investors, and the conduct of securities class actions should not substantially change in the wake of the decision. Indeed, in her own concurrence, joined by Justices Breyer and Sotomayor, Justice Ginsburg made it clear that because the burden for demonstrating lack of price impact continues to rest solely on defendants, the Court’s ruling “should impose no heavy toll on securities-fraud plaintiffs with tenable claims.”
S. Douglas Bunch is a member of the Securities Fraud/Investor Protection practice group at Cohen Milstein. He is currently litigating multiple securities class actions.
From AFJ President Nan Aron’s latest column in The Huffington Post:
This is a very bad time for American women in the Supreme Court.
Three big cases were decided right at the end of its term that will profoundly affect women’s lives, subject them to conditions that are never applied to men, and damage their ability to control their own lives and health.
In McCullen v. Coakley, the Court in a “faux-nanimous” decision in which the four moderate-liberals clearly played defense, found that a 35-foot buffer zone around the entrance to abortion clinics in Massachusetts was a violation of the First Amendment. The Commonwealth had established the zones in reaction to the brutal murder of two people at a Boston clinic in 1994 and the endless harassment of women and their families attempting to enter reproductive health clinics.
But Chief Justice John Roberts, writing for the Court, swept aside reality, superimposed his own view of what happens outside clinics, and somehow found that so-called “sidewalk counselors” need to be protected more than the people who work at or make use of the clinics.
David L. Barkey
National Religious Freedom Counsel
In Town of Greece v. Galloway, the U.S. Supreme Court addressed the issue of legislative prayer for the first time since its 1983 Marsh v. Chambers decision. Claiming reliance on this decision, Justice Kennedy’s 5-4 plurality opinion (although the judgment garnered five votes, no other Justice signed onto the opinion in full) held that Marsh, in which the Court upheld a legislative prayer policy, is applicable to invocations before a town board. At issue in the Greece case was the Town’s informal invocation policy, which resulted in virtually all prayers at town board (“Board”) meetings being delivered by Christian clergy. And 85% of these prayers were overtly Christian. The plurality found no Establishment Clause violation, reversing the Second Circuit’s unanimous decision.
Although Justice Kennedy claims that the Court’s decision falls squarely within Marsh, it is in fact a vast expansion of the 1983 ruling. It sanctions sectarian legislative prayers of one faith to the exclusion of others except in the most egregious circumstances. And the ruling applies to legislative prayers whether they are given before Congress, a state legislature, or a town board. Justice Kagan’s spirited dissent reflects these realities, as well as a troubling disconnect between Justice Kennedy’s rationale and its real-life, detrimental implications for religious minorities seeking redress before local government.
Regrettably, the plurality opinion opens the door wide to overtly sectarian prayers before public meetings of government bodies. As detailed below, its new content limitations on legislative prayer are far more undefined and unworkable than Justice Kagan’s two-pronged approach to inclusive prayers. Undoubtedly, the majority’s tepid limitations on legislative prayer do not adequately protect those who are in religious minorities from feeling isolated, vulnerable, or like second-class citizens in their own communities. Furthermore, while the opinion is facially limited to legislative prayer, there are deep concerns that language from the decision taken out of context will be used by lower courts to further degrade constitutionally-mandated separation of church and state.
Marsh v. Chambers and Footnote 14
In the Marsh decision, the Court relied on the “… deeply embedded … history and tradition of this country” … “… opening of sessions of legislative and other deliberative public bodies with prayer” to carve out a legislative prayer exception to the Establishment Clause, and it applied this exception to uphold invocations before the Nebraska State legislature.
Although the Marsh majority referred to “other deliberative bodies,” the decision exclusively focused on the history and permissibility of legislative prayer before Congress and state legislatures. The Court based its legislative prayer exception on the historic fact that in 1789 “three days after Congress authorized the appointment of paid chaplains, final agreement was reached on the language of the Bill of Rights.”
The content of legislative prayers, however, was not without limitation. Rather, the prayers at issue were permissible because, as detailed in Footnote 14, the legislature’s chaplain “removed all references to Christ after a … complaint from a Jewish legislator” and the “prayer opportunity [was not] exploited to proselytize or advance any one, or to disparage any other, faith or belief.” For decades, many legal scholars understood Marsh to mean that legislative prayers are permissible provided that they are non-sectarian or inclusive in nature.
Over the last 30 years, U.S. District and Circuit Courts have been all over the map as far as the meaning of Marsh. And a number of decisions have applied the decision to uphold prayers in the context of municipal boards and commissions. Prior to the Greece decision, however, the Supreme Court never addressed this issue.
The Plurality Decision: Expanding and Perverting Precedent
Typically, in the town of Greece, New York, only around ten citizens attended Board meetings where the Christian invocations occurred. The overwhelmingly Christian nature of the prayers resulted from an informal policy by which a town employee would call local congregations until an available clergy member was found to serve as “chaplain of the month.” No instruction or guidance was given to clergy on the content of their prayers. Despite the Board’s obvious alignment with Christianity, the Supreme Court plurality validated its invocation policy under Marsh and also found that it did not result in unconstitutional religious coercion.
As an initial matter, Justice Kennedy, with virtually no historical corroboration, summarily found that the Marsh exception applied to the Board. Indeed, the parties provided no information about the history of prayer before local legislative bodies and Justice Kennedy cited to only one reference dating back to 1909. To reach this conclusion, Justice Kennedy engaged in circular reasoning by relying on Marsh’s finding of a 200-year “unambiguous and unbroken history” of Congress and subsequently state legislatures opening sessions with prayer.
Turning to the overtly Christian content of the Board’s prayers, Justice Kennedy dismissed the significance of Marsh’s Footnote 14 as merely the Court “observ[ing] the practical demands” placed on the legislature’s chaplain choosing “to appeal to more members, or at least to give less offense to those who object.” Eliminating the import of Footnote 14, Justice Kennedy announced that Marsh never required legislative prayer to be non-sectarian. He reasoned that members of the First Congress were “accustomed to invocations containing explicitly religious themes,” and the Christian nature of those prayers “must not be dismissed as a relic of a time when our Nation was less pluralistic than it is today.” Rather, today’s religious diversity should be acknowledged “by welcoming ministers from many creeds.” Justice Kennedy’s endorsement of religious diversity is one of the few points of agreement between the plurality and Justice Kagan’s dissent. It, however, is illusory as religious diversity is nowhere to be found in the new standard announced by Justice Kennedy.
The plurality further rationalized that prayers could be sectarian based on free speech principles. According to Justice Kennedy, no prayer can be “inclusive beyond dispute.” Indeed, any attempt to make a legislative prayer inclusive would wrongly apply the First Amendment as a “majority rule” that defines “permissible categories of religious speech.” Once the government “invites prayer into the public sphere, government must permit a prayer giver to address his or her own God … as conscience dictates.”
Justice Kennedy’s free speech purism, however, was short-lived. The very next paragraph of the decision paradoxically set forth new but exceedingly narrow content limitations: a prayer may “fall short of the desire to elevate the purpose of the occasion and to unite lawmakers in their common effort” where “invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion.”
Based on these limitations, the plurality issued a new, far broader standard on permissible legislative prayer. Provided that a legislative body “maintains a policy of nondiscrimination” as to prayer-givers, “the content of a prayer will not likely establish a constitutional violation” unless there is a “pattern of prayers that over time denigrate, proselytize, or betray impermissible government purpose.” Applying this standard, Justice Kennedy found the Board’s prayer policy permissible.
The plurality then rejected claims that the Board policy resulted in religious coercion of meeting attendees. It purported to base its analysis on a fact sensitive inquiry that looked at the setting of legislative prayers and the audience for them. Despite the fact that the chaplain of the month customarily gave the invocation with his or her back to Board members and called upon the entire room to pray, Justice Kennedy astonishingly determined that the purpose of the prayers “is largely to accommodate the spiritual needs of lawmakers and connect them to a tradition dating to the time of the Framers” and therefore the “principal audience” for the Board invocations is the “lawmakers themselves” and not the public.
Despite the Board meetings’ customary low public attendance, the plurality also determined that the Board policy did not dissuade members of the public from leaving the room during the prayer or arriving late to avoid it. Indeed, it found that just like state legislators, members of the public were free to enter or leave the Board meeting at their pleasure. So “nonbelievers choos[ing] to exit the room during a prayer … would not stand out as disrespectful or even noteworthy.”
Justice Kagan’s Dissent: Creating an “Untenable Choice”
Justice Kagan’s powerful dissent exposed the plurality’s opinion as being well beyond Marsh’s holding, as well as the fallacy of its rendition of the facts. As a starting point, Justice Kagan took no issue with the holding of Marsh. However, she explained that in Marsh, the prayer “was addressed to legislators alone, in a proceeding in which citizens had no role.” However, the Board has a “hybrid” role that includes legislative and constituent adjudicative functions. And critically, Marsh’s holding “hinged on the view ‘that the prayer opportunity ha[d] [not] been exploited to proselytize or advance any one … faith or belief;’ had it been otherwise, the Court would have reached a different decision.” Focusing on these significant differences, Kagan concluded that:
None of the history Marsh cited – and none the majority details today – supports calling on citizens to pray, in a manner consonant with only one single religion’s beliefs, at a participatory public proceeding, having both legislative and adjudicative components.
According to Kagan, the plurality’s expansion of Marsh creates an untenable choice for citizens that divides them along religious lines and thereby offends the First Amendment: pretend to pray in a faith not of your own, or decline to join the prayer or leave the room at the very moment when citizens need to petition their government.
To Kagan, a correct reading of Marsh requires that where “citizens of all faiths come to speak to each other and their elected officials in a legislative session” prayers should “include, rather than serve to divide.” And achieving inclusivity is a straightforward task: instruct chaplains to speak in non-sectarian terms common to diverse faiths, or invite clergy from many faiths, so that the government does not align within one faith and “the effect of even sectarian prayer is transformed.”
In refuting Justice Kennedy’s rejection of the religious coercion claims, Justice Kagan effectively argued that the plurality misapprehended the facts of the case and failed to follow its own fact-sensitive inquiry standard. She pointed out that in addition to the significant differences between the functions of state legislatures and local government, and the fact that virtually all the prayers before the Board were Christian in nature, the invocations were in fact directed to the public and not lawmakers.
Furthermore, the plurality’s misplaced reliance on the Board’s non-discrimination policy could not cure the constitutional violation. The policy was in name only because the Board virtually never offered the “chaplain of the month” role to non-Christian persons and never gave guidance to clergy to be more inclusive of other faiths. The Board’s resulting alignment with one faith was significant and constitutionally offensive because the prayers “express beliefs that are fundamental to some, foreign to others – and because that is so they carry ever-present potential to exclude and divide.”
Justice Kagan astutely concluded her dissent by stating that “[w]hen the citizens of this country approach their government, they do so only as Americans, not as members of one faith or another. And that means that even in a partly legislative body, they should not confront government-sponsored worship that divides them along religious lines.”
By William Yeomans
Fellow in Law and Government at American University
Washington College of Law
Following the October oral argument in Schuette v. Coalition to Defend Affirmative Action, I wrote for this blog that the Court appeared poised to continue “its relentless march toward evisceration of remedies for racial discrimination.” That prediction was fulfilled yesterday when the Court issued its opinion, upholding the authority of the people of Michigan to amend the state constitution by referendum to prohibit consideration of race in university admissions. The vote was 6-2 in favor of the ban. Justice Breyer joined the five conservatives, Justice Sotomayor, joined by justice Ginsburg, wrote a vigorous and lengthy dissent, and Justice Kagan recused herself, presumably because she participated in the case as Solicitor General. Of course, because each Justice is free to choose to recuse or participate without the need to state a reason, we, the taxpayers, will never know for sure.
My previous post described more fully the facts and procedural posture of the case. Briefly, following the Court’s validation of the race-conscious admission process of the University of Michigan Law School in Grutter v. Bollinger, Ward Connerly launched a referendum drive to ban consideration of race from all elements of public life in Michigan, including university admissions. The people of Michigan approved the referendum by a vote split along racial lines; whites overwhelmingly supported it and African Americans overwhelmingly opposed it. The white majority voted to deny minority applicants a benefit that the Supreme Court had declared lawful and Michigan’s universities wished to continue. Referenda are rarely kind to minority rights. Read more
By David Doniger, Policy Director, Climate and Clean Air Program, Natural Resources Defense Council
This morning the Supreme Court will hear oral argument in its third case in the last seven years on climate-changing carbon pollution and the Clean Air Act. The earlier cases cemented EPA’s authority to tackle carbon pollution; this case concerns a secondary question about the Act’s permitting provisions. Every Supreme Court case is important, of course, but in this instance it’s critical to understand exactly what is at issue, and what is already settled.
First, what’s not at issue on Monday. The Supreme Court has already held twice that the Environmental Protection Agency has the authority and responsibility under the Clean Air Act to set emission standards for dangerous climate-changing greenhouse gases. The Court decided in Massachusetts v. EPA in 2007 that EPA can set carbon pollution standards for motor vehicles, and in 2011 the Court held that EPA can do the same for power plants and other industries in American Electric Power v. Connecticut.
This is the Clean Air Act authority that President Obama’s EPA used in his first term to make the science-based determination that carbon pollution endangers our health and environment, and to set landmark standards for new cars and trucks. He’s using that authority now, as part of the Climate Action Plan, to curb the two billion tons of carbon pollution coming each year from the nation’s power plants and to strengthen standards for heavy-duty trucks.
Far from the Republican narrative that President Obama is “bypassing Congress,” the president is carrying out his duty to faithfully execute the laws already on the books, that Congress already passed – in this case, the Clean Air Act.
The case on to be heard on Monday, Utility Air Regulatory Group v. EPA, grows out of those first-term actions on carbon pollution. After being smacked down in the Court of Appeals in Washington, industry trade groups, conservative states, and others asked the Supreme Court to reconsider its two earlier decisions, overturn EPA’s endangerment finding, block the clean car standards, and effectively also block EPA’s forthcoming power plant standards. Last October, the Court rejected each of these petitions.
With this third strike, EPA’s authority to set enforceable carbon pollution standards for cars, power plants, and other big industries is now 100 percent settled.
So what did the Supreme Court agree to review? The Court asked for briefs on just one issue: whether EPA’s vehicle emission standards triggered requirements for carbon-emitting industrial sources to obtain certain kinds of permits under other parts of the Clean Air Act.
There are two relevant permitting requirements under the Act.
The first is called “new source review,” and it is found in the Prevention of Significant Deterioration (PSD) provisions of the Act. Each new and modified major industrial source must get a construction permit before starting to build, showing that it will use the “best available control technology” (BACT) for “each pollutant subject to regulation” under the Act.
The second is called the “operating permit program,” and it is found in Title V of the Act. It requires each existing major industrial source to have an operating permit collecting in one place all of the emission limits and monitoring obligations that apply to the source.
What is the relationship between permits and standards?
Standards are fully enforceable on their own even if there are no permits. Plant operators have to report their emissions and show that they meet their standards, and violations bring fines and penalties.
Permits are important nevertheless. Construction permits are important because they establish BACT pollution limits for new or expanded sources when there is no standard. (EPA is only now developing carbon pollution standards for power plants, and standards for other industries will take longer.) And later, when a standard is a bit old and out of date, the plant-specific determination of BACT makes sure that big new plants will be built with up-to-date modern pollution controls.
Operating permits are important because they collect all applicable standards and requirements in one document, simplifying compliance and enforcement. But those standards are legally binding and enforceable even if there is no operating permit.
These permitting requirements apply to “major” sources – those that emit amounts of pollution above certain threshold amounts set forth in the law. The idea was that big polluters should be scrutinized more carefully than small ones, and that they can afford it.
The question the Supreme Court will consider is whether an industrial source can become “major” – and subject to these permitting and BACT requirements – because of its carbon pollution.
According to EPA and the Court of Appeals in Washington, the Clean Air Act makes no distinction between carbon pollution and other kinds of pollution. The words of the statute say that the permitting and BACT requirements apply to “any air pollutant” and “each pollutant subject to regulation.” So when EPA set the carbon pollution standards for vehicles, carbon dioxide (CO2) became a regulated pollutant just like sulfur dioxide, nitrogen oxides, or any other substance the Clean Air Act has controlled for decades. From then on, that meant major sources of CO2 had to obtain construction and operating permits.
The industry and state petitioners claim otherwise. They claim that CO2 is totally different from the pollutants Congress meant the permit requirements to cover, and that CO2 never triggers those requirements. In other words, a plant’s CO2 emissions, no matter how large, can never make that plant a “major” source and can never require it to get either construction or operating permits.
The industry groups and their conservative allies have thrown up a hodgepodge of arguments why the statutory words – “any air pollutant” and “each pollutant subject to regulation” – should be read to mean something other than what they say. But the challengers start well behind the 8-ball. The Supreme Court has already ruled, inMassachusetts and American Electric Power, that carbon dioxide and the other climate-changing pollutants are “air pollutants” under the Clean Air Act. The government and its allies (including NRDC) have filed briefs showing that “any” and “each” pollutant include climate-changing pollutants just like all others.
The only thing different about climate-changing pollutants is that fuel-burning sources emit a lot more CO2 than other pollutants. That doesn’t raise any questions about how you handle a new power plant, an oil refinery, or a natural gas processing plant. Their CO2 emissions are way, way above the statutory thresholds (100 or 250 tons per year, depending on the industry) that define a “major emitting facility.” There’s no reason not to require permits and BACT pollution controls for giant polluters like these.
So EPA decided to phase in the permitting requirements, starting with the biggest emitters – ones that release more than 100,000 tons of carbon pollution each year. Smaller sources don’t have to do anything, even if they emit more than 100 or 250 tons per year of CO2.
The industry groups and their allies profess to worry that EPA may someday require PSD permits for thousands of small CO2-emitting sources that have never needed permits before. This, they say, would be “absurd.” So they’re asking the Court to create a total permitting exemption for all sources of climate-changing pollutants – even for giant CO2 sources like power plants and oil refineries – despite the plain language of the law.
Hopefully, on Monday the Supreme Court will see through these efforts to hide power plants and oil refineries behind homes and grocery stores. The briefs show that EPA is actually implementing the permit requirements in a reasonable and responsible way – focusing on the biggest climate polluters that produce the vast majority of all the carbon pollution, while working on solutions that will avoid burdening small sources or clogging the permit system.
In the first two years that these requirements were in effect, fewer than 200 facilities nationwide, all of them big industrial projects, needed PSD permits because of their climate-changing pollution. That’s an average of two facilities per state per year. Not a single home, hospital, church, or grocery store has had to do a thing. So despite all the cries of alarm, the Clean Air Act’s permitting requirements are working just fine.
We’re confident that EPA and the Court of Appeals got it right – that the permitting requirements do apply to large industrial carbon pollution sources.
But the most important thing to remember is that the Supreme Court has already reaffirmed EPA’s authority and responsibility to act on the overwhelming science showing that carbon pollution is driving dangerous climate change.
President Obama deserves enormous credit for setting landmark clean car standards, for tackling the dangerous carbon pollution from our power plants, and for taking the other climate protection actions under the Climate Action Plan. These critical steps are not at issue in Monday’s argument, and they are essential to protect our children and grandchildren from a world turned upside down by climate change.