Tag: amicus briefs

Requiring Equal Protection Doesn’t Violate the Equal Protection Clause

It’s unusual that the Supreme Court would choose to review an affirmative action case even though Fisher v. UT-Austin was still pending. Ordinarily, when faced with a second case on the same legal issue, the justices “hold” it until they decide the first, then either send the second one back to the lower court to apply the newly announced rule or, perhaps, schedule it for oral argument on any additional issues that need to be addressed. Yet Schuette v. Coalition to Defend Affirmative Action is no ordinary case. 

Schuette asks whether a ban on racial preferences — or at least how that ban was enacted — violates the Equal Protection Clause, whereas Fisher asked whether their use does. In Schuette, 58% of Michigan voters approved Proposal 2 (a.k.a. the Michigan Civil Rights Initiative), a state constitutional amendment that prohibited racial preferences in public education, employment, or contracting. That ban was challenged by a coalition of groups and individuals who support the continued use of affirmative action, particularly at institutions of higher education.

A federal district court upheld the ban, but then a panel of the U.S. Court of Appeals for the Sixth Circuit struck it down by a 2-1 vote. The full Sixth Circuit then agreed that Prop 2 was unconstitutional, in a contentious 8-7 ruling that produced five separate dissenting opinions. Now before the Supreme Court, Cato has joined the Pacific Legal Foundation and four other organizations on an amicus brief arguing that Michigan voters have acted constitutionally by prohibiting race- and sex-based discrimination or preferential treatment in public university admissions.

We contend that Prop 2 doesn’t violate the Equal Protection Clause under the Court’s “political structure” precedent, which outlaws subtle distortions of governmental processes in a way that places special burdens on the ability of minority groups to achieve beneficial legislation. The measures struck down in under that line of precedent differ marked from Prop 2 because, unlike in those older cases, minorities now have more protections against discrimination. Moreover, these protections apply across all levels of state government, not just discrete functions like housing and school busing.

Furthermore, Prop 2 creates no racial classifications so it cannot trigger “strict scrutiny” review. The simple fact that Prop 2 deals with race does not imply that it somehow disenfranchises racial minorities. If the Court finds that the “political structure” doctrine prohibits Prop 2, that precedent must be overruled as inconsistent with the text of the U.S. Constitution — though this is probably unnecessary given more modern precedent.

Interestingly, the California Civil Rights Initiative, known as Proposition 209, has been upheld repeatedly by the (notoriously left-wing) Ninth Circuit. Indeed, there is a wealth of evidence showing that minorities are succeeding under that system, which also prohibits the consideration of skin color in college admissions — and has led to higher attendance and graduation rates.

We urge the Supreme Court to side with Michigan’s voters and hold their ban on racial preferences (which the Court itself has admitted to be on shaky constitutional ground) to be constitutional.

The Court will hear the Schuette case in October or November.

The Fifth and Sixth Amendments Protect the Right to Counsel of Choice During Criminal Trials

Federal criminal defendants must fight a battle against the largest and most powerful organization in history, the U.S. government. At the very least, hopefully, they have a trusted attorney to fight with them.

That right of criminal defendants to choose their own lawyers is guaranteed by the Sixth Amendment and ensures the integrity of the adversarial justice process. Yet prosecutors are increasingly using a procedure called “asset forfeiture”—which freezes assets suspected of being tied to crime—to deny defendants the funds they need to retain the lawyer of their choice.

In January 2005, Kerri Kaley, then a sales representative with a New York-based medical device company, was informed that she was the target of a grand jury investigation in Miami. She was suspected of stealing prescription medical devices from hospitals and selling them on the black market. Kerri and her husband Brian (also under investigation) hired counsel to represent them in what turned out to be a two-year investigation. During that period, their lawyers interviewed witnesses, reviewed countless documents, researched legal issues, and conferred with the prosecutors.

To pay their attorneys, the Kaleys took a home equity line of credit on their house and bought a certificate of deposit. In 2007, the grand jury returned indictments, accompanied by asset forfeiture orders restraining the Kaleys’ money. Because they had been indicted, the money was said to be criminally “tainted.” These asset-restraining orders were obtained without the Kaleys’ lawyers present (called an ex parte hearing).

The Kaleys challenged the freezing of their assets, arguing that, under the Due Process Clause of the Fifth Amendment, they were entitled to a pretrial adversarial (not ex parte) hearing where they could contest the charges against them. They argued that their constitutional claim is particularly strong because the seized money was necessary to retain their chosen lawyers.

The lower courts disagreed, however, holding that the only adversarial hearing the Kaleys were entitled to was their trial—the same trial for which where they can’t afford the long-serving counsel of their choice. Now at the Supreme Court, the Kaleys hope to vindicate the right to retain counsel of choice. Indeed, the U.S. Court of Appeals for the Eleventh Circuit is an outlier from the overwhelming majority of federal appellate courts, which use a more demanding test for such claims.

Supporting the Kaleys, Cato has filed a brief arguing that the stringent test developed in a 1976 case called Mathews v. Eldridge should be used to determine the scope of the Kaleys’ hearing. Under Mathews, where the government seeks to restrain contested assets that would otherwise be used to retain counsel of choice, an adversarial hearing is required in which defendants can challenge the indictment used to support forfeiture.

Because the expansion of forfeiture has given rise to well-documented abuses, the risk of error is great and the individual interests at stake are highly compelling. Ex parte hearings are insufficient to reduce the probability of error and the countervailing government interests are insufficient to tip the balance. 

Ultimately, the right to counsel of choice preserves the integrity of the legal process by ensuring that the defendant, not the government, controls whom he trusts with his case.

The Supreme Court will hear Kaley v. United States this fall.

A Great Year for Cato at the Supreme Court

The Supreme Court’s term is over, with 75 cases having been argued and decided. It’s safe to say that the most significant ones were those decided this week, on the politically fraught subjects of affirmative action, the Voting Rights Act and gay marriage. I’m extremely proud that Cato was on the winning side of each of these issues. In fact, we were the only organization to file briefs supporting the challengers on each one (Fisher v. UT-AustinShelby County v. Holder, Windsor v. United States Perry v. Hollingsworth).

That says a lot. Not that the Supreme Court always takes its guidance from us – would that it were so! – but that we’re consistent in embracing the Constitution’s structural and rights-based protections for individual freedom and self-governance. It’s gratifying that the Supreme Court saw it our way in those “big” cases, even if Fisher was an extremely narrow decision and the others were all 5-4.

But that’s not all. After finishing my commentary on Windsor and Perry last night, I was curious to see how we did overall, beyond the high-profile cases. It turns out that we went 15-3 on the year. That is, looking purely at briefs we filed on the merits – you can see our record on briefs supporting cert petitions here – the Supreme Court ruled our way 15 times and against us three (and I can assure you that we don’t pick cases strategically to inflate our winning percentage. (I don’t count Perry in either column, by the way. While we ended up with a favorable result, Prop 8 struck down, the Court decided the case on standing grounds, incorrectly in my view).

Again, I’m not claiming that the Court was heavily influenced by briefs with Cato’s (or my) name on them – there’s just no way to know, and even briefs that are cited may be less influential than others – but many, many of these decisions track our thinking. That’s also gratifying, regardless of how the justices reached their conclusions.  

For the record, here’s the list of cases in which we filed this term (in order of argument):

Winning side (15): Kiobel v. Royal Dutch PetroleumArkansas Game & Fish Commission v. United States, Fisher v. UT-Austin, Florida v. Jardines, Bailey v. United States, Comcast v. Behrend, The Standard Fire Insurance Co. v. Knowles, Gabelli v. SEC, Koontz v. St. Johns River Water Management DistrictPPL Corp. v. IRSShelby County v. Holder, Horne v. U.S. Dept. of Agriculture, Windsor v. United StatesAID v. AOSISekhar v. United States

Losing side (3): City of Arlington v. FCCSalinas v. TexasUnited States v. Kebodeaux

My colleague Walter Olson has already compared our record to the greatest sports teams of all time, as well as what I consider to be the most dominate year by a baseball player, Sandy Koufax in 1963 (who went 25-5 and was the regular season and World Series MVP). I just wish that The Man With the Golden Arm could have had as long a career as Cato’s amicus brief program.

Supreme Court: Government Can’t Force Federal Contractors to Waive Their Rights

Despite its awkward name and somewhat technical details, AID v. AOSI provided the Supreme Court with an opportunity to make a very simple point: The federal government can’t force its contractors – whether they’re corporations (as in this case) or individuals – to promote policies that are unrelated to the program for which they receive federal funds. The Court correctly ruled that executing a program to combat HIV/AIDS is unrelated to advocating for or against the legalization of prostitution. One can imagine other instances: Treating drug abuse has little to do with one’s views on drug legalization. Running an adoption agency can be done whether one is pro-choice or pro-life. Missiles can be built regardless of whether the contractor favors a particular foreign policy stance.

As Cato argued in its amicus brief, such “policy requirements” significantly burden political speech, the constitutional protection of which lies at the very heart of the First Amendment. Had the government’s position been accepted, it would eviscerate the “unconstitutional conditions” doctrine, which the Supreme Court has long recognized to prevent the conditioning of generally available federal benefits on the waiver of fundamental rights. The Court has never given Congress carte blanche to give contractors Hobson’s Choices, whether relating to the freedom of speech or other constitutional rights. Today it thus strengthened the principle that Congress’s power to condition funding is limited to ensuring that its funds are used to properly implement the program that Congress wishes to fund, not to compel private organizations to adopt express “policies” that don’t relate to the use of those federal funds.

For more on AID v. AOSI, see my recent op-ed.

Cato Brief Gains National Acclaim

Remember Bond v. United States, that typical story of adultery, federalism, and chemical weapons?  Cato has actually filed four briefs in Bond, most recently last month, the last three making the point that the president can’t expand federal constitutional powers simply by signing a treaty.

Our arguments are based on a 2005 law review article by Georgetown law professor (and Cato senior fellow) Nicholas Quinn Rosenkranz, the primary author of these last three briefs. It’s certainly unusual for a law review article to play a pivotal role in a Supreme Court case, but, as those following Bond know, there’s little “usual” about this case. 

Maybe that’s why the national media is starting to pay attention to our attempt to get the Supreme Court to be faithful to this particular corner of the Constitution: last week, the National Law Journal declared our Bond filing its “brief of the week.”

For more on this case, and our arguments, watch the lunch panel we had on Friday, featuring Nick Rosenkranz and Chief Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit.  The Supreme Court will hear oral argument in Bond in October.

Government’s Legal Arguments Shrivel on the Vine

Yet again the unanimous Supreme Court has slapped down a government attempt to deprive property owners of their civil rights.  What was at stake in Horne v. Dept. of Agriculture wasn’t even the property – raisins! – but the mere ability to challenge the government’s desire to take that property without meaningful judicial review.

Nobody should have to suffer a needless, Rube Goldberg-style litigation process to vindicate their constitutional rights. Yet that’s exactly what the U.S. Department of Agriculture sought to impose on raisin farmers Marvin and Laura Horne when they protested the enforcement of a USDA “marketing order” that demanded that the Hornes turn over 47% of their crop without compensation.

These New Deal-era regulations are bad enough – forcing raisin “handlers” to turn over some of their crop to the government so it can control raisin supply and price – but here the government kept throwing up obstacles to the Hornes’ attempts to assert that they shouldn’t legally be subject to them.  The government demanded about $650,000 from the Hornes and didn’t want to give them a day in court until they paid the money and jumped through assorted administrative hoops.

The Supreme Court correctly rejected that absurd position and reversed the California-based U.S. Court of Appeals for the Ninth Circuit that upheld it, reinforcing the line drawn by five other circuit courts.  “In the case of an administrative enforcement proceeding,” Justice Thomas wrote on all his colleagues’ behalf, “when a party raises a constitutional defense to an assessed fine, it would make little sense to require the party to pay the fine in one proceeding and then turn around and sue for recovery of that same money in another.”

Indeed, there’s no reason to treat Fifth Amendment takings claims any differently than lawsuits against government violations of other constitutional provisions.

Here’s more background on the case and Cato’s amicus brief.

Minnesota Supreme Court Punts on Key Privacy/Property Rights Case

The city of Red Wing, Minnesota, has a rental property inspection program—one that’s unfortunately not unusual—whereby landlords and tenants must routinely open their doors to government agents. These searches take place even if both the landlord and tenant believe it not to be necessary. The owner of the property even has to pay a fee for the unwanted search to receive a rental license! The city only sometimes makes initial requests for consent as a mere courtesy, because it proceeds with an administrative warrant in the event of a refusal—without a showing of probable cause to believe there’s a housing code violation or other problem. The inspection ordinance doesn’t even attempt to prevent the disclosure of information revealed during the search; the whole neighborhood may find out the contents of your medicine cabinet or choice of DVDs.

A group of landlords and tenants challenged the inspection program, arguing that several alternatives are available to meet what legitimate interests local governments have. Last September, Cato joined the Reason Foundation, Libertarian Law Council, Minnesota Free Market Institute at the Center of the American Experiment, and Electronic Frontier Foundation and filed an amicus brief urging the Minnesota Supreme Court to confirm that no Minnesotan should be subjected to an intrusive invasion of privacy when there has been no showing of some cognizable public health or safety issue within the home subject to inspection.

Last Friday, the Minnesota Supreme Court handed down its decision in McCaughtry v. Red Wing. Unfortunately, the Court decided to dodge the question of whether the government is required to obtain a warrant to inspect a residence without individualized probable cause under the U.S. or Minnesota Constitution.

The court’s reasoning is maddening: Red Wing’s ordinance allows judges to imagine individualized standards even when the city doesn’t present any individualized evidence when applying for a warrant. Moreover, the Court determined that the challenge was facial and thus the law would need to be unconstitutional in all of its potential applications in order to be struck down. Because some warrants could be constitutional, the Court ruled against the homeowners, and had absolutely nothing to say about the propriety of warrants issued without individualized probable cause. It did this even though the city has never sought such a warrant and has never said it has any interest in asking for one. The court was clear that its holding had absolutely nothing to say about whether a warrant issued without individualized probable cause would be unconstitutional.

So after nearly seven years of litigation, the plaintiffs are left where they started: these warrants may be unconstitutional, but the courts won’t say so. As a result, Minnesota residents remain subject to unconstitutional, over-broad, and intrusive searches of their homes, belongings, and lives.

There was a small silver lining in all this, a concurrence by Justice Paul Anderson, who said that he agreed with the court’s (unanimous) opinion but that the Minnesota Constitution does require individualized probable cause to obtain a warrant to enter someone’s residence.  Although no other justices joined his opinion, this is the first statement by a state supreme court judge ever that narrows administrative warrants in the context of home inspections since the U.S. Supreme Court’s unhelpful and unclear Camara decision in 1967 started the trend toward such programs. (Telllingly, this concurrence was Justice Anderson’s last official act; he retired on Friday.) And that will be something to use on this issue going forward, whether in state courts or in federal courts, to eventually ask the U.S. Supreme Court to reconsider Camara.