Topic: Law and Civil Liberties

Comcast v. Behrend: Class Certification at the High Court

By
Walter Olson

Confirming the pattern of 2011’s Wal-Mart v. Dukes, the issue of class action procedure continues to generate a sharp 5–4 ideological split at the Supreme Court. On Wednesday, replicating the general Dukes line-up, the Court’s five conservatives ruled against certifying a large antitrust class action against Comcast over its conduct in the Philadelphia cable market, finding that the plaintiffs’ model of economic damages did not suffice to justify handling the case as a class action. (The trial court had knocked out three of the plaintiffs’ four theories of recovery; the majority found the plaintiffs’ economic model did not distinguish among the theories in such a way as to enable a court to recognize distinct damages attributable to the surviving theory.)

Despite protest from a few pro-antitrust commentators and sweeping claims of victory by a few on the defense side, Comcast is most likely to be remembered as a relatively narrow ruling with limited impact on future cases, for reasons Andrew Longstreth explains at Reuters. Some plaintiffs will need to be a bit more careful in constructing their cases, but the differences won’t be major. Indeed, the dissenters, led by Justices Ruth Ginsburg and Stephen Breyer, describe the majority’s ruling as “good for this day and case only.” 

The Cato Institute had entered the fray with an amicus brief arguing the following: 

  1. Courts must engage in a rigorous analysis at the certification stage rather than wave plaintiffs through the gate, even when such an inquiry overlaps with questions of merits that go to the case’s ultimate substantive resolution.
  2. In particular, expert reports at the certification stage should be subject to Daubert tests of admissibility, as they are at the merits stage.

The majority opinion emphatically agreed with us on the first point and the dissent did not make any real attempt to challenge it. That suggests that a sound view of this question may command a broad or even unanimous consensus on the Court.

To many participants’ surprise, the Court never reached the second point about admissibility, instead proceeding to rule on questions of predominance. This led to a sharp protest from the four dissenters that the majority was reaching out to decide the case on a different ground than it had been briefed on. 

Few doubt that we can expect more wrangling at the Court on class action standards. That could soon happen in its consideration of a Sixth Circuit washing-machine case called Whirlpool v. Glazer, discussed by Ted Frank here.

Topics: 
Law and Civil Liberties

If Supreme Court Has Jurisdiction, DOMA Likely Falls, With a Controlling Federalism Opinion from Kennedy Alone

By
Ilya Shapiro

The jurisdictional arguments were even more complicated today, but if the Supreme Court reaches the merits, there seem to be five votes to strike down DOMA’s Section 3: the four “liberal” justices on equal protection grounds and Justice Kennedy because the federal government is intruding on state authority to regulate marriage.  Now, my prediction is worth what you paid for it – and one or more of the liberals (or even Chief Justice Roberts) could join Kennedy to make the resulting ruling less stark – but there are good reasons to believe that a 4-1-4 merits decision is possible even if Kennedy is ultimately persuaded by the equal protection claim.  To the extent the swing justice is wary of the political implications of striking down all states’ marriage laws, then he might not want a ruling that would set the logical precedent for such a move.  There was a definite sense at the Court that the provision of DOMA that limits marriage to opposite-sex couples for purposes of federal law isn’t long for the world, but a 4-1-4 decision would have no controlling theory.

More broadly, on a day when oral argument got surprisingly more lively than it did over California’s Prop 8 yesterday, all the justices took the opportunity to ask pointed questions of the various counsel arguing issues that ranged from the U.S. government’s awkward participation in the case, the standing of the House of Representatives to defend DOMA, the meaning of equal protection, and the role of federalism in all this.  Justice Kagan focused on the “moral disapproval” that motivated Congress to pass DOMA in 1996, Chief Justice Roberts expressed growing frustration with Solicitor General Verrilli’s treatment of federal-state relations, and Justice Kennedy continued musing aloud about whether and how to decide the case.  We’re in for a real cliffhanger of a ruling.

Topics: 
Law and Civil Liberties

When Did Laws Denying Same-Sex Couples Marriage Licenses Become Unconstitutional?

By
Ilya Shapiro

Readers of this blog know that Cato filed a brief in Hollingsworth v. Perry arguing that state prohibitions on same-sex marriage violate the Equal Protection Clause of the Fourteenth Amendment.  But since when have they done that?  More broadly, to quote a colloquy between Justice Scalia and Ted Olson in the Perry argument:

JUSTICE SCALIA: I’m curious, when -­ when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.

JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. When do you think it became unconstitutional? Has it always been unconstitutional? …

MR. OLSON: It was constitutional when we -­ as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that -­

JUSTICE SCALIA: I see. When did that happen? When did that happen?

MR. OLSON: There’s no specific date in time. This is an evolutionary cycle.

With due respect to Ted Olson, a former solicitor general who’s argued more cases than I’ve watched, I think he missed the mark on this one.  How do rights spontaneously emerge?  To pick up on one of the above examples, was segregation constitutional in 1900 but then somehow not 50 years later?  No, Plessy v. Ferguson was incorrectly decided in 1896 and Brown v. Board of Education overruled it rather than merely asserting that there was an “evolutionary cycle.”  Justice Scalia himself recognized that state racial discrimination of all kinds became unconsitutional when the Fourteenth Amendment was ratified, in 1868 – and not at some time in future when each particular instance of it was found to violate that provision.

And so, either it was unconstitutional to exclude same-sex couples from marriage in 1868 or it’s still constitutional to do so.  Josh Blackman and I wrote about doing this “originalism at the right time” in our exegesis of the Privileges or Immunities Clause in the context of the right to keep and bear arms, Keeping Pandora’s Box Sealed.  (Josh later extended that analysis in a short piece on gender equality and sex discrimination.)

Which isn’t to say that what the challengers have to prove here that the drafters or ratifiers of the Fourteenth Amendment had gay marriage in mind.  But it does mean that you have to look at what “equal protection of the laws” in 1868 and apply that understanding accordingly.  As Elizabeth Wydra, my co-counsel on our Perry brief, wrote on the Constitutional Accountability Center’s blog:

While race was obviously at the forefront of the minds of the Amendment’s drafters – after all, they had just secured an amendment banning slavery in the wake of a brutal civil war–they specifically chose language that would protect against unequal treatment based on more than just racial discrimination, and in fact affirmatively rejected narrower proposals that would prohibit only racial discrimination.

Even so, had Olson given Justice Scalia the answer I have suggested, Scalia surely would have retorted that there was no way the American people were thinking of marriage equality for gay and lesbian couples when they ratified the Amendment. That’s not the point. No originalist – not even Justice Scalia – believes that the plain words of the Constitution apply only in the ways the framers expected. The ruling Justice Scalia announced from the bench just before the start of arguments this morning is a perfect example: just because there weren’t drug-sniffing police dogs in 1791, doesn’t mean their use can’t violate the Fourth Amendment’s protection against unreasonable searches and seizures, as the Court held today in Florida v. Jardines.

The Constitution guarantees equal protection of the laws to “any person.” In looking to what rights were understood to be protected equally, the framers of the Fourteenth Amendment understood state-sanctioned marriage as a personal, individual right that must be made available on an equal basis to all persons. Accordingly, by writing into the Constitution a requirement of equality under the law and equality of basic rights for all persons, which included the right to marry, the Amendment’s framers ensured that discriminatory state laws would not stand in the way of Americans exercising their right to marry the person of their own choosing. Laws that discriminate and deny to members of certain groups, including gays and lesbians, the right to marry the person of one’s choice thus contravene the original meaning of the Fourteenth Amendment.

See also Josh Blackman and Orin Kerr.  And for more on the original meaning of the Equal Protection Clause, see my op-ed with CAC’s president, Doug Kendall.

Topics: 
Government and Politics, Law and Civil Liberties

Oral Argument in Prop 8 Case: Kennedy Is Key but Technical/Non-Decision Likely

By
Ilya Shapiro

To the extent oral argument is a predictor of anything – recall how set the Supreme Court was to strike down Obamacare a year ago – the most likely outcome in Hollingsworth v. Perry is a non-decision of some sort.  Only three justices (Scalia, Kennedy, Alito) seemed willing to find that the Prop 8 proponents had standing to bring the case to the Court and one of those (Kennedy) didn’t seem comfortable either striking down or upholding California ban on gay marriage.  

Indeed, the main thing this argument did was to bring back questions of why the Court took the case in the first place.  Unlike the Defense of Marriage Act case of United States v. Windsor, which will be argued tomorrow, the lower court’s ruling in Perry affected only California’s peculiar circumstances: granting gay marriage (by judicial opinion), then taking it away (by popular vote), and otherwise granting same-sex couples all the rights and benefits of marriage except the word.  The Supreme Court tends to use any excuse available not to hear controversial cases, and this one was chock full of them (as even Ted Olson and David Boies argued in their opposition to the petition for certiorari).

But now we’re left with two most likely scenarios: (1) the “liberal” justices potentially joining Chief Justice Roberts on a ruling that the petitioners lack standing, which would probably vacate the Ninth Circuit ruling but leave the district court’s ruling against Prop 8 in place; or (2) no majority because Justice Kennedy (and perhaps others) would prefer to dismiss the case as improvidently granted (a “DIG” in insider terms), which would leave the Ninth Circuit’s ruling in place – so Prop 8 would also remain struck down, albeit on narrower grounds than in the first scenario.

Or we could have one other intriguing non-decision scenario: The Court sets the case for further briefing and re-argument on any number of potential issues – the factual evidence regarding asserted state interests (e.g., outcomes for children raised by gay couples, the effect of allowing gay marriage on marriage and divorce rates more broadly), the historical meaning of equal protection (see Cato’s brief), or some other real or pretextual reason for kicking this can down the road.  Because if there was agreement on one point this morning – other than that the U.S. government’s argument that states’ only options were granting same-sex marriage or not giving gay couples any rights at all (the logical consequence of the Ninth Circuit’s ruling) – it was that gay marriage is a very new phenomenon that at present takes the Court into “uncharted waters” (to quote Justice Kennedy).  And so the justices may want to let the social science (and public opinion) develop for a while.

But, of course, these concerns – as well as the procedural complications – were present when the Court took the case in December, so why take it in the first place?  It could well be that either the “conservative” or “liberal” justices wanted to force Justice Kennedy’s hand. Well, it was clear today that the gentleman’s not for forcing.

For further analysis, which I’m gratified to see is substantially similar,see Tom Goldstein and Lyle Denniston at SCOTUSblog.

Topics: 
Government and Politics, Law and Civil Liberties

Jardines: The Supreme Court Retreats to the Home

By
Jim Harper

The Supreme Court ruled today in Florida v. Jardines that “use of trained police dogs to investigate the home and its immediate surroundings is a ‘search’ within the meaning of the Fourth Amendment.”

It’s the right result. The Court was divided 5-4, though, and the case shows some of the same fissures around Fourth Amendment doctrine that U.S. v. Jones did last year.

The majority opinion, written by Justice Scalia, won’t clear up the doctrinal debates, which are sure to continue. Instead, it retreats to the home. The specific protection for “houses” in the Fourth Amendment, he wrote:

renders this case a straightforward one. The officers were gathering information in an area belonging to Jardines and immediately surrounding his house—in the curtilage of the house, which we have held enjoys protection as part of the home itself. And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner.

Property law gives strangers an implied license to approach a house for the variety of purposes they may have. “But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that.”

Justice Scalia did use the case to answer a question left open by Jones. He emphasized that the “reasonable expectation of privacy” test from Katz v. United States (1967) built upon, and did not supplant, the Fourth Amendment’s foundation in property. He specifically declined to use that test in the holding.

The dissent objected vigorously to the idea that approaching the front door of a home via the walk was a trespass.

“[G]athering evidence—even damning evidence—is a lawful activity that falls within the scope of the license to approach,” Justice Alito wrote. “And when officers walk up to the front door of a house, they are permitted to see, hear, and smell whatever can be detected from a lawful vantage point.”

The dissent also rejected an argument put forward by the concurrence: that the reasonable expectation of privacy test is an alternative ground for the holding.

Yes, Justice Kagan would also have used “reasonable expectations” to decide the case, but her concurrence covers more important ground than that. As she did at oral argument, she fixed on the government’s use of the dog to perceive things that couldn’t otherwise be perceived. That’s what searching is.

“[P]olice officers came to Joelis Jardines’ door with a super-sensitive instrument, which they deployed to detect things inside that they could not perceive unassisted.” And later: “[A] drug-detection dog is a specialized device for discovering objects not in plain view (or plain smell).”

In the Cato Institute’s brief in the case, I emphasized that drug-dog detection was but one form of chromatography, the use of which the court should treat as searching because it “look[s] for or seek[s] out that which is otherwise concealed from view” (quoting Black’s Law Dictionary).

Read the rest of this post »

Topics: 
Law and Civil Liberties, Telecom, Internet & Information Policy

More from Cato Scholars on the Marriage Cases

By
Walter Olson

This morning the Supreme Court hears oral argument in Hollingsworth v. Perry, the Prop 8 case, previewed in this space yesterday and the topic of much past attention at Cato. Over the past 48 hours Cato scholars and friends have been writing up a storm:

  • An editorial in the Wall Street Journal contends that the issue should be left to the political process. In response, Cato constitutional studies director Roger Pilon says the Journal goes fundamentally astray on (among other things) whether the Equal Protection Clause was meant to apply only to some short list of “protected classes,” and whether the Perry and Windsor cases resemble Roe v. Wade (they don’t).
  • At Reason, Cato’s Ilya Shapiro debates Jonathan Adler on whether federalism provides a useful organizing concept for the issue. Plenty of debate on that topic at Volokh Conspiracy.
  • In articles at Hoover’s Defining Ideas and Ricochet, Cato adjunct scholar Richard Epstein explains why he finds originalism in tension with liberty on the issue, and has some advice for Justice Anthony Kennedy.
  • Last chance to register for Cato’s all-star panel tomorrow with former Republican National Committee head Ken Mehlman (NPR profile), Freedom to Marry founder Evan Wolfson (BuzzFeed profile), and Cato’s Ilya Shapiro (AFF profile). You can also watch live online here, and comment on Twitter at hashtag #CatoEvents.
  • I’ve got another roundup at Overlawyered noting tomorrow’s panel and other upcoming events, and summarizing a panel on related issues held at Cato last week; I also note the paradox in one recent poll in which a non-trivial number of participants took the view both that same-sex marriage is a right under the U.S. constitution, and that states should be left to go their own ways on whether to recognize it.
Topics: 
Law and Civil Liberties

Casket Case Shows Economic Liberty to Be Alive and Well

By
Ilya Shapiro

Last week, the Institute for Justice scored a resounding victory for the right to earn an honest living in an unlikely case that pitted woodworking monks against the Louisiana State Board of Embalmers and Funeral Directors.  The New Orleans-based U.S. Court of Appeals for the Fifth Circuit – where I clerked – ruled in a final, unanimous decision (including one Obama-appointed judge) that Louisiana violated the St. Joseph Abbey monks’ economic liberty when it forbade them from selling the caskets they make to support their religious order.

Significantly, the court ruled that the Constitution doesn’t allow the government to enact laws simply to shield industry cartels from honest competition.  Although IJ was already assured of victory, given that Fifth Circuit had issued a divided preliminary opinion in October, that ruling left open some tricky questions that this latest decision definitively settled.  

Last Wednesday’s ruling makes clear that laws having no purpose but to enrich certain protected interests are unconstitutional, using reasoning that should be a model for courts across the country.  

Louisiana now has 90 days to seek review in the U.S. Supreme Court – which supporters of economic liberty should welcome because IJ’s previous litigation created a split in the federal lower courts that can only be resolved, for the nation as a whole, by the Supreme Court. 

For more on St. Joseph Abbey v. Castille, see IJ’s case page and this Wall Street Journal op-ed by IJ’s Chip Mellor and Jeff Rowes. And if you’re a law student interested in using your legal skills to promote liberty this summer, you should apply to IJ’s epic public interest boot camp (of which I’m a graduate, though in my day there wasn’t any skydiving or aikido).

Topics: 
Law and Civil Liberties, Regulatory Studies

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