Supreme Court Review 2014


The Supreme Court held 6-2 in Schuette v. Coalition to Defend Affirmative Action that voters may by ballot prohibit affirmative action in public university admission decisions.  In 2006, Michigan voters adopted a constitutional amendment that prohibited preferential treatment in admissions to public universities on the basis of race, sex, color, ethnicity, or national origin.  The majority of the court concluded this amendment does not violate the Equal Protection Clause of the 14th Amendment.  Justice Anthony Kennedy, in a plurality opinion joined only by Chief Justice John Roberts and Justice Samuel Alito, concluded this case is about who and not how the debate over racial preferences should be resolved. 

“There is no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters.” 

Justices Sonya Sotomayor and Ruth Bader Ginsburg dissented; Justice Elena Kagan did not participate in the case.  While this case was limited to the use of race in public university admission decisions, Michigan’s constitutional amendment also prohibits the use of racial-preference in state and local government employment and contracting.  Presumably, these provisions are also constitutional.

In a 5-4 decision, the court held in Town of Greece v. Galloway that Greece did not violate the First Amendment by opening its meetings with a prayer. From 1999 to 2007, all prayer givers were Christian, and some referred to Jesus.  The court concluded that legislative prayer is not required to be nonsectarian and that the prayers in this case weren’t coercive. 

In Marsh v. Chambers, the court held the Nebraska legislature didn’t violate the First Amendment by opening its sessions with a prayer delivered by a chaplain paid from state funds.  The proposition that Marsh allows only nonsectarian prayer, “is irreconcilable with the facts of Marsh and with its holding and reasoning.” Only allowing nonsectarian prayer would require state legislatures and local governments to “act as supervisors and censors of religious speech,” and it isn’t clear when a prayer is sectarian.  Prayer before town board meetings isn’t coercive just because people who attend meetings often have business before the board.  Prayers in this context—and the state legislative context where peop;le can only address the legislature by invitation—aren’t intended for the public, but for the lawmakers “who may find that a moment of prayer or quiet reflection sets the mind to a higher purpose and thereby eases the task of governing.” 


In a unanimous opinion in McCullen v. Coakley the court held that a Massachusetts statute making it a crime to stand on a public road or sidewalk within 35 feet of an abortion clinic violates the First Amendment.  The court reasoned the law “burden[s] substantially more speech than necessary” to achieve the state’s interests in ensuring public safety, preventing harassment, and combatting obstruction at clinic entrances.  The court offered state and local governments three suggestions, other than generic criminal statutes, to deal with public safety problems at abortion clinics:  passing legislation similar to the federal Freedom of Access to Clinic Entrances Act which prohibits injury, intimidation, or interference toward someone seeking an abortion; criminalizing following and harassing people entering a clinic; and criminalizing obstruction of clinic entrances.  The SLLC’s amicus brief asked the court not to rule in a way that would limit state and local government’s ability to use buffer zones to protect public safety in a variety of contexts.  


In Burwell v. Hobby Lobby the court held 5-4 the Affordable Care Act’s birth control mandate violates the Religious Freedom Restoration Act, as applied to closely held corporations.  That acts provides the federal government “shall not substantially burden a person’s exercise of religion.”  As relevant to state and local governments, the court concluded closely held corporations are “persons” under the act.  The Dictionary Act defines person to include corporations, and the court saw “nothing in RFRA that suggests a congressional intent to depart from the Dictionary Act definition.” 

The Religious Land Use and Institutionalized Persons Act bars state and local governments from enforcing land use regulations that substantially burden “the religious exercise of a person.”  If for-profit corporations are “persons” under Religious Freedom Restoration Act they are also likely “persons” under the religious land use act.  As Ginsburg points out in her dissenting opinion quoting the State and Local Legal Center’s amicus brief, this will have negative consequences for state and local governments:  “(I)t is passing strange to attribute to RLUIPA any purpose to cover entities other than ‘religious assembl[ies] or institution[s].’  That law applies to land-use regulation.  To permit commercial enterprises to challenge zoning and other land-use regulations under RLUIPA would ‘dramatically expand the statute's reach’ and deeply intrude on local prerogatives, contrary to Congress’ intent. Brief for National League of Cities et al. as Amici Curiae 26.”


Carol Anne Bond, upon discovering her closest friend was pregnant with her husband’s child, placed chemicals on her friend’s car door, mailbox, and door knob in the hopes she would develop an uncomfortable rash.  Bond was charged with possessing and using a chemical weapon in violation of the Chemical Weapons Convention Implementation Act, which implements a chemical weapons treaty the United States ratified.  In Bond v. United States the court held that Bond’s conduct did not violate the Act.  Bond asked the court to limit or overrule Missouri v. Holland, which held that if a treaty is valid then a statute implementing it is valid, to the extent the case authorizes “usurpation of traditional state authority.”  A majority of the court declined to do so, ruling only on the much narrower issue described above.  The unanimous opinion relied on “federalism embodied in the Constitution” to resolve the ambiguity in the definition of “chemical weapon” in the Chemical Weapons Convention Implementation Act.  Concluding the use of chemicals in this case is a “chemical weapon” would “alter sensitive federal-state relationships,” “convert an astonishing amount of ‘traditionally local criminal conduct’” into “a matter for federal enforcement,” and “involve a substantial extension of federal police resources.” 


In Lane v. Franks the court held unanimously that the First Amendment protects a public employee who provides truthful sworn testimony, compelled by a subpoena, outside the course of his or her ordinary responsibilities.  Edward Lane, a program director at a public community college, claimed he was fired in retaliation for testifying at a criminal trial that he fired a state legislator who was on his payroll but wasn’t doing any work.  The First Amendment protects public employee speech made as a citizen on a matter of public concern.  In Garcetti v. Ceballos the court held that when public employees speak pursuant to their official job duties they are speaking as employees and not as citizens for First Amendment purposes.  It was undisputed that Lane’s ordinary job duties did not include testifying in court proceedings.  Lane learned about what he spoke about at work but “the mere fact that a citizen's speech concerns information acquired by virtue of his public employment does not transform that speech into employee-rather than citizen-speech. The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties.”  The court did not decide whether the First Amendment protects truthful subpoenaed speech made as part of a public employee’s ordinary job duties.


In Hall v. Florida the court held 5-4 that if a capital defendant’s IQ falls within the standard error measurement for intellectually disabled, the defendant must be allowed to present additional evidence of intellectual disability.  In Atkins v. Virginia, the court held the Eighth Amendment forbade the execution of persons with intellectual disabilities.  Florida’s death penalty statute defines intellectual disability as an IQ test score of 70 or less.  Capital defendant Freddie Lee Hall’s lowest IQ score was 71. The court agreed with Hall that Florida’s rigid 70 or less IQ rule was unconstitutional.  The court noted that the medical community agrees that an IQ of 70 or less indicates intellectual disability but “Florida’'s rule disregards established medical practice in two interrelated ways. It takes an IQ score as final and conclusive evidence of a defendant's intellectual capacity, when experts in the field would consider other evidence. It also relies on a purportedly scientific measurement of the defendant's abilities, his IQ score, while refusing to recognize that the score is, on its own terms, imprecise.”  Instead of using a rigid 70 or less IQ cutoff, states should take into account SEM, which is generally plus or minus 5 points.  So if a capital defendant’s IQ is 75 or less he or she may present additional evidence of intellectual disability.  Hall may require up to 9 states to rewrite their death penalty statute.

In McCutcheon v. FEC the court struck down aggregate limits on individual contributions to candidates for federal office, political parties, and political action committees. Federal law allows individuals to make “aggregate” contributions of $123,200 per two-year election cycle to candidates (up to $48,600) and non-candidate committees (up to $74,600).  Shaun McCutcheon did not object to the $5,200 “base” contribution limit to federal candidates.  He wanted to contribute to more candidates but was prevented from doing so by the aggregate limit.  In a 5-4 opinion the court rejected the FEC’s argument that the aggregate limits are permissible under the First Amendment because they prevent quid pro quo corruption.  “If there is no corruption concern in giving nine candidates up to $5,200 each, it is difficult to understand how a tenth candidate can be regarded as corruptible if given $1,801, and all others corruptible if given a dime.”  About a dozen states provide aggregate limits on campaign contributions to state candidates.  See National Conference of State Legislatures, State Limits on Contributions to Candidates (Oct. 2013),  The constitutionality of these state laws is doubtful in the wake of McCutcheon.


The Clean Air Act’s (CAA) Good Neighbor Provision prohibits upwind states from emitting air pollution in amounts that will contribute significantly to downwind states failing to attain air quality standards.  In EPA v. EME Homer City Generation the lower court concluded that upwind states must be given a chance to allocate their emissions budgets when they are known, before the federal government can do so, and that EPA can only rely on physical contributions to air pollution when determining responsibility for downwind pollution.  The court, in a 6-2 opinion, disagreed.  The court concluded the CAA does not require that states be given a second opportunity to file State Improvement Plans after EPA has informed them of their emissions budgets.  The CAA makes it clear that once EPA has found a state improvement plan inadequate, EPA has a statutory obligation to issue a Federal Improvement Plan.  The Court further concluded that the Good Neighbor Provision does not require EPA to disregard costs and consider only each upwind state's physically proportionate responsibility for each downwind state’s air quality problem.  “EPA’'s cost-effective allocation of emission reductions among upwind States, we hold, is a permissible, workable, and equitable interpretation of the Good Neighbor Provision.”  States and local governments filed on both sides in this case. 


In Utility Air Regulatory Group v. EPA the court held 5-4 that EPA cannot require stationary sources to obtain Clean Air Act permits only because they emit greenhouse gases.  But, the court concluded 7-2, EPA may require “anyway” stationary sources, which have to obtain permits based on their emissions of other pollutants, to comply with “best available control technology” emission standards for greenhouse gases.  The court reasoned that permitting all newly covered stationary sources for greenhouse gas emissions “would place plainly excessive demands on limited governmental resources is alone enough reason for rejecting it.”  EPA’s regulations would increase the number of permits by the millions and the cost of permitting by the billions.  To avoid the result described above, EPA issued the “Tailoring Rule,” which increased the permitting threshold for greenhouse gases from 100 or 250 tons per year to 100,000 tons per year initially.  The court concluded EPA “has no power to ‘tailor’ legislation to bureaucratic policy goals by rewriting unambiguous statutory terms.”  Finally, the Court held if a stationary source is already being regulated because of its emissions of other pollutants it may be subject to best available control technology emission standards for greenhouse gases.  “Even if the text [of the Clean Air Act] were not clear, applying BACT to greenhouse gases is not so disastrously unworkable, and need not result in such a dramatic expansion of agency authority, as to convince us that EPA’s interpretation is unreasonable.” 


In Harris v. Quinn the court held 5-4 that the First Amendment prohibits the collection of an agency fee from home health care providers who do not wish to join or support a union.  Medicaid recipients who would otherwise be institutionalized may hire personal assistants.  In Illinois, the Medicaid recipient is the employer and is responsible for almost all aspects of the employment relationship, but the personal assistant is a state employee for collective bargaining purposes.  A number of personal assistants did not want to join the union or pay it dues.  In Abood v. Detroit Board of Education the court held that state and local government employees who don’t join the union may still be compelled to pay an agency fee to cover the cost of union work related to collective bargaining.  The court refused to extend Abood to personal assistants who aren’t “full-fledged” public employees.  What justifies an agency fee is that unions must promote the interests of members and nonmembers alike, meaning they cannot negotiate higher pay for members or only represent members in grievances.  This justification has little force where a union cannot negotiate pay or represent nonmembers (or members) in grievances.  While the court was highly critical of Abood, it did not overrule it.  This ruling is a setback for personal assistants in other states that followed Illinois lead and allowed them to unionize.


In Marvin M. Brandt Revocable Trust v. United States the court held 8-1 that the United States does not own abandoned railroad rights-of-way it granted in the General Railroad Right-of-Way Act of 1875.  The court ruled against the United States “in large part because it won when it argued the opposite before this Court more than 70 years ago in the case of Great Northern Railway Co. v. United States.”  The United States and the SLLC argued that the court should not read Great Northern so broadly and that a series of federal statutes grant the United States title to abandoned 1875 rights-of-way (unless a state or local government establishes a “public highway,” including a recreational trail, within one year of abandonment).  While the Justices discussed at oral argument the SLLC’s argument that state and local governments have relied on these statutes, the court concluded they don’t apply because “[they] do not tell us whether the United States has an interest in any particular right of way; they simply tell us how any interest the United States might have should be disposed of.”  This case only impacts abandoned 1875 rights-of-way, not all abandoned railroad corridors.  See Rails to Trails Conservancy, How Will the Decision Affect my Local Rail-Trail,    

In Sprint Communications Company v. Jacobs, the court held that a federal court should not have abstained from deciding a case where a state court also was reviewing a decision of the Iowa Utilities Board because the board’s proceedings did not “resemble . . . state enforcement actions” where abstention is appropriate.  Sprint withheld payment of intercarrier access fees for Voice over Internet Protocol calls to an Iowa communications company, Windstream, and filed a complaint with the board asking it to prevent Windstream from discontinuing service to Sprint.  The board ordered Sprint to pay, and Sprint challenged the board’s decision in federal and state courts simultaneously.  The court held unanimously that Younger v. Harris abstention does not apply in this case.  The court reasoned that Younger abstention only applies in three “exceptional circumstances,” including civil enforcement proceedings.  The court’s proceedings in this case did not resemble state enforcement actions because they were not “akin to criminal prosecution” and were not initiated by “the State in its sovereign capacity.”  Instead, Sprint initiated the action and no state authority investigated Sprint or filed a complaint against Sprint.  The SLLC filed an amicus brief in this case.  


In CTS Corp. v. Waldburger the court held 7-2 that the federal Superfund law, the Comprehensive Environmental Response, Compensation, and Liability Act, does not preempt state statutes of repose.  The EPA told the homeowners in this case in 2009 that their well water was contaminated, allegedly by CTS Corporation, which had sold its electronics plant in 1987 that caused the contamination.  The homeowners brought a state-law nuisance claim against CTS.  North Carolina’s statute of repose prevents a defendant from being sued for a tort more than 10 years after the defendant’s last culpable act.  The court held the act’s Section 9658 does not pre-empt statutes of repose.  Section 9658 uses the term “statutes of limitations” four times, when explicitly preempting state statutes of limitations, but it never uses the term “statutes of repose.”  While the court concluded this isn’t dispositive, “other features of the statutory text further support the exclusion of statutes of repose.”  Five states—Alabama, Connecticut, Kansas, Oregon, and North Carolina—have repose periods. Additional state legislatures may adopt them in response to this decision.


In a 5-4 decision in Michigan v. Bay Mills Indian Community the court held that Michigan's suit against the Bay Mills Indian Community to stop the tribe from operating a gaming facility on non-Indian lands is barred by tribal sovereign immunity.  Indian tribes retain historic sovereign immunity and cannot be sued unless Congress abrogates sovereign immunity.  The Indian Game Regulatory Act abrogated sovereign immunity for gaming activity on Indian land that violates a Tribal-State compact. Bay Mills opened a casino about 125 miles from its reservation.  Michigan asked the court to overturn its precedent that held that there is no exception to sovereign immunity for illegal activity occurring outside of Indian lands.  The court refused “for a single, simple reason:  because it is fundamentally Congress’s job, not ours, to determine whether and how to limit tribal immunity.” 

The court pointed out that Michigan has many powers over illegal Indian gaming other than suing a tribe including:  denying a gambling license, seeking an injunction for gambling without a license, injunctive relief against tribal officers for unlawful conduct, and prosecuting those who maintain or frequent an unlawful gambling establishment. And in their compacts states can and have negotiated a waiver of sovereign immunity for gaming outside Indian lands.