Diary

Confusing "Consensus" at the Supreme Court

This week, the Supreme Court announced decisions in four cases with about 20 left to go.  Looking at these decisions, one was unanimous, one was 8-1 and the other two were 7-2 decisions.  One think there was rather broad agreement on the cases- that ideological differences were laid aside in cases involving free speech, employment discrimination and immigration deportations.  But looking deeper, one can make another conclusion: despite the apparent unanimity, a lot was left undecided.

A decision in the Elonis vs. United States case was much anticipated.  This was the so-called “Facebook threat” case from the Third Circuit.  To recap, Mr. Elonis had made some unsavory comments on Facebook against his estranged wife, FBI agents and his desires to take out a kindergarten class.  Elonis argued that these were the rantings of a would-be rapper and a form of “therapy” in dealing with the break up of a relationship.  To be guilty of the crime he must have communicated a threat over some form of telecommunications.  For this he was found guilty.

However, in a 7-2 decision authored by Roberts, the conviction was overturned and the case remanded to the Third Circuit to reconsider based on what can best be described as an ambiguous legal standard.  Invoking a legal dictum that “wrongdoing must be conscious to be illegal,” the decision basically now forces prosecutors and eventually juries to get “inside the head” of the accused in order to reach a guilty verdict.  Mere negligence is not a reason to convict a person.

In a dissent, Justice Alito argued that the Court should have used a different standard- that of being reckless.  In this view, if the person engaged in behavior- verbal or otherwise- that a person could or should have known could possibly be illegal, yet nevertheless engaged in that behavior or speech, then they could be found guilty.  In that instance, if his preferred standard was applied, Elonis would be guilty.  Thomas- the other dissenter- pointed to the clear wording of the statute in question and found that the conviction met all the required elements.

Roberts brushed aside the Alito rationale not because it was badly reasoned or because it was a bad solution, but because the rationale was never brought up on appeal and the Supreme Court simply could ignore it now.  Most importantly, however, Roberts sidestepped the First Amendment Free Speech issue altogether.  Because the rationale for the decision was based on the criminal state of mind of Elonis at the time he posted the comments- something prosecutors must now prove and a jury must analyze- there was simply no reason to reach the Free Speech issue.

In the practical sense, prosecutions of this nature will likely continue, but it will prove more difficult for prosecutors to make their case, and it places an additional analytical pressure on juries.  As both Thomas and Alito note, this is a partial victory for Elonis, but hardly one that settles the issue and there will likely be more cases like this in the future.

The second case was EEOC vs. Abercrombie and Fitch which involved a Muslim denied employment because she wore a traditional head scarf to a job interview where she was not hired to perform.  The store has a dress policy against caps and such in order to portray a “preppie” look.  The store defended their action stating they were never offered the opportunity to grant an exception to their policy in order to accommodate her religious beliefs.

It does not matter, ruled the Supreme Court in an 8-1 decision authored by Scalia.  The store’s policy was, in fact, neutral when it came to religion.  It did not favor the dress, appearance or practices of one religion over any other religion.  The lower court ruling, that invalidated a $20,000 award to the woman in this case, appeared to require that she should have asked for a religious exemption to the work rule.  That is, the Tenth Circuit placed the burden on the job applicant.  Basically if an employer has any inkling that a religious practice may be involved, the burden now shifts to the employer to offer the accommodation even if the applicant does not explicitly ask for one.  A footnote left open the possibility an employer may be liable for religious discrimination even if the employer was completely ignorant.  That brought a rebuke from Alito who wrote a separate concurring opinion disagreeing with the footnote.

The other case- Mellouli vs. Lynch (formerly Holder)- reversed the deportation of a Tunisian national for his drug paraphernalia possession conviction.  The “paraphernalia” in this case was a sock used to carry the drug Adderall.  It sounds silly, but a man was deported and separated from his American wife.  Sometimes silliness has serious consequences.  This may be a one-off case because the government did not specify the controlled substance in the charging document- only the sock (paraphernalia).

This case was one of statutory interpretation based on the words “relating to” in immigration laws dealing with the deportation of drug offenders.  Statutory interpretation necessarily involves Chevron deference which should have bolstered the government’s case.  But Justice Ginsburg said the departure from logic was so sweeping creating a situation where the alien could not be deported for possession of the controlled substance, but for the sock used to contain the substance.  That logical incongruence negated any Chevron deference.

What this case clearly illustrates is that the Roberts Court is not going to rubber stamp every administration deportation effort, especially if the deportation order involves low levels of drugs in the original conviction.  The case also will force prosecutors and the government to be more careful in the charging documents.  Ironically, if they had specified that the drug in question was Adderall and that Adderall is controlled by state (Kansas) law, the government’s case would have been bolstered at an earlier stage and the deportation order would have likely stood.

Thomas and Alito dissented on the actual text of the statute in question.  Specifically, they argued that the words “relating to” were enough to suffice to apply the Chevron deference and they would have allowed the deportation to stand.  For those who think they can read tea leaves, this case in no way should be used to divine a decision in the Burwell Obamacare case which also involves statutory interpretation and Chevron deference.  The reason was cited above: the Court’s reluctance to rubber stamp deportations based on low level drug possessions.