In part 1, I discussed some criminal law and separation of powers decisions of the Court in the 2014-2015 term. In this entry, I will take a look at some free speech and civil rights cases (and two tax cases that are overblown). First, the two tax cases. In Wynne vs. Comptroller of Maryland , this was a 5-4 decision that ruled the Maryland taxing scheme illegal since it violated the “Dormant commerce clause” since it essentially double taxed people on out-of-state income. However, there were huges differences in the dissent with Scalia and Thomas arguing that there is no such thing as the dormant commerce clause while Ginsburg and Kagan, although accepting its premise, arguing there was no violation. In practical terms, this decision affected only Maryland tax payers. Ironically, if all other states had adopted a taxing scheme like Maryland’s, this case would never see the light of day. The other taxing case involved Colorado’s attempt to collect information for a use tax for online sales of Colorado resudents by having retailers report sales to the state. In a decision by Thomas, the Court got around a definitive statement by arguing that the injunction against this statute withstood scrutiny because it was a reporting requirement, not a tax assessment, levy, or collection. There was a disturbing concurrence from Kennedy arguing that a 1992 decision should be overturned since online commerce has increased from a $180 million venture in 1992 to over $3 trillion today and that states are losing out on needed revenue as a result.
There were four key free speech cases this term. In the Elonis Facebook threat case, Roberts (in typical Roberts fashion) avoided the larger issue and created confusion. He wrote that mere negligence in making online comments was not enough to justify guilt, but left unsaid was what was required. Alito argued for a recklessness standard- the person likely realized the comments were threatening, but made them nevertheless. Cases like this are likely to continue, but what standards courts are to use is left undecided.
In Reed vs. Town of Gilbert, Thomas stated that when a law addresses different forms of expression and treats them differently it serves as a regulation of that message which then violates the First Amendment. He further argued that this differing treatment be analyzed using strict scrutiny. A separate opinion by Alito took strides to show that government can still regulate signs. The Kagan and Breyer concurrences came near to dissents (the decision was officially 9-0). Kagan feared that under this new standard, practically any sign law would have to reviewed by courts. Ironically, it was Thomas who was the deciding vote on the Texas license plate decision which upheld the right of Texas to ban display of the Confederate flag on Texas specialty license plates. In effect, the Court ruled that since the plates were the property of the government, it was government speech and that as such, there was no censorship issue since the state can put, allow or keep off any message on a license plate without violating the First Amendment. Thus, New York can ban pro-life statements while other states, if they choose, can allow residents to purchase a license plate with a pro-life message. Thomas, who is no stranger to written opinions (he penned 11 concurrences and 19 dissents this term alone) was surprisingly quiet on this case.
The final free speech case came out of Florida and involved a candidate for judge lending her name to a campaign contribution solicitation letter. Roberts wrote the controlling plurality decision. The signature in question violated the Florida Code of Judicial Conduct and not an official law. But, that is not what characterized this decision. Instead, it was the elevation of the judiiciary when it came to campaign finance. In effect, this is a carve out for judges. The dissent noted that the very reasoning put forth by Roberts- to maintain the integrity of judges- can be used with elections in other branches of government. Roberts took pains to note this was not undercutting Citizens United, and relied more heavvily on the Massey case. But, that case involved recusal, not contributions. In effect, Roberts was saying there was something inherently more important when it comes to elected judges rather than other elected offices.
In the area of civil rights, the biggest case was Obergfell which was discussed in another entry. There was the obvious case of a Muslim prisoner’s beard where they ruled that the state violated his rights under the Religious Freedom Restoration Act and the EEOC was affirmed in the Abercrombie decision involving a Muslim head scarf. Stay tuned as these decisions may affect how religious rights run headlong into the implementation of gay marriage laws. Likewise, the Young case against UPS over pregnancy and accommodation is one, I believe, should be supported.
Which brings me to the two redistricting cases. In the Arizona case, the Court ruled that independent redistricting commissions were constitutional despite the definition of the word “legislature” in the Elections Clause. Described as a victory for direct democracy- a notion rejected by our Framers except in very specific instances- the majority redefined the word “legislature” to mean “the people” as noted in the Arizona constitution. The dissent was more focused (and biting) as it cited numerous Court decisions where the majority frowned on referendums and initiatives in a variety of areas in the past.
The final case is the Alabama redistricting case. In a 5-4 decision, the case was sent back to the lower courts with directions to analyze the 2010 redistricting effort for its effect on minority voters on a district-by-district basis rather than on a statewide basis. Under the existing plan, the legislature directed the consultants to maintain the current number of minority-majority districts and that the population deviation between districts could not exceed 2%. The result was the movement of minority populations into certain districts to abide by the guidelines. In fact, minorities gained one district in the effort. However, this had the effect of diluting minority voting strength in the remaining districts. It may be, upon remand, a new legislative map may be developed that largely reflects the existing map and we may not have seen the end of this case before the Supreme Court (three cases- Horne, Johnson, and Fisher have made or will make a second round through the Supreme Court in recent terms). The practical effect is that Alabama may preempt further court review that will eliminate some racial gerrymanders but retain even stronger political gerrymanders (the former are illegal, the latter legal). In the short term, this decision gives the civil rights community a new tool in fighting racial gerrymanders since states cannot now use cover of the Voting Rights Act to enact them.
Most importantly in this area is a case taken for argument and decision in the 2015-16 term that could have profound effects on redistricting in the future. That case asks whether gross population or voter eligible population should be counted to satisfy the “one man, one vote” doctrine.
In the final part of a look back at this term, I will look at whether this Court is drifting to the Left and if John Roberts is particularly headed in that direction.