Supreme Court Guide: Second Installment

In recent weeks, all eyes have been on the Supreme Court. With the tragic death of conservative jurist Antonin Scalia, the Court is divided and 4-4 split decisions are imminent. This will have a major impact on cases that are currently before the Court.

With so much at stake, I wanted to provide you with a second installment of my Conservative Guide to the Supreme Court.  In addition to the four cases I sent you last Monday, I have selected five more for this week.  Two of these five cases are scheduled for argument this week.  In fact, oral arguments in Wittman v. Personhuballah—which deals with the battle over the boundaries of Virginia's Third Congressional District—are scheduled for today.  

As a former law clerk to Justice Clarence Thomas and an attorney who routinely argues appeals in federal courts, I know how important it is for Virginia to have an effective Attorney General representing our interests in court—including the U.S. Supreme Court.  In the future, I will update you on these nine cases and welcome any feedback that you may have.  Please see below for this week's update and forward it to five of your friends in Virginia so we can ensure that conservatives are staying up to date with the latest Supreme Court developments.  

Wittman v. Personhuballah 
Argument: March 21, 2016

This is a fight over the boundaries of Virginia’s Third Congressional District, which stretches from Richmond to Norfolk.  Democrat Bobby Scott currently holds this seat. 

State legislatures must periodically redraw the boundaries for congressional districts.  They are allowed to take politics into account to preserve the balance of Republicans and Democrats in recent elections.  Although the Constitution generally forbids boundaries based on race, some courts have nevertheless required legislatures to create districts with a majority of racial minorities. 

The General Assembly originally drew District 3 in the 1990s as a majority-minority district to comply with court requirements.  In 2012, the General Assembly created a new election-districts map with three goals: to preserve the historical boundaries of District 3 as much as possible; to reflect the balance of Republican and Democratic representatives from the 2010 elections; and to maintain the influence of minority voters (which courts have required when evaluating new voting maps).

Democrats sued to challenge the 2012 map, accusing the General Assembly of packing minorities into District 3.  Even though the General Assembly created District 3 to comply with court requirements, and even though courts have rejected other maps for diluting minority influence, a panel of three judges struck down the 2012 map and substituted their own.

The Supreme Court will hear argument on March 21.  The liberals on the Court are likely to vote against the plan based on its racial considerations, even though previous court decisions compelled the General Assembly to use race as a factor.  Justice Scalia’s vote will be missed, because a 4-4 tie will affirm the decision rejecting the General Assembly’s map.

Zubik v. Burwell
Argument: March 23, 2016

Zubik is the latest challenge to the birth-control mandate in the Affordable Care Act (Obamacare).  This basic dispute has existed since 2010.  The Obama Administration wants to force health care plans to provide all FDA-approved drugs at low cost.  But many Americans do not want their healthcare plans offering low-cost contraception drugs and drugs that may abort fertilized eggs.  The administrative state thus clashes with religious interests.

In Hobby Lobby in 2014, the Supreme Court ruled 5-4 that certain businesses could opt out.  The Government cannot force religious organizations or private, closely-held businesses to pay for contraceptives and abortifacients as part of their employee healthcare plans.  By one vote, the Court vindicated the religious objections to this aspect of Obamacare.

The current challenge is more complex.  Religious organizations, including an order of nuns called Little Sisters of the Poor, have opted out.  However, the Government does not allow those who opt out to entirely avoid contraceptives and abortifacients.  Instead, when the nuns opt out, the Government steps in to provide the drugs anyway, through the nuns’ healthcare plan.  The nuns do not have to pay for the drugs, but the Government hijacks their health plans to provide them anyway. The nuns naturally object. 

Courts of appeals have disagreed over whether the Religious Freedom Restoration Act permits the Government to do this.  The question for the Supreme Court is about the extent of the burden this places on the nuns’ free exercise of religion.

Even before Justice Scalia’s death, the outcome in this case was far from certain.  Now, it is hard to imagine the nuns winning the necessary five votes.  The four justices who lost in Hobby Lobby—the justices who voted to force businesses to provide contraceptives and abortifacients to their employees—are likely to remain a bloc, causing a 4-4 split at best. 

In this case, a 4-4 split would be particularly devastating.  Because lower courts have disagreed, federal law and religious freedom would be different in Saint Louis than in Philadelphia.  Unfortunately, that pressure suggests that Justice Kennedy may move left, making a dispositive majority to uphold the Government’s actions.  That would be a sad day for the nuns and their free exercise of religion.

United States v. Texas
Argument: Monday, April 18, 2016

President Obama recently created a new immigration program that will grant amnesty to more than four million immigrants who are illegally present within the United States.  If an immigrant obtains amnesty under the program, he will no longer be at risk of deportation. Additionally, immigrants who obtain amnesty under the program are allowed to work in the United States and receive benefits from various governmental programs, such as Medicaid benefits and state drivers licenses.

President Obama’s new immigration program generated controversy for obvious reasons—illegal immigration is one of the most important and divisive political issues in modern American politics. But President Obama’s program has received intense legal scrutiny because it represents a substantial break from the immigration system created by Congress.  Since 1986, Congress has created a complex and detailed scheme that governs how illegal aliens in the United States can obtain amnesty and when they may seek work authorization. President Obama continuously urged Congress to expand existing immigration laws so that the government can address the millions of illegal immigrants in the United States. The President’s pleas, however, fell on deaf ears. This prompted President Obama to create the new program on his own.

The new immigration program was challenged in court, and the lower courts held that President Obama acted unlawfully because his program was designed to skirt existing immigration laws. Before Justice Scalia’s death, many predicted that the Supreme Court would split 5-4 and decide that President Obama acted unlawfully in adopting his new immigration plan. Now, the most likely outcome at the Court is for the Justices to be evenly divided 4-4.  

If the Court does split 4-4, then the lower court ruling will remain unchanged. That means that President Obama would be forbidden from putting his new immigration program into effect because it is inconsistent with the immigration system that Congress has spent more than 30 years crafting.

Birchfield v. North Dakota
Argument: April 20, 2016

Following oral argument in April, the Supreme Court will consider whether a state can criminalize a driver's refusal to take a chemical test to detect alcohol in his or her body (such as tests conducted on a suspect’s breath, blood, or urine) without the police having first obtained a search warrant.  Birchfield is consolidated with two other cases touching on the same question: Bernard v. Minnesota and Beylund v. Levi.

Justice Scalia's passing might make a big difference in these cases.  Many people might not realize that in several recent disputes involving the Fourth Amendment (which generally requires law-enforcement authorities to obtain warrants before searching or arresting people), the Court has not broken along traditional conservative-liberal lines.  Instead, Justice Scalia regularly joined the liberal wing in voting to recognize relatively broad or strict Fourth Amendment rights, whereas Justice Breyer has often sided with conservative Justices. 

Examples include Bailey v. United States (rejecting the detention without an arrest warrant of people who have recently left the immediate vicinity of premises where a search warrant is being executed), Maryland v. King (allowing authorities to take and analyze the DNA of anyone lawfully arrested and held in custody for a serious offense), and Navarette v. California (approving a traffic stop following an anonymous tip). 

Birchfield and its sister cases are a natural next step after another case in this line: Missouri v. McNeely.  In 2013, the Supreme Court held that police cannot automatically order warrantless blood tests in drunk-driving cases simply because alcohol concentration naturally decreases in the bloodstream over time.  Justice Scalia joined Justice Sotomayor’s opinion holding that officers can order such tests only when a true emergency—or “exigency,” to use the legal watchword—exists, without providing any categorical allowances.  Chief Justice Roberts wrote separately, joined by Justices Breyer and Alito, to argue that officers should be able to proceed whenever seeking a warrant would increase the amount of time necessary to obtain a blood sample.  Justice Thomas dissented, contending that a warrant should never be necessary.

Virginia is one of 13 states with laws like those at issue in Birchfield and the cases that the Court will consider alongside it (See Va. Code § 18.2-268.3).  If Justice Scalia's absence leads to a 4-4 split, the lower courts’ opinions upholding the statutes in these particular cases would stand.  Nevertheless, a cloud of doubt would remain over similar laws, and a tie vote would not settle the issue once and for all.  Accordingly, the Court would likely set the cases for reargument or consider the issue again in a future case with a full bench.

McDonnell v. United States
Argument: April 27, 2016

Former Virginia Governor Bob McDonnell was convicted of public corruption after he arranged meetings and attended events for a businessman who gave him and his family gifts and loans.  The Supreme Court will decide whether McDonnell's actions on behalf of the businessman were only routine political courtesies, or whether he performed “official acts.”  The decision turns on how "official acts" are defined, as an official act is what is required for public corruption charges.

In recent terms, the Supreme Court has been skeptical of what it seems to perceive as aggressive use of criminal laws by Obama's Justice Department. The Court has struck down convictions for throwing undersized fish back into the ocean and giving minor skin burns to a romantic rival.  The Court also tossed convictions for corporate executives who had been convicted under federal fraud statutes. 

The primary concern the Justices will face is whether the federal prosecutor’s theory is so broad in this case that it could cover a wide range of political activities—including making introductions and the like. The fear is that such a broad reading would give the federal government the power to pick and choose which politicians to prosecute and which to leave alone. 

Although Justice Scalia was one of the strongest opponents of overreaching prosecutions and had expressed significant concerns about the very statute used to prosecute the Governor, the Court has not always broken down along familiar conservative-liberal lines in criminal cases like this.  It's hard to know what the Court will choose to do in this case.  If the Court ties 4 to 4, then the Court could either let McDonnell’s conviction stand or wait to hear the case again when there are nine justices.

Best regards,

John Adams