Finally Finished the Term's Opinions

It took me all summer and left me with mere weeks before the new term to get through the opinions released in just the last few weeks of the term. A) There were substantially more in the last few weeks than in any preceding them, and B) I had finals. I'm looking forward to reading the opinions by the new guy, currently Judge Roberts (in his last days of confirmation for the Chief Justice seat). And just because it's funny, I'd like to point out that the Court ended its term on the following note:

"It is a sadness that the Court should go so far out of its way to make bad law."

-Justice Antonin (Mr. Sunshine) Scalia

When Should a Statute's Meaning Be Determined by a Commission (and not the Courts)?

National Cable & Telecommunications Assn. v. Brand X Internet Services

This case considers the question as to the extent to which the FCC has jurisdiction to interpret a statute of Congress that left its enactment to the Commission. In this case, the statute that must be interpreted deals with the distinction between internet service providers (ISPs) and “telecommunication carriers,” which are cable companies in this case. For public policy reasons the FCC requires that the latter share their lines with competitors, but not the former. To distinguish the classes the FCC uses the terms “basic service” and “enhanced service.” Basic service is defined as a “pure transmission,” or “transparent transmission” meaning that the only processing done to the transmission is the processing required to convert the message between ordinary language and its electronic form (i.e., Fax). Enhanced service uses “computer processing applications … to act on the content, code, protocol…” etc. The Commission also decided not to classify “non-facilities-based ISPs” any differently than the cable companies.

The 9th Circuit decided that a previous ruling that cable modem service was a “telecommunication service” prohibited it from allowing the ambiguity in the statute to be interpreted by the FCC. The Court here held that the 9th circuit should have applied the standard in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. which held that where a statute is has more than one reasonable reading, and the statute was meant to be enforced by a commission, and that commission applies a reasonable reading, the courts should defer to the commission for reasons of public policy creation. The biggest question here was whether the fact that the cable companies used “basic service” to deliver internet service (including things like DNS, email, News Servers, etc) meant that they were (unambiguously) “offering” a “basic service.” Because the use of the word “offering” can be construed from the perspective of the consumer, to whom the offered service is more than the necessary “transparent transmission,” the Court found that this was one of a few reasonable interpretations of the statute, and the decision should therefore be left to the FCC. In regards to the disparate treatment of cable companies providing internet service, and telephone companies providing internet service, the Court found that because this disparate treatment was not logically mandated by the terms of the statute, the decision should be left to the FCC to change the practice or not. Presumably, if the statute had mandated by its terms that the two be treaded differently the Court would have had to determine if this was valid.

Justice Stevens and Justice Breyer concur with the majority, with Justice Breyer arguing that Justice Scalia’s dissent “has correctly characterized the way in which he, in dissent, characterized the Court’s Mead opinion.”

The dissent disagrees that the cable companies are not internet service providers under the meaning set forth by the FCC, while acknowledging that the meaning of the word “offering” is ambiguous. Using the analogy of a pizza being offered with delivery service, or dogs being offered with a leash, Justice Scalia argues that by providing a “basic service” as part of the ISP package, the cable companies should be treated as any other company offering “basic service.” The dissent also argues that because a physical connection is necessary to use the services of the ISP, it is “inevitable that customers will regard the competing cable-modem service as giving them both computing functionality and the physical pipe.” Going back to the pizzeria example, an in regards to the “non-facilities-based ISPs,” the dissent states that just because some ISPs provide the basic service, it is not necessarily true that all ISPs provide the basic service, just as not all restaurants provide delivery even though all of the components of their food are delivered from out of state though this delivery is a necessary part of the service/product. The dissent also suggests that the precedent under which the majority rules (Mead) was poorly decided, and resulted in, as here, “judicial decisions subject to reversal by Executive officers). The majority earlier responded to this claim by suggesting that worse consequences follow from an alternate ruling (first come, first opportunity creation of law between the courts and the commissions) (see footnote 12; 13 in the dissent). The dissent closes with “It is a sadness that the Court should go so far out of its way to make bad law.”

Does a Display's History Inform its Constitutionality?

McCreary County v. American Civil Liberties Union of Ky.

This case deals with two sets of three successive installations displaying the Ten Commandments. The first set (each display at one of two statehouses) were installed after a resolution was passed by the legislative bodies of the statehouses’ respective counties in Kentucky. After an establishment clause objection a judge ordered the displays removed. The second set of displays were then installed, this time displaying the Ten Commandments along with other historical texts, and along with a description of the purpose of the legislature in the display (public education regarding the role of the Ten Commandments in the development of law). This too was ordered removed, in large part because the previous display’s clear religious purpose revealed the true motives of the legislature. A third set of displays were erected, like the second, only these were not mandated by a resolution of the legislature. The Court here has to decide whether the history of the installations taints the current installations, and whether the current installations violate the Establishment Clause.

In finding that to determine the constitutionality of the displays the development of the display should be taken into account, the majority describes this development. There is some discrepancy between the majority and the minority opinions in what exactly the displays looked like, but the majority focuses on the addition of items to the Ten Commandment displays in the purported interest of context, but which seemed to have been clearly chosen to “highlight their religious element” (i.e. God reference in the Pledge of Allegiance, etc). The majority then applies the Lemon test, considering whether a) the display had a secular purpose b) whether it had the effect of advancing or inhibiting religion and c) whether it created excessive government entanglement with religion (noting that the display could, for example, fail the first, and not fail the test as a whole).

The counties argue that the purpose of the displays are unknowable, an argument that is rejected in light of the volume of inquiries into purpose that the Court undergoes on a regular basis to determine the proper construction of the laws. The Court declines to abandon the purpose test here. In describing the importance of the purpose test the Court, interestingly, allows for the possibility that an enactment have a religious purpose that is hidden well enough to pass scrutiny. The Court also (somewhat) reformulates the purpose test to require that the secular purpose not be secondary to a religious purpose (it had previously only required that the secular purpose not be a “sham”). In rejecting the argument that the history of the displays should not be considered the majority notes that “the world is not made brand new every morning,” and suggests that a “reasonable observer” could be expected to be aware of the history of the displays. The majority also recognizes the difference between displaying the text of the commandments (as is the case here), and a depiction of the two tablets themselves, finding the former to be a religious appeal. The majority then describes the reasons it holds in believing that strict neutrality is a reasonable reading of the requirements of the Establishment Clause, concluding that there is “no common understanding about the limits of the establishment provision” in regards to the Framer’s views.

The dissent is first devoted to describing a view of the Establishment Clause as it was understood by the Framers, and historically, which allowed for the appeal to God publicly by the President or Congress. The dissent points the disparate application of the Lemon test, and justifies its reference to the actions of past politicians as demonstrative of what the Establishment Clause meant. The dissent rejects the argument that an originalist construction prohibits incorporation against the States by the 14th Amendment, since this is not the case for other parts of the Constitution. The dissent also takes issue with the majority’s appeal to a “reasonable observer” because this opens up the possibility of a statute being held unconstitutional based on the misconceptions of imaginary people. The rest is devoted to attacking the majority’s description, and description of the development, of the displays.

Is a Restraining Order a Substantive Entitlement?

Castle Rock v. Gonzales

Ms. Gonzales was granted a restraining order by the state of Colorado against her estranged husband, and limiting his interaction with their three children. On the back of the order was a warning to those to whom it restrained, that violation of the order was a crime, and that they “may be” arrested upon a probable-cause belief that they violated the terms of the order. There was also a statement addressed to law enforcement officials which stated “you shall use every reasonable means to enforce this restraining order,” and which went on to require arrest or the attempt to obtain a warrant upon probable cause to believe that the order was violated. One day the estranged husband showed up and took the kids without warning. Ms. Gonzales called the police, who told her to call back after 10:00. She then found out where they were and asked the police to check on them. She was told to call back. At 10:10 she was told to call back after midnight, after midnight the officers went to dinner instead of enforcing her order. At 3:00 Ms. Gonzales’ estranged husband walked into the police station and started shooting. He had killed the three children, whose bodies were found in his truck. This case deals with Ms. Gonzales’ claim that her 14^th Amendment right to property was violated (right to life, liberty, and property) when the police opted not to enforce her order.

The majority begins by pointing out that the allegation is of a violation of Ms. Gonzales’ procedural right to property, a right which, the Court says, must come from State law because for a benefit to be a right, it must become an entitlement (which comes from State law). The majority then explains that despite the seemingly mandatory language used in the document the police do retain some discretion in the application of the order, a proposition based in history, and seemingly founded on the principle of allowing the police discretion against making frivolous arrests. At any rate, this proposition is accepted as true by the ABA. Because this protection is conditional, the reasoning goes, it cannot be an entitlement. In response to entitlement theories raised by the dissent (specifically that Ms. Gonzales was entitled to an arrest or the pursuance of a warrant) the majority argues that this would be an entitlement to mere procedure, which is insufficient (Souter explains this better*). Finally, the majority asserts that even if there were an entitlement, the property interest “arises incidentally” to a regular function of government, putting it in a lower class of claims than true entitlements.

Justice Souter states that because we would not accept the interference by a private citizen with the contempt power of the court, we cannot infer any “guarantee of a level of protection” as a claim of entitlement. He also notes that “Gonzales does not claim to have a protected liberty interest” (I must say I was wondering why that hadn’t been discussed. *Ultimately, Souter holds that the claim fails because it is a claim for a federal procedural right defined in state process, and without being connected to a substantive interest, there is no federal claim because “[p]rocess is not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement.”

In his dissent, Justice Stevens adopts the view that if an entitlement were created by Colorado law (“the functional equivalent” of a contract between Ms. Gonzales and a private security firm), it would qualify as “property” interest under the 14^th Amendment. He then suggests that it would have bee more proper for the Court to defer to the state court to settle its own law, since property interests are created by state law, especially because the conclusion by the state court, which was different than that here, was at the very least “eminently reasonable.” Justice Stevens then sates that the majority makes three mistakes. First, it does not recognize the wave of statutes actually mandating arrest in domestic violence situations, passed around the country in the 1980s in response to underenforcement, and instead focuses on other statues that fit the majority’s purpose; second, that this order was of a relatively small class that was created with the specific purpose of mandating arrest; and third, Justice Stevens takes issue with the assertion that the property interest (if it exists) in police enforcement is of a lower caliber than of any other interest.

It seems clear at this point that if the words used actually mandated arrest there would be (at least) an almost infinitely better chance that the court would have recognized an entitlement. The words in controversy are “A NOTICE TO LAW ENFORCEMENT OFFICIALS,” “YOU SHALL USE EVERY REASONABLE MEANS TO ENFORCE THIS RESTRAINING ORDER. YOU SHALL ARREST, OR , IF AN ARREST WOULD BE IMPRACTICAL UNDER THE CIRCUMSTANCES, SEEK A WARRANT FOR THE ARREST OF THE RESTRAINED PERSON WHEN YOU HAVE INFORMATION AMMOUNTING TO PROBABLE CAUSE THAT THE RESTRAINED PERSON HAS VIOLATED OR ATTEMPTED TO VIOLATE ANY PROVISION OF THIS ORDER…” (Caps in original). This case demonstrates exactly how much weight “original intent” is given, and how subjectively is has been interpreted. Were it not for this line of thought the words would be given a reasonable reading and that would be the end of the inquiry. I’m not saying the idea of original intent is wrong by any means, but that for it to be an effective interpretive tool it must be refined so that everyone can agree on what matters and what doesn’t (the basis of the difference between Stevens and Rehnquist and/or Souter in this case).

Can Satates Display the 10 Commandments on their Statehouse Lawn?

Van Orden v. Perry

This case deals with the constitutionality of displaying a 6 foot by 3.5 foot plaque of the ten commandments, donated by a benevolent association, and which has been displayed in front of the State-house for 40 years (along with 16 other unassociated installations on a 20 acre area of land.)

After a brief history of Establishment Clause cases, and references to our nation's history of natural rights, the Court asserts that the Lemon test is not "useful in dealing with the sort of passive monument that Texas has erected." Instead the Court chooses to consider the nature of the monument, and the history of the Nation. Among the religious references are a Congressional resolution in 1789 referring to God, a proclamation by President Washington referring to Him and His, and even (...) some previous opinions by, and adornments in, the Court itself. I swear, I was not reading ahead, I thought this was an introduction to a reasoned argument. That’s it. The majority surveys previous cases and then flatly asserts that the monument has a dual significance, and that it does not violate the Establishment Clause (all in about 4 or 5 sentences). The only way I can describe this opinion is "disappointing."

Justice Scalia then states that he would "prefer to reach the same result by adopting an Establishment Clause jurisprudence that is in accord with our Nation's past and present practices, and that can be consistently applied." The very next sentence states what that jurisprudence would be "there is nothing unconstitutional in a State’s favoring religion generally, honoring God through public prayer and acknowledgment, or, in a nonproselytizing manner, venerating the Ten Commandments," a statement he made in a previous dissent. This paragraph is longer than his opinion.

Justice Thomas opens by arguing that the Establishment Clause should not be incorporated against the states (via the 14th Amendment). He then proposes returning to the "original meaning of the word 'establishment,'" which he states was an action rather than a description. Justice Thomas goes on to suggest that in Establishment Clause cases the "litigants are mere '[p]assersby ... free to ignore [such symbols or signs], or event to turn their backs, just as they are free to do when they disagree with any other form of government speech.'" More interestingly, he attacks Justice O'Connor's proposal for Establishment Clause jurisprudence by arguing that it is disingenuous to find no religious significance in terms or symbols "by virtue of [their] ubiquity or rote ceremonial invocation." Finally, he argues that the Court has left Establishment Clause Jurisprudence up to "judicial predilections," something this case's opinions carry in spades.

Justice Bryer suggests focusing on how the text of the commandments is used in this context. To this end Justice Bryer emphasizes that the group that donated the monument was primarily concerned with its role in shaping civic morality, and the state's interest in the same message. Justice Bryer points to the monument's longevity as a societal identification with this purpose. He then states in plain terms that this monument does not violate the Lemon test, while arguing that this test is not determinative. The ultimate conclusion is that "where the Establishment Clause is at issue, we must “distinguish between real threat and mere shadow.” Here, we have only the shadow." (Quoting Schempp)

Justice Stevens states for the dissent that the display of the commandments implies Texas' endorsement of the commandments, and the display offers the observer nothing with which to conclude otherwise. Justice Stevens goes on to argue that original project was based on a religious motivation, to make know the Ten Commandments to those that have not received The Word. Justice Stevens then suggests that the "secular by-products that are intended consequences of religious instruction ... are not the type of 'secular' purposes that justify government promulgation of sacred religious messages." The minority opinion then argues that because there is an ongoing debate over the interpretation of the ten commandments it is an unquestionable violation for the State to take sides by choosing a particular version of the commandments to endorse, (though Justice Stevens does not regard this argument as being the only violation at issue). The opinion also states that the history presented by the majority is misleading and that, for example, the free exercise of religion was, before the Philadelphia Convention, meant only to apply to the free exercise of Christian religion. Finally, in response to Justice Thomas, Justice Stevens suggest that if the Establishment Clause were limited to actual coercion it would be redundant in relation to the compelled speech doctrine.

Justice Souter focuses on the fact that the first commandment is stated as "I AM the LORD thy God," and then asserts that if the display were accompanied by some historical reference it would be less constitutionally objectionable. Justice Souter also states that because 17 monuments take up 20 acres anyone seeing one would take each on its own terms. The opinion then tries to relate the case to Stone which the majority stated was distinguished because this case is a more passive invocation of the commandments. "If neutrality in religion means something, any citizen should be able to visit that civic home without having to confront religious expressions clearly meant to convey an official religious position that may be at odds with his own religion, or with rejection of religion." Finally, Justice Souter argues that there is nothing persuasive about the fact that there had been no contest over the display for 40 years because "suing a state over religion puts nothing in a plaintiff's pocket and can take a great deal out."

Sorry it was so long, but there were so many opinions. I think I would go with Justice O'Connor's opinion. There is nothing in it with which I do not agree. Seriously though, this court has GOT to come up with some kind of test that will last longer than a couple of terms.