By Fraser Perkins and Ann Nye —
The Palos Verdes Democratic Club met on August 15, 2021, to hear Superior Court Judge Tom Long’s commentary on UCI (University of California Irvine) Law’s July 6 annual review of the 2020-2021 Supreme Court cases. Carol Moeller, our program moderator, introduced Judge Long and thanked him for his long arc of generosity and commitment to our club.
Editor’s Note: To help the reader delve more deeply into the details of the presentation, we’ve annotated the time (e.g. 1:30 is 1 minute 30 seconds) that the discussion occurs in the video. The video is provided at the end of this article.
02:10 Erwin Chemerinsky (EC): Brnovich v. Democratic National Committee
Editor’s Note: Erwin Chemerinsky serves as the Dean of the UC Berkeley School of Law. He has written several books, authored 200 law review articles, argued before the Supreme Court, and helped draft the Constitution of Belarus.
Professor Chemerinsky prefaced his remarks on this case by stating, the biggest change of the recently concluded Supreme Court session was the death of Justice Ruth Bader Ginsburg on September 18, 2020, followed by the confirmation of her replacement, Justice Amy Coney Barrett on October 26, 2020. During this session the Court heard 54 cases – the second fewest number since 1862. There were 12 six to three decisions, and 6 five to four decisions. In none of the five to four decisions were the “liberal” justices in the majority.
Professor Chemerinsky thought the most important of the six to three decisions was the Brnovich v. Democratic National Committee, which involved Section 2 of the Voting Rights Act of 1965. Professor Chemerinsky stated, “I regard the Voting Rights Act of 1965 as one of the most important statutes adopted during my lifetime.” Section 2 required jurisdictions with a history of race discrimination to get preclearance from the Attorney General or a three-member judge court in Washington, D.C. before making major voting changes in their election system. The landmark Shelby v. Holder Case, decided in 2013, essentially nullified preclearance. In Justice Kagan’s dissent on the Brnovich Case, she noted that there has been a 2.5% decrease in participation by voters of color since 2013, reversing a trend of increasing participation since 1965.
The Court stressed that a second provision of Section 2 offered protection – there cannot be election mechanisms at the state or local level that discriminate because of race. In a 1980 case brought by the City of Mobile, the Supreme Court ruled that a violation of this provision required that an intent to discriminate must be shown. Congress responded in 1982 by passing a law saying a violation could be declared by simply demonstrating a racially discriminatory effect. This is the crux of the Brnovich Case. It involved two provisions of Arizona law which required a person to vote in their precinct and limited collection of ballots to family members. The Ninth Circuit, by a seven to four vote, ruled this violated Section 2 of the Voting Rights Act. On July 1, by a six to three decision, the Supreme Court reversed the lower court ruling. Writing for the majority, Justice Alito said that prior violations of Section 2 involved vote dilution when districting affected minority voting. He held that the Arizona laws dealt with the time, place and manner in which local elections are held. He continued by noting that the totality of the circumstances must be considered and listed five considerations:
- The extent of the burden
- The extent the rules depart from the practices followed since 1982
- The scale of the discrimination
- The opportunities for voting
- The strength of the state’s interest
Justice Alito continued by noting that preventing election fraud is an important state issue. Justice Kagan vigorously dissented by noting that none of these criteria were in Section 2 of the Voting Rights Act. Professor Chemerinsky said this matters because many states have enacted legislation restricting voting. Though challenges will be made, it will be much more difficult to demonstrate racial discrimination in voting.
According to Professor Chemerinsky, there are two narratives about voting in the United States: Republicans maintain that voting fraud is a major problem and Democrats counter by stating that the real issue is voter disenfranchisement. He concluded by saying that the Supreme Court, with a majority of justices appointed by Republicans, has embraced the Republican narrative.
10:15 Melissa Murray (MM): Fulton v. City of Philadelphia
Editor’s Note: Melissa Murray, the Frederick I. and Grace Stokes Professor of Law at the NYU Law School, is a leading expert in family law and reproductive rights.
Professor Murray thought Fulton v. City of Philadelphia, “was one of the most important if not the most important case of the term.” In this case, the Court dealt with individual rights and religious freedom. It built on an earlier case, Masterpiece Cakeshop v. Colorado, in which the Court held by a 7-2 vote that Colorado did not employ religious neutrality. The Court found that a lower court had shown hostility toward religious believers.
The City of Philadelphia outsources foster care to several community organizations. It refused to contract with Catholic Social Services (CSS) for foster care placement, unless CSS agreed to allow same sex couples to serve as foster parents. CSS refused. Chief Justice Roberts wrote the majority opinion in the unanimous decision, which held that the City of Philadelphia violated the free exercise clause of the first amendment. Even though this ruling was praised for its unanimity, it’s Professor Murray’s view that this decision “moves the court further to the right” and “towards a more muscular approach to free exercise [of religious beliefs].”
20:50 Paul Clement (PC): Mahanoy Area School District v. B.L.
Editor’s Note: Paul Clement is a former United States Solicitor. He is a Distinguished Lecturer in Law at Georgetown and a partner at Kirkland & Ellis. He was an editor of the Harvard Law Review.
Professor Clement thought this was one of the important cases of this term, “but also one of the most fun to talk about and think about.” The case of the cursing cheerleader, Mahanoy Area School District v. B.L. involved the free speech rights of students in public schools. The initials B.L. reflects this is a case of a minor. It rested on the foundational 1969 landmark case of Tinker v. De Moines, which cemented a student’s right to free speech in public schools. The Mahanoy case dealt with free speech of students outside of a public school.
A disgruntled student failed to make the varsity cheer squad and vented her unhappiness by making obscene gestures on Snapchat, outside of her high school. Though ephemeral, these images were widely circulated throughout her school community. She was suspended from the cheer squad, though later reinstated. By a vote of 8-1, the Supreme Court agreed with the cheerleader – her one-year suspension from the cheerleading team violated her right to free speech. Professor Clement felt the Court carved out the school board concerns about bullying and cheating from its decision. He cited this case as an example of the court taking “a very pro free speech position.”
30:00 Q & A With Judge Tom Long
Can the Republican voter suppression laws be challenged in the courts?
“It’s going to be significantly more difficult.” One must show a severe impact or an intent to discriminate in order to prevail. Judge Long said “for example, in Arizona, the taking away of third parties to deliver ballots has a really severe impact on Native American communities.”
Judge Long expressed concerns and disagreements about both the Fulton and Mahanoy decisions, which he felt were “opening up a Pandora’s Box.” In the Fulton decision, the Court is saying, “The City of Philadelphia must bend to the religious preferences of the agencies you contract with.” His concern was that religious organizations will gain a right to perform government functions and leaves open the question of state-sponsored religious institutions. In Mahanoy, the Court failed to deal with the issue that off-campus postings spread quickly on campus through social media. This undermines the traditional view that while students are in session, schools act as parent substitutes – the doctrine of in loco parentis.
How easy will it be to overturn election results?
Judges across the spectrum, both liberal and conservative, rejected election appeals due to lack of evidence. While procedurally it may be easier to appeal results, the Evidence Code protects against baseless appeals.
Commenting further on the CSS Case, Judge Long posed this question, “Are we going to allow government functions to be controlled by religious institutions?”
43:45 UCI Law’s Panel Discussion: John Roberts’ Court
Last year’s UCI Law panel agreed it was the John Roberts’ Court. Moderator Rick Hassen (RH) asked the panel, “Is he [John Roberts] still the ideological center of the Court?”
EC Roberts is no longer the ideologic center of the court; Justice Kavanaugh is. He was in the majority 97% of the time.
MM “Roberts is no longer needed to form a majority.”
RH Do you think of the Court as being careful in the cases it takes?
PC Too early to tell as Justice Barrett has been on the Court for less than a year.
51:50 Stare decisis – Respect for Existing Law
Editor’s Note: “Stare decisis” is Latin for “to stand by things decided.” It is a legal doctrine that obligates courts to follow historical cases when making a ruling on a similar case.
MM There may be less deference to stare decisis, like with abortion rights.
EC This Court has shown no hesitancy to overturn prior decisions. “Conservatives, with their majority, have in mind what they want to overrule.”
56:36 Judge Tom Long Commentary
Stare decisis is the doctrine of the court following former decisions and which we should go into more detail. Judge Long gave an example about a basic constitutional question, “Do criminal jury cases need to be unanimous?” At the State level, the answer is No or Maybe, but at the Federal level, the answer is Yes. Fragmented decisions by the Court on this jury issue undermines the doctrine of stare decisis.
Judge Long agreed with Professor Chemerinsky, that probably Kavanaugh or Gorsuch may be the ideological center of the Court.
1:02:20 Can you define Cert?
Editor’s Note: Cert is a writ or order by which a higher court reviews a decision of a lower court. If a court agrees to hear a case, it has granted certiorari or “cert”.
Judge Long explained, “Cert stands for certiorari which means the Supreme Court does not have to hear a case unless it wants to.”
Judge Long said it is hard for a case to be heard by the Supreme Court, as it requires four justices out of nine to agree. In the California Supreme Court, it is even harder, since it requires four justices out of seven to agree.
It’s a misnomer, says Judge Long, that Justice Roberts controls the docket. You need four (out of nine) justices to agree on which cases are heard. If the Chief Justice is in the majority, he designates who writes the majority opinion. If he is in the minority, he designates who writes the dissenting opinion, but the senior justice in the majority designates who writes the majority opinion. Acknowledging that this may be “a cynical opinion,” Judge Long thought the conservative shift in the court may weaken the Chief Justice’s influence and leave open the possibility that the Chief Justice may vote in close cases with the majority in order to designate who writes the majority decision.
How come the Ninth Circuit Court of Appeals cases get heard by the Supreme Court?
The Ninth Circuit is an intermediate court between Federal District Court and the Supreme Court. It is composed of 24 justices who are assigned cases; three per case. As more conservative justices have been appointed by Trump to the Ninth Circuit over the past four years, its liberal majority has been weakened. Judge Long said, “dissenting opinions on the Ninth Circuit could trigger the Supreme Court to take a Ninth Circuit case and reverse it.” He said he “wouldn’t be surprised if the Supreme Court granted certiorari of Ninth Circuit decisions and if the majority of them had strong dissent from conservative judges.” Judge Long provided the analogy, “Think of the conservative judges on the Ninth Circuit as the farm team for the conservative justices of the Supreme Court.”
1:11:11 UCI Law’s Panel Discussion – Next Supreme Court Session
There are three major issues which will, or are likely to, emerge next year, and may be consequential for the 2022 midterm election:
- The right to bear arms outside of one’s home
- Reproductive rights and abortion
- Affirmative action
1:26:45 Judge Tom Long Commentary
Will the Supreme Court overturn Roe v. Wade or reduce protections for women in its next session?
“It will do one of those two things and possibly both.” The Supreme Court doesn’t need to expressly overturn Roe v. Wade. Because of limited access to abortion in many areas, Roe is, “already a dead letter in some rural states, where there are no or few abortion providers.”
How do the Supreme Court justices vote?
Judge Long said he is not aware of the voting order justices follow (like the junior justices voting first), but they do discuss the cases in conference. Votes can change as the opinions are written and discussed. “It’s a very complicated coalition building process, which made Roberts pretty effective until now.” With a conservative majority it is not clear if the Chief Justice will have the same influence. As time goes on, we’ll find out who is the best coalition builder.
Judge Long was intrigued by the comments by Paul Clement about the 2nd amendment, where he said he’ll be co-counsel on a case of this type in front of the Supreme Court. What will he argue to get more arms in the hands of “a well regulated militia”?
In terms of affirmative action, Judge Long agreed with Chermerinsky that the Court may wait for a case involving a public university, rather than a private institution such as Harvard.
1:32:10 Concluding Remarks of the UCI Law’s Panelists
RH What is the Impact of grassroots action on the Supreme Court?
EC The five conservative justices have strong ideological views and are unlikely to be influenced by generalized views.
RH Talking about this in the context of Justice Breyer, “I wrote an article about why Justice Breyer should retire and Erwin wrote an article and signed a letter. Is this counterproductive or does it require talking to Justice Breyer’s therapist?” Breyer feels these calls for him to retire are politicizing the court.
RH What are your opinions on the Supreme Court Caseload?
EC The Roberts Court is hearing far too few cases. Roberts’ goal at his confirmation in 2005 was 100 cases/year, yet the most his court has heard is 85; now it’s 54/year. In terms of the two COVID related cases, one against Governor Cuomo and the other against Governor Newsom, the court 5 to 4 ruled against governor’s orders and sided with the religious groups, saying “religion must be treated as favorably as the most leniently regulated secular activity.” “It’s like giving religion most favorite nation treatment.”
1:40:14 Judge Tom Long Closing Remarks
Judge Long said he was pleased, like Erwin Chemerinsky, that the Supreme Court stayed out of the 2020 presidential election litigation and allowed the lower courts to function as designed. Though he admitted, “I didn’t think there was a significant federal question in Bush vs Gore, either. … I was wrong.”
In regards to a question about the freedom to not take a COVID vaccine, Judge Long responded, “Do individual freedoms articulated in the constitution trump the social good in every case?” The Court’s decisions are a reflection of the justices’ political values; namely, is the objective of our society to provide the greatest freedom, or for society to provide the greatest good for the greatest number? According to Judge Long, this spectrum of political values will influence the outcome of their decisions.
What do you think of expanding the Supreme Court by four judges?
There is a rationale to be made for expanding the Supreme Court from nine to thirteen. Every Supreme Court Justice oversees one circuit court and currently there are 13 such circuits. As a result, some justices oversee more than one circuit court. Expansion is unlikely as “one person’s packing is somebody else’s logical expansion.”
Should Justice Breyer retire?
“There are six other Justices I would like to retire before Justice Breyer,” said Judge Long, and he thought Breyer should be mindful of his mortality and reconsider retirement. “It’s disappointing that he lacks the judgment to understand the ramifications of that risk and to set aside his own sense of personal privilege and make a decision that’s in the best interest of the greatest number of people.”
Carol Moeller concluded the meeting by thanking Judge Long for his commentary and time.