Review Session

Video.

You can reach me via email or via questions on the blog until 10:30 tomorrow evening (Tuesday). If you would like a Zoom meeting, email me.

Good luck.

Review and Exam Information (Updated and Corrected)

The Q&A session will be at 7 p.m. on Monday, November 30 (tomorrow evening). Use the regular Zoom link.

If you have questions outside of the session, you can email me or post them to the blog. If you would like a Zoom meeting, email me and we can set something up.

The exam will consist of thirteen (13) short-answer questions, worth ten (10) points each, for a total of 130 points towards your final grade. You can write up to 250 words on each question.

You will access the exam beginning at 9 a.m. on Wednesday, on the blog; the exam is due by 9 a.m. on Friday, at the Constitutional Law-C TWEN page.

The full exam instructions are after the break. These will be attached to the exam itself. 

Please submit your exam as a Word document rather than as a PDF.

Final class

Video--with transcript, without transcript. 

Q&A review session on 7 p.m. Monday, November 30, usual Zoom number. It is all Q&A, with no prepared stuff from me. We will stay for as long as you all have questions. I am available by Zoom or email outside of those times. You also can post questions to the blog.

The exam runs from 9 a.m. Wednesday, December 2 through 9 a.m. Friday, December 4. You will download the exam from here and return it to the Constitutional Law-C TWEN page, for which you must register. The exam will include detailed instructions; please follow.

Reax Papers for the final 3 panels (## 18, 19, and 20) are due to Connie Giffuni (cgiffuni@fiu.edu) by 9 a.m. Wednesday, December 2.

Thank you for a great semester.

Equal Protection in the election lawsuits

Here is the decision from the Middle District of Pennsylvania that everyone has been talking about. The introduction is pp. 1-11 and the equal protection analysis begins on p.23 (in between is a discussion of standing, which you can ignore for our purpose). Note 1) how the court describes what is necessary under the equal protection--the problem is not classification but treating similarly situated persons differently; 2) the discussion of leveling-up and leveling down for equal protection remedies; and 3) the question of standard of scrutiny in election cases (which we will discuss on Monday).

Note, as well, the difference. between a substantive due process violation and an equal protection violation. SDP argues that government cannot do something or stop me from doing something; EP argues that in doing something that it might otherwise be able to do, government is treating me differently. This is why Holmes described it as a last resort. So in this case: A due process claim is that election officials prevented observers from being close enough to observe. An equal protection claim is that there is no right to observe, but officials let Biden observers closer than Trump observers.

On that note: What is the difference between a claim for a violation of fundamental right and a claim for an equal protection violation touching on a fundamental right?

For Monday

Thursday video--without transcript, with transcript. Reax Papers for Panels ## 16 and 17 due at 7 p.m. Monday. Reax Papers for panel # 18 (Gender) and the two remaining panels will be due at 9 a.m. Wednesday, December 2 (before you download your exam).

We move to Other Discrimination (Panel # 19) and Fundamental Rights (Panel # 20). This will get into questions of tiers of scrutiny beyond race (strict) and gender (intermediate) and what we have referred to as "rational basis with teeth." Consider:

    • Note the common theme on these being not to apply heightened or strict scrutiny, but to nevertheless find laws invalid--how is the Court able to do that?
    • How can sexual-orientation discrimination be characterized as gender discrimination? Consider this on the issue of same-sex marriage.

    • What rights are "fundamental" and how does that affect the equal protection analysis?

    • What is the difference between a claim for a violation of fundamental right and a claim for an equal protection violation touching on a fundamental right?

Bad Legal Takes: Tiers of Scrutiny

What is wrong with this entire picture?

Return of Papers

If you have not received your graded papers back, please email me with your panel number.

For Thursday

Monday audio--with transcript, without transcript. Reax Papers for Panels ## 14 and 15 due at 7 p.m. Thursday. Reax Papers for Panels ## 16 (Schools) and 17 (De Jure) due at 7 p.m. next Monday.

This episode of the We the People Podcast features a history of women's rights through the 19th century and up to the 19th Amendment, including early versions of the Reconstruction Amendments that would have protected race and gender.

For Thursday, we continue with Gender Discrimination.

    • How and why did the Court move from rational-basis to strict scrutiny to intermediate scrutiny from Reed through Frontiero through Craig. What guided the Court in making this choice? How did this apply in Virginia?

    • How does the Court handle the "incidents" of gender, such as pregnancy?

    • Look at the Equal Rights Amendment--its text and current events over its ratification. Is the ERA necessary, given how the 14th Amendment has developed? Would explicit text do anything that the general "equal protection" language?

Then move to Other Classifications and Panel # 19. 

    • Note the common theme on these being not to apply heightened or strict scrutiny, but to nevertheless find laws invalid--how is the Court able to do that?
    • How can sexual-orientation discrimination be characterized as gender discrimination? Consider this on the issue of same-sex marriage.

Presidential transition and mandamus?

For those of you who have been following whether Joe Biden is, in fact, President-Elect and whether he can begin his transition.

The Presidential Transition Act of 1963 requires the administrator of the General Services Administration to "ascertain" someone as the "apparent" winner of the presidential (and vice presidential) election. This vests a great deal of discretion in the administrator, although it historically has been done when one candidate had been the apparent victor in "called" elections adding to 270 electoral votes. The current delay was due in part to the fact that several states (PA, AZ, GA, NC) had not been "called," although that has happened. The administrator could wait until 270-electoral-votes of states have certified the result. Or it could wait until after the Electoral College has voted, although that has happened only in 2000. Meanwhile, we wait.

Can Biden do anything in the meantime? If you recall Marbury, there is the writ of mandamus, a court order compelling an official to do their (non-discretionary) administrative duty. The Marbury Court first considered whether delivering the commission was a non-discretionary administrative act that can be ordered via mandamus, concluding that it was. Ascertaining the election winner is more discretionary than delivering a commission. At some point, however, it will be so "apparent" that Biden won the election that any administrative discretion to refuse to "ascertain" disappears.

But wait, Professor Wasserman (I hear you say), didn't the Court say that it had no jurisdiction to issue the writ? Yes, the Supreme Court has no original jurisdiction to issue a writ of mandamus. But district courts do, combining the power to issue writs with a grant of jurisdiction (and probably general federal question jurisdiction--sorry for the Civ Pro flashback). So keep an eye on this possibility should GSA continue to drag its feet.

Additional materials on the conflict between religious liberty and marriage equality

Below are some materials on the issue I mentioned in class yesterday, about the collision between religious liberty and marriage equality (or LGBTQ rights generally).

First, some elaboration on the conflicts, as I think I rushed through them. First, following Obergefell, same-sex couples are legally entitled to marriage licenses from government officials. But what happens when the county clerk (or other official responsible for providing licenses) has a religious objection to same-sex marriage and objects to providing that license to the same-sex couple? Second, state and municipalities have public-accommodations laws that prohibit discrimination against customers for a host of reasons, including sexual orientation. But what happens when a business such as a wedding photographer or wedding-cake baker has a religious objection to same-sex marriage and objects to providing those services for a same-sex wedding?

That is the collision between LGBT rights and religious liberty: Whether the religious believer is entitled to an accommodation from these laws to not comply with their obligations towards LGBT and same-sex couples. And whether there is a way to balance the rights of the religious objector with the rights of the same-sex couple.

So:

1) Kim Davis was the clerk of Rowan County, Kentucky. She refused on religious grounds to provide licenses to same-sex couples and to have her name (as county clerk) on those licenses. She was sued by two couples, ordered to issue the licenses, refused, and was jailed for contempt of court. She also was sued for damages and her immunity defense was rejected. SCOTUS last month denied cert, with Justices Alito and Thomas dissenting from the denial with a harsh attack on the "ruinous consequences" of Obergefell for religious liberty.

 2) Fulton v. City of Philadelphia arises from the City of Philadelphia's decision to stop using Catholic Social Services to provide foster-care services because CSS refused, on religious grounds, to work with same-sex parents as the City required in its efforts to ensure equality in its legal operations. SCOTUS heard argument last week--here is the transcript, here is the audio. A couple things to note:

    • Justice Alito pushed questions, drawn from language Obergefell, about whether opposition to same-sex marriage reflects bigotry or whether there can be good-faith and honest reasons for it, contra race discrimination.

    • Justice Kagan pushed the Solicitor General (the US was amicus in the case) about whether government has a greater interest in eradicating race discrimination than LGBT discrimination. This goes towards whether there must be a religious accommodation from general obligations such as public-accommodations laws. If the answer is yes, then government could compel wedding photographers to provide services for inter-racial couples (which it does) even if it cannot compel them to provide services for same-sex couples.

For Monday

 Thursday video--with, without. Reax Papers for Panels ##14 and 15 both due at 7 p.m. next Thursday.

We continue with School Desegregation and the competing approaches in Parents Involved. What are the government interests and why are they not satisfied  by the programs at issue? Is there a majority for the proposition that race cannot be taken into account? How does Justice Kennedy, again, try to thread the needle?

We then move to De Jure Discrimination and Panel # 17. Again, we will skip Affirmative Action.

    * What is the difference between de jure and de facto discrimination (or disparate treatment and disparate effect)? Which does the Constitution require to find a violation?

    * How can a race-neutral law be discriminatory? What role do discriminatory effects play?

We then move to Gender Discrimination and Panel # 18. Consider:

    * Why is race discrimination subject to strict scrutiny--what is the basic logic behind rigorous scrutiny of race distinctions? What is the idea behind that? And then why is gender discrimination subject to less-rigorous scrutiny? How does "gender stereotype" play into that distinction, particularly as seen in US v. Virginia?

    * Who brought the lawsuit in Craig?

    * Note the role of leveling-up v. leveling-down in Sessions. What guides the Court in making that choice?

    * How can sexual-orientation discrimination be characterized as gender discrimination? Consider this on the issue of same-sex marriage.

If you are looking to get ahead, read through the rest of the semester. We certainly will get to Other Classifications on Thursday and may reach Fundamental Rights, as well.

For Thursday

Wednesday video--with, without. Panel # 13 papers due tomorrow at 7 p.m.; Panel # 14 papers due next Thursday at 7p.m. All papers should be sent to Connie Giffuni: cgiffuni@fiu.edu.

We continue with Race Discrimination and Loving and Korematsu. Think about the difference between anti-classification and anti-subordination ideas and how each explains the defects in the laws in both cases. How, exactly, is the anti-miscegination law racially discriminatory, if whites and African-Americans are prohibited from marrying the other race and punished similarly?

One historical point: Jim Crow did not begin immediately after Reconstruction; it took about 10-15 years, leading to Plessy in 1896. Following the decision, Jim Crow takes off, extending to segregation in schools, hotels, restaurants, parks, hospitals, prisons, bathrooms, and water fountains.

We then move to School Desegregation and Panel # 16. Think about Brown and school desegregation in terms of the anti-subordination v. anti-classification principles. Parse Brown and the analysis the Court used and consider a different approach it could have taken. Note the course of school desegregation after Brown as another illustration of how Supreme Court opinions get implemented on the ground. How do the two theories of the equal protection clause diverge in Parents Involved? How did the Court declare invalid desegregation in D.C. schools?

I hope to reach De Jure v. De Facto Segregation towards the end of class (Panel # 17), so please prep that fairly short reading.

Second Decanal Lecture Video

Watch the video of A Conversation with Chief Judge Sri Srinivasan.

Reminder that Chief Judge Srinivasan will preside over the moot court finals at 6 p.m. on Tuesday (I know some of you may have class). Watch here.

Acting department heads

Recall our conversation about presidential appointment and removal and the issue of a President using acting officers to avoid Senate scrutiny. President Trump did this largely to avoid Senate oversight. Early stories predict that Senate Majority Leader Mitch McConnell may attempt to influence over President Biden's executive appointments by refusing to confirm officers deemed "too liberal." And so like his predecessor, Biden might resort to acting appointments.

Federalist No. 76 (Hamilton) is the key statement of the framers on the rationale for Senate confirmation of executive officers:

It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.

But the motive arguably has changed, just as we discussed "separation of powers" replaced by "separation of parties." Trump seemed to avoid Senate approval to avoid thaqt inter-branch check. Beginning in January, the Senate becomes motivated by partisan concerns (a legitimate principle under the Constitution as it has developed), which now glosses how it will wield the confirmation authority. And the President's response will be similarly motivated by partisan concerns.

Do not be this attorney, part # 77

I do not care which side of the political divide you stand. Do not be this lawyer: '

Panel # 12 Reax Papers

 Here, here, here, and here.

Panel # 11 Reax Papers

Here, here, here, here, here, and here.

For Monday

Monday audio--with transcript, without transcript. No class Thursday; do watch the Moot Court semi-finals beginning at 6. We will meet three times next week--Monday, Wednesday make-up, and Thursday. Panel # 12 Reax Papers due at 7 p.m. Thursday; Panel # 13 Reax Papers due at 7 p.m. Monday. All papers should not be sent to Connie Giffuni at cgiffuni@fiu.edu.

We will have a few final points on Obergefell and marriage. Are anti-polygamy laws invalid under Obergefell? One question touched on in several Obergefell opinions is the interaction of same-sex marriage with religious freedom and religious views about marriage. Farber discusses it a bit. This short opinion by Justice Alito, joined by Justice Thomas, argues the problem; this is a dissent from the denial of certiorari in the lawsuit against Kim Davis, the county clerk in Rowan County, Kentucky, who refused on religious grounds to issue or to have her name on marriage licenses for same-sex couples.

Finally, consider the two parts of a Supreme Court decision (judgment and opinion) and what that means for other laws in other states. What did the Court's judgment resolve and what did its opinion decide and how does that affect other states. And what happens for couples wanting marriage licenses in other states?

We then move to Equal Protection: General and Race Discrimination: Discrimination Against Racial and Ethnic Minorities.

    • What is the basic idea behind equal protection and the concept of "discrimination." How does it apply to actions by state governments and by federal governments?

    • How does FN 4 of Carolene explain the different approaches to discrimination in economic cases as opposed to discrimination as to racial and ethnic groups? What is the purpose of strict scrutiny in the equal protection context?

    • How was there race discrimination in Loving, if the law prohibited all people, regardless of race, from marrying someone of a different race?

Assignment of Opinions

Thanks to all of you who attended last week's panel on Justice Ginsburg. Here is the video.

One question that came up in the Q&A, asked by one of your colleagues, is how opinions are assigned and drafted. So a quick primer.

The Justices meet in conference every Friday to decide the cases argued earlier in that week. They go around the table in order of seniority, the Chief always senior-most (regardless of how long he has been on the bench--Roberts was senior-most the day he joined the Court). Each explains her conclusion in the case and her reasoning. Following that discussion, the opinion is assigned by the senior-most Court member in the majority, with the Chief again always senior-most. This means that if the Chief is in the majority as to the judgment, he assigns the opinions, generally with the goal of distributing the cases relatively evenly for each sitting; this is one of the key powers the Chief wields. If the Chief is not in the majority, the senior-most Associate Justice in the majority assigns the opinion.

The assigned Justice takes on the process of drafting an opinion, herself and in cooperation with her clerks. Different Justices do it different ways. Some have the clerk do the first draft (after telling her the result and the basic reasoning), while others do much of the drafting themselves.

Once the draft is done, it is circulated to the other Justices to review and to make comments, suggested changes, edits, etc. The other Justices are asked to "join" the opinion. The authoring Justice may take those suggestions in order to get the suggesting Justice to join and thus to hold onto a majority (or as large a majority as possible). This is also the signal for any justices who want to write a concurrence (having joined the opinion) or to refuse to join the opinion and write a concurrence in the judgment. One or more of the justices who began in dissent following the Conference may have begun drafting a dissent, but this will pick up now that there is a majority to respond to. These separate opinions (concurrences, concurrences in judgment, and dissents) also are circulated for others to Join.

Once all the opinions have been drafted, circulated, and joined, the opinion is announced on designated opinion days, with the Justice reading a summary of the opinion from the bench. In important cases, a dissenter may read her dissent from the bench.

One interesting question that came up among the panelists, relevant to this class and the panel: Who assigned June Medical? The Chief was in the majority for the judgment, so that suggests he would have assigned. But it perhaps was clear at the time of Conference that he went along only on stare decisis grounds and would not join any opinion coming from the remaining Justices wanting to reverse. In that case, Justice Ginsburg, senior-most Associate Justice in the majority, would have assigned the opinion to Justice Breyer. It is not clear how this played out--we will not know until the Justices' papers are released years from now.