King Hall scholars weigh in on key cases from the 2018 Supreme Court term

In late June, the United States Supreme Court wrapped up its 2018 term by ruling in several key cases. Here, immigration law scholar and regular SCOTUSBlog contributor Kevin R. Johnson, administrative law and constitutional law scholar Ashutosh Bhagwat, criminal law and procedure scholar Irene Joe and constitutional law and immigration law scholar Brian Soucek weigh in on several of these cases:

Dean Kevin Johnson, on Department of Commerce v. New York:

“In Department of Commerce v. New York, the Supreme Court addressed legal issues surrounding the addition -- actually a re-addition since a citizenship question had been asked on past Census questionnaires -- of a question on U.S. citizenship on the 2020 Census.”

The case is of great practical importance as the final tabulation of the Census will affect representation in Congress, allocation of federal dollars, and more.

The Court, in an opinion by Chief Justice John Roberts, held that (1) the addition of question about citizenship to 2020 Census does not violate Constitution’s Enumerations Clause or the Census Act; and (2) the Secretary’s decision did not violate the APA.  However, Chief Justice Roberts, in a part of the opinion joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, found that the district court was warranted in remanding case to the Department of Commerce to provide a further explanation for adding the question. Chief Justice Roberts found that the Department of Commerce's claim that the citizenship question was designed to facilitated Voting Rights Act enforcement seemed “contrived.”

After oral argument, some Court observers predicted that five Justices favored the citizenship question and that the Court would green light the question for the 2020 Census. However, subsequent developments may have muddied the waters in the minds of the justices; new evidence came to light that that the citizenship question on the Census was adopted with partisan voting consequences in mind.

As a regular immigration contributor to SCOTUSBlog, perhaps the leading blog on the U.S. Supreme Court, I was not surprised. As Linda Greenhouse has written, Chief Justice Roberts is concerned with the perceived legitimacy of, and public confidence in, the Court. A rubber stamping of the citizenship question without further inquiry would have been an indelible stain on the Court’s legitimacy.

Just days before the Court handed down the Census decision, an appellate court had opened the door for further discovery into whether anti-Hispanic animus played into the Secretary’s decision on the citizenship question. This is a serious charge and few could claim that it does not warrant investigation. How legitimate would it look for the Supreme Court to allow the citizenship question to go forward in light of charges that it was motivated by an invidious intent?

Moreover, it is well-known that facilitating the cooperation of immigrants with the Census count historically has been challenging. And few would dispute that the fear of government prevalent in immigrant communities has increased during the Trump administration. The administration repeatedly has emphasized that undocumented immigrants, as well as other immigrants, will be subject to the full force of the law and removal. In the weeks before the Court’s decision, President Trump threatened an imminent mass removal campaign, only to temporarily halt the effort at the 11th hour. Throughout his administration, President Trump, as well as others in the administration, repeatedly have stated the need to ramp up immigrant removals. The attempted rescission of the Deferred Action for Childhood Arrivals (DACA) policy; ending Temporary Protected Status (TPS) for Salvadorans, Haitians, Nicaraguans and others; the Muslim ban; increased vetting of visa applicants; much-publicized workplace raids; proposed tightening of public benefits for immigrants; and other immigration enforcement efforts by the Trump administration have created palpable fears of the government in immigrant communities.

Consequently, the concern is that a Census citizenship question will further discourage immigrants from participating in the Census. The predictable result would be an inaccurate - and low - count of immigrants in Census 2020. To allow the citizenship question to be added to the Census, in light of uninvestigated claims of anti-Hispanic animus and in the face of unquestionable anti-Hispanic impacts, would be a legitimacy nightmare for the Court.

• The Court might well have learned from upholding the travel ban in Trump v. Hawaii, in which a 5-4 majority in an opinion by Roberts ignored the evidence of the Trump administration’s anti-Muslim intent and upheld ban on national security grounds.The decision was widely criticized as discriminatory.
• The Court’s decision for the most part ignores all this context. It considers the citizenship question in isolation, looking in a sterile fashion at the benefits of a count of citizens in the Census. At the same time, it saw that the explanation offered by the Secretary did not ring true.
• In an ideal world in which participation was a given, and immigrants felt comfortable in participating, a count of U.S. citizens would be beneficial to policymakers and researchers. For example, knowledge of numbers of citizens in certain regions would indicate a need for resources in those regions to facilitate naturalization and for other immigrant services. High immigrant cities and states would have information that would assist in advocacy for resources from the federal government to serve immigrants, such as for the costs incurred in public education and English-as-a-second-language courses.
• Unfortunately, Census 2020 is not occurring on a clean slate. Fears of the federal government currently are at a recent high. Immigrants are likely to be frightened even more by a citizenship question.
• All of this is separate and apart from the voting implications of a Census 2020 count with immigrants undercounted. Evidence that the electoral implications figured prominently in the Trump administration’s decision to add the citizenship question is troubling, to say the least. Some observers have characterized the voting implications as the primary reason that the administration seeks to add the citizenship question.”

Professor Brian Soucek, on Department of Commerce v. New York:

“The Trump administration keeps getting smacked down in the courts for doing things incompetently. Last year, Trump had to issue three different travel bans before arriving at one that the Court could (just barely) approve. It didn’t do a good enough job justifying a citizenship question on the Census for five Justices to approve it. And the same issue will come up next (term) with DACA: the question isn’t whether Trump can end the program, but whether he’s managed yet to give a coherent justification for ending it.”

Professor Ashutosh Bhagwat, on Iancu v. Brunetti:

“Eric Brunetti created a clothing line named FUCT. When Brunetti tried to register the name as a trademark, the Patent and Trademark Office (PTO) denied registration under a statutory provision that denies registration to an ‘immoral or scandalous’ mark. The reason was, of course, that Brunetti’s brand, when pronounced as a word, sounds like the past tense of a famous vulgarity. Brunetti then sued, claiming the PTO’s denial of registration for his mark violated the First Amendment.

The Supreme Court, in opinion written by Justice Elena Kagan, concluded that the statutory prohibition on immoral and scandalous marks, both as written and as applied by the PTO, discriminated against speech on the basis of viewpoint and so automatically violated the First Amendment. The Court pointed out that the law permitted registration of trademarks that favor social mores or conventional morality, but not marks that oppose these things. The Court left open whether it might uphold a more narrowly written law that banned only vulgar or lewd trademarks. The dissent would have interpreted the word ‘scandalous’ to ban only vulgar or lewd trademarks, and upheld it because a ban on vulgar or lewd marks does not discriminate based on viewpoint.

The Court has once again confirmed that the First Amendment almost never permits the government to discriminate against speech because of its viewpoint. This principle applies even when the government is handing out benefits such as trademark registration. And combined with its earlier decision in Matal v. Tam holding that the government cannot refuse to register trademarks that ‘disparage’ particular people, this case probably spells the end of any efforts to regulate so-called 'hate speech.'”

Professor Bhagwat, on Kisor v. Wilkie:

“Since at least 1945, the Supreme Court has decreed that when a court is interpreting a regulation, it should defer to any reasonable interpretation advanced by the agency that adopted the regulation. In the Kisor case, the Court considered whether it should abandon this rule (called Auer or Seminole Rock deference). By a 5-4 vote, the Court decided not to overrule Auer deference. Four justices (Justice Kagan, joined by her three liberal colleagues) argued that Auer deference made sense because interpretation of ambiguous regulations often involves making policy judgments. Agencies, she argued, are better positioned to make such judgments than courts because agencies are politically accountable, and possess expertise. Chief Justice Roberts provided the fifth vote for affirmation of Auer, invoking stare decisis.

The other four conservative justices issued sharp dissents. The leading dissent by Justice Gorsuch argued that Auer deference violated the Administrative Procedure Act, whose text appears to command courts to decide all questions of law on their own. He also argued that Auer deference created severe separation of powers problems, by combining in a single entity—the agency—the power to make and to interpret law.”

Kagan’s opinion in Kisor is “a law review article by a former professor of administrative law, disguised as a judicial opinion. It is one of the most clear and elegant descriptions of a complicated issue of administrative law  - the extent to which courts should defer to legal interpretations by agencies - that the Court ever has  provided. Finally, Kisor reaffirms the important idea that agencies, not courts, should take the lead in making regulatory policy in the United States.”

Professor Irene Joe, a former New Orleans public defender and voir dire expert, on Flowers v. Mississippi, in which the Supreme Court ruled on whether a Mississippi prosecutor who had tried a death row inmate Curtis Flowers six times on the same charges had unconstitutionally excluded black jurors in the sixth trial:

“In Flowers v. Mississippi, the Supreme Court overturned the conviction and death sentence of Curtis Flowers a man whose already oft-discussed case was made more popular by the In the Dark podcast. The Court, in a decision authored by Justice Brett Kavanaugh, held that the prosecutor used his peremptory challenge to remove a black juror in violation of the Equal Protection Clause. Although this seemed the only just outcome based on the evidence presented, it is disappointing that there was no mention of the role that racial discrimination undoubtedly played in the jury composition on a larger scale. The few African Americans called forth for jury duty in his trial was wholly unrepresentative of the majority black county in which the trial was held and that fact alone is cause for concern.

In its majority opinion, the Court notes that the county in which each of the six trials occurred is comprised of approximately 53 percent black residents and 49 percent white residents. At various other stages in the opinion, the Court mentions the makeup of the venire, or those individuals called to even be considered for jury service.

In the first trial, there were 36 prospective jurors. Thirty-one of those prospective jurors were white and five were black. The second trial saw 30 prospective jurors with 25 of them being white and five being black. The third trial consisted of 45 prospective jurors with 17 of them identifying as black and 28 as white. The fourth trial had 36 prospective jurors and saw 16 of them identify as black and 20 identify as white.

There was no available racial information for the prospective jurors for the fifth trial but the jury was eventually composed of nine white jurors and three black jurors. The fifth trial consisted of 26 prospective jurors with six of them being black and 20 of them being white.

Interestingly enough, the Court also notes in its opinion that peremptory challenges were historically used to remove the few African Americans that might be called for jury duty in non-diverse communities. Here, the prosecutor was able to engage in the same historical practice in a jurisdiction that is predominantly black. That misconduct is only an option for a prosecutor when the process for calling jurors to appear for jury duty in the first place is already limiting the number of African Americans in a problematic way.”

Professor Soucek, on the 2018 term in general:

“It was striking how many fractured decisions and separate concurrences there were this term. The Justices are really going their own ways, staking out their own individual approaches to many of the big issues—perhaps because it’s so uncertain what the future holds for the makeup of the Court. Everyone wants to be ready if personnel changes go their way.”