UVA Law Faculty Comment on Supreme Court Decisions

Supreme Court

June 1, 2015

University of Virginia School of Law professors are available to talk to the media about Supreme Court decisions and have provided comments to recent rulings below. See the Media Tip Sheet for a full list of available faculty.

Brumfield v. Cain (Brandon Garrett)
Davis v. Ayala (Brandon Garrett)
EEOC v. Abercrombie (Douglas Laycock, J. H. Verkerke)
Elonis v. United States (Daniel Ortiz, Frederick Schauer)
Glossip v. Gross
(Brandon Garrett)
Johnson v. U.S. (Brandon Garrett)
King v. Burwell (Margaret Foster Riley)
McFadden v. United States (Brandon Garrett)
Michigan v. EPA (Jonathan Cannon and Michael Livermore)
Obergefell v. Hodges (Douglas Laycock, Thomas Nachbar, Richard Schragger, Micah Schwartzman and J. H. Verkerke)
Reed v. Town of Gilbert, Arizona (Douglas Laycock)
Texas Department of Housing and Community Affairs v. The Inclusive Communities Project Inc. (George Rutherglen)
Walker v. Texas Division, Sons of Confederate Veterans Inc. (Leslie Kendrick, Frederick Schauer)
Zivotofsky v. Kerry (Saikrishna Prakash, Paul Stephan)
 

Michigan v. EPA

Jon CannonJonathan Z. Cannon
Blaine T. Phillips Professor of Environmental Law
Class of 1941 Research Professor of Law
Director, Environmental and Land Use Program
jzc8j@virginia.edu
(434) 981-7410 (cell)
(434) 924-3819

Jon Cannon is an expert in Supreme Court environmental decisions and a former general counsel at the Environmental Protection Agency. He is the author of "Environment in the Balance: The Green Movement and the Supreme Court."

On Michigan:
"Michigan v. EPA suggests a presumption, adhered to unanimously by the court, that where Congress has not specifically addressed consideration of costs, agencies are required to consider them, because it would be unreasonable for them not to. Only where Congress has evidenced its intent to preclude consideration of costs (the narrow niche to which American Trucking is now confined) are agencies free to ignore them. Apart from the specific issues in the case, this is a significant development in the court’s approach to regulatory review. With both factions presuming that costs should be considered, the issue was not whether but when." More at "Justices Agree Cost Matters, But Differ as to When" (Author) (ACOEL)

 

Michael LivermoreMichael Livermore
Associate Professor of Law
mlivermore@virginia.edu
(434) 982-6224

Michael Livermore is an expert in environmental law and air pollution regulation. His primary teaching and research interests are in administrative law, environmental law, cost-benefit analysis and executive review of agency decision-making.

Brumfield v. Cain
Davis v. Ayala
Glossip v. Gross
Johnson v. U.S.
McFadden v. United States

Brandon GarrettBrandon Garrett
bgarrett@virginia.edu
(434) 924-4153

Brandon Garrett is the author of "Convicting the Innocent: Where Criminal Prosecutions Go Wrong" and "Too Big to Jail: How Prosecutors Compromise with Corporations." His research and teaching interests include criminal procedure, wrongful convictions, habeas corpus, corporate crime, scientific evidence, civil rights, civil procedure and constitutional law. (More/Video)

On Brumfield:
"This is an important ruling in a death penalty case that a federal court may grant habeas relief where a state court refused to conduct an evidentiary hearing to examine whether the inmate was intellectually disabled and therefore ineligible for the death penalty. The Supreme Court has taken important steps to bolster its ruling in Atkins v. Virginia barring sentencing the intellectually disabled to death. This ruling will help to ensure that lower courts carefully examine the evidence whether an inmate is intellectually disabled."

On Davis:
"Davis v. Ayala is an important case raising claims about jury selection and harmless error, Justice Kennedy concurred to raise something different — that the inmate has been kept in solitary confinement for over 20 years — and calling for greater public and judicial attention to the inhumane toll such conditions exact."

On Glossip:
"What is particularly remarkable about Glossip is that Justices Breyer and Ginsburg have now for the first time come out categorically against the constitutionality of the death penalty. They cited changing public opinion, a remarkable decline in new death sentences, death row exonerations, abolition of the death penalty in more states, all to argue that the death penalty it now itself 'unusual' and arbitrary. The majority, citing very deferential standards of review, found insufficient evidence that the lethal injection protocol used in Oklahoma is cruel and unusual punishment. But the majority took pains to say it reached its result because the death penalty is constitutional. Justice Sotomayor puts it well in dissent — the majority has come up with a 'surreal' requirement that an inmate come up with an 'acceptable alternative' way to execute, in order to prove that an untested lethal injection regime, a form of totally inhumane 'human experimentation,' poses an unconstitutional risk of inflicting undue pain and suffering. With public opinion shifting, the practice shifting on the ground, wrongful convictions coming to light with disturbing regularity, and justices now taking stronger stands against the death penalty, the death penalty may itself be on its last legs."

On Johnson:
"This is such an important decision — the Supreme Court struck down part of a federal criminal statute as so vague that it violates due process. The 'residual clause' of the Armed Career Criminal Act, which provides enhanced punishments for repeat violent criminals had resulted in such confused decisions in the courts and had such unclear language, that the court held it was unconstitutionally standardless and arbitrary. The opinion is particularly striking in its reliance on the experience in the courts of trying to give meaning to this federal crime, and concluding that those judicial efforts had failed, and it was therefore unfair to convict individuals of such a 'shapeless provision.'"

On McFadden:
"The court's ruling in McFadden, which began as a drug bust case at a video store right here in Charlottesville, helps to clarify what knowledge a person must have that one of the increasingly commonly trafficked synthetic drugs that mimick the effects of controlled substances is also an illegal drug. The federal drug law says that a person must have 'knowledge' that a substance is controlled or an analogue to such a substance. Today, the Supreme Court held that the jury must be instructed that this means the defendant must know that the substance is controlled or what its features were. As sales of these synthetic drugs proliferate, this ruling will help to set the ground rules for what prosecutors must prove to a jury. And the ruling also bolsters the court's efforts to ensure that criminal statutes do not reach 'innocent' conduct that is not criminal."

Obergefell v. Hodges

Douglas LaycockDouglas Laycock
Robert E. Scott Distinguished Professor of Law
Class of 1963 Research Professor in Honor of Graham C. Lilly and Peter W. Low
Professor of Religious Studies
dlaycock@virginia.edu
(434) 243-8546

Douglas Laycock is one of the nation's leading authorities on the law of remedies and also on the law of religious liberty. He has co-authored an amicus brief in Obergefell v. Hodges, and in October he argued the religious liberty case Holt v. Hobbs, his fifth oral argument at the Supreme Court. The court ruled unanimously in his client's favor.

On Obergefell:

Thomas NachbarThomas Nachbar
Joseph W. Dorn Research Professor of Law
Senior Fellow, Center for National Security Law
tnachbar@virginia.edu
(434) 924-7588

Thomas Nachbar's research on same-sex marriage is focused on the concept of rationality as used by the Supreme Court to evaluate the constitutionality of many state and federal statutes.

On Obergefell:
"There is much heat and light attached to this issue, and commentators are certain to focus on how the case's holding resolves the constitutional question on same-sex marriage. As a constitutional lawyer, I try to approach hot-button cases the same way as ordinary ones: by asking whether anyone who would have initially disagreed with the outcome would be swayed by the court's opinion. Justice Kennedy's opinion, which identifies marriage as a fundamental right and therefore necessarily open to same-sex couples, does little to develop our understanding of constitutional law beyond enshrining 'marriage' (the definition of which being one of the questions presented in the case) as a fundamental right. He offers little to convince those who would be inclined to disagree with his conclusion (as demonstrated by his failure to respond to any of the four dissenters). As enhancing legal recognition of gays and lesbians (and marriage!) in our society, the holding of the case might be cause for celebration. As a contribution to constitutional discourse, though, there is less about this case to celebrate."

Richard SchraggerRichard Schragger
Perre Bowen Professor of Law
Barron F. Black Research Professor of Law
schragger@virginia.edu
(434) 924-3641

Richard Schragger's scholarship focuses on the intersection of constitutional law and local government law, federalism, urban policy and the constitutional and economic status of cities. He also writes about law and religion.
 

Micah SchwartzmanMicah Schwartzman
Edward F. Howrey Professor of Law
schwartzman@virginia.edu
(434) 924-7848

Micah Schwartzman teaches constitutional law and the First Amendment (Religion Clauses). His areas of interest include law and religion, jurisprudence, and political philosophy.

Schragger and Schwartzman co-authored a piece on Obergefell:
"[The Obergefell v. Hodges] decision did have important ramifications for the relationship between religion and government in the United States, and it does mark the formal beginning of a new phase in the so-called culture wars. The most significant impact of the Obergefell decision for the relationship between religion and government is that it put an end to lawmaking solely on the basis of religious reasons." More at "Obergefell and the End of Religious Reasons for Lawmaking" (Co-authors) (Religion & Politics)

VerkerkeJ. H. Verkerke
Professor of Law
Director, Program for Employment and Labor Law Studies
jhv3q@virginia.edu
(434) 924-3463

J. H. (Rip) Verkerke's published research focuses on employment discrimination law, employment contracts, vicarious liability, the economics of discrimination and contract theory.

On Obergefell:
"Compliance has been a challenge for companies exposed to a crazy quilt of rapidly changing state laws. But it's my impression that during the past decade many major employers have already moved to grant dependent benefits to same-sex partners. So the effect of the ruling on employment benefits will be less dramatic than in other areas.

As for a possible backlash, I don't think that this ruling is at all like the issue of abortion. I don't expect a protracted struggle of the sort we've seen in the wake of Roe v. Wade. From an employment law perspective, the major remaining issues will likely resemble the current controversies about the ACA's mandate of contraceptive coverage. Individual employees and perhaps some religious employers will object to providing services or granting benefits, invoking their sincerely held religious beliefs. We'll surely see continued debate about public accommodations and service providers in states that have not already enacted antidiscrimination laws covering same sex couples. But my sense is that the train of social acceptance for same sex relationships has already left the station. Without a continuing source of widespread outrage, this ruling will soon be no more controversial than its distinguished jurisprudential ancestor Loving v. Virginia."

 

King v. Burwell

Margaret Foster RileyMargaret Foster Riley
Professor of Law, General Faculty
Professor of Public Health Sciences, School of Medicine
Professor of Public Policy, Batten School of Leadership and Public Policy
mf9c@virginia.edu
(434) 924-4671

Margaret (Mimi) Foster Riley has written and presented extensively about health care law, biomedical research, genetics, reproductive technologies, stem cell research, animal biotechnology, health disparities and chronic disease. She teaches food and drug law, health law, animal law, bioethics, regulation of clinical research and public health law.

On King:
"The court's 6-3 decision in King v. Burwell hands a major victory to the Obama administration and means that millions of people will continue to get tax subsidies that are necessary to make their health insurance affordable. It also provides more certainty for the health insurance industry and health care providers generally. The opposite result would have thrown the health care sectors into turmoil. This decision is unlikely to completely quell legal challenges to the ACA, but it is likely to take a lot of wind out of those sails. It will likely shift interest to the debate over state waivers that become available in 2017 which stand to both strengthen and weaken the ACA.

"Legally, the most interesting part of the opinion was that the court ruled that this was not a decision to be delegated to agency interpretation. That may mean that the courts become more involved in statutory interpretation that was viewed as the job of agencies. This opinion leaves the line between that agency delegation and the legislature's purview unclear. By deciding the case on grounds of straight statutory interpretation, the court did not make new law on federalism and states rights grounds as many thought it might after oral argument. In retrospect, chief justice Roberts sole subtantive question may have been the most important part of the oral argument. He asked solicitor general Verilli whether a future administration could interpret the law differently. In his opinion, Roberts answers that question: No. The rest of the opinion flows from that answer."

Texas Department of Housing and Community Affairs v. The Inclusive Communities Project Inc.

George RutherglenGeorge Rutherglen
John Barbee Minor Distinguished Professor of Law
gar3h@virginia.edu
(434) 924-7015

George Rutherglen teaches admiralty, civil procedure, employment discrimination and professional responsibility. He has written widely on employment discrimination, civil rights and admiralty. His research interests also include conflict of laws, federal courts, legal philosophy, affirmative action, sexual harassment and sexual discrimination.

On Texas Housing:
"This case really addresses two issues: whether the Fair Housing Act supports a claim for disparate impact, sometimes called discriminatory effects; and what the dimensions of such a claim are. On the first issue, the court interprets the act to authorize a claim for disparate impact. This is important because it recognizes that Congress meant civil rights statutes, like the Fair Housing Act, to provide for equal opportunity in fact, not just in intent. Housing authorities can be held liable without proof of discriminatory intent and they cannot evade the act by engaging in practices with unjustified discriminatory effects. On the second issue, the court also recognizes limits on the claim for disparate impact, requiring proof that any disparity was caused by "artificial, arbitrary, and unnecessary barriers" to racial equality. Allowing recovery for racial disparities alone would raise constitutional questions about the scope of permissible affirmative action. The court’s holding on both issues today preserves the consistency between the interpretation of the Fair Housing Act and the interpretation of other modern civil rights statutes, such as Title VII of the Civil Rights Act of 1964. It also preserves disparate impact claims under these statutes from constitutional attack."

Walker v. Texas Division, Sons of Confederate Veterans Inc.

Leslie KendrickLeslie Kendrick
Albert Clark Tate, Jr., Professor of Law
kendrick@virginia.edu
(434) 243-8633

Leslie Kendrick's research focuses primarily on freedom of expression. Kendrick clerked for Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the 4th Circuit and for U.S. Supreme Court Justice David Hackett Souter.

On Walker:
"An interesting aspect of the Court’s Walker ruling is that, if license plates are deemed government speech, then certain messages on them might violate the Establishment Clause or even the Equal Protection Clause. A plate deemed to be improperly religious or, say, racist or sexist, could become something that the state not only could reject but would have to reject." More at "The License Plate as Podium: Who Speaks — You or the Government?" (Author) (The Conversation)

 

Frederick SchauerFrederick Schauer
David and Mary Harrison Distinguished Professor of Law
schauer@virginia.edu
(434) 924-6777

Frederick Schauer's research interests include constitutional law, evidence, legal reasoning, jurisprudence and philosophy of law. He is a leading expert on freedom of speech and press, and is the author of "Free Speech: A Philosophical Enquiry."

On Walker:
"Perhaps the most significant aspect of Walker v. Sons of Confederate Veterans is the majority’s explicit reaffirmation of the principle that speech by the government is not (questions of religious endorsement aside) restricted by the First Amendment. Although the American Nazi Party, the Communist Party, and the Ku Klux Klan, for example, are in general free to speak and publish, the government, speaking through its officials are equally free to condemn them. As Justice Breyer observed in his majority opinion, government could scarcely operate if its officials could not with speech take public positions for or against policies, groups, individuals, and much else. Indeed, even Justice Alito’s dissenting opinion, for himself and three others, accepted the principle that government speech is unconstrained by the First Amendment. What divided the majority and the dissent was whether Texas, when it allowed citizens to have their own messages included in their state-issued license plates, was opening up a so-called public forum, in which case excluding the Sons of the Confederate Veterans from including their message would have been unconstitutional viewpoint discrimination, or instead articulating the state’s point of view, in which case it would be an example of government speech. This is an interesting and important divide, with potential implications for other instances in which the state voluntarily creates a forum but excludes some from its use on the basis of point of view. But these implications may not be nearly as significant in the long term as is the court’s strong emphasis of the basic idea that when the government speaks it is free to say what it likes."

Reed v. Town of Gilbert, Arizona

Douglas LaycockDouglas Laycock
Robert E. Scott Distinguished Professor of Law
Class of 1963 Research Professor in Honor of Graham C. Lilly and Peter W. Low
Professor of Religious Studies
dlaycock@virginia.edu
(434) 243-8546

Douglas Laycock is one of the nation's leading authorities on the law of remedies and also on the law of religious liberty. He has co-authored an amicus brief in Obergefell v. Hodges, and in October he argued the religious liberty case Holt v. Hobbs, his fifth oral argument at the Supreme Court. The court ruled unanimously in his client's favor.

On Reed:
"Regulation of speech must be content neutral; this principle has been central to the First Amendment. The Court’s decision in Reed v. Town of Gilbert saved that principle from incoherence. The Ninth Circuit had held that a sign ordinance based squarely on the content of the signs isn’t really content based if the government has a good motive. That would have turned a relatively clear and administrable rule into a quagmire of difficult litigation about government motive, seriously eroding First Amendment protections. The Supreme Court held that 'content based' means what it says: does the application of the law depend on the content of what the speaker said?"

Zivotofsky v. Kerry

Saikrishna PrakashSaikrishna Prakash
James Monroe Distinguished Professor of Law
Horace W. Goldsmith Research Professor
sp5mm@virginia.edu
(434) 243-8539

Saikrishna Prakash is an expert on an expert on separation of powers, particularly presidential powers.

The majority opinion in Zivotofsky v. Kerry and Justice Clarence Thomas' concurrence cited Prakash's work more than a half-dozen times, including his articles "The Executive Power Over Foreign Affairs" (with Michael D. Ramsey) and "The President's Power to Execute the Laws" (with Steven G. Calabresi), both published in the Yale Law Journal. The majority cited the proposition that President George Washington unilaterally recognized the Revolutionary French Government as the government of France, which showed that recognition was a presidential power. The Thomas concurrence cited the contention that the grant of executive power included authority over foreign affairs and hence encompassed questions of recognition.

Paul StephanPaul Stephan
John C. Jeffries, Jr., Distinguished Professor of Law
David H. Ibbeken '71 Research Professor
Director, Graduate Studies Program
pbs@virginia.edu
(434) 924-7098

Paul Stephan is an expert on international business, international dispute resolution and comparative law, with an emphasis on Soviet and post-Soviet legal systems. He clerked for Supreme Court Justice Lewis F. Powell Jr.

On Zivotofsky:
"Justice Kennedy’s majority opinion decides two basic issues. First, the power to recognize states, inferred from the express Article II powers to receive ambassadors, negotiate treaties, and nominate ambassadors, is exclusively the President’s. Second, exclusive means that Congress cannot encroach on that authority, even if the enacted law bears some relationship to a constitutional congressional capacity. ... [T]he case tells us more about the court than foreign relations law." More

 

EEOC v. Abercrombie & Fitch Stores, Inc.

LaycockDouglas Laycock
Robert E. Scott Distinguished Professor of Law
Class of 1963 Research Professor in Honor of Graham C. Lilly and Peter W. Low
Professor of Religious Studies
dlaycock@virginia.edu
(434) 243-8546

Douglas Laycock is one of the nation's leading authorities on the law of remedies and also on the law of religious liberty. He has co-authored an amicus brief in Obergefell v. Hodges, and in October he argued the religious liberty case Holt v. Hobbs, his fifth oral argument at the Supreme Court. The court ruled unanimously in his client's favor.

Supreme Court Litigation Clinic students teamed up with Laycock to file an amicus brief on behalf of the American Jewish Committee and other civil rights and civil liberties organizations in the Abercrombie & Fitch employment discrimination case.

On Abercrombie:
"This decision closes an enormous potential loophole in the protection against religious discrimination by employers. Abercrombie rejected the plaintiff’s job application because of her Muslim headscarf, and then defended on the ground that she never explicitly told them that her scarf was really a religious practice. The court would not let them have it both ways."

 

VerkerkeJ. H. Verkerke
Professor of Law
Director, Program for Employment and Labor Law Studies
jhv3q@virginia.edu
(434) 924-3463

J. H. (Rip) Verkerke's published research focuses on employment discrimination law, employment contracts, vicarious liability, the economics of discrimination and contract theory.

On Abercrombie:

"First, Justice Scalia’s opinion for a seven-justice majority adopts an approach that simplifies the doctrinal analysis of religious discrimination claims. The opinion permits a disparate treatment claim whenever a person’s religion or religious practice is a motivating factor in an employer’s decision to deny that person an employment opportunity. This approach eliminates the confusion of recognizing an independent claim for a failure to accommodate and properly reserves undue hardship as an affirmative defense.

"Even so, the court’s approach incorporates accommodation into the intentional discrimination claim. According to the majority, the employer’s motive must be to avoid the burden of accommodating a religious practice. However, footnote 3 of Justice Scalia’s opinion expressly reserves the question of whether an employer must know or suspect that a practice is religious in nature and that it may require accommodation.

"Despite the opinion’s reticence on this point, it seems to me impossible to meet the majority’s motive standard without evidence that the employer believed the plaintiff might need accommodation for a practice that is religious in nature. In order to form a motive to avoid the need to accommodate, an employer must have some belief that a practice may require accommodation. Title VII only imposes a duty of accommodation for religious practices. Thus, an employer could only fear the burden of accommodation for a practice that the employer at least suspects is religious in nature.

"On remand, I expect that the 10th Circuit will adopt the language of footnote 3. That court will probably rule that liability requires proof that the employer 'knows or suspects' both that a practice is religious in nature and that it may require accommodation.

"That result is somewhat ironic because it brings us back quite close to the circuit panel’s original holding. But the Supreme Court’s ruling invites that result. The court definitively rejects any requirement that a prospective employee must notify an employer that a practice is religious or make a formal request for religious accommodation. The opinion similarly rejects any requirement that the employer have actual knowledge of a religious practice. Footnote 3, however, allows the lower court to infer a lesser standard of knowledge from the Supreme Court’s own description of the discriminatory motive required for liability."

 

Elonis v. United States

UVA Law Supreme Court Litigation Clinic Wins Facebook Threat Case

Dan OrtizDaniel Ortiz
Michael J. and Jane R. Horvitz Distinguished Professor of Law
Director, Supreme Court Litigation Clinic
dro@virginia.edu
(434) 924-3127

Daniel Ortiz teaches constitutional law, administrative law, electoral law, civil procedure and legal theory, and he is the director of the Supreme Court Litigation Clinic. Ortiz in the media

On Elonis:
"It’s a very strong win and a clear opinion that leaves to another day a few big questions — if negligence isn’t enough, what’s the correct level of mens rea required and what role the First Amendment might play in the issue — that the lower courts will consider over the next few years." More
 

Fred SchauerFrederick Schauer
David and Mary Harrison Distinguished Professor of Law
schauer@virginia.edu
(434) 924-6777

Frederick Schauer is a leading expert on freedom of speech and press. Schauer in the media

On Elonis:
"As both Justice Alito in his concurrence and Justice Thomas in his dissent complained, the court avoided some important and frequently arising questions not only about the First Amendment, but also about the intent standards for criminal liability more generally. Given that the Supreme Court decides only 70 or so cases a year with full briefs, arguments and opinions, it is vital that the court use its opinions to give guidance to the lower courts, prosecutors, lawyers, officials and citizens who must plan their activities on the basis of existing federal statutory and constitutional law. Unfortunately, the court seems in many areas over the past few years to be unconcerned with this guidance function, and thus is helping to make the law less predictable and less uniform than would be desirable in a country that purports to take the rule of law seriously."
 

For faculty experts listed by Supreme Court cases or additional information, see the Media Tip Sheet.

 

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