Elk Grove Unified School Dist. v. Newdow (02-1624), F. Hoffman-LaRoche Ltd. v. Empagran (03-724) and Pennsylvania State Police v. Suders (03-95)

June 15, 2004 Supreme Court Update

Greetings Court fans!
As expected, the Court handed down multiple opinions yesterday (six to be exact) in its mad rush to complete its work by the end of June. To break up your reading (and my writing!), I'll summarize this week's news -- the opinions plus three grants -- in two emails.
I'll begin with the big news, namely, the Court's punt in the pledge of allegiance case, Elk Grove Unified School Dist. v. Newdow (02-1624). In this case, the Court held that the plaintiff, Newdow, lacks "prudential standing" to pursue the case and thus the constitutionality of the pledge of allegiance is left to another day. Newdow is an atheist whose daughter attends public school in California where, by operation of state and local law, her elementary school class recites the pledge of allegiance every day. The pledge, as everyone knows, includes the phrase "one nation, under God." In light of this phrase, Newdow claims that the school district's pledge ceremony places an imprimatur on a particular religion and thereby infringes his right to expose his daughter to his religious views. The Ninth Circuit (famously!) held the pledge unconstitutional, but the Supreme Court reversed in a 5-3 decision. (Scalia did not participate in this case because he gave a speech where he announced his views on the matter before the case even came to the Court.)
In an opinion by Stevens (joined by Kennedy, Souter, Ginsburg and Breyer), the Court explained that the "standing" inquiry has 2 components, the constitutional strand and the prudential strand. It is the prudential standing component that defeats Newdow's case. While the constitutional standing doctrine is a limit on judicial power, the doctrine of prudential standing is, as suggested by the name, a set of judicially created doctrines that lead a court to decline to exercise jurisdiction for "prudential" reasons. In this regard, the Court declines to exercise jurisdiction in this case because of the sticky domestic relations issues present in this case. Typically, as Stevens notes, federal courts don't intervene in the realm of domestic relations, leaving those "delicate issues" to state courts. This case implicates those delicate issues because Newdow shares custody of his daughter with the girl's mother, but it is the mother who retains sole legal authority to make decisions for the girl if the two parents cannot agree. Here, the mother has explained that the girl has no objection to the pledge and that she (the mother) believes that the girl would be harmed by this litigation because others might incorrectly perceive that the girl shares her father's atheist views. In the Court's view, it would be inappropriate for the Court to exercise jurisdiction in this matter because Newdow's standing to sue is based on family law rights that are in dispute and his prosecution of the lawsuit might have an adverse effect on his daughter, the person who is the source of his claimed standing. Thus, the Ninth Circuit's decision is reversed.
Rehnquist (joined in full by O'Connor and as to standing by Thomas) concurred. Rehnquist would find that Newdow has standing. He distinguishes the cases cited by the Court and argues that the Court should have deferred to the Ninth Circuit, which had interpreted California family law to give Newdow an interest in this case. (Imagine that! Rehnquist arguing that the Court should defer to the Ninth Circuit!) Despite this disagreement on the standing issue, Rehnquist concurs in the judgment reversing the Ninth Circuit because he believes that the pledge is constitutional. He notes that the "under God" language is merely the latest in a long line of patriotic acknowledgments of religion's role in our nation's history, a line that includes (among others) George Washington's inaugural address, Lincoln's Gettysburg Address, Lincoln's second inaugural, and the last verse of the Star Spangled Banner. These examples illustrate the basic principle that our national culture "allows public recognition of our Nation's religious history and character." Along these lines, Rehnquist concludes that the pledge is not a religious exercise or an endorsement, but simply a recognition that this Nation was founded on a fundamental belief in God. O'Connor wrote separately to explain her view that this type of case should be evaluated by asking whether the action amounts to an "endorsement" of religion. In this test, the court must consider the challenged action from the viewpoint of a "reasonable observer," an objective observer who is aware of the history of the conduct in question. Under this test, there is no need to eradicate all references to religion in public life and as applied here, the pledge is fully constitutional. Finally, Thomas concurred. He thinks the pledge is unconstitutional under the Court's Establishment Clause jurisprudence (and thus he thinks the Ninth Circuit actually got this case right on the precedent!), but for him, this conclusion is evidence that the Court must completely rethink that jurisprudence.
Turning to cases less likely to grab the headlines, the Court issued its decision in F. Hoffman-LaRoche Ltd. v. Empagran (03-724), an antitrust case. In this case, the Court held that the Sherman Act does not apply to a claim involving (1) significant foreign anticompetitive conduct with (2) adverse domestic effect and (3) an independent foreign effect giving rise to the claim. In other words, a foreign purchaser of vitamins cannot sue under the Sherman Act for alleged foreign harm (higher prices for vitamins in foreign countries) arising from a price-fixing conspiracy where the foreign injury is independent of any domestic injury. This conclusion rests on an interpretation of a 1982 statute which excludes from the Sherman Act's reach anticompetitive conduct that causes only foreign injury unless that conduct significantly harms imports, domestic commerce, or American exporters. Antitrust lawyers will want to read this decision (obviously!), but the decision appeals to a wider audience because of its approach to statutory interpretation. Breyer (for everyone but Scalia and Thomas) does not focus his opinion on the precise wording of the statute. Instead, his decision rests on two considerations. First, according to Breyer, as a matter of comity, the Court construes ambiguous statutes to avoid unreasonable interference with the sovereign authority of other nations, and the application of the Sherman Act in this context would cause such interference. Second, the statute's language and history suggest that Congress designed the statute to clarify, but not expand, the Sherman Act's application to foreign commerce, and there is no indication in the case law that at the time of passage, Congress would have thought the Sherman Act applicable to this case. These two considerations drive the Court's conclusion even though the respondents raised linguistic arguments to show that their reading of the statute (to allow a Sherman Act suit) is perhaps the more "natural reading" of the statute. According to Breyer, the respondents' reading is inconsistent with the statute's basic intent, and therefore, because the statute reasonably permits an interpretation consistent with that intent, the respondents' reading is rejected. Scalia, joined by Thomas, concurred separately (in one sentence) to state that the statute is susceptible of the interpretation adopted by the Court. (O'Connor took no part in this case.)
Next, in Pennsylvania State Police v. Suders (03-95), the Court announced standards for consideration of claims of constructive discharge arising from sexual harassment attributable to a supervisor. Suders claimed that her supervisors in the Pennsylvania State Police harassed her so severely that she was forced to resign. In an opinion by Ginsburg (for everyone but Thomas), the Court held that a plaintiff raising claims such as Suders' must show that the harassing behavior altered the conditions of her employment and further that the abusive work environment was so intolerable that her resignation was a fitting response. The employer may defend such a claim by showing (1) that it had a readily accessible and effective policy for reporting and resolving sexual harassment complaints, and (2) that the plaintiff unreasonably failed to avail herself of that policy. This affirmative defense is unavailable, however, if the plaintiff quits in reasonable response to an employer-sanctioned adverse action that officially changes her employment status (e.g., demotion, cut in pay, etc.). These standards, according to Ginsburg, are direct extensions of the Court's 1998 decisions in Faragher and Ellerth. (Since we have so much ground to cover at this late date in the Term, I'll leave it at that.) Thomas dissented. He thinks the Court's definition of "constructive discharge" strays too far from that concept's origins in labor law. He would apply the same standard, a negligence standard, that he articulated in Ellerth.
That's all for this email. Look for the rest of this week's news later. Until then, thanks for reading!

From the Appellate Practice Group at Wiggin and Dana.
For more information, contact Sandy Glover, Aaron Bayer, or Jeff Babbin
at 203-498-4400, or visit our website at www.wiggin.com.