Supreme Court Update: Alabama Legislative Black Caucus v. Alabama (13-895), Young v. United Parcel Service, Inc. (12-1226) and Order List
Greetings, Court Fans!
We're back with summaries of the two remaining decisions from last week, Alabama Legislative Black Caucus v. Alabama (13-895), on racial gerrymandering in Alabama, and Young v. United Parcel Service, Inc. (12-1226), articulating the standard for proving an individual discriminatory treatment claim under the Pregnancy Discrimination Act. We'll also cover yesterday's orders, including three new cert grants and two per curiam GVRs.
It's the common complaint of appellate lawyers: If only I'd tried the case, I would have made (and preserved) the winning argument. That sentiment was on display in Alabama Legislative Black Caucus v. Alabama (13-895), where a majority of the Court salvaged the winning argument with much effort while the dissent howled that it had been affirmatively waived below. The result is a rather narrow decision that sends the case back to the District Court for renewed consideration of the plaintiffs' racial-gerrymandering claims.
After the 2010 census, Alabama's new Republican-controlled legislature redrew the State's legislative districts with two articulated goals in mind (aside from the unarticulated goal of solidifying its majority): (1) keeping all districts as close in population as possible so as to conform to "one person, one vote"; and (2) avoiding "retrogression" with respect to racial minorities' ability to elect their preferred representatives. The effort to meet these goals led to many additional African Americans being added to districts that were already majority-minority, thereby effectively diluting the "Black vote" statewide while ostensibly avoiding "retrogression." Two groups, the Alabama Legislative Black Caucus ("the Caucus") and the Alabama Democratic Conference ("the Conference"), brought suit challenging the new district boundaries. The plaintiffs "basically claim[ed] that the State, in adding so many new minority voters to majority-minority districts (and to others), went too far." For reasons accidental or deliberate, the plaintiffs framed their case as challenging Alabama's redistricting process as a whole, statewide, rather than with respect to particular districts. Although the Conference did at least develop evidence of racial gerrymandering in six specific districts, it wasn't clear that it had standing to pursue it.
After a bench trial, the District Court ruled in favor of the State, 2-1. It held first that the Conference lacked standing to pursue district-specific racial gerrymandering claims because it had not proved that it actually had members in every affected district in the State. With respect to the plaintiffs' claims that the redistricting plan "as a whole" resulted in unconstitutional racial gerrymandering, the District Court held that the plaintiffs had failed to prove that racial considerations predominated over legitimate ones and that, even if race had been the predominant consideration, the State had satisfied strict scrutiny because its plan was narrowly tailored to serve the compelling interest of preventing "retrogression" under Section 5 of the Voting Rights Act.
The Supreme Court reversed, 5-4. Writing for the liberals-plus-Kennedy majority, Justice Breyer began with an uncontroversial point: "A racial gerrymandering claim . . . applies . . . district-by-district. It does not apply to a State when considered as an undifferentiated ‘whole.'" The District Court erred in analyzing the case as one requiring proof of racial gerrymandering in the State as an undifferentiated whole. Because there was, in fact, evidence of impermissible racial gerrymandering in six districts, the case was remanded for consideration of plaintiffs' claims on a district-by-district basis.
But wait! shouted Justice Scalia in dissent, the District Court only analyzed the case as involving statewide gerrymandering because that's how the plaintiffs pled and tried it, for better or for worse. "Rather than holding appellants to the misguided legal theory they presented in the District Court, [the majority] allows them to take a mulligan, remanding the case with orders that the District Court consider whether some (all?) of Alabama's 35 majority-minority districts result from impermissible racial gerrymandering."
In response, Justice Breyer emphasized that the Conference had raised arguments of district-specific racial-gerrymandering. But this required him to further conclude that the Conference had standing to raise (and preserve) these claims. The evidence was that the Conference "has members in almost every county in Alabama." Although Alabama's counties are split into many different legislative districts, the majority held that because one of the explicit goals of the Conference was to endorse political candidates that would be responsive to blacks (among others), it was reasonable to infer that "the organization has members in all of the State's majority-minority districts." Needless to say, Justice Scalia did not find the inference so reasonable, or did not, in any event, feel that an inference can substitute for actual proof when it comes to standing.
Standing aside, the District Court had ultimately held that the racial-gerrymandering claims failed because race was not the State's "predominant motivating factor;" the twin goals of maintaining equal population and preventing retrogression predominated. Turning to that question, the Court held that the District Court erred in considering equal population as one factor among others in the determination whether race predominates. Instead, an equal population goal "is part of the redistricting background, taken as a given, when determining whether race, or other factors, predominate in a legislator's determination as to how equal population objectives will be met." For at least some of the districts involved, the majority believed that—had the equal population goal been treated as a given—the District Court might have concluded that race was the predominant factor. Finally, the majority rejected the District Court's conclusion that, even if the State had subordinated traditional districting principles to racial considerations, the redistricting plan satisfied strict scrutiny because it was narrowly tailored to comply with Section 5 of the Voting Rights Act's non-retrogression principle. As Justice Breyer explained, Section 5 did not require Alabama to maintain particular percentages of minority voters in each district in order to satisfy the non-retrogression principle. Rather, it simply prohibited the State from adopting a change that diminished the ability of the minority group to elect its preferred candidates of choice. It was not, in other words, necessary, for a district that was 70% Black after the 2000 census to remain 70% Black in order to avoid retrogression.
This line of reasoning really stuck in the craw of Justice Thomas, who in addition to joining Justice Scalia's main dissent on standing and waiver, penned his own solo dissent lamenting that "[w]e have somehow arrived at a place where the parties agree that Alabama's legislative districts should be fine-tuned to achieve some ‘optimal' result with respect to black voting power; the only disagreement is about what percentage of blacks should be placed in those optimized districts." The rest of Justice Thomas's dissent consisted of a critical history of race-based redistricting and what he viewed as the Court's wayward Voting Rights Act jurisprudence.
At the end of the day, the narrow holding in Alabama Caucus was simply that any racial gerrymandering claim must be analyzed district by district and not with respect to the State as an undifferentiated whole. Believe it or not, all nine Justices agreed on that point. But the degree of naysaying surrounding the other issues in the case reveals that this is still an area of the law that is rife with controversy and disagreement.
Young v. United Parcel Services, Inc. (12-1224) also divided the Court. There, the Court had to address the tricky question of how the Pregnancy Discrimination Act ("PDA") applies to a claim of discriminatory treatment where an employer provides an accommodation to some, but not all, other categories of disabled workers. The PDA contains two relevant provisions. The first merely clarifies that Title VII's prohibition against sex discrimination applies to discrimination based on pregnancy. The second states that employers must treat "women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work." 42 U.S.C. § 2000e(k) (the "same treatment" clause). Young worked for UPS as a driver picking up and delivering packages. After several miscarriages, Young became pregnant and her doctor, fearing further miscarriage, placed her on a lifting restriction. Young requested accommodation from UPS, but UPS declined. Young then brought a disparate treatment claim under the PDA, claiming that UPS discriminated against her on the basis of pregnancy by accommodating other individuals with similar limitations, but not her. Young did not assert any disparate impact claim.
UPS's policy was to provide lifting accommodations to three categories of workers: (1) those injured on the job; (2) those with a qualifying permanent disability under the ADA; and (3) those who lost their commercial driver's license for a medical reason. Young did not fall into any of the enumerated categories. So, the question for the Court was: Did UPS discriminate against Young by treating her differently than three other categories of disabled workers who received accommodations? Or was UPS's policy nondiscriminatory because it treated Young the same as all other workers who were on a lifting restriction that didn't fall into one of the three specific categories (such as someone injured off the job who didn't fit into categories 2 or 3). The Justices were all over the map, with the majority ultimately adopting an interpretation not espoused by any party.
The Court, led again by Justice Breyer, began by explaining that Young's disparate treatment claim under the "same treatment" prong of the PDA, like other Title VII claims, could be established either through direct evidence that the allegedly unlawful policy expressly relies on a protected characteristic or via the burden shifting framework set forth in McDonnell Douglas Corp. v. Green. Under McDonnell Douglas, the plaintiff must first set out a prima facie case of discrimination; the burden then shifts to the defendant to present evidence of a legitimate nondiscriminatory reason for the differential treatment. If the employer sets forth such a reason, the employee must then prove by a preponderance of the evidence that the reason was a pretext for discrimination. The District Court had granted summary judgment to UPS under this standard, finding that Young could not establish a prima facie case because she could not show that similarly situated employees were treated differently. According to the District Court, those injured on-the-job, or who qualified under the ADA, or who were unable to work due to lack of a commercial license, simply were not relevant comparators. The Fourth Circuit agreed. But the Court did not.
The second provision of the PDA requires that pregnant women be treated "the same" as "other persons" who are "similar in their ability or inability to work." Thus, explained the Court, the key question is whether the categories of people being treated differently are similar "in their ability or inability" to work; not in every other category, such as how they were injured. Here, Young provided evidence that many employees in the three categories given accommodation had similar lifting restrictions. The defendant can then point to a legitimate, nondiscriminatory reason for the different treatment, but it can't merely be cost savings or inconvenience. An example of a legitimate reason might be treating employees with seniority differently or treating those with hazardous jobs differently than those with desk jobs. Finally, and most critically, an employee can get to a jury on the issue of pretext if she can show that the policy imposes a substantial burden on pregnant women and that the employer's nondiscriminatory reason is not sufficiently strong to justify the burden, thus raising an inference of discrimination. (The Court emphasized that this new test applies only to PDA same-treatment claims, and not to other Title VII claims.) A plaintiff can establish a substantial burden by showing that the employer accommodates a large percentage of non-pregnant workers, while failing to accommodate a large percentage of pregnant workers. Here, Young presented evidence that, if accepted, would establish that UPS accommodated a large percentage of non-pregnant workers. She also presented evidence of a supervisor testifying that lifting restrictions were only a problem with pregnancies. For the Court, this was enough to reach the jury.
Justice Alito concurred in the judgment, but wrote separately to set out the test he would have used (if he could have garnered a majority) under the "same treatment" prong of the PDA. First, Alito would ensure that only employees in the same types of jobs are considered when determining whether pregnant women are treated "the same" as "other" employees. Justice Alito also would conclude that pregnant employees are not similar in relation to their ability or inability to work "if they are unable to work for different reasons." Under this interpretation, "two groups of employees are not similar in the relevant sense if the employer has a neutral business reason for treating them differently." If an employer has a truly neutral business justification for the differential treatment, then Alito would not probe behind it. Here, UPS had a legitimate reason to treat employees injured on the job different because it otherwise would have been required to pay worker's compensation for them. Similarly, UPS was entitled to treat those protected by the ADA differently. Justice Alito was not so sure, though, that the accommodation for those who lost their commercial drivers' license was justifiable. The evidence did not show that such drivers were capable of performing more tasks than Young would have been with accommodation.
Justice Scalia, joined by Justices Kennedy and Thomas, dissented. In their view, the PDA simply intended to make discrimination based on pregnancy a form of sex discrimination under Title VII and the "same treatment" clause simply clarified what that meant in practice (i.e., that when a pregnant woman was limited in her ability to work, she would be compared to similarly limited individuals, not unrestricted employees). The dissenters would have found UPS's policies facially neutral and therefore rejected Young's claim. They chastised the majority for crafting a "new law that is splendidly unconnected with the text and even the legislative history of the Act" and for unhelpfully muddling the distinction between disparate impact and disparate treatment claims.
That takes care of last week. This week began with a near-handful of cert grants and two per curiam GVRS. In Grady v. North Carolina (14-593), the Court held that the Fourth Amendment is implicated when a State installs a monitoring device on an individual's body pursuant to a civil program for recidivist sex offenders. Torrey Dale Grady, an admitted recidivist sex offender, argued that North Carolina's civil monitoring program, which required him to wear a tracking device at all times for the rest of his life, violated his Fourth Amendment right to be free from unreasonable searches and seizures. The North Carolina Court of Appeals rejected his challenge, primarily on the ground that the program was civil, not criminal. The Supreme Court granted the writ, vacated, and remanded, noting that "[i]t is will settled . . . that the Fourth Amendment's protection extends beyond the sphere of criminal investigations." Inasmuch as the Court has previously held that the installation of a GPS device on a target's vehicle constitutes a search under the Fourth Amendment, it follows that the installation of a tracking device on an individual's body must also amount to a search. The Court remanded, however, for a determination of whether the search was reasonable under the circumstances.
Woods v. Donald (14-618) found the Court issuing a familiar reprimand (habeas relief may only be granted when a state-court decision is contrary to clearly established federal law as determined by the Supreme Court) to a familiar target (the Sixth Circuit) prompting a familiar lament by yours truly (why not clearly establish the law now?).
In United States v. Cronic (1984), the Court held that, where a defendant is denied counsel at a "critical stage of his trial," courts may presume that a defendant has suffered unconstitutional prejudice under the Strickland standard for assessing claims of ineffective assistance of counsel. Here, Cory Donald's counsel stepped out during a portion of the trial when evidence relating to telephone calls made among his co-defendants was presented. Following his conviction, Donald appealed, arguing that his attorney's absence during this ten-minute period denied him his Sixth Amendment right to effective assistance of counsel. The Michigan state courts rejected his claim, but the District Court granted the Writ. The Sixth Circuit affirmed, holding that the Michigan court's decision was contrary to and an unreasonable application of the Supreme Court's decision in Cronic.
The Court GVR'd, As it has stressed on multiple occasions this term (see Glebe v. Frost (14-95); Lopez v. Smith (13-946)), for a principle to amount to "clearly established law" for federal habeas purposes, it must be expressly grounded in the precedent of the Supreme Court (not the Circuits) and be based "only the holdings, as opposed to the dicta, of this Court's decisions." Moreover, by "unreasonable application" of clearly established federal law, the Court means really unreasonable: "To satisfy this high bar, a habeas petitioner is required to ‘show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Anything less would violate principles of "comity and federalism."
Here, the Michigan Court of Appeals' decision was not contrary to any clearly established holding of the Supreme Court, because the Court has never addressed whether Cronic applies to an attorney's absence during a period of trial that concerns only codefendants. "Because none of our cases confront the specific question presented by this case, the state court's decision could not be ‘contrary to' any holding from this Court." Of course, this case "confront[s] the specific question presented by this case." Might the Court at least take the opportunity to "clearly establish" what the law is, so that, next time a defense attorney takes a powder during an apparently inconsequential portion of trial, the lower courts (state and federal) will know what to do? Nah. "Because we consider this case only in the narrow context of federal habeas review, we express no view on the merits of the underlying Sixth Amendment principle." Doubtless, the next time a state court confronts this particular question, it will appreciate the "respect" the Supreme Court has shown it by refusing to provide the answer.
Now, on to the cert grants:
Kansas v. Carr (14-449 & 14-450) and Kansas v. Gleason (14-452) each ask whether the Eighth Amendment requires that a capital sentencing jury be affirmatively instructed that mitigating circumstances need not be proved beyond a reasonable doubt. Kansas v. Carr further asks whether the trial court's decision not to sever the sentencing phase of two co-defendant brothers' trial violated the Eighth Amendment right to an individualized sentencing.
Montanile v. Board of Trustees of NEIHBP (14-723) asks whether an ERISA fiduciary may recover an alleged overpayment of plan benefits through an equitable lien where the beneficiary no longer has possession and control over the funds at issue.
That'll do it for now. The Court handed down one new decision this morning, Armstrong v. Exceptional Child Center (14-15), on whether the Supremacy Clause gives Medicaid providers a private right of action to enjoin the state action as being preempted by Medicaid, even when the Medicaid statute itself provides no such right of action. The short answer is "no," but we'll be back soon with a more fulsome summary of that case and whatever else the Court throws our way.