Supreme Court Update: Department of Commerce v. New York (No. 18-966), Rucho v. Cause (No. 18-422), Mitchell v. Wisconsin (No. 18-6210)

June 28, 2019 Supreme Court Update

Greetings, Court Fans!

Earlier this month, in her annual report to the Second Circuit Judicial Conference , Justice Ginsburg remarked that, to that point, only 11 decisions of the term had produced 5-4 or 5-3 outcomes, but that she could “not predict that the relatively low sharp divisions ration will hold.” Everyone thought that hinted at some sharp 5-4 splits to come, as is common at the end of every term. Little did we know it would mean not just 5-4s, but 4+1 – 3+1s and . . . whatever this is:

That’s the nigh indecipherable vote breakdown in Department of Commerce v. New York (No. 18-966), otherwise known as the census case, where the Chief Justice wrote for a unanimous Court in setting forth the facts and holding at least some challengers to the inclusion of a citizenship question on the 2020 census had standing; for the other four conservatives in holding that the Secretary of Commerce’s decision to reinstate the citizenship question was supported by evidence in the Administrative Record; for everyone but Gorsuch and Alito in holding that the Secretary does not have unreviewable discretion about what questions to include on the decennial census questionnaire; and—most notably—for the four liberal Justices in holding that the Secretary’s articulated basis for including a citizenship question was pretextual and warranted remand to the agency for further explanation. That only took the Chief about 30 pages, so three other Justices decided to pitch in with opinions concurring and dissenting in one part or another, bringing the grand total to 92 pages of riveting admin law. We’ll try to give you the Cliffs Notes here.

As even the troglodytic surely know, this case involves the Secretary of Commerce’s decision to add a citizenship question to the 2020 census. The Constitution requires an “Enumeration” of the population every 10 years, to be made ‘in such manner” as Congress “shall by Law direct.” In the Census Act, Congress delegated to the Secretary of Commerce the task of conducting the decennial census. Between 1820 and 2000, all but one census asked at lest some of the population about their citizenship or place of birth. But in 2010, the citizenship question was moved from the census questionnaire to the American Community Survey, which is sent every year to a small sample of households. Many demographers applauded this decision because it would likely yield a more accurate enumeration of the population, since undocumented immigrants be less likely to fill out the survey accurately if it asked for their citizenship status. However, in March 2018, President Trump’s Commerce Secretary, Wilbur Ross, announced that he had decided to reinstate a citizenship question on the 2020 questionnaire. In a memo, Ross stated that the question was being added at the request of the Department of Justice, which sought citizenship data to use in enforcing the Voting Rights Act. A group of States, counties, cities, and advocacy groups filed suit in New York, claiming that the Secretary’s decision violated the Enumeration Clause, the Administrative Procedure Act, and the Equal Protection Clause. In June 2018, the Commerce Department submitted the Administrative Record, which included the materials Secretary Ross considered in making his decision. Shortly thereafter, however, the Government supplemented the record to include a new memo from the Secretary, stating that he had begun considering the addition of a citizenship question in early 2017, before he was sworn in. This suggested the Administrative Record might be incomplete, so the plaintiffs asked the District Court to compel the Government to complete the administrative record. The District Court granted that request and the Government submitted additional materials showing that the Secretary began exploring reinstatement of the citizenship question shortly after his 2017 confirmation, had attempted without success to elicit requests for citizenship data from other agencies, and then finally persuaded DOJ to make the request (after it had initially refused). In light of all this, the District Court authorized discovery outside the Administrative Record, including a deposition of Secretary Ross. (The Supreme Court stayed that decision pending review, but it was ultimately mooted when the District Court issued a decision that did not rely on extra-record evidence.) After a bench trial, the District Judge (Wiggin’s own Jesse Furman, as we’ll never tire of reminding you) issued a 277-page decision ruling that the Secretary’s action was arbitrary and capricious, based on a pretextual rationale, and in violation of the Census Act. However, he dismissed the equal-protection claim. The Government appealed to the Second Circuit and filed a petition for certiorari before judgment, which the Court granted, in deference to the Government’s insistence that the final census questionnaire needed to be finalized by the end of June.

All along, it was pretty clear the Chief Justice would have the opinion in Ross, but few expected him to side with the liberal justices in concluding, ultimately, that the Secretary’s stated reason for adding the citizenship question was pretextual. Before he got that far, however, the Chief addressed several other questions, joined by a rotating cast of fellow Justices. First, writing for a unanimous Court, he concluded that at least some of the plaintiffs had standing to challenge the Secretary’s action. Standing requires a concrete injury, and the Court agreed that diminishment of political representation, loss of federal funds, degradation of census data, and diversion of resources, all fit the bill, and that these harms were fairly traceable to the Secretary’s actions. At the next stop, the liberals stepped off and the Chief wrote on behalf of the conservatives in holding that, contrary to the District Court’s judgment, neither the Enumeration Clause nor the Census Act provided a basis for setting aside the Secretary’s decision. The Enumeration Clause gives Congress virtually unlimited discretion in conducting the decennial “actual Enumeration.” “In light of the . . . long practice under the Enumeration Clause,” a conservative majority concluded that “it permits Congress, and by extension the Secretary, to inquire about citizenship on the census questionnaire.” At that point, Justices Gorsuch and Alito hopped off and the liberals climbed aboard again to join the Chief in holding (7-2) that the Secretary’s decision was judicially reviewable under the Administrative Procedure Act. The APA includes a basic presumption of judicial review, permitting courts to set aside agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Although judicial review is not available where the relevant statute precludes it, the Court concluded that the Census Act does not give the Secretary limitless discretion, such that judicial review would be precluded. The liberals hopped off again at the next stop, where Gorsuch and Alito joined up with the other conservatives again to hold that the Secretary’s decision to reinstate the citizenship question was supported by the Administrative Record. Although the Census Bureau itself had predicted that adding the citizenship question would depress census response rates, particularly among noncitizen households, it was reasonable for the Secretary to conclude that there might be other causes for the depression, including that noncitizen families are less likely to respond to the questionnaire with or without a citizenship question. As the Court stressed, “the choice between reasonable policy alternatives in the face of uncertainty was the Secretary’s to make.” The conservative majority also concluded that the Secretary did not violate the Census Act by attempting to collect citizenship data using direct inquiries, when it was possible to provide the DOJ with the needed data from administrative records alone.

Then the Chief took a “left” turn. All the other conservatives jumped off and the liberals clambered back on to join Roberts in holding that the District Court properly concluded that the Secretary’s decision must be set aside because it rested on a pretextual basis. The Chief started with four settled propositions. First, in order to permit meaningful judicial review, an agency must disclose the basis of its action. Second, in reviewing agency action, a court is ordinarily limited to evaluating the agency’s contemporaneous explanation in light of the existing administrative record. Third, a court may not reject an agency’s stated reason for acting simply because the agency might have had other unstated reasons. But finally, if there is a “strong showing of bad faith or improper behavior,” courts recognize an exception to the foregoing rules and permit inquiry into the mental processes of administrative decisionmakers, including extra-record discovery. That’s the exception that Judge Furman invoked below. The Chief opined that Judge Furman’s invocation of the exception was premature, but ultimately justified in light of the expanded administrative record that ultimately was submitted. The new material showing that the Secretary had been considering the citizenship question for some time, justified the District Court’s decision to order extra-record discovery, even if that decision was not justified at the time it was made. And once the all the evidence, including extra-record evidence, was taken into account, it was clear that the Secretary was determined to reinstate the citizenship question ever since he assume office and that the sated basis for the action was pretextual. While it “is hardly improper for an agency head to come into office with policy preferences and ideas,” “viewing the evidence as a whole, we share the District Court’s conviction that the decision to reinstate a citizenship question cannot be adequately explained in terms of the DOJ’s request for improved citizenship date a to better enforce the VRA.” After recounting some of this evidence, the Chief (joined by the four liberals) concluded that “[a]ltogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision.” The APA requires a reasoned explanation for agency action, and “[w]hat was provided here was more of a distraction.” Accordingly, after a wild ride, the Court affirmed the judgment of the District Court insofar as it found the explanation for the Secretary’s decision was pretextual and warranted remand to the agency for further explanation.

Given the twists and turn of the “opinion of the Court,” every Justice but the Chief concurred in part and dissented in part. Justice Thomas filed an opinion, joined by Gorsuch and Kavanaugh, espousing his view that the Court’s “only role in this case is to decide whether the Secretary complied with the law and gave a reasoned explanation for his decision.” A majority answered those questions in the affirmative, so that should be the end of the matter. Thomas lamented the Court’s “unprecedented departure” from the practice of deferring to discretionary decisions by federal agencies, and warned that that the Court’s decision to go along with the challengers and scratch below the service of the Secretary’s proffered explanation would set a dangerous precedent, inviting “political opponents of executive actions  to generate controversy with accusations of pretext, deceit, and illicit motives,” that the courts will be required to sort out. Justice Alito also penned his own dissent, arguing that reinstating the citizenship question should have been entirely uncontroversial. After all, the UN recommends including citizenship questions on census surveys and most other countries do it (as the U.S. for most of its history). Alito would have concluded that the decision whether to add a citizenship question or not was squarely within the discretion of the Commerce Secretary and beyond judicial review. (Gorsuch apparently shares that view, having declined to join Part IV-A of the Court’s opinion, but he did not join Alito’s dissent, either.)

Justice Breyer penned a dissent for the more liberal justices, essentially signing on to the opposite portions of the Chief’s opinion from the conservatives. Breyer and the liberal dissenters agreed that the case should be sent back to the Commerce Department but argued that, even if the Secretary’s decision to add the question wasn’t pretextual, it still violated the APA because it wasn’t supported by evidence in the Administrative Record. That evidence, in the dissenters’ view showed that adding a citizenship question would make the census (including the citizenship data gathered from it) less accurate, not more.

All in all, the Chief’s opinion is a loss for the Commerce Secretary and the President. However, it is still technically possible that the Commerce Department could provide a valid reason for adding the citizenship question. The case was remanded to the agency for further explanation. Given the Court’s holding (by the conservatives) that the Administrative Record supports the decision to add a citizenship question, it would seem that a less pretextual explanation would pass muster. However, all along the Government has insisted that the questionnaire must be finalized by June 30. So, as of 6:30 on June 28th, we’re calling it. (For now.)

If the Chief veered left in the census case, he took a sharp right (jurisprudentially) in the partisan gerrymandering case, Rucho v. Cause (No. 18-422). There, after seemingly coming so close last term to holding that courts could apply manageable standards to police hyperpartisan districting schemes, The Nine (with a potentially decisive substitution of Kavanaugh for Kennedy) stepped back and firmly held that partisan gerrymandering claims present political questions beyond the reach of the federal courts.

Writing for the other conservatives, the Chief began with a terse overview of the facts: two sets of voters in North Carolina and Maryland filed suits challenging their States’ congressional districting maps as unconstitutional partisan gerrymanders. The NC plaintiffs claimed the State’s plan discriminated against Democrats, while the MD plaintiffs claimed their State’s plan discriminated against Republicans. (You have to read the dissent to learn just how overtly discriminatory these plans were.) In each case, the plaintiffs alleged violations of the First Amendment, the Equal Protection Clause, the Elections Clause, and Article I, section 2 of the Constitution, which governs how the membership of the House of Representatives should be selected. In each case, a three-judge district court agreed with the plaintiffs that the challenged maps resulted from an unconstitutional partisan gerrymander, and the defendant’s appealed directly to the Supreme Court.

At the Supreme Court, an age-old conundrum returned to the fore. While it is the province and duty of the judicial branch to “say what the law is,” the Chief noted that sometimes, the law is that the Judiciary cannot entertain a claim because it presents a nonjusticiable “political question.” Chief among the untouchable political questions are those that lack “judicially discoverable and manageable standards for resolving” them. In the majority’s view, partisan gerrymandering presented such a question. To begin with, although the Framers were aware of partisan gerrymandering when they drafted the Constitution, they nevertheless assigned to state legislatures the power to prescribe the “Times, Places and Manner of holding Elections” and gave Congress the power to “make or alter” any such regulations. While it is true that the courts have waded into the political thicket in certain electoral cases—namely “one person one vote” and racial gerrymandering, the Chief insisted that those are issues that could be addressed using basic equal-protection principles. Partisan gerrymandering claims, on the other hand, are more difficult because—while no amount of racial discrimination is permitted in districting, “a jurisdiction may engage in constitutional political gerrymandering.” To hold that legislators cannot take partisan interests into account at all when drawing district lines would countermand the Framer’s decision to entrust the lien-drawing to political entities. So if some amount of partisanship in districting is necessarily permissible, the “central problem,” as the Court has previously stated, “is determining when political gerrymandering has gone too far.” The Chief Justice insisted that—notwithstanding many years of judicial effort—there is still simply now judicially manageable means of making that determination. None of the tests that various parties and courts have proposed for evaluating partisan gerrymandering claims meets the need for a limited and precise standard that is judicially discernible and manageable. The North Carolina court’s test, for example depended in part on determining the “predominant intent” behind the redistricting; that can’t be the test, because some amount of partisan intent is constitutionally permissible. Others have suggested that a First Amendment free-association test would be manageable (and indeed, last term it appeared that Justice Kagan was hoping Justice Kennedy could be persuaded of that approach), but the Chief argued that the First Amendment analysis still offers no clear and manageable way of distinguishing permissible from impermissible partisan motivation. He also rejected another approach proffered by Justice Kagan in dissent, of using a State’s own districting criteria as a baseline from which to measure how extreme a partisan gerrymander is. Doing that would still leave open the question of how much political motivation and effect is too much. (All along, the majority never questioned the basic premise that some amount of partisanship must be permissible, which is not self-evident.) Finally, the Chief rebuffed a proposed standard based on the Elections Clause and Article I, §2, because it was already rejected in an earlier case.

Although the Chief Justice and the other conservatives appeared to have put a stake through the heart of the movement against partisan gerrymandering, he urged good-governance folks to chill out. While he acknowledged that excessive partisanship in districting “leads to results that reasonably seem unjust,” he stressed that the Court’s decision “does not condone excessive partisan gerrymandering,” nor “condemn complaints about districting to echo into a void.” Instead, he argued (perhaps a bit optimistically), State legislatures and Congress (as well as state Supreme Courts) still had a role to play in policing excessive partisanship in districting, as contemplated by the Election Clause. He pointed to some examples of state legislatures creating independent districting commissions or banning partisan gerrymandering entirely. These legislative approaches to the issue are hat the Framers had in mind when they assigned to Congress and to State legislatures the power to adopt regulations relating to elections. By contrast, while it “is emphatically the province and duty of the judicial department to say what the law is,” the Chief concluded that “in this rare circumstance, that means our duty is to say ‘this is not law.’”

Well, let us tell you, Justice Kagan was not thrilled with this result. Nor were the other three liberal justices joining her strident dissenting opinion. Kagan, as noted above, took pains to try to bring Justice Kennedy to her side with strategic questions and voting in the two gerrymandering cases the Court heard last term. Having expended that capital to avoid a substantive decision last term, only to have the Court, with a new majority, take a giant step backward on the question, must have been a bitter pill to swallow. As she wrote, “the partisan gerrymanders here have debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.” She proceeded at some length to discuss the sausage-making behind the two challenged maps—which allowed Republicans to occupy 9 of North Carolina’s 13 seats in the House of Representatives despite that fact that Republicans accounted for just over 50% of the statewide, and allowed Democrats to occupy 7 of Maryland’s 8 seats despite never having received more than 65% of the statewide vote. “Is that how American democracy is supposed to work?” she asked. “I have yet to meet the person who thinks so.” Importantly, Justice Kagan stressed, the majority did not actually dispute that partisan gerrymandering debases American democracy; instead, it acknowledged a problem of constitutional dimension, but then threw up its hands instead of offering a solution. “[T]he only way to understand the majority’s opinion is as follows: In the face of grievous harm to democratic governance and flagrant infringements on individuals’ rights—in the face of escalating partisan manipulation whose compatibility with this Nation’s values and law no one defends—the majority declines to provide any remedy. For the first time in this Nation’s history, the majority declares that it can do nothing about an acknowledged constitutional violation because it has searched high and low and cannot find a workable legal standard to apply.” That . . . doesn’t seem quite right. But, in any event, Justice Kagan was quick to point out that the lower courts basically have settled on a judicially manageable standard for adjudicating partisan gerrymandering claims, which as been used to strike down both Democratic and republican districting plans. Both courts in this case, for example, used essentially the same three-part test, consisting of intent, effects, and causation. The majority does not actually contest the findings that the lower courts made implementing this test, but instead says that state officials’ attempts to entrench their party power s perfectly “permissible.” That, Kagan insisted, is wrong. “[W]hen political actors have a specific and predominant intent to entrench themselves in power by manipulating district lines, that goes too far.” And the lower courts application of their test in these cases shows both just how far partisanship has gone, and how it can be manageably policed.

Justice Kagan also had little patience for the Chief’s cheerful suggestion that the political branches can take care of this. True, as the Chief pointed out, dozens of bills have been introduced in Congress to limit partisan gerrymandering. But “what all these bills have in common is that are not laws. The politicians who benefit from partisan gerrymandering are unlikely to change partisan gerrymandering.” As for the ballot initiatives that have created independent districting commissions, Justice Kagan couldn’t help but point out that the Chief is on the record saying those efforts are themselves unconstitutional. Fewer than half the Stats, in any event allow for ballot initiatives that can take this partisan gerrymandering out of the hands of those it benefits. But the majority’s richest suggestion, in Kagan’s view, was that state courts can police partisan gerrymandering. “[W]hat do those courts know that this Court does not?” she asked. “If they can develop and apply neutral and manageable standards to identify unconstitutional gerrymanders, why couldn’t we?”

The final decision of the term, Mitchell v. Wisconsin (No. 18-6210), was even more—if not so passionately—divided. By a 4+1–3+1 vote, the Court held that in general, administering a blood alcohol concentration (BAC) test on an unconscious person who appears to have been driving under the influence of alcohol does not violate the Fourth Amendment. The plurality opinion by Justice Alito (joined by the Chief and Justices Breyer and Kavanaugh) rested on the exigent circumstances exception to the warrant requirement. Justice Thomas provided the fifth vote, taking the broader position that, because of the dissipating nature of alcohol in the bloodstream, the constitution permits a BAC test whether or not the person is unconscious. Three of the dissenters would have held that all blood draws require a warrant, while Justice Gorsuch would have dismissed the write as improvidently granted, since none of this business about exigent circumstances was part of the cases as it was presented at the certiorari stage.

Following up on a report that petitioner Gerald Michell was driving drunk, the police arrested him based on a preliminary breath test. When he became unresponsive en route to the police station, the police brought him to the hospital instead.  He was unconscious by the time they arrived. The police had the hospital staff draw a blood sample, which showed a BAC that was close to three times the legal limit.  At his criminal trial, the court refused to suppress the BAC evidence, ruling that Mitchell was deemed to have consented to the BAC test under Wisconsin’s implied-consent law, which provides that driving on the state’s roads constitutes such consent if the person is believed to have been driving drunk. The Wisconsin Supreme Court affirmed.

The question presented to the Court in Mitchell’s cert petition was whether a statute like Wisconsin’s could operate to permit a warrantless blood draw of an unconscious person. But, writing for a plurality including the Chief, Kavanaugh, and Gorsuch, Justice Alito thought the issue was much simpler. “The bottom line is that BAC tests are needed for enforcing state laws that save lives.” His opinion, though, focused on the exigent circumstances doctrine rather that the State’s implied consent law. In doing so, he had to grapple with the Court’s previous decision in Missouri v. McNeely (2013), which held that the dissipating nature of blood alcohol levels is itself insufficient to create exigent circumstances allowing a BAC test without a warrant. Alito refined that ruling, holding that exigent circumstances do exist where, in addition to an arrestee’s fleeting BAC level, there is “some other factor” that takes priority over getting a warrant. Unconsciousness provides that other factor. An unconscious person will likely need immediate medical intervention, which could alter the BAC, and in many cases (such as serious car accidents) the police may have many “urgent tasks” that require them to delay seeking a warrant. Responding to the dissent’s argument that there was, in fact, time to get a warrant here, Justice Alito emphasized that he was not holding that the State had proved the presence of exigent circumstances in this case. Rather, his opinion established a “general rule for the police to follow” in an “entire category of cases – those in which a motorist believed to have driven under the influence of alcohol is unconscious and thus cannot be given a breath test.” He remanded to provide Mitchell the opportunity to prove that the “police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties. But he made it clear that in dealing with an unconscious drunk driver the police “may almost always order a warrantless blood test.”

Justice Thomas provided the fifth vote for the judgment, but did not join Alito’s opinion. He argued for a simpler, broader rule – that the natural metabolization of alcohol in the blood always creates exigent circumstances permitting a warrantless blood test. This rule is justified because “each passing minute eliminates probative evidence of the crime.” In his view, McNeely was wrongly decided and should be overruled, rather than leaving police and courts with the task of deciding whether some other pressing factor (in addition to dissipation) permits a warrantless BAC test.

Justice Sotomayor’s dissent (joined by Justices Ginsburg and Kagan) focused on the state’s concession in the courts below that there was in fact time to get a warrant before drawing Mitchell’s blood, and hence its concession that exigent circumstances did not support the warrantless BAC test. Reviewing McNeely and other related precedents, Sotomayor said the law was already clear: “Unless there is too little time to do so, police officers must get a warrant before ordering a blood draw.” The Wisconsin Supreme Court decision relied on the state’s implied consent law, not on the exigent circumstances doctrine, and there was no reason for the Supreme Court to refine that doctrine in this case.  The Court in McNeely refused to adopt a categorical rule that the natural dissipation of alcohol from the bloodstream created exigent circumstances allowing a warrantless blood draw, requiring a fact-specific inquiry instead. That approach, argued Sotomayor, continues to make sense.  Typically, there is some delay between a suspect’s arrest and the time the suspect is transported to a medical facility for a blood draw, and that may be enough time to get a warrant – particularly given the ability to apply for a warrant telephonically. Moreover, a person’s BAC dissipates slowly and predictably, so a warrant might be obtained before the BAC has dropped significantly, and experts can work backwards to determine the BAC at the time of the offense.  There is no basis, therefore, for adopting a categorical rule based on unconsciousness:  “an unconscious person’s BAC dissipates just as gradually and predictably as a conscious person’s does.”  And, if police officers face other critical duties and “are truly confronted with a ‘now or never’ situation,” the exigent circumstances exception will still allow for an immediate blood draw.

Justice Gorsuch also dissented. While he’s been joining the liberal justices in many criminal cases this term, this time his opinion did not reach the merits. He pointed out that the case came to the Court on the issue of Wisconsin’s implied-consent law, not anything having to do with exigent circumstances. He therefore would have dismissed the petition as improvidently granted.

That’s more than enough for now. We’ve still got more decisions to summarize from earlier in the week, along with some new cert grants (including DACA, at long last), so it won’t be long before we come calling again.

Tadhg and Dave