Supreme Court Update: Shelby County v. Holder (12-96), Koontz v. St. Johns River Water Management District (11-1447), and Adoptive Parents v. Baby Girl (12-399)
Greetings, Court fans!
While the media focuses on today's same-sex marriage decisions (we'll bring you more on those soon!), we're back to bring you more detail on Shelby County v. Holder (12-96), yesterday's Voting Rights Act decision, as well as Koontz v. St. Johns River Water Management District (11-1447), a land-use Takings decision that may have far-reaching consequences, and Adoptive Parents v. Baby Girl (12-399), on the application of the Indian Child Welfare Act to non-custodial biological fathers.
The Chief authored the opinion of the Court in Shelby County v. Holder (12-96), striking down Section 4 of the Voting Rights Act of 1965 in one of the most widely anticipated decisions of the Term. Before we get to the details of the 5-4 decision, we offer a brief primer on the Voting Rights Act. Sections 2, 4, and 5 of the Act are the central players. Section 2 prohibits any voting standard, practice or procedure that has a discriminatory result, and may be enforced by private plaintiffs or the government; it is a permanent fixture in the Act, does not require renewal, and was not at issue in Shelby County. Section 5 sets forth a preclearance procedure, pursuant to which any "covered jurisdiction" must preclear any changes to "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting" by demonstrating to the Attorney General or to a three-judge panel of the U.S. District Court for the District of Columbia that any proposed voting change does not have the purpose and will not have the effect of racial discrimination. Section 4 applies the preclearance requirements of § 5 only to certain states and political subdivisions. When Congress passed the Act, these "covered" jurisdictions were identified as those that had, as of 1964, maintained a test or device as a prerequisite to voting and that had less than a 50 percent voter registration or turnout in the 1964 presidential election; the list included six southern states, several North Carolina counties, and one county in Arizona. Although §§ 4 and 5 were initially slated to expire after five years, Congress reauthorized them in 1970 for five years, 1975 for seven years, 1982 for 25 years, and again in 2006 for an additional 25 years. The 1975 reauthorization changed the coverage formula – embodied in § 4(b) – to include all jurisdictions that had a voting test and also had less than 50 percent voter registration or turnout in the 1972 federal election – a change that added three states and many additional counties to the list of covered jurisdictions. The 1982 and 2006 reauthorizations did not change the § 4(b) coverage formula, which remained based on 1972 data.
Now, on to the case before the Court. In 2010, Shelby County, Alabama, a covered jurisdiction, sought a declaratory judgment invalidating § 4(b) as well as Section 5 as facially unconstitutional. The district court concluded that the evidence before Congress in 2006 was sufficient to justify reauthorizing § 5 and maintaining the § 4(b) coverage formula. After a detailed analysis of the record before Congress, the D.C. Circuit affirmed 2-1 after concluding that litigation initiated under § 2 was insufficient to bar voting discrimination in the covered jurisdictions and that preclearance pursuant to § 5 remained necessary. With respect to § 4(b), the D.C. Circuit found the coverage formula constitutional because it "single[d] out the jurisdictions in which discrimination is concentrated." Judge Williams dissented, finding § 4(b) "irrational" and unconstitutional.
The Court reversed. Grounding the decision in federalism principles, the Chief framed the Court's opinion with the Tenth Amendment's preservation of state sovereignty, the states' retained power to regulate elections, and the "fundamental principle of equal sovereignty" among the States. The Court noted that preclearance – which affects only nine states as well as subdivisions in a few others – "sharply departs from these basic principles," requiring one state to wait months and years to plead its case for a law change its neighbor could enact and implement immediately. When the Court first upheld the Voting Rights Act in South Carolina v. Katzenbach (1966), it found that such a departure was justified by "the blight of racial discrimination in voting," while noting that the "extraordinary" Act was meant to be temporary and that the coverage formula made sense based on recent evidence before Congress. The Court now concluded that things have changed. Voter turnout and registration rates in covered jurisdictions are way up from their lows in the 1960s, blatant discrimination is rare, and minority candidates often win elections. Congress acknowledged these improvements and more when it reauthorized §§ 4 and 5 in 2006, yet it did not ease restrictions in § 5 (in fact, it expanded them) or narrow the reach of the § 4(b) coverage formula.
Against this factual backdrop, the Court turned its critical eye on § 4(b). In 1966, the coverage formula "looked to cause (discriminatory tests) and effect (low voter registration and turnout), and tailored the remedy (preclearance) to those jurisdictions exhibiting both." Forty years later, the statute's "current burdens" likewise had to be justified by "current needs," and disparate geographic treatment could stand only if "sufficiently related to the problem that it targets." Under that test, the majority determined that the coverage formula – based on data from the 1960s and 1970s and practices long banned – failed. "In 1965, the States could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics. Congress based its coverage formula on that distinction. Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were." The Court criticized the Government for "not even attempt[ing] to demonstrate the continued relevance of the formula to the problem it targets," and for ignoring "current political conditions" in favor of comparisons Congress made among the states in 1965 – comparisons that "reflected the different histories of the North and South" through slavery, the Civil War, and Jim Crow, but that couldn't demonstrate a "current need" for a system that treats states differently decades later. The Fifteenth Amendment – the Constitutional basis for the Voting Rights Act – "is not designed to punish for the past; its purpose is to ensure a better future."
Although the Court thus struck down the current coverage formula embodied in § 4(b), it did not strike down § 5, and left at least a theoretical door open for Congress to craft a formula to single out future covered jurisdictions in a way that would pass constitutional muster. "Congress may draft another formula based on current conditions. Such a formula is an initial prerequisite to a determination that exceptional conditions still exist justifying such an ‘extraordinary departure from the traditional course of relations between the States and the Federal Government.' . . . Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions."
Justice Thomas joined the Court's opinion in full but also issued his own concurrence to explain that he would have gone one step further and struck down § 5.
Justice Ginsburg offered her third dissent of the week, joined (also for the third time this week) by Justices Breyer, Sotomayor, and Kagan. The dissent accused the majority of usurping Congress' authority to enforce the Fifteenth Amendment, noting that both houses of Congress approved the 2006 reauthorization overwhelmingly. Although the majority itself admitted that "voting discrimination still exists; no one doubts that," it "terminate[d] the remedy" – preclearance – "that proved to be best suited to block that discrimination." With preclearance at its core, the dissenters averred that the Voting Rights Act has been "one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our Nation's history," bringing "dramatic changes in the realization of minority voting rights," though it "surely has not eliminated all vestiges of discrimination against the exercise of the franchise by minority citizens." As evidence of the continuing need for preclearance, the dissent cited many voting law changes proposed by covered jurisdictions but not approved by the Attorney General, as well as various "second-generation barriers" – accomplished by gerrymandering, the adoption of at-large voting systems in cities, and annexation of majority-white areas – that aim to reduce the impact of minority votes without directly attempting to block ballot access. Noting significant progress in eliminating first-generation barriers to ballot access, Congress – which compiled a 15,000 page record when considering reauthorization in 2005 and 2006 – expressly found that second-generation barriers continued to exist alongside "racially polarized voting" in the covered jurisdictions. Congress concluded that "without the continuation of the Voting Rights Act of 1965 protections, racial and language minority citizens will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last 40 years."
To the dissent, Congress' determinations were entitled to considerable deference. McCulloch v. Maryland (1819) articulated the scope of Congress' powers under the Necessary and Proper Clause thus: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." (Emphasis in dissent.) To the dissenters, when Congress acts to enforce the right to vote free from racial discrimination, the correct question for the Court should be (and has been, under Katzenbach) whether Congress has rationally selected appropriate means to reach a legitimate end – no more. In their view, Congress' reauthorization of the preclearance provisions easily satisfied the standard set forth in McCulloch and was an "appropriate" means "plainly adapted to" a legitimate constitutional end, as demonstrated by the voluminous record before Congress. Furthermore, Congress acted within its authority when it declined to alter the coverage formula in § 4(b). The covered jurisdictions "have a unique history of problems with racial discrimination in voting," consideration of which was appropriate, and have been the subject of a disproportionate number of successful § 2 lawsuits in the past 25 years. The dissent took the majority to task for ignoring the record amassed by Congress, for entertaining a facial challenge to the Act in the first place, and for invoking the doctrine of equal sovereignty when Katzenbach limited that doctrine to the terms upon which states are admitted into the Union. To the dissenters, "[t]he sad irony of today's decision lies in its utter failure to grasp why the VRA has proven effective. The Court appears to believe that the VRA's success in eliminating the specific devices extant in 1965 means that preclearance is no longer needed. . . . In truth, the evolution of voting discrimination into more subtle second-generation barriers is powerful evidence that a remedy as effective as preclearance remains vital to protect minority voting rights and prevent backsliding."
We move next to a decision released to far less fanfare yesterday, but with potentially substantial practical consequences. The conventional wisdom has long held that local land use decisions are the stuff of local law, to be worked out in town halls and state courts. In the late 1980s and early 1990s, in a pair of cases called Nollan v. California Coastal Comm'n and Dolan v. City of Tigard, the Supreme Court began to push back against that conventional wisdom, holding that the Takings Clause is violated when conditions on a land-use permit lack a "nexus" and "rough proportionality" to the proposed land use. Now, in Koontz v. St. Johns River Water Management District (11-1447), a 5-4 majority of the Court may have toppled the conventional wisdom entirely.
Someone sold Coy Koontz 15 acres of Florida swampland. (Apparently the Brooklyn Bridge was not for sale.) Koontz wanted to build there, so he sought permits from the local water management district. Florida law requires would-be wetlands builders to offset environmental damage by helping wetlands elsewhere. Koontz proposed developing 4 acres and giving the District a conservation easement over the other 11 acres. The District suggested that he revise his application to shrink his development to 1 acre, deeding a conservation easement over the remaining 14. Or if he preferred, he could keep his 4-acre development plan if he paid for contractors to replace culverts or fill in ditches on some District-owned wetlands a few miles away. Koontz declined, the District rejected his permit application, and Koontz sued, claiming that the denial violated his federal constitutional rights.
The Florida Supreme Court concluded that there couldn't be a Taking if nothing was taken, and nothing was taken here, since the government merely denied a permit. Justice Alito, writing for the Court, disagreed: "Extortionate demands for property in the land-use permitting context run afoul of the Takings Clause not because they take property but because they impermissibly burden the right not to have property taken without just compensation." On that point all nine justices agreed.
The Court split sharply on whether a government requirement that an applicant pay money for a permit can ever provide the basis for a Takings claim. The District had given Koontz the option of approving his application so long as he wrote a check, paying for culvert-replacement and ditch-filling on District land a few miles from Koontz's parcel. The Court held that "so-called ‘monetary exactions' must satisfy the nexus and rough proportionality requirements of Nollan and Dolan," just like exactions of easements. Otherwise, the Court reasoned, land use officials could evade Nollan and Dolan by asking for money instead of easements, leaving land-use permit applicants – who are "especially vulnerable to th[is] type of coercion" – subject to "extortionate demands" by land use officials.
Justice Kagan, writing for the dissenters, thought that a requirement to pay money could never count as a taking. To begin with, there's a question of boundaries: when is a requirement to pay money a lawful tax, and when is it an unlawful taking? Moreover, the holding "threatens significant practical harm," extending the "difficult" and "perplexing" standards of the Takings Clause "into the very heart of local land-use regulation and service delivery." A vast world of local government permit fees – fees intended to mitigate increased traffic or pollution, fees intended to mitigate environmental harm, fees intended to cover the costs of supplying sewer lines or water lines to new developments, fees for liquor licenses – are now all subject to challenge as Takings violations. "All now must meet Nollan and Dolan's nexus and proportionality tests. The Federal Constitution thus will decide whether one town is overcharging for sewage, or another is setting the price to sell liquor too high."
Even the specific issue in this case – conditioning permit approval on the payment of money – is an "utterly commonplace" occurrence, Justice Alito concedes for the majority. What's worse: a vulnerable property owner left at the mercy of a government's extortionate demands, or the federalization of local land use law? For the Court, it's the first. For the dissent, it's the second.
Finally, in Adoptive Parents v. Baby Girl (12-399), the Court interceded in a difficult child custody dispute. In a bitterly fractured decision, the Court held, 5-4 (or, more accurately, 3+1+1 to 3+1), that the Indian Child Welfare Act of 1978 (ICWA)—which was enacted to prevent the "breakup" of Indian families—does not apply to protect the rights of a parent who has never had physical or legal custody of the child. The Court thereby reversed the ruling of a South Carolina Family Court (affirmed by the South Carolina Supreme Court), which had awarded custody of then-27-month-old "Baby Veronica" (referred to as "Baby Girl" in the Court's opinions) to her biological father in late 2011.
The heart wrenching facts of the case did much of the work for the majority, which, led by Justice Alito, appealed to parental emotions right from the start. Baby Girl's biological parents, "Birth Mother" and "Biological Father," in the majority's parlance, were engaged when Baby Girl was conceived, but soon split up. In June 2009, Birth Mother sent Biological Father a text message asking whether he preferred to pay child support or relinquish his parental rights; he chose, via text, to relinquish his rights. Thereafter, Birth Mother put Baby Girl up for adoption and, working through a private adoption agency, selected "Adoptive Couple" to adopt Baby Girl. Knowing that Biological Father was part Cherokee, Birth Mother's attorney contacted the Cherokee Nation to determine whether Biological Father was formally enrolled. However, due to a misspelling of Biological Father's first name and misstating of his birth date, the Cherokee Nation was unable to confirm his membership. When Baby Girl was born September 15, 2009, Adoptive Couple, who had provided financial and emotional support to Birth Mother throughout her pregnancy, were there. The next morning Birth Mother signed forms relinquishing her parental rights and consenting to the adoption. Four months later, Adoptive Couple served Biological Father with notice of the pending adoption. Biological Father signed papers accepting service and stating that he was "not contesting adoption," but contacted a lawyer the next day to request a stay of the adoption proceedings. During those proceedings, Biological Father took a test confirming his paternity and sought custody of Baby Girl, stating that he had not intended to consent to the adoption.
Enter the ICWA, which was enacted in 1978 in response to a history of "abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually, in non-Indian homes." Mississippi Band of Choctaw Indians v. Holyfield (1989). The Act establishes federal standards to govern state-court child custody proceedings (including adoption placements) involving Indian children. Three provisions of the ICWA were at issue in here. First, under 25 U.S.C. § 1912(d), any party seeking involuntary termination of parental rights to an Indian child under state law must demonstrate that "active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." Second, under § 1912(f), a state court may not involuntarily terminate parental rights to an Indian child "in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." Finally, under § 1915(a), with respect to adoptive placements, "a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child's extended family; (2) other members of the Indian's tribe; or (3) other Indian families." Indian tribes, themselves, are empowered by the Act to alter that order or preference.
In the State custody proceedings, the Family Court found that Adoptive Couple had not carried the heightened burden under § 1912(f) of proving that Baby Girl would suffer serious emotional or physical damage if Biological Father had custody. The Court therefore denied the adoption petition and awarded custody to Biological Father. The South Carolina Supreme Court affirmed, adding that Adoptive Couple had also failed to show that "active efforts ha[d] been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family" as required by § 1912(d). Finally, it stated that, even if it had decided to terminate Biological Father's parental rights, § 1915(a)'s adoption-placement preference would have applied, presumably relegating Adoptive Couple down the order of preference.
The Supreme Court reversed. Though the majority accepted, for the sake of argument, that Biological Father was a "parent" (notwithstanding Adoptive Couple's primary argument to the contrary), it nevertheless held that he could not invoke the statute's protections because he'd never had physical or legal custody of the child. As the majority reasoned, "the primary mischief the ICWA was designed to counteract was the unwarranted removal of Indian children from Indian families due to the cultural insensitivity and biases of social workers and state courts." Thus, § 1912(f) only requires a heightened showing "that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child," and § 1912(d) requires remedial efforts to prevent the "breakup of the Indian family." In each instance, the majority reasoned, a preexisting custodial/familial relationship is presumed. Finally, the majority concluded that § 1915(a) had no bearing on the case because there were no alternative potential adoptive families for Baby Girl, so no "preference" applied. (Biological fathers do not benefit from § 1915(a)'s preference because they are not members of the child's "extended" family.) In sum, Justice Alito stressed that none of the provisions of the ICWA "creates parental rights for unwed fathers where no such rights would otherwise exist. Instead, Indian parents who are already part of an ‘Indian family' are provided" with the statute's protections. In contrast, when, as in this case, "the adoption of an Indian child is voluntarily and lawfully initiated by a non-Indian parent with sole custodial rights, the ICWA's primary goal of preventing the unwarranted removal of Indian children and the dissolution of Indian families is not implicated."
Justice Sotomayor penned a strident dissent, joined in full by Justices Ginsburg and Kagan and in part by Justice Scalia. She accused the majority of seizing on a minor term buried deep in ICWA's text (i.e. "continued custody") and working backwards from there to effectively reverse Congress's policy goal of stopping the placement of Indian children in non-Indian adoptive homes. Justice Sotomayor seized on a different portion of the statute, § 1903(1)(ii), which defined "termination of parental rights" to include "any action resulting in the termination of the parent-child relationship." Whether or not Biological Father had custodial rights to Baby Girl, he certainly had a "parent-child relationship" which would be "terminat[ed]" by the adoption proceedings. Thus, he should be protected by the ICWA, which seeks to prevent the termination of Indian parental rights. "Moreover," she warned, "notwithstanding the majority's focus on the perceived parental shortcomings of Birth Father, its reasoning necessarily extends to all Indian parents who have never had custody of their children, no matter how fully those parents have embraced the financial and emotional responsibilities of parenting." In sum, Justice Sotomayor argued that the majority had turned § 1912 upside down in order to reach a conclusion contrary to Congress's express purpose of preserving familial bonds between Indian parents and their children. While it was undeniably traumatizing for a 27-month-old to be removed from the only family she'd known, Justice Sotomayor observed that Baby Girl had now lived with her father for 18 months and "the anguish this case has caused will only be compounded by today's decision."
Justice Scalia joined in Sotomayor's dissent "except for one detail." To Scalia, the reference to "continued custody" in § 1912(f) did not necessarily require preexisting custody as opposed to continuous future custody. He therefore found no textual obstacle to reading the ICWA to protect Biological Father's rights. "While I am at it," he went on to add another thought: "The Court's opinion . . . needlessly demeans the rights of parenthood." In Justice Scalia's view, "[t]his father wants to raise his daughter, and the statute amply protects his right to do so. There is no reason in law or policy to dilute that protection."
The dissent's policy arguments seemed to resonate with Justice Breyer, who nevertheless joined the majority opinion. He emphasized in a separate concurrence, however, that the case "does not involve a father with visitation rights or a father who has paid all of his child support obligations" nor does it involve "special circumstances such as a father who was deceived about the existence of the child or a father who was prevented from supporting his child." Justice Breyer also raised a question—left unanswered—regarding § 1915(a)'s "adoptive preference." Because § 1915(c) allows the "Indian Child's tribe" to establish a different order of preference, it is conceivable, Justice Breyer hypothesized, that a Tribe could establish an order of preference that favors absentee fathers.
The fifth vote in the majority came from Justice Thomas, but for entirely unique reasons. Justice Thomas wrote separately to observe that both sides had offered reasonable interpretations of the ICWA, but that only the majority's reading avoided a thorny constitutional issue. That issue was not the one pressed by the Adoptive Parents (i.e. equal protection), but rather Justice Thomas's view that the ICWA is unconstitutional because Congress simply has no power to regulate domestic relations, even as related to Indian Tribes. In Thomas's view, the Indian Commerce Clause only gives Congress the power to regulate commerce—that is, commercial interactions—with tribes, not individual Indians. Because the ICWA does not regulate commerce and does not regulate Indian tribes as tribes, there is no basis, in Justice Thomas's view, for Congress's assertion of authority over the custody proceedings. Because the majority found that the ICWA didn't apply for other reasons, Justice Thomas joined that opinion, citing the doctrine of constitutional avoidance.
At the end of the day, the dispute between the majority and principal dissent turned on their competing interpretations not only of ICWA's text, but its purpose. To the majority, because the ICWA was enacted to prevent the "breakup" of families, it had no bearing where there was no existing family to protect from breaking up. To the dissent, the Act had an equally important purpose of promoting the "tribe's interest in its next generation of citizens," which should not be evaded when a non-Indian parent voluntarily decides to put an Indian child up for adoption. Meanwhile, a 3½ year old is stuck in the middle, still unsure who her parents are. The decision did not award custody to Adoptive Parents and, as Justice Sotomayor observed, on remand any member of Baby Girl's "extended family" could intervene and invoke § 1915(a)'s adoption preference. And so the excruciating case will continue.
We'll be back again soon to wrap up the Term!
Kim, Jenny & Julie