Supreme Court Cases (and other interesting cases) - A Thread!

[TheRealJoeFish]

Heyyyyyy everybody!  Your friendly forum lawyer here!!!

On most days, instead of reading the news, I read the latest opinions from and news about the US Supreme Court (and other courts, when interesting/important).  ScotusBlog is a fantastic source for this, by the way. 

So, largely because I'm bored, and I enjoy writing about legal things, and I find it interesting, I decided to create this thread to discuss some of the important Supreme Court (and occasionally other court) cases that come down.  Feel free to check in from time to time; I'll update over the next couple of weeks with some of the more interesting cases from this term, and then I'll add as things come out.

Let me know if there are any particular court cases or questions thereabout you want to discuss. (Yes, yes, the travel ban cases, I'll get to those )

[TheRealJoeFish]

Here's one that came out yesterday. It's the first immigration/deportation case decided during President Trump's term.

Esquivel-Quintana v. Sessions
May 30, 2017
8-0, Opinion written by J. Thomas and joined by all other Justices

TL;DR: If you're a lawful permanent resident, being 20 or older and having sex with someone 16 or 17 years old isn't enough to get you kicked out of the country for "abuse of a minor."

Facts: Juan Esquivel-Quintana was a 20-year old Mexican Citizen and a lawful Permanent US Resident who lived in California. He was charged with statutory rape stemming from "unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator" for having sex with his 16-year-old girlfriend. He pleaded no contest to this charge in state court and was convicted.

Based on this conviction, the Department of Homeland Security began deportation proceedings against Esquivel-Quintana under the Immigration and Nationality Act, or the "INA." The INA states, in relevant part, that any alien - including a permanent resident - may be deported if convicted of an "aggravated felony." The INA has a list of offenses that constitute aggravated felonies, and one of these is "sexual abuse of a minor."

In a deportation hearing, an Immigration Judge ruled that Esquivel-Quintana had "sexually abused a minor" for the purposes of the INA, and was thus subject to deportation. The Board of Immigration Appeals agreed, and the US Court of Appeals (in a divided opinion) ruled that it was required to defer to the Board's interpretation.

Holding: A violation of California's statutory rape laws does not qualify as "sexual abuse of a minor" under the INA, and thus does not allow for deportation of the offender.

Reasoning: The first principle applied is that, under Federal Law, when determining if a person may be deported for a criminal offense, you look not at what actually happened in the particular case but instead at whether the law, itself, is a "deportable offense." In other words, you don't ask "are this guy's particular actions bad enough that we should deport him," you ask "is the crime this guy was convicted of the sort of crime we want to deport people for, in general." (Although it wasn't addressed in the opinion, this is presumably to prevent discretionary or inconsistent deportation.)

Under that principle, the Court considers, essentially, the smallest possible violation of the crime, and sees if that constitutes a deportable offense. In this case, the way you could violate California's crime in the "smallest possible way" would be if you were someone who turned 21 that day and had consensual sex with your partner who was 17-and-364-days-old. That scenario is what the Court looks at to see if the offense described by the statute is one for which we can deport someone.

So, the Supreme Court's next question is: Does a 21-year-old having sex with an almost-but-not-quite-18-year-old constitute the particular aggravated felony of "abuse of a minor?" And the answer, the Supreme Court unanimously said, is "no."

The main reason this is not "abuse of a minor" is because, under the "generic federal definition" of sexual abuse of a minor "requires that the victim be younger than 16." Basically, when we talk about a "minor" in terms of contract law - as in, can this person buy a house or smoke cigarettes - "minor" means "under the age of majority; that is, younger than 18." However, when we talk about a "minor" in terms of consent, it means "younger than the age of consent to have sex," which - in federal law and in 40 of the 50 states - is 16 (or younger, in some states). The Supreme Court noted that the federal and majority-of-states definition of 16 years for age of consent to have sex is supported by many law dictionaries and other sources, all of which suggest that this is what is meant when "minor" is used in the context of a law concerning statutory rape.

The federal government argued that the "common sense" understanding of "sexual abuse of a minor" includes any "illegal sexual activity directed at a person younger than 18." The Supreme Court disagreed with this argument for a few reasons. It first noted that, in many states, there are parallel statutes, one of which criminalizes sexual activity with someone younger than 16, and the other of which criminalizes sexual activity with someone younger than 18 when the older person is one who holds a position of trust or power over the person (such as a family member, teacher, or other guardian). The Supreme Court said that, for the INA's purposes, we can only deport for an aggravated felony; that is, one that has circumstances that go beyond any normal felony. In a lot of states, the Supreme Court said, the "aggravating factor" can be either that 1) the age is under 16 or 2) the older person has a position of power or trust over the younger person. If neither one of these factors is present or required - and it's not in California's law in the instant case - the law cannot be said to describe an aggravated felony as required by the INA.

The Supreme Court also said, essentially, that we don't want to allow differences in states' laws to mean that, in one state, a particular action isn't even a crime, whereas in another state it's an aggravated felony that can get you deported. The reason the Supreme Court looks at the law and not the particular circumstances is because it doesn't want "the generic federal offense of abuse of a minor [to be defined as] whatever is illegal under the particular law of the State where the defendant was convicted."

Lastly, the Supreme Court considered the possibility that judicial deference needed to be given to the Department of Homeland Security (under a doctrine called Chevron Deference, which basically says that when the interpretation of a statute is ambiguous, the agency enforcing that statute gets to resolve those ambiguities (within reason)). The Supreme Court said, essentially, the law regarding the INA and how we interpret it is very clear and not in the least ambiguous, so, DHS, no deference for you, come back, one year.

Conclusion: This case was a pretty easy one to decide for the Supreme Court. Basically, to go against this would be to ignore the entire 21-year history of how the INA was enforced. Justice Thomas has some weird views about how things should work, and has some... rather idiosyncratic theories of constitutional interpretation, but he's never been one to try to avoid applying precedent when it's clear. Thomas doesn't get a ton of chances to write majority (especially unanimous) opinions, so I'm sure they were glad to give him this one.

Ultimately, this is a good holding, as it preserves uniformity in what the federal government can deport people for, which is especially important at present. Additionally, as someone who thinks a lot of laws regulating the consensual sexual activity of 16-or-17-year-olds are rather... old fashioned (not to mention potentially harmful when they take away resources from/confound the issue of non-consensual sexual crimes), it's a good result to see that the full force of federal power will not be brought upon, say, a just-turned-21-year-old who had consensual sex with a just-about-to-turn-18-year-old.

Let me know if you have questions or if you disagree with my (or the court's) conclusions!

[SteelCurtain]

Awesome stuff, Joe. I'll look forward to reading this as more decisions come down.

[TheRealJoeFish]

Here's a brief analysis of one of the most important cases this term, Cooper v. Harris, the North Carolina gerrymandering case.  You may have read a headline stating something along the lines of "The Supreme Court strikes down NC Republicans' attempts to suppress black votes through gerrymandering," but if you want to know exactly what they did, exactly why it was illegal, and exactly why the dissent thought that (part of) the ruling should have been different, you've come to the right place!

Briefly, a definition/history of gerrymandering:

---

Gerrymandering is, per Wikipedia's definition, "a practice intended to establish a political advantage for a particular party or group by manipulating district boundaries."  That is, it's when the party who's in charge of drawing the boundaries of voting districts changes those boundaries in order to either 1) get more seats, or 2) make it more likely they keep the seats they have.  If it's not intuitive how that can be done, this seminal graphic is helpful:

Interestingly, the verb "gerrymandering" is pronounced with a soft G, sounding like "Jerry," even though the Elbridge Gerry, the Massachusetts Governor after whom the practice was named, pronounced his surname with a hard G, like "Greg."  An 1812 political cartoon conceptualized the unintuitive boundaries of a voting district created by Gov. Gerry as a "Gerrymander," a portmanteau of "Gerry" and "Salamander":

---

So, now that a brief overview of the subject matter is out of the way, here's the case that struck down North Carolina's proposed redistricting:

Cooper v. Harris
May 22, 2017
5-3; Majority Opinion written by J. Kagan and joined by J. Thomas, J. Ginsburg, J. Breyer, and J. Sotomayor.  Opinion Concurring in Part/Dissenting in Part written by J. Alito and joined by C.J. Roberts and J. Kennedy.

TL;DR: In some situations, you're allowed to use race to draw voting boundaries, but you better have a good reason for doing so.

Facts: North Carolina voting rights groups challenged the drawing of District 1 ("anchored in the northeastern part of the State") and District 12 (which "begins in the south-central part of the state... and then travels north-east, zig-zagging much of the way to the State's northern border").  The Court noted that NC District 12 has been challenged on numerous occasions since 1991, and this is at least the 5th case in which questions about the district reached the Supreme Court (both the State and the voters had won previous cases involving the district).

From 2001 to 2009 (between two census, which are held every 10 years in the US and upon which voting districts are redrawn), District 1's black voting-age population ("BVAP") was 48%, and District 12's BVAP was 43%.  (That is, both of these districts had large but non-majority black populations.)  During this time, the candidate that was most supported by the BVAP of these two districts uniformly won each election by a fairly large margin.  (That is, these were not districts in which a minority population strongly supported one candidate but that candidate consistently lost; rather, the candidate that received the majority of the BVAP vote won with, usually, 60% to 70% of the vote.)

In 2010, the district boundaries were redrawn by State Senator Robert Rucho and State Representative David Lewis, both Republicans.  As the Court noted, the new maps "significantly altered" Districts 1 and 12.  The 2010 census showed that District 1 needed 100,000 more people, and the new District 1 boundaries included a "finger-like extension" that took those people "from heavily black areas of Durham."  This increased District 1's BVAP from 48.6% to 52.7%.  District 12 needed no population adjustment, but, as the Court noted, "Rucho [and] Lewis... [still] decided to reconfigure the district, further narrowing its already snakelike body while adding areas at either end...."  The result was that, even though there was no need to change District 12's population, the redistricting lowered the number of white voters in the district by 50,000 and increased the number of black voters in the district by 35,000, thus increasing the BVAP of District 12 from 43.8% to 50.7%.

Registered voters in Districts 1 and 12 challenged these new maps (as is their right), essentially arguing that Rucho and Lewis "packed" Districts 1 and 12, which already tended to select candidates preferred by BVAP (that is, Democrats) for the purpose of reducing the number of black voters in other districts and thus making it more likely that Republicans would win those other districts.  (For context, just slightly over 50% of NC voters are Republicans, but 10 of the 13 NC State Senate seats are held by Republicans.)

In District Court, the Judges ruled 3-0 that District 1 was impermissible, and 2-1 that District 12 was impermissible.  The State of North Carolina appealed this ruling to the Supreme Court.  While this case was pending, Roy Cooper, a Democrat, was elected Governor of North Carolina.  Even though he did not want to pursue the case, certain legal provisions allowed the State Attorney General and legislature to continue the lawsuit, with Governor Cooper's backing in name only.

Here is the map of the 2011 Districts:


Holding: "A State may not use race as the predominant factor in drawing district lines unless it has a compelling reason," and the state of NC 1) did use race as the predominant factor here and 2) had no compelling reason to do so.

Reasoning:  The Fourteenth Amendment to the US Constitution guarantees equal protection of the law to all US Citizens, and part of that equal protection is protection from having your vote screwed with based on race ("It prevents a state, in the absence of 'sufficient justification,' from 'separating its citizens into different voting districts on the basis of race'").  When an allegation is made that a state did this, there's a two part test the Court must follow:

1. The Plaintiff (the person alleging that the redistricting is illegal) "must prove that 'race was the predominant factor motivating the legislature's decision to place a significant number of voters within or without a particular district.'"
IF that is shown, THEN the Court goes to step 2:
2. "The burden... shifts to the State to prove that its race-based sorting of voters serves a 'compelling interest' and is 'narrowly tailored' to that end."  (In lawyer-talk, it must withstand strict scrutiny.)  For this part, the Court notes that complying with the Voting Rights Act ("VRA") counts as a compelling interest.  The VRA, essentially, says you can't deny or abridge the right to vote based on race.

SO, the Supreme Court followed this test, noting that it owed "significant deference" to the findings of the courts below.  As a preliminary matter, it rejected North Carolina's argument that a NC Court decision prevented the Supreme Court from ruling on this; it noted that the SC case was brought by the NAACP, not by the voters in the districts, and the fact that some voters who are plaintiffs here are also members of the NAACP is not enough to apply the results in that case to the voters of Districts 1 and 12 as a whole, especially when a question of federal law is involved.

District 1

Prong 1: Must prove that race was the predominant factor
This part was very, very easy.  As the Court noted, "[d]uring a Senate debate, for example, Rucho explained that District 1 'must include a sufficient number of African-Americans' to make it 'a majority black district.'"  Dr. Hofeller, a redistricting consultant who helped create the 2011 map, "testified multiple times at trial that Rucho and Lewis instructed him 'to draw [District 1] with a [BVAP] in excess of 50 percent."  Hofeller explicitly stated that "he sometimes could not respect county or precinct lines as he wished because 'the more important thing' was to create a majority-minority district" (that is, a district in which the majority of voters belong to a group that is a minority in the state as a whole).  Basically, the Supreme Court spent a couple paragraphs on this, said "this is a slam dunk," and moved on to the second prong:

Prong 2: Because race was the predominant factor, the STATE must prove it had a compelling reason for using race
This was the hard part.  The VRA says that you can't intentionally dilute a minority vote.  Basically, there is evidence of minority vote dilution (and thus a VRA violation) if the following three conditions are met: 1) there's a geographically large and compact group of minority voters that you could draw a reasonable district around; 2) this group of minority voters tends to vote similarly, that is, they're "politically cohesive"; and 3) as the districts are drawn now, the "district's white majority 'votes sufficiently as a bloc' to usually 'defeat the minority's preferred candidate.'"  IF the state can show ALL THREE of those things, THEN the State has a COMPELLING REASON to think that minority votes are being diluted and can take race into account when drawing redistricting lines.

The Supreme Court said, essentially, that in this case there was no problem to be solved; basically, minority voters' preferred candidates in Districts 1 and 12 were never being defeated, let alone usually being defeated, and thus there was no reason to "pack" these districts with more minority voters (which necessitates removing them from other, more contested districts).  "In the lingo of voting law, District 1 functioned, election year in and election year out, as a 'cross-over' district, in which members of the majority help a 'large enough' minority to elect its candidate of choice."

North Carolina argued that, essentially, it was putting more black voters in District 1 because it wanted to guarantee that it wasn't violating minority rights by making extra-sure that minorities' preferred candidates would win Districts1 in the future.  In response to this argument, the Supreme Court basically said, "nonsense; you're addressing a future problem which may or may not harm minority voters' rights by creating a present problem that is clearly harming minority voters' rights."  The Court noted that this purported reason was not addressed in the legislative record when the redistricting expert was being told to add more minority voters to the District.

What Rucho and Lewis did address during their debates and discussions about the new Districts, the Court noted, was a misunderstanding of the law.  The two repeatedly stated that a past Supreme Court case (Strickland) mandated creating a >50% BVAP district, when in fact it said no such thing.  ("They apparently reasoned that if, as Strickland held, [the voting rights act] does not require crossover districts (for [small groups of minority voters]), the [the VRA] also cannot be satisfied by crossover districts (for [large groups of minority voters]).  In effect, they concluded, whenever a legislature can draw a majority-minority district, it must do so, even if [the existing district] would allow the minority group to elect its favored candidates.")  The Supreme Court basically said "that's not what the law says, GTFO."

District 12

The argument about District 12 was different.  With District 12, the State didn't admit that they were trying to give the district more BVAP.  Rather, they said they were trying to pack District 12 with as many democrats as they could, and those democrats just happened to be black.  Basically, the question is whether the redistricting was racially motivated, which is illegal unless you satisfy the VRA as described above, or politically motivated (which is somehow not illegal because this country sucks ass).  So, the District Court (below) had to do a lot more digging into Prong 1 when it came to District 12.  Ultimately, the Supreme Court said "the District Court that made the lower decisions looked at this very closely, and accepted that this was more about race than pure politics.  We can only reverse that if they're clearly mistaken.  And they're not clearly mistaken."

In supporting the contention that District 12's reshaping was also racially motivated, the Court noted that the new shape was more convoluted, even though - unlike District 1 - there was no need to add people.  It was further noted that Rucho and Lewis talked about District 12 in similar ways to District 1, that they wanted to avoid extra scrutiny by making sure that the BVAP in District 12 was higher.  Dr. Hofeller, the redistricting expert, said that "[t]he legislators... 'decided to reunite the black community in Guilford County into [District 12]... 'in order to be cautious and draw a plan that would pass muster under the Voting Rights Act."  As such, the District Court had found that the attempt to make District 12 Majority BVAP was "no 'mere coincidence'," and the Supreme Court found that this was not clearly an incorrect conclusion.

Once that was established, the same Prong 2 analysis (whether there was a compelling reason to use race) was essentially identical to District 1: all of the state's reasons were either arbitrary or based on a misunderstanding of the law.

Concurring Opinion by Justice Thomas

This case was notable in that the four traditionally liberal Justices were joined by Justice Thomas, the most conservative Justice.  He filed a two-page Concurrence, essentially just to note that he thinks this is a good example of giving deference to the lower court, and to express his belief that, typically, the Supreme Court doesn't give enough deference to the lower courts.

Opinion Concurring in Part/Dissenting in Part

Justice Alito, Chief Justice Roberts, and Justice Kennedy filed an Opinion Concurring in Part and Dissenting in Part.  Basically, they agree that District 1 is impermissible (because it was clearly) based on race, but would allowed District 12 to stand, because they felt that it wasn't shown that District 12's boundaries were based predominantly on race.  They essentially argued that, because "race and party affiliation in North Carolina were 'highly correlated'," the Plaintiffs challenging the district should have been required to "show at the least that the legislature could have achieved its legitimate political objectives in alternative ways that are comparably consistent with traditional districting principles... [but] would have brought about significantly greater racial balance."  That line, these Justices noted, was actually from one of the previous cases about District 12.

In practice, what this means is - if the state says "we just tried to pack the district with democrats, and they just happened to all be black," the challenging party would then need to come up with a district that is just as packed with democrats but doesn't change the racial makeup.

Conclusion

Gerrymandering is stupid and dumb and weird.  Call your senators and tell them to stop gerrymandering.  

Traditionally, the Courts have been reluctant to address gerrymandering, but there have been more and more cases to do so recently, and many commentators feel that this case is a tipping point, representing the Court saying "enough is enough" as attempts to entrench the currently controlling party become more and more bold.

[vorlon13]

are there any cases on the legality of infibulating a minor ?

(assuming it is not medically necessary and is being done with the express purpose of preventing vaginal penetration)

[TheRealJoeFish]

Not a court case, but the first FGM prosecution in the USA was 6 weeks ago in Michigan

If you mean male, I don't know.

[vorlon13]

At least for the most part infibulation is reversible. I also note some SCOTUS rulings specifically note foreign jurisprudence.

Perhaps we don't want such a case to go to SCOTUS?


As for male infibulation, ouch.

[Whateverist]

Thanks for the thread, Joe.  Look forward to following it.

[Jackalope]

I am quite certain I don't want to know what infibulation is.

[Jackalope]

Thanks for the thread, Joe.  Look forward to following it.

^^^ this ^^^

I appreciate reading about important cases in ordinary language from someone I trust to not consciously spin the analysis.

I'm trying to remember which horribad precedent from way back we are still saddled with - farther back then Citizens United of course. There's gotta be something awful like Dred Scot still on the books, amirite?

Know of any?