“SOUND AND FURY . . . “: THE SUPREME COURT THROWS UP IT’S HANDS ON ATTORNEY-CLIENT PRIVILEGE

                                                                                                            By:  Ronald C. Minkoff

            After months of briefing by the parties, more than a dozen amicus submissions, and an extended oral argument two weeks ago, the U.S. Supreme Court yesterday suddenly dismissed the appeal in In re Grand Jury on the ground that certiorari was improvidently granted.   This appeal, described by many bloggers as the most significant attorney-client privilege case before the Court in many years, turned out to be, in the Justices’ eyes, “sound and fury, signifying nothing.”  Macbeth, Act V, Scene 5, lines 16-27.

            How did this happen?  All the pieces for a blockbuster decision were in place.  The parties dispute whether a law firm must produce documents concerning (1) “the procedural aspects” of preparing a client’s tax return, and (2) advice as to completing the return, either by a lawyer or an accountant – classic scenarios raising the question of whether the documents contained legal advice (the attorney-client privilege would apply) or business advice (the privilege would not apply).  See Government’s Brief at 4 (citing District Court).  The issue was important:  the Government wanted the privilege interpreted narrowly so it could better investigate possible criminal activity, while businesses wanted the privilege interpreted more broadly so as to cover these so-called “dual purpose communications”.  The issue had wide application, as it affected the ability of businesspeople and their lawyers to predict whether the privilege would apply to their communications in transactional settings.  On top of this, there was a split among the Circuits: the Ninth Circuit, in ordering production, applied the “primary purpose” test – i.e,, that the privilege applies only if the “primary purpose” of the communication was providing legal advice — while the law firm sought to apply the broader “substantial purpose” test espoused by the D.C. Circuit.

            But as soon as the oral argument began, the hope of a significant, clear ruling started to crumble.  Prodded by the Justices, the lawyers on both sides abandoned their original positions.  The law firm, noting the difficulty of establishing whether the legal purpose of a given dual purpose communication could be considered “substantial”, much less “principal”, began arguing for an even broader interpretation of the privilege, where all the proponent had to show was a “bona fide legal purpose.”  Oral Arg. Tr. at 28.  The Government, meanwhile, appeared (at least to some of the Justices) to retreat from, the “primary purpose” test to contend that a communication with a “substantial” legal purpose would be privileged – as long as the legal purpose was really, really substantial (even if not primary).  Id. at 50-51. 

            These verbal gymnastics left the Justices spinning.   Justice Kagan pointed out that the majority of courts have been using the “primary purpose” test for years, and “there’s no particular evidence of confusion, nor is there any particular evidence” that attorney-client communications are being chilled.  Id. at 18.  Justice Sotomayor worried that departing from the majority test would risk putting the federal courts at odds with state courts, who also use the “principal purpose” test, with the ability to assert the privilege riding on the forum where the case was brought.  Id. at 15-16.  Many of the Justices scratched their heads at trying to determine what percentage of the communication had to be legal – 51%? 49%? 40%? – for the “principal purpose” test to apply.  Id. at 12 (Justice Jackson: if 90% of the document is a factual recitation and only 10% is legal, is it privileged?); Id. at 29 (Justice Sotomayor: “Is it 51 percent versus 49 percent or the 50/50 situation” where privilege will apply?); Id. at 28 (Justice Alito:  “Significance concerns importance. Maybe it’s a lot lower perhaps than primary, but it does involve a . . . certain quantum of importance”).  Chief Justice Roberts bemoaned “I think we’re talking about labels rather than analysis”.  Justice Kagan perhaps best summed up the Court’s conundrum by asking one of the lawyers to “comment on, you know, the ancient legal principle, if it ain’t broke, don’t fix it.” Id. at 33.

            That, apparently, is where the Court ended up.  The “primary purpose” test is basically working; any other test would be too broad, too narrow or at least equally confusing; and solidifying any test might remove the flexibility trial judges need to make privilege determinations regarding complicated, dual purpose documents.  So, in the end, the Court retreated, leaving things as they are:  doctrinally confused, but providing sufficient guidance for judges to do their work.

            One more comment.  The case did contain another, even more difficult issue:  if lawyers and accountants are giving essentially the same advice, why is one privileged and the other not?  And how, in the area of tax law and tax reporting, can we draw lines about what accountants and lawyers can and cannot do?  But though some of the Justice alluded to this concern, neither they nor the parties wanted to address it.  The question of whether non-lawyers, like accountants, can provide what is essentially legal advice without being admitted to the Bar will – like the standard for evaluating dual purpose communications – remain for another day.

The views expressed here are those of the author, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.

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Moore v. Harper To Be Argued Next Week–What is at Stake?

Perhaps the most important case of this year’s Supreme Court term is scheduled to be argued on Wednesday December 7 (Pearl Harbor Day!).  The case may be an attack on democracy, but it’s not a sneak attack.  Everything is out there for the world to see.  The case concerns partisan gerrymandering and what the judiciary can do about it.  The dangerous part of the case is the so-called Independent State Legislature Theory, or to cognoscenti, the “ISLT”, which given our nation’s current political environment could be a serious threat to democratic norms.  How did the case arise and what is at stake?

The case concerns North Carolina’s severe gerrymandering of its congressional redistricting after the last census.  The evidence offered in the state courts below, which was never seriously disputed, showed that the Republican-drafted election map was a radical statistical outlier, favoring Republicans over Democrats compared to 99.9999% of all possible maps.  That’s not a typo.  The evidence also showed that even if Democrats received 50% of total votes for their congressional candidates, the map guaranteed they could not elect more than 4 out of 14 representatives.  

Naturally litigation ensued.  Because the Supreme Court decided in 2019 in the Rucho case that gerrymandering was a political question, the federal courts could not intervene, so the litigation was brought in the North Carolina state courts.  (Parenthetically, it was in part because of Rucho that Chief Justice Roberts was able so successfully to keep the Supreme Court out of all the litigation that ensued in the wake of the 2020 presidential election, all of which ended up in the attempted coup on January 6, 2021, and Chief Justice Roberts’ ability to keep the Court out of that litigation while the country guided itself to a successful, if not uneventful, transition of power, was most definitely an achievement of his.) 

In the first round of state court litigation, the North Carolina Supreme Court found there to be an unconstitutional gerrymander under the state’s constitution, and it ordered the state legislature to re-draw the map.  The state legislature unsurprisingly was recalcitrant and adopted another gerrymandered map.  On round two the state Supreme Court ordered a special master to re-draw the map.  The state took an appeal to the Supreme Court of the United States, arguing that it was unconstitutional under the federal Constitution for the state Supreme Court to intervene in this fashion.  The state’s theory is that under the federal Constitution’s Election Clause, only the state legislature could act and the state’s judiciary had no power to act.

The purported basis for this theory is that under the so-called Elections Clause the state legislature has the sole and unreviewable power to set election rules.  Article I, Section 4 does provide that “the Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof.”  But from a provision that allows state legislatures to pass statutes setting forth polling hours and the like, the petitioners want to make a giant leap that this language by itself means that ONLY the legislature can prescribe election rules, including gerrymandering to their heart’s delight and all manner of other pernicious election-related activity of which we’ve seen far too much in the recent past.  Does this language really bar judicial review?  Whatever happened to Marbury v. Madison and its many state equivalents?  The power grab is staggering.  Yet it is what the so-called Independent State Legislature Theory posits.

The modern incarnation of the theory has its roots in Bush v. Gore, which itself is a genealogy that should raise questions.  In appointing the President…that is what the Court did, let’s be clear about that, and in my opinion it was the start of much of the public’s current loss of confidence in the Court…Chief Justice Rehnquist referred to the theory in arguing that the Florida state court’s order that the ballots be counted ran past the state law deadline for certifying the election results.  He seemed to be saying that one reason to stop the counting was that continued counting was in violation of state law.  But wasn’t that for the Florida Supreme Court to determine?  And how do you make the leap from saying the timing of the count is taking too long to the argument that a state legislature can do whatever it wants free from any judicial review whatsoever?  (Also, what happened to the Court’s own admonition that you should never ever cite Bush v. Gore again?)

The first and easiest way around this argument in the Moore v. Harper case is that North Carolina election law does provide for judicial review of election law determinations.  Thus, the North Carolina legislature passed a statute governing the time, place and manner of elections that expressly allows for judicial review.  Isn’t that part of the “Manner” of the conduct of elections that the state legislature authorized?  Why shouldn’t that be the end of the story?  

But the Supreme Court (of the United States, not North Carolina) didn’t grant certiorari to come to that simple and banal result.  Rather, the ideologues in the conservative wing I believe intend to drive this case to a different and much more dangerous outcome.  I believe that Chief Justice Roberts will try to avoid a broad ruling along the lines sought by the state, because he certainly understands the implications, but we know he has lost control of his Court.  He’ll have to convince at least one of his conservative colleagues to go along with a narrow ruling.

Consider the potential consequences if Chief Justice Roberts is unsuccessful and the Supreme Court adopts an extreme version of the Independent State Legislature Theory, ruling that state legislatures can do whatever they want without judicial review.  First, in the case of gerrymandering, it will be “Katy bar the door.”  If the Supreme Court won’t allow federal courts to get involved, which is the thrust of Rucho, and there are no state court limits on legislative power, the most egregious acts of gerrymandering will become even more common.  

In our very own state of New York, for example, the Court of Appeals recently turned away an almost equally gerrymandered map favoring the Democrats (also at the 99.9999% level of significance).  They did so after the Democrats, in full control of the state legislature with a veto-proof super-majority, pushed through a state constitutional amendment to create a state commission to deal with extreme gerrymandering, which some other states have also done (for example, Ohio) to try to deal with this problem.  The Democrats in Albany then arrogantly ignored their own action, pushed out an extreme gerrymandered map and basically gave the finger to the courts and themselves, over-confident in their ability to prevail.  It didn’t help that one of their proposed districts was so non-contiguous that it occupied opposite shores on Long Island Sound.  Chief Judge Janet DeFiore and her colleagues said no dice, and restored the commission’s map.  The logic of their decision was that the state legislature couldn’t ignore the state constitutional amendment that they themselves had sponsored, so the commission’s map had to prevail.  It would be hard for anyone to defend the propriety of the state legislature’s acts under the circumstances and the Court of Appeals’ decision in my opinion was a clear victory for the rule of law.  The election proceeded on the basis of the map endorsed by the Court of Appeals and the Democrats lost four congressional seats to the Republicans that likely would have been kept if the state legislature had gotten its way.  Those four seats alone were a major part of the swing from Democratic to Republican control of the House of Representatives.  While those on the left interested only in political power have decried the result, all that the Court of Appeals really said was “you can’t pass a statute, or, worse, a constitutional amendment, and then utterly ignore it, and expect the judiciary not to have something to say about it.”  And yet, if Moore v. Harper’s version of the Independent State Legislature Theory becomes the law the proceedings before the New York Court of Appeals arguably would have been unconstitutional under the federal Constitution.  Assemblyman Michael Gianaris from Queens might be happy with that outcome given his bitter complaints about the Court of Appeals, but what is good for the goose is good for the gander and he would have to accept results such as that in North Carolina as a consequence.  In the longer term, in my opinion we are better off with an active judiciary who can enforce the rule of law and police such blatant misbehavior.

But the consequences won’t be limited only to gerrymandering, bad as that alone may be.  Right now in Arizona and elsewhere we have election boards refusing to certify results.  What happens if a state legislature directs an election board or a secretary of state not to certify a result?  What happens if a state legislature refuses to permit presidential electors to be designated consistent with the state popular vote and selects other electors instead?  That was what was behind all the efforts to “stop the count” on January 6, 2021.  Would judicial review of that determination be prohibited as well?  We can’t say that won’t happen.  It already has.

Indeed, that is one of the reasons I am skeptical about the proposed Electoral Count Act amendments currently working their way through Congress. The purpose of the amendments is to make the counting of electoral votes more mechanical in Congress, and supporters say that is designed to prevent objections like we had on January 6 in Congress while an attempted coup was materializing outside.  That objective is worthy, but if a state legislature supplants the popular vote, and relies on the Independent State Legislature Theory to do that, I worry that the effect of the Electoral Count Act amendments will be to require Congress to count a rogue state legislature’s designated electors selected in such a fashion, without any form of judicial review available to stop it.  The fact that Mitch McConnell supports the amendments only increases my concerns.  He is a brilliant strategist, and may be foreseeing precisely such an outcome.

Any one of a variety of other pernicious acts by rogue state legislatures can be conjured up if the Independent State Legislature Theory is adopted.  None of them promotes democracy.

The petitioner’s brief also shows the challenges involved in trying to utilize an “originalist” approach to constitutional interpretation.  The petitioners claim that there was a subtle change in the wording of the Elections Clause during the 1787 constitutional convention which was substantive to the point of being outcome-determinative here.  They argue that one draft of the clause referred to the state, and a later draft, after referral to the convention’s Committee on Detail, referred specifically to the legislature of each state.  They say this was the result of an effort by Charles Pinckney of South Carolina to ensure that the state legislature would have this sole authority.  They call it the “Pinckney Plan.”  But this is nonsense.  The materials the petitioners rely upon were part of efforts made in 1819 and then again in 1836, by John Quincy Adams and Jonathan Elliot, respectively, to assemble as best they could the materials that were actually prepared and submitted and debated at the convention.  What Pinckney submitted to Adams as “evidence” in 1819 actually had a watermark showing it was written on paper manufactured in 1797, not 1787, and there is a letter from Pinckney confirming that his record-keeping was incomplete and this was his best effort to re-construct what he had actually written and submitted.  Pinckney wasn’t trying to mislead or hide anything; he just didn’t have a complete record.  Other than this attempted recreation of “evidence” long after the fact, there is no, repeat no, evidence that a so-called “Pinckney Plan” along the lines urged by the petitioners ever existed.  Elliott didn’t know any of this when he did his 1836 compilation, and the petitioners today, 186 years later, simply accepted the Elliott compilation without question, and ascribing more significance to the slight wording change than it probably warrants in any event.  This is the kind of thing that gets historians Ph.Ds. and book awards, but if we can debate these things over and over as historians do then how can you uncritically trust any supposed “originalist” point of view?  I’ll go so far as to say that what the petitioners have done here borders on misrepresentation.  Even if they wrote their brief in good faith, the potential pitfalls of originalism are well demonstrated.  Anyone who wants a more detailed demonstration of these facts about the supposed Pinckney Plan is referred to the excellent amicus brief filed by the law professor brothers Amar, of Yale and Illinois, which is written in a refreshingly easy to read style, and the excellent recent article written by Gregory Diskant of Patterson Belknap in the New York Law Journal.  The fact is that there is a fundamental lie embedded in the “originalism” theory, which is that we can actually know objectively and conclusively the full and undebatable historical “truth.”       

The danger which Moore presents to our democracy, and the extremism it represents, is shown by some of the people who have lined up against the state’s position.  Retired Judge Michael Luttig has put in an amicus brief; he is more often associated with Republican positions, although he has come out against some of the most outlandish 2020 election claims.  Also on an amicus brief in opposition to the state is Steven Calabresi, a law professor who usually swings red; he is a nephew but most definitely not an intellectual ally of Judge Guido Calabresi of Yale and the Second Circuit.  Also filing an amicus against the state is the Society of State Supreme Court Chief Justices.  NYCLA, I should say, also joined an amicus brief taking the same positions.

Why has this become a politicized red-blue issue?  Didn’t New York do the same thing but in a blue direction?  Don’t both sides like having the ability to gerrymander?  The answer I think lies in the fact that the Republicans have been far more disciplined about redistricting after not only the 2020 census but 2010 as well.  They have also been far more disciplined about putting in place secretaries of state and other more local state election officials who can mold these rules in their desired direction.  We are seeing that in real time in Arizona right now (although in general the 2022 midterms proceeded more smoothly than some had feared).  The Democrats lack the same degree of discipline.  As Will Rogers once said, “I don’t belong to an organized political party.  I’m a Democrat.”  As a result Republicans perceive they have more to gain from the ability to mold and manipulate election rules.  One also can’t discount the willingness of far too many Republicans to tell lies about elections, seemingly without any consequence, and with the associated willingness to bend rules to fit their own narrative and interests.  And, one can’t discount the ever-present issue of race.  The Supreme Court has substantially gutted the Voting Rights Act, once a crowning achievement of the civil rights era,  and with that gone Republicans are moving on to the next place where they can make elections more favorable to their party which is gerrymandering in a way that corresponds in part to race and racial preferences in politics.  Sorry, folks, but that’s the way I see it.          

Richard P. Swanson

                                                                                          Vice President, NYCLA

The views expressed here are my own, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.

The Collapse of FTX

The collapse of FTX shows how important legal rules and regulations are to the safety of our economic system.  Crypto has been held out to the world as a libertarian dream of free markets bypassing government and law.  Now we see what can happen in their absence.

In the world of securities law, in which I have practiced for more than 40 years now, there are detailed rules on things like net capital, hypothecating and commingling of customer accounts and assets, avoidance of conflicts like FTX apparently had with its affiliated adviser and trading firm Alameda and other similar matters.  Many of these rules can be mind-numbingly complex, but in the case of FTX the failure to follow them produced a run on the bank (banking law matters too).  FTX’s position of course was that crypto was neither a security nor legal tender so neither securities nor banking law applied.

The world of crypto is a bizarre libertarian fantasy land.  It is too volatile to serve as a currency or a store of value and too divorced from the real economy of jobs and production of goods and services to serve the functions its advocates have argued it should be providing.  And, no government or central bank will easily give up the power over the fisc or the (proverbial) mint, including the power to implement monetary and fiscal policy which the advocates of crypto don’t like to discuss.

The fact is that legal rules both constrain and facilitate our behavior every day, even when we’re not conscious of it.  Routine payments by credit cards, Venmo or checks are possible because of a detailed set of rules set forth in banking law and the Uniform Commercial Code, among other things, but no one thinks about that when they buy their morning coffee.  The safety of our 401(k) retirement assets, in an account preservation sense if not a stock market valuation sense, is protected by the very securities laws that FTX chose to ignore as inapplicable.  We should be glad that we have a legal and regulatory system, and the collapse of FTX shows why they exist.

                                                                                          Richard P. Swanson
Vice President, NYCLA

The views expressed here are my own, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.

“It’s time to heed the Constitution and return the issue of abortion to the people” What the Kansas Abortion Referendum Tells Us

By: Brittney Balser & Meg Sanborn-Lowing

In Dobbs, Justice Alito opined that “the permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”  In the first vote of its kind since the Dobbs decision, Kansas voters did just that, rejecting an amendment to the state’s constitution that would remove the right to abortion and allow for Republican law makers to pass stringent abortion restrictions.  

            In a state former President Donald Trump won by more than 15 points in 2020, the outcome of the referendum vote was hard to predict, due in part to the confusing posture of the referendum itself.  In 2019, the Kansas Supreme Court ruled that the state constitution protected abortion rights.  Anti-abortion groups proposed an amendment expressly stating that the state constitution does not create a right to abortion and that the state legislature has the express authority to pass abortion laws.  Thus, passage of the amendment would have allowed the state’s Republican-controlled Legislature to decide the fate of access to reproductive healthcare.  As a result, pro-choice Kansans had to vote “no” on the measure in order to ensure the continued protection of abortion access in the state.  

            Despite this counterintuitive posture, the final count is expected to show that approximately 60% of Kansans favored protecting the right to abortion.  In addition, despite its late-summer timing, there was “incredibly high turnout” according to Kansas’ Secretary of State.  The outcome of this vote confirms what many polls had suggested: Americans, even those in conservative states, believe in protecting access to abortions and reproductive healthcare.

            The Kansas referendum is not the only opportunity Americans have this year to vote to protect abortion access.  Kentucky voters will face a similar question in November, when they will vote on a constitutional amendment stating that Kentucky’s constitution does not expressly create a right to abortion, which will therefore be left up to the state’s Republican-controlled Legislature.  In addition, liberal-leaning states such as Vermont and California are asking voters to enshrine the right to an abortion in their state constitution, while voters in Michigan will likely be asked whether to codify the right to an abortion in their state constitution.  Such addition would nullify the existing 1931 Michigan state law prohibiting abortion—a law that Michigan Attorney General Dana Nessel is currently refusing to defend.

            While the outcome of the Kansas referendum is a success for the pro-choice majority, substantial burdens still exist for Kansans seeking abortion healthcare.  The state only has four abortion providers, all of which are located in either Kansas City or Wichita.  Indeed, for many Kansans, it is easier to travel to neighboring Colorado for reproductive healthcare.  Further, the success of the Kansas referendum does nothing for the millions of people in America who live in a state in which they do not have the ability to directly vote to protect the right to reproductive healthcare, and where abortion access is currently restricted or outlawed.

            The biggest takeaway from Tuesday’s vote is that Kansas voters have confirmed what polls have been reporting for years: a majority of Americans opposed overturning Roe v. Wade.  When given the opportunity to have their voices heard, most Kansans came out in favor of protecting the right to an abortion, even a substantial percentage of conservative voters who voted for former-President Trump to be re-elected less than two years ago.  While the long-term impact of the Dobbs decision on voter decisions remains to be seen, the result of the Kansas referendum is further proof that when the issue of abortion is truly returned to the direct vote of the people, Americans believe in “the right of individuals—yes, including women—to make their own choices and chart their own futures.”

The views expressed here are those of the authors, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.

I’VE HAD IT WITH CLARENCE THOMAS

I’ve had it with Justice Thomas.  He’s a whiner.  Nobody likes a whiner, but he’s not an infant.  He’s a Justice on the Supreme Court.

In the wake of the leak of Justice Alito’s draft opinion overruling Roe v. Wade, Justice Thomas delivered remarks before a conservative conference hosted by the American Enterprise Institute, the Manhattan Institute and the Hoover Institution, three well-known conservative organizations.  He doesn’t speak before the ACLU or Planned Parenthood or any organization even remotely of their ilk.  Fellow travelers only. 

In his remarks, Justice Thomas complained, justifiably, about the leak.  He also complained, understandably, that it had damaged collegiality and trust internally among the justices.  But he also went beyond that to complain “I wonder how long we’re going to have these institutions at the rate we’re undermining them.”  “And then I wonder, when they’re gone or destabilized, what we’re going to have as a country.”

Really Justice Thomas?  Don’t you get that you’re at least as responsible as anyone for undermining the authority and image of the Supreme Court?  When your wife clearly supported an attempted coup on January 6?  When her advocacy involved encouraging efforts to have state legislatures ignore vote tallies to appoint new electors dedicated to voting for President Trump?  And then when you decided not to recuse yourself when issues related to executive privilege and scope of subpoenas related in part to your wife’s activities came before the Court?  And what about your role in the 2001 decision in Bush v. Gore, where you and four other justices essentially appointed a President by stopping vote counting in Florida under a specious equal protection argument?  Was there any original intention on the part of the framers of the Fourteenth Amendment that it would be used to designate a President?  And yet, in your opinion in the abortion case, and elsewhere, you claim to support the original intent theory of constitutional jurisprudence.  The hypocrisy is astounding, and the implications for democracy are frightening.

Justice Thomas also went on to say that all of the opposition he has encountered over matters judicial, including his own confirmation hearing, was from the left, whom he criticized as egregious and unfair.  What about Senator McConnell’s machinations to keep Merrick Garland off the Supreme Court, and to jam Amy Coney Barrett onto it?  I could go on and on.

Does Justice Thomas have so little self-awareness that he can’t get his own role in these events?  The current Court is as activist as any we have had in our nation’s history, and certainly every bit as activist as the Warren Court of the 1950s and 60s, just in the opposite direction.  Justices on the right, including Justice Thomas, routinely give speeches encouraging attorneys who see things their way to file certiorari petitions that give the Court the opportunity to decide the issues and cases they choose, ideologically, to decide.  

But then to complain on top of that about public reaction from the other side is really appalling.  How can you be a public figure, serving a public role in an ideologically tinged manner without understanding that public criticism comes with that role?  Does he expect to be thanked by everyone in the entire country for taking the right of abortion away?  Did the entire country thank the Warren Court for Brown v. Board of Education?

Stop whining, Justice Thomas.  Personally I’d prefer it if you resigned instead, but I know that won’t happen.  In the meantime, just stop whining.

Richard P. Swanson

                                                                                          Vice President, NYCLA

The views expressed here are my own, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.

New York Should Become a Legal Safe Harbor for Women Seeking Abortions and the Health Care Practitioners Who Provide Them

By Margaret Sanborn-Lowing, Esq. & Kate Aufses, Esq.

In the wake of the Supreme Court’s decision to overrule Roe v. Wade, the United States has become a tale of two countries: one country in which abortion is legal and one in which it is not. As a result, pregnant women who live in states in which abortion is illegal will be forced to cross state lines to obtain abortions in states like New York where the procedure remains legal and accessible. While New York is and will continue to be a leader in upholding a woman’s right to terminate a pregnancy, we urge the state to do more to protect women who travel to New York to obtain necessary—and possibly lifesaving—abortion services. New York can also do more to protect doctors, other healthcare practitioners, state and local agencies, or any other citizen who helps facilitate an abortion for a non-New Yorker who travels to the state for an abortion.

Currently, New York’s Reproductive Health Act—passed in 2019—ensures that anyone who can get pregnant can get an abortion in the state. The law codified the protections previously provided under Roe and guarantees access to safe and legal abortion up to 24 weeks post-fertilization. In New York, abortion is also permitted after 24 weeks if the fetus is not viable, or if the pregnant person’s life or health (including mental health) is at risk.

Nevertheless, the Reproductive Health Act does not include affirmative protections to deter states with civil bounty hunter laws (like Texas’s SB8) from prosecuting individuals who travel to New York to obtain an abortion. The law also fails to protect from prosecution citizens of New York who assist non-New Yorkers in obtaining an abortion. New York should look to its neighbor, Connecticut, as a model for codifying these statutory protections and strengthening and expanding abortion access more generally.

On May 5, 2022, Connecticut’s Governor Ned Lamont signed into law House Bill 5414. The Connecticut state legislature passed the bill in response to the restrictive and draconian laws being passed in states like Texas, which create a private right of action for any citizen to sue patients or providers involved in abortions performed after a fetal “heartbeat” is detected, generally about six weeks. Connecticut’s law, in turn, prohibits state and local agencies from cooperating in investigations and prosecutions of abortion providers in the state; the law also shields abortion-seekers from penalties that could be imposed under other states’ anti-abortion laws. Indeed, people or organizations in Connecticut who are sued for receiving, performing, or providing support for abortions in other states can countersue for damages and other costs. Connecticut’s law also modifies the state’s extradition statutes and prevents disclosure of an out-of-state patient’s medical records.

What’s more, the Connecticut statute expands the types of medical professionals who can provide abortions in the state. The law allows advanced-practice clinicians such as registered nurses, nurse-midwives, and physician assistants to perform aspiration abortions, the most common method of in-clinic abortions, and to provide medication abortions. This is a critical step to ensuring that abortion remains as accessible and available as possible.

We are, of course, proud that our elected officials, including Governor Hochul, Lieutenant Governor Delgado, and Mayor Adams, are committed to ensuring that New York continues to be a “safe haven for women across this country” and that “abortions remain safe, legal, and accessible” here. But New York should do more: legislation as powerful as Connecticut’s is a next step. Last month, Manhattan State Senator Liz Krueger introduced a bill that would protect New York doctors who treat patients seeking

abortions by prohibiting law enforcement from cooperating with out-of-state investigations on abortion cases. While commendable, we urge New York to enact additional legislation preventing any state or local agencies from participating in the prosecution of women who travel to New York for necessary, and possibly lifesaving, abortions.

The views expressed here are the views of the writer, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.

A SMALL STEP FOR NON-LAWYER PRACTICE – AND ACCESS TO JUSTICE: Upsolve, Inc. v. James

                                                                                                By:  Ronald C. Minkoff

Sometimes lawsuits lead to the right result for the wrong reason.  And sometimes, the reasoning doesn’t really matter:  it is the result that counts.   U.S. District Judge Paul Crotty’s May 24, 2022 decision in Upsolve, Inc. v. James, No. 22-cv-627 (S.D.N.Y.) (PAC) (“Upsolve”), is an example of both.

            Upsolve addresses – and approves — a radical solution to a dire problem.  Upsolve, a not-for-profit organization, trains non-lawyers to provide limited legal advice to lower-income New Yorkers who face debt collection actions.  Because so many defendants in those actions are pro se – a Pew Charitable Trusts survey sets the number at 90%, with 70% ending in default judgments [M. Reynolds, “Federal Judge Greenlights Legal Tech Company’s Use of  Nonlawyers for Legal Advice” (ABA Journal, May 26, 2022), citing Pew Charitable Trusts survey] — the New York court system has created a one-page “check-the-box” answer form for these defendants to fill-in to avoid default.  Upsolve’s goal is to train non-lawyers to assist defendants to complete the forms and file a proper answer.

            Upsolve crafted its training program in an effort to avoid any future claim that the non-lawyers it trained were engaged in the unauthorized practice of law (“UPL”), which is still a crime in New York.  See N.Y. Jud Law §§ 476-a, 478, 484, 485.  The trainees, known as “Justice Advocates”, would use a training guide when helping others to fill out the form.  The training manual requires the Justice Advocate to make clear that they are giving limited advice (only on how to fill out and file the Answer form), and that they will refer the client to a legal services agency if the client’s legal needs go beyond that.  The Justice Advocates must sign an affidavit saying they will follow the New York Rules of Professional Conduct regarding conflicts of interest, confidentiality and informed consent, and will provide their services free-of-charge.  They are warned that if they violate these guidelines, they can be terminated from the Upsolve program or be prosecuted for UPL.

But Upsolve went even further to protect itself and its Justice Advocates from a UPL claim.  It filed a federal lawsuit to enjoin the New York Attorney General from enforcing the UPL statutes against the Justice Advocates program – even though the AG had neither brought charges nor threatened to do so. Upsolve argued that such enforcement would violate Upsolve’s and the Justice Advocates’ First Amendment rights.  In a rather surprising decision, Judge Crotty granted the injunction.

            Judge Crotty’s decision centered on whether Upsolve was likely to succeed on its First Amendment argument.  In three distinct stages, he steered the First Amendment analysis so as to allow him to apply “strict scrutiny” to any attempt to regulate Upsolve’s activities.

            First, despite noting that, in the absence of an attempt to enforce the rules against Upsolve, the challenge would normally be considered “facial” (an attack on the Rules of Professional Conduct themselves) and thus, because of its breadth, “highly disfavored” [Upsolve, Slip Op.at 10], Judge Crotty viewed “the more sensible approach” as treating this as an “as applied” challenge.  Id. at 10-11.  This was because the challenge focused only on Upsolve’s narrowly-directed program.  “They seek to allow members of a specific group to give legal advice about a specific legal topic – debt collection cases – with specific parameters about how those member would go about giving that advice.”  Id.  

            Second, despite conceding that “lower courts have overwhelmingly concluded that UPL statutes [are generally given broad deference] because they regulate professional ‘conduct’” and only incidentally involve speech – for example, they may regulate the provision of legal advice, but only in connection with a legal activity, such a trying a case or writing a will – that is not so with Upsolve.  Id.. at 17-18. All the Justice Advocates do is provide “out-of-court verbal advice,” and any UPL prosecution would seek to regulate pure speech.  This requires strict scrutiny. Id.

            Third, the Court found that legal advice was not among “the special categories of pure speech that the government can regulate without scrutiny.”  Id. at 25.  The Court held that only “a type of speech . . . historically rooted in a tradition of regulation going back to the [f]ounding” of the U.S. fits within that category.  Id.  Legal advice, the Court found, had not been regulated for that long – only since the post-Reconstruction period.  Id. at 25-26.

            Having found that any attempt to regulate Upsolve’s program required “strict scrutiny,” the Court upheld the First Amendment challenge.  While recognizing the public benefit of having UPL statutes, he found that rationale “less compelling in the context of Plaintiffs’ specific, narrow mission.” Id. at 27.  He noted the numerous client protections featured in the training manual, including required compliance with the ethics rules, providing services for free, and disqualification from the program for failure to comply.  Moreover, implementing the Upsolve program promotes judicial efficiency:  “more New Yorkers will respond to their lawsuits and begin th[e] adversarial process, rather than default entirely,”  as they are doing now.  Id. at 28.  In this limited context, the Court found, First Amendment considerations outweighed the need for UPL regulation.

            I am no First Amendment scholar, but even I can see that the Court’s argument is rather labored, as the Court dances around concededly contrary precedent to achieve what it perceives as the correct result.  More concerning is the notion that legal advice disconnected from “conduct” – as a lot of legal advice is – may have more First Amendment protection and thus be less subject to regulation.  If the advice to be provided by Upsolve were provided instead by an unadmitted “notario” for a fee, would it really be less subject to First Amendment protection?  If so, why?  If not, does that result adequately protect the public?

            Still, from the standpoint of access to justice, the decision to allow Upsolve to pursue its program is the right one.  The need is indeed great:  as noted, many litigants in consumer debt cases default because they cannot find or cannot afford a lawyer.  While legal services agencies claimed, in amicus briefs, that they “do not turn away clients,” the fact is, as the Court noted, that “the State’s own forms encourage defendants to file their answers pro se,” indicating that these lawyers are not meeting the existing need.  Id. at 29.  Upsolve’s “program does not need to reach every potential client to strengthen the legal system.”   And strengthen the legal system it will!

            But there has to be a better way for a program like Upsolve to exist than fighting dodgy constitutional battles.  As Jacoby & Meyers, LLP learned five years ago when it challenged New York’s rule against nonlawyer ownership so it could more easily raise capital to serve its middle-income clientele, such attacks on the existing order often go down to  defeat.  Jacoby & Meyers, LLP v. Presiding Justices of the First, Second, Third & Fourth Departments, 852 F.3d 178, 181 (2d Cir. 2017).  Who knows if Judge Crotty’s decision will survive appeal?  Three preferred solutions immediately come to mind.

            First, we can redefine the “practice of law” to exclude the type of service that Upsolve is providing:  one aimed at indigent clients, pursued under tight controls, containing consumer protections, and with no monetary incentives for abuse.  As just one example, we make similar exceptions to the rule prohibiting compensation for lawyer “recommendations” under Rule 7.2(b), by allowing legal services organizations, Bar association referrals and union plans, among others, to be compensated for referrals.  We can do the same thing with the UPL statutes and rules.

            Second, we can also develop a program to allow licensed nonlawyers to provide certain limited legal services, such as filling out bankruptcy forms, assisting with uncontested divorces, answers in  consumer debt parts, and the like.  As pointed out in Upsolve, Wisconsin, Washington, Arizona and California, among other jurisdictions, have allowed some form of nonlawyer assistance.  Upsolve, Slip Op.at 30.  Even New York allows Housing Court navigators to provide limited guidance to pro se litigants in the courthouse. 

            Third, New York should follow Utah’s lead and develop a “regulatory sandbox,” where those who wish to explore legal services models outside our current regulatory structure can do so under tight supervision.  Upsolve’s program would have been a perfect fit for that model. 

            The short of it is that we continue to strictly adhere to a regulatory structure that is not meeting the needs of indigent and middle-class litigants, who simply cannot afford to hire a lawyer and have little choice but to handle their problems pro se.  We are constantly told that our existing lawyer regulatory structure, allowing only lawyers to provide legal serviced, is the only way to protect the public and uphold “core values” of our profession.  It is as if doctors suddenly decided to get rid of registered nurses, nurse practitioners and the like, because it is better to have no medical help at all than a “lesser” service. 

            We know that is not true for medicine, and we know it is not true for us. As Judge Crotty implicitly found, the Upsolve program will satisfy our profession’s “core values” despite the fact that its Justice Advocates will  not be lawyers.  We will never know if other, equally useful and protective alternative models can be developed unless we create regulatory structures to let people try.

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Ronald C. Minkoff

Treasurer, NYCLA

The views expressed here are my own, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.

New York County Courthouse Takes “Centre” Stage

Three Initiatives Breathe New Life and Understanding into 60 Centre Street, One of Manhattan’s Most Beloved Legal Landmarks

By Adrian I. Untermyer, Esq.

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The grand colonnade of the New York County Courthouse is illuminated by the evening sun. (Credit: Adrian Untermyer)

NEW YORK, NY – “Manhattan Supreme Court,” as the New York Times’ James Barron succinctly put it[1] , “is famous as a backdrop for the television show ‘Law & Order.’” But as the New York County Courthouse at 60 Centre Street (“Courthouse”) celebrates its 95^th birthday in 2022, this distinctive, six-sided judicial monolith is finding new relevance with exhibits, art installations, and a lengthy feature in a new legal history of New York County – all while continuing its robust roster of legal duties.

The Courthouse’s ornate interior is replete with architectural detail and references to legal history. (Credit: Adrian Untermyer)

The imposing Courthouse fills out the northeast corner of Foley Square in Lower Manhattan and is home to the Civil Branch and Appellate Term of the Supreme Court of New York County. Other duties include housing chambers of the Hon. Milton Tingling, who serves with distinction as the first Black New York County Clerk and is believed to be the first county clerk in New York State history to first serve as a Justice of the Supreme Court.

Today’s Foley Square site was not always a locus of the law. The Courthouse’s plot previously formed part of a rough-and-tumble tenement community[2]  known as “Five Points.” Up until the 1920s, Manhattan’s Supreme Court resided in a series of other mixed-use buildings, culminating in its penultimate location within the so-called “Tweed Courthouse.” That structure – which remains in use as the headquarters of New York City’s Department of Education – earned its “Tweed” moniker thanks to the antics of William “Boss” Tweed [3] , leader of the Tammany Hall political machine. Tweed and Tammany infamously worked to pad construction costs on the old courthouse and pocket the excesses.

An 1871 cartoon depicts “Boss” Tweed with a head full of cash, in reference to his motivations on the “Tweed” Courthouse job and many others. (Credit: Thomas Nast, Public Domain)

By the early 1900s, with Manhattan’s population burgeoning with new immigrants drawn to new industries, the borough’s courts found themselves overcrowded and overextended. In response, Manhattan civic leader[4] George F. McAneny joined forces with a host of other local luminaries to push for a new courthouse district north and east of City Hall. Today’s Courthouse opened in 1927 as the result of that effort and was handsomely designed by notable Boston-based architect Guy Lowell.

The Courthouse was well-received in its time, and even saw some improvements over the years. In 1936, a thirty-foot-high mural entitled “Law Through the Ages” was completed in the Courthouse’s massive central rotunda. The mural was crafted by artist Attilio Pusterla thanks to Depression-era Works Progress Administration funds, and depicts our society’s legal history in bright, vibrant detail that can still be witnessed today.

The Courthouse’s magnificent rotunda is home to a WPA-era mural depicting what attorney and historian Brad Vogel dubbed the “lawgivers” across the centuries. (Credit: Adrian Untermyer)

Yet time was not kind to the old courthouse. Both fiscal crises and general apathy took their toll, and some portions of the structure deteriorated. The building’s devotees, including the late and longtime New York County Clerk Norman Goodman, and his deputy, John Werner, often found themselves springing into action to solve preservation crises. “We raised as much as $750,000” for repairs, recalled Goodman in a 2009 oral history[5] , who also remembered “put[ting] a stop” to an ill-fated City initiative that would have ripped out the Courthouse’s distinctive Tiffany chandeliers in favor of fluorescent lights.

Elements of the “Magnificent Mr. McAneny” exhibition are on display beneath the “Law Through the Ages” mural in the Courthouse’s rotunda. (Credit: Brad Vogel)

There is plenty of restoration still to be done. Yet today’s post-COVID Courthouse brims with energy and vigor thanks to three recent interventions. First up is a new traveling exhibition located underneath the “Law Through the Ages” mural in the monumental rotunda area. Entitled “Magnificent Mr. McAneny”  and curated by your correspondent, the exhibit traces the aforementioned George F. McAneny’s life and legacy, including his efforts to bring the complex Courthouse project to fruition. For full details and to plan your visit, head to the Friends of George McAneny’s website[6] .

Second-in-line is a triumphant work of public art honoring one of New York County’s forgotten legal heroines: Rebecca Salome Foster, who was known as the “Tombs Angel” for her work ministering arrestees held in New York County pending trial. As the New York Times’ Peter Libbey wrote [7] , Foster lent “[a] sympathetic ear” to the incarcerated, along with “a zeal to investigate their cases and a willingness to plead their cause with judges.”

The “Tombs Angel” tragically passed in the 1902 Park Avenue Hotel Fire. Although mourners installed a nearly thousand-pound memorial in the Criminal Courts to her memory, it was dismantled and nearly lost following that building’s demolition. Luckily, the aforementioned John Werner spearheaded the memorial’s restoration and reinstallation inside the Courthouse’s entrance chamber.

The memorial to “Tombs Angel” Rebecca Salome Foster is now on permanent display in a niche to the right of the Courthouse’s main entrance, and was lovingly restored by A. Ottavino Corp. (Credit: Adrian Untermyer)

To visit it, head up the main outdoor staircase and head to the right-hand alcove just inside the Courthouse doors; to learn more about Foster’s legacy, see John Werner’s recent piece [8] on the Judicial Notice blog.

Last-up in the Courthouse’s newfound resurgence is its prominent place in a new volume published by the Historical Society of the New York Courts. This “History of New York County Bench and Bar” devotes an entire chapter to the long and chaotic sequence of events leading to the Courthouse’s formation. The chapter is authored by New York University’s Dr. Jon Ritter and may be downloaded by visiting the County Legal History page [9] of the Historical Society of the New York Courts’ website and clicking on “New York County.”

Taken together, these three signature initiatives are intended to raise awareness of the Courthouse’s unique role in the history of New York and the nation. One can only hope that the added attention will result in a robust, “tip-to-tail” restoration effort in time for the Courthouse’s 100^th birthday in 2027.

The Courthouse’s remarkable fourth-floor Jury Assembly Room is named for the late County Clerk Norman Goodman and features extensive murals depicting the history described within the new “History of New York County Bench and Bar.” (Credit: Adrian Untermyer)

But even if the culmination of these efforts brings just one more visitor to 60 Centre’s hallowed walls, the spirits of George F. McAneny, Rebecca Salome Foster, Norman Goodman, and so many, many others will doubtlessly rest easier – all knowing that the spirit of justice remains alive, well, and kicking on that unforgettable corner abutting Foley Square.

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Adrian Untermyer is an attorney, urbanist, and historian specializing in New York’s legal and transportation legacies. He fell in love with 60 Centre Street as a college student living in the neighborhood and worked extensively inside the building over the ensuing years. Untermyer curated the Magnificent Mr. McAneny exhibition inside the Courthouse and served as Editor-in-Chief and co-author of the “History of New York County Bench and Bar.” For further information, please visit www.adrianuntermyer.com.

REALLY, JUSTICE AND MRS. THOMAS?

REALLY, JUSTICE AND MRS. THOMAS?

After four years of a law- and norm-breaking presidency, followed by denial and lies about the results of an election, followed by an attempted coup, followed by continued denial and lies and also a trend simply to toss congressional subpoenas in the trash and disregard them, I thought my capacity for shock, amazement, revulsion and disgust were completely tapped out.  But I was wrong.  Just when I thought there couldn’t possibly be THAT MUCH more law- and norm-breaking, along come news reports that Justice Thomas’s wife Ginny was promoting QAnon conspiracies and urging President Trump’s chief of staff to reject the results of the election and mount a coup.  She may not have intended it to be a violent coup, as was attempted, fortunately unsuccessfully, and even incompetently, on January 6, 2020.  But make no mistake about it, it was a coup that she was advocating.

How can the wife of a Supreme Court Justice advocate the overthrow of our democracy?  Has she no sense of propriety, or shame?  And how could Justice Thomas not take steps to stop her?  Outright lies are not a good foundation for a sound judicial system.  Nobody is the keeper of their spouse, but when a spouse of a sitting Justice on the Supreme Court does something wrong, the Justice inevitably suffers taint by association at a minimum.  And we know that Ginny Thomas has long held extreme right-wing views, associating with portions of the Republican Party that also subscribe to those views for whom Justice Thomas has sometimes served as a fellow traveler.  We’re not talking about the Federalist Society here.  We’re talking about crazy right-wing nut jobs.  Notwithstanding their theories, not a single court in the entire United States of America found ANY evidence of election fraud sufficient to reverse the results of the last election.   

How can we have confidence in our government and institutions when this goes on?  I may not always agree with the substance of Chief Justice Roberts’ rulings, but I do believe he is doing his best to try to uphold the legitimacy of our Supreme Court.  But he sounded like a naif when he said, following these disclosures, that he had confidence in the ability of his fellow justices to decide when they were sufficiently conflicted to have to recuse themselves.  Justice Thomas has been deciding voting cases, and cases dealing with issues arising out of the January 6 attempted coup!

The core standard for recusal is facts and circumstances which might cause a reasonable person to doubt a Justice’s impartiality.  Each Justice is allowed to assess that for himself or herself, which frankly is stupid.  If you’re conflicted you are the worst person to make that assessment.  That’s why law firms have conflict committees.  It is time for the Supreme Court to hold itself to the same standard all other judges and lawyers are held.  We need a formal ethical code applicable to the Supreme Court, where Justices are not allowed to make their own recusal determinations.  I think I’m a pretty reasonable person, and I know I question Justice Thomas’s impartiality at this point.  This goes well beyond substantive disagreement with particular outcomes.

We also need a thorough investigation, by the January 6 committee or another congressional body, of the full scope of Mrs. Thomas’s advocacy, and Justice Thomas’s role, if any, in supporting it, as well as the knowledge that he had about it.  The disclosure was likely the result of a leak from the January 6 committee, so I get that may not be the best place to investigate what it was that was leaked. 

We also need a Justice who has a sense of propriety and shame on public exhibition. 

We may get the first two of my suggestions, but I very much doubt we’ll get the third.

I am perfectly well-aware that, as we head into the midterm elections, President Biden and the slim majority the Democrats have in both houses of Congress are not as popular as they would like.  Indeed there are many things about what those Democrats have been advocating that I strongly disagree with.  But I also think that it is undeniable that the Republicans have not yet paid penance for their systematic attempts to undermine our democracy sufficient that we should be prepared to trust them so quickly to hold power yet again.  They need to spend more time in the penalty box, and to show that they understand this is a six minute if not a game major penalty, not a two minute minor.  The revelations about Justice and Mrs. Thomas are unfortunately a part of the Republicans’ failure to acknowledge and understand the full scope of their wrongdoing.

I will also say, as a former partner of Arnold & Porter, that this appears to be much worse than what got Abe Fortas booted from the Supreme Court more than 50 years ago.   

I am shocked, amazed, revolted and disgusted.  And I fear for our democracy.  When a sitting Justice on the Supreme Court of the United States and his spouse are so closely associated with such profoundly anti-democratic views, supported by outright lies, how can one be confident that our democracy will prevail?

                                                                                          Richard P. Swanson

                                                                                          Vice President, NYCLA

The views expressed here are my own, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.

WHEN YOU REALLY WANT TO DO SOMETHING UNCONSTITUTIONAL, REMEMBER TO ASK THE SUPREME COURT FOR A STAY

The Supreme Court has once again raised questions about its use of the shadow docket to grant stays in cases where the challenged actions were clearly unconstitutional based on existing decisional law, except the Supreme Court, by granting stays, permitted the unconstitutional actions to continue.  How did this happen?

In the Alabama voting rights case, which I blogged about here on February 10, the lower court held an election district map intentionally and improperly diluted Black votes through extreme gerrymandering, in violation of the Voting Rights Act.  The Supreme Court stayed that ruling while it reviews the case, on the ground that the possible map adjustments ordered by the court below came too close to this year’s midterms.  I believe that ruling was substantively incorrect, as I argued in the previous blog post.  There could not possibly be an earlier litigation given the timing of release of census data necessary for redistricting, which only happened in November; the time necessary to use that data to draw the maps; and then the time to litigate to challenge the maps.  If not now, then when?

Additionally troublesome, however, is the standard that the Supreme Court used in granting a stay.  Justice Kavanaugh said that to be granted a stay, a petitioner “ordinarily must show (i) a reasonable probability that this Court would eventually grant review and a fair prospect that the Court would reverse, and (ii) that the applicant would likely suffer irreparable injury absent the stay.”  That is, quite simply, not a correct statement of the law, unless he has the power to change the law in a concurrence.  The standard for a stay ordinarily is a STRONG likelihood of success on the merits; irreparable harm absent a stay; that the petitioner’s harm outweighs the harm from granting a stay; and that the public interest would be furthered by the granting of a stay.  Innumerable cases, in the Supreme Court and the Courts of Appeal, could be cited for this basic proposition. 

Reading the two standards together, it is easy see how the standard articulated by Justice Kavanaugh is far easier to meet.  Strong likelihood of success is more stringent than a reasonable probability; and there is no mention by him of balancing the harms, which is particularly important here.  Granting the stay gives the Republicans the gerrymandered map that they want, but at the cost, as the lower court found, of diluting Black votes.  Whose harm is more irreparable, or more important?

It wasn’t as if the Court simply overlooked the point.  Chief Justice Roberts, in a dissent to the stay application, said that the lower court’s ruling was plainly a correct interpretation of vote dilution under existing law and precedent, and Justice Kavanaugh made no effort to dispute that.  If so, how can you say there is even a likelihood of success, let alone a strong likelihood, unless the five conservative Justices (six, minus the Chief), have already decided to circumscribe existing law under the Voting Rights Act, before briefing let alone argument.  And how can you look at only one side’s position on irreparable harm?  Certainly Blacks whose votes are diluted have irreparable harm.  So, stay practice, including the misapplication of the stay standard, may result in permitting illegal, if not even outright unconstitutional, behavior.

Something similar happened in the Texas bounty hunter abortion case, which I’ve also blogged about.  In that case there was full briefing and argument, on the issue of remedies for a six week abortion ban, which is plainly unlawful under existing law (Roe and Casey).  After the Court’s decision, there was a remand, and the Fifth Circuit certified a question about remedies under state law to the Texas Supreme Court.  In the meantime, the plainly unconstitutional statute continued in place.  The plaintiffs took issue with how the Fifth Circuit was handling the remand, seeking in the Supreme Court to stay the certified question proceeding and to compel the case to be sent back to the District Court.  The Supreme Court denied that application, and between that stay denial and the manner in which the Fifth Circuit is handling the matter a plainly unconstitutional statute is continuing to be enforced.  We all know we’re awaiting the Dobbs decision which may significantly alter the constitutional law on abortion, but at the moment a six week ban is unlawful.

What the two cases do have in common is the fact that many observers believe the Supreme Court is prepared to restrict both abortion and the Voting Rights Act.  The Court’s rulings on stay applications may simply presage that.  But that is also not a good thing.  The Court shouldn’t be anticipating intended changes in the law in such a fashion.  What is the purpose of briefing and argument if the issue has already been pre-judged?  And how can the Court retain institutional legitimacy if it can be perceived to have pre-judged, and even to have a jurisprudential agenda?

Richard P. Swanson

                                                                                          Vice President, NYCLA

The views expressed here are my own, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.