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Sunday, August 1, 2021

UC Davis School of Law professors weigh in on Supreme Court cases

PHIL RODER [CC BY 2.0] / FLICKR
Gerrymandering, human rights, sexual orientation, travel bans and corporations taken up

Gill v. Whitford

This case takes up partisan gerrymandering in the state of Wisconsin. The case was reviewed by a three-judge federal district court and was argued before the Supreme Court on Oct. 3, 2017. Christopher Elmendorf, a professor at the UC Davis School of Law, focuses on the connections between law theory and political science and empirical data. Concerning this case, Elmendorf wrote and submitted an amicus brief, or a friend of the court statement, on behalf of political scientist Eric McGee. The brief informed the court of the efficiency gap, developed by McGee.

“The efficiency gap is a measure of the relative number of wasted votes cast for each party, where wasted vote is defined as a vote that was not necessary to win any legislative seat,” Elmendorf said.

Elmendorf explained gerrymandering for the layman.

“Gerrymandering is the design or drawing of legislative districts for the purpose of achieving political advantage,” Elmendorf said. “In this case, the judge district court found that the Wisconsin legislative map was an unconstitutional partisan gerrymander. That was a very unusual and momentous decision by the three judges of the district court. So it was almost a foregone conclusion that the U.S. Supreme Court would not only simply hear the case […] but also that the court would schedule the case for oral argument and would end up writing a pretty careful opinion or set of opinion.”

Thus the court takes up the question of whether the Republican-drawn legislative map offered an unconstitutional partisan advantage in elections. The Supreme Court questions the decision-making of the lower court at the same time that it interrogates its methods to arrive at the decision and whether gerrymandering is “justiciable.”

According to Elmendorf, this case is important to the electoral process and the courts and also important to voters everywhere.

“All citizens have an interest in being fairly represented,” Elmendorf said.

 

Masterpiece Cakeshop, Ltd v. Colorado Civil Rights Commission

This case takes up the free exercise and free speech clauses of a baker from Colorado who refused to make a wedding cake for a same-sex couple. Although Colorado has a civil anti-discrimination law in place to protect customers such as the couple involved, this case was appealed to the Supreme Court in order to determine if constitutional law protects the baker’s choice to deny service. Professor Brian Soucek and professor emeritus Alan Brownstein both weighed in on the case. Soucek works on anti-discrimination law, specifically pertaining to issues of sexual orientation and refugee and asylum cases, while Brownstein focuses on church-state issues.

Both scholars agreed that, regardless of the ultimate decision made by the courts, the nature of their writing could have immense impacts on the precedent going forward. A broad-reaching decision could allow business owners to deny services to people belonging to many identity categories based on religious preference. A narrow decision, conversely, could simply allow specialty bakers to refuse to make wedding cakes for same-sex couples if doing so would conflict with their religious beliefs.

“On the side of the same sex couple that wanted a cake, there’s several decades of precedent that says that you don’t get […] an expressive or religious exemption from antidiscrimination law,” Soucek said.  “On the cake baker’s side […] probably his best case is one out of Massachusetts where in the annual St. Patrick’s Day parade […] did exclude a gay rights group […] and the Supreme Court said, ‘Yes, parades are a form of expression, parades are inherently expressive.’ He wants to say that his cakes are also inherently expressive and that he shouldn’t be compelled to say, as he thinks his cakes do, ‘I celebrate this marriage.’”

Brownstein, like Soucek, gives more credence to arguments that invoke the free speech protections of the Constitution. According to Brownstein, an argument that hinges on the free exercise clause may not hold up in court given the precedent set by Employment Division v. Smith.

“What’s a more serious argument is the baker’s claim that the anti-discrimination laws application to him in this context violates the free speech clause, because it compels him to communicate a message that he objects to,” Brownstein said. “The free speech clause not only prohibits the government from stopping people from speaking, it also prohibits the government from compelling people to speak.”

Regardless of the potential the free speech clause has to protect the baker, Brownstein ultimately finds that cake-baking may be closer to conduct than speech, which the government is able to control in this case. Soucek is aware of the impact this could have on the UC Davis community in the case that the court decides on the side of the baker, whether their decision is supported by the free exercise clause or the first amendment.

“California is like Colorado, it has laws that protect against sexual orientation discrimination so if you poke holes in those laws in Colorado you would being poking those same holes in California,” Soucek said.

 

Trump v. Hawaii

For the third time since he was sworn into office, President Trump has proposed a travel ban on certain countries. This time, it will be reviewed by the Supreme Court. Argued on April 25, the intent of the ban will play a big role in determining its constitutionality. Professor Soucek weighed in on Trump’s discourse surrounding immigration from several majority-Muslim countries.

“The question is whether all the things that he said about keeping Muslims out of the country — even though he said it during the campaign and said it at the time of the first ban, because he’s never really distanced himself from that language — the question is whether we should interpret the third ban in the same way as a Muslim ban, which then would be potentially constitutionally problematic because it seems to be based in religious animus,” Soucek said.

Should the immigration law be based in fear or hate, there will not be a constitutional protection for it. Unfortunately drawing parallels to Korematsu v. United States, in which false justification was given to support the internment of Japanese Americans, Trump’s lawyers must prove that immigration from these countries poses a threat to national security.

“What is the intent behind banning people from these set of countries, and if the intent is ‘We need to do this for national security,’ then […] the courts are definitely going to defer to the executive branch on that. If, however, they picked certain countries because they want Muslims out, then that makes it a much worse case for the president. Korematsu […] accepted the government’s claim that national security made the internment necessary. The government has since said that they gave misleading information to the court. Even though it’s never been explicitly overturned […] it’s widely assumed to be one of the Supreme Court’s worst cases.”

The outcome of the Supreme Court’s decision will have an immediate and certain impact on the UC Davis community not unlike the anxieties already felt about Trump’s attitude toward migration on the U.S.’s southern border. According to Soucek, students, faculty and friends alike will find Davis inaccessible.

“The list of affected countries of course includes countries that Davis students come from and that relatives or fiancés or others of Davis students come from, and so the travel bans have certainly had a tangible effect on […] who’s able to come here. If they’re denied student visas due to the travel ban obviously they won’t be able to come to or continue at Davis.”

 

Jesner v. Arab Bank, PLC

Although this case has already been decided officially by the court, Martin Luther King professor of law William S. Dodge explained how it case seems to establish a more nuanced decision in its language than its “head count.” The court here made a decision on the culpability of the Arab Bank under the alien tort statute for funding acts of terrorism.

“If you’re just counting heads, the right decision on customary international law won out, even though it doesn’t become the holding of the court,” Dodge said. “The court fractured in the case, but basically it held that foreign corporations couldn’t be sued under the Alien Tort Statute. Justice Kennedy wrote a broader opinion for three judges saying that probably corporations more generally couldn’t be sued. Justices Gorsuch and Alito wrote narrower opinions that were restricted to foreign corporations. Justice Sotomayor […] was joined by three of her colleagues […] that took the position that corporations were no different in this respect than individuals and both could be sued for human rights violations.”

This case took up the funding, by the Arab Bank through New York, of terrorist actions by Hamas in Israel, the West Bank and Gaza. Dodge filed an amicus brief given his expansive knowledge of the Alien Tort Statute of 1789, which allows the U.S. federal courts to try a case brought in the U.S. that violates the international customary law, or the law of nations.

“The question in that case was whether corporations can be sued for human rights violations in U.S. court under the Alien Tort Statute. I wrote an amicus brief […] to try to help the court understand how customary international law rules are determined and what their relationship is to the remedies that the domestic system may provide. The brief was joined by a bunch of international law scholars, some international judges and trying to provide just the basic primer for the court on customary international law.”

In addition to the Alien Tort Statute, the Sosa standard is also significant to discourse around violation of customary international law. This standard was developed in a previous case and establishes the human rights violations punishable under the Alien Tort Statute.

Dodge explained that, while it’s incredibly difficult to charge an organization like Hamas with human rights violations, some scholars are opposed to this case being brought in a U.S. court in the first place.

“You had foreigners suing a foreign bank in U.S. court, and that was one of the reasons that a majority of the court thought that the case shouldn’t be brought here in the United States,” Dodge said. “It’s being brought to get at the folks that are funding or facilitating the terrorism because it’s hard to sue the terrorists themselves.”

Dodge finds that, despite the conflict on this level of the case, its content and aims may be extremely relevant to UC Davis students concerned with human rights and international justice. He locates this case within the realm of “accountability” for international wrongs in the domestic sphere.

“One is just the basic question of international human rights and accountability for violations of international human rights,” Dodge said. “We’re lucky that in Davis there aren’t many violations of international human rights, but there are many places in the world and many people in the UC Davis community care about what happens in the rest of the world. This case is about accountability for that.”

 

Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd.

Argued on April 24, this case is an antitrust suit against a Chinese vitamin C seller to the United States. This case contends with international comity, accepting the law of another nation as represented by its own lawyers and the sometimes contradictory trade laws and consequences of two nations joined by commerce. Professor Dodge, with a focus on international law and in collaboration with another law professor, filed an amicus brief with the Supreme Court.

Dodge notes two primary questions guiding the case, the first being establishing the correct representation of the Chinese law that compulses sellers to fix prices and the second being the liability of sellers in the U.S. given the correct interpretation of Chinese antitrust law.

“The first question is, ‘How does U.S. court determine what foreign law is?’ That’s the question the U.S.Supreme Court decided to hear. There’s another question of what effect that should have then on their liability under U.S.antitrust law. The brief that I wrote basically just suggested that the court should not decide that second question because the decision that the second circuit made […] is in fact inconsistent with the way the Supreme Court has approached this question in two different lines of cases. I didn’t want the Supreme Court inadvertently, in deciding the first question, to prejudge the second question.”

This antitrust case, the decision for which has not yet been made by the Supreme Court, was heard by the Second Circuit Court of Appeals previously. That court decided that not only should U.S.courts accept Chinese law around price coordination as represented, it should dismiss the case based on international comity.

Dodge is fascinated by this case, especially in the context of the second question that the court could answer and the potential culpability of Chinese vitamin C producers profiting in a U.S.market. Furthermore, Dodge can identify the impacts that the outcome of this case could have on UC Davis.

“Consumers benefit when companies have to compete, whether that’s vitamin C sellers or people who sell the coffee that fuels UC Davis students.”

 

 

Written by: Stella Sappington — features@theaggie.org

 

1 COMMENT

  1. No mention of Janus v. AFSCME eh? Makes sense if you think about it. UCOP filed an amicus brief in support of public sector union busting. But the University openly admitting to that position would put some chinks in the notion they really care about civil rights and social justice, as opposed to just paying convenient lip service.

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