Keeping the Government's Religion Pure: Pleasant Grove City v. Summum

Christopher C. Lund[*]

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In January, the Supreme Court decided Pleasant Grove City v. Summum.[1]  Summum, a religious organization, sought the right to put up a permanent monument of its Seven Aphorisms—its version of the Ten Commandments—in a local city park.  At the time, the park had about fifteen other monuments, including a traditional Ten Commandments display.  But this was a Free Speech case, not an Establishment Clause case.  The plaintiffs were not trying to use the First Amendment to have the existing Ten Commandments display removed; they were instead trying to use the First Amendment to force the city into displaying their monument as well.

Most people expected the plaintiffs to lose.  And they did, clearly and unanimously.  I publicly predicted that Summum would lose on the day the Supreme Court granted certiorari,[2] and suggested that it might be unanimous a few hours after oral argument.[3]  But I do not claim any special powers of foresight.  My point is actually the opposite—anyone with experience in this area could recognize that the plaintiffs faced an uphill climb.  They were asking for a sweeping change in the law, and it was no surprise that they did not get it.

This Essay explains the decision in Summum, giving special focus to the religious dimensions of the case.  Summum, again, was decided on Free Speech grounds.  It was not an Establishment Clause case.  But it nevertheless reveals much about the course that the Supreme Court is now charting with the Establishment Clause.

Lessons Learned from Forest Grove School District v. T.A.: How the Supreme Court Can Refine the Approach to Private School Tuition Reimbursement Under the IDEA

Courtney Rachel Baron[*]

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I.  Introduction

On April 28, 2009, the Supreme Court heard oral argument in Forest Grove School District v. T.A.,[1] a case that addresses a deeply contested issue in special education litigation.  Reviewing the Ninth Circuit’s decision in Forest Grove, the Court will decide whether the Individuals with Disabilities Education Act (IDEA)[2] entitles parents to reimbursement for their child’s private school education if the child has never received special education services provided by a public school.[3]  Forest Grove represents the latest of many cases to perpetuate the circuit split on this issue.  In fact, in 2007, the Supreme Court addressed the same question in Board of Education v. Tom F.[4]  Just two weeks before the Court heard argument in Tom F., however, Justice Kennedy recused himself,[5] resulting in a 4-4, non-precedential decision affirming the Second Circuit’s grant of reimbursement to parents facing circumstances similar to those presented in Forest Grove.[6]  Currently, the Second,[7] Ninth,[8] and Eleventh Circuits[9] recognize the availability of reimbursement, while in contrast, the First Circuit[10] has refused to do so.

Because of the growing divide between the circuits, many parents of children with disabilities face uncertainty about whether they will be reimbursed if they choose to enroll their children in private schools.[11]  The Supreme Court should end parents’ uncertainty by affirming the Ninth Circuit’s decision in Forest Grove and holding that parents who enroll their child in private school before that child has received publicly provided special education services are not precluded from tuition reimbursement under the IDEA.  The language and intent of the IDEA and the balance of policy considerations support the Ninth Circuit’s decision.  More importantly, the Court should capitalize on its opportunity to refine the judicial approach to private school reimbursement cases by adopting an analytical framework that encourages parents and schools to cooperate more closely.

Interrogations and the Guiding Hand of Counsel: Montejo, Ventris, and the Sixth Amendment's Continued Vitality

Bidish J. Sarma,[*] Robert J. Smith,[**] & G. Ben Cohen[***]

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Introduction

The Supreme Court recently heard arguments in two cases that implicate the Sixth Amendment right to counsel: Montejo v. Louisiana[1] and Kansas v. Ventris.[2]  Although each case presented a relatively narrow Sixth Amendment right to counsel issue, the subtext of both oral arguments suggests that the Court is rethinking the scope of the Sixth Amendment core values themselves.  Since holding that the Fifth Amendment provides for a right to counsel in custodial interrogations, the Court has conflated the Fifth Amendment[3] prophylactic rule with the Sixth Amendment right to counsel.[4]  The resulting jurisprudential disorder has prompted several Justices to consider a wholesale collapse of the Sixth Amendment right to counsel at interrogations into the Fifth Amendment Miranda[5] framework.[6]  This short essay explains why the Court should resist the temptation to do so.

Law Upside Down: A Critical Essay on Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc.

Franklin A. Gevurtz[*]

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Introduction

Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc.[1] is one of the most contentious securities law decisions handed down by the United States Supreme Court in recent years.[2]  At issue in the case was the scope of liability created by § 10(b) of the Securities Exchange Act of 1934 and by Rule 10b-5, promulgated pursuant to that section.[3]  Specifically, the Court considered whether parties beyond the corporation issuing a false financial report could be held liable to private plaintiffs for their fraudulent acts in violation of these provisions.[4]  The defendants in the Stoneridge case were (in a somewhat unusual set of facts) third-party vendors of the corporation issuing the false statement,[5] but everyone understood that the Supreme Court’s decision would impact accountants, lawyers, investment bankers, and the like, who have been involved in transactions resulting in fraudulent financial reporting.  As a result of the decision’s anticipated impact, the Supreme Court was inundated with amicus briefs.[6]  Given the current leaning of the Supreme Court, victory for the defendants in Stoneridge was probably predictable.  Nevertheless, the decision is worth academic discussion because it illustrates how utterly irrational the law governing private securities fraud actions has become.[7]

Remand and Appellate Review Issues Facing the Supreme Court in Carlsbad Technology, Inc. v. HIF BIO, Inc.

Deborah J. Challener[*] & John B. Howell, III[**]

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Under 28 U.S.C. §§ 1447(c) and (d), remand orders in removed cases are immune from appellate review when they are based on a lack of subject matter jurisdiction.[1]  Until recently, all appellate courts that had addressed the issue had concluded that when a district court declines to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c)[2] and remands the supplemental claims to state court, the remand is not based on a lack of subject matter jurisdiction and is therefore reviewable on appeal.[3]  In HIF Bio, Inc. v. Yung Shin Pharmaceuticals Industrial Co.,[4] however, the United States Court of Appeals for the Federal Circuit became the first circuit to hold that such remands, sometimes referred to as Cohill remands,[5] are based on a jurisdictional defect and therefore are not subject to appellate review.[6]  On October 14, 2008, the Supreme Court granted certiorari in HIF Bio to resolve the circuit split created by the Federal Circuit.[7]  The Court heard oral argument in the case, now captioned Carlsbad Technology, Inc. v. HIF Bio, Inc., on February 24, 2009. 

This Essay provides a brief explanation of § 1367 and §§ 1447(c) and (d) and argues that the Supreme Court should reverse the Federal Circuit’s decision in HIF Bio.  We contend that the Federal Circuit erred in concluding that Cohill remands are subject-matter jurisdictional because a district court does not remand supplemental claims based on its lack of power over the claims.  Instead, a district court remands supplemental claims based on its discretionary decision under § 1367(c) that a state court is a better forum in which to litigate them.  After establishing that Cohill remands are not subject-matter jurisdictional and therefore are reviewable on appeal, we examine the district court’s remand order and the Federal Circuit’s opinion in HIF Bio.  We assert that in reviewing the remand order in HIF Bio and deciding that Cohill remands fall within §§ 1447(c) and (d), the Federal Circuit incorrectly applied the Supreme Court’s recent decision in Powerex Corp. v. Reliant Energy Services, Inc.[8]  Finally, we offer a few comments about whether Cohill remands should be reviewable on appeal.

St. George Tucker's Lecture Notes, the Second Amendment, and Originalist Methodology: A Critical Comment

Saul Cornell[*]

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More than two hundred years after the publication of his influential edition of Blackstone’s Commentaries, St. George Tucker, the distinguished Jeffersonian jurist, is at the center of controversy.  Gun-rights advocates claim Tucker as their spiritual forebear, but opponents of this view argue that Tucker’s interpretation of the Second Amendment[1] can not be pressed into service in the modern gun debate without doing great violence to his thinking.  The stakes in this intellectual debate have been raised in the wake of the Supreme Court’s historic decision in District of Columbia v. Heller.[2]  In that decision, two very different interpretations of Tucker’s views of the Second Amendment were set out.  Justice Scalia adopted the gun-rights view of Tucker and Justice Stevens took the opposing view. One of the central points of contention in this modern debate over Tucker arises from the learned judge’s earliest discussion of the Second Amendment in his unpublished law lectures.[3]

The Case for a Constitutional Easement Approach to Permanent Monuments in Traditional Public Forums

Paul E. McGreal[*]

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Imagine that you are mayor of a small town that has a picturesque public park, removed from the town center, where your residents come to escape the hustle and bustle of everyday life.  To make the space inviting, you have built a gazebo, a picnic area, and a playground for the local children.  You have also allowed a local veterans group to erect a permanent monument honoring those from the town who died in war.  Then, a local group asks permission to hold a political rally in the park.  You deny the request, explaining that the park is for peaceful recreation and not for noisy demonstrations.

By denying the political rally, you have violated the First Amendment.  The First Amendment severely limits the government’s power to place content-based restrictions on speech in traditional public forums, which the Court defines as public parks, streets, and other “places which by long tradition or by government fiat have been devoted to assembly and debate.”[1] Further, government may not ban speech activities in such forums.  Thus, your town must allow at least some assembly and debate in the park.

Next, a local religious group asks permission to place a permanent monument in the park.  They explain that the monument will display the central tenets of their faith, which they consider their equivalent of the Ten Commandments.  You deny this request and explain that the only permanent structures allowed are those that serve the park’s recreational purpose.  The religious group points out, however, that you have already allowed placement of a veterans monument.  You respond that a war memorial is a more appropriate message for a public park than a religious monument.  The religious group catches your slip here.  They explain that the park is a traditional public forum, and that you are excluding their speech (the monument) from that forum (the park) based on its content (a religious monument rather than a war memorial).  As a result, they claim, your decision to exclude the religious monument violates the First Amendment.  Incredulous, you object that a permanent monument must be different than more temporary speech, such as a rally or movable display.  After all, if the city had to accept every monument offered by a private group, the park would soon look like a graveyard peppered with headstones.  The religious group persists.  Are they right?

This November, the Supreme Court will hear arguments on this question in City of Pleasant Grove v. Summum.[2]   The precise issue is whether placement of a permanent monument is part of the public’s right to use a traditional public forum.  This question falls in a gap in current public forum doctrine, and the lower courts have reached conflicting results in applying that doctrine.  On the one hand, the Tenth Circuit held in City of Pleasant Grove that permanent monuments are within the public’s right to use a traditional public forum.  This ruling bars the government from regulating private monuments based on their content, effectively leaving a choice between allowing all or no such monuments.  On the other hand, other courts have held that the public’s right to use a traditional public forum does not include placement of permanent structures.[3]   These courts typically announce the rule as a matter of judicial fiat, offering little, if any, reasoning.[4]   Their logic is internally inconsistent and, if applied generally, would lead to unacceptable consequences.

Both of the lower court approaches ultimately prove unsatisfactory because the decisions lack a principled basis to distinguish temporary speech from permanent monuments.  This is not surprising given that the Supreme Court’s existing public forum doctrine provides no basis for doing so.  The lower courts, then, have been trapped in the current doctrinal box.

Is Military Law Relevant to the "Evolving Standards of Decency" Embodied in the Eighth Amendment?

By Corey Rayburn Yung[*]

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On June 25, 2008, the United States Supreme Court issued an opinion in Kennedy v. Louisiana holding that the application of the death penalty to the crime of aggravated child rape violated the Eighth Amendment of the United States Constitution.[1]  The Court reached a contentious five-to-four decision with Justice Kennedy writing for the majority. Applying the “evolving standards of decency” approach to determine whether the punishment at issue was “cruel and unusual,” the Court examined the laws of the states and federal government.  In so doing, the Court wrote that, “Congress in the Federal Death Penalty Act of 1994 expanded the number of federal crimes for which the death penalty is a permissible sentence, including certain nonhomicide offenses; but it did not do the same for child rape or abuse.”[2]

Just three days after the opinion was issued, Colonel Dwight Sullivan noted on the CAAFlog blog that the Court’s statement concerning federal law did not tell the whole story.[3]  In fact, amendments made by Congress in 2006 to the Uniform Code of Military Justice (UCMJ) explicitly allow for the death penalty in child rape cases.[4]  Colonel Sullivan’s post about the omission in the Court’s opinion might have been relegated to the dustbin of Internet history had the leading Supreme Court reporter not taken notice.

On July 2, Linda Greenhouse wrote an article in the New York Times that expanded upon the observation expressed in Colonel Sullivan’s blog post.[5]  Greenhouse noted that it was not just Justice Kennedy’s majority opinion that had overlooked the UCMJ amendment.  There was no mention of the UCMJ in the party briefs, amicus curiae briefs, or Justice Alito’s dissenting opinion.

Greenhouse’s short column set off a firestorm of media criticism attacking the Court’s opinion in Kennedy.[6]  While the criticism initially erupted from traditionally conservative media outlets, calls for rehearing were soon made by those across the political spectrum[7] and throughout the legal blogosphere.[8]  Louisiana filed a petition for rehearing based largely upon the Court’s failure to address the UCMJ amendment.[9]  Although absent from the initial briefing in the case, the Solicitor General’s office also filed a motion in support of rehearing based upon the Court’s omission.[10]  While rehearing motions have very rarely been granted, on September 8 the Court took the unusual step of requesting further briefing on whether the case should be reargued or the original opinion should be amended.[11]  That move by the Court potentially indicates that it is seriously considering rehearing the Kennedy case.

While many of the critics and the Louisiana brief used the omission of the military code revision as a vehicle to attack the greater substance of the Court’s opinion, there emerged a legal issue that clearly required attention: was military law relevant to the Court’s reasoning in such cases?  Based upon an exhaustive review of prior Supreme Court cases and the role of the military in American society, the answer is clearly “no.”  Consequently, it would be a mistake for the Court to grant Louisiana’s motion to rehear the case.

Child Rape, Moral Outrage, and the Death Penalty

By Susan A. Bandes[*]

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Is raping a child as heinous an act as taking a life?  How should the comparative moral depravity of child rapists and murderers be measured?  By what metric can the irrevocable harm murder inflicts on its victims be weighed against the long-term anguish inflicted on child rape victims?  What is the judicial role in gauging the societal outrage and revulsion elicited by these two crimes, and in determining whether the death penalty is an appropriate response to those emotions?

In Kennedy v. Louisiana[1] the Supreme Court struggled with this daunting set of issues, which called for judgments that are inescapably moral and emotional.  The Court also faced contentious questions about the nature and longevity of the psychological injuries to child rape victims and to their families,[2] about whether a capital prosecution would ameliorate or exacerbate those harms,[3] and about whether the strong emotions jurors feel in child rape cases are likely to overwhelm their capacity to decide fairly.[4]  The Kennedy decision is a vivid illustration of the central point Douglas Berman and Stephanos Bibas make in Engaging Capital Emotions: that it is impossible to evaluate the legal issues raised by capital punishment without addressing the role of emotion.[5]

I’ve argued that once we acknowledge “the emotional wellsprings of the retributive calculus” we can have “a more clear-eyed debate about retribution’s proper role in our capital punishment system.”[6]  Berman and Bibas begin this debate.[7]  They argue that child rape should be a capital crime, drawing support from the widely shared moral outrage the crime evokes, and from the crime’s emotional toll on child rape victims and their families.  Although I reach the opposite conclusion on the merits, their essay models precisely the sort of conversation we ought to be having.

Part I of this Reply considers the role of emotion in capital jurisprudence.  Section A discusses the importance of confronting emotion’s role in capital punishment.  Section B explores the difficulties with using moral outrage as a metric.  Section C argues that the penal system should not merely reflect moral outrage, but channel and educate it.  Part II focuses on the role of emotion in deciding whether child rape should be a capital crime.  Section A considers the relevance of victim harm to the question facing the Kennedy court.  Section B argues that there are three particular problems with allowing juries to sentence child rapists to death: the deleterious impact of anger and empathy, the problem of generic prejudice, and the issue of race.

What Riegel Portends for FDA Preemption of State Law Products Liability Claims (Part II)

By Catherine M. Sharkey[*]

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[Editor's Note: This week, we are pleased to present Professor Sharkey's Essay on FDA preemption in light of Riegel v. Medtronic.  Part II appears today.]  

II.  Judicial Review

The Riegel majority had little to say about judicial review of agency actions or interpretations, given the primacy and determinacy of statutory text to the question at hand. But what little the Court did have to say may have resolved (at least in dicta) a simmering debate over the appropriate level of deference due to agency views on preemption:

In the case before us, the FDA has supported the position taken by our opinion with regard to the meaning of the statute. We have found it unnecessary to rely upon that agency view because we think the statute itself speaks clearly to the point at issue. If, however, we had found the statute ambiguous and had accorded the agency’s current position deference, the dissent is correct that—inasmuch as mere Skidmore deference would seemingly be at issue—the degree of deference might be reduced by the fact that the agency’s earlier position was different.[46]

Wrapped up in this quixotic counterfactual musing are two salient doctrinal points: first, that “mere Skidmore” deference—which is meted out according to the agency’s “power to persuade” the court, as opposed to unconditionally[47]—is the appropriate level of judicial deference; and second, that agency inconsistency is a salient factor, weighing against an agency’s new-found (and by hypothesis, turn-about) position. What is missing is a framework for the Court to undertake judicial review, probing the adequacy of the reasons given by the agency for taking a particular action, as well as for changing tack and taking a different course of action.