Recap by Corinna Lain, University of Richmond School of Law
SEALS Workshop on Constitutional Law—Supreme Court Update: Individual Rights
This morning, 4 great constitutional law scholars gathered to talk about the biggest cases from this Supreme Court this year in the area of individual rights.
Lori Ringhand (University of Georgia School of Law) kicked off the panel with a discussion of the Supreme Court’s two gerrymandering decisions this term: Bethune-Hill v. Virginia State Board of Elections and Cooper v. Harris. Bethune-Hill held that although the shape of an electoral district—its misshapen shape, more accurately—is one factor triggering strict scrutiny in racial gerrymandering cases, it is just one of several factors in a larger holistic analysis. Nothing new there, Ringhand explained, the case was more of a clarification than anything else. She thought the more important of the cases was Cooper v. Harris, which entailed challenges to two gerrymandered districts in North Carolina. One of those challenges was also best construed as a clarification, but the other—the challenge to district 12—considered gerrymandering that was both race-based and partisan. Race-based gerrymandering gets strict scrutiny, while partisan gerrymandering has gotten next to none (though that may change next Term, when the Court is scheduled to hear a case that raises the partisan gerrymandering issue). So what happens when a state uses race (which closely affiliates with party) to get a partisan result? You get reversed, that’s what happens. As Ringhand put the point, nothing could make Justice Thomas more mad than gerrymandering based on the stereotype that most blacks are Democrats.
John Taylor (West Virginia University College of Law) followed with a discussion of Trinity Lutheran Church v. Comer. At issue in Trinity Lutheran was Missouri’s express policy of denying public grants (which were awarded on a competitive basis) to churches, presumably so the state didn’t get sued for violating the separation of church and state. But the state got sued anyway—for violating the free exercise clause. The case might seem like common sense, Taylor explained, but it was a big case doctrinally. Over the last 30 years, the Court has moved from a position of “usually you can’t” (fund religious organizations) to “usually you may” to “usually you must”—at least if the reason you weren’t going to is based on religion. Taylor surmised that the Supreme Court, which in Zelman in 2002 took the controversial step of saying vouchers for parochial schools don’t violate the establishment clause, is well on its way to taking another big step and saying that vouchers for parochial schools are required by free exercise.
Larissa Lidsky (University of Missouri School of Law’s new dean) followed with a fascinating discussion of Packingham v. North Carolina—the social media case that has everyone talking. This is the case where a registered sex offender posted “God is good” on facebook after getting a speeding ticket dismissed, which was a problem because under North Carolina law, registered sex offenders aren’t allowed to go on social media. This, she noted, is a problem for some 20,000 registered sex offenders in North Carolina alone (a reflection of how broad the definition of sex offender is more than anything else). As Lidsky explained, this was the case where Justice Kennedy discovered the joy of social media—a veritable town square of current events, opportunities for expression, and even job postings. While Kennedy sang the praises of social media, Justices Thomas, Roberts and Alito chastised the Court, in a concurrence, for its “undisciplined dicta” and discussed the dangers that social media posed for children, especially by registered sex offenders. Lidsky expects the debate to continue on the Court, over time, between the bright side, and dark side, of social media.
David Gruning (Loyola University New Orleans College of Law) closed the panel with a discussion of one of the Supreme Court’s two Bivens cases this past term: Ziglar v. Abbasi. Ziglar involved a challenge to the treatment of Middle Eastern men who were detained for immigration violations in the wake of the 9/11 attacks—specifically, a policy to leave the lights on around the clock and also the body slams by guards that the prisoners endured. The Court threw out most all the claims, Gruning explained, which reflected a very limited view of what is allowed to go forward under Bivens, and the ultimate viability of a Bivens claim.