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Last week’s arguments in Plain English

If you are a Court watcher, or even if you aren’t, this was a terrific week at the Court:  who can resist a week of arguments about real issues that matter to real people?  Video-game violence . . . tax credits for donations to religious schools . . .  prisoners’ rights to sue for deprivation of their religious freedoms.  Yes, this week of arguments had something for everyone.

Not surprisingly, my Plain English inbox was filled this week with questions about   Schwarzenegger v. EMA, the violent video-game case out of California and the Ninth Circuit.  At issue was a California law banning the sale of such games to minors.  The video-game industry argued that, unlike similar laws banning the sale of pornography to minors, the state’s ban on video-game sales and rentals violates the First Amendment.  In the oral argument, the Justices considered kids’ exposure to violence in many contexts – including fairy tales, movies, and comic books  – and questioned whether there was a societal consensus (as there is with sexually explicit materials) that violence is inappropriate for kids.  Some Justices wondered whether parents, rather than the state, should make that decision.

But it was a judicial philosophy – “originalism” – that caught the attention of many constitutional gurus during this oral argument.  As has been widely reported, Justice Scalia emphasized that although it was “always understood” that freedom of speech did not include obscenity, “[i]t has never been understood that the freedom of speech did not include portrayals of violence.”  That led Justice Alito – in a remark that he may not have intended to be funny, but which brought the house down – to explain to the lawyer arguing for the state:  “what Justice Scalia wants to know is what James Madison thought about video games . . . did he enjoy them?”  Justice Scalia shot back:  “No, I want to know what James Madison thought about violence.”

So what is this “originalism” idea all about?  Well, it is one of the foundational concepts in constitutional interpretation, and one about which the Justices and constitutional scholars are deeply divided.  One group of Justices and scholars – of which Justice Scalia is the figurehead – believes that, to figure out what the Constitution means, we should look to “original intent,” or what the people who wrote the Constitution (the “Framers”) were thinking when they wrote it back in the late eighteenth century.  Another group believes that the Constitution is a living, breathing document that was not intended to have a fixed meaning, but was expected to adapt its application to an evolving society.

Turning back to the video-game case, can the Court really rely on original intent to determine whether the First Amendment protects twenty-first-century technology like Mortal Kombat games?  We will find out which view prevails sometime later this Term when Chief Justice Roberts announces that the Court has opinions in Schwarzenegger v. EMA.

Although the Court often considers questions that may seem somewhat dry and removed from the real world, Schwarzenegger v. EMA is a perfect example of a case that could affect many households with kids under eighteen.  Similarly, Williamson v. Mazda Motor of America, Inc. could matter to many Americans who have passengers riding in the back seat of a car.  In Williamson, the Court will review whether the requirements of a federal agency, the National Highway Traffic Safety Administration (NHTSA), override (or “preempt”) state laws that allow people to bring claims that seatbelts are defective.  Specifically, do all seat belts have to have shoulder harnesses, or is a lap belt enough?  At the time, NHTSA had decided not to require shoulder harnesses in all rear seats (although that rule has since changed).  The case arises from an accident in which a passenger in the middle rear set was wearing only a lap belt, not a shoulder harness, and died from her injuries.

In a case ten years ago involving air bags, the Court held that federal regulations precluded plaintiffs from bringing a suit under state law alleging that a Honda was defective because it didn’t have a driver’s-side airbag.  But, as Greg Stohr of Bloomberg explained here, the current Court seems evenly divided in Williamson.  Therefore, this may be a case in which Justice Kagan’s recusal (because she filed a brief in the case as the Solicitor General) will actually split the Court down the middle – which would result in the lower court’s decision in favor of Mazda being affirmed.

And employees will certainly be interested in Staub v. Proctor Hospital, in which the Court considers when an employer can legally fire an employee.  (Akin Gump represented the petitioner in the case, but the author of this post was not involved in the case.)  As Lyle explained here, Staub involves  the “cat’s paw” theory, which Lyle had described so beautifully:  “The theory at issue in his case goes by an informal label with origins in the 17th Century and a French poet, Jean de la Fontaine.  He wrote a  fable titled “The Money and the Cat.”  It was a story about a monkey who persuaded an unsuspecting cat to snatch chestnuts out of a fire.  The cat did as asked, but burned her paw, while the monkey gained from her effort: he ate the chestnuts without getting burned himself.  The cat, in short, was duped by the monkey’s devious purpose, and thus became his agent.”

We know already that, if the cat – the person doing the actual firing – is biased against an employee, terminating the employee would be illegal under federal law.  But what if the cat is not biased, but is persuaded by the monkey – another person within the organization – to fire the employee?  Should the employer be held liable?  Although this case involves bias against those with military service obligations, it could also affect victims of other kinds of discrimination – for example, racial, religious, or age discrimination.   The petitioner in the case, Vincent Staub, wants the Court to hold employers responsible for decision-making by their officials, even if the biased official is not the ultimate decision-maker.  The hospital instead would like the Court to interpret the laws prohibiting discrimination as applying only to the final decision-maker.

Next up?  Another First Amendment challenge, this one ostensibly about the establishment of religion.  In Arizona Christian School Tuition Organization v. Winn, a group of taxpayers brought suit challenging an Arizona policy that allows those who donate money to school tuition organizations – which, according to the taxpayers, mostly sponsor scholarships to religious schools – to receive tax credits for their donations.  So why do I say that the case is “ostensibly” about the establishment of religion?  Because before the Justices can reach the question whether the program violates the Constitution, they will have to decide a separate issue:  whether the taxpayers have “standing” to sue.  “Standing” is the right that a plaintiff has to bring her claim in federal court; to demonstrate standing, she must show that she has personally and directly been harmed.  As a general rule, taxpayers usually have not suffered the kind of personal harm that can satisfy the standing standard – except in cases involving the use of tax money to support religious purposes.  The Acting Solicitor General’s position?  The cases establishing that standing rule over the last forty years went too far.  The other side’s?  Don’t mess with precedent.

If the Justices do decide that the taxpayers have standing to sue, then they will also look at the substantive question:  are these tax credits an establishment of religion?  Or is the school tuition organization program religiously neutral?  Like in the video-games case, the answer remains to be seen  . . . sometime later this Term.

The Court considered religion in another case this week:  Sossamon v. Texas, in which an inmate in a Texas state prison alleged that various prison policies  violated his right to freely exercise his religion.  (Disclaimer:  Howe & Russell and Akin Gump represented the petitioner in this case, but the author of this post had no involvement in the case.)   Precisely because prisons were not always honoring prisoners’ religious practices,  in 2000 Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA).    The law tied states’ receipt of federal funds to respect for prisoners’ religious freedoms.  Congress also provided that prisoners could sue states, state officials, localities, and local officials if their religious rights were violated.

But Congress was not clear about what the prisoners could sue for.  Sossamon sued because, under prison policies, he was not allowed to attend worship services or use the prison chapel.  And he sued for money damages – money to compensate him for the harm that he had suffered (“compensatory damages”) as well as money to punish the prison officials who denied him his rights (“punitive damages”).  The problem?  Although the statute might create a right to sue state officials for money damages, it did not exempt states from the sovereign immunity (or freedom from suit) they enjoy under the Eleventh Amendment.  And an even more technical question?  Could officials be sued in their official capacity as state employees, in their private capacity as individuals, both, or neither?  Lastly, could Congress, under its Spending Clause power (the power to spend and appropriate federal funds as it sees fit) require state officials to submit to damages claims?All interesting questions – and ones that will engender a lot of water cooler conversations before we hear the Supreme Court’s decisions on the issues.

Recommended Citation: Lisa Tucker, Last week’s arguments in Plain English, SCOTUSblog (Nov. 7, 2010, 10:32 PM),