(The Return of) Ignatz, by Sam Heldman

Friday, April 25, 2003

the end of the S.Ct. predictions, at last
Thank goodness there are only 6 more Supreme Court cases this Term; I have tired of this prediction contest that I created. But at least I persevered through it, which is more than I can say for myself about some things. Here, in one mad burst, are predictions for the final six cases. (Please keep reading after the first two, below; it gets somewhat more interesting after those).

First case next week is Black & Decker Disability Plan v. Nord. What could be more exciting than a case about the nuances of the "abuse of discretion" standard for review of the denial of a disability claim under an ERISA plan in which the eligibility-decisionmaker is also the plan funder and thus has a conflict of interest? The Ninth Circuit, in a roundabout way, arrived at the conclusion, more or less kinda sorta (pdf), that when you're dealing with a plan that has that sort of a conflict of interest, there's a presumption that the plan has to award benefits if the claimant's own treating physician says that the claimant is disabled – even if some other doc or docs disagree. I don't really think that the case presents any nice clear well-defined issue of law, so cert probably shouldn't have been granted – but having granted, the Court will (I predict) REVERSE. Bottom line: If I'm predicting correctly, then it will be somewhat easier for employers to deny you the health insurance, disability insurance, etc., benefits to which you think you're entitled.

Second case for Monday is Entergy Lousiana v. Louisiana Pub. Serv. Comm'n, some horribly arcane thing about the extent of state jurisdiction over power rates, under some complex federal statutory scheme. The U.S., as amicus, says "REVERSE" and so I do too.

First case for Tuesday is Georgia v. Ashcroft, which presents the question "Hey, has litigation under Section 5 of the Voting Rights Act become just a tool of partisan struggle between the two major parties, or what?" As you may know, under Section 5 of the Voting Rights Act of 1965, a "covered jurisdiction" – which includes various places with a history of voting-rights discrimination, including much if not all of the Deep South – is prohibited from making any change to voting practices and procedures unless it gets a certification from the U.S. Attorney General or from the U.S. District Court for the District of Columbia that the change has neither the purpose nor effect of "retrogression" – i.e., that it won't make minority voters worse off than they were under the prior scheme. This applies to redistricting as well as to other sorts of voting changes. So, whenever there is redistricting, you get partisan battles in the legislature to see which party can gain some advantage – and then you get partisan battles over Section 5 litigation or administrative clearance as well. Sometimes – as in this case – this leads to odd bedfellowship. The Georgia Attorney General, a Democrat, is making some pretty far-reaching attacks on Section 5. The Georgia Governor, a Republican, wants the AG to drop the attack. U.S. AG Ashcroft is enforcing the Voting Rights Act; he is allied with the ACLU, the NAACP LDF, and other liberal groups, and with Black intervenors who are represented by a prominent Republican lawyer. Get the picture? The U.S. Dist. Ct. for DC struck down Georga's legislative redistricting plan, holding that it was retrogressive. Republicans like that, because that plan was bad for Republicans. Democrats don't like that, because that plan was good for Democrats. So Republicans hug the Voting Rights Act, even though (for instance) Ala. AG Bill Pryor has called it an affront to federalism; and Democrats question the constitutionality of the law as it was interpreted by the District Court. Alice in Wonderland? No, just politics. Anyway, as nearly as I can tell, the Supreme Court will AFFIRM. Why? Go ask Ed Still and Rick Hasen if you want real exegesis; I just think it comes down to deference to the District Court's factual findings, and adherence to precedent. There's ultimately less to this case than the Georgia A.G. likes to pretend, I think; perhaps this is because, in this multi-sided Voting Rights Act suits, my sympathies tend to lie with the minority voters who favor the Democratic Party, rather than with the Democratic Party apparatus itself much less the Republican Party apparatus. But if you want links to pdfs of all major rulings and all major filings by the parties, go to this site courtesy of your friends in the Georgia Republican party.

Second case for Tuesday is Fitzgerald v. Racing Ass'n of Central Iowa. Does the Equal Protection clause prohibit Iowa from taxing slot machines at dog tracks at higher rates than it taxes gambling on riverboats? The Iowa Supreme Court said "yes, that's an equal protection violation" but the U.S. Supreme Court will REVERSE rather easily because the Court won't want to get involved in the minutiae of state tax policies. If you are even more cynical than I am, and think that the Iowa Court's rather-clearly-wrong decision was merely a result-oriented gift to the racetrack industry, consider this: if the Iowa Court had wanted to give a gift to the racetrack industry they would have written this decision in such a way that it would not be subject to review by the U.S. Supreme Court (by basing the decision on the State Constitution rather than the federal one). But they didn't, and that indicates to me that they were doing their best to decide the case correctly rather than reaching for a particular result. Good for them, even though they'll get reversed.

The first case for Wednesday is Virginia v. Hicks. Hicks was convicted of trespass in Virginia state court, for walking on a sidewalk alongside a street within a public housing project in Richmond. The housing authority had adopted a rule that barred people from being within the boundaries of the project if they didn't live there and had no "legitimate" purpose for being there – and if you were told to leave once, and came back on a later occasion after having once been barred, you would be arrested for trespass. So Hicks was convicted, but the Supreme Court of Virginia held that this conviction was unconstitutional because the restrictions on who could be within the boundaries of the project violated the First and Fourteenth Amendments. Mostly, the Court's reasoning was that the rule was "overbroad" and could allow the prohibition of constitutionally-protected free speech (e.g., passing out leaflets, and so forth). In the U.S. Supreme Court, Virginia makes two arguments: its first argument is about the scope of the "overbreadth" doctrine (a confusing area of constitutional law that sometimes allows people to challenge laws on the grounds that they might, in other circumstances, result in the trampling of First Amendment rights) and its second argument amounting to an assertion that the State has a lot more leeway under the First Amendment when it's acting as a landlord than when it's acting as a regulator of the public. All I've got is a hunch here, but my hunch is that the Court will REVERSE, probably on the basis of the "overbreadth" issue – that is, that the Court will say that the policy may or may not be unconstitutional as applied to expressive conduct, but that Hicks can't make that argument because he wasn't involved in any expression.

I am eagerly awaiting the outcome of the Term's last argued case: we will finally find out whether there is any federal statute that gives rise to "complete preemption" removability aside from § 301 of the LMRA and § 502 of ERISA. You may think I'm joking about being excited, but I'm not. The case is Beneficial Nat'l Bank v. Anderson. There is a relatively obscure federal statute, 12 U.S.C. § 86, prohibiting usury by national banks. Apparently that statute, when it is applicable, preempts (i.e., displaces) any state law claims that might otherwise apply. The question here is whether, when a plaintiff brings a state law claim for usury against a national bank, the bank can say "Hey, whether you know it or not, and whether you want it to be or not, that’s really a federal law claim, and so we're removing this case to federal court." The Eleventh Circuit said "no, the bank can't do that." As the Eleventh Circuit recognized, "complete preemption" of the sort that gives rise to removability is a very rare bird. Thus far the Supreme Court has only recognized it as to the two statutes above. And it exists only when there is really reason to believe NOT ONLY that the Congress wanted to preempt state law, BUT MOREOVER that Congress wanted to allow removability (as contrasted with the ordinary rule, which is that preemption does not usually give rise to removability). I think that the Eleventh Circuit got it right, and that the Supreme Court will AFFIRM, notwithstanding the invitation by the Solicitor General (here) to substantially expand the doctrine of complete preemption removal. (The SG essentially says that ANY federal statute that provides a cause of action and preempts the field ought to give rise to complete preemption removal; but that would be a drastic change, and should be up to the Congress rather than to the Court).

That's it. All done.

posted by sam 7:27 AM 0 comments


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