Florence was released after the state discovered its mistake.  He promptly sued under violations of the 4^th and 14^th Amendments.  The District Court granted Florence summary judgment, banning such strip searches of minor offenders as overly invasive.  This decision was reversed by the 3^rd circuit, and the case eventually made its way to Washington.  Six months after the Supreme Court listened to oral arguments, the conservative majority prevailed in an opinion by Justice Kennedy upholding suspicionless searches as Constitutional.  Chief Justice Roberts and Justice Alito, while joining the majority in full, each filed concurrences.  Justice Breyer led the dissenters.

Kennedy gave three reasons for justifying suspicionless searches of minor offenders: 1) detecting contagious diseases such as lice, 2) detecting tattoos indicative of gang membership, and 3) detecting drugs and weapons.  Kennedy argued that the prison officials had found “a reasonable balance between inmate privacy and the needs of the institutions.”  The idea is that police don’t know the character of the people they arrest; while some are harmless, some may in fact be quite dangerous to other prisoners.  On the other hand, it mattered to the Court that Florence was kept among the general prison population.  Kennedy was explicit that the decision did not cover the Constitutionality of suspicionless searches of detainees who could be kept apart from other prisoners.  The Roberts and Alito concurrences stressed this point.  The irony, of course, is that Florence was wrongly arrested in the first place—the outdated bench warrant for his arrest should never have remained open in the database.  This set of facts even led Florence to question whether he was targeted because he was black.  But the Court wasn’t focused on the mistaken arrest; it was only concerned with security procedures after the fact.

This was a narrowly divided issue, and not just in terms of the 5-4 vote.  The Court took an unusually long time to produce this decision.  Further, Roberts and Alito filed concurrences to underscore their hesitations with the ruling, stressing that the discretion afforded to law enforcement officials is not sweeping and does not cover situations where prisoners can be kept apart from the general prison population.

To be sure, being stripped naked and visually inspected by strangers is a violation of basic dignity and personal privacy, especially in the absence of any suspicion of risk.  Kennedy’s “balance” of privacy and security needs sure seems like more of a complete sacrifice of one for the other.  However, while Florence is a setback from the perspective of individual rights, it may not be all bad for future prisoners, for three reasons.  First, Kennedy’s opinion did not mandate any kind of search, but rather deferred to the discretion of prison officials to decide when one is necessary.  Second, searches involving physical contact with the detainee were not sanctioned.  Third, the majority was splintered, delivering a somewhat limited decision that fell short of a sweeping approval of strip searches in all situations.  Nonetheless, Florence is a controversial decision reflecting the post-9/11 era in which the interests of state security often supersede civil liberties.

In 1953, a local chapter of the Knights of Columbus sought and obtained a special use permit from the U.S. Forest Service to lease a 25-by-25 foot area of land in the Flathead National Forest in order to install a painted stone statue of Jesus Christ.  Some of the members of the Knights of Columbus had served in World War II in the Army’s 10th Mountain Division and had been inspired by the religious shrines they encountered in the mountains in northern Italy.  Since the statue was installed in 1955, the statue has become a local landmark.  Skiers frequently stop to take pictures in front of it, and often decorate it with leis, Mardi Gras beads, ski helmets, and Hawaiian shirts.

Last May, the Freedom From Religion Foundation, a national atheist organization, discovered that the lease permit was about to expire, and put pressure on the Forest Service not to renew it.  In August, the Forest Service announced that it would not renew the permit.  The Forest Service’s decision provoked enormous outcry.  Over the next month, Flathead National Forest officials received over 95,000 comments from people across the country about whether the statue should be removed, including a letter advocating for renewal of the permit with more than 70,000 names attached.  Local residents created a “Save Big Mountain Jesus Statue” Facebook page, which received over 3,800 visitors and 3,000 comments in the first week.  Supporters of the statue held an “Occupy Big Mountain” rally.  United States Representative Denny Rehberg, a Montana Republican, even got involved. Among other things, he proposed federal legislation brokering a land swap, whereby possession of the land upon which the statue stands would be given to the Whitefish Mountain Resort in exchange for an equal amount of land being given to the Forest Service, and scheduled a hearing to discuss the bill.

After learning that the statue was eligible for inclusion on the National Register of Historic Places and seeing the public’s overwhelming show of support for the statue, on January 31, 2012 the Forest Service reversed its initial decision and decided to grant renewal of the permit for another ten years.  Shortly thereafter, the Freedom From Religion Foundation filed suit in a federal district court in Montana, contending that the religious figure is an unconstitutional government endorsement of religion.

Public displays of religion are ubiquitous.  All U.S. currency contains the national motto, “In God We Trust.”  The Pledge of Allegiance contains the words “under God.”  Congress opens each session with a prayer, and the Supreme Court begins each day with the phrase “God save the United States and this Honorable Court.”  Displays of religious symbols on public property, such as holiday displays and displays of the Ten Commandments, have led to a myriad of lawsuits alleging Establishment Clause violations.  Last month, for instance, Utah agreed to remove eleven Roman crosses that the Utah Highway Patrol Association had placed along state highways to honor Utah troopers killed in the line of duty, after the 10th Circuit Court of Appeals ruled that the crosses represented a state endorsement of religion.

The United States Supreme Court has considered the permissibility of public displays of religious symbols in a variety of contexts.  It most recently addressed the issue on June 27, 2005, when it handed down two seemingly inconsistent opinions.  In McCreary County v. American Civil Liberties Union, the Court required the removal of a Ten Commandments display inside two Kentucky county courthouses.  In Van Orden v. Perry, the Court found no problem with a six-foot-high monument of the Ten Commandments on the Texas State Capitol grounds.  In each case, Justices Rehnquist, Scalia, Kennedy, and Thomas voted in favor of the displays, while Justices Stevens, O’Connor, Souter, and Ginsburg voted to strike them down.  Justice Breyer provided the swing vote.

The contrasting results reached in McCreary County and Van Orden have left much confusion as to the constitutionality of public displays of religious symbols.  However, in his concurrence, Justice Breyer distinguished the two cases on four factual grounds.  Because the facts of the Freedom From Religion Foundation’s lawsuit in Montana more closely resemble those from McCreary County than Van Orden, the district court should order the removal of the Jesus statue from Big Mountain.

First, the Ten Commandments displays in McCreary County and Van Orden appeared in very different contexts.  In McCreary County, the Ten Commandments were initially hung in the courthouses in isolation.  Only after the ACLU filed a lawsuit were the displays placed among other documents.  In contrast, the Ten Commandments in Van Orden were surrounded from the beginning by 17 monuments and 21 historical markers.  Like in McCreary County, the Jesus statue stands alone on Big Mountain.

Second, the displays in McCreary County and Van Orden had very different histories.  In McCreary County, at a ceremony to commemorate the installation of the Ten Commandments, a pastor “testified to the certainty of the existence of God.”  Less than a month after the ACLU filed a lawsuit, the courts, at the direction of the county legislatures, surrounded the Ten Commandments with eight other documents whose only commonality was that they all contained religious references.  Following a court order to remove the displays pending resolution of the controversy, the courthouses put up a third display, this time surrounding the Ten Commandments with historical documents of legal significance.  The Supreme Court held that the historical evolution of the exhibits demonstrated that their predominant purpose was to advance religion.  In Van Orden, the Ten Commandments and the surrounding memorials were placed on the grounds of the state capitol with the express purpose of commemorating the “people, ideals, and events that compose Texan identity.”  The initial permit application for the Big Mountain Jesus statue proposed to “erect a statue of Our Lord Jesus Christ.”  A newspaper article published shortly before the statue was installed refers to it as a “shrine.”  Consequently, the erection of the statue had a clear religious purpose.

Third, in McCreary County and Van Orden, the impetus for installing the Ten Commandments came from different sources.  In McCreary County, the displays were installed entirely at the behest of the county legislatures.  In Van Orden, the Fraternal Order of the Eagles donated the display in an effort to popularize the movie The Ten Commandments.  While the statue on Big Mountain was also put up by a private organization, the two organizations are very different.  Justice Breyer emphasized that that the Fraternal Order of the Eagles was “primarily secular.”  Membership in the Knights of Columbus, by contrast, is limited to practicing male Catholics who “accept the teaching authority of the Catholic Church on matters of faith and morals, aspire to live in accord with the precepts of the Catholic Church, and are in good standing in the Catholic Church.”

Finally, the Ten Commandments display had gone unchallenged for a much longer period of time in Van Orden than in McCreary County.  In McCreary County, the display had been up for less than six months when the ACLU challenged its constitutionality in court.  In Van Orden, forty years had passed before any legal objection to the display was raised.  In this respect, the Jesus statue more closely resembles Van Orden, since it went unchallenged for nearly sixty years.  However, an impermissible public display cannot become permissible merely by virtue of its age.  As Justice Stevens noted in his dissent, “I doubt that a slow walk to the courthouse, even one that took 40 years, is much evidentiary help in applying the Establishment Clause.

Consequently, under the test articulated by Justice Breyer, the federal district court should find that the Big Mountain Jesus Statue violates the Establishment Clause, despite its popularity.  As Justice Jackson famously declared, “fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

In July 2010, Jennifer Keeton, a former ASU student pursuing a masters degree in school counseling, sued the public university on First Amendment free speech and free exercise grounds, after it threatened to expel her unless she agreed to participate in a remediation plan designed to improve her ability to counsel members of the GLBTQ community.  Along with her complaint, she sought a preliminary injunction barring ASU officials from dismissing her from the program.  In August, the federal district court denied her motion for a preliminary injunction in Keeton v. Anderson-Wiley, a decision that was upheld by the Eleventh Circuit Court of Appeals last month.

On a number of occasions during her first year in the Counselor Education Program, Keeton, a self-described devout Christian, expressed her belief that homosexuality is immoral.  She also told classmates and professors that she would have difficulty working with GLBTQ clients, that she would tell GLBTQ clients that “it’s not okay to be gay,” and that if she were unable to change their sexual behavior herself, she would refer them to someone who practiced conversion therapy.  Before Keeton’s second year was set to begin, in which she was scheduled to engage in one-on-one counseling with middle and high school students, ASU officials determined that her comments indicated an intent to violate four separate provisions of the American Counseling Association’s Code of Ethics, which counseling education programs are required to teach in order to maintain their accreditation.  ASU gave her a choice: participate in a remediation plan, or be dismissed from the program.

Keeton’s remediation plan would have required her to, among other things, attend three diversity training sessions focused toward working with GLBTQ clients, read ten peer-reviewed articles pertaining to effective counseling of GLBTQ clients, increase her interaction with the GLBTQ population by, for example, attending Augusta’s Gay Pride Parade, and write monthly reflection papers summarizing what she had learned.  An addendum to the remediation plan emphasized that Keeton was not being asked to change her beliefs, but rather to separate her beliefs from her counseling.  Keeton refused to participate in the remediation plan, opting instead to file a lawsuit against the university in the U.S. District Court for the Southern District of Georgia.  After the district court denied her motion for a preliminary injunction, she was expelled from ASU.

On appeal to the Eleventh Circuit, Keaton’s lawyers predominantly raised two arguments for why her expulsion was unconstitutional, both unsuccessfully.  First, Keeton claimed that the requirement that she participate in a remediation plan violated her right to free exercise of religion.  In Cantwell v. Connecticut, the court divided the free exercise clause into the freedom to believe and the freedom to act, and held that “the first is absolute but, in the nature of things, the second cannot be.”  The court established the current test for determining whether restrictions on actions violate the Free Exercise Clause in Employment Division v. Smith.  So long as the law that creates the interference has a religiously-neutral intent and is generally applicable, it need only be rationally related to a legitimate government interest to be upheld.  In Keeton, the appellate court determined that ASU had a neutral and general practice of crafting remediation plans when students failed to comply with the Code of Ethics.  Since ASU’s policy was rationally related to its interest in maintaining its accreditation—a requirement of ASU’s accreditation is that it “address the inability of some students to achieve counseling competencies that might impede performance”—the court rejected Keeton’s Free Exercise claim.

Second, Keeton argued that the remediation plan placed unconstitutional restrictions on her freedom of speech.  While Keeton’s statements are offensive to many, myself included, they are nevertheless legally protected.  In R.A.V. v. City of St. Paul, in which the Supreme Court declared unconstitutional a law that made it illegal to burn a cross, the Court stated that “the First Amendment generally prevents government from proscribing speech or even expressive conduct because of disapproval of the ideas expressed.”  Unless the speech contains obscenities, defamatory statements, or “fighting words,” it is generally protected.  Though Keeton’s speech is legally protected, her right to speak is not absolute.  Because school classrooms constitute nonpublic forums, program officials may impose restrictions on speech, so long as they are viewpoint neutral and reasonable.  I believe that the Eleventh Circuit erred in determining that both criteria had been met.

The Eleventh Circuit determined that ASU’s decision to impose a remediation plan was viewpoint neutral, because it stemmed from Keeton’s expressed intent to violate the Code of Ethics, not from her religiously-based views on homosexuality.  I am unable to see how this makes ASU’s decision more neutral with respect to the views expressed in the speech.  Under ASU’s policy, students who express viewpoints inconsistent with the Code of Ethics will be made to undergo remediation, while students whose views are consistent with the Code of Ethics will not.

The Eleventh Circuit also found ASU’s policy to be reasonable, using the framework established in Hazelwood School District v. Kuhlmeier.  In Hazelwood, the court held that schools could regulate the content of students’ speech in “school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.”  Applying this test to Keeton, the appellate court found that ASU had a legitimate pedagogical concern in teaching its students to comply with the Code of Ethics.  What troubles me about this is not the outcome the court reached, but the omission of a crucial step.  The court determined that it was reasonable for schools to teach students to comply with the Code of Ethics, but it never asked whether the content contained within the Code of Ethics was reasonable.  Suppose that in the 19^th Century the Code of Ethics declared that women were psychologically inferior to men, or that in the 1950s it stated that African Americans were inferior to their Caucasian counterparts.  Would it still be reasonable for schools to teach compliance with the Code of Ethics?  As Judge Pryor noted in his concurring opinion, it was not long ago that the American Psychiatric Association maintained that homosexuality was a treatable mental disorder.  Would the court have come out the same way if Keeton had been forced to undergo remediation for clamoring that the then prevailing view was wrong?  Though a quick review of the modern day Code of Ethics reveals nothing unreasonable, this step is a crucial one, and one that the court failed to take.

Few can fault the judges in this case from wanting to protect school children from being indoctrinated by Keeton’s beliefs.  But as is often said, hard cases make bad law.  My argument is not that Keeton should be allowed to instill her beliefs in school children.  It is merely that forcing Keeton to choose between undergoing remediation and facing expulsion is not a legally permissible solution to the very real problem that ASU faced.  Instead, ASU might have been within its right to postpone Keeton’s scheduled counseling until further notice.  And if Keeton proved unable or unwilling to abide by the Code of Ethics, the American Counseling Association could have refused to certify her as a counselor.

Importantly, while the Eleventh Circuit rejected each of Keeton’s arguments, the decision was not a rejection of the merits of the claims themselves.  A court may only grant a preliminary injunction if the plaintiff demonstrates that she is substantially likely to win her case.  The district court and the appellate court decisions, which were rulings on Keeton’s request for a preliminary injunction, held that Keeton failed to meet this high burden.  While the opinions cast doubt on Keeton’s chances of winning her underlying suit, in the words of Yankee legend Yogi Berra, “it ain’t over till it’s over.”  When the case concludes, it will serve as an important precedent for the many professional associations that promulgate ethical codes.

Justices’ skepticism was two-pronged.  First, several justices questioned Guerriero’s assertion that existing rules of evidence were insufficient to screen for unreliable evidence.  “What is the difference between what you are asking for and what already exists in the law?” Justice Breyer asked.  Under Federal Rule of Evidence 403, Breyer noted, a judge may exclude evidence that she thinks is unduly prejudicial or misleading.  Justice Ginsburg pointed to other safeguards: “You can ask the judge to tell the jury: ‘Be careful; eyewitness testimony is often unreliable.’  You can point that out in cross-examination.”  The necessity for a new rule, these justices posited, was dubious.

Other justices criticized Guerriero’s proposed rule as excessively narrow.  “What is magic about suggestiveness as opposed to all of the other matters that could cause eyewitness identification to be wrong?” Justice Scalia pondered.  Guerriero’s rule would exclude a witness’s identification only when given under circumstances suggestive of a defendant’ guilt.  If the witness’s identification was unreliable for some other reason – because the witness was standing far away from the crime scene such that she could not see the culprit clearly – the evidence would be admissible.

Justice Scalia also questioned why Guerriero’s rule would apply only to eyewitness testimony given under suggestive circumstances.  “Let’s say . . . that the killer had left a message on the . . . phone and the police in some manner create suggestiveness that causes a witness to identify that as the voice of the killer.  You really think that we would say, well, this is not eyewitness testimony; eyewitness testimony creates a special risk?”  Guerriero suggested that his rule followed from Court precedent, in which the justices have said that eyewitness testimony is special.  “[W]e don’t mean it,” Scalia quipped.

In many ways, Guerriero’s argument proved too much.  If the Constitution requires the exclusion of unreliable evidence, the criminal justice system would be turned on its head.  A host of unreliable evidence is admitted at every trial, yet we as a society are comfortable with it, because we trust jurors’ ability to gauge the dependability of what is presented to them.  Once we begin questioning our faith in juries – even if that skepticism is merited – the foundation of the justice system begins to crumble.  The justices seem to be willing to preserve the myth of juror competence – at least in the near term – lest the system fall apart.

To read a transcript of the oral arguments, click here.  To read the parties’ briefs, click here.

In 2008, Joffre Ullon called police to report that his wife had seen a man breaking into cars outside their Nashua, New Hampshire apartment complex.  When police arrived at the scene, they discovered Barion Perry carrying two car stereo amplifiers across the complex’s parking lot.  Perry told police that he had found the amplifiers on the ground and was simply moving them out of the way.

While Perry was talking to police, Ullon and his wife were discussing what they had seen with another Nashua officer.  Ullon’s wife stated that the man she had seen breaking into the cars was “tall” and “African-American.” When pressed for details, Ullon’s wife looked out the window, pointed to Perry, and identified him as the culprit.  At the time of the identification, Perry was standing next to a Nashua police officer.

At trial, Perry moved to exclude the identification, claiming that the evidence’s admission would violate his due process rights.  Perry asserted that his proximity to police at the time of the identification colored the witness’s memory by suggesting that he was a person of interest in the police’s investigation.  The trial court disagreed.  Without ruling on whether the circumstances surrounding Perry’s ID were suggestive of guilt, the court asserted that Perry could not mount a due process claim because the suggestive circumstances were not “intentionally orchestrated by police.”  A defendant may challenge a witness’s ID only if its reliability is called into question by “improper state action.”  Here, the circumstances of which Perry complained were a matter of happenstance, meriting the identification’s admission.

The issue before the Supreme Court is whether eyewitness identifications must be excluded whenever the identification was made under circumstances that make the ID unreliable.  As it stands, exclusion is mandated only when police themselves are responsible for the suggestive circumstances.

The question turns in large part on the ill the exclusionary rule is designed to cure.  Perry argues that the Court should be concerned with reliability.  “It is the likelihood of misidentification which violates the defendant’s right to due process,” Perry declares.  In contrast, the State claims that the exclusion of unreliable eyewitness testimony is merited only to the extent that it deters police misconduct.  Arguing on behalf of New Hampshire, the United States asserts, “Police involvement is a necessary prerequisite for a due process analysis into the reliability of an identification.”  Only after a court has determined that police misconduct created circumstances “unnecessarily suggestive” of a defendant’s guilt need the court engage in an inquiry into the reliability of the resulting identification.

New Hampshire’s rule is the easier one to administer.  Assessing the reliability of an ID is a tricky task.  Indeed, Perry does not propose a standard for answering “how suggestive is too suggestive?”  By saving the reliability inquiry until after a court has assessed police misconduct, judges can screen out many complicated due process claims.

Adopting such a rule, however, leaves the Court in an awkward position.  In 1967, the Court conceded: “The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.”  Modern psychology has only confirmed the Court’s intuition.  Study after study has substantiated the inaccuracy of eyewitness testimony, such that tighter rules must be enacted before it can be admitted at criminal trials.  Perry presents an opportunity for relatively modest reformation: when a defendant can point to concrete facts undermining the reliability of an ID, the prosecution must turn to alternative evidence in order to prove its case.  At least in this narrow class of cases, administrability must give way to accuracy.

At oral arguments, Thomas Goldstein, a lawyer for the petitioner, struggled to articulate precisely the procedure he was asserting to be unconstitutional.  To some justices’ surprise, Goldstein conceded that if prison guards observed inmates disrobe from across the room, their actions would not violate the Constitution.  Rather, the constitutionality of a search hinged on the proximity between the guard and the inmate during a nude inspection.  “Are you suggesting,” Justice Sonia Sotomayor interjected, “[i]t’s okay to stand five feet away, but not two?”  Goldstein would not answer “how close is too close”; however, he affirmed that the constitutional violation in the case arose from the guards’ close proximity to the petitioner while searching him.

Several of the justices seemed surprised by other concessions Goldstein made during oral arguments.  For instance, Goldstein suggested that a policy whereby close-range strip searches were performed by medical professionals would be constitutional.  “If you’re examined close up by someone who has a medical degree, it’s okay?” Justice Antonin Scalia questioned.  “And on the other hand, if it’s someone who does not have a medical degree, it’s not okay?”  Goldstein answered affirmatively.  Justice Scalia stated that he failed to see Goldstein’s distinction.

Carter Phillips, counsel for the prisons, also received some pointed questions from the bench.  A number of justices expressed their skepticism that the prisons had an interest in subjecting all inmates – even those charged with only minor offenses – to close-range strip searches.  Justice Stephen Breyer referred Phillips to studies showing no increase in contraband discovered when prison officials moved from a policy whereby guards strip searched all inmates upon entering the facility to one in which guards were required to have “reasonable suspicion” before a search.  “I understand contraband is serious,” Justice Sotomayor explained.  “But most of the studies point to it not being on intake, but coming in through guards, coming in through contact visits.  The great cause today is that from corrupt correction officials.”  Phillips countered, asking the Court to rely on its “common sense,” not scientific studies.

To listen to the entirety of the oral arguments in Florence, click here.  To read the petitioner and respondents’ briefs, click here.

As of last year, Tennessee law requires voters to present a valid, government-issued ID before casting a vote in state and federal elections.  To comply with the mandate, Cooper – who has voted in every election for which she’s been eligible, save one – went to a state Driver Service Center to get her free ID.  To confirm her identity, Ms. Cooper brought with her a rent receipt, a copy of her lease, her voter registration card, and her birth certificate.  This documentation was deemed insufficient, however, and her request for an ID card was denied.  A clerk at the Service Center told Ms. Cooper that he could not process her request as the birth certificate she presented listed her maiden – not her married – name.  If Ms. Cooper wanted to vote, she had to return to the Center with her marriage certificate.

Ms. Cooper’s experience at the Service Center has renewed the debate over Tennessee’s controversial ID requirement.  In an interview with the Chattanooga Free Times Press, State Representative Tommie Brown denounced the Republican-backed measure as a means to “suppress the vote” among the elderly, the poor, and racial minorities (Ms. Cooper happens to be black).

State officials have already begun back-pedaling.  In an interview with the Nashville Scene, Jennifer Donnals, a spokesperson for the Tennessee Safety Department, explained that Ms. Cooper’s situation should have been handled differently.

[T]he clerk was following policy for issuing photo IDs, but we think that the clerk could have taken some extra steps to help this woman in this situation.  But that is the policy.  If someone comes in with the birth certificate that does not have their correct last name, then there needs to be some supporting document to prove that’s her last name.

Asked what documents Ms. Cooper needed to bring when she returned to the Service Center, Donnals answered, “Every situation is different.”

The Safety Department’s response to Ms. Cooper’s experience is troubling for a number of reasons.  First, it is not entirely clear that state officials know what documents voters need to present before receiving a state-issued ID.  The Service Center clerk apparently though that Ms. Cooper needed present a marriage license, but Donnals suggests that other documentation would have sufficed.  Second, the Tennessee ID requirement makes it appreciably harder for women to vote in the state than men.  Women who give up their maiden names must present additional documentation to receive their mandated ID cards, yet men can escape the time, effort, and travel necessary to fulfill this requirement.

Finally, the Safety Department’s proposed solution to Ms. Cooper’s situation is wholly unsatisfying.  Essentially, Donnals proposes that processing clerks simply “try as hard as they can” to get voters their ID cards, exercising good judgment in a given situation.  Malleable licensing procedures have been repeatedly decried by the Supreme Court, at least in the First Amendment context.  In Forsyth County v. Nationalist Movement, the Court overturned a state licensing system affording municipal workers considerable discretion in deciding to issue parade permits.  Unchecked discretion, the Court feared, could lead to content discrimination.  The government could grant permits to groups promoting speech that it liked, while denying licenses to groups espousing disfavored opinions.

The Tennessee law allows for content discrimination of a different sort.  A clerk may “give it her all” to secure an ID card for an applicant whose demographics suggest that she will vote for the clerk’s preferred candidate, yet adhere to the strictures of the law’s requirements when the applicant’s politics seem less amenable.  If discretion is disallowed in the context of free speech, it should also be eschewed in the context of voting.  Tennessee cannot solve its problems regarding the ID law simply by asking state workers to be more cooperative.  Greater, institutional changes are necessary to protect certain classes of voters from disenfranchisement.

Though Cooper’s behavior was by all accounts egregious, his attorney’s conduct was pretty bad as well.  Before trial, the prosecution offered Cooper a favorable plea deal, recommending a term of years well below that which Cooper would have likely received if convicted at trial.  Cooper’s attorney advised him, however, to turn the deal down because, in his opinion, Cooper could not be convicted of the charged offenses, having shot his victim below the waist.  If that argument seems silly, it’s because it is.  The advice Cooper received was patently false, and as an appellate court later declared, “objectively unreasonable.”  Eschewing the plea deal, Cooper was convicted of assault and sentenced to a term of years greater than the minimum sentence he would have received under the proffered plea.  Cooper appealed, alleging ineffective assistance of counsel.  The Sixth Circuit overturned Cooper’s conviction and ordered the State to either re-offer the plea deal or release Cooper from prison.

Cooper’s case begs the following question: when a criminal defendant turns down a plea deal based on his attorney’s ignorance of the law and subsequently receives a harsher sentence after trial, can he seek to overturn his sentence, alleging ineffective assistance of counsel?

Perhaps not.  To make out a claim for ineffective assistance of counsel, a defendant must show that he was deprived of a “substantial or procedural right to which the law entitles him.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).  It is not clear what right Cooper was deprived of.  Cooper had no constitutional right to a plea bargain.  Indeed, even if such a bargain were reached, there was no guarantee that a judge would have accepted it.  In the plea-deal context, the prosecution merely recommends a sentence to the judge, who remains free to impose a harsher sentence if she so chooses.  It is a distinct possibility that Cooper could have accepted the deal only to have the judge impose the very same sentence he is now contesting.

The approach described above, however, may be overly formalistic.  Cooper points out that ineffective counsel can negate a guilty plea, as the Supreme Court ruled in Padilla v. Kentucky, 130 S. Ct. 1473 (2010).  Why then shouldn’t ineffective counsel negate a not-guilty plea?  The State would point to the fact that by pleading guilty, a defendant gives up his constitutional right to a trial.  By pleading not guilty, however, a defendant gives up nothing.  Rather, by pleading not guilty, a defendant is asserting his constitutional right to a trial.  But is that distinction satisfying?  Both Padilla and Cooper received bad advice.  Both Padilla and Cooper would have altered their decision had they been provided with competent advice.  Yet only Padilla gets a do-over?  The result may follow from existing precedent, but a tinge of unfairness remains.  The Supreme Court has the chance to rectify that unfairness by structuring a new rubric for ineffective counsel claims in the coming months.  Many are hoping that they do.

In late 2006, Bradley Johnson, a San Diego County math teacher and sponsor of the school’s Christian club, received complaints regarding two large banners displaying phrases including: “IN GOD WE TRUST,” “ONE NATION UNDER GOD,” “GOD BLESS AMERICA,” “GOD SHED HIS GRACE ON THEE,” and “All men are created equal, they are endowed by their CREATOR.”  The school’s principal ordered Johnson to remove the signs – a demand Johnson believed infringed upon his free speech rights.

The Ninth Circuit disagreed.  The ruling has drawn attention because the objectionable posters all contained quotes taken from the national motto, the National Anthem, and the Declaration of Independence.  From a legal standpoint, however, the ruling is largely uncontroversial.

Why didn’t the school district’s action violate Johnson’s free speech rights?

Johnson is a government employee and, as such, faces restrictions regarding what he can say in the classroom.  As the Ninth Circuit noted, “Just as the Constitution would not protect Johnson were he to decide that he no longer wished to teach math at all, preferring to discuss Shakespeare rather than Newton, it does not permit him to speak as freely at work in his role as a teacher about his views on God, our Nation’s history, or God’s role in our Nation’s history as he might on a sidewalk, in a park, at his dinner table, or in countless other locations.”

As a public school teacher, Johnson serves as the government’s mouthpiece: he is the Government’s voice in the classroom.  Accordingly, the Government gets a say in what Johnson gets to say – at least within the scope of his employment.  The fact that Johnson may have had some freedom to choose what he displayed in his classroom did not change the reality that the Government – not Johnson – was responsible for the speech that appeared on his classroom’s walls.

Did the school district violate the Establishment Clause by ordering Johnson to take down his posters?

The Establishment Clause requires “government neutrality” with respect to religion.  Stated simply, the Government may not “place its prestige, coercive authority, or resources behind a single religious faith or behind religious belief in general.”  Nor may it “be overtly hostile to religion.”  Johnson argued that the school district’s directive to remove his posters evinced hostility toward religion and was thus unconstitutional.

The Ninth Circuit disagreed.  Legal precedent holds that governmental actions taken to avoid potential Establishment Clause violations do not represent hostility toward religion.  Since a reasonable observer might have construed Johnson’s posters – with their repeated references to God and use of disproportionately large font to spell out words like “CREATOR” – as religious endorsements, the school district’s actions were not unconstitutional.

What about other purportedly religious displays in the school?

On appeal, Johnson argued that other teachers at his school decorated their classrooms with other forms of religious iconography, including Tibetan prayer flags and a Malcolm X poster.  By ordering him to remove his posters but not the other religious symbols present at the school, officials were sending a message of hostility toward Christianity.

Again, the Ninth Circuit disagreed.  The fact that these other displays may have had some religious content does not mean that they ran afoul of the First Amendment.  Rather, “[e]ach [display] would be violative [of the Constitution] only if used to endorse or inhibit religion.”  Because depictions of Malcolm X and Tibetan prayer flags do not send the same kind of overtly religious message as the word “God” written repeatedly in all caps across a poster, their presence in the school was unobjectionable.

From SCOTUSblog:  “The key to the Court majority’s opinion, written by Justice Anthony M. Kennedy, is that there is a clear-cut distinction between taxpayer lawsuits that challenge direct government spending to aid religion (still allowed, apparently, but perhaps only in the narrowest way), and lawsuits that challenge the use of a tax credit as an indirect way of channeling government tax revenues into parochial education (possibly, no longer allowed).”

Justices Ginsburg, Breyer, and Sotomayor joined Justice Kagan in her dissent.

Read the full SCOTUSblog post.