Yesterday I discussed the second Supreme Court oral argument I attended in a recent trip to the Supreme Court. Today I describe the basic controversy in the first oral argument I attended, in a case potentially implicating the First Amendment. First Amendment law is complicated, so this is the first of several posts on the case.
Texas specialty license plates
State license plates, affixed to vehicles to permit legal use on public roads, typically come in one or very few standard designs. But in many states you can purchase a specialty plate with special imagery, designs, coloring, &c. (Specialty plates are distinct from “vanity” plates. A vanity plate has custom letters and numbers, e.g. a vegetarian might request LUVTOFU.) Some state legislatures direct that specialty designs delivering particular messages be offered. And some state legislatures enact laws that permit organizations or individuals to design specialty plates.
The state of Texas sells both legislatively-requested designs and designs ordered by organizations or individuals. (The latter kind require an $8000 bond, covering ramp-up costs until a thousand plates are sold.) The DMVB evaluates designs for compliance with legislated criteria: for example, reflectivity and legibility concerns. One criterion allows (but does not require) Texas to reject “offensive” plates.
The department may refuse to create a new specialty license plate if the design might be offensive to any member of the public.
Texas rejected one particular design for just this reason. As they say, a picture is worth a thousand words:
The Texas Sons of Confederate Veterans’s proposed specialty plate…incorporating a Confederate flag. (Yes, Texas — including Rick Perry and Greg Abbott both — rejected this design.) (source)
For those unfamiliar with American imagery: the central feature of the Texas SCV insignia is the Confederate flag. Evoking many things, but in some minds chiefly representative of revanchist desire to resurrect Southern racism, Jim Crow, and the rest of that sordid time. Such minds naturally find the Confederate flag offensive.
Is the SCV actually racist? (Assuming you don’t construe mere use of the flag as prima facie evidence.) A spokesman denies the claim. Web searches find some who disagree and others who believe it is (or was) of divided view. I find no explicit denunciation of racism on the SCV’s website, but I searched only very briefly. Form your own conclusions.
Yesterday I began a series of posts discussing the Supreme Court cases I saw in my latest visit for oral arguments. Today I discuss San Francisco v. Sheehan
San Francisco v. Sheehan concerned a messy use of force by police in San Francisco in responding to a violent, mentally-ill person making threats with a knife — an unhappy situation for all. Very imprecisely, the question is whether the officers used excessive force to subdue an armed and violent, disabled suspect, knowing that suspect might require special treatment under the Americans with Disabilities Act or the Fourth Amendment while being arrested. (Of course, whatever baseline those laws require, police often should and will be held to a higher standard.)
Chief Justice William Rehnquist, one of the other objects of the trip
The obvious prediction
Mildly-interested readers need know but two things to predict this case’s outcome. First, this case arose in the Ninth Circus Circuit: a court regularly with very outlier views. And not solely along the tired left-right axis: when the Court often summarily reverses the Ninth Circuit without even hearing argument, partisanship can play no role. Second, Sheehan must overcome qualified immunity, which for better and worse protects “all but the plainly incompetent” police against lawsuit. These facts typically guarantee San Francisco will win and Sheehan will lose.
That aside, one observation struck me. Stereotyping heavily, it’s surprising that San Francisco in particular would argue, to use overly-reductive descriptions, “for” police and “against” the disabled. Usually we’d assume San Francisco would stand by, not against, underprivileged minorities.
“Bait and switch”
That expectation makes this letter from advocacy groups requesting San Francisco abandon its appeal very interesting. At oral argument Justice Scalia interrupted San Francisco’s argument before it even started to bluntly charge the city with changing its argument, between its request for the Supreme Court to hear the case and when San Francisco presented its argument for why it should win — even calling it a “bait and switch”. Minutes later, Justice Sotomayor echoed his views (in more restrained terms).
When requesting Supreme Court review, San Francisco argued that the ADA “does not require accommodations for armed and violent suspects who are disabled” — during an arrest, all such suspects may be treated identically regardless of ability. In response the Court agreed to decide “whether Title II of the Americans with Disabilities Act requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect” while bringing him into custody.
But San Francisco’s written argument instead argued, “Sheehan was not entitled to receive accommodations in her arrest under Title II of the [ADA]” because her armed violence “posed a direct threat in the reasonable judgment of the officers”. In other words, San Francisco had changed from arguing no armed and violent, disabled suspect deserved an ADA accommodation, to arguing Sheehan particularly deserved no ADA accommodation because she appeared to be a direct threat.
Thus San Francisco’s argument derailed, on this and other points. Several minutes in Justice Kagan even prefaced a question with, “And while we are talking about questions that are not strictly speaking in the case,” to audience laughter. A Ninth-Circuit, plaintiff-friendly, appeal-by-the-government case is usually a strong bet for reversal, but San Francisco seems to have complicated its own case.
The Court could well dismiss this case as “improvidently granted”, preserving the lower court’s decision without creating precedent. Oral argument raised the possibility, but a month later it seems unlikely. San Francisco’s still likely to win, but the justices’ frustration with San Francisco’s alleged argument change might not bode well when San Francisco next wants the Court to hear a case.
Back to the letter
Again consider the letter urging San Francisco to abandon its appeal. Suppose the letter’s authors first privately requested San Francisco drop the case, resorting to open letter once those overtures failed.
But what if the letter wasn’t a complete failure? Could San Francisco have changed its argument to “split the baby”, protecting its officers and attempting to placate interest groups? The shift couldn’t have responded to just the letter, sent one day before San Francisco made its final argument. But it might have been triggered by prior behind-the-scenes negotiation.
This fanciful possibility requires that the open letter not be San Francisco’s first chance to hear its arguments. It further grants the letter’s authors extraordinary political power…yet too little to change San Francisco’s position. Occam’s Razor absolutely rejects this explanation. But if some involved interest group promptly tried to dissuade San Francisco, the letter might have been partially effective.
Final analysis
Are Justice Scalia’s and Sotomayor’s criticisms reasonable? I didn’t fully read the briefs, and I don’t know when it’s acceptable for a party to change its argument (except by settling the case). It appears to me that San Francisco changed its argument; my sense is doing so but claiming you didn’t is the wrong way to change one’s position. But I don’t know enough to be sure of either conclusion.
As I said yesterday, I didn’t fully prepare for this argument, so I hesitate to say too much. And frankly the messy facts make me glad I don’t have to choose a position. So I’ll leave my discussion at that.
A month ago, I visited Washington, D.C. to see (unfortunately only a subset of) friends in the area, to get another Supreme Court bobblehead (Chief Justice Rehnquist) — and, naturally, to watch interesting Supreme Court oral arguments. I attended two arguments on March 23: the first for a First Amendment case, the second for (roughly) a police use-of-force case.
A deep-blue morning at the Court
I did relatively little preparation for the police use-of-force case, limiting myself to the facts, questions presented, and cursory summaries of the parties’ arguments. My discussion of that case will be brief.
But the other case (for which I amply prepared) will receive different treatment. First Amendment law is extraordinarily complicated. A proper treatment of the case, its background, legal analysis, and oral argument discussion well exceeds a single post.
