Now the second, final argument this trip. (There are other arguments this week, some interesting enough to attend. But I ran out of time to prepare for them or attend them.) Holt v. Hobbs is much simpler than Heien v. North Carolina, because one side’s arguments are “almost preposterous”. So this post is (slightly) breezier.

This line was a bit different from the Heien line: more people attending for (this) argument, fewer people present simply for opening day. The line was possibly less talkative (and I still had briefs to read, although I never intended to read all twenty-one [!] of them), but there were still good discussions with local law students, the author of one of the amicus briefs (which I naturally read standing in line), and others. Good fun again.

Gregory Holt and his would-be beard

Gregory Holt is a Muslim inmate in the Arkansas prison system. (He actually goes by Abdul Maalik Muhammad now; Gregory Holt is his birth [legal?] name. News stories and legal discussion refer to him as Holt, and in some sense I want this in that corpus, so I use Holt here.) Holt interprets Islamic law to require he have a beard.

Allah’s Messenger said, “Cut the moustaches short and leave the beard (as it is).”

A small request. Reasonable? Quoting the ever-colorful Justice Scalia in oral argument, “Religious beliefs aren’t reasonable. I mean, religious beliefs are categorical. You know, it’s God tells you. It’s not a matter of being reasonable.” Reasonable or not, a beard isn’t an obviously dangerous request like, “My religion requires I carry a broadsword.” And as a conciliatory gesture Holt moderated his request to a half-inch beard.

Arkansas: no beards

Arkansas doesn’t permit prisoners to grow beards (except to the natural extent between twice-weekly shaves). There’s an exception for prisoners with medical conditions (typically burn victims), shaving only to 1/4″. But no religious exceptions.

Arkansas’s justifications are three. A beard could hide contraband. A bearded prisoner can shave to disguise himself, hindering rapid identification and perhaps aiding an escape (see The Fugitive). And it’s a hassle measuring half-inch beards on everyone.

The law’s requirements

Twenty-odd years ago, Holt would likely have been out of luck. Turner v. Safley permitted regulations “reasonably related to legitimate penological objectives”. And Justice Scalia’s Employment Division v. Smith says that as a constitutional matter, generally-applicable laws may burden religious exercise, with objectors having no recourse. It’d be an uphill slog getting past the no-beard rule.

But in the mid-1990s to 2000, Congress near-unanimously statutorily protected some exercises of religion, even against generally-applicable laws. (Lest it be thought this was protection specifically, or only, of Christian beliefs: the original motivating case was a Native American group that used a hallucinogen for sacramental purposes.) In particular Congress enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA, usually “ruh-loo-pah”), stating:

No government shall impose a substantial burden on the religious exercise of [a prisoner], even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person—

1. is in furtherance of a compelling governmental interest; and
2. is the least restrictive means of furthering that compelling governmental interest

And “religious exercise” is later defined as:

The term “religious exercise” includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.

Now, prisons may regulate in pursuit of normal prison aims. But regulations can’t “substantial[ly] burden” a prisoner’s “religious exercise”, regardless how important the exercise is(n’t) in the prisoner’s belief system, even if the regulation is general and doesn’t target religion — unless the government demonstrates the regulation satisfies a “compelling interest” that can’t be addressed less restrictively. This phrasing comes from strict scrutiny: the strongest form of review American courts apply to laws. Unlike the Turner/Smith regime, these requirements have teeth.

Evaluating Arkansas’s no-beard rule applied to Holt

As a threshold matter, Holt must wish to engage in “religious exercise” that is “substantial[ly] burden[ed]”. Once Holt claims the belief, courts won’t second-guess it. They will consider whether the belief is sincere: no opportunistic exception requests for unwarranted benefits. But no one contests the sincerity of Holt’s beliefs. If Holt refuses to be shaved, he’ll suffer various disciplinary actions and bad consequences: “loss of privileges, punitive segregation, punitive work assignments, and loss of good-time credits”. Certainly a substantial burden.

Now Arkansas must demonstrate — with evidence, persuasively — both a compelling interest, and least restrictive means. Put another way, does Arkansas’s regulation pass strict scrutiny?

Arkansas’s claimed interests are “prison safety and security”. But a no-beards rule only marginally advances these goals, and “the government does not have a compelling interest in each marginal percentage point by which its goals are advanced.” Arkansas’s interest must be more specific: an interest specifically in no beards.

It’s hard to say Arkansas has a compelling interest when the rules in forty-odd prison systems nationwide, and various penal code recommendations, either impose no restrictions on beards among prisoners, or would allow Holt his 1/2″ beard. Arkansas is an outlier. And Arkansas’s medical exemption undermines the argument that no beards must apply universally (compelling interests often brook no exceptions). Similarly, Arkansas can’t use the least restrictive means when forty jurisdictions use even less restrictive means.

Arkansas might justify their policy through unique local experience. But Arkansas concedes “no example” of anyone hiding contraband in a beard. (With the “caveat” that “Just because we haven’t found the example doesn’t mean they aren’t there.” A strong argument!) Disguise arguments could be addressed by taking multiple pictures (as other systems do). And measuring the few inmates requesting religious exemptions wouldn’t be much harder than measuring medical-exception beards.

Arkansas could “demonstrate” strict scrutiny is satisfied by providing evidence of evaluation and reasoned rejection of other states’ policies. But Arkansas previously admitted it considered no other systems (eliciting an acerbic suggestion to try “the common practice of picking up the phone to call other prisons”).

Arkansas could argue that Arkansas’s system, that houses many prisoners in barracks and not separate cells, justifies no beards. But such systems exist elsewhere, and no beards applies in Arkansas’s non-barracks prisons.

In short, Arkansas has demonstrated neither a compelling interest, nor least restrictive means, and it has done so presenting no evidence. Ouch.

In lower courts

An obvious question: why must Holt fight this in court if he’s so obviously right? Basically, a few lower courts are giving far too much deference (a word found in legislative history but not in the statute) to the mere assertions of prison officials, without requiring them to “demonstrate” much of anything. The magistrate judge described officials’ claim that Holt might hide something in his half-inch beard as “almost preposterous” — just before deferring to those claims. Courts below the Supreme Court similarly gave too much deference to prison officials’ bare assertions unsupported by any data.

At the Supreme Court

One indicator of lopsidedness here is the brief count, and authors, on each side. Holt has seventeen other briefs on his side, representing a wide variety of interests: Jewish, Christian, Islamic, Hindu, Sikh, American Indian and Hawaiian, former prison wardens, former corrections officials, Americans United for Separation of Church and State (whose brief, incidentally, is interesting but quite surpassed by later events), sociologists, and the United States government (and others). The authors include a who’s-who of religious freedom organizations. Arkansas has one brief on its side: from eighteen states, who don’t defend Arkansas’s policy as much as try to preserve deference as an element to consider (presumably so those states’ prison systems can be run with a freer hand).

The Court accepted this case in unusual circumstances. Holt filed a hand-written petition requesting Supreme Court review, through a special system not requiring him to pay filing fees from non-existent income. Such petitions are almost never accepted. (Holt basically won the lottery. That said, when I read his brief after the case was accepted, the form was unusual, but the discussion and presentation seemed orthodox.) It’s pretty clear the Court accepted this case to lopsidedly, probably unanimously, overturn the Eighth Circuit. The Supreme Court doesn’t take cases to correct errors, but that’s what they’ll do here.

Oral argument

The argument questions roughly ran in largely three veins: pondering deference, drawing a line, and almost mocking Arkansas’s arguments. Holt’s counsel faced difficult questions, but not skeptical questions.

Deference

First, what does deference (if it even matters — the term appears only in legislative history, not in the law as enacted) look like in the context of strict scrutiny? These are somewhat contradictions in terms. Yet the Court somehow must make sense of this.

Line-drawing

Second, while beards are easy to decide, other issues (Sikh turbans that actually can conceal things, for example) will require different considerations. How can the Court provide general guidelines to address these situations? The Court doesn’t want to be in the business of reviewing every prison official’s (better-“demonstrated”) decisions. (Scalia bluntly put it this way: “Bear in mind I would not have enacted this statute, but there it is.” Recall he wrote Employment Division v. Smith, shutting off constitutional religious exemptions from generally-applicable laws. Something to remember any time Scalia’s stereotyped as reflexively pro-religion.) But Congress opened up that box, so courts have to live with it.

Almost mocking questions

Arkansas’s position is not easily defended. Not surprisingly, then, questions and comments almost made fun of Arkansas’s position. To the assertion that “Just because we haven’t found the example doesn’t mean they aren’t there”, Justice Breyer replied, “There are a lot of things we’ve never found that might be there and I’ll refrain from mentioning them. You see them on television, a lot of weird programs from time to time.” (Presumably referring to things like Sasquatch, the Loch Ness Monster, Ghost Hunters, and similar.) And later, Justice Alito proposed an alternative means of detecting beard contraband: “Why can’t the prison just…say comb your beard, and if there’s anything in there, if there’s a SIM card in there, or a revolver, or anything else you think ­­can be hidden in a half-inch beard…” (emphases added). Both lines made the audience erupt in laughter.

Why Arkansas fights

It’s unclear to me why Arkansas is still arguing. They won in lower courts. But once the Court granted the in forma pauperis petition, Arkansas should have folded. The law is too clearly against them, and this Court won’t give them a pass. Arkansans should be outraged that their state is wasting taxpayer money to defend this system. (And on the policy’s merits, outraged at the petty bureaucratic nonsense at best, and bigotry at worst, it represents.)

One plausible, potentially upsetting, explanation is provided by former prison wardens: “Political Considerations May Underlie Prison Officials’ Resistance to Accommodations of Religious Practices.” These wardens had been sued (and lost) in various cases cited in briefing, and they candidly admitted that their positions were partly attributable to “political realities”.

Conclusion

Arkansas will lose. The only remaining question is how. (And as before, if I’ve made any mistakes in this discussion, please point them out.)

(Just started reading? See part 1, part 2, part 3, part 4, part 5, and part 6.)

Back in April I visited Washington, D.C.. I visited partly to pick up some bobbleheads at an opportune time (just before Easter, and just before visiting family nearly as far eastward from California) and partly to attend Supreme Court oral arguments while I had the chance. The two cases I saw argued were Tapia v. United States and Microsoft v. i4i Limited Partnership. Shortly after I made some minor predictions for the cases, following up on an introduction of the cases and thoughts from oral argument. Let’s take a look at how the cases turned out, before the October 2011 term arguments start. (At this point on Monday, October 3, there’s probably already a line outside the Supreme Court building for the first arguments of the term.) If you need a refresher on the cases themselves, read my introductions noted above: for space reasons I won’t review much here.

Tapia v. United States

The Court unanimously ruled for Tapia, deciding that a judge may not consider the availability of rehabilitation programs when imposing a sentence of imprisonment or in choosing to lengthen a sentence.

The opinion

Justice Kagan wrote the opinion for a unanimous Court. Tapia had been sentenced to 51 months in prison, seemingly because the sentencing judge thought she should take part in a particular drug treatment program: a program she’d only be eligible for if she were in prison for a longer sentence. Justice Kagan’s concluded that a sentencing court can’t impose a prison term, and it can’t extend a prison term when it has decided to impose one, to foster a defendant’s rehabilitation.

Justice Kagan first briefly reviewed the history of the Sentencing Reform Act which enacted the relevant statutes (displaying almost professorial affection in noting that, “Aficionados of our sentencing decisions will recognize much of the story line.”). She concluded that the Act was intended to make sentencing more deterministic and consistent by eliminating much discretionary authority during sentencing and prior to release.

Justice Kagan next turned to the text of the relevant laws. She examined the text of 18 U.S.C. §3582(a), which reads:

The court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term…shall consider the factors set forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation.

Justice Kagan concluded that, “§3582(a) tells courts that they should acknowledge that imprisonment is not suitable for the purpose of promoting rehabilitation.” While Justice Kagan noted that the text could have been more commanding — “thou shalt not”, say — she thought that Congress had nonetheless made itself clear. Justice Kagan also considered the argument that the “recognizing” clause applied only when determining a sentence, not when possibly lengthening it. She rejected this argument, noting that standard rules of grammar argued that a court considers the relevant factors both when deciding to imprison and when determining the length of imprisonment, and from this concluding that a court must “recognize” the inappropriateness of imprisonment for rehabilitation both when sentencing and when choosing a duration of imprisonment.

Justice Kagan also noted context supporting her interpretation. She led with 28 U.S.C. § 994(k), which I previously noted could shed light on the proper interpretation. She also noted the pointed absence of statutory authority for courts to ensure offenders participated in rehabilitation programs. (Tapia didn’t participate in the relevant rehab program because she wasn’t sent to the prison the judge recommended and because she wasn’t interested in the program.) Finally, she noted that those willing to consider legislative history would find support for her interpretation in the relevant Senate Report.

Justice Kagan next rejected arguments that the “rehabilitation model” which the SRA supplanted referred only to undue belief in “isolation and prison routine” causing the prisoner to reform. She called this reading “too narrow”, citing an essay which characterized the rehabilitation model more broadly. This was Part III, section B, if you’re interested in more detail — I’m not going to attempt to summarize any further than that.

Justice Kagan last noted that the sentencing judge may have improperly considered rehabilitation in determining the length of Tapia’s sentence. Thus the Court left open the possibility that the sentencing judge might not have done so. Finally, the Court sent the case back to the Ninth Circuit for further action.

The concurrence

Neither Justice Sotomayor nor Justice Alito was convinced that the sentencing judge actually did improperly sentence Tapia. Evidently unsatisfied by Justice Kagan’s noting that the sentencing judge only might have acted improperly, Justice Sotomayor wrote a concurrence, joined by Justice Alito, explaining why she thought the sentencing judge had not acted improperly. At the same time, she noted that the sentencing judge’s rationale was less than clear, and that she wasn’t completely certain that he hadn’t acted improperly. Thus both justices nonetheless joined Kagan’s opinion in full.

The outcome

None of this means that Tapia will necessarily get what she presumably wants: a shortened prison sentence. The Court reversed the judgment of the circuit court that upheld her sentence, and it remanded so that court would take a second look, but it didn’t specify the actual outcome. Justice Kagan’s opinion doesn’t conclude that the sentencing judge improperly lengthened Tapia’s sentence for the purpose of rehabilitation: it merely says that the judge may have done so. Justice Sotomayor’s concurrence, joined by Justice Alito, only further emphasizes this point. So on remand, the lower court might conclude that the sentencing judge didn’t improperly lengthen Tapia’s sentence to 51 months. Or it might not. Either way, Tapia’s done well so far: getting the Supreme Court to hear your case, and to rule in your favor, is no small feat.

Even if Tapia convinces the Ninth Circuit that the sentencing judge improperly lengthened her sentence, Tapia might be unsuccessful. Justice Kagan’s opinion concludes with, “[w]e leave it to the Court of Appeals to consider the effect of Tapia’s failure to object to the sentence when imposed.” So Tapia might have missed her chance to win that argument.

Thoughts

I’d gone into this case understanding it to be a nice concise demonstration of statutory interpretation, and I wasn’t mistaken. I wasn’t certain of the correct outcome on first reading the briefs, but §994(k) sealed it for me. It was nice to be vindicated in my thoughts on the case.

It’s easy to overread a case, picking out extremely nitpicky details and magnifying their importance. At the same time, a few details in Kagan’s opinion stuck out at me. First, in analyzing the statutory text, Kagan turned to the 1987 Random House dictionary for definitions. The Sentencing Reform Act was enacted in 1984, so the 1987 dictionary is contemporaneous. Second, Kagan prefaces the paragraph dealing with legislative history, “for those who consider legislative history useful”. The textualists on the bench will insist that the proper dictionary to interpret language is one contemporary with its writing, as a 1987 dictionary would usually be for a 1984 law. And Justice Scalia in particular rejects any reference to legislative history: he believes the law is what was passed, not what was not passed, as the aforementioned Senate Report was not. I think Kagan probably wrote as she did as gestures of comity to her fellow justices, such that everyone would be happy with the resulting opinion. Maybe that’s an overread, but I would guess it isn’t.

It’s also worth noting that this case was unanimous. Remember, a plurality to (more often) a majority of all Supreme Court decisions are unanimous. The Justices are not as fractious a bunch as you would believe from the cases and decisions that receive significant airplay.

Microsoft v. i4i

The Court unanimously (minus Chief Justice Roberts, who had recused himself apparently because his family owned Microsoft stock) ruled that the standard of proof for patent invalidity was clear and convincing evidence, not the lesser burden of merely a preponderance of the evidence. Further, it concluded that this standard was consistent both for evidence which the Patent and Trademark Office had reviewed, and for evidence which it had not reviewed.

Justice Sotomayor’s opinion for the Court

Justice Sotomayor wrote the opinion for all but Justice Thomas (more on him later). Her opinion relied on Justice Cardozo’s opinion in RCA v. Radio Engineering Laboratories, Inc.. Justice Cardozo in 1934 had described the standard of proof for finding invalidity as “clear and cogent evidence”. By the time the language at issue in Microsoft was added, Justice Sotomayor deemed this language to have become part of the common law (roughly: judge-made law, when some dividing line or another must be set for consistency but no laws have specified one). Moreover, she deemed Congress’s language to have used terms of art with well-known meanings to judges, which codified the “clear and convincing” standard. Thus until Congress says otherwise, “clear and convincing evidence” is the standard of proof for declaring a patent invalid.

Justice Sotomayor disagreed with the various narrow views Microsoft took of prior patent decisions, both at the Supreme Court and in lower courts, which would have set different standards of proof for certain forms of evidence. (Curiously, those forms happened to be the ones Microsoft was trying to use.) She said that even “squint[ing]” the Court couldn’t see qualifications of when clear and convincing would apply as the standard.

Justice Sotomayor also disagreed with Microsoft’s alternative argument that a reduced standard of proof applies to evidence not reviewed by the PTO. She thought that prior cases at the Court and elsewhere had consistently at most concluded that evidence reviewed by the PTO could be deemed to have “more weight” than evidence not seen by it.

Finally, Justice Sotomayor addressed the competing policy arguments of both parties: “We find ourselves in no position to judge the comparative force of these policy arguments.” Instead she said the ball was in Congress’s court: if a different standard of proof was to apply, it was up to Congress to enact it.

Justice Breyer’s concurrence

Justice Breyer, joined by Justices Scalia and Alito, wrote separately to emphasize that the clear and convincing standard of proof applied only to questions of fact, not to questions of law. What’s the difference? A jury will decide the facts of a case, but it won’t decide what the nature of the legal issues are in it, or how those issues map onto the facts. Those legal issues are determined by judges, consistent with statutory and common law, at least partly to ensure consistency in application. Quoting from Breyer’s concurrence (citations omitted) will probably illuminate the difference better than I can summarize it (or at least illuminate no worse):

Many claims of invalidity rest, however, not upon factual disputes, but upon how the law applies to facts as given. Do the given facts show that the product was previously “in public use”? Do they show that the invention was “nove[l]” and that it was “non-obvious”? Do they show that the patent applicant described his claims properly? Where the ultimate question of patent validity turns on the correct answer to legal questions—what these subsidiary legal standards mean or how they apply to the facts as given—today’s strict standard of proof has no application.

Justice Thomas’s concurrence in the judgment

Justice Thomas in his opinion agreed with the result, but he didn’t agree with the reasoning used to reach it. Unlike the other justices, he thought that when Congress said a patent should be “presumed valid”, that did not clearly indicate to judges that Congress intended to codify the clear and convincing standard. But since Congress had not specified a standard of proof, Justice Thomas concluded that the common law rule from Justice Cardozo in RCA applied. So in the end Justice Thomas held that the standard of proof of invalidity was clear and convincing evidence, but he reached it in a different manner.

The outcome

On the face of it, Microsoft losing here means that if they want to avoid a $300 million judgment, they’re going to need to try another argument in the lower courts. But since they’ve already gone through once, they’re mostly limited to whatever arguments they’ve already made, and preserved to be argued further. I don’t know how many that is, but at this point I’m guessing it’s pretty small. So Microsoft is likely out $300 million at this point, plus a bunch more for the legal costs of litigating this matter for as long, and as far, as they did.

Thoughts

This was another fun case to follow, although unlike Tapia it was much harder to follow, and it required more knowledge of the surrounding law to really understand it. Policy-wise, I tend to think it might be better if patents were easier to overturn. Thus for that reason I think a lower standard of proof might be a better thing, although it’s hard to be sure if such a change wouldn’t have other adverse effects negating that benefit. But as far as the actual law goes, and not what I wish (however uncertainly) might be the case, Microsoft seemed maybe to be stretching a little. (Maybe. It was hard to be sure given the extent of my experience with any of the relevant laws, cases, &c.) Looking at the opinions in retrospect, that intuition seems to have been right.

As far as the opinions go, I find something to like in all of them, to some degree or another. The “clear and cogent” language in the Cardozo opinion did seem fairly clear in explaining a standard of proof, if one assumed Microsoft’s narrow read of the conditions when it applied to be a stretch. All the justices agreed on that. Breyer’s opinion distinguishing questions of fact and law seemed pretty smart, too: given how complex this area of law seemed just trying to read up for one case, probably nobody would be very happy if questions of law got lumped in with questions of fact for juries. And I liked the way Justice Sotomayor brushed off all of the policy arguments both sides made (arguments so lopsidely unbalanced and cherry-picked that relying on either completely would be destructive to the ends of the patent system). Ideally courts should merely interpret the law, not make policy or choose amongst policies, and the legislative and executive branches should decide policy.

But Justice Thomas’s opinion, lumped in with the parts of Justice Sotomayor’s opinion with which he agreed, seems like the best reading to me, at least based on what I (think I) know. I didn’t really think the words “shall be presumed valid” clearly referred to a particular standard of proof such that they could be a term of art, as all the justices but Thomas would have. At this point, assuming I understand how the law works correctly in the absence of legislative action, reverting to the state of the matter as it was before — that is, Justice Cardozo’s position — seems the right move to me.

Again, that’s just how I’m reading the law. It’s not really what I want in the patent system, which I think could use a good number of changes to adapt to the modern world.

It’s also worth noting — again — that this case, too, was unanimous. I was a little surprised that both cases turned out that way, as my half-informed readings had made me think neither case was quite that straightforward. Then again, the Supreme Court never really gets easy cases, yet even still they’re frequently unanimous. So I shouldn’t be too surprised even in these particular cases.

Conclusion

If you haven’t done it already, I’d recommend taking a look at the actual opinions in these cases. Law has this stigma of being inscrutable. In various areas of law, it doubtless is just that. But in areas not densely technical, legal opinions (particularly higher-court opinions) can be surprisingly readable (once you condition yourself to skip over all the inline citations). Both cases weren’t so densely technical that an intelligent reader couldn’t follow them. Indeed, I’d say they were generally fairly readable. Give it a shot: you might be surprised what you can learn reading the occasional legal opinion. And when a news story breaks, you’ll get a much less colored view of it if you read it from the source, rather than merely read coverage of it.