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Concluding a discussion of the Supreme Court's term

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What else may be said about the Supreme Court term newly concluded? From the two Big Ones near the end and from the wailing that has followed them, some might infer that we now have a "liberal" court (meaning one that is at least somewhat to the left of the center of the US political spectrum, whatever exactly that in turn means). But that would be a superficial reading. This is after all almost the same configuration of justices that decided CITIZENS UNITED (2010). [Though Kagan has arrived and Stevens has departed since then.]

Looking at the three cases with which I began this discussion, last Saturday, it isn't obvious what chalk marks one would make on a left/right score board anyway. The energy-policy preemption case was a federal-state matter. Phrases such as "state's rights" are more part of the lexicon of the right than of the left. But in this case, it was Scalia who wrote the dissent, and who thus took the broader view of federal responsibility. The Jerusalem/passport case was a victory for the executive branch. What that means in crude left/right terms depends entirely on who is President at the moment, and who is running the houses of Congress.

Both with regard to the distinctions among the branches of a government, and the distinctions between the different govts in a federal system, the question is always "who do you trust," and one expects no other consistency from left or right, however defined. Also, factions that will support one foreign government over others in the context of domestic politics will take the side of that government's view of its own borders. A case about a passport listing Jerusalem as a birthplace necessarily becomes a case about Zionism.

With that said, I suggest we put the left/right scoreboard away.  

As promised, I will discuss today three orders the Court issued this term that didn't involve the issuance of opinions, one that set the table for what may be one of the more important decisions next year, the other two that determined how the law stands on certain matters by giving a circuit court the final say.

One Person, One Vote

The court agreed to hear a case that it may use to clarify the meaning of the "one person, one vote" rule that the court has enforced vis-a-vis voting districts since 1964.

 Evenwel v. Abbott. Those who say that the rule should actually be "one qualified voter, one vote" cite favorably something Judge Kozinski wrote in 1991: "a qualified voter has a constitutional right to vote in elections without having his vote wrongfully denied, debased, or diluted." Here is what the Cato Institute has said.

If there exists a pocket of people not qualified to vote (through alienage, let us suppose) on one district, call it ABC, and no such pocket in the neighboring district, DEF, then application of the idea of treating simple population numbers as the relevant metric will make the ABC district a more geographically compact one than it would otherwise be, and allow the lines of DEF to sprawl out a bit. So, come the next re-drawing iof lines, it is easy to understand residents of old DEF becoming unhappy that their district has grown and their own votes have been diluted, are of less significance than formerly in choosing public officials.

Conversion Therapy

In an action that some saw as a tip-off of where the court's deliberations on gay marriage were heading, the Court in early May 2015 refused to hear an appeal from the 3d Circuit's decision upholding the New Jersey ban on "conversion therapy," as practiced on minors, that is, on efforts to change the sexual orientation of young teens are or who who seem to their parents to be heading toward homosexuality.

The case, King v. Christie, thus stands where the 3d Circuit Court of Appeals left it. The statute barring licensed health care professionals in New Jersey from offering such therapy, challenged on first amendment theories, was upheld by that appeals court, so the decision not to take the appeal leaves that law in force.

I confess to some ambivalence on this case. First, I think a lot of room ought to be left for alternative ideas of medicine. Otherwise, the credentialed/licensed practitioners become too tight a guild and they serve their own interests as a faction, calling those interests by the hallowed name of science.

Yes, I understand the idea that "conversion therapy" is simply hokum, and that as with any other sort of fraud those who are suckered into paying for it should have a way of achieving restitution. But I'm not sure why common-law notions of civil fraud don't satisfy that purpose, that is, why a statute was necessary such as that New Jersey invoked here.

There is also the concern that conversion therapy does more than merely fail (and leave the hucksters wealthier). It is worse than that because it hurts those minors whom it pretends to help. I understand this concern, but again, I'm not sure how strong an argument it is for the statute. If a homosexually-inclined minor has the great misfortune to live with homophobic parents, this statute limits the ways in which their mental disorder can become his. It limits the ability of certain third parties to serve as their tools in delivering that harm. But does it really increase the harm done? The ones inflicting the harm, after all -- the parents who hire the fraudsters -- will surely inflict it as best they can even without this particular brand of fraudster.

Java API 

Regular readers of this blog must know that I have followed intellectual-property issues with especial attention. Accordingly, it won't surprise that I end this three-part discussion of all things SCOTUS with a few words about a copyright dispute.

The Supreme Court has now, as of the last day of the term, refused to hear an appeal from a Federal Circuit decision in Oracle v. Google, over Oracle's copyright interest in Java API packages. API stands for Application Programming Interfaces, never mind for now exactly what that means.

What the decision means is that the Federal Circuit's decision, acknowledging that property right, is the law of the land. As to those two digital-industry giants, their dispute is not yet settled. The matter will return to the trial court, and Google will presumably seek to avoid penalties by arguing "fair use," a sort of catch-all defense.

As an anarcho-capitalist, I suppose I should be torn. The right-hand side of that hyphen indicates I should support the property rights of corporations like Oracle, which bought Sun, whose engineers created the Java programming language, the platform built thereon, and the APIs in question.

Still, listening to the left-side of the hyphen, my anarcho soul, I tend to take a "don't fence in innovation" view of IP disputes. This one among others. So I wish Google best of luck on remand.

And that will conclude my Supreme Court round-up for another year.

Oh, and by the way, if you do want to understand "application programming interfaces," you might start here.


  1. Christopher,

    Am I correct that your ambivalence about the conversion therapy statute concerns its necessity, not its constitutionality?

    On the question of its necessity, you write that you're not sure why common-law notions of civil fraud don't satisfy its purpose. But doesn't the statute establish that conversion therapy is fraudulent? Without the statute, the question would have to be litigated in each civil fraud case, unless the state's highest court ruled that it was always fraudulent.

    In addition, a criminal statute (if the conversion therapy statute is one) serves as a stronger deterrent than do civil suits. An organization that provides conversion therapy could settle suits against it yet still find it profitable to continue to provide conversion therapy.

  2. The question of necessity and that of constitutionality are not separable. If we apply standard first amendment analysis at all (an important question in itself) then we'd put the burden on upholders of the law. Here, as with standard equal protection analysis, we'd ask what tier we apply. Then (whichever tier it was) we'd ask how important are the goals that justify the speech restriction in question. Preventing fraud, important. Preventing harm to minors, even more so. THEN we'd ask about the relationship between ends and means. That last one might, I think, get tricky.

  3. Christopher,

    I agree with you, except for your use of the word "tier," which is not used in the First Amendment context. But our difference may be essentially just semantic.

    The first question for the court, as you say, would be whether to apply the First Amendment. If the state regulates psychotherapy, then I doubt that the court would apply the First Amendment so as to permit speech that constitutes malpractice. Would a court hold that a psychotherapist has a free speech right to advise his clients to commit suicide?

    If a court did apply the First Amendment, then it would not think in terms of tiers. It would decide what type of speech was at issue, and then apply the test that the Supreme Court has held to determine the constitutionality of that type of speech. Conversion therapy, if it is deemed speech for First Amendment purposes, would be fully protected speech. (What else could it be? It wouldn't be, for example, commercial speech, an incidental restriction on speech, or a time, place, or manner restriction. It would be content-based censorship.)

    Fully protected speech may be censored only if it survives strict scrutiny, which means that the court finds that the restriction is necessary "to promote a compelling interest" and is "the least restrictive means to further the articulated interest." (I'm quoting Supreme Court cases.) You say that the court would ask how important are the goals that are claimed to justify the speech restriction. That is the "compelling interest" part of the test. You don't address the "least restrictive means" part of the test, but I think that it would go without saying that banning conversion therapy is the least restrictive way to prevent the harm it does, for what other way could there be?

  4. Henry: You are of course right on the law. I'm encroaching on your field of expertise after all.

    I think I could make a decent case, if I worked at it a bit, that for a therapist to say in the course of a session, "you should try to suppress your desire for members of your own sex" is protected speech, what I was loosely speaking of as top tier. Further, I could probably make a case that the goals I mentioned can be advanced by less restrictive methods. They would have to involve creating exemptions to the usual rule of therapist-patient confidentiality, because they'd have to involve some sort of state monitoring of the sessions in question. Still, monitoring is less restrictive than prohibition.

    I COULD make that case, I suppose. I don't want to, because I don't want to talk myself into a position there.

    As to the "intermediate tier," I had in mind the possibility of a "therapist" of this sort trying to market his services, and being punished for THAT speech (not the speech within the therapy session itself). That speech might be protected to some degree and treated according to what I was loosely calling the intermediate tier, i.e. the CENTRAL HUDSON test for commercial speech. If that is still in place. Now as a consequence of the resolution of this case, the speech marketing the therapy would be advertising an illegal activity, so it would fail by the first prong of that test.

    But if its illegality were uncertain, and the court proceeded to the other parts of Central Hudson, then the means-end connection would become the heart of the matter. And the points in the original post, indicating that the statute may not advance the causes involved all that much, would become more germane.


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