Editor: Please tell our readers about your background and work in the U.S. Justice Department’s Office of Legal Counsel. How does that experience coincide with your practice at Akin Gump?
Small: I am in the Supreme Court and Appellate Practice Group at Akin Gump. My years at the Office of Legal Counsel helped provide important experience and a background for my current practice at Akin Gump. At the Office of Legal Counsel, a lawyer’s primary job is to write very detailed and scholarly opinions on constitutional issues and important issues of statutory construction for the President, the Attorney General and heads of other agencies of the federal government. The writing is similar to that of writing a judicial opinion, but for an audience in the executive branch of the federal government. In some sense, it is like the job I do now, where I write briefs that the courts read and hopefully turn into judicial opinions that favor my clients.
Before I went to the Office of Legal Counsel, I started my career in the late 1980s at Wilmer Cutler Pickering in Washington, DC at a time when big firms like Wilmer and Akin Gump did not have discrete Supreme Court and Appellate practice groups, a practice that started later during the time I began to work for the government. In any event, at Wilmer, I was fortunate to spend a good amount of time working on some high-profile Supreme Court and appellate matters. That work was followed by Office of Legal Counsel experience in the 1990s. And as I progressed in my professional career, I realized that I really wanted to be a full-time Supreme Court and appellate practitioner.
Editor: What are your observations about the most recent term of the Supreme Court in terms of the legal philosophy that characterized the majority voting on the Court? Were there more five-to-four decisions than in previous terms? How would you characterize Justice Kennedy’s position?
Small: Bear in mind that about 49 percent of the decisions this past term were unanimous, uniting the conservative and liberal members of the Court. That figure is consistent with figures from recent years, despite the strong ideological views of the justices. However, 29 percent of this term’s decisions were five-to-four decisions, a bit more than the average for the previous four terms where the average five-to-four split was about 22 percent. Justice Kennedy was in the majority of the Supreme Court decisions this past term 91 percent of the time and in the majority in 83 percent of the cases in which the Court was divided (that is, in which there was not a unanimous decision). In 43 percent of the five-to-four cases, Justice Kennedy was in the majority with the four conservative members, and in 26 percent he was in the majority with the four liberal members. Justice Kennedy is in the majority more often than any other member of the Court in all cases as well as in cases in which there is a division. Justice Kennedy’s record this past term is consistent with his record over the last five years on the Roberts Court as the swing vote in five-to-four cases.
Editor: One of the cases in which you were involved is the Arizona Voting Rights case (Arizona v. Inter Tribal Counsel). In this case, the federal statute requiring only that a voter attest to his citizenship, not that he or she show documented proof of citizenship as the Arizona law demanded, was upheld by the Supreme Court. Please explain the background for the case and its importance.
Small: This case, Arizona v. Inter Tribal Counsel, involved an asserted conflict between the federal National Voter Registration Act, also known as The Motor Voter Act, on the one hand, and, on the other hand, Arizona’s Proposition 200. The federal Motor Voter law was passed to make it easier for Americans to register to vote in federal elections. Among other things, the federal law requires the states to accept and use a federal voter registration form for voter registration for federal elections that is approved by a federal agency set up by the Motor Voter law. The federal form requires an applicant to attest under penalty of perjury that he or she is a U. S. citizen but does not require any additional proof of citizenship. Arizona’s Proposition 200, which was passed in 2004 and was ostensibly intended to combat alleged fraud in voter registration, required the registrant to provide proof of U.S. citizenship when submitting the federal form. Arguing for our side of the case, the challengers to Arizona Proposition 200 asserted that the Arizona law could not stand because it was preempted by the federal Motor Voter law. The Supreme Court, by a seven to two vote, in a decision written by Justice Scalia, agreed with our position, holding that Proposition 200 was preempted by the federal Motor Voter law.
Editor: What effect did the imposition of the Arizona law have on voter registration in Arizona when it was enacted?
Small: The record in the case indicated that over 20,000 applicants to register to vote in federal elections in Arizona had their registration forms rejected by Arizona authorities while Proposition 200 was in effect.
Editor: A case of even greater import that followed this decision is that of Shelby County Alabama v. Holder. What are the long-term implications of this decision?
Small: This may be the most important decision of this past term. The Supreme Court in the Shelby County case held unconstitutional on federalism grounds Section 4 of the Voting Rights Act of 1965. Section 4 of the Voting Rights Act of 1965 establishes a formula for determining which states and parts of states must under Section 5 of the Act get pre-clearance from the Justice Department or a federal court in Washington before they change their voting laws. It is generally regarded that Sections 4 and 5 together (Section 4 the coverage formula, Section 5 the pre-clearance requirement) are cornerstones of the civil rights movement and monumental achievements in our nation’s struggle for racial equality. What the Supreme Court said in Shelby County is that the coverage formula for determining which states or parts of states are subject to the pre-clearance requirement does not reflect current conditions on the ground today in those states and in the nation as a whole. According to the majority opinion, written by Chief Justice Roberts and joined by Justices Scalia, Kennedy, Thomas and Alito, it offends the equal dignity of states to single out some states and subject them to this pre-clearance requirement based on what the majority of the Court thought was an outmoded formula that had not changed for 40 years. When Congress re-authorized the Voting Rights Act in 2006, it maintained the same coverage formula that had been in place for four decades. Chief Justice Roberts’s opinion said that what Congress needs to do is to adjust the coverage formula and, based on current data, figure out which states or parts of states should be subject to the pre-clearance requirement.
Justice Ruth Bader Ginsburg offered a passionate dissent, joined by the three other more liberal members of the Court. Among other things, Justice Ginsburg’s dissent states the following: (1) It takes the majority to task for failing to articulate and explain the constitutional standard that the majority was applying. Justice Ginsburg questioned the notion that there is a requirement in the Constitution that Congress must treat states with "equal dignity." (2) Another of her objections is that Sections 4 and 5 of the Voting Rights Act together have been very successful, and it was precisely because of their success that the majority believed that the country does not need them anymore. Justice Ginsburg argued that this is like saying you don’t need an umbrella in a rainstorm because the umbrella is keeping you from getting wet. (3) Justice Ginsburg also stated that Congress made a considered judgment that Section 4 and Section 5 together were necessary precisely to ensure that states covered by Sections 4 and 5 did not backslide and engage in the practices that prompted the Congress to pass the Voting Rights Act in the first place in 1965. (4) The last thing that Justice Ginsburg objected to in the majority opinion is that, while being very solicitous of states (i.e., Congress must treat states with equal dignity), the majority opinion pays short shrift to the role of Congress in enforcing the Voting Rights Act, in that Congress has power under the 14th and 15th Amendments to pass laws to promote racial equality. According to Justice Ginsburg, the majority downplays and minimizes the work that Congress has done over the years in determining that Section 4 and 5 coverage formula was still warranted. Justice Ginsburg said that there had been a long tradition of judicial deference to congressional judgments with respect to the Voting Rights Act. In this case, however, according to Justice Ginsburg, the Court ran roughshod over that tradition. Justice Ginsburg noted that, in the most recent re-authorization of the Voting Rights Act in 2006, both houses of Congress held extensive hearings, considered reams of documents, heard many witnesses and made a considered judgment to re-authorize the Voting Rights Act and to maintain the coverage formula. She observed that the Voting Rights authorization of 2006 passed the Senate by a 98-to-0 vote and passed the House by 330 to 32.
Editor: How did the governor of Texas react to the majority decision?
Small: The governor and the attorney general of Texas, as well as officials in other states that, like Texas, were subject to the Section 5 pre-clearance requirement because they were subject to the coverage formula in Section 4, declared that they now will adopt certain laws that, in the prior regime, probably would not have attained pre-clearance by the Justice Department or by a federal court before going into effect. So, for example, in Texas, the attorney general and the governor have declared that Texas is now going to move forward with a voter ID law that, under the pre-clearance regime coverage formula, Texas could not have put into effect.
Now, the Justice Department has already filed suit to block this measure and other similar laws springing up among the affected states under Section 3 of the Voting Rights Act, which allows the federal government and private parties to sue to block changes in voting practices. One difference from Sections 4 and 5 is that, under Section 4, the burden is on the affected jurisdiction to prove that its practice did not discriminate on the basis of race. Section 3, the provision the Justice Department now has to invoke, places the burden on the government to show that what Texas is doing is discriminatory – and intentionally discriminatory at that.
Editor: Another case of great significance is U.S. v Windsor. What are the implications for states that authorize same-sex marriage and the 37 that do not authorize it in terms of inheritance, employee benefits and taxation? What is the status of a non-citizen in terms of marriage equality?
Small: The Supreme Court decision in Windsor, in a five-to-four majority opinion authored by Justice Kennedy, held that Section 3 of the Defense of Marriage Act violates equal protection principles. Section 3 of the Defense of Marriage Act defined marriage for purposes of federal law as a marriage between a man and a woman. The Supreme Court struck down that provision. What that means is that, in those states that recognize same-sex marriage, same-sex married couples are treated the same for purposes of federal law as heterosexual couples. They are entitled to the same federal benefits, such as employee benefits, tax benefits, etc., as a heterosexual couple in those states. In the states that do not recognize same-sex marriage, the Windsor decision does not require those states to change their laws precluding same-sex marriage. All Windsor says is that the federal Defense of Marriage Act is unconstitutional insofar as it treats same-sex couples differently from heterosexual couples for purposes of federal law. Windsor does not announce a federal constitutional right to same-sex marriage, requiring states to recognize same-sex marriage.
Justice Scalia in a bitter dissent in Windsor said that it would be hard to constrain the reasoning of the Supreme Court in Windsor to Section 3 of DOMA, and, according to Justice Scalia, the handwriting is on the wall. Specifically, Justice Scalia opined that the reasoning language in Windsor used to invalidate Section 3 of DOMA will be used by litigants seeking to challenge the constitutionality of state laws that preclude same-sex marriage.
With respect to non-citizens, as I understand it, the Obama administration has issued guidelines intended to implement the Supreme Court’s decision in Windsor, and, under those guidelines, the federal government will treat non-citizens the same as citizens for the purpose of marriage, that is, if a citizen is married to a non-citizen, and they are a same-sex couple, they will be treated the same as a heterosexual couple in a state that permits same-sex marriage.
Editor: There was an editorial in the N.Y. Times on July 18, 2013 written by Alberto Gonzalez, former White House counsel and attorney general and David Strange, an immigration lawyer and adjunct professor at Texas Tech University, who stated that the immigration laws would override the decision and not apply to same-sex couples where one is a non-citizen.
Small: If federal law says that a U.S. citizen married to a non-citizen shall be treated differently for the purposes of benefits, my sense is that the Defense of Marriage Act decision would call that law into question.
Editor: Please share your thoughts regarding the Court’s decision in Fisher v. University of Texas. Did the opinion bring any clarity to how diversity should be applicable in academic admissions decisions?
Small: The Fisher case was brought by a white applicant for admission to the University of Texas who challenged the use by Texas in its admissions decisions relating to race as a factor in the process. The U.S. Court of Appeals for the 5th Circuit had upheld the university’s plan and rejected Ms. Fisher’s challenge, relying on the Supreme Court’s decision in 2003 in a pair of cases, Grutter and Gratz, both of which involved the use of race in admissions at the University of Michigan. When the Supreme Court agreed to hear Fisher, it was thought by many that the conservative majority on the Court might well use Fisher as a vehicle to overrule Grutter and Gratz. In Grutter and Gratz, Justice Sandra Day O’Connor, speaking for the Court, had held that a public university could consistently with the Constitution use race as one factor among many in the admissions process to promote the diversity of the student body and the diversity of the educational experience on campus. Justice Kennedy’s majority opinion for the Court in the Fisher case did not overrule Grutter and Gratz. After Fisher, it is still the law that a public university can, consistent with the Constitution, take race into account as one factor in the admissions decision to promote diversity of the student body and, therefore, contribute to the diversity of ideas and their exchange in a campus setting. Fisher does something that conservative observers felt was necessary, however: it made clear that, after Grutter and Gratz, lower courts must apply the standards of Grutter and Gratz with rigor. The standard of review for the use of race in higher education admissions is strict scrutiny, the highest standard of Constitutional review, which is intended to be very rigorous. Fisher, and others like her, argued that courts such as the 5th Circuit had watered down strict scrutiny and allowed programs like the one at issue in Fisher to withstand constitutional challenge when under a proper application of strict scrutiny, this would not have survived.
The Supreme Court in Fisher did not strike down the University of Texas plan at issue in the case. What the Court said was that the 5th Circuit had been too deferential to the University of Texas and had not properly applied strict scrutiny. It, therefore, remanded the case to the 5th Circuit to evaluate the Texas plan under a proper application of the strict scrutiny constitutional standard. The decision in the case was eight to one. Justice Kennedy wrote the opinion joined by the four conservatives along with three of the liberals on the Court – Justice Breyer, Justice Kagan and Justice Sotomayer. Only Justice Ginsberg dissented. She opined that the Texas plan satisfies the standards of Grutter and Gratz. At the end of the day, Fisher may be much ado about nothing, because it did not overrule Grutter and Gratz – it did not call into question the constitutionality of affirmative action in higher education to promote diversity as a general proposition, but it did make clear that the Supreme Court wants lower courts to evaluate affirmative action plans in higher education with careful scrutiny.
Editor: What major cases are scheduled for the October term that could have significant implications for employment law, healthcare and business law generally?
Small: One that has attracted a lot of attention, even outside of legal circles, is a case called NLRB v. Canning, which involves the scope of the power of the President under Article 2 of the Constitution to appoint officers to federal departments or agencies during recesses of the Senate, so as to avoid the need to have those officers confirmed by the Senate. The U.S. Court of Appeals for the D.C. Circuit in NLRB v. Canning had narrowly construed the scope of the recess appointment’s clause (questioning the construction that Republican and Democratic Presidents alike have given to the term “recess” in Article II of the Constitution) and the President’s power thereunder, holding that the recess appointments that President Obama had made to the NLRB were invalid because they were not made during proper recesses. What this meant in that case was that the action of the NLRB at issue was deemed invalid by the D.C. Circuit because the action had been authorized by board members who, in the D.C. Circuit’s view, were not appointed to their positions in conformity with the Constitution. The D.C. Circuit’s ruling, thus, called into question actions by the NLRB and the actions of other agencies of the government as well where actions had been taken by officials who had been appointed pursuant to recess appointments that exceeded the scope of the D.C. Circuit’s construction of the recess appointments clause.
Additionally, there are three related cases arising out of the notorious Allan Stanford Ponzi scheme. In these cases, two law firms and an insurance broker that were sued by investors in state court for their alleged role in the scheme are arguing that the state suits are barred by the Securities Litigation Uniform Standards Act (SLUSA), which was passed by Congress to make it harder for plaintiffs to bring securities law suits in state courts. The cases are Chadbourne & Parke LLP v. Troice; Proskauer Rose, LLP v. Troice; and Willis of Colorado Inc. v. Troice. In these cases, the Supreme Court will address issues regarding the scope of SLUSA.
I would also add to the list of cases of interest to the business community Heimeshoff v. Hartford Life and Accident Insurance Company and Lexmark v. Static Control Components. The question presented in Heimeshoff is when the statute of limitations should accrue for judicial review of a disability benefit determination decision under the Employment Retirement Income Security Act (ERISA). Lexmark is a case arising under the false advertising provisions of the Lanham Act. In that case, the Supreme Court will address what the proper standard is for determining a party’s standing to bring a false advertising action under the Lanham Act.