Showing no signs of a Kentucky Derby hangover (or any follow-on litigation, at least not yet), last week the court wrapped up arguments during the second half of its May sitting. Your quick recap:
A rational basis for suspended licenses – In a blow to con-law professors and indigent drivers, a divided panel held in Fowler v. Benson that Michigan may suspend drivers licenses for unpaid fines. The trial court had granted a class of low-income Michiganders an injunction barring the state from suspending licenses without providing an “ability to pay” hearing and alternative payment plans.
Judge Alice Batchelder’s opinion, joined by Judge Amul Thapar, rejected the notion that state law recognizes a property interest in an indigency hearing. The majority held that Michigan’s policy, by incentivizing payment, survives “rational-basis review” (a notoriously low hurdle) under the Due Process Clause.
Judge Bernice Donald, in full-throated dissent (“I dissent!”), distinguished the “protected property interest in the continued possession of a driver’s license” from the procedures offered to protect that interest. Her opinion also questioned the “likel[ihood] that Michigan will recover [its] costs”—asking how those too poor to pay could drive to work on a suspended license and earn the money they owed.
Largely unmentioned, but hovering over these dueling Due Process opinions, is the Supreme Court’s decision decades ago—in San Antonio Independent School District v. Rodriguez (1973)—that wealth is not a suspect classification triggering strict scrutiny under the Equal Protection Clause.
Cat’s paw liability under Title IX – On Thursday, a Sixth Circuit panel heard oral argument in Bose v. Bea, a Title IX appeal arising from a Rhodes College student’s expulsion for an honor code violation
The student alleges she declined the sexual advances of a professor, who then retaliated by framing her for cheating on a quiz. The Rhodes College Honor Council expelled the student, and she sued for sex discrimination under Title IX.
On summary judgment, the district court held that respondeat superior and constructive notice could not link a professor’s discriminatory motive to the college’s adverse action. Judges Eugene Siler, Joan Larsen, and John Nalbandian will now decide whether and how the “cat’s paw theory” (and Tennessee’s judicial-privilege rule) apply to private disciplinary proceedings. This marks a return to Title IX for the court, which last year held in a closely watched decision that a right to cross-examination applies in university disciplinary hearings.
Who decides the district lines? The next partisan gerrymandering fight is on its way from the Southern District of Ohio to the Supreme Court. On May 3rd, a three-judge panel unanimously held that Ohio’s congressional district map is an unconstitutional partisan gerrymander. The court held that the map—which splits 23 counties and 73 cities—“sacrifices traditional redistricting principles in order to maximize pro-Republican partisan advantage.”
The panel, which included Circuit Judge Karen Nelson Moore and District Judges Black and Watson, ordered the Ohio General Assembly to draw a new map by June 14th. But Ohio Attorney General Dave Yost has filed a direct appeal (not a cert petition; Supreme Court review is mandatory) with the U.S. Supreme Court. Ohio’s request to stay the redistricting deadline is awaiting a response.
Earlier this term, the Supreme Court heard argument in related gerrymandering cases from North Carolina and Maryland. The Supreme Court should render a decision in these cases before July. Though just last year it managed to back away—twice—from Justice Frankfurter’s “political thicket,” by avoiding a substantive decision in two argued cases challenging Wisconsin and Maryland maps.
Before Justice Kavanaugh’s arrival, his former boss had written “[t]hat a workable standard for measuring a gerrymander’s burden on representational rights has not yet emerged does not mean that none will emerge in the future.” Rather oracular, and totally vexing for those drawing map lines and practicing political law. Ohio and the plaintiffs soon should (might?) learn whether partisan-gerrymandering claims are justiciable. And if so—which is a very big “if”—how partisan is too partisan under the Constitution.