Constitutional Law

Supreme Court to Soon Decide Whether Tribal Sovereignty Extends to Employees of Native American Businesses in Tort Actions

TLR BLOG

By Patrick Harty, J.D. Class of 2018 Touro Law Review  Junior Staff Member

On October 22, 2011, a car accident occurred near Norwalk Connecticut. William Clarke, who at the time was acting for his employer, caused the accident.[1] Ordinarily, this case would be solved through a simple tort law analysis.[2] Traditionally, if the employee acted within the ordinary scope of business, the employer would also be liable for the employee’s negligent conduct.[3] However, the employer in this instance is the Mohegan Sun Gaming Authority.[4] This is a business that is owned by the Mohegan Tribe, which is a federally recognized, sovereign Indian nation.[5] Sovereign immunities, which allow Native Americans to govern themselves, have long been recognized in the United States.[6] This immunity creates an assumption that “’until Congress acts, the tribes retain’ their historic sovereign authority.”[7] However, the area involving their employees still remains relatively gray, which is the reason for this Supreme Court case.[8] The victims, in this case, Brian and Michelle Lewis, are challenging the Connecticut Supreme Court’s ruling that the sovereign status given to American Indian tribes extends to its employees.[9] The case before the Supreme Court, which was argued on January 9, 2017, will attempt to answer the question of whether Native American’s sovereign status extends to its employees when they are acting within the scope of employment.

Regarding tribal sovereignty, the extent of the federal government’s power to intrude on sovereignty has remained unclear.[10] There are several competing theories regarding the extent of the federal government to control tribal sovereignty. Some believe that this right was never granted by the United States, but is inherent.[11] If the Supreme Court were to follow this theory, it would be presumed that all those associated by employment with a sovereign Native American tribe would also be granted sovereignty. Another competing theory is that this sovereign right is only”quasi-sovereignty.”[12] This means that the tribe’s sovereignty is within the discretion of the Federal government. The government can change, modify, or eliminate anything regarding the tribe’s sovereign status as it sees fit.[13]

When making their case, Petitioners argued that a case argued before the Second Circuit, Maxwell v. San Diego,[14] which determined that employees acting on behalf of a sovereign tribe may be sued in their individual capacity.[15] The Petitioners Lewis argue that Maxwell is just one example of why sovereign immunity should not extend to its employees.[16] However, this is the minority opinion amongst the Circuits, as no other Circuit had followed the logic behind that ruling.[17] It is also worth mentioning that in Maxwell, the claim was for gross negligence, where in this case the claim is just ordinary negligence.[18]

If the Supreme Court is to rule that employees are no longer granted sovereign immunity when acting within the scope of employment for a recognized tribe, there could be significant ramifications. Tribes would become more reluctant to hire employees, not within the tribe, and many could lose their jobs. However, if the Supreme Court is to rule that employees do maintain sovereign status, how far does this protection extend? This could then be applied to those doing business with Native Americans, and those businesses could potentially take advantage of the ruling in order to take part in deals that would be recognized by the government as illegal. If the Supreme Court is to rule that sovereign status extends to employees working for a recognized tribe, it must do so with specificity in order for this to not extend to other areas of business. Regardless of the outcome, this upcoming Supreme Court decision will have a profound effect on the extent to which Native American Sovereign Immunity extends.

[1] Lewis v. Clarke, 137 S. Ct. 31 (2016).

[2] See generally, Christine W. Young, Respondeat Superior: A Clarification and Broadening of the Current Scope of Employment Test, 30 Santa Clara L. Rev 599 (1990) (Providing a generally understanding of the traditional views of the tort law surrounding employer liability).

[3] Lewis v. Clarke, 137 S. Ct. 31 (2016).

[4] Id.

[5] Id.

[6] See, Alexander Hogan, Protecting Native American Communities by Preserving Sovereign Immunity and Determining the Place of Tribal Businesses in the Federal Bankruptcy Code, 43 Colum. Hum. Rts. L. Rev. 569, 571 (2012) (providing a background into Native America sovereign immunity).

[7] Michigan v. Bay Mills Indian Community, 134 S. Ct 2024, 2027 (2014).

[8] Lewis v. Clarke, 137 S. Ct. 31 (2016).

[9] Id.

[10] Sue Woodrow, Tribal Sovereign Immunity, An Obstacle for Non-Indians doing Business in Indian Country, Federal Reserve Bank of Minneapolis (July 1, 1998), https://www.minneapolisfed.org/publications/community-dividend/tribal-sovereign-immunity-an-obstacle-for-nonindians-doing-business-in-indian-country.

[11] Id.

[12] Id.

[13] Id.

[14] Maxwell v. City of San Diego, 697 F.3d 941 (9th Cir. 2012).

[15] Id. at 955.

[16] Id.

[17] Lewis v. Clarke, 137 S. Ct. 31 (2016).

[18] Id.

THE EXTENT OF WARRANTLESS SEARCHES REGARDING DWI: BREATH OR BLOOD?

TLR BLOG

By Ryan Blitz, J.D. Class of 2017 Touro Law Review Senior Staff Member

The Fourth Amendment was intended to uphold individual’s rights to privacy from unreasonable government searches or seizures.[1] Police officers may not conduct a full search of an individual’s person or belongings without a valid search warrant unless some type of exigency or another exception applies.[2] One may wonder, therefore, why police officers can force drivers to take breathalyzer tests or give blood samples after being suspected of drunk driving. Isn’t this a warrantless search?

Drunk driving kills thousands of people every year, becoming one of the most significant dilemmas facing state governments.[3] In order to remediate this growing problem, all fifty states have adopted “implied consent” laws which deem that all drivers have consented to warrantless tests for alcohol simply by driving on state roads.[4] This past summer, in Birchfield v. North Dakota,[5] the United States Supreme Court determined the legitimacy of these warrantless searches, namely, whether states may criminalize the refusal of a driver, arrested for driving while impaired, to take a test to measure his blood-alcohol level.[6] Writing the opinion for the Court, Justice Samuel Alito expressed that while states may criminalize the refusal to take a breathalyzer test, states may not criminalize refusal to take a blood test, absent a warrant as an ordinary incident of an arrest for driving while impaired.[7]

Historically, exigent circumstances, or circumstances justifying a warrantless search or seizure, only apply if an officer is in hot pursuit of a fleeing suspect, or where police fear the imminent destruction of evidence.[8] In Missouri v. McNeely,[9] the Supreme Court noted that natural metabolism of alcohol in the bloodstream does not present an exigency that justifies an exception to the Fourth Amendment’s warrant requirement for blood-testing.[10] While metabolism alone does not create an exigency, officers may still conduct such a search if reasonable under the totality of the circumstances. In order to determine the reasonableness of such searches, the Court applied the common balancing test of weighing the government’s interest in public safety versus the individual’s interest in his or her right to privacy.[11]

The same balancing test was applied to both breathalyzer and blood tests, yet the Court reached different outcomes. It appears that the reason for this is invasiveness. Breathalyzer tests, in general, include negligible physical intrusion.[12] They do not require piercing the skin, there is little likelihood of any enhanced embarrassment from that of any similar arrest, and unlike DNA samples, breathalyzer tests leave no biological sample in the government’s possession.[13]

Blood tests, on the other hand, are physically intrusive as needles must be inserted into the suspect’s skin.[14] This sample can may remain in the government’s possession, and reveal much more about an individual than simply determining the amount of alcohol in their blood, thus potentially increasing the anxiety of the individual.[15] Therefore, the Court determined that the invasiveness of a blood test outweighs the interest of the government, especially when there are reliable and less intrusive alternatives to determine one’s blood alcohol content. [16]

The impact of this decision will be felt differently depending on the jurisdiction.[17] For example, law enforcement in various Pennsylvania counties has exclusively relied on blood testing in DWI cases.[18] District attorneys in these cases will need to rely on other evidence of the impairment or the case may be dismissed.[19] While this case is a victory for privacy rights, the amount of DWI arrests is unlikely to change. As Justice Sotomayor points out in her concurrence in Birchfield, breathalyzers are a reliable alternative to blood tests, and the time it takes to obtain a search warrant over the phone is typically quicker than it takes to conduct the breath test.[20]

[1] U.S. Const. amend. IV.

[2] Welsh v. Wisconsin, 466 U.S. 740 (1984).

[3]Birchfield v. N. Dakota, 136 S. Ct. 2160, 2167 (2016).

[4] Id.

[5] 136 S. Ct. 2160 (2016).

[6] Id. at 2172.

[7] Id. at 2183-84.

[8] Welsh, 466 U.S. at 740.

[9] 133 S. Ct. 1552 (2013).

[10] Id.

[11] Birchfield, at 2176.

[12] Birchfield, at 2177.

[13] Id.

[14] Id. at 2178.

[15] Id.

[16] Id.

[17] Steve Marroni, Supreme Court ruling could reduce penalties in some DUI cases, Pennlive (June 30, 2016), http://www.pennlive.com/news/2016/06/supreme_court_dui_pennsylvania.html.

[18] Id.

[19] Id.

[20] Birchfield, 136 S. Ct. at 2191-92 (Sotomayor J., concurring); see also Sherry F. Colb, Birchfield v. North Dakota; An Acceptable Compromise, VERDICT, (July 6, 2016), http://verdict.justicia.com/2016/07/06/birchfield-v-northdakota-acceptable-compromise.

The Doctrine of Conceptual Separability

TLR BLOG

by Michael J. Borger, J.D. Class of 2018 Touro Law Review Junior Staff Member

Whenever law school students and legal scholars have the opportunity to discuss the most intriguing intellectual property issues of the day, the typical conversation will likely focus on the fascinating patent infringement litigation between Samsung Electronics, Co. and Apple, Inc.,[1] two companies that have revolutionized and dominated the technology sector for decades. Considering that these high-stakes, billion dollar lawsuits symbolize the cutting edge field that intellectual property law has developed into— a field that many future attorneys aspire to become a part of—it is not surprising that these discussions take place.[2] That being said, even without a formal scientific study, it might be assumed that most individuals intrigued by the complexities and excitement of intellectual property law would not dedicate time to observe the current copyright litigation originating in the heart of Memphis, Tennessee.[3]

Over the last decade, copyright litigation has frequently focused on the development of the fair use doctrine in areas such as the music recording and film industries.[4] However, an affirmative expansion of the seemingly limited applications of copyright law to artistic aspects of useful articles could bestow significant advantages on designers and businesses that seek protection for their innovative products and goods sold in a variety of markets throughout the United States.[5] As explained below, depending on how the Supreme Court rules in Varsity Brands, Inc. v. Star Athletic, LLC,[6] the “Birthplace of Rock ‘n’ Roll” might soon become the city that revived copyright law, making this area of intellectual property relevant to virtually every single manufacturing and enterprising industry.[7]

In Star Athletica, the main controversy presented to the District Court for the Western District of Tennessee involved a copyright infringement claim brought on by Varsity Brands, a manufacturer and seller of cheerleading uniforms.[8] To prove that Star Athletica, a competing manufacturer of athletic apparel, infringed on Varsity Brand’s copyrighted uniform designs, Varsity Brands needed to show that it owned valid copyrights to the designs and that Star Athletica copied protected elements of these designs.[9] Varsity Brands not only submitted evidence to the court that five of its best-selling uniform designs had received registered protection from the Copyright Office, but it also showed that Star Athletica reproduced exact copies of these designs and sold and distributed them on its own website for profit.[10] Even with this strong evidence supporting its copyright infringement claim, Varsity Brands still faced significant challenges as it struggled to convince the District Court that its design copyrights were actually valid.[11]

Unlike patent law which seeks to grant individuals the exclusive rights to their novel inventions and discoveries, copyright law affords legal protection to authors and designers who create works of artistic expression.[12] Since copyright law does not extend protection to the utilitarian aspects of a designer’s creation—the actual cheerleading uniform in this instance—one of the most unique and challenging problems in intellectual property law is the judicial task of separating the artistic features of a design that are mixed together and intertwined with other non-copyrightable utilitarian features.[13] This process is critical in determining which features of a design can in fact be given protection.[14] When these artistic elements are not capable of being physically separated from the article,[15] courts use what is known as the doctrine of conceptual separability to guide them in the process.[16] If it is determined that the artistic features are not separable from the useful article, these features are classified as “useful articles” and copyright protection will not be granted.[17]

Congress grants copyright certificate holders with a legal presumption that their copyright is valid.[18] To prevail in Varsity Brands, Inc. v. Star Athletica, LLC,[19] Star Athletica needed to prove that the Copyright Office erred in granting Varsity Brands copyright protection for the designs of their cheerleading uniforms, specifically the “lines, patterns, and chevrons” which were featured on them.[20] To establish that the five copyrights were issued in error, Star Athletica asserted that the copyrights issued to Varsity Brands were not valid because the creative features that Varsity Brands sought protection for were neither physically nor conceptually separable from the utilitarian cheerleading uniform.[21] The District Court agreed with Star Athletica and granted its motion for summary judgment on the copyright infringement claims.[22] The Court of Appeals for the Sixth Circuit reversed on the ground that the creative features affixed to the cheerleading uniform were conceptually separable and therefore capable of receiving protection.[23]

This case exemplifies how challenging the application of the doctrine of conceptual separability has become since the Federal Circuit Courts have articulated more than nine tests to determine whether artistic features are capable of being conceptually separated from the utilitarian article they are attached to.[24] To make matters even more complicated, courts within the same circuit regularly apply different variations of the same test which often leads to even more confusion and inconsistency in these high-stakes copyright litigations.[25] The procedural history discussed below will shed some light on the complexities of this type of analysis.

Varsity Brands originally crafted its entire legal argument based on the Seventh Circuit’s “aesthetic influence test” which looks at whether the artistic elements of the object were designed independently of the utilitarian function of the article to which it is affixed.[26] It argued that because its uniform design team essentially has free reign to create and is not required to adapt its designs to meet the needs of production, it satisfied this test and protection should have been granted.[27] The District Court rejected this argument and adopted the Fifth Circuit’s version of the “marketability test” for conceptual separability which looks at whether the utilitarian object is still likely to be marketable once the artistic elements are physically or conceptually removed from it.[28] According to the court, once the creative design elements were conceptually removed from the uniform—the braided stripes and colored chevrons—the article lost its “cheerleading-uniform-ness” and would not be marketable to any significant segment of the community.[29]

The Court of Appeals for the Sixth Circuit reversed and subsequently rejected both of the previously mentioned tests.[30] In ruling in favor of Varsity Brands, the court gave substantial deference to the Copyright Office’s decision to issue registered copyrights to Varsity Brands and adopted a “hybrid” separability test which featured different elements from a variety of separability tests used throughout all of the Circuit Courts.[31] Specifically, it adopted elements of the Second Circuit’s “objectively necessary” test which was first articulated in Carol Barnhart, Inc. v. Economy Cover Corp.,[32] and considers whether the artistic features of the design are merely ornamental and not necessary to the performance of the utilitarian article itself.[33] Interestingly enough, the Sixth Circuit looked favorably upon Judge Newman’s dissenting opinion in Carol Barnhart as well, adopting elements of his proposed “ordinary observer” test which looks at whether a reasonable observer of the article is capable of conceptualizing two separate products “side by side” of each other—the utilitarian object and the artistic elements.[34]

The Supreme Court is expected to articulate the appropriate test lower courts should use to determine whether an artistic feature is conceptually separable from the useful article that it is attached to and thus protectable under copyright law.[35] This decision is exceptionally critical because depending on which test the Supreme Court adopts as the baseline standard, the effect on virtually every single manufacturing industry could be significant.

There is no question that if a business owns the exclusive rights to a design or product, that business will have a tremendous advantage over its competitors operating in the same market space. Another important consideration is that unlike patent protection which is generally very expensive to obtain and only grants exclusive rights to its holder for a relatively short period of time, copyright protection grants exclusive rights to the holder for the life of the creator plus seventy years.[36] In many instances, if the court had applied a different conceptual separability test from another circuit, it is possible that drastically different results would have occurred.[37]

For instance, in Jovani Fashion, Ltd. v. Fiesta Fashions,[38] the special arrangement of sequins and decorative beads incorporated in the design of one of Jovani’s best-selling prom dresses was denied copyright protection from the Second Circuit because it failed the “design process test” which requires the design elements to “reflect the designer’s artistic judgment exercised independently of functional influence.”[39] This decision demonstrates the substantial impact the Supreme Court’s holding in Varsity Brands could have on the entire fashion industry. Perhaps if the “ordinary observer” test was applied in this case, a test which looks at the effect of the design on a reasonable observer and asks whether the observer can conceptualize two different products, it is possible that Jovani would have received copyright protection for the dress and could have prevented other dress designers from selling their highly popular and profitable design.[40]

Although Silicon Valley tech giants frequently find themselves involved in the most highly publicized and exciting patent litigation, it is important for law school students to observe other areas of developing intellectual property law as well. A simple dispute arising between two competing cheerleader uniform manufacturers over colored stripes and chevrons has the capability of not only impacting virtually every manufacturing industry, but also shaping the future of copyright litigation in the United States. On October 31, 2016, the Supreme Court will hear oral arguments from both Varsity Brands and Star Athletica. It has yet to be determined when a decision will be handed down.

[1]Apple, Inc. v. Samsung Electronics Co., Ltd., 678 F.3d 1314 (Fed. Cir. 2012).

[2] Laura L. Pollander, “First-Inventor-To-File” May Prove Fatal to Patent Rights Upon the Death of an Inventor, 27 Quinnipiac Prob. L.J. 186, 186-92 (2014).

[3] Varsity Brands, Inc. v. Star Athletica, LLC, 799 F3d 468, 481 (6th Cir. 2015) (contemplating the highly debated question as to which of the nine tests for conceptual separability tests existing among the Circuit Courts is the appropriate test for determining whether artistic elements and features of a design can be conceptually separated from the useful article that the features are attached to).

[4] Patricia Aufderheide & Peter Jaszi, Reclaiming Fair Use (2011).

[5] Universal Furniture Int’l, Inc., v. Collezione Europa USA, Inc., 618 F.3d 417 (4th Cir. 2010) (deciding whether a furniture manufacturer could receive copyright protection for designs carved into its products); Pivot Point Int’l, Inc., v. Charlene Prods., Inc., 372 F.3d 913, 915 (7th Cir. 2004) (deciding whether a manufacturer of mannequin heads for cosmetic and hair stylists could receive copyright protection for the unique design elements of its products); Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989, 990 (2d Cir. 1980) (deciding whether a manufacturer of western belt buckles could receive copyright protection for its designs).

[6] Varsity Brands, 799 F.3d at 481, cert. granted, 136 S. Ct. 182 (U.S. May 2, 2016) (No. 15-866).

[7] Memphis, http://www.memphistravel.com (last visited Oct. 8, 2016); see also, supra, note 5 (listing the variety of industries and markets seeking design protection via copyright law).

[8] Varsity Brands, Inc. v. Star Athletica, LLC, No. 10-2508, 2014 WL 819422 at *2 (W.D. Tenn. Mar. 1, 2014).

[9] Id. at *3.

[10] Id. at *2.

[11] Id. at *3-4.

[12] Marshall A. Leaffer, Understanding Copyright Law § 3.11 (Matthew Bender, 6th ed. 2014).

[13] Paul Goldstein, 1 Goldstein on Copyright § 2.5.3, at 2:67 (3d ed. 2013) (“Of the many fine lines that run through the Copyright Act, none is more troublesome than the line between protectable [PGS] works and unprotectible utilitarian elements of useful articles”).

[14] Goldstein, supra, note 12.

[15] Compendium of U.S. Copyright Office Practices § 924.2 (A) (3d ed. 2014) (“Physical separability means that the useful article contains pictorial, graphic, or sculptural features that can be physically separated from the article by ordinary means while leaving the utilitarian aspects of the article intact… [such as] a sufficiently creative decorative hood ornament on an automobile.”).

[16] Compendium of U.S. Copyright Office Practices § 924.2 (B) (3d ed. 2014) (“Conceptual separability means that a feature of the useful article is clearly recognizable as a pictorial, graphic, or sculptural work, notwithstanding the fact that it cannot be physically separated from the article by ordinary means”).

[17] Gay Toys, Inc. v. Buddy L. Corp., 703 F.2d 970, 972 (6th Cir. 1983) (“‘[U]seful articles’ are not generally copyrightable, although certain features of ‘useful articles’ may be copyrighted separately”).

[18] 17 U.S.C. § 410 (C) (2012) (stating that a certificate of registration “constitute[s] prima facie evidence of the validity of the copyright and of the facts stated in the certificate”).

[19] Varsity Brands, Inc. v. Star Athletica, LLC, No. 10-2508, 2014 WL 819422 at *2 (W.D. Tenn. Mar. 1, 2014).

[20] Id. at *9.

[21] Defendant’s Memorandum of Law in Opposition of Plaintiff’s Motion to Dismiss at 8, No. 10-cv-02508-BBD-cgc, Varsity Brands, Inc. v. Star Athletica, LLC, No. 10-2508, 2014 WL 819422 at *1 (W.D. Tenn. Mar. 1, 2014).

[22] Varsity Brands, Inc. v. Star Athletica, LLC, No. 10-2508, 2014 WL 819422 at *10 (W.D. Tenn. Mar. 1, 2014).

[23] Varsity, 799 F.3d at 492.

[24] Id. at 484-85.

[25] Id. at 485 (“In recent years, our colleagues on the Second and Fourth Circuits have used multiple of the above-listed [conceptual separability] approaches in the same case.”).

[26] Varsity Brands, Inc. v. Star Athletica, LLC, No. 10-2508, 2014 WL 819422 at *7 (W.D. Tenn. Mar. 1, 2014).

[27] Id.

[28] Id. at *1.

[29] Id. at *1, *8.

[30] Varsity, 799 F.3d at 487, 494.

[31] Id. at 487.

[32] 773 F.2d 411, 419 (2d Cir. 1985).

[33] Varsity, 799 F.3d at 487, 494

[34] Carol Barnhart, 799 F.3d at 421-22 (Newman, J., dissenting).

[35] Varsity Brands, 799 F.3d at 481, cert. granted, 136 S. Ct. 182 (U.S. May 2, 2016) (No. 15-866).

[36] 17 U.S.C. § 302(a).

[37] Appellants’ Reply Brief at 5, Varsity Brands, Inc. v. Star Athletica, LLC, 799 F.3d 468 (No. 14-5237).

[38] 500 Fed. Appx. 42 (2d Cir. 2012).

[39] Id. at 45; see also, Brandir Intern., Inc. v. Cascade Pacific Lumber Co., 834 F.2d 1142, 1148 (2d Cir. 1987).

[40] Carol Barnhart, 799 F.3d at 421-22 (Newman, J., dissenting).

Peremptory Challenges – How the Supreme Court’s Decision in Foster v. Chatman Revitalized Batson Claims

TLR BLOG

by Brandon Abbatiello, J.D. Class of 2017 Touro Law Review Senior Staff Member

The Sixth Amendment guarantees criminal defendants the right to have their case decided by an impartial jury[1]. During jury selection, attorneys for each side are granted a varying number of peremptory challenges. Peremptory challenges, as opposed to challenges for cause, allow attorneys to strike potential jurors without providing a reason to the court. This common-law practice dates back to thirteenth century England.[2] As a result of this long tradition, peremptory challenges are currently alive and well in all fifty states as well as at the federal level[3] despite their potential to be used as a vehicle for the practice of discrimination unto protected classes. The problem with peremptory challenges is the danger of pretext, which is the danger that attorneys will use their challenges in ways that violate the Fourteenth Amendment’s equal protection clause because they don’t have to give a reason for why they struck a particular juror.

In Batson v. Kentucky[4], the Supreme Court held that the equal protection clause of the Fourteenth Amendment is violated when attorneys use their peremptory challenges to remove jurors on the basis of race.[5] In Batson, the prosecutor used his peremptory challenges to strike all four black prospective jurors.[6] The Court held that a defendant may make a prima facie case of discrimination by establishing that (1) he/she is a member of a racial group, (2) the prosecutor has used peremptory challenges to exclude jurors of the same race, (3) and a reasonable inference is made showing that the peremptory challenges were used in order to exclude jurors on account of their race.[7] The burden then shifts to the state to provide a race-neutral reason for each of its peremptory challenges.[8]

On its face, Batson appeared to be a monumental civil rights decision and a powerful vehicle to eradicate racism from the jury selection process. However, on a practical level, it was all too easy to provide race-neutral explanations for each peremptory challenge. Attorneys could get around Batson so long as they did not explicitly identify race as the determining factor of their challenge. In recognition of this troublesome phenomenon, the Supreme Court heard a recent case, Foster v. Chatman, which asked whether the prosecutor’s race-neutral reasons for peremptory challenges were pre-textual and therefore a violation of the Fourteenth Amendment. [9]

The facts in Foster are similar to those in Batson. A prosecutor struck all four black jurors using peremptory challenges.[10] Both parties agreed that the first two prongs under Batson were satisfied.[11] As for the third prong, the prosecution did provide race-neutral reasons for the strikes. For example, the prosecutor claimed to strike one of the black prospective jurors, Garret, because he was divorced.[12] However, he declined to strike three of four other prospective white jurors who were also divorced.[13] Similarly, another black prospective juror, Hood, was struck because his son’s age was similar to the defendant’s age.[14] Yet the prosecutor accepted another white juror who also had a son whose age was close to that of the defendant.[15] Furthermore, when the prosecutor asked Hood if the defendant’s age would be a factor for him in sentencing, he responded “None whatsoever.”[16] The Court concluded that the prosecutor’s “race-neutral” explanations were, in fact, pre-textual and therefore the prosecutor engaged in purposeful discrimination on the basis of race.[17]

Foster, is a landmark decision because it gives teeth to the third prong of the Batson test by demanding that judges evaluate race-neutral explanations proffered in defense of a particular peremptory challenge in light of the record as a whole rather than simply taking the explanation at face value. Justice Thomas offered a strong dissent, arguing that since Foster’s Batson claim is ultimately a credibility determination, the Court should have given great deference to the trial court’s findings.[18] But deference to the lower court, which did not scrutinize the race-neutral explanations, would essentially leave Batson the way it has been since the decision came down: a well-intentioned application of the equal protection doctrine to the jury selection process with too low a standard to effectively safeguard defendants from an impartial jury. I agree with the majority that closer judicial scrutiny of the peremptory challenge process is warranted given the legitimate and unfortunately all too prevalent risk of a Sixth or Fourteenth Amendment violation unto criminal defendants.

[1] U.S. Const. amend. VI § 3.

[2] John Proffatt, A Treatise on Trial By Jury, Including Questions of Law and Fact § 1-10 (Rothman 1986).

[3] Jere W. Morehad, When a Peremptory Challenge is No Longer Peremptory: Batson’s Unfortunate Failure to Eradicate Invidious Discrimination From Jury Selection, 42 DePaul L. Rev. 625, 628 (1994)

[4] Batson v. Kentucky, 476 U.S. 79 (1986).

[5] Id. at 86.

[6] Id. at 83.

[7] Id. at 94-97.

[8] Id. at 97.

[9] Foster v. Chatman, 136 S. Ct. 1737 (2016).

[10] Id. at 1747

[11] Id.

[12] Id. at 1750

[13] Id.

[14] Chatman, 136 S. Ct. at 1751.

[15] Id. at 1752.

[16] Id.

[17] Id. at 1755 (“Two peremptory strikes on the basis of race are two more than the Constitution allows.”).

[18] Batson, 136 S. Ct. at 1765 (Thomas, J., dissenting).

A Women’s Right to Choose is Reaffirmed Amidst Political Pushback

TLR BLOG

by Christina Lamm, J.D. Class of 2017 Touro Law Review Senior Staff Member

On June 27, 2016, the Supreme Court handed down a 5-3 decision in a highly publicized case that by its essence held the future of a woman’s right to choose in the balance.[1] This decision overturned the Fifth Circuit’s reversal of a Texas court declaring unconstitutional two provisions of the Texas legislatures controversial House Bill 2.[2] These particular provisions required that the doctor performing the abortion have admitting privileges at a hospital that is within thirty miles of the abortion clinic, and that the individual clinics have at least the standards that are required for ambulatory surgical centers.[3]

The effect of these provisions in Texas resulted in a drop in the number of abortion facilities from around forty to about twenty with just the admitting privilege provision in effect; the number of clinics would go down to seven or eight if the other provision were to take effect.[4] Needless to say, if these provisions had been allowed to stand, achieving an abortion would be a difficult task for some.

In the 1973 landmark case of Roe v. Wade, the Court enumerated the right of a woman to choose to have a pre-viability abortion.[5] Since then, states have used many tactics to try and limit the ability of a woman to exercise this right.[6] In 1992, the Court refined the standard and clarified just how far a state can go in its regulations of abortion in Planned Parenthood of Southeastern Pennsylvania v. Casey.[7] The Supreme Court decided that the undue burden standard should apply in abortion cases, which requires that no substantial obstacle should be placed “in the path of a woman seeking an abortion before the fetus attains viability.”[8] Basically, a state has the right to try and persuade a woman in making her decision, it has the right to place regulations on how and when a woman may have an abortion, but a state cannot substantially intervene with a women exercising her right to choose.[9] The burden must also be looked at in light of the benefits conferred from the laws.[10] Protecting the life of an unborn and protecting the health of the mother are legitimate state interests; they can, and have, led to restrictions on abortion being held constitutional.[11] The stated benefits of the restrictions must further those legitimate state interests; the benefits also need more than just lip-service. In order to be given weight when determining if an undue burden exits, there must be actual evidence that the benefits are real.[12]

In Hellerstedt, Texas argued that the restrictions on abortions were enacted to serve the legitimate interest of ensuring the safety of the women seeking abortions, but upon evidence the district court concluded that there was “no significant health-related problem that the new law helped to cure.”[13] A New York Times article quoted the former governor of Texas as saying that “the passage of the law brought us one step closer to an ideal world where there was no abortion”.[14] If that was anywhere near the true intention behind the law, it is far across the line constitutionality. It also highlights the very significant risk of laws, such as the ones discussed above, being enacted under the guise of protecting women’s health while in reality the purpose is to restrict abortion.[15]

The Supreme Court in Hellerstedt made clear that the district court had leave to review the evidence before it and did not have to defer to the legislatures stated intentions for enacting the law.[16] Justice Ginsberg, in her concurrence, went as far as to say that these laws could actually have the opposite effect of the legislatures stated intentions by causing more women to have to resort to procuring unlicensed abortions which would greatly endanger their health and safety.[17]

This decision was a definite win for pro-choice activists across the nation as many states have enacted similar laws and the state courts will have to abide by the decision of the Supreme Court.[18] This decision will likely serve to inspire pro-life activists to become even more creative when designing ways to restrict abortions thereby forcing abortion into the spotlight during the upcoming election in November, causing a polarization on both sides of the debate.[19]

[1] Whole Woman’s Health v. Hellerstedt, 136 S.Ct. 2292 (2016) (hereinafter “Hellerstedt”).

[2] See Whole Woman’s Health v. Cole, 790 F.3d 563 (5th Cir. 2015); Whole Woman’s Health v. Lakey, 46 F. Supp. 3d 673 (W.D. Tex. 2014).

[3] Hellerstedt at 2296.

[4] Id.

[5] Roe v. Wade, 410 U.S. 113, 163 (1973).

[6] Dawn Johnson, State Court Protection of Reproductive Rights: The Past, the Perils, and the Promise, 29 Colum. J. Gender & L. 41, 44(2015).

[7] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).

[8] Id. at 837.

[9] Id, at 877.

[10] Id. at 887-898.

[11] Id. at 882-883.

[12] Hellerstedt at 2298.

[13] Id. at 2311.

[14] Adam Liptak, Supreme Court Strikes Down Texas Abortion Restrictions, The New York Times (June 27, 2016), http://www.nytimes.com/2016/06/28/us/supreme-court-texas-abortion.html (last visited September 12, 2016).

[15] Brief of Constitutional Law Scholars Ashutosh Bhagwat, Lee Bollinger, et al., Amici Curiae Supporting Petitioners, Whole Woman’s Health v. Cole, 790 F.3d 563 (5th Cir. 2015).

[16] Hellerstedt at 2310.

[17] Hellerstedt at 2321.

[18] Pete Williams, Supreme Court Strikes Down Strict Texas Abortion Law, NBC News (June 27, 2016, 2:07 PM) http://www.nbcnews.com/news/us-news/supreme-court-strikes-down-strict-abortion-law-n583001 (last visited September 12, 2016).

[19] Supra note 12, http://www.nytimes.com/2016/06/28/us/supreme-court-texas-abortion.html.