Wednesday, April 18, 2007

Today at the Supreme Court: Brentwood and Partial Birth Abortion

If you have never been to scotusblog (and if the Supreme Court is interesting to you at all) you should check it out. I am amazing at how sharp these men and women are, and am humbled to learn that much of the analysis is done by people no older than I am. On the other hand, I can take pride in the fact that I almost certainly read more Calvin and Hobbes than they do.

Anyway, two things of interest are happening at the Court today. The first involves a subject dear to many of my Nashville friends' hearts, Brentwood Academy. Brentwood was sued by a state high school sports association because the association objected to some of Brentwood's recruiting practices: Brentwood gave free tickets to prospective athletes and sent them personal letters.

This gets really complicated. I'll do my best. I will try to use a "good for Brentwood / bad for Brentwood" mode of analysis.

Brentwood argues that its practices are protected as speech under the First Amendment and that the association is so similar and closely associated with local government that it should be considered an arm of the government (a "state actor"). Governments are held to much higher standards than private parties are, and Brentwood was able to convince the Court several years ago that the association is a state actor. All of this is good for Brentwood.

However, on the other side, the association argues that it is not a state actor, that Brentwood consented to the association's rules when it voluntarily joined the association, and that the association's conduct should not be too carefully scrutinized by the Court. (The Court has developed three levels of scrutiny which is uses to analyze cases. I won't explain them, but if the Court uses the easy one, the government wins. If it uses the hard one, the government loses. The middle one can go either way, but the government loses more than it wins. The association is arguing for the middle level, intermediate scrutiny). A couple of years ago, the Supreme Court had the chance to require the hardest level of scrutiny in the case, but it did not do so. All of this is bad for Brentwood.

There are four possible outcomes as I see it. The most simple is that the Court affirm the lower decision and Brentwood, which won at the first appellate level, wins. Alternatively, the Court could find some error in the appellate or trial courts and reverse, making Brentwood lose the battle but not the war. Let's call these the "minimal" solutions because they are pretty simple and only confined to the narrow issues.

However, the Supreme Court sometimes likes to rock the boat. If it chooses to revisit either of its earlier two decisions in this case, there could be some major changes. If it decides that the association is not a state actor, Brentwood (and lots of private schools) will lose something they think they are entitled to: some degree of protection from state schools in extracurricular activities. Alternatively, if the Court decides that strict scrutiny should apply to the association's conduct, Brentwood and the private schools win big time. To understand how big a deal this is, consider this fact: the government of the United States of America has intervened in this case to argue that intermediate scrutiny should apply.

I hope this clears things up a little for those of you who care. The Court should issue its opinion in June. I will hold on to my legal opinions for the time being, but in my heart you can hear, if you listen carefully, Go B.A. Eagles.

In much more serious news, the Court surprised a lot of people by upholding (5-4) the ban on partial birth abortion which was passed by Congress in 2003. The decision is, I think, the first ever to allow an across-the-board prohibition of an abortion procedure. I will read the opinion and talk about it later. I am sure you'll be hearing about it...

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