Ginsburg Overturns 4th Circuit: Kimbrough v. United States

If you think only published opinions can be scrutinized by the U.S. Supreme Court, you will find this opinion by Justice Ginsburg of interest. The underlying Fourth Circuit Court of Appeals opinion is unpublished but can be found in the Federal Appendix, 174 F. App’x 798. Here, Justice Ginsburg overturns the court below and clears up confusion over sentencing guidelines for crack cocaine and other drugs. Tom Michener, graduating in May, wrote the summary of this case.

You can listen to Justice Ginsburg announce the majority opinion (check out the majority opinion jabot she wears in the law library lobby display) here: https://apps.oyez.org/player/#/roberts2/opinion_announcement_audio/22651.

Kimbrough v. United States, 552 U.S. 85 (2007)

Summary:

In 1986, during the Reagan administration’s anti-drug initiative, Congress enacted a federal sentencing policy of punishing crimes involving crack cocaine at a 100-to-1 ratio compared to crimes involving powder cocaine.[1] Using that ratio, the U.S. Sentencing Guidelines prescribed the same sentence for a defendant convicted of dealing 500 grams of powder cocaine as they did for a defendant convicted of dealing only five grams of crack cocaine.[2]

In 2004, Defendant Derrick Kimbrough pleaded guilty to various crack and powder cocaine possession offenses. Under the relevant statutes, Kimbrough was subject to 15 years to life in prison. To determine the appropriate sentence within that range, the district court judge used the Guidelines, a formulaic system to determine a sentence in all federal crimes. The Guidelines dictated a range of 19 to 22.5 years in prison due, in part, to the 100-1 ratio.

The judge, however, determined that a sentence in that range would have been “greater than necessary” to accomplish the purposes of sentencing as set out in the sentencing guidelines. The judge also noted that the case exemplified the “disproportionate and unjust effect that crack cocaine guidelines have in sentencing” and sentenced Kimbrough to 15 years, the minimum. In 2006, the Court of Appeals for the Fourth Circuit reversed, citing circuit precedent which stated that “a sentence that is outside the guidelines range is per se unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder cocaine offenses.” United States v. Kimbrough, 174 F. App’x 798, 799 (4th Cir. 2006) (citing United States v. Eura, 440 F.3d 625 (4th Cir.2006)).

As enacted, the Guidelines were mandatory. In 2005, about three years before Kimbrough and a year before the Court of Appeals’ decision in the case, however, the Court decided United States v. Booker, 543 U.S. 220 (2005). Booker excised the provision of the Guidelines requiring sentencing courts to impose a sentence within the applicable Guidelines range and rendered the Guidelines “effectively advisory.” There remained some ambiguity as to whether the crack/powder disparity adopted in the Guidelines had been rendered advisory by Booker, ambiguity that created disagreement between various courts of appeals. The ambiguity was cleared up by Justice Ruth Bader-Ginsburg’s majority opinion in Kimbrough.

After reviewing the Government’s various arguments, Justice Ginsburg wrote that none of the arguments “persuades us to hold the crack/powder ratio untouchable by sentencing courts.” She observed that the sentencing judge properly calculated the sentence under the Guidelines and that the judge took note of the criticism by the U.S. Sentencing Commission of the 100-to-1 ratio. She also observed that the judge did not purport to establish a ratio of his own. Rather, the district court “appropriately framed its final determination in line with [a Guideline provision’s] overarching instruction to ‘impose a sentence sufficient, but not greater than necessary,’ to accomplish the sentencing goals . . . .”

Thus, the sentence was reasonable, the sentencing judge did not abuse his discretion, and the opinion of the Court of Appeals was reversed.

[1] https://www.oyez.org/cases/2007/06-6330

[2] https://www.oyez.org/cases/2007/06-6330

Ginsburg Dissent: Gonzales v. Carhart Case Summary

Ginsburg Dissent: Gonzales v. Carhart, 550 U.S. 129 (2007)

The Supreme Court’s position on abortion has evolved and led to different outcomes over the years. In 2007, the Court heard Gonzales v. Carhart, a clash of morality, medicine, privacy, and women’s rights in abortions. In this summary of the case, Franklin Fegurgur, a 2L, highlights Justice Ginsburg’s dissent in which she voiced her concern over the precedents already established in Roe and Casey in which the Court said that “liberty finds no refuge in the jurisprudence of doubt.” Listen to Justice Ginsburg announce her dissent at https://apps.oyez.org/player/#/roberts2/opinion_announcement_audio/22038.

Facts:

In Gonzales, the Court considers the validity of the Partial-Birth Abortion Ban Act of 2003. Plaintiffs included Dr. Leroy Carhart as well as other physicians who performed late-term abortions and wanted the Court to stop the Act from going into effect. In 2003, Congress passed the Partial-Birth Abortion Ban Act in response to the Stenberg v. Carhart decision where the Court held that the Nebraska’s partial birth abortion statute violated the Constitution in the aftermath of Planned Parenthood v. Casey and Roe v. Wade. As in earlier decisions, the Court discussed the abortion procedures as the Act sought to regulate a manner of terminating fetal life.

One method the Act sought to prohibit was an intact dilation and extraction (D&E), a common late-term abortion procedure. Congress viewed the procedure as gruesome and inhumane. A main provision of the Act was to prohibit “knowingly performing a partial-birth abortion … that is [not] necessary to save the life of a mother.” The Act would effectually ban most late-term abortions which would place an undue burden on the right to an abortion established in Parenthood v. Casey.

The District Court agreed with the Plaintiffs that the Act was unconstitutional as it lacked an exception allowing the procedure where it is necessary to protect the health of the mother. Furthermore, the Act was “deficient because it covered not merely intact D&E but also certain other D&Es.” The Court of the Appeals for the Eighth Circuit affirmed the District Court’s ruling noting that the Constitution requires the legislatures to include a health exception for the mothers.

Issue:

Whether the Partial Abortion Ban Act violates the right of personal liberty protected by the Fifth Amendment because the Act lacks an exception for the health of the mother.

Holding:

Reversed. In a 5-4 decision, the Court upheld the Act by holding that the partial-birth abortion was not unconstitutionally vague nor did it impose an undue burden on the right to an abortion. Writing for the majority, Justice Kennedy stated that the “undue burden” test established in Casey is applicable to the instant case. The phrase referred to measures meant to discourage abortions, and to what degree these measures would be considered overly restrictive. Plaintiffs argued that an intact D&E is the safest method of abortion. Banning this safest method of abortion would not only place an undue burden upon the mother, but possibly risk her life. However, Justice Kennedy noted that the Act “allows a commonly used and generally accepted method, so it does not construct a substantial obstacle to the abortion right.” Furthermore, the majority noted that because the Act applies to only a specific method of abortion (intact D&E) the ban was “not unconstitutionally vague, overbroad, or an undue burden on the decision to obtain an abortion.”

Dissent:

Justice Ginsburg sharply disagreed with the majority noting that “the Court’s hostility to the right Roe and Casey secured is not concealed.” She believed it was irrational for the State to further any legitimate interest in an equally gruesome procedure, which may be similarly characterized as brutal. In her view, “The law saves not a single fetus from destruction, for it targets only a method of performing abortion.” Furthermore, she believed that the Act would “chip away” a right that was declared by the Supreme Court as central to women’s lives. Although Gonzales did not discard previous cases such as Roe or Casey, it was inconsistent with the very principles of stare decisis. Instead of following clear prior holdings, the Court would take deference to this “legislative override of our Constitution-based rulings.”

Justice Ginsburg, true to her roots in litigation for gender equality said of the majority opinion when announcing her dissent, “Notably, the solution the Court approves is not to require doctors to inform women adequately of the different procedures they might choose and the risks each entails. Instead the Court shields the woman by denying her any choice in the matter and this way of protecting women recalls ancient notions about women’s place in society and under the constitution ideas that have long since been discredited.”

Ginsburg Dissent: Ledbetter v. Goodyear Tire & Rubber Co. Case Summary

This case summary was written by Elizabeth Bowman for the Law Library blog.  You can listen to Justice Ginsburg announce her dissent and imagine her wearing her “dissent jabot” (see the display in the Law Library lobby):  https://apps.oyez.org/player/#/roberts2/opinion_announcement_audio/22216.  The decision in this case led to the enactment of the Lily Ledbetter Fair Pay Act of 2009, Pub.L. 111-2, § 1, Jan. 29, 2009, 123 Stat. 5.  You may view the Act on Heinonline’s U.S. Statutes at Large collection or on http://www.congress.gov using advanced search and selecting the 111th Congress.

Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007)

Lilly Ledbetter worked as a supervisor for Goodyear Tire & Rubber Company at its Gadsden, Alabama plant from 1979 to 1998.  By the end of Ledbetter’s tenure, her salary was $3,727.00, while her lowest paid male counterpart earned $4,286.00 and the highest paid earned $5,236.00.  In 1998, Ledbetter filed a complaint with EEOC and then sued Goodyear under Title VII of the Civil Rights Act of 1964, alleging that poor performance evaluations because of her sex resulted in lower pay than her male coworkers.

A jury found for Ledbetter and awarded her over $3.5 million in back pay and damages, which the district judge later reduced to $360,000.  The Court of Appeals for the Eleventh Circuit reversed, holding that Ledbetter’s claim was time barred. Title VII requires that a charge must be filed with EEOC within 180 or 300 days, depending on the state, from the date of the alleged violation.  The Court of Appeals concluded there was insufficient evidence to prove that Goodyear acted with discriminatory intent in making only two pay decisions that occurred within the 180-day filing deadline.

The question before the Supreme Court was whether and under what circumstances a plaintiff may bring an action under Title VII alleging illegal pay discrimination when the disparate pay is received during the statutory limitations period, but is the result of intentionally discriminatory pay decisions that occurred outside the limitations period.  In a 5-4 decision authored by Justice Alito, the Court held that discriminatory intent must occur during the 180-day statutory period, and thus, Ledbetter’s claim was untimely filed.

Justice Ginsburg sharply disagreed with the majority and read from the bench her passionate dissent.  Joined by Justices Stevens, Souter, and Breyer, she argued that pay disparities are significantly different from other types of discrimination, such as termination or failure to promote, which are “easy to identify” and allow a worker to immediately seek redress. Pay discrimination on the other hand is often “hidden from sight”, occur in increments, and become evident only over time.  Justice Ginsburg explained that rather than viewing salary setting decisions as “discrete from prior and subsequent decisions,” as the majority did, the better approach, consistent with Title VII’s purpose and Supreme Court precedent, is to “treat each payment of a wage or salary infected by sex-based discrimination” as an unlawful employment practice and “prior decisions, outside the 180–day charge-filing period,” although not actionable themselves, as “relevant in determining the lawfulness of conduct within the period.”  Justice Ginsburg took into account the realities of the workplace in her opinion.  She ultimately determined that the Court’s “cramped” interpretation of Title VII was “incompatible with the statute’s broad remedial purpose.”

Less than two years later, the Lilly Ledbetter Fair Pay Act was signed into law in 2009, which reversed the Supreme Court’s decision and makes clear that each discriminatory paycheck resets the 180-day limit to file a claim, helping to ensure that individuals subjected to illegal pay discrimination may effectively assert their rights.

Ginsburg Dissent: Gratz v. Bollinger Case Summary

This week the Law Library tasked law student Andy Kiyuna with summarizing a dissent by Justice Ginsburg.  In her dissent concerning the University of Michigan’s affirmative action admissions policy in Gratz v. Bollinger, Justice Ginsburg relied upon a 1998 journal article authored by Professor Linda Hamilton Krieger.  Professor Krieger’s article titled, Civil Rights Perestroika: Intergroup Relations After Affirmative Action is found at 86 Cal. L. Rev. 1251.

Gratz v. Bollinger, 539 U.S. 244 (2003)

Jennifer Gratz and Patrick Hamacher applied for admission to the University of Michigan’s College of Literature, Science, and the Arts (LSA) in 1995 and 1997, respectively. Both applicants were Caucasian residents of Michigan, both were told that final decisions on their applications were to be delayed, and both applicants were eventually denied. What differentiated Gratz and Hamacher from the rest of the students denied admission to LSA was the lawyers they hired and the certified class action against the University.

Under the admission policy during 1995 to 1998, the University admitted nearly every qualified “underrepresented minority” applicant. The policy scored students higher for admission for students who were underrepresented minorities, socioeconomically disadvantaged, attended a high school with a predominantly underrepresented minority population, or underrepresented in the unit the student is applying to. Starting in 1998, the University shifted its policy to a point system where 20 points were automatically awarded if a student was a member of an underrepresented minority group, attended a predominantly minority or disadvantaged high school, or was recruited for athletics. Under the new system, all students who scored over 100 under the admission policy were automatically admitted.

The question raised before the Supreme Court was whether the University’s use of racial preferences in undergraduate admissions violate the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. With a 6-3 majority, the Court answered yes. Since the policy automatically awarded 20 points rather than provide individual consideration for underrepresented minorities, the court found that the admission policy was not narrowly tailored to achieve the University’s asserted interest in diversity, thus violating the Equal Protection Clause.

In her dissent, Justice Ginsburg argued that since the admission policy does not seek to limit or decrease enrollment by any particular racial or ethnic group, and no seats are reserved on the basis of race, that the University did not violate the Equal Protection Clause. Ginsberg points out that race is not simply an impermissible classification, but that our Constitution is both “color blind” and “color conscious” on the subject. It is also worth noting that Professor Linda Hamilton Krieger[1] is cited twice in Ginsberg’s dissent, fueling the Justice’s arguments that “the stain of generations of racial oppression is still visible in our society… and the determination to hasten its removal is vital.”

[1] Linda Hamilton Krieger, Civil Rights Perestroika: Intergroup Relations After Affirmative Action, 86 Cal. L. Rev. 1251 (1998).

United States v. Virginia Case Summary

The following case brief was prepared by Brandon Singleton for this blog in anticipation of Justice Ginsburg’s visit in February.  United States v. Virginia was a seminal case about gender-based classifications at Virginia Military Institute.  Writing for the majority, Justice Ginsburg used the Equal Protection Clause of the Fourteenth Amendment to cause the institution to admit 30 women in the fall of 1997.  You can read a news article from the Washington Post about this first co-ed class.

Next week we will focus on a dissent that Justice Ginsburg wrote.  See a picture of the collar Justice Ginsburg wears when she has a dissent in the Law Library display (“The Notorious RBG”) on Justice Ginsburg in the lobby.

United States v. Virginia, 518 U.S. 515 (1996)

Background:

The Virginia Military Institute (VMI) was established in 1839 as one of America’s first state military colleges, funded by the Commonwealth of Virginia. Its mission is to produce “citizen-soldiers, men prepared for civilian life and military service.” It accomplished that mission through extreme adversity. New cadets were known as “rats,” and, for approximately 7 months, underwent a trial known as the “rat line,” where they were exposed to physical and mental stress. To quote the Commandant of Cadets, Col. Bissell, [the rat line], “‘dissects the young student,’ and makes him aware of … ‘how far he can go with his anger, … how much he can take under stress, … what he can do when he is physically exhausted.’”

In 1990, VMI’s single-sex policy was finally challenged when a female high-school student, seeking admission to VMI, filed a complaint with the Attorney General. She alleged that VMI’s exclusively male admission policy violated the Equal Protection Clause of the 14th Amendment. She was one of 347 women who had sent inquiries to VMI, none had received responses.

Virginia argued that VMI’s “adversative” method of training was inherently unsuitable for women. It argued that, not only did single-sex education yield important educational benefits, but those benefits could not be made available to women without alterations that would necessarily destroy VMI’s program.

The Federal District Court ruled in favor of VMI, holding that a single-gender environment yields substantial educational benefits. But the 4th Circuit Court of Appeals disagreed. The appellate court found that the Commonwealth failed to show that VMI’s admissions policy advanced any state policy. Moreover, it was contrary to the state’s announced commitment to non-discrimination and diversity in education. As a remedial measure, Virginia proposed the creation of a parallel women’s program, called the Virginia Women’s Institute of Leadership (VWIL). The 4th Circuit accepted that proposal, calling it “substantively comparable.” In response, the Attorney General appealed the case to the Supreme Court.

Issues:

Virginia’s petition for separate male and female military schools raised two main issues: 1) whether Virginia’s exclusion of qualified women from VMI denied them equal protection under the 14th Amendment, and 2) if yes, what remedy was required?

Holding:

In a 7 to 1 decision, the Court held that VMI’s male-only admissions policy violated the Equal Protection Clause of the 14th Amendment. Justice Ginsburg, writing for the majority, drew a clear rule: under equal protection analysis, parties seeking to defend gender-based government action must demonstrate “exceedingly persuasive justification” for the action. Here, Virginia failed to meet that standard.

First, Virginia failed to show that the male-only admissions policy advanced a state policy. In fact, the policy was per-se counter to Virginia’s stated commitment to furthering diversity in education.

Furthermore, Virginia’s proposed remedy, the creation of a separate women’s institute, VWIL, was insufficient because it could not offer the same benefits to women that VMI offered to men. VWIL would not provide the same rigorous military training, academics, or alumni involvement that VMI provided. VWIL would not require students to wear uniforms, eat together, or participate in any activities typical of a military format. For these reasons, the 4th Circuit’s finding that VWIL and VMI were “substantively comparable” was misplaced, and the standard inconsistent with precedent. The appropriate remedy was to admit qualified women to VMI. Here, Justice Ginsburg plainly stated the appropriate standard: all gender-based classifications must be evaluated with “heightened scrutiny.” Borrowing from the ideas of constitutional historian, Richard Morris, Justice Ginsburg wrote that, “a prime part of the history of our Constitution is the story of the extension of constitutional rights and protections to people once ignored or excluded.” Here, “there is no reason to believe that the admission of women capable of all the activities required of VMI cadets would destroy the Institute rather than enhance its capacity to serve the ‘more perfect Union.’”