Tag: news

8/8/2009: Justice Sonia Sotomayor takes oath.

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Stealing Home: Los Angeles, the Dodgers, and the Lives Caught in Between, by Eric Nusbaum, PublicAffairs, 331 pages, $28

On July 24, 1950, the city of Los Angeles sent a letter to the residents of the Palo Verde, La Loma, and Bishop neighborhoods. Their homes would soon be purchased by the city, and their neighborhoods, which would come to be known collectively as Chavez Ravine, would be demolished to make room for a public housing project. This was made possible by the expanded eminent domain powers provided to municipal housing authorities by the Federal Housing Act of 1949.

While the city’s housing authority cajoled the area’s residents—predominately Mexican-American, largely poor and working-class—into selling their homes for prices well below market value, the political winds in Los Angeles shifted against public housing, leading to a 1952 citywide referendum banning such projects. But the Los Angeles Housing Authority still controlled the future of Chavez Ravine; soon, many civic leaders became convinced the area would be a good place for a professional baseball team.

Throughout the 1950s, the authorities waged a series of legal and political battles with the remaining residents of the area, most notably the Arechiga family, who held out at 1771 Malvina Avenue until county sheriffs forcibly evicted them on May 8, 1959. In the end, the city sold Chavez Ravine to Walter O’Malley, owner of the Brooklyn Dodgers, who had moved his team to L.A. in 1958. Four months after the Arechigas’ eviction, O’Malley broke ground on Dodger Stadium, a sleek, modernist $23 million ballpark that became the envy of the Major Leagues.

Stealing Home: Los Angeles, the Dodgers, and the Lives Caught in Between tells the story of how a cluster of longstanding Mexican-American neighborhoods in Los Angeles was destroyed through the exercise of newly expansive state powers. The author, sportswriter Eric Nusbaum, demonstrates the caprice with which municipal leaders used that power, shifting their priorities rapidly from a project aimed at expanding the city’s housing stock to one aimed at assuring its big-league status. Nusbaum employs the well-known story of Dodger Stadium’s origins to craft a compelling social, political, and cultural history of postwar Los Angeles. The result is a cautionary tale about the dangers of eminent domain, and of municipal authorities’ power to reshape communities in the name of grand civic enterprises.

The appropriation of Chavez Ravine was an early example of a trend that reshaped the relationship between cities and professional sports. In the decades after World War II, many municipalities decided to become both landlords and financiers to the big leagues. As in Los Angeles, most of these efforts were made to lure a professional sports franchise to town. This was particularly common in the emerging metropolises of the American South and West, whose civic leaders yearned for the amenities enjoyed by residents of more established cities in the Northeast and Great Lakes regions.

That said, the earliest example of this pay-for-play strategy took place in Wisconsin. In the early 1950s, Milwaukee County provided land for the construction of a baseball stadium along state Highway 175. It then floated $5.9 million (approximately $57 million in 2020 dollars) in municipal bonds to finance construction. In 1953, after the team had spent 82 years in Boston, Milwaukee County Stadium became the home of the Braves.

It was Major League Baseball’s first franchise shift in 50 years. The same 16 clubs had played in the same 10 cities since the Theodore Roosevelt administration, but now a seemingly unending series of moves and expansions began, much of them subsidized by city, county, and state taxpayers.

The Braves themselves were on the move again just 13 years later. Suitors from Atlanta lured the team’s new overlords, a group of absentee owners from Chicago whom the press called “the Rover Boys,” with a new municipal stadium and promises of a regional broadcast media network that stretched across the Southeastern United States. The city’s mayor, Ivan Allen, had campaigned on making Atlanta a “Major League city,” and the Braves were just one part of the plan. From 1966 to 1972, Atlanta lured franchises from all four major professional sports leagues to the city by building a municipally funded stadium on top of a repurposed urban renewal site and a municipally financed indoor arena. Atlanta had upped the ante on granting subsidies for professional sports, and this in turn gave such cities as San Diego, Tampa, and Phoenix a model to follow.

But the seeds of the subsidies had been planted earlier. By the end of the 1950s, most stadium deals involved more public money than private. In 1950, fewer than half of the fledgling National Basketball Association and National Football League playing facilities were publicly owned, along with just two Major League Baseball stadiums and no National Hockey League arenas. By 1970, nearly 70 percent of the venues that hosted professional franchises in the four major sports leagues were publicly owned, a figure that grew to more than 80 percent by the early 1990s and hovers around 90 percent at present.

The stadium deal in Los Angeles was something of an outlier, since the Dodgers paid for the land on Chavez Ravine and paid for the construction of Dodger Stadium. But Stealing Home shows the dangerous precedent that was set when Los Angeles used its eminent domain authority for something as profoundly inessential as a baseball stadium. The city destroyed those neighborhoods in Chavez Ravine and paved the way for abuses of power to come. The team owner’s gain was the homeowners’ and taxpayers’ loss.

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On Friday, a divided panel of the Eleventh Circuit decided Drew Adams v. School Board of St. Johns County, Florida. This case found that Title IX requires a school to allow a transgender boy to use the boys’ bathroom. Bostock did not decide this question. Justice Gorsuch insisted, “we do not purport to address bathrooms, locker rooms, or anything else of the kind.” In dissent, Justice Alito seemed skeptical. He wrote:

Thus, a person who has not undertaken any physical transitioning may claim the right to use the bathroom or locker room assigned to the sex with which the individual identifies at that particular time. The Court provides no clue why a transgender person’s claim to such bathroom or locker room access might not succeed.

Alito’s dissent, which raised a parade of horribles, may come to resemble Justice Scalia’s Windsor dissent. In the lead-up to Obergefell, district courts gleefully cited Scalia when they set aside state marriage laws.

Judge Martin wrote the majority opinion in Adams. Chief Judge Pryor wrote a vigorous dissent. Indeed, he wrote, “I dissent,” rather than the traditional “I respectfully dissent.” (I call these mic-drops disrespectful dissents). The majority and dissent disagreed on a basic question that affects the framing of both the Title IX issue, as well as the Equal Protection issue.

According to the majority, the school’s policy singles out transgender students for special burdens. And, per Bostock, “sex” is an essential ingredient in that form of discrimination.

The School Board’s bathroom policy singles out transgender students for differential treatment because they are transgender… identity.” In this way, the policy places a special burden on transgender students because their gender identity does not match their sex assigned at birth. And, as this Court announced in Glenn, “discrimination against a transgender individual because of [his or] her gender-nonconformity is sex discrimination, whether it’s described as being on the basis of sex or gender.”⁵ 663 F.3d at1317; cf. Bostock v. Clayton County, 590 U.S. ___,140S. Ct.1731, 1741(2020)(confirming that “it is impossible to discriminate against a person for being . . . transgender without discriminating against that individual based on sex”). We therefore apply heightened scrutiny to the School Board bathroom policy.

Chief Judge Pryor views the case in a very different fashion: denying a student access to a bathroom based on his biological sex is not discrimination on the basis of transgender status. He writes:

To be sure, Bostock clarified that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex” in the context of employment discrimination under Title VII. Id. at 1747; see also Glenn v. Brumby, 663 F.3d 1312, 1318 (11th Cir. 2011) (holding that discrimination based on gender nonconformity constitutes sex discrimination regardless of whether the victim is transgender or not). But this appeal concerns the converse question: whether discrimination on the basis of sex necessarily entails discrimination based on transgender status. Of course, a policy can classify on the basis of sex without also classifying on the basis of transgender status. See, e.g., Nguyen, 533 U.S. at 60. Indeed, Bostock expressly disclaimed reaching any conclusion on the permissibility of sex-separated bathrooms and locker rooms. …. So the relevant question is whether excluding students of one sex from the bathroom of the other sex substantially advances the schools’ privacy objectives. The question is not, as the majority frames it, whether excluding transgender students from the bathroom of their choice furthers important privacy objectives

As I read Pryor’s dissent, the fact that Adams is transgender is irrelevant for the Title IX analysis. What matters is that the school has separated bathrooms by sex.

The majority opinion elides this entire analysis by misunderstanding both the classification and privacy interests at issue. It contends that the policy triggers heightened scrutiny not because it separates bathrooms by sex but because it purportedly imposes “differential treatment” on transgender students. Majority Op. at 12. In doing so, the majority misstates the school policy, conflates sex-based classifications with transgender-based classifications, and contravenes Supreme Court precedent. Compounding its errors, the majority then ignores fundamental understandings of why bathrooms are separated on the basis of sex by rejecting long-standing privacy rationales for sex-separated bathrooms.

The majority opinion says it is not necessary to define sex, because the discrimination was on the basis of transgender status.

Our dissenting colleague accuses us of shirking our duty because we do not delve into the meaning of “sex” in Title IX. To the contrary, we follow the lead of the Supreme Court in Bostock, which found it unnecessary to perform that analysis as to Title VII. We need not interpret the term “sex” to recognize that Mr. Adams suffered discrimination at school because he was transgender.

The majority opinion adds that the dissent does not recognize what it means to be a transgender boy. Therefore, the dissent does not consider the relevance of Adams’s transgender status:

The dissenting opinion’s central flaw is that it does not meaningfully reckon with what it means for Mr. Adams to be a transgender boy…. Because the dissent does not consider Mr. Adams’s transgender status analytically relevant, it expresses the view that allowing Mr. Adams to use the boys’ restroom erodes restroom divisions for all. This argument cannot stand together with the fact, found by the District Court, that Mr. Adams is “like any other boy.”

And, the majority contends, that the same but-for causation from Bostock resolves this case:

This being the Board’s view, it argues that Mr. Adams was treated just the same as all girl students at Nease High School. But the School Board, like the dissenting opinion, misapprehends Bostock. Bostock explained that if an employer fires a transgender female employee but retains a non-transgender female employee, this differential treatment is discrimination because of sex. In the same way, Mr. Adams can show discrimination by comparing the School Board’s treatment of him, as a transgender boy, to its treatment of non-transgender boys.

This dichotomy between the majority and the dissent dictates the outcome of the case. Martin and Pryor lay out the two positions cogently. They were writing about two completely different cases, like two ships passing in the night.

I am inclined to think Pryor was right, but I also thought Bostock was wrong. Indeed, throughout the opinion, I felt like Pryor was fighting with one hand tied behind his back–more precisely, Neil Gorsuch tied up that hand. The majority cited Bostock over and over again to promote a hyper-literal reading of Title IX, that rejected any extraneous evidence to give meaning to the statute–even as Pryor cited decades of precedent and practice that recognized the validity of sex-segregated bathrooms. Indeed, Pryor cites FN19 of United States v. Virginia, in which the Notorious RBG approved separating bathrooms based on physiological differences. (I flagged that opinion as grounds for her cancellation). He wrote:

Not long ago, a suit challenging the lawfulness of separating bathrooms on the basis of sex would have been unthinkable. This practice has long been the common-sense example of an acceptable classification on the basis of sex. And for good reason: it protects well-established privacy interests in using the bathroom away from the opposite sex

I don’t know how this case shakes out on appeal. Justice Gorsuch’s textualism rejects “common sense.” And Bostock and McGirt teach us that stare decisis only cuts in favor of Gorsuch’s reading of statutes, and not against it. Plus, we know he is committed to but-for causation. But the bathroom case is different than Bostock because the segregation is expressly sex-based. Stay tuned.

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On Friday, President Trump teased a new executive order on healthcare:

“That’s a big thing. I’ve always been very strongly in favor. We have to cover pre-existing conditions so we will be pursuing a major executive order requiring health insurance companies to cover all pre-existing conditions for all of its customers. This has never been done before.”

Of course, the media pounced and said the ACA–the law Trump is trying to destroy–already requires insurers to protect people with pre-existing protections. Specifically, the law’s guaranteed issue and community rating provisions (GICR) bar insurers from denying coverage, or charging higher premiums, to people with pre-existing condition.

So what is Trump up to? I can offer some uninformed speculation.

Ilya Shapiro and I filed the Cato Institute’s amicus brief in California v. Texas. We proposed that the Trump administration could require, by executive action, insurers on the ACA exchange to comply with guaranteed issue and community rating. But why would such an executive action be needed if the ACA is in place? Well, the ACA is currently being challenged. And perhaps one factor that could aid the Court’s deliberations would be an assurance that people with pre-existing protections could still obtain coverage on the exchanges, even if guaranteed issue and community rating (GICR) were found to be inseverable.

Here is an excerpt from our brief.

The analysis for individual market, on-exchange policies is different. Hurley and Nantz are not eligible for subsidies. Declarations, supra. But they could still purchase an unsubsidized plan on the exchanges. Halting GICR with respect to policies sold on the exchanges would be an unnecessarily overbroad remedy. So long as the plaintiffs can purchase off-market non-compliant plans, or none at all, their injuries will be remedied. Plaintiffs cannot demand a greater remedy to alter all policies offered on government exchanges. Moreover, people who seek to buy a government-sponsored product on a government exchange cannot complain about cumbersome regulations. [FN 12] Courts need go no further than issue a declaration with respect to individual market, off-exchange policies. “[T]he judicial power is, fundamentally, the power to render judgments in individual cases.” Murphy, 138 S. Ct. at 1485 (Thomas, J., concurring). No more, and no less. Hurley and Nantz, meanwhile, and all those who object to being forced to purchase unwanted policies, will have other options.

[FN12]: This narrow remedy would address concerns raised by the Federal Respondents about creating a “potentially unstable insurance market.” See Brief for the Federal Respondents at 44–45. The executive branch could also require insurance providers on the exchanges to comply with the ACA’s GICR provisions, regardless of the outcome of this litigation.

Let’s see if the Trump executive order reflects the strategy in our brief. I have no inside information. But I wouldn’t be surprised if the SG uses a similar strategy.

I will have much more to say about our amicus brief, as well as the Court’s recent severability decisions (Seila Law and AAPC), as the arguments draw near.

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