Obama Puts U.S. on Side of LGBT Rights Worldwide

      President Jimmy Carter is commonly listed as a failed chief executive, but his administration created a lasting legacy by making support for human rights a central tenet of U.S. foreign policy. In the three decades since Carter left the White House, no administration — Republican or Democratic — has felt free to disregard human rights issues in making major foreign policy decisions or in shaping U.S. relations with individual countries.
      President Obama and Secretary of State Hillary Rodham Clinton have now laid the basis for a similar legacy by making support for LGBT rights a cornerstone of U.S. foreign policy. In a coordinated intercontinental media hit earlier this month [Dec. 6], Clinton delivered a powerful speech in support of LGBT rights worldwide to the United Nations Human Rights Council in Geneva, Switzerland, at the same time that Obama was issuing a presidential memorandum directing concrete steps for federal agencies to take to promote LGBT rights abroad.
      Clinton’s espousal of LGBT rights came as the U.N. body was celebrating the sixty-third anniversary of the adoption of the Universal Declaration of Human Rights in 1948. She acknowledged that LGBT rights were on nobody’s radar screen at the time, but noted that over time the international charter has been expanded to encompass the rights of indigenous peoples, children, and people with disabilities. In like fashion, Clinton said, the charter’s guarantees extend to LGBT persons as well. “Gay rights are human rights,” she declared, “and human rights are gay rights.”
      Clinton continued by cataloguing the many violations of those rights around the world. LGBT persons, she said, “are arrested, beaten, terrorized, even executed. Many are treated with contempt and violence by their fellow citizens while authorities empowered to protect them look the other way or, too often, even join in the abuse. They are denied opportunities to work and learn, driven from their homes and countries, and forced to suppress or deny who they are to protect themselves from harm.”
      State Department aides were reportedly concerned enough about possible adverse reaction to the speech that they did not advertise its subject in advance, according to the New York Times account. Among the 47 countries represented in the U.N. Council are such LGBT rights violators as Saudi Arabia, where homosexuality is illegal and sometimes prosecuted, and Uganda, where a controversial bill calls for executing “repeat offenders.” Despite the aides’ concerns, the Times reported that no one walked out of the speech and Clinton received a standing ovation.
      Clinton took pains to anticipate and refute the potential arguments against recognizing LGBT rights. Homosexuality is not an exclusively Western phenomenon, she said, as some in Africa and the Middle East contend. “Gay people are born into and belong to every society in the world,” Clinton said. Nor is gay rights a “luxury” that only the West can afford. In fact, Clinton said, failing to protect LGBT rights imposes costs, including lives of gay and straight people alike lost to disease and violence.
      Most broadly, Clinton said that neither religion nor culture can justify denying LGBT persons the universal rights to equality and dignity. “No practice or tradition trumps the human rights that belong to all of us,” Clinton said. “And this holds true for inflicting violence on LGBT people, criminalizing their status or behavior, expelling them from their families and communities, or tacitly or explicitly accepting their killing.”
      As Clinton and the White House both emphasized, the United States was already on record in support of LGBT rights at the U.N. council. The U.S. provided critical support in June to a South African-sponsored resolution expressing concern about the violence and discrimination that people suffer because of their sexual orientation. The resolution, approved by a 23-19 vote, marked the U.N.’s first official recognition of LGBT rights. It asked for the U.N. High Commissioner on Human Rights to complete a study on by December on the extent of discriminatory laws and practices worldwide.
      The mammoth report, released Dec. 15, confirmed the incidence of homophobic and transphobic violence and discrimination around the world. Violence against LGBT persons “tends to be especially vicious compared to other bias-motivated crimes,” the report noted.
      Around the world, same-sex conduct remains illegal in 76 countries, according to the report, including five that provide the death penalty for homosexual activity. On the other hand, the report noted encouragingly that 30 countries have decriminalized same-sex conduct in recent years. That list includes the United States, where the Supreme Court ruled anti-sodomy laws unconstitutional in 2003.
      In Washington, the White House said the State Department and other agencies were being directed to combat the criminalization of LGBT status or conduct and to protect vulnerable LGBT refugees and asylum seekers. The White House also called for leveraging U.S. foreign aid to support LGBT rights. As a small step toward that end, the State Department committed $3 million to a planned public-private fund to support LGBT rights organizations abroad.
      The U.S. initiatives cannot guarantee LGBT rights progress overnight. But documenting LGBT rights violations in U.S. and U.N. reporting over time will keep these issues on the international agenda. And despite the continuing political divisions in the United States, future administrations — Republican or Democratic — may find that the Obama administration has set a course on LGBT rights that cannot be reversed or ignored.

Republicans Call Off Truce on Judicial Nominees

      Hypocrisy was aptly defined by the French essayist La Rochefoucauld as the homage that vice renders to virtue. Twice last week, Senate Republicans hypocritically paid homage to the principle of executive branch authority by blocking nominations by President Obama to an important federal court and a new consumer protection agency.
      The GOP’s hypocrisy was especially blatant in denying an up-or-down vote to Caitlin Halligan, Obama’s choice to fill one of three existing vacancies on the U.S. Court of Appeals for the District of Columbia Circuit. Back when a Republican was in the White House, GOP senators were aghast that Democrats, then in the minority, were blocking votes on President Bush’s nominees for federal judgeships.
      Feelings ran so high that the then Senate majority leader, Tennessee’s Bill Frist, threatened to rule filibusters out of order, an action so antithetical to Senate traditions that it was labeled “the nuclear option.” Senatorial peace was restored only after a bipartisan group of seven Democrats and seven Republicans — the so-called Gang of 14 — pledged, in writing, not to support filibusters of judicial nominees in the future except in the event of “extraordinary circumstances.”
      The agreement paved the way for confirmation of three of Bush’s nominees for federal appeals courts: Janice Rogers Brown, Priscilla Owens, and William Pryor. Each gained confirmation by votes that fell short of the 60 that would have been needed to cut off debate. But the Democrats’ forbearance then has not been returned in kind now that they hold power in the Senate and Republicans are in the minority.
      Earlier this year, Senate Republicans succeeded in blocking a vote on Obama’s nomination of University of California-Berkeley law professor Goodwin Liu to the Ninth U.S. Circuit Court of Appeals. Liu, a rising academic star with unabashedly progressive views, would have become the only Asian American on a court with jurisdiction over Hawaii, California and other states with substantial Asian American populations. The vote to cut off debate was 52-43, strictly along party lines with one Republican (Utah’s Orrin Hatch) voting present and one GOP senator absent (Alaska’s Lisa Murkowski).
      Senators divided almost the same way in the 54-45 vote on Tuesday (Dec. 6) to try to cut off debate on Halligan’s nomination to the D.C. Circuit. Only Murkowski broke ranks to vote with 53 Democrats in favor of allowing Halligan’s nomination to come to a vote. Hatch again voted present. In both votes, all four of the Gang of 14 Republicans still serving in the Senate voted to support the filibusters despite their previous commitments: Arizona’s John McCain, South Carolina’s Lindsey Graham and Maine’s Susan Collins and Olympia Snowe.
      Ian Milhiser of the liberal group Center for American Progress underscored the Republicans’ hypocrisy by pulling up back-then quotes from Graham and 13 other GOP senators who voted to support the filibuster against Halligan despite their principled opposition to the practice earlier. One of the best examples came from Tennessee’s Lamar Alexander: “I would never filibuster any president’s judicial nominee. Period.” Kentucky’s Mitch McConnell, now the Senate minority leader, said back then that allowing filibusters against judicial nominees would amount to amending the Constitution to require a supermajority vote for confirmation.
      The case against Halligan fell far short of whatever meaning could reasonably be given to the admittedly ambiguous phrase “extraordinary circumstances.” Halligan was criticized primarily for her role, while solicitor general for the state of New York, in supporting a lawsuit seeking to hold gun manufacturers liable for gun homicides and street crime. The second count against her consisted of a brief she filed in behalf of a Guantanamo detainee challenging the president’s power to detain suspected terrorists without full judicial review.
      As a make-weight, Graham and some other Republicans said the D.C. Circuit’s caseload does not require filling any of the existing three vacancies. Graham pointedly noted that Democrats made the same argument in opposing Bush’s nominees for the D.C. Circuit. Whatever the caseload figures may be, the Republicans’ stance clearly has more to do with political payback than judicial administration.
      Just two days after Halligan’s nomination was buried, Senate Republicans followed by thwarting a vote on Obama’s nomination of Robert Cordray to head the new Consumer Financial Protection Bureau. The 53-45 vote to cut off debate, seven short of the 60 votes needed, again was almost completely along party lines, with only one GOP senator — Massachusetts’ Scott Brown — breaking ranks and Maine’s Olympia Snowe voting present.
      Without contesting Cordray’s qualifications, Republicans have vowed to oppose any nominee for the new agency without substantial changes to the new law that created it in the wake of the financial crisis. Democrats counter that Republicans should not hold the agency’s leadership hostage to legislative changes that they lack the votes to enact.
      Judicial politics has been a hardball game now for three decades, ever since President Ronald Reagan began selecting nominees recruited by conservative activists precisely for their conservative views. To Republicans, the Estrada filibuster raised the stakes by blocking a vote for the first time on a nominee with clear majority support in the chamber. When the Gang of 14 produced their agreement to abjure filibusters in the future, Hatch presciently described the accord as a truce, but not a ceasefire. With the Liu and Halligan nominations, Republicans apparently have signaled that the truce is called off.

Meddlesome Congress Is No Help on War on Terror Cases

      The Senate made a gallant effort last week to justify its former reputation as the world’s greatest deliberative body as it tried to define the government’s authority to detain suspected terrorists. The week began with a bipartisan compromise fashioned by two senators with experience generally taking the high road on the issues and ended on Dec. 1 with a thorough, and well-reasoned, floor debate.
      Despite those indicia of legislative statesmanship, the detention provisions included in the National Defense Authorization Act represent a step backward in the United States’ war against al Qaeda. Once again, Congress wants to micromanage the Obama administration’s enforcement tactics against al Qaeda members by limiting prosecutions in federal courts in favor of trials in the still unproven system of military commissions. In addition, the Senate majority apparently hopes courts will allow use of military-style detention and interrogation against suspected terrorists even if they are U.S. citizens arrested within the United States.
      True, the two sections at issue could have been worse. In section 1032, the bill supposedly mandates military detention for persons “determined to be part of al Qaeda or associated forces” who “have participated in a planned or actual attack or attempted attack on the United States or its coalition partners.” But it allows the administration to waive that requirement if it shows that a waiver would best serve the interest of national security.
      The mandatory military detention provision would not apply to U.S. citizens or lawful permanent residents. But in section 1031, the bill leaves unclear whether the general authority to detain suspected members of al Qaeda, the Taliban, or associated forces applies to U.S. citizens. An earlier version had been written to apply to U.S. citizens unless prohibited by the Constitution.
      In fashioning the compromise, Sens. Carl Levin, D-Mich., and John McCain, R-Ariz., chairman and ranking member respectively of the Armed Services Committee, said it was designed to leave the law on the issue unchanged. In effect, that would leave as the last word on the subject the Supreme Court’s somewhat cryptic decision in Hamdi v. Rumsfeld (2004). That ruling allowed military detention of a U.S. citizen captured abroad but left unanswered the question of military detention for a citizen arrested within the United States.
      In Senate debate last week, California Democrat Dianne Feinstein, who chairs the Senate Intelligence Committee, passionately argued against allowing indefinite military detention of U.S. citizens. “This country is special because we have certain values, and due process of law is one of those values,” Feinstein said. “So I object. I object to holding American citizens without trial.”
      From the opposite side, South Carolina Republican Lindsey Graham, a former military lawyer, argued with equal force in favor of allowing military detention for U.S. citizens: “I am just saying, to any American citizen: If you want to help al-Qaida, you do so at your own peril,” Graham said. “You can get killed in the process. You can get detained indefinitely.”
      Feinstein’s amendment failed on a mostly party-line 45-55 vote. Three Republicans voted in favor: Illinois moderate Mark Kirk and the libertarian-minded Mike Lee of Utah and Rand Paul of Kentucky. But the amendment fell short because 10 Democrats joined 45 Republicans in opposing it.
      Feinstein succeeded, however, with a second amendment that makes explicit that the provision has no effect on existing authority to detain U.S. citizens. Adopted with only one dissenting vote, the amendment effectively leaves it to the courts to answer the question left unresolved in Hamdi. In debate, Feinstein said both Levin and McCain had promised to defend that version of the legislation in conference with the House.
      The House version of the defense authorization bill is more stringent in several respects, including in its provision to require military commission trials for all suspected terrorists. The House version also would bar transferring suspected terrorists captured abroad into the United States and make it harder for the administration to transfer any of the current Guantanamo detainees to other countries. The Senate’s bill generally leaves those issues untouched.
      The preference in both chambers for military over civilian trials for suspected terrorists elevates ideological posturing over fact-based decision-making. As Feinstein and others pointed out, the government has successfully prosecuted hundreds of suspected terrorists since 9/11, under presidents of both parties: Republican George W. Bush and Democrat Barack Obama. That list extends from “shoe bomber” Richard Reid, serving a life sentence for his foiled aircraft bomb attempt in December 2001, to Faisal Shahzad, also serving a life sentence for his attempted Times Square bombing in May 2010.
      Major administration officials, including Defense Secretary Leon Panetta, CIA Director David Petraeus, and FBI Director Robert Mueller, argued against those provisions as the bills moved through the House and Senate. After the Senate action, White House officials raised the possibility of a veto.
      The administration gave way earlier this year, however, when Congress prohibited bringing any Guantanamo detainees to the United States for trial in civilian courts. The result has been to slow the trial of Khalid Sheikh Mohammed and the other alleged 9/11 co-conspirators. Facts and logic notwithstanding, Obama may well find he has little choice again if Congress insists on dictating where best to prosecute suspected al Qaeda members.

Government's Orwellian Defense of GPS Tracking

      Chief Justice John G. Roberts Jr. had a simple, direct question for the government lawyer defending the right of police to use a GPS device to track a suspect’s automobile for as long as a month without a search warrant. The government’s answer, after a moment of hesitation and a cloud of legalese, was at bottom also simple and direct — and scary in the extreme.
      Michael Dreeben, deputy solicitor general and the office’s senior specialist on criminal law, had started his Nov. 8 argument in United States v. Jones by contending that individuals have no expectation of privacy in their public movements. A GPS device, he insisted, does nothing more than Supreme Court’s decisions already permit police to do through human surveillance.
      Roberts was skeptical. Human surveillance requires a lot of work, but with the GPS police “just sit back in the station and they push a button whenever they want to find out where the car is,” he said. “That seems to me dramatically different.”
      Could police “put a GPS device on all of our cars, monitor our movements for a month?” Roberts asked later. “You think you’re entitled to do that under your theory?”
      Dreeben, with more than 80 Supreme Court arguments under his belt, appeared to be taken aback. “The justices of this court?” he asked. After Roberts said yes — provoking laughter in the courtroom — Dreeben realized he had no choice but to stick to his argument.
      Avoiding a direct yes or no answer, Dreeben replied that justices have no greater expectation of privacy on the public roadway than anyone else. “No problem under the Constitution?” the chief justice asked again, seemingly unconvinced.
      Roberts was not the only justice to be troubled. By the end of Dreeben’s argument and later rebuttal, every justice except Clarence Thomas — maintaining his customary silence — had joined in raising concerns about the implications of the government’s position.
      Could police put a GPS device surreptitiously on a person’s sport coat or overcoat, Justice Anthony M. Kennedy asked. Dreeben tried to deflect the question by saying the device could then track a suspect into the home, a privacy-protected sphere. Justice Ruth Bader Ginsburg picked up the thread. “Any of us could be monitored whenever we leave our homes,” she said. “So the only thing secure is the home.”
      Justice Samuel A. Alito Jr. picked up Roberts’ point about changing technology. “How do we deal with this?” he asked. “Do we just say, well, nothing is changed?” When Dreeben clung to his position, Justice Stephen G. Breyer joined in to raise the Orwellian implications of the government’s view. “If you win, you suddenly produce what sounds like 1984 from their brief,” he said referring to defendant Antoine Jones. “I understand they have an interest in perhaps dramatizing that, but maybe overly. But it still sounds like it.”
      Later, Justice Sonia Sotomayor teased out Altio’s suggestion that in time technology would allow government monitoring even without what Dreeben had acknowledged to Justice Antonin Scalia amounted to a “technical trespass” of placing a device on a car or on the person. “Under your theory,” Sotomayor told Dreeben, “you could monitor and track every person through their cell phone, because today the smart phones emit signals that police can pick up and use to follow someone anywhere they go.”
      By the time of Dreeben’s rebuttal, Justice Elena Kagan was troubled too, pouncing on his suggestion that with changes in technology people’s expectations of privacy also change. “That seems too much to me,” Kagan said, envisioning a “robotic device” that could track and report to police one’s movements 24 hours a day. “The notion that we don’t have an expectation of privacy in that . . . .,” Kagan said, “I’m not sure how one can say that.”
      The government was forced to defend an extreme position in the case because of a police foul-up of sorts. Police in fact had obtained a search warrant for the GPS device to drug suspect Antoine Jones’ car, but the warrant required it to be installed within 10 days and within the District of Columbia. Instead, police attached the device 11 days later when the car was parked in Maryland — effectively nullifying the warrant. The GPS tracking helped police follow Jones to a drug dropoff point, resulting in his conviction.
      The district court judge found no problem with the evidence, but the U.S. Court of Appeals for the District of Columbia Circuit, in an opinion written by conservative judge Douglas Ginsburg, ruled the GPS tracking amounted to an unreasonable search under the Fourth Amendment. In seeking to reinstate Jones’ conviction, the government had to defend the surveillance as warrantless. But in a fall-back position, the government argued that GPS surveillance be permitted as long as there was “reasonable suspicion” to justify the search, less than the customary probable cause requirement.
      By argument’s end, the court’s path to a decision was unclear, with justices apparently divided whether to ground a ruling on the trespass issue or to confront the broader privacy questions. Dreeben suggested the justices’ concerns about an Orwellian future could be addressed to Congress, but Jones’ attorney, Stephen Leckar, suggested there were “535 reasons” why that would not be a good idea.
      The decision is due by the end of June.

Justice Thomas's Two Decades of Rejecting Precedents

      As a Supreme Court nominee, Clarence Thomas presented himself as a cautious jurist committed to judicial restraint. “I have no agenda to change existing case law,” Thomas told a Republican senator during his confirmation hearing after being asked about his critical views about school desegregation. “That’s not my predisposition. It's not the way that I approach my job.”
      In his 20 years on the bench, however, Thomas has been a judicial activist of the first rank, a veritable bull in a china shop of Supreme Court precedents. More than any justice in recent memory — perhaps more than any justice in history — Thomas has time and again called for overruling prior decisions, some of them of recent vintage and some dating back decades or even centuries.
      Thomas was a brand-new Supreme Court justice in fall 1991 when he first met a precedent that he did not like. In Hudson v. McMillian (1992), a case argued in November 1991 in Thomas’s second week of oral arguments, Thomas contended in dissent that the Eighth Amendment’s Cruel and Unusual Punishment Clause should not apply to a prison guard’s deliberate beating of an inmate. For the majority, Justice Sandra Day O’Connor said that Thomas’s dissent ignored a “settled rule” dating to 1977 that “unnecessary and wanton infliction of pain” violates the Eighth Amendment.
      Thomas originally cast a lone dissenting vote in the case in the justices’ conference, though fellow conservative Antonin Scalia later joined his opinion. (In her book Supreme Conflict, the conservative-leaning reporter Jan Crawford Greenburg, then with ABC News and now with CBS, cites that sequence to refute the notion that Thomas in his early years simply followed Scalia’s positions.) In at least three dozen cases since then, however, Thomas has been all by himself in calling to overturn precedents.
      A compilation in 2004 by Jason Rylander, a lawyer then with the progressive group Community Rights Counsel, lists 35 cases in which Thomas argued alone either in concurring or dissenting opinions for reconsidering settled precedents. The list begins with Thomas’s questioning in Georgia v. McCollum (1992) of the rule established a year earlier that private litigants cannot use peremptory challenges to exclude potential jurors on the basis of race.
      Rylander, now with Defenders of Wildlife, ended his list in 2004, a year in which Thomas argued in half a dozen cases for rethinking past decisions. In one of those, Elk Grove Unified School District v. Newdow, Thomas took the startling position that the Establishment Clause, the central pillar of the separation of church and state, should apply only to the federal government, not to the states. In another, Sabri v. United States, Thomas argued for reconsidering decisions broadly interpreting Congress’s powers under both the Commerce Clause and the Necessary and Proper Clause.
      Had Rylander continued the compilation, he could have added at least two more from the past two terms. In Citizens United v. FEC (2010), Thomas argued in a lone dissent for scrapping campaign-finance precedents that uphold mandatory disclosure of campaign contributions. And just this year, in Brown v. Entertainment Merchants Association (2011), Thomas argued in dissent that minors have no independent First Amendment right of access to speech that the government wants to censor. That approach would be at odds with the court’s landmark student-speech ruling in Tinker v. Des Moines Unified School District. Writing the majority opinion in the case, Scalia noted that Thomas cited no case in support of his view.
      Thomas is not always alone in his penchant for breaking precedent. In his first term, he joined three others, including Chief Justice William H. Rehnquist, in a dissenting opinion that called for a “re-examination” of the landmark abortion rights ruling Roe v. Wade. Thomas had studiously avoided all questions on abortion during the confirmation hearing. More recently, in Parents Involved in Community Schools v. Seattle School District No. 1 (2007), he joined a plurality opinion by Chief Justice John G. Roberts Jr. that undercut the line of school desegregation decisions that Thomas had earlier appeared to accept.
      Precedents are not sacrosanct. The court itself has stated that the principle of stare decisis — respect for precedent — "is not an inviolable command.” Some of the court’s greatest moments have come in rejecting decisions that were wrong when decided or wrong when reconsidered. Think Brown v. Board of Education, Gideon v. Wainwright, and Lawrence v. Texas.
      Thomas’s approach, however, sets him apart even from his fellow conservatives. In his confirmation hearing, Roberts acknowledged that overruling a precedent can be “a jolt to the legal system.” As chief justice, Roberts has stopped short at times of officially overruling prior decisions. Thomas is less hesitant. As Scalia remarked to Thomas’s biographer Ken Foskett, Thomas “doesn’t believe in stare decisis, period.
      As he marks his twentieth anniversary on the court, controversy still rages whether Thomas or law professor Anita Hill was telling the truth about Hill’s accusations of sexual harassment. That controversy will likely remain unsettled. But Thomas’s record over two decades shows that he has not been the justice that he promised to be during confirmation hearings. His record may cheer conservatives, but others will see evidence that Thomas reached the court only after a calculated dissembling before the Senate about his approach to legal issues. That may be a reflection on the confirmation process, but it is also, and more to the point, a reflection on Thomas himself.

On Health Care, Will Justices Defer to Congress?

      Congress touched on some important First Amendment rights two decades ago when it passed a law requiring cable systems to carry the signals of all local broadcast stations. Cable systems argued that the government had no business telling them what to carry – arguments analogous to those heard today from the opponents of the individual health insurance mandate now being challenged before the Supreme Court.
      Before passing the cable “must-carry” law, however, Congress also heard from broadcasters and public-interest advocates that free, over-the-air broadcasting could be imperiled if cable systems, with their effective monopoly power and competing financial interests, refused to carry local TV stations. Those arguments are analogous to the warnings from supporters of the Patient Protection and Affordable Care Act that the health care market will be distorted — and health insurance premiums driven up — unless all health care consumers have to pay through insurance for the medical care they will eventually receive.
      The arguments over the cable law reached the Supreme Court in 1994 and again in 1997 in a constitutional challenge brought by the cable industry. In its first ruling, the court said the government needed to do a better job of justifying the law. On remand, a three-judge federal court in Washington conducted an extensive hearing recapping all of the testimony heard by Congress earlier and then upheld the law for a second time.
      The Supreme Court followed suit, in a 5-4 decision written by Justice Anthony M. Kennedy. In the critical passage in Turner Broadcasting System v. FCC (1997), Kennedy said it was for Congress, not the court, to decide how to regulate national industries even when First Amendment rights were at stake. The court had to defer to Congress’s findings “as to the harm to be avoided and to the remedial measures adopted,” Kennedy wrote, “lest we infringe on traditional legislative authority to make predictive judgments when enacting nationwide regulatory policy.”
      The Obama administration is making a blatant appeal for Kennedy’s vote in the pending challenges to the health care law by using that passage to close its most recent filing in the legal challenges before the high court. The government brief, filed on Tuesday (Oct. 18), came just one day after the 26 states challenging the law filed their brief in what appears likely to be the case that the Supreme Court will use to determine the constitutionality of the law.
      The rapid-fire succession of briefs in the case originally known as Florida v. Sebelius attests to the desire of critics and the Obama administration alike for a prompt resolution of the constitutional issues. Some Republicans and conservative court watchers were speculating over the summer that the administration might try to drag out the appeals in the multiple pending challenges so as to avoid the risk of an adverse Supreme Court decision in a presidential election year.
      The administration squelched that talk by filing its appeal in the Florida case — the only case the administration has lost so far — directly to the Supreme Court on Sept. 28 instead of asking for a rehearing before the full Eleventh U.S. Circuit Court of Appeals. The states — along with the National Federation of Independent Businesses, plaintiffs in a challenge consolidated with Florida’s — had filed their own appeals earlier that day. The administration wants to reverse the appeals court’s decision finding the individual mandate unconstitutional, while the challengers want to have the entire law thrown out – as the district court judge in Florida had ruled. The appeals court said the individual mandate could be severed from the law and the rest left on the books.
      The latest filings also came well ahead of schedule: the states beat their deadline by 11 days, the government would have had 15 days to respond. The new filings would allow the justices to take up the case in early November, allowing oral arguments in March even if the court does not ask to expedite the case.
      The court itself apparently recognizes the importance of the case. In an unusual but not unprecedented action, the court has established a separate web site page with links to docket information and briefs filed on all six of the pending petitions. In the other cases, the Sixth Circuit upheld the law, while the Fourth Circuit dismissed two challenges, in effect, as premature. Significantly, the administration is asking the court for a ruling on the merits without invoking traditional legal doctrines that could delay a decision.
      The opposing arguments in the briefs from the states and the NFIB on the one hand and the government’s on the other are just like those that Congress and the president resolved in favor of the individual mandate. All four of the newest justices — Roberts, Alito, Sotomayor, and Kagan — swore in their confirmation hearings that they recognized the Supreme Court’s role as a limited one, requiring deference to the policy choices of the political branches. In Roberts’ famous formulation, the court calls balls and strikes, but the other branches make the rules.
      The Turner Broadcasting Court, closely divided on legal doctrine like today’s, followed that approach in upholding the must-carry law. If the Roberts Court divides on the health-care law along conservative-liberal lines, as many are predicting, one can expect the government to remind Justice Kennedy several times how he voted in that case.

Frank Kameny, Civil Rights Hero, 1925-2011

      For all their undoubted bravery, the men and women who waged the battle for civil rights for black Americans in the 1950s and ’60s were not alone in their struggles. They had behind them and on their side black civil rights organizations, black churches, some white liberals in churches and synagogues, some sympathetic coverage in the news media, and, as early as Brown v. Board of Education, the federal government.
      Frank Kameny, who died last week (Oct. 11) at the age of 86, had virtually no one behind him or on his side when he began fighting for civil rights for gay Americans like himself in the late 1950s. Back then, homosexuals were all but alone, deemed either immoral or mentally ill or both, presumed unfit for government service, politically powerless, and invisible in information or entertainment media.
      Kameny did as much as to change that, probably more, than any other single person. Speakers at a program last week sponsored by the Rainbow History Project of Washington, D.C., rightly remembered him as having laid the philosophical basis for the gay rights movement. Kameny led the legal fight to remove homosexuality as the basis for disqualification from working for the federal government. He led the successful effort to get the American Psychiatric Association to stop classifying homosexuality as a mental illness. And he coined the phrase, “Gay is good,” which over time gave gays and lesbians self-esteem and self-confidence and eventually helped change society’s views of homosexuality as well.
      Kameny, a World War II veteran and Harvard-trained astronomer, started the fight out of necessity after having been fired from his job as an astronomer with the U.S. Army’s Map Service. (It is commonly reported that Kameny was arrested for cruising in Washington's Lafayette Park, but in his later appeal Kameny attributed his dismissal to his truthful disclosure on an employment form of a prior arrest in San Francisco on a baseless charge that was later expunged.) He fought his dismissal all the way to the U.S. Supreme Court, representing himself — on his own — in a strongly argued plea that his personal life had nothing to do with his government service. The justices refused to hear the case. (The 1961 petition is available here, as part of the Rainbow History Project’s Frank Kameny pages.)
      In the same year, Kameny founded one of the first gay rights organizations, the Mattachine Society of Washington. There were other organizations of the same name founded in the 1950s in Los Angeles and San Francisco. (Mattacino was a character in Italian theater, a court jester of sorts.) The Washington organization was independent, however, both in form and spirit. Unlike the California organizations, Kameny resolved to be as public as possible in advocating for the rights of gays and lesbians.
      It was in that spirit that Kameny led the first gay rights picketing in front of the White House on April 17, 1965 — four years before the raid on the Stonewall bar in New York City that is often treated as the beginning of the gay rights movement. The demonstration drew no news coverage except a brief mention in Washington’s Afro American newspaper, but the placards that Kameny and his dozen or so allies carried have now been turned over along with Kameny’s papers to the Library of Congress. Six years later, in 1971, Kameny ran for the District of Columbia’s non-voting seat in the House of Representatives. He was the first openly gay person to seek federal office in the United States.
      Kameny was equally bold in challenging the psychiatric establishment to remove homosexuality from its authoritative Diagnostic and Statistical Manual of Mental Disorders (the so-called DSM). As speakers at the Rainbow History program recalled, Kameny led a small band of gay guerrillas into the APA’s annual meeting at a Washington, D.C., hotel, stormed the stage, and lectured the startled psychiatrists that they were all wrong about homosexuality.
      Along with public advocacy, Kameny and the Mattachine Society also functioned as a self-help organization for gays and lesbians. A friend recalled to me having called the group’s hot line for medical advice after having his first same-sex experience. The society published a pamphlet with advice about what to do if arrested on sex-related charges. And Kameny provided his apartment as a way station for visiting gay activists.
      The APA delisted homosexuality in 1973. Two years later, the U.S. Civil Service Commission decided that homosexuality was no longer. Eventually, the District of Columbia police retreated from targeting gays for arrests for consensual sex. And in 2003, the Supreme Court ruled, in Lawrence v. Texas, that an individual’s “intimate relationships” were of no concern to the government, at least as far as criminal law was concerned.
      Kameny lived long enough to be recognized as a gay rights hero. The
obituary in the New York Times and the appreciation on the CBS program “Sunday Morning” included pictures of Kameny with President Obama in the White House, four decades after he picketed outside its gates. Kameny recognized the changes, but he was also unchanged in his determination. He was not satisfied that Congress has yet to make it illegal to discriminate in the workplace on the basis of sexual orientation. He was not satisfied that marriage equality remains a goal, not a fact. But he could take some pride in having accomplished to some extent the goal set out in the initial charter of the Mattachine Society of Washington: “to secure for homosexuals the right to life, liberty, and the pursuit of happiness.”

Stevens' Affectionate Memoir of Chief Justices He Knew

Five Chiefs: A Supreme Court Memoir. John Paul Stevens (Little Brown, 2011).
      Sometime between John Paul Stevens’ year as a law clerk in 1947-48 and his appointment to the Supreme Court in 1975, the justices changed the way that they voted on cases in their private conferences. Back when, the justices voted in reverse order of seniority: junior justice first on up to the chief. When he arrived as a justice, Stevens discovered that the voting proceeded in order of seniority, beginning with the chief and on to the junior justice: Stevens for his first seven terms.
      In his affectionate, discursive memoir Five Chiefs, Stevens says he would have preferred the earlier system, thinking it gives the junior justices a chance to persuade the court’s senior members. Still, the new system did give Stevens a chance to play a little game with his colleagues when the vote reached him with the eight justices divided 4-4.
      Stevens’ colleagues at the time included the liberal William J. Brennan Jr. and the conservative William H. Rehnquist, almost always on opposite sides in closely divided cases. So, when it came Stevens’ turn, he sometimes began by saying, “I agree with Bill,” and then waiting a couple of beats before saying which one.
      Admittedly, one has to be a Supreme Court junkie to get the most out of this pleasantry, but for those readers Stevens provides amusing anecdotes and interesting tidbits on every page. He recalls the time when Justice Potter Stewart whispered a disparaging comment about the lawyer then arguing to his adjacent colleague, Harry Blackmun, without realizing that his microphone was on. He also discloses that Blackmun is responsible for the rather obvious suggestion that the justices should meet for the “long conference” to dispose of the petitions that have piled up during the summer in the week before the new term begins on the first Monday in October.
      The heart of the book, as the title promises, are portraits of the five chief justices that Stevens has known as a law clerk (Fred Vinson), lawyer and appeals court judge (Earl Warren), and colleague (Warren Burger, Rehnquist, and John G. Roberts Jr.). As though to establish his bona fides of objectivity, Stevens finds something favorable and something critical about each.
      Stevens frankly admits that he did not admire Vinson. In line with conventional wisdom, he depicts Vinson’s appointment as product of cronyism with President Harry Truman and Vinson’s legal acumen as less than several of his colleagues. But Stevens credits Vinson with a decision on post-conviction remedies that Stevens, as a lawyer, later used to win the release of a wrongfully convicted prisoner.
      Warren is praised for three major decisions: Brown v. Board of Education, the school desegregation case; Reynolds v. Sims, applying one-person, one vote to state legislatures; and Miranda v. Arizona on police interrogation. But Stevens faults Warren’s decision, in the interest of unanimity, to delay immediate implementation of the desegregation ruling, allowing massive resistance to form.
      Burger is given credit for his many steps to improve administration of justice, as well as initiating the current rule limiting arguments to one hour, 30 minutes per side. It was also Burger who suggested that the cover of briefs be in different colors (for example, blue for petitioner’s brief on the merits, red for respondent’s) to help justices find cited sections during arguments. On the other hand, Stevens repeats the well known criticism that Burger was ineffective in managing the justices’ conference: allowing debate to go on too long, interjecting himself before others had spoken, and taking inaccurate notes as to justices’ votes.
      Rehnquist, by contrast, was efficient and impartial in managing his colleagues, according to Stevens, not only in the conference but also in the seemingly mundane task of taking the bench. The justices are summoned for the 10 o’clock opening by a buzzer at 9:55, giving them only five minutes to assemble, don their robes, and (per custom) shake hands with each of their colleagues. Under Rehnquist, Stevens relates, the justices had an unexcelled on-time record of being ready when the 10 o’clock buzzer went off.
      On the other hand, Stevens is less of a fan of Rehnquist’s jurisprudence. In particular, he criticizes Rehnquist’s decision, reversing a recent precedent, of allowing “victim impact statements” in death penalty cases. And he strongly disagrees with Rehnquist’s line of decisions protecting state governments from private suits for violating federal laws.
      Roberts’ portrait, shortest of the five, stresses his legal acumen and daunting skills as an advocate in 39 cases argued before the court. Having heard all of them, Stevens writes, “I consider myself well qualified to testify that he was a superb lawyer.” But Stevens faults Roberts as chief justice for being too lenient in giving lawyers extra time for arguments after the red light has come on. He also thinks Roberts was wrong to have agreed to be sworn in at the White House: Stevens thinks the president should come to the court, not vice versa. Even so, Stevens set his view aside and agreed, as the senior justice, to administer the oath.
      Stevens’ rank in history remains to be determined, but he retired with an outpouring of admiration and affection from Supreme Court watchers of all ideological stripes. After reading this memoir, readers will understand why.

Laying Out the Facts on Awlaki Killing

      When Thomas Jefferson and his fellow revolutionaries declared the American colonies’ independence from England, they began by explaining the need to lay out their reasons, in factual detail, for such a momentous decision. “A decent respect to the opinions of mankind,” Jefferson wrote, “requires that they should declare the causes which impel them to the separation.”
      What was true then is true today. The United States’ national identity demands that its actions, at home and abroad, satisfy in some sense “the opinions of mankind,” both at home and abroad. So the Obama administration owes it to Americans and the rest of the world to lay out in detail its case for the targeted killing of Anwar al-Awlaki, a U.S. citizen and al Qaeda leader, in a missile strike by a CIA-controlled drone aircraft in the Yemeni desert last week [Sept. 30].
      Much is known about Awlaki (sometimes spelled “Aulaqi”), and much of the information is from the U.S. government. But some of what is “known” is only asserted. And some of the unsubstantiated assertions are critical in determining whether the killing of Awlaki satisfies what may be or should be the requirements of U.S. and international law.
      Awlaki was born in New Mexico in 1971 and later educated in the United States after growing up in his father’s native Yemen. He was a Muslim imam of seemingly moderate views in several cities, including the Washington, D.C., area, before adopting radical Islamist doctrines that he has espoused on the Internet for nearly a decade. He was, in no uncertain terms, someone who wished the United States ill and someone who actively encouraged others to take up jihad against the United States.
      In announcing Awlaki’s death, President Obama identified him as “the leader of external operations for al Qaeda in the Arabian Peninsula.” In that role, Obama said, Awlaki “took the lead in planning and directing efforts to murder innocent Americans. He directed the failed attempt to blow up an airplane on Christmas Day in 2009. He directed the failed attempt to blow up U.S. cargo planes in 2010. And he repeatedly called on individuals in the United States and around the globe to kill innocent men, women and children to advance a murderous agenda.”
      As of this writing, the evidence to back up the most specific of those charges has not been made public. Awlaki acknowledged in an interview early last year that he knew and taught Umar Farouk Abdulmutallab, the so-called “underwear bomber” in the failed 2009 aircraft bombing. But Awlaki claimed that he did not direct Abdulmutallab to carry out the attack. The British press have reported on e-mails linking Awlaki to efforts to circumvent airport security procedures in the United Kingdom. But the evidence disclosed so far appears short of proving an operational role in the foiled October 2010 plot to place bombs aboard U.S.-bound cargo planes.
      Awlaki was reported more than a year ago to have been placed on a list of terrorists targeted to be captured or killed. Representing Awlaki’s father, the American Civil Liberties Union filed a federal court suit in August 2010 contesting the designation or, at the least, requiring the government to justify the decision. “Both the Constitution and international law prohibit targeted killing except as a last resort to protect against concrete, specific, and imminent threats,” the ACLU argued.
      The government responded by filing a document showing the procedures used for targeted drone strikes but without any specific information about Awlaki. In December, Judge John Bates dismissed the lawsuit. Bates said that Awlaki’s father lacked standing to bring the action and that the suit in any event raised a political question ill suited for courts to decide.
      The ACLU’s arguments were just that: arguments. Neither U.S. nor international law can be said to have a settled position on the rules applicable to targeted killings outside an active combat zone. But in his role as the United Nations’ special rapporteur on extrajudicial, summary or arbitrary executions, the U.S. law professor Philip Alston laid out criteria in a May 2010 report comparable to those the ACLU cited.
      A targeted killing must be “required to protect life,” Alston wrote in the 29-page report, with “no other means, such as capture or nonlethal incapacitation, of preventing the threat to life.” In addition, a government must have reliable information and intelligence to support the targeting decision and to minimize risk to civilians. And, significantly, Alston set out detailed rules of transparency and accountability. States should lay out the claimed basis for targeted killings, the procedural rules followed and after-action procedures to monitor compliance, he said.
      Benjamin Wittes, the Brookings Institution scholar who has followed the war on terror for a decade, proposed somewhat similar criteria for judging targeted killings under the Constitution’s Due Process Clause. On the national security blog Lawfare, Wittes said the target must be “identified with a high degree of confidence” and pose “an unreasonable risk to human life” with “no option for capture.” Surveying the information known about Awlaki, Wittes concludes the government’s action met that test.
      Wittes omitted one essential requirement from Alston’s list: transparency. Many Americans, and many others around the world, have well reasoned concerns about the U.S. action. Those concerns cannot be addressed by victory statements from White House lecterns. A decent respect for the opinions of mankind demands that all the facts be laid out for Americans and the world to judge.

Troy Davis' Unconvincing Case for Actual Innocence

      Troy Davis very probably shot and killed Mark MacPhail, a Savannah, Ga., police officer, in the early morning hours of Aug. 19, 1989, as MacPhail went to the aid of a homeless man being assaulted by Davis and two friends.
      That is the conclusion a dispassionate reader is quite likely to reach after reading the 172-page opinion by U.S. District Court Judge William T. Moore Jr. rejecting Davis’s claim of actual innocence of the murder for which he was convicted 20 years earlier.
      Davis’s actual-innocence claim drew nationwide attention and many thoughtful supporters during a long legal battle that ended with his execution by lethal injection late Wednesday evening [Sept. 21]. Now, many critics and opponents of capital punishment are hoping Davis’s case will get Americans to take a new look at the doubts about the way the death penalty is administered in the United States.
      Those doubts are familiar and well grounded. The death penalty is arbitrarily imposed, typically on the poor and virtually always on defendants with less than fully adequate legal representation. And there is the possibility that a wrongful conviction will lead to the execution of an innocent person.
      Davis’s case, however, adds little to most of these arguments, including the actual-innocence issue. The killing of a police officer — MacPhail was in uniform, moonlighting as a security guard — is one “special circumstance” that death penalty states use to define capital murder. The four-day trial and two-hour deliberation by a racially mixed jury were quicker, and the Georgia Supreme Court’s decision affirming the conviction and sentence shorter, than typical in other states. But no patent unfairness or constitutional error leaps out from the account of the trial and state appeal.
      Beginning in 1994, Davis and a succession of post-conviction lawyers waged a habeas corpus battle in state and then in federal court to gain a new trial by proving his innocence through newly gathered evidence. Two appellate courts, the Georgia Supreme Court and the Eleventh U.S. Circuit Court of Appeals, denied Davis a full hearing on the new evidence. When Davis filed an original habeas corpus petition with the U.S. Supreme Court, however, the justices took the extraordinary step of transferring the case to a federal district court judge for a full hearing. Dissenting, Justice Antonin Scalia said the court had done no such thing in the past 50 years.
      Moore was a Jimmy Carter-appointed U.S. attorney for four years before being appointed to the federal bench in 1994 by another Democratic president, Bill Clinton. He presided over a two-day hearing on Davis’s new evidence in June 2010. He gave Davis two favorable rulings on unsettled legal issues. First, Moore held squarely that the Constitution bars the execution of someone who can make a clear and convincing demonstration of actual innocence. Second, Moore held that a federal habeas court can re-evaluate an actual-innocence claim already considered by a state court.
      After carefully laying out the new evidence, however, Moore rejected it as “largely smoke and mirrors.” The supposed recantations by seven witnesses were “largely not credible or lacking in probative value,” he wrote in the opinion filed two months after the hearing. “The vast majority” of trial evidence, Moore said, “remains intact.”
      To be clear, Davis — age 21 at the time and known by the street name “Rough as Hell” — acknowledged on the stand being one of three men involved in the beating that MacPhail moved to break up. The only issue at trial was whether Davis or his friend, Sylvester “Red” Coles, shot and killed MacPhail as they fled the scene. The witnesses’ accounts pointed to Davis, not Coles, based in part on the clothes each was wearing.
      The accounts of the witnesses’ identifications and statements do not indicate suggestive procedures used by police. The victim of the beating, Larry Young, could not – and did not -- identify Davis as his assailant. The witnesses who did identify Davis as the shooter appear to have testified at trial without embellishing their accounts with newfound certainty. And the prosecution also had evidence of a statement Davis allegedly made to a friend that day confessing that he had shot MacPhail because the officer had seen his face and could identify him later.
      The recantations that Davis’s supporters emphasized in the days before the execution crumble under Moore’s examination. Of the seven witnesses, two did not actually say that they had lied in court. Two who had submitted affidavits, including Young, were not called as witnesses at the hearing. And two others Moore found simply unbelievable, including the friend who tried to retract his account of Davis’s confession. Moore accepted only one recantation: the jailhouse snitch who claimed that Davis confessed to the shooting. But Moore said the trial testimony was clearly fabricated — in effect, unlikely to have been a factor in the jury’s verdict.
      Jurors are told that a conviction requires proof beyond a reasonable doubt, but not beyond any doubt whatsoever. On that standard, the jury’s verdict appears valid, and Moore appears on solid ground in finding the new evidence insufficient to conclude that no rational juror would have convicted Davis with all the information available.
      Supporters of capital punishment believe that standard is good enough for administering the ultimate sanction, even at the risk that some concede of executing an innocent person. Some number of innocent people have surely been executed in the United States. But Troy Davis is probably not one of them.

House Lawyers Are Camera-Shy in DOMA Case

      House Republicans could not get to the microphones and e-mail blasts fast enough after the Obama administration announced in February that it would no longer defend the constitutionality of the federal Defense of Marriage Act (DOMA). House Speaker John Boehner denounced the move as “pandering” and immediately raised the possibility of the House intervening in litigation to defend the 1996 law, which denies federal benefits to same-sex couples.
      Boehner made good on his plan by winning party-line approval for the House Bipartisan Legal Advisory Group to intervene in suits challenging DOMA, including one in California by a federal court employee seeking health coverage for her legally married wife equal to that available to married opposite-sex couples. But the House’s legal team apparently is less eager than Boehner was in February to call attention to its defense of the law.
      In a Sept. 9 filing, House general counsel Kerry Kircher put the kibosh on video recording the next hearing in the case, scheduled for Oct. 21 before U.S. District Court Judge Jeffrey S. White in San Francisco. “Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives respectfully advises that it prefers not to participate in this district’s pilot project permitting video recording of courtroom proceedings,” Kircher wrote in a two-sentence memorandum, posted here on the web site of the gay publication Metro Weekly. “Accordingly Intervenor-Defendant declines to consent.”
      The move drew immediate criticism from House Minority Leader Nancy Pelosi as well as the gay rights group representing Karen Golinski in the case, Golinski v. U.S. Office of Personnel Management, 3:10-cv-0257-JSW. “It is outrageous that the leadership of the U.S. House of Representatives wants to shroud in secrecy their use of tax dollars to try to defend discrimination," Tara Borelli, a staff lawyer with Lambda Legal, said in a prepared statement.
      Pelosi, a Democrat from San Francisco, was not informed of the House move in advance, according to her spokesman, Drew Hammill. “Leader Pelosi strongly supports transparency,” Hammill told Metro Weekly, “but this decision by Speaker Boehner is not a surprise since his defense of the indefensible 'Defense of Marriage' Act does not have the facts or the law on its side.” Boehner’s office did not respond to a request for comment, the newspaper said.
      The move reflects not only on the House Republican leadership but also on the federal judiciary for its tentative move toward opening the courts to 21st-century style coverage of proceedings. Judge White opened the issue because his is one of the courts participating in a pilot program for camera coverage authorized by the U.S. Judicial Conference in September 2010.
      Open-access advocates applauded the decision, but with one hand behind their back because of its many limitations. The pilot project was to extend only to courts whose judges volunteered to participate. It would apply only to civil cases; a federal statute bars either audio or video coverage of criminal trials and hearings. And even civil cases could be recorded, broadcast, or streamed only if all parties to the case agreed.
      The dual-consent requirement was presumably intended to protect the privacy of private civil litigants. The government’s interest — or in this case the House of Representatives’ interest — in limiting the public’s opportunity to see or hear a proceeding challenging a federal law is hard, if not impossible, to discern.
      The various limitations in the pilot project appear to have been essential, however, to winning approval from the Judicial Conference, the federal judiciary’s policymaking arm. The federal courts had conducted a pilot project for broadcast coverage of appellate proceedings in the early 1990s. The Federal Judicial Center, the conference’s research arm, officially pronounced the experiment a success, but the conference let it die in 1996.
      The impetus for the new experiment came in part from Congress, which over the years indicated increasing interest in legislation to mandate radio or TV coverage of federal courts. Judge John Tunheim, a federal judge in Minneapolis who formerly headed the conference’s committee on court administration and management, told me earlier this year that he had worked with others in drafting rules for broadcast coverage just in case Congress acted.
      A second push for action came from the Ninth U.S. Circuit Court of Appeals, which gave a green light to plans for Internet streaming of the federal court trial in early 2010 of the challenge to California’s anti-gay marriage Proposition 8. The Supreme Court squelched that plan, however, by ruling that Judge Vaughn Walker had not followed proper procedure in amending local court rules to permit the plan.
      Federal judges in California have also been prime movers in Golinski’s challenge to DOMA. Golinski, a Ninth Circuit employee, married Amy Cunninghis in California during the six-month window between the California Supreme Court’s decision recognizing same-sex marriages and passage of Proposition 8 in November 2008. In September 2008, she submitted an application to enroll Cunninghis under the court’s health insurance plan. Chief Judge Alex Kozinski approved the application, but the Office of Personnel Management refused, forcing Golinski to sue.
      The Justice Department filed a brief in July 2011 arguing that DOMA is unconstitutional. The House’s camera-shy lawyers will have their own arguments to make in the October hearing. But anyone interested will have to go to San Francisco to watch or wait for a printed account to read what they had to say.

California's Prop. 8 Entitled to Its Day in Court

      As California’s secretary of state, Jerry Brown helped draft and win overwhelming voter approval of a far-reaching initiative in June 1974 requiring disclosure of campaign spending in state races and establishing conflict-of-interest restrictions on state and local officeholders. Brown’s support for Proposition 9 helped win nomination on the same day as the Democratic candidate for governor and in November a narrow victory over the Republican candidate.
      Imagine, however, that modern-day Republicans who see constitutional flaws in virtually any campaign finance regulations had won the state races for governor and attorney general in November 1974. And imagine further that in litigation over the initiative, a federal judge had ruled Proposition 9 unconstitutional and that the hypothetical governor and attorney general – who had opposed the measure all along -- then chose not to appeal the ruling.
      Under that scenario, would the official sponsors of the ballot initiative have standing to appeal the ruling, hoping to reverse it or at least to get a definitive decision? If not, wouldn’t the state officials who refused to appeal the ruling have succeeded in nullifying the will of the people of California in passing the initiative?
      Fast forward four decades, and that is the legal question now pending before the California Supreme Court on the litigation over Proposition 8, the 2008 ballot initiative that bars marriage rights for same-sex couples. Brown, now back in the governor’s office, and a Democratic attorney general, Kamala Harris, are declining to appeal a federal judge’s ruling that the anti-gay marriage initiative violates federal constitutional rights. The official sponsors of the ballot measure, ProtectMarriage.com and the organization’s leaders, responded by seeking to appeal in place of the state officials. And the Ninth U.S. Circuit Court of Appeals decided that it needs the California high court to say whether, as a matter of state law, a ballot initiative sponsor has legal standing to do so.
      From all that appears from the arguments in the case last week [Sept. 6], the California court is inclined to say yes. Among the seven justices, a majority appeared ready to rule that safeguarding what the court has previously called the “precious” right of initiative requires recognizing the right of the initiative’s sponsors to defend it in court if state officials refuse.
      Leaving an initiative with no one to defend would amount to “nullifying the great power that the people have reserved for themselves,” remarked Justice Joyce Kennard, one of the court’s liberals. Conservative Justice Ming W. Chin similarly saw a threat to the initiative process if state officials could acquiesce in judicial rulings to strike down ballot measures. “So the attorney general and the governor get to pick the laws they want to enforce?” he asked. The Chief Justice, Tani Cantil-Sakauye, appointed at the start of the year, warned in like vein that the initiative process would be “illusory” if ballot measure sponsors could not step in to ensure a full defense in court.
      The oral arguments and friend-of-the-court briefs in the case, Perry v. Brown, featured a reversal of traditional ideological positions on legal standing. Conservative groups typically thought of as opposed to expansive views of legal standing argued in favor of the anti-gay marriage group’s right to appeal the earlier ruling, while groups ordinarily thought of as liberal, including the League of Women Voters and gay rights’ organizations, argued against standing.
      The Ninth Circuit felt obliged to ask for advice because neither the California nor U.S. Supreme Court has definitively answered the question up to now. The U.S. Supreme Court, in a New Jersey case, did recognize the right of state legislators to defend a state law when executive officials refuse, but based the ruling on the particulars of New Jersey law (Karcher v. May, 1987). A decade later, the court indicated “grave doubt” whether sponsors of an Arizona ballot measure could defend it in court, but dismissed the case as moot without reaching a definite conclusion (Arizonans for Official English v. Arizona, 1997).
      In California, state courts have traditionally been liberal in allowing ballot measure sponsors to intervene in litigation without specifying the exact basis for doing so. “This issue has never come up definitively in our jurisprudence,” remarked Justice Goodwin Liu, who was confirmed to his post only a few days earlier after his nomination to the Ninth Circuit was thwarted by Republican opposition.
      Liu suggested, however, that the California court’s ruling on the state law issue may not be determinative for the Ninth Circuit. That’s because federal courts have interpreted the “case or controversy” requirement of Article III of the U.S. Constitution somewhat strictly. Even after getting an answer from the California court, the Ninth Circuit could rule that with no state officials to defend Proposition 8, there is no longer a live controversy for federal courts to consider.
      Gay rights groups might understandably hope for a ruling that blocks any further appeal and wipes Proposition 8 off the books. As Kennard remarked, however, the state court’s ruling will not be limited to gay issues. The initiative process has been much abused in recent decades, in California and elsewhere. But it remains a potentially valuable safeguard for the people against unresponsive and unaccountable government. There is little to be lost, and much to gain, in making sure that once enacted, a popularly approved ballot initiative gets its day in court, at every level, until a final resolution.

9/11: Never Forget . . . But What to Remember?

     Walter Masterson was on a conference call in the World Trade Center’s Building 5 when the first hijacked plane hit on Sept. 11, 2001. He got out of the building and, disconcerted, had to be directed by a police officer to get to safety. For the next two weeks, Masterson recalls, New Yorkers were on their best behavior. “Rudeness vanished,” he says. “Everybody helped. Nobody wanted for anything.”
     As it was in New York, so it was in the rest of the country. Forget where you were on September 11. Remember instead how you felt for the next two weeks or so. Americans were as one in solemn mourning and steely resolve. We knew the enemy: Al Qaeda. We knew where it was: Afghanistan. We knew what to do: go to war, with might and right on our side.
     Then things went wrong, terribly wrong in many respects.
      At the direction of Attorney General John Ashcroft, federal agents began rounding up a total of 762 young men from the Middle East or Pakistan using immigration laws as the pretext to justify ethnic and religious profiling. Later, the Justice Department’s inspector general chastised the government for holding many of the immigrants in punitive conditions, often with delayed access either to family members or lawyers. Few if any useful leads to Al Qaeda were found, but the dragnet helped justify anti-Muslim sentiment among the public at large that, sadly, persists a decade later.
     Meanwhile, President Bush and Congress were rushing to imperil civil liberties with a law called the USA Patriot Act to obscure its un-American provisions. Enacted barely six weeks after 9/11, the law gave the feds carte blanche to use “national security” to justify rummaging through library records, phone calls, and e-mails with less than the probable cause standard that the Framers wrote into the Fourth Amendment. Separately, Bush issued a secret executive order expanding the government’s authority under the Foreign Intelligence Surveillance Act to tap into electronic communications, even those of U.S. citizens.
     A decade later, the Patriot Act has been renewed twice, admittedly with some ameliorating changes, and Bush’s foreign intelligence surveillance program has been continued, again with some helpful restrictions. The government says these law enforcement tools have been essential to the war on terror, but detailed studies — notably, this report by the Breakthrough Institute, a progressive think tank in California — have found no evidence that the controversial tactics have played any significant role in thwarting terrorist plots.
     The war in Afghanistan went well: the Taliban displaced, a pro-Western democrat installed as interim leader, U.S. aid for reconstruction promised. Behind the scenes, however, the Bush White House, abetted by presidential power partisans in the vice president’s office and the Justice Department, were hatching plans to put the United States on the wrong side of the law of war. “Enemy combatants” rounded up in a difficult-to-define battlefield were to be transported to the U.S. naval base at Guantanamo Bay, Cuba, chosen precisely because it was thought to be outside the reach of U.S. courts: a law-free zone.
     The administration claimed the power to hold foreigners and even U.S. citizens with no hearing whatsoever. It denied any obligation to treat the Guantanamo prisoners according to the terms of the Geneva Conventions. And, most shockingly, it claimed the right to interrogate “high-value” Al Qaeda suspects in secret prisons using techniques such as forced isolation, sleep deprivation, stress positions, and waterboarding that amounted to torture.
     The Justice Department unpersuasively denied that the “enhanced interrogation techniques” were torture. In any event, the department argued in an opinion later repudiated, the president had power as commander in chief to order the use of torture, laws to the contrary notwithstanding.
     Then came the war on Iraq, entered into divisively on a dubious rationale supported by dubious evidence. The war drained resources from Afghanistan and made it harder to keep the support of the world’s Muslim communities in the just and necessary fight against Al Qaeda. And the war drained resources from domestic needs, helping put the country into a huge fiscal hole.
     There were other mistakes, perhaps more understandable. More money was spent on homeland security than necessary — $75 billion per year in state and federal spending, according to one estimate — but that can happen to well-intentioned government programs. Some 9/11 victims or survivors — first responders with serious injuries or debilitating illnesses — have had to work too hard to get compensation, but that too can happen when the government tries to dispense mass justice.
     Those other mistakes, however, could have been avoided. Indeed, the other branches of government tried. The Supreme Court forced the administration to recognize the Geneva Conventions and to allow judicial review at Guantanamo. Congress outlawed the enhanced interrogation techniques — after Bush had given them up — and smoothed the edges a bit on the Patriot Act and foreign intelligence surveillance.
     Apart from those changes, however, President Obama has done less than he had promised to get the United States back to its values in combating terrorism. So on this tenth anniversary we perhaps can best honor 9/11’s victims by remembering how the country lost its way afterward and by vowing not to let it happen again.

Making Eyewitness Testimony More Reliable

      James Womble brought in the new year in 2003 by drinking and smoking crack cocaine for several hours with his girlfriend and a friend, Rodney Harper. In the early morning hours, an acquaintance, George Clark, forced his way into the apartment along with another man to collect money that Harper owed him.
      Clark and Harper argued in a back room while the stranger allegedly held Womble at gunpoint in a dimly lit hallway. From the hallway, Womble heard the gunshot that left his friend Harper dead 10 days later. Clark and the stranger left after Clark warned Womble, “Don’t rat me out.”
      Womble eventually led investigators to Clark, who named Larry Henderson as his accomplice. Womble identified Henderson from an array of eight photos, but only after the investigating officer on the case overcame Womble’s professed uncertainty by telling him, “Just do what you have to do, and we’ll be out of here.”
      At trial — in a scene reminiscent of courtroom dramas both real and fictional — Womble was unshakable in identifying Henderson as his assailant. But in a landmark decision last week [Aug. 24], the New Jersey Supreme Court used Womble’s doubt-strewn identification to order sweeping new changes in the state’s court system to control the use of often unreliable eyewitness testimony.
      The New Jersey court’s unanimous ruling in State v. Henderson will make it easier for defendants to challenge and possibly suppress eyewitness testimony as unreliable. In addition, it will require stronger instructions to jurors about the possible unreliability of eyewitness testimony at the end of or, if needed, during trial.
      Eyewitness testimony is as powerful as it is — in the Supreme Court’s phrasing — “notoriously unreliable.” In one recent experiment, 500 store clerks asked to identify a customer from an array of photos within two days of having seen him were almost as likely to make an incorrect as a correct identification. And twice as many clerks made a wrong identification as those who acknowledged uncertainty.
      The doubts about eyewitness testimony indicated by a host of similar behavioral experiments are confirmed in real life in the U.S. justice system. Out of 250 wrongful convictions uncovered through DNA evidence, 190 resulted from what was belatedly recognized as faulty eyewitness testimony, according to a compilation by Brandon Garrett, a law professor at the University of Virginia, in his book Convicting the Innocent. “It is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country,” Chief Justice Stuart Rabner wrote in the New Jersey ruling last week.
      The U.S. Supreme Court has adopted limited safeguards against eyewitness error. The court in 1967 required counsel to be present at lineups conducted after a defendant’s indictment, but five years later all but nullified the decision by refusing to require counsel at the far more frequent pre-indictment lineups (United States v. Wade, Kirby v. Illinois). In 1977, the court refused to automatically bar identifications tainted by “suggestive” procedures.
      The court in Manson v. Brathwaite ruled that defendants must be allowed to challenge identifications from police lineups, “showups,” or photo arrays. But the justices required suppression of an identification only if the defendant could show “a very substantial likelihood of irreparable misidentification.”
      The New Jersey court’s ruling leaves that demanding standard in place, but gives defendants a better chance to meet it. As applied, the Supreme Court’s rulings require courts to consider whether police procedures were “impermissibly suggestive” but not to look at other circumstances that cast doubt on an identification. And testimony can be used if the witness appears to be reliable and sticks to an identification.
      As the New Jersey court points out, that approach effectively encourages police misconduct. Suggestive procedures such as the officer’s nudge to Womble in Henderson’s case will often make a witness certain of an identification that, in reality, is riddled with doubt. “Courts are encouraged to admit identifications,” Rabner explained, “that have been tainted by the very suggestive practices the test aims to deter.”
      The New Jersey court’s decision will undoubtedly be viewed by many as judicial activism. Rabner explained the decision as an exercise of the court’s supervisory authority over rules of evidence in the state court system.
      To its credit, New Jersey has rules aimed at limiting suggestive police procedures. Womble was given written instructions free of any hint or pressure to make an identification. The state attorney general’s office has guidelines that require identification procedures to be administered by someone other than the investigating officer. As in Henderson’s case, the guidelines are sometimes violated.
      Henderson is now out on parole after serving six years of a 15-year sentence for his conviction on a reduced charge of reckless manslaughter. The ruling gives him a new chance to suppress Womble’s identification and possibly overturn the conviction. The prosecution’s only other evidence was Henderson’s own statement acknowledging his presence but denying any participation in the shooting.
      The U.S. Supreme Court will also consider the use of eyewitness testimony in a case, Perry v. New Hampshire, set for argument in November. But the issue is narrow: whether the “impermissibly suggestive” rule applies to an identification made by a witness before the police investigation. And the Roberts Court majority is hardly inclined to establish safeguards to protect defendants’ rights. But all the justices ought to have an interest in ensuring the reliability of testimony used in criminal cases. That interest is less than well served by the current rules on eyewitness identifications.

Roberts Court Closing Courthouse Doors for Many

      When the Supreme Court adjourned for its summer recess last year, the court’s conservative majority was under fire for having opened the floodgates to unlimited political spending by corporations. The ruling in the Citizens United case seemed to many emblematic of the Roberts Court’s undue solicitude for the rights and interests of corporations.
      This year, the justices left Washington with the court’s conservative majority under fire again for rulings that benefited business interests. The Roberts Court was seen by many as having closed the courthouse doors to ordinary Americans seeking justice for wrongs done to them in the workplace or marketplace.
      “We take so seriously in this country the notion that any person with a claim should have his or her day in court,” said Erwin Chemerinsky, the liberal dean of the University of California-Irvine Law School. “But a majority of the Supreme Court doesn’t seem to believe it.”
      Far from denying the accusation, many of the court’s admirers acknowledge that the conservative majority is deeply skeptical of litigation. The Roberts Court “sees the court system as being overused and misused by whoever’s invoking it,” says Tom Goldstein, Supreme Court advocate and founder of SCOTUSBlog.
      “The Supreme Court is not going to expand existing precedents to allow more litigation,” says Jonathan Adler, a conservative constitutional law expert at Case Western Reserve University School of Law. “You see that across a wide range of areas.”
      As prime examples, the court’s critics cite the two headline-making decisions that will make it harder for plaintiffs to mount broad legal attacks against discrimination in the workplace or corporate fraud in the marketplace. Both decisions — gutting the big sex discrimination suit against Wal-Mart and barring a class action by cell phone customers against AT&T — came on 5-4 votes that pitted the court’s conservative majority against the liberal bloc.
      A review of the full term confirms Adler’s point that the court’s aversion to litigation runs across many areas. The victims of the court’s attitude come from all walks of life. A blue-collar worker in New Jersey injured on the job by an allegedly defective machine is told he must sue the manufacturer in England. Women in Louisiana and Minnesota suffering from a debilitating side effect of a prescription medication are blocked from suing the drug makers. A Louisiana man wrongfully convicted of murder because of prosecutorial misconduct loses his bid to hold the district attorney’s office liable
      Prison inmates will not be allowed to recover damages for violations of their religious rights. Anyone detained by the government using the material witness statute as a pretext cannot recover for loss of liberty. Taxpayers will find it harder to challenge government tax policies that breach the separation of church and state.
      The cases that reach the Supreme Court are rarely open and shut, so there are two sides to each of these cases. Some turn on dissection of federal statutes, others on application of Supreme Court precedents. Some are by 5-4 votes, others by a broader majority. But they share a common theme. The Roberts Court sees no need to read laws and interpret past decisions when possible to open the courthouse door and assure plaintiffs a viable path to legal remedy.
      The ruling in Wal-Mart Stores, Inc. v. Dukes raises the burden on plaintiffs in a job discrimination case to produce evidence of a company’s wrongdoing at a preliminary stage or pursue the suit through individual complaints instead of a class action. The decision in AT&T v. Concepcion gives businesses a roadmap to enforce arbitration clauses in preprinted consumer contracts that consign a defrauded customer to individual instead of classwide arbitration. The majority in each case was indifferent to the likelihood that many workers or consumers would never be able to take their claims to court.
      The injured worker in J. McIntyre Machinery, Ltd. v. Nicastro was blocked from suing in New Jersey by a 6-3 majority blind to the English manufacturer’s business-seeking in the United States. The 5-4 majority in PLIVA, Inc. v. Mensing read federal drug regulations so woodenly as to exempt a generic drug manufacturer from any ongoing duty to warn users of side effects. The 5-4 majority in Connick v. Thompson rejected evidence from the wrongfully convicted plaintiff that disregard of an important constitutional rule was standard practice in the Orleans Parish district attorney’s office.
      In Sossamon v. Texas, the 6-2 majority held that a federal law providing state prisoners “appropriate relief” against state governments for violations of their religious rights does not allow monetary damages as one of the possible remedies. A five-justice majority in Ashcroft v. Al-Kidd gave the government carte blanche to use the material witness statute to jail someone when there is not enough evidence for an arrest. In Arizona Christian School Tuition Organization v. Winn, the 5-4 majority repudiated a line of decisions allowing taxpayers legal standing to challenge tax policies as violations of the Establishment Clause.
      The court’s admirers find these rulings sound examples of judicial restraint. But the court-made rules created in these decisions also reflect a conscious policy preference that is at tension with the inscription above the Supreme Court’s doors: Equal Justice Under Law.

Fighting for Puerto Ricans' Voting Rights

      Gregorio Igartua voted in the 1976 presidential election, but not in any federal elections since then. But it’s not for lack of trying.
      Igartua, a lawyer in Puerto Rico, has waged a two-decade legal battle to try to win voting rights for himself and the rest of the island’s 4 million U.S. citizens. He voted in Virginia in 1976 while going to law school, but once back in Puerto Rico he lost the right to vote for president or for a voting member of Congress.
      Once, in 2000, Igartua got close. A federal judge in Puerto Rico ruled (in a case now called Igartua II) that Puerto Ricans could vote for the U.S. president. Two million ballots were printed for the Bush-Gore race. But five days before the election, the First U.S. Circuit Court of Appeals reversed the ruling. The ballots, Igartua recalls, were destroyed.
      Igartua’s latest setback came last week [Aug. 4] when the Boston-based First Circuit refused on a 3-3 vote to reconsider a three-judge panel’s decision in November rejecting his suit to win Puerto Ricans the right to elect voting members of the U.S. House of Representatives. A motion for an en banc rehearing before the full court requires a majority vote.
      For some of the judges on the appeals court at least, this is a very simple case. The Constitution provides that the House of Representatives “shall be composed of members chosen . . . by the people of the several states” and the Senate of “two senators from each state.” Puerto Rico is not a state.
      “The text of the Constitution does not permit plaintiffs to vote for a member of the U.S. House of Representatives,” Chief Judge Sandra Lynch wrote in the Nov. 24 decision in what has to be called Igartua IV. “It cannot, then, be unconstitutional to conclude the residents of Puerto Rico have no right to vote for Representatives.”
      Eight months later, Lynch vented a little impatience as she and colleagues Michael Boudin and Jeffrey Howard voted to reject Igartua’s motion for rehearing. The issues, including a claim brought under the International Covenant on Civil and Political Rights, had been fully considered — and rejected — six years earlier, Lynch wrote.
      “Our en banc decision in Igartua III controls this case,” Lynch wrote in a five-paragraph opinion. She noted that a federal appellate rule “disfavors . . . continual en banc reviews to re-examine already settled issues.”
      Despite the putdown, Igartua takes heart from the tie vote. “Every time there is an opinion, more evidence arises saying that I am right,” he says.
      The strongest support for Puerto Rican voting rights comes from Judge Juan Torruella, the lone Puerto Rican on the court. “This is a fundamental constitutional question that will not go away notwithstanding this court’s repeated effort to suppress these issues,” Torruella wrote in November.
      More significantly, Judge Kermit Lipez, a Clinton appointee, wrote in November and again last week that he has changed his views on the issue since the en banc ruling in 2005. After describing voting rights for Puerto Ricans as “a compelling legal problem,” Lipez said in November that he is now convinced that the Constitution “may permit their enfranchisement” under some other source of law.
      Lipez joined the 2-1 decision rejecting Igartua’s suit then, but called for reconsideration by the full court — and voted in favor of rehearing last week. A third judge, O. Rogeriee Thompson, joined in voting for rehearing — “more briefly but no less vehemently,” he said, than Torruella and Lipez.
      Based on population, Puerto Rico would be entitled to five House members instead of the non-voting “resident commissioner” who now represents the commonwealth’s interests in Washington. The 600,000 people who live in Washington, D.C., can empathize. The District of Columbia is represented in Congress by a non-voting “delegate.” But the Twenty-Third Amendment, ratified in 1961, did grant Washingtonians the franchise in presidential elections.
      The majority judges note the option of a constitutional amendment as the prescribed route for Puerto Ricans on this issue. But turning to the Constitution ignores Torruella’s main point. The framers could never have contemplated the United States exercising sovereignty over a territory for a full century — and treating it for most purposes as a state — without granting constitutional rights. In any event, Puerto Ricans are shut out of the amendment process that the court’s majority points to as their remedy.
      Still, Igartua and the judges siding with him face significant obstacles. Puerto Ricans have hurt their cause by rejecting full statehood, most recently in 1998, when a bare majority voted for “none of the above” (independence, commonwealth, or statehood). The appeal to the international covenant on political rights collides with the Senate’s formal declaration that the pact is not self-executing and with the Roberts Court’s recent refusal to give binding effect to other treaties.
      Igartua’s next stop is the Supreme Court, which he notes now includes a justice of Puerto Rican background: Sonia Sotomayor. But the road is uphill. When the Supreme Court was asked to grant Washington, D.C., voting representation in Congress in 2000, the justices turned the case down in a summary ruling without written opinion or dissenting vote.

Roberts' Ill-Informed Attack on Legal Scholarship

      Richard Nagareda was a well loved professor at Vanderbilt University Law School, a nationally recognized expert on class action lawsuits, and a thoughtful and highly accessible source for journalists until his untimely death last October at age 47.
      Nagareda achieved a measure of posthumous influence, however, in the Supreme Court’s decision this past term to kill the giant sex discrimination class action against Wal-Mart. In his opinion for the 5-4 majority in Wal-Mart Stores, Inc. v. Dukes, Justice Antonin Scalia cited one of Nagareda’s final publications to deliver the fatal blow.
      “Any competently crafted class complaint literally raises ‘common’ questions,” Nagareda wrote in “Class Certification in the Age of Aggregate Proof,” 84 N.Y.U. L.Rev. 97 (2009). “What matters to class certification,” he continued, “is not the raising of common ‘questions’ . . . but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.”
      Scalia used Nagareda’s point to show that the potential class members in the Wal-Mart suit had too many “dissimilarities” to bundle their claims into a single class action. Nagareda’s scholarship was important enough for Justice Ruth Bader Ginsburg, in her dissenting opinion, to mine one of his earlier articles to argue for allowing the suit.
      As former law professors, Scalia and Ginsburg naturally appreciate legal scholarship. Both wrote a few law review articles themselves in earlier days, and both cited law review articles in other opinions during the past term. So did the other former law professors on the court — Anthony M. Kennedy, Stephen G. Breyer, and Elena Kagan — as well as the non-scholars Clarence Thomas and Samuel A. Alito Jr.
      But not Chief Justice John G. Roberts Jr. In his eight majority opinions and three dissents, I spotted not a single citation to a law review article. The omission is apparently not coincidental. Roberts, it seems, has a low opinion of legal scholarship.
      The normally circumspect Roberts unloaded on law professors in answering a question at the recent conference of federal judges in the Fourth Circuit. “Pick up a copy of any law review that you see,” Roberts said, “and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”
      Roberts’ comment at the June 25 session stirred a vigorous on-line debate. Sherrilyn Ifill, a law professor at the University of Maryland, took strong exception in a July 1 post on the legal blog Concurring Opinions. “More often than not,” Ifill wrote, “law scholars today are deeply engaged with helping legal decisionmakers grapple with difficult legal issues. Our scholarship – if read – can be very helpful to judges and their clerks as they navigate the shoals of complex legal decisionmaking.”
      Ifill made her point with specifics. She cited recent law review articles on such questions as the applicability of the Fourth Amendment to GPS surveillance, the reliability of eyewitness identification, and the increased use of alternative dispute resolution. She noted that the D.C. Circuit cited the GPS article in its decision requiring a search warrant for GPS tracking. The Supreme Court has agreed to decide the issue in a separate case next term.
      Among more than a dozen commenters, some agreed with Roberts and some with Ifill. Commenters had the same range of opinion after a July 8 post on the Adjunct Law Prof Blog. But several commenters on both blogs suggested that both Roberts and Ifill were misunderstanding the role of scholarship. “I've never heard anyone criticize [Stephen] Hawking's work because it doesn't help them when they want to fix their car,” one commenter said.
      Jonathan Adler, a conservative professor a Case Western Reserve University Law School, agrees. “There’s some truth in what Chief Justice Robert says,” Adler remarks, “but it’s a mistake to say that the only legitimate purpose of legal scholarship is to inform courts on decisions.”
      Lurking in some of the comments is an additional, political controversy: the view of legal academia as dominated by liberal, socially activist professors more interested in causes than in law. “I just wish the law schools would return to teaching the basics of reading the law,” an 80-year-old retired lawyer commented.
      Whether or not Roberts holds that view, Ifill matches the conservatives’ stereotype of an activist academic: an alumna of the NAACP Legal Defense Fund whose courses include a seminar on “Reparations, Reconciliation and Restorative Justice.” Conservatives might also dismiss the articles she cites as ideologically liberal. But the authors explored in concrete situations how to give effect to provisions of the Bill of Rights that are honored by conservatives and liberals alike. The growing number of conservative legal academics do the same.
      So did Nagareda. When I interviewed him in 2008 for my report “High-Impact Litigation,” he was admirably evenhanded in describing the importance of and the problems with the present-day civil litigation system. Roberts, on the other hand, was neither evenhanded nor even well informed in his comments. After blithely dissing legal scholarship, the chief justice acknowledged that he would be hard pressed to recall the title of the last law review article he read.
      Postscript: An empirical study by two professors, Lee Petherbridge of Loyola Law School in Los Angeles and David L. Schwartz of Chicago-Kent College of Law, finds that the Court has cited law review articles in roughly one-third of its decisions over the past 60 years. The study, "An Empirical Assessment of the Supreme Court's Use of Legal Scholarship," currently in draft, can be found here.