Supreme Court Showdown for Health-Care Reform

      As the Supreme Court listens to an extraordinary six hours of arguments this week (March 26-28) on the constitutionality of President Obama’s health-care reform, the justices will face the challenge of finding their way to a legal ruling on a case with politics written all over it.
      Never before has a president’s signature domestic policy initiative been pending at the Supreme Court just as the president is facing re-election before a closely divided nation. And never before have the justices been so predictably divided on legal issues based on the political party of the president who appointed them.
      Both sides in the debate over the law — fully entitled, the Patient Protection and Affordable Care Act — are doing their best to remind the justices of the political stakes. Placard-carrying demonstrators, pro and con, will mass on the sidewalks in front of the Supreme Court building all three days. Liberal groups have secured use of the United Methodist Church building across the street to set up a media center, where supporters of the law will be readily available to reporters and talk show hosts for comment (read: spin) on the case.
      The cases — three of them: Dep’t of Health and Human Services v. Florida, National Federation of Independent Business v. Sebelius, and Florida v. Dep’t of Health and Human Services — have attracted a record-busting 136 friend-of-the-court briefs, way past the previous record of 103 amicus briefs in the 2003 affirmative action cases. One news organization calculated that vertically stacked the briefs would stand about two feet high.
      The court acknowledged the stakes in the case with its decision to post an audio recording of the arguments on the court’s web site within hours after the end of each session. The press release announcing the same-day availability noted the “extraordinary interest” in the case.
      Would-be spectators hoping for a seat in the courtroom were already camped out on the Supreme Court plaza on Friday, three days in advance of Monday’s session. Those who get in will be disappointed perhaps to learn that the issue that day is whether the challenge to the provision requiring everyone to have health insurance is premature under a law called the Anti-Injunction Act.
      The big showdown on the individual mandate — supporters call it the “minimum coverage” provision — comes in a two-hour session on Tuesday that will pit Solicitor General Donald Verrilli for the government against former solicitor general Paul Clement for the states and former Reagan administration Justice Department official Michael Carvin for the National Federation of Independent Business and individual challengers. Verrilli and Clement will go head-to-head again on Wednesday in the states’ somewhat overlooked challenge to the law’s expansion of Medicaid coverage.
      The first-level handicapping of the justices’ votes puts the four Republican-appointed conservatives on one side, ready to rule for the challengers, and the four Democratic-appointed liberals on the other, locked in for the administration. The tie-breaking vote belongs, as it often does, to Justice Anthony M. Kennedy, the Republican appointee nominated in 1987 only after the Democratic-controlled Senate rejected the ardent conservative Robert Bork.
      Kennedy’s pivotal role was exemplified in the 5-4 decisions just last week (March 21) newly recognizing a constitutional right to effective assistance of counsel for criminal defendants in plea bargaining. Kennedy’s alignment with the liberal bloc, over a vigorous dissent by Justice Antonin Scalia for the conservatives, reflected Kennedy’s instinctive support for fairness in court proceedings.
      Opponents of the health-care law hope instead to appeal to two of Kennedy’s other instincts seen in his opinions through the years: support for individual liberty and for states’ sovereignty. Under their analysis, Kennedy could lead a five-vote majority to find the individual insurance mandate an impermissible intrusion on individual freedom and the Medicaid expansion an impermissible financial mandate on the states.
      All along, supporters of the law have been pushing a second-level handicapping that views Kennedy, Scalia, and Chief Justice John G. Roberts Jr. as possible, maybe even likely, votes to uphold the law. They point to Kennedy’s opinions stressing the importance of a national economy as evidence of his broad view of Congress’s powers under the Commerce Clause. They note that Scalia took a broad view of Congress’s powers under the Constitution’s Necessary and Proper Clause in the 2005 decision elevating the government’s anti-drug laws over California’s medical marijuana initiative (Gonzales v. Raich). And they note that Roberts similarly evinced a broad view of the Necessary and Proper Clause in joining the 2010 decision upholding Congress’s power to require civil commitment of sexual offenders after completion of prison sentences (United States v. Comstock).
      Supporters of the law believe they have the weight of legal precedent on the side. Opponents argue the individual health insurance mandate is literally unprecedented and the Medicaid expansion an exponentially greater financial imposition on the states than any previous federal spending mandates.
      On the eve of the arguments, Supreme Court watchers are predicting the law will be upheld. Some in the press corps, such as the Washington Post’s Robert Barnes and the New York Times’s semi-retired Linda Greenhouse, were emphasizing legal analysis. Others, such as Huffington Post’s Michael Sacks and Slate’s Dahlia Lithwick, view Roberts as likely to lead the court away from a political confrontation on this issue in order to save the court’s political capital for later fights on bigger issues, including the new challenge to racial preferences in college admissions set for next term.
      The justices will vote on the cases this week, but the rest of us will not know the results until the written decisions are issued, presumably on the court’s final decision day at the end of June.

In New Jersey, a Just Verdict for a Hateful Crime

      In the movie American Pie, Jim Levenstein’s friends play a dirty trick on him by surreptitiously setting up a Web cam to live-stream for all to view Jim’s much anticipated first sexual experience. The prank becomes all the more embarrassing when Jim, teenage testosterone surging, reaches the peak of excitement with his boxers still on, barely past second base.
      The makers of the 1999 film played the episode for laughs, and funny it is. The four-minute clip of the scene has a continuing life on You Tube, with more than 68,000 views at last count.
      On the surface, Dharun Ravi played a similar prank on the nights of September 19 and 21, 2010, when the Rutgers University freshman set up a Web cam to watch his roommate Tyler Clementi in a sexual encounter. But Ravi now faces a possible prison sentence of up to 10 years after a state court jury in New Jersey convicted him on Friday (March 16) of 24 criminal counts, including violations of the state’s hate crime law.
      This story differs from the movie, of course, because Clementi, an 18-year-old gay boy, committed suicide the day after Ravi's second, unsuccessful spy-cam set-up by jumping into the Hudson River from the George Washington Bridge. Clementi’s suicide made national news, feeding into a national campaign by gay rights groups against the bullying, harassment and worse directed against so many gay, lesbian, bisexual and transgender individuals.
      Whatever Ravi’s moral responsibility might be, he could not be held legally responsible for Clementi’s death. But the 35-count indictment brought by prosecutors in New Brunswick charged him with invasion of privacy, bias intimidation and obstruction of justice.
      Like Clementi’s death, the prosecution made national headlines, but also attracted controversy from the outset and all the more so with the verdict. Within hours of the conviction, Jacob Sullum, senior editor of the libertarian magazine Reason, complained that Ravi had been convicted of “a hateless hate crime.” The verdict, dubious on the evidence in Sullum’s view, also compounded what he called “the injustice of imposing extra punishment for crimes motivated by bigotry.”
      Hate crime laws have drawn this criticism for decades even as they have been enacted and expanded by Congress and legislatures in virtually all the states. Libertarian and conservative critics view the laws as sops to political constituencies — women, racial and ethnic minorities and LGBT individuals — that not incidentally infringe on freedom of expression: in effect, thought crimes.
      The criticism has been rejected by, among others, the U.S. Supreme Court. In upholding Wisconsin’s hate-crime law, Chief Justice William H. Rehnquist spoke for a unanimous court in endorsing the rationale the state offered for the law (Wisconsin v. Mitchell, 1993). “Bias-motivated crimes,” he wrote, paraphrasing the state’s argument, “are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest.”
      A decade later, Justice Clarence Thomas, the court’s most libertarian-minded member, similarly embraced that view in rejecting a First Amendment challenge to Virginia’s anti-cross burning law. “Cross burning has almost invariably meant lawlessness and understandably instills in its victims well-grounded fear of physical violence,” Thomas wrote in Virginia v. Black (2003). “Those who hate cannot terrorize and intimidate to make their point," he concluded.
      Ravi was charged under a New Jersey law that provides increased penalties for specified crimes if committed with “a purpose to intimidate an individual or group” on the basis of specific characteristics, including sexual orientation. The law also provides the same enhancement if the offender commits the crime knowing that it would result in bias-intimidation or “under circumstances” that in fact caused an individual to be intimidated because of a specified bias.
      The New Jersey jury seemingly worked through the statute and the evidence with some care. The panel found no intentional bias intimidation in Ravi’s initial spy-camming and acquitted him on all counts in relation to Clementi’s hook-up partner. But the jury found Clementi was intimidated after the first evening, based in part on Clementi’s obsessive checking of Ravi’s twitter account once he had learned of the spying. And the panel agreed that Ravi’s actions on the second night did constitute intentional violation of the law.
      Sullum criticizes the verdict in part by attacking the yet-unimposed sentence as too severe. Ravi rejected a plea bargain that called for no prison time, only 600 hours of community service. Character witnesses testified that Ravi is not anti-gay. But he was charged with and found guilty of anti-gay conduct. And his demeanor during the trial gave no indication that Ravi has yet to feel remorse for what he did.
      As with cross-burning, anti-gay bullying and harassment comes burdened with a history: the history of violence and intimidation against gay people. The intimidation is particularly hurtful for young people still working out their individual sexualities. That’s why Ravi’s offense was no sophomoric prank. By singling out Clementi as different — because of his sexuality — Ravi was rightly held responsible for making his roommate feel vulnerable to all the harm that anti-gay prejudice can bring about.
      Ravi’s sentencing is set for May 21; New Jersey law gives the judge some discretion in the length of the sentence. Defense lawyers say they have grounds to challenge the verdict; appellate rulings will come a good many months in the future. For now, though, Ravi’s conviction appears to be a just verdict for a hateful crime.

“Judicial Process” Needed for Targeted Killings

      National security was at stake, President Richard Nixon contended, when he ordered the FBI early in the 1970s to wiretap the telephones of suspected domestic subversives. The threat was too serious and too urgent, Nixon and his lawyers reasoned, to go to court first for warrants to authorize the taps.
      In a unanimous opinion, the Supreme Court decisively rejected Nixon’s claim of unilateral authority to order electronic surveillance in the name of national security. Justice Lewis F. Powell’s opinion in United States v. U.S. District Court, 407 U.S. 297 (1972), noted “the difficulty of defining the domestic security interest” and “the danger of abuse” in ruling that the executive could not bypass the courts even when supposedly necessary to keep the country safe.
      Today, the Obama administration is claiming an arguably more far-reaching executive power: the power to kill a U.S. citizen thought to be actively engaged in plotting terrorist attacks against the United States. From the administration’s view, the need to give the executive a relatively free hand is as clear as it was to Nixon. And the threat posed by Al Qaeda terrorists is evidently much more real than the supposed danger posed by the Vietnam-era political dissidents.
      Despite its best efforts, however, the administration has not made a convincing case for the necessity of bypassing the courts in carrying out targeted killings. The claimed power to kill a U.S. citizen away from an active combat zone differs in kind from the president’s traditional powers as commander in chief. And the practical problems that administration officials point to, including the need for secrecy and speed, can be accommodated by a carefully designed system of judicial review.
      Attorney General Eric Holder laid out the legal rationale for targeted killings of U.S. citizen-al Qaeda terrorists in rationale in a speech at Northwestern University Law School last week (March 5). Without naming any individual, Holder was evidently attempting to justify the use of a CIA-controlled drone in the Yemeni desert in late September to kill Anwar al-Awlaki, a U.S. citizen and ranking Al Qaeda operative. Awlaki was thought to have been the architect of the foiled bombing attempt of a U.S.-bound aircraft on Christmas Day 2009 by “underwear bomber” Umar Farouk Abdulmutallab as well as the foiled plot against U.S. cargo planes the next fall.
      On paper, the administration’s rules appear to be calibrated to comply with legal as well as moral requirements. Holder laid out three conditions (“at least”) that would make it lawful to use “lethal force” against a senior al Qaeda leader who was “actively engaged in planning to kill Americans.” The government first must have determined, “after a thorough and careful review,” that the individual poses “an imminent threat of violent attack against the United States.” Second, “capture is not feasible.” And, third, the operation “must be conducted in a manner consistent with applicable law of war principles” – which he later listed as including the need to target only military or cooperating civilians and to minimize collateral damage.
      Holder also acknowledged the domestic law consideration, taken straight from the Bill of Rights, that the government cannot deprive a citizen of “life, liberty or property” without “due process of law.” But he was unbending in rejecting any judicial role for passing on the executive’s decision to kill a U.S. citizen. “‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security,” Holder said. “The Constitution guarantees due process, not judicial process.”
      National security operations are “core functions” of the executive branch, Holder explained, that require decision-making based on information and expertise that only the executive branch can possess in real time. To buttress the point, Holder pointed to an unspecified court decision that he said “makes clear” that the president needs no judicial approval before using force against a senior leader of a foreign terrorist organization “even if that individual happens to be a U.S. citizen.”
      In that decision, U.S. District Court Judge John Bates in December 2010 rejected a suit by al-Awlaki’s father seeking to nullify the targeted killing order against his son. In addition to rejecting the father’s legal standing to bring the suit, Bates also ruled that the suit presented a political question, not one for the courts to decide.
      The course of the suit, however, belies one of the administration’s arguments — that time considerations preclude the courts’ involvement. Al-Awlaki was on the target list for well over a year before his death. The administration had ample time to lay out the evidence against al Awlaki. And contrary to Holder’s suggestion judicial review could be accomplished without putting a judge in the situation room to pass on specific tactical decisions.
      The Foreign Intelligence Surveillance Court, created by Congress to review requests for foreign intelligence wiretaps, could be a model to look to in creating judicial review of targeted killings, as the New York Times has advocated editorially. That court has provided some independent check on potential executive branch overreaching even if its record of nearly always approving electronic surveillance requests disappoints civil libertarians.
      Obama is not Nixon, and al Qaeda is not SDS. But the courts have a role in protecting U.S. citizens’ rights even in times of real wars and real dangers. A judicial process for targeted killings could safeguard those rights without jeopardizing national security.

A Free Pass for Foreign Companies for Rights Abuses?

      Update: In an unusual development, the Supreme Court has asked for a new round of briefs and arguments on an issue that could narrow further than already indicated U.S. courts’ jurisdiction over international law violations in other countries. The court on March 5 directed attorneys to file supplemental briefs on the question: “Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. §1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.” The case will be reargued in the next term. A ruling to bar jurisdiction over such cases would upset lower court precedents dating from the 1980 Filártiga decision described in my original post.

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      In John Le Carre’s The Constant Gardener, an ethically challenged multinational drug company colludes with a fictitious Kenyan government in lethal testing of an experimental drug on unwitting TB patients. The company covers up its activities with a campaign of intimidation that includes the murders of a human rights activist and eventually her husband, the novel’s title character.
      Le Carre’s story is fiction, of course. But the former British intelligence agent built his reputation as a novelist on intricate plots constructed with enough factual knowledge and research to be plausible. And the history of U.S. and multinational corporations in Third World countries gives credence to the idea that big companies at times might either participate in or turn a blind eye to human rights abuses committed for the benefit of their exploitative operations.
      The Movement for the Survival of the Ogoni People thinks that corporate conduct of this sort not only can happen, but did — in the oil-rich Niger delta region of Nigeria in the early 1990s. Ogoni activists waged a campaign against the environmental and financial rape of their homeland by the British- and Dutch-based Royal Dutch Shell. To counter the campaign, Shell called on the military dictatorship of Gen. Sani Abacha, which responded with a brutal crackdown reported to have claimed 2,000 lives and displaced 80,000 people.
      The victims included Dr. Barinem Kiobel, who was arrested in 1994 along with other leaders of the movement. The so-called Ogoni 9 were allegedly held incommunicado, tortured, and tried by a kangaroo court before they were executed only 10 days after their convictions.
      Today, Kiobel’s widow, Esther, is seeking justice in U.S. courts under a federal law enacted at the nation’s founding to create a legal remedy for violations of international law. But if Supreme Court justices’ questions during arguments last week (Feb. 29) are any indication — and they often are — Kiobel and the other plaintiffs are likely to be have the courthouse door shut in their faces with a decision shielding foreign corporations from responsibility for human rights abuses in foreign countries, at least in U.S. courts.
      Kiobel is the first of 12 named plaintiffs in suit filed in federal court in New York City in 2002 against Royal Dutch Shell under the Alien Tort Statute. The law, passed by the First Congress in 1789, gives federal courts jurisdiction over “any civil action by an alien, for a tort only, committed in violation of the law of nations or of a treaty of the United States,” 28 U.S.C. § 1350. In their complaint, the plaintiffs alleged that Shell participated with the Abacha dictatorship in torture, extra-judicial executions, and crimes against humanity directed against the Ogoni activists.
      The Alien Tort Statute had gone all but unnoticed for most of U.S. history until human rights lawyers used it in the late 1970s to bring a suit in behalf of a Paraguayan asylee, Dolly Filártiga, whose teenage brother Joelito was killed at the direction of a Paraguayan police inspector, Americo Norberto Peña-Irala. Both Filártiga and Peña-Irala were in the United States: Filártiga as an asylee, Peña-Irala on an expired visitor’s visa. In a decision now viewed as established precedent, the Second U.S. Circuit Court of Appeals said the 1789 law gave federal courts jurisdiction over the case (Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980)). The Filártigas eventually won a $10 million judgment, never collected.
      Since 1980, human rights lawyers have filed similar suits in U.S. courts, with only limited success, against individuals as well as corporations. In 2004, the Supreme Court officially ratified such causes of action but only for clearly recognized violations of international law (Sosa v. Alvarez-Machain). And in an unelaborated footnote, the court raised without resolving the question whether international law would recognize holding a corporation liable for violations.
      In the Ogonis’ case, a sharply divided Second Circuit panel seized on that footnote to dismiss the suit even though Shell’s high-priced legal team had never raised the issue. In dissent, Judge Pierre Leval insisted that corporate liability for torts was recognized in 1789 and is well established today. The pivotal vote was cast by Chief Judge Dennis Jacobs, who explained in the later decision to deny a rehearing that he saw little need to hold corporations responsible. “Examples of corporations in the atrocity business are few in history,” Jacobs wrote.
      The Roberts Court’s conservative majority made clear in last week’s arguments in Kiobel v. Royal Dutch Petroleum Co. they have little use for the suit either. “What business does a case like that have in the courts of the United States?” Justice Samuel A. Alito Jr. asked the plaintiffs’ attorney, Paul Hoffman, a longtime civil liberties lawyer from California.
      Earlier, Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy both signaled unmistakably that they saw no basis in international law for haling a foreign company into U.S. courts even for egregious human rights violations. Liberal justices made no headway in shoring up the case, even when Justice Ruth Bader Ginsburg noted the post-World War II precedent of holding I.G. Farben responsible for the German chemical firm's role in the Holocaust.
      Shell denies responsibility for the Abacha regime’s abuses — and perhaps the company was only a passive observer. U.S. courts could provide a forum for resolving that issue, but not if the Supreme Court gives foreign corporations a free pass as it appears inclined to do.