Roberts 4.1: Resetting or Refueling the Right-Wing Agenda?

      John Roberts will step through the maroon curtains promptly at 10 o’clock Monday morning [Oct. 1] to open a new Supreme Court term, his eighth as chief justice of the United States. Refreshed from a teaching gig in Malta and a family vacation in Maine, Roberts will tend to preliminaries and then call the first case: Kiobel v. Royal Dutch Petroleum Co., a major test for human rights litigation.
      From Day One of the new term, the question will be which John Roberts has returned to Washington to lead a court split down the middle between conservatives and liberals. Will it be the Radical Roberts: the Reagan administration alumnus who harbored ambitions back then of overruling Roe v. Wade, abolishing affirmative action, and eliminating the exclusionary rule? Or will it be the Restrained Roberts: the judicious chief justice who saved Obamacare, spared the Voting Rights Act, and rides herd on rambunctious conservative colleagues?
      Time will tell, but maybe sooner rather than later. The court’s first case gives the conservative bloc a chance to scrap three decades of lower court precedents that have allowed foreign victims of human rights violations abroad to sue their abusers in the U.S. court system. A more dramatic showdown looms the next week [Oct. 10] when the court takes up a challenge to race-conscious admissions in colleges and universities, Fisher v. University of Texas, just nine years after the court upheld such policies after a full airing of the issue.
      Judicial restraint and stare decisis — respect for precedent — tilt the scales one way in both cases, but not the way the conservative majority almost certainly wants to rule. Roberts, more than anyone else, will decide whether the conservatives’ wishes are to become the law of the land.
      Roberts’ four conservative colleagues voted this spring to invalidate the entirety of a 2,700-page law, President Obama’s signature domestic policy achievement, on the basis of a constitutional theory that was viewed as fanciful just three years earlier. Roberts disappointed them — angered them, according to the account leaked to CBS’s Jan Crawford — by saving the law and leaving its fate to “political branches.” The chief justice was pilloried in Republican and conservative circles for his betrayal.
      Under hostile fire, Roberts responded with his signature charm and wit. Speaking to a judicial conference on June 29 — one day after the ruling on the health care law — he joked that he would be spending the next two weeks teaching on the island of Malta, “an impregnable fortress.” “It seemed like a good idea,” he said. Asked at the same conference whether he favored any changes in Supreme Court rules, Roberts said he would eliminate “the odd historical quirk that the chief justice only gets one vote.”
      Roberts’ charm works wonders. The other justices in the conservative bloc are more than a bit charm-challenged. Antonin Scalia may be a delightful companion at the opera, but on the bench he is growing ever more argumentative, dogmatic, and churlish. Samuel A. Alito Jr. has yet to be seen to smile after six-and-half-years on the bench. Clarence Thomas’ silence over the same period is the outward manifestation of the rigid certitude that marks his jurisprudence. And then there is Anthony M. Kennedy, the pivotal vote on so many issues, whose earnestness must be as tiresome to his colleagues as it is to most of the Supreme Court press corps and many others.
      The court’s first two major cases for the term showcase the strength of the conservative bloc. The court heard arguments on Kiobel in February on the limited question whether corporations can be subject to liability under the Alien Tort Statute — in this case, Royal Dutch Petroleum for alleged complicity with the Nigerian military dictatorship in a brutal putdown of oil drilling protests. At Alito’s prompting, the court decided to ask for new arguments on the issue of whether human rights violations from abroad carried out by foreigners belong in U.S. courts at all. Court watchers infer that the answer is a done deal: no.
      In the University of Texas affirmative action case, the court granted review of the Fifth Circuit’s decision upholding the admissions policies despite procedural issues that would have doomed any appeal that the majority did not want to hear. The white plaintiff, Abigail Fisher, would not have been admitted to UT under the race-neutral policies that her lawyers advocate; and her only remaining claim is for the refund of her $100 application fee. Given the conservatives’ votes on other race-conscious policies, the only question seems to be not whether but how far they will go in limiting the use of race in admissions policies.
      Supreme Court scholars define a “natural court” as the time period with no changes in personnel on the court. By that definition, the court is now denominated as “Roberts 4,” the fourth different court of Roberts’ tenure. But Roberts’ pivotal vote in the health care case is at least as important a milestone as a new justice.
      Roberts has joined with the other conservatives in scrapping or bending precedents on issues ranging from campaign finance and gun rights to criminal law and civil litigation. Arguments in the first two major cases may give useful clues on whether Roberts wants to refuel that right-wing agenda or reset the court on a more restrained course.

Looking to Courts to Protect Cell Phone Privacy

      Justice Samuel A. Alito Jr. seems an unlikely leader of a pro-privacy bloc on the Supreme Court. But he assumed that role in last term’s decision that set some yet-to-be-defined limits on law enforcement use of global positioning system (GPS) surveillance to track suspected criminals.
      Now, the Orwellian specter of a government eye-in-the-sky that Alito identified in his concurring opinion in the case, United States v. Jones, seems to be coming to pass. A federal appeals court gave thumbs-up last month [Aug. 14] to federal agents’ monitoring of a drug suspect’s cell phone signals to track him across country. This is precisely the kind of no-touch electronic surveillance that Alito warned has become common in the wired world today.
      In Jones, the Supreme Court ruled that the government’s attachment of a GPS device to a suspect’s car amounts to a search subject to the Fourth Amendment’s requirement either to get a warrant or qualify for an exception to the warrant requirement. Writing for a five-justice majority, Justice Antonin Scalia reasoned by analogy that back in 1791 the Framers would not have taken kindly to a constable concealing himself inside a suspect’s carriage to gather evidence of criminal conduct.
      Alito, joined by three liberal justices, said Scalia’s simple approach leaves a more worrisome law enforcement threat to privacy untouched. He pointed to the increasingly widespread electronic tracking of our comings and goings that do not involve attaching any device to our vehicles. Examples: closed-circuit video monitoring in public areas and automated toll collection systems for drivers with an E-Z pass.
      Most significantly, Alito continued, “cell phones and other wireless devices now permit wireless carriers to track and record the location of users.” Many cell phone owners may appreciate this functionality: think of the hiker lost in the wilderness. But the cell phone signals tracked by the carrier can also be tracked by the police with the user unaware of being tailed.
      That’s what happened to truck driver Marshall Skinner in July 2006 as he headed east out of Tucson in an RV loaded with about 1,100 pounds of marijuana. Skinner was using a pay-as-you-go cell phone to keep in touch as he headed for his destination in Tennessee. Unbeknownst to Skinner, federal Drug Enforcement Administration (DEA) agents had gotten an order from a federal magistrate authorizing the phone company to release the information needed to monitor the cell phone’s “ping” data so they could track him on the drive.
      When Skinner pulled in for the night near Abilene, Texas, DEA agents were dispatched from Lubbock to go investigate. Skinner denied the agents’ request to search the vehicle, but they went in anyway after a drug-sniffing dog alerted them to the likely presence of narcotics.
      Indicted for drug and money laundering, Skinner sought to suppress the evidence on the ground that the agents’ use of GPS location information emitted from his cell phone was a warrantless search that violated the Fourth Amendment. The judge rejected the motion. Skinner was then convicted and sentenced to roughly 20 years in prison.
      In August, a three-judge panel of the Sixth U.S. Circuit Court of Appeals upheld the conviction. Writing for the majority, Judge John Rogers woodenly rejected Skinner’s invocation of a right to privacy. “When criminals use modern technological devices to carry out criminal acts and to reduce the possibility of detection, they can hardly complain when the police take advantage of the inherent characteristics of those very devices to catch them,” Rogers wrote in the decision. Judge Eric Clay joined Rogers’ opinion.
      In a concurring opinion, Judge Bernice Donaldson said the majority had misstated the issue. “The law affords the same constitutional protections to criminals and law-abiding citizens alike,” Donaldson explained. The issue, she continued, was “whether society is prepared to recognize a legitimate expectation of privacy in the GPS data emitted from any cell phone.” To that question, Donaldson said yes. But she joined in upholding the conviction by relying on the good-faith exception to the exclusionary rule.
      Donaldson’s view is reminiscent of the moment in the argument in the Jones case when Chief Justice John G. Roberts Jr. asked the government’s lawyer whether police could attach GPS devices to the justices’ cars. Suddenly, the case was no longer about criminals but about the constitutional protections for all of us — private citizens or even government officials.
      In his opinion, Alito conceded that technological developments are eroding our expectations of privacy. Even so, Alito argued, some lines need to be drawn. In Jones’ case, federal agents and Washington, D.C., police tracked his movements for 28 days until they finally nabbed him at a drug warehouse. With the evidence thrown out, the government is hoping to put together enough other information to convict Jones again in a trial set for January.
      The line-drawing, Alito suggested, might best be done by legislative bodies, which he said are “well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.” Alito considerably overestimates the abilities of Congress and state legislatures. For now, it seems more likely that protecting cell phone privacy will be up to the courts, including, ultimately, the Supreme Court.

Celebrating the Constitution in Questioning Times

      The Constitution marks its 225th anniversary this week [Sept. 17], but the occasion comes with much less hoopla than the celebration of its Bicentennial 25 years ago. Today, the longest standing national constitution in history is being re-examined critically by unlikely bedfellows on the left, right, and radical center. More troublingly, the Constitution is under an insidious attack from right-wing forces seeking to advance a political agenda in the name of the Constitution while fundamentally misrepresenting what the Framers believed and hoped to accomplish.
      The constructive rethinking about the Constitution is represented in the very long-shot effort to call a constitutional convention under a procedure never before used to amend the nation’s governing document. The Constitution’s Article V provides for two routes to amendments: proposals by Congress submitted to the states for ratification, the procedure used for the 27 amendments so far, or a convention called by Congress on application from legislatures of at least two-thirds of the states. Any amendments proposed by the convention would in turn have to be ratified by three-fourths of the states, by convention or legislative action, as determined by Congress.
      As detailed in my CQ Researcher report “Re-examining the Constitution” (Sept. 7), the groups pushing for a convention are ideologically diverse. Conservatives, including the Tea Party Patriots, want some form of federal budget control written into the Constitution. Liberals want to undo the Supreme Court’s recent decisions limiting the government’s ability to control spending in political campaigns. And some experts, notably University of Texas law professor Sanford Levinson, want to change some of the Constitution’s basic structure, including the equal representation of states in the Senate, the Electoral College and life tenure for Supreme Court justices.
      The push for a convention has little chance for success. Supporters face a host of questions about the rules for a convention, with no clear answers. And they face the daunting task of overcoming inertia as well as the fear of a “runaway” convention that would wreak havoc on a Constitution that has served the country somewhat well — at least since the Civil War. But some useful changes could come out of the effort, as happened in 1913 when Congress bowed to the effort to call a convention and approved the Seventeenth Amendment providing for popular election of U.S. senators.
      By contrast, much of the talk about the Constitution from the political right today is far from constructive. Instead, to quote the title of a new book by journalist and law professor Garrett Epps, it is Wrong and Dangerous. Epps details in his book 10 myths about the Constitution now being propagated by groups and individuals on the political right. [Disclosure: Epps is a college classmate, professional colleague, and personal friend.]
      The propagators of these myths, according to Epps, include public officials ranging from Justice Antonin Scalia and Republican Rep. Michele Bachmann, a Tea Party favorite, to commentators such as Glenn Beck and Rush Limbaugh. Think tanks such as the Heritage Foundation and Cato Institute provide an intellectual patina for the views, but no account is complete without mentioning the misleadingly titled National Center for Constitutional Studies, aptly described on Wikipedia as an “ultraconservative, religious-themed” organization. Epps attended one of NCCS’s seminars, where he learned — according to his account in The Nation — that the First Amendment established nondenominational Christianity as the national religion, states need not obey the Bill of Rights, and everything from Social Security to the Civil Rights Act of 1964 is unconstitutional.
      As Epps demonstrates in his book, these right-wing forces misread both history and the Constitution’s text. They believe, for example, that the Constitution was written to limit the powers of Congress and the national government being established. In fact, the “Federal Convention” was called precisely because the weak central government established by the Articles of Confederation was not up to the political, economic, and diplomatic challenges faced by the new republic.
      The constitutional mythmakers are nearly as wrong in contending that the Constitution does not separate church and state. As Epps notes, the Constitution itself prohibits any religious test for public office in the national government and the First Amendment protects freedom of religion specifically by prohibiting any establishment of religion by the national government. True, the Framers rejected James Madison’s proposal to prohibit any state from establishing religion, but — apart from Justice Clarence Thomas — everyone today concedes that the Religion Clauses apply equally to the states.
      Epps is especially cogent in rejecting the myth of originalism — or specifically the myth that the political right is true to the original meaning of the Constitution and everyone else confused, dishonest, or idiotic. Epps, a constitutional historian himself, agrees on the importance of trying to discern the Framers’ intent. But he says conservatives — specifically, Thomas and Scalia — use disingenuous techniques to legitimize their interpretations and try to discredit those of others: inventing “everybody knows” generalizations, hypothesizing what the Framers “probably” thought, and discounting any contrary evidence.
      The Framers likely would be surprised at the longevity of the document they wrote in the summer of 1787. They surely would be distressed at the cost in blood and treasure needed for its survival after the crisis of slavery and the Civil War. But survive it did, and likely will continue to survive. Despite questions and controversies, that is something to celebrate.

Obama's Uneven Record on Bush's Human Rights Mess

      President Obama spent much of his acceptance speech last week [Sept. 6] taking credit for his efforts to clean up the mess of an economy that the Bush administration left for him. But he spent no time at all touting his work in cleaning up the human rights mess that the Bush administration left him with its anti-terrorism policies at home and abroad.
      Obama had good reason to pass over the subject because his record on those issues falls even farther short of what he promised in his 2008 campaign than what the country had hoped for on the economy. The newly inaugurated president started well back in January 2009 by issuing orders to rescind the Bush administration’s torture policies and to close the CIA’s secret prison sites. And he set a one-year deadline for making good on his promise to close the prison camp at Guantanamo Bay, Cuba, which then held about 245 foreigners suspected of being “enemy combatants.”
      For the human rights community that invested so much hope in the former constitutional law professor, it has been mostly downhill ever since. Guantanamo remains open, its inmate count reduced by less than one third to 168 today. The Pentagon and Justice Department have tweaked the inherited system of military commissions, but few trials have been held. The system remains “second-class justice,” according to C. Dixon Osburn, director of the law and security program at Human Rights First.
      The administration also continues to invoke the state secrets privilege to cut off judicial inquiry into the CIA’s previous “rendition” program of transporting suspected terrorists to other countries for out-of-sight, out-of-mind abuse or torture. And last week the Justice Department announced that it has given up on prosecuting any CIA agents for the torture and abuse of detainees.
      The Obama administration has also created its own civil liberties issues. It has used the Bagram Air Base in Afghanistan to hold suspected terrorists and argued —so far successfully — for blocking those prisoners from access to federal courts. And it has expanded the use of drone aircraft for targeted killing of suspected al Qaeda members with what Osburn and others say are too few safeguards and too little public accountability.
      Obama does not deserve all the blame for the uneven record. The broad bipartisan support for closing Guantanamo at the end of the Bush administration dissolved as members of Congress realized that the prisoners would have to be housed somewhere in the United States — possibly in or near their own districts. Republicans, sensing a good issue, and Democrats wary of a soft-on-terrorism label combined to bar transfer of prisoners to U.S. soil and to impose difficult-to-meet restrictions on transfers to other countries.
      The congressional action prevents the administration from bringing any of the Guantanamo prisoners to the United States for trial in civilian federal courts. Meanwhile, the military commission system at Gitmo remains a work in very slow progress. Still awaiting a trial date are Khaled Sheikh Mohammed, the alleged mastermind of al Qaeda’s Sept. 11, 2001, attack, and four accused co-conspirators. “If these were in our federal courts,” Osburn says, referring to the cases in general, “they would all be done and whatever the verdicts they would be looked at as worthy and legitimate.”
      Legal skirmishes continue, at Guantanamo mostly out of the spotlight. This summer, the Pentagon imposed new restrictions on lawyers’ access to Guantanamo prisoners despite a standing order on the subject from the federal district court in Washington. Under the new rules, prisoners could meet with lawyers only if they had a pending habeas corpus action challenging their detention; they also limited lawyers’ access to classified information.
      In an opinion aptly characterized by the New York Times’s Charlie Savage as “scathing,” U.S. District Court Judge Royce Lamberth threw out the government’s new rules as “an illegitimate exercise of executive power.” Lamberth, appointed in 1987 by President Ronald Reagan, said the new rules effectively gave the government the ability to delay or cut off the inmates’ access to lawyers. That access is all the more important, Lamberth explained, because the prisoners speak little if any English and have virtually no understanding of the U.S. legal system.
      The rules probably originated at Guantanamo, not at the Pentagon, but even their short life suggest that Guantanamo has dropped off the radar screen for Washington and perhaps for the nation in general. “People have ceased to care about Guantanamo,” Andrea Prasow, senior counterterrorism counsel for Human Rights Watch, remarked in January on the tenth anniversary of the opening of the prison camp. The federal appeals court for the District of Columbia has sided with the government in most of the habeas corpus cases it has considered, and the Supreme Court has turned aside further appeals.
      In his acceptance speech, Obama naturally took credit for making progress in the war on terror that the Bush administration began. “Al Qaeda is on the path to defeat, and Osama bin Laden is dead,” Obama said. In a campaign focused on jobs and the economy, the president understandably saw nothing to be gained by taking credit for progress on human rights issues or promising to do more. That mess remains to be cleaned up, if ever.

Scalia's Flawed Book on Reading Law

      Justice Antonin Scalia spent his summer making the round of network interview programs promoting the new book that he co-authored with legal lexicographer Bryan Garner, Reading Law: The Interpretation of Legal Texts. From CNN to C-SPAN, Fox News to PBS, Scalia preached the wisdom, indeed the necessity, of his philosophy of “textualism” — defined as using the text of a statute as “the sole source” of its meaning.
      Scalia, trained in Jesuit schools, cast himself in the interviews as a guardian of the true faith besieged in a world of sinners, including “most of academia” and “knee jerk,” results-oriented editorial writers. But by softening his certitude with occasional humor and repeated protestations of judicial modesty, Scalia undoubtedly won over many viewers to his sheep-versus-wolves dichotomy of legal philosophy.
      That philosophy is subject to serious critique, but Scalia’s interlocutors faced daunting obstacles in cross-examining the justice. The book is long (414 pages of text) and dense. The interviewers — none of them lawyers — surely had too little time to read the book in its entirety, much less examine the sources and cases cited. Time did not allow close questioning, even in the long-form interviews on C-SPAN and CNN, and viewers probably would not have sat through it anyway.
      Scalia has now had his comeuppance, however, in a scathing review written by no less a figure than Richard Posner, the prominent federal appeals court judge in Chicago who is as well respected as Scalia in conservative quarters. Writing in The New Republic (posted Aug. 24; print issue dated Sept. 13), Posner accuses Scalia and his co-author of “a pattern of equivocation” throughout the book. And he backs up this critique with specific examples of cases in which the book conveys “distorted impressions” or even outright errors.
      Posner tangled before with Scalia, most notably after Posner criticized Scalia’s opinion for the court in District of Columbia v. Heller (2008) recognizing an individual right to possess firearms in the home for self-defense. Asked about Posner’s critique, Scalia acidly noted that he, Scalia, sits in judgment of Posner’s opinions, not vice versa.
      Under the headline “The Incoherence of Antonin Scalia,” Posner checks on some of Scalia’s citations and finds patent misrepresentations and revealing omissions. He knocks down Scalia’s insistence that a good dictionary — or some number of them — will generally provide the needed definition to interpret statutory text of unclear meaning.
      On that point, Posner quotes from the generally favorable foreword written by Judge Chief Frank Easterbrook, chief judge on the federal appeals court in Chicago and, like Posner and Scalia, an admired judicial conservative. Judges cannot rely simply on textualism, Easterbrook explains, “when the original meaning is lost to the passage of time — or when it was never really there but must be invented.”
      Posner makes the most devastating point, however, when he refutes Scalia’s insistence on the political neutrality of his textualist approach. Textualism is neither liberal or conservative, Scalia writes and explains, neither “strict” nor the opposite in construction. Not true, Posner says. “Text as such may be politically neutral,” Posner rejoins, “but textualism is conservative.”
      “A legislature is thwarted when a judge refuses to apply its handiwork to an unforeseen situation that is encompassed by the statute’s aim but is not a good fit with its text,” Posner explains. “Textualism hobbles legislation,” he continues, “and thereby tilts toward ‘small government’ and away from ‘big government,’ which in modern America is a conservative preference.”
      As Posner notes, Scalia and Garner are also “disingenuous” in characterizing other interpretive theories. Textual originalism, they write, is the “only objective standard of interpretation.” They dismiss what they call “nonoriginalism” and other alternative theories that they denominate as “purposivism” and “consequentialism.” But there are no such things. They are merely straw men — straw theories? — invented by Scalia and Garner.
      Despite the inconsistencies and exaggerations, Scalia can justly take credit for a seemingly more rigorous focus on statutory text in Supreme Court decisions in his quarter-century on the court. “Plain text” may now be the most commonly used two-word phrase in U.S. Reports. It is hard to imagine any justice writing, as Thurgood Marshall once did in an opinion mocked by Scalia, that if legislative history is ambiguous, judges “must look primarily to the statutes themselves to find the legislative intent” (Citizens for Overton Park v. Volpe, 1971).
      Scalia concedes, however, that even a true textualist cannot interpret statutes without the aid of rules — "canons” — of interpretation. He and Garner list 57: some of them familiar to law students, others obscure. Posner finds Scalia’s use of them inconsistent. Presumably, law students and professors will find ample material to explore the charge in law review articles over the next few years or longer. Suffice it to note that Scalia himself admits that he may have been inconsistent at times — perhaps because of the need to conform with precedent (stare decisis) or perhaps because of his own lapse into error.
      Scalia and Garner cast themselves as following in the footsteps of legal giants, beginning with the iconic English jurist Sir William Blackstone. And yet, as Posner notes, Scalia quotes Blackstone only 26 pages later as calling on judges to look to “the spirit and reason” of a law in deciphering ambiguous meanings in text. The contradiction is lost on Scalia, but fortunately he and his flawed book are not the “sole source” of wisdom on the subject.