Verrilli Scores Well at Supreme Court Despite Questions

   For the past two Supreme Court terms, the justices waited until their last day to issue rulings in the year’s most closely watched cases: the challenges to the Affordable Care Act last year and the Defense of Marriage Act (DOMA) this year. In both cases, Solicitor General Donald Verrilli personally argued for the government, and in both cases the court ruled for the government — admittedly, by one-vote margins in both.
   With a record like that, one would expect Verrilli to be hailed as the Mariano Rivera of Supreme Court advocacy: he closes well in the most important contests. But instead Verrilli has been getting bad notices in the world of Supreme Court watchers.
   For the past two terms, the government — read: the Obama administration — has been getting its clock cleaned at the Supreme Court. According to a compilation by UCLA law professor Adam Winkler, the government was winning fewer than 40 percent of its cases at the Supreme Court as the justices were about to close their term in June. With four late cases added to Winkler’s count as published in The Daily Beast, the final record for the term is 11 wins and 17 losses – a 39 percent record.
   The government was also faring badly this term, according to Winkler, in cases where it participated as a non-party “friend of the court.” Once again combining Winkler’s count with the late-decided cases, the court ruled in favor of the government’s amicus positions in 13 cases and against its view in 17 — about a 43 percent record. Both of those figures are below the government’s historic batting average before the Supreme Court, according to Winkler. And Winkler says the government also lost “an unusually high number” of cases in the previous term.
   The results are somewhat unsurprising, given the clash between a liberal Democratic administration and a conservative court controlled by five Republican appointees. But some court watchers grumble that Verrillii himself bears part of the blame.
  In the courtroom, Verrilli suffers in comparison to his recent predecessors, including Elena Kagan, now a justice herself, and Paul Clement, now in private practice and the universally acclaimed best Supreme Court advocate of the past few years. To this courtroom observer, Verrilli comes off in comparison to those two and some other predecessors as softer spoken, not so amiable, less comfortable with attempted witticisms, and slower with effective retorts to skeptical questions from the bench.
   Despite any shortcomings at the lectern, Verrilli had a good win-loss record in the eight cases that he personally argued during the previous term. The court sided with the government in five, ruled against the government in two, and issued a no-decision of sorts in the other. A re-reading of the transcripts of those arguments shows Verrilli, at least in hindsight, to have been reasonably effective in setting out the government’s positions while fending off skeptical questions from one side of the bench or the other.
   Those losses came in cases that the Obama administration was fated to lose before the Roberts Court. In Shelby County v. Holder, Verrilli had no chance to persuade any of the court’s five conservatives to hold off from striking down part of the Voting Rights Act. Appearing as friend of the court in the affirmative action case, Fisher v. University of Texas, Verrilli similarly faced an uphill fight in urging the court to uphold UT’s race-conscious admissions policies. Still, Verrrilli’s defense of the limited use of race in admissions may have influenced the court’s final ruling to allow the practice but under stricter judicial scrutiny.
   From an opposite perspective, Verrrilli had no problem in Clapper v. Amnesty International in getting the five conservatives to reject the attempted constitutional challenge to the government’s post-9/11 warrantless wiretapping of electronic communications overseas. And the government also was the early favorite in the jurisdictional dispute in City of Arlington v. FCC even though Chief Justice John G. Roberts Jr. and two conservative colleagues ended up dissenting.
   In two other victories, Verrrilli argued nuanced government positions. In Association for Molecular Pathology v. Myriad Genetics, the court unanimously adopted the government’s precise position to bar patents for isolated human genes but allow patents for DNA synthesized in the laboratory. In the earlier case, Kiobel v. Royal Dutch Petroleum, the court agreed with the government to bar the suit by Nigerian nationals for the oil companies’ alleged complicity in human rights violations but adopted a stricter jurisdictional limitation than Verrrilli had presented.
   Verrilli and the administration deserve undoubted credit for its paradoxical victory in the DOMA case. The court’s 5-4 decision in United States v. Windsor vindicates the administration’s controversial decision two years ago to stop defending the law. Verrilli also urged the court to strike down California’s gay-marriage ban, Proposition 8. But during oral argument he said under questioning that the appeal should be dismissed for lack of standing — just as the court ultimately decided (Hollingsworth v. Perry).
    A year earlier, Verrilli had been openly criticized and even mocked for what was seen as a fumbling defense of the Affordable Care Act. Yet the court upheld the law after Roberts accepted the tax power argument that Verrilli had insisted on keeping in the government’s briefs, according to Josh Blackman’s account of the case in his book Unprecedented. So court watchers may need to be cautious in grading Verrrilli’s arguments at least until the court has issued the only grade that matters.

Religion, Law, Politics Mix on Contraception Issue

   When an Amish farmer claimed religious objections to paying Social Security taxes for his employees back in the 1980s, the Supreme Court had little difficulty in ruling against him. “When followers of a particular sect enter into commercial activity as a matter of choice,” Chief Justice Warren E. Burger wrote for a unanimous court in United States v. Lee (1982), “the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes that are binding on others in that activity.”
   Three decades later, the same issue is before the Supreme Court, but in a very different political context. The government program at issue in the current cases is not Social Security — a long established and popular success —  but one provision in President Obama’s Affordable Care Act, which is new and unpopular. And the religious belief at issue is not the idiosyncratic Amish opposition to government assistance, but the widely shared opposition among religious conservatives to contraception, especially the so-called Plan B emergency contraceptive, which some view as a drug to induce an abortion.
   The legal context has also changed. Under a law passed by Congress in 1993 — the Religious Freedom Restoration Act (RFRA) —  the federal government cannot abridge a person’s free exercise of religion except to serve a compelling government interest in the least restrictive manner possible —  the so-called “strict scrutiny” test.
   Despite the change in law, however, make no mistake: the cases that reached the court last week are politically driven and the outcome as likely as not to be determined by political as much as by legal considerations. Congress had sound reasons to require employers to include free coverage of contraceptives in their employee health plans. Those reasons would satisfy the strict-scrutiny test but for the political opposition to the Affordable Care Act found not only among politicians and the public but also within the federal judiciary, including at the Supreme Court.
   The two cases before the court both involve companies formed as closely held corporations by families whose members are opposed to abortion and to emergency contraception on religious grounds. The Mennonite Kahn family in Lancaster County, Pa., own a woodworking company, Conestoga Wood Specialities, with about 950 employees. David Green and his family, evangelical Christians, own (through a trust arrangement) the Oklahoma-based Hobby Lobby Stores, a chain of some 500 arts and crafts marts with 13,000 employees all told.
   The corporate status of the two companies raises a preliminary but potentially determinative issue that has divided the federal courts of appeals to rule on these cases so far: Does a secular, for-profit corporation have a constitutionally protected right to free exercise of religion? In the Conestoga case, the Third U.S. Circuit Court of Appeals said no. The free exercise right is “purely personal,” the court ruled in a 2-1 decision. The Sixth Circuit agreed in a decision issued last week [Sept. 17]. In the Hobby Lobby case, however, the Tenth U.S. Circuit Court of Appeals cited precedents recognizing free-exercise rights for churches organized as corporations and found no basis for treating for-profit corporations differently.
    The government and the administration’s supporters in the legal blogosphere are investing a lot of capital on this issue. Corporations, they note, do not enjoy all of the protections listed in the Bill of Rights. A corporation, for example, has no Fifth Amendment privilege against self-incrimination. But the five justices who found a broad right of political speech for corporations in the Citizens United case may see no reason not to recognize a corporation’s right to religious expression as well, especially since all five have been sensitive to free exercise claims in other contexts.
   So the administration needs to invest equally in defending the contraception mandate on the merits if the court agrees to hear the case (as seems likely) after considering the separate petitions filed by Conestoga and by the government in the Hobby Lobby case. And on the merits the Supreme Court’s reasoning in rejecting the Amish farmer’s case 30 years ago directly applies to the current issue.
   The tax system could not function, Burger wrote, if people could challenge it because tax payments were spent in a manner that violated their religious beliefs. Given the importance of maintaining a sound tax system, he concluded, “religious belief in conflict with the payment of taxes affords no basis for resisting the tax.”
   In enacting the Affordable Care Act, Congress and the president decided that the government has a strong interest as well in a health care system that, among other things, ensures adequate insurance coverage for preventive services, including contraception. Increased access to contraceptive services is important, the government argues in the Hobby Lobby case, because lack of contraceptive use can have “negative health consequences for both women and children.” The government also has a separate interest in ensuring equal access to health care for women, who pay more than men out of pocket for health care.
   Accommodating the Kahns, the Greens, and others like them would deny the employees of their companies the benefits of this government policy. It would also invite other exceptions, the government notes — for example, religious-based objections to immunizations. These are strong legal arguments, but they may not be enough for the five Roberts Court justices who have already shown themselves to be deeply skeptical of the Affordable Care Act’s major premises.

For Justice Kennedy, the Power of Being Earnest

  Supreme Court Justice Anthony M. Kennedy was at his most serious and most earnest as the keynote speaker at the annual meeting of the American Bar Association (ABA) in San Francisco last month [Aug. 10]. Greeting his audience as “fellow adherents to the rule of law,” Kennedy devoted the first half of a 26-minute speech to the national crisis in prison crowding before turning in the second half to the importance of civic education for young people.
   Kennedy had all the usual statistics about overincarceration in the United States: 2.1 million prisoners nationwide, including 160,000 in his home state of California — an imprisonment rate seven times greater than in England, France, or Germany. But he quoted as well from the Gospels — “I was in prison and ye came unto me” —  to stress the bar’s responsibility to address the crisis. Despite the prisoner’s offense, Kennedy concluded, “he or she is part of the family of humankind.”
   Kennedy was, if anything, even more didactic as he talked about instilling in young people a proper appreciation for “the meaning of freedom and its history.” “You cannot preserve what you have not studied,” the one-time constitutional law professor said. “You cannot protect what you do not comprehend. You cannot defend what you do not know.”
   Some in the press corps have been known to roll their eyes as Kennedy waxes lyrical in his speeches. His conservative critics — including his fellow justice, Antonin Scalia — sneer more pointedly when Kennedy veers into grandiloquence in his opinion. As one example, they cite Kennedy’s opening paean to the “transcendent dimensions” of individual liberty in his opinion for the court in Lawrence v. Texas (2003) striking down laws against gay sex.
   But make no mistake: Kennedy’s tendencies toward pomposity are nothing to be trifled with. Today, after a quarter-century on the court, Kennedy is clearly its most powerful individual member. Year after year, he is the justice with the fewest number of dissenting votes. “It’s the Roberts Court,” NBC’s Supreme Court correspondent remarked in his end-of-term wrap-up in June. “But Anthony Kennedy is the president and chief executive officer.”
   Kennedy is in fact more powerful than his former swing-vote colleague, Sandra Day O’Connor, who was given the title of “most influential justice” in Joan Biskupic’s biography a few years back. O’Connor’s tendency was to cast her often decisive vote in favor of splitting the difference between opposing views. Kennedy, by contrast, comes down hard on one side or the other: no muddled compromises in his majority opinions in closely divided decisions. Instead, as in Lawrence, Kennedy sets out explicit holdings, black-letter law for judges to follow with little of the case-by-case weighing that O’Connor often favored.
   As a result, Kennedy’s judicial legacy is of real, unmistakable consequence. And he has made his mark in areas that one might not have expected.
  Gay rights is the most recent and most obvious example. Kennedy authored the 5-4 decision in June, United States v. Windsor, that struck down the federal Defense of Marriage Act (DOMA), which barred marriage-based benefits to married gay and lesbian couples. He also wrote the court’s two previous gay rights landmarks: Lawrence and the earlier decision, Romer v. Evans (1996), that struck down a Colorado initiative barring the enactment of anti-gay discrimination laws.
  Gay rights advocates opposed Kennedy when he was nominated to the court in 1987, noting that he had ruled against gay rights plaintiffs in five cases while on the federal appeals court in California. With a keener eye, they might have recognized a gay rights supporter waiting to come out. In the first of the cases, Beller v. Middendorf (1981), Kennedy upheld the military’s policy of discharging homosexuals but only after acknowledging that “the choice to engage in homosexual action” might be “a fundamental right” entitled to “full protection as an aspect of the individual’s right to privacy.”
  Kennedy has also made his mark on sentencing issues. He has been the pivotal vote in a series of decisions beginning in 2002 that bar the death penalty for mentally retarded defendants, for juveniles, or in child rape cases. Kennedy also wrote the 2010 decision barring life without parole sentences for juveniles in non-homicide cases and led the follow-on decision to bar mandatory life without parole terms for juvenile murderers.
   As the court’s most consistent First Amendment supporter, Kennedy can also take credit for the string of rulings under Chief Justice John G. Roberts Jr. generally backing freedom of speech. Indeed, according to insider accounts, it was Kennedy who prevailed on Roberts in the campaign finance case, Citizens United v. Federal Election Commission (2010), to turn a narrow ruling into a broad guarantee of political speech rights for corporations.
   On the bench as in his writing, Kennedy is always in earnest. Other justices engage in an occasional joke or witticism, but Kennedy hardly ever if at all. He came to the court as a safe choice after the Senate rejected the combative conservative, Robert Bork, as outside the mainstream. Instinctively mild of manner, Kennedy might have been expected to recede to the background. Instead, with the court about to begin a new term, he once again is the justice that lawyers focus on as they fashion their arguments and the justice that court watchers watch as they handicap the term’s cases.

Syria, International Law, and Humanitarian Intervention

   As long ago as the mid-19th century, the British philosopher and uber-ethicist John Stuart Mill saw the need for a doctrine of humanitarian intervention in international law. It was “grave error,” Mill wrote, to assume that the same doctrine of non-intervention applicable to civilized nations also applies in relations between “civilized nations” and “barbarians.”
   Mill’s formulation provided a convenient rationalization for British and French imperialism and for the United States’ turn-of-the-century war of conquest against Spain. But a doctrine can be misused without being wrong. The 20th century’s history of humanitarian violations teaches the need to accept the doctrine as part of customary international law — and for the United States, as the dominant global power, to play its part in putting the doctrine into practice even without formal multilateral support.
   On that view, President Obama’s proposed strikes against Syria for its use of chemical weapons in its civil war passes international law muster, notwithstanding the United Nations Charter’s seeming limitations on the use of force. Just as the U.S. Constitution is not a suicide pact, the U.N. Charter cannot be interpreted as a one-sided disarmament pact by civilized nations against modern-day barbarians such as Syria’s Bashar al-Assad.
   International law is not the only or the most important issue for Congress to consider as it takes up a proposed resolution authorizing use of military force in Syria. President Obama owes it to members of Congress, not to mention the American public, to use his TV interviews and televised address this week to lay out in detail the evidence supporting the accusation that Assad’s regime launched a chemical weapons attack on Aug. 21 against rebel strongholds in the Damascus suburbs. As part of that evidence dump, the administration should explain its casualty count — 1,429 deaths — that is not only implausibly precise but also significantly higher than estimates from other, western sources.
   Most important, the administration needs to do a better job than it has thus far of showing that it has a strategy other than teaching Assad a lesson. Without putting boots on the ground, the administration still must show that some number of cruise missile strikes against Syrian military targets, combined with other U.S. actions, help the stated goal of replacing a dictatorial regime with a more representative, more inclusive government. And it needs to show that no other steps — such as economic sanctions or resort to the International Criminal Court, as advocated by New York Times columnist Thomas Friedman — would be effective.
   In addressing these issues, however, Congress can rest comfortably with the United States’ obligations toward international law. True, the simplest legal answer for this and other humanitarian crises would be to fall back on the U.N. Charter’s Chapter VII, which permits the use of force when authorized by the Security Council (Article 42) or in individual or collective self-defense (Article 51). Almost 70 years later, however, the U.N. Charter cannot bear the full weight of addressing modern-day humanitarian crises.
   The United Nations was founded, after all, by the victorious powers in a world war against nations that were committing both aggression and humanitarian violations on unprecedented scales. The five major powers, allies in that war, were each granted the power to veto any actions by the U.N. Security Council, the enforcement arm created to distinguish the new international organization from the toothless League of Nations.
   Wars of aggression have gone almost out of style since then, but genocide has become more common: think Cambodia, Rwanda, Serbia. At the same time, the World War II allies divided first into ideological camps and now into geostrategic rivalries. President Obama is correct to point out that, “for a whole host of reasons,” those divisions leave the Security Council “paralyzed” in many situations. “And yet,” he adds, “we’ve got all these international norms that we’re interested in upholding.”
   One of the clearest of those norms is the prohibition against the use of chemical weapons that dates from the Geneva Protocol on Gas Warfare, adopted in 1925. Obama is correct to say that this is the world’s “red line,” not his. Obama’s critics are correct to question his failure to take more decisive action toward Syria up to now. The mistakes of the past, however, will not be corrected by another.
   The critics are also right to question the precedential effect of the United States’ acting without the formal approval of the Security Council or a regional body such as NATO or the Arab League. Secretary of State John Kerry was right to answer, however, that the Arab League is, for various reasons, as paralyzed as the Security Council and that the United States does have support of individual nations with more direct interests. As for precedents, Rwanda shows the costs of inaction, Kosovo its potential benefits.
   The other precedent being established — seeking congressional approval for humanitarian intervention against actions that do not immediately threaten U.S. national security — has benefits as well. The president’s need to make the case to Congress strongly enough to overcome the public’s residual isolationism guards against too-easy resort to a doctrine that, for the good of international law, must be carefully cabined. The coming debates on Capitol Hill will test whether Obama can make that case and whether Congress can judge it, free of partisanship, with an eye to the United States’ interest in a better international order.

Ginsburg’s Unseemly Attack on “Activist” Court

   Politicians speak hyperbole as their native tongue, but Supreme Court justices are normally more careful with their facts and opinions. Over the past two months, however, Justice Ruth Bader Ginsburg has behaved more like a politician than a judge with an exaggerated attack on the Roberts Court as “one of the most activist” in history.
  Ginsburg made the criticism in a succession of media interviews over the past two months. The accusation is unsupported by the numbers and is all the more unseemly because Ginsburg paired it with a vow to stay on the Court, in effect as the leader of the opposition, as long as her physical and mental health hold up.
   “Activist” is an inherently imprecise term, but Ginsburg provided an objective metric: laws overturned. “If you take activism to mean readiness to strike down laws passed by Congress, I think the current Court will go down in history as one of the most active courts in that regard,” Ginsburg told USA Today’s Richard Wolf. 
   By that criterion, the Roberts Court thus far has been less activist than the previous Rehnquist and Burger Courts. In eight terms, the Roberts Court has explicitly ruled federal laws unconstitutional in 12 cases — or one-and-a-half per term. A compilation by the Library of Congress shows that the Rehnquist Court overturned 38 laws in Rehnquist’s 19 terms as chief justice: two per term. The Burger Court, in 17 terms, overturned federal laws in 31 cases — just shy of two per term.
   No doubt, the Roberts Court has more than a touch of judicial activism. With little respect for Congress or precedent, the Court in 2010 invalidated the federal ban on corporate and labor union spending in political campaigns, narrowed the Medicaid enforcement provision of President Obama’s Affordable Care Act in 2012, and nullified part of the Voting Rights Act as the 2012-2013 term ended in June.
   Three of the other Roberts Court decisions overturning federal laws, however, apply straightforward First Amendment principles in striking down free-speech restrictions. Ginsburg joined all three. Two others, barely noticed in general news media, struck down provisions dating from the 1980s that in one case expanded federal bankruptcy jurisdiction and in another limited the evidence for federal judges to consider in criminal sentencing. Ginsburg dissented in the former and joined the latter.
   Ginsburg also joined two more newsworthy Roberts Court decisions striking down federal laws: the 2008 decision to eliminate restrictions on habeas corpus rights for Guantanamo prisoners and this year’s decision to strike down the Defense of Marriage Act (DOMA). Ginsburg did not write separately in either case. But in oral arguments in the DOMA case Ginsburg made absolutely clear that she would vote to strike it down as unconstitutional discrimination against same-sex couples despite its nearly unanimous enactment by Congress.
   In all, Ginsburg joined six of the 12 Roberts Court decisions striking down federal laws. And Ginsburg would have nullified one federal law that the Court, in 2007, upheld: the federal ban on so-called partial birth abortions.
   In terms of state laws ruled unconstitutional, the Roberts Court pales in comparison to the two previous courts, according to a compilation by the legal web site Justia.com. The Rehnquist Court ruled state laws unconstitutional in 87 cases — more than four rulings per term; the Burger Court count is 235 – or nearly 14 per term. The Roberts Court has overturned state laws so far only in 11 decisions — fewer than one-and-a-half per term. Ginsburg joined five of those rulings, dissented in six.
   Raw numbers are not the only measure of the Court’s activism. Even with relatively few decisions, the Supreme Court engaged in strikingly bold bursts of activism by striking down the post-Civil War civil rights laws in the 19th century, nullifying the federal income tax and other progressive legislation in the late 19th and early 20th centuries, and overturning major New Deal programs in a three-year span in the mid-1930s. The Warren Court’s statistics on laws overturned — 17 federal laws, 128 state statutes—  understate the profound impact of its decisions outlawing racial segregation, mandating legislative reapportionment, and revolutionizing criminal procedure.
  Ginsburg would have dissented from those early bursts of activism, but she surely would have joined the celebrated Warren Court rulings. And, tellingly, Ginsburg first came to national prominence by crafting the legal strategy that led the Court to strike down federal and state laws that discriminated on the basis of sex.
   Ginsburg’s media offensive began with an interview to Reuters’ veteran Supreme Court watcher Joan Biskupic, in which the 80-year-old justice signaled her intention to stay on the Court despite any pressure from liberals to step aside to allow Obama to appoint a like-minded successor. She repeated that vow along with the criticism of the Roberts Court’s activism in successive interviews with USA Today, the Associated Press, the New York Times, and Bloomberg News.
   By preempting talk of retirement, Ginsburg appears to be trying to make herself the indispensable justice for the liberal wing. But playing the outside game seems ill designed to gain influence with justices in the other bloc, especially Anthony M. Kennedy — the only justice in the majority in all of the Roberts Court rulings striking down federal or state laws. With life tenure, however, Ginsburg is accountable only to herself and her own sense of how history will judge her two-decades-and-counting as a Supreme Court justice.