The Supreme Court was no idle bystander in 1952 as school desegregation cases from five separate jurisdictions worked their way toward the nation’s highest tribunal. As Richard Kluger relates in his history Simple Justice, Chief Justice Fred M. Vinson personally called lawyers in cases from Delaware and the District of Columbia in the summer and early fall to suggest they file appeals with the court so that the cases could be consolidated with others already set for argument.
The landmark decision in Brown v. Board of Education came nearly two years after those maneuverings following Vinson’s death and the masterly work by his successor, Chief Justice Earl Warren, to produce a unanimous ruling against legally enforced racial segregation. Sixty years later, the Supreme Court now seems on the verge of a similar landmark decision, also after deft maneuvering and legal delay, to recognize a constitutional right to marriage for same-sex couples.
The Vinson Court was divided after oral arguments in the five cases in December 1952, but Kluger shows that a majority of the justices were ready immediately afterward to outlaw racial segregation and overrule the precedent that had sanctioned the practice, Plessy v. Ferguson (1896). One of the justices, Kentucky’s Stanley F. Reed, however, wanted to reaffirm Plessy; and three others — Vinson, Robert H. Jackson, and Tom C. Clark — preferred some kind of “wait-and-see approach.”
The current justices were likewise divided during and after arguments in a pair of same-sex marriage cases in March 2013. The 5-4 majority in United States v. Windsor (2013) favored same-sex couples by striking down the anti-gay Defense of Marriage Act (DOMA), but stopped short of recognizing a constitutional right to marriage for gay and lesbian couples. In the other case, Hollingsworth v. Perry (2013), a cross-ideological majority used a legal flaw to put off a direct ruling in the challenge to California’s Proposition 8.
Three of the conservative justices, however, used their dissents in Windsor to make their views on the ultimate issue plain. Antonin Scalia, in an opinion joined by Clarence Thomas, said that limiting marriage to opposite-sex couples was justified by “moral disapproval” of same-sex relationships and by other “valid” rationales that he deemed so “boring” that he did not even list them. Separately, Samuel A. Alito Jr. said that the “heated debate” about same-sex marriage should be decided not in the courts but by “the people, acting through their elected representatives at both the federal and state levels.”
Significantly, Chief Justice John G. Roberts Jr. kept his counsel on the issue. He dissented from the decision to strike down DOMA on both technical and substantive grounds, but he declined to join the sections in Scalia’s opinion defending same-sex marriage bans on their supposed merits.
The Vinson Court put off the day of reckoning on racial segregation by asking for new arguments on the history of the Fourteenth Amendment, a ploy suggested by Justice Felix Frankfurter. Vinson’s death in October 1953 paved the way for Warren to preside over the rearguments in December and to guide the court into the unanimous decision handed down on May 17, 1954.
A year-and-a-half of federal and state court decisions interpreting Windsor have provided the Roberts Court with more breathing space on the question of marriage equality. With near unanimity, lower courts have interpreted Justice Anthony M. Kennedy’s majority opinion in Windsor as fatally undermining the states’ arguments for limiting marriage to opposite-sex couples.
Perversely, the gay rights victories put off a final resolution of the issue by a couple of months. When the justices gathered at the end of September, they decided not to hear appeals by states seeking to reinstate same-sex marriage bans that had been struck down in three federal circuits. In the three months since, the court has similarly allowed lower federal courts to bring same-sex marriage rights to other states, most recently in Florida. When the Florida ruling takes effect on Jan. 6, same-sex couples will be able to marry in a total of 36 states plus the District of Columbia.
In November, however, the Sixth U.S. Circuit Court of Appeals upheld same-sex marriage bans enacted in four states: Kentucky, Michigan, Ohio, and Tennessee. Plaintiffs filed petitions for certiorari barely a week after, and three of the four states joined in urging the Supreme Court to issue a definitive ruling. The papers on the cases were distributed to the justices on Tuesday [Dec. 23] for them to consider at their Jan. 9 conference.
In the normal course of events, the justices could agree that day or later in January to hear some or all of the cases, in time for arguments in April and a decision by the end of June. Conceivably, the justices could find some basis to push the issue to the next term, but any delay now would seem political rather than legal.
Sixty years later, it seems inconceivable that the Supreme Court could have done anything in Brown other than outlaw racial segregation. The Roberts Court is unlikely to be unanimous on marriage rights: Scalia and Thomas have voted against allowing marriage rights to take effect on an interim basis. But the gay rights ruling that now seems only a matter of time may well strike future generations just as Brown does now as nothing more than “simple justice.”
Wednesday, December 24, 2014
Sunday, December 21, 2014
Justices ' Blind Eyes to Police Mistakes
The brake light case brought out a bit of whimsy from Chief Justice John G. Roberts Jr. as he summarized the Supreme Court’s decision from the bench last week [Dec. 15]. Most people, Roberts surmised, would be surprised to learn that you only need one brake light in North Carolina — “even if you are from North Carolina.”
The real issue in Heien v. North Carolina, however, was not brake lights, but the power that police are to be given under the law. And in a year when police conduct in the killing of civilians was a major national issue, the Supreme Court chose to give police more room for mistakes instead of stronger incentives to strictly follow the law.
By an 8-1 vote, the court held that a police officer can stop someone for violating a non-law — and use any evidence found in a subsequent search for a later prosecution — as long as the officer’s mistake about the law was a reasonable one. In a sharp dissent, Justice Sonia Sotomayor argued that a police officer’s actions in such an instance should be judged based on “the actual state of the law,” not the officer’s mistaken understanding.
The case began as a mundane traffic stop on Interstate 77 in Surry County, N.C., on the morning of April 29, 2009. Nicholas Heien was lying in the back seat of his car with friend, Maynor Javier Vasquez, driving. Patrolling the highway, Sgt. Matt Darisse, a Surry County sheriff’s deputy, thought Vasquez appeared stiff and nervous, decided to follow the car, and eventually pulled the car over after noticing one of the brake lights not working.
After checking the registration, Darisse was about to let the men off with a warning, but he became suspicious when the two men gave inconsistent answers about their destination. Darisse asked to search the vehicle; the two men agreed; and Darisse found a baggie of cocaine in the side compartment of a duffle bag. Heien eventually pleaded guilty to attempted trafficking, but reserved the right to appeal on Fourth Amendment grounds.
The Fourth Amendment prohibits not only an unreasonable search but also an unreasonable seizure. Despite the depictions on cop shows, police generally have no power to stop you on the street, or on the highway, unless they have reason to believe you are violating a law. Heien argued that Darisse had no authority for the traffic stop because North Carolina law requires only one working brake light, not two.
This gap in the law might seem counterintuitive, but the “plain text” of the applicable statute requires only that a car be “equipped with a stop lamp on the rear of the vehicle” (emphasis added). The North Carolina Court of Appeals agreed with Heien’s interpretation, ruled Darisse’s stop of the vehicle “objectively unreasonable,” and ruled the drugs found in the subsequent search inadmissible.
The North Carolina Supreme Court reinstated the conviction. Darisse had made a reasonable mistake, the state high court ruled. “An officer may make a mistake, including a mistake of law,” the court said, without violating the Fourth Amendment.
The U.S. Supreme Court had long held that police can make reasonable mistakes of fact without violating the Fourth Amendment, but had never explicitly allowed that same discretion for mistakes of law. To Roberts, the answer was obvious. The Fourth Amendment prohibits only unreasonable police conduct, Roberts stressed, and reasonable police can make reasonable mistakes not only as to the facts but also as to the law.
Roberts sought to qualify the holding. “The Fourth Amendment tolerates only reasonable mistakes,” he wrote, “and those mistakes — whether or fact or of law — must be objectively reasonable.” In a concurring opinion, liberal justices Elena Kagan and Ruth Bader Ginsburg emphasized the limitation. “[T]he government cannot defend an officer’s mistaken legal interpretation,” Kagan wrote, “on the ground that the officer was unaware of or untrained in the law.”
Among the justices, only Sotomayor, a former assistant district attorney in New York City, has actual experience in criminal justice at the local level. In that world, police often make mistakes, sometimes deadly ones. And police already have a lot of leeway not only for reasonable mistakes of fact but also for pretextual stops. In Whren v. United States (1996) the court ruled, unanimously, that the Fourth Amendment allows police to stop a car for a routine traffic violation even if the stop was a pretext for a different purpose — in that case, drug enforcement.
Sotomayor, attuned to the real-world consequences, said the court’s new decision would have the effect of “further eroding the Fourth Amendment’s protections of civil liberties in a context where that protection has already been worn down.” Giving police the power to stop a vehicle on the basis of a nonexistent law, she said, “significantly expands” their authority. The result, she said, is "bad for citizens” and “bad for police.”
The police who have been in the news in recent days — in Ferguson, Mo.; New York City; and Cleveland, for example — give no confidence that this added discretion will be applied with care — or evenhandedly as between white and black civilians. Think as well about Maricopa County’s blustery anti-immigrant sheriff Joe Arpaio or anti-gay officers in un-gay friendly jurisdictions around the country. The courts stand between them and law-abiding citizens, but the Supreme Court forgot that role in its decision last week.
The real issue in Heien v. North Carolina, however, was not brake lights, but the power that police are to be given under the law. And in a year when police conduct in the killing of civilians was a major national issue, the Supreme Court chose to give police more room for mistakes instead of stronger incentives to strictly follow the law.
By an 8-1 vote, the court held that a police officer can stop someone for violating a non-law — and use any evidence found in a subsequent search for a later prosecution — as long as the officer’s mistake about the law was a reasonable one. In a sharp dissent, Justice Sonia Sotomayor argued that a police officer’s actions in such an instance should be judged based on “the actual state of the law,” not the officer’s mistaken understanding.
The case began as a mundane traffic stop on Interstate 77 in Surry County, N.C., on the morning of April 29, 2009. Nicholas Heien was lying in the back seat of his car with friend, Maynor Javier Vasquez, driving. Patrolling the highway, Sgt. Matt Darisse, a Surry County sheriff’s deputy, thought Vasquez appeared stiff and nervous, decided to follow the car, and eventually pulled the car over after noticing one of the brake lights not working.
After checking the registration, Darisse was about to let the men off with a warning, but he became suspicious when the two men gave inconsistent answers about their destination. Darisse asked to search the vehicle; the two men agreed; and Darisse found a baggie of cocaine in the side compartment of a duffle bag. Heien eventually pleaded guilty to attempted trafficking, but reserved the right to appeal on Fourth Amendment grounds.
The Fourth Amendment prohibits not only an unreasonable search but also an unreasonable seizure. Despite the depictions on cop shows, police generally have no power to stop you on the street, or on the highway, unless they have reason to believe you are violating a law. Heien argued that Darisse had no authority for the traffic stop because North Carolina law requires only one working brake light, not two.
This gap in the law might seem counterintuitive, but the “plain text” of the applicable statute requires only that a car be “equipped with a stop lamp on the rear of the vehicle” (emphasis added). The North Carolina Court of Appeals agreed with Heien’s interpretation, ruled Darisse’s stop of the vehicle “objectively unreasonable,” and ruled the drugs found in the subsequent search inadmissible.
The North Carolina Supreme Court reinstated the conviction. Darisse had made a reasonable mistake, the state high court ruled. “An officer may make a mistake, including a mistake of law,” the court said, without violating the Fourth Amendment.
The U.S. Supreme Court had long held that police can make reasonable mistakes of fact without violating the Fourth Amendment, but had never explicitly allowed that same discretion for mistakes of law. To Roberts, the answer was obvious. The Fourth Amendment prohibits only unreasonable police conduct, Roberts stressed, and reasonable police can make reasonable mistakes not only as to the facts but also as to the law.
Roberts sought to qualify the holding. “The Fourth Amendment tolerates only reasonable mistakes,” he wrote, “and those mistakes — whether or fact or of law — must be objectively reasonable.” In a concurring opinion, liberal justices Elena Kagan and Ruth Bader Ginsburg emphasized the limitation. “[T]he government cannot defend an officer’s mistaken legal interpretation,” Kagan wrote, “on the ground that the officer was unaware of or untrained in the law.”
Among the justices, only Sotomayor, a former assistant district attorney in New York City, has actual experience in criminal justice at the local level. In that world, police often make mistakes, sometimes deadly ones. And police already have a lot of leeway not only for reasonable mistakes of fact but also for pretextual stops. In Whren v. United States (1996) the court ruled, unanimously, that the Fourth Amendment allows police to stop a car for a routine traffic violation even if the stop was a pretext for a different purpose — in that case, drug enforcement.
Sotomayor, attuned to the real-world consequences, said the court’s new decision would have the effect of “further eroding the Fourth Amendment’s protections of civil liberties in a context where that protection has already been worn down.” Giving police the power to stop a vehicle on the basis of a nonexistent law, she said, “significantly expands” their authority. The result, she said, is "bad for citizens” and “bad for police.”
The police who have been in the news in recent days — in Ferguson, Mo.; New York City; and Cleveland, for example — give no confidence that this added discretion will be applied with care — or evenhandedly as between white and black civilians. Think as well about Maricopa County’s blustery anti-immigrant sheriff Joe Arpaio or anti-gay officers in un-gay friendly jurisdictions around the country. The courts stand between them and law-abiding citizens, but the Supreme Court forgot that role in its decision last week.
Thursday, December 11, 2014
Torture Report: Worse Than We Realized
With Americans reeling from the shock of the September 11 terrorist attacks, President George W. Bush directed the Central Intelligence Agency (CIA) less than a week later to capture, detain, and interrogate those responsible for the attacks or possibly planning new ones. Two months later, CIA lawyers identified what they evidently regarded as a central issue.
“A policy decision must be made with regard to U.S. use of torture,” the lawyers wrote in a Nov. 26 memo entitled, “Hostile Interrogations: Legal Considerations for C.I.A. officers.” The lawyers noted that “a novel application” of the recognized legal defense of necessity “could be used to avoid prosecution of U.S. officials who tortured to obtain information that saved many lives.”
The memo came to light only this week [Dec. 9] as part of the 700-plus page report from the Senate Intelligence Committee issued after the committee’s six-year investigation of the CIA’s detention and interrogation policies. The committee’s majority Democrats disagreed with the Republican minority over the document’s import. Six of the panel’s GOP members noted in their minority views that the CIA lawyers went on to reject the hypothetical use of a necessity defense.
Still, the memo shows that “torture” was on the table even before the CIA had fashioned or started to use the tactics that the committee majority says were even more brutal than already reported. Throughout the Bush administration’s remaining seven years in office, the “T” word was banished from public statements. Instead, administration officials crafted the Orwellian phrase “enhanced interrogation tactics” for practices such as waterboarding recognized as torture when used by other countries but apparently not by the United States.
More than a decade later, CIA apologists still demur. On the PBS NewsHour [Dec. 10], former agency spokesman Bill Harlow rejected the T word in favor of the bureaucratic acronym “EITs.” But Intelligence Committee chair Dianne Feinstein, the California Democrat who has been if anything less critical of the CIA than warranted, finds no basis for ambiguity. “It is my personal conclusion,” Feinstein writes in the opening of the 526-page majority report, “that, under any common meaning of the term, CIA detainees were tortured.”
The issue is more than semantics. Torture is prohibited by domestic and international law, without exception. The Justice Department’s Office of Legal Counsel’s infamous memo written by John Yoo contended that the president had powers as commander in chief to authorize the use of torture despite the law, but the memo was repudiated by the OLC’s later director, Jack Goldsmith. And apart from legal considerations, “torture” is harder to sell to the public than “enhanced interrogation tactics,” even if polls indicate public support for torture if needed to save lives.
On that point, the Intelligence Committee majority is emphatic. The CIA’s interrogation tactics, the report concludes, did not save lives, thwart attacks, help capture high-value terrorists, or produce significant “actionable intelligence.” Feinstein, seven Democrats and Maine’s Democrat-caucusing-independent Angus King all subscribe to that proposition.
Maine’s somewhat independent Republican Susan Collins joined in the majority report, but wrote in separate views that she finds it unknowable whether the interrogation tactics were or were not effective. The committee’s Republican vice chairman, Georgia Saxby Chambliss, and five other Republicans insist the evidence shows the “enhanced” interrogations did produce information essential in, among other things, capturing 9/11 mastermind Khalid Sheikh Mohammad and thwarting several plotted attacks.
That debate, detailed in a New York Times graphic, will continue. Seemingly beyond dispute, however, is the Intelligence Committee’s finding that more detainees were tortured than previously reported — 39 in all — and that the tactics were more brutal than previously known. Readers with weak stomachs will want to skip the passages about the five detainees subjected to “rectal rehydration.” Bush himself was said to have flinched when told about a detainee who was chained to the ceiling of his cell and forced to urinate and defecate upon himself.
Bush was never fully briefed on the program, however, according to the report. Nor were the House and Senate intelligence committees, which supposedly oversee the CIA. The agency kept the very existence of the interrogation tactics secret from Secretary of State Colin Powell and Defense Secretary Donald Rumsfeld, fearful of opposition, especially from Powell. Once the cover was blown by the Washington Post in late 2005, however, the agency worked with compliant media contacts to selectively leak information and misinformation to depict the program as a success.
To top it all, the CIA managed the program with bureaucratic ineptitude. The military psychologists who designed the program — and received $81 million in fees for their company — knew nothing about al Qaeda or terrorism in general. Untrained interrogators were used, few records were kept, and some of those tortured were marginal figures at most. At the McLean headquarters, officials were often fuzzy on the details.
As for accountability, that is not going to happen. The most damning evidence — the videotapes – were destroyed on orders from spymaster Jose Rodriguez, with no one prosecuted. The Justice Department reiterated this week that there is no basis for criminal prosecutions. The president who might have been subject to impeachment is out of office; the major architects of the program are out of government, comfortable in the private sector or academia. But the committee at the least has put down one marker. “This and future Administrations,” Feinstein writes, must “ensure that coercive interrogations practices are not used by our government again.”
“A policy decision must be made with regard to U.S. use of torture,” the lawyers wrote in a Nov. 26 memo entitled, “Hostile Interrogations: Legal Considerations for C.I.A. officers.” The lawyers noted that “a novel application” of the recognized legal defense of necessity “could be used to avoid prosecution of U.S. officials who tortured to obtain information that saved many lives.”
The memo came to light only this week [Dec. 9] as part of the 700-plus page report from the Senate Intelligence Committee issued after the committee’s six-year investigation of the CIA’s detention and interrogation policies. The committee’s majority Democrats disagreed with the Republican minority over the document’s import. Six of the panel’s GOP members noted in their minority views that the CIA lawyers went on to reject the hypothetical use of a necessity defense.
Still, the memo shows that “torture” was on the table even before the CIA had fashioned or started to use the tactics that the committee majority says were even more brutal than already reported. Throughout the Bush administration’s remaining seven years in office, the “T” word was banished from public statements. Instead, administration officials crafted the Orwellian phrase “enhanced interrogation tactics” for practices such as waterboarding recognized as torture when used by other countries but apparently not by the United States.
More than a decade later, CIA apologists still demur. On the PBS NewsHour [Dec. 10], former agency spokesman Bill Harlow rejected the T word in favor of the bureaucratic acronym “EITs.” But Intelligence Committee chair Dianne Feinstein, the California Democrat who has been if anything less critical of the CIA than warranted, finds no basis for ambiguity. “It is my personal conclusion,” Feinstein writes in the opening of the 526-page majority report, “that, under any common meaning of the term, CIA detainees were tortured.”
The issue is more than semantics. Torture is prohibited by domestic and international law, without exception. The Justice Department’s Office of Legal Counsel’s infamous memo written by John Yoo contended that the president had powers as commander in chief to authorize the use of torture despite the law, but the memo was repudiated by the OLC’s later director, Jack Goldsmith. And apart from legal considerations, “torture” is harder to sell to the public than “enhanced interrogation tactics,” even if polls indicate public support for torture if needed to save lives.
On that point, the Intelligence Committee majority is emphatic. The CIA’s interrogation tactics, the report concludes, did not save lives, thwart attacks, help capture high-value terrorists, or produce significant “actionable intelligence.” Feinstein, seven Democrats and Maine’s Democrat-caucusing-independent Angus King all subscribe to that proposition.
Maine’s somewhat independent Republican Susan Collins joined in the majority report, but wrote in separate views that she finds it unknowable whether the interrogation tactics were or were not effective. The committee’s Republican vice chairman, Georgia Saxby Chambliss, and five other Republicans insist the evidence shows the “enhanced” interrogations did produce information essential in, among other things, capturing 9/11 mastermind Khalid Sheikh Mohammad and thwarting several plotted attacks.
That debate, detailed in a New York Times graphic, will continue. Seemingly beyond dispute, however, is the Intelligence Committee’s finding that more detainees were tortured than previously reported — 39 in all — and that the tactics were more brutal than previously known. Readers with weak stomachs will want to skip the passages about the five detainees subjected to “rectal rehydration.” Bush himself was said to have flinched when told about a detainee who was chained to the ceiling of his cell and forced to urinate and defecate upon himself.
Bush was never fully briefed on the program, however, according to the report. Nor were the House and Senate intelligence committees, which supposedly oversee the CIA. The agency kept the very existence of the interrogation tactics secret from Secretary of State Colin Powell and Defense Secretary Donald Rumsfeld, fearful of opposition, especially from Powell. Once the cover was blown by the Washington Post in late 2005, however, the agency worked with compliant media contacts to selectively leak information and misinformation to depict the program as a success.
To top it all, the CIA managed the program with bureaucratic ineptitude. The military psychologists who designed the program — and received $81 million in fees for their company — knew nothing about al Qaeda or terrorism in general. Untrained interrogators were used, few records were kept, and some of those tortured were marginal figures at most. At the McLean headquarters, officials were often fuzzy on the details.
As for accountability, that is not going to happen. The most damning evidence — the videotapes – were destroyed on orders from spymaster Jose Rodriguez, with no one prosecuted. The Justice Department reiterated this week that there is no basis for criminal prosecutions. The president who might have been subject to impeachment is out of office; the major architects of the program are out of government, comfortable in the private sector or academia. But the committee at the least has put down one marker. “This and future Administrations,” Feinstein writes, must “ensure that coercive interrogations practices are not used by our government again.”
Sunday, December 7, 2014
When Is a Facebook Rant a “True Threat?”
With the Vietnam War escalating, teenager Robert Watts signaled his opposition to President Lyndon B. Johnson’s policies by telling a political rally that if drafted and forced to carry a rifle, “the first man I want to get in my sights is L.B.J.” The government took Watts’ jibe seriously enough to prosecute him under a broadly written federal law that makes it a crime to “knowingly and willfully” threaten the president.
At the Supreme Court, however, the justices ruled, 6-3, that Watts was guilty only of “political hyperbole,” not a “true threat.” Watts’ statement, “taken in context,” had to be interpreted as constitutionally protected speech, the Court wrote in an unsigned opinion in Watts v. United States (1969).
Fast forward more than 40 years to a bitter divorce in 2010 marked by seemingly violent Facebook rants by Anthony Elonis against, among others, his wife Tara and an FBI agent who had been monitoring Elonis’s Internet posts. Elonis was prosecuted under the general federal law against threats, convicted, and sentenced to 44 months in prison.
On appeal to the Supreme Court, however, Elonis argued that his pseudonymous Facebook posts were “therapeutic” and not “true threats” at all. And his appeal in Elonis v. United States gained attention as a first-ever, high-level airing of how to apply free-speech rules to the new world of social media.
Free-speech groups, including the American Civil Liberties Union and leading media organizations, filed briefs supporting Elonis’s appeal even while dissociating themselves from what the ACLU called Elonis’s “crude and offensive” postings. They warned that, in upholding Elonis’s conviction, the Third U.S. Circuit Court of Appeals had found no need for prosecutors to prove that he actually intended to threaten physical harm to his wife or the FBI agent.
The free-speech concerns about the appeals court ruling may be well placed, but the Supreme Court ought not be misled into making Facebook a wild, wild West for violent postings. Social media need First Amendment breathing room, of course, but a smiley face or “LOL” is not enough to immunize what would be seen as a “true threat” if delivered in a face-to-face conversation, a telephone call, or an old-fashioned, written letter.
Representing the government, deputy U.S. solicitor general Michael Dreeben rightly noted in the arguments last week [Dec. 1] that threats “cause harm and disruption to society and to the individuals who are targeted” even if they seem unlikely, or even impossible, to be carried out. Speakers should be presumed to understand the meaning of words they speak, Dreeben contended, and should be held “accountable for the consequences of those words.”
Elonis’s postings clearly caused the kind of harm and disruption that Dreeben had in mind. After his wife obtained a “protection from abuse” order, Elonis asked on Facebook, “Is it thick enough to stop a bullet?” On the same day, he posted that he had “enough explosives to take care of the state police and the sheriff’s department.”
The next day, Elonis appeared to threaten a mass shooting at the kindergarten class at a local school. The school reported the post to the FBI, which sent agent Denise Stevens to Elonis’s home the next day. Elonis refused to be interviewed and, later that day, suggested in a Facebook post that he would be strapped with a suicide bomb if she returned.
Representing Elonis, Washington, D.C., appellate expert John Elwood argued that subjective intent was, and always has been, a necessary element of proof in a threat prosecution. But justices across the ideological spectrum questioned how, as a practical matter, the government could meet that burden. “How does one prove what’s in somebody else’s mind?” Justice Ruth Bader Ginsburg asked.
Elwood answered that in the digital world there would be abundant evidence on a cell phone or computer of a speaker’s state of mind. But Chief Justice John G. Roberts Jr. was unconvinced. He noted Elonis’s contention that the posts were either therapy or rap-style artistry. “Based on your submission,” Roberts told Elonis’s lawyer, “all he has to say is either . . . it’s therapeutic, it’s a good thing I could do this, or it’s art.”
Later, Justice Samuel A. Alito Jr. said Elwood’s argument amounted to “a roadmap for threatening a spouse and getting away with it.” “You put it in rhyme and put some stuff about the Internet on it,” Alito continued, “and you say, ‘I’m an aspiring rap artist.””
Less pointedly, some justices voiced concerns about overregulating. Roberts, for example, acknowledged Elwood’s point that social media are a distinct “subculture” and teenagers in particular could be sent to jail for what Elwood called “ill-timed, sarcastic comments.” Justice Sonia Sotomayor noted to Dreeben that the court has been reluctant to create new “exceptions” to the First Amendment. But Dreeben countered that the existing rules are “not an exception” to the First Amendment but “part of the implementation.”
Elonis has already served three years in prison, so the case is important mostly for the rule the justices will lay down. Social media already have more boorish language and conduct than needed. The Supreme Court needs to articulate a careful standard that can protect “true” political speech and satire on social media without giving free rein to those who would use the First Amendment as a license for threats of violence, laughing out loud through their posts.
At the Supreme Court, however, the justices ruled, 6-3, that Watts was guilty only of “political hyperbole,” not a “true threat.” Watts’ statement, “taken in context,” had to be interpreted as constitutionally protected speech, the Court wrote in an unsigned opinion in Watts v. United States (1969).
Fast forward more than 40 years to a bitter divorce in 2010 marked by seemingly violent Facebook rants by Anthony Elonis against, among others, his wife Tara and an FBI agent who had been monitoring Elonis’s Internet posts. Elonis was prosecuted under the general federal law against threats, convicted, and sentenced to 44 months in prison.
On appeal to the Supreme Court, however, Elonis argued that his pseudonymous Facebook posts were “therapeutic” and not “true threats” at all. And his appeal in Elonis v. United States gained attention as a first-ever, high-level airing of how to apply free-speech rules to the new world of social media.
Free-speech groups, including the American Civil Liberties Union and leading media organizations, filed briefs supporting Elonis’s appeal even while dissociating themselves from what the ACLU called Elonis’s “crude and offensive” postings. They warned that, in upholding Elonis’s conviction, the Third U.S. Circuit Court of Appeals had found no need for prosecutors to prove that he actually intended to threaten physical harm to his wife or the FBI agent.
The free-speech concerns about the appeals court ruling may be well placed, but the Supreme Court ought not be misled into making Facebook a wild, wild West for violent postings. Social media need First Amendment breathing room, of course, but a smiley face or “LOL” is not enough to immunize what would be seen as a “true threat” if delivered in a face-to-face conversation, a telephone call, or an old-fashioned, written letter.
Representing the government, deputy U.S. solicitor general Michael Dreeben rightly noted in the arguments last week [Dec. 1] that threats “cause harm and disruption to society and to the individuals who are targeted” even if they seem unlikely, or even impossible, to be carried out. Speakers should be presumed to understand the meaning of words they speak, Dreeben contended, and should be held “accountable for the consequences of those words.”
Elonis’s postings clearly caused the kind of harm and disruption that Dreeben had in mind. After his wife obtained a “protection from abuse” order, Elonis asked on Facebook, “Is it thick enough to stop a bullet?” On the same day, he posted that he had “enough explosives to take care of the state police and the sheriff’s department.”
The next day, Elonis appeared to threaten a mass shooting at the kindergarten class at a local school. The school reported the post to the FBI, which sent agent Denise Stevens to Elonis’s home the next day. Elonis refused to be interviewed and, later that day, suggested in a Facebook post that he would be strapped with a suicide bomb if she returned.
Representing Elonis, Washington, D.C., appellate expert John Elwood argued that subjective intent was, and always has been, a necessary element of proof in a threat prosecution. But justices across the ideological spectrum questioned how, as a practical matter, the government could meet that burden. “How does one prove what’s in somebody else’s mind?” Justice Ruth Bader Ginsburg asked.
Elwood answered that in the digital world there would be abundant evidence on a cell phone or computer of a speaker’s state of mind. But Chief Justice John G. Roberts Jr. was unconvinced. He noted Elonis’s contention that the posts were either therapy or rap-style artistry. “Based on your submission,” Roberts told Elonis’s lawyer, “all he has to say is either . . . it’s therapeutic, it’s a good thing I could do this, or it’s art.”
Later, Justice Samuel A. Alito Jr. said Elwood’s argument amounted to “a roadmap for threatening a spouse and getting away with it.” “You put it in rhyme and put some stuff about the Internet on it,” Alito continued, “and you say, ‘I’m an aspiring rap artist.””
Less pointedly, some justices voiced concerns about overregulating. Roberts, for example, acknowledged Elwood’s point that social media are a distinct “subculture” and teenagers in particular could be sent to jail for what Elwood called “ill-timed, sarcastic comments.” Justice Sonia Sotomayor noted to Dreeben that the court has been reluctant to create new “exceptions” to the First Amendment. But Dreeben countered that the existing rules are “not an exception” to the First Amendment but “part of the implementation.”
Elonis has already served three years in prison, so the case is important mostly for the rule the justices will lay down. Social media already have more boorish language and conduct than needed. The Supreme Court needs to articulate a careful standard that can protect “true” political speech and satire on social media without giving free rein to those who would use the First Amendment as a license for threats of violence, laughing out loud through their posts.
Sunday, November 30, 2014
In Ferguson, Prosecutors’ Fateful Mistake of Law
Edward Garner made off with a purse and $10 in cash after burglarizing a home in Memphis, Tenn., late on the evening of Oct. 3, 1974. He paid for his crime with his life when a Memphis police officer, Elton Hymon, shot him in the head as Garner fled on foot and ignored the officer’s shouted instruction to halt.
A Shelby County grand jury declined to bring any charges against Hymon for the shooting, but Garner’s father later filed a federal civil rights suit against Hymon and the city of Memphis for his son’s death. And when the case reached the U.S. Supreme Court, the justices ruled that the Tennessee law authorizing the use of deadly force to apprehend any suspected felon fleeing from police was unconstitutional.
“The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable,” Justice Byron R. White wrote for the 6-3 majority in Tennessee v. Garner (1985). White, a pro-law enforcement vote in most criminal procedure cases, concluded that the Fourth Amendment’s rule against “unreasonable” seizures allows the use of deadly force only if necessary to prevent the escape of a suspected felon who poses a physical threat to the officer or to others.
A decade after the Supreme Court ruling, a law professor who ran the numbers found a measurable decline in the number of police homicides over time. The drop was slightly greater in those states that formally found their deadly-force statutes unconstitutional than in those states that left laws inconsistent with the ruling on the books.
Missouri was among those states that never changed its unrestricted deadly-force law. So when the St. Louis County prosecutors assigned to the grand jury investigating the shooting death of Michael Brown went to the law books, they found a statute that had not been changed since 1979, six years before the Supreme Court’s ruling. And the prosecutors gave grand jurors that law on Sept. 16 as Ferguson, Mo., police officer Darren Wilson was about to testify before them and give his account of the fatal encounter with Brown.
It was more than three months later, on Nov. 21, when prosecutor Kathi Alizadeh confessed error to the grand jurors. Alizadeh told the grand jurors that she and colleague Shelia Whirley had found after additional “research” that the Missouri statute “does not comply with the case law.”
Back in September, the prosecutors had given the grand juror a printed copy of the Missouri deadly-force statute to have before them as Wilson testified. Now, Alizadeh told the grand jurors to “fold that in half so that you [ ] don’t necessarily rely on that. . . .” She proceeded to give the grand jurors a new sheet of paper — apparently not included in the materials released by the St. Louis County prosecutor’s office. The new handout “does correctly state” the law on use of deadly force, Alizadeh explained, but without specifying exactly what was wrong from the previous handout.
From the transcript, it does not appear that Alizadeh identified the Supreme Court’s decision by name or explained its holding or reasoning. She simply said that the previous explanation of the law had “something in it that’s not correct. Ignore it totally.”
Garner’s death 40 years earlier differed in significant respects from Brown’s fatal encounter on the afternoon of Aug. 9. Garner was slight of build: 5-foot-4 and 100 pounds, according to the evidence; Brown was bigger: 6-foot-2 and 280 pounds. Garner was suspected of nothing other than the alleged burglary; Brown had compounded his suspected offense — the theft of a package of cigarillos from a conveniences store — by a tussle of some sort with Wilson as the officer sat in his patrol car.
Most significantly, Hymon assumed Garner was unarmed and fired at Garner’s back. Wilson testified that he fired at Brown only after the teenager had reached inside his waistband, possibly for a gun, and had begun to charge at the officer. “At this point,” Wilson told the grand jurors, “I’m backpedaling pretty good because I know if he reaches me, he’ll kill me.”
Some witnesses disputed Wilson’s reconstruction of the events. According to those accounts, Brown had his hands up as though to surrender. In any event, Wilson never saw Brown with a weapon. And from his own words Wilson started out in pursuit of Brown not because he saw the teenager as a threat to himself or to others but only because he thought it his job to apprehend the fleeing suspect.
Three decades earlier, the Supreme Court had laid down a rule that catching a crook does not of itself justify a police officer in using deadly force. But grand jurors did not know of that rule when they initially listened to Wilson’s testimony. Instead, the grand jurors had in mind the prosecutors’ mistake of law that completely excused Wilson. Asking the grand jurors three months later to ignore the mistake was surely a fruitless attempt to unring the bell.
The grand jurors are barred by law from explaining their reasoning or even disclosing their vote. But even without the other mistakes by police and prosecutors in the case, the prosecutors’ ignorance of the current law on deadly force was enough to doom any chance for the grand jury to hold Wilson accountable at law for his actions.
A Shelby County grand jury declined to bring any charges against Hymon for the shooting, but Garner’s father later filed a federal civil rights suit against Hymon and the city of Memphis for his son’s death. And when the case reached the U.S. Supreme Court, the justices ruled that the Tennessee law authorizing the use of deadly force to apprehend any suspected felon fleeing from police was unconstitutional.
“The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable,” Justice Byron R. White wrote for the 6-3 majority in Tennessee v. Garner (1985). White, a pro-law enforcement vote in most criminal procedure cases, concluded that the Fourth Amendment’s rule against “unreasonable” seizures allows the use of deadly force only if necessary to prevent the escape of a suspected felon who poses a physical threat to the officer or to others.
A decade after the Supreme Court ruling, a law professor who ran the numbers found a measurable decline in the number of police homicides over time. The drop was slightly greater in those states that formally found their deadly-force statutes unconstitutional than in those states that left laws inconsistent with the ruling on the books.
Missouri was among those states that never changed its unrestricted deadly-force law. So when the St. Louis County prosecutors assigned to the grand jury investigating the shooting death of Michael Brown went to the law books, they found a statute that had not been changed since 1979, six years before the Supreme Court’s ruling. And the prosecutors gave grand jurors that law on Sept. 16 as Ferguson, Mo., police officer Darren Wilson was about to testify before them and give his account of the fatal encounter with Brown.
It was more than three months later, on Nov. 21, when prosecutor Kathi Alizadeh confessed error to the grand jurors. Alizadeh told the grand jurors that she and colleague Shelia Whirley had found after additional “research” that the Missouri statute “does not comply with the case law.”
Back in September, the prosecutors had given the grand juror a printed copy of the Missouri deadly-force statute to have before them as Wilson testified. Now, Alizadeh told the grand jurors to “fold that in half so that you [ ] don’t necessarily rely on that. . . .” She proceeded to give the grand jurors a new sheet of paper — apparently not included in the materials released by the St. Louis County prosecutor’s office. The new handout “does correctly state” the law on use of deadly force, Alizadeh explained, but without specifying exactly what was wrong from the previous handout.
From the transcript, it does not appear that Alizadeh identified the Supreme Court’s decision by name or explained its holding or reasoning. She simply said that the previous explanation of the law had “something in it that’s not correct. Ignore it totally.”
Garner’s death 40 years earlier differed in significant respects from Brown’s fatal encounter on the afternoon of Aug. 9. Garner was slight of build: 5-foot-4 and 100 pounds, according to the evidence; Brown was bigger: 6-foot-2 and 280 pounds. Garner was suspected of nothing other than the alleged burglary; Brown had compounded his suspected offense — the theft of a package of cigarillos from a conveniences store — by a tussle of some sort with Wilson as the officer sat in his patrol car.
Most significantly, Hymon assumed Garner was unarmed and fired at Garner’s back. Wilson testified that he fired at Brown only after the teenager had reached inside his waistband, possibly for a gun, and had begun to charge at the officer. “At this point,” Wilson told the grand jurors, “I’m backpedaling pretty good because I know if he reaches me, he’ll kill me.”
Some witnesses disputed Wilson’s reconstruction of the events. According to those accounts, Brown had his hands up as though to surrender. In any event, Wilson never saw Brown with a weapon. And from his own words Wilson started out in pursuit of Brown not because he saw the teenager as a threat to himself or to others but only because he thought it his job to apprehend the fleeing suspect.
Three decades earlier, the Supreme Court had laid down a rule that catching a crook does not of itself justify a police officer in using deadly force. But grand jurors did not know of that rule when they initially listened to Wilson’s testimony. Instead, the grand jurors had in mind the prosecutors’ mistake of law that completely excused Wilson. Asking the grand jurors three months later to ignore the mistake was surely a fruitless attempt to unring the bell.
The grand jurors are barred by law from explaining their reasoning or even disclosing their vote. But even without the other mistakes by police and prosecutors in the case, the prosecutors’ ignorance of the current law on deadly force was enough to doom any chance for the grand jury to hold Wilson accountable at law for his actions.
Wednesday, November 26, 2014
In Ferguson, Passive Prosecutors Let a Case Slip
When Detective Nick Amaro shot and seriously injured an unarmed black teenager on the TV program Law and Order: Special Victims Unit, the police brass and the district attorney’s office came down hard on him. Ignoring advice from his fellow officers, Amaro (played by actor Danny Pino) asked to go before the grand jury investigating the shooting to plead his case.
As seen in the Jan. 15, 2014, episode, Amaro faced hostile questions from grand jurors, but explained how he had mistaken a ricocheting bullet for the victim firing at one of his fellow officers. Amaro insisted he had followed police procedure in the shooting. His account, along with his distraught regret at the boy’s injuries, persuaded the grand jury not to indict him.
However fictitious the episode, it illustrates that it is not unheard of for the target of an investigation to appear before a grand jury. That is the route that Ferguson, Mo., police officer Darren Wilson took on Sept. 16 to tell his side of the Aug. 9 killing of the unarmed black teenager Michael Brown. Unlike the typical case, however, the two St. Louis County prosecutors in the grand jury room treated Wilson, the target of the investigation, with kid gloves, not as a potential defendant in a homicide case.
The 81-page transcript of Wilson’s testimony was released along with the rest of the testimony and evidence before the grand jury on Monday night [Nov. 24] as District Attorney Robert McCulloch announced the panel’s decision not to charge Wilson with any crime for the shooting. The transcript shows that prosecutors Sheila Whirley and Kathi Alizadeh allowed Wilson to tell his story with few interruptions and with nothing like the kind of challenging cross-examination one would expect.
The testimony makes clear there was ample probable cause to support an indictment, most likely for voluntary manslaughter, even if a conviction at trial was at best a long shot. Wilson’s testimony strains credulity at many points, but by his own account he chose to use deadly force instead of less lethal alternatives — mace or a baton — once the confrontation with Brown had begun. And Wilson’s claim that he feared for his life from a fist-swinging teenager simply mocks his supposed training as a police officer to deal with resisting suspects.
Wilson mishandled the confrontation from the moment he saw Brown and Brown’s friend Darien Johnson walking down the middle of the street on the afternoon in question. He never should have initiated the encounter from the vulnerable position inside his patrol car. Had Wilson followed proper police procedure and gotten out of the car, Brown would not have had him at a disadvantage in the fight that ensued.
As for the fight itself, Wilson’s description at the least exaggerates his physical injury. After taking two punches, Wilson said he felt that “a third one could be fatal.” But the hospital photograph taken afterward shows only minor swelling on the left side of his face. Even so, Wilson had quickly decided to use his weapon. “Once he was hitting me in the face,” he told the grand jury, “that enough was in my mind to authorize the use of force.”
The physical evidence does confirm Wilson’s testimony that Brown grabbed for the gun and that Wilson eventually fired at close range once he gained control of the weapon. An autopsy showed that Brown had gunpowder residue on his hand. When the shots caused Johnson and then Brown to flee, Wilson got out of the car and ordered them to halt and get on the ground. As Wilson told it, Brown instead turned, reached inside his waistband, and started to “charge.” Wilson fired 10 times, and Brown fell to the ground, fatally wounded.
A cross-examination could have probed Wilson’s account, but the prosecutors merely let it go. On the PBS NewsHour, two experts shook their heads in disbelief. Susan McGraugh, a law professor at St. Louis University, said the prosecutors were merely “pitching softballs” at Wilson. Christina Swarms, a one-time criminal defense lawyer and now director of litigation for the NAACP Legal Defense Fund, recalled that she often had her clients appear before grand juries. “I would love to have had my clients handled by prosecutors the way the prosecutors handled” Wilson, she said.
The prosecutors’ performance matched their boss’s passive attitude throughout the case. Throughout, McCulloch spoke only of presenting the evidence to the grand jury, not actually seeking an indictment. In his news conference, he described his office’s role not as prosecutors but as “legal advisers” to the grand jury.
Many in the Ferguson community and many others across the nation rightly feel that McCulloch simply punted the case to the grand jury. Prosecutors rely on cooperation with police, but McCulloch’s countywide office could have risked poisoning the well with the small Ferguson police department by taking a more assertive stance.
Now, Ferguson faces a challenging task of healing the breach between the predominantly white police department and the predominantly black citizenry. Wilson, who showed no remorse in his grand jury testimony, is reportedly resigning from the force. But more by way of reform will be needed in Ferguson and elsewhere to protect against the unnecessary deaths of civilians at the hands of those sworn to protect and serve, not to menace and kill.
As seen in the Jan. 15, 2014, episode, Amaro faced hostile questions from grand jurors, but explained how he had mistaken a ricocheting bullet for the victim firing at one of his fellow officers. Amaro insisted he had followed police procedure in the shooting. His account, along with his distraught regret at the boy’s injuries, persuaded the grand jury not to indict him.
However fictitious the episode, it illustrates that it is not unheard of for the target of an investigation to appear before a grand jury. That is the route that Ferguson, Mo., police officer Darren Wilson took on Sept. 16 to tell his side of the Aug. 9 killing of the unarmed black teenager Michael Brown. Unlike the typical case, however, the two St. Louis County prosecutors in the grand jury room treated Wilson, the target of the investigation, with kid gloves, not as a potential defendant in a homicide case.
The 81-page transcript of Wilson’s testimony was released along with the rest of the testimony and evidence before the grand jury on Monday night [Nov. 24] as District Attorney Robert McCulloch announced the panel’s decision not to charge Wilson with any crime for the shooting. The transcript shows that prosecutors Sheila Whirley and Kathi Alizadeh allowed Wilson to tell his story with few interruptions and with nothing like the kind of challenging cross-examination one would expect.
The testimony makes clear there was ample probable cause to support an indictment, most likely for voluntary manslaughter, even if a conviction at trial was at best a long shot. Wilson’s testimony strains credulity at many points, but by his own account he chose to use deadly force instead of less lethal alternatives — mace or a baton — once the confrontation with Brown had begun. And Wilson’s claim that he feared for his life from a fist-swinging teenager simply mocks his supposed training as a police officer to deal with resisting suspects.
Wilson mishandled the confrontation from the moment he saw Brown and Brown’s friend Darien Johnson walking down the middle of the street on the afternoon in question. He never should have initiated the encounter from the vulnerable position inside his patrol car. Had Wilson followed proper police procedure and gotten out of the car, Brown would not have had him at a disadvantage in the fight that ensued.
As for the fight itself, Wilson’s description at the least exaggerates his physical injury. After taking two punches, Wilson said he felt that “a third one could be fatal.” But the hospital photograph taken afterward shows only minor swelling on the left side of his face. Even so, Wilson had quickly decided to use his weapon. “Once he was hitting me in the face,” he told the grand jury, “that enough was in my mind to authorize the use of force.”
The physical evidence does confirm Wilson’s testimony that Brown grabbed for the gun and that Wilson eventually fired at close range once he gained control of the weapon. An autopsy showed that Brown had gunpowder residue on his hand. When the shots caused Johnson and then Brown to flee, Wilson got out of the car and ordered them to halt and get on the ground. As Wilson told it, Brown instead turned, reached inside his waistband, and started to “charge.” Wilson fired 10 times, and Brown fell to the ground, fatally wounded.
A cross-examination could have probed Wilson’s account, but the prosecutors merely let it go. On the PBS NewsHour, two experts shook their heads in disbelief. Susan McGraugh, a law professor at St. Louis University, said the prosecutors were merely “pitching softballs” at Wilson. Christina Swarms, a one-time criminal defense lawyer and now director of litigation for the NAACP Legal Defense Fund, recalled that she often had her clients appear before grand juries. “I would love to have had my clients handled by prosecutors the way the prosecutors handled” Wilson, she said.
The prosecutors’ performance matched their boss’s passive attitude throughout the case. Throughout, McCulloch spoke only of presenting the evidence to the grand jury, not actually seeking an indictment. In his news conference, he described his office’s role not as prosecutors but as “legal advisers” to the grand jury.
Many in the Ferguson community and many others across the nation rightly feel that McCulloch simply punted the case to the grand jury. Prosecutors rely on cooperation with police, but McCulloch’s countywide office could have risked poisoning the well with the small Ferguson police department by taking a more assertive stance.
Now, Ferguson faces a challenging task of healing the breach between the predominantly white police department and the predominantly black citizenry. Wilson, who showed no remorse in his grand jury testimony, is reportedly resigning from the force. But more by way of reform will be needed in Ferguson and elsewhere to protect against the unnecessary deaths of civilians at the hands of those sworn to protect and serve, not to menace and kill.
Sunday, November 23, 2014
On Immigration, Obama on Sound Legal Ground
President
Obama has powerful legal arguments on his side to defend his
decision to protect approximately 4 million undocumented aliens from the threat
of deportation. But Obama weakened his case in the court of public opinion by
the politically motivated decision to defer formalizing this policy until after
the midterm congressional elections.
The 33-page legal memorandum by the Justice Department’s Office of Legal Counsel (OLC) provides a well-reasoned and well-documented conclusion that the president’s policy is “a permissible exercise of [the Department of Homeland Security’s] discretion to enforce the immigration laws.” As the memorandum explains, the policy specifies somewhat restrictive criteria for eligibility for the time-limited protection from deportation and limits the legal rights or benefits for immigrants covered by the policy: work permits, yes; health benefits, no; and no legalization or path to citizenship.
The memorandum cites Supreme Court precedents, congressional enactments, and longstanding regulations as legal authority. The categorical protection for immigrants who have been in theUnited
States
The OLC memo gains credibility by its second conclusion that the same protection from deportation — in legal parlance, “deferred action” — cannot be extended to the parents of immigrants who have been previously been granted that status. The memo finds “no precedent for using deferred action to respond to humanitarian concerns arising from previous exercise of deferred action.”
The strong legal and policy arguments in support of the policy all but destroys the administration’s justification for delaying the move until after the midterm elections. All of the reasons for the policy were just as strong a year ago as they are now. Arguably, Obama needed to delay until time had effectively run out for the House of Representatives to act on the immigration reform bill already passed by the Senate.
By September, however, the administration had no reason for further delay except to avoid political damage to Democratic candidates from attacks by anti-immigration Republicans. Ironically, many political observers think the administration’s calculation backfired by reducing Latino voters’ turnout for Democratic candidates without in any way lessening the anti-Obama sentiment among Republicans and independents.
The political debate over the policy is quickly moving into the courts. Joe Arpaio, the anti-immigrant sheriff ofMaricopa County , Ariz. , immediately vowed to sue over the policy; two Tennessee
In a different era, legal observers could confidently predict that the courts would steer clear of what is clearly a political dispute. The regrettable reality these days, however, is that partisan politics have spilled over into the courts. Witness the rulings on same-sex marriage. With one exception, the few federal judges to reject marriage rights for same-sex couples have all been Republican appointees. And GOP-appointed judges have been behind the legal setbacks dealt so far to the Affordable Care Act.
Beyond releasing the OLC memo, the administration is touting a letter defending the immigration policy signed by 10 constitutional scholars ranging from the Harvard liberal Laurence Tribe to the University of Chicago conservative Eric Posner. The signers acknowledge differences over immigration policy but join in concluding that the “executive actions” announced by Obama are “lawful.”
The OLC memo answers some of the criticisms of Obama’s move heard before the president’s announcement and since. Executive discretion in granting “deferred action” is well established, the memo says, as long as the status can be withheld on a case-by-case basis. Among five precedents cited is the move by President George H.W. Bush in 1990 to grant deferred-action status to approximately 1.5 million parents and children of aliens granted legal status under the 1986 amnesty approved by Congress and signed by another Republican president, Ronald Reagan.
Other similar moves since then have granted deferred-action status to victims of domestic violence and human trafficking. Most recently, Obama’s so-called Deferred Action for Childhood Arrivals program (DACA) removed the threat of deportation from the self-styled “Dreamers,” the under-30 immigrants who for the most part have known no other country than theUnited States
The OLC memo discloses that the office gave oral instead of written approval for Obama’s earlier move, but the information only underscores the more formal green-light for the latest move. The memo also acknowledges that the latest move benefits more immigrants than any of the similar precedents, but finds the size irrelevant to its validity as long as the policy does not amount to an “abdication” of enforcing immigration laws.
Obama took to the political hustings immediately to argue and rally support for his policy even as Republicans mounted sharp political attacks. When the litigation begins, judges will face the challenging task of tuning out the politics and focusing only on the law, which strongly supports Obama’s position.
The 33-page legal memorandum by the Justice Department’s Office of Legal Counsel (OLC) provides a well-reasoned and well-documented conclusion that the president’s policy is “a permissible exercise of [the Department of Homeland Security’s] discretion to enforce the immigration laws.” As the memorandum explains, the policy specifies somewhat restrictive criteria for eligibility for the time-limited protection from deportation and limits the legal rights or benefits for immigrants covered by the policy: work permits, yes; health benefits, no; and no legalization or path to citizenship.
The memorandum cites Supreme Court precedents, congressional enactments, and longstanding regulations as legal authority. The categorical protection for immigrants who have been in the
The OLC memo gains credibility by its second conclusion that the same protection from deportation — in legal parlance, “deferred action” — cannot be extended to the parents of immigrants who have been previously been granted that status. The memo finds “no precedent for using deferred action to respond to humanitarian concerns arising from previous exercise of deferred action.”
The strong legal and policy arguments in support of the policy all but destroys the administration’s justification for delaying the move until after the midterm elections. All of the reasons for the policy were just as strong a year ago as they are now. Arguably, Obama needed to delay until time had effectively run out for the House of Representatives to act on the immigration reform bill already passed by the Senate.
By September, however, the administration had no reason for further delay except to avoid political damage to Democratic candidates from attacks by anti-immigration Republicans. Ironically, many political observers think the administration’s calculation backfired by reducing Latino voters’ turnout for Democratic candidates without in any way lessening the anti-Obama sentiment among Republicans and independents.
The political debate over the policy is quickly moving into the courts. Joe Arpaio, the anti-immigrant sheriff of
In a different era, legal observers could confidently predict that the courts would steer clear of what is clearly a political dispute. The regrettable reality these days, however, is that partisan politics have spilled over into the courts. Witness the rulings on same-sex marriage. With one exception, the few federal judges to reject marriage rights for same-sex couples have all been Republican appointees. And GOP-appointed judges have been behind the legal setbacks dealt so far to the Affordable Care Act.
Beyond releasing the OLC memo, the administration is touting a letter defending the immigration policy signed by 10 constitutional scholars ranging from the Harvard liberal Laurence Tribe to the University of Chicago conservative Eric Posner. The signers acknowledge differences over immigration policy but join in concluding that the “executive actions” announced by Obama are “lawful.”
The OLC memo answers some of the criticisms of Obama’s move heard before the president’s announcement and since. Executive discretion in granting “deferred action” is well established, the memo says, as long as the status can be withheld on a case-by-case basis. Among five precedents cited is the move by President George H.W. Bush in 1990 to grant deferred-action status to approximately 1.5 million parents and children of aliens granted legal status under the 1986 amnesty approved by Congress and signed by another Republican president, Ronald Reagan.
Other similar moves since then have granted deferred-action status to victims of domestic violence and human trafficking. Most recently, Obama’s so-called Deferred Action for Childhood Arrivals program (DACA) removed the threat of deportation from the self-styled “Dreamers,” the under-30 immigrants who for the most part have known no other country than the
The OLC memo discloses that the office gave oral instead of written approval for Obama’s earlier move, but the information only underscores the more formal green-light for the latest move. The memo also acknowledges that the latest move benefits more immigrants than any of the similar precedents, but finds the size irrelevant to its validity as long as the policy does not amount to an “abdication” of enforcing immigration laws.
Obama took to the political hustings immediately to argue and rally support for his policy even as Republicans mounted sharp political attacks. When the litigation begins, judges will face the challenging task of tuning out the politics and focusing only on the law, which strongly supports Obama’s position.
Sunday, November 16, 2014
In Alabama, Still Segregating Voters by Race
The white political establishment in Tuskegee, Ala., hit on a simple way in the late 1950s to hold on to power despite the city’s growing black population. The state legislature simply redrew the city’s boundary lines into what the Supreme Court later described as “a strangely irregular 28-sided figure.” The new boundaries fenced out all but a few of the 40 0 African Americans who had been living within Tuskegee’s city limits and no white voters.
The Supreme Court in 1960 had no difficulty in spotting an apparent violation of the political rights of the city’s black population. In a unanimous decision, the court ruled in Gomillon v. Lightfoot that segregating the city’s residents by race violated either the Fifteenth Amendment’s protection of voting rights or (according to one justice) the Fourteenth Amendment’s Equal Protection Clause.
Drawing legislative districts is more complicated than drawing city limits, and the process is all the more complicated thanks to a series of Supreme Court decisions and congressional enactments beginning in the 1960s. But Alabama’s white political establishment, functioning through the state’s Republican Party, has nevertheless found a way to neuter the political strength of black Alabamians, who comprise about one-fourth of the state’s population.
With Republicans controlling both houses of the state legislature, GOP lawmakers drew up new district lines after the 2010 census that packed African Americans into districts that already had black majorities. The line-drawing helped ensure that African Americans hold about one-fourth of the seats in both chambers, but it also limited any ability of black voters to form effective coalitions with white Democratic voters in other districts.
Black legislators and the biracial Democratic Conference challenged the redistricting plan in federal court as a violation of political rights protected either by the Constitution or the federal Voting Rights Act. A divided three-judge court upheld the plan. And in Supreme Court arguments last week [Nov. 12], conservative justices led by Chief Justice John G. Roberts Jr. appeared ready to reward Alabama Republicans with a decision upholding the racial line-drawing as nothing more than partisan redistricting politics as usual.
Alabama’s Republican solicitor general, Andrew Brasher, told the justices that the plan was aimed at protecting African American voters’ ability to elect candidates of their choice while complying with the Supreme Court’s “one person, one vote” rule for equal-population districts. Liberal justices — in particular, Elena Kagan — appeared sympathetic to the plaintiffs’ arguments that the state had adopted an unnecessarily strict standard for equal population so as to reduce rather than protect African Americans’ influence at the polls.
The seemingly simply “one person, one vote” rule became much more complicated with a series of Supreme Court decisions starting in the 1990s that limit the use of race in drawing district lines. Under the rulings, race cannot be the “predominant” factor in drawing district lines in comparison to race-neutral considerations, such as compactness. At the same time, redistricting must comply with Voting Rights Act requirements to prevent any “retrogression” in minority voters’ ability to elect candidates of their choice.
Roberts saw the state as facing conflicting demands to add enough black voters to underpopulated districts to preserve their political strength but not so many as to “pack” those districts and limit their influence in others. “They have to hit this sweet spot between those two extremes without taking race predominantly into consideration?” Roberts said in a rhetorical question to the black legislators’ lawyer, New York University law professor Richard Pildes.
Brasher gladly accepted Roberts’s description of the state’s delicate task and defended its solution under sharp questioning from liberals Kagan and Ruth Bader Ginsburg. Brasher explained that the state had adopted a maximum range of 2 percent deviation between districts’ population. In addition, the redistricting plan avoided any reduction in the black percentages in majority-black districts so as to avoid so-called “retrogression” of minority rights.
Kagan bluntly described the argument as “a mistaken understanding of what retrogression entails.” Ginsburg echoed the point. “If that’s a misunderstanding of what [the Voting Rights Act] requires,” she said, “then the whole thing is infected by that mistake.”
Ironically, the default argument for upholding the redistricting plan may be to defend the whole thing as a partisan exercise by Republican legislators to protect the party’s interest at the expense of opposition Democrats. The Supreme Court has ruled, in theory, that political gerrymandering can go too far, but it has never found one that went too far. And two justices, Antonin Scalia and Clarence Thomas, would bar judicial review of partisan line-drawing altogether.
The justices seemed both divided and uncertain after 70 minutes of argument in the case, Alabama Legislative Black Conference v. Alabama. In a nuanced presentation, Solicitor General Donald Verrilli presented the Obama administration’s position that the case should be sent back for further proceedings to examine the role that race played in regard to individual districts.
The legal complexities had the effect, however, of obscuring the underlying political realities. Republicans in Alabama and elsewhere in the South are quite happy to segregate voters by race these days. Black voters packed into majority-minority districts elect enough black Democrats to satisfy the Voting Rights Act, but not enough to have political power, and white Democrats are a vanishing species in office. The tactics are more subtle than those of the bad old days, but hardly faithful to the constitutional principle of equal political rights for all.
The Supreme Court in 1960 had no difficulty in spotting an apparent violation of the political rights of the city’s black population. In a unanimous decision, the court ruled in Gomillon v. Lightfoot that segregating the city’s residents by race violated either the Fifteenth Amendment’s protection of voting rights or (according to one justice) the Fourteenth Amendment’s Equal Protection Clause.
Drawing legislative districts is more complicated than drawing city limits, and the process is all the more complicated thanks to a series of Supreme Court decisions and congressional enactments beginning in the 1960s. But Alabama’s white political establishment, functioning through the state’s Republican Party, has nevertheless found a way to neuter the political strength of black Alabamians, who comprise about one-fourth of the state’s population.
With Republicans controlling both houses of the state legislature, GOP lawmakers drew up new district lines after the 2010 census that packed African Americans into districts that already had black majorities. The line-drawing helped ensure that African Americans hold about one-fourth of the seats in both chambers, but it also limited any ability of black voters to form effective coalitions with white Democratic voters in other districts.
Black legislators and the biracial Democratic Conference challenged the redistricting plan in federal court as a violation of political rights protected either by the Constitution or the federal Voting Rights Act. A divided three-judge court upheld the plan. And in Supreme Court arguments last week [Nov. 12], conservative justices led by Chief Justice John G. Roberts Jr. appeared ready to reward Alabama Republicans with a decision upholding the racial line-drawing as nothing more than partisan redistricting politics as usual.
Alabama’s Republican solicitor general, Andrew Brasher, told the justices that the plan was aimed at protecting African American voters’ ability to elect candidates of their choice while complying with the Supreme Court’s “one person, one vote” rule for equal-population districts. Liberal justices — in particular, Elena Kagan — appeared sympathetic to the plaintiffs’ arguments that the state had adopted an unnecessarily strict standard for equal population so as to reduce rather than protect African Americans’ influence at the polls.
The seemingly simply “one person, one vote” rule became much more complicated with a series of Supreme Court decisions starting in the 1990s that limit the use of race in drawing district lines. Under the rulings, race cannot be the “predominant” factor in drawing district lines in comparison to race-neutral considerations, such as compactness. At the same time, redistricting must comply with Voting Rights Act requirements to prevent any “retrogression” in minority voters’ ability to elect candidates of their choice.
Roberts saw the state as facing conflicting demands to add enough black voters to underpopulated districts to preserve their political strength but not so many as to “pack” those districts and limit their influence in others. “They have to hit this sweet spot between those two extremes without taking race predominantly into consideration?” Roberts said in a rhetorical question to the black legislators’ lawyer, New York University law professor Richard Pildes.
Brasher gladly accepted Roberts’s description of the state’s delicate task and defended its solution under sharp questioning from liberals Kagan and Ruth Bader Ginsburg. Brasher explained that the state had adopted a maximum range of 2 percent deviation between districts’ population. In addition, the redistricting plan avoided any reduction in the black percentages in majority-black districts so as to avoid so-called “retrogression” of minority rights.
Kagan bluntly described the argument as “a mistaken understanding of what retrogression entails.” Ginsburg echoed the point. “If that’s a misunderstanding of what [the Voting Rights Act] requires,” she said, “then the whole thing is infected by that mistake.”
Ironically, the default argument for upholding the redistricting plan may be to defend the whole thing as a partisan exercise by Republican legislators to protect the party’s interest at the expense of opposition Democrats. The Supreme Court has ruled, in theory, that political gerrymandering can go too far, but it has never found one that went too far. And two justices, Antonin Scalia and Clarence Thomas, would bar judicial review of partisan line-drawing altogether.
The justices seemed both divided and uncertain after 70 minutes of argument in the case, Alabama Legislative Black Conference v. Alabama. In a nuanced presentation, Solicitor General Donald Verrilli presented the Obama administration’s position that the case should be sent back for further proceedings to examine the role that race played in regard to individual districts.
The legal complexities had the effect, however, of obscuring the underlying political realities. Republicans in Alabama and elsewhere in the South are quite happy to segregate voters by race these days. Black voters packed into majority-minority districts elect enough black Democrats to satisfy the Voting Rights Act, but not enough to have political power, and white Democrats are a vanishing species in office. The tactics are more subtle than those of the bad old days, but hardly faithful to the constitutional principle of equal political rights for all.
Friday, November 7, 2014
On Marriage Equality, a Blessing Well Disguised
The federal appeals court decision on Thursday [Nov. 6] upholding same-sex marriage bans in four states may be a blessing in disguise for advocates of marriage equality because it will force the Supreme Court to confront the issue, quite likely during this term. But the blessing is well disguised in an act of judicial laissez-faire that leaves the rights of same-sex couples in Kentucky, Michigan, Ohio, and Tennessee unprotected against political inertia and public disregard.
The majority opinion from the Sixth U.S. Circuit Court of Appeals turns aside the same-sex couples with a civics class lecture about the virtues of social change through the political process instead of judicial decree. It accepts as binding a one-sentence Supreme Court precedent from more than 40 years ago that has clearly been overtaken by changes in legal doctrine.
The ruling goes on to approve with utmost deference the flimsy arguments for privileging opposite-sex couples’ marriages, and only theirs, in order to promote “responsible procreation.” It allows same-sex parents to be relegated to second-class legal status based on unproven fears about adverse effects on the children’s upbringing and wellbeing. And it rests on a straw man argument that an exclusionary law can be struck down on the basis of unconstitutional animus only by proof of malicious intent on the part of legislators or voters, not by the objective impact of the law.
The ruling came three months to the day after the three-judge panel had heard a full three hours of arguments in what were technically six cases from the four states. From the outset, it was clear that the deciding vote lay with Jeffrey Sutton, a former Ohio solicitor general, Federalist Society member, and darling of legal conservatives.
Thus, it was no surprise that Sutton emerged as the author of the majority opinion released late in the afternoon. Sutton was joined in the opinion by Judge Deborah Cook, who like Sutton was appointed to the appeals court by President George W. Bush. A strong dissent came from Judge Martha Craig (Cissy) Daughtrey, a veteran jurist with unconcealed liberal views appointed to the appeals court in 1994 by President Bill Clinton. (Disclosure: Daughtrey is a personal friend of more than 40 years’ standing.)
Sutton’s opinion gives little by way of red meat to the confirmed anti-gay opponents of marriage equality. Gay couples, he says, are fully capable of forming loving relationships and of raising children in stable families. He acknowledges the “lamentable” prejudice against gays and lesbians and the tangible costs from refusing marriage to same-sex couples.
As Daughtrey points out in her dissent, however, Sutton does not consider the same-sex couples’ rights to be the issue for the court to decide. Instead, Sutton says, the question is “who decides” — federal courts or what he calls “the less expedient, but usually reliable, work of the state democratic processes.”
Sutton’s answer will cheer the advocates of judicial restraint. Political process and structure, he says, are “the most reliable, liberty-assuring guarantees of our system of government,” not the courts. History includes many examples when courts were needed to protect individual rights. In any event, as Daughtrey says in dissent, the either-or dichotomy that Sutton posits is simply a “false premise.”
Sutton is also off-base in relying on the Supreme Court’s curt rejection of same-sex marriage rights back in 1972. A succession of federal courts, including four courts of appeals, have found that precedent no longer binding. Sutton himself acknowledges its diminished weight, but Daughtrey is more to the point in dismissing it as “a dead letter.”
Sutton acknowledges the rulings from other courts, but finds them unpersuasive because the other courts have not spoken with a single voice in their legal rationales. One by one, he rejects each of the rationales. He devotes special attention to the argument that same-sex marriage bans are based on unconstitutional animus against gays and lesbians.
In Sutton’s view, it is both impossible and unfair to attribute anti-gay prejudice to all the legislators and voters who have approved or kept in place the traditional definition of one-man, one-woman marriage. Daughtrey correctly responds that the Supreme Court has not required evidence of “hostile intent” to find unconstitutional animus on the basis of a law’s objective effect.
The Supreme Court confounded legal handicappers as the justices opened the new term in October by turning aside the marriage cases that had been teed up for review. The inaction seemed to substantiate Justice Ruth Bader Ginsburg’s suggestion that the court was waiting for a conflict at the circuit court level before stepping in.
Sutton’s opinion now creates that conflict. Lawyers for the plaintiff couples in the Michigan and Ohio cases promptly said that they would promptly file petitions asking the high court to hear their appeals. Time is short, but the calendar allows the petitions and the states’ replies to be filed in time for the justices to consider the cases by mid-January — the customary deadline for arguments and decision this term.
Sutton advises the court to let the political process continue so that “fellow citizens,” gay and straight alike, can resolve this “new social issue” in “a fair-minded way.” Daughtrey has a strong rejoinder. If the courts shirk their “responsibility to right fundamental wrongs left excused by a majority of the electorate,” she writes, the constitutional system of checks and balance will “prove to be nothing but shams.”
The majority opinion from the Sixth U.S. Circuit Court of Appeals turns aside the same-sex couples with a civics class lecture about the virtues of social change through the political process instead of judicial decree. It accepts as binding a one-sentence Supreme Court precedent from more than 40 years ago that has clearly been overtaken by changes in legal doctrine.
The ruling goes on to approve with utmost deference the flimsy arguments for privileging opposite-sex couples’ marriages, and only theirs, in order to promote “responsible procreation.” It allows same-sex parents to be relegated to second-class legal status based on unproven fears about adverse effects on the children’s upbringing and wellbeing. And it rests on a straw man argument that an exclusionary law can be struck down on the basis of unconstitutional animus only by proof of malicious intent on the part of legislators or voters, not by the objective impact of the law.
The ruling came three months to the day after the three-judge panel had heard a full three hours of arguments in what were technically six cases from the four states. From the outset, it was clear that the deciding vote lay with Jeffrey Sutton, a former Ohio solicitor general, Federalist Society member, and darling of legal conservatives.
Thus, it was no surprise that Sutton emerged as the author of the majority opinion released late in the afternoon. Sutton was joined in the opinion by Judge Deborah Cook, who like Sutton was appointed to the appeals court by President George W. Bush. A strong dissent came from Judge Martha Craig (Cissy) Daughtrey, a veteran jurist with unconcealed liberal views appointed to the appeals court in 1994 by President Bill Clinton. (Disclosure: Daughtrey is a personal friend of more than 40 years’ standing.)
Sutton’s opinion gives little by way of red meat to the confirmed anti-gay opponents of marriage equality. Gay couples, he says, are fully capable of forming loving relationships and of raising children in stable families. He acknowledges the “lamentable” prejudice against gays and lesbians and the tangible costs from refusing marriage to same-sex couples.
As Daughtrey points out in her dissent, however, Sutton does not consider the same-sex couples’ rights to be the issue for the court to decide. Instead, Sutton says, the question is “who decides” — federal courts or what he calls “the less expedient, but usually reliable, work of the state democratic processes.”
Sutton’s answer will cheer the advocates of judicial restraint. Political process and structure, he says, are “the most reliable, liberty-assuring guarantees of our system of government,” not the courts. History includes many examples when courts were needed to protect individual rights. In any event, as Daughtrey says in dissent, the either-or dichotomy that Sutton posits is simply a “false premise.”
Sutton is also off-base in relying on the Supreme Court’s curt rejection of same-sex marriage rights back in 1972. A succession of federal courts, including four courts of appeals, have found that precedent no longer binding. Sutton himself acknowledges its diminished weight, but Daughtrey is more to the point in dismissing it as “a dead letter.”
Sutton acknowledges the rulings from other courts, but finds them unpersuasive because the other courts have not spoken with a single voice in their legal rationales. One by one, he rejects each of the rationales. He devotes special attention to the argument that same-sex marriage bans are based on unconstitutional animus against gays and lesbians.
In Sutton’s view, it is both impossible and unfair to attribute anti-gay prejudice to all the legislators and voters who have approved or kept in place the traditional definition of one-man, one-woman marriage. Daughtrey correctly responds that the Supreme Court has not required evidence of “hostile intent” to find unconstitutional animus on the basis of a law’s objective effect.
The Supreme Court confounded legal handicappers as the justices opened the new term in October by turning aside the marriage cases that had been teed up for review. The inaction seemed to substantiate Justice Ruth Bader Ginsburg’s suggestion that the court was waiting for a conflict at the circuit court level before stepping in.
Sutton’s opinion now creates that conflict. Lawyers for the plaintiff couples in the Michigan and Ohio cases promptly said that they would promptly file petitions asking the high court to hear their appeals. Time is short, but the calendar allows the petitions and the states’ replies to be filed in time for the justices to consider the cases by mid-January — the customary deadline for arguments and decision this term.
Sutton advises the court to let the political process continue so that “fellow citizens,” gay and straight alike, can resolve this “new social issue” in “a fair-minded way.” Daughtrey has a strong rejoinder. If the courts shirk their “responsibility to right fundamental wrongs left excused by a majority of the electorate,” she writes, the constitutional system of checks and balance will “prove to be nothing but shams.”
Sunday, November 2, 2014
Campaign Spending Tilts Courts to Right
Campaign spending in state judicial elections has apparently reached a new high in 2014. And, if past is prologue, the likely result will be harder times ahead for criminal defendants and suspects.
The trends are worrisome for the goal of an independent judiciary, but nothing suggests a likely reversal. Free-speech rulings make it difficult to limit or regulate spending in judicial elections. In addition, divisions on legal issues are now more than ever sharply drawn along partisan lines easy to convey to voters in 30- or 60-second television spots. And, try as they might, judicial reformers are making little progress in moving away from contested elections for judgeships at the state level.
Three liberal groups have thrown the spotlight on judicial elections in well documented reports issued within the past two weeks. In the first of the reports, distributed by the American Constitution Society (ACS), researchers at Emory University School of Law examined the impact of what they called “the explosion in television attack advertisements in state supreme court elections” over the past two decades.
The careful statistical analysis in the report, entitled Skewed Justice, confirms the common-sense supposition: courts that have gone through “soft on crime” campaigns turn out to be “less likely to rule in favor of defendants in criminal appeals.” An increase in television advertising, the report finds, can result in an 8 percent decrease in rulings favoring criminal defendants on appeal. And states that removed prohibitions against corporate or union spending in the wake of the Supreme Court’s Citizens United decision saw a 7 percent decrease in pro-defense rulings on appeal.
In the second report, the Brennan Center for Justice and the advocacy group Justice at Stake highlighted what they called “a surge of last-minute outside spending” in supreme court elections in five states: Illinois, Michigan, Montana, North Carolina, and Ohio. Based on required filings with the Federal Communications Commission (FCC), the report found $1 million in TV ad buys as the final week of campaigning in those contests began. Overall, the report found $12 million in judicial campaign spending in 10 states since January.
Those sums may seem trivial compared to the amounts being spent in congressional races — for example, the record $100 million in spending by the two opponents in North Carolina’s hotly contested Senate race. But the interest groups financing judicial election campaigns know that a little money goes a long way in those races. Voters get little information about judicial elections apart from the paid advertising, and incumbent judges face ethical constraints in raising the money needed to respond.
Law-and-order is the dominant theme in the advertising in state supreme court elections. In Ohio, a group called American Freedom Builders made a $375,000 ad buy for spots that included one praising incumbent Justice Judith French for upholding the death penalty and tough criminal sentences. In Michigan, the Virginia-based Center for Individual Freedom spent $146,000 for advertising that praised two incumbent Republican justices for “throwing the books at violent predators.”
History shows that the law-and-order attack ads work. In California, three state supreme court justices, including Chief Justice Rose Bird, were ousted in 1986 after a campaign focused on the court’s repeated reversals in death penalty cases. A decade later, Tennessee Supreme Court Justice Penny White fell victim in 1996 to a similar campaign.
The well-heeled groups behind this increased spending are not primarily interested in law enforcement and public safety. Business interests hope to win favor from state supreme courts on civil litigation, workers’ rights, consumer protection, and other regulatory issues. Republican Party organizations are spending money conscious of the partisan stakes in redistricting cases that may wind up before state supreme courts.
Those issues do not resonate with voters as much as ads that pillory justices for ruling in favor of criminal defendants. The “sophisticated” special-interest groups financing the judicial campaigns “understand that ‘soft on crime’ attack ads are often the best means of removing from office justices they oppose,” the report states.
Concern about the political impact of judicial elections extends to lower courts as well. At the Supreme Court, Justice Sonia Sotomayor suggested in November 2013 that Alabama’s system of partisan elections helped explain the unusual number of cases in which judges imposed the death penalty after juries had voted for imprisonment instead.
Judicial reformers have worried about the political threats to judicial independence at least since the 1930s, but they are up against an ingrained public belief in elections. One reform widely adopted is the so-called Missouri plan: judges are appointed after a merit selection process and then run in yes/no “retention” elections. That system did not protect the California or Tennessee justices from partisan attack and defeat.
Another reform, nonpartisan elections, is not necessarily effective either. The state supreme court contests in North Carolina are technically nonpartisan, but the opposing candidates are easily identifiable as Republicans or Democrats. For several years, North Carolina used public financing to try to immunize judges from political pressures, but the Republican-controlled legislature abolished that system in 2013.
Judicial politics may be dirty business, but handwringing will make it no cleaner. Those groups that want to strengthen the independence of the judiciary have no choice but to respond in kind to the campaign tactics being used by those groups that want to bend judges to their will.
The trends are worrisome for the goal of an independent judiciary, but nothing suggests a likely reversal. Free-speech rulings make it difficult to limit or regulate spending in judicial elections. In addition, divisions on legal issues are now more than ever sharply drawn along partisan lines easy to convey to voters in 30- or 60-second television spots. And, try as they might, judicial reformers are making little progress in moving away from contested elections for judgeships at the state level.
Three liberal groups have thrown the spotlight on judicial elections in well documented reports issued within the past two weeks. In the first of the reports, distributed by the American Constitution Society (ACS), researchers at Emory University School of Law examined the impact of what they called “the explosion in television attack advertisements in state supreme court elections” over the past two decades.
The careful statistical analysis in the report, entitled Skewed Justice, confirms the common-sense supposition: courts that have gone through “soft on crime” campaigns turn out to be “less likely to rule in favor of defendants in criminal appeals.” An increase in television advertising, the report finds, can result in an 8 percent decrease in rulings favoring criminal defendants on appeal. And states that removed prohibitions against corporate or union spending in the wake of the Supreme Court’s Citizens United decision saw a 7 percent decrease in pro-defense rulings on appeal.
In the second report, the Brennan Center for Justice and the advocacy group Justice at Stake highlighted what they called “a surge of last-minute outside spending” in supreme court elections in five states: Illinois, Michigan, Montana, North Carolina, and Ohio. Based on required filings with the Federal Communications Commission (FCC), the report found $1 million in TV ad buys as the final week of campaigning in those contests began. Overall, the report found $12 million in judicial campaign spending in 10 states since January.
Those sums may seem trivial compared to the amounts being spent in congressional races — for example, the record $100 million in spending by the two opponents in North Carolina’s hotly contested Senate race. But the interest groups financing judicial election campaigns know that a little money goes a long way in those races. Voters get little information about judicial elections apart from the paid advertising, and incumbent judges face ethical constraints in raising the money needed to respond.
Law-and-order is the dominant theme in the advertising in state supreme court elections. In Ohio, a group called American Freedom Builders made a $375,000 ad buy for spots that included one praising incumbent Justice Judith French for upholding the death penalty and tough criminal sentences. In Michigan, the Virginia-based Center for Individual Freedom spent $146,000 for advertising that praised two incumbent Republican justices for “throwing the books at violent predators.”
History shows that the law-and-order attack ads work. In California, three state supreme court justices, including Chief Justice Rose Bird, were ousted in 1986 after a campaign focused on the court’s repeated reversals in death penalty cases. A decade later, Tennessee Supreme Court Justice Penny White fell victim in 1996 to a similar campaign.
The well-heeled groups behind this increased spending are not primarily interested in law enforcement and public safety. Business interests hope to win favor from state supreme courts on civil litigation, workers’ rights, consumer protection, and other regulatory issues. Republican Party organizations are spending money conscious of the partisan stakes in redistricting cases that may wind up before state supreme courts.
Those issues do not resonate with voters as much as ads that pillory justices for ruling in favor of criminal defendants. The “sophisticated” special-interest groups financing the judicial campaigns “understand that ‘soft on crime’ attack ads are often the best means of removing from office justices they oppose,” the report states.
Concern about the political impact of judicial elections extends to lower courts as well. At the Supreme Court, Justice Sonia Sotomayor suggested in November 2013 that Alabama’s system of partisan elections helped explain the unusual number of cases in which judges imposed the death penalty after juries had voted for imprisonment instead.
Judicial reformers have worried about the political threats to judicial independence at least since the 1930s, but they are up against an ingrained public belief in elections. One reform widely adopted is the so-called Missouri plan: judges are appointed after a merit selection process and then run in yes/no “retention” elections. That system did not protect the California or Tennessee justices from partisan attack and defeat.
Another reform, nonpartisan elections, is not necessarily effective either. The state supreme court contests in North Carolina are technically nonpartisan, but the opposing candidates are easily identifiable as Republicans or Democrats. For several years, North Carolina used public financing to try to immunize judges from political pressures, but the Republican-controlled legislature abolished that system in 2013.
Judicial politics may be dirty business, but handwringing will make it no cleaner. Those groups that want to strengthen the independence of the judiciary have no choice but to respond in kind to the campaign tactics being used by those groups that want to bend judges to their will.
Sunday, October 26, 2014
Supreme Court Keeps a Widow Waiting
Ruth Bader Ginsburg won one of her first Supreme Court victories against sex discrimination by arguing in behalf of a young Air Force officer, Sharron Frontiero, over housing and medical benefits for her recently married husband. Married servicemen got the benefits automatically, but servicewomen had to prove that their husbands depended on them for more than half of their support.
The Supreme Court ruled for Frontiero in 1973 in a decision that laid the groundwork for what ultimately became the current “intermediate scrutiny” test used to judge the validity of laws treating men and women differently because of their sex. Ginsburg often relates the back story of the decision as she recounts the history of gender equality in the United States.
Ginsburg now needs to meet Kathy Barker, a widow who is being denied Social Security survivor benefits because of another discriminatory rule adopted by the federal government. The Social Security Administration (SSA) denied Barker benefits in September because the state of Texas, where she now lives, does not recognize her legal marriage to her now deceased wife, Sara, in Massachusetts in 2010.
Texas is one of a rapidly dwindling number of states — now 18 — with laws on the books denying marriage rights to gay or lesbian couples. Three federal appeals courts have ruled same-sex marriage bans unconstitutional; the Supreme Court earlier this month decided to leave those decisions alone rather than review them to produce a nationwide ruling on the issue. Ginsburg said in September that there was “no hurry” for the court to act until there was a conflict among the federal circuits.
Barker’s case proves the need for the court to act — sooner, not later. The Obama administration has gone pretty far in recognizing same-sex marriages for purposes of federal law since the Supreme Court struck down the Defense of Marriage Act (DOMA) in 2013. SSA announced in June that it would provide marriage-based benefits to married same-sex couples living in states that recognized their marriages. But the agency said that it is bound by a statutory provision to apply Texas law — the state of Barker’s current “domicile” — in determining her eligibility for spousal benefits.
The civil rights organization Lambda Legal filed a lawsuit on Barker’s behalf last week [Oct. 22] in federal court in Washington, D.C., contesting the SSA’s policy. The agency’s “continued incorporation of discriminatory state marital laws” to deny spousal benefits violates the U.S. Constitution, the lawyers alleged in the 33-page lawsuit. Joining the suit as a co-plaintiff is the Washington-based advocacy group the National Committee to Preserve Social Security and Medicare.
Barker is no less entitled to spousal Social Security benefits than Frontiero was when she applied for medical and housing benefits for her husband. Kathy and Sara had been together for 30 years before they got married late in 2010 in Massachusetts, where they had met and where Sara’s family lived. They had moved to Texas in 1984 to find less expensive housing and be closer to Kathy’s family.
Sara survived breast cancer in the late 1980s, but she was diagnosed with an aggressive form of cancer in 2010 — prompting their decision to get married later that year. With Sara’s condition worsening, they both retired from their jobs in June 2011. Kathy was a full-time caregiver until Sara died in March 2012.
Social Security provides a lump-sum death benefit and monthly survivor benefits to the surviving spouse of an opposite-sex marriage; since June, the same benefits have been available to the surviving spouse of a same-sex couple in states that recognize same-sex marriages. But the agency points to a wordy statutory provision (42 U.S.C. § 416(h)(1)(A)(i)) as requiring it to apply the marriage law of the state where the surviving spouse is “domiciled” at the time of the application for benefits or where the deceased spouse was “domiciled” at the time of the death.
Based on Texas law, the agency in September denied Barker’s application for what she expected to be about $1,210 per month in survivor benefits. With those benefits, Barker, who is 62, says she can delay applying for her own retirement benefits until age 66; applying for early benefits would reduce the monthly payments by about $583 (from $2,130 to $1,547). The added monthly lifetime benefits, the suit notes, “would make a significant difference in the quality of Kathy’s life as she ages.”
The lawsuit notes the “multitude” of state and federal courts that have ruled rule same-sex marriage bans unconstitutional in the year-plus since the DOMA decision, including a federal district court in Texas in February. The Fifth U.S. Circuit Court of Appeals is expected to hear arguments on the case before the end of the year; other circuit courts have moved faster, and the Fifth Circuit’s conservative bent makes the outcome uncertain.
Barker’s Social Security suit will take a while to advance through the courts. Perhaps a ruling by the Fifth Circuit to uphold the Texas law will give the Supreme Court what Ginsburg says it needs to resolve the underlying issue. Some court watchers say the delay is all for the good: giving the justices and the public time to get ready for the seemingly likely nationwide ruling to recognize freedom to marry for all. In the meantime, however, Kathy Barker waits for a Social Security check.
The Supreme Court ruled for Frontiero in 1973 in a decision that laid the groundwork for what ultimately became the current “intermediate scrutiny” test used to judge the validity of laws treating men and women differently because of their sex. Ginsburg often relates the back story of the decision as she recounts the history of gender equality in the United States.
Ginsburg now needs to meet Kathy Barker, a widow who is being denied Social Security survivor benefits because of another discriminatory rule adopted by the federal government. The Social Security Administration (SSA) denied Barker benefits in September because the state of Texas, where she now lives, does not recognize her legal marriage to her now deceased wife, Sara, in Massachusetts in 2010.
Texas is one of a rapidly dwindling number of states — now 18 — with laws on the books denying marriage rights to gay or lesbian couples. Three federal appeals courts have ruled same-sex marriage bans unconstitutional; the Supreme Court earlier this month decided to leave those decisions alone rather than review them to produce a nationwide ruling on the issue. Ginsburg said in September that there was “no hurry” for the court to act until there was a conflict among the federal circuits.
Barker’s case proves the need for the court to act — sooner, not later. The Obama administration has gone pretty far in recognizing same-sex marriages for purposes of federal law since the Supreme Court struck down the Defense of Marriage Act (DOMA) in 2013. SSA announced in June that it would provide marriage-based benefits to married same-sex couples living in states that recognized their marriages. But the agency said that it is bound by a statutory provision to apply Texas law — the state of Barker’s current “domicile” — in determining her eligibility for spousal benefits.
The civil rights organization Lambda Legal filed a lawsuit on Barker’s behalf last week [Oct. 22] in federal court in Washington, D.C., contesting the SSA’s policy. The agency’s “continued incorporation of discriminatory state marital laws” to deny spousal benefits violates the U.S. Constitution, the lawyers alleged in the 33-page lawsuit. Joining the suit as a co-plaintiff is the Washington-based advocacy group the National Committee to Preserve Social Security and Medicare.
Barker is no less entitled to spousal Social Security benefits than Frontiero was when she applied for medical and housing benefits for her husband. Kathy and Sara had been together for 30 years before they got married late in 2010 in Massachusetts, where they had met and where Sara’s family lived. They had moved to Texas in 1984 to find less expensive housing and be closer to Kathy’s family.
Sara survived breast cancer in the late 1980s, but she was diagnosed with an aggressive form of cancer in 2010 — prompting their decision to get married later that year. With Sara’s condition worsening, they both retired from their jobs in June 2011. Kathy was a full-time caregiver until Sara died in March 2012.
Social Security provides a lump-sum death benefit and monthly survivor benefits to the surviving spouse of an opposite-sex marriage; since June, the same benefits have been available to the surviving spouse of a same-sex couple in states that recognize same-sex marriages. But the agency points to a wordy statutory provision (42 U.S.C. § 416(h)(1)(A)(i)) as requiring it to apply the marriage law of the state where the surviving spouse is “domiciled” at the time of the application for benefits or where the deceased spouse was “domiciled” at the time of the death.
Based on Texas law, the agency in September denied Barker’s application for what she expected to be about $1,210 per month in survivor benefits. With those benefits, Barker, who is 62, says she can delay applying for her own retirement benefits until age 66; applying for early benefits would reduce the monthly payments by about $583 (from $2,130 to $1,547). The added monthly lifetime benefits, the suit notes, “would make a significant difference in the quality of Kathy’s life as she ages.”
The lawsuit notes the “multitude” of state and federal courts that have ruled rule same-sex marriage bans unconstitutional in the year-plus since the DOMA decision, including a federal district court in Texas in February. The Fifth U.S. Circuit Court of Appeals is expected to hear arguments on the case before the end of the year; other circuit courts have moved faster, and the Fifth Circuit’s conservative bent makes the outcome uncertain.
Barker’s Social Security suit will take a while to advance through the courts. Perhaps a ruling by the Fifth Circuit to uphold the Texas law will give the Supreme Court what Ginsburg says it needs to resolve the underlying issue. Some court watchers say the delay is all for the good: giving the justices and the public time to get ready for the seemingly likely nationwide ruling to recognize freedom to marry for all. In the meantime, however, Kathy Barker waits for a Social Security check.
Sunday, October 19, 2014
In Texas, Many Voters Won't Be Counted
The Supreme Court worked well past midnight Friday before allowing the state of Texas to enforce a voter ID law that a federal court judge had found to amount to intentional discrimination against African Americans, Hispanics, and the poor. The unexplained order, with three liberal justices in dissent, mocks all those pre-election public service announcements urging the importance of each and every qualified citizen to go to the polls and cast his or her vote.
The court included no explanation for its action in the order, issued in the predawn hours on Saturday morning. By inference, however, justices in the majority apparently agreed with the state’s argument that it would be disruptive to change voting rules so close to the Nov. 4 election. In a strongly worded dissent, Justice Ruth Bader Ginsburg said the argument is weak to begin with and is outweighed by the damage from disenfranchising hundreds of thousands of would-be voters under a discriminatory law. Justices Sonia Sotomayor and Elena Kagan joined the dissent.
The court’s action turned aside an effort by a coalition of civil rights groups, backed by the Obama administration, seeking to reinstate an injunction against using the law issued on Oct. 9 by a federal judge in Corpus Christi. Judge Nelva Gonzales Ramos had concluded, after a two-week trial, that the 2011 law could disenfranchise as many as 600,000 would-be voters who lack any of the government-issued IDs called for in the law.
Texas went to the conservative-dominated Fifth U.S. Circuit Court of Appeals complaining about changing voting rules so close to an election. The state relied in large part on a Supreme Court precedent, Purcell v. Gonzales (2006), that has been widely interpreted as barring courts from ordering changes in voting procedures on the eve of an election.
A three-judge panel consisting of two conservative Republican appointees and a rookie Obama appointee agreed with the state and put Ramos’s injunction on hold. Writing for the two GOP appointees, Judge Edith Clement said the state had an interest in “preserving the status quo” so close to the election. The Obama appointee, Judge Gregg Costa, said the court should be “extremely reluctant” to allow an election to be conducted under a law found to be discriminatory but bowed to the Supreme Court precedent.
The Supreme Court has been unusually busy this election season with voter ID laws. For those keeping score, the court in three previous cases had allowed Ohio and North Carolina to enforce laws imposing new restrictions on voting but blocked Wisconsin from implementing its new voter ID requirements. The distinguishing factor in the Wisconsin case, it would seem, was that a federal court judge had blocked the law in July and the Seventh Circuit had changed the rules in September by lifting the injunction after some absentee ballots had already been mailed out.
Surely, late changes in voting procedures can be a problem for election officials. As Ginsburg pointed out in the dissent, however, Texas would have had no great problem in reverting to the pre-2011 procedures for voter identification. She also noted that Judge Ramos had found the state’s efforts to educate voters about the ID law had been “woefully lacking” and “grossly” underfunded.
Ginsburg also contended that the Supreme Court precedent, Purcell, has been given exaggerated importance. The court’s brief, unsigned opinion in that case overturned a decision by the Ninth Circuit one month before the 2006 election to block an Arizona voter ID law. The court faulted the Ninth Circuit, however, not so much for the timing of its decision as for its failure to explain its reasons for blocking the law after a lower court had upheld it.
The Texas case is completely different. Ramos’s 147-page opinion is thoroughly documented and backed by precedent; the Fifth Circuit majority makes no effort to question her conclusion that the Texas legislature knew and intended that the law would make voting disproportionately harder for African Americans and Hispanics than for Anglos. The Supreme Court majority similarly did not engage on the racial discrimination issue; the unsigned order merely recites in legalese that the plaintiffs’ application to vacate the Fifth Circuit’s stay of the lower court injunction is denied.
Procedurally, the court’s inaction points to a fallacy of its decision in 2013 to effectively eliminate the preclearance requirement imposed on Texas and other Southern states under the 1965 Voting Rights Act. In his opinion for the conservative majority in that case, Chief Justice John G. Roberts Jr. noted that the act’s nationwide provision against racial discrimination in voting, section 2, would still be available as an enforcement tool. Joshua Block, a lawyer with the American Civil Liberties Union, took to Twitter to note the contradiction. “Remember when SCOTUS said the availability of speedy injunctive relief under Section 2 was an adequate substitute for pre-clearance?” he tweeted.
Attorney General Eric Holder interrupted his weekend long enough to denounce the court’s action. It was “a major step backward,” Holder said, for the court to leave in place a law “designed to discriminate.” Perhaps the impact of the law will be less than its opponents fear, but the court’s decision to let the law stand departs from the widely shared civic belief in a universal franchise as a fundamental principle of modern American democracy.
The court included no explanation for its action in the order, issued in the predawn hours on Saturday morning. By inference, however, justices in the majority apparently agreed with the state’s argument that it would be disruptive to change voting rules so close to the Nov. 4 election. In a strongly worded dissent, Justice Ruth Bader Ginsburg said the argument is weak to begin with and is outweighed by the damage from disenfranchising hundreds of thousands of would-be voters under a discriminatory law. Justices Sonia Sotomayor and Elena Kagan joined the dissent.
The court’s action turned aside an effort by a coalition of civil rights groups, backed by the Obama administration, seeking to reinstate an injunction against using the law issued on Oct. 9 by a federal judge in Corpus Christi. Judge Nelva Gonzales Ramos had concluded, after a two-week trial, that the 2011 law could disenfranchise as many as 600,000 would-be voters who lack any of the government-issued IDs called for in the law.
Texas went to the conservative-dominated Fifth U.S. Circuit Court of Appeals complaining about changing voting rules so close to an election. The state relied in large part on a Supreme Court precedent, Purcell v. Gonzales (2006), that has been widely interpreted as barring courts from ordering changes in voting procedures on the eve of an election.
A three-judge panel consisting of two conservative Republican appointees and a rookie Obama appointee agreed with the state and put Ramos’s injunction on hold. Writing for the two GOP appointees, Judge Edith Clement said the state had an interest in “preserving the status quo” so close to the election. The Obama appointee, Judge Gregg Costa, said the court should be “extremely reluctant” to allow an election to be conducted under a law found to be discriminatory but bowed to the Supreme Court precedent.
The Supreme Court has been unusually busy this election season with voter ID laws. For those keeping score, the court in three previous cases had allowed Ohio and North Carolina to enforce laws imposing new restrictions on voting but blocked Wisconsin from implementing its new voter ID requirements. The distinguishing factor in the Wisconsin case, it would seem, was that a federal court judge had blocked the law in July and the Seventh Circuit had changed the rules in September by lifting the injunction after some absentee ballots had already been mailed out.
Surely, late changes in voting procedures can be a problem for election officials. As Ginsburg pointed out in the dissent, however, Texas would have had no great problem in reverting to the pre-2011 procedures for voter identification. She also noted that Judge Ramos had found the state’s efforts to educate voters about the ID law had been “woefully lacking” and “grossly” underfunded.
Ginsburg also contended that the Supreme Court precedent, Purcell, has been given exaggerated importance. The court’s brief, unsigned opinion in that case overturned a decision by the Ninth Circuit one month before the 2006 election to block an Arizona voter ID law. The court faulted the Ninth Circuit, however, not so much for the timing of its decision as for its failure to explain its reasons for blocking the law after a lower court had upheld it.
The Texas case is completely different. Ramos’s 147-page opinion is thoroughly documented and backed by precedent; the Fifth Circuit majority makes no effort to question her conclusion that the Texas legislature knew and intended that the law would make voting disproportionately harder for African Americans and Hispanics than for Anglos. The Supreme Court majority similarly did not engage on the racial discrimination issue; the unsigned order merely recites in legalese that the plaintiffs’ application to vacate the Fifth Circuit’s stay of the lower court injunction is denied.
Procedurally, the court’s inaction points to a fallacy of its decision in 2013 to effectively eliminate the preclearance requirement imposed on Texas and other Southern states under the 1965 Voting Rights Act. In his opinion for the conservative majority in that case, Chief Justice John G. Roberts Jr. noted that the act’s nationwide provision against racial discrimination in voting, section 2, would still be available as an enforcement tool. Joshua Block, a lawyer with the American Civil Liberties Union, took to Twitter to note the contradiction. “Remember when SCOTUS said the availability of speedy injunctive relief under Section 2 was an adequate substitute for pre-clearance?” he tweeted.
Attorney General Eric Holder interrupted his weekend long enough to denounce the court’s action. It was “a major step backward,” Holder said, for the court to leave in place a law “designed to discriminate.” Perhaps the impact of the law will be less than its opponents fear, but the court’s decision to let the law stand departs from the widely shared civic belief in a universal franchise as a fundamental principle of modern American democracy.
Sunday, October 12, 2014
On Marriage Rights, Court Sows Doubt and Delay
Liberty finds no refuge in a jurisprudence of doubt.
The Supreme Court had egg on its face twice last week as it dealt with one of the most sensitive issues on its docket: marriage rights for gay and lesbian couples. First, the long orders list distributed to reporters on Monday [Oct. 6] omitted 33 pages, including those listing the court’s stunning decision not to hear appeals from five states seeking to salvage laws banning same-sex marriages.
Three days later, Justice Anthony M. Kennedy signed an interim order blocking same-sex marriages in Nevada even though the state had made no request to delay complying with the federal appeals court decision striking down its ban. The court’s public information office was forced into acknowledging the next day that the Nevada case was listed by mistake on an order that did put things on hold in Idaho.
These were paperwork mistakes made by the court’s staff: the court clerk’s office in the first instance, perhaps one of the justice’s law clerks in the other. The week’s bigger mistake, however, was the responsibility of the justices themselves: the confusion created by their walking away from the marriage equality issue at least for the moment.
The justices had cases from five states — Utah, Oklahoma, Virginia, Wisconsin, and Indiana — fully teed up for them to consider. The losing and the winning sides in all five urged the court to hear the cases for a speedy, nationwide resolution of the issue.
Instead, the court simply denied certiorari — to use the legal term for declining to review the lower court decisions — without a single word by explanation from any of the justices. Samuel Bagenstos, a law professor of the University of Michigan, aptly noted on Twitter that he could recall no instance in which the court had declined to review lower court decisions that had ruled so many state laws unconstitutional under federal law.
True, the cases did not present a conflict among federal circuit courts, the most frequent criterion for the Supreme Court to take up a case. Indeed, federal courts have been one ruling short of unanimous in the past year in striking down state bans on same-sex marriages. A federal judge in Louisiana in August broke the string of 30 or so consecutive victories for gay marriage advocates.
All the other federal courts, including the appeals courts for the Tenth, the Fourth, the Seventh, and, most recently, the Ninth Circuit, have found the gay marriage bans unconstitutional. As the justices returned from their summer recess, three of those rulings were ready for their consideration.
The court had skirted the marriage issue in June 2013 when it dismissed, for lack of legal standing, an effort by the proponents of California’s Proposition 8 to reinstate the state’s gay marriage ban after the Ninth Circuit had struck it down. This summer, however, Justice Ruth Bader Ginsburg told the Associated Press’s Mark Sherman that the court would not duck the issue a second time around.
Ginsburg later appeared to contradict herself by telling a law school audience on Sept. 16 that there was “no urgency” for the court to decide the issue in the absence of a circuit conflict. As Ginsburg knows full well, however, the court often agrees to hear a case even without a circuit conflict because of the importance of the issue. Surely, marriage rights for same-sex couples qualifies.
With four votes needed to grant certiorari, the cert denials imply as a matter of mathematics that one or more of the four liberal justices are not ready to force the issue. The same apparently goes for the four conservatives, including Chief Justice John G. Roberts Jr., who dissented from the ruling in June 2013 to strike down the federal Defense of Marriage Act (DOMA). And maybe Justice Anthony M. Kennedy is not ready for a showdown on the issue either.
As suggested by BuzzFeed’s Chris Geidner, Kennedy may be waiting for gay marriage to be legal in so many states that the court’s eventual ruling will simply ratify a national consensus. That strategy accords with Ginsburg’s favorable recollection of the court’s decade-long wait before striking down state bans on interracial marriages in 1967. By then, Ginsburg has recalled, most of those state laws were gone and the country was ready to accept a court decision to get rid of the rest.
If this is the strategy, perhaps it spares the Supreme Court from politicized attacks, and perhaps it even serves the eventual cause of marriage equality. The court’s decision on Friday [Oct. 10] to turn down Idaho’s bid to delay gay marriage may indicate that any other states seeking to delay the inevitable will also be turned away.
Still, the court’s actions clearly contradict the passage attributed to Kennedy at the start of the plurality opinion reaffirming abortion rights 22 years ago. Despite clearing the way for gay marriages in a dozen or more states, the court last week left the law in doubt and justice delayed for same-sex couples in the 15 other states still awaiting rulings. It was not the court’s proudest moment.
— Planned Parenthood v. Casey (1992) (plurality opinion)
The Supreme Court had egg on its face twice last week as it dealt with one of the most sensitive issues on its docket: marriage rights for gay and lesbian couples. First, the long orders list distributed to reporters on Monday [Oct. 6] omitted 33 pages, including those listing the court’s stunning decision not to hear appeals from five states seeking to salvage laws banning same-sex marriages.
Three days later, Justice Anthony M. Kennedy signed an interim order blocking same-sex marriages in Nevada even though the state had made no request to delay complying with the federal appeals court decision striking down its ban. The court’s public information office was forced into acknowledging the next day that the Nevada case was listed by mistake on an order that did put things on hold in Idaho.
These were paperwork mistakes made by the court’s staff: the court clerk’s office in the first instance, perhaps one of the justice’s law clerks in the other. The week’s bigger mistake, however, was the responsibility of the justices themselves: the confusion created by their walking away from the marriage equality issue at least for the moment.
The justices had cases from five states — Utah, Oklahoma, Virginia, Wisconsin, and Indiana — fully teed up for them to consider. The losing and the winning sides in all five urged the court to hear the cases for a speedy, nationwide resolution of the issue.
Instead, the court simply denied certiorari — to use the legal term for declining to review the lower court decisions — without a single word by explanation from any of the justices. Samuel Bagenstos, a law professor of the University of Michigan, aptly noted on Twitter that he could recall no instance in which the court had declined to review lower court decisions that had ruled so many state laws unconstitutional under federal law.
True, the cases did not present a conflict among federal circuit courts, the most frequent criterion for the Supreme Court to take up a case. Indeed, federal courts have been one ruling short of unanimous in the past year in striking down state bans on same-sex marriages. A federal judge in Louisiana in August broke the string of 30 or so consecutive victories for gay marriage advocates.
All the other federal courts, including the appeals courts for the Tenth, the Fourth, the Seventh, and, most recently, the Ninth Circuit, have found the gay marriage bans unconstitutional. As the justices returned from their summer recess, three of those rulings were ready for their consideration.
The court had skirted the marriage issue in June 2013 when it dismissed, for lack of legal standing, an effort by the proponents of California’s Proposition 8 to reinstate the state’s gay marriage ban after the Ninth Circuit had struck it down. This summer, however, Justice Ruth Bader Ginsburg told the Associated Press’s Mark Sherman that the court would not duck the issue a second time around.
Ginsburg later appeared to contradict herself by telling a law school audience on Sept. 16 that there was “no urgency” for the court to decide the issue in the absence of a circuit conflict. As Ginsburg knows full well, however, the court often agrees to hear a case even without a circuit conflict because of the importance of the issue. Surely, marriage rights for same-sex couples qualifies.
With four votes needed to grant certiorari, the cert denials imply as a matter of mathematics that one or more of the four liberal justices are not ready to force the issue. The same apparently goes for the four conservatives, including Chief Justice John G. Roberts Jr., who dissented from the ruling in June 2013 to strike down the federal Defense of Marriage Act (DOMA). And maybe Justice Anthony M. Kennedy is not ready for a showdown on the issue either.
As suggested by BuzzFeed’s Chris Geidner, Kennedy may be waiting for gay marriage to be legal in so many states that the court’s eventual ruling will simply ratify a national consensus. That strategy accords with Ginsburg’s favorable recollection of the court’s decade-long wait before striking down state bans on interracial marriages in 1967. By then, Ginsburg has recalled, most of those state laws were gone and the country was ready to accept a court decision to get rid of the rest.
If this is the strategy, perhaps it spares the Supreme Court from politicized attacks, and perhaps it even serves the eventual cause of marriage equality. The court’s decision on Friday [Oct. 10] to turn down Idaho’s bid to delay gay marriage may indicate that any other states seeking to delay the inevitable will also be turned away.
Still, the court’s actions clearly contradict the passage attributed to Kennedy at the start of the plurality opinion reaffirming abortion rights 22 years ago. Despite clearing the way for gay marriages in a dozen or more states, the court last week left the law in doubt and justice delayed for same-sex couples in the 15 other states still awaiting rulings. It was not the court’s proudest moment.
Sunday, October 5, 2014
A Jilted Lover's Case Against the Supreme Court
The future chief justice John G. Roberts Jr. closed his prepared statement at his confirmation hearing before the Senate Judiciary Committee by invoking the image of the Supreme Court as the guardian of justice for the powerless. As a lawyer in private practice, Roberts recalled that whenever he appeared before the Supreme Court in a case against the government, he was confident that he could win if only he could convince the justices that he had the law on his side.
After his nine years in office, the Roberts Court’s record bears little resemblance to the heroic image that Roberts painted back then, according to the critical account in the new book The Case Against the Supreme Court. As constitutional law scholar Erwin Chemerinsky tells it, victories for the voiceless or powerless have been hard to come by from the Roberts Court.
The card-carrying civil libertarian dean of the University of California-Irvine School of Law details the current court’s familiar record of siding with businesses in cases brought by investors, customers, or employees and with the government in cases brought by victims of government abuse or overreach. But Chemerinsky has gone beyond the easy task for a liberal of railing against Roberts and the four other Republican-appointed justices in the usually reliable conservative majority.
Instead, Chemerinsky has prepared an advocate’s case against the Supreme Court not just for the past decade but throughout its 225-year history. “My claim,” Chemerinsky writes even while acknowledging the court’s positive accomplishments, “is that the Court has often failed where and when it is most needed.”
After making this bold claim, however, Chemerinsky backs away from bold proposals such as eliminating judicial review in hopes that the political branches would be impelled to take their constitutional responsibilities more seriously. Instead, he endorses a laundry-list of worthy changes that he hopes would somehow lead the court to take its rights-protecting responsibilities more seriously, even at times of maximum stress.
Chemerinsky writes with the pain of a jilted lover. He entered law school in the 1970s with the Warren Court’s record fresh in mind, confident in the courts’ ability to effect social justice. Forty years later, however, he sees the 15-year Warren Court era as a blip and its rulings as less ambitious than they could have been and needed to be.
The bill of particulars against the court includes the great historic mistakes that will be familiar even to people with only a passing knowledge of American history. The slave-owning majority of the Supreme Court of the 1850s reduced African Americans to non-persons in the infamous Dred Scott case and threw out Congress’s attempt to keep slavery out of the newly settled territories. The court upheld racial segregation in Plessy v. Ferguson (1897), with only one justice in dissent. Five decades later, the court upheld without apology the World War II internment of Japanese Americans in the equally infamous decision of Korematsu v. United States (1944).
The list of historic disappointments is much longer. Chemerinsky opens with Buck v. Bell (1927), the 8-1 decision authored by the great justice Oliver Wendell Holmes Jr. that upheld the compulsory sterilization of a teenaged girl incorrectly diagnosed as mentally retarded. Chemerinsky notes that the decision has never been overruled; in fact, the more modern court held that a judge who ordered an involuntary sterilization with no legal authority whatever could not be sued for the damage he inflicted (Stump v. Sparkman, 1978).
What else? The court failed to protect free speech during World War I or in the McCarthy era of the 1950s. The court limited the ability of federal or state governments to regulate businesses to protect workers and consumers from the 1890s until FDR installed pro-New Deal justices in the so-called Revolution of 1937. And in a complex of lesser-known cases the court has sharply limited the ability of victims of unconstitutional government abuse to sue either the government or the individual officials responsible for their injuries.
Yes, but what about the Warren Court, Chemerinsky says he was asked while working on the book. The court barred racial segregation in Brown v. Board of Education (1954), he concedes, but then sat on the sidelines for a full decade. The court gave indigent criminal defendants the right to a lawyer (Gideon v. Florida, 1963), but did nothing to help the states pay for the new right. Later, the Burger, Rehnquist, and Roberts Courts weakened both decisions by limiting policies to promote racial diversity in schools and making it hard for defendants to prove unconstitutionally “ineffective” representation by court-appointed lawyers.
Despite the indictment, Chemerinsky rejects abolishing either the Supreme Court altogether or its power to declare laws or government actions unconstitutional. He says his fellow liberal advocates of “popular constitutionalism” have undue faith in the political branches’ fidelity to constitutional rights and ignore the invaluable role that the court’s decisions play in teaching Americans about constitutional rights.
Instead, Chemerinsky endorses merit selection of judges, including Supreme Court justices; more candid confirmation hearings; broadcast of Supreme Court proceedings; and 18-year term limits for justices. All well and good perhaps, but they cannot guarantee what Chemerinsky says we “desperately” need — a court “more likely to live up to its crucial constitutional responsibilities.”
After his nine years in office, the Roberts Court’s record bears little resemblance to the heroic image that Roberts painted back then, according to the critical account in the new book The Case Against the Supreme Court. As constitutional law scholar Erwin Chemerinsky tells it, victories for the voiceless or powerless have been hard to come by from the Roberts Court.
The card-carrying civil libertarian dean of the University of California-Irvine School of Law details the current court’s familiar record of siding with businesses in cases brought by investors, customers, or employees and with the government in cases brought by victims of government abuse or overreach. But Chemerinsky has gone beyond the easy task for a liberal of railing against Roberts and the four other Republican-appointed justices in the usually reliable conservative majority.
Instead, Chemerinsky has prepared an advocate’s case against the Supreme Court not just for the past decade but throughout its 225-year history. “My claim,” Chemerinsky writes even while acknowledging the court’s positive accomplishments, “is that the Court has often failed where and when it is most needed.”
After making this bold claim, however, Chemerinsky backs away from bold proposals such as eliminating judicial review in hopes that the political branches would be impelled to take their constitutional responsibilities more seriously. Instead, he endorses a laundry-list of worthy changes that he hopes would somehow lead the court to take its rights-protecting responsibilities more seriously, even at times of maximum stress.
Chemerinsky writes with the pain of a jilted lover. He entered law school in the 1970s with the Warren Court’s record fresh in mind, confident in the courts’ ability to effect social justice. Forty years later, however, he sees the 15-year Warren Court era as a blip and its rulings as less ambitious than they could have been and needed to be.
The bill of particulars against the court includes the great historic mistakes that will be familiar even to people with only a passing knowledge of American history. The slave-owning majority of the Supreme Court of the 1850s reduced African Americans to non-persons in the infamous Dred Scott case and threw out Congress’s attempt to keep slavery out of the newly settled territories. The court upheld racial segregation in Plessy v. Ferguson (1897), with only one justice in dissent. Five decades later, the court upheld without apology the World War II internment of Japanese Americans in the equally infamous decision of Korematsu v. United States (1944).
The list of historic disappointments is much longer. Chemerinsky opens with Buck v. Bell (1927), the 8-1 decision authored by the great justice Oliver Wendell Holmes Jr. that upheld the compulsory sterilization of a teenaged girl incorrectly diagnosed as mentally retarded. Chemerinsky notes that the decision has never been overruled; in fact, the more modern court held that a judge who ordered an involuntary sterilization with no legal authority whatever could not be sued for the damage he inflicted (Stump v. Sparkman, 1978).
What else? The court failed to protect free speech during World War I or in the McCarthy era of the 1950s. The court limited the ability of federal or state governments to regulate businesses to protect workers and consumers from the 1890s until FDR installed pro-New Deal justices in the so-called Revolution of 1937. And in a complex of lesser-known cases the court has sharply limited the ability of victims of unconstitutional government abuse to sue either the government or the individual officials responsible for their injuries.
Yes, but what about the Warren Court, Chemerinsky says he was asked while working on the book. The court barred racial segregation in Brown v. Board of Education (1954), he concedes, but then sat on the sidelines for a full decade. The court gave indigent criminal defendants the right to a lawyer (Gideon v. Florida, 1963), but did nothing to help the states pay for the new right. Later, the Burger, Rehnquist, and Roberts Courts weakened both decisions by limiting policies to promote racial diversity in schools and making it hard for defendants to prove unconstitutionally “ineffective” representation by court-appointed lawyers.
Despite the indictment, Chemerinsky rejects abolishing either the Supreme Court altogether or its power to declare laws or government actions unconstitutional. He says his fellow liberal advocates of “popular constitutionalism” have undue faith in the political branches’ fidelity to constitutional rights and ignore the invaluable role that the court’s decisions play in teaching Americans about constitutional rights.
Instead, Chemerinsky endorses merit selection of judges, including Supreme Court justices; more candid confirmation hearings; broadcast of Supreme Court proceedings; and 18-year term limits for justices. All well and good perhaps, but they cannot guarantee what Chemerinsky says we “desperately” need — a court “more likely to live up to its crucial constitutional responsibilities.”
Monday, September 29, 2014
Fog of War, Fog of Law
When a reporter shouted a question to President Obama last week about the legal justification for the U.S.-led air strikes against the Islamic State in Syria, Obama waved the question away. “Good to see you,” Obama replied smilingly.
Obama violated no constitutional provision by dodging the reporter’s question, but between them Obama and Congress have disrespected the Constitution with the president’s launch of a new war in the Middle East without formal debate or resolution from Capitol Hill.
The president deserves credit for laying out his position in a prime-time televised address on Sept. 10 in advance of the start of the air strikes the next day. But the administration’s legal rationale has been scatter-shot rather than precision-targeted.
In his speech, Obama blandly declared, “I have the authority to address the threat from ISIL” — to use the White House’s acronym for the group. He cited nothing specific and then, without taking a breath, continued by saying that the country is “strongest . . . when the President and Congress work together.”
Yet Obama has not asked Congress to sign on the dotted line, as the Constitution arguably requires. And congressional leaders have not put aside the midterm election campaigns to return to Washington simply to debate going to war.
Obama was all over the map in his listing of the United States’ goals in the Sept. 10 address. The mission was described variously as helping Iraq defend itself, strengthening the opposition within Syria to the discredited president Bashar Assad, and combating “terrorists who threaten our country.” Never mind that any number of terrorism experts have played down any direct threat from the Islamic State to the U.S. homeland.
On background, administration officials told reporters that the White House was relying in part on two congressional enactments: the post-9/11 Authorization for the Use of Military Force — commonly referred to by the acronym AUMF — and the late 2002 resolution on the Iraq War. Jack Goldsmith, the Harvard law professor who served as director of the Justice Department’s Office of Legal Counsel in President George W. Bush’s second term, dismissed the AUMF argument as “unconvincing.”
Congress passed the AUMF to give Bush legal authority to take military action against “those nations, organizations, or persons” that “authorized, committed, or aided” the Sept. 11 attacks or “harbored” those that did. The Islamic State, which once operated under the name al Qaeda in Syria and Iraq, has only the faintest if any connection to Sept. 11 and has since parted ways from “core” al Qaeda.
In a quickie column written the next day for Time, Goldsmith said that the invocation of the AUMF amounted to a claim for authority to “use force endlessly against practically any ambitious jihadist terrorist group” that fights the United States. The argument, he wrote, was “presidential unilateralism masquerading as implausible statutory interpretation.”
With more time, Goldsmith is now giving the administration’s other arguments more credence. In a post on the conservative-leaning web site LawFare [Sept. 23], Goldsmith wrote that the administration “is on pretty strong legal ground under both domestic and international law.” He still views the AUMF rationale as “weak,” but sees “adequate legal foundation” when the AUMF is combined with the Iraq War resolution and the president’s Article II power as commander in chief. Even so, Goldsmith adds, “[I]t would have been politically wise and constitutionally prudent for [Obama] to force Congress to vote on and authorize this dramatic expansion of the war on terrorism.’”
Obama has his reasons for not calling Congress back into session. When he asked Congress in 2012 for authority to use military force against Syria to eliminate the country’s arsenal of chemical weapons, lawmakers balked. Obama withdrew the request and retreated to what proved to be a successful diplomatic solution. “The president doesn’t want to get burned again,” Charles (Cully) Stimson, a Heritage Foundation fellow and former assistant secretary of defense for detainee affairs in the Bush administration, remarked on C-SPAN’s Washington Journal last week [Sept. 25].
Congress itself has other things on its mind, such as running for re-election and ducking responsibility for a war that may or may not go well. Admittedly, House Speaker John Boehner professes a desire for Congress to address the issue. “I have made it clear that I think the House and the Congress itself should speak,” the Republican speaker said last week in an interview with the liberal web site First Draft.
Boehner is blaming Obama, however, for Congress’s failure to act. Speaking on ABC’s This Week [Sept. 28], he said Congress was waiting for Obama to send up a War Powers Act resolution for lawmakers to consider.
Alphonse and Gaston made for a good comic strip back in the day, but they are a poor model for a constitutional republic. “This is not an ideal situation,” American University constitutional law professor Stephen Vladeck, founding editor of the liberal-leaning site JustSecurity, remarked on the C-SPAN program.
Between them, Obama and Congress owe the nation and the world the deliberation due for a new U.S.-led war. For all the talk of presidential unilateralism a decade ago, Bush twice asked Congress for authority before putting U.S. service members in harm’s way. The constitutional law professor now serving in the White House should do at least as much.
Obama violated no constitutional provision by dodging the reporter’s question, but between them Obama and Congress have disrespected the Constitution with the president’s launch of a new war in the Middle East without formal debate or resolution from Capitol Hill.
The president deserves credit for laying out his position in a prime-time televised address on Sept. 10 in advance of the start of the air strikes the next day. But the administration’s legal rationale has been scatter-shot rather than precision-targeted.
In his speech, Obama blandly declared, “I have the authority to address the threat from ISIL” — to use the White House’s acronym for the group. He cited nothing specific and then, without taking a breath, continued by saying that the country is “strongest . . . when the President and Congress work together.”
Yet Obama has not asked Congress to sign on the dotted line, as the Constitution arguably requires. And congressional leaders have not put aside the midterm election campaigns to return to Washington simply to debate going to war.
Obama was all over the map in his listing of the United States’ goals in the Sept. 10 address. The mission was described variously as helping Iraq defend itself, strengthening the opposition within Syria to the discredited president Bashar Assad, and combating “terrorists who threaten our country.” Never mind that any number of terrorism experts have played down any direct threat from the Islamic State to the U.S. homeland.
On background, administration officials told reporters that the White House was relying in part on two congressional enactments: the post-9/11 Authorization for the Use of Military Force — commonly referred to by the acronym AUMF — and the late 2002 resolution on the Iraq War. Jack Goldsmith, the Harvard law professor who served as director of the Justice Department’s Office of Legal Counsel in President George W. Bush’s second term, dismissed the AUMF argument as “unconvincing.”
Congress passed the AUMF to give Bush legal authority to take military action against “those nations, organizations, or persons” that “authorized, committed, or aided” the Sept. 11 attacks or “harbored” those that did. The Islamic State, which once operated under the name al Qaeda in Syria and Iraq, has only the faintest if any connection to Sept. 11 and has since parted ways from “core” al Qaeda.
In a quickie column written the next day for Time, Goldsmith said that the invocation of the AUMF amounted to a claim for authority to “use force endlessly against practically any ambitious jihadist terrorist group” that fights the United States. The argument, he wrote, was “presidential unilateralism masquerading as implausible statutory interpretation.”
With more time, Goldsmith is now giving the administration’s other arguments more credence. In a post on the conservative-leaning web site LawFare [Sept. 23], Goldsmith wrote that the administration “is on pretty strong legal ground under both domestic and international law.” He still views the AUMF rationale as “weak,” but sees “adequate legal foundation” when the AUMF is combined with the Iraq War resolution and the president’s Article II power as commander in chief. Even so, Goldsmith adds, “[I]t would have been politically wise and constitutionally prudent for [Obama] to force Congress to vote on and authorize this dramatic expansion of the war on terrorism.’”
Obama has his reasons for not calling Congress back into session. When he asked Congress in 2012 for authority to use military force against Syria to eliminate the country’s arsenal of chemical weapons, lawmakers balked. Obama withdrew the request and retreated to what proved to be a successful diplomatic solution. “The president doesn’t want to get burned again,” Charles (Cully) Stimson, a Heritage Foundation fellow and former assistant secretary of defense for detainee affairs in the Bush administration, remarked on C-SPAN’s Washington Journal last week [Sept. 25].
Congress itself has other things on its mind, such as running for re-election and ducking responsibility for a war that may or may not go well. Admittedly, House Speaker John Boehner professes a desire for Congress to address the issue. “I have made it clear that I think the House and the Congress itself should speak,” the Republican speaker said last week in an interview with the liberal web site First Draft.
Boehner is blaming Obama, however, for Congress’s failure to act. Speaking on ABC’s This Week [Sept. 28], he said Congress was waiting for Obama to send up a War Powers Act resolution for lawmakers to consider.
Alphonse and Gaston made for a good comic strip back in the day, but they are a poor model for a constitutional republic. “This is not an ideal situation,” American University constitutional law professor Stephen Vladeck, founding editor of the liberal-leaning site JustSecurity, remarked on the C-SPAN program.
Between them, Obama and Congress owe the nation and the world the deliberation due for a new U.S.-led war. For all the talk of presidential unilateralism a decade ago, Bush twice asked Congress for authority before putting U.S. service members in harm’s way. The constitutional law professor now serving in the White House should do at least as much.
Monday, September 22, 2014
At Supreme Court, Nine Clashing Friends in a Bottle
Justice Oliver Wendell Holmes Jr. is famously, but perhaps apocryphally, quoted as having described the Supreme Court as “nine scorpions in a bottle.” The description accurately portrayed the court of the early 20th century, but the phrase is now thought to have been coined in the 1950s by Alexander Bickel, a law clerk to the notoriously pugnacious Felix Frankfurter at a time when several of the justices often had their stingers out.
Today, by all accounts, including their own, The Nine get along just fine. “We’re all good friends,” says Justice Antonin Scalia, an opera lover like Ruth Bader Ginsburg and now an occasional hunting companion for Elena Kagan.
However friendly they may be, the nine justices of the 2014 Roberts Court clearly have their own personalities and, more importantly, their own views on legal issues. For a quick guide to those personalities and those views, one can profitably spend a couple of hours with American Justice 2014: Nine Clashing Visions on the Supreme Court, a top-hits account of the court’s most recent term by journalist-author-law professor Garrett Epps.
Epps, who now teaches at the University of Baltimore Law School, has spent the past few years as an itinerant member of the Supreme Court press corps, contributing reported opinion pieces to Atlantic.com. (Disclosure: Epps is a friend and college classmate.) American Justice is a quickie book, published this month [Sept. 10] before the actual end of the October 2013 term. As Epps notes, each Supreme Court term does not end with the final decision in late June, but continues right up to the beginning of the new term on the traditional First Monday in October.
Speed was accomplished by dispensing with footnotes or index and by adopting a simple format: nine chapters, profiling each justice through the lens of the justice’s most distinctive opinion of the term. Epps opens with a profile of Chief Justice John G. Roberts Jr. tied to the term’s first major decision: the 5-4 precedent-reversing decision to throw out so-called “aggregate” limits on campaign contributions (McCutcheon v. FEC). He ends with Ruth Bader Ginsburg’s indignant dissent from the end-of-term ruling to allow employers a religious objection to providing contraceptive coverage in employee health plans (Burwell v. Hobby Lobby Stores).
Epps sketches the justices impressionistically, with his likes and dislikes plainly visible. He likes Elena Kagan for her “brilliant mind” and “razor-sharp it.” He admires Ginsburg for using the birth control dissent “to give a voice to thousands of female workers around the country.”
In like vein, Epps applauds Sonia Sotomayor (“America’s Justice of Hearts”) for her deeply personal dissent from the ruling to allow states to ban racial preferences in university admissions (Schuette v. Coalition to Defend Affirmative Action). Stephen Breyer may come across to some as a bit of a stuffed shirt, but Epps finds him “unfailingly polite,” “always engaged,” and, more important, committed to a view of government empowered by democratic participation to meet the challenges of the times.
The conservative justices fare less well in Epps’ telling. He contrasts Roberts’ disavowal at his confirmation of any “agenda” with the court’s record of adopting Republican positions on such contentious issues as campaign finance, affirmative action, public employee unions, and so forth. Antonin Scalia is depicted as expressly championing an ideological, anti-government agenda. Epps credits him with partial success but then mocks him for his alarmist dissents in gay rights cases that lower courts are now citing in pro-gay marriage rulings.
Epps belittles Scalia one more time by noting Samuel Alito’s emergence as “the new sheriff in town” for authoring the term’s last two decisions: Hobby Lobby and the rebuke to public employee unions (Harris v. Quinn). But the portrait of Alito as a justice who writes opinions “in take-no-prisoners style” with “contempt for those who disagree with him” is hardly flattering.
Of the ardent conservatives, Clarence Thomas escapes mostly unscathed in Epps’ telling. Epps notes that Thomas has said he drafts his opinions before hearing arguments and he is “notoriously unwilling to compromise his own views” later. As for Thomas’ eight-year silence on the bench, however, Epps excuses it as the self-defensive legacy of Thomas’s slights from white liberals both before and since taking the bench.
Epps insightfully captures Anthony M. Kennedy as a justice too full of himself but with an innate sense of justice that harks to “a small-town America” of yesteryear. Epps favorably depicts Kennedy’s pivots between the conservative and liberal blocs as the product not of finger-to-the-wind judging but of deeply held views on personal liberty and dignity.
Weightier books are coming soon, both from card-carrying liberals who say the court’s conservative orientation these days is of a piece with the role it has played through most of history. Erwin Chemerinsky, dean of the University of California-Irvine Law School, presents that argument in The Case Against the Supreme Court [Sept. 25]. Ian Millhiser, legal editor of the progressive web site Think Progress, will expound the same position in Injustices, to be published in March 2015.
Epps undoubtedly agrees with much of that critique, but more with regret than with outrage. He closes by noting that President Obama and Roberts both assumed their current positions with dreams of reducing the hyperpartisanship prevalent in Washington and the nation. For both men, he writes, “the fabric of this dream had melted into air, into thin air.”
Today, by all accounts, including their own, The Nine get along just fine. “We’re all good friends,” says Justice Antonin Scalia, an opera lover like Ruth Bader Ginsburg and now an occasional hunting companion for Elena Kagan.
However friendly they may be, the nine justices of the 2014 Roberts Court clearly have their own personalities and, more importantly, their own views on legal issues. For a quick guide to those personalities and those views, one can profitably spend a couple of hours with American Justice 2014: Nine Clashing Visions on the Supreme Court, a top-hits account of the court’s most recent term by journalist-author-law professor Garrett Epps.
Epps, who now teaches at the University of Baltimore Law School, has spent the past few years as an itinerant member of the Supreme Court press corps, contributing reported opinion pieces to Atlantic.com. (Disclosure: Epps is a friend and college classmate.) American Justice is a quickie book, published this month [Sept. 10] before the actual end of the October 2013 term. As Epps notes, each Supreme Court term does not end with the final decision in late June, but continues right up to the beginning of the new term on the traditional First Monday in October.
Speed was accomplished by dispensing with footnotes or index and by adopting a simple format: nine chapters, profiling each justice through the lens of the justice’s most distinctive opinion of the term. Epps opens with a profile of Chief Justice John G. Roberts Jr. tied to the term’s first major decision: the 5-4 precedent-reversing decision to throw out so-called “aggregate” limits on campaign contributions (McCutcheon v. FEC). He ends with Ruth Bader Ginsburg’s indignant dissent from the end-of-term ruling to allow employers a religious objection to providing contraceptive coverage in employee health plans (Burwell v. Hobby Lobby Stores).
Epps sketches the justices impressionistically, with his likes and dislikes plainly visible. He likes Elena Kagan for her “brilliant mind” and “razor-sharp it.” He admires Ginsburg for using the birth control dissent “to give a voice to thousands of female workers around the country.”
In like vein, Epps applauds Sonia Sotomayor (“America’s Justice of Hearts”) for her deeply personal dissent from the ruling to allow states to ban racial preferences in university admissions (Schuette v. Coalition to Defend Affirmative Action). Stephen Breyer may come across to some as a bit of a stuffed shirt, but Epps finds him “unfailingly polite,” “always engaged,” and, more important, committed to a view of government empowered by democratic participation to meet the challenges of the times.
The conservative justices fare less well in Epps’ telling. He contrasts Roberts’ disavowal at his confirmation of any “agenda” with the court’s record of adopting Republican positions on such contentious issues as campaign finance, affirmative action, public employee unions, and so forth. Antonin Scalia is depicted as expressly championing an ideological, anti-government agenda. Epps credits him with partial success but then mocks him for his alarmist dissents in gay rights cases that lower courts are now citing in pro-gay marriage rulings.
Epps belittles Scalia one more time by noting Samuel Alito’s emergence as “the new sheriff in town” for authoring the term’s last two decisions: Hobby Lobby and the rebuke to public employee unions (Harris v. Quinn). But the portrait of Alito as a justice who writes opinions “in take-no-prisoners style” with “contempt for those who disagree with him” is hardly flattering.
Of the ardent conservatives, Clarence Thomas escapes mostly unscathed in Epps’ telling. Epps notes that Thomas has said he drafts his opinions before hearing arguments and he is “notoriously unwilling to compromise his own views” later. As for Thomas’ eight-year silence on the bench, however, Epps excuses it as the self-defensive legacy of Thomas’s slights from white liberals both before and since taking the bench.
Epps insightfully captures Anthony M. Kennedy as a justice too full of himself but with an innate sense of justice that harks to “a small-town America” of yesteryear. Epps favorably depicts Kennedy’s pivots between the conservative and liberal blocs as the product not of finger-to-the-wind judging but of deeply held views on personal liberty and dignity.
Weightier books are coming soon, both from card-carrying liberals who say the court’s conservative orientation these days is of a piece with the role it has played through most of history. Erwin Chemerinsky, dean of the University of California-Irvine Law School, presents that argument in The Case Against the Supreme Court [Sept. 25]. Ian Millhiser, legal editor of the progressive web site Think Progress, will expound the same position in Injustices, to be published in March 2015.
Epps undoubtedly agrees with much of that critique, but more with regret than with outrage. He closes by noting that President Obama and Roberts both assumed their current positions with dreams of reducing the hyperpartisanship prevalent in Washington and the nation. For both men, he writes, “the fabric of this dream had melted into air, into thin air.”
Friday, September 12, 2014
Texas Voter ID Law on Trial in U.S. Court
Update: Wisconsin will be allowed to put its voter ID law into effect for the November elections following an interim ruling by the Seventh U.S. Circuit Court of Appeals on Friday [Sept. 12]. The panel of three Republican-appointed judges — Frank Easterbrook, Diane Sykes, and John Tinder — lifted a ruling by a lower court judge that found the law racially discriminatory in violation of the Equal Protection Clause and the federal Voting Rights Act. The unsigned order said “the state’s probability of success” was “sufficiently great” to allow the state to implement the law pending a final decision on its appeal.
The law has long recognized the common-sense assumption that a person intends the natural and probable consequences of one’s actions. So, in law and in common sense, Texas legislators must have intended to make it harder for African Americans and Latinos to vote when they passed the nation’s most stringent voter ID law three years ago.
However self-evident that proposition may be, lawyers for civil rights groups, the U.S. government, and the state of Texas have spent much of the past two weeks arguing about it in a federal court in Corpus Christi. The trial, expected to conclude with final arguments later this month, is perhaps most critical test of the federal Voting Rights Act since the Supreme Court’s decision one year ago to remove the law’s most powerful enforcement provision.
Before the decision, Texas was one of the half a dozen Deep South states subject to a requirement to “preclear” any changes in election law with the Justice Department or a federal court based on the state’s past history of voting discrimination. The Supreme Court’s decision in Shelby County v. Holder (2013) struck that provision — known as section 5 — on the ground that it was out of date. As a result, civil rights groups or the federal government now can challenge voting changes that disadvantage minority voters only under the act’s nationwide provision, section 2, which requires proof of intentional discrimination.
Before Shelby County, a federal court in Washington had refused to allow Texas’ voter ID law to go into effect. After the Supreme Court decision, Gov. Rick Perry immediately moved to put the law into effect. Civil rights groups then joined with the Obama administration in filing suit to block the law under the Voting Rights Act’s section 2.
The plaintiffs’ case against the law consists of evidence both anecdotal and statistical showing that the voter ID requirement could disenfranchise up to 1.2 million eligible Texas voters, with a far greater impact on African Americans and Latinos than on white voters. The statistics convincingly show the disproportionate impact on minorities. Stephen Ansolabehere, a professor of government at Harvard, said an examination of state data bases indicated that 12 percent of blacks and 9 percent of Latinos lack the kinds of ID needed to satisfy the law and only 4 percent of whites.
More compelling are the individual accounts from would-be minority voters forced to go through bureaucratic hoops to try to comply with the law. Lead-off witnesses when the trial began on Sept. 2 were two elderly African Americans, both old enough to remember the era of overt racial discrimination in voting in the South.
Sammie Bates, a 74-year-old grandmother, recalled helping her grandmother count out the money needed to pay the $2 poll tax in her native Mississippi. Under the Texas law, Bates had to spend far more — $42 — to get a copy of her birth certificate as needed to obtain an election ID because she had no other government-issued photo identification.
Floyd Carrier, an 83-year-old veteran, testified that he tried to vote in November 2013 by presenting an expired driver’s license, a VA card, and his previous voter registration card. Poll workers recognized him, but refused to let him vote because none of those IDs satisfied the law. He went on to pay for $24 for a birth certificate, but it came back with mistakes.
In theory, the law seems to give Texans ample opportunities to prove their identity in order to vote. Government-issued photo IDs that satisfy the law include a valid Texas driver’s license or state-issued ID card or a U.S. passport, military ID, or citizenship certificate.
Tellingly, the legislature also allowed a concealed handgun permit to satisfy the law, but not a student or government-worker ID. Allan Lichtman, a historian at American University in Washington, cited those and other provisions as showing that legislators deliberately made it easier in practice for whites and harder for minorities to satisfy the law — based on data readily available to them at the time.
Without any of the specified IDs, the would-be voter needs a birth certificate to get the special election ID. Discrepancies on the birth certificate may be disqualifying, and in any event the would-be voter — with no driver’s license — has to travel to a Department of Public Safety office to get the election ID. Legislators representing African American and Latino districts testified about the problems their constituents have encountered trying to meet the requirements.
For their part, state officials say they have tried to publicize the law’s requirements and to assist would-be voters in complying. But evidence showed that the state has spent only $400,000 in that effort and to date has issued only 266 election IDs.
Texas is only one of seven states defending voter ID laws in federal courts. Two other cases are further along. A federal district court struck down Wisconsin’s law; the Seventh U.S. Circuit Court of Appeals is hearing arguments today [Sept. 12] in the state’s appeal. The lower court upheld North Carolina’s law; the Fourth Circuit is expediting the plaintiffs’ appeal.
In the Texas case, Judge Nelva Gonzales Ramos, an Obama appointee, is scheduled to hear final arguments from the lawyers on Sept. 22. She has not indicated when she is likely to rule.
* * *
The law has long recognized the common-sense assumption that a person intends the natural and probable consequences of one’s actions. So, in law and in common sense, Texas legislators must have intended to make it harder for African Americans and Latinos to vote when they passed the nation’s most stringent voter ID law three years ago.
However self-evident that proposition may be, lawyers for civil rights groups, the U.S. government, and the state of Texas have spent much of the past two weeks arguing about it in a federal court in Corpus Christi. The trial, expected to conclude with final arguments later this month, is perhaps most critical test of the federal Voting Rights Act since the Supreme Court’s decision one year ago to remove the law’s most powerful enforcement provision.
Before the decision, Texas was one of the half a dozen Deep South states subject to a requirement to “preclear” any changes in election law with the Justice Department or a federal court based on the state’s past history of voting discrimination. The Supreme Court’s decision in Shelby County v. Holder (2013) struck that provision — known as section 5 — on the ground that it was out of date. As a result, civil rights groups or the federal government now can challenge voting changes that disadvantage minority voters only under the act’s nationwide provision, section 2, which requires proof of intentional discrimination.
Before Shelby County, a federal court in Washington had refused to allow Texas’ voter ID law to go into effect. After the Supreme Court decision, Gov. Rick Perry immediately moved to put the law into effect. Civil rights groups then joined with the Obama administration in filing suit to block the law under the Voting Rights Act’s section 2.
The plaintiffs’ case against the law consists of evidence both anecdotal and statistical showing that the voter ID requirement could disenfranchise up to 1.2 million eligible Texas voters, with a far greater impact on African Americans and Latinos than on white voters. The statistics convincingly show the disproportionate impact on minorities. Stephen Ansolabehere, a professor of government at Harvard, said an examination of state data bases indicated that 12 percent of blacks and 9 percent of Latinos lack the kinds of ID needed to satisfy the law and only 4 percent of whites.
More compelling are the individual accounts from would-be minority voters forced to go through bureaucratic hoops to try to comply with the law. Lead-off witnesses when the trial began on Sept. 2 were two elderly African Americans, both old enough to remember the era of overt racial discrimination in voting in the South.
Sammie Bates, a 74-year-old grandmother, recalled helping her grandmother count out the money needed to pay the $2 poll tax in her native Mississippi. Under the Texas law, Bates had to spend far more — $42 — to get a copy of her birth certificate as needed to obtain an election ID because she had no other government-issued photo identification.
Floyd Carrier, an 83-year-old veteran, testified that he tried to vote in November 2013 by presenting an expired driver’s license, a VA card, and his previous voter registration card. Poll workers recognized him, but refused to let him vote because none of those IDs satisfied the law. He went on to pay for $24 for a birth certificate, but it came back with mistakes.
In theory, the law seems to give Texans ample opportunities to prove their identity in order to vote. Government-issued photo IDs that satisfy the law include a valid Texas driver’s license or state-issued ID card or a U.S. passport, military ID, or citizenship certificate.
Tellingly, the legislature also allowed a concealed handgun permit to satisfy the law, but not a student or government-worker ID. Allan Lichtman, a historian at American University in Washington, cited those and other provisions as showing that legislators deliberately made it easier in practice for whites and harder for minorities to satisfy the law — based on data readily available to them at the time.
Without any of the specified IDs, the would-be voter needs a birth certificate to get the special election ID. Discrepancies on the birth certificate may be disqualifying, and in any event the would-be voter — with no driver’s license — has to travel to a Department of Public Safety office to get the election ID. Legislators representing African American and Latino districts testified about the problems their constituents have encountered trying to meet the requirements.
For their part, state officials say they have tried to publicize the law’s requirements and to assist would-be voters in complying. But evidence showed that the state has spent only $400,000 in that effort and to date has issued only 266 election IDs.
Texas is only one of seven states defending voter ID laws in federal courts. Two other cases are further along. A federal district court struck down Wisconsin’s law; the Seventh U.S. Circuit Court of Appeals is hearing arguments today [Sept. 12] in the state’s appeal. The lower court upheld North Carolina’s law; the Fourth Circuit is expediting the plaintiffs’ appeal.
In the Texas case, Judge Nelva Gonzales Ramos, an Obama appointee, is scheduled to hear final arguments from the lawyers on Sept. 22. She has not indicated when she is likely to rule.
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