Heat, Not Light, on Changing Supreme Court

      Wisconsin’s great progressive senator Robert M. LaFolette grew so frustrated with the conservative-dominated Supreme Court that he called in his 1924 presidential campaign for a constitutional amendment to allow Congress to override judicial decisions and to provide for direct election of federal judges. LaFollette’s proposals went no further than his bid for the White House, but 90 years later frustration with the high court is so great that the call for reining in the courts is heard again.
       The modern-day proposals were aired last week [July 22] in a Senate subcommittee hearing convened by the former Supreme Court law clerk, Ted Cruz, the Texas Republican senator running for president. Cruz opened the Senate Judiciary Oversight Subcommittee’s hearing with a 13-minute statement decrying what he called the court’s recent “descent into lawlessness.”
       Cruz listed the various proposals: term limits; retention elections; override authority for the states, Congress, or both. Republicans called two conservatives as witnesses: Ed Whelan, the National Review commentator and former Scalia law clerk; and John Eastman, former dean of Chapman Law School. Democrats added the liberal Duke law professor Neil Siegel as a witness.
       With that much intellectual firepower, the hearing was disappointing for anyone expecting serious discussion. Instead, the two-hour hearing consisted mostly of second-guessing the court’s recent decisions. Cruz and the conservative witnesses listed the court’s gay marriage and Obamacare decisions; the subcommittee’s ranking Democrat, Delaware’s Chris Coons, complained about Citizens United and Shelby County.
       Coons tried to tamp down the sense of crisis. “We should reflect long and hard,” he said, before a fundamental change in the constitutional framework for the judiciary. But there was precious little reflection in the hearing.
       Two twentieth-century constitutional amendments have fundamentally changed both Congress and the presidency. The Seventeenth gave us direct election of senators; the Twenty-Second limited the president to two terms. The Supreme Court has a larger role today than expected 225 years ago and, thus, perhaps needs some new checks on its power.
       Term limits, the least intrusive of the changes under discussion, has the widest support. An ideologically diverse group of academics has been pushing one version of the idea for years, on the theory that regular turnover would benefit the court, the public, and the political process.
       At the hearing, Siegel was warm to the idea, Whelan uncertain, and Eastman opposed. Eastman said term limits would just mean one activist judge in place of another. The academics would provide 18-year terms of active service, followed by lifetime tenure as “senior justices.” Some think the change could be accomplished by statute; others say a constitutional amendment would be necessary.
       In his book The Case Against the Supreme Court, the liberal academic Erwin Chemerinsky, dean of the University of California-Irvine Law School, endorses the idea. He also includes one change not discussed at the hearing: some form of merit selection screening process for nominations to the court. He notes that the president could institute this change on his or her own.
       The other two changes discussed at the hearing would deliberately inject politics into the Supreme Court’s place in the constitutional structure. “I support every effort to bring power back to we the people,” Cruz said. But neither he nor his witnesses addressed the potential difficulties.
       If a majority of state legislatures or a supermajority of both chambers of Congress actually overruled a Supreme Court decision, the law would be left uncertain. If the marriage decision were overruled, “Question 2” in the case — whether a state must recognize a same-sex marriage from another state — would be unanswered. Nor would the law know the basis for allowing states to ban same-sex marriage.
       In any event, advocates of the change likely would be disappointed with the result. The marriage decision would surely withstand an override effort today. In fact, it is quite likely that few if any of the court’s most controversial decisions would have been overruled through such a process: not the good ones, like Brown v. Board of Education, or the bad ones, like Dred Scott. And there is a process for overturning a Supreme Court decision: the Fourteenth Amendment overturned Dred Scott; the Sixteenth Amendment overturned the ruling that barred a federal income tax.
       The override authority would politicize Supreme Court decisions more than they already are. Retention elections, adopted in the states to reduce political pressure on judges, would subject the Supreme Court instead to more. Siegel likened the idea to FDR’s proposal to “pack” the court; retention elections, he said, could “unpack” the court one justice at a time. The conservatives seemed open to the idea, but none addressed the effect of exposing justices to hundred-million-dollar election campaigns that would surely be financed by special interest groups of one stripe or another.
       The proposals for Supreme Court restructuring have little chance of being adopted. But in post-decision remarks to a judicial conference, Justice Anthony M. Kennedy, author of the marriage decision, indicated that the justices appreciate the need to consider public reaction to controversial decisions.
       “We draw down on a capital of trust,” Kennedy said, recalling the flag-burning decision. We spend that capital of trust, and we have to rebuild that capital. We have to put new deposits, new substance into this reservoir of trust."

Glossip's Case a Study in Death Penalty's Flaws

      Justice Stephen G. Breyer wrote a 41-page opinion, complete with five pages of charts and maps, to try to show that the Supreme Court’s 40-year effort to rationalize the death penalty in the United States has failed. But Breyer had no need to go further than the very case at hand.

      Richard Glossip, the first named petitioner in Glossip v. Gross [June 29], was convicted of capital murder and sentenced to death for the Jan. 7, 1997, killing of Barry Van Treese, owner of the seedy Oklahoma City motel where Glossip worked as manager. Glossip did not kill Van Treese and to this day maintains his innocence. The actual killer was Justin Sneed, the motel’s teenaged maintenance man, who claimed Glossip pressured and eventually paid him to kill Van Treese in order to cover up suspected embezzlement.

      Nothing in Glossip’s case singles out him or the killing as especially worthy of the death penalty. Indeed, the evidence was weak and the circumstances of the killing— even crediting the prosecution’s theory — were far from the kind of wanton, heinous murder likely to end with a death sentence anywhere except in a death penalty-happy jurisdiction.

      Sneed, who is now serving a life sentence for the murder, provided the testimony in two trials that ended with Glossip’s convictions. In reversing the first conviction, the Oklahoma Court of Criminal Appeals called the evidence “extremely weak” and ordered a new trial on grounds of ineffective assistance of counsel. Glossip had turned down a plea bargain with an agreed-on life sentence, but he was convicted and sentenced to death again. Just as in the first trial, Glossip’s new attorney failed to impeach Sneed by highlighting his evasiveness when first interrogated by police. In any event, the conviction and sentence were upheld on appeal and in federal habeas corpus proceedings.

      Glossip’s guilt or innocence was not at issue before the Supreme Court. The court’s 5-4 ruling cleared the way for Oklahoma and other states to use the sedative midazolam as the first drug in lethal injections despite some evidence that it fails to render an inmate unconscious for the rest of the procedure. Breyer joined the main dissent in the case, written by Justice Sonia Sotomayor, but wrote separately for himself and Justice Ruth Bader Ginsburg in calling for a complete re-examination of the constitutionality of capital punishment.

      Breyer listed four factors to show that the hopeful assumptions the court made in 1976 in reinstating capital punishment have not been realized. The death penalty has been shown to be unreliable: too many exonerations and, in Breyer’s view, strong evidence that one or more innocent men have been put to death. Death penalties have also been imposed arbitrarily, influenced by such supposedly extraneous factors as race and geography. The maps he attached showed the small number of counties in the United States that account for the vast majority of death sentences.

      Oklahoma County, which includes Oklahoma City, ranks third in the number of execution-resulting convictions since 1976, according to the Death Penalty Information Center. Two Texas counties rank first and second: Harris County (Houston) and Dallas County (Dallas-Fort Worth). 

      Credit for Oklahoma County's ranking goes to the late Robert (“Cowboy Bob”) Macy, who won 54 death sentences in 21 years as the county’s elected district attorney. Macy, who retired in 2001 and died in 2011, said publicly that the risk of executing an innocent person was worth taking in the interest of public safety. After he left office, the Tenth U.S. Circuit Court of Appeals wrote in a 2002 decision that Macy’s “persistent misconduct” had “harmed the reputation of Oklahoma's criminal justice system.”

      As a third factor, Breyer pointed to the long delay between sentences and actual executions — an average of 18 years. Breyer argued the delays are inevitable in a due process system but at the same time undermine the supposed rationales for the death penalty: retribution or deterrence. And as a fourth factor Breyer noticed the declining public support for capital punishment, as indicated by among other things the declining number of death sentences being returned by juries.

      The Glossip case was thoroughly dissected in a long article published by The Intercept, the leftist online publication headed by Glenn Greenwald. The article by Liliana Segura and Jordan Smith is advocacy journalism to be sure. Segura, a onetime senior editor at the leftist magazine The Nation, is a member of the National Coalition to Abolish the Death Penalty. Smith is a writer at the Austin Chronicle, independent alternative newsweekly.

      The article includes no interviews with prosecutors or members of either of the two juries that convicted Glossip. Nor is there any reporting from those trials to show how the prosecution rebutted Glossip’s version of events. Nor do they note that the Tenth Circuit called the retrial “fundamentally fair” in its decision in 2013 denying habeas corpus. Still, Segura and Smith make a strong showing that the conviction is “flimsy,” based on little else than the testimony of “a confessed murderer with a very good incentive to lie.”

      Reporter Graham Lee Brewer, who covers criminal justice for The Daily Oklahoman, has interviewed Glossip many times and questions Glossip’s claims of innocence. But if Glossip is put to death on Sept. 16 as scheduled — with the actual killer sill alive — the case will be one more example of a system that defies best efforts to be fair and just or even simply to make sense.

For Court's Conservatives, Worst Term Ever

      Chief Justice John G. Roberts had just finished reading his biting dissent in the same-sex marriage case when he took up the more mundane duty of announcing that Justice Antonin Scalia had the opinion in the next case: Johnson v. United States. “Don’t go away,” Scalia quipped.
      Scalia’s opinion would have gotten a fair share of attention that day [June 26] but for the marriage decision. With the votes of six justices, the court struck down a provision of federal law that imposed an additional 15-year to life prison term on a federal offender with at least three prior convictions for “violent” felonies.
      The Armed Career Criminal Act, enacted in 1984, applies to some specific priors and in the so-called “residual clause” also includes crimes with “conduct that presents a serious potential risk of physical injury to another.” Scalia had twice written dissents, in 2007 and 2011, urging that the clause be struck down as unconstitutionally vague.
      Scalia appeared to be as cheerful as a canary-eating-cat as he announced the decision that vindicated his dissents of still recent memory. By contrast, the 79-year-old justice was at his sarcastic worst the day before when he dissented from the decision written by Roberts that saved the Affordable Care Act.
      In fact, it was a bad term overall for Scalia: apparently his worst ever. He dissented in 23 cases, the highest number at least since the 1992-93 term when I began counting dissenting votes for my annual series Supreme Court Yearbook.
      Scalia was not alone. The court’s three other reliable conservatives also had personal-worst years. Justice Clarence Thomas dissented in 29 cases: not only his highest number, but also the highest figure for any justice since OT 1992. Justice John Paul Stevens held the previous record: 28 dissents in two separate terms, 1999-2000 and 2008-09.
      The Supreme Court Yearbook compilation does not reach back to Scalia’s first six terms or Thomas’s first. But the court’s conservatives generally held sway during those years, so their dissenting numbers were unlikely to have been on the high side.
      Roberts and Justice Samuel A. Alito Jr. also recorded personal highs for dissenting votes during OT 2014. Roberts cast 16 dissenting votes, surpassing his previous high of 14 dissents in OT 2008. Alito cast 21 dissenting votes; he had previously dissented in 16 cases in the 2012-2013 term.
      Meanwhile, three of the court’s liberal justices recorded personal bests. Ruth Bader Ginsburg cast 10 dissenting votes, the lowest number in her 23 terms. With six dissents, Stephen G. Breyer had the lowest number in his 22 terms; he was also the lowest of any of the justices for the term — the second time he has had that distinction. With eight dissents, Sonia Sotomayor had the lowest number for her six terms; Kagan, with 11 dissents, had the second lowest number for her five terms.
      The historical comparisons fortify the general characterization of the court as having tilted quite unusually to the left in OT 2014. The liberal justices, often bolstered by votes from the bloc-shifting Anthony M. Kennedy, prevailed not only in the marriage and Obamacare cases but also in most of the other important, divided decisions.
      Scalia’s late-term victory in Johnson, however, shows the conservatives may be down but not out. Indeed, the conservatives won two of the three decisions on the term’s final day, and they appeared to be the moving force the next day in a bit of aggressive agenda-setting for the coming term.
      The justices accepted for next term a significant challenge to public employee unions brought by dissident California teachers, Friedrichs v. California Teachers Association. This will be the court’s third case in five years challenging so-called agency shop rules that require public employees to pay fees to unions for the costs of collective bargaining even if they are not members. The plaintiffs claim the fees violate their freedom of speech and association; the unions say eliminating the fees would allow the dissidents to be free-riders — getting union-provided representation and benefits without paying for them.
      The court struck down an agency shop provision in a decision last year affecting Illinois home health care workers, Harris v. Quinn (2014). In his majority opinion, Alito criticized but stopped short of overruling the precedent that allows agency shop provisions: Abood v. Detroit Board of Education (1977). The new case is viewed by public employee unions as the shoe set to fall.
      The court had already set up a new test of racial preferences in university admissions by agreeing to hear Fisher v. University of Texas. This is the sequel to its earlier ruling in the same case in 2013 instructing the federal appeals court to take a second look at UT’s policies.
      The conservative justices were also the likely votes for hearing a politically significant redistricting case, Evenwel v. Abbott, also from Texas. The plaintiffs want to read the one-person, one-vote rule to count the voting population instead of total population in equalizing legislative districts. A ruling to that effect could shift political power away from areas with significant non-citizen populations or low voter registration.
      With those and other cases already teed up, conservatives are hoping for the best and liberals bracing for the worst. “Next term is going to be at least as important as this term, if not more,” remarked Steven Vladeck, a professor at American University’s Washington College of Law.

Breyer, Ginsburg Surprise on Death Penalty

      The Supreme Court’s decision in the Oklahoma lethal injection case on the final day of the term [June 29] went pretty much as expected. Justice Samuel A. Alito Jr. spoke for the conservative majority in rejecting the challenge. In oral argument, Alito had declared that the challenges about the specific drugs used in lethal injections amounted to “guerrilla warfare” by death penalty opponents in the face of legislative and judicial approval of capital punishment.
      Justice Sonia Sotomayor spoke for the four liberal justices in dissent. Sotomayor had bluntly told the state’s lawyer that she did not believe what he was saying. And she made clear her view that inmates would suffer excruciating pain during the executions because the drug Oklahoma planned to use to render them unconscious would not actually work.
      However predictable, the reading of the two opinions in Glossip v. Gross was high courtroom drama. Alito denounced in advance what he called Sotomayor’s “outlandish rhetoric.” Sotomayor followed by likening Oklahoma’s flawed lethal injections to being burned alive at the stake.
      But there was more to come: a genuine surprise from the court’s senior liberal justices, Stephen G. Breyer and Ruth Bader Ginsburg. In a rare reading from the bench of a second dissenting opinion, Breyer announced that he and Ginsburg were ready to find the death penalty unconstitutional altogether.
       Breyer’s 41-page dissent, longest of the five opinions in the case, lays out point by point a solid argument against capital punishment as practiced for the last four decades. The Supreme Court ruled the death penalty unconstitutional in 1972 as then administered. Four years later, the court allowed capital punishment to resume but under guidelines intended to cure the flaws from the past. “Forty years of experience with those procedures and protections,” Breyer declared from the bench, “shows that they do not work.”
      Breyer speaks and writes from experience. During their long tenures, Supreme Court justices see more death penalty cases up close than any other individual public official: prosecutors, governors, or state or federal court judges. Year after year, the last-minute applications for stays of execution keep coming. And year after year the cases evidence a system that fails to deliver what the Supreme Court promises above its front entrance: equal justice for all.
      For the first of four points, Breyer cited the proven unreliability of the death penalty system. “We now have persuasive evidence,” Breyer declared, “that innocent individuals have been executed and that more than 100 individuals convicted of capital crimes and sentenced to death have later been fully exonerated.” In addition, “the rate of procedural error in capital trials is alarming, well over 60 percent,” he said.
      Justice Antonin Scalia, perhaps the most outspoken defender of capital punishment on the court, has insisted in the past that there is no evidence of an innocent person having been put to death in the United States. He chose not to debate the point in his nine-page reply to Breyer. Instead, he argued with hypertechnical textualism that a wrongful conviction does not implicate the Eighth Amendment’s prohibition against cruel and unusual punishments.
      After unreliability, Breyer turned to his second point: arbitrariness. Despite best efforts, the death penalty system has failed to ensure that the ultimate punishment is reserved for only the most egregious of crimes. Numerous studies have shown that race, gender, and geography affect imposition of the death penalty more than “comparative egregiousness.” Breyer noted other, even more troubling factors: the limited resources for defense counsel and political pressure on judges, especially those up for re-election.
      For a third point, Breyer pointed to the long delays between sentences and actual executions: an average of 18 years for executions carried out in 2014. The delays are cruel punishment of themselves, Breyer said, but they also undermine the legitimate justifications for the death penalty: deterrence or retribution. Long after the murder, an execution serves either purpose tenuously at most.
      Scalia responded by blaming the delays on death penalty opponents and judges like Breyer sympathetic to death row inmates’ dubious claims. As rebuttal, Breyer noted that speeding up capital cases would risk increasing the error rate. Many of the documented exonerations came years or even decades later. “Administration of the death penalty can take place swiftly but unreliably or it can take place with long delays but without significant justifying purposes,” Breyer said. “We cannot have it both ways.”
      As his final point, Breyer saw a waning of public support for executions. Among the 31 death penalty states, only seven carried out executions in 2014. In Texas, the number of new death sentences has fallen from 48 a decade and a half ago to only nine last year. And a detailed map shows that even in death penalty states death sentences are concentrated in a small number of counties: for example, Harris County (Houston) in Texas and Shelby County (Memphis) in my home state, Tennessee.
      “We are a court, not a legislature,” Breyer concedes. But these issues, he says, are judicial matters that implicate the Eighth Amendment. The time has come, he and Ginsburg now say, for the Supreme Court to consider the question anew. Full briefing and argument would force the justices to confront the issues with what is expected of them: reasoned judgment, not political rhetoric.