How the Fearmongers Stole Christmas

      With the United States at the bottom of the nation’s worst ever economic depression, a newly elected president summoned Americans to be brave and resolute. “The only thing we have to fear,” Franklin D. Roosevelt said in his inaugural address in March 1933, “is fear itself.” FDR went on to show the same determined fortitude as he put the United States at the head of a worldwide alliance that defeated Nazi Germany and Imperial Japan.
      One by one, FDR’s successors in the White House have been called on just as he was to be brave and resolute in confronting dangers at home and abroad. History can debate their decisions perhaps: Truman in dropping the atomic bomb; Kennedy in defusing the Cuban missile crisis; or the first Bush in rescuing Kuwait and then stopping short of Baghdad. But these and other presidents all understood the wisdom of Theodore Roosevelt’s famous admonition to speak softly but carry a big stick.
      The current crop of Republican presidential hopefuls spread rather than confront fear and confuse bravado with courage and swagger with fortitude. With the lone wolf-style terrorist attack in San Bernardino fresh in mind, the overriding message from the Republican debate last week [Dec. 15] was for Americans to be afraid of ISIS, the self-styled Islamic State. Texas Sen. Ted Cruz called ISIS “the most sophisticated terrorist organization” the United States had ever faced. Former Florida governor Jeb Bush, supposedly one of the sensible ones in the bunch, said that the United States “must destroy ISIS before ISIS destroys us.”
      The butchers of Raqqa may be sophisticated in the use of social media, but they lack the organizational skills that their jihadist rivals in al Qaeda showed in the September 11 attack in 2001. They can capture Americans and other Westerners and murder them on camera. They can conspire with supporters or inspire them to carry out terrorist attacks. Note, however, that the San Bernardino terrorists, Syed Farook and his wife Tash Malik, apparently were inspired not by ISIS but by the al Qaeda cleric Anwar al-Awlaki.
      In any event, ISIS poses no existential threat to the United States. ISIS cannot destroy the United States, but it can lead Americans to betray American principles. Thus, Republican presidential candidates call for closing the door to refugees fleeing the Syrian civil war, in shameful imitation of the United States’ craven policy toward Jewish refugees at the start of World War II. The GOP frontrunner Donald Trump goes a step further by proposing to ban all Muslim immigrants and dares to liken his proposal to the disgraceful internment of Japanese Americans during World War II.
      Politicians naturally pander to public hysteria, but the panic was fed last week by a respected legal academic, Eric Posner of the University of Chicago Law School. Writing in the emagazine Slate, Posner called for making it a crime to view websites that “glorify, express support for, or provide encouragement for ISIS or support recruitment by ISIS,” or to distribute images from such sites or encourage people to access such sites. The penalties for violations would start with a government letter for a first offense but would escalate to prison sentences.
      Posner acknowledged some practical difficulties. As one example, he would make exceptions for bona fide journalists and researchers. But Posner batted away any concerns about freedom of speech. He approvingly noted that the government punished Southern sympathizers during the Civil War, anti-draft protesters during World War I, and Nazi sympathizers during World War II. None of these examples was anything for the United States to be proud of.
      The country is at war, Posner writes, and, yes, it is a war of ideas. But the great justice Oliver Wendell Holmes Jr. answered that concern in his famous dissent in Abrams v. United States (1919), one of the discredited World War I cases. The First Amendment presumes that truth will emerge from a free market in ideas, Holmes explained. “That at any rate is the theory of our Constitution,” he wrote.
      Apart from any legal niceties, banning jihadist websites plays to the enemy’s view that the United States is at war with Islam. As the young commentator Jon Green notes on America Blog, ISIS and other anti-American Muslim leaders charge the United States and the West generally with hypocrisy in touting our freedoms but failing to extend them to Muslims. Green mockingly suggests that Posner’s article is a valuable recruiting tool for ISIS, so perhaps it ought to be censored.
      More ominously, too many Americans have been feeding the ISIS narrative by open expressions of Islamaphobia — not just loudmouthed crazies at public events but even government officials. In a telling episode last week, a rural county in Virginia shut down its schools for a day after word spread that a teacher in a class on world religions had had her students write a verse from the Koran in Arabic calligraphy as a classroom exercise.
      The widespread intolerance toward Muslims clashes discordantly with the spirit of the Christmas season. And President Obama used his end-of-year news conference to echo FDR’s message from eight decades earlier. Americans could best confront ISIS, Obama declared, by “refusing to be terrorized.” ISIS is an enemy to be reckoned with, not to be feared. And Pogo's admonition seems to apply: “We have met the enemy, and he is us.”

Hurdles for Changing "One Person, One Vote"

      The now famous “one person, one vote” rule for reapportionment and redistricting case stems from a Supreme Court decision in 1963 authored by Justice William O. Douglas. With the opinion still in the drafting stage, one of Douglas’s clerks suggested changing the phrase to “one voter, one vote,” according to an account by historian Douglas Smith in his book On Democracy’s Doorstep. Douglas stuck with what he had written..
      In the 50-plus years since, state legislatures have all but universally followed that phrasing to redraw district lines on the basis of total population, not voter population. But now the Supreme Court is being asked instead to require that state or municipal governments equalize legislative districts on the basis of the number of eligible voters, not on total population.
       The argument by the Texas plaintiffs in Evenwel v. Abbott would result in a political sea change benefiting Republican and rural areas and disadvantaging Democratic and urban areas with larger numbers of children, disenfranchised felons, and non-citizens, whether documented or not. The argument seems likely to fall short, given the evident opposition from liberal justices and the limited interest among conservatives. But even a limited ruling recognizing states’ discretion to use voter instead of total population could create the potential for more mischief in the already seamy political process of legislative redistricting.
       The two Texas plaintiffs, Sue Evenwel and Edward Pfenninger, live in East Texas state Senate districts that have significantly larger number of eligible voters than the average Senate district. Their attorneys argue, in a lawsuit engineered by a conservative legal gadfly, that even though the districts are roughly equal in total population, their votes have less weight than those of voters in districts with fewer eligible voters.
       The lawyers base their case in part on a Supreme Court decision, Burns v. Richardson (1966), that allowed Hawaii to use the number of registered voters instead of total population to draw state legislative districts. The majority opinion, written by Justice William J. Brennan Jr., treated registered voters as an acceptable alternative to total population because of “the concentration of military personnel and other transients” on Oahu, Hawaii’s most populous island.
      Some 35 years later, Justice Clarence Thomas called in a municipal redistricting case from Houston for the Court to clarify the meaning of the “one person, one vote” test. Plaintiffs in Chen v. City of Houston (2001) complained, just as the Evenwel plaintiffs do now, that the equal-population districts were substantially unequal in terms of citizen-voter age populations. Thomas was alone in calling for the Court to hear the case. “[A]s long as we sustain the one-person, one-vote principle, we have an obligation to explain to States and localities what it actually means,” he wrote.
      Thomas got his wish when the Court agreed in late May to hear the new Texas case. The suit is being bankrolled by the so-called Project on Fair Representation, an organization that Edward Blum founded and has used to mount previous Supreme Court legal challenges to affirmative action and the federal Voting Rights Act. Conservative legal groups filed amicus briefs supporting the proposed mandate to use voter population, while liberal and traditional civil rights groups argued for total population as the customary standard.
      Apart from any partisan considerations, the plaintiffs in the new case are going up against constitutional text, historical tradition, and practical difficulties. The Constitution uses total not voter population to apportion seats in the House of Representatives among the states. In oral arguments, Justice Elena Kagan asked the plaintiffs’ lawyer, William Consovoy, how the Constitution could require total population in one place but prohibit that standard in another.
       Justice Ruth Bader Ginsburg pressed Consovoy to similar effect by asking whether states had been violating the Constitution by counting women in apportioning House seats before women gained the right to vote with the 19th Amendment in 1920. To both questions, Consovoy had no better answer than to say, with no logical support, that intrastate legislative districting is different from the apportionment of House seats among states.
      The population figures used for drawing district lines come from the U.S. Census Bureau, but the full-scale every-ten-year Census counts people, not eligible voters. The eligible-voter population figures are less reliable because they come from the less rigorous American Community Survey, which is based on sampling rather than a complete count. In its argument, Texas defended the state’s right to use either total population or voter population, but a leading academic expert, Stanford law professor Nathaniel Persily, argued strongly in a friend-of-the-court brief that the voter population figures are not good enough, even for government work.
      Chief Justice John G. Roberts Jr. signaled his support for counting voters, not total population. “It is called one person, one vote,” Roberts said at one point. “That seems designed to protect voters.” Justice Samuel A. Alito Jr. also seemed likely to side with the challengers. Thomas asked no questions, as usual, but his view seems indicated from his previous call to consider the issue.
      Oddly, Justice Antonin Scalia asked no questions of any of the three lawyers. Smith, who attended the argument, said he was “surprised” that Scalia and the other conservatives were not more engaged in the plaintiffs’ argument. And the effect of their position, he said, would be “staggering” in political terms. “It would ironically return power to the rural areas that had all the power” before the reapportionment revolution, Smith said.

Will Black Lives Matter for Justices?

      Racial tensions had been increasing on the University of Missouri’s campus for weeks as black students complained of what they regarded as the administration’s failure to deal with a rash of anti-black incidents. But it took a threatened strike by Mizzou’s football team last month to force university president Timothy Wolfe to resign.
      African Americans comprise about 7 percent of the campus’s 35,000 students, but those numbers were not enough to prompt a response until the predominantly African American gridiron squad massed in biracial solidarity. “If you look at black undergraduate men, they could do very little in defense of themselves, given their small numbers,” Shaun R. Harper, director of the Center for the Study of Race and Equity in Education at the University of Pennsylvania, told the Washington Post. “Given the large number of black men on the football team there, they can do something and they did something.”
      The Supreme Court returns to the issue of race-conscious university admissions this week [Dec. 9] against the backdrop of a flurry of racial protests at campuses all across the country. Traditional civil rights groups say the events underscore the reality that African American and Latino students continue to feel isolated on predominantly white campuses even as their numbers increase somewhat. “No one can dispute that race still matters on campuses around the country,” says Marisa Bona, regional counsel for the Mexican American Legal Defense and Educational Fund (MALDEF).
      Yet there is also some fear on that side of the case that the justices may react negatively to campus debates that dig up old historical wounds and at times seem to threaten academic freedom. “The justices may think some of this is overblown,” says Sherrilynn Ifill, president of the NAACP Legal Defense and Educational Fund. But Ifill says the court should view the debates as healthy. “That’s what universities are designed to do,” she says.
      The justices take up the issue in a second look at what proponents says is the limited use of race in admissions at the University of Texas’s flagship Austin campus.  In the court’s first ruling, Fisher v. University of Texas (2013), the court voted 7-1 to require the Fifth U.S. Circuit Court of Appeals to reconsider its decision upholding the university’s admissions policies. In an opinion by Justice Anthony M. Kennedy, the court held that the constitutional standard of strict scrutiny requires federal courts to closely examine how admissions policies operate in practice. The appeals court had gone wrong, Kennedy said, by deferring too much to the school’s description of the process.
     The appeals court upheld the admissions policies a second time. The court’s conservative bloc may now feel the need to be more direct in narrowing any role for race in college and university admissions. The lawyers challenging the policies on behalf of Abigail Fisher, an unsuccessful white applicant for the entering class of 2008, insist that that the use of race “must be a last resort — not the rule.” Some of the conservative groups on their side go further and want to bar any consideration of race whatsoever, a position long advocated by conservative justices Antonin Scalia and Clarence Thomas.
      The Austin campus reflects the rapid growth of Texas’s Latino population; Hispanics comprise nearly 20 percent of the student body, but African Americans only 4.4 percent — down slightly from a year ago. Those numbers are as large as they are in part because of the so-called Top Ten Percent law adopted in the late 1990s, which guarantees admission to the top 10 percent of the graduating class of any public high school in the state.
      That law increases minority admissions simply because most schools in Texas are identifiable as predominantly white, black, or brown. UT says its limited use of race helps ensure “intra-racial diversity” by allowing admission of minority students from predominantly white schools who fall below the 10 percent threshold in their class.
      Ifill endorses that goal because it presents a more complete picture of demographic diversity to all UT students. “I want them to know that not all African American students come from the Third Ward in Houston,” she says. “I want them to know that there are Latino students who don’t speak Spanish.”
      The number of minority students admitted through the race-conscious procedures is relatively small, but UT’s lawyers contend the policies help ensure a “critical mass” of minority students not just overall but in specific departments and programs. At the first round of arguments, Chief Justice John G. Roberts Jr. pressed UT’s lawyer on his inability to precisely define “critical mass.” In an online commentary this round, Richard Sander, a UCLA law professor critical of racial preferences, says universities seeking to use race-conscious admissions should be required to show just how far they have to go to meet the “critical mass” goal.
      The Missouri experience indicates that “critical mass” is an inevitably elusive concept. A decision imposing an unrealistic burden on schools to defend race-conscious admissions could have a dramatic impact on minority enrollments in states with nothing comparable to Texas’s Top Ten Percent law.
      Kennedy has never voted to uphold race-based admissions. But Ifill sees his critical vote last term in upholding use of the Fair Housing Act to break down residential segregation as recognizing “some role” for race consciousness in government policies. All eyes will be on Kennedy during the arguments on Wednesday as he is likely to hold the pivotal vote in this case too.

Scalia's Zingers Good Copy in Slow News Month

      Supreme Court reporters will never lack for good copy as long as Antonin Scalia continues serving as a justice. In an otherwise slow news month at 1 First Street, Scalia delivered two zingers for the Supreme Court press corps. In separate campus appearances a week apart, Scalia compared homosexuals to child molesters and earlier invited defiance of Supreme Court decisions by anyone who disagrees with a specific ruling.
      Both comments came against the backdrop of the court’s ruling in June to guarantee marriage equality for same-sex couples nationwide. Scalia vigorously dissented from the decision, just as he had done in the court’s three previous gay rights rulings over the past two decades. With the first comment, Scalia implicitly endorsed the refusal of some public officials to recognize same-sex marriages. And with the second he reiterated his view that the court had overstepped by deciding an issue that should have been left to elected legislators.
      Scalia made the remarks in campus appearances — the first before Princeton University’s Union League [Nov. 11] and the second before a general student audience at Georgetown Law School [Nov. 16]. Both events were unrecorded, so my views are based on accounts published in news media, print and on-line.
      At Princeton, Scalia’s interlocutor was Robert George, a professor of jurisprudence at the university and a leading academic opponent of marriage rights for same-sex couples. George published an account of Scalia’s remarks on his Facebook page. He paraphrased the justice as saying that public officials have no general constitutional obligation to treat as binding a Supreme Court decision that lacks a warrant in the text or original understanding of the Constitution.
      George said that Scalia specifically mentioned the same-sex marriage decision, Obergefell v. Hodges, and the line of Supreme Court decisions keeping church and state separate. Seemingly, Scalia did not specifically mention Kim Davis, the county clerk in Kentucky who defied the marriage decision by refusing to issue licenses for same-sex couples. But Scalia surely is aware of Davis’s refusal: she was jailed for a week for contempt of a lower federal court order.
      Scalia buttressed his stance by citing Abraham Lincoln’s somewhat misunderstood suggestion that the court’s pro-slavery decision in the Dred Scott case did not bind public officials who were not parties to the case. Lincoln never actually refused to follow the court’s decision, however, and the more recent history of defiance of Supreme Court decisions is an unhappy one. Segregationist officials in the South mounted “massive resistance” to the court’s school desegregation ruling in the 1950s, and their views helped justify the violence and intimidation directed against black school children in the ensuing years.
      The same-sex marriage decision has provoked less resistance, none of it violent, but Scalia’s remarks can only encourage others to follow Davis’s example in turning away same-sex couples at the marriage bureau’s door. Justice Anthony M. Kennedy, author of the decision, took a different stance when he addressed the same issue at a Harvard Law School appearance in late October. Kennedy suggested that a public official with conscientious opposition to the ruling should simply resign instead of refusing to comply with the decision.
      Scalia’s remarks on the marriage decision at Georgetown were less direct but if anything more incendiary. According to the New York Times’s account, Scalia said the decision had no constitutional basis and suggested the rationale for the decision could be applied to child molesters.
      “What minorities deserve protection?” Scalia asked rhetorically. “What? It’s up to me to identify deserving minorities?” He went on. “What about pederasts? What about child abusers? This is a deserving minority. Nobody loves them.”
      Scalia surely knows that gay men have been discriminated against for decades based on an unreasoning fear of them as sexual predators. So, for those who still disapprove of homosexuality, Scalia’s remarks were the equivalent of shouting fire in a crowded theater.
      In any event, Scalia’s remarks fail in two regards. First, the court’s majority based the marriage decision primarily on due process instead of equal protection grounds. Kennedy reasoned that the right to select one’s marriage partner was “inherent in the concept of individual autonomy” protected by the Due Process Clause. The equal protection rationale received scant attention, as Chief Justice John G. Roberts Jr. noted in his dissent.
      Scalia is entitled to disagree with what is called “substantive due process,” but his critique of the courts’ role in applying the Equal Protection Clause simply makes no sense. The constitutional provision that states cannot deny “the equal protection of the laws” to “any person” is not self-defining. The courts inevitably have the role of defining what legal distinctions fall within the prohibition.
      The Equal Protection Clause would be a nullity if it were left to legislators to decide what groups could be treated unequally. Under Scalia’s logic, racial segregation would still be legal unless legislators decided to end it. Ditto, sex discrimination.
      Scalia’s remarks may have been unscripted, but that is no excuse for spouting legal theories more in the manner of Fox News than an academic venue. In the political context, Americans have a present-day example of a supposedly serious figure gaining attention by spouting inanities and absurdities. So it is fair to suggest that Scalia has become, if he has not always been, the Donald Trump of the Supreme Court lecture circuit.

Police Get "Super Powers" From High Court

      Richard Nixon ran for the presidency in 1968 in part by campaigning against the Warren Court for its criminal law decisions that he said “handcuffed” the police. Nixon appointed a new chief justice, Warren E. Burger, and three associate justices who started the court’s shift to the right that has continued ever since.
      Within the past two decades, the court has not merely backed away from adding any new constraints on police. Instead, according to Georgetown law professor Paul Butler, the court under two conservative chief justices — William H. Rehnquist and John G. Roberts Jr. — has issued decisions that give police “super powers” to arrest, to racially profile, and even to kill.
      Butler, an African American who has become a leading critic of racism in the criminal justice system, delivered his critique as keynote speaker at a daylong symposium “Police/State: Race, Power, and Control” sponsored by the Georgetown Law Journal [Nov. 20]. (Disclosure: I was editor in chief of the Journal, volume 69, a few years before the current EIC was born.) Butler provocatively declared that the most important police-related issue today is not illegal police misconduct but actually legal police conduct.
      Butler made no mention of the two major Warren Court decisions aimed at regulating police practices: Mapp v. Ohio (1960), the decision that bars use of illegally obtained evidence, and Miranda v. Arizona (1966), the ruling that requires police to inform suspects of their rights before custodial interrogation. He could have detailed the many subsequent decisions that have narrowed the applications of those decisions even while leaving them on the books.
      Instead, Butler listed decisions largely unknown to the general public that have given the court’s blessing to questionable police conduct. Butler followed a series of speakers who documented the racial disparities in criminal justice dramatically detailed in Ferguson, Mo., and equally found nationwide. “The court has created a legal platform for black lives not to matter to the police,” Butler said.
      On their face, the three decisions in Butler’s list have nothing to do with race. Indeed, a white woman was the unfortunate victim of police overreaching in one of the rulings. In the real-world context, however, Butler argues that police use of their “super powers” inevitably means that black and brown people lose and white people win.
      Chronologically, the list begins with a Rehnquist Court decision, Whren v. United States, that upheld the convictions of two African American men following a traffic stop in a “high drug area” in Washington, D.C. The plainclothes vice officers said they stopped the defendants’ truck because it drove away from an intersection at an “unreasonable” speed. The defendants argued that the traffic stop was a pretext and that the officers had singled them out because of their race.
      Writing for a unanimous court, Justice Antonin Scalia said the officers’ “subjective intentions” did not matter as long as they had an objective basis for the stop. With racial profiling already being challenged in lower courts, Scalia acknowledged that the Constitution prohibits race-based selective enforcement, but he relegated that issue to the impossible-to-meet standard of intentional discrimination. In operation, the decision makes racial profiling all but impossible for defendants to challenge or for courts to police.
      A second Rehnquist Court decision, Atwater v. Lago Vista (2001), widens police power to arrest after routine traffic stops. A police officer in Lago Vista, Texas, stopped Gail Atwater for driving without a seat belt and took her into custody. Atwater argued that the arrest for such a minor offense was an “unreasonable” seizure under the Fourth Amendment. The court disagreed in a 5-4 decision written by Justice David H. Souter. Even though Atwater is white, the impact falls on African Americans and Hispanics given the statistics that show them more likely than whites to be traffic-stopped or arrested once stopped.
      In a third case, the Roberts Court in effect gave police a license to kill. The 8-1 decision in Scott v. Harris (2007) rejected a federal civil rights suit by a Georgia man, Victor Harris, who was left permanently paralyzed after police shot him in a high-speed automobile chase. Writing for the court, Scalia found the police conduct reasonable given “the actual and imminent threat” that Harris supposedly posed for the officers, other drivers, or pedestrians. In a lone dissent, Justice John Paul Stevens argued the case should have been allowed to go to a jury.
      Just this month, the court issued a summary ruling that makes clear police have no obligation to choose a non-lethal alternative for terminating a high-speed chase. The 8-1 ruling in Mullenix v. Luna [Nov. 9] found a Texas state trooper entitled to qualified immunity for fatally wounding the suspect-driver in misdirected shots aimed at disabling the vehicle. "The Court has [ ] never found the use of deadly force in connection with a dangerous car chase to violate the Fourth Amendment,” the unsigned opinion states.
      The court is not to blame for other problems highlighted in the symposium. Congress and state legislatures bear responsibility for the mass incarceration that stems from overcriminalization and harsh mandatory minimum sentences; local authorities are to blame for the fines and fees that often land indigents behind bars. But a court that arms police with super powers contributes to the widespread lack of confidence in equal justice under law.

Supreme Court on C-SPAN, With Warts and All

      The public affairs cable channel C-SPAN marked the halfway point of its series “Supreme Court Landmark Cases" last week [Nov. 9] with one of the court’s worst decisions ever:  Korematsu v. United States, the ruling that upheld the World War II internment of Japanese-Americans.

      One of the other decisions covered in the 12-part series also ranks high on the worst-ever list: Scott v. Sandford, the pre-Civil War decision commonly known as the Dred Scott case that barred citizenship for African-Americans, free or slave. At least three of the other historic cases in the series are also generally viewed as mistakes, and four of the more recent decisions remain somewhat to very controversial despite some degree of acceptance for each.

      In all, only one of the featured decisions is universally acclaimed: Brown v. Board of Education, the unanimous Warren Court ruling that outlawed racial segregation in public schools. Whether or not intentional, the series serves to remind viewers that the Supreme Court is far from infallible. “Just as the country has warts and all,” says executive producer Mark Farkas, “the court has those as well.”

      C-SPAN deserves major props for the series, telecast on Monday evenings and produced in cooperation with the National Constitution Center. The 12 cases are presented in chronological order, starting with the Marshall Court’s power-grabbing decision in Marbury v. Madison (1803) and ending on Dec. 21 with the still very contentious abortion rights ruling Roe v. Wade (1973).

      Farkas, a producer at C-SPAN for 30 years, says the goal of the series “was to be representative of a number of different kinds of decisions the court has made and to be representative of our country’s history.” And the watchword, he says, was to convey the cases in human terms to be fully accessible for a wider audience.

      Farkas has no legal training, nor does the program’s host: Susan Swain, C-SPAN’s president and CEO. Swain is joined in each 90-minute program by two experts, typically academics but sometimes practicing lawyers.

      For the Dred Scott case, both experts — George Washington law professor Christopher Bracey and University of Michigan legal history professor Martha Jones — emphasized that Chief Justice Roger Taney was not only morally wrong but historically inaccurate in the court’s main opinion. Taney was wrong, the professors explained, in stating that blacks had never enjoyed citizenship anywhere in colonial America or in post-independence United States.

      The experts for the Korematsu case similarly spoke with one voice in condemning the 6-3 decision. Karen Korematsu, who now directs a civil rights institute that bears her father’s name, and civil rights attorney Peter Irons, author of Justice at War, both made clear the ruling was infected with anti-Japanese racism and gave too much credence to the wartime military authorities.

      The chosen experts openly disagreed, however, about the court’s decision in Lochner v. New York, the 1905 ruling to strike down a New York law limiting the hours of bakery employees. The ruling gave its name to a 30-year stretch of Supreme Court decisions striking laws regulating the economy in ways favorable to workers and consumers and unfavorable to industry.

      Randy Barnett, a Georgetown law professor and author of Restoring the Constitution: The Lost Presumption of Liberty, defended the 5-4 decision on the ground that the New York law was an arbitrary infringement of contract rights. From the opposite side, Paul Kens, a professor of political science at Texas State University and author of Lochner v. New York: Economic Regulation on Trial, echoed the dissenting justices in depicting the decision as motivated by ideology rather than law.

      Implicitly, the series underscores the court’s complex relationship with public opinion and the political branches of government. In the Dred Scott case, pro-slavery justices set themselves against advancing anti-slavery forces. In Lochner, the court’s majority aligned themselves with industry and capital as the populist, progressive, and labor movements were gaining strength.

      In Dred Scott and to some degree in Lochner, the majority hoped to be settling a conflict that was roiling the nation. Taney thought the decision would settle the slavery issue once and for all. The Lochner majority saw the ruling as a way to limit the zeal of the reform-minded. In both cases, the court misjudged.

      The court misjudged in Korematsu and in a second wartime case featured in the series. The unanimous opinion by Justice Oliver Wendell Holmes Jr. in Schenck v. United States (1919) upheld the convictions of Charles Schenck and Elizabeth Baer for distributing an anti-draft pamphlet during World War I. Holmes joined with Justice Louis J. Brandeis in dissenting opinions in the 1920s that laid the groundwork for the more speech-protective approach now established as First Amendment law. Korematsu remains on the books, but the recent decisions in Guantanamo-related cases require some judicial process for wartime detentions.

      Still to come are two of the Warren Court’s criminal law rulings: Mapp v. Ohio (1960), the exclusionary rule case, and Miranda v. Arizona (1966), which requires police to inform suspects of their rights before interrogation. In those cases, the court got ahead of public opinion, as it did to some extent in Brown and more so in Roe v. Wade.

      The court’s success over time, however, can be seen in the facts that Miranda is now a part of the national culture and Roe’s essential holding survives even if battered. Credit C-SPAN with providing an informative and watchable exploration of how the court formed those successes — and its notable failures.

      Up next: The Youngstown steel seizure case (Nov. 16).

Path Toward Transgender Rights Not Yet Certain

       Transgenders gained more visibility during the past two years than at any time since Christine Jorgenson’s transition now more than 60 years ago. Time used a May 2014 cover to proclaim “the transgender tipping point,” while HBO debuted the award-winning comedy series “Transparent” last fall. And “call me Caitlyn” Jenner drew a record-setting TV audience in May as she went up close and personal for two hours with ABC’s Diane Sawyer.
       Fear-mongering on transgender rights, however, proved to be politically effective last week in dooming a broad equal rights ordinance in Houston, the nation’s fourth most populous city. An omnibus anti-discrimination measure officially entitled the Houston Equal Rights Ordinance (HERO) went down to defeat in a referendum on Tuesday [Nov. 6] at the hands of 61 percent of the voters.
       Public opinion polls demonstrate increasing acceptance of transgenders. A poll conducted after the Caitlyn Jenner broadcast by the British-based market research firm found that a majority of those surveyed — 53 percent — saw being transgender as “morally acceptable.” Still, 31 percent of those surveyed found it unacceptable. A narrow plurality — 41 percent to 39 percent — said they would be “upset” or “very upset” if their child said he or she was transgender.
       Social and political conservatives exploited that discomfort in Houston in defeating what they called “the bathroom ordinance.” In a radio ad, the former Houston Astros star Lance Berkman warned, “No men in women’s bathrooms; no boys in girls’ showers or locker rooms.”
       Houston’s openly lesbian mayor Annise Parker aptly accused opponents of mounting a “campaign of fear-mongering and deliberate lies.” She and other supporters emphasized that existing law, unchanged by the ordinance, prohibited entering a restroom of the opposite sex with the intent “to create a disturbance.”
       Equal rights advocates from the White House on down decried the result, but transgender rights advocates must do more than view with alarm to realize their goal. Gender identity remains a third rail of civil rights legislation; the tipping point may have been reached, but the path to future acceptance and equality is unlikely to be smooth or uninterrupted.
       In an unintended coincidence, the Houston referendum came the day after the federal government adopted for the first time the formal position that discrimination on the basis of gender identity is already illegal as sex discrimination. The U.S. Department of Education’s Office of Civil Rights took that stance in an action against a suburban Chicago school district for restricting a transgender girl’s access to the girls’ locker rooms and athletic facilities.
      The school district in the suburban village of Palatine had gone at least part of the way in trying to accommodate the transgender girl identified only as “Student A.” The student, born male but self-identified as female from an early age, was allowed to register under a female name and participate on girls’ athletic teams.
       The school district’s initial effort to balance her rights with the privacy rights of other girls meant that she had to change in a single-user restroom, away from her teammates. The arrangement caused the girl to be late getting to class and to miss some important team communications.
       Now, the school wants the girl to change in the locker room but behind a privacy curtain. Representing the girl, lawyers for the American Civil Liberties Union, argue she should be allowed to make that decision voluntarily.
     In a 14-page letter [Nov. 5], the Education Department said that the school’s policy violated Title IX, the provision that prohibits sex discrimination by schools receiving federal assistance. “Unfortunately, Township High School District 211 is not following the law because the district continues to deny a female student the right to use the girls’ locker room,” Catherine Lhamon, the assistant education secretary for civil rights, explained in a statement.
      Mara Kiesling, executive director of the National Center for Transgender Equality, says the Illinois case is the exception, not the rule, among school districts nationwide. Most schools are accommodating transgender students with little difficulty or controversy. But she acknowledged that complaints from parents in the Palatine district have reached the center’s office in Washington.
      Daniel Cates, superintendent of the 12,000-student school district, told The New York Times that parents had made it clear they wanted “some measure of privacy expectation” in locker rooms. Cates insisted the school system has not violated Title IX but said he hoped to negotiate a settlement with the Education Department, as the department offered in its letter.]
      The defeat in Houston should not have come as a surprise. Twice before, Houston voters had gone to the polls to reject gay rights measures, in 1985 and 2001. Houston itself may be a blue, increasingly diverse jurisdiction, but it is still part of Texas, a determinedly red state despite its rapidly increasing Latino population.
      In the aftermath, political observers blamed supporters themselves for the defeat. While outspending opponents, the supporters supposedly failed to develop a politically effective message to answer them. Bob Stein, a political scientist at Rice University in Houston, told the Houston Chronicle that supporters should have warned about the potential economic consequences of rejecting the ordinance. “It doesn't take a rocket scientist to figure out that the economic argument was a salient argument,” Stein said.
      Politics and law intertwined in the seesaw, decades-long fight for marriage equality. For transgender rights advocates, the problem in Houston needs to be merely a reminder that the path ahead is uncertain however sure they may be of the goal.

NRA Hired Gun Targets Assault Weapons Ban

      The Supreme Court may have to decide sometime whether the Second Amendment includes a personal right to “keep” assault weapons equipped with large-capacity magazines in the home and possibly to “bear” them on public streets as well. Two federal appeals courts have said no within the past six months, but the gun lobby’s paid intellectual champion is up in arms over the use of a relaxed constitutional test that he says relegates the Second Amendment to second-class status.
      In the more recent of the decisions, the Second U.S. Circuit Court of Appeals on Oct. 19 upheld the assault-weapons bans enacted in New York and Connecticut in the wake of the Sandy Hook School massacre. Earlier, the Seventh U.S. Circuit Court of Appeals in April upheld a similar ban adopted by the Chicago suburb of Highland Park. David Kopel took to the blogosphere a few days after the Second Circuit decision to denounce what he called the “feeble” form of intermediate scrutiny the appeals court applied in upholding the two laws.
      Kopel’s credentials need to be noted before proceeding further. His resume has the earmarks of scholarship: Ivy League degrees, adjunct law school professor, “research associate” at the Cato Institute, multiple books, and oodles of articles in law journals as well as general media. He is also research director at the Independence Institute, a Denver-based “think tank” that bills itself as “freedom’s first line.”
      Unmentioned on those web sites are the generous sums that Kopel and the Independence Institute have reportedly received over the years from the National Rifle Association (NRA). Writing for The Progressive, the veteran journalist Frank Smith reported back in April 2014 that Kopel had benefited from a total of $1.4 million in grants from the NRA to himself or the institute over the period 2004-2011.
      Smyth reported that Kopel acknowledged the funding but said he has no obligation to disclose it. Apparently, the Washington Post and the Post-published blog The Volokh Conspiracy feel the same way: Kopel’s lengthy ID includes nothing about the NRA. Smyth was prompted to write back in 2014 after the New York Times decided to mention the NRA funding in the author ID for Kopel when it published one of his opinion pieces.
      Whatever the source of his strongly held views, Kopel identifies the issue that the Supreme Court must answer some day: what level of constitutional scrutiny to apply to laws limiting the Second Amendment right that the court created by a one-vote margin just seven years ago. In two decisions, District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), the court went no further than to recognize a right to possess handguns inside the home for self-defense.
      Gun control advocates rightly criticize the decisions as upsetting a long-held view of the Second Amendment as limited to state militias, just as the prefatory clause seems to suggest. But even if the ruling opened a Pandora’s box, it lifted the lid only slightly. In Heller, Justice Antonin Scalia implied that any number of firearms regulations would still pass constitutional muster, including laws prohibiting the possession of firearms by criminals or the mentally ill or the carrying of firearms in sensitive places such as schools or government buildings.
      This is much different from the kind of strict scrutiny applied in First Amendment cases: criminals and the mentally ill have free speech rights, and so do students and visitors to government buildings. So, as precedents, Heller and McDonald point to a constitutional analysis that takes full account of the public’s interest in public safety.
      In its ruling in New York State Rifle and Pistol Ass’n v. Cuomo, the Second Circuit acknowledged that the New York and Connecticut laws banning certain semiautomatic weapons with specified features burdened a Second Amendment right. But it said the burden was “not severe” because assault weapons are in less common use than handguns.
      The court went on to uphold the bans because assault weapons are “disproportionately used in crimes and particularly in criminal mass shootings.” The three Democratic-appointed judges were unanimous in the decision, written by the veteran judge José Cabranes.
      Kopel complained that the court misapplied intermediate scrutiny by taking the government’s position at face value and by failing to consider a “less restrictive” alternative. That approach would have upheld the handgun bans struck down in Heller and McDonald, he said.
      The Seventh Circuit’s decision in Friedman v. Highland Park also cited the use of assault weapons in mass shootings and then explicitly left the issue to the legislature, not the courts. For the majority, Judge Frank Easterbrook Jr. depicted Heller as a limited decision and declined to plumb its “ambiguous passages” for meaning. “When there is no definitive constitutional rule,” Easterbrook wrote, “matters are left to the legislative process.” Easterbrook’s fellow Reagan appointee Daniel Manion dissented.
      The Supreme Court appears to be in no rush to take on the issue. The Highland Park case has been conferenced three times so far in successive conferences in October. One possibility: the court has decided not to hear the case with one or more justices — Scalia and Clarence Thomas most likely— writing a dissent from the denial; word could come as early as Monday [Nov. 2]. With no circuit conflict, the issue may not yet be ripe, but the justices may also be having second thoughts about just how far they want to go with the newfound Second Amendment.

Wall Street Sharks Boosted by Ruling

      Life is unfair, and life in the stock market is now just a little more unfair after the fallout from a precedent-setting federal appeals court decision that narrowed the definition of illegal insider trading. Congress could strike a blow for fair trading by writing an insider trading law with broader coverage, but securities law experts who favor such a step recognize that it is not going to happen, certainly not with this Congress.
      U.S. Attorney Pareet Bahrara, the prosecutorial scourge of Wall Street, went into federal court last week [Oct. 22] with his head between his legs to drop charges against half a dozen confessed insider traders and a seventh who had been convicted after a jury trial. Bahrara acted under the compulsion of the Supreme Court’s decision earlier this month [Oct. 5] confirming the setback he suffered late last year in two separate insider trading cases.
      The ruling by the influential New York-based Second U.S. Circuit Court of Appeals does not affect the most straightforward type of insider trading: stock trades by the insider himself or herself based on what securities law calls “material, non-public information.” But the ruling, issued in December 2014, will make it harder to prosecute a second category of cases. In those cases, an insider (called the “tipper”) leaks confidential information to a third party (called the “tippee”) who then uses the information to make money in the market before the general investing public gets a clue.
      Bahrara’s office won securities fraud convictions and long prison sentences against two hedge fund managers. Todd Newman and Andrew Chiasson made millions as the end users of a network of market analysts who cultivated contacts with insiders at high-tech companies to get tipped about earnings reports before their release.
      Newman made $4 million from the inside-information facilitated trading and was sentenced after his conviction to 54 months in prison. Andrew Chiasson made $68 million for the hedge fund he managed and owned in substantial part and was sentenced to 78 months. But the Second Circuit reversed those convictions and took the extra step of barring prosecutors from trying again in a retrial.
      Writing for the unanimous three-judge panel, Judge Barrington Parker Jr. said the convictions could not stand because the prosecutors had failed to show that the “tippers” had gotten anything for leaking the information. A conviction in such cases, the court held, requires “an exchange that is objective, consequential, and represents at least a potential gain [for the tipper] of a pecuniary or similarly valuable nature.” Parker, a Democrat elevated to the Second Circuit by President George W. Bush, was joined by two Republican appointees: Ralph Winter and Peter Hall.
      Parker said Bahrara’s office had prosecuted Newman and Chiasson on the basis of a “doctrinal novelty.” In appealing the case to the Supreme Court, the government countered by calling the Second Circuit’s decision “novel” and “unprecedented.” The government argued that the appeals court had contradicted an earlier Supreme Court decision, Dirks v. Securities and Exchange Commission (1983), that found passing information to a relative or friend sufficient to establish insider trading liability.
      The tippers in the Newman and Chiasson were, oddly, never prosecuted, charged civilly, or immunized. The prosecutors never established their motives for leaking information, but common sense suggests that they felt a sense of self-importance as they gave up valuable information to friendly acquaintances in a bar and that they also hoped for some kind of payback from their friends sometime if not immediately. But that hope is not enough for a criminal prosecution under the Second Circuit’s decision.
      At the time of the ruling, the New York Times financial columnist James B. Stewart wrote that this kind of insider dealing “undermines investor confidence in the integrity of the market and creates the perception of a rigged game stacked against the average investor.” In the ruling, Parker is unsympathetic. “Nothing in the law requires a symmetry of information in the nation’s securities markets,” he wrote.
      Securities law expert Peter Henning at Wayne State Law School in Detroit is similarly unmoved. “On Wall Street, they’re all sharks,” Henning, a former SEC enforcement lawyer, says. “If you want to swim with sharks, be careful.” 
      The cases that Bharara dismissed last week included one good-sized shark: Michael Steinberg, a former high-ranking employee at the notorious SAC Capital, whose founder, Steven A. Cohen, has so far escaped prosecution altogether. Steinberg was convicted after trial; the six other cases dropped were against defendants who pleaded guilty, some of whom testified in the Steinberg, Newman, or Chiasson trials.
      Many average investors will be surprised to learn that there is no statute that makes insider trading illegal. The prosecutions stem from the SEC’s interpretation of the broad anti-fraud Rule 10(b) that has been upheld and shaped by the courts. Congress has been urged to write a statute to make the rules clearer and more definite.
      Henning and fellow securities law expert Thomas Hazen at the University of North Carolina Law School are among those who want Congress to do just that. One approach would be to establish a bright line that trading on confidential information is illegal — putting tipper and tippee alike in the crosshairs. Hazen said a congressional staffer asked for some advice on the issue, but he doubts that this Congress will actually tackle the subject. So for now insiders in the Second Circuit's territory can leak and their friends can trade just as long as nothing more than friendship is exchanged.

Business Groups Eye Court for Limits on Class Actions

      Even for Supreme Court nerds, the legal issue in the case argued on Wednesday [Oct. 14] might have seemed impenetrably technical and minimally significant at most. But the stakes in Campbell-Ewald Co. v. Gomez are actually quite high as business groups join the Michigan-based marketing company in backing a legal tactic to kill potential class action suits before they can get started.
      Jose Gomez sued Campbell-Ewald under the federal Telephone Consumer Protection Act for an unsolicited recruiting message the company sent out under contract with the U.S. Navy. The company offered to pay Gomez $1,503 for each unsolicited message and to promise to send no more. Gomez, who had filed the suit as a potential class action on behalf of other privacy-invaded text message users, never accepted the settlement.
      At the Supreme Court, the company’s high-priced Washington lawyer, former U.S. solicitor general Gregory Garre, argued the case was over: moot, in legal terms. Gomez’s attorney, Stanford law professor Jonathan Mitchell, said, in essence, not so fast. And, however technical the issue might seem, the justices divided predictably along ideological lines, with three conservatives eager to kick the case and three liberals not so much.
      The case is one of three that the Roberts Court conservatives have teed up for the term in what appears to be a continuing campaign to rein in class actions. Consumers, workers, and investors use this legal device to pool low-figure legal injuries into financially viable lawsuits against business defendants. Business interests regard them as a form of legal blackmail that companies settle to avoid expensive litigation and the risk of seven- or eight-figure damage awards.
      Two more class action cases are set for argument in November. In Tyson Foods Co. v. Bouaphakeo, the big food processing company wants to thwart a class action brought by workers who say they are being denied overtime for time spent putting on or taking off work-required protective gear (argument: Nov. 10). In the other, Spokeo, Inc. v. Robins, the search engine company is seeking to avert a class action brought under the Fair Credit Reporting Act by a Chicago man allegedly injured by inaccurate information reported about him (argument: Nov. 2).
      The U.S. Chamber of Commerce has joined in each of the cases with various other business and conservative interest groups to urge the court to rule for the companies and limit legal tactics for plaintiffs in future cases. The Chamber has an impressive 69 percent win rate with the Roberts Court: higher than the 56 percent win rate with the Rehnquist Court, according to the Constitutional Accountability Center.
      Those business victories includ several big ones that limit class actions. In the highest-profile decision, the court in 2011 spared Walmart, the nation’s largest private employer, from a big sex discrimination suit brought on behalf of women employees. The 5-4 ruling in Wal-Mart Stores, Inc. v. Dukes, divided along ideological lines, forced plaintiffs’ attorneys to slice the suit into smaller pieces under procedural rules that still blocked success.
      In last week’s case, Garre made clear that class actions are the target in Campbell-Ewald’s seemingly arcane civil procedure question. “As a practical matter,” Garre told the justices, plaintiffs in class actions “get pennies on the dollars for their claim. The big money goes to the class-action lawyers.”
      From the bench, Justice Elena Kagan tried to steer the argument away from that debate. “Both sides have these class action policy arguments,” Kagan told Garre. “But it’s important not to let those drive this pretty technical mootness question.” Kagan, along with liberal colleagues Ruth Bader Ginsburg and Sonia Sotomayor, repeatedly insisted that Campbell-Ewald had not offered Gomez “complete” relief for his claim because he still had a request for attorney’s fees and a permanent court-ordered injunction.
      From the opposite perspective, Chief Justice John G. Roberts Jr. wondered why a court should “waste its time” on Gomez’s case, but he recognized what was at stake. “This is all about class certification,” Roberts told Gomez’s attorney, Mitchell. Conservatives Antonin Scalia and Samuel A. Alito Jr. signaled their distaste for the suit just as bluntly. Alito in particular echoed Garre’s unfavorable opinion about class action lawyers.
      As usual, Justice Anthony M. Kennedy appeared likely to hold the decisive vote. In an early exchange with Garre, Kennedy indicated he was not buying the argument for ditching the case, as a matter of civil procedure. Kagan’s effort to defuse the policy arguments may have been intended to give Kennedy a narrow ground to join the liberal bloc without going back on his previous votes to limit class actions.
      The Obama administration backed the plaintiffs’ side of the case — in contrast to the Bush administration’s support for business defendants in previous class action cases. Liberal groups backed Gomez, but so did the conservative National Right to Work Legal Defense Foundation, which uses class actions to sue labor unions.
      The plaintiffs’ bar fears that a ruling for Campbell-Ewald will give business defendants a road map for blocking class actions by paying off individual plaintiffs one at a time  — in effect, for pennies on the dollar of the potential awards in a mass suit. Given the Roberts Court’s pro-business track record, they have reason to worry.

Hope in Congress for Sentencing Reform?

      Criminal justice reformers have joined with fiscal conservatives in an improbable alliance to reduce the population of the nation’s federal prisons. It turns out that sending low-level drug offenders into overcrowded prisons for years on end, based on mandatory minimum sentences with little leeway for judges to exercise discretion or even common sense, is both expensive and counterproductive. Who knew?
      The broad agreement on federal sentencing reform is behind the impending release of some 6,000 drug offenders at the end of the month under a policy adopted more than a year ago by the U.S. Sentencing Commission with acquiescence by Congress. The long-planned release made front-page news last week, but it “barely scrapes the surface” of the problems in the 30 percent overcapacity federal prison system, according to the Marshall Project, the invaluable compendium of criminal justice news.
      Sentence reformers are now turning their lonely eyes to Congress after broad measures with bipartisan cosponsors were introduced in both the Senate and the House of Representatives. Douglas Berman, a professor at Ohio State University’s Moritz College of Law and author of the comprehensive blog Sentencing Law and Policy, was so encouraged as to foresee the possibility that a bill could reach the president’s desk for signature by the end of this year.
      Berman’s optimism seems at odds with the evidence of dysfunctionality on Capitol Hill, accentuated by Republicans’ chaotic inability to choose their candidate for Speaker of the House. Still, the reformers appear to have succeeded in overcoming their biggest single obstacle by getting the very skeptical Senate Judiciary Committee chairman, Iowa’s Charles Grassley, to sign on as lead sponsor of the Senate measure along with three other Republicans and five Democrats.
      The Senate bill, introduced Oct. 1, runs 141 pages, so long that Berman confessed on his blog that he was not yet ready to analyze it in detail. Grassley confirmed his support in an op-ed in his home state Des Moines Register by describing the provisions as “carefully crafted sentencing reforms . . . that do not compromise public safety or national security.”
      The House bill, a more compact 18 pages, was introduced on Oct. 8 with bipartisan support from the chairman, ranking Democrat, and other members of the House Judiciary Committee. On his blog, Berman described introduction of the Senate bill as a “huge development.” The House measure made him “a bit more optimistic” about possible enactment in 2015.
      Both bills take significant swipes at the mandatory-minimum craze in Congress from the 1980s and ’90s that gave drug offenders and armed felons long sentences beyond federal judges’ ability to soften. Both bills reduce some of the mandatory minimums for drug offenses and eliminate the current three-strike mandatory life provision. That provision parallels laws enacted in several states and upheld by the Supreme Court in 2003 against a challenge under the Eighth Amendment’s Cruel and Unusual Punishment Clause (Ewing v. California, Lockyer v. Andrade).
      The two bills also widen somewhat the existing “safety valve” provision to give federal judges somewhat more leeway to soften sentences in individual cases. The Senate bill creates a second safety-valve to allow judges to sentence some offenders below 10-year minimums, but stresses that defendants convicted of “serious violent and serious drug felonies” will not benefit from the provision. And both bills would apply the provisions retroactively.
      Smooth passage of bills is by no means assured in either chamber. Writing on the blog Crime and Consequences of the pro-law enforcement Criminal Justice Legal Foundation, former federal prosecutor William Otis began picking the Senate bill apart by noting a provision to ease add-on minimums for defendants convicted of using a firearm in a drug felony.
      Otis, an outspoken opponent of sentencing reform as the issue has gained support, noted that senators introduced the bill on the same day as the mass shooting at a community college in Oregon. “What were these people thinking?” Otis asked, even while acknowledging that the Oregon shooter had no apparent connection to drug-dealing.
      Criminal justice reformers have long argued that the long, mandatory sentences that Congress authorized and presidents of both parties signed into law scooped up many low-level offenders. The advocacy group Families Against Mandatory Minimums lobbied to soften the terms and slowly picked up support from libertarians and fiscally-minded conservatives.
      Congress took a modest step in 2010 by passing a bill that eliminated the racial disparity between sentences for crack and powder cocaine. With support for broader steps increasing among conservatives, the Republicans’ gains in the 2014 midterm elections stirred speculation that sentencing reform’s time could be coming.
      Earlier, however, the Sentencing Commission, the independent judicial agency, had voted in April 2014 to authorize two-step reductions in sentences for some federal drug offenders. Once Congress had failed to block the so-called “drugs -2” policy, the seven-member commission directed that releases were to begin in November 2015. The one-year lead time gave federal judges time to rule on individual cases; about 2,000 applications for reduced sentences have been denied so far.
      With bills pending in Congress, Berman raised the question whether the Sentencing Commission could institute some of the reforms on its own. Berman is entitled to his optimism, but longtime Capitol Hill observers may rightly see the latter suggestion as more fruitful than hoping for Congress to act.

For Court's Conservatives, New Term Starts Now

      The Supreme Court opens a new term on Monday [Oct. 5], with conservative justices still licking their wounds after a term when they were on the losing side of most of the most important decisions. But for conservatives, this may be the new season that diehard sports fans are always told to wait until.
      The court has already teed up cases that give the conservatives the chance to deliver a gut punch to public employee unions, limit racial preferences in college and university admissions, and make class actions a little bit harder for consumers and workers. Farther back in the pipeline are new cases on state laws regulating abortion clinics and a second round on the contraception coverage mandate under the Affordable Care Act.
      Out on the hustings during the summer recess, two of the conservatives, Antonin Scalia and Samuel A. Alito Jr., both restated the losing arguments in their dissents from the 5-4 decision to recognize a constitutional right to marriage equality for gay and lesbian couples. Speaking at Rhodes College in Memphis, Tenn. [Sept. 21], Scalia called the decision “the furthest imaginable extension of the Supreme Court doing whatever it wants.”
      Earlier, Alito had complained that the marriage decision opened the door to striking down all sorts of laws under an expansive definition of liberty under the Due Process Clause. “There’s no limit,” Alito said in a friendly interview with conservative commentator Bill Kristol.
      Other liberal victories last term included the 6-3 ruling to uphold health insurance subsidies under the Affordable Care Act and the 5-4 decision to ratify a broad definition of discrimination under the Fair Housing Act. But the final day saw two significant conservative victories, both on 5-4 votes. The court threw out the Environmental Protection Agency’s rules on toxic emission by power plants and rejected a challenge to the drugs used in lethal injection executions.
      Turning the page, liberal experts and advocacy groups are now bracing for a conservative term. The conservative bloc appears to be the driving force in getting some potential game-changers on to the calendar.
      The public employee union case, Friedrichs v. California Teachers Association, is the prime example. In a 5-4 decision in 2014, the court’s conservatives stopped just short of overruling a 1977 decision (Abood) upholding so-called “fair share” laws. Those laws, on the books in 20 states, require non-union members to pay the part of union dues used to represent them in collective bargaining. The new case, financed by anti-union groups, asks the court directly to overrule the prior decision, a ruling that would give non-union members a free ride and hitt unions hard in their treasuries.
      The affirmative action case, Fisher v. University of Texas, also gives the court’s conservatives a second chance to take a bite out of a liberal precedent. UT’s flagship Austin campus uses race as a factor in admitting about 20 percent of its incoming first-year class, as allowed under a 2003 decision (Grutter). Ruling in the first round of this challenge, the court in 2013 told the federal appeals court in Texas to take a harder look at the policy. Now, the justices will be taking a hard look at the appeals court’s conclusion that the university’s policy passes constitutional muster.
      The court’s conservatives have time and again signaled their disquiet with class actions, the procedural tool used to turn de minimis injuries suffered by large numbers of consumers or workers into a viable lawsuit. Among several civil litigation cases, the most important appears to be Tyson Foods, Inc. v. Bouaphakeo, a case brought by workers at an Iowa meat processing plant claiming that Tyson has failed to pay overtime as required by federal law. The company did not keep good records, so the workers used statistical projections to calculate damages. The conservatives are likely to flinch at what they have previously called “trial by formula.”
      The court has not heard an abortion case since the 5-4 decision in 2007 (Carhart II) that upheld the federal law banning so-called partial birth abortions. Anti-abortion groups have used the court’s silence to enact laws regulating abortion clinics, ostensibly to promote women’s health but in reality to close as many clinics as possible. A Mississippi law would close the only clinic in the state; Texas’s law would leave only 10 clinics operating, none in the western part of the state. Those laws seem to run afoul of the court’s 1992 decision, Planned Parenthood v. Casey, that states cannot impose an “undue burden” on abortion rights. But anti-abortion forces hope the Roberts Court will take a relaxed view of that standard.
      The Obamacare contraception mandate is headed back to the court in cases brought by religious nonprofits: examples, a Catholic charity or college. They object on religious freedom grounds to signing a form for their health plans to provide cost-free coverage of contraceptives as required under an Affordable Care Act regulation. Seven out of eight federal courts of appeals to rule on the issue have rejected the argument. But the Roberts Court conservatives took an expansive view of religious freedom in the earlier decision (Hobby Lobby) allowing a private employer to skirt the regulation.
      With 13 cases added on Thursday [Oct. 1], the court now has enough to fill the calendar into January. As always, many cases are only partly ideological; and some, not at all. But on opening day, the court’s conservatives may well be thinking that this, indeed, is their year.

Giving Religious Liberty a Bad Name

      Religion and politics can be a combustible mix, but keeping church and state separate have helped the United States prevent the kinds of sectarian conflagrations seen in many nations around the globe. Justice Sandra Day O’Connor made that point when she joined the Supreme Court’s decision a decade ago to block the display of the Ten Commandments in a Kentucky courthouse.
      “Those who would renegotiate the boundaries between church and state must [ ] answer a difficult question,” O’Connor wrote in McCreary County v. ACLU (2005). “Why would we trade a system that has served us so well for one that has served others so poorly?"
      Today, the same impulse behind McCreary County’s decision to post religious laws in a secular courthouse can be seen in the scattered resistance in a handful of courthouses to recognizing same-sex marriages. Clerks and judges in 13 counties in three states — Alabama, Kentucky, and Texas — are claiming that their religious beliefs allow them, as government officials, to deny or at least disparage the constitutional right of gay and lesbian couples to equality before the law.
      The clerks and judges who are spurning same-sex couples insist that their rights are at stake in the conflict, not those of gay and lesbian couples. “I do not believe we have to check our religious beliefs at the door when we are elected,” Nick Williams, a probate judge in Washington County, Ala., remarked to CBS News correspondent Jericka Duncan.
      Williams has a petition pending before the Alabama Supreme Court seeking an order that would allow him to refuse to issue what the petition filed on Sept. 15 calls “a license to engage in sodomy.” Williams is in effect rejecting two Supreme Court decisions: the ruling in June striking down state bans on same-sex marriage and the decision in 2003 nullifying state laws against gay sex.
      Alabama Chief Justice Roy Moore signaled his intention months in advance of the Supreme Court ruling to defy any decision recognizing same-sex marriage. The Alabama court has yet to act on Williams’ petition; Williams’ attorney says an order would also protect the five other probate judges in the state who are refusing to license same-sex marriages.
      Meanwhile, Kim Davis, the defiant county clerk in Rowan County, Ky., is risking a second confrontation with a federal judge who sent her to jail for disobeying his order to issue marriage licenses to couples, gay or straight. U.S. District Court Judge David Bunning ordered Davis released on Sept. 8 on the condition that she not interfere with marriage licenses any further.
      Davis ordered the marriage licenses changed instead, with her name removed and a notation that the licenses were being issued under the authority of a federal court. Lawyers for the American Civil Liberties Union representing same-sex couples warn that the changes in the form cast doubt on the validity of the licenses.
      Whatever else happens in Davis’s case, she has succeeded mostly in giving religious accommodation a bad name. Earlier polls suggested that the public was closely divided on the somewhat analogous issue whether individuals such as bakers or photographers could claim a religious right to refuse to provide services to same-sex weddings. But a Washington Post-ABC poll released Sept. 15 found 63 percent of those surveyed said Davis should be required to issue licenses and 45 percent even supported her having been jailed for refusing.
      The modern era of religious accommodation began with the Supreme Court’s 1963 decision Sherbert v. Verner invoking the First Amendment’s free-exercise-of-religion clause to allow unemployment benefits to a Seventh Day Adventist  fired for refusing to work on Saturdays, the Adventists’ Sabbath. Significantly for the present context, Adell Sherbert was not seeking to be hired back. A year after the decision, however, Congress included in the Civil Rights Act of 1964 a provision giving employees a workplace right to reasonable accommodations of their religious beliefs.
      The Supreme Court scrapped the First Amendment test set out in Sherbert in the 1990 decision, Employment Division v. Smith. The ruling effectively blocked use of the Free Exercise Clause to gain religious accommodations from generally applicable laws. Congress responded three years later by restoring the previous test as a matter of statutory instead of constitutional law in the Religious Freedom Restoration Act (RFRA).
      RFRA was the basis for the Supreme Court’s controversial Hobby Lobby decision in 2014 allowing private employers to invoke religious beliefs in refusing a requirement to include cost-free contraceptives in employee health plan. In a dissent, Justice Ruth Bader Ginsburg noted that in previous decisions the Supreme Court said religious accommodations would not be allowed if they significantly affected third-parties’ rights.
      In the majority opinion, Justice Samuel A. Alito Jr. batted away Ginsburg’s warning that the ruling threatened enforcement of civil rights laws. But as the gay marriage cases advanced, many states moved to pass or strengthen mini-RFRAs for the precise purpose of allowing anti-gay discrimination.
      So far, the photographers and bakers are losing in courts or administrative agencies. The judges and clerks are stretching the religious liberty argument even further by claiming the right to turn gay and lesbian couples away at the courthouse door. The discord they have stirred up shows once again the wisdom of trying to keep religion and politics, church and state, apart.

On Supreme Court, Republicans Out of the Mainstream

      Supreme Court appointments have been politically charged decisions ever since John Adams appointed his Federalist ally John Marshall as chief justice just before the Anti-Federalist Thomas Jefferson was to succeed Adams as president. So it was only a matter of time before the issue came up in the 2016 presidential campaign.
      Voting experts say Supreme Court issues play little role in swaying undecided voters, but do help political parties play to their respective bases. The base-appealing strategy naturally leads candidates away from the political center, but the GOP hopefuls who discussed Supreme Court appointments in the CNN-hosted debate for “major” candidates last week [Sept. 16] took hard turns to the right in their remarks.
      Ironically, the most sensible remarks came from two of the Republican hopefuls in the second-tier debate. South Carolina senator Lindsey Graham and former Pennsylvania senator Rick Santorum both stood up for Chief Justice John G. Roberts Jr. despite cries for his scalp from conservatives for voting twice in 2012 and again in June to uphold President Obama’s health care reform. Graham called Roberts “one of the most qualified men” to come before the Senate, while Santorum said Roberts has “a long, good record” despite some bad decisions.
      In the main debate, however, Jeb Bush threw Roberts under the bus even though it was Jeb’s brother George W. who appointed Roberts. Bush said that Roberts “has made some really good decisions,” but he then suggested the appointment was a mistake because Roberts “did not have a proven, extensive record.” Bush wrapped up by declaring, “You can’t do it the politically expedient way anymore.”
      Texas senator Ted Cruz pointedly criticized both of the Bush presidents for picking unproven Supreme Court nominees over judges with a demonstrated commitment to right-wing ideology on the bench. In Cruz’s telling, Bush41 chose the newbie federal judge David H. Souter in 1990 over Edith Jones, who had already proven her conservative credentials after five years on the Fifth U.S. Circuit Court of Appeals. Then in 2005 Bush43 passed over another proven conservative judge, Michael Luttig, in favor of Roberts, who had only two years of D.C. Circuit decisions to vet for ideological inconstancy.
      Cruz, who supported Roberts’ confirmation while serving as Texas's solicitor general at the time, now labels the appointment “a mistake,” just as Souter’s appointment had been earlier. “You know, we're frustrated as conservatives,” Cruz said. “We keep winning elections, and then we don't get the outcome we want.” Fact-check: Democratic candidates have won the popular vote in five of the last six presidential elections.
      In Cruz’s counterhistorical scenario, the Jones and Luttig appointments would have changed the results not only in the Obamacare cases but also in this year’s same-sex marriage ruling. Yes, Roberts dissented in the marriage case, but apparently Cruz assumes that Jones, still on the bench at age 66, would have been the fifth vote for the conservatives in the case: no Souter retirement and thus no appointment of Sonia Sotomayor to succeed him.
      Cruz may well be right in imagining how Jones and Luttig would have voted in those cases, but it should be noted that they would have been bucking the consensus position taken by lower court judges in the cases. Out of four federal courts of appeals to rule on the Affordable Care Act, only one held the law unconstitutional. Out of more than 60 federal judges to rule in marriage cases after December 2013, only six voted to uphold same-sex marriage bans, including the two Sixth Circuit judges whose decision the Supreme Court overturned.
      On marriage, public opinion is now also clearly in favor of equal rights for same-sex couples; by now, public opinion also favors the Affordable Care Act though narrowly. So Cruz is arguing in favor of appointing justices outside both the legal and political mainstream. President Reagan tried that with Robert Bork in 1987; the Senate emphatically rejected him: 58-42.
      Former Arkansas governor Mike Huckabee took the Republicans’ colloquy one step further out of the mainstream last week by listing a series of “litmus tests” that he would impose on possible Supreme Court nominees. Among others, Huckabee said he would require a nominee to pledge support for recognizing a fetus as a person. Fetal personhood proposals have been defeated at the polls and rejected in the courts.
      For good measure, Huckabee also questioned the Supreme Court’s role in the constitutional system. “If the court can just make a decision and we just all surrender to it, we have what Jefferson said was judicial tyranny,” Huckabee said.
      In the earlier, second-tier debate, Louisiana governor Bobby Jindal had included Anthony Kennedy along with Roberts and Souter as mistakes by GOP presidents. He vowed, if elected, to appoint “conservative judges, judges that are going to be pro-life, judges that are going to follow the Constitution . . . .”
      In his Senate confirmation hearing, Roberts studiously avoided ideological labels and used his famous umpire metaphor to depict a judge’s role as neutrality. Umpires get booed from both sides, just as Robert has been. But among Republicans who would be president, the model nominee now appears to be somehow who will hew 100 percent to an ideological line that, not coincidentally, correlates directly with the GOP’s out-of-the-mainstream political views.

       Correction: This column originally stated that Cruz voted against Roberts' confirmation; he was elected to the Senate in 2012 and began serving in 2013. H/T: Richard Samp of Washington Legal Foundation, who pointed out the error.

Justice Breyer Takes a Wide Worldview

      Alone among the eight Supreme Court justices who have been married, Stephen G. Breyer chose a spouse from beyond U.S. borders. Breyer has been wed since 1967 to the former Joanna Hare, the daughter of a British viscount and a psychologist who now practices at the Dana-Farber Cancer Institute in Boston.
      Fittingly, Breyer is also the most internationalist-minded of the current nine, including the never-married Elena Kagan. Yes, almost all of them travel abroad from time to time: Anthony Kennedy teaches every year in Salzburg, Austria; John Roberts spent part of the past two summers in distant isles: Malta in 2014, Japan in 2015. But Breyer is the only one who claims fluency in a non-native language: French.
      Breyer has displayed his internationalist sensibilities in meetings at home or abroad with foreign judges and legal officials, in his writings, and in his judicial opinions. Now, Breyer has set out his views on the importance of international and foreign law in his new book being published this week, The Court and the World: American Law and the New Global Realities. And Breyer does not back away from explicitly endorsing the controversial use of international and foreign law — he calls it “cross-referencing” —  in U.S. judicial decisions.
      The subtitle states the thesis. In Breyer’s view, it is not merely desirable but inevitable for U.S. courts, including his, to learn about and take growing cognizance of foreign and international law. The “new global reality” is that the world is a smaller and more interdependent place in the 21st century than ever before.
      Breyer notes that U.S. companies and U.S. consumers can use their computers to enter into transnational dealings without ever leaving their offices or homes. And, as he illustrates from the Supreme Court’s docket in recent years, some of those dealings lead to legal disputes with thorny issues about how to apply U.S. law against the backdrop of law from other countries.
      Citations to foreign and international law in Supreme Court decisions are by no means new. Justice Byron R. White referenced foreign law in the 1986 decision upholding state anti-sodomy laws; Anthony M. Kennedy cited the European Court of Human Rights in the 2003 decision ruling such laws unconstitutional.
      White cited practices in other countries in successive decisions in 1977 and 1982 that ruled out the death penalty for rape or felony murder. But Kennedy’s citation to foreign law in the sodomy decision and in his later opinion to spare juvenile offenders from the death penalty touched a nerve among political and legal conservatives.
      On the court, the conservative justice Antonin Scalia sneers at the practice in his opinions and in public speeches. Foreign laws can “never, never be relevant to the meaning of the U.S. Constitution,” Scalia declared in a luncheon speech at George Mason University School of Law on May 29. “Who cares?” Scalia added. “We have our laws; they have theirs.”
      Breyer begins with cases that require an understanding of foreign law in order to apply U.S. law. As one example, he cites the 2004 decision, over his lone dissent, that a U.S. company could obtain a court order for discovery of evidence introduced in an antitrust proceeding before the European Commission. The decision in Intel Corp. v. Advanced Micro Devices, Inc. turned on whether the European Commission was akin to a judicial tribunal, as the majority believed, or a prosecuting office, as Breyer argued.
      With cases such as that one as background, Breyer eventually acknowledges the proposals introduced in Congress in recent years to prohibit federal courts from citing foreign law in their decisions. Breyer recalls the somewhat analogous effort by Sen. John Bricker in the 1950s to limit the law-making effect of treaties signed and ratified by the United States. The so-called Bricker Amendments were defeated, and the more recent proposals also failed to advance.
      Breyer summarizes the critics’ arguments. The critics may fear that U.S. judges will base decisions not on legal analysis but on “nose-counting” among other countries. The critics view use of foreign law as an infringement of U.S. sovereignty and as an affiliation with the “leftish” views of the worldwide judicial caste.
      Having acknowledged those arguments, however, Breyer rejects them. Judges worldwide find themselves facing similar problems, Breyer says, and U.S. judges may learn from reading the decisions of foreign judges on similar issues. The practice is not new, he emphasizes, but dates back to such great justices as John Marshall. And, in any event, the court’s work makes it impossible to sustain “the sort of hermetically sealed legal environment” that the critics appear to envision.
      Breyer sees a further benefit: the role that U.S. judges as diplomats can play in spreading principles of U.S. law worldwide. He and other justices have met with judges from a long list of countries, here or abroad, to discuss common issues. Behind those meetings lies the hope of spreading such principles as due process, habeas corpus, and the independence of the judiciary.
      “The enterprise is not without setbacks,” Breyer writes in conclusion. “But the effort is worthwhile.” The rule of law, he says, is an essential tool to meet the global challenges of the 21st century. U.S. judges and citizens alike, he says, should work at meeting those challenges together.

First Amendment Law Takes a Hit

     Supreme Court justices often emphasize that the court’s role is not simply to decide cases and correct errors in lower courts, but to rule on knotty legal issues and lay down rules that get the law right for future cases. But in two closely argued free-speech cases during the past term the court seems to some observers to have gotten the law quite wrong even while reaching what may well be the right results in both.

      In the first of the cases, Walker v. Sons of Confederate Veterans, the court decided that Texas’s Department of Motor Vehicles could refuse to allow the Sons of the Confederate Veterans from displaying the Confederate battle flag on customized license plates. The Fifth U.S. Circuit Court of Appeals had ruled the agency’s action a free-speech violation.

      In the second case, Reed v. Town of Gilbert, the court struck down an ordinance adopted by a Phoenix suburb that allowed ideological and political signs to be larger and to stay up longer than other kinds of signs. The Ninth U.S. Circuit Court of Appeals found no First Amendment violation.

      The justices divided 5-4 in the Confederate battle flag case, with Justice Stephen G. Breyer writing for a majority that included the three other liberals and, somewhat surprisingly, the conservative Justice Clarence Thomas. The vote to strike down the Gilbert sign ordinance was unanimous, but three liberal justices declined to join Thomas’s opinion for the court.

      By my lights, the court would get good grades in both cases if its only job were to correct errors from lower courts. The Fifth Circuit gave too little regard to Texas’s interest in preventing the use of government-issued license plates to display a symbol regarded by many in the state as racially offensive. On the other hand, the Ninth Circuit was too deferential toward Gilbert’s interest in limiting visual clutter on its roadways.

      In both cases, however, the court laid down inflexible rules that may come back to haunt in future free-speech disputes. In Walker, Breyer reasoned that automobile license plates are in essence government speech free of any First Amendment controls. By contrast, Thomas’s opinion in Reed imposes the highest constitutional test, “strict scrutiny,” on any law regulating speech based on its content.

      In separate opinions, justices in the minority sounded alarms. In the license plate case, Justice Samuel A. Alito Jr. wrote on behalf of the four conservative dissenters that the decision “establishes a precedent that threatens private speech that government finds displeasing.” In the sign case, Justice Elena Kagan warned on behalf of three justices concurring in the judgment that the decision could result in invalidating “thousands” of “reasonable ordinances.”

      In fact, Reed has already spread beyond the specific context of sign ordinances, as the New York Times’s Supreme Court correspondent Adam Liptak noted in an article last month [Aug. 18]. The Seventh U.S. Circuit Court of Appeals cited the newly established strict scrutinystandard for any content-based regulation in striking down a local ordinance against panhandling (Norton v. City of Springfield, Aug. 7).

      Before Reed, the court had upheld the ordinance because it  regulated speech based on the subject matter, not the content or viewpoint. But ruling on a petition for rehearing, Judge Frank Easterbrook Jr. said the Supreme Court’s broader definition of “content-based” required a different result. “Any law distinguishing one kind of speech from another by reference to its meaning now requires a compelling justification,” Easterbrook wrote.

      In another post-Reed decision, the Fourth U.S. Circuit Court of Appeals struck down a South Carolina law that barred robocalls on political but not on other topics. And a federal district court judge cited Reed in striking down a New Hampshie law that sought to protect ballot secrecy by banning election selfies.

      As Liptak noted, Reed could conceivably be extended to such content-based laws as drug labeling, securities regulation, and consumer protection. Liptak quoted Robert Post, a First Amendment expert and dean of Yale Law School, as warning that the decision “would roll consumer protection back to the 19th century.”

      A federal court in Virginia cited Walker in a ruling in late July to allow the state to recall specialty license plates carrying the Confederate battle flag. But the decision had spread to a somewhat different context even earlier. In an action at the end of the term in late June, the justices told the Fourth Circuit to reconsider a decision that North Carolina was violating the First Amendment by allowing specialty license plates for anti-abortion organizations but not pro-choice groups.

      In his story reporting the action, Slate’s Mark Joseph Stern recalled his earlier warning that Walker “was not a victory for civility or tolerance” but “an invitation for the suppression of expression.”

      Ironically, Breyer’s opinion establishing a bright-line test for license plates or other government speech is at odds with the distaste he voiced for categorical definitions in his separate opinion in the sign ordinance case. Breyer has been a flexible First Amendment pragmatist throughout his tenure. And, in his forthcoming book The Court and the World, Breyer writes favorably of European court rulings that apply a “proportionality” test in evaluating free-speech challenges.

      Bright-line tests have their place, but the court’s decisions in these cases give courts too much power to strike down valid speech regulations and give politically motivated governments too much power to censor pure speech. First Amendment law took a hit in both.