Sunday, February 18, 2018

Kennedy "Most Consequential" Justice of Era

      Anthony Kennedy marks the end of his thirtieth year as a Supreme Court justice on Sunday [Feb. 18], currently the fifteenth longest tenure of the Court's 112 members in its 230-year history. Kennedy's precedent-setting or -breaking opinions on issues ranging from abortion, affirmative action, capital punishment, and gay rights to campaign finance and religious liberty represent a monumental legacy that marks him as the most consequential justice of his time on the Court.
      Kennedy may also be remembered as the last Supreme Court justice ever to be confirmed by a unanimous Senate floor vote. Kennedy was confirmed on a 97-0 vote by the same Democratic-majority Senate that sixteen weeks earlier had soundly rejected President Ronald Reagan's first choice for the vacancy, the archconservative federal appeals court judge Robert Bork. The bipartisan acclaim for Kennedy now appears as a long-gone relic of a different era of Supreme Court politics.
      Three decades after Kennedy's confirmation, his approval rating —  if justices were polled just like presidents —  surely would be significantly lower. Many conservatives would vote thumbs down because of his role in preserving the Roe v. Wade abortion rights ruling and in extending constitutional rights to gay men and lesbians. Some liberals might also turn thumbs down by citing Kennedy's pivotal votes in 5-4 decisions to gut campaign finance laws and jeopardize gun safety laws in the name of the Second Amendment.
      The shorthand description of the various justices as liberal or conservative routinely used by Court watchers may amount to an oversimplification, but Kennedy's opinions and votes defy a one-word label. One veteran Kennedy watcher, however, sums him up as a "modest libertarian." Helen Knowles, an associate professor of political science at State University of New York in Oswego and author of the appreciative volume The Tie Goes to Freedom, sees three pillars in Kennedy's judicial philosophy: tolerance of diverse views, treating every individual with dignity, and respecting liberty but insisting liberty be used responsibly.
      Knowles joins this writer in doubting the rampant speculation about Kennedy's possible retirement. "I don't think he's going anywhere soon," says Knowles. As he approaches age 82 in July, his health appears to be good. Thus, his legacy remains a work in progress that Knowles notes will be shaped in part by Kennedy's eventual vote in the gay wedding cake case argued in December. "The case involves two very central parts of his jurisprudence: both gay rights and free speech," she notes.
      Kennedy has not tried to set out an overarching judicial philosophy as two of his longtime colleagues have done: the late justice Antonin Scalia, in his books extolling originalism and textualism, and Stephen Breyer, in his book elaborating on "active liberty" as a lodestar of judicial decision-making. Kennedy is instead as modest as Knowles describes and, unlike Scalia, has never to my knowledge mocked or derided justices or others for disagreeing with his views or opinions.
      As successor to Justice Lewis F. Powell Jr., Kennedy moved into a "swing-vote" position on the Court that he shared with Justice Sandra Day O'Connor for the next 18 years. Kennedy played his pivotal role differently from O'Connor. As a former Arizona legislator, O'Connor was to some extent a finger-in-the-wind justice who seemed to look for politically acceptable compromises on hard issues, such as abortion. Kennedy is made of sterner stuff.
      In general, Kennedy holds his views firmly, with no corner-cutting compromises, but he can also hesitate Hamlet-like with hard decisions. By happenstance, he was with a reporter on the day he joined O'Connor and David H. Souter in the 1992 decision that largely reaffirmed Roe v. Wade. Before taking the bench, he mused out loud about "crossing the Rubicon." 
      As Knowles and others have pointed out, Kennedy is the strongest and most consistent free-speech advocate on the current Court. Thus, according to the leaked accounts, it was Kennedy who pushed for the broad, precedent-overruling decision in Citizens United v. Federal Election Commission (2010)  to free corporate spending in political campaigns instead of the narrower ruling that could have resolved the instant case.
      Kennedy may know his own mind well, but he shows that he can hold seemingly contradictory positions in his mind from case to case. He has voted repeatedly to uphold capital punishment, but he also joined or wrote decisions to bar the death penalty for the intellectually disabled, for juvenile offenders, and in rape cases. He has been a strong vote in recent religious liberty decisions, but he also wrote the 1992 decision that barred school-sponsored prayer at graduation ceremonies.
      Time after time, Kennedy has either written or joined 5-4 decisions, attesting to his pivotal role on an ideologically divided Court. Through 29 terms so far, Kennedy has registered the lowest number of dissenting votes in all but a few. Consciously or not, Kennedy appears to have responded to the recent effort by legal conservatives to push or pull the Court to the right by, if anything, moving somewhat to the left.
      Thus, Kennedy cast pivotal votes in two critically important cases in 2016: his first ever vote to uphold use of race in university admissions in his decision in Fisher v. University of Texas and one of his rare votes to strike down state restrictions on abortion procedures in a decision he assigned to Breyer, Whole Woman's Health v. Hellerstedt. Those decisions underscore that Kennedy decides cases, judge-like, one case at a time, and that he remains the one justice never to be taken for granted.
 

Sunday, February 11, 2018

Trump's Judges Pose Danger to LGBT Rights

      The Supreme Court's decision recognizing marriage rights for same-sex couples holds out the promise of legal and social equality for gay and lesbian Americans, but only the promise: not yet the reality. Already, next-generation issues are pending at the high court, in lower federal and state courts, and in federal and state agencies, with same-sex couples still experiencing outright hostility or bureaucratic indifference when claiming rights enjoyed by opposite-sex couples.
      The Supreme Court similarly held out the promise of racial equality in 1954 with its landmark school desegregation decision in Brown v. Board of Education. Six decades later, however, the promise of that decision has yet to be realized, with the Supreme Court now in retreat on the need to diversify racially isolated schools.
      The practicalities of judicial administration required the Warren Court to leave the implementation of the school desegregation decision to lower federal court judges. President Dwight Eisenhower was ambivalent at best about Brown, but fortunately for history's sake he appointed to the federal bench in southern states judges who took their responsibilities seriously to follow the law laid down by the Supreme Court.
      Fast forward to today. With the future of LGBT rights still quite uncertain, President Trump has turned to a number of unreconciled opponents of LGBT rights to fill federal court seats. The justice he appointed to the Supreme Court may harbor no ill will toward LGBT individuals, but Neil Gorsuch has already voted in one significant case against granting the same rights to same-sex couples as enjoyed by opposite-sex couples.
      Gorsuch dissented from the Court's decision in June in Pavan v. Smith to require an Arkansas state agency to list both a biological mother and her wife as parents on their child's birth certificate just as the state would do for the husband in an opposite-sex couple who gave birth through assisted reproduction. The same issue of common-law parentage is now pending in federal court suits filed by gay couples challenging the State Department's refusal to allow a non-biologically related father to transfer his citizenship to a child born abroad.
      Other pending issues are more straightforward. The Supreme Court heard arguments in December to decide whether commercial businesses can refuse to serve LGBT individuals based on moral or religious objections — for example, to same-sex weddings. The justices are also being asked to determine whether the federal civil rights law that prohibits sex discrimination also applies to discrimination on the basis of sexual orientation or gender identity.
      Judges on lower federal courts will play a role in determining some of the future issues and implementing eventual Supreme Court decisions. LGBT advocacy groups warn that many of Trump's judicial nominees have records of outright opposition or indifference to LGBT rights.
      Lambda Legal identified Gorsuch and 15 other Trump nominees as having anti-LGBT records in a detailed analysis last fall. The report noted, for example, that Gorsuch joined an opinion while on the Tenth Circuit to allow the state of Oklahoma to deny hormone treatments to a transgender female inmate.
      Other Trump nominees evinced similar indifference to LGBT rights on the bench. While on the Texas Supreme Court, Don Willett joined an opinion denying benefits to the spouses of gay or lesbian public employees. On the Michigan Supreme Court, Joan Larsen refused to recognize parental rights for a lesbian parent after a marital breakup. Both Willett and Larsen withstood opposition from LGBT and other civil rights groups to win confirmation on mostly party-line votes to federal appeals courts in their circuits.[
      Willett and Larsen are among many Trump nominees with judicial views generally hostile to the courts' role in extending or protecting individual rights. Larsen, for example, criticized the Supreme Court's decision in Lawrence v. Texas to strike down state laws banning gay sex as "revolutionary" because it cited foreign law.
      Some other nominees have been more explicit in opposing LGBT rights. As a board director of the Nebraska Family Alliance, Steven Grasz opposed recognition of same-sex marriages and supported the use of gay conversion therapy. He was confirmed to the federal appeals court for the Eighth Circuit.
      As a member of the Tennessee legislature, Mark Norris sponsored or supported a variety of anti-LGBT bills, including a "don't say gay" bill to prohibit teachers from discussing homosexuality in schools. Norris is awaiting a Senate floor vote on his nomination to the U.S. District Court in Memphis after the Judiciary Committee recommended confirmation on an 11-10 party-line vote.
      One of Trump's anti-LGBT nominees, however, proved too much for the committee to swallow. Jeff Mateer, an assistant in the Texas attorney general's office nominated for a federal district court, withdrew after news coverage of remarks he made while with a religious liberty group describing transgender individuals as "part of Satan's plan."
      As a candidate, Trump sometimes professed support for LGBT rights, but he also sought and relied on support from evangelicals and other social conservatives. As president, Trump has pleased his political base by opposing transgender rights in public schools and supporting anti-LGBT discrimination at the Supreme Court. But long after Trump is gone, the judges he is naming to the federal bench will still be there, slowing if not reversing the movement toward equal rights for LGBT Americans.

Sunday, February 4, 2018

On Immigration, Trump Lies, Panders to Base

      President Trump has shown himself in his campaign and in office to be reflexively averse to dealing with the details of policy or legislation, but he appears to have a good grasp of what he wants to do on immigration. Sadly, the president's plans for what he calls immigration reform are based on outright falsehoods about current policy and on menacing appeals to the worst elements of his political base.
      Trump made a pretense of offering a bipartisan compromise to pro-immigration Democrats as part of his State of the Union address [Jan. 29]. He is proposing a path to citizenship not only for the estimated 800,000 "Dreamers" brought to the United States as minors but also for their families: an estimated 1.8 million non-status immigrants in all. Trump combined that carrot, however, with a package of sticks rightly rejected by the other side: sharp cuts in legal immigration and a reckless increase in border enforcement staffing.
      Begin with Trump's two overarching falsehoods on current immigration policy. Trump and his supporters are simply wrong in his attack on so-called "chain migration" to depict current family unification policies as allowing immigrants to sponsor an unlimited number of family members. The proposed remedy is heartless to the max. The White House "framework" on immigration proposes to "promote nuclear family migration" by limiting sponsorships to spouses and minor children: siblings and parents need not apply.
      Trump is also wrong in saying that the current diversity visa lottery system "selects individuals at random to come into the United States without consideration of skills, merit or public safety" (emphasis added). In fact, eligibility for the lottery — with merely 50,000 slots per year —  requires proof of education and employment and a security background check.
      Unsurprisingly, black and Hispanic immigrants would be roughly twice as likely to be affected by the administration's proposals than white immigrants, according to an analysis by economist Michael Clemens,a fellow with the Center for Global Development, Clemens, who is affiliated with the avowedly conservative Hoover Institution, used 2016 figures for immigrants admitted through the lottery to estimate that the changes would reduce the number of black immigrants by 64 percent and the number of Hispanics by 58 percent while the number of white immigrants would be cut by roughly one-third.
      Were there any doubt, the analysis underscores the inherent racism in Trump's proposals. Yet pro-immigration advocates emphasize that seeking to curtail legal immigration is the very opposite of making America "great" again. The foreign-born living in the United States have risen over the past 25 years to reach 13.7 percent in 2015, according to the U.S. Census Bureau, but that percentage is below the historic high in this "nation of immigrants" of 14.8 percent in the 1890s.
      Trump openly appealed in his campaign to the nativist element in the U.S. population with his anti-immigrant rhetoric. With his rhetoric now embodied in legislative proposals, Trump is drawing opposition not only from liberal pro-immigration groups but also from the U.S. Chamber of Commerce and such mainstream conservatives as columnists David Brooks and Michael Gerson.
      Writing on the business lobby's blog in advance of Trump's State of the Union address, Chamber president Tom Donohue called for legalizing the status of the 1 million immigrants already in the country and also for continuing to welcome legal immigration for the economy's sake. "Without qualified workers," Donohue wrote, "American businesses and the U.S. economy can’t grow."
      David Brooks added his voice to the pro-immigration argument the same day in his scheduled column in The New York Times. "[T]he evidence for restricting immigration . . . is pathetically weak," Brooks said. Far from hurting the country, immigrants are providing the "antidote" to an overall loss of "dynamism," socially and economically.
      Gerson, a speechwriter alumnus of the compassionate conservatism of the George W. Bush White House, similarly discounted the factual evidence for Trump's arguments "as uniformly exaggerated or wrong" in a critique of the State of the Union published in The Washington Post on Friday [Feb. 2]. "There is little evidence that migrants take jobs from middle-class Americans," Gerson wrote. He debunks the fear of immigrant crime as well. "There is no evidence that immigrants have higher rates of crime," he writes. "The opposite is true."
      Trump is once again factually wrong to claim an increase in illegal border crossings when the numbers appear to be falling. Yet to combat the non-existent menace, Trump wants a $25 billion trust fund for his "beautiful" wall and a 50 percent increase in border enforcement resources for Immigration and Customs Enforcement (ICE). Environmental experts view the supposed wall as a threat to wildlife and endangered species. Immigration advocates warn of the risks of adding so many ICE agents without effective safeguards against corruption and abuse.
      Anti-immigrant hysteria has been part of American history time and time again through the years, but never before has a U.S. president made it such a central part of his campaign or his presidency. As with some of his other policies, the only way for Trump to make America great is to change his policies and his rhetoric. As president, he should be trying to bring Americans together instead of continuing to divide the country by race, ethnicity, and national origin.

Sunday, January 28, 2018

Ginsburg, Gorsuch Don't Play Well Together

      Justice Ruth Bader Ginsburg had her doubts about Neil Gorsuch long before President Trump chose him to join Ginsburg on the Supreme Court as successor to Ginsburg's longtime pal, Antonin Scalia. Now that she and Gorsuch are colleagues, the early report cards show that the two justices do not play well together.
      Gorsuch went up against Ginsburg for the second time in his short tenure by leading four dissenters last week in a long riposte to Ginsburg's opinion for a five-justice majority in the kind of complex procedural case that is Ginsburg's forte. The two justices — Ginsburg, the oldest, and Gorsuch, the youngest — had a similar face-off in a decision at the end of the previous term in a case that, like this week's, played to Ginsburg's strength and to Gorsuch's swaggering self-confidence.
      Rewind the tape to recall Ginsburg's ill-advised comments last summer about the worrying prospects of a Trump presidency for the country and for the Court itself. "For the country, it could be four years," Ginsburg opined in an interview with The New York Times' Adam Liptak in mid-July as Trump was emerging as the presumptive Republican nominee. "For the Court, it could be —  I don't even want to contemplate that," Ginsburg went on.
      Ginsburg eventually apologized for her remarks and promised to be "more circumspect" in the future. While Ginsburg fretted about a Trump presidency, she probably expected that President Obama's choice for Scalia's seat, Judge Merrick Garland, would eventually join her on the Court. Trump's election paved the way instead for Gorsuch's nomination and eventual confirmation on a historically narrow, mostly party-line Senate vote.
      Ginsburg joined the other justices for Gorsuch's oath-taking in a White House rose garden ceremony on April 10. The Washington Post published a picture of the justices at the ceremony, with a caption that noted the justices' applauding after the swearing-in. A keen-eyed reader noted on Twitter, however, that Ginsburg was in fact not applauding.
      With Gorsuch barely in his third month on the Court, he took on Ginsburg in dissent in a complex case on the appellate route for a discharged federal employee to challenge an unfavorable ruling in a so-called "mixed motive" claim. Writing for a seven-justice majority in Perry v. Merit System Protection Board, Ginsburg construed the applicable statute to direct the employee's appeal — with its mix of civil service and other illegal discrimination claims — to a federal district court instead of a federal court of appeals with more deferential review.
      Gorsuch apparently forgot that Ginsburg was studying Swedish civil procedure before he was even born. Undeterred, he accused Ginsburg of rewriting the statute instead of faithfully construing its convoluted text. "If a statute needs repair," Gorsuch wrote in a snarky dissent joined by Justice Clarence Thomas, "there’s a constitutionally prescribed way to do it. It’s called legislation."
      When the new term opened, Gorsuch and Ginsburg were at it again. Gorsuch skeptically asked during the Oct. 3 arguments in the Wisconsin gerrymandering case, Gill v. Whitford, about the source of the Court's authority to review state legislative district maps. As Jeffrey Toobin noted in The New Yorker, Ginsburg answered with a none-too-subtle bench slap. “Where did ‘one person, one vote’ come from?” Ginsburg asked, in an unmistakable reference to the Court's early decisions from the 1960s allowing federal court challenges to malapportioned state legislatures.
      Fast forward to last week's decision in Artis v. District of Columbia [Jan. 21]. The issue was how to interpret another complex federal statute: one that "tolled" the statute of limitations on a plaintiff's state law claim while the claim was pending in a federal court as related to a distinct federal law claim. The law, 28 U.S.C. §1367(d), gave a plaintiff 30 additional days to file in state court after a federal court dismissal of the federal claim.
      Stephanie Artis, the discharged D.C. health inspector, lost her federal court case and then refiled her claims under D.C. law in D.C. Superior Court, 59 days after the dismissal of her federal court case. The District argued and the D.C. courts agreed that Artis had filed too late, but Ginsburg wrote for a 5-4 majority in holding that the District's three-year statute of limitations had been "held in abeyance" — that is, "tolled" — while her case was in federal court.
      Ginsburg said she was following the "dictionary definition" of "tolled," but the committed textualist Gorsuch instead read the federal law to provide a 30-day grace period instead of stopping the clock on the District's three-year statute of limitations. The case, he said, represented a constitutionally dubious "intrusion" on "traditional state functions." Ginsburg countered by accusing Gorsuch of "unsettling" the definition of "tolled" in his interpretation of the act and by citing an earlier precedent that described the federal provision as "conducive to the due administration of justice in federal court."
      Gorsuch's opponents made much during the confirmation fight of Gorsuch's dissenting opinion in what came to be called the "Frozen Trucker Case." In that case, he would have narrowly interpreted a federal truck safety law so as to leave a stranded trucker with no legal alternative to risking freezing to death while waiting for his company to send a rescue.
      Tellingly, Gorsuch's two dissents so far in argued cases —  in Perry and now in Artis — have both sought to impose his narrow construction of federal statutes in a way to disadvantage workers challenging adverse personnel actions. Gorsuch answered his critics at the Senate confirmation hearings by insisting that there were "plenty of" cases where he had ruled in favor of the proverbial "little guy." At the Supreme Court, however, so far: not so much.

Saturday, January 20, 2018

To Make America Great, Trump Has to Go

      One year into the Trump presidency, America is not "great again," but divided at home and diminished abroad. The president's actions and statements have reduced the United States' global leadership, eroded democracy at home, weakened the country's commitment to economic and social justice, encouraged racial and religious bigotry, and deepened the ethical swamp that he promised to drain.
      These conclusions emerge in year-one assessments from, among other organizations, the respected nonpartisan human rights group Freedom House. The group's annual report, released this week [Jan. 16], paints a picture of democracy in serious crisis worldwide and endangered in the United States accompanied by a blistering critique of President Trump's policies.
      With democracy already in retreat, Freedom House blamed Trump for "the accelerating withdrawal of the United States from its historical commitment to promoting and supporting democracy." Far from promoting democracy, Trump has "expressed feelings of admiration and even personal friendship for some of the world's most loathsome strongmen and dictators" — Russia's Vladimir Putin and Filipino president Rodrigo Duterte by name.
      In the United States itself, Freedom House also found an accelerating decline in political rights and civil liberties based on a rare three-point drop from 89 to 86 in its scoring system within a single year. Trump was accused of using attacks on the media and the judiciary to threaten their legitimacy. The report cited the "pressure" on those institutions in listing the United States among 10 countries that face "turning points in their democratic trajectory" during the coming year.
      Domestic civil rights and civil liberties groups were even more dispirited in their one-year assessments. Sherilynn Ifill, president of the NAACP Legal Defense and Educational Fund, described Trump's first year as "an affront to civil rights." Ifill's article cited, among other policies, the Justice Department's reversals in key voting rights cases, including federal court challenges to Texas's voter ID law and Ohio's aggressive deregistration of inactive voters. With police and minority community relations tense in many cities, Ifill also noted Attorney General Jeff Sessions's decision to stop monitoring local police departments for violations of constitutional or civil rights.
      Trump's men at Justice, Sessions and Solicitor General Noel Francisco, also worked to diminish or challenge LGBT rights through the year, as detailed in a downcast report by the Boston-based Fenway Institute. The solicitor general's office argued in a critical Supreme Court case for giving some commercial businesses the right to discriminate against LGBT individuals based on religious or moral objections — for example, to same-sex weddings. The report also noted the administration's rescission of the Education Department policy that public schools allow transgender pupils to use bathrooms or locker room facilities based on their gender identity.
      Beyond these policy retreats, the administration has also contributed to increased religious, racial, and ethnic intolerance — most notably, in the federal court-blocked ban on travel to the United States by people from half a dozen predominantly Muslim countries. Trump has demonizied and denigrated immigrants from Mexico, Central America, and other "shithole countries." Worse, he has given aid and comfort to white supremacists by saying, after the violent confrontation with civil rights forces in Charlottesville, Va., that there were "good people on both sides."
      Trump's supporters and apologists answer this critique by pointing to his appointment of federal judges, including Supreme Court Justice Neil Gorsuch. But Gorsuch and the record first-year pace of judicial appointments bode ill for equal justice in the long term. None of the Trump judges shows much sympathy for the courts' role in protecting civil rights, and several have records of overt hostility to LGBT rights. At the Supreme Court, Gorsuch dissented from a decision to protect married lesbian couples' ability to list both women as parents on a child's birth certificate.
      Trump's defenders also cite the relatively good economic times as evidence of his success in office. But the job growth that Trump touts is actually the slowest since 2010 and wage growth has likewise been slow. In a setback for economic justice, the trillion-dollar tax cut that Trump pushed through the Republican-controlled Congress bestows most of its benefits on well-to-do taxpayers at the expense of future generations. The year-long fight over Obamacare may end with millions thrown off health insurance. Other deregulatory initiatives have reduced protections for workers, consumers, investors, and the environment.
      Meanwhile, the watchdog group Citizens for Ethics and Responsibility in Washington (CREW) labeled Trump's first year "the most unethical presidency" in U.S. history. Trump's very presence in the White House, with business interests undisclosed and undivested, amounts to an ongoing violation of the Constitution's Foreign and Domestic Emoluments Clauses, an issue that CREW is litigating in court. CREW's report notes the conflict of interest in Trump's 100-plus visits to Trump properties and the even more unsavory conflicts in the appointment of industry insiders to executive branch posts regulating their former industries.
      Trump has no interest in changing any of these policies, so the country will move again toward greatness only with a new president. Unfortunately, the two constitutional methods for removing him — the 25th Amendment or impeachment — lack political support even though most Americans disapprove of Trump's performance. A nation divided and diminished looks anxiously to the future with the very idea of America under severe stress as the Huckster in Chief makes empty promises to make America "great again." Fittingly, Trump's first year ends today [Jan. 20] with a partial government shutdown as the self-styled dealmaker balks at any bipartisan compromise to resolve the growing impasse between Republicans and Democrats on Capitol Hill.

Sunday, January 14, 2018

On Partisan Gerrymandering, Time's Up?

      Politicians have been making mischief out of legislative or congressional district maps for more than two centuries, ever since the early 19th century Massachusetts governor Elbridge Gerry unwittingly lent his name to the disreputable practice. But only now, two decades into the 21st century, has a federal court found, for the first time ever, an instance of partisan gerrymandering so blatantly political as to violate the Constitution, for that reason and no other.
      The Supreme Court first said that partisan gerrymandering might be unconstitutional as such in an inconclusive decision three decades ago, Davis v. Bandemere (1986). The justices and lower courts have struggled ever since with trying to find a manageable standard to define when political line drawing goes too far. The federal court that struck down North Carolina's congressional redistricting plan last week [Jan. 10] resolved that conundrum by boldly declaring it constitutionally unacceptable to draw lines to advantage one party or disadvantage another.
      The three-judge court's unanimous decision in Common Cause v. Rochco lifted the hopes of good-government groups that courts would finally a way to tame the beast of gerrymandering. Those hopes fell just one day later, however, with the decision by a fractured three-judge court in Agre v. Wolf [Jan. 11] to reject a similar challenge to congressional redistricting in Pennsylvania. The two cases have parallel facts: in both, Republican-controlled legislatures drew congressional districts with the undisguised intent — and the eventual effect — of imbalancing the states' congressional delegation in the GOP's favor.
      The dueling decisions underscore the Supreme Court's critical role, with two other cases already under review this term, in deciding whether courts can and should tell politicians that time's up for partisan gerrymandering. The two cases, Gill v. Whitford and Benisek v. Lamone, show that both major parties play the  game when they can. Wisconsin's Republican-controlled legislature drew legislative maps in 2011 to help the GOP win a lopsided majority in the state assembly, while Maryland's Democratic-majority legislature drew congressional district lines to leave Republicans with only one of the state's eight seats in the U.S. House.
      The legal challenge brought by the good-government groups Common Cause and League of Women Voters along with named North Carolina voters was aided by Republicans' candor in explaining their motivation in drawing new congressional district lines. Thomas Hofeller, the redistricting consultant hired by the North Carolina Republicans, candidly testified that he drew the lines "to minimize the number of districts in which Democrats would have an opportunity to elect a Democratic candidate.”
      Of the two decisions last week, Judge James Wynn's 191-page opinion in the North Carolina case is the more carefully reasoned and more carefully documented. North Carolina Republicans predictably denounced Wynn as an activist Democrat, but Wynn was appointed to his position on the Fourth U.S. Circuit Court of Appeals by President Obama with bipartisan support from the state's two senators, Democrat Kay Hagen and Republican Richard Burr. He had previously served 26 years as a Navy lawyer and 10 years on North Carolina appellate courts.
      Wynn deftly answered Justice Anthony M. Kennedy's pivotal opinion in an earlier decision, Vieth v. Jubelirer (2004), where four conservative justices voted to bar political gerrymandering challenges altogether. Kennedy joined in the 5-4 decision to reject the challenge to Pennsylvania's congressional redistricting, but left the door open to future cases while all but begging for "clear, manageable and politically neutral standards" to apply to partisan gerrymandering.
      In Wynn's analysis, no "constitutionally cognizable interest" is served by district lines that are drawn for partisan reasons and durably produce the intended partisan effect. On that basis, he concluded, "a judicially manageable framework for evaluating partisan gerrymandering claims need not distinguish an 'acceptable' level of partisan gerrymandering from 'excessive' partisan gerrymandering."
      Wynn's opinion was unanimous for the most part, joined by two district court judges from North Carolina: William Britt, appointed by President Jimmy Carter, and William Osteen, appointed by President George W. Bush. Wynn concluded that North Carolina's redistricting violated voters' equal protection rights and political rights under the First Amendment and also went beyond the state legislature's authority under the clause in the U.S. Constitution giving states authority to "regulate" congressional elections. In a partial dissent, Osteen disagreed only on the First Amendment claim, which he said would bar any consideration of political affiliation in redistricting.
      The ruling in the Pennsylvania case was written by Judge D. Brooks Smith, who was appointed to the federal district court in Pittsburgh by President Ronald Reagan and  elevated to the Third U.S. Circuit Court of Appeals by the second president Bush. In his 73-page opinion, Smith insisted on the need for the still absent manageable standard for judging gerrymandering cases and instead relegated any complaints about the practice to Congress or state legislatures.
      Smith's opinion might have held water 60 years ago, but not since the Supreme Court opened the door to reapportionment cases with its initial decision in Baker v. Carr (1962). The court came up with a manageable standard for those cases: "one person, one vote," with only minimal population variations between districts. In the same way, the Court over the past 25 years has settled on a less precise rule for use of race in drawing district lines: some but not too much.
      Neither of the other two judges joined Smith's opinion. Judge Patty Shwartz, an Obama appointee to the Third Circuit, concurred in rejecting the challenge only on the ground that the voters lacked standing to challenge the overall statewide map. Judge Michael Baylson, a Republican-appointed district court judge from Philadelphia, wrote a 148-page dissent that would have rejected the Pennsylvania map as an unconstitutional gerrymander based on evidence and legal grounds parallel to those given in Wynn's opinion in the North Carolina case.
      Baylson opened his dissent with a plaintive cry. Gerrymandering, he wrote, "is a wrong in search of a remedy." Political reform is not impossible: several states have moved toward independent commissions to draw legislative and congressional districts. But the United States inherited from the English common law the fundamental principle that for every wrong, there must be a remedy. The Supreme Court can provide a remedy and, because it can, it must. Gerrymandering: your time is up.

Sunday, January 7, 2018

Trump Plays Fast and Loose With 1st Amendment

      The staff assistant assigned to brief presidential candidate Donald Trump on the U.S. Constitution is reported to have gotten only as far as the Fourth Amendment before Trump's attention flagged, according to the account in the tell-all book Fire and Fury by journalist Michael Wolff. "I got as far as the Fourth Amendment," Sam Nunberg is quoted as saying, "before his finger is pulling down on his lip and his eyes are rolling back in his head."
      Apparently, Trump's attention was wandering even earlier. His actions as candidate and as president demonstrate that he lacks any understanding of the First Amendment —  at least, the prohibition against abridging the freedom of the press.
      The most recent evidence of Trump's ignorance of, or indifference toward, freedom of the press comes from his lawyer's letter [Jan. 3] threatening a lawsuit to try to ban Wollf's book. Charles Harder, the Beverly Hills lawyer in the lawsuit that put the gossip site Gawker out of business, warned the Henry Holt publishing house on Trump's behalf of a possible suit to prevent publication of the book because of allegedly libelous material about Trump.
      Harder had sent a similar cease-and-desist letter to ex-Trump aide Stephen Bannon the day before, threatening the fired White House adviser with legal action for allegedly violating a nondisclosure agreement signed before signing up with the Trump campaign. Bannon is quoted extensively in Wolff's book with sharp criticisms of the man he helped install in the Oval Office.
      Both letters, written presumably with Trump's knowledge and approval, play fast and loose with the First Amendment's protections for freedom of speech and freedom of the press. The enforceability of nondisclosure agreements is a recurrent and somewhat murky issue in employment and trade secret law. The judicial precedents against prior restraints, on the other hand, are well established and well known and leave no room for courts to ban a book or a newspaper story except in the most extraordinary circumstances.
      Legal journalist Colin Kalmbacher summarized the major decisions in commentary published on Dan Abrams' legal news site Law and Crime. Recapping from Media Law 101, Kalmbacher recalled that the Supreme Court first extended the First Amendment to state governments in a decision, Near v. Minnesota (1931), that struck down a local ordinance prohibiting the publication of a "malicious, scandalous, or defamatory newspaper."
      Trump's displeasure with Wolff's book parallels the history in Near. The case originated with an effort by Minneapolis officials in 1927 to invoke what was called the "Minnesota Gag Law" to shut down The Saturday Press, a muckraking rag published by the openly anti-Semitic J.M. Near. The local judge issued an order ordering the newspaper to suspend publication, an order that the Minnesota Supreme Court upheld.
      As a First Amendment hero, Near falls far short of the ideal, but the U.S. Supreme Court's decision in his favor is a landmark in First Amendment law and a shield for all who claim its protections against government censorship. Writing for the 5-4 majority, Chief Justice Charles Evans Hughes said that the First Amendment allows a court-imposed prior restraint only if the publication would reveal critical military information, amount to obscenity, or directly incite violence.
      Kalmbacher noted a second precedent: the 9-0 decision in Nebraska Press Ass'n v. Stuart (1976) that threw out a judge's order prohibiting coverage of a high-profile murder trial. Oddly, Kalmbacher skipped over the more applicable precedent five years earlier in the Pentagon Papers case. The 6-3 decision in New York Times v. United States (1971) rejected the Nixon administration's effort to prevent the Times and the Washington Post from publishing excerpts of the classified study of Vietnam War policymaking.
      Those precedents leave no room whatsoever for Trump or his lawyer to block publication of Wolff's book even if the still unspecified defamatory statements meet the stringent "actual malice" standard of the earlier precedent, New York Times v. Sullivan (1964). In any event, the publishing house responded not by cowering in fear, but by moving the book's publication date up to Friday [Jan. 5].
      Charles Tobin, a Washington, D.C., lawyer who represents media interests, similarly doubted Trump's ability to silence Bannon under the supposed nondisclosure agreement. The case law establishes that a prior restraint is allowed only if "a government interest of the highest order" is at stake, Tobin explained. "The interest of a thin-skinned president" would not meet that standard, he reasoned.
      The legal basis for Harder's letters was so weak as to raise questions why he wrote them at all. The letters, Tobin suggested, "were more about public image and political grandstanding than legal merit." By week's end, Trump had sued neither Bannon nor Henry Holt. Several news stories noted Trump's penchant for threatening to file legal actions without ever actually filing them.
      Legal bluster may be part of the game for real estate developers or TV celebrities, but Trump is no longer private citizen. As president of the United States, he took an oath to "preserve, protect, and defend" the Constitution of the United States, including the First Amendment. Wolff's book summed up the views of many in Trump's circle that he was and remains unfit for the office. Day by day, tweet by tweet, Trump proves his critics to be right, whether they are inside or outside the White House.