Sunday, August 12, 2018

Time for State Courts to Lead on Rights?

      With the Supreme Court on the verge of a solid conservative majority,  the time is ripe to reconsider the role of state courts in recognizing and protecting individual rights. Now comes an unlikely messenger: Jeffrey Sutton, a federal appeals court judge and a regular featured speaker for the conservative Federalist Society.
      In his new book 51 Imperfect Solutions: States and the Making of American Constitutional Law (Oxford University Press), Sutton tells the untold story of the role that state courts and state constitutions have played through the years. He begins by noting that for the public and the legal community alike, all discussions of constitutional law typically begin and end with the Supreme Court of the United States. So too for litigators, he says: groups pressing new claims for constitutional rights file suits in federal courts, hardly ever in state courts.
      Sutton acknowledges that state courts have a generally deserved reputation for "relative underprotection of individual rights." But he notes that the rights now enshrined in the Bill of Rights originated in the state constitutions written between independence in 1776 and the ratification of the national Constitution in 1789. In addition, Sutton notes that at least seven state courts had assumed that power before the Framers met in Philadelphia in 1787.
      The modern history of constitutional law begins with the Warren Court's revolution in criminal procedure. The Court's series of decisions in the 1960s, such as Mapp, Gideon, and Miranda, required state criminal justice systems and courts to respect rather than ignore the rights specified in the Fourth, Fifth, and Sixth Amendments of the Bill of Rights.
      Sutton tells different stories from different periods in U.S. history. The National Court — his term for the one in Washington — has not always been a vanguard for individual rights. To the contrary, the Supreme Court at times has been either blind or slow in protecting individual rights or promoting equal justice. State courts have sometimes been better, sometimes not, but Sutton recites the twentieth century history of four legal issues where state courts helped provide a measure of justice after the Supreme Court's misdirection or default.
      In two of these stories, states got the issue right after the Supreme Court got it egregiously wrong. The first begins with the eugenics movement, the pseudoscientific theory for genetic superiority advanced by such progressives as Theodore Roosevelt and Woodrow Wilson early in the twentieth century. To his everlasting embarrassment, the great Supreme Court justice Oliver Wendell Holmes Jr. put his stamp of approval on the movement in the infamous decision, Buck v. Bell (1927), that upheld a Virginia law for involuntary sterilization of "feeble-minded" individuals.
      State legislatures more than state courts get credit for ending involuntary sterilizations by the 1980s, after more than 60,000 such procedures nationwide, according to Sutton's account. State legislatures repealed the sterilization laws and for good measure began writing the precursors of the federal law prohibiting discrimination against the disabled.
      The Supreme Court was again egregiously wrong in 1940 when it upheld a West Virginia law requiring public school students to salute the American flag while reciting the Pledge of Allegiance. The Court's decision in Minersville School District v. Gobitis (1940) is a black mark on the reputation of the great Supreme Court justice Felix Frankfurter, who flaunted his patriotism in rejecting the religious freedom plea by the Gobitas family, devout believers as Jehovah's Witnesses.
      The Court corrected itself  in the second of the Flag Salute Cases only three years later by upholding a similar religious freedom claim by Jehovah's Witnesses in West Virginia State Board of Education v. Barnette (1943). That story is told in constitutional law classes in law schools, but Sutton adds to the familiar account by noting that state courts had started to rule for Jehovah's Witnesses in such cases in the three-year interim.
      In the third of Sutton's stories, the Supreme Court blinked when urged in Wolf v. Colorado (1949) to enforce the Fourth Amendment by requiring states to exclude illegally obtained evidence. At the time, 16 states had their own exclusionary rules. The Court reversed itself in Mapp v. Ohio (1961); by then, nearly half the states had exclusionary rules.
      In the last of the stories, Sutton notes the Court's decision in San Antonio Independent School District v. Rodriguez (1973) that found no Equal Protection Clause requirement for equal school funding. In the decades since, state courts have moved in: ordering or catalyzing significant reforms to narrow funding disparities between rich school districts and the others.
      With his title, Sutton confounds the purpose listed in the Preamble to the Constitution: "to form a more perfect union." Better, he says, to have 51 imperfect solutions from state courts than one imperfect solution for the whole country from the National Court. The Supreme Court, he suggests, should stay its hand unless constitutional text and history are clear. State courts, he says, should be free to adapt individual rights to each state's particular history, culture, and geography.
      Sutton refuses to take sides on specific issues. So he does not offer to give up the Heller decision on the Second Amendment and leave gun rights up to individual states. On same-sex marriage, however, he views the interplay between state and federal courts as pointing, perhaps, to the right answer — despite his contrary position in the cases that actually reached the Supreme Court under the title Obergefell v. Hodges.
      Sutton emphasizes the role that Massachusetts' highest court played with its decision in Goodridge v. Dep't of Public Health (2003) to recognize marriage equality for same-sex couples under the Bay State's constitution. Without Goodridge, he says, there would have been no Obergefell. For rights advocates, Sutton suggests, look to the states: sage advice surely for those on the political and legal left as the Court prepares, it seems, to take a sharp turn to the right.

Sunday, August 5, 2018

On Kavanaugh, Republicans Neck-Deep in Hypocrisy

    Senate Republicans are neck-deep in political hypocrisy as they move toward confirmation hearings for Supreme Court nominee Brett Kavanaugh without a shred of bipartisanship or principle. With Republicans having lost any capacity for shame, the Republicans' prime movers on judicial confirmations — Majority Leader Mitch McConnell and Judiciary Committee Chairman Charles Grassley — are adopting tactics that flatly contradict their stances on President Obama's last two Supreme Court nominations.
    Starting with Grassley, the Judiciary Committee chairman is pressing for Kavanaugh's confirmation hearing to be held in September well before the George W. Bush Presidential Library can provide even incomplete records of Kavanaugh's five years in the Bush White House. Now consider what Grassley had to say in regard to Elena Kagan's nomination to the Supreme Court on the Senate floor on June 15, 2010, as the committee was waiting for the Clinton Library to provide records about her years as a White House aide.
    Grassley, then in his thirtieth year as U.S. senator from Iowa, began his remarks by telling his colleagues that he had "always been of the opinion that the Senate needs to conduct a comprehensive and careful review of Supreme Court nominees [emphasis added]." For the Senate to fulfill its constitutional responsibility, Grassley elaborated, "we must get all of her documents from the Clinton Library and have enough time to analyze them so we can determine whether she should be a Justice."
    Republicans, then in a 59-41 minority in the Senate, fully explored the complete records on Kagan's work in the White House as domestic policy adviser, focusing on such issues as welfare reform, gun rights, and abortion. Grassley was one of 36 Republicans, along with the then-minority leader McConnell, who sized up Kagan based on that record as too liberal and voted against her confirmation, along with one Democrat.
    Democrats today want to examine all of Kavanaugh's work in the White House, including his three years as Bush's staff secretary that he himself describes as his "most formative" pre-judicial experience. They want to see the records to question Kavanaugh on the witness stand and then to use that evidence to try to substantiate, for any of the 51 Republicans willing to listen, their belief that Kavanaugh is too conservative and too partisan for a lifetime seat on the Supreme Court.
    Grassley started this contretemps by leaving Democrats behind as he asked the Bush library only for documents from Kavanaugh's two years in the White House counsel's office. All 10 Judiciary Committee Democrats submitted a separate letter last week asking for all of Kavanaugh's records, but Grassley dug in his heels. With the first batch of documents received from the National Archives, the Democratic leader Chuck Schumer of New York complained about the lack of transparency. "We don't know what they've held back and why," Schumer remarked.
    Grassley's full-speed-ahead approach is tied to the insistence by McConnell and other Republicans that Kavanaugh's confirmation needs to be completed in time for him to take the bench when the Supreme Court opens its 2018 term on Oct. 1, the traditional first Monday in October. The Republicans' concern about the need for a full nine-justice Court is laughably disingenuous after McConnell left the Court with a fourteen-month vacancy by refusing to consider Obama's nomination of federal appeals court judge Merrick Garland in 2016.
    McConnell now says he is willing to work on Kavanaugh's confirmation with Democrats on a bipartisan basis. The Senate's longest-serving Republican, Utah's Orrin Hatch, added to the comic relief last week by denouncing what he called Democrats' "dumbass" partisanship on Kavanaugh's nomination. "I'm tired of partisanship and frankly we didn't treat their candidates for these positions the way they're treating ours," Hatch said in a stakeout by reporters. The record, of course, is to the contrary: Republicans all but shut down any consideration of Obama's nominees for the federal bench in his final year in office.
    The liberal advocacy group People for the American Way aptly sized up the GOP's strategy in a statement by executive vice president Marge Baker. Republicans "are far more interested in rubber-stamping Donald Trump's nominees than in adequate vetting," Baker said. She challenged four Republican senators by name  Alaska's Lisa Murkowski, Arizona's Jeff Flake, Maine's Susan Collins, and Tennessee's Bob Corker — by asking whether they would "stand for the institutional integrity of the Senate." Stage direction: they do not move.
    Meanwhile, Kavanaugh's outside supporters are competing with the Senate Republicans for first place in disingenuousness. A television ad being run by the conservative Judicial Crisis Network says Kavanaugh "has earned respect from both sides of the aisle." It also includes a snippet from Kavanaugh's White House appearance, where he promised to keep "an open mind on every case." Lest any viewer be misled, however, the TV ad also shows what Kavanaugh's supporters are actually thinking: "a grand slam for conservatives."
    More than Neil Gorsuch's confirmation to succeed the late Antonin Scalia, Kavanaugh's nomination to succeed Anthony M. Kennedy could change the Supreme Court's balance of power for at least a decade or longer. "A solid conservative majority," Miguel Estrada promised to a Federalist Society luncheon last month. With so much at stake, Grassley's words eight years ago are well worth recalling. "We need to be certain," Grassley said then, "that the nominee will not come with an agenda to impose his or her personal political feelings and preferences on the bench."








Saturday, July 28, 2018

On Trump, Evidence of Collusion, Obstruction Grows

      Michael Cohen, Donald Trump's longtime fixer of a lawyer, is prepared to tell investigators with special counsel Robert Mueller that Trump knew in advance of the infamous campaign-time meeting that his son Donald Trump Jr. held at Trump Tower with a Russian offering dirt on Hillary Clinton. If true, Cohen's account comes close to evidence of Trump's conscious collusion with Russia in a presidential campaign that the Russian government, President Putin has now confirmed, wanted Trump to win.
      The New York Times followed the next morning [July 27] with a deep dive into Mueller's reported interest in fashioning an obstruction of justice charge out of Trump's various tweets aimed, the theory goes, at intimidating potential witnesses or pressuring officials to tamp down the inquiry. Mueller has reportedly stated that he will abide by he Justice Department's official view that the president is not subject to indictment, but his office could outline the criminal charge in an eventual report to Congress.
      In sum, the suggestions of criminality in the Oval Office are getting stronger and stronger: perhaps even too strong for feckless Republican lawmakers to ignore. "No collusion" sounds more and more like Nixon's plaintive denial, "I am not a crook"  with about the same degree of truthfulness.
      One other potential development is also too ominous to ignore: the possibility that Trump's Supreme Court nominee, Brett Kavanaugh, with his inflated view of presidential prerogatives, could have the decisive vote if any challenge to the Trump investigations reaches the high court. Any wavering Senate Republicans ought to be at least as concerned about that issue as they might be about the fate of women's reproductive rights if Kavanaugh is confirmed.
      The latest wrinkle on the Trump Tower meeting prompted a new spate of denials from Trump as well as from his newly enlisted lawyer mouthpiece, Rudy Giuliani. The former New York City mayor was in full finger-wagging mode as he answered every question from CNN's Chris Cuomo not with evidence but with attacks on Cohen's credibilit. "He's been lying for weeks," Giuliani said of Cohen just two months after having vouched for Cohen's honesty. "I don't see how he has any credibility."
      Cohen is reported by CNN to be saying that he saw Junior tell Trump in advance about the June 2016 meeting at Trump Tower, also attended by son-in-law Jared Kushner. Junior and Jared met, along with then-campaign manager Paul Manafort, with a Russian lawyer, Natalia Veselnitskaya, who had asked for the meet-up to share negative information about the then-leading presidential contender Hillary Clinton.
      Trump has repeatedly denied any foreknowledge about the meeting &#151 notably, in an extended interview with the New York Times in June 2017. "No, nobody told me about it," Trump told the Times with elaborate, he-doth-protest-too-much emphasis on the meeting's unimportance. "I never even heard about it." The president tweeted a new denial on Friday, accusing Cohen of a leniency-seeking fabrication. "I did NOT know of the meeting with my son, Don jr,," Trump tweeted. "Sounds to me like someone is trying to make up stories in order to get himself out of an unrelated jam (Taxi cabs maybe?)."
      A swearing contest between Trump and Cohen would be like a ball game between two under .500 teams: one side has to win whatever their past records may be. In Cohen's case, there is no documented instance of lying, however shady his appearance. In Trump's case, on the other hand, Cohen himself has provided the documentary evidence of a recorded telephone call to show that Trump, contrary to his previous denials, knew of the $130,000 in hush money paid to Stormy Daniels to try to silence her campaign-time allegations of a long-running sexual affair with Trump.
      Trump's denials about the Trump Tower meeting rang false from the very start. Junior has neither the smarts nor the guts to call the meeting without consulting Dad; nor is he smart enough to have spared Dad any information in order to provide him plausible deniability.
      The denials were never plausible in the slightest, according to Bob Bauer, former White House counsel under President Clinton. "The notion that a foreign government promising to bring groundbreaking ‘dirt’ on  Hillary Clinton to the campaign would be invited for a meeting, without running the entire suggestion by Donald Trump, at least informing and most likely getting his explicit approval, was never believable for a moment," Bauer said in an article by Vanity Fair's Abigail Tracy.
      David Corn, Washington bureau chief of Mother Jones, underlined the significance of Cohen's account, naturally enough, on Twitter. "If Cohen's account is accurate, Trump knew from the start that Putin had a secret plot to hurt HRC & help him," Corn tweeted. "Yet he constantly denied Russia was behind the attack on the US election. That is, he knowingly lied to protect a foreign adversary attacking the US. That's betrayal."
      Watergate, let it be remembered, was a national nightmare that spanned a little over two years: prolonged unnecessarily by a power-hungry president who used treachery and deception to fend off official investigations. The system worked, the nation said with a sigh of relief as Richard Nixon left office. It remains to be seen whether the system can work this time too.

Sunday, July 22, 2018

Kavanaugh on Precedents: This Wolf Comes as a Wolf

      Supreme Court nominee Clarence Thomas presented himself to the Senate Judiciary Committee as the very model of judicial restraint, with no "agenda to change existing law." Barely a week after his confirmation, however, he voted in conference to overturn a prisoner rights precedent and followed later in the term as one of four justices voting to overrule the landmark abortion rights decision Roe v. Wade
      Brett Kavanaugh was a recent Yale Law School graduate at the time and developed an intensified hero worship for the then-associate justice William H. Rehnquist after Rehnquist' called for overruling Roe in his dissenting opinion in the 1992 decision, Planned Parenthood v. Casey. Kavanaugh recalled that experience in a Constitution Day speech that he delivered, as a federal appeals court judge, to the conservative American Enterprise Institute (AEI) in September 2017.
      As President Trump's nominee to succeed Justice Anthony M. Kennedy on the Supreme Court, Kavanaugh may try to follow the Thomas example in disclaiming any predisposition to start reversing prior rulings if confirmed. But if he does, there will be even less reason to believe him than there was to accept Thomas's bald-faced dissembling a quarter-century ago.
      Kavanaugh recalled with regret in the AEI speech that Rehnquist had failed in his attempt to overturn Roe, but he credited the late chief justice with having "righted the ship of constitutional jurisprudence" in other areas, such as unenumerated rights, church-state separation, and administrative law. By the time he gave the speech, Kavanaugh was at or near the top of Trump's list of possible Supreme Court nominees in the event of a new vacancy. So the speech must be regarded as an audition for the role that Kavanaugh has now been awarded.
      As presidential candidate, Trump promised to appoint justices who would overturn Roe v. Wade if confirmed. In his Senate Judiciary Committee questionnaire, posted online over the weekend, Kavanaugh replied with a simple "no" to the question of whether anyone in the White House or executive branch had asked him for an assurance on how he would vote on a given issue or in a given case. Even accepting the unelaborated denial, however, there simply was no need for the White House to ask since Kavanaugh has already gone on record with a list of three important precedents that he would overrule if confirmed.
      Speaking to the AEI in March 2016, Kavanaugh spoke eagerly of hoping to overturn the 1988 decision in Morrison v. Olson that upheld the independent counsel statute over Justice Antonin Scalia's lone but oft-quoted dissent. Kavanaugh said, in an oversimplification, that the decision had been "effectively overruled," but he followed by vowing, "I would put the final nail in."
      Scalia's criticism of the now-lapsed law as wrongly giving unchecked power to a special prosecutor aimed at officials in the executive branch carried the day a decade later when Congress decided not to renew the statute. So the case is not overruled but simply moot. Still, the discovery of the AEI speech seemed to some to have possible implications for Kavanaugh's views of special counsel Robert Mueller.
      The White House was concerned enough about this inside-baseball story to dispatch deputy press secretary Raj Shah to stress that Mueller was appointed under a Justice Department regulation that would be unaffected by overturning the 1988 precedent. Kavanaugh's disagreement with the decision does have present-day relevance, however.
      Kavanaugh cited Scalia's dissent approvingly when he voted in dissent from the D.C. Circuit's decision in January to uphold the structure that Congress enacted in establishing the Consumer Finance Protection Board (CFPB). Congress created the CFPB as an independent agency to be headed by a single director, protected from removal by the president except for cause.
      In dissent, Kavanaugh discovered a constitutional rule requiring independent regulatory agencies such as the Federal Trade Commission and others to be headed by multimember commissions, not by a single director. Republicans and business interests that opposed the CFPB are now pressing a constitutional challenge even as Trump's interim nominee as director is leading a retreat from the agency's mission,
      Kavanaugh is also on record as wanting to limit the decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council (1984) that calls for judicial deference to administrative agencies when interpreting their powers under ambiguous congressional enactments. In a speech to the conservative Heritage Foundation, Kavanaugh outlined an approach that would effectively overrule the decision by requiring more explicit statutory language before upholding administrative agencies on "major" policy decisions. Conservative groups that have declared war against "the administrative state" are rallying around Kavanaugh as their champion for the battle.
      In his dissent in Morrison v. Olson, Scalia famously used the biblical metaphor of a "wolf in sheep's clothing" to warn of the law's dangers. Some issues come to the Court in "sheep's clothing," Scalia wrote. But, he concluded, "This wolf comes as a wolf."
      Kavanaugh may try on sheep's clothing when he comes before the Senate Judiciary Committee in hearings to be held in September. But senators ought not allow themselves to be fooled. This wolf comes as a wolf, with a public record of wanting to overturn judicial precedents. Whatever his answers at the hearing, two pro-choice Republicans senators, Alaska's Lisa Murkowski and Maine's Susan Collins, need to understand that Kavanaugh's confirmation quite likely could "put the final nail in" on Roe v. Wade. Rarely has so much turned on one or two votes on the floor of the U.S. Senate.

Sunday, July 15, 2018

Brett Kavanaugh's Situational Ethics

      In law, as in politics, where you stand may depend on where you sit. Brett Kavanaugh's on-and-off relationship with the U.S. presidency demonstrates that he is a creature of situational ethics, far from the judge of unbending moral principle as his admirers claim.
      Kavanaugh was a 30-something Republican lawyer on the make when he signed up with independent counsel Kenneth Starr for the impeachment of the popular-majority elected Democratic president Bill Clinton for lying about sex. His admirers emphasize that Kavanaugh argued for omitting from Starr's report the salacious details of Clinton's relationship with the White House intern Monica Lewinsky.
      Despite his sensibilities about sex, Kavanaugh had no political scruples about the nakedly partisan drive to impeach Clinton for a peccadillo and remove him from office. The Senate, it will be remembered, rejected the perjury charge on a 45-55 vote and deadlocked 50-50 on the obstruction count, far short of the two-thirds majority required for conviction.
      History now judges the Clinton impeachment as a mistake. A decade later, Kavanaugh himself appeared to have second thoughts, at least to some extent, as seen in a law review article published in 2008 now attracting close attention after his nomination to the Supreme Court.
      With George W. Bush's presidency about to end,, Kavanaugh reflected on his five years-plus in the Bush White House as staff secretary or associate counsel to call for shielding the president from legal investigations. "Congress might consider a law exempting a President—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel," Kavanaugh wrote in the article published in the Minnesota Law Review.
      A decade earlier, the Supreme Court in Clinton v. Jones (1997) had refused to find the president constitutionally entitled to such immunity. Kavanaugh stopped short of disagreeing with the Court, but he admitted that his views back then, "in retrospect," were "a mistake." In a sentence now startlingly prescient, Kavanaugh concluded, "A President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President."
      By the time of the law review article, Kavanaugh was a judge on the U.S. Circuit Court of Appeals for the District of Columbia, appointed to the bench at the young age of 41 by Bush, a fellow Yale alumnus. The Republican-controlled Senate confirmed his nomination on a 57-36 vote in spring 2006 after Democrats had delayed the confirmation for three years by citing his partisan record in the Clinton impeachment and the Bush White House.
      Kavanaugh complained in the law review article about the confirmation process and called for ensuring "prompt Senate votes on executive and judicial nominations." With a Democrat in the White House eight years later, however, Kavanaugh appeared to have forgotten his previous recommendation. He watched from the sidelines, in public silence, as the Republican-controlled Senate refused to consider President Obama's nomination of Kavanaugh's D.C. Circuit colleague, Merrick Garland, to the Supreme Court.
      In the law review article, Kavanaugh had called for the Senate to adopt a rule requiring a vote on "every judicial nominee" within 180 days of the nomination. The Senate's tactic drew no public objection from Kavanaugh's chambers.
      President Trump passed over Kavanaugh's pre-judicial record in announcing his decision to nominate Kavanaugh for the vacancy created by Justice Anthony M. Kennedy's retirement. His many supporters mostly follow suit: they see in his 12 years on the federal bench the very model of a judge's judge. They also profess no concern whatsoever that Kavanaugh will be less than independent of his presidential benefactor if confirmed.
      The question is hardly academic, with Trump under investigation at the very moment. "I don’t know of any justice who has staked out as strong a position on presidential immunity even from questioning as Judge Kavanaugh has,” Walter Dellinger, a former acting U.S. solicitor general in the Clinton administration, remarked to The New York Times.
      Michael Gerson, a colleague of Kavanaugh's as a Bush speechwriter and now a syndicated columnist, pooh-poohed any worries about Kavanaugh's independence. Kavanaugh, Gerson wrote, knows that the Court itself may have to impose restraints on Trump's "lawlessness and bullying" and "has the character and patriotism to act upon it."
      Kavanaugh showed no such character in accepting the nomination with Trump at his side. Instead, he fawned over the president, gratuitously and as the worst kind of toady. "No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination,” Kavanaugh said. Trump surely lapped it up, but the assertion is palpably false and surely beyond Kavanaugh's personal knowledge besides.
      Moments later, Kavanaugh also complimented Trump by saying that he had the opportunity to view the president's "respect for the judiciary." Apparently, Kavanaugh paid no attention when candidate Trump accused the judge in the Trump University case of being biased against him because of the judge's Mexican heritage. And apparently Kavanaugh also missed the president's various criticisms of the several federal judges who ruled against his travel ban.
      Those are not the words of a justice prepared to stand up against Trump's megalomaniacal view of his powers as president. Critics naturally view Kavanaugh not as the strong-backboned jurist that his former colleague Gerson believes him to be, but as a likely servile apologist for the president in any potential legal challenge to his powers.

Sunday, July 8, 2018

At Supreme Court, Weaponizing the First Amendment

      No aspect of American exceptionalism deserves patriotic celebration more than our beloved First Amendment with its open-ended promise of freedom of speech, freedom of press, and freedom of religion. Our birthright as Americans includes the freedom to say what we what, think what we want, and believe what we want without needing permission from the government.
      In the 90 years since the Supreme Court first incorporated the First Amendment against state and local governments, the Court has enforced its provisions in the service of free expression from sea to shining sea. But the Supreme Court ended its 2017 term with a pair of decisions that allowed groups with no real interest in free speech to turn the First Amendment into a weapon against democratically enacted policies protecting union rights in one instance and reproductive rights in the other.
      The Court not only entertained but validated phony "compelled speech" claims in the two decisions: Janus v. AFSCME and NIFLA v. Becerra.. In Janus, an Illinois government employee, Mark Janus, wanted to get out of paying a fair share of AFSCME's costs in representing him and other non-union members in collective bargaining and grievance procedures, as allowed under Illinois law. In NIFLA, the national trade association representing anti-abortion crisis pregnancy centers wanted to get  two centers in San Diego County out from under a California law that required them to give pregnant women accurate information about the availability of the full range of pregnancy-related counseling and services from state agencies.
      Compelled speech claims have an honored history at the Supreme Court. Marie and Gathie Barnett won a place in U.S. Reports after they refused, as Jehovah's Witnesses, to pledge allegiance to the U.S. flag while elementary school students in West Virginia during World War II. Speaking for the 6-3 majority in West Virginia State Board of Education v. Barnette, Justice Robert H. Jackson famously and quotably declared that in the United States "no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."
      The majority opinions in the two new decisions pay obeisance to this principle, but it is window dressing for policy-driven results in both. The conservative bloc's true agenda, is palpable in the anti-union subtext in Justice Samuel Alito's opinion in Janus and in Justice Clarence Thomas's relative indifference in NIFLA toward pregnant women's interests in full information about their medical and legal options.
      The groups supporting Janus made no secret of their true intention of trying to weaken public sector unions and weaken their influence in election campaigns. In one fundraising letter, the anti-union Freedom Foundation promised that a ruling for Janus "should take the government unions out of the game for good."
      In NIFLA, the conservative justices' own policy preference was evident in Thomas's effort to reconcile the new decision with a seemingly contradictory ruling that was part of Planned Parenthood v. Casey (1992). Back then, the Court upheld a Pennsylvania law requiring doctors to inform a woman before an abortion about supposed health risks from the procedure and to give the woman information about the fetus: no compelled-speech problem found. Thomas was part of the majority on that part of the ruling, but a quarter-century later he drew the line at requiring the pregnancy centers to post a simple sign that low-cost public programs were available.
      Thomas explained that the Pennsylvania law was about informed consent before a medical procedure and the California law merely a plug for the state's programs. But as Justice Stephen G. Breyer explained in his dissent, pregnancy and childbirth are medical procedures: the California law, no less than the upheld Pennsylvania provision, was aimed at making sure pregnant women had complete information.
      Breyer aptly warned that the decision threatened other consumer protection provisions: as one example, he cited a California law requiring hospitals to inform new parents about child safety seats. And just two days later the Court told the federal appeals court in California that NIFLA might be grounds for striking down a local ordinance requiring cell phone providers to warn users that keeping a cell phone in a pocket might result in radiation exposure in excess of federal guidelines.
      In , Alito dissembled just as Thomas did by failing to make clear that the agency fees Janus and others were required to pay could not be used to pay for the union's political advocacy outside the collective bargaining context. As Justice Elena Kagan explained in dissent, "no part of those fees could go to any of the union's political or ideological activities." 
      The fallout from Janus will be broad and direct. The ruling invalidates laws in 22 states that allow public sector unions to charge agency fees to non-members. The unions in those states will take a financial hit, just as the anti-union funders for Janus wanted, and the hundreds of contracts negotiated with agency fees for non-members included presumably reopened.
      The 5-4 splits in the two decisions speak less to constitutional law than to raw politics. In her dissent in Janus, Kagan rightly complained that the majority was "turning the First Amendment into a sword and using it against workaday economic and regulatory policy." The First Amendment, she said, "was meant for better things."

Sunday, July 1, 2018

Supreme Court's Willful Blindness on Travel Ban

      None are so blind as those who refuse to see. That well-worn adage applies perfectly to the Supreme Court's willfully blind decision to uphold President Trump's travel ban despite its evident anti-Muslim animus and its transparently pretextual national security rationale.
      To be clear, Chief Justice John G. Roberts Jr. recited much of the evidence of Trump's anti-Muslim prejudice before getting his four Republican-appointed conservatives to go along with upholding Trump's Proclamation 9645, his third iteration of travel restrictions aimed mostly at Muslim-majority countries. Trump issued that proclamation in September 2017 after federal appeals courts had struck down his first two executive orders — so-called EO1 and EO2 — as unconstitutional or illegal or both.
     Trump claimed complete vindication within minutes after Roberts announced the Court's decision in Trump v. Hawaii at the end of Tuesday's court session [June 26]. But his ears should have been burning. Roberts disclaimed any role for the Court to "denounce" Trump's statements, but he recited what any reasonable observer would have regarded as a damning summary.
      Speaking for two of the four Democratic-appointed dissenters, Justice Sonia Sotomayor showed no such reticence in detailing Trump's "deeply offensive" comments dating from his September 2016 campaign promise of a "total and complete shutdown of Muslims entering the United States . . . ." From the bench, Sotomayor continued with details that spanned six pages in her written opinion. She ended with Trump's retweet in November 2017 of virulently anti-Muslim videos posted by a British political party with an explicitly Islamophobic platform.
      Sotomayor, joined by Ruth Bader Ginsburg but not the other two liberal justices, acknowledged Roberts' point that the issue for the Court was not whether to denounce those statements. The "dispositive" issue, she explained, was whether a reasonable observer would conclude from all this information that the proclamation's "primary purpose" was "to disfavor Islam and its adherents by excluding them from the country." 
      Surely, Sotomayor concluded in a tongue-lashing like none other ever delivered from the Supreme Court, the answer to that legal question was yes. Trump, she noted "has never disavowed any of his prior statements about Islam," despite "several opportunities to do so." And so, she went on, the proclamation cannot be upheld against the charge of Constitution-violative religious animus by the putative national security concerns. The "unassailable fact," she explained, is that the proclamation "is contaminated by impermissible discriminatory animus against Islam and its followers."
      For Roberts and the other Trump-excusing justices, the issue was not the First Amendment's protection of religious freedom but Article II's grant of executive power. Other presidents had imposed country-specific travel bans, Roberts noted: Reaagan on Cuba, Carter on Iran. The Court's decision, he noted, must avoid shackling some future president from acting on a real national security concern. But for Sotomayor that was the point: a future president must be prevented from acting on unconstitutional animus, just as the Court in Korematsu should have prevented FDR from interning Japanese citizens on trumped-up fears of national security.
      A note about the religious liberty at stake: not the religious freedom of the beyond-our-borders traveler or asylum applicant, but the religious freedom of U.S. residents and citizens to interact with friends, relatives, colleagues, and others without governmental discrimination. Lost in the Court's decision was the University of Hawaii's ability to meet with scholars from the affected countries, a U.S. citizen's ability to welcome his mother-in-law from another of the affected countries, and — in the other case, from the Fourth Circuit — the International Refugee Assistance Project's ability to aid asylum applicants from the affected countries.
      Sotomayor rightly dismissed the administration's attempts to find legal justification for what originated as and continued as an anti-Muslim travel ban. The conservative majority swallowed the administration's line that a worldwide interagency review of travel security in other countries justified the inclusion of the countries that remained from EO1 and those added since. As Sotomayor noted, this review was a scant seventeen pages in length. 
      In a separate opinion, Justice Stephen G. Breyer, joined by his pragmatic liberal colleague Elena Kagan, voiced disbelief about another of the administration's claims in defending the travel ban. At oral argument, Solicitor General Noel Francisco emphasized that the proclamation included waiver provisions that he assured the Court would be applied in generous good faith. 
      Wrong, Breyer noted, in his opinion issued two months later. The number of waiver applicants approved so far is a minuscule percentage of the total: 430 out of more than 6,500. In addition, he noted, the administration has yet to issue formal guidance for consular officers to follow in exercising their supposed discretion to grant waivers.
      Breyer suggested a remand rather than a ruling so that lower federal courts could examine the actual implementation of the proclamation. The conservatives had no interest, but the opportunity may yet arise: a Muslim advocacy group filed a federal court lawsuit on Friday [June 29] challenging the proclamation on a facts-on-the-ground basis. 
      Still, Sotomayor was surely right with her final words. "Our Constitution demands, and the country deserves, a Judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments," she wrote. "[T]he Court's decision today has failed in that respect. . . "