Friday, August 18, 2017

Charlottesville Marchers: Few Remedies for Losing Job

      Nigel Krofta, self-identified white nationalist, was neither surprised nor upset when he learned that he had been fired from his job back home in South Carolina for participating in the "Unite the Right" rally in Charlottesville, Va.  Krofta learned the news through social media, he explained in a story posted by the Charleston television station WCSC, because he lost his phone during the tumultuous events of Aug. 12-13.
      Limehouse & Sons, the Ladson, S.C., industrial contractor where Krofta had worked, announced the firing on its own Facebook page. Krofta "is no longer an employee of Limehouse & Sons," the post read. "We do not condone the actions of the people involved in this horrific display that has taken place in Charlottesville," the post went on.
      The company's managers spotted Krofta in a picture in the New York Times standing next to James Fields Jr., the Nazi-sympathizing 20-year-old accused of killing one person and injuring 19 others by driving his car into a crowd of counterprotesters. "It was a sick feeling to know that we had somebody like that working here alongside the rest of us," a Limehouse official who asked not to be identified told the TV station.
      Krofta, who appears from his picture to be in his 20s or early 30s, took it mostly in stride. "If they're going to lose business for it, I don't blame them for it," he told the station's reporter. But he also complained that the demonstrators were being mischaracterized. "What do I say to people who say we stand for hate?" he asked rhetorically. "I just say broaden your horizons and maybe read some opposing views."
      Others in Krofta's situation — and at least three other Charlottesville marchers have lost their jobs under similar circumstances — might have immediately sought out a lawyer to get their job back or sue for damages. But David Yamada, a labor law expert at Suffolk Law School in Boston, says employers generally can fire an employee for political activities — for anything ranging from a campaign contribution up through a demonstration turned violent.
      In general, most U.S. workers are "at will" employees, as Yamada explains in a post on his blog Minding the Workplace. A worker can be fired, without notice or cause, unless the firing would violate a specific protection written into federal, state, or local law or a provision of a collective bargaining agreement or an individual contract with the employer. "Many of the civil liberties we enjoy as citizens stop at the company door," Yamada explains.
      Some states do have laws restricting an employer's ability to fire a worker because of political participation, but those laws, it appears, are not enforced or observed as strictly as the well known civil rights laws prohibiting discrimination in the workplace based on race, religion, or sex or in nearly half of the states sexual orientation. In any event, Yamada cautions that employers should be wary about monitoring their employees' off-site political activities. "We don't want employers doing much of that," he says. "It's not good for the country if people can't participate."
      The Charlottesville-related firings come in the nearly immediate wake of the heated controversy over Google's decision to fire a software engineer for writing an internal memo critical of the company's efforts to get more women into leadership roles. James Damore attributed the underrepresentation of women to inherent "personality differences" between men and women and called the company's affirmative action policies "unfair, divisive, and bad for business." Google explained the Aug. 7 decision to fire Damore by saying that he was ''advancing harmful gender stereotypes.''
      News of Google's actions generated front-page news and provoked sharp criticism of the company from the so-called "alt right," the loosely defined conservative political movement tinged with white nationalist views. Alt-right forces also sponsored the Charlottesville demonstration, but a few days after some of the marchers lost their jobs no protests have been heard about the firings.
      Yamada is somewhat critical of Google's decision to fire Damore, but he finds the virtual silence about the Charlottesville marchers' fates unsurprising. "The Google situation looks like child play compared to the issues raised by Charlottesville," he says.
      California is one of the states with laws prohibiting workplace discrimination based on political expression. One of the Charlottesville marchers who lost his job is Cole White, fired from his job at a Berkeley hot dog place, Top Dog. "The actions of those in Charlottesville are not supported by Top Dog," the company said in a sign it posted during the weekend of the demonstration.
      Trump's white working-class workers might be surprised to learn that the National Labor Relations Board, part of the much-maligned "deep state," helped a white worker get his job back after he was discharged for racist slurs directed against picket-line crossing African American replacement workers. The NLRB found that Cooper Tire & Rubber Co. had violated federal labor law by firing Anthony Runion for the picket-line slurs during a lockout at its Findley, Ohio, plant in January 2012.
      In a decision earlier this month [Aug. 8], the Eighth U.S. Circuit Court of Appeals upheld the board's ruling. The majority rejected the company's defense that it was seeking to prevent a hostile work environment after the lockout ended. In dissent, however, Judge C. Arlen Beam stated what appears to be a correct statement of the general law on the issue. "No employer in America is or can be required to employ a racial bigot," Beam wrote.

Saturday, August 12, 2017

Courts Asked to Examine Trump's 'Emoluments'

       Jimmy Carter placed his peanut farm into a blind trust before moving into the White House to eliminate any risk of conflict of interest with his presidential powers and duties. As candidate and then as president, Donald Trump made a pretense, but no more than that, of separating himself from a still undisclosed web of business interests not only in the United States but also in countries throughout the world.
       As candidate, Trump's refusal to detail his financial interests was a political issue that failed to block his path to the White House. As president, however, Trump's continuing profit from businesses patronized by foreign and state governments alike amounts to a legal issue and, according to many legal experts, an ongoing violation of two provisions of the Constitution: the domestic and foreign emoluments clauses.
      Trump is facing three separate lawsuits that accuse him, in effect, of making a personal profit out of the White House from state and foreign governments seeking to curry favor with him. The Framers of the Constitution were concerned enough about the risk of such corruption to write two separate clauses to prevent it. (For the text, see Art. I, § 9, cl. 8; Art. II, §1, cl. 7).
       Con law courses mostly skip over the Emoluments Clauses because the Framers did their jobs so well that the feared risk of official corruption has mostly failed to materialize. But the Trump presidency now challenges the Framers' handiwork with the question of how to apply the clauses to a president unwilling to accept established political norms limiting personal profit-making at 1600 Pennsylvania Avenue.
      At the six-month mark, Trump must be rated as a mostly failed president with record-high disapproval ratings and nothing by way of major legislation. But the White House has been very good for business at the Trump Hotel just down the street.
       The Trump Hotel had been projected to lose $2 million in the first four months in 2017, but instead turned a $2 million profit, according to an account in the Washington Post (Aug. 11). Rooms at the hotel rent for $600 a night and cocktails sell for as much as $100 to patrons who include foreign diplomats, political figures, and business interests. In another instance of price gouging, fees at Trump's Mar a Lago golf resort were doubled in January over what they had been a year earlier.
      The Emoluments Clause lawsuits may be misunderstood by some as asking courts to oust Trump as president; they are not. The lawsuits ask courts to define the scope of the clauses broadly, find Trump in violation of the clauses, and prohibit any further violations. The remedy would be a huge judicial undertaking, but it would not entail a reversal of the 2016 election even if some of those cheering the lawsuits on would welcome that result.
      The lawsuits serve a salutary purpose even if ultimately unsuccessful. If the plaintiffs are allowed broad discovery, the public can finally learn the details of Trump's finances that he refused to disclose during the campaign.That information would help the public judge his presidency and would also help members of Congress in considering their own powers, up to and possibly including impeachment.
      For now, questions such as those are months down the road as the three pending lawsuits move slowly through separate courts. In the first of the three, the Washington-based Citizens for Responsibility and Ethics (CREW) in Washington is leading an assortment of private plaintiffs in a suit filed in January in federal district court in New York City. Other plaintiffs include a hotel and restaurant owner in New York City and an event booker in Washington, who say they are hurt by the competitive advantage Trump enjoys thanks to being president. The two other suits are pending in federal court in Washington: one brought by the District of Columbia and Maryland and the other by a record 196 members of Congress (Blumenthal v. Trump).
      CREW's suit is now set for an initial hearing before Judge George Daniels on October 18 after opening legal briefs from both sides and from various friends of the court. In the interest of brevity, the briefs will be crunched down here to the major points of disagreement.
      The first issue is the very definition of the word "emolument," so little used in common parlance. The Justice Department lawyers representing Trump argue that it does not encompass profits from arms-length commercial transactions, only compensation for official services. Both sides cite dictionary definitions, but etymology favors the broader construction argued in the plaintiffs’ brief. The root is the Latin verb "molere" meaning to grind. In Middle French, an emolument was the fee the farmer paid to the miller for grinding: an arms-length commercial transaction of the sort Trump's lawyers say is excluded.
      Trump's lawyers naturally argue the plaintiffs have no standing, but the competitively disadvantaged business operators make a good case that they are being hurt right now. Just as naturally, the Justice Department argues that courts have no power to enjoin the president: they cite a 150-year-old Supreme Court decision as authority, but skip lightly over more recent decisions. Like so much of Trump's unpredictable presidency, the outcome defies predictions. For court watchers and public alike, the best advice: stay tuned.

Sunday, August 6, 2017

As AG, Justice Not on Sessions' Agenda

      Attorney General Jeff Sessions might have had a momentary chill when his assistant told him last weekend [July 29] that the White House was on the line. But the caller, it turned out, was not his berating tweeter in chief, President Trump, but the new White House chief of staff, John Kelly, calling to assure Sessions that he could rest easy about staying in office.
      Thus reassured, Sessions still spent the next week doing what he could to raise himself in Trump's esteem with, among other policy moves, a full-scale press op to detail a resource-fed crackdown on leakers. Trump had recently taken to describing Sessions in tweet storms as "weak" and "beleaguered" based on apparently inadequate prosecutorial attention to a rash of unauthorized disclosures weakening his already weak presidency.
      The press conference that Sessions convened along with two top Trump administration intelligence officials [Aug. 4] followed news from earlier in the week that the Justice Department was deploying its civil rights division to crack down on racial preferences in college and university admissions. Ironically, news of the policy shift emerged not from an official announcement but from a leak to the New York Times's well-sourced reporter, Charlie Savage.
      The leak helped renew the vigorous debate over affirmative action in political, legal, and media circles: the pros and cons of racial preferences for minority applicants themselves; the larger role of "legacy preferences" in favoring white applicants; and the possible effect of preferences for African American and Hispanic applicants on Asian American applicants. In political terms, however, the details of that debate are less important than the signal that Sessions' policy shift sends to Trump's political base and to the conservative legal movement.
      Those constituencies undoubtedly view Sessions' latest policy shift favorably as a clear sign that Alabama's favorite son is on their side in the culture war against the coastal elites —  the "cosmopolitans," as White House aide Stephen Miller might call them. Already in just six months, Sessions has shifted Justice Department policy on civil rights by backtracking from the Obama administration's opposition to Texas's voter ID law as racially discriminatory and by formally opposing the Equal Employment Opportunity Commission's position treating anti-LGBT discrimination as illegal under existing federal civil rights laws. In his confirmation hearing, Sessions endorsed voter ID laws and disclaimed any knowledge of anti-LGBT discrimination.
      The anti-leaking event gave Sessions the chance to rail about "the culture of leaking" only a week after Trump's latest tweet that Sessions had "taken a VERY weak position" on "Intel leakers. In contrast to the reversals of Obama policies, Trump told the assembled reporters in the department's seventh-floor conference room that the department is following and actually outstripping the previous administration by tripling the number of leak investigations over the number ongoing as Obama left office.
      The leak investigations that the Justice Department identified for the Washington Post's reporters covering the event are not the kind that Trump is complaining about. Only one of the four related to the media: the leak of a top-secret National Security Agency document to a news organization from Reality Leigh Winner, a 25-year-old government contractor. The other three cases listed by the DOJ spokesman all related to contacts with or disclosures to foreign intelligence agents.
      Journalists naturally flinch when the government talks about cracking down on leaks. Tellingly, Sessions declined at the news conference to repeat previous Justice Department reassurances that journalists would not be prosecuted for publishing truthful information or that journalists would be subpoenaed to disclose sources only under limited circumstances.
      Sessions' silence on those concerns is troubling of itself, but more troubling is the extravagantly broad view that Trump and his supporters are taking of what constitutes an "illegal" leak. Trump and any number of his cable news apologists constantly complain about James Comey's supposedly illegal leak of his conversation with Trump while still FBI director in January: the conversation in which Trump allegedly asked Comey to end the investigation of former national security adviser Michael Flynn.
      Comey's divulging of that conversation, through an intermediary, was embarrassing to the White House certainly, but in no way illegal. No classified information was released, nor any details as to the FBI's pending investigation: only the president's views and his policy directive. Consider how often government officials, members of Congress, or private citizens go straight from an Oval Office conversation to recount the conversation to reporters waiting just outside the mansion. That is not a felony, only part of governance in a free-press, democratic republic.
      Sessions won confirmation as attorney general on a 52-47 vote in the Senate, with the support of his 51 Republican colleagues and one Democrat: West Virginia's Joe Manchin. Sessions remains the same hard-line conservative that he was before that vote and in his confirmation testimony, but today he enjoys support from both sides of the partisan aisle thanks to Trump's criticism of him for failing to recuse himself from the Russia investigation.
      Kelly's call to Sessions may show that Trump has either dropped or been dissuaded from any idea of firing him as a first step in removing Robert Mueller as special counsel for the Russia investigation. For the sake of that investigation, Sessions may still be needed in his post. But make no mistake: as attorney general, justice is not on Jeff Sessions' agenda.

Sunday, July 30, 2017

At White House, Irregular Order as Things Fall Apart

      Arizona's John McCain was praised from all sides when he returned to the Senate floor from his hospital bed on Tuesday [July 25] to plead for a return to "regular order" in the Republican-led drive to repeal and replace Obamacare. At the other end of Pennsylvania Avenue, however, it was irregular order as usual the next day when President Trump used a series of early morning tweets to announce that transgender individuals would no longer be allowed in military services.
      Trump's abrupt three-tweet fiat early Wednesday morning came with Defense Secretary Jim Mattis on vacation and the Pentagon and the service chiefs awaiting completion later this year of a study on how to implement the Obama administration's decision to lift the prior ban on transgender individuals in the military. Trump claimed to have consulted with "my Generals and military experts" before making the decision, but two news cycles later none of those supposedly consulted in advance had been identified.
      At the least, Mattis was not consulted but "informed" of the decision on Tuesday, according to the Wednesday briefing by newly White House press secretary Sarah Huckabee Sanders. The Joint Chiefs of Staff issued a memorandum to the services on Thursday clarifying that no presidential order had been received and nothing would change until and unless an order was received.
      The transgender ban, widely denounced and widely depicted as unlikely to survive the inevitable legal challenge, was one of two body blows the Trump administration delivered to the LGBT community on Wednesday. The Justice Department filed a friend-of-the-court brief the same day with the federal appeals court in New York City to argue against recognizing anti-LGBT discrimination to be illegal under the Civil Rights Act of 1965.
      The brief — signed by lawyers in Justice's civil division, not the civil rights division — comes in a case, Zarda v. Altitude Express, to be argued in late September before the full Second Circuit appeals court. The court's eventual decision will be a tie-splitter of sorts between conflicting decisions on the issue within the past year by the Seventh and the Eleventh Circuit courts.
      The brief puts the Justice Department at odds with the Equal Employment Opportunity Commission (EEOC), which has taken the position for several years that Title VII's prohibition against discrimination on the basis of sex necessarily precludes discrimination on the basis of sexual orientation or gender identity as well. Robert Loeb, a Washington lawyer who served in Justice's civil division for 20 years, noted that the civil division's lead role in the case signaled a "political decision" behind the position. "It shows that it's not being treated as a civil rights issue," he said.
      The news of the Justice Department brief went viral in the LGBT community and in legal circles generally, but it was buried in the day's news coverage by the continuing chaos in the White House. The transgender ban is only the latest of many examples of policymaking by tweet in Trumpland. Trump has been using 140-character tweets for the past two weeks to berate his attorney general, Jeff Sessions, and all but beg him to resign to spare the president the trouble of firing him.
      Trump's discontent with Sessions originates with the attorney general's ethically required decision to recuse himself from overseeing the investigation of any Trump campaign connections to Russian agents seeking to influence the  2016 election. But Trump added to the bill of particulars by describing Sessions as "weak" and pressing him to investigate and presumably prosecute his Democratic opponent Hillary Rodham Clinton and any of the "leakers" responsible for damaging disclosures from within the administration
      Leaks are also on the mind of the White House's new communications director, Anthony Scaramucci, who  was sucking up to his boss by publicly promising to crack down on supposed leakers working right there at 1600 Pennsylvania or next door in the old Executive Office Building. Scaramucci is sucking up to his boss by depicting leaks and leakers as the reason why Trump's legislative initiatives are mired in congressional quicksand. Scaramucci was promising to fire any leakers inside the White House and naming the on-his-way-out chief of staff Reince Preibus as one of those in his crosshairs.
      Even with chaos at the White House and in the Senate, Trump's supposed transgender ban still ranks near the top of the list of self-inflicted wounds. Trump's stated rationale was to avoid burdening the military with "tremendous medical costs and disruption." That rationale was actually contradicted by a study already completed by the respected, nonpartisan RAND Corporation.
     The impetus for the ban came not from the military but from Capitol Hill, where the House was tied up on an amendment to prohibit the military from paying for the medical costs of transitioning for transgender service members. The RAND study estimates the number of current transgender service members at 11,000 and says medical costs would be a pittance: $2 million to $8 million a year, less than the military spends on erectile dysfunction meds.
      Asked whether current transgender service members would be expelled, Sanders had no answer other than time will tell. That was also Trump's verbatim answer when asked whether Sessions would stay in office. On both of those issues, Trump was suffering defections during the week from emboldened Republicans on Capitol Hill. The disarray calls to mind the line from Yeats' famous poem: "Things fall apart."

Sunday, July 23, 2017

Trump Leaving His Mark on Federal Courts

      The White House may be in total disarray and the Senate in legislative deadlock, but Donald Trump still has the wherewithal to find conservative ideologues to nominate for lifetime seats on federal courts and get them confirmed by subservient Senate Republicans.
      At the six-month mark of his presidency, Trump's supporters and apologists put the confirmation of Supreme Court Justice Neil Gorsuch at the top of a short list of significant accomplishments. Even though hard-fought and narrowly won, Gorsuch's confirmation shows the White House a path toward more victories to feed to the minority of Americans who constitute Trump's political base.
      Against that backdrop, it bears repeating that Trump is on a record pace of judicial nominations at this point in his popular-vote loss presidency, according to figures compiled by Ronald Klain, a veteran Democratic politico, for an op-ed in the Washington Post. Trump's 27 nominations for federal district court judgeships through mid-July are more than three times Obama's total for the comparable period and double the number for Reagan, Bush41, and Clinton combined, according to Klain's count.
      For the federal courts of appeals, Trump has named nine nominees; no president before Trump has named more than three whose nominations were processed in his first six months, according to Klain. Trump's opportunities are a gift from Senate Republicans, who did far more than block Merrick Garland's Supreme Court nomination last year. They also left a record 137 federal judicial vacancies for Trump to begin filling on his first day in office.
      Trump picked up a win last week when the Senate confirmed an anti-gay conservative lawyer and intemperate political blogger to the federal appeals court for the four-state circuit that includes my home state, Tennessee. John Bush won confirmation to the Sixth U.S. Circuit Court of Appeals by a strictly party-line vote of 51-47.
      On paper, Bush has the basic qualifications for a federal judgeship: a Harvard law degree, a clerkship with a federal appellate judge, and two decades as a commercial litigator with a well-regarded Louisville law firm, as the invaluable blog The Vetting Room detailed in its coverage. But the political rants that he posted for years under a pseudonym on a political blog created by his wife mark him as lacking the judicial temperament and sound judgment that are as important, if not more so, than academic and professional credentials.
      Two liberal groups, People for the American Way and Alliance for Justice, helped spearhead opposition to the nomination in advance of Bush's contentious Senate Judiciary Committee hearing last month. Gay rights groups, including the Human Rights Campaign, joined in urging his defeat based on, for example, a blog post mocking the State Department's revision of the passport application to accommodate same-sex marriages. The critics also cited a post that likened the Supreme Court's infamous pro-slavery decision in the Dred Scott case to the reproductive rights decision in Roe v. Wade.
      Bush got an unenthusiastic passing grade of "qualified" from the American Bar Association's Standing Committee on the Federal Judiciary, not the other, higher rating of "well qualified." In fact, Bush's qualifications pale in comparison to the typical nominee for a federal circuit court. More commonly, a circuit court nominee has a distinguished record as a law school professor, state or federal judge, or other government official. On the current Supreme Court, the eight justices who served on federal circuit courts all had qualifications like those before their nominations.
      In place of objective qualifications like those, Bush's record included political lawyering and, perhaps most important, two decades of helping to lead the Louisville chapter of the Federalist Society. The Federalist Society has been a career ladder for would-be federal judges under Republican administrations dating to its founding in the Reagan era.
      Under Trump, the relationship has been de facto formalized: Gorsuch was on the list of 20 names for the Supreme Court post that the group submitted at Trump's request during the presidential campaign. Trump marked the successful confirmation vote by meeting at the White House in pep rally-style with Federalist Society leaders.
      Bush's lawyering included work on Reagan's Iran-contra defense team. As commercial litigator, he worked on behalf of a tobacco company in an unsuccessful court get out of its obligations under the master settlement that tobacco companies negotiated with state attorneys general. On the other hand, he also represented the Louisville Area Chamber of Commerce in an amicus brief at the Supreme Court unsuccessfully urging the justices to uphold the school district's desegregation policies.
      In the final hour of debate on Bush's nomination, his fellow Kentuckian, Senate Majority Leader Mitch McConnell, urged senators to confirm "my friend John Bush." McConnell minimized the controversy over Bush's blog posts by noting similar blogging by previous Democratic judicial nominees. Minnesota Democrat Al Franken rejected the comparison by noting that Bush's posts included endorsement of the phony Obama "birtherism" controversy and links to alt-right and conspiracy-theory sites. The job, Franken noted, is "judge" and the job requires "judgment," which he said was lacking in Bush's blogging.
      Thirty years ago, six Republican senators crossed party lines to add to the margin of defeat for Robert Bork's nomination to the Supreme Court. That was then, this is now. Franken's plea fell on deaf ears on the Republican side of the aisle. With political independence in short supply among GOP senators, a president who openly disdains the rule of law is on a path to leaving a lasting, black mark on the federal judiciary.

Sunday, July 16, 2017

Court's Un-Common Sense on Sex Offenders

      The Supreme Court hit a home run in First Amendment terms with its unanimous decision to strike down a North Carolina law that banned convicted sex offenders from accessing commercial social networking sites used by minors for personal profiles or the like. But the court's decision in Packingham v. North Carolina was more than a free-speech victory. The decision also injected some uncommon good sense into the  debate driven generally by irrational panic and flawed statistics over how the criminal justice system should deal with sex offenders.
      As a First Amendment case, the court had no difficulty whatsoever in ruling North Carolina's social media ban fatally overbroad. But Justice Anthony M. Kennedy's opinion for a five-justice majority charted a new path for the First Amendment by declaring social media to be the 21st century equivalent of the free speech-protected public square. Banning sex offenders from such sites as Facebook and Twitter prevented them from "the legitimate exercise of First Amendment rights," he wrote.
      The ban also made no sense as penology, Kennedy explained. "Even convicted criminals — and in some instances especially convicted criminals — might receive legitimate benefits from these means for access to the world of ideas," he wrote, "in particular if they seek to reform and to pursue lawful and rewarding lives."
      As with so many free-speech cases, the government's challenged policy was blatantly irrational in the specific case before the court. Lester Gerard Packingham Jr. —  known to friends and family as J.R. — was no sexual predator even when he pleaded guilty to indecent liberties with a 13-year-old back in 2002. And the Facebook post that landed him in legal trouble again in 2010, long after his probation had ended, was no sexual come-on but merely a playful celebration of having beaten a traffic ticket.
      North Carolina had been one of the first of the states back in 2008 to craft a law aimed at preventing the admittedly common use of social media for sexual abuse and victimization of minors. Within the span of a few years, most of the states had adopted disclosure as a preventive policy. Sexual offenders, registered with the state under laws on the books throughout the country, were required to disclose their Internet identifiers to authorities as a safeguard of sorts against improper behavior on the 'Net. Some of those laws were upheld in court, others struck down.
      The Tarheel State was one of two states to adopt a social media ban instead. Louisiana's law was struck down in 2012. The North Carolina law, known as section 202.5, made it a felony for a registered sex offender to access a commercial social media web site if he knew it allowed use by minors for personal profiles and two-way communication. Significantly, the ban applied to any use of the site, not specifically to posts aimed at or communications with minors. As Packingham's lawyer told the Supreme Court during oral arguments, he risked violating the law for doing nothing more than responding on Facebook to any of the posts discussing his case.
      Packingham was a 21-year-old college student when he pleaded guilty to the reduced sex offense count back in 2002. The facts of the case were kept off public records, but the judge evidently viewed the offense as minimal. He suspended Packingham's six- to eight-month prison sentence. "No one ever thought he was a pedophile," according to David Goldberg, the Stanford law clinic instructor who represented Packingham at the Supreme Court.
      Convicted in 2012 under section 202.5, Packingham again was given a suspended sentence. He had challenged the law as unconstitutional before trial in tandem with a second defendant, Christopher Johnson, charged under the law. Johnson told the court that he had been fired from an IT consulting job because it required access to social media. Goldberg said that Packingham has used his graphic design degree to help with his church's web site but that the social media ban has held him back in career terms.
      The sex offender policies adopted over the past two decades have to some extent been based on fake data. Law enforcement officials, lawmakers, and judges all the way up to the Supreme Court have accepted as scientific truth a false myth that sex offenders have a high degree of recidivism — that is, repeat offenders.
      The myth appears to be traced back to an article in a non-peer reviewed popular magazine, but has shown up in, among other places, Supreme Court opinions. The myth is so strong that Justice Sonia Sotomayor, no dupe for law enforcement, referred to it as fact during arguments in Packingham's case. Scientific studies reviewed in a Justice Department report in 2001 found relatively low rates of recidivism among sex offenders compared to other offenders. The studies indicated a range between 10 percent and 29 percent for child molesters with female victims and between 13 percent and 40 percent for child molesters with male victims.
      Tellingly, the North Carolina legislature approved section 202.5 unanimously with support from the then Democratic attorney general and the then Democratic governor. At the Supreme Court, none of the justices found the law constitutional and five of them rejected it as senseless public policy. Goldberg said that Packingham's immediate response when he heard the news of the decision was a single word: "Hallelujah." Amen.

Sunday, July 9, 2017

Gorsuch 'More Conservative' Than Scalia in First Months

      Supreme Court Justice Neil M. Gorsuch celebrated the Fourth of July by joining the holiday parade in the small Boulder County community of Niwot. Gorsuch "worked the parade like a senator, not a sitting Supreme Court justice," according to a reporter for the left-leaning news site Rewire.
      As Colorado's second Supreme Court justice in history (after Byron R. White), Gorsuch was welcomed by most in the crowd as home boy made good, but dissent was heard. One spectator greeted Gorsuch by mocking his appointment to a seat that, by all historical practice, rightfully belonged to Merrick Garland. Martha McPherson's sign stated her opinion in all caps: "USURPER GORSUCH SUCH A SHAM."
      Back in Washington, Gorsuch was also drawing attention as court watchers and advocates and experts across the ideological spectrum assessed the first three months of a high court career that could last 30 years. Advocates on the left and the right appeared to agree on one point: Gorsuch could be on the way to being more conservative than his lionized predecessor, Antonin Scalia.
      The New York Times editorial board was still referring to Gorsuch's seat as "stolen" as conservatives chortled over the appointment. In an op-ed for The Wall Street Journal, the conservative legal academics John Yoo and Sai Prakash said that conservatives "hit the jackpot" with the Senate Republicans' gamble to block Garland's confirmation.
      Yoo, the Berkeley law professor who wrote the infamous torture memo while with the Bush Justice Department, and Prakash, a U-Va. law professor, described Gorsuch as a "robust originalist," more like Clarence Thomas than the self-described "fainthearted originalist" Scalia. They saw him as part of a conservative bloc with Thomas and Samuel A. Alito Jr. that would "expose" the "directionless middle" occupied by the others in the Republican-appointed majority, Chief Justice John G. Roberts Jr. and associate justice Anthony M. Kennedy.
      Gorsuch was confirmed to the life-tenured seat by a bitterly partisan 54-45 vote in the Senate, the fourth closest margin ever for a confirmed justice. The narrow vote caused Gorsuch no hesitation at all in staking out distinctively conservative positions on the bench or in his votes and opinions.
      Gorsuch "hit the ground running," remarked Jonathan Adler, a conservative professor at Case Western Reserve Law School in Cleveland. Michael Gerhardt, a liberal law professor at the University of North Carolina in Chapel Hill, agreed. "He's probably off the mark faster than people might have anticipated," Gerhardt said.
      In fact, Gorsuch was unusually active in his first day on the bench, with 22 questions in the first of three arguments on April 17, according to Adam Feldman, a postdoctoral fellow at Columbia Law School and creator of the blog Empirical SCOTUS. Gorsuch asked 12 questions in the next case, but slowed down somewhat in the rest of the April calendar, according to Feldman's count. Still, with 108 questions in 13 hour-long arguments, Gorsuch's average of eight questions per argument appears to be higher than similar counts for other newly-arrived justices.
      In that very first argument, Gorsuch began to display what Gerhardt calls his "little bit of arrogance" — in that case toward the lawyers and later in his opinions toward his fellow justices. The issue in Perry v. Merit Systems Protection Board was how to apply a devilishly complicated federal statute on appeals in federal employee discipline cases. With the government's lawyer struggling, Gorsuch tartly interrupted at one point: "'Wouldn't it be a lot easier if we just followed the plain text of the statute?''
      Gorsuch dissented from the eventual 7-2 decision in the case, convinced that Justice Ruth Bader Ginsburg had rewritten rather than scrupulously followed the law. In dissent, he lectured his Ivy League-graduate colleagues as though they were in a ninth-grade civics class. "If a statute needs repair," Gorsuch wrote, "there’s a constitutionally prescribed way to do it. It’s called legislation."
      Gorsuch's vote helped produce conservative 5-4 decisions in two of the cases from the April calendar: a death penalty case from Texas, Davila v. Davis, and a class actions case, California Public Employee Retirement System v. ANZ Securities. He was among four dissenters in a second death penalty case, McWilliams v. Dunn, where Kennedy provided the fifth vote for the liberal bloc. 
      Apart from the votes, Gorsuch wrote or joined opinions to the right of the other conservatives. In Trinity Lutheran Church v. Comer, Gorsuch joined with Thomas in calling for allowing more government aid to church-affiliated schools than Roberts envisioned in his famous footnote 3. In Weaver v. Massachusetts, Gorsuch joined Thomas in a concurrence to question the recent precedent requiring jury selection in criminal trials to be open to the public. And he wrote separately in the unanimous decision in Maslenjak v. United States to complain that Justice Elena Kagan should not have offered advice on how to apply the decision in lower courts.
      Gorsuch ended the term by going farther to the right. He joined with Thomas and Alito in voting to uphold President Trump's travel ban in its entirety. He wrote the dissenting opinion for the threesome objecting to the summary decision in Pavan v. Smith that married same-sex couples are entitled to have both parents' names listed on a child's birth certificate, just like opposite-sex couples. And, along with Thomas, he chided the majority for refusing in Peruta v. California to take up a Second Amendment challenge to California's limits on going armed outside the home.
      All in all, Yoo and Prakash could not have been more pleased. Gorsuch, they wrote, " has lived up to supporters’ greatest hopes and critics’ worst fears." SCOTUSblog publisher Thomas Goldstein says Gorsuch "brings restored conservative energy" to the court and predicts, in the fact of the historic degree of unanimity during the past term, "historically high fractiousness" during the new term to open in October.