Sunday, July 14, 2019

Closing the Door to Establishment Clause Challenges

      The Supreme Court's eventual decision to leave a 40-foot Christian cross standing on government land as a memorial to U.S. soldiers killed in World War I was a foregone conclusion once the justices agreed to hear the case. Church-state separationists braced themselves for defeat with hopes that the Court would inflict as little damage as possible on the constitutional precedents limiting government support for religious displays and religious institutions.
      With the result fully anticipated, experts and advocates on both sides of the issue largely overlooked the damage that the ruling actually does to potential Establishment Clauses in the future. Taking language in the various opinions at the broadest sweep, the ruling in American Legion v. American Humanist Association [June 20] virtually closes federal courts to Establishment Clause cases by leaving potential plaintiffs with no grounds to object in the mine run of cases.
      Justice Samuel Alito's opinion in the case stops just short of formally overruling the much maligned decision in Lemon v. Kurtzman (1971) that set up a three-part test for judging government practices or policies alleged to amount to establishment of religion. In its place, Alito's opinion appears to prohibit only government practices that amount to coercion and gives a constitutional pass to longstanding government actions—as, for example, the 90-year history of the Peace Cross on a centrally located traffic island in suburban Bladensburg, Maryland.
      The Lemon test, adopted with only one justice dissenting, directed courts to determine whether a government practice had a secular purpose, whether a reasonable observer would see it as an endorsement of religion, and whether it resulted in government entanglement with religion. The test has been much maligned through the years, but seemingly only because the second prong actually put some teeth into what church-state separationists views as the religious neutrality promised by the Establishment Clause.
      Applying the Lemon test not at all strictly, the Bladensburg Peace Cross fails, just as the federal appeals court for Maryland ruled in the decision that the Supreme Court reversed. Anyone living in or visiting Bladensburg surely would view an immense cross standing on government property at a gateway to the city as an endorsement of the Christian faith. Try to imagine the monument standing on the grounds of the U.S. Capitol and try to think of it as something other than a singular endorsement of Christianity among any other religious faiths.
      Alito cast the cross as a universal symbol for those lost in World War I, but he overlooked not only the Star of David tombstones for Jewish soldiers but also the actual history of the monument. The Christian pastors who spoke at the dedication in 1925 viewed it in exactly those terms, as symbolic of Jesus' sacrifice at Calvary, which they likened to the sacrifices that fallen soldiers made in defense of liberty worldwide.
      In a separate opinion, Justice Neil Gorsuch drew an important corollary from what he called the Court's decision to scrap Lemon. Gorsuch found it wrong for the Court, in a string of prior decisions, to have allowed Establishment Clause plaintiffs standing based on what he called their status as "offended observers" under Lemon's second prong. "With Lemon now shelved," he wrote, "little excuse will remain for the anomaly of offended observer standing . .  ."
      The individual plaintiffs in the case—one Bladensburg resident and two members of the American Humanist Association or an affiliated group -- would have been knocked out of the case on Gorsuch's premise, perhaps the humanist association itself as well. The government entanglement with the Peace Cross was relatively minimal: a six-figure expenditure by the Maryland-National Capital Park Commission over the years to maintain the monument.
      An earlier Roberts Court decision would cut the legs off an Establishment Clause challenge based solely on the expenditure of government funds. It was Alito who wrote for the Court in a decision, Hein v. Freedom From Religion Foundation (2007), that virtually eliminated taxpayer standing to object to government expenditures to promote or endorse religion generally or one faith over another. The 7-2 ruling in that case gave the Bush administration free rein to reprogram White House expenditures to a newly created Office of Faith-Based and Community Initiatives tasked with promoting faith-based groups nationwide.
      In the new decision, Alito found the Peace Cross unobjectionable based in large part on "its historical importance." As constitutional logic, this reasoning would have undercut any number of important Supreme Court decisions. Imagine if the Brown v. Board Court had given racial segregation a constitutional pass because of the long-standing acceptance of the practice. School-sponsored classroom prayer would also pass muster under what Justice Brett Kavanaugh characterized as Alito's "history and tradition" test unless a court viewed the government-supported conformity as coercive.
      Oddly, Alito revives the idea of the "offended observer" as an additional reason for leaving the Peace Cross undisturbed. Many people, he argued, would view "destroying or defacing the Cross" as "aggressively" hostile toward religion, not neutral. In many other settings, the Court has correctly disregarded the risk of public criticism in weighing its responsibility to enforce the Constitution against prevailing public sentiment.
      The muted reaction to the Court's decision included a statement from the American Civil Liberties Union calling it a "blow against the separation of church and state." But even the ACLU failed to remark on the new barriers the decision appears to erect to enforcing the Establishment Clause.

Saturday, July 6, 2019

On Census, Trump Eyes Executive Order Amidst Chaos

       President Trump threw a tantrum on Twitter after the Supreme Court's decision [June 27] that blocked the administration for now from including a citizenship question as part of the 2020 decennial census. Chief Justice John G. Roberts Jr., hardly a critic of executive branch power, rejected in Department of Commerce v. New York what he called the "contrived" explanation that Commerce Secretary Wilbur Ross gave for including the question in the census form distributed to all U.S. households.
      The Census Bureau, along with Justice Department lawyers, responded to the decision a few days later [July 2] by instructing printers to start printing the questionnaire without the citizenship question. The government had told lower courts and the Supreme Court that the "absolute" deadline for starting the mammoth print job was June 30. Nevertheless, Trump falsely called the announcement "fake news" in a tweet and insisted the administration was still working on a way to include the citizenship question.
      Trump then gave his tweet substance by instructing the Justice Department to come up with some way to get the question in. Justice Department lawyers had to scramble their Fourth of July plans as they went before two federal judges, tails between their legs, to explain the new instructions from their client. By close of business Friday [July 5], the government's new rationale for the citizenship question had yet to emerge, but Trump had raised the possibility of circumventing the courts with an executive order to instruct the Commerce Department to put the question in after all.
      Ross's contrived explanation for the citizenship question, rejected by Roberts and the four liberal justices, rested on a letter from the Justice Department formally requesting a citizenship question supposedly to aid enforcement of the Voting Rights Act. The letter came only after Ross personally asked then-Attorney General Jeff Sessions to get a letter that he could use to justify the question — a letter that Roberts later dismissed as "pretext."
      Ross was forced to contrive an explanation because there is no legally or statistically legitimate reason to include the citizenship question apart from the illegitimate political motive to discourage responses from people living in the United States who are not citizens or are uncertain of their citizenship status. The Constitution requires an "actual enumeration," not an incomplete count. Experts at the Bureau of the Census, part of the Commerce Department, countered Ross's insistence on adding the citizenship question with documented studies showing the question could result in a seven-figure undercount, primarily among Hispanics and non-citizens.
      The Census Bureau answered Ross's continued pressure by showing that a citizenship question would do more than depress the response rate. It would also produce "less complete and accurate" data, they warned: some non-citizen households might lie; others might be mistaken about their status. A better option, the statistical experts advised, would be to match census responses with administrative records already maintained by the government showing citizenship status.
      In a separate opinion written for the four liberals, Justice Stephen G. Breyer related all this information in concluding that Ross's decision was "arbitrary and capricious," administrative law jargon for no good. Roberts would not go that far. Instead, he stopped just short of calling Ross a liar by stating that the secretary's explanation was "incongruent with what the record reveals about the agency's priorities and decisionmaking process."
      Trump further contradicted the administrative record on Friday [July 5] with a new explanation for the citizenship question. "You need it for Congress for districting,” he told reporters in an on-the-run question-and-answer session. “You need it for appropriations — where are the funds going? How many people are there?" That answer in effect validated the allegations by plaintiffs in the two cases that the citizenship question was aimed at reducing the population count in areas with substantial Hispanic communities, all for the purpose of reducing representation in Congress and cutting federal funds to some extent.
      The Supreme Court's decision came in the government's appeal of a decision by U.S. District Court Judge Jesse Furman in a case initiated by immigrant rights groups and joined by New York and other states. A federal judge in Maryland, Judge George Hazel, had similarly ruled against the citizenship question. Hazel added to the government's legal problems on Friday by deciding to expand the case before him into a racial discrimination case. Furman and Hazel had both rested their rulings on administrative law grounds without finding that the administration was intentionally seeking to reduce the population count of minority groups.
      In New York, Furman issued an order noting that the government had acknowledged that his injunction "remains in place" and that it had promised to notify the court before taking any steps to insert the citizenship question. With that said, Furman found no need for a status conference in the case pending further information on the proceedings before Judge Hazel. In Maryland, plaintiffs' attorneys were urging Hazel to issue an extraordinary order prohibiting the administration from saying anything to suggest that the census would include a citizenship question.
      The chaotic maneuverings were aptly described by election law expert Rick Hasen as "amateur hour," but some cynical observers saw a method to the administration's madness. With enough confusion, the response rate among Hispanic communities might be depressed even without the citizenship question. And the question remained whether the administration could get the case back before the Supreme Court and persuade Roberts in the end to go along after all.

Sunday, June 30, 2019

Republican Justices Boost GOP on Gerrymandering

      The Supreme Court's stunning decision to bar federal courts from hearing suits that challenge political gerrymandering whether practiced by Republicans or by Democrats has the misleading appearance of political evenhandedness. In a legal coup executed by five Republican-appointed justices, Chief Justice John G. Roberts Jr. slammed the federal courthouse door shut last week [June 27] to voters of any political stripe who object to having their votes count for nothing through the political skullduggery of partisan redistricting.
      Roberts took pains in announcing the Court's decision in Rucho v. Common Cause to make clear that the 5-4 majority was turning aside not only Democrats' challenge to a Republican gerrymander in North Carolina but also a challenge by Republicans to a Democratic gerrymander in blue state Maryland.
      History refutes any implication of political evenhandedness on the part of the Republican justices. Through three-and-a-half decades of political gerrymandering cases, all of the cases to reach the Court except Maryland's Lamone v. Benisek have been challenges to Republican-drawn district maps. In each of those cases, Republican mapmakers were credibly shown to have drawn congressional or legislative districts primarily for the purpose of helping elect Republicans at Democratic voters' expense: Indiana in Davis v. Bandemer (1985); Pennsylvania in Vieth v. Jubiler (2004); Texas in League of United Latin American Citizens v. Perry (2006); and Wisconsin in Gill v. Whitford (2018).
      Current political conditions reinforce the point that Republicans will benefit from federal courts being ordered to stay out of political gerrymandering cases. At present, Republicans control legislatures and gubernatorial offices in 20 states, while Democrats lag behind with unified control in only 12 states. More to the point, Republicans have been more aggressive in drawing district lines for political advantage in red states than Democrats have been in blue states.
      Indeed, Democrats and liberal advocacy groups have provided much of the political muscle behind the efforts that Roberts commends in his decision to create bipartisan or nonpartisan commissions to draw district lines. Thus, as political journalist David Freedlander remarked on Twitter, the likely effect of the ruling is for Republicans in red states to respond by "gerrymandering Democrats to a fare-thee-well"  and for Democrats in blue states to respond "by setting up a nonpartisan redistricting commission."
      Even in the two instant cases, North Carolina Republicans were guilty of a more serious offense than the Maryland Democrats. Partisan motivations were not disputed in either case. Maryland's Democratic governor Martin O'Malley acknowledged the new congressional map was designed to eliminate one of the state's two Republican House members. In North Carolina, state Rep. David Lewis, one of the chief legislative mapmakers, stated that his map was designed to preserve the Republicans' existing 10-3 edge in U.S. House seats.
      Lewis made no secret of his motivation. "I think electing Republicans is better than electing Democrats," he said. He offered the 10-3 map, he explained, only because he found it impossible to draw a map that would reliably elect 11 Republicans in a state closely divided between Republicans and Democrats.
      Roberts' answer to such political chicanery is to throw up the Court's hands and leave voter lambs to the mercies of political wolves. Reviewing the cases, Roberts wrongly concludes that history is destiny: the Court's failure in four cases to settle on a judicially manageable standard for gerrymandering cases proves, he says, that there is none.
      Writing for the Court's four Democratic appointees, Justice Elena Kagan followed Roberts' hand-down with an extraordinary fifteen-minute dissent, her voice cracking at times with emotion and as she said at the end "deep" sadness. She opened with a dramatic flair. "For the first time ever," she said, quoting her opening passage, "this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities." She answered Roberts by noting that lower federal courts have managed to rule on gerrymandering cases even if the Court's conservatives think they cannot.
      To be sure, it is not the first time that the Court has left a constitutional violation unremedied in the area of reapportionment and redistricting. To its lasting discredit, the Court in 1946 rejected a federal court suit by voters in Illinois seeking to force the state legislature to reapportion congressional districts as required by federal law to have equal populations. Justice Felix Frankfurter provided the pivotal vote in the 4-3 decision in Colegrove v. Green by urging his colleagues to stay out of what he called a "political thicket."
      Frankfurter is remembered today, unfavorably for the most part, as hard to get along with and indifferent to violations of constitutional rights. He remained on the Court long enough to see Colegrove overturned by a 6-2 decision in the seminal reapportionment case, Baker v. Carr (1962).  Chief Justice Earl Warren is today far better remembered and more honored than Frankfurter for leading the Court into remaking the political landscape by entrenching a seemingly obvious democratic principle: one person, one vote.
      After retiring, Warren claimed the Baker v. Carr line of decisions as the most important accomplishment of his 17 years as chief justice. Roberts, at age 65 and perhaps less than halfway through what could be a 30-year tenure, already ponders his legacy. This decision will be part of a legacy that mocks Roberts' insistence that the Court has no Republican justices nor Democratic justices and that, equally, mocks the promise carved in marble above the entrance to the Supreme Court building: "Equal Justice Under Law." 

Sunday, June 23, 2019

Thomas Declares War Against Stare Decisis

       Clarence Thomas has been taking pot shots at Supreme Court precedents ever since he joined the Court 28 years ago, but now has declared war against the legal doctrine known as stare decisis that calls for following precedents except in special circumstances.
       Thomas took the gloves off in a separate 17-page opinion last week [June 17] as he joined the Court in declining to overturn the so-called dual sovereignty doctrine, which permits a state and the federal government to prosecute a defendant for the same criminal episode without violating the Double Jeopardy Clause.  The 7-2 decision in Gamble v. United States proved to be a disappointment to the various critics of the dual sovereignty doctrine, including criminal defense lawyers and civil liberties groups on both sides of the political aisle.
       Thomas himself had previously been one of those critics, but he opened his concurring opinion by disavowing his past view. "I agree," Thomas wrote in a newfound realization, "that the historical record does not bear out my initial skepticism of the dual-sovereignty doctrine."
       Some other judge with a less exalted view of his own wisdom might take this episode as a lesson in judicial modesty, but not Thomas. Instead, he proceeded to reject a well established doctrine endorsed by all of the other justices, including the two newest justices, Neil Gorsuch and Brett Kavanaugh, in their recent Senate confirmations.
       In Thomas's view, the Supreme Court is constitutionally bound to give a precedent no weight whatsoever if the prior decision is, in his 20-20 hindsight, "demonstrably erroneous." Among those erroneous decisions, in Thomas's view, are such landmarks as the abortion rights decision in Roe v. Wade (1973) and the more recent marriage equality decision in Obergefell v. Hodges (2015).
       Thomas himself pledged allegiance to stare decisis in his Senate confirmation hearing back in 1991. He told the Democratic-majority Senate Judiciary Committee that he had no agenda to overrule precedent if confirmed. That promise was enough to help persuade 11 Democrats to join in the 52-48 vote to confirm Thomas despite the widespread assumption that he would vote to overrule Roe v. Wade at his first opportunity if confirmed.
       In fact, Thomas argued for overturning a prisoner rights' precedent in a case argued in his full month on the Supreme Court. Later in the 1991 term, he joined with three other so-called conservatives in the dissenting opinion in Planned Parenthood v. Casey that forthrightly called for nullifying constitutional protection for reproductive rights nationwide.
       The author of that dissenting opinion, Chief Justice William H. Rehnquist, is often quoted for his observation that stare decisis is "not an inexorable command." Rehnquist made that remark as the author of the 6-3 decision in Payne v. Tennessee (1991) that overturned nearly brand-new precedents to allow victim impact statements in death penalty cases. Two new justices, Anthony Kennedy and David Souter, provided the pivotal votes for scrapping the prior decisions.
       The adherents to stare decisis agree on one proposition at least: a prior decision should not be overturned merely because of a change in personnel at the Supreme Court. Instead, as set out by Justice Antonin Scalia for a 5-4 majority in Montejo v. Louisiana (2009), the Court should consider overruling a prior decision based on "the workability" of the prior standard, "the antiquity of the precedent, the reliance interests stake, and of course whether the decision was well reasoned."
       Scalia once remarked that, in contrast to his own view, Thomas did not really believe in stare decisis. In this new opinion, Thomas drops all pretenses and issues what amounts to a call to arms for conservative activists to take aim at prior decisions willy-nilly
       In his confirmation hearing in 2005, Chief Justice John G. Roberts Jr. famously remarked that overturning prior decisions amounts to a "jolt to the system." In Payne, Rehnquist touted stare decisis as promoting stability, predictability, and respect for the law.
       Thomas begs to differ. "[T]he Court's stare decisis doctrine," Thomas writes now, has the effect of "giving the veneer of respectability to our continued application of demonstrably incorrect precedents." The multi-factor "special circumstances" test, Thomas argues, "invites arbitrariness into judging."
       The current, universally acknowledged approach to stare decisis might have made sense, Thomas now argues, in a common law system that relied primarily on judges to develop the law. "Our federal system is different," Thomas explains, because the Constitution limits the Court's role to "faithfully interpreting laws enacted by [the political] branches." Thomas goes even further by quoting the revered English jurist Blackstone as himself calling to disregard precedents if "flatly absurd or unjust."
       The precedents that Thomas has found unworthy in the past include roughly three dozen that legal commentator Jason Rylander listed in a compilation in 2004. The list would be longer today. Three days after his Gamble concurrence, Thomas went so far as to call explicitly for overruling the 33-year-old precedent in Batson v. Kentucky (1986) that prohibits prosecutors from racial discrimination in jury selection. Thomas's call came in a dissenting opinion in Flowers v. Mississippi [June 21] that Justice Neil Gorsuch joined except for the attack on the prior ruling.
       Thomas's disquisition on stare decisis, if published as a law journal article, would have attracted some attention of course. As an opinion in U.S. Reports, however, the impact may be greater by encouraging various conservative advocacy groups to further politicize federal courts and the Supreme Court itself to the long-term detriment of law and justice in the United States.

Sunday, June 16, 2019

For Criminal Justice Reform, Go Local

      Voters in two suburban counties outside Washington, D.C., joined the growing criminal justice reform movement last week [June 11] by ousting two longtime prosecutors in favor of candidates who promised if elected to make fundamental changes in prosecutorial policies. Subject to Virginia's off-year general elections in November, Parisa Dehghani-Tafti and Steve Descano will join the growing number of criminal justice reformers elected around the nation as local prosecutors, notably in such major metropolitan areas as Chicago, Philadelphia, and Orlando, Fla.
      Dehghani-Tafti, a former public defender who had worked on exoneration cases for the Mid-Atlantic Innocence Project, won 52 percent of the vote in defeating two-term incumbent Theo Stamos for the Democratic nomination for commonwealth attorney in the close-in suburban jurisdiction of Arlington County. Steve Descano, a former federal prosecutor, won 51 percent of the vote to oust three-term incumbent Ray Morrogh in the well-to-do outer suburban jurisdiction of Fairfax County.
      Campaigning in Democratic strongholds, neither Stamos nor Morrogh presented themselves as old-style, law-and-order prosecutors. Stamos took credit for reducing the incarceration rate in Arlington County, while Morrogh campaigned under the slogan: "Effective. Fair. Progressive." Still, the Washington Post's story viewed the results as bellwethers: "Voters endorse new mandate on criminal justice," the headline read.
      Miriam Krinsky, executive director of the Los Angeles-based advocacy group Fair and Just Prosecution, estimates that more than three dozen reform-minded prosecutors have been elected in recent years. In comments to the Post, Krinsky described the election results as evidence of "a growing new normal in the world of prosecutions." More and more communities and more and more voters are "tired about the old thinking in the criminal justice system," Krinsky explained.
      Andrew Cohen, a senior fellow at the Brennan Center for Justice who also edits the daily report on criminal justice for the Marshall Project, similarly sees a trend in favor of reformers in local prosecutor races. "Clearly, a big part of the criminal justice reform movement over the past five years has been directed at these races as people realize how powerful local prosecutors have become at the local and state levels," Cohen says.
       Cohen cautions, however, that elections cannot guarantee thoroughgoing reform of themselves. Several of the high-profile reform-minded prosecutors, such as Larry Krasner in Philadelphia, Kimberly Foxx in Chicago, and Aramis Ayala in Orlando, encountered opposition as they sought in office to turn away from punitive, sentence-maximizing prosecution policies.
       Ayala, who is African American, declared her opposition to the death penalty upon taking office in 2017 after ousting the incumbent state's attorney in Florida's fifth most populous county the previous year. Florida's Republican governor, Rick Scott, responded by reassigning capital cases from Ayala's office to another state prosecutor — a move that the Florida Supreme Court upheld on a 5-2 vote. Politically battered, Ayala announced late last month [May 28] that she will not seek re-election in 2020.
       Krasner, a former federal public defender and longtime criminal defense and civil rights lawyer, won election as district attorney in Philadelphia in 2017 in a campaign that drew opposition from the city's police union. In office, Krasner stopped prosecuting marijuana possession cases and instructed prosecutors to stop seeking cash bail for defendants arrested for misdemeanors or nonviolent felonies. Some judges overruled some sentence recommendations as too lenient and resisted Krasner's initiative to shorten probation sentences.
       Kimberly Foxx, who is African American, won election as Cook County state's attorney in 2016 after having helped craft a criminal justice reform agenda as chief of staff to the Cook County Board president. In office, she has promoted bail reform by instructing prosecutors to agree to release on recognizance where appropriate and has raised the threshold for prosecuting theft offenses as felonies. The local police union has criticized Foxx's policies as soft on crime.
      With more than 2,400 local and state prosecutors nationwide, the three dozen or so reformers elected in recent years according to Krinsky are far outnumbered when district attorneys gather for conventions and training sessions. But Krinsky's group is promoting a comprehensive reform agenda under the title "21 Principles for 21st Century Prosecutors" that calls for, among other changes, de-escalating charging policies, making plea bargaining more transparent, and reducing use of cash bail.
      Krinsky acknowledges that the agenda "hasn't taken hold everywhere," but she believes that a "new paradigm" is beginning to form. "We are seeing candidates commit to the principles and commit to implementing them in office," she says.
      Listed twelfth among the 21 principle is an exhortation to "address racial disparity," which the report says "exists at every stage of the justice system." The audience for that recommendation is overwhelmingly white, according to a recent study. Among 2,437 elected local and state prosecutors in office in 2014, fewer than 5 percent were African American, according to the study.
       African Americans are also underrepresented among federal prosecutors, according to my review of the current officeholders. Among 93 U.S. attorneys nationwide, Louis Franklin, U.S. attorney for the middle district of Alabama, appears to be the only African American; my count found four Asian Americans and three Hispanics, all the others white.
       Congress and President Trump are also on board the criminal justice reform movement, at least to some extent. Trump was taking unwarranted credit last week [June 13] for the First Step Act, the federal sentence-reducing law he signed in December 2018 after it moved through Congress with bipartisan support. Among other provisions, the law retroactively reduced crack-related sentences for 1,150 offenders: a significant even if modest step toward moving away from "Incarceration Nation."

Sunday, June 9, 2019

On Supreme Court Reform, No Consensus

      Credit law professors Daniel Epps and Ganesh Sitaraman with thinking outside the box to try to save the Supreme Court from the historically unprecedented degree of politicization of the past several decades. But their offsetting proposals to depoliticize the Court are respectively needlessly complex or mind-bendingly unsettling in comparison to a potentially workable solution already adopted in many states.
      Epps, an associate professor at Washington University in St. Louis, and Sitaraman, a professor at Vanderbilt University in my former home town of Nashville, Tenn., have gained wide attention by detailing their two proposals in an article for the Yale Law Journal now being circulated on-line in draft form. Epps and Sitaraman go way beyond the other pending reform proposals, such as adding justices to restore balance on the Court and enacting term politics to de-politicize confirmations. Instead, they open their article with a blunt demand for "a complete rethinking of how the Court works and how the Justices are chosen."
      The two professors call their proposals, respectively, the Balanced Court and the Lottery Solution. The first of the proposals borrows the requirement for political balance in appointments to federal regulatory agencies: the Supreme Court, under this proposal, would consist of 10 justices, five from each of the two major political parties, who would then select by unanimous or supermajority vote five more from the pool of federal appellate judges to sit with them two years later for a period of one year.
      The Lottery Solution would go one step further by creating the "one Supreme Court" as specified in the Constitution by randomly selecting nine justices from the pool of federal appellate judges to sit for two-week periods. For good measure, the professors pair this proposal with the oft-discussed idea of a supermajority requirement to overturn a federal statute  not by a 6-3 vote as generally proposed in the past but by an even stronger 7-2 vote.
      These proposals were among others discussed in an opening plenary session when legal progressives gathered in Washington last week [May 7] for the annual convention of the American Constitution Society (ACS). Attendees were greeted outside the Capital Hilton by earnest ACS members handing out cards with the printed message: "It's Time to Unite Around Supreme Court Reform." The card listed the three narrower reforms: expanding the Court, enacting term limits, and adopting a code of ethics for the justices.
      Before considering the various proposals, it is necessary to explain how what is widely described as the Supreme Court's crisis of legitimacy has come to pass. Epps and Sitaraman list several factors, but the most important and chronologically the first is the overt politicization of the Court by a succession of Republican presidents and over time the Republican Party writ large.
      For the last half century, five Republican presidents — all except Gerald Ford  have used Supreme Court appointments deliberately to politicize the Court, unsettle precedent, and pursue a partisan conservative agenda. Democratic presidents, Bill Clinton and Barack Obama, have not responded in kind.
      To be sure, the four Democratic-appointed justices  Ginsburg, Breyer, Sotomayor, and Kagan — can all be described as liberals or progressives. But all of them with the possible exception of Sotomayor commanded wide support in legal and judicial circles before their appointments as consensus seekers rather than doctrinaire ideologues.
      Ginsburg and Breyer won Senate confirmation with 96 and 87 votes respectively, Sotomayor and Kagan each with more than 60. Compare that to the under-60 vote confirmations of Thomas, Alito, Gorsuch, and Kavanaugh. In a fair process, President Obama's blocked nominee Merrick Garland would likely have won confirmation  thus, McConnell's decision to deny him any hearing whatsoever.
      Indeed, Supreme Court watchers who do the numbers have shown that none of the four current Democratic justices is as "liberal" as the most "conservative" of the Republican appointees: notably, Rehnquist, Scalia, Thomas, and now Alito. The two Trump appointees, Gorsuch and Kavanaugh, can be expected to be equally conservative after being blessed as Supreme Court nominees by the ultraconservative Federalist Society.
      Epps and Sitaraman define the current crisis as "the rise of a Court polarized on party lines." They cite as additional factors the deeply divided political environment and the rise of competing schools of legal thought  think, originalists versus living constitutionalists  with opposing views corresponding to the two major political parties. The combination of these factors, in effect, lead Epps and Sitaraman to despair of any possible reforms other than a complete transformation of the Court as we know it.
      Thus, they give no consideration to the kind of nonpartisan merit selection systems adopted in a number of states, including my home state of Tennessee. At the federal level, one reform  outlined here for the first time as far as I know  could be the creation of a nine-member Supreme Court nominating commission, with two members each appointed by the party leaders in the House and the Senate and perhaps a ninth by the president.
      The president, under this plan of mine, could nominate as justice only a candidate deemed qualified by a two-thirds supermajority of the commission on the basis of professional qualifications, judicial temperament, and legal views. Epps and Sitaraman, I suppose, would view this idea as ineffective in reducing the now hard-wired politicization of the Supreme Court confirmation process.
      The ACS panel produced no consensus around any of the reform proposals. Epps and Sitaraman reject expanding the Court as inviting a tit-for-tat response in the future; they reject term limits as more likely to increase rather than reduce the politicization of the confirmation process. The lack of consensus on the legal left likely dooms any of the reforms, especially if Republicans think they will continue to have the upper hand in these debates. Thus, the message for Democrats and legal progressives is simple and direct: Elections have consequences; the path to Supreme Court reform begins and ends at the ballot box.

Sunday, June 2, 2019

At Harvard, Defending Truth in Age of Trump

      Angela Merkel, chancellor of Germany and leader of the Free World since President Donald Trump abdicated that role, came to Harvard University last week [May 30] to accept an honorary degree and to plead with Americans to rededicate ourselves to among other principles "the maxim of truth."
      Harvard's founders adopted truth — in Latin, Veritas — as the school's motto in 1640, four years after Pilgrim settlers founded the college in a former cow yard in a sylvan wilderness. The Harvard shield, with the letters of veritas superimposed on three opened books, adorns interior and exterior walls throughout the campus in what is now the 21st century metropolis of Cambridge, Massachusetts.
      Truth was on the minds of several of the speakers during Harvard's week-long "festival rites," to borrow the phrasing from Fair Harvard. Trump, a member of Harvard's extended family through his government major son-in-law, Jared Kushner, A.B. 2003, was not in Cambridge, but he was the unnamed target of thinly veiled swipes from Merkel and several other speakers for his ongoing war against truth.
      Merkel, in her 14th year as chancellor but politically battered by immigration politics, embraced global multilateralism in a 35-minute speech that would have been welcomed by any of the previous post-World War II American presidents but not by the "America First" Trump. "More than ever, our way of thinking and our actions have to be multilateral rather than unilateral, global rather than national, outward-looking rather than isolationist," Merkel declared. "In short, we have to work together, rather than alone.”
      Seventy years earlier, in a very different country from today's United States, the American secretary of state George Marshall had spoken from the same spot on Harvard's campus to propose what became the Marshall Plan: the $13 billion rebuilding of war-torn Europe by a prosperous and victorious United States. Merkel listed the benefits of what she called "a transatlantic partnership based on values such as democracy and human rights," specifically "an era of peace and prosperity, of benefit to all sides, which has lasted for more than 70 years now."
      Merkel received standing ovations at several points in her speech, perhaps the longest when she called on her audience "not to describe lies as truth and truth as lies." Calling on the audience to "be honest with ourselves," the former research chemist declared, "What better place to begin than here in this place, where so many young people from all over the world come to learn, to research, and to discuss the issues of our time under the maxim of ‘truth.'”
      Two days earlier, former vice president Al Gore had the importance of truth on his mind too as he delivered a 28-minute speech to graduating seniors and their families on Class Day [May 28]. Gore, participating in his 50th class reunion along with me and 500 other class of '69 classmates, used part of the speech to preach the importance of addressing what he labeled the "existential crisis" posed by climate change caused by dumping billions of tons of carbon dioxide into the atmosphere as though it is an open sewer.
      Without mentioning Trump by name, Gore also turned to domestic politics and what he saw as the threat to democracy in the age of Trump. "Veritas— truth — is not only Harvard’s motto," Gore declared, "but it is also democracy’s shield. And the right to pursue truth is the most fundamental right of them all, and that right is now at risk."
      "And as a result," Gore went on, "freedom itself is at risk, more so now than it was 50 years ago. The system of checks and balances that has protected the integrity of our American system for more than two centuries has already been dangerously eroded.”
      Truth was also on the mind of another classmate, Robert Post, professor and former dean of a certain unnamed law school in southern Connecticut, as he reflected in a speech to former classmates on the unrest and rebellion that marks the class of '69 in history and Harvard lore. That rebellion, Post recalled, was "infused with a constructive appreciation of the authority of disciplined thought and expertise." But today, he went on, contemporary populism in the United States and elsewhere comes with "profound disdain for the authority of knowledge."
      "Apparently the infinite gush of information now cheaply and easily available on the internet has made every person an authority on every possible subject," Post said. "The upshot is that truth is no longer the product of patient inquiry and disciplinary craft. It is instead merely the opinion produced in the echo-chambers of like-minded partisans."
      Post acknowledged the reasons for the growing distrust of elite centers of knowledge such as Harvard: for example, the growing economic inequality in the United States and the loss of upward economic mobility. The distrust, he went on, can be seen in "the refusal to credit scientific judgment" in matters such as climate change and vaccinations and in the "utter disrespect of economic theories in controversies like Brexit" — or, he might have mentioned, Trump's trade wars.
      Truth, it has often been said, is "the first casualty in war." And thus it is in the uncivil war between red state Trump supporters and blue state opponents. But this son of Harvard left the campus with renewed hope for what Fair Harvard describes in closing as, "Calm rising through change and through storm."