Saturday, November 27, 2021

Vigilante Justice: Leave Policing to Police

         Three people, largely innocent, were killed at the hands of armed vigilantes: two trials, with different verdicts. The gunslinging teenager Kyle Rittenhouse was acquitted in Kenosha, Wisconsin, for killing two people and seriously injuring a third, by claiming self-defense against assailants who supposedly intended to do him harm. By contrast, the McMichel father and son were convicted in Brunswick, Georgia, of multiple counts of murder for killing the young Black jogger, Ahmaud Arbery, on Feb. 23, 2020. The death amounted to a present-day lynching, even if the lynch mob consisted only of three neighbors concerned with home break-ins and equipped with a shotgun instead of a rope.

            Despite the different outcomes, together the two episodes powerfully refute the myth that a good guy with a gun is part of the answer to crime and disorder in the streets. Policing is a demanding profession, best left to trained professionals who follow use-of-force rules laid down by publicly accountable administrators. With his military-style rifle, Rittenhouse possibly helped protect the used car lot from damage during the disorder in Kenosha, but the truth is that Rittenhouse was responsible for the only deaths during the disorder on the evening of August 25, 2020, more than a year before his eventual trial.

The two trials differed in multiple aspects. In Brunswick, Georgia, the experienced prosecutor Linda Dukinoski was sure-footed in presenting evidence and cross-examining young Travis McMichel in contrast to the occasional trial errors by assistant district attorney Thomas Binger in the Kenosha trial. Rittenhouse had the benefit of a two-million-dollar legal defense financed by a go-fund-me campaign by conservatives and gun rights partisans that allowed practice trials to rehearse Rittenhouse’s eventual testimony.

The McMichels and their neighbor, William “Roddie” Bryan, had no donors to help finance their somewhat meager defense. To the contrary, once the video of Arbery’s killing surfaced and the twice-delayed prosecution began, public opinion recognized the killing for what it was: a lynching that cried out for justice and accountability rather than celebration and legal impunity for the perpetrators.

The judges in the two cases differed as well. In Kenosha, Rittenhouse had the benefit of a judge, the 75-year-old Bruce Schroeder, who was clearly partial toward the defense and perturbed by the prosecution. In Georgia, Judge Timothy Walmsley, called in from nearby Savannah after the local judges in Glynn County all recused themselves, presided over the thirteen-day trial evenhandedly with calm and patience.

The death of Ahmaud Arbery began with racial profiling in its starkest terms. In his phone call to the local police, Travis McMichel reported “a black man running down the street,” their street so to speak in this white neighborhood. The father, Gregory McMichel, had weak grounds at best to initiate a citizen’s arrest of the Black jogger. At a distance, he could not have identified Arbery as the supposed intruder at the nearby construction site and could not have known what if anything the intruder had stolen.

 With Rittenhouse’s acquittal fresh in mind, convictions in Georgia seemed by no means certain despite Travis McMichel’s acknowledgment on cross-examination that he faced no threat from the unarmed jogger. Their defense relied weakly in the end on the premise that Arbery’s attempted flight from two armed white men amounted to proof of his guilt. With all three men convicted of multiple murder counts, court watchers credited Dukinoski with carefully downplaying the racial elements of the case for a jury that included only one Black juror in a county where African Americans comprise about one-fourth of the population. The McMichels’ defense lawyers had used peremptory challenges to excuse all of the Black potential jurors even as Dukinoski objected.

            Reacting to the Nov. 24 verdicts on the PBS NewsHour, Paul Butler, a Black law professor at Georgetown Law School and a former federal prosecutor, recalled McMichel’s initial report of “Black man running down the street” as evoking the “American history of racial violence and white supremacy and unequal justice under the law.” “You might say,” Butler continued, “that today these jurors disrupted that history.”

            “Criminal trials are not designed to be instruments of social change,” Butler added. “But sometimes verdicts reveal something about social progress. Today we learned that in Glynn County, Georgia, in a trial in which three white men hunted down and killed a Black man, those men were convicted by a virtually all-white jury. In this country that counts as progress.”

            The partisan celebration of Rittenhouse’s acquittal, on the other hand, sends a mixed message about vigilante justice. The Nov. 19 verdict is subject to reasonable doubt even if the jurors deliberated carefully over four days in weighing the evidence and applying Wisconsin’s law of self-defense. As the Washington Post rightly observed, Rittenhouse is “not a hero, but a hapless young man who armed himself with a gun he shouldn’t have had, foolishly put himself in a volatile situation where he had no business being, and ended up doing grievous and irreparable harm.”

            More legal proceedings are still pending. The McMichels and Bryan face the possibility of life prison sentences for their state court convictions and await likely trial on federal hate crime charges. Kyle Rittenhouse’s friend, Dominick Black, faces possible trial in Illinois on charges of intentionally giving a dangerous weapon to someone under age eighteen, resulting in death.

Saturday, November 13, 2021

Justices Balk at Inmate's Religious Liberty Case

            The Roberts Court has shown extraordinary solicitude toward religious freedom claims brought in such varied contexts as challenging public health restrictions on attendance at religious services, challenging in gay marriage cases the application of laws prohibiting anti-LGBT discrimination, and challenging restrictions on use of public funds for students to attend parochial schools.

            Conservative justices were far less receptive last week, however, to a Texas inmate’s plea to have his spiritual adviser present with him during his execution by lethal injection. John Ramirez asked that his pastor, Dana Moore, be allowed to pray audibly during the execution and to lay hands on him as he passes into unconsciousness.

            For many years, Texas authorities had allowed audible prayer and touch by prison chaplains hired to attend executions. In Ramirez’s case, however, Texas authorities notified his lawyer shortly before the scheduled execution that his pastor would not be allowed audible prayer or touch during the procedure.

            In imposing the new restriction, the authorities expressed concern about decorum and security despite utterly no evidence from years of practice that chaplains’ prayer and touch during executions had disrupted the procedure or interfered with the administration of the lethal drugs.

            Representing Ramirez during oral arguments at the Court last week (November 9), Seth Kretzer repeatedly stressed that point as he fielded challenging questions from conservative justices, including Thomas, Alito, and Kavanaugh, who had all voted in support of free exercise claims in other contexts.

Thomas began by questioning Ramirez’s sincerity: was he filing repeated free exercise claims to game the system, Thomas asked. Kretzer answered with indignation. “I do not play games,” he countered. “There’s been no dilatory tactics in this case.”

Roberts followed by clarifying that Ramirez was specifically asking that his pastor, Moore, be allowed to touch his foot as the execution proceeded. Alito then joined to imagine a succession of pleas from inmates.

“What's going to happen when the next prisoner says that I have a religious belief that he should touch my knee? He should hold my hand? He should put his hand over my heart? He should be able to put his hand on my head?” Alito asked. “We're going to have to go through the whole human anatomy with a series of cases.”

Kretzer’s reply left Alito unsatisfied. “I take it what you said is, well, each one of these is different, factually different; prisoners have different religious beliefs; each one has to be analyzed separately,” the justice said. Kretzer said he knew of no religion that specified “a touch on this particular piece of the body.”

.“What we're talking about here is a laying-on-of-hands doctrine that the minister does with all of his congregants as they're nearing the point in time that they die,” Kretzer added. Appearing before a Court with six practicing Catholics, Kretzer might have noted an analogy to the Catholic sacrament of Extreme Unction. – the last rites that a priest performs to a Catholic believer.

Kavanaugh joined to reject Kretzer’s assurances that nothing would go wrong by allowing audible prayer and touch during the execution. Not good enough, Kavanaugh objected. “I'm still having problems with they're saying we should keep the risk to zero,” he said, “and you're saying, no, you should tolerate a little more risk because Alabama does it.”

The justices’ varied objections were in contrast to their responses to free exercise claims in a succession of gay marriage cases from the anti-gay baker in Colorado, the florist in Washington, and the printer in Kentucky – who all claimed religious objections to providing services for same-sex couples. None of the justices in those cases questioned the religious bona fides of the plaintiffs’ objections to same-sex weddings. Nor did any of the justices fret in the first of the cases that hearing one such case would invite a succession of cases, each one with a different fact pattern presenting the Court with different issues each time.

Kavanaugh’s favorable view of Texas’s compelling interest in a zero-risk execution differed from the Court’s blithe dismissal in the gay marriage cases of each state’s interest in enforcing its anti-LGBT discrimination laws. In the execution case, Ramirez’s free-exercise claim comes with a congressional mandate that the state can override his religious liberty only under a demanding standard. The Religious Land Use and Institutionalized Persons Act (RLIUPA), enacted in 2000, specifies that a state government can impose a substantial burden on a prisoner’s free exercise only to further a compelling interest and only if the restriction is narrowly tailored.

            Under that standard, Ketzer argued that Ramirez’ plea should certainly be granted. Supporting Ramirez’ stance, the Biden administration also argued that Texas had not met its burden under the federal law. “[O]ur recent experiences suggest that a categorical ban, like Texas appears to have, isn't the least restrictive means for doing so,’’ deputy solicitor general Eric Feigin told the justices. “To justify such a ban, Texas would have to offer -- its experts would have to offer state-specific reasons why it's necessary.”

            In the then-recent spate of thirteen federal executions, Feigin told the justices, the government “has allowed vocalization essentially throughout” the procedure. In addition, Feigin said, “[W]e've allowed physical contact one time briefly before the execution -- before the administration of the drugs began.”

            Feigin also contrasted the government’s attitude with Texas’s stance. For the most part, Feigin said, the government accommodated inmates’ requests regarding spiritual advisers. “Everyone was clearly satisfied enough that we avoided last-minute litigation,” the government lawyer said. 

Saturday, November 6, 2021

Abortion Rights Still in Limbo in Texas

             Supreme Court justices met in conference on Friday (Nov. 5) and issued late in the day a routine orders list granting review in three more cases for the current term. They adjourned, however, without acting on more urgent business: what to do to restore the Court’s own authority over the state of Texas’s attempt to nullify the Court’s abortion rights precedents in the country’s second most populous state.

            The justices had divided 5-4 two months earlier in a shadow docket decision [Sept. 1] that allowed Texas’s ban on abortions after the sixth week of pregnancy to go into effect despite opinions from four of the justices pronouncing the law unconstitutional. In the meantime, women in Texas seeking abortions had to cross state lines into Oklahoma or Louisiana to vindicate the constitutional rights guaranteed to them under Supreme Court precedents.

            The justices expanded their review of the Texas law by agreeing to hear arguments in separate suits challenging the law: one brought by abortion providers, Whole Woman’s Health v. Jackson, and the other brought by the United States under the name United States v. Texas.

            Both suits had to contend with Texas’s unprecedented stratagem to avoid federal court review of the law. Texas’s never-before-tried ploy turned on denying the state any role in enforcing the ban on pre-viability abortions and turning enforcement over to private citizens through punitive civil suits against anyone aiding in an abortion illegal under the new law.

 The Court heard arguments in the two cases on Monday [Nov. 1]. The justices’ questions in the first of the cases indicated likely approval of the providers’ legal effort to nullify the law, formally titled the Heartbeat Act and commonly referred to by its bill number S.B. 8. The Justice Department filed its own suit in the United States’ name after the Fifth Circuit stayed the injunction that the abortion providers had won in their suit at the district court level.

The United States also won an injunction in its suit—specifically, enjoining court clerks from docketing private suits filed under S.B. 8 and enjoining private citizens who actually attempt to file such suits. The Fifth Circuit stayed that injunction as well, thus leaving the law in effect despite two lower court rulings finding it unconstitutional.

Representing the United States in the second argument on Monday, the newly confirmed solicitor general Elizabeth Prelogar boldly and unapologetically defended the procedurally unprecedented suit against the Texas law. The law, Prelogar declared, was a “brazen attack” on the Court itself and on Congress. “It's an attack on the authority of this Court to say what the law is and to have that judgment respected across the 50 states,” Prelogar  explained. “And it's an attack on Congress's determination that there should be access to pre-enforcement review in federal court to vindicate federal rights. The United States may sue to protect the supremacy of federal law against this attack.”

To justify the suit, Prelogar had to get around a century-old Supreme Court precedent known as Ex parte Young (1908) that protects states from being sued directly to overturn unconstitutional laws and instead requires such suits to name as defendant the state officials charged with enforcing the allegedly unconstitutional law.

One passage in that decision posed a particular obstacle to the remedy that the government sought in its suit. “[T]he federal court may enjoin an individual or a state officer from enforcing a state statute on account of its unconstitutionality,” the Court declared, “but it may not restrain the state court from acting in any case brought before it . . . .” An injunction to that effect, the Court added, “would violate the whole scheme of this Government.”

Prelogar drew challenging questions quickly from the trio of hard-line conservatives – Thomas, Alito, and Gorsuch – who all found various reasons for doubting the procedural posture of the United States’ suit. Thomas repeatedly demanded that Prelogar cite some precedent for the United States’ suit. Prelogar acknowledged she had no precedent to cite because there was no precedent for the scheme that Texas devised to prevent judicial review. “[B]ecause a state has never before crafted an enforcement scheme like this, there has not been the kind of situation that would prompt the United States to intervene in this manner,” she added.

In later reply to a supportive question from one of the Court’s liberal justices, Kagan, Prelogar defended the injunction that the district court had entered in the United States’ suit. “[T]he district court recognized that in these very unusual circumstances it was also appropriate to bind the clerks and the judges, who are being used as part of the machinery of this apparatus to impose the substantial chilling effect through the S.B. 8 enforcement actions,” she replied.

With her rebuttal, Prelogar closed by pleading the urgency of the case. She asked the Court to “affirm the preliminary injunction entered by the district court and immediately [emphasis added] vacate the stay that the Fifth Circuit entered in this case so that Texas cannot continue to deny women in its borders a right protected by this Court’s precedents one day longer.” Any immediate action seemed unlikely, however, after the Court decided to hear the two cases under normal procedures. So now, women in Texas must wait in legal limbo as the justices draft opinions and come to some decisions, probably weeks from now.

 

Saturday, October 30, 2021

Gun Lobby Lacks Broad Support in New York Case

             The New York gun rights advocates who are asking the Supreme Court to establish a presumptive constitutional right to carry firearms in public outside the home lack broad support for their claim among the dozens of friend-of-the-court briefs filed by groups on both sides of the issue.

            The Republican-packed Court will hear oral arguments in the case, New York State Rifle & Pistol Association v. Bruen, on Wednesday, Nov. 3. The Biden administration will share time with the state’s lawyer to defend the state law that requires applicants for a gun permit to show “proper cause” for needing to be armed in public.

            Most of the forty-seven amicus briefs supporting the New York gun group in the case were filed by elements of the gun lobby itself: gun owner groups in other states, libertarian advocacy groups aligned with the gun lobby, or law professors with careers built on Second Amendment scholarship.

            The groups that filed thirty-seven amicus briefs on New York’s side represent much broader segments of American society, including the professional associations representing the nation’s doctors and the nation’s lawyers. In its brief, the American Medical Association (AMA) argues that “unrestricted concealed carry permits” would “open the floodgates to more injury and death” from what the doctors call “the epidemic of firearm violence.”

            Other groups supporting New York’s position include such long established civil liberties and civil rights organizations as the American Civil Liberties Union (ACLU), the NAACP Legal Defense and Educational Fund (LDF), and the League of Women Voters. Like the AMA, these groups warn that making it easier for people to go armed on the streets would add to the risks of gun violence – including intimidation and harassment against, among others, free-speech demonstrators,  minority groups, and would-be voters waiting in line at polling places.

In its brief, the ACLU argues that broad bans on public carry, enacted and enforced when the Second Amendment was ratified, were historically important in “promoting safety and reducing the chances that the disagreements inevitable in a robust democracy do not lead to lethal violence.”

The ACLU also notes that the two states that recently experienced armed insurrections at their state capitals, Michigan and Oregon, both have lax open carry laws. The brief also argues that the District of Columbia’s relatively strict public carry law helped limit potential violence during the January 6 insurrection by encouraging insurrectionists to leave weapons at home or in their cars.

The ACLU’s brief continues by listing half a dozen instances when gun-carrying individuals with permits threatened or fired their weapons at innocent bystanders—among others, “Black Lives Matter” protesters. The other victims included, for example, a Walmart customer who asked a gun-toting fellow customer to put on a mask and a black family threatened by a gun-carrying white driver in a parking-lot dispute.

            In its brief, the League of Women Voters notes that threats and force “have long been used to intimidate voters.” The League warns further that “handgun proliferation reasonably creates fear that voting-related conflict and unrest will turn violent.”

            Red states and blue states lined up, as often happens, in amicus briefs filed according to their political orientations on opposite sides of the case. Most of the twenty-six states that support the New York gun group already have enacted so-called “shall issue” laws in response to lobbying from the National Rifle Association (NRA); the red states argue that “objective permit regimes” reduce some types of violent crimes and have no statistically significant effect on violent crime overall. In an opposing brief, seven former big-city police chiefs, including New York City’s former police commissioner William Bratton, contend to the contrary that New York’s licensing regime “makes the state’s citizens safer without infringing on protected constitutional rights.”
            Eighteen blue states and the District of Columbia joined in an amicus brief filed by California in support of the New York law. Besides California, the list includes three other states – Illinois, Michigan, and Pennsylvania -- among the ten most populous in the country. The red states’ brief includes two of the mega-states, Texas and Florida, along with four of the states among the country’s least populous: Alaska, the Dakotas, and Wyoming.

            The government’s brief notes that Congress has enacted an array of federal laws limiting, for example, the carrying of firearms aboard airplanes, in school zones, and in government buildings. Those laws, the government argues, comport with the Second Amendment and so also do local and state laws regulating open or concealed carry. In effect, the government warns, a ruling against the New York law would risk upending public-safety laws enacted at all levels of government in the interest of a radical revision of constitutional law urged by a narrow slice of the American public and the legal profession.

Sunday, October 24, 2021

George Floyd Didn't Have to Die

         Five months after George Floyd’s death in Minneapolis, the federal appeals court in California issued a ruling in a less serious use-of-force case that could have saved Floyd’s life if the Ninth Circuit’s rule had been adopted earlier by the Minneapolis police department. The appeals court’s ruling in Cortesluna v. Leon cited a twenty-year-old decision as establishing a simple, easy-to-follow rule for police to follow: any use of force against a suspect, lying on the ground and not resisting, is excessive and against the law.

            The Ninth Circuit’s panel treated that rule as clearly established and applied it to allow the suspect in a domestic disturbance case, Ramon Cortesluna, to sue the officer, Daniel Rivas-Villegas, who kneeled on his back while he lay on the ground helpless and compliant. With one judge dissenting, the panel majority determined that controlling precedent at the time put officers on notice that kneeling on a prone and non-resisting person’s back so hard as to cause injury was excessive.

            With a rule like that in Minneapolis, Officer Derek Chauvin might have known that he was violating the law from the very first moment that he pressed his knee against Floyd’s neck—not for eight seconds but for nine minutes. The other, younger officers at the scene might have felt more comfortable in urging Chauvin to stop before the pressure on Floyd’s windpipe killed him.

            The Supreme Court reversed the Ninth Circuit’s decision in a ruling issued last week (October 18) that effectively ended Cortesluna’s suit against the two officers involved in his arrest and resultant injury. Ruling in the case without full briefing or oral arguments, the justices held that the earlier case that the Ninth Circuit relied on was “materially distinguishable” from Cortesluna’s case and determined that Rivas-Villegas’ use of force – kneeling on Cortesluna’s back for eight seconds -- was not clearly excessive and on that basis that he was entitled to qualified immunity.

            More than a year after George Floyd’s death in May 2020, the efforts to reform police practices on use of force have produced little by way of changes in policy. The Ninth Circuit’s rule, on the other hand, could have significant impact if adopted not only in western states but in other federal circuits. The Supreme Court’s peremptory rejection of the Ninth Circuit’s decision, on the other hand, kills any prospect for extending the rule.

            The Supreme Court’s ruling in the California case was one of two summary decisions issued last week that granted qualified immunity to police officers sued for excessive force. Together, the two decisions dashed hopes that the justices might respond to the growing criticism of the judicially created doctrine of qualified immunity, which effectively allows police officers to escape liability by claiming ignorance of the law. How were we to know, the officers in the California case might have asked, that it is wrong to use force against a suspect after the suspect is compliant and under control.

            Joanna Schwartz, a professor at UCLA Law School who teaches about police accountability, summarized the arguments against qualified immunity in an article published recently in the University of Chicago Law Review. There is a growing consensus among courts, scholars, and advocates across the ideological spectrum that qualified immunity doctrine is legally unsound, unnecessary to shield government officials from the costs and burdens of litigation, and destructive to police accountability efforts,” Schwartz wrote.

            Critics emphasize that qualified immunity effectively leaves police officers and oversight agencies with no clear guidance on use of force. The Supreme Court’s ruling in the California case, for example, unsettles the Ninth Circuit’s bright-line rule and instead holds that eight seconds of unnecessary use of force is not necessarily excessive – but how about sixty seconds? Or nine minutes?

Even apart from the issues left unresolved in decisions based on qualified immunity, Schwartz reports in her article that police officers “are not notified of the facts and holdings of cases that clearly establish the law for qualified immunity purposes.” And, in any event, “there is no reason to believe that officers would analogize or distinguish situations rapidly unfolding before them to the court decisions they once studied.”

            Two terms ago, critics of qualified immunity filed several petitions urging the Supreme Court to take a serious look at the doctrine and consider either eliminating it or narrowing it significantly. The justices turned aside all those petitions, despite the widespread buzz among the defense bar and civil liberties communities. With last week’s decisions, the Court appears to be doubling down on qualified immunity rather than re-examining the doctrine.

            The Court’s reticence bodes ill for any significant reform in police practices in the near future. Recall that police practices on interrogating suspects and defendants were reformed only after the Warren Court laid down bright-line rules for police to follow: specifically, no custodial interrogation without first advising suspects of their right to an attorney during questioning. The Miranda guidelines were intensely controversial when adopted in the 1960s, but by 2000 Chief Justice William H. Rehnquist spoke for a 7-2 Court in declaring that the Miranda warnings “have become part of our national culture.”
            The current Court ought to consider what it can do to establish reasonable limits on police use of force instead of using qualified immunity to avoid the issues. Miranda, it is now clear, has been good for law enforcement by giving a clear roadmap for admitting confessions from suspects. Police today need the same kind of clear rule about when and how use of force can be justified.

Saturday, October 16, 2021

Too Many Cooks on Supreme Court Reform?

            The need for Supreme Court reform is urgent precisely because the nomination and confirmation process has become in the hands of Republican presidents and Republican senators a partisan spoils system. The resulting partisanship may well doom any or all of the various reform proposals now being debated by, among others, the 36-member commission appointed by President Biden

             No one expected that Supreme Court reform would be anything other than deucedly difficult, and the work of the Presidential Commission on Supreme Court Reform has not yet made the task easier or more auspicious. In creating the commission by Executive Order 14023, President Biden limited the membership commission to no more than thirty-six, but that number itself poses daunting obstacles to producing a consensus report that can overcome the partisan resistance to any of the reform proposals.

             The commission met for a six-hour talk fest on Friday (Oct. 15) the day after the commission released draft discussion materials prepared by working groups on such proposals as expanding the size of the Court and establishing term limits for Supreme Court justices. The draft materials were dismissively summarized on Twitter by Eric Segall, a law professor at Georgia State, in these words: “A little of this and a little of that and a lot of nothing. And so it goes.”

             In Friday’s meeting, several of the commissioners, including the Harvard Law School professor Laurence Tribe, objected in particular to the ostensibly even-handed approach that the working group used in the 45-page report describing proposals to increase the size of the Court. As drafted, Tribe complained, the report “stops the discussion as related to expansion.”

             Here’s the rub: adding one or more new justices with a Democrat in the White House would be the most straightforward remedy for the Republicans’ packing of the Court that began with the Senate’s refusal in 2016 to consider President Obama’s nomination of Merrick Garland for the vacancy created by Justice Antonin Scalia’s death. The GOP-majority Senate packed the Court further by changing Senate rules to fast-track confirmations of President Trump’s three nominees: Neil Gorsuch, Brett Kavanaugh, and Amy Comey Barrett. The last of those party-line confirmations came on October 25, 2020, as the American people were already voting to deny Trump re-election. 

Tribe also noted that among the various proposals under discussion, changing the size of the Court is the most clearly within Congress’s power to enact. He warned that he “would have trouble signing” the commission’s eventual report if it threw cold water “on the one legitimate exercise of congressional power to counteract a dangerous judicial trend.”

Even without constitutional doubts, expanding the size of the Court would be difficult at best to get through the Senate if Republicans use the filibuster to thwart the will of the narrow Democrats’ 52-48 majority. In contrast to the draft discussion on expanding the size of the Court, the draft materials on term limits acknowledge the “widespread and bipartisan support” for limiting tenure for justices. The thirty-page report adds that term limits “can enhance the Court’s legitimacy in the eyes of the public.” Despite those favorable assessments, the report nevertheless warns that term limits “are not a panacea for polarization.” The report then adds that mandatory retirements “would ensure some degree of responsiveness to elections over time, while preserving judicial independence.”

Presidential commissions can help form conventional wisdom on contentious political issues even without producing tangible results. In that regard, recall the strongly worded Kerner Commission report in 1968 that linked urban riots to the persistence of poverty and institutional racism. Sadly, most of the commission’s recommendations to address those issues went unacted on. The present commission on Supreme Court reform can help counteract the hyper politicization of the Court only if the members coalesce behind a strongly worded report that places the blame for the current polarization where it belongs and avoids the use of false equivalencies to spread the blame around.

The draft materials on expanding the size of the Court echo the warnings from, among others, Breyer that adding one or more justices would invite a tit-for-tat response by the opposite party at some later date. In Friday’s meeting, one of the commissioners, the conservative George Mason University law professor Adam White, appeared to adopt the view submitted by Georgetown law professor Randy Barnett that Congress has no power to change the size of the Court only for partisan balance.

Tribe, with far stronger academic credentials than Barnett, rejected Barnett’s view, contending that Congress’s motivations for changing the size of the Court would be irrelevant. In fact, the draft materials note that Congress has changed the size of the Court more than half a dozen times through history, for a mixture of institutional and partisan reasons.

The well known maxim may apply here: too many cooks can spoil the soup. The commission will serve a useful purpose only if the commissioners – most of them, respected law professors from prestigious law schools – can set aside any partisan differences to produce a strongly worded report that sets out a viable path for reducing the acknowledged increase in partisan conflict in recent years.

Saturday, October 9, 2021

"Home Cooking" for Texas in Abortion Case?

             The state of Texas seems likely to get a generous serving of “home cooking” when a panel of three federal appellate judges hear the state’s effort on Tuesday [October 12] to salvage the state’s patently unconstitutional ban on abortions after the sixth week of pregnancy. The panel, with two Republican appointees and one Democratic appointee, already gave the state a boost on Friday (October 9) by temporarily lifting the injunction that a federal district court judge issued earlier in the week to block enforcement of the law.

Two of the three judges on the panel have deep roots in the state’s conservative Republican politics: Catharina Haynes, a former state court judge appointed to the Fifth Circuit in 2008 on the recommendation of the state’s two Republican senators, and James Ho, a former Texas solicitor general appointed to the appeals court by President Trump in 2018. Ho may have the decisive vote in the appeal if, as seems likely, Haynes and the Democratic appointee on the panel, Carl Stewart, a former state appellate judge in Louisiana, disagree.

            In issuing the injunction against the law on Wednesday (Oct. 6), U.S. District Court Judge Robert Pitman emphatically rejected the state’s effort to avoid judicial review by vesting enforcement not with state officials but with private citizens he called “anti-abortion vigilantes.” Any private citizens suing to enforce the law, Pitman concluded, would be “state actors” subject to a federal court injunction.

Specifically, the so-called Texas Heartbeat Act incentivizes private citizens to enforce the law by allowing a private citizen to be awarded $10,000 for successfully suing anyone who performs or induces an abortion or aids and abets an abortion after “cardiac activity” in an embryo can be detected, usually around the sixth week of pregnancy.

The lawyer who designed the act’s unprecedented enforcement scheme was Jonathan Mitchell, a former state solicitor general and ex-law clerk to Supreme Court Justice Clarence Thomas. As it happens, Ho appears to be on ideologically compatible terms with Mitchell; Ho served as moderator with Mitchell as a panelist on a Federalist Society program at the University of Chicago Law School in February 2019.

Ho is also no stranger to abortion-related cases engineered by the Texas state legislature. Within months of taking his seat on the Fifth Circuit, Ho voted in July 2018 to uphold a Texas law requiring burial or cremation of fetal remains after an abortion. He added in his opinion that the Catholic bishops defending the law had the right “to express their profound objection to the moral tragedy of abortion, by offering free burial services for fetal remains.”  

Pitman, appointed to the federal bench in Austin by President Obama in 2014, wrote a comprehensive 113-page opinion that thoroughly answered all of the state’s defenses of the law and all of the state’s objections to the United States’ suit seeking to invalidate the law. Pitman began by stating what was surely obvious to the Texas legislators in enacting SB8. “A person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established,” Pitman wrote. “Fully aware that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the State contrived an unprecedented and transparent statutory scheme to do just that.”

Pitman’s decisive action was in sharp contrast with the Supreme Court’s earlier decision on Sept. 1 to allow SB8 to take effect. The five Republican-appointed conservatives in the majority authored an unsigned, one-paragraph opinion that acknowledged “serious questions” about the constitutionality of the law, but they threw up at their hands because of the “procedural questions” created by the state’s private enforcement scheme. The abortion clinics who brought the case to the Supreme Court, Whole Woman’s Health v. Jackson, Judge, named as defendants the class of state court judges in Texas empowered to entertain the private enforcement suits authorized by the law.

Pitman circumvented the procedural question by directing the state to publish on “all of the public-facing court websites . . .  a visible, easy-to-understand instruction to the public that S.B. 8 lawsuits will not be accepted by Texas courts.” Pitman further instructed the state to distribute copies of his preliminary injunction to all of the state’s judges and all of the state’s court clerks. Pitman acknowledged that the court might not be in the best position to dictate the particulars and, instead, ordered the state to submit its plan for disseminating the information to him for “review and approval.”

If reviewed by a non-stacked panel, Pitman’s meticulous opinion would warrant an affirmance with an acknowledgment of its scholarly thoroughness In issuing the injunction against the law, Pitman sent the state’s lawyers packing by refusing to consider the state’s application for a stay pending the inevitable appeal.

The state, Pitman wrote at the end of his opinion, “has forfeited the right to any such accommodation by pursuing an unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right.” Other courts may rule differently, Pitman acknowledged, but he was unshaken in his decision. “This Court will not sanction one more day of this offensive deprivation of such an important right,” Pitman wrote in conclusion.

The Fifth Circuit panel took only five hours on Friday before issuing the temporary administrative stay to allow the law to go back into effect pending next week’s appeal. The panel wrote nothing by way of explanation for putting Pitman’s decision on hold; Haynes and Ho have their work cut out for them to come up with legal rationales to uphold the law, as they surely hope to do.