Monday, June 28, 2010

Gun Rights Ruling Ends Court's Term on Dramatic Note

      The Supreme Court ended its 2009-2010 term in dramatic fashion on Monday [June 28] with sharply divided, 5-4 decisions extending Second Amendment protection to state and local gun control laws and striking down a part, but only a small part, of a corporate reform law passed in the wake of the Enron scandal.
      In two other rulings, the court rejected a Christian group’s effort to validate exclusionary membership policies at a California law school and stopped just short of a ruling that could have barred patents altogether for so-called business methods.
      The 75-minute-long session marked Justice John Paul Stevens’ final day on the bench after 34-and-a-half years on the high court. Barely an hour later, the Senate Judiciary Committee was to begin confirmation hearings on President Obama’s nominee to succeed Stevens: Elena Kagan, the current U.S. solicitor general and former dean of Harvard Law School.
      At age 90, Stevens is the second-oldest person ever to serve on the Supreme Court. If confirmed — as universally expected — Kagan will join the court at age 50 as the youngest of the current justices.
      The court’s conservative majority, led by Chief Justice John G. Roberts Jr., flexed its muscles in three of the four 5-4 decisions on Monday. Moderate conservative Justice Anthony M. Kennedy joined the bloc of four liberal justices to produce a majority in the law school case.
      Three of the four cases decided on Monday featured justices in dissent reading portions of their opinions from the bench — what amounts to high drama for the Supreme Court. The session opened on a somber note with Roberts noting the death on Sunday of Martin Ginsburg, husband of Justice Ruth Bader Ginsburg and a noted tax lawyer and law professor. It ended on a nostalgic note with Roberts reading a farewell letter to Stevens signed by eight of the justices and retired justices Sandra Day O’Connor and David H. Souter.
      Roberts praised Stevens for his “vigor and integrity,” “unaffected decency,” and combination of “genuine collegiality with independent judgment.” Stevens responded, in what Roberts introduced as a “rebuttal,” mockingly apologizing for having “overstayed my welcome.” His voice broke at one point in the reading.
      The gun ruling, McDonald v. Chicago, invalidated a ordinance that virtually banned any private possession of handguns in the nation’s third-largest city. For the majority, Justice Samuel A. Alito Jr. relied heavily on the 2008 decision in District of Columbia v. Heller, striking down a handgun ban in the nation’s capital. Because Washington is a federal jurisdiction, the ruling left open the question whether the newfound Second Amendment right to possession of a handgun in the home for self-defense also applied to state and local governments.
      Emphatically, the court said yes. “The Second Amendment is fully applicable to the states,” Alito wrote in the opening of a 45-page opinion. In a 35-page dissent, Justice Stephen G. Breyer said the ruling intrudes on the states’ “quintessential exercise of police power” and invites federal court challenges to every state and local gun regulation.
      Roberts spoke for the conservative majority in the final decision of the term, striking down a portion of the Sarbanes-Oxley law enacted in 2002. The act created a new agency, the Public Company Accounting Oversight Board, to regulate accounting firms _ which had been blamed for some of the corporate misdeeds implicated in the Enron and other business scandals.
      In Free Enterprise Fund v. Public Company Accounting Oversight Board, the court held the structure of the bond was unconstitutional because of separation of power concerns. The law provided that the board members were to be appointed by the Securities and Exchange Commission (SEC) Roberts said that the political insulation of the SEC members combined with the political insulation of the PCAOB members — removable only for cause — infringed on the president’s executive powers. To remedy the problem, the court imposed only a modest fix — making the board's member subject to removal by the SEC for any reason — instead of a broader ruling that might have required Congress to rewrite the law.
      Dissenting again, Breyer warned the ruling cast doubt on tenure-protection provisions for thousands of federal officials, including administrative law judges and what he said was half of the military’s officer corps.
      The patent case, Bilski v. Kappos, had been closely watched by the patent community as a test of whether business methods were patentable. The ruling invalidated a patent granted allowed for a method of hedging commodities investments. In his majority opinion, Kennedy said the method was only “an abstract idea” and not patentable.
      In an opinion technically concurring in the judgment but amounting to a dissent, Stevens said the court should have completely barred patents for business methods. He criticized the “timid disposition of the case.” The court’s three other liberal justices joined his opinion.
      In the fourth case, Christian Legal Society v. Martinez, the court upheld what it called an anti-discriminaton policy for student organizations at Hastings Law School in San Francisco in the face of the Christian group's effort to exclude gays or "nonbelievers" from leadership positions on religious grounds. Ginsburg wrote for a five-justice majority that included Kennedy in upholding the school’s "all-comers" policy; Alito led the four dissenters.
      The court’s term will be best remembered for the dramatic Citizens United decision striking down part of the McCain-Feingold campaign-finance reform law and giving corporations and unions the right to spend unlimited sums from their own treasuries on federal campaigns. In another significant conservative victory, the court upheld on a 6-3 vote a broad interpretation of an anti-terrorism law prohibiting any “advice or assistance” or “training” to designated foreign terrorist groups.
      Liberals counted some significant victories, however, including a 5-4 decision prohibiting life without parole sentences to juvenile offenders (Graham v. Florida). Free-speech advocates also counted a victory in an 8-1 decision striking down a federal law prohibiting depictions of animal cruelty (United States v. Stevens).
      In criminal law, the court issued three decisions narrowing Miranda protections but two rulings that somewhat liberalized rules on federal habeas corpus challenges to state criminal convictions and sentences. And in a significant business-related case, the court barred securities fraud suits in U.S. courts for stocks sold on foreign exchanges.

Wednesday, June 23, 2010

Trusting the Government on Anti-Terrorism Law?

     Ralph Fertig has been advocating the cause of Kurdish national liberation for nearly a quarter century. But the longtime civil and human rights activist professes not to know much about the Kurdistan Workers’ Party (PKK), which the United States government lists as a foreign terrorist organization.
     “I don’t even know who is a member of the PKK,” Fertig told a radio interviewer in Februay. “I work with Kurds,” Fertig explained. “I don’t ask whether they’re members of the PKK.”
     Fertig's comments came on the eve of Supreme Court arguments in his constitutional challenge to the federal law making it a crime to provide "material support," including advice or training, to officially designated foreign terrorist groups. For more than decade, Fertig has been helping the Kurds under the threat of a possible criminal prosecution under that law.
     The government has not prosecuted Fertig. But in rejecting Fertig's challenge this week, the Supreme Court has given a solid green light to use of this broadly written anti-terrorism law not only against “the worst of the worst” but also in some sense against “the best of the best” — people like Fertig and groups like his Humanitarian Law Project. Fertig and others say they want to try to guide foreign organizations that use terrorism to advance their goals to tun instead to lawful advocacy and peaceful dispute resolution.
     Both the Bush and Obama administrations have made the “material support” law the go-to legal weapon against suspected members or supporters of al Qaeda. The court’s 6-3 decision in Holder v. Humanitarian Law Project (June 21) allows the government as well to prosecute human rights-minded Americans for activities that would seem to be both laudable and constitutionally protected.
     For the majority, Chief Justice John G. Roberts Jr. accepted the government’s different view that any “training” or “advice or assistance” to a foreign terrorist organization — even for lawful ends — is “highly likely” to inure ultimately to the benefit of its terrorist activities. Congress and the executive branch were “uniquely positioned” to make that judgment, Roberts wrote. Dissenting justices argued that the court had a more important role: to protect the First Amendment.
     Up until this week, the government had fared badly in playing the anti-terrorism card at the Supreme Court. In four post-9/11 cases decided between 2004 and 2008, the justices rejected the Bush administration’s claims of broad authority to detain suspected enemy combatants with limited review by the courts.
     The government fared badly as well in the lower courts in defending the broad reading of the material support law. As originally enacted in 1996, the law was aimed at prohibiting the most concrete forms of aid to terrorist groups: direct financial assistance, lodging, equipment, personnel, or training. Congress substantially expanded the provision late in October 2001 — barely six weeks after the 9/11 attacks — to prohibit “expert advice or assistance” as well. That was one of the many provisions of the USA Patriot Act that got only the most cursory consideration from Congress in the post-9/11 panic.
     The challenge to the law was advancing even as Congress was expanding it. A few weeks before passage of the USA Patriot Act, U.S. District Court Judge Audrey Collins issued a final ruling reaffirming her earlier decision that the law’s prohibitions against providing personnel or training were “impermissibly vague.” Later, in 2003, Fertig’s group filed a second suit challenging the “expert advice or assistance” provision. The proceedings clearly indicated trouble for the government in defending the law as written, prompting Congress late in 2004 to narrow the definition of “training” and “expert advice or assistance.” Lawmakers also added a requirement — as the Ninth Circuit appeals court had ruled necessary — that prosecutors show that a defendant had knowingly provided aid to the terrorist group.
     In his opinion, Roberts cited the legislative refinements as evidence that Congress had been careful not to cross the First Amendment line. In dissent, Justice Stephen G. Breyer proposed going one step further and requiring the government to prove that a defendant knew that any training, advice, or assistance was likely to further the organization’s terrorist actions, not its lawful activities. Roberts said Congress "plainly" decided not to require that kind of specific-intent proof.
     Hawkish national security experts are hailing the ruling. “Terrorist organizations must be treated as pariahs and suffocated, not cultivated,” former federal prosecutor National Review legal editor Andrew McCarthy writes on a New York Times blog. From the opposite perspective, Stephen Vladeck, a law professor at American University in Washington, warns the decision will have “a profound chilling effect on the efforts of peace-building organizations and other NGOs that seek to promote non-violent democracy building.”
     Much depends on whether the Justice Department makes judicious use of the law now that the high court has removed the cloud over it. In oral argument back in February, Solicitor General Elena Kagan expressly declined to speculate whether activists such as Fertig had real reason to fear prosecution under the law.
     Writing in a different case earlier this year, Roberts was unwilling to trust the government’s good faith alone on sensitive First Amendment questions. “We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly,” Roberts wrote in striking down a broadly written animal cruelty statute in United States v. Stevens. In the new ruling, however, the Roberts Court is willing to put the First Amendment at some risk, trusting assurance from a government that since 9/11 has proved none too trustworthy on national security matters.

Friday, June 18, 2010

Roberts Court's Activist Impulse in Beachfront Case

      Judged by the result, the decision looks like a model of judicial restraint. The Supreme Court unanimously rejected a claim by landowners on Florida’s northern Gulf Coast that they had suffered an unconstitutional taking of property after beach restoration by local governments turned their oceanfront homes into ocean-view lots separated from the water by 75 feet of new sand.
      Looked at more closely, however, the court’s June 17 decision in Stop the Beach Renourishment v. Florida Department of Environmental Protection discloses an activist impulse by the Roberts Court’s committed conservatives. In a plurality opinion, four justices fell one vote short of a majority to give federal courts new power to superintend state court rulings on land- use law. The ruling they sought could have led to a vast increase in property rights litigation, giving property owners new leverage to block government-backed development and improvements aimed at benefiting the broad public.
      The decision came as liberal groups are stepping up their accusations that under Chief Justice John G. Roberts Jr., the court has been guilty of pro-business judicial activism. “The Roberts Court consistently pursues a political agenda that favors powerful corporate interests,” according to a report by the Alliance for Justice, “and recent Supreme Court decisions show certain Justices’ striking willingness to engage in judicial activism to fulfill their ideological goals.”
      Exhibit No. 1 in the group’s indictment is the 5-4 Citizens United decision in January, which freed corporations (and unions) to spend unlimited sums from their own treasuries on political campaigns. But the report pointed to a dozen other cases in which the court purportedly “overreached” by deciding questions unnecessarily, crafting new legal standards “out of thin air,” or overriding factual determinations by lower courts.
      As another example, the group cited the 2009 decision, Gross v. FBL Services, that went beyond the narrow question presented to shift the burden of proof from employers to plaintiffs in one type of federal age- discrimination case. As the report notes, the logic of the decision could also apply to the broad range of job- discrimination suits (race, sex, and so forth) brought under the Civil Rights Act of 1964.
      The conservative Heritage Foundation rushed out with a report depicting the liberals’ accusation as “mythology.” The attack, senior fellows Robert Alt and Hans von Spakovsky argue in a legal memorandum, is an effort to distract court watchers from the true record of judicial activism by liberal judges.
      The court’s handling of the Florida property rights case gives the warring ideological groups one more decision to debate. The case stemmed from the plan by the Gulf Coast town of Destin and its county government in 2003 to restore about seven miles of hurricane-eroded beach. Some beachfront property owners objected. Why? Because under well-established law, the restored beach would be public land, not private property.
     Having paid a pretty penny for an oceanfront lot with no beachgoing public between them and the water, the owners concluded that the government was taking their property without compensation in violation of the Fifth Amendment’s Takings Clause. They also claimed the benefit of Florida’s 1961 Beach and Shore Preservation Act, which generally provides that beachfront owners, post-restoration, are still entitled to almost all of their pre-existing property rights.
      The Florida Supreme Court rejected the owners’ claim, saying the owners had lost no protected property right. The owners took the case to the U.S. Supreme Court. There, they argued the novel theory that the state court’s decision on this somewhat close legal question amounted to a taking because it purportedly changed existing state law.
      The Supreme Court agreed to review the decision. During arguments in December, justices across the ideological spectrum appeared satisfied that the Florida Supreme Court had a sound basis for its decision. And that is what they said in the eventual ruling. All eight justices (Justice John Paul Stevens, a Florida land owner, recused himself) agreed that the state court was not guilty of taking the owners’ property.
      Before reaching that conclusion, however, Justice Antonin Scalia led a four-justice bloc that also included Roberts, Clarence Thomas, and Samuel A. Alito Jr. in saying that, yes, a court ruling changing an “established” property right could amount to a taking just as much as action by a legislative or executive body. The four other justices — Anthony M. Kennedy and Sonia Sotomayor in one opinion, Stephen G. Breyer and Ruth Bader Ginsburg in another — said it was unnecessary to decide the issue. In his opinion, Kennedy warned that the plurality opinion could transform virtually any state court property rights dispute into a “takings” claim. Any losing party, he suggested, could argue that the state court had “changed” established law to its detriment.
      In fact, within hours Ilya Shapiro of the libertarian Cato Institute Shapiro was hailing the four-vote opinion. “State courts are now on notice that they violate long-hailed property rights at their peril,” Shapiro wrote. Four votes, of course, do not make a majority on the Supreme Court. A full court almost certainly would have rejected Scalia’s position since Stevens has not embraced property rights claims in past cases. So Scalia’s opinion adopting the idea of “judicial takings” represents an extended dictum of no real legal effect, unnecessary to the decision but an activist gift to property rights advocates in future cases.

Wednesday, June 9, 2010

When Was It Time to Throw the Book at BP?

      Terrance Graham was a two-time juvenile offender, barely past his 19th birthday in 2006, when Judge Lance Day in Jacksonville, Fla., decided to send him to prison for the rest of his life “to protect the community.” Imagine what harms might have been prevented if the repeat corporate offender BP had come up before a likeminded judge sometime in the past.

* * *

      The cause of the April 20 blowout of BP’s Deepwater Horizon well in the Gulf of Mexico remains to be determined. So, too, the full extent of the economic, environmental, legal, and social costs of what is already the worst oil spill in U.S. history, a spill unlikely to be contained for at least two months, if then.
      Seven weeks later, however, this much is known: BP has a long history of safety and environmental violations that can be blamed for the deaths of 15 refinery workers in Texas, the spoilage of Alaska’s North Shore, and lesser injuries to workers and environments at other sites.
      The company has twice pleaded guilty to federal criminal charges. It was put on probation after the Texas refinery explosion in March 2005. Four years later, the Occupational Safety and Health Administration (OSHA) hit the company with a record $87 million fine for failing to correct the problems.
      In all, BP has paid or has pending over $730 million in fines, penalties, or settlements to federal, state, or local governments in recent years for environmental, worker safety, or price manipulation violations, according to a report by the consumer protection group Public Citizen.
      BP’s record of lawbreaking was no secret, but it was not well known. The March 2005 explosion at BP’s 1,200-acre oil refinery in Texas City, just outside Houston, killed 15 workers and injured some 170 others. But the accident was not front-page news outside Texas. Nor were the later investigations that found “significant process issues” at all five of BP’s refineries in the United States.
      In like vein, the 200,000-gallon oil spill from a BP pipeline on Alaska’s North Slope in March 2006 made front-page news in Alaska, but not the rest of the country. The spill, the largest ever on the North Slope, was linked to corrosion in the pipeline. BP had known about the problem at least since 2004, according to later investigations.
      In October 2007, the company pleaded guilty to federal crimes for both incidents: a felony violation of the Clean Air Act for the refinery accident, with a $50 million fine; a misdemeanor violation of the Clean Water Act for the oil spill, with $4 million in restitution to the state of Alaska and a $4 million payment to the National Fish and Wildlife Foundation. On the same day, the company agreed to pay $303 million to settle civil charges that it unlawfully manipulated prices in the market for propane. The guilty pleas were seen as an effort at good corporate citizenship by BP’s then-new CEO: Tony Hayward.

* * *

      After his first arrest — for a botched restaurant robbery — Terrance Graham negotiated a favorable plea agreement and vowed to do better. “I’ve decided to turn my life around,” Graham promised. After the second offense — a home-invasion robbery — an exasperated Judge Day scolded Graham for blowing his second chance. “If I can’t do anything to get you back on the right path,” the judge said, “then I have to start focusing on the community and trying to protect the community from your actions.”

* * *

      Four and a half years after the Texas City refinery explosion, OSHA concluded last October that BP had failed to make the safety improvements at the facility as promised. The agency proposed fines totaling $87 million. BP said it would contest the penalties. In March, the agency proposed a separate $3 million fine for safety violations at BP’s refinery in Oregon, Ohio, near Toledo.
      An analysis of OSHA’s data base by the Center for Public Integrity, the Washington-based journalistic watchdog group, found BP far and away the worst safety offender among U.S. refineries. BP was responsible for 829 “willful” violations from the period June 2007-February 2010, the center said; the total for all other refineries: 22.
      Now, internal documents obtained by Pro Publica, the nonprofit investigative journalism group, purportedly detail the company’s disregard of safety and environmental problems in the past. The documents — leaked by someone “close to the company” but critical of its performance — depict a corporate environment in which employees were pressured to cut corners and to keep any safety concerns to themselves.

* * *

      Terrance Graham will get a new sentence after the U.S. Supreme Court ruled on May 17 that life without parole is cruel and unusual punishment for a juvenile offender. But Florida Attorney General Bill McCollum is promising that Graham will still serve “a very long term in prison.” Meanwhile, U.S. Attorney General Eric Holder says the Justice Department has opened a criminal investigation of BP in the wake of the Gulf spill. “We will prosecute to the fullest extent of the law anyone who has violated the law,” Holder said.

Wednesday, June 2, 2010

Supreme Court’s ‘Law and Order’ Exception to Miranda Rule

      “Law and Order” may have ended its 20-year run, but Briscoe, Curtis, and all the other cops and prosecutors on the compelling TV series can rest content after a Supreme Court decision on Tuesday [June 1] that eases the rule on police interrogation established in the landmark Miranda case. By a 5-4 vote, the justices gave the green light to the kind of subtle coercion that “Law and Order” detectives still practice in nightly reruns and that Miranda had sought to prevent.
      Like many of the perps on “Law and Order,” Van Chester Thompkins had nothing to say while two detectives from Southfield, Michigan, questioned him on Feb. 22, 2001, about a drive-by shooting outside a strip mall a year earlier. In Thompkin’s case, he sat on a hard chair in an eight-foot by ten-foot interrogation room for three hours — long enough for three episodes — after refusing to sign a waiver of his Miranda right to remain silent.
      For two hours and 45 minutes, Thompkins said nothing more substantial than to complain about the chair and to decline Detective Christopher Helgert’s offer of a mint. In the real world, one would see that Thompkins did not want to talk. But, at the cop house, a different rule applies. Helgert kept up his monologue and finally figured out Thompkins’ weak spot. “Do you believe in God?” he asked. Thompkins said yes. “Do you pray?” Again, Thompkins said yes. “Do you pray to God to forgive you for shooting that boy down?” Helgert asked. Tearing up, Thompkins answered in one word: “Yes.”
      As a district attorney in California in the 1930s, Earl Warren had experience with old-style police interrogations: slapping suspects around and the like. As chief justice, he learned that police had adopted other techniques. “The modern practice of in-custody interrogation is psychologically, rather than physically, oriented,” Warren wrote in the 1966 Miranda decision. Police manuals, Warren explained, tell officers to isolate the suspect, display confidence, assume the suspect’s guilt, and get him simply to elaborate on what the police pretend already to know.
      The Supreme Court created the Miranda rule to combat what Warren aptly described as the inherently coercive nature of that kind of interrogation. Everyone is now familiar with the recitation of Miranda rights: the right to remain silent, the right to cut off questioning, the right to have a lawyer, and the right to have the lawyer present during interrogation. To safeguard those rights, the court said that police cannot use a suspect’s statement unless they show that a suspect knowingly and intelligently waived those rights. And a valid waiver could not be shown, the court said, simply by the fact that a confession was in fact obtained.
      In Thompkins’ case, Michigan courts drove right by those waiver rules. Thompkins’ statement was introduced and, in a close case, helped the prosecution get a conviction. On appeal, the Michigan courts said, counterintuitively, that Thompkins had to speak up in order to assert his right to remain silent. And, in seeming contradiction, the state courts said that Thompkins had waived that right with three one-word answers uttered after nearly three hours of interrogation.
      The Supreme Court agreed. “The record in this case shows that Thompkins waived his right to remain silent,” Justice Anthony M. Kennedy wrote for the Roberts Court’s conservative majority in Berghuis v. Thompkins. The suspect’s one-word answer about praying, Kennedy continued, “was sufficient to show a course of conduct indicating waiver.” True, Kennedy conceded, Thompkins sat in a straight-backed chair for three hours, but — overlooking Miranda — the justice said there is “no authority” for the proposition that an interrogation under these circumstances is “inherently coercive.”
      For the four liberal dissenters, Justice Sonia Sotomayor, a former local prosecutor, labeled the decision “a substantial retreat from the protection against compelled self-incrimination” established by Miranda. That decision places a “heavy burden” on the prosecution to show that a suspect has waived the right to remain silent, she explained, and it was “objectively unreasonable” to conclude that the prosecution had shown a waiver in Thompkins’ case on the basis of “three one-word answers, following 2 hours and 45 minutes of silence . . . .”
      Sotomayor also criticized the court’s new rule that a suspect must make a “clear statement” in order to assert a right to remain silent. “Advising a suspect that he has a ‘right to remain silent’ is unlikely to convey that he must speak (and must do so in some particular fashion) to ensure the right will be protected,” she wrote.
      For the majority, Kennedy suggested that the “clear statement” rule would not affect many cases. In a footnote, however, Sotomayor listed a raft of lower court decisions holding that suspects had not invoked a right to silence despite “an array of statements whose meaning might otherwise be thought plain.” Like the suspect who said, “I just don’t think I should say anything,” but his later statements admitted anyway.
      The new decision is not the first retreat from Miranda— and is unlikely to be the last. Yes, Miranda is still good law. But two decades of “Law and Order” show that fictional police know how to work around it. And the Roberts Court is OK with that in real life.