Sunday, June 30, 2013

In California, Gay Weddings Busting Out All Over

   The weddings were hastily arranged, with little time to notify friends and family before the happy couples rushed to city hall.  There was no music nor flowers except for the corsages worn by the men and a bouquet carried by one of the women. But what the weddings lacked in trappings was more than made up for in high drama and heartfelt celebration.
  Kris Perry and Sandy Stier and Paul Katami and Jeff Zarrillo, both couples together for more than a decade, had to go to the U.S. Supreme Court to win the right to get married in their home state of California. Twice, the people of their state had voted that they could not wed: in 2000 and then again in 2008. They sued in federal court for the right to marry against strong doubts that they could win and fears that a loss would set their cause back.
  The path to marriage was cleared by an ambiguous ruling from the Supreme Court on Wednesday [June 26] and a sudden decision by the Ninth U.S. Circuit Court of Appeals on Friday afternoon to lift the judicial order that had kept them in legal limbo despite two lower-court victories.
  With all that, government officials enlisted to perform the ceremony — California Attorney General Kamala Harris in San Francisco and Mayor Antonio Villaraigosa in Los Angeles —  naturally emphasized the long struggle as the couples prepared to exchange vows. “Today, their wait is finally over,” Harris said as TV cameras captured the scene with Perry and Stier before her. Some 90 minutes later, Villaraigosa echoed the point with Katami and Zarrillo beaming before him. “Today, your wait is finally over,” he said.
  For all of the excitement of the week, however, the wait is not over for most of the gay and lesbian couples in the United States. Two Supreme Court decisions pushed the fight for marriage equality ahead by only a couple of steps and only by the narrowest of margins.
  The court’s 5-4 decision in United States v. Windsor to strike down the federal Defense of Marriage Act took the federal government out of the business of discriminating against legally married same-sex couples. But it has no direct impact on the laws now in 36 states that bar gay and lesbian couples from being wed. In Hollingsworth v. Perry, a different 5-4 majority allowed California’s Proposition 8 to die at the hands of a now-retired, gay-partnered federal judge in San Francisco. But the justices made no comment on the plea by the lawyers for the two couples to constitutionalize marriage rights for gays and lesbians nationwide.
  The court’s rhetoric in Windsor may set the stage for that to happen, but not in the immediate future. In his opinion for the majority, Justice Anthony M. Kennedy based the decision on federalism grounds. DOMA, he said, departed from the federal government’s traditional deference to the states on marriage law. New York or any other state, he reasoned, was free to decide on its own whether to grant legal recognition to same-sex couples.
  In reaching that conclusion, Kennedy emphasized that a state’s decision to allow same-sex couples to marry “conferred upon them a dignity and status of immense import.” Kennedy rejected DOMA without even acknowledging the possible reasons for Congress to have enacted it. “[N]o legitimate purpose,” he wrote, “overcomes the purpose and effect to disparage and injure those whom the State, through its marriage laws, sought to protect in personhood and dignity.
  For good measure, Kennedy forcefully rejected the argument from opponents that gay marriage is bad for the kids. To the contrary, Kennedy explained, barring gay or lesbian couples from getting married “humiliates the tens of thousands of children now being raised by same-sex couples” and makes it hard for them to understand “the integrity and closeness of their own family.”
   The court’s four liberal justices — Ginsburg, Breyer, Sotomayor, and Kagan — joined Kennedy’s opinion with no further comment. In an appearance at the Aspen Institute on Saturday, however, Kagan hinted at the ruling’s potential impact by suggesting that in her view moral disapproval is no adequate basis for legislation at either the federal or state level.
  The DOMA ruling leaves a host of issues for government and private lawyers to work out — chiefly, how to define the federal rights of the gay and lesbian couples who live in or move to states that do not recognize their marriages. Federal law traditionally defines marriage based on where a couple lives, not where they came from. After having urged the court to strike down DOMA, the Obama administration must now work through a web of laws and regulations to make federal benefits a reality for legally married same-sex couples.
  In California, gay marriage opponents tried to gum up the works by asking the Supreme Court on Saturday to override the Ninth Circuit’s action to allow same-sex weddings to proceed. Kennedy, supervising justice for the circuit, rejected the move on Sunday. The brief skirmish left California bursting with gay pride and scores of couples pledging to love and comfort, have and hold, honor and respect, for the rest of their lives. “I don’t know about you,” Villaraigosa said as he ended the ceremony for Paul and Jeff, “but I got goose bumps.” 

Thursday, June 27, 2013

Limited Rulings for Gay Marriage End Court's Term

             The Supreme Court handed gay marriage supporters two important but limited victories on Wednesday [June 26] as it ended a momentous term marked by split-personality decisions on racial justice and criminal law and a string of victories for business interests.
              By a 5-4 vote, the Court struck down the federal Defense of Marriage Act (DOMA), the 1996 law that barred federal marriage-based benefits for gay and lesbian couples even if legally married in their home states.
              A different 5-4 majority appears to have set the stage for marriage rights for gay and lesbian couples in California by dismissing on legal grounds an effort by gay marriage opponents to reinstate the ban approved by voters in 2008 as Proposition 8.
              The two rulings on gay-marriage cases were announced with high drama to a packed courtroom as hundreds of gay marriage supporters filled the sidewalk in front of and across the street from the Supreme Court building. 
              Speaking for a majority that included the court’s four liberals, Justice Anthony M. Kennedy said DOMA served “no legitimate purpose” other than to classify their unions as a “second-tier marriage.” On that basis, he said the law violated the due process and equal protection principles imposed on the federal government under the Fifth Amendment (United States v. Windsor). 
              In a bitter dissent that he emphasized by reading from the bench, Justice Antonin Scalia accused the majority of “a judicial distortion” of the democratic debate on the issue. “The Court has cheated both sides, robbing the winners of an honest victory and the losers of the peace that comes from a fair defeat,” he said. “We owed both of them better.”
             Three other conservatives dissented — Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. — but only Thomas joined the bulk of Scalia’s opinion. Roberts argued only that the Court should not have decided the case because the Obama administration was no longer defending the law; he expressed no view on gay marriage.
              Kennedy stressed that the ruling’s impact was “confined” to those 12 states that have recognized marriage rights for gay and lesbian couples. In his separate dissent, Roberts emphasized that the decision left for future cases whether gay marriage bans — on the books in 37 states — are constitutional. New Mexico appears to be the only state with no clear law on the issue. 
              In a second decision, the Court ruled that supporters of Proposition 8 had no legal standing to appeal the 2012 ruling by the Ninth U.S. Circuit Court of Appeals to strike down the voter-approved measure reversing a California Supreme Court decision issued six months earlier. The state’s Democratic governor, Jerry Brown, and Democratic attorney general, Karmala Harris, refused to defend the initiative in court.
            Speaking for a cross-ideological majority, Roberts said the Prop 8 supporters lacked the “concrete and particularized injury” needed to allow them to litigate it in federal court. He was joined by fellow conservative Scalia and liberals Ruth Bader Ginsburg, Stephen G. Breyer, and Elena Kagan (Hollingsworth v. Perry).
           Dissenting, Kennedy warned that the ruling would undermine the initiative process. Giving state officials a veto over legal defense of an initiative “will erode one of the cornerstones of the state’s governmental structure,” Kennedy wrote. He was joined by conservatives Thomas and Alito and liberal Sonia Sotomayor. 
            Despite the limited nature of the rulings, gay marriage supporters from President Obama down celebrated the decisions. Obama personally placed congratulatory calls to the winning plaintiffs from Air Force one: New York City widow Edith Windsor, who was stuck with a $363,000 estate tax bill under DOMA after the death of her wife, Thea Spyer; and the two California couples who challenged Prop 8 after it had been upheld in state courts: Kristin Perry and Sandra Stier and Paul Katami and Jeffrey Zarrillo.
           The ruling apparently ensures that Windsor, now 84, will get the tax refund she claimed, with interest. The two California couples will also be allowed to marry, but California officials and Prop 8 proponents are disagreeing over the further impact of the decision. 
            The Supreme Court ruling vacated — or wiped out — the Ninth Circuit’s decision and ordered that court to dismiss the Prop 8 supporters’ appeal. That leaves in place the injunction issued by U.S. District Court Judge Vaughn Walker a year earlier. 
            Kamala Harris, the state attorney general, says Walker’s injunction applies statewide to all county officials. Brown echoed that view on Wednesday in instructing county officials to issue marriage licenses to same-sex couples on request. Prop 8 supporters said Wednesday that Walker’s ruling applied only to the four plaintiffs and Prop 8 remains the law in California. The Ninth Circuit said it would issue no orders for 25 days, the time period for a losing party to ask the Supreme Court for a rehearing.
             The two rulings, along with a relatively decision on federal criminal law, ended a busy two months at the Court that saw 39 decisions issued, almost half of the total number for the term: 79. Out of the 73 cases decided after argument, an unofficial count shows 33 came on unanimous votes (45 percent) with 23 decided by five-justice majorities (32 percent). The percentage of unanimous decisions is the second highest in Roberts’ eight years as chief justice; the Court ruled unanimously in 49 percent of its argued decisions in the 2005-2006 term, Roberts’ first.
              Earlier in the week, the Court on Tuesday had cheered political conservatives and angered liberals and traditional civil rights groups with a 5-4 decision striking down a key provision of the Voting Rights Act of 1965 (Shelby County v. Holder). The ruling struck down as outdated the formula used for determining which states and localities are subject to the act’s preclearance provision, which requires approval for election law changes by the Justice Department or a federal court in Washington
              The day before, the Court left both liberals and conservatives claiming a measure of victory in a decision reaffirming the right of universities to use race as a factor in admissions decisions but setting a somewhat higher burden to justify such policies (Fisher v. University of Texas). The ruling sent back to the Fifth U.S. Circuit Court of Appeals a challenge to policies at the University of Texas’s flagship campus in Austin. Advocates on opposing sides differed on the likely result of the remand. 
              Along with the rulings on DOMA and the Voting Rights Act, the Court also held a third federal law unconstitutional: a provision of a 2003 law requiring groups seeking anti-HIV/AIDS funding to adopt policies opposing prostitution and sex trafficking. Roberts wrote for a 6-2 majority in holding the law amounted to an unconstitutional infringement of freedom of speech (Agency for International Development v. Alliance for Open Society). Under Roberts, the Court has issued 12 rulings in eight years striking down federal laws. 
              In criminal law, the Court backed law enforcement by upholding the authority to take DNA samples from arrestees to investigate unsolved crimes (Maryland v. King) but favored suspects’ rights by refusing blanket approval for taking a blood test from drunken driving suspects without a judicial warrant (Missouri v. McNeely). In an important decision for federal courts, the justices ruled that juries, not judges, must make any factual findings needed to raise a defendant’s mandatory minimum sentence (Alleyne v. United States).  
              The string of pro-business rulings included two decisions on Monday [June 24] limiting workers’ ability to prevail in job discrimination suits under Title VII of the Civil Rights Act of 1965. In one decision, the Court limited the definition of “supervisor” used in determining whether an employer can be held responsible for racial or sexual harassment by an employee’s coworker (Vance v. Ball State University). In a second, the Court raised the burden of proof for an employee blaming an adverse employment decision on retaliation for complaining about alleged discrimination (University of Texas Southwestern Center v. Nassar).  
              Other pro-business decisions backed enforcement of class waivers in arbitration (American Express v. Italian Colors Restaurant), required more concrete evidence on damages in class actions (Comcast Corp. v. Behrend), and blocked a class action if the named plaintiff is fully compensated ( Genesis Healthcare Corp. v. Symczyk).
             In one other pro-business decision, the Court generally barred suits in U.S. courts for atrocities committed abroad by foreign defendants against foreign victims. The ruling dismissed a suit by Nigerian refugees now living in the United States against the Dutch-English oil company for allegedly aiding Nigeria’s military dictatorship in the 1990s in a brutal putdown of protests against oil drilling in the Niger delta. All nine justices agreed on the result, but four liberal justices would have allowed some such suits if U.S. interests were involved (Kiobel v. Royal Dutch Petroleum Co.).



Sunday, June 23, 2013

Conservative Justices United in Cutting Back Civil Litigation

  Update: The Supreme Court issued two more rulings today [June 24] that cut back on civil litigation, this time in employment suits brought under Title VII of the Civil Rights Act of 1964. In Vance v. Ball State University, the Court made it harder for an employee to hold an employer responsible for harassment by a mid-level supervisor, one with no hiring or firing authority. In University of Texas Southwest Center v. Nassar, the Court made it harder for an employee to win a retaliation complaint against an employer. Both decisions came on 5-4 votes, divided along conservative-liberal lines. Ginsburg emphasized her dissent for the liberal bloc by reading portions from the bench.

  The Supreme Court’s conservatives — Roberts, Scalia, Kennedy, Thomas, and Alito — are not the monolithic bloc often depicted. Roberts and Kennedy sometimes line up with the liberal justices on First Amendment issues. Scalia often breaks from the conservatives on Fourth Amendment issues. But the five are quite consistently together in voting to cut back legal remedies in civil litigation.
    Five of the five-vote decisions so far this term have pitted the conservatives against the four liberal justices in rulings that limited civil lawsuits – by consumers, workers, opponents of government wiretapping, and victims of atrocities committed abroad. In the most recent, the Court last week [June 20] torpedoed a federal antitrust complaint against American Express for allegedly using its monopoly position in corporate credit cards to force merchants to pay the high fees charged for its mass-market consumer cards.
  The Court’s 5-3 decision in American Express v. Italian Colors Restaurant held the plaintiff, a small Italian restaurant in Oakland, California, to a one-sided arbitration agreement that blocked it from joining with other merchants to press the case. The three liberal dissenters – with Sotomayor recused -- rightly said the ruling made it impossible as a practical matter to pursue the complaint.
    With the court’s biggest cases still pending — gay marriage, affirmative action, voting rights — the decision was a distraction for most court watchers and the general public. But corporate lawyers took note. They hailed the decision as a victory against run-amok litigation even as public interest groups blasted the ruling — in the words of the group Public Justice — as “the worst Supreme Court arbitration decision ever.”
    The case represents the latest setback for merchants in a long fight against American Express’s “Honor All Cards” policy. American Express has an effective monopoly on corporate credit cards. As a result, businesses that serve corporate customers are effectively forced to honor American Express’s consumer credit cards too even though the service charges are 30 percent higher than those for competing cards.
    In antitrust terms, American Express’s policy is a “tying arrangement” – conditioning the use or purchase of one product or service on the use or purchase of another. Tying arrangements can be legal or not depending on the company’s market power for the particular good or service and the effect of the arrangement on competition.
   Those are issues for a court to sort out and rule on, but the evidence needed costs real money. An expert report in this case was likely to cost between several hundred thousand and one million dollars. Italian Colors’ potential recovery was nowhere near that much: around $38,000. No economically rational plaintiff would bring that case.
   A class action on behalf of all similarly situated plaintiffs — either in court or in arbitration — solves the financing problem by allowing costs to be shared and by offering the prospect of a big recovery. But American Express made sure that was not going to happen. American Express’s agreement with merchants requires all disputes to be resolved in arbitration and on an individual rather than classwide basis. The agreement goes even further, as Justice Elena Kagan pointed out in her dissent. A confidentiality agreement prevented any informal cooperation with other merchants; and a merchant could not recover expenses from American Express even if successful.
   The Supreme Court conservatives enforce arbitration agreements, even with onerous terms like those, on the ground that that is what Congress intended when it passed the Federal Arbitration Act back in 1923. The justices apparently indulge the fiction that these fine-print agreements are voluntary contracts. The federal appeals court in New York City looked at these terms and said, in short, no way. It relied on a doctrine in Supreme Court precedents that allow agreements to be invalidated if they prevent the “effective vindication” of a federal statutory right.
   For the Supreme Court majority, however, Justice Antonin Scalia was not buying it. “[T]he fact that it is not worth the expense involved in proving a statutory remedy does not constitute the elimination of the right to pursue that remedy,” Scalia wrote in the key passage.
   Kagan accurately summed up the result. “The monopolist gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse,” she wrote. The message from the Court, she added, is quite simple: “Too darn bad.”
     Two business lawyers briefing reporters at a U.S. Chamber of Commerce-sponsored event the next day applauded the ruling and disputed Kagan’s dire assessment. Theodore Boutrous, victorious lawyer two terms ago in defanging the big sex discrimination case against Wal-Mart, insisted that the Justice Department and the Federal Trade Commission could bear the load on antitrust cases. “The notion that we need private lawyers to bring these cases is wrong,” he said. Kannon Shanmugam joined in debunking class action litigation in general. “What Justice Kagan doesn’t appreciate is that these cases are lawyer-driven,” he said.
    Perhaps, but Congress approved Rule 23, the class action rule in the Federal Rules of Civil Procedure, to allow some forms of mass litigation to ensure effective vindication of legal rights. Brian Fitzpatrick, a civil litigation expert at Vanderbilt Law School, said the latest decision continued a series of Roberts Court rulings that allow companies to use arbitration to protect themselves from class actions. “There is little future” for class actions, he warned.

Sunday, June 16, 2013

A Needed Debate On Surveillance Programs

   Edward Snowden lied about his salary: $122,000 per year, not $200,000. He probably puffed up some of the other things he has said over the past week. He violated federal law by disclosing classified information. And he forfeited the status of hero by fleeing the country instead of staying in the United States to face the consequences of his civil disobedience.
   Journalists, however, do not have the luxury of dealing only with sources who are pure of heart and noble in motive. Sources typically come with axes to grind and flaws to conceal. Snowden and his flaws are part of the story of the last two weeks, but the real story is what he has disclosed: government monitoring of telephone calls and e-mails wider than previously understood with supposed privacy safeguards even more secret than the surveillance itself.
    Snowden, who will turn 30 on Friday [June 21], unmasked himself last week as the source of the extraordinary disclosures about the super-secret surveillance by the super-secret National Security Agency (NSA) published a few days earlier in the British newspaper The Guardian and then in The Washington Post. The story of the leak is both mundane — Did this low-level NSA contractor really walk out of Booz Allen with all these documents on a thumb drive? — and tawdry. The computer geek high-school dropout apparently played blogger and Guardian contributor Glenn Greenwald and the Post alumnus Barton Gellman against each other to maximize the media splash.
     Putting Snowden to the side, here is what Americans know now that they did not know before, based in part on a three-page
by the Brennan Center for Justice:
     * The NSA has been secretly collecting phone records of millions of Americans since 2006 under orders issued by the super-secret Foreign Intelligence Surveillance Court (FISC) at the request of the FBI under the supposed authority of section 215 of the post-9/11 USA PATRIOT Act. Snowden disclosed one such court order issued to Verizon; Gellman reports in the Post today [June 16] that the court has issued similar orders for other large phone companies, including Bell South and AT&T.
     * The NSA has also obtained what the Brennan Center calls “unprecedented access” to data processed by nine leading U.S. internet companies, including Google, Facebook, Skype, and Apple, thanks to a computer network named PRISM. Stories about the program prompted James Clapper, the director of national intelligence, to put out an extraordinary three-page
fact sheet
that stresses that the program is aimed at foreign targets and is carried out under orders issued by the FISC.
     Clapper’s reassurances in the fact sheet and elsewhere must be considered in the light of what went before: his outright denial before the Senate Intelligence Committee in March that the NSA was collecting “any type of data at all on millions of Americans.” Clapper now calls his reply — “No, sir. Not wittingly” — “the least untruthful” answer he could have given. Sen. Ron Wyden, the Oregon Democrat and surveillance critic who posed the question, avoids calling the answer a lie. Instead, Wyden says merely that Americans are entitled to “straight answers to direct questions” about domestic surveillance.
     Wyden and fellow Democrat Mark Udall of Colorado have been raising alarms about the surveillance program for a while from their handcuffed positions as Intelligence Committee members bound by the committee’s secrecy rules. They are skunks at the garden party, however. Democratic Chair Dianne Feinstein of California and Republican vice chair Saxbe Chambliss of Georgia have taken to the microphones and news programs ever since the first disclosures to insist that the surveillance program is as effective and necessary as it is legal and constitutional.
     The efficacy of congressional oversight is further undermined by the number of senators and representatives who have professed surprise at the scope of the surveillance programs in the past two weeks. As one example, Rep. James Sensenbrenner, Republican of Wisconsin and one of the authors of the PATRIOT Act, says the telephone monitoring goes beyond what the law authorizes. “How can every call that every American makes or receives be relevant to a specific investigation?” Sensenbrenner asked in an op-ed in The Guardian.
     In Gellman’s telling, the validity of the orders turns on the Foreign Intelligence Surveillance Court’s pivotal decision on March 24, 2006, to expand the “business records” that the government could obtain if “relevant” to a particular terrorism investigation. “Henceforth, the court ruled, it would define the relevant business records as the entirety of a telephone company’s call database,” Gellman explains. The substance and the legal reasoning of that order, however, are secret — just like virtually everything the court does.
     That secrecy casts doubt on the claimed efficacy of judicial oversight of the surveillance programs. So too does the composition of the court. As I was first to point out, all but one of the court’s 11 members are Republican-appointed judges, selected in secret by Chief Justice John G. Roberts Jr., himself a Republican appointee who in eight terms has consistently voted for the government in national security cases. It is no surprise that the government has an all-but-perfect record before the court.
     President Obama says he welcomes the debate over the surveillance programs even as the Justice Department is studying what charges to bring against Snowden. Whatever happens to Snowden, that debate should continue.

Sunday, June 9, 2013

Scalia's Impassioned Dissent on DNA Sampling

    Like the proverbial stopped clock, Justice Antonin Scalia has to be right sometimes. And he was very right in his impassioned dissent last week [June 3] from the Supreme Court’s decision allowing police to collect DNA samples from arrestees for the purpose of investigating unsolved crimes.
    The court’s 5-4 ruling in Maryland v. King found no Fourth Amendment violation in a police practice already allowed in 28 states and likely now to spread to the others. The majority opinion by Justice Anthony M. Kennedy recognized that swabbing an arrestee’s inner cheek for a DNA sample amounts to a search subject to Fourth Amendment limitations. But Kennedy said the “minimal” bodily intrusion was justified by its value in establishing the arrestee’s identity, making bail determinations, and linking an arrestee to any unsolved crimes.
 As Scalia pointed out, however, the majority discarded the most important of Fourth Amendment rules: no searches for evidence of crime without an individualized suspicion that the target may be guilty of the offense.  And he demolished the majority’s make-weight rationales for upholding the practice in the case at hand: the conviction of a Maryland man, Alonzo King Jr., for a rape committed six years before his April 2009 arrest on a minor assault charge.
    Scalia noted that King’s identity was never in doubt, nor could DNA evidence confirm it. Nor was the DNA evidence used, or even available, when King was initially released on bail. The real purpose of collecting the DNA sample was to find out whether King could be linked to any of the cold cases in a nationwide database of crime scene evidence. The state’s claimed justification on other grounds, Scalia said, “taxes the credulity of the credulous.” 
    In the 30 years since DNA evidence was first used in criminal cases, it has become recognized as the gold standard of identification: more accurate than fingerprinting. Prosecutors and law enforcement love DNA evidence because it can all but conclusively tie a suspect or defendant to crime scene evidence — in particular, bodily fluids from offenders in rape cases. But criminal defense and civil liberties advocates love DNA evidence as well because it can just as conclusively show that a defendant was wrongfully convicted, that someone else committed the crime.
    Law enforcement groups and officials point to hundreds of cold cases solved with DNA evidence from convicted offenders and even more since states began collecting samples from arrestees as well. In the oral argument in the King case, Katherine Winfree, Maryland’s chief deputy state attorney general, claimed 75 prosecutions and 42 convictions since 2009 when persons arrested for serious offenses became subject to DNA sampling.
    Justices in the majority found the number of solved crimes impressive. “Lots of murders, lots of rapes that can be solved,” Justice Samuel A. Alito Jr. remarked. But Scalia mocked the state’s claim. “If you conducted a lot of unconstitutional searches and seizures,” he told Winfree, “you’d get more convictions too.”
    The three liberal justices who joined Scalia’s dissent — Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan — also poked holes in Winfree’s points during the oral argument. The court’s other liberal, Stephen G. Breyer, joined the majority, in line with the pragmatic approach he has taken in other Fourth Amendment cases. Also in the majority was Chief Justice John G. Roberts Jr., even though he had worried during the oral argument about extending DNA sampling to, for example, traffic offenders.
    Scalia picked up the point in his dissent. There is no principle, he said, for limiting DNA samples to arrestees in serious cases. The line drawn, he warned, will not hold. He envisioned an Orwellian future of collecting DNA samples from air travelers or even elementary school pupils.
    The history of DNA sampling corroborates Scalia’s fear. Collecting DNA samples from convicted offenders in a nationwide database was controversial when first proposed in the early 1990s, but Congress approved the project and courts upheld the practice. Collecting DNA samples from arrestees was controversial when Louisiana became the first state to do so in 1999. A commission appointed by the U.S. Justice Department opposed the practice, but it gradually took hold. At the Supreme Court, the Obama administration and all 49 other states joined Maryland in urging the justices to allow it.
    Privacy took a beating last week in another context with disclosures that the government has been collecting vast amounts of information about telephone calls and emails from Americans in a secret program instituted under the Bush administration and continued and even expanded under President Obama. Civil liberties and privacy advocates were indignant, but Obama along with the Democratic and Republican leaders of the Senate and House Intelligence Committees insisted the programs were lawful and valuable counterterrorism tools.
    Scalia himself has been no consistent guardian of privacy. He wrote the 6-3 decision in 1995 that allows random drug testing of high school athletes (Veronia School District v. Acton) and joined the later ruling extending drug screening to students in any extracurricular activities (Board of Education v. Earls, 2002). But Scalia waxed eloquent last week in invoking the spirit of the Framers in protesting expanded DNA sampling. “I doubt,” he wrote, “that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”

Monday, June 3, 2013

Holder Learning Needed Lesson in Leak Cases

      Attorney General Alberto Gonzales suggested back in May 2006 that the New York Times could be criminally prosecuted for disclosing the Bush administration’s previously secret warrantless electronic surveillance program. Gonzales may never have seriously intended to initiate the first such criminal prosecution of a U.S. newspaper, but the outcry from journalists and free-press advocates was quick and loud — and the idea was never pursued.
      The lesson of that episode should not have been lost on an attorney general who came to office as an anti-Gonzales serving under a president elected as an anti-Bush on, among other issues, government secrecy. But the lesson apparently was lost on Eric Holder, President Obama’s frequently embattled attorney general for the past five years.
      As attorney general, Holder signed off on an application for a search warrant that officially labeled Fox News chief Washington correspondent James Rosen a possible criminal for having reported classified information. Holder approved the legal filing so casually, it would appear, that he all but forgot about it until the Washington Post brought it to light.
     Rosen came under investigation as part of the Obama administration’s aggressive efforts to root out government leakers, apparently after a State Department adviser slipped him a classified intelligence assessment about North Korea back in 2010. A second leaker investigation currently under way stems from the Associated Press’s report in May 2012 of the CIA’s foiling of an al Qaeda airplane bomb plot.
     In both cases, the Justice Department has gone after reporters’ telephone records and e-mails to try to identify the inside-government leakers. News organizations and free-press groups say the actions are making it harder for reporters to do their jobs and violate even the limited safeguards for newsgathering now in place.
     The administration is defending the investigations and the tactics employed. The AP story supposedly exposed a U.S. undercover agent inside al Qaeda. The Fox News report is said to have similarly tipped off the North Koreans that the United States had a mole inside the Pyongyang regime. In both cases, the administration is arguing that reporters’ records were examined only after investigators had exhausted other leads to try to find the leakers.
     The investigations would have touched the news organizations’ nerves in any case, but the details that have emerged suggest FBI agents vacuumed up reporters’ records indiscriminately. In the AP investigation, the Justice Department secretly obtained telephone records for more than 20 separate telephone lines assigned to AP and its journalists, including general AP office numbers in New York, Washington, and Hartford, Conn., and the AP’s main number in the House of Representatives press gallery.
     Justice Department guidelines call for prior notice to a news organization before telephone records are seized unless notice would jeopardize the investigation. The AP was notified in this case only after the fact in a letter dated Friday, May 10. In a letter of protest sent the next Monday, Gary Pruitt, the AP’s president and CEO, said there could be “no possible justification for the overbroad collection” of reporters’ telephone logs.
     Justice Department rules require that any subpoena for reporters’ records be approved by the attorney general. Holder recused himself from the AP investigation — reportedly because he was one of the government officials interviewed about the leak. The subpoena for the AP records was instead approved by James Cole, the deputy attorney general.
      The earlier investigation of Rosen, Fox News’ chief Washington correspondent, came to light in the aftermath of the news of the AP leak probe. The Post’s story, published May 20, disclosed that in addition to obtaining a search warrant for Rosen’s personal e-mails, investigators used security badge access records to track his comings and goings at the State Department. They also traced the timing of Rosen’s calls with the State Department security adviser, Stephen Jin-Woo Kim, suspected of sharing the classified report.
     The FBI agent’s affidavit supporting the search warrant application does not name Rosen, the Post, but describes the unidentified reporters as having broken federal law “at the very least, either as an aider, abettor and/or co-conspirator.” The Post story did not mention Holder, but the department later confirmed NBC News’ report that Holder approved the application. Before the Post story broke, however, Holder had disclaimed any interest in prosecuting journalists for publishing classified information. “That is not something that I have ever been involved in or would think would be a wise policy," Holder told the House Judiciary Committee on May 15.
     Holder’s answer may not be perjury, as some Republican lawmakers are now suggesting, but it is at least lawyer-like in the most unfavorable sense of that phrase. And it gives Republicans who have had Holder in their sights from day one a powerful talking point even as free press-minded Democrats are loath to vigorously defend him.
     At President Obama’s direction, Holder now has a July 12 deadline to come up with recommendations on how better to safeguard newsgathering in leak investigations. Holder tried to reassure news media executives in an off-the-record meeting last week [May 30] and is reported to be considering various steps to tighten the existing rules and procedures. Any new safeguards will be effective, however, only to the extent that Holder or his successors approach leak investigations with more care than he and his department have shown to date.

Sunday, June 2, 2013

Supreme Court Rights Rulings Due This Month

      The U.S. Supreme Court is set to rule by the end of this month on closely watched cases that will affect marriage rights for gays and lesbians, voting rights for African Americans and Latinos and opportunities for minority applicants in public colleges and graduate schools.
      In two of those cases, the Roberts Court is being asked directly to limit or even overrule long-standing precedents upholding measures to remedy discrimination against or increase opportunities for African Americans in particular and other disadvantaged minorities. The gay marriage cases represent the court’s first full airing of those issues after having dismissed a plea by a gay couple in 1972 with a single sentence and without oral argument.
      The justices start the final month of the 2012-2013 term with 49 decisions under their belts and 28 argued cases yet to be decided. Barring unanticipated difficulties, the court will release its final decisions during the week of June 24, allowing the justices to break for the summer until returning in late September to gear up for the next term.
      Eleven of the cases yet to be decided were argued before the justices as recently as April, but the others go back further — as far as the court’s first sitting in October. The accelerated pace of decisions in June is normal, though the workload can vary from term to term. The court issued 32 decisions in June 2011, but only 19 in June 2012.
      The longest pending case, argued Oct.10, will represent the Roberts Court’s first direct ruling on the constitutionality of racial preferences for minority applicants in public universities. In Fisher v. University of Texas, Abigail Fisher, an unsuccessful white applicant for admission to the university’s flagship Austin campus, is challenging the school’s use of an applicant’s race as one factor in filling a small fraction of seats in the incoming freshman class.
      The university contends that its system satisfies the conditions that the Supreme Court established for race-conscious admissions in 2003 in a case involving the University of Michigan Law School, Grutter v. Bollinger. Lawyers for Fisher argue that UT’s use of race goes beyond what Grutter allows, but they also invited the court to consider overruling Grutter if necessary to force new admissions policies for the Austin campus.
      Justice Sandra Day O’Connor, now retired, wrote the majority opinion and cast the decisive vote in the Grutter case. Her successor, Samuel A. Alito Jr., has voted consistently to limit race-conscious policies in his seven-and-a-half terms on the court.
      Justice Anthony M. Kennedy, who has voted against racial preferences in previous rulings, was widely seen as having the pivotal vote in the new case both before and after arguments. It is all but certain that he is writing the majority opinion in the case; he is the only justice with no majority opinion so far from the 10 cases argued in October. His questions during the argument suggested he is uncomfortable with the UT admissions system but reluctant to completely bar use of race in admissions policies.
      A second case, Shelby County v. Holder, asks the Roberts Court to strike down a key provision of the federal Voting Rights Act that has been used to break down racial barriers to voting in parts of the country with a history of racial discrimination in voting. The provision — section 5 — requires several states in the Deep South and parts of other states to obtain “preclearance” from the Justice Department or a federal court in Washington before making any change in election law or procedures.
      A conservative public interest law firm, the Project for Fair Representation, is helping challenge the provision in a suit brought by Shelby County, Ala. Lawyers for the county and other conservative interest groups argue that current conditions in the South no longer justify singling out southern states. The Obama administration, backed by traditional civil rights groups, argues that Congress had adequate grounds for re-enacting section 5 largely intact when it extended the Voting Rights Act in 2006 for another 25 years.
      As in Fisher, Kennedy is widely seen as having the decisive vote in a case likely to divide the other eight justices along conservative-liberal lines. And, as in Fisher, Kennedy’s questions during the oral argument on Feb. 27 give only ambiguous clues about his likely vote.
      Kennedy may also have the decisive votes in one or both of the gay marriage cases argued in late March. In United States v. Windsor, the court is considering the constitutionality of the federal Defense of Marriage Act (DOMA), the 1996 laws that bars federal marriage-based benefits to same-sex couples even if they are legally married in their home states. In the second case, Hollingsworth v. Perry, the court is considering the validity of California’s Proposition 8, the 2008 ballot measure that restored the state’s ban on same-sex marriage following the state supreme court’s decision six months earlier granting marriage rights to gay and lesbian couples.
      Gay rights advocates won lower court rulings in both cases. The federal appeals court in New York City ruled DOMA unconstitutional in October in a case brought by a lesbian widow, Edith Windsor, who was hit with a $360,000 estate-related tax bill that would have not been levied on the surviving spouse of an opposite-sex couple. The Obama administration is supporting Windsor’s position, while the law is being defended by a Republican-controlled arm of the House of Representatives: the Bipartisan Legal Advisory Group.
      In a similar situation, the state of California is not defending the constitutionality of Proposition 8. Instead, the law is being defended by sponsors of the ballot measure, which was approved with about 52 percent of the vote.
      The unusual posture in the two cases poses procedural questions about the propriety of the court’s ruling on the merits in either or both. Court watchers predicted after argument that the justices are likely to rule on DOMA and likely to hold it unconstitutional. Many court watchers thought the justices are less likely to issue a substantive ruling on Proposition 8. If the justices dismiss the Prop 8 supporters’ appeal without a ruling, the action would leave in place the ruling by the federal appeals court in San Francisco in February 2012 that struck it down.
      The court’s other remaining cases include more than a few of only limited interest, but some will create waves and make headlines when they are decided. Here are some of those:
      Vance v. Ball State University, argued Nov. 26: Is an employer liable for sexual harassment by a supervisor who has no hiring or firing authority? The federal appeals court in Chicago said no.
      Maryland v. King, argued Feb. 26: Can police take DNA samples from someone at time of arrest? The Maryland Court of Appeals said no.
      Arizona v. Inter Tribal Council of Arizona, argued March 18: Can a state add proof of citizenship requirements for voting beyond those set in federal law? The federal appeals court in San Francisco said no.
      Association for Molecular Pathology v. Myriad Genetics, argued April 15: Are the patents issued for breast-cancer genes valid? The federal appeals court in New York City said yes.
      Salinas v. Texas, argued April 17: Can a prosecutor comment at trial on a defendant’s pre-arrest refusal to answer questions? The Texas Court of Criminal Appeals said yes.
      The court has scheduled decision release days on Mondays beginning June 3. It is likely to add midweek decision days during the final two weeks of the month.