Wednesday, December 24, 2014

On Marriage, "Simple Justice" Only a Matter of Time?

      The Supreme Court was no idle bystander in 1952 as school desegregation cases from five separate jurisdictions worked their way toward the nation’s highest tribunal. As Richard Kluger relates in his history Simple Justice, Chief Justice Fred M. Vinson personally called lawyers in cases from Delaware and the District of Columbia in the summer and early fall to suggest they file appeals with the court so that the cases could be consolidated with others already set for argument.
      The landmark decision in Brown v. Board of Education came nearly two years after those maneuverings following Vinson’s death and the masterly work by his successor, Chief Justice Earl Warren, to produce a unanimous ruling against legally enforced racial segregation. Sixty years later, the Supreme Court now seems on the verge of a similar landmark decision, also after deft maneuvering and legal delay, to recognize a constitutional right to marriage for same-sex couples.
      The Vinson Court was divided after oral arguments in the five cases in December 1952, but Kluger shows that a majority of the justices were ready immediately afterward to outlaw racial segregation and overrule the precedent that had sanctioned the practice, Plessy v. Ferguson (1896). One of the justices, Kentucky’s Stanley F. Reed, however, wanted to reaffirm Plessy; and three others — Vinson, Robert H. Jackson, and Tom C. Clark — preferred some kind of “wait-and-see approach.”
      The current justices were likewise divided during and after arguments in a pair of same-sex marriage cases in March 2013. The 5-4 majority in  United States v. Windsor (2013) favored same-sex couples by striking down the anti-gay Defense of Marriage Act (DOMA), but stopped short of recognizing a constitutional right to marriage for gay and lesbian couples. In the other case, Hollingsworth v. Perry (2013), a cross-ideological majority used a legal flaw to put off a direct ruling in the challenge to California’s Proposition 8.
      Three of the conservative justices, however, used their dissents in Windsor to make their views on the ultimate issue plain. Antonin Scalia, in an opinion joined by Clarence Thomas, said that limiting marriage to opposite-sex couples was justified by “moral disapproval” of same-sex relationships and by other “valid” rationales that he deemed so “boring” that he did not even list them. Separately, Samuel A. Alito Jr. said that the “heated debate” about same-sex marriage should be decided not in the courts but by “the people, acting through their elected representatives at both the federal and state levels.”
      Significantly, Chief Justice John G. Roberts Jr. kept his counsel on the issue. He dissented from the decision to strike down DOMA on both technical and substantive grounds, but he declined to join the sections in Scalia’s opinion defending same-sex marriage bans on their supposed merits.
      The Vinson Court put off the day of reckoning on racial segregation by asking for new arguments on the history of the Fourteenth Amendment, a ploy suggested by Justice Felix Frankfurter. Vinson’s death in October 1953 paved the way for Warren to preside over the rearguments in December and to guide the court into the unanimous decision handed down on May 17, 1954.
      A year-and-a-half of federal and state court decisions interpreting Windsor have provided the Roberts Court with more breathing space on the question of marriage equality. With near unanimity, lower courts have interpreted Justice Anthony M. Kennedy’s majority opinion in Windsor as fatally undermining the states’ arguments for limiting marriage to opposite-sex couples.
      Perversely, the gay rights victories put off a final resolution of the issue by a couple of months. When the justices gathered at the end of September, they decided not to hear appeals by states seeking to reinstate same-sex marriage bans that had been struck down in three federal circuits. In the three months since, the court has similarly allowed lower federal courts to bring same-sex marriage rights to other states, most recently in Florida. When the Florida ruling takes effect on Jan. 6, same-sex couples will be able to marry in a total of 36 states plus the District of Columbia.
      In November, however, the Sixth U.S. Circuit Court of Appeals upheld same-sex marriage bans enacted in four states: Kentucky, Michigan, Ohio, and Tennessee. Plaintiffs filed petitions for certiorari barely a week after, and three of the four states joined in urging the Supreme Court to issue a definitive ruling. The papers on the cases were distributed to the justices on Tuesday [Dec. 23] for them to consider at their Jan. 9 conference.
      In the normal course of events, the justices could agree that day or later in January to hear some or all of the cases, in time for arguments in April and a decision by the end of June. Conceivably, the justices could find some basis to push the issue to the next term, but any delay now would seem political rather than legal.
      Sixty years later, it seems inconceivable that the Supreme Court could have done anything in Brown other than outlaw racial segregation. The Roberts Court is unlikely to be unanimous on marriage rights: Scalia and Thomas have voted against allowing marriage rights to take effect on an interim basis. But the gay rights ruling that now seems only a matter of time may well strike future generations just as Brown does now as nothing more than “simple justice.”

Sunday, December 21, 2014

Justices ' Blind Eyes to Police Mistakes

      The brake light case brought out a bit of whimsy from Chief Justice John G. Roberts Jr. as he summarized the Supreme Court’s decision from the bench last week [Dec. 15]. Most people, Roberts surmised, would be surprised to learn that you only need one brake light in North Carolina — “even if you are from North Carolina.”
      The real issue in Heien v. North Carolina, however, was not brake lights, but the power that police are to be given under the law. And in a year when police conduct in the killing of civilians was a major national issue, the Supreme Court chose to give police more room for mistakes instead of stronger incentives to strictly follow the law.
      By an 8-1 vote, the court held that a police officer can stop someone for violating a non-law — and use any evidence found in a subsequent search for a later prosecution — as long as the officer’s mistake about the law was a reasonable one. In a sharp dissent, Justice Sonia Sotomayor argued that a police officer’s actions in such an instance should be judged based on “the actual state of the law,” not the officer’s mistaken understanding.
      The case began as a mundane traffic stop on Interstate 77 in Surry County, N.C., on the morning of April 29, 2009. Nicholas Heien was lying in the back seat of his car with friend, Maynor Javier Vasquez, driving. Patrolling the highway, Sgt. Matt Darisse, a Surry County sheriff’s deputy, thought Vasquez appeared stiff and nervous, decided to follow the car, and eventually pulled the car over after noticing one of the brake lights not working.
      After checking the registration, Darisse was about to let the men off with a warning, but he became suspicious when the two men gave inconsistent answers about their destination. Darisse asked to search the vehicle; the two men agreed; and Darisse found a baggie of cocaine in the side compartment of a duffle bag. Heien eventually pleaded guilty to attempted trafficking, but reserved the right to appeal on Fourth Amendment grounds.
      The Fourth Amendment prohibits not only an unreasonable search but also an unreasonable seizure. Despite the depictions on cop shows, police generally have no power to stop you on the street, or on the highway, unless they have reason to believe you are violating a law. Heien argued that Darisse had no authority for the traffic stop because North Carolina law requires only one working brake light, not two.
      This gap in the law might seem counterintuitive, but the “plain text” of the applicable statute requires only that a car be “equipped with a stop lamp on the rear of the vehicle” (emphasis added). The North Carolina Court of Appeals agreed with Heien’s interpretation, ruled Darisse’s stop of the vehicle “objectively unreasonable,” and ruled the drugs found in the subsequent search inadmissible.
      The North Carolina Supreme Court reinstated the conviction. Darisse had made a reasonable mistake, the state high court ruled. “An officer may make a mistake, including a mistake of law,” the court said, without violating the Fourth Amendment.
      The U.S. Supreme Court had long held that police can make reasonable mistakes of fact without violating the Fourth Amendment, but had never explicitly allowed that same discretion for mistakes of law. To Roberts, the answer was obvious. The Fourth Amendment prohibits only unreasonable police conduct, Roberts stressed, and reasonable police can make reasonable mistakes not only as to the facts but also as to the law.
      Roberts sought to qualify the holding. “The Fourth Amendment tolerates only reasonable mistakes,” he wrote, “and those mistakes — whether or fact or of law — must be objectively reasonable.” In a concurring opinion, liberal justices Elena Kagan and Ruth Bader Ginsburg emphasized the limitation. “[T]he government cannot defend an officer’s mistaken legal interpretation,” Kagan wrote, “on the ground that the officer was unaware of or untrained in the law.”
      Among the justices, only Sotomayor, a former assistant district attorney in New York City, has actual experience in criminal justice at the local level. In that world, police often make mistakes, sometimes deadly ones. And police already have a lot of leeway not only for reasonable mistakes of fact but also for pretextual stops. In Whren v. United States (1996) the court ruled, unanimously, that the Fourth Amendment allows police to stop a car for a routine traffic violation even if the stop was a pretext for a different purpose — in that case, drug enforcement.
      Sotomayor, attuned to the real-world consequences, said the court’s new decision would have the effect of “further eroding the Fourth Amendment’s protections of civil liberties in a context where that protection has already been worn down.” Giving police the power to stop a vehicle on the basis of a nonexistent law, she said, “significantly expands” their authority. The result, she said, is "bad for citizens” and “bad for police.”
      The police who have been in the news in recent days — in Ferguson, Mo.; New York City; and Cleveland, for example — give no confidence that this added discretion will be applied with care — or evenhandedly as between white and black civilians. Think as well about Maricopa County’s blustery anti-immigrant sheriff Joe Arpaio or anti-gay officers in un-gay friendly jurisdictions around the country. The courts stand between them and law-abiding citizens, but the Supreme Court forgot that role in its decision last week.

Thursday, December 11, 2014

Torture Report: Worse Than We Realized

      With Americans reeling from the shock of the September 11 terrorist attacks, President George W. Bush directed the Central Intelligence Agency (CIA) less than a week later to capture, detain, and interrogate those responsible for the attacks or possibly planning new ones. Two months later, CIA lawyers identified what they evidently regarded as a central issue.
      “A policy decision must be made with regard to U.S. use of torture,” the lawyers wrote in a Nov. 26 memo entitled, “Hostile Interrogations: Legal Considerations for C.I.A. officers.” The lawyers noted that “a novel application” of the recognized legal defense of necessity “could be used to avoid prosecution of U.S. officials who tortured to obtain information that saved many lives.”
      The memo came to light only this week [Dec. 9] as part of the 700-plus page report from the Senate Intelligence Committee issued after the committee’s six-year investigation of the CIA’s detention and interrogation policies. The committee’s majority Democrats disagreed with the Republican minority over the document’s import. Six of the panel’s GOP members noted in their minority views that the CIA lawyers went on to reject the hypothetical use of a necessity defense.
      Still, the memo shows that “torture” was on the table even before the CIA had fashioned or started to use the tactics that the committee majority says were even more brutal than already reported. Throughout the Bush administration’s remaining seven years in office, the “T” word was banished from public statements. Instead, administration officials crafted the Orwellian phrase “enhanced interrogation tactics” for practices such as waterboarding recognized as torture when used by other countries but apparently not by the United States.
      More than a decade later, CIA apologists still demur. On the PBS NewsHour [Dec. 10], former agency spokesman Bill Harlow rejected the T word in favor of the bureaucratic acronym “EITs.” But Intelligence Committee chair Dianne Feinstein, the California Democrat who has been if anything less critical of the CIA than warranted, finds no basis for ambiguity. “It is my personal conclusion,” Feinstein writes in the opening of the 526-page majority report, “that, under any common meaning of the term, CIA detainees were tortured.”
      The issue is more than semantics. Torture is prohibited by domestic and international law, without exception. The Justice Department’s Office of Legal Counsel’s infamous memo written by John Yoo contended that the president had powers as commander in chief to authorize the use of torture despite the law, but the memo was repudiated by the OLC’s later director, Jack Goldsmith. And apart from legal considerations, “torture” is harder to sell to the public than “enhanced interrogation tactics,” even if polls indicate public support for torture if needed to save lives.
      On that point, the Intelligence Committee majority is emphatic. The CIA’s interrogation tactics, the report concludes, did not save lives, thwart attacks, help capture high-value terrorists, or produce significant “actionable intelligence.” Feinstein, seven Democrats and Maine’s Democrat-caucusing-independent Angus King all subscribe to that proposition.
      Maine’s somewhat independent Republican Susan Collins joined in the majority report, but wrote in separate views that she finds it unknowable whether the interrogation tactics were or were not effective. The committee’s Republican vice chairman, Georgia Saxby Chambliss, and five other Republicans insist the evidence shows the “enhanced” interrogations did produce information essential in, among other things, capturing 9/11 mastermind Khalid Sheikh Mohammad and thwarting several plotted attacks.
      That debate, detailed in a New York Times graphic, will continue. Seemingly beyond dispute, however, is the Intelligence Committee’s finding that more detainees were tortured than previously reported — 39 in all — and that the tactics were more brutal than previously known. Readers with weak stomachs will want to skip the passages about the five detainees subjected to “rectal rehydration.” Bush himself was said to have flinched when told about a detainee who was chained to the ceiling of his cell and forced to urinate and defecate upon himself.
      Bush was never fully briefed on the program, however, according to the report. Nor were the House and Senate intelligence committees, which supposedly oversee the CIA. The agency kept the very existence of the interrogation tactics secret from Secretary of State Colin Powell and Defense Secretary Donald Rumsfeld, fearful of opposition, especially from Powell. Once the cover was blown by the Washington Post in late 2005, however, the agency worked with compliant media contacts to selectively leak information and misinformation to depict the program as a success.
      To top it all, the CIA managed the program with bureaucratic ineptitude. The military psychologists who designed the program — and received $81 million in fees for their company — knew nothing about al Qaeda or terrorism in general. Untrained interrogators were used, few records were kept, and some of those tortured were marginal figures at most. At the McLean headquarters, officials were often fuzzy on the details.
      As for accountability, that is not going to happen. The most damning evidence — the videotapes – were destroyed on orders from spymaster Jose Rodriguez, with no one prosecuted. The Justice Department reiterated this week that there is no basis for criminal prosecutions. The president who might have been subject to impeachment is out of office; the major architects of the program are out of government, comfortable in the private sector or academia. But the committee at the least has put down one marker. “This and future Administrations,” Feinstein writes, must “ensure that coercive interrogations practices are not used by our government again.”

Sunday, December 7, 2014

When Is a Facebook Rant a “True Threat?”

      With the Vietnam War escalating, teenager Robert Watts signaled his opposition to President Lyndon B. Johnson’s policies by telling a political rally that if drafted and forced to carry a rifle, “the first man I want to get in my sights is L.B.J.” The government took Watts’ jibe seriously enough to prosecute him under a broadly written federal law that makes it a crime to “knowingly and willfully” threaten the president.
      At the Supreme Court, however, the justices ruled, 6-3, that Watts was guilty only of “political hyperbole,” not a “true threat.” Watts’ statement, “taken in context,” had to be interpreted as constitutionally protected speech, the Court wrote in an unsigned opinion in Watts v. United States (1969).
      Fast forward more than 40 years to a bitter divorce in 2010 marked by seemingly violent Facebook rants by Anthony Elonis against, among others, his wife Tara and an FBI agent who had been monitoring Elonis’s Internet posts. Elonis was prosecuted under the general federal law against threats, convicted, and sentenced to 44 months in prison.
      On appeal to the Supreme Court, however, Elonis argued that his pseudonymous Facebook posts were “therapeutic” and not “true threats” at all. And his appeal in Elonis v. United States gained attention as a first-ever, high-level airing of how to apply free-speech rules to the new world of social media.
      Free-speech groups, including the American Civil Liberties Union and leading media organizations, filed briefs supporting Elonis’s appeal even while dissociating themselves from what the ACLU called Elonis’s “crude and offensive” postings. They warned that, in upholding Elonis’s conviction, the Third U.S. Circuit Court of Appeals had found no need for prosecutors to prove that he actually intended to threaten physical harm to his wife or the FBI agent.
      The free-speech concerns about the appeals court ruling may be well placed, but the Supreme Court ought not be misled into making Facebook a wild, wild West for violent postings. Social media need First Amendment breathing room, of course, but a smiley face or “LOL” is not enough to immunize what would be seen as a “true threat” if delivered in a face-to-face conversation, a telephone call, or an old-fashioned, written letter.
      Representing the government, deputy U.S. solicitor general Michael Dreeben rightly noted in the arguments last week [Dec. 1] that threats “cause harm and disruption to society and to the individuals who are targeted” even if they seem unlikely, or even impossible, to be carried out. Speakers should be presumed to understand the meaning of words they speak, Dreeben contended, and should be held “accountable for the consequences of those words.”
      Elonis’s postings clearly caused the kind of harm and disruption that Dreeben had in mind. After his wife obtained a “protection from abuse” order, Elonis asked on Facebook, “Is it thick enough to stop a bullet?” On the same day, he posted that he had “enough explosives to take care of the state police and the sheriff’s department.”
      The next day, Elonis appeared to threaten a mass shooting at the kindergarten class at a local school. The school reported the post to the FBI, which sent agent Denise Stevens to Elonis’s home the next day. Elonis refused to be interviewed and, later that day, suggested in a Facebook post that he would be strapped with a suicide bomb if she returned.
      Representing Elonis, Washington, D.C., appellate expert John Elwood argued that subjective intent was, and always has been, a necessary element of proof in a threat prosecution. But justices across the ideological spectrum questioned how, as a practical matter, the government could meet that burden. “How does one prove what’s in somebody else’s mind?” Justice Ruth Bader Ginsburg asked.
      Elwood answered that in the digital world there would be abundant evidence on a cell phone or computer of a speaker’s state of mind. But Chief Justice John G. Roberts Jr. was unconvinced. He noted Elonis’s contention that the posts were either therapy or rap-style artistry. “Based on your submission,” Roberts told Elonis’s lawyer, “all he has to say is either . . . it’s therapeutic, it’s a good thing I could do this, or it’s art.”
      Later, Justice Samuel A. Alito Jr. said Elwood’s argument amounted to “a roadmap for threatening a spouse and getting away with it.” “You put it in rhyme and put some stuff about the Internet on it,” Alito continued, “and you say, ‘I’m an aspiring rap artist.””
      Less pointedly, some justices voiced concerns about overregulating. Roberts, for example, acknowledged Elwood’s point that social media are a distinct “subculture” and teenagers in particular could be sent to jail for what Elwood called “ill-timed, sarcastic comments.” Justice Sonia Sotomayor noted to Dreeben that the court has been reluctant to create new “exceptions” to the First Amendment. But Dreeben countered that the existing rules are “not an exception” to the First Amendment but “part of the implementation.”
      Elonis has already served three years in prison, so the case is important mostly for the rule the justices will lay down. Social media already have more boorish language and conduct than needed. The Supreme Court needs to articulate a careful standard that can protect “true” political speech and satire on social media without giving free rein to those who would use the First Amendment as a license for threats of violence, laughing out loud through their posts.