Sunday, December 18, 2016

Supreme Court Should Invalidate Electoral College

      "The electoral college ought to have been struck from the Constitution or invalidated by the Supreme Court long ago," I argue in an op-ed published in theLos Angeles Times [Dec. 16]. "Donald Trump’s electoral college victory — despite Hillary Clinton’s lead of more than 2.5 million in the popular vote — is only the latest proof that it’s the wrong way to choose a president."
      My original submission was longer and more explicit in setting out the legal grounds and political rationale. Here, for your further consideration. I will have more to say in coming days on fixing the flaws in the United States' imperfect Constitution.
* * *

      The Electoral College is unconstitutional.
      It is unconstitutional because it was born out of a morally offensive political decision aimed at preserving the status of slavery in the South.
      It is unconstitutional because it has never functioned in the supposedly deliberative manner that its authors depicted in selling it to voters during the ratification debates.
      It is unconstitutional because it conflicts with the “one person, one vote” rule that the Supreme Court has applied for the past 50 years to elections for every other elective office in local, state or federal governments.
      It is unconstitutional because under current political conditions it does not operate as its defenders claim to incentivize presidential candidates to campaign in all 50 states, from the biggest to the smallest.
      And it falls to the Supreme Court to rule the system unconstitutional because its defects are safeguarded from a constitutional amendment by the effective veto power of the small states that supposedly benefit from the system.
      Start at the Constitutional Convention in Philadelphia in 1787, where Pennsylvania’s James Wilson proposed direct election of the president only to be shot down by the slave-owning Virginian James Madison. As Yale’s distinguished constitutional law scholar Akhil Amar has recently explained, Madison demurred because Northern states allowed voting more “diffusively” than states in the South.
     The South’s non-voting slaves would have counted for nothing in a popular-vote system. But slaves increased the electoral votes from the South and thus its political clout because the Three-Fifths Clause counted them for apportionment in the House of Representatives.
     The ink was barely dry on the Constitution when the Twelfth Amendment was ratified in 1804 to replace the harebrained provision that the presidential runner-up serve as vice president. Ever since, the major political parties have fielded competing presidential and vice-presidential tickets, and the electors have been relegated to voting according to the popular vote in their respective states.
     The Constitution never uses the phrase “Electoral College,” nor have the electors ever met as a collective body. The Constitution specifies that they cast their ballots in their respective states. But Alexander Hamilton sold the system to voters in Federalist No. 68 on the ground that the president would be chosen by “men [sic] most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation . . . .”
      Today, electors’ names do not even appear on most states’ ballots. The occasional elector who votes differently from the popular vote is not praised not for deliberation but criticized as “faithless.” For better or worse, none of the 157 faithless electors in U.S. history before the 2016 contest, as compiled in a Wikipedia entry, have affected the outcome of a presidential election. The Supreme Court ruled in 1952 that states can punish a faithless elector after the fact but cannot prevent electors from casting their votes as they see fit.
      The Supreme Court ruled in 1964 that states cannot use an unevenly weighted voting system in choosing statewide officeholders. The 8-1 ruling in Wesberry v. Sanders struck down Georgia’s county unit system, which gave rural voters significantly greater weight than voters in urban counties.
      Justice William O. Douglas acknowledged, with a critical footnote, the constitutional basis for the Electoral College, but he concluded that states had to give all voters equal weight. “The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing — one person, one vote,” he wrote.
      If states are foreclosed from giving rural voters more weight than urban voters in choosing governors or senators, the federal government should be equally foreclosed from giving voters in red-state Wyoming or blue-state Rhode Island more weight in choosing a president than those in blue-state California or red-state Texas. The court held in the District of Columbia school desegregation case in 1954 that the Fifth Amendment, ratified three years after Article II with its provisions for electing the president,  includes an equal protection component applicable to the federal government.
      Supporters of the Electoral College fall back on a political defense. In a pure popular-vote system, they warn that candidates would pay no attention to the least populous states. Nowadays, however, with most states well defined as either Democratic blue or Republican red, candidates devote most of their time and resources to only a dozen or so “battleground states.” Today, every Republican voter in California or Rhode Island counts for nothing, just like every Democratic voter in Texas or Wyoming.
      Supporters also argue, in effect, that the system works, almost all the time. The popular-vote winner has been denied the presidency only five times in the 54 elections since ratification of the Twelfth Amendment, including most recently Al Gore in 2000 and Hillary Clinton in 2016. A 9 percent failure rate is shy of an A-plus grade. And of the popular-vote-loser presidents in the 19th century, none is viewed as having been particularly successful in office: John Quincy Adams in 1824, Rutherford Hayes in 1876, and Benjamin Harrison in 1888.
      It would be quite a stretch for the Supreme Court to rule the Electoral College unconstitutional. But it was a stretch for the court to rule legislative and congressional malapportionment unconstitutional in the 1960s. The country is better off for the court’s decision to wade into what Justice Felix Frankfurter had previously called “the political thicket.”
      Malapportioned legislatures could not be expected to remedy the defect, so the Supreme Court stepped in when petitioned by disadvantaged voters from, among others, my home state of Tennessee. As a remedy, the court did not void elections. It only required legislatures to redraw districts and to hold subsequent elections according to the redrawn districts.
     If petitioned by undercounted voters in populous states, the court similarly need not nullify the results of a presidential election to get rid of the Electoral College. It need only require that a popular-vote system be established by the time of the next. Voters of underweighted states could file suit now and satisfy standing under the doctrine that their claimed injury is “capable of repetition but evading review.”
      The 15 states with five or fewer electoral votes — roughly half of them red and half blue — would be enough to prevent the three-fourths majority needed to adopt a constitutional amendment for a popular-vote system. A dozen or so states have signed on to the National Popular Vote Compact as a way to circumvent the Electoral College by pledging to cast their electoral votes for the popular-vote winner if joined by states with an electoral majority. Under the Supreme Court’s 1952 decision, however, the compact would be unenforceable.
      The U.S. Constitution has been a model for emerging democracies, but in more than 200 years no country has followed the Framers’ model for choosing its chief executive. The Constitution envisioned a system of self-government and, over time, its letter and spirit have been interpreted as embodying political equality as part of that system.
      The court has recognized in other contexts that the meaning of the Constitution can change with changing times. The Framers “knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” Justice Anthony M. Kennedy wrote in nullifying anti-sodomy laws in Lawrence v. Texas (2003). “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

Sunday, December 11, 2016

Court: No Insider Trading for Friends, Family

      Supreme Court justices routinely caution against drawing any conclusions about the court's views when it declines to review a lower court decision at the behest of the losing side in the case. Even so, the advocates and experts worried about insider trading felt a frisson of disappointment a year ago when the court declined to hear the government's appeal of a decision by the federal appeals court in New York making it harder to prosecute those cases.
      The disappointment hardened into anxiety a few months later when the court agreed to hear an appeal in a California case by a defendant who had cited the New York decision in an unsuccessful effort to overturn his conviction. Court watchers saw the decision to hear the case, Salman v. United States, as an indication that justices across the ideological spectrum might want to narrow the expansive reading of the broadly worded insider trading laws.
      For insider trading hawks, however, the story has a happy ending. In a unanimous decision last week [Dec. 6], the court held that it is a crime to trade on nonpublic information passed on by an insider relative or friend even if the so-called "tipper" gets no money, nothing but good will, for the leak. The ruling upheld the conviction of Bassam Salman, who made more than $1.5 million in profits by trading on the basis of tips about pending health care mergers and acquisitions passed on by his brother-in-law, an investment banker at Citigroup in San Francisco.
      In its decision in the New York case, the Second U.S. Circuit Court of Appeals had ruled that insider trading was not illegal unless the tipper received "a potential gain . . . of a pecuniary or similarly valuable nature." The hedge fund manager defendants in United States v. Newman had picked up tips from loose-lipped Wall Street bankers, who leaked valuable tips about future earnings reports from high-tech companies and were never prosecuted themselves.
      The prosecutors never established the bankers' motives for the leaks. Perhaps they felt a sense of self-importance as they showed they were in the know. Or maybe they even hoped for some kind of payback, in good will or maybe in U.S. currency. Under the Second Circuit's decision, however, they were not criminals and neither were the "tippees" who used the information to outsmart the general trading public.
      The New York case was brought by the office of U.S. Attorney Preet Bahrara, the prosecutorial scourge of Wall Street who reportedly has agreed to remain in office under the next administration. The Second Circuit said that Bahrara had prosecuted the hedge fund managers under "a doctrinal novelty," but in its decision last week the Supreme Court specifically said that Newman was "inconsistent" with the high court's underlying precedent.
      Admittedly, the court's foundational decision in Dirks v. Securities and Exchange Commission (1983) is less than crystal-clear. Insider trading liability attaches, the court held, only if the tipper receives "a personal benefit" from breaching a fiduciary duty to keep information confidential. The petitioner in that case, investment broker Raymond Dirks, won a reversal of his censure by the SEC for telling institutional investors about apparent fraud by a big insurance company.
      In the new decision, the Supreme Court reaffirms Dirks but without adding much by way of clarity. "Dirks makes clear that a tipper breaches a fiduciary duty by making a gift of confidential information to 'a trading relative,'" Justice Samuel A. Alito Jr. wrote in the 12-page opinion upholding the Ninth Circuit's decision to affirm Salman's convictions.
      The crime in this case started innocently enough. Maher Kara followed the health care industry for Citigroup and started sharing information about the industry with his older brother Mounir Kara when their father was battling cancer. One thing led to another: Mounir (known as Michael) started trading on the information and he then started feeding the information to Salman, a friend who eventually married Maher's sister.
      Maher Kara eventually figured out that his brother and Salman were trading on the information, but he did not stop the leaks. Eventually, both Kara brothers pleaded guilty to insider trading and testified at Salman's 2013 trial, where he was convicted on multiple counts and sentenced to three years' imprisonment and $730,000 in restitution.
      In New York, federal prosecutor Bharara expressed approval of the new decision. “The court stood up for common sense and affirmed what we have been arguing from the outset — that the law absolutely prohibits insiders from advantaging their friends and relatives at the expense of the trading public,” Bharara said in a statement emailed to news media. “Today’s decision is a victory for fair markets and those who believe that the system should not be rigged.”
      Interestingly, the court heard from an array of groups on Salman's side and only two backing the government about the harm to the public from insider trading. In its amicus brief, the libertarian Cato Institute argued that the "personal benefit" theory is "vague" and "unpredictable" and that it actually "chills beneficial economic activity" by leaving insiders uncertain about the legality of disclosing market-relevant information.
      Alito's spare opinion rehearses none of that debate. But the court deserves credit for reaffirming a sensible rule, albeit difficult to enforce, to limit insiders' ability to rig the market for the benefit of friends and family.

Saturday, December 3, 2016

Court Set to Overturn Texas Death Penalty Cases

      Texas leads the nation in executions by a country mile, but the state seems on a path to seeing two of its death penalty cases reversed by the Supreme Court following separate arguments in the first two months of the court's new term. The blatant errors in the two cases highlight again the dismal record by Texas state courts and the federal appeals court for Texas in protecting constitutional rights in cases that call for additional not less scrutiny on appellate review.
      Bobby Moore appears likely after arguments last week [Nov. 29] to get a new chance to be spared execution under the Supreme Court's decision in 2002 prohibiting the death penalty for defendants with severe intellectual disabilities. In upholding the sentence, the Texas Court of Criminal Appeals relied on an old and now disfavored definition of what used to be called "mental retardation."
      As Justice Anthony M. Kennedy aptly remarked during the argument in Moore v. Texas, the state's approach seems designed to limit intellectual disability claims in the face of "an almost uniform medical consensus" on a somewhat broader definition. Texas Solicitor General Scott Keller tried to disagree, but Kennedy and Justice Elena Kagan both rejected his defense. "Justice Kennedy is right about how they operate," Kagan said, "and how they were intended to operate."
      In earlier arguments [Oct. 5], Duane Buck appeared likely in Buck v. Stephens to win a new chance to be spared execution by proving that he was prejudiced by testimony from a supposed expert linking black defendants to high degrees of "dangerousness." It was Buck's own defense lawyer who put on the testimony, prompting the law-enforcement minded Justice Samuel A. Alito Jr. to describe the course of the penalty-phase hearing as "indefensible."
      Buck's lawyer, Jerry Guerinot, has had 20 of his capital case defendants sentenced to death — a record highlighted in a New York Times profile with the headline "A Lawyer Best Known for Losing Capital Cases." In a separate case, the Texas attorney general's office has confessed error in use of the expert's race-as-dangerousness study. Even so, the Fifth U.S. Circuit Court of Appeals, which has jurisdiction over Texas and two other southern death penalty states, refused Buck the "certificate of appealability" needed to challenge the death sentence in a federal habeas corpus proceeding.
      At the Supreme Court, Kagan noted statistics from the brief by Buck's new lawyer, Christina Swarms of the NAACP Legal Defense Fund, that the Fifth Circuit denies permission to appeal in capital cases about 60 percent. By contrast, the Eleventh Circuit, which has jurisdiction over Florida and two other death penalty states in the South, denies permission about 6 percent of the time. "It does suggest," Kagan said, that "one of these two circuits is doing something wrong."
      With lenient judicial review like that, it is perhaps not surprising that Texas has been the national leader in executions since capital punishment was reinstituted under the Supreme Court's decision in 1976. The Death Penalty Information Center counts 538 executions in Texas during the period, more than one-third of the total number of 1,440 throughout the United States.
      The pace of executions is slowing nationwide and in Texas too. The death penalty "is withering on the vine," Stephen Shapiro, outgoing national legal director of the American Civil Liberties Union, remarked at the Supreme Court last week. As the number falls, Texas's proportionate share has increased. The Lone Star State's 13 executions in 2015 were almost half the national total of 28. For 2016, Texas's seven executions so far are again more than one-third the national total of 18.
      The two cases at the Supreme Court differ in terms of inviting extra-legal sympathy for the defendants. Guilt is undisputed in either case. Buck's offense is grisly and premeditated, Moore's less so on both counts.
      Buck, who is African American, was convicted of murder in the 1995 killing of his former girlfriend and a new friend of hers while her children watched. However gruesome the circumstances, a capital case with a black defendant demands extra attention to substantive and procedural rights in the light of the death penalty's long history of racial discrimination in the United States.
      Moore was convicted, in 1980 at age 21, of murder in the killing of a store clerk during a botched robbery in Houston. Representing Moore at the Supreme Court, the prominent Washington attorney Clifford Sloan told the justices that Moore's intellectual limitations had been evident since the age of 13 when he was unable to understand "the days of the week, the months of the year, the seasons, how to tell time, the principle that subtraction is the opposite of addition."
      The Supreme Court left it up to the states to define intellectual disability in its decision in Atkins v. Virginia (2002) prohibiting the execution of what were then called "mentally retarded" defendants. But in 2014 the Court ruled in Hall v. Florida that states cannot use a bright-line IQ test threshold in determining intellectual disability in capital cases.
      The standards now adopted by professional associations look separately at deficits in intellectual capacity and in what is called "adaptive behavior" -- roughly, the ability to get along in day-to-day life. In Moore's case, however, Texas applied the state's old standards that allowed disregarding intellectual deficits in the absence of adaptive deficits. Keller insisted that Texas's approach was "well within the national consensus," but Kennedy and the liberal justices appeared from the arguments ready to tell Texas to get with the times.

Sunday, November 27, 2016

Opportunity for Justices on Partisan Gerrymandering

      Wisconsin Republicans gained control of the state legislature and the governor's office in 2010 for the first time in 40 years and then set about drawing up legislative districts to secure a Republican majority for the rest of the decade. As the legislature was about to act, an aide to the Senate's Republican leader told the GOP caucus they had "an opportunity and an obligation to draw these maps that Republicans haven’t had in decades."
      The legislative districts have now been found by a federal court to have been designed to benefit Republicans and to have had that intended effect. That much is obvious from election statistics. Republicans drew 48.6 percent of the votes cast for Assembly candidates in 2012 but won 60 of the chamber's 99 seats. Two years later, Republicans won 63 Assembly seats with 52 percent of the statewide vote.
      Democratic voters challenging the redistricting have now won a split ruling from a three-judge federal district court that the redistricting amounts to an unconstitutional political gerrymander. The new map was "intended to burden the representational rights of Democratic voters throughout  the decennial period by impeding their ability to translate their votes into legislative seats," Judge Kenneth Ripple wrote for the court.
      Both the plaintiffs and the court faced the difficulty that up till now the Supreme Court has failed to find a basis to decide when partisan gerrymandering goes too far. In three decisions over the span of 20 years, the court has recognized constitutional claims against political gerrymandering but upheld each of the challenged plans for lack of any agreed-on standard to apply.
      To remedy that gap, the plaintiffs secured the services of an experienced election law litigator now at the University of Chicago Law School. Nicholas Stephanopoulos, just granted tenure at Chicago after several years previously at the Washington law firm Jenner & Block, believes that he and an academic colleague have found the silver bullet needed to establish a legal limit on partisan manipulation in redistricting.
       The answer proposed in a law journal article by Stephanopoulos and his coauthor, the California political scientist Eric McGhee, is appealingly straightforward. They created a quantifiable datum — they call it the "efficiency gap" — to compare how efficiently the respective political parties use their voters to win legislative seats.
      In brief, think of the winning party's margin of victory in any district beyond a one-vote plurality as "wasted" votes -- more than needed to win the seat. Votes cast for a losing candidate are wasted by the other party. Add up all the wasted votes — either "surplus" votes or "lost" votes — for each party, calculate the difference, and divide by the total number of votes cast. A low figure, say 2 percent, indicates a district map of relative partisan fairness, but Stephanopoulos and McGhee argue that a figure above some threshold — they suggest 8 percent — goes too far and ought to be deemed unfair enough for a court to rule the redistricting plan presumptively invalid. Based on this measure, they say partisan gerrymandering is worse now than ever in the elections they studied.
      Stephanopoulos and McGhee argued that their test was better than what has been called the "partisan symmetry" test. Under that approach, a redistricting plan survives challenge as a partisan gerrymander politically if each party would win the same number of legislative seats for a particular vote percentage as the other party would win if it had received the same percentage of the vote.
      Five justices indicated support for this approach in the most recent decision, Latin American League of United Citizens v. Perry (2006), but in the main opinion Justice Anthony M. Kennedy said the plaintiffs had offered no way to measure how much asymmetry was too much. Stephanopoulos and McGhee say their approach has the advantage of using actual election data instead of a hypothetical election and they go one step further by suggesting a threshold to define how much is too much.
       The majority judges in the Wisconsin case were convinced that the 11.69 percent efficiency gap was too much. Lawyers for the state argued that the Republicans' advantage stemmed from political geography: Democrats are concentrated in urban areas — so more "surplus votes" — while Republicans are dispersed more widely in suburban and rural areas. In his opinion, Ripple, a senior circuit judge appointed by President Ronald Reagan in 1985, acknowledged the point but said it gave Republicans only "a modest advantage," not the lopsided edge they achieved with the maps being challenged.
      The two other judges split along partisan lines. Barbara Crabb, a senior judge named by President Jimmy Carter in 1979, joined Ripple's opinion, while William Griesbach, named by President George W. Bush in 2002, dissented. In his dissent, Griesbach argued that the efficiency gap "oversimplifies political injury," but he appeared to offer no alternate approach.
      Stephanopoulos got the unusual opportunity for a professor to put his academic theory into practice after a fellow election law scholar referred him to the Wisconsin plaintiffs to represent them. The state plans to appeal the ruling to the Supreme Court. Stephanopoulos welcomes the chance. The case, he says, would give the Supreme Court "a golden opportunity to put a stop to one of the most pernicious and undemocratic practices in American politics today." As always, court watchers will be watching Kennedy, but the case is unlikely to reach the justices before next fall.

Saturday, November 19, 2016

With Sessions as AG, a Setback for "Lady Justice"

      A lawyer with the U.S. solicitor general’s office will stand before the U.S. Supreme Court next month in support of voting rights for African Americans in Virginia legislative districting. On behalf of the U.S. government, the lawyer will back the argument by minority voters that Virginia is violating the Voting Rights Act and the Constitution by packing African American voters into a dozen legislative districts in the Richmond area instead of dispersing them more widely to increase their overall political influence.
      The Justice Department has played an important role for most of the past 60-plus years in supporting long overdue moves toward racial justice. The government’s role was never more important than in 1953 when a new Republican attorney general decided to support the NAACP Legal Defense Fund’s plea for the Supreme Court to rule racial segregation in public education unconstitutional.
      The Justice Department has proved less supportive of racial justice in later Republican administrations on such issues as desegregation, affirmative action, and voting rights. But now President-elect Donald Trump has chosen as his attorney general an Alabama senator with a record of racially insensitive comments and overt opposition to laws and policies aimed at promoting the cause of justice.
      Based on Sessions’ views, the Justice Department under his leadership seems likely to do little to advance civil rights for minorities or women. Sessions’ statements suggest he will prefer voter suppression to voting rights, will ease federal oversight of racial profiling by local police departments, and will shelve efforts to advance LGBT rights. And a Sessions Justice Department seems very unlikely to promote diversity in new appointments to the federal bench, following the Obama administration’s record-setting numbers of women, minorities, and LGBT individuals to the federal courts.
      Trump’s nomination of Alabama’s Jeff Sessions promises to provoke a fierce confirmation fight that will test Democrats’ determination to hold Trump accountable if he converts divisive campaign rhetoric into divisive government policy. It will also test whether Republican senators, whether or not they supported Trump’s election, will go along when he picks people from the party’s incendiary wing for top-level positions in the new administration.
      Thirty years ago, Sessions suffered what is still for him a grievously embarrassing snub when the Senate Judiciary Committee rejected President Ronald Reagan’s nomination of him for a federal court judgeship in his home state of Alabama. With a Republican majority, the committee voted 10-8 to reject the nomination because of testimony about Sessions’ racially insensitive remarks while U.S. attorney in Alabama. Sessions was quoted as having described a white lawyer litigating a voting rights case as “a disgrace to his race” and as having called the ACLU and the NAACP “un-American” and “communist-inspired” because they “forced civil rights down the throats of people.”
      Sessions tried to discount or deny the accusations. “I am not a racist,” he told the committee back in June 1986. “I am not insensitive to blacks.” He pooh-poohed the slurs on the ACLU and NAACP. “I meant no harm,” he told the committee.
      Two moderate Republicans — Maryland’s Charles Mac Mathias and Pennsylvania’s Arlen Specter — joined the committee’s eight Democrats in voting to reject the nomination. With Specter changing his vote, the committee then deadlocked 9-9 on a motion to send the nomination to the floor anyway but without a recommendation. Alabama’s Democratic senator Howell Heflin was seen as casting the decisive vote to kill the nomination. He said there were “reasonable doubts” about Sessions’ ability to be “fair and impartial.
      Sessions went on to win election as state attorney general and then in 1996 as U.S. senator. He joined the Judiciary Committee and is reported to view his service as member and now chairman as vindication of sorts for the earlier setback at the committee’s hands.
      The new nomination is Trump’s payback for Sessions’ having been the first senator, in February, to endorse Trump’s candidacy. Trump made no announcement, but he surely is impressed by Sessions’ fiercely anti-immigrant stances. Civil rights groups immediately exploded in fierce opposition to the nomination and cited a host of other actions or statements by Sessions.
      The Lawyers Committee on Civil Rights noted that Sessions had called the federal Voting Rights Act “intrusive” and had celebrated the Supreme Court’s decision in 2013 to nullify the law’s critical preclearance provision. The Human Rights Campaign pointed to Sessions’ zero voting record on LGBT rights, including his votes against repeal of “don’t ask, don’t tell” and his opposition to the bill to prohibit anti-LGBT discrimination in the workplace. He also opposed the Supreme Court’s marriage equality decision. When asked about the possibility of a gay Supreme Court justice, Sessions replied that the appointment would be “a big concern.”
      Two Democratic administrations—Clinton’s and Obama’s—made extensive use of the 1993 law allowing the Justice Department to sue police departments for “policies and practices” that violate minorities’ constitutional rights. The Obama administration moves have been important in answering the demands for racial justice from, among others, the “Black Lives Matter” movement. Sessions is unimpressed. “It is clear,” he remarked “that police officers all over America are concerned” about those moves.
      The Justice Department’s shield proclaims, in Latin, that its lawyers “prosecute in the name of Lady Justice.” If Sessions is confirmed, he will come to office with strong doubts about his commitment to that lofty ideal.

Sunday, November 13, 2016

Holding Banks to Account for Foreclosure Crisis

      For all its legal firepower, the federal government has precious little to show for its efforts to hold the nation’s banks accountable for all the harm they did in causing the Great Recession of 2008-09. A few dozen executives from mid-level banks have gone to prison, yes, but the top-ranking executives from the “too big to fail” banks all escaped prosecution even as their companies agreed to pay billions in civil fines for improper foreclosure practices.
      Several of the nation’s big cities, however, have been trying to hold banks responsible for the harm inflicted in particular on African American and Latino neighborhoods with predatory lending targeted to minority home buyers. Now, the Supreme Court is set to decide whether cities have the legal standing needed to collect millions of dollars in damages from the banks for racial discrimination in violation of the federal Fair Housing Act.
      The justices’ questions during the hour-long arguments in Bank of America v. City of Miami on Tuesday [Nov. 8] seemed to indicate a ruling to green-light Miami’s suits against two of the nation’s biggest banks: Bank of America and Wells Fargo. Three Supreme Court decisions dating from the 1970s allow suits under the Fair Housing Act not only by would-be home buyers or renters but also by neighbors who are denied the benefits of interracial associations or by municipalities that are robbed of “racial balance and stability,” as the court put it in Gladstone, Realtors v. Village of Bellwood (1979).
      The court’s liberals seemed comfortable with applying those precedents to allow Miami to proceed with its suits despite concerns from two justices, Chief Justice John G. Roberts and Justice Anthony M. Kennedy, about how to limit the scope of the banks’ potential liability. The federal appeals court for Florida ruled in favor of the city’s suit, so the city would win even if the eight-justice Supreme Court were to split 4-4.
      The city of Miami, along with its neighboring municipalities in South Florida, was one of the epicenters of the foreclosure crisis that helped take the nation into recession. At the height of the crisis, South Florida had 172,894 homes in some stage of foreclosure in 2009. The worst of the crisis has passed, but South Florida was still ranked fifth highest in foreclosures last year among the nation’s metropolitan areas.
      Foreclosures need to be understood as more than personal setbacks for the forced-from-their-home homeowners. They are also disasters for neighborhoods left with the blight of empty, boarded-up houses and for municipalities deprived of property tax revenues and burdened with increased costs of law enforcement and social services.
      In its complaints against the banks, filed in December 2013, the city sought to show that the foreclosures resulted not from natural economic causes but from deliberate business strategies adopted by the banks. Backed up by affidavits from confidential bank employee witnesses, the city alleged that the banks targeted minority borrowers for discriminatory, high-cost loans that included terms likely to prove unaffordable. The banks then induced foreclosures by refusing to refinance the loans on fair and affordable terms.
      Loan officers got bonuses for writing loans that the city characterized in its complaints as “predatory.” Those loans included features such as interest rates at least three percentage points above the federal benchmark, interest-only loans, balloon loan payments, loans with prepayment penalties, and adjustable mortgages with “teaser rates” that increased by more than 6 percent over the life of the loan. The city alleged that minority borrowers were more likely to be offered these kinds of loans than white borrowers with equal creditworthiness: one-and-a-half times more likely for Bank of America, more than four times more likely for Wells Fargo. .
      The city used statistical studies to show that the results were just as could have been predicted: foreclosures by the taken-advantage-of minority borrowers. For Bank of America, nearly one-third of its loans to minority borrowers (32.8 percent) resulted in foreclosures but only 7.7 percent of its loans in predominantly white neighborhoods. For Wells Fargo, 24 percent of its loans to minority borrowers resulted in foreclosures, roughly 4 percent for white borrowers.
      The banks have yet to answer these allegations in detail because they have sought to dismiss the suits altogether as unwarranted extensions of the legal standing doctrines recognized in the Supreme Court precedents. The federal district court judge hearing the case agreed with the banks, but the Eleventh U.S. Circuit Court of Appeals reversed his decisions in emphatic, unanimous decisions in the two cases.
      At the Supreme Court, former acting solicitor general Neal Katyal represented the banks by warning against an “unlimited theory of liability” that would award compensation for harms “several steps removed” from the alleged discriminatory conduct. Representing the city, Robert Peck, president and founder of the private Center for Constitutional Litigation in Washington, forcefully countered that the banks’ policies had caused it to lose the “benefits . . . that come with an integrated community free from housing discrimination.”
      A legal ruling for the city would do no more than set the stage for a trial, where it would have to prove its allegations and connect its injuries to the banks’ policies. Millions of dollars from the banks would go only so far in undoing the damage the city has suffered, but it would be a significant victory for corporate accountability and racial justice.

Wednesday, November 9, 2016

Trump's Win Saves High Court's Conservative Majority

      The Supreme Court’s generally conservative orientation is safe for the next four years and probably longer. That is the upshot of Donald Trump’s stunning upset victory in the presidential election for the third branch of the federal government, with the other two branches also in Republican control.
      Democrats’ hopes for a liberal majority on the Supreme Court were dashed. Worse, the Democrats’ basic premise that Republicans would pay a price for obstructing President Obama’s nomination of veteran federal appeals court judge Merrick Garland for the high court was proven to be wrong, flatly wrong.
      For eight months, Democrats and their liberal and progressive allies had rallied in Washington and in state capitals around the country chanting to Republican senators, “Just do your job.” On Tuesday, however, only two incumbent Republican senators were defeated, including one, Illinois’s Mark Kirk, who had favored a hearing and vote on the Garland nomination.
      Among the other Republicans targeted in the campaign, New Hampshire’s Kelly Ayotte appears to have been defeated by Democrat Maggie Hassan by a razor-thin margin of 700 votes. But Pennsylvania’s Patrick Toomey and North Carolina’s Richard Burr, among others, won re-election handily as their battleground states went into the Trump column.
      Meanwhile, exit polls indicated that Supreme Court appointments were a more important factor in the presidential election than in either 2008 or 2012 and were somewhat more important for Trump voters than for those voting for Hillary Clinton. The “Supreme Court important” voters appear to have split almost 3-to-2 for Trump.
      Americans born since 1969 have never known a Supreme Court with a majority of liberal justices. Admittedly, Warren Court holdovers helped provide the crucial votes for two final bursts of liberal activism: the 1972 decision to abolish capital punishment and the 1973 abortion rights decision, Roe v. Wade.
      Republican-appointed moderates helped forge the majorities in those two cases, but conservatives gradually gained their footing in the 1970s and then solidified their control with new appointments in the 1980s. The court has moved to the right under three successive Republican-appointed chief justices: Warren E. Burger, William H. Rehnquist, and, now, in his 11th term, John G. Roberts Jr. The court’s jurisprudence has shifted to the right on an array of issues, including abortion regulations, affirmative action, church-state relations, consumer and worker rights, criminal law, and states’ rights vis-à-vis the federal government.
      True conservative activists view this history differently as one of successive defeats and disappointments. Among many examples, they cite as the most grievous the two Roberts Court decisions upholding the Affordable Care Act, with Roberts in the majority, and the 5-4 decision recognizing marriage equality for same-sex couples, with the moderate Republican Anthony M. Kennedy providing the critical fifth vote.
      The court would have tipped somewhat to the left if Garland, a moderate liberal in 19 years on the D.C. Circuit, had won confirmation to succeed the conservative lion Antonin Scalia after his death in February. But on the very day of Scalia’s death, Senate Majority Leader Mitch McConnell audaciously vowed to hold the vacancy open until after the presidential election.
      McConnell’s tactic succeeded, and sets an ominous precedent for the next time a Supreme Court vacancy occurs with the White House and Senate in opposite political hands. Despite a somewhat narrowed 52-48 majority, Republicans still control the Senate for the next two years. And Democrats will be challenged just to hold ground in 2018 as they will be defending 25 Senate seats compared to only eight for Republicans.
      Trump released a list of potential Supreme Court nominees back in May, at a time when many conservatives doubted his ideological bona fides. The list, later expanded to 20 but now pulled from Trump's web site, consisted of Republican-appointed judges from federal or state courts, all of them regarded by court watchers as fairly reliable conservatives.
      The eight federal circuit court judges on the list include, for example, the Tenth Circuit’s Timothy Tymkovich, who wrote that court’s 5-3 decision in the Hobby Lobby case allowing religiously-motivated private employers to get out of the Obamacare’s contraception mandate. The oldest of the group at age 60, the Coloradan Tymkovich might be passed over for someone younger who could be counted on to serve for a quarter-century or longer.
      Among nine state supreme court justices, Texas’s Don Willett is the most visible, thanks to the libertarian persona he projects through his judicial opinions and his popular Twitter account. Other state justices include Michigan’s Joan Larsen, an ex-Scalia law clerk who spoke at a memorial for the late justice in Washington in the spring.
      Before Trump’s upset victory, political Washington was speculating whether he might win lame-duck confirmation to guard against the risk of Hillary Clinton’s picking a more liberal justice if elected. With that contingency off the table, Garland is now likely to go down in history as the most qualified Supreme Court nominee in history never to win confirmation.
      Even with a Trump justice to fill the vacancy, the new president will fall short of the goal he laid out in the campaign to try to overturn the marriage equality and abortion rights decisions. With four liberal justices and Kennedy, those precedents are safe for now. And the liberal justices Ruth Bader Ginsburg and Stephen G. Breyer will surely defer any thoughts of possible retirement. And, as a postscript, the state votes on Tuesday in favor of the death penalty in California, Nebraska, and Oklahoma make it extremely unlikely that Kennedy will lend his vote to outlawing capital punishment altogether.

Sunday, November 6, 2016

Healing Needed as National Nightmare Nears an End

      Our long national nightmare is nearly over. The most divisive presidential contest since the 1860 campaign that literally broke the nation apart comes to an end on Tuesday (Nov. 8). By the end of Election Day, more than 125 million Americans will have cast votes in a race between a seasoned politician with feet of clay and a bombastic businessman and reality TV star with a heart and soul of pure darkness.
      Donald Trump lacks any of the basic qualifications to be president of the United States: he has no experience in public office or political campaigns and no previous serious engagement in public policy issues. And yet Republican voters chose him as the nominee of the party that gave us such presidents as Abraham Lincoln, Theodore Roosevelt, Dwight Eisenhower, and Ronald Reagan.
      Trump’s total lack of qualifications pales in comparison to his total lack of any of the character traits that one would look for in any public servant, such as scrupulous honesty, reasoned judgment, and selfless regard for the welfare of others. But Trump has so poisoned this presidential campaign that substantial numbers of Americans tell pollsters that they will be voting for him even though they deem him unqualified for the position.
      Hillary Clinton meets the major criteria  experience, knowledge, and character  but leaves many voters either unimpressed or uncomfortable. From her earliest days in the White House, as the head of a health care reform task force, Clinton has shown an aversion to transparency. Unfortunately for her campaign, she highlighted that character trait by using a private email server while secretary of state. In smaller numbers than for Trump, pollsters find some voters who will plan to cast ballots for Clinton but without completely trusting her.
      The life stories of these two popularity-challenged rivals are a study in contrasts. The daughter of middle-class parents, Clinton excelled at elite Wellesley College and Yale Law School and then devoted herself to public advocacy for children’s welfare. Trump was the spoiled brat of a millionaire developer who went into business with a “small” million-dollar loan from his father and set about enriching himself by, among other things, discriminating against minorities in rental apartments.
      Clinton married once, victimized to an extent by a sometimes unfaithful husband who, like her, saw political life as an honorable profession. Trump married three times and was himself a boastful womanizer who treated women in word and deed with an utter lack of respect.
      Out of office, Clinton earned big bucks by giving speeches to private companies and organizations or foreign groups that could afford to pay six-figure honoraria to the wife of a former president and a would-be president herself. When some of those speeches surfaced, despite Clinton’s non-disclosure, it was revealed that Clinton sometimes sounded different in private than in public. That revelation was shocking only to the politically naïve.
      Compared with this peccadillo, Trump’s capacity for dishonesty and deceit is as a mountain to a molehill. His record of business dealings includes hiring undocumented workers, stiffing contractors, and exaggerating his wealth to boost the value of his brand while low-balling the worth of his holdings for tax authorities to keep his taxes low.
      As to taxes, Trump is now the first presidential candidate in 40 years to refuse to disclose his income tax returns. After a lot of digging, the New York Times was handed a document that forced Trump to admit that he has paid no federal income taxes for a number of years. Two tax officials from President George H.W. Bush’s administration have shown that Trump also may have avoided Medicare taxes through the years by paying himself little or nothing in salary.
      Labor-intensive reporting by the Washington Post’s David Fahrenthold also shows that Trump has exaggerated his charitable donations, that the Trump Foundation is primarily funded not by Trump but by others, and that Trump has used foundation funds for himself: settling lawsuits or, in an act of stunning egomania, paying five figures for a portrait of himself.
      Despite this evidence, pollsters report that Trump is rated higher for honesty and trustworthiness than Clinton. This counterfactual belief speaks to a collective failure of judgment by the American public and a collective failure of reporting, commentary, and fact-checking by news media. Despite some award-worthy reporting in many print media, broadcast and cable news organizations have given far too much attention to trivia and drivel than to substantive issues or to Trump’s discreditable background and career.
      Clinton has waged a mostly traditional campaign built around a slogan of “Stronger Together.” She has detailed policy positions aimed at continuing the social and economic progress of the last eight years at home and confronting the United States’ adversaries abroad with careful diplomacy and disciplined application of military force.
      By contrast, Trump has waged a campaign built around a slogan, “Make America Great Again,” that is an unmistakable appeal to the racist and anti-immigrant sentiments among white Americans. On policy, he is a loose cannon of unrealistic proposals like the wall on the Mexican border, irresponsible ideas like nuclear weaponizing U.S. allies, and unsubstantiated boasts about his ability, alone, to “fix” the mess in Washington.
      Along the way, Trump has given voice and license to a meanness in political life unworthy of the world’s oldest and greatest democracy. He calls for jailing Clinton and is largely silent as some of his supporters openly suggest killing her. And he demeans the electoral process by charging, with utterly no evidence, that the election is rigged because of widespread voter fraud. The respected Georgetown University historian John McNeil has accurately shown that Trump displays many of the attributes characteristic of 20th century European fascism, including what McNeil calls the “cult of the leader” and the “lost golden-age syndrome.”.
      If the polls and projections are to be believed, Clinton will emerge on Tuesday night with an electoral college majority even though her popular vote margin appears to be narrowing after the latest blip in the overblown email scandal. No one expects Trump to go silently into the night as a gracious loser. He has poisoned the body politic. America can be great again but only if Americans come together to get the toxin that Trumpism represents out of our system. Sadly, the evidence of obstructionism among Republican leaders and ill will among Trump’s supporters indicates that the healing process is far from assured and likely to be, at best, slow and difficult.

Monday, October 31, 2016

Ballot-Box Tests on Death Penalty in States

      Public support for the death penalty has fallen to its lowest level in decades as measured not only in public opinion polls but also in the number of executions and newly imposed death sentences. And yet, if public opinion polls are reliable indicators, Californians are poised to reject a ballot measure to abolish the death penalty for the second time in four years and Nebraskans are about to vote to override the legislature’s decision in May 2015 to abolish capital punishment in their state.
      Harvard alumni might be forgiven for being surprised at these predictions after having received copies of Harvard magazine this month with a cover story provocatively entitled, “The End of the Death Penalty?” The story by the veteran legal affairs journalist Lincoln Caplan details at length the growing evidence that what he calls the 40-year-old “experiment” in Supreme Court-regulated capital punishment has failed and that more and more Americans are coming around to that view.
      Still, death penalty supporters outnumber opponents when asked in surveys whether they favor death sentences for persons convicted of murder. A Gallup Organization poll released in October found that 60 percent of those surveyed said yes compared to 37 percent who said no. That was the lowest support for the death penalty Gallup had found since the 66 percent figure recorded in 1976. A month earlier, the Pew Research Center reported a narrower margin: 49 percent in favor and 42 percent opposed. For Pew, that was the lowest figure since it began surveys on the issue in 1995.
      “We’re in the midst of a long-term political climate change on the death penalty,” says Robert Dunham, executive director of the Washington-based Death Penalty Information Center. But Dunham cautions against expecting developments on the issue to unfold in a straight line. “As with all forms of climate change, physical or metaphorical, there are extreme storms in both directions,” he says.
      The center is officially neutral on the death penalty and instead serves as an invaluable and all-but-authoritative resource on capital punishment as actually administered in the United States. By underscoring the wide variations in death penalty policy from state to state, however, the center helps opponents make the case that capital punishment is applied as arbitrarily and freakishly as it was before the Supreme Court’s 1972 decision to outlaw the death penalty as then administered.
      Californians actually have two choices on their ballots on what to do with the death penalty. Proposition 62 would abolish the death penalty for capital murder in favor of life imprisonment without eligibility for parole as the maximum sentence. Proposition 66, a ballot measure pushed by prosecutors, law enforcement, and conservative groups, would seek to speed up judicial review of death penalty cases by setting a five-year deadline for state court post-conviction challenges after regular appeals.
      If enacted, Proposition 62 would reduce the nation’s death row population by one-fourth in one fell swoop. California currently has 741 inmates awaiting execution, about one-fourth of the total number of 2,905 on death row in 32 states or in federal or military prisons.
      Despite that number, California lags far behind other death penalty states in actual executions. California has executed 13 inmates since the Supreme Court’s decision in 1976 to uphold revamped capital punishment laws—a tiny fraction of the 538 executions carried out in Texas and fewer than 15 other states with smaller populations. Death penalty supporters blame the lag on the California and federal court systems. Besides the five-year deadline, Proposition 66 is also aimed at giving trial-level judges instead of the state’s supreme court the responsibility for ruling on death row inmates’ state habeas corpus petitions.
      With one exception, polls in California indicate that Proposition 62 will fail, just as a similar proposition was defeated by 52 percent of the state’s voters in 1962. The respected Field Poll found 48 percent in favor and 37 percent opposed in late October, but four other polls found Proposition 62 averaging just over 50 percent in favor. Proposition 66 was ahead 51 percent to 20 percent in a poll in early October by Sacramento State University, but with nearly 30 percent undecided.
      In Nebraska, supporters of capital punishment qualified a referendum on the legislature’s decision, overriding a gubernatorial veto, to abolish the death penalty. Nebraska has executed only three people since capital punishment was restored in 1976. A survey in August found 47.8 percent of likely voters in favor of restoring the death penalty and another 10.5 percent likely to vote that way too.
      In jury rooms, however, Americans are less and less persuaded. The number of new death sentences imposed in the United States fell in 2015 to 49, according to the death penalty center, barely one-sixth of the 295 imposed in 1998. Meanwhile, the number of executions in 2015 fell to 28, the lowest number since 1991, and is on pace to fall even lower in 2016, with only 17 executions so far this year.
      At the Supreme Court, Justice Stephen G. Breyer argued in a dissenting opinion last year that the death penalty may be unconstitutional. He cited the dozens of death row exonerations in recent years as proof of its unreliability and the inevitable delays in judicial review as proof of its failure as either deterrent or retribution. Those doubts are gaining ground among the general public, but voters in two death-penalty battleground states apparently are not there yet.

Sunday, October 23, 2016

On the Web, Cults of Personality for Ginsburg, Thomas

      Welcome to the brave new world of Supreme Court fandom! Two of the current justices, one from each of the ideological blocs, now have web sites created by ardent fans to celebrate their lives, times, and jurisprudence.
      Ruth Bader Ginsburg has her Notorious R.B.G. tumblr, a site created by the then-law student Shana Knizhnik as she was inspired by Ginsburg’s forceful dissent in the court’s decision in 2013 to gut the Voting Rights Act. The site is a richly illustrated, constantly updated buffet of tidbits and morsels from Ginsburg’s opinions and effusive toasts from her admirers along with links to RBG T-shirts and merchandise.
      Not to be outdone, Clarence Thomas’s fans have built two online sites: an all meat-and-potatoes site created by the Washington lawyer Mark Paoletta, a veteran of the Thomas confirmation fight; and the Justice Clarence Thomas Appreciation Page, an in-construction blog that replaces a web site previously maintained by the unidentified author.
      Each of the sites unapologetically glorifies its subject. The Notorious R.B.G. home page promises “Justice Ginsburg in all her glory.” Paoletta describes Thomas on the site’s home page as “a stalwart defender of the original meaning of the Constitution” who “has led the Court back to that all-important document.” The Thomas appreciation page includes speeches and opinions from Thomas and news articles or columns, seemingly all selected to show Thomas not only as forceful and insightful in his opinions but also as generous and approachable off the bench.
      The Thomas web site appears to be newly created, based on the 2016 copyright date at the bottom of the home page. Paoletta, who helped win Thomas’s narrow Senate confirmation as a member of the White House counsel’s office, is not identified on the site but was identified as the creator in an op-ed written for The Hill, the political website chronicler of all things Washington. Paoletta did not respond to requests for an interview for this column; an email request sent to the “contact” address for the Thomas appreciation page also went unanswered.
      Paoletta created a separate website,, to counter what he viewed as the false account of Thomas’s contentious 1991 confirmation in the HBO docudrama Confirmation that aired in the spring. The home page describes the program as “a work of fiction . . . with imaginary scenes, fictional characters, and a biased agenda. . . .”
      In his op-ed, Paoletta joins several other of Thomas’s fans in criticizing what they see as the slight to Thomas in the newly opened National Museum of African American History and Culture. Thurgood Marshall, the first African American justice, apparently gets his due as the architect of the legal fight against racial segregation. As the second black justice, however, Thomas appears only indirectly in an exhibit that includes a picture of Anita Hill, the law professor who accused Thomas of sexual harassment while she worked for him at the Equal Employment Opportunity Commission.
      The critics see an ideological bias against conservatives in the museum’s curation. Paul Mirengoff, writing for the conservative web site Power Line, goes so far as to suggest that conservatives should boycott the museum in protest. The Smithsonian’s only published reply to date has been somewhat weak. “We cannot tell every story in our inaugural exhibitions,” Linda St. Thomas, the Smithsonian’s chief spokesperson, said in an email to Christian News Service.
      Whatever slight there may be, Paoletta arguably made up for it in advance by exaggerating Thomas’s impact at the Supreme Court. Under the heading “Jurisprudence,” Paoletta lists and includes links to 23 of Thomas’s “most significant decisions.” But only one of the so-called “decisions” is actually a majority opinion written for the court. The 22 others include 11 separate concurring opinions and 11 dissents. The compilation underlines not Thomas’s influence but in fact his lack of influence because of idiosyncratic views rejected time and time again by his colleagues, including his fellow conservatives.
      Thomas wrote for all four conservatives in only one of the dissents, and the case demonstrates the oversimplified description of Thomas as committed to originalism in constitutional interpretation. The court in U.S. Term Limits v. Thornton (1995) struck down an Arkansas law imposing term limits on members of the state’s congressional delegation. For the dissenters, Thomas found authority for the measure in the Constitution’s clause authorizing states to regulate “the time, place, and manner” of congressional elections. The majority equally relied on text and original meaning to conclude that states had no authority to add to the qualifications listed in the Constitution: minimum age of 25, at least seven years of U.S. citizenship, and residence in state.
      Through omission, Notorious R.B.G. also exaggerates Ginsburg’s influence. Visitors to the site might not guess that Ginsburg has relatively few major decisions to claim as author or that her liberal colleagues have been at least as forceful as she in their dissenting opinions —  for example, Justice Stephen G. Breyer in his 2007 dissent in a school desegregation case or Justice Elena Kagan in her 2014 dissent objecting to sectarian prayers in legislative sessions.
      Supreme Court watchers who prefer footnoted law review articles might find these sites unsatisfying, but they do make the court’s work more accessible for the Internet era. Sadly, however, the idolizing puffery may make an already overly politicized court appear to be that much more partisan as partisanship rages unabated outside the Marble Palace.

Saturday, October 15, 2016

Safeguard Needed for Racism in Jury Room

      Race is different: different from any of the other categories of prejudice that lurk in our individual or collective subconscious. That is the undeniable lesson of 400 years of American history from slavery through Jim Crow to the present.
      Chief Justice John G. Roberts Jr. resisted the import of this undoubted truth, however, in a closely watched case [Oct. 11] challenging what may have been a racism-infected guilty verdict in a weak criminal case against a Mexican American defendant.
      Miguel Angelo Peña Rodriguez was convicted in 2007 of groping two teenaged sisters in a darkened bathroom at a Colorado race track. The evidence in the brief trial consisted of little more than the girls’ identification — first in a roadside “showup” and then in court. The defense lawyer challenged the identification on a variety of well recognized grounds. Peña denied the accusation and was backed up by a fellow Hispanic who said the two were together in one of the race track’s barns at the time of the offense.
      The jury deliberated for 12 hours before convicting Peña of three misdemeanor counts but acquitting him of a more serious felony charge. In juror interviews after the verdict, his lawyer gathered affidavits from two members of the jury that one of the jurors had made a number of blatantly racist statements during deliberations about Peña and his alibi witness. None of the jurors had volunteered any racial prejudices during jury selection.
      The juror, a white former law enforcement officer identified as H.C., was quoted by his fellow jurors as saying that Peña was guilty because “Mexican men take whatever they want” and “think they can do whatever they want with a woman.” Based on his experience as a law enforcement officer, H.C. said that in his former patrol area Mexicans were guilty “nine times out of ten . . . of being aggressive toward women and young girls.”
      For good measure, H.C. also rejected the alibi witness’s testimony because he was “an illegal.” In fact, the witness testified at trial that he was a legal resident of the United States.
      The evidence, however damning, collides with a rule dating back to 18th century England against impeaching a jury verdict based on deliberations inside the jury room. The Supreme Court embraced the rule in a decision in 1915, saying it was important to protect “frankness and freedom of discussion” among jurors. The court has reaffirmed the rule more recently in decisions in different contexts in 1987 and 2014. The Colorado Supreme Court applied the rule in its 4-3 decision in 2015 upholding Peña’s convictions; he had been sentenced to two years’ probation and required to register as a sex offender.
      The Supreme Court agreed to hear Peña’s appeal, which noted that 18 states allow such challenges for racial bias while Colorado is among the majority along with federal courts that do not. Civil rights groups joined in urging the court to safeguard the Sixth Amendment right to an “impartial” jury by allowing criminal defendants to challenge verdicts based on racist statements in the jury room. The Obama administration sided instead with Colorado in opposing any exceptions to the rule against impeaching a jury verdict based on evidence of “racial prejudice or on other types of bias or misconduct.”
      Representing Peña, Stanford law professor Jeffrey Fisher was only two paragraphs into his argument when Roberts jumped in with an old standby: the slippery slope problem. “What about religious bias?” Roberts asked. “Wouldn’t that come under your exception?” Fisher sought to deflect. “Religion might be viewed similarly,” he said, but he stressed that the court did not need to deal with other contexts in this case.
      Justice Samuel A. Alito Jr. echoed Roberts’ concern. “You’re not being very helpful to the court in your answers,” he said. Roberts asked later about sexual orientation. That might be treated similarly as well, Fisher said, but perhaps decided under a different balancing test.
      Liberal justices, however, jumped in to distinguish race from the hypotheticals Roberts and Alito were raising. “I always thought the most pernicious and odious discrimination in our law is based on race,” Justice Sonia Sotomayor said. Fisher readily agreed. The cases in jurisdictions that allow such challenges all focus on race or national origin, Fisher told the justices. The hypotheticals, he said, were “theoretical arguments.”
      By the end of the arguments, it seemed likely that Peña had the votes of four liberal justices to allow him a hearing to present the evidence and have a court decide whether the verdict against him was constitutionally tainted. A fifth vote on the eight-justice court would be needed from Justice Anthony M. Kennedy, who seemed troubled by the state’s arguments but less than certain. In a preview session, court watcher Tom Goldstein, publisher of SCOTUSblog, suggested that Kennedy might write a decision that allowed such challenges but only under a test “very hard” to meet.
      Roberts had a simpler answer to racial discrimination in a school desegregation case back in 2007. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” he wrote then. Jurors may bring other kinds of bias into the jury room, but those cases are no reason to back away from one limited safeguard against the racial discrimination that still pervades criminal justice in the United States.

Monday, October 10, 2016

Trump's Singular Threat to Rule of Law

      Donald J. Trump has been a singular threat to civil liberties and the rule of law almost from the beginning of his presidential campaign. The danger reached a new low in the second presidential debate last night [Oct. 9] when Trump vowed, if elected, to prosecute his campaign opponent, Hillary Rodham Clinton.
      Some of Trump’s rights-endangering campaign promises may pose a lesser danger because they are beyond a president’s power to implement. The president has no unilateral power to change libel laws, for example, nor any power to order local police to adopt unconstitutional stop-and-frisk tactics. But the president does have the power to initiate a criminal prosecution unless a hypothetical attorney general were to decline the instruction.
      With Trump’s campaign in free fall for the past two weeks, the pledge appeared to be a rehearsed tactic to sharpen his attack on Clinton’s use of a private email server while secretary of state. “If I win,” he said when the issue came up during the 90-minute debate, “I am going to instruct my attorney general to look into your situation.”
      Clinton counterattacked. “It’s just awfully good that someone with the temperament of Donald Trump is not in charge of the law in this country,” she said. Trump interrupted to shoot back: “Because you’d be in jail.”
      The threat by one major party presidential candidate to put his opponent in jail if elected has no exact historical precedent, though it recalls the shameful history of the Federalists’ use of the Sedition Act to jail their opponents in the 1790s. Trump’s handlers quickly tried to minimize the threat as “a joke,” according to spokesperson Kayleigh McEnany’s tweet that night, or “a quip,” according to campaign manager Kellyanne Conway the next morning.
      It was surely not taken as a joke, however, by the many Trump supporters who have shown up at rallies wearing “Jail the bitch” T-shirts. Republican pollster Frank Luntz was quoted as saying that the comment registered as one of Trump’s best moments in the debate in the focus group he was monitoring. And Trump himself posted the exchange on Facebook the next morning, with no indication that he was less than serious.
      Clinton has acknowledged her mistake in using a private email server while secretary of state, but the Republican-appointed, tenure-protected FBI director James Comey said the bureau’s investigation found no basis for prosecution. In a rule-of-law system, that ought to be enough, but not for Trump, who went on in last night’s debate to call his Democratic opponent a “liar” and “the Devil.”
      For emerging democracies, it is often said that the real test is not the first election, but the second. The election must be free and fair and the result accepted as such by the public. Trump had already jeopardized that second condition by repeatedly warning about the supposed risk of voter fraud and a “rigged” election, with utterly no basis in fact. He invokes this danger to summon his supporters to serve as election monitors. True voting rights advocates see a real risk of harassment or intimidation of would-be voters by the Trump ballot-watchers in the Democratic-leaning precincts likely to be targeted.
      As a private citizen, Trump has expressly used legal process as a tool of intimidation. He filed an unsuccessful libel suit against author Timothy O’Brien over his critical biography TrumpNation. In a post-mortem, Trump seemed to recognize that the suit was unlikely to succeed, but he congratulated himself for sticking O’Brien and his publisher with a big legal bill.
      As a candidate, Trump has promised to “open up our libel laws” to permit suits when newspapers “write purposely negative and horrible and false articles.” With no federal libel law at present, Trump would need to ask Congress to write one. If one were enacted, it would have to pass muster with the Supreme Court. The court’s line of First Amendment decisions beginning with New York Times v. Sullivan in 1964 requires a public official or public figure a defamatory statement was published with knowledge that it was false or with reckless disregard as to its truth or falsity. None of the current Supreme Court justices has called for reconsidering those decisions.
      As a candidate, Trump has also called for use of stop-and-frisk, citing the policies in New York City in the 1990s as an example. The Supreme Court’s line of decisions beginning with Terry v. Ohio in 1968 permit police to stop and “frisk” someone if the officer has a reasonable suspicion that the person is committing or is about to commit a crime or that the person is armed and dangerous. In a vigorously litigated case, a federal judge found that the city’s indiscriminate use of the tactic against racial minorities was unconstitutional. In the first presidential debate, Trump wrongly disputed the correct account of the ruling by the moderator, NBC’s Lester Holt.
      Trump tosses blustery rhetoric around as if a presidential candidate’s policy pronouncements are no more than click-bait tweets. In the debate, Clinton repeated her line that anyone with Trump’s temperament should not be permitted to have his hands on the nuclear codes. In like vein, no one with Trump’s reckless disregard of the rule of law should have his hands on the Constitution.

Sunday, October 2, 2016

High Court Opens New Term With Low Profile

      The Supreme Court is set to open a new season on Monday [Oct. 3], but the reviews are already coming in — and they’re not good. One after another, court watchers opened preview sessions last month bemoaning the lack of hot-button issues among the unusually small number of 29 cases accepted for review before the justices left for their summer recess. “It’s a docket with cases not as sexy as some might hope,” according to Tom Goldstein, Supreme Court advocate and founder and publisher of SCOTUSblog.
      On the other hand, the justices may prefer a low profile until after the election, according to Carolyn Shapiro, a law professor and co-director of the Supreme Court Institute at Chicago-Kent College of Law. “The chief and most of the justices may want to stay below the radar till November 9,” Shapiro remarked at a preview sponsored by the liberal American Constitution Society.
      True, the cases teed up so far include none of the hot-button issues that produced liberal rulings in the two previous terms: gay marriage, abortion rights, and affirmative action. And there are no cases yet with sharply drawn challenges to major Obama administration policies like those from the last term involving the president’s immigration policy and Obamacare, round four. Both of those produced setbacks for the administration with the eight justices divided evenly between conservative and liberal blocs.
      Still, the cases already scheduled for arguments in the October and November calendars include a significant test of the government’s power to prosecute investment bankers for passing insider tips to family members (Salman v. United States, argument Oct. 5). The city of Miami is also pressing a long-shot civil rights suit against mortgage bankers for the damages their predatory lending practices caused to minority neighborhoods in the form of rampant foreclosures and boarded-up vacant properties (Bank of America v. City of Miami, argument Nov. 8).
      The justices added eight cases in orders issued on Thursday (Sept. 29) following the so-called long conference the previous Monday. “Boring,” snorted Ian Millhiser, the pugnacious Supreme Court watcher at the progressive news site Think Progress Memo. Two of the newly added cases are mind-numbing civil procedure disputes, but the new batch includes a closely watched case that mixes rock music, pro football and the First Amendment in a dispute over how far the government can go in policing racial intolerance.
      The all Asian-American rock band who proudly call themselves “The Slants” is seeking trademark protection for the name despite the finding by the Patent and Trademark Office (PTO) that it amounts to an offensive ethnic slur. The Lanham Act, the longstanding federal trademark law, prohibits federal registration of trademarks that “disparage . . persons, living or dead, institutions, beliefs, or national symbols.” The U.S. Court of Appeals for the Federal Circuit ruled that provision unconstitutional, and the Supreme Court agreed to hear the PTO’s appeal (Lee v. Tam, argument likely in January).
      The Slants are cheered on in their case by the owner of the Washington, D.C., professional football team, whose nickname was found unregistrable because offensive to most if not all Native Americans. The government argues in both cases against any First Amendment violation by noting that the band or the team can continue to use its challenged name but without any protection against infringement of the unregistered trademark.
      Despite its supposed conservative orientation, the Roberts Court has been surprisingly favorable toward criminal defendants in recent years seeking to limit federal sentencing practices or expansive readings of federal criminal statutes. However that issue plays out in the insider trading case, the court will hear pleas in its first two weeks from two criminal defendants seeking to reverse state court convictions based on alleged constitutional violations at trial implicating important questions about racial justice.
      A black death row inmate in Texas condemned for killing his former girlfriend and her new male companion is seeking to overturn his sentence because his lawyer called an expert witness who found black defendants to pose a statistical risk of future dangerousness (Buck v. Davis, argument Oct. 5). An Hispanic defendant in Colorado is asking to reverse his sexual misconduct conviction based on evidence that a juror influentially argued during deliberations that, because of their ethnicity, neither the defendant or an alibi witness was to be believed (Peña-Rodriguez v. Colorado, argument Oct. 11).
      The court gets off to a somewhat slow start with no arguments scheduled on the traditional First Monday in October because of the Jewish holiday Rosh Hashanah and two days blank the next week because of Columbus Day and Yom Kippur. But the second week features a high-stakes patent dispute between the rival combatants in the smartphone wars: Samsung and Apple.
      Samsung is seeking to overturn the $399 million judgment that Apple won by arguing that its rival infringed its design patents on such features as the rounded corners that make it easy to slip phones into pockets. Samsung argues that Apple is entitled if at all to only the portion of its profits attributable to the infringed designs, not the total amount (Samsung Electronics v. Apple, argument Oct. 11).
      Despite the poor reviews, the court bears watching, as always. And cases still in the pipeline may add to the interest and the legal stakes before the term ends next June.

Sunday, September 25, 2016

Sentencing Reform Stalled by 'Dysfunction' in Congress

      After Republicans gained control of the Senate in the 2014 midterm elections, the conservative Federalist Society held a program the next week to explore the seemingly favorable impact on prospects for criminal justice reform at the federal level. The time seemed right for Congress to act given the unified GOP control in the House and the Senate and the broad bipartisan support for reducing federal sentences, especially for low-level drug offenses.
      Two years later, a lot of cold water has been thrown on the hopes for action in Congress thanks to what the New York Times’ veteran Washington correspondent Carl Hulse aptly called “a stunning display of dysfunction” on Capitol Hill [Sept. 17].The bipartisan support that extended from President Obama to House Speaker Paul Ryan and beyond has not been enough to get a floor vote in either chamber on an issue important to liberals for humanitarian reasons and to conservatives for fiscal economy.
      Supporters are not ready to throw in the towel, however, even after committee-approved bills have lain dormant in the Senate and the House for nearly a year. Holly Harris, a one-time Republican political operative who serves as executive director of the bipartisan U.S. Justice Action Network, says the obituaries for the legislation from Hulse and others are “premature.”
      Harris says she is “extremely confident” that the House will vote on legislation in the post-election, lame-duck session thanks to continuing support from Ryan. She is less certain about a vote in the Senate, but points to strong backing for the Senate bill from Texas’s senior Republican senator, John Cornyn. And she believes that one prominent opponent, Arkansas’ Tom Cotton, has actually helped the cause with his “nonsensical” statement that the United States has a problem with “underincarceration,” not overincarceration. “No one believes that,” she says.
      The program at the Federalist Society’s annual national lawyers convention two years ago bore the title, “Criminal Sentencing Reform: A Conversation Among Conservatives.” Presiding over the 90-minute discussion was no less a conservative than William Pryor, a federal appeals court judge appointed by President George W. Bush and a former attorney general in his reliably red home state of Alabama.
      Pryor opened by acknowledging that the cost of crime was “undoubtedly high” and then added, “But so too is the cost of incarceration.” Pryor had been calling for lowering federal prison sentences as far back as 2005. Back then, he said that Alabama faced a prison “crisis” because of a 600 percent increase in the inmate population over a 30-year period as the state’s population rose only 30 percent.
      Federal prisons have similarly grown in population and in costs over the past 30 years, according to data cited by card-carrying conservatives Timothy Head and Grover Norquist. In an article they wrote for as members of the pro-reform Coalition for Public Safety, they quote statistics showing an eight-fold increase in federal prison population from 25,000 to 209,000 since the 1980s. The cost soared nearly seven-fold to $6.85 billion from just under $1 billion.
      In the early handicapping on sentencing reform, the Senate Judiciary Committee’s incoming chairman, Iowa’s Chuck Grassley, was seen as a likely opponent. Grassley in fact opposed the first effort at a bipartisan measure introduced in February 2015 by Utah Republican Mike Lee and Illinois Democrat Richard Durbin.
      By October, however, Grassley was persuaded to join with Durbin as original sponsor of a somewhat softened measure, S. 2123, that the Judiciary Committee approved on Oct. 22, 2015. Within a month, the House Judiciary Committee approved parallel legislation, H.R. 3713. Both bills generally would give federal judges discretion to reduce currently mandatory minimum sentences for low-level drug offenders and would reduce the mandatory sentence enhancements for crimes related to drugs or use of firearms.
      By February 2016, however, both bills were stuck in Capitol Hill limbo, calendared but not scheduled for floor votes. Bill Keller, the former New York Times editor who created The Marshall Project as a pro-reform site, wrote that “the vaunted bipartisan drive” behind sentencing reform was “not quite dead. But its pulse is faint.”
      Keller noted a then-recent poll that found 61 percent of respondents believe there are too many drug offenders in federal prisons and more than 75 percent oppose federal mandatory minimum sentences. “Voters are ready and wiling to reform the criminal justice system in ways that reduce the size and cost of the federal prison system, while improving outcomes,” the Mellman Group stated in summarizing the surveys.
      Harris views the presidential election as the culprit in stopping reform in its tracks. Both major parties included pro-sentencing reform planks in their platforms over the summer, she noted, but “there was no will to vote before the election.” In his article, Hulse casts part of the blame on the Republican presidential nominee Donald Trump for his recent campaign warnings, alarmist and false, about a supposed increase in crime rates in the country.
      The crime rate is in fact at historically low levels, but homicides are spiking in some major cities. Any influence from Trump, however, comes late in the game. Hulse is perhaps more on target in blaming Republicans who simply do not want to add to Obama’s legacy. Harris sees plenty of blame to go around. “If it doesn’t get done,” she says, “it will be a really big indictment of Washington.”

Sunday, September 18, 2016

On Confirming Judges, Senate Just Says No

      President Obama made history this month [Sept. 7] by nominating a Washington lawyer, Abid Riaz Qureshi, to be the first Muslim ever to have a lifetime appointment to a federal court. But Qureshi is unlikely to win Senate confirmation for the post this year — not just because of his religion but more fundamentally because of unprecedented obstructionism from Senate Republicans on nominations to the federal bench.
      The Senate’s Republican leadership is now in its seventh month of refusing to convene a hearing on Obama’s nomination of the veteran federal appeals court judge Merrick Garland to the current vacancy on the Supreme Court. But the GOP’s refusal to consider Obama’s judicial nominees goes much further than that.
      Even as unfilled judicial vacancies have more than doubled over the past two years, Senate Majority Leader Mitch McConnell has now all but shut down consideration of any of Obama’s judicial nominees. The 90 vacancies include 34 that are characterized as “judicial emergencies” based on caseload figures.
      The policy extends to noncontroversial judicial nominees for U.S. district courts even when supported by home-state Republican senators, according to Glenn Sugameli, who has been tracking federal court nominations since 2001 on a website now called Sugameli, who now works as a staff attorney for Defenders of Wildlife, calls the obstruction “unprecedented, unjustifiable, and harmful to businesses and individuals for whom justice delayed is justice denied.”
      McConnell announced the policy of refusing to consider Obama’s Supreme Court nominee on the very day of Justice Antonin Scalia’s death [Feb. 13] and reaffirmed it after Obama chose Garland for the seat a month later [March 16]. “The American people should have a voice in the selection of their next Supreme Court justice,” McConnell said. Senate Republicans have stuck to the policy despite accurate criticism from Obama, Senate Democrats, and many court watchers that it has no basis in the Constitution or historical practice.
      Sheldon Goldman, a political scientist at the University of Massachusetts-Amherst and a longtime expert on judicial nominations and confirmations, agrees that the broader inaction on Obama nominees has no historical precedent. The record of the current Senate over the past two years is “the worst in American history in terms of obstruction and delay.”
      Admittedly, tit for tat has been the name of the game in judicial politics as far back as the 1980s with Republican Ronald Reagan in the White House and Democrats controlling the Senate for most of the time. President George W. Bush included John G. Roberts Jr. in his first batch of 11 nominees for federal appeals courts in May 2001, but Roberts won confirmation in 2003 only after Republicans gained control of the Senate. All of the others also eventually won confirmation except Miguel Estrada, a Washington lawyer, whose nomination was filibustered by Senate Democrats while in the minority.
      McConnell defends the Senate’s current record by noting that the Senate has confirmed a few more Obama judges, 329 in all, than it did for Bush in his eight years: 326. Sugameli says the comparison is misleading because of the larger number of vacancies in the Obama years.
      Curt Levey, a conservative veteran of the judicial wars as president of the Committee for Justice, agrees with McConnell. “The bottom line is the total number of confirmations,” he says even as he acknowledges that statistics can be “isolated to show whatever you want.” Levey adds that Republicans may be exacting revenge for the Democrats’ decision in the previous Congress while in the majority to rule out the use of the filibuster on judicial nominations except for the Supreme Court.
      Qureshi’s nomination with only five months left in Obama’s second term would have been problematic even under normal circumstances. Senators from the opposition party often try to slow down action on judicial confirmations in the final months of a president’s term.
      Born in Pakistan, Qureshi graduated with honors from Cornell University and Harvard Law School after coming to the United States with his family. He now heads the global pro bono committee of the international law firm Latham & Watkins. In announcing his nomination for the federal district court in the District of Columbia, the White House made no mention of Qureshi’s religion, but his background promptly prompted divergent reactions, including anti-Muslim rants on conservative web sites.
      Muslim advocacy groups applauded the nomination. Farhana Khera, executive director of Muslim Advocates, called Qureshi “an exceptional nominee.” Qureshi twice worked pro bono on civil rights cases for the group. Nan Aron, president of the liberal Alliance for Justice, cited the nomination as further evidence of Obama’s practice of making diversity a “centerpiece” of his judicial appointments.
      From the opposite perspective, conservative web sites criticized the nomination. In posting the story on Twitter, Breitbart News added this as a tweet: “Pack it up, folks. Fun country while it lasted.” Mad World News reported that Qureshi has “an extensive record of prejudicially defending Muslim rights” — whatever the adverb may mean — and accused him of unspecified “links” to the Council on American Islamic Relations, the Islamic Society of North America, and Saudi government officials.
      Meanwhile, Garland’s supporters rallied this month in front of the Supreme Court urging the Senate to “do its job.” Unfortunately for the short-staffed federal courts, Garland is only one of the victims of the Senate’s Republican leadership’s decision to turn deaf ears to the plea.

Monday, September 12, 2016

For LGBT Rights Advocates, Much Work Lies Ahead

      Thurgood Marshall was elated and optimistic after the Supreme Court outlawed racial segregation in public schools in the landmark Brown v. Board of Education decision in 1954. “I was so happy I was numb,” he recalled later to historian Richard Kluger. On the day of the decision, Marshall confidently predicted that racial segregation in schools would be eliminated within five years and that all forms of racial discrimination would be outlawed by 1963, the 100th anniversary of the Emancipation Proclamation.
      Marshall’s optimism proved to be unfounded. School desegregation stalled for nearly a decade and schools were becoming more racially separate by the time of his death in 1993. The three landmark civil rights acts outlawing racial and other forms of discrimination in employment, voting, and housing had not been enacted by 1963, but over the next five years instead.
      LGBT rights advocates celebrating the Supreme Court’s decision a year ago guaranteeing marriage equality for same-sex couples were similarly thrilled with the victory, but some tempered their optimism. The National Gay and Lesbian Chamber of Commerce called on the LGBT movement that day to “harness this momentum to secure greater equality, especially nondiscrimination protections for LGBT Americans.”
      The scattered resistance to same-sex marriage has faded, except for the continuing calls for a religious liberty exemption for public officials, businesses, or individuals to refuse to provide services for gay or lesbian weddings. It is still legal in roughly half the states for a private employer to fire or refuse to hire an individual on the basis of sexual orientation or gender identity.
      Transgender rights advocates have gained new visibility but only because of controversial moves in Houston, North Carolina, and Virginia aimed at forcing transgender individuals to use public bathrooms that correspond to their biological sex instead of their gender identity.
      The unfinished work for LGBT rights advocates was one of the topics as LGBT journalists gathered in Miami’s South Beach this past weekend for the annual convention of their national organization, NLGJA. “They say we’re in a post-marriage equality, post-don’t ask, don’t tell world,” longtime activist Cathy Renna said as she opened a panel discussion under the title “Putting the ‘Move’ in Movement: a.k.a. Life After Marriage.” “Are we really?” Renna asked rhetorically.
      The consensus of the panelists could be summed up in one word: No. “It gets harder now,” remarked Nadine Smith, co-founder and CEO of Equality Florida. “We’ve got a lot of work to do.”
      Marriage equality emerged as the LGBT rights movement’s primary goal only as the eventual ruling suddenly seemed attainable within the past few years, sooner than almost anyone had anticipated as realistic. Even today, some in the LGBT community minimize the importance of the Supreme Court decision. “Marriage was not on my radar,” Khafre Abif, a community organizer with the Southern AIDS Coalition, remarked at the panel. “This was far from what black gay folk wanted.”
      Abif hopes to repeal the laws that criminalize the knowing transmission of HIV. He notes that there are no comparable laws against transmitting genital herpes and warns that the HIV laws perversely deter sexually active individuals from getting tested so that they can learn their status and take needed precautions.
      The Supreme Court’s marriage ruling in Obergefell v. Hodges built on two earlier decisions. The 1996 decision in Romer v. Evans limited the ability of state or local governments to exclude LGBT individuals from civil rights protections. Seven years later, the court in Lawrence v. Texas (2003) invalidated the few remaining state laws that made gay sex a prosecutable crime even if they were rarely enforced.
      In the meantime, LGBT rights advocates had been urging Congress to approve a bill, the Employment Nondiscrimination Act, to protect gay and lesbian individuals from job discrimination nationwide. The goal briefly seemed attainable in the mid-1990s, but has been dead ever since Republicans gained control of the House of Representatives. “The Equality Act cannot win,” Dominic Holden, who covers LGBT issues for BuzzFeed News, remarked at the panel, using the bill’s current working title.
      LGBT rights advocates have scored a few gains the past few years thanks to executive branch decisions by the Obama administration — for example, the executive order in April 2015 prohibiting anti-LGBT discrimination by federal contractors. More recently, the U.S. Department of Education has told school boards nationwide that transgender pupils should be allowed to use restrooms and locker facilities corresponding to their gender identity rather than their birth sex.
      The power of the bathroom backlash was seen in November 2015 when Houston voters repealed an LGBT rights ordinance and again in March when North Carolina’s Republican-controlled legislature passed a law known as H.B. 2 to nullify Charlotte’s local LGBT rights ordinance. “Does the LGBT movement have a strategy for dealing with this question?” Holden asked. “So far, the answer is no.”
      The issue is now at the Supreme Court, which is considering whether to hear an appeal by a local school board in Virginia in a school bathroom case challenging the Obama administration policy (Gloucester County School Board. v. G.G.). A federal judge in Texas has meanwhile ruled the policy unlawful, but the administration is appealing.
      Holden is watching the transgender cases with what appears to be guarded optimism, but on the whole he is downbeat on events since the marriage decision. “The big, bold LGBT movement riding high after marriage equality has been getting stopped in its tracks,” he remarked. But so too it appeared in the first years after Brown. Still, as Martin Luther King Jr. remarked, the arc of the moral universe bends, eventually, toward justice.