Sunday, October 15, 2017

A Free Pass for Corporations in Human Rights Suits?

      Seven years after giving corporations a First Amendment right to unlimited spending in election campaigns, the Roberts Court appears ready to give corporations a free pass for serious human rights violations committed abroad. That result was the consensus prediction following arguments last week [Oct. 11] in a case seeking to force the Jordan-based Arab Bank to pay millions of dollars in damages to victims of violent attacks in Israel and the West Bank for helping to finance the militant Palestinian group Hamas.
      The plaintiffs in Jesner v. Arab Bank, PLC are relying on a 225-year-old federal law granting federal courts the power to hear damage suits for violations of international law. Congress included what is now called the Alien Tort Statute as a single sentence in the Judiciary Act of 1789, the foundational statute for the federal judiciary. The provision lay mostly dormant until the 1980s, however, when human rights lawyers in the United States began using it to haul accused international human rights violators into U.S. courts to be held accountable for their conduct.
      The Supreme Court has been less than receptive to claims under the law despite its seemingly clear "plain text." Federal courts, the law states, have "original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations [emphasis added]." In a pair of recent decisions, however, the Court has moved to limit the scope of the law — its substantive content and its geographical reach — and questioned use of the law to sue corporations, not just individual defendants.
      In the present case, the New York-based Second U.S. Circuit Court of Appeals accepted arguments by Arab Bank and supporting U.S. business groups that the law does not authorize suits against corporations. Judging from the three-sided arguments at the Supreme Court, the four most conservative justices along with Anthony M. Kennedy are ready to agree despite the four liberal justices' evident doubts about the basis for any broad exemption for corporations.
      Representing the plaintiffs, Jeffrey Fisher, a Stanford law professor and director of the school's Supreme Court litigation clinic, opened by stressing what he called the "traditional presumption that corporations can be held liable in torts." He acknowledged that the court's most recent decision, Kiobel v. Royal Dutch Petroleum Co. (2013), required that the alleged misconduct have some sufficient connection to the United States for a suit to proceed in federal court.
      The suit in Kiobel that the Supreme Court rejected stemmed from environmental depredation by the Dutch company from oil drilling in the Niger River delta in Nigeria. Fisher contended that the Arab Bank's financing of Hamas met the jurisdictional test  because the bank has a U.S. branch and its transactions clear through a New York financing facility.
      Representing the bank, Paul Clement, the former U.S. solicitor general and now the go-to Supreme Court advocate for conservative causes, discounted the claimed basis for federal jurisdiction over the suit. But he argued more broadly and most strongly that there was no "norm for holding corporations liable for violations of international law" in circumstances like those alleged in the suit.
      In a split-the-difference stance, the government agreed with Clement that the Arab Bank's use of a New York clearinghouse was insufficient to establish federal jurisdiction over the case. But Brian Fletcher, an assistant U.S. solicitor general, argued that Clement's argument for a "categorical rule" exempting corporations from suits under the law was "wrong."
      Chief Justice John G. Roberts Jr. led the conservatives in questioning the suit, just as he had done earlier in the Kiobel argument. He repeatedly voiced concern about the likely "foreign entanglements" if federal courts entertained suits arising from events abroad. Fisher and Fletcher both argued for dealing with those concerns case-by-case without any categorical exemption for corporations.
      All four liberal justices echoed those doubts in questions from the bench. Justice Stephen G. Breyer aptly asked who could be held liable for financing terrorism if not a bank: only a billionaire, he suggested. Justice Elena Kagan asked the same question about use of slave labor. And Justice Sonia Sotomayor answered the conservatives' doubts by noting that "many countries" hold corporations civilly liable in tort suits.
      From the conservative side, Justice Neil Gorsuch, he of the plain-text statutory construction school, questioned whether Congress in 1789 really had corporations in mind when it passed the law. The law originated from an assault on the French ambassador, an alleged violation of the international law of diplomatic immunity. Kagan batted away Gorsuch's doubts by asking "what difference" it would have made if the ambassador's assailant had been hired by a corporation.
      The U.S. Chamber and other business groups now count this as a major issue because of the proliferation of suits against U.S.-based multinational companies — for example, against Ford and IBM for supplying cars or computers to South Africa's apartheid regime or against Wal-Mart for buying from suppliers abroad with inhumane working conditions. With the conservative justices evidently sharing that concern, Fisher noted that the number of suits has dropped since the court's decision in Kiobel.
      The Roberts Court's conservative majority has been solicitous of business interests in a variety of areas — most controversially in the 5-4 decision in Citizens United v. Federal Election Commission (2010) giving corporations a First Amendment right to engage in political spending. Against that background, a decision to give corporations a free pass for violating international law seems a flat contradiction.

Saturday, October 7, 2017

'Makeweight Excuses' on Political Gerrymandering

      Justice Felix Frankfurter fashioned a strong legal argument in 1946 when he warned his Supreme Court colleagues not to step into a "political thicket" by agreeing to adjudicate a challenge to Illinois' badly malapportioned congressional districts. Frankfurter's views prevailed in a 4-3 decision, but two decades later the Court boldly stepped into the thicket by opening federal courts to reapportionment cases and establishing "one person, one vote" as a fundamental principle of American democracy.
      History has proved Frankfurter wrong and the later Warren Court right. But two of the Roberts Court's most vocal conservatives revived Frankfurter's misplaced fears last week [Oct. 3] in trying to steer their colleagues away from taking on a new generation of redistricting challenges to political gerrymandering.
      Frankfurter stated matter-of-factly that "of course," no court could redraw Illinois' districts to bring them into conformity with "standards of fairness for a representative system." Five decades of redistricting and reapportionment cases prove that Frankfurter was wrong. But Chief Justice John G. Roberts Jr. and the Court's newest member, Justice Neil Gorsuch, threw up their hands in surrender last week rather than require that district lines be drawn to conform with standards of political fairness for a two-party system.
      Roberts and Gorsuch offered only makeweight excuses for shrinking from the Court's promise of equal justice under law. Roberts feared that the Court would expose itself to partisan criticism from whatever political party a hypothetical anti-gerrymandering decision might disadvantage.
      That ship sailed in 2000 when five Republican-appointed justices in Bush v. Gore delivered the White House to George W. Bush rather than allow an unhampered recount of the popular vote in Florida. Roberts himself has exposed the Court to partisan criticism time and time again in politically charged cases, according to a compilation by Ian Millhiser on the liberal news site Think Progress Memo.
      In two of those cases, Citizens United v. Federal Election Commission (2010) and Shelby County v. Holder (2013), Roberts helped craft new constitutional doctrines to render decisions that evidently advantaged Republicans over Democrats. Whether right or wrong, surely the Court could not have declined to decide the cases because politically treacherous.
      For his part, Gorsuch wanted to take the Supreme Court out of the issue altogether. He offered the bizarre suggestion that Congress could use its constitutional authority to police the states in drawing state legislative districts.
      Back in 1946, Frankfurter had some basis for suggesting that Congress had the institutional capacity to enforce the federal law passed three decades earlier requiring equal-population congressional districts. As a sometime critic of congressional dysfunction, however, Gorsuch surely could not have been serious in suggesting that the 435-member House of Representatives could judge the fairness of legislative districts lines every 10 years in even one state, much less all 50.
      Roberts and Gorsuch made the comments during a spirited argument in a gerrymandering case from Wisconsin, Gill v. Whitford. With full control of state government for the first time in decades, Wisconsin Republicans drew state legislative districts in 2011 in a way that enabled the GOP to win 60 percent of the seats in the next election with less than a majority of the overall state vote.
      Democratic voters served as plaintiffs in a well-crafted constitutional challenge to the districting scheme. The plaintiffs and their legal team endeavored mightily to meet the test laid down by Justice Anthony M. Kennedy in an earlier case to offer a judicially manageable standard to determine when  politically motivated district maps go beyond constitutional bounds.
      Their theory relied in part on a quantifiable measure, a so-called "efficiency gap," devised by Nicholas Stephanopolous, a law professor at the University of Chicago. The efficiency gap compares the number of "wasted votes" for each of two parties: votes cast for the party in losing races and the "excess" number of votes in winning races.
      In Wisconsin, the Republican-drawn plan left Democrats with many more wasted votes than the GOP. Plaintiffs argued that an efficiency gap above a certain threshold could be seen as constitutionally impermissible. Roberts dismissed the theory as "sociological gobbledygook," while Gorsuch suggested it had no more exactitude than his recipe for turmeric-infused barbecue sauce.
      In a post-argument commentary for the online magazine Slate, Stephanopolous explained step by step the role that the efficiency gap could play in judging partisan gerrymanders. The test, he explained, would look first and second for partisan intent and partisan effect and then use the efficiency gap as a measure of partisan asymmetry. Plaintiffs could show the asymmetry unjustified by offering simulated maps with less asymmetry.
      The four-step test may sound complicated, but it is no more complex than the formula devised for judging mixed-motive cases in job discrimination suits. As for Gorsuch's concern about imprecision, the "one person, one vote" test itself is necessarily fuzzy: precisely equal population districts are impossible. Over time, the Supreme Court figured out how much variance the Constitution allowed: some but not too much, just like the turmeric in Gorsuch's barbecue sauce.
      Judges cannot shirk hard issues because they are hard. Notwithstanding Roberts' and Gorsuch's concerns, partisan gerrymandering is surely "distasteful," as Justice Samuel Alito Jr. himself opined from the bench. And plaintiffs' attorney Paul Smith was also surely right that the Supreme Court is the only institution that can limit the practice before a likely "festival" of copycat gerrymandering after the 2020 census.

Sunday, October 1, 2017

A Republican Justice Settles In as GOP Cheers

      As a Supreme Court nominee, then-Judge Neil Gorsuch assured the Senate Judiciary Committee of his impartiality by saying that there is "no such thing as a Republican judge or a Democratic judge." Americans apparently disagree. Gorsuch's first few months in office have instantaneously raised Republicans' approval of the Court and driven Democrats' approval down to a near record low.
      A Gallup poll taken in the first week of September found that Republicans' approval of the Court had jumped from 26 percent a year ago to 65 percent as approval among Democrats fell from 67 percent to 40 percent. Whether wittingly or not, Gorsuch has fed the partisan reaction to his confirmation with his votes and opinions as justice and ethically dubious public appearances off the bench.
      Most troublingly, Gorsuch allowed Senate Majority Leader Mitch McConnell to take him along as a trophy of sorts as the justice spoke at two law schools last month in McConnell's home state of Kentucky. McConnell was responsible for stealing the Supreme Court seat that Gorsuch now occupies by leading the Republican-controlled Senate in refusing to consider President Obama's nominee for the position, Judge Merrick Garland. McConnell openly boasted of the nakedly partisan maneuver in an earlier home-state appearance by saying that the change in political climate in Washington could be summed up in "three words: Justice Neil Gorsuch."
      Gorsuch again put any concern for the appearance of impartiality off to the side by agreeing to speak to a conservative organization in Washington last week [Sept. 28] at the Trump Hotel. President Trump's financial stake in the hotel raises an issue under the Constitution's Emoluments Clause, an issue that is quite likely to reach the Supreme Court in one or more of the cases now being litigated in federal court.
      With no evident appreciation of the irony, Gorsuch used his appearance before the Fund for American Studies to call for civility in public discourse. “To be worthy of our First Amendment freedoms, we have to all adopt certain civil habits that enable others to enjoy them as well,” Gorsuch declared.
      Gorsuch spoke less than a week after President Trump had used his bullying pulpit to question the patriotism of National Football League players who "take a knee" during the pregame national anthem to protest racial injustice in the United States. Trump went even further by labeling the protesting athletes as "sons of bitches" and urging NFL owners to fire them.
      Gorsuch's host organization is nominally nonpartisan in its goal of promoting "limited government and free-market economics," but it is thoroughly Republican and conservative in its origins and current leadership. The Fund for American Studies was founded 50 years ago by, among others, the godfather of modern conservatism, commentator William F. Buckley Jr. One reporter at last week's luncheon reported that the audience was filled with "the conservative legal firmament."
      Gorsuch has already agreed to a second speaking engagement in November that will amount to a another victory lap for those responsible for putting him on the Supreme Court. Gorsuch will speak in Washington in November to the annual meeting of the Federalist Society, the conservative-libertarian organization that has touted its role in vetting Gorsuch for the Supreme Court seat.
      Writing in USA Today, Gabe Roth, executive director of the reformist organization Fix the Court, complained that Gorsuch's appearance before an audience of "well-heeled conservatives" illustrated the regrettable tendency of justices to “stick to U.S. audiences whose ideologies closely follow their own." Roth noted that in the previous year conservative justices but none of the liberals had spoken to Federalist Society events, while liberal justices but no conservatives had appeared before the progressive American Constitution Society (ACS).
      Roth's evenhanded plea for justices to get out of their ideological cocoons is well taken, but misses an important point. ACS has never played nor claimed a role in judicial appointments comparable to the role that the Federalist Society has played going back as far as the Reagan administration. Trump tasked the Federalist Society and the conservative Heritage Foundation during his campaign with vetting potential Supreme Court nominees. And he marked Gorsuch's confirmation in April by hosting Federalist Society leaders for a celebration at the White House the next day.
      The Gorsuch effect is seen not only in the shifting partisan lines on the Court's approval rating but also in the justices' case-selecting process. With Gorsuch in his first "long conference" last week [Sept. 25], the justices added nine new cases with unusual speed, including one that represents a major financial challenge to a core Democratic constituency: public employee unions (Janus v. American Federation of State, County, and Municipal Employees).
      Gorsuch, son of a Reagan-era Cabinet member, has cheered Republicans from Trump down by lining up with the Court's other archconservatives, Clarence Thomas and Samuel A. Alito Jr., on issues ranging from Trump's travel ban to capital punishment and gay rights. Democrats are left to rue the results of the Republicans' in-plain-sight theft of the seat. As NPR's Nina Totenberg recently remarked, "All those liberals who thought there might a liberal heart beating somewhere in Justice Gorsuch now know that is not true."

Sunday, September 24, 2017

'Straight Weddings Only' Equals Discrimination

      Carl and Angel Larsen wanted to break into the wedding video business, but as "Bible-believing Christians" they wanted to announce on their company's website that they would not shoot gay or lesbian ceremonies. Anticipating legal problems, the St. Cloud, Minn., couple filed a suit in federal court in Minnesota in December 2016 asking in effect for a constitutionally based exemption from the state's anti-LGBT discrimination law.
      In a thorough, 63-page opinion, Chief U.S. District Court Judge John Tunheim ruled that the Larsens' Telescope Media Group would be violating the state law by posting a notice that he likened to a "whites only" sign from the pre-civil rights era. "Posting language on a website telling potential customers that a business will discriminate on the basis of sexual orientation is part of the act of sexual orientation discrimination itself," Tunheim wrote in the Sept. 20 decision.
      The Larsens, represented by the anti-gay religious liberty group Alliance Defending Freedom, argued that the state law amounted to an attempt to stamp out opposition to same-sex marriage. Tunheim rejected the argument but specified that the couple was free to post a notice opposing same-sex marriage and free to decide not to post their videos of same-sex weddings.
      Tunheim's decision is in line with rulings in somewhat similar cases by state appellate courts in three other states: Colorado, New Mexico, and Washington. Over the span of a few years, the state courts enforced anti-LGBT discrimination laws by penalizing a photographer in New Mexico, a florist in Washington, and a baker in Colorado for refusing to provide services for same-sex weddings.
      The Colorado baker's appeal is now before the U.S. Supreme Court, which is likely to hear arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission during its December calendar. Despite the uniformity of rulings in such cases, however, Supreme Court advocates and experts previewing the case in advance of First Monday expect a closely divided decision with Justice Anthony M. Kennedy likely to cast the pivotal vote.
      The case was identified as one of the new term's potential blockbusters as soon as the justices finally agreed to hear Jack Phillips' appeal as the previous term ended in late June. The case drew that much extra attention when the Trump administration intervened earlier this month [Sept. 7] with a precedent-defying friend-of-the-court brief supporting Phillips' claim for a free-speech exemption from Colorado's anti-LGBT discrimination law.
      Phillips, a self-identified Christian like the Larsens in Minnesota, operates a family-friendly bake shop in the Denver suburb of Lakewood and views his personalized cakes as artistic expressions protected by the First Amendment. David Mullins and Charlie Craig came into his shop one morning in July 2012 to order a cake for a reception to celebrate their earlier wedding in Massachusetts. Phillips told them he would sell them an off-the-shelf cake but said he did not make customized cakes for same-sex weddings.
      Mullins and Craig got a cake, for free, from a different baker, but only after publicizing the confrontation and filing a complaint with the Colorado Civil Rights Commission. The commission ordered Phillips to make cakes for same-sex weddings on the same terms as opposite-sex weddings, to re-educate his staff on the state civil rights law, and to provide quarterly reports of compliance with the order. The Colorado Court of Appeal upheld the order, and the Colorado Supreme Court declined to review.
      Phillips raised separate but related constitutional claims in asking the U.S. Supreme Court to review the case. He contended that the order to serve same-sex weddings amounted to compelled speech in support of same-sex weddings and an unconstitutional burden on his free exercise of religion. The government had not been asked for its views, but the Trump administration backed Phillips in a brief signed by the then-acting solicitor general Jeffrey Wall but by none of the career attorneys in the solicitor general's office.
      The government narrowed the case somewhat by passing over the free-exercise issue and by acknowledging well known Supreme Court precedents generally rejecting claimed First Amendment exemptions from generally applicable public accommodations laws. Phillips' compelled speech claim was viewed as an exception, however, because a custom-made cake was an "inherently expressive" product — unlike, for example, a hotel room or a limousine for the happy couple.
      Earlier, the commission had urged the justices not to hear the case by noting that Phillips had cut Mullins and Craig off before they had any chance to ask for a particular design. Some commentators have now picked up on the point by suggesting the compelled-speech claim cannot be decided on the basis of this record.
      In the American Civil Liberties Union's term-opening preview, deputy legal director Louise Melling described the government's brief as the first time ever that the government had backed a constitutional exemption from anti-discrimination laws. As to the compelled speech claim, Melling contended that Phillips should still lose even if Mullins and Craig had asked for a design or decoration specifically celebrating same-sex unions.
      The case poses a seeming quandary for Kennedy, who can rightly claim gay rights and freedom of speech as parts of his three-decade legacy. The conservative bloc that dissented in the marriage equality decision two years ago, with Neil Gorsuch now in Antonin Scalia's seat, may have no qualms about narrowing rights for same-sex couples. But given the weight of authority, they should hesitate before blowing a constitutional hole through well-established anti-discrimination laws.

Sunday, September 17, 2017

Trump's Election Commission: A Fraud on the Public

      Justice John Paul Stevens delivered an impassioned dissent when the Supreme Court voted 5-4 in Bush v. Gore to block a complete recount of Florida's vote in the 2000 presidential election. "[W]e may never know with complete certainty the winner of this year's Presidential election," Stevens said. He added regret at what he saw as a loss of public confidence in the court as "an impartial guardian of the rule of law."
      With the wounds of the 2016 presidential election still fresh in mind, both of the rival candidates — Donald Trump and Hillary Rodham Clinton — are doing what they can to undermine confidence in the results of the election. Trump has peddled the blatant lie that he would have won the popular vote if not for a supposed 3 million to 5 million votes cast illegally by non-citizens.
      Clinton, in her sour grapes memoir What Happened, has complained with more substantiation that she might have won at least one other state, Wisconsin, and perhaps others if not for the vote-suppressive effects of  newly enacted state voter ID laws. Clinton lays blame for the Wisconsin law not only on the state's Republican legislature and Republican governor but also on the Republican-majority Roberts Court for allowing the law to stay on the books despite legal challenges.
      The effects of the various voter ID laws passed in Republican-controlled states over the past two decades would be a good subject for detailed, bipartisan examination by a presidential or congressional commission. But Trump's Presidential Advisory Commission on Election Integrity is intent instead on following its creator in perpetuating the completely fraudulent charge of widespread voter fraud in U.S. elections.
      Kris Kobach, the Kansas secretary of state who is the commission's vice chair and eminence grise, set the stage for the commission's second public session last week [Sept. 12] by describing the state's junior senator, Maggie Hassan, as holding a "stolen seat" because of supposed voter fraud in her 743-vote margin in the November balloting. Kobach's accusation is easily debunked, but it takes a paragraph or so.
      To start, the ostensibly bipartisan 12-member commission is fraudulent in its very composition: "flawed from the very start," according to the good-government group Common Cause. The seven Republican members are for the most part veterans of the voter ID law movement, which depends for its very existence on the imaginary epidemic of voter impersonation fraud. Besides Kobach, the other Republicans include Vice President Mike Pence, the nominal chair; Ohio's former secretary of state, Kenneth Blackwell; Indiana's current secretary of state, Connie Lawson; and two former officials in the Bush administration's Justice Department: Hans von Spakovsky, now with the Heritage Foundation, and J. Christian Adams, president of the self-styled Public Interest Legal Foundation.
      Before the selections, Von Spakovsky wrote an email to Attorney General Jeff Sessions urging him to keep Democrats or moderate Republicans off the commission entirely. Von Spakovsky denied writing the email after it surfaced in response to a Freedom of Information Act, but a Heritage spokesperson acknowledged his authorship. Von Spakovsky's advice may have been rejected, but the five Democrats on the commission are mere tokens: only two have statewide election responsibilities, Maine's Matthew Dunlap and New Hampshire's Bill Gardner, while the other three have only minimal expertise in the area.
      Kobach's imputation of fraud in New Hampshire stems from his discovery of 5,313 votes cast by individuals who same-day registered with out-of-state driver's licenses. But, surprise: New Hampshire allows anyone living in the state to vote even if their legal residence is another state. For example: college students. New Hampshire Public Radio easily ascertained that most of Kobach's supposedly fraudulent votes were cast in college towns. End of story.
      The commission's other evidence of voter fraud is a Heritage Foundation database that goes back to 1948 to identify 1,071 "proven instances" of election fraud cases. Out of nine categories, however, only two — and those with the fewest in number — might be prevented by voter ID laws: impersonation fraud and false registration. The other categories included absentee ballot fraud, vote-buying, vote-counting alteration, and so forth.
      In a detailed dissection, the Brennan Center on Justice concluded that the voter impersonation and false registration cases represented "a molecular fraction" of the total in the Heritage Foundation compilation. Heritage's database "undermines its claim of widespread voter fraud," according to Brennan Center senior counsel Rudy Mehrbani. Among ineligible voters who cast ballots, most had prior felony convictions and could have been unaware of their disqualification, Mehrbani suggested.
      In its critique, Common Cause recalled that three previous election commissions over the past two decades came up with useful recommendations that could be adopted by red or blue states alike. Those commissions were truly bipartisan, the group explained: the current commission "an aberration."
      The Trump commission's congenital defects are all the worse because of the many issues that Common Cause and others have identified as needing substantive and bipartisan attention. Those issues include "how to ensure access for all eligible voters; enhancing enthusiasm for and participation in our electoral processes; and modernizing voting machines and systems to ensure their safety from external interference."
      That last point deserves emphasis. Despite evidence of Russian election hacking attempts in 2016, state and federal election officials have done little to study the problem or prevent it in the future.

Sunday, September 10, 2017

For Workers, Trump's Policies Hurt More Than Help

      President Trump marked Labor Day with a perfunctory tweet that sounded "Make America Great Again" themes with only a glancing recognition of American workers. "We are building our future with American hands, American labor, American iron, aluminum and steel," Trunp tweeted. "Happy #LaborDay!"
      The tweet passed silently over the foreign-made goods sold by first daughter Ivanka Trump's company and similarly omitted any specific benefits for U.S. workers from Trump administration policies. Just as well: Nearly eight months into his presidency, Trump has done more to hurt than to help U.S. workers, as the New York Times former labor correspondent Steven Greenhouse pointed out in a Labor Day weekend article.
      Trump's photo-op events taking credit for keeping jobs in the United States have mostly been debunked. In addition, as Greenhouse and others have pointed out, many of the administration's deregulatory moves have actually weakened protections for workers in the workplace and reduced protections for workers' savings and retirement plans.
      Now, the administration is set to open the Supreme Court's new term next month [Oct. 2] by siding with business interests and against organized labor in a case testing employees' ability to join with other workers in contesting workplace policies that violate state or federal law. In a critical legal showdown, the Trump administration's solicitor general's office reversed the position previously taken by the Obama administration and decided to support employers' right to dictate contract terms that prevent workers from collective or class actions in job-related disputes.
      The three consolidated cases the justices will hear in its first argument of the October 2017 term pose a conflict between the pro-arbitration policy of the Federal Arbitration Act and the National Labor Relations Act's protection for workers' rights to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." The three employers involved in the cases — Epic Systems Corp. v. Lewis, Ernst & Young LLP v. Morris, and National Labor Relations Board v. Murphy Oil Co. — all required employees to sign contracts agreeing to individual arbitration of any disputes.
      Federal appeals courts in Epic Systems and Ernst & Young ruled that the labor law's "concerted action" provision, enacted in 1935, overrides the provision in the 1925 law safeguarding enforcement of arbitration clauses in private contracts. The National Labor Relations Board (NLRB) similarly blocked enforcement of an arbitration clause in the third case, but on appeal the Fifth U.S. Circuit Court of Appeals cited the earlier law in rejecting the position that the agency had adopted in a 3-2 vote with the commissioners divided along partisan lines.
      The issue of seeking relief in individual arbitration versus class action whether in arbitration or in court may seem like the extra-credit question on a civil procedure exam. But the employer-dictated prohibition against any class or collective action can effectively prevent an employee from seeking any relief whatsoever.
      The employees in Epic Systems and Ernst & Young claimed that the companies had wrongfully classified them as exempt from the overtime provisions of the Fair Labor Standards Act (FLSA) and sought to file class action suits in federal court on behalf of all other similarly situated employees. Business interests rail about the abuses of class actions, but as a practical matter employment law attorneys are unlikely to take on an FLSA case just to win a few hundred or maybe a few thousand dollars for an individual worker improperly denied overtime pay.
      The Roberts Court has continued the legal trend that first emerged under Chief Justice William H. Rehnquist of allowing the Federal Arbitration Act to take precedence over legal remedies allowed under other federal or state laws. Many of the decisions came on 5-4 votes with the justices divided along the usual conservative-liberal lines. The late justice Antonin Scalia was the most outspoken of the conservatives in criticizing the supposed abuses of class actions and defending the supposed advantages of arbitration.
      The labor law issue simmered at the NLRB for several years until several cases reached federal courts of appeals with decisions that resulted in a conflict between circuits: the Seventh and Ninth Circuits siding with employees in Epic Systems and Ernst & Young respectively and the Fifth Circuit ruling against the NLRB in Murphy Oil.
      Under the Obama administration, the solicitor general's office represented the NLRB in urging the justices to back the agency's position. In June, however, the solicitor general's office filed a new brief — "after the change in administration" — rejecting the agency's position. The NLRB did not give "adequate weight to the congressional policy favoring enforcement of arbitration agreements that is reflected in the FAA," the brief stated.
      For Trump, the change in position continued the trend of siding with business interests on regulatory issues over the forgotten American workers that he claimed in his campaign as his base. In other contexts, the administration has rejected an Obama era policy aimed at extending overtime protections to an estimated 4 million U.S. workers. Greenhouse also noted that the administration postponed rules to protect workers from silica dust; scrapped rules to require federal contractors to disclose labor law violations; and indicated likely rejection of the so-called "fiduciary rule" to require Wall Street to manage retirement funds in workers' best interests.
      In the Times, Greenhouse's article appeared under the headline, "Is Trump Really Pro-Worker?" Trump's tweets to the contrary notwithstanding, the answer is a resounding no.


Sunday, September 3, 2017

Trump's Bid to Drop Arpaio Case Worse Than Pardon

      The disturbing news of President Trump's unprecedented pardoning of Arizona's federal court-defying sheriff Joe Arpaio reached me in Europe while trying to enjoy a vacation undisturbed by legal news. Back home, however, I learned the pardon was not the worst of Trump's offenses against the rule of law.
      Before the pardon, Trump violated a well established political and legal norm by personally asking Attorney General Jeff Sessions to drop the criminal charge against Arpaio. Trump apparently backed off after Sessions demurred, but in breaking the story, the Washington Post quoted Chiraag Bains, a former senior counsel in the Justice Department's civil rights division, as calling Trump's call to Sessions "beyond the pale."
      Former Attorney General Eric Holder had an apt if snarkier comment on Twitter. "Number of times over six years that President Obama called and asked me to think about dropping a case: ZERO." But a tone-deaf White House press secretary Sarah Huckabee Sanders saw nothing amiss. "It's only natural the president would have a discussion with administration lawyers about legal matters," Sanders was quoted as saying.
      The president has the broadly stated power under Article II, section 2 of the Constitution to "grant reprieves and pardons for offenses against the United States, except in cases of impeachment." The impeachment exception implies a separation-of-powers concern, limiting the president's power to override a congressional judgment to remove a federal official after a conviction for "high crimes and misdemeanors."
      Trump's pardon of Arpaio for criminal contempt of court is apparently the first instance of a presidential pardon for violating a federal court order. The same separation-of-powers concern that underlies the impeachment exception ought to caution a president against using the pardon power to undermine a federal court's power to enforce its orders.
      Instead, Trump has absolved Arpaio of flagrantly defying a federal judge's order to drop the Maricopa County sheriff's unconstitutional policy of racial profiling against suspected illegal immigrants. In Trump's eyes, his onetime comrade in arms in the birtherism controversy is not a scofflaw but a "patriot," his documented abuses in running the Maricopa County jail not worth a mention.
      Presidential pardons are typically granted to defendants convicted under dubious circumstances, given unduly harsh sentences, or seen to be rehabilitated based on model conduct in prison. Politically motivated pardons, however, are not unheard of. The first president Bush granted pardons in his final month in office to six former Reagan administration officials who had been convicted of, for example, withholding information from Congress in the Iran-contra investigation.
      Frank Bowman, a law professor at the University of Missouri, argued in an article in the online magazine Slate that Trump's pardon of Arpaio amounts to an impeachable offense. Bowman called the pardon "a direct attack on the constitutional powers of the judiciary." Trump's action, he went on, "threatens to undercut one of the indispensable, foundational norms of American constitutional order: the rule of law."
      Bowman is legally correct, of course, in the sense that the House of Representatives has broad discretion to determine what counts as an impeachable offense. Politically, however, the current Republican-majority House of Representatives has shown even less interest in challenging Trump than the largely supine GOP-controlled Senate. Even with Trump's approval at the historic low level of 34 percent, impeachment is a dead letter in the House and conviction equally impossible in the Senate.
      Apart from the pardon, Trump's personal intervention in a pending criminal case ought also to be listed as an impeachable offense. Recall that the House Judiciary Committee in 1974 listed President Richard M. Nixon's intervention in the criminal justice system and the Internal Revenue Service's enforcement of tax laws as one of the particulars in Article II of the four articles of impeachment.
      Nixon, who famously maintained an "enemies list" of political critics and opponents, was accused of having directed the IRS to initiate or conduct tax audits "in a discriminatory manner." He was also charged with having "knowingly misused the executive power by interfering with agencies of the executive branch," including the CIA, the FBI, the Justice Department's criminal division, and the Watergate special prosecution force.
      Trump's interference in Arpaio's case represents abuse for the opposite purpose: preferential treatment for a political friend rather than discriminatory treatment for a political enemy. But his action represents the same constitutional violation laid to Nixon. As the ex-DOJ official Bains put it to the Post, Trump "has a sense that the chief executive controls everything in the executive branch, including the exercise of criminal power. And that is just not the way the system is set up."
      Trump's prospective pardon of Arpaio played well to the crowd at the campaign-style rally he held in Phoenix before the formal announcement, but it has played poorly in virtually all other quarters. The conservative Washington Times gave its blessing a week before the actual pardon, but House Speaker Paul Ryan distanced himself after the fact by saying that it would have been better for Trump to have allowed the appellate process to continue.
      Among prominent columnists, criticism came from both sides. The conservative Michael Gerson called the pardon "a further step in Trump’s normalization and entrenchment of bigotry in our public life," while the liberal E. J. Dionne called it Trump's "largest single step toward autocracy." Bigotry and autocracy: reprehensible, no doubt, and impeachable but for the lack of will on Capitol Hill.

Sunday, August 27, 2017

Up From Racism: An Autobiography

            As a young boy growing up in segregated Nashville, Tennessee, I harbored racial prejudice. But an offhand remark by my third-grade teacher helped to dispel the prejudice against Negroes, as African Americans were then called, and to instill in me what became a lifelong commitment to the cause of racial justice.
            Born in 1948, I lived in an all-white working-class neighborhood and attended an all-white church. every Sunday. I enrolled in an all-white public school four months after Brown v. Board of Education and, with the slow pace of desegregation, had no black classmates through ninth grade or in the all-white private high school from which I graduated in 1965.
            In my early life, the only "Negroes" I knew personally were Barnell and Fannie, the married couple who were the custodians at my elementary school. We called them by their first names, not their surnames. I thought kindly of them, but I disliked the musty smell of the janitors' room and must have associated that smell with blacks generally.
            From age six or so, I can recall being careful not to touch or accidentally brush up against a Negro on the street, in an elevator, or at a store. I must have thought of their black as "dirty" and my white as "clean."
            My epiphany came in third grade thanks to a chance remark by my teacher, not in the classroom but in the hallway. With race relations in the news, she said something like, "They're no different from us." She influenced me more than she ever knew or might have expected.
            My parents were not overt racists: I never heard the "n" word in the house. We drove past a black church every Sunday on the way to ours: nothing was said, one way or another.
            By age 15, I had become a civil rights liberal, thanks in part to the influence of friends at my new school and in part to the hopeful excitement of the civil rights movement itself. My parents disapproved of the marches and protests, but I wrote a story for the school newspaper in spring 1963 on the college student-led effort to desegregate the nearby diner.
            I must have watched President Kennedy's televised civil rights address in June 1963. As my school's representative to the American Legion's civic education program All-State that summer, I ran for governor and echoed JFK by calling for enactment of a state public accommodations law.
            Five people had signed my petition, but the reaction to my speech was so strongly negative that I had to withdraw. One of my signers did not get the word, so I ended up with one vote: not mine.
            Back in school, I became the editor of the school newspaper and drafted an editorial calling for the school to integrate. The editorial was censored; I responded with an editorial attacking the censorship. That editorial was published and then the earlier one as well. Unbeknownst to me at the time, the principal had begun before my graduation in 1965 to notify parents and alumni that the school was preparing to admit its first black students, in the elementary grades.
            As a student at Harvard College in the late 1960s, I had black classmates of course: but acquaintances only, none of them "close" friends. I covered the "smash ROTC" student strike in 1969 as a journalist for the student radio station, WHRB. Black students added a call for an African American studies department to the list of demands; I was an observer, not a participant, but I thought the proposal worthwhile and still do.
            After college, I came back to Nashville as a reporter at The Tennessean, which strongly supported civil rights under the leadership of a great American journalist, John Seigenthaler. The Tennessean newsroom included three black reporters during my six years there. All three were friends, but not among my closest friends. The racial divide is that hard to get across.
            In four decades as a journalist, the struggle for racial justice has been a recurrent topic, never far from my mind. My current beat is the Supreme Court. I am glad when the court advances racial justice and was distressed when, for example, the Roberts Court gutted the Voting Rights Act by falsely denying the present-day reality of racism.
            In the end, my story illustrates that Lieutenant Cable is only partly right when he sings in South Pacific, "You've got to be taught to hate and fear." We are born, I fear, with some innate aversion to others unlike us: in color, nationality, religion, or the like. But my third-grade teacher also shows that one can be "carefully taught" a broader tolerance and appreciation of diversity. That lesson cannot be taught often enough: by parents, by teachers, by preachers, and by public officials—up to and including, one would hope, the president of the United States. 

Friday, August 18, 2017

Charlottesville Marchers: Few Remedies for Losing Job

      Nigel Krofta, self-identified white nationalist, was neither surprised nor upset when he learned that he had been fired from his job back home in South Carolina for participating in the "Unite the Right" rally in Charlottesville, Va.  Krofta learned the news through social media, he explained in a story posted by the Charleston television station WCSC, because he lost his phone during the tumultuous events of Aug. 12-13.
      Limehouse & Sons, the Ladson, S.C., industrial contractor where Krofta had worked, announced the firing on its own Facebook page. Krofta "is no longer an employee of Limehouse & Sons," the post read. "We do not condone the actions of the people involved in this horrific display that has taken place in Charlottesville," the post went on.
      The company's managers spotted Krofta in a picture in the New York Times standing next to James Fields Jr., the Nazi-sympathizing 20-year-old accused of killing one person and injuring 19 others by driving his car into a crowd of counterprotesters. "It was a sick feeling to know that we had somebody like that working here alongside the rest of us," a Limehouse official who asked not to be identified told the TV station.
      Krofta, who appears from his picture to be in his 20s or early 30s, took it mostly in stride. "If they're going to lose business for it, I don't blame them for it," he told the station's reporter. But he also complained that the demonstrators were being mischaracterized. "What do I say to people who say we stand for hate?" he asked rhetorically. "I just say broaden your horizons and maybe read some opposing views."
      Others in Krofta's situation — and at least three other Charlottesville marchers have lost their jobs under similar circumstances — might have immediately sought out a lawyer to get their job back or sue for damages. But David Yamada, a labor law expert at Suffolk Law School in Boston, says employers generally can fire an employee for political activities — for anything ranging from a campaign contribution up through a demonstration turned violent.
      In general, most U.S. workers are "at will" employees, as Yamada explains in a post on his blog Minding the Workplace. A worker can be fired, without notice or cause, unless the firing would violate a specific protection written into federal, state, or local law or a provision of a collective bargaining agreement or an individual contract with the employer. "Many of the civil liberties we enjoy as citizens stop at the company door," Yamada explains.
      Some states do have laws restricting an employer's ability to fire a worker because of political participation, but those laws, it appears, are not enforced or observed as strictly as the well known civil rights laws prohibiting discrimination in the workplace based on race, religion, or sex or in nearly half of the states sexual orientation. In any event, Yamada cautions that employers should be wary about monitoring their employees' off-site political activities. "We don't want employers doing much of that," he says. "It's not good for the country if people can't participate."
      The Charlottesville-related firings come in the nearly immediate wake of the heated controversy over Google's decision to fire a software engineer for writing an internal memo critical of the company's efforts to get more women into leadership roles. James Damore attributed the underrepresentation of women to inherent "personality differences" between men and women and called the company's affirmative action policies "unfair, divisive, and bad for business." Google explained the Aug. 7 decision to fire Damore by saying that he was ''advancing harmful gender stereotypes.''
      News of Google's actions generated front-page news and provoked sharp criticism of the company from the so-called "alt right," the loosely defined conservative political movement tinged with white nationalist views. Alt-right forces also sponsored the Charlottesville demonstration, but a few days after some of the marchers lost their jobs no protests have been heard about the firings.
      Yamada is somewhat critical of Google's decision to fire Damore, but he finds the virtual silence about the Charlottesville marchers' fates unsurprising. "The Google situation looks like child play compared to the issues raised by Charlottesville," he says.
      California is one of the states with laws prohibiting workplace discrimination based on political expression. One of the Charlottesville marchers who lost his job is Cole White, fired from his job at a Berkeley hot dog place, Top Dog. "The actions of those in Charlottesville are not supported by Top Dog," the company said in a sign it posted during the weekend of the demonstration.
      Trump's white working-class workers might be surprised to learn that the National Labor Relations Board, part of the much-maligned "deep state," helped a white worker get his job back after he was discharged for racist slurs directed against picket-line crossing African American replacement workers. The NLRB found that Cooper Tire & Rubber Co. had violated federal labor law by firing Anthony Runion for the picket-line slurs during a lockout at its Findley, Ohio, plant in January 2012.
      In a decision earlier this month [Aug. 8], the Eighth U.S. Circuit Court of Appeals upheld the board's ruling. The majority rejected the company's defense that it was seeking to prevent a hostile work environment after the lockout ended. In dissent, however, Judge C. Arlen Beam stated what appears to be a correct statement of the general law on the issue. "No employer in America is or can be required to employ a racial bigot," Beam wrote.

Saturday, August 12, 2017

Courts Asked to Examine Trump's 'Emoluments'

       Jimmy Carter placed his peanut farm into a blind trust before moving into the White House to eliminate any risk of conflict of interest with his presidential powers and duties. As candidate and then as president, Donald Trump made a pretense, but no more than that, of separating himself from a still undisclosed web of business interests not only in the United States but also in countries throughout the world.
       As candidate, Trump's refusal to detail his financial interests was a political issue that failed to block his path to the White House. As president, however, Trump's continuing profit from businesses patronized by foreign and state governments alike amounts to a legal issue and, according to many legal experts, an ongoing violation of two provisions of the Constitution: the domestic and foreign emoluments clauses.
      Trump is facing three separate lawsuits that accuse him, in effect, of making a personal profit out of the White House from state and foreign governments seeking to curry favor with him. The Framers of the Constitution were concerned enough about the risk of such corruption to write two separate clauses to prevent it. (For the text, see Art. I, § 9, cl. 8; Art. II, §1, cl. 7).
       Con law courses mostly skip over the Emoluments Clauses because the Framers did their jobs so well that the feared risk of official corruption has mostly failed to materialize. But the Trump presidency now challenges the Framers' handiwork with the question of how to apply the clauses to a president unwilling to accept established political norms limiting personal profit-making at 1600 Pennsylvania Avenue.
      At the six-month mark, Trump must be rated as a mostly failed president with record-high disapproval ratings and nothing by way of major legislation. But the White House has been very good for business at the Trump Hotel just down the street.
       The Trump Hotel had been projected to lose $2 million in the first four months in 2017, but instead turned a $2 million profit, according to an account in the Washington Post (Aug. 11). Rooms at the hotel rent for $600 a night and cocktails sell for as much as $100 to patrons who include foreign diplomats, political figures, and business interests. In another instance of price gouging, fees at Trump's Mar a Lago golf resort were doubled in January over what they had been a year earlier.
      The Emoluments Clause lawsuits may be misunderstood by some as asking courts to oust Trump as president; they are not. The lawsuits ask courts to define the scope of the clauses broadly, find Trump in violation of the clauses, and prohibit any further violations. The remedy would be a huge judicial undertaking, but it would not entail a reversal of the 2016 election even if some of those cheering the lawsuits on would welcome that result.
      The lawsuits serve a salutary purpose even if ultimately unsuccessful. If the plaintiffs are allowed broad discovery, the public can finally learn the details of Trump's finances that he refused to disclose during the campaign.That information would help the public judge his presidency and would also help members of Congress in considering their own powers, up to and possibly including impeachment.
      For now, questions such as those are months down the road as the three pending lawsuits move slowly through separate courts. In the first of the three, the Washington-based Citizens for Responsibility and Ethics (CREW) in Washington is leading an assortment of private plaintiffs in a suit filed in January in federal district court in New York City. Other plaintiffs include a hotel and restaurant owner in New York City and an event booker in Washington, who say they are hurt by the competitive advantage Trump enjoys thanks to being president. The two other suits are pending in federal court in Washington: one brought by the District of Columbia and Maryland and the other by a record 196 members of Congress (Blumenthal v. Trump).
      CREW's suit is now set for an initial hearing before Judge George Daniels on October 18 after opening legal briefs from both sides and from various friends of the court. In the interest of brevity, the briefs will be crunched down here to the major points of disagreement.
      The first issue is the very definition of the word "emolument," so little used in common parlance. The Justice Department lawyers representing Trump argue that it does not encompass profits from arms-length commercial transactions, only compensation for official services. Both sides cite dictionary definitions, but etymology favors the broader construction argued in the plaintiffs’ brief. The root is the Latin verb "molere" meaning to grind. In Middle French, an emolument was the fee the farmer paid to the miller for grinding: an arms-length commercial transaction of the sort Trump's lawyers say is excluded.
      Trump's lawyers naturally argue the plaintiffs have no standing, but the competitively disadvantaged business operators make a good case that they are being hurt right now. Just as naturally, the Justice Department argues that courts have no power to enjoin the president: they cite a 150-year-old Supreme Court decision as authority, but skip lightly over more recent decisions. Like so much of Trump's unpredictable presidency, the outcome defies predictions. For court watchers and public alike, the best advice: stay tuned.

Sunday, August 6, 2017

As AG, Justice Not on Sessions' Agenda

      Attorney General Jeff Sessions might have had a momentary chill when his assistant told him last weekend [July 29] that the White House was on the line. But the caller, it turned out, was not his berating tweeter in chief, President Trump, but the new White House chief of staff, John Kelly, calling to assure Sessions that he could rest easy about staying in office.
      Thus reassured, Sessions still spent the next week doing what he could to raise himself in Trump's esteem with, among other policy moves, a full-scale press op to detail a resource-fed crackdown on leakers. Trump had recently taken to describing Sessions in tweet storms as "weak" and "beleaguered" based on apparently inadequate prosecutorial attention to a rash of unauthorized disclosures weakening his already weak presidency.
      The press conference that Sessions convened along with two top Trump administration intelligence officials [Aug. 4] followed news from earlier in the week that the Justice Department was deploying its civil rights division to crack down on racial preferences in college and university admissions. Ironically, news of the policy shift emerged not from an official announcement but from a leak to the New York Times's well-sourced reporter, Charlie Savage.
      The leak helped renew the vigorous debate over affirmative action in political, legal, and media circles: the pros and cons of racial preferences for minority applicants themselves; the larger role of "legacy preferences" in favoring white applicants; and the possible effect of preferences for African American and Hispanic applicants on Asian American applicants. In political terms, however, the details of that debate are less important than the signal that Sessions' policy shift sends to Trump's political base and to the conservative legal movement.
      Those constituencies undoubtedly view Sessions' latest policy shift favorably as a clear sign that Alabama's favorite son is on their side in the culture war against the coastal elites —  the "cosmopolitans," as White House aide Stephen Miller might call them. Already in just six months, Sessions has shifted Justice Department policy on civil rights by backtracking from the Obama administration's opposition to Texas's voter ID law as racially discriminatory and by formally opposing the Equal Employment Opportunity Commission's position treating anti-LGBT discrimination as illegal under existing federal civil rights laws. In his confirmation hearing, Sessions endorsed voter ID laws and disclaimed any knowledge of anti-LGBT discrimination.
      The anti-leaking event gave Sessions the chance to rail about "the culture of leaking" only a week after Trump's latest tweet that Sessions had "taken a VERY weak position" on "Intel leakers. In contrast to the reversals of Obama policies, Trump told the assembled reporters in the department's seventh-floor conference room that the department is following and actually outstripping the previous administration by tripling the number of leak investigations over the number ongoing as Obama left office.
      The leak investigations that the Justice Department identified for the Washington Post's reporters covering the event are not the kind that Trump is complaining about. Only one of the four related to the media: the leak of a top-secret National Security Agency document to a news organization from Reality Leigh Winner, a 25-year-old government contractor. The other three cases listed by the DOJ spokesman all related to contacts with or disclosures to foreign intelligence agents.
      Journalists naturally flinch when the government talks about cracking down on leaks. Tellingly, Sessions declined at the news conference to repeat previous Justice Department reassurances that journalists would not be prosecuted for publishing truthful information or that journalists would be subpoenaed to disclose sources only under limited circumstances.
      Sessions' silence on those concerns is troubling of itself, but more troubling is the extravagantly broad view that Trump and his supporters are taking of what constitutes an "illegal" leak. Trump and any number of his cable news apologists constantly complain about James Comey's supposedly illegal leak of his conversation with Trump while still FBI director in January: the conversation in which Trump allegedly asked Comey to end the investigation of former national security adviser Michael Flynn.
      Comey's divulging of that conversation, through an intermediary, was embarrassing to the White House certainly, but in no way illegal. No classified information was released, nor any details as to the FBI's pending investigation: only the president's views and his policy directive. Consider how often government officials, members of Congress, or private citizens go straight from an Oval Office conversation to recount the conversation to reporters waiting just outside the mansion. That is not a felony, only part of governance in a free-press, democratic republic.
      Sessions won confirmation as attorney general on a 52-47 vote in the Senate, with the support of his 51 Republican colleagues and one Democrat: West Virginia's Joe Manchin. Sessions remains the same hard-line conservative that he was before that vote and in his confirmation testimony, but today he enjoys support from both sides of the partisan aisle thanks to Trump's criticism of him for failing to recuse himself from the Russia investigation.
      Kelly's call to Sessions may show that Trump has either dropped or been dissuaded from any idea of firing him as a first step in removing Robert Mueller as special counsel for the Russia investigation. For the sake of that investigation, Sessions may still be needed in his post. But make no mistake: as attorney general, justice is not on Jeff Sessions' agenda.

Sunday, July 30, 2017

At White House, Irregular Order as Things Fall Apart

      Arizona's John McCain was praised from all sides when he returned to the Senate floor from his hospital bed on Tuesday [July 25] to plead for a return to "regular order" in the Republican-led drive to repeal and replace Obamacare. At the other end of Pennsylvania Avenue, however, it was irregular order as usual the next day when President Trump used a series of early morning tweets to announce that transgender individuals would no longer be allowed in military services.
      Trump's abrupt three-tweet fiat early Wednesday morning came with Defense Secretary Jim Mattis on vacation and the Pentagon and the service chiefs awaiting completion later this year of a study on how to implement the Obama administration's decision to lift the prior ban on transgender individuals in the military. Trump claimed to have consulted with "my Generals and military experts" before making the decision, but two news cycles later none of those supposedly consulted in advance had been identified.
      At the least, Mattis was not consulted but "informed" of the decision on Tuesday, according to the Wednesday briefing by newly White House press secretary Sarah Huckabee Sanders. The Joint Chiefs of Staff issued a memorandum to the services on Thursday clarifying that no presidential order had been received and nothing would change until and unless an order was received.
      The transgender ban, widely denounced and widely depicted as unlikely to survive the inevitable legal challenge, was one of two body blows the Trump administration delivered to the LGBT community on Wednesday. The Justice Department filed a friend-of-the-court brief the same day with the federal appeals court in New York City to argue against recognizing anti-LGBT discrimination to be illegal under the Civil Rights Act of 1965.
      The brief — signed by lawyers in Justice's civil division, not the civil rights division — comes in a case, Zarda v. Altitude Express, to be argued in late September before the full Second Circuit appeals court. The court's eventual decision will be a tie-splitter of sorts between conflicting decisions on the issue within the past year by the Seventh and the Eleventh Circuit courts.
      The brief puts the Justice Department at odds with the Equal Employment Opportunity Commission (EEOC), which has taken the position for several years that Title VII's prohibition against discrimination on the basis of sex necessarily precludes discrimination on the basis of sexual orientation or gender identity as well. Robert Loeb, a Washington lawyer who served in Justice's civil division for 20 years, noted that the civil division's lead role in the case signaled a "political decision" behind the position. "It shows that it's not being treated as a civil rights issue," he said.
      The news of the Justice Department brief went viral in the LGBT community and in legal circles generally, but it was buried in the day's news coverage by the continuing chaos in the White House. The transgender ban is only the latest of many examples of policymaking by tweet in Trumpland. Trump has been using 140-character tweets for the past two weeks to berate his attorney general, Jeff Sessions, and all but beg him to resign to spare the president the trouble of firing him.
      Trump's discontent with Sessions originates with the attorney general's ethically required decision to recuse himself from overseeing the investigation of any Trump campaign connections to Russian agents seeking to influence the  2016 election. But Trump added to the bill of particulars by describing Sessions as "weak" and pressing him to investigate and presumably prosecute his Democratic opponent Hillary Rodham Clinton and any of the "leakers" responsible for damaging disclosures from within the administration
      Leaks are also on the mind of the White House's new communications director, Anthony Scaramucci, who  was sucking up to his boss by publicly promising to crack down on supposed leakers working right there at 1600 Pennsylvania or next door in the old Executive Office Building. Scaramucci is sucking up to his boss by depicting leaks and leakers as the reason why Trump's legislative initiatives are mired in congressional quicksand. Scaramucci was promising to fire any leakers inside the White House and naming the on-his-way-out chief of staff Reince Preibus as one of those in his crosshairs.
      Even with chaos at the White House and in the Senate, Trump's supposed transgender ban still ranks near the top of the list of self-inflicted wounds. Trump's stated rationale was to avoid burdening the military with "tremendous medical costs and disruption." That rationale was actually contradicted by a study already completed by the respected, nonpartisan RAND Corporation.
     The impetus for the ban came not from the military but from Capitol Hill, where the House was tied up on an amendment to prohibit the military from paying for the medical costs of transitioning for transgender service members. The RAND study estimates the number of current transgender service members at 11,000 and says medical costs would be a pittance: $2 million to $8 million a year, less than the military spends on erectile dysfunction meds.
      Asked whether current transgender service members would be expelled, Sanders had no answer other than time will tell. That was also Trump's verbatim answer when asked whether Sessions would stay in office. On both of those issues, Trump was suffering defections during the week from emboldened Republicans on Capitol Hill. The disarray calls to mind the line from Yeats' famous poem: "Things fall apart."

Sunday, July 23, 2017

Trump Leaving His Mark on Federal Courts

      The White House may be in total disarray and the Senate in legislative deadlock, but Donald Trump still has the wherewithal to find conservative ideologues to nominate for lifetime seats on federal courts and get them confirmed by subservient Senate Republicans.
      At the six-month mark of his presidency, Trump's supporters and apologists put the confirmation of Supreme Court Justice Neil Gorsuch at the top of a short list of significant accomplishments. Even though hard-fought and narrowly won, Gorsuch's confirmation shows the White House a path toward more victories to feed to the minority of Americans who constitute Trump's political base.
      Against that backdrop, it bears repeating that Trump is on a record pace of judicial nominations at this point in his popular-vote loss presidency, according to figures compiled by Ronald Klain, a veteran Democratic politico, for an op-ed in the Washington Post. Trump's 27 nominations for federal district court judgeships through mid-July are more than three times Obama's total for the comparable period and double the number for Reagan, Bush41, and Clinton combined, according to Klain's count.
      For the federal courts of appeals, Trump has named nine nominees; no president before Trump has named more than three whose nominations were processed in his first six months, according to Klain. Trump's opportunities are a gift from Senate Republicans, who did far more than block Merrick Garland's Supreme Court nomination last year. They also left a record 137 federal judicial vacancies for Trump to begin filling on his first day in office.
      Trump picked up a win last week when the Senate confirmed an anti-gay conservative lawyer and intemperate political blogger to the federal appeals court for the four-state circuit that includes my home state, Tennessee. John Bush won confirmation to the Sixth U.S. Circuit Court of Appeals by a strictly party-line vote of 51-47.
      On paper, Bush has the basic qualifications for a federal judgeship: a Harvard law degree, a clerkship with a federal appellate judge, and two decades as a commercial litigator with a well-regarded Louisville law firm, as the invaluable blog The Vetting Room detailed in its coverage. But the political rants that he posted for years under a pseudonym on a political blog created by his wife mark him as lacking the judicial temperament and sound judgment that are as important, if not more so, than academic and professional credentials.
      Two liberal groups, People for the American Way and Alliance for Justice, helped spearhead opposition to the nomination in advance of Bush's contentious Senate Judiciary Committee hearing last month. Gay rights groups, including the Human Rights Campaign, joined in urging his defeat based on, for example, a blog post mocking the State Department's revision of the passport application to accommodate same-sex marriages. The critics also cited a post that likened the Supreme Court's infamous pro-slavery decision in the Dred Scott case to the reproductive rights decision in Roe v. Wade.
      Bush got an unenthusiastic passing grade of "qualified" from the American Bar Association's Standing Committee on the Federal Judiciary, not the other, higher rating of "well qualified." In fact, Bush's qualifications pale in comparison to the typical nominee for a federal circuit court. More commonly, a circuit court nominee has a distinguished record as a law school professor, state or federal judge, or other government official. On the current Supreme Court, the eight justices who served on federal circuit courts all had qualifications like those before their nominations.
      In place of objective qualifications like those, Bush's record included political lawyering and, perhaps most important, two decades of helping to lead the Louisville chapter of the Federalist Society. The Federalist Society has been a career ladder for would-be federal judges under Republican administrations dating to its founding in the Reagan era.
      Under Trump, the relationship has been de facto formalized: Gorsuch was on the list of 20 names for the Supreme Court post that the group submitted at Trump's request during the presidential campaign. Trump marked the successful confirmation vote by meeting at the White House in pep rally-style with Federalist Society leaders.
      Bush's lawyering included work on Reagan's Iran-contra defense team. As commercial litigator, he worked on behalf of a tobacco company in an unsuccessful court get out of its obligations under the master settlement that tobacco companies negotiated with state attorneys general. On the other hand, he also represented the Louisville Area Chamber of Commerce in an amicus brief at the Supreme Court unsuccessfully urging the justices to uphold the school district's desegregation policies.
      In the final hour of debate on Bush's nomination, his fellow Kentuckian, Senate Majority Leader Mitch McConnell, urged senators to confirm "my friend John Bush." McConnell minimized the controversy over Bush's blog posts by noting similar blogging by previous Democratic judicial nominees. Minnesota Democrat Al Franken rejected the comparison by noting that Bush's posts included endorsement of the phony Obama "birtherism" controversy and links to alt-right and conspiracy-theory sites. The job, Franken noted, is "judge" and the job requires "judgment," which he said was lacking in Bush's blogging.
      Thirty years ago, six Republican senators crossed party lines to add to the margin of defeat for Robert Bork's nomination to the Supreme Court. That was then, this is now. Franken's plea fell on deaf ears on the Republican side of the aisle. With political independence in short supply among GOP senators, a president who openly disdains the rule of law is on a path to leaving a lasting, black mark on the federal judiciary.

Sunday, July 16, 2017

Court's Un-Common Sense on Sex Offenders

      The Supreme Court hit a home run in First Amendment terms with its unanimous decision to strike down a North Carolina law that banned convicted sex offenders from accessing commercial social networking sites used by minors for personal profiles or the like. But the court's decision in Packingham v. North Carolina was more than a free-speech victory. The decision also injected some uncommon good sense into the  debate driven generally by irrational panic and flawed statistics over how the criminal justice system should deal with sex offenders.
      As a First Amendment case, the court had no difficulty whatsoever in ruling North Carolina's social media ban fatally overbroad. But Justice Anthony M. Kennedy's opinion for a five-justice majority charted a new path for the First Amendment by declaring social media to be the 21st century equivalent of the free speech-protected public square. Banning sex offenders from such sites as Facebook and Twitter prevented them from "the legitimate exercise of First Amendment rights," he wrote.
      The ban also made no sense as penology, Kennedy explained. "Even convicted criminals — and in some instances especially convicted criminals — might receive legitimate benefits from these means for access to the world of ideas," he wrote, "in particular if they seek to reform and to pursue lawful and rewarding lives."
      As with so many free-speech cases, the government's challenged policy was blatantly irrational in the specific case before the court. Lester Gerard Packingham Jr. —  known to friends and family as J.R. — was no sexual predator even when he pleaded guilty to indecent liberties with a 13-year-old back in 2002. And the Facebook post that landed him in legal trouble again in 2010, long after his probation had ended, was no sexual come-on but merely a playful celebration of having beaten a traffic ticket.
      North Carolina had been one of the first of the states back in 2008 to craft a law aimed at preventing the admittedly common use of social media for sexual abuse and victimization of minors. Within the span of a few years, most of the states had adopted disclosure as a preventive policy. Sexual offenders, registered with the state under laws on the books throughout the country, were required to disclose their Internet identifiers to authorities as a safeguard of sorts against improper behavior on the 'Net. Some of those laws were upheld in court, others struck down.
      The Tarheel State was one of two states to adopt a social media ban instead. Louisiana's law was struck down in 2012. The North Carolina law, known as section 202.5, made it a felony for a registered sex offender to access a commercial social media web site if he knew it allowed use by minors for personal profiles and two-way communication. Significantly, the ban applied to any use of the site, not specifically to posts aimed at or communications with minors. As Packingham's lawyer told the Supreme Court during oral arguments, he risked violating the law for doing nothing more than responding on Facebook to any of the posts discussing his case.
      Packingham was a 21-year-old college student when he pleaded guilty to the reduced sex offense count back in 2002. The facts of the case were kept off public records, but the judge evidently viewed the offense as minimal. He suspended Packingham's six- to eight-month prison sentence. "No one ever thought he was a pedophile," according to David Goldberg, the Stanford law clinic instructor who represented Packingham at the Supreme Court.
      Convicted in 2012 under section 202.5, Packingham again was given a suspended sentence. He had challenged the law as unconstitutional before trial in tandem with a second defendant, Christopher Johnson, charged under the law. Johnson told the court that he had been fired from an IT consulting job because it required access to social media. Goldberg said that Packingham has used his graphic design degree to help with his church's web site but that the social media ban has held him back in career terms.
      The sex offender policies adopted over the past two decades have to some extent been based on fake data. Law enforcement officials, lawmakers, and judges all the way up to the Supreme Court have accepted as scientific truth a false myth that sex offenders have a high degree of recidivism — that is, repeat offenders.
      The myth appears to be traced back to an article in a non-peer reviewed popular magazine, but has shown up in, among other places, Supreme Court opinions. The myth is so strong that Justice Sonia Sotomayor, no dupe for law enforcement, referred to it as fact during arguments in Packingham's case. Scientific studies reviewed in a Justice Department report in 2001 found relatively low rates of recidivism among sex offenders compared to other offenders. The studies indicated a range between 10 percent and 29 percent for child molesters with female victims and between 13 percent and 40 percent for child molesters with male victims.
      Tellingly, the North Carolina legislature approved section 202.5 unanimously with support from the then Democratic attorney general and the then Democratic governor. At the Supreme Court, none of the justices found the law constitutional and five of them rejected it as senseless public policy. Goldberg said that Packingham's immediate response when he heard the news of the decision was a single word: "Hallelujah." Amen.


Sunday, July 9, 2017

Gorsuch 'More Conservative' Than Scalia in First Months

      Supreme Court Justice Neil M. Gorsuch celebrated the Fourth of July by joining the holiday parade in the small Boulder County community of Niwot. Gorsuch "worked the parade like a senator, not a sitting Supreme Court justice," according to a reporter for the left-leaning news site Rewire.
      As Colorado's second Supreme Court justice in history (after Byron R. White), Gorsuch was welcomed by most in the crowd as home boy made good, but dissent was heard. One spectator greeted Gorsuch by mocking his appointment to a seat that, by all historical practice, rightfully belonged to Merrick Garland. Martha McPherson's sign stated her opinion in all caps: "USURPER GORSUCH SUCH A SHAM."
      Back in Washington, Gorsuch was also drawing attention as court watchers and advocates and experts across the ideological spectrum assessed the first three months of a high court career that could last 30 years. Advocates on the left and the right appeared to agree on one point: Gorsuch could be on the way to being more conservative than his lionized predecessor, Antonin Scalia.
      The New York Times editorial board was still referring to Gorsuch's seat as "stolen" as conservatives chortled over the appointment. In an op-ed for The Wall Street Journal, the conservative legal academics John Yoo and Sai Prakash said that conservatives "hit the jackpot" with the Senate Republicans' gamble to block Garland's confirmation.
      Yoo, the Berkeley law professor who wrote the infamous torture memo while with the Bush Justice Department, and Prakash, a U-Va. law professor, described Gorsuch as a "robust originalist," more like Clarence Thomas than the self-described "fainthearted originalist" Scalia. They saw him as part of a conservative bloc with Thomas and Samuel A. Alito Jr. that would "expose" the "directionless middle" occupied by the others in the Republican-appointed majority, Chief Justice John G. Roberts Jr. and associate justice Anthony M. Kennedy.
      Gorsuch was confirmed to the life-tenured seat by a bitterly partisan 54-45 vote in the Senate, the fourth closest margin ever for a confirmed justice. The narrow vote caused Gorsuch no hesitation at all in staking out distinctively conservative positions on the bench or in his votes and opinions.
      Gorsuch "hit the ground running," remarked Jonathan Adler, a conservative professor at Case Western Reserve Law School in Cleveland. Michael Gerhardt, a liberal law professor at the University of North Carolina in Chapel Hill, agreed. "He's probably off the mark faster than people might have anticipated," Gerhardt said.
      In fact, Gorsuch was unusually active in his first day on the bench, with 22 questions in the first of three arguments on April 17, according to Adam Feldman, a postdoctoral fellow at Columbia Law School and creator of the blog Empirical SCOTUS. Gorsuch asked 12 questions in the next case, but slowed down somewhat in the rest of the April calendar, according to Feldman's count. Still, with 108 questions in 13 hour-long arguments, Gorsuch's average of eight questions per argument appears to be higher than similar counts for other newly-arrived justices.
      In that very first argument, Gorsuch began to display what Gerhardt calls his "little bit of arrogance" — in that case toward the lawyers and later in his opinions toward his fellow justices. The issue in Perry v. Merit Systems Protection Board was how to apply a devilishly complicated federal statute on appeals in federal employee discipline cases. With the government's lawyer struggling, Gorsuch tartly interrupted at one point: "'Wouldn't it be a lot easier if we just followed the plain text of the statute?''
      Gorsuch dissented from the eventual 7-2 decision in the case, convinced that Justice Ruth Bader Ginsburg had rewritten rather than scrupulously followed the law. In dissent, he lectured his Ivy League-graduate colleagues as though they were in a ninth-grade civics class. "If a statute needs repair," Gorsuch wrote, "there’s a constitutionally prescribed way to do it. It’s called legislation."
      Gorsuch's vote helped produce conservative 5-4 decisions in two of the cases from the April calendar: a death penalty case from Texas, Davila v. Davis, and a class actions case, California Public Employee Retirement System v. ANZ Securities. He was among four dissenters in a second death penalty case, McWilliams v. Dunn, where Kennedy provided the fifth vote for the liberal bloc. 
      Apart from the votes, Gorsuch wrote or joined opinions to the right of the other conservatives. In Trinity Lutheran Church v. Comer, Gorsuch joined with Thomas in calling for allowing more government aid to church-affiliated schools than Roberts envisioned in his famous footnote 3. In Weaver v. Massachusetts, Gorsuch joined Thomas in a concurrence to question the recent precedent requiring jury selection in criminal trials to be open to the public. And he wrote separately in the unanimous decision in Maslenjak v. United States to complain that Justice Elena Kagan should not have offered advice on how to apply the decision in lower courts.
      Gorsuch ended the term by going farther to the right. He joined with Thomas and Alito in voting to uphold President Trump's travel ban in its entirety. He wrote the dissenting opinion for the threesome objecting to the summary decision in Pavan v. Smith that married same-sex couples are entitled to have both parents' names listed on a child's birth certificate, just like opposite-sex couples. And, along with Thomas, he chided the majority for refusing in Peruta v. California to take up a Second Amendment challenge to California's limits on going armed outside the home.
      All in all, Yoo and Prakash could not have been more pleased. Gorsuch, they wrote, " has lived up to supporters’ greatest hopes and critics’ worst fears." SCOTUSblog publisher Thomas Goldstein says Gorsuch "brings restored conservative energy" to the court and predicts, in the fact of the historic degree of unanimity during the past term, "historically high fractiousness" during the new term to open in October.

Sunday, July 2, 2017

'Easy' Church-State Case May Make Bad Law

      Hard cases make bad law, it is said. For the Supreme Court, the dispute over government aid to resurface a church school playground in Missouri turned out to be a somewhat easy case. The question now is whether the surprisingly easy case will make bad law by limiting the power of states to enforce constitutional provisions prohibiting government assistance to private schools, whether secular or sectarian.
      The 7-2 decision in Trinity Lutheran Church v. Comer [June 26] found that Missouri had violated the Free Exercise Clause by rejecting the church's application for a government grant to resurface its playground in the interest of child safety with a rubberized material made of recycled automobile tires.
      The court had expected the case to be difficult. Oral arguments had been postponed for more than a year after Justice Antonin Scalia's death in February 2016, apparently because of fears of an inconclusive 4-4 split from the shorthanded court.
      With Justice Neil Gorsuch confirmed for the ninth seat, the justices heard arguments on April 19. From the justices' questions, the solidified conservative bloc appeared likely to pick up the votes of liberal justices Stephen G. Breyer and Elena Kagan in a ruling for the church. Only liberal justices Ruth Bader Ginsburg and Sonia Sotomayor seemed likely to stake out a strict church-state separationist position in dissent.
      The court followed the day after the decision by sending somewhat analogous cases back to the Colorado and New Mexico supreme courts to reconsider their decisions blocking state aid to non-public schools. Writing for the majority in Trinity Lutheran, Chief Justice John G. Roberts Jr. had given little weight to the Missouri constitution's provision that prohibits any funds "from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion . . . ."
      Roberts dismissed the state's interest in enforcing that provision, in part to steer clear of breaching the U.S. Constitution's prohibition against establishment of religion, as a mere "policy preference." Missouri's constitutional prohibition against aid to churches dates from its admission as a state in 1820. The constitutional provisions in Colorado and New Mexico are equally unambiguous in prohibiting aid to private schools and, like Missouri's, date from the states' admissions to the Union.
      In his opinion, Roberts described Missouri's prohibition on government aid to churches or religious sects or denominations as "odious" discrimination and even likened it to "persecution." Apart from the slightly overheated rhetoric, Roberts dropped a delphic footnote seemingly aimed at narrowing the scope of the decision.
      The case "involves express discrimination based on religious identity with respect to playground resurfacing," footnote 3 specifies. "We do not address religious uses of funding or other forms of discrimination." That caveat seems to embody the judicial restraint so revered by legal conservatives, but Gorsuch and his joined-at-the-hip conservative colleague Clarence Thomas both rejected the footnote and its implied minimalism.
      Gorsuch acknowledged the footnote — "of course"— as "entirely correct" but warned against reading the decision too narrowly. The decision, he said, would not permit "discrimination against religious exercise — whether on the playground or anywhere else." In his opinion, Thomas called for overturning the recent, 7-2 precedent in Locke v. Davey (2004) that allows states to deny scholarships for students training for the ministry.
      In her dissenting opinion, Sotomayor accused the majority of a radical break with legal precedent and historical practice dating back to the Framers. The ruling, she emphasized, marked the first decision to hold that the Constitution requires the government to provide public funds directly to a church. The decision, she went on, "weakens the country's longstanding commitment to a separation of church and state beneficial to both."
      Sotomayor rejected the majority's depiction of the case as a "simple" one that concerned nothing more than playground safety. Trinity's Learning Center had a religious mission and used the playground to "practice and spread" religious views, she said. Without specifically referencing Roberts's footnote 3, she rejected its logic. "The playground surface cannot be confined to secular use any more than lumber used to frame the Church’s walls, glass stained and used to form its windows, or nails used to build its altar,” she wrote.
      In the oral argument, Justice Samuel A. Alito Jr. scored points for the conservative bloc by asking whether, under Missouri's constitution, a church could be denied government funds for such secular purposes as earthquake safety or counterterrorism security. The lawyer representing the state stressed that Missouri's constitution —  as construed before the state's shift of position in the playground case itself —  would have barred funds for a church but not for a school as long as it was not operated directly by a church.
      For Alito and other conservative justices, Missouri's constitution was tainted by the anti-Catholic prejudice that helped drive the later adoption of similar amendments in, according to Sotomayor's count, 38 other states. All those provisions may now be living on borrowed time even when written as broadly applicable prohibitions on aid to non-public schools of any stripe. The Colorado and New Mexico supreme courts now have to try to square their states' policies with a Supreme Court majority that sees its mission as lowering the wall that has helped preserve religious freedom in the United States by keeping church and state apart.