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.

Tuesday, June 27, 2017

Court Restores Trump's Travel Ban as Term Ends

      The Supreme Court ended a strangely incomplete term in dramatic fashion on Monday [June 26] by allowing President Trump's travel ban to take effect despite a string of lower court decisions blocking the controversial executive order.
      In a term with no true blockbusters, the court's decision to substantially narrow injunctions against what Trump described as a "watered-down" ban on travel from six predominantly Muslim countries amounted to a veritable bombshell at the end of the court's final sitting for the term.
      Chief Justice John G. Roberts Jr. ended the business part of the half-hour session by announcing that the court had agreed to hear the government's appeal of two decisions blocking Trump's executive order. The court, he explained, had also voted to stay the injunctions issued by the Fourth U.S. Circuit Court Appeals in a Maryland case and by the Ninth U.S. Circuit Court of Appeals in a suit originally brought by the states of Hawaii and Washington.
      The unsigned, 13-page opinion handed out in the Supreme Court's pressroom as Roberts spoke described the injunctions in Trump v. International Refugee Assistance Project and Trump v. Hawaii as overly broad and unmindful of the government's "interest in preserving national security." As revived by the court on an interim basis, Trump's EO-2 (technically, Executive Order 13780) will bar visas for foreign travelers from Iran, Libya, Somalia, Sudan, Syria, and Yemen unless the traveler has "a bona fide relationship with a person or entity in the United States."
      As examples, the unsigned opinion cited relatives of U.S. citizens, students admitted to U.S. schools, or workers with accepted offers of employment. In a dissenting opinion for three conservatives, Justice Clarence Thomas said he would have allowed the executive order to take effect as written and warned that the exceptions would prove to be "unworkable." Justices Samuel A. Alito Jr. and Neil M. Gorsuch joined his opinion.
      The majority opinion was apparently joined by Roberts, Justice Anthony M. Kennedy and the court's liberal justices: Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan. The actions on the applications for the stay and the government's petitions for certiorari were taken on the basis of written briefs without oral argument. Surprisingly, none of the Democratic-appointed liberal justices objected to lifting the injunctions issued by the Fourth Circuit on a 10-3 vote [May 25] and unanimously by a three-judge Ninth Circuit panel [May 15].
      Trump issued a somewhat formal, 114-word statement calling the court's action "a clear victory for our national security." But Omar Jadwat, director of the American Civil Liberties Union's Immigrants’ Rights Project and lead lawyer in the Maryland case, welcomed the court's decision to hear arguments on the ban in the fall following the earlier rulings against it. "The Supreme Court now has a chance to permanently strike it down,” Jadwat said.
      In a term with a modestly liberal cast to several decisions, the conservative bloc appeared to be refortified and somewhat ascendant as the justices prepared for their summer recess. Roberts delivered a resounding 7-2 victory for political and religious conservatives in the term's most closely watched case by easing a provision in Missouri state constitution barring government funds to churches or other religious institutions.
      The case arose in the unlikely context of a state program providing grants to non-profit entities to buy recycled automobile tires to rubberize playground surfaces in the interest of safety. Trinity Lutheran Church in the university town of Columbia applied for a grant for its church-school playground and scored well, but the state's Department of Natural Resources cited the state constitutional provision in rejecting the application.
      Roberts's majority opinion in Trinity Lutheran Church v. Comer found the church's disqualification to amount to religious discrimination in violation of the First Amendment's clause guaranteeing "free exercise of religion." He likened the government's action at one point to faith-based "persecution." Three justices joined Roberts's opinion in full: Kennedy, Alito, and Kagan. Thomas and Gorsuch joined all but a single footnote that limited the decision to "playground resurfacing" without ruling on "religious uses of funding." Breyer also wrote a separate opinion concurring in the judgment on somewhat narrower grounds.
      Sotomayor emphasized a dissenting opinion nearly twice as long as Roberts's by reading substantial portions from the bench. Sotomayor called the decision a "radical" break from historical tradition by holding — "for the first time" — "that the Constitution requires the government to provide public funds directly to a church." She warned that the ruling casts doubt on constitutional provisions akin to Missouri's in 30 states. Ginsburg joined her opinion.
      The case was one of 13 argued before a nine-justice court in April after Gorsuch's swearing in on April 10 on the strength of his 54-45 Senate confirmation. The court issued two other decisions from the April calendar on Monday, with conservatives prevailing in each by 5-4 votes. Thomas's opinion in Davila v. Davis barred death row inmates from challenging their sentences on the basis of ineffective assistance by lawyers in post-conviction proceedings. Kennedy's opinion in California Public Employees' Retirement System v. ANZ Securities refused to allow the big public pension system extra time for a securities-fraud lawsuit after having dropped out of a class action suit to litigate the case on its own.
      The liberal bloc had prevailed with Kennedy's help in some earlier five-vote decisions. Kennedy's 5-3 opinion in Peña-Rodriguez v. Colorado allowed criminal defendants to challenge convictions based on evidence of racist comments in the jury room. Ginsburg wrote a 5-3 decision in Moore v. Texas that instructed the state to update the standards for finding defendants ineligible for the death penalty on the basis of intellectual disability. Roberts gave the liberal bloc a fifth vote in the decision in Bank of America v. City of Miami to allow the city to sue banks under the Fair Housing Act for predatory loans in minority neighborhoods. And Thomas, oddly, provided the pivotal vote in the 5-3 decision in Cooper v. Harris to overturn a Republican-crafted redistricting plan as an improper racial gerrymander because it packed more minorities into legislative districts than needed to comply with federal law.
      Some other closely watched cases transcended the prevalent ideological lines. In a pair of free speech victories, the court unanimously struck down a federal law prohibiting registration of racially disparaging trademarks (Matal v. Tam) and a North Carolina law prohibiting convicted sexual offenders from using social media (Packingham v. North Carolina). And early in the term the court was unanimous in setting aside the $400 million judgment that Apple had won in a patent infringement suit against Samsung, its Korean rival in the smartphone wars (Samsung Electronics Co., Ltd. v. Apple Inc.).
      Court watchers had been waiting on Monday for decisions in three cases argued in December, January, and February. The court issued a limited ruling in Hernández v. Mesa instructing the federal appeals court for Texas to reconsider a suit by the parents of a Mexican teenager killed in a cross-border shooting by a U.S. Border Patrol Agent. In two other cases, the court scheduled rearguments in the next term--presumably, because the eight justices were evenly divided in the two immigration-related cases. Gorsuch is thus likely to have the decisive votes in Jennings v. Rodriguez, a case concerning rules for detention of aliens, and Sessions v. Dimaya, a case concerning use of state felony convictions as a basis for deportation.
      The court's final decision day came on a milestone date for LGBT rights advocates. The court's marriage-equality decision in Obergefell v. Hodges was issued on the same date in 2015; the rulings to strike down the Defense of Marriage Act and state anti-sodomy laws also both came on June 26, in 2013 and 2003 respectively. The court took no note of the anniversaries, but it did issue an unsigned, summary 6-3 decision in Pavan v. Smith to require the state of Arkansas to list a lesbian wife along with a child's biological mother on the child's birth certificate. Gorsuch wrote a dissent, joined by Thomas and Alito, arguing the issue warranted full briefing and oral argument.
      In all, the court issued a record low number of signed decisions in argued cases,  only 61, and nine other unsigned or per curiam opinions, including the interim ruling in Trump; the unsigned ruling in the argued case, Hernández; and six others, including Pavan, issued without oral argument. Among argued cases, 33 were unanimous — or an abnormally high 53 percent.
      In win-loss compilations, business interests prevailed over workers, consumers, or regulators in a majority of cases divided along those lines. That number included Gorsuch's only decision for the term: a 9-0 ruling in Henson v. Santander Consumer USA to somewhat narrow the federal Fair Debt Collection Practices Act. In criminal law cases, defendants or prison inmates won 11 decisions, the government 10. But the federal government won an important 8-0 victory in a closely watched case, Salman v. United States, that somewhat broadened insider-trading law.
      Along with the two cases restored to the calendar for reargument, the court is also carrying over three cases granted early enough for arguments in the current term but postponed — presumably because of fears of an inconclusive 4-4 split. Along with the travel ban case and five more cases granted on Tuesday [June 27], the court now has 28 cases teed up for arguments when the new term begins on Oct. 2, the traditional first Monday in October. That number includes two cases added on Monday: Masterpiece Cakeshop v. Colorado Civil Rights Commission, a Colorado bakery's effort to set aside a state civil rights sanction for refusing to serve a same-sex couple's wedding; and Digital Realty Trust, Inc. v. Somers, a test of the whistleblower provision in the Dodd-Frank financial industry reform law.

Sunday, June 25, 2017

High Court's Free Pass for Constitutional Wrongs

      Justice delayed is justice denied, according to the familiar legal maxim. But worse is for justice still to be denied even after the law's protracted delay. That was the message the Supreme Court gave last week [June 19] to the hundreds of innocent Arab and Muslim immigrants rounded up more than 15 years ago in a post-9/11 frenzy and held for months without charge in prison conditions usually reserved only for the worst of the worst.
      For 15 years, some of these "persons of interest," none of them ever found to have terrorism connections, have fought in federal court to hold the ranking officials responsible for these policies accountable under the Constitution. But the court that proudly promises "equal justice under law" decided instead to give a free pass to former Attorney General John Ashcroft, former FBI director Robert Mueller, and former Immigration and Naturalization Service Commissioner James Ziglar.
      The plaintiffs in this still unfinished litigation, represented since 2002 by lawyers from the Center for Constitutional Rights in New York City, asked for money damages from the three federal officials and the warden and associate warden of the federal prison where they were held. As authority, the lawyers relied on a decades-old Supreme Court precedent allowing damage suits against federal law enforcement agents for violations of constitutional rights.
      In blocking the suit against Ashcroft, Mueller, and Ziglar, a bare 4-2 majority of the shorthanded court has given federal officials a national-security get-out-of-litigation-free card. When the nation's security is at stake, Justice Anthony M. Kennedy wrote for the court in Ziglar v. Abbasi, federal officials cannot be second-guessing their decisions based on fears of being held financially responsible for violating individuals' constitutional rights. The ruling leaves prison warden Dennis Hasty's potential liability to be reconsidered on remand.
      In dissent, Justice Stephen G. Breyer protested that legal remedies against federal officials may be especially needed when they claim to be acting in times of emergency in the interest of national security. "[T]here may well be a particular need for Bivens remedies," Breyer wrote, referencing the court's 1971 decision, "when security-related Government actions are at issue." Justice Ruth Bader Ginsburg joined Breyer's dissent, but liberal justices Sonia Sotomayor and Elena Kagan had to recuse themselves because of prior involvement with the case respectively as judge on the Second Circuit and U.S. solicitor general.
      The seminal decision in Bivens v. Six Unknown Federal Narcotics Agents (1971) filled a gaping hole in U.S. law. Back at the time of the Reconstruction, Congress passed a law providing that state or local officials could be held liable for violating an individual's constitutional or legal rights "under color of [law]." Written against the backdrop of the defiance of federal officials by southern states, the Civil Rights Act of 1871 included no provision for comparable suits against federal officials for violating individual rights.
      In Bivens, the Supreme Court's 6-3 majority ruled that federal cops, just like state or local cops, could be held liable in federal court for violating an individual's constitutional rights — specifically in the case, for a warrantless search of James Biven's home. "That damages may be obtained for injuries consequent upon a violation of the Fourth Amendment by federal officials should hardly seem a surprising proposition," Justice William J. Brennan Jr. wrote for the majority.
      Whether surprising or not, Bivens is now in jurisprudential disfavor, as Kennedy explained in the new decision. The court has followed the Bivens' "implied damages remedy" approach in only two subsequent cases, Kennedy noted, and refused in several others. The court in
Davis v. Passman (1979) allowed a Fifth Amendment equal-protection suit against a sitting congressman by the female administrative assistant he fired after deciding he had to have a man in the post. A year later, the court in Carlson v. Green (1980) allowed the mother of a deceased federal prisoner to sue federal prison officials under the Eighth Amendment's Cruel and Unusual Punishments Clause for leaving her son's asthma untreated with tragically fatal results.      The plaintiffs' allegations in what was originally styled as Turkmen v. Ashcroft invoked all three of the Bill of Rights amendments cited in the Bivens trio of cases. For starters, they claimed unreasonable seizures in violation of the Fourth Amendment. They also claimed that they were subjected to severe conditions in prison — sleep deprivation, close confinement, and so on —  because of their religion or national origin in violation of the Fifth Amendment's equal protection requirement. The prison conditions, including unwarranted strip searches and verbal and physical abuse, were alleged to be Eighth Amendment violations.
      All of those well-pleaded allegations left Kennedy and his conservative colleagues, Chief Justice John G. Roberts Jr. and associate justices Clarence Thomas and Samuel A. Alito Jr., unmoved. "National-security policy is the prerogative of the Congress and President," Kennedy wrote, not he added for the courts. Breyer countered by pointing to the court's historically wrong decision in Korematsu v. United States (1944) to uphold the wartime internment of thousands of Japanese Americans.
      Four decades later, Congress apologized and provided $20,000 apiece in compensation to the wrongly interned Japanese Americans. For the victims of the post-9/11 dragnet, the Supreme Court offers nothing but Kennedy's caveat that the opinion should not be read to condone the "tragic" treatment that they received. Breyer's apt retort: the court's holding, he wrote, may "diminish[ ]  the compensatory remedy constitutional tort law now offers to harmed individuals."

Sunday, June 18, 2017

In First Opinion, Gorsuch 'Too Cute by Half'?

      The Supreme Court's rookie justice Neil Gorsuch has written his first opinion since taking the bench and the reviews are mostly good. "A superb opinion," gushed legal writing expert Ross Guberman hours after Gorsuch handed down his opinion in a little noticed consumer protection case, Henson v. Santander Consumer USA [June 12]. But hold the applause. On close examination, the opinion is structurally flawed, legally simplistic, and unfortunate on policy grounds.
      News coverage emphasized the new justice's use of alliteration to open a close grammatical dissection of one sentence in a 40-year-old federal law. The federal Fair Debt Collection Practices Act was aimed, Gorsuch tells the reader in his opening paragraph, at such "wayward collection practices" as "disruptive dinnertime calls" and "downright deceit."
      Guberman, who formerly taught legal writing at Yale Law School and now provides paid writing instruction to law firms, courts, and others, gave Gorsuch the newly created 2017 Judicial Alliteration Award for this and a second alliterative phrasing later in the opinion. Steven Mazie, the American Supreme Court correspondent for the British newsmagazine The Economist, mimicked Gorsuch with a tweet. "Gorsuch goes gaga for alliteration in opening line of 1st #SCOTUS op," Mazie tweeted.,
      The National Law Journal's Tony Mauro interpreted Mazie's tweet in his write-up of Gorsuch's opinion as "warm praise." Not so, Mazie now says. "Too cute by half," he told me. Guberman had noted Gorsuch's "breezy" and "jocular" style when the nomination was pending in the Senate. But some detractors in Gorsuch's home state of Colorado are said to have viewed his stylistic flourishes with something like mild disapproval.
      Apart from that issue, Gorsuch departed more significantly in his debut opinion from the established format for Supreme Court majority opinions. Invariably in recent memory, majority opinions open with a short overview of the case followed by Roman numeral-marked sections. Gorsuch's opinion, quite short at barely 10 pages in length, has no such guideposts.
      Michael Gerhardt, an experienced court watcher as law professor at the University of North Carolina, says the use of numbered sections helps both the justices and the legal community. Without that structure, Gerhardt explains, "People would have to work a little harder to follow the reasoning and maybe count the votes." The structure also "makes it easier for justices to specify which sections they join or don't  join," he adds.
      Gorsuch's departure from the customary organization of Supreme Court decisions went unremarked on until a tweet by this writer last week. But a review of the initial majority opinions by Gorsuch's eight colleagues shows that all of them adopted the numbered-section format in their maiden opinions­ — even in decisions that were short and unanimous, just like Gorsuch's debut. (Credit Adam Feldman of Empirical SCOTUS, here, with listing and linking those opinions.)
      Among the current nine, Chief Justice John G. Roberts Jr. and the junior justice Elena Kagan appear to be competing for the title of "best writer" on the Court. In their initial opinions, however, Roberts and Kagan both played it straight: nothing at all breezy apart from Roberts's citation in Martin v. Franklin Capital Corp. (2005) of "no less an authority" than Chief Justice John Marshall. A quick reading of the initial opinions by the six others also finds nothing comparable to Gorsuch's maiden effort to add some writing flair in aid of accessibility.
      Gorsuch's opinion also confirms to some extent the confirmation-fight accusations from Democrats and progressive groups that he favors business interests over consumers or workers. The plaintiffs in the case had accused Santander of engaging in the same kinds of "wayward collection practices" that Congress had in mind when it passed the debt collector law in 1977..
      The specifics of their complaints are missing from Gorsuch's opinion. Instead, he examined in grammar-lesson style the question of whether Santander, which bought the plaintiffs' defaulted car loans from CitiBank's auto financing arm, met the statutory definition of "debt collector." The law's definition: anyone who "regularly collects or attempts to collect . . . debts owed or due . . . another." Santander, Gorsuch reasoned, was collecting debts for itself, not for "another."
      Among eight federal courts of appeals to consider the question, five had ruled that a debt purchaser such as Santander was indeed a "debt collector." In adopting the narrower reading of the law, Gorsuch followed the approach of his dissent in the infamous Frozen Truck Driver case. In that case, he narrowly read a federal trucker safety provision as inapplicable to the discharged driver's decision to leave his inoperable rig on the roadside and drive in subzero temperatures to a heated service station.
      As in that earlier case, Gorsuch turned a close question of statutory construction into a civics lesson, this time with eight other justices concurring. The advent of the debt purchasing industry was a changed circumstance since 1977, Gorsuch acknowledged. But he refused to consider whether Congress would have intended to include them as debt collectors under the law. "It is never our job to rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done had it faced a question that . . . it never faced," he wrote.
      For conservatives, this kind of obtuseness counts as respect for the Constitution's separation of powers. But others may rightly ask whether the more faithful reading of arguably ambiguous statutory text would seek to apply the evident congressional intent that the law itself reflects.

Saturday, June 10, 2017

Trump's Offenses Far Worse Than 'Obstruction'

      President Trump is unlikely to be indicted and even less likely to be impeached for obstruction of justice for hoping that FBI director James Comey could go easy on Trump's friend and good guy, the fired national security adviser Lt. Gen. Michael Flynn. To be sure, Comey's account of the Feb. 14 Oval Office conversation with Trump, combined with the conspiratorial trappings of the talk and Trump's later firing of Comey, make out an indictable case that Trump "corruptly" sought to impede a pending federal "proceeding."
      Parsing Trump's words that carefully, however, is off-point by a country mile, somewhat akin to checking Al Capone's tax returns to see whether the bootlegger-mobster had run afoul of federal law. Trump's "high crimes and misdemeanors" are far worse than anything spelled out in 18 U.S.C. §1505, according to panelists at the American Constitutional Society's annual convention in Washington on Friday [June 9].
      Trump's actions in office and before are not merely "unconstitutional," according to Duke law professor Neil Siegel, but worse: "anti-constitutional." Siegel and fellow panelists in the progressive group's featured program listed the many ways in which Trump as candidate and now as president has stomped on and ground into the dirt unwritten constitutional norms that are essential to U.S. democracy. "We have a president who doesn't believe in democracy," Stanford law professor Pamela Karlan remarked.
      Karlan started her bill of particulars with Trump's threat during the campaign to jail his opponent, Hillary Clinton, if elected. As a second pre-election offense, Karlan recalled Trump's infamous reply that he would accept the results of the election only if he won. As post-election offenses, Karlan listed Trump's repeated unsubstantiated claims actually to have won the popular vote because of more than 3 million votes illegally cast for his opponent. And then, in pursuit of the nonexistent evidence, the president created a commission stacked with voting rights opponents aimed at making it harder, not easier, to cast ballots in the ultimate hallmark of a working democracy.
      Worst of all of his offenses, according to Slate's legal affairs columnist Dahlia Lithwick, is the Trumpian ontology of alternative facts. "What has been so fundamentally dismantled is the norm of truth," Lithwick remarked. In this view, Trump's assault on the media and his assault on the courts are part of a common strategy of seeking to delegitimize independent institutions capable of challenging Trumpian alternative facts, like the size of the Inauguration Day crowd or the content and purpose of the Muslim travel ban.
      None of these offenses will be found in title 18 of the U.S. Code, but the Framers appear to have been thinking in broad rather than legalistic terms in providing for impeachment of federal officials, including the president. In Federalist Nos. 65 and 66, Jay and Hamilton refer to "corruption" and "treachery" as grounds for impeachment, all-encompassing terms that might equally be rendered as "malfeasance" in office. "If you have enough of that," Seigel said of Trump's norm-breaking conduct, "maybe it's grounds for impeachment."
      The definition of an impeachable offense depends not on an academic debate about the Framers' intentions but on the political will of the House of Representatives. With a Republican majority dependent on the good will of the Republican base, the current House is unlikely to consider impeachment — not unless Trump's Mendoza-line approval ratings seriously jeopardize the members' own election chances.
      With impeachment off the table for now, indictment has a natural appeal to the #NotMyPresident crowd, but it is likely no more than a pipe dream. For starters, many legal scholars and experts believe that impeachment, not criminal prosecution, is the sole remedy against presidential misconduct. Oddly, the argument depends on an unwritten constitutional norm. ''The Framers implicitly immunized a sitting president from ordinary criminal prosecution,'' the Yale law professor Akhil Reed Amar remarked recently to the New York Times's Adam Liptak.
      Harvard's Alan Dershowitz has been making a separate argument specifically against an obstruction charge. As president, Trump has the power to direct the executive branch, Dershowitz argues, including the power to call off a law enforcement investigation or to fire a noncompliant FBI director. By analogy, Dershowitz cites the president's pardon power, exercisable at his sole discretion. Yet Dershowitz's argument proves too much: surely a pardon-for-cash scheme would be either indictable or impeachable or both.
      In the most recent full rehearsal of the arguments, a rising legal academic has given his thumbs-up to a possible indictment in a post on the Trump-watching blog Take Care. Writing in advance of Comey's testimony to the Senate Intelligence Committee, Andrew Manuel Crespo, an assistant professor at Harvard Law School, found no bar to charging Trump with obstruction of justice. If special counsel Robert Mueller were to seek an indictment, Crespo wrote, "he would be acting well within the law, the norms of the profession, and the reasonable bounds of the discretion with which he has been entrusted."
      Perhaps, but a prosecutor might want a stronger case before testing those bounds. For now, the rule of law that Trump so threatens may depend not on Congress or the courts, but on "we the people" ourselves. "A republic if you can keep it," Benjamin Franklin cautioned after helping write the Constitution in the fateful summer of 1787.  "We've lost our way," ACS panelist Siegel remarked, "and we need to find our way back." The path is by no means clear.

Saturday, June 3, 2017

In Bias Cases, Gorsuch Subpar for the Course

      Senate Democrats and their progressive advocacy group allies tried but failed to block Neil Gorsuch's confirmation as Supreme Court justices by accusing him of being insensitive to workers' and consumers' rights. They used as exhibit number one the case of the frozen trucker fired for leaving his rig behind rather than wait for emergency help in subzero weather. They also faulted several of Gorsuch's decisions or dissents that they said reflected insensitivity to racial or other forms of discrimination.
      Now, two law professors well versed in employment law cases are showing that Gorsuch's record, as depicted by his opponents, is just about par for the course. In their new book Unequal: How America's Courts Undermine Discrimination Laws, authors Sandra F. Sperino and Suja A. Thomas document the ways that federal judges have dashed the hopes embodied in federal civil rights laws for equal opportunity in U.S. workplaces nationwide.
      Starting from laws that have many built-in advantages for employers, judges have made it that much harder for workers complaining of discrimination by a set of procedural hurdles and substantive rulings narrowing the definition of discrimination. "Courts have limited the scope of discrimination law by refusing to call lots of conduct discrimination," Sperino and Thomas write.
      Gorsuch's record, as depicted by the progressive Alliance for Justice, fits this description like a glove. From Gorsuch's 10 years on the Tenth U.S. Circuit Court of Appeals, the group pulled half a dozen in which Gorsuch voted usually in the majority and once in dissent against job discrimination claims under Title VII of the Civil Rights Act.
      In separate sex discrimination cases, for example, Gorsuch voted once in the majority and once in dissent to keep the plaintiff's claims from juries. In two others, Gorsuch voted against giving plaintiffs the benefit of subsequent favorable Supreme Court precedents with the majority. Three of the cases included retaliatory discharge claims: complaints that the Supreme Court has said are important to enforcing anti-discrimination laws but that Gorsuch dismissed in each of the cases.
      The record "demonstrates a repeated pattern of siding with corporations over individuals trying to assert their rights under anti-discrimination laws," the Alliance for Justice report stated. "Judge Gorsuch routinely refuses to allow cases to go to a jury even when there are material disputes of fact about the circumstances surrounding an adverse employment action."
      Sperino, a law professor at the University of Cincinnati, and Suja, a law professor at the University of Illinois, have found a bookful of cases like these going back over decades. In side-by-side summaries, for example, they recount two sexual harassment claims that judges blocked from going to juries, each of them backed up with a dozen or so particulars. In one, an appellate court upheld the dismissal of the female employee's case because her male supervisor touched her only three times. In the other, the trial judge rejected a male employee's claim against his male supervisor even though the supervisor made two or three sexual remarks per day over a 10-day period.
      Race-related claims are also susceptible to dismissals even in the face of seemingly blatant evidence of racism. An appellate court threw out jury verdicts in favor of two African American employees with an opinion that dismissed supervisors' references to them as "boy" as "not probative of racial animus." Suja, it should be noted, is a strong defender of the jury system, as set out at length in her book published last year, The Missing American Jury.
      Sperino and Suja open the new book by noting that federal employment discrimination laws were not designed for plaintiffs as much as for employers. To start, Title VII requires a plaintiff to go first to the Equal Employment Opportunity Commission (EEOC) rather than straight to court. In addition, the law sets a very short 300-day statute of limitations for bringing a complaint — in contrast to the two-year deadline common for other personal injury suits. And the law sets limits on damages, unique to employment discrimination cases.
      A cobweb of court-created doctrines tilts the playing field further in employers' favors. Courts allow employers to explain racist or sexist comments as "stray remarks." A supervisor who hires an employee may be absolved of a later accusation of discrimination by the "same-actor inference." Some judges even reject discrimination claims if the employer can show an "honest belief" that the complained-of adverse action was not infected with prejudice.
      Sperino and Suja do not mention Gorsuch in their book nor do they name names of any of the judges they fault for undermining discrimination laws. They do note, however, that the federal judiciary is far less diverse than juries or the U.S. population at large. They cite a study that found that judges grant 70 percent of summary judgment motions filed by employers. Another found that plaintiffs' verdicts in discrimination cases are more likely to be reversed on appeal than verdicts in other kinds of civil cases.
      As Sperino and Suja tell the story, the Supreme Court has been less unfriendly to discrimination claims than the lower courts. In that case, Gorsuch's vote may not matter that much. Indeed, they close with a laundry list of semi-technical changes that Congress could enact to ensure courts give discrimination claims a full and fair hearing. In Trumpland, however, workers with discrimination claims are quite likely to remain forgotten.

Monday, May 29, 2017

At White House, Urgent Calls to Lawyer Up

      Trump was home alone, in the residence, tired of cable news and surfing around for one of those old movies that made America great. How the West Was Won: perfect. But then came one of those lawyer commercials. "If you have a phone, you have a lawyer."
      Then, it hit him: I have a phone! I need a lawyer! Sure, Trump said to himself, Don McGahn is White House counsel. He's a good man, but he keeps telling me what I should do instead of letting me do what I want to do. I'm calling Marc Kasowitz: he's been with me all these years, through the divorce, the bankruptcies, the Trump University fake lawsuit, on and on. Him, I can trust. Just like my friend Mike Flynn.
      Thus Kasowitz was brought in to head an outside legal team to help with the Russia investigations that are swirling ever more ominously around the White House. Not just the White House: now it's Jared too. Good son-in-law. Done nothing wrong. Fake news. But McGahn says he can't help. Bad precedent. White House counsel can't give away 'get out of jail free' cards to everybody.
      The Washington Post reports that Trump is looking at others to beef up the team: maybe Ted Olson, maybe Paul Clement. Surely, they understand that everyone's entitled to legal representation in this country. But already on the blogosphere some nigglers are suggesting that Olson and Clement have nothing to gain with this brief — and a lot to lose, like their reputations.
      Lawyering, it turns out, has been one of the Achilles' heels of this administration, now just past the 125-day mark. Yes, the Justice Department lawyers put up a good fight, but federal appeals courts appeared to have blocked the president's signature policy achievement of his first full week in office: Executive Order Protecting The Nation from Foreign Terrorist Entry Into The United States.
      The courts blocked the first version. Muslim ban, they said. "We all know what that means," Trump said as he signed the order. Apparently, yes, the so-called judges did.
      After the courts blocked the first version, Team Trump worked with the lawyers on a revised version. Significant tweaks. The new version exempted green-card holders —  lawful permanent residents, in legal speak. It also gave immigration officers discretion to waive the ban. And the lawyers added six paragraphs of "findings" to explain why these six countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen. Again, the nigglers. Why not Saudi Arabia, they asked, since that's where the 9/11 hijackers came from?
      Despite all that lawyering, the courts still aren't buying it. The old saying is right: You can put a dress on a pig, but it's still a pig. The Fourth U.S. Circuit Court of Appeals, sitting en banc in Richmond, Va., came out with a 10-3 decision blocking Executive Order 2.0. More than 200 pages of opinions less than three weeks after oral arguments. The majority stopped just short of calling the president a liar.
      Trump takes note, of course, that the 10 judges who ruled against him are all Democratic appointees and the three on his side are Republicans. He thinks back to something Gorsuch said. "There are no Republican judges; there are no Democratic judges." Well, Trump thinks, he was half right. There are no Democratic judges for the next four years: that's for damn sure.
      Sessions is quick out of the box with one of those boilerplate responses: disagree strongly, you betcha. Will appeal, of course. At the Supreme Court, Gorsuch could be the fifth vote that the White House needs to reverse the ruling.
      Justice Neil Gorsuch is exhibit number one for Trump's accomplishments at the 125-day mark. Oddly, however, Team Trump had very little to do with it. Supreme Court vetting was turned over to the Federalist Society back in the campaign. Twenty candidates on the list: all of them Republican judges, naturally. All good candidates, but Gorsuch was head and shoulders above any of them. Look at those credentials: better even than Garland's, he muses.
      Once Gorsuch was nominated, it was McConnell's job to get him through. And he did: the Democrats came close to blocking him, but close doesn't count except in horseshoes. The Democrats decided to dare the Republicans to change the Senate rules to get him confirmed. Republicans took up the dare. Republicans won't need 60 votes next time either.
      Lawyering, of course, was never Trump's forte. Dealmaking was: The Art of the Deal was a best-seller: it was yuge. As for dealmaking, however, nothing yet to crow about. "Repeal and replace Obamacare" is stuck in the Senate; Ryan got that through the House, but McConnell says he doesn't know where he gets 50 votes, much less 60. As for the tax reform bill: not yet written. Why can't they just pass my talking points, Trump asks himself. This place really is a swamp.
      And the wall? Now Trump frets that he's being told some of it will be on private property. That means eminent domain lawsuits. They think that scares me, he says to himself. Real estate litigation is right up my alley, he assures himself. Just hire some more lawyers.

Saturday, May 20, 2017

As White House Counsel, McGahn Seen Failing in Role

      Rod Rosenstein took a major hit to his previously unblemished reputation by lending support as deputy attorney general to President Trump's decision to fire FBI director James Comey. Now, a lawyer who works right outside Trump's office is similarly taking hits to his admittedly somewhat checkered reputation. Don McGahn, Trump's pick to be his White House counsel, is now being blamed for what a wide range of legal observers are calling the ethical and legal disarray in the Trump presidency.
      McGahn now serves in the same behind-the-scenes role that John Dean occupied in the Nixon White House and used to warn Nixon, in vain, about the "cancer" on his presidency. Like Dean before him, McGahn has a client with a tin ear as to ethics and conflicts issues. Even so, legal observers say McGahn has to bear responsibility for such seemingly avoidable missteps as the delayed firing of Michael Flynn as national security adviser and the clumsy explanations for Comey's dismissal.
      "So much of what’s gone wrong in the Trump administration . . . might have been prevented by some good lawyering up front," reporter Jenna Greene wrote in a story for the on-line legal publication Litigation Daily with the provocative headline "The Case for Giving White House Counsel Don McGahn the Boot" [May 18]. "The president, no doubt, is an extraordinarily difficult client," Greene added, "but McGahn doesn’t seem willing or able to rein him in."
      McGahn came to the post as an expert on campaign finance and election law based in part on a combative five years as a Republican appointee to the Federal Election Commission (FEC). Back in private practice with the well-connected D.C. law firm Jones Day, McGahn gained entree into Trump's inner circle by becoming one of the first high-profile Washington lawyers to join the campaign. McGahn was credited with playing an important role in blocking efforts to block Trump from the ballot in New Hampshire's first-in-the-nation presidential primary early in 2016.
      As White House counsel, McGahn fits a Trumpian model of high-level appointments. For secretary of education, Trump picked Betsy DeVos, a sharp critic of public education as a leader of the school-choice movement. To head the Environmental Protection Agency, he named Scott Pruitt, an opponent of EPA policies as a former Oklahoma attorney general.
      At the FEC, McGahn had a reputation of being rude and abrasive to staff and even to fellow commissioners and worked single-mindedly to weaken or dismantle campaign finance restrictions. Ann Ravel, a Democratic appointee to the FEC after McGahn's term had ended, commented to Greene that she found McGahn's appointment as White House counsel "shocking." "His record indicates that he’s not particularly concerned about conflicts or ethics issues," Ravel told the reporter.
      As early as mid-February, Jack Goldsmith, who headed the Justice Department's Office of Legal Counsel during part of President George W. Bush's second term, was blaming McGahn for some of the White House problems. “The multiple ethics problems swirling around the White House are squarely McGahn’s responsibility,” Goldsmith, now a professor at Harvard Law School, wrote in a post for the middle-of-the-road legal blog Lawfare.
      Within the past week, the New York Times strengthened the critique by disclosing that McGahn was informed on Jan. 4 that Flynn, who was already functioning as Trump's national security adviser, was under an FBI investigation for his contacts with the Russians during the campaign and his work as a paid lobbyist for the Turkish government. Matthew Miller, a Justice Department spokesman in the Obama administration, responded critically to the information in an appearance on CNN. "If you were under an FBI investigation," he said of Obama administration personnel policies, "you couldn't get hired as a staff assistant, much less national security adviser."
      Once Flynn's role emerged into headlines, the White House used McGahn, just as it was to use Rosenstein later, to try to defend its actions--in this case, the failure to fire Flynn immediately after learning that Flynn had lied to Vice President Mike Pence about contacts with Russians. "The White House Counsel reviewed and determined that there is not a legal issue, but rather a trust issue," press secretary Sean Spicer said at a briefing.
      Accepting that account, Goldsmith wrote in his blog post that McGahn had failed in his role. "The legality of Flynn’s actions was not McGahn’s call to make," Goldsmith wrote, "and if McGahn were properly carrying out his responsibilities to ensure lawful action in the White House and to minimize law-related political damage to the President, he would have acted differently."
      Goldsmith's critique was noted in an unflattering profile by reporter Nancy Cook in Politico in February. “McGahn will embolden Trump,” an unnamed former FEC official told Cook. “He is not going to be a truth teller. He’s going to be an enabler.”
      Rosenstein, the former federal prosecutor and Justice Department official, salvaged some of his reputation last week by appointing former FBI director Robert Mueller as special counsel to investigate "Russiagate." McGahn's reputation is likely to suffer more hits as his role draws more attention. He can protect his reputation, if at all, only by showing more moral courage than he has to date in telling a wayward president to try to straighten up.

Saturday, May 13, 2017

Trump's Arrogance, Deceit Fuel Constitutional Crisis

      President Trump's decision to fire FBI director James Comey was a calculated act of constitutional arrogance and political deceit: lawful on the surface but deeply damaging to the rule of law and possibly criminal or impeachable as an obstruction of justice.
      Trump's extraordinary comments to NBC's Lester Holt [May 11] make clear that he fired Comey in an attempt to truncate the FBI's investigation of possible collusion between his presidential campaign and Russian agents interfering with the U.S. election. Seemingly oblivious to the damning implications. Trump acknowledged to Holt that he had planned to fire Comey without regard to the pretext that he had arranged by ordering up a recommendation from the nation's two highest law enforcement officials at the Justice Department.
      Attorney General Jeff Sessions and deputy attorney general Rod Rosenstein are two of the collateral damage victims of Trump's deceit. Sessions' letter recommending Comey's dismissal violated his pledge during his Senate confirmation process to recuse himself from all investigations of the Trump campaign. Any self-respecting senator on either side of the aisle should rise in indignation and demand at the least an investigation of Sessions' action by the department's inspector general.
      Sessions had been damaged goods already given his false testimony to the Senate Judiciary Committee that he had never met with Russian officials as a Trump surrogate during the presidential campaign. Rosenstein, on the other hand, had an unblemished reputation as a U.S. attorney in Maryland that gained him Senate confirmation on a 94-6 vote for the Justice Department's second-ranking position.
      Presciently, however, the six Democratic senators who voted against Rosenstein's confirmation were troubled by his balking at a promise to appoint a special prosecutor for the Russia probe. Now, he has allowed himself to be co-opted into the president's plot to thwart the investigation.
      Rosenstein affixed his signature—and his reputation—to a slap-dash letter listing Comey's missteps that exaggerated the damage to the FBI's reputation and that ignored the inspector general's pending investigation of Comey's actions. As the always thoughtful Benjamin Wittes wrote on Lawfare, "Rosenstein was tasked to provide a pretext, and he did just that." Wittes's recommendation sums up the difficult choice Rosenstein now faces: appoint a special prosecutor and then resign.
      Trump also threw press secretary Sean Spicer and deputy press secretary Sarah Huckabee Sanders under the bus by letting them spin the press -- and the public -- on the basis of palpably false talking points. CNN ran a devastating compilation of sound-bites from Vice President Mike Pence, Spicer, and Sanders, all using the identically phrased description that Trump "took the recommendation of the deputy attorney general" in firing Comey.
      Deviously, Trump soiled Comey's reputation further by claiming in his own letter that the FBI director had personally assured him not once but three times that he himself was not under investigation  As Trump depicted the most specific episode, Comey asked for a dinner meeting because he wanted to keep his job and gave the assurance when the president asked.
      The account strains credulity. It is far more plausible, as those close to Comey recounted, that the president asked for the meeting and Comey felt obliged to accept. In any event, the meeting and the subsequent telephone conversations breached Justice Department protocols regarding pending investigations--and the claimed assurances, if given, all the more.
      In the wake of all these disclosures, legal experts mulled whether the president had committed an obstruction of justice, as broadly defined in federal law. To begin, it must be conceded that despite the fixed 10-year term for the FBI director, the president had the authority to fire Comey with or without cause. The post-Watergate tenure provision was designed more to limit the FBI director's power than the president's.
      On the surface, however, Trump's actions seem to fit the wording in 18 U.S.C. §1512, which makes it a crime if someone corruptly "obstructs, influences or impedes any official proceeding." The practical obstacles to such a charge would be daunting, according to a survey by Charlie Savage, the New York Times's Pulitzer Prize-winning correspondent who has been dogging presidential abuses since George W. Bush's years in the White House. The Justice Department is unlikely to bring the charge, Savage noted, and proof of motive would be very hard to prove in any event.
      With criminal prosecution improbable, critics and experts naturally turned to impeachment. Trump's description of the Russia probe as "a made-up thing" has echoes of the Nixonian description of Watergate as a "third-rate burglary." Trump's conduct seems to fit the wording in the first article of impeachment against Nixon that he has "prevented, obstructed, and impeded the administration of justice." Harvard's distinguished constitutional law expert Laurence Tribe was perhaps the most prominent expert seen to be tweeting that it was not too early to consider impeachment as the constitutional remedy for Trump's abuses in office.
      Impeachment is beyond the realm of possibility, however, unless House Speaker Paul Ryan and Senate majority leader Mitch McConnell decide to put country over party and stand up against the president. Trump remains popular with his minority political base even as a majority of Americans strongly disapprove his performance, according to the most recent poll. The path out of what amounts to a genuine constitutional crisis—a president who respects neither the law nor the truth—is nowhere in sight.

Sunday, May 7, 2017

Banks May Pay for Ravaging Minority Neighborhoods

      The nation's big banks got by mostly scot-free for the harm they did to the nation's economy and in particular the housing market leading up to the Great Recession of 2007-08. But the Supreme Court cleared the way last week [May 1] for the nation's cities to hold the banks at least somewhat accountable for the particular harm they did to minority homebuyers and the boarded-up minority neighborhoods left behind after waves of foreclosures.
      The Supreme Court's decision in Bank of America v. Miami clears the way for the city of Miami to use the Fair Housing Act to try to recover damages from BofA and Wells Fargo for financial losses the city blames on the banks' policies of targeting predatory mortgage loans to African American and Latino customers. The city's complaint, yet to be tested at trial, includes statistics and whistle-blower affidavits substantiating the banks' practices of steering minority homebuyers to mortgages with less favorable terms than those offered to white customers.
      The banks made money on the loans and then ended up with the houses by foreclosing on the properties when the would-be homeowners, predictably, defaulted on the lender-friendly mortgages. Miami was one of several big cities that claimed that boarded-up minority neighborhoods cost them property tax revenue and added to the cost of providing law enforcement and other municipal services. Two cities have won seven-figure settlements in such cases, but Miami's prospects in an eventual trial are uncertain.
      The racial discrimination was both more subtle and more pervasive than was practiced in the bad old days. Back before the Fair Housing Act was enacted in 1968 and still afterward, real estate agents helped create and maintain residential segregation in cities and suburbs alike simply by steering black clients away from white neighborhoods.
      The Fair Housing Act had been on the books for only a decade when the Supreme Court first confronted the question whether a city could use the law to sue real estate agents for financial losses attributable to residential segregation. The court answered in the affirmative in Gladstone, Realtors v. Village of Bellwood (1979) by broadly construing the statutory terms allowing any "aggrieved person" to sue for damages if "injured by a discriminatory housing practice."
      Bellwood, a tiny village in the Chicago suburbs, joined individual plaintiffs in suing two real estate firms that housing "testers" had shown to have been practicing racial steering. The court's 7-2 decision went so far as to allow suits by the individual testers even though they were gathering evidence and not actually looking for apartments. In its complaint, Bellwood claimed that the practices were lowering property values and robbing the village of racial balance and stability.
      Writing for the majority, Justice Lewis F. Powell Jr. accepted the village's standing to sue the two firms for damages. "A significant reduction in property values directly injures a municipality by diminishing its tax base, thus threatening its ability to bear the costs of local government and provide services," Powell wrote. "Other harms flowing from the realities of a racially segregated community are not unlikely," he added.
      In the new case, Justice Stephen G. Breyer led a 5-3 majority in relying on the Bellwood decision to uphold Miami's effort to sue the two banks. Miami's claimed injuries, he wrote, "arguably fall within the FHA's zone of interests, as we have previously interpreted that statute." Breyer's opinion was joined by Chief Justice John G. Roberts, who assigned the opinion to Breyer as the senior justice in the majority, and Breyer's three liberal colleagues: Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Justice Clarence Thomas, joined by Justices Anthony M. Kennedy and Samuel A. Alito Jr., dissented on the point.
      The justices were unanimous, however, in tightening somewhat the burden of proof that Miami will have to meet to prevail at trial. Breyer said that the Eleventh U.S. Circuit Court of Appeals had been too lax in allowing Miami to recover for any "foreseeable" losses. Instead, Breyer said, the city would have to show "some direct relation" between the banks' practices and the claimed losses. In his dissenting opinion, Thomas said that Miami's allegations were "extremely attenuated" and predicted that the city could not meet the "rigorous" standard laid out in Breyer's opinion.
      The banks both issued statements vowing to defend the suits and predicting eventual vindication. For his part, civil rights lawyer Robert Peck, who argued Miami's case at the Supreme Court, said he was confident that Miami could meet the causation standard. Peck will be arguing an appeal by the city of Los Angeles later this month seeking to reinstate a similar suit ordered dismissed by a district court judge.
      Erwin Chemerinsky, a leading liberal academic and dean of the University of California-Irvine School of Law, called the ruling "an important victory for civil rights." It is a measure of the court's retreat on racial justice that the justices reaffirmed a 7-2 decision only by a narrower 5-3 vote and only with an 8-0 burden of proof ruling casting some doubt on the city's eventual claims. But Amanda Kellar, general counsel for the International Municipal Lawyers Association, predicted cities would succeed in making banks pay. "There's plenty of evidence," Kellar said, "that discriminatory lending practices not only caused devastating losses to individuals but also had concrete effects on municipalities."