Sunday, December 31, 2017

A Lawless President Meets the Rule of Law

      President Trump's job approval rating stood at 43 percent in early March when his Supreme Court nominee, Judge Neil Gorsuch, congratulated him in a personal letter for getting off to "a good start." In fact, Trump's year in office has been rocky from the very start, with job approval ratings at historic lows for a new president, no significant victory in Congress until the deeply unpopular tax bill just signed into law, and a continuing succession of defeats in the courts.
      Gorsuch sent Trump his sycophantic note, dated March 2 but unearthed by reporters for the Washington Post only this month [Dec. 19], with the president already off to a poor start in federal courts. Two federal district court judges in separate cases had issued rulings weeks earlier in February to block as unconstitutional the president's much touted executive order aimed at barring travelers from six majority-Muslim countries from entering the United States.
      Those rulings came from veteran federal judges appointed by presidents of different parties: James Robart, named to the federal court in Seattle by President George W. Bush, and Leonie Brinkema, appointed to the federal court in Alexandria, Va., by President Bill Clinton. Federal appeals courts similarly blocked the ban, even after a revision.The Supreme Court gave the administration a partial victory with a 6-3 decision in Trump v. International Refugee Assistance Project that allowed the order to take effect, but somewhat narrowed; Gorsuch was among three dissenters in the June 26 decision who voted to uphold the order as written.
      Federal judges have been the unsung heroes of the resistance to Trump, not because of political disagreements but because of their commitment to the rule of law — in contrast to the often lawless president. As candidate and as president, Trump has shown himself to be largely ignorant of the legal process and deeply contemptuous of constitutional rights and legal rules.
      As candidate, Trump ostentatiously promised "a total and complete shutdown of Muslims entering the country." Federal judges in the later travel ban cases — Theodore Chuang in Maryland and Derrick Watson in Hawaii, both appointed by President Barack Obama — noted Trump's campaign statements in finding impermissible religious discrimination behind the eventual executive order. Trump criticized both decisions.
      During the campaign, Trump also demonstrated his own racial prejudice by imputing bias to the Mexican-American judge presiding over the civil lawsuit against his so-called Trump University. Judge Gonzalo Curiel was born in Indiana to Mexican immigrant parents, but Trump called the judge a "Mexican" and a "hater" who was biased against him because of his support for building a wall at the U.S.-Mexico border.
      As candidate and as president, Trump repeatedly promised to roll back federal regulations, especially those promulgated under environmental protection laws. But the administration has been stymied in several cases as federal courts have faulted Trump agencies for failing to comply with well established administrative procedures.
      In one example, the federal appeals court for the District of Columbia on July 3 blocked the Environmental Protection Agency (EPA) from suspending enforcement of a year-old rule regulating emissions from oil and gas wells in an effort to limit greenhouse gases into the atmosphere. The D.C. Circuit's 2-1 decision in Clean Air Council v. Pruitt, with Democratic appointees in the majority and a Republican appointee in dissent, held that the EPA had no inherent authority to suspend a rule, absent special circumstances, during proceedings to reconsider it.
      Three months later, a federal magistrate judge in San Francisco similarly blocked the Interior Department from delaying compliance with a regulation to prohibit the "flaring" by oil and gas companies to burn off waste methane. A New York Times story said the decision by Judge Elizabeth LaPorte marked the third time that the EPA or the Interior Department had been found to have acted illegally in seeking to roll back environmental regulations. Reporter Eric Lipton said the administration had also retreated in three previous instances when proposed rollbacks were challenged in court.
      Earlier, the administration had suffered a rebuff on one of its own policies: an executive order issued by Trump in his first weeks in office to cut off federal funds for so-called "sanctuary cities" that limit cooperation with immigration authorities in apprehending undocumented aliens. In an April 25 ruling, U.S. District Court Judge William Orrick in San Francisco called the total cutoff of funds "unconstitutionally coercive." Trump called the ruling "ridiculous," but Orrick broadened it on Nov. 21 into a permanent nationwide injunction against the policy.
      The string of judicial reversals continued with a sharp rebuke of Trump's peremptory ban on transgender individuals in the military. In an Oct. 30 ruling, U.S. District Court Judge Colleen Kollar-Kotelly blocked enforcement of Trump's Aug. 25 memorandum. The president issued the memorandum, the judge said, "without any of the formality or deliberative processes that generally accompany the development and announcement of major policy changes . . . ." The week before Christmas, the D.C. Circuit rejected the administration's plea to stay the lower court order.
      Trump has built his presidency on a continuing campaign against institutions that slow or block his autocratic impulses: the courts, the bureaucracy, the news media. Speaking as president, he has encouraged police to rough up suspects and threatened to challenge television networks' broadcast licenses. "His idea of the presidency," Corey Brettschneider, a political scientist at Brown University, remarked to The New York Times, "is, he was elected and he can do whatever he wants."
      The United States is a country of laws, not of men. One year into a Trump presidency, the rule of law has held, but Trump's unmanageable ego ensures that more challenges lie ahead.

Friday, December 22, 2017

On LGBT Rights, Trump's America Not So Great

      The movement to gain equal rights for LGBT Americans amounts to the third of the great twentieth-century civil rights movements in the United States after the earlier, still unfinished struggles for racial and gender justice. The gay rights movement, to use the less inclusive terminology of earlier decades, encountered resistance that, if anything, was and remains deeper-seated than the opposition to racial desegregation or equal rights for women.
      LGBT rights advocates made slow gains beginning in the 1980s with passage of some local or state laws to prohibit discrimination based on sexual orientation. Progress has come more quickly over the past two decades with, among other milestones, the two closely divided Supreme Court decisions invalidating state anti-sodomy laws and two years ago establishing marriage equality for gay or lesbian couples.
      Back in 2000, when the White House was no more than a gleam in Donald Trump's eye, the future president envisioned in his political manifesto "The America That We Deserve" an America that would be free of “racism, discrimination against women, or discrimination against people based on sexual orientation.” As presidential candidate in 2016, Trump sent mixed signals: he favored LGBT rights in occasional statements, but aligned himself with anti-LGBT groups by endorsing "traditional marriage" and opposing transgender bathroom rights.
      With Trump in the White House, no one expected him to put much if any effort behind expanding LGBT rights. Still, LGBT advocates hoped, somewhat plausibly, that he would not try to turn the tide against the recent gains.
      Instead, Trump has marked his first year in office with a number of unforced initiatives to reverse course on LGBT rights. Worse, Trump' record-setting number of appointments to the federal bench includes many nominees — most prominently, Supreme Court Justice Neil Gorsuch — with records of opposing LGBT rights or embracing legal ideologies hostile to or skeptical of LGBT equality.
      To begin, two of Trump's Cabinet members, Education Secretary Betsy DeVos and Attorney General Jeff Sessions, joined in rescinding the Obama administration guidance that public schools allow transgender pupils to use bathrooms and locker room facilities based on their gender identity. The move forced the justices to shelve a case set for argument in March that could have established nationwide law on the issue.
      In a later about-face, the Justice Department shifted the government's position in the closely watched case testing a Colorado baker's right to refuse to make a wedding cake for a gay couple. The government's amicus brief filed in September stopped short of endorsing an open-ended religious freedom exemption from anti-LGBT discrimination laws, but embraced the baker's tenuous First Amendment claim to avoid being forced into symbolically embracing a marriage contrary to his faith-based views.
      With the Court precariously divided on LGBT rights, the government's position could help the four anti-marriage equality conservatives, including Chief Justice John G. Roberts Jr., to pull the free-speech loving Justice Anthony M. Kennedy into a five-vote majority. A narrow ruling for the baker might be written off as only a minor setback, but the eventual impact would depend on its interpretation in lower courts by judges,
      Many judges, in state and federal courts, are relics of the old anti-LGBT views. Others, including most of Trump's judges, are doctrinaire adherents of narrow views that allow little if any room for protecting LGBT rights.
      Gorsuch is a prime example of Trump's anti-LGBT judges, as noted in an end-of-year compilation by Lambda Legal. As a federal appeals court judge on the Tenth Circuit, he joined in rejecting a constitutional claim by a transgender inmate in Oklahoma to be allowed to dress in feminine clothing as she requested. More broadly, Gorsuch joined in an Affordable Care Act case in embracing the kind of religious exemption that anti-LGBT groups seek from LGBT rights measures. And, in his writing, Gorsuch has sharply criticized the kind of civil rights impact litigation that helped establish marriage equality as the law of the land.
      Gorsuch won Senate confirmation by a narrow 54-45 vote: one of the closest margins ever for a justice. Other Trump judges were confirmed on even closer party-line votes, with Republicans in lock-step support and Democrats sometimes in unanimous opposition. Lambda Legal joined with other civil rights groups in highlighting anti-LGBT votes from some Trump nominees who had served on state courts. As examples, Don Willett, confirmed for the Fifth Circuit, had voted on the Texas Supreme Court against equal employee benefits for same-sex couples. Joan Larsen, confirmed for the Sixth Circuit, had voted on the Michigan Supreme Court against second-parent adoption rights for same-sex couples.
      Among others, Kentucky lawyer John Bush was criticized for "homophobic" language in blog posts written before his successful nomination to the Sixth Circuit. Nebraskan Steven Grasz won confirmation to the Eighth Circuit despite criticism for his close ties to the anti-LGBT Nebraska Family Alliance and his unqualified rating from the American Bar Association. Colorado's Alison Eid and Pennsylvania's Stephanos Bibas, confirmed for the Tenth and Third Circuit respectively, were cited for general views akin to Gorsuch's rights-confining originalism and skepticism of civil rights litigation.
      LGBT groups can claim victories in the recent withdrawals of three Trump nominees, including Jeff Mateer, the assistant Texas attorney general who notoriously described transgender individuals as "part of Satan's plan." Mateer's intemperate views proved too much even for the Senate's compliant Judiciary Committee chairman, Iowa's Charles Grassley, to swallow.
      Trump has sought out young nominees, some even in their 30s, in hopes of leaving a decades-long legacy on the federal bench. With lifetime appointments, Trump's judges can help slow or possibly even reverse the hard-won legal gains for LGBT Americans.
      Those gains give substance to the goal carved in marble above the entrance to the Supreme Court: "Equal Justice Under Law." If ever achieved, that would make America great — not again, but greater than ever before. Sadly, Trump's record on issues ranging from LGBT rights to economic policy suggests no role for equal rights in his backward march toward a not-at-all great America. 

Sunday, December 17, 2017

As Liar-in-Chief, Trump Leads Assault on Democracy

      Truth is said to be the first casualty in wartime. With Americans engaged with each other in the most contentious political and cultural wars since the Civil War, truth is now under siege in the United States as never before in an assault led with deliberate malevolence by the nation's liar-in-chief, Donald J. Trump.
      Those of us who came of age during the Vietnam War remember the exaggerated body counts of Viet Cong killed or captured that the Pentagon issued in briefings that reporters openly mocked as the Five O'clock Follies. The blatant unbelievability of the numbers put "credibility gap" into the political lexicon and left a lasting stain on President Lyndon B. Johnson's legacy.
      With Donald Trump as president, a new truth-denying term has been coined: Kellyanne Conway's "alternative facts." As Conway's phrasing suggests, Trump's assault on truth is more than exaggeration or spin, but a direct assault on the very concept of objective, verifiable truth. And two recent expos├ęs — one by a sociologist expert on liars and another by The New York Times — have documented that Trump lies in a uniquely reckless manner and at a rate unheard of in American political history.
      Trump's lies reflect more than a grievous character flaw or a relic of his earlier careers as real estate huckster and "reality show" star. His so-called "difficult relationship with the truth," as one Democratic lawmaker phrased it this week, represents instead a recognized technique of authoritarian control, according to political scientist Brian Klaas in his new book Despot's Apprentice.
      Klaas, a U.S. scholar now at London School of Economics who has studied authoritarianism up close in a dozen countries, reminds readers that truth-denial was the hallmark of Big Brother's totalitarianism in George Orwell's dystopian novel 1984. But Klaas has also seen the technique in practice in real life. He recalls that the Zambian dictator Frederick Chiluba responded to a failed military coup in 1997 by falsely depicting the leader as acting out of drunken foolishness rather than substantive disgruntlement with Chiluba's regime.
      In like vein, Klaas draws the historical parallel between Trump's monotonous attacks on "FAKE NEWS" — all caps in Trump's tweets — and Adolf Hitler's ominous attacks on Lugenpresse or "lying press" as he consolidated control. In a more recent parallel, Klaas notes that the Venezuelan democrat-turned-dictator Hugo Chavez denounced his critics as "enemies of the homeland" just as Trump now terms his news media critics as "enemies of the people."
      The so-called "failing" New York Times undertook to quantify Trump's lies in an exhaustive account published online this week [Dec. 14] and scheduled to appear in Sunday's print edition [Dec. 17]. Applying a somewhat strict standard — intentional misstatements of objectively disprovable falsehoods — the Times counted 103 lies from Trump since his inauguration ranging from his false claim to having opposed the Iraq war to the more recent incorrect description of the United States as "the highest taxed nation in the world." Applying the same standard of intentional falsehoods, the Times counted only 18 lies by President Obama during his eight years in the White House.
      Most of the Trump lies on the Times' list serve an evident political purpose, like his claim to have won the popular vote in 2016 except for the supposed 3 million to 5 million ballots casts illegally. Others seem too trivial to matter, such as his erroneous statement that the Times recorded Sen. Bob Corker's harsh critique of Trump without the Tennessee Republican's knowledge.
      A week before the Times' compilation, a social scientist put an academic gloss on Trump's lies in a Sunday opinion section piece in The Washington Post [Dec. 10] that bore the headline "I study liars. I've never seen one like President Trump." Bella DePaulo, a sociologist affiliated with the University of California-Santa Barbara, concluded that Trump's lies "are both more frequent and more malicious than ordinary people's."
      DePaulo adopted the looser standard used by the Post's "Fact-Checker" to count 1,628 false or misleading claims in the president's first 298 days in office. Nearly two-thirds of Trump's lies DePaulo characterized as self-serving, such as his description of Vietnamese lined up "in the thousands" to greet him on his trip to the Southeast Asian nation. In addition, DePaulo counted "an astonishing 50 percent" of Trump's lies as "hurtful or disparaging," often needlessly so, such as his recent description of respected intelligence community officials John Brennan, James Clapper, and James Comey as "political hacks."
      DePaulo concluded by pronouncing Trump guilty of "violating some of the most fundamental norms of human social interaction and human decency." The Times' writers David Leonhardt and Stuart A. Thompson note that Trump's political career began with the "birtherism" lie that Obama was born outside the United States and that his lies remain central to the Russiagate investigation. "No other president — of either party  — has behaved as Trump is behaving," the Times writers conclude.
      Klaas depicts Trump's lies as one of many practices that he has borrowed, apprentice-like, from other despots, such as narcissism, nepotism, cronyism, and personal enrichment. He concludes with cautious confidence that the United States' political and constitutional norms are strong enough to prevent full-scale authoritarianism in Washington. But "democratic decay" has already set in, Klaas warns, and democracy "needs to be saved — before it is too late."

Sunday, December 10, 2017

In Gay Wedding Cake Case, Equal Rights at Stake

      Every trial lawyer knows the key to success in the courtroom is a good story to engage the sympathy of jury, judge, or both. So the opposing parties in the gay wedding cake case at the Supreme Court rushed from the courtroom last Tuesday [Dec. 5] to waiting news cameras and microphones to try to sell their competing stories of victimhood to the American public.
      Charlie Craig and David Mullins, the gay couple turned away five years ago in their search for a cake for their pre-wedding reception, introduced themselves as "regular guys" with no agenda other than a desire to be treated equally, as Colorado law seemingly requires. Craig and Mullins had come to Jack Phillips' Masterpiece Cakeshop in the Denver suburb of Lakewood that summer day because they liked the cakes Phillips had displayed in the bakery's catalogue.
      At the other end of the sidewalk, Phillips was explaining that he had "respectfully" declined to make a cake for the couple once he learned that the cake was to celebrate a wedding that his Christian faith prohibited. Down at the other end, Mullins recalled that he and Craig were "stunned" by Phillips' refusal and still pained by "the memory of the humiliation, the mortification."
      Craig's mother had accompanied the couple to the bakery and attested to her son's shock that day. "I saw that my grown son was starting to shudder," Debbie Munn recalled. "We don't want another couple to go through"  that kind of treatment, Mullins said as he wrapped up the news scrum.
      Down the sidewalk however, Phillips was himself donning the cloak of victimhood. He and his family had suffered years of "harassment" after having been found to have violated the state's civil rights law, Phillips told the reporters and assembled spectators. He also took a substantial financial hit by dropping wedding cakes altogether to avoid further legal entanglements.
      Inside the courtroom, the Court's liberal and conservative blocs used their questions in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission to construct opposing stories aimed at framing the legal issue best for their opposing sides. Liberal justices Sonia Sotomayor and Elena Kagan warned that ruling in favor of Phillips' compelled-speech doctrine argument would open the door to pleas for similar civil rights exemptions for photographers, florists, chefs, make-up artists, and hair stylists with religious scruples to participating in same-sex weddings.
      Some of those scenarios might seem even less plausible than viewing a cake as speech, but in fact a florist in Washington and a photographer in New Mexico had earlier claimed religious exemptions from their state laws, like Colorado's, that prohibit discrimination on the basis of sexual orientation. The supreme courts in those states spurned the pleas, and the U.S. Supreme Court declined to take up the florist's or the photographer's appeals.
      From their side, conservative justices conjured up sympathetic hypotheses about other kinds of individuals who they said might be forced into conscience-straining services if the Court found that Colorado's civil rights law trumps First Amendment pleas. Justice Neil Gorsuch suggested that an African American baker might be forced into baking a cake adorned with a Ku Klux Klan cross. Justice Samuel A. Alito Jr. raised the possibility that  a Jewish baker might be forced to decorate a cake to commemorate Kristallnacht, the Nazi-inspired destruction of Jewish synagogues and businesses in 1938.
      Those hypotheses were enough to help persuade at least one prominent newspaper to take Phillips' side. "Imagine a Jewish baker being required to put a swastika on a cake," the Chicago Tribune wrote in an editorial. As Lambda Legal attorney Eric Lesh noted in a tweet, however, "Nazis are not a protected class." David Cole, the ACLU lawyer representing Craig and Mullins, made the same point during oral argument. "The Ku Klux Klan as an organization is not a protected class," Cole responded.
      Cole began his allotted 15 minutes by acknowledging the sincerity of Phillips' convictions about same-sex marriage but warning that a ruling in his favor would have "unacceptable consequences." He echoed a concern that Justice Elena Kagan had raised that the same religious-based objection might be raised, for example, against providing services for a gay funeral. And he rejected as impossible any effort to draw a line between valid and invalid refusals based on the supposed "expressive content" of a cake as opposed to flowers or makeup or whatever.
      From the start of what proved to be 90 minutes of arguments, all eyes were naturally on Justice Anthony M. Kennedy, the author of the Court's four landmark gay rights opinions over the last 20 years and the Court's most consistent defender of free-speech rights. He gave conflicting signals about his eventual vote.
      Kennedy signaled sympathy for Phillips at one point by complaining of a remark that one of the seven Colorado civil rights commissioners had made criticizing the use of "religious rhetoric" to deny equal rights. At another point, the justice aptly noted that a bakery that posted a sign "no gay weddings" would be "an affront to the gay community."
      Along with Alito and Gorsuch, Chief Justice John G. Roberts Jr. clearly signaled sympathy for Phillips; Clarence Thomas, silent as usual, was also counted as a likely vote. But none of the conservatives seemed to offer a clear line that, as Justice Stephen G. Breyer put it, "will not undermine every civil rights law."
      The case, it turns out, is not about a cake. It is about equal rights, just as Craig and Mullins have maintained throughout. With many observers predicting a ruling for Phillips, the real victim in the case could be the advancing national commitment to equal rights for LGBT individuals.

Sunday, December 3, 2017

At High Court, Party Labels Matter in Patent Case

      The Supreme Court was simultaneously at its best but also its worst during oral arguments last week [Nov. 27] in a closely watched, high-stakes patent case. The question presented in Oil States Energy Services, LLC v. Greene's Energy Group, LLC was whether Congress had created a rights-violating, fast-track procedure for the U.S. Patent and Trademark Office (PTO) to invalidate a previously issued patent as part of an omnibus reform bill six years ago.
      Congress approved the new administrative procedure in 2011 as part of the America Invents Act in response to widespread concern in the intellectual property world that the PTO was impeding instead of promoting innovation by issuing too many patents of dubious validity. The bill, cosponsored by Vermont's Democratic senator Patrick Leahy and Texas's veteran Republican congressman Lamar Smith, was approved by substantial bipartisan majorities in both the House and the Senate.
       Despite that record of bipartisan support, the justices appeared to divide mostly along party lines in either supporting or opposing the new procedure with their questions from the bench during the hour-long arguments. Republican-appointed justices seemed inclined to rule the law unconstitutional while three of the four Democratic-appointed justices clearly signaled they were ready to uphold it.
      The issue in the case is one of those legal questions with no evidently correct answer based either on precedent or constitutional logic. Yet the justices split predictably along party lines, defying efforts by Chief Justice John G. Roberts Jr. among others to portray judges as  something other than politicians in black robes.
      The case pitted two companies in the oilfield services business, one with a patent that the other challenged under the new procedure. Oil States was awarded a patent for apparatuses and methods of protecting wellhead equipment during hydraulic fracturing, according to the summary of the case in the American Bar Association's publication Preview.
      Oil States accused Greene's of infringing the patent, but Greene's responded by successfully challenging the patent as invalid before the newly created Patent Trial and Appeal Board (PTAB) and prevailing in Oil States' appeal of that decision to the U.S. Court of Appeals for the Federal Circuit. In taking the case to the Supreme Court, Oil States argued that the new administrative procedure violated the protections in the Constitution's Article III and the Seventh Amendment for trials before judge and jury in "suits at common law," such as patent disputes.
      The new procedure, known as inter partes re-examination, expanded the PTO's previous procedure known as ex parte re-examination by allowing an outside party to initiate reconsideration of a patent. Liberal justices saw the logic of the new procedure. "There must be some means by which the patent office can correct the errors that it's made," Justice Ruth Bader Ginsburg said as soon as Dallas lawyer Allyson Ho had finished listing five reasons why the procedure violated Oil States' rights.
      Liberal justices Elena Kagan and Sonia Sotomayor echoed Ginsburg's view. Kagan was incredulous that the government could be challenged for creating "a set of procedures that will actually increase the government's accuracy in figuring out whether it made a mistake." For her part, Sotomayor countered Ho's concerns by noting that a PTAB ruling invalidating a patent could be appealed, just as Oil States did, to a federal appeals court.
      Roberts and the court's newest Republican-appointed justice Neil Gorsuch were clearest of the conservative bloc in questioning what the three liberals depicted as eminently sensible. Both raised unrealistic hypotheticals to test the arguments defending the new procedure from Greene's attorney, Tallahassee lawyer Christopher Kise, and deputy solicitor general Malcolm Stewart arguing for the government.
      With Kise at the lectern, Gorsuch asked whether the government could re-examine a land patent — legal jargon for a land grant — "at any time, even hundreds of years" after the land had been farmed, sold, and developed. With dripping disdain, Gorsuch asked whether the hypothetical land grant could be "revoked by the government by bureaucracy in, I suppose, the Department of the Interior" — referencing one of the least popular federal agencies in Gorsuch's native Colorado.
      Gorsuch tied up the analogy by citing precedents and the Constitution as describing patents as a property right. "[O]nce it's granted," Gorsuch concluded, "it's a right belonging to the inventor." Gorsuch renewed the point when Stewart stepped to the lectern by returning to a question about investments and reliance interests that Justice Stephen G. Breyer had raised earlier. Stewart stood his ground. "It has always been part of the scheme that a patent could be re-examined," the veteran government lawyer said.
      Stewart also turned aside a hypothetical that Roberts had posed to Kise to allow the government to fire an employee based on a coin toss instead of a formal adjudication. No, Stewart said in returning to Roberts' question, "the procedures still have to be fair." Roberts, a stickler for judicial powers with a record of throwing barbs at administrative agencies, was evidently unpersuaded.
      By the hour's end, the pivotal vote seemed likely to lie with Justice Anthony M. Kennedy, the only one of the nine who regularly crosses the court's ideological fault line. His questions seemed to indicate an open mind on the case. But conservative justice Clarence Thomas, silent as usual, and fellow conservative Samuel A. Alito Jr. seemed likely to stick with their Republican-appointed colleagues Roberts and Gorsuch.
      Gorsuch quotably rejected party labels when up for confirmation this spring. "There's no such thing as a Republican judge or a Democratic judge," he told the Senate Judiciary Committee. But with Gorsuch on the bench, the Roberts Court remains as neatly divided along party lines in close cases as it has been ever since the retirements of two line-crossing Republican-appointed justices, John Paul Stevens and David H. Souter. Judicial purists may resist this description, but in this case and many others party labels matter very much at One First Street even if the justices wear black robes on the job.