Sunday, June 17, 2018

At Supreme Court, Justices Clash on Right to Vote

      Viewed in strictly political terms, the Supreme Court's decision on Ohio's aggressive program of removing nonvoters from registration rolls was easy to predict  and the predictions proved to be right. Five Republican-appointed conservative justices voted to uphold a program that the state's Republican secretary of state touted as having removed 1 million people from voter rolls over three election cycles. But four Democratic-appointed liberal justices found the program to be in violation of a federal law that prohibits deregistering voters "by reason of a failure to vote."
      Writing for the majority in Husted v. A. Philip Randolph Institute [June 11], Justice Samuel A. Alito Jr. wrapped himself around what he saw as the clear meaning of overlapping statutory provisions from two federal laws passed a decade apart aimed, respectively, at making it easier to register to vote or actually to vote. He and his conservative colleagues saw in those laws permission for Ohio to warn non-voters that they would be removed from registration rolls unless they returned a mailed notice to prove their current residence.
      Unsurprisingly, given human nature, the vast majority of Ohioans who received those notices tossed the notices without returning them. Those who failed to vote in the next two elections were purged from the registration rolls: more than 1 million, by Husted's count, from the time of his election to the post in 2010 up to the beginning of the legal challenge to the procedure in 2015.
      Alito concluded a complex dissection of the two federal statutes involved by insisting that the liberal justices' dissent amounted to a "policy disagreement" rather than a different reading of the statutory provisions. He was right, but wrong in his diagnosis. The justices' policy difference turns not on the mechanics of updating registration rolls, but on the priority that the liberal bloc places on the right to vote itself.
      The liberal justices seem to have a better appreciation than the conservatives of the many hard battles fought to win and protect the right to vote from Seneca Falls in the 19th century to Selma in the 20th. As seen in the Court's decisions upholding voter-ID laws, the conservatives have too readily accepted the unsubstantiated fear of voter fraud spread for partisan reasons by Republican politicians and conservative interest groups. The liberal justices see the right to vote as too important to sacrifice to the partisan interests of those with an un-American distrust of the expanded franchise.
      Given Ohio's importance as a battleground state, the Court's decision is politically significant of itself in its implications for future elections. But it takes on more significance by giving election officials in other states a roadmap if they want to emulate Ohio's Jon Husted in bragging not about registering more voters but about removing once-qualified voters from registration rolls.
      Alito's claimed fidelity to congressional enactments strains credulity given the stated goal of the first of the two federal laws at issue. The National Voter Registration Act, enacted in 1993 and better known as the Motor Voter Act, was most prominently aimed at increasing voter registration. The law required states to allow would-be voters to register at sites used for obtaining driver's licenses or obtaining public assistance.
      Along with those provisions, the 1993 law also required states to establish a "general program" for updating voter registration rolls — specifically by making "a reasonable effort" to remove voters who become ineligible by changing their residence. But the act's Failure-to-Vote Clause specifically prohibited removing any registered voter "by reason of the person's failure to vote."
      The Help America Vote Act, enacted in 2002 with the Florida vote-count fiasco in mind, was aimed primarily at helping state and local election officials upgrade and safeguard their voting and vote-counting machinery with the assistance of a new federal agency, the Election Assistance Commission. The law also included a provision that either reinforced or merely clarified the Failure-to-Vote Clause by providing that no registrant be removed "solely by reason of a failure to vote."
      Writing for the four liberal dissenters, Justice Stephen G. Breyer argued that Ohio's procedure removed registered voters "by reason of" their failure to vote: the very reason they were selected for what he called the "last chance" notices. Alito countered by emphasizing the adverb "solely" in the later law: removed only for failing to confirm their residence, not for non-voting. Breyer had what ought to have been a convincing rebuttal: the state's effort to verify residence was not "reasonable," as the 1993 law required.
      Out of more than 1.5 million notices mailed out, fewer than one-third were returned, Breyer noted, with 60,000 confirming a change of address and 235,000 verifying their listed residence. It was unreasonable, Breyer argued, to assume that the 1 million-plus Ohioans who tossed the notices without returning them had moved. Indeed, he mocked the idea that 13 percent of Ohio's voting population had moved in a matter of years. "[T]he streets of Ohio's cities are not filled with moving vans," he wrote.
      In a separate dissent, Justice Sonia Sotomayor cut to the chase by noting the disparate impact of Ohio's procedure: 10 percent of voters removed in African-American neighborhoods in Cincinnati compared to 4 percent in a majority-white suburban neighborhood. Alito's terse response: Sotomayor's concerns were "misconceived." The question naturally arises: what part of voter suppression do the conservatives not understand?

Saturday, June 9, 2018

In Wedding Cake Case, an Advance for Gay Rights?

      Justice Ruth Bader Ginsburg opened her dissent from the Supreme Court's decision in the gay wedding cake case by saying that she agreed with "much" of Justice Anthony M. Kennedy's opinion for the 7-2 majority. Among other losers, David Cole, national legal director of the American Civil Liberties Union, went further. "We lost the battle, but we won the war," he wrote in an op-ed for newspapers.
      Gay rights advocates in fact walked off with a win of sorts in this week's Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission [June 4], but it is only a beginning, not the end of the war with anti-gay religious conservatives.
      Kennedy opened the substantive sections of his opinion by picking a winner between same-sex couples seeking goods and services for their weddings and Christian business operators unwilling to serve them because of "religious and philosophical objections." Writing with black-letter law certitude, Kennedy declared, as a "general rule," the primacy of civil rights law. "Such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law," he wrote.
      In advance of that general rule, Kennedy made clear that gay persons and gay couples can be — "and in some instances" must be — protected in the exercise of their civil rights. "Our society has come to the recognition," Kennedy wrote and read forcefully from the bench, "that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth."
      A victory, to be sure, but only in those 19 states that include protection for sexual orientation in their public accommodation laws. In the others, same-sex couples denied service have no recourse even if a business operator does not couch bias in religious terms.
      In this case, Charlie Craig and David Mullins end with little to show for the indignity they suffered back in July 2012 when the devout Christian baker Jack Phillips dismissed them from his Masterpiece Cakeshop in suburban Denver. Instead of dwelling on that indignity, however, Kennedy focused on what he and six other justices saw as the "clear and impermissible hostility" that the Colorado Civil Rights Commission and the state's court system showed toward Phillips' religious beliefs.
      That hostility consisted in part of remarks by two civil rights commissioners from the two meetings back in 2013 when the seven-member commission considered the staff's recommendation to find Phillips guilty of having violated the state's anti-discrimination law. One commissioner suggested, in Kennedy's summary, that Phillips needed to change his "personal belief system" to do business in the state. The other declared, more provocatively, that religion had been used through history to justify discrimination — including slavery and the Holocaust.
      Kennedy and the others — all but Ginsburg and her dissenting colleague Justice Sonia Sotomayor — found these remarks objectionable, all the more so because no commissioners objected and the state never disavowed them. Further evidence of hostility was the commission's decision not to charge three bakers with civil rights violations by rejecting a customer's religion-based requests for a cake with explicit anti-gay marriage inscriptions.
      Those cases were readily distinguishable from Phillips' even if the rationale was poorly expressed by the commission. And Ginsburg found the commissioners' comments similarly no reason for absolving Phillips for the refusal to serve Craig and Mullins. But Kennedy and the others were so confident in their view that they invalidated the commission's order with no remand to allow reconsideration with the claimed hostility toward religion removed.
      Despite the reversal, experts at the annual meeting of the progressive American Constitution Society this week [June 8] saw more silver lining than cloud. "In many ways, the decision was exactly what we needed--legally and politically," said Shannon Minter, legal director for the National Center for Lesbian Rights. With the reversal, "religious conservatives feel they have been seen and heard," Minter said, and further to the good they have been "deprived of the opportunity to feed a grievance strategy."
      In a quick confirmation of the civil rights groups' optimistic reading of the decision, the Arizona Court of Appeal cited Kennedy's "general rule" in a decision on Thursday [June 7] rejecting a Phoenix stationery store's plea for an exemption from serving same-sex couples. "If appellants . . . want to operate their for-profit business as a public accommodation, they cannot discriminate against potential patrons based on sexual orientation," the court wrote in Brush & Nib Studio LC. v. City of Phoenix.
      Kennedy closed his opinion with an even-handed admonition that future cases of the sort "must be resolved with tolerance, without undue respect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market." But religious conservatives responded to the decision with exultant claims of victory belying the hoped-for tolerance. In Tennessee, a hardware store owner in a small, remote county posted the kind of sign that Kennedy had warned against: "No Gays Allowed."
      The Supreme Court has seen this story before: the "all deliberate speed" rule to dismantle racial segregation in public education turned into decades of resistance and foot-dragging. With an ambivalent victory, gay couples can expect the same for the foreseeable future.

Sunday, June 3, 2018

Thomas's Lone-Wolf Call to Abolish Exclusionary Rule

      Supreme Court Justice Clarence Thomas wants to abolish the most important legal rule that protects Americans from illegal searches by police. Writing only for himself in a decision last week [May 21], Thomas argued in a nine-page concurring opinion that the oft-criticized exclusionary rule for suppressing illegally obtained evidence has no historical basis and the Supreme Court no authority to require states to adopt it.
      Thomas prefaced his opinion in Collins v. Virginia by agreeing that Charlottesville, Va., police officers had violated Ryan Collins' Fourth Amendment rights by conducting a warrantless search in the driveway of his girlfriend's home that uncovered a stolen motorcycle. But in Thomas's telling, the Framers of the Constitution "would not have understood the logic of the exclusionary rule" — the century-old rule that bars the use of illegally obtained evidence in federal courts.
      The Supreme Court used its supervisory power over federal courts to adopt the exclusionary rule in Weeks v. United States (1914), Thomas recites the subsequent developments. Three decades later, the pre-Warren Court refused on a 6-3 vote to impose the exclusionary rule on states in Wolf v. Colorado (1949). Twelve years later, however, the Warren Court launched the criminal procedure revolution by overruling Wolf with its 5-3 ruling in Mapp v. Ohio (1961). to require states to rule any evidence obtained in violation of the federal Constitution inadmissible in state criminal trials.
      Thomas relates these developments as though in answer to a legal history exam, with only a single footnote about the potential impact of abolishing the exclusionary rule. Without that rule, Ryan Collins would still stand convicted of receiving stolen property despite the constitutional violation. He would have no recourse except a civil suit against the police officers who conducted the illegal search or perhaps a disciplinary proceeding against the officers.
      As to civil suits, the Court's recent decisions on qualified immunity protect police from liability for all but the most clear-cut constitutional violations, In Collins' case, for example, the dissenting justice Samuel A. Alito Jr. argued that the two Charlottesville officers were "entirely reasonable" in going on to the driveway to pull off the tarpaulin that shielded Collins' motorcycle from public view.
      Writ large, abolition of the exclusionary rule would surely encourage police officers to give less regard to the sometimes difficult-to-discern Fourth Amendment rules as to what amounts to an "unreasonable" search. The recent history of police practices — think about the continuing toll of unarmed civilians killed in police encounters or the uncounted number of innocent pedestrians subjected to "stop and frisk" pat-downs — argues strongly against loosening rules aimed at controlling police conduct.
      Thomas blithely suggests in a last-page footnote, however, that state tort law, state criminal law, federal civil rights suits, and police discipline are all "effective deterrents" against Fourth Amendment violations by police. "The problem before Mapp was there weren't any remedies," says Orin Kerr, a Fourth Amendment expert at George Washington University Law School.
      Thomas's originalist critique breaks no new ground. "I didn't see anything new," says Kerr. It would draw no more interest than the most recent Twitter exchange among original meaning cultists but for the likelihood that Thomas has at least another 10 years to try to find five votes for his view and the supposition that Thomas now thinks that a realistic possibility.
      For now, none of the other justices is ready to abolish the exclusionary rule, not even Thomas's newfound pal, Neil Gorsuch. "I don't see it as something likely to happen any time soon," says Kerr. Among the many other lone-wolf opinions that Thomas has written in 27 years on the Court, however, one stands out as having helped get the ball rolling on a major change in constitutional law.
      When the Court struck down part of the Brady Handgun Violence Prevention Act in in Printz v. United States (1997), Thomas called in a short concurring opinion for reconsidering the 60-year-old precedent that the Second Amendment did not establish a personal right to possession of firearms. A decade later, Thomas was part of the five-justice majority that adopted that view in District of Columbia v. Heller (2008) and then, two years later, enforced the same gun-rights protective view to state and local governments in McDonald v. Chicgo (2010).
      In his new opinion, Thomas acknowledges that the Mapp Court described the exclusionary rule as "an essential part of the Fourth and Fourteenth Amendments." But he cites a string of subsequent decisions as contradicting what he calls the Court itself has called Mapp's "expansive dicta
."       Thus, through the years, the Court has carved out exceptions to the exclusionary rule, including several from the Roberts Court. In Roberts' first term, for example, the Court issued a 5-4 ruling in Hudson v. Michigan (2006) that an acknowledged  violation of the Fourth Amendment-derived "knock and announce" rule did not require suppression of the evidence police found after barging in to a private home without warning.
      For now, the Roberts Court has been "strong on the right," according to Kerr, but "weak on remedies." Thus, in Collins' case, Justice Sonia Sotomayor spoke for eight justices in declaring a driveway entitled to the same protection that the Fourth Amendment extends to the home. But Thomas's shot-across-the-bow concurrence underscores the risks to individual rights that could materialize with future changes in the Court's personnel.

Thursday, May 24, 2018

Gorsuch Vote Deals Unequal Justice for Workers

      Justice Neil Gorsuch cast the most important vote of his Supreme Court tenure so far in a decision this week [May 14] that consigns 25 million American workers to take workplace disputes with their employers to a quasi-legal system tilted against them. Gorsuch wrote and cast the tie-breaking vote in Epic Systems, Inc. v. Lewis to allow employers to enforce arbitration clauses that prevent workers from banding together in disputes over, for example, alleged violations of federal wage and hour laws.
      For forgotten working class voters in President Trump's political base, this decision is their payoff: argue with your boss over wage theft in arbitration, not in court, and bear the cost and any risk of retaliation all by yourself. In Gorsuch's telling, the employees in these cases all "agreed" to these terms even if, as Justice Ruth Bader Ginsburg noted in dissent, the fine-print terms were in "take-it-or-leave-it" contracts.
      The employees in two of the consolidated cases,  Epic Systems and Ernst & Young LLP v. Morris, went to federal court instead to claim that their companies had misclassified them as professional employees not entitled to overtime pay. In the third case, National Labor Relations Board v. Murphy Oil USA, Inc., Sheila Hobson decided to complain to the NLRB that she was forced to work off-the-clock without pay to monitor prices at rival companies' service stations.
      The employees' claims were far too small to justify an all-out legal war. So they joined with others to try to take on their employers together. No dice, the companies said, citing the clauses that limited any disputes to individual, not class, arbitration,
      The cases posed a seeming conflict between two federal laws: the pro-arbitration Federal Arbitration Act (FAA), enacted in 1925, and the pro-worker National Labor Relations Act, enacted a decade later in 1935. The FAA, enacted to override judicial reluctance to enforce arbitration agreement between businesses, provides generally that arbitration agreements are enforceable just like any other contract. The labor law provides that workers have the right to form and belong to unions, to bargain collectively, and to "engage in other concerted activities . . . for mutual aid and protection."
      In his majority opinion, joined by the other four Republican-appointed conservatives, Gorsuch concluded that class arbitration is not one of the "concerted activities" protected by the labor law. This interpretation comes from a justice who proudly identifies himself as a "committed textualist."
      In this case, Gorsuch imposed a narrow construction to the disadvantage of the complaining workers. Critical observers may recall the controversy at his confirmation about his dissent in the so-called Frozen Trucker Case. In that case, Gorsuch interpreted a trucker safety law so narrowly as to leave a stranded trucker no legal protection against being required to risk frostbite in subzero weather in his inoperable vehicle.
      The advantages and disadvantages of arbitration as opposed to in-court litigation are grist for a long debate, but individual arbitration clearly leaves the complaining worker out-resourced in a dispute with the employer. Gorsuch works in a building with a motto carved in marble above the entrance: "Equal Justice Under Law." In this case, however, the Gorsuch-led majority dispensed not equal justice, but unequal justice for U.S. workers.
      Gorsuch's vote marked the eighth time to cast a tie-breaking vote in a 5-4 decision. The justices vote in conference in order of seniority, so Gorsuch literally breaks the tie in these cases. In this case, eight justices divided down the middle before it came Gorsuch's turn to vote. Yet, in his opinion, Gorsuch said the correct result was "clear.".
      The one typical result in Gorsuch's other tie-breaking votes has been to extend "equal justice" to those least in need of the law's protection and deal out seemingly unequal justice to those in need of the law's benefit. Thus, in two procedurally complex cases, he blocked a Texas death row inmate from challenging his death sentence because of woefully deficient legal representation (Davila v. Davis) and prevented California's public employee pension system from suing Wall Street underwriters for funny figures in a public stock offering (California Public Employees Retirement System v. ANZ Securities, Inc.).
      In a more important case this year, Gorsuch cast the decisive vote in Jesner v. Arab Bank PLC  to immunize foreign corporations from being sued for human rights violations in U.S. courts:in this case, the Jordanian bank that allegedly serves as global paymaster for Hamas, helping to finance suicide bombers and other terrorist attacks. In other cases, Gorsuch helped limit damage awards for prisoners in some federal civil rights suits (Murphy v. Smith) and blocked car dealer service advisors from getting overtime pay (Encino Motorcars LLC v. Navarro). One more: In SAS Institute v. Iancu, he strictly interpreted a statutory phrase to give companies challenging a patent an extra measure of procedural rights.
      Only once has Gorsuch provided a tie-breaking vote to the liberal bloc. In that case, Sessions v. Dimaya, Gorsuch joined in ruling a criminal code provision too vague to be used to mandate deportation of an immigrant with a minor criminal conviction. Oddly, his vote there aligned with his strict approach to statutory construction in disagreement with a more flexible interpretation advanced by Chief Justice John G. Roberts for the four conservative dissenters.
      With 32 cases awaiting decision, Gorsuch is likely to be the tie-breaker in a few more this term. Equal justice for some; for others not so much. As President Trump might say, "We'll see what happens."

Sunday, May 20, 2018

New Evidence Shows No Time to End Mueller Probe

      The smoking gun that implicated President Richard M. Nixon in the Watergate cover-up emerged two full years after the break-in itself and more than a year after the appointment of Archibald Cox as special prosecutor to take over the case from the U.S. attorney's office. With that history in mind, no one should be surprised that special counsel Robert Mueller has been investigating the Trump campaign's connections with Russia for a full year now without having gotten to the bottom of this pit of Trump-style duplicity and obfuscation.
      Nixon marked the one-year anniversary of the Watergate investigation with a plea to shut it down. "I believe the time has come to bring that investigation and the other investigations of this matter to an end," Nixon urged on January 30, 1974, in what proved to be his final State of the Union address to Congress. "One year of Watergate is enough!"
      President Trump and his vice president, Mike Pence, channeled Nixon in making the same plea for an end Mueller's investigation. "I think it's time to wrap it up," Pence declared in a n interview with CNN [May 10] after claiming somewhat disingenuously to have "fully cooperated" with the investigation. Trump marked the actual one-year milestone [May 17] with a mocking tweet: "Congratulations America, we are now into the second year of the greatest Witch Hunt in American History."
      Mueller himself had no reactions, but senators from both parties batted the White House's line away. "That's not his call to make," South Carolina Republican Lindsey Graham said of Pence's plea. Senate Democratic leader Chuck Schumer used a floor speech to declare Mueller's investigation "not a witch hunt" and to denounce the efforts by conservative media and "extreme" elements in the Republican Party to "distract from the special counsel's investigating."
      Inconveniently for Trump, new evidence emerged only two days after his tweet  in an article in the New York Times showing that his campaign entertained efforts to influence the U.S. election not only from Russia but also from an emissary purporting to represent Saudi Arabia and the United Arab Emirates. It turns out that Donald Trump Jr. was meeting at Trump Tower in summer 2016 not only with Russian emissaries offering dirt on Hillary Clinton, but also with an adviser to the UAE's Crown Prince Mohammed bin Zayed Al Nahyan and an Israeli social media specialist offering help for Trump's then lagging-in-the-polls presidential campaign.
      Trump dissembled about the Russian meeting in a statement that Trump helped draft from the Oval Office. But Junior's email traffic eventually confirmed the purpose of the June 9 meeting and forced him into the fallback position that nothing ever came of it. Junior has settled more quickly on that same position in regard to the Aug. 3 meeting with the Gulf states' emissary George Nader and the Israeli social media practitioner Joel Zamel. Alan Futerfas, a lawyer representing Junior, told the Times that Junior recalls the meeting, but that after listening to the pitch Junior "was not interested and that was the end of it."
      Junior's effort to fashion an innocent ending for the two disclosures brushes over the damning fact that he took the meetings in the first place instead of responding, indignantly, that federal law prohibits foreigners from contributing to a campaign for federal office. His other defense, modeled after Nixon's famous advice in the Watergate investigation, is a failing memory.
      Transcripts of Junior's interview by the Senate Judiciary Committee released last week [May 16] show that he answered 171 times with the impossible-to-cross-examine reply, "I don't recall." His lapses of memory included an inability to recall the individual with a blocked number that he called to report on the meeting — thus, avoiding the evident implication that he called his candidate-father himself. Rep. Eric Swalwell, a California Democrat on the House Intelligence Committee, aptly commented on CNN that "I don't recall" was "code for Yes."
      Meanwhile, the Republican-majority Senate Intelligence Committee was underscoring the reasons for the Mueller probe to continue by endorsing the U.S. intelligence community's finding that Russians attempted to influence the 2016 presidential election. By now, the hyperpartisan House Intelligence Committee is the only governmental entity — apart from the Oval Office — resisting this conclusion. The evidence of Russia's active social-media campaign in Trump's behalf is damning, but not enough to move the administration or Republicans in Congress toward fashioning legislation to prevent a recurrence.
      The Oval Office-inspired clamor for Mueller to "wrap it up" shows no immediate sign of receding, however illogical. One of my journalist friends noted on Twitter that Watergate was not the only special counsel investigation to last more than a year. "The Whitewater investigation lasted six years & the Iran/Contra probe lasted four," former New York Times reporter Steven Greenhouse noted on Twitter. He called Russia's interference in the 2016 election and the possible collusion "far more serious matters" than those and noted that Mueller's supposed witch-hunt has already resulted in five convictions without also mentioning the pending indictments of the accused Russian meddlers.
      Mueller's investigation gained judicial endorsement when a federal judge last week [May 15] rejected the plea by Trump's indicted former campaign chair Paul Manafort that his indictment went beyond Mueller's scope of authority. Judge Amy Berman Jackson underscored the charge to Mueller to investigate "any links and/or coordination between the Russian government and individuals associated with the campaign." With more smoke emerging day by day, Mueller deserves encouragement not to wrap things up but to document the full story of foreign interference in Trump's election, however embarrassing that may be to the candidate who benefited.

Saturday, May 12, 2018

On Blue Slips, Republicans' Hypocrisy Is Showing

      President Obama had been in office for less than two months when the Senate's Republican minority sent him an earnest letter imploring him to take steps what the letter called the "needlessly acrimonious" process of federal judicial appointments. The letter, signed by all 41 GOP senators, urged the president to consult with senators on judicial nominations and promised to block action on any Obama nominee who was not approved by senators from the nominee's home state.
      The letter's oblique reference to the Senate's long-established "blue slip" procedure cast "the principle of senatorial consultation (or senatorial courtesy)" as part of the Senate's "unique constitutional responsibility to provide or withhold its Advice and Consent on nominations." That was then, but this is now. Two of those who signed the letter, the Senate's GOP leader Mitch McConnell and the current Judiciary Committee chairman Charles Grassley, are pronouncing last rites for the blue slip procedure so that a Republican president can pack the federal judiciary without a semblance of bipartisan comity.
      The blue-slip procedure holds up Senate action on a president's judicial nominees until senators from the nominee's home state return a blue slip of paper assenting to the nomination. It is a custom, not a Senate rule much less a constitutionally prescribed requirement, but a custom long followed in a body that requires a measure of collegial courtesy to get some of its work done.
      Grassley took to the Senate floor this week [May 9] , however, to denounce the blue slip procedure as an extraconstitutional limitation on the president's Article II power to nominate candidates for lifetime seats on federal courts. Neither Grassley nor McConnell is known to have uttered any doubts about the procedure when they honored and practiced it to bottle up some of Obama's judicial nominations during his years in the White House.
      The double standard on this issue, sad to say, extends beyond the ignominious Senate Republicans to the gadfly journalist David Lat, who opined in The New York Times this week [May 9]: "Good riddance to the blue slip." Lat, a personal friend despite our ideological disagreements, conceded in reply to my question that he could not recall writing about the issue back when Republicans wielded it against Obama.
      Lat now admits that Republicans "abused" the procedure and casts his belated criticism as aimed at public rather than partisan interests. The blue slip procedure hurts the federal bench by leaving judicial vacancies unfilled and unfillable, he says. Its demise may benefit Republicans today or Democrats tomorrow, but the federal judiciary will be "the true winner" in the long run.
      Given current conditions, however, Lat is completely off point. Republican obstructionism in the final year of Obama's presidency left a record number of federal court vacancies as he left the White House. Now, Trump is choosing nominees at breakneck pace. A 61-page report by Judiciary Committee Democrats released on Thursday [May 10] details the Republicans' thus-far successful "efforts to stack the federal courts" with right-wing ideologues. The report decries the "degradation" of the confirmation process so as to limit any true deliberation.
      Grassley has changed the previous practice of scheduling only one circuit court nominee at a time in favor of allowing two circuit court nominees along with multiple district court nominees all on the same day. The Democrats note that stacking nominees hampers senators' ability to study background materials or thoroughly question nominees. After hearings, judges are confirmed "as quickly as possible, without thorough review" — with floor votes on average only 20 days after committee action.
      Now, the Republicans are moving to short-circuit floor procedures as well by proposing to limit debate on district court nominees to two instead of 30 hours once the Republican majority votes to invoke cloture. The resolution introduced in December by Oklahoma Republican James Lankford is awaiting consideration in the face of a strongly worded letter from civil rights organizations opposing the move.
      Lat professes to be agnostic about the nominees who are being rushed into lifetime tenure through this process. Most court cases would come out the same way regardless of the judge's politics, he argues. The short answer to that argument: Neil Gorsuch and the frozen truck driver.
      Clearly, Trump, Senate Republicans, and Trump's political base are counting on his judges to shift federal courts away from protecting, for example, LGBT rights  and toward favoring companies in disputes over regulatory policies protecting consumers, workers, and the environment. The Democrats' report underscores the contrast between Obama's judges and Trump's. Obama's judges represented the full diversity of America: 52 percent of district court nominees, persons of color; 52 percent, women. Trump's vision appears to be a federal judiciary of white men: only 8 percent of district court nominees are persons of color and only 24 percent women.
      One final point: the president who is so intent on reshaping the federal judiciary has little respect for the rule of law or the goal of impartial justice. The candidate who attacked the Mexican-American judge in the Trump University case is now the president who attacks judges who rule against his policies — as many have done. Contrary to Lat, the federal judiciary will not be the winner if Trump is given an even freer hand in choosing federal judges. 

Saturday, May 5, 2018

On Hush Money, Trump Tries to Change Subject

      President Richard Nixon famously tried to deflect the talk of impeachment in fall 1973 with an eminently quotable declaration of innocence in a televised news conference with the nation's newspaper editors. ""People have got to know whether or not their President is a crook," Nixon declared. "Well, I'm not a crook."
      Nixon was facing accusations of political espionage and obstruction of justice far more serious than stealing from the government's cookie jar, but "I'm not a crook" was the dominant sound bite on the network newscasts that day and in newspaper headlines the next day. Nixon's effort to change the subject failed in the end only after the Oval Office tapes confirmed his deep involvement in the Watergate cover-up.
      President Trump and his new wartime consigliere Rudy Giuliani appear to be borrowing from Nixon's subject-changing playbook to try to get rid of the controversy over Trump's alleged sexual affair with porn star Stormy Daniels a decade ago. For weeks, Trump had been denying the affair and in addition denying any role in the $130,000 hush-money payment to Daniels from his lawyer Michael Cohen three weeks before the November 2016 election.
      Giuliani went off on a completely different tack this week [May 2] by announcing to Fox News' Trump-loving host Sean Hannity that Trump actually had reimbursed Cohen for the payment. Giuliani's claim, within days after Trump added him to his White House legal team, directly contradicted Trump's and Cohen's previous statements that Cohen had paid the money himself without ever having been reimbursed directly or indirectly by Trump or the Trump organization.
      Any method behind Giuliani's startling claim appears to have been his specifying that Trump paid Cohen back from personal funds, not from his campaign treasury. "No campaign finance violation," Giuliani told Hannity. "Zero," he added with a wide Cheshire-cat grin on his face.
      Hannity appeared to be totally satisfied. "I didn't know," he said matter-of-factly without noting the complete contradiction of Trump's prior statements. But legal experts on other cable news channels, CNN and MSNBC, pounced viciously on Giuliani's statements as implicating rather than exonerating Trump and Cohen.
      From the initial disclosure, campaign finance experts viewed Cohen's payment as a campaign-related expenditure aimed at keeping a lid on Daniels' accusation at least until after the election. On that premise, the nonpartisan Campaign Legal Center filed a complaint with the Federal Election Commission (FEC) charging Cohen with a $130,000 contribution to Trump's campaign, well in excess of the $2,700 limit on individual contributions under federal law.
      Appearing on CNN with host Don Lemon, former Clinton White House counsel Jack Quinn noted that Giuliani's seemingly exculpatory statements were completely off point. "'We never used campaign funds,'" Quinn said, paraphrasing Giuliani. "That's not the issue. That was never the issue."
      Giuliani also tried to depict the hush-money payment as aimed at sparing Trump's wife Melania from embarrassment rather than protecting Trump's candidacy. With no regard for the evident implausibility, Giuliani went on in any event to contradict himself in a later appearance on Fox and Friends. "Imagine if that came out on Oct. 15, 2016, in the middle of the last debate with Hillary Clinton," Giuliani said, making the hush money's campaign-related purpose evident.
      For FEC purposes, Trump's eventual reimbursement to Cohen is meaningless for the lawyer's legal exposure. FEC regulations make clear that a loan to a campaign is subject to the same limit as a contribution: "A loan that exceeds the contribution limitations of 52 U.S.C. §30116 and 11 CFR part 110 shall be unlawful whether or not it is repaid."
      Far from exonerating the president, Trump's previously undisclosed reimbursement puts him squarely in legal crosshairs. If campaign-related, the expenditure needed to be included in spending reports with the FEC: it was not. If a loan or advance from Cohen, the debt needed to be included in Trump's June 2017 financial disclosure form: it was not.
      Admittedly, the future of Trump's presidency is unlikely to hinge on violations of federal disclosure laws. But Giuliani added further to Trump's legal exposure with a new explanation of the president's decision to fire FBI director James Comey. Trump had muddied those waters months ago, first by linking his decision to Comey's supposed mishandling of the campaign-time investigation of Clinton's email server and then by acknowledging the connection to the special counsel's Russiagate investigation.
      In the newest version of events, Giuliani claimed that Trump decided to fire Comey when the FBI director refused to make a public declaration that Trump was not a target of the Russiagate investigation. With a stronger link to the special counsel's investigation, the firing seemingly strengthens the case for charging Trump with obstruction of justice, if not in an indictment at the least in Robert Mueller's final report.
      Practicing lawyers who appeared on CNN or MSNBC appeared to be unanimous in viewing Giuliani's comments as an unforced error by a spotlight-loving politician. Giuliani insisted, however, that he made the statements after conferring with Trump and with the president's blessing. In the end, the episode gives Trump's critics this consolation: Trump and those around him are simply too incompetent to pose a lasting risk to American democracy, despite their worst efforts.

Sunday, April 29, 2018

On Muslim Ban, Justices Unfazed by Diplomatic Harm

      The Supreme Court's conservative majority was very troubled last week about the risk of diplomatic friction between the United States and other countries when they decided to bar suits in U.S. courts against foreign corporations for violations of international law. Writing for a 5-4 majority in Jesner v. Arab Bank (April 17), Justice Anthony M. Kennedy stressed that the government of Jordan had warned it would regard it as an affront to its sovereignty if the Jordanian-based Arab Bank were hauled into U.S. courts for helping to finance the terrorist organization Hamas.
      Kennedy noted concerns raised by a number of other countries about the recent discovery of the 225-year-old Alien Tort Statute as a vehicle for allowing human rights suits in U.S. courts against foreign individuals and companies for overseas human rights violations. In a forceful dissent, however, Justice Sonia Sotomayor noted that the State Department's legal advisor had signed briefs in this and one earlier case arguing against giving foreign corporations legal immunity for human rights violations.
      Foreign policy concerns are usually not part of the Supreme Court's job description, as Kennedy himself acknowledged in his opinion even while considering them. Given the debate in Tuesday's decision, however, it was ironic that the justices breathed not a single word during arguments the next day over the diplomatic harm the United States is already suffering from President Trump's anti-Muslim travel ban.
      The hour-long arguments in Trump v. Hawaii (April 18) left observers predicting a decision to uphold Trump's downsized version of the complete Muslim ban that he had promised in his campaign. The 18-page proclamation that Trump issued in mid-September stopped short of that goal, but imposed substantial limits on travel to the United States by individuals from seven countries, including five Muslim-majority nations in the Mideast and Africa.
      Trump has vented anti-Muslim animus both as candidate and as president to the evident detriment of U.S. standing not only in the Muslim world but also in many of the United States' closest allies. A global poll by the Pew Research Center last summer after courts had ruled against Trump's earlier executive order found that 62 percent of those surveyed disapproved of the travel ban and only 32 percent approved.
      The controversy over what opponents insist on calling the Muslim ban has contributed to a worldwide drop in public confidence in the U.S. president. Barack Obama left office in 2016 with 64 percent of respondents voicing confidence in him compared to 23 percent with no confidence. Six months into Trump's presidency, the results were flipped: 74 percent of respondents voiced no confidence in him and only 22 percent had confidence in him.
      In Indonesia, the world's most populous Muslim majority country, confidence fell from 64 percent under Obama to 23 percent under Trump. The decline in the United States' closest ally, Britain, has been sharper: from 79 percent to 22 percent. The controversy over the travel ban is one of several factors cited in the British government's decision to deny Trump a full-blown state visit this summer.
      Trump has been a diplomatic bull-in-the-china shop on a range of issues, of course: not just by imposing the Muslim travel ban, but also by pulling out of the trans-Pacific trade deal and the Paris climate change agreement. Those last two issues are outside the justices' concerns, but the travel ban touches directly on issues of equal treatment that fall within the Court's jurisdiction.
      Defending Trump's order, Solicitor General Noel Francisco minimized its scope. "This is not a so-called Muslim ban," Francisco told the justices, since it excludes "the vast majority of the Muslim world." In challenging the ban as illegally discriminatory, Neal Katyal, a former acting U.S. solicitor general, rejected Francisco's point by noting that an employer would be guilty of racial discrimination by firing an employee because of race even if others of that race were still on the job.
      No court has yet to uphold any of the three versions of Trump's travel ban. In the Hawaii case, the Ninth U.S. Circuit Court of Appeals ruled that the ban violated an immigration law provision that prohibits discrimination on the basis of nationality. In the separate case still awaiting Supreme Court review, the Fourth U.S. Circuit Court of Appeals found that the ban amounted to anti-Muslim discrimination in violation of the Constitution's religious liberty clause.
      Francisco defended the travel ban by insisting that the countries affected had been found by an interagency review to fall short in their vetting procedures for travelers to the United States. Chief Justice John G. Roberts Jr. was one of several conservatives who seemed ready to accept the review as washing away the taint from Trump's anti-Muslim rhetoric. The conservatives also appeared ready to give the president a wide berth on immigration issues even in the face of congressional actions to the contrary and even without any justification of its claimed national security concerns.
      The Court bases its decision on law, of course, not on public opinion, but it takes pains at time to stay within some broad range of public opinion. A recent poll conducted for Muslim Advocates found that only 36 percent of Americans approve of the travel ban compared to 44 percent who disapprove. Demonstrators on the day of arguments carried placards declaring immigrants and refugees to be welcome in the United States. But the Court that proudly promises equal justice under law seems headed in an opposite direction.

Sunday, April 22, 2018

At Supreme Court, Originalism's Illusory Promise Exposed

      "The life of the law has not been logic," the great Supreme Court justice Oliver Wendell Holmes Jr. once proclaimed, "it has been experience." Holmes' embrace of legal realism in a series of lectures before his judicial career challenged the legal formalists of the era who saw law as nothing more than "syllogisms" or "the axioms and corollaries of a book of mathematics.".
      The formalists of the 19th century stunted the development of the law by preventing workers or others from joining together to protect their interests or recover for the often deadly injuries of the industrial era. Today, a new generation of legal formalists are defying Holmes' practical wisdom by looking not to experience or even to logic, but to what they believe can be discerned as the "original meaning" of the Framers who wrote the U.S. Constitution some 225 years ago.
      Originalists promise in part that originalism can yield definite answers to hard legal issues and thus force judges to decide cases solely on the basis of law instead of their personal views. But the promise is an illusion, as seen in the dueling opinions of the two originalist justices Clarence Thomas and Neil Gorsuch in the Supreme Court's closely divided decision last week [April 17] in an important immigration law case.
      Thomas and Gorsuch clashed on the question of whether the Due Process Clause authorizes courts to strike down laws as unconstitutional on account of vagueness. The two justices came out on opposite sides of the 5-4 decision in Sessions v. Dimaya, with Gorsuch joining the four liberal justices in ruling in favor of the immigrant in the case. Thomas joined with three other conservatives in the main dissent and wrote a separate, history-based dissent for himself alone.
      Thomas and Gorsuch disagreed about the significance of old court decisions dealing with vague laws from 18th century England and 18th and 19th century America. The debate was worthy of an advanced seminar in legal history, but for Filipino immigrant James Dimaya the stakes were anything but academic.
      Dimaya, who immigrated legally to the United States at age 13 in 1992, was facing deportation because of two burglary convictions a decade ago in his adopted home in the San Francisco Bay area. The government moved to deport him under a provision in immigration law that mandates removal for anyone convicted of a "crime of violence." The provision defines that term as a "felony . . . that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."
      Three years ago, the Supreme Court ruled a similarly phrased provision in the federal Armed Career Criminal Act (ACCA) as unconstitutional under the so-called void-for-vagueness doctrine. Thomas agreed with the result in Johnson v. United States (2015), but in a separate opinion he called the void-for-vagueness doctrine inconsistent with the original meaning of the Bill of Rights' Due Process Clause..
      In the new case, Gorsuch noted that none of the other justices had responded to Thomas's view and took on the task himself. Reviewing the cases, Gorsuch concluded that void for vagueness "serves as a faithful expression of ancient due process and separation of powers principles . . . ." Thomas reiterated his "doubts about whether the vagueness doctrine can be squared with the original meaning of the Due Process Clause."
      Paradoxically, Thomas and Gorsuch both favorably cited a 19th century decision by Supreme Court Justice Bushrod Washington as evidence for their opposing views. Presiding as circuit justice in a Pennsylvania case, Washington found a federal law prohibiting seamen from making a "revolt" too vague to allow the government's case to go to the jury.
      Commenting on the two opinions, Evan Bernick, a lecturer at Georgetown Law School and a fellow with the school's originalist Center on the Constitution, sees "not a lot of difference" between Thomas and Gorsuch. Thomas, he explains, would apply vagueness doctrine "on a retail basis" — one case at a time — while Gorsuch would strike down a vague law in its entirety as serving the original purpose of the Due Process Clause.
      Eric Segall, a law professor at Georgia State University and a sometime critic of originalism, sees the difference between the two justices as an example of the difference between an "old" originalism that emphasized judicial deference and a "new" originalism better disposed to so-called "judicial engagement." The shift, in Segall's view, shows that originalism has become "a political symbol" more than a legal methodology. "Once you say no deference," he explains, "given the indeterminacy of history, originalism will not be able to limit judicial choices."
      Bernick and other originalists, such as Case Western Reserve law professor Jonathan Adler, reject the criticism. "No method of interpretation is entirely determinate," Adler replies. Originalism constrains the range of outcomes in constitutional cases, he argues, "but it does not reduce every single case to a single permissible outcome." Bernick similarly views originalism as "marginally more discretion-reducing" than other methods of constitutional interpretation.
      Originalists achieved their biggest victory to date in the Second Amendment gun-rights decision in Heller (2008), written by the godfather of originalism, the late justice Antonin Scalia. Writing for the four dissenters, Justice John Paul Stevens argued just as strongly as Scalia that original meaning pointed the other way. "History is always going to be unclear," Segall contends. With Gorsuch proudly identifying himself as a "committed originalist," legal history may figure prominently in future cases too, but Court watchers should not expect history to provide definite answers.

Saturday, April 14, 2018

Trump Worse Than Nixon for Rule of Law?

      President Richard Nixon's decision to fire Watergate prosecutor Archibald Cox came like a bolt out of the blue on what was otherwise a slow-news, football weekend in October 1973. In the pre-cable news era, all three major television networks interrupted their programming to report that Cox had been fired by the previously unknown solicitor general, Robert Bork, after Attorney General Elliott Richardson and his deputy William Ruckelshaus had resigned rather than carry out Nixon's justice-obstructing order.
      Recalling the episode now 45 years later, Nick Ackerman, one of Cox's assistants, recalled on MSNBC that he left the office that night with several investigative files to safeguard them from possible disappearance or destruction. The precaution proved to be unnecessary. The reaction to the "Saturday Night Massacre" was so instantaneous and so intense that Nixon was forced to acquiesce in the appointment of a new Watergate prosecutor, Leon Jaworski.
      With rampant speculation that President Trump is now on the verge of removing special counsel Robert Mueller from the Russiagate investigation, Nixon is now being recalled, whatever his other faults, aa a believer of sorts in the rule of law. By comparison, Trump appears in this recollection to be a greater threat to the rule of law: a president who might pull out all stops — legal or not, constitutional or not — to thwart the investigation into the Trump campaign's interactions with election-meddling Russian agents.
      Nixon likely had legal authority to remove Cox, his independence at the time unprotected by statute or Justice Department regulation. Richardson and Ruckelshaus refused Nixon's order on the ground that each had promised the Senate in their confirmation hearings to safeguard Cox's position. Today, by contrast, Mueller is protected from removal by a Justice Department regulation that allows Mueller to be removed only "by the personal action of the Attorney General" for "misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause."
      With Attorney General Jeff Sessions recused from the Russia investigation, the removal power lies instead with the deputy attorney general, Rod Rosenstein, who has publicly defended Mueller's conduct in office up till now. Trump's supporters and surrogates envision indirect steps to oust Mueller — for example, by firing Rosenstein and relying on Solicitor General Noel Francisco to be as compliant to the president's wishes as Bork was 45 years ago. As another alternative, Trump could order Sessions or Rosenstein to rescind the regulation or perhaps use his supposed unitary executive power to nullify the regulation himself.
      The speculation about Mueller's possible removal intensified after the Mueller-approved FBI raid on the New York City offices of Trump's personal attorney, Michael Cohenr, on Monday (Aprl 9), and intensified further after NBC News' report on Thursday (April 12) that Mueller's office was said to be ready to report four findings regarding Trump and obstruction of justice.
      Trump was widely reported to be beyond boiling-mad after news of the raid on Cohen's office broke on Monday morning. He interrupted a meeting of his national security advisors for an extended tirade against Mueller, for his "witch hunt," and Sessions for his "big mistake" to recuse himself from overseeing the Russia investigation. Trump said that FBI agents had "broken into" Cohen's office; that was his description of the lawful execution of a no-knock search warrant signed by a federal magistrate judge in New York.
      Trump surrogates later described the raid as "Gestapo-like," but Cohen himself said FBI agents acted professionally throughout. The raid, actually carried out by the U.S. attorney's office for the southern district of New York, apparently sought information about Cohen's possible involvement in paying "hush money" to porn star Stormy Daniels or other women to quash accusations of Trump's sexual infidelities in the run-up to the November election. Rep. Chris Collins, a New York Republican who was the first in Congress to endorse Trump, was among those who described the raid as going beyond Mueller's authority. In fact, the letter appointing Mueller gives  him authority to take on other matters discovered in the course of the Russia investigation.
      The week ended with NBC's potentially explosive report that Mueller was prepared to give Congress a bill of particulars about Trump's possible obstruction of justice. The report was described as including four findings regarding Trump's firing of FBI director James Comey, his role in crafting the misleading June 2016 statement concerning the Trump Tower meeting with Russian reprsentatives; the White House's discussion of possibly pardoning witnesses in the Russiagate investigation, and his attempt to pressure Sessions into withdrawing his recusal from the case.
      With the accusatory report possibly imminent, Harvard law professor Noah Feldman imagined the hyper-mercurial Trump ready to do almost anything to raise the drawbridges around the White House. "What if Donald Trump tries to fire Robert Mueller — and fails?" Feldman asked in a column forBloomberg. The result, he went on to warn, "could be a constitutional crisis" with neither of them willing to back down and the courts unwilling to intervene for a definitive resolution..
      Nixon "allowed the Constitution to prevail," MSNBC's Lawrence O'Donnell recalled on his program last week. "Donald Trump is no Richard Nixon," he went on, in an oddly unfavorable comparison. The political landscape is also different from 1973: Nixon had few defenders on the Cox firing. But Trump's base, and his Fox News chorus, likely would cheer him on in his defiance. The rule of law could wind up lying seriously wounded at his feet.

Sunday, April 8, 2018

Trump's Not-So-Great Retreats on Foreign Policy

      President Trump used his first overseas trip in May 2017 with its initial stop in Riyadh, Saudi Arabia, to signal a sharp break from the Obama administration policies aimed at using U.S. influence to promote human rights in the Arab world. Trump evidently relished the lavish ceremony his Saudi hosts put on for him and reciprocated by sidestepping any mention of such issues as the kingdom's repressive policies on political dissent. "We are not here to lecture," Trump declared. "We are not here to tell people how to live . . . "
      Trump also gave a shoot-out to the other major U.S. ally in the region by predicting improved relations with Bahrain in place of the strains created by Obama-era criticisms of the Sunni government's repression of its Shiite majority population. Seemingly emboldened, the Bahraini government followed only two days later with a raid on the home of the leader of the Shiite opposition that left five protesters dead and more than 50 arrested..
      The sequence of events is emblematic of what a leading human rights advocate calls the "complete sidelining" of human rights in U.S. foreign policy under Trump. Writing in the current issue of Foreign Affairs, Sarah Margon, Washington director of Human Rights Watch, goes so far as to call the Trump administration —  "and the president himself" —  "one of the greatest threats to human rights in decades."
     Margon notes in the article that Trump has not only backed away from criticizing foreign governments with spotty records on human rights but has gone further by actively encouraging repressive policies. One month before the overseas trip, Trump congratulated Turkish president Recep Tayyip Erdogan for winning a disputed referendum that fortified his authoritarian rule. In the same month, he called Philippine President Rodrigo Duterte to congratulate him on his "unbelievable job on the drug problem" — a brutal crackdown of extrajudicial killings that has cost more than 12,000 lives.
      With the United States withdrawing from the field, human rights leadership is now passing to other countries, according to Margon. She cites two encouraging events from recent meetings at the U.N. Human Rights Council in Geneva. The Netherlands helped win approval of an independent investigation of the Saudi-led campaign in Yemen despite opposition not only from Saudi Arabia but also from the United States itself. Iceland took the lead in collecting support from 38 other countries for a joint statement condemning Duterte's war on drugs.
      Margon professes encouragement from the events. "We've seen some movement on issues without American leadership, which is important," she says. With Trump in power, "ad hoc coalitions of like-minded countries will need to become the norm," she writes in the article.
      Margon was one of two authors to appear at a Council on Foreign Relations event in Washington last week [April 6] to launch the March/April issue of Foreign Affairs, with its provocatively titled collection of articles, "Letting Go: Trump, America, and the World." Human rights is not the only and perhaps not even the most important area of retreat that Trump is leading on U.S. foreign policy.
      In his article, Jake Sullivan, a senior fellow at the Carnegie Endowment for International Peace, laments Trump's backing away from what he calls "the post-World War II system of norms, institutions, and partnership that has helped manage disputes, mobilize action, and govern international conduct." Sullivan, who worked in Hillary Clinton's campaign after having served previously in the State Department and in Vice President Joe Biden's office, says these multilateral arrangements have been more successful, even in recent years, than detractors acknowledge.
      As examples, Sullivan cites the mostly successful efforts to contain nuclear proliferation and to recover from the 2008 financial crisis and worldwide recession. He counts as well the Paris climate agreement despite Trump's withdrawal from the accord. "All of these problems require some mode of international cooperation," Sullivan remarked from the stage. The United States, he added, "has been" and "has to be" the catalyst.
      Sullivan recalled in his remarks that he came face to face with one of the detractors while out on the 2016 campaign trail in Ohio. Speaking in Clinton's behalf, Sullivan spoke warmly of her support for "the liberal international order." His remarks finished, one woman in the audience approached him to say: "I don't know what that is, but I don't like any of those three words."
      Like Trump, that Ohio voter apparently sees the post-World War II order that won the Cold War and embodied the American century as more burden than benefit for the American people. Sullivan aptly remarked, on the other hand, that these systems "have served to the United States' advantage."
      Trump is a threat, in large part because of his basic misunderstanding of foreign policy in all its particulars — from trade to security. The threatened pullout from the North American Free Trade Agreement, Sullivan warned, would be "a huge self-inflicted wound." Even if some European countries have fallen short in their NATO obligations, several of them have provided critical support for U.S. policies not only in Europe, but also in, for example, Afghanistan and Iraq.
      In the end, Sullivan thinks the international order sufficiently resilient to withstand one four-year term for Trump, though not necessarily a second. Margon too expects human rights to remain on the international agenda even with Trump's retreat. At this point, one can say no more than this: Time will tell.

Saturday, March 31, 2018

To Impeach Thomas,Too Little, Too Late

      Clarence Thomas should never have been confirmed as a Supreme Court justice. His professional qualifications for the lifetime post were paper thin as of 1991, with only a little over a year on the federal appeals court for the District of Columbia. His temperament as displayed on the bench, in his eight years at the Equal Employment Opportunity Commission (EEOC), and in public speeches and remarks was blatantly injudicious.
      Thomas very likely committed perjury while under oath before the Senate Judiciary Committee when he denied the accusations of sexual harassment made by law professor Anita Hill. Newly uncovered evidence tends to substantiate Hill's accusations and thus buttress the suspicion that Thomas's Senate confirmation by the historically narrow margin of 52-48 was ineradicably tainted. Thomas also dissembled before the committee by responding to persistent questioning that he had never "debated" abortion. That evasion was unmasked by his dissenting vote in his very first term to overturn Roe v. Wade.
      With this new evidence, journalist Jill Abramson, co-author with Jane Mayer of a critical account of the confirmation in Strange Justice, argued in an article in New York magazine in mid-February that it is "time to raise the possibility of impeachment" to examine the "overwhelming evidence" of Thomas's past perjury and post-confirmation accusations of sexual harassment. The call has gone nowhere in the Republican-controlled Congress, which views control of the Supreme Court as its signature accomplishment of the post-Scalia era..
      The evidence against Thomas, even if believed, is too little and too late, however, to warrant the extraordinary step of impeaching a Supreme Court justice. Thomas may not deserve his seat on the Supreme Court, but the country and the Court itself cannot withstand another traumatic episode in the politicization of the nation's last, best hope for equal justice under law.
      History has judged the only impeachment of a Supreme Court justice ever to have been a mistake, however unworthy the justice in question. The early 19th century justice Samuel Chase was an openly partisan Federalist when riding circuit: he openly advocated prosecuting political opponents in what was then called the Republican Party, but he survived impeachment in the Republican-controlled Senate in 1805. President Thomas Jefferson fretted afterward that impeachment was a toothless weapon against entrenched Federalist judges, but history has deemed Chase's acquittal to have helped establish an important safeguard for the independence of the judiciary.
      Impeachment has been of some use, however, in removing corrupt or dishonest judges from lower federal courts, according to a compilation by the Congressional Research service. Among dozens of investigations, 14 lower federal court judges besides Chase have been impeached, including five since 1986. In all, eight have been removed after Senate convictions and four others resigned with impeachment proceedings pending. As Abramson notes, three of those removed in the modern era faced charges for lying: two for perjury (Alcee Hastings and Walter Nixon, both in 1989) and the third for false financial disclosures (Thomas Porteous, in 2010).
      The post-confirmation allegation of sexual harassment by Thomas surfaced in October 2016 from an Alaska lawyer, Moira Smith, who was prompted to go public with a 17-year-old episode after the controversy over Donald Trump's Hollywood Access tape. In her account, as reported by Marcia Coyle in National Law Journal, Smith said that she had felt honored to attend a social dinner with Thomas in 1999 and then embarrassed to have been groped twice by the justice and pressured to sit next to him for the dinner. Thomas denied the accusation.
      In her magazine article, Abramson, who covered the Thomas confirmation for The Wall Street Journal and then served in senior management positions at The New York Times for 17 years, recapitulates the evidence that was available back in 1991 but never formally presented in a public hearing. Joe Biden, then the chairman of the Senate Judiciary Committee, made the fateful — and now apologized for — decision not to call additional witnesses after Hill's dramatic testimony and Thomas's indignant denials.
      Three of those witnesses, including Angela Wright Stanton, a former EEOC staffer like Hill, would have provided similar depictions of Thomas's sexually aggressive conduct while chairman of the agency. Three others would have testified about Thomas's collection of Playboy magazines and his interest in porn videos. It is unknowable whether the testimony would have changed the minds of some in the public or in the Senate. But Stanton has now written an op-ed for Huffington Post that echoes Abramson's call to consider impeachment against Thomas.
      Two other women have belatedly accused Thomas of sexual harassment. Lillian McEwen, who dated Thomas around the same time as Hill's tenure at the EEOC, described a pattern of sexual aggressiveness to Michael Fletcher, co-author with his then Washington Post colleague Kevin Merida of a critical biography of Thomas in 2007. In addition, Abramson reports that an attorney, Karen Walker, has quoted a former BNA reporter, Nancy Montwieler, as recounting sexual harassment by Thomas while she covered the EEOC. But Montwieler refused to confirm the account when Abramson tracked her down in February and then sent Abramson an email denying having made any accusation.
      In short, the new evidence for present-day impeachment is weak, far too weak to expose the Supreme Court to what would inevitably be an intensely partisan proceeding. History does not allow do-overs. The Moving Finger writes, the poet reminds us, and having writ, moves on.

Sunday, March 25, 2018

Scalia's Legacy: The Abiding Contradictions

      Antonin Scalia knew how to dish it out, but he wasn't so good at taking it. Thus, Supreme Court watchers can be sure that the late justice would have nothing good to say about the myth-puncturing critique of Scalia's career that law professor Richard Hasen dishes out in his new book The Justice of Contradictions.
      From his earliest days after joining the Court in 1986, Scalia proclaimed himself to be the apostle of judicial restraint by virtue of his two signature jurisprudential theories: textualism and originalism. In Scalia's telling, a scrupulously scientific focus on statutory text and original constitutional meaning leaves judges, even Supreme Court justices, nothing to do but apply established canons of construction to provide the correct answer to even the most baffling of legal issues.
      Hasen, professor of law and political science at the University of California-Irvine, rightly notes the "hubris" in Scalia's espousal of textualism and originalism. With a quarter-century of teaching law to his credit, Hasen proceeds to deflate Scalia's puffery by proving with clear and convincing evidence that Scalia was simply wrong in claiming for himself to have been consistent in applying his touted techniques.
      Going back to Scalia's earliest years on the Supreme Court, Hasen finds a Scalia opinion in a decision that opens by declaring that a "literal" interpretation of the statute at issue would lead to "an absurd, and perhaps unconstitutional, result." And so, in a concurring in the judgment opinion in Green v. Bock Laundry Machine Co. (1989),  he reads the word "defendant" in a federal evidentiary rule to include "civil plaintiffs" as well.
      Hasen contrasts this willingness to save the rule with Scalia's "relentlessly literal reading" of part of President Obama's Affordable Care Act a quarter-century later in his dissenting opinion in King v. Burwell (2015). The majority sensibly read an inartfully drafted provision to authorize subsidies for individuals buying health insurance not only from the exchanges "established by a state," but also those established by the federal government in states that refused to participate. Scalia wrote a scorching dissent that, had he prevailed, would have doomed Obamacare: an absurd result unless, like Scalia, one wanted the project to fail.
      Scalia's adventures in constitutional originalism were equally susceptible to flexible adaptation to his policy views in Hasen's telling. To establish an individual right to possession of firearms in District of Columbia v. Heller (2008), Scalia scrubbed the Second Amendment of the prefatory clause tying the "right to keep and bear arms" to "a well-regulated militia." He equally had to ignore the pre-Bill of Rights history of colonial and state laws limiting personal possession of firearms.
      Original meaning also carried no weight with Scalia in his interpretation of the Fourteenth Amendment's Equal Protection Clause to prohibit any preferential treatment for disadvantaged minorities in modern-day affirmative action policies. One of Scalia's law clerks noted to the justice that the post-Civil War Congress that approved the Fourteenth Amendment also enacted laws specifically aimed at benefiting the newly emancipated African Americans. The clerk suggested Scalia needed to explain the discrepancy, but the justice never did.
      More than any justice in history, Scalia engaged in sharp, personal criticism of those who disagreed with him, even his Supreme Court colleagues. Yet, as Hasen notes, Scalia "bristled" at criticism and was dismissive of critics. He famously rebuffed any re-examination of the blatant partisanship in Bush v. Gore (2000) with blunt advice: "Get over it," he said. Hasen also recounts Scalia's non-response to a query from the noted constitutional law scholar Jeffrey Rosen on how to reconcile his originalism with the school desegregation decision in Brown v. Board of Education (1954). "No theory is perfect," Scalia answered.
      Scalia may have accepted Brown, but he refused to bow to other constitutional landmarks. Five decades after the landmark privacy decision in Griswold v. Connecticut (1965), Scalia told an interviewer flatly that there is no right to privacy; Griswold, he said, was simply "wrong." Nor did Scalia ever accept that the Fourteenth Amendment applied to sex discrimination: the signature legacy of Ruth Bader Ginsburg's pre-Supreme Court career. And he fulminated in two of the landmark gay rights decisions against what he insisted on calling "the homosexual agenda" despite ignoring the suggestion from one of his law clerks that the phrasing was gratuitously incendiary.
      Hasen acknowledges that Scalia was "full of charm," well liked from all accounts by his fellow justices, even those on the opposite side such as Ginsburg. But his book reminds Court watchers of the wretched state of equal justice under law that Scalia would have left as his legacy had his views prevailed. Women would be powerless against official sex discrimination. Gay men and lesbians could be prosecuted for intimate relationships. Corporations could give unlimited amounts of money directly to candidates for federal office.
      Apart from his questionable jurisprudence, Hasen is perhaps most critical of Scalia for single-handedly coarsening judicial discourse at the Court and in law world generally. Sometimes, the sneering may have seemed light-hearted, as when Scalia accused the majority in King v. Burwell of "jiggery-pokery." But often his sneering had a sharper edge. Scalia's rhetoric served to make the Court "a more politicized, and perhaps more political, institution," Hasen writes. In the end, Hasen concludes, Scalia "helped to delegitimize the institution he was trying to save." His legacy, in short: an abiding contradiction.

Sunday, March 18, 2018

Time for Court to Stop Abuse of First Amendment

      The Supreme Court will be asked on Tuesday [March 20], in the name of the First Amendment, to nullify a California law requiring anti-abortion women's health clinics to tell women where they can obtain information about free or low-cost abortion services. The case, National Institute of Family and Life Advocates v. Becerra, represents the third time this term that political conservatives have urged justices committed to an originalist interpretation of the Constitution to find in the Free Speech Clause meanings that James Madison and the other Framers could never have intended or contemplated.
      The anti-abortion pregnancy resource centers represented by the trade association known by its initials as NIFLA are well within their First Amendment rights to try to dissuade "abortion-vulnerable women" from terminating their pregnancies. But it is an abuse of high order for them to invoke the First Amendment as an exemption from the kind of government-mandated disclosure well recognized in health care and countless other contexts.
      The California Reproductive FACT Act — FACT is an acronym for "Freedom, Accountability, Comprehensive Care, and Transparency — seeks to counter what critics of these so-called crisis pregnancy centers depict as their blatantly misleading practices. The law, enacted in 2015, requires centers that are licensed as medical clinics to post a notice about the availability of free or low-cost family planning services, complete with a telephone number of the local social services center. A second, narrower provision requires unlicensed centers to post a notice that they are not licensed and have no licensed medical provider on staff.
      The misleading tactics by these centers — they number more than 3,000 nationwide — have been well documented in investigative news stories and in a thorough report three years ago by the abortion-rights group NARAL Pro-Choice America. The billboards, public transit ads, and online advertising all convey to women — "pregnant and scared" — a welcoming environment that offers medical services and counseling to help them through a personal crisis.
      Instead, the women who visit these clinics are given misleading information about the risks of abortion and subjected to anti-abortion moralizing. Autumn Burke, the California legislator who cosponsored the bill, recalled to Newsweek that she started working on the issue after a chance visit to one of the centers in downtown Los Angeles. She spotted the clinic while on an unrelated errand and picked up an informational pamphlet from the center that repeated the discredited falsehood that abortions are linked to breast cancer.
      The NARAL report, based on undercover investigations of centers in 10 states across the nation, found that counselors at what NARAL calls "fake health centers" misinform women that they will be unable to bear children in the future if they have an abortion. They also counsel women to postpone a decision on whether to have an abortion — contradicting the accurate medical advice to terminate a pregnancy as early as possible to avoid possible complications.
      NIFLA calls the disclosure for licensed clinics a "compelled abortion referral" and insists that it cannot be constitutional to require a clinic opposed to abortion to provide that information to patients. It calls the other provision a "negative disclaimer" and finds it equally unconstitutional to require centers to disparage the services they offer. The arguments do not hold water. Mandatory disclosure laws often require commercial businesses to tell customers about availability of information elsewhere and often require negative disclosures about their products or services — for example, the building energy use now required for real estate transactions in many jurisdictions.
      In its amicus brief defending the California law, the progressive Constitutional Accountability Center rightly argues that the measure promotes First Amendment values by ensuring that consumers have access to accurate information about their rights to state-funded care and how to access these benefits. A decision to strike down the law could have ramifications for disclosure laws generally, the brief warns.
      Moreover, the anti-abortion lobby is guilty of hypocrisy of the highest order in claiming a constitutional harm from government-compelled speech. Anti-abortion forces are responsible for what the Guttmacher Institute counts as 29 states that require women's health clinics to provide various bits of false or misleading information to women planning to terminate a pregnancy. Most commonly, two-thirds of the states require women be warned of future fertility issues; among other warnings, 13 states require women be told that a fetus feels pain after 20 weeks, and smaller numbers require warnings about breast cancer or depression. Not true: any of it.
      Political liberals who have long cherished freedom of speech might welcome the legal and political conservatives who now embrace free speech so enthusiastically but for their twisting of the First Amendment for political ends as seen in two high-profile cases already argued this term. In Masterpiece Cakeshop, the justices have been asked to give a commercial baker a First Amendment exemption to discriminate against a same-sex couple ordering a wedding cake. In Janus, a disaffected state employee wants a free-speech exemption from a mandatory fee to the public employee union that represents him on workplace issues.
      Principled conservatives should see these for the phony free-speech claims that they are. But the arguments in the two earlier cases point tentatively to rulings by the conservative majority that exploit rather than enforce the First Amendment. A genuinely free-speech Court would have more respect for the First Amendment than to allow such abuse.

Sunday, March 11, 2018

High Court Rules Out Bail in Immigration Cases

      The Supreme Court has given the government free rein to jail thousands of immigrants in substandard detention facilities for months on end with no chance whatsoever to appear before a judge to try to be released on bail.
      In different times, news of the Court's due process-denying decision in Jennings v. Rodriguez would have gotten wide attention on front pages and home pages of major newspapers. But, as the Washington Post columnist Ruth Marcus aptly pointed out in noting the back-page coverage of the ruling,  "the Trump administration's soap opera occupies so much media attention that other matters of enormous importance go unremarked."
      The 5-3 decision on Feb. 27 pitted the Court's five Republican-appointed conservatives, including the moderate justice Anthony M. Kennedy, against three Democratic-appointed liberals, with one of their number — Elena Kagan — recused because of her previous role as U.S. solicitor general. The decision says less about partisan politics, however, than about the divide on the Court between the sterile textualism of the conservatives and the liberal justices' whole-law approach to reading statutes.
      The federal immigration statutes at issue in the case provide in stark language that certain aliens "shall be detained" at the border upon seeking admission into the United States, including those applying for asylum as they flee persecution in their home countries. A separate provision provides that aliens already in the United States "shall be detained" as the government seeks to deport them based on prior criminal convictions or terrorism-related connections.
      Writing for the majority, Justice Samuel A. Alito Jr. needed to know nothing more. The laws say nothing about bail hearings: end of case. But the federal appeals court in California invoked a well-recognized doctrine known as "constitutional avoidance" in concluding that the laws would be unconstitutional unless they were construed to provide for bail hearings.
      For the liberal dissenters, Justice Stephen G. Breyer felt so strongly about the case that he exercised the occasionally invoked prerogative to summarize his dissent from the bench. His 33-page written opinion, longer than Alito's for the majority, details the humanitarian wreckage and legal injury that the decision inflicts.
      The right to bail, Breyer emphasized, has been part of Anglo-American law ever since the 18th century English jurist Blackstone recognized the opportunity for bail "in any case whatsoever." The Bill of Rights prohibits "excessive bail" in the Eighth Amendment: no bail whatsoever seems worse. Breyer also stressed that federal and state law uniformly allow bail for criminal defendants except in limited circumstances. No evidence suggests that the risk of flight is greater for aliens trying to enter the country than for criminal suspects,  Breyer remarked.
      Most of the aliens held at the border have done nothing wrong, Breyer explained. The asylum applicants — they numbered 7,500 in 2015 —  have already provided preliminary information to support their claim to a U.S. consular official in their home countries. Two-thirds of them eventually receive asylum, but only after detentions in facilities within the United States that can last a year or even, in one case, two-and-a-half years.
      Others detained at the border are held in limbo because they are neither admissible or inadmissible without further investigation. Breyer had no data on their numbers or the lengths of their detentions, but one can assume that they too lingered and languished in what Breyer called "inappropriately poor" conditions as the immigration system's wheels ground slowly.
      The third group in the class action consisted of immigrants living in the United States facing deportation because of criminal convictions or possible ties to terrorism. The ex-offenders, Breyer explained, had already served their sentences: more than half of them for less than six months. Many of them are found to be deportable, but 40 percent of them are eventually granted relief from removal. In the meantime, however, they too are detained for periods that range up to and past a full year and, in one case, for nearly four years.
      None of these disquieting details can be found in the majority opinion. In Scaliaesque fashion, the five justices see nothing beyond a few words in the statutory text: "shall be detained." They look for words, not meaning; law, not justice. Congress, quite simply, could not have meant to deny the chance for bail to immigrants held for months or even years with no chance whatsoever to make their case for release before a judge required to give their plea due consideration.
      A statute with that effect offends the words of the Constitution--for example, the Fifth Amendment's prohibition against deprivations of liberty without due process of law. Rather than read the statute with the tunnel vision of a lexicographer, Breyer and the other dissenters would read it as requiring periodic bail hearings "without doing violence to the statutory language or to the provisions' basic purposes."
      Inside this clouded decision, however, there is a silver lining. The plaintiffs' constitutional claims have not yet been decided. The federal appeals court skirted the question by construing the statutes to avoid finding them unconstitutional.
      The majority express no view on the issue in sending the case back to the Ninth Circuit for a ruling. Breyer and his colleagues were ready to decide the issue now. Instead, Breyer closes by citing the Declaration of Independence's "unalienable" right to liberty in hoping for an eventual ruling to grant "the basic right to bail" for thousands of aliens yearning for nothing more than to breathe free.

Sunday, March 4, 2018

No Minds Changed in Union Fees Case

      If Supreme Court arguments were scored in the manner of high school debate tournaments, liberal justices would be credited with a hands-down win in last week's showdown on the fees that public employee unions charge to non-members for representing them in labor negotiations and workplace issues.
      Through active questioning from the bench during the hour-long session on Janus v. AFSCME [Feb. 26], the liberal justices demonstrated the disquieting consequences of the conservatives' apparent determination to overrule a 40-year-old precedent important to the financing of public employee unions. That decision, Abood v. Detroit Board of Education (1977), allows public employee unions, if permitted by state law, to charge non-members their "fair share" of the union's costs in representing members and non-members alike on work-related matters.
      The liberal justices showed that overruling Abood would cast doubt on analogous decisions in several other areas and could unsettle labor contracts negotiated by governments in 23 states and hundreds of municipalities. And they also laid bare the real purpose behind the case: not so much to vindicate the claimed free speech interests of the dissident Illinois state employee Mark Janus, but to diminish the resources for public employee unions and reduce their political influence.
      The conservative justices were somewhat restrained during the argument, possibly confident of the outcome. The Court divided 4-4 two years ago on whether to overrule Abood, with one seat vacant after Justice Antonin Scalia's death. The individual votes were not announced, but the justices undoubtedly split along conservative-liberal lines. Now with the conservative justice Neil Gorsuch filling the ninth seat, the conservatives perhaps saw no need to make their case from the bench.
      The senior liberal justice Ruth Bader Ginsburg opened the questioning by asking Janus's lawyer, William Messenger of the anti-union National Right to Work Foundation, about the potential domino effect of overruling Abood. "If you are right," Ginsburg asked, "what about three things...?" She listed student activity fees, mandatory bar association payments, and agency shop fees in the private sector: all of them upheld in Supreme Court precedents.
      Messenger's answer served to underline the hoped-for judicial activism at the heart of the case. The government had legitimate interests in requiring all students to pay into an activity fund and in requiring all lawyers to contribute to the regulation of the legal profession. He left unspoken the implicit argument to dismiss as insubstantial the government's interests in having strong unions as negotiating partners to promote employee morale and labor-management relations.
      Sotomayor reminded him on the point: "I'm sorry," she said, interrupting. "I thought that we had always recognized that the government as employer had a compelling interest in regulating its employment decisions."
      Kagan joined next to note that 23 states and "thousands" of municipalities have negotiated contracts with labor employee unions under the Abood framework. "I don't think that we have ever overruled a case where reliance interests are remotely as strong as they are here," Justice Elena Kagan told Messenger. "The contracts will survive," Messenger reassured Kagan, hardly reassuring from a fierce critic of unions after mischaracterizing the issue one sentence earlier as all about "compulsory unionism."
      To be clear, Janus claims a free-speech issue on the ground that the union's negotiations with the government employer are all matters of public concern, not private employer-employee relations. Kagan got the U.S. solicitor general, Noel Francisco, to agree to that proposition even though it could bedevil the federal government and all other government employers in disciplining public employees.
      The free-speech argument is debunked by no less a First Amendment expert than UCLA law professor Eugene Volokh. "There is no First Amendment right not to subsidize speech one disagrees with," Volokh wrote in a friend-of-the-court brief on the union's side joined by another politically conservative academic, the University of Chicago law professor William Baude. They opined that Abood actually went too far by giving dissident non-union members the right to opt out of paying for unions' political activities beyond the collective bargaining role.
      However tenuous the First Amendment arguments, the conservative justices were all in. "When you compel somebody to speak, don't you infringe that person's dignity and conscience?" Justice Samuel A. Alito Jr. asked of the Illinois solicitor general, David Franklin, defending the law. Franklin answered firmly. "What we're talking about here is a compelled payment of a fee," Franklin said. "So it's one step removed from compelled speech."
      Other conservatives seemed to be lying low. Chief Justice John G. Roberts Jr. had only a few question; Gorsuch, with the decisive vote, had none at all. And it fell to the ordinarily mild-mannered justice Anthony M. Kennedy to make the bluntest attack on public unions. He mocked Franklin's argument by suggesting that the government merely wanted the union to "be a partner with you in advocating for a greater size workforce, against privatization, against merit promotion, for teacher tenure, for higher wages, for massive government, for increasing bonded indebtedness, for increasing taxes?" Note to Kennedy: GM and UAW agree on the need for strong automobile industry.
      By the hour's end, no minds had been changed: Justice Stephen G. Breyer's plaintive plea for a compromise of some sort went uncommented on by the conservatives. Outside, anti-union demonstrators carried placards pleading, "Unrig the system." In this case, however, the fix is in: decision in June, but no suspense about the outcome.

Sunday, February 25, 2018

"Power, Not Reason" on Fees in Public Unions Case?

      Justice Thurgood Marshall let out an anguished wail in 1991 when the Supreme Court overruled a decision barely four years old to prohibit the use of victim impact statements in death penalty trials. "Power, not reason, is the new currency of this Court's decisionmaking," Marshall wrote in his dissent in Payne v. Tennessee (1991).
      Marshall had been part of the 5-4 majority in the earlier decision, Booth v. Maryland (1987), that found an unacceptable risk of prejudice in allowing surviving family members to air their opinions in the sentencing phase of a capital murder trial. With two new justices four terms later, the Court had specifically asked lawyers to address the question of whether to reconsider the still new precedent.
      Marshall, in his final opinion before he announced his retirement the same day, was especially sharp in criticizing his colleagues for disregarding stare decisis — the legal doctrine that calls for following rather than overturning prior decisions. "Neither the law nor the facts supporting Booth . . . underwent any change in the last four years," Marshall wrote of the new 6-3 decision. "Only the personnel of this Court did."
      The Court confronts a similar situation on Monday [Feb. 26] as a fortified bloc of conservative justices prepare to jettison a 40-year-old precedent important to public employee unions for no good reason except their raw power to do it. Conservative justices with little regard for organized labor are set to deal a body blow to the financing of public sector unions. Their anticipated decision will eliminate public employee unions' ability to require non-union members to pay their "fair share" of the costs of representing them in collective bargaining and other workplace issues.
      The precedent at issue, Abood v. Detroit Board of Education (1977), has rankled anti-union forces for decades despite the protection that the decision bestowed on dissident non-union teachers in the instant case. Led by Justice Samuel A. Alito Jr., the Roberts Court has taken pot shots at the decision in three cases over the past six years and now appears ready to overturn it with Justice Neil Gorsuch expected to use the stolen ninth seat to cast the decisive fifth vote.
      In the first of those decisions, Alito dumped on Abood as "an anomaly" without recognizing that it established for public sector unions the same legal framework that applies to unionized companies in the private sector. Abood dealt with what economists call the "free rider" problem: the natural tendency for someone to avoid paying if possible for some publicly available benefit or service of some sort.
      Federal labor law requires that a union, once certified by a majority of workers in a democratic election, represent and advocate for the interests of all the workers even those who voted against or refuse to join the union. Workers cannot be required to join a union as dues-paying members, but non-union members can be required to pay a so-called agency shop fee to cover the union's costs in representing them along with union members.
      In Abood, a somewhat fractured Court crafted a compromise of sorts by limiting the state laws authorizing agency shop fees for public employee unions to some extent. To avoid a compelled-speech issue, the mandatory fees paid by non-union members could be used only for workplace issues, not for the union's political or lobbying activity. The non-union members could opt out of paying for those activities and claim a partial refund based on the percentage of the union's budget devoted to non-collective bargaining activities.
      A decade later, the Court's decision in Chicago Teachers Union v. Hudson (1986) regularized that limitation by requiring public employee unions to send members and non-members alike a notice about their right to opt out of paying that portion of the fees devoted to non-collective bargaining activities. The procedure entailed some difficult line-drawing to identify the political activities that objecting non-union members could avoid paying for, but overall the Hudson notice system proved to be workable.
      Back in 1991, Chief Justice William H. Rehnquist answered Marshall's dissent on victim-impact statements by stating the obvious that the doctrine of stare decisis "is not an inexorable command." Precedents are not sacrosanct, never to be overruled. If they were, Plessy v. Ferguson would still be on the books and racial segregation still the law of the land. Even so, respect for precedent requires some special justification for overruling a prior decision — justification that Marshall found lacking in the Booth  to Payne sequence on victim impact statements.
      The plaintiffs in the new public sector union case, Janus v. AFSCME, have not carried the burden of showing that Abood is unworkable in the light of four decades of experience or unsound as a matter of legal doctrine. To reiterate: Abood protects objecting non-union teachers, for example, from being forced to pay for teachers' union lobbying or election campaigning.
      Nothing has changed in the past 40 years except the growing strength of anti-union forces who want to use the courts to undercut the laws enacted in nearly half the states to authorize public sector unions for the benefit of public employees and public sector labor-management relations. With a decision likely in June, expect a conservative majority to wrap themselves in a vision of the First Amendment that gives an invented constitutional right to free-riding government workers who take the benefits of union representation without paying for them.