Sunday, August 12, 2018

Time for State Courts to Lead on Rights?

      With the Supreme Court on the verge of a solid conservative majority,  the time is ripe to reconsider the role of state courts in recognizing and protecting individual rights. Now comes an unlikely messenger: Jeffrey Sutton, a federal appeals court judge and a regular featured speaker for the conservative Federalist Society.
      In his new book 51 Imperfect Solutions: States and the Making of American Constitutional Law (Oxford University Press), Sutton tells the untold story of the role that state courts and state constitutions have played through the years. He begins by noting that for the public and the legal community alike, all discussions of constitutional law typically begin and end with the Supreme Court of the United States. So too for litigators, he says: groups pressing new claims for constitutional rights file suits in federal courts, hardly ever in state courts.
      Sutton acknowledges that state courts have a generally deserved reputation for "relative underprotection of individual rights." But he notes that the rights now enshrined in the Bill of Rights originated in the state constitutions written between independence in 1776 and the ratification of the national Constitution in 1789. In addition, Sutton notes that at least seven state courts had assumed that power before the Framers met in Philadelphia in 1787.
      The modern history of constitutional law begins with the Warren Court's revolution in criminal procedure. The Court's series of decisions in the 1960s, such as Mapp, Gideon, and Miranda, required state criminal justice systems and courts to respect rather than ignore the rights specified in the Fourth, Fifth, and Sixth Amendments of the Bill of Rights.
      Sutton tells different stories from different periods in U.S. history. The National Court — his term for the one in Washington — has not always been a vanguard for individual rights. To the contrary, the Supreme Court at times has been either blind or slow in protecting individual rights or promoting equal justice. State courts have sometimes been better, sometimes not, but Sutton recites the twentieth century history of four legal issues where state courts helped provide a measure of justice after the Supreme Court's misdirection or default.
      In two of these stories, states got the issue right after the Supreme Court got it egregiously wrong. The first begins with the eugenics movement, the pseudoscientific theory for genetic superiority advanced by such progressives as Theodore Roosevelt and Woodrow Wilson early in the twentieth century. To his everlasting embarrassment, the great Supreme Court justice Oliver Wendell Holmes Jr. put his stamp of approval on the movement in the infamous decision, Buck v. Bell (1927), that upheld a Virginia law for involuntary sterilization of "feeble-minded" individuals.
      State legislatures more than state courts get credit for ending involuntary sterilizations by the 1980s, after more than 60,000 such procedures nationwide, according to Sutton's account. State legislatures repealed the sterilization laws and for good measure began writing the precursors of the federal law prohibiting discrimination against the disabled.
      The Supreme Court was again egregiously wrong in 1940 when it upheld a West Virginia law requiring public school students to salute the American flag while reciting the Pledge of Allegiance. The Court's decision in Minersville School District v. Gobitis (1940) is a black mark on the reputation of the great Supreme Court justice Felix Frankfurter, who flaunted his patriotism in rejecting the religious freedom plea by the Gobitas family, devout believers as Jehovah's Witnesses.
      The Court corrected itself  in the second of the Flag Salute Cases only three years later by upholding a similar religious freedom claim by Jehovah's Witnesses in West Virginia State Board of Education v. Barnette (1943). That story is told in constitutional law classes in law schools, but Sutton adds to the familiar account by noting that state courts had started to rule for Jehovah's Witnesses in such cases in the three-year interim.
      In the third of Sutton's stories, the Supreme Court blinked when urged in Wolf v. Colorado (1949) to enforce the Fourth Amendment by requiring states to exclude illegally obtained evidence. At the time, 16 states had their own exclusionary rules. The Court reversed itself in Mapp v. Ohio (1961); by then, nearly half the states had exclusionary rules.
      In the last of the stories, Sutton notes the Court's decision in San Antonio Independent School District v. Rodriguez (1973) that found no Equal Protection Clause requirement for equal school funding. In the decades since, state courts have moved in: ordering or catalyzing significant reforms to narrow funding disparities between rich school districts and the others.
      With his title, Sutton confounds the purpose listed in the Preamble to the Constitution: "to form a more perfect union." Better, he says, to have 51 imperfect solutions from state courts than one imperfect solution for the whole country from the National Court. The Supreme Court, he suggests, should stay its hand unless constitutional text and history are clear. State courts, he says, should be free to adapt individual rights to each state's particular history, culture, and geography.
      Sutton refuses to take sides on specific issues. So he does not offer to give up the Heller decision on the Second Amendment and leave gun rights up to individual states. On same-sex marriage, however, he views the interplay between state and federal courts as pointing, perhaps, to the right answer — despite his contrary position in the cases that actually reached the Supreme Court under the title Obergefell v. Hodges.
      Sutton emphasizes the role that Massachusetts' highest court played with its decision in Goodridge v. Dep't of Public Health (2003) to recognize marriage equality for same-sex couples under the Bay State's constitution. Without Goodridge, he says, there would have been no Obergefell. For rights advocates, Sutton suggests, look to the states: sage advice surely for those on the political and legal left as the Court prepares, it seems, to take a sharp turn to the right.

Sunday, August 5, 2018

On Kavanaugh, Republicans Neck-Deep in Hypocrisy

    Senate Republicans are neck-deep in political hypocrisy as they move toward confirmation hearings for Supreme Court nominee Brett Kavanaugh without a shred of bipartisanship or principle. With Republicans having lost any capacity for shame, the Republicans' prime movers on judicial confirmations — Majority Leader Mitch McConnell and Judiciary Committee Chairman Charles Grassley — are adopting tactics that flatly contradict their stances on President Obama's last two Supreme Court nominations.
    Starting with Grassley, the Judiciary Committee chairman is pressing for Kavanaugh's confirmation hearing to be held in September well before the George W. Bush Presidential Library can provide even incomplete records of Kavanaugh's five years in the Bush White House. Now consider what Grassley had to say in regard to Elena Kagan's nomination to the Supreme Court on the Senate floor on June 15, 2010, as the committee was waiting for the Clinton Library to provide records about her years as a White House aide.
    Grassley, then in his thirtieth year as U.S. senator from Iowa, began his remarks by telling his colleagues that he had "always been of the opinion that the Senate needs to conduct a comprehensive and careful review of Supreme Court nominees [emphasis added]." For the Senate to fulfill its constitutional responsibility, Grassley elaborated, "we must get all of her documents from the Clinton Library and have enough time to analyze them so we can determine whether she should be a Justice."
    Republicans, then in a 59-41 minority in the Senate, fully explored the complete records on Kagan's work in the White House as domestic policy adviser, focusing on such issues as welfare reform, gun rights, and abortion. Grassley was one of 36 Republicans, along with the then-minority leader McConnell, who sized up Kagan based on that record as too liberal and voted against her confirmation, along with one Democrat.
    Democrats today want to examine all of Kavanaugh's work in the White House, including his three years as Bush's staff secretary that he himself describes as his "most formative" pre-judicial experience. They want to see the records to question Kavanaugh on the witness stand and then to use that evidence to try to substantiate, for any of the 51 Republicans willing to listen, their belief that Kavanaugh is too conservative and too partisan for a lifetime seat on the Supreme Court.
    Grassley started this contretemps by leaving Democrats behind as he asked the Bush library only for documents from Kavanaugh's two years in the White House counsel's office. All 10 Judiciary Committee Democrats submitted a separate letter last week asking for all of Kavanaugh's records, but Grassley dug in his heels. With the first batch of documents received from the National Archives, the Democratic leader Chuck Schumer of New York complained about the lack of transparency. "We don't know what they've held back and why," Schumer remarked.
    Grassley's full-speed-ahead approach is tied to the insistence by McConnell and other Republicans that Kavanaugh's confirmation needs to be completed in time for him to take the bench when the Supreme Court opens its 2018 term on Oct. 1, the traditional first Monday in October. The Republicans' concern about the need for a full nine-justice Court is laughably disingenuous after McConnell left the Court with a fourteen-month vacancy by refusing to consider Obama's nomination of federal appeals court judge Merrick Garland in 2016.
    McConnell now says he is willing to work on Kavanaugh's confirmation with Democrats on a bipartisan basis. The Senate's longest-serving Republican, Utah's Orrin Hatch, added to the comic relief last week by denouncing what he called Democrats' "dumbass" partisanship on Kavanaugh's nomination. "I'm tired of partisanship and frankly we didn't treat their candidates for these positions the way they're treating ours," Hatch said in a stakeout by reporters. The record, of course, is to the contrary: Republicans all but shut down any consideration of Obama's nominees for the federal bench in his final year in office.
    The liberal advocacy group People for the American Way aptly sized up the GOP's strategy in a statement by executive vice president Marge Baker. Republicans "are far more interested in rubber-stamping Donald Trump's nominees than in adequate vetting," Baker said. She challenged four Republican senators by name  Alaska's Lisa Murkowski, Arizona's Jeff Flake, Maine's Susan Collins, and Tennessee's Bob Corker — by asking whether they would "stand for the institutional integrity of the Senate." Stage direction: they do not move.
    Meanwhile, Kavanaugh's outside supporters are competing with the Senate Republicans for first place in disingenuousness. A television ad being run by the conservative Judicial Crisis Network says Kavanaugh "has earned respect from both sides of the aisle." It also includes a snippet from Kavanaugh's White House appearance, where he promised to keep "an open mind on every case." Lest any viewer be misled, however, the TV ad also shows what Kavanaugh's supporters are actually thinking: "a grand slam for conservatives."
    More than Neil Gorsuch's confirmation to succeed the late Antonin Scalia, Kavanaugh's nomination to succeed Anthony M. Kennedy could change the Supreme Court's balance of power for at least a decade or longer. "A solid conservative majority," Miguel Estrada promised to a Federalist Society luncheon last month. With so much at stake, Grassley's words eight years ago are well worth recalling. "We need to be certain," Grassley said then, "that the nominee will not come with an agenda to impose his or her personal political feelings and preferences on the bench."








Saturday, July 28, 2018

On Trump, Evidence of Collusion, Obstruction Grows

      Michael Cohen, Donald Trump's longtime fixer of a lawyer, is prepared to tell investigators with special counsel Robert Mueller that Trump knew in advance of the infamous campaign-time meeting that his son Donald Trump Jr. held at Trump Tower with a Russian offering dirt on Hillary Clinton. If true, Cohen's account comes close to evidence of Trump's conscious collusion with Russia in a presidential campaign that the Russian government, President Putin has now confirmed, wanted Trump to win.
      The New York Times followed the next morning [July 27] with a deep dive into Mueller's reported interest in fashioning an obstruction of justice charge out of Trump's various tweets aimed, the theory goes, at intimidating potential witnesses or pressuring officials to tamp down the inquiry. Mueller has reportedly stated that he will abide by he Justice Department's official view that the president is not subject to indictment, but his office could outline the criminal charge in an eventual report to Congress.
      In sum, the suggestions of criminality in the Oval Office are getting stronger and stronger: perhaps even too strong for feckless Republican lawmakers to ignore. "No collusion" sounds more and more like Nixon's plaintive denial, "I am not a crook"  with about the same degree of truthfulness.
      One other potential development is also too ominous to ignore: the possibility that Trump's Supreme Court nominee, Brett Kavanaugh, with his inflated view of presidential prerogatives, could have the decisive vote if any challenge to the Trump investigations reaches the high court. Any wavering Senate Republicans ought to be at least as concerned about that issue as they might be about the fate of women's reproductive rights if Kavanaugh is confirmed.
      The latest wrinkle on the Trump Tower meeting prompted a new spate of denials from Trump as well as from his newly enlisted lawyer mouthpiece, Rudy Giuliani. The former New York City mayor was in full finger-wagging mode as he answered every question from CNN's Chris Cuomo not with evidence but with attacks on Cohen's credibilit. "He's been lying for weeks," Giuliani said of Cohen just two months after having vouched for Cohen's honesty. "I don't see how he has any credibility."
      Cohen is reported by CNN to be saying that he saw Junior tell Trump in advance about the June 2016 meeting at Trump Tower, also attended by son-in-law Jared Kushner. Junior and Jared met, along with then-campaign manager Paul Manafort, with a Russian lawyer, Natalia Veselnitskaya, who had asked for the meet-up to share negative information about the then-leading presidential contender Hillary Clinton.
      Trump has repeatedly denied any foreknowledge about the meeting &#151 notably, in an extended interview with the New York Times in June 2017. "No, nobody told me about it," Trump told the Times with elaborate, he-doth-protest-too-much emphasis on the meeting's unimportance. "I never even heard about it." The president tweeted a new denial on Friday, accusing Cohen of a leniency-seeking fabrication. "I did NOT know of the meeting with my son, Don jr,," Trump tweeted. "Sounds to me like someone is trying to make up stories in order to get himself out of an unrelated jam (Taxi cabs maybe?)."
      A swearing contest between Trump and Cohen would be like a ball game between two under .500 teams: one side has to win whatever their past records may be. In Cohen's case, there is no documented instance of lying, however shady his appearance. In Trump's case, on the other hand, Cohen himself has provided the documentary evidence of a recorded telephone call to show that Trump, contrary to his previous denials, knew of the $130,000 in hush money paid to Stormy Daniels to try to silence her campaign-time allegations of a long-running sexual affair with Trump.
      Trump's denials about the Trump Tower meeting rang false from the very start. Junior has neither the smarts nor the guts to call the meeting without consulting Dad; nor is he smart enough to have spared Dad any information in order to provide him plausible deniability.
      The denials were never plausible in the slightest, according to Bob Bauer, former White House counsel under President Clinton. "The notion that a foreign government promising to bring groundbreaking ‘dirt’ on  Hillary Clinton to the campaign would be invited for a meeting, without running the entire suggestion by Donald Trump, at least informing and most likely getting his explicit approval, was never believable for a moment," Bauer said in an article by Vanity Fair's Abigail Tracy.
      David Corn, Washington bureau chief of Mother Jones, underlined the significance of Cohen's account, naturally enough, on Twitter. "If Cohen's account is accurate, Trump knew from the start that Putin had a secret plot to hurt HRC & help him," Corn tweeted. "Yet he constantly denied Russia was behind the attack on the US election. That is, he knowingly lied to protect a foreign adversary attacking the US. That's betrayal."
      Watergate, let it be remembered, was a national nightmare that spanned a little over two years: prolonged unnecessarily by a power-hungry president who used treachery and deception to fend off official investigations. The system worked, the nation said with a sigh of relief as Richard Nixon left office. It remains to be seen whether the system can work this time too.

Sunday, July 22, 2018

Kavanaugh on Precedents: This Wolf Comes as a Wolf

      Supreme Court nominee Clarence Thomas presented himself to the Senate Judiciary Committee as the very model of judicial restraint, with no "agenda to change existing law." Barely a week after his confirmation, however, he voted in conference to overturn a prisoner rights precedent and followed later in the term as one of four justices voting to overrule the landmark abortion rights decision Roe v. Wade
      Brett Kavanaugh was a recent Yale Law School graduate at the time and developed an intensified hero worship for the then-associate justice William H. Rehnquist after Rehnquist' called for overruling Roe in his dissenting opinion in the 1992 decision, Planned Parenthood v. Casey. Kavanaugh recalled that experience in a Constitution Day speech that he delivered, as a federal appeals court judge, to the conservative American Enterprise Institute (AEI) in September 2017.
      As President Trump's nominee to succeed Justice Anthony M. Kennedy on the Supreme Court, Kavanaugh may try to follow the Thomas example in disclaiming any predisposition to start reversing prior rulings if confirmed. But if he does, there will be even less reason to believe him than there was to accept Thomas's bald-faced dissembling a quarter-century ago.
      Kavanaugh recalled with regret in the AEI speech that Rehnquist had failed in his attempt to overturn Roe, but he credited the late chief justice with having "righted the ship of constitutional jurisprudence" in other areas, such as unenumerated rights, church-state separation, and administrative law. By the time he gave the speech, Kavanaugh was at or near the top of Trump's list of possible Supreme Court nominees in the event of a new vacancy. So the speech must be regarded as an audition for the role that Kavanaugh has now been awarded.
      As presidential candidate, Trump promised to appoint justices who would overturn Roe v. Wade if confirmed. In his Senate Judiciary Committee questionnaire, posted online over the weekend, Kavanaugh replied with a simple "no" to the question of whether anyone in the White House or executive branch had asked him for an assurance on how he would vote on a given issue or in a given case. Even accepting the unelaborated denial, however, there simply was no need for the White House to ask since Kavanaugh has already gone on record with a list of three important precedents that he would overrule if confirmed.
      Speaking to the AEI in March 2016, Kavanaugh spoke eagerly of hoping to overturn the 1988 decision in Morrison v. Olson that upheld the independent counsel statute over Justice Antonin Scalia's lone but oft-quoted dissent. Kavanaugh said, in an oversimplification, that the decision had been "effectively overruled," but he followed by vowing, "I would put the final nail in."
      Scalia's criticism of the now-lapsed law as wrongly giving unchecked power to a special prosecutor aimed at officials in the executive branch carried the day a decade later when Congress decided not to renew the statute. So the case is not overruled but simply moot. Still, the discovery of the AEI speech seemed to some to have possible implications for Kavanaugh's views of special counsel Robert Mueller.
      The White House was concerned enough about this inside-baseball story to dispatch deputy press secretary Raj Shah to stress that Mueller was appointed under a Justice Department regulation that would be unaffected by overturning the 1988 precedent. Kavanaugh's disagreement with the decision does have present-day relevance, however.
      Kavanaugh cited Scalia's dissent approvingly when he voted in dissent from the D.C. Circuit's decision in January to uphold the structure that Congress enacted in establishing the Consumer Finance Protection Board (CFPB). Congress created the CFPB as an independent agency to be headed by a single director, protected from removal by the president except for cause.
      In dissent, Kavanaugh discovered a constitutional rule requiring independent regulatory agencies such as the Federal Trade Commission and others to be headed by multimember commissions, not by a single director. Republicans and business interests that opposed the CFPB are now pressing a constitutional challenge even as Trump's interim nominee as director is leading a retreat from the agency's mission,
      Kavanaugh is also on record as wanting to limit the decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council (1984) that calls for judicial deference to administrative agencies when interpreting their powers under ambiguous congressional enactments. In a speech to the conservative Heritage Foundation, Kavanaugh outlined an approach that would effectively overrule the decision by requiring more explicit statutory language before upholding administrative agencies on "major" policy decisions. Conservative groups that have declared war against "the administrative state" are rallying around Kavanaugh as their champion for the battle.
      In his dissent in Morrison v. Olson, Scalia famously used the biblical metaphor of a "wolf in sheep's clothing" to warn of the law's dangers. Some issues come to the Court in "sheep's clothing," Scalia wrote. But, he concluded, "This wolf comes as a wolf."
      Kavanaugh may try on sheep's clothing when he comes before the Senate Judiciary Committee in hearings to be held in September. But senators ought not allow themselves to be fooled. This wolf comes as a wolf, with a public record of wanting to overturn judicial precedents. Whatever his answers at the hearing, two pro-choice Republicans senators, Alaska's Lisa Murkowski and Maine's Susan Collins, need to understand that Kavanaugh's confirmation quite likely could "put the final nail in" on Roe v. Wade. Rarely has so much turned on one or two votes on the floor of the U.S. Senate.

Sunday, July 15, 2018

Brett Kavanaugh's Situational Ethics

      In law, as in politics, where you stand may depend on where you sit. Brett Kavanaugh's on-and-off relationship with the U.S. presidency demonstrates that he is a creature of situational ethics, far from the judge of unbending moral principle as his admirers claim.
      Kavanaugh was a 30-something Republican lawyer on the make when he signed up with independent counsel Kenneth Starr for the impeachment of the popular-majority elected Democratic president Bill Clinton for lying about sex. His admirers emphasize that Kavanaugh argued for omitting from Starr's report the salacious details of Clinton's relationship with the White House intern Monica Lewinsky.
      Despite his sensibilities about sex, Kavanaugh had no political scruples about the nakedly partisan drive to impeach Clinton for a peccadillo and remove him from office. The Senate, it will be remembered, rejected the perjury charge on a 45-55 vote and deadlocked 50-50 on the obstruction count, far short of the two-thirds majority required for conviction.
      History now judges the Clinton impeachment as a mistake. A decade later, Kavanaugh himself appeared to have second thoughts, at least to some extent, as seen in a law review article published in 2008 now attracting close attention after his nomination to the Supreme Court.
      With George W. Bush's presidency about to end,, Kavanaugh reflected on his five years-plus in the Bush White House as staff secretary or associate counsel to call for shielding the president from legal investigations. "Congress might consider a law exempting a President—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel," Kavanaugh wrote in the article published in the Minnesota Law Review.
      A decade earlier, the Supreme Court in Clinton v. Jones (1997) had refused to find the president constitutionally entitled to such immunity. Kavanaugh stopped short of disagreeing with the Court, but he admitted that his views back then, "in retrospect," were "a mistake." In a sentence now startlingly prescient, Kavanaugh concluded, "A President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President."
      By the time of the law review article, Kavanaugh was a judge on the U.S. Circuit Court of Appeals for the District of Columbia, appointed to the bench at the young age of 41 by Bush, a fellow Yale alumnus. The Republican-controlled Senate confirmed his nomination on a 57-36 vote in spring 2006 after Democrats had delayed the confirmation for three years by citing his partisan record in the Clinton impeachment and the Bush White House.
      Kavanaugh complained in the law review article about the confirmation process and called for ensuring "prompt Senate votes on executive and judicial nominations." With a Democrat in the White House eight years later, however, Kavanaugh appeared to have forgotten his previous recommendation. He watched from the sidelines, in public silence, as the Republican-controlled Senate refused to consider President Obama's nomination of Kavanaugh's D.C. Circuit colleague, Merrick Garland, to the Supreme Court.
      In the law review article, Kavanaugh had called for the Senate to adopt a rule requiring a vote on "every judicial nominee" within 180 days of the nomination. The Senate's tactic drew no public objection from Kavanaugh's chambers.
      President Trump passed over Kavanaugh's pre-judicial record in announcing his decision to nominate Kavanaugh for the vacancy created by Justice Anthony M. Kennedy's retirement. His many supporters mostly follow suit: they see in his 12 years on the federal bench the very model of a judge's judge. They also profess no concern whatsoever that Kavanaugh will be less than independent of his presidential benefactor if confirmed.
      The question is hardly academic, with Trump under investigation at the very moment. "I don’t know of any justice who has staked out as strong a position on presidential immunity even from questioning as Judge Kavanaugh has,” Walter Dellinger, a former acting U.S. solicitor general in the Clinton administration, remarked to The New York Times.
      Michael Gerson, a colleague of Kavanaugh's as a Bush speechwriter and now a syndicated columnist, pooh-poohed any worries about Kavanaugh's independence. Kavanaugh, Gerson wrote, knows that the Court itself may have to impose restraints on Trump's "lawlessness and bullying" and "has the character and patriotism to act upon it."
      Kavanaugh showed no such character in accepting the nomination with Trump at his side. Instead, he fawned over the president, gratuitously and as the worst kind of toady. "No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination,” Kavanaugh said. Trump surely lapped it up, but the assertion is palpably false and surely beyond Kavanaugh's personal knowledge besides.
      Moments later, Kavanaugh also complimented Trump by saying that he had the opportunity to view the president's "respect for the judiciary." Apparently, Kavanaugh paid no attention when candidate Trump accused the judge in the Trump University case of being biased against him because of the judge's Mexican heritage. And apparently Kavanaugh also missed the president's various criticisms of the several federal judges who ruled against his travel ban.
      Those are not the words of a justice prepared to stand up against Trump's megalomaniacal view of his powers as president. Critics naturally view Kavanaugh not as the strong-backboned jurist that his former colleague Gerson believes him to be, but as a likely servile apologist for the president in any potential legal challenge to his powers.

Sunday, July 8, 2018

At Supreme Court, Weaponizing the First Amendment

      No aspect of American exceptionalism deserves patriotic celebration more than our beloved First Amendment with its open-ended promise of freedom of speech, freedom of press, and freedom of religion. Our birthright as Americans includes the freedom to say what we what, think what we want, and believe what we want without needing permission from the government.
      In the 90 years since the Supreme Court first incorporated the First Amendment against state and local governments, the Court has enforced its provisions in the service of free expression from sea to shining sea. But the Supreme Court ended its 2017 term with a pair of decisions that allowed groups with no real interest in free speech to turn the First Amendment into a weapon against democratically enacted policies protecting union rights in one instance and reproductive rights in the other.
      The Court not only entertained but validated phony "compelled speech" claims in the two decisions: Janus v. AFSCME and NIFLA v. Becerra.. In Janus, an Illinois government employee, Mark Janus, wanted to get out of paying a fair share of AFSCME's costs in representing him and other non-union members in collective bargaining and grievance procedures, as allowed under Illinois law. In NIFLA, the national trade association representing anti-abortion crisis pregnancy centers wanted to get  two centers in San Diego County out from under a California law that required them to give pregnant women accurate information about the availability of the full range of pregnancy-related counseling and services from state agencies.
      Compelled speech claims have an honored history at the Supreme Court. Marie and Gathie Barnett won a place in U.S. Reports after they refused, as Jehovah's Witnesses, to pledge allegiance to the U.S. flag while elementary school students in West Virginia during World War II. Speaking for the 6-3 majority in West Virginia State Board of Education v. Barnette, Justice Robert H. Jackson famously and quotably declared that in the United States "no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."
      The majority opinions in the two new decisions pay obeisance to this principle, but it is window dressing for policy-driven results in both. The conservative bloc's true agenda, is palpable in the anti-union subtext in Justice Samuel Alito's opinion in Janus and in Justice Clarence Thomas's relative indifference in NIFLA toward pregnant women's interests in full information about their medical and legal options.
      The groups supporting Janus made no secret of their true intention of trying to weaken public sector unions and weaken their influence in election campaigns. In one fundraising letter, the anti-union Freedom Foundation promised that a ruling for Janus "should take the government unions out of the game for good."
      In NIFLA, the conservative justices' own policy preference was evident in Thomas's effort to reconcile the new decision with a seemingly contradictory ruling that was part of Planned Parenthood v. Casey (1992). Back then, the Court upheld a Pennsylvania law requiring doctors to inform a woman before an abortion about supposed health risks from the procedure and to give the woman information about the fetus: no compelled-speech problem found. Thomas was part of the majority on that part of the ruling, but a quarter-century later he drew the line at requiring the pregnancy centers to post a simple sign that low-cost public programs were available.
      Thomas explained that the Pennsylvania law was about informed consent before a medical procedure and the California law merely a plug for the state's programs. But as Justice Stephen G. Breyer explained in his dissent, pregnancy and childbirth are medical procedures: the California law, no less than the upheld Pennsylvania provision, was aimed at making sure pregnant women had complete information.
      Breyer aptly warned that the decision threatened other consumer protection provisions: as one example, he cited a California law requiring hospitals to inform new parents about child safety seats. And just two days later the Court told the federal appeals court in California that NIFLA might be grounds for striking down a local ordinance requiring cell phone providers to warn users that keeping a cell phone in a pocket might result in radiation exposure in excess of federal guidelines.
      In , Alito dissembled just as Thomas did by failing to make clear that the agency fees Janus and others were required to pay could not be used to pay for the union's political advocacy outside the collective bargaining context. As Justice Elena Kagan explained in dissent, "no part of those fees could go to any of the union's political or ideological activities." 
      The fallout from Janus will be broad and direct. The ruling invalidates laws in 22 states that allow public sector unions to charge agency fees to non-members. The unions in those states will take a financial hit, just as the anti-union funders for Janus wanted, and the hundreds of contracts negotiated with agency fees for non-members included presumably reopened.
      The 5-4 splits in the two decisions speak less to constitutional law than to raw politics. In her dissent in Janus, Kagan rightly complained that the majority was "turning the First Amendment into a sword and using it against workaday economic and regulatory policy." The First Amendment, she said, "was meant for better things."

Sunday, July 1, 2018

Supreme Court's Willful Blindness on Travel Ban

      None are so blind as those who refuse to see. That well-worn adage applies perfectly to the Supreme Court's willfully blind decision to uphold President Trump's travel ban despite its evident anti-Muslim animus and its transparently pretextual national security rationale.
      To be clear, Chief Justice John G. Roberts Jr. recited much of the evidence of Trump's anti-Muslim prejudice before getting his four Republican-appointed conservatives to go along with upholding Trump's Proclamation 9645, his third iteration of travel restrictions aimed mostly at Muslim-majority countries. Trump issued that proclamation in September 2017 after federal appeals courts had struck down his first two executive orders — so-called EO1 and EO2 — as unconstitutional or illegal or both.
     Trump claimed complete vindication within minutes after Roberts announced the Court's decision in Trump v. Hawaii at the end of Tuesday's court session [June 26]. But his ears should have been burning. Roberts disclaimed any role for the Court to "denounce" Trump's statements, but he recited what any reasonable observer would have regarded as a damning summary.
      Speaking for two of the four Democratic-appointed dissenters, Justice Sonia Sotomayor showed no such reticence in detailing Trump's "deeply offensive" comments dating from his September 2016 campaign promise of a "total and complete shutdown of Muslims entering the United States . . . ." From the bench, Sotomayor continued with details that spanned six pages in her written opinion. She ended with Trump's retweet in November 2017 of virulently anti-Muslim videos posted by a British political party with an explicitly Islamophobic platform.
      Sotomayor, joined by Ruth Bader Ginsburg but not the other two liberal justices, acknowledged Roberts' point that the issue for the Court was not whether to denounce those statements. The "dispositive" issue, she explained, was whether a reasonable observer would conclude from all this information that the proclamation's "primary purpose" was "to disfavor Islam and its adherents by excluding them from the country." 
      Surely, Sotomayor concluded in a tongue-lashing like none other ever delivered from the Supreme Court, the answer to that legal question was yes. Trump, she noted "has never disavowed any of his prior statements about Islam," despite "several opportunities to do so." And so, she went on, the proclamation cannot be upheld against the charge of Constitution-violative religious animus by the putative national security concerns. The "unassailable fact," she explained, is that the proclamation "is contaminated by impermissible discriminatory animus against Islam and its followers."
      For Roberts and the other Trump-excusing justices, the issue was not the First Amendment's protection of religious freedom but Article II's grant of executive power. Other presidents had imposed country-specific travel bans, Roberts noted: Reaagan on Cuba, Carter on Iran. The Court's decision, he noted, must avoid shackling some future president from acting on a real national security concern. But for Sotomayor that was the point: a future president must be prevented from acting on unconstitutional animus, just as the Court in Korematsu should have prevented FDR from interning Japanese citizens on trumped-up fears of national security.
      A note about the religious liberty at stake: not the religious freedom of the beyond-our-borders traveler or asylum applicant, but the religious freedom of U.S. residents and citizens to interact with friends, relatives, colleagues, and others without governmental discrimination. Lost in the Court's decision was the University of Hawaii's ability to meet with scholars from the affected countries, a U.S. citizen's ability to welcome his mother-in-law from another of the affected countries, and — in the other case, from the Fourth Circuit — the International Refugee Assistance Project's ability to aid asylum applicants from the affected countries.
      Sotomayor rightly dismissed the administration's attempts to find legal justification for what originated as and continued as an anti-Muslim travel ban. The conservative majority swallowed the administration's line that a worldwide interagency review of travel security in other countries justified the inclusion of the countries that remained from EO1 and those added since. As Sotomayor noted, this review was a scant seventeen pages in length. 
      In a separate opinion, Justice Stephen G. Breyer, joined by his pragmatic liberal colleague Elena Kagan, voiced disbelief about another of the administration's claims in defending the travel ban. At oral argument, Solicitor General Noel Francisco emphasized that the proclamation included waiver provisions that he assured the Court would be applied in generous good faith. 
      Wrong, Breyer noted, in his opinion issued two months later. The number of waiver applicants approved so far is a minuscule percentage of the total: 430 out of more than 6,500. In addition, he noted, the administration has yet to issue formal guidance for consular officers to follow in exercising their supposed discretion to grant waivers.
      Breyer suggested a remand rather than a ruling so that lower federal courts could examine the actual implementation of the proclamation. The conservatives had no interest, but the opportunity may yet arise: a Muslim advocacy group filed a federal court lawsuit on Friday [June 29] challenging the proclamation on a facts-on-the-ground basis. 
      Still, Sotomayor was surely right with her final words. "Our Constitution demands, and the country deserves, a Judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments," she wrote. "[T]he Court's decision today has failed in that respect. . . "

Wednesday, June 27, 2018

For Liberals, Little to Cheer in Kennedy's Final Term

      Justice Anthony M. Kennedy gave liberal advocates and interest group little reason to cheer in his final term with his opinions and votes and no special reason apart from his previous record to mourn his decision to retire after 30 years on the Supreme Court. The news of Kennedy's decision spread as Court watchers were still digesting a batch of major 5-4 decisions in which Kennedy had helped give the Court's conservative bloc the clout to uphold President Trump's travel ban and strike down a 41-year-old precedent beneficial to public sector unions.
      Kennedy's final term is a useful reminder that even though he came to the Court as President Ronald Reagan's third choice — after the ill-fated nominees Robert Bork and Douglas Ginsburg —  he still came as a dyed-in-the-wool Republican with conservative DNA. He helped shift the Court to the right in his initial terms by providing pivotal votes needed to limit remedies in federal job discrimination cases until Congress and President George H.W. Bush enacted a law overturning two of them.
      Kennedy emerged as the swing-vote justice much beloved by liberal interest groups only in 1992 when he provided a critical vote, to widespread surprise, to uphold the abortion rights ruling Roe v. Wade in Planned Parenthood v. Casey (1992). In succeeding years, he gained further acclaim from the political and legal left with decisions in several areas, most famously in three landmark decisions guaranteeing political and legal rights for gays and lesbians.
      That was then, and this is now: in the 2017 term Kennedy was a reliable vote for the conservative bloc in virtually all of the most closely divided decisions. Three years ago, he was celebrated as the author and the critical fifth vote for the decision in Obergefell v. Hodges (2015) that guaranteed marriage rights for same-sex couples nationwide.
      Among his six majority opinions in the 2017 term, however, Kennedy's first was a major blow to liberal advocacy groups. He led a 5-4 majority in Jesner v. Arab Bank that protected foreign corporations from suits in U.S. courts under the Alien Tort Statute for human rights violations abroad. He also discovered and highlighted the purportedly anti-religious comments by Colorado civil rights commissioners in the gay wedding cake case that resulted in his 7-2 opinion in Masterpiece Cakeshop in favor of the Colorado baker who refused to make a cake for a gay couple's wedding celebration.
      Among his other four majority opinions, three were cut from different cloth. The 9-0 decision in Byrd v. United States protected Fourth Amendment rights for unauthorized drivers of rental cars. The 6-3 ruling in Hughes v. United States gave guilty-pleading defendants in federal court the benefits of post-plea reductions in Sentencing Guidelines. The 8-1 ruling in Lozman v. Riviera Beach made it somewhat easier to sue on free-speech grounds for retaliatory arrests.
      In contrast to the decisions most celebrated by Kennedy's liberal admirers, however, not once during the 2017 term did Kennedy give the four liberals the fifth vole they needed to advance their views or to blunt the conservative juggernaut. And Kennedy actually led the dissenters in the liberal bloc's most important 5-4 victory: the decision written by Chief Justice John G. Roberts Jr. in Carpenter v. United States to require police to get a search warrant to obtain cell phone records needed to track a suspect's whereabouts over an extended period.
      Out of 18 5-4 decisions, Kennedy gave his four Republican-appointed conservative colleagues the fifth vote they needed to prevail in 13. Those cases include decisions to enforce mandatory arbitration in the workplace, uphold Ohio's aggressive purge of voter registration rolls, and — in a Kennedy opinion — to uphold states' ability to tax online sales. Only in the term's final decision, the water rights dispute in Florida v. Georgia, did Kennedy provide the fifth vote for the mostly liberal majority that Breyer led in giving Florida a second chance to protect its oyster beds from Georgia's water-hungry farmers.
      Kennedy's final opinion in U.S. Reports will be the toothless two-page concurrence he wrote in the travel ban case, Trump v. Hawaii. He wrote, as though in an advice column instead of a judicial decree, that it was "imperative" for government officials to obey the Constitution even if they had broad discretion "free from judicial scrutiny."
      Three weeks earlier, Kennedy had led the Masterpiece Cakeshop Court in ruling against the Colorado Civil Rights Commission because of stray comments by commissioners that Kennedy viewed as anti-religious. But Kennedy said not a word about the explicitly anti-Muslim comments that President Donald Trump made on the campaign trail and in the White House in advance of adopting a travel ban targeting mostly majority-Muslim countries.
      Gay rights is one of several elements of Kennedy's legacy for liberal interest groups to celebrate. He protected racial preferences in higher education with his decision in Fisher v. University of Texas (2016). In the same year, he protected abortion clinics from overly intrusive state regulations in Whole Woman's Health v. Hellerstedt (2016).  He also widened the scope of the federal Fair Housing Act in Texas Dep't of Housing & Community Affairs v. Inclusive Communities Project, Inc. (2015). And he helped protect juveniles and intellectually disabled offenders from the death penalty with his opinions or votes in a series of cases early in the 2000s.
      Yet Kennedy's conservative DNA came to the surface in his final term, just as it had done in such pivotal recent decisions as the gun rights ruling in District of Columbia v. Heller (2008) and the campaign finance ruling in Citizens United v. Federal Election Commission (2010). But make no mistake: a Trump-nominated and -confirmed successor will shift the Court, sharply and lastingly, toward the extreme positions that the political and legal right has been advancing for the past two decades. The fight over his successor will be fierce, as well it should be, for the stakes for law and justice are high indeed.

Sunday, June 24, 2018

On Gerrymandering, Court Needs Constitutional Resolve

      The Supreme Court blinked twice before its decision in Baker v. Carr (1962) opened the door to the one-person, one-vote revolution that made political equality a constitutional rule in the United States. The Court in 1932 found no requirement for congressional districts to have equal population and in 1946 turned aside a challenge to malapportioned state legislatures by bowing to Justice Felix Frankfurter's warning against entering "the political thicket."
      That history helps explain the Court's hesitation over the past three decades to rule on legal challenges to the discredited centuries-old practice of political gerrymandering. Better understood, however, history teaches that the Court need not hesitate — as it did last week, in two separate decisions. Instead, with constitutional resolve, the Court should follow the example from the 1960s and adopt a workable legal framework to force needed reforms onto an unwilling and self-interested political system.
      The Court in the 1960s needed only two years to establish the now familiar rules that govern redistricting cases. Just one year after Baker v. Carr, Justice William O. Douglas wrote the 8-1 decision in Gray v. Sanders with its famous declaration that political equality "can mean only one thing — one person, one vote." One year after that ruling, Chief Justice Earl Warren wrote also for an 8-1 Court in Reynolds v. Sims (1964) that states with bicameral legislatures must apportion seats in both chambers on the basis of population, not geography. "Legislators represent people," Warren wrote, "not trees or acres."
      The gerrymandering issue cries out for the same kind of constitutional clarity, but for 30 years now the justices have worried instead about how to fashion a "manageable" standard for courts to apply in determining how much politics is too much in the redistricting process. Ever since the first of the false-start gerrymandering cases — Davis v. Bandemer in 1986 — the Court has needed to hitch up its pants just as the Warren Court did instead of wringing its hands.
      The Court could declare firmly that representative democracy can mean only one thing: people elect their representatives; the representatives do not get to pick the people they represent. And a democratic republic does not allow a political majority to rig the system today in a way that preserves its majority status into the future.
      The districting plans challenged in two cases last week would be thrown out under that simple, easy-to-understand standard. But instead, with seeming partisan evenhandedness, the Court last week turned aside a Democratic challenge to a Republican gerrymander in a Wisconsin case and a Republican challenge to a Democratic gerrymander in a Maryland case. The partisan manipulation in both cases was blatant and extreme, but Chief Justice John G. Roberts Jr. led two unanimous decisions that sent the challengers away with nothing to show for their evident political injuries.
      The Wisconsin case, Gill v. Whitford, rejected on the technical issue of legal standing, was a particular disappointment for political reformers, who thought they had the silver bullet needed to take aim against partisan gerrymanders. The plaintiffs showed that a Republican-controlled legislature and Republican governor had redrawn the state's 99 Assembly districts in a way that allowed them, through three election cycles, to gain solid legislative majorities significantly disproportionate to the party's overall vote totals in legislative races.
      The plaintiffs had devised a parameter that they urged the Court to use as the "manageable" standard needed to determine when a political gerrymander goes too far. Their so-called "efficiency gap" calculated each of the major parties' "wasted votes" — that is, more votes than needed packed into a "safe" district and other votes "cracked" apart and scattered into the opposing party's districts. By showing that the Republican-drawn plan resulted in many more wasted Democratic votes than wasted Republican votes, the plaintiffs won a lower court decision invalidating the state map and ordering a new one to be drawn either by the legislature or the court itself.
      A half-century ago, Warren steeled a nearly unanimous Court to confront the political evil of malapportionment. Roberts instead led a unanimous Court in ducking a political evil that, thanks to computer-drawn maps, bids fair to worsen in the next election cycle. To duck the Wisconsin case, Roberts found that the plaintiffs had failed to establish legal standing by proving that their individual districts were improperly drawn. In the Maryland case, Roberts' hand was evident in the unsigned opinion that found Republicans had been too slow in fashioning a freedom-of-association claim to challenge the total recomposition of what had been one of the GOP's few congressional districts in the predominantly Democratic state.
      Encouragingly, Justice Elena Kagan showed the necessary constitutional resolve in a concurring opinion joined by three liberal colleagues but, unfortunately, not by the handwringing justice Anthony M. Kennedy. Kagan went along with Roberts on standing and may have helped influence him in giving the plaintiffs the chance to try their case again rather than throwing it out, as conservative justices Clarence Thomas and Neil Gorsuch urged.
      The Court, Roberts declared, "is not responsible for vindicating generalized partisan preferences." Kagan disagreed. "Courts have a critical role to play in curbing partisan gerrymandering," she wrote. She also envisioned the possibility that the Wisconsin plaintiffs could better develop an "associational theory" for the case that would entail a different theory of legal standing and open the door to a statewide remedy. On that, not-too-sturdy reed hangs the hope of devising, after too long a wait, a judicial remedy for a political evil that the Constitution, properly understood, does not countenance.

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.