Saturday, March 31, 2018

To Impeach Thomas,Too Little, Too Late

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

Sunday, March 25, 2018

Scalia's Legacy: The Abiding Contradictions

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

Sunday, March 18, 2018

Time for Court to Stop Abuse of First Amendment

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

Sunday, March 11, 2018

High Court Rules Out Bail in Immigration Cases

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

Sunday, March 4, 2018

No Minds Changed in Union Fees Case

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