Saturday, May 18, 2019

Court's Conservatives 'Unmaking' Law Again

      The Roberts Court's refortified conservative majority stirred fears for the future of abortion rights last week [May 13] by flexing their muscles to discard in the name of federalism a 40-year-old precedent that had gone all but unnoticed ever since. Speaking for the four liberal justices in dissent, Justice Stephen G. Breyer rejected the majority's rationales for scrapping the old case and, pointing in particular to the most reaffirmation of Roe v. Wade, wondered in print about "which cases the Court will overrule next."
      The fate of Roe v. Wade apparently now turns on the predilections of Chief Justice John Roberts and the Court's newest justice, Brett Kavanaugh. The future of Roe v. Wade was the most important issue in Kavanaugh's confirmation hearing last year until the late-arising dispute over a 30-year-old accusation of sexual misconduct.
      Kavanaugh secured the influential vote of Maine's sometime maverick Republican Susan Collins only after convincing Collins that he was not dead set on overruling Roe if confirmed. Roberts too was questioned closely about the case in his confirmation hearing 14 years ago and allayed some fears among abortion-rights advocates by stressing the importance of precedent and calling it a "jolt to the system" to overrule a prior decision.
      Outside the Court, anti-abortion forces are working hard to provide a test case that the conservative bloc could use to flatly overrule Roe, notably in the new Alabama law that makes women and doctors alike criminally liable for abortions except in extremely rare circumstances. The new laws enacted in ruby-red Republican states validate their political strategy despite the still prevailing majority in the United States opposed to completely outlawing abortion.
      The Court's reversal of an old precedent in the new decision, Franchise Tax Board of California v. Hyatt, refocused attention on the Roberts Court's record on reversing prior rulings. Statistics compiled for the Supreme Court Database at Washington University's School of Law in St. Louis show that the Roberts Court actually has been scrapping old cases at a slower pace than any of the previous Courts under three chief justices: Earl Warren, Warren E. Burger, and William H. Rehnquist.
      A close examination of the overruled cases behind the statistics, however, shows that the conservative justices' policy slips are showing beneath their robes. Among 22 cases listed either in my Supreme Court Yearbook, the Supreme Court database, or both, nearly half divide neatly between five Republican-appointed conservatives and four liberal justices, currently the four Democratic appointees and earlier including the moderate Republican appointees Anthony Kennedy and John Paul Stevens.
      Twice, the Roberts Court reversed prior decisions to throw out provisions of campaign finance laws favored by Democrats and election reformers and opposed by Republicans and conservative groups. In both of those cases, the conservative majority acted more like legislators than judges by discounting the fears of corruption that Congress had cited in enacting the campaign spending limits.
      Among other 5-4 conservative reversals, the Roberts Court narrowed the scope of federal antitrust law by rejecting a century-old precedent and just last year threw out a 40-year-old precedent to limit the financial base for public employee unions. Another precedent-reversing decision limited, in the name of newly discovered Second Amendment gun rights, the power of local governments to regulate possession of handguns. The parallel to Republican Party platform positions cannot be ignored.
      The conservative justices all followed the Republican script in their confirmation hearings by promising to interpret the law instead of making law, as activist judges presumably do. In any number of cases, however, the Republican justices have turned out to be activists bent on unmaking the law. Look, for example, at the 5-4 decision in 2007 to uphold a federal ban on so-called partial-birth abortions just seven years after striking down an almost identical state law.
      In last week's decision, the Court threw an earlier ruling, Nevada v. Hall (1979), that allowed a California plaintiff to sue the state of Nevada in a California court for injuries sustained when hit by a car driven in California by a Nevada state employee. In the new case, the tables were reversed: a Nevada man, the wealthy investor Gilbert Hyatt, sued California's tax agency in Nevada court for alleged wrongdoing in an aggressive tax audit back in the early 1990s.
      The conservative majority led by Justice Clarence Thomas concluded that states enjoy sovereign immunity in other states' courts even though the Constitution never says so in so many words. Thomas recited, of course, the various rationales for overruling old decisions, including supposedly unfavorable consequences. But Breyer noted that the old case had been rarely used: only 14 cases in 40 years when a state was sued in another state's courts.
      Liberal justices have prevailed in only three of the Roberts Court's 5-4 reversals of prior decisions by picking up Justice Anthony Kennedy's vote in the same-sex marriage case and by picking up votes from Thomas or Justice Antonin Scalia in two criminal law decisions. Some of the other reversals have come by lopsided votes: two in unanimous decisions, two others by 8-1 votes.
      It bears noting here that the Warren Court was unanimous in two of its most important reversals of prior decisions. All nine justices joined in the decision in Brown v. Board of Education (1954) to overturn the separate-but-equal doctrine from Plessy v. Ferguson. A decade later, the Court was unanimous again in reversing a prior decision when it ruled, in Gideon v. Wainwright (1963), that indigent criminal defendants must be provided an attorney for their defense. History now judges both of those reversals to have been well considered and long overdue.
      As chief justice, Roberts has tried in vain to dispel the odor of political partisanship that hangs over the Court more than perhaps ever before in history, but he has gone along with his fellow conservatives in all of those overtly political cases To paraphrase Roberts from another context, perhaps the best way for the Court to stop being seen as political is, in fact, to stop ruling on the basis of politics.
      Many experts believe that Roberts will shy from providing the fifth vote to flatly overrule Roe v. Wade just as Republicans and President Trump have hoped for in packing the Court with doctrinaire conservatives. As Trump might say if asked, "We'll see what happens."

Sunday, May 12, 2019

The Unfinished Work of Reconstruction

      A day trip to Philadelphia's Independence Mall provides a valuable reminder of the unfinished work of racial justice in America. Slavery was America's original sin and recompense for that sin not yet fully paid, if at all.
      Philadelphia, it will be remembered, is the city where Thomas Jefferson drafted the Declaration of Independence in 1776 with its sweeping promise that "all Men [sic] are created equal" and "endowed . . . with certain unalienable rights, [including] Life, Liberty, and the Pursuit of Happiness." A decade later, delegates from 12 of the 13 states of the new nation gathered to draft a new Constitution in hopes of forming "a more perfect union" while tacitly bowing to the reality of human-chattel slavery in six of those states.
      The occasion for the visit was the opening of a new permanent exhibit at the National Constitution Center, "The Civil War and Reconstruction: The Battle for Freedom and Equality," a project spearheaded by the center's president, Jeffrey Rosen. The 3,000-square foot exhibit, accessibly designed and insightfully curated, features among more than 1,000 artifacts original copies of the three post-Civil War constitutional amendments that together amount to what many historians call "the Second Founding."
      Rosen, a friend and source for years, enthused as he welcomed invited guests for a preview of the exhibit on Tuesday [May 7]. The exhibit, he explained, "takes the story of the promise of the Declaration of Independence that was thwarted in the Constitution and then resurrected by Lincoln and Douglass and enacted in the Reconstruction Amendments." But Lincoln's promise of "a new birth of freedom" went unrealized as the three amendments were neutered by the connivance of white-dominated state governments and the shortsightedness of a Supreme Court that rejected Congress's attempts to enforce the amendments.
      The Thirteenth Amendment, approved by Congress with the war still going on and ratified barely eight months after the Confederacy surrendered, abolished slavery on paper. But it included a loophole, the "criminal exception clause," that allowed involuntary servitude "as a punishment for crime . . . ." That loophole, Rosen explained, effectively consigned many of the freed ex-slaves to servitude on the plantations still owned by the former slave masters.
      The Fourteenth Amendment, ratified in 1868 with its Equal Protection Clause, embodied the goal of equal rights long urged by Ohio's Republican representative John Bingham. It came to naught for a half-century and longer because of a series of Supreme Court decisions beginning with the ruling in the so-called Slaughterhouse Cases(1872) that the amendment protected only a limited list of federally guaranteed rights.
      All three of the amendments included sections specifically authorizing Congress to enact "appropriate legislation" to enforce their provisions. In 1876, however, the Court effectively nullified one of those laws: the Enforcement Act of 1870, which prohibited two or more persons from joining together to deprive anyone of constitutional rights. The 5-4 ruling in Cruikshank v. United States reversed the convictions of armed white insurgents who had ousted the elected black government in a Louisiana parish; the justices decided that the Fourteenth Amendment applied only to state action, not to private conduct.
      In a more serious setback, the Court applied the same rationale in striking down the law Congress had passed in 1875 to prohibit racial discrimination in public accommodations. The 8-1 ruling in Civil Rights Cases (1883) denied Congress the power despite the Fourteenth Amendment's Enforcement Clause to regulate private conduct. It took Congress another 80 years to try again by passing the Civil Rights Act of 1964, a law upheld the same year by a much different Supreme Court under Chief Justice Earl Warren.
      The Fifteenth Amendment, ratified in 1870, seemed on paper to guarantee black men, not women, the right to vote, but southern states found ways to get around it and block most blacks from voting until the Voting Rights Act of 1965. Some 80 percent of black men registered to vote as early as 1867 in southern states even before the Fifteenth Amendment, according to Henry Louis Gates Jr., the Harvard professor and author of the new bookStony the Road: Reconstruction, White Supremacy, and the Rise of Jim Crow.
      The Fifteenth Amendment notwithstanding, southern states began disenfranchising blacks not long after Reconstruction ended with the withdrawal of federal troops in 1877. Mississippi provided the template with a new constitution adopted in 1890 by an all-white constitutional convention that imposed literacy tests and poll taxes as requirements for voting. Gates, speaking with Rosen after touring the new exhibit, noted that in Mississippi's neighboring state of Louisiana the number of blacks registered to vote fell from 130,000 in 1898 to only 1,342 in 1904.
      Reconstruction produced "a violent backlash, a racist backlash," Gates explained. His book and his PBS series Reconstruction: America after the Civil War parallel the new exhibit in seeking to counteract the previously dominant view of Reconstruction as a misguided effort to subjugate the defeated southern states. It was instead an ambitious if short-lived effort to fulfill the revolutionary era's promise of equal rights that fell victim to violence, intimidation, and legal stratagems at the hands of resurgent white supremacy.
      With the present-day eruption of white supremacist ideology, Gates was stating the all-too-painful truth in saying, "We have never dealt with the issues raised by Reconstruction." Rosen appeared to agree: "We all share a collective responsibility to make our union more perfect."

Sunday, May 5, 2019

Trump's Lawyers Revive Imperial Presidency

      Three years after quitting the White House in disgrace, the former president Richard M. Nixon explained to the British interviewer David Frost his understanding that the president is not so much above the law as the personal arbiter of the law itself. Asked about the legality of his conduct in the Watergate scandals, Nixon answered as though stating the obvious, "Well, when the president does it, that means that it is not illegal."
      Nixon's claim was so audacious that the video clip has been replayed and viewed countless times as the simplest and most blatant expression of his constitutional offenses.  Four decades later, however, President Donald Trump's lawyers are now reviving the Nixonian theory of the imperial presidency in defending him against two of the many accusations against him of unconstitutional conduct.
      Attorney General William Barr had no compunctions whatsoever in using a nationally televised congressional hearing last week [May 1] to claim for Trump the power to shut down a criminal investigation into his own conduct. Political and legal historians immediately saw a parallel in Barr's view of presidential power to Nixon's ill-fated decision to fire Watergate special prosecutor Archibald Cox in October 1974.
      Admittedly, Barr was just starting law school at the time of the Saturday night massacre in fall 1974, but still he must know that the American public, Congress, and the judicial system decisively rejected Nixon's claimed power to shut down the Watergate investigation. A special federal court found Cox's dismissal illegal and then appointed Leon Jaworski to take over the investigation. The ensuing history gives no support for executive branch partisans such as Barr.
      Here, from Barr's testimony before the Senate Judiciary Committee as questioned by ranking Democrat Dianne Feinstein, is his explanation for Trump's power to remove special counsel Robert Mueller had he chosen to do so. Note at the outset that Barr misstates the Mueller report by depicting the evidence as conclusively disproving the accusations against Trump rather than falling short of provable obstruction of justice.
      "If the president is being falsely accused, which the evidence now suggests that the accusations against him were false, and he knew they were false, and he felt this investigation was unfair, propelled by his political opponents, and was hampering his ability to govern, that is not a corrupt motive for removing an independent counsel. So that's another reason we would say the government would have difficulty proving this [obstruction of justice] beyond a reasonable doubt."
      Barr went even further in his role as Trump's lapdog by contending that Trump's direction to his former White House counsel Don McGahn to lie about Trump's instruction to raise a phony conflict of interest issue to try to remove Mueller. "That's not a crime," Barr said without a moment's hesitation. He reasoned that McGahn's lie would not have impeded Mueller's investigation because McGahn had already testified about the episode.
      In the meantime, Trump's lawyers were advancing a similarly expansive view of presidential power in defending him in federal court against a lawsuit seeking to stop him from further violations of the Constitution's Emoluments Clauses. Ruling in a case brought by Democratic members of Congress, Blumenthal v. Trump, U.S. District Court Judge Emmet Sullivan rejected Trump's lawyers' various arguments for narrowing the definition of domestic or foreign "emoluments" that the president, along with other federal officers, are constitutionally prohibited from accepting without consent of Congress.
      Sullivan, a no-nonsense judge appointed to District of Columbia courts by two Republican presidents before being appointed to the federal bench by President Bill Clinton, devoted most of his 48-page opinionto a point by point refutation of the arguments for overlooking all the foreign governments booking expensive stays or events at Trump's Pennsylvania Avenue hotel. In sum, Sullivan found that the Framers understood emoluments broadly to include any financial benefits and viewed the clause as a safeguard against foreign influence on the president.
      Apart from those unsuccessful arguments, Trump's lawyers also argued that the court had no power to order the president to stop accepting foreign emoluments. Instead, they argued, the plaintiff lawmakers "can only obtain relief from the president"--totally up to the president, in other words, whether to comply with the Constitution or not. Sullivan answered by citing judicial precedents. "When there is no other remedy, courts have allowed suits against the President to proceed," he wrote.
      The president's duty under the Emoluments Clause, Sullivan went on, was clear and absolute. "The acceptance of an Emolument barred by the Clause is prohibited unless Congress chooses to permit an exception . . . ," the judge wrote at page 47. "Given the 'sweeping and unqualified' Constitutional mandate, the President has 'no discretion  . . . no authority to determine whether to perform the duty' to not accept any Emolument until Congress gives its consent."
      Trump's lawyers had one more argument: an injunction to block any further emoluments, they warned, would create a "significant burden" for a president who, it needs to be noted, refused to divest himself of entangling financial interests before entering the White House. "It may take judgment and planning to comply with the Clause," Sullivan wrote, "but he has no discretion as to whether or not to comply with it in the first instance."
      With lawless arguments such as these, it is no wonder that the disgruntled conservative commentator Max Boot now views Trump's presidency as "criminal" and Barr's "jaw-dropping" performance as reminiscent of Nixonian hubris. With the Mueller investigation over, Boot wrote in a column over the weekend [May 4], "we are left with the dismaying likelihood that the president will now feel emboldened to commit ever greater transgressions to hold onto power."

Saturday, April 27, 2019

On LGBT Rights, a Roll of the Dice at Court

      For several decades now, liberal advocacy groups have been wary of bringing test cases up to the Supreme Court for fear that the built-in conservative majorities would dash their hopes by turning an unsettled legal issue into a nationwide rule on the other side. That concern surfaced quickly after the justices agreed this week [April 22] to hear test cases later this year to determine whether the federal civil rights law enacted in 1964 prohibits employers from discriminating against LGBT employees or job applicants.
      "Supreme Court Will Smash Gay Rights Next Term" was the banner headline on the downbeat column that Elie Mystal, executive editor of the legal affairs blog Above the Law posted from his New York City watching post three hours after the Court's orders were issued in Washington. Mystal acknowledged that the Court had to take the cases, given a circuit split on the issue, but he warned that worse than a circuit split was "the Supreme Court deciding the issue poorly."
      Two other liberal Supreme Court commentators followed within a couple of days to warn more ominously that the Roberts Court conservatives might use the cases to scrap precedents that have extended the Civil Rights Act's prohibition against sex discrimination to cover sexual harassment — whether opposite- or same-sex harassment — and hostile work environments. In his column for the online magazine Slate, Mark Joseph Stern warned that the rulings in the three cases accepted for review "could demolish sex discrimination law as we know it." Ian Milhiser, legal affairs columnist for the progressive news site ThinkProgressMemo, similarly warned that the Court might be "on the cusp of rewriting decades of sex discrimination law" that interpreted the 1964 law to prohibit sexual harassment and gender stereotyping in the workplace.
      All three commentators, friends and colleagues of mine, argue that the provision in the 1964 law's Title VII that prohibits discrimination "on the basis of sex" naturally and inevitably prohibits discrimination on the basis of sexual orientation or gender identity. But they all fear that the five Roberts Court conservatives, including the chief justice himself, will reject what has become a jurisprudential consensus on a broader understanding of the law.
      With all that doom and gloom, the New York Times' former Supreme Court correspondent, Linda Greenhouse, stepped in to argue against making "a snap judgment" about the outcome of the cases before merits briefing even begins. Greenhouse analyzed the justices' protracted consideration of the cases before granting certiorari as a sign that, in fact, the conservative bloc's minds may not be fixed on ruling against LGBT rights.
      As a reminder, Title VII law broadly prohibits any job-related discriminatory treatment "on the basis of [an] individual's race, color, religion, sex, or national origin" (emphasis added.). The late-added prohibition against sex discrimination, intended by opponents as an impossible-to-swallow poison pill, was debated in Congress only cursorily before being signed into law as the first of the three major civil rights laws enacted in the mid-1960s.
      No one can seriously argue that Congress intended the law to protect gay men, lesbians, or transgender individuals against discrimination in the workplace. Gay rights advocates lobbied for years in Congress and in state capitals to add sexual orientation and gender identity to anti-discrimination laws with mixed results before concentrating their efforts on achieving their goal through the courts.
      By now, however, dozens of state and federal courts, including two of the federal circuit courts of appeals, have ruled that way, according to a compilation by the federal Equal Employment Opportunity Commission (EEOC). The judges who have adopted that position include a number of well-known conservatives, as Stern and Greenhouse both note. Greenhouse notes as one example that Judge José Cabranes concurred in the Second Circuit decision now under review by stating matter-of-factly that sexual orientation "is a function of [an individual's] sex."
      The plaintiffs in the three cases represent two of the initials in the LGBT alphabet. The former New York City skydiving company Altitude Express fired instructor Donald Zarda in 2010 after he sought to reassure a female customer by telling her that he was gay; he died four years later in an accident and the case, Altitude Express Inc. v. Zarda, is now litigated by his sister and his former partner. Gerald Lynn Bostock, petitioner in Bostock v. Clayton County, Georgia, says the county's juvenile court system fired him in 2013 on a pretext after supervisors learned of his participation in gay community activities.
      The EEOC is representing the interests of the plaintiff in the third case, R.G. and G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission: Amiee Stephens, a transgender woman, who was fired by a Detroit-area funeral home after reporting for work post-transition dressed in women's clothes.  Greenhouse spotted an encouraging sign in the Court's rephrasing of the question presented in the case to include whether Title VII "prohibits sex stereotyping . . . "
      With no inside information on the justices' months-long deliberation before teeing up the cases, the best that can be said now is that LGBT advocates are hoping for a favorable roll of the dice. They have been in this situation before. In 1986, a test case on anti-sodomy laws turned into the unfavorable, later-overruled decision in Bowers v. Hardwick upholding those laws. Four years ago, however, they marked their greatest legal victory to date with the Court's 5-4 decision in Obergefell v. Hodges (2015) guaranteeing marriage rights to same-sex couples nationwide.
      Justice Anthony Kennedy's retirement from the Court leaves LGBT rights advocate without their most effective ally among the nine. The four liberal justices can be counted on to support LGBT rights in the new cases, but the five conservatives — including Kennedy's successor, Brett Kavanaugh — have no record of supporting LGBT protections in any of their prior cases.
      Roberts' impassioned dissent in the marriage equality cases casts a dark cloud over hopes that he might help form a five-vote majority for LGBT rights in the new cases. But the doomsaying from liberal commentators makes clear this much: a ruling to limit Title VII protections for LGBT employees will come, if it does, at the expense of the conservatives' professed commitment to "plain text" statutory interpretation and respect for precedent. 

Sunday, April 21, 2019

With Trump's Lies Detailed, No Charges, No Exoneration

      Lies, lies, lies, and more lies. As president, Donald Trump's lies number in the thousands, according to the fact-checking news site PolitiFact. Now, thanks to the Mueller Report, we know that all the president's men are liars too — and White House press secretary Sarah Huckabee Sanders as well.
      With Trump complaining all the while about how long the special counsel's investigation was taking, several individuals associated with the Trump campaign were lying to FBI agents about the extent of their contacts with Russian-affiliated individuals. The lies "materially impaired the investigation," the 448-page report notes at page nine of the executive summary.
      Trump himself lied on several occasions as he sought to conceal the extent of his efforts to derail — or, in legal parlance, obstruct —  the special counsel's investigation. Trump lied, the report concludes, when he denied news reports that he had instructed White House counsel Don McGahn to fire Robert Mueller as special counsel.
      The Mueller Report cites Trump's purported directive as one of the ten episodes it identified as suggesting obstruction of justice. McGahn refused what he called a "crazy shit" directive. Trump's denials notwithstanding, McGahn's accounts of the after-hours telephone conversation were consistent and corroborated by his notes, according to the report.
      Sanders was fingered for one notable lie, which was also aimed at concealing Trump's obstructive efforts. She lied in the White House briefing room when she claimed to have heard from "countless" FBI agents voicing a lack of confidence in the fired FBI director James Comey. Sanders conceded to the special counsel's office that she had "no basis" for a statement that, in context, supported what was then Trump's explanation for firing Comey.
      Asked on Friday [April 19] by Good Morning America's George Stephanopoulos to explain herself, Sanders minimized the lie by describing it as an unscripted "spur of the moment" reply to a reporter's question. Put differently, Sanders instinctively makes up stuff as needed to deflect reporters' questions. As of the weekend,  Sanders appeared to be at no risk of admonition or dismissal for this lie or any of her others.
      Attorney General William Barr, still new to Trump's orbit two months after his party-line Senate confirmation, added to the Trump playbook of deception and misdirection with a 20-minute statement about the Mueller Report before it was even released. Once released, the report showed that Barr misled or flatly lied in among other remarks depicting Trump as cooperating completely with the investigation and in describing Mueller's decision not to seek to indict the president for obstruction of justice.
      Short of complete cooperation, Trump declined the special counsel's request for an in-person interview and gave written answers that the report describes as incomplete and filled with claimed lapses of recollection. Mueller considered a subpoena to force the president to testify under oath but backed off rather than take on a protracted legal fight.
      Barr was also misleading in suggesting, just as he had done in his initial summary of the report a week earlier, that Mueller had left it up to him to determine whether Trump could be indicted for obstruction. Instead, Mueller bowed to the never-tested Office of Legal Counsel memo that the president is not subject to indictment while in office and followed by saying that it was up to Congress to decide what to do. "We concluded that Congress has authority to prohibit a President's corrupt use of his authority in order to protect the integrity of the administration of justice," the report states.
      Barr misquoted the report when he said it found "no collusion" between the Trump campaign and the Russians. To the contrary, the report specified that "collusion" has no legal meaning and concluded more tentatively. "The investigation did not establish that the Campaign coordinated or conspired with the Russian government in its election-interference activities," the report states.
      Still, Barr deserves some credit for congratulating the special counsel's office for confirming what Trump has never acknowledged: the systematic efforts by Russian agents to interfere in the 2016 presidential election. With that said, Barr nevertheless passed lightly over what the report calls "numerous links between the Russian government and the Trump campaign."
      As the nation's chief law enforcement officer, Barr might have been expected to highlight what the special counsel's office actually accomplished by way of prosecutions. That record puts the lie to Trump's repeated description of the investigation as a witch hunt. In fact, five Trump associates have already pleaded guilty to or been convicted of lying to the FBI or Congress: former campaign chairman Paul Manafort, former campaign advisers Rick Gates and George Papadopoulos, former national security adviser Michael Flynn, and Trump's former personal attorney Michael Cohen. Meanwhile, Trump's close associate Roger Stone awaits trial on charges of making false statements.
      The report lists Trump's false pre-election denials of the links between his campaign and the Russians as the beginning of his arguably obstructive conduct followed by, among other actions, the firing of Comey and the thwarted effort to remove Mueller. With those episodes detailed, the report explicitly avoids exonerating Trump, the president's claims to the contrary notwithstanding: "[I]f we had confidence after a thorough investigation of the facts that the President did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment."

Saturday, April 13, 2019

At Southern Border, Malign Neglect for "Crisis"

      The so-called crisis at the United States' southern border is a challenging policy issue that President Trump has exaggerated for political purposes and that his administration has mishandled through legal mistakes and administrative indifference.
      In this, the most lawless presidency in U.S. history, news of another Trump administration policy initiative ruled illegal by a federal judge provokes nothing more than a "dog-bites-man" reaction. The administration's plan to send border-crossing asylum applicants back to Mexico was ruled late last month [March 27] to run afoul of immigration law and to have been adopted without following proper administrative procedure.
      Meanwhile, the Department of Homeland Security, the umbrella Cabinet-level department responsible for immigration and other important national security issues, has an acting secretary after Trump eased Kierstjen Nielsen out of the post. Nielsen resigned this week [April 7] under duress, according to anonymous friends quoted in various news accounts, after drawing Trump's scorn for nixing some of his tough-talking policy ideas as contrary to law.
      Trump has been whipping up hysteria about the growing number of migrants seeking asylum at the southern border ever since the months leading up to the 2018 midterm elections. In demagogic rhetoric, Trump tried with only limited success to whip up his political base by depicting the refugees fleeing violence and disorder in their Central American homelands as would-be invaders.
      Admittedly, the growing number of refugees at the border pose difficult challenges for an immigration system overburdened along the 2,000-mile long southern border and also in U.S. immigration courts. With 424 judges, immigration courts currently have a backlog of 850,000 cases. Asylum cases contribute to that backlog, but they account for fewer than one-third of the total, according to a report published last fall by the pro-immigration Migration Policy Institute.
      The institute's 35-page report, coauthored by Doris Meissner, the Clinton administration's commissioner of what was then the Immigration and Naturalization Service (INS), sought to cut through the political divisions on the issue by proposing a package of administrative steps to reduce the now customary long wait times in resolving asylum cases. The key to the streamlining package is to get more cases decided administratively within the U.S. Citizenship and Immigration Services (USCIS) asylum division without bucking them to the courts.
      The report notes that the backlog of asylum cases was reduced from more than 400,000 in the mid-1990s to fewer than 100,000 from 2005 through 2014, thanks in part to a doubling of the number of asylum officers within USCIS. The system had been "fair, timely, and well managed," the report concludes, until it fell behind as the number of asylum applicants increased fivefold from 28,000 in 2010 to more than 140,000 in 2017.
      The customary delays of anywhere from two to five years create what the report calls "incentives for individuals without qualifying claims to apply" because they can remain within the United States and perhaps obtain work authorizations while their cases are pending. In the meantime, individuals with qualifying claims for asylum wait in the queue. The results, the report concludes, "compromise both humanitarian protection and immigration enforcement missions."
      Francis Cissna, the Trump administration's USCIS director, spoke favorably about the institute's report at a program it cosponsored in November at Georgetown Law School. But Sharon Pierce, a policy analyst who works with Meissner at the institute, says they have heard nothing concrete from the administration since then.
      "The Trump administration is not interested in solving the problem," Sen. Chris Van Hollen, a Maryland Democrat, remarked on MSNBC on Friday [April 12]. "They're much more interested in the politics of it."
      The administration is focused not on making the system work better but making it tougher. Thus, Attorney General Jeff Sessions instituted a major policy change during his tenure at the Justice Department by eliminating domestic or gang violence as grounds for asylum. As a result, the percentage of asylum applications approved has fallen by more than half from close to 50 percent to less than 25 percent.
      Nielsen announced another policy change in December. The so-called Migrant Protection Protocols provided that asylum applicants apprehended after illegal entry would be returned to Mexico instead of being detained for expedited removal proceedings. Nielsen called it "an historic action to confront illegal immigration," but U.S. District Court Judge Richard Seeborg called it illegal in a 27-page ruling  issued early this week [April 8].
      Individual plaintiffs in the case, originally styled as Innovation Law Lab v. Nielsen, presented what Seeborg called "uncontested" evidence that they fled their homes in El Salvador, Guatemala, and Nicaragua to escape "extreme violence," including rape and death threats. He found that returning them to Mexico ran counter to an international protocol codified as U.S. law that prohibits returning aliens to "places where they face undue risk to their lives or freedom."
      As with the unbuilt border wall, Trump prefers sounding tough to being effective. He threatened to close the southern border completely, deterred not by Nielsen's warning that the move would be illegal but by predictions that it would result in economic chaos. Among other steps to address the problem, one would be to conduct asylum interviews in the migrants' home countries instead of at the border. Increased aid to those countries might help, but Trump instead threatens to cut it off.
     To make it worse, the administration's "zero tolerance" policy of arresting all illegal border crossers results in a true humanitarian crisis marked by kids locked up in cages and aduilts jailed in primitve conditions.So far, the administration's policy of malign neglect appears to be having no effect other than making the non-crisis worse.

Sunday, April 7, 2019

At Supreme Court, Open Door for Gruesome Executions

      Raymond Bucklew may deserve to die for the violent crimes he committed 30 years ago as his girlfriend was breaking up with him. But he does not deserve to die a torturous death as the state of Missouri carries out the legally upheld death sentence.
      The Supreme Court has just used Bucklew's case, however, to open the door to executions in the future that will mock the Eighth Amendment's prohibition against "cruel and unusual punishments." The 5-4 majority in Bucklew v. Precythe has apparently adopted a legal rule previously crafted only by Justice Clarence Thomas that the state can use a method of execution with a substantial risk of severe pain during the procedure as long as the state does not deliberately intend to inflict unnecessary pain.
      Bucklew's case drew only limited attention as he argued through three levels of federal courts over the past five years that he has a rare medical condition that will result in severe pain as he lies dying during a lethal injection. But Justice Neil Gorsuch's majority opinion turned the medical oddity of Bucklew's case into an invitation for gruesome deaths for condemned inmates in the future.
      Bucklew has a rare medical condition — technically, cavernous hemangioma — characterized by the formation of huge clumps of blood vessels in his head, neck, throat, and airway. That condition, he argued on the basis of detailed medical evidence presented in a federal court trial, would interfere with the sedative used in a lethal injection and in effect would cause him to suffocate to death on his own blood.
      "[T]he Eighth Amendment does not guarantee a prisoner a painless death . . . ," Gorsuch wrote in a critical part of the 31-page opinion rejecting Bucklew's claim. Gorsuch pivoted from that unremarkable statement to quote Thomas's passages from two prior decisions that would disapprove of only those methods of execution that "superadd terror, pain, or disgrace" in carrying out the death sentence.
      Thomas wrote that passage for the first time in an opinion joined by only one other justice, the late justice Antonin Scalia, in rejecting a Kentucky inmate's Eighth Amendment challenge to the state's three-drug lethal injection protocol. Chief Justice John Roberts' plurality opinion in Baze v. Rees (2008) set out a different test that death row inmates can challenge a method of execution if it carries a substantial risk of severe pain during the procedure.
      Gorsuch in effect incorporated Thomas's test, which garnered only two votes, on the ground that those two votes were necessary for the majority result in Baze. It was, as Slate's Supreme Court correspondent Mark Joseph Stern called it in a critical article, a remarkable "sleight of hand." Worse, it amounted to jurisprudential alchemy by converting a minority view into supposedly authoritative precedent.
      "Neil Gorsuch Just Made Death Worse," was the headline on a strongly argued critique
that Elie Mystal,  managing editor of the legal affairs blog AbovetheLaw, wrote for The Nation. "In an appalling majority opinion," the deck headline added, "Gorsuch endorses pain-filled deaths for people subjected to capital punishment."
      Under Baze, an inmate challenging a method of execution must offer a "feasible and readily implemented alternative method" that would reduce the risk of severe pain. Bucklew complied with that bizarre requirement by proposing lethal nitrogen gas; the state's lawyers answered that nitrogen gas is an untested method that no state has adopted.
      Gorsuch, it will be recalled, faced his most difficult hurdle in his Senate confirmation hearing in April 2018 for his lack of sympathy to the "frozen trucker" who was fired for driving his cab with inoperable heater to a place where he could escape from subfreezing temperatures. Thus, it is no surprise that Gorsuch had no sympathy for Bucklew, who shot and killed his girlfriend's male companion and then abducted her at gunpoint and raped her at a distant location.
      Gorsuch found Bucklew's evidence on the risks of Missouri's planned lethal injection too weak to avoid summary judgment at the trial level in the state's favor. Writing for the four liberal dissenters, Justice Stephen G. Breyer argued correctly butto no avail that Bucklew had "easily established a genuine issue of material fact regarding whether an execution by lethal injection would subject him to impermissible suffering."
      Not content with condemning Bucklew to a painful death, Gorsuch went on to criticize as well the cumbersome and treacherous procedures that death penalty lawyers must master and navigate to try to ensure that capital punishment is carried out, if at all, reliably and fairly. In truth, it is not, as seen in the scores of death sentences reversed over the past two decades and in the skewed racial and ethnic demographics of death rows nationwide.
      Judges, Gorsuch wrote in closing, should ensure that death penalty challenges are "resolved fairly and expeditiously" and should "police carefully against attempts to use such challenges as tools to interpose unjustified delay." Justice Sonia Sotomayor aptly chided Gorsuch for adding "inessential" dicta to an already contentious decision.
      "There are higher values than ensuring that executions run on time," Sotomayor wrote. "If a death sentence or the manner in which it is carried out violates the Constitution, that stain can never come out. Our jurisprudence must remain one of vigilance and care, not one of dismissiveness."

Sunday, March 31, 2019

Trump's "Mass Deception" on Mueller Report

      Special counsel Robert Mueller dutifully submitted a 400-page report to Attorney General William Barr this month [March 23], but one week later Mueller is the only major figure in this constitutional melodrama yet to be heard from. President Trump and Barr have given differing interpretations of the report, and so too Capitol Hill Republicans and Democrats along with Trump's supporters and opponents all across the country.
      Trump, who has not read the report, called it a "total exoneration" in remarks from the White House lawn and in a gloating harangue to a campaign-style rally in Grand Rapids, Michigan, on Thursday [March 28]. Barr, who has read the report, had previously stated in a four-page letter [March 24] that the report "does not exonerate" the president. The fact-checking news site PolitiFact noted that discrepancy as one of Trump's misstatements to the crowd along with the false claim that the investigation into the Trump campaign's contacts with the Russians began only after the election and that the investigation had resulted in "framing innocent Americans."
      One week out, the battle lines have been drawn in what Brookings Institution expert Benjamin Wittes calls "the war of the narratives." Mueller's report will remain unseen for a couple of weeks as Barr, who apparently is quicker at reading than redacting, blacks out grand jury material, classified information, and any material bearing on the spinoff pending investigations. With the delay, Capitol Hill Democrats are demanding to see "the Mueller report, not the Barr report" and threatening to subpoena the document itself if necessary.
      Wittes, presiding over a panel discussion at Brookings on Thursday [March 28], noted with regret that Mueller had not taken his earlier advice to prepare an executive summary to be released as soon as he had submitted the full report to the attorney general. For now, Trump is winning "the war of the narratives" by wielding his patented WMD: "weapons of mass deception." Barr too is deceiving the public, according to one of the Brookings experts, by defending the decision that Mueller left to him essentially to absolve Trump of any obstruction of justice.
      Barr based his decision in part on the perverse logic that "many" of Trump's arguably obstructive actions "took place in public view"—thus ratifying Trump's campaign-time boast that he could shoot someone in full public view and get away with it. Barr also said that Mueller had "recognized" that the evidence "does not establish that Trump was involved in an underlying crime related to Russian election interference" and that "the absence of such evidence bears upon the President's intent with respect to obstruction."
      Barr said he reached this conclusion, in consultation with deputy attorney general Rod Rosenstein on the merits without regard to any question of whether the president is subject to a criminal indictment. But it must be noted that Barr had already absolved Trump of obstruction in the long memo he wrote months before his appointment as attorney general. House Speaker Nancy Pelosi complained that Barr was now doing exactly what Trump intended in choosing him to lead the Justice Department—that is, "to make sure the president is above the law."
      At the Brookings panel, one member of the audience asked whether it was "widely accepted" that there could be no obstruction of justice charge without proof of an underlying crime. "That's not the law," Mary McCord, a former Justice Department official now teaching at Georgetown Law School, responded. "Not only is it not widely accepted: it's not the law."
      Wittes and other panelists confessed some surprise that Mueller had in effect passed the obstruction issue to Barr without recommendation. "It's clear that there was considerable obstruction of justice," Wittes remarked in the opening. With the report still unseen, Wittes's Brookings and Lawfare colleague Susan Hennessey agreed. "They found lots and lots of stuff but just a hair below the threshold of a criminal indictment," she said.
      By now, much of the "stuff" that must be in Mueller's report is well known and no longer in dispute: the Trump Tower meeting that Donald Trump Jr. took with Russian agents promising dirt on Hillary Clinton; the "back channel" communications link with the Russians that son-in-law Jared Kushner wanted to establish at the Russian embassy itself; national security adviser Michael Flynn's pre-inauguration meeting with Russians to talk about easing U.S. sanctions. On and on.
      House Intelligence Committee Chairman Adam Schiff, under pressure to resign from Trump and the committee's Republicans, ran through the whole list in a dramatic reading as the committee opened a hearing on Russian interference in the election last week [March 28]. He called it "evidence of collusion" and challenged the Republicans for turning a blind eye. "I don't think it's OK," Schiff said. "And the day we think it's OK is the day we have lost our way."
      Mueller's supposed "witch hunt" ended with a string of guilty pleas, convictions, and still pending indictments against Trump associates and campaign aides, such as former campaign chairman Paul Manafort and confidante Roger Stone, and a dozen Russian agents, admittedly beyond the reach of U.S. law. The report presumably lays all that out, but for now Trump and his supporters are winning the war of the narratives while the other side waits, disarmed, for a truer accounting of the facts.

Sunday, March 24, 2019

At Supreme Court, Racial Justice an Elusive Goal

      Keith Tharpe and Curtis Flowers are two African American defendants convicted of capital murder and sentenced to death in southern states after trials infected with racial bias. The Supreme Court considered both of their cases last week by ending Tharpe's effort to overturn his conviction [March 17] while appearing receptive during arguments [March 19] on Flowers' plea for a new trial based on the white prosecutor's blatant racial bias in jury selection.
      The two Supreme Court cases, with one loss for racial justice and not yet a vindication for racial justice in the other, are the most recent evidence that racial discrimination remains widespread in criminal justice systems — certainly in the South and just as certainly elsewhere. Dating as far back as the Scottsboro Boys case in the 1930s, the Supreme Court has stood guard against the most blatant examples of racial injustice, but too often the present-day Court is either unwilling or unable to ensure the goal carved in the pediment above its main entrance: Equal Justice Under Law.
      To their credit, eight of the nine justices were all evidently disturbed by the blatant racism practiced by District Attorney Doug Evans in his protracted efforts over six trials dating over 13 years to convict Flowers of killing four people in 1996 at the small-town store where Flowers had formerly worked. In two of those trials, Evans, the longtime district attorney for a seven-county judicial district in north central Mississippi, was found to have violated the Supreme Court-established rule against excluding potential jurors because of their race; a third conviction was overturned because of other prosecutorial misconduct.
      The two other previous trials ended in mistrials with the predominantly white juries unable to agree on a unanimous verdictthus, suggesting that the evidence against Flowers was less than clear-cut. Those trials with hung juries were the only ones with more than one African American jurorthus, suggesting the reason for Evans' unrelenting efforts to use so-called peremptory challenges to keep blacks off the jury.
      The 2010 conviction under review in Flowers v. Mississippi came after a trial in which Evans used all but one of his six peremptory challenges to strike black potential jurors. Viewed in isolation, Evans' actions in the sixth trial would seem less than remarkable to courthouse reporters with experience in covering racially charged criminal trials in the South or elsewhere.
      White prosecutors routinely question black jurors more aggressively than white jurors to try to develop what can pass for "race-neutral" reasons for keeping blacks off juries. The Supreme Court's precedent-setting decision in Batson v. Kentucky (1986) held that exercising peremptory challenges against potential jurors based on their race in state court trials violates the Fourteenth Amendment's Equal Protection Clause.
      Over time, lower courts have developed and the Court has accepted a three-part test to determine whether Batson has been violated. The party raising the issue, normally a black defendant, has the initial burden to show a prima facie case of discrimination; with that standard met, a court can order the other party, normally the prosecutor, to provide race-neutral reasons for excluding black jurors. The burden then shifts back to the defendant to argue and prove purposeful discrimination.
      As a practical matter, trial judges routinely defer to prosecutors' explanations: Evans may be one of the few prosecutors ever to have two adjudicated Batson violations on his resume. But Evans has been consistent in racial profiling of potential jurors, according to statistical evidence compiled by American Public Media reports. As part of a path-breaking podcast, the APM reporters found that in 225 trials in Evans' tenure, he had used peremptory challenges to strike 49.81 percent of black jurors — nearly half —  but only 11.21 percent of white jurors.
      Representing Flowers, the NAACP Legal Defense Fund's lawyer Sheri Lynn Johnson opened her argument on Wednesday by saying that the "only plausible explanation" for Evans' conduct over six trials was that he was pursuing "an unconstitutional end . . . to seat as few African American jurors as he could." From the bench, Justice Samuel A. Alito Jr., perhaps the most prosecution-oriented of the five conservatives, called the history of the case "very troubling," but he joined later with others in struggling for a general rule to craft for Batson cases in this most discreditable of cases.
      By the end of the hour-long argument, eight justices, all but Clarence Thomas, had registered their concerns about Evans' conduct. But with Johnson at the lectern for rebuttal, Thomas asked a question for the first time in three years: a gotcha question aimed at eliciting Johnson's admission that Flowers' trial counsel had exercised her peremptory challenges to exclude white, not black, jurors.
      Two days before the Flowers argument, the Court had turned aside Keith Tharpe's plea for a new trial based on late-developed evidence that one of the jurors in his capital murder trial in Jackson, Georgia, in 1991 had made blatantly racist statements in jury room arguments for sentencing Tharpe to death. Without dissent, the justices declined on procedural grounds to review the most recent federal appeals court decision to let the conviction and death sentence stand. 
      Justice Sonia Sotomayor went along with shelving Tharpe's case but only after saying she was "profoundly troubled" by the facts of the case. Quoting from a prior decision, she ended with a blunt warning: "The work of 'purg[ing] racial prejudice from the administration of justice' is far from done."

Sunday, March 17, 2019

At Harvard, a #MeToo Clash With Lawyers' Role

      The #MeToo Movement is colliding on the Harvard University campus with the time-honored tradition in American law that lawyers do not shirk from representing unpopular clients or unpopular causes. The clash emerged as Ronald Sullivan, a Harvard Law School professor and resident faculty dean of one of Harvard's undergraduate houses, came under fire for joining the dream team of lawyers representing the Hollywood producer Harvey Weinstein in his upcoming criminal trial on sexual misconduct charges.
      Sullivan, director of the law school's criminal justice institute and the first African-American to serve as faculty dean of one of Harvard's undergraduate houses, is under pressure on the Cambridge, Mass., campus from among others a student group critical of Harvard's record in combating sexual misconduct. Some students have called for him to step aside from his role as Winthrop House faculty dean, but 52 of Sullivan's law school colleagues defended his participation in the Weinstein case in a joint letter and warned the college administration against dismissing him from his residential deanship.
      Sullivan's on-campus critics are right, however, in seeing a conflict in the dual roles of defending Weinstein and ensuring a supportive climate on campus for victims of sexual misconduct. Sullivan has added to the conflict with comments denigrating the #MeTooMovement and casting doubt generally on the credibility of accusations of sexual misconduct. That conflict will inevitably grow if Sullivan emerges as the public voice for challenging the credibility of all of Weinstein's accusers.
      The tradition of representing unpopular clients dates back as far as John Adams' defense of the British soldiers accused in the Boston Massacre despite Adams' anti-royalist views. The lawyers' obligations have been celebrated not only in legal ethics classes but also in fiction and film adaptations such as To Kill a Mockingbird and John Grisham's A Time to Kill.
      The heroes of those two films, Atticus Finch and Jake Tyler, portrayed by Gregory Peck and Matthew McConaughey respectively, represented wrongly accused black defendants in predominantly white towns in the racially polarized South. Real-life lawyers, black and white, similarly risked public disapproval and scorn in representing black defendants and white civil rights crusaders in the civil rights era. So too the left-leaning lawyers who represented public figures and government officials caught up in the anti-communist McCarthyite hysteria of the 1950s.
      Sullivan has wrapped himself in this tradition ever since the New York Post first reported in mid-January that he was joining two high-profile criminal defense attorneys in representing Weinstein in his forthcoming criminal trials. Weinstein is admittedly unpopular: he has been public enemy number one for the #MeTooMovement ever since the bushel basket of sexual misconduct accusations began to surfaced in October 2017.
      Weinstein does not lack, however, for top-notch lawyers willing to provide him the kind of defense needed to assure a fair trial. Before enlisting Sullivan, Weinstein had already secured the services of two of the nation's most prominent and successful criminal defense lawyers: New York's José Baez and Denver's Pamela Mackey. Baez is best remembered for his successful defense of Casey Anthony in the 2011 trial for murder in the drowning death of her young daughter. Mackey gained national prominence for successfully defending the basketball star Kobe Bryant against rape charges in 2003.
      Sullivan has paid his dues in reform-minded criminal defense work by, for example, helping to design an indigent defense system in Louisiana after hurricane Katrina and helping to build a conviction integrity unit for the Brooklyn district attorney's office. He has represented in sexual misconduct cases accusers and defendants alike. But with no compelling need for his services in Weinstein's case, cynics are entitled to view the reasons for Sullivan's participation to be less than idealistic: the fee and the publicity.
      All of Sullivan's experience and good deeds cannot offset the discomfort that any sexual misconduct victims among his undergraduate charges would feel in bringing their cases to Sullivan as their resident faculty dean. By now, more than 300 students have signed a petition that cites this issue as their reason for calling him to step aside from his Winthrop House role.
      Sullivan has acknowledged the concern at least in part by designating the house's female resident dean as the point person for receiving complaints of sexual misconduct. But he has also cast himself as the innocent victim of students unmindful of the presumption of innocence and the importance of legal representation for even the worst of the worst of criminal defendants. He has complained of what he called incendiary coverage of the issue by the student newspaper, the Harvard Crimson, including a signed op-ed by two undergraduates calling for him to be replaced as Winthrop House dean.
      The Harvard administration has responded to the controversy by instituting a so-called "climate survey" of Winthrop House's several hundred undergraduates. Along with playing the "blame the messenger" card, Sullivan is playing the race card by noting that the college has never before conducted a similar survey to check on a white faculty dean's performance. The controversy took an ugly turn recently when someone painted the graffito "Remove Sullivan" on one of Winthrop House's redbrick walls.
      The controversy can only turn uglier for undergraduates and Sullivan alike once he engages actively in Weinstein's defense. For all concerned, the best course now is for Sullivan to withdraw and turn full attention to his full-time job as professor and in loco parentis to his students.

Sunday, March 10, 2019

In Census Case, No Basis for Citizenship Question

      Wilbur Ross's various ethics issues as secretary of Commerce place him among a gaggle of President Trump's discreditable Cabinet members. But Ross may belong at the top of that list now that two federal judges have found that he lied to Congress and violated executive branch regulations, congressional statutes, and at least one constitutional clause in his obsessive effort to add a citizenship question to the 2020 national census.
      Ross began hectoring his staff within his first weeks at Commerce about adding a citizenship question to the short-form Census questionnaire due to be distributed to all U.S. households early next year. He needed a full year in office before getting his ducks in a row to make the decision in a memorandum dated March 26, 2018. He had been egged on by, among others, the former White House aide Steve Bannon, the vote fraud-obsessed former Kansas secretary of state Kris Kobach, and at least two Republican senators: Arkansas' Tom Cotton and Texas's John Cornyn.
      With no expertise himself in demographics or statistics, Ross persisted in the face of unanimous advice from former Census Bureau directors, academic demographers, and the American Sociological Association that a citizenship question will inevitably result in an undercount of several millions among individuals in hard-to-count group such as immigrants and non-English speakers. The resulting undercount could have real-world consequences for some states and some localities in the form of reduced federal funding or proportionate reduction in local funding from state coffers.
      Federal court judges in New York and San Francisco have blocked Ross's efforts so far in suits brought respectively by a coalition of 18 states, 15 municipalities, and various immigration advocacy groups; and by the state of California, the city of San Jose, and the Black Alliance for Immigration. The Trump administration fast-tracked the New York case, Department of Commerce v. New York, to the Supreme Court by asking the justices to schedule the appeal for argument in April without waiting as usual for a ruling by a federal appeals court.
      Trump administration officials and supporters have correctly noted that the once-every-decade census required under the Constitution to apportion seats in the U.S. House of Representatives included questions about citizenship beginning in 1820 and continuing until 1950. The longer-form American Community Survey, distributed to randomly selected households, does include a citizenship question, but the Census Bureau, part of the Commerce Department and thus subject to Ross's direction, dropped the citizenship question from the more comprehensive survey by the 1960 census because of evidence that it would reduce participation and thus result in a significant undercount.
      Judge Jesse Furman in New York was the first of the two Obama-appointed judges to find Ross's decision to add the citizenship question illegally "arbitrary and capricious" as violating not only the Administrative Procedure Act (APA) but also a Census Act provision enacted in 1976 to require three years' prior notice to Congress before adding questions to the all-household short-form questionnaire. Furman's admittedly long 277-page decision issued on Jan. 15 opened by noting that the government's own experts and documents confirmed that a citizenship question "will result in a significant reduction in self-response rates among noncitizen and Hispanic households."
      Furman, formerly an aide to the Republican attorney general Michael Mukasey and later a clerk to the centrist-leaning federal appeals court judge José Cabranes and Supreme Court justice David Souter, also found Ross's decision in violation of guidelines issued by the Bush administration's Office of Management and Budget (OMB) in 2006. Those guidelines, applicable to all federal statistical agencies, impose among other requirements a prohibition against "political and other undue external influence in developing, producing, and disseminating statistics."
      The plaintiffs in the New York case also alleged that Ross's decision amounted to "invidious discrimination" in violation of the equal protection component of the Fifth Amendment's Due Process Clause, but Furman found they had not produced sufficient evidence on that count. On the other hand, Furman found that Ross had violated the APA in any number of respects by failing to follow required procedures and by making a decision that was "unsupported by, or even counter to, the evidence before the agency."
      Judge Richard Seeborg's 126-page decision in the California case, issued last week [March 6], went one step beyond Furman's by finding Ross's decision to violate the requirement in the Constitution's Enumeration Clause (Art. I, sec. 2, cl. 3) for an "actual enumeration" of inhabitants every 10 years to apportion members of the House of Representatives among the states. Seeborg, like Furman a former federal prosecutor appointed to the bench with no history of liberal Democratic politics, went further than Furman in refuting one of the justifications Ross claimed for his decision.
      Ross claimed, in testimony before a congressional committee, that he added the citizenship question at the request of the Justice Department, which purportedly saw the information as useful in enforcing the federal Voting Rights Act. In fact, the then attorney general Jeff Sessions forwarded the request only after Ross and his staff had repeatedly importuned Justice to make it.
      With all these legal defects, Ross's decision ought not stand after serious judicial review at the Supreme Court. With two Trump appointees added to a Court already dominated by executive branch-leaning justices, however, that outcome of the case is far from certain.

Sunday, March 3, 2019

Atheists Get No Respect in Peace Cross Case

      Supreme Court justices struggled last week [Feb. 27] with the issue of how to reconcile the constitutional prohibition against establishment of religion with the prominent display of a 40-foot Latin cross on a public right of way to memorialize fallen U.S. soldiers from the First World War. By the end of the expanded 70-minute oral argument in the Peace Cross case, a majority of justices clearly had no inclination to interfere with the war memorial cross at its present location in the middle of a busy traffic intersection in Prince Georges County outside Washington, D.C. 
      The atheists and nonbelievers who brought this lawsuit seven years ago were fated to lose once it reached a Supreme Court that has been increasingly uninterested in policing the separation of church and state. Still, they might have expected more respectful treatment in oral arguments in American Legion v. American Humanist Association than to hear two of the justices suggest from the bench that they had no business bringing the suit in the first place and were nothing more than obstinate troublemakers. 
      The belittling of the American Humanist Association's suit seeking to move the cross from its present location on property claimed by the National Capital Park and Planning Commission began with the opening words of the American Legion's attorney, the invariably pugnacious conservative Supreme Court advocate Michael Carvin.  The Peace Cross "should be upheld under any sensible Establishment Clause analysis," Carvin told the justices, disrespecting not only the plaintiffs but the two Fourth Circuit judges who found the cross to be an unconstitutional establishment of religion. 
      The Legion and the park and planning commission both base their defense of the cross on the argument that it has, in the words of the commission's attorney former U.S. solicitor general Neal Katyal, "independent secular meaning" as a memorial apart from its religious significance. In their decision in the case, the two-judge majority on the Fourth U.S. Circuit Court of Appeals acknowledged the cross's secular purpose but went on to carefully review the history of the cross and judge it under the Supreme Court's existing precedent: the established if controversial test set out in Lemon v. Kurtzman (1971). 
      The Lemon test has been criticized by a majority of justices over the years, as Justice Neil Gorsuch noted during arguments, but "never at the same time" and thus never overruled. Applying that test, Fourth Circuit judges James Wynn and Stephanie Thacker found in Thacker's detailed opinion that the cross failed the second and third prongs of the test because it would be reasonably seen as endorsing a specific religion and because it resulted in government entanglement with religion. 
      Thacker emphasized that the fundraising for the cross in the early 1920s rested on Christian rather than ecumenical themes and that the dedication and later observances at the memorial have been exclusively Christian. She acknowledged that passive religious displays are given deferential treatment under Lemon but noted that the governmental planning commission has spent tens of thousands of taxpayer dollars on maintenance and upkeep since assuming responsibility for the cross. 
      Instead of Lemon, Carvin urged the Court to apply a more lenient test, drawn from the recent decision in Van Orden v. Perry (2005) to uphold the placement of a Ten Commandments monument on the grounds of the Texas state Capitol, that finds no Establishment Clause violation unless the government is effectively coercing nonbelievers into religious observance. 
      In her turn at the lectern, the humanists' lawyer Monica Miller was forced to spend valuable time defending the decision to bring the suit after the cross had stood, seemingly without controversy, for nearly 90 years. The suit was about nothing more than the atheists' view that the cross was "too loud," Gorsuch suggested.  "Why shouldn't we apply our normal standing rules and require more than mere offense to make a federal case out of these?" Gorsuch asked.
       "I don't think it's mere offense," Miller replied. "We're talking about the government being the speaker and essentially giving you the message as the non-Christian in your community that you are a lesser citizen."
      A few minutes later, Justice Samuel A. Alito Jr. similarly saw no reason for the suit. "In a pluralistic society," Alito remarked, "ordinary people get along pretty well — and are not at each other's throats over religious divisions." As for the need for civility, Miller answered indirectly after exchanges with other justices by noting that she herself had received death threats because of her role in the case and her clients threatened as well.
      By the end of the argument, Court watchers counted no more than two justices, Ruth Bader Ginsburg and Sonia Sotomayor, as probable votes against the cross, with perhaps one of their liberal colleagues, Elena Kagan, but probably not with Stephen Breyer, author of the pivotal opinion in the Ten Commandments case.
      For the majority, however, the case will pose a difficult task of threading a 40-foot cross through the needle of Establishment Clause jurisprudence. The challenge for the assigned author will be to find a "sensible" way, to borrow Carvin's phrase, to find it no establishment of religion for the government to maintain what is concededly the preeminent symbol of Christianity as a memorial to fallen soldiers with none of the symbols of the many other faiths represented in this pluralistic society.

Sunday, February 24, 2019

All Eyes on Roberts as Court's Man in the Middle

       Twice within the span of two weeks, Chief Justice John G. Roberts Jr. joined this month with the Court's liberal justices in rulings over sharp dissents from his conservative colleagues on two of the Court's perennially divisive issues: abortion rights and capital punishment. In both actions, Roberts was reversing his previous positions on the issues — not necessarily because of a change of mind but because of a need to enforce the Supreme Court's precedents on recalcitrant appellate courts down in Texas.
      Roberts' decisive vote in the first of the two cases, June Medical Services v. Gee [Feb. 7], helped block Louisiana for the time being from putting into effect a law regulating abortion clinics identical to a Texas law the Court struck down three years ago. Two weeks later, Roberts sided with the liberal justices in Moore v. Texas [Feb. 19] to spare a Texas inmate from the death penalty by reenforcing the Court's previous ruling in his case two years ago.
      These previously unaccustomed lineups came as Roberts moved into a new role on the new Court created when the hard-line conservative Brett Kavanaugh took his seat in October as successor to the moderate conservative justice Anthony M. Kennedy. With Kennedy's retirement, Roberts now finds himself as the man in the middle between two well-defined ideological blocs of four moderately liberal justices and his four aggressively conservative colleagues.
      The Court's order in the Louisiana abortion clinic case came without any written opinion. The five-justice majority refused the state's request to stay the decision by the Fifth U.S. Circuit Court of Appeals to uphold the law; four justices said they would have granted the stay: Clarence Thomas, Samuel A. Alito Jr., and President Trump's two appointees, Neil M. Gorsuch and Brett Kavanaugh. With no written opinion, it was left to Court watchers, such as the former New York Times reporter Linda Greenhouse, to assume that Roberts acted to protect the Court's authority over lower tribunals. "[C]ircumstances compelled the chief justice to stand up to a stunning act of judicial defiance," Greenhouse wrote in a column on the Times' website.
      Roberts was explicit in the Texas death penalty case in bench-slapping the Texas Court of Criminal Appeals for finding Bobby Moore eligible for the death penalty despite the Court's instructions that the appeals court reconsider the issue. "On remand, the court repeated the same errors that this Court previously condemned . . . ," Roberts wrote in a concurring opinion in the 6-3 decision. Detailing the errors, Roberts added: "That did not pass muster under this Court’s analysis last time. It still doesn’t." In a dissenting opinion, however, Thomas, along with Alito and Gorsuch, complained that the majority had engaged in "factfinding" that the justices usually leave to lower courts.
      The actions gave substance to Court-watchers' speculation that Roberts may use his new position to rein in the conservative bloc's interest in establishing new conservative precedents and discarding or neutering old liberal rulings. And well he might, but Roberts' actions up to now in his 14 terms as chief justice of a majority conservative Court provide limited evidence at most of his favoring institutional stability over conservative ideology.
       Conservatives felt more than disappointed, actually betrayed, seven years ago when Roberts deserted his four conservative colleagues to craft a five-vote majority in National Federation of Independent Business v. Sebelius (2012) to uphold President Obama's Affordable Care Act. Even while upholding the law as a tax, however, Roberts backed up the four conservative justices in their opinion that rejected any authority for Congress to enact the law under its power over interstate commerce.
       Roberts' role in the Obamacare case is the exception that proves the rule. Ever since he took the reins at the start of a new term in October 2005, Roberts has been a consistent vote for leading his conservative colleagues in closely divided, precedent-bending decisions that cheered Republicans and other conservatives on issues ranging from abortion rights and civil rights to campaign finance and gun rights.
       The winds of change could be seen in Roberts's first term as soon as Sandra Day O'Connor's retirement took effect midway through the term in January 2006. With Samuel Alito as O'Connor's successor, the Court reheard arguments in a significant exclusionary rule case, Hudson v. Michigan, that found no need to suppress evidence police found in home search after an acknowledged violation of the so-called "knock and announce" rule.
       The Roberts-Alito Court — with Kennedy succeeding O'Connor as the only justice in the middle — essentially held sway for another decade until the hiatus after Justice Antonin Scalia's death in February 2016. President Obama's two appointments to the Court — Sonia Sotomayor as David Souter's successor and Elena Kagan as John Paul Stevens' successor — may have changed the dynamics among the justices but without changing the balance of power.
       By the time of those appointments, Roberts had already led the Court in a 5-4 decision that limited local school districts' power to design pupil assignment plans to promote racial balancing (Parents Involved in Community Schools v. Seattle School District No. 1, 2007). He also spoke for a 5-4 majority in a decision, Herring v. United States (2009),  that significantly changed the rationale for suppressing evidence after an illegal police search.
       In other decisions, Roberts provided a fifth vote for explicitly overturning precedents despite his professed respect for the principle of stare decisis. He supported the 5-4 decision in District of Columbia v. Heller (2008) to change Second Amendment law to recognize a personal right to possession of firearms. Two years later, he voted with the 5-4 majority in Citizens United v. Federal Election Commission (2010), to overturn two precedents in order to give corporations free rein to spend money on federal election campaigns.
      With that record in mind, two experienced Court watchers are still predicting that Roberts will turn into a judicial pussy cat at times in his newfound role. "We anticipate that the chief justice will sometimes embrace narrow minimalism in order to seek to build a bipartisan consensus," Neal Devins and Lawrence Baum said in a recent interview on SCOTUSblog. They added, nevertheless, a second prediction that Roberts "will back maximalist rulings" on issues where he has "strong legal policy preferences . . . even if those rulings divide the Court's Democrats and Republicans." As President Trump would say, less than insightfully, "we'll see what happens."

Sunday, February 17, 2019

Courts Need to Block Trump's 'End Run' on Constitution

      President Trump knew he was on shaky legal ground when he declared a national emergency in order to build his southern border wall with funds Congress appropriated for other purposes. The Justice Department warned of likely holdups from the inevitable legal challenges in the courts, but Trump went ahead confident of getting a "fair shake" at the Supreme Court with two justices owing their posts to him.
      Opponents had no difficulty in refuting the rationales that Trump claimed for declaring an emergency at the country's southern border and for claiming miles and miles of some kind of barrier as the solution to the smuggling of illegal drugs into the United States. Illegal border crossings in 2016 were 91 percent below the level in 2001, according to the Department of Homeland Security — hardly evidence of a national emergency. And, as several studies have shown, the crime rate for legal or illegal immigrants is lower than the crime rate for native-born citizens — in contradiction of Trump's demagoguery about murderers and rapists flooding into the United States across the southern border.
      In addition, more than 80 percent of the illegal drugs smuggled into the United States enter undetected through official ports of entry, not at the supposedly open southern border. Whether solid concrete or slatted steel, a border wall will have little effect on drug smugglers other than to divert funds from more productive detection and interdiction techniques.
      Tellingly, Trump himself gave the critics legal grounds for attacking his action toward the end of the rambling hour-long announcement of the move in the White House Rose Garden [Feb. 15]. "I could do the wall over a longer period of time," Trump said. "I didn't need to do this, but I'd rather do it much faster."
      Lawyers with Public Citizen included Trump's quote in the 19-page complaint they filed challenging the president's move hours later in federal district court in Washington. The suit, filed as Alvarez v. Trump in behalf of South Texas landowners and the local Audubon Society chapter, traces the history of Congress's refusal in December and again in February to approve the $5.7 billion Trump requested to construct the wall.  "[A] disagreement between the President and Congress about how to spend money does not constitute an emergency authorizing unilateral executive action," the suit states.
      Trump helped critics even more by his own actions after signing the declaration back in the Oval Office. Critics quickly noted on Twitter and elsewhere that Trump followed the declaration of a national emergency by flying to Florida for golf. Other critics took to Facebook to mark themselves "safe" during the national emergency on the southern border.
      However weak and laughable Trump's action may be, the legal challenge is by no means a slam dunk. The National Emergencies Act of 1976 establishes a procedure for the president to follow but imposes no specific requirements for a supposed national emergency. On that score, even critical observers speculated that federal courts were unlikely to second-guess the president's determination.
      The administration is more vulnerable, observers agree, in taking money that Congress has appropriated to the Defense Department for stated purposes and redirecting the funds to a purpose that Congress has specifically rejected. That would seem to run afoul of the leading Supreme Court precedent on how to resolve a clash between Congress's Article I powers and the president's Article II powers.
      The United States was at war in Korea in 1952 when the Supreme Court laid down the principle in Youngstown Sheet & Tube Co. v. Sawyer (1952) that the president has no inherent or emergency power to contradict a law enacted by Congress. President Harry Truman had ordered his secretary of Commerce to seize the nation's steel mills to keep them operating despite a strike, but the Court found he had no authority to do so after Congress had specifically refused to grant the president that power to deal with nationwide strikes.
      Justice Robert H. Jackson's famous concurring opinion in the case acknowledged what he called a "zone of twilight" of presidential authority if Congress has not addressed a particular issue. But the president's power "is at its lowest ebb," Jackson concluded, "[w]hen the president takes measures incompatible with the express or implied will of Congress."
      Trump's move also seems to run afoul of the Supreme Court's more recent decision to bar the president from exercising a so-called line item veto. The 6-3 decision in Clinton v. City of New York (1998) found that the president has no power to pencil out individual budget items from a law as passed by Congress even if Congress itself had passed a law authorizing that procedure. Trump's plan to take $6 billion from Defense Department appropriations to build the wall seems equally outside his authority.
      Trump acknowledged a likely setback at the circuit court level, but he predicted a win at the Supreme Court like the 5-4 ruling that upheld his Muslim travel ban in June 2018 after a string of defeats in lower courts. Chief Justice John Roberts's majority opinion in that case, Trump v. Hawaii, relied heavily on immigration laws with broad discretion for presidential power. Trump thinks the national emergency law vests him with equally broad power, but the New York Times pointed to Trump's fallacy with a headline that described the national emergency power as having been invoked "many times before, but never before as an end run."

Saturday, February 9, 2019

Under Trump, Democracy in Retreat

      The state of the U.S. economy may be strong in some respects, as President Trump boasted in his State of the Union address this week [Feb. 5], but two years into his presidency democracy is in retreat in the United States and around the world. Trump takes unjustified pride in the economy's continued upswing that dates from the last years of the Obama's presidency, but the nonpartisan human rights organization Freedom House puts the blame squarely on Trump for accelerating the decline in democracy in the United States and around the world.
      The United States fell on a 100-point scale to a record low score of 86 at the end of Trump's first year in office and remained stuck there at the end of 2018, according to Freedom House's annual report Freedom in the World. In all, 59 countries score higher on the Freedom House scale than the United States, including most of Western Europe, several formerly Communist-ruled countries in Eastern Europe, and such now democratic countries as Chile and Portugal that emerged from right-wing dictatorships late in the 20th century.
      The decline in U.S. democracy predates Trump's presidency, but Trump's influence is seen as especially damaging to "our core values" and to the "stability of our constitutional system," according to an overview by Freedom House's president Michael Abramowitz. "No president in living memory has shown less respect for its tenets, norms, and principles," Abramowitz writes, citing as examples Trump's attacks on separation of powers, the judiciary, and the press.
      Abramowitz, a former Washington Post reporter, traces the decline in U.S. democracy from the beginnings of the post-9/11 surveillance state under President George W. Bush and also tars the Obama administration for what he calls its "overzealous crackdown on press leaks." Trump's assaults on U.S. democracy are more numerous and more pervasive in Abramowitz's telling and date back to his presidential campaign.
      Trump has been guilty of "assailing the rule of law," in Abramowitz's account, ever since he attacked the judge overseeing the civil lawsuit against Trump University on the basis of the American-born judge's Mexican ancestry. Trump doubled down on the tactic early in his presidency by denigrating the "so-called judge" who ruled against his Muslim travel ban and more recently by criticizing the "Obama judge" who blocked the administration's illegal plan to consider asylum applicants only at official ports of entry.
      Trump's renewed attack on the impartiality of federal judges drew a rebuke last fall from the normally circumspect Republican-appointed chief justice, John Roberts. An independent judiciary, Roberts declared in a Thanksgiving week statement, "is something we all should be thankful for."
      The president's attacks on the rule of law, as enumerated by Abramowitz, go far beyond these occasional tweets against individual judicial decisions. Trump has politicized the federal government's law enforcement responsibilities by urging the Justice Department to prosecute his political opponents and critics and by expressing contempt for witnesses who cooperate in investigations in cases that threaten his interests. He has also used his pardon power to reward political and ideological allies and to encourage targets of investigations to refuse cooperation with the government.
      Trump's practice of "demonizing the press" also dates from his campaign and is now a hallmark of his presidential playbook. "Previous presidents have criticized the press, sometimes bitterly," Abramowitz acknowledges, "but none with such relentless hostility for the institution itself." Indeed, Trump's "slurs" against journalists as "enemies of the people' are now a calculated political tactic that undermines democracy by "accelerating the breakdown of public confidence in journalism as a legitimate, fact-based check on government power."
      The bill of particulars against Trump continues with his "self-dealing and conflicts of interest," in defiance of what had been strong antigraft protections. Trump "has broken with his modern predecessors," Abramowitz writes, "in flouting the ethical standards of public service." Abramowitz notes Trump's nepotism-defying hiring of daughter Ivanka and son-in-law Jared Kushner as White House aides despite their own financial conflicts of interest, but without specifically treating it not only as a political issue but as the kind of practice associated with antidemocratic authoritarian leaders through the years.
      The global decline in democracy detailed in Freedom House reports for more than a decade also dates from before Trump's presidency, but Trump has turned policies away from what had been a commitment by Republican and Democratic presidents alike to seek to promote democracy abroad. "Trump has refused to advocate for America’s democratic values, and he seems to encourage the forces that oppose them," Abramowitz writes, citing what he calls Trump's "frequent, fulsome praise for some of the world's worst dictators," Russia's Vladimir Putin among them.
      Trump cannot be blamed for the economic and political malaise that has led to declines in democracy for a thirteenth consecutive year in what the Freedom House report calls a "consistent and ominous" trend. But Trump has surely given aid and comfort to what the report calls "the antiliberal populist movements of the far right" in such backsliding countries as Hungary and most recently Brazil. "These movements damage democracies internally through their dismissive attitude toward core civil and political rights, " the report states, "and they weaken the cause of democracy around the world with their unilateralist reflexes."
      The unilateralist theme of "Make America Great Again," imitated worldwide, contributes to what the Freedom House report calls "real alarm" for democracy worldwide. "Democracy needs defending," the report concludes, but with Trump in office the report ends with a plea for Americans to recognize that "no one else will do it for us."

Saturday, February 2, 2019

Republicans' Fake Statistics on Illegal Voting

      David Whitley had barely settled into his new job as Texas's secretary of state last month [Jan. 25] when he put out a seriously flawed study suggesting that 95,000 noncitizens had voted, illegally, in Lone Star state elections over the past 20 years. Within the week, however, Whitley's office was acknowledging errors in the lists of supposed noncitizen voters that it had sent to county election offices to use in purging their voter rolls.
      Whitley, a longtime aide to Texas's Republican governor and former state attorney general Greg Abbott, is the latest GOP politician to take up the monomaniacal pursuit of mostly imaginary illegal voting by noncitizens. President Trump is the leading victim of this clinical obsession with his repeated claim that he would have won the popular vote in the 2016 presidential election but for the supposed millions of noncitizen voters who, apparently, broke overwhelmingly for Hillary Clinton.
      As with so many of Trump's utterances, the Liar in Chief has no evidence whatsoever to support this preposterous claim about noncitizen voting in the 2016 election. Whitley, on the other hand, deserves at least partial credit for finishing up a study authorized under a recent Texas law aimed at gathering actual evidence of noncitizen voting in the state.
      The study, immediately touted by the state's Republican attorney general Ken Paxton, raised alarms nationwide after Trump and conservative commentators began citing it as the long-sought proof of noncitizen voting. On the surface, the study seemed sensible enough by correlating noncitizens who applied to the state's Department of Public Safety for driver licenses with names on county election registration rolls.
      The logical flaw, however, results from the extended time period covered by the study since many of the noncitizen drivers could have become naturalized citizens by the time they registered to vote years later. In fact, Texas secretary of state officials involved in the study learned before releasing their results that other states had encountered this very problem with similar studies and had acknowledged their results to be questionable.
      The obsessive search for illegal voting by noncitizens naturally brings to mind Captain Ahab's self-destructive pursuit of the white whale in Moby Dick or the Bush administration's empty-handed search for Saddam Hussein's weapons of mass destruction in Iraq. Among the other recent victims of this neurosis is the Senate's Republican leader, Kentucky's Mitch McConnell, who wrongly claimed in an op-ed essay [Jan. 18] that California election officials had recently allowed 23,000 ineligible voters to register. Five days later, the Washington Post ran a correction to note that the figure "referred to registration errors such as wrongly recorded party affiliations, not ineligible voters."
      McConnell cited the fake statistics in the course of a broad attack on the Democratic-sponsored bill in the House of Representatives aimed at making it easier to vote by requiring, among other practices, automatic voter registration and early voting in federal elections. The Democratic sponsors call H.R. 1 the "For the People Act," but McConnell dismisses it instead as "the Democrat Politician Protection Act" on the wrongheaded premise that it is designed to allow federal workers to take a day off to campaign for Democratic candidates.
      Meanwhile, local election officials in Texas were dealing with the serious issues resulting from a wrongheaded directive from the state elections chief to purge supposed noncitizens from their registration rolls. In Harris County, the state's largest, election officials reported that they had cleared 18,000 voters who had been wrongly identified in the secretary of state's study as potential noncitizens, as reported in the Texas Tribune.
      The Tribune reported that four other large counties had received messages from Whitley's office acknowledging possible errors in identifying some of the voters as noncitizens. By week's end, Whitley had not officially acknowledged the errors, but the office's spokesman backpedaled somewhat by explaining that the office was "continuing to provide information to the counties to assist them" in verifying voter eligibility.
      The long-established Latino advocacy group known by its acronym as LULAC sued Whitley's office in federal court by claiming that the enforcement steps taken based on the flawed study amounted to voter intimidation. "Voter fraud is a lie," LULAC's president Domengo Garcia said at a news conference announcing the lawsuit. "It's a big lie made to disenfranchise primarily African-American, Latino voters in Texas."
      By now, any court can take judicial notice of the fact that Republican lawmakers and officials have enacted laws and adopted policies over the past two decades deliberately aimed at making it harder to vote so as to disadvantage groups likely to favor Democratic candidates at the polls. As one datum, a judge could note that Mississippi's newly elected Republican U.S. senator Cindy Hyde-Smith told a rally after her election in November that it would be "a great idea" to "make it just a little more difficult' to vote."
      The Supreme Court has been complicit in the Republicans' voter suppression by upholding state voter ID laws despite the lack of any measurable evidence of fraudulent voter impersonation at the polls. In today's poisonously polarized political climate, the right to vote no longer enjoys bipartisan support nor strong judicial protection. The fake statistics spread around by Republicans in state capitals and Washington alike undercut what should be a sacred privilege. More than ever, federal courts need to step in boldly when called on to police the politically driven tactics to devalue this most precious of rights in our democracy.