Sunday, May 24, 2020

Thomas's 'Theories' Poses Risks for Justice

      Supreme Court Justice Clarence Thomas recalls today that he viewed court-ordered busing in school desegregation cases in the 1970s as flawed and wrong-headed and still does. Interviewed for a hagiographic documentary Created Equal, Thomas told filmmaker Michael Park that as a student in the Boston area, he saw no purpose in busing black kids from Roxbury to white schools in other neighborhoods that were in his view no better than the schools in the black neighborhoods.
      The flaw, Thomas explained, lay in the “theory” that pro-busing advocates and judges had adopted with no appreciation of its actual consequences for the people involved. “Theory … add people,” Thomas explained in the film, with evident contempt.
      As Supreme Court justice over the past 30 years, however, Thomas has fallen victim to the same error: he has been single-mindedly committed to theories, original meaning and color-blind Constitution, with no regard for the ill effects his theories would have on real people, in real cases. Thomas’s admirers, out in force over the past few weeks, view his single-mindedness as judicial integrity rather than for it is: jurisprudential arrogance and indifference to justice.
      In an online webinar sponsored by the conservative Committee for Justice, for example, Ralph Rossum, a professor at Claremont McKenna College in California and author of a Thomas biography, cited favorably Thomas’s dissent in his first term on the Court in an otherwise unremarkable prison conditions case. The 7-2 decision in Hudson v. McMillian (1992) followed and somewhat expanded prior decisions allowing prison inmates to sue prison guards and officials excessive physical force under the Eighth Amendment’s Cruel and Unusual Punishments Clause for excessive physical force.
      Thomas called for discarding the precedents on the ground that the Eighth Amendment applied only to court-ordered punishments, not to prison discipline or other conditions.  Thomas’s argument persuaded Justice Antonin Scalia to join the dissent. If his view had prevailed —  no justice has picked it up since — real-life prisoners (‘people”) would have less protection today against excessive force.
      It bears noting that only a few months earlier, Thomas had assured the Senate Judiciary Committee that he had no plans to vote to overturn precedents if confirmed to the Supreme Court.  “I have no agenda to change existing case law,” he told the senators. Whatever lies he may have uttered in denying Anita Hill’s accusations of sexual harassment, Thomas’s professed devotion to stare decisis was at best dissembling, if not outright dishonesty. Quite likely, he would not have been confirmed had he truthfully acknowledged his limited respect for legal precedent.
      Indeed, Thomas’s dissent in the prison conditions case was not the only or the most consequential of his votes to overturn precedent during his first year on the Court. He joined in dissent at the end of the term with three other justices – White, Rehnquist, and Scalia – by voting in Casey v. Planned Parenthood (1992)  to overturn the landmark reproductive rights decision, Roe v. Wade. Had Thomas’s view prevailed, real-life women (“people”) would have had their liberty curtailed and would today have less individual freedom.
      Moving forward, the liberal Court watcher Jason Ryulander counted in 2011 more than 30 cases in which Thomas had called in concurring or dissenting opinions for overturning well-settled precedents. His admirers especially praise his stout insistence on a “color-blind Constitution” that, in Thomas’s estimation, prohibits any preferential consideration of race in admissions at selective colleges and universities.
      Thomas’s view is completely ahistorical. The congressional framers of the Fourteenth Amendment and its Equal Protection Clause created, in the interest of racial justice under law, the ‘Freedmen’s Bureau,’ with the specific mission of helping emancipated African American slaves to find productive lives and assume roles as free and equal citizens. Thomas remains a dissenter in calling to overturn the affirmative action decisions; if his views were to prevail, black and brown students (“people”) would have fewer opportunities than they enjoy today to gain admission at elite colleges and universities.
      His supporters note, however, that Thomas has been able to help move the Court on some occasions. In one notable instance, Thomas argued in a separate opinion in a Voting Rights Act case in 2009 to scrap the preclearance requirement imposed on states and localities with a history of racial discrimination. Four years later, Thomas was part of the five-vote majority led by Chief Justice Roberts  in Shelby County v. Holder (2013) that in fact nullified the preclearance requirement. The result was to free states such as Texas, among others, to enact new election laws and procedures that limited access to voting  for many voters (‘people”), with disproportionate impact on the poor and on minority voters.
      Thomas has also called for reconsidering decisions that prohibit race-based peremptory challenges by lawyers in civil or criminal cases. Thomas took that position most recently in dissenting from the 7-2 decision in Flowers v. Mississippi (2019) to grant a black defendant a new trial because of the white prosecutor’s use of peremptory challenges to exclude blacks from the eventual jury. Had Thomas’s view prevailed, Flowers — a real-life defendant, wrongly convicted — would still be in prison today, rather than out on bail awaiting the state’s decision whether to retry the case without racial discrimination.
      Park’s film, funded by far-right foundations, gave Thomas’s admirers the occasion to spin the story that the supposedly underappreciated justice had suddenly emerged as “a symbol of Trump era conservatism” and “a model for a new generation of lawyers.” Reporters who fell for the spin included Nicholas Casey, the New York Times reporter on the conservative beat, who suggested in a fawning, full-page article that Thomas may be on the way to becoming “a pop-culture icon” akin to his Supreme Court colleague, the “Notorious R.B.G.” Lady Justice weeps at the prospect.

Sunday, May 17, 2020

In Prisons, Coronavirus Precautions Found Lacking

      Christopher Marlowe, an inmate at the Rayburn Correctional Center in southeastern Louisiana, suffers from diabetes — an underlying condition that makes him especially vulnerable to the risk of contracting COVID-19 from the novel coronavirus that is sweeping through prisons nationwide. Marlowe has been in federal court for the past two years, claiming inadequate medical treatment, and now is seeking more urgent relief in the form of stricter public health measures to protect himself and other inmates from the risk of coronavirus contagion.
      The federal judge in Marlowe’s case is one of two, the other in Texas, to have ordered prison officials last month to do more to protect inmates from the coronavirus. In both cases, however, a three-judge appeals court panel put the injunctions on hold with seemingly little concern about the urgency of protecting the inmates’ health.
      The judge who heard Marlowe’s testimony via teleconference along with the prison warden’s explanation of the protective measures under way concluded last month [April 23] that the prison had done too little to limit the spread of the virus. In a 14-page memorandum opinion, Judge Brian Jackson noted Marlowe’s testimony that water fountains and microwave ovens are not wiped clean and disinfected on a regular basis. Jackson also noted evidence that social distancing guidelines are not followed and are inevitably breached because of narrow corridors and lack of spacing the telephones for inmates’ use.
      Jackson acknowledged Warden Robert Tanner’s testimony that the prison staff had taken “some steps to deter the spread of the virus.” But the judge faulted Tanner for failing to require prison staff and orderlies to wear masks and other personal protective equipment.
      Marlowe testified that he sleeps in a 78-inmate dormitory, an arm’s length away from the prisoner in the adjoining bunk. At the outset, Jackson noted that Marlowe, because of his diabetes, was “extremely susceptible to serious, potentially fatal, complications should he contract COVID-19.” The judge also noted that 23 inmates had been found to have contracted the virus at the time of the hearing. With that evidence, Jackson concluded flatly that the “interests of justice demand that the court take emergency action”—specifically, ordering the prison to institute all the health measures recommended by the state.
      The fate of Jackson’s order now rests with the U.S. Supreme Court after a three-judge appeals court panel put Jackson’s injunction on hold. Emily Posner, the New Orleans attorney representing Posner, filed an application last week [May 14] asking the justices to lift the stay issued by the Fifth U.S. Circuit Court of Appeals on April 27. Marlowe’s case, Marlowe v. LeBlanc, 19A1039, is the second coronavirus-related prison suit to reach the Court within a matter of weeks; the previous case, Valentine v. Collier, 19A1034, from Texas, followed a similar path with a district court injunction ordering Texas officials to institute more stringent protective measures and then an appeals court decision to stay the injunction.
      In the Texas case, U.S. District Court Judge Keith Ellison noted such shortcomings as the lack of hand sanitizers and then detailed more than a dozen steps for the officials at Wallace Pack Prison in southeastern Texas to institute to protect the geriatric inmates at the facility from what he called the “grave” dangers from the virus. Ellison noted in his April 16 decision that one inmate at Pack Unit had already died from Covid-19 and that Covid-19 was “spread[ing] like wildfire” in prisons in Texas and throughout the country.
      The state asked the Fifth Circuit to stay Ellison’s injunction. The stay panel consisted of two Republican appointees — the veteran conservative Edith Jones and a Trump-appointed conservative Andy Oldham — and one Democratic appointee, Stephen Higginson. In an unsigned opinion granting the stay on April 22, the panel noted that some of Ellison’s ordered steps went beyond guidelines adopted by the federal Centers for Disease Control and Prevention (CDC). The panel also noted that the Prison Litigation Reform Act, adopted in the 1990s, requires that any court-ordered remedies in prison condition suits be “narrowly drawn” and “the least intrusive means necessary to correct the harms.”
      Attorneys for the inmates asked the Supreme Court, in effect, to reinstate Ellison’s injunction by staying the appeals court’s stay. But the Court turned down the request in an unsigned order issued last week [May 14]. In a seven-page opinion, Justice Sonia Sotomayor appeared to concede that the inmates had failed to make the showing needed to undo the appeals court’s stay, but went on to explicitly criticize the Fifth Circuit’s reasoning. “[T]he Fifth Circuit did not address all of the District Court’s factual findings that the prison had inexplicably discarded its own rules and, in doing so, evinced deliberate indifference to the medical needs of its inmates,” she wrote. Sotomayor added later that the appeals court “may have acted outside its authority in refusing to defer to [the district court’s] factual findings.”
      Sotomayor closed by admonishing the appeals court to continue to monitor the litigation and to consider modifying its stay. The same panel, however, had already cited its ruling in the Texas case as authority for staying Judge Jackson’s order in the Louisiana case in an order issued on April 27. “It has long been said that a society’s worth can be judged by taking stock of its prisons,” Sotomayor wrote in a concluding passage. “That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm.”

Sunday, May 10, 2020

Trump's Blundering War Against Coronavirus

      President Trump and two of his henchmen have now served notice that they care not one whit about putting more American lives at risk during the coronavirus pandemic in pursuit of their political goals: in particular, Trump’s prospects for re-election in November. Trump encouraged states last week [May 4] to disregard the administration’s own guidelines issued last month even as the infectious disease experts, Anthony Fauci and Deborah Birx, were stressing the risks of reopening businesses and easing guidelines before the data showed progress in containing the coronavirus.
      Along with Trump, the Senate’s majority leader, Kentucky’s Mitch McConnell, decided to risk public health in the District of Columbia by summoning the Senate back into business. McConnell’s goal was not so much to tend to the nation’s unfinished business, but to approve one more Trump nominee for the federal bench and elevate a protégé, the young firebrand conservative Justin Walker, to the federal appeals court for the D.C. Circuit.
      Attorney General William Barr gave added support to Trump’s political agenda by putting the Justice Department’s clout on the side of the Trump-supporting protesters clamoring for governors to ease pandemic-related closures, the risks of more contagion be damned. Barr issued a memorandum directing two of his deputies to monitor state and local policies and take action “if necessary” to correct any policies that “could be violating the constitutional rights and civil liberties of individual citizens.
      “We do not want to unduly interfere with the important efforts of state and local officials to protect the public,” Barr wrote in the April 27 memorandum, “but the Constitution is not suspended in times of crisis.”
      Clausewitz famously observed that war is “politics by other means.” As commander in chief of the war against the coronavirus pandemic, Trump has embodied that adage from the very start. He has seen the pandemic not as a public health issue but a political obstacle to his re-election. And, thus, at least in the short term, he did what he could to keep the reported numbers down — no ramped-up testing, for example — and to avoid spooking the stock markets.
      The fates, however, were against him. By minimizing the dangers at the outset, Trump only made it easier for the virus to spread, with the result now that unemployment has reached levels unseen since the Depression and the United States leads the world in the number of lives lost to the virus. As wartime leader, Trump would have done well to recall history’s oft-taught lesson that the easiest mistake in war is to underestimate the strength of the enemy, putting more lives at risk.
      On Capitol Hill, a leading Senate Democrat mocked McConnell’s claimed need to rush the senators back to Washington, in flagrant defiance of social distancing guidelines. “It’s certainly hard to argue that this is part of a response to a national health emergency in the United States,” Illinois’ Richard Durbin told reporters [May 4]. “When the majority leader comes to us and says, ‘We have important nominations that deal with national security,’ I’m sorry, but Judge Walker is not one of them.”
      Beyond Barr’s meddlesome memorandum, the attorney general also authorized the Justice Department to file a statement of interest in a pending case brought by a church on Chincoteague Island, Virginia, that is challenging a citation for violating Gov. Ralph Northam’s executive order banning in-person religious services with more than 10 persons. The church claims that the 16 congregants maintained social distancing in the 225-seat sanctuary, but public health experts are unanimous in warning that the risk of contagion is inevitable even if small crowds do their best to keep their distance.
      The government’s designated public health experts at the Centers for Disease Control and Prevention (CDC) did their best to prescribe the steps needed to minimize the spread of the virus, but Trump’s White House apparently thinks they know best. The CDC guidelines, now shelved, suggested, among other steps, that public transit systems keep passengers separated on buses and trains. They also called on churches to consider limiting the sharing of frequently touched objects, such as hymnals, prayer books, and collection plates.
      The CDC experts have warned from the outset that the coronavirus spreads easily via hard surface contamination through contact as seemingly innocuous as touching doorknobs, elevator buttons, or the like. In White House meetings, however, chief of staff Mark Meadows and the White House liaison to the evangelist community Roger Severino were described in the New York Times’s account as arguing that the steps were too prescriptive in areas with relatively few coronavirus cases and risked infringing on religious freedom. Meanwhile, Trump himself ostentatiously refuses to wear a face mask in public, as recommended for the general public.
      To be sure, millions of Americans are very tired of worrying about the coronavirus and suffering from the effects of shutting down the economy and social intercourse in an effort to contain the pandemic. A true leader would summon Americans to fight on, with patience and resolve behind steady leadership, just as Churchill did with Britain under attack and FDR did in the United States. Alas, the United States’ leader today prefers instead to lead Americans into the valley of death in a blundering war that has already claimed more American lives than Vietnam, Iraq, and Afghanistan combined.