Sunday, April 11, 2021

At Harvard Law, Breyer's Farewell Address?

            Supreme Court Justice Stephen Breyer might or might not be contemplating his eventual retirement these days, but he delivered a lecture at Harvard Law School last week [April 6] that could well serve as his farewell address after twenty-seven years on the Supreme Court. Breyer used the two-hour lecture, the video available via YouTube, to warm against “the perils of politics” that threaten the Court’s authority and public confidence in the Court.

At age 82, Breyer is now the oldest of the nine current justices and the tenth oldest justice in history. He has no known health issues that interfere with his work or that might force him to step down in the near future. His questions to lawyers during the current term’s oral arguments have been unaffected by advancing age. He also demonstrated his mastery of legal craftsmanship by leading the Court’s 6-2 majority last week [April 5] in a factually complex decision that cleared Google of copyright infringement for copying parts of the Java platform when it set up the Android platform for smartphones beginning in 2005.

             Breyer, it must be remembered, was confirmed by an 87-9 Senate vote in 1994 based on his reputation for bipartisanship as a Senate committee staffer and as a judicial moderate on the federal appeals court in Boston. He has been a moderate liberal on the Supreme Court, siding with conservatives for example in some Fourth Amendment decisions favoring law enforcement over suspects or defendants.

            The speculation that Breyer might or perhaps should retire soon has increased with the election of an ideologically compatible president in the White House and Democrats in control of the Senate. Breyer made no reference to possible retirement in the Harvard lecture and has had no public comment since a liberal law professor called for his early retirement last month [March 15] in an op-ed in The New York Times.

The University of Colorado’s Paul Campos warned in the article that Democrats could lose control of the Senate if any one of the fifty Democratic senator were to die or retire and be succeeded by a Republican appointee. Under present circumstances, Campos wrote, “it would be a travesty if the Supreme Court seat occupied by Justice Breyer was not filled by a replacement chosen by Democrats.”

Breyer’s longtime colleague, Ruth Bader Ginsburg, responded to questions about her own tenure over the years by vowing to stay on the job as long as she was able to do the work. Her death last fall gave President Trump the chance to create a lopsided conservative majority on the Court, with the liberal bloc reduced from four to three justices. Breyer has been mum about possible retirement even to the point of avoiding any assurance that he is still up to the job and plans to stay as long as he is.

            In his lecture, Breyer noted that despite the political attacks of the past half-century the Court continues to do well in public opinion polls that show it has higher approval ratings than Congress. Public confidence in the Court, Breyer explained, was neither automatic nor foreordained. He relates the history of political conflicts with presidents—for example, between Jefferson and the Marshall Court, Jackson and the late Marshall Court, and FDR and the conservative Court Roosevelt inherited from Republican ascendancy in the 1920s.

            Recalling this history, Breyer appears to be pleading with whatever audience the lecture may gain to set aside their view of justices as politicians in robes. Judges, he acknowledges, take the bench with political views and legal philosophies well formed and shaped by their personal backgrounds. “I cannot jump out of my own skin,” he explains. “No one can.”

            Breyer’s pleading, unfortunately, will fall on deaf ears on the political right. Five Republican presidents – Nixon, Reagan, Bush 41, Bush43, and Trump – have pushed the ideological envelope in appointments to the Court and conditioned political partisans to view Democratic-appointed justices as activists even as conservative justices  have crafted new constitutional doctrines or overruled precedents to throw out laws enacted by Congress.

            True to his warnings against politics, Breyer cautioned against one of the Supreme Court reform proposals that has gained favor among some Democrats and many liberal Court watchers. Expanding the Court to ten justices, he warned, would feed the public perception that decisions are driven not by law, but by politics. Breyer’s opposition may well be moot., however As candidate and as president, Biden has not endorsed expanding the Court’s membership and any such proposal would be all but impossible to win filibuster-proof support in the 50-50 Senate.

            As for other Supreme Court reform proposals, the Washington Post editorial board weighted in this weekend [April 11] by arguing that term limits for justices would be more important than Court packing and more politically palatable as well. Those proposals too face an uphill road in the face of constitutional doubts and intricate questions about how to apply term limits to sitting justices.


Sunday, April 4, 2021

In Derek Chauvin's Trial, Lessons for All to See

            Two of the three major cable news channels have performed a valuable public service by providing live, daily coverage of the murder trial of former Minneapolis police office Derek Chauvin for the death of George Floyd. The five days of testimony that began on Monday [March 29] showed, painfully and wrenchingly, the degree of Chauvin’s malice and recklessness in pinning Floyd’s neck to the ground until after an agonizing nine minutes Floyd lay lifeless, with no pulse found by on-scene paramedics.

            By the time the trial began, ten months after Floyd’s death, the people of Minneapolis and all Americans had seen excerpts of the bystander’s video from that day, with Chauvin’s three colleagues standing by mute and the protesting onlookers pleading with Chauvin to let up. But the airing of the full nine-minute video from Chauvin’s body camera is, as the lawyers might say, the best evidence of what happened that day—not just for the multiracial jury, but for all Americans to judge as well.

            In an odd bit of journalistic rivalry, Tucker Carlson used his Fox News commentary one night last week to complain that the other news channels, CNN and MSNBC, were treating the trial as though it were the Super Bowl—seemingly to gain audience share and, in Carlson’s view, knowingly to further divide public opinion on the “Black Lives Matter” movement and the need to reform police policies and practices.

            Carlson appeared to be bragging that Fox was staying away from coverage of the trial, perhaps the first time in journalistic history that a news organization has bragged about failing to cover one of the most important events of the day. But Carlson may understand that the public viewing of the trial supports the central thesis of the Black Lives Matter movement on the need to redress racist stereotypes held by too many white police officers and the need to adopt and enforce strict policies on the use of force.

            This mini-debate on coverage of the trial brought to mind, for me, Chief Justice Warren Burger’s explanation of the importance of public criminal trials in an important decision four decades ago. Writing the main opinion in Richmond Newspapers v. Virginia  (1980), Burger reinforced the tradition of open criminal trials by citing as benefits “the significant community therapeutic value of public trials” and a public trial’s role in “providing an outlet for community concern, hostility, and emotion.”

            The people of Minneapolis need that outlet and so do the millions of Americans who sympathize with the Black Lives Matter movement, whether or not the Fox News opinion-mongers do. With the jury’s verdict necessarily uncertain, coverage of the trial may help Americans accept the eventual outcome of the trial as a legal judgment based on the evidence and the law rather than a political statement one way or the other.

            Viewers who stayed with the trial as the week continued had the opportunity to hear for themselves testimony from Chauvin’s superiors that his conduct was, whether or not criminal, out of line with best police practices. Testifying on Friday [April 2], Lt. Richard Zimmerman, the longest serving officer on the Minneapolis police department, testified bluntly for the prosecution that Chauvin’s knee on Floyd’s neck was “totally unnecessary.”

“Pulling him down to the ground facedown and putting your knee on a neck for that amount of time, it’s just uncalled for,” Zimmerman testified, after viewing the video in the courtroom. The veteran officer also answered any fear that Chauvin might have had of Floyd.  “Once a person is handcuffed,” Zimmerman went on to say, “the threat level goes down all  the way. They’re cuffed: how can they really hurt you?”

            Chauvin had been the subject of twenty-two complaints – eight of them involving use of force against arrestees -- in his nineteen-year career before he was fired within days after Floyd’s death on May 25, 2020. Only one of the complaints resulted in discipline: city records quoted in news coverage show that only a small fraction of adjudicated complaints against Minneapolis officers over the past decade resulted in discipline.

The prosecution wanted to introduce evidence of eight of those incidents, but Hennepin County District Judge Peter Cahill allowed only two of them. Whether or not the incidents were admissible in a criminal trial, Chauvin’s history raises the question of whether the department should have kept him on the force or, in any event, allowed him to assume a supervisory role over younger officers – like the three officers who deferred to Chauvin’s seniority as they watched him continue to kneel on Floyd’s neck even as Floyd pleaded, “I can’t breathe.”

            Chauvin is charged with second-degree murder and manslaughter, The other three ex-officers  at the scene – J. Alexander Kueng, Thomas K. Lane, and Tou Thao – face criminal charges themselves and are scheduled to stand trial on aiding-and-abetting charges beginning on Aug. 23. Cahill ordered a separate trial for the trial, over the objection of State Attorney General Keith Ellison, whose office is prosecuting the cases. Cahill voiced concern that a joint trial could be a superspreading coronavirus event, while Ellison contended that a second trial would be retraumatizing for the witnesses in the two cases.

            By week’s end, the trial was seen as ahead of schedule, with a second week of testimony set to begin on Monday [April 5]. Whatever the eventual verdict may be, police administrators around the country must take the lessons from Chauvin’s trial needed to prevent unnecessary deaths like Floyd’s in the future.