The Supreme Court struck a major blow for racial justice in 1954 when it outlawed racial segregation in public schools. But Brown v. Board of Education said nothing about legally enforced racial segregation in other public services or in public facilities.
Even so, the principle that discrimination on the basis of race violates the Equal Protection Clause was evidently just as applicable to segregation in public parks, golf courses, and swimming pools, as federal judges in the South quickly ruled. When those cases reached the Supreme Court, the justices summarily affirmed the rulings without comment.
As the episode illustrates, a new legal principle cannot be neatly confined to the case at hand. In a rule-of-law society, precedents have consequences; rulings have legs. So it was with the Supreme Court’s first blow against racial segregation. And so it may be with the federal government’s first direct challenge to legally enforced discrimination against gays and lesbians.
In deciding not to defend the constitutionality of the Defense of Marriage Act (DOMA), the Obama administration adopted for the first time the view that laws based on sexual orientation are constitutionally suspect and cannot be upheld without surviving some unspecified measure of “heightened scrutiny.” Attorney General Eric Holder listed four factors in his letter explaining why courts should be “suspicious” of laws based on sexual orientation.
Holder cited first “the significant history of purposeful discrimination” against gays and lesbians. He pointed next to the “growing consensus” that sexual orientation, like race, is an immutable characteristic and the “growing acknowledgment” that sexual orientation has no bearing on an individual’s ability to contribute to society. And, despite gains in recent years, he noted that gays and lesbians generally have had “limited political power” as a minority in society.
No court, federal or state, has yet to hold that laws based on sexual orientation are constitutionally suspect. Courts that have upheld bans on gay marriage have applied the relaxed “rational relationship” test. Courts that have struck down bans on gay marriage have hinted that a stricter test might be appropriate but have ended by saying that laws denying marriage rights to gays and lesbians have no rational basis because they serve no legitimate government purpose.
The DOMA case is pending before the federal appeals court in New York, but even before a ruling the Justice Department’s position is being extended into other matters. In a preliminary ruling last week [March 22], an immigration judge in New York City cited the government’s position in the DOMA case in allowing an Argentine woman a chance to challenge her deportation because she and her U.S. citizen wife were legally married in Connecticut in August. And a few days earlier [March 17], the Justice Department itself applied heightened scrutiny to governmental conduct based on sexual orientation in accusing the New Orleans Police Department of “bias-based profiling” against LGBT individuals.
In the immigration case, first reported in the Gay City News, Monica Alcota, who came to the United States 10 years ago, is claiming she is entitled to permanent residency status because of her marriage to Cristina Ojeda, a U.S. citizen — just as she would be if she were in a heterosexual marriage. Immigration judge Terry Bain allowed Alcota to petition the U.S. Citizenship and Immigration Services (USCIS) to be recognized as Ojeda’s spouse.
The doubts about deporting foreign spouses in same-sex marriages with U.S. citizens may be shared by immigration officials. Newsweek/The Daily Beast reported last week [March 25] that the directors of the Washington and Baltimore immigration offices have put deportation proceedings in such cases on hold pending further consideration of DOMA’s validity.
The Justice Department’s report on the New Orleans Police Department accused the force of “a pattern or practice of discriminatory policing” against, among others, African Americans, Latinos, and LGBT persons. As reporter Chris Geidner wrote last week [March 23] in the gay Washington publication Metro Weekly, the findings of discrimination against LGBT individuals were not only “notable on their own,” but also significant because of the constitutional standard used to judge the department’s treatment of LGBT individuals. Heightened scrutiny of discrimination by law enforcement on the basis of sexual orientation and gender identity was justified, the report stated, by “many factors . . . including a long history of animus and deeply-rooted stereotypes about lesbian, gay, bisexual, and transgender (“LGBT'”) individuals.”
For now, these developments are merely embryonic. To date, no one in the LGBT community has won vindication of any legal right because of the government’s position. But the Justice Department carries a big stick in federal courts. In Brown, the government sided with the plaintiffs and against the segregated school districts. The government’s support for desegregation over the next two decades helped stiffen the court’s resolve on the issue. Conversely, President Eisenhower’s failure to immediately endorse Brown gave segregationists room to mount resistance to the ruling.
The U.S. government did not participate in the Supreme Court’s most important gay rights ruling: Lawrence v. Texas (2005), which struck down state anti-sodomy laws. President Obama, who is reported to have been personally involved in the decision on DOMA, has for the first time put the government’s significant clout on the side of constitutionalizing gay rights. The next move is up to the courts.
Monday, March 28, 2011
Monday, March 21, 2011
‘Black on Black’ Racial Profiling: Why?
Two weeks after taking office, New Orleans Mayor Mitch Landrieu held a town hall meeting last May about the city’s beleaguered police department. As reported by the New Orleans Tribune, Landrieu closed with a campaign-style promise: “I am not going to be commander-in-chief of a police department that engages in racial profiling.”
Ten months later, the U.S. Justice Department has thrown cold water on Landrieu’s hopeful pledge. In a relentlessly damning, 158-page report, a Justice Department task force has found “reasonable cause to believe” the city’s police department guilty of “a pattern or practice of discriminatory policing,” including “bias-based profiling” against African Americans, Latinos, and gays, lesbians and transgender persons.
The evidence of racial profiling is simple statistics. In the period covered in the study — January 2009 through May 2010, at the start of Landrieu’s tenure — New Orleans police officers shot 27 civilians, all of them African American. For the year 2009, police arrested 500 young black males for serious offenses but only eight young white males. Adjusted for population, that amounts to a 16 to 1 black/white ratio — more than five times as great a disparity as the 3-to-1 ratio reported nationally.
For someone like myself who came of age in the 1960s, the figures are not only disturbing but also deeply disappointing. Back then, urban police departments were close to lily white. New Orleans had 54 African American officers out of a total force of 1,308, according to data in the 1968 Kerner Commission report. Integrate police departments, many of us assumed, and the problem would be if not eliminated at least substantially reduced.
Today, New Orleans is a majority-black city with a majority-black police department. Yet the kind of race-based harassment and intimidation that the Kerner Commission cited as one of the causes of racial unrest and disorder appears to persist. “Black on black” racial profiling must be part of the problem. Why?
“That’s a question that a lot of people have in their mind,” says David Harris, a professor at the University of Pittsburgh School of Law and author of the book Profiles in Injustice: Why Racial Profiling Cannot Work. The explanation, he says, lies not with the race of the officers involved, but with the training, customs, and culture within the police department. And the answer is not simply to identify and get rid of the bigots within a department, but to change the way the department operates.
“Black officers are going to be trained like all the others,” Harris explains. “They’re going to want to fit in just like all the others.”
As Harris notes, African American officers’ role in racial profiling has been documented before. A Justice Department study of police-civilian contacts a decade ago found widespread complaints of race-based traffic stops by African American drivers. The officers complained of were as likely to be black as white, Harris recalls.
In like vein, the Rampart Division scandal in Los Angeles in the late 1990s involved abuse by Latino officers against Latinos. “You’ve got minority cops beating up minorities,” an ACLU lawyer told me for my CQ Researcher report, “Policing the Police” (March 17, 2000).
The Justice Department study of the New Orleans force, requested by and now embraced by Landrieu as well as his (white) chief of police, Ronal Serpas, paints a portrait of a thoroughly dysfunctional department. The report found routine use of “unnecessary and unreasonable force.” Even so, no violation of the department’s use-of-force policy has been found in the six years reviewed by Justice Department investigators.
Detentions without reasonable suspicion were also found to be routine. Out of 145 arrest reports reviewed in detail, “a significant number … reflected on their face apparent constitutional violations,” the report stated. One reason, the investigators surmised, was “a strong and unyielding pressure” on officers to keep their arrest numbers high.
Systemic bias shows up in the department’s practices in dealing not only with African Americans, but also with women, Latinos, Vietnamese, and the LGBT community. Sexual assault and domestic violence cases are poorly investigated, the report says. Gay men complain of fabricated accusations of solicitation, transgender persons of harassment. The force has “no meaningful capacity” to deal with the limited-English-proficiency population. In a city with growing numbers of Vietnamese and Latinos, the department relies on only one Spanish-speaking and one Vietnamese-speaking officer to help handle calls and investigations.
The Justice Department report closed with 16 pages of recommendations covering everything from recruitment, training, and supervision, through evaluation and accountability procedures. On bias-based profiling, the report calls not only for training and explicit policies, but also for data collection to ascertain the extent of profiling and to identify individual officers or units responsible. Harris says similar steps have helped reduce racial profiling in other police forces, including Pittsburgh’s, which was under federal court supervision for five years from after a similar Justice Department investigation.
The report on the New Orleans force is expected to result likewise in a consent decree with federal court supervision for a period, according to the New Orleans Times Picayune. Encouragingly, Serpas appeared at the March 17 press conference in New Orleans with the Justice Department’s Tom Perez, head of the civil rights division, to release the report. “I believe we will make these reforms a reality,” Serpas said.
Ten months later, the U.S. Justice Department has thrown cold water on Landrieu’s hopeful pledge. In a relentlessly damning, 158-page report, a Justice Department task force has found “reasonable cause to believe” the city’s police department guilty of “a pattern or practice of discriminatory policing,” including “bias-based profiling” against African Americans, Latinos, and gays, lesbians and transgender persons.
The evidence of racial profiling is simple statistics. In the period covered in the study — January 2009 through May 2010, at the start of Landrieu’s tenure — New Orleans police officers shot 27 civilians, all of them African American. For the year 2009, police arrested 500 young black males for serious offenses but only eight young white males. Adjusted for population, that amounts to a 16 to 1 black/white ratio — more than five times as great a disparity as the 3-to-1 ratio reported nationally.
For someone like myself who came of age in the 1960s, the figures are not only disturbing but also deeply disappointing. Back then, urban police departments were close to lily white. New Orleans had 54 African American officers out of a total force of 1,308, according to data in the 1968 Kerner Commission report. Integrate police departments, many of us assumed, and the problem would be if not eliminated at least substantially reduced.
Today, New Orleans is a majority-black city with a majority-black police department. Yet the kind of race-based harassment and intimidation that the Kerner Commission cited as one of the causes of racial unrest and disorder appears to persist. “Black on black” racial profiling must be part of the problem. Why?
“That’s a question that a lot of people have in their mind,” says David Harris, a professor at the University of Pittsburgh School of Law and author of the book Profiles in Injustice: Why Racial Profiling Cannot Work. The explanation, he says, lies not with the race of the officers involved, but with the training, customs, and culture within the police department. And the answer is not simply to identify and get rid of the bigots within a department, but to change the way the department operates.
“Black officers are going to be trained like all the others,” Harris explains. “They’re going to want to fit in just like all the others.”
As Harris notes, African American officers’ role in racial profiling has been documented before. A Justice Department study of police-civilian contacts a decade ago found widespread complaints of race-based traffic stops by African American drivers. The officers complained of were as likely to be black as white, Harris recalls.
In like vein, the Rampart Division scandal in Los Angeles in the late 1990s involved abuse by Latino officers against Latinos. “You’ve got minority cops beating up minorities,” an ACLU lawyer told me for my CQ Researcher report, “Policing the Police” (March 17, 2000).
The Justice Department study of the New Orleans force, requested by and now embraced by Landrieu as well as his (white) chief of police, Ronal Serpas, paints a portrait of a thoroughly dysfunctional department. The report found routine use of “unnecessary and unreasonable force.” Even so, no violation of the department’s use-of-force policy has been found in the six years reviewed by Justice Department investigators.
Detentions without reasonable suspicion were also found to be routine. Out of 145 arrest reports reviewed in detail, “a significant number … reflected on their face apparent constitutional violations,” the report stated. One reason, the investigators surmised, was “a strong and unyielding pressure” on officers to keep their arrest numbers high.
Systemic bias shows up in the department’s practices in dealing not only with African Americans, but also with women, Latinos, Vietnamese, and the LGBT community. Sexual assault and domestic violence cases are poorly investigated, the report says. Gay men complain of fabricated accusations of solicitation, transgender persons of harassment. The force has “no meaningful capacity” to deal with the limited-English-proficiency population. In a city with growing numbers of Vietnamese and Latinos, the department relies on only one Spanish-speaking and one Vietnamese-speaking officer to help handle calls and investigations.
The Justice Department report closed with 16 pages of recommendations covering everything from recruitment, training, and supervision, through evaluation and accountability procedures. On bias-based profiling, the report calls not only for training and explicit policies, but also for data collection to ascertain the extent of profiling and to identify individual officers or units responsible. Harris says similar steps have helped reduce racial profiling in other police forces, including Pittsburgh’s, which was under federal court supervision for five years from after a similar Justice Department investigation.
The report on the New Orleans force is expected to result likewise in a consent decree with federal court supervision for a period, according to the New Orleans Times Picayune. Encouragingly, Serpas appeared at the March 17 press conference in New Orleans with the Justice Department’s Tom Perez, head of the civil rights division, to release the report. “I believe we will make these reforms a reality,” Serpas said.
Monday, March 14, 2011
Supreme Court’s Feckless Surrender to Gerrymandering
It’s that time of the decade again: time for legislative and congressional redistricting by state lawmakers or, in a few states, specially created commissions. The Supreme Court struck a major blow for political democracy a half century ago by establishing the “one person, one vote” rule for electoral districts. In the past decade, however, the court has failed to finish the job by leaving the time-dishonored practice of partisan gerrymandering effectively immune to judicial oversight.
The Warren Court started the reapportionment revolution with its 1962 decision, Baker v. Carr, despite the warning from dissenting justice Felix Frankfurter against venturing into a “political thicket.” After retirement, Chief Justice Earl Warren said he considered the reapportionment decisions the most important of his 15-year tenure — outranking even Brown v. Board of Education, the landmark school desegregation case.
The Supreme Court entered the political thicket in the 1960s because the political process was broken. Rural-dominated state legislatures had failed to redraw districts for decades as population shifted to cities and suburbs. My home state of Tennessee had not reapportioned since 1901, despite a mandate in the state constitution to do so. As a result, a minority of voters — about 40 percent — were able to elect super-majorities in both the state Senate and state House of Representatives.
Urban officials and residents sued, claiming a violation of the Equal Protection Clause. The lower court dismissed the suit, citing the Supreme Court’s earlier decision in a similar Illinois malapportionment case, Colegrove v. Green (1946), that federal courts had no jurisdiction over such claims.
In Baker v. Carr, the Court said that federal courts could exercise jurisdiction over malapportionment cases even if they presented a “political question.” The ruling sent the case back to a lower court, which forced the Tennessee legislature to redraw districts to give urban voters their constitutionally entitled due. By the end of the decade, state legislatures throughout the country had similarly been forced to redraw legislative and congressional districts to comply with the “one person, one vote” requirement that the Court established in its later cases.
Two decades later, the Court similarly opened the federal courthouse door to constitutional challenges to partisan gerrymandering, the practice of drawing district lines to help one’s party or hurt the other. Indiana Democrats went to federal court alleging that the Republican-controlled legislature had drawn districts in 1981 in a deliberate effort to disenfranchise Democratic voters. The proof: under the GOP-drawn plan, Democratic candidates won 51.9 percent of the vote in the 1982 election, but only 43 out of 100 seats in the Indiana House.
In Davis v. Bandemer, the Court in 1986 said that federal courts could hear such claims despite the warning from Justice Sandra Day O’Connor that the ruling would invite federal litigation by the losing party in every reapportionment fight. On the merits, the Indiana Democrats lost their fight. But Justice Byron White’s opinion for seven justices established a standard for future cases. “Unconstitutional discrimination occurs,” White wrote, “only when the electoral system is arranged in a manner that will consistently degrade a voter's or a group of voters' influence on the political process as a whole.”
Twice within the past decade, the Court has been asked to strike down partisan congressional gerrymanders fashioned by Republican-controlled legislatures, first in Pennsylvania and then in Texas. In both cases, GOP lawmakers had used recognized tricks to minimize Democrats’ chances at the polls: pairing incumbent Democrats in the same district; “packing” Democratic voters into some districts so their votes would be wasted; or “cracking” Democratic districts so that Democrats would be spread out and outvoted.
In both cases, Republicans won lopsided majorities in the House delegation in the next election: a 12-7 GOP edge in Pennsylvania in 2002; a 21-11 Republican advantage in Texas in 2004. But both times the Court found nothing unconstitutional in the overall line-drawing. In the Pennsylvania case, Vieth v. Jubilerer (2003), four conservative justices wanted to overrule Davis v. Bandemer altogether and bar gerrymandering challenges. Justice Anthony M. Kennedy refused to go that far, but could not come up with a standard for such suits. Nor could the four dissenting liberals agree on a single test. Three years later, Kennedy led a pivotal group of three justices in rejecting Texas Democrats’ efforts to fashion a standard for gerrymandering cases (League of United Latin American Citizens v. Perry, 2006).
With no Supreme Court standard, partisan gerrymandering is all but certain to proceed apace in the current redistricting cycle. And Kennedy’s hesitancy appears likely to steer the Court’s course in any subsequent challenges. Tellingly, Kennedy had no such difficulty in fashioning a rule against racial gerrymanders. Kennedy spoke for the Court in Miller v. Johnson (1995) in holding that a district map was unconstitutional if race was “the predominant factor” in the design. Evidence of lawmakers’ intent could be inferred, Kennedy said, from a district’s departure from “traditional” principles, including “compactness” and “contiguity.”
A workable standard to judge gerrymandering cases is not beyond the Supreme Court’s ability if the justices only had the will. With the Court on the sidelines, however, redistricting fights will again be waged according to the law of the political jungle and the constitutional goal of fair representation shortchanged for another decade.
The Warren Court started the reapportionment revolution with its 1962 decision, Baker v. Carr, despite the warning from dissenting justice Felix Frankfurter against venturing into a “political thicket.” After retirement, Chief Justice Earl Warren said he considered the reapportionment decisions the most important of his 15-year tenure — outranking even Brown v. Board of Education, the landmark school desegregation case.
The Supreme Court entered the political thicket in the 1960s because the political process was broken. Rural-dominated state legislatures had failed to redraw districts for decades as population shifted to cities and suburbs. My home state of Tennessee had not reapportioned since 1901, despite a mandate in the state constitution to do so. As a result, a minority of voters — about 40 percent — were able to elect super-majorities in both the state Senate and state House of Representatives.
Urban officials and residents sued, claiming a violation of the Equal Protection Clause. The lower court dismissed the suit, citing the Supreme Court’s earlier decision in a similar Illinois malapportionment case, Colegrove v. Green (1946), that federal courts had no jurisdiction over such claims.
In Baker v. Carr, the Court said that federal courts could exercise jurisdiction over malapportionment cases even if they presented a “political question.” The ruling sent the case back to a lower court, which forced the Tennessee legislature to redraw districts to give urban voters their constitutionally entitled due. By the end of the decade, state legislatures throughout the country had similarly been forced to redraw legislative and congressional districts to comply with the “one person, one vote” requirement that the Court established in its later cases.
Two decades later, the Court similarly opened the federal courthouse door to constitutional challenges to partisan gerrymandering, the practice of drawing district lines to help one’s party or hurt the other. Indiana Democrats went to federal court alleging that the Republican-controlled legislature had drawn districts in 1981 in a deliberate effort to disenfranchise Democratic voters. The proof: under the GOP-drawn plan, Democratic candidates won 51.9 percent of the vote in the 1982 election, but only 43 out of 100 seats in the Indiana House.
In Davis v. Bandemer, the Court in 1986 said that federal courts could hear such claims despite the warning from Justice Sandra Day O’Connor that the ruling would invite federal litigation by the losing party in every reapportionment fight. On the merits, the Indiana Democrats lost their fight. But Justice Byron White’s opinion for seven justices established a standard for future cases. “Unconstitutional discrimination occurs,” White wrote, “only when the electoral system is arranged in a manner that will consistently degrade a voter's or a group of voters' influence on the political process as a whole.”
Twice within the past decade, the Court has been asked to strike down partisan congressional gerrymanders fashioned by Republican-controlled legislatures, first in Pennsylvania and then in Texas. In both cases, GOP lawmakers had used recognized tricks to minimize Democrats’ chances at the polls: pairing incumbent Democrats in the same district; “packing” Democratic voters into some districts so their votes would be wasted; or “cracking” Democratic districts so that Democrats would be spread out and outvoted.
In both cases, Republicans won lopsided majorities in the House delegation in the next election: a 12-7 GOP edge in Pennsylvania in 2002; a 21-11 Republican advantage in Texas in 2004. But both times the Court found nothing unconstitutional in the overall line-drawing. In the Pennsylvania case, Vieth v. Jubilerer (2003), four conservative justices wanted to overrule Davis v. Bandemer altogether and bar gerrymandering challenges. Justice Anthony M. Kennedy refused to go that far, but could not come up with a standard for such suits. Nor could the four dissenting liberals agree on a single test. Three years later, Kennedy led a pivotal group of three justices in rejecting Texas Democrats’ efforts to fashion a standard for gerrymandering cases (League of United Latin American Citizens v. Perry, 2006).
With no Supreme Court standard, partisan gerrymandering is all but certain to proceed apace in the current redistricting cycle. And Kennedy’s hesitancy appears likely to steer the Court’s course in any subsequent challenges. Tellingly, Kennedy had no such difficulty in fashioning a rule against racial gerrymanders. Kennedy spoke for the Court in Miller v. Johnson (1995) in holding that a district map was unconstitutional if race was “the predominant factor” in the design. Evidence of lawmakers’ intent could be inferred, Kennedy said, from a district’s departure from “traditional” principles, including “compactness” and “contiguity.”
A workable standard to judge gerrymandering cases is not beyond the Supreme Court’s ability if the justices only had the will. With the Court on the sidelines, however, redistricting fights will again be waged according to the law of the political jungle and the constitutional goal of fair representation shortchanged for another decade.
Sunday, March 6, 2011
Vindicating Free Speech for Those Who Hate
The Westboro Baptist Church is a hate group. Its obsessively anti-gay founder, the Rev. Fred W. Phelps Sr., and Phelps’ family members who make up most of the congregation of his Topeka, Kan., church are hateful in thought and deed. No truly God-loving Christian would choose the funeral of a fallen serviceman to air such hateful views as “God hates fags” or “Thank God for dead soldiers.”
Yet that is what Phelps and his media-seeking followers have done some 600 times over the past 20 years. The surviving families and friends of most of those American heroes have tried to ignore the Phelpses. But Albert Snyder, who lost his 20-year-old son Marine Lance Corporal Matthew Snyder in Iraq in 2006, decided not to turn the other cheek after the Phelps clan picketed Matthew’s funeral in his hometown of Westminster, Md.
Just three months later, Snyder sued Phelps and his church for what tort law calls “intentional infliction of emotional distress.” Snyder explained to a federal court jury in the fall 2007 trial that he was outraged by the Phelpses’ decision to turn his son’s funeral into “a media circus.” The jurors adopted Snyder’s outrage as their own, awarding him $2.9 million in compensatory damages and $8 million in punitive damages. Judge Richard Bennett cut the award to $5 million, but like the jury he found the Phelpses’ actions “so outrageous as to inflict severe emotional distress and invade the privacy of a private citizen during a time of bereavement.”
Last week, a nearly unanimous U.S. Supreme Court decided that verdict could not stand. None of the nine justices evinced any respect for what the lone dissenter, Samuel A. Alito Jr., labeled the Phelpses’ “malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability.” Writing for the majority, however, Chief Justice John G. Roberts Jr. said that the First Amendment shielded the Phelpses from liability for their speech, however “hurtful” its impact or “negligible” its contribution to public discourse.
The March 2 ruling in Snyder v. Phelps was in line with free-speech precedents but somewhat at odds with the tenor of the earlier arguments in the case. Several of the justices appeared to agree with Snyder’s lawyer that the Phelpses had no First Amendment protection for intruding on the funeral and targeting epithets at their son, a private citizen. Phelps’ lawyer-daughter Margaret insisted, however, that the demonstration focused on matters of public concern — specifically, “why [soldiers] are dying and how God is dealing with this nation.” Albert Snyder, she said, was merely saying, “I want $11 million from a little church because they came forth with some preaching I didn’t like.”
The nearly unanimous ruling for the Phelpses suggests that the justices came to a different view of the case after a closer examination of the facts. The placards may not have been “refined social or political commentary,” Roberts wrote, but they did refer to “matters of public import,” including homosexuality and public morality. And the Phelpses’ themselves were model First Amendment citizens in Roberts’s telling. They alerted local authorities to their plans and fully complied with police guidance on where to stage their picketing, some 1,000 feet from the church. There was “no shouting, profanity, or violence.”
On those facts, the Phelpses could not be punished except for the content of their message — and that, Roberts said, the First Amendment forbids. Speech on a matter of public concern, he wrote, “cannot be restricted simply because it is upsetting or arouses contempt.”
Alito came to an opposite conclusion mainly by treating some of the Phelpses’ placards — for example, “You’re Going to Hell” — as a personal attack on Matthew Snyder, with the evident but false insinuation that he was gay. Alito also relied in part on a video posted later on the church’s Web site that claimed the Snyder parents had taught Matthew to be “an idolater” by raising him as a Catholic. Roberts said the video was out of the case because Snyder’s lawyer had not raised it in asking the justices to review the decision.
Roberts stressed that the decision was narrow, but a narrow decision can still be a landmark. The court has not always been friendly toward free speech. The court upheld criminal convictions of anti-war activists and anarchists in the early 20th century, of communists in mid-century. Those decisions are today remembered as much for their dissents as for their majority opinions.
It was in another dissent that the great justice Oliver Wendell Holmes Jr. set out the principle that the former New York Times columnist Anthony Lewis used in 2007 as the title for his so-called “biography of the First Amendment.” Rosika Schwimmer, a Hungarian-born pacifist, had been denied U.S. citizenship because she refused to promise to take up arms in defense of her to-be-adopted country. The court in Schwimmer v. United States (1929) ruled against her, 6-3.
In his dissent, Holmes acknowledged that Schwimmer’s views “might excite popular prejudice,” but he extolled what he called “the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.” It is a measure of progress that eight decades later, the Phelpses benefit from that principle, however hateful their thought and deed may be.
Yet that is what Phelps and his media-seeking followers have done some 600 times over the past 20 years. The surviving families and friends of most of those American heroes have tried to ignore the Phelpses. But Albert Snyder, who lost his 20-year-old son Marine Lance Corporal Matthew Snyder in Iraq in 2006, decided not to turn the other cheek after the Phelps clan picketed Matthew’s funeral in his hometown of Westminster, Md.
Just three months later, Snyder sued Phelps and his church for what tort law calls “intentional infliction of emotional distress.” Snyder explained to a federal court jury in the fall 2007 trial that he was outraged by the Phelpses’ decision to turn his son’s funeral into “a media circus.” The jurors adopted Snyder’s outrage as their own, awarding him $2.9 million in compensatory damages and $8 million in punitive damages. Judge Richard Bennett cut the award to $5 million, but like the jury he found the Phelpses’ actions “so outrageous as to inflict severe emotional distress and invade the privacy of a private citizen during a time of bereavement.”
Last week, a nearly unanimous U.S. Supreme Court decided that verdict could not stand. None of the nine justices evinced any respect for what the lone dissenter, Samuel A. Alito Jr., labeled the Phelpses’ “malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability.” Writing for the majority, however, Chief Justice John G. Roberts Jr. said that the First Amendment shielded the Phelpses from liability for their speech, however “hurtful” its impact or “negligible” its contribution to public discourse.
The March 2 ruling in Snyder v. Phelps was in line with free-speech precedents but somewhat at odds with the tenor of the earlier arguments in the case. Several of the justices appeared to agree with Snyder’s lawyer that the Phelpses had no First Amendment protection for intruding on the funeral and targeting epithets at their son, a private citizen. Phelps’ lawyer-daughter Margaret insisted, however, that the demonstration focused on matters of public concern — specifically, “why [soldiers] are dying and how God is dealing with this nation.” Albert Snyder, she said, was merely saying, “I want $11 million from a little church because they came forth with some preaching I didn’t like.”
The nearly unanimous ruling for the Phelpses suggests that the justices came to a different view of the case after a closer examination of the facts. The placards may not have been “refined social or political commentary,” Roberts wrote, but they did refer to “matters of public import,” including homosexuality and public morality. And the Phelpses’ themselves were model First Amendment citizens in Roberts’s telling. They alerted local authorities to their plans and fully complied with police guidance on where to stage their picketing, some 1,000 feet from the church. There was “no shouting, profanity, or violence.”
On those facts, the Phelpses could not be punished except for the content of their message — and that, Roberts said, the First Amendment forbids. Speech on a matter of public concern, he wrote, “cannot be restricted simply because it is upsetting or arouses contempt.”
Alito came to an opposite conclusion mainly by treating some of the Phelpses’ placards — for example, “You’re Going to Hell” — as a personal attack on Matthew Snyder, with the evident but false insinuation that he was gay. Alito also relied in part on a video posted later on the church’s Web site that claimed the Snyder parents had taught Matthew to be “an idolater” by raising him as a Catholic. Roberts said the video was out of the case because Snyder’s lawyer had not raised it in asking the justices to review the decision.
Roberts stressed that the decision was narrow, but a narrow decision can still be a landmark. The court has not always been friendly toward free speech. The court upheld criminal convictions of anti-war activists and anarchists in the early 20th century, of communists in mid-century. Those decisions are today remembered as much for their dissents as for their majority opinions.
It was in another dissent that the great justice Oliver Wendell Holmes Jr. set out the principle that the former New York Times columnist Anthony Lewis used in 2007 as the title for his so-called “biography of the First Amendment.” Rosika Schwimmer, a Hungarian-born pacifist, had been denied U.S. citizenship because she refused to promise to take up arms in defense of her to-be-adopted country. The court in Schwimmer v. United States (1929) ruled against her, 6-3.
In his dissent, Holmes acknowledged that Schwimmer’s views “might excite popular prejudice,” but he extolled what he called “the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.” It is a measure of progress that eight decades later, the Phelpses benefit from that principle, however hateful their thought and deed may be.
Monday, February 28, 2011
No Time to Learn to 'Embrace' Guantanamo
Forget what you heard or read about Guantanamo: American gulag, recruiting tool for al Qaeda, law-free zone. Think instead of Guantanamo as “a rule of law success story,” an off-shore prison camp that President Obama should embrace rather than criticize.
Those are the views at least of two experts who have worn white hats during the fierce debates over the policies established by the Bush administration and largely carried over by the Obama administration for holding suspected anti-American terrorists captured overseas.
Harvard law professor Jack Goldsmith played the role of good guy in the Bush Justice Department as head of the Office of Legal Counsel from October 2003 to July 2004. He has been rightly praised for rescinding the infamous torture memo approved by his predecessor that green-lighted the use of waterboarding and other “enhanced interrogation techniques” against a handful of “high-value” suspects.
Benjamin Wittes, a senior fellow in governance studies at the Brookings Institution, has done as much as any single individual to scrutinize post-9/11 detention policies and practices. He deserves credit in particular for meticulously refuting the Bush administration’s repeated depiction of Guantanamo prisoners as “the worst of the worst” of al Qaeda or Taliban members.
In a controversy with national security hawks on one side and civil liberties doves on the other, Goldsmith and Wittes have positioned themselves as owls, unwilling to sacrifice either security or liberty — or to carry either to an extreme. So their views today, as Goldsmith set out in a recent law school appearance and Wittes wrote in a Brookings blog, warrant respectful consideration. Even so, Goldsmith is wrong to call current policies a success, and Wittes wrong to call on the president to embrace them.
Both Goldsmith and Wittes start with the political context that they say make closing Guantanamo an impossibility. It has been two years since Obama made his post-inauguration pledge to close Guantanamo within one year. A Democratic-controlled Congress balked at approving funds for closing Guantanamo in 2009, even before the uproar over a possible New York City trial of Khalid Sheikh Mohammed, the self-proclaimed architect of the Sept. 11 attacks. By May 2010, Congress had crafted provisions to bar bringing Guantanamo detainees to the United States for trial or transferring them to other countries without all-but-impossible to meet security conditions.
Obama complained of those restrictions even as he signed them into law on Jan. 7 as part of the Defense Department authorization for the current fiscal year. Where President Bush sometimes refused to bind himself to follow congressional restrictions on presidential power, Obama said only that he would seek to repeal the limitations and in the meantime try to “mitigate” their effects.
With Republicans now in control of the House of Representatives, outright repeal is a non-starter. Wittes, who has pushed some of his ideas on Capitol Hill in the past, proposes a deal. Obama should “embrace” Guantanamo and keep it open not only for the current prisoners but also for all future counterterrorism detainees captured abroad. In return, Wittes suggested, Obama should ask Congress to ratify military detention with the review procedures established for Guantanamo prisoners and to lift the restrictions he reluctantly signed into law.
As Wittes wanly concedes, “I do not know if there is a partner in Congress for this deal.”
Like Wittes, Goldsmith sees Obama’s pledge as unredeemable. “Guantanamo is not going to be closed,” he said in a keynote speech at a program at American University’s Washington College of Law on Feb. 18. “It’s not going to happen.”
Goldsmith also echoes Wittes’ point that the Guantanamo of today is not the law-free zone created by the Bush administration. Guantanamo prisoners can challenge their detention via habeas corpus in federal court — thanks not to the president or Congress but to the Supreme Court. Obama has established administrative review procedures for prisoners who may still be held even after losing habeas corpus cases. In Goldsmith’s view, these are “unprecedented” protections for people held in military detention.
For Goldsmith, military detention at Guantanamo on these terms is the least bad of the actual alternatives for suspected terrorists. Civilian trials are ruled out, military commissions problematic, and transfer to other countries increasingly difficult. He worries most that in the absence of a clear detention policy, military and intelligence personnel may simply conclude that the best option on an undefined battlefield is to kill, not capture. That course, he says, is “not good for human rights, not good for intelligence collection, and not good for national security.”
The supposed dilemma seen by Goldsmith and Wittes is not, however, an inevitable aspect of the war on terror. The 48 Guantanamo detainees who have been deemed too dangerous to release but “not feasible for prosecution” are thought to be in that category mostly because of torture-tainted evidence inadmissible in civilian or military tribunals. With interrogation policies cleaned up — as the Obama administration claims — future detainees ought to be amenable to trial in one or the other forum.
Instead of real trials, Goldsmith and Wittes acquiesce in a system of detention for the duration of the no-end-in-sight war on terror with limited review first through habeas corpus and then by an administrative board. Whatever changes may have been instituted at Guantanamo, this is not a system that the United States can convincingly sell to a skeptical world as fair and just.
Postscript: In a respectful and thoughtful reply, Ben Wittes says that I underestimate the number of Guantanamo detainees who will never be tried and that I erred in attributing the impossibility of prosecution primarily to torture-tainted evidence. Under deadline haste, I did fail to check the Guantanamo Detainee Task Force Report’s explanation of the difficulties of prosecution, which primarily include evidence-gathering and charge-bringing problems. In my blog, I suggested torture-tainting will fade as a problem; Ben says those other issues will persist. I would hope that military and intelligence agents will do better in those regards in the future and thus that those problems too will recede. As to Ben’s other points, I will simply say that I could not hope for a better, wiser correspondent with whom to agree to disagree.
Those are the views at least of two experts who have worn white hats during the fierce debates over the policies established by the Bush administration and largely carried over by the Obama administration for holding suspected anti-American terrorists captured overseas.
Harvard law professor Jack Goldsmith played the role of good guy in the Bush Justice Department as head of the Office of Legal Counsel from October 2003 to July 2004. He has been rightly praised for rescinding the infamous torture memo approved by his predecessor that green-lighted the use of waterboarding and other “enhanced interrogation techniques” against a handful of “high-value” suspects.
Benjamin Wittes, a senior fellow in governance studies at the Brookings Institution, has done as much as any single individual to scrutinize post-9/11 detention policies and practices. He deserves credit in particular for meticulously refuting the Bush administration’s repeated depiction of Guantanamo prisoners as “the worst of the worst” of al Qaeda or Taliban members.
In a controversy with national security hawks on one side and civil liberties doves on the other, Goldsmith and Wittes have positioned themselves as owls, unwilling to sacrifice either security or liberty — or to carry either to an extreme. So their views today, as Goldsmith set out in a recent law school appearance and Wittes wrote in a Brookings blog, warrant respectful consideration. Even so, Goldsmith is wrong to call current policies a success, and Wittes wrong to call on the president to embrace them.
Both Goldsmith and Wittes start with the political context that they say make closing Guantanamo an impossibility. It has been two years since Obama made his post-inauguration pledge to close Guantanamo within one year. A Democratic-controlled Congress balked at approving funds for closing Guantanamo in 2009, even before the uproar over a possible New York City trial of Khalid Sheikh Mohammed, the self-proclaimed architect of the Sept. 11 attacks. By May 2010, Congress had crafted provisions to bar bringing Guantanamo detainees to the United States for trial or transferring them to other countries without all-but-impossible to meet security conditions.
Obama complained of those restrictions even as he signed them into law on Jan. 7 as part of the Defense Department authorization for the current fiscal year. Where President Bush sometimes refused to bind himself to follow congressional restrictions on presidential power, Obama said only that he would seek to repeal the limitations and in the meantime try to “mitigate” their effects.
With Republicans now in control of the House of Representatives, outright repeal is a non-starter. Wittes, who has pushed some of his ideas on Capitol Hill in the past, proposes a deal. Obama should “embrace” Guantanamo and keep it open not only for the current prisoners but also for all future counterterrorism detainees captured abroad. In return, Wittes suggested, Obama should ask Congress to ratify military detention with the review procedures established for Guantanamo prisoners and to lift the restrictions he reluctantly signed into law.
As Wittes wanly concedes, “I do not know if there is a partner in Congress for this deal.”
Like Wittes, Goldsmith sees Obama’s pledge as unredeemable. “Guantanamo is not going to be closed,” he said in a keynote speech at a program at American University’s Washington College of Law on Feb. 18. “It’s not going to happen.”
Goldsmith also echoes Wittes’ point that the Guantanamo of today is not the law-free zone created by the Bush administration. Guantanamo prisoners can challenge their detention via habeas corpus in federal court — thanks not to the president or Congress but to the Supreme Court. Obama has established administrative review procedures for prisoners who may still be held even after losing habeas corpus cases. In Goldsmith’s view, these are “unprecedented” protections for people held in military detention.
For Goldsmith, military detention at Guantanamo on these terms is the least bad of the actual alternatives for suspected terrorists. Civilian trials are ruled out, military commissions problematic, and transfer to other countries increasingly difficult. He worries most that in the absence of a clear detention policy, military and intelligence personnel may simply conclude that the best option on an undefined battlefield is to kill, not capture. That course, he says, is “not good for human rights, not good for intelligence collection, and not good for national security.”
The supposed dilemma seen by Goldsmith and Wittes is not, however, an inevitable aspect of the war on terror. The 48 Guantanamo detainees who have been deemed too dangerous to release but “not feasible for prosecution” are thought to be in that category mostly because of torture-tainted evidence inadmissible in civilian or military tribunals. With interrogation policies cleaned up — as the Obama administration claims — future detainees ought to be amenable to trial in one or the other forum.
Instead of real trials, Goldsmith and Wittes acquiesce in a system of detention for the duration of the no-end-in-sight war on terror with limited review first through habeas corpus and then by an administrative board. Whatever changes may have been instituted at Guantanamo, this is not a system that the United States can convincingly sell to a skeptical world as fair and just.
Postscript: In a respectful and thoughtful reply, Ben Wittes says that I underestimate the number of Guantanamo detainees who will never be tried and that I erred in attributing the impossibility of prosecution primarily to torture-tainted evidence. Under deadline haste, I did fail to check the Guantanamo Detainee Task Force Report’s explanation of the difficulties of prosecution, which primarily include evidence-gathering and charge-bringing problems. In my blog, I suggested torture-tainting will fade as a problem; Ben says those other issues will persist. I would hope that military and intelligence agents will do better in those regards in the future and thus that those problems too will recede. As to Ben’s other points, I will simply say that I could not hope for a better, wiser correspondent with whom to agree to disagree.
Wednesday, February 23, 2011
Obama's DOMA Stand Could Doom Other Anti-Gay Laws
The Obama administration will no longer defend the central provision of the 1996 law that prevents the federal government from providing marriage-based benefits to legally married same-sex couples.
In announcing the new stance on Wednesday (Feb. 23), Attorney General Eric H. Holder Jr. said the government has concluded that all anti-gay laws should be subject to “heightened scrutiny” in the courts. The Defense of Marriage Act (DOMA), now being challenged in federal cases in Massachusetts, Connecticut and New York, cannot meet that standard, Holder said.
The government’s call for heightened scrutiny, if adopted by courts, could doom other anti-gay laws, including the bans on same-sex marriages on the books in 38 states.
Gay rights groups hailed the administration’s move, which Holder said was personally approved by President Obama. Evan Wolfson, president of the New York City-based Freedom to Marry, praised Obama and Holder “for acknowledging that sexual orientation discrimination has no place in American life and must be presumed unconstitutional.”
Laws such as DOMA “must be looked at with looked at with skeptical eyes, not rubber-stamped,” Wolfson said.
The government announced the position in advance of filings due March 11 in the two most recent challenges to DOMA in federal district courts in Connecticut and New York. For appellate purposes, those two states are both in the Second Circuit. Plaintiffs in those cases, legally married in their home states, say DOMA prevents the federal government from providing them specified financial benefits, such as tax breaks available to other married couples, Social Security benefits and employee health benefits.
The government had previously defended the constitutionality of DOMA in a case filed in Massachusetts, which is in the First Circuit. In that case, a district court judge in July 2010 ruled the law unconstitutional.
The government adopted the new position, Holder explained, because the Second Circuit, unlike the First, has no binding precedent on what standard of review to apply to laws that treat gays and lesbians differently from other people. With the government forced to address the issue for the first time, Holder said, “the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny.”
The Massachusetts case is currently pending before the First U.S. Circuit Court of Appeals. The First Circuit applies a relaxed “rational basis” test to laws aimed at gays and lesbians. In his ruling in July, U.S. District Court Judge Joseph Tauro said DOMA could not satisfy that test because it serves no legitimate government purpose.
Holder announced the new position in a statement as well as in a letter to House Speaker John Boehner. The Justice Department is required to notify Congress whenever it concludes that it will not follow the normal practice of defending a law in court despite policy disagreements with the measure.
On Capitol Hill, leading Republican lawmakers criticized the move. “The Obama administration is making a tragic mistake in walking away from the defense of traditional marriage,” said Rep. Jim Jordan, an Ohio Republican who chairs the Republican Study Conference, a group of GOP conservatives.
In the letter, Holder said that laws based on sexual orientation meet four established criteria for triggering heightened scrutiny when challenged in court. Gays and lesbians, he said, have suffered a “significant history of purposeful discrimination,” both by government and private entities. In addition, Holder said that sexual orientation is now widely recognized as an “immutable” characteristic, that gays and lesbians have “limited political power” and that sexual orientation “bears no relation to ability to perform or contribute to society.”
Holder said the government will notify the First Circuit of its new position. The notification to Congress affords lawmakers or others the opportunity to take steps to defend the law in court if they want. Boehner’s office had no immediate response to the move.
The new stance could affect the government’s defense of the “don’t ask, don’t tell” policy on gays in military. That policy remains in effect despite the law approved by Congress and signed by Obama in late December that calls for it to be repealed after a specified certification by Obama, the secretary of defense and the chairman of the Joint Chiefs of Staff. A federal judge in California ruled the policy unconstitutional in October; the government appealed the case to the Ninth U.S. Circuit Court of Appeals, which refused the government’s request last month to put the case on hold while awaiting the Pentagon review.
In announcing the new stance on Wednesday (Feb. 23), Attorney General Eric H. Holder Jr. said the government has concluded that all anti-gay laws should be subject to “heightened scrutiny” in the courts. The Defense of Marriage Act (DOMA), now being challenged in federal cases in Massachusetts, Connecticut and New York, cannot meet that standard, Holder said.
The government’s call for heightened scrutiny, if adopted by courts, could doom other anti-gay laws, including the bans on same-sex marriages on the books in 38 states.
Gay rights groups hailed the administration’s move, which Holder said was personally approved by President Obama. Evan Wolfson, president of the New York City-based Freedom to Marry, praised Obama and Holder “for acknowledging that sexual orientation discrimination has no place in American life and must be presumed unconstitutional.”
Laws such as DOMA “must be looked at with looked at with skeptical eyes, not rubber-stamped,” Wolfson said.
The government announced the position in advance of filings due March 11 in the two most recent challenges to DOMA in federal district courts in Connecticut and New York. For appellate purposes, those two states are both in the Second Circuit. Plaintiffs in those cases, legally married in their home states, say DOMA prevents the federal government from providing them specified financial benefits, such as tax breaks available to other married couples, Social Security benefits and employee health benefits.
The government had previously defended the constitutionality of DOMA in a case filed in Massachusetts, which is in the First Circuit. In that case, a district court judge in July 2010 ruled the law unconstitutional.
The government adopted the new position, Holder explained, because the Second Circuit, unlike the First, has no binding precedent on what standard of review to apply to laws that treat gays and lesbians differently from other people. With the government forced to address the issue for the first time, Holder said, “the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny.”
The Massachusetts case is currently pending before the First U.S. Circuit Court of Appeals. The First Circuit applies a relaxed “rational basis” test to laws aimed at gays and lesbians. In his ruling in July, U.S. District Court Judge Joseph Tauro said DOMA could not satisfy that test because it serves no legitimate government purpose.
Holder announced the new position in a statement as well as in a letter to House Speaker John Boehner. The Justice Department is required to notify Congress whenever it concludes that it will not follow the normal practice of defending a law in court despite policy disagreements with the measure.
On Capitol Hill, leading Republican lawmakers criticized the move. “The Obama administration is making a tragic mistake in walking away from the defense of traditional marriage,” said Rep. Jim Jordan, an Ohio Republican who chairs the Republican Study Conference, a group of GOP conservatives.
In the letter, Holder said that laws based on sexual orientation meet four established criteria for triggering heightened scrutiny when challenged in court. Gays and lesbians, he said, have suffered a “significant history of purposeful discrimination,” both by government and private entities. In addition, Holder said that sexual orientation is now widely recognized as an “immutable” characteristic, that gays and lesbians have “limited political power” and that sexual orientation “bears no relation to ability to perform or contribute to society.”
Holder said the government will notify the First Circuit of its new position. The notification to Congress affords lawmakers or others the opportunity to take steps to defend the law in court if they want. Boehner’s office had no immediate response to the move.
The new stance could affect the government’s defense of the “don’t ask, don’t tell” policy on gays in military. That policy remains in effect despite the law approved by Congress and signed by Obama in late December that calls for it to be repealed after a specified certification by Obama, the secretary of defense and the chairman of the Joint Chiefs of Staff. A federal judge in California ruled the policy unconstitutional in October; the government appealed the case to the Ninth U.S. Circuit Court of Appeals, which refused the government’s request last month to put the case on hold while awaiting the Pentagon review.
Monday, February 21, 2011
Justices’ Off-Bench Roles Put Court’s Reputation at Risk
Within a week of President John F. Kennedy’s assassination on Nov. 22, 1963, President Lyndon B. Johnson created a commission to investigate the slaying and leaned hard on Chief Justice Earl Warren to agree to serve as chairman. Warren reluctantly took on the assignment and over the next seven months led a highly limited review of evidence gathered by others that concluded — just as Johnson wanted — that Lee Harvey Oswald had acted alone: no conspiracy.
Warren apparently managed to juggle the commission’s work with his Supreme Court duties, but the commission’s report is now recognized as woefully inadequate. The fault was not Warren’s: the CIA withheld important evidence of Oswald’s activities and connections. But wherever the blame may lie, Warren’s extrajudicial assignment did no good for him or for the court.
No sitting Supreme Court justice has taken on an analogous off-the-bench assignment since then, apart from the chief justice’s statutorily designated position as chancellor of the Smithsonian Institution. In that role too, chief justices have not shined. Chief Justice William H. Rehnquist in 2001 helped authorize a whopping salary increase for the Smithsonian’s general secretary, who resigned in 2007 after disclosures of absenteeism and authoritarianism. Despite the governance crisis, Rehnquist’s successor, John G. Roberts Jr., that year helped water down recommended reforms, including a reduction of the chief justice’s role to non-voting board member.
The lesson of these episodes seems clear: justices should stick to their knitting. But Noah Feldman, a Harvard Law School professor and former Supreme Court law clerk, argues that the justices should spend more time off the bench, even to the point of taking on political responsibilities and engaging in political activities.
The justices’ “disengagement from public life,” Feldman writes in an op-ed in The New York Times, stems from “the imagined ideal of the cloistered justice.” This monastic imperative, he says, has real costs. “Isolated justices make isolated decisions,” Feldman writes. The evidence: Clinton v. Jones (1997), with its naïve assumption that allowing a civil suit (see: Paula Jones) against a sitting president (see: Bill Clinton) would not interfere with his duties as chief executive (see: impeachment).
Feldman writes against a specific context: the current controversy over off-bench activities of conservative justices Antonin Scalia and Clarence Thomas. Common Cause is calling for an ethics investigation of Scalia’s and Thomas’s participation in events sponsored in 2007 and 2008, respectively, by the billionaire Charles Koch, bankroller of conservative and libertarian causes. And Scalia came in for widespread criticism — from the New York Times editorial board, among others — for his Jan. 24 appearance before a closed-door meeting of the House Tea Party Caucus.
With reason, Feldman describes the controversy as “suspiciously partisan.” Common Cause, the campaign-finance reform group, is straining to argue that Scalia and Thomas were so beholden to Koch to require recusal from the case, Citizens United v. Federal Election Commission (2010), that freed Koch’s company and others to spend freely on political activities. Scalia’s reported lecture on constitutional interpretation is more problematic, but mainly because it was behind closed doors to an overtly partisan group.
Feldman is not content, however, to knock down the attacks on Scalia and Thomas. With a selective retelling of history, Feldman argues that Supreme Court justices have committed politics ever since Chief Justice John Marshall, who served as secretary of state for the last month of John Adams’ presidency after having assumed his position on the court. Charles Evans Hughes accepted the Republican nomination for president in 1916 while still serving as an associate justice. And Robert Jackson took a year’s leave in 1945-46 to serve as chief prosecutor at the Nuremberg war crimes trials.
The brief overlap of Marshall’s dual roles is de minimis and, in any event, unthinkable in present day. So too, given the realities of contemporary campaign finance, a justice’s active quest for political office without leaving the bench. As for Jackson, he was praised for his opening and closing statements at the Nuremberg trials, but faulted for intemperance and weak cross-examination. And the court was left to decide cases for a full term with eight members and, after Chief Justice Harlan Fiske Stone’s death in late April 1946, only seven — surely at some loss.
As a clerk to the reclusive justice David H. Souter, Feldman saw the monastic ideal at its extreme. He is right to think — without saying so — that the court could benefit from justices who come not from lower courts but from the political world. But he is wrong to excuse Chief Justice Fred Vinson for giving President Harry Truman a green light to seize the steel mills and wrong to lightly pass over Abe Fortas’s poor judgment in advising LBJ while on the bench.
Feldman is especially wrong to argue for politically engaged justices with the court split as never before between Republican- and Democratic-appointed blocs. The current division pitting five conservative Republicans against four liberal Democrats feeds the cynical view that Supreme Court cases are in the end just politics. The justices can see and interact with the world in many venues: judicial conferences, college campuses, civic clubs, and so forth. But with every partisan appearance, a justice puts at risk his or her reputation as well as the court’s commitment to equal justice for all.
Warren apparently managed to juggle the commission’s work with his Supreme Court duties, but the commission’s report is now recognized as woefully inadequate. The fault was not Warren’s: the CIA withheld important evidence of Oswald’s activities and connections. But wherever the blame may lie, Warren’s extrajudicial assignment did no good for him or for the court.
No sitting Supreme Court justice has taken on an analogous off-the-bench assignment since then, apart from the chief justice’s statutorily designated position as chancellor of the Smithsonian Institution. In that role too, chief justices have not shined. Chief Justice William H. Rehnquist in 2001 helped authorize a whopping salary increase for the Smithsonian’s general secretary, who resigned in 2007 after disclosures of absenteeism and authoritarianism. Despite the governance crisis, Rehnquist’s successor, John G. Roberts Jr., that year helped water down recommended reforms, including a reduction of the chief justice’s role to non-voting board member.
The lesson of these episodes seems clear: justices should stick to their knitting. But Noah Feldman, a Harvard Law School professor and former Supreme Court law clerk, argues that the justices should spend more time off the bench, even to the point of taking on political responsibilities and engaging in political activities.
The justices’ “disengagement from public life,” Feldman writes in an op-ed in The New York Times, stems from “the imagined ideal of the cloistered justice.” This monastic imperative, he says, has real costs. “Isolated justices make isolated decisions,” Feldman writes. The evidence: Clinton v. Jones (1997), with its naïve assumption that allowing a civil suit (see: Paula Jones) against a sitting president (see: Bill Clinton) would not interfere with his duties as chief executive (see: impeachment).
Feldman writes against a specific context: the current controversy over off-bench activities of conservative justices Antonin Scalia and Clarence Thomas. Common Cause is calling for an ethics investigation of Scalia’s and Thomas’s participation in events sponsored in 2007 and 2008, respectively, by the billionaire Charles Koch, bankroller of conservative and libertarian causes. And Scalia came in for widespread criticism — from the New York Times editorial board, among others — for his Jan. 24 appearance before a closed-door meeting of the House Tea Party Caucus.
With reason, Feldman describes the controversy as “suspiciously partisan.” Common Cause, the campaign-finance reform group, is straining to argue that Scalia and Thomas were so beholden to Koch to require recusal from the case, Citizens United v. Federal Election Commission (2010), that freed Koch’s company and others to spend freely on political activities. Scalia’s reported lecture on constitutional interpretation is more problematic, but mainly because it was behind closed doors to an overtly partisan group.
Feldman is not content, however, to knock down the attacks on Scalia and Thomas. With a selective retelling of history, Feldman argues that Supreme Court justices have committed politics ever since Chief Justice John Marshall, who served as secretary of state for the last month of John Adams’ presidency after having assumed his position on the court. Charles Evans Hughes accepted the Republican nomination for president in 1916 while still serving as an associate justice. And Robert Jackson took a year’s leave in 1945-46 to serve as chief prosecutor at the Nuremberg war crimes trials.
The brief overlap of Marshall’s dual roles is de minimis and, in any event, unthinkable in present day. So too, given the realities of contemporary campaign finance, a justice’s active quest for political office without leaving the bench. As for Jackson, he was praised for his opening and closing statements at the Nuremberg trials, but faulted for intemperance and weak cross-examination. And the court was left to decide cases for a full term with eight members and, after Chief Justice Harlan Fiske Stone’s death in late April 1946, only seven — surely at some loss.
As a clerk to the reclusive justice David H. Souter, Feldman saw the monastic ideal at its extreme. He is right to think — without saying so — that the court could benefit from justices who come not from lower courts but from the political world. But he is wrong to excuse Chief Justice Fred Vinson for giving President Harry Truman a green light to seize the steel mills and wrong to lightly pass over Abe Fortas’s poor judgment in advising LBJ while on the bench.
Feldman is especially wrong to argue for politically engaged justices with the court split as never before between Republican- and Democratic-appointed blocs. The current division pitting five conservative Republicans against four liberal Democrats feeds the cynical view that Supreme Court cases are in the end just politics. The justices can see and interact with the world in many venues: judicial conferences, college campuses, civic clubs, and so forth. But with every partisan appearance, a justice puts at risk his or her reputation as well as the court’s commitment to equal justice for all.
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