On Gay Marriage, Will High Court See a "Tipping Point"?

As Maine goes, so goes the nation.

— Traditional political adage

      The press release hit e-mail boxes shortly before midnight on election night (Nov. 6): “Mainers Approve Marriage for Same-Sex Couples; First Time Freedom to Marry Passed in Ballot Measure.” For gay rights advocates, the vote in Maine broke a string of 31 consecutive defeats in statewide voting on marriage equality. By the next morning, however, they could claim a four-state winning streak, as voters in Maryland and Washington state also approved measures to recognize same-sex marriages and Minnesotans rejected a measure to ban same-sex marriage in the state.
      Voting in all four states was close, but not razor-thin. The gay marriage proposals won with 53 percent in Maine, 52 percent in Maryland and Washington. In Minnesota, the constitutional amendment to define marriage as the union of one man and one woman failed with a little under 48 percent of the vote.
      The margins were far smaller than the 2-to-1 majorities that gay marriage opponents typically gained in their string of victories dating from 1998 in Alaska and Hawaii. Still, a win is a win, however close, whether in baseball or politics. Gay rights organizations were trumpeting the results even as gays and lesbians around the country were hailing the victories as a watershed event. “The word tipping point comes to mind,” Ian McCann, a gay journalist in Dallas, posted on his Facebook page.
      LGBT Americans had other grounds for celebrating. Tammy Baldwin, a Democrat, will become the first openly LGBT member of the Senate in January after defeating her Republican opponent, popular former governor Tommy Thompson, by a 5 percent-plus margin. Baldwin’s House seat was won by another openly gay Democrat, Mark Pocan. Mark Takano, a Japanese American, became the first openly gay person of color to be elected to Congress by winning a House seat in California. In all, the Gay and Lesbian Victory Fund counts six openly gay members of the U.S. House and seven candidates who won election as the first or the only out members of their state legislatures. “This was a breathtaking leap forward,” said Chuck Wolfe, president and CEO of the fund.
      Gays and lesbians were also celebrating President Obama’s re-election. Obama had disappointed the LGBT community in his first two years in office by moving slowly on repealing the military’s “don’t ask, don’t tell” policy and failing to get behind a federal bill to ban anti-gay discrimination. But he solidified support after signing the “don’t ask, don’t tell” repealer in December 2010 and then again when he endorsed marriage equality for same-sex couples in May 2012.
      More important than any individual race or ballot measure, gay marriage appears to have achieved majority support nationwide, according to several recent polls, and with that support appears to be receding as a political wedge issue. Republican strategists used anti-gay marriage amendments in 2004 to help drive the GOP base to the poll. The tactic may or may not have helped George W. Bush carry Ohio and with it win re-election, but regardless there was little evidence in the 2012 balloting that support for gay marriage carried a political cost. At the head of the ticket, Republican Mitt Romney said he opposed gay marriage but did not highlight the issue.
      The victories in Maryland and Washington came after state legislatures voted to recognize same-sex marriages; in both states, Democratic governors pushed the measures through Democratic-controlled legislatures, but won only thanks to a handful of votes from Republican lawmakers backing the party lines. Opponents forced referendums on the measures, professing confidence that voters would reject the laws; they were wrong.
      Once the newly approved laws take effect, gay marriage will be legal in nine states — Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington — plus the District of Columbia. Of those 10 jurisdictions, elected lawmakers voted their approval in eight — all but Iowa and Massachusetts. Opponents can no longer blame activist judges alone for “redefining” marriage; the change is now coming through the political process.
      The argument over the litigation strategy versus the political strategy has simmered within the LGBT community. Those who favored going to courts argued for boldly claiming constitutional rights now, not later; those who stressed the political route warned of a backlash that could harm, not help, the cause. From the perspective of 2012, it appears that both sides can claim vindication. Without litigation, the issue would never have risen to the top of the national agenda. Without victories in legislatures and at the ballot box, favorable court rulings will be hard to win and — as in California, with Proposition 8 — at risk of reversal.
      The wall of anti-gay marriage constitutional amendments, adopted in most red and a handful of blue states, now poses a daunting obstacle for marriage equality advocates. Reversing them through the political process is out of the question today, and perhaps for the foreseeable future. For that reason, the focus of attention must inevitably shift to the Supreme Court, which could decide to hear the constitutional challenge to Proposition 8 later this term. As Mr. Dooley wisely observed, the Supreme Court reads the election returns. It remains to be seen whether the justices will look to Maine as a bellwether on this issue.

Drone War Needs Close Look From Next President

      Barack Obama campaigned in 2008 on a promise to turn the country’s back on the Bush administration’s war on terrorism policies. Guantánamo was to be closed, “enhanced interrogation techniques” ended, and a friendlier face presented to the Muslim world. Four years later, Guantánamo remains open, military trials continue to be used, and remote-controlled U.S. drones are targeting suspected al Qaeda operatives in three Islamic countries — Pakistan, Somalia, and Yemen — with the inevitable risk of collateral damage to innocent civilians.
      With the present campaign dominated by a single domestic issue — the U.S. economy — human rights concerns have gone all but unaddressed. But U.S. human rights groups have presented Obama and his Republican challenger Mitt Romney with ambitious agendas for the next president. In separate papers, Amnesty International USA and a coalition of groups led by Freedom House renew the call to close Guantánamo, urge more accountability on the use of drones, and ask for stronger U.S. measures to support democratization and protect human rights abroad.
      Both papers stress the importance of U.S. leadership on international human rights issues. That theme should resonate with internationalist liberals as well as conservative adherents to the doctrine of American “exceptionalism.” And Freedom House takes time to pat the Obama administration on the back for taking a lead role on such issues as LGBT rights, Internet freedom, and general women’s rights. Perhaps those policies will be maintained whichever candidate wins.
      Conversely, many of the proposals in both papers are unlikely to make much if any progress whatever the outcome of the presidential election. The next Congress seems all but certain to look much the current one: a Republican-controlled House, Democratic-controlled Senate, and no sudden outpouring of bipartisanship. On that basis, it seems unlikely that Congress will relent in its stubborn opposition to closing Guantánamo or trying the suspected “enemy combatants” in civilian instead of military courts. And Amnesty International is all but certain to be disappointed in its wish list of human rights treaties for the Senate to ratify. Nor is the United States likely to join the International Criminal Court in Obama’s second term or in a Romney administration.
      By contrast, the president himself is the decision-maker on the common demand in both papers for a re-evaluation and recalibration of the Obama administration’s expanded use of drones to target al Qaeda. Amnesty asks the two candidates: “Will you end unlawful killings, bring the use of drones in line with international human rights and humanitarian law, and make public the Department of Justice memo that reportedly details the legal rationale for ‘targeted killings?’”
      In like vein, the Freedom House-led coalition calls on the next president to “reevaluate and publicly clarify the criteria and the basis for targeting . . . decisions, the process by which such decisions are made, and the mechanisms in place to ensure compliance with international law and the protection of civilians.” Amnesty International USA signed on to the coalition’s letter, which also drew support from such leading human rights groups as the American Civil Liberties Union, Human Rights First, and Human Rights Watch.
      Obama’s embrace of the drone war discomfits his supporters on the political left even as it strengthens his national security credentials with centrist Democrats and independents. For his part, Romney endorsed the use of drones in the final presidential debate, but with a significant caveat: “We can’t kill our way out of this.”
      The human rights groups’ call for greater transparency echoes the view of news organizations that have attempted to report on the drone war. “Accurate information is hard to come by,” Margaret Sullivan, the New York Times’s newly appointed public editor or ombudswoman, wrote in a column in mid-October. The Washington Post endorses the use of drones, but called in a Nov. 1 editorial for “greater disclosure, more political accountability, more checks and balances and more collaboration with allies.”
      In her column, Sullivan cited a report by the Bureau of Investigative Journalism in Britain that what Sullivan calls this “push-button war” claimed between 282 and 535 civilian lives, including 60 children, during Obama’s first three years in office. The administration insists the number is far lower. Sullivan goes on to quote Sarah Knuckey, a human rights investigator now at New York University Law School, as having found widespread fear of drone strikes among Pakistanis when she visited Pakistan recently.
      The casualty count of al Qaeda militants is likewise a subject of sharp dispute. The government appears to count any adult males killed in drone strikes as militants unless there is exonerating evidence. A new report by human rights investigators for Stanford and New York University law schools urges journalists to make that notation in any body-count stories. The report also contends that the drone strikes have aided recruitment for anti-American groups and, on that basis, questions how valuable they are in making the United States safer.
      With Obama and Romney in seeming agreement, the conflicting accounts and assessments went unexplored in the presidential campaign. But the next commander in chief would be well served to heed the calls from many quarters to take a clear-eyed, hard-headed look at the drone war before deciding how much further, if at all, to extend it.

Making Every Vote Count in Presidential Elections

      As hard to believe as it may seem, the Framers of the Constitution took great pride in the method they devised for electing the president of the United States. Writing in Federalist No. 68, Alexander Hamilton went so far as to say that “if it be not perfect, it is at least excellent.”
      Today, Americans are less than enamored of what has come to be called the Electoral College — a term that actually does not appear in the Constitution. Gallup polls dating back to the 1940s have consistently found majority support for direct popular election of the president. The most recent survey, in October 2011, found 62 percent of those responding in favor of direct popular election. Changing the system had majority support from Republicans (53 percent) for the first time since 2000 as well as stronger support from independents (61 percent) and Democrats (75 percent).
      Despite public sentiment, the Electoral College has proven stubbornly resistant to change. A constitutional amendment for direct popular election came tantalizingly close in Congress in 1970. But it failed in the Senate when small-state senators, Republicans and Democrats, filibustered it to death.
      Since then, there has been nothing by way of serious effort to change. But perhaps the 2012 campaign can give new life to the issue by demonstrating to Americans in a majority of states that Electoral College math makes them largely irrelevant in a presidential contest. Instead, the candidates focus their attention on a handful of “battleground” states — think Ohio — whose issues assume disproportionate importance in determining the outcome.
      The flaws of the Electoral College system could have been recognized from the start. Hamilton saw two main virtues in the system, but neither actually materialized. Hamilton reasoned that the electors would be “men [sic] most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation. . . .” In addition, the electors, barred from holding any other position in the national government, would be immune from “cabal, intrigue, or corruption.”
      The electors never deliberated as such. The Constitution prevented deliberation by requiring the electors to meet in their respective state capitals: thus, there never has been an Electoral College as such. Today, the electors are mere placeholders in a system that is in large part popular election. Presidential electors typically are not even listed on the ballot and cast their votes as pledged for their party’s candidate except for the very occasional “faithless” elector.
      The emergence of political parties rendered the Framers’ fear of intrigue by foreign powers irrelevant. Instead, it set the stage for the emergence over time of a political system susceptible to corruption of other kinds: the “spoils system” of Jacksonian politics and the dominant role of financial interests in paying for campaigns since the late 19th century.
      The emergence of political parties also quickly demonstrated the absurdity of the Framers’ idea of choosing the runner-up as vice president. The first contested election, in 1796, produced a Federalist president, John Adams, and his Anti-Federalist foe Thomas Jefferson as vice president. The Twelfth Amendment, ratified in 1804, tied the two offices together. But the amendment left unchanged another original flaw: the decision to throw the election into the House of Representatives if no candidate received a majority of electoral votes.
      That system worked badly in 1800, the only time it has been used. If it were to be used today — say, in the mathematically possible result of a 269-269 electoral vote tie — the one-vote per state rule would give outsized influence to sparsely populated states that happen to be predominantly Republican. But the selection of a vice president would fall to the Senate, which happens to have a Democratic majority today. Thus, political reporters have conjured up the possibility of a President Romney and Vice President Biden — or, in the event of a deadlock in the House, President Biden!
      Apart from this unlikely scenario, the Electoral College seems inconsistent with modern democratic theory simply because it does not guarantee victory to the popular vote winner. Indeed, four men were elected president after losing the popular vote: John Quincy Adams (1824), Rutherford B. Hayes (1876), Benjamin Harrison (1888), and George W. Bush (2000). Tellingly, Adams, Hayes, and Harrison are not regarded as successful presidents; and Bush’s legacy seems likely to be clouded at best.
      Supporters of the Electoral College have a new answer to this issue. They argue that counting electoral votes by states “compartmentalizes” the risk of popular vote-counting fraud or mistakes. A few hundred or even thousand votes wrong here and there typically has no effect on a statewide outcome, they reason. But if every vote counts, bad vote-counting would matter everywhere. In effect, a Florida-style recount, with disputes over butterfly ballots and hanging chads, could be played out all across the country, and the final result lastingly subject to mathematical doubt.
      The notion that the United States cannot count votes accurately sells the country’s electoral system quite short. But, if true, it only underlines the need to reform the voting system, a need underscored by the wrenching debates over voter ID laws in the past few years. In that sense, replacing the Electoral College with direct popular election of the president could serve a valuable purpose by forcing the adoption of national standards to make more real the fundamental democratic premise of one person, one vote — and every vote counts.

Striking Down the Offense Against Marriage Act

      The federal Defense of Marriage Act (DOMA) is all but dead. Seven federal courts have ruled it unconstitutional, and Supreme Court watchers have a growing consensus that at least five justices will agree before the court’s current term ends next June.
      Yet Congress passed this anti-gay marriage law by overwhelming, bipartisan majorities in 1996, and a Democratic president who had support from many gay leaders and gay rights advocates signed it into law. Back then, opponents raised constitutional doubts mainly about the provision — section 2 — that no state was required to recognize same-sex marriages from another state. Some of the opponents said merely that the provision was unnecessary since states have historically had the discretion to determine whether to recognize marriages from other states.
      Far less attention was paid to the provision, section 3, that defined marriage for purposes of federal law as the union of one man and one woman. The federal government had never before established a national definition for marriage, but to many people it seemed unsurprising that the government would have that authority. And the provision seemed to have no immediate impact since no state at the time granted marriage rights to gay or lesbian couples.
      Things are different today. The harm that the law imposes is now tangible and concrete. Thousands of same-sex couples are legally married in the United States. Six states and the District of Columbia allow same-sex couples to marry; so do Canada, the United States’ neighbor to the north, and nine other countries at latest count. At least one state, Maryland, recognizes same-sex marriages from other jurisdictions; and Maryland is one of three states — Maine and Washington are the others — that have measures on the Nov. 6 ballot to legalize same-sex marriages.
      These legal developments unmask the federal law for what it is: not a defense of marriage, but an offense against marriage. Congress approved the law in 1996 for reasons that seemed self-evident: preserving traditional marriages, protecting kids and promoting morality. Today, the law is recognized as denying legally married gay and lesbian couples benefits — financial and otherwise — matter-of-factly extended to opposite-sex couples living in the same state, even on the same block.
      Edith Windsor, the DOMA victim in the most recent federal court decision, was hit with a $363,000 estate tax bill after her wife, Thea Spyer, died in 2009. Windsor and Spyer, New York residents, had married in Canada two years earlier; New York recognized same-sex marriages from other jurisdictions even before the state legislature voted to approve gay marriage in June 2011.
      In opposite-sex marriages, a spouse’s estate passes to his or her surviving spouse without incurring federal tax liability. But under DOMA, Windsor was not eligible for that same, uncontroversial tax benefit. The plaintiffs in other DOMA challenges have suffered similar, if less dramatic, financial disadvantages. The widower of former congressman Gerry Studds was denied Social Security survivors benefits. Several current or former federal employees have been prevented from extending health insurance or retirement to their spouses.
      In ruling for Windsor last week [Oct. 18], the New York-based Second U.S. Circuit Court of Appeals held that laws that single gays and lesbians out for unfavorable treatment are subject to heightened constitutional scrutiny. The majority in the 2-1 decision cited the history of discrimination against gays and their lack of political power to prevent legally sanctioned discrimination.
      Having raised the bar a bit, the court then rejected all of the rationales offered by lawyers for House Republicans to uphold the law. (The Obama administration no longer defends the law.) The court said the law did not help maintain a uniform definition of marriage, protect the federal treasury, preserve a traditional understanding of marriage or encourage responsible procreation.
      The case, Windsor v. United States, is viewed as the best of four cases pending before the Supreme Court for the justices to use to resolve the issue. One reason: Justice Elena Kagan, the former solicitor general, may be disqualified from the other cases, but not from this one. The justices have the cases ready for conference early next month. The Second Circuit must have been aware of that schedule as it rushed its decision out only three weeks after argument.
      When the case is argued, the challengers will certainly face combative questions from Justice Antonin Scalia. The court’s guardian of constitutional originalism will undoubtedly contend that a provision adopted in 1868 — the Fourteenth Amendment’s Equal Protection Clause — was not intended or understood to say anything about gay marriage.
      Scalia will be right on that point, but irrelevant. Despite Scalia’s protests, the Constitution is in fact a living document for an ever-changing country and its people. None of the Fourteenth Amendment’s framers would have understood it to prohibit discrimination on the basis of sex, but the Supreme Court decisions from the 1970s applying the Equal Protection Clause for that purpose are now well established.
      The pivotal vote in the DOMA case likely rests with Justice Anthony M. Kennedy. When he led the court in striking down anti-sodomy laws in 2003, Kennedy made clear his view that the Constitution protects gay and straight people alike. “As the Constitution endures,” Kennedy wrote, “persons in every generation can invoke its principles in their search for greater freedom.” Weighed against those principles, DOMA seems doomed.

Supreme Court Showdown on Affirmative Action

      When the Supreme Court pulled the plug on an ambitious school desegregation plan for Kansas City in 1995, Justice Ruth Bader Ginsburg complained in dissent that the retreat was both “too swift and too soon” (Missouri v. Jenkins). Much the same could be said about the growing discontent among the American public and among many experts about the efforts to use race-conscious admissions policies in order to increase racial and ethnic diversity in U.S. colleges and graduate schools.
      The latest manifestation of this supposed re-examination of racial preferences came last week [Oct. 4] in a report by the Century Foundation written by Richard Kahlenberg, a longtime advocate of using socioeconomic status instead of race or ethnicity to increase diversity in higher education. In presenting the report at the progressive think tank’s Washington office, Kahlenberg bluntly warned that race-based affirmative action “is likely on its way out” — unpopular with the public and under challenge in legislatures, at the ballot box, and in the courts.
      The discontent is fed further by the new book, Mismatch: How Affirmative Action Hurts Student It’s Intended to Help, and Why Universities Won’t Admit It, by UCLA law professor Richard Sander and legal affairs journalist Stuart Taylor Jr. The book elaborates on Sander’s empirical research over the past decade that he says shows many beneficiaries of racial preferences fare badly in college or law school, doomed to failure because they are competing with academically superior classmates.
      The publication of the report and the book were both timed to coincide with the Supreme Court’s oral arguments on Wednesday [Oct. 10] in the latest showdown on affirmative action, Fisher v. University of Texas. The justices are being asked to invalidate UT’s use of race as part of what administrators describe as a “holistic” evaluation of applicants for about one-fifth of the slots in each year’s entering first-year class.
      The Fifth U.S. Circuit Court of Appeals upheld UT’s policies, saying that they conformed to the criteria set out by the court nine years ago in a University of Michigan case, Grutter v. Bollinger (2003). Attorneys representing Abigail Fisher, an unsuccessful white applicant for admission in 2008, argue that UT’s policies go beyond the limited use of race allowed under Grutter. Alternatively, they urge the court to overrule Grutter and severely limit or completely prohibit consideration of race in college and university admissions.
      The case can be handicapped easily: Justice Sandra Day O’Connor, who authored the majority opinion in Grutter, has been succeeded by Samuel A. Alito Jr., a hard-edged conservative who has cast decisive votes against race-conscious policies in two major decisions since his appointment in 2006. For many court-watchers, the only question in the case is not whether but how far the court will go in limiting race-conscious admissions policies.
      Institutionally, however, the court is not supposed to change course simply because of a change in personnel. So the justices need to closely examine UT’s policies, as they have evolved during two decades’ worth of litigation, along with the densely statistical debate waged in friend-of-the-court briefs about the overall impact of racial preferences. On both counts, the evidence is less than clear-cut and the interpretations by opposing sides in sharp conflict.
      For UT, the pivotal question will be whether the university had good reason to re-introduce some consideration of race after Grutter since it was already using an ostensibly race-neutral mechanism to boost enrollment of African American and Hispanic applicants. The state’s “Top Ten Percent” law, passed in 1997, guarantees students in the top 10 percent of their high school graduating classes a slot at UT’s flagship campus in Austin. With black and Latino students concentrated in racially identifiable schools, the law increases their enrollment, but not enough to satisfy the school. Today, blacks comprise about 4.5 percent of UT’s student body, Hispanics 16.9 percent; both figures are below the proportions for the state’s population overall.
      Justices on both sides may cite the broader policy debate to help make their case. Conservatives will surely cite the supposed costs of racial preferences — stereotyping and stigmatizing minority students — along with Sander’s claimed proof of “mismatch.” The statistical argument goes far beyond what can be elaborated in a weekly column, but it can be said at least that Sander’s conclusion is disputed and, if valid, merely shows the need for universities to follow through with well designed and well resourced academic support for affirmative-action admits.
      As for the alleged stigmatization, Sander and Taylor are selective in quoting prominent African Americans as critics of racial preferences, including Supreme Court Justice Clarence Thomas, who has famously described his indignation at bearing “the taint of racial preference.” They do not note that the court’s only Hispanic justice, Sonia Sotomayor, proudly counts herself as “an affirmative action baby,” apparently unaware of any taint due to her status.
      The University of Texas admitted its first African American student in 1950, only after a unanimous Supreme Court decision forced it to do so (Sweatt v. Painter). Sixty years later, the Austin campus is by no means a model of racial harmony, as seen in a recent report of “bleach ballooning” incidents directed at African American students and fraternity parties with anti-immigrant themes. Admissions policies aimed at making the campus more diverse, on paper and in practice, deserve respectful consideration from a Supreme Court dedicated to equal justice under law.

Roberts 4.1: Resetting or Refueling the Right-Wing Agenda?

      John Roberts will step through the maroon curtains promptly at 10 o’clock Monday morning [Oct. 1] to open a new Supreme Court term, his eighth as chief justice of the United States. Refreshed from a teaching gig in Malta and a family vacation in Maine, Roberts will tend to preliminaries and then call the first case: Kiobel v. Royal Dutch Petroleum Co., a major test for human rights litigation.
      From Day One of the new term, the question will be which John Roberts has returned to Washington to lead a court split down the middle between conservatives and liberals. Will it be the Radical Roberts: the Reagan administration alumnus who harbored ambitions back then of overruling Roe v. Wade, abolishing affirmative action, and eliminating the exclusionary rule? Or will it be the Restrained Roberts: the judicious chief justice who saved Obamacare, spared the Voting Rights Act, and rides herd on rambunctious conservative colleagues?
      Time will tell, but maybe sooner rather than later. The court’s first case gives the conservative bloc a chance to scrap three decades of lower court precedents that have allowed foreign victims of human rights violations abroad to sue their abusers in the U.S. court system. A more dramatic showdown looms the next week [Oct. 10] when the court takes up a challenge to race-conscious admissions in colleges and universities, Fisher v. University of Texas, just nine years after the court upheld such policies after a full airing of the issue.
      Judicial restraint and stare decisis — respect for precedent — tilt the scales one way in both cases, but not the way the conservative majority almost certainly wants to rule. Roberts, more than anyone else, will decide whether the conservatives’ wishes are to become the law of the land.
      Roberts’ four conservative colleagues voted this spring to invalidate the entirety of a 2,700-page law, President Obama’s signature domestic policy achievement, on the basis of a constitutional theory that was viewed as fanciful just three years earlier. Roberts disappointed them — angered them, according to the account leaked to CBS’s Jan Crawford — by saving the law and leaving its fate to “political branches.” The chief justice was pilloried in Republican and conservative circles for his betrayal.
      Under hostile fire, Roberts responded with his signature charm and wit. Speaking to a judicial conference on June 29 — one day after the ruling on the health care law — he joked that he would be spending the next two weeks teaching on the island of Malta, “an impregnable fortress.” “It seemed like a good idea,” he said. Asked at the same conference whether he favored any changes in Supreme Court rules, Roberts said he would eliminate “the odd historical quirk that the chief justice only gets one vote.”
      Roberts’ charm works wonders. The other justices in the conservative bloc are more than a bit charm-challenged. Antonin Scalia may be a delightful companion at the opera, but on the bench he is growing ever more argumentative, dogmatic, and churlish. Samuel A. Alito Jr. has yet to be seen to smile after six-and-half-years on the bench. Clarence Thomas’ silence over the same period is the outward manifestation of the rigid certitude that marks his jurisprudence. And then there is Anthony M. Kennedy, the pivotal vote on so many issues, whose earnestness must be as tiresome to his colleagues as it is to most of the Supreme Court press corps and many others.
      The court’s first two major cases for the term showcase the strength of the conservative bloc. The court heard arguments on Kiobel in February on the limited question whether corporations can be subject to liability under the Alien Tort Statute — in this case, Royal Dutch Petroleum for alleged complicity with the Nigerian military dictatorship in a brutal putdown of oil drilling protests. At Alito’s prompting, the court decided to ask for new arguments on the issue of whether human rights violations from abroad carried out by foreigners belong in U.S. courts at all. Court watchers infer that the answer is a done deal: no.
      In the University of Texas affirmative action case, the court granted review of the Fifth Circuit’s decision upholding the admissions policies despite procedural issues that would have doomed any appeal that the majority did not want to hear. The white plaintiff, Abigail Fisher, would not have been admitted to UT under the race-neutral policies that her lawyers advocate; and her only remaining claim is for the refund of her $100 application fee. Given the conservatives’ votes on other race-conscious policies, the only question seems to be not whether but how far they will go in limiting the use of race in admissions policies.
      Supreme Court scholars define a “natural court” as the time period with no changes in personnel on the court. By that definition, the court is now denominated as “Roberts 4,” the fourth different court of Roberts’ tenure. But Roberts’ pivotal vote in the health care case is at least as important a milestone as a new justice.
      Roberts has joined with the other conservatives in scrapping or bending precedents on issues ranging from campaign finance and gun rights to criminal law and civil litigation. Arguments in the first two major cases may give useful clues on whether Roberts wants to refuel that right-wing agenda or reset the court on a more restrained course.

Looking to Courts to Protect Cell Phone Privacy

      Justice Samuel A. Alito Jr. seems an unlikely leader of a pro-privacy bloc on the Supreme Court. But he assumed that role in last term’s decision that set some yet-to-be-defined limits on law enforcement use of global positioning system (GPS) surveillance to track suspected criminals.
      Now, the Orwellian specter of a government eye-in-the-sky that Alito identified in his concurring opinion in the case, United States v. Jones, seems to be coming to pass. A federal appeals court gave thumbs-up last month [Aug. 14] to federal agents’ monitoring of a drug suspect’s cell phone signals to track him across country. This is precisely the kind of no-touch electronic surveillance that Alito warned has become common in the wired world today.
      In Jones, the Supreme Court ruled that the government’s attachment of a GPS device to a suspect’s car amounts to a search subject to the Fourth Amendment’s requirement either to get a warrant or qualify for an exception to the warrant requirement. Writing for a five-justice majority, Justice Antonin Scalia reasoned by analogy that back in 1791 the Framers would not have taken kindly to a constable concealing himself inside a suspect’s carriage to gather evidence of criminal conduct.
      Alito, joined by three liberal justices, said Scalia’s simple approach leaves a more worrisome law enforcement threat to privacy untouched. He pointed to the increasingly widespread electronic tracking of our comings and goings that do not involve attaching any device to our vehicles. Examples: closed-circuit video monitoring in public areas and automated toll collection systems for drivers with an E-Z pass.
      Most significantly, Alito continued, “cell phones and other wireless devices now permit wireless carriers to track and record the location of users.” Many cell phone owners may appreciate this functionality: think of the hiker lost in the wilderness. But the cell phone signals tracked by the carrier can also be tracked by the police with the user unaware of being tailed.
      That’s what happened to truck driver Marshall Skinner in July 2006 as he headed east out of Tucson in an RV loaded with about 1,100 pounds of marijuana. Skinner was using a pay-as-you-go cell phone to keep in touch as he headed for his destination in Tennessee. Unbeknownst to Skinner, federal Drug Enforcement Administration (DEA) agents had gotten an order from a federal magistrate authorizing the phone company to release the information needed to monitor the cell phone’s “ping” data so they could track him on the drive.
      When Skinner pulled in for the night near Abilene, Texas, DEA agents were dispatched from Lubbock to go investigate. Skinner denied the agents’ request to search the vehicle, but they went in anyway after a drug-sniffing dog alerted them to the likely presence of narcotics.
      Indicted for drug and money laundering, Skinner sought to suppress the evidence on the ground that the agents’ use of GPS location information emitted from his cell phone was a warrantless search that violated the Fourth Amendment. The judge rejected the motion. Skinner was then convicted and sentenced to roughly 20 years in prison.
      In August, a three-judge panel of the Sixth U.S. Circuit Court of Appeals upheld the conviction. Writing for the majority, Judge John Rogers woodenly rejected Skinner’s invocation of a right to privacy. “When criminals use modern technological devices to carry out criminal acts and to reduce the possibility of detection, they can hardly complain when the police take advantage of the inherent characteristics of those very devices to catch them,” Rogers wrote in the decision. Judge Eric Clay joined Rogers’ opinion.
      In a concurring opinion, Judge Bernice Donaldson said the majority had misstated the issue. “The law affords the same constitutional protections to criminals and law-abiding citizens alike,” Donaldson explained. The issue, she continued, was “whether society is prepared to recognize a legitimate expectation of privacy in the GPS data emitted from any cell phone.” To that question, Donaldson said yes. But she joined in upholding the conviction by relying on the good-faith exception to the exclusionary rule.
      Donaldson’s view is reminiscent of the moment in the argument in the Jones case when Chief Justice John G. Roberts Jr. asked the government’s lawyer whether police could attach GPS devices to the justices’ cars. Suddenly, the case was no longer about criminals but about the constitutional protections for all of us — private citizens or even government officials.
      In his opinion, Alito conceded that technological developments are eroding our expectations of privacy. Even so, Alito argued, some lines need to be drawn. In Jones’ case, federal agents and Washington, D.C., police tracked his movements for 28 days until they finally nabbed him at a drug warehouse. With the evidence thrown out, the government is hoping to put together enough other information to convict Jones again in a trial set for January.
      The line-drawing, Alito suggested, might best be done by legislative bodies, which he said are “well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.” Alito considerably overestimates the abilities of Congress and state legislatures. For now, it seems more likely that protecting cell phone privacy will be up to the courts, including, ultimately, the Supreme Court.