When future Supreme Court justice Louis Brandeis was defending early in the 20th century the constitutionality of an Oregon law limiting hours of laundry workers, he adopted a then unheard of legal strategy. Brandeis filled his brief to the Supreme Court not with legal abstractions, but with documented facts showing the adverse health and social effects of long hours on laundry workers, virtually all of them women.
This first ever “Brandeis brief,” recently displayed at the court by the curator’s office, revolutionized Supreme Court practice. Today, advocates and judges alike emphasize facts, not legal abstractions, as a matter of course in constitutional litigation.
Federal judge Vaughn Walker understood this mode of constitutional adjudication in his precedent-making decision on Aug. 4 to strike down Proposition 8, the voter-approved initiative in California denying marriage rights to same-sex couples. The guts of his 136-page ruling in Perry v. Schwarzenegger, available here, consists of 50 pages of “findings of fact,” carefully annotated to testimony from the 2-1/2 week trial. Those findings point ineluctably to one conclusion: Prop. 8 has no purpose or effect other than the impermissible goals of denying gay men and lesbians the liberty to define their own life relationships and demoting them to second-class status — legally, socially, and economically.
Those findings make it difficult, but not impossible, for a higher court to reverse Walker’s ruling. But they are aimed directly at the Supreme Court justice whose vote is essential to a victory for gay rights advocates in the case: Anthony M. Kennedy.
Twice before, Kennedy has written and cast a pivotal vote in decisions striking down anti-gay enactments. In Lawrence v. Texas (2003), Kennedy concluded for a five-justice majority that a Texas law criminalizing gay sex infringed a protected liberty interest in defining one’s intimate relationships. Eight years earlier, in Romer v. Evans (1995), Kennedy led a 6-3 majority in concluding that a Colorado initiative forbidding passage of anti-gay discrimination laws was an animus-motivated enactment aimed solely at shutting gays and lesbians out of the political process.
In his ruling, Walker began with a series of numbered findings of fact demonstrating the obvious and undisputed benefits of marriage. “Material benefits, legal protections, and social support resulting from marriage,” he wrote, “increase wealth and improve psychological well-being for married spouses” (FF39). Those benefits accrue as well to the children of married spouses (FF41).
Domestic partnerships are not the same, Walker found. They are not recognized by the federal or many state governments (FF52) and in any event do not provide the same benefits or cultural status as marriage (FF53). But same-sex couples are “identical” in all relevant aspects to opposite-sex couples in their ability to form “successful marital unions” (FF48). And “marrying a person of the opposite sex,” Walker notes, “is an unrealistic option for gay and lesbian individuals” (FF51).
Significantly, Walker notes that California law encourages gays and lesbians to become parents through adoption, foster parenting, or assistive reproductive technology; about 18 percent of same-sex couples in the state are, in fact, raising children (FF 49). Children of same-sex parents benefit when their parents can marry (FF56), and children raised by same-sex parents are as likely to be “healthy, successful and well-adjusted” as those raised by opposite-sex parents (FF70). That finding, Walker adds, is accepted by psychologists as “beyond serious debate.”
What about the threat to “traditional marriage,” to use Prop. 8 supporters’ phrasing? “Permitting same-sex couples to marry,” Walker writes, “will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages” (FF54).
What then does Prop. 8 accomplish? The measure, Walker writes, “places the force of law behind stigmas against gays and lesbians” — bluntly, that they are “not as good as heterosexuals” and their relationships “do not deserve the full recognition of society” (FF58). It reserves for heterosexual couples “the most socially valued form of relationship” (FF60) while it “increases costs and decreases wealth” of same-sex couples (FF66), domestic partner status notwithstanding.
Set against the acknowledged “long history of discrimination” against gays and lesbians (FF75), the Prop. 8 campaign relied on false “stereotypes” about gays and lesbians (FF80) and unfounded fears that children exposed to the concept of same-sex marriage could become gay or lesbian as a result (FF79). And, once enacted, the measure “results in frequent reminders for gays and lesbians in committed long-term relationships that their relationships are not as highly valued as opposite-sex relationships” (FF68).
Against that backdrop, Walker proceeds to find that none of the proffered justifications for Prop. 8 — preserving tradition, moving slowly on social change, preferencing opposite-sex parenting, or protecting freedom of opponents of same-sex marriage — pass constitutional muster. The measure has no “rational basis,” he concludes, but serves merely to “enshrine” in law the purported superiority of heterosexual to same-sex couples.
The ruling is a testament not only to the litigation strategy of the plaintiffs’ strange bedfellow lawyers, liberal David Boies and conservative Theodore Olson, but also to the factual vacuum of the Prop. 8 campaign. Just one day later, Robert George, a Princeton professor and leading gay marriage opponent, was vowing that his side — out-litigated at trial — would be presenting new information for appeals courts to consider. For now, however, Walker’s fact-heavy decision makes the most compelling of cases to date for recognizing marriage rights for same-sex couples.
Friday, August 6, 2010
Monday, July 26, 2010
GOP Wants an Activist Kagan on Congress' Commerce Powers
Senate Judiciary Committee Republicans latched on to one more issue last week [July 20] to use against Supreme Court nominee Elena Kagan: the Constitution’s Commerce Clause. But the issue puts Republicans in the contradictory position of begging Kagan, if confirmed, to be a judicial activist and limit the power of Congress to exercise one of the most important of the enumerated powers written into the Constitution 200 years ago.
In the hearing and in written response to follow-up questions, Kagan correctly stated current Supreme Court case law regarding Congress’ power to regulate interstate and foreign commerce. “The Commerce Clause has been understood to give Congress wide authority in this area, that the general view has been that regulations affecting interstate commerce primarily are the prerogative of Congress and not of the courts, that courts ought to defer,” she told Arizona’s John Kyl on the last day of the hearing.
As she explained in her written response, decisions by the Rehnquist Court in the 1990s limit Congress’ power to use the Commerce Clause to regulate non-economic activity that has no substantial effect on interstate commerce. And she noted that another Rehnquist Court decision limits Congress’ power to pass laws enforcing the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
Those qualifications were not enough to satisfy Alabama’s Jeff Sessions, the committee’s ranking Republican. As he wrote in an op-ed in USA Today on the eve of the committee’s vote, “Ms. Kagan was unable to identify any constitutional limits on the government's power to control people's economic decisions.”
The question arises in the specific context of President Obama’s hard-fought victory in winning congressional approval of a landmark health insurance reform. No Republican voted for the final bill, and the ink was barely dry on the law when attorneys general in red states filed constitutional challenges.
The challengers are claiming that the health insurance mandate, the linchpin of the plan, exceeds Congress’ power under the Commerce Clause. They also claim that the law improperly interferes with states’ rights under the Tenth Amendment. Most but not all legal scholars give the challenges little chance of succeeding.
Historically, the Supreme Court indeed took a narrower view of Congress’ powers under the Commerce Clause. In the late 19th and early 20th centuries the court construed the word “commerce” narrowly to exclude manufacturing. On that basis, for example, the court struck down Congress’ first attempt to prohibit child labor. Later, during the New Deal, the court again relied on a restrictive definition of commerce to strike down President Franklin D. Roosevelt’s National Recovery Administration and his coal-industry rescue plan.
The court’s decisions were out of touch with economic reality and public opinion. Even before FDR’s ill-conceived “court-packing” plan, one of the justices, Owen J. Roberts, began to have doubts about the out-of-date doctrine. Then in May 1937 he provided the famous “switch in time that saved nine” to uphold the National Labor Relations Act under a broader definition of Congress’ power to regulate interstate commerce.
Ever since, the court has understood Congress’ Commerce Power over economic activities to be up to Congress, not the courts, to decide, just as Kagan said. Indeed, the court in 2005 upheld Congress’ power to go so far as to prohibit non-personal growing of marijuana for medicinal purposes because of the impact on the illegal market for marijuana. Granted three conservatives dissented, but significantly, Justice Antonin Scalia voted with the majority.
The Roberts Court this year gave no indication of taking a narrower view of Congress’ powers. In United States v. Comstock the court upheld Congress’ power to authorize civil commitment of dangerous mentally ill sexual predators after their federal prison terms had expired. The case turned on the meaning of the Necessary and Proper Clause, not the Commerce Clause, but the 7-2 decision found no reason to limit Congress’ power to deal in practical terms with a practical problem. Significantly, Chief Justice John G. Roberts Jr. joined with the majority.
The health care suit will take two years or more to reach the court. But, anticipating the Supreme Court showdown, Judiciary Committee Republicans tried to use Kagan’s confirmation hearing to establish grounds for requiring her to recuse herself from the eventual case. Kagan had already volunteered the standard assurance that she would recuse herself from any case in which she had participated or taken a significant role as solicitor general. So Republicans questioned her during the hearing and again in the post-hearing interrogatories about what role she had played in regard to the legislation. Kagan said she had given no formal opinion about its constitutionality and could recall attending only one meeting where the subject was mentioned.
Sessions and other Republicans cited Kagan’s view of Congress’ Commerce Power as one of the reasons for voting against her almost in the same breath as they warned that she would be a “judicial activist” if confirmed. Judicial activism, of course, is in the eyes of the beholder, but Republicans might rightly be expected not to be so blatantly hypocritical in throwing the charge. Regardless, Republicans have a losing hand. By this week’s end, the Senate will have confirmed Kagan, and she will be on the bench when the court convenes in October.
In the hearing and in written response to follow-up questions, Kagan correctly stated current Supreme Court case law regarding Congress’ power to regulate interstate and foreign commerce. “The Commerce Clause has been understood to give Congress wide authority in this area, that the general view has been that regulations affecting interstate commerce primarily are the prerogative of Congress and not of the courts, that courts ought to defer,” she told Arizona’s John Kyl on the last day of the hearing.
As she explained in her written response, decisions by the Rehnquist Court in the 1990s limit Congress’ power to use the Commerce Clause to regulate non-economic activity that has no substantial effect on interstate commerce. And she noted that another Rehnquist Court decision limits Congress’ power to pass laws enforcing the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
Those qualifications were not enough to satisfy Alabama’s Jeff Sessions, the committee’s ranking Republican. As he wrote in an op-ed in USA Today on the eve of the committee’s vote, “Ms. Kagan was unable to identify any constitutional limits on the government's power to control people's economic decisions.”
The question arises in the specific context of President Obama’s hard-fought victory in winning congressional approval of a landmark health insurance reform. No Republican voted for the final bill, and the ink was barely dry on the law when attorneys general in red states filed constitutional challenges.
The challengers are claiming that the health insurance mandate, the linchpin of the plan, exceeds Congress’ power under the Commerce Clause. They also claim that the law improperly interferes with states’ rights under the Tenth Amendment. Most but not all legal scholars give the challenges little chance of succeeding.
Historically, the Supreme Court indeed took a narrower view of Congress’ powers under the Commerce Clause. In the late 19th and early 20th centuries the court construed the word “commerce” narrowly to exclude manufacturing. On that basis, for example, the court struck down Congress’ first attempt to prohibit child labor. Later, during the New Deal, the court again relied on a restrictive definition of commerce to strike down President Franklin D. Roosevelt’s National Recovery Administration and his coal-industry rescue plan.
The court’s decisions were out of touch with economic reality and public opinion. Even before FDR’s ill-conceived “court-packing” plan, one of the justices, Owen J. Roberts, began to have doubts about the out-of-date doctrine. Then in May 1937 he provided the famous “switch in time that saved nine” to uphold the National Labor Relations Act under a broader definition of Congress’ power to regulate interstate commerce.
Ever since, the court has understood Congress’ Commerce Power over economic activities to be up to Congress, not the courts, to decide, just as Kagan said. Indeed, the court in 2005 upheld Congress’ power to go so far as to prohibit non-personal growing of marijuana for medicinal purposes because of the impact on the illegal market for marijuana. Granted three conservatives dissented, but significantly, Justice Antonin Scalia voted with the majority.
The Roberts Court this year gave no indication of taking a narrower view of Congress’ powers. In United States v. Comstock the court upheld Congress’ power to authorize civil commitment of dangerous mentally ill sexual predators after their federal prison terms had expired. The case turned on the meaning of the Necessary and Proper Clause, not the Commerce Clause, but the 7-2 decision found no reason to limit Congress’ power to deal in practical terms with a practical problem. Significantly, Chief Justice John G. Roberts Jr. joined with the majority.
The health care suit will take two years or more to reach the court. But, anticipating the Supreme Court showdown, Judiciary Committee Republicans tried to use Kagan’s confirmation hearing to establish grounds for requiring her to recuse herself from the eventual case. Kagan had already volunteered the standard assurance that she would recuse herself from any case in which she had participated or taken a significant role as solicitor general. So Republicans questioned her during the hearing and again in the post-hearing interrogatories about what role she had played in regard to the legislation. Kagan said she had given no formal opinion about its constitutionality and could recall attending only one meeting where the subject was mentioned.
Sessions and other Republicans cited Kagan’s view of Congress’ Commerce Power as one of the reasons for voting against her almost in the same breath as they warned that she would be a “judicial activist” if confirmed. Judicial activism, of course, is in the eyes of the beholder, but Republicans might rightly be expected not to be so blatantly hypocritical in throwing the charge. Regardless, Republicans have a losing hand. By this week’s end, the Senate will have confirmed Kagan, and she will be on the bench when the court convenes in October.
Saturday, July 10, 2010
On Gay Marriage, Judicial Modesty No Match for Flawed Pols
This is a column about Robert Byrd, Bill Clinton, Anthony Kennedy, and Elena Kagan. But it’s mostly about gay marriage and the legal challenge to the Defense of Marriage Act, an anti-gay law signed by Clinton as president and likely to come before Kagan as the next Supreme Court justice.
In his eulogy for Byrd, Clinton excused the longtime West Virginia senator’s membership in the Ku Klux Klan in the 1930s as a politically motivated campaign decision. There are no perfect people, Clinton said, certainly no perfect politicians.
Clinton spoke from personal experience with the ethical lapses that can be induced by political ambition. With the 1996 presidential election looming, Clinton twice signed into law politically treacherous measures sent to him by the Republican-controlled Congress.
One of the bills, the Antiterrorism and Effective Death Penalty Act, cut back as far as Congress could on the rights of death row inmates and other prisoners to use federal habeas corpus to challenge the constitutionality of state court convictions or sentences. The other, the Defense of Marriage Act, did everything Congress could to stop what was then only the potential recognition of marriage rights for same-sex couples.
Clinton had to know of the legal and policy doubts attending both measures. But he must also have feared that if he vetoed either bill, a second term in the White House could fall victim to Republican attack ads depicting him as against capital punishment or against “traditional marriage.”
Coincidentally, only a few months before Clinton signed DOMA, the Supreme Court had its own encounter with an anti-gay law: a Colorado initiative passed in 1992 that barred either the state or local governments from passing laws to protect gays and lesbians from discrimination. The court ruled the measure unconstitutional in a 6-3 decision written by the Republican-appointed justice, Anthony Kennedy.
The law had no “rational relationship to legitimate state interests,” Kennedy wrote in Romer v. Evans. The only reason for its enactment was “animus” toward gays. “It is not within our constitutional tradition to enact laws of this sort," he said.
Seven years later, Kennedy wrote a second Supreme Court decision upholding gay rights. In Lawrence v. Texas, the court invalidated anti-sodomy laws on the ground that, just like the Colorado initiative, they had no rational explanation other than “moral disapproval” of homosexuality.
A few months later, the Supreme Judicial Court of Massachusetts cited Lawrence in making the Bay State the first in the nation to recognize marital rights for gay men and lesbians. Since then, six other states and the District of Columbia have followed suit either by judicial decision or legislative enactment. But in two of those states, California and Maine, voters approved ballot measures to take away the newly recognized marriage rights for gays.
With gay marriage now a reality, DOMA’s restrictions have started to bite. One part of the law provides that no state is required to recognize gay marriages entered into in another state. The other part, section 3, defines marriage for purposes of federal law as “one man and one woman” and thus denies same-sex couples any marriage-based benefits under federal law.
There are more than 1,100 of them, ranging from the preferential tax treatment for joint filers to spousal health, retirement, and survivor benefits for federal employees. In passing the law back in 1996, members of Congress said gay marriage would be bad for children and bad for procreation itself. But Rep. Henry Hyde, R-Ill., was perhaps the most honest of the lawmakers when he said simply that the law embodied the prevailing “moral disapproval of homosexuality.”
The Massachusetts-based Gay and Lesbian Advocates and Defenders (GLAD) assembled a lawsuit to challenge DOMA filed on behalf of legally married gay men and lesbians who were suffering concrete, financial harms because of the law: higher taxes or reduced health, retirement, or survivor benefits. In a 39-page decision this week [July 8], U.S. District Court Judge Joseph Tauro ruled that the law “violates equal protection principles.”
Tauro, appointed long ago by a Republican president, Richard M. Nixon, cited Romer and Lawrence as his legal authority for his decision to strike down a law that he said had no believable justification other than to penalize legally married same-sex couples. “Irrational prejudice,” the judge wrote in Gill v. Office of Personnel Management, “plainly never constitutes a legitimate state interest.”
Experts disagree about whether Tauro’s ruling, and a like decision in a companion case brought by the state of Massachusetts itself, will stand up on appeal. But it is certainly headed toward the Supreme Court. Kagan, a gay rights supporter in a previous life as Harvard Law School dean, is all but certain to win Senate confirmation within the next month to join the court as President Obama’s second appointee.
In her confirmation hearing, Kagan stressed the limited role that courts play in the U.S. constitutional system and pledged to be a “modest” justice. But she also said that courts have an essential role to play in fulfilling the goal enshrined in the Constitution’s preamble “to secure the blessings of liberty to ourselves and our posterity.” In a world of imperfect politicians, judicial modesty may be inadequate to the task.
In his eulogy for Byrd, Clinton excused the longtime West Virginia senator’s membership in the Ku Klux Klan in the 1930s as a politically motivated campaign decision. There are no perfect people, Clinton said, certainly no perfect politicians.
Clinton spoke from personal experience with the ethical lapses that can be induced by political ambition. With the 1996 presidential election looming, Clinton twice signed into law politically treacherous measures sent to him by the Republican-controlled Congress.
One of the bills, the Antiterrorism and Effective Death Penalty Act, cut back as far as Congress could on the rights of death row inmates and other prisoners to use federal habeas corpus to challenge the constitutionality of state court convictions or sentences. The other, the Defense of Marriage Act, did everything Congress could to stop what was then only the potential recognition of marriage rights for same-sex couples.
Clinton had to know of the legal and policy doubts attending both measures. But he must also have feared that if he vetoed either bill, a second term in the White House could fall victim to Republican attack ads depicting him as against capital punishment or against “traditional marriage.”
Coincidentally, only a few months before Clinton signed DOMA, the Supreme Court had its own encounter with an anti-gay law: a Colorado initiative passed in 1992 that barred either the state or local governments from passing laws to protect gays and lesbians from discrimination. The court ruled the measure unconstitutional in a 6-3 decision written by the Republican-appointed justice, Anthony Kennedy.
The law had no “rational relationship to legitimate state interests,” Kennedy wrote in Romer v. Evans. The only reason for its enactment was “animus” toward gays. “It is not within our constitutional tradition to enact laws of this sort," he said.
Seven years later, Kennedy wrote a second Supreme Court decision upholding gay rights. In Lawrence v. Texas, the court invalidated anti-sodomy laws on the ground that, just like the Colorado initiative, they had no rational explanation other than “moral disapproval” of homosexuality.
A few months later, the Supreme Judicial Court of Massachusetts cited Lawrence in making the Bay State the first in the nation to recognize marital rights for gay men and lesbians. Since then, six other states and the District of Columbia have followed suit either by judicial decision or legislative enactment. But in two of those states, California and Maine, voters approved ballot measures to take away the newly recognized marriage rights for gays.
With gay marriage now a reality, DOMA’s restrictions have started to bite. One part of the law provides that no state is required to recognize gay marriages entered into in another state. The other part, section 3, defines marriage for purposes of federal law as “one man and one woman” and thus denies same-sex couples any marriage-based benefits under federal law.
There are more than 1,100 of them, ranging from the preferential tax treatment for joint filers to spousal health, retirement, and survivor benefits for federal employees. In passing the law back in 1996, members of Congress said gay marriage would be bad for children and bad for procreation itself. But Rep. Henry Hyde, R-Ill., was perhaps the most honest of the lawmakers when he said simply that the law embodied the prevailing “moral disapproval of homosexuality.”
The Massachusetts-based Gay and Lesbian Advocates and Defenders (GLAD) assembled a lawsuit to challenge DOMA filed on behalf of legally married gay men and lesbians who were suffering concrete, financial harms because of the law: higher taxes or reduced health, retirement, or survivor benefits. In a 39-page decision this week [July 8], U.S. District Court Judge Joseph Tauro ruled that the law “violates equal protection principles.”
Tauro, appointed long ago by a Republican president, Richard M. Nixon, cited Romer and Lawrence as his legal authority for his decision to strike down a law that he said had no believable justification other than to penalize legally married same-sex couples. “Irrational prejudice,” the judge wrote in Gill v. Office of Personnel Management, “plainly never constitutes a legitimate state interest.”
Experts disagree about whether Tauro’s ruling, and a like decision in a companion case brought by the state of Massachusetts itself, will stand up on appeal. But it is certainly headed toward the Supreme Court. Kagan, a gay rights supporter in a previous life as Harvard Law School dean, is all but certain to win Senate confirmation within the next month to join the court as President Obama’s second appointee.
In her confirmation hearing, Kagan stressed the limited role that courts play in the U.S. constitutional system and pledged to be a “modest” justice. But she also said that courts have an essential role to play in fulfilling the goal enshrined in the Constitution’s preamble “to secure the blessings of liberty to ourselves and our posterity.” In a world of imperfect politicians, judicial modesty may be inadequate to the task.
Monday, June 28, 2010
Gun Rights Ruling Ends Court's Term on Dramatic Note
The Supreme Court ended its 2009-2010 term in dramatic fashion on Monday [June 28] with sharply divided, 5-4 decisions extending Second Amendment protection to state and local gun control laws and striking down a part, but only a small part, of a corporate reform law passed in the wake of the Enron scandal.
In two other rulings, the court rejected a Christian group’s effort to validate exclusionary membership policies at a California law school and stopped just short of a ruling that could have barred patents altogether for so-called business methods.
The 75-minute-long session marked Justice John Paul Stevens’ final day on the bench after 34-and-a-half years on the high court. Barely an hour later, the Senate Judiciary Committee was to begin confirmation hearings on President Obama’s nominee to succeed Stevens: Elena Kagan, the current U.S. solicitor general and former dean of Harvard Law School.
At age 90, Stevens is the second-oldest person ever to serve on the Supreme Court. If confirmed — as universally expected — Kagan will join the court at age 50 as the youngest of the current justices.
The court’s conservative majority, led by Chief Justice John G. Roberts Jr., flexed its muscles in three of the four 5-4 decisions on Monday. Moderate conservative Justice Anthony M. Kennedy joined the bloc of four liberal justices to produce a majority in the law school case.
Three of the four cases decided on Monday featured justices in dissent reading portions of their opinions from the bench — what amounts to high drama for the Supreme Court. The session opened on a somber note with Roberts noting the death on Sunday of Martin Ginsburg, husband of Justice Ruth Bader Ginsburg and a noted tax lawyer and law professor. It ended on a nostalgic note with Roberts reading a farewell letter to Stevens signed by eight of the justices and retired justices Sandra Day O’Connor and David H. Souter.
Roberts praised Stevens for his “vigor and integrity,” “unaffected decency,” and combination of “genuine collegiality with independent judgment.” Stevens responded, in what Roberts introduced as a “rebuttal,” mockingly apologizing for having “overstayed my welcome.” His voice broke at one point in the reading.
The gun ruling, McDonald v. Chicago, invalidated a ordinance that virtually banned any private possession of handguns in the nation’s third-largest city. For the majority, Justice Samuel A. Alito Jr. relied heavily on the 2008 decision in District of Columbia v. Heller, striking down a handgun ban in the nation’s capital. Because Washington is a federal jurisdiction, the ruling left open the question whether the newfound Second Amendment right to possession of a handgun in the home for self-defense also applied to state and local governments.
Emphatically, the court said yes. “The Second Amendment is fully applicable to the states,” Alito wrote in the opening of a 45-page opinion. In a 35-page dissent, Justice Stephen G. Breyer said the ruling intrudes on the states’ “quintessential exercise of police power” and invites federal court challenges to every state and local gun regulation.
Roberts spoke for the conservative majority in the final decision of the term, striking down a portion of the Sarbanes-Oxley law enacted in 2002. The act created a new agency, the Public Company Accounting Oversight Board, to regulate accounting firms _ which had been blamed for some of the corporate misdeeds implicated in the Enron and other business scandals.
In Free Enterprise Fund v. Public Company Accounting Oversight Board, the court held the structure of the bond was unconstitutional because of separation of power concerns. The law provided that the board members were to be appointed by the Securities and Exchange Commission (SEC) Roberts said that the political insulation of the SEC members combined with the political insulation of the PCAOB members — removable only for cause — infringed on the president’s executive powers. To remedy the problem, the court imposed only a modest fix — making the board's member subject to removal by the SEC for any reason — instead of a broader ruling that might have required Congress to rewrite the law.
Dissenting again, Breyer warned the ruling cast doubt on tenure-protection provisions for thousands of federal officials, including administrative law judges and what he said was half of the military’s officer corps.
The patent case, Bilski v. Kappos, had been closely watched by the patent community as a test of whether business methods were patentable. The ruling invalidated a patent granted allowed for a method of hedging commodities investments. In his majority opinion, Kennedy said the method was only “an abstract idea” and not patentable.
In an opinion technically concurring in the judgment but amounting to a dissent, Stevens said the court should have completely barred patents for business methods. He criticized the “timid disposition of the case.” The court’s three other liberal justices joined his opinion.
In the fourth case, Christian Legal Society v. Martinez, the court upheld what it called an anti-discriminaton policy for student organizations at Hastings Law School in San Francisco in the face of the Christian group's effort to exclude gays or "nonbelievers" from leadership positions on religious grounds. Ginsburg wrote for a five-justice majority that included Kennedy in upholding the school’s "all-comers" policy; Alito led the four dissenters.
The court’s term will be best remembered for the dramatic Citizens United decision striking down part of the McCain-Feingold campaign-finance reform law and giving corporations and unions the right to spend unlimited sums from their own treasuries on federal campaigns. In another significant conservative victory, the court upheld on a 6-3 vote a broad interpretation of an anti-terrorism law prohibiting any “advice or assistance” or “training” to designated foreign terrorist groups.
Liberals counted some significant victories, however, including a 5-4 decision prohibiting life without parole sentences to juvenile offenders (Graham v. Florida). Free-speech advocates also counted a victory in an 8-1 decision striking down a federal law prohibiting depictions of animal cruelty (United States v. Stevens).
In criminal law, the court issued three decisions narrowing Miranda protections but two rulings that somewhat liberalized rules on federal habeas corpus challenges to state criminal convictions and sentences. And in a significant business-related case, the court barred securities fraud suits in U.S. courts for stocks sold on foreign exchanges.
In two other rulings, the court rejected a Christian group’s effort to validate exclusionary membership policies at a California law school and stopped just short of a ruling that could have barred patents altogether for so-called business methods.
The 75-minute-long session marked Justice John Paul Stevens’ final day on the bench after 34-and-a-half years on the high court. Barely an hour later, the Senate Judiciary Committee was to begin confirmation hearings on President Obama’s nominee to succeed Stevens: Elena Kagan, the current U.S. solicitor general and former dean of Harvard Law School.
At age 90, Stevens is the second-oldest person ever to serve on the Supreme Court. If confirmed — as universally expected — Kagan will join the court at age 50 as the youngest of the current justices.
The court’s conservative majority, led by Chief Justice John G. Roberts Jr., flexed its muscles in three of the four 5-4 decisions on Monday. Moderate conservative Justice Anthony M. Kennedy joined the bloc of four liberal justices to produce a majority in the law school case.
Three of the four cases decided on Monday featured justices in dissent reading portions of their opinions from the bench — what amounts to high drama for the Supreme Court. The session opened on a somber note with Roberts noting the death on Sunday of Martin Ginsburg, husband of Justice Ruth Bader Ginsburg and a noted tax lawyer and law professor. It ended on a nostalgic note with Roberts reading a farewell letter to Stevens signed by eight of the justices and retired justices Sandra Day O’Connor and David H. Souter.
Roberts praised Stevens for his “vigor and integrity,” “unaffected decency,” and combination of “genuine collegiality with independent judgment.” Stevens responded, in what Roberts introduced as a “rebuttal,” mockingly apologizing for having “overstayed my welcome.” His voice broke at one point in the reading.
The gun ruling, McDonald v. Chicago, invalidated a ordinance that virtually banned any private possession of handguns in the nation’s third-largest city. For the majority, Justice Samuel A. Alito Jr. relied heavily on the 2008 decision in District of Columbia v. Heller, striking down a handgun ban in the nation’s capital. Because Washington is a federal jurisdiction, the ruling left open the question whether the newfound Second Amendment right to possession of a handgun in the home for self-defense also applied to state and local governments.
Emphatically, the court said yes. “The Second Amendment is fully applicable to the states,” Alito wrote in the opening of a 45-page opinion. In a 35-page dissent, Justice Stephen G. Breyer said the ruling intrudes on the states’ “quintessential exercise of police power” and invites federal court challenges to every state and local gun regulation.
Roberts spoke for the conservative majority in the final decision of the term, striking down a portion of the Sarbanes-Oxley law enacted in 2002. The act created a new agency, the Public Company Accounting Oversight Board, to regulate accounting firms _ which had been blamed for some of the corporate misdeeds implicated in the Enron and other business scandals.
In Free Enterprise Fund v. Public Company Accounting Oversight Board, the court held the structure of the bond was unconstitutional because of separation of power concerns. The law provided that the board members were to be appointed by the Securities and Exchange Commission (SEC) Roberts said that the political insulation of the SEC members combined with the political insulation of the PCAOB members — removable only for cause — infringed on the president’s executive powers. To remedy the problem, the court imposed only a modest fix — making the board's member subject to removal by the SEC for any reason — instead of a broader ruling that might have required Congress to rewrite the law.
Dissenting again, Breyer warned the ruling cast doubt on tenure-protection provisions for thousands of federal officials, including administrative law judges and what he said was half of the military’s officer corps.
The patent case, Bilski v. Kappos, had been closely watched by the patent community as a test of whether business methods were patentable. The ruling invalidated a patent granted allowed for a method of hedging commodities investments. In his majority opinion, Kennedy said the method was only “an abstract idea” and not patentable.
In an opinion technically concurring in the judgment but amounting to a dissent, Stevens said the court should have completely barred patents for business methods. He criticized the “timid disposition of the case.” The court’s three other liberal justices joined his opinion.
In the fourth case, Christian Legal Society v. Martinez, the court upheld what it called an anti-discriminaton policy for student organizations at Hastings Law School in San Francisco in the face of the Christian group's effort to exclude gays or "nonbelievers" from leadership positions on religious grounds. Ginsburg wrote for a five-justice majority that included Kennedy in upholding the school’s "all-comers" policy; Alito led the four dissenters.
The court’s term will be best remembered for the dramatic Citizens United decision striking down part of the McCain-Feingold campaign-finance reform law and giving corporations and unions the right to spend unlimited sums from their own treasuries on federal campaigns. In another significant conservative victory, the court upheld on a 6-3 vote a broad interpretation of an anti-terrorism law prohibiting any “advice or assistance” or “training” to designated foreign terrorist groups.
Liberals counted some significant victories, however, including a 5-4 decision prohibiting life without parole sentences to juvenile offenders (Graham v. Florida). Free-speech advocates also counted a victory in an 8-1 decision striking down a federal law prohibiting depictions of animal cruelty (United States v. Stevens).
In criminal law, the court issued three decisions narrowing Miranda protections but two rulings that somewhat liberalized rules on federal habeas corpus challenges to state criminal convictions and sentences. And in a significant business-related case, the court barred securities fraud suits in U.S. courts for stocks sold on foreign exchanges.
Wednesday, June 23, 2010
Trusting the Government on Anti-Terrorism Law?
Ralph Fertig has been advocating the cause of Kurdish national liberation for nearly a quarter century. But the longtime civil and human rights activist professes not to know much about the Kurdistan Workers’ Party (PKK), which the United States government lists as a foreign terrorist organization.
“I don’t even know who is a member of the PKK,” Fertig told a radio interviewer in Februay. “I work with Kurds,” Fertig explained. “I don’t ask whether they’re members of the PKK.”
Fertig's comments came on the eve of Supreme Court arguments in his constitutional challenge to the federal law making it a crime to provide "material support," including advice or training, to officially designated foreign terrorist groups. For more than decade, Fertig has been helping the Kurds under the threat of a possible criminal prosecution under that law.
The government has not prosecuted Fertig. But in rejecting Fertig's challenge this week, the Supreme Court has given a solid green light to use of this broadly written anti-terrorism law not only against “the worst of the worst” but also in some sense against “the best of the best” — people like Fertig and groups like his Humanitarian Law Project. Fertig and others say they want to try to guide foreign organizations that use terrorism to advance their goals to tun instead to lawful advocacy and peaceful dispute resolution.
Both the Bush and Obama administrations have made the “material support” law the go-to legal weapon against suspected members or supporters of al Qaeda. The court’s 6-3 decision in Holder v. Humanitarian Law Project (June 21) allows the government as well to prosecute human rights-minded Americans for activities that would seem to be both laudable and constitutionally protected.
For the majority, Chief Justice John G. Roberts Jr. accepted the government’s different view that any “training” or “advice or assistance” to a foreign terrorist organization — even for lawful ends — is “highly likely” to inure ultimately to the benefit of its terrorist activities. Congress and the executive branch were “uniquely positioned” to make that judgment, Roberts wrote. Dissenting justices argued that the court had a more important role: to protect the First Amendment.
Up until this week, the government had fared badly in playing the anti-terrorism card at the Supreme Court. In four post-9/11 cases decided between 2004 and 2008, the justices rejected the Bush administration’s claims of broad authority to detain suspected enemy combatants with limited review by the courts.
The government fared badly as well in the lower courts in defending the broad reading of the material support law. As originally enacted in 1996, the law was aimed at prohibiting the most concrete forms of aid to terrorist groups: direct financial assistance, lodging, equipment, personnel, or training. Congress substantially expanded the provision late in October 2001 — barely six weeks after the 9/11 attacks — to prohibit “expert advice or assistance” as well. That was one of the many provisions of the USA Patriot Act that got only the most cursory consideration from Congress in the post-9/11 panic.
The challenge to the law was advancing even as Congress was expanding it. A few weeks before passage of the USA Patriot Act, U.S. District Court Judge Audrey Collins issued a final ruling reaffirming her earlier decision that the law’s prohibitions against providing personnel or training were “impermissibly vague.” Later, in 2003, Fertig’s group filed a second suit challenging the “expert advice or assistance” provision. The proceedings clearly indicated trouble for the government in defending the law as written, prompting Congress late in 2004 to narrow the definition of “training” and “expert advice or assistance.” Lawmakers also added a requirement — as the Ninth Circuit appeals court had ruled necessary — that prosecutors show that a defendant had knowingly provided aid to the terrorist group.
In his opinion, Roberts cited the legislative refinements as evidence that Congress had been careful not to cross the First Amendment line. In dissent, Justice Stephen G. Breyer proposed going one step further and requiring the government to prove that a defendant knew that any training, advice, or assistance was likely to further the organization’s terrorist actions, not its lawful activities. Roberts said Congress "plainly" decided not to require that kind of specific-intent proof.
Hawkish national security experts are hailing the ruling. “Terrorist organizations must be treated as pariahs and suffocated, not cultivated,” former federal prosecutor National Review legal editor Andrew McCarthy writes on a New York Times blog. From the opposite perspective, Stephen Vladeck, a law professor at American University in Washington, warns the decision will have “a profound chilling effect on the efforts of peace-building organizations and other NGOs that seek to promote non-violent democracy building.”
Much depends on whether the Justice Department makes judicious use of the law now that the high court has removed the cloud over it. In oral argument back in February, Solicitor General Elena Kagan expressly declined to speculate whether activists such as Fertig had real reason to fear prosecution under the law.
Writing in a different case earlier this year, Roberts was unwilling to trust the government’s good faith alone on sensitive First Amendment questions. “We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly,” Roberts wrote in striking down a broadly written animal cruelty statute in United States v. Stevens. In the new ruling, however, the Roberts Court is willing to put the First Amendment at some risk, trusting assurance from a government that since 9/11 has proved none too trustworthy on national security matters.
“I don’t even know who is a member of the PKK,” Fertig told a radio interviewer in Februay. “I work with Kurds,” Fertig explained. “I don’t ask whether they’re members of the PKK.”
Fertig's comments came on the eve of Supreme Court arguments in his constitutional challenge to the federal law making it a crime to provide "material support," including advice or training, to officially designated foreign terrorist groups. For more than decade, Fertig has been helping the Kurds under the threat of a possible criminal prosecution under that law.
The government has not prosecuted Fertig. But in rejecting Fertig's challenge this week, the Supreme Court has given a solid green light to use of this broadly written anti-terrorism law not only against “the worst of the worst” but also in some sense against “the best of the best” — people like Fertig and groups like his Humanitarian Law Project. Fertig and others say they want to try to guide foreign organizations that use terrorism to advance their goals to tun instead to lawful advocacy and peaceful dispute resolution.
Both the Bush and Obama administrations have made the “material support” law the go-to legal weapon against suspected members or supporters of al Qaeda. The court’s 6-3 decision in Holder v. Humanitarian Law Project (June 21) allows the government as well to prosecute human rights-minded Americans for activities that would seem to be both laudable and constitutionally protected.
For the majority, Chief Justice John G. Roberts Jr. accepted the government’s different view that any “training” or “advice or assistance” to a foreign terrorist organization — even for lawful ends — is “highly likely” to inure ultimately to the benefit of its terrorist activities. Congress and the executive branch were “uniquely positioned” to make that judgment, Roberts wrote. Dissenting justices argued that the court had a more important role: to protect the First Amendment.
Up until this week, the government had fared badly in playing the anti-terrorism card at the Supreme Court. In four post-9/11 cases decided between 2004 and 2008, the justices rejected the Bush administration’s claims of broad authority to detain suspected enemy combatants with limited review by the courts.
The government fared badly as well in the lower courts in defending the broad reading of the material support law. As originally enacted in 1996, the law was aimed at prohibiting the most concrete forms of aid to terrorist groups: direct financial assistance, lodging, equipment, personnel, or training. Congress substantially expanded the provision late in October 2001 — barely six weeks after the 9/11 attacks — to prohibit “expert advice or assistance” as well. That was one of the many provisions of the USA Patriot Act that got only the most cursory consideration from Congress in the post-9/11 panic.
The challenge to the law was advancing even as Congress was expanding it. A few weeks before passage of the USA Patriot Act, U.S. District Court Judge Audrey Collins issued a final ruling reaffirming her earlier decision that the law’s prohibitions against providing personnel or training were “impermissibly vague.” Later, in 2003, Fertig’s group filed a second suit challenging the “expert advice or assistance” provision. The proceedings clearly indicated trouble for the government in defending the law as written, prompting Congress late in 2004 to narrow the definition of “training” and “expert advice or assistance.” Lawmakers also added a requirement — as the Ninth Circuit appeals court had ruled necessary — that prosecutors show that a defendant had knowingly provided aid to the terrorist group.
In his opinion, Roberts cited the legislative refinements as evidence that Congress had been careful not to cross the First Amendment line. In dissent, Justice Stephen G. Breyer proposed going one step further and requiring the government to prove that a defendant knew that any training, advice, or assistance was likely to further the organization’s terrorist actions, not its lawful activities. Roberts said Congress "plainly" decided not to require that kind of specific-intent proof.
Hawkish national security experts are hailing the ruling. “Terrorist organizations must be treated as pariahs and suffocated, not cultivated,” former federal prosecutor National Review legal editor Andrew McCarthy writes on a New York Times blog. From the opposite perspective, Stephen Vladeck, a law professor at American University in Washington, warns the decision will have “a profound chilling effect on the efforts of peace-building organizations and other NGOs that seek to promote non-violent democracy building.”
Much depends on whether the Justice Department makes judicious use of the law now that the high court has removed the cloud over it. In oral argument back in February, Solicitor General Elena Kagan expressly declined to speculate whether activists such as Fertig had real reason to fear prosecution under the law.
Writing in a different case earlier this year, Roberts was unwilling to trust the government’s good faith alone on sensitive First Amendment questions. “We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly,” Roberts wrote in striking down a broadly written animal cruelty statute in United States v. Stevens. In the new ruling, however, the Roberts Court is willing to put the First Amendment at some risk, trusting assurance from a government that since 9/11 has proved none too trustworthy on national security matters.
Friday, June 18, 2010
Roberts Court's Activist Impulse in Beachfront Case
Judged by the result, the decision looks like a model of judicial restraint. The Supreme Court unanimously rejected a claim by landowners on Florida’s northern Gulf Coast that they had suffered an unconstitutional taking of property after beach restoration by local governments turned their oceanfront homes into ocean-view lots separated from the water by 75 feet of new sand.
Looked at more closely, however, the court’s June 17 decision in Stop the Beach Renourishment v. Florida Department of Environmental Protection discloses an activist impulse by the Roberts Court’s committed conservatives. In a plurality opinion, four justices fell one vote short of a majority to give federal courts new power to superintend state court rulings on land- use law. The ruling they sought could have led to a vast increase in property rights litigation, giving property owners new leverage to block government-backed development and improvements aimed at benefiting the broad public.
The decision came as liberal groups are stepping up their accusations that under Chief Justice John G. Roberts Jr., the court has been guilty of pro-business judicial activism. “The Roberts Court consistently pursues a political agenda that favors powerful corporate interests,” according to a report by the Alliance for Justice, “and recent Supreme Court decisions show certain Justices’ striking willingness to engage in judicial activism to fulfill their ideological goals.”
Exhibit No. 1 in the group’s indictment is the 5-4 Citizens United decision in January, which freed corporations (and unions) to spend unlimited sums from their own treasuries on political campaigns. But the report pointed to a dozen other cases in which the court purportedly “overreached” by deciding questions unnecessarily, crafting new legal standards “out of thin air,” or overriding factual determinations by lower courts.
As another example, the group cited the 2009 decision, Gross v. FBL Services, that went beyond the narrow question presented to shift the burden of proof from employers to plaintiffs in one type of federal age- discrimination case. As the report notes, the logic of the decision could also apply to the broad range of job- discrimination suits (race, sex, and so forth) brought under the Civil Rights Act of 1964.
The conservative Heritage Foundation rushed out with a report depicting the liberals’ accusation as “mythology.” The attack, senior fellows Robert Alt and Hans von Spakovsky argue in a legal memorandum, is an effort to distract court watchers from the true record of judicial activism by liberal judges.
The court’s handling of the Florida property rights case gives the warring ideological groups one more decision to debate. The case stemmed from the plan by the Gulf Coast town of Destin and its county government in 2003 to restore about seven miles of hurricane-eroded beach. Some beachfront property owners objected. Why? Because under well-established law, the restored beach would be public land, not private property.
Having paid a pretty penny for an oceanfront lot with no beachgoing public between them and the water, the owners concluded that the government was taking their property without compensation in violation of the Fifth Amendment’s Takings Clause. They also claimed the benefit of Florida’s 1961 Beach and Shore Preservation Act, which generally provides that beachfront owners, post-restoration, are still entitled to almost all of their pre-existing property rights.
The Florida Supreme Court rejected the owners’ claim, saying the owners had lost no protected property right. The owners took the case to the U.S. Supreme Court. There, they argued the novel theory that the state court’s decision on this somewhat close legal question amounted to a taking because it purportedly changed existing state law.
The Supreme Court agreed to review the decision. During arguments in December, justices across the ideological spectrum appeared satisfied that the Florida Supreme Court had a sound basis for its decision. And that is what they said in the eventual ruling. All eight justices (Justice John Paul Stevens, a Florida land owner, recused himself) agreed that the state court was not guilty of taking the owners’ property.
Before reaching that conclusion, however, Justice Antonin Scalia led a four-justice bloc that also included Roberts, Clarence Thomas, and Samuel A. Alito Jr. in saying that, yes, a court ruling changing an “established” property right could amount to a taking just as much as action by a legislative or executive body. The four other justices — Anthony M. Kennedy and Sonia Sotomayor in one opinion, Stephen G. Breyer and Ruth Bader Ginsburg in another — said it was unnecessary to decide the issue. In his opinion, Kennedy warned that the plurality opinion could transform virtually any state court property rights dispute into a “takings” claim. Any losing party, he suggested, could argue that the state court had “changed” established law to its detriment.
In fact, within hours Ilya Shapiro of the libertarian Cato Institute Shapiro was hailing the four-vote opinion. “State courts are now on notice that they violate long-hailed property rights at their peril,” Shapiro wrote. Four votes, of course, do not make a majority on the Supreme Court. A full court almost certainly would have rejected Scalia’s position since Stevens has not embraced property rights claims in past cases. So Scalia’s opinion adopting the idea of “judicial takings” represents an extended dictum of no real legal effect, unnecessary to the decision but an activist gift to property rights advocates in future cases.
Looked at more closely, however, the court’s June 17 decision in Stop the Beach Renourishment v. Florida Department of Environmental Protection discloses an activist impulse by the Roberts Court’s committed conservatives. In a plurality opinion, four justices fell one vote short of a majority to give federal courts new power to superintend state court rulings on land- use law. The ruling they sought could have led to a vast increase in property rights litigation, giving property owners new leverage to block government-backed development and improvements aimed at benefiting the broad public.
The decision came as liberal groups are stepping up their accusations that under Chief Justice John G. Roberts Jr., the court has been guilty of pro-business judicial activism. “The Roberts Court consistently pursues a political agenda that favors powerful corporate interests,” according to a report by the Alliance for Justice, “and recent Supreme Court decisions show certain Justices’ striking willingness to engage in judicial activism to fulfill their ideological goals.”
Exhibit No. 1 in the group’s indictment is the 5-4 Citizens United decision in January, which freed corporations (and unions) to spend unlimited sums from their own treasuries on political campaigns. But the report pointed to a dozen other cases in which the court purportedly “overreached” by deciding questions unnecessarily, crafting new legal standards “out of thin air,” or overriding factual determinations by lower courts.
As another example, the group cited the 2009 decision, Gross v. FBL Services, that went beyond the narrow question presented to shift the burden of proof from employers to plaintiffs in one type of federal age- discrimination case. As the report notes, the logic of the decision could also apply to the broad range of job- discrimination suits (race, sex, and so forth) brought under the Civil Rights Act of 1964.
The conservative Heritage Foundation rushed out with a report depicting the liberals’ accusation as “mythology.” The attack, senior fellows Robert Alt and Hans von Spakovsky argue in a legal memorandum, is an effort to distract court watchers from the true record of judicial activism by liberal judges.
The court’s handling of the Florida property rights case gives the warring ideological groups one more decision to debate. The case stemmed from the plan by the Gulf Coast town of Destin and its county government in 2003 to restore about seven miles of hurricane-eroded beach. Some beachfront property owners objected. Why? Because under well-established law, the restored beach would be public land, not private property.
Having paid a pretty penny for an oceanfront lot with no beachgoing public between them and the water, the owners concluded that the government was taking their property without compensation in violation of the Fifth Amendment’s Takings Clause. They also claimed the benefit of Florida’s 1961 Beach and Shore Preservation Act, which generally provides that beachfront owners, post-restoration, are still entitled to almost all of their pre-existing property rights.
The Florida Supreme Court rejected the owners’ claim, saying the owners had lost no protected property right. The owners took the case to the U.S. Supreme Court. There, they argued the novel theory that the state court’s decision on this somewhat close legal question amounted to a taking because it purportedly changed existing state law.
The Supreme Court agreed to review the decision. During arguments in December, justices across the ideological spectrum appeared satisfied that the Florida Supreme Court had a sound basis for its decision. And that is what they said in the eventual ruling. All eight justices (Justice John Paul Stevens, a Florida land owner, recused himself) agreed that the state court was not guilty of taking the owners’ property.
Before reaching that conclusion, however, Justice Antonin Scalia led a four-justice bloc that also included Roberts, Clarence Thomas, and Samuel A. Alito Jr. in saying that, yes, a court ruling changing an “established” property right could amount to a taking just as much as action by a legislative or executive body. The four other justices — Anthony M. Kennedy and Sonia Sotomayor in one opinion, Stephen G. Breyer and Ruth Bader Ginsburg in another — said it was unnecessary to decide the issue. In his opinion, Kennedy warned that the plurality opinion could transform virtually any state court property rights dispute into a “takings” claim. Any losing party, he suggested, could argue that the state court had “changed” established law to its detriment.
In fact, within hours Ilya Shapiro of the libertarian Cato Institute Shapiro was hailing the four-vote opinion. “State courts are now on notice that they violate long-hailed property rights at their peril,” Shapiro wrote. Four votes, of course, do not make a majority on the Supreme Court. A full court almost certainly would have rejected Scalia’s position since Stevens has not embraced property rights claims in past cases. So Scalia’s opinion adopting the idea of “judicial takings” represents an extended dictum of no real legal effect, unnecessary to the decision but an activist gift to property rights advocates in future cases.
Wednesday, June 9, 2010
When Was It Time to Throw the Book at BP?
Terrance Graham was a two-time juvenile offender, barely past his 19th birthday in 2006, when Judge Lance Day in Jacksonville, Fla., decided to send him to prison for the rest of his life “to protect the community.” Imagine what harms might have been prevented if the repeat corporate offender BP had come up before a likeminded judge sometime in the past.
The cause of the April 20 blowout of BP’s Deepwater Horizon well in the Gulf of Mexico remains to be determined. So, too, the full extent of the economic, environmental, legal, and social costs of what is already the worst oil spill in U.S. history, a spill unlikely to be contained for at least two months, if then.
Seven weeks later, however, this much is known: BP has a long history of safety and environmental violations that can be blamed for the deaths of 15 refinery workers in Texas, the spoilage of Alaska’s North Shore, and lesser injuries to workers and environments at other sites.
The company has twice pleaded guilty to federal criminal charges. It was put on probation after the Texas refinery explosion in March 2005. Four years later, the Occupational Safety and Health Administration (OSHA) hit the company with a record $87 million fine for failing to correct the problems.
In all, BP has paid or has pending over $730 million in fines, penalties, or settlements to federal, state, or local governments in recent years for environmental, worker safety, or price manipulation violations, according to a report by the consumer protection group Public Citizen.
BP’s record of lawbreaking was no secret, but it was not well known. The March 2005 explosion at BP’s 1,200-acre oil refinery in Texas City, just outside Houston, killed 15 workers and injured some 170 others. But the accident was not front-page news outside Texas. Nor were the later investigations that found “significant process issues” at all five of BP’s refineries in the United States.
In like vein, the 200,000-gallon oil spill from a BP pipeline on Alaska’s North Slope in March 2006 made front-page news in Alaska, but not the rest of the country. The spill, the largest ever on the North Slope, was linked to corrosion in the pipeline. BP had known about the problem at least since 2004, according to later investigations.
In October 2007, the company pleaded guilty to federal crimes for both incidents: a felony violation of the Clean Air Act for the refinery accident, with a $50 million fine; a misdemeanor violation of the Clean Water Act for the oil spill, with $4 million in restitution to the state of Alaska and a $4 million payment to the National Fish and Wildlife Foundation. On the same day, the company agreed to pay $303 million to settle civil charges that it unlawfully manipulated prices in the market for propane. The guilty pleas were seen as an effort at good corporate citizenship by BP’s then-new CEO: Tony Hayward.
After his first arrest — for a botched restaurant robbery — Terrance Graham negotiated a favorable plea agreement and vowed to do better. “I’ve decided to turn my life around,” Graham promised. After the second offense — a home-invasion robbery — an exasperated Judge Day scolded Graham for blowing his second chance. “If I can’t do anything to get you back on the right path,” the judge said, “then I have to start focusing on the community and trying to protect the community from your actions.”
Four and a half years after the Texas City refinery explosion, OSHA concluded last October that BP had failed to make the safety improvements at the facility as promised. The agency proposed fines totaling $87 million. BP said it would contest the penalties. In March, the agency proposed a separate $3 million fine for safety violations at BP’s refinery in Oregon, Ohio, near Toledo.
An analysis of OSHA’s data base by the Center for Public Integrity, the Washington-based journalistic watchdog group, found BP far and away the worst safety offender among U.S. refineries. BP was responsible for 829 “willful” violations from the period June 2007-February 2010, the center said; the total for all other refineries: 22.
Now, internal documents obtained by Pro Publica, the nonprofit investigative journalism group, purportedly detail the company’s disregard of safety and environmental problems in the past. The documents — leaked by someone “close to the company” but critical of its performance — depict a corporate environment in which employees were pressured to cut corners and to keep any safety concerns to themselves.
Terrance Graham will get a new sentence after the U.S. Supreme Court ruled on May 17 that life without parole is cruel and unusual punishment for a juvenile offender. But Florida Attorney General Bill McCollum is promising that Graham will still serve “a very long term in prison.” Meanwhile, U.S. Attorney General Eric Holder says the Justice Department has opened a criminal investigation of BP in the wake of the Gulf spill. “We will prosecute to the fullest extent of the law anyone who has violated the law,” Holder said.
* * *
The cause of the April 20 blowout of BP’s Deepwater Horizon well in the Gulf of Mexico remains to be determined. So, too, the full extent of the economic, environmental, legal, and social costs of what is already the worst oil spill in U.S. history, a spill unlikely to be contained for at least two months, if then.
Seven weeks later, however, this much is known: BP has a long history of safety and environmental violations that can be blamed for the deaths of 15 refinery workers in Texas, the spoilage of Alaska’s North Shore, and lesser injuries to workers and environments at other sites.
The company has twice pleaded guilty to federal criminal charges. It was put on probation after the Texas refinery explosion in March 2005. Four years later, the Occupational Safety and Health Administration (OSHA) hit the company with a record $87 million fine for failing to correct the problems.
In all, BP has paid or has pending over $730 million in fines, penalties, or settlements to federal, state, or local governments in recent years for environmental, worker safety, or price manipulation violations, according to a report by the consumer protection group Public Citizen.
BP’s record of lawbreaking was no secret, but it was not well known. The March 2005 explosion at BP’s 1,200-acre oil refinery in Texas City, just outside Houston, killed 15 workers and injured some 170 others. But the accident was not front-page news outside Texas. Nor were the later investigations that found “significant process issues” at all five of BP’s refineries in the United States.
In like vein, the 200,000-gallon oil spill from a BP pipeline on Alaska’s North Slope in March 2006 made front-page news in Alaska, but not the rest of the country. The spill, the largest ever on the North Slope, was linked to corrosion in the pipeline. BP had known about the problem at least since 2004, according to later investigations.
In October 2007, the company pleaded guilty to federal crimes for both incidents: a felony violation of the Clean Air Act for the refinery accident, with a $50 million fine; a misdemeanor violation of the Clean Water Act for the oil spill, with $4 million in restitution to the state of Alaska and a $4 million payment to the National Fish and Wildlife Foundation. On the same day, the company agreed to pay $303 million to settle civil charges that it unlawfully manipulated prices in the market for propane. The guilty pleas were seen as an effort at good corporate citizenship by BP’s then-new CEO: Tony Hayward.
* * *
After his first arrest — for a botched restaurant robbery — Terrance Graham negotiated a favorable plea agreement and vowed to do better. “I’ve decided to turn my life around,” Graham promised. After the second offense — a home-invasion robbery — an exasperated Judge Day scolded Graham for blowing his second chance. “If I can’t do anything to get you back on the right path,” the judge said, “then I have to start focusing on the community and trying to protect the community from your actions.”
* * *
Four and a half years after the Texas City refinery explosion, OSHA concluded last October that BP had failed to make the safety improvements at the facility as promised. The agency proposed fines totaling $87 million. BP said it would contest the penalties. In March, the agency proposed a separate $3 million fine for safety violations at BP’s refinery in Oregon, Ohio, near Toledo.
An analysis of OSHA’s data base by the Center for Public Integrity, the Washington-based journalistic watchdog group, found BP far and away the worst safety offender among U.S. refineries. BP was responsible for 829 “willful” violations from the period June 2007-February 2010, the center said; the total for all other refineries: 22.
Now, internal documents obtained by Pro Publica, the nonprofit investigative journalism group, purportedly detail the company’s disregard of safety and environmental problems in the past. The documents — leaked by someone “close to the company” but critical of its performance — depict a corporate environment in which employees were pressured to cut corners and to keep any safety concerns to themselves.
* * *
Terrance Graham will get a new sentence after the U.S. Supreme Court ruled on May 17 that life without parole is cruel and unusual punishment for a juvenile offender. But Florida Attorney General Bill McCollum is promising that Graham will still serve “a very long term in prison.” Meanwhile, U.S. Attorney General Eric Holder says the Justice Department has opened a criminal investigation of BP in the wake of the Gulf spill. “We will prosecute to the fullest extent of the law anyone who has violated the law,” Holder said.
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