Richard Nagareda was a well loved professor at Vanderbilt University Law School, a nationally recognized expert on class action lawsuits, and a thoughtful and highly accessible source for journalists until his untimely death last October at age 47.
Nagareda achieved a measure of posthumous influence, however, in the Supreme Court’s decision this past term to kill the giant sex discrimination class action against Wal-Mart. In his opinion for the 5-4 majority in Wal-Mart Stores, Inc. v. Dukes, Justice Antonin Scalia cited one of Nagareda’s final publications to deliver the fatal blow.
“Any competently crafted class complaint literally raises ‘common’ questions,” Nagareda wrote in “Class Certification in the Age of Aggregate Proof,” 84 N.Y.U. L.Rev. 97 (2009). “What matters to class certification,” he continued, “is not the raising of common ‘questions’ . . . but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.”
Scalia used Nagareda’s point to show that the potential class members in the Wal-Mart suit had too many “dissimilarities” to bundle their claims into a single class action. Nagareda’s scholarship was important enough for Justice Ruth Bader Ginsburg, in her dissenting opinion, to mine one of his earlier articles to argue for allowing the suit.
As former law professors, Scalia and Ginsburg naturally appreciate legal scholarship. Both wrote a few law review articles themselves in earlier days, and both cited law review articles in other opinions during the past term. So did the other former law professors on the court — Anthony M. Kennedy, Stephen G. Breyer, and Elena Kagan — as well as the non-scholars Clarence Thomas and Samuel A. Alito Jr.
But not Chief Justice John G. Roberts Jr. In his eight majority opinions and three dissents, I spotted not a single citation to a law review article. The omission is apparently not coincidental. Roberts, it seems, has a low opinion of legal scholarship.
The normally circumspect Roberts unloaded on law professors in answering a question at the recent conference of federal judges in the Fourth Circuit. “Pick up a copy of any law review that you see,” Roberts said, “and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”
Roberts’ comment at the June 25 session stirred a vigorous on-line debate. Sherrilyn Ifill, a law professor at the University of Maryland, took strong exception in a July 1 post on the legal blog Concurring Opinions. “More often than not,” Ifill wrote, “law scholars today are deeply engaged with helping legal decisionmakers grapple with difficult legal issues. Our scholarship – if read – can be very helpful to judges and their clerks as they navigate the shoals of complex legal decisionmaking.”
Ifill made her point with specifics. She cited recent law review articles on such questions as the applicability of the Fourth Amendment to GPS surveillance, the reliability of eyewitness identification, and the increased use of alternative dispute resolution. She noted that the D.C. Circuit cited the GPS article in its decision requiring a search warrant for GPS tracking. The Supreme Court has agreed to decide the issue in a separate case next term.
Among more than a dozen commenters, some agreed with Roberts and some with Ifill. Commenters had the same range of opinion after a July 8 post on the Adjunct Law Prof Blog. But several commenters on both blogs suggested that both Roberts and Ifill were misunderstanding the role of scholarship. “I've never heard anyone criticize [Stephen] Hawking's work because it doesn't help them when they want to fix their car,” one commenter said.
Jonathan Adler, a conservative professor a Case Western Reserve University Law School, agrees. “There’s some truth in what Chief Justice Robert says,” Adler remarks, “but it’s a mistake to say that the only legitimate purpose of legal scholarship is to inform courts on decisions.”
Lurking in some of the comments is an additional, political controversy: the view of legal academia as dominated by liberal, socially activist professors more interested in causes than in law. “I just wish the law schools would return to teaching the basics of reading the law,” an 80-year-old retired lawyer commented.
Whether or not Roberts holds that view, Ifill matches the conservatives’ stereotype of an activist academic: an alumna of the NAACP Legal Defense Fund whose courses include a seminar on “Reparations, Reconciliation and Restorative Justice.” Conservatives might also dismiss the articles she cites as ideologically liberal. But the authors explored in concrete situations how to give effect to provisions of the Bill of Rights that are honored by conservatives and liberals alike. The growing number of conservative legal academics do the same.
So did Nagareda. When I interviewed him in 2008 for my report “High-Impact Litigation,” he was admirably evenhanded in describing the importance of and the problems with the present-day civil litigation system. Roberts, on the other hand, was neither evenhanded nor even well informed in his comments. After blithely dissing legal scholarship, the chief justice acknowledged that he would be hard pressed to recall the title of the last law review article he read.
Postscript: An empirical study by two professors, Lee Petherbridge of Loyola Law School in Los Angeles and David L. Schwartz of Chicago-Kent College of Law, finds that the Court has cited law review articles in roughly one-third of its decisions over the past 60 years. The study, "An Empirical Assessment of the Supreme Court's Use of Legal Scholarship," currently in draft, can be found here.
Tuesday, July 19, 2011
Monday, July 4, 2011
Roberts Court's Topsy-Turvy Disconnect With Real World
It takes three years of law school to think like a lawyer, but one can grow out of it. The Supreme Court’s conservative majority, however, seems stuck in a law school mode of elevating legal form over practical substance, rules over logic. The results, in several decisions in the court’s just-concluded term, may make sense in a law school classroom, but not in the real world.
No decision better illustrates the conservatives’ disconnect with the real world than the ruling that ended the term by striking down a critical provision in Arizona’s public campaign financing system. The Citizens Clean Elections Act, approved by voters in 1998 in the wake of rampant bribe-taking among state legislators, sought to minimize the corrupting effect of money on politics by providing public funds for candidates in state races.
Authors of the ballot measure understood that candidates had to choose to participate in public financing — and accept the limits on overall spending — but might not if they feared being outspent by a privately funded opponent. To avoid that result, the law gave the publicly financed candidate additional matching funds — up to double the original grant — based on the opponent’s spending.
The Supreme Court, in 1976, had upheld public campaign financing as part of the post-Watergate reform act. But the Roberts Court, in its June 27 ruling, Arizona Free Enterprise Club v. Bennett, decided that Arizona’s matching-grant provision could not stand because it violated the First Amendment rights of privately financed candidates.
Writing for the bloc of five conservatives, Chief Justice John G. Roberts Jr. reasoned that the Arizona law penalized privately financed candidates for exercising their right to spend and raise funds for their candidacies. The law also violated the rights of independent groups, Roberts said, because independent spending in support of the privately funded candidate counted in triggering the matching grant for publicly financed contenders.
Roberts had a plausible point in regard to independent groups, and it would have been possible to hold only that part of the law unconstitutional. But he is unrealistic in thinking that privately financed candidates might hold back on spending or fund-raising to cap the publicly funded opponent’s spending is unrealistic.
In the real world, candidates raise and spend all the money they can get. Roberts pointed to isolated testimony in the record that some privately funded candidates in Arizona had held back on spending over the past decade. But, as Justice Elena Kagan noted in her dissent, the lower courts that looked at the same testimony were unpersuaded.
Roberts was also divorced from reality in assessing the overall effect of the law. The measure had to be struck down, the chief justice wrote, because it “inhibit[ed] robust and wide-open political debate.” Kagan countered by noting that the law actually “subsidizes and so produces more political speech.” “Except in a world gone topsy-turvy,” she wrote, “additional campaign speech and electoral competition is not a First Amendment injury.”
The court went topsy-turvy in other decisions in its final weeks. In PLIVA, Inc. v. Mensing, the same conservative-liberal split produced a 5-4 decision [June 23] holding that generic drug manufacturers are exempt from state law requiring adequate warning labels. Two years earlier, the court had held that federal law does not preempt state consumer protection laws in suits against brand-name drug makers. But Justice Clarence Thomas said that state law had to give way in generic drug cases because the Food and Drug Administration requires labels on generic drugs to be identical to those on brand-name equivalents.
Thomas acknowledged that the ruling “makes little sense” to the plaintiffs who developed a serious neurological disorder from unwarned prolonged use of the drug at issue. But he said that generic drug manufacturers had no choice: it was “impossible” to comply with both state and federal requirements. In fact, as Justice Sonia Sotomayor pointed out in dissent, the drug-makers could have asked the FDA for permission to revise their warnings based on new information about dangerous side effects. They did not try.
Earlier, the court had also defied real-world experience in rejecting a suit by out-of-luck investors against one of the Janus family of mutual funds. In Janus Capital Group, Inc. v. First Derivative Traders [June 13], the court said the investors could not sue Janus Capital Management, the mutual fund’s investment adviser, for misleading statements in the fund’s prospectus that it helped prepare.
For the majority, Thomas said the misleading statements were “made” by the mutual fund, not by the investment adviser. In the real world, investors in a mutual fund rely in part on the fund’s investment adviser. And, as Justice Stephen G. Breyer said for the four liberal dissenters, nothing in logic or language prevented the court from holding that both the fund and the investment adviser were involved in making the misleading statements.
As the justices left for their summer recess, several observers noted that the term’s decisions reflected a seeming agenda by the Roberts Court to tear down campaign finance regulations and cut back on civil litigation. To reach those results in these cases, however, the court had to look at the law in the abstract instead of in its real-world application. “The life of the law,” Justice Oliver Wendell Holmes Jr. famously wrote, “has not been logic; it has been experience.” The court’s conservatives could do well to take Holmes’ wisdom to heart.
No decision better illustrates the conservatives’ disconnect with the real world than the ruling that ended the term by striking down a critical provision in Arizona’s public campaign financing system. The Citizens Clean Elections Act, approved by voters in 1998 in the wake of rampant bribe-taking among state legislators, sought to minimize the corrupting effect of money on politics by providing public funds for candidates in state races.
Authors of the ballot measure understood that candidates had to choose to participate in public financing — and accept the limits on overall spending — but might not if they feared being outspent by a privately funded opponent. To avoid that result, the law gave the publicly financed candidate additional matching funds — up to double the original grant — based on the opponent’s spending.
The Supreme Court, in 1976, had upheld public campaign financing as part of the post-Watergate reform act. But the Roberts Court, in its June 27 ruling, Arizona Free Enterprise Club v. Bennett, decided that Arizona’s matching-grant provision could not stand because it violated the First Amendment rights of privately financed candidates.
Writing for the bloc of five conservatives, Chief Justice John G. Roberts Jr. reasoned that the Arizona law penalized privately financed candidates for exercising their right to spend and raise funds for their candidacies. The law also violated the rights of independent groups, Roberts said, because independent spending in support of the privately funded candidate counted in triggering the matching grant for publicly financed contenders.
Roberts had a plausible point in regard to independent groups, and it would have been possible to hold only that part of the law unconstitutional. But he is unrealistic in thinking that privately financed candidates might hold back on spending or fund-raising to cap the publicly funded opponent’s spending is unrealistic.
In the real world, candidates raise and spend all the money they can get. Roberts pointed to isolated testimony in the record that some privately funded candidates in Arizona had held back on spending over the past decade. But, as Justice Elena Kagan noted in her dissent, the lower courts that looked at the same testimony were unpersuaded.
Roberts was also divorced from reality in assessing the overall effect of the law. The measure had to be struck down, the chief justice wrote, because it “inhibit[ed] robust and wide-open political debate.” Kagan countered by noting that the law actually “subsidizes and so produces more political speech.” “Except in a world gone topsy-turvy,” she wrote, “additional campaign speech and electoral competition is not a First Amendment injury.”
The court went topsy-turvy in other decisions in its final weeks. In PLIVA, Inc. v. Mensing, the same conservative-liberal split produced a 5-4 decision [June 23] holding that generic drug manufacturers are exempt from state law requiring adequate warning labels. Two years earlier, the court had held that federal law does not preempt state consumer protection laws in suits against brand-name drug makers. But Justice Clarence Thomas said that state law had to give way in generic drug cases because the Food and Drug Administration requires labels on generic drugs to be identical to those on brand-name equivalents.
Thomas acknowledged that the ruling “makes little sense” to the plaintiffs who developed a serious neurological disorder from unwarned prolonged use of the drug at issue. But he said that generic drug manufacturers had no choice: it was “impossible” to comply with both state and federal requirements. In fact, as Justice Sonia Sotomayor pointed out in dissent, the drug-makers could have asked the FDA for permission to revise their warnings based on new information about dangerous side effects. They did not try.
Earlier, the court had also defied real-world experience in rejecting a suit by out-of-luck investors against one of the Janus family of mutual funds. In Janus Capital Group, Inc. v. First Derivative Traders [June 13], the court said the investors could not sue Janus Capital Management, the mutual fund’s investment adviser, for misleading statements in the fund’s prospectus that it helped prepare.
For the majority, Thomas said the misleading statements were “made” by the mutual fund, not by the investment adviser. In the real world, investors in a mutual fund rely in part on the fund’s investment adviser. And, as Justice Stephen G. Breyer said for the four liberal dissenters, nothing in logic or language prevented the court from holding that both the fund and the investment adviser were involved in making the misleading statements.
As the justices left for their summer recess, several observers noted that the term’s decisions reflected a seeming agenda by the Roberts Court to tear down campaign finance regulations and cut back on civil litigation. To reach those results in these cases, however, the court had to look at the law in the abstract instead of in its real-world application. “The life of the law,” Justice Oliver Wendell Holmes Jr. famously wrote, “has not been logic; it has been experience.” The court’s conservatives could do well to take Holmes’ wisdom to heart.
Monday, June 27, 2011
The Careless Ethics of Justice Clarence Thomas
Clarence Thomas took the oath of office as a Supreme Court justice two decades ago under an ethics cloud cast by charges of sexual harassment that came down to a still unresolved swearing contest between himself and Anita Hill. Today, Thomas is again under an ethics cloud, but for the most part the actions and omissions being questioned are undisputed, with only their significance up for debate.
The current ethics inquiries began in January with the disclosure that Thomas and his conservative colleague Antonin Scalia had attended a political retreat in January 2008 run by the wealthy industrialist brothers Charles and David Koch, high-spending patrons of political causes. To the public interest group Common Cause, Scalia’s and Thomas’s attendance raised questions about their later participation in the high-profile campaign finance case Citizens United because the Koch brothers stood to benefit from a ruling to lift restrictions on corporate spending in political campaigns.
In the same month, the Los Angeles Times reported that Thomas had failed for at least five years to disclose the income that his wife Ginny had received from the Heritage Foundation, the conservative think-tank. Ginny Thomas earned $680,000 during the time period, but until he revised the financial disclosure forms recently following the newspaper story Thomas had shown no spousal income on the legally mandated reports.
Now, the New York Times has raised a third ethics issue by depicting Thomas as having provided critical fund-raising assistance to a planned museum to celebrate the history and culture of his birthplace, Pinpoint, Georgia. As the Times reported in a long investigative article [June 18], Thomas helped the promoter of the museum secure a multimillion-dollar donation from Harlan Crow, a Texas real estate magnate and personal friend and benefactor of Thomas’s for years.
The Code of Judicial Conduct, in Canon 4C, generally prohibits federal judges from participating in fund-raising activities beyond assistance in planning or solicitation of family members or fellow judges. The code is binding on most federal judges, but not Supreme Court justices.
The details of Thomas’s role in the Pinpoint museum project are yet to be filled in. According to the Times, Algernon Varn, grandson of the owner of the cannery to be preserved and converted into the museum, Thomas told him, “I’ve got a friend I’m going to put you in touch with.” The story does not specify whether Thomas personally called Crow or merely allowed Varn to use his name in soliciting the Texan. Both Thomas and Crow declined to respond to questions, the newspaper said.
Crow was reported to have made a seven-figure contribution to finance the purchase and restoration of the cannery, where Thomas’s mother once worked as a crab picker. Earlier, Crow had helped finance a library project in Thomas’s childhood home of Savannah dedicated to the justice, the Times stated. Crow also gave Thomas a historic bible once owned by Frederick Douglass and valued at $19,000. And he reportedly provided $500,000 to Ginny Thomas to start a Tea Party-related group.
By checking flight logs, the newspaper also reported circumstantial evidence that Thomas has flown on corporate jets provided by Crowd to attend speaking events. The newspaper said no travel gifts were reported on Thomas’s financial disclosure forms.
Conservative court-watcher Curt Levey sees no real ethics issues here. Levey, executive director of the Committee for Justice, dismisses criticism of Scalia’s or Thomas’s attendance at the Koch brothers’ event and minimizes the omissions of Ginny Thomas’s income as mere error. He finds nothing unethical in what he assumes to have been Thomas’s role in merely introducing the Pinpoint museum promoter to his friend Crow.
For Levey, the episode is fueled by liberal anger and paranoia. But there is purpose, he believes. Liberals, he says, hope to intimidate conservative justices on issues headed their way — notably, President Obama’s health care reform — and to delegitimate any decisions that go against liberal positions.
Thomas apparently shares this view, according to the Wall Street Journal’s account of a speech the justice gave to a Federalist Society conference at the University of Virginia on Feb. 26. In the speech, Thomas said his critics “seem bent on undermining” the Supreme Court’s legitimacy in the public’s mind.
The public interest group Common Cause, however, believes the issues are substantial and call for a response not only from Thomas but also from Chief Justice John G. Roberts Jr. The group says Scalia and Thomas both should have recused themselves from the Citizens United case and the decision now should be set aside and the case re-argued. Arn Pearson, the group’s vice president for program, dismisses as implausible Thomas’s claim that he misunderstood his obligation to disclose his wife’s income. And the possible fundraising violations reported by the New York Times call for a full review by the court and for some mechanism to apply the ethics code binding on the justices themselves.
Levey thinks these issues will not go far, and he may be right. The court is not about to reconsider Citizens United. The Justice Department is not about to take on a justice’s now corrected errors on financial disclosure. And any thought of impeachment dies in the Republican-controlled House of Representatives. But the events paint an indelible portrait of a justice who takes less care with ethics issues than the public might expect from the highest court in the land.
The current ethics inquiries began in January with the disclosure that Thomas and his conservative colleague Antonin Scalia had attended a political retreat in January 2008 run by the wealthy industrialist brothers Charles and David Koch, high-spending patrons of political causes. To the public interest group Common Cause, Scalia’s and Thomas’s attendance raised questions about their later participation in the high-profile campaign finance case Citizens United because the Koch brothers stood to benefit from a ruling to lift restrictions on corporate spending in political campaigns.
In the same month, the Los Angeles Times reported that Thomas had failed for at least five years to disclose the income that his wife Ginny had received from the Heritage Foundation, the conservative think-tank. Ginny Thomas earned $680,000 during the time period, but until he revised the financial disclosure forms recently following the newspaper story Thomas had shown no spousal income on the legally mandated reports.
Now, the New York Times has raised a third ethics issue by depicting Thomas as having provided critical fund-raising assistance to a planned museum to celebrate the history and culture of his birthplace, Pinpoint, Georgia. As the Times reported in a long investigative article [June 18], Thomas helped the promoter of the museum secure a multimillion-dollar donation from Harlan Crow, a Texas real estate magnate and personal friend and benefactor of Thomas’s for years.
The Code of Judicial Conduct, in Canon 4C, generally prohibits federal judges from participating in fund-raising activities beyond assistance in planning or solicitation of family members or fellow judges. The code is binding on most federal judges, but not Supreme Court justices.
The details of Thomas’s role in the Pinpoint museum project are yet to be filled in. According to the Times, Algernon Varn, grandson of the owner of the cannery to be preserved and converted into the museum, Thomas told him, “I’ve got a friend I’m going to put you in touch with.” The story does not specify whether Thomas personally called Crow or merely allowed Varn to use his name in soliciting the Texan. Both Thomas and Crow declined to respond to questions, the newspaper said.
Crow was reported to have made a seven-figure contribution to finance the purchase and restoration of the cannery, where Thomas’s mother once worked as a crab picker. Earlier, Crow had helped finance a library project in Thomas’s childhood home of Savannah dedicated to the justice, the Times stated. Crow also gave Thomas a historic bible once owned by Frederick Douglass and valued at $19,000. And he reportedly provided $500,000 to Ginny Thomas to start a Tea Party-related group.
By checking flight logs, the newspaper also reported circumstantial evidence that Thomas has flown on corporate jets provided by Crowd to attend speaking events. The newspaper said no travel gifts were reported on Thomas’s financial disclosure forms.
Conservative court-watcher Curt Levey sees no real ethics issues here. Levey, executive director of the Committee for Justice, dismisses criticism of Scalia’s or Thomas’s attendance at the Koch brothers’ event and minimizes the omissions of Ginny Thomas’s income as mere error. He finds nothing unethical in what he assumes to have been Thomas’s role in merely introducing the Pinpoint museum promoter to his friend Crow.
For Levey, the episode is fueled by liberal anger and paranoia. But there is purpose, he believes. Liberals, he says, hope to intimidate conservative justices on issues headed their way — notably, President Obama’s health care reform — and to delegitimate any decisions that go against liberal positions.
Thomas apparently shares this view, according to the Wall Street Journal’s account of a speech the justice gave to a Federalist Society conference at the University of Virginia on Feb. 26. In the speech, Thomas said his critics “seem bent on undermining” the Supreme Court’s legitimacy in the public’s mind.
The public interest group Common Cause, however, believes the issues are substantial and call for a response not only from Thomas but also from Chief Justice John G. Roberts Jr. The group says Scalia and Thomas both should have recused themselves from the Citizens United case and the decision now should be set aside and the case re-argued. Arn Pearson, the group’s vice president for program, dismisses as implausible Thomas’s claim that he misunderstood his obligation to disclose his wife’s income. And the possible fundraising violations reported by the New York Times call for a full review by the court and for some mechanism to apply the ethics code binding on the justices themselves.
Levey thinks these issues will not go far, and he may be right. The court is not about to reconsider Citizens United. The Justice Department is not about to take on a justice’s now corrected errors on financial disclosure. And any thought of impeachment dies in the Republican-controlled House of Representatives. But the events paint an indelible portrait of a justice who takes less care with ethics issues than the public might expect from the highest court in the land.
Monday, June 20, 2011
Obama, Critics at War Powers Impasse on Libya
For all their education and practice in rhetorical skills, presidents sometimes have trouble with the simplest and most straightforward of words. Bill Clinton stumbled over the meaning of “is.” George W. Bush tortured the definition of “torture.” And now Barack Obama is telling Congress and the public that the United States is not engaged in “hostilities” in the Libyan civil war.
Like Clinton and Bush before him, Obama is playing word games with a purpose. In this case, Obama is avoiding the obligation under the War Powers Resolution to consult with and notify Congress before introducing U.S. forces into “hostilities” abroad and to withdraw those forces after 60 days unless Congress affirmatively authorizes the continued deployment.
No president has loved the War Powers Resolution, which Congress passed in 1973 after the Vietnam escalation horse was years out of the barn. Many of Obama’s supporters, however, expected him to be the antidote to eight years of presidential hubris under George W. Bush.
Now, Obama finds himself assailed for presidential presumption by partisan Republicans, disappointed leftist Democrats, middle-of-the-road political observers, and the editorial boards of, among others, the New York Times and Washington Post. Some House Republicans want to cut off funding for the U.S. role in the Libyan intervention. Meanwhile, an unlikely bloc of 10 House members led by Ohio’s leftist Democrat Dennis Kucinich and North Carolina’s conservative Republican Walter Jones filed a federal court suit seeking to declare the continued deployment in Libya unconstitutional under the War Powers Resolution.
The likelihood of definitive resolution of these issues is small. Federal courts have stayed out of war-powers issues during and ever since the Vietnam War. The funding cutoff is probably a dead letter in the Senate even if it is approved in the House. But Congress is equally unlikely to pass the bipartisan resolution sponsored by Democrat John Kerry and Republican John McCain in the Senate to approve the Libyan intervention. House Republicans are not apt to give Obama the benefit of congressional blessing for any of his foreign policies.
Apart from the politics, the law on the issue will also remain unsettled. Obama’s position, explained near the end of a 32-page memorandum submitted to Congress last week [June 15], is that the limited U.S. military operations in the Libya intervention are “distinct from the kind of ‘hostilities’ contemplated by the [War Powers] Resolution’s 60 day termination provision.”
U.S. forces are playing “a constrained and supporting role in a multinational coalition,” according to the memorandum jointly prepared by the State and Defense departments. The coalition’s mission, authorized and limited by a United Nations resolution, is solely to protect civilian populated areas from attacks and to enforce an arms embargo and no-fly zone.
“U.S. operations,” the memorandum continues, “do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterized by those factors.”
It is easy to scoff at the assertion that U.S. drone strikes and support for NATO air strikes aimed at Libyan government sites and facilities do not constitute “hostilities.” It is easy as well to doubt the rosy out-of-harm’s-way scenario envisioned in the memorandum.
The legal reasoning is tenable, however, as a way to accommodate the rigidities of the War Powers Resolution with the diplomatic and military realities of wielding U.S. power in increasingly hard to define global crises. But Obama’s position was undermined by the disclosure – by the New York Times’s relentless presidential-power watchdog Charlie Savage – that the acting head of the Justice Department’s Office of Legal Counsel and the general counsel of the Defense Department both disagree.
Caroline Krass at Justice and Jeh Johnson at the Pentagon both reportedly advised that the U.S. military activities in Libya amount to “hostilities” and the War Powers Resolution applies. According to Savage’s story, Obama chose instead to follow contrary advice from White House counsel Robert Bauer and Harold Koh, the State Department’s legal adviser.
The puzzling aspect of the administration’s position is the long delay in its coming. The U.S.-NATO air campaign in Libya began on March 20. By the administration’s account, U.S. forces had shifted to a support role by April 7. Administration officials insisted the War Powers Resolution deadline was inapplicable, but failed to set out the reasoning until last week – nearly 90 days after the intervention began.
The State-Defense memorandum makes a good case for the Libyan intervention in policy terms. The critics on Capitol Hill have no comparable position paper to answer the question: what next? They seem simply to want to get the United States out of the affair, leaving the fate of the Libyan revolt to the Europeans or the rebels themselves.
The War Powers Resolution was an earnest attempt to make both president and Congress more accountable in issues of war and peace. As Robert Chesney, national security expert at the University of Texas Law School, wanly concludes, however, it has been less than a success. The president, he says in a commentary written for the Brookings Institution, takes policy seriously, but not law, while Congress takes law seriously, but not policy. Nothing in the current episode suggests the two political branches are likely to change their ways any time soon.
Like Clinton and Bush before him, Obama is playing word games with a purpose. In this case, Obama is avoiding the obligation under the War Powers Resolution to consult with and notify Congress before introducing U.S. forces into “hostilities” abroad and to withdraw those forces after 60 days unless Congress affirmatively authorizes the continued deployment.
No president has loved the War Powers Resolution, which Congress passed in 1973 after the Vietnam escalation horse was years out of the barn. Many of Obama’s supporters, however, expected him to be the antidote to eight years of presidential hubris under George W. Bush.
Now, Obama finds himself assailed for presidential presumption by partisan Republicans, disappointed leftist Democrats, middle-of-the-road political observers, and the editorial boards of, among others, the New York Times and Washington Post. Some House Republicans want to cut off funding for the U.S. role in the Libyan intervention. Meanwhile, an unlikely bloc of 10 House members led by Ohio’s leftist Democrat Dennis Kucinich and North Carolina’s conservative Republican Walter Jones filed a federal court suit seeking to declare the continued deployment in Libya unconstitutional under the War Powers Resolution.
The likelihood of definitive resolution of these issues is small. Federal courts have stayed out of war-powers issues during and ever since the Vietnam War. The funding cutoff is probably a dead letter in the Senate even if it is approved in the House. But Congress is equally unlikely to pass the bipartisan resolution sponsored by Democrat John Kerry and Republican John McCain in the Senate to approve the Libyan intervention. House Republicans are not apt to give Obama the benefit of congressional blessing for any of his foreign policies.
Apart from the politics, the law on the issue will also remain unsettled. Obama’s position, explained near the end of a 32-page memorandum submitted to Congress last week [June 15], is that the limited U.S. military operations in the Libya intervention are “distinct from the kind of ‘hostilities’ contemplated by the [War Powers] Resolution’s 60 day termination provision.”
U.S. forces are playing “a constrained and supporting role in a multinational coalition,” according to the memorandum jointly prepared by the State and Defense departments. The coalition’s mission, authorized and limited by a United Nations resolution, is solely to protect civilian populated areas from attacks and to enforce an arms embargo and no-fly zone.
“U.S. operations,” the memorandum continues, “do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterized by those factors.”
It is easy to scoff at the assertion that U.S. drone strikes and support for NATO air strikes aimed at Libyan government sites and facilities do not constitute “hostilities.” It is easy as well to doubt the rosy out-of-harm’s-way scenario envisioned in the memorandum.
The legal reasoning is tenable, however, as a way to accommodate the rigidities of the War Powers Resolution with the diplomatic and military realities of wielding U.S. power in increasingly hard to define global crises. But Obama’s position was undermined by the disclosure – by the New York Times’s relentless presidential-power watchdog Charlie Savage – that the acting head of the Justice Department’s Office of Legal Counsel and the general counsel of the Defense Department both disagree.
Caroline Krass at Justice and Jeh Johnson at the Pentagon both reportedly advised that the U.S. military activities in Libya amount to “hostilities” and the War Powers Resolution applies. According to Savage’s story, Obama chose instead to follow contrary advice from White House counsel Robert Bauer and Harold Koh, the State Department’s legal adviser.
The puzzling aspect of the administration’s position is the long delay in its coming. The U.S.-NATO air campaign in Libya began on March 20. By the administration’s account, U.S. forces had shifted to a support role by April 7. Administration officials insisted the War Powers Resolution deadline was inapplicable, but failed to set out the reasoning until last week – nearly 90 days after the intervention began.
The State-Defense memorandum makes a good case for the Libyan intervention in policy terms. The critics on Capitol Hill have no comparable position paper to answer the question: what next? They seem simply to want to get the United States out of the affair, leaving the fate of the Libyan revolt to the Europeans or the rebels themselves.
The War Powers Resolution was an earnest attempt to make both president and Congress more accountable in issues of war and peace. As Robert Chesney, national security expert at the University of Texas Law School, wanly concludes, however, it has been less than a success. The president, he says in a commentary written for the Brookings Institution, takes policy seriously, but not law, while Congress takes law seriously, but not policy. Nothing in the current episode suggests the two political branches are likely to change their ways any time soon.
Monday, June 13, 2011
‘Right-Wing Legal Engineering’ and the Roberts Court
Whatever else one can say about Newt Gingrich’s shot-in-the-foot presidential campaign, the former speaker of the House was right in his fateful “Meet the Press” appearance to caution his fellow Republicans against “right-wing social engineering.” Gingrich directed his advice to the House Republicans who want to transform Medicare, but the Republican appointees who now control the Supreme Court’s decisions could also benefit from the advice.
In particular, Chief Justice John G. Roberts Jr. needs to ask himself how he wants the Roberts Court remembered years from now. So far, the record is mixed on how far Roberts will carry the conservative views he brought with him to the court at the risk of exposing the court to criticism for right-wing legal engineering.
With 5-4 votes, the court has weakened reproductive rights for women (Gonzales v. Carhart, 2007) and narrowed enforcement of the exclusionary rule (Herring v. United States, 2009). More dramatically, the Court in 2010 freed corporations (and unions) from any limits on what they can spend in political campaigns (Citizens United v. FEC).
On the other hand, the court stopped short of prohibiting all racial diversity policies by local school districts (Parents Involved in Community Schools v. Seattle School District No. 1, 2007). And it caught itself right at the brink of declaring the landmark Voting Rights Act of 1965 unconstitutional. (North Austin Municipal Utility District No. 1 v. Holder). In the first case and probably in the second, however, it was Justice Anthony M. Kennedy, not Roberts, who stopped the court from a right-wing tear.
The court’s next two major tests of potential right-wing engineering were forming in lower courts last week: the constitutional challenge to President Obama’s health care reform and a new constitutional attack on campaign finance limits on corporations.
The federal appeals court in Atlanta on Wednesday (June 8) held the third appellate-level arguments in the partisan-inspired attack on the yet-to-be-implemented health care law. Opponents say Obama and Congress exceeded the federal government’s powers in requiring everyone to have health insurance and in imposing new Medicaid requirements on the states.
Meanwhile, a Reagan-appointed federal judge in Alexandria, Va., reaffirmed on Tuesday (June 7) his decision to hold unconstitutional the century-old ban on corporate campaign contributions to federal candidates. Judge James Cacheris ruled that the First Amendment gives corporations the right to make direct campaign contributions to candidates. Two days later, however, the federal appeals court in California became the second in two months to uphold local ordinances with similar bans on corporate campaign contributions.
On both issues, health care and campaign finance, there are precedents from history that should weigh in the Roberts Court’s mind when these issues reach the justices, possibly as early as its next term. The Lochner-era court carried freedom of contract too far in freeing corporations from some economic regulations. And the post-Taft court of the early 1930s discredited itself by striking down some of President Franklin D. Roosevelt’s New Deal programs to solve what were then the nation’s most pressing economic problems.
The Roberts Court conservatives are likely to approach both issues, however, with views and sympathies in line with the challengers. Roberts made his distaste for campaign finance regulations clear in his second term by leading the court’s decision that, in advance of the Citizens United decision, gutted the McCain-Feingold law’s effort to curb corporate-financed political commercials (Federal Election Commission v. Wisconsin Right to Life, 2007).
The court later struck down a separate part of the law, the so-called millionaire’s provision, that sought to level the playing field somewhat for candidates running against wealthy, self-financed opponents (Davis v. Federal Election Commission, 2008). Later this term, the court seems all but certain to strike down an Arizona law aimed at fortifying public campaign financing systems by increasing public subsidies for candidates running against high-spending opponents (Arizona Free Enterprise Club v. Bennett).
In his ruling, Cacheris anticipated that the Citizens United decision liberating corporations from a campaign spending ban similarly dooms a ban on direct contributions to candidates (United States v. Danielczyk). To do that, he had to explain away the Supreme Court’s decision only eight years ago reaffirming the ban on corporate campaign donations because of the risk of corruption (Federal Election Commission v. Beaumont, 2003.) In its decision to uphold a similar ban in a San Diego ordinance, the Ninth Circuit accurately noted that Citizens United expressly left the contribution ban untouched (Thalheimer v. San Diego).
The challenge to the individual insurance mandate in Obama’s health care law appeals to the conservative bloc’s instincts for limited government. It also harkens to Rehnquist Court decisions that limited Congress’s Commerce Clause powers, such as the 5-4 ruling to strike down a provision creating a federal cause of action for victims of gender-motivated violence (United States v. Morrison, 2000). But the opponents’ argument collides with the broader view of federal power in the Rehnquist Court’s later decision to elevate the federal ban on marijuana over a state law allowing noncommercial medical use of marijuana (Gonzales v. Raich, 2005).
After the Roberts Court’s burst of activism in 2007, Justice Stephen G. Breyer complained both from and off the bench about the majority’s lack of restraint and disregard for precedent. History may make the same assessment if the Roberts Court carries its conservative views too far in coming terms.
In particular, Chief Justice John G. Roberts Jr. needs to ask himself how he wants the Roberts Court remembered years from now. So far, the record is mixed on how far Roberts will carry the conservative views he brought with him to the court at the risk of exposing the court to criticism for right-wing legal engineering.
With 5-4 votes, the court has weakened reproductive rights for women (Gonzales v. Carhart, 2007) and narrowed enforcement of the exclusionary rule (Herring v. United States, 2009). More dramatically, the Court in 2010 freed corporations (and unions) from any limits on what they can spend in political campaigns (Citizens United v. FEC).
On the other hand, the court stopped short of prohibiting all racial diversity policies by local school districts (Parents Involved in Community Schools v. Seattle School District No. 1, 2007). And it caught itself right at the brink of declaring the landmark Voting Rights Act of 1965 unconstitutional. (North Austin Municipal Utility District No. 1 v. Holder). In the first case and probably in the second, however, it was Justice Anthony M. Kennedy, not Roberts, who stopped the court from a right-wing tear.
The court’s next two major tests of potential right-wing engineering were forming in lower courts last week: the constitutional challenge to President Obama’s health care reform and a new constitutional attack on campaign finance limits on corporations.
The federal appeals court in Atlanta on Wednesday (June 8) held the third appellate-level arguments in the partisan-inspired attack on the yet-to-be-implemented health care law. Opponents say Obama and Congress exceeded the federal government’s powers in requiring everyone to have health insurance and in imposing new Medicaid requirements on the states.
Meanwhile, a Reagan-appointed federal judge in Alexandria, Va., reaffirmed on Tuesday (June 7) his decision to hold unconstitutional the century-old ban on corporate campaign contributions to federal candidates. Judge James Cacheris ruled that the First Amendment gives corporations the right to make direct campaign contributions to candidates. Two days later, however, the federal appeals court in California became the second in two months to uphold local ordinances with similar bans on corporate campaign contributions.
On both issues, health care and campaign finance, there are precedents from history that should weigh in the Roberts Court’s mind when these issues reach the justices, possibly as early as its next term. The Lochner-era court carried freedom of contract too far in freeing corporations from some economic regulations. And the post-Taft court of the early 1930s discredited itself by striking down some of President Franklin D. Roosevelt’s New Deal programs to solve what were then the nation’s most pressing economic problems.
The Roberts Court conservatives are likely to approach both issues, however, with views and sympathies in line with the challengers. Roberts made his distaste for campaign finance regulations clear in his second term by leading the court’s decision that, in advance of the Citizens United decision, gutted the McCain-Feingold law’s effort to curb corporate-financed political commercials (Federal Election Commission v. Wisconsin Right to Life, 2007).
The court later struck down a separate part of the law, the so-called millionaire’s provision, that sought to level the playing field somewhat for candidates running against wealthy, self-financed opponents (Davis v. Federal Election Commission, 2008). Later this term, the court seems all but certain to strike down an Arizona law aimed at fortifying public campaign financing systems by increasing public subsidies for candidates running against high-spending opponents (Arizona Free Enterprise Club v. Bennett).
In his ruling, Cacheris anticipated that the Citizens United decision liberating corporations from a campaign spending ban similarly dooms a ban on direct contributions to candidates (United States v. Danielczyk). To do that, he had to explain away the Supreme Court’s decision only eight years ago reaffirming the ban on corporate campaign donations because of the risk of corruption (Federal Election Commission v. Beaumont, 2003.) In its decision to uphold a similar ban in a San Diego ordinance, the Ninth Circuit accurately noted that Citizens United expressly left the contribution ban untouched (Thalheimer v. San Diego).
The challenge to the individual insurance mandate in Obama’s health care law appeals to the conservative bloc’s instincts for limited government. It also harkens to Rehnquist Court decisions that limited Congress’s Commerce Clause powers, such as the 5-4 ruling to strike down a provision creating a federal cause of action for victims of gender-motivated violence (United States v. Morrison, 2000). But the opponents’ argument collides with the broader view of federal power in the Rehnquist Court’s later decision to elevate the federal ban on marijuana over a state law allowing noncommercial medical use of marijuana (Gonzales v. Raich, 2005).
After the Roberts Court’s burst of activism in 2007, Justice Stephen G. Breyer complained both from and off the bench about the majority’s lack of restraint and disregard for precedent. History may make the same assessment if the Roberts Court carries its conservative views too far in coming terms.
Sunday, June 5, 2011
Ashcroft Gets a Pass for Material-Witness Misuse
Six weeks after the 9/11 attacks, Attorney General John Ashcroft called a news conference to announce steps the Justice Department was taking “to protect the United States from the threat of terrorist aliens.” One part of the strategy, Ashcroft said, was to take “suspected terrorists off the street” by the “aggressive detention of lawbreakers and material witnesses.”
One of the material witnesses arrested and detained under this policy was Abdullah al-Kidd, a U.S. citizen, converted Muslim, family man, and former college football star. Al-Kidd was arrested at Dulles Airport on March 16, 2003, and over the next sixteen days handcuffed and shackled, strip-searched several times, and forced to sleep on a cement floor before a court ordered him released.
Even so, al-Kidd’s travel was limited for another 14 months. The arrest strained his relationships with friends and family. Eventually, he was divorced and — after an employer learned of the arrest — fired. He was never called as a witness nor charged with any offense.
Last week, the Supreme Court gave Ashcroft a pass and al-Kidd the back of its hand for his ordeal. Unanimously — with one justice recused — the court ruled that Ashcroft could not be held personally liable for the results of the policy he had so proudly proclaimed. Five of the justices went one step further to hold that government officials are free to use the material witness statute to arrest and detain U.S. citizens even if their real motive is to hold the individual in jail while they try to develop enough evidence for a real arrest.
The government had been keeping an eye on al-Kidd for a little over a year, just as it had been surveilling uncounted other Muslim and Arab Americans in a post-9/11 dragnet. FBI agents had their suspicions about al-Kidd, especially because of his associations with Sami Omar al-Hussayen, a Saudi and a fellow student at the University of Idaho.
The government got enough on al-Hussayen in February 2003 to charge him with visa fraud for allegedly working off campus — not permitted under a student visa — as a webmaster for the Islamic Assembly of North America. Al-Hussayen was later charged with — and then acquitted of — using the web site to provide “material support” for terrorism.
Al-Kidd had cooperated with the FBI in previous interviews, but in March 2003 agents applied for a warrant under the federal material-witness statute. The law allows the arrest of someone whose testimony is “material to a criminal proceeding . . . if it is shown that it may become impracticable to secure the presence of the person by subpoena.”
To make that showing, the FBI agents told the magistrate, incorrectly, that al-Kidd had just purchased a one-way ticket to Saudi Arabia. In fact, it was a round-trip ticket. The agents also failed to note al-Kidd’s previous cooperation with the agents. They heaped on insinuations about al-Kidd’s contacts with al-Hussayen and his associates, but did not indicate what testimony al-Kidd might have that would be “material” to the case against his fellow student.
Al-Kidd was freed of all restrictions after al-Hussayen’s trial ended in April 2004 – with no conviction. A year later, Al-Kidd sued government officials and agents from Ashcroft down for what his American Civil Liberties Union lawyers called his “pretextual” arrest and detention under the material-witness statute. Al-Kidd reached settlements with the lower-level agents and corrections officials. But Ashcroft moved to dismiss the suit against him, claiming both absolute immunity and “qualified immunity” — the doctrine that shields government officials from liability in the absence of a clearly established rule that the alleged conduct was unconstitutional.
From the start, the suit was a reach, but a federal district court judge and the Ninth U.S. Circuit Court of Appeals both rejected Ashcroft’s bid for immunity. In its ruling, the appeals court said that the Fourth Amendment prohibits pretextual arrests in the absence of probable cause of criminal wrongdoing.
It was clear from oral arguments on March 2 that none of the eight justices saw a clearly established rule that would negate Ashcroft’s claim of qualified immunity. (Elena Kagan was recused because she was solicitor general during earlier proceedings.) So the court’s May 31 decision in Ashcroft v. al-Kidd to kick out the suit against the former attorney general came as no surprise.
Justice Antonin Scalia’s opinion for five of the justices went further to give judicial endorsement to Ashcroft’s announced policy of what amounts to misuse of the material-witness statute. An objectively reasonable arrest, based on a validly obtained warrant, cannot be challenged, Scalia said, on the basis of an improper motive by government authorities.
Scalia’s opinion sloughed over the doubts about the warrant against al-Kidd and his harsh treatment in detention. Liberal justices – Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor – highlighted those points in partial concurrences that disagreed with the majority’s decision to reach the merits of al-Kidd’s claim. A fourth justice, Anthony M. Kennedy, voiced his own doubts about the use of the material-witness statute even while joining Scalia’s opinion.
Ginsburg closed her opinion by underlining the broader stakes in the case. Al-Kidd’s ordeal, she wrote, “is a grim reminder of the need to install safeguards against disrespect for human dignity, constraints that will control officialdom even in perilous times.”
One of the material witnesses arrested and detained under this policy was Abdullah al-Kidd, a U.S. citizen, converted Muslim, family man, and former college football star. Al-Kidd was arrested at Dulles Airport on March 16, 2003, and over the next sixteen days handcuffed and shackled, strip-searched several times, and forced to sleep on a cement floor before a court ordered him released.
Even so, al-Kidd’s travel was limited for another 14 months. The arrest strained his relationships with friends and family. Eventually, he was divorced and — after an employer learned of the arrest — fired. He was never called as a witness nor charged with any offense.
Last week, the Supreme Court gave Ashcroft a pass and al-Kidd the back of its hand for his ordeal. Unanimously — with one justice recused — the court ruled that Ashcroft could not be held personally liable for the results of the policy he had so proudly proclaimed. Five of the justices went one step further to hold that government officials are free to use the material witness statute to arrest and detain U.S. citizens even if their real motive is to hold the individual in jail while they try to develop enough evidence for a real arrest.
The government had been keeping an eye on al-Kidd for a little over a year, just as it had been surveilling uncounted other Muslim and Arab Americans in a post-9/11 dragnet. FBI agents had their suspicions about al-Kidd, especially because of his associations with Sami Omar al-Hussayen, a Saudi and a fellow student at the University of Idaho.
The government got enough on al-Hussayen in February 2003 to charge him with visa fraud for allegedly working off campus — not permitted under a student visa — as a webmaster for the Islamic Assembly of North America. Al-Hussayen was later charged with — and then acquitted of — using the web site to provide “material support” for terrorism.
Al-Kidd had cooperated with the FBI in previous interviews, but in March 2003 agents applied for a warrant under the federal material-witness statute. The law allows the arrest of someone whose testimony is “material to a criminal proceeding . . . if it is shown that it may become impracticable to secure the presence of the person by subpoena.”
To make that showing, the FBI agents told the magistrate, incorrectly, that al-Kidd had just purchased a one-way ticket to Saudi Arabia. In fact, it was a round-trip ticket. The agents also failed to note al-Kidd’s previous cooperation with the agents. They heaped on insinuations about al-Kidd’s contacts with al-Hussayen and his associates, but did not indicate what testimony al-Kidd might have that would be “material” to the case against his fellow student.
Al-Kidd was freed of all restrictions after al-Hussayen’s trial ended in April 2004 – with no conviction. A year later, Al-Kidd sued government officials and agents from Ashcroft down for what his American Civil Liberties Union lawyers called his “pretextual” arrest and detention under the material-witness statute. Al-Kidd reached settlements with the lower-level agents and corrections officials. But Ashcroft moved to dismiss the suit against him, claiming both absolute immunity and “qualified immunity” — the doctrine that shields government officials from liability in the absence of a clearly established rule that the alleged conduct was unconstitutional.
From the start, the suit was a reach, but a federal district court judge and the Ninth U.S. Circuit Court of Appeals both rejected Ashcroft’s bid for immunity. In its ruling, the appeals court said that the Fourth Amendment prohibits pretextual arrests in the absence of probable cause of criminal wrongdoing.
It was clear from oral arguments on March 2 that none of the eight justices saw a clearly established rule that would negate Ashcroft’s claim of qualified immunity. (Elena Kagan was recused because she was solicitor general during earlier proceedings.) So the court’s May 31 decision in Ashcroft v. al-Kidd to kick out the suit against the former attorney general came as no surprise.
Justice Antonin Scalia’s opinion for five of the justices went further to give judicial endorsement to Ashcroft’s announced policy of what amounts to misuse of the material-witness statute. An objectively reasonable arrest, based on a validly obtained warrant, cannot be challenged, Scalia said, on the basis of an improper motive by government authorities.
Scalia’s opinion sloughed over the doubts about the warrant against al-Kidd and his harsh treatment in detention. Liberal justices – Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor – highlighted those points in partial concurrences that disagreed with the majority’s decision to reach the merits of al-Kidd’s claim. A fourth justice, Anthony M. Kennedy, voiced his own doubts about the use of the material-witness statute even while joining Scalia’s opinion.
Ginsburg closed her opinion by underlining the broader stakes in the case. Al-Kidd’s ordeal, she wrote, “is a grim reminder of the need to install safeguards against disrespect for human dignity, constraints that will control officialdom even in perilous times.”
Tuesday, May 31, 2011
Confronting the 'Grim' Reality of California Prisons
The surprise in the Supreme Court’s ruling in the California prison case is not the decision by five justices to uphold an order requiring the release of about 30,000 prisoners over the next five years. The surprise comes from the votes of the four dissenters to leave the appalling conditions in the state’s prisons largely unaddressed.
The majority opinion in Brown v. Plata by Justice Anthony M. Kennedy, a Californian, paints a damning portrait of the consequences of the state’s housing as many as 156,000 inmates in 33 facilities with a designed capacity of only 80,000. The crowding is not merely uncomfortable, but it is surely that: prisoners sleeping in triple bunk beds; 200 prisoners living in a converted gymnasium; 54 inmates sharing a single toilet.
More to the point, the overcrowding overwhelms the prison system’s capacity to provide medical and mental health care to inmates with deadly consequences. Kennedy notes some of the victims of medical non-care. One inmate died of testicular cancer after doctors failed to diagnose the condition despite the inmate’s complaining of testicular pain for 17 months. Another inmate, suffering from severe abdominal pain, died after a five-week delay in being referred to a specialist. Another prisoner, suffering from extreme chest pain, died after eight hours passed without an evaluation by a specialist. Another inmate died of renal failure after being given medications that actually exacerbated his condition.
The deaths are not merely anecdotal. Statistics for the two years before the trial of the case in 2008 showed that 66 inmates succumbed to “preventable deaths” in 2006, 68 in 2007 — one preventable death every five to six days in both years. The number was “extremely high,” according to testimony by the former medical director for Illinois prisons.
The deaths included suicides at nearly double the average rate for prisons. The court-appointed special master concluded that nearly three-fourths of the suicides resulted from inadequate assessment, treatment or prevention — and, in that sense, were “most probably foreseeable and/or preventable.” By 2010, there was no sign of improvement in suicide prevention.
The picture of mental health care was especially damning, with wait times for care ranging as high as 12 months. Suicidal inmates were sometimes held for prolonged periods in a telephone-booth sized cage without toilets. One inmate, unresponsive and nearly catatonic, was held in such a cage for 24 hours, standing in his own urine, because, according to prison officials, they “had no place to put him.”
Routine medical care is routinely inadequate. Inmates with urgent care requests are seen only after a delay of two weeks or longer. When one prison was checked, only one-third of 300 inmates requesting urgent care had any appointment scheduled at all. Inadequate medical care in overcrowded facilities resulted, inevitably, in a high rate of infectious disease.
The inadequacies in medical care result from inadequate facilities and inadequate staffing. Medical staff work out of converted storage rooms, closets, and bathrooms. The state has not budgeted for sufficient medical staff, but fell short even of its budgeted understaffing: a 20 percent vacancy rate for surgeons, a 54 percent vacancy rate for psychiatrists.
“The medical and mental health care provided by California’s prisons,” Kennedy concluded, “falls below the standard of decency that inheres in the Eighth Amendment. The extensive and ongoing constitutional violation requires a remedy, and a remedy will not be achieved without a reduction in overcrowding.”
The dissenting justices either minimize or wish away these problems. Instead of a prisoner-release order, Justice Samuel A. Alito Jr. says the prison system should hire more medical staff, get more supplies and equipment, keep better records, and improve sanitary procedures — as though the prison system had not tried. Chief Justice John G. Roberts Jr. joined Alito’s opinion.
In his dissent, Justice Antonin Scalia, joined by Clarence Thomas, suggests that the only inmates entitled to be released are those shown to be currently suffering from inadequate medical care. The remedy overlooks the inevitable delay in documenting and adjudicating the level of undertreatment needed to be entitled to release. More broadly, as Kennedy notes, Scalia’s solution overlooks the fact that healthy inmates are not “remote bystanders” in the overtaxed medical care system, but the system’s “next potential victims.”
The dissenting justices are willing to accept half measures because they fear the public safety consequences of moving 30,000 inmates out of the prison system. But they exaggerate the fears. First, many of the inmates will now be sent to county jails, not put out on the streets. Second, overcrowding can also be reduced by not returning parole violators to prisons. Third, expansion of good-time credits and diversion of low-risk offenders to community programs would have little if any impact on public safety.
Even under the terms of the lower court’s order in the case, California prisons would still be housing 37.5 percent more inmates than they were designed to hold. The current overcrowding results from Californians' law-and-order binge — think of the state’s “three strikes” law — combined with their refusal to pay for the facilities and services needed to provide inmates with medical and mental health care.
In his dissent, Alito said he feared a “grim” result from the prisoner-release order. The Supreme Court majority was right to be more concerned with doing something about the grim present.
The majority opinion in Brown v. Plata by Justice Anthony M. Kennedy, a Californian, paints a damning portrait of the consequences of the state’s housing as many as 156,000 inmates in 33 facilities with a designed capacity of only 80,000. The crowding is not merely uncomfortable, but it is surely that: prisoners sleeping in triple bunk beds; 200 prisoners living in a converted gymnasium; 54 inmates sharing a single toilet.
More to the point, the overcrowding overwhelms the prison system’s capacity to provide medical and mental health care to inmates with deadly consequences. Kennedy notes some of the victims of medical non-care. One inmate died of testicular cancer after doctors failed to diagnose the condition despite the inmate’s complaining of testicular pain for 17 months. Another inmate, suffering from severe abdominal pain, died after a five-week delay in being referred to a specialist. Another prisoner, suffering from extreme chest pain, died after eight hours passed without an evaluation by a specialist. Another inmate died of renal failure after being given medications that actually exacerbated his condition.
The deaths are not merely anecdotal. Statistics for the two years before the trial of the case in 2008 showed that 66 inmates succumbed to “preventable deaths” in 2006, 68 in 2007 — one preventable death every five to six days in both years. The number was “extremely high,” according to testimony by the former medical director for Illinois prisons.
The deaths included suicides at nearly double the average rate for prisons. The court-appointed special master concluded that nearly three-fourths of the suicides resulted from inadequate assessment, treatment or prevention — and, in that sense, were “most probably foreseeable and/or preventable.” By 2010, there was no sign of improvement in suicide prevention.
The picture of mental health care was especially damning, with wait times for care ranging as high as 12 months. Suicidal inmates were sometimes held for prolonged periods in a telephone-booth sized cage without toilets. One inmate, unresponsive and nearly catatonic, was held in such a cage for 24 hours, standing in his own urine, because, according to prison officials, they “had no place to put him.”
Routine medical care is routinely inadequate. Inmates with urgent care requests are seen only after a delay of two weeks or longer. When one prison was checked, only one-third of 300 inmates requesting urgent care had any appointment scheduled at all. Inadequate medical care in overcrowded facilities resulted, inevitably, in a high rate of infectious disease.
The inadequacies in medical care result from inadequate facilities and inadequate staffing. Medical staff work out of converted storage rooms, closets, and bathrooms. The state has not budgeted for sufficient medical staff, but fell short even of its budgeted understaffing: a 20 percent vacancy rate for surgeons, a 54 percent vacancy rate for psychiatrists.
“The medical and mental health care provided by California’s prisons,” Kennedy concluded, “falls below the standard of decency that inheres in the Eighth Amendment. The extensive and ongoing constitutional violation requires a remedy, and a remedy will not be achieved without a reduction in overcrowding.”
The dissenting justices either minimize or wish away these problems. Instead of a prisoner-release order, Justice Samuel A. Alito Jr. says the prison system should hire more medical staff, get more supplies and equipment, keep better records, and improve sanitary procedures — as though the prison system had not tried. Chief Justice John G. Roberts Jr. joined Alito’s opinion.
In his dissent, Justice Antonin Scalia, joined by Clarence Thomas, suggests that the only inmates entitled to be released are those shown to be currently suffering from inadequate medical care. The remedy overlooks the inevitable delay in documenting and adjudicating the level of undertreatment needed to be entitled to release. More broadly, as Kennedy notes, Scalia’s solution overlooks the fact that healthy inmates are not “remote bystanders” in the overtaxed medical care system, but the system’s “next potential victims.”
The dissenting justices are willing to accept half measures because they fear the public safety consequences of moving 30,000 inmates out of the prison system. But they exaggerate the fears. First, many of the inmates will now be sent to county jails, not put out on the streets. Second, overcrowding can also be reduced by not returning parole violators to prisons. Third, expansion of good-time credits and diversion of low-risk offenders to community programs would have little if any impact on public safety.
Even under the terms of the lower court’s order in the case, California prisons would still be housing 37.5 percent more inmates than they were designed to hold. The current overcrowding results from Californians' law-and-order binge — think of the state’s “three strikes” law — combined with their refusal to pay for the facilities and services needed to provide inmates with medical and mental health care.
In his dissent, Alito said he feared a “grim” result from the prisoner-release order. The Supreme Court majority was right to be more concerned with doing something about the grim present.
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