Monday, August 29, 2011
Making Eyewitness Testimony More Reliable
James Womble brought in the new year in 2003 by drinking and smoking crack cocaine for several hours with his girlfriend and a friend, Rodney Harper. In the early morning hours, an acquaintance, George Clark, forced his way into the apartment along with another man to collect money that Harper owed him.
Clark and Harper argued in a back room while the stranger allegedly held Womble at gunpoint in a dimly lit hallway. From the hallway, Womble heard the gunshot that left his friend Harper dead 10 days later. Clark and the stranger left after Clark warned Womble, “Don’t rat me out.”
Womble eventually led investigators to Clark, who named Larry Henderson as his accomplice. Womble identified Henderson from an array of eight photos, but only after the investigating officer on the case overcame Womble’s professed uncertainty by telling him, “Just do what you have to do, and we’ll be out of here.”
At trial — in a scene reminiscent of courtroom dramas both real and fictional — Womble was unshakable in identifying Henderson as his assailant. But in a landmark decision last week [Aug. 24], the New Jersey Supreme Court used Womble’s doubt-strewn identification to order sweeping new changes in the state’s court system to control the use of often unreliable eyewitness testimony.
The New Jersey court’s unanimous ruling in State v. Henderson will make it easier for defendants to challenge and possibly suppress eyewitness testimony as unreliable. In addition, it will require stronger instructions to jurors about the possible unreliability of eyewitness testimony at the end of or, if needed, during trial.
Eyewitness testimony is as powerful as it is — in the Supreme Court’s phrasing — “notoriously unreliable.” In one recent experiment, 500 store clerks asked to identify a customer from an array of photos within two days of having seen him were almost as likely to make an incorrect as a correct identification. And twice as many clerks made a wrong identification as those who acknowledged uncertainty.
The doubts about eyewitness testimony indicated by a host of similar behavioral experiments are confirmed in real life in the U.S. justice system. Out of 250 wrongful convictions uncovered through DNA evidence, 190 resulted from what was belatedly recognized as faulty eyewitness testimony, according to a compilation by Brandon Garrett, a law professor at the University of Virginia, in his book Convicting the Innocent. “It is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country,” Chief Justice Stuart Rabner wrote in the New Jersey ruling last week.
The U.S. Supreme Court has adopted limited safeguards against eyewitness error. The court in 1967 required counsel to be present at lineups conducted after a defendant’s indictment, but five years later all but nullified the decision by refusing to require counsel at the far more frequent pre-indictment lineups (United States v. Wade, Kirby v. Illinois). In 1977, the court refused to automatically bar identifications tainted by “suggestive” procedures.
The court in Manson v. Brathwaite ruled that defendants must be allowed to challenge identifications from police lineups, “showups,” or photo arrays. But the justices required suppression of an identification only if the defendant could show “a very substantial likelihood of irreparable misidentification.”
The New Jersey court’s ruling leaves that demanding standard in place, but gives defendants a better chance to meet it. As applied, the Supreme Court’s rulings require courts to consider whether police procedures were “impermissibly suggestive” but not to look at other circumstances that cast doubt on an identification. And testimony can be used if the witness appears to be reliable and sticks to an identification.
As the New Jersey court points out, that approach effectively encourages police misconduct. Suggestive procedures such as the officer’s nudge to Womble in Henderson’s case will often make a witness certain of an identification that, in reality, is riddled with doubt. “Courts are encouraged to admit identifications,” Rabner explained, “that have been tainted by the very suggestive practices the test aims to deter.”
The New Jersey court’s decision will undoubtedly be viewed by many as judicial activism. Rabner explained the decision as an exercise of the court’s supervisory authority over rules of evidence in the state court system.
To its credit, New Jersey has rules aimed at limiting suggestive police procedures. Womble was given written instructions free of any hint or pressure to make an identification. The state attorney general’s office has guidelines that require identification procedures to be administered by someone other than the investigating officer. As in Henderson’s case, the guidelines are sometimes violated.
Henderson is now out on parole after serving six years of a 15-year sentence for his conviction on a reduced charge of reckless manslaughter. The ruling gives him a new chance to suppress Womble’s identification and possibly overturn the conviction. The prosecution’s only other evidence was Henderson’s own statement acknowledging his presence but denying any participation in the shooting.
The U.S. Supreme Court will also consider the use of eyewitness testimony in a case, Perry v. New Hampshire, set for argument in November. But the issue is narrow: whether the “impermissibly suggestive” rule applies to an identification made by a witness before the police investigation. And the Roberts Court majority is hardly inclined to establish safeguards to protect defendants’ rights. But all the justices ought to have an interest in ensuring the reliability of testimony used in criminal cases. That interest is less than well served by the current rules on eyewitness identifications.
Monday, August 15, 2011
Roberts Court Closing Courthouse Doors for Many
When the Supreme Court adjourned for its summer recess last year, the court’s conservative majority was under fire for having opened the floodgates to unlimited political spending by corporations. The ruling in the Citizens United case seemed to many emblematic of the Roberts Court’s undue solicitude for the rights and interests of corporations.
This year, the justices left Washington with the court’s conservative majority under fire again for rulings that benefited business interests. The Roberts Court was seen by many as having closed the courthouse doors to ordinary Americans seeking justice for wrongs done to them in the workplace or marketplace.
“We take so seriously in this country the notion that any person with a claim should have his or her day in court,” said Erwin Chemerinsky, the liberal dean of the University of California-Irvine Law School. “But a majority of the Supreme Court doesn’t seem to believe it.”
Far from denying the accusation, many of the court’s admirers acknowledge that the conservative majority is deeply skeptical of litigation. The Roberts Court “sees the court system as being overused and misused by whoever’s invoking it,” says Tom Goldstein, Supreme Court advocate and founder of SCOTUSBlog.
“The Supreme Court is not going to expand existing precedents to allow more litigation,” says Jonathan Adler, a conservative constitutional law expert at Case Western Reserve University School of Law. “You see that across a wide range of areas.”
As prime examples, the court’s critics cite the two headline-making decisions that will make it harder for plaintiffs to mount broad legal attacks against discrimination in the workplace or corporate fraud in the marketplace. Both decisions — gutting the big sex discrimination suit against Wal-Mart and barring a class action by cell phone customers against AT&T — came on 5-4 votes that pitted the court’s conservative majority against the liberal bloc.
A review of the full term confirms Adler’s point that the court’s aversion to litigation runs across many areas. The victims of the court’s attitude come from all walks of life. A blue-collar worker in New Jersey injured on the job by an allegedly defective machine is told he must sue the manufacturer in England. Women in Louisiana and Minnesota suffering from a debilitating side effect of a prescription medication are blocked from suing the drug makers. A Louisiana man wrongfully convicted of murder because of prosecutorial misconduct loses his bid to hold the district attorney’s office liable
Prison inmates will not be allowed to recover damages for violations of their religious rights. Anyone detained by the government using the material witness statute as a pretext cannot recover for loss of liberty. Taxpayers will find it harder to challenge government tax policies that breach the separation of church and state.
The cases that reach the Supreme Court are rarely open and shut, so there are two sides to each of these cases. Some turn on dissection of federal statutes, others on application of Supreme Court precedents. Some are by 5-4 votes, others by a broader majority. But they share a common theme. The Roberts Court sees no need to read laws and interpret past decisions when possible to open the courthouse door and assure plaintiffs a viable path to legal remedy.
The ruling in Wal-Mart Stores, Inc. v. Dukes raises the burden on plaintiffs in a job discrimination case to produce evidence of a company’s wrongdoing at a preliminary stage or pursue the suit through individual complaints instead of a class action. The decision in AT&T v. Concepcion gives businesses a roadmap to enforce arbitration clauses in preprinted consumer contracts that consign a defrauded customer to individual instead of classwide arbitration. The majority in each case was indifferent to the likelihood that many workers or consumers would never be able to take their claims to court.
The injured worker in J. McIntyre Machinery, Ltd. v. Nicastro was blocked from suing in New Jersey by a 6-3 majority blind to the English manufacturer’s business-seeking in the United States. The 5-4 majority in PLIVA, Inc. v. Mensing read federal drug regulations so woodenly as to exempt a generic drug manufacturer from any ongoing duty to warn users of side effects. The 5-4 majority in Connick v. Thompson rejected evidence from the wrongfully convicted plaintiff that disregard of an important constitutional rule was standard practice in the Orleans Parish district attorney’s office.
In Sossamon v. Texas, the 6-2 majority held that a federal law providing state prisoners “appropriate relief” against state governments for violations of their religious rights does not allow monetary damages as one of the possible remedies. A five-justice majority in Ashcroft v. Al-Kidd gave the government carte blanche to use the material witness statute to jail someone when there is not enough evidence for an arrest. In Arizona Christian School Tuition Organization v. Winn, the 5-4 majority repudiated a line of decisions allowing taxpayers legal standing to challenge tax policies as violations of the Establishment Clause.
The court’s admirers find these rulings sound examples of judicial restraint. But the court-made rules created in these decisions also reflect a conscious policy preference that is at tension with the inscription above the Supreme Court’s doors: Equal Justice Under Law.
This year, the justices left Washington with the court’s conservative majority under fire again for rulings that benefited business interests. The Roberts Court was seen by many as having closed the courthouse doors to ordinary Americans seeking justice for wrongs done to them in the workplace or marketplace.
“We take so seriously in this country the notion that any person with a claim should have his or her day in court,” said Erwin Chemerinsky, the liberal dean of the University of California-Irvine Law School. “But a majority of the Supreme Court doesn’t seem to believe it.”
Far from denying the accusation, many of the court’s admirers acknowledge that the conservative majority is deeply skeptical of litigation. The Roberts Court “sees the court system as being overused and misused by whoever’s invoking it,” says Tom Goldstein, Supreme Court advocate and founder of SCOTUSBlog.
“The Supreme Court is not going to expand existing precedents to allow more litigation,” says Jonathan Adler, a conservative constitutional law expert at Case Western Reserve University School of Law. “You see that across a wide range of areas.”
As prime examples, the court’s critics cite the two headline-making decisions that will make it harder for plaintiffs to mount broad legal attacks against discrimination in the workplace or corporate fraud in the marketplace. Both decisions — gutting the big sex discrimination suit against Wal-Mart and barring a class action by cell phone customers against AT&T — came on 5-4 votes that pitted the court’s conservative majority against the liberal bloc.
A review of the full term confirms Adler’s point that the court’s aversion to litigation runs across many areas. The victims of the court’s attitude come from all walks of life. A blue-collar worker in New Jersey injured on the job by an allegedly defective machine is told he must sue the manufacturer in England. Women in Louisiana and Minnesota suffering from a debilitating side effect of a prescription medication are blocked from suing the drug makers. A Louisiana man wrongfully convicted of murder because of prosecutorial misconduct loses his bid to hold the district attorney’s office liable
Prison inmates will not be allowed to recover damages for violations of their religious rights. Anyone detained by the government using the material witness statute as a pretext cannot recover for loss of liberty. Taxpayers will find it harder to challenge government tax policies that breach the separation of church and state.
The cases that reach the Supreme Court are rarely open and shut, so there are two sides to each of these cases. Some turn on dissection of federal statutes, others on application of Supreme Court precedents. Some are by 5-4 votes, others by a broader majority. But they share a common theme. The Roberts Court sees no need to read laws and interpret past decisions when possible to open the courthouse door and assure plaintiffs a viable path to legal remedy.
The ruling in Wal-Mart Stores, Inc. v. Dukes raises the burden on plaintiffs in a job discrimination case to produce evidence of a company’s wrongdoing at a preliminary stage or pursue the suit through individual complaints instead of a class action. The decision in AT&T v. Concepcion gives businesses a roadmap to enforce arbitration clauses in preprinted consumer contracts that consign a defrauded customer to individual instead of classwide arbitration. The majority in each case was indifferent to the likelihood that many workers or consumers would never be able to take their claims to court.
The injured worker in J. McIntyre Machinery, Ltd. v. Nicastro was blocked from suing in New Jersey by a 6-3 majority blind to the English manufacturer’s business-seeking in the United States. The 5-4 majority in PLIVA, Inc. v. Mensing read federal drug regulations so woodenly as to exempt a generic drug manufacturer from any ongoing duty to warn users of side effects. The 5-4 majority in Connick v. Thompson rejected evidence from the wrongfully convicted plaintiff that disregard of an important constitutional rule was standard practice in the Orleans Parish district attorney’s office.
In Sossamon v. Texas, the 6-2 majority held that a federal law providing state prisoners “appropriate relief” against state governments for violations of their religious rights does not allow monetary damages as one of the possible remedies. A five-justice majority in Ashcroft v. Al-Kidd gave the government carte blanche to use the material witness statute to jail someone when there is not enough evidence for an arrest. In Arizona Christian School Tuition Organization v. Winn, the 5-4 majority repudiated a line of decisions allowing taxpayers legal standing to challenge tax policies as violations of the Establishment Clause.
The court’s admirers find these rulings sound examples of judicial restraint. But the court-made rules created in these decisions also reflect a conscious policy preference that is at tension with the inscription above the Supreme Court’s doors: Equal Justice Under Law.
Tuesday, August 9, 2011
Fighting for Puerto Ricans' Voting Rights
Gregorio Igartua voted in the 1976 presidential election, but not in any federal elections since then. But it’s not for lack of trying.
Igartua, a lawyer in Puerto Rico, has waged a two-decade legal battle to try to win voting rights for himself and the rest of the island’s 4 million U.S. citizens. He voted in Virginia in 1976 while going to law school, but once back in Puerto Rico he lost the right to vote for president or for a voting member of Congress.
Once, in 2000, Igartua got close. A federal judge in Puerto Rico ruled (in a case now called Igartua II) that Puerto Ricans could vote for the U.S. president. Two million ballots were printed for the Bush-Gore race. But five days before the election, the First U.S. Circuit Court of Appeals reversed the ruling. The ballots, Igartua recalls, were destroyed.
Igartua’s latest setback came last week [Aug. 4] when the Boston-based First Circuit refused on a 3-3 vote to reconsider a three-judge panel’s decision in November rejecting his suit to win Puerto Ricans the right to elect voting members of the U.S. House of Representatives. A motion for an en banc rehearing before the full court requires a majority vote.
For some of the judges on the appeals court at least, this is a very simple case. The Constitution provides that the House of Representatives “shall be composed of members chosen . . . by the people of the several states” and the Senate of “two senators from each state.” Puerto Rico is not a state.
“The text of the Constitution does not permit plaintiffs to vote for a member of the U.S. House of Representatives,” Chief Judge Sandra Lynch wrote in the Nov. 24 decision in what has to be called Igartua IV. “It cannot, then, be unconstitutional to conclude the residents of Puerto Rico have no right to vote for Representatives.”
Eight months later, Lynch vented a little impatience as she and colleagues Michael Boudin and Jeffrey Howard voted to reject Igartua’s motion for rehearing. The issues, including a claim brought under the International Covenant on Civil and Political Rights, had been fully considered — and rejected — six years earlier, Lynch wrote.
“Our en banc decision in Igartua III controls this case,” Lynch wrote in a five-paragraph opinion. She noted that a federal appellate rule “disfavors . . . continual en banc reviews to re-examine already settled issues.”
Despite the putdown, Igartua takes heart from the tie vote. “Every time there is an opinion, more evidence arises saying that I am right,” he says.
The strongest support for Puerto Rican voting rights comes from Judge Juan Torruella, the lone Puerto Rican on the court. “This is a fundamental constitutional question that will not go away notwithstanding this court’s repeated effort to suppress these issues,” Torruella wrote in November.
More significantly, Judge Kermit Lipez, a Clinton appointee, wrote in November and again last week that he has changed his views on the issue since the en banc ruling in 2005. After describing voting rights for Puerto Ricans as “a compelling legal problem,” Lipez said in November that he is now convinced that the Constitution “may permit their enfranchisement” under some other source of law.
Lipez joined the 2-1 decision rejecting Igartua’s suit then, but called for reconsideration by the full court — and voted in favor of rehearing last week. A third judge, O. Rogeriee Thompson, joined in voting for rehearing — “more briefly but no less vehemently,” he said, than Torruella and Lipez.
Based on population, Puerto Rico would be entitled to five House members instead of the non-voting “resident commissioner” who now represents the commonwealth’s interests in Washington. The 600,000 people who live in Washington, D.C., can empathize. The District of Columbia is represented in Congress by a non-voting “delegate.” But the Twenty-Third Amendment, ratified in 1961, did grant Washingtonians the franchise in presidential elections.
The majority judges note the option of a constitutional amendment as the prescribed route for Puerto Ricans on this issue. But turning to the Constitution ignores Torruella’s main point. The framers could never have contemplated the United States exercising sovereignty over a territory for a full century — and treating it for most purposes as a state — without granting constitutional rights. In any event, Puerto Ricans are shut out of the amendment process that the court’s majority points to as their remedy.
Still, Igartua and the judges siding with him face significant obstacles. Puerto Ricans have hurt their cause by rejecting full statehood, most recently in 1998, when a bare majority voted for “none of the above” (independence, commonwealth, or statehood). The appeal to the international covenant on political rights collides with the Senate’s formal declaration that the pact is not self-executing and with the Roberts Court’s recent refusal to give binding effect to other treaties.
Igartua’s next stop is the Supreme Court, which he notes now includes a justice of Puerto Rican background: Sonia Sotomayor. But the road is uphill. When the Supreme Court was asked to grant Washington, D.C., voting representation in Congress in 2000, the justices turned the case down in a summary ruling without written opinion or dissenting vote.
Igartua, a lawyer in Puerto Rico, has waged a two-decade legal battle to try to win voting rights for himself and the rest of the island’s 4 million U.S. citizens. He voted in Virginia in 1976 while going to law school, but once back in Puerto Rico he lost the right to vote for president or for a voting member of Congress.
Once, in 2000, Igartua got close. A federal judge in Puerto Rico ruled (in a case now called Igartua II) that Puerto Ricans could vote for the U.S. president. Two million ballots were printed for the Bush-Gore race. But five days before the election, the First U.S. Circuit Court of Appeals reversed the ruling. The ballots, Igartua recalls, were destroyed.
Igartua’s latest setback came last week [Aug. 4] when the Boston-based First Circuit refused on a 3-3 vote to reconsider a three-judge panel’s decision in November rejecting his suit to win Puerto Ricans the right to elect voting members of the U.S. House of Representatives. A motion for an en banc rehearing before the full court requires a majority vote.
For some of the judges on the appeals court at least, this is a very simple case. The Constitution provides that the House of Representatives “shall be composed of members chosen . . . by the people of the several states” and the Senate of “two senators from each state.” Puerto Rico is not a state.
“The text of the Constitution does not permit plaintiffs to vote for a member of the U.S. House of Representatives,” Chief Judge Sandra Lynch wrote in the Nov. 24 decision in what has to be called Igartua IV. “It cannot, then, be unconstitutional to conclude the residents of Puerto Rico have no right to vote for Representatives.”
Eight months later, Lynch vented a little impatience as she and colleagues Michael Boudin and Jeffrey Howard voted to reject Igartua’s motion for rehearing. The issues, including a claim brought under the International Covenant on Civil and Political Rights, had been fully considered — and rejected — six years earlier, Lynch wrote.
“Our en banc decision in Igartua III controls this case,” Lynch wrote in a five-paragraph opinion. She noted that a federal appellate rule “disfavors . . . continual en banc reviews to re-examine already settled issues.”
Despite the putdown, Igartua takes heart from the tie vote. “Every time there is an opinion, more evidence arises saying that I am right,” he says.
The strongest support for Puerto Rican voting rights comes from Judge Juan Torruella, the lone Puerto Rican on the court. “This is a fundamental constitutional question that will not go away notwithstanding this court’s repeated effort to suppress these issues,” Torruella wrote in November.
More significantly, Judge Kermit Lipez, a Clinton appointee, wrote in November and again last week that he has changed his views on the issue since the en banc ruling in 2005. After describing voting rights for Puerto Ricans as “a compelling legal problem,” Lipez said in November that he is now convinced that the Constitution “may permit their enfranchisement” under some other source of law.
Lipez joined the 2-1 decision rejecting Igartua’s suit then, but called for reconsideration by the full court — and voted in favor of rehearing last week. A third judge, O. Rogeriee Thompson, joined in voting for rehearing — “more briefly but no less vehemently,” he said, than Torruella and Lipez.
Based on population, Puerto Rico would be entitled to five House members instead of the non-voting “resident commissioner” who now represents the commonwealth’s interests in Washington. The 600,000 people who live in Washington, D.C., can empathize. The District of Columbia is represented in Congress by a non-voting “delegate.” But the Twenty-Third Amendment, ratified in 1961, did grant Washingtonians the franchise in presidential elections.
The majority judges note the option of a constitutional amendment as the prescribed route for Puerto Ricans on this issue. But turning to the Constitution ignores Torruella’s main point. The framers could never have contemplated the United States exercising sovereignty over a territory for a full century — and treating it for most purposes as a state — without granting constitutional rights. In any event, Puerto Ricans are shut out of the amendment process that the court’s majority points to as their remedy.
Still, Igartua and the judges siding with him face significant obstacles. Puerto Ricans have hurt their cause by rejecting full statehood, most recently in 1998, when a bare majority voted for “none of the above” (independence, commonwealth, or statehood). The appeal to the international covenant on political rights collides with the Senate’s formal declaration that the pact is not self-executing and with the Roberts Court’s recent refusal to give binding effect to other treaties.
Igartua’s next stop is the Supreme Court, which he notes now includes a justice of Puerto Rican background: Sonia Sotomayor. But the road is uphill. When the Supreme Court was asked to grant Washington, D.C., voting representation in Congress in 2000, the justices turned the case down in a summary ruling without written opinion or dissenting vote.
Tuesday, July 19, 2011
Roberts' Ill-Informed Attack on Legal Scholarship
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.
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.
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.
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