The organizers of the independent political committee Western Tradition Partnership, Inc., made no secret of the advantages to likeminded donors in Montana who might want to keep their contributions under wraps. “There’s no limit to how much you can give,” the organizers promised in a promotional mailing two years ago, despite Montana’s concededly “strict limits” on political donations.
The mailing offered the opportunity not only for unlimited contributions but also for unlimited privacy. “We’re not required to report the name or the amount of any contribution that we receive,” the mailer continued. “So, if you decide to support this program, no politician, no bureaucrat, and no radical environmentalist will ever know you helped make this program possible.”
The justices of the Montana Supreme Court saw the incorporated Colorado-based group’s advertised availability as a conduit for anonymous political spending as a threat to the political marketplace not to mention the state’s campaign finance laws. So, in a 5-2 decision, the court ruled on Dec. 30 that Western Tradition Partnership, along with another corporate-organized group, the Montana Shooting Sports Association, and a small drywall company, Champion Painting, were subject to the state’s century-old ban on corporate spending in political campaigns.
The Montana justices were fully aware of the U.S. Supreme Court’s Citizens United decision in 2010, some months before Western Tradition Partnership’s mailing. In a bitterly divided 5-4 decision, the Roberts Court’s conservative majority established a First Amendment right to unlimited political spending by corporations (and labor unions) in federal elections. But Montana’s law survived, the state court’s majority ruled, because the state’s history with corrupt corporate spending — think: Anaconda Copper — gave Montana a “compelling interest” in keeping corporations out of state campaigns.
The case is now pending at the U.S. Supreme Court, which granted a stay on Feb. 17 as requested by the renamed American Tradition Partnership (ATP). Lawyers for ATP, led by the longtime foe of campaign finance regulation James Bopp, accused the Montana court of “a blatant disregard of its duty to follow” U.S. Supreme Court decisions.
The stay in American Tradition Partnership, Inc. v. Bullock, 11A762, was issued on Feb. 17 without recorded dissent. But in a one-paragraph statement, two of the dissenting justices in Citizens United envisioned using the case as a vehicle for re-examining the earlier ruling.
“Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n [citation omitted] make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption,’” Justice Ruth Bader Ginsburg wrote, quoting from the majority opinion. “A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.”
Even so, Ginsburg said she was voting to grant the stay “[b]ecause lower courts are bound to follow this Court’s decisions until they are withdrawn or modified.” Justice Stephen G. Breyer joined the statement.
A waggish Court watcher might say that critics hoping for a reversal of Citizens United with the ink on the ruling barely dry have two chances: slim and none. The Court decided the case after extensive briefing and extended arguments with full awareness of the clashing values. The ruling represented the culmination of a series of steps carefully orchestrated by Chief Justice John G. Roberts Jr. to widen the scope for political speech at the expense of campaign finance laws. And it represented a vindication for Justice Anthony M. Kennedy, the author of the majority opinion, who had dissented two decades earlier when the Court upheld bans on corporate spending in political races.
Still, no less an observer than Linda Greenhouse, the now semi-retired New York Times Supreme Court watcher, acknowledged in the Times’s Opinionator blog that the Ginsburg-Breyer demarche gave her pause in her skepticism. Greenhouse credits Ginsburg and Breyer with inside-the-Court savvy and notes that their statement may at least “keep the public conversation going.”
Greenhouse notes as a possible historical precedent, the FDR-era Court’s sudden about-face in the so-called Flag Salute Cases. Within only three years, the Court went in 1940 from 8-1 approval of laws requiring public school students to salute the flag to a 6-3 decision in 1943 striking down such laws as free-speech violations. The shift came about partly because of two new justices, but primarily because of the adverse reaction to the earlier ruling among opinion leaders and the public at large.
The Flag Salute Cases, however, are the exception that proves the rule. None of the other reversals in the Court history — think: Brown v. Board of Education or Lawrence v. Texas — came about without a substantial passage of time or at least a critical change in personnel on a closely divided Court.
Even so, the 2012 presidential campaign gives pause. The outsized role being played by independent Super PACs, fortified by corporate spending made possible by Citizens United, is evoking the same kind of negative reaction that the first of the Flag Salute Cases engendered. The Roberts majority has the votes to summarily reverse the Montana court’s decision without full briefing and argument. But justices open to the views of their colleagues — as Roberts promised in his confirmation he would be — ought to welcome the opportunity for a full reconsideration of the issues raised.
Sunday, February 26, 2012
Monday, February 13, 2012
In Prop 8 Case, Roberts Would Have Key Role
The effort to dismantle racial segregation in public schools did not begin with Linda Brown in Topeka, Kansas. It began in earnest two decades earlier with a litigation strategy crafted by the future Supreme Court justice, Thurgood Marshall, that first took on segregated state law schools and then mounted attacks on segregation in school districts in several southern and border states.
The battle to gain marriage rights for gay men and lesbians began in earnest two decades ago with litigation by three same-sex couples in Hawaii. They won an interim victory only to see it reversed by the state’s voters and then used to generate a backlash nationwide.
As with the campaign for racial justice, these first two decades have seen more setbacks than advances for marriage equality. But the federal appeals court’s decision last week [Feb. 7] striking down California’s anti-gay marriage initiative Proposition 8 marks a significant turning point. And the ruling could be decisive if its logic is accepted by the U.S. Supreme Court.
On the surface, the ruling by the Ninth U.S. Circuit Court of Appeals in Perry v. Brown is narrow and limited. At trial, U.S. District Court Judge Vaughn Walker ruled definitively that denying marriage rights to same-sex couples violates both the Due Process and Equal Protection Clauses of the U.S. Constitution. On appeal, the three-judge panel led by the indomitable liberal Stephen Reinhardt declined to reach that ultimate question.
Instead, Reinhardt wrote for a 2-1 majority in holding that the November 2008 ballot measure violated equal protection principles because it withdrew marriage rights recognized by the California Supreme Court only six months earlier for no reason other than “to lessen the status and human dignity of gays and lesbians in California.”
That holding applies only to California. No other state has first granted and then withdrawn marriage rights for same-sex couples. Beyond the narrow holding in the Prop 8 case, however, the decision explicitly adopts findings that undermine the logic of the laws and constitutional amendments on the books in a majority of states to deny marriage to same-sex couples.
As journalist Ari Ezra Waldeman wrote on the gay news site Towelroad, Reinhardt concluded that banning same-sex marriage does not help promote marriage by opposite-sex couples, as supporters of such bans contend. Nor does it promote “responsible procreation,” another of the goals claimed by anti-gay marriage advocates.
In addition, Reinhardt emphatically rejected the logic of giving same-sex couples legal recognition with some term other than marriage, such as civil union or domestic partnership, at least if it comes with all the rights that marriage would entail. “The name marriage signifies the unique recognition that society gives to harmonious, loyal, enduring, and intimate relationships,” Reinhardt wrote. Giving same-sex couples all the rights but not the designation, Reinhardt reasoned, singles them out for unequal treatment for no legitimate reason.
In reaching that conclusion, the appeals court relied explicitly on the Supreme Court’s decision in Romer v. Evans (1996) striking down a Colorado ballot measure that barred the state or local governments from enacting laws to prohibit discrimination on the basis of sexual orientation. Justice Anthony M. Kennedy’s opinion for the majority found the law unconstitutional because it had no justification other than to treat gays and lesbians as second-class citizens.
Legal analysts have viewed Reinhardt’s citation of Kennedy’s opinion as a barefaced attempt to gain his vote for affirmance if the Prop 8 case reaches the Supreme Court. Less cynically, the citation represents the normal path of common-law adjudication, where a principle from one case is logically applied to an analogous case later on.
The Supreme Court followed that path in declaring racial segregation unconstitutional. In four successive cases, the court ruled that states could not segregate higher education by diverting African Americans to a law school in another state or a separate law school in the state itself or by admitting them to a graduate school but forcing them to use separate facilities. By the time of Brown v. Board of Education (1954), the logic was inexorable: legally enforced racial segregation in education could not stand.
Even so, the justices were divided when Brown and its four companion cases were first argued. As is well known, the new chief justice, Earl Warren, worked hard after a second round of arguments to persuade reluctant colleagues to make the eventual ruling unanimous.
The current justices are divided on gay rights. Conservatives Antonin Scalia and Clarence Thomas dissented in Romer and again in the 2003 ruling, Lawrence v. Texas, striking down laws banning gay sex. The newest conservatives, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., have not yet ruled in a case directly raising gay rights issues.
Roberts would seem unlikely to play Warren’s role in forging a united court on same-sex marriage, yet he appreciates his responsibility for protecting the court’s public reputation. Public opinion on gay marriage is shifting, inexorably. Some polls find majority support, and all polls find strong support among young people.
All eyes will be on Kennedy if the Prop 8 case reaches the Supreme Court. But they should also be focused on Roberts to see whether he tries to lead the court to adopt or resist the logic of the ruling and the growing acceptance of gay marriage in the public at large.
The battle to gain marriage rights for gay men and lesbians began in earnest two decades ago with litigation by three same-sex couples in Hawaii. They won an interim victory only to see it reversed by the state’s voters and then used to generate a backlash nationwide.
As with the campaign for racial justice, these first two decades have seen more setbacks than advances for marriage equality. But the federal appeals court’s decision last week [Feb. 7] striking down California’s anti-gay marriage initiative Proposition 8 marks a significant turning point. And the ruling could be decisive if its logic is accepted by the U.S. Supreme Court.
On the surface, the ruling by the Ninth U.S. Circuit Court of Appeals in Perry v. Brown is narrow and limited. At trial, U.S. District Court Judge Vaughn Walker ruled definitively that denying marriage rights to same-sex couples violates both the Due Process and Equal Protection Clauses of the U.S. Constitution. On appeal, the three-judge panel led by the indomitable liberal Stephen Reinhardt declined to reach that ultimate question.
Instead, Reinhardt wrote for a 2-1 majority in holding that the November 2008 ballot measure violated equal protection principles because it withdrew marriage rights recognized by the California Supreme Court only six months earlier for no reason other than “to lessen the status and human dignity of gays and lesbians in California.”
That holding applies only to California. No other state has first granted and then withdrawn marriage rights for same-sex couples. Beyond the narrow holding in the Prop 8 case, however, the decision explicitly adopts findings that undermine the logic of the laws and constitutional amendments on the books in a majority of states to deny marriage to same-sex couples.
As journalist Ari Ezra Waldeman wrote on the gay news site Towelroad, Reinhardt concluded that banning same-sex marriage does not help promote marriage by opposite-sex couples, as supporters of such bans contend. Nor does it promote “responsible procreation,” another of the goals claimed by anti-gay marriage advocates.
In addition, Reinhardt emphatically rejected the logic of giving same-sex couples legal recognition with some term other than marriage, such as civil union or domestic partnership, at least if it comes with all the rights that marriage would entail. “The name marriage signifies the unique recognition that society gives to harmonious, loyal, enduring, and intimate relationships,” Reinhardt wrote. Giving same-sex couples all the rights but not the designation, Reinhardt reasoned, singles them out for unequal treatment for no legitimate reason.
In reaching that conclusion, the appeals court relied explicitly on the Supreme Court’s decision in Romer v. Evans (1996) striking down a Colorado ballot measure that barred the state or local governments from enacting laws to prohibit discrimination on the basis of sexual orientation. Justice Anthony M. Kennedy’s opinion for the majority found the law unconstitutional because it had no justification other than to treat gays and lesbians as second-class citizens.
Legal analysts have viewed Reinhardt’s citation of Kennedy’s opinion as a barefaced attempt to gain his vote for affirmance if the Prop 8 case reaches the Supreme Court. Less cynically, the citation represents the normal path of common-law adjudication, where a principle from one case is logically applied to an analogous case later on.
The Supreme Court followed that path in declaring racial segregation unconstitutional. In four successive cases, the court ruled that states could not segregate higher education by diverting African Americans to a law school in another state or a separate law school in the state itself or by admitting them to a graduate school but forcing them to use separate facilities. By the time of Brown v. Board of Education (1954), the logic was inexorable: legally enforced racial segregation in education could not stand.
Even so, the justices were divided when Brown and its four companion cases were first argued. As is well known, the new chief justice, Earl Warren, worked hard after a second round of arguments to persuade reluctant colleagues to make the eventual ruling unanimous.
The current justices are divided on gay rights. Conservatives Antonin Scalia and Clarence Thomas dissented in Romer and again in the 2003 ruling, Lawrence v. Texas, striking down laws banning gay sex. The newest conservatives, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., have not yet ruled in a case directly raising gay rights issues.
Roberts would seem unlikely to play Warren’s role in forging a united court on same-sex marriage, yet he appreciates his responsibility for protecting the court’s public reputation. Public opinion on gay marriage is shifting, inexorably. Some polls find majority support, and all polls find strong support among young people.
All eyes will be on Kennedy if the Prop 8 case reaches the Supreme Court. But they should also be focused on Roberts to see whether he tries to lead the court to adopt or resist the logic of the ruling and the growing acceptance of gay marriage in the public at large.
Sunday, February 5, 2012
Would Supreme Court OK Obama’s Recess Appointments?
Hard cases make bad law, it is said. And President Obama’s recess appointments to the National Labor Relations Board (NLRB) and the new Consumer Financial Protection Bureau (CFPB) while the Senate was purportedly not in recess indeed present a hard case that tests a major separation-of-powers provision in the U.S. Constitution. But it is a test that Obama is likely to win, even if — or perhaps especially if — it reaches the current Supreme Court.
On the surface, Obama appears to be circumventing the Constitution’s requirement that he appoint “Officers” of the United States only with “the Advice and Consent of the Senate” (Art. II, sec. 2, cl. 2). As a fail-safe to ensure the government’s ability to function when the Senate was not meeting, the Framers added in the next clause that the president “shall have the Power to fill up all Vacancies that may happen during the Recess of the Senate.” The recess appointee can serve, however, only to the end of the Senate’s “next session.”
By its lights, the Senate was not in recess on Jan. 4 when Obama named Richard Cordray to head the new consumer agency and appointed Sharon Block, Terrence Flynn, and Richard Griffin to vacancies on the five-member NLRB. The Senate had been meeting in so-called pro forma sessions every two or three days during its winter vacation and was not scheduled to resume normal business sessions for nearly three weeks.
In announcing the appointments, however, Obama wrapped himself in the constitutional purpose of enabling two important government agencies to function in the face of obstructionism by the Senate’s Republican minority. “The American people deserve to have qualified public servants fighting for them every day,” Obama said. GOP senators had stalled action on Cordray’s nomination to try to force changes in the new agency’s structure and powers. Republicans had also reportedly signaled that they would prevent action on filling the NLRB vacancies, even at the cost of denying the board a sufficient quorum to take any legal actions.
Republicans and conservative legal experts denounced the action as an unconstitutional power-grab — and noted that the pro forma session tactic had been invented by then-Senate Minority Leader Harry Reid in 2007 to thwart President George W. Bush from making recess appointments. The Republicans were not mollified when, a week later, the Justice Department released the legal opinion embodying the advice given to Obama earlier that he could make the appointments.
The 23-page memorandum, signed by Virginia Seitz as head of the Office of Legal Counsel (OLC), begins by emphasizing that the Senate had adjourned on Dec. 17 with a unanimous consent agreement to meet only in pro forma sessions until Jan. 23 “with no business conducted.” Given the “practical construction” traditionally given to the Recess Appointments Clause, Seitz concluded that Congress can prevent the president from making recess appointments “by remaining continuously in session and available to receive and act on nominations,” but “cannot do so by conducting pro forma sessions during a recess.”
Seitz acknowledged that “substantial arguments on the opposite side” would create “some litigation risk for such appointments.” In fact, legal challenges came quickly. Business groups on Jan. 13 added a challenge to the appointments to an existing suit in federal court in Washington attacking a recent NLRB rule. Last week, owners of a New York housing complex attacked the validity of the appointments in seeking to undo an NLRB injunction to end a lockout in a pay dispute. Also last week, 40 Republican senators vowed to file a friend-of-the-court brief attacking the appointments. They did not specify which of the challenges they would join.
The challenges face significant jurisdictional questions; but if courts reach the merits, the appointments stand a very good chance of being upheld. As noted in Seitz’s memorandum, the most recent appellate ruling on the issue, in 2004, upheld Bush’s recess appointment of former Alabama attorney general William Pryor to the federal appeals court in Atlanta. The majority in the en banc decision took a broad view of the president’s power in the face of a narrowing, literalist interpretation of the constitutional language urged by the dissenting judge.
The Supreme Court declined to review the ruling in Pryor’s case, so there is no recent evidence of the high court’s view on the issue. On other questions of presidential power, however, the Roberts Court has definite hawkish tendencies.
Among conservatives, Justice Antonin Scalia has been an executive branch devotee since his attacks on the legislative veto in the 1980s. Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. began their legal careers as lawyers in the presidential power-expanding Reagan administration. On the left, newly appointed Justice Elena Kagan also appears to be bullish on presidential power. And the court’s strongest defender of congressional prerogatives, Stephen G. Breyer, is nevertheless a confirmed pragmatist who is likely to see through the Senate’s subterfuge of using pro forma sessions to disguise an actual recess.
Despite its original, limited purpose, the Recess Appointments Clause has become over time a tool for the president to get around delays and obstructions in the Senate. Those who worry about abuses of presidential power may view this as bad practice — and bad law. But unless the Supreme Court sets itself against the weight of practice and judicial precedent, Obama seems likely to prevail if this hard case reaches the justices.
On the surface, Obama appears to be circumventing the Constitution’s requirement that he appoint “Officers” of the United States only with “the Advice and Consent of the Senate” (Art. II, sec. 2, cl. 2). As a fail-safe to ensure the government’s ability to function when the Senate was not meeting, the Framers added in the next clause that the president “shall have the Power to fill up all Vacancies that may happen during the Recess of the Senate.” The recess appointee can serve, however, only to the end of the Senate’s “next session.”
By its lights, the Senate was not in recess on Jan. 4 when Obama named Richard Cordray to head the new consumer agency and appointed Sharon Block, Terrence Flynn, and Richard Griffin to vacancies on the five-member NLRB. The Senate had been meeting in so-called pro forma sessions every two or three days during its winter vacation and was not scheduled to resume normal business sessions for nearly three weeks.
In announcing the appointments, however, Obama wrapped himself in the constitutional purpose of enabling two important government agencies to function in the face of obstructionism by the Senate’s Republican minority. “The American people deserve to have qualified public servants fighting for them every day,” Obama said. GOP senators had stalled action on Cordray’s nomination to try to force changes in the new agency’s structure and powers. Republicans had also reportedly signaled that they would prevent action on filling the NLRB vacancies, even at the cost of denying the board a sufficient quorum to take any legal actions.
Republicans and conservative legal experts denounced the action as an unconstitutional power-grab — and noted that the pro forma session tactic had been invented by then-Senate Minority Leader Harry Reid in 2007 to thwart President George W. Bush from making recess appointments. The Republicans were not mollified when, a week later, the Justice Department released the legal opinion embodying the advice given to Obama earlier that he could make the appointments.
The 23-page memorandum, signed by Virginia Seitz as head of the Office of Legal Counsel (OLC), begins by emphasizing that the Senate had adjourned on Dec. 17 with a unanimous consent agreement to meet only in pro forma sessions until Jan. 23 “with no business conducted.” Given the “practical construction” traditionally given to the Recess Appointments Clause, Seitz concluded that Congress can prevent the president from making recess appointments “by remaining continuously in session and available to receive and act on nominations,” but “cannot do so by conducting pro forma sessions during a recess.”
Seitz acknowledged that “substantial arguments on the opposite side” would create “some litigation risk for such appointments.” In fact, legal challenges came quickly. Business groups on Jan. 13 added a challenge to the appointments to an existing suit in federal court in Washington attacking a recent NLRB rule. Last week, owners of a New York housing complex attacked the validity of the appointments in seeking to undo an NLRB injunction to end a lockout in a pay dispute. Also last week, 40 Republican senators vowed to file a friend-of-the-court brief attacking the appointments. They did not specify which of the challenges they would join.
The challenges face significant jurisdictional questions; but if courts reach the merits, the appointments stand a very good chance of being upheld. As noted in Seitz’s memorandum, the most recent appellate ruling on the issue, in 2004, upheld Bush’s recess appointment of former Alabama attorney general William Pryor to the federal appeals court in Atlanta. The majority in the en banc decision took a broad view of the president’s power in the face of a narrowing, literalist interpretation of the constitutional language urged by the dissenting judge.
The Supreme Court declined to review the ruling in Pryor’s case, so there is no recent evidence of the high court’s view on the issue. On other questions of presidential power, however, the Roberts Court has definite hawkish tendencies.
Among conservatives, Justice Antonin Scalia has been an executive branch devotee since his attacks on the legislative veto in the 1980s. Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. began their legal careers as lawyers in the presidential power-expanding Reagan administration. On the left, newly appointed Justice Elena Kagan also appears to be bullish on presidential power. And the court’s strongest defender of congressional prerogatives, Stephen G. Breyer, is nevertheless a confirmed pragmatist who is likely to see through the Senate’s subterfuge of using pro forma sessions to disguise an actual recess.
Despite its original, limited purpose, the Recess Appointments Clause has become over time a tool for the president to get around delays and obstructions in the Senate. Those who worry about abuses of presidential power may view this as bad practice — and bad law. But unless the Supreme Court sets itself against the weight of practice and judicial precedent, Obama seems likely to prevail if this hard case reaches the justices.
Sunday, January 29, 2012
Time to Redefine Privacy for Digital Era
Long before the cell phone era, Michael Lee Smith was convicted of robbery because he made the mistake of calling his victim from his home for days after. Police in Maryland got the telephone company to use a pen register — a device for recording the numbers called from a specific telephone — to confirm Smith’s calls. That information eventually led to Smith’s identification and conviction.
On appeal, Smith argued that police violated his Fourth Amendment rights by conducting a warrantless search of his phone calls. By a 5-3 vote, the Supreme Court in Smith v. Maryland (1979) rejected his argument. For the majority, Justice Harry A. Blackmun reasoned that phone users have no expectation of privacy — certainly no reasonable expectation of privacy — in the telephone numbers they dial because they voluntarily provide that information to the phone company to make the calls.
Dissenting justices disagreed. “Privacy is not a discrete commodity, possessed absolutely or not at all,” Justice Thurgood Marshall wrote. “Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes.”
Three decades later, the majority view in Smith remains black-letter law. It explains why police can search your garbage cans, ask a bank for your financial records, or track you down by your cell phone calls – all without a search warrant or anything more than a hunch. But in an important and somewhat overlooked opinion last week [Jan. 23], Justice Sonia Sotomayor urged that this doctrine be reconsidered because it makes no sense (if it ever did) in the digital era.
Sotomayor voiced her view in a concurring opinion in the closely watched case testing the ability of police to use global positioning system (GPS) devices for long-term surveillance of suspects. The court’s unanimous decision in United States v. Jones reversed the drug-trafficking conviction of a Washington, D.C., nightclub owner, Antoine Jones, who was nabbed after a GPS tracking device followed his car to a drug warehouse.
Jones’s good fortune stemmed from a mistake by the joint local-FBI task force working the case. Police got a search warrant to attach the device to Jones’s car, but the warrant was good for 10 days and only in the District of Columbia. Police placed the small device on Jones’s car on the 11th day while it was parked in Maryland. The slip-up forced federal prosecutors to defend the conviction on the premise that police had no valid search warrant.
Judicial concern about high-tech surveillance extended across the ideological spectrum. In oral arguments, Chief Justice John G. Roberts Jr. asked whether police could attach a GPS device to the justices’ cars; Justice Anthony M. Kennedy wondered about surreptitiously stuffing a GPS device into a man’s suit coat. Justice Ruth Bader Ginsburg said the government seemed to be arguing that anyone could be surveilled as soon as one stepped out of one's house.
In the end, all the justices agreed on reversing Jones’s conviction, but they split into two camps on the rationale. Writing for a five-vote majority, Justice Antonin Scalia said the government’s trespass onto Jones’s car for the purpose of gathering information amounted to a search. The Framers would have thought so too, he said. An odd gathering of four justices — the conservative Samuel A. Alito Jr. leading liberals Ginsburg, Stephen G. Breyer, and Elena Kagan— said the government had entrenched on Jones’s reasonable expectation of privacy. Sotomayor joined Scalia’s opinion, but said she agreed with Alito’s too.
The decision drew immediate cheers from civil libertarians. Catherine Crump, director of the ACLU’s speech, technology, and privacy project, said the ruling was “a heartening sign that as technology advances, the Supreme Court will not allow the Fourth Amendment to fall behind.” Jones’s appellate lawyer, the former U.S. solicitor general Walter Dellinger, said the ruling meant that “almost any” law enforcement of GPS surveillance would be questionable without a warrant.
Over time, caution was heard. Tom Goldstein, Supreme Court advocate and publisher of SCOTUSblog, noted that the majority did not state whether – or under what circumstances — a warrant would be required. Warrantless searches are permitted, of course, at times — for example, in an emergency. Goldstein suggested the ruling would have little impact on law enforcement, at least for shorter surveillance. And from a separate perspective he depicted Alito’s opinion as only scratching the surface of the hard question of defining “reasonable expectations of privacy” in the 21st century.
If both main opinions skirted hard questions, Sotomayor took on a harder task by rethinking whether one gives up privacy rights by "voluntarily” disclosing information to third parties. “This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks,” Sotomayor wrote.
The Facebook era, of course, has redefined privacy in our social relationships, but that does not mean that every cell phone user, every on-line bank customer, or every Internet surfer has willingly exposed every phone call, every bill-pay, and every Web site visit to government monitoring. Sotomayor may have been a lone voice in raising the issue last week, but her opinion is a clarion call for the Supreme Court to rediscover and redefine privacy in the digital age.
On appeal, Smith argued that police violated his Fourth Amendment rights by conducting a warrantless search of his phone calls. By a 5-3 vote, the Supreme Court in Smith v. Maryland (1979) rejected his argument. For the majority, Justice Harry A. Blackmun reasoned that phone users have no expectation of privacy — certainly no reasonable expectation of privacy — in the telephone numbers they dial because they voluntarily provide that information to the phone company to make the calls.
Dissenting justices disagreed. “Privacy is not a discrete commodity, possessed absolutely or not at all,” Justice Thurgood Marshall wrote. “Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes.”
Three decades later, the majority view in Smith remains black-letter law. It explains why police can search your garbage cans, ask a bank for your financial records, or track you down by your cell phone calls – all without a search warrant or anything more than a hunch. But in an important and somewhat overlooked opinion last week [Jan. 23], Justice Sonia Sotomayor urged that this doctrine be reconsidered because it makes no sense (if it ever did) in the digital era.
Sotomayor voiced her view in a concurring opinion in the closely watched case testing the ability of police to use global positioning system (GPS) devices for long-term surveillance of suspects. The court’s unanimous decision in United States v. Jones reversed the drug-trafficking conviction of a Washington, D.C., nightclub owner, Antoine Jones, who was nabbed after a GPS tracking device followed his car to a drug warehouse.
Jones’s good fortune stemmed from a mistake by the joint local-FBI task force working the case. Police got a search warrant to attach the device to Jones’s car, but the warrant was good for 10 days and only in the District of Columbia. Police placed the small device on Jones’s car on the 11th day while it was parked in Maryland. The slip-up forced federal prosecutors to defend the conviction on the premise that police had no valid search warrant.
Judicial concern about high-tech surveillance extended across the ideological spectrum. In oral arguments, Chief Justice John G. Roberts Jr. asked whether police could attach a GPS device to the justices’ cars; Justice Anthony M. Kennedy wondered about surreptitiously stuffing a GPS device into a man’s suit coat. Justice Ruth Bader Ginsburg said the government seemed to be arguing that anyone could be surveilled as soon as one stepped out of one's house.
In the end, all the justices agreed on reversing Jones’s conviction, but they split into two camps on the rationale. Writing for a five-vote majority, Justice Antonin Scalia said the government’s trespass onto Jones’s car for the purpose of gathering information amounted to a search. The Framers would have thought so too, he said. An odd gathering of four justices — the conservative Samuel A. Alito Jr. leading liberals Ginsburg, Stephen G. Breyer, and Elena Kagan— said the government had entrenched on Jones’s reasonable expectation of privacy. Sotomayor joined Scalia’s opinion, but said she agreed with Alito’s too.
The decision drew immediate cheers from civil libertarians. Catherine Crump, director of the ACLU’s speech, technology, and privacy project, said the ruling was “a heartening sign that as technology advances, the Supreme Court will not allow the Fourth Amendment to fall behind.” Jones’s appellate lawyer, the former U.S. solicitor general Walter Dellinger, said the ruling meant that “almost any” law enforcement of GPS surveillance would be questionable without a warrant.
Over time, caution was heard. Tom Goldstein, Supreme Court advocate and publisher of SCOTUSblog, noted that the majority did not state whether – or under what circumstances — a warrant would be required. Warrantless searches are permitted, of course, at times — for example, in an emergency. Goldstein suggested the ruling would have little impact on law enforcement, at least for shorter surveillance. And from a separate perspective he depicted Alito’s opinion as only scratching the surface of the hard question of defining “reasonable expectations of privacy” in the 21st century.
If both main opinions skirted hard questions, Sotomayor took on a harder task by rethinking whether one gives up privacy rights by "voluntarily” disclosing information to third parties. “This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks,” Sotomayor wrote.
The Facebook era, of course, has redefined privacy in our social relationships, but that does not mean that every cell phone user, every on-line bank customer, or every Internet surfer has willingly exposed every phone call, every bill-pay, and every Web site visit to government monitoring. Sotomayor may have been a lone voice in raising the issue last week, but her opinion is a clarion call for the Supreme Court to rediscover and redefine privacy in the digital age.
Monday, January 23, 2012
Alabama's Backwater of Justice in Death Cases
Some 80 years ago, a citizens’ posse in Alabama hauled nine black teenagers off a railroad car and turned them over to authorities to be charged with raping two white girls. The Scottsboro Boys, as they came to be known, were convicted and all but one of them sentenced to death after a series of trials with inadequate legal representation and conducted in a mob atmosphere.
Well before the due process revolution, the Supreme Court could not countenance the product of Alabama’s criminal injustice system — even with four doggedly conservative members. Twice, the court ordered new trials, first because of the lack of effective legal representation and then because of the systematic exclusion of African Americans from juries. Even after one of the accusers retracted the charges, four were convicted in a third trial. Alabama courts to the contrary notwithstanding, history now judges them to have been innocent.
Today, Alabama remains a backwater of justice in death penalty cases. But last week [Jan. 18], the Supreme Court — once again with four doggedly conservative justices – gave an Alabama death row inmate a limited reprieve. The court’s 7-2 decision in Maples v. Thomas gives Cory Maples a second chance, despite Alabama’s strenuous opposition, to show that he was convicted and sentenced to death only after being denied his Sixth Amendment right to effective assistance of counsel.
Maples’ conviction and sentence are products of Alabama policies that give indigent defendants in capital cases only the bare rudiments of a legal defense. Court-appointed lawyers for indigent defendants need nothing more than five years’ experience in criminal cases. They need not have handled a capital case before, and they do not have to undergo any training in the special procedural rules for capital cases.
Until 1999, court-appointed attorneys were paid only $40 an hour in the courtroom and $20 an hour out of court, with a $1,000 cap on out-of-court work. The cap was removed in 1999, and pay raised — but only to $70 an hour for work in or out of the courtroom.
With capital defense so constrained, Alabama unsurprisingly ranks high in the number of executions since capital punishment was restored in 1976: sixth among the states with 53 executions. And the state ranks fifth in the nation in the number of inmates currently facing death sentences, with 206 prisoners on death row. More than two-thirds of them were sentenced before the modest rise in indigent defense compensation in 1999.
Alabama is also one of the few states that does not guarantee representation to indigent capital defendants in postconviction proceedings. Death row inmates must look to volunteer lawyers for help, often to young lawyers performing pro bono service at big, out-of-state law firms.
Maples was charged with killing two friends in 1997 while out on the town with them. He was represented at trial by two court-appointed attorneys. Only one had ever tried a death penalty case, and he had not taken the prior case through a penalty phase hearing. Maples was convicted and sentenced to death, and his conviction and sentence were upheld on appeal.
Maples then filed a petition for postconviction relief in state court based on ineffective assistance at counsel, represented in the proceeding by two young lawyers from the New York firm of Sullivan & Cromwell: Jaasai Munanka and Clara Ingen-Housz. Predictably, an Alabama judge denied Maples’ plea. The court clerk’s office mailed notice of the decision to the two New York lawyers and to the Alabama lawyer who agreed to serve as local counsel as long as he did not have to actually work on the case.
Now, Maples fell victim to what Justice Samuel A. Alito Jr. called in a concurring opinion “a veritable perfect storm of misfortune” that caused him to miss the deadline for appealing the decision through no fault of his own. Munanka and Ingen-Housz had left Sullivan & Cromwell, but failed to notify Maples, the local lawyer, or the Alabama trial court of their move. The Sullivan & Cromwell mail room returned the notice to the court clerk, unopened. The local lawyer ignored it, assuming that the New York lawyers were still on the case. The court clerk did not attempt to find Munanka or Ingen-Housz.
With the deadline missed, the state appellate court dismissed Maples’ appeal. In urging dismissal, the state’s attorney said that Maples could still file a federal habeas corpus petition. But when he did, the state’s lawyers said that federal courts should dismiss the petition because of his “procedural default.” As Justice Ruth Bader Ginsburg noted in her majority opinion, there was “some tension” between the state’s two positions.
Ginsburg led six other justices, including Alito and fellow conservative Chief Justice John G. Roberts Jr., in concluding that Maples was entitled to an appeal because he had been abandoned by his lawyers. “In these circumstances, no just system would lay the default at Maples’ death-cell door,” she wrote. Perhaps not, but Justices Antonin Scalia and Clarence Thomas would have. Alabama was entitled “to stand on its rights,” Scalia wrote, “and enforce a habeas petitioner’s procedural default even when counsel is to blame.”
Maples now gets a chance to argue his Sixth Amendment claim before a federal judge, who will have no vested interest in excusing Alabama’s record in indigent capital defense. As Ginsburg suggested, a just system — but not Alabama — would give Maples at least that much.
Well before the due process revolution, the Supreme Court could not countenance the product of Alabama’s criminal injustice system — even with four doggedly conservative members. Twice, the court ordered new trials, first because of the lack of effective legal representation and then because of the systematic exclusion of African Americans from juries. Even after one of the accusers retracted the charges, four were convicted in a third trial. Alabama courts to the contrary notwithstanding, history now judges them to have been innocent.
Today, Alabama remains a backwater of justice in death penalty cases. But last week [Jan. 18], the Supreme Court — once again with four doggedly conservative justices – gave an Alabama death row inmate a limited reprieve. The court’s 7-2 decision in Maples v. Thomas gives Cory Maples a second chance, despite Alabama’s strenuous opposition, to show that he was convicted and sentenced to death only after being denied his Sixth Amendment right to effective assistance of counsel.
Maples’ conviction and sentence are products of Alabama policies that give indigent defendants in capital cases only the bare rudiments of a legal defense. Court-appointed lawyers for indigent defendants need nothing more than five years’ experience in criminal cases. They need not have handled a capital case before, and they do not have to undergo any training in the special procedural rules for capital cases.
Until 1999, court-appointed attorneys were paid only $40 an hour in the courtroom and $20 an hour out of court, with a $1,000 cap on out-of-court work. The cap was removed in 1999, and pay raised — but only to $70 an hour for work in or out of the courtroom.
With capital defense so constrained, Alabama unsurprisingly ranks high in the number of executions since capital punishment was restored in 1976: sixth among the states with 53 executions. And the state ranks fifth in the nation in the number of inmates currently facing death sentences, with 206 prisoners on death row. More than two-thirds of them were sentenced before the modest rise in indigent defense compensation in 1999.
Alabama is also one of the few states that does not guarantee representation to indigent capital defendants in postconviction proceedings. Death row inmates must look to volunteer lawyers for help, often to young lawyers performing pro bono service at big, out-of-state law firms.
Maples was charged with killing two friends in 1997 while out on the town with them. He was represented at trial by two court-appointed attorneys. Only one had ever tried a death penalty case, and he had not taken the prior case through a penalty phase hearing. Maples was convicted and sentenced to death, and his conviction and sentence were upheld on appeal.
Maples then filed a petition for postconviction relief in state court based on ineffective assistance at counsel, represented in the proceeding by two young lawyers from the New York firm of Sullivan & Cromwell: Jaasai Munanka and Clara Ingen-Housz. Predictably, an Alabama judge denied Maples’ plea. The court clerk’s office mailed notice of the decision to the two New York lawyers and to the Alabama lawyer who agreed to serve as local counsel as long as he did not have to actually work on the case.
Now, Maples fell victim to what Justice Samuel A. Alito Jr. called in a concurring opinion “a veritable perfect storm of misfortune” that caused him to miss the deadline for appealing the decision through no fault of his own. Munanka and Ingen-Housz had left Sullivan & Cromwell, but failed to notify Maples, the local lawyer, or the Alabama trial court of their move. The Sullivan & Cromwell mail room returned the notice to the court clerk, unopened. The local lawyer ignored it, assuming that the New York lawyers were still on the case. The court clerk did not attempt to find Munanka or Ingen-Housz.
With the deadline missed, the state appellate court dismissed Maples’ appeal. In urging dismissal, the state’s attorney said that Maples could still file a federal habeas corpus petition. But when he did, the state’s lawyers said that federal courts should dismiss the petition because of his “procedural default.” As Justice Ruth Bader Ginsburg noted in her majority opinion, there was “some tension” between the state’s two positions.
Ginsburg led six other justices, including Alito and fellow conservative Chief Justice John G. Roberts Jr., in concluding that Maples was entitled to an appeal because he had been abandoned by his lawyers. “In these circumstances, no just system would lay the default at Maples’ death-cell door,” she wrote. Perhaps not, but Justices Antonin Scalia and Clarence Thomas would have. Alabama was entitled “to stand on its rights,” Scalia wrote, “and enforce a habeas petitioner’s procedural default even when counsel is to blame.”
Maples now gets a chance to argue his Sixth Amendment claim before a federal judge, who will have no vested interest in excusing Alabama’s record in indigent capital defense. As Ginsburg suggested, a just system — but not Alabama — would give Maples at least that much.
Tuesday, January 17, 2012
Religious Freedom Ruling a Land Mine for Equal Rights
A school fires a teacher when she tries to return to her job after having taken a medical leave for a doctor-diagnosed disability. That sounds like a violation of the federal Americans With Disabilities Act, which requires employers to make “reasonable accommodations” for individuals with physical or mental disabilities.
Apparently not, however, if the school is church-sponsored and the elementary-grade teacher’s duties include presiding over daily religious exercises. At least, that is the import of the Supreme Court’s unanimous decision last week [Jan. 12] recognizing a “ministerial exception” for religious organizations to anti-discrimination laws.
The court’s decision in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission is being hailed as the most important religious freedom ruling in decades. But the ruling, written in freedom-triumphant language by Chief Justice John G. Roberts Jr., is also a potential land mine for civil rights, overly deferential to religious groups and highly susceptible to abuse.
The case began in January 2005 after Cheryl Perich asked to return to her job at a small, K-8 school in Redford, Mich., run by the Hosanna-Tabor Evangelical Lutheran Church. Perich had taught there since 1999 — satisfactorily, it appears. But she took a medical leave after falling ill in June 2004 with what was later diagnosed as narcolepsy, a disabling condition characterized, as the court later put it, by “sudden and deep sleeps from which she could not be aroused.”
By January 2005, Perich felt well enough to return to work. When she notified principal Stacey Hoeft of her plan, however, she was told that the school had hired a lay teacher for the position. Hoeft also expressed concern that Perich was not ready to return to the classroom. School administrators told the church congregation of the decision a few days later, and the congregation voted to offer Perich a “peaceful release” from the job (and partial health benefits) if she would resign.
Perich refused to resign and instead reported to the school on Feb. 22, armed with a letter from her doctor clearing her for work. Hoeft told her to leave; Perich first asked for documentation that she had shown up ready to teach. Hoeft called Perich that afternoon to say she would likely be fired. Perich told Hoeft she had consulted with a lawyer. The school board voted the next day to reconsider Perich’s employment because of her “regrettable” actions. Two months later, the congregation formally voted to fire Perich based on “insubordination and disruptive behavior” and the damage she had done to the “working relationship” by “threatening to take legal action.”
The Equal Employment Opportunity Commission (EEOC) took up Perich’s case and sued for reinstatement and back pay. The church responded by claiming a religious-based exemption. Perich, a Lutheran, had sought and accepted the church’s “call” to her position and designation as a “commissioned minister,” the church noted. She taught a religion class and also led her class in daily prayer and devotional exercises.
The federal district court judge ruled for the church, but the Sixth U.S. Circuit Court of Appeals disagreed. The appeals court recognized a ministerial exception, but said it did not apply to Perich’s case because her duties were substantially the same as those for the school’s lay teachers.
Given the unanimity in lower courts, the Supreme Court’s decision to recognize a ministerial exception was perhaps unsurprising. “The Establishment Clause prevents the Government from appointing ministers,” Roberts wrote, “and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.” He went on to credit the church’s contention that Perich was the equivalent of a minister. Perich’s specifically religious duties may have been minimal, Roberts said, but the issue “is not one that can be resolved by a stopwatch.”
The multifactor test outlined by Roberts stops short of the church’s view, adopted in a concurrence by Justice Clarence Thomas, that courts should simply defer to a religious group’s view of the ministerial nature of a position. Still, the ruling gives parochial schools plenty of room to define teachers’ roles broadly and leave them outside the protection of civil rights laws.
Most troublingly, the Supreme Court accepted Hosanna-Tabor’s depiction of its dispute with Perich as based on church doctrine. The back and forth between Perich and school authorities was the ordinary stuff of civil rights law: an employer reluctant to follow the law who retaliates after the employee’s resort to legal action. Not until the case went to court did Hosanna-Tabor begin arguing that devout Lutherans do not go to court, but settle any disputes within the church.
In its briefs, the government argued that religious groups cannot be allowed to opt out of the secular legal system. Religious organizations that deal with sexual abuse by clergy darkly warned that a ruling for Hosanna-Tabor would allow religious organizations — think, the Roman Catholic Church — to retaliate against internal whistleblowers. Roberts said the court could deal with cases like that “if and when they arise.”
Roberts rightly trumpets the nation’s commitment to religious freedom, but the court in other cases has been more nuanced in protecting it. Today, the nation is equally committed to protecting equal rights. Cheryl Perich may rightly wonder whether a better accommodation of the two could have been found in her case.
Apparently not, however, if the school is church-sponsored and the elementary-grade teacher’s duties include presiding over daily religious exercises. At least, that is the import of the Supreme Court’s unanimous decision last week [Jan. 12] recognizing a “ministerial exception” for religious organizations to anti-discrimination laws.
The court’s decision in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission is being hailed as the most important religious freedom ruling in decades. But the ruling, written in freedom-triumphant language by Chief Justice John G. Roberts Jr., is also a potential land mine for civil rights, overly deferential to religious groups and highly susceptible to abuse.
The case began in January 2005 after Cheryl Perich asked to return to her job at a small, K-8 school in Redford, Mich., run by the Hosanna-Tabor Evangelical Lutheran Church. Perich had taught there since 1999 — satisfactorily, it appears. But she took a medical leave after falling ill in June 2004 with what was later diagnosed as narcolepsy, a disabling condition characterized, as the court later put it, by “sudden and deep sleeps from which she could not be aroused.”
By January 2005, Perich felt well enough to return to work. When she notified principal Stacey Hoeft of her plan, however, she was told that the school had hired a lay teacher for the position. Hoeft also expressed concern that Perich was not ready to return to the classroom. School administrators told the church congregation of the decision a few days later, and the congregation voted to offer Perich a “peaceful release” from the job (and partial health benefits) if she would resign.
Perich refused to resign and instead reported to the school on Feb. 22, armed with a letter from her doctor clearing her for work. Hoeft told her to leave; Perich first asked for documentation that she had shown up ready to teach. Hoeft called Perich that afternoon to say she would likely be fired. Perich told Hoeft she had consulted with a lawyer. The school board voted the next day to reconsider Perich’s employment because of her “regrettable” actions. Two months later, the congregation formally voted to fire Perich based on “insubordination and disruptive behavior” and the damage she had done to the “working relationship” by “threatening to take legal action.”
The Equal Employment Opportunity Commission (EEOC) took up Perich’s case and sued for reinstatement and back pay. The church responded by claiming a religious-based exemption. Perich, a Lutheran, had sought and accepted the church’s “call” to her position and designation as a “commissioned minister,” the church noted. She taught a religion class and also led her class in daily prayer and devotional exercises.
The federal district court judge ruled for the church, but the Sixth U.S. Circuit Court of Appeals disagreed. The appeals court recognized a ministerial exception, but said it did not apply to Perich’s case because her duties were substantially the same as those for the school’s lay teachers.
Given the unanimity in lower courts, the Supreme Court’s decision to recognize a ministerial exception was perhaps unsurprising. “The Establishment Clause prevents the Government from appointing ministers,” Roberts wrote, “and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.” He went on to credit the church’s contention that Perich was the equivalent of a minister. Perich’s specifically religious duties may have been minimal, Roberts said, but the issue “is not one that can be resolved by a stopwatch.”
The multifactor test outlined by Roberts stops short of the church’s view, adopted in a concurrence by Justice Clarence Thomas, that courts should simply defer to a religious group’s view of the ministerial nature of a position. Still, the ruling gives parochial schools plenty of room to define teachers’ roles broadly and leave them outside the protection of civil rights laws.
Most troublingly, the Supreme Court accepted Hosanna-Tabor’s depiction of its dispute with Perich as based on church doctrine. The back and forth between Perich and school authorities was the ordinary stuff of civil rights law: an employer reluctant to follow the law who retaliates after the employee’s resort to legal action. Not until the case went to court did Hosanna-Tabor begin arguing that devout Lutherans do not go to court, but settle any disputes within the church.
In its briefs, the government argued that religious groups cannot be allowed to opt out of the secular legal system. Religious organizations that deal with sexual abuse by clergy darkly warned that a ruling for Hosanna-Tabor would allow religious organizations — think, the Roman Catholic Church — to retaliate against internal whistleblowers. Roberts said the court could deal with cases like that “if and when they arise.”
Roberts rightly trumpets the nation’s commitment to religious freedom, but the court in other cases has been more nuanced in protecting it. Today, the nation is equally committed to protecting equal rights. Cheryl Perich may rightly wonder whether a better accommodation of the two could have been found in her case.
Monday, January 9, 2012
Don't Count on Candor From Supreme Court Nominees
When John Marshall Harlan appeared before the Senate Judiciary Committee in 1955 for confirmation to the Supreme Court, Sen. James Eastland, the race-baiting Mississippi Democrat, wanted to ask about the court’s still new school desegregation decision. But no matter how Eastland phrased the question, Harlan was giving no hints about his views on the ruling. “I should not be asked to forecast how I will decide cases when they arise before me,” Harlan said.
Two years later, William J. Brennan Jr. was pressed for his views on the legal status of the Communist Party from Sen. Joseph McCarthy, the red-baiting Wisconsin Republican. Brennan — like Harlan before him, already serving on the court under a recess appointment — similarly resisted being pinned down. “I simply cannot venture any comment whatever that touches upon any matter pending before the court,” Brennan said.
The Harlan and Brennan hearings, recalled in a new law journal article by political scientists Dion Farganis and Justin Wedeking, mark the beginning of the modern Supreme Court confirmation process. Not until the 1950s did it become standard practice for Supreme Court nominees to appear in person before the Senate Judiciary Committee for a confirmation hearing. Indeed, the Senate held no committee hearings at all until the nomination of Louis Brandeis in 1916 — and Brandeis did not himself testify in a hearing that featured sharp criticism of his progressive views.
Today, the Supreme Court confirmation process is widely criticized — indeed, mocked — as a meaningless charade. Back when he chaired the Senate Judiciary Committee, Joe Biden famously described confirmation hearings as “a Kabuki dance.” In the critics’ view, every nominee since Robert Bork’s ill-fated candor in 1987 has taken shelter in judicial ethics to turn aside any effort to learn his or her views on legal issues. “No hints, no forecasts, no previews,” Ruth Bader Ginsburg said in her opening statement in 1993.
The critique seems to assume some golden age of Supreme Court confirmations when nominees answered senators’ questions freely, giving them all the information they needed for knowledgeable votes. Farganis, a professor at Elon University in North Carolina, and Wedeking, a professor at the University of Kentucky, demonstrate in their article in Law and Society Review that the idea of the once fully forthcoming confirmation hearing is largely myth — some truth to it, but no more than some.
The researchers took on the monumental task of reading and encoding all of the confirmation hearings from Harlan through the most recent: Bush nominees John G. Roberts Jr. and Samuel A. Alito Jr. and Obama nominees Sonia Sotomayor and Elena Kagan. Nominees’ answers were categorized and then counted as “fully forthcoming,” “qualified,” “not forthcoming,” or non-responsive (“non-answer”).
The numbers confirm some decline in candor since the Bork hearings, though the very next nominee — Anthony M. Kennedy — was among the most forthcoming. But Farganis and Wedeking attribute the relatively slight decline in candor to another, even stronger trend: the increasing number of questions from senators touching on the nominees’ personal views.
Beyond the researchers’ numbers, the senators’ increased inquisitiveness can be seen quite dramatically in a law library with the printed volumes of confirmation hearings. The Harlan and Brennan hearings are printed along with four others in a single volume. The Bork hearings mark the beginning of multi-volume hearings. Bork’s spans seven volumes; two decades later, Roberts’s confirmation hearing fills eight volumes, Alito’s 10.
Some of the hearing records’ length stems from outside witnesses, but the nominee now routinely spends more time in the witness chair than in the past. The hearing for Charles Whittaker in 1957 was so perfunctory that a former Supreme Court law clerk, the future chief justice William H. Rehnquist, was prompted to write a law review article critical of the confirmation process. Byron R. White was asked six, non-challenging questions in 1962.
The court — and the confirmation process — became more politicized in the 1960s. Senators asked more and more questions, more and more confrontational — arguably fulfilling their constitutional duty to determine whether to render their “advice and consent” to the president’s choice. Equally, however, the nominee has some obligation to the judicial oath he or she hopes to take not to prejudge the issues that are to come before the court. The Supreme Court nominee’s pledge card is necessarily limited to a promise to endeavor to decide cases fairly and impartially on the basis of the evidence and the law.
This restriction does not mean that the confirmation hearings are useless. No one reviewing the confirmation testimony of Ginsburg or Stephen G. Breyer could be surprised by their moderately liberal records on the court. Both, for example, strongly endorsed the existing constitutional precedents on abortion rights. By contrast, the qualified responses that Roberts and Alito gave on Roe v. Wade foreshadowed the position they took only one term later to uphold a federal ban on so-called partial birth abortions in a decision that undercut one of Roe’s major premises.
As with democratic government itself, the process is not perfect. But the process gives senators enough information to make a meaningful choice whether to confirm a nominee or not. Senators can probe; nominees can duck. And the justice who seemingly departs from his or her confirmation statements can at least be held accountable in the court of public opinion. Critics who find this unsatisfactory yearn for some ideal that cannot exist — and never has.
Two years later, William J. Brennan Jr. was pressed for his views on the legal status of the Communist Party from Sen. Joseph McCarthy, the red-baiting Wisconsin Republican. Brennan — like Harlan before him, already serving on the court under a recess appointment — similarly resisted being pinned down. “I simply cannot venture any comment whatever that touches upon any matter pending before the court,” Brennan said.
The Harlan and Brennan hearings, recalled in a new law journal article by political scientists Dion Farganis and Justin Wedeking, mark the beginning of the modern Supreme Court confirmation process. Not until the 1950s did it become standard practice for Supreme Court nominees to appear in person before the Senate Judiciary Committee for a confirmation hearing. Indeed, the Senate held no committee hearings at all until the nomination of Louis Brandeis in 1916 — and Brandeis did not himself testify in a hearing that featured sharp criticism of his progressive views.
Today, the Supreme Court confirmation process is widely criticized — indeed, mocked — as a meaningless charade. Back when he chaired the Senate Judiciary Committee, Joe Biden famously described confirmation hearings as “a Kabuki dance.” In the critics’ view, every nominee since Robert Bork’s ill-fated candor in 1987 has taken shelter in judicial ethics to turn aside any effort to learn his or her views on legal issues. “No hints, no forecasts, no previews,” Ruth Bader Ginsburg said in her opening statement in 1993.
The critique seems to assume some golden age of Supreme Court confirmations when nominees answered senators’ questions freely, giving them all the information they needed for knowledgeable votes. Farganis, a professor at Elon University in North Carolina, and Wedeking, a professor at the University of Kentucky, demonstrate in their article in Law and Society Review that the idea of the once fully forthcoming confirmation hearing is largely myth — some truth to it, but no more than some.
The researchers took on the monumental task of reading and encoding all of the confirmation hearings from Harlan through the most recent: Bush nominees John G. Roberts Jr. and Samuel A. Alito Jr. and Obama nominees Sonia Sotomayor and Elena Kagan. Nominees’ answers were categorized and then counted as “fully forthcoming,” “qualified,” “not forthcoming,” or non-responsive (“non-answer”).
The numbers confirm some decline in candor since the Bork hearings, though the very next nominee — Anthony M. Kennedy — was among the most forthcoming. But Farganis and Wedeking attribute the relatively slight decline in candor to another, even stronger trend: the increasing number of questions from senators touching on the nominees’ personal views.
Beyond the researchers’ numbers, the senators’ increased inquisitiveness can be seen quite dramatically in a law library with the printed volumes of confirmation hearings. The Harlan and Brennan hearings are printed along with four others in a single volume. The Bork hearings mark the beginning of multi-volume hearings. Bork’s spans seven volumes; two decades later, Roberts’s confirmation hearing fills eight volumes, Alito’s 10.
Some of the hearing records’ length stems from outside witnesses, but the nominee now routinely spends more time in the witness chair than in the past. The hearing for Charles Whittaker in 1957 was so perfunctory that a former Supreme Court law clerk, the future chief justice William H. Rehnquist, was prompted to write a law review article critical of the confirmation process. Byron R. White was asked six, non-challenging questions in 1962.
The court — and the confirmation process — became more politicized in the 1960s. Senators asked more and more questions, more and more confrontational — arguably fulfilling their constitutional duty to determine whether to render their “advice and consent” to the president’s choice. Equally, however, the nominee has some obligation to the judicial oath he or she hopes to take not to prejudge the issues that are to come before the court. The Supreme Court nominee’s pledge card is necessarily limited to a promise to endeavor to decide cases fairly and impartially on the basis of the evidence and the law.
This restriction does not mean that the confirmation hearings are useless. No one reviewing the confirmation testimony of Ginsburg or Stephen G. Breyer could be surprised by their moderately liberal records on the court. Both, for example, strongly endorsed the existing constitutional precedents on abortion rights. By contrast, the qualified responses that Roberts and Alito gave on Roe v. Wade foreshadowed the position they took only one term later to uphold a federal ban on so-called partial birth abortions in a decision that undercut one of Roe’s major premises.
As with democratic government itself, the process is not perfect. But the process gives senators enough information to make a meaningful choice whether to confirm a nominee or not. Senators can probe; nominees can duck. And the justice who seemingly departs from his or her confirmation statements can at least be held accountable in the court of public opinion. Critics who find this unsatisfactory yearn for some ideal that cannot exist — and never has.
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