Supreme Court Should Invalidate Electoral College

      "The electoral college ought to have been struck from the Constitution or invalidated by the Supreme Court long ago," I argue in an op-ed published in theLos Angeles Times [Dec. 16]. "Donald Trump’s electoral college victory — despite Hillary Clinton’s lead of more than 2.5 million in the popular vote — is only the latest proof that it’s the wrong way to choose a president."
      My original submission was longer and more explicit in setting out the legal grounds and political rationale. Here, for your further consideration. I will have more to say in coming days on fixing the flaws in the United States' imperfect Constitution.

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      The Electoral College is unconstitutional.
      It is unconstitutional because it was born out of a morally offensive political decision aimed at preserving the status of slavery in the South.
      It is unconstitutional because it has never functioned in the supposedly deliberative manner that its authors depicted in selling it to voters during the ratification debates.
      It is unconstitutional because it conflicts with the “one person, one vote” rule that the Supreme Court has applied for the past 50 years to elections for every other elective office in local, state or federal governments.
      It is unconstitutional because under current political conditions it does not operate as its defenders claim to incentivize presidential candidates to campaign in all 50 states, from the biggest to the smallest.
      And it falls to the Supreme Court to rule the system unconstitutional because its defects are safeguarded from a constitutional amendment by the effective veto power of the small states that supposedly benefit from the system.
      Start at the Constitutional Convention in Philadelphia in 1787, where Pennsylvania’s James Wilson proposed direct election of the president only to be shot down by the slave-owning Virginian James Madison. As Yale’s distinguished constitutional law scholar Akhil Amar has recently explained, Madison demurred because Northern states allowed voting more “diffusively” than states in the South.
     The South’s non-voting slaves would have counted for nothing in a popular-vote system. But slaves increased the electoral votes from the South and thus its political clout because the Three-Fifths Clause counted them for apportionment in the House of Representatives.
     The ink was barely dry on the Constitution when the Twelfth Amendment was ratified in 1804 to replace the harebrained provision that the presidential runner-up serve as vice president. Ever since, the major political parties have fielded competing presidential and vice-presidential tickets, and the electors have been relegated to voting according to the popular vote in their respective states.
     The Constitution never uses the phrase “Electoral College,” nor have the electors ever met as a collective body. The Constitution specifies that they cast their ballots in their respective states. But Alexander Hamilton sold the system to voters in Federalist No. 68 on the ground that the president would be chosen by “men [sic] most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation . . . .”
      Today, electors’ names do not even appear on most states’ ballots. The occasional elector who votes differently from the popular vote is not praised not for deliberation but criticized as “faithless.” For better or worse, none of the 157 faithless electors in U.S. history before the 2016 contest, as compiled in a Wikipedia entry, have affected the outcome of a presidential election. The Supreme Court ruled in 1952 that states can punish a faithless elector after the fact but cannot prevent electors from casting their votes as they see fit.
      The Supreme Court ruled in 1964 that states cannot use an unevenly weighted voting system in choosing statewide officeholders. The 8-1 ruling in Wesberry v. Sanders struck down Georgia’s county unit system, which gave rural voters significantly greater weight than voters in urban counties.
      Justice William O. Douglas acknowledged, with a critical footnote, the constitutional basis for the Electoral College, but he concluded that states had to give all voters equal weight. “The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing — one person, one vote,” he wrote.
      If states are foreclosed from giving rural voters more weight than urban voters in choosing governors or senators, the federal government should be equally foreclosed from giving voters in red-state Wyoming or blue-state Rhode Island more weight in choosing a president than those in blue-state California or red-state Texas. The court held in the District of Columbia school desegregation case in 1954 that the Fifth Amendment, ratified three years after Article II with its provisions for electing the president,  includes an equal protection component applicable to the federal government.
      Supporters of the Electoral College fall back on a political defense. In a pure popular-vote system, they warn that candidates would pay no attention to the least populous states. Nowadays, however, with most states well defined as either Democratic blue or Republican red, candidates devote most of their time and resources to only a dozen or so “battleground states.” Today, every Republican voter in California or Rhode Island counts for nothing, just like every Democratic voter in Texas or Wyoming.
      Supporters also argue, in effect, that the system works, almost all the time. The popular-vote winner has been denied the presidency only five times in the 54 elections since ratification of the Twelfth Amendment, including most recently Al Gore in 2000 and Hillary Clinton in 2016. A 9 percent failure rate is shy of an A-plus grade. And of the popular-vote-loser presidents in the 19th century, none is viewed as having been particularly successful in office: John Quincy Adams in 1824, Rutherford Hayes in 1876, and Benjamin Harrison in 1888.
      It would be quite a stretch for the Supreme Court to rule the Electoral College unconstitutional. But it was a stretch for the court to rule legislative and congressional malapportionment unconstitutional in the 1960s. The country is better off for the court’s decision to wade into what Justice Felix Frankfurter had previously called “the political thicket.”
      Malapportioned legislatures could not be expected to remedy the defect, so the Supreme Court stepped in when petitioned by disadvantaged voters from, among others, my home state of Tennessee. As a remedy, the court did not void elections. It only required legislatures to redraw districts and to hold subsequent elections according to the redrawn districts.
     If petitioned by undercounted voters in populous states, the court similarly need not nullify the results of a presidential election to get rid of the Electoral College. It need only require that a popular-vote system be established by the time of the next. Voters of underweighted states could file suit now and satisfy standing under the doctrine that their claimed injury is “capable of repetition but evading review.”
      The 15 states with five or fewer electoral votes — roughly half of them red and half blue — would be enough to prevent the three-fourths majority needed to adopt a constitutional amendment for a popular-vote system. A dozen or so states have signed on to the National Popular Vote Compact as a way to circumvent the Electoral College by pledging to cast their electoral votes for the popular-vote winner if joined by states with an electoral majority. Under the Supreme Court’s 1952 decision, however, the compact would be unenforceable.
      The U.S. Constitution has been a model for emerging democracies, but in more than 200 years no country has followed the Framers’ model for choosing its chief executive. The Constitution envisioned a system of self-government and, over time, its letter and spirit have been interpreted as embodying political equality as part of that system.
      The court has recognized in other contexts that the meaning of the Constitution can change with changing times. The Framers “knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” Justice Anthony M. Kennedy wrote in nullifying anti-sodomy laws in Lawrence v. Texas (2003). “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

Court: No Insider Trading for Friends, Family

      Supreme Court justices routinely caution against drawing any conclusions about the court's views when it declines to review a lower court decision at the behest of the losing side in the case. Even so, the advocates and experts worried about insider trading felt a frisson of disappointment a year ago when the court declined to hear the government's appeal of a decision by the federal appeals court in New York making it harder to prosecute those cases.
      The disappointment hardened into anxiety a few months later when the court agreed to hear an appeal in a California case by a defendant who had cited the New York decision in an unsuccessful effort to overturn his conviction. Court watchers saw the decision to hear the case, Salman v. United States, as an indication that justices across the ideological spectrum might want to narrow the expansive reading of the broadly worded insider trading laws.
      For insider trading hawks, however, the story has a happy ending. In a unanimous decision last week [Dec. 6], the court held that it is a crime to trade on nonpublic information passed on by an insider relative or friend even if the so-called "tipper" gets no money, nothing but good will, for the leak. The ruling upheld the conviction of Bassam Salman, who made more than $1.5 million in profits by trading on the basis of tips about pending health care mergers and acquisitions passed on by his brother-in-law, an investment banker at Citigroup in San Francisco.
      In its decision in the New York case, the Second U.S. Circuit Court of Appeals had ruled that insider trading was not illegal unless the tipper received "a potential gain . . . of a pecuniary or similarly valuable nature." The hedge fund manager defendants in United States v. Newman had picked up tips from loose-lipped Wall Street bankers, who leaked valuable tips about future earnings reports from high-tech companies and were never prosecuted themselves.
      The prosecutors never established the bankers' motives for the leaks. Perhaps they felt a sense of self-importance as they showed they were in the know. Or maybe they even hoped for some kind of payback, in good will or maybe in U.S. currency. Under the Second Circuit's decision, however, they were not criminals and neither were the "tippees" who used the information to outsmart the general trading public.
      The New York case was brought by the office of U.S. Attorney Preet Bahrara, the prosecutorial scourge of Wall Street who reportedly has agreed to remain in office under the next administration. The Second Circuit said that Bahrara had prosecuted the hedge fund managers under "a doctrinal novelty," but in its decision last week the Supreme Court specifically said that Newman was "inconsistent" with the high court's underlying precedent.
      Admittedly, the court's foundational decision in Dirks v. Securities and Exchange Commission (1983) is less than crystal-clear. Insider trading liability attaches, the court held, only if the tipper receives "a personal benefit" from breaching a fiduciary duty to keep information confidential. The petitioner in that case, investment broker Raymond Dirks, won a reversal of his censure by the SEC for telling institutional investors about apparent fraud by a big insurance company.
      In the new decision, the Supreme Court reaffirms Dirks but without adding much by way of clarity. "Dirks makes clear that a tipper breaches a fiduciary duty by making a gift of confidential information to 'a trading relative,'" Justice Samuel A. Alito Jr. wrote in the 12-page opinion upholding the Ninth Circuit's decision to affirm Salman's convictions.
      The crime in this case started innocently enough. Maher Kara followed the health care industry for Citigroup and started sharing information about the industry with his older brother Mounir Kara when their father was battling cancer. One thing led to another: Mounir (known as Michael) started trading on the information and he then started feeding the information to Salman, a friend who eventually married Maher's sister.
      Maher Kara eventually figured out that his brother and Salman were trading on the information, but he did not stop the leaks. Eventually, both Kara brothers pleaded guilty to insider trading and testified at Salman's 2013 trial, where he was convicted on multiple counts and sentenced to three years' imprisonment and $730,000 in restitution.
      In New York, federal prosecutor Bharara expressed approval of the new decision. “The court stood up for common sense and affirmed what we have been arguing from the outset — that the law absolutely prohibits insiders from advantaging their friends and relatives at the expense of the trading public,” Bharara said in a statement emailed to news media. “Today’s decision is a victory for fair markets and those who believe that the system should not be rigged.”
      Interestingly, the court heard from an array of groups on Salman's side and only two backing the government about the harm to the public from insider trading. In its amicus brief, the libertarian Cato Institute argued that the "personal benefit" theory is "vague" and "unpredictable" and that it actually "chills beneficial economic activity" by leaving insiders uncertain about the legality of disclosing market-relevant information.
      Alito's spare opinion rehearses none of that debate. But the court deserves credit for reaffirming a sensible rule, albeit difficult to enforce, to limit insiders' ability to rig the market for the benefit of friends and family.

Court Set to Overturn Texas Death Penalty Cases

      Texas leads the nation in executions by a country mile, but the state seems on a path to seeing two of its death penalty cases reversed by the Supreme Court following separate arguments in the first two months of the court's new term. The blatant errors in the two cases highlight again the dismal record by Texas state courts and the federal appeals court for Texas in protecting constitutional rights in cases that call for additional not less scrutiny on appellate review.
      Bobby Moore appears likely after arguments last week [Nov. 29] to get a new chance to be spared execution under the Supreme Court's decision in 2002 prohibiting the death penalty for defendants with severe intellectual disabilities. In upholding the sentence, the Texas Court of Criminal Appeals relied on an old and now disfavored definition of what used to be called "mental retardation."
      As Justice Anthony M. Kennedy aptly remarked during the argument in Moore v. Texas, the state's approach seems designed to limit intellectual disability claims in the face of "an almost uniform medical consensus" on a somewhat broader definition. Texas Solicitor General Scott Keller tried to disagree, but Kennedy and Justice Elena Kagan both rejected his defense. "Justice Kennedy is right about how they operate," Kagan said, "and how they were intended to operate."
      In earlier arguments [Oct. 5], Duane Buck appeared likely in Buck v. Stephens to win a new chance to be spared execution by proving that he was prejudiced by testimony from a supposed expert linking black defendants to high degrees of "dangerousness." It was Buck's own defense lawyer who put on the testimony, prompting the law-enforcement minded Justice Samuel A. Alito Jr. to describe the course of the penalty-phase hearing as "indefensible."
      Buck's lawyer, Jerry Guerinot, has had 20 of his capital case defendants sentenced to death — a record highlighted in a New York Times profile with the headline "A Lawyer Best Known for Losing Capital Cases." In a separate case, the Texas attorney general's office has confessed error in use of the expert's race-as-dangerousness study. Even so, the Fifth U.S. Circuit Court of Appeals, which has jurisdiction over Texas and two other southern death penalty states, refused Buck the "certificate of appealability" needed to challenge the death sentence in a federal habeas corpus proceeding.
      At the Supreme Court, Kagan noted statistics from the brief by Buck's new lawyer, Christina Swarms of the NAACP Legal Defense Fund, that the Fifth Circuit denies permission to appeal in capital cases about 60 percent. By contrast, the Eleventh Circuit, which has jurisdiction over Florida and two other death penalty states in the South, denies permission about 6 percent of the time. "It does suggest," Kagan said, that "one of these two circuits is doing something wrong."
      With lenient judicial review like that, it is perhaps not surprising that Texas has been the national leader in executions since capital punishment was reinstituted under the Supreme Court's decision in 1976. The Death Penalty Information Center counts 538 executions in Texas during the period, more than one-third of the total number of 1,440 throughout the United States.
      The pace of executions is slowing nationwide and in Texas too. The death penalty "is withering on the vine," Stephen Shapiro, outgoing national legal director of the American Civil Liberties Union, remarked at the Supreme Court last week. As the number falls, Texas's proportionate share has increased. The Lone Star State's 13 executions in 2015 were almost half the national total of 28. For 2016, Texas's seven executions so far are again more than one-third the national total of 18.
      The two cases at the Supreme Court differ in terms of inviting extra-legal sympathy for the defendants. Guilt is undisputed in either case. Buck's offense is grisly and premeditated, Moore's less so on both counts.
      Buck, who is African American, was convicted of murder in the 1995 killing of his former girlfriend and a new friend of hers while her children watched. However gruesome the circumstances, a capital case with a black defendant demands extra attention to substantive and procedural rights in the light of the death penalty's long history of racial discrimination in the United States.
      Moore was convicted, in 1980 at age 21, of murder in the killing of a store clerk during a botched robbery in Houston. Representing Moore at the Supreme Court, the prominent Washington attorney Clifford Sloan told the justices that Moore's intellectual limitations had been evident since the age of 13 when he was unable to understand "the days of the week, the months of the year, the seasons, how to tell time, the principle that subtraction is the opposite of addition."
      The Supreme Court left it up to the states to define intellectual disability in its decision in Atkins v. Virginia (2002) prohibiting the execution of what were then called "mentally retarded" defendants. But in 2014 the Court ruled in Hall v. Florida that states cannot use a bright-line IQ test threshold in determining intellectual disability in capital cases.
      The standards now adopted by professional associations look separately at deficits in intellectual capacity and in what is called "adaptive behavior" -- roughly, the ability to get along in day-to-day life. In Moore's case, however, Texas applied the state's old standards that allowed disregarding intellectual deficits in the absence of adaptive deficits. Keller insisted that Texas's approach was "well within the national consensus," but Kennedy and the liberal justices appeared from the arguments ready to tell Texas to get with the times.

Opportunity for Justices on Partisan Gerrymandering

      Wisconsin Republicans gained control of the state legislature and the governor's office in 2010 for the first time in 40 years and then set about drawing up legislative districts to secure a Republican majority for the rest of the decade. As the legislature was about to act, an aide to the Senate's Republican leader told the GOP caucus they had "an opportunity and an obligation to draw these maps that Republicans haven’t had in decades."

      The legislative districts have now been found by a federal court to have been designed to benefit Republicans and to have had that intended effect. That much is obvious from election statistics. Republicans drew 48.6 percent of the votes cast for Assembly candidates in 2012 but won 60 of the chamber's 99 seats. Two years later, Republicans won 63 Assembly seats with 52 percent of the statewide vote.

      Democratic voters challenging the redistricting have now won a split ruling from a three-judge federal district court that the redistricting amounts to an unconstitutional political gerrymander. The new map was "intended to burden the representational rights of Democratic voters throughout  the decennial period by impeding their ability to translate their votes into legislative seats," Judge Kenneth Ripple wrote for the court.

      Both the plaintiffs and the court faced the difficulty that up till now the Supreme Court has failed to find a basis to decide when partisan gerrymandering goes too far. In three decisions over the span of 20 years, the court has recognized constitutional claims against political gerrymandering but upheld each of the challenged plans for lack of any agreed-on standard to apply.

      To remedy that gap, the plaintiffs secured the services of an experienced election law litigator now at the University of Chicago Law School. Nicholas Stephanopoulos, just granted tenure at Chicago after several years previously at the Washington law firm Jenner & Block, believes that he and an academic colleague have found the silver bullet needed to establish a legal limit on partisan manipulation in redistricting.

       The answer proposed in a law journal article by Stephanopoulos and his coauthor, the California political scientist Eric McGhee, is appealingly straightforward. They created a quantifiable datum — they call it the "efficiency gap" — to compare how efficiently the respective political parties use their voters to win legislative seats.

      In brief, think of the winning party's margin of victory in any district beyond a one-vote plurality as "wasted" votes -- more than needed to win the seat. Votes cast for a losing candidate are wasted by the other party. Add up all the wasted votes — either "surplus" votes or "lost" votes — for each party, calculate the difference, and divide by the total number of votes cast. A low figure, say 2 percent, indicates a district map of relative partisan fairness, but Stephanopoulos and McGhee argue that a figure above some threshold — they suggest 8 percent — goes too far and ought to be deemed unfair enough for a court to rule the redistricting plan presumptively invalid. Based on this measure, they say partisan gerrymandering is worse now than ever in the elections they studied.

      Stephanopoulos and McGhee argued that their test was better than what has been called the "partisan symmetry" test. Under that approach, a redistricting plan survives challenge as a partisan gerrymander politically if each party would win the same number of legislative seats for a particular vote percentage as the other party would win if it had received the same percentage of the vote.

      Five justices indicated support for this approach in the most recent decision, Latin American League of United Citizens v. Perry (2006), but in the main opinion Justice Anthony M. Kennedy said the plaintiffs had offered no way to measure how much asymmetry was too much. Stephanopoulos and McGhee say their approach has the advantage of using actual election data instead of a hypothetical election and they go one step further by suggesting a threshold to define how much is too much.

       The majority judges in the Wisconsin case were convinced that the 11.69 percent efficiency gap was too much. Lawyers for the state argued that the Republicans' advantage stemmed from political geography: Democrats are concentrated in urban areas — so more "surplus votes" — while Republicans are dispersed more widely in suburban and rural areas. In his opinion, Ripple, a senior circuit judge appointed by President Ronald Reagan in 1985, acknowledged the point but said it gave Republicans only "a modest advantage," not the lopsided edge they achieved with the maps being challenged.

      The two other judges split along partisan lines. Barbara Crabb, a senior judge named by President Jimmy Carter in 1979, joined Ripple's opinion, while William Griesbach, named by President George W. Bush in 2002, dissented. In his dissent, Griesbach argued that the efficiency gap "oversimplifies political injury," but he appeared to offer no alternate approach.

      Stephanopoulos got the unusual opportunity for a professor to put his academic theory into practice after a fellow election law scholar referred him to the Wisconsin plaintiffs to represent them. The state plans to appeal the ruling to the Supreme Court. Stephanopoulos welcomes the chance. The case, he says, would give the Supreme Court "a golden opportunity to put a stop to one of the most pernicious and undemocratic practices in American politics today." As always, court watchers will be watching Kennedy, but the case is unlikely to reach the justices before next fall.

With Sessions as AG, a Setback for "Lady Justice"

      A lawyer with the U.S. solicitor general’s office will stand before the U.S. Supreme Court next month in support of voting rights for African Americans in Virginia legislative districting. On behalf of the U.S. government, the lawyer will back the argument by minority voters that Virginia is violating the Voting Rights Act and the Constitution by packing African American voters into a dozen legislative districts in the Richmond area instead of dispersing them more widely to increase their overall political influence.
      The Justice Department has played an important role for most of the past 60-plus years in supporting long overdue moves toward racial justice. The government’s role was never more important than in 1953 when a new Republican attorney general decided to support the NAACP Legal Defense Fund’s plea for the Supreme Court to rule racial segregation in public education unconstitutional.
      The Justice Department has proved less supportive of racial justice in later Republican administrations on such issues as desegregation, affirmative action, and voting rights. But now President-elect Donald Trump has chosen as his attorney general an Alabama senator with a record of racially insensitive comments and overt opposition to laws and policies aimed at promoting the cause of justice.
      Based on Sessions’ views, the Justice Department under his leadership seems likely to do little to advance civil rights for minorities or women. Sessions’ statements suggest he will prefer voter suppression to voting rights, will ease federal oversight of racial profiling by local police departments, and will shelve efforts to advance LGBT rights. And a Sessions Justice Department seems very unlikely to promote diversity in new appointments to the federal bench, following the Obama administration’s record-setting numbers of women, minorities, and LGBT individuals to the federal courts.
      Trump’s nomination of Alabama’s Jeff Sessions promises to provoke a fierce confirmation fight that will test Democrats’ determination to hold Trump accountable if he converts divisive campaign rhetoric into divisive government policy. It will also test whether Republican senators, whether or not they supported Trump’s election, will go along when he picks people from the party’s incendiary wing for top-level positions in the new administration.
      Thirty years ago, Sessions suffered what is still for him a grievously embarrassing snub when the Senate Judiciary Committee rejected President Ronald Reagan’s nomination of him for a federal court judgeship in his home state of Alabama. With a Republican majority, the committee voted 10-8 to reject the nomination because of testimony about Sessions’ racially insensitive remarks while U.S. attorney in Alabama. Sessions was quoted as having described a white lawyer litigating a voting rights case as “a disgrace to his race” and as having called the ACLU and the NAACP “un-American” and “communist-inspired” because they “forced civil rights down the throats of people.”
      Sessions tried to discount or deny the accusations. “I am not a racist,” he told the committee back in June 1986. “I am not insensitive to blacks.” He pooh-poohed the slurs on the ACLU and NAACP. “I meant no harm,” he told the committee.
      Two moderate Republicans — Maryland’s Charles Mac Mathias and Pennsylvania’s Arlen Specter — joined the committee’s eight Democrats in voting to reject the nomination. With Specter changing his vote, the committee then deadlocked 9-9 on a motion to send the nomination to the floor anyway but without a recommendation. Alabama’s Democratic senator Howell Heflin was seen as casting the decisive vote to kill the nomination. He said there were “reasonable doubts” about Sessions’ ability to be “fair and impartial.
      Sessions went on to win election as state attorney general and then in 1996 as U.S. senator. He joined the Judiciary Committee and is reported to view his service as member and now chairman as vindication of sorts for the earlier setback at the committee’s hands.
      The new nomination is Trump’s payback for Sessions’ having been the first senator, in February, to endorse Trump’s candidacy. Trump made no announcement, but he surely is impressed by Sessions’ fiercely anti-immigrant stances. Civil rights groups immediately exploded in fierce opposition to the nomination and cited a host of other actions or statements by Sessions.
      The Lawyers Committee on Civil Rights noted that Sessions had called the federal Voting Rights Act “intrusive” and had celebrated the Supreme Court’s decision in 2013 to nullify the law’s critical preclearance provision. The Human Rights Campaign pointed to Sessions’ zero voting record on LGBT rights, including his votes against repeal of “don’t ask, don’t tell” and his opposition to the bill to prohibit anti-LGBT discrimination in the workplace. He also opposed the Supreme Court’s marriage equality decision. When asked about the possibility of a gay Supreme Court justice, Sessions replied that the appointment would be “a big concern.”
      Two Democratic administrations—Clinton’s and Obama’s—made extensive use of the 1993 law allowing the Justice Department to sue police departments for “policies and practices” that violate minorities’ constitutional rights. The Obama administration moves have been important in answering the demands for racial justice from, among others, the “Black Lives Matter” movement. Sessions is unimpressed. “It is clear,” he remarked “that police officers all over America are concerned” about those moves.
      The Justice Department’s shield proclaims, in Latin, that its lawyers “prosecute in the name of Lady Justice.” If Sessions is confirmed, he will come to office with strong doubts about his commitment to that lofty ideal.

Holding Banks to Account for Foreclosure Crisis

      For all its legal firepower, the federal government has precious little to show for its efforts to hold the nation’s banks accountable for all the harm they did in causing the Great Recession of 2008-09. A few dozen executives from mid-level banks have gone to prison, yes, but the top-ranking executives from the “too big to fail” banks all escaped prosecution even as their companies agreed to pay billions in civil fines for improper foreclosure practices.
      Several of the nation’s big cities, however, have been trying to hold banks responsible for the harm inflicted in particular on African American and Latino neighborhoods with predatory lending targeted to minority home buyers. Now, the Supreme Court is set to decide whether cities have the legal standing needed to collect millions of dollars in damages from the banks for racial discrimination in violation of the federal Fair Housing Act.
      The justices’ questions during the hour-long arguments in Bank of America v. City of Miami on Tuesday [Nov. 8] seemed to indicate a ruling to green-light Miami’s suits against two of the nation’s biggest banks: Bank of America and Wells Fargo. Three Supreme Court decisions dating from the 1970s allow suits under the Fair Housing Act not only by would-be home buyers or renters but also by neighbors who are denied the benefits of interracial associations or by municipalities that are robbed of “racial balance and stability,” as the court put it in Gladstone, Realtors v. Village of Bellwood (1979).
      The court’s liberals seemed comfortable with applying those precedents to allow Miami to proceed with its suits despite concerns from two justices, Chief Justice John G. Roberts and Justice Anthony M. Kennedy, about how to limit the scope of the banks’ potential liability. The federal appeals court for Florida ruled in favor of the city’s suit, so the city would win even if the eight-justice Supreme Court were to split 4-4.
      The city of Miami, along with its neighboring municipalities in South Florida, was one of the epicenters of the foreclosure crisis that helped take the nation into recession. At the height of the crisis, South Florida had 172,894 homes in some stage of foreclosure in 2009. The worst of the crisis has passed, but South Florida was still ranked fifth highest in foreclosures last year among the nation’s metropolitan areas.
      Foreclosures need to be understood as more than personal setbacks for the forced-from-their-home homeowners. They are also disasters for neighborhoods left with the blight of empty, boarded-up houses and for municipalities deprived of property tax revenues and burdened with increased costs of law enforcement and social services.
      In its complaints against the banks, filed in December 2013, the city sought to show that the foreclosures resulted not from natural economic causes but from deliberate business strategies adopted by the banks. Backed up by affidavits from confidential bank employee witnesses, the city alleged that the banks targeted minority borrowers for discriminatory, high-cost loans that included terms likely to prove unaffordable. The banks then induced foreclosures by refusing to refinance the loans on fair and affordable terms.
      Loan officers got bonuses for writing loans that the city characterized in its complaints as “predatory.” Those loans included features such as interest rates at least three percentage points above the federal benchmark, interest-only loans, balloon loan payments, loans with prepayment penalties, and adjustable mortgages with “teaser rates” that increased by more than 6 percent over the life of the loan. The city alleged that minority borrowers were more likely to be offered these kinds of loans than white borrowers with equal creditworthiness: one-and-a-half times more likely for Bank of America, more than four times more likely for Wells Fargo. .
      The city used statistical studies to show that the results were just as could have been predicted: foreclosures by the taken-advantage-of minority borrowers. For Bank of America, nearly one-third of its loans to minority borrowers (32.8 percent) resulted in foreclosures but only 7.7 percent of its loans in predominantly white neighborhoods. For Wells Fargo, 24 percent of its loans to minority borrowers resulted in foreclosures, roughly 4 percent for white borrowers.
      The banks have yet to answer these allegations in detail because they have sought to dismiss the suits altogether as unwarranted extensions of the legal standing doctrines recognized in the Supreme Court precedents. The federal district court judge hearing the case agreed with the banks, but the Eleventh U.S. Circuit Court of Appeals reversed his decisions in emphatic, unanimous decisions in the two cases.
      At the Supreme Court, former acting solicitor general Neal Katyal represented the banks by warning against an “unlimited theory of liability” that would award compensation for harms “several steps removed” from the alleged discriminatory conduct. Representing the city, Robert Peck, president and founder of the private Center for Constitutional Litigation in Washington, forcefully countered that the banks’ policies had caused it to lose the “benefits . . . that come with an integrated community free from housing discrimination.”
      A legal ruling for the city would do no more than set the stage for a trial, where it would have to prove its allegations and connect its injuries to the banks’ policies. Millions of dollars from the banks would go only so far in undoing the damage the city has suffered, but it would be a significant victory for corporate accountability and racial justice.

Trump's Win Saves High Court's Conservative Majority

      The Supreme Court’s generally conservative orientation is safe for the next four years and probably longer. That is the upshot of Donald Trump’s stunning upset victory in the presidential election for the third branch of the federal government, with the other two branches also in Republican control.
      Democrats’ hopes for a liberal majority on the Supreme Court were dashed. Worse, the Democrats’ basic premise that Republicans would pay a price for obstructing President Obama’s nomination of veteran federal appeals court judge Merrick Garland for the high court was proven to be wrong, flatly wrong.
      For eight months, Democrats and their liberal and progressive allies had rallied in Washington and in state capitals around the country chanting to Republican senators, “Just do your job.” On Tuesday, however, only two incumbent Republican senators were defeated, including one, Illinois’s Mark Kirk, who had favored a hearing and vote on the Garland nomination.
      Among the other Republicans targeted in the campaign, New Hampshire’s Kelly Ayotte appears to have been defeated by Democrat Maggie Hassan by a razor-thin margin of 700 votes. But Pennsylvania’s Patrick Toomey and North Carolina’s Richard Burr, among others, won re-election handily as their battleground states went into the Trump column.
      Meanwhile, exit polls indicated that Supreme Court appointments were a more important factor in the presidential election than in either 2008 or 2012 and were somewhat more important for Trump voters than for those voting for Hillary Clinton. The “Supreme Court important” voters appear to have split almost 3-to-2 for Trump.
      Americans born since 1969 have never known a Supreme Court with a majority of liberal justices. Admittedly, Warren Court holdovers helped provide the crucial votes for two final bursts of liberal activism: the 1972 decision to abolish capital punishment and the 1973 abortion rights decision, Roe v. Wade.
      Republican-appointed moderates helped forge the majorities in those two cases, but conservatives gradually gained their footing in the 1970s and then solidified their control with new appointments in the 1980s. The court has moved to the right under three successive Republican-appointed chief justices: Warren E. Burger, William H. Rehnquist, and, now, in his 11th term, John G. Roberts Jr. The court’s jurisprudence has shifted to the right on an array of issues, including abortion regulations, affirmative action, church-state relations, consumer and worker rights, criminal law, and states’ rights vis-à-vis the federal government.
      True conservative activists view this history differently as one of successive defeats and disappointments. Among many examples, they cite as the most grievous the two Roberts Court decisions upholding the Affordable Care Act, with Roberts in the majority, and the 5-4 decision recognizing marriage equality for same-sex couples, with the moderate Republican Anthony M. Kennedy providing the critical fifth vote.
      The court would have tipped somewhat to the left if Garland, a moderate liberal in 19 years on the D.C. Circuit, had won confirmation to succeed the conservative lion Antonin Scalia after his death in February. But on the very day of Scalia’s death, Senate Majority Leader Mitch McConnell audaciously vowed to hold the vacancy open until after the presidential election.
      McConnell’s tactic succeeded, and sets an ominous precedent for the next time a Supreme Court vacancy occurs with the White House and Senate in opposite political hands. Despite a somewhat narrowed 52-48 majority, Republicans still control the Senate for the next two years. And Democrats will be challenged just to hold ground in 2018 as they will be defending 25 Senate seats compared to only eight for Republicans.
      Trump released a list of potential Supreme Court nominees back in May, at a time when many conservatives doubted his ideological bona fides. The list, later expanded to 20 but now pulled from Trump's web site, consisted of Republican-appointed judges from federal or state courts, all of them regarded by court watchers as fairly reliable conservatives.
      The eight federal circuit court judges on the list include, for example, the Tenth Circuit’s Timothy Tymkovich, who wrote that court’s 5-3 decision in the Hobby Lobby case allowing religiously-motivated private employers to get out of the Obamacare’s contraception mandate. The oldest of the group at age 60, the Coloradan Tymkovich might be passed over for someone younger who could be counted on to serve for a quarter-century or longer.
      Among nine state supreme court justices, Texas’s Don Willett is the most visible, thanks to the libertarian persona he projects through his judicial opinions and his popular Twitter account. Other state justices include Michigan’s Joan Larsen, an ex-Scalia law clerk who spoke at a memorial for the late justice in Washington in the spring.
      Before Trump’s upset victory, political Washington was speculating whether he might win lame-duck confirmation to guard against the risk of Hillary Clinton’s picking a more liberal justice if elected. With that contingency off the table, Garland is now likely to go down in history as the most qualified Supreme Court nominee in history never to win confirmation.
      Even with a Trump justice to fill the vacancy, the new president will fall short of the goal he laid out in the campaign to try to overturn the marriage equality and abortion rights decisions. With four liberal justices and Kennedy, those precedents are safe for now. And the liberal justices Ruth Bader Ginsburg and Stephen G. Breyer will surely defer any thoughts of possible retirement. And, as a postscript, the state votes on Tuesday in favor of the death penalty in California, Nebraska, and Oklahoma make it extremely unlikely that Kennedy will lend his vote to outlawing capital punishment altogether.