Wednesday, June 19, 2013
Common Cause this week pursued its case against the Senate filibuster at the D.C. Circuit when it filed its appellate brief, arguing that Judge Emmett G. Sullivan (D.D.C.) was wrong to dismiss the case last December and pressing its argument that the filibuster is unconstitutional. Common Cause's press release is here; the brief is here. We posted on Judge Sullivan's decision here.
Recall that Judge Sullivan dismissed the case, Common Cause v. Biden, for lack of standing and for raising a political question. In its brief, Common Cause takes on Judge Sullivan's ruling and argues that the filibuster is unconstitutional.
As to standing, Common Cause argues that House-member-plaintiffs have standing to challenge Senate Rule XXII, the cloture rule that allows a filibuster if the majority can't muster 60 votes to close debate, because the Rule allowed a minority in the Senate to effectively nullify their votes in favor of the DISCLOSE and DREAM Acts. Common Cause relies on language from Raines v. Byrd (1997), which says that "legislators whose votes . . . would have been sufficient to . . . enact a specific legislative Act have standing to sue if that legislative action . . . does not go into effect on the ground that their votes have been completely nullified" by a procedural violation of the Constitution. (In Raines, the Court held that Senator Byrd lacked standing when he mounted a facial challenge to the Line-Item Veto Act but failed to show that his vote on any specific appropriation bill had been nullified by the Act.)
Common Cause also argues that it has standing in its own right, because the filibuster of the DISCLOSE Act frustrated its core mission of campaign reform. It argues that it has standing based on its members, because they cannot learn the identities of certain campaign contributors. And it argues that the "dreamer"-plaintiffs have standing, because the filibuster of the DREAM Act denied them the benefits of that Act.
As to political question, Common Cause says that rules of Congress are justiciable, that they must be constitutional, and that "[t]here is nothing in the record of the Federal Convention indicating that the Framers intended to delegate to either house the authority to depart from the principle of majority rule . . . ." Brief at 15-16.
Finally, on the merits, Common Cause says,
Rule XXII's supermajority vote requirement is inconsistent with the rules of parliamentary practice that preceeded the adoption of the Constitution, the intent of the Framers as reflected in The Federalist Papers, the text of the Quorum and the Presentment Clauses, the exclusive list of exceptions to the principle of majority rule in the Constitution which specify when a supermajority vote is required, the provision of Article I, Sec. 3, cl. 4 that gives the Vice President the power to cast the tie-breaking majority vote when the Senate is "equally divided," and the first rules adopted by the Senate and the House immediately after ratification.
Brief at 56.
June 19, 2013 in Campaign Finance, Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Thursday, June 13, 2013
Presumably reacting to the decision of Judge Beryl Howell declaring the Supreme Court protest-ban statute, 40 USC §6135, unconstitutional which we discussed yesterday, the Court has issued a new policy, "Regulation Seven" (h/t Lyle Denniston).
This regulation is issued under the authority of 40 U.S.C. § 6102 to protect the Supreme Court building and grounds, and persons and property thereon, and to maintain suitable order and decorum within the Supreme Court building and grounds. Any person who fails to comply with this regulation may be subject to a fine and/or imprisonment pursuant to 40 U.S.C. § 6137. This regulation does not apply on the perimeter sidewalks on the Supreme Court grounds. The Supreme Court may also make exceptions to this regulation for activities related to its official functions.
No person shall engage in a demonstration within the Supreme Court building and grounds. The term “demonstration” includes demonstrations, picketing, speechmaking, marching, holding vigils or religious services and all other like forms of conduct that involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which is reasonably likely to draw a crowd or onlookers. The term does not include casual use by visitors or tourists that is not reasonably likely to attract a crowd or onlookers.
Approved and Effective June 13, 2013
Importantly, the regulation addresses several of the issues Judge Howell found relevant in her decision. First, it emphasizes "conduct" rather than simply wearing a t-shirt with a slogan or carrying a sign. However, the regulation does seem to include "speechmaking" in this broad category of "like forms of conduct." Second, the regulation requires this conduct as "reasonably likely to draw a crowd or onlookers." This emphasizes the effect, but also implies some sort of intent requirement in the "reasonably likely." Third, the regulation specifically excludes the "casual use by visitors or tourists." This would presumably exclude the t-shirt wearing preschoolers that Judge Howell referenced in her opinion, as well as the solitary person arrested for wearing a jacket that bore the phrase "Occupy Everything."
Nevertheless, the Supreme Court's reservation for itself of making exceptions and the remaining prohibition of expression of "views" could certainly prompt serious First Amendment challenges to the regulation.
As for the statute and its constitutionality, this narrower regulation may indicate some level of agreement with a conclusion that 40 USC §6135 is overbroad and unreasonable.
Wednesday, June 5, 2013
Long controversial, Judge (and former Chief Judge) Edith Jones of the Fifth Circuit Court of Appeals is now the subject of an ethics complaint filed by a constorium of persons under the Judicial Conduct and Disability Act. The complaint asks that the matter be transferred out of the Fifth Circuit.
The main allegations arise from a speech by Judge Jones at a Federalist Society event at University of Pennsylvania in February on the death penalty. Jones is alleged to have made points such as these:
*The United States system of justice provides a positive service to capital-case defendants by imposing a death sentence, because the defendants are likely to make peace with God only in the moment before imminent execution;
*Certain “racial groups like African Americans and Hispanics are predisposed to crime,” are “‘prone’ to commit acts of violence,” and get involved in more violent and “heinous” crimes than people of other ethnicities;
*Claims of racism, innocence, arbitrariness, and international standards are simply “red herrings” used by opponents of capital punishment;
*Capital defendants who raise claims of “mental retardation” abuse the system;
*The United States Supreme Court’s decision in Atkins v. Virginia prohibiting execution of persons who are “mentally retarded” was ill-advised and created a “slippery slope”;
*Mexican Nationals would prefer to be on death row in the United States rather than in prison in Mexico;
Thursday, May 30, 2013
An Eleventh Circuit panel has rendered its opinion in AFCME v. Scott regarding the Executive Order of controversial Florida Governor Rick Scott requiring drug testing of all prospective state employees and random testing of all state employees. The panel held that the Executive Order "almost certainly sweeps far too broadly and hence runs afoul of the Fourth Amendment in many of its applications."
But it also held that last year's opinion by Judge Ursula Ungaro of the Southern District of Florida that enjoined the Executive Order "also swept too broadly and captured both the policy’s constitutional applications and its unconstitutional ones."
The gist of the panel's 61 page opinion is that Supreme Court cases such as Skinner v. Ry. Labor Execs.’ Ass’n (1989) hold that some categories of state employees may be drug tested without individualized suspicion and that a court must "balance the governmental interests in a suspicionless search against each particular job category’s expectation of privacy."
Note that this is distinct from situation seeking mandatory drug testing of welfare recipients - - - an injunction against which the Eleventh Circuit affirmed earlier this year.
But the panel also spent considerable space on the State's "bold" argument that the Executive Order could "justify suspicionless drug testing of all 85,000 government employees regardless of the nature of their specific job functions." The panel was "unpersuaded," and detailed its rejections of the State's arguments.
Thus, the panel gave clear guidelines to the district judge, remanding the case for a more limited injunction against the "sweeping" Executive Order.
[image: "Florida Sunrise" via]
Thursday, May 16, 2013
The Senate Judiciary Committee today unanimously approved Deputy Solicitor General Sri Srinivasan for a slot on the D.C. Circuit. WaPo reports here. We previously posted here, with links to backgrounds and profiles.
Wednesday, May 15, 2013
The ACLU and 19 other organizations sent a letter this week to Secretary of Defense Chuck Hagel opposing the military's force-feeding hunger-striking detainees at Guantanamo Bay. According to the ACLU, 29 detainees are currently being force-fed. We previously posted on a ruling by New York's high court upholding the practice of force-feeing in New York prisons.
The military's standard operating procedures (SOP) on fasting and force-feeding changed just recently (published on Al Jazeera), loosening protections against force-feeding. (The earlier SOP is here.) Most notably, the recent changes to the SOP charge the military commander of the base, not a medical doctor, with determining who is a hunger striker.
Here's the ACLU's legal case against force-feeding, from this week's coalition letter to Secretary Hagel:
Force-feeding as used in Guantanamo violates Common Article 3 of the four Geneva Conventions of 1949, which bar cruel, humiliating and degrading treatment. It also could violate the Detainee Treatment Act of 2005, which prohibits the "cruel, inhuman, or degrading treatment" of prisoners "regardless of nationality or physical location." Indeed, a 2006 joint report submitted by five independent human rights experts of the United Nations Human Rights Council (formerly the U.N. Commission on Human Rights) found that the method of force-feeding then used in Guantanamo, and which appears to remain in effect today, amounted to torture as defined in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which the United States ratified in 1994. The report asserted that doctors and other health professionals authorizing and participating in force-feeding prisoners were violating the right to health and other human rights, including those guaranteed by the International Covenant on Civil and Political Rights, which the United States ratified in 1992. Those concerns were reiterated this month by the Office of the UN High Commissioner for Human Rights, the Inter-American Commission on Human Rights, the United Nations Working Group on Arbitrary Detention, and three UN Special Rapporteurs.
While the letter focuses on cruel, inhuman, or degrading treatment, there may be other problems with force-feeding, too. For example, force-feeding may infringe on hunger-striking detainees' free speech. But First Amendment claims by hunger-strikers in regular detention in the U.S. have not been successful; Guantanamo Bay detainees would almost certainly face even steeper First Amendment challenges in the courts. There's also the right to refuse medical treatment. As Michael Dorf (DorfonLaw.org) argues at jurist.org, "five Justices in [Cruzan v. Dir. Missouri Dep''t of Health] did say that they thought that competent adults have the right to refuse forced feeding, even if death will result." But that runs up against Washington v. Harper, holding that prison officials could override a prisoner's objection to forcibly being administered medication, assuming it's in the prisoner's medical interest.
Anyway, as Dorf points out, some Guantanamo detainees might have a hard time even bringing a case. Judge Kessler (D.D.C) dismissed a detainee force-feeding case in 2009, based on the jurisdiction-stripping provision in the Military Commissions Act of 2006. That provision says,
Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
The difference here is that some of the hunger-strikers now have been cleared for release--the U.S. just can't find a place to send them. Those detainees are not "determined by the United States to have been properly detained as an enemy combatant or [are] awaiting such determination," and are not barred by 2241(e)(2) from bringing suit.
May 15, 2013 in Courts and Judging, Current Affairs, First Amendment, Fundamental Rights, Jurisdiction of Federal Courts, Medical Decisions, News, Speech, War Powers | Permalink | Comments (0) | TrackBack (0)
Monday, May 6, 2013
The 2009 sharply divided Supreme Court opinion in Caperton v. Massey Coal is the centerpiece of the new book, The Price of Justice: A True Story of Greed and Corruption by Laurence Leamer. Recall that the Court in Caperton ruled that due process required judicial recusal of a West Virginia Supreme Court of Appeals judge, Justice Brent Benjamin, in a case involving Massey Coal because of the contributions by Massey Coal to Justice Benjamin's campaign.
The starred review from Publisher's Weekly describes the book as
the riveting and compulsively readable tale of the epic battle between Don Blankenship, the man who essentially ran the West Virginia coal industry through his company Massey Energy, and two seemingly ordinary attorneys: Bruce Stanley and David Fawcett. The centerpiece of the story is a West Virginia mine owner whom Blankenship purposefully bankrupted, and on whose behalf Stanley and Fawcett won (in 2002) a $50 million dollar verdict that is still unpaid. In hopes of having the ruling overturned by the West Virginia Supreme Court, Blankenship sought to “buy” a seat on the court by contributing over $3 million to the successful campaign of a conservative judicial candidate. However, the U.S. Supreme Court eventually found that Blankenship’s contributions were too much to allow the new West Virginia justice to hear the case. Leamer has produced a Shakespearean tale of greed, corporate irresponsibility, and personal hubris on the one hand, and idealism, commitment to justice, and personal sacrifice on the other. Blankenship is a villain for all time, and Stanley and Fawcett are lawyers who bring honor to their profession.
A good addition to that summer reading list for anyone interested in constitutional law and anyone who might like a reminder that lawyers can, indeed, be heroic.
Friday, May 3, 2013
The general perception that Congress has been recalcitrant regarding President Obama's nominees to the federal bench can be tested against the Congressional Research Service report, President Obama’s First-Term U.S. Circuit and District Court Nominations: An Analysis and Comparison with Presidents Since Reagan, authored by Barry J. McMillion.
During the first terms of the five most recent Presidents (Reagan to Obama), the 30 confirmed Obama circuit court nominees were tied with 30 Clinton nominees as the fewest number of circuit nominees confirmed. The percentage of circuit nominees confirmed during President Obama’s first term, 71.4%, was the second-lowest, while the percentage confirmed during G.W. Bush’s first term, 67.3%, was the lowest.
For district judges, the report declares:
President Obama’s first term, compared with the first terms of Presidents Reagan to G.W. Bush, had the second-fewest number of district court nominees confirmed (143 compared with 130 for President Reagan) and the second-lowest percentage of district court nominees confirmed (82.7% compared with 76.9% for President G.H.W. Bush).
As to the timeliness of the process, the report states:
President Obama is the only one of the five most recent Presidents for whom, during his first term, both the average and median waiting time from nomination to confirmation for circuit and district court nominees was greater than half a calendar year (i.e., more than 182 days).
The 31 page report has many specific details and statistics. It's definitely worth a read for anyone interested in the federal judiciary.
Thursday, April 18, 2013
In its sharply divided opinion in Center for Constitutional Rights v. United States, the United States Court of Appeals for the Armed Forces rejected a claim that of public access to the trial and documents regarding the Bradley Manning court martial.
In this case, the appellants - - Center for Constitutional Rights, Glenn Greenwald, “Salon.com,” Jeremy Scahill, “The Nation,” Amy Goodman, “Democracy Now!,” Chase Madar, Kevin Gosztola, Julian Assange, and Wikileaks - - - sought press access. The three-judge majority noted that the court "invited counsel for the accused to file a brief on the issues but they declined to do so." It concluded that the court did not have the "jurisdiction" to grant the relief requested.
The two dissenting opinions - - - each judge authoring an opinion that the other joined - - - reject the majority's disinclination to assert its own power.
A dissenting opinion, by Chief Judge Baker joined by Senior Judge Cox, begins by centering the First Amendment concerns:
The general public has a qualified constitutional right of access to criminal trials. Richmond Newspapers, Inc. v. Virginia , 448 U.S. 555 (1980) (plurality opinion). Public access to a criminal trial includes appropriate access to filings. Nixon v. Warner Commc’ns , Inc. , 435 U.S. 589 , 597 (1978) . “Congress intended that, to the extent ‘practicable,’ trial by court - martial should resemble a criminal trial in a federal district court.” United States v. Valigura , 54 M.J. 187, 191 (C.A.A.F . 2000). The right to a public trial is embedded in Rule for Court’s - Martial (R.C.M.) 806, which provides that “ [e]xcept as otherwise provided in this rule, courts - martial shall be open to the public.”
Judge Baker's opinion stops short of concluding that there should be press access to the proceedings and documents, but does conclude that the court should determine the specific contours of the First Amendment right.
Judge Cox's dissenting opinion, joined by Baker, emphasized the court's role to assist the military trial judge, noting that the military judges " are in a better position to do that than is a federal district judge to solve the issues presented."
Thus, it seems as if it will continue to be difficult to determine what is happening in the court martial of Bradley Manning.
Wednesday, April 3, 2013
More than a year after Federal Judge Richard Cebull of the District of Montana (pictured)reported himself to the Ninth Circuit after a "joke" he forwarded on email became public,
Ninth Circuit Chief Judge Alex Kozinski has issued a statement announcing that Judge Cebull is retiring:
Judge Cebull's self-filed complaint and another were referred to a Special Committee which conducted a thorough and extensive investigation, interviewed numerous witnesses, considered voluminous documentation, including emails, and conducted an interview with Judge Cebull. The Special Committee's Report was submitted to the Judicial Council in December 2012. On March 15, 2013 the Judicial Council issued an Order and Memorandum. Judicial Conduct Rule 20(f). Pursuant to Judicial Conduct Rules 22 and 24(a), the Order and Memorandum remains confidential during the appeal period.
At this time, Judge Cebull has submitted his retirement letter, pursuant to 28 U.S.C. § 371(a), effective May 3, 2013. The Council will have no further statement on this matter until Judge Cebull's retirement is effective.
We will await the Council's statement and release of the Order and Memorandum.
[image of Judge Cebull via]
Monday, April 1, 2013
Can a judge - - - a Supreme Court Justice - - - be a practitioner of "popular constitutionalism"? Was Justice Felix Frankfurter such a judge?
Snyder's view of popular constitutionalism may be a broader than some, but his linking of judicial restraint with popular constitutionalism, especially when situated in the New Deal era, is sound. Snyder concentrates on three of the most important and oft-criticized constitutional moments of Frankfurter's judicial career – the flag salute cases of Minersville School Dist. v. Gobitis (1940), reversed a mere three years later in West Virginia Bd. of Educ. v. Barnette (1943); Brown v. Board of Education and its progeny; and Baker v. Carr (1962).
Snyder concludes: "Frankfurter’s judicial reputation suffered at the hands of scholars intent on preserving the Warren Court’s legacy of protecting civil rights and civil liberties. Frankfurter’s Baker [v. Carr] dissent, however, has proven to be just as prophetic as some of Holmes’s and Brandeis’s dissents because it revealed the ugly underside of the Warren Court’s legacy – judicial supremacy."
While others have certainly noted the vacillations of progressive and conservative judicial activism, Snyder's article calls for a renewed evaluation of Frankfurter and perhaps of popular constitutionalism.
Friday, March 29, 2013
a law prof, hits precisely the right tones for those already acquainted with the material. Here's a bit from Milan's "truncated transcript":
SOTOMAYOR: So let me ask a real question. If marriage is a fundamental right, is the state ever allowed to limit it?
KENNEDY: Enough about gays and lesbians. Can we talk about me for a minute? Because I feel a little uncomfortable with this discussion. In fact, I’m kind of feeling like taking my swing-voting ball and going home. Who wants to dig the case?
[note: dig=acronym for Dismissed as Improvidently Granted]
OLSON: Uh. Kinda staggered here. You want to dig the case? We…we spent weeks preparing for this, the entire country is watching, millions of people could have their lives changed, and you want to dig the case?
KENNEDY: I’m just saying. Oh, Olson, you’re all out of time. Nice ending note, though.
Worth a read in its entirety.
[h/t Darren Rosenblum]
Wednesday, March 27, 2013
In the second of the same-sex marriage cases, after yesterday's Proposition 8 argument, the Court heard oral argument today in United States v. Windsor, a grant of certiorari to the Second Circuit opinion holding DOMA unconstitutional and applying intermediate scrutiny to sexual orientation classifications.
Edith Windsor (pictured) argues that DOMA - - - the Defense of Marriage Act - - -violates the equal protection component of the Fifth Amendment. Recall DOMA is not being defended by the Obama Administration, but by BLAG - the Bipartisan Legal Advisory Group - - - at taxpayer expense which reportedly topped $3 million even before today's arguments.
The extended two hour session had several attorneys arguing: LawProf Vicki Jackson, Court-appointed as amicus on the standing issue; Sri Srinivasan, Deputy Solictor General (supporting Windsor on the standing issue); Paul D. Clement on behalf of BLAG; Solicitor General Donald B. Verrilli (supporting Windsor); and Roberta A. Kaplan on Behalf of Windsor.
On the standing issue:
Similar to the Proposition 8 case argued yesterday, the fact that the government is not defending the constitutionality of the law raises a quetions about the Court's power under Article III to decide the issues.
Justice Kagan asked one of the most trenchant questions regarding standing and injury, especially given the Obama Administration's stated belief that DOMA is unconstitutional:
The Government is willing to pay that $300,000, would be happy to pay that $300,000, but whether the Government is happy or sad to pay that $300,000, the Government is still paying the $300,000, which in the usual set of circumstances is the classic Article III injury. Why isn't it here?
But Jackson answered that the federal government had not asked the Court to remedy that injury and that the Article III "case or controversy" requirement is "nested in an adversarial system."Throughout the arguments on standing there was a search for the most controlling precedent - - - with Justice Roberts' asking "is there any case where all the parties agreed with the decision below and we upheld appellate jurisdiction? Any case?" The general consensus seemed to be that Windsor was distinct from the most similar case, INS v.Chadha decided in 1983. (Chadha involved the legislative veto and produced a very fractured set of opinions on the merits). Justice Scalia had some barbs to throw at the present administration, contrasting it to when he was at the Office of Legal Counsel.
On the merits:
The challenge to DOMA is under the equal protection component of the Fifth Amendment, with the Solicitor General arguing that the standard to be applied is intermediate scrutiny and Kaplan arguing that DOMA failed even rational basis scrutiny. Yet the equal protection arguments were embroiled with the federalism and Congressional power to pass DOMA; Justice Kennedy stated that the federalism and equal protection issues were "intertwined." [A good example this intertwinement occurred in the First Circuit opinion that held DOMA unconstitutional.]
For Solicitor General Verrilli, the intertwinement aspect was a cause of consternation and undercut his argument yesterday in the Proposition 8 case that even a state law denying same-sex marriage violated equal protection and that the correct standard was intermediate scrutiny as the Second Circuit held.
The consistency principle of equal protection doctrine - - - that the same standard should apply no matter what classification was benefitted or burdened - - - was also a focus, with hypotheticals about the standard should Congress decide that it would provide federal benefits to same-sex couples even if the state did not recognize their marriages. [The question of who would have standing to challenge such a law did not arise].
Justice Roberts repeatedly brought up the question of animus as part of a rationality with bite inquiry, asking at least twice whether the 84 Senators who voted for DOMA and the President [Clinton] were motivated by animus. Justice Roberts also raised the question of political powerlessness, often an inquiry in determining the level of equal protection scrutiny. Roberts echoed an opinion expressed by Justice Scalia in earlier cases that sexual minorities were anything but politically powerless when he told Roberta Kaplan, representing Edith Windsor, "As far as I can tell, political figures are falling over themselves to endorse your side of the case."
Justice Ginsburg probably uttered the most memorable quote of the day's arguments. In her questioning of Paul Clement, who represented BLAG, she condensed his argument as saying that in granting same-sex marriages, states were nevertheless saying there were really "two kinds of marriage; the full marriage, and then this sort of skim milk marriage." Her remark would be even more noteworthy for people who recall that the scrutiny standard is often traced to the famous footnote 4 in Carolene Products, a case about - - - milk.
This is from the essay Toward a more perfect analysis, published in the SCOTUSBlog same-sex marriage sympoisum in September 2012:
The suggestions of clearly articulated standards and rigorous analysis are not simply the fantasies of a law professor. While Supreme Court opinions need not be constitutional law examination answers, neither should they be confusing, or marred by sarcasm or sentimentality. Students studying law should be exposed to more Supreme Court opinions demonstrating trenchant analysis rather than rhetorical politics.
Clearly articulated standards might also allow the lower federal courts as well as the state courts to engage in their own rigorous analysis rather than attempt to discern the correct standard from Supreme Court precedents that are unclear, internally inconsistent, or point in several directions. This is not to say that the same-sex marriage issue should have been easily resolved by lower courts or that the applications of the standard are not difficult and value-laden. However, the grappling of the lower courts for several years now regarding the actual holding of Romer v. Evans, as well as Loving v. Virginia, could have been avoided.
Regarding the suggested holdings in the Proposition 8 and DOMA cases, the Supreme Court’s clear conclusion that sexuality merits intermediate scrutiny review, like gender, would disentangle the equal protection doctrine from the animus inquiry. While certainly animus can be operative, the inquisition into intent invites protestations of moral belief or religious conviction. The false opposition between equality and morals needs to be abandoned. Additionally, the linking of sexual orientation and gender as quasi-suspect should lead courts to find classifications based upon gender identity, transgender identity, or gender nonconformity as similarly subject to intermediate scrutiny review. Additionally, the Supreme Court’s definitive holding that marriage is a fundamental right meriting strict scrutiny review would extricate the issues from the federalism quagmire.
March 27, 2013 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Gender, Interpretation | Permalink | Comments (0) | TrackBack (0)
Tuesday, March 26, 2013
The first of the two closely-watched same sex marriage cases to be argued before the United States this morning prompted much tweeting and predictions, as well as the promised early release of the audio by the Supreme Court itself.
As the oral arguments today made clear, at issue before the Court today in Hollingsworth v. Perry is the constitutionality of California's Proposition 8, held unconstitutional by a divided panel of the Ninth Circuit in Perry v. Brown.
The Standing Issue:
The first question during oral argument was from Chief Justice Roberts and directed the attention of Hollingsworth's counsel, Charles Cooper, to the "jurisdictional" issue - - - the question of whether Hollingsworth has standing. Recall that the original challenge to Proposition 8 named Governor Schwarzenegger, and later substituted Governor Brown, as defendants, but both governors and the State of California refused to defend the constitutionality of the voter initiative. Recall also that the California Supreme Court had answered a certified query about the interests of proponents of a Proposition under California law, but today's the questions from the bench stressed Article III of the United States Constitution.
Roberts' query was repeated to Theodore Olsen, arguing for the challengers to Proposition 8, and to Solicitor General Verrilli, who noted that the United States, as amicus, did not have a "formal position" on standing, but essentially echoed Justice Ginsburg's first question to Cooper, regarding whether the proponents of Proposition 8 had any "propriety interest" in the law distinct from other California citizens once the law had been passed.
On the Merits:
A central query on the merits is the level of scrutiny under equal protection doctrine that should be applied. Justice Kennedy asked Cooper whether it could be treated as a gender classification and stated "It's a difficult question that I've been trying to wrestle with it." Yet Cooper's argument in many ways deflects the level of scrutiny inquiry and Justice Kagan expressed it thusly:
Mr. Cooper, could I just understand your argument. In reading the briefs, it seems as though your principal argument is that same-sex and opposite -- opposite-sex couples are not similarly situated because opposite-sex couples can procreate, same-sex couples cannot, and the State's principal interest in marriage is in regulating procreation. Is that basically correct?
Mr. Cooper agreed, and continued his argument, although Justice Scalia later tried to assist him:
JUSTICE SCALIA: Mr. Cooper, let me -- let me give you one -- one concrete thing. I don't know why you don't mention some concrete things. If you redefine marriage to include same-sex couples, you must -- you must permit adoption by same-sex couples, and there's - there's considerable disagreement among -- among sociologists as to what the consequences of raising a child in a -- in a single-sex family, whether that is harmful to the child or not. Some States do not -- do not permit adoption by same-sex couples for that reason.
JUSTICE GINSBURG: California -- no, California does.
JUSTICE SCALIA: I don't think we know the answer to that. Do you know the answer to that, whether it -- whether it harms or helps the child?
But given that Justice Kennedy is widely viewed as the "swing vote," his comments deserve special attention. During Cooper's argument, Kennedy focused on the children of same-sex couples in California:
JUSTICE KENNEDY: I -- I think there's - there's substantial -- that there's substance to the point that sociological information is new. We have five years of information to weigh against 2,000 years of history or more. On the other hand, there is an immediate legal injury or legal -- what could be a legal injury, and that's the voice of these children. There are some 40,000 children in California, according to the Red Brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don't you think?
But at other times, Kennedy expressed other concerns. During Theordore Olsen's argument, Kennedy stated
JUSTICE KENNEDY: The problem -- the problem with the case is that you're really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters, and you can play with that metaphor, there's a wonderful destination, it is a cliff. Whatever that was.
And soon thereafter, in perhaps what could be a possible avoidance of all the issues,
JUSTICE KENNEDY: But you're -- you're doing so in a -- in a case where the opinion is very narrow. Basically that once the State goes halfway, it has to go all the way or 70 percent of the way, and you're doing so in a case where there's a substantial question on - on standing. I just wonder if -- if the case was properly granted.
MR. OLSON: Oh, the case was certainly properly granted, Your Honor. I mean, there was a full trial of all of these issues. There was a 12-day trial, the judge insisted on evidence on all of these questions. This -- this is a -
JUSTICE KENNEDY: But that's not the issue the Ninth Circuit decided.
Could the Supreme Court merely declare that its grant of certiorari was "improvidently granted." It certainly wouldn't be the first time (or second) in very recent history. But in such a high profile case, it might further erode respect for the Court.
March 26, 2013 in Courts and Judging, Equal Protection, Family, Fourteenth Amendment, Gender, Opinion Analysis, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Friday, March 15, 2013
The D.C. Circuit today rejected the CIA's non-response to the ACLU's FOIA request for documents related to the government's drone program and allowed the case to move forward. Still, the ruling doesn't ensure that anyone will actually receive documents. That's a question for the district court on remand.
The case, ACLU v. CIA, involves the ACLU's FOIA request for "records pertaining to the use of unmanned aerial vehicles ('UAVs')--commonly referred to as 'drones' . . .--by the CIA and the Armed Forces for the purpose of killing targeted individuals." The CIA responded with a Glomar response--declining either to confirm or deny the existence of any responsive records. The CIA claimed that confirming the existence of documents would confirm that it is involved in, or interested in, drone strikes, while denying the existence would confirm the opposite. According to the CIA, its involvement or interest in drone strikes fell under exceptions to the FOIA.
The D.C. Circuit disagreed. It ruled that the government had already publicized the targeted-killing-by-drone program, and that even the CIA chief had revealed its existence and the Agency's interest in it. Because the reasons for withholding the documents wasn't really a reason, in light of these disclosures, the court said that the CIA can't hide behind a Glomar response.
Moreover, the CIA justified its Glomar response on the ground that it was necessary to keep secret whether the CIA itself was involved in, or interested in, drone strikes. But the ACLU's request swept more broadly--to any government drone strikes. And the CIA's Glomar response also swept more broadly--too broadly.
The court also noted that the government appears to have acknowledged that the CIA has some records that could be responsive to the FOIA request.
The court remanded the case to the district court to sort out what documents the CIA has, and which ones, if any, it might have to turn over. It's not clear that the CIA will ultimately have to turn over any documents. The court gave specific suggestions to the district court as to how it might evaluate CIA records and determine which ones it has to release.
Thursday, March 14, 2013
Ninth Circuit Reverses Death Sentence Because of Unconstitutional Actions of Police Officer and Prosecution
The Ninth Circuit has granted a writ of habeas corpus to Debra Jean Milke, a woman on Arizona's death row for the 1990 death of her four year old child, in its opinion today in Milke v. Ryan.
The opinion is noteworthy not only for the grant of the writ in a death penalty case, but for its portrayal of police and prosecutorial practices and for the work it took to uncover the problems. At the heart of the case is what the panel describes as essentially a "swearing contest" between the then 25 year old Debra Jean Milke (pictured right) and Phoenix Police Detective Armando Saldate, Jr. The Detective testified that Milke was given MIranda warnings and confessed to the murder of her son. Ms. Milke contended that she requested a lawyer, never confessed, and was innocent. There was no signed Miranda waiver, no tape of the interrogation or confession, and no evidence other than the Detective's oral statements linking Ms. Milke to the crime. Milke has maintained her innocence. At trial, Milke's attorneys requested the personnel files of Detective Saldate, but the state judge quashed the subpoena. The prosecution never disclosed the evidence despite Brady v. Maryland, 373 U. S. 83 (1963) which requires the prosecution to disclose evidence favorable to the accused and material to his guilt or punishment.
Detective Saldate's file would have included not only numerous disciplinary actions against him for untruthfulness, but also the major cases he had worked on, including those that had appellate opinions reversing convictions based upon Saldate's violations of constitutional rights or dishonesty. The appendix to the panel opinion lays out eight cases and one internal affairs investigation with specific findings regarding Saldate's "lying under oath" or Fourth or Fifth Amendment violations.
Also of note is the manner in which Saldate's transgressions were ultimately discovered:
Milke was able to discover the court documents detailing Saldate’s misconduct only after a team of approximately ten researchers in post-conviction proceedings spent nearly 7000 hours sifting through court records. Milke’s post-conviction attorney sent this team to the clerk of court’s offices to search for Saldate’s name in every criminal case file from 1982 to 1990. The team worked eight hours a day for three and a half months, turning up 100 cases involving Saldate. Another researcher then spent a month reading motions and transcripts from those cases to find examples of Saldate’s misconduct.
No civilized system of justice should have to depend on such flimsy evidence, quite possibly tainted by dishonesty or overzealousness, to decide whether to take someone’s life or liberty. The Phoenix Police Department and Saldate’s supervisors there should be ashamed of having given free rein to a lawless cop to misbehave again and again, undermining the integrity of the system of justice they were sworn to uphold. As should the Maricopa County Attorney’s Office, which continued to prosecute Saldate’s cases without bothering to disclose his pattern of misconduct.
Indeed, given Saldate’s long history of trampling the rights of suspects, one wonders how Saldate came to interrogate a suspect in a high-profile murder case by himself, without a tape recorder or a witness. And how could an interrogation be concluded, and a confession extracted, without a signed Miranda waiver? In a quarter century on the Ninth Circuit, I can’t remember another case where the confession and Miranda waiver were proven by nothing but the say-so of a single officer. Is this par for the Phoenix Police Department or was Saldate called in on his day off because his supervisors knew he could be counted on to bend the rules, even lie convincingly, if that’s what it took to nail down a conviction in a high-profile case?
It’s not just fairness to the defendant that calls for an objectively verifiable process for securing confessions and other evidence in criminal cases. We all have a stake in ensuring that our criminal justice system reliably separates the guilty from the innocent. Letting police get away with manufacturing confessions or planting evidence not only risks convicting the innocent but helps the guilty avoid detection and strike again.
From the rendition of the facts in both the panel and concurring opinions, Ms. Milke was the victim of a grave injustice. But recall the Supreme Court's 5-4 opinion in Connick v. Thompson regarding the standard by which Brady violations should be evaluated: the "state district attorney's office cannot be held liable for a failure to train the assistant district attorneys regarding compliance with Brady unless there was evidence that there was a need for "more or different Brady training.""
The opinion of a New York judge holding unconstitutional the NYC Department of Health regulation regarding soda sizes - - - popularly known as Mayor Bloomberg's soda ban - - - might be viewed as a triumph of conservative principles deployed to prevent government overreaching.
But over at Slate, Emily Bazelon provides a contrary view. Indeed, she writes that
Judge Tingling paid lip service to the principle that courts must defer to elected bodies, which include executive agencies, but really, he is just substituting his judgment for theirs.
She has a good analysis of the opinion, both the separation of powers issue and the "arbitrary and capricious" conclusion, but also situates the opinion within larger notions of "conservative judicial activism."
Worth a read, especially for those outside NYC who want more depth than the surfeit of news stories are providing.
Wednesday, March 13, 2013
Divided Fourth Circuit Panel Declares Virginia's Sodomy Law Unconstitutional: A Decade After Lawrence v. Texas
William Scott MacDonald was arrested more than a year after Lawrence v. Texas (2003), for solicitation to violate Virginia's (anti-)sodomy law, Va. Stat §18.2-361(A): "If any person . . . carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, he or she shall be guilty of a [felony.]" He was eventually sentenced to ten years, with nine years suspended, and thereafter compelled to register as a sex offender. His life, as Adam Liptak reported in 2011, has not been easy.
The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.
In MacDonald's situation, the solicitation - - - all parties agree no sex actually occurred - - - was found to be of a 17 year old woman. (Interestingly, the 47 year old MacDonald had originally contacted law enforcement alleging that the young woman had sexually assaulted him; he was also convicted of the misdemeanor of making a false report.) The prosecution thus successfully argued that Lawrence v. Texas was inapposite since the Virginia statute - - - as applied - - - was constitutional. This argument succeeded even though the the age limit in the solicitation statute was 15, not 18.
The Commonwealth of Virginia was similarly successful in its arguments in state courts on direct appeal and postconviction relief. MacDonald thereafter sought federal habeas relief, with the district judge rejecting the constitutional arguments.
The Fourth Circuit's opinion yesterday in MacDonald v. Moose belatedly provides relief for MacDonald. The panel majority wrote that "we are constrained" to find an entitlement to habeas corpus relief on the ground that the Virginia anti-sodomy provision "facially violates the Due Process Clause of the Fourteenth Amendment." The Fourth Circuit's opinion seems at times quite deferential to Virginia, but at two points the opinion sharpens its rhetoric.
First, the panel points to an inconsistency in Virginia's treatment of MacDonald:
The Commonwealth’s efforts to diminish the pertinence of Lawrence in connection with MacDonald’s challenge to the anti-sodomy provision — an enactment in no way dissimilar to the Texas and Georgia statutes deemed unconstitutional by the Supreme Court — runs counter to Martin v. Ziherl, 607 S.E.2d 367 (Va. 2005). In that case, the Supreme Court of Virginia evaluated the constitutionality of a state statute having nothing to do with sodomy, but instead outlawing ordinary sexual intercourse between unmarried persons. The state supreme court nonetheless acknowledged that Lawrence was sufficiently applicable to require the statute’s invalidation.
Second, in a footnote the panel majority expressed its disagreement with the dissent in terms that questioned Virginia's prosecutorial choices:
The dissent’s finely honed distinction that, unlike Lawrence and Bow- ers, this "case" involves minors, is made possible solely by the Commonwealth’s decision to institute prosecution of a man who loathsomely solicited an underage female to commit an act that is not, at the moment, a crime in Virginia. The Commonwealth may as well have charged Mac- Donald for telephoning Ms. Johnson on the night in question, or for persuading her to meet him at the Home Depot parking lot. The legal arm of the Commonwealth cannot simply wave a magic wand and decree by fiat conduct as criminal, in usurpation of the powers properly reserved to the elected representatives of the people.
Monday, March 11, 2013
Professor Peter Irons (UCSD Emeritus, and founder and Director Emeritus, Earl Warren Bill of Rights Project, UCSD) calls for Supreme Court repudiation of Hirabayashi, Yasui, and Korematsu in his recent piece Unfinished Business: The Case for Supreme Court Repudiation of the Japanese American Internment Cases.
The Supreme Court in those cases upheld convictions of Japanese Americans for violations of the military curfew and exclusion orders issued by President Franklin D. Roosevelt on February 19, 1943.
Irons initiated and served as counsel to Fred Korematsu and Gordon Hirabayashi in their 1983 coram nobis actions, which led to the vacation of their wartime convictions. Irons also wrote Justice at War: The Story of the Japanese American Internment Cases and edited Justice Delayed: The Record of the Japanese American Internment Cases.
Irons now calls for Supreme Court repudiation of Hirabayashi, Yasui, and Korematsu, an unprecedented act, but one that Irons says is appropriate here:
This essay presents the case for the Supreme Court to . . . formally repudiat[e] its decisions in the Japanese American internment cases, issuing a public statement acknowledging that these decisions were based upon numerous and knowing acts of governmental misconduct before the Court, and were thus wrongly decided. These acts of misconduct, documented and discussed herein, were committed by several high-ranking military and civilian officials (including the Solicitor General of the United States) before and during the pendancy of the internment cases before the Supreme Court. Consequently, the Court was forced to rely in making its decisions on records and arguments that were fabricated and fraudulent. Sadly, the Court's unquestioning acceptance of these tainted records, and its upholding of the criminal convictions of Gordon Hirabayashi, Minoru Yasui, and Fred Korematsu, has left a stain on the Court's integrity that requires the long overdue correction of public repudiation and apology, as both the legislative and executive branches of the federal government--to their credit--have now done.
Irons explains why Hirabayashi, Yasui, and Korematsu couldn't get the Supreme Court's rulings overturned, and thus why his efforts are now necessary:
Admittedly, a public repudiation of the Japanese American internment cases would be unprecedented, considering that the cases are technically moot, since the Solicitor General of the United States at the time, Charles Fried, did not ask the Court to review the decisions of the federal judges who vacated the convictions, pursuant to writs of error coram nobis that were filed in all three cases in 1983 and decided in opinions issued in 1984, 1986, and 1987. The government's decision to forego appeals to the Supreme Court left the victorious coram nobis petitioners in a classic Catch-22 situation: hoping to persuade the Supreme Court to finally and unequivocally reverse and repudiate the decisions in their cases, they were unable--as prevailing parties in the lower courts--to bring appeals to the Court.
Irons argues that the Court "has both the inherent power and duty to correct its tainted records through a public repudiation of the wartime decisions."
This is a piece in the finest tradition of making academic work relevant to the real world--what Irons does so well. It's a persuasive piece of history, scholarship, and activism by somebody who helped make--and continues to make--that story. Highly recommended.
[Image: Gordon Hirabayashi, Minoru Yasui, Fred Korematsu]