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Tag: "constitutional law"

ACA Oral Arguments: Day 1 Recap

[ 19 ] March 27, 2012 |

Since I was skeptical about whether the Court was seriously considering using a jurisdictional ruling to dodge the constitutional issue ex ante, the oral arguments yesterday certainly did nothing to dissuade me.

Looking around, this seems to be the consensus. Had a lower court not bought the anti-injunction argument, I doubt the Court would have even asked for the question to be briefed.

Looking forward to tomorrow, Sarah Kliff’s primer is very useful.


The Aggressive-Aggressive Virtues

[ 86 ] March 26, 2012 |

The hot argument based on today’s argument is likely to be the idea that the Supreme Court will just duck the question of the ACA’s constitutionality using a jurisdictional dodge. It’s possible, but I actually don’t think it’s very likely. How I read history differently is that I see the courts ducking cases where a ruling would lack significant political support, not ducking “politically divisive” cases per se. To cite another example, the Court invented a (legally erroneous) reason to duck an interracial marriage case in the mid 50s, for example, because they didn’t want to uphold bans on interracial marriage but striking it down would have been enormously unpopular, and not just in the Jim Crow states. In this case, conversely, the Court would have more than sufficient political and public support if they vote to strike down the ACA; they have no reason to duck the case unless they want to on the merits anyway.

Today In Great Dissents

[ 29 ] March 20, 2012 |

Say it, Justice Ginsburg.

Much more on this travesty imminently. The short version is that Supreme Court has joined the War on Women by combining a “federalist” doctrine that is embarrassing nonsense even by Rehnquist/Roberts Court standards with a denial of Congress’s explicit powers to enforce the Fourteenth Amendment unless it meets some unintelligibly arbitrary standards invented by the Court.

Also, given the Republican reluctance to reauthorize the Violence Against Women Act, it’s worth remembering that another case in which a bare majority of Supreme Court conservatives acted to read Section 5 of the Fourteenth Amendment out of the Constitution involved striking down a part of the Violence Against Women Act and immunizing a gang rapist from a civil suit.

Flagrant Conduct and the Right to Privacy

[ 17 ] March 20, 2012 |

The culmination of nearly a decade’s worth of research, Dale Carpenter’s Flagrant Conduct tells the story of Lawrence v. Texas, the landmark 2003 case holding that bans on “sodomy” violated the implicit constitutional right to privacy. Easily the best book of its kind since Richard Kluger’s Simple Justice was published in 1975, Flagrant Conduct is a rare combination of virtues. It is a gripping story of individuals fighting against systematic injustices intended for a general audience, but it is also a theoretically sophisticated work that represents an important contribution to legal scholarship. The facts about the case that Carpenter uncovers provide an especially powerful justification for the judicially enforced right to privacy that the Court applied in Lawrence.

The crucial legal background to the Lawrence case starts with Bowers v. Hardwick, the 1986 case that upheld Georgia’s ban on “sodomy.” It was always a shaky precedent, as a 5-4 decision that swing Justice Lewis Powell repudiated soon after leaving the bench. The case was also notable for the instructively contemptuous dismissals of Byron White’s majority opinion and Chief Justice Burger’s even more homophobic concurrence. On one level, Harry Blackmun was right to argue in his dissent that “the Court’s almost obsessive focus on homosexual activity is particularly hard to justify” given that on its face the Georgia statute applied to any oral or anal sex regardless of the gender of the partners. But on another level, the opinions of White and Burger were accurate expressions of the real meaning of the laws, which were intended not to actually stop private sexual relations but to stigmatize gays and lesbians even when they theoretically applied to heterosexual couples as well.

Narrowly decided, resting on bad history, at war with well-established precedents, and an open embarrassment to the justice who provided its fifth vote, Bowers was an unusually vulnerable precedent. But mounting a challenge to it was not easy, and the difficulties provide a rich story for Carpenter, who follows the Lawrence case from the point at which John Lawrence and Tyron Garner were arrested in the former’s apartment, accused of violating Texas’s ban on sodomy.

The core argument of the book is reflected in the double meaning of the title. “Flagrant conduct” is what John Lawrence and Tyron Garner were accused of. But, argues Carpenter, it was various officials representing the state of Texas who were guilty of “flagrant conduct.” This starts with the police officers who allegedly found Lawrence and Garner in flagrante delicto, and extends to the legislators who refused to repeal a discriminatory and arbitrarily enforced statute, the Harris County prosecutors who went ahead with a selective prosecution based on an incredible story and ineptly defended it in court, and the elected state judges who probably “capitulated to political pressure” and upheld the law ultimately overruled by a conservative Supreme Court.

The real flagrant conduct in the case began with the decision by police to march Lawrence and Garner out of the former’s home in handcuffs. The decision to arrest Lawrence and Garner under Texas’s rarely-enforced sodomy law was based on illegitimate motives. The arresting officers, Carpenter shows, “misuse[d] their authority” because they were challenged by an individual “whose very existence disgusted them.” Joseph Quinn, the lead officer who decided to charge Lawrence and Garner, was prejudiced against gay men, and was also outraged by the perceived unwillingness of Lawrence to respect his authority after four police officers invaded his apartment based on a false report.

As Dahlia Lithwick noted in her review of Flagrant Conduct in The New Yorker, Carpenter’s most important finding is that the arrest of Lawrence and Garner went beyond merely selective enforcement and was probably based on charges that were entirely fabricated. It is impossible to prove to an absolute certainty what the officers saw, and the two officers who allegedly witness Lawrence and Garner having sex — the only two living people who know what happened that fateful night — have not recanted their initial claims. But Carpenter establishes that, at a minimum, the story in Quinn’s official report is implausible in the extreme. Among other problems, it requires us to believe that two men who were inebriated and not professionals in the adult entertainment industry would continue to have penetrative sex for several minutes after police officers had loudly and repeatedly announced their presence in a quiet apartment, including for a full minute in the full view of several police officers brandishing weapons. Adding to the lack of credibility of the official police story is the fact that the two officers who claim to have witnessed the sexual activity could not even agree which specific sexual act they witnessed. Ironically, the two men whose arrest lead to “sodomy” laws being ruled unconstitutional probably never had sex with each other, and certainly were never in an ongoing sexual relationship. Lawrence flatly denied that he and Garner had ever had sexual relations, and some of the statements Lawrence and Garner made while being monitored by litigators who needed the official story to be preserved strongly imply that the charges against them were simply false.

Whether or not Lawrence and Garner were engaged in any kind of sexual activity when the police entered their apartment, their arrest was certainly unusual. Informally, the state of Texas never enforced its ban on same-sex “sodomy” against consenting adults acting in the privacy of their own homes. But this doesn’t mean that the laws were legally inconsequential. First of all, having seldom enforced laws on the books invites arbitrary enforcement that raises inevitable equal protection and due process problems. And second, even when not enforced bans on sodomy had far-reaching legal consequences that were not merely symbolic. Bans on sodomy were not just targeted at conduct. As Carpenter paraphrases Paul Smith’s eloquent oral argument at the Supreme Court, the Texas law “was a classification of people” rather than being simply a “classification of conduct.” Even in states where bans on sodomy theoretically applied to opposite-sex couples as well, the existence of these laws were cited by state courts as justifications for denying gays and lesbians the ability to adopt children, denying them custody of their own children, justifying the decisions of employers to fire them based solely on their sexual orientation, and a variety of other legal disabilities.

Flagrant Conduct also demonstrates the importance of class in the arrest of Lawrence and Garner. Neither of the defendants were well-educated or affluent, and they were arrested in an economically marginal, majority-minority neighborhood outside of Houston. (Garner was black, Lawrence white.) As Carpenter argues, this is not a coincidence. When laws are enforced in an egregiously selective manner, it is almost always poor people and/or racial minorities who bear the brunt of this inequality. I would add that the importance of class makes arguments that bans on sodomy should be upheld as a matter of “judicial restraint” ring especially hollow. Laws that are selectively enforced against relatively powerless minorities are not only constitutionally problematic; they are especially difficult to repeal, as the people most affected have very little ability to influence the political process.

One limitation of Flagrant Conduct is that Carpenter does very little to situate Lawrence within the context of the two landmark privacy cases that preceded it. This is unfortunate, because the salient facts Carpenter analyzes so powerfully apply to the Supreme Court’s previous cases as well. While none of the relevant opinions discuss issues of selective enforcement and class, they are critically relevant to all of the privacy cases. The ban on the use of contraception struck down in Griswold v. Connecticut had little effect on affluent people who could get a prescription from their physician, but made it much more difficult for poor people to obtain it (out of fear of violating the ban, not a single Planned Parenthood clinic operated in Connecticut while the ban was still in place.) The bans on abortion struck down in Roe v. Wade rarely led to convictions of doctors and did very little to prevent affluent women from obtaining safe abortions performed by licensed medical personnel in hospitals, but forced poor women to obtain risky black market abortions or be forced to carry unwanted pregnancies to term.

As this common thread suggests, the Court was right to hold that the Constitution implicitly protects a right to privacy in Griswold, and it was also right to extend this right in Lawrence. The powerful story told by Flagrant Conduct makes it clear that Lawrence v. Texas was an important triumph over a flagrant injustice.

Free Ridin’

[ 87 ] March 10, 2012 |

One of the plaintiffs challenging the constitutionality of the Affordable Care Act doesn’t the government has the authority to compel her to purchase health insurance. Rather, she would prefer that the taxpayers pay her medical bills:

Mary Brown, a 56-year-old Florida woman who owned a small auto repair shop but had no health insurance, became the lead plaintiff challenging President Obama’s healthcare law because she was passionate about the issue.

Brown “doesn’t have insurance. She doesn’t want to pay for it. And she doesn’t want the government to tell her she has to have it,” said Karen Harned, a lawyer for the National Federation of Independent Business. Brown is a plaintiff in the federation’s case, which the Supreme Court plans to hear later this month.

But court records reveal that Brown and her husband filed for bankruptcy last fall with $4,500 in unpaid medical bills. Those bills could change Brown from a symbol of proud independence into an example of exactly the problem the healthcare law was intended to address.


Obama administration lawyers argue that the requirement is justified because everyone, sooner or later, needs healthcare. Those who fail to have insurance are at high risk of running up bills they cannot pay, sticking the rest of society with the cost, they argue. Brown’s situation, they say, is a perfect example of exactly that kind of “uncompensated care that will ultimately be paid by others.”

Exactly correct. This is precisely why the argument that the mandate in the ACA represents some kind of unprecedented violation of freedom by “forcing” people to join the health care market would, in a rational universe, be laughed out of court. Nobody in the actually existing health care market can “choose” not to enter the relevant market, because we don’t live in a conververtarian dystopia in which the non-wealthy have to go without emergency medical care. And this is precisely the kind of collective action problem the commerce clause was designed to allow the federal government to address.

How the Prop 8 Case Should Change Equal Protection Law

[ 11 ] February 27, 2012 |

I have a piece for the Prospect that, among other things, argues that making “immutability” a major factor in whether a classification should be subject to heightened scrutiny is anachronistic:

I don’t blame White for applying the existing legal standard, and also agree with him that if forced to choose from what is essentially a false dichotomy I would put sexual orientation into the “immutable” box rather than the “freely chosen” box. (In addition, White does acknowledge that sexual orientation may not be immutable for all individuals.) But, like Graff, I believe both that this is an oversimplification and that gay and lesbian equality does not depend on entirely removing agency from the equation. People who choose same-sex partners from a group of potential partners of both genders deserve the same right to marry as people who rate a “6” on the Kinsey scale.

Fortunately, White’s compelling opinion should make it clear that the question of “immutability” should be considered superfluous. What really matters is the first category—whether people have been subject to “invidious discrimination.” As Judge White notes, there can “no dispute … that lesbians and gay men have experienced along history of discrimination.” Classifications that deny people rights based on sexual orientation act to stigmatize and subordinate, and this should be the crucial inquiry for equal protection law. Whether sexual orientation is entirely “immutable” is beside the point; based on an extensive history of oppression, sexual orientation clearly merits heightened scrutiny.

Another aspect of White’s opinion worth noting, as a commenter here also caught, is footnote 5:

The question of whether DOMA impacts a fundamental right is addressed briefly by the parties but it is not at issue here as it is undisputed that Ms. Golinski is already married under state law. The failure of the federal government to recognize Ms. Golinski’s marriage and to provide benefits does not alter the fact that she is married under state law.

While White doesn’t consider it applicable to this specific set of facts, he seems to be signalling that he would be open to the argument made persuasively by Evan Gerstmann that bans on same-sex marriage are constitutionally defective because marriage is a fundamental right. It’s a compelling argument that would help move us away from the “class based” equal protection models that aren’t really working.

Incidentally, I also agree with Gerstmann that the valiant attempts to claim that bans on same-sex marriage should be subject to strict scrutiny because they constitute gender discrimination won’t really fly. Bans on same-sex marriage treat people of both genders the same, and while this formal equality obviously entails subordination and stigmatization, the invidious discrimination is directed at people based on their sexual orientation, not their gender per se. To argue that  bans on SSM are unconstitutional, you either have to argue that 1)sexual orientation should be subject to heightened scrutiny, or 2)same-sex marriage burdens the fundamental right of marriage and hence should be subject to heightened scrutiny. Fortunately, I think both of these alternatives are good arguments, one of which is likely to prevail eventually (although probably not as a result of this case.)

Diluting Miranda

[ 26 ] February 22, 2012 |

The landmark criminal procedure decisions of the Warren Court have generally not been overruled, but this is somewhat misleading; in many cases, the precedents formally remain standing, but have been interpreted in ways that give them much less bite.

With Miranda v. Arizona, the dilution process continued yesterday. It’s rarely a good sign when you see Alito’s name on a majority opinion in a civil liberties case, and Howes v. Fields is no exception. Yesterday’s ruling concerned the admissibility of a confession made by a prisoner who was questioned by two sherrif’s deputies for more than five hours and while being held in prison. The prisoner did not have the assistance of counsel, was not given the Miranda warnings, and said more than once that he did not want to answer further questions. Seems a pretty clear violation of Miranda, right? Well, if so, you’re not Samuel Alito, whose opinion held that Fields was not actually “in custody” at the time and therefore not subject to the requirements of Miranda. While Ginsburg’s dissenting opinion agreed that the Court had not previously established that this kind of context constituted custody, as she points out the failure of the Court to establish this given the opportunity involves ignoring the standards set forth in Miranda:

Fields, serving time for disorderly conduct, was, of course, “i[n] custody,” but not “for purposes of Miranda,” the Court concludes. I would not train, as the Court does, on the question whether there can be custody within custody. Instead, I would ask, as Miranda put it, whether Fields was subjected to “incommunicado interrogation . . . in a police-dominated atmosphere,” whether he was placed, against his will, in an inherently stressful situation, and whether his “freedom of action [was] curtailed in any significant way.” Those should be the key questions, and to each I would answer “Yes.”

As the Court acknowledges, Fields did not invite or consent to the interview. He was removed from his cell in the evening, taken to a conference room in the sheriff’s quarters, and questioned by two armed deputies long into the night and early morning. Ibid. He was not told at the outset that he had the right to decline to speak with the deputies. Ibid. Shut in with the armed officers, Fields felt “trapped.” Although told he could return to his cell if he did not want to cooperate, Fields believed the deputies “would not have allowed [him] to leave the room,” And with good reason. More than once, “he told the officers . . . he did not want to speak with them anymore.” He was given water, but not his evening medications. Yet the Court concludes that Fields was in “an interrogation environment in which a reasonable person would have felt free to terminate the interview and leave.”

Critical to the Court’s judgment is “the undisputed fact that [Fields] was told that he was free to end the questioning and to return to his cell.” Never mind the facts suggesting that Fields’s submission to the overnight interview was anything but voluntary. Was Fields “held for interrogation”? Brought to, and left alone with, the gun-bearing deputies, he surely was in my judgment.

It’s classic Roberts Court “minimalism,” in other words. The Court doesn’t overrule Miranda, but it does invent some irrelevant reasons not to apply it in particular context.

Ginsburg dissented for Breyer and Sotomayor but not Kagan, who joined the Alito’s opinion in full. As this blog may have mentioned on one or two occasions, Kagan isn’t awful but certainly represents a missed opportunity. “To the right of Breyer on a Fifth Amendment case” is not what you’re looking for given an unusually large Senate majority to work with.

…Glenn beat me to the point on Kagan.

Specious Free Exercise Arguments Can’t Hide the War on Contraception

[ 104 ] February 21, 2012 |

There are a number of problems with Michael Gerson’s column in the Washington Post arguing that the Obama administration’s application of contraceptive coverage requirements to institutions providing secular services but affiliated with religious groups was an “epic political blunder.” For one thing, the entire premise of the column is wrong. The new regulations are in fact extremely popular, and Roman Catholics support the contraception coverage requirements by the same 2-to-1 majority as the population as a whole. In addition, Gerson alleges that the regulations show that Obama is “willing to trifle with the constitutional rights of religious people.”

The argument that the contraceptive coverage requirements violate the Constitution is not unique to Gerson. Republican politicians — led by Senate Minority Leader Mitch McConnell — and pundits alike have argued that the new regulations violate the Free Exercise clause of the First Amendment. But these arguments are specious. Nothing like the reading of the First Amendment invented to oppose the contraception coverage requirements has ever been adopted by the Supreme Court, for the obvious reason that it would be completely unworkable.

Under existing law, a constitutional challenge to the contraception provision wouldn’t even rise to the level of being frivolous. In the 1990 case Oregon v. Smith, in an opinion written by that infamous radical leftist Antonin Scalia, the Supreme Court held that neutral, generally applicable laws are constitutional even if they incidentally burden religious practice. Only if a law intentionally targets a religious practice does it run afoul of the Free Exercise clause. “We have never held,” wrote Scalia, “that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” The requirement that insurance plans cover contraception is a valid secular objective that is not directed at any religious practice per se, and hence is plainly constitutional. If the mandate applied to religious institutions this might be a constitutional problem, but religious institutions themselves are excluded; only religiously-affiliated institutions that serve secular purposes and hire people of multiple faiths are affected.

I believe that Scalia’s logic in Smith is sound, but I would be the last person to argue that everyone should defer to his interpretations of the Constitution, and Smith has certainly always had its share of critics. After Smith, a strange-bedfellows coalition of evangelical conservatives and civil libertarians pushed for the passage of the Religious Freedom Restoration Act, which among other things instructed the Court to apply the more restrictive “Sherbert test” that the Court effectively replaced in Smith. The Court struck down that provision of RFRA, but for the sake of argument let’s assume that Sherbert was correct and Smith was wrong, and that the former should be applied. Would the mandate be unconstitutional? Not even close. I believe that the mandate could easily be defended as narrowly tailored to advance a compelling state interest, especially since religious institutions themselves are not covered by the mandate. But it would not be necessary to even answer that question, because the Sherbert test requires that a law represent a “substantial burden” on a person’s ability to act on a sincere religious belief. Such a burden is noticeably absent here. The religiously-affiliated institutions are not even required to provide the insurance directly. As for Catholic employees, most lay Catholics do not follow the Church’s teachings on contraception; on such employees there is no burden at all. Even more importantly, the regulation does not require any individual to use contraception contrary to their religious beliefs, or even to pay more so that they can be covered. Even under a more restrictive standard than the Court is currently applying, in other words, the contraception regulations are plainly constitutional.

For these reasons, Ed Whelan’s arguments based on RFRA are also wrong, because the required “burden” isn’t there. Religious institutions have been reasonably accommodated, subject to regulation only when performing secular functions with taxpayer money for clients and with employees of multiple faiths. And individuals are not burdened at all.

The Court has not developed a more expansive interpretation of the First Amendment for the very good reason that this would immediately lead to absurd results. Can Quakers be exempt from paying federal taxes as long as the United States maintains a standing army? Should the Amish be exempt from paying Social Security taxes? Are bans on plural marriage unconstitutional because they burden the religious practices of some Mormons? A society cannot function if every religious group or individual is a conscience unto themselves, entitled to an exception to any valid general law that conflicts with their religious beliefs. And unless such a transparently useless interpretation is applied, there is no question that the requirement that medical insurance cover contraception is constitutional.

It is certainly understandable that Republicans would like to frame their opposition to the regulations as an issue of “religious freedom,” given how overwhelmingly unpopular their war on contraceptive access is. But these arguments are unserious, and the public understands this perfectly well.

In Defense of Reinhardt

[ 28 ] February 9, 2012 |

A couple people in comments endorsed Jason Mazzone’s critique of the Ninth Circuit panel’s narrow opinion ruling Prop 8 unconstitutional and asked for my reaction. To paraphrase Byron White, I agree with Mazzone that the best outcome would be for the Supreme Court to declare a nation-wide right to same-sex marriage, but our agreement ends there. In short, I think Mazzone’s reading of Reinhardt’s opinion is uncharitable and erroneous, and more importantly I think he is far too optimistic about Kennedy’s willingness to make bans on same-sex marriage illegal in all 50 states.

Same-Sex Marriage Bans Ruled Unconstitutional

[ 28 ] February 7, 2012 |

The Ninth Circuit has ruled that PropH8 is unconstitutional. I am very concerned that this will undermine Newt Gingrich’s commitment to the sacred institution of heterosexual marriage.

Obviously, good news, although the news will ultimately only be as good as Tony Kennedy decides it will. Much more when I’ve had a chance to read the opinion in full (see here).

10 CA v. the Stupid

[ 15 ] January 11, 2012 |

The 10th Circuit struck down the idiotic and flagrantly unconstitutional ban on “sharia” and “international” law passed by the fine citizens of Oklahoma last year.   Good; I would have hated to see Antonin Scalia get arrested if he came to give a speech in Tulsa.

The argument that Mark Tushnet makes about the winger focus on judges using international legal sources being a silly culture war diversion obviously applies even more forcefully to the “sharia law” nonsense.    I just wonder which Republican candidate will be first to describe the 10th Circuit as imposing Sharia on Oklahoma and demand that the court be abolished.

Gordon Hirabayashi (1918-2012)

[ 4 ] January 5, 2012 |

Gordon Hirabayashi, a civil rights hero who was arrested while attending my alma mater and ended his career teaching at my native province’s flagship university, passed away at age 93.   He was the last survivor of the three courageous people who refused to comply with racist internment orders during World War II, leading to negative-landmark precedents.

Hirabayashi’s case, as many of you know, made it to the Supreme Court.   The civics textbook reputation of the Court notwithstanding, its record in terms of protecting unpopular minorities is not very good.  So it was predictable that it unanimously upheld Hirabayashi’s conviction for violating the curfew order.  “Because racial discriminations are in most circumstances irrelevant and therefore prohibited,” Justice Stone argued, “it by no means follows that, in dealing with the perils of war, Congress and the Executive are wholly precluded from taking into account those facts and circumstances which are relevant to measures for our national defense and for the successful prosecution of the war, and which may in fact place citizens of one ancestry in a different category from others.”    When the Supreme Court directly addressed the question of internment in the case of Fred Korematsu with similar conclusions, dissenting Justice Frank Murphy accurately summarized the constitutional error that also should have been recognized in Hirabayashi’s case:

This exclusion of “all persons of Japanese ancestry, both alien and non-alien,” from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over “the very brink of constitutional power,” and falls into the ugly abyss of racism.

And despite what Michelle Malkin and her enablers may try to tell you, the policy that led to Hirabayshi’s arrest was utterly lacking in military justification.  The policy was a disgraceful stain on some otherwise admirable public careers: FDR, Earl Warren, Hugo Black, William O. Douglas.  The utter indefensiblity of the internment did ultimately lead to some far-too-delayed justice for Gordon Hirabayashi:

Soon after retiring, Hirabayashi received a call that would prove consequential. Peter Irons, a political science professor from the University of California, San Diego, had uncovered documents that clearly showed evidence of government misconduct in 1942—evidence that the government knew there was no military reason for the exclusion order but withheld that information from the Supreme Court. With this new information, Hirabayashi’s case was retried and in 1987 his conviction was overturned.

“It was quite a strong victory—so strong that the other side did not appeal,” says Hirabayashi. “It was a vindication of all the effort people had put in for the rights of citizens during crisis periods.”


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