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Tag: "constitutional law"

Due Process and Judicial Elections

[ 1 ] June 8, 2009 |

In a pleasantly surprising decision, the Supreme Court today held 5-4 (along predictable ideological lines with Kennedy as the swing vote) that West Virginia judge Brent Benjamin violated the due process rights of plaintiffs in a civil suit when he refused to recuse himself despite the fact that the chairman of the company appealing the verdict in favor of the plaintiffs had spent more than $3 million on Benjamin’s campaign. Kennedy’s opinion for the Court emphasized the extreme nature of the facts in holding that the appearance of bias in this case could not be consistent with due process:

Our decision today addresses an extraordinary situation where the Constitution requires recusal. Massey and its amici predict that various adverse consequences will follow from recognizing a constitutional violation here—ranging from a flood of recusal motions to unnecessary interference with judicial elections. We disagree. The facts now before us are extreme by any measure. The parties point to no other instance involving judicial campaign contributions that presents a potential for bias comparable to the circumstances in this case.

It is true that extreme cases often test the bounds of established legal principles, and sometimes no administrable standard may be available to address the perceived wrong. But it is also true that extreme cases are more likely to cross constitutional limits, requiring this Court’s intervention and formulation of objective standards. This is particularly true when due process is violated.

As the passage above suggests, Roberts’s dissent focuses on the alleged inapplicability of the rule, coming up with a 3940-part parade of horribles lamenting the fact that judges will actually have to apply discretion in determining whether the risk of judicial bias “is too high to be constitutionally tolerable.” (In his short dissent, Scalia combined his trademark advocacy of bright-line rules with his trademark showy-but-unilluminating rhetorical move, in this case quoting a Talmudic maxim.) At least Scalia and Thomas are being consistent, however. Note that when it comes to protecting the interests of big business Roberts and Alito have no objection to due process standards that require substantial judicial discretion. (And, certainly, reducing the appearance of judicial bias seems more central to due process concerns than limiting punitive damages.)

Because of its fairly minimalist nature, it will take a while to fully gauge the effects of today’s ruling. To the extend that today’s decision creates disincentives to buy judicial elections and increases incentives for judges to recuse themselves when there is a glaring appearance of bias, it must be considered salutary.

[X-Posted to TAPPED.}


The Constitutionality of the Bonus Tax

[ 0 ] March 24, 2009 |

Jack Balkin dismisses the constitutional arguments. Really, although there are serious objections to the bill on policy issues, until (God forbid) Richard Epstein becomes the median vote on the Supreme Court the constitutional objections are not serious.

Pleasant Surprises

[ 1 ] March 4, 2009 |

Diana Levine, a professional musician, developed gangrene after taking Phenergan through a direct injection and had her arm amputated below the elbow. A jury in Vermont held that the drug’s manufacturer had failed to provide sufficient warning about the risks inherent in injecting the drug. The company appealed, arguing that because the drug and label were FDA-approved, the suit was “pre-empted” by federal law. I fully expected the Supreme Court to side with the manufacturer.

Happily, I was mistaken. The Court today held 6-3 that no federal law pre-empted the Vermont civil verdict. Stevens’s majority opinion didn’t deny that the federal government could pre-empt such suits, but held that there was not, in fact, any federal pre-emption:

In short, Wyeth has not persuaded us that failure-to-warn claims like Levine’s obstruct the federal regulation of drug labeling. Congress has repeatedly declined to pre-empt state law, and the FDA’s recently adopted position that state tort suits interfere with its statutory mandate is entitled to no weight. Although we recognize that some state-law claims might well frustrate the achievement of congressional objectives, this is not such a case.

Chamber of Commerce favorite Stephen Breyer concurred to express his disdain for torts but agreed that there was no pre-emption in this case. The surprise vote in favor of Levine came from the Court’s most principled conservative, Clarence Thomas, who argued for a revision of federal pre-emption doctrine that would narrow federal power. Inevitable vote for the business interest Sam Alito wrote the dissent, joined by Roberts and Scalia.


[ 0 ] January 21, 2009 |

The Bush administration authorized the waterboarding of prisoners. Waterboarding is torture. Torture is prohibited by the Convention Against Torture, to which the U.S. is a signatory. This treaty requires a state to prosecute officals under its jurisdiction who violated the treaty. The U.S. Constitution makes this treaty binding law on U.S. officials, including Barack Obama, who swore an oath yesterday to uphold the former document.

All of this couldn’t be more straightfoward as a matter of the relevant legal rules.

I asked the students in my criminal punishment seminar yesterday why the treaty won’t be enforced by the new administration against officials of the old one. A student responded, “because it would be awkward.”

That’s about right I think.

Sixth Amendment Switches

[ 0 ] January 19, 2009 |

In 2000, the Supreme Court ruled in Apprendi v. New Jersey that under the 6th Amendment’s right to a jury trial, any factor that increased a defendant’s sentence had to either 1)be admitted in a plea agreement or 2)proven in front of a jury. (The case was later held to make federal sentencing guidelines advisory rather than binding.) Although it didn’t seem to generate much discussion given the holding on the same day limiting the exclusionary rule, last week the Supreme Court created a siginifcant exception to the Apprendi rule, holding that factors that could permit the application of consecutive rather than cocurrent sentences could be found by a judge alone.

Unlike in many civil lberties cases, this result had nothing to do with Bush’s apponitments. Alito voted with the majority, but the justice he replaced (O’Connor) consistently dissented from Apprendi and its progeny. Somewhat surprisingly, the new Chief Justice dissented in this case while Rehnquist surely would have been with the majority, suggesting that Roberts is slightly more moderate on civil liberties than Alito (of course, so are J. Edgar Hoover and Harry Callahan.) The case came out he way it did because Stevens and Ginsburg switched sides , with the latter writing the majority opinion.

Since I’ve made fun of Scalia’s own flexibility in applying Apprendi in the past, I feel compelled to add that his dissent in this case seems quite devastating to me. The best I can say for Ginsburg and Stevens is that where Scalia flipped in a run-of-the-mill drug and gun possession case, the set of facts in this case were at least genuinely appalling: the defendant twice (after breaking and entering) sexually assaulted an 11-year-old girl. Still, even if we assume for the sake of argument that 28 years would be more just than a lesser sentence, I don’t think that justifies winking at a maor constitutional principle. It seems to me that Apprendi requires that Oregon prove the factors that went into aggravating a sentence be adduced at plea or proven in front of a jury, and I think that principle is sound. As much as I admire both, I think in this case Stevens and Ginsburg used a tough case to make bad law.

Pretending that Bush v. Gore Was Constitutional Law: Minnesota edition

[ 0 ] January 15, 2009 |

Michael Stokes Paulsen, in the fine tradition of Bush v. Gore itself, attempts to argue that the recount that gave the Minnesota Senate election to Al Franken “is an obvious, embarrassing violation of the Constitution.” This argument, as you would expect, consists almost entirely of blatant mischaracterization of the facts:

  • Despite Paulsen’s repeated assertions, Bush v. Gore was not a 7-2 decision. No dissenter joined any part of any majority opinion, including its equal protection analysis.
  • This isn’t just a pedantic point, because the equal protection rationale (such as it was) used by the majority was fundamentally different than the one advanced by the dissenters (which required an appropriate remedy.) Paulsen claims that under Bush v. Gore “Whatever standards Minnesota uses must be applied uniformly, consistently, and under clear standards not admitting of local variation.” I agree it would be nice if this had been Bush v. Gore‘s holding, but of course the Court said no such thing (“The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards.”) Nowhere did the Court claim that complete uniformity was required to comport with “minimal safeguards,” and indeed the Court declined to say anything beyond the specific facts before it. And, of course, the Court’s remedy makes clear that unformity is not a Constitutional requirement, since the recount that gave Bush the office was not remotely uniform. Despite Paulsen’s attempt to skate around this question, you can’t just seperate the remedy from the holding.
  • Like most of the Court’s apologists, Paulsen also convieniently ignores the fact that the Florida courts in 2000 did not use a uniform recound standard because the Supreme Court told them not to. Paulsen has to ignore this, of course, because it destroys his claim that Bush v. Gore stands for a requirement for recounts “not admitting local variation.”)
  • Paulsen asserts that “subsequent media counts confirmed that Bush won anyway, under any uniform standard.” Sadly, no!
  • And, finally, like most “Al Franken stole the election” types, Paulsen never gets around to saying what was wrong with the decisions that favored Franken. The fact that different boards reached different results, of course proves nothing; it doesn’t even prove that they were applying different standards (although the Constitution as currently interpreted clearly allows them to do so anyway.) In particular, he fails to put forward an argument for why improperly excluded absentee ballots shouldn’t be counted, for what I take to be obvious reasons.

Of course, one suspects that Paulsen doesn’t really believe that vote count systems must be uniform (I must have missed his op-eds making such claims when local variations in the vote count came out in Coleman’s favor.) Rather, in a faithful application of Bush v. Gore, we seem to know when a count is sufficiently constitutional at the exact point at which the Republicans win. Fortunately, the Minnesota courts won’t buy it and the Supreme Court isn’t going to revisit its 2000 atrocity.

Gutting the Exclusionary Rule

[ 0 ] January 15, 2009 |

For people who care about civil liberties, it was definitely not a good thing when the Roberts Court decided to hear an exclusionary rule case this term. The Court’s Wednesday decision in Herring v. U.S. confirmed these fears, holding that evidence obtained after an illegal search (police conducted a search based on an expired warrant, which appeared to still be valid because of their own negligence) did not have to be excluded under the circumstances. For reasons I went into in the post linked above, I strongly disagree with the Court’s judgment — the gutting of the exclusionary rule reduces incentives for state officials to comply with constitutional commands.

And it’s even worse than it might have been. Tom Goldstein notes that the case goes well beyond previous exclusionary rule exceptions:

The opinion has nothing to do with the fact that the error here is one of recordkeeping. It applies fully to negligence by police officers in their day-to-day determination whether there is probable cause to conduct a search. If the officer makes an objectively reasonable mistake – i.e., he is merely negligent – the exclusionary rule does not apply to whatever evidence he finds. Put another way, the Supreme Court today extended the good faith exception to ordinary police conduct.

As Breyer noted in his dissent, the Court had previously confined the “good faith” exception to cases where negligence by other actors led police to conduct an illegal search. Contra Breyer, this never made much sense — it’s far from clear why the exclusionary rule should be addressed only to police misconduct rather than illegal actions by all state actors — so the Court refusing to confine the exception to non-police actors has its own grim logic. And while I’m not without a certain sympathy for the idea that it’s appropriate to balance the effects of applying the rule based on the effects on a particular case, the fact that the Court permitted an exception in a run-of-the-mill drug poession and gun case as opposed to a serious violent crime makes clear that the cost-benefit analysis will be done with a 2-ton anvil on the state’s side. There’s no serious weighing of costs and benefits being done here at all.

Finally, it should be noted that once again the purported “minimalism” of Roberts is a complete farce. Roberts and Alito aren’t substantively “minimalist” even if they abjure grand theory, and this will be far from the last 5-4 Roberts decision that (however the opinion chooses to characterize the precedents) revises a substantial body of law in an inevitably reactionary direction.

[X-Posted at TAPPED.]

The Powell Precedent

[ 0 ] December 31, 2008 |

My vacation has limited my blog reading, so I assume someone else has already discussed this. But since I haven’t seen it much, I feel compelled to point out that missed in many discussions about the Burris appointment is the fact that the Senate is probably unable to prevent him from being seated as a matter of constitutional law. The Supreme Court ruled 8-1 (and 8-0 among justices deciding on the merits) in Powell v. McCormack that “in judging the qualifications of its members, Congress is limited to the standing qualifications prescribed in the Constitution.” It is possible to distinguish the cases — the fact that Burris is appointed obviously mitigates the problems with Congress interfering with the integrity of elections that Douglas discusses in his concurrence. Still, the bottom line of Warren’s majority opinion is unequivocal and directly on point; if Burris were to litigate an exclusion a lower court would almost certainly rule in his favor, and I doubt that the Supreme Court would overrule. The Senate could expel him after seating with a 2/3 majority, but (absent strong evidence that Burris obtained the appointment illegitimately) this seems unlikely. Reid’s remedy is likely to be to prevent him from joining the Democratic caucus.

I would also add that I think that the principle in Powell is sound and should apply to this case. It’s important to remember that the seat belongs to Burris, not Blagojevich. Powell was entitled to his seat despite some credible evidence of self-dealing (although there was certainly a racist double standard in the Senate’s sudden discovery of pure ethics in Powell’s case.) It’s hard to argue that the alleged corruption of a third party should allow Congress to prevent Burris from taking his seat when the alleged corruption of the member himself did not. The fact that he was elected rather than appointed tips the scales back, but not enough; if Burris was appointed legitimately (and he was), I don’t think the Senate can or should exclude him before the fact. If Illinois doesn’t want Blagojevich to exercise the powers of his office, it should impeach him.

UPDATE: Jack Balkin argues that Powell in fact can be distinguished. For the reasons discussed above, I don’t find his argument convincing, at least as a normative matter. The biggest omission is any evidence that the appointment of Burris was in any way illegal. If credible evidence that Burris bribed Blagojevich emerges, then I agree that the Senate can properly refuse to seat him. Otherwise, his appointment was legal, he is fully qualified, and the Senate cannot refuse to seat him without effectively overruling Powell. Since I think the case was correctly decided, that settles the question for me.

That Word "Absolutism," I Do Not Think…

[ 6 ] December 8, 2008 |

I was amused to see Ross Douthat claim that “[A]n iron law of recent American politics dictates that any Republican setback at the polls will be quickly pinned on the pro-life movement.” I certainly agree that (pace William Saletan) national elections are not referenda on the abortion issue. But in fact, the Republicans’ unpopular abortion policies have been consistently given undue credit for Republican electoral victories, to the extent that the real “Iron Law” is that every time the Democrats lose an election an army of pundits will claim that the solution is for the Democrats to abandon their popular support for Roe v. Wade. This is just the beginning of the problems with the op-ed — Steve M. identifies the most remarkable one, Douthat’s argument that the “pro-life” movement compromised by…reducing terrorism against American women and medical professionals who serve them. How thoughtful! And, of course, this wasn’t really so much a decision of the movement as the result of federal legislation (that substantial numbers of anti-choice legislators opposed.)

In addition, let’s consider Douthat’s assertion that Planned Parenthood v. Casey is a “monument to pro-choice absolutism.” I’d have to say that, given that the “undue burden” standard has been interpreted to uphold every common regulation of abortion with the exception of spousal notification requirements, Casey represents the most compromised “absolutism” in history. Indeed, one wonders if part of the reason polls reflect a desire for more restrictions is that op-ed editors are willing to let anti-choice pundits simply lie about the state of the law.

Compare, for example, the regulatory regime permitted under current Supreme Court doctrine with the French system, which Douthat sees as an acceptable “compromise.” The only major differences in terms of restrictions are that 1)the period before which a woman’s choice can merely be regulated rather than banned is a little shorter, and 2)after this period 2 doctors rather than one has to certify that an abortion is necessary for the woman’s health. Whether this is more restrictive on the ground depends entirely on how French doctors interpret this standard. Douthat shows no interest in how abortion laws actually work (and I suppose that’s a necessary condition if you’re going to support criminalization.) But given that France has similar abortion rates to Canada — where abortion is almost entirely unregulated — one doubts that the standards applied by French doctors are very stringent. Admittedly, the differences Douthat mentions aren’t the whole story. He leaves out two very important facts about the French system: the state-funded medical care and the availability of RU-486 (which greatly mitigates the effect of arbitrary waiting periods.) Taking everything into account, it’s arguable that abortion is more practically accessible under the French system. I would certainly (if reluctantly) support a couple of Douthat’s cherished treat-women-as-children regulations if I could secure a repeal of the Hyde Amendment and widely available mifepristone in return. And the idea that Casey represents “absolutism” is utterly absurd.

Bad ideas in the form of constitutional law

[ 0 ] November 24, 2008 |

Sandy Levinson, a professor of law and political science, has been arguing for several years now that academics pay way too much attention, relatively speaking, to the rights provisions of the Constitution, and not nearly enough to what he calls its hard-wired structural features. One reason this is so is obvious: the hard-wired features don’t produce any litigation to argue about.

A nice example is the 20th amendment. 73% of law professors and 99.95% of normal humans can’t tell you anything about it, but what it did was, among other things, close the gap from the presidential popular vote to the inauguration from 4 months to two and a half. Four months made a certain amount of sense in the 18th century, before Blackberries and Wi-Fi, but can anybody come up with an argument for why, in 2008, in the middle of a severe financial crisis, etc. etc., it’s a good thing for us to be stuck with two and a half more months of George W. Bush in the lamest of duck blinds, while Obama “signals” this and “hints” at that?

It doesn’t make a lick of sense, but it’s in the Constitution so we’re stuck with it, more or less. Like a lot of other stuff.

California Same-Sex Marriage Ruling

[ 0 ] May 15, 2008 |

The California Supreme Court, six of whose seven members are Republicans, has ruled that the exclusion of same-sex couples from the legal benefits is unconstitutional (pdf). The opinion isn’t lucidly formatted but if I count the votes correctly it was a 4-3 decision [confirmed here.]

After finding that marriage is a fundamental right (a premise that should be uncontroversial), the majority holds that the policy cannot survive strict scrutiny: “the purpose underlying differential treatment of opposite-sex and same sex couples…cannot properly be viewed as a compelling state interest for the purposes of the equal protection clause, or as necessary to serve such an interest.” The narrow tailoring argument is I think where the exclusion of same-sex couples from marriage benefits really runs into constitutional problems; it is hard to argue that there are state interests in marriage that cannot be advanced in any other way but to exclude same-sex couples. I will have more on the text later, but if I read it correctly the court seems to require, like the Massachusetts court ultimately did, that reserving the label “marriage” for different-sex marriages is unconstitutional.

I’ll have more on the decision later, but a few points should be made at the outset:

  • First, claims that the decision that the court “usurped” the legislature should be undermined by the fact that the legislature passed legislation recognizing same-sex marriage, but had the legislation vetoed by the governor, who urged the court to resolve the issue.
  • Second, you will read claims that the decision will spark a massive backlash; keep in mind that the same people made the same argument about judicial decisions in Massachusetts and New Jersey and were mostly wrong.
  • Finally, Kevin Drum notes that there will almost certainly be a vote in the issue in the November; hopefully a majority of citizens will not vote to repeal the rights of some California citizens.

another good excerpt from K-Drum. Sullivan excerpts the court’s explanation for why strict scrutiny should apply.

The Supreme Court and the Vote Fraud Fraud

[ 3 ] April 28, 2008 |

The Supreme Court’s decision upholding Indiana’s vote ID law was unable to secure 5 votes for a single rationale. Stevens, in an opinion joined by Kennedy and Roberts, rejected the facial challenge to the law but left open the possibility of future litigation if it was proven to be an undue burden. Scalia, in a concurrence joined by Thomas and reasonable, moderate Samuel Alito wanted to foreclose future litigation. (I assume Stevens may have joined the majority partly to keep Kennedy and Roberts on board with a more minimalist opinion.)

The key problem with the decision to uphold the statute is summed up in Souter’s dissent: “a State may not burden the right to vote merely by invoking abstract interests, be they legitimate, see ante, at 7–13, or even compelling, but must make a particular, factual showing that threats to its interests outweigh the particular impediments it has imposed. The State has made no such justification here, and as to some aspects of its law, it has hardly even tried.” Consider this remarkable passage from the Stevens opinion:

The only kind of voter fraud that SEA 483 addresses is in-person voter impersonation at polling places. The record contains no evidence of any such fraud actually occurring in Indiana at any time in its history. Moreover, petitioners argue that provisions of the Indiana Criminal Code punishing such conduct as a felony provide adequate protection against the risk that such conduct will occur in the future. It remains true, however, that flagrant examples of such fraud in other parts of the country have been documented throughout this Nation’s history by respected historians and journalists, that occasional examples have surfaced in recent years, and that Indiana’s own experience with fraudulent voting in the 2003 Democratic primary for East Chicago Mayor—though perpetrated using absentee ballots and not in-person fraud—demonstrate that not only is the risk of voter fraud real but that it could affect the outcome of a close election.

So the only type of fraud shown to have occurred in Indiana history is a type the statute specifically doesn’t address, and as it happens this apparently irrational choice happens to coincide with the partisan interests of the legislators who enacted the statute. This really isn’t good enough if you want to burden the fundamental right to vote.

The other thing to mention is that the “as-applied” challenge is problematic in the context of elections, because there generally isn’t a good remedy. It’s unlikely in the extreme that if the burdens imposed by the statute were decisive that the election would be run again. The better option would have been to strike the legislation and invite the legislature to craft legislation more closely tailored to its asserted interests.

…More from Rick Hasen and Publius.

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