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Tag: "Supreme Court"

O’Connor v. Donaldson and Involuntary Confinement

[ 13 ] January 14, 2011 | Scott Lemieux

To follow up on Greenwald’s response to William Galston’s call to make more people subject to involuntary civil confinement, it’s worth discussing the case in which the Supreme Court held that the state cannot “constitutionally confine…a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.” The underlying facts of O’Connor v. Donaldson are disturbing, and should (to put it mildly) give pause to those who would use the Tuscon shooting to expand the state’s powers of civil confinement. From Stewart’s opinion for the Court:

The testimony at the trial demonstrated, without contradiction, that Donaldson had posed no danger to others during his long confinement, or indeed at any point in his life. [Hospital superintendent] O’Connor himself conceded that he had no personal or second-hand knowledge that Donaldson had ever committed a dangerous act. There was no evidence that Donaldson had ever been suicidal or been thought likely to inflict injury upon himself. One of O’Connor’s codefendants acknowledged that Donaldson could have earned his own living outside the hospital. He had done so for some 14 years before his commitment, and, immediately upon his release, he secured a responsible job in hotel administration.

Furthermore, Donaldson’s frequent requests for release had been supported by responsible persons willing to provide him any care he might need on release.

This case receives a fairly lengthy discussion in The Brethren, because it was a classic example of Burger’s incompetent handling of the Court — he assigned the opinion to himself despite the other justices at conference seeming to want a different focus, and the result was that he ended up receiving zero joins for his would-be majority opinion. But what’s striking for our purposes is that while Woodward and Armstrong report significant disagreement about the appropriate remedy, with the possible exception of Burger every justice (including Rehnquist!) was appalled by what had been done to Donaldson; this wasn’t a Brennan/Marshall crusade.

There are very good reasons, in other words, to confine civil confinement to cases where a person poses a demonstrable danger to herself or others. In retrospect, we can see that Jared Lee Loughner was genuinely dangerous rather than merely unpleasant or eccentric, but making these calls before the fact is overwhelmingly likely to produce an intolerable number of false positives. Criminalizing mental illness is a bad idea, and we should not let the Giffords shooting lead us in that direction.

The Wit and Wisdom of Anthony M. Kennedy

[ 31 ] January 14, 2011 | Scott Lemieux

Some radical Trotskyites on the Kentucky Supreme Court decided to ignore the new, annotated Federalist Society version of the Constitution, which includes the crucial provision “please disregard all previous clauses if the War (on Some Classes of People Who Use Some) Drugs is involved,” resulting in oral arguments at the Supreme Court earlier this week. The case involves a warrantless search undertaken because police searching for another offender believed they smelled drugs being consumed behind another door. Dahlia Lithwick’s report suggests a strong likelihood that the Supreme Court will use the Federalist Society version and are therefore “poised to eviscerate the warrant requirement in a broad class of “exigent” situations.” Depressing, although far from surprising. The whole thing is worth reading, but I especially liked this passage about some, ah, method acting from Kennedy:

Here’s Chief Justice John Roberts, for example, describing the average jailbreak: “I assume the ordinary prison escape is—I don’t know—over the wall, under the tunnel, or, you know, while the guard’s looking a different way.” Justice Anthony Kennedy wonders aloud: “This may be a bit rudimentary, but can you tell me why isn’t the evidence always being destroyed when the marijuana is being smoked? Isn’t it being burnt up?” And then Justice Antonin Scalia expounds on the need for zealous police enforcement powers, up to and including the right to search your home without a warrant, because, as he explains, “there are a lot of constraints on law enforcement, and the one thing that it has going for it is that criminals are stupid.”

Whoa, like, deep, man. I think we might want to consider some warrantless, no-knock seraches of chambers at the Supreme Court…

Clues About the Supreme Court and the ACA?

[ 8 ] January 13, 2011 | Scott Lemieux

I have some thoughts about what the Supreme Court’s refusal to grant cert in a commerce clause case (with an angry dissent from Thomas) might mean for the constitutionality of the individual mandate. The short version: probably not much. It does make it an odds-on favorite that Scalia will vote to hold the mandate unconstitutional, but given that the case involves the regulation of health care rather than pot this isn’t shocking. Otherwise, we don’t know a lot more than we did — I’m still guessing there will be 5 votes to uphold the mandate, but that’s because I believed that ex ante.

The Un-American Antonin Scalia

[ 32 ] January 11, 2011 | Scott Lemieux

Via Ian Millhiser, I am shocked and appalled by this un-American passage in Antonin Scalia’s solo dissent today:

The canon against superfluity is not a canon against verbosity. When a thought could have been expressed more concisely, one does not always have to cast about for some additional meaning to the word or phrase that could have been dispensed with. This has always been understood. A House of Lords opinion holds, for example, that in the phrase “ ‘in addition to and not in derogation of ’ ” the last part adds nothing but emphasis.

Someone needs to tell the Supreme Court that we need to rely on good, old-fashioned American standards of statutory construction, and keep dirty foreign law out of it!

Seriously, there is of course nothing the slightest bit objectionable about citing a foreign court as part of a larger argument about American law. This whole “citing foreign law” controversy, which Scalia has at times attempted to stoke, is just culture war rube-running, invoked solely to argue against outcomes people disagree with for independent reasons. And citations of foreign law are hardly just a recent development. Does anyone think it was illegitimate of Maclean to cite the “general law of nations” in his Dred Scott dissent?

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Now That’s Restraint

[ 65 ] January 5, 2011 | Scott Lemieux

In pointing out that it’s hard to square Antonin Scalia’s assertions that the 14th Amendment provides no protection for gender equality with the rest of his jurisprudence, I didn’t even haul out the heaviest artillery. I think it’s safe to say that none of the framers or ratifers of the 14th Amendment thought they were voting for the principle that “states have to have uniform standards for vote counts and recounts,” let alone “states have to have uniform recounts if non-uniform ones might lead to the defeat of the candidate favored by a majority of the Supreme Court, but not in any other case.”

…on a somewhat realted note, Scalia’s originalist take on pizza reminds me of Sherry and Faber on latkes and constitutional theory. Of course, the Scalia entry should be modified to read “unless the election of George W. Bush requires making latkes, in which case any recipe will work.”

Sotomayor

[ 13 ] December 30, 2010 | Scott Lemieux

“Home Run” might be a little premature, but at the least a stand-up triple of an appointment:

Justice Sotomayor has completely dispelled the fear on the left that her background as a prosecutor would align her with the court’s more conservative members on criminal justice issues. And she has displayed a quality — call it what you will — that is alert to the humanity of the people whose cases make their way to the Supreme Court.

It seems worth noting that the Rosen hatchet job looks even worse now than it did at the time.

Lind and the Pentagon Papers Case

[ 36 ] December 22, 2010 | Scott Lemieux

A few points about Michael Lind’s argument here:

Even if WikiLeaks is defined as a news organization, American law allows both prior injunctions halting publication of government secrets and prosecutions of media organizations following publication, in certain circumstances. In New York Times v. Sullivan, the Pentagon Papers case, the Supreme Court held that the government failed to pass a heavy test in trying to prevent publication of state secrets in advance — but conceivably in some cases that test could be met. And according to the Court, the federal government had the right to prosecute the New York Times and the Washington Post after publication, although it chose not to. The government’s case against Daniel Ellsberg and Anthony Russo for leaking the Pentagon Papers was thrown out because of the gangster-like methods used against them by Richard Nixon’s sinister “plumbers,” not because the government lacked the power to prosecute them under the Espionage Act.

  • The case is NY Times v. U.S., not Sullivan (the landmark 1964 libel case.)
  • Lind’s assertion that the Court said that the government had the “right” to prosecute the newspapers is, at best, deeply misleading.   It implies that the Court found that such a prosecution would not violate the First Amendment, but the Court’s three paragraph per curiam is entirely silent on the subject of an after-the-fact prosecution.
  • Similarly, while the Court did theoretically hold open the possibility that prior restraints on the press would be constitutional, it is exceptionally unlikely that any of the WikiLeaks material would come close to meeting that burden, which must involve immediate and direct harm (such as revealing troop positions for an imminent attack.)
  • It is true that (absent the Nixon administration’s other illegal actions) the government had the authority to prosecute Ellsburg, but that’s conflating two very distinct issues:  stealing/directly leaking classified data and publishing data leaked by a third party.    Wikileaks is comparable to the newspapers, not to Ellsburg.   The government has the legitimate authority to prosecute Bradley Manning (although it shouldn’t have the authority to torture him.)    That’s an entirely different question for whether the government can prosecute Assange, and even after the fact it faces an extremely high First Amendment burden.   I very strongly doubt that a prosecution of either Assange or the New York Times for publishing the leaks could pass constitutional muster.   And if it did, the chilling effect would be appalling.

Corporations and the Court

[ 10 ] December 21, 2010 | Scott Lemieux

The findings of the Epstein/Landez Posner study about the increasing tendency of the Supreme Court to side with business interests aren’t surprising, but the data is useful to have anyway. This kind of study of judicial behavior has its limitations, but the trend is pretty clear here, and is in part of a very conscious strategy of both outside groups and the politicians who nominate and confirm judicial appointments.

“Wholly Without Merit”: The 10th Anniversary of Bush v. Gore

[ 24 ] December 13, 2010 | Scott Lemieux

Today is Yesterday was the 10th Anniversary of the Supreme Court’s disgraceful  Bush v. Gore decision.   Where exactly the decision ranks among the worst decisions in Supreme Court history depends on what metric you’re using.   Certainly, the Supreme Court has issued many, many more immoral rulings throughout its history.    But Dred Scott, Plessy, U.S. v. Cruikshank, Hammer v. Dagenhart, et al. were at least based on intelligible constitutional principles — evil principles, but actual principles, in each case shared by a substantial measure (if not an overwhelming majority) of the country’s political elites.    One can say the same thing of most of the other Rehnquist and Roberts Court decisions that have generated significant criticism — McCleskey v. Kemp and Parents Involved and Citizens United might have been based on the wrong constitutional principles, but they do rest on actual constitutional principles.   Bush v. Gore is different, in that it was essentially lawless all the way down.   Not only was the legal “principle” announced in the case flagrantly inconsistent with the past jurisprudence of the majority, even more unforgivably the nominal principle wasn’t even applied to the case itself.     What the Supreme Court does is inevitably “political” in a broad sense, but not necessarily in the sense of narrow partisan politics or favoring particular litigants.

For those interested in further expansion on these points, some of my previous posts on the topic:

Equality’s Unlikely Champion

[ 8 ] December 10, 2010 | Scott Lemieux

Occasioned by his recent NYRB article about the death penalty, I have a new American Prospect article about John Paul Stevens and equal protection. I think that his relatively obscure solo dissent in  Armstrong v. U.S. is particularly instructive, both about Stevens’s understanding of equal protection and the extent to which Breyer and Ginsburg did not fill the void on the Court left by Brennan and Marshall:

The “war on drugs” is an area of public policy where racial discrimination has been particularly egregious. So the relatively obscure case Armstrong v. U.S. provides an illuminating example of Stevens’ criticism of the Court’s approach to equal protection. In that case, the Court prevented defendants indicted for offenses involving “crack” cocaine from examining evidence from the files of the U.S. attorney’s office. It did so despite the fact that the defendants provided clear evidence of systemic discrimination (as Stevens noted, “While 65% of the persons who have used crack are white, in 1993 they represented only 4% of the federal offenders convicted of trafficking in crack”) and provided at least anecdotal evidence of discrimination on the part of the U.S. attorney.

As Stevens explained, combined with McCleskey, the case created what should be a constitutionally intolerable catch-22: Defendants have to provide evidence of individualized rather than systematic discrimination, but the Court then establishes conditions that make proving individualized discrimination impossible. Yet this effective sanctioning of racial discrimination in the criminal-justice system was sanctioned by the other eight justices, including Democratic appointees Stephen Breyer and Ruth Bader Ginsburg.

The formalist Catch-22 con has been run by the Court’s conservatives pretty much since the ink on the 14th Amendment was dry. Even in its most white supremacist periods, the Supreme Court wouldn’t uphold laws that explicitly prevented African-Americans from voting or serving on juries. As long as states excluded African-Americans by applying formally race-neutral laws in a discriminatory manners, however, the Supreme Court washed its hands, creating standards that made it essentially impossible to prove discrimination. The nice Kafkasesque circle of denying the relevance evidence of systemic discrimination and then making it nearly impossible to prove individualized discrimination is just the latest iteration. You’d think that if being a liberal justice meant anything, it would be to see through this — and yet the moderate Illinois Republican dissented alone.

Court, Alas, To Hear Wal-Mart Discrimination Case

[ 9 ] December 7, 2010 | Scott Lemieux

It’s hard to imagine anything good coming from the Supreme Court’s decision to grant cert in the Wal-Mart class action discrimination case.   Republican Supreme Court Justices have been crucial to the long-running Republican project of nominally keeping civil rights statutes on the books while making them as difficult as possible to enforce in practice.  This case seems all-too-likely to create a precedent that will make it more difficult for employees who have been discriminated against to get remedies in court.   The ability to file class-action suits (and obtain monetary damages) are critical not only to vindicating rights violations but to create incentives that inhibit future discrimination.

At least the case doesn’t concern whether or not gender discrimination occurred per se.   I’m not looking forward to the day when Chief Justice Roberts announces that “the way to stop discrimination on the basis of gender is to stop inquiring about whether corporations discriminate on the basis of gender.”   But this news is bad enough.

The Article II Defense of Bush v. Gore

[ 9 ] November 29, 2010 | Scott Lemieux

On the Twitter today, Jacob Levy made the half-defense of Bush v. Gore perhaps most commonly made by smart people: the majority opinion was indefensible, but the outcome is not, because the Rehnquist concurrence (arguing that the Florida courts violated the provision of Article II that the “State shall appoint [electors] in such Manner as the Legislature thereof may direct”) was persuasive.*

I actually think something like the opposite is true. In the abstract, the holding that the arbitrary differences in ballot-counting found in the Florida system violated the equal protection clause is not entirely unreasonable. There’s no real precedent for it, it’s especially inconsistent with the typical conservative interpretations of the 14th Amendment, and the way in which the majority applied the alleged holding was so flagrantly unprincipled it approached lawlessness, but the holding itself is not inconsistent with the text, structure, or purpose of the 14th Amendment.

The Rehnquist concurrence, though, is just specious on its face. As Ginsburg pointed out in her dissent, the fact that Article II gives state legislatures (as opposed to courts) the authority to regulate presidential elections doesn’t in itself say anything about the legitimacy of the actions of the Florida Court — “The Framers of our Constitution, however, understood that in a republican government, the judiciary would construe the legislature’s enactments.” (Indeed, the majority opinion did just that when it assumed that the Florida legislature intended to take advantage of the “safe harbor” provision to justify shutting down the recount.) So if the argument is to hold water, Rehnquist has to show that the Florida Supreme Court’s decision distorted Florida law to such an extent that it was not engaging in jurisprudence at all. This is a radical argument that places a very high burden of proof on the United States Supreme Court.

Given the law that is being construed, however, this is a frankly ridiculous claim. The statute governing contested elections specifically gave the courts the authority to “provide any relief appropriate under such circumstances.” There may be extreme circumstances in which a state court might distort state law to such an extent that it could be usurping the will of the legislature. But surely a case in which the legislature broadly delegated the ability to provide remedies to the courts cannot be one of them.

There are many things one can criticize O’Connor and Kennedy for when it comes to this case, but the failure to join the Rehnquist concurrence isn’t one of them. It did not constitute a remotely adequate defense of a federal intervention into the electoral dispute in Florida.

*In comments, Jacob notes that “My claims were more modest: “colorable” and “credible”– not “correct” or “persuasive” or “adequate.””  Point taken, although I think “credible” and “adequate” are essentially the same thing.

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