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Tag: "Supreme Court"

So Much for the Rule of Law

[ 5 ] April 9, 2008 |

I have to say, I have mixed emotions about the New York Times’s decision to replace Linda Greenhouse with Adam Liptak. I’m afraid it is going to defang him and render him unable to really dig into political topics with a definite viewpoint. Like, say, he did in his Sidebar column yesterday.

This week, Liptak takes on the Border Fence. More specifically, he is scratching his head about Congress’s 2005 decision to give the Secretary of Homeland Security the power to suspend any federal law that was interfering with border control. Literally. And, not only that, but to suspend judicial review of his decisions so that courts cannot tell him that he has crossed the line.

Securing the nation’s borders is so important, Congress says, that Michael Chertoff, the homeland security secretary, must have the power to ignore any laws that stand in the way of building a border fence. Any laws at all.

Last week, Mr. Chertoff issued waivers suspending more than 30 laws he said could interfere with “the expeditious construction of barriers” in Arizona, California, New Mexico and Texas. The list included laws protecting the environment, endangered species, migratory birds, the bald eagle, antiquities, farms, deserts, forests, Native American graves and religious freedom.

The secretary of homeland security was granted the power in 2005 to void any federal law that might interfere with fence building on the border. For good measure, Congress forbade the courts to second-guess the secretary’s determinations. So long as Mr. Chertoff is willing to say it is necessary to void a given law, his word is final.

Thankfully, in the wake of Chertoff’s decision to suspend 19 environmental laws that stood in the way of the fence-building, two environmental groups have brought a lawsuit to challenge the delegation of power as an unconstitutional violation of the separation of powers. They’re likening it to the Line Item Veto, which the Supreme Court struck down several years ago. The D.C. Circuit disagreed, but now the case may be headed to the Supremes.

Liptak’s views on the issue are only thinly veiled:

People can disagree about the urgency of border security and about whether it is more or less important than, say, the environment. Congress is entrusted with making those judgments, and here it has spoken clearly. In the process, it has also granted the executive branch more of the sort of unilateral power the Bush administration has so often claimed for itself.

No one doubts that Congress may repeal old laws through new legislation. But there is a difference between passing a law that overrides a previous one and tinkering with the structure of the Constitution itself. The extraordinary powers granted to Mr. Chertoff may test the limits of how much of its own authority Congress can cede to another branch of the government.

How many times is it now that the Bush administration has tested the limits of executive power? I have definitely lost count. And Congress may be the biggest culprit here. It was a different Congress in 2005, but this Democratically-controlled Congress hasn’t done much to right that Congress’s wrongs. At this point, it may all hang on Justice Kennedy.

No wonder Liptak’s hackles are up.

Score One For Legal Realism

[ 0 ] April 1, 2008 |

The Supreme Court’s decision today in New Jersey v. Delaware was decided in favor of the latter. The two dissenters? Trenton’s Antonin Scalia and Trenton’s Sam Alito. (Well, Stevens dissented in part, but to argue that the rule announced by the Court was insufficiently protective of Delaware’s sovereignty.)

The Individualized Second Amendment

[ 46 ] March 19, 2008 |

The first question about the D.C. gun case is, how will they rule? Reporters who observed the oral argument today seem nearly certain that 1)a majority of the Court will find some individual right to gun ownership in the Second Amendment, and 2)the D.C. gun ban will be struck down. All observers also point out that most of the interesting questions will come in the scope of the Second Amendment rights identified by the Court: what kind of regulations short on an outright ban of a large class of gun might pass constitutional muster? Given the minimalism that tends to characterize the late Rehnquist and Roberts Courts, my guess is that they will say very little about how the newly identified right will apply in future cases. (Scalia’s dismissal of Dellinger’s claim that finding an individual right would make it harder to ban machine guns or armor-piercing bullets makes it unlikely that even he will press for a particularly broad rule.)

The other question is whether this is a good thing. As with most constitutional issues of any interest, the text is unclear and can plausibly support both positions, so we’re left with a largely pragmatic judgment. I don’t really have a problem with where the Court seems headed. At least in a context of a federal system where weapons can be easily acquired right outside District limits, it’s hard to argue that the D.C. ban is an especially effective public safety measure, and it’s a very broad restriction. And although I’m often skeptical of minimalism, I think in this case leaving future cases open to particularized judgments that balance Second Amendment rights against the reasonableness and effectiveness of regulations makes a lot of sense.

The Chamber Of Commerce Court

[ 8 ] March 17, 2008 |

Jeffrey Rosen’s article about the pro-business court — the Chamber of Commerce’s “litigation center filed briefs in 15 cases and its side won in 13 of them” — is very much worth reading. It’s worth being reminded, again, that although court watchers tend to divide the Court into symmetrical groups of “liberals” and “conservatives” there’s no Marshall or Douglas or Brennan on the current Court, as evidenced by the Chamber’s enthusiastic support of Ginsburg and (especially) Breyer. It’s instructive that the Court’s two Democratic appointees are no more liberal than its two Rockefeller Republicans.

I do think some parts of the general assessment of the Court that starts this analysis should be qualified:

What should we make of the Supreme Court’s transformation? Throughout its history, the court has tended to issue opinions, in areas from free speech to gender equality, that reflect or consolidate a social consensus. With their pro-business jurisprudence, the justices may be capturing an emerging spirit of agreement among liberal and conservative elites about the value of free markets. Among the professional classes, many Democrats and Republicans, whatever their other disagreements, have come to share a relatively laissez-faire, technocratic vision of the economy and are suspicious of excessive regulation and reflexive efforts to vilify big business. Judges, lawyers and law professors (such as myself) drilled in cost-benefit analysis over the past three decades, are no exception. It should come as little surprise that John Roberts and Stephen Breyer, both of whom studied the economic analysis of law at Harvard, have similar instincts in business cases.

This elite consensus, however, is not necessarily shared by the country as a whole. If anything, America may be entering something of a populist moment. If you combine the groups of Americans in a recent Pew survey who lean toward some strain of economic populism — from disaffected and conservative Democrats to traditional liberals to social and big-government conservatives — at least two-thirds of all voters arguably feel sympathy for government intervention in the economy.

Seeing the Supreme Court as an adjunct of a social consensus is a more accurate reductionism than seeing the Court as a valiant defender of powerless minorities, but it’s a little problematic. The Court, because of the appointment process and its own inherent institutional weaknesses (especially its reliance on other political actors to enforce its commands), is unlikely to stray outside a broad range of political acceptability for long. But on many important issues, a social consensus doesn’t exist, and as long as the Court has some support among powerful elites it has more range of action than the idea that the Court follows the opinion polls might imply. In the long run, this is likely to mean a Court that’s more libertarian than the median voter. And while talk about restoring a “Constitution in Exile” is overblown, just as the late Rehnquist Court was more socially liberal than the Republican-controlled Congress so is the current Court likely to make it more difficult for Democratic Congresses and presidents to enact desirable regulations and (especially) to enforce existing ones, even if these laws are broadly popular. Indeed, as the article demonstrates the Republican-dominated Court heps Republicans in Congress greatly, as it makes it harder to do thing like enforce civil rights legislation without forcing conservative legislators to modify the legislation and take the hit.

Where Is The Next Liberal Justice Coming From?

[ 34 ] February 28, 2008 |

Jeffrey Rosen brings up an interesting point about the judicial options for the next Democratic president. The recent Republican dominance of the White House leaves the Democrats with a very small group within the most desirable target candidates (relatively young, female or Hispanic, significant appellate court experience.) This will especially be true if the President has to appoint a justice quickly and doesn’t have time to install a future candidate as Bush did with Roberts. I definitely like the idea of perhaps going outside the appellate courts for a first nominee; as Rosen notes many fine justices have come from that background. Rosen also usefully reminds that Elena Kagan, a potentially strong candidate, “was nominated to the D.C. Circuit at the end of the last Clinton administration and never got a hearing.” Why, it’s almost enough to make me think that the Deeply Principled Republican arguments that Teh Constitution!!!!111One!!!1! requires nominees to get an up-or-down vote were a cynical ruse.

This is also an interesting point:

But a choice like this might be controversial among Democratic activists in the John Edwards wing of the party, who feel the current Democratic justices are already too sympathetic to business. The statistics here bear them out. On the Roberts Court, both Democratic and Republican justices have been remarkably pro-business: The Chamber of Commerce won 13 of the 15 cases in which it filed friend-of-the-court briefs last year, many by near-unanimous margins. In light of this, some Democratic interest groups may prefer a more populist candidate without an extensive resume as a corporate lawyer.

Yesterday’s oral argument in the Exxon Valdez punitive damages case starkly revealed Roberts’s slavish pro-business tendencies, but Breyer — who has joined (and written) opinions finding limits on punitive damages in the due process clause — at times also appeared sympathetic to Exxon’s arguments. Cases involving business interests is an area where the relative moderation of the current Court’s more liberal faction is particularly important.

Exclusionary Rule Back On the Chopping Block

[ 12 ] February 20, 2008 |

I cringe whenever I see that the Roberts Court is taking a case like this:

In theory, a criminal-law doctrine known as the exclusionary rule forbids prosecutors from using evidence obtained by the police as the result of an improper search. In practice, the rule has significant exceptions, like for evidence obtained in good faith through reliance on an invalid search warrant or as the result of erroneous information from a court official.

Justices on the current Supreme Court have made no secret of their desire to carve more exceptions out of the nearly 100-year-old exclusionary rule. On Tuesday, the court accepted a new case that could provide a route toward that goal.

The question in the case is whether the list of exceptions should be expanded to include evidence obtained from a search undertaken by officers relying on a careless record-keeping error by the police.

As Greenhouse points out, the disdain expressed for the exclusionary rule in the Hudson decision last year, which in yet another manifestation of the War On (Some Classes of People Who Use Some) Drugs being where civil liberties go to die refused to apply the exclusionary rule to illegal “no-knock” searches, makes clear that this decision is unlikely to be favorable to the protection of civil liberties. The Rehnquist Court has already held that — for no remotely convincing reason — the exclusionary rule shouldn’t be applied when the illegality was the result of a bad warrant rather than directly illegal police behavior. It seems pretty obvious that an even more reactionary court that illegal behavior by one branch of the police won’t require evidence obtained by other police officers as the result of the illegality to be suppressed. The fake-minimalist Roberts Court won’t overturn the exclusionary rule, just continue to gut it.

I explained last year why I think reducing the exclusionary rule to an empty shell is a bad thing. To repeat, “[w]hen Congress passes the “Ice Cream Castles In The Air. And A Pony!” act creating an effective, viable civil remedy for this particular violation of the 4th Amendment I might happily join” opponents of the exclusionary rule, but until then it’s the best remedy available. And it’s misleading to claim that the rule can’t benefit innocent victims; this is true in individual cases, but the larger effect of the exclusionary rule is to encourage professionalism and legality by the state by removing incentives to violate rights. The trend of the Rehnquist and Roberts Courts making it clear that the police can usually find a way to get illegally obtained evidence admitted creates the opposite incentives.

On the Voter ID Case

[ 5 ] January 10, 2008 |

I have more thoughts here.

The Voter Fraud Fraud

[ 16 ] January 10, 2008 |

In the wake of yesterday’s oral argument in the Indiana voting rights case, Crawford v. Marion County Election Board, in which the Bush v. Gore majority played ping pong with Paul Smith, the lawyer for the Indiana state Democrats challenging the law, facial challenges to laws that are allegedly unconstitutional seem shakier than ever.

Dahlia tells us why
:

The real problem with Crawford v. Marion County Election Board is that the whole case is a dance of the seven veils. By which I mean that voter-identification laws are phony ways to solve pretend problems, while today’s challenge to those laws is thin on evidence of real voters who’ve suffered real harms. A chimera doing battle with a fantasy. Oh, goody.

The problem is this: the Indiana law, which was passed by a Republican legislature, signed by a Republic governor, and upheld by judges appointed by Republicans talks a big game about preventing voter fraud in Indiana, despite the fact that voter fraud has yet to be proven. Why? Because the people stopped from voting by laws like this “skew Democrat” in the words of a 7th Circuit Court of Appeals judge. But because the law was challenged before an election took place, there are no people with actual injuries as plaintiffs. That is, no one who is a plaintiff has actually been prevented from voting. Which is the nub of the problem for this case, and which left a huge gaping hole through which Scalia and his cronies could argue that the Democrats didn’t have standing to bring this case (a facial challenge) at all, and would have to wait til someone was prevented from voting to bring an “as applied” challenge. Trouble is, once that happens, as Justice Ginsberg put it, the horse is out of the barn. The person can’t get their vote back. And a unjust election has taken place.

What’s particularly interesting here is the way in which the conservatives on the Roberts court are chipping away at people’s ability to bring facial challenges when they believe a law violates their constitutional rights, even if the law has yet to go into effect. Dahlia’s take on how the oral argument yesterday plays into this:

With increasing frequency, the court’s conservative wing has been chipping away at facial challenges (the better to bar litigation), and today Scalia takes out a sledgehammer: “I mean, every facial challenge is an immense dictum on the part of this court, isn’t it?” He goes on to characterize all facial challenges as the court “sitting back and looking at the ceiling and saying, oh, we can envision not the case before us, but other cases …”

Trouble is, facial challenges are the bread and butter of progressive civil rights advocates. They burden potential plaintiffs less than as applied challenges do and they help ensure that people can challenge laws without being forced to wait and sacrifice their constitutional rights. And the Roberts court – Scalia particularly – thinks these are odious. We’ve already seen it in Gonzales v. Carhart, where the Court upheld the federal abortion ban, but left open the possibility that the law could be challenged on an as-applied basis, where it could be proven that the banned procedure was the only way to protect a woman’s health. This, of course, is a total farce. Imagine the woman who needs the procedure. She is sick and pregnant and needs to terminate her pregnancy in order to preserve her own health or life. But in order to do so, she has to go through the courts (an onerous, expensive, and often lengthy process). Even on an emergency basis, it’s hard to imagine than an answer could come quickly enough from big Daddy Supreme Court.

Or, as Lithwick says at the end of her recap of yesterday’s oral argument: “To recap: I fear I am counting five justices who believe that a nonexistent problem can be constitutionally cured by burdening the fundamental right to vote. Happy byproduct? Doing away with those pesky facial challenges that liberals like to use to address massive injustices. So in the guise of doing away with hypothetical future challenges to a law, the court is poised to uphold a law that solves hypothetical future problems in voting.”

Yep, seems about right to me…and so utterly wrong.

Bad Signs for Baze

[ 0 ] January 8, 2008 |

It’s been buried by NH primary news, but it’s worth noting that the Supreme Court heard Baze v. Rees yesterday. The case challenges Kentucky’s use of a three-drug cocktail to execute the condemned.

By all accounts, it does not look good for Baze, who is challenging the procedure. As Linda Greenhouse recounts this morning, even Justice Stevens appeared during oral argument to be heading down the path of least resistance; he suggested that he would avoid the constitutional 8th Amendment (cruel & unusual) question by holding that Kentucky is properly administering the drugs and therefore not causing the condemned undue pain.

Scalia, of course, would like us to return to the dark ages. From SCOTUSblog:

Justice Antonin Scalia, among the Court’s most conservative Justices, spoke out strenuously against any move to return the case for more evidence-gathering, suggesting that would only mean a continuing nationwide moratorium on executions with a resolution of the validity of the three-drug protocol put off; Scalia said “it could take years.” Scalia also was the one Justice who focused on a constitutional standard to apply to execution methods, saying that it is not a constitutional requirement that a state use “the method of execution that causes the least pain.” Those who wrote the Eighth Amendment, he said, were only concerned with punishment that amounted to actual torture, “the intentional infliction of pain….There is no painless requirement in there.”

So for the time being, it looks like the three-drug cocktail is likely to stick around, despite its defects. And we will continue to put down dogs more humanely than we execute humans.

Sentencing Round-Up

[ 5 ] December 10, 2007 |

Scott covered the important points in his post about the Supreme Court’s decision today in Gall and Kimbrough. Boiled down, the Court in these cases says that it meant what it said in Booker: the Sentencing Guidelines are just that — suggestions — and federal judges are not mandated to apply them. The decision today was in a crack sentencing case; it provides hope that more and more judges will be able to show their disdain for the crack/cocaine disparity. But as Hogan and I both noted in comments to Scott’s post, Gall and Kimbrough should not be understood as paving the way to the end of the war on (some classes of people who use some) drugs. The Crack/Cocaine disparity was legislatively created and will stick around until Congress dismantles it. Which doesn’t look like it’s going to happen anytime soon.

That said, it’s definitely a good sign that seven of the nine justices of the Supreme Court — including the Chief Justice and Justice Scalia — are not prepared to hold federal judges to Congress’s misguided guidelines.

More posts about Gall and Kimbrough from around the blogosphere can be found here, here, here and here.

Lesser Sentence For Crack Distribution Upheld

[ 8 ] December 10, 2007 |

I’m guessing Bean will have more to say about this, but the Supreme Court today held in a 7-2 decision that lower court judges are permitted not to apply federal sentencing guidelines (including, in this case, guidelines that mandate much harsher sentences for trafficking crack than powder cocaine) so long as the sentence is reasonable. In this case, Ginsburg wrote that considering the gross disparity of sentences for similar offenses was something judges could take into account. One of the dissents was (predictably) from Alito, the other, somewhat surprisingly given his record on sentencing cases, was from Thomas. If I understand Thomas’s dissent correctly, he objects to the Court’s decision in Booker — a decision that saved the federal sentencing guidelines from Sixth Amendment violations by reading them as advisory — but as long as it’s in force (and he recognizes it as valid under statutory stare decisis) the guidelines should be considered mandatory.

The majority makes the much more convincing case. If the guidelines being advisory means anything, it’s that federal judges should have some measure of discretion in applying them, and in this case there were perfectly rational reasons for a reduced sentence.

The Boumediene Oral Argument

[ 6 ] December 6, 2007 |

Unfortunately, other professional responsibilities have prevented me from reading the full transcripts yet, so I’ve only heard the highlights so far (I’ll have more when I read them in full.) Marty Lederman found both advocates brilliant (as did TAP’s Phoebe Connelly, who was in attendance) and seems optimistic about the result. Linda Greenhouse also says that the case will turn on how far Kennedy is willing to go (implying that he will join the judgment of the Court’s four more liberal members but may — in his typical fashion — try to narrow the reasoning.) I don’t differ from the conventional wisdom here; the most likely outcome seems to be a Kennedy opinion (or an opinion designed to attract Kennedy’s vote) holding that Congress doesn’t need to provide full access to ordinary federal courts to satisfy the habeas requirement but does need to supply better procedures than it did in its most recent bill. Orin Kerr, however, argues that because Kennedy was uncharacteristically silent it’s hard to make a prediction, and argues that the Court may just send the case back to the lower courts after making it clear that “that there is a Constitutional right to habeas jurisdiction for the Guantanamo detainees.” Dodging the key questions in that why wouldn’t surprise me either, although in light of the Court’s previous decision such a clarification seems unnecessary.

…As Roger points out in comments, audio of the oral argument is also available online.

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