Dismayingly but not surprisingly, the Supreme Court upheld Indiana’s Imaginary Vote Fraud and Democratic Vote Suppression Act today. Vote was 6-3, Stevens joining the majority and writing for the plurality, leaving open the possibility of an as-applied challenge. More later this afternoon.
Tag: "Supreme Court"
Antonin Scalia continues to tell people to “get over” the disgraceful decision in Bush v. Gore. As he must know, that won’t happen. Since he continues to do things like say that the equal protection rationale was “7-2,” it’s worth repeating exactly why the decision was so problematic.
The problem is not that the decision was “political” in the sense that “many constitutional provisions have multiple plausible interpretations when in comes to any interesting case, and justices are likely to choose the plausible interpretation that is consistent with their political values.” That’s something you have to accept as long as you have judicial review. Admittedly, one would like at least some measure of internal consistency, so Scalia — who previously thought that William Rehnquist construed the equal protection clause too broadly — suddenly embracing an innovative equal protection analysis that (if taken seriously) would have very broad implications merits considerable criticism. But since the unprecedented equal protection claim wasn’t actually inconsistent with the text of the Constitution, that’s not the biggest problem. If they were willing to apply that principle in a coherent manner, one could live with the result no matter how opportunistic the sudden embrace of William Douglas’s way of reading of the 14th Amendment was.
The bigger problem is that (and Scalia has been particularly vocal about this) that judges are supposed to actually apply principles to similar cases, not abandon and then abandon resolutions to favor particular litigants. Bush v. Gore, of course, did the latter, in a way that wasn’t so much “minimalist” as not constitutional law at all. And even worse than that, it failed to apply the alleged equal protection principle coherently with respect to the case itself. If the vote dilution that comes from arbitrary differences in vote count methods violates the federal Constitution, then not only to many states have to change their vote counting and recount statutes, the vote count that elected Bush also violated the Constitution. To the extent that the equal protection analysis meant anything at all, the remedy absolutely could not be “shutting down vote counts and accepting a vote count and recount that did not use anything resembling uniform standards and hence diluted the votes of some classes of individuals”–but that’s exactly what the Court did. And that’s what makes the Court’s actions political in the pejorative sense, and also entirely indefensible.
And that’s not the only problem with lawlessness. It’s also worth noting, for example, that the Florida court’s “recount scheme” lacked uniform standards in part because the Supreme Court of the United States told them not to use them. As Kim Scheppele has demonstrated in detail, creating these kinds of Catch-22s is not consistent with the rule of law. Long after Bush has left office, Bush v. Gore will continue to be a disgrace for Scalia and his four colleagues because they violated their obligations in the most fundamental way.
Given what bean correctly identifies as the complexity of today’s ruling in Baze v. Rees, I’ll have to leave discussion of the fractured holding until tomorrow. For now, let me discuss one interesting and unexpected development. For the first time since the nearly-retired Harry Blackmun, the Supreme Court now has a justice who believes the death penalty to be categorically unconstitutional under the Eighth Amendment. Justice Stevens:
Finally, given the real risk of error in this class of cases, the irrevocable nature of the consequences is of decisive importance to me. Whether or not any innocent defendants have actually been executed, abundant evidence accumulated in recent years has resulted in the exoneration of an unacceptable number of defendants found guilty of capital offenses. The risk of executing innocent defendants can be entirely eliminated by treating any penalty more severe than life imprisonment without the possibility of parole as constitutionally excessive.
In sum, just as Justice White ultimately based his conclusion in Furman on his extensive exposure to countless cases for which death is the authorized penalty, I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.”
Stevens’s concurrence provoked a rejoinder from Scalia. I hate to admit it, but while I certainly think Stevens has the better of the policy argument, as a matter of constitutional law I think Scalia’s (while I would certainly not endorse every detail) is more persuasive. In particular, I agree that the explicit mention of “life” in the due process clauses of the 5th and 14th Amendments — while not dispositive — certainly puts the burden of proof on those claiming that the 8th Amendment forbids the death penalty in all cases. And questions such as whether the death penalty has a deterrent effect and what role retribution can play in criminal punishments, there’s enough reasonable disagreement to justify leaving the policy judgment to legislators, especially since nobody could argue with a straight face that there’s anything remotely resembling a national consensus against it. I’m open to arguments about the death penalty as applied, but I continue to think that the Marshall/Brennan position on the death penalty isn’t terribly convincing.
The other interesting twist, as many of you have already inferred, is that Stevens voted to uphold Kentucky’s execution regime, deferring to precedent. (In this, he differs from Blackmun — he may think that the death penalty experiment has failed, but remains willing to tinker with the machinery of death.)
Good to know that Supreme Court believes that dogs deserve better treatment than the human condemned.
Update: SCOTUSBlog has more. The Court was totally splintered, with no one opinion garnering five votes. The dissenters were Ginsburg & Souter.
The recently retired Justice O’Connor recently spoke at Hunter College with Justice Breyer, and was asked by a student if there was a vote she regretted casting. After rejecting the student’s suggestion that she choose Bush v. Gore, O’Connor named a case in involving judicial campaigns. She didn’t mention it by name, but I assume she meant Republican Party of Minnesota v. White, which struck down a prohibition on judges announcing views about “disputed legal or political issues.” (“Good,” quipped Breyer, “I dissented in that case.”) Dorothy Samuels notes that she has also spoken out recently about campaign donations to judges and their potentially corrupting influence.
I don’t think that the First Amendment should be construed to prevent the reasonable regulation of donations in judicial elections. Despite attempts by a lot of conservatives to portray campaign finance as an easy First Amendment issue, it’s actually complex. Donating or spending money isn’t pure speech but a means to make speech more widespread. This remains a core First Amendment value, of course, but in the context of elections it also conflicts with the crucial democratic assumption that individuals with unequal resources should still be civic equals at election time. And the problem of donations is even more acute with judicial elections: legislators aren’t supposed to be impartial in crafting legislation, but one would think that judges are supposed to be impartial in enforcing it. Other liberal democracies with a commitment to free speech have managed to regulate campaign donations and spending without heading down the slippery slope to crushing political dissent.
White, which was a pure speech case, is a lot trickier; I would probably reluctantly join the court’s opinion. And the case does bring up a broader question; if judges aren’t allowed to state their views, why have elections at all? O’Connor actually identified the problem in her concurrence:
Minnesota has chosen to select its judges through contested popular elections instead of through an appointment system or a combined appointment and retention election system along the lines of the Missouri Plan. In doing so the State has voluntarily taken on the risks to judicial bias described above. As a result, the State’s claim that it needs to significantly restrict judges’ speech in order to protect judicial impartiality is particularly troubling. If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges.
I sometimes find it hard to fault the Supreme Court for requiring states to push the idea of electing judges further down its logical path.
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.
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 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.
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.
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.
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.