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Tag: "Supreme Court"

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.

The Second Amendment on Trial

[ 36 ] November 20, 2007 |

The Supreme Court has decided to hear an appeal to the D.C. Circuit decision striking down D.C.’s handguns ban. I’ll have more discussion about this later, but to stimulate discussion in the interim I’ll say that 1)the most plausible interpretation of the 2nd Amendment, I think, confers an individual right to bear arms, although this is certainly not the only reasonable interpretation; 2)given this, D.C.’s draconian ban is (for better or worse) clearly unconstitutional, but 3)more reasonable gun control measures may be constitutional even if the right to bear arms is considered an individual right.

Borking and The Court

[ 8 ] November 20, 2007 |

I actually agree with two points that Ross Douthat makes here. First, I think that there’s a tendency to assume that Roe‘s popular support made its upholding inevitable, but this really isn’t the case. If Reagan had appointed Bork and Scalia in reverse order, for example, Roe would have been overturned. Although most sophisticated observers understand that the Supreme Court is better understood as an adjunct to national governing coalitions than a stalwart protector of unpopular minorities, it’s easy to push this too far; the Court wouldn’t have been prevented from overturning Roe any more than the Warren Court was prevented from issuing Everson and Miranda. (Indeed, as all three examples suggest it’s entirely possible for positions to be broadly consistent with current elite governing coalitions and be unpopular among the public at large.) Second, he is of course right that Alito and Roberts are doctrinaire conservatives who will never find an abortion regulation unconstitutional, although their fake “minimalism” may mean that even with a fifth vote we’ll see the complete gutting rather than the explicit overturning of Roe. (Of course, at this late date nobody but Ann Althouse could think otherwise.)

On the other hand, we have the tired claim about of a “shameful-but-effective Democratic smear campaign against Robert Bork.” Obviously, the Senate being a political body, criticisms of Bork were not expressed in the tones of an academic seminar. But the core of the case against Bork was that he 1)entirely rejected any implicit right of privacy, meaning that the state not only had the authority to pass arbitrarily enforced laws requiring a woman to carry her pregnancy to term but also to pass arbitrarily enforced laws preventing people from using contraception, 2)he had a consistently awful record on civil rights including public claims that the Civil Rights Act was unconstitutional and hostility to claims of gender equality, and 3)took an exceptionally narrow view of free speech rights. This campaign was effective because it was accurate — there were at the time enough moderate Republicans to oppose his views on privacy and no Southern Democratic Senator (given that they required near unanimous black support to be competitive) could have supported someone with Bork’s record on civil rights. Some of these issues have become less important over time — conservatives have largely adopted libertarian positions on issue #3, and many reactionary nominees are now young enough not to have contemporaneously opposed the Civil Rights Act. On issue #1, however, justices like Roberts and Alito are easier to confirm than Bork not because their positions are more popular but because the lesson they learned from Bork is to simply refuse to state their position explicitly. Hence the high comedy of Republicans who had admired Alito for being a doctrinaire conservative suddenly reacting with outrage against those pointing out the obvious fact that he held very conservative positions on legal issues as soon as he was nominated. This silliness, of course, could stop as soon as he was safely on the Court. This kabuki does, however, make “Borking” more difficult (or, as the case with Thomas, be reflected through discussions of marginally relevant personal issues.) This is not, however, a good thing.

Death Penalty Moratorium

[ 28 ] October 31, 2007 |

It’s all but official: the Supreme Court issued a stay of execution for a prisoner in Mississippi, “and thus gave a nearly indisputable indication that a majority intends to block all executions until the court decides a lethal injection case from Kentucky next spring.” Scalia and the man who put the doctrinaire conservative in “moderation” Sam Alito — but not Thomas or Roberts — dissented.

It seems almost certain, however, that this stay will be temporary and executions will resume after the case comes down next year. Although the possibility that we’re torturing people to death strikes me as more substantial Eighth Amendment grounds than the recent limitations on the death penalty found by the Supreme Court, preventing the execution of adolescents and the mentally handicapped represents a relatively small number of cases, lethal injection involves virtually every execution in the country. I can’t imagine Kennedy voting to require stringent standards of evidence from the states in this instance.

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