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Tag: "Supreme Court"

ACA Oral Arguments: Day 1 Recap

[ 18 ] March 27, 2012 |

Since I was skeptical about whether the Court was seriously considering using a jurisdictional ruling to dodge the constitutional issue ex ante, the oral arguments yesterday certainly did nothing to dissuade me.

Looking around, this seems to be the consensus. Had a lower court not bought the anti-injunction argument, I doubt the Court would have even asked for the question to be briefed.

Looking forward to tomorrow, Sarah Kliff’s primer is very useful.

The Aggressive-Aggressive Virtues

[ 86 ] March 26, 2012 |

The hot argument based on today’s argument is likely to be the idea that the Supreme Court will just duck the question of the ACA’s constitutionality using a jurisdictional dodge. It’s possible, but I actually don’t think it’s very likely. How I read history differently is that I see the courts ducking cases where a ruling would lack significant political support, not ducking “politically divisive” cases per se. To cite another example, the Court invented a (legally erroneous) reason to duck an interracial marriage case in the mid 50s, for example, because they didn’t want to uphold bans on interracial marriage but striking it down would have been enormously unpopular, and not just in the Jim Crow states. In this case, conversely, the Court would have more than sufficient political and public support if they vote to strike down the ACA; they have no reason to duck the case unless they want to on the merits anyway.

The Roberts Court and the War On Women

[ 37 ] March 22, 2012 |

I have a piece on the latest “sovereign immunity” atrocity up.

One additional note: in a footnote, Ginsburg reiterated (correctly) that Congress should be able to abrogate “sovereign immunity” in such cases for any reason it sees fit.   Sotomayor and Kagan, however, didn’t join the footnote.   It’s not the biggest deal in the world — if the votes were otherwise there to overrule this bad line of precedent they might do so anyway — but there’s no reason to acquiesce.

He Thought Plessy Was Right And Should Be Reaffirmed

[ 9 ] March 21, 2012 |

As I wrote about at some length during the dark ages of the blog, I think the evidence that William Rehnquist’s infamous memo urging Robert Jackson to uphold Plessy represented his own views was already definitive.   But in case you weren’t quite convinced, here you go.

Today In Great Dissents

[ 29 ] March 20, 2012 |

Say it, Justice Ginsburg.

Much more on this travesty imminently. The short version is that Supreme Court has joined the War on Women by combining a “federalist” doctrine that is embarrassing nonsense even by Rehnquist/Roberts Court standards with a denial of Congress’s explicit powers to enforce the Fourteenth Amendment unless it meets some unintelligibly arbitrary standards invented by the Court.

Also, given the Republican reluctance to reauthorize the Violence Against Women Act, it’s worth remembering that another case in which a bare majority of Supreme Court conservatives acted to read Section 5 of the Fourteenth Amendment out of the Constitution involved striking down a part of the Violence Against Women Act and immunizing a gang rapist from a civil suit.

Lawrence, Gideon, and Legal Storytelling

[ 4 ] March 6, 2012 |

I’m still waiting for my copy of Dale Carpenter’s book, but Dahlia Lithwick’s review is a beautifully written and important piece in its own right.    Lithwick’s piece focuses on a central irony of the case.  Kennedy’s opinion famously focused on the importance of relationships and intimacy, but Lawrence and Garner — the two men who were arrested for violating Texas’s sodomy laws, leading to the legal landmark — were not in a relationship and never had sex.   (Of the two of four policemen who claimed to see Lawrence and Garner engaged in sexual relations, one suggested that they were engaged in oral sex and one said they engaged in anal sex.   Were it not for the broader issues involved, it seems safe to say that the charge would have had trouble holding up even in a Texas court.)    Lawrence and Garner were not plaintiffs with the kind of story who get movies made about them, a necessity created by the fact that a couple in a same-sex relationship with children would have had too much to lose:

That’s the punch line: the case that affirmed the right of gay couples to have consensual sex in private spaces seems to have involved two men who were neither a couple nor having sex. In order to appeal to the conservative Justices on the high court, the story of a booze-soaked quarrel was repackaged as a love story. Nobody had to know that the gay-rights case of the century was actually about three or four men getting drunk in front of a television in a Harris County apartment decorated with bad James Dean erotica.

Although this wasn’t the case LBGT rights litigators would have chosen, it worked — because the Supreme Court wanted to act and had a story it wanted to tell.

Another example of this phenomenon, which worked from the other direction, is Gideon v. Wainwright, the 1963 case that held that the 6th Amendment’s right to counsel was applicable to the states. Clarence Earl Gideon was also living on the economic margins, but his basic story — a very possibly innocent man, denied a fair trial, who scrawled an in forma pauperis petition in longhand from his jail cell and got his rights vindicated by the Supreme Court of the United States — is different. Unlike the tale of Lawrence and Garner, this is an inherently compelling legal story. Gideon was literally portrayed by Henry Fonda in a movie based on the excellent bestselling book about his case that remains in print.

And yet, as Scot Powe’s classic history of the Warren Court makes clear Gideon v. Wainwright was in its own way a Court-created story as much as Lawrence. (For that matter, in its details, the Anthony Lewis book does as well.) As Powe says, Gideon isn’t exactly the story of a lone defendant triumphing against insurmountable odds, as the fact that his case was argued at the Supreme Court by LBJ’s personal legal fixer and future two-time Supreme Court nominee would make readily apparent:

Somewhat less well-known are the facts that twenty-two states filed amicus briefs on Gideon’s side and that Florida could gain the amicus support of only Alabama and North Carolina for its claim that an accused could be validly convicted without the aid of counsel; Mississippi and South Carolina were the only other states not offering counsel — hardly, especially in 1963, a stellar lineup. Moreover, hitherto unmined files in the Clark and Douglas Papers reveal that five of the eight justices had already joined an opinion in another case holding that a defendant was entitled to counsel on appeal even if he could not afford a lawyer. If there is a right to counsel after trial, there is surely a right to counsel at trial. That opinion, however, was not published at the time because the case was put over to the next term so that Fortas could win Gideon. (pp.179-80.)

Lewis didn’t have access to the information about the case Powe discusses at the time, but as Powe says the conference vote ironically meant that Gideon himself could have argued his case in front of the Supreme Court and won. In addition to that case, the Court could easily have used the 1962 case Carnley v. Cochran to incorporate the right to counsel. But the Court decided that case on narrow procedural grounds because Warren’s clerks had already found Gideon and the Court preferred to announce the overruling of a major precedent in a case involving someone who was possibly innocent of a minor burglary rather than in a case involving someone who was probably guilty of incest and child molestation.

I don’t mean to suggest that this means that the selection of plaintiffs and case facts isn’t important; it certainly is. But courts can often find a way to tell the story they want to tell.

By the way, the sad conclusion to the Lithwick review:

At a press conference after the decision was announced, Lawrence read a brief prepared statement and Garner said nothing. Some advocates hoped that Garner might have a career as a gay-rights spokesman. After he gave a drunken speech at a black-tie dinner in the plaintiffs’ honor, that idea was scratched. The case is called Lawrence v. Texas. John Lawrence died last November. Almost no one took note. Garner died five years earlier, at the age of thirty-nine. When Lambda Legal proved unable to raise funds for a proper memorial or burial, Harris County cremated him and sent his ashes home to his family in a plastic bag. There was no funeral.

I’m glad Carpenter has chosen to tell their story, and I’m looking forward to his book.

The End of Grutter?

[ 24 ] February 22, 2012 |

I would like to buck the conventional wisdom, but I agree with everybody that the grant of cert in Fisher v. UT Austin is almost certainly the end of affirmative action in higher education. Certainly, four of the necessary votes are not in question:

The bad news is that Kagan’s recusal probably doesn’t matter because her vote will be irrelevant. Everything points to there being five votes to overrule Grutter. Antonin Scalia and Clarence Thomas are sure votes—not only did they dissent in Grutter, they have consistently held that all affirmative action programs are unconstitutional (even though this is flagrantly inconsistent with the “originalism” they claim guides their interpretation of the Constitution). Samuel Alito and John Roberts were not on the Court when Grutter was decided in 2003, but the 2007 Parents Involved ruling, authored by Roberts and joined by Alito, is an ominous sign. Chief Justice Roberts’s Young Republican debate society koan “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race” strongly suggests that the two George W. Bush appointees will adhere to the Scalia/Thomas absolutist position.

So this leaves us with Kennedy, who as Liptak notes, “has never voted to uphold an affirmative action program.” So I think we know where this is headed.

I think this is a good time to cite Stevens in Parents Involved:

There is a cruel irony in The Chief Justice’s reliance on our decision in Brown v. Board of Education. The first sentence in the concluding paragraph of his opinion states: “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.” This sentence reminds me of Anatole France’s observation: “[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, The Chief Justice rewrites the history of one of this Court’s most important decisions.

The Chief Justice rejects the conclusion that the racial classifications at issue here should be viewed differently than others, because they do not impose burdens on one race alone and do not stigmatize or exclude…

[...]

If we look at cases decided during the interim between Brown and Adarand, we can see how a rigid adherence to tiers of scrutiny obscures Brown’s clear message. Perhaps the best example is provided by our approval of the decision of the Supreme Judicial Court of Massachusetts in 1967 upholding a state statute mandating racial integration in that State’s school system. Rejecting arguments comparable to those that the plurality accepts today, that court noted: “It would be the height of irony if the racial imbalance act, enacted as it was with the laudable purpose of achieving equal educational opportunities, should, by prescribing school pupil allocations based on race, founder on unsuspected shoals in the Fourteenth Amendment.”

Admittedly, I don’t agree with the vote-counting at the end of Stevens’s dissent (“It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.”) After all, William “Plessy was right and should be reaffirmed” Rehnquist was on the Court then, and he’s always been at the forefront of tying to stand Brown on its head. But, otherwise, Stevens is right. Alas, on a Court dominated by Republicans the silly idea that as soon as a centuries-old caste system is formally disbanded formal equality is sufficient to provide real equality of opportunity will hold sway.

Diluting Miranda

[ 26 ] February 22, 2012 |

The landmark criminal procedure decisions of the Warren Court have generally not been overruled, but this is somewhat misleading; in many cases, the precedents formally remain standing, but have been interpreted in ways that give them much less bite.

With Miranda v. Arizona, the dilution process continued yesterday. It’s rarely a good sign when you see Alito’s name on a majority opinion in a civil liberties case, and Howes v. Fields is no exception. Yesterday’s ruling concerned the admissibility of a confession made by a prisoner who was questioned by two sherrif’s deputies for more than five hours and while being held in prison. The prisoner did not have the assistance of counsel, was not given the Miranda warnings, and said more than once that he did not want to answer further questions. Seems a pretty clear violation of Miranda, right? Well, if so, you’re not Samuel Alito, whose opinion held that Fields was not actually “in custody” at the time and therefore not subject to the requirements of Miranda. While Ginsburg’s dissenting opinion agreed that the Court had not previously established that this kind of context constituted custody, as she points out the failure of the Court to establish this given the opportunity involves ignoring the standards set forth in Miranda:

Fields, serving time for disorderly conduct, was, of course, “i[n] custody,” but not “for purposes of Miranda,” the Court concludes. I would not train, as the Court does, on the question whether there can be custody within custody. Instead, I would ask, as Miranda put it, whether Fields was subjected to “incommunicado interrogation . . . in a police-dominated atmosphere,” whether he was placed, against his will, in an inherently stressful situation, and whether his “freedom of action [was] curtailed in any significant way.” Those should be the key questions, and to each I would answer “Yes.”

As the Court acknowledges, Fields did not invite or consent to the interview. He was removed from his cell in the evening, taken to a conference room in the sheriff’s quarters, and questioned by two armed deputies long into the night and early morning. Ibid. He was not told at the outset that he had the right to decline to speak with the deputies. Ibid. Shut in with the armed officers, Fields felt “trapped.” Although told he could return to his cell if he did not want to cooperate, Fields believed the deputies “would not have allowed [him] to leave the room,” And with good reason. More than once, “he told the officers . . . he did not want to speak with them anymore.” He was given water, but not his evening medications. Yet the Court concludes that Fields was in “an interrogation environment in which a reasonable person would have felt free to terminate the interview and leave.”

Critical to the Court’s judgment is “the undisputed fact that [Fields] was told that he was free to end the questioning and to return to his cell.” Never mind the facts suggesting that Fields’s submission to the overnight interview was anything but voluntary. Was Fields “held for interrogation”? Brought to, and left alone with, the gun-bearing deputies, he surely was in my judgment.

It’s classic Roberts Court “minimalism,” in other words. The Court doesn’t overrule Miranda, but it does invent some irrelevant reasons not to apply it in particular context.

Ginsburg dissented for Breyer and Sotomayor but not Kagan, who joined the Alito’s opinion in full. As this blog may have mentioned on one or two occasions, Kagan isn’t awful but certainly represents a missed opportunity. “To the right of Breyer on a Fifth Amendment case” is not what you’re looking for given an unusually large Senate majority to work with.

…Glenn beat me to the point on Kagan.

Ginsburg and the Timing of Roe

[ 7 ] February 17, 2012 |

Irin Carmon’s column on Ruth Bader Ginsburg and the potentially pioneering brief Nixon’s Solicitor General Erwin “why should a mere woman get a law school space that properly belongs to a man?” Griswold prevented her from presenting to the Court is very much worth reading.

Long-time readers will know this, but I should say that I think that Ginsburg’s frequently made argument that the Court should have waited until it had a basis to decide Roe on equal protection grounds is wrong. First of all, I don’t believe in the Roe-backlash argument. And second — and, here, I agree 100% with Gerald Rosenberg — I think this assumes the Supreme Court plays a role in educating the public that I don’t think that it does. What the Court says has much less impact on the protection of rights than the substantive conclusions it reaches.

So, yes, on one level it’s unfortunate that Roe almost exclusively focuses on the rights of doctors, and on the level of discourse the much greater attention paid to the rights of women in the plurality, Blackmun, and Stevens opinions in Casey is a substantial improvement. But the thing is, whatever it said Roe did far more to actually protect the rights of women than Casey did. Under Roe, for example, Virginia’s mandatory rape provision would be plainly unconstitutional, while under Casey it is very likely to be upheld by both lower federal courts and the Supreme Court should it get that far. In theory, given the arbitrary nature and disparate impact of most abortion regulations the “undue burden” standard could provide a fairly robust protection of reproductive freedom. But as the Court actually defined it — especially when it upheld mandatory waiting periods — in practice it allows states and the federal government to do almost anything as long as they don’t ban pre-viability abortions outright. The fact that Casey pays more rhetorical attention to women’s rights is really a pretty hollow consolation.   I understand what Ginsburg means when she says in Carhart II that the Court wasn’t taking Casey seriously, and that’s the right argument to make in context, but another way of looking at it is that Kennedy was taking Casey all too seriously.

What Would AMK Do?

[ 4 ] February 13, 2012 |

With respect to how Kennedy is likely to rule on the Prop 8 case, a few additional points. First, in response to Murc here, I should make it clear what I’m not arguing, namely that Reinhardt’s opinion will somehow be able cleverly manipulate Kennedy into supporting a position he’s not otherwise inclined to go along with. As I said when similar claims were made during the Kagan nomination hearings, I regard arguments that Kennedy can be manipulated to support liberal positions as roughly on a par with arguments that Evan Bayh and Ben Nelson can be made to vote like Paul Wellstone based on arguments that rely on terms such as “bully pulpit” or “mandate.” Rather, my argument is simply that Reinhardt’s holding is one that, based on his past writings, Kennedy is likely to agree with, and hence less likely to vote to overturn and create a terrible precedent. “Manipulation” per se has nothing to do with it. Mazzone believes that this is about manipulation because he thinks that Reinhardt’s analogies to Romer are invalid, but I think he’s wrong about that. At any rate, Kennedy will make up his own mind, which is another reason why it made sense for Reinhardt not to go well beyond Romer and declare a broad right to same-sex marriage; if this is what Kennedy believes he’s free to do so anyway.

As for how much we can read into Lawrence and Romer, here’s another way of putting the argument I made here. Kennedy has demonstrated, in several cases, a willingness to vote to strike down the death penalty as applied in certain narrow ways: in cases of people under 18, people with severe mental disabilities, or in cases of sexual assault. It would be very foolish, however, for a litigator to assume that because he’s willing to strike down applications of the death penalty that are rare even in the minority of states that use the death penalty with any frequency he would therefore be willing to endorse the Marshall/Brennan theory that the death penalty is obviously unconstitutional. Kennedy is more likely to endorse a broad national right to same-sex marriage than is he is to rule that the Eighth Amendment makes any application of the death penalty unconstitutional. But, still, to be confident that he will do so based on Romer and Lawrence is deeply problematic. These cases, whose direct national impact was very modest, are a lot more like Roper v. Simmons than they are like Roe v. Wade (which would be the clearest equivalent to declaring a national right to same-sex marriage.)

There’s a final argument, made by Mazzone and also by the great Pam Karlan, that Kennedy is very concerned about his legacy and won’t want to be seen as being on the wrong side of history. Well, maybe. It’s certainly possible that Kennedy would like to see himself as being on the forefront of an important extension of civil rights that will broadly accepted very soon. It’s also possible that Kennedy has no interest in being a pariah among has valued conservative colleagues in support of social change he believes is inevitable anyway. And it’s possible that he’s aware of conservative complaints that he’s susceptible to the “Greenhouse Effect” and wants to show his backbone in a high-profile case. There are a million different essentially unfounded narratives one can create when one plays the armchair psychologist. What I do know is that his past decisions indicate that Kennedy is much more likely to uphold a narrow decision striking down Prop 8 than a broad one, and both 9CA was sensible to act accordingly. Particularly since that if Kennedy is in fact ready to go beyond a narrow ruling nothing in Reinhardt’s opinion can or would stop him.

The Fourth Amendment and the Surveillance State

[ 30 ] January 26, 2012 |

I have some follow-up thoughts to the GPS surveillance decision handed down by the Supreme Court earlier this week. The first major takeaway from the case is that Sonia Sotomayor was one of the best decisions Obama has made so far:

The split on the Court Monday, in essence, focused on which of these strands of Fourth Amendment jurisprudence to emphasize. The most interesting opinion in the case, however, is Justice Sonia Sotomayor’s concurrence. Although I’m a little puzzled as to why she joined Justice Antonin Scalia’s opinion—which seems to give less attention to her fundamental concerns—her own analysis is brilliant, forcefully arguing that the Court needs to rethink its Fourth Amendment jurisprudence in light of the Internet/wireless communication age. The “expectation of privacy” standard will not provide adequate protection if the increased potential power of the state is not taken into account. Sotomayor is correct, first of all, to argue, that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.” And she is extremely persuasive in her argument about why the judiciary needs to check the use of GPS technology:

“Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may ‘alter the relationship between citizen and government in a way that is inimical to democratic society.’ [...] I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. … I would also consider the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent ‘a too permeating police surveillance.’”

Every point here is crucial, and her argument about the danger of information in the hands of third parties is particularly important.

Alas, Sotomayor spoke only for herself, so I have another piece about how to the extent that this is a victory, it’s a minor one. Normally, in a civil liberties case you’d take any vaguely acceptable opinion from Scalia and (especially) Alito and run, and neither of their conflicting opinions forecloses the development of a Fourth Amendment doctrine properly adapted to new technological powers. But the Court stopped short of even holding that this search violates the Constitution, and one can easily see either standard evolving in a way that gives the state extremely broad latitude. Thinking along the lines expressed in Sotomayor’s concurrence is desperately necessary.

GPS Tracking Constitutes a Search

[ 21 ] January 23, 2012 |

The Supreme Court has unanimously held that GPS tracking of an individual by the state constitutes a “search” in terms of the Fourth Amendment.    However, the Court declined to answer the crucial question of with the search was a “reasonable” one under the Fourth Amendment.  There was also a dispute between the Scalia majority opinion and Alito’s concurrence about the basis of holding that GPS tracking was a search.   If I understand correctly, oddly enough the Alito concurrence (joined by Breyer, Ginsburg, and Kagan) outlines a tougher standard, arguing that in some cases visual observation is sufficient to constitute a “search” given modern technology, while Scalia holds to the traditional position that mere visual observation cannot constitute a “search.”   I’m a little puzzled why Sotomayor — who advanced a similar position in a solo concurrence — didn’t just join Alito’s opinion instead, thus making it the opinion of the Court.   At any rate, the significance of the ruling is at this point unclear; whether it will have teeth will depend on whether or not the courts will just find that such searches are generally “reasonable.”   More on this tomorrow.

…as Glenn suggests in comments, it seems to me that the Sotomayor position is preferable to either; both Scalia and Alito want to carve out different exceptions to what constitutes a “search.”   But I’m still not convinced that given the two viable majority coalitions that the Alito position isn’t preferable.

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