Tuesday, February 03, 2015

Help wanted for a seminar on "Prohibition"

A few years ago, I posted some quick thoughts about "teaching Prohibition in Constitutional Law" and about Daniel Okrent's (very enjoyable) book, "Last Call":

Last Spring, as I was teaching my first-year Constitutional Law course, I was listening to Daniel Okrent's very engaging book, "Last Call:  The Rise and Fall of Prohibition."  In many ways -- some of which I'd appreciated before, and others I hadn't -- the book's subject connected interestingly with the big questions and themes of the first-year course (which, at Notre Dame, focuses on "structure").  I had so many occasions to refer to the book in class, I started to worry that my students were getting the idea that I am obsessed with alcohol and its regulation.

A few years ago, Eugene Volokh and others helped me to appreciate the ways in which the Second Amendment can serve as a "teaching tool" in Constitutional Law.  It strikes me that the experience with Prohibition - how it came about, what it tells us about constitutional amendments and grassroots political movements, how it connects with questions about the census, redistricting, federalism, and the Fourth Amendment, etc. - could serve, similarly, as a teaching tool or vehicle.  Have any Prawfsblawg readers or bloggers taught Prohibition, or used it as a lens through which to look at the Constitution and constitutional law?  Any suggestions about how it could be done?

Well, because I am slow and prone to procrastination, I am just now (finally) getting around to thinking about putting together a seminar course on the topic.  I continue to think there's a lot of really interesting ways that our experiment with Prohibition could serve as a vehicle for examining, and pulling together, a bunch of interesting questions, including questions about the subjects mentioned in my earlier post.  

So, here's a bleg:  Does anyone know of any similar courses that are being offered or that have been offered elsewhere?  And, does anyone have any ideas for topics that might be covered in such a seminar?  Much appreciated!  (We will, of course, be home-brewing as part of our coursework.)

Posted by Rick Garnett on February 3, 2015 at 09:32 AM in Constitutional thoughts, Rick Garnett | Permalink | Comments (4)

Monday, February 02, 2015

Measles!

First, I am delighted to be back on Prawfblawgs and want to thank Howard and the team very much for coordinating this.  It’s wonderful to see how what Dan started continues to grow and thrive.

Second, in thinking about how to make best use of my time I’ve decided to focus on public health law--to shed some light on the ever-present conflict between an individual's right to manage her own health and the government (state and federal) ability to interfere.

 As everyone knows, we in the United States are in the middle of an outbreak of measles that started when two un-vaccinated children who had been exposed to measles visited Disneyland.   My focus will be on legal issues, but lets start with an overview.  As of today, there are 102 cases reported in 14 states-anyone interested in tracking the outbreak can so here.  Measles is that “worst case scenario” virus that Ebola wasn’t—it is highly contagious, spreads through the air, can live a long time on surfaces, and is infectious well before people feel sick enough to stay at home.  This is a very helpful graphic.  In 2000 measles was “declared eliminated in the United States” because, for an entire calendar year, there had not been a case of one person catching measles from another in the United States.   But measles is nowhere near eliminated globally and we haven't had a year like 1999 in a long time.   Globally,  400 (mostly) children die of measles every day, 16 die every hour.   Unfortunately, “globally” does not, in measles’s case, mean remote areas of the planet, Europe, India the Philippines and Vietnam—are all seeing increases in measles cases.  

Also, over the past 5 years, an increasing number of people (mostly college students) have caught  measles and mumps (and both) without the infectot or the infectee leaving their U.S.  college campus.

 The good news about measles is that there is a highly effective, widely available vaccine that fully protects 97 out of every 100 people vaccinated.  It’s a “threefer” in that the vaccine provides immunity from not just Measles but two other very serious viruses, Rubella (German measles) and Mumps.

 Like most vaccines, however, it can’t be given to infants younger than six months old and in the absence of an immediate threat, usually isn’t given until a child is twelve months old.  There are also counter-indications (more about them later) about who shouldn’t get the vaccine.  Finally, people on chemotherapy or who have had bone marrow transplants lose whatever immunity they had before.   Without doing the math that means at any one time, even if every person in the United States eligible to vaccinated had one, many people would still be susceptible to infection.  And of course the point of this post on a law site, is that far from everyone eligible to be vaccinated has taken advantage of the opportunity.

 

The current controversy is a great teachable moment for any law school class considering the balance between the rights of an individual and that of the state.    Over the next month, I will be diving deeper into this area of the law to examine the parameters of state authority under the Tenth Amendment and then the different aspects of federal power that create the parameters of governmental authority to prevent, and control outbreaks through public health measures like mandatory vaccination, treatment, quarantine and isolation.  Spoiler alert—neither sincerely held religious belief nor autonomy to raise one’s children have prevailed against a state’s interest in requiring vaccination for attending public school.

To be continued.

Posted by Jennifer Bard on February 2, 2015 at 03:10 PM in Constitutional thoughts, Current Affairs, First Amendment, International Law, Law and Politics, Religion, Science, Teaching Law | Permalink | Comments (0)

Friday, January 30, 2015

LBJ and the Supreme Court

This is a couple days old, but I will second Gerard Magliocca's recommendation of KC Johnson's post on LBJ's conversations about the nomination of Abe Fortas as Chief Justice; the post includes audio links to excerpts of the Johnson White House tapes along with transcripts and some commentary. The conversations touch both on Fortas's elevation and on who should replace him as Associate Justice (Homer Thornberry was nominated, but the nomination was withdrawn when Fortas was rejected as Chief). KC argues that Fortas represents the tipping point on judicial nominations, the point at which it became contentious and partisan and at which a nominee might realistically be filibustered or rejected. (I will leave that debate to others).

Beyond the general enjoyment of listening to the conversations and, in Gerard's words getting to "hear LBJ . . . well . . . being LBJ," I found a couple of individual points of interest.

First, Johnson mentions the possibility of bringing Arthur Goldberg back to the Court (Goldberg had resigned in 1965, at Johnson's urging, to become UN Ambassador and to allow Johnson to put Fortas on the Court), but rejected that idea because "I oughtn’t to have two Jews." (I have written before about how jarring it is to hear "Jews" as opposed to "Jewish people." It sounds worse with a Texas drawl).

Second, Johnson specifically talks about the states represented by the different possible nominees and how "seats" for each state is a consideration. This brings to mind Nancy Leong's JOTWELL essay reviewing Sharon Rush's article on geographic diversity on the federal bench, particularly on a non-regional court such as SCOTUS.

Third, it raises some cute historical counter-factuals. What if Johnson had not pushed Goldberg to resign in 1965? Johnson basically conned Goldberg into believing that 1) Goldberg could make a difference with Vietnam from the UN and 2) It might put him in position to run for President. Neither of those things is remotely true. 

So what happens if Johnson leaves Goldberg alone? Johnson got to make (or at least try to make) two more nominations after 1965--1967, when he appointed Thurgood Marshall to replace Tom Clark, and 1968, when Warren indicated his intent to retire. Johnson wants Fortas and Marshall on the Court and also wants to make Fortas Chief when Warren steps down. So consider:

1) Johnson still appoints Marshall in 1967 because "it's time," then nominates Fortas as Chief from outside the Court in 1968 (back then a Chief without judicial experience was not uncommon). If Fortas has not been on the Court for three years when nominated, does that change the Senate's reaction to him? Certainly some of the problems that killed his nomination go away--he no longer is tagged with what many viewed as the "excesses" of the late Warren Court on criminal procedure and obscenity; there no longer is anything untoward in his having recently advised Johnson on matters; it is at least less untoward that he took money for giving various speeches. On the other hand, as KC describes in his post, by June 1968, everyone expected that Nixon would win the White House, so Republicans (and others) in the Senate wanted to leave the nomination for the new president rather than the lame duck. This concern does not go away.* So which way do things go?

* In the tapes, Johnson several times mentions the age and failing health of Black, Douglas, and Harlan, by way of showing Republicans that Nixon would get to make several appointments fairly quickly even if Johnson got to appoint the Chief in 1968. And, indeed, Nixon got to replace both Black and Harlan by the end of his first term. And but for Watergate, he would have appointed Douglas's replacement in 1975, towards the end of his second term.

2) Johnson appoints Fortas in 1967 to get his friend on the Court, then tries the same move in 1968 of trying to elevate Fortas, this time nominating Marshall as Associate. Does Fortas fare any better with two fewer terms (and decisions) on the Court? Does Marshall draw too much opposition to make the two-fer work (one of Thornberry's virtues was that it was unlikely anyone in the Senate would oppose him)? Does Johnson not nominate Marshall at all because of that opposition? In which case, when does the Court get its first African-American Justice?

Posted by Howard Wasserman on January 30, 2015 at 03:10 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Tuesday, January 27, 2015

Extending Unequal Second Amendment Rights

Stories like this one - a 62 year old African-American man is tackled to the ground in a Tampa Wal-Mart after a white man saw him bringing a (legal) firearm into the store - have me wondering how to think about the idea of extending Second Amendment rights in a world where we can pretty well predict, ex ante, that they will not be equally available to all citizens.  We can reasonably expect this sort of citizen self-help given that a big part of the case for arming all citizens is that they'll use their guns to intervene before bad things happen.  But given past experience, we can also expect that race will also play a part in whether police officers decide to stop citizens based only on their visible possesion of a firearm. 

We already know that there is a vast privacy gap between African-Americans and whites in the sense that Blacks are far more likely to be subject to a stop-and-frisk than whites.  (And it's hard to make the case that this gap is based on higher frequency of suspicious conduct when, for instance, we see that both New York and Philly police were finding contraband in well fewer than 10% of their street stops.)  Then there's Driving While Black.  I think it's fair to say that African-Americans and whites don't get equal benefit from the Fourth Amendment.

And that's a sticky problem.  Under current law, there isn't much you can do except to change police conduct from within.  Courts don't have a lot of sway.  Evidence suppression doesn't work for people who aren't arrested and nobody can count on getting compensation for a fruitless search.  That's why people like Michelle Alexander are looking to public debate and activism as a possible solution.

With the expansion of the Second Amendment, we have a chance to think more about the problem early on.  Although many states have long provided easy access to carry permits, the new, more muscular Second Amendment will likely lead to an expansion of gun carry rights.  But it seems likely that these new rights will not be extended equally.  First, though the permits themselves will be granted using formally neutral rules, provisions such as prohibiting permits for convicted felons will  embed historical racial disparities in arrest, prosecution, and conviction.   Theres more, however.  In my mind,  the right to carry a gun includes more than the right not be convicted for doing so; it also ought to include  the right to carry a gun and not get stopped and searched for doing so.  In that respect, I fear we won't deliver equal rights.  

And those disparities only reflect the burdens imposed by the state.  It doesn't even touch about the fact that private citizens may be unwilling to tolerate the equal extension of gun possession rights.  As long as people consider African-American + gun as a crime in progress, which was the Wal-Mart case - a gun carry permit will never confer upon African-Americans the same freedom to carry.

So what to do?  One possibility is to say: it's inappropriate to extend rights to one population if every population can't receive an equal benefit.  The contrary view is to see the Second Amendment just like the Fourth Amendment: a right which society will have to struggle to enforce equally but which, given its constitutional basis, ought to be extended as far as possible immediately.  (And of course most Second Amendment advocates will argue that there is no extension going on here - only a much-delayed enforcement of an existing right.)  But is there a third way?  Could we view it as a property right which is impaired when a person is subject to a search?  Might there be a novel Fifth Amendment claim here?  Could we impose a tax on guns that is used to fund a statutory compensation scheme?  Is there a way, other than the exclusionary rule, to disincentive police over-reach?  (Something like Richard  Myers' Fourth Amendment Small Claims Court?)

This is all half-baked, but it's a problem that troubles me.  I'd love thoughts.

Posted by Dan Filler on January 27, 2015 at 11:53 AM in Constitutional thoughts, Criminal Law, Current Affairs, Property | Permalink | Comments (3)

Monday, January 26, 2015

Nursing Homes as Guardians of Their Debtor Patients

If you saw today's New York Times article on New York nursing homes seeking guardianship over residents in order to collect outstanding debt, under Article 81 of the Mental Hygiene Law, you may also have questions.

Section 81.19 of the Mental Hygiene Law specifies (emphasis added):

(e) Unless the court finds that no other person or corporation is available or willing to act
as guardian, or to provide needed services for the incapacitated person, the following persons or
corporations may not serve as guardian:
1. one whose only interest in the person alleged to be incapacitated is that of a
creditor;
2. one, other than a relative, who is a provider, or the employee of a provider, of
health care, day care, educational, or residential services to the incapacitated person, whether
direct or indirect.

If a corporate entity may petition or threaten to  obtain  guardianship over a current resident in order to resolve an outstanding disputed debt owed to the corporate entity and withdraw the petition as soon as the debt is paid in full, what can guardianship law mean in New York?

 

 

Posted by Ann Marie Marciarille on January 26, 2015 at 10:29 PM in Constitutional thoughts | Permalink | Comments (1)

Sunday, January 25, 2015

The process of marriage equality, once again

This time in Alabama (H/T: Josh Blackman), with the pushback coming from the state's probate judges, who are empowered under state law to issue marriage licenses. The plaintiffs asked the district court for a "clarification" of her ruling and its scope, although it is unlikely that her clarification will announce that these non-party probate judges are subject to the injunction, since, just as in Florida, they cannot be. The district court has issued a 14-day stay, so the race to figure this all out by Monday has become moot--the district judge gave the state a chance to ask the Eleventh Circuit for a stay.

Comparing this to George Wallace standing in the doorway at the University of Alabama is incredibly overstated and flat wrong. And at some level, this is on the plaintiff's lawyers--they  framed the case, only sued the Attorney General in a state in which the AG does not have the power to issue licenses or to control or advise those who do, and did not include any "responsible" executive officers in the action. The AG is ordinarily the proper defendant in an Ex Parte Young action (notably where the challenged law is a criminal provision); but not here and not for the issuance of marriage licenses. And the failure to recognize that is creating these procedural complications, at least until SCOTUS or the Eleventh Circuit weighs in.

With all that, calling everyone a bigot in a legal document is not particularly helpful.

Posted by Howard Wasserman on January 25, 2015 at 08:55 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Thursday, January 22, 2015

Sutter Health vs. Blue Shield: War of the Gargantuas

When I think about calls for increased consumer activation in  health insurance selection, I think about how much I like the ideas of increased health insurance literacy, price transparency, and the promotion of competition in health care markets. 

But when I see consumers whipsawed as with the current War of the Gargantuas taking place in Northern California, I wonder if consumer activation alone will save us.

In order to have been a savvy purchaser of health insurance  through California's Exchange (or, even, outside the exchange through this fall's most recent open enrollment period for commercial insurance), you would also have to have known something about the the health insurance and health care services contracting world. Can we reasonably expect consumers to master this, to ferret out what they really need to know?

Most Northern California employers have a fall open enrollment period. Covered California's open enrollment for 2015 runs from November 15, 2014 to February 15, 2015.

Here's what your employer (or exchange) surely didn't tell health insurance shoppers  in Northern California this past fall:

1. Blue Shield of California is a huge insurance company, with about three million covered lives in Califonria. 

2. Sutter Health is a huge health care provider with, for example, over 4300 licensed acute care beds in California. 

3. They bargain fiercely right through and past the open enrollment deadline over the next year's contract rates. 

4. Even a behemoth such as Blue Shield of California has, historically, been unable to bring Sutter to heel. Sutter's tremendous market power in Sacramento and the Bay Area is one of the drivers of high health care costs in those areas.  

4. Decisions that are made after the close of your open enrollment period -- such as their contractual terms or, as announced this year, their decision  to maybe not  contract at all, may be  announced once  open enrollment is closed or very near to its closure.

5. The decision by a major provider to exit an established health plan after the close of the open enrollment period is apparently not deemed a qualifying life event allowing for special enrollment under Covered California.  California's largest employers have been conspicuously silent on whether such an announcment is a qualifying event for out of open enrollment insurance plan change.

So the chat boards are lighting up.  Can it be that a change in a health plan's coverage options in a highly concentrated market  such as Sacramento or the East Bay is not a a trigger for special enrollment rights ?   You mean you didn't know all this already?

Watch out where Gargantua steps.

Posted by Ann Marie Marciarille on January 22, 2015 at 06:39 PM in Blogging, Constitutional thoughts, Corporate, Culture | Permalink | Comments (0)

Tuesday, January 20, 2015

Some thoughts on Holt v. Hobbs

Like Paul, I say "congrats" to Doug Laycock for the win in Hobbs.  And, while waiting for Paul's as-per-usual detailed and thoughtful take on the case, I gathered a few quick thoughts of my own:  

First, it seems to me that the opinion by Justice Alito is exceptionally well crafted.  It should win a Green Bag award or something.  It touches the necessary bases and stops.  The language is clear and functional.  (It reveals no idiosyncratic aversion to adverbs and includes no cringe-inducing attempts at grandeur.)  One knows, at every point in the analysis, where one is.

Second, Justice Alito confirmed (as he had in Hobby Lobby) that RLUIPA (and RFRA) should not be read narrowly so that it reaches no farther than did the more narrow of the Court's Free Exercise Clause decisions.  Here, he rejected the notion (which some earlier cases might have endorsed) that "the availability of alternative means of practicing religion is a relevant consideration" for purposes of deciding whether RLUIPA's protections are triggered.

Third, Justice Alito reminded readers that "RLUIPA . . . applies to an exercise of religion regardless of whether it is 'compelled'" by the claimant's religious beliefs or traditions.  (Put another way, RFRA and RLUIPA do more, as Justice Alito reads them, than protect religious claimants from being compelled to do what they believe their religion absolutely forbids.)  Fourth, and related, the lead opinion insists that "the protection of RLUIPA, no less than the guarantee of the Free Exercise Clause, is 'not limited to beliefs which are shared by all of the members of a religious sect.'"  So, it would not be relevant to the "substantial burden" inquiry under RLUIPA if not all Muslims believe men must grow beards.

These last three points, together, are very helpful, I think, in helping me think about the idea of "substantial burdens" in the accommodation-of-religion context.  What it is that we are asking about, I think, when we ask about "substantiality" is not the power or weight of the belief, or its centrality, or its orthodoxy, or its plausibility.  We are asking, instead, about the nature, weight, size, etc., of the government's imposition on the sincerely asserted religious belief or practice-obligation.  There is no question, for example, that a Roman Catholic's obligation to worthily receive the Eucharist at least once a year is a very serious one, but a neutral and generally applicable law that, in application, (somehow) increased the cost to Catholics of doing so by $.01  would not impose a "substantial" burden on religious exercise.  Here, in Holt, the question is whether the penalty imposed or threatened by the government is substantial.  And, it is.

Next, the Court was appropriately underwhelmed by the invocation - in broad and general terms -- of a "compelling interest" in prison security and safety. Rather, "RLUIPA, like RFRA, contemplates a  'more focused' inquiry and 'requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law 'to the person'––the particular claimant whose sincere exercise of religion is being substantially burdened."  And, relatedly, the Court meaningfully -- while giving appropriate consideration to the prison context -- engaged the question whether applying the prison-grooming rule to the claimant, without exception, was the least-restrictive means of accomplishing the government's important goals.

In a separate opinion, Justices Ginsburg and Sotomayor clarified (and perhaps qualified) their agreement with the lead opinion.  Justice Ginsburg wrote:

Unlike the exemption this Court approved in Burwell v.
Hobby Lobby Stores, Inc., 573 U. S. ___ (2014), accommodating
petitioner’s religious belief in this case would not
detrimentally affect others who do not share petitioner’s
belief. See id., at ___, ___–___, and n. 8, ___ (slip op., at 2,
7–8, and n. 8, 27) (GINSBURG, J., dissenting). On that
understanding, I join the Court’s opinion.

While I understand why Justice Alito (and others who joined his opinion) would not think it necessary to respond to this statement, I also wish one of the Justices had.  The claim that it violates the Establishment Clause to accommodate religion in ways that impose costs or burdens on third parties is one that, of course, is advanced by a number of very smart people, but I do not think it is correct -- at least, not as a broad, general matter.  As I see it (see more here), the question whether a proposed accommodation is too costly is one that RFRA and RLUIPA call to be answered through the statutorily prescribed balancing inquiry, and not through an additional, accommodation-skeptical Establishment Clause inquiry.

Finally:  today's opinion offers a very, very welcome counter to the unfair and inaccurate assertion one hears in some quarters that concerns about "religious liberty" are merely "dog whistles" or "fig leaves" for bigotry and prejudice, and so can be dismissed as such.  Some invocations of "religious liberty," and some demands for accommodation, have been, are, and will be insincere, or morally offensive, or simply ungrantable.  Many others will not.  We should take the time to distinguish -- carefully, thoughtfully, reasonably sympathetically -- between the two.

Posted by Rick Garnett on January 20, 2015 at 01:14 PM in Constitutional thoughts, Religion, Rick Garnett | Permalink | Comments (0)

Sunday, January 18, 2015

Justice Rehnquist, Religious Freedom, and the Constitution

I've posted on SSRN a paper of mine called "Chief Justice Rehnquist, Religious Freedom, and the Constitution."  I wrote it a few years ago, but it's now going to be published in a forthcoming West Academic Press volume called The Constitutional Legacy of William H. Rehnquist.  And, I'll be presenting a version of it in a few weeks at a conference ("The Rehnquist Court:  Ten Years Later") at the University of Arizona dedicated to the work and memory of the late Chief.  Here's the abstract:

It might not have been foreseen that William Rehnquist would have a marked influence on the Supreme Court’s interpretation, construction, and application of the First Amendment’s Religion Clauses. And yet, he certainly did. Kent Greenawalt wrote that Rehnquist – or, more precisely, the “Rehnquist Court” – “turned the constitutional law of religion upside down.” “[W]e have moved,” he reported, “from expansive readings of both of the religion clauses to narrow readings of the Free Exercise Clause and of very important aspects of the Establishment Clause.” It is suggested in this paper that in facilitating and guiding the “move[s]” identified by Greenawalt, Rehnquist for the most part “turned the constitutional law of religion” right-side up, rather than “upside down.” He left the Court’s Religion Clauses doctrine better than it was before, that is, better rooted in the Constitution’s text, history, structure, and values than it was when he joined the Court. In any event, that the “move[s]” happened, and that they happened in no small part because of him, seems beyond dispute.

Rehnquist was able, for the most part, to exercise both judicial humility in the face of politically accountable actors’ attempts to deal with debatable questions of policy and morality – including most of the questions that arise in free-exercise and non-establishment cases – and careful review of measures and actions that might compromise the structural integrity of our Constitution. This paper’s appreciative review of his contributions to the Court’s Religion Clauses doctrine will, it is hoped, serve as a reminder that cases involving tension or collision between political and religious authority implicate the “first principles” of our constitutional experiment no less than those involving federal interference with the states’ appropriate functions or regulatory overreach by Congress.

Posted by Rick Garnett on January 18, 2015 at 05:12 PM in Constitutional thoughts, Rick Garnett | Permalink | Comments (0)

Wednesday, January 14, 2015

The influence of the Justices' religious beliefs

There is posted at the Moment website a symposium on the topic "Do the Religious Beliefs of Supreme Court Justices Influence Their Decisions?"   The participants are prominent journalists and writers about the Supreme Court, including (not naming all, but just the first three listed!) Tony Mauro, Lyle Denniston, and Robert Barnes.  

I've addressed this issue several times over the years at this and other blogs -- as have many others! -- often in the course of replying to the suggestion or accusation that the Catholic justices are imposing Catholic teachings, rather than interpreting and applying the Constitution, in abortion cases.  (In the symposium, Lyle Denniston writes that "[i]n his rulings on partial birth abortion, Justice Kennedy has especially been acting out his personal Catholic faith", but this in-my-view unfounded claim seems to reflect Lyle's view that Kennedy's stances in the abortion context are somehow inconsistent with his emphasis in other contexts on "liberty interests.")

Some of the participants observe, and I agree, that it is, if nothing else, interesting that the Court consists at present of six Roman Catholics, three Jews, and no Protestants.  (Here's WSJ thing I did on this subject a few years ago.)  I also think that what Emily Bazelon (and several others in the group) said is basically right (at least with respect to some -- I would say a relatively small number of -- cases whether the relevant legal materials are underspecific): 

[R]eligious beliefs are part of the sensibilities of some judges, and can inform how they approach cases, even if they don’t say so. It doesn’t make sense to think of the Court as Olympian and objective. The justices are just people, informed by personal background and history. Religion is a component of that.

That said, a few things that some of the participants said struck me as not quite right, or at least as incomplete.  (I'm not counting here the symposium editor's report that "[j]ust a decade ago, the general consensus was that justices were like umpires, objectively presiding over the nation’s legal system.")  For example, Lyle Denniston -- a widely and rightly respected Court observer -- states that "[i]n the past, Supreme Court justices were highly reluctant to allow their own values to come into play when ruling on religious matters."  I am skeptical.  For example, it seems clear to me that in the school-aid cases of the 1960s, 1970s, and 1980s -- cases that some of the participants characterize as "separationist" -- the "values", including the "religious" values, of the justices opposing the aid in question did plenty of work in shaping their views and driving their conclusions about the limits imposed by the First Amendment on allowing Catholic schools and students to participate in education-funding programs.  It does not seem right to say that we moved away from the strict no-aid view simply because new justices, unlike their predecessors, were willing to allow their "religious" beliefs (or, more specifically, their Catholic beliefs) to color their decisions about aid.  It seems more likely that this move owed a lot to a growing appreciation on the Court for the fact that the strict no-aid view owed more to Justice Black's and others' "own values" than it did to the requirements of the Fourteenth Amendment. 

I also thought that Stephen Wermiel might overstate the matter when he says that "the separationist view", which he associates with Justice Brennan, has "all but disappeared" on the Court.  Here, I think we need to be a bit more nuanced about what "separationist" means, and doesn't mean.  For example, some of us think that the Court's 9-0 decision in Hosanna-Tabor is an (appropriately) "separationist" decision, one that vindicates  what Wermiel calls "the essence of [Brennan's] separationist view—that having government involved in your religion demeans your religious beliefs."   And, the strict separationist Justice Brennan supported strongly the idea -- the idea that is operationalized in the Religious Freedom Restoration Act, which was interpreted and applied in Hobby Lobby -- that it is appropriate to exempt religious believers and institutions, when it's possible, even from generally applicable laws that burden religious exercise, an idea that, unfortunately (as Paul discussed the other day), is increasingly regarded as a bigoted, right-wing "dog whistle."

 

Posted by Rick Garnett on January 14, 2015 at 01:03 PM in Constitutional thoughts, Religion, Rick Garnett | Permalink | Comments (1)

Tuesday, January 13, 2015

Guaranteed salary and understanding the Supremacy Clause

Bills have been introduced in Texas and South Carolina attempting to prevent courts from recognizing same-sex marriages, in part by controlling salaries and funding. The Texas bill prohibits any state or local government employee from recognizing, granting, or enforcing a same-sex marriage license, with anyone who does losing her salary; a separate provision extends this to state judges. The bill also requires the court to dismiss any constitutional challenge to the law and to require plaintiffs to pay fees. The South Carolina bill is similar--no recognizing, granting, or enforcing same-sex marriage licenses, no public funds or salaries spent for doing so, required dismissal of any challenges to the law, while also specifically prohibting the use of any public funds to enforce any court order (including, presumably, a federal court order) to issue a same-sex marriage license.

Obviously, neither bill has a remote chance of passing; trying to stop marriage equality is simply a fool's errand at this point. And there are too many constitutional defects to count. But I want to highlight a couple.

First, a shout-out to the unsung Article III protection--judges "receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office." Everyone focuses on life tenure as the great bulwark of judicial independence (or as a bad idea whose time has passed); there is less focus on guaranteed salary, even though, as these crazy bills show, it otherwise would be a prime target for a legislature angling to control constitutional adjudication.

Second, I have questioned Slate's Mark Joseph Stern before for the legal errors in his articles (I have no idea if he has a J.D.). Today, he argues that these bills are in "clear violation" of the Supremacy Clause by imposing a sanction on a judge who is just following federal law as declared by the Fourth Circuit (which includes South Carolina) and many, many federal district courts. But neither a federal court of appeals nor a federal district court binds a state court. A state court is free to ignore these decisions. And, at least as a matter of the Supremacy Clause, a state legislature is free to compel its courts to ignore those decisions (there may be other reasons the legislature cannot do this). So why make up reasons that are simply wrong.

Third, what would the Constitution of either state have to say, specifically about the provisions requiring state courts to dismiss challenges to these laws. During the Theresa Schiavo Controversy, the Florida Supreme Court adopted a principle very much like United States v. Klein as a matter of state separation of powers. These bills run afoul of Klein's idea that legislatures cannot tell courts how to decide cases, to the extent that principle applies to state governmental structures.

Posted by Howard Wasserman on January 13, 2015 at 05:50 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (11)

Monday, January 12, 2015

More on rotating Chief Justices

At CoOp last week, Gerard Magliocca asked whether it would be constitutional to shift away from the current system of a separately appointed Chief Justice in favor of a system of rotating Chiefs, either based on seniority (as on the Federal Districts and Circuits) or based on selection by thesitting Justices (as happens on some state supreme courts). I have used this question in Fed Courts, in the last days of the class when we discuss the theoretical stuff on congressional control over the courts. Edward Swaine (GW) considered the question in a 2006 piece in Penn Law Review, concluding that the present scheme of appointing/confirming one person to the position of Chief Justice of the United States was not constitutionally required and that Congress could change the manner of selecting a Chief Justice (the Constitution requires that there be a Chief Justice). I agree with Swaine on the constitutional point.

But is it a good idea? Gerard argues that a rotating system distributes the powers to preside and to assign opinions, which otherwise remain exclusively with the Chief or with the senior-most Associate Justice in the majority, possibly for quite awhile. And if the Chief and the senior-most Associate often disagree, the assignment power remains firmly in two sets of hands for a significant number of cases.* How might deliberations and decisionmaking change if there were more variance over time in the assignment power? How might oral arguments change if the presiding Justice changed more often?

(*) This would make an interesting empirical question, actually. In the past 40 years, we have had two such lengthy periods--1975-90 (Burger/Rehnquist as Chief, Brennan as seniormost Associate) and 1994-2005 2010 (Rehnquist/Roberts as Chief, Stevens as seniormost Associate). [Ed: I cut Stevens short, forgetting that he spent five additional years as senior associate after Rehnquist's death, with Roberts, a Justice with whom he often disagreed, as Chief.  This 2011 article explores how and how often Stevens exercised the assignment power as senior associate justice]

The counter-argument attaches to the idea that the Chief carries a unique connection, allegiance, and obligation to the "Supreme Court as an institution." This affects how the Chief performs administrative functions as the head of the entire federal judiciary--for example, by chastising Congress for insufficient funding and failure to fill vacancies, regardless of which party is in control. And it may carry into decisionmaking. Chiefs have cast surprising votes in cases that are atttributed, rightly or wrongly, to that loyalty and to an interest in protecting the Court's institutional legitimacy, even at the expense of their own jurisprudential preferences--people often point (again, rightly or wrongly) to Roberts upholding the individual mandate in NFIB or Rehnquist affirming the constitutional basis of Miranda in Dickerson. The concern is that someone serving only 6-8 years as Chief (the typical term for a lower-court Chief Judge) as part of longer service as a Justice will not feel that same institutional obligation, potentially at some cost to the Court as a body. Moreover, there is a sense that someone must "grow" into the Chief Justiceship and learn to perform well the various administrative and institutional functions, which takes more time than a rotating term would allow; the longer, permanent chiefdom is necessary to allow for that leaning curve.

Posted by Howard Wasserman on January 12, 2015 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Monday, January 05, 2015

Merging systems in the wrong direction

I have written before that I have come to prefer a UK-style parliamentary system, in which the executive is guaranteed legislative majorities and we are open about the partisan connections between the executive and the legislature. But Keith Humphreys, blogging at the Reality-Based Community, discusses how the UK (where an election is coming in May) is, unfortunately, looking more like the US than the other way around.

First, the focus of the election is now on the prime minister candidates and their personalities and views, ignoring the connection between the party leader and the party-in-the-legislature. Second, there is an increasing preference for divided government, with voters moving towards divided government and coalition governments, in which mutliple parties have enough seats to be at the negotiating table and the major party is unable to govern as it wishes; Humphreys sees this as a departure from Britain's historic preference for "giving the other fellow a chance."

Posted by Howard Wasserman on January 5, 2015 at 04:51 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Tuesday, December 23, 2014

Enforcing Medicaid Against Recalcitrant States: The Former HHS Officials' Amicus Brief in Armstrong

Back in October, I wrote a post, titled "Is Ex parte Young Doomed?," about the Supreme Court's grant of certiorari in Armstrong v. Exceptional Child Center, Inc., which the Justices limited to the following question:

Does the Supremacy Clause give Medicaid providers a private right of action to enforce § 1396a(a)(30)(A) against a state where Congress chose not to create enforceable rights under that statute?

As I wrote back then, this is the exact question that the Court ducked in its 2012 decision in Douglas v. Independent Living Centers of Southern California--a case in which, in a four-Justice dissent, Chief Justice Roberts would have dramatically curtailed the ability of private litigants to bring Supremacy Clause-based claims for injunctive relief to enforce any federal statute against a state officer if that statute didn't provide its own cause of action. Although HHS effectively mooted Douglas by approving the contested California state plan amendment while the case was pending, such a step is almost certainly not available in Armstrong--which means the Justices in the majority in Douglas, especially Justices Kennedy and Breyer, will now have to take a position on whether such a Supremacy Clause-based suit for injunctive relief is ever available for statutes lacking private causes of action. (The Supreme Court has previously endorsed the availability of such suits, but hasn't revisited those cases since its more recent jurisprudence curtailing the ability of private litigants to enforce statutes without their own cause of action, whether directly or through 42 U.S.C. § 1983).

One of the interesting back-stories to Douglas, which I covered in some detail on this blog, was the aggressive (and, in my view, disappointing) anti-private-enforcement position taken by the Solicitor General in an amicus brief filed in support of California. Leaving aside the controversial merits of the SG's Douglas brief, it was also a position that was radically inconsistent with the historical position of the Department of Health & Human Services (HHS) on the private enforcement question, especially with regard to "Section 30(A)"--the Medicaid Act's requirement that states set reimbursement levels high enough so that Medicaid recipients are able to have "equal access" to median quality medical care. Without this "equal access" mandate, economic pressures would almost certainly lead states to reimburse providers at the lowest possible levels, which in turn would likely relegate Medicaid recipients to the worst available providers. The problem, as the ACA litigation helped demonstrate, is that HHS doesn't have a lot of choices when faced with a state violating the Medicaid Act. The only real "stick" HHS possesses in such a scenario is the drastic remedy of cutting off Medicaid funding--which punishes the beneficiaries far more than it punishes recalcitrant states.

To that end, and tellingly, HHS did not sign the SG's Douglas brief, even though it had signed the SG's more equivocal cert.-stage amicus in the same case (which had recommended that the Court not take the case). Instead, in Douglas, I helped to put together an amicus brief on behalf of "Former HHS Officials," explaining why, because of the reality described above, (1) HHS has historically supported private enforcement of the Medicaid Act (and Section 30(A) in particular); and (2) partly as a result of this historical pattern, and partly for other reasons, lacks the institutional, political, financial, or administrative resources effectively to enforce Medicaid all by itself. 

As in Douglas, the SG has once again sided with the states in Armstrong--albeit in an amicus brief that appears, at first blush, to be far more modest. Instead of opposing Supremacy Clause-based claims for injunctive relief in general, the SG's Armstrong amicus punts on that question, arguing that the Court need not resolve that general issue because "recognition of a private right of action under the Supremacy Clause in this case would be incompatible with the statute, the methods for its enforcement, and respondents’ claim."

And as in Douglas, a group of former HHS officials (including 15 senior administrators from three different administrations, led by former Secretaries Califano and Shalala) has now filed an amicus brief disputing the SG's position--and documenting how, 

Since the early days of the Medicaid program, federal courts have recognized that providers may sue to ensure that state Medicaid plans conform to the requirements of federal law. Congress intended for such enforcement, and HHS has understood—and come to rely upon—its existence.

The brief, which I co-authored along with Matt Hoffman and Andrew Kim from Goodwin Procter, is in some important ways different from the brief we filed back in Douglas. There, our focus was on the SG's (since abandoned) position that private enforcement of the Medicaid regime would generally interefere with HHS's enforcement authorities and discretion. Here, our focus is on the SG's more modest claim about congressional intent and judicial enforcability of Section 30(A). Thus, the SG's Armstrong brief argues that Congress never intended for such private enforcement--and, even if it did, that courts would struggle to provide such enforcement given the vague language of the "equal access" provision's mandates.

Our brief rejects both of those claims, demonstrating how, not only have courts routinely applied Section 30(A)'s procedural and substantive requirements without serious difficulty (and, indeed, would have to do the same thing if HHS started to reject state Medicaid plans on the ground that they violate Section 30(A)), but how that provision--one of the Medicaid Act's most important requirements--would effectively be unenforcable without private enforcement by Medicaid beneficiaries or providers through some vehicle.

In other words, insofar as the SG's brief tries to duck the larger question implicated in Armstrong by arguing that Section 30(A) is an especially weak federal statute to enforce through such a Supremacy Clause-based injunctive action, our brief argues that it is, in fact, a textbook case for such a claim--since it is an essential federal mandate against states that, without such private enforcement, would almost certainly be frustrated.

Idaho's opening brief is available here; the Respondents' opening brief is here. Oral argument is scheduled for Tuesday, January 20.

Posted by Steve Vladeck on December 23, 2014 at 10:51 AM in Civil Procedure, Constitutional thoughts, Steve Vladeck | Permalink | Comments (5)

Monday, December 15, 2014

(Mis)trusting States To Run Elections

The Supreme Court is probably going to hear another voter ID case within the next year or so -- from Wisconsin or Texas -- or different case involving a state's administration of an election, such as one about North Carolina's very restrictive voting law.  I bet the Court will largely defer to a state in its election-related processes and will probably uphold whatever law it reviews.  But that is unfortunate, because it is both doctrinally wrong and practically dangerous. 

As I recount in a new article, forthcoming next month in the Washington University Law Review, the Court too readily defers to a generic state interest in "election integrity" when reviewing the constitutionality of a state's election practice.  Previously, a state had to provide a specific rationale for the law, especially under a higher level of scrutiny.  Now, however, so long as a state says "election integrity," the Court does not question that justification, taking it at face value as an important governmental interest.  But often the state is not really trying to achieve election integrity, at least not principally.  There are often partisan motivations behind an election regulation.  How else can one explain a law, such as North Carolina's, that is passed on a party-line vote and will effect only the minority party's supporters?  Contrary to the approach to state election rules, the Court has closely scrutinized Congress's rationale for an election regulation, refusing to defer to legislative judgment.

Moreover, the Court has said that election litigation should proceed only through as-applied challenges, which requires piecemeal adjudication, yet it has invalidated several federal election laws on their face.  Requiring only as-applied litigation provides a procedural mechanism to defer to a state's election processes.

After the jump I explain the problems with this approach. 

Defering to states substantitively on their interests in an election law and procedurally through as-applied challenges is constitutionally suspect, especially because the Court does not analyze federal election rules in the same manner.  This mode of analysis ignores the fact that the U.S. Constitution, through the Elections Clause (Art. I, Sec. 4), gives Congress an explicit oversight role in state election rules.  In addition, the various amendments relating to voting provide that Congress may "enforce" those constitutional mandates.

The deference is also dangerous.  States know that their laws will not receive meaningful scrutiny and that they need only tie a new rule to "election integrity" in the abstract to pass the first prong of the constitutional test (the state interest prong).  This emboldens state legislatures to enact laws with partisan gains in mind because they can gloss over that point by raising the "election integrity" mantra.  But partisan motiviations should play no role in how we structure our elections.

The Court should not defer so readily to a state's election process.  Instead, the Court should apply a meaningful form of strict scrutiny review to laws that infringe upon the constitutional right to vote and require both Congress and legislatures to justify their laws with a stronger rationale than just election integrity, especially if there is an inference that the legislature really had partisanship in mind.

Here is the abstract of the article, for those who want more on this argument:

Current Supreme Court doctrine defers too readily to states’ voting systems. In the process, the Court has removed Congress from the elections business. The Court has done so not explicitly but through two judicial maneuvers, one substantive and the other procedural, that place tremendous trust in states: lowering the bar for the state interest prong of the constitutional analysis, and forbidding facial challenges to state rules on election administration. The Court has credited any state assertion of “election integrity,” even if that is not the actual impetus for the law under review. It also will reject a facial challenge to a state voting rule, thereby leaving the law in place until a plaintiff has gathered actual evidence of the law’s impact on particular voters. The Court has not treated Congress the same, demonstrating its willingness to invalidate a federal voting rule on its face even when Congress has asserted a more detailed rationale for the law. This Article uncovers this approach to constitutional challenges to voting regulations. It also explains why this current jurisprudence is both wrong and dangerous. It is wrong because the U.S. Constitution gives the federal government significant scope to promulgate election regulations, and states are subordinate to Congress under our constitutional structure. It is dangerous because the current deferential approach emboldens states to pass partisan-based laws with an eye toward affecting elections, and all a state needs to say to justify a new law is that it is seeking to ensure “election integrity.” The Court should reverse this current jurisprudence by requiring states to provide a more detailed justification for an election law and by allowing broader use of facial challenges to invalidate state voting laws, when necessary, before they are implemented. Voting, as a fundamental right, deserves robust protection from the courts. Scrutinizing state election laws more closely will help to achieve this worthy goal.

Comments are welcome! 

Posted by Josh Douglas on December 15, 2014 at 02:10 PM in Article Spotlight, Constitutional thoughts, Law and Politics | Permalink | Comments (1)

Monday, December 08, 2014

The Scope of Voting Rights Under Article I: Understanding the Problem

My current project, Protecting Political Participation Through the Voter Qualifications Clause of Article I, tries to determine the scope of the voting rights that are protected by Article I, Section 2 of the Constitution, which provides that “The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for the electors of the most numerous branch of the state legislature.”  I find this particular clause fascinating because the Supreme Court once relied on it to ground some of its one person, one vote and constitutional voting rights jurisprudence, but this provision has since fallen into obscurity because of mistakes that the Court made in the same cases that initially looked to Article I to protect the right to vote.   

In Wesberry v. Sanders (the lesser-known companion case to Reynolds v. Sims), the Court held that the states’ failure to reapportion their congressional districts violated Article I, Section 2.  Similarly, in Harper v. Virginia Board of Elections, the Court read Article I, Section 2 to create a fundamental right to vote in federal elections.  Problems arose, however, when the Court tried to determine which provision of the Constitution protects the right to vote in state elections.  Thus, in Reynolds v. Sims, the Court held that the states’ failure to reapportion their state legislative districts violated the Equal Protection Clause of the Fourteenth Amendment (rather than Article I, Section 2).  Harper likewise found the right to vote in state elections to be protected by the Equal Protection Clause.     

Treating the right to vote in state elections as a fundamental interest protected by the Equal Protection Clause has led to several problems in the Court’s jurisprudence.  Notably, neither Harper nor Reynolds stand for the proposition that the right to vote in state elections has to exist, even if the corresponding right to vote in federal elections must exist.  Grounding the right to vote in state elections in the Equal Protection Clause, according to the Court, permits states to choose whether to extend the right to vote to its citizens, but once available, has to be offered on equal terms.  This notion of the right to vote as optional, rather than mandatory, is contrary to the traditional conception of the right to vote as a fundamental right that is “preservative of all other rights.”  In addition, the equal protection framework, modified in decisions subsequent to Harper to be more deferential to state authority, has come to dominate the assessment of all regulations governing the right to vote, regardless if the law applies to state elections, federal elections, or both.  Thus, the importance of the right to vote in federal elections, as originally protected by Article I, has gotten lost in the evolution of the Court’s standard of review from one that strictly scrutinizes state voter qualification standards to a balancing test that is extremely deferential to state authority.   

I find this state of affairs to be completely perplexing given that the Voter Qualifications Clause provides that, with respect to voter qualifications for federal elections, “the electors in each state shall have the qualifications requisite for the electors of the most numerous branch of the state legislature.”  Because this provision makes federal voting rights dependent upon participation in state elections, this framework suggests that the right to vote in state elections is not optional (as an Equal Protection analysis would suggest) and it has to broadly available in order to protect the fundamental right to vote in federal elections.  In my next post, I will provide more evidence to show why this reading of Article I is the correct one.  

Posted by Franita Tolson on December 8, 2014 at 10:28 AM in Constitutional thoughts, Law and Politics | Permalink | Comments (2)

State Judges and the Right to Vote

If you follow elections, you probably heard about the Supreme Court's last-minute decisions in the Wisconsin and Texas voter ID cases, stopping Wisconsin from implementing its ID law but allowing Texas to move forward with its law for the 2014 election.  But unless you study election law, I bet you didn't notice the Arkansas Supreme Court decision invalidating that state's voter ID law, or the myriad other election cases state courts decide that affect the voting process.

But state courts are intimately involved in regulating elections, especially given that, unlike the U.S. Constitution, all state constitutions explicitly confer the right to vote.  Indeed, to understand the meaning and scope of the right to vote, we need to study how state judicial decisions impact the way in which we run our elections.  Below the fold I provide some details of my study of state judges and the right to vote.

This inquiry reveals some interesting trends.  

First, state courts decide lots of cases on issues of importance, such as voter ID, felon disenfranchisement, the legality of voting machines, whether to keep polls open late, whether to count absentee ballots, and others.  State court activity on voting rights is much more robust than federal court decision making in this area.  Yet as legal scholars and as a society at large we tend to pay much less attention to state cases than to federal court decisions.  Second, not surprisingly, "liberal" judges tend to construe the constititutional right to vote more broadly than "conservative" judges.  Third, appointed judges are better than elected judges at ruling more broadly toward voting rights, especially for political minorities.

These gems--and others--fill up the pages of my new draft, State Judges and the Right to Vote.  I'd be delighted for comments and thoughts on the piece.  Here is the abstract:

State courts are paramount in defining the constitutional right to vote. This is in part because the right to vote is, in many ways, a state-based right protected under state constitutions. Yet our focus on state courts and on how state judges interpret the right to vote is sorely lacking. This article remedies that deficiency. It examines numerous state court cases involving voter ID, felon disenfranchisement, and the voting process, demonstrating that state courts vary in whether they rule broadly or narrowly toward voting rights. When state courts issue rulings broadly defining the constitutional right to vote, they best protect the most fundamental right in our democracy. On the other hand, state decisions that constrain voting to a narrower scope do harm to that ideal. Further, a preliminary analysis shows that liberal judges, as well as those who earn their seats through merit selection, are more likely to define the right to vote robustly as compared to their conservative and elected counterparts. Given that state judges impact our election system in significant ways through broad or narrow rulings on voting rights, we should advocate in favor of state courts and state judges who will broadly construe and protect the state-based constitutional right to vote.

Posted by Josh Douglas on December 8, 2014 at 09:51 AM in Article Spotlight, Constitutional thoughts, Current Affairs, Law and Politics | Permalink | Comments (0)

Thursday, December 04, 2014

Prosecuting police--the role of the grand-jury pool

Alexi Lahav (U Conn) shares this op-ed by Ilaan Maazel suggesting reforms in policing police misconduct, including body cams (while recognizing they are not a panacea) and having all prosecutions handled by an independent special prosecutor rather than the local DA. In a Slate piece in September, Kate Levine suggested something similar (she specifically wanted to turn all cases over to federal prosecutors), which I questioned.

But in light of recent events, I am beginning to come around to the idea that Maazel and Levine are pushing. Moreover, I am coming around not only to the idea of requiring a special state prosecutor or the State AG, which Levine suggested and which I thought might work, but to the idea of making everything federal.

The focus in both the Brown and Garner cases has been on the respective local prosecutors and their supposed failures to be sufficiently aggressive. And the argument generally is that local prosecutors, by necessity, are always too close to the police.

But perhaps we also should consider the effect of the composition of a state as opposed to federal grand jury. Maybe part of the problem involves the likely decisions or actions of body drawn entirely from people in St. Louis County or Staten Island/Richmond County who are immersed in the local passions and politics; maybe a federal body drawn from the entire Eastern District of New York or Eastern District of Missouri, less immersed in those local passions and politics, can process things differently. Of course, it may not matter given modern media--everyone knows the details of high-profile cases such as these. But perhaps someone from Montauk or Cape Girardeau has a bit more distance from the events, a bit more distance from the local police, and thus a greater willingness to find a basis to pursue a criminal case.

Posted by Howard Wasserman on December 4, 2014 at 05:41 PM in Constitutional thoughts, Criminal Law, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Tuesday, December 02, 2014

Michael Brown and the return of Brandenburg

A colleague asks a question:

Did Louis Head, Michael Brown's stepfather, commit incitement within the meaning of Brandenburg? Law enforcement apparently is investigating possible charges. Immediately following the announcement of the grand jury decision, Head was captured on video (embedded-go to 2:30 mark) shouting "Burn this motherfucker down" and "Burn this bitch down" (as people around him tried to calm him down).

Brandenburg requires that incitement be "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." The Brandenburg paradigm is a torches-and-pitchforks mob outside a poorly guarded jail and the leader saying "let's get that guy in there." We definitely have a mob here (although hardly in a poorly guarded area, since there were police in riot gear across the barricade and the National Guard was in the area). But I do not see how the state could show intent. There also is Hess v. Indiana, in which the Court overturned a conviction where the defendant was not addressing any persons or group and he was no louder than anyone else in the group. Certainly Head was at the center of crowd and he can be seen asking for a microphone or bullhorn, as if trying to address the crowd above the noise. But he also just appears to be one of many people shouting into the sky in a show of anger, in his case, immediately after embracing his wife, who had just broken down.* He just happened to be caught on camera, which raises an interesting question--if his words reached millions watching TV but not the people who did the actual rioting, can he be said to have incited the crowd?

* Yes, I acknowledge that this perception may be influenced by my views of the case and the First Amendment and that mileage may vary.

I have been kicking around an idea that the legal change to come out of Ferguson may be all about the First Amendment--militarized police responding to public gatherings, negotiations on rules of public protest, citizen video, unconstitutional move-along policies. A good old-fashioned incitement/advocacy of unlawful conduct argument would top that off.

Posted by Howard Wasserman on December 2, 2014 at 06:04 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Wednesday, November 26, 2014

Ferguson – What Now? (guest post)

 This is the final post on Ferguson from Timothy Zick:

Monday night, peaceful vigils and other protected forms of protest were largely overshadowed by acts of violence and destruction.  As headlines attest, the Ferguson “protests” have already been displaced in the news cycle by the Ferguson “riots.”  The facts are still coming in, but by most accounts police were not the instigators.  The commercial and other costs must be laid at the feet of the lawless, who engaged not in legitimate protest or demonstration but in petty and more serious criminal activities.  While their frustration may be understandable, their actions were obviously neither wise nor constructive.  The violence was not, as some have suggested, inevitable.  Whatever their underlying causes or motivations, the riots were a choice. 

There will be additional protests and demonstrations in Ferguson and elsewhere.  Hopefully they will be vocal, but peaceful, events.  The issues are worth demonstrating about.  But as I wrote in my previous post, public sympathy will not be with the protesters forever.  Last night may have been a tipping point.  The media will focus on Ferguson for a bit longer, but the news cycle will inevitably find other conflicts and the press will move on.  Many left behind will have expressed their outrage, or have been affected by the actions of those who did so.  What will be the legacy of the Ferguson protests (past, present, and future)? 

In the wake of last night’s events, hopelessness seems to be pervasive – particularly among many Ferguson residents, who have been witnesses to the conflict from the beginning.  The protests and demonstrations have not been empty or meaningless events. They have pricked the public conscience, highlighted grievances, jump-started conversations about social and political issues, and demanded attention from public officials.  It would be unfortunate if rioters tarnished or diminished some or all of these important accomplishments. What happens next depends on forces that lie beyond public streets and other public forums.  Too often, protesters do not follow action in the streets with concrete social and political activity.  Protests and demonstrations are not ends in themselves.  They can be catalysts for change, but only if organizations and associations work to channel their outrage and energy.  Expressions of outrage from civil rights leaders are fine.  But Ferguson desperately needs an organization, preferably a local group, to take the lead.  Other elements of the community can also work toward policy changes.  Rioters can trade bricks for ballots, residents can work toward rebuilding or strengthening community ties, and officials can follow through on promises made in the heat of the moment – or be held accountable by higher authorities.  What’s next for Ferguson is not at all certain.  The protests and demonstrations have created an opportunity and suggested an agenda that includes criminal justice reform and protection for civil rights.  For the sake of Ferguson itself, let’s hope that peaceful activists seize that opportunity.

Posted by Howard Wasserman on November 26, 2014 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Monday, November 24, 2014

The costs of public protest (guest post)

The following is another guest post from Timothy Zick (William & Mary).

Some of my First Amendment work has focused on highlighting the social, political, and constitutional benefits of public protests.  Protests can also impose serious costs.  Mass protests can be particularly invasive forms of contention.  They disrupt routines, alter urban and other landscapes, and inconvenience entire communities.  Some of these effects may actually make a protest more effective – unlike a pamphlet or this blog post, a mass protest cannot easily be ignored.  Still, for those caught in its path, a public protest (or a prolonged series of them) can impose very real and significant costs. 

Some of the costs of the Ferguson protests (past and anticipated), have received some media attention.  Merchants are concerned that the prolonged state of unrest will harm their enterprises.  Ferguson schools have been closed in anticipation of the grand jury’s decision.  And there are the costs of policing the protests themselves, which can add up to millions (including the cost of any civil rights lawsuits and settlements, as New York City and other jurisdictions have learned).  The psychological costs can also be significant.  Living in an environment of daily conflict and protest policing can take its toll on communities.  For example, many people seemed to lose patience with the Occupy protests – not just because of the tangible costs they imposed, but also owing to the emotional and psychological strain associated with long-term “occupation.”  

Recognizing these costs does not diminish rights of free speech and peaceable assembly.  Indeed, it places First Amendment rights in appropriate perspective.  In general, we cherish and protect these rights despite their significant financial and other costs.  We collectively accept these burdens as the price of expressive freedoms.  We subsidize them, even when the distribution of costs sometimes seems unfair.  (We also have the right to complain about this unfairness.)  However, as protest organizers should know, there are limits to public tolerance.  There is a point at which public support begins to wane and the effectiveness of public contention begins to diminish.  Sooner or later, protesters will need to channel their outdoor energies to indoor political and other arenas.  As Michael Brown’s father suggested in a video appeal to protesters, the time will come when protest will need to be translated into policy changes.  To some degree, the mark of a successful protest movement is its ability to effect meaningful change.  Protests have inherent worth.  But the subsidies and sacrifices are all the more “worth it” insofar as they facilitate or produce something tangible, meaningful, and lasting.   

Posted by Howard Wasserman on November 24, 2014 at 10:01 AM in Constitutional thoughts, First Amendment | Permalink | Comments (0)

Sunday, November 23, 2014

Judicial Elections and Historical Irony

Last week I was privileged to participate in a conference in New Mexico on the judiciary.  The debates and assigned readings focused especially on judicial elections (a new issue-area for me).   There, I learned that a little historical context can radically change the aspect of many current debates about the choice between an elected or appointed judiciary (and the many variants in between, including systems of merit selection and appointment with retention election).  

“Judicial independence” is the rallying cry today for those who want to eliminate or at least tame judicial elections in the states.  This “judicial independence” variously refers to judges’ freedom or willingness to take unpopular stances on policy and constitutional interpretation (think of same-sex marriage in Iowa), or judges’ impartiality and freedom from undue influence in particular disputes (think of business complaints that judges have become too thick with the plaintiffs’ bar, or of corporate efforts to use campaign contributions to buy case outcomes as suggested in Caperton v. Massey Coal).  

 With many judicial elections now under the shock of increasing party polarization, interest-group mobilization, and campaign spending, it seems likely that these calls to end judicial elections for the sake of judicial independence will only intensify.  Yet one of the historical ironies I learned from the conference readings is that “judicial independence” was also the primary value that was put forward as the rationale for creating elected judges in the first place.  

 In the mid-nineteenth-century campaigns for an elected judiciary, however, the sort of judicial dependence that was especially targeted by reformers was judges’ dependence on state legislatures and associated party machines that had become corrupt or spendthrift (especially in economic development projects).  It was hoped that a switch to elected judges would empower judges to reign in discredited legislatures, policing them for their fidelity to the state constitutions (“the people’s law”) while keeping judges accountable to the people through elections (and later, recalls).  

 The longer history of elected judges in the United States offers many other enlightening contrasts with today’s premises. (The stance of the professional bar towards the desirability of elected judges flipped over time.  The dominant presumption about whether appointed or elected judges are the ones more likely to lean conservative or liberal also flipped over time…)  For now, however, I only want to ask one question of this rich history—whether it makes plausible the possibility that, in some states, contemporary reform movements to eliminate elected judges will have unintended adverse consequences for democratic responsiveness and the separation (or balance) of powers between the judiciary and other branches of government.

 My question is prompted--not by a preference for elective over appointive judiciaries--but by the historical scholarship that shows that the nineteenth-century push for elected judges was often packaged with—and used as a justification for—very substantial expansions of judicial power and very substantial curtailments of legislative power.  Making state judges electorally accountable was supposed to make it safe to greatly expand the role of judicial review of legislation, and to give judges much more independence from the other branches in the terms and conditions of their appointments.  

 This new form of judicial accountability to the electorate even justified a judicial role in which judges were tasked to police procedural constraints on the legislatures, including rules that had previously been considered essentially internal to the legislature (perhaps—I wonder—starting to unravel some of the Anglo-American tradition of legislative autonomy and privileges that had taken centuries to develop).  Meanwhile, this change in the role of judges may also have coincided with the decline of juries.

 If much of the nineteenth-century judicial empowerment and legislative disempowerment was enacted on the premise of it being bundled with judicial elections, then I ask—if some states now revert to appointed judiciaries without also considering the larger package—do they risk an institutional imbalance or loss of democratic accountability in the legislature and executive?  (Perhaps this question is already asked and answered somewhere in current policy debates or scholarship?)

 It would be nice to think these structural matters of constitutional development tend towards equilibrium in some organic fashion.  At the least, we can expect that state legislatures and executives will long retain the cruder sorts of tools for reining in abuses of appointed judges.  Depending on the particular state, these might include decisions about judicial budgets, impeachment or removal of a judge upon legislative address, jurisdiction-stripping, court packing, or informal control of judges through the influence of political parties and the professional bar.  Nonetheless, I find it just as easy to imagine that judicial empowerment at the expense of legislatures might be ‘sticky’, if never a one-way ratchet.  Here I am influenced by the social science accounts that suggest that, around the world today, judicial power has been much expanding at the expense of legislatures.  I am also thinking about the possibility that there may be institutional biases in some states against structural adjustments (like ’single subject rules’).

In theory, the public should have the capacity to ensure that one branch of government never gets too big or unaccountable.  In the many states that are characterized by constitutions relatively easy to amend, constitutional change is, after all, supposed to occur more through formal amendment processes than through judicial interpretation.  Even so, query whether such large structural questions lend themselves to retrospective scrutiny and popular oversight.  (This is a real, not rhetorical, question for someone who has a lot more knowledge about the states and judicial reform movements than I now have.)

 John J. Dinan, The American State Constitutional Tradition (Univ. Press of Kansas, 2006)

 John Ferejohn, “Judicializing politics, politicizing law,” Law and Contemporary Problems 65 (3): 41–68 (2002).

 Jack P. Greene, The Quest for Power: The Lower House of Assembly in the Southern Royal Colonies (Norton, 1972)

 Jed Handelsman Shugerman, The People’s Courts: Pursuing Judicial Independence in America (Harvard Univ. Press 2012)

 G. Alan Tarr, Without Fear or Favor: Judicial Independence and Judicial Accountability in the States (Stanford Univ. Press 2012)

Posted by Kirsten Nussbaumer on November 23, 2014 at 10:34 PM in Constitutional thoughts, Current Affairs, Judicial Process, Law and Politics, Legal Theory | Permalink | Comments (7)

Friday, November 21, 2014

DOJ weighs in

Seeming to share my sense of where the burden should lie, Eric Holder released video urging law enforcement and protesters to collaborate on plans to keep the peace should protests occur in Ferguson. He reminded protesters that historically successful movements have relied on nonviolence, while calling on police to seek ways to keep order while respecting constitutional rights.  In addition, DOJ officials spoke with Missouri Governor Jay Nixon about the decision to declare a preemptive state of emergency, calling that an escalation of the situation that "sent the wrong message." DOJ also released a resource guide for policies and training on community policing and handling public protest (although it seems a bit late in the day for that).

This is a good reminder of the unique role that DOJ and the Attorney General can, and sometimes do, play in these sorts of localized conflicts, remaining above the simplified law-enforcement fray.

Posted by Howard Wasserman on November 21, 2014 at 01:57 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Thursday, November 20, 2014

Zick on public protest and Ferguson

The following post is by Timothy Zick (William & Mary), the author of Speech Out of Doors and the leading expert on public protest and the First Amendment.

Many thanks to Howard for inviting me to weigh in on the events in Ferguson, Missouri.  I’ll probably add just a few posts to his excellent commentary, depending on how things develop.

The conflict in Ferguson has presented a free speech moment – or series of moments. In addition to the much-discussed protests (more on that below), there have been several other First Amendment issues and concerns:  advocacy of civil disobedience by some protesters, arrests for unlawful assembly, allegations that prior restraints have been used, arrests and abuse of the press, occupation of public places, use of “free speech zones,” and concerns about the propriety of Ferguson police officers wearing bracelets that express support for Officer Wilson.  In short, there has been no shortage of First Amendment controversies following Michael Brown’s death.

Of course, the protests themselves have occupied center stage.  The media are attracted to conflict, and the conflict is important.  Once again, we have seen the delicate balancing of tolerance and respect for public assembly and speech with the need for order and public safety playing out in real time.  And once again, the results have been disappointing - or worse.  As I argue in my book, Speech Out of Doors, a variety of legal and non-legal forces have combined to challenge traditional protests and other public modes of contention and dissent.  Howard has thoughtfully posted on some of the problems associated with the militarization of public places and escalated force protest policing (e.g., here and here).  Chapter 7 of my book examines militarization at various public events, including national party conventions, presidential inaugurals, and world summits.  Militarization has been on the rise, in part owing to post-9/11 federal dollars flowing to local police departments.  As Ferguson shows, local police forces across the nation are now equipped with the tools of militarization.  Some have used surveillance, shows of force, and other military tactics in policing local events. 

Of course, the possession of military-style equipment does not guarantee the use of escalated force.  Police forces can and do act with appropriate restraint.  Some of Howard’s commenters have asked about evidence for the link between militarization and protester responses.  Social scientists have carefully studied protest policing, and they have argued in favor of a “negotiated management” style in part owing to the costs of escalated force policing.  Of course, there is historical evidence that escalated force leads to violent confrontations – the 1968 Democratic National Convention in Chicago, the WTO debacle in Seattle in 1999, and recent national party conventions in Boston, New York, and elsewhere. Sure, some protesters at these events were looking for violence.  And sure, sometimes police need to respond with force.  But as Howard’s posts suggest, one of the problems with militarization is the attitude it sends about public protests and public places.  As a mindset, militarization can exacerbate and even invite conflict.  This was one reason many police departments abandoned escalated force policing.  It’s come back, in the form of militarization.  I’m skeptical that we can keep arming police to the hilt while expecting them to exercise restraint in the face of angry and emotional crowds. When officers divide streets into military-style grids and gird for battle, even peaceful protesters and reporters are at risk.  To be clear, there is no excuse for lawless behavior by protesters.  Nor is criticism of militarization meant to suggest “anything goes” protest policing.  Balance, proportionality, and forbearance are required.  But too frequently of late, these things have been in short supply at public events. 

To their credit, Ferguson officials have tried everything from personnel changes to personal apologies in an effort to calm the public and preserve rights to peacefully protest and assemble.  Nevertheless, today there is a sense of foreboding in the press and on the blogs (including this one) about what will happen next.  Last night’s arrests of protesters outside a barricaded police station may be a harbinger of things to come, in Ferguson and elsewhere.       

Posted by Howard Wasserman on November 20, 2014 at 05:18 PM in Constitutional thoughts, First Amendment, Law and Politics | Permalink | Comments (4)

Rules of engagement, ctd.

In looking at the rules of engagement offered by leaders of potential Ferguson protests (calling themselves the "Don't Shoot Coalition") as a whole, the central question becomes one of defaults. The default, they argue, must be that this is a peaceful assembly and expressive event that police should allow to go forward without interference unless there is genuine indication of significant threats to public safety. And even then, the default should be that those threats are from individual lawbreakers, who should be dealt with, and not the demonstration itself or the great mass of lawful speakers and speech.

Of the 19 proposed rules, consider: # 16 (allow "every latitude" for free assembly and expression); # 15 (tolerate minor lawbreaking); # 14 (tolerate an expansion of the scope, size, or duration of the protest); # 13 (figure out alternate routes for foot and street traffic); ## 7-8 (not military gear or equipment--this is one the police flatly rejected); # 18 (no attempts to preemptively or pretextually stop protesters from organizing and beginning). This is not to mention more common-sense rules, such as be professional and don't use excessive force (# 17--we  really need to state that rule?)

We can disagree over particulars. But the tenor seems right to me: Start from the presumption that this is lawful and deal with it when it isn't, rather than the other way around.

Posted by Howard Wasserman on November 20, 2014 at 09:40 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Wednesday, November 19, 2014

Rules of engagement

One of the commentators on my earlier post asked what I would suggest as an alternative to calling out the National Guard. This is a start: Negotiations between law enforcement and protest leaders about "rules of engagement" in any upcoming protests following the grand jury decision. As Tim Zick described in his book, such negotiations have become a significant aspect of public protest, especially large, planned gatherings targeting specific times, places, and events. And while one would think that the First Amendment should be the only necessary rule of engagement, past events in Ferguson (and elsewhere) suggest that a clear body of rules, agreed upon and understood by all involved, might be a way to ease tensions from the start.

Unfortunately, one sticking point seems to be whether police will forego riot gear, armored vehicles, and tear gas in the first instance--in other words, police not working from a presumption that the gathering is a riot and protesters are combatants.

Posted by Howard Wasserman on November 19, 2014 at 10:59 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Tuesday, November 18, 2014

You can't have it both ways

Fox News (yeah, I know) reports that the FBI is warning law enforcement officials nationwide that the failure of the grand jury to indict Off. Darren Wilson is "likely" to lead to violence. In particular, they are saying that police and property may be targeted and that there may be cyberattacks by people "exploiting" the event as a way to engage in unlawful activity. Of course, the FBI also "stressed the 'importance of remaining aware of the protections afforded to the all U.S. persons exercising their First Amendment rights of freedom of speech and freedom of assembly.'”

Sorry, but you cannot have it both ways. If you put law enforcement (and the national guard) on High Alert for attempts to undermine society, it is impossible for them to simultaneously remain aware of the First Amendment, for fear of guessing wrong. And since it is impossible to tell the exploiters from the exercisers, the only solution is to get everyone off the streets.

This does not end well.

Posted by Howard Wasserman on November 18, 2014 at 09:21 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (3)

Prior restraint: How far have we really come?

In a comment to my earlier post on the preemptive state of emergency in Ferguson, Steven Morrison asks whether an advance state of emergency and deployment of troops amounts imposes such an extraordinary chill on speech as to amount to a de facto prior restraint. I think the answer is no. But the point made me think.

In a current work-in-progress, I discuss Walker v. City of Birmingham, in which the Court held that the Collateral Bar Doctrine applied even to the First Amendment and even as to a blatantly unconstitutional injunction. Anticipating civil rights marches during Easter week 1963, officials in Birmingham got a state judge to issue an injunction that repeated, word-for-word, the text of the city's unquestionably unconstitutional permitting ordinance* and prohibited movement leaders from leading or encouraging marches without a permit. When the marches went ahead anyway, the leaders were jailed for contempt of court for violating the injunction. A 5-4 Court upheld the convictions, insisting that the long-held obligation with an injunction is to challenge the injunction directly or obey it (in this case by getting a permit).

* In dissent, Justice Brennan derided this process of converting an ordinance to an injunction as "inscrutable legerdemain."

So my answer to the question in the title of the post is that we actually are moving backward where public assembly and expression are concerned. As corrupt as the events and officials in 1963 Birmingham were, they at least went through the pretense of judicial process. Here, with the stroke of a single executive's pen, the possibility of protest--even without any genuine threat of unlawful behavior--has been declared an emergency and a threat to civil society, justifying deploying military force and turning Ferguson into a battle zone.

Can we really say this is more respectful of First Amendment ideals than what happened fifty years ago?

Posted by Howard Wasserman on November 18, 2014 at 06:44 PM in Constitutional thoughts, Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, November 17, 2014

Inevitable conflict and the state of the First Amendment

This story reports on some planned protests in and around Ferguson when, as expected, a state grand jury declines to indict Off. Darren Wilson in the shooting death of Michael Brown. And this story reports that the governor has declared a state of emergency and called in the National Guard in anticipate of protests when, as expect, the grand jury declines to indict.

But those moves together make violent conflict inevitable. Ferguson was defined, in part, by the way in which militarized police behaved like soldiers in a war zone and reacted to potentially peaceful assembly accordingly. How can it possibly go better if the solution is to bring in actual soldiers? Moreover, note the governor's logic--the possibility of people taking to the streets to protest against a perceived injustice, absent any indication that things will turn violent constitutes a state of emergency warranting immediate activation and placement of the state's military force.

The First Amendment at least purports to recognize public streets and sidewalks as places that "time immeorial" have been reserved for expression. But the governor seems to believe that the possibility of streets being used for that "time immemorial" purpose is, by its nature, a threat to public order.

Update: Here is another take on it. And to answer a commenter's question: There has to be a way to be prepared and to take precautions that does not involve treating the possibility of protest as an emergency that threatens civil society. This type of response is virtually guaranteed to produce violence: "We're in a state of emergency, you're on the street, we're going to move you off the street by force." And now we have either 1) protesters resisting, triggering violence or 2) protesters peacably leaving, but not being able to exercise their constitutional rights to peaceably assemble and speak. Surely there must be some middle ground.

Posted by Howard Wasserman on November 17, 2014 at 08:34 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (3)

Monday, November 10, 2014

Flag burning?

Is a flag-burning amendment on the Republican congressional agenda? I have not heard anyone talking about it, but recent history suggests it is inevitable. The last time the Republicans controlled both houses, in the 109th Congress (2005-07), a proposal passed the House and failed the Senate by one vote. [Ed: A proposal was introduced in one house or the other every Congress from the Gingrich Revolution until the Democrats regained control in 2009]. Republicans will hold around 244 seats in the House and 52 or 53 (depending on the Louisiana run-off) in the Senate. With likely defections from Democrats who do not want to vote against such an amendment, the numbers would seem to be there.

Is this something that Republicans are going to expend time and energy on? Is it likely to pass?

Posted by Howard Wasserman on November 10, 2014 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (2)

Friday, November 07, 2014

Greetings from Sixth Circuit Country

Greetings from Memphis!  I'm here today at the University of Memphis Cecil C. Humphreys School of Law to discuss Hobby Lobby alongside Steven Green, including what should be a fun Q&A session moderated by Steven Mulroy.  Steven Green is one of the authors of the Church-State scholars amicus brief in Hobby Lobby.  And I recently wrote up some of my--somewhat evolving--thoughts on Hobby Lobby in an article titled Religious Institutionalism, Implied Consent and the Value of Voluntarism, 88 S.Cal. L. Rev. (forthcoming 2015), where I elaborate on my theory of "implied consent" institutionalism.  

But given yesterday's Sixth Circuit decision on same-sex marraige, I'm thinking more and more about Paul Horwitz's recent piece in the Harvard Law Review, "The Hobby Lobby Moment" (if you haven't read it yet, you should).  I find myself very much in agreement with Paul's analysis, especially his articulation of how the firestorm around Hobby Lobby had so much to do with the intersection of same-sex marriage and our evolving views on the commercial marketplace.  If Paul is right, then yesterday's decision--and the significant likelihood that the decision will lead to the Supreme Court finally have to grant cert in a same-sex marriage case--means that we may very well see more of the debates that propelled Hobby Lobby into the public consciousness.

Posted by Michael Helfand on November 7, 2014 at 08:40 AM in Constitutional thoughts, First Amendment, Religion | Permalink | Comments (0)

Thursday, November 06, 2014

Here's your circuit split on marriage equality

A 2-1 decision from the Sixth Circuit, authored by Judge Sutton, with Judge Daughtrey in dissent. Media reports indicate the focus is on respecting the will of the voters and the state power to define marriage.

The Sixth Circuit remains majority Republican appointees (all by one of the Bushes), to the extent such crude measures tell us anything. So en banc seems unlikely, unless even Republican-appointed judges do not want to be on the wrong side of this. Still, it appears this is now teed-up for SCOTUS to resolve later this term.

Perhaps more later. Update: Well, the media reports are correct. Sutton's lengthy introduction, before the analysis: "And all come down to the same question: Who decides? Is this a matter that the National Constitution commits to resolution by the federal courts or leaves to the less expedient, but usually reliable, work of the state democratic processes?"

Sutton did make two cute rhetorical moves with Loving. First, he insisted that the Court assumed marriage only encompassed opposite-sex unions, since the Court did not say differently and because the couple in Loving where not same-sex. Second is this: "Loving addressed, and rightly corrected, an unconstitutional eligibility requirement for marriage; it did not create a new definition of marriage." But this seems too clever by a half--all definitions of a thing are based on eligibility requirements for the definition of that thing. Is Sutton really suggesting that Loving would have come out differently if, instead of the law saying "If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony," it said "marriage shall only be between two white persons or two black persons"?

Say this: Sutton hit every possible argument and issue surrounding marriage equality (although he soft-pedaled his discussion of the "marriage is for men and the women they accidentally knock-up" argument). So the opinion presents a good vehicle for thorough consideration (and reversal).

Finally, a question: Judge Daughtrey in her dissent described at length the facts underlying the claim by the Michigan plaintiffs. Under Michigan law, unmarried couples cannot jointly adopt, which means only one parent is the legal parent of the child and there is no guarantee that, if the legal parent dies, the child will be allowed to stay with the other, non-legal parent. But that imposes huge financial costs on the state, if it has to bring that child into the foster care system, not to mention the human and social cost to the child and the entire system. But if the ban on same-sex marriage imposes such costs, doesn't that render it irrational, if not based on animus?

 

Posted by Howard Wasserman on November 6, 2014 at 04:55 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Seeeking balance in uncontested elections

It seems I am not alone in my confusion and concern about states not placing unopposed candidates on the ballots, as this list of stories suggests (H/T: My colleague Tom Baker). In Oregon two years ago, people were angry about having to pay to print GOP primary ballots with only one name. And there was an interesting controversy in Indiana about three years ago. In 2010, the state passed a law removing unopposed candidates for municipal office from the ballot. In 2011, several local bodies insisted on printing ballots that included unopposed candidates, even though it then required that two additional polling places be opened, at public cost. In early 2012, a bill to repeal the 2010 law unanimously passed the state Senate, although I have not been able to find out what happened after that.

Weighing against those cost considerations include the risk of voter enthusiasm, the dampening of interest (and thus willingness to vote) of supporters of the unopposed candidate, and possible down-ballot effects. On the other hand, the cost-saving concerns disappear when the ballots also contain candidates for national and statewide office and all those polling places are open anyway. For example, Miami-Dade County had to print ballots containing all the statewide offices, plus US House candidates, for the other districts that are within the county (for example, Joe Garcia's district) and the polling places within the district had to be opened. Similarly, the polling places within my district were all open and people within my district had to have ballots with all those statewide offices. Would it have really cost that much more money to include the US House race on those ballots?

None of these is of constitutional magnitude, of course, just of policy wisdom.

Posted by Howard Wasserman on November 6, 2014 at 02:04 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Tuesday, November 04, 2014

Election law as contextual: a universal truth? (And, happy election day to U.S. readers!)

I am grateful to Dan Markel for this chance to spend another month in conversation at Prawfsblawg.  As with my last go-around, my focus is on U.S. election law.  This time, however, I get to talk about election laws on an election day. 

 When the voting and vote counting unfold, we’re bound to see election laws and administrative practices in the news.  Even if the odds-makers are proven correct in their forecast of an election day that is characterized by relatively low voter turn-out and relatively few close contests, there will be questions or controversies about the effects of heightened voter identification requirements, the counting of provisional ballots, the scheduling and ballot design for a gubernatorial run-off, and the like.  Those of us who follow politics have come to instinctively associate some of these contested laws and practices with a particular effect (a tendency to expand or narrow the electorate), and with a particular political valence (a tendency to disenfranchise or dilute the votes of one or another party or racial or socioeconomic group).  

Of course, election rules, such as the new voter identification requirements in Texas, will, at times have their strongest bite in the lives of individuals (see, e.g., Eric Kennie’s story at  http://www.theguardian.com/us-news/2014/oct/27/texas-vote-id-proof-certificate-minority-law). But politicos and scholars usually train their attention more on election rules as they might tip a contest for a particular candidate or party.  To be sure, different political camps tend to have different empirical and normative premises about election rules’ operations.  Voter i.d. requirements are about culling the poor, the disabled, and racial minorities from the electorate.  They are a procedural tool for disenfranchising eligible voters.  Or, no, these requirements are about screening out fraud and low-information voters.  They are about protecting the eligible and informed voters from vote dilution.  All sides, however, can instinctively agree on a rule’s expected effect and valence:  Strict voter i.d. rules contract rather than expand the electorate, and they can be expected to do so to the benefit of Republicans.

 I now want to take many steps back from the immediacy of these voter i.d. rules and today’s election.  (It’s not like you have any election results to follow!)  I want to consider whether perceived regularities in the consequences of elections laws (large and small) may hold true across many different contexts.  

 Political scientists (one of my tribes) have often assumed that the answer is “yes”, and they have precisely defined their scholarly enterprise to be a search for the generalizations that will not be context-bound.  The successes of this research program have been real.  We have learned that election rules can exhibit regularities, sometimes ones that operate behind the backs of the political actors.  A particularly successful example is Duverger’s Law which states that legislative elections by single-member-district and ‘first-past-the-post’ rules (such as in the U.S., Canada, and Great Britain) are correlated with two-party systems while proportional-representation rules are correlated with multiparty systems.  

 This generalization is powerfully universal.  Except when it isn’t.  Many times, political scientists have found the need to qualify it.  It fails to hold true in a country where there is no widely shared information or expectations about the different parties’ electoral prospects, or in a political culture where voters do not mind ‘wasting’ their votes on a third-party candidate who can’t win (Powell 2013).  It fails to hold true in a federal system at the national level if the national parties are really sectional parties (Chhibber and Kollman 2004.)  And so on.

 If even Duverger’s Law is highly context-bound, then we may suspect that there are few, if any, (non-trivial) regularities in the consequences of election rules that are not similarly context-bound.  And in fact, G. Bingham Powell has used this example to make a (to me) compelling case that the proper study of the scientific ‘laws’ of election law can’t be (or, at least, it can’t be restricted to) a search for big universals.  Even when generalizations are prized over local knowledge, election laws need to be studied closer to the ground in order to unearth the local and temporal conditions that may limit an otherwise robust pattern, or that may set in motion a new one.  

 Duverger himself recognized that the consequences of election rules are mediated by context, and he classified some of these contextual factors as (1) “the mechanical” (the interaction between votes and election rules if the latter are properly administered—conditions that may depend on the strength of a country’s tradition of rule of law and technical competence)  and (2) “the strategic” (the effects of citizen or elite anticipations of these mechanical operations).  

 We might think about recent voter identification laws in a similar fashion:  Under current conditions, heightened documentation requirements can be expected, at least at the margins, to disproportionately shave the vote totals for some Democratic-leaning constituencies.  This effect may seem almost mechanical.  Yet, as we have apparently witnessed in recent years, some election reforms that raise the costs of voting for particular classes of voters (such as proof of citizenship requirements, or cut-backs in early voting days like ‘Souls to the Polls”) can occasionally result in an increase in the vote totals through the mechanism of ‘backlash’ mobilization against the reality or perception that the reform was an intentional form of disenfranchisement.  (On such backlash, see, e.g., Rick Hasen’s Voting Wars).  My (perhaps, not so social-scientific) spin on this example:  human agency and innovation matter.

 Powell offers his insights about the contextual nature of election law for the sake of a positive research program into election laws’ consequences.  I, however, want to use these insights to conclude with two simple points that are more normative in nature.  

 First, as citizens or election reformers, the contextual nature of election rules means that we should be wary of categorical judgments about particular election rules.  Changes in the environment, human behavior, or the law's internal design may flip expected realities.  (Just as, at one time, the secret ballot served to free humble tenant voters from the pressure of their landlords, so at another time and place, it worked to disenfranchise the humble illiterate…)  Voter documentation requirements, for example—if they are the responsibility of government, and not voters themselves—may have an entirely different effect and valence than what we’ve come to expect in the U.S.  

 To judge from the experience in some countries at least, it seems possible that voter documentation can operate to expand, not contract, the electorate, and that it can operate without benefit to a particular party (other than the ‘partisan’ benefit that is likely to accrue from fully documenting an eligible electorate).  If this is right, then—yes, of course—government-controlled voter i.d. will run into other objections (such as those of the civil libertarians worried about runaway uses of national i.d.).  But the point stands that our political (politicized?) instincts about the natural effect and valence of voter id would no longer hold.

 Second, if the consequences of most or all election rules are highly context-bound—meaning that an election law that is benign in one context can be malign in the next—then the quality of our processes and institutions for evaluating and changing election rules may be far more important than the static quality of any particular election rule.  I’ll say more about this latter point at another time.

 Now back to the immediacy of election results and (perhaps) election administration debacles.

 Sources:

 Pradeep Chhibber and Ken Kollman, The Formation of National Party Systems: Federalism and Party Competition in Canada, Great Britain, India, and the United States. Princeton: Princeton University Press, 2004.

 Maurice Duverger, Political Parties: Their Organization and Activity in the Modern State. New York: John Wiley, 1954.

 Richard L. Hasen, The Voting Wars: From Florida 2000 to the Next Election Meltdown. New Haven: Yale, 2012.

 G. Bingham Powell, Jr., “Representation in Context: Election Laws and Ideological Congruence Between Citizens and  Governments,” Perspectives on Politics, Vol. 11/No. 1, March 2013.

Posted by Kirsten Nussbaumer on November 4, 2014 at 04:22 PM in Constitutional thoughts, Law and Politics, Legal Theory | Permalink | Comments (0)

Sunday, November 02, 2014

Executive Power Restrained -- the South African Experience, and Thanks

Given the recent dialogue here about executive power, but on a very different sub-topic, I thought it would be worth mentioning that the South African Constitutional Court has issued several decisions that have used strong judicial review to limit executive power in situations where corruption may be involved.  The rulings are extraordinary from an American perspective.  In the first case, Glenister II (2011), the Court actually invalidated the existence of a new national anti-corruption prosecutorial entity, as being insufficiently independent to satisfy general constitutional requirements of promoting democracy, fighting corruption, etc.  The Court also controversially relied on international anti-corruption conventions.  One reason the Court was skeptical of the new entity was that the African National Congress dominated government had effectively disbanded a more aggressive and powerful national anti-corruption entity in troubling circumstances, so the Court was finding the replacement body to be insufficient. In another case, Democratic Alliance v. President of the Republic (2012), the Court invalidated President Jacob Zuma's selection of a national prosecuting authority, a Mr. Simelane, based on allegations that Simelane had demonstrable integrity problems, and based on the President allegedly not paying heed to these problems.  I have authored a short article on these cases and a few others that can be found here.  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2476649  In the U.S., there would have been standing and political question problems in both situations so these are bold decisions.

I mention these decisions in part to show how national high courts do not always have to be overly deferential to executive power assertions even in delicate situations.  On a final note, thanks to the folks at Prawfs Blawg for letting me participate again.  Also, special thanks to Ilya Somin for the interesting Korematsu debate.  For those who want another perspective on our debate, take a look at Professor Eric Muller's post on the question (he is certainly a preeminent Korematsu-Hirabayashi expert).  http://www.thefacultylounge.org/2014/11/the-kende-somin-debate-on-justice-thomas-and-korematsu-and-hirabayashi.html  And God bless Dan Markel, his family, and friends. 

 

Posted by Mark kende on November 2, 2014 at 02:56 PM in Constitutional thoughts | Permalink | Comments (1)

Friday, October 31, 2014

Popular votes

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States. But I just cast a ballot in Florida that did not have a slot for U.S. House on it. The representative for my district is Ileana Ros-Lehtinen, who ran unopposed with no pre-qualified possible write-in candidates. Under Florida Statutes § 101.151(b)(7), "[e]xcept for justices or judges seeking retention, the names of unopposed candidates shall not appear on the general election ballot. Each unopposed candidate shall be deemed to have voted for himself or herself."

Administratively, this makes sense, I suppose. Why print hundreds of thousands of ballots when it is only going to take one ballot to elect the candidate? And the states do control the time, place, and manner of holding House elections, so Florida can pursue such administrative choices and conveniences when the outcome is determined. Nevertheless, there seems something odd about the state essentially declaring as the winner of a popular election someone who never actually stood before her constituency for consideration at the relevant moment, which is when they are casting ballots. It also strips voters (inclduing me, I will confess) of the opportunity to use the ballot for expressive purposes, perhaps by leaving that space blank. While leaving the spot blank means I still would not have cast a vote in this contest, it would have been my choice not to cast that vote, not the state's.* And if other people did the same thing, there might be meaning to the difference between the votes Ros-Lehtinen received and the total votes cast by people in this district.

* I recognize, of course, that the Supreme Court has made clear that ballots are not intended to serve expressive purposes.

Finally, I presume that, while Florida is a strange place with strange laws, it is not alone in this practice.

Posted by Howard Wasserman on October 31, 2014 at 03:01 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Thursday, October 30, 2014

A Mistake Regarding Korematsu

Thanks to Ilya Somin for his additional comments in our "debate" about whether Justice Thomas's jurisprudence would support Korematsu.   Respectfully though, Ilya is factually incorrect in saying neither Mr. Korematsu nor other interned Japanese-Americans were convicted of any crimes.  Here is what Ilya wrote:

"But, as I noted in my earlier post, the camps were not legally equivalent to prisons because the Japanese-Americans interned in them had never been convicted of any crime, or even charged with one. Thus, they are not covered by various precedents holding that convicted criminals incarcerated for their crimes have much weaker constitutional rights than ordinary citizens. As I also pointed out, this distinction is likely the reason why Justice Scalia joined Thomas’ dissent in Johnson, but also opposes the Korematsu decision."   http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/24/more-on-clarence-thomas-and-korematsu/

Actually, Korematsu was convicted of a crime as were other Japanese-Americans in the camps.  http://korematsuinstitute.org/institute/aboutfred/  Thus by Ilya's logic, Justice Thomas's view that prisoners have reduced rights, say to due process or colorblindness, would apply. These were clearly wartime prison camps with some unfairly convicted people there, including those thought to be disloyal. There is lots of literature on these camps confirming this. More generally, I think Ilya downplays the situation in these camps, by augmenting the rights of people there, though I know Ilya opposes the Korematsu decision and I know Ilya writes in good faith.

Second Ilya continues to defend Justice Thomas by saying Hamdi was an enemy combatant, unlike Korematsu.  But Justice Thomas's almost plenary authority language about executive power in wartime, and his stated aversion to judicial involvement, are inconsistent with limiting his view just to combatants.  In other words, Ilya makes a nice lawyerly distinction that does not make a difference in the analysis.  I have previously quoted some of Justice Thomas's language in Hamdi, and its breadth is stunning.  http://prawfsblawg.blogs.com/prawfsblawg/2014/10/justice-clarence-thomas-and-korematsu-the-sequel.html#more  Presumably this is one reason why he was alone in dissent.  Moreover, though not an enemy combatant, Fred Korematsu would have been a convicted wartime prisoner to Thomas as just mentioned.

Third high level American military authorities justified their discriminatory imprisonment of Japanese-Americans based in part on the risks of a supposed west coast invasion.  These were not just state or local prison officials. Thomas would have likely seen that danger (given who predicted it) as greater than, for example, the likely danger of an east coast Al Qaeda invasion of the same scope (which was never predicted).  Al Qaeda was, and is, horrific and enaged in an abominable attack, but Al Qaeda was not thought of as an invasion danger of the World War II scope.  That 's why I believe Justice Thomas would have been even more deferential to the government in World War II.

In my earlier post, I agreed with Ilya that Justice Thomas is “usually among the justices least willing to suppress his own views for the sake of consensus."  But my response was not limited to a consensus situation.  Thomas often writes openly about his disagreement with precedent or with other commonly held views.  I think of Thomas's view that the Establishment Clause is not "incorporated" which he has written about.  Thomas showed no written reticence, however, in describing the Korematsu facts either in Fisher or Grutter. 

But my bottom line in this post is that Fred Korematsu was convicted, a prisoner, and would have had almost no rights in the Thomas view of wartime or prisoners.

 

Posted by Mark kende on October 30, 2014 at 02:49 PM in Constitutional thoughts | Permalink | Comments (3)

Monday, October 27, 2014

State Courts Choosing to Follow Federal Precedents

Following up on his appearance on the Oral Argument podcast, Michael Dorf has a fascinating post up this morning at "Dorf on Law" in which he tackles the intriguing question of whether state courts may choose to "gratuitously" be bound by federal precedents that don't actually bind them under the Supremacy Clause. Michael argues that the answer is no:

One might think that, just as a state high court can voluntarily decide whether to construe its constitutional provisions in "lockstep" with the parallel provisions of the federal Constitution or to give greater protection to rights as a matter of state law, so too here, a state can decide to be "more bound" by federal law than is strictly required. But the analogy doesn't hold. A state high court that gratuitously decides to accept (or to go beyond) federal definitions of its state law terms is making a decision about how to understand state law. By contrast, a state court that gratuitously accepts lower federal court rulings on the meaning of federal law is deciding how to determine federal law. As to that process, federal principles control.

Respectfully, I disagree--both as a matter of doctrine and principle. Below the fold, I take up both grounds of disagreement:

I.  Doctrine

Doctrinally, the closest (and most recent) case on point is the Supreme Court's 2008 decision in Danforth v. Minnesota. Danforth was a case about the ability of prisoners to retroactively invoke "new" Supreme Court decisions that were handed down after their direct criminal appeal became final. The Supreme Court has erected a very high bar to when such "new" rules can be retroactively enforced via federal habeas petitions, and the Court had already held that its 2004 Confrontation Clause ruling in Crawford v. Washington was not retroactively enforceable in federal habeas petitions. 

But Danforth held that state courts are free, as a matter of state law, to give retroactive effect to new Supreme Court decisions like Crawford in state collateral post-conviction proceedings. In other words, if one accepts that the Supreme Court's interpretation of a constitutional provision is itself federal law, Danforth holds that state courts can choose whether or not federal law (Crawford) that wouldn't be binding in a federal post-conviction proceeding can nevertheless be binding in a state post-conviction proceeding. (That this is what Danforth necessarily allows is made quite clear by Chief Justice Roberts' rather sharp dissent.)

At least as a matter of current doctrine, then, there's at least some support for the notion that state courts can, indeed, choose whether and under what circumstances they will be bound by federal precedents that wouldn't otherwise be binding. Michael may well believe that Danforth is wrongly decided. But if it isn't, it seems difficult to square with his conclusion that " a state court that gratuitously accepts lower federal court rulings on the meaning of federal law is deciding how to determine federal law. As to that process, federal principles control."

II.  Policy

Separate from Danforth, I have to say that this result makes sense to me. If state courts are the authoritative expositors of state law, and they choose, as a matter of state procedural law, to be bound by a federal precedent that isn't otherwise binding as a matter of federal law, I don't see how that raises any kind of federal constitutional concern under the Supremacy Clause.

It may be silly (or wrong) as a matter of state law, but it seems to me that that's up to the relevant state (whether through its legislature or court of last resort) to decide. Of course, by dint of the structure of appellate jurisdiction, state courts are usually bound as a matter of federal law by the Supreme Court's interpretations of federal law--but Danforth is a rare example of a case in which that's not true. And state courts are never bound as a matter of federal law by the lower federal courts' interpretations of federal law. And so it should follow that the same logic applies to decisions of lower federal courts interpreting federal laws--that a state can choose to be bound by that decision as a matter of state law, and that nothing in federal law (including the Constitution) either requires them to so choose, or prevents them from doing so.

Posted by Steve Vladeck on October 27, 2014 at 09:41 AM in Constitutional thoughts, Steve Vladeck | Permalink | Comments (1)

Should Apprendi Apply to Substantive Reasonableness Review?

A couple weeks ago, the Supreme Court narrowly denied cert in Jones v. United States, which raised an important Sixth Amendment sentencing question—namely, whether it is constitutional for judge-found facts to render a defendant’s sentence substantively reasonable. (Here's some coverage from Doug Berman on Sentencing Law and Policy and more from Will Baude at the Volokh Conspiracy.) Dissenting from the Court's denial of cert, Justice Scalia suggested that substantive reasonableness review raises fatal constitutional problems under cases like Apprendi v. New Jersey. But I’m not so sure.

Under Apprendi and related cases, the Sixth Amendment requires that juries (not judges) find all facts that increase defendants’ sentences (either the maximum or the minimum). Imagine, for example, that theft has a sentencing range of 0-10 and theft using a firearm has a range of 0-15. If a defendant is convicted of theft, can a judge find that the defendant used a firearm and impose 15? No. In Booker and related cases, the Court extended this principle to sentencing guidelines. So imagine that theft has a range of 0-15, but sentencing guidelines dictate a punishment of 10 unless the defendant used a firearm. The sentencing guideline would then operate just like the theft statute in the first example. It would set a ceiling that could be exceeded only if a judge found a fact—namely, that the defendant used a firearm. The solution adopted in Booker was to make the guidelines advisory, so that the Sixth Amendment ceiling in the last hypo would be set by the mandatory 0-15 statute, not by the advisory guideline. So far, so good.

The new frontier in this area has to do with reasonableness review. After Booker, the guidelines are advisory, but federal courts of appeals still review sentences for procedural and substantive reasonableness. In Rita v. United States, the Court gave some guidance about how to conduct this review, and Justice Scalia drafted an insightful concurrence that foresaw a problem to come. Scalia’s concern was that, as appellate courts established a jurisprudence of substantive reasonableness, the result would be a set of effective sentencing maxima. To adapt the earlier example, imagine that the statutory sentencing range for theft is 0-15 and that a court of appeals finds that a sentence of more than 10 is reasonable only if accompanied by a factual finding that the defendant used a firearm. The upshot would be that a sentence of 10 would have become the maximum possible sentence without any judicially found facts. Sentences over that amount would then violate the Sixth Amendment, even if a judge found that the defendant used a firearm.

The Court just denied cert in the first strong vehicle for review of this question, with Justice Scalia and two of his colleagues, Justices Thomas and Ginsburg, dissenting. (The fact that Justice Ginsburg joined the dissent is especially noteworthy, because she was the swing vote in favor of the Booker remedy and so is largely responsible for the current doctrine of substantive reasonableness review.) The constitutionality of post-Booker substantive reasonableness review is definitely an important question that the Court should eventually resolve. But I’m not so sure that the Court should extend Booker and find a violation in this context. My hesitancy stems from important functional differences between: (i) mandatory sentencing guidelines that are promulgated by legislatures or agencies and (ii) judicial precedents on substantive reasonableness review.

Consider the once-mandatory federal sentencing guidelines that prevailed before Booker. Under that system, Congress both enacted criminal statutes and exerted control over the U.S. Sentencing Commission that promulgated the guidelines. Because it had control over both statutory sentencing ranges and guidelines ranges, Congress could exert mandatory control over criminal punishments—at juries’ expense—by raising statutory maximums and then instructing the Commission to require additional judicial fact-finding pursuant to mandatory sentencing rules.  Clearly, Booker hasn’t prevented Congress from engaging in this behavior or from otherwise shifting fact-finding responsibilities away from juries and toward judges. Indeed, the Booker remedy—finding the guidelines advisory—was widely criticized for paradoxically empowering judges, not the juries actually mentioned in the Sixth Amendment. These critics had a point: How can Booker promote the right to jury trial, when it had no direct effect on jury fact-finding?

One possible answer is that Booker indirectly promoted jury fact-finding by reshaping long-term legislative incentives. After Booker, Congress can no longer increase its own control over sentencing outcomes by shifting fact-finding responsibility toward judges operating under mandatory guidelines. The mandatory guidelines, after all, are now unconstitutional. Instead, Congress can shift fact-finding away from juries and toward the sentencing phase only by empowering judges operating without mandatory guidelines. Put another way, Booker holds that the only way for Congress to establish mandatory sentencing rules is to shift fact-finding responsibility toward the trial, where juries find facts. Congress’s desire to control mandatory sentencing rules thus reinforces, and no longer undermines, its willingness to promote jury fact-finding. Booker might therefore be compared with other constitutional doctrines that (as Matthew Stephenson put it) “raise the costs to government decision-makers of enacting constitutionally problematic policies, rather than attempting to designate certain government actions, or categories of government actions, as permissible or impermissible.”

This functional argument suggests that the Apprendi rule most forcefully applies to sentencing rules created by legislatures and agencies, and not to sentencing rules that are crafted by independent federal judges. The temptation to circumvent the jury arises when the same entity (or coordinated pair of entities) has control over both statutory sentencing ranges and mandatory sentencing rules. Congress had both types of control before Booker. But Congress can’t count on federal judges to impose the mandatory sentencing rules that Congress itself desires. Unlike the Sentencing Commission, the federal courts are independent of the political branches. And while Booker reasonableness review represents a gloss on a federal statute, the statutory gloss facilitates judicial discretion rather than curbing it. So if Congress legislates higher statutory sentencing ranges and writes up new guidelines, the federal courts are free to accept or reject those advisory results. Unless federal courts of appeals predictably fashion reasonableness rules in the manner that Congress desires, the legislature’s desire for mandatory sentencing rules would cut in favor of jury fact-finding, even if substantive reasonableness review flourished.

Admittedly, this last point places a lot of weight on federal judges' willingness to deviate from the advisory guidelines in ways that will frustrate Congress. And while evidence on post-Booker sentencing is mixed and complex, it's fair to say that the guidelines, while frequently set aside, are still taken seriously. To the extent that the guidelines are advisory-in-name-but-followed-in-fact, Congress still has some reason to circumvent the jury by shifting fact-finding to the sentencing phase. But the more direct solution to that problem would be to make clearer that sentencing courts can and often should deviate from the guidelines. What the independent judiciary does, after all, is within its own control. This is why Scalia's Rita concurrence was wrong to worry that "this Court could prescribe that the only reasonable sentences are those consistent with the same mandatory Guidelines that Booker invalidated." Instead of blatantly deferring to Congress in that way, the Court can easily move in the opposite direction. For example, it could partially overrule Rita and prohibit the circuit courts from presuming that in-guideline sentences are reasonable. Given this and other potential solutions, it seems an overreaction to cure any residual form of legislative influence by taking Justice Scalia's advice and declaring each district court judge the final word on the substantive reasonableness of sentencing--a result that raises serious uniformity and fairness concerns.

Of course, the Supreme Court hasn’t quite articulated the functional argument outlined above, which is subject to a lot of questions and potential objections. Of particular note, any attempt to view Booker as directed specifically toward legislative incentives would have to address the history of the Sixth Amendment and how it bears on this question, particularly because the Court’s recent jurisprudence in this area has been so extensively grounded in originalism. But that will have to be a topic for another day.

The above is cross-posted from Re's Judicata.

Posted by Richard M. Re on October 27, 2014 at 12:33 AM in Constitutional thoughts | Permalink | Comments (6)

Thursday, October 23, 2014

Justice Clarence Thomas and Korematsu: The Sequel

I blogged here on October 15, about an article of mine that was published this year in the Harvard Journal of Racial & Ethnic Justice titled “Justice Clarence Thomas’s Korematsu Problem.”  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2456868 .   Legal scholar Ilya Somin at the Volokh Conspiracy has authored an interesting and lengthy post critiquing parts of the article.  http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/20/does-justice-thomas-endorse-the-supreme-courts-notorious-decision-inkorematsu-v-united-states/    Respectfully, I think Ilya is wrong.

First, Ilya and I actually agree on several things.  We agree that Justice Thomas was wrong in his Hamdi dissent because Thomas granted excessive power to the President during wartime.  Even Justice Scalia, contre Thomas, acknowledged that a U.S. citizen could not be held virtually incommunicado, without formal charges, and interrogated indefinitely, whether the person was an enemy combatant or not. 

Yet Justice Thomas in Hamdi wrote that:  “The Court has long recognized these features and has accordingly held that the President has constitutional authority to protect the national security and this authority carries with it broad discretion.”  Thomas also writes earlier that, “The Founders intended that the President have primary responsibility – along with the necessary power – to protect national security and to conduct the nation’s foreign relations.”  Further Thomas quotes from another case where the Supreme Court says that, “"We have repeatedly held that the Government's regulatory interest in community safety can, in appropriate circumstances, outweigh an individual's liberty interest. For example, in times of war or insurrection, when society's interest is at its peak, the Government may detain individuals whom the Government believes to be dangerous."  Thomas also touts the advantage of the “unitary executive” and the executive’s role as the “sole organ” and “single hand” in such matters.  I want to add that the decision was 8-1 with Thomas the lone dissenter taking this extraordinary position.  He is way out on a limb in finding this U.S. citizen has virtually no rights.  And it’s important to note that Justice Thomas was wrong even though Hamdi was labeled an enemy combatant.  Thomas also indicates that he believe courts should hesitate to intervene in such decisions.  All of these views are consistent with Korematsu.

Second, Ilya and I agree that Justice Thomas’ dissent in Johnson v. California is inconsistent with the Thomas view that the government must be color-blind.  Justice Thomas said that California could racially segregate prisoners at intake for security reasons.  Again as in Korematsu, for Thomas, security concerns trump color-blindness. 

Where Ilya and I part ways is on what inference can be drawn from these decisions, and from other statements that Justice Thomas has made.  I think Justice Thomas’s statements on executive power during wartime are consistent with the Korematsu decision, in that his easy acceptance of asserted national security concerns (his Hamdi dissent), and his judicial caution when security is at stake, trump his normally passionate commitment to color-blindness (his Johnson dissent).  Ilya think this is a stretch for several reasons.

Ilya initially has a dilemma because in the Fisher v. Texas affirmative action, Justice Thomas cites to Korematsu as supporting the forcible relocation of Japanese-Americans on the west coast even under strict scrutiny.  Thomas in Fisher said that Korematsu found the internment “had a definite and close relationship to the prevention of espionage and sabotage.”  But Ilya then says that Justice Thomas is only “summarizing” Korematsu without necessarily approving it (despite Thomas’s recitation of the facts).  This is odd.  For example, at the end of his essay Ilya says that Justice Thomas is “usually among the justices least willing to suppress his own views for the sake of consensus.”  By that logic, one would suspect Justice Thomas cited Korematsu approvingly in Fisher.  Thomas could have cited other cases.  The citation by Thomas is even more troubling because, as Ilya admits, the Court in Korematsu did not really use strict scrutiny.    

Second, Ilya says that Hamdi is distinguishable from Korematsu because the President declared Hamdi to be an enemy combatant whereas the “Japanese Americans interned during World War II were not in prison, and had never been convicted of any crime or even charged with one.”  Respectfully, I think Ilya has it backwards.  The alleged grave national security concerns asserted by American military leaders and by the President regarding Japanese-American loyalty on the west coast, and regarding the supposed danger of invasion, would have likely created far greater national security worries for Justice Thomas than a single enemy combatant.  Moreover, Thomas’s views in Johnson show his deference to allowing prison officials to take race into account, yet how can one suggest the Japanese-American internment camps were not the essential equivalent of prisons. 

Third, Justice Thomas curiously omits mentioning Korematsu in Hamdi despite Korematsu’s obvious relevance, though Justice Thomas cites other World War II cases favoring executive power.  This raises the question of what is to be gained by the omission.  One answer is that Justice Thomas can avoid stating his view of the case.  Fourth, Ilya indicates one of his objections to Korematsu is that the government provided false information.  I agree with him here.  Yet Justice Thomas has apparently never written a sentence (despite numerous chances) expressing this concern about Korematsu, and Thomas also ignored the possibility that the government lied about Hamdi’s supposed dangerousness since Hamdi was released so quickly.  Thomas’s Hamdan dissent for example says nothing of the Hamdi release.  Once again, a la Korematsu, Justice Thomas does not generally question military decision-making.   

Ilya correctly points out that John Yoo has criticized Korematsu.  That’s a good thing.  It would be great if Justice Thomas did the same, but Justice Thomas instead continues to treat the case like standard equal protection material.  Overall, the evidence shows that Justice Thomas’s wartime, and security focused, jurisprudence is well in line with the majority’s approach in Korematsu.  

 

Posted by Mark kende on October 23, 2014 at 07:10 PM in Constitutional thoughts | Permalink | Comments (1)

Monday, October 20, 2014

Misunderstanding Rule 11

Via Slate, the lame-duck attorney general of Arizona cited FRCP 11 sanctions as a basis for no longer defending (or appealing, although that would be covered by FRAP 38) same-sex marriage bans. The argument, it seems, is that defending the bans (or appealing) would be seen as imposing unnecessary delay or expense or as a frivolous argument not warranted by existing law. Mark Stern at Slate and Josh Blackman both see this more as a political move. I want to suggest it must be, because the argument is wrong legally.

First, FRCP 11(b)(1) only prohibits actions done for the purpose of causing delay or expense. It is surely a legitimate purpose for government to obtain a definitive and binding Supreme Court ruling on an issue of constitutional import.

Second, since SCOTUS has not spoken on the issue, it cannot be said that Arizona's constitutional arguments, even if a clear loser in the Ninth Circuit, are frivolous before SCOTUS. As Josh points out, neither SCOTUS's undoing of stays or cert. denials are binding precedent. And the state always can pose an argument for "modifying, or reversing existing law," perhaps by seeking en banc Ninth Circuit review. Or the state can skip unfriendly Ninth Circuit law by seeking cert before the court of appeals judgment. But any of those options requires that the state first defend and appeal to the Ninth Circuit. Surely FRCP 11 cannot be read to cut-off such litigation strategies.

Finally, let's be serious. When was the last time the government was sanctioned for defending the constitutional validity of one of its laws?

Posted by Howard Wasserman on October 20, 2014 at 06:07 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (3)

Friday, October 17, 2014

Giving reasons

Richard's post on the problems created in Dart Cherokee by the court of appeals failure to explain its reasoning and Gerard Magliocca's CoOp post on recent examples of SCOTUS issuing procedural orders affecting constitutional litigation without explanation share a common theme--to what extent do courts, particularly reviewing courts, have an obligation to explain themselves. That obligation might be to reviewing courts, lower courts, current litigants, future litigants, or the public at large.

The problem is that the desire to provide explanation potentially butts against case-management concerns and the difficulty (if not impossibility) of providing reasoned explanations for every decision, including procedural decisions such as declination of discretionary review (the issue in Dart), cert. denials, and stays (or releases of stays) pending review. Courts do not have the time or resources to provide full-on reasons for every decision, particularly where reasons require consensus on a multi-member court. Then we have to figure out whether less-than-complete reasoning is better or worse than no reasoning at all. And we potentially fall back into the debates of the late '90s and early '00s about non-precedential opinions and the problems they create.

Importantly, neither Richard nor Gerard argues that courts should do this in every case, but only special cases--where failing to explain wuld effectively insulate a decision from review or the issues are signficant enough that special guidance is needed. I would reiterate that the decisions prompting the discussion involve particular procedural concerns rather than the ultimate merits.

Posted by Howard Wasserman on October 17, 2014 at 11:48 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (2)

Wednesday, October 15, 2014

Justice Clarence Thomas and Korematsu

Recently, there was a discussion on the lawcourt listserv about the worst U.S. Supreme Court decisions ever.  On a related note, this past summer, my short article titled "Justice Clarence Thomas's Korematsu Problem" was published in the Harvard Journal of Racial & Ethnic Justice, and posted on SSRN.  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2456868   Ironically, the issue of whether the Court should formally repudiate Korematsu was also raised in a separate cert. petition during the period I worked on the piece.  Further, Ilya Somin had a post or two on the issue of repudiation, if I recall correctly.  Looking back on the article, I confess that I'm still stunned that Justice Thomas's view of war related executive power, as taken from his judicial opinions, would seem to support Korematsu.  The abstract is below.  Contrary thoughts or arguments are welcome.  Or perhaps I should not be stunned.

ABSTRACT

The U.S. Supreme Court's infamous decision in Korematsu v. United States, 323 U.S. 214 (1944) has been in the news recently as some scholars and advocates, such as Peter Irons, have asked the Court to formally repudiate the decision.  This essay breaks new ground by demonstrating that Justice Clarence Thomas’s jurisprudence on executive power is consistent with that case.  Two cases provide the major evidence.  First, Justice Thomas was the lone dissenter in Hamdi v. Rumsfeld, 542 U.S. 507 (2004) where he reasoned that enemy combatants who were U.S. citizens have virtually no due process rights. 

Moreover, in Johnson v. California, 543 U.S. 499 (2005), he dissented and supported the California prison system’s practice of racially segregating inmates during the intake process.  California argued this minimized racial violence.  Thomas therefore abandoned his well-known position of racial color-blindness in the case.  The juxtaposition of these opinions shows that he would have placed weak national security concerns ahead of strong evidence of racial bias as in Korematsu.  The essay also addresses several counter-arguments.  While Justice Thomas is a well-known supporter of very strong Presidential power, this essay demonstrates that his position is more extreme than might have been thought.

Posted by Mark kende on October 15, 2014 at 04:39 PM in Article Spotlight, Constitutional thoughts | Permalink | Comments (7)

Ebola, Epidemics, and Federalism

The Ebola epidemic has made emergency public health measures a subject of global importance. Within the US, attention has focused on federal efforts to monitor potentially contagious persons entering the country, and on both state and federal efforts to curb the spread of infection. (Paul Rosenzweig’s post over at Lawfare is a good example.) Clearly, the end of this humanitarian crisis will turn on medicine and public policy. But there is also a set of constitutional doctrines relevant here. In recent years, public health problems have played a significant role in thought experiments regarding the scope of state and federal power. Some of these scenarios don’t seem quite so hypothetical anymore.

1. State Quarantines: The “Dormant” or Impliedly Preemptive Commerce Clause and Interstate Travel

What if State A wants to shut out persons or goods from State B on the ground that they might be contaminated with a public health hazard? This seems like regulation of interstate commerce, which Article I of the Constitution places within the control of Congress. Clearly, then, Congress could pass legislation on this point. It’s possible, however, that Congress hasn’t enacted or never enacts relevant legislation. Under the “dormant” Commerce Clause doctrine, state law on matters of interstate commerce can be impliedly preempted even if there is no relevant federal legislation.

In Chemical Waste Management v. Hunt (1992), the Court discussed its line of “quarantine cases," block quoting the following nineteenth century statement:

In the exercise of its police powers, a State may exclude from its territory, or prohibit the sale therein of any articles which, in its judgment, fairly exercised, are prejudicial to the health or which would endanger the lives or property of its people. But if the State, under the guise of exerting its police powers, should make such exclusion or prohibition applicable solely to articles, of that kind, that may be produced or manufactured in other States, the courts would find no difficulty in holding such legislation to be in conflict with the Constitution of the United States.

In other words, bona fide quarantines are permissible, even though states can’t normally discriminate against goods from other states. An analogous distinction might apply in connection with persons and the constitutional right to interstate travel discussed in Saenz v. Roe (1999).

2. Federal Quarantines: The Necessary and Proper Clause and Commerce Clause

Does the federal government have the power to establish quarantines? This issue came up during the oral argument in the 2010 case United States v. Comstock. The question presented was whether the federal government had authority to civilly commit certain offenders after they had completed their federal prison sentences. The government argued that this power existed in light of the public danger that the offenders posed. The relevant constitutional authority stemmed from the Necessary and Proper Clause, in conjunction with whatever separate authority authorized the federal prison sentence in the first place. During the oral argument, then-Solicitor General Elena Kagan analogized the federal law to a quarantine. Here is the key exchange:

GENERAL KAGAN: ... I will give you an example, Justice Scalia. I mean, suppose that there was some very contagious form of drug-resistant tuberculosis that had -- had become prevalent in the prison system, and States were not able to deal with that, with quarantining these people upon their release date. And Congress said: You know, the best thing to do is to have the Federal Government act as the appropriate quarantining authority because we don't think that States are able to step up and deal with this problem. Would anybody say that the Federal Government would not have Article I power to effect that kind of public safety measure? And the exact same thing is true here. This is exactly what Congress is doing here, is to make sure that mentally ill, sexually dangerous --

JUSTICE KENNEDY: When I was thinking about your hypothetical I thought, well, that's a pretty easy commerce power argument. I — I notice that in — in the government’s position you don’t argue the Commerce Clause very much, and I — we have got at Morrison v. Bronkalla looking at you and Printz, and so forth. … But suppose Congress said: There is a class of committable, dangerous sex offenders that are crossing State lines and using interstate facilities, and made those findings. Would that be sufficient to establish a Federal commitment law?

In this exchange, Justice Kennedy seems to view the quarantine hypothetical as too easy for the government and as possibly beside the point, given that the government wasn’t relying directly or exclusively on the Commerce Clause. However, it's not entirely clear whether Justice Kennedy was talking about a quarantine within a state (which might have to rely on a combination of the Commerce Clause and the Necessary and Proper Clause) or simply a quarantine at a state border (which would be a relatively straightforward regulation of interstate commerce). Justice Kagan's hypothetical seemed designed to capture both scenarios.

Comstock ultimately upheld the federal commitment law by a 7-2 vote, with several members of the majority writing separately. Per Justice Breyer, the majority based its decision on a multi-factor analysis. Factor #3 raised the quarantine point:

If a federal prisoner is infected with a communicable disease that threatens others, surely it would be "necessary and proper" for the Federal Government to take action, pursuant to its role as federal custodian, to refuse (at least until the threat diminishes) to release that individual among the general public, where he might infect others (even if not threatening an interstate epidemic, cf. Art. I, § 8, cl. 3). And if confinement of such an individual is a "necessary and proper" thing to do, then how could it not be similarly "necessary and proper" to confine an individual whose mental illness threatens others to the same degree?

This passage appears to approve of federal efforts under the Necessary and Proper Clause to contain epidemics "even" without a threatened "interstate epidemic." For that reason, the passage suggests that the federal government has a great deal of flexibility in establishing quarantine measures, even apart from emergencies and far from state and federal borders. Still, this point is arguably dicta and arose in the context of the release of federal prisoners. So the passage doesn’t necessarily approve of all possible federal health measures.

3. Federal Inoculation Programs: The Necessary and Proper Clause, Commerce Clause, and Anti-Commandeering

Can the federal government go beyond quarantine measures, such as by requiring people to be inoculated against a plague? This “inoculation mandate” hypothetical prominently arose in connection with NFIB v. Sebelius, the 2012 challenge to the Affordable Care Act. The relevant question presented was whether the federal government had authority under the Commerce Clause and Necessary and Proper Clause to require private persons to purchase health insurance or pay a penalty. (The Court would ultimately sustain the law by construing the penalty as a tax for constitutional purposes.)

At oral argument, Justice Breyer tried to test the limits of the challengers’ theory—and, more to the point, the limits that the challengers would impose on the federal government. The resulting exchange prominently involved the 2000 case United States v. Morrison, where the Court narrowly struck down part of the Violence Against Women Act for exceeding federal legislative power.

JUSTICE BREYER: I'm just picking on something. I'd like to just -- if it turned out there was some terrible epidemic sweeping the United States, and we couldn't say that more than 40 or 50 percent -- I can make the number as high as I want -- but the -- the -- you'd say the Federal Government doesn't have the power to get people inoculated, to require them to be inoculated, because that's just statistical.

CARVIN: Well, in all candor, I think Morrison must have decided that issue, right? Because people who commit violence against --

JUSTICE BREYER: Is your answer to that yes or no?

CARVIN: Oh, I'm sorry; my answer is no, they couldn't do it, because Morrison --

JUSTICE BREYER: No, they could not do it.

CARVIN: Yes.

JUSTICE BREYER: They cannot require people even if this disease is sweeping the country to be inoculated. The Federal Government has no power, and if there's -- okay, fine. Go ahead.

CARVIN: May --

JUSTICE BREYER: Please turn to Justice Kagan.

CARVIN: May I just please explain why?

JUSTICE BREYER: Yes.

CARVIN: Violence against women obviously creates the same negative impression on fellow citizens as this communicable disease, but the -- and it has huge effects on the health care of our country. Congress found that it increased health care costs by -

JUSTICE BREYER: I agree with you that --

CARVIN: Well, but --

JUSTICE BREYER: -- that it had huge negative effects but the majority thought that was a local matter.

JUSTICE SCALIA: I think that's his point.

This exchange suggests that, in the view of some or even most Justices, mandatory inoculation is near the outer limit of what the federal government can do to combat epidemics.

This wasn't the first time that Justice Scalia seemed unconcerned with an inoculation hypothetical: in Printz v. United States, which held that Congress lacks authority to command state officers, Justice Stevens's dissent argued that the majority's anti-commandeering rule might thwart "the mass inoculation of children to forestall an epidemic." The Printz majority was unmoved. Perhaps the Court believed that federalism entrusted such situations to state officers operating under state law. Or perhaps the Court envisioned the immediate expansion of federal health agencies in times of need.

In NFIB, however, some Justices seemed to take a different view of mandatory federal inoculation. In particular, Justice Alito suggested that there might be a distinction between Justice Breyer's inoculation hypothetical and the Affordable Care Act's insurance mandate:

JUSTICE ALITO: Mr. Carvin, isn't there this a difference between Justice Breyer's hypothetical and the law that we have before us here? In his hypothetical, the harm to other people from the communicable disease is the result of the disease. It is not the result of something that the government has done, whereas here the reason why there's cost-shifting is because the government has mandated that. It has required hospitals to provide emergency treatment; and, instead of paying for that through a tax which would be borne by everybody, it has required -- it has set up a system in which the cost is surreptitiously shifted to people who have health insurance and who pay their bills when they go to the hospital.

Justice Alito's distinction is a fairly subtle one, and it doesn't directly rest on the potential need for federal public health measures. Still, Justice Alito's remarks suggest that a majority of the current Court would sustain federal inoculation mandates, despite the fact that most justices in NFIB disapproved of the arguably analogous healthcare insurance mandate.

Of course, we shouldn't read too much into statements during oral argument, particularly because even committed skeptics of federal authority might view the issue differently during an actual emergency. But, as the exchange in NFIB suggests, it may be worthwhile to think through some of these questions before the emergency arrives.

The above is cross-posted from Re's Judicata.

Posted by Richard M. Re on October 15, 2014 at 02:57 PM in Constitutional thoughts | Permalink | Comments (2)

Tuesday, October 14, 2014

Supremacy and uniformity

I generally have been understanding, if not sympathetic, to the Court's odd behavior with respect to marriage equality of late. I understood the underlying idea that the Court need not act if the circuits are taking care of business. And I am ok with the Court dropping hints in one direction (as it arguably did in denying the five cases at the beginning of the term). But two things give me some pause.

The first is this post by Mike Dorf arguing that the Court's refusal to get involved is not a problem at the inter-circuit level, but at intra-state level, where a federal court of appeals and state high court might disagree, creating some confusion. He offers an interesting example: A federal circuit court recognizes the right to marriage equality and the executive responds by ordering clerks to issue marriage licenses to same-sex couples. But then a spousal privilege dispute arises in a state proceeding and the state supreme court refuses to recognize the privilege because, in its view, same-sex marriages are not constitutionally required. (The case has an added wrinkle--the state supreme court also disregarding the state executive's decision to issue the marriage license, which ought to be controlling). Nevertheless, it illustrates the multiple contexts and postures in which these issues arise.

The second was re-reading the justiciability discussion in Windsor in preparation for it (and Hollingsworth) in Fed Courts this week. I had forgotten how much Kennedy emphasized "the Supreme Court's primary role in determining the constitutionality of a law" and the Court's duty to address its constitutionality (what Scalia in dissent rejected as a "jaw-dropping . . . assertion of judicial supremacy"). Despite that rhetoric, the Court now seems in far less of a rush to perform that role.

Posted by Howard Wasserman on October 14, 2014 at 05:17 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, October 10, 2014

More on prosyletizing police

On Wednesday, I discussed a lawsuit brought by an Indiana woman who alleges that a police officer, at the end of a traffic stop, asked her about accepting Jesus as her lord and savior and gave her literature about an area Baptist ministry.

In my Civil Rights class on Thursday, we had an extended discussion of the case (the timing of the suit was perfect--we were finishing Qualified Immunity) that drove home for me the real chance that the officer will be able to successfully argue that the right was not clearly established. There probably is no case law on factual point--a police officer distributing religious material during a traffic stop without an explicit threat or punishment. Cases about proselytizing teachers are analogous (the complaint repeatedly alleges that the plaintiff did not feel free to leave, setting up a similar captive-audience situation combined with an implicit threat of punishment), but perhaps distinguishable in context. While there likely were department regs setting out proper conduct during a traffic stop, there likely was not an express prohibition on proselytizing. And there is a question of whether the stop was still ongoing. Is this the equivalent of selling foster children into slavery (Judge Posner's favorite example), so obvious that general anti-establishment principles are sufficient to clearly establish? Can we say the officer was "plainly incompetent" in believing it was constitutionally permissible to do this?

Update: On speaking with a colleague, I may be slightly more optimistic, as he points to two more avenues through which this right might be clearly established. First, officers are trained and should know that they cannot exceed the scope of a traffic stop in a way that is explicitly or implicitly coercive--to ask the driver on a date, to ask the driver for money, to sell their daughter's girl scout cookies, or to discuss who the driver is going to vote for in the next sheriff election; what the officer did here is not different in any meaningful way. Second, officers should know generally that they cannot stand in the public square and proselytize while in uniform and on-duty; that should put them on notice that they cannot do it during a traffic stop. Again, it all involves moving from general principles, so much depends on how willing the court is to see those general principles as establishing broad obligations of which a reasonable officer should have been aware.

Ultimately, it may not matter, as my guess is the officer (indemnified and represented by the city) will settle, as the case is not worth much money. But it reflects just how difficult life can be for § 1983 plaintiffs.

Posted by Howard Wasserman on October 10, 2014 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, October 08, 2014

Clearly established?

Back in June, we learned that at least the Eighth Circuit believes the right to burn a flag is clearly established. I wonder what the Seventh Circuit will think of the right not to have a police officer proselytize and hand-out information about a church in the course of a traffic stop.

Posted by Howard Wasserman on October 8, 2014 at 01:47 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law Review Review | Permalink | Comments (0)

Tuesday, October 07, 2014

The politics of sports

Here is (somewhat lengthy) video of a Ferguson protest outside Busch Stadium in St. Lousi before last night's National League Division Series game between the Cardinals and Dodgers. One fan wears a Cardinals jersey with "I am Darren Wilson" on the back; many fans engage the protesters with some not-unexpected-but-unfortunate racist vitriol.

But this highlights my long-held point that sports and politics are inextricably mixed. The protesters picked an ideal forum: Millions of people watching, thousands of people milling about, and an event that touched on civic pride and heart--all to protest conditions and issues that call some of that pride into question, prompting some reactions that illustrate precisely why that pride should be questioned.

Posted by Howard Wasserman on October 7, 2014 at 12:10 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Monday, October 06, 2014

Is it unseemly for SCOTUS to wait? (Updated)

Calvin Massey tries to figure out why SCOTUS declined to take a marriage-equality case. One possibility he offered is that "the Court is just avoiding the issue, hoping that the circuit courts will do the job for them," a possibility Massey calls "unseemly."

But is it unseemly and, if so, why? One reason to have "One Supreme Court" is to ensure uniformity of federal law. But if that uniformity comes anyway, is it really necessary that SCOTUS speak (or, as Dahlia Lithwick put it, lead) on any particular issue? Is there anything inherently wrong with SCOTUS waiting for a circuit split or for a circuit to get it "wrong"? Especially when the denial of cert. drops such a big hint to lower courts (particularly the Sixth Circuit, which seemed, based on oral argument, to be most inclined to uphold a state ban) to fall in line or risk being reversed later in the term?

Update: Neil Siegel frames the denials in line with the halfway decision in Windsor, as a Bickelian Court deciding as little as possible while dropping hints to direct the further conversation. Pivoting off that, it shows that our understanding of Bickel and passive virtues must be court-specific. Whereas Bickel likely imagined leaving the national conversation to the political branches and outside the Article III judiciary, here, it is unlikely any states will be suddenly motivated to legislate marriage equality. Instead, the conversation that SCOTUS is encouraging is in the lower federal courts, tasked with reading tea leaves (in Windsor and now in the cert. denials) and moving the discussion forward.

But is that what Bickel had in mind? Certainly multiple regional districts and circuits allow more "national conversation" and evolution than one final-and-thus-infallible decision of one Supreme Court. But these decisions still are being made by the same body of unelected-and-unaccountable life-tenured federal judges, drawn from the same pool and sharing the same orientation as the members of SCOTUS. That seems a very different conversation from the one Bickel imagined in promoting, for example, standing (which applies to all federal courts).

Posted by Howard Wasserman on October 6, 2014 at 05:27 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Friday, October 03, 2014

The Right to be Forgotten

Much of my scholarship concerns comparative constitutional law. An interesting example of such topics being addressed, beyond a law journal, is the recent article by Jeffrey Toobin in the Sep. 29 New Yorker titled "The Solace of Oblivion," http://www.newyorker.com/magazine/2014/09/29/solace-oblivion.  His article focuses on a European Court of Justice ruling that essentially ordered Google to delete any links to information regarding an individual in Spain, who had cleared up some financial difficulties that had been previously written about on the Internet. The ECJ said individuals had a right to prohibit Google from linking to items that were "inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed."  From a U.S. First Amendment perspective, such a ruling would almost certainly be an untenable speech restriction, especially given the vagueness and overbreadth of these criteria. 

The article includes an interview with the Austrian born Oxford professor who is considered by Toobin to be the "intellectual godfather" of this right to be forgotten.  The professor apparently sees analogies between Google retaining links to permanent blemishes about people on the one hand, and the Stasi, or other surveillance states, keeping records on people.  It's a short fascinating article that I recommend to folks who want to learn more about the differences between American and European approaches to these issues.  Students would find it especially accessible.  The article has special relevance now in light of disclosures regarding NSA and other surveillance actions in the U.S.  Yale Law Professor James Whitman wrote a seminal law review article addressing some of the underlying philosophical differences between the U.S. and Europe on privacy that has some similarities.   "The Two Western Cultures of Privacy:  Dignity Versus Liberty," 113 Yale L.J. 1151 (2003-4), http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1647&context=fss_papers     

Posted by Mark kende on October 3, 2014 at 04:41 PM in Constitutional thoughts, Culture, Current Affairs, First Amendment, Information and Technology, Web/Tech | Permalink | Comments (0)