Monday, June 17, 2013
I've noted a few of these points already on Twitter, but here are some items of minor interest to me in this morning's decisions from the Supreme Court. (For more thorough coverage, go to SCOTUSBlog; for my own more thorough thoughts, come visit here later.)
- Justice Thomas writes an opinion joined by the four "liberal" Justices. I can't think of a time this has happened since Atlantic Sounding v. Townsend and United States v. Bajakajian, and both of those were before Justices Sotomayor and Kagan joined the Court. If that's right, I'm pretty sure this is the first time Justice Thomas has assigned a majority opinion as the senior-most Justice. [UPDATE: As a commenter points out, not actually the first time for a CT assignment, or even for this lineup. But still unusual.]
- It's interesting that Justice Alito launches a full-on criticism of Apprendi in his dissent (including a citation to the brilliant Jonathan Mitchell, former GMU law professor and current SG of Texas); but it's also interesting that none of the other dissenters (including the Chief and Justice Kennedy) join in.
- Not for the first time, I despair of the Court having a coherent theory of stare decisis. Not that there aren't coherent theories, just that the Court doesn't have them.
- Justice Thomas's reiterated suggestion that Griffin v. California should be overruled reminds me of why I like Justice Thomas so much.
- Admin law scholars or ambitious students looking for a nice essay topic, see footnote 10: "The [Commission] currently lacks a quorum—indeed, the Commission has not a single active Commissioner. If the EAC proves unable to act on a renewed request, Arizona would be free to seek a writ of mandamus to 'compel agency action unlawfully withheld or unreasonably delayed.' 5 U. S. C. §706(1). It is a nice point, which we need not resolve here, whether a court can compel agency action that the agency itself, for lack of the statutorily required quorum, is incapable of taking."
- Justice Thomas's willingness to break the don't-cite-Bush-v.-Gore taboo is another reason I like Justice Thomas so much.
- That's a lot of citations to legal scholarship in the majority opinion. (I counted 18, but I was counting quickly, and there were a lot of repeat citations to Areeda and Hovenkamp.)
- I was skimming the opinion without noticing who was the author until I got to page 26: "The amount of damages sought in the complaint is based on the number of persons,over 30,000 individuals, whose personal and highly sensitive information was disclosed and who were solicited. Whether the civil damages provision in §2724, after a careful and proper interpretation, would permit an award in this amount, and if so whether principles of due process and other doctrines that protect against excessive awards would come into play, is not an issue argued or presented in this case." Must be Justice Kennedy! I thought.
- The fearsome foursome of Scalia, Ginsburg, Kagan, and Sotomayor are once again in dissent.
Saturday, June 15, 2013
How Could Surveillance Violate the First Amendment?
Howard asks an interesting question about surveillance and the First Amendment. In her concurrence last term in United States v. Jones, Justice Sotomayor said: "Awareness that the Government may be watching chills associational and expressive freedoms." But she didn't provide a citation for this proposition, and the one citation in the rest of the paragraph is to Judge Flaum's concurrence in the Seventh Circuit decision in Cuevas-Perez, which doesn't discuss freedom of expression. So what might Justice Sotomayor be talking about, and is there any merit to it?
The closest analogy I could come up with are the claims for a reporters' privilege in Branzburg v. Hayes. There, the press argues that the First Amendment gives it a privilege against testifying in court in certain cases. There too, the idea seems to be that secrecy and free expression are intertwined, and that people won't talk to the press if they know that the government might later force them to testify about it. But the court rejected the claims in Branzburg and has shown no sign of reviving them in the more modern era. And if anything, the reporters' privilege cases seem to have stronger intuitive force than an anti-NSA "chilling effect" claim; so if the reporters cases fail, the NSA claims fail a fortiori.
The other analogy I could come up with are the Seventh Circuit "Red Squad" cases, which deal with a series of First Amendment challenges to the FBI's investigations and surveillance of various left wing groups (including the ACLU, which is leading one of the new NSA lawsuits). (E.g. here and here.) While the opinions mostly deal with some interesting questions about equitable remedies, the underlying, successful claims were First Amendment claims.
But the core of the Red Squad claims was retaliation and selective prosecution-- that groups had been picked for burdensome or chilling investigations because of their political views, and perhaps in order to suppress those political views. By contrast, from what we know of the NSA programs, they do not have this problem. Whatever their flaws under the statutes and the Fourth Amendment, the collection of data from domestic targets like the ACLU doesn't appear to be targetted (so far as we know); it appears to be indiscriminate. While being indiscriminate might create problems for the program under other law, it actually insulates it from a Red Squad retaliation claim.
Laird v. Tatum, a 1972 Supreme Court case dismissing a surveillance lawsuit for lack of standing confronted a similar chilling effect claim; while the Court did not rule on the merits, it appeared to make a similar assumption-- that the First Amendment might regulate selective targetting on the basis of political viewpoint, but not the chilling effect of indiscriminate information gathering. The Court noted that it had never found a prohibited "chilling effect" to "arise merely from the individual's knowledge that a governmental agency was engaged in certain activities or from the individual's concomitant fear that, armed with the fruits of those activities, the agency might in the future take some other and additional action detrimental to that individual."
So I am skeptical that the First Amendment is a useful way to challenge for challenging the NSA surveillance programs, at least in the absence of retaliation or selective prosecution. But the ACLU has a lot of clever lawyers, so it may well be that they will come up with something that I have not.
Surveillance and the First Amendment
A different question on the PRISM lawsuits: Does surveillance, without more, violate the First Amendment? And if so, how? The argument is that having government watching who and when I'm calling chills my speech and my willingness to engage in important speech. Are there cases holding that government action that chills speech, but does not impose or threaten any formal legal consequence, states a First Amendment violation? For a low-tech comparison, if a municipal government announced that police would video record all public gatherings (which presumably would impose a comparable chill), would that state a First Amendment violation?
Thursday, June 13, 2013
Selling Made-To-Order Embryos and the Split on the Right
The New England Journal of Medicine will soon have in print an essay by Eli Adashi and I on the sale of "made-to-order" embryos. The article "Made-to-Order Embryos for Sale — A Brave New World?" has been online for a while already and concerns a recent development in the reproductive technology industry. As we put it:
The proliferation of commercial gamete sources (e.g., sperm and oocyte banks) has opened the door to a made-to-order embryo industry in which embryos are generated with a commercial transaction in mind. This prospect of a for-profit embryo bank is no longer theoretical. Indeed, as recently as November 2012, the Los Angeles Times reported on one such clinic that “sharply cuts costs by creating a single batch of embryos from one oocyte donor and one sperm donor, then divvying it up among several patients.” The report went on to state that “the clinic, not the customer, controls the embryos, typically making babies for three or four patients while paying just once for the donors and the laboratory work.”
Our essay reviews the legal regime that governs it (short answer, in most states it is not illegal or even regulated) and then considers the ethical premissibility of this practice. We examine objections to the practice premised on crowding out of embryo donors, the exploitation or undue inducement of donors, the corruption of reproduction (this is sometimes called "commodification" thought I think that term represents a broader set of arguments, so I use "corruption" in my work to capture the value-denigrating objection specifically in its intrinsic or consequentialist form), and the furthering of eugenic objectives. Throughout the short essay our argumentative strategy is to press on whether this new practice is all that different from existing practices, epsecially the sale of sperm and egg which individuals can themselves put together to create embryos for reproductive use or to destroy in the generation of embryonic stem cells as well as the practice known as 'embryo adoption' or 'embryo donation.' The thing we think is newest here is actually issues related to lack of guidance on the parentage and ownership of embryos in the event of clinic bankruptcy, changes in minds by the donors, or dispositional conflicts (though John Robertson has suggested the law may be more certain than we posit).
The article is short, limited to 1500 words, so obviously we couldn't tackle everyhting. What has been most interesting to me has been a split of opinion on the article in the righter wings of the blogosphere.
The American Enterprise Institute published commentary on our article "'Walking the Ethical Edge: Made to Order Embryos Address Genuine Needs'" beginning with a view that we own our own bodies and pressing on justifications for prohibiting voluntary transactions, concludes our article "offer[s] a thoughtful guidance through the ethical thicket of embryo donation," and that "arping about or in some cases ignoring the failures of the current IVF system, seems the preferred choice for those opposed to even debating the benefits and challenges of a for-profit embryo market. Unless we as a society are determined to reserve the right of reproduction by infertile couples to the wealthy, we should welcome options."
By contrast, the National Review Online has an article "Made To Order Commodities Market" with a more negative reaction. The author claims we've engaged in "sophistry [that] has always been the anything goes in biotech crowd’s primary tool"and concluding ominously "Make no mistake: This means human cloning is coming closer, as selling embryos for use in IVF is just the front for selling cloned embryos for use in research." The author seems to agree with us for the most part that the distinction between existing practices and this new one is thin[fn1] , but would have us reverse those other practices. That is fair enough. We employ an argument from symmetry here and it can be resolved either way, and we don't actually take a position as to whether these technologies should all be permitted or all prohibited just that they are hard to distinguish (that said, anyone who knows my own work can suspect where I would come out, I can't speak for my coauthor on this!)
Both commentaries are interesting and worth reading. What is more interesting to me is the way in which debates on reproductive technology usage, much more so than abortion, really does cleave the right into two. The libertarian wing wants a strong justification for limiting reproductive choices like other choices about what to do with our bodies and likens the debate to that on organ sale. The more socially conservative wing sees this the beginning of slouching towards gommorah. On abortion this fissure is easier to solve, since the claim of fetal personhood allows more libertarian oriented thinkers to adopt Harm Principle type justifications of preventing harm to fetuses as persons . As I noted in blogging about personhood on my last visit, embryonic personhood claims may be harder to sustain, and thus the consensus more easily shattered. I am part of a project looking at the intersection of abortion and reproductive technology advocacy and scholarship, so this room for schism is something I may write more about soon.
[fn1]: The author does suggests that sperm and egg sale are different because there is no "nascent human being." I think he means "person" not "human being" and I've blogged about why that distinction might matters in my last visit and also why one might support certain theories of when personhood begins over others. In any event the theory of personhood the author implictly champions would seem not to distinguish the existing possibility of preembryo destruction, indefinite freezing, stem cell derivation, etc.
Tuesday, June 11, 2013
Acquiescence is in the news. The Obama administration has announced that it will make Plan B available in a single pill, over the counter, for women of all ages, assuming that will comply with a district court's prior ruling. Meanwhile an Illinois has prosecutor has announced that he will start allowing Illinoisians to carry concealed weapons, even though the legislature has not yet repealed Illinois's public gun ban. A Seventh Circuit decision had held the law unconstitutional, but the Illinois courts have so far disagreed.
I am not sure whether either decision is the right one, although both may be. As for Plan B, it's a little odd for the administration to let a single district court make regulatory law for the entire country without even an appeal. (Remember all of that talk in the administration's DOMA briefs about how important it was for the issue to be resolved nationwide rather than left to the lower courts?) On the other hand, perhaps the administration was inclined to make the pill more widely available, and the court simply set the agenda or provided a political excuse.
As for the Illinois prosecutions, the disagreement among the prosecutors and the disagreement between state and federal courts suggests that a higher power will have to resolve this sooner or later. And the case for acquiescence until then is not obvious. The Seventh Circuit doesn't sit in review of state prosecutions, and under AEDPA the court of appeals decision is irrelevant to collateral attack. If the prosecutor doesn't think the statute is constitutional, perhaps he shouldn't enforce it, but if he does I'm not so sure why he cares what the Seventh Circuit thinks.
Monday, June 10, 2013
Judges Gone Wild?
I couldn't help but think that this judge's behavior, earlier today, is an example of imperious official action. The judge was all set to accept the defendant's plea bargain, but because the offender, footballer Chad Johnson, gave a playful slap on the backside to his lawyer during the hearing, in response to a question asked by the judge regarding whether he was satisfied with his counsel, she rejected the bargain, which called for no jail time, and gave him 30 days in jail. You can read more about it here and see the footage from the court. (H/t: atl). Stephen A. Smith's apt albeit volcanic reaction on ESPN emphasizes the socio-legal realities of why Johnson was an idiot here. It's true that Johnson is a criminal wife-beating a**hole, and, in this context, acted imprudently, but is the bum-slap really the kind of thing that warrants jail when it was not otherwise about to happen? It doesn't warrant the judge's behavior in my mind, and instead strikes me as the kind of official tyranny and hot-headed hubris that rule of law constraints are meant to prevent. The quickness of the decision also suggests the need for courts to impose a mandatory cooling-off period between the time they reach a decision re: liability and the time they impose a sentence.
Cf. some of the problems of judicial discretion more generally. And of course, this seems right in the same vein as Judge Marvin Frankel's famous story in Criminal Sentences: Law Without Order about the judge who, over cocktails, acknowledged elevating a defendant's sentence by a year simply because the offender had been disrespectful to the judge that day.
Sunday, June 09, 2013
Did Justice Powell Know He Had A Gay Clerk?
If you just looked at the front page of today's New York Times, you might not know from headline ("Exhibit A for a Major Shift: Justices' Gay Clerks") that it contains what seems to be a major historical revelation. Most people familiar with the Court's progression from Bowers v. Hardwick to Lawrence v. Texas are also familiar with a sad and ironic statement attributed to Justice Powell: In the course of changing his vote to uphold the law, he was reported to have said "I don't believe I've ever met a homosexual," even as he had a gay clerk at the time.
Well, according to today's story, Justice Powell may have said that, but he knew that it was not true:
C. Cabell Chinnis, a gay lawyer who practices law in Palo Alto, Calif., was one of Justice Powell’s clerks as the justice was struggling with how to vote in the Hardwick case. In an interview, Mr. Chinnis said his boss must have known about his sexual orientation. “He had met my boyfriend,” Mr. Chinnis said.Indeed, the justice sought him out for advice precisely because he wanted to learn about the mechanics of gay sex, Mr. Chinnis said, recalling an uncomfortable exchange on the subject. “This 78-year-old man is asking me about erections at the Supreme Court,” he said. ...
“It’s more important to me to make love to the person I love,” Mr. Chinnis remembered saying, “than to vote for a judge in a local election.”
Now maybe this is common knowledge to those who've been following the history of the Court more closely than I have. But Powell's Wikipedia page says he didn't know, his 2002 obituary in the New York Times suggests he didn't, as do many other stories. So correct me if I'm wrong, but if true, this seems like big news.
[Of course it's also possible that Mr. Chinnis's comments have been mis-reported or taken out of context. Courting Justice, by Joyce Murdoch and Deborah Price reports that none of Powell's clerks ever came out to him, and includes quotations from Mr. Chinnis that suggest a slightly different account. But it's hard to tell for sure.]
Friday, June 07, 2013
With the Supreme Court's announcement that it will move to issuing opinions twice a week, it is fair to say we're hitting the final stretch of the term. And it's moderately interesting that the Court has not yet issued its opinion in Fisher v. University of Texas. Yes, the case is a big and controversial one, and its common for those cases to take a long time to come out. But it was argued in October, and the Court usually has all of its October opinions out long before June, no matter how controversial they are. (OT 2011's last October opinion: April 2; OT 2010's last: March 29; OT 2009's: April 28; OT 2008's: April 21.)
So what's taking so long? Keeping in mind the high likelihood that the majority opinion was assigned to Justice Kennedy, and that the argument appeared to favor petitioner, I have four hypotheses for the delay:
- Just slow going. Perhaps the majority opinion is just very long, with a very long lead dissent assigned to a justice who writes pretty slowly. This is possible, of course, but the delay is sufficiently unusual that I think it's likely something more is going on.
- Changing the course. Perhaps there has been a substantial change in the opinion during the course of drafting-- quite possibly by Justice Kennedy himself. The two most obvious possibilities would be that Justice Kennedy initially decided to invalidate Texas's program but has now decided to uphold it (I doubt it), or that Justice Kennedy had initially decided to preserve Grutter but has now decided to overrule it. I continue to think that both of these hypotheses are wrong, and that the case will be reversed on narrow-tailoring grounds that purport to leave Grutter intact, but I no longer have as high a degree of confidence in that prediction.
- Reinforcements. Justice Kennedy's majority opinions usually avoid getting into extensive fisticuffs with the dissent. Perhaps, after reading the dissent, another justice in the majority has decided to write a responsive concurring opinion that responds in detail to all of the dissent's claims. (My nominee for such an opinion would be Justice Alito, perhaps in a reprise of the Alito/Kennedy division of labor in Ricci v. DeStefano.) This adds significant time because the concurrence doesn't even get started until after the dissent has circulated, and there can also be a ton of last-minute revisions.
- Originalism. Justices Thomas and Scalia have never provided very much of an explanation for how their view that the 14th Amendment requires symmetrical colorblindness is consistent with the Amendment's original meaning. There are plausible arguments available to them, as Mike Rappaport has recently shown, but they haven't talked about them much. Perhaps one of them has finally decided to get into the issue, perhaps after being provoked by some comments in the dissent. (My nominee for such an opinion would be Justice Thomas, perhaps in a reprise of some of his famously long separate opinions like Holder v. Hall or U.S Term Limits v. Thornton.)
Of course it's very hard for those outside the building to correctly guess what's going on inside. (Mark Walsh has a few more hypotheses about the delay here.) But I suppose that before my guest-blogging stint is up, we shall see.
Thursday, June 06, 2013
Hey hey Guthrie
I've spent a lot of the past year thinking about the outer limits of the scope of the Necessary and Proper Clause (or as I now call them, the "great powers" that cannot be implied and must be expressly granted to the federal government). Examples are always a little tricky to come by, in part because the easiest cases don't arise. So one frequently-used example comes from the Supreme Court's opinion in Coyle v. Smith-- Congress can't tell a state where to locate its state capital.
The case also involves a bunch of complicated equal-footing stuff, but the central story is that Congress tried to tell the newly-created state of Oklahoma that it had to keep its capital in its old location, Guthrie, for seven years or so, but a bunch of voters in the state decided to move it to Oklahoma City before the time was up. What I've recently become puzzled by (after a friend raised at a conference this week) is: Why did Congress care where the capital of Oklahoma was?
I've spent longer than I'd care to admit poking into this, and I'm just perplexed. I found this old first-hand account of the decision to move the capital, but it contains nothing intelligible about why Congress had included the Guthrie condition. Do any readers have any guesses or leads?
If You Don't Like Prisons That Much, Then Why "Let Judges Be Judges?"
One of my ongoing concerns about many in the academy's infatuation with individualized sentencing and the preservation of substantial judicial discretion when it comes to sentencing is that there is a tendency to obscure what judicial discretion will do. Lots of folks complain about how structured sentencing (particularly in the Fed system) means that prosecutors now run the show and that judges are less powerful than they were (or would be) in indeterminate (fully discretionary) sentencing regimes. Lots of these academic voices, however, are pretty lefty/libertarian/pro-defendant/anti-mass incarceration (pick one or more of these). The problem as I see it is that the presence of substantial judicial sentencing power will often lead to stiffer sentences, not more lenient ones. That's because prosecutors and defense lawyers often bargain away charges, facts, etc, and by not sharing the existence of those facts/charges, the sentencing judges are left to defer to the deals struck by the insider repeat players. But when judges have concerns that these deals are being struck in a way that's anti-retributive or bad for public safety, they often want to have the information that would allow them to impose LONGER sentences. In sum, I bet that the more judicial discretion there is, and the more information judges have, the longer the sentences will be.
This is, of course, an empirical hypothesis, and happily, there is some good empirical support for the proposition I'm noting. Kevin Reitz wrote a fantastically important and understudied piece in the Texas Law Review showing, among other things, that states with indeterminate sentencing have among the highest rates of incarceration.
But anecdotally, you need a good story to see this dynamic, and Doug Berman's Sentencing blog has the story you need to see this. As the story goes, Judge Stephanie Rose on the fed bench in Iowa is excoriating the federal prosecutor's office for not disclosing more information about defendants that would lead to stiffer sentences. To my mind, this is an illuminating example of a much larger problem. Normatively, of course, indeterminate/discretionary sentencing doesn't have to lead to higher punishment levels necessarily, but it shouldn't be suprising that the contingent forces tend to work in that way.
--One last note. I've been watching The West Wing on Netflix while working out for the last few weeks, and I noticed that, at one point in one of the episodes, late Season 1 or early Season 2, Aaron Sorkin/Jed Bartlet seemed to think that empowering judges with substantial sentencing discretion was an obviously attractive thing to do from the liberal political perspective of the Bartlet presidency. I found this, um, unconvincing, notwithstanding my general intoxication with the show.
Wednesday, June 05, 2013
Some Reactions to Maryland v. King, and a Question for Barry Friedman and other 4A Friends
I have done only a bit more than skim Maryland v. King, and because I'm not really a Fourth Amendment guy, I'm preserving my strategic ambivalence about the outcome as a matter of doctrine. But I have a policy question for NYU's Barry Friedman along with a few other hasty reactions.
First, Barry writes the following in Slate, :
"Did the fact that Alonzo King was accused (not convicted) of pulling a shotgun on some folks provide a better reason to believe he’d committed an unrelated rape than that anyone else walking the streets had done so? Hardly."
It seems to me that Barry's posing either a specific or a general empirical question, neither of which I possess excellent knowledge about, although I bet there are good proxies out there for saying we know more than nothing. In fact, I bet the reason law enforcement wants access to DNA of arrestees is because of their view that arrestees provide, on the margin, a better pool to capture DNA from than a random selection of the population at large. Law enforcement interests here are driven by Big Data patterns that suggest that felony arrestees are likelier to be tied to other crimes than non-felony arrestees. That's an empirical claim and Barry doesn't provide any links or data to suggest that we should doubt that claim's truth.
From a crime control perspective, would it be better if we had a DNA swab of every person and new baby? Sure, assuming the integrity of the collection. Indeed, Friedman thinks this would be permissible under the 4A (were Congress to pass it) but it's not likely to be authorized by Congress anytime soon. (Btw, would a nation-wide DNA registry itself be unconstitutional under the 4A? Distributed benefits and costs might save it from the suspicionless problem. Curious for thoughts.)
But as long as a) we are not swabbing every new baby and all existing persons to create a national DNA database, and b) we are taking the time to inventory and identify felony arrestees, can anyone doubt that someone arrested for a felony is, on the margin, more likely to be guilty of some other offense that's out there?
I'm not saying there aren't doctrinal or other reasons that should restrain the DNA swabs. But simply as a matter of statistics or common experience, I'm left wondering what supports the pretty heterodox view Barry offers that felony arrestees are not in fact more likely to have ties to other crimes than a randomly selected individual? Yes, I recognize that the value of the signal of a felony arrest is not the same as the signal of a felony conviction, but ... if we were going to block the swabs for crime-control purposes on constitutional grounds, let's at least be aware of what's being traded off in the name of constitutional fidelity. And while we're at it, let's not forget that wide DNA access has the capacity not only to reduce Type II errors, but also to exonerate and thus redress Type I errors too. Fixing false positives is a constitutional value as well as a moral imperative for state officials. I'm not sure the 4th amendment claims advanced by the dissenters and their supporters are adequately sensitive to that, even if the majority implies this is happening already as a matter of fact.*
2. I agree with Scalia's dissent that the "identification" arguments on behalf of the DNA swabs are more make-weight than the straightforward though constitutionally more tricky arguments in favor of clearing cases and fixing mistakes. That's because the police could always use the DNA swab to promote their administrative needs (e.g., ensuring that the offender doesn't have a record of violence toward prison officials or communicable diseases that would have to be taken into account for housing him) without using the DNA swab to scope out possible relevance to other crimes.
3. The Court's special needs doctrine allows for suspicionless searches of the public in order to regulate safety or achieve other non-crime detection goals of certain policy weight. Here are two reasons for thinking that the majority's result is correct even if not its reasoning.
a) It's not that far a stretch to say that given the criminal justice system's interests in ensuring that the institutions of punishment are taking adequate care and precaution for the wellbeing of inmates and officials, that the population of felony arrestees is distinct from the population at large, and thus the goal of using DNA to ferret out possible dangerousness or illness is one that should pass muster on special needs grounds. But the reason I don't love this argument is because if taken on good faith, it would not permit allowing the DNA information to be used to exonerate previously convicted offenders. That would probably be too close to the crime-detection purposes that the special needs doctrine is supposed to be attentive to. However, one might slice the constitutional baloney very thinly and say: DNA swabs are constitutional for administrative purposes pre-conviction, and they are also constitutional for purposes of exonerating others, but they can't be used as the basis to clear other cases against the defendant whose cheek is being swabbed.
b) Speaking of slicing constitutional baloney thinly, I didn't see this argument and it seems worth consideration too--though I detest it because I'm doubtful of the constitutionality and morality of the underlying practices. Here goes: Crime detection is distinct from calibrating punishment. In indeterminate sentencing regimes as well as structured sentencing that allows for "real offense" sentencing instead of (my preferred) charge offense sentencing, the admission of the DNA evidence as a tie to other crimes should be permitted for purposes of sentencing offenders on an individualized basis on the basis of conduct not proven to the jury beyond a reasonable doubt. So, say King is in Texas and convicted of aggravated assault, which leaves him open to a 5-99 year spread under the statute for first degree felonies. The sentencing judge/jury/parole folks can all take into account that he's been tied via DNA to other rapes, even though not convicted of those rapes. Poof. The sentence for the assault goes up, we don't bother with charging and convicting King for the rapes, and we rest our heads on the pillow of Williams v. New York. Sentencing is distinct from crime-detection. Right? How awesome is that. Ick.
*Scalia notes in his dissent (fn.2) that the Type I error redress option is not currently available b/c of the way the FBI runs its DNA databases. That could be fixed of course, and should be.
(When) Was Fingerprinting Unconstitutional?
One of my main items of business during this blogging stint is to write about this month's Supreme Court cases as the term wraps up. So the first order of business is Monday's cases. I fear I don't have anything interesting to say about Hillman v. Maretta, the group life insurance case that a friend described as "the most preempted law ever." And while a lot of people have written things about Maryland v. King, I thought I'd throw in my own thoughts.
I'm more sympathetic to the dissent's reasoning than I expected to be. When I first saw the case granted, I confidently predicted a reversal and I wasn't even sure there would be a dissent. But I do now see why the dissent thinks this is a questionable extension of the special needs doctrine. It's common ground that the police can't just go search your house or your off-site car or your gym locker without suspicion when you've been arrested, so it needs a story about why DNA is different. And the claim that the DNA searches are largely for identification purposes rather than crime-solving purposes seems implausible.
That said, I don't think Justice Scalia does a good job of distinguishing DNA from fingerprints. As I read it, the dissent actually trots out three different arguments about why its view doesn't forbid the routine fingerprinting of those who are arrested.
- Fingerprinting is not a search. ("The Court does not actually say whether it believes that taking a person’s fingerprints is a Fourth Amendment search, and our cases provide no ready answer to that question.") Possible, but Justice Scalia seems unwilling to actually commit to this argument, he just mentions it and moves on.
- Fingerprinting really is for identification purposes. ("Fingerprints of arrestees are taken primarily to identify them (though that process sometimes solves crimes); the DNA of arrestees is taken to solve crimes (and nothing else).") Possible, but this argument relies heavily on computer databases that were only created in the late 1990s, and fingerprinting has been around for a lot longer than that.
- Fingerprinting was unconstitutional for a long time (and maybe still is?). ("The 'great expansion in fingerprinting came before the modern era of Fourth Amendment jurisprudence,' and so we were never asked to decidethe legitimacy of the practice ... but it is wrong to suggest that this was uncontroversial at the time, or that this Court blessed universal fingerprinting for 'generations' before it was possible to use it effectively for identification.") Justice Scalia's views about the IAFIS database would seem to imply that routine fingerprinting was unconstitutional until it became part of an identification system. But he is oddly non-commital. The Court didn't "bless" it, and it was not "uncontroversial," but was it actually wrong?
As best I can tell, the dissent's view is a combination of 2 and 3, with 1 mentioned but not seriously contended. If so, that's somewhat surprising. At the oral argument in Hollingsworth v. Perry, Justice Scalia pestered Ted Olson with the question: "When did it become unconstitutional to exclude homosexual couples from marriage?" and seemed incredulous that the constitutional answer could have changed more recently than the enactment of the 14th Amendment. It seems fair to ask him the same question about the constitutionality of fingerprinting.
[CORRECTION: I originally mistyped "affirmance" instead of "reversal" above.]
Tuesday, May 28, 2013
Two high-profile federal trials are currently challenging controversial law-enforcement practices. In Arizona, District Judge G. Murrary Snow enjoined Maricopa County Sheriff Joe Arpaio's programs aimed at stopping and detaining undocumented individuals, finding that the program involved racial profiling in violation of the Fourteenth Amendment and that the sheriff lacked authority to seize people on nothing more than reasonable suspicion of being in the country unlawfully. In New York, District Judge Shira Scheindlin is presiding over a trial challenging NYPD's stop-and-frisk policies and is widely expected to hold that the program is unconstitutional, also under both the Fourth Amendment and equal protection.
One question: How do the plaintiffs have standing in either case? Both cases are class actions, brought on behalf of all persons who will be subject to these various programs; for example, the Arizona action was on behalf of “[a]ll Latino persons who, since January 2007, have been or will be in the future stopped, detained, questioned or searched by MCSO agents while driving or sitting in a vehicle on a public roadway or parking area in Maricopa County Arizona.” The lead plaintiffs in both cases are individuals who have been subject to these unconstitutional law-enforcement programs in the past. No damages are sought in either case, only declaratory and injunctive relief.
But Clapper and Lyons seem to suggest that a plaintiff can obtain standing to challenge law-enforcement policies only by showing a certainty or high likelihood that they will be subject to enforcement efforts in the future. Even accepting the breadth of the challenged municipal policies, standing requires that this plaintiff show that he himself will be subject to enforcement efforts pursuant to those policies. And Lyons tells us that past harm is not sufficient to establish future harm; that someone was subject to unconstitutional enforcement efforts in the past (as was the plaintiff in Lyons, as well as the lead plaintiffs here) does not mean he will be subject to enforcement efforts in the future.
So how is either case different than those precedents for standing purposes? The only apparent difference is that both are class actions, while neither Clapper nor Lyons was. But should that be enough for Article III purposes? That seems to place a lot of substantive import on a procedural mechanism. I cannot imagine the five-justice majorities in either case would accept that the standing limits they imposed are overcome by nothing more than Rule 23. Are there any other differences that, in light of current doctrine, justify standing in these cases in light of Clapper and Lyons?
Hey, look . . . there's an administrative state!This WaPo piece by Jonathan Turley ("The rise of the fourth branch of government") was welcome (because it will be seen, I suspect, by at least some of my students as adding some plausibility to my own suggestions in class that the place and role of the "administrative state" in our constitutional structure raise tricky questions) but also kind of funny: "The rise of this fourth branch represents perhaps the single greatest change in our system of government since the founding. We cannot long protect liberty if our leaders continue to act like mere bystanders to the work of government." Whoa . . . who knew?
Thursday, May 23, 2013
Gruesomeness and the First Amendment
As one who is interested in both women's reproductive rights and the First Amendment, I find issues at their intersection of those protections to be inherently fascinating. One such set of issues surrounds abortion protests, and a particularly thorny question under that broad rubric involves the permissibility of restrictions on the display of gruesome or graphic images of dismembered fetuses. Usually, such arguably content-basedrestrictions, which appear to raise First Amendment concerns, are justified as protecting children from the disturbing imagery.
Now, it appears the formidable Eugene Volokh has filed a cert petition in a case involving just such a restriction, in the form of a state-court injunction against "displaying large posters or similar displays depicting gruesome images of mutilated fetuses or dead bodies in a manner reasonably likely to be viewed by children under 12 years of age." The permissibility of restrictions like this has been the subject of a circuit split, and the Supreme Court is set to discuss the petition at its May 30 conference.
A few random thoughts follow the jump:
First, there are many problems with this sort of restriction that make me uncomfortable, not the least of which are the vagueness of the term "gruesome" and the problem of limiting what can be displayed in public because of concerns about the possibility that young (perhaps only very young) children might be disturbed by it.
At the same time, though, I do think there is a category of speech (really, imagery) that is so visually--one might even say viscerally--disturbing that there may well be a compelling interest in protecting children from it. Moreover, I say "compelling," because I'm assuming this is a content-based restriction requiring strict scrutiny, but I'm not completely sure that's true. This might be viewed as a content-neutral restriction on the manner of speech, justified by concerns about the physical impact ("secondary effects"?) of that speech on others -- not because of the message conveyed but because of the way it is conveyed. Of course, the problem is that it is exceedingly difficult to distinguish the medium from the message here.
Yet, at the same time, these sorts of arguments run smack up against Brown v. Entertainment Merchants Ass'n, where the Supreme Court made it clear, once again, that the only horror we can't expose our children to is sex. Only sexual content is so forbidden, so disturbing, and so inappropriate for children that it can be off-limits to them when it is constitutionally protected to adults. To be clear, I don't think sexually explicit content is usually appropriate for minors, and I also don't favor lots of new limits on speech in the name of protecting minors. But I really don't get the rationale, other than tradition, for drawing this sort of line between sex and violence or other content that is likely equally upsetting to children.
Finally, and a little more tangentially, I think the extent to which debates about abortion are often driven by a sort of "graphic-ness," in the sense of a highly visual orientation, both in the imagery but also in the language of Supreme Court cases, is peculiar and fascinating, as I have briefly explored elsewhere.
Police Body Cams
This afternoon, I appeared on a HuffPost Live discussion (hosted by Mike Sacks of First-on-First fame) of police use of body cameras to record public stops and interactions. During closing arguments in the trial challenging NYPD policies with respect to Terry stops, District Judge Shira Scheindlin said she was "intrigued" by the idea of police using body cams for all stops. Of course, I disagree with her comment that if we had cameras "Everyone would know exactly what occurred," because video is not that absolute. Still, this use of cameras (not unlike dashboard cameras) would be a good idea, so long as police accept that everyone else on the public street, including the person in the police encounter, gets to do the same.
Wednesday, May 22, 2013
IRS and the political valence of constitutional litigation
I have written before about the phenomenon we have seen since 2008 of politically conservative plaintiffs (individual and organizational) bumping up against limitations on constitutional and civil rights litigation established in cases brought by politically liberal plaintiffs (think of all the birther lawsuits dismissed for lack of standing). The lawsuit filed Tuesday by True the Vote over the IRS handling of exemption applications by conservative groups could be the latest example.
In addition to a declaratory judgment that the group is entitled to its exemption under the tax laws, the lawsuit brings First Amendment claims under Bivens against various IRS officers and supervisors, including the acting commissioner, former commissioner, and direct of the Exempt Organizations Division. How is that part likely to fare?• SCOTUS has not yet established whether a First Amendment speech claim can be the basis for Bivens damages, a point the Court reiterated last term (in a case in which the plaintiff was arrested for verbally confronting Dick Cheney in a shopping mall).
• Lower courts are unanimous that a First Amendment claim requires proof of intentional viewpoint discrimination--that the officers acted a certain way because of disagreement with the viewpoint expressed by the speaker. Is using a political identifier per se treatment motivated by disagreement with that viewpoint?
• The Court hinted in Iqbal that there was no supervisory liability under Bivens. Even the most-forgiving view of Iqbal is that the state of mind required for supervisory liability matches the state of mind required for the underlying right. That means the supervisors must have created policies targeting groups because of their viewpoint. But the allegations state that the supervisors "knowingly and willfully applied the IRS Review Policy to True the Vote," which is not sufficient under Iqbal to plead their intent to discriminate.
• Lots of those darn conclusory and "information and belief" allegations, for example ¶ 54 ("Upon information and belief, under the IRS Review Policy, the IRS and IRSEmployees engaged in other discriminatory conduct toward applicants for tax-exempt status thatwere perceived to hold conservative policy positions or philosophical views contrary to those held by the current Administration."). The complaint has the benefit of media coverage and the Inspector General reports, but it shows how hard it is to allege state of mind and behind-the-scenes action in non-conclusory terms.
• Are the officers entitled to qualified immunity? Is the right allegedly violated clearly established? Courts keep insisting we cannot define the right at too high a level of generality (e.g., "the right to be free from viewpoint discrimination"). Is there case law holding that the First Amendment is violated by the use of political identifiers as the basis for a sorting mechanism for purposes of determining tax exempt status? And since several defendants are (or were) top-ranking federal officials, is this a case subject to Justice Kennedy's concurrence in Ashcroft v. al-Kidd demanding SCOTUS precedent to clearly establish a right as to top-level officials?
The complaint is generally well-drafted and it appears (I know nothing about tax law) the statutory and D/J claims can go somewhere. But the Bivens allegations look no different than in the many other recent lawsuits that SCOTUS and lower courts have rejected for varying reasons.
9th Circuit Strikes Down Arizona 20 Week Fetal Pain Abortion Ban: Some Reflections on the Opinion
Yesterday, the 9th Circuit (a panel of Berzon, Schroeder, Kleinfeld) struck down as unconstitutional Arizona's ban on abortion at 20 weeks. As the court described the statute:
The challenged portion of Section 7, codified at Arizona Revised Statutes § 36-2159, reads:
A. Except in a medical emergency, a person shall not perform, induce or attempt to perform or induce an abortion unless the physician or the referring physician has first made a determination of the probable gestational age of the unborn child. In making that determination, the physician or referring physician shall make any inquiries of the pregnant woman and perform or cause to be performed all medical examinations, imaging studies and tests as a reasonably prudent physician in the community, knowledgeable about the medical facts and conditions of both the woman and the unborn child involved, would consider necessary to perform and consider in making an accurate diagnosis with respect to gestational age.
B. Except in a medical emergency, a person shall not knowingly perform, induce or attempt to perform or induce an abortion on a pregnant woman if the probable gestational age of her unborn child has been determined to be at least twenty weeks.
The stated purpose of the Act is to “[p]rohibit abortions at or after twenty weeks of gestation, except in cases of a medical emergency, based on the documented risks to women’s health and the strong medical evidence that unborn children feel pain during an abortion at that gestational age.” H.B. 2036, sec. 9(B)(1). The Act lists a number of legislative findings in support of the assertions in the purpose provision, with citations to medical research articles. See H.B. 2036, sec. 9(A)(1)–(7).
After Nebraska passed the first of these kinds of bills in 2010, Dr. Sadath Sayeed and I wrote about them in Fetal Pain, Abortion, Viability, and the Constitution, for the peer-reviewed Journal of Law, Medicine and Ethics in 2011 on the constitutionality and normative justifiability of these statutes. This is the first case of one of these statutes to reach a Circuit court decision on the merits, so I thought I would offer some thoughts. This will be from the perspective of a scholar not an advocate, though given that I have argued that these statutes should be held unconstitutional I don' t pretend to be disinterested.
Judge Berzon's opinion for the panel takes about as strong a stance against these statutes as possible. She presents this as an easy somewhat "paint-by-numbers" case of unconstitutionality based on prior precedent. Her logic is Roe and Casey make viability an absolutely cut-off for restricting abortions. Viability has to be decided according to the Court by physicians in individual cases. This is a restriction and not a regulation of abortion. The restriction covers pre-viability fetuses. Therefore it is unconstitutional.
That is strongly put, but only by completely ignoring the fetal pain aspects of the case. Indeed to read her opinion one would scarcely know that fetal pain is at issue. As we argued in our article, and I put it even more succinctly in an op-ed in the Washington Post last year:
The fetal-pain bills do not directly challenge the Supreme Court’s judgment. Instead, they assert a new theory for outlawing abortion. The Nebraska bill states that “by twenty weeks after fertilization there is substantial evidence that an unborn child has the physical structures necessary to experience pain.” The legislatures passing these laws say that preventing this pain is a compelling state interest that justifies prohibiting abortion.
Hence, the loophole: Although the Supreme Court has identified preserving fetal life after viability as a compelling interest, the justices have never said it is the only one.
These statutes might be thought of as asking the courts to find that preventing pain to fetuses is also a compelling state interest. Alternatively, states may argue that, although preventing pain is not compelling on its own, it becomes so when combined with the state’s interest in preserving fetal life before viability.
Thus, I think Judge Berzon writes a strong opinion only by blinding the reader to what is new and difficult here.
By contrast, I think Judge Kleinfeld's concurrence does a better job of wrestling with the hard issues. His opinion echoes four points we make in our article:
1. On pp. 39-40, Viability is a bad line from a normative and constitutional perspective but it is one we are stuck with.
2. Even though we think the science is against finding fetal pain in the meaningful sense (the experience of pain), as we worried courts might, he seem inclined to give significant deference to the legislature on this point (page 43).
3. If the conflicting science really did bear out the fact of fetal pain, the state could require fetal anesthesia as its regulation rather than banning these abortions altogether (as he puts it on pp.36-37 "were the statute limited to protecting fetuses from unnecessary infliction of excruciating pain before their death, Arizona might regulate abortions at or after 20 weeks by requiring anesthetization of the fetuses about to be killed, much as it requires anesthetization of prisoners prior to killing them when the death penalty is carried out"). We said as much, so clearly *I* think that is right, although his opinion does not tangle with a hard point we raised in the article of whether the statute should be seen as aiming to prevent pain to a fetus versus treating the capacity to feel pain as a marker of personhood.
4. Even if fetal pain is real and unavoidable, that does not mean the Constitution permits the state to weigh the prevention of that state above a woman's right of bodily integrity. Kleinfeld puts the point at once a little less forcefully and much more graphically than we did on page 43: "But protection of the fetus from pain, even the pain of having a doctor stick scissors in the back of its head and then having the doctor “open up the scissors [and stick in] a high-powered suction tube into the opening, and suck the baby’s brains out” was not enough in Gonzales to justify a complete prohibition."
What happens next? Rehearing en banc is possible but my guess is it won't happen. I also do not think the S. Ct will take cert at this stage, and will instead wait for a Circuit split or at least another one of these cases to make it to the Circuit stage before doing so. That said it does worry me in terms of the likelihood of a cert grant that Judge Berzon's opinion makes so much of the idea that viability is an ABSOLUTE dividing line established by the Supreme Court's prior precedent, a view I could easily see several Justices wanting to "correct".
- I. Glenn Cohen
Sunday, May 12, 2013
Marty Redish and A Jurisdictional Perspective on New York Times
The latest issue of the Northwestern Law Review contains the Martin H. Redish Festshcrift, a symposium celebrating Marty's 40 years on the Northwestern faculty and 40 years of influential scholaship in Civ Pro, Fed Courts, and First Amendment. The live symposium last March featured top scholars in all three areas, as well as a panel of Marty's former students who have gone (or are thinking about going) into law teaching.
My contribution, A Jurisdictional Perspective on New York Times v. Sullivan, explores the subject-matter jurisdiction controversies that affected how New York Times was litigated and, in a sense, how it was decided. I am glad I finally got to write this piece, both as a fitting tribute to Marty and in anticipation of Sullivan's 50th anniversary next year.
Here is the abstract:
New York Times v. Sullivan, arguably the Supreme Court’s most significant First Amendment decision, marks its fiftieth anniversary next year. Often overlooked in discussions of the case’s impact on the freedom of speech and freedom of the press is that it arose from a complex puzzle of constitutional, statutory, and judge-made jurisdictional and procedural rules. These kept the case in hostile Alabama state courts for four years and a half-million-dollar judgment before the Times and its civil-rights-leader co-defendants finally could avail themselves of the structural protections of federal court and Article III judges. The case’s outcome and the particular First Amendment rules it established are a product of this jurisdictional and procedural background.
Martin H. Redish has produced a lengthy record of influential and cutting-edge scholarship on civil procedure, federal jurisdiction, and the First Amendment, and has been a sharp and unforgiving critic of many of the jurisdictional rules that kept the case out of federal court for so long. It is appropriate to recognize Redish’s scholarly legacy by examining this landmark case, which sits at the intersection of his three scholarly pursuits and demonstrates why many of his arguments and criticisms are precisely correct.
Wednesday, May 08, 2013
“Why is a big gift from the federal government a matter of coercion? ... It’s just a boatload of federal money for you to take and spend on poor people’s health care” or the mysterious coercion theory in the ACA case
At oral argument in NFIB v. Sebelius, the Affordable Care Act (ACA) case, Justice Kagan asked Paul Clement:
“Why is a big gift from the federal government a matter of coercion? It’s just a boatload of federal money for you to take and spend on poor people’s health care. It doesn’t sound coercive to me, I have to tell you.”
The exchange is all the more curious because, despite
her scepticism, Kagan signed on to the Court’s holding that the Medicaid
expansion in the ACA was coercive, as did all but two of the Justices (Ginsburg and Sotomayor). What happened? I try to answer this question, suggesting the court misunderstood what makes an offer coercive, in this article published as a part of a symposium on philosophical analysis of the decision by the peer-reviewed journal Ethical Perspectives.
First a little bit of background since some readers may not be as familiar with the Medicaid expansion part of the ACA and Sebelius: The ACA purported to expand the scope of Medicaid and increase the number of individuals the States must cover, most importantly by requiring States to provide Medicaid coverage to adults with incomes up to 133 percent of the federal poverty level. At the time the ACA was passed, most States covered adults with children only if their income was much lower, and did not cover childless adults. Under the ACA reforms, the federal government would have increased federal funding to cover the States’ costs for several years in the future, with States picking up only a small part of the tab. However, a State that did not comply with the new ACA coverage requirements could lose not only the federal funding for the expansion, but all of its Medicaid funding.
In Sebelius, for the first time in its history, the Court found such unconstitutional ‘compulsion’ in the deal offered to States in order to expand Medicaid under the ACA. In finding the Medicaid expansion unconstitutional, the Court contrasted the ACA case with the facts of the Dole case, wherein Congress “had threatened to withhold five percent of a State’s federal highway funds if the State did not raise its drinking age to 21.”In discussing Dole, the Sebelius Court determined that “that the inducement was not impermissibly coercive, because Congress was offering only ‘relatively mild encouragement to the States’,” and the Court noted that it was “less than half of one percent of South Dakota’s budget at the time” such that “[w]hether to accept the drinking age change ‘remain[ed] the prerogative of the States not merely in theory but in fact’.”
By contrast, when evaluating the Medicare expansion under the ACA, the Sebelius Court held that the
financial “inducement” Congress has chosen is much more than “rela- tively mild encouragement” – it is a gun to the head [...] A State that opts out of the Affordable Care Act’s expansion in health care cover- age thus stands to lose not merely “a relatively small percentage” of its existing Medicaid funding, but all of it. Medicaid spending accounts for over 20 percent of the average State’s total budget, with federal funds covering 50 to 83 percent of those costs [...] The threatened loss of over 10 percent of a State’s overall budget, in contrast [to Dole], is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion.
I argue that this analysis is fundamentally misguided, and (if I may say so) I have some fun doing it! As I summarize the argument structure: If the new terms offered by the Medicaid expansion were not coercive, the old terms were not coercive, and the change in terms was not coercive, I find it hard to understand how seven Supreme Court Justices could have concluded that coercion was afoot; the only plausible explanation is that these seven Justices in Sebelius fundamentally misunderstood coercion. This misunderstanding becomes only more manifest when we ask exactly ‘who’ has been coerced, and see the way in which personifying the States as answer obfuscates rather than clarifies matters.
The paper is out, but I will be doing a book chapter adapting it so comments still very much approeciated.
- I. Glenn Cohen
Tuesday, May 07, 2013
"Constitution USA" with Peter Sagal"Constitution USA" (more here) premieres tonight, on your local PBS station. It's hosted by Peter Sagal, of "Wait Wait . . . Don't Tell Me!", and includes bits with a number of law profs (including me, I'm afraid -- that's a whole lotta bald!) about speech, federalism, civil rights, religious liberty, and lots of other things. I've seen some clips, and the show looks to be a lot of fun! Check it out, tell your students, etc., etc.
Saturday, May 04, 2013
What Rational Basis Review Really Means
Thank you to Dan and the rest of the Prawfs regulars for having me back! I'll be blogging lightly for the next few days due to other commitments, but I hope to make up for it later in the month. Most of my posts will deal with individual constitutional rights.
Meanwhile, I came across a case the other day that I thought might interest my fellow constitutional law professors, particularly those who are, at this busy time of year, immersed in answering student questions or designing their final exams. It's not a new case, but it helps reveal exactly how little is required for the government to survive rational basis review.
The case is an unpublished case from the Second Circuit -- Jordan v. City of New London, 225 F.3d 645, 2000 WL 1210820 (2d Cir. Aug. 23, 2000). There, the Second Circuit rejected the claims of a man who was barred from becoming a police officer because his score on an intelligence test was too high. He scored 33 points -- the equivalent of an IQ of 125 -- and the New London Police Department interviewed only candidates whose scores ranged from 120-127 "to prevent frequent job turnover caused by hiring overqualified applicants." The city's argument was that high-scoring prospective officers are more likely to become bored quickly and move on to other jobs, thereby wasting the resources that were invested in their training.
The Second Circuit held that even in the absence of a proven statistical correlation between high scores and turnover resulting from low job satisfaction, the city was entitled to rely on materials from the test-maker that said such a relationship existed or might exist, even though those materials themselves also cited no evidence of such a relationship. Moreover, the Second Circuit did not publish the case, suggesting that it viewed its decision as uncontroversial.
The purpose of my post isn't to agree or disagree with the result. It's simply to provide (another) example professors might use to demonstrate how much support courts require in order for the government to survive rational basis review. And the answer appears to be: not much.
Monday, April 29, 2013
First Amendment on campus
Here are a couple of stories about the First Amendment on campus. Not trying to draw broad conclusions here, merely offering anecdotes.
The first occurred right here at FIU. The Beacon, the campus newspaper, reports on a class called "LGBT and Beyond: Non-Normative Sexualities in Global Perspective," whose assignments included marching in the Miami Beach Gay Pride Parade (the university entered a float). The article did not indicate whether any students objected to that assignment or how it was handled; one student is interviewed who opposes marriage equality, but it is not clear if he is in the class or has anything to do with the class.
Nevertheless, this sort of assignment raises some dicey issues, were anyone to object. While school curricula need not offer accommodations to students who object to particular assignments on religious grounds, is there a line when those assignments leave the bounds of the classroom and the course and venture into discussions, debates, and activities in the public at large? Alternatively, is there a difference between having to write a paper taking an objectionable position and having to participate physically in an activity that expresses that same position? And how should we handle internships and externships, which straddle the line between the classroom and the broader world and broader public discussion.
My wife teaches social work and encounters (either personally or in stories in the profession) these issues frequently. Social work imposes a code of ethics (to which social work students are expected to abide) requiring them to be educated about and understand "social diversity and oppression" with respect to every group or basis imaginable, which often is interpreted to mean students cannot opt-out of treating or working with objectionable groups or using methods with which they disagree. Most social work programs required courses in "diversity." And internships are a required, central part of social work education, so the issues potentially arise in and out of the classroom. So, for example, one public university settled a case with a student who was disciplined for failing to sign a letter in support of same-sex marriage that was going to be sent out publicly; the religious advocacy group that represented the student urged this class v. broader public line.
For some related thoughts, see this piece by Stanley Fish discussing a controversy at Florida Atlantic University (my neighbor just up I-95) over an assignment purporting to force students to stomp on a paper with Jesus's name or image. Fish mentions a case in which a Mormon theatre student at the University of Utah sued when forced to play a particular role in an acting class exercise that she alleged interfered with her religious beliefs.The second story is from the University of Arizona, where a few students, led by a guy who calls himself "Brother Dean Samuel," counter-protested a Take Back the Night Rally with signs reading "You Deserve Rape" (a closer look at other of Brother Dean's expresion shows that he, not unlike Westboro Baptist, apparently hates everyone who isn't him). His signs received a large above-the-fold story in the Arizona Daily Wildcat, which Brother, of course, gleefully retweeted. There was a tepid statement from the university that the speech is protected and he "has yet to, at this point, violate the student code of conduct."
Actually, the most anger was directed towards the Daily Wildcat for reporting on Brother Dean and giving him the forum he is looking for and would not get, or warrant, otherwise. The paper responded, basically emphasizing the obligation to report bad or unhappy news, the importance of Brandeisian counter-speech, and the fact that ignoring a problem does not make it go away (comparing, e.g., Westboro Baptist, bullying, and Jim Crow). Fair enough as to the Brandeisian point, I suppose. But the third point seems flat wrong, at least as applied to this situation, because their analogies are inapt. In terms of ignorability, there is a fairly obvious difference between an unjust soci0-political system that wields actual political power and negatively affects people's lives and one schmuck who wants to hear himself spout stupid ideas. Reporting on and publicizing the latter, and helping him reach a broader audience with his absurd thoughts, actually gives him power he would not otherwise have. This is not to suggest the paper was wrong to publish the story, but only to suggest that it is not as simple as their statement suggests.
Also, if the idea is to encourage counter-speech, the paper's approach is arguably counter-productive. Suppose a group of students is trying to decide whether to counter-protest. Under the paper's logic, the counter-protest makes this a large Page-1, above-the-fold "story," resulting in greater coverage and dissemination of Brother Dean's stupidity. So perhaps the better approach is for the counter-speakers is to stay home, avoid "creating" a story, and allow Brother Dean to remain ignored, by them and the paper.
Third, back at FIU. I spent this year working on a university committee, lead by the university's general counsel, to make recommendations about new regulations for on-campus demonstrations, in the wake of some conflicts that arose with Occupy here and on other campuses, notably UC. It was a fun experience. But I came away from it convinced of the need to include in undergrad orientation some discussion and education on the role of the First Amendment, public demonstrations, and civil disobedience, particularly on a college campus. Which our students could use. "Freedom of speech is a privilege"? Yeah, a teach-in on the First Amendment may be a good idea.
Thursday, April 18, 2013
Why fan speech matters
If you want proof that sports fan speech matters, that it has strong political content, and that the stands of sporting events are a site for genuine First Amendment activity, look no further than last night's Boston Bruins game, the first game played in Boston since the Marathon bombing.
Sporting events remain the only place in which adults regularly gather and engage in patriotic rituals, so the game marked one of the first ordinary events in which people could come together in an expression of patriotism, support, and healing in the wake of a tragedy. It is a great moment--and also an unquestionably political one and an unquestionably expressive one.
Jurisdiction (of every shape and kind), Merits, and Kiobel
SCOTUS at long last decided Kiobel v. Royal Dutch Petroleum on Wednesday, unanimously rejecting the claim under the Alien Tort Statute. Five justices (via the Chief) went with a no-extraterrotriality approach, while four justices (Justice Breyer for Ginsburg, Sotomayor, and Kagan) urged a more-precise understanding of the ATS as a jurisdictional grant. Importantly for my interests, the Court as a whole tries (and more or less succeeds) in continuing the sharp distinction between merits and jurisdiction under ATS first drawn in Sosa v. Alvarez-Machain, which should apply more broadly and generally.
The majority begins with Sosa and the notion that the ATS is "strictly jurisdictional," that it does not regulate conduct or afford relief, and that it is the federal courts recognizing the cause of action. Awesome.
But then the majority refers repeatedly to actions "brought under" the ATS, a term typically applied to the substantive law rather than the jurisdictional grant (e.g., an "action brought under Title VII" or "an action brought under the Sherman Act"). Further, the presumption of extraterritoriality, which the majority relies on, fits oddly here, since the ATS itself is only granting jurisdiction; extraterritoriality and the presumption against it ordinarily concerns the reach of the applicable substantive law created by a legislature.The answer, I think, comes on p. 8 of the majority slip opinion, which says the following:
The question under Sosa is not whether a federal court has jurisdiction to entertain a cause of action provide by foreign or even international law. The question is instead whether the court has authority to recognize a cause of action under U.S. law to enforce a norm of international law.
In other words, federal courts' authority to recognize causes of action is granted by Congress through the ATS; the courts do not have the inherent authority to create common law causes of action (the way a state court might). Stated differently, the ATS is a jurisdictional grant in two respects: It grants courts adjudicative jurisdiction to hear and resolve certain cases and it grants them prescriptive jurisdiction to prescribe substantive rules of conduct for certain transactions or occurrences. But the latter is limited to causes of action within the scope of the statutory grant itself. Hence the statutory extraterritoriality analysis--if the ATS does not have extra-territorial application (as the Court concludes), then neither can the cause of action created by the courts pursuant to the delegation in the ATS. Thus, the substantive cause of action the court could create under the ATS fails here because the conduct occurred overseas and involved foreign nationals--which sounds like a 12(b)(6) merits dismissal.
Justice Breyer's concurrence uses the word "jurisdiction" (or "jurisdictional") a bit loosely for my taste, so it's hard to know exactly what he is talking about. On pp. 1 and 7 of the slip op., Breyer argues that the statute "provides jurisdiction" (or that he would "find jurisdiction") where: 1) an alleged tort occurs on American soil; 2) the defendant is an American national; or 3) the defendant's conduct substantially and adversely affects an important national interest, including an interest in not becoming a safe harbor for pirates (or their modern equivalent).
The problem is that it is not clear what Breyer means by "jurisdiction" there. Does he mean adjudicative jurisdiction? If so, the third prong (and perhaps the first) bleeds over into the merits of the claim. Whether the defendant's conduct affects a national interest, like whether conduct affects interstate commerce, looks at the real-world conduct itself and thus (at least on my preferred model) should not have anything to do with the court's adjudicative authority. Alternatively, this framing is less problematic if he means, like the majority, prescriptive jurisdiction. That is, the only causes of action a federal court can recognize and attach liability to are those that meet those three elements. I can live with that as a limitation on the court's prescriptive authority and thus on the substance of any claim. But I still would suggest that it is better to describe that as a limitation on the available court-recognized cause of action rather on jurisdiction.
Monday, April 01, 2013
The limits of governmental standing
Having now listened to the justiciability portions of the arguments in Windsor and Hollingsworth, I return squarely to an issue I glanced at here, argued more explicitly in some presentations of that paper, and may hope to return to at some point in the future:
When the government (whether federal or state) is unquestionably the real party in interest in constitutional litigation, why should Article III care who appears as "the government" or who represents (or purports to represent) the government's position and interest? Adverseness, the real concern underlying standing, is present simply because the government is a party to the case. Who (really what part of the government) makes the government's case does not affect adverseness and therefore should not be an Article III concern. It may implicate other constitutional provisions and concerns--the Take Care Clause or the Guarantee Clause--as well placing on governments the burden of legislating and planning for how those representatives will be identified. But the courts really should not care about it fas to the basic demand for a case or controversy.
Tuesday, March 26, 2013
Line of the Day--Non-Marriage Edition
People have been tweeting and writing about various lines to come out of yesterday's arguments in Hollingsworth, whether played for laughs or as portentous. Here's one that slipped in, both because it's not about same-sex marriage or standing and because it's kind of inside baseball:
Early in his argument opposing Prop 8 and arguing that the proponents lacked standing, Ted Olson suggested that a state could appoint a special officer to defend a ballot initiative where elected officials choose not to do so. When Justice Scalia wondered how the governor who refused to defend the initiative can be expected to appoint someone else to do so, Olson responded: "Well, that happens all the time. As you may recall in the case of--well, let's not spend too much time on independent counsel provisions."
Monday, March 18, 2013
Two items of interest involving SCOTUS (not having anything to do with one another, except relating to SCOTUS's docket):
1) The Court today granted cert in Madigan v. Levin, which considers whether state and local employees can bring constitutional claims of age discrimination through § 1983 rather than going through the ADEA. The Seventh Circuit said they could, a departure from several other circuits. But most of those decisions came before SCOTUS' 2009 decision in Fitzgerald v. Barnstable Sch. Comm., where the Court held that a student could bring sexual harassment claims against a school and school officials under both Title IX and the Constitution. Fitzgerald emphasized the differences between the constitutional and statutory claims--including the identities of liable defendants and the applicable legal standards. The Seventh Circuit was the first court to apply Fitzgerald's analysis to the ADEA or other employment discrimination statutes.
The logic of Fitzgerald means the Seventh Circuit should be affirmed. Plus, I spent time in my book on § 1983 litigation discussing Levin as the appropriate application of Fitzgerald to other civil rights laws. I hope the Court doesn't somehow make me look bad on this2) Mike Dorf discusses Holingsworth and Windsor, arguing that these cases are not likely to trigger massive resistance (a la the response to Brown) and thus are not appropriate for Bickelian passive virtues or Sagerian underenforcement. I agree with Dorf that if the Court recognizes a broad right to marriage equality, massive resistance is nearly impossible to imagine. But it is worth considering why.
The key is, what would massive resistance to Hollingsworth look like? Implementing Brown (even if the Southern states had actually tried to implement it in good faith) required a massive restructuring of the state educational system. And faced with resistance, federal courts felt hampered in their ability to compel compliance, given the costs and burdens involved. Whether or not those were legitimate reasons for the courts to stay their hand (either in Brown or later), the concerns are absent as to marriage equality. A decision in Hollingsworth holding that the 14th Amendment requires marriage equality would involve states issuing licenses when people ask for them, without any fundamental change to institutional structures. I suppose all the officials in a state could conspire to not issue licenses to same-sex couples. But any such resistance could be remedied with a simple injunction ordering compliance, an order that federal courts would be more willing to issue and vigorously enforce, since it would not impose great (or, for that matter, any) costs on the state.
Tuesday, March 12, 2013
State courts and the First Amendment
One of the great debates in Federal Courts/Civil Rights Litigation is over parity and whether state courts can or will vigorously protect and enforce federal constitutional rights. Most obviously, Younger abstention--and the criticism of Younger--reflects the divide on this belief.
But consider a case such as People v. Oduwole, in which an Illinois intermediate appellate court (in the rural western part of the state, no less) unanimously reversed a conviction for attempting to make a terrorist threat, where the threat consisted of little more than words scribbled on a piece of paper (he claims they were rap lyrics) and buried in the back of his car. While not explicitly a First Amendment case, the court emphasizes that, in the absence of any substantial step towards threatening someone, Oduwole's "writings, as abhorrent as they might be, amount to mere thoughts." It's not clear that a federal judge, even one steeped in life tenure, guaranteed salary, and the professional orientation of the federal judiciary, could have said it better.
On the other hand, perhaps in federal court the trial judge would have made that statement, rather than having a jury convict in less than four hours and forcing the defendant to appeal a conviction before gaining his release.
Oddball SCOTUS Cases
The purpose of this post is to crowdsource an issue that Suja Thomas has identified.
I got the idea from seeing Suja’s presentation at AALS this year, in which she argued that Twombly, Wal-Mart, and Ricci are oddball cases—cases with atypical facts in which the Court made broad changes to the law in a way that significantly affects cases with more typical facts. She has written an article entitled The Oddball Doctrine: How Atypical Cases Make Bad Law in which she argues that the Court should exercise restraint by not making legal changes in these types of cases. During Suja’s presentation, it occurred to me that the Oddball Doctrine could apply to many of the Court’s recent arbitration decisions.
An example is ATT Mobility v. Concepción, in which the Court enforced a class-action waiver in a consumer arbitration agreement. The arbitration agreement at issue in Concepción strongly favored the consumer – for example, it included a provision (added by AT&T after the Concepcións had filed suit) requiring AT&T to pay $7500 to a consumer if an arbitrator awarded the consumer an amount greater than AT&T’s largest settlement offer at the time of arbitrator selection. Anyone even vaguely familiar with consumer arbitration knows that 99.99% of the time they skew very strongly in favor of the company – not the consumer.
Had the Court enforced a class-action waiver in the far-more-typical consumer-arbitration factual scenario in which the prohibition of a class action makes it impossible for consumers to individually advance their low-dollar claims, the Court would have invited a political (perhaps Congressional) backlash. But by choosing for certiorari that one-in-a-million case in which the class-action waiver favored the consumer, the Court was able to create a broadly applicable legal rule permitting companies to prohibit class actions in all arbitration agreements.
My new article argues that the Supreme Court recently has chosen for its arbitration docket a set of cases with wholly atypical fact patterns in what appears to be a deliberate effort – successful so far – to advance its pro-arbitration policy agenda without provoking a political backlash. See Oddball Arbitration. My question for Prawfsblawg readers is: do you see Thomas’s Oddball Doctrine in other areas of the law?
Wednesday, March 06, 2013
Two current items on the filibuster
Two events have the filibuster, and conversations about filibuster reform, back in the news today. First, Republicans are (silently, of course) filibustering President Obama's nominee to the D.C. Circuit, apparently because she litigated cases that Republicans don't like (specifically against gun manufacturers), which disqualifies her from being a judge. Anyone who did not see this coming after the Democratic capitulation (again!) on filibuster reform is not paying attention. The fact that Carl Levin (as quoted in the linked piece) believed that anything would change shows how much is wrong with the Senate and with the Democratic Party.
Second, Rand Paul (supported by Mike Lee and Ted Cruz) is staging a talking filibuster of the nomination of John Brennan as Director of the CIA. This at least gives some reform advocates some of what they want--the end to silent filibusters and forcing Republicans to take and hold the floor (and the heat) for their delay efforts. Paul has been at it since 11:45 a.m. EST, so just over four hours now. Stay tuned. [Update: Still going as of 11:15 p.m.--coming up on 12 hours. Here is another piece reflecting the "this is the way filibusters ought to be" view]
Further update: It ended around 12:30, after 12 hours and 52--as everyone, incluindg Paul will note, a little more than halfway to Strom Thurmond's record filibuter. This does appear to have been effective at calling attention to the issues Paul wanted to highlight. The press found it entertaining, as did some of the public that pays attention to any of this. But a big part of that might just be the novelty of the talking filibuster. And if the minority had to do this every single time they opposed a court of appeals nominee, the novelty would wear off, particularly for the public and particularly if other business is not getting done. I previously have thought that the mandatory return of the talking filibuster--one of the filibuster-reform proposals that's been made--would be ineffective, actually creating more of a burden on the majority. But perhaps it would be a way to get rid of the routine filibuster (which really is the problem) without having to drastically rewrite Senate rules about what is and isn't a proper filibuster target.
Sunday, March 03, 2013
A symposium on Fleming & McClain's "Ordered Liberty"
Over at Concurring Opinions, there is a very interesting "symposium" going on about Linda McClain and Jim Fleming's important new book, Ordered Liberty. My own first contribution, called "Mutual Adjustment as Merely Congruence Delayed" is here. Among other things, I wrote:
At the end of the day, and at the end of the book, I suppose there’s no avoiding the fact that I continue to have doubts about “constitutional liberalism” as Jim and Linda present and defend it; I continue to think that the Constitution is best regarded primarily, and more prosaically, as a mechanism for (limited-purpose and limited-reach) lawmaking, the operation of which is constrained by “negative” rights-protections; I think that the claims of families, associations, and churches to remain out-of-sync with current political majorities, or with liberalism more generally, are even stronger than Jim and Linda acknowledge; and I think that those scholars who “are preoccupied with the limited institutional capacities of courts” are, well, probably right to be so. But, it probably does not add much to this symposium simply to report my hard-headedness or general reservations.
So, a more focused thought on a particular part of the book: In Chapter 6 (“Conflicts between Liberty and Equality”), Linda and Jim use four familiar cases (Roberts, Dale, Bob Jones, and Christian Legal Society) to “illustrate the struggles between the formative projects of civil society and government and between competing visions of diversity and pluralism.” Fair enough — these case do indeed illustrate these struggles. But, at the end of the chapter, and at the end of book, I didn’t feel like I had been given or had found what I thought was promised, i.e., “a framework for resolving clashes of rights so as to promote ordered liberty and equality citizenship for all.” That is, despite the use of the term “mutual adjustment”, it did not appear to me that what was presented in the concluding pages and paragraphs of the chapter was so much a “framework” for resolving the described clashes through pluralism-appreciating “adjustment” as it was a declaration that the ultimate and to-be-desired resolution of these clashes in favor of the “liberal” position will often be facilitated by “prudential” “interim” strategies like religious exemptions. To be told by the liberal-constitutional state that — not to worry — it is willing to go slow in bringing dissenting or just different associations into congruence will not, I imagine, be very comforting to those who wonder why that state assumes it has the legitimate authority to insist on congruence now or later.
- See more at: http://www.concurringopinions.com/archives/2013/03/mutual-adjustment-as-merely-congruence-delayed.html#sthash.MbEEWvpx.dpuf
Jim and Linda respond to me, here. Time to get to work on a reply!
Wednesday, February 27, 2013
Lyons, Clapper, and types of constitutional challenges
In writing about standing in the context of § 1983 constitutional actions, I have argued that it is easier to get standing to challenge enforcement of a law that regulates citizens' primary conduct than to challenge a law that regulates what the executive can do in the course of investigating and enforcing those laws--that is, the manner in which the executive operates.
This explains, for example, City of Los Angeles v. Lyons. The Court held that an individual lacks standing to challenge police department policies on the use of force (there, it was a particular type of chokehold) during encounters with citizens; it was entirely speculative that the plaintiff would: 1) break some law, 2) be stopped or arrested by police, 3) have the confrontation escalate, and 4) have the chokehold applied by that officer, thus he could not show an injury-in-fact. Compare, for example, a plaintiff who wants to operate a nude-dancing bar challenging a municipal ordinance prohibiting nude dancing; he shows injury by alleging that he owns the bar and wants to have nude dancing but is prevented from doing so by the likely enforcement of the ordinance that directly regulates his primary conduct. The Court is generally more receptive to standing in the latter than the former situation, because the injury is more obvious. The Court accepts as non-speculative that a plaintiff will engage in intended conduct that may violate a direct regulation and, if he does, that regulation will be enforced against him. It is less willing to accept that a plaintiff will engage in conduct that may bring him in contact with the police and thus subject him to the police methods of enforcement or investigation.
Yesterday's decision in Clapper falls on the Lyons side of that procedural line. Section 1881a authorized certain actions by government in the course of investigating overseas misconduct. Just as it was impermissibly speculative that police would stop and choke Mr. Lyons, it was impermissibly speculative that the government would choose to record the plaintiffs' conversations or that FISC would approve that surveillance. The result, of course, is that likely no one has standing to challenge the manner in which the executive investigates or enforces the laws, unless and until a person is actually investigated and subject to those investigative methods.
Clapper is groundbreaking and seems to do something new with standing in its insistence that a plaintiff show surveillance, and thus injury, was "certainly impending." But the context of the case fits fairly neatly in ground that Lyons already had lain.
Tuesday, February 26, 2013
So much for unanimity
Keep with this week's theme of procedure and jurisdiction, SCOTUS today decided Clapper v. Amnesty Int'l., Inc., holding that a collection of attorneys, journalists, and activists lacked standing to challenge the constitutionality of certain surveillance provisions of the FISA Amendments Act of 2008.
The decision was 5-4 along the expected lines. While I stand by my suggestion that most of the Court's recent jurisdiction decisions have been unanimous or close to it, I should have included standing as the exception. There always has been a strong political/ideological valence to standing, particularly as it affects constitutional litigation. Actually, this is what made the birther lawsuits fun, as well as the ACA litigation if the courts had delved into it--standing doctrine, created in cases with plaintiffs trying to litigate "liberal/progressive" constitutional causes, being used to the disadvantage of plaintiffs trying to litigate "conservative" constitutional causes. It would have been interesting to see how the five-justice majority might have responded in that situation.
Monday, February 25, 2013
The "Mini-Cruel and Unusual Punishments Clauses" of the 1783 State Customs Legislation
I thought I would take a break from pissing people off to write about some additional evidence I had never seen before today on the original understanding of the Cruel and Unusual Punishments Clause. This evidence further supports the views that (1) the Clause encompasses a proportionality principle and (2) that proportionality principle takes as its benchmark the punishment norms of the individual States. On April 18, 1783, Congress, under the Articles of Confederation, passed a customs act, imposing duties on certain imports, in order to pay off the country’s war debt. As was required under the Articles, each of the thirteen States then had to pass ratifying legislation in order for the customs act to go into effect. Each of them did so. Interestingly enough, in a majority of the state legislation affirming the new federal customs act, the States inserted what can be called a mini-Bill of Rights. Each of these States apparently recognized that Congress could punish its citizens for failure to pay the new duties. These States inserted a proviso that, in essence, required that Congress bring such an action in a court of that state and follow state procedures: there was a clause requiring warrants to search dwelling houses, trial by jury, and so forth. Six of these States – Georgia, Massachusetts, New Hampshire, Pennsylvania, Rhode Island, and South Carolina – included a “mini-Cruel and Unusual Punishments Clause.” Virginia included a “mini-Excessive Fines Clause” but not a “mini-Cruel and Unusual Punishments Clause.”
Pennsylvania and Rhode Island forbade Congress from imposing “unusual punishments” for violations of the new act. Read in the context of a paragraph that generally requires Congress to follow state criminal procedure (e.g., “the proceedings shall be in the usual form”), and to bring the action in a state court, it is certainly reasonable to read “unusual punishments” as referring to what is usual or unusual in that State. This is greatly strengthened by the language used by Georgia, Massachusetts, New Hampshire, and South Carolina: each forbade the infliction of punishment that is “cruel or unusual in this state” (or in Massachusetts, “in this Commonwealth).
This further supports the notion that when state ratifying conventions began proposing amendments to the Constitution a scant four years later, they used “cruel and unusual punishment” (or “cruel or unusual punishment”) as a shorthand way of limiting federal punishments to that which was “cruel and unusual” (or “cruel or unusual”) in each particular State. At the very least, it supports the notion that this was a widely shared understanding. Of course, critics will say that the whole point of the Constitution was to make federal laws uniform in a way that they were not under the Articles. But the point of the Bill of Rights, as I have argued, was to push back on that enforced uniformity and retain for the States a measure of autonomy that was otherwise being taken away by the Constitution, including autonomy on setting the outer bounds of criminal punishment for offenses punishable by the States.
At the same time, this new evidence is pretty strong evidence that “cruel and unusual” and “cruel or unusual” were used in the 1780s to refer to punishments that were disproportionate. That is to say, it refutes the view held by Justices Scalia and Thomas that the language was understood as covering only methods of punishment, those that inflict a tortuous or lingering death or inflict pain for pain’s sake. One can scarcely imagine that the six States mentioned were really concerned that those evading the new customs laws would suffer the same treatment that awaited traitors under English common law – partial hanging, disembowelment while alive, drawing and quartering, and beheading – or that Congress would devise an ingenious and painful non-capital punishment for the loathsome smuggler. To the contrary, my understanding is that criminal prosecutions for smuggling were rare; the government was typically content with civil forfeiture of the goods and the vessel in which they were found. It thus appears more likely that these States were concerned that, if smugglers were to be punished, they would be punished more harshly than they could be under state law but with something short of a tortuous, painful death. This is especially so when considering that some of the legislation further limited the penalty to forfeiture of the goods and vessel “in cases of prosecution in rem.” Indeed, that is probably why Virginia included only a mini-Excessive Fines Clause, and six States apparently did not consider the danger serious enough even to include any such provision.
Political Participation and Libel Law
The news today is that Sheldon Adelson is suing the Wall Street Journal for libel. So here's my question. If Adelson is deemed a public figure because of his very public involvement in electoral politics, then does imposition of the actual malice standard constitute a burden on that political participation, in violation of the First Amendment? My intuition is that that can't be right: the whole question of whether someone is a public figure turns largely on whether the person has injected himself into the public discourse. Since presumably you do that by engaging in speech, it can't be an unconstitutional burden on free speech to impose a higher liability standard: if it were then much of the "public figure/higher fault standard" structure is suspect.
But then what about Davis v. FEC, the "Millionaire's Amendment" case? If Davis stands for the proposition that a person's spending of his own money to influence the outcome of an election can't trigger burdens on that person or his speech (or, rather, that such burdens have to satisfy a high standard), then isn't that what's going on here? Adelson participates in politics -- that leads to his becoming a public figure -- which in turn leads to his having to satisfy the actual malice standard -- that leads to any alleged libel likely going uncorrected.
Or is the answer that libel is different because the plaintiff, by being a public figure, can vindicate the reputational interest that libel is designed to protect to begin with? So in that case Adelson doesn't lose anything by virtue of his having a tougher time in court -- he can protect his reputation through self-help, and that's all that libel law ultimately cares about. If that's the right analysis then I'd be tempted to ask by Davis himself couldn't just spend his own money and get his message out: that's his self-help, which remains in competition with the opposing (or in this case, libelous) speech that stays out there in the market. And in both cases, the end result is more speech. But that's a more detailed argument, that gets to the merits (or lack thereof) of Davis itself.
Thursday, February 21, 2013
Federalism Battles in the War on Drugs: Cruel and Unusual Punishment
Given the advent of state legalization of marijuana for medicinal – and now in two States, recreational – purposes, the federalism battles in the war on drugs can be expected to grow in intensity. In President Obama’s first term, the U.S. Attorneys in California took an aggressive stance on medical marijuana facilities, threatening their owners and, in some cases, even the landlords that rented them space, with criminal prosecution under federal law. Now some of those chickens have come home to roost. Last month, California medical marijuana dispensary operator Aaron Sandusky received ten years in federal prison.
Let that sink in for a moment: a decade in prison for conduct that is perfectly legal under state law.
Cases like Sandusky’s form part of the reason I have called for a more robust reading of the Eighth Amendment as it applies in federal cases. That last sentence, a stickler might note, is redundant: the Eighth Amendment applies only in federal cases. But we have gotten so used to speaking of the Eighth-Amendment-as-incorporated-by-the-Fourteenth as simply “the Eighth Amendment” that I feel the caveat is necessary. Indeed, that is part of the problem I have identified. The “Eighth Amendment” standard the Supreme Court has developed in non-capital cases stems entirely from state cases: Rummel v. Estelle, Hutto v. Davis, Solem v. Helm, Harmelin v. Michigan, Ewing v. California, and Lockyer v. Andrade. That is to say, they are Fourteenth Amendment cases and not, strictly speaking, Eighth Amendment cases (and I think that, as attorneys, we should always be “strictly speaking”). That standard is extraordinarily deferential to legislative decisions. In effect, if the legislature could reasonably think that the carceral sentence in question served one of the goals of punishment – deterrence, incapacitation, rehabilitation, or retribution – the punishment meets constitutional requirements. But that standard is so deferential to legislative judgments in large part because it comes from cases involving state legislative judgments. There is a heavy dose of federalism in the cases listed above.
Such deference is misplaced when it comes to the judgment of Congress, for it was precisely the judgment of Congress – not the executive or judicial branch – that the Cruel and Unusual Punishments Clause was meant to check. We know this because, for one thing, the Eighth Amendment (like most of the Bill of Rights) was originally going to be placed within the text of Article I before Congress decided to list the amendments out as addenda to the Constitution. For another, the few statements made during the ratification period about the need for a clause banning cruel and unusual punishments were aimed at the danger of Congress creating such punishments. I do not pretend to know precisely what the framers and ratifiers of the Eighth Amendment thought “cruel and unusual punishments” were. But I do think they would be stunned to find out that, in essence, Congress can punish in any way that it wants.
Once we determine that the Cruel and Unusual Punishments Clause was originally understood as containing some requirement of proportionality, and the overwhelming evidence is that it does (I will explain in a later post why the Scalia-Thomas view to the contrary is erroneous), the difficult task is determining the benchmark: to what do federally imposed punishments have to be proportionate? For me, especially given the states’-rights orientation of the Anti-Federalists, who demanded the addition of the Bill of Rights, the best answer is the punishment meted out by the States. That may mean that federal punishments for an offense cannot exceed: how the States generally punish for that offense; or the harshest punishment meted out by any State for that offense; or how that offense is punished by the State in which the crime occurred. I prefer the last option for reasons explained in my work – it is probably most in line with what the Anti-Federalists were thinking. It is also easily administrable, at least compared to the first option.
Mr. Sandusky’s case represents an extreme example, where his actions do not even constitute an offense under state law. But his case also fits within what I think the Anti-Federalists were most afraid of. One wishes we could just ask George Mason or Patrick Henry: does your Cruel and Unusual Punishments Clause forbid Congress from punishing someone who committed an act that the State could have criminalized but chose not to? I think I know what they would say.
The Rational Basis Mini-War of OT 1980
Rational basis review often seems to be a stepchild of equal protection scholarship, except when scholars perceive that the court in the given case is really not doing rational basis review at all. (The standard examples of such covert heightened review are City of Cleburne v. Cleburne Living Center and Romer v. Evans.) This decision to largely ignore rationality review is unfortunate. The requirement that government act only in pursuit of a legitimate, public-regarding purpose, and that it be reasonable when it does so, is one of the foundational rules of the Fourteenth Amendment.
Of course, aggressive judicial policing of that requirement triggers allegations of judicial legislating, Lochnerizing, and other epithets. And it's standard learning that, as a historical matter, judicial withdrawal from the practice of second-guessing garden-variety social and economic regulation has included a refusal to engage in serious rationality review -- at least when that review is not a cover for heightened scrutiny, as is often suspected of Cleburne and Romer.
But there's more that can be said, and should be said. Justice Stevens had some creative thoughts about rational basis review, as I discuss in this paper from a couple of years ago. But other justices did, too. Most notably, Justice Brennan and Justice Rehnquist engaged in fascinating little mini-war over the correct approach to rational basis review, and the components of such review, in the OT 1980 term. In December 1980, in Railroad Retirement Bd v. Fritz, the two justices squared off over Justice Brennan's famous description of Justice Rehnquist's extremely deferential style of rationality review as "tautological." The latter's oh-snap conclusion to his footnote engaging Justice Brennan's approach -- "The comments in the dissenting [Brennan] opinion about the proper cases for which to look for the correct statement of the equal protection rational-basis standard, and about which cases limit earlier cases, are just that: comments in a dissenting opinion." -- is by itself worth inclusion in a casebook as an exemplar of, to pardon the pun, non-rational argumentation. Still, Justice Rehnquist had a point: Justice Brennan's argument for testing legislation against the legislature's actual purpose created difficult practical and conceptual problems, convincing even an otherwise-sympathetic Justice Stevens to conclude that Brennan's approach was not workable.
The war continued on two fronts that term. In Schweiker v. Wilson, decided in March of 1981, it was Justice Powell's turn to take up the mantle of ratcheting rationality review up a notch. Joined by Justice Brennan, Justice Marshall (who had joined Brennan's Fritz dissent) and the previously-sympathetic Justice Stevens, he essentially agreed with Brennan's argument for heightened fit review when the legislature's goal is not apparent from the legislative history. A few weeks later Justice Brennan himself renewed a version of the fight, in the dormant commerce context. In an opinion concurring in the decision to strike down the Iowa law in Kassel v. Consolidated Freightways, he argued that the law should be evaluated based on the legislature's stated purpose, rather than the purpose furthered by the state's lawyers in litigation defending the law. Again Justice Marshall came with him, but this time he had no other allies. Justice Rehnquist, dissenting, renewed his Fritz attack on this sort of more intrusive review. Again using colorful language, and citing their battle a few months before in Fritz, he wrote that Brennan's argument "calls to mind what was said of the Roman Legions: that they may have lost battles, but they never lost a war, since they never let a war end until they had won it."
But Rehnquist's analogy to the never-say-quit Roman legions seems to have been inapt. The mini-war over rational basis review appears (at least at first glance) to have ended with the OT 1980 term. As discussed in the paper I referenced earlier, Justice Stevens went on to think creatively about garden-variety rational basis review. And remants of the debate resurfaced in cases like Nordlinger v. Hahn. But I'm not sure Justice Brennan ever re-engaged. If my initial impression is correct, this war was intense, and implicated some pretty fundamental issues in American constitutionalism, but burned itself out quickly. Like I said, it has the makings of a fascinating little story.
Wednesday, February 20, 2013
The Rehnquist Conversion
Thinking about the Court's cert. grant yesterday in McCutcheon (the campaign contribution case) reminded me of a question I've wondered about for a while, but have never researched: Chief Justice Rehnquist's conversion to a view of the First Amendment hostile to campaign finance regulation.
It's easy, with the line-up ever since at least McConnell v. FEC (the 2003 case upholding most of McCain-Feingold), to see campaign finance issues as an issue that cuts precisely along the Court's liberal-conservative faultline. But it wasn't always that way. On the liberal/moderate side, Justice White was always sympathetic to regulation, Justice Marshall became more sympathetic, while Justice Brennan tried to split the baby, most notably in FEC v. Massachusetts Citizens for Life but also more fundamentally in Buckley v. Valeo (if the speculation is correct that Justice Brennan wrote the key parts of the campaign finance part of that per curiam opinion). On the other side of the ledger, Justice Scalia was never sympathetic to such regulation, while -- to the point of this post -- then-Justice Rehnquist appeared to have no problem with most of that regulation. He dissented in First National Bank of Boston v. Bellotti, the 1978 case that in the modern era established at least the abstract proposition that corporate political speech was protected. He wrote the majority opinion in FEC v. National Right to Work Committee, the 1982 case that endorsed congressional concern with corporations using "war chests" to influence the political process, and deferring to congressional judgments about the best way to regulate them. He wrote the dissent in the aforementioned Mass. Citizens for Life, arguing -- contra Brennan -- that even a pure advocacy corporation could be subject to limits on its political spending. And he joined Justice Marshall's 1990 opinion in Austin v. Michigan Chamber of Commerce, the case that became the whipping boy for First Amendment-based attacks on campaign finance regulation until it was largely overruled in Citizens United. But by McConnell Chief Justice Rehnquist had changed, firmly joining the anti-regulation bloc.
So what happened? Was his shift just an artifact of the jurisprudential politicization of this issue after Austin? Did he ever explain it? Maybe this question has been asked and answered -- I have not done any research. But it's surely one of the more fundamental issue shifts a justice has performed in the modern era. And, given the 5-4 nature of the campaign finance issue since McConnell, it's also one of the most consequential.
Tuesday, February 19, 2013
Dorf on cameras in the courtroom
Mike Dorf offers some thoughts on cameras in the courtroom (particularly SCOTUS and appellate courts), in light of Justice Sotomayor's recent announcement that she would not support allowing cameras into oral argument (a switch from the position she took during her confirmation hearing). He does a good job rejecting the arguments that people will not understand what is going on and that the justices and/or attorneys will grandstand for the cameras. He also adds a nice First Amendment twist--at the very least, the burden of persuasion that these harms may occur rests with the opponents of cameras (the "censors") rather with than the proponents of cameras. I had not thought of that in my prior comments, but it is a great point.
Monday, February 18, 2013
Why no First Amendment?
So far this term, the Supreme Court has only one First Amendment case on its docket--Agency for International Deveopment v. Alliance for Open Society International, Inc., which considers whether a federal law requiring organizations to explicitly oppose prostitution and sex trafficking as a condition for receiving federal funds to provide HIV and AIDS programs overseas. This contrasts with the previous years of the Roberts Court, which had seen a general uptick in First Amendment cases from the late Rehnquist Court, to the tune of 10-15 cases per year.
Any thoughts, speculation, guesses, or general spitballing as to the drop-off this term? One-year fluke? No cert-worthy cases? Has the current Court reached a general consensus on First Amendment (at least Free Speech Clause) matters for the moment?
I participate in an annual end-of-term panel on the Court's First Amendment cases and the panel organizers last week circulated an email wondering what we should talk about (not sure we can get two hours on whether AIDS prevention programs are government speech for Rust purposes). One possibility is to try to speculate on what exactly is going on this year.
Update: And as if on cue. The case likely will be for next term, however.
Thursday, February 14, 2013
Curbing Our Enthusiasm: Do We Need Conservative Chaperones at the Progressive Party?
My friend Peter Berkowitz, a scholar at Stanford’s Hoover Institution, has written a self-help book for conservatives. In Constitutional Conservativism, just published by Hoover’s own press, Berkowitz argues that conservatives can regain coherence and relevance as a political force through repositioning themselves as the voice of moderation and restraint in public life. But, rightly, Berkowitz insists that conservatives need first to moderate themselves in order to claim justly that they can counterbalance the supposed excesses of progressivism. Thus, to stake the territory of moderation, conservatives must abandon “the attempt to dismantle or even substantially roll back the welfare and regulatory state” and “refrain from attempting to use the federal government to enforce the traditional understanding of sex, marriage, and family.”
This may seem like just another pitch that the Republican Party ought to recapture the political center. But Berkowitz grounds his argument in a conception of conservativism (and progressivism) that he finds, above all, in Edmund Burke. He may well overestimate the extent to which Burke’s attack on the fanaticism of the French revolutionaries can be applied to American progressives. But in rather anti-Burkean fashion, Berkowitz tells American conservatives that they need to get a theory before they can get moderation, whereas Burke himself tended to identify political theory with political immoderation. Of course, Burke was theorizing in his very attack on theory, and awareness of this paradox permeates the fine, illuminating treatment of Burke’s ideas in Constitutional Conservativism.
According to Berkowitz, the moderation taught by Burke consists in an awareness of the human costs and risks involved in violently breaking with tradition, of seeking perfection rather than reasonable improvement in laws and society, and of being unwilling to tolerate compromise, error and even an element of abuse and injustice in political life. But to be true to his own objection to the universalism of theory (and Berkowitz notes this) Burke has to admit that there are times and places where only sweeping change or radical upheaval can establish or re-establish a healthy polity (“as a last resort”). Is it possible that the New Deal and the Sixties (where the standard conservative narratives most liken American progressives to Burke’s Jacobins) were two such moments of necessary transformative politics? And transformative politics inevitably gives rise to hopes that cannot fully be satisfied, to expectations that will be not met. As Tocqueville observed, “the generation that witnesses the end of a great revolution is always anxious, discontented and sad.” Was the retrenchment represented by Reaganism in the US built so much on a conservative legacy of political moderation as on the exploitation, in various ways, of post-Sixties depression or disappointment? The question is whether and how one distinguishes political moderation from mere disillusionment with political idealism.
Berkowitz, who, cautions against viewing compromise as an end in itself, does not want to dispense with political idealism. He is only against conservative political idealism. While admirable as personal values or social norms, respect for private property, free enterprise, the traditional family, piety etc., are nevertheless not themselves suitable as political ideals. It is just that they are useful if not indispensable for checking or moderating progressive political idealism when it veers too far in the direction of overbearing governmental bureaucracy or secular social engineering. In sum, conservatives are valuable because they know too much of a good thing when they see it. And that means that progressivism is, in fine, a good thing.
But is it correct that we progressives need conservatives as our chaperones? Though reviled by conservatives, were not FDR and more recently Ted Kennedy masters of compromise and coalition-building, knowing when to push forward and when to back off? And what of Bill Clinton? The jury is out but I venture Obama will prove no slouch either as a practitioner of prudent progressivism.
As for theory, there is a strong case that the progressive Montesquieu is a sounder source of political moderation for progressives than any conservative thinker. This suggestion is supported by Berkowitz’s own turn in his argument from Edmund Burke to the framers. Those (according to Berkowitz) consummate practitioners and expounders of political moderation were also, and especially the greatest of them, revolutionaries—establishing, in most un-Burkean fashion, a constitutional order on the rights of man and the abstract principles of self-government.
And they were students of Montesquieu. As noted, Berkowitz has difficulty articulating any independent political ideal or value for which moderation stands-he is constantly presenting it as a negative principle of necessary constraint or limitation on excess. But Montesquieu’s grounding of political moderation in gentleness and unprejudiced understanding does connect moderation to a positive conception of human goodness. I venture that Montesquieu comes closer to the spirit of Berkowitz’s idea (and to Peter as I know him as a person, I might add) than Burke’s idealization of the actual, which, as Leo Strauss very perceptively noted in Natural Right and History, points toward that fateful replacement of G-d by History on which the worst excesses of left and right in the last century were built.
Wednesday, February 13, 2013
Federal Gun Control and Local Law Enforcement
In the past few weeks, since President Obama has proposed new federal gun legislation, there has been a spate of statements issued by local law enforcement officials that they will refuse to enforce any federal gun control laws that they deem to be unconstitutional. Most but not all of these officials are sheriffs and most but not all are in the southern and western States. This has led to a spate of news stories in the mainstream media, suggesting or stating explicitly that there is something untoward or unusual about local officials declaring that they will not enforce a federal law. This local piece, on this letter from Boone County, Kentucky Sheriff Michael Helmig, is typical. Sheriff Helmig’s letter states: “I do not believe the Federal Government . . . has the right to dictate to the states, counties or municipalities any mandate, regulation or administrative rule that violates the United States Constitution . . . .”
But, as my colleague John Bickers points out in the news piece, Sheriff Helmig is attacking a straw man. Everyone agrees that the federal government cannot “dictate” to local state actors that they enforce any federal law, irrespective of whether the underlying law is constitutionally suspect. The very act of forcing local officials to enforce federal law itself would be unconstitutional under the anti-commandeering principle.
So is all this – the sheriffs’ letters and the media’s reportage of them – much ado about nothing? Well, yes and no. Although local law enforcement officials cannot, consistently with the Constitution, be conscripted to enforce federal law, they can and often do participate voluntarily. To give just one example, enforcement of federal narcotics laws often involve state and federal law enforcement working together. But pretending that they can be required to enforce federal law and that they will refuse to enforce this law as a matter of principle makes them appear courageous and plays better with the voters than admitting that they can always pick and choose which federal laws to help enforce. Likewise, the media’s portrayal of obstinate southern and western lawmen defying federal authority is a much more interesting and familiar tale for their readers than the true storyline.
Saturday, February 09, 2013
What is the Holding of Baze v. Rees?
One of the skills I try to get my students to practice in Criminal Procedure and my death penalty seminar is to extract the holdings of Supreme Court cases where there is no majority opinion. The Supreme Court’s Marks rule says: “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” But sometimes Marks is difficult to apply; Baze v. Rees may be a case in point. In Baze, the Supreme Court upheld the three-drug lethal injection protocol in use in most death penalty states against a challenge that the protocol implicated an unacceptable risk of severe pain if not performed properly. In brief, the protocol calls for the administration of sodium thiopental, which should render the condemned unconscious; then pancuronium bromide, a paralytic that prevents spasms and also stops respiration; and finally potassium chloride, which stops the heart and causes death. The potential danger is that if the first drug is not administered properly, the inmate will not be fully unconscious and will suffer greatly as the pancuronium bromide begins to asphyxiate him and the potassium chloride courses through his veins, causing an intense burning sensation until it finally stops the heart.
Chief Justice Roberts’ opinion, joined by Justices Kennedy and Alito, determined that a method of execution violates the Constitution only if it creates “a substantial risk of serious harm,” and only then if there is an alternative that “significantly reduces” that risk and is both “feasible” and “readily implemented.” Justice Stevens, concurring in the judgment, agreed with this standard, and agreed that the petitioners did not meet it, but cautioned that a case with “a more complete record” on a proffered alternative method could lead to a different result. Justice Thomas, joined by Justice Scalia, concurred in the judgment on the ground that the Cruel and Unusual Punishments Clause is not concerned at all with the mere risk of pain. Rather, according to them, the Clause forbids only the deliberate infliction of pain. Justice Breyer’s concurrence in the judgment was similar to that of Justice Stevens’ in that he focused on the petitioners’ failure to make a sufficient record regarding a proffered alternative method of execution, but he agreed with the more flexible “untoward risk” standard set forth in Justice Ginsburg’s dissent. That dissent, joined by Justice Souter, argued that the Constitution is violated by an “untoward, readily avoidable risk of inflicting severe and unnecessary pain.” That standard is a flexible one whereby even a less than substantial risk of pain could constitute an Eighth Amendment violation if the pain itself were severe enough and the means of avoiding it sufficiently easy. She would have remanded for a determination based on this standard.
The issue of which opinion in Baze represents the holding is critically important. At the time of the Baze litigation, the alternative proposed by the petitioners, a single large dose of sodium thiopental, had never been tested. Today, however, at least five States have adopted the single-drug protocol and it has been used over a dozen times, apparently with no adverse results. But without more proof that a maladministration of the first drug of a three-drug protocol is a substantial possibility, a challenge to the three-drug protocol should meet the same fate as in Baze if Chief Justice Roberts’ opinion were controlling. On the other hand, a challenge today might be successful if something more akin to Justice Stevens’ and Justice Breyer’s opinions were deemed controlling, as they seemed to rely more upon the absence in the record of a legitimate, tested alternative.
At first blush, the Chief Justice’s plurality opinion appears to be the controlling opinion pursuant to the Marks rule: since Justices Thomas and Scalia would find that the Eighth Amendment is not violated unless the State deliberately inflicts pain during an execution, Chief Justice Roberts’ opinion supplies the third, fourth, and fifth votes for affirmance on the narrowest grounds: risk of pain can indeed violate the Eighth Amendment but only if that risk reaches some threshold of substantiality.
But consider what one Justice said during oral argument in a different death penalty case, Kennedy v. Louisiana, ironically on the same day Baze was decided. The issue in Kennedy was whether the Eighth Amendment categorically bars the death penalty for child rapists. A question arose during argument as to which opinion in Coker v. Georgia represented the holding. A plurality of four Justices in Coker had written that the death penalty is categorically barred for rape of an adult woman. Justices Brennan and Marshall each concurred in the judgment based on their view that the death penalty was always unconstitutional. And Justice Powell concurred in the judgment in part and dissented in part based on the view that the death penalty for rape was barred in this case but he would not rule out the death penalty for particularly egregious rapes.
During the Kennedy argument, Jeffrey Fisher, counsel for Kennedy, characterized the plurality opinion in Coker in controlling: it was narrower than the Brennan/Marshall view that the death penalty is always unconstitutional so it represented the narrowest grounds for reversal. But one Justice chimed in with an interesting observation: “That’s [a] strange way of making a majority, isn't it? * * * Two people who think even the death penalty for murder is no good, they're going to form the majority of people who consider whether a lawful death penalty can be imposed for rape. I think at least in those circumstances, you have to discount the people who would not allow the death penalty under any circumstances for any crime.” Prof. Fisher objected: “Well, I'm not aware of any wrinkle in this Court's jurisprudence that says that if a Justice is too far out of the mainstream that their vote is discounted.” The Justice persisted that such a Justice “is not considering the issue that is before the Court. The issue before the Court is whether . . . a permissible death penalty can be imposed for this crime. These parties say there's no such thing as a permissible death penalty. I mean . . . if that wrinkle isn't there, we should iron it in pretty quickly.”
If this reasoning were to prevail, the impact on Baze would be considerable. On this line of logic, one could arguably ignore Justice Thomas’ separate opinion in Baze, joined by Justice Scalia. Since “[t]he issue before the Court is whether” the risk implicated by the three-drug protocol is too high; and Justices Thomas and Justice Scalia “say there’s no such thing as a” risk that’s too high for Eighth Amendment purposes; then “you have to discount the people who would not” look at any risk of severe pain as being too high to violate the Eighth Amendment. Indeed, of all the separate opinions in Baze, Justice Thomas’ is the most “far out of the mainstream.” The dissent is actually closer in character to the plurality opinion, since both recognize the factors that must be taken into account in determining whether a risk of pain during an execution is too high. They simply disagree on how to weigh those factors.
Discounting the views of Justices Thomas and Scalia, Justice Breyer’s opinion actually becomes the controlling one for purposes of the Marks rule. I should say that this does not seem to me to be a good way of approaching the Marks rule, for whether a Justice is “not considering the issue that is before the Court” seems largely dependant on how one frames “the issue that is before the Court.” I should also say that the plurality opinion in Baze appears to me to be the most attractive normatively. Be that as it may, if the approach to Marks discussed at the oral argument in Kennedy has the apparent support of a sitting Justice, perhaps those challenging execution protocols should sit up and take notice.
And the Justice who proposed this interesting way of applying the Marks rule? Justice Scalia, of course.
Monday, February 04, 2013
Westboro Baptist and marriage equality
Jason Mazzone at Balkinization links to an amicus brief filed by Westboro Baptist Church (of "God hates [everyone but us]" and Snyder v. Phelps fame) in the DOMA case--which, he points out, does not actually cite to any provision of the Constitution. And I would add that the Table of Authorities cites fewer cases (8) than Bible verses (35). I've already said that I find the primary merits argument hard to believe or take seriously. Is Westboro's argument really all that much worse?
The government has responsibility to protect the health, safety and welfare of the people. Of all the harms that a society can face, none are worse than incurring the wrath of God by a blatant policy of defiance of and disobedience to His plain standard. This nation was founded on Bible principles, and the laws of America arose from Scriptural precepts. America has erred in making fornication, adultery, divorce, remarriage, abortion-for-convenience-on-demand and sodomy, standard fare in this country. It is time to reverse that course, and for this Court to squarely hold that the governments of America have a compelling interest in upholding traditional opposite-sex marriage, and further in protecting the people from
The summary of the argument is after the jump.
the devastating effects of same-sex marriage. Separation of church and state, while prohibiting government from interfering in issues of doctrine or church governance, does not prohibit the government from promulgating laws that institute the standards of God on moral issues. Just as the government is empowered to outlaw murder, the government is empowered to outlaw same-sex marriage. This nation that God blessed and built into a super power is going to perish if this Court and the governments of this land bless same-sex marriage through government license. WBC pleads for reversal.
Reforming the Pardon Attorney Office: Some Preliminary Thoughts
I'm home now, after a few days in NYC last week, where Eric Johnson (Illinois) and Rachel Barkow (NYU) presented drafts at the crim law theory colloquium. Rachel's cool paper lays out the case for moving control over federal prison, foresenics and clemency policy outside of the DOJ. You can find an early draft on SSRN and I think it's coming out later this year in Va L Rev. The discussion with others about Rachel's paper got me thinking again about the federal pardon office in particular and whether (or how) governments should dispense mercy. Because of the recent NYT editorial on clemency reform, there are a number of folks and organizations urgently interested in reform of the Office of the Pardon Attorney. This is in part because Obama's record on distributing pardons is especially low when compared to other recent presidents. (Rachel's paper provides data on that; former pardon attorney Margy Love has been a one-woman crusader on that front too.) Unlike Rachel or Margy, I won't say Obama's record low number of pardons is necessarily stingy. That conclusion presupposes too much to reach that assessment, though I can imagine I might reach the same conclusion if I had the time to review all the petitions myself.
And that goes to my main point. It seems to me that if we're going to have reform of the Pardon Attorney's office, one thing we should try to do is unpack the reasons for clemency to better facilitate understanding and democratic accountability. Often the word clemency is used in broad-brushed ways, and by using it without care or precision, we lose the opportunity to move the conversation forward in useful ways. Accordingly, if we are going to reform the Pardon Attorney's office, and if states are interested in similar developments, then we should at least do our best to shape sites for clemency in ways that are honest even if they are not meant to do (only) justice.
Specifically, clemency sites like the executive pardon can be used to advance justice in its retributive texture. These are the easier cases for clemency and they arise when executive branch officials have substantial doubts about the accuracy of the conviction now, or perhaps because they believe the punishment is too severe (in relation to the offender's moral or legal desert). When officials are faced with classic Type I errors, these clemency sites are attractive and necessary because of the way in which they can be used to reduce or correct such errors--and they are especially attractive when decisions are subjected to some kind of deferential review--as I have argued.
In addition to promoting justice and correcting injustices, clemency sites like the Pardon Attorney could also be used to advance mercy, understood as I roughly defined it once (somewhat controversially), as leniency motivated by compassion, redemption, grace, caprice or bias. Thus, when pardons are bestowed because of a person's post-conviction heroic deeds, or because Christmas is coming, or because the offender has come to Jesus, or because the person's family is close to the President, then such dispensations of leniency should be identified as mercy with particular explanations offered for the leniency.* Here, the decision is made to extend leniency independent of its putative benefits toward crime control.
Finally, clemency sites such as the Pardon Power could also be used to advance straightforward policy goals regarding individual prevention and crime control. On this view, pardons are a way to address and scale back punishments that are unnecessary with respect to the threats posed by particular offenders. Perhaps this offender is no longer a sex offender threat because he has voluntarily sought chemical castration and otherwise completed all treatments; perhaps that violent offender has become an invalid through an accident he suffered while in prison. With this goal of individual prevention in mind, the Pardon Attorney could be used as a space (especially in a world without parole) to re-assess threats of dangerousness that earlier motivated officials to apply a custodial or otherwise onerous sanction that is no longer required from a social self-defense perspective.
Again, I'm not saying I necessarily endorse or oppose all pardons that are merciful or prospectively utilitarian from an individual prevention perspective, but I know that others are attracted to those kinds of pardons. It seems to me that if we're going to have a pardon attorney perform any role related to remitting punishments, it would be a good idea if we could determine which box the President thought a particular offender's petition for clemency belonged in, and why. I doubt that too many people make their ultimate decisions about who to support politically based on who receives clemency and why, but if we do think the Office of the Pardon Attorney has fallen into unjustified dis-use, it might be because such decision-making has in the past been inadequately sorted and scrutinized. Justice, mercy, and prospective utility would be a first pass attempt at trying to get the Pardon attorney, and offices like it at the state level, to think more sure-footedly about what they are doing and why.*My published and probably still current view is that leniency motivated by any of these mercy reasons are all problematic even if not equally so from the perspective of retributive justice or liberalism properly understood. But my own view on this doesn't matter for the limited purposes of trying to come up with reforms of the Pardon attorney. I understand that not everyone is a retributivist or even a liberal and that some folks want the law to have spaces for interstitial discretion that redounds to the benefit of defendants--even if those benefits cannot be justified on their own feet but rather in service to some other good such as the desire to simply have less punishment.
Sunday, February 03, 2013
Marriage: Because only straight people can get knocked up
This story from the LA Times is a week old, but it describes part of the argument in the briefs defending the prohibition on same-sex marriage (as to both Prop 8 and DOMA), roughly as follows: Marriage is a unique institution necessary to handle unintended and unplanned pregnancies and to ensure that "irresponsible procreation" does not become a burden or drain on society. While same-sex couples only reproduce through careful advance planning, heterosexual couples can, and often do, reproduce carelessly and unintentionally. In other words, marriage is for straight people because only straight people can get knocked up or can knock someone up.
I have not read the briefs and I probably should know better than to rely on MSM reports of a legal brief, but is that really part, much less the core, of the argument? Is there more to the argument that the story omits? We have gone--seemingly in the space of this one litigation--from marriage as a sacred institution needing preservation from those who would defile it to marriage as a way to handle irresponsible-but-fertile fornicators. On this argument, marriage is intended for the very people who probably should not be together.
(H/T on both the Times story and the title from my colleage Tracy Pearl).
Saturday, February 02, 2013
Hello and Happy Groundhog Day
Thanks to Dan and the gang for inviting me to guest post on Prawfs once more. For those who don’t know my work, my main interests are in criminal law, criminal procedure, constitutional law, sentencing, and the death penalty. My most recent, and ongoing, research has focused on looking at the extent to which federalism constraints are built into the Bill of Rights, tying limitations on federal power to the norms of the States. You can expect some of my posts to be on this research and other ideas I’ve had for scholarship, as well as pending Supreme Court cases, thoughts on teaching, and, well . . . my philosophy is that a blog post should be somewhere between a law review article and the "You Know What Really Grinds My Gears?" segment from Family Guy.
As has been my practice in the past, I will not respond to anonymous or pseudonymous comments. As one prominent legal scholar recently wrote: “If you have an argument, make it, and use your name.”
For my initial post I was going to honor Groundhog Day – the movie, not the day – by simply cutting and pasting one of my posts from last year. However, I was concerned that no one would notice. But I will perhaps give you an eerie sense of déjà vu by discussing my view of the Cruel and Unusual Punishments Clause in my opening post. My main area of interest had been the federal death penalty in non-death States. I had made the argument that the Cruel and Unusual Punishments Clause could be understood as forbidding the federal government from inflicting a type of punishment not authorized by the laws of the State where the criminal conduct occurred.
In my latest work, Cruel and Unusual Federal Punishments, 98 Iowa L. Rev. 69 (2012), published last November, I update my research and expand on that argument. I think one can articulate my claims in three ways. First, I argue that, because the Supreme Court’s jurisprudence on the Cruel and Unusual Punishments Clause as applied to carceral sentences stems from state, not federal, cases it is exceedingly deferential (except for the recent juvenile LWOP cases) largely due to considerations of federalism. Therefore, a more robust and searching analysis is appropriate in looking at whether federal sentences of imprisonment constitute “cruel and unusual punishment.” Second, I argue that such a more searching analysis should look to the laws of the several States to determine whether a federal punishment is “cruel and unusual.” That is to say, if a federal defendant is punished more harshly for an offense than he could be in any State, the punishment is “cruel and unusual.” And I give a few recent examples where this has happened. Finally, I suggest that the proper comparator may be, not the States generally, but the State where the criminal conduct occurred. This would mean that a federal sentence is “cruel and unusual” if it exceeds what the defendant could have received in state court for the same crime in the State where it occurred.
As in my prior work, I rely heavily on the claim that we ought to give primacy to the general views of the Anti-Federalists, those who demanded that the Bill of Rights be added to the Constitution as a way of preserving both individual rights and state sovereignty. I suggest that an emphasis on the views of the Anti-Federalists should give us a more state-centered, and perhaps state-specific, interpretation of the Bill of Rights than is currently the case.
I’ll leave it at that for now, and go into some of the nitty-gritty and possible implications and further applications of these ideas in later posts.
The nature of online speech
At CoOp, Danielle Citron and Mary Anne Franks have numerous posts about the problem of revenge-porn sites. Keeping with that theme of misogyny on the internet, here are posts by Ann Friedman at New York Magazine and Amanda Marcotte at Slate offering advice on how to deal with "the creeps, the weirdoes, the bug-eyed nutters, and the sleazeballs in fedoras" who show up in on-line comments sections. Marcotte in particular makes what I think is a nice point: These days everyone owns a computer, which means that the creepy guy on the subway or the paranoid guy in the bank line also have access to comments sections. But, she argues, if this guy is just annoying in the former contexts, he should not be legitimately powerful in the latter context.
I am not a woman and I write on a blog read by a relatively small, niche audience of thoughtful and intelligent people; so I will not try to be overly sanguine about the trash (and purveyors of trash) who go after female opinion writers on-line. But I would try to build something on Marcotte's point. There is not necessarily more vitriol or more hateful, misogynistic speech out there than twenty or thirty years ago, nor are there necessarily more people who hold such beliefs. But there are infinitely more forums in which they can express those views, pretty much at will and without any external filter. That obviously is one thing the internet has wrought. But the internet also has wrought infinitely more forums (this blog included) for thoughtful, intelligent commentary about a host of things by a lot of different people.
The question, of course, is whether the benefits of the latter are worth the costs of the former.
Tuesday, January 22, 2013
Roe v. Wade at 40
Today is the 40th anniversary of Roe v. Wade. For me (but not, I realize, for most of my friends and colleagues in the legal academy), it is a sad day and the fact that it follows on the heels of our celebration of the life and work of Dr. King is dissonance-creating. I realize that many regard the ruling as a welcome step in the direction of equality-under-law-and-in-fact for women (and perhaps also as a needed correction to an excessive influence on law of religious morality), and I'm not (I promise!) looking for a fight but, for me, the decision was a badly reasoned overreach, marked a set-back for human equality, and has had negative effects on our politics, on the judicial-nominations process, and on our constitutional doctrine. We could have done, and can do, better.
In any event, several hundred students from Notre Dame are leaving this afternoon (snowstorm notwithstanding) for the March for Life in Washington, D.C. They'll be joined by tens of thousands of others and, I imagine, ignored by the national media. But, I wish them the best. And, I still think John Hart Ely was right.