Sunday, July 16, 2017

Court's Un-Common Sense on Sex Offenders

      The Supreme Court hit a home run in First Amendment terms with its unanimous decision to strike down a North Carolina law that banned convicted sex offenders from accessing commercial social networking sites used by minors for personal profiles or the like. But the court's decision in Packingham v. North Carolina was more than a free-speech victory. The decision also injected some uncommon good sense into the  debate driven generally by irrational panic and flawed statistics over how the criminal justice system should deal with sex offenders.
      As a First Amendment case, the court had no difficulty whatsoever in ruling North Carolina's social media ban fatally overbroad. But Justice Anthony M. Kennedy's opinion for a five-justice majority charted a new path for the First Amendment by declaring social media to be the 21st century equivalent of the free speech-protected public square. Banning sex offenders from such sites as Facebook and Twitter prevented them from "the legitimate exercise of First Amendment rights," he wrote.
      The ban also made no sense as penology, Kennedy explained. "Even convicted criminals — and in some instances especially convicted criminals — might receive legitimate benefits from these means for access to the world of ideas," he wrote, "in particular if they seek to reform and to pursue lawful and rewarding lives."
      As with so many free-speech cases, the government's challenged policy was blatantly irrational in the specific case before the court. Lester Gerard Packingham Jr. —  known to friends and family as J.R. — was no sexual predator even when he pleaded guilty to indecent liberties with a 13-year-old back in 2002. And the Facebook post that landed him in legal trouble again in 2010, long after his probation had ended, was no sexual come-on but merely a playful celebration of having beaten a traffic ticket.
      North Carolina had been one of the first of the states back in 2008 to craft a law aimed at preventing the admittedly common use of social media for sexual abuse and victimization of minors. Within the span of a few years, most of the states had adopted disclosure as a preventive policy. Sexual offenders, registered with the state under laws on the books throughout the country, were required to disclose their Internet identifiers to authorities as a safeguard of sorts against improper behavior on the 'Net. Some of those laws were upheld in court, others struck down.
      The Tarheel State was one of two states to adopt a social media ban instead. Louisiana's law was struck down in 2012. The North Carolina law, known as section 202.5, made it a felony for a registered sex offender to access a commercial social media web site if he knew it allowed use by minors for personal profiles and two-way communication. Significantly, the ban applied to any use of the site, not specifically to posts aimed at or communications with minors. As Packingham's lawyer told the Supreme Court during oral arguments, he risked violating the law for doing nothing more than responding on Facebook to any of the posts discussing his case.
      Packingham was a 21-year-old college student when he pleaded guilty to the reduced sex offense count back in 2002. The facts of the case were kept off public records, but the judge evidently viewed the offense as minimal. He suspended Packingham's six- to eight-month prison sentence. "No one ever thought he was a pedophile," according to David Goldberg, the Stanford law clinic instructor who represented Packingham at the Supreme Court.
      Convicted in 2012 under section 202.5, Packingham again was given a suspended sentence. He had challenged the law as unconstitutional before trial in tandem with a second defendant, Christopher Johnson, charged under the law. Johnson told the court that he had been fired from an IT consulting job because it required access to social media. Goldberg said that Packingham has used his graphic design degree to help with his church's web site but that the social media ban has held him back in career terms.
      The sex offender policies adopted over the past two decades have to some extent been based on fake data. Law enforcement officials, lawmakers, and judges all the way up to the Supreme Court have accepted as scientific truth a false myth that sex offenders have a high degree of recidivism — that is, repeat offenders.
      The myth appears to be traced back to an article in a non-peer reviewed popular magazine, but has shown up in, among other places, Supreme Court opinions. The myth is so strong that Justice Sonia Sotomayor, no dupe for law enforcement, referred to it as fact during arguments in Packingham's case. Scientific studies reviewed in a Justice Department report in 2001 found relatively low rates of recidivism among sex offenders compared to other offenders. The studies indicated a range between 10 percent and 29 percent for child molesters with female victims and between 13 percent and 40 percent for child molesters with male victims.
      Tellingly, the North Carolina legislature approved section 202.5 unanimously with support from the then Democratic attorney general and the then Democratic governor. At the Supreme Court, none of the justices found the law constitutional and five of them rejected it as senseless public policy. Goldberg said that Packingham's immediate response when he heard the news of the decision was a single word: "Hallelujah." Amen.


Sunday, July 9, 2017

Gorsuch 'More Conservative' Than Scalia in First Months

      Supreme Court Justice Neil M. Gorsuch celebrated the Fourth of July by joining the holiday parade in the small Boulder County community of Niwot. Gorsuch "worked the parade like a senator, not a sitting Supreme Court justice," according to a reporter for the left-leaning news site Rewire.
      As Colorado's second Supreme Court justice in history (after Byron R. White), Gorsuch was welcomed by most in the crowd as home boy made good, but dissent was heard. One spectator greeted Gorsuch by mocking his appointment to a seat that, by all historical practice, rightfully belonged to Merrick Garland. Martha McPherson's sign stated her opinion in all caps: "USURPER GORSUCH SUCH A SHAM."
      Back in Washington, Gorsuch was also drawing attention as court watchers and advocates and experts across the ideological spectrum assessed the first three months of a high court career that could last 30 years. Advocates on the left and the right appeared to agree on one point: Gorsuch could be on the way to being more conservative than his lionized predecessor, Antonin Scalia.
      The New York Times editorial board was still referring to Gorsuch's seat as "stolen" as conservatives chortled over the appointment. In an op-ed for The Wall Street Journal, the conservative legal academics John Yoo and Sai Prakash said that conservatives "hit the jackpot" with the Senate Republicans' gamble to block Garland's confirmation.
      Yoo, the Berkeley law professor who wrote the infamous torture memo while with the Bush Justice Department, and Prakash, a U-Va. law professor, described Gorsuch as a "robust originalist," more like Clarence Thomas than the self-described "fainthearted originalist" Scalia. They saw him as part of a conservative bloc with Thomas and Samuel A. Alito Jr. that would "expose" the "directionless middle" occupied by the others in the Republican-appointed majority, Chief Justice John G. Roberts Jr. and associate justice Anthony M. Kennedy.
      Gorsuch was confirmed to the life-tenured seat by a bitterly partisan 54-45 vote in the Senate, the fourth closest margin ever for a confirmed justice. The narrow vote caused Gorsuch no hesitation at all in staking out distinctively conservative positions on the bench or in his votes and opinions.
      Gorsuch "hit the ground running," remarked Jonathan Adler, a conservative professor at Case Western Reserve Law School in Cleveland. Michael Gerhardt, a liberal law professor at the University of North Carolina in Chapel Hill, agreed. "He's probably off the mark faster than people might have anticipated," Gerhardt said.
      In fact, Gorsuch was unusually active in his first day on the bench, with 22 questions in the first of three arguments on April 17, according to Adam Feldman, a postdoctoral fellow at Columbia Law School and creator of the blog Empirical SCOTUS. Gorsuch asked 12 questions in the next case, but slowed down somewhat in the rest of the April calendar, according to Feldman's count. Still, with 108 questions in 13 hour-long arguments, Gorsuch's average of eight questions per argument appears to be higher than similar counts for other newly-arrived justices.
      In that very first argument, Gorsuch began to display what Gerhardt calls his "little bit of arrogance" — in that case toward the lawyers and later in his opinions toward his fellow justices. The issue in Perry v. Merit Systems Protection Board was how to apply a devilishly complicated federal statute on appeals in federal employee discipline cases. With the government's lawyer struggling, Gorsuch tartly interrupted at one point: "'Wouldn't it be a lot easier if we just followed the plain text of the statute?''
      Gorsuch dissented from the eventual 7-2 decision in the case, convinced that Justice Ruth Bader Ginsburg had rewritten rather than scrupulously followed the law. In dissent, he lectured his Ivy League-graduate colleagues as though they were in a ninth-grade civics class. "If a statute needs repair," Gorsuch wrote, "there’s a constitutionally prescribed way to do it. It’s called legislation."
      Gorsuch's vote helped produce conservative 5-4 decisions in two of the cases from the April calendar: a death penalty case from Texas, Davila v. Davis, and a class actions case, California Public Employee Retirement System v. ANZ Securities. He was among four dissenters in a second death penalty case, McWilliams v. Dunn, where Kennedy provided the fifth vote for the liberal bloc. 
      Apart from the votes, Gorsuch wrote or joined opinions to the right of the other conservatives. In Trinity Lutheran Church v. Comer, Gorsuch joined with Thomas in calling for allowing more government aid to church-affiliated schools than Roberts envisioned in his famous footnote 3. In Weaver v. Massachusetts, Gorsuch joined Thomas in a concurrence to question the recent precedent requiring jury selection in criminal trials to be open to the public. And he wrote separately in the unanimous decision in Maslenjak v. United States to complain that Justice Elena Kagan should not have offered advice on how to apply the decision in lower courts.
      Gorsuch ended the term by going farther to the right. He joined with Thomas and Alito in voting to uphold President Trump's travel ban in its entirety. He wrote the dissenting opinion for the threesome objecting to the summary decision in Pavan v. Smith that married same-sex couples are entitled to have both parents' names listed on a child's birth certificate, just like opposite-sex couples. And, along with Thomas, he chided the majority for refusing in Peruta v. California to take up a Second Amendment challenge to California's limits on going armed outside the home.
      All in all, Yoo and Prakash could not have been more pleased. Gorsuch, they wrote, " has lived up to supporters’ greatest hopes and critics’ worst fears." SCOTUSblog publisher Thomas Goldstein says Gorsuch "brings restored conservative energy" to the court and predicts, in the fact of the historic degree of unanimity during the past term, "historically high fractiousness" during the new term to open in October.

Sunday, July 2, 2017

'Easy' Church-State Case May Make Bad Law

      Hard cases make bad law, it is said. For the Supreme Court, the dispute over government aid to resurface a church school playground in Missouri turned out to be a somewhat easy case. The question now is whether the surprisingly easy case will make bad law by limiting the power of states to enforce constitutional provisions prohibiting government assistance to private schools, whether secular or sectarian.
      The 7-2 decision in Trinity Lutheran Church v. Comer [June 26] found that Missouri had violated the Free Exercise Clause by rejecting the church's application for a government grant to resurface its playground in the interest of child safety with a rubberized material made of recycled automobile tires.
      The court had expected the case to be difficult. Oral arguments had been postponed for more than a year after Justice Antonin Scalia's death in February 2016, apparently because of fears of an inconclusive 4-4 split from the shorthanded court.
      With Justice Neil Gorsuch confirmed for the ninth seat, the justices heard arguments on April 19. From the justices' questions, the solidified conservative bloc appeared likely to pick up the votes of liberal justices Stephen G. Breyer and Elena Kagan in a ruling for the church. Only liberal justices Ruth Bader Ginsburg and Sonia Sotomayor seemed likely to stake out a strict church-state separationist position in dissent.
      The court followed the day after the decision by sending somewhat analogous cases back to the Colorado and New Mexico supreme courts to reconsider their decisions blocking state aid to non-public schools. Writing for the majority in Trinity Lutheran, Chief Justice John G. Roberts Jr. had given little weight to the Missouri constitution's provision that prohibits any funds "from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion . . . ."
      Roberts dismissed the state's interest in enforcing that provision, in part to steer clear of breaching the U.S. Constitution's prohibition against establishment of religion, as a mere "policy preference." Missouri's constitutional prohibition against aid to churches dates from its admission as a state in 1820. The constitutional provisions in Colorado and New Mexico are equally unambiguous in prohibiting aid to private schools and, like Missouri's, date from the states' admissions to the Union.
      In his opinion, Roberts described Missouri's prohibition on government aid to churches or religious sects or denominations as "odious" discrimination and even likened it to "persecution." Apart from the slightly overheated rhetoric, Roberts dropped a delphic footnote seemingly aimed at narrowing the scope of the decision.
      The case "involves express discrimination based on religious identity with respect to playground resurfacing," footnote 3 specifies. "We do not address religious uses of funding or other forms of discrimination." That caveat seems to embody the judicial restraint so revered by legal conservatives, but Gorsuch and his joined-at-the-hip conservative colleague Clarence Thomas both rejected the footnote and its implied minimalism.
      Gorsuch acknowledged the footnote — "of course"— as "entirely correct" but warned against reading the decision too narrowly. The decision, he said, would not permit "discrimination against religious exercise — whether on the playground or anywhere else." In his opinion, Thomas called for overturning the recent, 7-2 precedent in Locke v. Davey (2004) that allows states to deny scholarships for students training for the ministry.
      In her dissenting opinion, Sotomayor accused the majority of a radical break with legal precedent and historical practice dating back to the Framers. The ruling, she emphasized, marked the first decision to hold that the Constitution requires the government to provide public funds directly to a church. The decision, she went on, "weakens the country's longstanding commitment to a separation of church and state beneficial to both."
      Sotomayor rejected the majority's depiction of the case as a "simple" one that concerned nothing more than playground safety. Trinity's Learning Center had a religious mission and used the playground to "practice and spread" religious views, she said. Without specifically referencing Roberts's footnote 3, she rejected its logic. "The playground surface cannot be confined to secular use any more than lumber used to frame the Church’s walls, glass stained and used to form its windows, or nails used to build its altar,” she wrote.
      In the oral argument, Justice Samuel A. Alito Jr. scored points for the conservative bloc by asking whether, under Missouri's constitution, a church could be denied government funds for such secular purposes as earthquake safety or counterterrorism security. The lawyer representing the state stressed that Missouri's constitution —  as construed before the state's shift of position in the playground case itself —  would have barred funds for a church but not for a school as long as it was not operated directly by a church.
      For Alito and other conservative justices, Missouri's constitution was tainted by the anti-Catholic prejudice that helped drive the later adoption of similar amendments in, according to Sotomayor's count, 38 other states. All those provisions may now be living on borrowed time even when written as broadly applicable prohibitions on aid to non-public schools of any stripe. The Colorado and New Mexico supreme courts now have to try to square their states' policies with a Supreme Court majority that sees its mission as lowering the wall that has helped preserve religious freedom in the United States by keeping church and state apart.

Tuesday, June 27, 2017

Court Restores Trump's Travel Ban as Term Ends

      The Supreme Court ended a strangely incomplete term in dramatic fashion on Monday [June 26] by allowing President Trump's travel ban to take effect despite a string of lower court decisions blocking the controversial executive order.
      In a term with no true blockbusters, the court's decision to substantially narrow injunctions against what Trump described as a "watered-down" ban on travel from six predominantly Muslim countries amounted to a veritable bombshell at the end of the court's final sitting for the term.
      Chief Justice John G. Roberts Jr. ended the business part of the half-hour session by announcing that the court had agreed to hear the government's appeal of two decisions blocking Trump's executive order. The court, he explained, had also voted to stay the injunctions issued by the Fourth U.S. Circuit Court Appeals in a Maryland case and by the Ninth U.S. Circuit Court of Appeals in a suit originally brought by the states of Hawaii and Washington.
      The unsigned, 13-page opinion handed out in the Supreme Court's pressroom as Roberts spoke described the injunctions in Trump v. International Refugee Assistance Project and Trump v. Hawaii as overly broad and unmindful of the government's "interest in preserving national security." As revived by the court on an interim basis, Trump's EO-2 (technically, Executive Order 13780) will bar visas for foreign travelers from Iran, Libya, Somalia, Sudan, Syria, and Yemen unless the traveler has "a bona fide relationship with a person or entity in the United States."
      As examples, the unsigned opinion cited relatives of U.S. citizens, students admitted to U.S. schools, or workers with accepted offers of employment. In a dissenting opinion for three conservatives, Justice Clarence Thomas said he would have allowed the executive order to take effect as written and warned that the exceptions would prove to be "unworkable." Justices Samuel A. Alito Jr. and Neil M. Gorsuch joined his opinion.
      The majority opinion was apparently joined by Roberts, Justice Anthony M. Kennedy and the court's liberal justices: Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan. The actions on the applications for the stay and the government's petitions for certiorari were taken on the basis of written briefs without oral argument. Surprisingly, none of the Democratic-appointed liberal justices objected to lifting the injunctions issued by the Fourth Circuit on a 10-3 vote [May 25] and unanimously by a three-judge Ninth Circuit panel [May 15].
      Trump issued a somewhat formal, 114-word statement calling the court's action "a clear victory for our national security." But Omar Jadwat, director of the American Civil Liberties Union's Immigrants’ Rights Project and lead lawyer in the Maryland case, welcomed the court's decision to hear arguments on the ban in the fall following the earlier rulings against it. "The Supreme Court now has a chance to permanently strike it down,” Jadwat said.
      In a term with a modestly liberal cast to several decisions, the conservative bloc appeared to be refortified and somewhat ascendant as the justices prepared for their summer recess. Roberts delivered a resounding 7-2 victory for political and religious conservatives in the term's most closely watched case by easing a provision in Missouri state constitution barring government funds to churches or other religious institutions.
      The case arose in the unlikely context of a state program providing grants to non-profit entities to buy recycled automobile tires to rubberize playground surfaces in the interest of safety. Trinity Lutheran Church in the university town of Columbia applied for a grant for its church-school playground and scored well, but the state's Department of Natural Resources cited the state constitutional provision in rejecting the application.
      Roberts's majority opinion in Trinity Lutheran Church v. Comer found the church's disqualification to amount to religious discrimination in violation of the First Amendment's clause guaranteeing "free exercise of religion." He likened the government's action at one point to faith-based "persecution." Three justices joined Roberts's opinion in full: Kennedy, Alito, and Kagan. Thomas and Gorsuch joined all but a single footnote that limited the decision to "playground resurfacing" without ruling on "religious uses of funding." Breyer also wrote a separate opinion concurring in the judgment on somewhat narrower grounds.
      Sotomayor emphasized a dissenting opinion nearly twice as long as Roberts's by reading substantial portions from the bench. Sotomayor called the decision a "radical" break from historical tradition by holding — "for the first time" — "that the Constitution requires the government to provide public funds directly to a church." She warned that the ruling casts doubt on constitutional provisions akin to Missouri's in 30 states. Ginsburg joined her opinion.
      The case was one of 13 argued before a nine-justice court in April after Gorsuch's swearing in on April 10 on the strength of his 54-45 Senate confirmation. The court issued two other decisions from the April calendar on Monday, with conservatives prevailing in each by 5-4 votes. Thomas's opinion in Davila v. Davis barred death row inmates from challenging their sentences on the basis of ineffective assistance by lawyers in post-conviction proceedings. Kennedy's opinion in California Public Employees' Retirement System v. ANZ Securities refused to allow the big public pension system extra time for a securities-fraud lawsuit after having dropped out of a class action suit to litigate the case on its own.
      The liberal bloc had prevailed with Kennedy's help in some earlier five-vote decisions. Kennedy's 5-3 opinion in Peña-Rodriguez v. Colorado allowed criminal defendants to challenge convictions based on evidence of racist comments in the jury room. Ginsburg wrote a 5-3 decision in Moore v. Texas that instructed the state to update the standards for finding defendants ineligible for the death penalty on the basis of intellectual disability. Roberts gave the liberal bloc a fifth vote in the decision in Bank of America v. City of Miami to allow the city to sue banks under the Fair Housing Act for predatory loans in minority neighborhoods. And Thomas, oddly, provided the pivotal vote in the 5-3 decision in Cooper v. Harris to overturn a Republican-crafted redistricting plan as an improper racial gerrymander because it packed more minorities into legislative districts than needed to comply with federal law.
      Some other closely watched cases transcended the prevalent ideological lines. In a pair of free speech victories, the court unanimously struck down a federal law prohibiting registration of racially disparaging trademarks (Matal v. Tam) and a North Carolina law prohibiting convicted sexual offenders from using social media (Packingham v. North Carolina). And early in the term the court was unanimous in setting aside the $400 million judgment that Apple had won in a patent infringement suit against Samsung, its Korean rival in the smartphone wars (Samsung Electronics Co., Ltd. v. Apple Inc.).
      Court watchers had been waiting on Monday for decisions in three cases argued in December, January, and February. The court issued a limited ruling in Hernández v. Mesa instructing the federal appeals court for Texas to reconsider a suit by the parents of a Mexican teenager killed in a cross-border shooting by a U.S. Border Patrol Agent. In two other cases, the court scheduled rearguments in the next term--presumably, because the eight justices were evenly divided in the two immigration-related cases. Gorsuch is thus likely to have the decisive votes in Jennings v. Rodriguez, a case concerning rules for detention of aliens, and Sessions v. Dimaya, a case concerning use of state felony convictions as a basis for deportation.
      The court's final decision day came on a milestone date for LGBT rights advocates. The court's marriage-equality decision in Obergefell v. Hodges was issued on the same date in 2015; the rulings to strike down the Defense of Marriage Act and state anti-sodomy laws also both came on June 26, in 2013 and 2003 respectively. The court took no note of the anniversaries, but it did issue an unsigned, summary 6-3 decision in Pavan v. Smith to require the state of Arkansas to list a lesbian wife along with a child's biological mother on the child's birth certificate. Gorsuch wrote a dissent, joined by Thomas and Alito, arguing the issue warranted full briefing and oral argument.
      In all, the court issued a record low number of signed decisions in argued cases,  only 61, and nine other unsigned or per curiam opinions, including the interim ruling in Trump; the unsigned ruling in the argued case, Hernández; and six others, including Pavan, issued without oral argument. Among argued cases, 33 were unanimous — or an abnormally high 53 percent.
      In win-loss compilations, business interests prevailed over workers, consumers, or regulators in a majority of cases divided along those lines. That number included Gorsuch's only decision for the term: a 9-0 ruling in Henson v. Santander Consumer USA to somewhat narrow the federal Fair Debt Collection Practices Act. In criminal law cases, defendants or prison inmates won 11 decisions, the government 10. But the federal government won an important 8-0 victory in a closely watched case, Salman v. United States, that somewhat broadened insider-trading law.
      Along with the two cases restored to the calendar for reargument, the court is also carrying over three cases granted early enough for arguments in the current term but postponed — presumably because of fears of an inconclusive 4-4 split. Along with the travel ban case and five more cases granted on Tuesday [June 27], the court now has 28 cases teed up for arguments when the new term begins on Oct. 2, the traditional first Monday in October. That number includes two cases added on Monday: Masterpiece Cakeshop v. Colorado Civil Rights Commission, a Colorado bakery's effort to set aside a state civil rights sanction for refusing to serve a same-sex couple's wedding; and Digital Realty Trust, Inc. v. Somers, a test of the whistleblower provision in the Dodd-Frank financial industry reform law.

Sunday, June 25, 2017

High Court's Free Pass for Constitutional Wrongs

      Justice delayed is justice denied, according to the familiar legal maxim. But worse is for justice still to be denied even after the law's protracted delay. That was the message the Supreme Court gave last week [June 19] to the hundreds of innocent Arab and Muslim immigrants rounded up more than 15 years ago in a post-9/11 frenzy and held for months without charge in prison conditions usually reserved only for the worst of the worst.
      For 15 years, some of these "persons of interest," none of them ever found to have terrorism connections, have fought in federal court to hold the ranking officials responsible for these policies accountable under the Constitution. But the court that proudly promises "equal justice under law" decided instead to give a free pass to former Attorney General John Ashcroft, former FBI director Robert Mueller, and former Immigration and Naturalization Service Commissioner James Ziglar.
      The plaintiffs in this still unfinished litigation, represented since 2002 by lawyers from the Center for Constitutional Rights in New York City, asked for money damages from the three federal officials and the warden and associate warden of the federal prison where they were held. As authority, the lawyers relied on a decades-old Supreme Court precedent allowing damage suits against federal law enforcement agents for violations of constitutional rights.
      In blocking the suit against Ashcroft, Mueller, and Ziglar, a bare 4-2 majority of the shorthanded court has given federal officials a national-security get-out-of-litigation-free card. When the nation's security is at stake, Justice Anthony M. Kennedy wrote for the court in Ziglar v. Abbasi, federal officials cannot be second-guessing their decisions based on fears of being held financially responsible for violating individuals' constitutional rights. The ruling leaves prison warden Dennis Hasty's potential liability to be reconsidered on remand.
      In dissent, Justice Stephen G. Breyer protested that legal remedies against federal officials may be especially needed when they claim to be acting in times of emergency in the interest of national security. "[T]here may well be a particular need for Bivens remedies," Breyer wrote, referencing the court's 1971 decision, "when security-related Government actions are at issue." Justice Ruth Bader Ginsburg joined Breyer's dissent, but liberal justices Sonia Sotomayor and Elena Kagan had to recuse themselves because of prior involvement with the case respectively as judge on the Second Circuit and U.S. solicitor general.
      The seminal decision in Bivens v. Six Unknown Federal Narcotics Agents (1971) filled a gaping hole in U.S. law. Back at the time of the Reconstruction, Congress passed a law providing that state or local officials could be held liable for violating an individual's constitutional or legal rights "under color of [law]." Written against the backdrop of the defiance of federal officials by southern states, the Civil Rights Act of 1871 included no provision for comparable suits against federal officials for violating individual rights.
      In Bivens, the Supreme Court's 6-3 majority ruled that federal cops, just like state or local cops, could be held liable in federal court for violating an individual's constitutional rights — specifically in the case, for a warrantless search of James Biven's home. "That damages may be obtained for injuries consequent upon a violation of the Fourth Amendment by federal officials should hardly seem a surprising proposition," Justice William J. Brennan Jr. wrote for the majority.
      Whether surprising or not, Bivens is now in jurisprudential disfavor, as Kennedy explained in the new decision. The court has followed the Bivens' "implied damages remedy" approach in only two subsequent cases, Kennedy noted, and refused in several others. The court in
Davis v. Passman (1979) allowed a Fifth Amendment equal-protection suit against a sitting congressman by the female administrative assistant he fired after deciding he had to have a man in the post. A year later, the court in Carlson v. Green (1980) allowed the mother of a deceased federal prisoner to sue federal prison officials under the Eighth Amendment's Cruel and Unusual Punishments Clause for leaving her son's asthma untreated with tragically fatal results.      The plaintiffs' allegations in what was originally styled as Turkmen v. Ashcroft invoked all three of the Bill of Rights amendments cited in the Bivens trio of cases. For starters, they claimed unreasonable seizures in violation of the Fourth Amendment. They also claimed that they were subjected to severe conditions in prison — sleep deprivation, close confinement, and so on —  because of their religion or national origin in violation of the Fifth Amendment's equal protection requirement. The prison conditions, including unwarranted strip searches and verbal and physical abuse, were alleged to be Eighth Amendment violations.
      All of those well-pleaded allegations left Kennedy and his conservative colleagues, Chief Justice John G. Roberts Jr. and associate justices Clarence Thomas and Samuel A. Alito Jr., unmoved. "National-security policy is the prerogative of the Congress and President," Kennedy wrote, not he added for the courts. Breyer countered by pointing to the court's historically wrong decision in Korematsu v. United States (1944) to uphold the wartime internment of thousands of Japanese Americans.
      Four decades later, Congress apologized and provided $20,000 apiece in compensation to the wrongly interned Japanese Americans. For the victims of the post-9/11 dragnet, the Supreme Court offers nothing but Kennedy's caveat that the opinion should not be read to condone the "tragic" treatment that they received. Breyer's apt retort: the court's holding, he wrote, may "diminish[ ]  the compensatory remedy constitutional tort law now offers to harmed individuals."

Sunday, June 18, 2017

In First Opinion, Gorsuch 'Too Cute by Half'?

      The Supreme Court's rookie justice Neil Gorsuch has written his first opinion since taking the bench and the reviews are mostly good. "A superb opinion," gushed legal writing expert Ross Guberman hours after Gorsuch handed down his opinion in a little noticed consumer protection case, Henson v. Santander Consumer USA [June 12]. But hold the applause. On close examination, the opinion is structurally flawed, legally simplistic, and unfortunate on policy grounds.
      News coverage emphasized the new justice's use of alliteration to open a close grammatical dissection of one sentence in a 40-year-old federal law. The federal Fair Debt Collection Practices Act was aimed, Gorsuch tells the reader in his opening paragraph, at such "wayward collection practices" as "disruptive dinnertime calls" and "downright deceit."
      Guberman, who formerly taught legal writing at Yale Law School and now provides paid writing instruction to law firms, courts, and others, gave Gorsuch the newly created 2017 Judicial Alliteration Award for this and a second alliterative phrasing later in the opinion. Steven Mazie, the American Supreme Court correspondent for the British newsmagazine The Economist, mimicked Gorsuch with a tweet. "Gorsuch goes gaga for alliteration in opening line of 1st #SCOTUS op," Mazie tweeted.,
      The National Law Journal's Tony Mauro interpreted Mazie's tweet in his write-up of Gorsuch's opinion as "warm praise." Not so, Mazie now says. "Too cute by half," he told me. Guberman had noted Gorsuch's "breezy" and "jocular" style when the nomination was pending in the Senate. But some detractors in Gorsuch's home state of Colorado are said to have viewed his stylistic flourishes with something like mild disapproval.
      Apart from that issue, Gorsuch departed more significantly in his debut opinion from the established format for Supreme Court majority opinions. Invariably in recent memory, majority opinions open with a short overview of the case followed by Roman numeral-marked sections. Gorsuch's opinion, quite short at barely 10 pages in length, has no such guideposts.
      Michael Gerhardt, an experienced court watcher as law professor at the University of North Carolina, says the use of numbered sections helps both the justices and the legal community. Without that structure, Gerhardt explains, "People would have to work a little harder to follow the reasoning and maybe count the votes." The structure also "makes it easier for justices to specify which sections they join or don't  join," he adds.
      Gorsuch's departure from the customary organization of Supreme Court decisions went unremarked on until a tweet by this writer last week. But a review of the initial majority opinions by Gorsuch's eight colleagues shows that all of them adopted the numbered-section format in their maiden opinions­ — even in decisions that were short and unanimous, just like Gorsuch's debut. (Credit Adam Feldman of Empirical SCOTUS, here, with listing and linking those opinions.)
      Among the current nine, Chief Justice John G. Roberts Jr. and the junior justice Elena Kagan appear to be competing for the title of "best writer" on the Court. In their initial opinions, however, Roberts and Kagan both played it straight: nothing at all breezy apart from Roberts's citation in Martin v. Franklin Capital Corp. (2005) of "no less an authority" than Chief Justice John Marshall. A quick reading of the initial opinions by the six others also finds nothing comparable to Gorsuch's maiden effort to add some writing flair in aid of accessibility.
      Gorsuch's opinion also confirms to some extent the confirmation-fight accusations from Democrats and progressive groups that he favors business interests over consumers or workers. The plaintiffs in the case had accused Santander of engaging in the same kinds of "wayward collection practices" that Congress had in mind when it passed the debt collector law in 1977..
      The specifics of their complaints are missing from Gorsuch's opinion. Instead, he examined in grammar-lesson style the question of whether Santander, which bought the plaintiffs' defaulted car loans from CitiBank's auto financing arm, met the statutory definition of "debt collector." The law's definition: anyone who "regularly collects or attempts to collect . . . debts owed or due . . . another." Santander, Gorsuch reasoned, was collecting debts for itself, not for "another."
      Among eight federal courts of appeals to consider the question, five had ruled that a debt purchaser such as Santander was indeed a "debt collector." In adopting the narrower reading of the law, Gorsuch followed the approach of his dissent in the infamous Frozen Truck Driver case. In that case, he narrowly read a federal trucker safety provision as inapplicable to the discharged driver's decision to leave his inoperable rig on the roadside and drive in subzero temperatures to a heated service station.
      As in that earlier case, Gorsuch turned a close question of statutory construction into a civics lesson, this time with eight other justices concurring. The advent of the debt purchasing industry was a changed circumstance since 1977, Gorsuch acknowledged. But he refused to consider whether Congress would have intended to include them as debt collectors under the law. "It is never our job to rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done had it faced a question that . . . it never faced," he wrote.
      For conservatives, this kind of obtuseness counts as respect for the Constitution's separation of powers. But others may rightly ask whether the more faithful reading of arguably ambiguous statutory text would seek to apply the evident congressional intent that the law itself reflects.

Saturday, June 10, 2017

Trump's Offenses Far Worse Than 'Obstruction'

      President Trump is unlikely to be indicted and even less likely to be impeached for obstruction of justice for hoping that FBI director James Comey could go easy on Trump's friend and good guy, the fired national security adviser Lt. Gen. Michael Flynn. To be sure, Comey's account of the Feb. 14 Oval Office conversation with Trump, combined with the conspiratorial trappings of the talk and Trump's later firing of Comey, make out an indictable case that Trump "corruptly" sought to impede a pending federal "proceeding."
      Parsing Trump's words that carefully, however, is off-point by a country mile, somewhat akin to checking Al Capone's tax returns to see whether the bootlegger-mobster had run afoul of federal law. Trump's "high crimes and misdemeanors" are far worse than anything spelled out in 18 U.S.C. §1505, according to panelists at the American Constitutional Society's annual convention in Washington on Friday [June 9].
      Trump's actions in office and before are not merely "unconstitutional," according to Duke law professor Neil Siegel, but worse: "anti-constitutional." Siegel and fellow panelists in the progressive group's featured program listed the many ways in which Trump as candidate and now as president has stomped on and ground into the dirt unwritten constitutional norms that are essential to U.S. democracy. "We have a president who doesn't believe in democracy," Stanford law professor Pamela Karlan remarked.
      Karlan started her bill of particulars with Trump's threat during the campaign to jail his opponent, Hillary Clinton, if elected. As a second pre-election offense, Karlan recalled Trump's infamous reply that he would accept the results of the election only if he won. As post-election offenses, Karlan listed Trump's repeated unsubstantiated claims actually to have won the popular vote because of more than 3 million votes illegally cast for his opponent. And then, in pursuit of the nonexistent evidence, the president created a commission stacked with voting rights opponents aimed at making it harder, not easier, to cast ballots in the ultimate hallmark of a working democracy.
      Worst of all of his offenses, according to Slate's legal affairs columnist Dahlia Lithwick, is the Trumpian ontology of alternative facts. "What has been so fundamentally dismantled is the norm of truth," Lithwick remarked. In this view, Trump's assault on the media and his assault on the courts are part of a common strategy of seeking to delegitimize independent institutions capable of challenging Trumpian alternative facts, like the size of the Inauguration Day crowd or the content and purpose of the Muslim travel ban.
      None of these offenses will be found in title 18 of the U.S. Code, but the Framers appear to have been thinking in broad rather than legalistic terms in providing for impeachment of federal officials, including the president. In Federalist Nos. 65 and 66, Jay and Hamilton refer to "corruption" and "treachery" as grounds for impeachment, all-encompassing terms that might equally be rendered as "malfeasance" in office. "If you have enough of that," Seigel said of Trump's norm-breaking conduct, "maybe it's grounds for impeachment."
      The definition of an impeachable offense depends not on an academic debate about the Framers' intentions but on the political will of the House of Representatives. With a Republican majority dependent on the good will of the Republican base, the current House is unlikely to consider impeachment — not unless Trump's Mendoza-line approval ratings seriously jeopardize the members' own election chances.
      With impeachment off the table for now, indictment has a natural appeal to the #NotMyPresident crowd, but it is likely no more than a pipe dream. For starters, many legal scholars and experts believe that impeachment, not criminal prosecution, is the sole remedy against presidential misconduct. Oddly, the argument depends on an unwritten constitutional norm. ''The Framers implicitly immunized a sitting president from ordinary criminal prosecution,'' the Yale law professor Akhil Reed Amar remarked recently to the New York Times's Adam Liptak.
      Harvard's Alan Dershowitz has been making a separate argument specifically against an obstruction charge. As president, Trump has the power to direct the executive branch, Dershowitz argues, including the power to call off a law enforcement investigation or to fire a noncompliant FBI director. By analogy, Dershowitz cites the president's pardon power, exercisable at his sole discretion. Yet Dershowitz's argument proves too much: surely a pardon-for-cash scheme would be either indictable or impeachable or both.
      In the most recent full rehearsal of the arguments, a rising legal academic has given his thumbs-up to a possible indictment in a post on the Trump-watching blog Take Care. Writing in advance of Comey's testimony to the Senate Intelligence Committee, Andrew Manuel Crespo, an assistant professor at Harvard Law School, found no bar to charging Trump with obstruction of justice. If special counsel Robert Mueller were to seek an indictment, Crespo wrote, "he would be acting well within the law, the norms of the profession, and the reasonable bounds of the discretion with which he has been entrusted."
      Perhaps, but a prosecutor might want a stronger case before testing those bounds. For now, the rule of law that Trump so threatens may depend not on Congress or the courts, but on "we the people" ourselves. "A republic if you can keep it," Benjamin Franklin cautioned after helping write the Constitution in the fateful summer of 1787.  "We've lost our way," ACS panelist Siegel remarked, "and we need to find our way back." The path is by no means clear.