Category: Supreme Court

Justice Stevens’ Worst Opinion

By , October 16, 2010 12:08 pm

Everett, an 82 year old Mt. Pleasant man I bussed to the voting precinct during the 2008 Iowa Caucuses. I nearly dropped him on an ice patch outside the van, which might have killed him and certainly would have broken his hip for the second time in six months.

When Justice Stevens announced his retirement during the last term, liberal Supreme Court commentators lamented the loss of the leader of the left side of the Supreme Court divide.  Though appointed by Republican President Gerald Ford in 1975, Stevens sided with the liberal wing of the court in several decisions.  Over the past three decades, the Court has drifted rightward, leaving Stevens to look more and more like a liberal lion.  In truth, Stevens is a sensible moderate, only looking liberal in relationship to the rest of the Court. 

But I digress.  The day he announced his retirement, Dahlia Lithwick at Slate wrote of Stevens’ extraordinary empathy, his ability to see the world through others’ eyes.   I agree, for the most part.  But one of Stevens’ decisions that still bothers me, and could have far-reaching impacts on close elections in the years to come, concerns and Indiana voter id law from 2006.  In fact, the decision has added fuel to Kris Kobach’s “We Need to Stamp Out Voter Fraud” campaign theme for Kansas Attorney General.  This is the most significant instance of Stevens’ empathy failing him and leading to a terrible decision.  Here’s what I wrote back in 2007.  If you’re not interested in a lengthy discussion of Equal Protection Clause, feel free to skip this post and we’ll have something else for you tomorrow. 

Just a few days before the Indiana Democratic Primary on May 6th, the Supreme Court issued its in opinion in Crawford v. Marion County Election Board , which upheld the constitutionality of Indiana’s voter identification law. Ostensibly, the law (SEA 483) was designed to crack down on in-person voter identification fraud by requiring voters to show photo id at the polling place. However, SEA 483 is a solution in search of a problem: Not a single case of in-person voter fraud has ever been prosecuted in Indiana. In fact, is a partisan attempt to control the vote:  SEA 483, the toughest of its kind in the country, was approved on a strict party-line vote, with every Republican voting for the law and every Democrat voting against. The decision could play a big role in future elections, as Republican state legislatures across the country adopt similar legislation that could keep thousands of poor, elderly, and often minority citizens (who just happen to voter overwhelmingly Democratic) from casting votes.

The particulars of Crawford are as follows: In 2005, the Indiana legislature approved SEA 483, which requires citizens voting in-person to present photo identification at the polling place. There are some notable exceptions (absentee ballots only require a signature, those living in state-licensed nursing homes are exempt), but for the most part, voters need a drivers license or state-licensed non-drivers ID. The IDs are free, but you need a birth certificate or social security card to get one, which can cost up to thirty dollars to obtain and often require multiple trips to government offices. If you can’t supply photo ID, you can cast a provisional ballot and then sign an affidavit at the County Clerk’s saying, essentially, that you’re too poor to get the documents together for an ID. The Indiana Democratic Party filed suit immediately after Republican governor Mitch Daniels signed the bill into law, arguing that SEA 483 violates the Equal Protection Clause of the Fourteenth Amendment of the Constitution.  The suit eventually worked its way up to the Supreme Court, after being found constitutional by a split panel of the Seventh Circuit Court of Appeals (The two Republican appointees voting in favor; the Democrat against).

To decide if a law violates the Equal Protection Clause, the Court has developed a series of hoops to jump the law through. Relevant to Crawford, those hoops are as follows. First, the Court has to decide how important the right infringed by the law is. Voting is in the category of most important rights–a “fundamental” right. A law restricting a fundamental right gets the highest level of scrutiny by the Court (“strict scrutiny”), meaning that the state has to have a really, really good reason for the law. The law survives strict scrutiny only if it is “narrowly tailored” to serve a “compelling state interest.” The vast majority of the time, if a law gets strict scrutiny, it will be declared unconstitutional. In the election law context, strict scrutiny requires a balancing test in which the Court weighs the law’s burdens on the voter versus the state’s relevant and legitimate justifications for the law.

The landmark decision in this line of cases is Harper v. Virginia Board of Elections  (1966), which held that poll taxes violate Equal Protection because “voter qualifications have no relations to wealth.” But, as with many Warren-era decisions, this bedrock value has been whittled away by an increasingly conservative Court. In 1983, the Court held in Anderson v. Celebrezze that any law which has “even handed restrictions that protect the integrity and reliability of the election process itself” qualifies as “narrow tailoring,” essentially requiring a super duper severe burden (like, a poll tax, or fighting ninjas in front of the voting booth) on the voter to overcome the state’s interest. In 1992, the Court effectively threw up an additional hoop in Burdick v. Takushi, which forces the voter to overcome an additional balancing test (“reasonable restrictions” v. “character and magnitude of asserted injury”) just to get to the Equal Protection Strict Scrutiny analysis. In effect, over the past two decades, the Court has undermined the idea that voting is a “fundamental right” and has overburdened voters’ burden to prove they’re overburdened.

The 6-3 opinion (Roberts, Stevens, Kennedy, Scalia, Thomas, and Alito in the majority; Souter, Ginsburg, and Breyer in dissent) is rather extraordinary. Justice Stevens’ controlling plurality opinion found that SEA 483 does indeed infringe on a fundamental right, but the law overcomes strict scrutiny anyway–which is a little bit like giving an Oscar to M. Night Shyamalan because you didn’t count the stupid twist ending. In essence, when Stevens weighs the state’s interests versus the voters’ burdens, he finds that the state’s interest in preventing a crime nobody’s ever been convicted of overcomes the burden of poor old people having to travel all over the county, contacting state departments of revenue, paying a bunch of fees, and being humiliated by having to admit that they’re too poor to vote.

At least Stevens was willing to analyze the balancing test. Justice Scalia wrote in concurrence that the Indiana law doesn’t even meet the Burdick test, so the burden on the voter is, constitutionally speaking, so minor that it barely requires consideration. Scalia simply can’t understand why these poor old people are upset—I mean, they get to cast provisional ballots or could vote absentee if they wanted to. But, as Justice Souter notes in dissent, many absentee ballots are routinely tossed out or not counted because of technicalities or because they’re confusing. Plus, the provisional ballot is only counted if you can make your way down to the courthouse and sign an affidavit saying you’re too poor—even though the very fact that you’re poor is probably the reason you can’t get to the courthouse and pay the necessary fees anyway.

Essentially, Scalia wants to create a second class of votes—hey, you got to register your opinion about who you want to be president, but it’s probably not going to count. Scalia, true to his textualist nature, plays some word games with the terms “burdens” and “impacts.” Scalia argues that the “burden” on all voters is the same, even though it “impacts” voters differently. This is bullshit, and Scalia basically admits as much. We could require all voters to pass a literacy test because the “burden” is equal for all voters, but we can’t consider the “impact” of the law on those who can’t read. Well, why not just ignore the “impact” on those too poor to pay a poll tax just as long as all voters are “burdened” with paying $5.00 to vote? Scalia even acknowledges that “likely impact” is a factor in deciding whether a law is too burdensome (Storer v. Brown at 738), but just breezes on by this factor to re-assert his conclusory point that all burdens are equal as long as the law doesn’t say, “Poor black city dwellers and poor white country folk who live forty miles from the county seat have to pay a whole bunch of money they don’t have and make several dangerous trips just to have a small voice in the future of our country.”

Scalia, however, is right on one count, that Stevens’ invitation for individual voters to launch “as-applied” attacks on the law could create constant litigation to cut holes in the fabric of the Court’s decision. Fair enough, but it follows that voters who are too old and poor to get a state id probably don’t have the means to launch a complex constitutional case in federal court. Towards the end of his opinion, he tosses off a judicial-minimalism argument that is so formalistic that Scalia seems to willfully blind himself to its effects. Scalia says his real objection is that the Constitution vests the power to conduct elections in state legislatures in Article I. True enough, but this doesn’t mean that the state can restrict the right to vote inconsistently with the rest of the Constitution—as the Court did when it struck down the poll tax. But that doesn’t matter here. Scalia’s is a faux-democratic argument: He argues that the issue is best left to legislature, but would deny the most vulnerable citizens the right to vote for representatives in that legislature. How can hens vote the foxes out of the henhouse if the hens’ votes don’t count?

Equally bizarre is the analysis in Stevens’ controlling opinion, which is so divorced from the real lives of real-life actual real people that it reads less like work of an eighty-eight year old man and more like a grandson who is tired of taking grandma around for her errands. On the state’s side of the Anderson balancing test, Stevens identifies four state interests. First, to “modernize elections,” where Stevens invokes no less than Jimmy Carter and James Baker’s (former Secretary of State and captain of George W. Bush’s 2000 Florida recount team) Commission on Federal Election Reform to support his case. Oddly, Stevens quotes this passage from the Commission’s report: “There is no evidence of extensive fraud in U.S. elections or multiple voting, but both occur, and could affect the outcome of a close election.”

We already knew this, of course–otherwise, there would have been no need for Alberto Gonzalez’ Justice Department to fire those U.S. District Attorneys (all nominated by Bush and confirmed by a Republican Senate) for refusing to file frivolous voter fraud lawsuits in heavily Democratic precincts. If there have been no prosecution of in-person voter fraud in Indiana, and that Republican U.S. attorneys can’t find voter fraud even after extensive investigations, how much weight should this “state interest” have? At best, the Commission’s position is conclusory and faith-based: There’s no evidence of the Flying Spaghetti Monster, but you can’t say he doesn’t forge his signature on the Marion County, Indiana voter rolls. Still, Stevens puts his finger on the state’s side of the scale.

The second interest is bound up with the first: to deter and detect voter fraud. Stevens again emphasizes that not a single instance of voter fraud has ever been prosecuted in Indiana, as if he’s dissenting from his own opinion. If, say, ousted U.S. DA for Western Missouri (and Bush appointee and brother of Republican congressman Sam Graves) Todd Graves had caught Jackson County Democrats holding drunks at gunpoint outside the precinct like Steve Buscemi in Kansas City, then, yeah, good point. But it’s not, so Stevens has to travel in the wayback machine to pull up Boss Tweed as his chief exhibit. That’s right: Justice Stevens invokes Boss Tweed as evidence for in-person voter fraud in 2008. In fact, Stevens does find one instance of voter fraud in Indiana, involving absentee ballots cast during the 2003 Democratic Primary for East Chicago Mayor. Unbelievably, Stevens cites this as evidence of the need to prevent in-person voting fraud—the very remedy (absentee ballots) given to disenfranchised voters!

Stevens’ last point so lacks evidence he manages only a conclusory single paragraph. The third state interest is to safeguard voter confidence. He cites no evidence that Indiana voters have no confidence in their system, nothing. But he does name-drop the Carter-Baker report again, saying, well, if you don’t have safeguards, people are just going to think this whole election thing lacks integrity–you know, like legislature passing laws to intentionally disenfranchise the poorest and most vulnerable citizens from voting.

Finally, Stevens just kinda drops another argument, that Indiana needs to purge its bloated voter rolls of dead or moved citizens. Stevens likely dropped the argument because, well, there’s no possible way that requiring voter ID would help counties figure out who doesn’t need to be on the voter roll. If somebody shows up that isn’t on the list, sure, gotcha. But, unless dead people start showing up at the polls in mass, no names are coming off the list. So, unless this is the scene outside the Gary, Indiana voting precinct, and those zombie voters don’t have photo id, there has to be a more effective way to purge the rolls.

On the other side of the scale, Stevens is even less convincing. He wonders what the big deal is for somebody to cast a provisional ballot, and then within ten days go down to the courthouse and sign an affidavit that you’re too poor or without means to get an ID. Well, Justice, one reason that might cause a problem is the humiliation of having to admit, in a legal document, that you’re too destitute to cast a full ballot in an election. Second, part of the reason you can’t get your documentation together is that it’s too hard to get to the courthouse. Third, for those on fixed incomes, the cost of procuring an out-of-state birth certificate can be substantial, confusing, and time-consuming–which Stevens even admits is in opposition to the holding in Harper. Again, Stevens seems to be dissenting from his own opinion.

Stevens goes on to attack Justice Souter’s dissent in footnotes, as if he’s too embarrassed to respond in the main text of the opinion. His rebuttals recall the passage in Jeffrey Toobin’s The Nine, in which it’s revealed that Chief Justice Rehnquist took a private limo ride to the Court once he became sick. I am glad the Chief Justice, especially in his time of dire need, was able to get to the Court to do his important work, but not all of the sick and elderly can simply call up a limo and take a drive down to the courthouse. I could find no mention of how the eighty-eight year old Justice Stevens makes it to court every day, but I’ll bet he’s got it a helluva lot easier than most great-grandpas in the state of Indiana. Souter cites the fact that 43,000 elderly citizens in Indiana don’t have photo id, but Stevens just kind of dismisses the figure, even though the District Court admitted this into evidence, the State didn’t object, and it’s backed by extensive research described in Souter’s dissent. Stevens goes onto say that “supposition based on extensive Internet research is not an adequate substitute for admissible evidence,” even though the District Court admitted the evidence itself. Stevens apparently doesn’t realize that the government keeps a lot of official records on these here interwebs.

Stevens’ next argument is bizarre, and really drives a stake through the vampire heart of his argument. Souter cites the fact that public transportation is not widely available in Indiana, especially in rural counties where the county seat may be many miles away, or in large cities where the rigors of mass transit may be especially hard for the elderly and sick. Stevens wonders why these “elderly and indigent citizens” don’t just “obtain a photo identification…during a routine outing with family and friends or during a special visit to the BMV arranged by a civic or political group such as the League of Women Voters or a political party.” Apparently, poor old people are supposed to just drop by the BMV while out taking a ride down to the malt shop with their girlfriends. Fair enough, but it doesn’t seem to occur to Justice Stevens that the whole problem is that the trip itself can be extremely dangerous because they’re frickin’ old and sick.

And yes, Judge Posner, I have been a member of a political party who has helped transport old sick people to vote.  I have personally “worked harder” to get supporters to the polls. In fact, I damn near dropped Mervin the diabetic on a sheet of black ice in an elementary school parking lot in Fort Madison, Iowa just to get his ass in to caucus for that scumbag John Edwards. I drove his motorized wheelchair into a snowbank at the nursing home. That wheelchair, my friends, is not making it twenty miles down the road in the snow to the Lee County courthouse in Keokuk so Mervin can fill out his I’m-too-poor-to-vote affidavit. I damn near broke Everett’s hip trying to get him out of the van. I lost Mary in the elementary school. 

So don’t tell me, judges, that you can just pop over to the courthouse and all this is no big deal. When you’re dealing with the old and sick–the most vulnerable of our citizens–it is a big deal. It can also be life-threatening if you’ve got to go clear to the county seat, whether you live in a rural or urban area. And yes, I’d be just as pissed if these disenfranchised voters were going to vote Republican–hell, in many rural counties where getting to the County Clerk’s office is a long highway drive, they probably will. That’s not the point—especially as it relates to the Equal Protection Clause.  Poor black folks in the city and poor white folks in the country all deserve the right to vote. Democracy demands it, and the Equal Protection Clause of the 14th Amendment of the United States Constitution, you would think, would command it.

Apparently, the chauffeurs of the elderly of the High Court are tipped well enough that they’ve made the justices so comfortable they don’t realize this. It shouldn’t take a de facto poll tax, three phone calls and a bunch of faxed documents to out of state departments of revenue, two thirty miles trips to the county courthouse, and if that falls through, another trip to courthouse to fill out a humiliating affidavit, just to vote.  You’d think a damn-near ninety year old man would realize that.

Elena Kagan Jim Joyce’s Her Call on the Ridiculous Umpires/Judges Analogy

By , September 12, 2010 1:21 pm

With most of us on the couch furiously yahoo-ing through our fantasy football scores, let’s not forget there’s another season that’s upon us:  Supreme Court Season!  With a new term coming in October, I’ve got three articles in the queue that take stock of where we’re at with the Court.  For now, let’s review the key moment, for this Court watcher, from confirmation hearings for Elena Kagan.  And do an NFL tie-in.  Because it’s Red Friday  in Kansas City.

And re-link to my Zapruder Film breakdown of my lawyer-and-umpire’s perspective on why Jim Joyce blew the perfect game call.  Let’s give newly-minted Justice Elena Kagan credit for taking a few shots at the flank of Justice Roberts’ stupid and intentionally misleading analogy that Supreme Court justices are like baseball umpires.  Kagan answers Senator Klobuchar’s question in three parts. First, Kagan says the umpire analogy works only as far as it means neutrality.  We can all agree on that, I’d hope.  Second, she says that judges should realize they’re not the most “important” people in government, which I take to mean that judges should have a certain modesty in public appearances that befits the decorum of the court.  That I agree with too—though this shouldn’t conflict with Justice Roberts’ wise and right commitment to creating more transparency in the Court’s proceedings.  If she means that certain justices don’t do the Court any favors by writing score-settling screeds or delivering Sicilian flip-offs in church, sure, I’m with that too. (Bonus points would have been awarded for calling Scalia the Joe West of the Supreme Court).

On her third point, though, Kagan doesn’t deliver the heavy artillery.  She begins her attack by saying that the analogy confuses judging with the robotic enterprise of making calls, that judging requires “judgment.”  I’m not going to get into a discussion of the difference between “judging” and “adjudging” a call, but I will say that in some trial court settings, judging is like calling ball and strikes with the Federal Rules of Evidence. 

More importantly, she follows this line by asserting that judges apply the law:  “It’s law all the way down,” and just in case any activist judge haters out there missed it…”law, and only at law.” She talks about applying text, structure, history, precedent, etc., which, yeah, is what judges do.  But Kagan wants to be appointed, so she stops here.  She says that only law matters, which, again, just isn’t true at the Supreme Court level.  Kagan says political and personal preferences don’t matter—but as I’ve discussed before, this simply isn’t true.  Supreme Court justices make law because they interpret the Constitution.  How can philosophy, politics, and personal preferences not matter? 

This is not to say that philosophy and politics are dispositive—justices are bound by text, precedent, and all those things—but they matter.  Interpretation is a philosophical exercise, so it can’t be “law all the way down” all the time.  The making of law has to start someplace, and in our system of government, much of it starts with the Supreme Court’s reading of the Constitution.  The sooner we admit this in open forums without being smeared as Founding Father-hating communists, the sooner we can have mature, adult conversations about what our founding document means.  Again, I present to you the NFL Competition Committee model of Supreme Court jurisprudence.  Future nominees, if you use this argument to absolutely dumbfound Judicial Committee Ranking Minority  (and U. of Alabama Law graduate) Senator Jeff Sessions, then I expect a clerkship.  Thank you.

Did Clarence Thomas Deny Legal Aliens a Constitutional Right to Bear Arms?

By , August 14, 2010 5:07 pm

Ok, just hear me out on this one.  One of the blockbuster cases of last term,  McDonald v. City of Chicago is the NRA’s big case against Chicago’s ban on handguns, the follow up to 2008’s District of Columbia v. Heller, where the Court first found an individual right to bear arms in the text of the Second Amendment.  To get there, Justice Scalia used a self-defense rationale to buttress his textual reading of the Amendment—which, to be frank, is so grammatically confusing that it’s essentially a Rorschach Test.  The controlling opinion, concurring opinions, and dissents in Heller were basically a grammar nerd fight over the syntactical meaning of commas, the difference between operative and prefatory clauses, and whether commas within absolute clauses determine which descriptors govern nominatives.   Hell, the Second Amendment signed by Congress is not the one ratified by the states.  Nonetheless, Scalia’s controlling opinion held that in federal enclaves, like the District of Columbia, there is an individual right to bear arms.  But not an absolute right, meaning that guns can be regulated but not banned.

Notice that Heller only applies to federal enclaves.  This is because in an 1833 decision, the Court held the Bill of Rights pertains to the federal government but not state governments—so the Constitution may forbid federal encroachment on the Bill of Rights, but the states were still free to.  Then in the 1890s, the Court reversed track and developed the doctrine of incorporation to apply certain amendments to the states.   In other words, the Court found that the newly-passed Fourteenth Amendment says the states can’t abridge certain rights found in the Bill of Rights. But not all rights—the rights incorporated against the states are decided on a right-by-right basis. 

There are two ways to incorporate rights against the states, both of which are found in the Fourteenth Amendment.  One is the Privileges or Immunities Clause, which says, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” In other words, a state can’t take away fundamental rights guaranteed to all U.S. citizens. 

The other is the Due Process Clause of the Fourteenth Amendment.  The DPC says that a state cannot “deprive any person of life, liberty, or property, without due process of law.”  Basically, this means the same thing as the PoI clause—a state can’t take away fundamental rights guaranteed under the Constitution. Since 1873, the Court has incorporated rights through the Due Process of Clause of the 14th Amendment (the famous Slaughter-House cases).

So, what’s the difference, as long as fundamental rights are incorporated against the states?  Well, the Privileges or Immunities Clause applies to “citizens,” whereas the Due Process Clause applies to “persons.”  Even John “Torture Memo” Yoo agrees that Due Process gives noncitizens many of the same rights as U.S. citizens under the Fourteenth Amendment.   

Why is this important to the NRA gun case? Well, in McDonald, a five justice majority agreed that the Second Amendment is incorporated against the states.  However, only a four justice minority agreed that the Second Amendment is incorporated through the Due Process Clause.  Justice Thomas applied the Privileges or Immunities Clause—which no other justice has done in 137 years!  Thus, there’s no controlling majority that says the Right to Bear Arms is guaranteed to persons. There’s only a majority that says the Right to Bear Arms is guaranteed to citizens.

The upshot is this:  Had Justice Thomas just applied Due Process like every other justice in the last century and a half, the Court would have likely guaranteed Second Amendment rights to persons—including, based on precedent in other incorporation cases, illegal and legal aliens. (Caveat: there’s some dicta in Justice Alito’s opinion suggesting the Right to Bear Arms is less than a fundamental right, and nobody is exactly sure what’s going on there).  So, hypothetically, if, say, Arizona wanted to pass a law that legal aliens can’t have handguns, legal aliens would have a pretty good argument that such a law is unconstitutional.

But it looks like Justice Thomas’ zombiefication of the Privileges or Immunities Clause stopped that.  Personally, I like Thomas’ jurisprudence.  I don’t agree with very many of his outcomes, and I find his personal story of racial resentment quite disgusting.  But, he’s the only truly iconoclastic thinker on the Court. He’s not afraid to stop splitting hairs and completely rethink constitutional interpretations and tests that just aren’t working. 

Still, I can’t say I’m onboard with Justice Thomas here, though.  I’d like to see the broadest interpretation of the Bill of Rights possible.  If the Constitution is a document of inalienable rights that we want other nations to aspire to, then the Constitution is a human rights document as much as a legal document.  This means that we should not be afraid to apply the Bill of Rights to all people falling under our laws, not just as “special privileges” for Americans.  The Bill of Rights are not some legal technicalities to be exploited by greasy haired defense lawyers; they create a system of fairness that, hopefully, convicts the guilty, frees the innocent, and keeps the police state in check. 

So, by my estimation, if Governor Brewer and Sheriff Joe want Arizona police to pull over American citizens and legal aliens for Driving While Brown (excuse me, “reasonable suspicion of being illegal”), then the well-pigmented of Arizona should be able to stand up for their freedom.   In fact, if the Minutemen and other “citizen militias” have the right to secure our borders with their God-given constitutional right to bear arms, then it’s only fair and just that brown-skinned people have the right to protect themselves with glocks in their gloveboxes, just like the NRA wants for its membership.  As Justice Scalia reasoned, self-protection is what this is about, right?  Somebody get Val Kilmer on P90X, because I see a modern-day adaptation of Tombstone in the making.

What We Know About Elena Kagan

By , May 17, 2010 3:44 pm

Elena Kagan giving it the ol' wide stance, if you know what I mean.

Gay activists are outraged that the Wall Street Journal ran this photo of the Supreme Court nominee on its front page, presumably because it’s supposed to “prove” that Elena Kagan is gay.  But what does it really prove?  Not to play the “I have friends” card, but I’ve played softball with Harvard softball players (hi Rachel!).  Beyond all doubt, they most certainly do not hit like this.  First, Kagan is choked up way too far on the bat.  Second, she’s got way too much weight on her front foot.  Third, she’s playing in a buttoned shirt with a collar. 

If we want to be frank about it, this picture tells us, in no uncertain terms, that Elena Kagan cannot play softball.  She’s the chick on your co-ed team you bat ninth and hide at catcher and hope she doesn’t get hit in the face on a throw home.  That’s what this picture tells us.  Gay?  Who knows?  Still, in this political environment, you get the sense that if the Bush Administration picked the national women’s basketball coach, he’d pass over Geno Auriemma and Pat Summit for Robin Pingeton to placate his base. 

Mr. Phelps Goes to Washington

By , March 21, 2010 10:10 am

The scariest image of two cute little girls since "The Shining"

It looks like the Supreme Court is finally going to weigh in on this Fred Phelps business.  You know Fred Phelps as the “God Hates Fags” nutjob from the Westboro Baptist Church in Topeka, Kansas.  Fred doesn’t just hate “fags”; he hates “fag enablers,” a corollary of which is that God punished America on 9/11 for tolerating homosexuals.  This is why Fred thanks God for “dead soldiers.”  It’s a string of non-sequiturs, but really, how far is this from the Dinesh D’Souza argument—or, as Stephen Colbert put it, “what other cultural editing notes should we take from the terrorists?”

Anyway, I have been protested by Fred Phelps.  Well, not me specifically, but the University of Kansas School of Law graduation is always protested by the Phelps clan.  To be fair, Fred has grown so bored with protesting the “KU Law Fags” (he seems to mean every KU law grad, not just the handful of gay ones) that he sends the B-team.  He also protested a ballet recital I went to at the Lied Center.  Apparently, ballet attendees are per se gay, even those of us in attendence who aren’t actually homosexuals . 

And then there was this awesome scene outside Lawrence High School in 2004 on opening night of the LHS production of The Laramie ProjectThe Laramie Project is a play about the aftermath of the death of Matthew Shepard, the twenty-two year old gay man tortured to death in Wyoming.  The play features Fred Phelps protesting Matthew Shepard’s funeral with his standard-issue “God Hates Fags” signage.  And, of course, Lawrencians showed up to protest Phelps, who was protesting the play.  So, in a single scene, you had people protesting Fred Phelps who was protesting the play in which Fred Phelps is a character protesting a funeral.  Charlie Kaufman, we await your screenplay. 

This website gives you a terrific rundown of the history of Fred Phelps, who was actually a lawyer before taking on a new life in his cult church.  Phelps was an honored civil rights attorney before a brutal, bizarre cross-examination of a court reporter, in which he called her a “slut” and relentlessly badgered her on the stand.  Some law professors at KU will talk about Phelps, who by some accounts is actually a very good lawyer.  The takeaway is that Fred Phelps is very attuned to the legal particulars of his protests and the laws restricting his free speech at soldiers’ funerals.     

In fact, Fred Phelps may very well win (his family is full of lawyers, and they represent him in court). My constitutional law professor, Stephen McAllister, testified several times in front of the Kansas Senate, warning them that the Supreme Court is very wary of “buffer zones” in First Amendment cases.  McAllister then advised the legislature on crafting a bill that would pass constitutional muster—which served as a model for the Maryland law before the Court now.   Now, as predicted, these funeral protest laws are coming before the Court. The First Amendment Center has a great rundown of the legal history of the case.  Because Phelps won in the Fourth Circuit, the fact that the Court took the case at all may not be a good sign for the Westboro Baptist Church.  Still, if you thought that KU v. K-State in the national semis is the dream Kansas-on-Kansas smackdown, I offer you Kansas Legislature v. Phelps.

*Update 3/21:  Scratch that “dream semifinal” bit.

Sotomayor Forgets Why Supreme Court Rules on Stuff

By , January 28, 2010 4:43 pm

Justice Sotomayor throws a high hard one at borderline retarded death row inmates represented by court-appointed rookie attorneys who ignore the basic rules of defense lawyering.

Overlooked in last week’s hubbub over Citizens United was Obama nominee Sonia Sotomayor’s first majority opinion on a criminal procedure matter.  This is no small deal:  Liberal legal commentators warned Democrats that Sotomayor—a former prosecutor—has an overwhelming appellate record of upholding government action in criminal cases.  So it should come as no surprise that Sotomayor’s opinion in Wood v. Allen upheld the death penalty sentence of a defendant represented by a court-appointed  first year lawyer who, um, chose not to pursue and submit mitigating evidence of the defendant’s borderline retardation. (This is a standard “Just because I had ineffective counsel, that doesn’t mean I should be executed”, Strickland v. Washington case.)   

My problem isn’t with the Court’s ruling (other than the fact that the Supreme Court seems unalarmed by the extraordinary narrowing of Constitutional habeas review, especially when it means that the state is putting more of its citizens to death under auspicious circumstances).  My problem is that Sotomayor missed the whole point of having the Supreme Court decide an issue. 

One of the primary purposes of SCOTUS review is to clarify the law when separate circuit courts interpret statutes differently.  Here, the Anti-Terrorism and Effective Death Penalty Act (AEDPA) has two provisions for how to deal with federal habeas review in death penalty cases:  One that calls for action when the state court was unreasonable in its ruling, and one that says the defendant must rebut the presumption that the state was correct by clear and convincing  evidence.  Do you apply both?  Do you get to choose one?  Under what circumstances?  The Eighth and Eleventh Circuits apply both rules to all petitions, and the Third and Ninth Circuits say that the different rules apply to different circumstances. 

So, this is the when the Supreme Courts steps in to say who’s right.  Except when they don’t.  Even though about half the oral argument in the case was spent clarifying and narrowing the case to this question, Sotomayor’s opinion doesn’t answer it.  Her holding, which six other justices signed onto, simply said, hey, the borderline retarded guy doesn’t win either way. 

Well, thanks for that, J-Lo, but you didn’t help us out very much.  The Eighth Circuit is going to keep doing its thing, the Ninth is going to do the other thing, and nothing changes.  See you in another couple years when some other guy gets put on death row because his inexperienced, overworked public defender screws up.

“Activist Judge” Haters: Citizens United…Against What, Exactly?

Dude, the Ya-Hoos don’t even know what “activist judge” means. We can do whatever the hell we want!

By now, you’ve heard about the Supreme Court’s totally ballsy ruling last week in Citizens United v. FEC, in which the Court held that corporations are people, money is speech, and therefore limiting corporate contributions to political groups violates First Amendment protections of Free Speech.  Some of these principles had been established before Citizens United, but their application here pretty much abolished campaign finance reform.  And, really, as much of a stretch as I think this is (especially for a Court that so literally and narrowly reads defendants’ rights in the Fourth, Fifth, and Sixth Amendment), well, I can’t get too mad about the substance of the decision.  Look, if liberals want to the Courts to interpret the Constitution in their favor, then win some presidencies and appoint more liberal judges—and quit being such wussies when it comes confirmation time.

The thing that makes me really steam-out-the-ears mad about this decision is the sheer hypocrisy of the Roberts Court’s procedural principals.  And make no mistake, one of the first things we learn in law school is that the side that controls procedure wins the substance.  Let’s review how Citizens United got to the Court, shall we? 

The political activist group Citizens United sought to air Hillary: The Movie, an anti-Clinton “documentary” on video-on-demand cable services.  The McCain-Feingold Act bans certain corporate-funded paid television time immediately before elections, and it also requires disclosure of corporate sponsors of election advertizing.  Sure enough, Citizens United took a ton of corporate money, meaning that Hillary was banned from cable on-demand.  During oral argument for this case last term, Citizens United argued for a narrow interpretation of the law to overturn the ban on Hillary, either by reading the statute not to mean “video on demand” or something along those lines.

During oral argument, the government’s lawyer defending the law, Deputy Solicitor General Malcolm Stewart, royally screwed up by suggesting that the government could regulate the publication of books prior to an election.  (For the record, Alito nailed him with this hypothetical, but Stewart could have easily deflected the question by using the Court’s distinction between political speech and commercial speech.)  This led the Court to postpone ruling on Citizens United to hear briefs on a question not even raised by the lawyers—whether to declare corporate funding of political advocacy groups who advocate for candidates as protected speech under the First Amendment, and thus could not be banned or even limited.  These questions had already been decided—even as recently as 2003.   

So, to sum up, here’s what the Court did:  Overturned a century’s worth of legal precedents on free speech, declared unconstitutional a bipartisan congressionally-passed law, stretched the text of the Constitution to declare money to equal “speech” and corporations to equal “we the people”—and in getting to the that ruling, answered Constitutional questions it didn’t need to answer, answered far more broadly than it needed to decide the case, and had the case re-heard because even the lawyers themselves didn’t think the Court would consider doing what it did.

In other words, you want ACTIVIST JUDGING?  That’s activist judging if ever an activist judge judged.  So, for all you I HATE ACTIVIST JUDGES haters in the house, you have to ask yourself:  Do you really hate “activist judges,” or do you just hate judges that rule in ways that don’t comport with your political views?  And if you still say you hate activist judges, then I patiently await your condemnation of the wholly radicalized Roberts Court.  It’s that, or you’re a raging hypocrite and all the talk about “Judicial Restraint” and “Judicial Deference” and “Constitutional Avoidance” was just a bunch of hot air and your jurisprudential theories are just as compromised by politics as those you criticize.

The Federalist Society types will no doubt argue that this judgment was necessary to expand Free Speech, and we can deal with the odd fact that conservative justices have worked to limit the freedom of speech for living, breathing human beings while expanding it for legal fictions.  That’s fine—there’s contradictions in every ideology, and sometimes you have to reconcile them after-the-fact.  But what gets me is that this is the same kind of Warren Court-ish behavior that conservatives have rightly decried as intellectually dishonest, thus completely undermining their whole rationale for, you know, hating on Sonia Sotomayor.

IMHO, This Yale Law Journal Article Is Kinda Dumb

By , January 18, 2010 8:49 pm

I told him the Chief Justice was like the President's umpire, but he wanted to make sure he's still the Decider. I told him he'd be the Deciders' Decider. That seemed to work well enough.

*There’s a lot (too much!) to digest about this article, but I think it’s illuminating to discuss why the Chief Justice John Roberts’ Justices-as-Umpire analogy fundamentally misrepresents the role of the Supreme Court.  I hope this discussion is a fun way of exploring the issue, as is this article I wrote for Flak Magazine two years ago. 

The Yale Law Journal has a forthcoming article from YLS ‘10 and YLJ Articles Editor Aaron Zelinsky, entitled “The Justice as Commissioner: Benching the Judge-Umpire Analogy.”  Zelinsky also posts legal commentary at The Huffington Post, where I also discovered he was a clerk for the Chief Justice of the Israeli Supreme Court.  Zelinsky’s article has gathered a little bit of blogo-buzz because it was mentioned by SCOTUSblog, which does for the Supreme Court what combining the IMDB and Roger Ebert’s site would do for movies. 

To be clear, I’m with Zelinsky on his most basic point—that John Roberts is full of crap (my analysis of why John Roberts knowingly, intentionally, and willfully misled the American public during his confirmation hearings can be found here).  Now, I understand that I went to a second-tier state law school and not the top-ranked law school in the country.  I get that. But speaking as both a former clerk for a trial judge and as ten-year varsity umpire, Zelinsky’s argument that the Supreme Court justice is like the Commissioner of Baseball is, well, kinda dumb.

First, Zelinsky argues that Justice Roberts “unmoored [the analogy] from its historical roots and firmly opposed to its original meaning.”  He makes his argument by combining two different ideas.  Zelinsky cites a Louisiana Supreme Court decision that says that judges shouldn’t be mere umpires, as in a wrestling match (more on that later)  Then he cites Judge John Milton Killits in Young v. Korrigan, who rejected the “sporting theory” of trial, arguing that a judge must be more than a mere arbitrator to rule upon objections to evidence” (emphasis Zelinksy’s).  As Professor Wigmore wrote in his influential treatise on evidence, sometimes judges must go beyond the text of the law to ensure justice—in other words, be an activist judge (emphasis mine). 

Next, Zelinsky cites a Justice Robert Jackson speech about Learned and Augustus Hand (yes, those are the greatest names in the history of jurisprudence), saying that you want from a judge is what you want from an umpire: “[to] call them as he sees them.”  Zelinsky correctly points out that Justice Jackson “sought to emphasize the impartiality of judges, rather than the degree of involvement they should have in proceedings.”  

But this is exactly Roberts’ point when he says that  “Umpires don’t make the rules; they apply them.”  Zelinsky makes a false distinction between the ideas of “judicial fairness” and “judicial restraint.”  In Roberts’ usage, they’re the same thing—a restrained judge is a fair one because a judge who goes beyond the rules substitutes his judgment for the law as written (Bruce Webber argues as much in a New York Times article Zelinsky cites for this article).  For example, the judicial restraint advocate would argue that because “the right to remain silent” isn’t in the Bill of Rights, the Supreme Court has no business saying this right exists (see Miranda v. Arizona, a landmark Warren Court “activist” decision).  In doing so, the Court isn’t acting fairly because it’s gone beyond the text of the Constitution for its decision.

The analogy to baseball is pretty easy to make.  Let’s say a team pulls off the hidden ball trick, and as an umpire I don’t think it’s sportsmanlike or “fair.”  Unless the pitcher balks or time was called, I can’t simply not call the runner out.  If I did, that would be activist umpiring—that is, substituting my own judgment about “fairness” for what’s explicitly laid out in the rule book.  Roberts doesn’t “unmoor” the analogy from its roots at all; he simply expounds a different judicial philosophy than Judge Killits. does (Make no mistake, though—John Roberts is one of the most activist justices in Supreme Court history).

So, onto Zeilinsky’s second point.  Though Zelinsky misreads Roberts’ judicial philosophy, he is right about the fact that the umpire analogy was directed at trial judges rather than Supreme Court justices.  His analysis isn’t entirely off: “Trial judges…make a large number of split second calls repeatedly throughout their careers on relatively settled issues of law,” like an umpire calling balls and strikes.  But trial judging is nothing like the crisp clarity of calling balls and strikes.  Those of us public school law clerks who have sat through marathon eight-hour sessions of testimony on, say, hotly contested questions about the retroactive applicability of zoning codes to Wal-Mart developments in midsize Kansas cities—well, let me tell you, that ain’t as clear as safe or out, fair or foul.

At most trials, judges don’t make a ruling once every minute or so on clearly contested questions.  You watch a bunch of testimony in which the attorneys grapple to assert their will (their version of the facts, their interpretations of the law) on the other side.  The judge is there to ensure that the verbal scrum is played by the rules.  Perhaps you can think of witness questioning as a series of pitches to a batter, but that doesn’t really capture the wrestling feel of a well-lawyered trial.  Good, aggressive lawyers will find out how far they can stretch the rules of evidence without having objections sustained.  In other words, the action in trials is messy, much more like line play in football (or the Louisiana Supreme Court’s wrestling analogy cited by Zelinsky). 

Sure, baseball umpiring can be messy, but you know exactly when you’re supposed to make a call and what the precise issue is (Inside or on the corner?  Did the runner beat the throw or not?).  Just like football officials could call holding on every play if they wanted to, and there’s a whole list of infractions to monitor, judges have a lot more room to interpret the rules than umpires.  Lawyers know this, which is why they test the boundaries of what a judge will allow.  Hearsay, incidental contact versus pass interference, Crawford exceptions, cut-blocking versus chop-blocking—the rules can be really murky, depending on the speed and quality of play.  Good coaches, like good lawyers, will do whatever they can do to get an advantage.  It’s the judge’s job to call a good game by establishing consistency based on how she interprets the rule book.  Interpreting pass interference is much more inexact than calling the strike zone, and the same goes for the “relevance” and “prejudicial” rules of FRE 401 and 403.

This brings us to Zelinsky’s central argument, that the Supreme Court Justice is not an umpire, but the Commissioner of Baseball.  His analogy is superficial at best.  I mean, shouldn’t this be obvious:  The Commissioner is, you know, one guy.  The Supreme Court is a group.  The Commissioner is an executive, and the Court is, well, a court.  I must be missing something.

So what are Zelinsky’s reasons for the “Justice as Commissioner” analogy?  First, he says that Justices and Commissioners provide guidance to lower courts.  That makes sense, I suppose, if the Commissioner is the high court.  But even then, high courts are groups.  No one guy gets to overrule judges.  That would be some form of totalitarianism, or an absolute or limited monarchy, or maybe the Constitution under the Unitary Executive Theory.  In all these forms of government, one guy, the chief executive of the organization, can’t be told by courts what to do.  The chief executive—you know, like the Commissioner of Major League Baseball.  The guy who negotiates tv contracts, works with the players union on labor disputes, and, in his least time-consuming job, maintains the umpiring crews.  The Commissioner can, apparently, tell the umpires to declare the All Star Game a tie from his seat in the front row, and he can advise the umps on how to call balks.  But, again, these are the actions of an executive with expansive powers, not an appellate court.

Second, Zelinsky says that the Commissioner, like justices, deliberate.   Which means that they think carefully about stuff.  And, as Zelinsky notes, they “give detailed explanations for their decisions, which allows others to use them for interpretive guidance.” 

Isn’t that like saying that Mel Gibson and John Daly are similar because they’re both entertainers who drink a lot?  I mean, of course, the Commissioner and Supreme Court justices think about things before they decide stuff.  I get what he’s saying—they both don’t make split second decisions.  But is that really the best distinction he can come up with?  As for the guidance piece, executives also issue guidance to subordinates on how to rule on stuff.  In fact, there’s a whole body of law dedicated to this idea:  Administrative Law.  That’s when the head of an administrative agency (usually part of the EXECUTIVE BRANCH!) issues guidance to subordinates on how to adjudicate, legislate, and enforce laws within the their specific area.  This head functions as the chief executive of the agency—sometimes she’s even a, you guessed it:  Com mis sion er!  We can assume, unless it’s Alberto Gonzalez, that the President and administrative heads think about decisions before they make them.  But that doesn’t make them a court.

Third, Zelinsky claims that the Supreme Court and the Commissioner of Baseball are similar because they take “countermajoritarian” action.  That’s a fancy way of saying that they make decisions the majority of their constituents aren’t going to like.  That’s another superficial distinction, but whatever.  The real problem is that Zelinsky’s whole analogy breaks down in his explanation of countermajoritarianism.  He says, “for the Supreme Court, this means striking down the will of the legislature.  For the Commissioner, this involves taking action contrary to the will of the owners.”

Dude, the owners elect the Commissioner!  Like how a board of directors elects a chief executive officer of a corporation!   The legislature doesn’t elect the Supreme Court!  It’s appointed by the President with the consent of the Senate!  That’s a completely different thing, isn’t it?  Being an elected executive by a board of a lot of people, versus being appointed by one guy? 

Zelinsky’s description of the Court’s and MLB Commissioners’ roles in racial segregation makes even less sense.  He tells how the Court overturned Plessy v. Ferguson with Brown v. Board of Education, thus integrating schools.  Then Zelinsky compares this action—an authoritative, law-making Constitutional decision—to Commissioner “Happy” Chandler’s “declarations” in support of integrating baseball against the owners’ will.  But this isn’t even close to the same thing.  Perhaps they don’t teach Marbury v. Madison at Yale—I don’t know, I went to state law school.  The Supreme Court exercises Judicial Review, meaning that the Supreme Court can declare the actions of other branches of government unconstitutional.  That’s why school districts could no longer have “black schools” and “white schools” after Brown declared “separate but equal” facilities as violating the Equal Protection Clause of the Fourteenth Amendment of the Constitution—the Supreme Court actually makes rules. 

The equivalent action by the Commissioner of Baseball would be if there were all-black teams and all-white teams, and the Commissioner—against the will of the majority of owners—would unilaterally assert that this violated The Major League Baseball Constitution.  And then the teams had to integrate their players.  Zelinsky points out in his Footnote 48 that “Chandler was more than a bit player in these historic events,” but that’s not the same as actually making a judicial rule-making decision.  Rather, he was like an executive, organizing behind the scenes and negotiating his position to change the organization.

Zelinsky’s fourth point is barely worth mentioning.  Here, he argues that the Commissioner and the Court both have rule-making power.  Ok, fine—but as we’ve already established, the Commissioner’s power is of the executive kind, not judicial (for a discussion of the history of the strike zone, check out this great 1988 article by Peter Gammons).  Zelinsky then analogizes the vagueness of Due Process and Equal Protection Clauses of the Fourteenth Amendment to the “Best Interests” Clause of Article II, Section 3 of the Major League Baseball Constitution.  Zelinsky seems to have skipped over the section (Article II, Section 2(A)) that says that the Commissioner is “To serve as the Chief Executive Officer of Major League Baseball.”  That, and the Best Interests Clause isn’t a substantive rule in and of itself like Due Process or Equal Protection.  Rather, it’s procedural—it merely grants the Commissioner broad executive powers.  They’re two completely different kinds of rules whose only similarity is vagueness.    

The final nail in the Commissioner-as-Court coffin is the fact that Commissioner Selig created a fourteen member “advisory committee” that will advise the commissioner on on-the-field matters.  It would be like a Supreme Court of Baseball Rules if it had rule-making power, which it doesn’t.  That’s still invested in the Chief Executive of Baseball, which is the Commissioner. 

So, if this attempted takedown of Chief Justice Roberts’ umpire analogy is so dumb, what’s my smart-ass alternative?  Well, I’ve got one for you:  The Supreme Court is most like the NFL Competition Committee.  I explain this toward the end of this article from two years ago, but I can give you the quick bullet points here. 

  1.  The NFL Competition Committee is created by NFL Constitution as a body separate from the Commissioner’s executive functions.  Its sole purpose is to interpret rules—a judicial function.   
  2. The Committee can also recommend new rules that have to be approved through legislative channels (an owners vote).  This is similar to how the Constitution works:  The Court interprets existing law, but if the desired result isn’t reachable with the law as written, the Court will issue a decision and sometimes recommend that Congress amend or add a new law
  3. It’s an eight person body that deliberates amongst itself, not simply a unitary executive that unilaterally issues rulings.
  4. Philosophy matters in interpreting rules.  The Committee’s deliberations are often marked by value judgments that guide interpretation (see this interpretation of the Illegal Contact penalty) 

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