Sunday, November 23, 2014

On Immigration, Obama on Sound Legal Ground

      President Obama has powerful legal arguments on his side to defend his decision to protect approximately 4 million undocumented aliens from the threat of deportation. But Obama weakened his case in the court of public opinion by the politically motivated decision to defer formalizing this policy until after the midterm congressional elections.
      The 33-page legal memorandum by the Justice Department’s Office of Legal Counsel (OLC) provides a well-reasoned and well-documented conclusion that the president’s policy is “a permissible exercise of [the Department of Homeland Security’s] discretion to enforce the immigration laws.” As the memorandum explains, the policy specifies somewhat restrictive criteria for eligibility for the time-limited protection from deportation and limits the legal rights or benefits for immigrants covered by the policy: work permits, yes; health benefits, no; and no legalization or path to citizenship.
      The memorandum cites Supreme Court precedents, congressional enactments, and longstanding regulations as legal authority. The categorical protection for immigrants who have been in the United States for four years and have no criminal record makes sense given the inevitable need to focus law enforcement resources on a small fraction of the 11 million undocumented aliens in the country today. And the policy is seen as “consonant with” congressional policy and as furthering “an important humanitarian interest,” to wit, “family unity.”
      The OLC memo gains credibility by its second conclusion that the same protection from deportation — in legal parlance, “deferred action” — cannot be extended to the parents of immigrants who have been previously been granted that status. The memo finds “no precedent for using deferred action to respond to humanitarian concerns arising from previous exercise of deferred action.”
      The strong legal and policy arguments in support of the policy all but destroys the administration’s justification for delaying the move until after the midterm elections. All of the reasons for the policy were just as strong a year ago as they are now. Arguably, Obama needed to delay until time had effectively run out for the House of Representatives to act on the immigration reform bill already passed by the Senate.
      By September, however, the administration had no reason for further delay except to avoid political damage to Democratic candidates from attacks by anti-immigration Republicans. Ironically, many political observers think the administration’s calculation backfired by reducing Latino voters’ turnout for Democratic candidates without in any way lessening the anti-Obama sentiment among Republicans and independents.
      The political debate over the policy is quickly moving into the courts. Joe Arpaio, the anti-immigrant sheriff of Maricopa County, Ariz., immediately vowed to sue over the policy; two Tennessee legislators said they would introduce resolutions urging that the state contest the policy in court. House Speaker John Boehner, fresh from filing suit against the administration over the Affordable Care Act, promised that the House would take unspecified action to challenge the immigration policy.
      In a different era, legal observers could confidently predict that the courts would steer clear of what is clearly a political dispute. The regrettable reality these days, however, is that partisan politics have spilled over into the courts. Witness the rulings on same-sex marriage. With one exception, the few federal judges to reject marriage rights for same-sex couples have all been Republican appointees. And GOP-appointed judges have been behind the legal setbacks dealt so far to the Affordable Care Act.
      Beyond releasing the OLC memo, the administration is touting a letter defending the immigration policy signed by 10 constitutional scholars ranging from the Harvard liberal Laurence Tribe to the University of Chicago conservative Eric Posner. The signers acknowledge differences over immigration policy but join in concluding that the “executive actions” announced by Obama are “lawful.”
      The OLC memo answers some of the criticisms of Obama’s move heard before the president’s announcement and since. Executive discretion in granting “deferred action” is well established, the memo says, as long as the status can be withheld on a case-by-case basis. Among five precedents cited is the move by President George H.W. Bush in 1990 to grant deferred-action status to approximately 1.5 million parents and children of aliens granted legal status under the 1986 amnesty approved by Congress and signed by another Republican president, Ronald Reagan.
      Other similar moves since then have granted deferred-action status to victims of domestic violence and human trafficking. Most recently, Obama’s so-called Deferred Action for Childhood Arrivals program (DACA) removed the threat of deportation from the self-styled “Dreamers,” the under-30 immigrants who for the most part have known no other country than the United States.
      The OLC memo discloses that the office gave oral instead of written approval for Obama’s earlier, but the information only underscores the more formal green-light for the latest move. The memo also acknowledges that the latest move benefits more immigrants than any of the similar precedents, but finds the size irrelevant to its validity as long as the policy does not amount to an “abdication” of enforcing immigration laws.
      Obama took to the political hustings immediately to argue and rally support for his policy even as Republicans mounted sharp political attacks. When the litigation begins, judges will face the challenging task of tuning out the politics and focusing only on the law, which strongly supports Obama’s position.

Sunday, November 16, 2014

In Alabama, Still Segregating Voters by Race

      The white political establishment in Tuskegee, Ala., hit on a simple way in the late 1950s to hold on to power despite the city’s growing black population. The state legislature simply redrew the city’s boundary lines into what the Supreme Court later described as “a strangely irregular 28-sided figure.” The new boundaries fenced out all but a few of the 40 0 African Americans who had been living within Tuskegee’s city limits and no white voters.
      The Supreme Court in 1960 had no difficulty in spotting an apparent violation of the political rights of the city’s black population. In a unanimous decision, the court ruled in Gomillon v. Lightfoot that segregating the city’s residents by race violated either the Fifteenth Amendment’s protection of voting rights or (according to one justice) the Fourteenth Amendment’s Equal Protection Clause.
      Drawing legislative districts is more complicated than drawing city limits, and the process is all the more complicated thanks to a series of Supreme Court decisions and congressional enactments beginning in the 1960s. But Alabama’s white political establishment, functioning through the state’s Republican Party, has nevertheless found a way to neuter the political strength of black Alabamians, who comprise about one-fourth of the state’s population.
      With Republicans controlling both houses of the state legislature, GOP lawmakers drew up new district lines after the 2010 census that packed African Americans into districts that already had black majorities. The line-drawing helped ensure that African Americans hold about one-fourth of the seats in both chambers, but it also limited any ability of black voters to form effective coalitions with white Democratic voters in other districts.
      Black legislators and the biracial Democratic Conference challenged the redistricting plan in federal court as a violation of political rights protected either by the Constitution or the federal Voting Rights Act. A divided three-judge court upheld the plan. And in Supreme Court arguments last week [Nov. 12], conservative justices led by Chief Justice John G. Roberts Jr. appeared ready to reward Alabama Republicans with a decision upholding the racial line-drawing as nothing more than partisan redistricting politics as usual.
      Alabama’s Republican solicitor general, Andrew Brasher, told the justices that the plan was aimed at protecting African American voters’ ability to elect candidates of their choice while complying with the Supreme Court’s “one person, one vote” rule for equal-population districts. Liberal justices in particular, Elena Kagan — appeared sympathetic to the plaintiffs’ arguments that the state had adopted an unnecessarily strict standard for equal population so as to reduce rather than protect African Americans’ influence at the polls.
      The seemingly simply “one person, one vote” rule became much more complicated with a series of Supreme Court decisions starting in the 1990s that limit the use of race in drawing district lines. Under the rulings, race cannot be the “predominant” factor in drawing district lines in comparison to race-neutral considerations, such as compactness. At the same time, redistricting must comply with Voting Rights Act requirements to prevent any “retrogression” in minority voters’ ability to elect candidates of their choice.
      Roberts saw the state as facing conflicting demands to add enough black voters to underpopulated districts to preserve their political strength but not so many as to “pack” those districts and limit their influence in others. “They have to hit this sweet spot between those two extremes without taking race predominantly into consideration?” Roberts said in a rhetorical question to the black legislators’ lawyer, New York University law professor Richard Pildes.
      Brasher gladly accepted Roberts’s description of the state’s delicate task and defended its solution under sharp questioning from liberals Kagan and Ruth Bader Ginsburg. Brasher explained that the state had adopted a maximum range of 2 percent deviation between districts’ population. In addition, the redistricting plan avoided any reduction in the black percentages in majority-black districts so as to avoid so-called “retrogression” of minority rights.
      Kagan bluntly described the argument as “a mistaken understanding of what retrogression entails.” Ginsburg echoed the point. “If that’s a misunderstanding of what [the Voting Rights Act] requires,” she said, “then the whole thing is infected by that mistake.”
      Ironically, the default argument for upholding the redistricting plan may be to defend the whole thing as a partisan exercise by Republican legislators to protect the party’s interest at the expense of opposition Democrats. The Supreme Court has ruled, in theory, that political gerrymandering can go too far, but it has never found one that went too far. And two justices, Antonin Scalia and Clarence Thomas, would bar judicial review of partisan line-drawing altogether.
      The justices seemed both divided and uncertain after 70 minutes of argument in the case, Alabama Legislative Black Conference v. Alabama. In a nuanced presentation, Solicitor General Donald Verrilli presented the Obama administration’s position that the case should be sent back for further proceedings to examine the role that race played in regard to individual districts.
      The legal complexities had the effect, however, of obscuring the underlying political realities. Republicans in Alabama and elsewhere in the South are quite happy to segregate voters by race these days. Black voters packed into majority-minority districts elect enough black Democrats to satisfy the Voting Rights Act, but not enough to have political power, and white Democrats are a vanishing species in office. The tactics are more subtle than those of the bad old days, but hardly faithful to the constitutional principle of equal political rights for all.

Friday, November 7, 2014

On Marriage Equality, a Blessing Well Disguised

      The federal appeals court decision on Thursday [Nov. 6] upholding same-sex marriage bans in four states may be a blessing in disguise for advocates of marriage equality because it will force the Supreme Court to confront the issue, quite likely during this term. But the blessing is well disguised in an act of judicial laissez-faire that leaves the rights of same-sex couples in Kentucky, Michigan, Ohio, and Tennessee unprotected against political inertia and public disregard.
      The majority opinion from the Sixth U.S. Circuit Court of Appeals turns aside the same-sex couples with a civics class lecture about the virtues of social change through the political process instead of judicial decree. It accepts as binding a one-sentence Supreme Court precedent from more than 40 years ago that has clearly been overtaken by changes in legal doctrine.
      The ruling goes on to approve with utmost deference the flimsy arguments for privileging opposite-sex couples’ marriages, and only theirs, in order to promote “responsible procreation.” It allows same-sex parents to be relegated to second-class legal status based on unproven fears about adverse effects on the children’s upbringing and wellbeing. And it rests on a straw man argument that an exclusionary law can be struck down on the basis of unconstitutional animus only by proof of malicious intent on the part of legislators or voters, not by the objective impact of the law.
      The ruling came three months to the day after the three-judge panel had heard a full three hours of arguments in what were technically six cases from the four states. From the outset, it was clear that the deciding vote lay with Jeffrey Sutton, a former Ohio solicitor general, Federalist Society member, and darling of legal conservatives.
      Thus, it was no surprise that Sutton emerged as the author of the majority opinion released late in the afternoon. Sutton was joined in the opinion by Judge Deborah Cook, who like Sutton was appointed to the appeals court by President George W. Bush. A strong dissent came from Judge Martha Craig (Cissy) Daughtrey, a veteran jurist with unconcealed liberal views appointed to the appeals court in 1994 by President Bill Clinton. (Disclosure: Daughtrey is a personal friend of more than 40 years’ standing.)
      Sutton’s opinion gives little by way of red meat to the confirmed anti-gay opponents of marriage equality. Gay couples, he says, are fully capable of forming loving relationships and of raising children in stable families. He acknowledges the “lamentable” prejudice against gays and lesbians and the tangible costs from refusing marriage to same-sex couples.
      As Daughtrey points out in her dissent, however, Sutton does not consider the same-sex couples’ rights to be the issue for the court to decide. Instead, Sutton says, the question is “who decides” — federal courts or what he calls “the less expedient, but usually reliable, work of the state democratic processes.”
       Sutton’s answer will cheer the advocates of judicial restraint. Political process and structure, he says, are “the most reliable, liberty-assuring guarantees of our system of government,” not the courts. History includes many examples when courts were needed to protect individual rights. In any event, as Daughtrey says in dissent, the either-or dichotomy that Sutton posits is simply a “false premise.”
      Sutton is also off-base in relying on the Supreme Court’s curt rejection of same-sex marriage rights back in 1972. A succession of federal courts, including four courts of appeals, have found that precedent no longer binding. Sutton himself acknowledges its diminished weight, but Daughtrey is more to the point in dismissing it as “a dead letter.”
      Sutton acknowledges the rulings from other courts, but finds them unpersuasive because the other courts have not spoken with a single voice in their legal rationales. One by one, he rejects each of the rationales. He devotes special attention to the argument that same-sex marriage bans are based on unconstitutional animus against gays and lesbians.
      In Sutton’s view, it is both impossible and unfair to attribute anti-gay prejudice to all the legislators and voters who have approved or kept in place the traditional definition of one-man, one-woman marriage. Daughtrey correctly responds that the Supreme Court has not required evidence of “hostile intent” to find unconstitutional animus on the basis of a law’s objective effect.
      The Supreme Court confounded legal handicappers as the justices opened the new term in October by turning aside the marriage cases that had been teed up for review. The inaction seemed to substantiate Justice Ruth Bader Ginsburg’s suggestion that the court was waiting for a conflict at the circuit court level before stepping in.
      Sutton’s opinion now creates that conflict. Lawyers for the plaintiff couples in the Michigan and Ohio cases promptly said that they would promptly file petitions asking the high court to hear their appeals. Time is short, but the calendar allows the petitions and the states’ replies to be filed in time for the justices to consider the cases by mid-January — the customary deadline for arguments and decision this term.
      Sutton advises the court to let the political process continue so that “fellow citizens,” gay and straight alike, can resolve this “new social issue” in “a fair-minded way.” Daughtrey has a strong rejoinder. If the courts shirk their “responsibility to right fundamental wrongs left excused by a majority of the electorate,” she writes, the constitutional system of checks and balance will “prove to be nothing but shams.”

Sunday, November 2, 2014

Campaign Spending Tilts Courts to Right

       Campaign spending in state judicial elections has apparently reached a new high in 2014. And, if past is prologue, the likely result will be harder times ahead for criminal defendants and suspects.
      The trends are worrisome for the goal of an independent judiciary, but nothing suggests a likely reversal. Free-speech rulings make it difficult to limit or regulate spending in judicial elections. In addition, divisions on legal issues are now more than ever sharply drawn along partisan lines easy to convey to voters in 30- or 60-second television spots. And, try as they might, judicial reformers are making little progress in moving away from contested elections for judgeships at the state level.
      Three liberal groups have thrown the spotlight on judicial elections in well documented reports issued within the past two weeks. In the first of the reports, distributed by the American Constitution Society (ACS), researchers at Emory University School of Law examined the impact of what they called “the explosion in television attack advertisements in state supreme court elections” over the past two decades.
      The careful statistical analysis in the report, entitled Skewed Justice, confirms the common-sense supposition: courts that have gone through “soft on crime” campaigns turn out to be “less likely to rule in favor of defendants in criminal appeals.” An increase in television advertising, the report finds, can result in an 8 percent decrease in rulings favoring criminal defendants on appeal. And states that removed prohibitions against corporate or union spending in the wake of the Supreme Court’s Citizens United decision saw a 7 percent decrease in pro-defense rulings on appeal.
      In the second report, the Brennan Center for Justice and the advocacy group Justice at Stake highlighted what they called “a surge of last-minute outside spending” in supreme court elections in five states: Illinois, Michigan, Montana, North Carolina, and Ohio. Based on required filings with the Federal Communications Commission (FCC), the report found $1 million in TV ad buys as the final week of campaigning in those contests began. Overall, the report found $12 million in judicial campaign spending in 10 states since January.
      Those sums may seem trivial compared to the amounts being spent in congressional races — for example, the record $100 million in spending by the two opponents in North Carolina’s hotly contested Senate race. But the interest groups financing judicial election campaigns know that a little money goes a long way in those races. Voters get little information about judicial elections apart from the paid advertising, and incumbent judges face ethical constraints in raising the money needed to respond.
      Law-and-order is the dominant theme in the advertising in state supreme court elections. In Ohio, a group called American Freedom Builders made a $375,000 ad buy for spots that included one praising incumbent Justice Judith French for upholding the death penalty and tough criminal sentences. In Michigan, the Virginia-based Center for Individual Freedom spent $146,000 for advertising that praised two incumbent Republican justices for “throwing the books at violent predators.”
      History shows that the law-and-order attack ads work. In California, three state supreme court justices, including Chief Justice Rose Bird, were ousted in 1986 after a campaign focused on the court’s repeated reversals in death penalty cases. A decade later, Tennessee Supreme Court Justice Penny White fell victim in 1996 to a similar campaign.
       The well-heeled groups behind this increased spending are not primarily interested in law enforcement and public safety. Business interests hope to win favor from state supreme courts on civil litigation, workers’ rights, consumer protection, and other regulatory issues. Republican Party organizations are spending money conscious of the partisan stakes in redistricting cases that may wind up before state supreme courts.
       Those issues do not resonate with voters as much as ads that pillory justices for ruling in favor of criminal defendants. The “sophisticated” special-interest groups financing the judicial campaigns “understand that ‘soft on crime’ attack ads are often the best means of removing from office justices they oppose,” the report states.
       Concern about the political impact of judicial elections extends to lower courts as well. At the Supreme Court, Justice Sonia Sotomayor suggested in November 2013 that Alabama’s system of partisan elections helped explain the unusual number of cases in which judges imposed the death penalty after juries had voted for imprisonment instead.
       Judicial reformers have worried about the political threats to judicial independence at least since the 1930s, but they are up against an ingrained public belief in elections. One reform widely adopted is the so-called Missouri plan: judges are appointed after a merit selection process and then run in yes/no “retention” elections. That system did not protect the California or Tennessee justices from partisan attack and defeat.
       Another reform, nonpartisan elections, is not necessarily effective either. The state supreme court contests in North Carolina are technically nonpartisan, but the opposing candidates are easily identifiable as Republicans or Democrats. For several years, North Carolina used public financing to try to immunize judges from political pressures, but the Republican-controlled legislature abolished that system in 2013.
       Judicial politics may be dirty business, but handwringing will make it no cleaner. Those groups that want to strengthen the independence of the judiciary have no choice but to respond in kind to the campaign tactics being used by those groups that want to bend judges to their will.

Sunday, October 26, 2014

Supreme Court Keeps a Widow Waiting

      Ruth Bader Ginsburg won one of her first Supreme Court victories against sex discrimination by arguing in behalf of a young Air Force officer, Sharron Frontiero, over housing and medical benefits for her recently married husband. Married servicemen got the benefits automatically, but servicewomen had to prove that their husbands depended on them for more than half of their support.
      The Supreme Court ruled for Frontiero in 1973 in a decision that laid the groundwork for what ultimately became the current “intermediate scrutiny” test used to judge the validity of laws treating men and women differently because of their sex. Ginsburg often relates the back story of the decision as she recounts the history of gender equality in the United States.
      Ginsburg now needs to meet Kathy Barker, a widow who is being denied Social Security survivor benefits because of another discriminatory rule adopted by the federal government. The Social Security Administration (SSA) denied Barker benefits in September because the state of Texas, where she now lives, does not recognize her legal marriage to her now deceased wife, Sara, in Massachusetts in 2010.
      Texas is one of a rapidly dwindling number of states — now 18 — with laws on the books denying marriage rights to gay or lesbian couples. Three federal appeals courts have ruled same-sex marriage bans unconstitutional; the Supreme Court earlier this month decided to leave those decisions alone rather than review them to produce a nationwide ruling on the issue. Ginsburg said in September that there was “no hurry” for the court to act until there was a conflict among the federal circuits.
      Barker’s case proves the need for the court to act — sooner, not later. The Obama administration has gone pretty far in recognizing same-sex marriages for purposes of federal law since the Supreme Court struck down the Defense of Marriage Act (DOMA) in 2013. SSA announced in June that it would provide marriage-based benefits to married same-sex couples living in states that recognized their marriages. But the agency said that it is bound by a statutory provision to apply Texas law —  the state of Barker’s current “domicile” —  in determining her eligibility for spousal benefits.
      The civil rights organization Lambda Legal filed a lawsuit on Barker’s behalf last week [Oct. 22] in federal court in Washington, D.C., contesting the SSA’s policy. The agency’s “continued incorporation of discriminatory state marital laws” to deny spousal benefits violates the U.S. Constitution, the lawyers alleged in the 33-page lawsuit. Joining the suit as a co-plaintiff is the Washington-based advocacy group the National Committee to Preserve Social Security and Medicare.
      Barker is no less entitled to spousal Social Security benefits than Frontiero was when she applied for medical and housing benefits for her husband. Kathy and Sara had been together for 30 years before they got married late in 2010 in Massachusetts, where they had met and where Sara’s family lived. They had moved to Texas in 1984 to find less expensive housing and be closer to Kathy’s family.
      Sara survived breast cancer in the late 1980s, but she was diagnosed with an aggressive form of cancer in 2010 — prompting their decision to get married later that year. With Sara’s condition worsening, they both retired from their jobs in June 2011. Kathy was a full-time caregiver until Sara died in March 2012.
      Social Security provides a lump-sum death benefit and monthly survivor benefits to the surviving spouse of an opposite-sex marriage; since June, the same benefits have been available to the surviving spouse of a same-sex couple in states that recognize same-sex marriages. But the agency points to a wordy statutory provision (42 U.S.C. § 416(h)(1)(A)(i)) as requiring it to apply the marriage law of the state where the surviving spouse is “domiciled” at the time of the application for benefits or where the deceased spouse was “domiciled” at the time of the death.
      Based on Texas law, the agency in September denied Barker’s application for what she expected to be about $1,210 per month in survivor benefits. With those benefits, Barker, who is 62, says she can delay applying for her own retirement benefits until age 66; applying for early benefits would reduce the monthly payments by about $583 (from $2,130 to $1,547). The added monthly lifetime benefits, the suit notes, “would make a significant difference in the quality of Kathy’s life as she ages.”
      The lawsuit notes the “multitude” of state and federal courts that have ruled rule same-sex marriage bans unconstitutional in the year-plus since the DOMA decision, including a federal district court in Texas in February. The Fifth U.S. Circuit Court of Appeals is expected to hear arguments on the case before the end of the year; other circuit courts have moved faster, and the Fifth Circuit’s conservative bent makes the outcome uncertain.
      Barker’s Social Security suit will take a while to advance through the courts.  Perhaps a ruling by the Fifth Circuit to uphold the Texas law will give the Supreme Court what Ginsburg says it needs to resolve the underlying issue. Some court watchers say the delay is all for the good: giving the justices and the public time to get ready for the seemingly likely nationwide ruling to recognize freedom to marry for all. In the meantime, however, Kathy Barker waits for a Social Security check.

Sunday, October 19, 2014

In Texas, Many Voters Won't Be Counted

      The Supreme Court worked well past midnight Friday before allowing the state of Texas to enforce a voter ID law that a federal court judge had found to amount to intentional discrimination against African Americans, Hispanics, and the poor. The unexplained order, with three liberal justices in dissent, mocks all those pre-election public service announcements urging the importance of each and every qualified citizen to go to the polls and cast his or her vote.
      The court included no explanation for its action in the order, issued in the predawn hours on Saturday morning. By inference, however, justices in the majority apparently agreed with the state’s argument that it would be disruptive to change voting rules so close to the Nov. 4 election. In a strongly worded dissent, Justice Ruth Bader Ginsburg said the argument is weak to begin with and is outweighed by the damage from disenfranchising hundreds of thousands of would-be voters under a discriminatory law. Justices Sonia Sotomayor and Elena Kagan joined the dissent.
      The court’s action turned aside an effort by a coalition of civil rights groups, backed by the Obama administration, seeking to reinstate an injunction against using the law issued on Oct. 9 by a federal judge in Corpus Christi. Judge Nelva Gonzales Ramos had concluded, after a two-week trial, that the 2011 law could disenfranchise as many as 600,000 would-be voters who lack any of the government-issued IDs called for in the law.
      Texas went to the conservative-dominated Fifth U.S. Circuit Court of Appeals complaining about changing voting rules so close to an election. The state relied in large part on a Supreme Court precedent, Purcell v. Gonzales (2006), that has been widely interpreted as barring courts from ordering changes in voting procedures on the eve of an election.
      A three-judge panel consisting of two conservative Republican appointees and a rookie Obama appointee agreed with the state and put Ramos’s injunction on hold. Writing for the two GOP appointees, Judge Edith Clement said the state had an interest in “preserving the status quo” so close to the election. The Obama appointee, Judge Gregg Costa, said the court should be “extremely reluctant” to allow an election to be conducted under a law found to be discriminatory but bowed to the Supreme Court precedent.
      The Supreme Court has been unusually busy this election season with voter ID laws. For those keeping score, the court in three previous cases had allowed Ohio and North Carolina to enforce laws imposing new restrictions on voting but blocked Wisconsin from implementing its new voter ID requirements. The distinguishing factor in the Wisconsin case, it would seem, was that a federal court judge had blocked the law in July and the Seventh Circuit had changed the rules in September by lifting the injunction after some absentee ballots had already been mailed out.
      Surely, late changes in voting procedures can be a problem for election officials. As Ginsburg pointed out in the dissent, however, Texas would have had no great problem in reverting to the pre-2011 procedures for voter identification. She also noted that Judge Ramos had found the state’s efforts to educate voters about the ID law had been “woefully lacking” and “grossly” underfunded.
      Ginsburg also contended that the Supreme Court precedent, Purcell, has been given exaggerated importance. The court’s brief, unsigned opinion in that case overturned a decision by the Ninth Circuit one month before the 2006 election to block an Arizona voter ID law. The court faulted the Ninth Circuit, however, not so much for the timing of its decision as for its failure to explain its reasons for blocking the law after a lower court had upheld it.
      The Texas case is completely different. Ramos’s 147-page opinion is thoroughly documented and backed by precedent; the Fifth Circuit majority makes no effort to question her conclusion that the Texas legislature knew and intended that the law would make voting disproportionately harder for African Americans and Hispanics than for Anglos. The Supreme Court majority similarly did not engage on the racial discrimination issue; the unsigned order merely recites in legalese that the plaintiffs’ application to vacate the Fifth Circuit’s stay of the lower court injunction is denied.
      Procedurally, the court’s inaction points to a fallacy of its decision in 2013 to effectively eliminate the preclearance requirement imposed on Texas and other Southern states under the 1965 Voting Rights Act. In his opinion for the conservative majority in that case, Chief Justice John G. Roberts Jr. noted that the act’s nationwide provision against racial discrimination in voting, section 2, would still be available as an enforcement tool. Joshua Block, a lawyer with the American Civil Liberties Union, took to Twitter to note the contradiction. “Remember when SCOTUS said the availability of speedy injunctive relief under Section 2 was an adequate substitute for pre-clearance?” he tweeted.
      Attorney General Eric Holder interrupted his weekend long enough to denounce the court’s action. It was “a major step backward,” Holder said, for the court to leave in place a law “designed to discriminate.” Perhaps the impact of the law will be less than its opponents fear, but the court’s decision to let the law stand departs from the widely shared civic belief in a universal franchise as a fundamental principle of modern American democracy.

Sunday, October 12, 2014

On Marriage Rights, Court Sows Doubt and Delay

     Liberty finds no refuge in a jurisprudence of doubt.
— Planned Parenthood v. Casey (1992) (plurality opinion)

      The Supreme Court had egg on its face twice last week as it dealt with one of the most sensitive issues on its docket: marriage rights for gay and lesbian couples. First, the long orders list distributed to reporters on Monday [Oct. 6] omitted 33 pages, including those listing the court’s stunning decision not to hear appeals from five states seeking to salvage laws banning same-sex marriages.
      Three days later, Justice Anthony M. Kennedy signed an interim order blocking same-sex marriages in Nevada even though the state had made no request to delay complying with the federal appeals court decision striking down its ban. The court’s public information office was forced into acknowledging the next day that the Nevada case was listed by mistake on an order that did put things on hold in Idaho.
      These were paperwork mistakes made by the court’s staff: the court clerk’s office in the first instance, perhaps one of the justice’s law clerks in the other. The week’s bigger mistake, however, was the responsibility of the justices themselves: the confusion created by their walking away from the marriage equality issue at least for the moment.
      The justices had cases from five states  — Utah, Oklahoma, Virginia, Wisconsin, and Indiana — fully teed up for them to consider. The losing and the winning sides in all five urged the court to hear the cases for a speedy, nationwide resolution of the issue.
      Instead, the court simply denied certiorari — to use the legal term for declining to review the lower court decisions — without a single word by explanation from any of the justices. Samuel Bagenstos, a law professor of the University of Michigan, aptly noted on Twitter that he could recall no instance in which the court had declined to review lower court decisions that had ruled so many state laws unconstitutional under federal law.
      True, the cases did not present a conflict among federal circuit courts, the most frequent criterion for the Supreme Court to take up a case. Indeed, federal courts have been one ruling short of unanimous in the past year in striking down state bans on same-sex marriages. A federal judge in Louisiana in August broke the string of 30 or so consecutive victories for gay marriage advocates.
      All the other federal courts, including the appeals courts for the Tenth, the Fourth, the Seventh, and, most recently, the Ninth Circuit, have found the gay marriage bans unconstitutional. As the justices returned from their summer recess, three of those rulings were ready for their consideration.
      The court had skirted the marriage issue in June 2013 when it dismissed, for lack of legal standing, an effort by the proponents of California’s Proposition 8 to reinstate the state’s gay marriage ban after the Ninth Circuit had struck it down. This summer, however, Justice Ruth Bader Ginsburg told the Associated Press’s Mark Sherman that the court would not duck the issue a second time around.
      Ginsburg later appeared to contradict herself by telling a law school audience on Sept. 16 that there was “no urgency” for the court to decide the issue in the absence of a circuit conflict. As Ginsburg knows full well, however, the court often agrees to hear a case even without a circuit conflict because of the importance of the issue. Surely, marriage rights for same-sex couples qualifies.
      With four votes needed to grant certiorari, the cert denials imply as a matter of mathematics that one or more of the four liberal justices are not ready to force the issue. The same apparently goes for the four conservatives, including Chief Justice John G. Roberts Jr., who dissented from the ruling in June 2013 to strike down the federal Defense of Marriage Act (DOMA). And maybe Justice Anthony M. Kennedy is not ready for a showdown on the issue either.
      As suggested by BuzzFeed’s Chris Geidner, Kennedy may be waiting for gay marriage to be legal in so many states that the court’s eventual ruling will simply ratify a national consensus. That strategy accords with Ginsburg’s favorable recollection of the court’s decade-long wait before striking down state bans on interracial marriages in 1967. By then, Ginsburg has recalled, most of those state laws were gone and the country was ready to accept a court decision to get rid of the rest.
      If this is the strategy, perhaps it spares the Supreme Court from politicized attacks, and perhaps it even serves the eventual cause of marriage equality. The court’s decision on Friday [Oct. 10] to turn down Idaho’s bid to delay gay marriage may indicate that any other states seeking to delay the inevitable will also be turned away.
      Still, the court’s actions clearly contradict the passage attributed to Kennedy at the start of the plurality opinion reaffirming abortion rights 22 years ago. Despite clearing the way for gay marriages in a dozen or more states, the court last week left the law in doubt and justice delayed for same-sex couples in the 15 other states still awaiting rulings. It was not the court’s proudest moment.