Friday, August 22, 2014

Ferguson Shows Need for Police Accountability

     The shooting death of Michael Brown, an unarmed black teenager, by a white police officer in the predominantly African American St. Louis suburb of Ferguson, Missouri, has once again opened the racial fault line in the United States. But the racial issues in this tragic episode also help show the need for improved police accountability, an issue that ought to find common ground among Americans of all races.
     Amidst the voluminous coverage of Brown’s death, two striking facts have emerged:
     * The number of Americans killed by police each year is simply unknown. The commonly cited figure of about 400 deaths per year is based on incomplete information provided to the Justice Department and is almost certainly lower than the actual figure, as elaborated here by FiveThirtyEight visual journalist Reuben Fischer-Baum.
     * The number of such homicides found to be unjustifiable is also unknown, but clearly low. FBI statistics suggest that at least 90 percent of the killings are found justifiable; experts say the number found to be unjustifiable is vanishingly small.
     Criminologists have long complained about this statistical gap. “There is no national database for this type of information, and that is so crazy,” Geoff Alpert, a professor at the University of South Carolina in Columbia, told USA Today. “We've been trying for years, but nobody wanted to fund it and the police departments didn't want it."
     The USA Today story — written by reporters Kevin Johnson, Meghan Hoyer and Brad Heath — notes that the Justice Department statistics are compiled by reports from only 750 out of the 17,000 local law enforcement agencies nationwide. With that limitation, the reporters nevertheless teased out the estimate that about 96 African American civilians were killed by white police officers on average each year during the period 2003-2012 covered by the statistics.
     In short, Michael Brown’s killing on Aug. 9 “was not an isolated event,” the story understated. African Americans already knew that. That is why, as many African American families have recounted in recent days, black parents feel the need to caution their young children about the dangers of sassing-while-black.
     Even without reliable statistics about the outcomes in other cases, most African Americans lack confidence that justice will be done in the investigation of Ferguson police officer Darren Wilson for Brown’s death. A survey by Pew Research Center (Aug. 14-17) found that 18 percent of blacks surveyed had “a great deal” or “some” confidence in the investigation, compared to 76 percent who had “not too much” or “not at all.” A New York Times poll (Aug. 19-20) found somewhat greater confidence: 35 percent compared to 59 percent registering no or little confidence.
     In both surveys, more white Americans had confidence in the investigation, but the results were by no means a ringing endorsement of the officials in Ferguson and St. Louis County. Pew found that one-third of white respondents lacked confidence in the investigation; in the Times poll, 28 percent of whites registered doubts.
     Missteps by the Ferguson and St. Louis County authorities have fed those doubts. Ferguson Police Chief Thomas Jackson waited six days to identify Wilson as the officer “involved” in the shooting. He disclosed the name only after first releasing a videotape that purportedly shows Brown less than an hour before his death shoplifting cigars from a local convenience store.
     Jackson explained to the assembled reporters that he released the supposedly incriminating video of Brown “because you asked for it.” Later, U.S. Justice Department officials said they had urged Jackson not to release the tape for fear inflaming the already heated feelings in Ferguson. At different points, Jackson has given different answers on whether Wilson had known of the suspected robbery when he initially stopped Brown.
     Meanwhile, the American Civil Liberties Union (ACLU) had to file sunshine law requests to obtain police reports on the shooting. The St. Louis County report contained essentially nothing; the incident report from the Ferguson police was heavily redacted.
     To date, the department has also failed to release any medical records to resolve the important dispute over the extent of any injuries that Wilson might have suffered in whatever altercation with Brown occurred. The official autopsy also is undisclosed, but a private autopsy conducted by a nationally prominent medical examiner at Brown’s parents’ request shows six bullet wounds, including two to his head.
     In the two weeks since the shooting, news media have located eyewitnesses some with phone-recorded videos who say Brown was attempting to surrender when Wilson began firing. A damning video shows Wilson standing all but motionless as Brown lay on the ground, unattended to.
     The episode underscores the arguments for pending proposals to routinely equip police officers with body cameras. Departments that have instituted the practice say that they actually help officers defend against unwarranted accusations of abusive behavior. Civil liberties groups hope that the cameras would deter abusive behavior in the first place.
     The parallel local and federal investigations will not be completed quickly, nor is there any guarantee that the results of the investigation or any eventual trial will be universally accepted as just. Truth and justice are both more elusive than often assumed. For now, however, the authorities in Ferguson and St. Louis County are on trial, and white and black Americans alike are entitled to expect that they do their best to ensure that justice is done.

Sunday, August 17, 2014

Breyer's Two Decades as the "Cold-Fish" Justice

      As a young lawyer, Ian Gershengorn minced no words in sizing up Stephen Breyer as a candidate for a vacancy on the Supreme Court. After plowing through a decade’s worth of Breyer’s work as a federal appeals court judge, Gershengorn reported to the Clinton White House that he had found “very little heart and soul” in Breyer’s opinions.  “Quite clearly,” Gershengorn wrote in a memo co-authored with Tom Perrelli, “he is a rather cold fish.”
      Two decades later, Breyer is on the Supreme Court, and Gershengorn regularly appears before him as a deputy U.S. solicitor general. So, Gershengorn naturally took the chance to recant after his earlier evaluation surfaced last month in the release of some of President Clinton’s White House papers.
      “Everyone has regrets from his 20s,” Gershengorn told The Wall Street Journal’s Supreme Court correspondent Jess Bravin. “Suffice it to say I have the highest respect for Justice Breyer and believe he has proven to be a terrific justice.”
       Gershengorn is entitled to his disavowal, but his evaluation proved to be spot-on at the time and looks as much true as false based on Breyer’s 20 terms on the high court. Among The Nine, Breyer is on the cool end of the emotional spectrum, logical to a fault with little if any of the passion that one sees in Ginsburg or Sotomayor on the left, Scalia or Alito on the right, or even Kennedy in the middle.
      Breyer left Clinton cold when he was interviewed in May 1993 for the vacancy that Ginsburg won instead on the strength of her emotion-laden life story. A year later, Breyer became the default choice for a second vacancy only after Clinton struck out with his hope to put a politician like George Mitchell or Bruce Babbitt on the court.
      Belying Gershengorn’s review to some extent, Breyer showed emotion at least twice during his Senate confirmation hearing, according to my account in Supreme Court Yearbook. When asked about affirmative action, Breyer spoke strongly about the need to do more to meet the “basic promise of fairness” in the Fourteenth Amendment after “years of neglect.” He also signaled a strong commitment to women’s rights, referencing his daughters Chloe and Nell seated behind him. “Think of some kind of rule that makes their life worse because they're women,” Breyer said. “Wouldn't you say, but what kind of justification for that could there be?”
      Breyer has proved to be a reliable vote for women’s rights and racial justice throughout his tenure. He veers away from a liberal line on some other issues, however, notably First Amendment free speech issues and Fourth Amendment search disputes. In those two and other areas, Breyer displays his signature doctrinal commitment: pragmatism. “He is unapologetically pragmatic,” Kevin Russell, a former Breyer law clerk and now a frequent Supreme Court advocate, remarked in a 20th anniversary profile in USA Today.
     In Fourth Amendment cases, Breyer is likely to side with law enforcement, as in this year’s 5-4 decision upholding a traffic stop based on an anonymous 911 call (Navarette v. California). In First Amendment cases, Breyer looks for reasons to uphold government regulation, as when he voted in dissent in 2011 to uphold California’s ban on violent video games for minors (Brown v. Entertainment Merchants Ass’n).
     Pragmatism can turn into hash, however, in a Supreme Court decision. When he wrote the main opinion in a case striking down parts of a law aimed at restricting sexual material on cable television, Breyer turned the court’s precedents into a morass of generalities: “The Government may directly regulate speech,” he wrote, “to address extraordinary problems, where its regulations are appropriately tailored to resolve those problems without imposing an unnecessarily great restriction on speech” (Denver Area Educational Television Consortium v. FCC, 1996).
     More recently, Breyer provided nothing better than an unweighted multifactor approach for testing the powers of Congress when he wrote the decision upholding a federal law allowing civil commitment of mentally ill offenders (United States v. Comstock, 2011). In a dissent, Thomas said Breyer’s “novel five-factor test” included no guidance on how to apply the decision to the next case.
      Breyer’s convoluted thinking is often on display on the bench as well. The one-time Harvard law professor is the master of the long-winded question and the hopelessly complex hypothetical. Often, he prefaces questions by saying he needs the answer to decide how he will vote. Other justices — perhaps most notably Alito on the right and Kagan on the left — use their questions more strategically to try to influence their colleagues’ votes.
      Perhaps most significantly, Breyer is Congress’s best friend on the court. He served two tours as a staff assistant on Capitol Hill, helping to author the trucking and airline deregulation bills and the new system of federal sentencing guidelines. Statistics compiled by Yale law professor Paul Gewirtz in 2005 showed Breyer the least likely to the Rehnquist Court justices to vote to find laws passed by Congress unconstitutional. My count suggests he holds the same position on the Roberts Court.
      Breyer has tried, in his book Active Liberty and elsewhere, to lay out an overall philosophy of the court’s need to assist the process of self-government and to look to history and practice more than literal text to guide decisions. But his ideas have had nothing like the impact of those from his hot-tempered colleague Scalia. After two decades on the bench, the influence of the cold-fish justice is sometimes hard to discern.

Sunday, August 10, 2014

In Tennessee, Justices Win by Playing Game

       Three of the Iowa Supreme Court justices who ruled in favor of gay marriage in 2009 faced opposition from anti-gay groups the next year when the state’s voters had to decide whether to keep them on the bench. The justices decided to stand above the fray: no interviews, no fund-raising, no campaigns to speak of. They all lost, by about a 10 percent margin.
      Three of the Tennessee Supreme Court’s five justices faced a politically motivated challenge this year when they were on the ballot in a similar yes-no retention election. They responded by campaigning across the state, raising money, and attacking their opponents for engaging in a political power grab.
      The result: the three justices were retained by a 14 percentage point margin, wider than expected even by the justices’ supporters. And the state’s Republican lieutenant governor, Ron Ramsey, who masterminded the attempted ouster, was forced into pretending that the defeat vindicated his strategy to go after the justices.
      The lesson for supporters of an independent judiciary seems too obvious to need stating, but here goes: You cannot win the game unless you play.
      Tennessee is one of the states to use a system of merit selection and retention elections to try to keep politics out of judicial races. But the system still allows political games to be played by opportunistic politicians or advocacy groups. Judges who find themselves targeted set themselves up to lose if they ignore seriously mounted opposition campaigns. And the bar and others who care about an independent judiciary need to step up to the plate to help.
      Critics of judicial elections are right to worry about the cost of such campaigns. Special interest money on either side poses a real risk of putting a heavy thumb on one side or the other of the scales of justice.
      In the Tennessee race, more than $1 million was spent on television advertising by the opposing campaigns, according to a compilation by Justice at Stake, a nonpartisan organization that advocates a fair and impartial judiciary. “Partisans and special interests opened their checkbooks to send a message of intimidation to courts not just in Tennessee, but across America,” said Bert Brandenburg, the group’s executive director.
      Significantly, the opponents were outspent by the justices’ own campaign and the independent group supporting them. Justice at Stake counted $474,150 in TV spending by Tennessee Forum, the anti-retention group funded by Ramsey’s political action committee, and another $63,390 by a second group funded by Americans for Prosperity, the heavyweight conservative organization financed in large part by the Koch brothers.
      On the opposite side, the justices’ own campaign spent an estimated $579,870 in joint ads, while Chief Justice Gary Wade separately spent another $94,980. In addition, Tennesseans for Fair Courts, a group formed by a lawyer in the Nashville suburb of Hendersonville, spent about $215,840 on ads supporting retention.
      Wade and the other two justices targeted, Cornelia Clark and Sharon Lee, were all appointed by a former Democratic governor, Phil Bredesen, from among candidates forwarded by a bipartisan selection commission. Wade and Clark both had two decades’ experience in the judiciary before their appointments in 2006 and 2005 respectively. Lee had six years’ experience as a judge when Bredesen picked her in 2008 during his second four-year term.
      Tennessee has seen nothing but red politically since Bredesen left office in 2011. Ramsey, lieutenant governor as speaker of the GOP-controlled state Senate, clearly wanted Republicans to control the state Supreme Court as well. Interestingly, the state’s Republican governor, Bill Haslam, took no part in the campaign and in fact called the attacks on the justices “dangerous.” But it would have been Haslam to appoint any new justices if any of the incumbents had been ousted.
      The campaign against the justices consisted of a mish-mash of legal and political sloganeering. Despite the justices’ experience in the judiciary, Ramsey’s group said all three were “partisan liberals” who were pursuing a “liberal agenda.” Among the specifics, the court was blamed for selecting a Democrat as attorney general, Robert Cooper Jr., who declined to join states with Republican attorneys general in the legal challenge to Obamacare.
      The justices were also accused of being soft on crime and insensitive to crime victims. One ruling specifically cited followed established law in reversing a murder conviction because of the prejudicial effect of introducing pictures of the victim unrelated to the crime. The justices were also depicted as beholden to trial lawyers, who were said to be “funding the campaign to keep them in power.”
      Brandenburg fretted that the justices had been forced to become “professional fundraisers, often soliciting money from parties who will appear before them in court.”  The justices were right, however, not to unilaterally disarm themselves in the race. Instead, they worked the political circuits hard. On the eve of the election, Clark and Lee held a rally in Nashville to warn against groups who did not believe in fair and impartial courts.
      With the election over, the court’s supporters expressed gratification, but worried that more such campaigns could be in the offing a warning echoed by national groups following the issue. If so, supporters of an independent judiciary will need to do what it takes to counter ill-founded attacks that jeopardize the goal of fair and impartial justice.

Thursday, August 7, 2014

All Ears on Sutton in Gay Marriage Cases

      Will Jeffrey Sutton become the second Republican-appointed federal appeals court judge to vote in favor of marriage rights for same-sex couples? That is the question left hanging after an extraordinary three hours of oral arguments in gay marriage cases from four states before the Sixth U.S. Circuit Court of Appeals in Cincinnati on Wednesday [Aug. 6].
      Sutton, a hero to legal conservatives before his appointment to the bench by President George W. Bush in 2003, has been recognized as the pivotal vote in the cases ever since the three-judge panel was selected a few weeks back. Sutton’s colleagues were easily pigeonholed: Martha Craig Daughtrey a Clinton appointee with a strong liberal record first on Tennessee appellate courts and then on the federal bench; and Deborah Cook, like Sutton a Bush43 appointee with a conservative record. [Disclosure: Daughtrey is a longtime personal friend from Tennessee days.]
      Court watchers focused on Sutton, however, because of his vote three years ago to uphold the Affordable Care Act even as other Republican-appointed judges were finding it unconstitutional. So Sutton’s questions were listened to very closely by reporters in Cincinnati for the hearing and those, like this reporter, who listened to the audio on line after the fact.
      Judges’ questions during appellate arguments, of course, do not necessarily indicate their eventual vote. But they often do, as anyone who has heard Antonin Scalia or Ruth Bader Ginsburg in action can attest.
     Like a good judge, Sutton asked challenging questions of both sides in the succession of cases Wednesday from four states: Michigan, Ohio, Kentucky, and Tennessee. Yet, in my listening, Sutton seemed tougher on lawyers for Michigan and Ohio, pointedly questioning their arguments on the substantive merits.
     Sutton pounced hard, for example, when Michigan’s solicitor general Aaron Lindstrom described the state’s gay marriage ban as “facially neutral.” “How is it facially neutral?” Sutton asked. “It’s not facially neutral as between people of one sexual orientation and another.”
     For attorneys representing the same-sex couple plaintiffs, Sutton raised process questions: Shouldn’t the issue be left to legislators, not judges? Wouldn’t it be better for gay rights advocates to win through the democratic process instead of in the courts? Carole Stanyar, attorney for the lesbian couple in the Michigan case, had an effective answer: “In my state nothing is happening to help gay people,” she said.
      Most telling for this listener at least, however, was Sutton’s mini-speech early in the Michigan argument debunking Lindstrom’s view of marriage as a static tradition. Marriage “changes with social mores,” Sutton remarked in a non-question that went on for several sentences.
     Sutton rejected Lindstrom’s emphasis on promoting “responsible procreation” through opposite-sex marriage. “Modern conceptions about marriage are more about love, affection, and commitment,” he said. With marriage viewed in that light, the ban “does seem harder to justify even on rational basis grounds,” Sutton said.
     In the Ohio case, Solicitor General Eric Murphy defended the state’s ban on recognizing gay marriages from other states by noting that laws would have to be changed for example, forms listing “husband” and “wife” or “mother” and “father.” Sutton was unimpressed: “All I’m hearing you say is you’d have to change it to say spouse.” Daughtrey added her own tweak: “Or parent.”
      Among other reporters, Chris Johnson of the Washington Blade heard the arguments as I did. “State bans on gay marriage took a beating Wednesday,” Johnson wrote. Other reporters hedged their bets. “[I]t appeared that neither side could take victory for granted,” wrote Erik Eckholm, the New York Times’s national legal correspondent. BuzzFeed’s legal editor Chris Geidner restated the obvious: The decision, Geidner wrote, “likely sits in the hands of Judge Jeffrey Sutton.”
      As expected, Daughtrey signaled through forceful question a certain vote for gay marriage rights. Cook asked relatively few questions suggesting to this listener that she may be resigned to voting in dissent to uphold the state bans.
      After the questions, the judges have to write an opinion—or multiple opinions. When it comes to that, Sutton will have a hard time turning his process questions into a basis for rejecting the rights of the actual plaintiffs before him. The only two appellate judges to buy that argument so far — Paul Kelly on the Tenth Circuit and Paul Niemeyer on the Fourth — are Republican-appointed conservatives from an earlier generation than Sutton; on the Tenth Circuit, Judge Jerome Holmes, like Sutton a Bush43 appointee in his early 50s, voted to strike down the gay marriage bans in Utah and Oklahoma.
     It may well be true, as Ginsburg has said about the Supreme Court’s abortion rights ruling, that gay marriage rights would be accepted more readily if accomplished through legislative change state by state. Or perhaps not: gay marriage opponents are persisting even in the face of an unbroken string of marriage equality rulings over the past year.
      To uphold the state bans, however, Sutton must find at least a rational basis for preventing April De Boer and Jayne Rowse from being legally acknowledged as parents, both of them, to the three children in their family. He must find a basis for denying to John Arthur, now deceased, the right to list his legally married husband James Obergefell on his Ohio death certificate. In my estimation, that opinion “won’t write,” as judges sometimes put it. Prediction: 2-1 ruling for gay marriage rights, sometime this fall.
     
      An earlier version of this column stated that Sutton could be the first Republican-appointed federal appeals court judge to rule in favor of marriage rights for same-sex couples; Jerome A. Holmes of the Tenth Circuit was the first. The column has been corrected to incorporate this information.

Sunday, August 3, 2014

Justices Unmoved So Far by “Botched” Executions

     Anti-death penalty demonstrators lined the sidewalk in front of the Supreme Court Plaza on June 30 as the justices prepared inside the building to hand down the final decisions of the term. The demonstration drew little attention, however, amidst the crowds gathered on both sides of the anticipated decision on the Obamacare birth control mandate.
      The Abolitionist Action Committee has been organizing the annual “fast and vigil” against the death penalty at the Supreme Court Plaza for the past 21 years. The protests mark the anniversaries of the court’s 1972 decisions overturning all then-existing death sentences and the 1976 ruling reinstituting capital punishment under tighter guidelines.
      This year, the protest came against the backdrop of a growing national controversy over the now nearly universal method of execution: lethal injection. Things have gone wrong, badly wrong, in three executions so far this year. In the most recent instance, it took almost two hours and 15 successive injections of the sedative used for Joseph Wood to be put to death in Arizona on July 23.
      The grisly descriptions of “botched” executions from Arizona, Oklahoma, and Ohio are turning the national stomach, but so far at least they are having no substantial impact on Supreme Court justices. On the eve of Wood’s scheduled execution, the justices on July 23 overturned a decision by the U.S. Court of Appeals for the Ninth Circuit blocking the execution — with no recorded dissents.
      The court set the pattern for the year in January by refusing to stay the first of what would be three lethal injection executions that were not quick but prolonged and anything other than humane. Ohio inmate Dennis McGuire was executed on Jan. 16 after losing his Eighth Amendment challenge in lower federal courts to the state’s plan to use an untested combination of drugs in his execution; the Supreme Court declined to review the issue without comment or recorded dissent.
     McGuire “struggled, made guttural noises, gasped for air and choked for about 10 minutes before succumbing” to the sedative used, according to the eyewitness account by Columbus Dispatch reporter Allen Johnson. He was pronounced dead 24 minutes after the execution had begun.
     The court showed only slightly more interest in the issue after McGuire’s execution. When Missouri inmate Michael Taylor brought a similar plea to the court in February, three liberal justices — Ginsburg, Sotomayor, and Kagan voted in dissent to grant a stay. Taylor’s execution on Feb. 25 proceeded without complications within hours of the Supreme Court’s refusal to act. Six weeks later, the court on April 7 declined to hear two other lethal injection cases: one by another Missouri inmate, David Zink, and the other by Louisiana inmate Christopher Sepulvado.
     Oklahoma inmate Clayton Lockett’s execution on April 29 intensified the debate over lethal injections. Lockett had waged a battle similar to Taylor’s for information about the drugs to be used in the lethal injection, but Oklahoma courts turned him down. Lockett was supposedly sedated as the execution began, but witnesses said he convulsed and mumbled for several minutes. He was pronounced dead — not from lethal injection but from a heart attack — 43 minutes after the execution began. State officials blamed the prolonged death on improper injection of the drugs, not the drugs themselves.
     The Supreme Court did grant a stay of execution on May 21 in the unusual case of Missouri inmate Russell Bucklew, who has a rare physical condition that creates a serious risk of physical pain from a lethal injection. The order effectively called on lower courts to hold a full hearing on the issue, now set for September.
     With the McGuire and Lockett examples in mind, one would expect a humane judicial system to take extra care with the next inmate’s plea for more information about lethal injection procedures. And in fact the Ninth Circuit blocked Wood’s execution when a three-judge panel issued a split decision on July 19 enjoining the execution until he received the information sought; the full court declined on July 22 to rehear the case, over the dissent of 11judges.
     The Supreme Court, however, would not hear of it. The justices overturned the Ninth Circuit’s decision on July 23, without a word, allowing the execution to proceed.
     Wood’s execution later that day was ghastly in the extreme. Arizona TV newsman Troy Hayden said Wood looked “like a fish on shore gulping for air.” The state eventually released a document showing that 15 successive doses of the sedative midazolam were administered before Wood was finally pronounced dead one hour and 56 minutes after the execution began. As the American Civil Liberties Union put it, the execution “broke the Eighth Amendment, the First Amendment, and the bounds of basic decency.”
     For death penalty abolitionists, the lethal injection controversy is both an opportunity and a distraction. “We oppose all forms of execution,” says Abraham Bonowitz, an Abolitionist Action Committee spokesman. But Bonowitz says the botched executions show that the procedure can be “a nightmare” for those who watch or carry it out.
     Bonowitz sees a favorable political trend: fewer executions are being carried out and six states have repealed the death penalty in the last seven years. So far, however, the Supreme Court appears largely unmoved either by political trends or the disturbing execution scenes of the past year.

Sunday, July 27, 2014

Following the Health Law Out the Window

      In the olden days of newspapers, typesetters were instructed in no uncertain terms to make no changes in a reporter’s copy even to correct an obvious mistake. “Follow the copy out the window,” typesetters were told.
      Two federal appeals court judges misapplied that rule in a decision last week that struck at the heart of President Obama’s health care reform for two-thirds of the country. Focusing on one 10-word phrase in the 2,000-page Affordable Care Act, the two D.C. Circuit judges barred the intended subsidies for people with marginal incomes in the 36 states that have left it to the federal government to run health insurance exchanges.
       The majority judges in Halbig v. Burwell ignored the act’s overall text and purpose. Instead, they followed the critical phrase straight out the window without exercising the judgment that judges, though not typesetters, are expected to apply. Not coincidentally, the two judges — Thomas Griffith and A. Raymond Randolph —  are Republican appointees who were applying the hyper-textual method of statutory construction propounded by that most Republican of Supreme Court justices, Antonin Scalia.
       The issues in the case — and the separate, same-day ruling the other way from the Fourth Circuit, King v. Burwell— have been rehashed endlessly over the last week. The Affordable Care Act provides that states “shall” establish health care exchanges to offer affordable insurance for people, for example, not covered through employer-provided plans. In a political compromise, however, the mandate became an option: the federal government would establish the exchange in any state that opted out.
       To make the new insurance marketplaces affordable, income-adjusted tax credits were to be provided for people with incomes between 100 percent and 400 percent of the federal poverty line — roughly, $11,000 to $44,000 for singles. In the critical statutory language, the tax credits are to be provided to participants in health care exchanges “established by the State under section 1311 of the act.”
       Nothing is said there about exchanges established by the federal government. In hindsight, this was oversight. But the legislative drafters most likely did not anticipate that Republican governors and lawmakers would dislike Obamacare so much that they would opt out of serving their constituents and leave it to the feds instead.
      The Internal Revenue Service (IRS) exercised its rulemaking authority under the law to make tax credits available to participants in the federal exchanges. The IRS cited two other sections of the law. One defines an exchange as “a governmental agency or nonprofit entity that is established by a State.” The other authorizes the federal government “to establish and operate such Exchange within the state” if the state declines (emphasis added).
       Clearly — though not to the D.C. Circuit majority — the law envisions that the federal exchanges have the same status as the state exchanges. One of the Fourth Circuit judges said the law says exactly that, unambiguously. The other Fourth Circuit judges and the D.C. Circuit dissenter said the law is ambiguous but the IRS is entitled under Supreme Court precedent to deference on how to resolve the ambiguity.
       Significantly, the health insurance tax credits are not gravy but the very meat and potatoes of Obamacare. Without the tax credits, health insurance is unaffordable for many; without those new customers, insurance rates will go up for the rest. And without the tax credits, the individual mandate to obtain insurance and the employer mandate to provide health insurance are not enforced. In short, as the Fourth Circuit stated, “the economic framework supporting the Act would crumble if the credits were unavailable on federal Exchanges.”
       In the D.C. Circuit decision, Griffith acknowledged the ruling would have “significant consequences” and insisted that he and Henderson were reaching their conclusion “frankly, with reluctance.” Regardless, their overly literalistic approach thwarts congressional intent. As Judge Andre Davis wrote in a concurring opinion in the Fourth Circuit case, “No case stands for the proposition that literal readings should take place in a vacuum, acontextually, and untethered from other parts of the operative text; indeed, the case law indicates the opposite.”
       Among outside commenters, Abbe Gluck, a Yale law professor and expert on statutory construction, also effectively skewered the D.C. Circuit decision. The ruling, Gluck wrote in an article for Politico, “does a deep disservice to conservative jurists and lawyers who have spent the last 30 years arguing that text-based interpretation is sophisticated, not literalistic, and serves democracy.”
       Judicial handicappers are betting that the D.C. Circuit decision will not stand. The Obama administration will ask for an en banc rehearing before the full court, which now includes seven Democratic- and four Republican-appointed judges. The Democratic appointees are seen as likely votes for the administration’s position not merely because of their background but because of their different, whole-law approach to statutory construction.
       The issue might reach the Supreme Court anyway, where Scalia would likely command two or three votes to uphold the D.C. Circuit’s decision. But Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy are not wedded to Scalia’s nothing-but-the-text approach. And Roberts, many observers speculate, will again hesitate to risk the court’s institutional capital on Obamacare.
      Time will tell, but for now the case is an object lesson in the consequences of a judicial technique that proponents portray as restraint but operates instead as anti-democratic judicial activism.

Sunday, July 20, 2014

John Seigenthaler's Search for Justice

       John Seigenthaler put me behind bars barely a year after I started working for him as a reporter at was then called the Nashville Tennessean. It was not the kind of assignment I had anticipated when I started out in journalism in my hometown after graduating from Harvard in 1970. But after one day in the Nashville-Davidson County jail and three days in the county workhouse, I turned out a creditable series detailing the somewhat squalid conditions in the two facilities.
       Seigenthaler, who died earlier this month [July 11] at age 86 after a storied career as editor and publisher at what is now simply The Tennessean, loved the undercover reporter technique of getting at hard-to-get stories. A few years earlier, he had sent John Hemphill, later an editor at the New York Times, to do the jail and workhouse story. Other undercover stories he assigned included exposes of conditions in nursing homes (Nat Caldwell, a Pulitzer Prize winner), the state’s major mental hospital (Frank Sutherland, later editor in Nashville himself), and, most daringly, the Ku Klux Klan – infiltrated for nearly a year by Jerry Thompson, a good old boy who could pass as a redneck racist despite a heart of gold.
       Modern day journalism ethicists disapprove of the undercover technique; deception, they say, is incompatible with the truth-telling mission of the true journalism. But Seig — as he was known to his staff and countless friends was a newspaperman of the old school. As a cub reporter in the early 1950s, he earned his stripes by talking a would-be suicide off what was then the Shelby Street Bridge (now renamed the Seigenthaler Bridge in his honor). He won a National Headliner award for his story of tracking down a business executive and his wife who had faked their deaths to collect insurance money.
       Later, Seig uncovered corruption in Teamsters union locals in Tennessee, stories that led to the impeachment of a bribe-taking state court judge and eventually to the jury tampering trial of Teamsters president James Hoffa. The Teamsters stories brought him to the attention of the young Robert F. Kennedy, then counsel to a Senate investigating committee. Seig edited RFK’s book The Enemy Within, cementing a relationship that put him inside the Kennedy circle for life and took him to Washington to work for Kennedy at the Justice Department for a year.
       As Kennedy’s right-hand man, Seigenthaler was dispatched to Montgomery, Ala., in May 1961 to try to protect the group of Freedom Riders traveling from Nashville to Alabama to claim their rights to desegregated interstate transportation. A white mob blocked the buses and beat many of the riders; one in the crowd used a lead pipe to smash Seigenthaler’s skull. He lay unconscious at the scene for 45 minutes, according to the accounts, and spent 10 days in a hospital.
       Seigenthaler was remembered in the Tennessean’s obituary as “a fierce advocate for racial equality” — and so he was, but not from birth. He grew up unaware of the racial segregation that the family’s black maid lived with when she left their home.
      After becoming editor of the Tennessean in 1962, however, Seigenthaler put the paper’s news and editorial columns behind the civil rights revolution. He hired the first black reporter in the newsroom, W. A. (Bill) Reed. As religion editor, Reed’s assignments included the weekly Monday story “A Reporter Goes to Church.” When the influential pastor of one of the city’s biggest churches objected to being covered by a black reporter, Seigenthaler told him that Bill was the paper’s religion reporter. Period.
       Less visibly but just as sincerely, Seig later became a strong supporter of LGBT equality. Without fanfare, he supported and protected gay reporters in the newsrooms of the ’70s and ’80s from any unenlightened attitudes from inside or outside the newspaper. After he retired, he funded the National Lesbian and Gay Journalism Association’s awards for radio and TV coverage of LGBT issues. And in 2004 he was the moderator of what was described as Nashville’s first public forum on LGBT issues, cosponsored by the Human Rights Campaign and American Civil Liberties Union.
       After putting me on the court beat in fall 1971, Seigenthaler gave me valuable pointers and backed me up whenever I needed it in my often critical coverage of the bar and the judiciary. Forty years later, I am still covering the courts, and I still share the disappointment that Seigenthaler often voiced that the bench and bar so often fail to deliver justice, especially to racial and ethnic minorities and the poor.
       Not long after my jail story, Seigenthaler co-authored the book A Search for Justice with three of the newspaper’s reporters: Hemphill, Frank Ritter, and Jim Squires. The book was based on the reporters’ coverage of the trials of assassins James Earl Ray and Sirhan Sirhan and of Clay Shaw, the New Orleans district attorney turned JFK-assassination conspiracy theorist. Seig’s opening chapter is a blistering criticism of the criminal justice system.
       My copy includes this inscription: “For Ken — I gave him a look at ‘justice’ early and he gave me a look at injustice. With regards for his willingness to search, John Seigenthaler.” The search goes on, John. Requiescat in pace.
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