Sunday, March 22, 2015

The Rush to Execute Brain-Damaged Inmate

           Cecil Clayton lost 20 percent of his brain’s frontal lobe as a thirty-something saw mill worker after a piece of wood from a shattered log lodged in his skull and changed his life forever. Four decades later, the state of Missouri executed Clayton last week [March 17] for killing a police officer even as psychologists and judges clashed sharply over whether the brain-damaged death row inmate understood what was about to happen to him.
           By the narrowest of margins, first the Missouri Supreme Court and then the U.S. Supreme Court rejected Clayton’s effort to get a full judicial examination of whether he was “competent to be executed.” Under Supreme Court precedent, the Eighth Amendment’s prohibition against cruel and unusual punishment bars the execution of “one whose mental illness prevents him from comprehending the reasons for the penalty or its implications.” Clayton went to his death without a full contemporaneous opportunity to show that he did not.
          Admittedly, many people find the issue of mental competency for execution hard to grasp or accept. Chief Justice Warren E. Burger and the future chief justice William H. Rehnquist dissented when the Supreme Court established the constitutional rule against executing the insane in its 1986 decision, Ford v. Wainwright.
          In the main opinion, however, Justice Thurgood Marshall found that 18th century common law prohibited executing someone who was insane, the Eighth Amendment constitutionalized the rule, and no U.S. state allowed the practice. And in a controlling concurrence, Justice Lewis F. Powell Jr. said due process required at the least an opportunity for a condemned inmate to present psychiatric evidence to counter any finding of sanity by a state-selected clinician.
          Two decades later, the court followed up by ruling in Panetti v. Quarterman (2007) that Texas violated that requirement when it found an inmate competent to be executed without holding a hearing or allowing the inmate an opportunity to present evidence. Justice Anthony M. Kennedy wrote the majority opinion, joined by the court’s four liberals; four conservative justices dissented.
          The history of Clayton’s case is procedurally complex. Clayton’s relatives testified at his trial that his personality changed dramatically after the 1972 saw mill accident. Two brothers recounted for the jury that Clayton’s marriage broke up, he began drinking to excess, and he became anti-social, impatient, and subject to violent outbursts.
          Clayton was tried for shooting a police officer who tracked him to his girlfriend’s home after Clayton had gotten into an argument with her at a convenience store. At trial, his lawyer argued that Clayton was incapable because of his brain injury to form the intent needed to sustain a first-degree murder count. The jury rejected the argument and found him guilty. At the sentencing hearing, Clayton contended his mental illness was a mitigating factor, but the jury again rejected the argument and sentenced him to death.    
          In a post-conviction challenge, Clayton first raised the separate argument of his mental competency to assist in his defense and asked for a new trial because his court-appointed counsel had failed to raise the issue. But the Missouri Supreme Court ruled that a lawyer had no duty to investigate the issue if a client appeared able to understand the proceedings.
          Clayton renewed his claim in a federal habeas corpus petition. The federal district court ordered a new psychiatric evaluation and heard conflicting evidence from the state’s psychiatrist and Clayton’s, but it ruled in 2006 that Clayton had been competent at trial and was competent based on the present evaluations.
          Clayton tried again in January after the state scheduled his execution for March 17. He supported his habeas corpus petition before the Missouri Supreme Court, filed on March 10, with a new affidavit from his psychiatrist stating that his mental condition had deteriorated in prison because of the lack of any treatment and that he did not understand the impending execution.
          Clayton asked for a full hearing, but the four justices in the majority would not hear of it. Evidently impatient with the delay and the last-minute filing, the court evaluated Clayton’s mental condition solely on the basis of the written record. “There is no evidence that he is not capable of understanding matters in extenuation, arguments for executive clemency or reasons why the sentence should not be carried out.’” Justice Paul Wilson wrote in the March 14 decision, quoting criteria from the Missouri statute.
          Writing for three dissenters, Justice Laura Denvir Stith was put off instead by what she called Missouri’s “sudden rush of executions.” Clayton’s was to be the state’s 14th since November 2013. And she found the majority’s impatience unwarranted as well. The issue, she wrote, is “is whether he is sufficiently competent today to be executed.” Without a full hearing, she said the majority had “put the cart before the horse.”
          The U.S. Supreme Court refused Clayton’s final effort to stay the execution pending a full hearing in an order issued late on the evening of March 17. Kennedy joined with the four conservatives in an action that undermined his own earlier opinion requiring a hearing on competency before an execution. The four liberal justices dissented but without opinion.
          “For centuries, no jurisdiction has countenanced the execution of the insane,” Justice Marshall wrote back in 1986. In Clayton’s case, however, two courts of last resort did countenance a clear risk that a brain-damaged inmate was executed with only a diminished understanding of what was happening.

Sunday, March 15, 2015

No Free-Speech Protection for Frat Boys' Chant

          The president of Oklahoma University came down hard and quick on one of the school’s fraternities after a viral video showed chapter members in an openly racist chant vowing to bar African Americans from their brotherhood. Millions of Americans who had never heard of Sigma Alpha Epsilon were introduced to the fraternity by hearing OU chapter members on a chartered bus chanting, “There’ll never be a n***** in SAE.”
          OU President David Boren, a former Oklahoma governor and U.S. senator, responded all but immediately to the YouTube video by shuttering SAE’s frat house and expelling two of the students identified as helping lead the chant [March 9]. Boren drew widespread acclaim for his actions, but First Amendment experts have criticized the moves as free-speech violations.
          The experts who questioned the actions ranged across the ideological spectrum from the libertarian-minded Eugene Volokh to two nationally prominent liberals, Erwin Chemerinsky and Geoffrey Stone. A minority view was heard from Daria Roithmayr, a law professor at the University of Southern California who studies the intersection of law and racism. But the most full throated critique came from a Boston College law professor, Kent Greenfield, who argued in a column for The Atlantic that the Supreme Court’s interpretation of the First Amendment may protect the frat boys’ racist chant “but it shouldn’t.”
          It is risky business indeed to take on Volokh, Chemerinsky, and Stone, all at the same time, but a Supreme Court precedent ignored so far in the debate upholds the university’s decision. Boren plausibly justified his decisions on the ground that the chant disrupted the university’s educational mission. But the stronger argument is that the university has the power to prevent recognized student organizations from engaging in illegal racial discrimination and that the frat boys’ chant amounted to proclaiming and reinforcing such a policy.
          The strongest Supreme Court precedent for the school is a commercial speech decision, Pittsburgh Press Co. v. Human Relations Commission (1973), that rejected a newspaper’s First Amendment right to advertise illegal conduct specifically, sex discrimination in employment. Back in the now-forgotten old days, the newspaper separated job listings in its classified ads by sex: “Male Help Wanted” and “Female Help Wanted.” The city’s human relations commission cited a local ordinance aimed not only at employers but also employment agencies and advertising media in ordering the newspaper to cease and desist the practice. The newspaper responded with a First Amendment defense.
          The court’s decision was divided 5-4, but the majority was emphatic in rejecting the newspaper’s defense. “Discrimination in employment is not only commercial activity, it is illegal commercial activity under the Ordinance,” Justice Lewis F. Powell Jr. wrote (emphasis in original). “We have no doubt that a newspaper constitutionally could be forbidden to publish a want ad proposing a sale of narcotics or soliciting prostitutes.”
          “The illegality in this case may be less overt, but we see no difference in principle here,” Powell continued. Any claimed First Amendment interest, he said, was “altogether absent when the commercial activity itself is illegal, and the restriction on advertising is incidental to a valid limitation on economic activity.”
          Admittedly, Pittsburgh Press predates by a couple of years the seminal Supreme Court precedents that established the commercial speech doctrine. But despite four decades of evolution, the holding still stands: the government can prohibit speech that specifically proposes illegal conduct.
          The OU boys on the bus were doing exactly that: advertising a policy of illegal discrimination and reinforcing that policy for all those who heard it. The university prohibits fraternities and sororities from practicing racial discrimination. Federal civil rights law also probably applies to the fraternity, which is as much a public accommodation as private civic clubs that the court has held subject to civil rights laws in decisions in the 1980s.
          The First Amendment experts who see problems with the university’s actions all viewed the dispute in terms of precedents limiting the government’s power to control hate speech or supposed threats. “Racist speech is constitutionally protected,” Volokh, a professor at UCLA, wrote on his eponymous blog The Volokh Conspiracy, “and universities may not discipline students based on their speech.” Chemerinsky, founding dean of the University of California-Irvine Law School, and Stone, a former dean at the University of Chicago, voiced similar views in comments to The New York Times and elsewhere.
          The frat boys’ chant included a chilling reference to possible violence against a would-be African American brother: “You can hang him from a tree, but he can never sign with me.” The experts found that language too general to lose First Amendment protection under the Supreme Court’s key precedent, Brandenburg v. Ohio (1969), which blocked prosecution of Ku Klux Klan members for burning a cross as part of a rally in an open field.
          The frat boys’ threat could easily be construed as more concrete than the Klan’s public rally. In any event, Boren is right in contending that the chant was disruptive for the 30,000-student campus. The First Amendment interest in protecting the chant is, as Powell wrote in Pittsburgh Press, “altogether absent.”
      The two expelled students have apologized, but the SAE chapter has now hired a lawyer for possible litigation on the issue. OU can stand its ground. Public universities must respect freedom of speech, of course, but First Amendment doctrine does not disable university administrators from acting against racial discrimination and racist speech that interferes with the rights of others.

Sunday, March 8, 2015

In Ferguson, Reforms Needed to Avert Another Tragedy

          Darren Wilson is in the clear, but the Ferguson, Mo., police department is guilty of a “policy and practice” of illegal and unconstitutional policing, according to detailed reports released last week [March 4] by the U.S. Department of Justice.
          Wilson’s fate matters a lot to the former Ferguson officer and to the family of Michael Brown, the African American teenager shot dead by Wilson on the afternoon of Aug. 9, 2014. But the report by the Justice Department’s civil rights division matters all the more for the people of the St. Louis suburb subjected for years to unjustified stops and arrests, excessive use of force, and racist law enforcement.
          The impact of those policies has been felt in particular by African Americans, who comprise about two-thirds of the town’s population but 85 percent of those subjected to vehicle stops and 93 percent of those arrested. The police department and the municipal court both “reflect and exacerbate” racial bias and stereotyping, according to the 106-page report. The disparities result “at least in part” from “intentional discrimination,” the report concludes.
          The damning report on the department gains credibility from the investigators’ meticulous and balanced 86-page dissection of the evidence in the Brown shooting and the conclusion to bring no federal civil rights charge in the case. The feds’ findings, made public because of “the high interest in the case,” support Wilson’s account of Brown as the initial aggressor in the episode and his claim of self-defense as he fired the fatal rounds with the burly teenager coming at him only a few feet away.
          Were Brown’s hands raised in a surrender as Wilson fired — “Hands up, don’t shoot”? The accounts to that effect by some eyewitnesses sympathetic to Brown were found to be “inconsistent with the physical evidence” or internally inconsistent. There was “no evidence” to contradict Wilson’s fear that he feared for his safety, the DOJ investigators concluded, and his use of force was “objectively reasonable.”
          Any federal civil rights prosecution of Wilson would have been a daunting effort anyway. The government would have had to prove that Wilson willfully deprived Brown of his civil rights for a conviction under 42 U.S.C. §1983. That was never in the cards, so there was no surprise in the department’s conclusion that the case “lacks prosecutive merit and should be closed.” But the detail of the report clears Wilson more convincingly and more credibly than the earlier decision by the St. Louis County grand jury to bring no state charges.
          The portrait of Ferguson suggests, however, that Brown’s death and the ensuing discord were a tragedy waiting to happen. Brown grew up in a community with good reason to mistrust the police. And Wilson, 28 years old and in only his sixth year as a police officer, was part of a department constantly exhorted to generate revenue-producing arrests and citations and indifferent to civilian allegations of misconduct.
          Ferguson officers “expect and demand compliance even when they lack legal authority,” the report states. “They are inclined to interpret the exercise of free-speech rights as unlawful disobedience, innocent movements as physical threats, indications of mental or physical illness as belligerence.”
          Witness the incidents cited in the report: a 32-year-old African American man arrested as he sat in his car cooling off after a basketball game; he was charged with eight offenses, including not wearing a seat belt and making a false statement by giving his name as “Mike” instead of “Michael.” Another: a woman tased at the stationhouse for supposedly refusing to remove a bracelet when instructed, with several officers standing close enough to subdue her even if she had been resisting.
          “Failure to comply” is a frequent offense in Ferguson, and 94 percent of those charged with the offense were African American. Or another: “manner of walking in the roadway;” 95 percent of the offenders African American.
          The Ferguson police department apparently recognizes “ped check” as a lawful reason to stop an otherwise law-abiding pedestrian. “Officers invoke the term ‘ped check’ as though it has some unique constitutional legitimacy,” the Justice Department states. “It does not.”
          The pervasive racism within the predominantly white police force is illustrated by the racist emails cited in the report — mocking, among others, President Obama — and the non-response by the department. Until the DOJ report, no one had been disciplined for the messages or even asked to stop. Instead, the emails were “usually” forwarded to others.
          The municipal court is a mockery of justice: an arm of the police department and a major revenue source for the town’s government: fines in the hundreds of dollars for such offenses as “High Grass and Weeds.” Citations must be paid in person, not by mail; the practice generates “failure to appear” citations, which add to the amounts owed. The part-time judge who hands out these fines is cited in the report for having asked the municipal prosecutor to fix a red-light ticket in another town; and The Guardian reported that he owes $170,000 in back taxes.
          The report lays the basis for reforms with a laundry list of recommendations that should have been standard practice without input from Washington. Asked about the report on Friday, Attorney General Eric Holder said he was prepared to “dismantle” the department if necessary. Thoroughgoing reform cannot come soon enough, perhaps in time to avert another tragedy.

Wednesday, March 4, 2015

Justices Tilting Against Latest Obamacare Challenge

          The Obama administration has reason to feel encouraged after the latest challenge to the president’s health care reform encountered stiff resistance from the Supreme Court’s liberal bloc and failed to gain visible support from all five conservative justices.
          All four liberal justices — Ginsburg, Breyer, Sotomayor, and Kagan — aggressively questioned the challengers’ attorney, veteran conservative Washington lawyer Michael Carvin, during his time at the lectern. Conservatives Scalia and Alito had hard questions for Solicitor General Donald Verrilli as he argued the administration’s side, but got no significant support from either Roberts or Kennedy.
          Significantly, however, Kennedy signaled more than once a possible leaning toward the administration’s position and Roberts, as chief justice, kept his options open by asking only one substantive question during the expanded 80-minute session. By end of argument, a 6-3 ruling for the administration seemed to be a possibility, while a 5-4 ruling for the challengers — even counting the silent Thomas as a presumed vote — seemed harder to envision.
          The transcript of the arguments in King v. Burwell shows they were neither pretty nor entertaining. Breyer described the statutory provisions at issue as similar to the tax code – a comparison not ordinarily seen as a compliment. Later, Scalia pointedly remarked that the 1,000-page Affordable Care Act was “not an elegantly drafted statute.”
          The dispute was so deep into the statutory weeds that it is perhaps no surprise that the potential conflict between infamous section 1311 and notorious section 1321 was not identified until more than a year after the ACA was signed in March 2010. In 1311, tax credits are to be provided for low- and middle-income persons who buy insurance through a health care exchange “established by a state.” But if a state chooses not to create an affordable health care insurance marketplace, then section 1321 says the federal government — specifically, the secretary of Health and Human Services — will establish “such exchange.”
          The four Virginians chosen as plaintiffs in this, the third major challenge to Obamacare, all say that they do not want to buy health insurance and that without the law’s tax credit they won’t have to because of the act’s “unaffordability exemption.” Virginia is one of 34 states that has chosen not to set up a health care exchange and instead let the feds do it.
          Representing the plaintiffs, Carvin told the justices that the law provides, “in plain English,” that the tax credits are provided only if a state has created an exchange. “This is a straightforward case of statutory construction where the plain language of the statute dictates the result,” he said in his opening sentence.
          Liberal justices were unconvinced. Breyer said the secretary’s obligation to create “such exchange” referred to one that would satisfy section 1311. “So what’s the problem?” he asked. Kagan followed by rejecting Carvin’s reliance on the “plain language” of the law. “The answer really does depend on the context,” she said. “It’s the whole structure and content of the provision.”
          In her turn, Sotomayor noted that Carvin’s argument in effect penalized states for not creating health care exchanges by denying subsidies to their residents. “Tell me how that is not coercive in an unconstitutional way,” she said. Tellingly, Kennedy appeared to echo the point. If your argument prevails, he told Carvin,  there is “a serious constitutional problem.”
          Roberts allowed Carvin an extra 10 minutes because of the frequent questions and offered the same to Verrilli as he took the lectern. To Carvin’s argument, Verrilli said bluntly that it would create “an incoherent statute that doesn’t work.” The challengers’ argument, he said, would create a “death spiral” in insurance markets as rates rose for a dwindling number of customers and would also “revoke[ ] the promise of affordable care for millions of Americans.”
          “That can’t be the statute that Congress intended,” Verrilli said.
          Scalia rejected the logic. “It may not be the statute they intended,” the co-author of a book on statutory interpretation said. “The question is whether it’s the statute they wrote.” He amplified later: “If it can only reasonably mean one thing, it will continue to mean that one thing, even if it has untoward consequences for the rest of the statute.”
          Later, Alito pressed Verrilli to answer the liberal justices’ suggestion that Carvin’s argument would make the statute unconstitutionally coercive. Verrilli replied noncommittally that it would be “a novel question” but that the government would attempt to defend the law. Alito’s question backfired, however, when Kennedy joined in to cite the doctrine of “constitutional avoidance” in effect as an argument for rejecting the challenge.
          In contrast to Carvin’s boisterous and demonstrative demeanor, Verrrilli appeared calm and straightforward throughout his allotted time. Toward the end, he elicited the only substantive question from the chief justice. Verrilli said that if the court saw the statute as ambiguous, it should still uphold the Internal Revenue Service’s regulation interpreting the law under so-called Chevron deference — an established doctrine named after a 1984 precedent.
          If the court ruled that way, Roberts asked, could the next administration change it? Verrilli replied in the affirmative. In context, the question evoked Roberts’s closing line in his 2012 opinion upholding most of the Affordable Care Act while deferring to the political process. “[T]he Court does not express any opinion on the wisdom of the Affordable Care Act,” Roberts wrote in National Federation of Independent Business v. Sebelius (2012). “Under the Constitution that judgment is left to the people.”

Sunday, March 1, 2015

Standing the Test in Health Care Challenge

       A group of Arizona taxpayers filed a lawsuit against the state’s law giving tax credits to families for tuition at private schools. After finding that the bulk of the credits went to families with students at religious schools, the Ninth U.S. Circuit Court of Appeals ruled that the program violated the First Amendment’s prohibition against government establishment of religion.
       At the Supreme Court, however, the taxpayers discovered that they had no legal standing to bring the case. By a 5-4 vote, the court held in Arizona Christian School Tuition Organization v. Winn (2011) that the taxpayers had suffered no legal injury because their tax dollars were not going to the religious schools. In a sharp dissent, however, Justice Elena Kagan said the majority’s use of the standing issue to squelch the suit contradicted at least five earlier decisions in which the court had entertained similar taxpayer challenges.
       Kagan’s dissent underlines the frequently heard critique that standing is a flexible legal doctrine that justices invoke when they do not want to hear a case and ignore when they do.  That issue may be at play this week [March 4] when the court hears its third politically charged challenge to the Affordable Care Act (ACA), President Obama’s signature health reform law.
       The case before the court stems from a suit filed by four Virginia taxpayers who say they do not want to have to buy health insurance as required under the ACA’s individual mandate. The plaintiffs are challenging the Obama administration’s regulation adopted by the Internal Revenue Service (IRS) in 2011 that extends subsidies to low- and middle-income individuals who need help to afford health insurance from the newly created federal health exchanges.
       The plaintiffs in King v. Burwell argue that the ACA provides those subsidies only in those states — not including Virginia — that have established their own health exchanges instead of relying on a federal exchange. The administration argues that the plaintiffs’ reading of the act is wrong, illogical, and unsupported by any legislative history in Congress.
       Before getting to the merits, however, the plaintiffs have to have legal standing to bring the case. Without those subsidies, they say they would be exempt from the individual mandate because of the so-called unaffordability exemption. The administration questioned their standing in two lower courts, but both lower courts found the plaintiffs had standing before going on to rule for the administration. At the Supreme Court, the administration said in October that it would not question the plaintiffs’ standing.
        New information uncovered by reporters for Mother Jones magazine and The Wall Street Journal raises doubts that the plaintiffs have any concrete stake in knocking out the subsidies. It turns out that the lead plaintiff, David King, is a Vietnam veteran who, according to the Journal, has a VA card and has received health care through the VA. A second plaintiff, Douglas Hurst, is described by his wife on social media as a veteran as well, according to the team of Journal reporters: Louise Radnofsky, Jess Bravin, and Brent Kendall.
       A third plaintiff, Rose Luck, appears to qualify for the unaffordability exemption, according to information pulled together by the Mother Jones writer Stephanie Mencimer. And Mencimer says that the fourth plaintiff, Brenda Levy, will qualify for Medicare when she turns 65 in June.
       Plaintiffs in public policy lawsuits are mere props, of course, but it is telling that the libertarian Competitive Enterprise Institute found no better plaintiffs for the suit that it is paying for and masterminding. King and Luck both voiced virulent anti-Obama sentiments to Mencimer; Hurst’s wife vented in like vein on social media. As for Levy, her views appear to be ambivalent. “I don't like the idea of throwing people off their health insurance,” she told Mencimer.
       The Journal probed whether lawyers on the case had vetted their clients before submitting the declarations that the lower courts relied on to find standing. They all claimed due diligence. Michael Carvin, the lawyer who will argue the case at the Supreme Court, disclaimed any responsibility. “My particular role was not a lot of direct involvement with the plaintiffs,” he told Mencimer.
       As for due diligence, government lawyers get poor marks for not uncovering any of these issues. Having waived the issue, Solicitor General Donald Verrilli is seemingly estopped from bringing it up on Wednesday. But any of the justices could ask. A court can raise a standing issue on its own, just as the Supreme Court itself did in the Arizona case.
       The Roberts Court conservatives have been opportunistic in using the standing doctrine. The conservative five took a strict view of standing when they blocked a challenge to National Security Agency (NSA) spying on human rights lawyers and journalists in 2013. But they raised not a peep during the same term about the questionable standing of Abigail Fisher in challenging affirmative action at the University of Texas.
       Tossing the King plaintiffs would leave the issue unsettled and force the Obamacare opponents to find others. In the Arizona case, Justice Anthony M. Kennedy said, in effect, no problem. Federal courts could adjudicate the issues, he said, in a case by plaintiffs who had suffered “real injury.” But in the modern litigation environment, Kennedy said, courts “must be more careful to insist on the formal rules of standing, not less so.”

Sunday, February 22, 2015

Ginsburg's Celebrity Goes to Her Head

      Three months after reaching age 82, Louis Brandeis decided in February 1939 that he could no longer handle the duties of a Supreme Court justice and retired after 23 years on the bench. Brandeis did not retire completely from public life, however. He devoted much of the remaining two years of his life to a cause he had long worked for: Zionism.
          In years past, Justice Ruth Bader Ginsburg cited Brandeis as her judicial hero and his age upon retirement as the target for her Supreme Court tenure. As the target age approached, however, Ginsburg changed her tune.
          For the past four years now, Ginsburg has forcefully batted away any suggestions for a strategically timed retirement with a liberal Democrat in the White House. Instead, she has vowed to stay as long as she is up to the job. She has detailed her personal health and physical fitness regimen as proof that she is.
          In the process, Ginsburg, who will reach Brandeis's retirement age on June 15, has also become a celebrity. She is not merely the only Supreme Court justice to date to have a tumblr (“Notorious R.B.G.”) but the first justice ever to have a public following of this sort. And, in the process, Ginsburg has stepped right up to the ethical line, or perhaps crossed it, in regard to extrajudicial comments that could taint her supposed impartiality on pending cases.
          Ginsburg’s critics on the political and legal right have seized on her comment to Bloomberg’s Greg Stohr that the American public could accept a Supreme Court decision recognizing a constitutional right for gay and lesbian couples to marry. “The change in people’s attitude on that issue has been enormous,” Ginsburg said. With several additional sentences of elaboration, Ginsburg concluded that it “would not take a large adjustment” for Americans to accept a court ruling for gay marriage rights in the cases to be argued in late April.
          Credit Stohr with asking the gay marriage question in a way that did not ask her to say how she would rule. But Ginsburg’s remark more than tips her hand. Before she was a judge and many times since, Ginsburg has criticized the court for issuing its landmark abortion rights decision Roe v. Wade before the American public was ready for it. Given that history, Ginsburg’s remark violates the rule she set for herself at her confirmation hearing in 1993 that she would give “no hint” in advance of how she would rule on cases before the court.
          Advocates and commentators on the right,— including the anti-gay National Organization for Marriage (NOM) and  the National Review’s columnist Ed Whelan,— have cited Ginsburg’s remark as grounds for her to step out of the case. A strong critique by Josh Blackman, the South Texas law professor and Federalist Society favorite, stops short of calling for recusal. But given the Supreme Court’s practice on recusal — leaving it up to the individual justice —that is not going to happen anyway. Not even with the added criticism of Ginsburg’s role in officiating at a same-sex wedding.
          In his column, Whelan also points to what he calls Ginsburg’s “amazingly indiscreet” comment in the Bloomberg interview describing President Obama’s health care reform as likely to be Obama’s “legacy.” As Whelan notes, the court is set to hear arguments in early March in its third politically charged legal challenge to Obamacare. Whelan also raises his eyebrows at Ginsburg’s remark in the interview that she has a “rapport” with Obama that goes back to her asking to sit next to him when the justices hosted newly elected senators for dinner after the 2004 elections.
          After Bloomberg, Ginsburg sat for another interview with MSNBC’s Irin Carmon. Rachel Maddow introduced the interview by saying that Ginsburg “doesn’t do many interviews.” That is Brian Williams-style puffery. The list of Ginsburg’s interviews, dating from late last summer, includes Reuters, the Associated Press, Yahoo’s Katie Couric, Elle, National Journal, and perhaps others that I have forgotten. She has also sat for staged appearances at, among other places, the 92nd Street Y in New York and Georgetown Law School in Washington.
          Other justices are also out in the public eye more these days than in the past. Note Antonin Scalia’s appearances promoting his co-authored book Reading Law and Sonia Sotomayor’s book tour for her memoir My Beloved World. Chief Justice John G. Roberts Jr. sat for a CSPAN interview in 2011; Elena Kagan did CSPAN right after her confirmation in 2010. Non-news media interviews include Clarence Thomas’s appearance with Yale professor Akhil Amar at the National Archives in September 2012 and Samuel A. Alito Jr.’s interview by a former law clerk at the Federalist Society’s banquet dinner in November 2014.
          All of this is to the good for those who favor increased transparency at One First Street. But with Scalia as the one exception, none of the other justices besides Ginsburg has generated much news apart from Sotomayor’s and Kagan’s post-confirmation doubts about televising the court.
          The inescapable conclusion is that Ginsburg’s celebrity has gone to her head. She was expansive in her MSNBC interview about abortion rights and women’s rights in general; she closed with the hope that she would be remembered as someone who helped “to make things a little better through the use of whatever ability she has.” In context, that sounds like a judge with an agenda who has forgotten the important symbolism of Lady Justice with blindfold and balanced scales.

Monday, February 16, 2015

In Alabama, Obstruction of Justice on Marriage

          The deputy attorney general of the United States brought an order from a federal district court judge with him to Tuscaloosa on June 11, 1963, to desegregate the University of Alabama. Gov. George Wallace stood in the schoolhouse door that day, but gave way after Nicholas Katzenbach brandished the judicial order, backed up by U.S. marshals and later the federalized Alabama National Guard.
          The judge who issued that order was no integrationist. Years earlier, Judge Seybourne Lynne had dissented in 1956 from the ruling that forced the desegregation of Montgomery’s all-white bus line. In the same year, he also refused to empanel a grand jury to consider federal civil rights charges in the deaths of three black ministers, according to Lynne’s 2009 obituary in The New York Times.
          Despite the poor record on racial justice, Lynne knew the law and the U.S. Constitution. “The governor of a sovereign state has no authority to obstruct or prevent the execution of lawful orders of a court of the United States,” Lynne wrote in an opinion that he had drafted in pencil on legal paper.
          Five decades later, however, Alabama’s chief justice is doing all that he can to obstruct the lawful order of a federal court to allow gay and lesbian couples to marry in the state. U.S. District Court Judge Callie Granade ruled in January that the state’s ban on same-sex marriages violates the U.S. Constitution’s Equal Protection Clause. But in a six-page order the day before Granade’s ruling was to take effect, Moore directed probate judges in the state’s 67 counties to ignore it.
          For the ostensible purpose of ensuring “the orderly administration of justice,” Moore created chaos in his Feb. 8 order by directing probate judges to follow the opposite-sex definition of marriage that voters had put into the state constitution in 2006. Over the next few days, judges in some counties issued marriage licenses to same-sex couples, but most did not.
          Moore went on national television to explain his action. “What one lone judge in Alabama federal court says is not law,” Moore said in a contentious, 25-minute interview with CNN’s Chris Cuomo on Thursday [Feb. 12] “If it were the law, then the U.S. Supreme Court wouldn’t be meeting to determine this thing in April through June.”
          The Supreme Court, of course, is set to hear arguments in late April in cases challenging bans on same-sex marriages in four states: Kentucky, Michigan, Ohio, and Tennessee. But Alabama Attorney General Luther Strange struck out at the Supreme Court when he asked the justices to block Granade’s ruling from taking effect.
          Two justices, Antonin Scalia and Clarence Thomas, dissented from that decision issued on Monday morning [Feb. 9]. But Thomas’s written dissent makes clear that the other justices recognized they were allowing same-sex marriage to become law in Alabama. Thomas said he “would have preserved the status quo” until after the court’s ruling, but he and Scalia were outvoted.
          The Supreme Court’s handling of the marriage issue has been subject to criticism ever since the justices refused on the First Monday in October to hear states’ appeals in several cases seeking to reinstate same-sex marriage bans. The court’s “acquiescence,” to use Thomas’s term, has allowed marriage equality for gay and lesbian couples to become law now in 37 states without a definitive ruling. It is no wonder that Thomas surmised that the majority’s inaction may be “a signal of the Court’s intended resolution” of the issue.
          Still, the Supreme Court is the nation’s highest court, and a federal court has the Constitution’s Supremacy Clause behind it when it rules a state law unconstitutional. However many times Moore repeats his mantra — “Her opinion is not the law” — Judge Granade’s ruling is in fact the law unless overruled by a higher federal court. No state court has that authority, much less an individual state justice.
          Moore had the thinnest fig leaf of civil procedure on his side when he said that Granade’s order enjoined the state’s attorney general from enforcing the same-sex marriage ban; the state’s probate judges were not named. Granade destroyed that point later on Thursday [Feb. 12] when she issued a new injunction specifically ordering the probate judge in Mobile not to prevent same-sex couples from marrying.
          By the end of the next day, most of the state’s probate judges — 51 of 67, by one count —  had decided to comply. But eight judges responded with a last-ditch petition to the Alabama Supreme Court seeking an order that they continue to deny marriage licenses to same-sex couples. The state justices agreed to consider the petition, but two dissenting justices called the move unprecedented and procedurally improper.
          When he ordered the University of Alabama desegregated, Judge Lynne acknowledged that Alabamians disagreed about the issue. “I know many of both races are troubled and like Jonah of old, are ‘angry even unto death,’” he wrote.  “My prayer is that all of our people, in keeping with our finest tradition, will join in the resolution that law and order will be maintained.”
          Alabamians are divided on same-sex marriage, with two-thirds opposed, according to polls. Many undoubtedly agree with Moore that a divine order is being upended. But many others will wonder why their state’s highest judge would choose to obstruct instead of obey the law.