Sunday, July 5, 2015

Breyer, Ginsburg Surprise on Death Penalty

      The Supreme Court’s decision in the Oklahoma lethal injection case on the final day of the term [June 29] went pretty much as expected. Justice Samuel A. Alito Jr. spoke for the conservative majority in rejecting the challenge. In oral argument, Alito had declared that the challenges about the specific drugs used in lethal injections amounted to “guerrilla warfare” by death penalty opponents in the face of legislative and judicial approval of capital punishment.
      Justice Sonia Sotomayor spoke for the four liberal justices in dissent. Sotomayor had bluntly told the state’s lawyer that she did not believe what he was saying. And she made clear her view that inmates would suffer excruciating pain during the executions because the drug Oklahoma planned to use to render them unconscious would not actually work.
      However predictable, the reading of the two opinions in Glossip v. Gross was high courtroom drama. Alito denounced in advance what he called Sotomayor’s “outlandish rhetoric.” Sotomayor followed by likening Oklahoma’s flawed lethal injections to being burned alive at the stake.
      But there was more to come: a genuine surprise from the court’s senior liberal justices, Stephen G. Breyer and Ruth Bader Ginsburg. In a rare reading from the bench of a second dissenting opinion, Breyer announced that he and Ginsburg were ready to find the death penalty unconstitutional altogether.
       Breyer’s 41-page dissent, longest of the five opinions in the case, lays out point by point a solid argument against capital punishment as practiced for the last four decades. The Supreme Court ruled the death penalty unconstitutional in 1972 as then administered. Four years later, the court allowed capital punishment to resume but under guidelines intended to cure the flaws from the past. “Forty years of experience with those procedures and protections,” Breyer declared from the bench, “shows that they do not work.”
      Breyer speaks and writes from experience. During their long tenures, Supreme Court justices see more death penalty cases up close than any other individual public official: prosecutors, governors, or state or federal court judges. Year after year, the last-minute applications for stays of execution keep coming. And year after year the cases evidence a system that fails to deliver what the Supreme Court promises above its front entrance: equal justice for all.
      For the first of four points, Breyer cited the proven unreliability of the death penalty system. “We now have persuasive evidence,” Breyer declared, “that innocent individuals have been executed and that more than 100 individuals convicted of capital crimes and sentenced to death have later been fully exonerated.” In addition, “the rate of procedural error in capital trials is alarming, well over 60 percent,” he said.
      Justice Antonin Scalia, perhaps the most outspoken defender of capital punishment on the court, has insisted in the past that there is no evidence of an innocent person having been put to death in the United States. He chose not to debate the point in his nine-page reply to Breyer. Instead, he argued with hypertechnical textualism that a wrongful conviction does not implicate the Eighth Amendment’s prohibition against cruel and unusual punishments.
      After unreliability, Breyer turned to his second point: arbitrariness. Despite best efforts, the death penalty system has failed to ensure that the ultimate punishment is reserved for only the most egregious of crimes. Numerous studies have shown that race, gender, and geography affect imposition of the death penalty more than “comparative egregiousness.” Breyer noted other, even more troubling factors: the limited resources for defense counsel and political pressure on judges, especially those up for re-election.
      For a third point, Breyer pointed to the long delays between sentences and actual executions: an average of 18 years for executions carried out in 2014. The delays are cruel punishment of themselves, Breyer said, but they also undermine the legitimate justifications for the death penalty: deterrence or retribution. Long after the murder, an execution serves either purpose tenuously at most.
      Scalia responded by blaming the delays on death penalty opponents and judges like Breyer sympathetic to death row inmates’ dubious claims. As rebuttal, Breyer noted that speeding up capital cases would risk increasing the error rate. Many of the documented exonerations came years or even decades later. “Administration of the death penalty can take place swiftly but unreliably or it can take place with long delays but without significant justifying purposes,” Breyer said. “We cannot have it both ways.”
      As his final point, Breyer saw a waning of public support for executions. Among the 31 death penalty states, only seven carried out executions in 2014. In Texas, the number of new death sentences has fallen from 48 a decade and a half ago to only nine last year. And a detailed map shows that even in death penalty states death sentences are concentrated in a small number of counties: for example, Harris County (Houston) in Texas and Shelby County (Memphis) in my home state, Tennessee.
      “We are a court, not a legislature,” Breyer concedes. But these issues, he says, are judicial matters that implicate the Eighth Amendment. The time has come, he and Ginsburg now say, for the Supreme Court to consider the question anew. Full briefing and argument would force the justices to confront the issues with what is expected of them: reasoned judgment, not political rhetoric.

Monday, June 29, 2015

Conservatives Push Back Against Court's Liberal Tilt

      The Supreme Court ended its most liberal term since 1969 with a determined pushback by the court’s conservatives in two of three final decisions, but liberals still counted victories in most of the term’s major rulings.
      The Roberts Court conservatives, including the bloc-shifting justice Anthony M. Kennedy, coalesced on the term’s final decision day [June 29] to reject a challenge to Oklahoma’s protocol for lethal injections (Glossip v. Gross) and to require the Environmental Protection Agency (EPA) to reconsider rules for fossil-fueled power plants to reduce emissions of mercury and other hazardous air pollutants (Michigan v. EPA).
      In the third decision, however, Kennedy gave the liberal bloc the critical fifth vote to uphold Arizona’s anti-gerrymandering initiative creating an independent, politically balanced commission for congressional redistricting (Arizona Legislature v. Arizona Independent Redistricting Commission).
      The court issued its final decisions just one week after The New York Times had published a data-based analysis describing the 2014-2015 term as the most liberal of any since 1969. In an online updating of the compilation after Monday’s decisions, the Times counted 56 percent of the term’s decisions as liberal.
      That was the highest percentage of liberal rulings since Chief Justice Earl Warren’s retirement in 1969, according to the Times, based on a methodology used by the Supreme Court Database, a private research service funded in part by the National Science Foundation. The Times said that the database showed liberals often prevailed in 70 percent or more of the decisions during the Warren Court's 16-year era.
      Other number crunchers came up with higher batting averages for the liberals. Tom Goldstein, founder and publisher of SCOTUSblog, wrote in an end-of-term post that out of 26 cases that were "close" and "ideological," liberals prevailed in 19 or 73 percent. This writer, preparing the annual title Supreme Court Yearbook, counts liberal wins in eight of the top 10 cases and in eight out of 11 other “major” cases — or 76 percent in all.
      The liberal tilt is seen vividly in the term’s 21 rulings decided by 5-4 votes. Kennedy and the four liberals — Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan — formed the majority in 10 of the cases; Chief Justice John G. Roberts joined with the four liberals in one other. Kennedy and the four conservatives formed the majority in only five. Out of five others, three conservatives were dissenters in three; two conservatives and two liberals dissented in each of the other two.
      The liberal tilt is also confirmed by counting dissenting votes. Breyer ended the term with the fewest number of dissenting votes — six — for the first time under Chief Justice John G. Roberts Jr. and perhaps the first time ever. Kennedy, who has been the least frequent dissenter for most of the Roberts Court years, ended with eight dissenting votes. Besides Breyer, the other three liberal justices each had fewer dissents — Sotomayor (8), Ginsburg (10), Kagan (11) — than the four conservatives: Roberts (16), Alito (22), Scalia (23), Thomas (25).
      Roberts ended the term with the highest number of dissents in any of his 10 terms, surpassing his previous high of 14 in the 2008-2009 term. Roberts had the lowest number of dissents in three of the previous nine terms.
      Liberals prevailed in the term’s two biggest headline-grabbing decisions: the ruling to guarantee marriage rights to same-sex couples (Obergefell v. Hodges, 5-4) and the decision to uphold Obamacare subsidies to customers of newly created health insurance marketplaces nationwide (King v. Burwell, 6-3).
      Among other decisions in the Supreme Court Yearbook “Top Ten,” liberals upheld broad application of the federal Fair Housing Act (Texas Department of Housing and Community Affairs, 5-4) and judicial ethics rules barring judges from direct solicitation of campaign contributions (Williams-Yulee v. Florida Bar, 5-4). Roberts was the author and the fifth vote in the judicial ethics decision.
      The court sided with the president over Congress in striking down a law that would have allowed a U.S. citizen born in Jerusalem to list “Israel” as his or her birthplace (Zivotofsky v. Kerry). Three conservative justices dissented: Roberts, Scalia, and Alito; Thomas concurred in part and dissented in part. In less divided cases, the court somewhat limited the federal threat statute in the closely watched Facebook case (Elonis v. United States, 7-2). And it strengthened religious freedom rights of employees and job applicants (EEOC v. Abercrombie & Fitch, Inc., 8-1).
      Against those eight liberal wins, including Monday’s Arizona redistricting case, conservatives counted victories in only two of Supreme Court Yearbook’s “Top Ten”: the decisions Monday in the lethal injection and EPA mercury regulation cases. Among other “major” cases, the conservative bloc plus Kennedy prevailed in only one other 5-4 decision: the ruling to strike down on property rights grounds a U.S. Department of Agriculture marketing program for raisin producers (Horne v. U.S. Department of Agriculture).
      The percentage of 5-4 decisions — 21 of 66 or 31.8 percent — was the highest figure since the 2006-2007 term, when the court hit a historic high with 24 of 68 one-vote decisions or 35 percent. One methodological note: Supreme Court Yearbook counts two cases with partial dissents as 5-4 decisions, although SCOTUSblog counts those rulings as 6-3 (Kansas v. Nebraska, a water rights dispute, and Zivotofsky).

Sunday, June 28, 2015

Celebrating a Fundamental Right for All

      The Supreme Court’s decision extending marriage rights to gay and lesbian couples nationwide showcases Justice Anthony M. Kennedy simultaneously at his best and his worst. Kennedy’s 28-page opinion in Obergefell v. Hodges [June 26] is more lyrical than legal: heavy with florid celebration of the deeper meaning of marriage, somewhat light on legal citations.
      Naturally, the dissenters in the 5-4 decision seized on the weak spots. In the main dissent, Chief Justice John G. Roberts Jr. complained of Kennedy’s “aggressive application” of substantive due process with “not a single sentence” to support the equal protection prong of the ruling. Justice Antonin Scalia acidly observed that Kennedy’s opinion was “couched in a style as pretentious as its content is egotistic.”
      For his part, Justice Clarence Thomas skewered Kennedy’s obsessive focus on individual dignity: “The Constitution contains no ‘dignity’ clause,” he wrote. And, like the others, Justice Samuel A. Alito Jr. saw the ruling as nothing more than the personal preferences of their colleagues: “five lawyers,” as Roberts called them. The majority was claiming the power to confer the right to marriage, Alito concluded, “simply because they believe it is fundamental.”
      Kennedy resisted the temptation to respond in kind, with no explicit reference to his dissenting colleagues. He focused instead on the positive. The right to marriage is fundamental, he explained, not just because the Supreme Court has said so — in Loving v. Virginia (1967) and other cases — but because it is. The right to marry the person of one’s choice, Kennedy reasons, “is inherent in the concept of individual autonomy.” Marriage, he says, allows the individuals together to find other freedoms: “expression, intimacy, spirituality.”
      As the second of four premises, Kennedy says that marriage supports a “two-person union” unlike any other. It offers “the hope of companionship, understanding, and assurance” while also responding to “the universal fear that a lonely person might call out only to find no one there.” And, third and fourth, marriage provides safeguards to children and families and serves as “a keystone of social order.”
      In the dozens of lower court decisions over the past two years, judges went to great lengths to shoot down the arguments that same-sex marriage opponents offered to defend the state bans: fewer marriages, more out-of-wedlock children, and so forth. Kennedy brushed those fears off with a single paragraph. The predictions of harmful outcomes for opposite-sex marriages were “counterintuitive,” he wrote. And opponents “had not shown a foundation” for their warnings.
      On the opposite side, the dissenting justices equally failed to prove that the dire outcomes were likely. The issue brings to mind the clash during oral arguments between Scalia and Justice Elena Kagan over which side had the burden of proof in the cases. Scalia said the plaintiffs had to prove the bans unjustified, while Kagan countered that the states had to show justifications for excluding gays and lesbians. Kennedy’s opinion shows that Kagan won that point.
      For his response, Roberts depicted Kennedy’s opinion as an exercise in anti-democratic judicial supremacy, a revival of the discredited Lochner era of striking down laws passed by the people’s representatives. Roberts’ response would ring more true if he had not helped put together the 5-4 majorities that plowed new ground by overriding legislative enactments that limited corporations’ spending in political campaigns and that banned possession of handguns.
      In any event, marriage advocates long ago came up with the apt response to the political process argument. “We didn’t get to vote on your marriage,” they said, waggishly. “Why do you get to vote on ours?” Margaret Marshall, the former Massachusetts chief justice who wrote the state’s landmark marriage equality ruling in 2003, commented more seriously that Roberts seemed to have forgotten that Americans live in a constitutional, not a parliamentary, democracy.
      Like the other three conservatives, Roberts warned of dire consequences from the ruling not so much for marriage, but for the body politic and, ironically, for same-sex couples and their advocates. “Closing debate tends to close minds,” he wrote. “People denied a voice are less likely to accept the ruling of a court.” Alito worried even more open-endedly. “[A]ll Americans . . . should worry about what the majority’s claim of power portends,” he wrote.
      Social conservatives and some, but by no means all, of the Republican politicians who responded to the ruling echoed those sentiments. But with polls now showing majority support for same-sex marriage rights, President Obama seemed to capture popular sentiment more accurately by embracing the ruling unqualifiedly — and lighting up the White House in rainbow colors in the evening.
      By day’s end, same-sex couples apparently were marrying in every state but Mississippi. “It would misunderstand these men and women to say that they disrespect the idea of marriage,” Kennedy wrote. “Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions.”
      To his partial credit, Roberts closed by urging same-sex couples to go ahead and celebrate the victory —  but not the Constitution. “It had nothing to do with it,” he said. Kennedy disagreed. Gays and lesbians, he said “ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

Thursday, June 25, 2015

Verrilli Takes Victory Lap in Obamacare, Housing Cases

      President Obama was quick to claim victory after the Supreme Court’s decision today [June 25] allowing tax credits to customers of Obamacare health insurance exchanges nationwide. “This was a good day for America,” Obama declared at a news conference arranged within the hour after the court issued its ruling.
      Obama had good reason to feel vindicated and relieved after all the abuse he and his signature domestic policy achievement have taken from political opponents, conservative ideologues, and ill-informed health care consumers. But the official even more entitled to a victory lap was Solicitor General Donald S. Verrilli Jr., who argued and won both of the cases the court decided today.
      Verrilli, it will be recalled, was panned after his arguments three years ago in the first Supreme Court challenge to the Affordable Care Act. Yet he emerged victorious in the 5-4 decision, NFIB v. Sebelius (2012), when Roberts crucially bought Verrilli’s fallback argument that the individual mandate could be viewed as a constitutional tax even if beyond Congress’s powers over interstate commerce.
      The court’s new decision, King v. Burwell, is a purer victory for the S.G.’s office. Roberts’ 21-page opinion for a 6-3 majority subscribes to the government’s arguments virtually lock, stock, and barrel. (For the dissenters, Justice Antonin Scalia would presumably say that the court bought the government’s argument hook, line, and sinker.)
      The issue in the case was whether tax credits are available to customers of the new health insurance marketplaces only for exchanges created by the states, not for those established by the feds under a fallback provision. Despite countless pages of argumentation in legal briefs, the argument came down to the meaning of two phrases in the law: one referring to “an exchange established by the state” (section 1311) and another referring to the federal government’s establishment “of such exchange” (section 1321).
      As a main proposition, Verrilli argued that the later reference to “such exchange” unambiguously equated exchanges created by the federal government with those created by the states — and thus tax credits were available to customers either way. Roberts disagreed. The text of the law “is ambiguous,” he wrote two-thirds of the way through his opinion. But both before and after that passage, Roberts viewed the law — its purpose and structure — just as Verrilli had presented it. And, just like Verrilli, Roberts concluded that the law could not possibly work — and could not possibly have been intended to work — the way depicted by the plaintiffs and the anti-Obamacare forces lined up behind them.
      Roberts opened by explaining that the Affordable Care Act’s key provisions are “closely intertwined.” The guaranteed issue and community rating provisions require insurers to cover all comers, without raising premiums based on a person’s health. The individual mandate guarded against the resulting possibility that people would wait until they were sick to buy insurance – and thus drive up rates for those in the insurance pool. And to make the insurance mandate affordable subsidies were provided for those below specified income levels.
      Back in oral arguments [March 4], Verrilli argued that the argument offered on behalf of four Virginians recruited by the anti-Obamacare Competitive Enterprise Institute would doom the intricately constructed system. Without subsidies, the Department of Health and Human Services would have to establish “rump exchanges that are doomed to fail.” He continued: “That cannot be the statute that Congress intended.”
      Roberts agreed — with Justice Anthony M. Kennedy and four liberal justices voting along with him. The plaintiffs had “strong” arguments about the plain meaning of the text, he acknowledged, but their argument would “destabilize” insurance markets in the states — 34 in all — that have not established their own exchanges. Congress could not have intended the law to work that way, Roberts wrote — significantly quoting as authority the four dissenters from the earlier Obamacare ruling.
      Despite “inartful drafting” in the law, Roberts said that the court had to interpret the ambiguous passage based on “the broader structure” of the act. He expressly rejected the plaintiffs’ argument that Congress had meant to withhold subsides from the federal exchanges in order to encourage the states to take on the job. Congress would have been more explicit in making that threat if that was its purpose, he said.
      Writing for the three dissenters, Scalia railed at the decision in a 21-page opinion summarized from the bench and laced with Scaliaisms: “interpretive jiggery-pokery,” he called Roberts’ opinion. The key term — “exchange established by the state” — could have only one meaning; any other construction was “quite absurd.” He ended by accusing the majority of distorting statutory interpretation only because they liked the law so much. That would be news to Roberts, no great fan of the law in the earlier case, and to Kennedy, who voted with Scalia, Clarence Thomas, and Samuel A. Alito Jr. to throw out the act in its entirety.
      Verrilli’s victory in the important housing discrimination case decided before the Obamacare ruling attracted less attention immediately, but was equally significant — and the outcome equally uncertain beforehand. Kennedy wrote for a five-justice majority in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. in ruling that the federal Fair Housing Act encompasses claims that decisions by developers or housing authorities may be illegal if they have a “disparate impact” on racial or ethnic minorities without justification. There is more to be said about that decision, but in a later column.

Sunday, June 21, 2015

Solitary Confinement: Cruel but Not Unusual

      Hector Ayala, convicted murderer, has spent most of his 25-plus years in California’s San Quentin prison in what corrections officials call “administrative segregation” — solitary confinement. Ayala spends 23 hours each day alone in a small cell; he is allowed an hour of exercise, but with little or no opportunity to talk or interact with other prisoners.
      Justice Anthony M. Kennedy elicited that information about Ayala’s incarceration at the end of a Supreme Court argument in early March on Ayala’s efforts to get a new trial. Ayala was asking the court to uphold a lower court order granting him a new trial on the ground that blacks and Hispanics were improperly excluded from the jury that convicted him in 1989 of a triple murder four years earlier.
      Kennedy voted with four other conservative justices in the 5-4 decision, Davis v. Ayala, that found no fault with the jury selection procedures and nullified the order to grant him a new trial. But when he testified before Congress a month after the argument in connection with the court’s budget, Kennedy recalled the case in an extemporaneous comment criticizing solitary confinement. The practice “literally makes men mad,” Kennedy told a House Appropriations subcommittee on April 4.
      Ayala is one of an estimated 25,000 inmates in the United States currently serving sentence in whole or substantial part in solitary confinement. An American law professor serving as a United Nations human rights official concluded a few years ago that long-term solitary confinement constitutes torture, in violation of an international treaty signed by, among others, the United States.
      Kennedy used a more visible platform last week [June 18] to speak out against solitary confinement and, in an extraordinary departure from judicial restraint, to invite constitutional challenges to the practice. Near the end of a four-page concurring opinion in Ayala’s case, Kennedy said that, in a proper case, “the judiciary may be required . . . to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them.”
      Kennedy accuses the legal profession and the public of being late to correctional issues, but he can rightly be accused of being late to the issue of mass, long-term incarceration. Kennedy provided a critical fifth vote in 1991 for upholding a life-without-parole sentence imposed on a South Dakota for possession of 672 grams (about 23 ounces) of cocaine. A decade later, he again provided a critical fifth vote in 2003 for upholding California’s “three-strikes law,” which imposes a mandatory life term for a three-time recidivist.
      Two years later, Kennedy wrote for a unanimous court in finding no due process problems in Ohio’s system of imposing administrative segregation on dangerous or recalcitrant inmates (Wilkinson v. Austin, 2005). He noted, however, that Eighth Amendment issues of cruel and unusual punishment had been dropped or resolved in lower courts before the justices got the case.
      Kennedy gets more credit from sentencing reform advocates for providing critical votes in five other cases from 2002 to 2012 that limited eligibility for the death penalty and restricted life-without-parole sentences for juvenile offenders. In addition, he wrote the 5-4 decision in Brown v. Plata (2011) upholding a lower court order that California reduce overcrowding in prisons. Kennedy wrote in that opinion that the medical and mental health care provided to California inmates was “below the standard of decency” inherent in the Eighth Amendment.
      In the new case, Kennedy makes clear that he believes long-term solitary confinement also falls below standards of decency. He notes criticism of the “human toll” of long-term isolation by, among others, an 18th-century British prison reformer and the 19th-century English novelist Charles Dickens.
      The Supreme Court itself remarked in 1890 on the “further terror and peculiar mark of infamy” for inmates subjected to solitary confinement. The court in In re Medley noted that “a considerable number” of inmates in solitary confinement “fell . . . into a semi-fatuous condition,” while “others became violently insane” and “others, still, committed suicide.”
      Kennedy acknowledged that Ayala’s solitary confinement had no bearing on the legal issues in his case. But Justice Clarence Thomas felt obliged to issue a sharp rejoinder. He noted that Ayala’s “accommodations” were “a far sight more spacious” than those of the three victims in the case. Thomas has voted consistently since joining the court in 1991 to reject Eighth Amendment claims about prison conditions — even in an unsavory Alabama case brought by an inmate shackled to a “hitching post” for an entire day (Hope v. Pelzer).
      The risk of suicide from long-term solitary confinement was made clear in the recent case of Kalief Browder, the teenager who hanged himself at New York City’s infamous Rikers Island after being held for three years without trial for stealing a backpack. Kennedy includes a citation to the incident as evidence of “a new and growing awareness in the broader public” about corrections issues and solitary confinement in particular.
      Solitary confinement has grown and become institutionalized in the era of mass incarceration. “Years on end of near-total isolation exacts a terrible price,” Kennedy writes. The price is paid by individuals with little capacity to influence the political branches. Kennedy rightly suggests the courts as the most likely forum for stemming a cruel but not-so-unusual punishment.

Saturday, June 13, 2015

Scalia's Originalist Sin in Passport Case

      The Supreme Court got it right when it struck down a law that Congress passed, in contradiction of U.S. foreign policy, allowing U.S. citizens born in Jerusalem to list Israel as their birthplace on passports. But the court reached the right result in a diplomatically delicate case despite the sharp disagreement between the two originalist justices, Antonin Scalia and Clarence Thomas, about the original meaning of the Constitution on the issue.
      As constitutional cases go, this question looks pretty easy: Does the president have the power of diplomatic recognition of foreign governments, exclusive of Congress or the courts? Compare that issue to cases that call on the justices to define elastic terms such as “due process” or “unreasonable search and seizure” or to engage in difficult line-drawing under the Equal Protection Clause.
      On this simple case, however, Scalia and Thomas reached totally opposite conclusions. The disagreement proves — if proof were needed — that originalism is not a totally objective quasi-scientific method as its advocates like to suggest. And Scalia’s stance has the appearance of a politically motivated inconsistency. He voted, along with two Republican-appointed conservatives, to trim presidential power with a Democrat in the White House and to enlarge the power of what is now a meddlesome, Republican-controlled Congress.
      The power of diplomatic recognition stems from the so-called Reception Clause in Article II, which states that the president “shall receive ambassadors and other public ministers.” Congress gets no directly corresponding power in Article I. True, Congress has, among others, powers “to regulate commerce with foreign nations” and “to establish an uniform rule of naturalization.” And, as always, Congress can wield the power of the purse to influence or condition a president’s decisions on foreign policy.
      A Supreme Court majority consisting of Justice Anthony M. Kennedy and the four liberals acknowledged those congressional powers but found no textual basis for interfering with the president’s “exclusive” power of diplomatic recognition. “The formal act of recognition is an executive power that Congress may not qualify,” Kennedy wrote. The president cannot be effective in diplomatic negotiations over recognition, Kennedy reasoned, unless it is “evident . . . that he speaks for the Nation on that precise question.”
      Kennedy found the president’s power supported by judicial precedent and historical practice despite ambiguities that had accumulated over more than 200 years. The court’s opinions affirm the president’s power, Kennedy said, despite some stray remarks in a couple of decisions.
      In practice, Congress and the president have sometimes engaged with each other on diplomatic recognition issues. Most recently, Congress passed a law treating Taiwan as a distinct entity even as President Carter withdrew recognition and recognized the mainland government instead. But Kennedy said the history shows that presidents sometimes choose to cooperate with Congress, not that Congress has any power to contradict the president on recognition issues.
      What does the Great Originalist make of all this? Scalia throws up his hands. The Constitution gives the president the power of diplomatic recognition, he says, “but I find it a much harder question whether it makes that power exclusive.” So he leaves the question for another case on the flimsy premise that a U.S. passport treating Jerusalem as part of Israel “does not concern recognition.”
      Still, Scalia must find some power for Congress to pass the law in question. He stitches Congress’s authority over passports from the threads of the various foreign policy-related powers in Article I. He is joined in this by Chief Justice John G. Roberts Jr. and Samuel A. Alito Jr., all three of whom found no power for Congress to enact Obamacare under the broadly phrased power to regulate interstate commerce.
      Thomas, on the other hand, sides with the president on this one. He bases his conclusion, however, not so much on the Reception Clause, but on the totally open-ended clause at the beginning of Article II that vests “the executive power” in the president of the United States. Scalia is shocked. Thomas’s conception of the presidency, he says, “is more reminiscent of George III than George Washington.”
      The two originalists also part ways on Congress’s power to meddle with passports. Thomas sees little basis for Congress to act under its specifically enumerated powers nor under the broadly phrased Necessary and Proper Clause. The Jerusalem passport law is “improper,” Thomas concludes, because it seeks to instruct the president on the exercise of his executive powers. For Scalia, the law is just a run-of-the-mill policy disagreement.
      In past cases, Scalia has been a fan of presidential power, but not in this one. Why not? Harvard law professor Noah Feldman sees inconsistency on his part and his fellow dissenters’. “The conservatives don’t like this president and his claims of executive power,” Feldman writes for BloombergView. “[M]ake no mistake,” he concludes. “Contemporary politics helped shape the outcome” in the case.
      In the play The Originalist, playwright John Strand accurately captures Scalia’s philosophy in the opening scene. “I am an originalist,” Scalia declares. “Okay. Anybody need a definition? Originalism: to interpret the Constitution as it is written and as it was understood when its authors crafted the original document. As simple as that.”
      Make no mistake: it is not as simple as that. Credit Scalia with constitutional consistency at times — on the Fourth Amendment, for example. But all too often originalism for him is merely a pretext for, yes, legislating from the bench.

Sunday, June 7, 2015

Counting Everyone for 'One Person, One Vote'

      The Framers of the Constitution were very explicit about the rules for population counts to be used in determining the number of members each state was to have in the new Congress. Seats in the House of Representatives were to be “apportioned among the several states . . . according to the whole numbers of free persons,” the Framers wrote in Article I (emphasis added).
      The Framers crafted two exceptions to that general rule. They excluded Indians who were not taxed and counted only three-fifths of “all other persons” — that is to say, slaves. That tainted provision was the key to the South’s secure domination of Congress and the presidency until the Civil War.
      With the Union’s victory in the Civil War, slavery was abolished and the three-fifths clause eliminated. The new apportionment provision in the Fourteenth Amendment was written instead to refer simply to “the whole number of persons,” with nontaxed Indians again excluded.
      Given that language, the case that the Supreme Court agreed to hear late last month [May 26] seeking to base legislative apportionment on voters instead of overall population should be as simple as ABC for a true originalist. The Framers explicitly counted nonvoting slaves, even if fractionally. Nothing in the phrase “whole number of persons” suggests they meant to exclude non-property owners, nonvoting women, disenfranchised felons, or minors.
      In place of the simple rule, two Texans — one of them a Republican county chairwoman — want to count not people, but eligible voters, in apportioning seats in the state’s legislature. The plaintiffs in Evenwel v. Abbott say that the Supreme Court’s “one-person, one-vote” series of decisions suggest that legislative districts should be equal in the number of voters, not total population.
      Sue Evenwel, Republican chairwoman in mostly rural Titus County, says she lives in a senatorial district with about 584,000 voters, while an adjacent Houston area district has only 372,000 voters. She says her vote is undervalued compared to those of voters in urban districts whose numbers are swollen by non-voting eligible populations, including undocumented aliens. Co-plaintiff Edward Pfenninger lives in mostly rural Montgomery County north of Houston.
      Just as with other voting-related litigation, this new case must be viewed through a political lens. The case amounts to a hardly-at-all veiled effort to give political advantage to Republicans and to disadvantage areas with Democratic-leaning constituencies.
      The three-judge district court that heard Evenwel’s suit — all of them appointed by President George W. Bush — needed only 10 pages to dismiss it. The Supreme Court “has generally used total population as the metric of comparison” in redistricting cases, the court stated. The plaintiffs’ theory of using voter population has “never before been accepted by the Supreme Court or any circuit court.”
      Evenwel’s suit was birthed by Edwin Blum, head of the self-styled Project on Fair Representation. Blum’s most important legal accomplishment was to mastermind the case, Shelby County v. Holder, that led the Supreme Court to gut the federal Voting Rights Act’s all-important preclearance provision for jurisdictions with a history of voting discrimination.
      The Supreme Court laid down the “one-person, one-vote” principle in its 1964 decision, Reynolds v. Sims, which requires both chambers of bicameral legislatures to be apportioned “on a population basis.” Ruling in a Hawaii case two years later, Burns v. Richardson (1966), the court upheld a legislative apportionment plan that used voter instead of total population. The court said that its earlier decision “carefully left open the question of what population was being referred to.”
      Thirty-five years later, Justice Clarence Thomas contended it was time to settle the question when he dissented from the court’s decision to deny certiorari in a Texas districting case. “As long as we sustain the one-person, one-vote principle, we have an obligation to explain to States and localities what it actually means,” Thomas wrote in Chen v. City of Houston (2001).
      No other justice joined Thomas’s call. Evenwel’s new case reached the court on a direct appeal from a three-judge court. The justices could have summarily affirmed the ruling with five votes; instead, there were apparently at least five votes in favor of addressing the issue with full briefing and argument. In urging a summary affirmance, Texas’s lawyers — the Republican governor, Greg Abbott, is the first named defendant — pointed to rulings from three federal circuits rejecting the voter-population theory. The Supreme Court denied certiorari in all three.
      A leading expert on redistricting issues notes that apart from the legal arguments the voter-population theory has a major practical problem. The once-a-decade census used in congressional and legislative apportionment counts only total population, according to Stanford law professor Nathaniel Persily, not eligible voters. The data cited in Evenwel’s suit comes from a Census Bureau survey of 2 percent of households, he says.
      “The data necessary to draw districts with equal numbers of eligible voters does not exist,” Persily wrote in an op-ed in Politico. “We have no national citizen database that tells us how many citizens live in each district around the country.”
      Texas argues in the case that states have discretion to use either total or voter population. To be true to the Framers, however, the court perhaps should settle the issue by insisting that states must count all people, not just those eligible to vote under rules subject to political manipulation. “One person, one vote” means just that.