Thursday, February 4, 2016

Supreme Court "Divided by Political Differences"

From Dupont Circle Village Newsletter, February 2016

Soup Salon guest Kenneth Jost (bottom right in photo) has been a legal journalist for three decades. Make that more than 50 years, if you count his high-school newspaper article on desegregation. Ken started his career at the Nashville Tennessean and got on the court beat a year later. Aside from a stint working as a legislative assistant for the then first-term Representative Al Gore, his friend from Harvard, he never turned his back on legal journalism. In DC, this began with Congressional Quarterly (CQ), which also published an annual book, The Supreme Court Yearbook, reporting on all the Supreme Court decisions of the year. Ken became its author at the same time that Ruth Bader Ginsburg joined the Court. He was also a writer and editor for CQ Press and CQ Researcher, as well as president of the DC chapter of the National Lesbian and Gay Journalists Association. His most recent book is Trending Toward #Justice, a compilation of his key columns and the backbone of his Salon talk.

“The conflicts of the early 21st century are coming before a Court more neatly divided by political differences than ever before,” Ken observed. He related this observation to why Justice Anthony Kennedy, who he termed “the bipartisan Justice” and “very earnest,” is so often the Court’s swing vote. Conservative as he is, Kennedy couldn’t have been confirmed without Democrats when President Nixon nominated him after the Bork debacle; indeed, he has proven less “fervently ideological” than his Republican peers on the Court. Still, he added, “this is a Court of judicial activism, whose majority is asserting a conservative politics more strenuously than is typical.”

Ken pithily summarized his book’s profiles of the other eight Justices.

• Roberts: “A nice guy” and also a “determined conservative.” “He’s responsible for the institutional credibility of the Court, which tempers him in some instances.”

• Scalia: “The Justice with an injudicious temperament...and more certitude than a Justice should have.”

• Thomas: “During his confirmation, he said he had no interest in overturning precedent, but that’s all he does.”

• Alito: “Overly dogmatic...but very effective at shaping arguments to go his way.”

• Ginsburg: “Even apart from the Court, she’d be in a legal hall of fame.” Ken added that he nonetheless believed she should have retired a few years ago, which prompted a lively discussion during the Q & A.

• Breyer: “He was once described as a ‘cold fish,’ and I agree.”

• Sotomayor: “Whatever her judicial legacy will be, she has charted a new path as a Justice of the people.”

• Kagan: Like Alito, she is “very effective at framing questions and arguments to her side.”

The book also features the history of some cases, criminal justice and equal representation issues, and how “things went awry with President Bush’s policies during the war on terror in trying to keep issues out of court.” On equal representation, especially for poor people, Ken also traces how the Court is narrowing remedies for injured parties.

The three pieces in the book Ken termed “the most meaningful” to him are tributes to his late, former publisher at the Nashville Tennessean, who sent him to jail, undercover, to report on conditions there; to the late Anthony Lewis, who inspired him to take up legal journalism and whom he hailed as the “creator of the modern Supreme Court beat;” and to the late Nelson Mandela— “an example of the powerful role law can play in promoting liberty and justice for all.”

Ken believes that the law has played that role here, as well. “Though there are big exceptions, on balance we have a freer and more just legal system because of the Supreme Court than we otherwise would.” Villagers can keep up with his astute views through his blog, Jost on Justice.”

Sunday, January 31, 2016

Court to States: Follow Us on Retroactivity

      The Supreme Court announces a new constitutional rule governing criminal cases. It then holds that the newly recognized constitutional right is the kind of “substantive” or “watershed” procedural rule that applies retroactively even if a defendant’s conviction has become “final” after all appeals are exhausted.
      Query: Do state courts also have to apply the new rule retroactively in post-conviction proceedings brought under state law? Under the Constitution’s Supremacy Clause, the answer seems at first blush self-evident: yes.
      Not so, according to three of the conservatives on the Supreme Court. Writing for the three in dissent, Justice Antonin Scalia argued last week [Jan. 25] that states can adopt their own rules on whether to give an inmate the benefit of a newly recognized constitutional right.
      A six-justice majority in Montgomery v. Louisiana that included Chief Justice John G. Roberts Jr. decisively rejected Scalia’s position. “[W]hen a new substantive rule of constitutional law controls the outcome of a case,” Justice Anthony M. Kennedy wrote for the majority, “the Constitution requires state collateral review courts to give retroactive effect to that rule.”
      This is the important preliminary holding in the decision that retroactively applies the court’s four-year-old decision to prohibit mandatory life-without-parole sentences for juvenile killers. The ruling effectively requires resentencing or parole hearings for as many as 1,300 or more prisoners currently serving life sentences for murders committed when they were teenagers.
      In immediate effect, the ruling may mean freedom for Henry Montgomery after spending nearly 46 years in prison for killing a deputy sheriff in Louisiana when he was, as Kennedy put it, “a 17-year-old boy.” Montgomery, now 69, says he has been a model prisoner, but under the life-without-parole sentence he had no established route to seek his release.
      Kennedy noted that the court in two previous decisions had ruled out capital punishment or mandatory life-without-parole sentences for juvenile offenders on the premise that children are “constitutionally different” from adults in terms of culpability (Roper v. Simmons, 2005; Miller v. Alabama, 2012). In deciding to apply Miller retroactively, Kennedy concluded that “prisoners like Montgomery must be given the opportunity to show their crime did not reflect irreparable corruption; and, if it did not, their hope for some years of life outside prison walls must be restored.”
      Montgomery cited Miller in a motion filed barely six months later under state law to “correct” what he called the “illegal” sentence imposed in his case in 1970. A lower court judge ruled Miller did not apply retroactively, and the Louisiana Supreme Court agreed — with the chief justice in a lone dissent.
      Most state and federal appeals courts to rule on the issue decided to apply Miller retroactively; Louisiana was one of five states in the minority. The Supreme Court agreed to hear Montgomery’s appeal to settle the issue.  But the court also raised on its own the question of whether it had any jurisdiction to review the Louisiana Supreme Court’s decision on how to apply Miller in the state’s own courts.
      Significantly, the state did not dispute the Supreme Court’s jurisdiction but merely argued for upholding the Louisiana court’s decision. The court instead appointed a Washington lawyer, Richard Bernstein, to argue as a “friend of the court” against its jurisdiction. In his brief, Bernstein said the retroactivity rules applied only to federal habeas corpus cases, not to post-conviction challenges in state courts.
      The court’s retroactivity rule stems from its fractured decision in a federal habeas corpus case, Teague v. Lane (1989). In the controlling opinion, Justice Sandra Day O’Connor said that a new constitutional rule of criminal procedure would not be applied retroactively unless it amounted to a “substantive” rule or a “watershed” procedural rule. Montgomery’s lawyer argued vigorously that Miller fit within the first exception, while the state’s attorney insisted that the decision merely gave a life-sentenced juvenile offender a procedural right to seek release.
      The oral arguments in Montgomery on Oct. 13 left observers in doubt whether the court would decide the issue at all. In retrospect, it is now clear that Scalia and fellow conservatives Clarence Thomas and Samuel A. Alito Jr. were intent on giving states leeway on whether to extend the benefit of newly recognized constitutional rights to prisoners after their cases had become final.
      In his dissenting opinion, Scalia argued that the Teague v. Lane exception to the general rule against retroactivity “is a matter of grace, not constitutional prescription.” Thomas and Alito, who like Scalia had dissented in Miller,  joined his opinion, but Thomas appeared to go even further in a separate dissent that argued against retroactively applying any new constitutional rule however “substantive” or “watershed.”
      Unsurprisingly, Kennedy, part of the five-justice majority in Miller along with the four liberals, saw the court’s power to correct constitutional violations at stake. “[W]hen a state enforces a proscription or penalty barred by the Constitution, the resulting conviction or sentence is, by definition, unlawful,” he wrote.
      Less predictably, Roberts joined the new decision even though he had strongly dissented from the original ruling. Roberts did not write separately to explain his position, but one can infer that he was unwilling to join his fellow conservatives in curtailing the court’s constitutional supremacy over state courts on matters of federal law. When the court speaks, Roberts may well have been thinking, the states need to listen.

Thursday, January 28, 2016

Doubts on U.S. as Leader of Free World

      With freedom in decline worldwide for the tenth consecutive year, the United States stands not as a bright and shining beacon but a worrisome if modest example of a seriously worrisome trend. That is the chastening assessment from Freedom House, the venerable human rights organization, in its annual report Freedom in the World 2015, released this week [Jan. 27].
      The reasons for global gloom on political freedom and civil liberties are well known: crackdowns on dissent in China and Russia; the post-Arab Spring turmoil in the Middle East and North Africa; and the rise of illiberalism in parts of Europe as seen in the xenophobic reaction to the flood of refugees from Syria’s brutal civil war. For the year, Freedom House gave downward arrows to 105 countries based on their aggregate scores for political and civil freedoms.
      Among the countries with downward arrows, the United States has the highest overall score — 90 — and the decline over a five-year span is only a few points. But the reasons for a downbeat assessment of freedom in the United States are also familiar: legislative gridlock, accentuated by political gerrymandering; the growing influence of money in political campaigns; erosion of the right to vote; a lack of transparency in the Obama administration; and racial and other issues in the criminal justice system from policing to prosecutions to prisons.
      “The United States still has the most dynamic political system in the world,” says Arch Puddington, who oversees the annual reports as the organization’s vice president for research. But, he adds, “In some areas, we’re showing some weaknesses.”
      Overall, Freedom House rates 86 countries, including the United States, as “free,” with about 44 percent of the world’s population. With lower ratings, 59 countries are counted as “partly free,” with about 24 percent of the world’s people; and 50 countries as “not free,” with the remaining 36 percent of global population.
      The U.S. aggregate score of 90 is high, but far from the highest. Some 40 countries score higher, including three Scandinavian nations given perfect scores of 100. Almost all of Europe is in the 90s, including several former communist countries: Czech Republic, Estonia, Lithuania, Poland and Slovenia. Other countries that rank higher than the United States include Canada, Australia, Japan, and two neighbors to the South: Chile and Uruguay.
      Among the global human rights organizations, Freedom House ranks as perhaps the oldest: founded in 1941, two decades before Amnesty International and well before the foundings of the U.S.-based Human Rights Watch and Human Rights Watch in 1978. It was founded with bipartisan support from President Franklin D. Roosevelt and his Republican opponent in 1940, Wendell Willkie. With the start of the Cold War, it quickly adopted a strong anti-communist stance even as some on the political left were fellow travelers or apologists for communism.
      In some sense then, Freedom House sits toward the right in the present-day array of human rights groups. But the critique of U.S. policies in the current report strikes chords with notes heard from the left-leaning popular movements Occupy Wall Street and Black Lives Matter.
      Puddington lists “the shooting of unarmed black civilians” and “the lack of real competent defense for indigent defendants” as among the issues facing the U.S. criminal justice system. “Racial and ethnic tensions have seemingly widened,” the written report states. It points not only to “police violence and impunity,” but also to “de facto residential and school segregation.”
      The report also complains of “undue interference by wealthy individuals and special interests” in elections and the legislative process. And it cites growing attention to economic inequality and “fears that class mobility, a linchpin of America’s self-image and global reputation, is in jeopardy.”
      Without naming names, the report also scores the “angry, anti-Muslim tone” heard in the political debate over immigration and national security “at least on the right.” And it notes the spike in Islamophobic hate crimes following the terrorist attack in San Bernardino.
      More worrisomely, the report also notes concern about the role the United States should play in promoting democracy worldwide. “Some elected officials on both sides of the political spectrum also cast doubt on America’s long-standing goal of supporting democracy overseas, arguing that U.S. involvement only causes instability,” the report states.
      Those doubts fit with part of Freedom House’s overall theme for the past year: “Anxious Dictators, Wavering Democracies.” The mixed reaction to the migrant crisis in Europe is seen as casting doubt on Europe’s ability to maintain high democratic standards in what the report calls “a time of rising populism.”
      Against the overall gloom, bright spots are relatively few but not insignificant. Puddington cites among others the elections that ousted undemocratic leaders in Nigeria and Burma and the anti-Chavez opposition’s ground-gaining in Venezuela.
      The giddy days of advancing democratization in the 1990s are now a fading memory, along with the hopes stirred by the Arab Spring. The “Free World” faces growing challenges in countering anti-democratic trends in authoritarian states and even in some democracies. Sadly, the report depicts the United States as something less than the confident and credible leader needed to meet those challenges and reverse the downward trend for freedom in the world.

Sunday, January 24, 2016

In Immigration Case, Politics Front and Center

      Chief Justice John G. Roberts Jr. was beside himself in dissent when the Supreme Court in 2007 upheld a suit by the state of Massachusetts to force the Environmental Protection Agency (EPA) to regulate greenhouse gases. Roberts and three like-minded conservatives argued unsuccessfully that Massachusetts had no legal standing to bring the politically charged issue into a federal court.
      Nine years later, the court now has to decide whether Texas and 25 other Republican-led states have the legal standing needed to sue the Obama administration over its policy to protect some 4 million illegal immigrants from the threat of deportation. The federal appeals court for Texas relied on the Supreme Court’s earlier decision to allow the suit, but Texas’s claimed injuries are flimsy in the extreme in comparison to Massachusetts’ claims in its earlier suit.
      To be consistent, Roberts and the other conservatives should vote to toss this suit and clear the way for the Obama policies to go into effect. In agreeing to hear the case, however, the court gave a tantalizing clue that the conservative justices are if anything eager to expand a somewhat technical issue of administrative law into a major showdown over Obama’s use of presidential power.
      At issue in the case, United States v. Texas, are two policy guidance memos issued by Homeland Security Jeh Johnson in November 2014 that effectively shield parents of U.S. citizens or permanent residents from the threat of deportation. Obama followed by announcing “executive actions” to allow renewable three-year work authorizations to immigrants granted “deferred action” status.
      A federal judge in Brownsville, Texas, and a divided panel of the Fifth U.S. Circuit Court of Appeals both ruled that Johnson’s memoranda were the kind of agency action that required formal rulemaking procedures and, in any event, were “arbitrary and capricious” applications of federal immigration law. The administration put those questions along with Texas’s legal standing in its petition asking the Supreme Court to review the Fifth Circuit decision.
      Given the importance of the issue, the justices had no alternative but to hear the government’s appeal. In its order granting review, however, the court directed the attorneys to address the additional question whether the guidance violates the Constitution’s so-called Take Care Clause, which requires the president to “take care that the laws be faithfully executed.”
      Constitutional law experts quickly reported that courts have hardly ever interpreted the Take Care Clause – and for good reason. As important as the president’s executive powers may be, questions of enforcement priorities are largely political not legal disputes, hardly susceptible of judicial resolution without injecting the courts into politics.
      In his dissenting opinion in the earlier case, Massachusetts v. Environmental Protection Agency (2007), Roberts argued that Massachusetts complaint did not belong in the courts. “This Court’s standing jurisprudence simply recognizes,” he wrote, “that redress of grievances of the sort at issue here ‘is the function of Congress and the Chief Executive,’ not the federal courts.”
      The majority in the Massachusetts case found that the state had standing because of the risk that it would lose land as sea levels rose because of global warming. “Massachusetts has a special interest and position here,” Justice Anthony M. Kennedy wrote for himself and four liberal justices. He emphasized as well that the state was invoking a federal law, the Clean Air Act, in seeking to force EPA to adopt a rule regulating greenhouse gases in order to protect its sovereign interests.
      Texas has no comparable position in attacking the Obama administration. The “deferred action” policy guidance memos are just that, not formal rules. And the administration notes that it has to adopt enforcement priorities because it has the money for no more than 400,000 deportations per year.
      Even if Texas had a good administrative law case, it stretched to try to show legal standing. In its most specific allegation, Texas claims that it will lose “millions of dollars” under the Obama policies because of the state’s decision to provide below-cost driver’s licenses to immigrants not facing deportation. In its filing with the Supreme Court, the state goes on to claim on behalf of all the states “an interest in enforcing their own legal code and in protecting their citizens’ economic well being.”
      The administration flatly rejects the argument. “Like a member of the public, a State generally lacks standing to challenge the Executive’s policy choices about how to enforce federal laws, including the immigration laws,” the solicitor general’s office wrote in its appeal. The brief argues as well that the states have no sovereign interest to assert because the deportation power lies with the federal government, not the states.
      From the start, Republican lawmakers and conservative commentators have framed the issues in this case in starkest terms. They view the immigration policies as merely one example of Obama’s lawless overreaching of presidential power – along with tweaks to the Affordable Care Act and, more recently, a tighter definition of gun dealers subject to the federal background check requirement.
      For these Obama opponents, the court’s decision to add the Take Care Clause to the immigration case is red meat indeed. As chief justice, Roberts has said he wants to steer the court clear of politics. The court’s decisions gutting federal campaign finance law and the federal Voting Rights Act belie Roberts’s stated intentions. And politics will be front and center when the immigration case is argued in April.

Sunday, January 17, 2016

In Union Case, Counting to Five to Overrule Precedent

      The Supreme Court is about to reverse a 40-year-old precedent important to the financial solvency of public employee unions for no good reason except that the conservative justices have the votes to do it. Among the 200-plus reversals of precedents in the court’s history, this one will rank low in legal logic and high in pure political muscle-flexing.
      To be clear, the court has said in several decisions that the principle known as stare decisis is not an inexorable command that precedents stay on the books. Prior decisions can be overruled, the court has said, if they prove to be unworkable or if underlying legal doctrines change. But the court’s credibility suffers if it changes course for no reason except a change in the court’s membership.
      The precedent at stake, Abood v. Detroit Board of Education (1977), allows government employee unions, when authorized by state law, to collect so-called “agency” or “fair share” fees from non-members to pay for the costs of collective bargaining. The bifurcated decision, written by the Republican-appointed moderate justice Potter Stewart, required on free-speech grounds that the unions prevent any use of the mandatory fees from non-members for lobbying or political purposes outside collective bargaining.
      Twice in the past four years, the Roberts Court’s five conservatives have joined in opinions criticizing the old decision but without overruling it. Then they took up a case directly challenging the precedent engineered by the Center for Individual Rights, a conservative Washington-based public interest law firm. The center recruited 10 California non-union teachers who object to paying fees to the California Teachers Association to serve as plaintiffs in the new case, Friedrichs v. California Teachers Association.
      As Justice Stephen G. Breyer remarked in oral arguments last week [Jan. 11], Abood was “a compromise.” It balanced the free-speech concerns of non-union members not to pay for political advocacy with which they disagreed against the unions’ interest in financing collective bargaining that by law benefits members and non-members alike.
      Admittedly, four justices would have barred the mandatory fees: Chief Justice Warren E. Burger and associate justices Harry A. Blackmun, Lewis F. Powell Jr., and William H. Rehnquist. Nevertheless, the precedent stayed on the books, and unions established accounting procedures to separate “chargeable” collective bargaining expenses from “non-chargeable” lobbying or political advocacy.
      Even if sometimes contentious, these arrangements have not proved to be unworkable. Nor have there been any changes in underlying legal doctrines to undermine Abood’s compromise. But groups opposed to public employee unions have gained political ground in recent years. Notably, two states that previously allowed public unions to collect agency fees, Michigan and Wisconsin, changed course after Republican wins in gubernatorial and legislative elections.
      The climate at the Supreme Court was also changing. In a 1991 decision, Justice Antonin Scalia acknowledged public employee unions’ interest in preventing “free ridership” by non-members. But Scalia joined the two recent decisions, both written by conservative Samuel A. Alito Jr., criticizing Abood and all but inviting opponents to ask for it to be overruled.
      In neither of the decisions —  Knox v. Service Employee International Union (2012) or Harris v. Quinn (2014) — did Alito contend that Abood is simply unworkable. In the second of the rulings, he called Abood “an anomaly.” It is not. Indeed, federal labor law allows agency fees in private sector unions, and 23 states plus the District of Columbia still allow public employee unions to collect “fair share fees” from non-members.
      Plaintiffs’ attorney Michael Carvin had sympathetic ears from the five Roberts Court conservatives during oral arguments, but the liberal justice Elena Kagan asked him what “special justification” he had for overruling Abood. Carvin had none. “Abood erroneously denies a fundamental right,” he said. As Kagan remarked, under that logic any decision rejecting a claimed right would lose any stare decisis effect. Respect for precedent would be out the window.
      By coincidence, the court overturned two precedents the very next day after the arguments in Friedrichs. In Hurst v. Florida, the court overruled two decisions from the 1980s that had previously upheld Florida’s capital punishment system, which gave judges the power to make findings necessary to impose the death penalty. Those old rulings, Justice Sonia Sotomayor explained, were inconsistent with decisions over the past 15 years generally requiring juries not judges to make factual findings needed to raise a defendant’s sentence. “Time and subsequent decisions have washed away the holdings” of the prior cases, Sotomayor wrote.
      Hurst marked the twelfth time that the Roberts Court has explicitly overruled a prior decision. Liberals will remember as the most important example the same-sex marriage decision, Obergfell v. Hodges (2015). For the 5-4 majority, Justice Anthony M. Kennedy explained how the logic of a 1972 decision refusing to recognize same-sex marriages had been undermined by a succession of rulings recognizing gay rights.
      In other decisions, however, the Roberts Court conservatives have run roughshod over precedents with little if any special justification — notably, the campaign finance ruling in Citizens United v. Federal Election Commission (2010) and the Second Amendment decision later that year in McDonald v. Chicago. At his confirmation hearing, Roberts acknowledged that overturning precedents causes “a shock” to the legal system. From all that appeared in last week’s arguments, public employee unions need to brace themselves for such a shock before the justices wrap up this spring.

Sunday, January 10, 2016

In New Rule, a "Proportional" Search for Truth

      In his best-selling book A Civil Action, author Jonathan Harr tells the dramatic story of how the residents of Woburn, Mass., won seven-figure settlements from two corporate defendants for dumping toxic chemicals into the town’s water supply. The book and the 1998 film adaptation show how the embattled plaintiffs lawyer, Jan Schlichtmann, used the pretrial process known as discovery to document the dumping and link it to a spike in cancers in the town.
      The pretrial discovery was critical to the plaintiffs’ case, but the entrenched resistance from the corporate lawyers made it both time-consuming and expensive. Eventually, the costs forced Schlichtmann to settle the case against one of the companies for $1 million and then immediately invest the proceeds in litigating the case against the major defendant, W.R. Grace & Co. In the end, financial considerations forced Schlichtmann to accept a lower-than-expected settlement of $8 million from the Grace company, and he himself was forced to file for bankruptcy.
      The story differs from the dominant critique of the discovery process propagated by business interests and the corporate bar. In their telling, plaintiffs’ lawyers bombard business defendants with bushel-basket requests for information difficult and expensive to track down and often of little relevance to the case at hand. Business groups such as the U.S. Chamber of Commerce’s Institute for Legal Reform argue that discovery “abuse” drives up the cost of litigation and often forces corporate defendants to settle questionable cases to cap their expenses.
      From either perspective, a new rule for federal courts aimed at controlling discovery and touted by Chief Justice John G. Roberts Jr. in his annual report on the federal judiciary seems on the surface both sensible and salutary. The new rule allows discovery by either side only if the information or documents sought are “proportional to the needs of the case.”
      In applying this proportionality principle, a judge is to consider “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”
      The new rule, the latest in a continuing series of tweaks to the discovery rule first adopted for federal courts in 1938, went into effect in December after Congress failed to object to changes that the court submitted for review in April. Roberts called the change “a major stride toward a better federal court system.” The new language, he said, “make[s] express the obligation of judges and lawyers to work cooperatively in controlling the expense and time demands of litigation.”
      Outside reviews of the changes were less enthusiastic. In his story on the new rules, the New York Times Supreme Court correspondent Adam Liptak collected criticisms from several prominent law professors. Arthur Miller, a civil procedure expert at New York University Law School, warned that the provision “will be used to restrict a citizen’s access to the information that often is critical to establishing a grievance, whether it be a civil rights claim or an economic or personal injury claim.”
      Despite Roberts’ enthusiastic description of the new rule as “a big deal,” the proportionality principle actually dates back to 1983. But the new rule is seen as significant because it moves the proportionality requirement from a provision limiting discovery to an earlier provision defining the scope of discovery.
      Even without that change, judges in the past few years have invoked proportionality in discovery cases more frequently than before, according to a law review article published in 2014 co-authored by University of Oklahoma law professor Steven Gensler and federal judge Lee Rosenthal. Gensler and Rosenthal found increased citations to proportionality following a widely noted conference on civil litigation held at Duke University Law School in 2010.
      Duke’s role in the gestation of the new rule stirred controversy because the school’s Center for Judicial Studies is funded in part by such major corporations as GE, Pfizer, and ExxonMobil. Duke sponsored an invitation-only conference on implementation of the rule in December.
      In their article, Gensler and Rosenthal, a federal judge in Houston named to the bench by President George H.W. Bush, acknowledged practical difficulties in applying the then-pending rule change but voiced confidence in judges’ abilities to use it to better control the discovery process. Rosenthal previously served under an appointment from Roberts as chair of the Judicial Conference’s Advisory Committee on Rules and Procedure.
      Linda Mullenix, a prominent civil procedure expert at the University of Texas Law School, was more critical of the new rule in a draft paper published in late 2014. Mullenix depicted the rule as the result of “aggressive lobbying efforts by the corporate community.” She called the advisory committee’s repeated concerns about the cost of discovery in explaining the new rule “evidence of the corporate community’s pervasive influence on the rulemaking process.”
      In a federal court system with more than 700 life-tenured trial-level judges, the application of the new rule is likely to vary widely. Roberts’ hopes and the critics’ fears may both prove to be exaggerated. But Mullenix rightly raises the question whether the rule will limit the courts’ search for truth. “It seems an odd affair,” she wrote, “for rulemakers to artificially constraint\ the pursuit of truth by reducing the permissible scope of such a search to a multi-factor test to be subjectively balanced by a judicial officer.”

Sunday, January 3, 2016

In U.S., Justice Kennedy Was "Person of Year"

      The German chancellor Angela Markel won Time magazine’s designation as “Person of the Year” for 2015 on the strength of her robust stance on such issues as Europe’s economic problems and the Syrian refugee crisis. Among seven other finalists, three possible selections were Americans: “Black Lives Matter” activists, the newly transitioned transgender Caitlyn Jenner, and the Republican presidential candidate Donald Trump.
      If limited to the United States, however, the leading candidate should have been Supreme Court Justice Anthony M. Kennedy, who played a pivotal role in a term of memorable decisions that tilted left in part because of Kennedy’s votes in several major cases. Most importantly, Kennedy capped a long record of supporting gay rights by authoring the landmark opinion in Obergefell v. Hodges that guarantees marriage rights for same-sex couples nationwide. The ruling seems likely to bring about a lasting transformation in the legal rights and social acceptance for gays and lesbians.
      Kennedy had signaled his support for gay rights as early as the 1980s when, as a federal appeals court judge, he criticized the Supreme Court decision that upheld laws making gay sex a crime. Once on the court, Kennedy wrote the 2003 decision in Lawrence v. Texas that overturned the previous ruling and declared anti-sodomy laws unconstitutional.
      In his opinion, Kennedy eloquently confirmed that gay men and lesbians “are entitled to respect for their private lives.” Dissenting, Justice Antonin Scalia warned that the decision could lead to a judicial ruling to permit same-sex marriage. And, for once, Scalia was right. By refusing to allow moral disapproval to justify anti-gay laws, the decision led all but inevitably to a similar ruling to strike down laws preventing gay and lesbian couples from marrying.
      Kennedy spoke for the 5-4 majority in United States v. Windsor (2013) in striking down the so-called Defense of Marriage Act, which barred federal marriage-based benefits to same-sex couples even if legally married in their home states. Again, the court rejected moral disapproval as a basis for discriminating against gay men or lesbians. Windsor set the stage for a quick and all but unanimous succession of federal court rulings that rejected the arguments opponents offered for banning same-sex marriage.
      In Obergefell, Kennedy again led a 5-4 majority in completing the move to marriage equality. In the central part of the decision, he stressed the importance of family to individuals and to society. “[I]t demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society,” Kennedy wrote. He noted as well that the marriage bans imposed a “stigma” on the children being raised in same-sex families.
      The justices’ deliberations in the case were private, of course. The details will emerge, if ever, only when and if the justices’ papers are made public years from now. What is known today is that Kennedy and the four liberal justices — Ginsburg, Breyer, Sotomayor, and Kagan — were unable to persuade the four conservatives, including Chief Justice John G. Roberts.
      Faced with a similar turning point 60 years earlier, Chief Justice Earl Warren famously forged the Supreme Court’s unanimous decision in Brown v. Board of Education (1954) to strike down racial segregation. Opponents resisted and defied the decision, but the ruling is now universally praised.
      The marriage ruling is provoking resistance, and legal questions remain about religious freedom rights of public officials or private individuals to express their disapproval of same-sex marriage. But the resistance by county clerks such as Kentucky’s Kim Davis seems destined to fade away, sooner rather than later. And the calls by some Republican presidential candidates to overturn the decision seem unlikely to bear fruit.
      Kennedy visibly wielded influence in a second major civil rights-related decision. He spoke for the same 5-4 majority in a ruling that upheld a broad interpretation of the Fair Housing Act used to combat residential segregation. The ruling in Texas Department of Housing and Community Affairs v. Inclusive Communities Project allows the law to be enforced against policies by local housing authorities or private developers that have a “disparate impact” on minorities. The court’s conservative bloc had seemed poised to weaken the law by limiting it to intentional discrimination. Kennedy surprised many observers by siding instead with the liberal bloc.
      In another surprise of sorts, Kennedy joined with Roberts and the liberals in a 6-3 decision that safeguarded President Obama’s health care reform from a potentially devastating challenge. The ruling in King v. Burwell upheld Obamacare subsidies for customers of health care exchanges nationwide even in those states that refused to create the new insurance marketplaces. Kennedy’s vote was unexpected to some extent because of his vote in an earlier decision to rule the entire Affordable Care Act unconstitutional.
      Credit for the gay marriage ruling extends to many others besides Kennedy. Just as Thurgood Marshall played a vital role in the desegregation decision, credit belongs to Evan Wolfson, who laid out the argument for same-sex marriage while a Harvard Law School student in the early 1980s. Beginning in the 1990s, Wolfson then helped forge the combined legal and political strategy that won marriage rights state by state before the Supreme Court’s decision.
      Many other lawyers played a part as well. And so too did the many gay and lesbian couples who demonstrated in court and to the wider public that their lives together were worthy of legal respect. In the end, however, the decision came down to one vote, and that vote was Kennedy’s.