Saturday, July 16, 2016

On Trump, ACLU Hits Target That Ginsburg Missed

      Credit the American Civil Liberties Union for taking the debate about Donald Trump in the direction that Supreme Court Justice Ruth Bader Ginsburg might have been able to if she had gone beyond off-hand comments to a succession of three reporters. In a comprehensive, 27-page report released on Thursday [July 11], the ACLU makes the case that Trump’s stated policies in six major areas would violate the U.S. Constitution, U.S. law, or international law, or all three. Coincidentally, the report came just as Ginsburg was saying in a written statement that her comments were “ill-advised.”
      The ACLU report stresses at the outset that the organization does not endorse, and never has endorsed, candidates for public office. The ACLU does law, not politics. The report is thus heavy with legal citations and essentially void of political analysis and gains in credibility thereby. No one will be surprised that Trump’s views on abortion, immigration, libel, and torture run afoul of law, but the ACLU does a great service by proving it, point by point by point by point.
      As a justice, Ginsburg does law, not politics, but her comments about Trump were strictly political and void of legal analysis. In her most extended remarks, to CNN’s Joan Biskupic, she called Trump a “faker,” faulted him for “ego,” and accused him of “no consistency.” Only once did she touch on the issue of Trump’s lack of respect for judicial independence. “For the country, it could be four years,” she told the New York Times’s Adam Liptak. “For the court, it could be — I don’t even want to contemplate that.”
      The comments predictably provoked Trump, who tweeted that Ginsburg was “a disgrace to the court” and suggested that she had “lost it.” In nonpolitical vein, many in political and legal worlds argued that Ginsburg had breached the ethical rule that judges should steer clear of politics. Two liberal newspapers, theNew York Times itself and the Washington Post, editorially criticized her. The Times aptly described her remarks as “political punditry” and “time-calling.”
      Some on the legal left, however, suggested that Ginsburg had the right and even the duty to speak out. Ginsburg was entitled to her surely well known opinions, they said, and it was good to unmask the fiction of judges as political ciphers. Trump’s candidacy poses a danger that demands speaking out and condemns silence. One writer, Slate’s Mark Joseph Stern argued that Ginsburg was justified because of the “menace” that Trump poses for the country.
      Some continued to defend her even after the justice herself voiced her regrets. “Judges should avoid commenting on a candidate for public office,” she said. “In the future, I will be more circumspect.”
      The ACLU report has no name-calling, no punditry, only legal analysis, issue by issue. It begins by noting Trump’s call for “a complete and total ban” on Muslims entering the country, as immigrants or tourists. The report infers that Trump has in mind the federal law authorizing the president to suspend entry of a “class of aliens.” But it argues that the law probably does not go that far and would violate the Constitution —  the Establishment Clause among other provisions — if a president tried to stretch it that far.
      In like vein, the report argues that Trump’s proposal for blanket surveillance and registration of Muslims in the United States would be unconstitutional, a violation of equal protection as well as the First Amendment’s free exercise and free speech clauses. Apart from the Constitution, the Muslim “database” would surely violate federal privacy statutes, the report adds.
      The report notes Trump’s endorsement in May 2015, before his presidential campaign, of legislation to allow the National Security Agency to collect “bulk metadata” of telephone calls by Americans. Congress changed the law less than two weeks later to prohibit collecting Americans’ call records in bulk, but Trump appears not to have changed his views. In an interview on MSNBC in November, Trump said in regard to telephone surveillance that he would “err on the side of security.” The report repeats the ACLU’s position that such surveillance is both unconstitutional and illegal.
      Trump has advocated waterboarding and other forms of torture, the report notes, seemingly reveling in the practice. He has said that he “love[s] waterboarding” and approves of the practice because “they deserve it anyway, for what they’re doing.” The Bush administration authorized waterboarding and other “enhanced interrogation techniques” under a Justice Department memorandum that was later repudiated. As the ACLU report states bluntly, torture and “other forms of cruel, inhuman, or degrading treatment” are “banned” by the U.S. Constitution, domestic law, and international law--with no “deviations” permitted.
      On domestic issues, Trump has called for revising libel laws “so that we can sue [media outlets] and win money.” But there is no federal libel law — nor can the president write one without Congress — and any change would run into the Supreme Court’s famous New York Times v. Sullivan ruling and subsequent line of decisions.
      Trump stirred controversy in March by suggesting that women need to be “punished” for abortions. He tried to walk back from the stance while still calling for punishing doctors. Whatever his position, the ACLU report correctly notes that the Constitution “squarely prohibits” either the federal or state governments from prohibiting abortion.
      Unfortunately, the ACLU report got little attention in a week dominated by political events at home and terrorism abroad. Had Ginsburg given a formal speech or interview to question the legal basis of some of Trump’s proposals, it would have made a contribution worthy of and possibly within the ethical rules of a Supreme Court justice. She didn’t. Credit the ACLU for doing it instead.

Sunday, July 10, 2016

Police Reforms Needed to Make Black Lives Matter

      The saturation coverage of the horror of Dallas has understandably taken precedence over follow-ups of the week’s earlier tragedies: the “police-involved” shootings of young African American men in Baton Rouge and a Minneapolis suburb. The bigger story is the unnecessary killing of young black men at the hands of police and the significant racial disparity in police use of force against African Americans.
      By the numbers, police use force in a tiny fraction of encounters with civilians, roughly 1 percent to 2 percent. But a new study by a racial justice-oriented think tank provides some confirmation of the racial disparity in police use of force that black Americans experience as a daily fact of life and that too many white Americans refuse to acknowledge.
      The study by the Center for Police Equity found that police use force against African Americans more than three times as often as they do against whites. Specifically, the mean rate for black residents is 273 instances per 100,000 residents in the 19 communities included in the two-year study: 3.6 times greater than the mean rate of 76 instances per 100,000 white residents. The mean rates for Hispanics were just below those for whites and the mean rates for Asians were very low: 15 instances per 100,000 residents.
      The disparity is significant but somewhat smaller for use of force in arrests. The study calculated 46 instances of use of force per 1,000 arrests of African Americans, about 30 percent higher than the average for whites: 36 instances per 1,000 arrests. Paradoxically, however, the study found the disparity reversed for arrests of violent offenses: force was 40 percent more likely to be used when arresting a white than a black for a so-called Category I offense.
      Arguably, that paradox substantiates rather than contradicts the suggestion of an implicit racial bias on the part of police forces nationwide. The disparity emerges not when dealing with serious criminals, but with less serious law violators such as Alton Sterling, killed Tuesday for selling loose CDs on a Baton Rouge, La., street corner, and Philando Castile, killed Wednesday for driving with a broken tail light in St. Anthony, Minn.
      Both deaths are officially under investigation, even after the cellphone videos have gone viral. Whatever the results of those investigations, however, Minnesota’s white governor, Mark Dayton, was undoubtedly right when he said that Castile would not have been killed as he reached for his ID, not his gun, if he had been white.
      In another seemingly paradoxical result, the study found police more likely to use lethal force against whites than against blacks, but nonlethal force — hands and body, pepper spray, tasers, canines — was more likely to be employed against blacks than against whites. Overall, the study calculated a comparison based on the count and the severity that found use of force 3.8 times greater for blacks than for whites.
      By the numbers, police-civilian encounters are far more likely to be fatal for civilians than for cops. The Washington Post’s comprehensive compilation counted 491 civilian deaths for the first six months of 2016, up 6 percent from the 465 in the same period in 2015. The Post’s numbers apparently do not include Sterling or Castile.
      Add one more: Micah Xavier Johnson, the black assassin who killed five officers and wounded seven others in downtown Dallas, before being taken out by a police-guided robot-bomb. Johnson, a 25-year-old Army veteran, was motivated, according to his words as reported by Dallas police, by hatred of whites, and especially white police officers.
      The five deaths were reported in the Post on Friday [July 8] on the front page, just above the previously planned, long takeout headlined, “Deadly shootings by police on the rise in 2016.” In the web version, the Post also included a table showing 20 police officers shot and killed in the first six months of 2016, up 25 percent from the 16 counted in the same period in 2015.
      The deaths in Dallas bring that number to 25 for 2016. The calculated nature of Johnson’s killings, and his explicit racial motivation, make the officers’ deaths more than a tragedy but an outrage. But assassinations cannot be anticipated nor assuredly prevented. No policy recommendations emerge from the horror in Dallas beyond Sgt. Phil Esterhaus’s daily roll-call admonition on Hill Street Blues: “Be careful out there.”
      There are policies, however, to deal with the problem of police use of force and the racial disparities. The Dallas police department is taking credit for training officers in “de-escalation” well before other cities, training that might have averted the deaths in Baton Rouge and St. Anthon and perhaps many others. Police forces also need to be more diverse, more representative of the communities they serve, and more sensitive to the cultural and social traditions of the people they serve.
      After Dallas, the dominant theme in news stories and commentary was, “Nation on edge.” Police feel beleaguered, but so do many, many black Americans. Like the Dallas officers’ deaths, Sterling’s and Castile’s death are more than a tragedy but an outrage. Perhaps these black lives can matter if they help build pressure for police to make meaningful changes in their policies and practices to protect and serve all, without regard to race. So far, as the Washington Post observed editorially, the moves in that direction have been “grievously inadequate.”

Sunday, July 3, 2016

'Stubborn' Facts, 'Stable' Law Shaped Kennedy's Votes

      Facts, it is said, are stubborn things. And when John Adams quoted that adage as the defense lawyer in the Boston Massacre trial, he added that the law is no less stable than facts.
      With the Supreme Court’s term now ended, the major question among Court watchers has been how to explain Justice Anthony M. Kennedy’s pivotal votes in the two stunning liberal victories on abortion and affirmative action. The experts have speculated that Kennedy “evolved” on the two issues perhaps to respond to political conditions outside the court and perhaps to safeguard his legacy.
      There is a simpler explanation, however, for Kennedy’s decision to uphold the University of Texas’s use of race in admissions and to strike down Texas’s regulations for abortion clinics. Based on the evidence, UT’s policies passed constitutional muster under Supreme Court precedents, but the abortion clinic regulations did not.
      In the abortion case, Whole Woman’s Health v. Hellerstedt, Kennedy had joined in establishing the governing precedent as one of the three authors of the jointly signed plurality opinion in Planned Parenthood v. Casey. The centrist trio Sandra Day O’Connor, David H. Souter, and Kennedy established the “undue burden” standard for determining the constitutionality of laws regulating abortion procedures. “Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right,” the opinion declared.
      The evidence in a four-day trial before a Republican-appointed judge showed that the regulations imposed by the Texas law known as H.B. 2 fit that definition. The supposed health regulations were shown to be unnecessary and the regulations were convincingly linked to a reduction by half in the number of abortion clinics in the state.
      The law, now struck down in its entirety, required that physicians serving the clinics have “admitting privileges” at a hospital within the area, ostensibly to facilitate an emergency transfer to a hospital if a patient suffers complications during an abortion. The law was unnecessary from the get-go because clinics were already required to have written protocols for such transfers.
      The law was doubly unnecessary, however, because, as Justice Stephen G. Breyer wrote in the decision, complications are rare in abortions and rarely require hospital admissions. The very few that do occur almost always arise at home days later. When Texas’s lawyer was asked at argument, he could not give Breyer a single instance when a woman had suffered complications at a Texas clinic requiring admission to a hospital.
      In its other major provision, H.B. 2 required that abortion clinics meet the hospital-like staffing and building standards required for so-called ambulatory surgical centers. In the decision, Breyer noted that the district court judge had made “well supported” findings that the costly requirements did not benefit and were not necessary. Abortions are safe and, as Breyer noted, safer than other procedures such as colonoscopies that Texas allows to be performed outside hospitals or surgical centers.
      Kennedy joined with Breyer and the three other liberal justices to produce a five-justice majority to strike the law down. Tellingly, the three dissenting justices at the Supreme Court — Chief Justice John G. Roberts and associate justices Samuel A. Alito Jr. and Clarence Thomas — countered the majority not on the merits but on mind-numbingly procedural grounds. Alito came close to a substantive argument only toward the end of a 44-page dissent by suggesting that H.B. 2 was not solely to blame for the closure of more than half of the state’s clinics.
      The facts in the affirmative action case, Fisher v. University of Texasare admittedly murkier. And as the author of the 4-3 majority opinion Kennedy was applying a precedent from which he had dissented: the 2003 decision in Grutter v. Bollinger to uphold limited use of race in admissions at public colleges and universities. Grutter validated as “compelling” a school’s interest in a diverse student body and allowed limited use of race in a “holistic” consideration of applicants if the policies were necessary and narrowly tailored.
      In challenging UT’s policies, attorneys for the unsuccessful and unqualified white applicant argued in part that the policies were unnecessary. The school was admitting enough minority students, they argued, under the so-called Top Ten Percent Plan, which supposedly guaranteed admission to students graduating from a Texas high school in the top 10 percent of their class. But the evidence showed that in fact African American and Hispanic enrollment had stagnated, below what the school considered the “critical mass” needed to serve the interest in diversity and to guard against “racial isolation” for minority students.
      In his dissent for the three conservatives, Alito demanded that the university provide more specifics. Kennedy rightly countered that that sounded like an impermissible quota. Alito also plausibly accused Kennedy of going back on his earlier opinion in Fisher I to lower the deference for universities on race-conscious admissions. But with further review of the evidence, Kennedy was satisfied.
      It bears repeating that Justice Antonin Scalia’s assumed votes would not have changed the outcome in either case. Kennedy voted, however, after reviewing the facts and the law, not on the basis of preconvictions. As Adams said, “our wishes, our inclinations, or the dictates of our passions . . . cannot alter the state of facts and evidence.” 

Monday, June 27, 2016

Liberal Rulings End 'Strange and Ill-Fated' Term

      A Supreme Court term that began with high hopes among conservatives and high anxiety among liberals has ended with stunning victories for progressives on abortion rights and affirmative action and no major outright wins for conservatives.
      Scattered among the rest of the term’s 81 decisions were a pair of inconclusive setbacks for the Obama administration on Obamacare and immigration and a mixed plateful of other decisions on criminal law, civil litigation, and other topics.
      The court’s conservative bloc suffered a mortal blow when Justice Antonin Scalia died on Feb. 13 with fewer than one-fourth of the term’s cases decided. But Justice Anthony M. Kennedy joined with the court’s four liberal justices to deal the conservatives unexpected defeats in a pair of Texas cases on affirmative action and abortion on the two final decision days of the term.
      Before Scalia’s death, conservatives had high and realistic hopes of winning both cases with decisions that would narrow the use of race in college admissions and fortify states’ power to regulate abortion clinics. Instead, Kennedy’s shift on the two topics produced decisions that provide a roadmap for colleges to follow in race-conscious admissions and appear to endanger abortion clinic regulations on the books in 25 other states.
      The three remaining conservatives — Chief Justice John G. Roberts Jr. and associate justices Clarence Thomas and Samuel A. Alito Jr. — were left to dissent in both decisions. Alito wrote long and impassioned dissents in each of the cases, which he emphasized by summarizing at length from the bench.
      Scalia would certainly have joined the dissenters in both cases, but his vote would not have affected the outcome in either. In the abortion case, Whole Woman’s Health v. Hellerstedt, the vote would have been 5-4 instead of 5-3. Scalia’s vote in Fisher v. University of Texas would have changed the 4-3 decision to a 4-4 tie that would still have upheld UT’s admissions policies but without setting a national precedent.
      The conservatives’ biggest victory for the term came on a 4-4 tie in the challenge by Texas and 25 other states to the Obama administration’s policy of protecting an estimated 5 million unauthorized immigrants from deportation. The justices were split sharply along conservative-liberal lines when the case, United States v. Texas, was argued in April. The tie vote upheld the decision by the federal appeals court in Texas upholding a lower court injunction blocking the administration policy.
      The justices were similarly divided along the usual ideological lines in arguments in the Obamacare case, Zubik v. Burwell. Religious schools and charitable groups had raised religious freedom claims in challenging the mandate to include cost-free coverage for contraceptives in their health plans for students and employees. The court resolved the impasse with an 8-0 decision sending the cases back to federal appeals courts with instructions to give the opposing sides time to try to reach a mutually acceptable accommodation.
      Conservatives were on the losing side, however, of another of the term’s inconclusive 4-4 ties. The court’s tie vote in Friedrichs v. California Teachers Association turned back a conservative-backed effort to block public employee unions from requiring nonmembers to pay a so-called agency fee to help cover the unions’ costs in representing all employees in collective bargaining and grievance procedures. Scalia’s vote likely would have favored the dissident teachers in the case and dealt a stunning blow to the finances of public employee unions nationwide.
      Conservatives were also hoping for a win in a case brought by some Republican voters in Texas to change the rules for equalizing populations in state legislative districts. The plaintiffs in Evenwel v. Abbott wanted to count voter-eligible citizens instead of total population, the standard practice under existing law. The proposed rule was seen as likely to benefit Republicans and disadvantage Democrats. The court refused in an 8-0 decision to require states to count only eligible voters, but two conservatives, Thomas and Alito, emphasized in separate opinions that states were free to do so.
      As in previous terms, a nominally conservative court favored criminal defendants and suspects in many of its decisions. Out of 22 decisions in argued cases, 12 favored defendants, nine favored the government, and one was mixed. The mixed decision in Birchfield v. North Dakota allows police to administer breath tests but not blood tests to drunken-driving suspects without a search warrant. Police scored a significant win in another search case, Utah v. Strieff, which allowed the use of evidence found after a warrant check on a suspect following an unlawful stop.
      In another major criminal case, however, the court extended on a 6-3 vote before Scalia’s death the impact of an earlier decision limiting life-without-parole sentences for juvenile murderers. The decision in Montgomery v. Louisiana to apply an earlier decision retroactively held out the possibility of releasing more than 1,000 prisoners serving life-without-parole terms for murders committed before age 18.
      Among other criminal cases, the court in Hurst v. Florida struck down Florida’s death penalty law because it allowed judges to make factual findings necessary to impose a death sentence. In another capital case, the court in Foster v. Chatham gave the African American defendant a new opportunity to overturn the verdict because of racial discrimination in jury selection. 
      The final decision of the term also favored criminal defendants: specifically, gift-taking public officials. The 8-0 ruling in McDonnell v. United States set aside the public corruption conviction the feds obtained against former Virginia governor Bob McDonnell for accepting an estimated $175,000 in gifts and gratuities from a businessman seeking favorable consideration from state agencies. In his opinion for the court, Roberts described the gift-taking as “tawdry,” but called the prosecution’s theory overbroad. The government gets another chance to show that McDonnell’s efforts in the businessman’s behalf amounted to “official acts” for purposes of the federal anti-graft laws, but the opinion seems tilted the opposite way.
      Business interests and legal conservatives were left with mixed decisions in areas where the Roberts Court has generally been friendly to them. In one decision, the court in RJR Nabisco v. European Community blocked European countries from using the federal anti-racketeering law to seek civil damages from the food and tobacco conglomerate for an alleged money laundering scheme to boost cigarette sales on the Continent. But in other cases the court allowed some use of statistical evidence to allow class actions to go forward (Tyson Foods v. Bouaphakeo) and blocked one defense tactic to neutralize class actions by settling with the named plaintiff (Campbell-Ewald Co. v. Gomez).
      The court ended the term with a vacant seat at the far right with no prospects for the empty chair to be filled before the new term begins on the traditional first Monday in October. President Obama’s nomination of federal judge Merrick Garland to succeed Scalia remains hostage to Senate Republicans’ unprecedented decision to keep the vacancy open until after the presidential election.
      The Washington Post’s veteran Supreme Court correspondent Robert Barnes captured the term well in his weekend preview of the final decision day by calling the term “strange and ill-fated.” The court added three cases for the new term in orders released on Monday, but the total number accepted so far — 21 — is low by historical standards. With only eight justices in place, the new term seems quite likely to be strange as well, whatever the judicial fates may be.

Sunday, June 26, 2016

Police Gains Come at Fourth Amendment's Expense

      Score two significant wins for police from the Supreme Court last week and two setbacks for the Fourth Amendment and individual privacy.
      In the first of the decisions, the court gave police a fishing license to search just about anyone on the street as long as there is an outstanding arrest warrant for any offense as trivial as an unpaid parking ticket. In the second, police gained a half victory in drunken-driving cases by getting permission to administer a breathalyzer test without a search warrant following a lawful arrest.
      Both decisions were closely divided, with the court’s conservatives joined in each by Justice Stephen G. Breyer, a Fourth Amendment pragmatist who often parts ways with his liberal colleagues in search cases. Leading the dissenters in each was Justice Sonia Sotomayor, whose experience as an assistant district attorney in New York City left her with a healthy distrust of police and a heightened regard for individual rights.
      Sotomayor drew widespread attention with an impassioned dissent in the first case, Utah v. Strieff. The majority in the 5-3 ruling [June 20] blinked at the concededly unlawful stop that a Salt Lake City detective made in a drug investigation back in December 2006. As Sotomayor made clear, Justice Clarence Thomas’s opinion for the majority ignores all that the country has learned in the post-Ferguson era about the harm that police can inflict on ordinary citizens when they disregard constitutional limits on law enforcement.
      Detective Douglas Fackrell spotted Edward Strieff as he left a house the detective had under surveillance based on an anonymous tip. Fackrell tailed Strieff to a convenience store, stopped him, asked for identification, and radioed back to the station for a warrant check. Strieff in fact had an outstanding warrant for a traffic offense that was never specified in the court record.
      Fackrell placed Strieff under arrest, conducted what the courts call a “search incident to arrest,” and found some methamphetamine and drug paraphernalia. Strieff moved to suppress the evidence as the fruit of an unlawful stop. Unsuccessful in the lower courts, Strieff won a unanimous decision from the Utah Supreme Court, which rejected the state’s argument that the discovery of the arrest warrant “attenuated” the connection between the Fourth Amendment-violating stop and the search.
      In Thomas’s telling, Fackrell had been guilty of nothing more than “an isolated instance of negligence” and the discovery of the warrant “broke the causal chain” between the unconstitutional stop and the discovery of the evidence. He saw “no indication . . . of any systemic or recurrent or police misconduct.
      Thomas may have been right in the individual case, but Sotomayor countered by bluntly depicting the ruling as an open invitation to police misconduct. “This case,” she wrote, “allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants — even if you are doing nothing wrong.”
      Far from an isolated case, Sotomayor emphasized that law enforcement databases have more than 7.8 million outstanding warrants on file and police manuals instruct officers to run warrant checks after any stop, lawful or not, in hopes of discovering a warrant that will give grounds for a search. Sotomayor acknowledged that Strieff is white, but aptly noted that “people of color” are “disproportionate victims” of the kind of suspicionless stop.
      The majority’s ruling, Sotomayor added, “tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time.” Justice Ruth Bader Ginsburg joined her opinion, except for what Sotomayor called a final “personal” section. As the third dissenter, Justice Elena Kagan similarly mocked Thomas’s exoneration of Fackrell’s conduct. The stop, she said, was “far from a Barney Fife-type mishap,” but “a calculated decision.”
      The Fourth Amendment took a less serious beating three days later in a decision that allows police to dispense with obtaining a search warrant before requiring a drunken-driving suspect to submit to a breathalyzer test. Justice Samuel A. Alito’s seeming compromise opinion in Birchfield v. North Dakota [June 23] does require a search warrant before a more intrusive blood draw. But it goes on to uphold laws that allow states to punish drivers who refuse the breath test not only by suspending their driver’s licenses but also by prosecuting them criminally.
      Again, Sotomayor was joined in a strong dissent by Ginsburg, though not by Kagan. As Sotomayor pointed out, police ordinarily perform a breathalyzer test not at roadside but back at the station. This “built-in window” allows time to obtain a warrant in the modern era of instantaneous communication, she said. That “small burden,” she said, was needed to make prevent the Fourth Amendment from becoming “an empty promise.”
      Somewhat confusingly, Thomas dissented from the opposite perspective. He argued that no search warrant was needed for the breath or blood test. But he complained that Alito’s justification of the breath test as a search incident to arrest distorts that doctrine. He argued instead that police could dispense with the warrant under a different doctrine: “exigent circumstances.” The court rejected that argument in a decision three years earlier, Missouri v. McNeely. As authority for his view, Thomas cited his lone dissent in that case.
      As Sotomayor pointed out in Strieff, the Fourth Amendment protects everyone: white, black, brown, yellow. But it protects only if courts enforce its provisions against police who find it an inconvenience all too easy at times to circumvent.

Sunday, June 19, 2016

Roberts' Blind Spot on Judicial Ethics

      Chief Justice John Roberts broke ranks with his conservative colleagues one year ago by writing the 5-4 decision to uphold judicial ethics rules prohibiting candidates for judicial office from direct solicitation of campaign contributions. Roberts wrote in Williams-Yulee v. Florida Bar (2015) that the state has a “vital” and “compelling” interest in preserving public confidence in the judiciary.
      Puzzlingly, however, Roberts seemed oblivious to that interest this month [June 9] in the Supreme Court’s latest case on judicial ethics. Roberts dissented from the 5-3 decision in Williams v. Pennsylvania that Pennsylvania’s former chief justice should have recused himself from ruling on a death row inmate’s post-conviction challenge.
      As Philadelphia district attorney 30 years earlier, Ronald Castille had made what the majority called the “critical” decision to seek the death penalty in the murder case against Terrance Williams. Roberts saw no need for Castille to step out of Williams’ latest attempt to get a new sentencing hearing even though Williams was directly challenging the conduct of the prosecutor’s office in the case.
      Roberts’ sense of judicial ethics was finely tuned in the campaign contribution case, but much less so in the new decision or in another recusal case seven years ago. Roberts had dissented in that case, Caperton v. A.T. Massey Coal Co. (2009), when a 5-4 majority rebuked a West Virginia Supreme Court justice for failing to step out of a case involving a big-money contributor to his successful election campaign.
      As chief justice of the United States, Roberts appears to recognize his need to serve as institutional spokesperson-in-chief for judicial independence and integrity. But he disserves that role by resisting any constitutional standards for judges to recuse themselves when their impartiality is rightly called into question.
      Writing for the majority in the Pennsylvania death penalty case, Justice Anthony M. Kennedy reasoned that Williams had a due process entitlement to a hearing before a tribunal with no risk of bias. Castille’s refusal to recuse himself — and leave the decision to his six state supreme court colleagues — created “an objective risk of actual bias,” Kennedy wrote in an opinion joined by the court’s four liberal justices.
      In the main dissent, Roberts found no need for Castille to recuse himself because he had no prior knowledge of the contested facts in Williams’ post-conviction challenge nor made any decision on the questions raised. Williams based his fifth post-conviction plea on evidence discovered long after his 1986 trial. Under Pennsylvania law, Williams had to show either that he could not have obtained the information earlier or that the government had prevented him from discovering the information. Castille “had not made up his mind” on that question, Roberts said.
      Roberts adopted almost willful blindness in taking that position. Castille ran for the state supreme court by boasting that he had sent 45 people to Pennsylvania’s death row — Williams one of them. In the new petition, Williams accuses the trial prosecutor of misconduct by failing to disclose information helpful to his defense. A state judge sitting in effect as a habeas court agreed, barred Williams’ execution, and ordered a new sentencing hearing.
      State’s attorneys asked the Pennsylvania high court to overturn that decision. As Kennedy rightly wrote, “it would be difficult for a judge in [Castille’s] position not to view the [habeas] court’s findings as a criticism of his former office and, to some extent, of his own leadership and supervision as district attorney.” But Castille rejected a motion that he recuse himself. Instead, he wrote a concurring opinion that called Williams’ petition “frivolous,” criticized Williams’ attorneys for an “obstructionist anti-death penalty agenda,” and faulted the habeas court for having “lost sight of its role as a neutral judicial officer.”
      Castille’s bias was in plain view, but not to Roberts or the other dissenting justices: Samuel A. Alito Jr. and Clarence Thomas. The split in the case corresponds to the division in the earlier West Virginia decision. Roberts spoke for all four conservative dissenters in that case, with Kennedy writing for a majority that included the four liberal justices at the time.
      Roberts had a more realistic understanding of judicial ethics in the Florida campaign contribution case. A judicial candidate’s direct participation in fundraising, he wrote then, “creates the public appearance that the candidate will remember who says yes, and who says no.” The decision upheld ethics rules on the books in some 30 states. As one of the four dissenters, Kennedy argued that the solicitation ban violated candidates’ political speech rights.
      Roberts’ differing positions in the cases may be explained on federalism grounds, according to one leading expert on judicial ethics. Amanda Frost, a professor at American University’s Washington College of Law, notes that Roberts sided with states in each of the three decisions. Indeed, Roberts noted in the Pennsylvania case that many states have rules that would have required Castille to recuse himself.
      Roberts may also have been looking over his shoulder, Frost suggests, at the risk of creating recusal standards that could come back to haunt the justices themselves. The justices have steadfastly refused to explain their own recusal standards and have resisted any efforts in Congress to lay down rules. Whatever his reasons, Roberts does the judiciary no good by turning a blind eye to judicial bias — whether actual bias or even if only its appearance.

Sunday, June 12, 2016

From Texas, Two Dubious Death Cases for Justices

      Where would the Supreme Court find work but for Texas? The Lone Star state provided four of the biggest cases for the current term on such hot-button issues as abortion, affirmative action, immigration, and voting rights.
      One justice shy of a full complement, the court seems to be very slow in lining up cases for the term that will begin a few months from now on the traditional First Monday in October. But last week [June 6] the justices dug deep into a backlog of petitions to grant review in two death penalty cases from Texas (Buck v. Stephens; Moore v. Texas).
      Texas has been one of the leading states in death penalty cases for years and these two, like so many from Texas, seem strong candidates for reversal. In one, Texas’s Court of Criminal Appeals insisted on using an outdated standard for judging a death row inmate’s claim of intellectual disability instead of the standard adopted by the Supreme Court in 2014. In the other, the federal appeals court for Texas refused to let a death row inmate challenge the use of race-based testimony in his penalty-phase hearing.
      Duane Buck and Bobby James Moore are two of the 263 inmates currently on Texas’s death row. Lawyers from the Texas attorney general’s office have plenty of experience pulling out all stops to defend dubious death sentences — for example, in a notorious case from Houston where the defense lawyer slept during parts of the trial. These two cases stand out because doubts about their validity emerged at the state level long before they reached the U.S. Supreme Court.
      Buck was convicted of killing his former girlfriend and her male friend in 1995 and sentenced to death after a penalty-phase hearing that focused on the issue of future dangerousness. Psychologist Walter Quijano testified as a defense witness that Buck, who is African American, was unlikely to pose a future threat because the crime was not a random act of violence. On cross-examination, however, Quijano agreed with a prosecutor’s question that race, specifically being black, increases future dangerousness.
      As Austin’s American-Statesman recounts, the state attorney general’s office under now-Sen. John Cornyn had confessed error in half a dozen cases where Quijano had linked dangerousness to race while testifying for the prosecution. In Buck’s case, however, the state contends that the defense bears the onus for the race-based testimony because Buck’s own lawyer put him on the stand. The Fifth U.S. Circuit Court of Appeals refused to let Buck’s new lawyers reopen the case on the grounds of constitutionally ineffective representation at trial.
      Moore has spent 35 years on death row after his conviction for killing a store clerk during a robbery in 1980. He is seeking to take advantage of a pair of Supreme Court decisions. The court in 2002 barred execution of defendants with what is now called “intellectual disability” (Virginia v. Atkins) and then in 2014 prohibited states from using a fixed IQ test score to determine the issue (Hall v. Florida).
      A trial court found Moore intellectually disabled and thus ineligible for execution, but the Texas Court of Criminal Appeals — the state’s highest court for criminal cases — ruled that the lower court should have used the standard set out by the legislature back in 1992. Moore’s lawyers, backed by psychiatric and human rights organizations, argue that the use of outdated standards violates the Constitution.
      The justices have been slow to add cases for the coming term ever since Justice Antonin Scalia’s death in February. The Texas cases bring the number granted review so far to 13, much lower than usual at this time of the year. Arguments are likely in November in front of a court with one seat still vacant barring any change of heart by Senate Republicans to act on President Obama’s nomination of federal judge Merrick Garland to fill the seat.
      The Supreme Court’s current term has been a favorable one for critics of the death penalty with only one exception. In what proved to be his final opinion for the court, Scalia wrote the 8-1 decision in Kansas v. Carr upholding death sentences for two Kansas brothers in the so-called Wichita Massacre and for a third defendant in a separate Kansas case. Justice Sonia Sotomayor was the lone dissenter.
      A week earlier, however, the court in Hurst v. Florida struck down Florida’s previous death-penalty system because it allowed judges, instead of juries, to make factual findings necessary to impose a death sentence. Sotomayor wrote the decision, with Justice Samuel A. Alito Jr. the lone dissenter. Sotomayor had previously criticized Alabama for allowing judges in capital cases to overturn a jury’s recommendation not to impose a death sentence. In May the court sent an Alabama death case, Johnson v. Alabama, back to the state court to consider whether Hurst applies.
      Later in May, the court threw out, on a 7-1 vote, a Georgia death sentence because prosecutors had used peremptory challenges to keep blacks off the jury (Foster v. Chatham). And last week [June 9] the court gave a Pennsylvania death row inmate a new chance to challenge his death sentence because the state’s chief justice had refused to step out of the case despite his role as district attorney decades earlier in deciding to seek the death penalty (Williams v. Pennsylvania).
      None of these decisions suggests the court is on the verge of abolishing capital punishment, as Justices Stephen G. Breyer and Ruth Bader Ginsburg argued in dissent last term. Even with a conservative orientation, however, the court gives death penalty cases some extra scrutiny — an unfavorable omen for the so-called great state of Texas in the coming term.