Monday, January 31, 2011

Judging Alito: The Power of Positive Thinking

      Donald Specter had reached a critical point in his argument before the Supreme Court defending a lower federal court’s order to reduce prison overcrowding in California when Justice Samuel A. Alito Jr. interrupted. “This is going to have,” the justice began, but caught himself, “it seems likely to have an effect on public safety. And the experts can testify to whatever they want, but you know what? If this order goes into effect, we will see.”
      Specter, who directed the months-long trial for the Berkeley-based Prison Rights Project, knew that the three-judge court had actually concluded otherwise. “Well, based on the experience in the other jurisdictions,” Specter answered, “the court found we wouldn’t.”
      As noted at the time by law professor and Atlantic.com blogger Garrett Epps Jr., Alito’s comment during the Nov. 30 argument in Schwarzenegger v. Plata went against the normal rule requiring appellate courts, even the Supreme Court, to defer to findings by lower courts. But certitude has been Alito’s hallmark in what is now [Jan. 31] five years since he joined the high court.
      As predicted by Democrats and liberal groups who unsuccessfully tried to block his confirmation, Alito has staked out a position at the far right of the court’s ideological spectrum, in some respects even more ideologically pure than fellow conservatives Antonin Scalia and Clarence Thomas. In the process, Alito has become the court’s most powerful justice, enabling the conservative majority to shift American law to the right on such hot-button issues as abortion rights, campaign finance regulation, school integration and gun control.
      True, Justice Anthony M. Kennedy plays a pivotal role by siding at times with the conservative bloc led by Chief Justice John G. Roberts Jr. and at times with the four-justice liberal bloc. That is the same role played for more than two decades by Alito’s predecessor, Sandra Day O’Connor, who was famously depicted on the cover of the New York Times magazine as the most powerful woman in American government.
      Alito wields power not by swinging from side to side but by standing fast. He flexed power from his first months on the court, when he cast the deciding votes in three cases that had to be re-argued after O’Connor’s departure. With the other justices divided 4-4, Alito in effect became the one-man court in rulings in 2006 that weakened the “knock and announce” requirement for police, limited free-speech protections for public employees, and upheld Kansas’s death penalty statute.
      As the junior justice until Sonia Sotomayor’s appointment in 2010, Alito voted last in the justices’ private conferences, where cases are actually decided and opinions assigned. In that role, Alito literally cast the deciding votes in 5-4 rulings in the momentous 2006-2007 term that upheld a federal ban on a specific abortion procedure, weakened the McCain-Feingold campaign finance law, limited school districts’ ability to promote racial diversity, and restricted taxpayer suits against government subsidies to religious groups. He was also the tie-breaker in the well-known Lily Ledbetter case, which made it harder to bring pay discrimination suits in federal courts until Congress reversed the ruling by statute.
      All of those rulings went against the grain of what had seemed to be established precedent or dominant positions in lower courts. As in the prison crowding case, however, Alito is willing to find his own facts or make his own law. Writing for a 5-4 majority in an Arizona case challenging bilingual education in 2009, Alito found “documented, academic support” for the view that structured English immersion is the better educational technique, but failed to mention the dominant view among experts favoring dual-language instruction. In another 5-4 decision a year earlier striking down a minor part of the McCain-Feingold law, Alito relied in part on a lower court decision striking down a public campaign financing scheme without acknowledging that most federal court decisions have upheld such laws.
      Alito wears his conservatism on his sleeve both on and off the court. He has been speaker or guest at fundraisers for conservative organizations, such as the Manhattan Institute and American Spectator, the conservative weekly. When questioned at the American Spectator event in November 2010, Alito told a reporter for the left-wing blog ThinkProgress that his attendance was “not important.”
      On the bench, Alito poses hard-edged questions like those in the prison crowding case, almost always reflecting a conservative bent. Jan Crawford, CBS’s conservative-leaning Supreme Court correspondent, praised him in October as the court’s “most insightful and strategic questioner.” Less star-struck, First One @ One First blogger Mike Sacks described Alito in December as the conservatives’ “enforcer.”
      When Alito took the bench in January 2006, Martin Lederman, then a professor at Georgetown University Law Center, identified more than 30 Supreme Court rulings where his predecessor, O’Connor, had cast pivotal votes. In a beginning-of-term preview last fall, Lederman, back at Georgetown after serving in the Justice Department, listed some of the areas where Alito’s vote has already made a difference in bending or breaking past Supreme Court rulings. In apparently good health at age 60, Alito presumably has at least another decade to work with the conservative bloc to change some of the others.

Sunday, January 23, 2011

Smartphone Alert: Watch for Prying Eyes of Police

      Smartphone users, beware. All that personal information stored in the device’s innards is open to the prying eyes of the police if you happen to be arrested, in some jurisdictions for nothing more serious than a traffic violation.
      That’s the upshot of a decision by the California Supreme Court this month [Jan. 3], rejecting a drug defendant’s argument that police needed a warrant to search the cell phone taken from him at the time of his arrest. The ruling, at odds with an Ohio Supreme Court decision in a similar case, turns a blind eye to the privacy implications of allowing police to rummage through modern-day electronic gadgets without the protections the Framers put into the Fourth Amendment.
      The ruling stems from the arrest of Gregory Diaz by Ventura County sheriff’s deputies on April 25, 2007, after they monitored a police informant’s drug buy in a car driven by Diaz. At the station house, Diaz denied any knowledge of his passenger’s transaction with the supposed drug customer.
      Deputy Victor Fazio left the interrogation room and began poking around Diaz’s cell phone. There, he found a four-character text sent earlier in the day: “6 4 80.” Based on his experience, Fazio interpreted the message to mean “six tabs of Ecstasy for $80.”
      Confronted with the evidence, Diaz admitted his role in the drug deal. At trial, Diaz moved to suppress the evidence of the message and his later statement on the ground that Fazio’s search of the cell phone violated the Fourth Amendment’s warrant requirement. When the judge denied the motion, Diaz pleaded guilty. He was sentenced to probation, but continued to challenge the search on appeal.
      In its 5-2 decision upholding the search, the California Supreme Court mechanically applied precedents from the U.S. Supreme Court that permit a warrantless search of an arrestee’s person and the area within his immediate control. In the leading case, for example, police were held to have acted lawfully in taking a cigarette pack from a suspect’s pocket and searching it to find heroin capsules inside (United States v. Robinson, 1973).
      Writing for the majority in People v. Diaz, Justice Ming Chin acknowledged that a later case blocks police from searching items found outside the arrestee’s control — for example, a foot locker found in the trunk of the suspect’s car (United States v. Chadwick, 1977). But Chin saw only difficult judicial line-drawing ahead to evaluate the need for a warrant on “the character” of the item being searched instead of the location where it was found.
      The dissenting justices recognized the privacy implications of the ruling. “Never before has it been possible to carry so much personal or business information in one’s pocket or purse,” Justice Kathryn Mickle Werdegar wrote. “The potential impairment to privacy if arrestees’ mobile phones and handheld computers are treated like clothing or cigarette packages, fully searchable without probable cause or a warrant, is correspondingly great.”
      Any smartphone owner will readily agree. Two smartphone owners cannot get together without quickly showing off all the cool things they can do with their new gadget. The schedule app shows where you’ve been and where you’re going. The picture app shows who you’ve been with and when. The banking app shows your financial history along with all your bills. The e-trade app shows your investments.
      One does not have to be a drug dealer to think that the police ought not have free rein to delve through all that information unless they meet the safeguards established in the Fourth Amendment against general searches. The risk to privacy is underscored by the fact that, under an earlier Supreme Court decision, police can take someone into custody for even a minor traffic offense (Atwater v. Lago Vista, 2001).
      The Ohio Supreme Court showed greater respect for personal privacy in a 4-3 decision in 2009 to require a warrant before a cell phone search. A cell phone’s “ability to store large amounts of private data gives their users a reasonable and justifiable expectation of a higher level of privacy in the information they contain,” the court ruled in State v. Smith.
      The few federal court rulings on the issue are in conflict, with three out of four agreeing with the California court that no warrant is needed for a cell phone search. As smartphones become more and more common, the issue cries out for resolution by the Supreme Court. There, the majority’s customary pro-law enforcement orientation might be offset by other concerns. Justice Anthony M. Kennedy has shown sensitivity to privacy issues in other cases. And conservatives Antonin Scalia and Clarence Thomas provided critical votes in the 5-4 decision in 2001 requiring a warrant to use “thermal imaging” to search a home suspected of housing an indoor marijuana garden (Kyllo v. United States.)
      Back in the early 20th century, the Supreme Court found no need for a warrant for police to listen in on private telephone conversations (Olmstead v. United States, 1928). A court more attuned to privacy and technology ruled the other way in 1967 (Katz v. United States). Few people today would favor warrantless bugging of phone conversations. Future generations may view it as equally self-evident that the personal information stored on ubiquitous smartphones is equally worthy of constitutional protection.

Monday, January 17, 2011

Women’s Advances Uncertain Despite Three Lady Justices

      Sandra Day O’Connor, retired Supreme Court justice, could not contain her delight as she recalled her recent visit to her former courtroom.
      “It was absolutely incredible,” O’Connor said in a Dec. 13 program at the Kennedy Library in Boston. “On the far right was a woman. Boom, boom, boom. Near the middle was a woman. On the far left was a woman. Three of them. Now think of it. It was incredible.”
      O’Connor, the first woman to serve on the nation’s highest court, had good reason to think that Americans’ “image” of the court “has to change a little bit” with three female justices: Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. But image is only part of the struggle for equal rights and equal opportunities for women. Court decisions on women’s issues are part of the struggle too.
      On that score, women’s rights advocates have as much cause for concern as for celebration today, in the sixth year of the Roberts Court. The conservative majority fortified with the appointments of John G. Roberts Jr. as chief justice in September 2005 and Samuel A. Alito Jr. as O’Connor’s successor early in 2006 has shown no special awareness of the history of discrimination against women in law and society.
      “It’s been very disappointing,” says Marcia Greenberger, co-president of the National Women’s Law Center. “We have lost ground as a result of a number of narrowly divided decisions.”
      Women’s rights advocates were given additional cause for concern this month with published statements from Justice Antonin Scalia questioning the line of decisions since the 1970s that rely on the Fourteenth Amendment’s Equal Protection Clause to establish constitutional limits on sex discrimination. In an interview in California Lawyer, the monthly magazine of the California state bar, Scalia repeated his oft-stated contention that the amendment does not prohibit sex discrimination at all. “Nobody ever thought that’s what it meant,” Scalia said. “Nobody ever voted for that.”
      Scalia is unlikely to find a majority to reverse those decisions, but his vote — along with that of his originalist fellow traveler, Clarence Thomas — could help limit future decisions scrutinizing sex-based distinctions in the law. Roberts and Alito seem unlikely to overturn prior rulings, but their records ever since their days in the Reagan administration reflect no special solicitude for gender equality.
      In her list of unfavorable decisions, Greenberger starts with two, both from the first full term of the Roberts-Alito Court. In Gonzales v. Carhart, the court in April 2007 upheld a federal ban on the procedure that opponents have provocatively labeled “partial-birth abortions.” The 5-4 majority upheld the law even though it included no exception for procedures deemed necessary to protect the woman’s health. The court had required a health exception to any abortion regulations ever since Roe v. Wade first established a qualified right to abortion in 1973.
      A little over a month later, the court in Ledbetter v. Goodyear Tire and Rubber Co. blocked an Alabama woman from collecting several years’ worth of back pay for what a jury found to have been illegal sex discrimination. The alleged pay discrepancies dated back beyond the normal 180-day period for bringing a job discrimination claim under the federal Civil Rights Act, but Ledbetter argued they continued to affect her present salary. The 5-4 majority rejected the argument, adopting what Ginsburg called in her dissent a “cramped” interpretation that Congress overruled by statute two years later.
      Ginsburg, then the only woman on the court, emphasized her discontent with both decisions by reading her dissents from the bench. In the abortion case, Ginsburg faulted the majority (in an opinion by Justice Anthony M. Kennedy) for adopting what she called an “antiabortion shibboleth” that women suffer depression and a loss of self-esteem after an abortion. In his opinion, Kennedy conceded there were “no reliable data” to measure the supposed phenomenon.
      Greenberger acknowledges that the Roberts Court has had a mixed record in post-Ledebetter civil rights cases, with some helping plaintiffs, including women, others not. A series of rulings strengthening protections against retaliation for complaining about discrimination includes one brought by a Nashville woman, who accused her supervisor of sexual harassment during an internal investigation of a complaint by a coworker (Crawford v. Metropolitan Government of Nashville and Davidson County, 2008). On the other hand, women who often enter or re-enter the workforce at an advanced age after raising a family may be particularly disadvantaged by a decision raising the burden of proof for plaintiffs under the Age Discrimination in Employment Act (Gross v. FBL Financial Services, 2009).
      Like Ledbetter, Gross hurt civil rights plaintiffs without regard to gender. But as long as women do not enjoy equal rights in the workplace or elsewhere, their advance will be hampered by rulings that limit the force of laws aimed at prohibiting sex discrimination. Three female justices represent an advance for women, but grouped together in the court’s liberal bloc they need at least one vote from men in a conservative bloc that has shown less than strong interest in women’s equality up till now.

Monday, January 10, 2011

Reading the Constitution Through the Framers' Eyes

      John Roberts had been an academic star, an outstanding lawyer and a federal judge before becoming chief justice in 2005. Even so, nine months after taking office, Roberts went back to basics by re-reading the U.S. Constitution. “I thought I ought at least to pause for an hour or so and read the original document to see how close we got to what the Framers wrote,” Roberts said in a C-SPAN interview in July 2006.
      If it was good for the chief justice, then it probably did no harm, and may have done some good, for the newly elected U.S. House of Representatives to spend its first full business day last week [Jan. 6] for the first-ever reading of the Constitution from the floor of the chamber. In today’s hyper-partisan climate, the reading naturally provoked a dust-up over the Republican majority’s decision to delete parts that had been “superseded” by amendments — specifically, those sanctioning slavery. Democrats served a valuable purpose by underscoring what Roberts called “the taint” in the original charter and the implicit need for amendment from time to time.
      In addition to the Constitution, Roberts recommended reading the Federalist Papers, the revered but rarely read essays by Alexander Hamilton, James Madison, and John Jay that helped win ratification. With their long paragraphs and sometimes dense history, the papers — available here on the Library of Congress’s THOMAS Web site — are not quite as “easy to read” as Roberts depicted. But they are as important as the Constitution itself in understanding the Framers’ plan for the “more perfect union” the charter was written to establish.
      Together, the founding documents make plain what today’s right-wing constitutionalists seem to forget. The Framers saw an urgent need for a strong central government if the fledgling republic was to survive and prosper. The Articles of Confederation, in their view, had left the so-called United States open to foreign intrigue and domination, interstate conflict and rivalry, and domestic insurrection. Something had to be done.
      Read in that context, the Constitution is hardly the limited-government blueprint that modern-day conservatives picture. The “enumerated” powers given to Congress in Article I encompass virtually every function that a late 18th-century government would have carried out except for local police power.
      Anti-tax activists might want to note that first on the list are the powers “to lay and collect taxes,” “pay the debts and provide for the common defence and general welfare of the United States,” and “borrow money on the credit of the United States.” Yes, tax and spend were the Framers’ very first concerns for a government to replace the confederation, which had left the national government dependent on the states for fiscal survival.
      Immediately following was the power “to regulate commerce with foreign nations, and among the several states . . .” Like the fiscal powers, this new authority for the national government was deemed essential to what Hamilton later called “the management of our NATIONAL INTERESTS” (Federalist No. 23; all-caps in original). Many of the succeeding powers related as well to establishing a national economy, such as coining money, establishing a postal system, and creating a uniform bankruptcy system. That last power implicitly infringed on the state laws then in existence providing for debtor prisons.
      The Federalist Papers make clear the importance that supporters of the Constitution attached to the enhanced powers of the proposed new government. The first 25 of the essays all warn against the dangers of the weak Articles of Confederation government: dangers of “foreign force and influence,” “dissension between the states,” and “domestic faction and insurrection.” Hamilton fears the United States could fall victim to the same rivalries that toppled Athens and Sparta in classical times (No. 6). He complains about the “imbecility” of a national government with no power other than to make “recommendations” to the states (No. 15).
      True, later essays seek to assuage concerns in state capitals by contending that states would have significant advantages in any contest of powers (Madison, No. 46). Overall, however, the Constitution set up a strong government for its day. And today it is clear that without that strong government, the United States might not have become the wealthiest and most powerful country in the world.
      In his interview, Roberts stressed the Framers’ other innovation — the tripartite structure of the national government — as the principal protection for liberty under the new Constitution. The later Federalist essays indeed pointed to this system of checks and balances in trying to ease fears among the anti-ratification forces. The courts were part of that liberty-protecting system from the outset even if Hamilton famously soft-pedaled the role by calling the judiciary “the least dangerous branch” (No. 78).
      Today’s constitutionalists are of two minds on the courts' role. They decry judicial activism in decisions they dislike but are now looking to the courts to overturn laws they dislike — from campaign finance regulations and gun controls to the brand-new health care law that they mock as “Obamacare.” Roberts acknowledged to C-SPAN the judiciary’s role in protecting liberty, but also cautioned against the impulse to take political disagreements to the courts instead of resolving them through democratic means. The health care fight is headed to Roberts’ court; it will be interesting to see how the chief justice balances those sometimes competing considerations.

Monday, January 3, 2011

Push for Filibuster Reform in ‘Dysfunctional’ Senate

      The Senate got tied up in knots in February 1917 when President Woodrow Wilson asked for authority to arm U.S. merchant ships to defend against Germany’s submarine warfare. Despite the Democratic president’s re-election and the Democratic majority in the Senate, Republican senators mounted a filibuster to block the legislation.
      Wilson solved the immediate problem by arming merchant ships by executive order, but he also used the national security issue to leverage public opinion behind a change in Senate rules to limit the century-old tradition allowing unlimited debate in the chamber. Senate Rule 22 provided that a vote of two-thirds of the Senate could invoke “cloture” and cut off debate.
      Today, nearly a century later, the Senate is routinely tied up in knots even though a rules change in 1975 reduced from two-thirds to three-fifths the supermajority needed to limit debate. Over the past decade, the filibuster has come to be so commonly wielded that it takes a three-fifths majority to get anything passed in the Senate.
      Over the past two years, minority Republicans were especially active in using the tactic to slow or thwart President Obama’s legislative program. Despite majority support from the public, Obama managed to get his health care plan and repeal of “don’t ask, don’t tell” through the Senate only by dint of intense lobbying by the White House and outside groups.
      Now, with the Senate set to convene on Wednesday (Jan. 5) with a fortified Republican minority, some Democratic senators are pushing proposals to revise Senate rules to limit obstructionist tactics. The outcome is uncertain. Republicans are laying down markers against any change. A spokesman for Senate GOP leader Mitch McConnell is throwing cold water on reform by warning Democrats that they could rue any changes the next time they are in the minority.
      Federal courts have a stake in the fight. The proposed reform being pushed by first-term Democrat Tom Udall of New Mexico would not only change the rules on filibusters but also curb the use of anonymous “holds” on judicial nominations and other presidential appointments. Those two tactics have combined to slow Senate confirmation of Obama’s nominees and to leave the federal courts with a record number of vacancies as Congress adjourned in December.
      The reform efforts collide with what one congressional expert calls a historical misunderstanding of the Senate’s “tradition” of unlimited debate. Sarah Binder, a senior fellow in governance studies at the Brookings Institution in Washington, notes that the Senate and the House of Representatives both began with rules permitting simple majorities to “move the previous question” — that is, call for a vote on a pending bill or resolution. But the Senate deleted that provision in 1806, merely to simplify its rules.
      The pejorative term “filibuster” — derived from a Dutch word for pirates — had been coined by the 1850s, but the tactic was rarely used before the Civil War and still infrequently for the rest of the 19th century. Southern Democrats made the most frequent use of the tactic in the 20th century, blocking anti-lynching legislation in the 1930s and broader civil rights proposals in the 1950s and ’60s. The Civil Rights Act of 1964 was enacted only after President Lyndon B. Johnson used his intimate knowledge of Senate politics — and the memory of his slain predecessor, John F. Kennedy — to overcome a 57-day filibuster.
      The Senate’s decision a decade later to allow cloture by a three-fifths vote represents a kind of historical judgment against abuse of the filibuster. The leader of that effort was Walter Mondale, then a Minnesota senator and later vice president. Today, Mondale says further reform is needed in a Senate that he describes in an op-ed in the New York Times as “arguably more dysfunctional than at any time in recent history.”
      The possible changes under discussion are varied, according to Binder’s colleague, Steven Smith, a professor at Washington University in St. Louis and a Brookings fellow. One idea would be to lower the supermajority needed to invoke cloture, perhaps to 55 senators. A variant would reduce the number in stages: perhaps 57 votes after a specified period, 54 votes after additional time. Another idea would require that filibustering senators actually come to the Senate floor and debate. As currently practiced, senators can simply declare their intention to block a vote without so much as taking the floor to explain their opposition.
      Senate Democrats, who succeeded in invoking cloture 63 times during the past congressional session, were all but unanimous in a letter in December urging Majority Leader Harry Reid to support rules changes. Reid and McConnell are reportedly negotiating over the issue even as Udall and others are shaping their own proposals.
      One critical preliminary issue will be whether any change requires a two-thirds vote, as Rule 22 ostensibly requires, or a simple majority, as Udall argues. Under what Udall and others call the “constitutional option,” a new Senate is free to adopt its own rules by majority vote, unbound by the rules of a prior body.
      The Senate’s new partisan alignment — with 53 Democrats and 47 Republicans — adds to the need for changing the rules. Barring the unlikely breakout of bipartisanship on Capitol Hill, a Senate that cannot act without a 60-vote majority could be tied up in knots for a full two years. In the long run, a dysfunctional Senate disserves the public and discredits both parties alike.