Monday, October 31, 2011

Justice Thomas's Two Decades of Rejecting Precedents

      As a Supreme Court nominee, Clarence Thomas presented himself as a cautious jurist committed to judicial restraint. “I have no agenda to change existing case law,” Thomas told a Republican senator during his confirmation hearing after being asked about his critical views about school desegregation. “That’s not my predisposition. It's not the way that I approach my job.”
      In his 20 years on the bench, however, Thomas has been a judicial activist of the first rank, a veritable bull in a china shop of Supreme Court precedents. More than any justice in recent memory — perhaps more than any justice in history — Thomas has time and again called for overruling prior decisions, some of them of recent vintage and some dating back decades or even centuries.
      Thomas was a brand-new Supreme Court justice in fall 1991 when he first met a precedent that he did not like. In Hudson v. McMillian (1992), a case argued in November 1991 in Thomas’s second week of oral arguments, Thomas contended in dissent that the Eighth Amendment’s Cruel and Unusual Punishment Clause should not apply to a prison guard’s deliberate beating of an inmate. For the majority, Justice Sandra Day O’Connor said that Thomas’s dissent ignored a “settled rule” dating to 1977 that “unnecessary and wanton infliction of pain” violates the Eighth Amendment.
      Thomas originally cast a lone dissenting vote in the case in the justices’ conference, though fellow conservative Antonin Scalia later joined his opinion. (In her book Supreme Conflict, the conservative-leaning reporter Jan Crawford Greenburg, then with ABC News and now with CBS, cites that sequence to refute the notion that Thomas in his early years simply followed Scalia’s positions.) In at least three dozen cases since then, however, Thomas has been all by himself in calling to overturn precedents.
      A compilation in 2004 by Jason Rylander, a lawyer then with the progressive group Community Rights Counsel, lists 35 cases in which Thomas argued alone either in concurring or dissenting opinions for reconsidering settled precedents. The list begins with Thomas’s questioning in Georgia v. McCollum (1992) of the rule established a year earlier that private litigants cannot use peremptory challenges to exclude potential jurors on the basis of race.
      Rylander, now with Defenders of Wildlife, ended his list in 2004, a year in which Thomas argued in half a dozen cases for rethinking past decisions. In one of those, Elk Grove Unified School District v. Newdow, Thomas took the startling position that the Establishment Clause, the central pillar of the separation of church and state, should apply only to the federal government, not to the states. In another, Sabri v. United States, Thomas argued for reconsidering decisions broadly interpreting Congress’s powers under both the Commerce Clause and the Necessary and Proper Clause.
      Had Rylander continued the compilation, he could have added at least two more from the past two terms. In Citizens United v. FEC (2010), Thomas argued in a lone dissent for scrapping campaign-finance precedents that uphold mandatory disclosure of campaign contributions. And just this year, in Brown v. Entertainment Merchants Association (2011), Thomas argued in dissent that minors have no independent First Amendment right of access to speech that the government wants to censor. That approach would be at odds with the court’s landmark student-speech ruling in Tinker v. Des Moines Unified School District. Writing the majority opinion in the case, Scalia noted that Thomas cited no case in support of his view.
      Thomas is not always alone in his penchant for breaking precedent. In his first term, he joined three others, including Chief Justice William H. Rehnquist, in a dissenting opinion that called for a “re-examination” of the landmark abortion rights ruling Roe v. Wade. Thomas had studiously avoided all questions on abortion during the confirmation hearing. More recently, in Parents Involved in Community Schools v. Seattle School District No. 1 (2007), he joined a plurality opinion by Chief Justice John G. Roberts Jr. that undercut the line of school desegregation decisions that Thomas had earlier appeared to accept.
      Precedents are not sacrosanct. The court itself has stated that the principle of stare decisis — respect for precedent — "is not an inviolable command.” Some of the court’s greatest moments have come in rejecting decisions that were wrong when decided or wrong when reconsidered. Think Brown v. Board of Education, Gideon v. Wainwright, and Lawrence v. Texas.
      Thomas’s approach, however, sets him apart even from his fellow conservatives. In his confirmation hearing, Roberts acknowledged that overruling a precedent can be “a jolt to the legal system.” As chief justice, Roberts has stopped short at times of officially overruling prior decisions. Thomas is less hesitant. As Scalia remarked to Thomas’s biographer Ken Foskett, Thomas “doesn’t believe in stare decisis, period.
      As he marks his twentieth anniversary on the court, controversy still rages whether Thomas or law professor Anita Hill was telling the truth about Hill’s accusations of sexual harassment. That controversy will likely remain unsettled. But Thomas’s record over two decades shows that he has not been the justice that he promised to be during confirmation hearings. His record may cheer conservatives, but others will see evidence that Thomas reached the court only after a calculated dissembling before the Senate about his approach to legal issues. That may be a reflection on the confirmation process, but it is also, and more to the point, a reflection on Thomas himself.

Monday, October 24, 2011

On Health Care, Will Justices Defer to Congress?

      Congress touched on some important First Amendment rights two decades ago when it passed a law requiring cable systems to carry the signals of all local broadcast stations. Cable systems argued that the government had no business telling them what to carry – arguments analogous to those heard today from the opponents of the individual health insurance mandate now being challenged before the Supreme Court.
      Before passing the cable “must-carry” law, however, Congress also heard from broadcasters and public-interest advocates that free, over-the-air broadcasting could be imperiled if cable systems, with their effective monopoly power and competing financial interests, refused to carry local TV stations. Those arguments are analogous to the warnings from supporters of the Patient Protection and Affordable Care Act that the health care market will be distorted — and health insurance premiums driven up — unless all health care consumers have to pay through insurance for the medical care they will eventually receive.
      The arguments over the cable law reached the Supreme Court in 1994 and again in 1997 in a constitutional challenge brought by the cable industry. In its first ruling, the court said the government needed to do a better job of justifying the law. On remand, a three-judge federal court in Washington conducted an extensive hearing recapping all of the testimony heard by Congress earlier and then upheld the law for a second time.
      The Supreme Court followed suit, in a 5-4 decision written by Justice Anthony M. Kennedy. In the critical passage in Turner Broadcasting System v. FCC (1997), Kennedy said it was for Congress, not the court, to decide how to regulate national industries even when First Amendment rights were at stake. The court had to defer to Congress’s findings “as to the harm to be avoided and to the remedial measures adopted,” Kennedy wrote, “lest we infringe on traditional legislative authority to make predictive judgments when enacting nationwide regulatory policy.”
      The Obama administration is making a blatant appeal for Kennedy’s vote in the pending challenges to the health care law by using that passage to close its most recent filing in the legal challenges before the high court. The government brief, filed on Tuesday (Oct. 18), came just one day after the 26 states challenging the law filed their brief in what appears likely to be the case that the Supreme Court will use to determine the constitutionality of the law.
      The rapid-fire succession of briefs in the case originally known as Florida v. Sebelius attests to the desire of critics and the Obama administration alike for a prompt resolution of the constitutional issues. Some Republicans and conservative court watchers were speculating over the summer that the administration might try to drag out the appeals in the multiple pending challenges so as to avoid the risk of an adverse Supreme Court decision in a presidential election year.
      The administration squelched that talk by filing its appeal in the Florida case — the only case the administration has lost so far — directly to the Supreme Court on Sept. 28 instead of asking for a rehearing before the full Eleventh U.S. Circuit Court of Appeals. The states — along with the National Federation of Independent Businesses, plaintiffs in a challenge consolidated with Florida’s — had filed their own appeals earlier that day. The administration wants to reverse the appeals court’s decision finding the individual mandate unconstitutional, while the challengers want to have the entire law thrown out – as the district court judge in Florida had ruled. The appeals court said the individual mandate could be severed from the law and the rest left on the books.
      The latest filings also came well ahead of schedule: the states beat their deadline by 11 days, the government would have had 15 days to respond. The new filings would allow the justices to take up the case in early November, allowing oral arguments in March even if the court does not ask to expedite the case.
      The court itself apparently recognizes the importance of the case. In an unusual but not unprecedented action, the court has established a separate web site page with links to docket information and briefs filed on all six of the pending petitions. In the other cases, the Sixth Circuit upheld the law, while the Fourth Circuit dismissed two challenges, in effect, as premature. Significantly, the administration is asking the court for a ruling on the merits without invoking traditional legal doctrines that could delay a decision.
      The opposing arguments in the briefs from the states and the NFIB on the one hand and the government’s on the other are just like those that Congress and the president resolved in favor of the individual mandate. All four of the newest justices — Roberts, Alito, Sotomayor, and Kagan — swore in their confirmation hearings that they recognized the Supreme Court’s role as a limited one, requiring deference to the policy choices of the political branches. In Roberts’ famous formulation, the court calls balls and strikes, but the other branches make the rules.
      The Turner Broadcasting Court, closely divided on legal doctrine like today’s, followed that approach in upholding the must-carry law. If the Roberts Court divides on the health-care law along conservative-liberal lines, as many are predicting, one can expect the government to remind Justice Kennedy several times how he voted in that case.

Monday, October 17, 2011

Frank Kameny, Civil Rights Hero, 1925-2011

      For all their undoubted bravery, the men and women who waged the battle for civil rights for black Americans in the 1950s and ’60s were not alone in their struggles. They had behind them and on their side black civil rights organizations, black churches, some white liberals in churches and synagogues, some sympathetic coverage in the news media, and, as early as Brown v. Board of Education, the federal government.
      Frank Kameny, who died last week (Oct. 11) at the age of 86, had virtually no one behind him or on his side when he began fighting for civil rights for gay Americans like himself in the late 1950s. Back then, homosexuals were all but alone, deemed either immoral or mentally ill or both, presumed unfit for government service, politically powerless, and invisible in information or entertainment media.
      Kameny did as much as to change that, probably more, than any other single person. Speakers at a program last week sponsored by the Rainbow History Project of Washington, D.C., rightly remembered him as having laid the philosophical basis for the gay rights movement. Kameny led the legal fight to remove homosexuality as the basis for disqualification from working for the federal government. He led the successful effort to get the American Psychiatric Association to stop classifying homosexuality as a mental illness. And he coined the phrase, “Gay is good,” which over time gave gays and lesbians self-esteem and self-confidence and eventually helped change society’s views of homosexuality as well.
      Kameny, a World War II veteran and Harvard-trained astronomer, started the fight out of necessity after having been fired from his job as an astronomer with the U.S. Army’s Map Service. (It is commonly reported that Kameny was arrested for cruising in Washington's Lafayette Park, but in his later appeal Kameny attributed his dismissal to his truthful disclosure on an employment form of a prior arrest in San Francisco on a baseless charge that was later expunged.) He fought his dismissal all the way to the U.S. Supreme Court, representing himself — on his own — in a strongly argued plea that his personal life had nothing to do with his government service. The justices refused to hear the case. (The 1961 petition is available here, as part of the Rainbow History Project’s Frank Kameny pages.)
      In the same year, Kameny founded one of the first gay rights organizations, the Mattachine Society of Washington. There were other organizations of the same name founded in the 1950s in Los Angeles and San Francisco. (Mattacino was a character in Italian theater, a court jester of sorts.) The Washington organization was independent, however, both in form and spirit. Unlike the California organizations, Kameny resolved to be as public as possible in advocating for the rights of gays and lesbians.
      It was in that spirit that Kameny led the first gay rights picketing in front of the White House on April 17, 1965 — four years before the raid on the Stonewall bar in New York City that is often treated as the beginning of the gay rights movement. The demonstration drew no news coverage except a brief mention in Washington’s Afro American newspaper, but the placards that Kameny and his dozen or so allies carried have now been turned over along with Kameny’s papers to the Library of Congress. Six years later, in 1971, Kameny ran for the District of Columbia’s non-voting seat in the House of Representatives. He was the first openly gay person to seek federal office in the United States.
      Kameny was equally bold in challenging the psychiatric establishment to remove homosexuality from its authoritative Diagnostic and Statistical Manual of Mental Disorders (the so-called DSM). As speakers at the Rainbow History program recalled, Kameny led a small band of gay guerrillas into the APA’s annual meeting at a Washington, D.C., hotel, stormed the stage, and lectured the startled psychiatrists that they were all wrong about homosexuality.
      Along with public advocacy, Kameny and the Mattachine Society also functioned as a self-help organization for gays and lesbians. A friend recalled to me having called the group’s hot line for medical advice after having his first same-sex experience. The society published a pamphlet with advice about what to do if arrested on sex-related charges. And Kameny provided his apartment as a way station for visiting gay activists.
      The APA delisted homosexuality in 1973. Two years later, the U.S. Civil Service Commission decided that homosexuality was no longer. Eventually, the District of Columbia police retreated from targeting gays for arrests for consensual sex. And in 2003, the Supreme Court ruled, in Lawrence v. Texas, that an individual’s “intimate relationships” were of no concern to the government, at least as far as criminal law was concerned.
      Kameny lived long enough to be recognized as a gay rights hero. The
in the New York Times and the appreciation on the CBS program “Sunday Morning” included pictures of Kameny with President Obama in the White House, four decades after he picketed outside its gates. Kameny recognized the changes, but he was also unchanged in his determination. He was not satisfied that Congress has yet to make it illegal to discriminate in the workplace on the basis of sexual orientation. He was not satisfied that marriage equality remains a goal, not a fact. But he could take some pride in having accomplished to some extent the goal set out in the initial charter of the Mattachine Society of Washington: “to secure for homosexuals the right to life, liberty, and the pursuit of happiness.”

Tuesday, October 11, 2011

Stevens' Affectionate Memoir of Chief Justices He Knew

Five Chiefs: A Supreme Court Memoir. John Paul Stevens (Little Brown, 2011).
      Sometime between John Paul Stevens’ year as a law clerk in 1947-48 and his appointment to the Supreme Court in 1975, the justices changed the way that they voted on cases in their private conferences. Back when, the justices voted in reverse order of seniority: junior justice first on up to the chief. When he arrived as a justice, Stevens discovered that the voting proceeded in order of seniority, beginning with the chief and on to the junior justice: Stevens for his first seven terms.
      In his affectionate, discursive memoir Five Chiefs, Stevens says he would have preferred the earlier system, thinking it gives the junior justices a chance to persuade the court’s senior members. Still, the new system did give Stevens a chance to play a little game with his colleagues when the vote reached him with the eight justices divided 4-4.
      Stevens’ colleagues at the time included the liberal William J. Brennan Jr. and the conservative William H. Rehnquist, almost always on opposite sides in closely divided cases. So, when it came Stevens’ turn, he sometimes began by saying, “I agree with Bill,” and then waiting a couple of beats before saying which one.
      Admittedly, one has to be a Supreme Court junkie to get the most out of this pleasantry, but for those readers Stevens provides amusing anecdotes and interesting tidbits on every page. He recalls the time when Justice Potter Stewart whispered a disparaging comment about the lawyer then arguing to his adjacent colleague, Harry Blackmun, without realizing that his microphone was on. He also discloses that Blackmun is responsible for the rather obvious suggestion that the justices should meet for the “long conference” to dispose of the petitions that have piled up during the summer in the week before the new term begins on the first Monday in October.
      The heart of the book, as the title promises, are portraits of the five chief justices that Stevens has known as a law clerk (Fred Vinson), lawyer and appeals court judge (Earl Warren), and colleague (Warren Burger, Rehnquist, and John G. Roberts Jr.). As though to establish his bona fides of objectivity, Stevens finds something favorable and something critical about each.
      Stevens frankly admits that he did not admire Vinson. In line with conventional wisdom, he depicts Vinson’s appointment as product of cronyism with President Harry Truman and Vinson’s legal acumen as less than several of his colleagues. But Stevens credits Vinson with a decision on post-conviction remedies that Stevens, as a lawyer, later used to win the release of a wrongfully convicted prisoner.
      Warren is praised for three major decisions: Brown v. Board of Education, the school desegregation case; Reynolds v. Sims, applying one-person, one vote to state legislatures; and Miranda v. Arizona on police interrogation. But Stevens faults Warren’s decision, in the interest of unanimity, to delay immediate implementation of the desegregation ruling, allowing massive resistance to form.
      Burger is given credit for his many steps to improve administration of justice, as well as initiating the current rule limiting arguments to one hour, 30 minutes per side. It was also Burger who suggested that the cover of briefs be in different colors (for example, blue for petitioner’s brief on the merits, red for respondent’s) to help justices find cited sections during arguments. On the other hand, Stevens repeats the well known criticism that Burger was ineffective in managing the justices’ conference: allowing debate to go on too long, interjecting himself before others had spoken, and taking inaccurate notes as to justices’ votes.
      Rehnquist, by contrast, was efficient and impartial in managing his colleagues, according to Stevens, not only in the conference but also in the seemingly mundane task of taking the bench. The justices are summoned for the 10 o’clock opening by a buzzer at 9:55, giving them only five minutes to assemble, don their robes, and (per custom) shake hands with each of their colleagues. Under Rehnquist, Stevens relates, the justices had an unexcelled on-time record of being ready when the 10 o’clock buzzer went off.
      On the other hand, Stevens is less of a fan of Rehnquist’s jurisprudence. In particular, he criticizes Rehnquist’s decision, reversing a recent precedent, of allowing “victim impact statements” in death penalty cases. And he strongly disagrees with Rehnquist’s line of decisions protecting state governments from private suits for violating federal laws.
      Roberts’ portrait, shortest of the five, stresses his legal acumen and daunting skills as an advocate in 39 cases argued before the court. Having heard all of them, Stevens writes, “I consider myself well qualified to testify that he was a superb lawyer.” But Stevens faults Roberts as chief justice for being too lenient in giving lawyers extra time for arguments after the red light has come on. He also thinks Roberts was wrong to have agreed to be sworn in at the White House: Stevens thinks the president should come to the court, not vice versa. Even so, Stevens set his view aside and agreed, as the senior justice, to administer the oath.
      Stevens’ rank in history remains to be determined, but he retired with an outpouring of admiration and affection from Supreme Court watchers of all ideological stripes. After reading this memoir, readers will understand why.

Monday, October 3, 2011

Laying Out the Facts on Awlaki Killing

      When Thomas Jefferson and his fellow revolutionaries declared the American colonies’ independence from England, they began by explaining the need to lay out their reasons, in factual detail, for such a momentous decision. “A decent respect to the opinions of mankind,” Jefferson wrote, “requires that they should declare the causes which impel them to the separation.”
      What was true then is true today. The United States’ national identity demands that its actions, at home and abroad, satisfy in some sense “the opinions of mankind,” both at home and abroad. So the Obama administration owes it to Americans and the rest of the world to lay out in detail its case for the targeted killing of Anwar al-Awlaki, a U.S. citizen and al Qaeda leader, in a missile strike by a CIA-controlled drone aircraft in the Yemeni desert last week [Sept. 30].
      Much is known about Awlaki (sometimes spelled “Aulaqi”), and much of the information is from the U.S. government. But some of what is “known” is only asserted. And some of the unsubstantiated assertions are critical in determining whether the killing of Awlaki satisfies what may be or should be the requirements of U.S. and international law.
      Awlaki was born in New Mexico in 1971 and later educated in the United States after growing up in his father’s native Yemen. He was a Muslim imam of seemingly moderate views in several cities, including the Washington, D.C., area, before adopting radical Islamist doctrines that he has espoused on the Internet for nearly a decade. He was, in no uncertain terms, someone who wished the United States ill and someone who actively encouraged others to take up jihad against the United States.
      In announcing Awlaki’s death, President Obama identified him as “the leader of external operations for al Qaeda in the Arabian Peninsula.” In that role, Obama said, Awlaki “took the lead in planning and directing efforts to murder innocent Americans. He directed the failed attempt to blow up an airplane on Christmas Day in 2009. He directed the failed attempt to blow up U.S. cargo planes in 2010. And he repeatedly called on individuals in the United States and around the globe to kill innocent men, women and children to advance a murderous agenda.”
      As of this writing, the evidence to back up the most specific of those charges has not been made public. Awlaki acknowledged in an interview early last year that he knew and taught Umar Farouk Abdulmutallab, the so-called “underwear bomber” in the failed 2009 aircraft bombing. But Awlaki claimed that he did not direct Abdulmutallab to carry out the attack. The British press have reported on e-mails linking Awlaki to efforts to circumvent airport security procedures in the United Kingdom. But the evidence disclosed so far appears short of proving an operational role in the foiled October 2010 plot to place bombs aboard U.S.-bound cargo planes.
      Awlaki was reported more than a year ago to have been placed on a list of terrorists targeted to be captured or killed. Representing Awlaki’s father, the American Civil Liberties Union filed a federal court suit in August 2010 contesting the designation or, at the least, requiring the government to justify the decision. “Both the Constitution and international law prohibit targeted killing except as a last resort to protect against concrete, specific, and imminent threats,” the ACLU argued.
      The government responded by filing a document showing the procedures used for targeted drone strikes but without any specific information about Awlaki. In December, Judge John Bates dismissed the lawsuit. Bates said that Awlaki’s father lacked standing to bring the action and that the suit in any event raised a political question ill suited for courts to decide.
      The ACLU’s arguments were just that: arguments. Neither U.S. nor international law can be said to have a settled position on the rules applicable to targeted killings outside an active combat zone. But in his role as the United Nations’ special rapporteur on extrajudicial, summary or arbitrary executions, the U.S. law professor Philip Alston laid out criteria in a May 2010 report comparable to those the ACLU cited.
      A targeted killing must be “required to protect life,” Alston wrote in the 29-page report, with “no other means, such as capture or nonlethal incapacitation, of preventing the threat to life.” In addition, a government must have reliable information and intelligence to support the targeting decision and to minimize risk to civilians. And, significantly, Alston set out detailed rules of transparency and accountability. States should lay out the claimed basis for targeted killings, the procedural rules followed and after-action procedures to monitor compliance, he said.
      Benjamin Wittes, the Brookings Institution scholar who has followed the war on terror for a decade, proposed somewhat similar criteria for judging targeted killings under the Constitution’s Due Process Clause. On the national security blog Lawfare, Wittes said the target must be “identified with a high degree of confidence” and pose “an unreasonable risk to human life” with “no option for capture.” Surveying the information known about Awlaki, Wittes concludes the government’s action met that test.
      Wittes omitted one essential requirement from Alston’s list: transparency. Many Americans, and many others around the world, have well reasoned concerns about the U.S. action. Those concerns cannot be addressed by victory statements from White House lecterns. A decent respect for the opinions of mankind demands that all the facts be laid out for Americans and the world to judge.