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Ah, federalism. Which is in the eye of the beholders. The beholders being Clarence Thomas, Antonin Scalia, Samuel Alito, Anthony Kennedy, John Roberts … and the Koch brothers.

(Correction appended.)

(Clarence Thomas in his separate concurrence]* adds that in his view the First Amendment religion clauses don’t apply to the states in the first place. And it only probably bars the establishment of a national church—leaving open the question for another day.

Let Us Pray:The Supreme Court gives its blessing for prayer at town meetings. Get ready for a lot more Jesus in your life., Dahlia Lithwick, Slate, yesterday

That’s right; the First Amendment religion clauses don’t apply to the states in the first place. No Sir. No way. No how. It’s only the First Amendment’s speech clause that applies to states in the first place.

In the last two years, Thomas and Scalia have voted with their three compadres to strike down Montana and Arizona campaign-finance laws as violative of the First Amendment’s speech clause–in the Montana case in a summary reversal of a ruling by the Montana Supreme Court; that is, without briefing and argument.  The vaunted freedom conferred by federalism (a.k.a., states’ rights!) is somewhat temperamental.  But, whatever.

I strongly recommend the entire Lithwick article, which discusses several parts of the Kennedy plurality opinion, a concurring opinion by Alito, and the Thomas concurrence.  The statements these people make go well beyond the issue in that case, and are truly breathtaking.

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*CORRECTION: Originally this post said that Scalia joined Thomas’s concurrence in full. That was incorrect; he joined all of it except the part in which Thomas repeats his belief that the First Amendment’s two religion clauses are not properly viewed as applying limitations to states via the Fourteenth Amendment, through what’s known as “the incorporation doctrine.”  Thomas is the only justice, to my knowledge, to express or support such a view–ever.

As I understand Thomas’s claim, it’s that the Framers’ intent in drafting the religion clauses was to prevent the federal government from stopping the states from adopting a state-sponsored religion. It’s utter nonsense–absolutely fanciful–but it is part and parcel of a key premise of the Conservative Legal Movement’s “federalism” claim: that the very structure of the Constitution itself as set forth in the original Articles is that the Constitution makes states sovereigns and that a threshold purpose of the document is to protect state’s prerogatives from incursion by the federal government–and that this includes the right of state courts in criminal and civil cases, and the right of state prosecutors, to infringe at will upon the rights of individuals.

Kennedy, in fact, actually has written that the structure of the original Constitution trumps Amendments that alter the relationship between the states and the federal government.  Roberts,for his part, made clear last year in his opinion striking down a key section of the Voting Rights Act that he agrees wholeheartedly with this; his opinion in that case, Shelby County, Ala. v. Holder, effectively holds that these folks’ concept of the structure of the original Articles trumps Section 2 of the Fifteenth Amendment.  And it explains the bizarre juggernaut that I wrote about here.

We’re witnessing here a concerted, unremitting restructuring of fundamental parts of American law under the guise of constitutional interpretation, employing medicine-man semantics gimmicks and other such tactics, including baldly false, disorienting declarations stating what others’ opinions are.  The Articles of the Constitution are viewed as really the Articles of Confederation, except when that would limit rather than advance this crowd’s lawmaking or outright partisan agenda.** And they’re getting away with it–and will until the Democrats actually start making it an issue.  My suggestion: that the Dems run ads this election year actually quoting from the opinion in McCutcheon v. FEC and also note the striking down of Arizona’s and, especially, Montana’s campaign-finance laws.  Montana’s statute was enacted in the early part of the last century. – 4/7 at 11:04 a.m.

**I just updated this post again to add “and outright partisan” to that sentence and to link to Thomas Edsall’s terrific op-ed about this in today’s New York Times. This issue is finally getting some mainstream-media attention.  Hurray. – 4/7 at 12:57 p.m.

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Do take advantage of your brand new prayer opportunities. Along with your newly created job opportunities and all your new freedoms.

The most important turn in Monday’s Supreme Court ruling in Town of Greece v. Galloway—a case that probes the constitutionality of explicitly religious prayer in legislative sessions—isn’t that the courts no longer have a role in policing the Establishment Clause, or that pretty much any sectarian prayers can be offered at town meetings so long as they do not “threaten damnation, or preach conversion” to minority religions. No, I think the interesting change in the court’s posture today is that sectarian prayer in advance of legislative sessions is no longer characterized merely as “prayer.” In the hands of Justice Anthony Kennedy, who writes for five justices, these benedictions are now free and unfettered “prayer opportunities.” And “prayer opportunities” are, like “job creators” and “freedoms,” what make America great.

Let Us Pray:The Supreme Court gives its blessing for prayer at town meetings. Get ready for a lot more Jesus in your life., Dahlia Lithwick, Slate, yesterday

My Polish-Jewish-immigrant grandmother, who’s been spinning in her American-cemetery grave since yesterday morning (trust me on that), might calm down once she realizes the benefits of this new all-in-one-case body of law.  Which are that town residents who’d rather not take advantage of their prayer opportunity but who do want to attend a town-government meeting can plug their iPhone earphones into their ears and enjoy some music until the policymaking stuff begins. And not have to worry about appearing rude.

Hopefully, someone will give some visual signal that the prayer opportunity is over and that everyone who didn’t grab the opportunity when it was available will have to wait until Sunday church service for another one. Although there probably isn’t a prayer that that will happen. And if all hell breaks loose before Sunday, like during the policymaking debate, that missed prayer opportunity will be regretted. My grandmother would have appreciated being forewarned.

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Two Yale law professors think they know what, exactly, the APPEARANCE of quid pro quo corruption looks like. They don’t. But I do.

If the president is to be taken seriously, it’s time for him to make campaign finance a centerpiece of the upcoming campaign. Despite appearances, serious reform remains possible within the new limits set out by the Roberts court. Obama should take full advantage of the chief justice’s explicit recognition that the “appearance of corruption” serves as a compelling rationale for controlling contributions. This provides a meaningful roadmap for concrete reforms that will call a halt to the rise of plutocracy in American politics.

Consider, for example, the pathologies surrounding Wall Street’s defense of the loophole allowing big money to pay only 15 percent tax on investments as “carried interest.” To defend their right to pay lower rates than the average worker, hedge funds have doubled their political contributions from $20 million in 2008 to $40 million in 2012; yet more recently, private equity firms have entered the contribution business in a big way for the first time.

All Eyes on Obama: Obama needs to put his money where his mouth is on campaign finance reform, Bruce Ackerman and Ian Ayres, Slate, yesterday

In this post of mine here on Thursday, I mentioned that Roberts said in McCutcheon that Congress could still “regulate campaign contributions to protect against corruption or the appearance of corruption,”  but then limited “corruption” to an actual quid pro quo. Which I think there’s no question that he did. I then said this raises the question of what, exactly, the appearance of quid pro quo corruption looks like.  “Y’know, as opposed to the real thing,” I said.

Ackerman and Ayres, both of them Yale law professors, want Obama to try to push Congress to hold Roberts to the “appearance of corruption” thing. Which, as reflected in that quote above, would require an express statutory bar to large campaign contributions–to candidates and also, presumably, political parties–by anyone who made the contribution in order to obtain or prevent an end to favorable tax, subsidy or regulatory legislation, if that candidate wins (or that party wins control) and then does the bidding of the contributor.

That conduct is comfortably within most Americans’ definition of actual (if legal) corruption, I think, but it is expressly precluded from Roberts’ definition of “corruption” and also from his definition of the appearance of corruption. Still, the professors go on to say:

The impact of this rapid expansion in large gifts was recently on display when Republican Dave Camp, chairman of the House Ways and Means Committee, proposed a sweeping tax reform that would have eliminated this, and many other, loopholes that allow the top 1 percent to pay taxes at lower rates than those imposed on the average working family. Within days, threats of campaign retribution had generated widespread opposition in congressional ranks, leading a despairing Camp to announce that, despite his powerful position, he would not seek another term in office.

This stunning defeat of a reigning congressional baron, together with the escalating sums of big money, is more than enough to establish the “appearance of corruption.” Under present law, for example, federal contractors are not allowed to “make any contribution of money or other things of value” to “any political party, committee, or candidate.” After reviewing relevant case-law, a federal district judge upheld the ban because it “guards against ‘pay-to-play’ arrangements, in which people seeking federal contracts provide financial support to political candidates in return for their help securing government business.”

The same rationale should lead President Obama to propose a ban on contributions from taxpayers benefiting from the “carried interest” loophole. Going further, he should cap donations on any person who pays a lower tax rate than the rate of the average worker.

I assume that Ackerman and Ayres are sarcastically making the point that I tried to make: that McCutcheon actually limits campaign-finance laws to prohibiting what already violates criminal law: bribery.

But this illustrates an even more important point.  A key modus operandi of that crowd is to effectively amend the Constitution by redefining common English-language words and phrases, to the extent needed to achieve their goal.

“Corruption” means only smoking-gun quid pro quo. The “appearance of corruption” means only smoking-gun quid pro quo.

“Freedom” does not include actual physical non-imprisonment; to the contrary, “freedom” means states’–or actually, state courts’and prosecutors’ freedom to violate criminal defendants’ constitutional rights, to their heart’s content.

“People” means “states,” except that it really doesn’t, usually; it only does when the Voting Rights Act is being challenged as an unconstitutional infringement of the Fourteenth Amendment’s guarantee of due process and equal protection of the law. Heretofore (that is, since that Amendment’s ratification in 1868, until last year)  the Fourteenth Amendment was thought to guarantee those rights only to human beings, and its sole purpose was interpreted to protect only against states’ violations of those rights, since that is what it says; the Amendment does limit the guarantees to “people” and protects only against state–not the federal government’s–violations of those rights.

Just so you know, the section of the Fourteenth Amendment that Roberts, Kennedy, et al. said they were relying on to strike a key section of the Voting Rights Act last year, upon their stated conclusion that that section guarantees states the right to equal protection of federal laws, reads:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

And, of course, “people” means for-profit corporations, for purposes of First Amendment freedoms.

This is a seriously dangerous tactic, being employed now, regularly, by a bare majority of our country’s Supreme Court.  They de facto amend the Constitution to change its very nature, and of course not incidentally the very nature of the electoral process, simply by giving unconventional meanings to common words.

I do disagree, strongly, though, with Ackerman’s and Ayres’ proposition that Obama himself constitutes the end-all-and-be-all of making McCutcheon a significant campaign issue this year (or not). A huge problem for the Democrats, throughout the Obama administration, has been the failure of members of Congress and candidates for Congress to pick up Obama’s bizarre slack–on the ACA, on Keynesian economics, and on other critically important policy issues. Obama’s not going to change.  So what? This year’s Dem candidates can get these messages across on their own.

If they want to.  And they should want to.

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*Post edited substantially and expanded. 4-6

** Now cross-posted at my own newly minted blog, called … The Law of the Jungle.

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What to look for in tomorrow’s Supreme Court arguments in the Hobby Lobby/Conestoga Wood ACA-contraception-coverage cases

[The] conception of corporate personhood has profound and beneficial economic consequences. It means that the obligations the law imposes on the corporation, such as liability for harms caused by the firm’s operations, are not generally extended to the shareholders. Limited liability protects the owners’ personal assets, which ordinarily can’t be taken to pay the debts of the corporation. This creates incentives for investment, promotes entrepreneurial activity, and encourages corporate managers to take the risks necessary for growth and innovation. That’s why the Supreme Court, in business cases, has held that “incorporation’s basic purpose is to create a legally distinct entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it employs.”

In recent constitutional law cases, however, the justices seem to have forgotten this basic principle of corporate law. In Citizens United, the court effectively held that corporations enjoyed the same free speech rights as ordinary individuals. Contrary to popular belief, however, the court did not base that holding on the idea that corporations are people. Instead, the justices said that corporations are “associations of citizens”—and those citizens who make up the corporation have constitutional rights.

Yes, Corporations Are People. And that’s why Hobby Lobby should lose at the Supreme Court., Adam Winkler, Slate, Mar. 17

Among the inundation of articles about Sebelius v. Hobby Lobby Stores, Inc.  and Conestoga Wood Specialties Corp. v. Sebelius in the months since the Supreme Court agreed to hear these cases–one, Hobby Lobby, in which the corporation won in the lower appellate court, the other, Conestoga Wood, in which the corporation lost–there are very among the ones I’ve read that make what I think is the critical point about these cases: the critical interplay between the Citizens United opinion and these two cases, and the reason why. It’s a point I made (or tried to) in a post on AB last fall, but Winkler is a constitutional law prof. at UCLA and, according to his mini-bio at the end of his slate article, he’s writing a book about the constitutional rights of corporations, so I was happy to read the paragraphs I quote above in an article published on a mainstream-media website.

For all the jokes about corporations attending church or being bar mitzvahed–yes, I plead guilty, but writing that post was so much fun!–the fact is that the corporations in those cases claim not that they are people but instead that they derive their First Amendment right to the free exercise of religion not from the state’s grant of corporate status but rather from the constitutional rights of its shareholders.  This argument–that corporations’ constitutional rights are derivative of their shareholders’ constitutional rights and therefore are not limited to, say, protecting the property that the corporation itself owns or to the ability to enter into business contracts on behalf of itself–comes courtesy of Citizens United, pure and simple.  Hobby Lobby and Conestoga Wood, unlike Citizens United, are for-profit corporations.  They both also are closely held, rather than publicly traded, corporations, and in both cases, the shareholders (members of a single family, in each case) are parties to the lawsuit along with the corporations themselves.

Mitt Romney’s ill-fated pronouncement that corporations are people, my friend, was funny, but it actually was an inarticulate adoption of Citizens United’s actual declaration: that corporations are “associations of citizens” whose members, as human individuals, have the familiar panoply of constitutional rights. One obvious problem with this derivative-constitutional-rights thing, though–albeit a problem that the Citizens United majority didn’t acknowledge–is that the individual shareholders of at least publicly-traded corporations don’t all hold the same political views.  Some shareholders are shareholders by virtue of participation in  large mutual funds, and others by dint of ownership in pension funds.  Some of them even in public-union pension funds!

Then again, at a recent oral argument at the Court in a case that, although it’s not an ACA  or religion case, I believe has implications for these two cases, Samuel Alito suggested that public unions are unconstitutional as a violation of … something. (Of his political views, I think.) If he prevails on this when that case, Harris v. Quinn, is decided, that would eliminate the problem of Democrats who are contributors to public union pension funds having Republican CEOs of mega-corporations serve as proxies to derivatively exercise the pension-fund contributor’s First Amendment speech rights. But the fact will remain that Democrats–who, contrary to Fox News reports, are people, my friend–have been known to own stock in large corporations, directly or through mutual funds or pension funds or some such.*

A seminal part of Citizens United, in other words, is its conflation of the CEO’s constitutional rights with those of the corporation’s–er, association’s–other citizens. The corporation itself may not be a person, my friend, but it derives its First Amendment rights from one (only one) of its citizen members.  Or, at least, only that one member serves as proxy on the derivative rights. (If the CEO is not a citizen, he or she can still serve as proxy for human members who are.) But what the plaintiffs are arguing in Hobby Lobby and Conestoga Wood is that these corporations derive their constitutional rights from all of these associations’ members: the family members who comprise the entire membership of this association of people.

The title of the Winkler article says that corporations are people.  By which he means, they are indeed associations of citizens.  Associations of citizens (and, probably, non-citizens) that, for purposes of healthcare insurance coverage, include the corporation’s employees. What Citizens United means in saying that corporations are associations of citizens is that the shareholders comprise an association of citizens whose proxy, for constitutional-rights purposes, is (apparently) its CEO.  But Citizens United did not address whether this association of citizens is necessarily limited to shareholders.  If corporations have constitutional rights derived from its individual members because they are associations of citizens, and if the association of citizens includes, by definition, employees as well as shareholders (no green-card holders or foreign shareholders allowed!)–and under Citizens United, there is no reason why it shouldn’t–then the act of incorporation itself confers derivatively to the corporation the constitutional rights of its employees.  Who have the constitutional right to have the same benefits of the ACA as similarly situated employees of other corporations.

Okay, my eve-of-oral-argument hunch is that the court will back away somewhat from its Citizens United claim that corporate CEOs can, in the name of the corporation, access the constitutional rights of citizen-association members.  The Court will find some way to segregate speech rights from other constitutional rights, and will rule against the plaintiffs in these two cases.  That’s because, well, apparently a slew of other associations of citizens–e.g., the business community at large–are making it known, including in amicus briefs to the court, that they’re downright scared to death of this end-to-the-corporate-veil/corporations-are-groups-of-citizens (who can be held individually responsible for their for-profit association’s liabilities) thing.

Or maybe they’re just scared to death at the thought of ExxonMobil or Amazon marauding through their towns bearing AK-47s in exercise of their derivative Second Amendment rights. It could be time for some for-profit associations of citizens to pray.

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*Paragraph edited after publication to correct a cut-and-paste error and to add the name of the referenced Supreme Court case, Harris v. Quinn.

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Oh, Stop, Matthew Yglesias. And COUNTLESS Pundits Like you.

That’s an enormous lowering of expectations, and a reminder to liberals about the formidable barriers to further expansion of the welfare state. The public has long been skeptical of the political system’s practical ability to do the things progressives say they want to do. A health care website that comes in months late, over budget, and still lacking full functionality confirms all those fears when it was initially meant to debunk them. And that’s true whether or not it in some sense “works.”

— Matthew Yglesias, Healthcare.gov Has Already Failed: Website problems won’t stop Obamacare, but they’ve already wrecked progressives’ ambitions. Slate, today

Yglesias was discussing the Obama administration’s statement yesterday that healthcare.gov is now working reasonable well in its capacity to handle log-ons.  The update, Yglesias said, tacitly acknowledged  that “‘t]he government, according to the people who run the government, shouldn’t be expected to do things well.”

That’s right, Matt.  What liberals have always wanted was a healthcare insurance website that works the way Amazon’s does.  They never really much cared whether healthcare insurance, and healthcare itself, was available to people who have a preexisting medical condition and don’t have an employer that provides group insurance, or who just plain can’t afford huge premiums. They just used that as a pretext to get the Amazon-like website, or to try to.

The government shouldn’t be expected to do things well.  If, by “things,” you mean websites.

Just wondering whether I’m the only one who is really, really tired of the punditry’s asinine conflation of means and ends–or, more specifically, of a website’s operations and access to medical insurance and medical care.  I doubt that I am.  I think it’s just that big-name pundits tend to conflate form and substance, because, well, that’s what big-name pundits do.

What a dumb blog post.  Yglesias’s, on Slate; not mine, here.

 

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What I agree with Richard Kahlenberg about on Schuette v. Coalition to Defend Affirmative Action. And what I don’t.

As Dan Crawford posted below, SCOTUSblog linked in its daily Round-up feature this morning to my AB post yesterday about Schuette v. Coalition to Defend Affirmative Action, which is being argued at the Supreme Court this afternoon. Dan posted the Round-up paragraph in which the reference appears.  It says:

Commentary on Schuette comes from Richard Kahlenberg, who in an op-ed for The Wall Street Journal argues that “[a] ruling in Schuette that promotes race-neutral strategies to boost minority admissions would reinforce the message the court tried to deliver last term in Fisher v. University of Texas but has largely fallen on deaf ears.” And at Angry Bear, Beverly Mann explains why she “expect[s] that the chief justice will vote to affirm a lower federal appellate court’s ruling in the high-profile affirmative action case that the Court will hear argument on tomorrow.”

I posted the following comment to Dan’s post:

Yikes. In reading that sentence that Amy Howe [of SCOTUSblog] quoted, I guess I better say that the rest of my post makes clear (I hope) that that sentence is facetious.

Facetious, it definitely is.  The chief justice will use, or try to use, this case to kill affirmative action in public higher education.

But after reading Dan’s quote of the SCOTUSblog paragraph, I decided to read the Kahlenberg op-ed in the Wall Street Journal.  Kahlenberg, the op-ed says, is a senior fellow at the Century Foundation, is author of “The Remedy: Class, Race and Affirmative Action,” published in 1996.

His op-ed is titled “A Fresh Chance to Rein In Racial Preferences.” And most of the article uses the University of Michigan/Ann Arbor as an example of why racial preferences per se as a state university admissions criterion are bad policy.  He argues instead for socioeconomic criteria, and identifies several major state universities that have used various tools to achieve some semblance of socioeconomic, and not-coincidendally racial, diversity.  U-M/Ann Arbor is not among them and has not even tried to be.

I couldn’t agree more.  On all points.  Anyone who spends so much as a couple of hours on or near campus on a weekday during the fall or winter semester would be struck by how almost-thoroughly white and upper-middle and upper-class the undergraduate, non-Asian student body is.  Denizens of Ann Arbor itself are not much into current-model upscale foreign-import cars–old Volvo station wagons and Detroit-made small and midsize cars are far more common–but walk through a student parking lot and you’ll probably see several of the he high end import variety.

And I can attest that this was so during the 2006-2007 school year, the last admissions year before the constitutional amendment at issue in Schuette became effective. Indeed, I recall a longtime U-M professor, then nearing retirement, lament how much the nature of the student body had changed since his early years teaching there in 1970s.  He said that back then, there was a feeling of real connection between the university and the Big Three automakers whose headquarters were only 40 miles or so away and whose manufacturing and design plants dotted the metro area, and the central part of the state, because so many of the students had parents or other family members who worked there.  Now, he said, the student body is almost all upscale. Macbooks outnumbered Windows-based laptops by, I’d guess, three to one.  And most of them were recent models.

Kahlenberg mentions the University of Florida/Gainesville as one of the public universities that has made a successful effort at socioeconomic and thus racial diversity in its undergraduate body. That is clear just from walking through the campus during the school year, as I did not long ago on a visit to North Central Florida. He also mentions UCLA, UC-Berkeley, the University of Georgia/Athens and the University of Texas/Austin. But he also could have mentioned Michigan State University, The University of Illinois.Champaign/Urbana, I believe, and the University of Wisconsin, I also believe.

What I suspect happened at U-M, although it’s just my speculation, is that in the wake of the Supreme Court’s two 2003 racial affirmative action programs, one case about U-M freshman admissions policies, the other about U-M law school admissions policies–both opinions which focused heavily on the legitimate state interest in racial diversity among its student body the university–the university began to focus almost entirely on racial diversity, but, as it happens, without a lot of success. Had the school ditched its alumni-legacy preferences, which Kahlberg points out, UCLA and UC-Berkeley did but U-M did not–and instead focused more on socioeconomic diversity, it probably would have been more successful at achieving racial diversity as part of the broader socioeconomic diversity.

But, for the reasons I explained (or tried to) in my post yesterday on Schuette, that case is not, in essence, an affirmative action case.  Kahlberg sort of acknowledges that.  He says:

At issue is whether voters can amend a state constitution to ban racial preferences by referendum, as Michigan voters did by 58%-42% in 2006. The Sixth Circuit Court of Appeals struck the measure down by an 8-7 vote in 2012, arguing that the amendment introduces an extra political hurdle for minorities. Whereas alumni can lobby the University of Michigan to strengthen legacy preferences for their children, the Sixth Circuit said, minority parents would need to amend the constitution to get racial preferences reinstated. “Such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change,” the court said.

This case is about whether a voter referendum can amend a state constitution in a manner that removes a particular type of group, or removes groups with a particular type of cause, from access to the normal democratic methods of lobbying elected or appointed officials–the legislature, a local governing body, the University’s Board of Regents.  That is what this case is about, and Kahlberg, unlike (surprisingly) Emily Bazelon in Slate yesterday, does not miss that point.  But he both says that he thinks the court will nonetheless use the case to kill affirmative action in public universities and urges the court to do that.  His justification:

Although minority voters cannot easily lobby to reinstate racial preferences in Michigan, they remain free to lobby for race-neutral programs that assist many minority students. These would include programs that help low-income students of all races—programs for more generous financial aid; for more community college transfers to the main campus of the University of Michigan in Ann Arbor; for an end to legacy preferences that disproportionately benefit white students; and for admitting students in the top of every high school class in the state.

Hey! They remain free to lobby for race-neutral programs that assist many minority students! Well, aren’t they lucky!  For now, anyway.

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The End of the Untouchables Era: The Coming End of Institutionalized Federal and State Judicial Abuse of Office [UPDATED]

Last Thursday (Jun. 27) I posted a piece here titled “Poetic Justice for Justice Alito.  Maybe.”, that discussed the concerted and deeply successful effort begun in the mid-1980s by the Reagan-era appointees to the federal appellate bench and continuing unremittingly since then, to invite virulent abuse of litigants and lawyers by judges—the more overt and ugly, the more the peer applause and emulation.  The occasion for my post was an article about Samuel Alito, by Mark Joseph Stern on Slate, which I linked to.

My post said Alito’s conduct was part and parcel of a defining characteristic and goal of the rightwing conservative legal movement of the last four decades—goal so thoroughly successful that it became, and remains, the norm among federal judges, irrespective of political affiliation.  Clinton appointees (including one who, twice, came precious-close to nomination to the Supreme Court by Obama) enthusiastically jumped on that bandwagon.

But there are two key facts that I decided not to mention in that post, and to instead leave for a later post: One is that state-court judges have, en masse, followed the lead of these federal judges.  The other is that that lead consists not only of now-routine denigration and defamation of litigants and counsel but also of jaw-droppingly in-your-face disregard of clear federal and state substantive and procedural law (including unequivocal statutory law).  A triumph of this juggernaut is that, regarding no-name litigants and no-name counsel, the more flagrant the deviation from unequivocal law, the cuter the judge feels. Abuse of office among judges—federal and (these days even more so) state judges—is deeply institutionalized now.

I’m posting this now (although I’m not much in the mood today) because of run75441’s post below from yesterday and because of a comment that reader Denis Drew posted to my Jun. 27 Alito piece. He wrote:

Get judges down to earth:
Just stand outside the courthouse — every courthouse — informing people: “If you don’t have to salute the flag, you should not have to rise when the judge walks in. Nobody will rise once they think of it. Game over.

I refused to remove my hat in an Illinois courtroom (the judge was not yet present — was a bully). I gave the court officer my little spiel and offered to explain to the judge when he came in (he didn’t ask).

I should have added: “If you think this is church, tell the ladies to put hats on (can they tell the ladies to take hats off?).

Gives me another pesky idea. Have “Freedom Hat Day”: hand out hats outside courthouses for the men to assert their First Amendment rights.

I call this “broken windows theory for cops and judges”: full application of First Amendment discipline — remind them they are no bigger than anybody else. Make them repair their small First Amendment misbehavior and you repair the lawless atmosphere that encourages more serious offenses.

I responded today in the Comments thread:

Exactly, Denis.  In writing this post, I considered saying also that state-court judges have, en masse, followed the lead of these federal judges, but I decided to leave that for a later post. The specifics are stunning and appalling.  The very essence of the American judicial system has changed dramatically in the last three decades.

This crowd of federal judges had for nearly three decades been regarded as untouchable.  But their unfettered, unquestioned, and under-the-public’s-radar-screen, at-will legal, ethical and moral freelancing may soon come with an actual price.  It was, and remains, great fun.  But times, I have reason to expect, are changing.  The judicial honorarium may soon cease to serve as license for the routine, joyful abuse of that little-scrutinized but profoundly powerful public office.  These folks may have to take up gardening or fishing instead as a hobby.

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UPDATE: In the Comments thread to this post, regular AB commenter and occassional AB contributor Dale Coberly posted a link to this breathtaking article on Alternet.  In response to Dale’s comment, I wrote:

Yes, this is a classic instance of something I’ve written about on AB several times now, including in one of my posts here last week: The Supreme Court’s bizarre several-decade juggernaut by which, in the name of states’ sovereignty, they foreclose access to federal court to enforce federal constitutional rights, however brazenly—and I do mean brazenly—denied by state-court judges in criminal and civil cases (e.g., family-law; adult-guardianship/conservatorship; various types of contract cases, including ones that harm small businesses such as franchisees and business-loan customers).

This 18-year-old should be able to file what’s known as a declaratory-judgment lawsuit in federal court asking for, and receiving, a declaratory judgment—a declaration of law pertinent to the facts—holding that this young man’s statements are protected under the First Amendment. Even though he’s not a corporation.  In the case of a criminal defendant, as this 18-year-old is, the issue is complicated by an outrageous federal “jurisdictional” statute enacted in 1996 and signed by Clinton just before his reelection bid to fend off soft-on-crime accusations, that in a juggernaut led by Anthony Kennedy (states’ sovereign dignity! By which he means state-COURTS’ sovereign dignity) is interpreted in ways that are clearly violative of the Fourteenth Amendment and the original Constitution’s writ of habeas-corpus clause. To the extent that the statute actually DOES bar a “collateral” declaratory judgment claim in federal court, it does violate those provisions of the Constitution.

That 1996 statute is, I think, finally— finally—very ripe politically for re-examination by a congressional coalition of progressives and Republican libertarians such as Rand Paul. I’d love to see this case get widespread attention; I certainly was unaware of it until now.  Maybe Justice Kennedy, if he learns of it, will give a moment’s thought to the dignity of this individual and whether under the ACTUAL Constitution, state court’s sovereign dignity really trumps individual dignity.

The Alternet article doesn’t say that his arrest was by local police and that he was charged in state, rather than federal, court, but that appears to be the case, and I’m assuming that it is.

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Poetic Justice for Justice Alito. Maybe.

U.C.-Berkeley law professor Goodwin Liu’s nomination to the Ninth Circuit Court of appeals was killed a couple years ago by Senate Republicans upon the pretext that Lui had trashed Alito to the Senate Judiciary Committee in testimony during Alito’s confirmation hearing.  Lui predicted that Alito as a justice would be exactly what Alito as a justice is.  Now that Lui’s prediction has proven spot-on*, Obama should nominate him, not for the Ninth Circuit but for Supreme Court upon Ginsburg’s retirement in a year or two.

It would be at least some small poetic justice for this justice.

But Alito’s demeaning, denigrating treatment of litigants and counsel is emblematic of a veritable hallmark of the Federalist Society-affiliated appellate judges.  Certainly not all of them do that, but also certainly, several high-profile Reagan/H.W. Bush-era appellate appointees have made that type of conduct a mark of peer prestige, and others, who don’t naturally have that personality—including some appointed by Clinton—emulate it.  Something about being in with the in-crowd.  It is, or at least for a long time was, the cool thing for them to do.

*The link is to a terrific article in Slate today by Mark Joseph Stern.  But credit also must be given to the Washington Post’s Dana Milbank, who in a column published earlier this week was, I believe, the first of the now-several commentators to report on this. 

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UPDATE: I posted a similar comment to Stern’s article in the article’s Comments thread on Slate.  In response, a commenter called Bigmouth wrote:

While I’d love to see Liu on the Supreme Court, I’d like to see the President pick fights he can actually win lol.

To which I responded:

This is one he would win if he chose to pick that fight. The high profile of the matter, coupled with the under-recognized importance of the generational change among voters–particularly the growing importance of the Millennials–and the overdue, very public highlighting of Alito’s votes and his conduct on and off the bench, would win it for Obama.

Not that I expect that lackluster, gutless wonder to actually pick this fight. But if he does, he’ll win it.

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The DOMA Opinion

Now the shoe is on the other foot, and it is time for the court to strike down a federal statute in order to advance a liberal policy goal rather than a conservative policy goal. Justice Scalia’s paean to the democratic process* in his dissent sounds a little hollow, coming in the wake of his votes to strike down affirmative action programs and Section 4 of the Voting Rights Act—both of them the result of the democratic process, as much as DOMA was. Meanwhile, none of the liberals pipe in to explain how to reconcile the outcome of this case with the concerns about democracy that they expressed in dissenting opinions in the other cases. (Ginsburg, in Shelby County: “That determination of the body empowered to enforce the Civil War Amendments ‘by appropriate legislation’ merits this Court’s utmost respect.”)

But this is a trite point, and never mind. The problem faced by opponents of DOMA is that there was no clear constitutional hook for striking it down. The Equal Protection Clause does not seem to apply because gay people (unlike, say, African-Americans) have not been regarded as politically weak enough to be a “suspect class,” justifying heightened review. That means that only a rational basis is necessary to uphold DOMA and a rational basis is easy to find (uniformity, efficiency, blah, blah, blah). The Due Process Clause does not seem to apply because that clause protects only rights that are rooted in history and tradition, and the right of same-sex marriage, however compelling a moral issue it may seem today, is not such a right. Federalism says that (under ill-defined conditions) the U.S. government cannot trump state law, especially in an area like family law, but in fact there are plenty of federal laws that regulate marriage, at least along the margins.

— Eric Posner, There was no clear constitutional reason to strike down DOMA, but the court did it anyway. Slate, today

I don’t understand why Posner thinks there is a conflict between the liberals’ position in Shelby County (yesterday’s 5-4 opinion gutting the Voting Rights Act) and their position in joining Kennedy in Windsor without reconciling the two.  Why does he think Ginsburg’s statement in Shelby County—“That determination of the body empowered to enforce the Civil War Amendments ‘by appropriate legislation’ merits this Court’s utmost respect.”—conflicts with Kennedy’s use of equal protection in Windsor?  DOMA surely was not intended to provide equal protection to same-sex couples.  And the liberals surely did not say in their dissent in Shelby County that democratically enacted laws are fine even if they violate constitutional equal protection guarantees.

And I’m not sure why Posner and many other commentators today complain that Kennedy’s opinion doesn’t identify the specific level of equal protection scrutiny that gay people are entitled to.  He establishes a separate, new class of people, including but not limited to gays, who are entitled to heightened equal protection: people targeted by laws or policies whose very intent and whose effect is to disadvantage them. “Discriminations of an unusual character especially require careful consideration” of the motive and effect–in other words, heightened equal protection scrutiny by the courts–he says.   That’s new, and not all that specific, but it’s certainly a level of scrutiny that’s different, and higher, than the rational-basis level of scrutiny. Kennedy clearly was saying that under this new type of scrutiny, there very much is a constitutional reason to strike down DOMA.

And I think it will play a role in next term’s affirmation action case challenging the constitutionality of 2006 successful Michigan ballot initiative that amended the state constitution to prohibit state-sponsored race-based affirmative action in employment and college admissions.  The Sixth Circuit Court of Appeals struck it down on the basis that, for equal protection purposes, constitutional amendments were different than ordinary legislation because the targeted groups can’t simply lobby the legislature to change the law; they must instead go through the lengthy, difficult and expensive ballot-initiative process.  The Supreme Court agreed to hear the case.  The case is Schuette v. Coalition to Defend Affirmative Action.  Linda Greenhouse had some interesting comments about it in the NYT a couple weeks ag0.

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*Scalia’s paean comes at the opening of his dissent.  He says, stupifyingly:

We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.

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