Supreme Court Politics

DonkeyHotey

It was a big -- and telling -- day at the high court even without the highly anticipated Affordable Care Act decision, which is now expected to be issued on Thursday.  As I wrote earlier, Justice Scalia's raving dissent about state sovereignty in the Arizona immigration case starkly illustrates that he is more of a political operative than an impartial judge.

And, not surprisingly, Scalia's obeisance to states' rights was nowhere in evidence in another case decided today, a case in which a 5-4  majority struck down Montana’s 100-year-old anti-corruption law banning corporate spending on elections without ever hearing arguments in the case.  As Nicole Flatow at American Constitution Society summarized:  "Although Montana’s law was intended to combat corruption in election spending, the five-justice majority held in a paragraph-long decision that this case was controlled by Citizens United, which found that independent expenditures by corporations 'do not give rise to corruption.'” 

Flatow points out that, "A supermajority of Montanans thought otherwise when they passed the Corrupt Practices Act in 1912," and as Justice Stephen Breyer wrote in his dissent, “Montana’s experience, like considerable experience elsewhere since the Court’s decision in Citizens United, casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do so.”
 
Breyer's dissent, joined by Justices Ginsburg, Kagan and Sotomayor, pointedly concluded as follows:

Were the matter up to me, I would vote to grant the petition for certiorari in order to reconsider Citizens United or, at least, its application in this case. But given the Court’s per curiam disposition, I do not see a significant possibility of reconsideration. Consequently, I vote instead to deny the petition. 

And there you have it.  As Amy Davidson notes, "Breyer is saying that he does not trust the majority enough to even listen, and would rather that it not hear the case at all; since he was joined by Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, that means the four of them didn’t believe that a single of the other five Justices had been at all chastened by the consequences of Citizens United."

And so, E.J. Dionne pleads:

Will everyone please finally admit conservatives actually don’t care a whit about states’ rights unless invoking states’ rights happens to be helpful to the conservative agenda? Conservatives on the court have become complete and utter hypocrites on the matter of what states can and can’t do.

This has stuck in my craw for a long time. Recall that the Supreme Court had absolutely no qualms about telling the state of Florida in 2000 that there was no way it could recount its votes in a fashion that would be satisfactory, and never mind that the Florida Supreme Court had ruled in favor of recounts. Those recounts might have gotten in the way of George W. Bush’s elevation to the presidency. Face it: If states’ rights are inconvenient to the outcome conservatives want, conservative justices will find a way to supersede them.

James Fallows recently wrote with regard to the Affordable Care Act case that "confidence in the very idea that the Roberts majority will approach this as a "normal" legal matter, rather than as one more Bush v. Gore front in the political wars, grows ever harder to maintain."

Which leads Ed Kilgore to draws what to me is the most critical lesson, whatever happens with the health care decision:

But it’s becoming more obvious each day that the judicial counter-revolutionaries of the Supreme Court don’t need the crisis atmosphere that they used to justify Bush v. Gore to continue its legacy. Indeed, it seems to have become the only precedent the majority reliably respects. Maybe they will surprise us all on Thursday and step back from the brink. But without question, if another seat on the Court falls their way, the constitutional substructure of every 20th century social accomplishment from the New Deal to the Civil Rights Act to the Clean Air Act to the right to an abortion is in immediate danger. And anyone who remembers that strange night in 2000 when the Court’s Republican appointees decided to seize the opportunity to choose a president should not be surprised.

Justice Scalia: The Opportunistic Originalist

By Jeremy Leaming, cross-posted from American Constitution Society

DonkeyHotey

We likely shouldn’t be surprised by Justice Antonin Scalia’s “flip-flop,” as TPM puts it, on precedent supporting modern understanding of the Constitution’s commerce clause.

TPM’s Sahil Kapur reports that in his forthcoming book, Scalia says the Supreme Court’s 1942 opinion in Wickard v. Filburn wrongly construed the scope of the commerce clause. As Kapur and many others have noted, including the Obama administration, Scalia cited Wickard in a 2005 opinion concluding that a law barring personal cultivation of marijuana for medical use was not beyond the scope of the commerce clause.

In that case, Gonzales v. Raich, Scalia lodged a concurring opinion, citing precedent in holding, “where Congress has the authority to enact a regulation of interstate commerce, ‘it possesses every power needed to make that regulation effective.’”

In an e-mail to TPM, constitutional law expert Adam Winkler wrote, “This is typical Scalia.”

Winkler, a law professor at UCLA, continued:

He respects precedents when they fit his conservative ideology and disregards them when they don’t. He claims that history should guide judges. But nothing about the history of the commerce clause has changed. What’s changed is the political implications of the commerce clause. When it’s being invoked for law and order conservatives, he favors Wickard. When invoked by liberals to support healthcare reform, he thinks Wickard is bad law.
Once again, we see that Scalia’s orginalism is a charade.

There is also the spectacle of oral argument, where Scalia not only revealed a wobbly understanding of the health care insurance system but affinity for the simplistic, but radically libertarian arguments lobbed against the Affordable Care Act’s minimum coverage provision. The minimum coverage provision is integral to the health care reform law, requiring those who can afford to do so to obtain a minimum amount of the health care coverage starting in 2014.

The provision was quickly attacked by the Right as a dire threat to liberty. If the government were able to require many indiviuals to purchase health care insurance, then surely it could also force individuals to buy broccoli and gym memberships, the law’s opponents argued.

Why Are We Spending So Much To Lock Up Elderly Prisoners Who Pose Little Threat?

By Inimai M. Chettiar and Vanita Gupta, cross-posted from American Constitution Society

Elderly prisoners are the least dangerous group of people behind bars but the most expensive to incarcerate. Yet despite this truth, the number of elderly prisoners is skyrocketing. Harsher sentencesfor less serious crimes – one defining characteristic of our failed “tough on crime” and “war on drugs” policies – are responsible for this staggering increase in the number of older prisoners, and taxpayers are taking the hit.

You may be shocked to learn how much money states are dumping into housing aging prisoners who pose little safety risk. Today the American Civil Liberties Union released a report, “At America’s Expense: The Mass Incarceration of the Elderly,” which details the growth of our aging prisoner population, the low public safety threat elderly prisoners pose and the fiscal impact of incarcerating them. Strikingly, the report estimates that the average aging prisoner costs taxpayers about twice as much as the average prisoner.

The report is co-authored by the ACLU’s fiscal policy analyst and in-house economist, Will Bunting. He conducted a fiscal impact analysis, weighing the cost of incarcerating the average aging prisoner against the burden releasing that same prisoner would impose on public benefit programs. Even taking into consideration the cost of state payments for Medicaid, supplemental security food stamps, energy assistance, and other public assistance benefits, the report estimates that states could save $66,000 per year for each aging person released from prison. To put this number in context, the average American household makes $40,000. The money thus saved could be redistributed to more worthwhile and cost-effective state goals like education and infrastructure.

A look at the grander scheme of things is even more startling: in 1988, the United States spent about $11 billion on the entire corrections system. Today, we spend about $16 billion annually on the aging prisoner population alone.

As the number of prisoners in the United States climbs ever higher, the number of aging prisoners is climbing even faster. Between 1980 and 2010, the total number of people incarcerated in this country grew by 400 percent. In that same timespan, the population of prisoners age 55 and older grew by nearly 1,400 percent. At the current rate of growth, the number of prisoners age 55 and older will have increased 4,400 percent from 1981 to 2030 and will make up fully a third of the nation’s prison population.

The increase in the number of aging prisoners is not due to a spike in the number of crimes committed by older people. There is no “elderly crime wave.” And contrary to popular belief, older prisoners aren’t more likely to have committed a serious crime. Rather, many elderly prisoners are incarcerated for crimes committed in their youth for which they received disproportionately long sentences, and many elderly prisoners are in prison for nonviolent crimes. The current mentality of “lock ‘em up and throw away the key” has led lawmakers to impose exceedingly harsh penalties on individuals who commit low-level offenses, ensuring that they stay behind bars well into age and often until they die. The adage “let the punishment fit the crime” has given way to a reign of disproportionality in sentencing that is nothing if not cruel and unnecessary.

For instance, in California, Leandro Andrade, a father of three, received a mandatory sentence of 25 years to life in prison for two counts of shoplifting children’s videotapes valued at $153. He had two prior offenses for misdemeanors. In Mississippi, Atiba Parker was sentenced as a habitual offender to a total of 42 years in prison for selling a total of .3 grams and possessing less than .1 grams of crack cocaine. And also in Mississippi, the now-famous Scott sisters, Jamie and Gladys, were sentenced to two consecutive life terms for a robbery in which they stole $11 when they were teenagers.

Like many aging prisoners, Andrade, Parker and the Scott sisters are caught in the net of our extreme sentencing laws enacted since the mid 70’s. Politicians over the last quarter-century have held strong to the conventional wisdom that being "tough on crime" will win elections and appease the public's appetite for safety. To alleviate the public's overblown fear, or even to slake a thirst for retribution, our lawmakers have increasingly deemed more private acts criminal and doled out harsher punishments for a generation. Law enforcement has selectively enforced these laws against the "feared" Black and brown communities. In the end, we’re left with a massive, unsustainable prison population – and equally unsustainable aging prison population – unlike anything the world has ever seen.

If aging prisoners posed a serious threat to public safety, the costs of incarcerating them might be justified. But aging prisoners are in fact highly unlikely to commit new crimes upon release. Research has conclusively shown that by age 50 most people have significantly outlived the years in which they are most likely to commit crimes. For example, arrest rates drop to just over 2 percent at age 50 and are almost nil at age 65. In other words, there is no value to the continued incarceration of a large majority of our aging prisoners.

Today’s report provides a number of recommendations to legislators and correctional leaders interested in meaningful reform. Given the fact that public opinion is shifting toward a desire for fewer people in prison, the time to implement these reforms is now. The longer term solution requires political will to redesign our extreme sentencing regime to reintroduce proportionality, and repeal or reform habitual offender, mandatory minimum and truth-in-sentencing laws. A more immediate recommendation is for states to empower parole boards to determine which aging prisoners are worth the cost of continued incarceration because they pose grave public safety threats and which are not and can be safely released. In 2011, a bipartisan coalition in Louisiana passed just such a reform measure; if Louisiana – which leads the nation in incarceration – can take these steps, other states can surely follow suit.

In today’s hobbled economy, legislators cannot continue wasting taxpayer dollars by turning our prison system into a vast complex of nursing homes. It is a moral and fiscal imperative to stem the explosion in the aging prisoner population. Aging prisoners pose little threat to the public’s safety and incarcerating them is breaking our collective bank. Furthermore, it is inhumane to keep people locked up when there is no compelling societal justification to do so. The tools for grappling with this crisis are well within reach of legislators around the nation and the time for reform has arrived.

Inimai M. Chettiar, Policy Counsel, and Vanita Gupta, Deputy Legal Director, at the American Civil Liberties Union. Ms. Gupta directs the ACLU’s Center for Justice and its Safe and Fair Initiative to End Overincarceration. Ms. Chettiar serves as national legislative counsel coordinating the Initiative, and is incoming Director of the Justice Program at the Brennan Center for Justice at NYU School of Law.

Justice Stevens' Reasoned Takedown Of Citizens United

By Jeremy Leaming, cross-posted from American Constitution Society

At some point perhaps soon the U.S. Supreme Court’s conservative wing will have to reckon with some of its sweeping assertions in its controversial 2010 Citizens United v. FEC majority opinion.

Retired Supreme Court Justice John Paul Stevens in a methodical, thoughtful speech at the University of Arkansas Clinton School of Public Services detailed why he thinks some of the holding in Citizens United is due for reconsideration.

Stevens’ former colleague Justice Samuel Alito mouthed “not true” during President Obama’s 2010 State of the Union address when the president said Citizens United could “open the floodgates for special interests – including foreign corporations – to spend without fault in our elections.”

But the majority opinion, Stevens said “placed such heavy emphasis on ‘the premise that the First Amendment generally prohibits the suppression of political speech based on the speaker’s identity.’”
“Indeed,” Stevens continued, “the opinion expressly stated, ‘We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers.’”

Stevens said:

Given the fact that the basic proposition that undergirded the majority’s analysis is that the First Amendment does not permit the regulation of speech – or of expenditures supporting speech – to be based on the identity of the speaker or his patron, it is easy to understand why the president would not have understood that ambiguous response to foreclose First Amendment protection for propaganda financed by foreign entities.
But Justice Alito’s reaction does persuade me that in due course it will be necessary for the Court to issue an opinion explicitly crafting an exception that will create a crack in the foundation of the Citizens United majority opinion. For his statement that it is ‘not true’ that foreign entities will be among the beneficiaries of Citizens United offers good reason to predict there will not be five votes for such a result when a case arises that requires the Court to address the issue in a full opinion.

The former justice, the third longest serving justice on the high court, also pointed to an opinion, one he joined, that followed Citizens United. In Holder v. Humanitarian Law Project, the majority held that Congress can bar material support of terrorist groups, even if that support is advice on how to conduct peaceful protests.

“As Justice Breyer correctly noted,” Stevens said, “the proposed speech at issue was the kind of political activity to which First Amendment ordinarily offers its strongest protection. Nevertheless, under the Chief Justice’s opinion, the fact that the proposed speech would indirectly benefit a terrorist organization provided a sufficient basis for denying it First Amendment protection.”

So while the Citizens United majority claimed that political speech must receive sweeping protection regardless of the identity of the speaker, it looks as though the majority is going to have to start creating some categories here.

“Could the Court possibly conclude that expenditures by terrorist or foreign agents in support of a political campaign merit greater First Amendment protection than their actual speech on political issues? I think not. Indeed, I think it likely that when the Court begins to spell out which categories of non-voters should receive the same protections as the not-for-profit Citizens United advocacy group, it will not only exclude terrorist organizations and foreign agents, but also all corporations owned or controlled by non-citizens, and possibly even those in which non-citizens have a substantial ownership interest.”

Stevens provided more explanation of why he thinks Congress will be able to “impose more restrictive limitations on campaign speech than on issue advocacy.” See his entire remarks here, made available by The Huffington Post.

As The Huffington Post’s Mike Sacks notes and this blog has too the high court may have another vehicle to reconsider the sweeping majority opinion in Citizens United.

Last year the Montana Supreme Court upheld its longtime Corrupt Practices Act, a tough regulation of corporate financing of its elections. In doing so the Montana Court blasted the Citizens United majority opinion, and said it did not mean the state had to dump its strong campaign finance law. The justices may consider to review the case, and numerous public interest groups are encouraging the Supreme Court, if takes the case for review, to curtail its sweeping assertions advanced by the Citizens United majority.

North Carolina Embraces Discrimination

By Jeremy Leaming, cross-posted from American Constitution Society

The North Carolinians who voted to alter the state’s constitution to ban same-sex marriage were largely moved by fear-tactics fueled by far right religious groups bent on punishing lesbians and gay men. The vote also makes North Carolina, as The New York Times notes, the last state in the South to marginalize gay people with a constitutional ban on same-sex marriage.

Until yesterday’s vote, a string of states had provided victories for marriage equality. (In February, Maryland joined seven other states and the District of Columbia in approving same-sex marriage.) North Carolinians, however, were fueled by an ugly animus toward gay people. Not only did the state’s constitutional amendment ban same-sex marriage it is so vaguely worded that many commentators have argued that it would outlaw domestic partnerships or civil unions.

A group of North Carolina family law professors warned voters about the scope of the antigay amendment.

Maxine Eichner, a law professor at UNC School of Law, in a video focusing on the sweep of Amendment One, said, the amendment would “certainly ban civil unions, it would ban domestic partnerships at the state level, and it would also ban the domestic partner insurance benefits that a number of municipalities and counties currently provide to their employees.” (Eichner is author of an ACS Issue Brief on the Employment Non-Discrimination, aimed at banning employers from discriminating against workers or potential employees based on their sexual orientation or gender identity.)

The Daily Beast blogger Andrew Sullivan in a post dubbed “The Politics of Spite,” slammed the reach and impact of the vote:

Remember how meretricious this assault on gay couples was. They already are banned by state law from marrying. Now their own state constitution bans them from any civil rights as couples whatsoever: no domestic partnerships, no civil unions, nothing. It’s an act of pure punishment of citizens who are gay, a deliberate psychological blow to their self-esteem, their sense of citizenship, their core equality as human beings. A 60 percent majority decided that 2 percent of their fellow citizens are and must remain inferior in law. When gay rights advocates seek recourse in the courts, is it so surprising?

Sullivan noted the involvement of the so-called National Organization for Marriage, a Religious Right outfit that has spent boatloads of money and many years on demonizing gay people and promoting bigotry. The group claims it does not advacne bigotry, but instead protects "marriage and the faith communities that sustain it."

President Obama, who has not embraced marriage equality, but whose administration has stopped defending the so-called Defense of Marriage Act (DOMA) in court and ended the military’s “Don’t Ask, Don’t Tell,” policy said he was “disappointed” in North Carolina’s vote. (DOMA is a Clinton-era federal law that discriminates against lesbians and gay men.) Later today, the president is expected to address gay marriage in an interview with ABC News, according The Huffington Post’s Michael Calderone.

Regardless of what the president thinks of same-sex marriage, the battle to advance equality will continue to be waged largely in the states.

University of Minnesota Law School Professor Richard Painter in a post for Legal Ethics Forum notes the forthcoming battle in his state to ban same-sex marriage, writing, in part, “Most of our law faculties oppose it, at some law schools unanimously. Unlike North Carolina, Minnesota was not one of the original thirteen colonies to fight for liberty in the 1770s, but hopefully this fall we will demonstrate a better understanding of what the continuing fight for liberty is all about.”

Whether other states refuse the despicable path that North Carolina voters took, will depend on lot on whether their voters refuse to be divided and swayed by the hateful rhetoric and strategy that emanates from groups like the National Organization for Marriage.

Judicial Activism: Right Wing Edition

Judge Janice Rogers Brown

Whatever disappointments the left may have with President Obama, it must be understood how devastating a Romney Presidency would be in terms of the Supreme Court (and lower federal courts) and the preservation of fundamental rights, liberties and democratic principles.  (See Supreme Court Matters; Romney Gets Borked.)  

Janice Rogers Brown was an extreme right wing justice on a very right wing California Supreme Court from 1997 to 2005, when she was appointed to the U.S. Court of Appeals for the D.C. Circuit by President Bush, where she currently sits.  Rogers Brown, who has been known to trumpet Ayn Rand and decry Supreme Court decisions upholding the New Deal as "the triumph of our own socialist revolution," is precisely the kind of judge likely to be nominated by the next Republican president.  Professor Adam Winkler cites a recent Brown opinion to illustrate why this should scare us into action.   -- Lovechilde

Startling Conservative Judicial Opinion Should Motivate Progressives

By Adam Winkler, cross-posted from American Constitution Society

The age of judicial activism - err, I mean "judicial engagement" - is upon us. Having realized that they don't always win with voters, leading conservatives are abandoning their traditional emphasis on judicial restraint and respect for the decisions of democratically elected officials. After years of berating liberal judges for overturning laws in the name of controversial constitutional principles, conservatives are now embracing the notion of an active, "engaged" judiciary.  Only they want one that aggressively protects those rights conservatives prefer: property rights, rights of religious expression, the liberty of contract, the right not to buy broccoli - regardless of decades of established case law.

For evidence of this trend, one need not look further than startling concurring opinion by D.C. Circuit Judge Janice Rogers Brown in Hettinga v. United States. Brown, who is often mentioned as a potential Supreme Court nominee in a Republican administration, used her opinion to audition for a leadership role in this new movement. The time has come, she wrote, to end the pernicious practice of allowing legislatures to regulate the economy. "America's cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s." The proof? The "Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to adopt whatever economic policy may reasonably be deemed to promote the public welfare."

Besides Brown’s Bizarro world premises in which things like consumer protection laws harm consumers, her ode to the Lochner era reminds us of the importance of judicial appointments. For decades, Republican presidents have used the lower federal courts as a farm team for the Supreme Court, smartly filling positions with potential stars to see how they perform. This is a smart strategy, though one Democrats haven’t followed. Instead, Democratic presidents have tended to name competent, diverse people who aren’t likely to be controversial. But in the current political climate, even these clear consensus nominees are held up in the Senate, leaving the federal courts with a critical number of vacancies and a troubling imbalance in our courts. To counter the newly “engaged” judicial conservatives like Brown, legal liberals need to be fighting for judges, particularly those judges with the intellectual fortitude to go toe-to-toe with the leading lights of conservative constitutionalism. Respect for our Constitution and settled precedent demands nothing less.

The 65th Anniversary Of Jackie Robinson's Debut

By John Schachter, cross-posted from American Constitution Society

To many wise people, baseball possesses an importance beyond the comprehension of non-fans. Emotions and moods ebb and flow with the fate of our favorite teams. Baseball lingo fills our conversations, as we talk about a ballpark figure, a whole new ballgame, playing hardball, covering all the bases, stepping up to the plate and hitting it out of the ballpark. Or someone batting a thousand or being off base, something being bush-league or inside baseball. And, of course, people invoking the infield fly rule because of a routine and playable, if fair, pop-up in the infield with less than two outs and the bases loaded or runners on second and third. (OK, maybe that’s not as common.)

But baseball as hobby, diversion and pastime is merely one aspect of the game. The sport is sometimes so much more, a reflection of our times and our society, for better and for worse. This Sunday, April 15, will be a reminder of one of those “for better” examples. That day will mark the 65th anniversary of Jackie Robinson breaking the so-called color barrier and making his major league baseball debut. Teams and fans across America will celebrate Jackie Robinson Day to pay tribute to the son of Georgia sharecroppers who grew up to become an incomparable leader and symbol of civil rights challenges and advancement.

Humorist Dave Berry once pinpointed what he saw as a critical difference between the sexes. “If a woman has to choose between catching a fly ball and saving an infant's life,” Barry remarked, “she will choose to save the infant's life – without even considering if there are men on base.” While men and women may quibble over various aspect of the sport, there is virtual unanimity when it comes to recognizing the magnitude of Jackie Robinson’s role.

The Major League Baseball tribute to Robinson on his day includes all players wearing his uniform number 42, which has otherwise been retired by all teams. The league website devotes a page to Robinson’s story and his “immeasurable impact” on the game and beyond. The page salutes Robinson’s courage, commitment, determination, teamwork, persistence, integrity, citizenship, excellence, and quest for justice. Countless other adjectives could further describe Robinson.

Robinson’s career numbers are impressive enough. A .311 batting average, an on-base average of .409, nearly 200 stolen bases, a Rookie of the year Award in 1947 and a Most Valuable Player Award two years later when he hit a career-high .342 to go with 203 hits, including 38 doubles, 12 triples, 16 home runs, plus 124 runs batted in. But, of course, Jackie Robinson is so much more than his stellar statistics.

“If Jim Crow seems distant today, it is because of men like Robinson,” wrote Chris Lamb, a professor of communication at the College of Charleston. “We need to remember him for what he accomplished inside the white lines of baseball, but we also need to remember him for what he accomplished outside. His life teaches us that progress often depends on individuals willing to sacrifice themselves for something bigger.”

Few people can imagine the contemptible abuse Robinson faced when he joined the Dodgers, from fans, opponents, and even some teammates. Aside from the on-the-field challenges of beanballs and high-flying spikes aimed his way, Robinson had to deal with a steady flow of death threats in nearly every city to which the team traveled. But Robinson rose above the hatred and proved his critics and detractors wrong. His success made him an All-Star player and civil rights leader.

“There's not an American in this country free until every one of us is free,” Robinson said. He knew his success was but a small step toward a much grander goal. “The right of every American to first-class citizenship is the most important issue of our time.” Some 65 years after Robinson set foot upon his first major league field, the fight for freedom for all people continues. But thanks to his efforts along the way, we all have that much less to travel to see our ultimate goals achieved.

Robinson died far too early, at the age of 53 in 1972. He’s buried in Brooklyn next to his son and mother-in-law. His gravestone reads, “A life is not important except in the impact it has on other lives.”

John Schachter is the Vice President of Public Education and Outreach for American Constitution Society 

Bend Over America: SCOTUS OK's Strip Searches

DonkeyHotey

Albert Florence was in the passenger seat of his BMW when a state trooper pulled his wife over for speeding. A records search revealed, incorrectly as it turned out, that he had an outstanding warrant based on an unpaid fine.  Mr. Florence was handcuffed and taken into custody.  Florence was held for a week at two separate New Jersey county jails, and strip-searched at each one.

(In a podcast produced by the American Constitution Society and the National Constitution Center, Florence tells the story of his arrest in front of his pregnant wife and four-year-old son, and his subsequent treatment at the two detention facilities.)

An outrageous affront to human dignity, right?  An obvious violation of personal privacy?  With jails admitting more than 13 million inmates a year, are we really going to sanction strip searches for even the most minor offenses?

Yesterday, in a -- say it with me -- "5-4 decision," the United States Supreme Court held that corrections officials may strip search people who are arrested for all offenses, including those not involving drugs or violence, and without any suspicion that they may be hiding contraband.

Justice Kennedy, who wrote the majority opinion, was loathe to "second-guess the judgments of correctional officials," while Justice Breyer wrote in dissent that "there was very little empirical support for the idea that strip-searches detect contraband that would not have been found had jail officials used less intrusive means, particularly if strip-searches were allowed when officials had a reasonable suspicion that they would find something."

Breyer also took note of a number of other instances documented in amicus briefs submitted in the case in which "individuals arrested for minor offenses have been subjected to the humiliations of a visual strip search”:

They include women who were strip-searched during periods of lactation or menstruation. They include victims of sexual violence. They include individuals detained for such infractions as driving with a noisy muffler, driving with an inoperable headlight, failing to use a turn signal, or riding a bicycle without an audible bell.

The ACLU warned that the decision "jeopardizes the privacy rights of millions of people who are arrested each year and brought to jail, often for minor offenses."  ACLU legal director, Steven R. Shapiro, stated:

Being forced to strip naked is a humiliating experience that no one should have to endure absent reasonable suspicion. Jail security is important, but it does not require routinely strip searching everyone who is arrested for any reason, including traffic violations, and who may be in jail for only a few hours. 

Amy Davidson writes about the cluelessness of Justice Kennedy and his Gang of Five ("What does the Supreme Court know about naked bodies? What is more important, according to a five-four decision Monday, is what the Justices think a law-enforcement officer might learn from strip-searching anyone who has been taken into their custody for any reason at all.")

Davidson makes another great point:  "If jails are such a dangerous morass, the sort of place one can’t enter without a squatting ritual, why are we sending so many millions there, and for what?"

More GOP Follies On Judicial Nominees

There are 84 vacancies on the federal courts -- almost double the rate of vacancies by this point in George W. Bush's first term.  To understand why we need look no further than the "long and obstruction filled road" of the newest judge, Adalberto Jose Jordán, who eventually was confirmed by a vote of 94-5 for a seat on the 11th Circuit Court of Appeals.

Jordán was hardly controversial.  He was rated unanimously well qualified by the American Bar Association and cleared the Judiciary Committee with unanimous support.  Nevertheless, his nomination was pending on the Senate floor since before the December recess, and the Senate opted not to schedule a vote on his nomination.  It was then that Senate Majority Leader Harry Reid filed a motion to force a vote on his nomination, and an overwhelming majority of senators voted in favor of the motion.

As Nicole Flatow at American Constitution Society explains, here's what happened next:

Sen. Rand Paul, seeking to gain leverage for an unrelated proposal to cut off aid to Egypt until detainees are released, exploited a procedural rule and refused to consent to a vote before the permitted 30 hours for “debate” had lapsed.

While the Senate waited for the 30 hours to elapse, several other pieces of legislation were held up.

“Paul wants to send a message to his colleagues about Egypt and American foreign policy -- and he's doing it by adding one wrong on top of another,” wrote Andrew Cohen of The Atlantic.

The Washington Post’s Dana Milbank said of the hold-up:

Congressional staffers I checked with couldn’t recall a similar instance of blocking a confirmation even after a filibuster had failed. This would seem to be a unique humiliation for a man hailed by the Hispanic National Bar Association because of “the positive message this nomination sends to the Latino community.

Two days later, the Senate confirmed Jordán just as overwhelmingly as they had voted to end the filibuster of his nomination, by a vote of 94-5.

Gail Collins provides a more facetious summary:

This week, the Senate confirmed Judge Adalberto Jose Jordan to a seat on the federal Court of Appeals for the 11th Circuit in Atlanta. A visitor from another country might not have appreciated the proportions of this achievement, given the fact that Jordan, who was born in Cuba and who once clerked for Sandra Day O’Connor, had no discernible opposition.

But Americans ought to have a better grasp of how the Senate works. The nomination’s progress had long been thwarted by Mike Lee, a freshman Republican from Utah, who has decided to hold up every single White House appointment to anything out of pique over ... well, it doesn’t really matter. When you’re a senator, you get to do that kind of thing.

This forced the majority leader, Harry Reid, to get 60 votes to move Judge Jordan forward, which is never all that easy. Then there was further delay thanks to Rand Paul, a freshman from Kentucky, who stopped action for as long as possible because he was disturbed about foreign aid to Egypt.

All that is forgotten now. The nomination was approved, 94 to 5, only 125 days after it was unanimously O.K.’d by the Judiciary Committee. Whiners in the White House pointed out that when George W. Bush was president, circuit court nominations got to a floor vote in an average of 28 days.

No matter. Good work, Senate! Only 17 more long-pending judicial nominations to go!

This was the eighth time Reid was forced to take the extreme measure of filing a motion for cloture to force a vote on one of President Obama's judicial nominees.  He has just done it again, to force a vote on federal prosecutor Jesse Furman, another consensus nominee who was approved by the Judiciary Committee for a seat on the Southern District of New York without opposition.

Patrick Leahy, the Senate Judiciary Committee Chairman issued the following statement:

Like the needless delay in Judge Jordan’s confirmation, the Republican filibuster of Jesse Furman, who by any traditional measure is a consensus nominee, is another example of the tactics that have all but paralyzed the Senate confirmation process and are damaging our Federal courts.  It should not take five months and require a cloture motion for the Senate to proceed to vote on this nomination.  At a time when nearly one out of every 10 judgeships is vacant and we have over 20 judicial nominations reported favorably by the Committee, 16 of which have been stalled on the Senate calendar since last year, nearly all of them superbly-qualified consensus nominees, our Federal courts and the American people cannot afford more of these partisan tactics.

 As Kurt Vonnegut used to say, "and so it goes."

The Legacy Of Derrick Bell

By Inimai Chettiar, cross-posted from American Constitution Society

Professor Derrick Bell, who passed away on Wednesday, was a racial justice pioneer and teacher who enlightened many. His actions spoke as loudly as his words and influence the work we do today at the ACLU. He was the first black law professor at Harvard Law School, yet in 1990 he vowed to take an unpaid leave of absence until the school hired a black woman for its tenured faculty. That didn’t happen until 1998, and by then Bell had moved on to NYU Law School, where he remained until the end of his career.

It is groundbreaking scholarship like that of Professor Bell that gives life to the ACLU’s current work. In his book, Faces at the Bottom of the Well: The Permanence of Racism, he described, among other things, the forces that prevented Harvard from hiring black women as tenured law professors. Professor Bell (pictured) was not afraid to state the truth: that structural and insidious racism pervades our society, institutions, and thinking. He pioneered the development of critical race theory – which recognizes that racism is embedded deep beneath the surface of our laws and legal institutions. He explained that, even where there is no de jure segregation or explicit racism, there are often far more harmful subtle forces that hinder access to equality and result in de facto segregation.

In order to understand the structural nature of racism, we need to follow Professor Bell through the proverbial “looking glass.”  Things aren’t always what they seem. The work of Bell and other scholars showed that, in order to achieve true racial equality, it’s insufficient to eliminate de jure segregation laws if the majority of our institutions continue to be created by, for, and around heterosexual white men of privilege. When our societal or legal “norm” automatically leaves out women and people of color, it may look like these groups are asking for a handout or an “unfair advantage” when what they are really asking is to be included in the creation of our institutions and laws.

Take, for example, Judge Richard Posner’s criticism of the signature use of narrative and allegory in the legal writing of Professor Bell and other critical race theorists. Judge Posner argued that “by repudiating reasoned argumentation, the storytellers reinforce stereotypes about the intellectual capacities of nonwhites.” The very notion that “reasoned argumentation” is somehow intellectually superior to narrative and allegory as a means to explain legal theory is embedded in racism. (Not to mention that Plato - a father of Western philosophy - wrote in allegory.) Critical theorists explain that our entire system of legal education and scholarship was built by and for white men of privilege. Others are forced to fit these so-called “objective” academic criteria, or else be branded as not smart enough. But criteria for what makes someone the “best” cannot be objective when it is decided by the preferences of those in power.

Professor Bell eloquently identified and challenged the underlying inequalities that keep black Americans and other marginalized groups “at the bottom of the well.” These inequalities are reinforced by policies that provide inadequate resources to inner-city schools populated with poor black children, criminalize children’s behavior in these schools, fail to provide families with affordable healthcare, make healthy foods prohibitively expensive, selectively enforce drug policies in communities of color, strip away our voting rights, and build housing projects in environmentally unsound areas. The law doesn’t become race neutral just because it doesn’t mention race. It only becomes race neutral when it accounts for and corrects its disparate impact on people of color, and is built by and for all of us.

We are far from living in a post-racial society, and Professor Bell knew that. In 1992 he put forward the notion that black Americans were worse off and more subjugated then than at any time since slavery. Startlingly, right now this country controls more black men through our incarceration system than it ever enslaved. Black Americans continue to live unequal lives and have unequal futures, but yet society clings to the notion that racism no longer exists simply because the law no longer mentions race. A false belief in a post-racial society is dangerous and will prevent us from achieving true equality.

Had it not been for Professor Bell’s courage – the courage to walk away from jobs in protest, the courage to loudly state that racism remains, and the courage to continue to speak the unpopular truth until the end – racial justice advocacy would be far behind where it is today. We draw strength from his courage and hope to carry on his struggle with our work against structural racism in our education, healthcare, employment, voting, immigration, and criminal laws. As the ACLU fights on, we stand on the shoulders of this giant.

Inimai Chettiar, policy counsel for the ACLU’s Center for Justice, and Courtney Bowie, senior staff attorney for the ACLU's Racial Justice Project

The Framers' Constitution: Exposing Conservative Myths And Reframing The Debate

Judicial activism has been described as "legislating from the bench," and reaching rulings that substitute a judge's personal views for those of the democratically elected branches of government.  Conservatives have been remarkably successful in branding as judicial activist rulings they don't like, particularly those that have upheld rights of criminal defendants and civil plaintiffs, and protected privacy and individual liberty.  Now that they can claim a large majority of the judiciary, they have embraced their own right wing version of judicial activism, while the public nevertheless continues to accept the conservative framing of the issue.

Thus, as Republicans continue to obstruct judicial nominees they deem too activist, conservative judges, as E.J. Dionne has written, are overturning "decisions made by democratically elected bodies in areas such as pay discrimination, school integration, antitrust laws and worker safety regulation."  The current Supreme Court, as the Times wrote back in 2007 uses judicial activism in service of conservative ideology.  And, as Dionne put it,"[i]f anyone doubted that the Supreme Court's current conservative majority wants to impose its view no matter what Congress or state legislatures decide -- or what earlier precedents held -- its decision in the Citizens United case should end all qualms."

The American Constitution Society, via Professors Geoffrey Stone and William Marshall, has provided the intellectual heft to begin the dismantling of the conservative constitutional narrative, which they explain is "deeply unprincipled and patently wrong," while articulating "a principled approach to constitutional interpretation that is true to the vision of the Framers and their understanding of both the Constitution and the distinctive and essential role of courts in the interpretation and enforcement of the Constitution."

Stark Picture Of Judicial Vacancy Crisis

By Nicole Flatow, cross-posted from American Constitution Society

Although many prominent legal leaders, editorial boards and commentators have long lamented the high number of judicial vacancies plaguing our courts, it is not easy for those removed from the process to understand how judicial nominations work, and what impact these empty seats  have on our justice system.

The White House has put together a new infographic that paints a powerful picture of the nature of Senate obstruction of judicial nominees, and highlights Obama’s efforts to diversify our federal courts.

Gun Rights And Justice Scalia's Brush With The Living Constitution

By Nicole Flatow, cross-posted from American Constitution Society

Justice Antonin Scalia may be the Supreme Court’s “ultimate originalist,” but when it comes to the Second Amendment, he has recently embraced a living Constitution, UCLA law professor Adam Winkler suggests in a column for The Atlantic adopted from his forthcoming book, Gunfight: The Battle Over the Right to Bear Arms in America.

In his article, Winkler traces the surprising and contradictory history of the U.S. right to bear arms, starting with the Founding Fathers’ own version of an “individual mandate” that required many citizens to purchase guns, while forbidding gun ownership for slaves, free blacks, and “law-abiding white men who refused to swear loyalty to the Revolution.”

The National Rifle Association, founded as an organization to improve American soldiers’ marksmanship, was “at the forefront of legislative efforts to enact gun control” in the 1920s and 1930s, and only shifted to become a “lobbying powerhouse committed to a more aggressive view of what the Second Amendment promises to citizens” in 1977, Winkler explains.

In light of this history, Scalia’s 2008 opinion in District of Columbia v. Heller, striking down a D.C. gun-control law, but explicitly leaving intact a host of other limitations on the right to possess firearms quite different than those contemplated by the founders, “is a fine reflection of the ironies and contradictions—and the selective use of the past—that run throughout America’s long history with guns,” Winkler concludes.

Balancing Government Budgets While Promoting Justice: Break Our Addiction To Incarceration

By Inimai M. Chettiar, Policy Counsel, and Vanita Gupta, Deputy Legal Director, at the American Civil Liberties Union.  Cross-posted from American Constitution Society.

There isn’t an American who hasn’t felt the devastating effects of the Great Recession. And just when most of us thought it couldn’t get any worse, the S&P downgrade of the federal government’s Treasury debt last Friday sent shocks through the country and the world, increasing talk about a double-dip recession and creating sharp declines on Wall Street yesterday reminiscent of the 2008 market crash. A downgrade of state and municipality debts could also follow.

The scarcity of funds in American households and the resulting decline in government revenues have forced lawmakers to think twice before spending precious taxpayer dollars. Some states have enacted laws in the name of saving money that have been incredibly short sighted – like cutting funding for public and higher education or increasing financial burdens on the poor. These types of policies may save small amounts of money in the short run, but will have devastating effects on our children’s futures and prevent individuals on the margins from contributing to society. 

Among all this economic tragedy, however, there is a silver lining. As detailed by a new ACLU report released today, several states have enacted cost-effective laws cutting their unnecessary overreliance and massive spending on prisons while continuing to protect the safety of our communities. This is especially good news considering that state and federal governments spend about $70 billion annually on prisons and corrections. Over the last 25 years, state corrections spending grew by 674 percent, outpacing the growth of other government expenditures.

Tea Party Justice

It appears that President Obama still has that good old bipartisanship feeling, exemplified by his nomination of David Barlow  for U.S. Attorney for Utah.  Barlow, who has no criminal law experience, has been the chief legal advisor to freshman Utah Senator Mike Lee.  And what legal advice might Barlow have been giving Lee?  A Tea Party favorite, Lee has expressed some fairly extreme views about the role of the federal government, including that federal child-labor laws are unconstitutional, as are federal disaster relief, poverty nets and food-safety standards, all of which should be left up to the states.  After the Bush Administration completely politicized the Justice Department by appointing so many radical Republicans, what is Obama thinking?  Part of the problem, as explained below, may lie in the constraints put upon him by the Senate's current practice of allowing home-state Senators to block nominations.  Yet, another example of reasonable Democrats getting crushed by intransigent Republicans.  But before Barlow is confirmed, as ThinkProgress puts it, "the Senate owes the people of Utah a duty to ensure that Barlow will not use his position in the Justice Department to push Mike Lee’s radical constitutional agenda."

Partisan Obstruction On Federal Judges Continues

I have repeatedly noted how Republican obstruction and Democratic apathy have resulted in an alarming number of judicial vacancies throughout the federal courts.  (See, e.g., Tit for Tat; Courting Failure; Lame and Lamer; Vacant and Lame.)  While early this year a bipartisan agreement was allegedly reached to speed up the process, Senate Republicans are continuing to block votes on non-controversial, qualified nominees.  It is up to Obama and the Democrats to, dare I say, be a whole lot more aggressive in pushing the process forward.

Four Nominees Confirmed Before Month-Long Recess, But Many More Left Behind

By Nicole Flatow, cross-posted from American Constitution Society.

The Senate left town yesterday, heading into recess several days ahead of schedule. In its final hour, the Senate confirmed by unanimous consent four of the 24 judicial nominees that were ready for a Senate vote, and scheduled a vote on a fifth nominee for September.

But as ACS Executive Director Caroline Fredrickson pointed out in a statement after the vote, 19 other candidates were left behind “whose nominations have been fully vetted and could have been voted on immediately.”

“This current pace of confirming judicial nominees is far from adequate to the job,” Fredrickson said in her statement. “While the Senate is on break during the month of August, matters involving Americans’ safety, freedom, and livelihoods will continue to be delayed. And in some of the most overburdened districts, our judges may be forced to rush through burgeoning criminal dockets without taking crucial time to consider the arguments before them.”

Will The Roberts Court Kill The Voting Rights Act?

By Dr. Greg Rabidoux, July 25, 2011, cross-posted from American Constitution Society's blog.

Speaking before a joint session of Congress on March 15, 1965, LBJ urged support for the Voting Rights Act (VRA). He implored all members to get behind it or risk being on the wrong side of history. He asserted that “Experience has clearly shown that the existing process of law cannot overcome systematic and ingenious discrimination. No law…can ensure the right to vote when local officials are determined to deny it.”

That was then, and Justice Clarence Thomas (among others) and his assertion that the time for the Voting Rights Act has indeed come and gone, is now.

But before we throw dirt on the VRA once and for all, a bit of context is in order.

Senate Easily Confirms Openly Gay Judicial Nominee

J. Paul Oetken

I have written before, most recently here and here, about the crisis caused by the growing vacancy rate in the federal courts, mostly due to Republican intransigence.  Last week, Senator Patrick Leahy, Chairman of the Judiciary Committee, which continues to approve nominations only to have them stall on the Senate floor, complained about the Senate's recalcitrance, with action taken on only four nominees while more than 90 vacancies remain.  GOP opposition to efforts to diversify the federal bench, as the American Constitution Society has pointed out, has been particularly strenuous.  So, it is encouraging to report that yesterday, J. Paul Oetken became the first openly gay man to be confirmed to be a federal judge.  The Senate vote was by a lopsided 80-13, and as Dana Milbank noted, what was so remarkable about it "was that it was utterly unremarkable."

Senate Slowly Makes Progress On Judicial Nominations, Confirming First Openly Gay Man To Federal Bench

Cross-posted from American Constitution Society's blog, originally published on July 18, 2011.

The Senate after a typically slow process confirmed J. Paul Oetken as a U.S. District Judge for the Southern District of New York. Oetken is the first openly gay man to be confirmed to a seat on the federal bench.


Oetken, a lawyer who has practiced in the private and public sectors, including time in the Clinton administration’s White House Counsel’s Office, was reported favorably by the Senate Judiciary Committee more than three months ago, a fact Sen. Judiciary Chairman Patrick Leahy lamented today.

Leahy said Oetken (pictured) should have been confirmed quickly after his vote out of the Senate Judiciary Committee. “Yet,” he said, “like so many of President Obama’s qualified, consensus nominees, Mr. Oetken has been stuck without cause or explanation for months on the Senate’s Executive Calendar.”

But Senate Republicans are not interested in budging from their obstinate stance against Obama’s judicial selections.

Compromise This!

House GOP Brain Trust

As I noted in an earlier post, the Republicans have no intention of forging any compromise on raising the debt ceiling.  Despite the apparent willingness of the President to go along with massive spending cuts, the Republicans will not accept any deal that includes tax increases. What is even crazier is House Majority Leader Eric Cantor's assertion that agreeing to raise the debt ceiling would itself constitute a compromise.  He actually said that the key concession is "the fact that we are voting -- the fact that we are even discussing voting for a debt ceiling increase."  Cantor further said that "what I don't think the White House understands is how difficult it is for fiscal conservatives to say they're going to vote to pay for a debt ceiling increase."  Never mind that when former President Bush added more than $4 trillion to the national debt, as Paul Krugman recently explained, Congress voted to raise the debt ceiling seven times "with little fanfare."

What is the President to do?  How about insisting that the statutory debt ceiling is unconstitutional.  What follows is a piece originally published on the American Constitution Society's blog, that ACS has allowed me to cross-post.

The National Debt, The Fourteenth Amendment And Presidential Authority To Act

American Constitution Society, July 11, 2011.

As Congress and President Obama continue their negotiations on a deficit reduction deal with a looming Aug. 2 deadline, politicians and scholars have continued to question whether the Constitution offers a solution if Congress should fail to act.

The idea that a statutory limit on the federal debt could be unconstitutional if it caused the U.S. to default on payments initially gained traction following an April column in The Atlantic in which University of Baltimore law professor Garrett Epps envisioned an address President Obama might give announcing his refusal to observe the statutory debt ceiling on constitutional grounds.

No Surrogate Forensics

By Brandon L. Garrett, originally posted on American Constitution Society's blog, June 24, 2011.

Yesterday, the U.S. Supreme Court in Bullcoming v. New Mexico ruled that it violates the Confrontation Clause of the Sixth Amendment to permit a forensic report to be introduced at trial by putting on the stand a crime lab analyst who did not do the actual work in the case. The Court, in a majority opinion authored by Justice Ginsburg, reinforced the Court’s 2009 decision in Melendez-Diaz v. Massachusetts, by ruling that putting on such “surrogate testimony” denies the defense an opportunity for cross-examination. Some labs have long put on the stand forensic analysts who were not involved in the particular work done in a person’s case. Perhaps the analyst who actually did the work had left the office. Perhaps that analyst was overworked.  Or perhaps one analyst in the lab was especially effective in front of a jury.

Donald Bullcoming was arrested for driving while intoxicated, after rear-ending another pick-up truck. The central evidence against him at trial was a lab report, a “Certificate of Analyst,” stating that his blood alcohol level was well above the legal limit. The prosecution did not call the analyst who actually tested Bullcoming’s blood sample – he had been placed on unpaid leave for some undisclosed reason. (This could raise a red flag – though perhaps the reason for the unpaid leave was entirely unremarkable.) The State instead called someone else from the lab who was familiar with their testing procedures.