Published: Mon, 24 Apr 2017 00:00:00 -0400
Last Build Date: Mon, 24 Apr 2017 03:39:41 -0400
Fri, 21 Apr 2017 10:15:00 -0400This week the Supreme Court ruled that Colorado has no right to keep fines, fees, court costs, and restitution it extracts from criminal defendants whose convictions are later reversed. By forcing people to prove their innocence before they can get back property that is rightly theirs, the Court said, Colorado has been violating the 14th Amendment's guarantee of due process. The Institute for Justice, which filed a brief in the case emphasizing that the presumption of innocence is an essential aspect of due process, makes a compelling argument that civil asset forfeiture routinely violates that principle. The Court's decision in Nelson v. Colorado, which was joined by seven justices (Clarence Thomas dissented, and Neil Gorsuch joined the Court too recently to participate), came in response to challenges by Shannon Nelson and Louis Madden, who tried to get back money the state took from them based on convictions that were overturned. Nelson, who in 2006 was convicted of two felonies and three misdemeanors based on allegations that she had abused her four children, was sentenced to 20 years in prison and ordered to pay $8,193 in court costs, fees, and restitution, $702 of which was taken from her inmate account before she won a new trial and was acquitted. Madden, who in 2005 was convicted of two felonies based on allegations that he had patronized an underaged prostitute, received an indeterminate prison sentence and was ordered to pay $4,413 in costs, fees, and restitution, $1,978 of which was collected before his convictions were reversed on appeal and the state decided not to prosecute him again. Nelson and Madden got a sympathetic hearing at the Colorado Court of Appeals, which concluded that they had a right to refunds. But the Colorado Supreme Court disagreed, saying they could get their money back only if they followed the process prescribed by Colorado's Compensation for Certain Exonerated Persons statute, a.k.a. the Exoneration Act. That law requires exonerated defendants seeking compensation to file a lawsuit and prove their innocence by clear and convincing evidence. That procedure is prohibitively expensive for people seeking the return of modest sums, and it is no help at all for people convicted of misdemeanors, which are not covered by the law. More fundamentally, the U.S. Supreme Court says in an opinion by Justice Ruth Bader Ginsburg, the Exoneration Act is inappropriate for people who are seeking not compensation for wrongful convictions but the return of money the state took based on legal determinations that are no longer valid. "Colorado may not retain funds taken from Nelson and Madden solely because of their now-invalidated convictions, for Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions," Ginsburg writes. "To get their money back, defendants should not be saddled with any proof burden. Instead...they are entitled to be presumed innocent." That was true before Nelson and Madden were tried, Ginsburg observes, and it is true again now that their convictions have been nullified. The parallels with civil asset forfeiture are pretty clear. In both cases, the government takes someone's property based on allegations of criminal activity, and in both cases the owners are forced to prove their innocence if they want to get their property back. Nelson v. Colorado "upholds the fundamental principle that Americans are entitled to be presumed innocent until proven otherwise," says Institute for Justice attorney Robert Everett Johnson. "The Court expressly rejected Colorado's argument that the 'presumption of innocence applies only at criminal trials,' explaining that the government 'may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions.' Unfortunately, civil forfeiture laws turn the presumption of innocence on its head. Using civil forfeiture, law enforcement seizes billions of dollars in cash and other property every year based only on suspicion of a crime. Property owners are then required to prov[...]
Thu, 20 Apr 2017 10:52:00 -0400
Newly appointed Supreme Court Justice Neil Gorsuch is an outspoken foe of Chevron deference, the legal doctrine that tells federal judges to tip the scales in favor of executive branch agencies when those agencies have offered a "reasonable" interpretation of an "ambiguous" federal statute. "Under any conception of our separation of powers," Gorsuch has written, "I would have thought powerful and centralized authorities like today's administrative agencies would have warranted less deference from other branches, not more."
An important case decided last week by the U.S. Court of Appeals for the District of Columbia Circuit reveals that Gorsuch has a key anti-Chevron ally on that court. At issue in Waterkeeper Alliance v. Environmental Protection Agency was whether the EPA exceeded its authority under federal law while attempting to regulate animal waste produced by farms. According to the unanimous D.C. Circuit opinion written by Senior Judge Stephen Williams, "the EPA's action here can't be justified."
(image) Among the judges who joined that unanimous opinion was Janice Rogers Brown, a Republican-appointee who has previously exhibited certain libertarian tendencies in cases dealing with such issues as economic liberty, police misconduct, and Amtrak. Those tendencies were on display once again last week.
"I join in the Panel Opinion because '[the EPA's approach] ran afoul of the underlying statutes (and was therefore outside the EPA's delegated authority),'" Judge Brown declared. But she also wrote a separate concurrence, in which she went further, rejecting efforts by the EPA and others to shoehorn lawless executive branch behavior in via the already too lenient standard set forth by the Chevron doctrine. "If a court could purport fealty to Chevron while subjugating statutory clarity to agency 'reasonableness,'" she wrote, "textualism will be trivialized."
Brown concluded her concurrence by observing that "an Article III renaissance is emerging against the judicial abdication performed in Chevron's name." Article III is that part of the U.S. Constitution that grants "the judicial power" to the courts. In other words, what Brown is saying is that certain federal judges are starting to get fed up with judicial deference to the executive branch and starting to wonder whether the time has come to perform their judicial duty to "say what the law is," as Chief Justice John Marshall once put it.
As evidence of this Article III renaissance, Brown pointed to none other than Neil Gorsuch, quoting from then-Judge Gorsuch's 10th Circuit opinion in Guiterrez-Brizuela v. Lynch, in which Gorsuch wrote, "whatever the agency may be doing under Chevron, the problem remains that courts are not fulfilling their duty to interpret the law."
To be sure, Chevron is at no immediate risk of being overturned. But if Judge Brown and Justice Gorsuch ultimately have their way, the doctrine's days will be numbered.
Wed, 19 Apr 2017 11:25:00 -0400Donald Trump boasted of his love for eminent domain during the 2016 presidential campaign, calling it an "absolute necessity." And the billionaire real estate developer has a long record of pushing government redevelopment agencies to seize private property to make way for his projects. Little Pink House, a new feature film written and directed by Courtney Balaker, looks at eminent domain abuse by recounting the true story behind of an epic 2005 Supreme Court case. Though Trump is no longer directly managing his real estate business, given his authoritarian tendencies, the story depicted in the film is more relevant than ever. (Little Pink House, which stars Academy Award nominated actress Catherine Keener, was produced by Balaker's husband and creative partner, Ted, who is also a former Reason TV producer.) Eminent domain is when the government forces the sale of private property to make way for a so-called public use. That could mean a highway, a school—or in the case of Kelo v. the City of New London, a pharmaceutical plant In 2000, Susette Kelo was a registered nurse who had just moved into a small, pink house in a middle-class area of New London, Connecticut. Seven months later, the city announced plans to turn her Fort Trumbull neighborhood into new research facilities for the Pfizer corporation. She was told she'd need to find a new place to live. City officials and a nonprofit economic development group claimed the new facility would bring business and jobs to the area. Kelo didn't want to sell, so the city moved to take her house by force. She joined with six other residents and sued the city on the grounds that New London's use of eminent domain was unconstitutional. The case made it to all the way to the Supreme Court. Though the city prevailed, the decision led to a public backlash, causing many states to pass new laws limiting the use of eminent domain. When working on the script for Little Pink House, Balaker says she was inspired by Kelo's courage and humility—which Catherine Keener perfectly captured in the film. "What resonated with [Keener] was this concept of your spot," says Balaker. "When you find your place and you can really root yourself into that place and how disruptive that is to somebody to uproot you against your will." "Apart from putting you in jail or killing you, to take away your home or your livelihood is about the most serious thing that a government can do," says Scott Bullock with the Institute for Justice, who was Kelo's lawyer all the way up to the Supreme Court. Actress Jean Tripplehorn plays Charlotte Wells, who in the movie spearheads the initiative to forcibly take Kelo's home to build a pharmaceutical plant. Wells gives voice to all of the typical rationales for seizing private property: Creating jobs, economic revitalization, and restoring a sense of grandeur to a fallen industrial town. But don't look for any mustache twirling villains here. "Jean, had a great way of describing it—this is a very misguided woman," says Balaker. "Someone who was on the right path but then went down the very, very, wrong path to get what she wanted." Pfizer's facility was never built in Fort Trumbull. After the city seized and bulldozed many of the homes in the area, the company walked away from the venture. Today, the site of the proposed project is a wasteland. Balaker's film opened the Athena Film Festival this year and was screened at the Vail Film Festival where it picked up the audience award. Produced by Paul Detrick. Shot by Alexis Garcia and Alex Manning. Dama-May - Primal Drive by Kevin MacLeod is licensed under a Creative Commons Attribution license (https://creativecommons.org/licenses/by/4.0/) Source: http://incompetech.com/music/royalty-free/index.html?isrc=USUAN1200086 Artist: http://incompetech.com/ Consequence - Wonders by Kevin MacLeod is licensed under a Creative Commons Attribution license (https://creativecommons.org/licenses/by/4.0/) Source: http://incompetech.com/music/royalty-free/index.html?isrc=USUAN1100283 A[...]
Wed, 19 Apr 2017 00:01:00 -0400Democrats are understandably bitter about the Republican intransigence that ultimately allowed Neil Gorsuch to take a seat on the U.S. Supreme Court this week. But for Democrats who care about civil liberties, Gorsuch is a better choice than Merrick Garland, the nominee Republican senators refused to consider after he was nominated by President Obama last year. Garland, who has served on the U.S. Court of Appeals for the D.C. Circuit since 1997, was frequently described as a "moderate" after Obama picked him to replace Justice Antonin Scalia, who died in February 2016. Garland earned that label mainly by siding with the government, sometimes in cases where conservatives liked the result and sometimes in cases where liberals did. Despite his reputation on the left as an authoritarian, Scalia defended the rights of the accused more consistently than some of his purportedly more liberal colleagues. And as SCOTUSBlog publisher Tom Goldstein noted, Garland is "to the right of Scalia on criminal justice issues." Gorsuch, who served for a decade on the U.S. Court of Appeals for the 10th Circuit, seems closer to Scalia in this area. Like Scalia, he is a critic of vague criminal statutes and a stickler when it comes to requiring that prosecutors prove all the elements of an offense. Both tendencies were apparent in a 2015 case involving merchants charged with violating the Controlled Substance Analogue Enforcement Act by selling "incense" containing a synthetic cannabinoid. Even without delving into the "vagueness concerns" raised by the Analogue Act, Gorsuch said, it was clear the defendants had been improperly convicted because the jury instructions "effectively relieve[d] the government of proving each essential element specified by Congress." Gorsuch's concern about the proper application of criminal statutes was also apparent when he dissented from a 2016 decision in which the 10th Circuit upheld the arrest of a New Mexico seventh-grader who burped up a storm during P.E. class, to the amusement of his peers and the annoyance of his gym teacher. According to the New Mexico Court of Appeals, Gorsuch pointed out, the law under which the boy was charged, which makes "interfering with the educational process" a misdemeanor, "does not criminalize 'noise[s] or diversion[s]' that merely 'disturb the peace or good order' of individual classes." Another 2016 dissent shows that Gorsuch shares Scalia's respect for the zone of privacy protected by the Fourth Amendment. When the 10th Circuit said it was constitutional for police to ignore multiple "No Trespassing" signs on the property of a suspected drug dealer, Gorsuch criticized his colleagues for endorsing "an irrevocable right to enter a home's curtilage to conduct a knock and talk." Although progressives may be willing to concede that Gorsuch is preferable to Garland on criminal justice, they tend to view another contrast between the two judges with alarm. Gorsuch is more inclined than Garland (or Scalia) to question the authority of administrative agencies. While Goldstein found that Garland has "strong views favoring deference to agency decisionmakers," Gorsuch is a prominent critic of the Chevron doctrine, which gives agencies wide authority to resolve ambiguities in the laws they are charged with enforcing. Gorsuch sees excessive deference to executive-branch agencies as a threat to the separation of powers. It is also a threat to individual freedom. Giving one agency the power to interpret and rewrite the law as well as enforce it poses a clear threat to people at the agency's mercy, including the obscure and vulnerable as well as the rich and powerful—a point that progressives who view Chevron as an essential bulwark of the regulatory state have trouble recognizing. Prior to Gorsuch's confirmation, People for the American Way cited a 2016 decision as evidence that he would undermine the ability of regulators to "enforce critical laws, safeguard essential protections, and ensure the safety of th[...]
Mon, 17 Apr 2017 13:55:00 -0400Today is newly seated Supreme Court Justice Neil Gorsuch's first day at the office hearing cases. He is apparently not going to be a quiet, Clarence Thomas-style justice and asked several questions during the first case before the court. Before this morning's case—which is a procedurally-oriented matter about the processes required appeal federal work discrimination complaints—the Supreme Court released its list of orders from last week's conference and decided not to take any new cases as yet. Gorsuch did not participate in this last conference but will for the next one. This matters because the Supreme Court has repeatedly declined to make a decision whether to take a high-profile case about businesses declining to serve gay weddings and has been bumping it to future conferences since last December. It rescheduled the case yet again this morning. That case is Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission. This is a case about wedding cakes, gay marriage, and whether businesses can decline to provide their goods and services on the basis of religious beliefs. Jack Phillips, owners of Masterpiece Cakeshop in Lakewood, Colorado, declined (all the way back in 2013) to bake a wedding cake for a gay couple's wedding. This decision ran him afoul of Colorado's public accommodation laws, which forbid discrimination on the basis of sexual orientation. Phillips' response, as we have seen in many of these cases, is that he's not refusing to serve gay people, but he has religious objections to gay marriage and sees being obligated to make a wedding cake as being compelled to put his stamp of approval on it. Courts across the country have disagreed with Phillips and other businesses that serve weddings, like florists and photographers. Courts have thus far declined to accept the argument that refusing to serve gay weddings is somehow different from refusing to serve gay people. Furthermore courts have declined to accept the claim that floral arrangements or wedding cakes are a form of protected expression and that compliance with law compels speech or forces people to compromise their religious beliefs. That the Supreme Court kept pushing back a decision on whether to take this case until now is significant because they've already previously rejected to hear a similar fight. A photographer in New Mexico tried to get the court in 2014 to hear their case where the state told them they couldn't refuse to provide their services for a gay couple's wedding. The photography company, like Masterpiece Cakeshop, lost their challenge to the law, and the Supreme Court declined to hear the case. Now, three years later, the court appears to be delaying a decision at least until Gorsuch has been seated. There haven't been any cases where higher courts have accepted the arguments of the religious shop owners, so there's no "split" that requires the Supreme Court to resolve. Most recently, a florist in Washington State lost her challenge just like the bakery and photographer had before her. It's possibly significant that the Supreme Court didn't again simply refuse to certify a case that's very similar to one they've rejected before. Damon Root has carefully analyzed what Gorsuch is likely to be bringing to the court here. On Wednesday, the Supreme Court will be hearing a case connected to the boundaries of separation between church and state. The question at hand is whether it's constitutional for Missouri to withhold grants from a state program funding playground equipment from religious schools. Missouri's state constitution forbids it; the religious schools say this counts as religiously motivated discrimination. The only real fundamental overlap here with the bakery case is the invocation of religious freedom, so be wary of reading too much into any questions Gorsuch might ask in that case. Nevertheless, it's worthy of noting that the court held on to the bakery case long enough for a ninth justice to be seated befor[...]
Fri, 07 Apr 2017 11:55:00 -0400Neil Gorsuch has been officially confirmed to the U.S. Supreme Court by a final vote of 54-45 in the U.S. Senate. The 49-year-old jurist will now fill the vacancy created by the death of Justice Antonin Scalia last year. Today's vote came as the culmination of a bitter partisan fight that has transformed the way in which the Senate will do business on Supreme Court nominations going forward. After the Democratic minority mounted a filibuster this week against Gorsuch, Senate Republicans triggered the so-called nuclear option, a fundamental change in Senate procedural rules that has effectively killed all future filibusters for all future SCOTUS nominees (Senate Democrats "nuked" the filibuster for lower court nominees in 2013). Exactly how this post-nuclear landscape will shape the next Supreme Court confirmation battle remains to be seen. Neil Gorsuch will join a Court that is narrowly split along ideological lines. In the near term, his presence is unlikely to disturb that status quo. What that means is that the Court, at least for now, is likely to remain divided 5-4 in cases dealing with such hot-button issues as abortion rights, affirmative action, campaign finance, and gun control. Yes, Gorsuch will be the new kid on the block, but the justice to watch in those sorts of cases will still be perennial tie-breaker Anthony Kennedy. But what about those areas of the law in which the Court does not divide along predictable conservative-liberal lines, such as criminal justice? For example, the late Justice Scalia was widely admired by criminal justice reformers for his opinions in Fourth Amendment cases. As Scalia himself once put it, "I have defended criminal defendants' rights—because they're there in the original Constitution—to a greater degree than most judges have." By contrast, liberal Justice Stephen Breyer typically reaches the opposite result in such cases and tends to rule in favor of prosecutors and police. Indeed, from a civil libertarian point of view, Justice Breyer is terrible on the Fourth Amendment. Meanwhile, another liberal justice, Sonia Sotomayor, is a Fourth Amendment champion who usually sided with Scalia. Where will Neil Gorsuch fit in? Given his record, I would not be surprised to see Gorsuch coming down on the Scalia-Sotomayor side of this divide, rather than on the Breyer side. Gorsuch is especially well-poised to have a lasting impact on the Court when it comes to the issue of Chevron deference, a far-reaching legal doctrine that takes its name from the Court's 1984 decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council. According to Chevron deference, when the federal courts are confronted with an "ambiguous" statute, the default position is for federal judges to defer to the statutory interpretation favored by the executive branch agency charged with enforcing that statute. "Federal judges—who have no constituency—have a duty to respect legitimate policy choices made by those who do," argued Justice John Paul Stevens in his Chevron majority opinion. "While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices." Chevron, in other words, instructs the courts to tip the scales in favor of the executive branch. Chevron is a well-established Supreme Court precedent, but it does have its critics. Most notably, Justice Clarence Thomas has taken aim repeatedly at what he sees as the ruling's unconstitutional aggrandizement of executive branch agencies. Chevron "wrests from Courts the ultimate interpretative authority to 'say what the law is,'" Thomas complained in Michigan v. EPA, "and hands it over to the executive." That sort of judicial disarmament "raises serious separation of powers questions." Thomas will now have an important ally on this front. Writing last year in the 10th Circuit case of Gutierrez-Brizuela v.[...]
Thu, 06 Apr 2017 13:54:00 -0400
(image) With Democrats promising to use the filibuster to block the nomination of Judge Neil Gorsuch to the Supreme Court, Senate Republicans on Thursday afternoon triggered the so-called "nuclear option" and abolished the upper chamber's 60-vote threshold for appointments to the high court.
It took a series of parliamentary maneuvers, but the end result is the establishment of a new precedent allowing future Supreme Court nominees to be confirmed by the Senate with a simple majority vote (as has been the case for all other federal court appointments since the Democrats similarly changed the rules in 2013).
The final vote on the rule change was 52-48, along party lines. The vote does not confirm Gorsuch, but clears the way for an expected confirmation vote Friday.
Brinkmanship over the Senate's filibuster for presidential court picks has been as much about assigning blame than anything else. Republicans say Democrats lit the fuse for the nuclear option in 2013, when then-Majority Leader Harry Reid (D-Nevada) changed the rules to block a Republican filibuster of some of President Barack Obama's federal court nominees. Democrats blame Republicans for refusing to give Obama's Supreme Court nominee, Merrick Garland, a hearing or a vote last year and forcing Gorsuch through without getting the requisite 60 votes to avoid a filibuster. Both sides will surely try to raise money and make campaign ads out of Thursday's vote.
That 60-vote threshold has always been something of an illusion, since any majority coalition of senators could have abolished it at any time. The filibuster is a great protection against majoritarianism, but it has survived this long—ironically—because no majority ever decided to kill it and no minority was ever foolish enough to goad the majority into doing so. (Fans of the filibuster will be happy to know there seemingly is little appetite for eroding its use in legislative matters, as Dave Weigel reports)
Democrats very well may wish that they still had the filibuster at their disposal when the next Supreme Court nominee comes before them. With Trump in office for the next four years and a difficult electoral map facing them in 2018, they may be in the minority for some time, and Trump's next appointee may not be as agreeable as Gorsuch.
For that matter, it's not hard to imagine a future moment when Republicans, too, will look back at today and wonder why they disposed of the filibuster. A future, progressive president with a liberal majority in Congress will be able to push judicial nominees that stretch the Supreme Court far beyond its traditional middle-of-the-road political views.
And that's the only thing we can say with any certainty about today's vote: that it will drive our politics further to the edges of the mainstream. Whether that is for good or for ill depends on your individual point of view, but the truth is that both sides will now be able to approve lifetime nominees to the Supreme Court based on the outcome of the most recent election cycle, rather than having to find consensus candidates that could win support across the Senate's center aisle. The consequences of triggering the nuclear option, I think, will not be fully known for a long time.
Thu, 06 Apr 2017 06:00:00 -0400
On April 4, 1952, the United Steelworkers of America called for a nationwide strike in the hopes of driving up wages throughout the steel industry. But on the eve of the planned walkout, President Harry Truman stuck his nose where it didn't belong. With the stroke of a pen, Truman killed the strike by ordering Secretary of Commerce Charles Sawyer to seize control of most of the nation's privately owned steel mills and operate them on behalf of the federal government.
How did Truman justify this sweeping exercise of presidential authority? How else? He raised the specter of national security and invoked his "inherent powers" as commander in chief. Pointing to the presence of U.S. forces in Korea, Truman insisted that the success of the war effort depended on the president's unilateral ability to keep the steel mills humming. "In order to assure the continued availability of steel and steel products during the existing emergency," Truman wrote in Executive Order 10340, "it is necessary that the United States take possession of and operate the plants, facilities, and other property of the said companies."
Unsurprisingly, the said companies took a different view of the matter. They filed suit in federal court, charging Truman with usurping the legislative powers of Congress and overstepping his lawful powers as president. A little less than two months later, the Supreme Court stopped Truman dead in his tracks.
"The President's order does not direct that a congressional policy be executed in a manner prescribed by Congress—it directs that a presidential policy be executed in a manner prescribed by the President," wrote Justice Hugo Black in Youngstown Sheet and Tube Company v. Sawyer. Yet "the Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times." To hold otherwise, Black said, would be to turn the Constitution on its head. "It would do no good," he added, "to recall the historical events, the fears of power, and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand."
Harry Truman was not the first president to issue a lawless executive order and he quite obviously has not been the last. That's why Youngstown remains such an important precedent to have on the books. Even in times of war and national insecurity, the ruling insists, no president is above the Constitution.
Tue, 04 Apr 2017 13:55:00 -0400
(image) Senate Democrats are threatening to mount a filibuster this week against Trump Supreme Court nominee Neil Gorsuch. Why? Among other reasons, the Democrats say they want some payback for last year's Republican stonewalling of Obama Supreme Court pick Merrick Garland, whose SCOTUS nomination languished for months without getting so much as a hearing from the Senate Judiciary Committee. As Democratic Sen. Thomas Carper (Del.) recently told The Washington Post, "I have a very hard time getting over what was done to Merrick Garland. That's a wrong that should be righted."
While the Democrats are busy trying to right that wrong this week they might also take a moment to consider whether Merrick Garland was really all that preferable to Neil Gorsuch on certain issues that Democrats claim to care deeply about. After all, remember that when President Obama first nominated Garland, many liberal activists spoke out in protest and disappointment. And it was no wonder why. As I noted at the time, "while Garland is undoubtedly a legal liberal, his record reflects a version of legal liberalism that tends to line up in favor of broad judicial deference to law enforcement and wartime executive power."
I leave it to Senate Democrats to ponder whether or not that is the sort of justice they would like to see on the Supreme Court in the era of President Trump and Attorney General Sessions.
Meanwhile, when it comes to some of those very same issues, Neil Gorsuch may well be more "liberal" than Merrick Garland. Take criminal justice. Garland's record is that of a judge who routinely sides with prosecutors and police. As SCOTUSblog founder Tom Goldstein concluded, "Judge Garland rarely votes in favor of criminal defendants' appeals of their convictions." By contrast, Gorsuch's record reveals a judge who takes the Fourth Amendment seriously as a constitutional safeguard designed to protect all persons, including unpopular criminal suspects, against abusive law enforcement tactics.
Along similar lines, Garland is well-known for advocating judicial deference to both executive branch agencies and to those agencies' interpretations of the laws and regulations they are supposed to enforce. Gorsuch is famous for taking the opposite view. Indeed, Gorsuch's most well-known opinion came in a case in which the Board of Immigration Appeals overstepped its lawful authority in an effort to deprive an undocumented immigrant of his rights. Gorsuch ruled against that executive branch agency. Garland's record, on the other hand, strongly suggests that he would have deferred to the executive agency under the same circumstances.
Perhaps the Democrats are right to seek political retaliation for the fact that their party's nominee never even got a hearing. But perhaps some Democrats might also be quietly relieved that the same nominee never made it to SCOTUS.
Tue, 04 Apr 2017 11:00:00 -0400One telling measure of Democrats' desperation to find reasons for opposing Neil Gorsuch's nomination to the Supreme Court is the extent to which they have misrepresented his statements regarding Brown v. Board of Education, the 1954 decision that said racial segregation in public schools violates the 14th Amendment's guarantee of equal protection. On March 27, during a meeting at which the Senate Judiciary Committee discussed Gorsuch's nomination, Sen. Dianne Feinstein (D-Calif.) claimed "he wouldn't say" when asked whether he "support[ed]" Brown. On CNN yesterday, Sen. Richard Blumenthal (D-Conn.) said he had "asked [Gorsuch] repeatedly to say whether he agreed" with Brown, and "he refused to say whether it was correct or not." The New York Times quotes Sen. Mark Warner (D-Va.) as saying, "My understanding was he wouldn't even vouch for Brown v. Board of Education." Warner's understanding is wrong, and so are Feinstein and Blumenthal's recollections. Blumenthal first asked Gorsuch about Brown on March 21, the second day of his confirmation hearing: Blumenthal: Do you agree with the result in Brown v. Board of Education? Gorsuch: Senator, Brown v. Board of Education corrected an erroneous decision—a badly erroneous decision—and vindicated a dissent by the first Justice Harlan in Plessy v. Ferguson where he correctly identified that separate [but equal] to advantage one race can never be equal. Blumenthal: And do you agree with the result? Gorsuch: In Plessy? No. Blumenthal: Do you agree with the result in Brown v. Board? Gorsuch: Brown v. Board of Education, Senator, was a correct application...of the law and precedent. Blumenthal: By the way, when Chief Justice Roberts testified before this committee and he was asked by Senator Kennedy, quote, "Do you agree with the Court's conclusion?"— meaning in Brown, that the segregation of children in public schools solely on the basis of race is unconstitutional—Judge Roberts answered unequivocally, quote, "I do." Would you agree with Judge Roberts? Gorsuch: Senator, there's no daylight here. Blumenthal: OK... Gorsuch: Justice Harlan got the original meaning of the Equal Protection Clause right the first time. And the Court recognized that belatedly. It's one of the great stains on the Supreme Court's history that it took it so long to get to that decision. In short, Gorsuch said Brown was "a correct application of the law and precedent," which means it was properly decided; he said his position on Brown was the same as Chief Justice Roberts'; and he said Brown rightly vindicated Harlan's view of the Equal Protection Clause. That seems pretty unequivocal to me. But it did not satisy Blumenthal, who repeated his question the next day: Blumenthal: I want to go back to some questions I asked you yesterday, which perhaps you didn't get a chance to clarify. And I want to give you that opportunity. You recall we were talking about Brown v. Board of Education. And you said, I believe, that you agree with that decision. Do I have it correctly? Gorsuch: Senator, it is a seminal decision of the United States Supreme Court, interpreting the 14th Amendment, maybe one of the great moments in Supreme Court history. Blumenthal: You said, and I quote, that it "corrected an erroneous decision, a badly erroneous decision," end quote, and you called it, quote, "a correct application of the law of precedent," end quote. And you said also that it vindicated a dissent, quote, "that got the original meaning of the Equal Protection [Clause] right." That sounds to me like you agreed with the result in Brown v. Board of Education. Gorsuch: Senator, you can characterize it however you want. I've said what I said....I stick by what I said. Blumenthal: So unlike Justice Kennedy and Justice Roberts, Chief Justice Roberts, in their confirmation hearings, you[...]
Tue, 04 Apr 2017 08:01:00 -0400Unless something changes in the next few hours, it appears that at least 41 Democrats, according to The Washington Post and other media outlets, will attempt to block the nomination of Neil Gorsuch on the Senate floor. That could potentially cause Republicans to trigger the so-called "nuclear option" and vote to kill the filibuster for Supreme Court nominees. That number is key in Congress' 100-member upper chamber, where 60 votes are required to do pretty much anything (except appoint federal judges to courts other than the Supreme Court, but more on that in a minute). If Republicans can't get 60 votes to close off debate on Gorsuch's nomination, Democrats would be able to filibuster and grind the Senate to a halt until Gorsuch is withdrawn from the confirmation process. The 60-vote threshold in the Senate is a somewhat unique element in parliamentary bodies around the world and one of the things that makes the U.S. Senate "the world's most deliberative body." It's also something of an illusion, just like all the other rules that govern how Congress operates. That's because all the rules can be rewritten with a simple majority vote—yes, even rules that say a super-majority is needed for this or that. The filibuster has survived for so long purely because of a bipartisan, institutional belief that it matters. Any group of 51 senators (or fewer, in the days when the nation had fewer states) could have killed the filibuster at any time, but that great protection against majoritarianism carries on, counter-intuitively, because no majority has ever sought to kill it—probably because all majorities eventually become minorities, and no minority has ever made the mistake of goading the majority into killing it, as the Democrats appear willing to do this week. Still, this isn't the first time the filibuster has been weakened substantially. Democrats struck the first blow against the filibuster in 2013 by rewriting the rules so the 60-vote threshold no longer applied to all federal court appointments except appointments to the Supreme Court. It's widely assumed that if Republicans can't get eight Democrats to vote in favor of cloture on Gorsuch this week, Senate Majority Leader Mitch McConnell (R-Kentucky) will trigger the so-called "nuclear option" and abolish the filibuster for Supreme Court nominees. Here's how it would go down—with Republicans following the same path as Democrats did in 2013. Step 1: The Senate will vote to invoke "cloture," which ends debate on whatever issue is before the chamber. Under Rule XXII, the Senate requires 60 votes to approve cloture and end a debate. Step 2: Assuming cloture fails (if it succeed, no nuclear option would be necessary), a Republican senator will move to reconsider—aka, revote—on the cloture motion. After it fails a second time, Majority Leader Mitch McConnell (R-Kentucky) will raise a point of order declaring that all Supreme Court nominees can be approved with a simple majority vote. Step 3: The Senate President pro tempore gets to rule on whether points of order are approved (that is, in line with the Senate's rules) or overruled, based on Senate rules and precedent. In this case, Senate President Orrin Hatch (R-Utah) would presumably rule that McConnell's point of order is overruled, because Senate rules and precedent say cloture is required for Supreme Court nominees. Step 4: Here's where the change really happens. McConnell gets overruled, but he's allowed under Senate rules to appeal the ruling of the Senate president. If he wants to invoke the "nuclear option," he will appeal Hatch's decision, which triggers an immediate vote (meaning there can be no debate before the vote) on Hatch's ruling. Step 5: The vote on the Senate president's ruling is a simple majority vote. If a majority of the Senate[...]
Thu, 30 Mar 2017 08:30:00 -0400The state of New York forbids merchants to impose a surcharge on customers who use credit cards rather than cash, checks, or debit cards, but it allows them to offer a discount for cash. A cash discount amounts to the same thing economically but not psychologically: Calling the difference in price a surcharge draws attention to the fact that credit card companies charge merchants a fee (typically 2 percent to 3 percent) for each transaction, and it probably is more effective at encouraging cash purchases, since people tend to feel losses more than gains. Since the surcharge ban restricts the way retailers communicate prices, five New York businesses challenged it on First Amendment grounds, and yesterday the Supreme Court gave their case a boost by agreeing that the law regulates speech. In 2015 the U.S. Court of Appeals for the 2nd Circuit dismissed the First Amendment challenge, ruling that New York's law regulates conduct—the prices that merchants charge—rather than speech. But as Chief Justice John Roberts points out in a majority opinion joined by four other justices (Clarence Thomas, Anthony Kennedy, Ruth Bader Ginsburg, and Elena Kagan), New York businesses remain free to set their own prices and even to charge cash and credit customers different amounts. But they are not free to describe those prices the way they prefer: The law tells merchants nothing about the amount they are allowed to collect from a cash or credit card payer. Sellers are free to charge $10 for cash and $9.70, $10, $10.30, or any other amount for credit. What the law does regulate is how sellers may communicate their prices. A merchant who wants to charge $10 for cash and $10.30 for credit may not convey that price any way he pleases. He is not free to say "$10, with a 3% credit card surcharge" or "$10, plus $0.30 for credit" because both of those displays identify a single sticker price—$10—that is less than the amount credit card users will be charged. Instead, if the merchant wishes to post a single sticker price, he must display $10.30 as his sticker price. Roberts notes that the plaintiffs have a strong financial interest in steering customers toward cash, since "they pay tens of thousands of dollars every year to credit card companies." In addition to encouraging cash purchases, the merchants "want to make clear that they are not the bad guys—that the credit card companies, not the merchants, are responsible for the higher prices." Since the plaintiffs "believe that surcharges for credit are more effective than discounts for cash in accomplishing these goals," they are seeking permission to talk about prices in a way the law forbids. Having decided that the ban on surcharges for credit card purchases regulates speech, the Court instructs the 2nd Circuit to consider whether the law passes muster under the First Amendment. "The Court addresses only one part of one half of petitioners' First Amendment challenge to the New York statute at issue here," Justice Sonia Sotomayor says in a concurring opinion joined by Justice Samuel Alito. "This quarter-loaf outcome is worse than none." She agrees that the case should be sent back to the appeals court but says the meaning of the statute is insufficiently clear to go further than that. Sotomayor thinks the surcharge ban can be read in at least three different ways: as requiring the same prices for all customers regardless of how they pay, as banning the kind of signs described by Roberts, or as restricting even the terminology used to describe price differences (surcharge vs. discount). Before conducting a First Amendment analysis, Sotomayor says, the 2nd Circuit should ask the New York Court of Appeals for "a definitive interpretation of the statute that would permit the full resolution of[...]
Wed, 29 Mar 2017 00:01:00 -0400Early in the evening on October 1, 1984, Catherine Fuller, a 48-year-old mother of six, was robbed, sodomized with a foreign object, and beaten to death in a garage off an alley in Washington, D.C. After police concluded that Fuller had been attacked by a group of young men, prosecutors obtained two guilty pleas and eight convictions. Today the Supreme Court will hear an appeal by seven of those men, who argue that prosecutors violated their right to due process by withholding evidence that would have cast doubt on the government's allegations. The case shows why, more than half a century after the Court told prosecutors they have a constitutional duty to share evidence that might help defendants, prosecutors have little incentive to take that duty seriously. In the 1963 case Brady v. Maryland, the Court held that "suppression by the prosecution of evidence favorable to an accused…violates due process where the evidence is material either to guilt or to punishment." The Court later explained that evidence is "material" when there is "any reasonable likelihood that it could have affected the judgment of the jury." It seems clear that the evidence withheld from the men accused of attacking Catherine Fuller meets that standard. The suppressed evidence included, for example, information that would have further undermined the credibility of purported eyewitnesses who implicated the defendants. The jury, which deliberated for a week and acquitted two of the 10 defendants, evidently had trouble believing the government's witnesses, who contradicted themselves, each other, and the physical evidence. It is hardly a stretch for the defendants' lawyers to suggest that the jurors would have been even more skeptical if they had known one of the witnesses "was high on PCP while she met with investigators and identified photographs and suspects," that the same witness had asked a friend to lie about hearing a defendant's confession, or that the aunt of another witness contradicted his claim that he had told her about seeing the crime. Prosecutors also kept jurors from hearing the accounts of witnesses who were in the alley at the time of the attack but did not see a group of men. Even more egregiously, the government suppressed information about two plausible alternative suspects, including one who was convicted of robbing and assaulting two other middle-aged women in the same neighborhood within weeks of Fuller's murder. In 1992 that man "forcibly sodomized and beat to death a woman in an alley three blocks from where Mrs. Fuller had been found." By 2010 all but one of the surviving prosecution witnesses had recanted, saying they had been pressured into falsely implicating the defendants. A District of Columbia Superior Court judge nevertheless rejected the defendants' motion to vacate their convictions, a decision the District of Columbia Court of Appeals upheld in 2015. Amazingly, both courts concluded that the suppressed evidence, although favorable, was not material, which suggests how permissive that standard can be in practice. In a brief supporting the defendants' appeal, the Texas Public Policy Foundation argues that the "materiality" standard should be replaced with a presumption that withholding favorable evidence violates due process unless the government can show beyond a reasonable doubt that the omission did not affect the outcome. "For an unethical or indifferent prosecutor," the brief says, "a pretrial materiality requirement is an invitation to withhold favorable evidence." Even assuming the suppressed evidence later comes to light, the government in all likelihood will prevail on appeal: A 2014 study of "145 decisions in which prosecutors were found to have withheld favorable information" foun[...]
Tue, 28 Mar 2017 11:45:00 -0400Yesterday Attorney General Jeff Sessions threatened to withhold, terminate, and "claw-back" federal funding for so-called sanctuary cities and states, which are those jurisdictions that either won't help the federal government round up and deport undocumented immigrants or otherwise refuse to participate in the enforcement of federal immigration laws. "I urge our nation's states and cities to consider carefully the harm they are doing to their citizens by refusing to enforce our immigration laws, and to re-think these policies," Sessions said. "Such policies make their cities and states less safe, and put them at risk of losing valuable federal dollars." Sessions may not like the idea of sanctuary cities, but sanctuary cites are protected by both the Constitution and by Supreme Court precedent. As Justice Antonin Scalia observed in his 2007 majority opinion in Printz v. United States, "the Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program." In other words, thanks to the 10th Amendment and to the constitutional principles of federalism, the federal government may not commandeer the states for federal purposes. What that means here is that state and local officials have every right to refuse to enforce federal immigration laws. But what about when the federal government threatens to withhold federal funding from those states or cities that refuse to do its bidding? Yes, that too can be unconstitutional. Under Article I, Section 8, Congress possesses to powers to tax and to spend. But as the Supreme Court has repeatedly made clear, those powers may not be used in illegal ways. For example, the Court has said that it is unconstitutional for the feds to impose "coercive" conditions on federal grants to the states. To be sure, the Supreme Court has allowed the feds to attach certain strings to federal dollars. Most famously, in South Dakota v. Dole (1987), that state lost 5 percent of its federal highway funding because it refused to raise its legal drinking age from 19 to 21. The Supreme Court ruled for the federal government in that dispute because it found the threatened loss of just 5 percent of federal highway dollars to be non-coercive. It was a nudge, not a gun to the head. But South Dakota v. Dole is not the last word on the matter. The most recent case on point is National Federation of Independent Business v. Sebelius, the 2012 dispute over the constitutionality of the Patient Protection and Affordable Care Act. One of the central questions in that case was whether Congress had overstepped its lawful bounds when it threatened to cut off all existing Medicaid funding to any state that refused to expand Medicaid in accordance with Obamacare. The Obama administration lost on that question by 7-2. The federal government's Medicaid expansion amounted to a "gun to the head," the Supreme Court held. "A State that opts out of the Affordable Care Act's expansion in health care coverage...stands to lose not merely 'a relatively small percentage' of its existing Medicaid funding, but all of it." That sort of "economic dragooning...leaves the States with no real option but to acquiesce." Jeff Sessions's threats against sanctuary cities would seem to be equally unconstitutional under this standard. Just like the Medicaid expansion, Sessions aims to dragoon state and local officials and leave them "no real option but to acquiesce." If the Trump administration makes good on those threats, its actions will most likely violate the Constitution.[...]
Thu, 23 Mar 2017 12:45:00 -0400
(image) Neil Gorsuch has survived his confirmation hearings before the Senate Judiciary Committee and now, barring some unforeseen (and unlikely) disaster, he is well on his way to being confirmed as the next associate justice of the United States Supreme Court.
Gorsuch was interrogated for two full days by the 11 Republicans and nine Democrats of the Senate Judiciary Committee. Regrettably, just like most other recent SCOTUS nominees, Gorsuch mostly dodged the biggest questions, refusing to express his own legal views on most subjects that might conceivably come before him as a judge, including the propriety of various Supreme Court precedents.
What that meant was that almost every time that Gorsuch was asked about a hot-button legal issue—such as the constitutionality of abortion or the legality of gay marriage—he fell back on the same well-rehearsed answer. That issue has been decided by a "precedent of the Supreme Court," Gorsuch said again and again, and was therefore "due all the weight of a precedent of the Supreme Court."
What does that mean? Consider the 2009 Senate confirmation hearings of Sonia Sotomayor. She too was repeatedly asked about hot-button legal issues, particularly when it came to her views on the Supreme Court's 2008 Second Amendment decision in District of Columbia v. Heller. And her answers were also consistent. Heller is an "established" Supreme Court precedent, Sotomayor repeatedly told the Senate Judiciary Committee, and she "accepted" it.
Fast-forward one year later to the case of McDonald v. City of Chicago. Sotomayor is now a sitting justice of the Supreme Court and she joined the dissenting opinion filed in that case by Justice Stephen Breyer, in which Breyer asserted that "the Framers did not write the Second Amendment in order to protect a private right of armed self-defense." That statement is the exact opposite of what the Court held in Heller.
In sum, giving "weight" or "respect" or "acceptance" to "established" precedent is not the same thing as upholding and affirming that precedent. As Neil Gorsuch himself noted this week, the law of precedent has always included the option of overturning precedent in an appropriate case.