This Day in Liberal Judicial Activism—June 24

June 24 1992—In Lee v. Weisman, a 5-justice majority, in an opinion by Justice Kennedy, rules that a nondenominational prayer delivered by a rabbi at a public school graduation ceremony violated the Establishment Clause because students who chose to attend the ceremony were psychologically coerced “to stand as a group or, at least, maintain respectful silence” during the prayer.  Who knew that Judaism had briefly become the established religion of Providence, Rhode Island?

In dissent, Justice Scalia observes that the majority “lays waste a tradition that is as old as public school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally.”  Scalia states:  “I find it a sufficient embarrassment that our Establishment Clause jurisprudence regarding holiday displays has come to ‘requir[e] scrutiny more commonly associated with interior decorators than with the judiciary.’ But interior decorating is a rock-hard science compared to psychology practiced by amateurs.”  Further:  “I see no warrant for expanding the concept of coercion beyond acts backed by threat of penalty—a brand of coercion that, happily, is readily discernible to those of us who have made a career of reading the disciples of Blackstone, rather than of Freud.”

God save the United States and this often-dishonorable Court! 


For an explanation of this recurring feature, see here. 

Epstein on Boumediene


In last Saturday’s New York Times, University of Chicago law professor Richard A. Epstein—a brilliant, provocative, and idiosyncratic libertarian scholar—has an op-ed on Boumediene that might charitably be described as puzzling.  In his first two paragraphs, Epstein assures the reader that the Boumediene majority reached the right result in holding that aliens detained at Guantanamo as enemy combatants have a constitutional right to challenge their detention through a habeas corpus proceeding in federal court.  Only several paragraphs later do we learn the frivolous basis for Epstein’s judgment:  “Nothing in the suspension clause distinguishes citizens from aliens.” 


The so-called Suspension Clause provides:  “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”  The Suspension Clause doesn’t purport to define the scope of the privilege of habeas corpus; it merely governs suspension of the privilege.  So it’s trivial and meaningless that the clause doesn’t distinguish citizens from aliens.  (What would Epstein imagine the Framers would have said to distinguish citizens from aliens—or at least aliens on foreign soil?  They would have had to define its scope, rather than simply referring to the historic privilege.)


The non-originalist Epstein claims that his misreading of the Suspension Clause rests “on originalist grounds”.  Yet he nowhere confronts (or even acknowledges) the extended originalist argument that Justice Scalia makes in his dissent.  Epstein apparently even imagines that the constitutional guarantees of “persons” flow equally to aliens, as he breezily observes that “the due process clause extends its protection to all ‘persons,’ citizens and aliens alike”, and that “If citizens overseas are entitled to habeas corpus, so are aliens.”  There is, so far as I’m aware, no precedent for recognizing in aliens abroad the same constitutional rights of “persons” that U.S. citizens abroad have, and the very idea is inimical to a sound understanding of what “We the People” established through the Constitution—a framework for “secur[ing] the Blessings of Liberty to ourselves and our Posterity.”  (I am of course not arguing that the U.S. government shouldn’t treat aliens abroad justly; the contours of just treatment are a matter of policy, not constitutional mandate.)


Meanwhile, in Saturday’s Wall Street Journal, Andrew McBride got Boumediene right.

Today’s Rulings


The Court will issue more rulings at 10:00.  I’m going to be tied up in meetings most of today, so if you want a prompt summary of, and access to, the rulings, go directly to SCOTUSblog (which offers live blogging of the Court’s announcement session) or How Appealing.

This Day in Liberal Judicial Activism—June 23

June 23 2005—In an act of judicial passivism, a 5-justice majority, in an opinion by Justice Stevens, rules in Kelo v. City of New London that the City of New London satisfies the “public use” requirement of the Takings Clause when it takes private property from homeowners in order to transfer it to another private owner as part of an economic redevelopment plan.  The majority correctly observes that its diluted reading of “public use” to mean “public purpose” accords with precedent, but its bare assertion that a genuine “public use” test “proved to be impractical given the diverse and always evolving needs of society” shows how unreliable the “living Constitution” is as a guarantor of rights not favored by the elites from which the Court’s members are drawn.  It’s hardly a surprise that justices who will willy-nilly invent rights that aren’t in the Constitution will ignore rights that are. 

For an explanation of this recurring feature, see here. 

Playing Politics With the Study of Politics


It may be a little tangential to Bench Memos concerns (though not much), but I’ll make free here to point readers to my main-page NRO piece on the gay-marriage debate going on in the American Political Science Association.  Charlotte Allen writes about the same subject–making many of the same points–in today’s Wall Street Journal.

“This Week” Next Week


Next week, instead of my usual “This Week in Liberal Judicial Activism” feature, I’ll have daily entries.  So many of the Court’s worst rulings have come in the last week of June that, even after excluding lots of worthy contenders, I have far too much for a single posting.

O, Canada!


After Roe, Boumediene, and so many other usurpations, what other realms that are none of their business might five or more justices stick their noses—and their decrees—into?  Canada’s courts seem to be in the Left’s avant-garde, so Eugene Volokh’s mock-parody account of an actual Quebec superior court ruling may provide some inkling of what’s down the road.  His first line (which I gather may have been the original online title of a Globe and Mail article):  “Court Reverses Father’s Decision to Ground Daughter by Keeping Her from a School Overnight Trip.”

Where’s the Outrage?


Today’s 5-4 opinion in Kentucky Retirement System v. EEOC  is noteworthy primarily in the respect that you’re unlikely to hear much mention of it.


By objective measures, the case—holding that Kentucky’s disability benefits plan does not discriminate against workers based on age—has almost all the makings for the usual liberal outrage about how a five-member majority under Chief Justice Roberts is hostile to employment-discrimination claims.  According to the dissent:


– The majority “ignores established rules for interpreting and enforcing one of the most important statutes Congress has enacted to protect the Nation’s work force from age discrimination, the Age Discrimination in Employment Act of 1967.”


– The majority “undercuts [the] basic framework” under which “[d]isparate treatment on the basis of age is prohibited unless some exemption or defense provided in the Act applies.”


– “Kentucky’s facially discriminatory disability benefits plan … rests on a stereotypical assumption that itself violates the Act.”


– The majority is creating “unevenness in administration, unpredictability in litigation, and uncertainty as to employee rights once thought settled.”


– The majority “ignor[es] the statute and our past opinions” and reads into the Act a requirement that “even when it is evident that a benefits plan discriminates on its face on the basis of age, an ADEA plaintiff still must provide additional evidence that the employer acted with an ‘underlying motive’ to treat older workers less favorably than younger workers.”


And so on.


This is the very sort of ruling that would be the subject of New York Times editorials labeled “Our Cruel Court”, that would be included as sleeper surprises in wrap-up summaries of the Court’s term, and that would lead to Capitol Hill press conferences in which angry Democrats would announce their intent to introduce new legislation.


Except ….  Except that Justice Breyer wrote the majority opinion and that Justices Stevens and Souter (along with the Chief Justice and Justice Thomas joined it), and that Justice Kennedy wrote the dissent and that Justices Scalia and Alito (along with Justice Ginsburg) joined it.  In short, the case is missing the critical ingredients for bashing the Roberts Court.  And, as a result, I’’ll dare to predict, you’re likely to hear little or nothing about this case beyond the standard day-after articles on the Court’s rulings today. 


(For what it’s worth, I have not studied the opinions sufficiently carefully to form a judgment as to who is right.)   

Mr. Edwards’s Neighborhood


The difference between the majority in Indiana v. Edwards, decided earlier today by the Supreme Court, and the dissent may turn out to be, practically speaking, minuscule. But the question Edwards presented is rich in nuance, especially for legal conservatives, and most especially for originalists.

Let me explain.

Edwards is a Sixth Amendment right-to-counsel case. The criminal defendant — Mr. Edwards — was a borderline schizophrenic who was, after several evaluations and hearings, found “competent” to stand trial. Being “competent” to stand trial does not take much; it means that Edwards was able to understand the nature of the proceedings against him and to to assist in his defense. This standard has nothing to do with actually assisting in one’s defense, or with really paying any attention to what is happening at trial. Some perfectly able — that is, “competent” — defendants sit idly through their trials, their minds a million miles away. They aimlessly doodle on legal pads in front of them, occasionally sneaking a peak at the cutest gal on the jury. Their curious, and often counterproductive, indifference creates no legal issue at all.

Mr. Edwards was like these guys, but different. He did not care to “assist” in his defense one bit. He wanted to do it all by himself. He wanted no part of the public defender’s services and, relying upon the Court’s 1975 holding in Faretta v. California, he asserted his Sixth Amendment right of self-representation. That case said that a defendant has a constitutional right to proceed without counsel provided that he “voluntarily and intelligently elects to do so.” It is important to note that Faretta did not concede anything to a defendant’s lack of legal skill or training: trial judges could apply the same rules of procedure and evidence to the uncomprehending, bungling pro se defendant as they would to seasoned attorneys.

The tricky thing in today’s case was this (as expressed by the trial judge): “[H]e’s competent to stand trial but I’m not going to find he’s competent to defend himself”; Though he jumped the low hurdle of “competence” (described above), Edwards was scarcely coherent and could, apparently, be counted on to accomplish nothing useful in his own defense. So the trial judge assigned him a lawyer Edwards did not want. The lawyer performed competently. Edwards was nonetheless convicted. He appealed and sought a new trial, citing the judge’s denial of his right of self-representation.

The Supreme Court affirmed the trial court’s position, in an opinion joined by all the Justices save for Scalia and Thomas, who dissented. The majority took the view that “competence” could be broken into two layers or meanings, and that a state could insist that each kind be established before permitting self-representation: “competence” to stand trial and “competence to conduct a trial. The majority offered several supporting considerations, the most important of which (in my judgment) was that a fair trial is both morally and constitutionally a predicate to just punishment of criminals who did not plead guilty. The integrity of punishment — indeed, its moral licitness — could override a defendant’s desire to proceed pro se.

The dissent took the view that, once a competent defendant makes a competent (“knowing and intelligent”) waiver, there is an end to it. At least implicitly, Justice Scalia (joined by Justice Thomas) rejected the majority’s conclusion that the state could insist on a “fair trial” in every case, no matter what the defendant wishes to do.

Now, why is the practical difference between these positions potentially inconsequential. First, pro se defendants are rare. Trial judges try very hard to dissuade any defendant thinking of flying solo. Judges go so far as to say, in blunt terms, that going pro se is the same thing as going to jail, that without a lawyer they are very very likely to be convicted after trial. Second, the number of defendants who ignore these dire warnings and who also exhibit mental illness as did Mr. Edwards is going to be very small indeed. Third, every defendant who goes pro se is required to observe courtroom decorum and all the applicable legal rules. (See “important to note”, above.) Every member of the Edwards Court agreed that failure to do so could result in termination of self-representation. We are talking, then, about a tiny fraction of that small number of criminal defendants who want to take the stage themselves: those who are not so troubled as to be disruptive, but who are still too troubled to be even minimally functional. Lastly, the Edwards majority rule is permissive. It does not require states to appoint counsel in such cases; it simply permits it. The Indiana trial judge could have decided to put up with Mr. Edwards decorous but awful defense. This may indeed be how most courts decide to handle the rare case like Edwards’. It is creates no appellate issue, and it is the surer road to a conviction.

Edwards may amount too little in practice. But it is rich in theory. I have already suggested one reason why it is, especially for originalists: the conflict between two important moral norms, each with profound bases in the constitutional text. It is not readily apparent which should be seen as paramount.

The majority was attached to the idea that a minimally fair trial is the prerequisite of lawful punishment (at least for those who do not confess their guilt). This norm is part of the Due Process Clauses of the Fifth and Fourteenth Amendment. It is (I think) part of the what the explicit guarantees of trials in criminal cases — found in Article III and in Amendment VI — actually mean: a real trial, a genuine test of the People’s proof, a trial in substance as well as in form. The community’s concern here is not paternalistic, nor is it some collective interest of the many, who seek their way at the expense of the few. The community’’s concern is fundamentally moral, and the “community” here is everyone, including Mr. Edwards. Prisons do not accept volunteers for a good reason: the only people who belong there are those who, in truth, deserve punishment. The only way to vindicate this right of everyone may be to insist on fundamentally sound procedures for sorting the chaff from the wheat.

The dissenters cleaved closely to the word “assistance” in the Sixth Amendment: “In all criminal prosecutions the accused shall enjoy the right to…have the assistance of counsel for his defence”. For Scalia and Thomas, counsel’s help was Edwards’s to forego. For them, the community’s legitimate interest extended only to being sure that the defendant’s assertion of right was itself competent. Scalia and Thomas also maintained that, precisely as an individual’s right, the “enjoy[ment]” in question was the perogative of the enjoyer. The dissent was suffused with a very high valuation of individual choice; Justice Scalia described the “dignity” at issue as “the supreme human dignity of being master of one’s fate rather than a ward of the state — the dignity of individual choice.”

There is an another challenge in Edwards for originalists. It is virtually certain that, as the Ratifiers understood the Sixth Amendment Counsel clause, the emphasis was on the word “all”, not on “assistance”. The main thing was that, in every case without exception, the accused could bring a lawyer if he had one. No one was obliged to represent himself because the court would not permit his attorney to appear. Asserting one’s “right” to proceed pro se in these circumstances was easy: just show up at court alone.

There is nothing in the Sixth Amendment, so far considered, about court-appointed counsel, much less about the standards for waiving it. All that comes much later, starting with the Supreme Court’s decision that the Amendment required that courts appoint lawyers for those unable to afford one, precisely so that there would be some assurance of a fair trial. The key case is Gideon v. Wainwright, 1963. So long as that holding and its reasoning are left unquestioned — as they were by all the Justices in Edwards — the really hard question is, I think, this: may an accused waive appointed counsel where the trial judge determines that the lawyer is essential to a fair trial. Any light shed on this hard question by the Sixth Amendment may be indistinct, and indirect.

One reason I think so is the far-reaching ways in which criminal trials have changed since the founding, changes which complicate the originalist’s resolution of a conflict (such as in Edwards) between proper individual autonomy and morally legitimate criminal adjudication. For example: criminal trials in 1789 were much less encumbered by technical rules of evidence and procedure than they are today. Jurors were much more likely to know the parties involved and, sometimes, to know more than a little about what actually happened before hearing any of the evidence. They were, after all, neighbors in what were by today’s standards tiny island communities. Today’s trial judge is supposed to be a completely neutral umpire who lets each side marshal the evidence as it pleases, who then instructs the jury according to pattern instructions, and who then sits back and waits for them to decide. The trial judge of yesteryear was (for better and for worse) much more directive and involved, cajoling jurors and steering them towards the right result. Back then the criminal defendant was generally prohibited from taking the witness stand; the only way he could talk directly to the jurors was by being his own lawyer. Today, defendants are everywhere permitted to testify, and many do. Lawyers were scarce in 1789, and their learning meager. They were much less the masters of arcane knowledge, operating the levers of a esoteric system, than they are now. They were not routinely appointed for indigent defendants until the twentieth century. In state and local criminal trials, there often was no legal professional acting present at all; lay judges presided over criminal case prosecuted by a complaining witness.

For all these reasons, I think that the criminal trial of 1789 would remind us much more of today’s small claims proceeding — in its informality and in its design to function justly without legal professionals on each side — than it would remind us of today’s felony trial. For that reason, I think, too, that whatever the Ratifiers are heard to say about Mr. Edwards’ case must be used with special care. This is not to suggest that originalism has taken a vacation, much less that it should be pensioned off. It is rather to say that Edwards is a great opportunity to refine and thereby to improve the only sound basic theory of constitutional interpretation that there is.

Today’s Opinions


Five rulings today.  A quick initial summary, with the usual thanks to SCOTUSblog:


Three majority opinions by Justice Breyer:  a 5-4 ruling (with an odd alignment:  Kennedy’s dissent was joined by Scalia, Ginsburg, and Alito) on an age-discrimination issue in Kentucky Retirement System v. EEOC; a 6-1-2 ruling (Kennedy partially dissenting, Scalia and Thomas dissenting) on an ERISA issue in Metropolitan Life Insurance Co. v. Glenn; and a 7-2 ruling (Scalia and Thomas dissenting) against a criminal defendant’s Sixth Amendment right to represent himself in Indiana v. Edwards.


A majority opinion by Justice Souter in Meacham v. Knolls Atomic Power Laboratory on a burden-of-persuasion issue on an age-discrimination claim.  Separate concurring opinion by Scalia; partial dissent by Thomas.


A majority opinion by Justice Stevens (with Breyer and Ginsburg dissenting) on a NLRA preemption issue in Chamber of Commerce v. Brown.


It now seems clear that either Scalia or Souter was assigned the lead opinion in District of Columbia v. Heller (the Second Amendment case).


I may have more commentary after I’ve read the opinions.


Update:  I’ve fixed a couple bad links.

Supreme Court Status Check


As this report prepared by attorneys at Mayer Brown nicely presents, the Supreme Court still has 15  cases—more than 20% of its total for the term—awaiting ruling before the justices take their summer break, probably at the end of next week.  Announcement sessions at 10:00 are set for tomorrow and next Monday.  One or perhaps two additional announcement sessions will likely be set for later next week.


Prominent among the Court’s remaining cases are the Second Amendment case (District of Columbia v. Heller), a case (Kennedy v. Louisiana) presenting the question whether capital punishment for the crime of raping a child violates the Eighth Amendment, and a campaign-finance case (Davis v. FEC) concerning the constitutionality of the so-called “millionaires amendment”.


Of the 15 pending cases, one was argued in January, two in February, four in March, and eight in April.


On average, each justice should be assigned to write seven or eight majority opinions.  So far this term, the Chief Justice and Justices Thomas and Ginsburg lead the pack with seven majority opinions each.  Justices Souter and Breyer trail with four apiece.  So expect a bunch of Souter and Breyer majority opinions—preferably in cases that don’t present much potential for messing up the law.

You Can Even Try This At Home


My colleague Rick Garnett has taken on the sad but necessary job of refuting the even sadder arguments of our former colleague Doug Kmiec on Obama-on-abortion.   If it were just about Doug’s perplexing recent moves, I would say nothing further.  But it is about more than that.  Doug’s arguments are new to him.  But they are the familiar themes of self-styled “pro-lifers,” many of them Catholic, who voted for Kerry despite his awful record on abortion, and who will vote for Obama despite his.  About this position, I have two observations.

The first observation is that the position is not at all interesting (though it is still troubling) if these “pro-lifers” are duds.  What I mean is that, if but only if someone believes that people begin at conception, is that person’s support of Obama (so far considered) a real man-bites-dog story.  Then (but only then) is there a tale to tell, a justification on order.  Or, as Ricky said so often to Lucy: then “there’s some ‘splaining to do.”  After all, if you think people begin later  — at viability or birth, for example — it makes perfect sense to support Obama and to oppose McCain, at least as far as abortion goes.

The second observation is a test to distinguish duds from live ammo.  Take any story told by a self-identified “pro-life” Obama supporter.  Take out the word “abortion” wherever it appears.  Eliminate all explicit mention of the “fetus” or the “unborn”.  In general, change the subject from “abortion” to “obesity”, and see if the story reads just fine, if it still makes perfect sense.  (Well, as much sense as before.)   If it does, you have a dud on your hands. 

For: obesity is an undesirable but basically self-regarding state of affairs; something that should indeed be rare, but isn’t and won’t be; a condition which typically results from imprudent and even undisciplined behavior, but which sometimes results from circumstances beyond an overweight person’s control.  (These would be called “hard cases.”)  Public authority can and should discourage obesity, but no one thinks making it illegal would be productive.  Even to do more than moderately discourage obesity would intrude too far into people’s privacy.  

Abortion, on the other hand, is a grave injustice which kills over a million Americans a year.  So, here is another test of whether someone is really a “pro-life” Obama fan.  Take out all the abortion references in his or her story, just like before.  But don’t insert “obesity” instead.   This time, insert the phrase (something like)  “kills someone else.” 

If the story now makes no sense — indeed, if the story send chills up and down your spine — you have a dud on your hands, too.

Courting Defeat


In today’s Washington Post, at the outset of a column that unfairly attacks John McCain for his criticism of the Boumediene ruling conferring constitutional habeas rights on Guantanamo detainees, Ruth Marcus expresses her hope that conservatives succeed in turning the Supreme Court into a major election issue.  I believe that Marcus grossly misestimates how a well-informed public would assess the relative prospects of McCain and Obama appointees to the Court.  Consider:


1.  Marcus observes that “the addition of one or two conservative justices could mean, if not Roe’s explicit demise, then a dramatic curtailing of the right to choose.”  Overturning (or limiting) Roe would, of course, mean merely the restoration of abortion policy to the democratic processes, so the people, through their legislators, would be determining the scope of the euphemistic “right to choose”.  The more American citizens understand that, and the more they recognize that Roe imposes the most radical abortion regime in the civilized world (essentially unrestricted abortion throughout all nine months of pregnancy), the more they support ending the judicial power grab that Roe effected.


2.  Marcus observes that “the court is at a tipping point on issues that range from the scope of presidential power to the separation of church and state to the future of affirmative action.”  Perhaps so.  On all these issues, the Left of the Court has been far to the left of American citizens.


3.  As importantly, Marcus utterly ignores lots of other issues that Stuart Taylor has identified on which Supreme Court picks by Obama would present a real threat (in Taylor’s words) of further “displacing democratic choices with made-up constitutional law” and of “strangulation” of representative government:


Based on the wish lists published by liberal judges and law professors, justices who fit Obama’s description [of his model appointee] might well invent federal constitutional rights not only to gay marriage but also to Medicaid abortions, physician-assisted suicide, human cloning, and perhaps free medical care, food, and housing for poor people; strike down the death penalty (as Stevens recently advocated) and laws making English the official language; ban publicly funded vouchers for poor kids to attend parochial schools; bless ever-more-aggressive use of racial and gender preferences; and more.


Hmmm, I wonder how the American people generally stand on these issues—and on the threat of judicial power grabs on them.


Of course, my assessment is based on the assumption of a “well-informed” public.  Marcus’s column, alas, seems more likely to misinform.  Let’s look at her attack on McCain’s criticism of Boumediene:


First, in manifest illogic, Marcus imagines that McCain’s criticism of Boumediene as “One of the worst decisions in the history of this country” somehow implies that he thinks that it’s worse than Roe.  Why can’t both be among the Court’s worst decisions?  (Marcus’s criticism of McCain’s “evolving reactions” to Boumediene is also unfair.  He said the day the ruling was issued that it “obviously concerns me,” and he offered his “one of the worst decisions” assessment the very next day.  How does the fact that he reserved his stronger criticism until he had absorbed, and been advised on, the ruling remotely indicate that “legal issues are not at the center of McCain’s policy interests”?)


Second, Marcus thinks that McCain’s “reaction makes little sense” given his vow to shut down Guantanamo and ship its detainees to Fort Leavenworth.  But McCain presumably understood that foreign detainees shipped from Guantanamo would be governed by procedures like those that the Boumediene majority declared inadequate, not that they would have habeas rights (under “a set of shapeless procedures to be defined by federal courts at some future date,” in Chief Justice Roberts’s words) as a first resort.


Third, Marcus assures us that the Boumediene ruling “will not have anywhere the disastrous consequences forecast” by Justice Scalia and McCain” because (as one of her two reasons) it “didn’t give al-Qaeda fighters an express ticket to federal court.”  The trusting reader might not understand that the ruling did give all Guantanamo detainees “an express ticket to federal court.”  All that Marcus is referring to is that the majority said that “it likely would be both an impractical and unprecedented extension of judicial power to assume that habeas corpus would be available at the moment the prisoner is taken into custody.”  In other words, enemy terrorists seized, for example, on the battlefield might not have an immediate right to file a habeas petition.  Gee, golly, that’s comforting.


Fourth, Marcus states that “a big part of what we believe in is the rule of law and the notion that people can’t be held indefinitely without a fair hearing.”  Set aside for now Marcus’s failure to distinguish between American citizens and foreigners on American soil, on the one hand, and alien enemy combatants abroad, on the other.  The statutory framework that the Court found inadequate provided a “fair hearing” as part of what Chief Justice Roberts describes as “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.”  Indeed, as Robert points out, the statute provides the very protections that the Court in Hamdi v. Rumsfeld said must be made available to U.S. citizens detained on American soil.  It’s the Court’s ruling in Boumediene—its defiance of sound precedent and what Roberts aptly calls its “constitutional bait and switch”—that is the biggest offense against the rule of law. 


Let’s hope that the American public is better informed about the Supreme Court between now and November—and that Marcus gets her wish about the role that the Supreme Court plays in the presidential election.

Re: Will-ful Disregard


George Will’s attack on John McCain’s position on Boumediene stands or (as I believe clearly to be the case) falls on its own merits.  That said, it’s worthwhile, if dispiriting, to compare the current George Will to the old one (or, rather, the younger one).  Here’s what a hasty (and certainly not exhaustive) review of Will’s pre-2002 writings reveals:


1.  In a November 2001 column, Will defended “President Bush’s revival of the traditional wartime option of trying unlawful foreign belligerents in military tribunals.”  In particular, Will recognized that “judicial interpretations, mostly made in the context of the normal problems of criminal law, … cannot be applied, unamended, to the problem of protecting society against a large foreign-based conspiracy to commit mass murder repeatedly.”  The contrary view, held by “some professional hysterics, such as New York Times editorialists,” reflects a “foolishness of recent decades—a fetishism of rights without parameters.”  “Far from ‘shredding our Constitution,” the use of military tribunals is a “traditional, lawful” way to deal with “alien terrorists”.


The military tribunal question is of course legally distinct from the question of constitutional habeas rights for aliens held abroad, but the insights that informed Will’s November 2001 column seem to have abandoned him.


2.  Unsurprisingly, the younger Will did not consider vigorous criticism of a Supreme Court decision to be tantamount to asserting that the members of the majority are “fools or knaves” (as opposed to folks who have done something foolish or knavish).


In September 2000, Will strongly criticized the Court (and courts generally) for “inventing a privacy right to be a scythe for mowing down virtually all restrictions on abortion and sexual activity,” for having “radical personal autonomy—‘choice’—trump the very notion of public standards of propriety,” and for “cleansing the public square of religious expression.” 


In November 2000, Will condemned “contemporary liberalism” for “imposing its will—about abortion, racial preferences, capital punishment, tobacco, firearms, etc.—through litigation rather than legislation” and for its “fondness for judicial fiat rather than democratic decision-making.”


In June 1987, he called attention to the Court’s “sudden discovery of yet another constitutional right”—a 5-4 ruling that the Eighth Amendment is violated “if a state presents jurors with evidence of the impact of a murder on the victim’s family”—and he expressly did so “[a]t the risk of—no, for the purpose of—inflaming the body politic.”  In his words, the “majority’s rickety argument rests on a preposterous principle.”


In July 1988, Will criticized a 5-justice majority’s ruling that “erected a rickety statistical scaffolding to support the conclusion that there exists an evolved American ‘standard of decency’ opposed, categorically, to executions of anyone under 16.”


In November 1976, Will stated that reasons to oppose capital punishment “cannot be found in the Constitution.”


Is there any way to restore the younger Will?

Kmiec’s Efforts to Persuade Still Fall Short


In his Chicago Tribune piece, describing glowingly his meeting with Sen. Obama, Prof. Doug Kmiec writes:

The discussion dwelt at some length on abortion. Obama said he earnestly wants to “discourage” the practice — despite the distortions of some who think if they affix the “pro-abortion — won’t overturn-Roe-label” to the senator, pro-lifers like myself won’t give him the time of day. Sorry, good friends, not this year.

It’s no secret that, despite my longstanding affection for him, I’ve been, so far, unimpressed by Doug’s efforts to explain how and why it is that someone who has spent decades writing and saying what he’s been writing and saying — particularly on questions of constitutional law — has suddenly transferred his affections from Mitt Romney to Barack Obama. This latest piece, and the passage quoted above, don’t help matters much (for me).

The point that some of us have been making to Doug is not that it is impossible for someone who supports Roe to also have a good-faith desire to “discourage” abortion. It is, instead, that Sen. Obama’s record, and his public statements to people who, unlike Doug, very much want to hear him offer — and do hear him offer — his full-throated, unqualified support for abortion rights, do not seem to provide a basis for concluding that, in fact, he would be willing to do anything to “discourage” abortion, other than to support social-welfare initiatives which he would support in any event. (The point here is not to criticize such programs — if they work, fine [Which reminds me, has Obama endorsed 95-10 yet?]. It is to remind Doug that these programs and efforts will come packaged with a roll-back of the few pro-life legislative and executive-branch victories that have been secured during the past decade or so.)

Abortion aside, the judges that Sen. Obama will nominate (and that the Senate will certainly confirm) will bring an understanding of constitutional law to the Court that is entirely irreconcilable with the vision that Doug has been advocating for years. Again, it’s not just about Roe. I’d like to hear Doug’s account of why it suddenly no longer matters that justices approach constitutional interpretation as he has, for many years, been saying they should approach constitutional interpretation.

But, back to abortion: even if it is true — of course it is true — that overturning Roe would not end abortion, and that there are ways to reduce the number of abortions that do not involve overturning Roe — and even if we accept, as I do, that many reasonable, faithful Christians will conclude, given the givens, that their best option is to vote for Obama, the fact is that President Obama will sign legislation and issue executive orders that remove currently existing regulations, that undermine conscience-protections and religious-freedom protections for hospitals and health-care professionals who do not wish to participate in abortion, and that use public funds to pay for abortions and embryo-destroying research. This is not just about Roe, and Doug knows it. Perhaps there are “distortions” going on, but, with all due respect, they are not coming from those who report accurately Sen. Obama’s publicly expressed views and record on abortion. “Sorry, good friend.”

Will-ful Disregard


Continuing his highly erratic course of commentary on the Supreme Court in recent years—a course that Matt Franck and (to a lesser extent) I have critiqued in numerous Bench Memos posts—George F. Will today attacks John McCain for calling last week’s Boumediene decision on Guantanamo detainees “one of the worst decisions in the history of this country.”  Let’s consider Will’s arguments:


1.  Will first asks rhetorically whether Boumediene ranks with Dred Scott, Plessy v. Ferguson, and Korematsu.  One answer is that it’s too early to know for sure.  The opprobrium that each of those decisions has earned has grown over time, and I’m willing to bet that the historical record will show that the immediate critics of those decisions also faced derision.  A second answer is that a ruling does not have to rank with what Will evidently considers the Court’s three worst decisions—where, one wonders, is Roe?—to be among the worst decisions.  A third answer is that McCain has plenty of respected company for his judgment, including, it would seem, four justices of the Supreme Court.  That alone, of course, doesn’t mean McCain’s view is right, but it does make rather strange the dripping contempt that Will displays for it. 


2.  Will calls into question whether McCain has read all “126 pages of opinions and dissents”—as though one would have to suffer through, say, Justice Kennedy’s lengthy and (to his mind) inconclusive discussion of history in order to form an assessment of the ruling.  Especially as a non-lawyer, McCain is entitled to rely on readings of key excerpts and the guidance of his advisors.


Moreover, it is far from clear that Will himself has read, or at least understood, Boumediene.  It’s striking that nothing in his discussion of the case acknowledges, much less grapples with, the elementary fact that the vaunted habeas right was being invoked, not by citizens, but by aliens abroad.  He tries to rebut Chief Justice Roberts’s criticism of the “set of shapeless procedures to be defined by federal courts” by stating his own hope that the “defining” of the habeas procedures “will be by Congress,” but he fails to note that the Boumediene majority states that such matters “are within the expertise and competence of the District Court to address in the first instance” (with later instances contemplated to be undertaken by reviewing courts).  More broadly, Will doesn’t present, much less rebut, the core arguments of the dissenters, and he seems to think that his observation that “public hearings might benefit the Bush administration” counts as some sort of legal argument.


3.  Will finds conclusive his observation that “there are not five fools or knaves” on the Court.  Under that shoddy reasoning, nothing that the Court would do could be labeled foolish.  But, of course, the history of mankind demonstrates that plenty of folks who are not complete fools or knaves are capable of doing foolish or knavish things.  (Chief Justice Taney in Dred Scott, for one apt example.)  To observe, as Will does, that the question in Boumediene “is a matter about which intelligent people of good will can differ” is not to establish that neither side can possibly be wrong—indeed, terribly wrong.

Second Circuit Shenanigans


A remarkable opinion last week by highly regarded Second Circuit judge (and Clinton appointee) José Cabranes exposes some apparent shenanigans by three members of a Second Circuit panel and a district judge.  Cabranes’s opinion, joined by five of his colleagues (including Chief Judge Jacobs), dissented from his court’s narrow 7-6 denial of en banc rehearing in Ricci v. DeStefano.  


In Ricci, 19 white firefighters and one Hispanic firefighter charged that New Haven city officials engaged in racially discriminatory practices by throwing out the results of two promotional exams.  As Cabranes puts it, “this case presents a straight-forward question:  May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another?”


The district judge, Janet Bond Arterton, issued a 48-page summary-judgment order ruling against the firefighters.  Summarizing Arterton’s opinion, Cabranes clearly finds highly unusual that Arterton could grant summary judgment for the city officials notwithstanding her acknowledgement that the evidence was sufficient to enable a jury to find that the city officials “were motivated by a concern that too many whites and not enough minorities would be promoted.”  Further, Cabranes finds it remarkable that such a “path-breaking opinion” was “nevertheless unpublished.”  

On appeal, Cabranes’s account suggests, the judicial effort to bury the firefighters’ claims got worse.  In a case in which the parties “submitted briefs of eighty-six pages each and a six-volume joint appendix of over 1,800 pages,” in which two amicus briefs were filed, and in which oral argument “lasted over an hour (an unusually long argument in the practice of our Circuit),” the panel, consisting of Clinton appointees Rosemary Pooler, Robert Sack, and Sonia Sotomayor, “affirmed the District Court’s ruling in a summary order containing a single substantive paragraph”—which Cabranes quotes in full and which gives the reader virtually no sense of what the case is about.  Four months later, just three days before Cabranes issued his opinion (and in an apparent attempt to preempt it), “the panel withdrew its summary order and published a per curiam opinion that contained the same operative text as the summary order, with the addition of a citation to the District Court’s opinion in the Westlaw and LexisNexis databases.”  As Cabranes sums it up:


This per curiam opinion adopted in toto the reasoning of the District Court, without further elaboration or substantive comment, and thereby converted a lengthy, unpublished district court opinion, grappling with significant constitutional and statutory claims of first impression, into the law of this Circuit.  It did so, moreover, in an opinion that lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal.  Indeed, the opinion contains no reference whatsoever to the constitutional claims at he core of this case, and a casual reader of the opinion could be excused for wondering whether a learning disability played at least as much a role in this case as the alleged racial discrimination.


And then this killer understatement:


This perfunctory disposition rests uneasily with the weighty issues presented by this appeal.


Cabranes and his five colleagues clearly believe that the panel members—Pooler, Sack, and Sotomayor—acted as they did in order to prevent en banc or Supreme Court review of the firefighters’ claims.  [Note:  I amended the foregoing sentence on 6/17 to add the en banc point.]  Cabranes’s opinion expresses his “hope that the Supreme Court will resolve the issues of great significance raised by this case” and his judgment that plaintiffs’ claims are “worthy of [Supreme Court] review.”


It’s worth noting that the highly controversial—but not highly regarded—Sotomayor is mentioned often as a likely Supreme Court pick in an Obama administration, largely because she is Hispanic and partly because it is thought that the fact that she was nominated to the district court by President George H.W. Bush (as part of a broader deal with Senate Democrats—see point 1 here) may provide useful camouflage.


(Cabranes’s opinion begins on the ninth page of this Second Circuit order.  An opinion that responds to parts of Cabranes’s opinion (and that is joined by, among others, Pooler, Sack, and Sotomayor) begins on the third page.)

Today’s Rulings


According to SCOTUSblog, the Court issued two rulings today:  a ruling, by the bad 5-4 split (majority opinion by Justice Kennedy), on an immigration issue in Dada v. Mukasey, and a 7-2 ruling on a bankruptcy issue (majority opinion by Justice Thomas) in Florida Dept. of Revenue v. Piccadilly Cafeterias.  

Former Kennedy Clerk on Boumediene


From an e-mail that a former clerk to Justice Kennedy sent me about Kennedy’s majority opinion last week in Boumediene v. Bush:  “The opinion is dishonest, hypocritical, a huge burden on DOJ and DOD, and potentially very dangerous.  And AMK [Kennedy] will soon be off to Salzburg to be feted by his friends. . . .”

This Week in Liberal Judicial Activism—Week of June 16

Murder as social awareness, and other obscenities:
June 17 1974—Jacob John Dougan and four other members of his Black Liberation Army begin implementing their plan “to indiscriminately kill white people and thus start a revolution and a race war.”  Armed with a pistol and a knife, they pick up an 18-year-old white hitchhiker, Stephen Anthony Orlando, drive him to a trash dump, stab him repeatedly, and throw him to the ground.  As Orlando writhes in pain and begs for his life, Dougan puts his foot on Orlando’s head and shoots him twice—once in the chest and once in the ear.  Later, Dougan makes tape recordings bragging about the murder and mails them to Orlando’s mother and to the media.  Sample content:  “He [Orlando] was stabbed in the back, in the chest and the stomach, ah, it was beautiful.  You should have seen it.  Ah, I enjoyed every minute of it.  I loved watching the blood gush from his eyes.” 

In 1992, on Dougan’s sixth appeal to the Florida supreme court, three dissenting Florida justices opined that the death penalty was a disproportionate sentence under the circumstances.  Justice Parker McDonald’s dissent, joined by chief justice Leander Shaw and This Week Hall of Infamy inductee Rosemary Barkett, included these remarkable observations (emphasis added):

“This case is not simply a homicide case, it is also a social awareness case.  Wrongly, but rightly in the eyes of Dougan, this killing was effectuated to focus attention on a chronic and pervasive illness of racial discrimination and of hurt, sorrow, and rejection.  Throughout Dougan’s life his resentment to bias and prejudice festered.  His impatience for change, for understanding, for reconciliation matured to taking the illogical and drastic action of murder.  His frustrations, his anger, and his obsession of injustice overcame reason.  The victim was a symbolic representation of the class causing the perceived injustices.”

The events of this difficult case occurred in tumultuous times.  During the time of the late sixties and early seventies, there was great unrest throughout this country in race relations.…  I mention these facts not to minimize what transpired, but, rather, to explain the environment in which the events took place and to evaluate Dougan’s mind-set.”

“Understandably, in the eyes of the victim, or potential victims, the aggravating factors clearly outweigh the mitigating; in the eyes of the defendant, his friends, and most of those situated in the circumstances of Dougan, the death penalty is not warranted and is disproportionate to the majority of hate slayings, at least where the victim is black and the perpetrator is white.” 

“In comparing what kind of person Dougan is with other murderers in the scores of death cases that we have reviewed, I note that few of the killers approach having the socially redeeming values of Dougan.”  (This apparently refers to the dissent’s earlier observations that Dougan was “intelligent,” “well educated,” “a leader in the black community,” “taught karate and counseled black youths,” and once “participated in a sit-down strike in defiance of a court order” at a lunch counter that refused service to blacks.)   


June 18

1980—Mere months before losing his bid for re-election, President Jimmy Carter puts ACLU activist Ruth Bader Ginsburg on the D.C. Circuit.  Carter had nominated Ginsburg only two months earlier.


June 20

2002—In Atkins v. Virginia, the Court, in an opinion by Justice Stevens (for a majority of six justices), relies on the “direction of change” in state laws, the views of the supposed “world community” and of various professional and religious groups, and polling data to rule that execution of anyone who is even slightly mentally retarded violates the “evolving standards of decency” that it sees as governing application of the Eighth Amendment.  (A person who has properly been found competent to stand trial, who is aware of the punishment he is about to suffer and why, and whose subaverage intellectual capacity has been found an insufficiently compelling reason to lessen his responsibility for a crime may nonetheless be “mentally retarded”.) 

In dissent, Justice Scalia marvels at the majority’s ability to extract a “national consensus” from the fact that 18 of the 38 states that permit capital punishment have recently enacted legislation barring execution of the mentally retarded.  Moreover, Scalia charges, the majority’s assumption that judges and juries are unable to take proper account of mental retardation “is not only unsubstantiated, but contradicts the immemorial belief, here and in England, that they play an indispensable role in such matters.”    


June 21 

1973—In their dissents in Paris Adult Theatre I v. Slaton, Justice Douglas reiterates his belief that obscenity is fully protected by the First Amendment, and Justice Brennan, joined by Justices Stewart and Marshall, expresses the same position, “at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults.” 

For an explanation of this recurring feature, see here.


The Kennedy Rule–And Corollary


Due to some ongoing travel, I’ve been unable to comment on the Boumediane ruling, and I won’t be able to say much for several more days, as I’ll be moving around too much to read the whole thing and comment in detail.  But I first heard the news in my car from Rush Limbaugh on Thursday, and within seconds I realized how easy it was to know the essence of the story.  A five-justice majority led by Justice Kennedy holding against the government?  I knew it was bad.

Three years ago, when Justice O’Connor announced her (sadly delayed) departure from the Supreme Court, I mentioned the “O’Connor Rule” I teach my students: “If the Court has declared anything unconstitutional, and the vote was 5-4, and the fifth vote was provided by O’Connor, the case was wrongly decided.”

Now that becomes the Kennedy Rule, with the Kennedy Corollary: If the opinion of the Court in such a case was written by Justice Kennedy, it was incoherently reasoned.  I promise this presumption will work every time

Such Clarity!


In a “news analysis” in today’s New York Times, Linda Greenhouse makes a number of bizarre observations, including that the Supreme Court has not been “a campaign issue” for “many election cycles” and that Justice Scalia’s dissent in Lawrence v. Texas somehow “may have had the effect of investing [same-sex marriage] with an aura of plausibility that it had not previously enjoyed”—and thus may have helped bring about the Massachusetts supreme court’s 2003 Goodridge decision.  Ah, yes, surely Massachusetts chief justice Margaret Marshall (aka Mrs. Anthony Lewis) was taking her cues from Scalia rather than from the Lawrence majority.  Further, Greenhouse displays her usual balance, as she quotes only Larry Tribe’s psychologizing of Scalia.  Greenhouse and Tribe may well prefer that Scalia acquiesce quietly in the Supreme Court’s lawlessness, but American citizens should instead be grateful that he highlights the Court’s usurpations.


Perhaps most remarkable in Greenhouse’s article is this passage (emphasis added):


In his dissent in the Guantánamo case, Justice Scalia accused the majority of harboring the “ultimate, unexpressed goal” of extending the ruling far beyond the United States naval base in Guantánamo Bay, Cuba, to give courts “the power to review the confinement of enemy prisoners held by the Executive anywhere in the world.”

To the contrary, Justice Kennedy’s analysis made clear that the decision was limited to Guantánamo by the special nature of the American installation there as well as by the remoteness of the base from any zone of hostilities.


“To the contrary”?  “made clear”?!?  There is little (beyond the bottom-line conferral of constitutional habeas rights on alien Guantanamo detainees) that is clear in Kennedy’s opinion, and I don’t see—and Greenhouse does not quote or cite—any part of his opinion that suggests that its principles could not apply beyond Guantanamo.  As Scalia points out, Kennedy’s opinion adopts a “functional” test in which “at least three factors are relevant,” including “the nature of the sites where apprehension and then detention took place”—what, pray tell, are the bounds of “de facto sovereignty”?—and “the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.”  Among other things, Kennedy distinguishes Landsberg Prison in Germany in 1950 on the ground that “the prison was under the jurisdiction of the combined Allied Forces.”  


Greenhouse contends that the proposition that “prisoners at the Bagram Air Base in Afghanistan or in Iraq” should have constitutional habeas rights “would be unlikely to get any votes, let alone five, from the current justices.”  Oh, really?  Imagine that the Administration tomorrow moved all Guantanamo detainees to Afghanistan or Iraq.  Moreover, as the modern history of the Court too amply shows, while extensions of unsound principles or malleable tests might seem unthinkable one day, soon enough—especially when they involve the expansion of judicial power—they often become Supreme Court holdings.  Scalia soundly recognizes that bad reasoning in majority opinions needs to be taken seriously.


Addendum:  I should have pointed out (as Greenhouse does not) that the goal that Scalia imputes to the majority rests expressly on the majority’s rationale that if habeas were not available to Guantanamo detainees, “it would be possible for the political branches to govern without legal constraint.”  As Scalia observes, that rationale would require that habeas be available to aliens detained anywhere in the world, and the majority’s “inherently subjective” test would make such a result possible.



Given my perhaps mistaken crediting of the LA Times’s initial report on Judge Kozinski’s website postings, I’d like to call attention to Eugene Volokh’s perspective on the matter.  (Again, I don’t intend to follow this matter closely.)

McCain and Marriage


One reason social conservatives are wary of McCain is his vote several years ago against the Federal Marriage Amendment. That proposal would have made it impossible for states (such as California and Massachusetts) to make anything but the union of man and woman a marriage. McCain’s position owed nothing to ambivalence (or worse) about traditional marriage; in fact, he was a conspicuous advocate of Arizonans’ more recent attempt to amend their state constitution to ban same-sex “marriages.” McCain’s opposition to the FMA owed instead to his conviction — which I think is sound up to a limited point — that states’, and not the nation, should be in charge of the law of marriage.

McCain’s “federalism” view could someday soon become the reason why he reverses course on the FMA. For McCain has long said — and said so again yesterday, in Philadelphia — that if any state is made to accept out-of-state “gay marriages,” then he is all for an FMA. He said yesterday: “[I]f some federal judge rules that all the states must recognize the [gay] marriages in Massachusetts, I would be in favor of pursuing a Constitutional amendment.” When California recognizes same-sex “marriages” next Tuesday — and with state authorities saying they will not limit it to California residents — the likelihood of SSM’s involuntary transmission to another state will increase exponentially.

Kudos to Senator McConnell


Over the past week or so, Senate Republican leader Mitch McConnell has shrewdly used various parliamentary tactics to encourage Democrats to move judicial nominations.  These tactics, as I understand it, include not waiving the so-called two-hour rule (which bars committees from meeting more than two hours after the Senate is in session) and not waiving the requirement that legislation on the Senate floor be read aloud by the Senate clerk. 


Senator McConnell is undoubtedly facing a lot of pressure and criticism from Senate Democrats.  Let’s hope that other Republican senators stand strong in supporting him.

NRO on Boumediene


NRO now has an excellent house editorial on yesterday’s decision.

Is It Judicial Activism Week?


James Burge, a judge in Lourain County, Ohio, has decreed that the State of Ohio’s method for capital punishment is unconstitutional, since two of the three drugs in their lethal injections used can possibly cause pain.

USA Today has the story. But the accompanying picture is worth several thousand more words.


Lithwick on Boumediene


Last week, I took part in a panel on legal blogging at the D.C. Circuit’s judicial conference.  One of the issues our panel addressed was how to sort out which online voices can be trusted and which can’t.  Unfortunately, one of my fellow panelists, Dahlia Lithwick, in her Slate essay on yesterday’s Boumediene ruling, has provided further evidence that she falls squarely in the latter category.  (Enter the search term “Lithwick” here for plenty of other examples.)


One elementary feature of fair debate is to present accurately the position and arguments you are contesting.  Consider how Lithwick does on that score in discussing Justice Scalia’s dissent.


In his dissent, Scalia discusses the “disastrous consequences” of the majority’s ruling separately from his account of its legal errors.  Among other things, he notes that at least 30 prisoners that the military had released from Guantanamo Bay have “returned to the battlefield,” and that some have “succeeded in carrying on their atrocities against innocent civilians” and against soldiers allied with the U.S.  As Scalia puts it, “Their return to the kill illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection.”  Further, the rules vaguely contemplated by the majority “will be more detainee-friendly than those now applied, since otherwise there would be no reason to hold the congressionally prescribed procedures unconstitutional.”  Thus, “the number of the enemy returned to combat will obviously increase” over what current military procedures would yield.


Here’s how Lithwick summarizes this part of Scalia’s argument:  “So you see, even those who were deemed innocent at Guantanamo are actually guilty in Scalia’s mind.”  And:  “Just to recap [Scalia’s position], then, everyone at Guantanamo is guilty.”  Set aside the sloppiness of Lithwick’s use of “guilty” and “innocent” as substitutes for being an enemy combatant or not.  There is nothing in Scalia’s opinion that indicates that he believes that “everyone at Guantanamo” is an enemy combatant.  His explicit, impossible-to-miss point, rather, is the “incredible difficulty of assessing who is and who is not an enemy combatant”—and the inevitable cost of “more detainee-friendly” procedures.  There may well be grounds for taking issue with Scalia, but misstating his position isn’t a proper way.


Lithwick’s next paragraph begins, “The claim that the majority handed Khalid Sheikh Mohammed and the others at Guantanamo the keys to the cells is absurd on its face.”  In context, a trusting reader would assume that Scalia made this claim.  In fact, neither he nor any of the other dissenting justices does so.  Rather, they make the very different complaint—incompatible with Lithwick’s straw man—that the majority has failed even to spell out the standards and procedures that should govern detainees’ habeas petitions.


Another elementary feature of fair debate is to acknowledge and correct your errors openly and promptly.  Lithwick has failed on that score in the past.  Let’s see how she does this time.


(I will place in the separate realm of misguided—rather than patently unfair or incompetent—commentary Lithwick’s argument that the real divide between the majority and the dissenters lies in the different risks they focus on:  the majority’s worry “about the very real risk of a lifetime of mistaken imprisonment” versus the dissenters’ supposed worry that habeas review “may—somewhere far down the line, and at the moment entirely hypothetically—result in the release of a detainee or (more attenuated still) the disclosure of a piece of hypothetical information that could help the terrorists in their fight against us.”  Congress did not weigh the relative risks the way Lithwick apparently does (and I wouldn’t think that any sensible American would), and the dissenters’ legal argument—as distinct from their discussion of the “disastrous consequences” of the majority’s ruling—is that the Court had no authority to override Congress’s judgment.) 

Obscuring the Point


Linda Greenhouse’s New York Times article on yesterday’s Boumediene ruling somehow fails to mention the fact that the Guantanamo detainees who supposedly have a constitutional right to challenge their detention are all aliens.  To be sure, readers might figure that out themselves.  But as that fact is critical to the division between the majority and the dissent—and to any intelligent consideration of the constitutional issue—a competent and unbiased reporter could be expected to have highlighted it.  But, of course, Greenhouse, in defiantly persisting in reporting—without appropriate disclosure—on a case in which her husband and his institutional alter ego have been active participants (as I detail in point 3 here), has forfeited any claim to be regarded as unbiased.


Also, Greenhouse’s brief account of Chief Justice Roberts’s dissent—“The focus of the chief justice’s ire [ah, yes, “ire” rather than reasoned judgment] was the choice the majority made to go beyond simply ruling that the detainees were entitled to file habeas corpus petitions”—is either unintelligible or wildly inaccurate. 

Michigan Judges to Senate Floor


While we were all pouring over the Supreme Court’s Boumediene decision, the Senate Judiciary Committee approved three judicial nominees from Michigan: Helene White and Ray Kethledge for the U.S. Court of Appeals for the Sixth Circuit, and Stephen Murphy for the district court. As readers will recall, Murphy had initially been nominated to the Sixth Circuit, but his nomination was withdrawn and resubmitted to the district court in a deal between the White House and Michigan’s Senate delegation, which insisted that White (who is related to Senator Levin) be nominated in his place. Of note, the vote on White was 11-8. All of the Republican Senators on the Comitteee, save Orrin Hatch, voted against her, citing concerns about her qualifications. Hatch said it was a “close call,” but believes (correctly in my view) that Presidents are due substantial deference in their judicial picks.

Update: Helene White was related to Senator Levin, but no longer.  She was married to Levin’s cousin, former Michigan Supreme Court Justice Charles Levin (for whom she also clerked), but they were divorced in 2006.

Boumediene—Justice Scalia’s Dissent


Various excerpts (citations omitted) from Justice Scalia’s dissent (joined by the Chief Justice and Justices Thomas and Alito):

Today, for the first time in our Nation’s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war…. The writ of habeas corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus has no application, and the Court’s intervention in this military matter is entirely ultra vires. 

The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today.  The President relied on our settled precedent in Johnson v. Eisentrager (1950), when he established the prison at Guantanamo Bay for enemy aliens.

[I]n response [to the Court’s 2006 ruling in Hamdan v. Rumsfeld], Congress, at the President’s request, quickly enacted the Military Commissions Act, emphatically reasserting that it did not want these prisoners filing habeas petitions. It is therefore clear that Congress and the Executive–both political branches–have determined that limiting the role of civilian courts in adjudicating whether prisoners captured abroad are properly detained is important to success in the war that some 190,000 of our men and women are now fighting….  What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.  

What drives today’s decision is neither the meaning of the Suspension Clause, nor the principles of our precedents, but rather an inflated notion of judicial supremacy. The Court says that if the extraterritorial applicability of the Suspension Clause turned on formal notions of sovereignty, “it would be possible for the political branches to govern without legal constraint” in areas beyond the sovereign territory of the United States.  That cannot be, the Court says, because it is the duty of this Court to say what the law is. It would be difficult to imagine a more question-begging analysis.… Our power “to say what the law is” is circumscribed by the limits of our statutorily and constitutionally conferred jurisdiction. And that is precisely the question in these cases: whether the Constitution confers habeas jurisdiction on federal courts to decide petitioners’ claims. It is both irrational and arrogant to say that the answer must be yes, because otherwise we would not be supreme.

Putting aside the conclusive precedent of Eisentrager, it is clear that the original understanding of the Suspension Clause was that habeas corpus was not available to aliens abroad, as Judge Randolph’s thorough opinion for the court below detailed.…  It is entirely clear that, at English common law, the writ of habeas corpus did not extend beyond the sovereign territory of the Crown.  

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.  The Nation will live to regret what the Court has done today.

Boumediene—Chief Justice Roberts’s Dissent


I’m not going to undertake to summarize the 126 or so pages of opinions in Boumediene v. Bush.  On the Volokh Conspiracy, Orin Kerr offers selected excerpts from Justice Kennedy’s 70-page majority opinion.  I’ll do the same here for Chief Justice Roberts’s dissent and in a later post for Justice Scalia’s.


Various excerpts (citations omitted) from the Chief Justice’s dissent (joined by Justices Scalia, Thomas, and Alito):

Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation. And to what effect? The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority’s ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants. 

It is grossly premature to pronounce on the detainees’ right to habeas without first assessing whether the remedies the DTA system provides vindicate whatever rights petitioners may claim. 

Simply put, the Court’s opinion fails on its own terms. The majority strikes down the statute because it is not an “adequate substitute” for habeas review, but fails to show what rights the detainees have that cannot be vindicated by the DTA system.

The only issue in dispute is the process the Guantanamo prisoners are entitled to use to test the legality of their detention. Hamdi concluded that American citizens detained as enemy combatants are entitled to only limited process, and that much of that process could be supplied by a military tribunal, with review to follow in an Article III court. That is precisely the system we have here. It is adequate to vindicate whatever due process rights petitioners may have.

The Court today invents a sort of reverse facial challenge and applies it with gusto: If there is any scenario in which the statute might be constitutionally infirm, the law must be struck down.

[In the majority’s view,] any interpretation of the statute that would make it an adequate substitute for habeas must be rejected, because Congress could not possibly have intended to enact an adequate substitute for habeas. The Court could have saved itself a lot of trouble if it had simply announced this Catch-22 approach at the beginning rather than the end of its opinion.

So who has won? Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the D. C. Circuit–where they could have started had they invoked the DTA procedure. Not Congress, whose attempt to “determine–through democratic means–how best” to balance the security of the American people with the detainees’ liberty interests, has been unceremoniously brushed aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges.

Boumediene Opinion


It was widely anticipated that the federal government would lose Boumediene, but the opinion is still a significant loss for the Bush Administration.  Based on a quick perusal of the opinion, it appears that Justice Kennedy’s opinion for the Court holds that the Section  7 of the Military Commission unconstitutional.  According to the Court, Gitmo detainees have habeas rights that can only be suspended through a valid invocation of the Constitution’s suspension clause.  The Court further holds that the procedures set up by the Detainee Treatment Act are not an adequate substitute for review of habeas claims in Article III courts.  Therefore, the Court concludes, the denial of federal court jurisdiction over detainee habeas claims amounts to an unconstitutional suspension of the detainees’ habeas rights.  The Chief Justice and Justice Scalia both have lengthy dissents.



I am just as puzzled as is Gary Bauer at the reluctance of pro-lifers to recognize one of their own — in this case, John McCain.  Gary suggests several means by which McCain could relieve these lingering doubts.  I agree with almost all that he says, save that I would raise as a question — and an important, consequential one — what Gary presents in a declarative sentence.  Gary agrees with my former student Matt Bowman that McCain “should pledge to nominate judges who are not only judicially conservative but also socially conservative on abortion.”  I am puzzled about that as well.

Bauer and Bowman would be quite right if the judicial position they have in mind were this: the correct answer to the constitutional question about abortion is that the unborn are entitled to Equal Protection of homicide laws if, in truth, they really are persons.  This happens to be my view, which is one reason I will never be appointed to any court. 

It is easy to see that no one who is not “socially conservative” (in this sense) would have adequate reason to be “judicially conservative.”  But the Bauer/Bowman position is the much more familiar view of Thomas, Scalia, and many other conservatives: the Constitution is silent on abortion.  Reversing Roe means it is up to the states to decide to be pro-life or pro-choice.  And there is an end to it.

The validity of this “federalism” view does not depend logically or in any other important way upon the belief that persons begin at conception.  Many people who describe themselves as politically and morally pro-choice hold it.  I suspect that even the two dissenters in Roe — Justices Rehnquist and White — were then at least moderately pro-choice. And certainly the first great scholarly critique of Roe was written by a self-described liberal on abortion, the late John Hart Ely.  Bauer and Bowman say, however, that things have gotten to the point where a judge needs (in my word) the push of moral conviction to maintain and act upon even the federalism view.  Or, perhaps, they are saying that pro-lifers are not going to be convinced about John McCain unless he says or implies that he — McCain — thinks that judges need that push.  Or perhaps a bit of both.

I just don’t know.  Nor do I know if anyone who is known to be “socially conservative” on abortion would ever — during the next administration — get the chance to be “judicially conservative” too.



According to the live bloggers at SCOTUSblog, the Court has just issued its ruling in the much-watched Boumediene case on the Military Commissions Act of 2006.  Majority opinion by Justice Kennedy rules against the government.  Chief Justice Roberts and Justices Scalia, Thomas, and Alito were in dissent.


Update:  Here’s the opinion.  Not sure when I’ll have time to read it.

Ninth Circuit Disgrace


If you imagined that the Ninth Circuit couldn’t possibly disgrace itself further, chief judge (and Reagan appointee) Alex Kozinski has, alas, proved you very wrong—by, according to this LA Times article, posting pornographic, if not outright obscene, materials on his personal website. 

Update (9:43 p.m.):  A statement from the Ninth Circuit indicates that one of Judge Kozinski’s sons was responsible for posting “much [sic] of the items” reported by the LA Times.  That statement seems in tension with Kozinski’s own statements to the Times, but now that the relevant facts are in dispute, I withdraw my assessment of Kozinski’s conduct.  (I don’t intend to follow this matter closely, but may revisit it if/when the facts are clear.)

The Heart of the Story


I have no more privileged access to John McCain’s innermost thoughts about abortion than does Matt Franck. But it does not take inside reporting to see that for over twenty years in Congress McCain voted without exception to protect unborn human beings from assault and destruction. I suppose it is theoretically possible that prospective political gain could explain such a voting regimen. But it is hard to see why someone who has bucked conservatives as often as has John McCain would so scrupulously respect life, unless he actually believes that people begin at conception and that, for that reason, they should not be killed. Even McCain’s limited concession on embryonic stem-cell research (a mistake, in my view) impliedly confirms that he knows when people begin. McCain does not suggest that IVF “spares” are just ink blots, or tissue, or sub0human biological material. Instead he argues that something good — research which would make others well — may come out of the inevitable demise of these doomed human individuals.

Tell the Whole Story


Froma Harrop of the Providence Journal seems to believe that John McCain’s pro-life stance is mere positioning for electoral advantage, and that Democrats should consider that a vote for him really wouldn’t threaten the survival of Roe v. Wade.  That’s actually two propositions, but let’s consider the first.  Harrop writes:

In a 1999 interview with the San Francisco Chronicle editorial board, McCain said, “I would not support repeal of Roe v. Wade, which would then force X number of women in America” to undergo “illegal and dangerous operations.”

Harrop goes on to say that “last year, McCain said that Roe should be overturned.  Primary politics or a change of mind?”  It’s plain she strongly suspects the former.  But Harrop’s history is incomplete, giving the impression that McCain current position that “Roe should be overturned” is one at which he recently arrived, eight long years after his remarks to the SF Chronicle, and coinciding with the renewal of his presidential ambitions.

Here’s the fuller history.  On Thursday, August 20, 1999, the Chronicle printed a story on its editors’ meeting with McCain, and ran a sidebar titled “John McCain: In His Own Words,” the first item of which was:

On abortion: “I’d love to see a point where (Roe vs. Wade) is irrelevant, and could be repealed because abortion is no longer necessary.  But certainly in the short term, or even the long term, I would not support repeal of Roe vs. Wade, which would force X number of women in America to (undergo) illegal and dangerous operations.”  McCain said he would support legislation banning abortions in the third trimester.

This leans more pro-life than Harrop’s brief version.  And the fact that (as the Chronicle paraphrased him) McCain supported a ban on late-term abortions suggests that in 1999 he still suffered from the all too common misunderstanding that Roe provided an unfettered right only to obtain early abortions.  But Roe has meant abortion on demand through the entire duration of any pregnancy ever since it was decided in 1973, and so even McCain’s desired legislation would have required the overturning of Roe.  This was, quite possibly, a confused candidate. 

Harrop is right to recall that these statements cost him something in the pivotal South Carolina primary in 2000.  But she doesn’t finish the story from 1999.  Five days after that first story, on Tuesday, August 25, the Chronicle ran a follow-up.  It reported he had been on Wolf Blitzer’s Sunday show and

said he favors the ultimate repeal of Roe vs. Wade, “but we all know, and it’s obvious, that if we repeal Roe vs. Wade tomorrow, thousands of young American women would be (undergoing) illegal and dangerous operations.”

From a pro-life point of view, this was some movement in the right direction but not enough.  The next day, Monday (same Chronicle story again), “McCain’s campaign released a clarification”:

I have always believed in the importance of the repeal of Roe vs. Wade, and as president, I would work toward its repeal. . . . But that . . . must take place in conjunction with a sustained effort to reduce the number of abortions performed in America.

I will continue to work with pro-life and pro-choice Americans so that we can eliminate the need for abortions.

Finally, for this Chronicle story on August 25, McCain, while insisting the GOP be “an inclusionary party,” stated in an interview that “yes, I want to repeal Roe vs. Wade.” 

Despite or perhaps even partly because of these “clarifications,” McCain had a bad week over this issue that summer, with rivals calling him “unintelligible” and conservative columnists decrying a betrayal of McCain’s own strongly pro-life record.  And it was a fairly long-lasting albatross in the 2000 contest, maybe a large part of the reason he lost to George W. Bush.  But with some perspective now, viewing the whole course of McCain’s career on this issue, it looks like an aberration, not a key to some tightly-held “moderate” views on abortion.  More likely it was an ill-judged tactical maneuver, in which McCain dipped his toe in the waters of a “big tent” strategy within the GOP, and even was thinking ahead to a general election campaign.  (It was only August 1999, after all, and the Bush juggernaut was not yet so apparent.)

I don’t have a window on John McCain’s soul on this matter.  Maybe he is privately as heterodox on it as Harrop insinuates.  But McCain’s publicly stated view that Roe should be overturned is not of 2007 vintage, as she seems to want us to believe.  It is the repeatedly stated view of the candidate over many years, with the exception of a moment in August 1999, which now looks like a blip on an otherwise consistent graph.  And if he “soften[s]” that view now to go after “Hillary Democrats,” as Harrop thinks is possible, he would be the loser for it, not the gainer.

Don’t Ask, Don’t Tell to High Court?


Today the U.S. Court of Appeals for the First Circuit rejected a constitutional challenge to the military’s “Don’t Ask, Don’t Tell” policy.  Federal courts had rejected such challenges before, but not since the Supreme Court’s decision in Lawrence v. Texas invalidating a Texas statute prohibiting homosexual sodomy. This could increase the chance that Supreme Court hears a challenge to the policy, as last month, the U.S. Court of Appeals for the Ninth Circuit held DADT should be subject to heightened scrutiny, and suggested the policy might be unconstitutional.  This only creates a “soft” circuit split, however, as Eugene Volokh explains here, because while the Ninth Circuit did not affirm the district court’s dismissal of the suit, it remanded the case for further proceedings rather than striking down the policy outright.

Propter Hockey


In the spirit of checking even the campaign I favor when it goes too far, I would like to upbraid John McCain’s surrogates for continuing a bit of unjustified credit-claiming.  Yesterday, repeating some self-congratulation that McCain made himself in his May 6 speech on the judiciary, Gov. Tim Pawlenty of Minnesota referred on Fox News Sunday to the “gang of 14 that Senator Obama was against that gave us Justice Roberts and Alito” (transcript via RCP).

I wish they’d stop saying this.  Not because Barack Obama can really exploit this exaggeration for any advantage, but because it’s just not true.  I was against the “Gang of 14″ deal, others were for it.  It produced some confirmations of appellate judges and doomed others.  But a resolute determination to ignore the facts of our recent history is required to assert that the deal had one iota of impact on the confirmation chances of Chief Justice John Roberts or Justice Samuel Alito.  Seats on the circuit benches are easy targets for filibusters because too few people pay close attention or have enough at stake to produce the outrage that would make senators balk at taking such a step.  But there was never, never, never any chance that either Roberts or Alito was going to be filibustered by the Democrats.  Talk of doing so was the purest fili-bluster.  And if there had been some plausible excuse for their going ahead with a filibuster, no deal by the Gang of 14 would have slowed them down for a moment.

So to Senator McCain and his surrogates: Defend the deal on its own terms or stay quiet about it, please.  But don’t try to make it responsible for Supreme Court confirmations on which it had no impact whatsoever.  It’s simply not so.