Tag Archives: Supreme Court

A Question of Trust

U.S. Senator Chris Murphy has introduced a bill that would require the Supreme Court to develop a code of ethics. (Surprising at it may seem, the high court does not have such a code, although all other courts do.)

The bill was prompted by several recent controversies over judicial recusal, especially a number of cases in which Scalia–who has grown more voluble and intemperate over the years– has spoken publicly on the merits of cases that were highly likely to come before the Court (historically, and under existing codes of ethics, a judicial no-no) and then refused to recuse himself when the cases were argued.

There has also been considerable criticism of Justice Thomas, who has failed to recuse himself in cases where his wife has a clear interest in the result. Justice Kagan has been criticized for sitting on cases in which she was involved to some extent as Solicitor General.

As a scholar of constitutional courts noted on a listserv the other day, “the US is still rare in the world in making recusal of a judge a matter for the personal decision of that judge, without any way to contest it.  In the German Federal Constitutional Court, for example, the decision to remove a judge from a particular case is made by the rest of the judges in that Senate with the judge in question not participating.    We should have some comparable process here.”

Codes of ethics are about more than recusal, of course. They are centered on avoiding even the appearance of impropriety, in recognition that the legitimacy of public institutions and especially the Courts is dependent upon public trust.

Ethics codes typically limit the value of gifts that may be accepted, or forbid their acceptance at all. That includes junkets, generously paid speaking engagements, and other activities or favors that might produce bias. And most codes of ethics require a measure of disclosure significantly greater than is current Court practice.

In a government based on separation of powers, the legislature may lack the authority to tell the Court to clean up its act–and the Court gets the final word on that issue. In a Court as ideologically divided as this one, I suppose decisions about recusal could themselves become politicized. The GOP’s Tea Party wing will probably oppose Murphy’s bill, since most of the shenanigans these days are by conservative jurists. So passage of this measure is hardly a slam-dunk.

That said, it really is indefensible that the Supreme Court exempts itself from ethical principles that apply to other judicial and administrative entities. Even Congress has a Code of Ethics, however honored in the breach it may be.

When Justice Scalia goes duck hunting with a litigant (Dick Cheney) whose case is then pending before the Court; when Thomas sits on a case despite the fact that his wife’s organization is an interested party, I think skepticism about their ability to render a dispassionate verdict is understandable–and foreseeable.

Such behavior erodes the public trust, and it greatly diminishes the stature of the Court.

There is a reason Courts should be–and be seen to be–incorruptable. They are, after all, in the business of disappointing litigants; every time someone wins, someone else loses. If credible charges of favoritism or bias can be leveled, even if untrue, citizens ultimately lose respect for the rule of law.

Judges–especially Supreme Court Justices– used to take great pains to avoid the slightest appearance of impropriety; they used to aspire to be “as pure as the driven snow.” Lately (as Mae West memorably put it), they’ve drifted.

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What Planet Do They Live On?

Yesterday, in a 5-4 decision, the Supreme Court effectively eviscerated the Voting Rights Act.

Without bothering to identify precisely what part of the constitution it violated, the Court invalidated Congress’ most recent identification, in Section 4, of the states subject to the operation of Section 5. Section 5 requires that the states so identified obtain prior approval of changes to their voting laws.

According to the majority decision, efforts to suppress minority voting are no longer a problem in the states subject to the act.  The current coverage system, according to Chief Justice Roberts, who wrote the majority opinion, is “based on 40-year-old facts having no logical relationship to the present day.”

Evidently,  the newspapers on whatever planet Roberts lives on haven’t covered the persistent and concerted efforts at vote suppression that have characterized the last two election cycles.

As the New York Times noted,

The decision will have immediate practical consequences. Texas announced shortly after the decision that a voter identification law that had been blocked would go into effect immediately, and that redistricting maps there would no longer need federal approval. Changes in voting procedures in the places that had been covered by the law, including ones concerning restrictions on early voting, will now be subject only to after-the-fact litigation.

In a saner age, the opinion would not be so devastating; it explicitly allows Congress to “update” the list of states subject to Section Five.

If we had a Congress rather than a partisan zoo, that might actually happen. As it is, however, remedial action is unlikely. When an aide to a Republican House member was asked when Congress might revisit the matter, he responded “Sometime after the Rapture.”

It’s going to get very ugly.

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Prognosticating and the Supremes

As any lawyer will attest, predicting the outcome of Supreme Court cases is foolhardy in the extreme. But I’ve never let the prospect of making a fool of myself stop me, so I’m going to go out on a limb and do just that.

Yesterday, as practically everyone within earshot of a news report knows, the Court heard the first of two important cases on marriage equality. Yesterday’s arguments dealt with the appeal of the Ninth Circuit decision striking down California’s Proposition Eight; today’s will center on the constitutionality of DOMA, the “Defense of Marriage” Act.

I expect the Court to strike down DOMA, which–among other things–allows the federal government to treat marriages recognized by different states differently. Throughout our history, laws governing marriage have been the province of state governments. DOMA allows the federal government to treat legally married citizens from some states very differently than legally married citizens from other states. I expect the Court to follow its own ample precedents on federalism and equal protection; I’m pretty confident DOMA will fall.

That said, the betting in legal quarters on Proposition 8 has always favored a Court cop-out.

When the Justices asked for briefing on the issue of standing, most lawyers following the case saw that as a signal that they were looking for a way to dispose of the case on procedural grounds, that they were looking for a way to avoid ruling on the merits of the question whether marriage–which the Court has repeatedly ruled is a “fundamental right”–must be made available to gay citizens as well as straight ones.

As disappointing as it would be to have the Court sidestep that question, a decision to the effect that only the Governor and Attorney General of California had standing to appeal the judgment (or a ruling that review had been “improvidently granted”) would have the effect of reinstating the lower court’s decision. Although such a decision would affect only California, that state has some 11% of the population of the U.S. The number of citizens living in states with marriage equality would grow dramatically, adding to the pressures that are already mounting elsewhere.

As numerous observers have noted, in the absolute worst-case scenario, the Court’s decisions in these cases can only slow the inevitable. Same-sex marriage will be a national reality within the next few years, with or without the Court’s assistance. A decision containing a ringing affirmation of equality would be lovely, but its absence will not alter the eventual result.

So there you have my predictions. I hope I’m wrong about Proposition 8, but given the questions thrown at the litigants during yesterday’s arguments, I doubt it.

At this point, we’ll just have to wait and see.

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Absence of Trust

In the wake of the Supreme Court’s decision to uphold the Affordable Care Act, I was once again reminded of how painful it has become to watch what passes for political discussion/debate in this country.

We have always had disputes about policy, about the proper role of government and the reach of the federal courts. We always will have those disagreements, and that’s how it should be. What is qualitatively different about our current discourse is the degree of suspicion and paranoia that characterizes it.  Americans simply do not trust the motives of those in government, and as a result of that distrust, we are unwilling to grant that honorable people of good will can come to different conclusions about the problems we face.

In Distrust, American Style, I investigated the sources and consequences of that distrust. The sources were easy enough to identify: for the past two decades, we’ve seen massive betrayals by businesses and Wall Street, scandals in institutions ranging from churches to major league sports, obscene amounts of money being spent on lobbying for legal advantage and more recently, poured into Super Pacs. There are undeniable reasons for our current levels of cynicism and distrust.

The problem is, when citizens don’t know who they can trust, they don’t trust anyone, and politics becomes impossible.

Yes, there are bad corporate actors–but there are also scores of good corporate citizens. Yes, there are politicians who are “on the take” and/or beholden to those who finance their campaigns, but there are also many, many good public servants who genuinely are trying to do the right thing. Yes, there are judges whose ideology drives their decision-making, but there are many more who divorce their policy preferences from their responsibility to faithfully apply the law.

Wholesale distrust makes for toxic politics.

It is one thing to disagree with President Obama’s priorities and policies–quite another to suggest, as “commentators” on Fox News and others regularly do, that he is a Kenyan Muslim Socialist who wants to destroy the United States. It’s one thing to disagree with Senator Lugar, quite another to suggest that his ability to work with Democrats on national security issues makes him unfit to hold office. You may disagree with the Court’s analysis of the healthcare law (although very few people seem to know enough about the actual law to form a reasoned opinion), but to suggest that Chief Justice Roberts is a “traitor” or (more bizarrely) that his opinion was flawed because he takes epilepsy medication is to embrace paranoia.

We have reached such levels of derangement that we no longer believe anything we don’t want to believe–and thanks to technology, we can choose to inhabit media environments that reinforce our most unhinged conspiracy theories.

We don’t trust the “lame stream” media (or what is left of it). We don’t trust businesses or unions. We don’t trust the courts. We don’t trust the President, Congress or the Supreme Court. Increasingly, we don’t trust each other.

This is no way to run a country.

It won’t be easy, but rational people need to insist on measures that will make our governing institutions trustworthy again–beginning with more transparency and more control of money in politics. If we can restore a measure of basic trust in the good will of those we elect, perhaps we can begin to calm the crazy and actually talk to each other again.

Failing that, maybe Prozac in the water supply??

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Law and Order

Well, I certainly feel safer now that the Supreme Court has handed down its decision in Florence v. Burlington.

The issue in this case was whether jail officials have the right to strip-search anyone and everyone who is arrested, no matter what the charge and no matter the presence or lack of probable cause to believe the “strip-ee” possesses contraband or a weapon. The plaintiff in the case had been arrested for non-payment of a traffic ticket; it later turned out that he had paid his ticket, but due to a computer error, the payment wasn’t documented. (Governor Daniels can surely relate–those pesky computer errors have been cropping up with annoying frequency in his administration lately!)

According to the case syllabus,

“petitioner, like other arriving detainees, had to remove his clothing while an officer looked for body markings, wounds, and contraband; had an officer look at his ears, nose, mouth, hair, scalp, fingers, hands, arm- pits, and other body openings; had a mandatory shower; and had his clothes examined. Petitioner claims that he was also required to lift his genitals, turn around, and cough while squatting.”

The Court ruled 5-4 that authorities could lawfully require a person accused only of an unpaid traffic citation to submit to this process.

You can bet I won’t be jaywalking any time soon!

As Justice Breyer wrote in his dissent,

“In my view, such a search of an individual arrested for a minor offense that does not involve drugs or violence—say a traffic offense, a regulatory offense, an essentially civil matter, or any other such misdemeanor—is an “unreasonable search” forbidden by the Fourth Amendment, unless prison authorities have reasonable suspicion to believe that the individual possesses drugs or other contraband. And I dissent from the Court’s contrary determination.”

The majority placed a lot of emphasis on–and expressed sympathy for–the difficulties involved in running a penal institution. As a result, the Justices were unwilling to require those in charge to make initial distinctions–that is, to determine the presence or absence of probable cause sufficient to justify a bodily search of this magnitude.

But that is precisely what the 4th Amendment requires of government.

The prohibition against unreasonable searches doesn’t include a caveat for inconvenience or difficulty. And really, how threatening is a guy who’s been hauled in for an unpaid traffic ticket? If jail authorities can’t distinguish between an arrest for a traffic violation and one for theft or armed robbery, we have a lot bigger problem than strip searches.

A quick look at the breakdown of the Justices in the majority and minority certainly confirms the old saying that elections have consequences. We all need to “remember in November.”

And meanwhile, whatever you do, don’t cross against the light!

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