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History > 2012 > USA > Supreme Court (I)




Personal Guns

and the Second Amendment


December 17, 2012
The New York Times


When the Supreme Court struck down a ban on handguns by the District of Columbia in 2008, ruling that there is a constitutional right to keep a loaded handgun at home for self-defense, the decision was enormously controversial in the legal world. But the court’s conclusion has generally been accepted in the real world because the ruling was in tune with popular opinion — favoring Americans’ rights to own guns but also control of gun ownership.

The text of the Second Amendment creates no right to private possession of guns, but Justice Antonin Scalia found one in legal history for himself and the other four conservatives. He said the right is not outmoded even “in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem.”

It is not just liberals who have lambasted the ruling, but some prominent conservatives like Judge J. Harvie Wilkinson III of the United States Court of Appeals for the Fourth Circuit. The majority, he wrote, “read an ambiguous constitutional provision as creating a substantive right that the Court had never acknowledged in the more than two hundred years since the amendment’s enactment. The majority then used that same right to strike down a law passed by elected officials acting, rightly or wrongly, to preserve the safety of the citizenry.” He said the court undermined “conservative jurisprudence.”

In the real world, however, criticism has abated in part because the majority opinion was strikingly respectful of commonplace gun regulations. “Like most rights,” Justice Scalia said, “the right secured by the Second Amendment is not unlimited.”

And: “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. We also recognize another important limitation on the right to keep and carry arms” —“prohibiting the carrying of ‘dangerous and unusual weapons.’ ”

Justice Scalia does not say how federal courts should evaluate such regulations and the Supreme Court may need to return to this issue soon, to resolve a substantial disagreement that has arisen in federal appeals courts.

Does the court’s 4-year-old ruling imply “a right to carry a loaded gun outside the home”? That is what the Seventh Circuit appellate court concluded last week in striking down an Illinois law that prohibited most people from carrying a loaded weapon in public.

Or does the Supreme Court’s ruling on handguns support the view that public interest in safety outweighs an individual’s interest in self-defense because gun rights are more limited outside the home? That is what the Second Circuit found last month in upholding a New York State law limiting handgun possession in public to people who can show a threat to their own safety.

Where “gun violence is a serious problem,” as Justice Scalia said it is in the United States, the courts must be very cautious about extending the individual right to own a gun. The justice’s opinion made that clear.

Read related editorials on gun control: rethinking guns and legislation abroad.

    Personal Guns and the Second Amendment, NYT, 17.12.2012,






Standing and Delivering


December 12, 2012
9:00 pm
The New York Times


Is it heretical of me, or merely quirky, to find myself nearly as fascinated by the procedural game the Supreme Court is playing in the same-sex marriage cases as I am by the underlying merits of the two appeals the court has agreed to decide?

After all, same-sex marriage is legal in nine states and the District of Columbia, and public opinion on the issue is evolving rapidly in other parts of the country, with or without the blessing of the United States Supreme Court. On the other hand, the procedural minefield the court has laid around these cases may hold implications reaching well beyond the domain of gay rights -- for the relationship of states to their citizens and for the balance of power between the president and Congress.

I say "may": the court, never exactly a model of transparency, was more than usually opaque in the orders it issued last Friday afternoon.

In accepting Hollingsworth v. Perry, the case on the constitutionality of California's Proposition 8, prohibiting same-sex marriage, the justices instructed the parties to brief and argue the preliminary question "whether petitioners have standing under Article III, Section 2 of the Constitution in this case."

And in United States v. Windsor, the challenge to the Defense of Marriage Act, which bars federal recognition of same-sex marriages that are valid under state law, the court posed these additional questions:

"Whether the executive branch's agreement with the court below that DOMA is unconstitutional deprives this court of jurisdiction to decide this case" and "whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case."

To start with what's clear about these questions: Article III, Section 2 is the constitutional provision that establishes the jurisdiction of the federal courts. From its earliest days, the Supreme Court has interpreted Article III as limiting federal jurisdiction to concrete cases, ongoing disputes between parties with an actual stake in the outcome. The court does not issue advisory opinions, as the justices informed President George Washington, whose secretary of state, Thomas Jefferson, had requested one on the president's behalf.

The Constitution doesn't use the word "standing," but the concept plays a crucial role in the determination of Article III jurisdiction. In order to have standing to proceed in federal court, a plaintiff must have suffered actual harm rather than have a generalized grievance; the harm must have been caused by something the defendant did; and the problem can actually be addressed by the decision that the plaintiff seeks. (These requirements are usually referred to as injury-in-fact, causation and redressability.)

The standing doctrine has for years been a major site of contestation between liberal and conservative judges, between those whose priority is maintaining access to court to the greatest degree possible and those who believe that the constitutional separation of powers makes the courts ill-suited to resolve many of the problems that people try to bring to them. Chief Justice John G. Roberts Jr. and the court's other conservatives are decidedly in the latter camp, while the more liberal justices are somewhat less decidedly in the former. The chief justice has long made it clear that he cares a lot about keeping a tight lid on standing.

Standing has been an issue in the Proposition 8 case ever since the state of California decided not to appeal Federal District Judge Vaughn Walker's 2010 ruling that the proposition was unconstitutional. The appeal to the United States Court of Appeals for the Ninth Circuit was carried on by a group of people who had worked to get the proposition adopted. The Ninth Circuit questioned whether this group had the requisite Article III standing, and asked the California Supreme Court to tell it whether under California law, a ballot measure's proponents are regarded as properly standing in the state's shoes if the state decides not to defend the measure. When the state court answered yes, the Ninth Circuit took the answer as sufficient and proceeded to decide the appeal, finding Proposition 8 unconstitutional.

Whether standing under state law translates into standing for the purposes of Article III is a question that the United States Supreme Court has poked at but never resolved. Whether this is the right case in which to do so remains to be seen, but it was not particularly surprising for the court to raise the issue. In fact, in an era of direct democracy run amok, with voters being presented with extreme propositions that no rational state government would wish to embrace, a Supreme Court decision on who can carry the ball into federal court is probably overdue.

The justices' order in the DOMA case is a different matter. Here, the court's concern seems to be with the fact that the Obama administration dropped its defense of the Defense of Marriage Act in February 2011, when the Windsor case was pending before the United States Court of Appeals for the Second Circuit. The administration announced that while it would continue to apply DOMA, under the president's constitutional duty to enforce laws, it now believed that statutes discriminating on the basis of sexual orientation had to meet a heightened standard of judicial scrutiny, a test that it concluded DOMA would fail.

As required by law, Attorney General Eric H. Holder Jr. notified Congress of the administration's decision to stop defending DOMA in court. "Our attorneys will also notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases," Attorney General Holder said in his letter to Representative John A. Boehner, the House speaker. Democrats in Congress wanted no part of defending DOMA, even though the statute had passed both houses in 1996 by big bipartisan majorities and was signed into law by President Bill Clinton. So a five-member House leadership body called the Bipartisan Legal Advisory Group decided, over the objections of its two Democratic members, to take over the executive branch's abandoned defense of DOMA. The Republican members of the group, bipartisan in name but not in fact, hired Paul D. Clement, solicitor general in the administration of President George W. Bush, to handle their DOMA defense.

The executive branch's abandonment of a legal position is not an everyday affair, but it's hardly rare. Just recently, Solicitor General Donald B. Verrilli Jr. notified the Supreme Court that the government no longer believed it was on the right side of a case on immunity for federal prison guards accused of assaulting an inmate. The government's immunity position had prevailed in the United States Court of Appeals for the Third Circuit, and the Supreme Court had agreed in September to hear the inmate's appeal, Millbrook v. United States. Now, Mr. Verrilli told the court last month, the government was prepared to argue that the Third Circuit's decision was wrong and should be overturned. Taking that development in stride, the justices are keeping the case on the calendar and last week appointed a private lawyer, Jeffrey S. Bucholtz, to argue the government's abandoned position.

Paul Clement himself, as solicitor general, informed Congress in 2004 that the government would not defend the constitutionality of a law requiring public mass transit agencies, as a condition of receiving federal money, to refuse to accept advertisements urging the legalization of marijuana. A Federal District Court had held that the ban amounted to viewpoint discrimination, prohibited by the First Amendment, a decision that Mr. Clement characterized as correct in his letter to the Senate legal counsel. "The government does not have a viable argument to advance in the statute's defense and will not appeal the district court's decision," he wrote. While that case never reached the Supreme Court, it's one example among many to show how often these issues arise.

That makes all the more puzzling the court's concern about whether it has jurisdiction in the DOMA case. While the government and the plaintiff, Edie Windsor, may agree about the law's unconstitutionality, they maintain opposite positions on whether Ms. Windsor owes more than $300,000 in federal estate tax on the property left to her by the woman to whom she was legally married in the eyes of New York State. Had she been married to a man, she would have inherited the property tax-free. With DOMA barring the federal government from recognizing same-sex marriage, and the Obama administration taking the position that it will enforce the law until the Supreme Court or Congress tell it otherwise, there certainly seems to be a controversy between the parties sufficient to meet the test of Article III jurisdiction.

The standing of the House Republicans to carry on the litigation seems a closer question. This so-called bipartisan group doesn't even speak for the House of Representatives, let alone Congress. While the group has filed friend-of-the-court briefs on behalf of Congress in several cases since its creation 20 years ago, its authority to stand in the executive branch's shoes as a party to a case is indistinct, to say the least. The court on Tuesday appointed Vicki C. Jackson, a Harvard law professor and an expert on federal jurisdiction, to argue the positions that neither side in the Windsor case is taking: that the court has no jurisdiction and that the House group has no standing. Her participation promises to turn this already intriguing case into a real - to borrow a phrase - intellectual feast.

If the justices find that the House group lacks standing, that would be enough to make the court dismiss the case - a victory for Ms. Windsor, since she won in both lower courts. Given the sketchiness of the group's claim to standing, the question remains why the court is turning cartwheels to get at the underlying question of jurisdiction, of whether the administration's agreement with the appeals court that the law is unconstitutional means that the Supreme Court has no power to decide the case.

My initial thought was that in granting the case, the court was giving itself a way out in the event that it got into too much of a wrangle on the merits. Under this scenario, the justices would be using the jurisdictional issue as a kind of safety valve for a deeply polarized court. But on reflection, that theory doesn't really make sense, because a finding of no jurisdiction under these circumstances would call into question the court's ability to deal with other instances of changed government positions, and would be inconsistent with the action the court took just last week in the prison immunity case. Further, a finding of no jurisdiction would amount to a huge grant of power to the executive branch at the expense of Congress, enabling the president to cut off further judicial review any time a law that he never liked in the first place is declared unconstitutional by a lower court. While executive power certainly has its fans on the court, including Chief Justice Roberts and Justice Antonin Scalia, I'd be surprised if that sweeping proposition could capture five votes.

So here's another theory about what's going on at the court, and I emphasize that it's just a theory. I suspect there is a profound battle over the meaning of Article III jurisdiction, an issue proving so divisive that the justices haven't yet permitted it to fully surface. There was a hint of this last term, in a decision that never saw the light of day. The case was First American Financial v. Edwards, challenging a provision of an obscure federal law, the Real Estate Settlement Procedures Act (RESPA), under which home buyers defrauded by title companies can sue for damages without needing to show that they suffered an actual financial injury. While Congress indisputably conferred on these consumers the right to sue, the question was whether it was a grant of standing that met the requirements of Article III.
The case was argued in December of last year, and Chief Justice Roberts assigned the opinion to Justice Clarence Thomas. That was not apparent at the time to the world outside the court, but it became apparent as the term went on without a decision and it was clear that Justice Thomas was the only member of the court who had not produced an opinion from the December argument sitting. By late spring, with the health care case pending, it was easy to forget about First American Financial. On June 28, the last day of the term, health care decision day, the court announced that it was dismissing the case as "improvidently granted."

What was the story behind this baffling "never mind"? All I'm sure of is that there is one. My guess is that Justice Thomas had drafted and circulated an opinion, grounded in an extremely narrow reading of Article III jurisdiction, that was so sweeping as to disable Congress from passing laws that along with granting statutory rights also give people access to court to vindicate those rights. I suspect it was an opinion so radical in its implications - a kind of jurisdictional nuclear option -- that Justice Thomas was unable to hold a majority, and that the court remained so divided in the aftermath that no one else could put together a majority as the term's clock ran out.

If I'm right, the First American debacle resolved nothing beyond pushing off to another day, another case, the battle over the dimensions of federal jurisdiction. Granted, this was not everyone's first thought upon hearing that the Supreme Court would rule on a Defense of Marriage Act case. It wasn't mine, either. But as I said at the beginning of this column, it's fascinating.

    Standing and Delivering, NYT, 12.12.2012,






Next Civil Rights Landmark


December 7, 2012
The New York Times


Fifty-eight years after it banned discrimination in public education, the Supreme Court has set the stage for the defining civil rights decision of this era — agreeing to hear two cases challenging laws that define marriage to exclude couples of the same sex. To us, and a growing number of Americans, the right course seems clear: that the justices continue the march toward real equality.

In one of the cases, the justices will review a ruling earlier this year by the United States Court of Appeals for the Ninth Circuit, in San Francisco, which struck down California’s voter-approved ban on same-sex marriage.

The Supreme Court could leave California’s same-sex marriage ban in place, planting the court on the wrong side of justice and equality. Or, in the absence of a five-vote majority to establish a nationwide constitutional right to same-sex marriage, the Supreme Court could affirm the narrower approach of the Ninth Circuit panel, which was confined to California.

The appellate panel reasoned that Proposition 8, as the voter initiative was known, was unconstitutional because it stripped gays, lesbians and bisexuals of the right to marry declared by the State Supreme Court. Thus it harmed “the status and dignity of the members of a disfavored class.”

The second case the Supreme Court will hear is a challenge to Section 3 of the Defense of Marriage Act, the odious 1996 law that denies federal benefits to lawfully married same-sex couples. The case concerns Edith Windsor and Thea Clara Spyer of New York, who were married in 2007 in Canada.

Because the Defense of Marriage Act did not allow the Internal Revenue Service to treat Ms. Windsor as a surviving spouse when Ms. Spyer died in 2009, she was required to pay some $360,000 in federal estate taxes from which opposite-sex spouses are exempt. The United States Court of Appeals for the Second Circuit, in Manhattan, sensibly said that violated the Constitution’s promise of equal protection. The ruling against the Defense of Marriage Act, the second by a federal appeals court, said laws treating same-sex couples differently deserve heightened judicial scrutiny, like other laws that single out minorities long subjected to discrimination.

These profound legal tests have reached the nation’s highest court at a remarkable moment. There has been a string of persuasive lower federal court rulings against the Defense of Marriage Act and the denial of gay people’s freedom to marry.

A month ago, voters in Maine, Maryland and Washington State became the first to approve same-sex marriage at the ballot box rather than through courts or legislatures. Voters in Minnesota rejected a ballot measure that would have enshrined the state’s ban on same-sex marriage in the State Constitution.

Public opinion is shifting on this issue as more people recognize the inherent wrong in a last bastion of official discrimination. The most important hearts and minds to be won at this point belong to the nine justices.

    Next Civil Rights Landmark, NYT, 7.12.2012,






Supreme Court Will Take Up Two Cases on Gay Marriage


December 7, 2012
The New York Times


WASHINGTON — The Supreme Court announced on Friday that it would enter the national debate over same-sex marriage, agreeing to hear a pair of cases challenging state and federal laws that define marriage to include only unions of a man and a woman.

One of the cases, from California, could establish or reject a constitutional right to same-sex marriage. The justices could also rule on narrower grounds that would apply only to marriages in California.

The second case, from New York, challenges a federal law that requires the federal government to deny benefits to gay and lesbian couples married in states that allow such unions.

The court’s move comes against the backdrop of a rapid shift in public attitudes about same-sex marriage, with recent polls indicating that a majority of Americans support allowing such unions. After the elections last month, the number of states authorizing same-sex marriage increased by half, to nine.

The court’s docket is now crowded with cases about the meaning of equality, with the new cases joining ones on affirmative action in higher education and on the future of the Voting Rights Act of 1965. Decisions in all of the cases are expected by June.

The new California case, Hollingsworth v. Perry, No. 12-144, was filed in 2009 by Theodore B. Olson and David Boies, two lawyers who were on opposite sides in the Supreme Court’s decision in Bush v. Gore, which settled the 2000 presidential election. The suit argued that California voters had violated the federal Constitution the previous year when they overrode a decision of the state’s Supreme Court allowing same-sex marriages.

A federal judge in San Francisco agreed, issuing a broad decision that said the Constitution required the state to allow same-sex couples to marry. The decision has been stayed.

A divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, also in San Francisco, affirmed the decision. But the majority relied on narrower grounds that seemed calculated to avoid Supreme Court review or, at least, attract the vote of the presumed swing member of that court, Justice Anthony M. Kennedy.

Judge Stephen R. Reinhardt, writing for the majority, relied heavily on a 1996 majority opinion from Justice Kennedy in Romer v. Evans, which struck down a Colorado constitutional amendment that had banned the passage of laws protecting gay men and lesbians. The voter initiative in California, known as Proposition 8, had done something similar, Judge Reinhardt wrote.

That reasoning, he added, meant that the ruling was confined to California.

“We do not doubt the importance of the more general questions presented to us concerning the rights of same-sex couples to marry, nor do we doubt that these questions will likely be resolved in other states, and for the nation as a whole, by other courts,” he wrote.

“For now,” he said, “it suffices to conclude that the people of California may not, consistent with the federal Constitution, add to their state Constitution a provision that has no more practical effect than to strip gays and lesbians of their right to use the official designation that the state and society give to committed relationships, thereby adversely affecting the status and dignity of the members of a disfavored class.”

The Supreme Court has several options in reviewing the decision. It could reverse it, leaving California’s ban on same-sex marriage in place. It could affirm it on the narrower theory, which would allow same-sex marriage in California but not require it elsewhere. Or it could address the broader question of whether the Constitution requires states to allow such marriages.

A plaintiff in the case, Kristin M. Perry, said she hoped that the justices would answer yes to that last question. “There is nothing more important,” she said, “than a state ridding itself of discriminatory laws that hurt its citizens every day.”

Brian S. Brown, the president of the National Organization for Marriage, said the court should address the broader question but say no. “What’s at stake,” he said, “is whether the Constitution demands a redefinition of marriage and whether states can even vote on this issue.”

The second case the court agreed to hear, United States v. Windsor, No. 12-307, challenges a part of the Defense of Marriage Act of 1996. Section 3 of the law defines marriage as between only a man and a woman for the purposes of more than 1,000 federal laws and programs. (Another part of the law, not before the court, says that states need not recognize same-sex marriages from other states.)

The case concerns two New York City women, Edith Windsor and Thea Clara Spyer, who married in 2007 in Canada. Ms. Spyer died in 2009, and Ms. Windsor inherited her property. The 1996 law did not allow the Internal Revenue Service to treat Ms. Windsor as a surviving spouse, and she faced a tax bill of about $360,000 that a spouse in an opposite-sex marriage would not have had to pay.

Ms. Windsor sued, and in October the United States Court of Appeals for the Second Circuit, in New York, struck down the 1996 law. The decision was the second from a federal appeals court to do so, joining one in May from a court in Boston. The Windsor case made its way to the Supreme Court unusually quickly because the parties had filed an appeal from the trial court’s decision in the case, which also struck down the law, even before the appeals court had ruled.

Ms. Windsor, 83, said she was “absolutely thrilled” that the court had agreed to hear her case, adding, “I wish Thea was here to see what is going on.”

There was reason to think that Justice Elena Kagan was not free to hear an appeal from the Boston case because she had worked on it or a related case as United States solicitor general. The current solicitor general, Donald B. Verrilli Jr., gave the court a number of other options, including Windsor, probably partly to make sure that a case of such importance could be heard by a full nine-member court.

The Obama administration’s attitude toward same-sex marriage and the 1996 law has shifted over time. Until last year, the Justice Department defended the law in court, as it typically does for all acts of Congress. In February 2011, though, Attorney General Eric H. Holder Jr. announced that he and President Obama had concluded that the law was unconstitutional and unworthy of defense in court, though he added that the administration would continue to enforce the law.

In May of this year, Mr. Obama announced his support for same-sex marriage.

After the Justice Department stepped aside, House Republicans intervened to defend the law. They are represented by Paul D. Clement, a solicitor general in the Bush administration.

The Windsor case is thus likely to feature a rematch between Mr. Clement and Mr. Verrilli, who were antagonists this year in the arguments over Mr. Obama’s health care law. The two cases are likely to be argued in late March, about a year after the health care case was heard.

    Supreme Court Will Take Up Two Cases on Gay Marriage, NYT, 7.12.2012,






Surveillance and Accountability


October 28, 2012
The New York Times

Nearly seven years after the disclosure of President George W. Bush’s secret program of spying on Americans without a warrant, the Supreme Court is about to hear arguments on whether judges can even consider the constitutionality of doing this kind of dragnet surveillance without adequate rules to protect people’s rights.

President Obama’s solicitor general, Donald Verrilli Jr., will be calling on the court to toss out the case based on a particularly cynical Catch-22: Because the wiretaps are secret and no one can say for certain that their calls have been or will be monitored, no one has standing to bring suit over the surveillance. The United States Court of Appeals for the Second Circuit rejected that avoidance of accountability, and so should the Supreme Court.

The lawsuit the Justice Department is trying so hard to block concerns the 2008 statute amending the Foreign Intelligence Surveillance Act. The new law retroactively approved Mr. Bush’s legally dubious warrantless wiretapping and conferred immunity from prosecution on the telephone companies that cooperated in the program.

The measure gave the government broad and unprecedented power to intercept the communications of Americans without individualized warrants based on probable cause or any administrative finding of a terrorism connection. It lowered the burden of proof for government wiretapping of suspects, weakened judicial supervision, and failed to set adequate limits on retention and dissemination of acquired information. The statute discarded traditional constitutional protections for the privacy of innocent people, and chilled the exercise of the core democratic rights of free speech and association.

It would not require a legal stretch for the court to find that the plaintiffs had standing to sue. The plaintiffs are lawyers and human rights, labor, legal and media organizations engaged in work that requires them to be in communication with colleagues, clients, journalistic sources, victims of human rights abuses and others outside the United States. They have a reasonable fear of government monitoring of sensitive conversations, based on the law’s vacuum-cleaner approach to surveillance and the identities and locations of their contacts.

They have taken expensive and burdensome steps to avoid the risk of government eavesdropping, demonstrating tangible injury. For lawyers, an ethical obligation to safeguard client confidences requires such protective actions. Under existing Supreme Court doctrine, plaintiffs who have been harmed by government conduct are allowed to bring suit, even if, as here, they may not be direct targets. As the Supreme Court recognized in an important 1972 case, the invoking of national security to justify warrantless surveillance only heightens the need for searching judicial review.

Technically, the only question before the court is the fairly narrow-sounding issue of standing that it has agreed to hear. But should the court acquiesce to the government’s cramped reading of standing, the larger implications should be clear to everyone. As a practical matter, it would foreclose any meaningful judicial review of the warrantless wiretapping statute, perhaps permanently. The damage to the nation’s system of checks and balances, which relies on independent court scrutiny of laws as a safeguard against legislative and executive branch overreaching that disrespects constitutional rights, would be serious.

    Surveillance and Accountability, NYT, 28.10.2012,






A Schizophrenic on Death Row


October 17, 2012
The New York Times


The Florida Supreme Court decided on Wednesday that the state can proceed with the execution next week of a 64-year-old inmate named John Ferguson. His lawyers immediately said that they will ask the United States Supreme Court to stay the execution and to review the case on grounds that Mr. Ferguson is mentally incompetent and that executing him would violate his constitutional rights as defined by the court in two earlier decisions.

The court must review the case. At issue are not only Mr. Ferguson’s life but also two differing interpretations of what constitutes competence: one Florida’s, the other the Supreme Court’s.

Mr. Ferguson believes that he is the Prince of God and that he is facing execution not for murders he committed but because of a conspiracy against him for being the prince. He believes that he cannot be killed and that he has “inner ears” so he can hear God whisper instructions. All of this is consistent with his being a paranoid schizophrenic, as he was diagnosed 40 years ago and many times since, including earlier this month.

The Supreme Court ruled in 1986 that it is unconstitutional to execute someone who lacks the “ability to comprehend the nature of the penalty.” In 2007, the court clarified that a “prisoner’s awareness of the state’s rationale for an execution is not the same as a rational understanding of it” and that evidence of psychological dysfunction may result in a “fundamental failure to appreciate the connection” between his crimes and his execution.

Yet this is not the way Florida sees it. Florida law requires only “awareness” — that Mr. Ferguson knows he committed murders and is set to be executed. On that basis, a trial judge ruled last Friday that Mr. Ferguson was competent and could be executed, and the Florida Supreme Court upheld that view, saying no “stricter standard” of competence is required.

Florida’s “awareness” test is plainly inadequate, because it assumes Mr. Ferguson has the kind of understanding of his situation that his delusions make impossible. Mistaken findings of competence like this have allowed states to execute scores of people with severe mental illnesses, including schizophrenia.

Beyond that, the Supreme Court’s 2007 ruling is the law of the land and should be applicable to Florida. The court now has a solemn obligation to explain why Florida’s standard clearly violates the Constitution and to block this execution.

    A Schizophrenic on Death Row, NYT, 18.10.2012,






Race-Conscious Admissions in Texas


October 10, 2012
The New York Times


Affirmative action provokes conflicting views about what equal protection means under the law. Does the Constitution permit race-conscious programs that provide minorities with opportunities, even though it prohibits programs that exclude minorities because of their race?

For more than three decades, the Supreme Court has said yes — that the Constitution allows academic programs to consider race as one factor in admissions, provided the program meets certain hurdles: it must serve a compelling state interest and be as limited as possible.

Affirmative action is largely a voluntary commitment by leading institutions that are convinced it is in their self-interest to enlarge opportunities for historically disfavored groups, because it helps fulfill their missions. It would be a travesty for the court’s conservatives to reverse or weaken longstanding legal precedent on this issue. The harm they would inflict in doing so would be felt in education, business, national defense and many areas of American life.

The justices — for no compelling reason — chose to reconsider affirmative action principles in Fisher v. the University of Texas at Austin, argued before the court on Wednesday. They focused on two central questions: how the university uses race in admissions and whether the university’s goal of achieving a “critical mass” of minority students is sufficiently limited and defined to pass constitutional muster.

The university admits about 80 percent of its students by automatically taking the top 10 percent of students from every high school in the state. The rest are admitted by individual assessments, taking account of grades, activities and many other factors, including race. Texas maintains that its aim is to have a sufficient amount of racial diversity on campus to enrich the education for all students. And, to reach that goal, it was necessary to consider race as one factor to help increase minority enrollees by a modest number.

A lawyer for the plaintiff, Abigail Fisher, argued that the university cannot define what it means by “critical mass” without setting a target for the number of minority students. But that would be the equivalent of creating a quota, which the court has said is unconstitutional.

The conservative justices expressed suspicion that what Texas is doing with its admissions is somehow illegitimate. But it is using an approach approved in a 2003 Supreme Court case, Grutter v. Bollinger, that explicitly allowed race to be considered as long as it was not the determining factor.

As the Grutter case noted, universities occupy a “special niche” in America’s “constitutional tradition,” and should be given considerable freedom to make judgments about what education entails — and that includes making admissions decisions in putting together a class of students who can learn from each other.

The Roberts court’s suspicion should come as no surprise, though. Since the Grutter decision, Chief Justice John Roberts Jr. and Justice Samuel Alito Jr., both vehement critics of race-conscious programs, have joined the court. Justice Alito replaced Justice Sandra Day O’Connor, who wrote the Grutter opinion. Justice Anthony Kennedy, who opposed the Grutter ruling, is likely to be the decisive vote in this case (Justice Elena Kagan is recused, presumably because of her involvement as solicitor general). He seemed eager to get the university’s counsel to say its admission program does treat race as determinative, though it does not: “So what you’re saying is that what counts is race above all.”

The court has received many briefs from former military leaders, major corporations and colleges and universities, all beseeching it not to limit them in using race-conscious policies as a means to increase diversity in their institutions. If Justice Kennedy joins in rejecting the Grutter principles in this case, the court will turn back the clock on improvements that took a generation to achieve.

    Race-Conscious Admissions in Texas, NYT,10.10.2012,






October Term, 2012


September 29, 2012
The New York Times


On Monday, the Supreme Court opens a new term with a menu of important cases that deal with affirmative action, criminal justice, the right of defendants to effective counsel and more. The court may soon choose to hear a controversial case that could redefine voting-rights law, and, later in the term, one or more cases involving same-sex marriage.

AFFIRMATIVE ACTION In Fisher v. University of Texas at Austin, the court will address how and perhaps whether the university can take race into account as a factor in student admissions. In a way, the case is a rehearing of a 2003 case in which it ruled that the University of Michigan Law School could do so as part of assessing the whole of a candidate’s application. That decision seemed to reflect a national consensus that race, narrowly applied, could be used to ensure a diverse student body. The question now is whether the court will uphold that consensus — as we hope — or will further limit affirmative action.

UNREASONABLE SEARCHES Two important cases involve the Fourth Amendment prohibition against unreasonable searches and seizures. In Florida v. Jardines, the issue is whether the police violated the Constitution by using a dog trained to smell for drugs to sniff at the door of a house where they suspected marijuana was being grown. Was the sniff test unreasonably intrusive because there was no hard information that illegal activity was probably occurring, as the Florida Supreme Court properly found, or was it not a search because it occurred outside the house?

Similarly, in Missouri v. McNeely, the issue is whether the police could order a blood test on a man suspected of drunken driving without obtaining a warrant because the delay in doing so would result in loss of evidence. The Missouri Supreme Court sensibly ruled otherwise: that the test constituted an unreasonable search because there was no accident to investigate and because there was plenty of time to get a warrant and test the driver’s blood before the alcohol in it dissipated.

RIGHT TO COUNSEL Two cases involve the right of defendants to have effective counsel. Ryan v. Gonzales raises the question of whether the defendant himself needs to be mentally capable of assisting his own attorney in challenging a death penalty conviction. The answer, in our view, is yes. Chaidez v. United States asks whether a 2010 ruling of the court — that criminal defense lawyers must advise their noncitizen clients that a guilty plea carries the risk of deportation — applies to someone whose conviction became final before that ruling was announced. Again, the answer is yes.

The court has not yet considered whether to take a highly contested case about the Voting Rights Act, but it may. A section of the act requires states and other jurisdictions with a history of racial discrimination to obtain clearance from the Justice Department or a court before changing voting procedures. Chief Justice John Roberts Jr. has already expressed his distaste for this provision. That provision is an essential safeguard against unfair voting procedures and enforces the core purpose of the 15th Amendment, and should be upheld.

The justices may also decide to review a ruling by the United States Court of Appeals for the First Circuit striking down the Defense of Marriage Act, on grounds it discriminates against married same-sex couples in denying them the same benefits as heterosexual couples. Justice Ruth Bader Ginsburg has said that the court will most likely consider the law “toward the end of the current term.”

On Monday, a major case about corporate accountability for extreme violations of human rights, Kiobel v. Royal Dutch Petroleum, is scheduled to be reargued. The case is an unusual reconsideration of one heard on much narrower grounds but not decided last term.

The question here is whether the court will build on case law developed since 1980, and allow lawsuits in federal courts against foreign corporations that have dealings in this country for violations of international law committed abroad. Or will it say American law cannot decide cases brought by foreigners in disputes occurring outside the United States? We think that case law should be sustained and that American courts should remain open to remedy major human rights abuses abroad.

The conservatives, including Mr. Roberts, have regularly, if narrowly, held sway in recent years. Where they come down on this important question of corporate accountability will say something significant about their respect for established international and American law — or their inclination to shape law as they see fit.

    October Term, 2012, NYT, 29.9.2012,






Supreme Court Faces Weighty Cases and a New Dynamic


September 29, 2012
The New York Times


WASHINGTON — The Supreme Court returns to the bench on Monday to confront not only a docket studded with momentous issues but also a new dynamic among the justices.

The coming term will probably include major decisions on affirmative action in higher education admissions, same-sex marriage and a challenge to the heart of the Voting Rights Act of 1965. Those rulings could easily rival the last term’s as the most consequential in recent memory.

The theme this term is the nature of equality, and it will play out over issues that have bedeviled the nation for decades. “Last term will be remembered for one case,” said Kannon K. Shanmugam, a lawyer with Williams & Connolly. “This term will be remembered for several.”

The term will also provide signals about the repercussions of Chief Justice John G. Roberts Jr.’s surprise decision in June to join the court’s four more liberal members and supply the decisive fifth vote in the landmark decision to uphold President Obama’s health care law. Every decision of the new term will be scrutinized for signs of whether Chief Justice Roberts, who had been a reliable member of the court’s conservative wing, has moved toward the ideological center of the court.

“The salient question is: Is it a little bit, or is it a lot?” said Paul D. Clement, a lawyer for the 26 states on the losing side of the core of the health care decision.

The term could clarify whether the health care ruling will come to be seen as the case that helped Chief Justice Roberts protect the authority of his court against charges of partisanship while accruing a mountain of political capital in the process. He and his fellow conservative justices might then run the table on the causes that engage him more than the limits of federal power ever have: cutting back on racial preferences, on campaign finance restrictions and on procedural protections for people accused of crimes.

It is also possible that the chief justice will become yet another disappointment to conservatives, who are used to them from the Supreme Court, and that he will join Justice Anthony M. Kennedy as a swing vote at the court’s center. There is already some early evidence of this trend: in each of the last three terms, only Chief Justice Roberts and Justice Kennedy were in the majority more than 90 percent of the time.

“We all start with the conventional wisdom that Justice Kennedy is going to decide the close cases,” said Mr. Clement, who served as United States solicitor general under President George W. Bush. “We’ve all been reminded that that’s not always the case.”

The texture of the new term will be different, as the court’s attention shifts from federalism and the economy to questions involving race and sexual orientation. The new issues before the court are concrete and consequential: Who gets to go to college? To get married? To vote?

On Oct. 10, the court will hear Fisher v. University of Texas, No. 11-345, a major challenge to affirmative action in higher education. The case was brought by Abigail Fisher, a white woman who says she was denied admission to the University of Texas based on her race. The university selects part of its class by taking race into account, as one factor among many, in an effort to ensure educational diversity.

Just nine years ago, the Supreme Court endorsed that approach in a 5-to-4 vote. The majority opinion in the case, Grutter v. Bollinger, was written by Justice Sandra Day O’Connor, who said she expected it to last for a quarter of a century.

But Justice O’Connor retired in 2006. She was succeeded by Justice Samuel A. Alito Jr., who was appointed by Mr. Bush and who has consistently voted to limit race-conscious decision making by the government. Chief Justice Roberts, another Bush appointee, has made no secret of his distaste for what he has called “a sordid business, this divvying us up by race.”

Justices Kennedy, Antonin Scalia and Clarence Thomas all dissented in the Grutter case, and simple math suggests that there may now be five votes to limit or overturn it.

The reach of such a decision could be limited by the idiosyncrasies of the admissions system in Texas. The university provides automatic admission to students in Texas who graduate in roughly the top 10 percent of their high school classes. That approach generates substantial diversity, partly because many Texas high schools remain racially homogeneous.

Ms. Fisher narrowly missed the cutoff at a high school whose students have above-average test scores for the state. She was rejected for one of the remaining spots under the part of the admissions program that considers applicants’ race.

The court may uphold the Texas system under Grutter, or it may rule against it on narrow grounds by saying, for instance, that race-conscious admissions are forbidden where a race-neutral method — like the 10 percent program — can be said to be working.

But the court may also follow the health care ruling with a second landmark decision, this one barring racial preferences in admissions decisions altogether. Given persistent achievement gaps, even after controlling for family income, such a ruling would make the student bodies of many colleges less black and Hispanic and more white and Asian.

The court will probably also take on same-sex marriage. “I think it’s most likely that we will have that issue before the court toward the end of the current term,” Justice Ruth Bader Ginsburg said at the University of Colorado on Sept. 19.

She was referring to challenges to an aspect of the federal Defense of Marriage Act, which bars the federal government from providing benefits to same-sex couples married in states that allow such unions. The federal appeals court in Boston struck down that part of the law, and both sides have urged the court to hear the case. More than 1,000 federal laws deny tax breaks, medical coverage and burial services, among other benefits, to spouses in same-sex marriages.

The justices will also soon decide whether to hear a more ambitious marriage case filed in California by Theodore B. Olson and David Boies. It seeks to establish a federal constitutional right to same-sex marriage.

Chief Justice Roberts has not yet voted in a major gay rights case. Justice Kennedy wrote the majority opinions in both Lawrence v. Texas, a 2003 decision that struck down a Texas law making gay sex a crime, and Romer v. Evans, a 1996 decision that struck down a Colorado constitutional amendment that banned the passage of laws protecting gay men and lesbians. Most observers see him as the decisive vote in same-sex marriage cases.

The justices are also quite likely to take another look at the constitutionality of a signature legacy of the civil rights era, the Voting Rights Act of 1965. In 2009, the court signaled that it had reservations about the part of the law that requires the federal review of changes in election procedures in parts of the country with a history of discrimination, mostly the South.

“We are now a very different nation” than the one that first enacted the Voting Rights Act, Chief Justice Roberts wrote for himself and seven other justices. “Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today.”

The chief justice seemed to invite Congress to revise the law, but lawmakers have taken no action.

Challenges to the law have arisen in several lawsuits in the current election season, including ones concerning redistricting and voter identification requirements.

“It will be interesting to see if the justices worry half as much about the emerging restrictions on voting as they worried about restrictions on political spending,” said Pamela S. Karlan, a law professor at Stanford.

On Monday, the new term will start with a case of great interest to business groups, Kiobel v. Royal Dutch Petroleum, No. 10-1491. The case was brought by 12 Nigerian plaintiffs who said the defendants, foreign oil companies, had been complicit in human rights violations committed against them by the Abacha dictatorship in Nigeria. The question in the case is whether American courts have jurisdiction over such suits, and business groups are hoping the answer is no.

In the last term, business groups achieved a series of victories, often by lopsided majorities. In cases with an individual on one side and business interests on the other, the court ruled for the business side 12 out of 14 times, according to calculations by Lauren R. Goldman, a lawyer with the firm Mayer Brown. In the two previous terms, the number of business cases was comparable, but individuals won at least half of the time.

Introducing himself to the nation at his confirmation hearings in 2005, Chief Justice Roberts said that “judges are like umpires” in that they do not make the rules but merely apply them.

“Nobody ever went to a ballgame to see the umpire,” he said.

But the calls Chief Justice Roberts made in the health care case were surprising enough that it will be hard to look away. He voted with the court’s conservatives to say that the law was not authorized by Congress’s power to regulate interstate commerce and then joined the court’s liberals to say it was authorized by Congress’s power to levy taxes. No other justice joined every part of his controlling opinion.

Charles Fried, who served as solicitor general in the Reagan administration and filed a brief in support of the law, said the reasoning in the health care decision was mystifying enough to foreclose predictions about the future of the Roberts court.

“This is a court that under Chief Justice Roberts called a ball a strike, a strike a ball, but got the batter to base where he belonged,” said Professor Fried, who teaches at Harvard Law School. “So who knows what to expect.”

    Supreme Court Faces Weighty Cases and a New Dynamic, NYT, 29.9.2012,






Citizens United


June 25, 2012
The New York Times


The Supreme Court examined the Arizona immigration law in minute detail, but when it came to revisiting the damage caused by its own handiwork in the 2010 Citizens United case, it couldn’t be bothered. In a single dismissive paragraph on Monday, the court’s conservative majority refused to allow Montana or any other state to impose limits on corporate election spending and wouldn’t even entertain arguments on the subject.

It is not as if those five justices could be unaware of the effects of Citizens United, and of the various court and administrative decisions that followed it. They could hardly have missed the $300 million in outside spending that deluged the 2010 Congressional elections or the reports showing that more than $1 billion will be spent by outside groups on Republican candidates this year, overwhelming the competition.

They might also have seen that many of the biggest donations are secret, given to tax-free advocacy groups in defiance even of the admonition in Citizens United that independent contributions should be disclosed.

If the justices were at all concerned about these developments, they could have used the Montana case to revisit their decision and rein in its disastrous effects. The only conclusion is that they are quite content with the way things worked out.

The court’s five conservative justices struck down a Montana law that prohibited corporate spending in elections — a law passed in 1912 not out of some theoretical concern about money corrupting elections but to put an end to actual influence-buying by copper barons.

State officials told the court that fighting corruption required them to maintain limits on corporate election spending. A series of friend-of-the-court briefs urged the justices to allow other states to impose similar laws, citing the out-of-control spending unleashed since 2010.

Those pleas were summarily rejected by the court’s majority, which refused to hear arguments on the issue. “There can be no serious doubt” that Citizens United applies to Montana, the court said.

That’s true, in the literal sense that Supreme Court decisions apply to the states. But the frustration of the dissenters, led by Justice Stephen Breyer, was clear. He said grave doubt had been cast on the majority’s belief, expressed in Citizens United, that independent expenditures do not give rise to corruption or even give the appearance of corruption. But he said the majority had made it plain that it hasn’t the slightest interest in reconsidering or altering its decision.

Congress can — and should — require disclosure of secret donations. The Internal Revenue Service should crack down on political organizations that pose as tax-exempt “social welfare” organizations to avoid current disclosure rules.

But, for now, the nation’s highest court has chosen to turn its back as elections are bought by the biggest check writers.

    Citizens United, NYT, 25.6.2012,






Immigration Law


June 25, 2012
The New York Times


The Supreme Court rejected the foundation of Arizona’s cold-blooded immigration law and the indefensible notion the state can have its own foreign policy. In a 5-to-3 decision, the court blocked three of four provisions in the statute and gave a significant, though incomplete, victory to the federal government.

The majority opinion, by Justice Anthony Kennedy, knocked out sections of Arizona’s 2010 statute, S.B. 1070, that made it a crime not to carry immigration papers in the state and a crime for an undocumented immigrant to apply for a job or to work there. The court also struck down a section that gave state officers power to arrest without a warrant anyone that they had “probable cause to believe” had committed a crime that could make that person subject to deportation.

Justice Kennedy’s opinion rests heavily on the principle that the federal government has exclusive power over immigration policy as part of its power to control relations with foreign nations — and thus pre-empts states from entering this area of governance.

The ruling is a clear warning to other states that they, too, are barred from writing their own immigration laws, including imposing state punishments on the undocumented. Arizona’s fallacious claim that part of its statute was intended merely to help federal agents do their job was rejected outright.

The court said the requirement to carry papers intruded on federal registration of immigrants. The criminal section, it said, added prohibitions “where no federal counterpart exists.” And the provision allowing the state to arrest a person for being deportable breached “the principle that the removal process is entrusted to the discretion of the federal government.”

The one section the court did uphold requires officers to check the immigration status of anyone they stop, arrest or detain on some other legitimate basis — if the officer has a “reasonable suspicion” the person is in the country illegally. Justice Kennedy wrote that until that provision is put into operation, the court could not assume that it would be applied in ways that conflict with federal law.

But the intent of the law is to harass Hispanics and to drive out immigrants by “attrition through enforcement.” That section of the law, as it goes into effect, will promote racial profiling of all Hispanics, including American citizens and legal residents. By mandating verification of immigration status even when it is unlikely the federal government will deport the individual, the provision sows fear that any contact with law enforcement — even for a jaywalking ticket — could result in detention.

Justice Kennedy’s opinion noted that allowing the provision to stand for now “does not foreclose other pre-emption and constitutional challenges to the law as interpreted and applied after it goes into effect.”

But in allowing the section to stand, the majority bends over backward not to deal forthrightly with the racial context of Arizona’s immigration efforts. The majority should have struck it down as well.

A pending lawsuit against S.B. 1070, including this section, could become a compelling challenge on the basis of discrimination. The Justice Department should ensure that the state’s application of this section is as careful as the Supreme Court said it expects.

    Immigration Law, NYT, 25.6.2012,






Justices Allow Retrial on Rejected Charges


May 24, 2012
The New York Times


WASHINGTON — The Supreme Court ruled on Thursday that a criminal defendant may be retried even though the jury in his first trial had unanimously rejected the most serious charges against him. The vote was 6 to 3, with the justices split over whether the constitutional protection against double jeopardy barred such reprosecutions.

The case arose from the death in 2007 of a 1-year-old Arkansas boy, Matthew McFadden Jr., from a head injury he suffered while at home with his mother’s boyfriend, Alex Blueford. The prosecution said Mr. Blueford had slammed Matthew into a mattress; Mr. Blueford said he had accidentally knocked the boy to the floor.

Mr. Blueford was charged under four theories, in decreasing order of seriousness: capital murder (though the state did not seek the death penalty), first-degree murder, manslaughter and negligent homicide.

The jurors were instructed to consider the most serious charge first and move to the next only if they unanimously agreed that Mr. Blueford was not guilty. In this way, they were to work their way down to the appropriate conviction, or to an acquittal.

After a few hours of deliberation, the jurors announced that they were deadlocked. The forewoman told the judge that the jury had unanimously agreed that Mr. Blueford was not guilty of capital or first-degree murder, but she said it was divided, 9 to 3, in favor of guilt on the manslaughter charge.

The jury deliberated for an additional half-hour but could not reach a verdict. The court declared a mistrial.

Prosecutors sought to retry Mr. Blueford on all four charges. His lawyers agreed that he could be retried on the less serious ones but said double jeopardy principles should preclude his retrial on the charges of capital murder and first-degree murder.

Chief Justice John G. Roberts Jr., writing for the majority, said Mr. Blueford could be retried on all of the charges because “the foreperson’s report was not a final resolution of anything.” When the jurors returned to their deliberations after the forewoman spoke, he said, they could have changed their minds about the two more serious charges.

“The fact that deliberations continued after the report deprives that report of the finality necessary to constitute an acquittal on the murder offenses,” the chief justice wrote. Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas, Stephen G. Breyer and Samuel A. Alito Jr. joined the majority opinion.

Mr. Blueford’s lawyers also argued that the trial judge should not have declared a mistrial without first asking the jury whether, in the end, the defendant had been found not guilty of some charges. Chief Justice Roberts said the judge had acted appropriately, as “the jury’s options in this case were limited to two: either convict on one of the offenses, or acquit on all.”

In dissent, Justice Sonia Sotomayor wrote that the majority had improperly given prosecutors “the proverbial second bite at the apple.”

“The forewoman’s announcement in open court that the jury was ‘unanimous against’ conviction on capital and first-degree murder,” she wrote, “was an acquittal for double jeopardy purposes.”

Justice Sotomayor said the trial judge should have asked for a partial verdict from the jury before declaring a mistrial. She added that the protections of the Constitution’s double jeopardy clause were needed in light of “the threat to individual freedom from reprosecutions that favor states and unfairly rescue them from weak cases.”


Justices Ruth Bader Ginsburg and Elena Kagan joined the dissent in the case,

Blueford v. Arkansas, No. 10-1320.

    Justices Allow Retrial on Rejected Charges, NYT, 24.5.2012,






Let Arizona’s Law Stand


April 22, 2012
The New York Times



THE United States Supreme Court is scheduled to hear arguments on Wednesday in Arizona v. United States, the Obama administration’s challenge to Arizona’s immigration law, known as S.B. 1070. The law requires local law enforcement to make immigration-status determinations — traditionally the prerogative of the federal government — and to arrest people suspected of being undocumented. S.B. 1070 effectively makes undocumented status a crime under state law and penalizes unauthorized employment.

Arizona is one of several states, including Alabama, Georgia, South Carolina and Indiana, that, frustrated by Congress’s idling on immigration reform, have challenged federal authority by taking it upon themselves to devise draconian policies for undocumented immigrants. Alabama’s law even requires schools to collect immigration-status data on their students.

Such laws are misguided at best, mean-spirited and racially tainted at worst. The conventional wisdom among immigration advocates is that immigrant interests will be best served if the Supreme Court makes an example of Arizona’s law by striking it down.

But in the long run, immigrant interests will be better helped if the Supreme Court upholds S.B. 1070. Laws like Arizona’s are such bad policy that, left to their own devices, they will die a natural death — and their supporters will suffer the political consequences.

Undocumented immigrants may themselves be politically powerless, but they have powerful allies. In Alabama and Georgia, dismayed farmers have watched crops rot in the fields for want of immigrant labor. Arizona is estimated to have lost more than $140 million from convention cancellations made in protest.

Even more important is the prospect of lost foreign investment. Caught in the net of Alabama’s law in November was a German Mercedes-Benz executive, who left his passport at home while out for a drive and as a result found himself in a county jail. Mercedes has a plant in Tuscaloosa that employs thousands of Alabamians and adds many hundreds of millions of dollars to the state economy. That embarrassment will make the next foreign company think twice as it scouts out a location for a manufacturing facility in the United States.

Even without such blunders, international human rights advocates, union organizers and shareholder activists are putting these laws on the corporate social-responsibility agenda. Earlier this month, opponents of Alabama’s law traveled to Berlin to press the issue at Daimler’s annual meeting. This is the kind of hassle that corporations hate. Why deal with Alabama or Arizona when you can build in North Carolina or Florida, states that have refrained from pursuing extreme anti-immigrant measures?

Similar anti-immigrant laws are often introduced but rarely enacted, as corporate interests work quietly to kill or defang them. Mississippi became the latest state to refuse to follow in Arizona’s footsteps when an illegal-immigration bill died in a State Senate committee earlier this month in the face of opposition from prominent local business groups.

In those states that have enacted laws, there are moves to roll them back. The Alabama House of Representatives has approved a Republican-sponsored bill to soften its current law. At the local level, Riverside, N.J., repealed a similar ordinance following the exodus of an economically vibrant immigrant community.

In other words, the problem will largely self-correct. But even to the extent that it doesn’t, the courts should still refrain from overturning such laws. Judicial intervention risks generating its own backlash. If the Supreme Court strikes down S.B. 1070, anti-immigrant constituencies will redouble their efforts to enact tougher laws at the federal level. A cautionary tale here is California’s Proposition 187, a punitive immigration law that was blocked by a federal court in 1994 before it went into effect. Two years later, undaunted supporters helped push through the harshest overhaul of federal immigration policy in decades.

Even if some of these state immigration laws survive political, corporate and consumer opposition on the ground, it’s better to have the scattered imposition of state laws than the blanket coverage of a federal measure. Other states and localities are welcoming immigrants, legal or not. That fact gets lost in the common indictment of state and local immigration measures as a “patchwork.” One of federalism’s core virtues is the possibility of competition among states. Competition in this context is likely to vindicate pro-immigrant policies.

We should hold our noses and hope the Supreme Court lets S.B. 1070 stand, so we can watch it wither away on its own.


Peter J. Spiro is a law professor at Temple University.

    Let Arizona’s Law Stand, NYT, 22.4.2012,






Justices to Rule on Role of the States in Immigration


April 22, 2012
The New York Times


LENOX, Ga. — When Georgia passed a law last year authorizing the local police to question and detain illegal immigrants, Darvin Eason felt the impact immediately on his farms here in south Georgia.

At the peak of the harvest, many of the Mexican workers he had relied on to pick his blackberries were scared away from the state. Ripe berries fell to the ground uncollected, and Mr. Eason lost $20,000 — even though the sections of the law that struck fear in the immigrants had been suspended by federal courts.

So Mr. Eason is one of many people across the country who will be watching closely when the Supreme Court hears arguments on Wednesday on the bitterly disputed immigration enforcement law that was passed two years ago in Arizona, inspiring the Georgia statute and similar ones in Alabama, Indiana, South Carolina and Utah.

Arizona’s law, known as SB 1070, expanded the powers of state police officers to ask about the immigration status of anyone they stop, and to hold those suspected of being illegal immigrants. The law was challenged by the Obama administration, and four of its most contentious provisions were suspended by federal courts. Courts later temporarily blocked other state laws, including the one in Georgia.

Constitutional lawyers on both sides of the argument say the case raises fundamental questions about federal powers. With the strong conservative bent the court has shown this session, a distinct possibility has emerged that the justices could uphold at least some of the Arizona law’s contested sections, going against the trend in the lower courts on the core legal issues.

The Arizona case, lawyers said, could lead the Supreme Court to redraw long-established boundaries between the federal government and the states when it comes to immigration enforcement, which has been considered a nearly exclusive federal preserve.

If the court endorses any part of Arizona’s approach, it would provide a big lift to groups that campaign against illegal immigration, which have clamored for tough action by states, saying the federal government has failed to do its part. It could rekindle political battles in state legislatures, including in Georgia, where support for Arizona-style laws had begun to fade in the wake of unanticipated consequences like those Mr. Eason and other Georgia farmers faced.

The central issue in the arguments the court will hear is the Obama administration’s contention that Arizona’s police provisions encroached disruptively on federal terrain.

“Arizona has adopted its own immigration policy, which focuses solely on maximum enforcement and pays no heed to the multifaceted judgments” that immigration law provides for the executive branch to make, the Obama administration wrote in its brief.

Lucas Guttentag, a law professor teaching at Stanford who was the top immigrants’ rights lawyer at the American Civil Liberties Union, which has participated in challenges to statutes in Arizona and other states, said that “in many respects, this is a defining moment for the court on whether a historic line will be breached.”

“Will immigration law continue to be governed by national interest,” he said, “or will the court allow every state and locality to intrude in immigration policy and assert local biases and prejudices?”

Arizona’s supporters say the state is well within its rights to enact a measure that they say would help, not hinder, federal agents. Dan Stein, the president of the Federation for American Immigration Reform, a group that seeks reduced immigration, accused the Obama administration of trying to seize power from the states, calling its lawsuit “a bald-faced usurpation of the American people’s right to decide who comes and who goes in our country.” Mr. Stein’s group assisted Arizona in writing its law.

Immigrant and Latino groups have assailed SB 1070, saying it would unleash a wave of discriminatory arrests. Those civil rights issues are not directly before the Supreme Court in the current case. But if the justices strike down the Arizona law, it would be a powerful victory for those groups. Aside from the five states that enacted police laws similar to Arizona’s, at least eight additional states weighed such legislation but did not move forward, with many awaiting the outcome in the Supreme Court.

But even if the court widens the way for immigration action by states, the negative fallout that followed Arizona-style policing laws has made many lawmakers cautious.

Mississippi considered an enforcement bill this year, but the State Senate allowed it to die after a surge of opposition from business and agriculture interests. Alabama saw months of turmoil after the state adopted an even tougher law than Arizona’s last year. Last week, lawmakers there revised the legislation to mitigate its impact on businesses and schools.

In Georgia, after an outcry from farmers, the legislature ended its session without any new immigration measures for the first time in six years.

The Arizona law explicitly adopts a strategy known as attrition through enforcement, designed to make it so difficult and risky for illegal immigrants to live and work in the state that they will decide voluntarily to return home, or “self-deport.”

Events here in Georgia showed how effective policing measures can be at driving illegal immigrants from a state. Georgia has been passing laws aimed at making it hard for illegal immigrants to live and work here since 2006. D. A. King, a staunch foe of illegal immigration who was a driving force behind most of those laws, said the measures deterred illegal immigrants from settling in Georgia, saving taxpayers money. He said the policing law adopted last year built on those earlier initiatives.

“If you use local authorities as a force multiplier for federal enforcement agencies,” Mr. King said, “that is the terror that illegal aliens really fear.”

Indeed, just the rumor that Georgia had adopted an Arizona-style law sent a chill through Hispanic immigrant communities throughout the southern farming region.

“The workers were afraid,” said Mr. Eason, surveying his exuberantly fertile blackberry patch here. “A lot of them were afraid their families are going to get separated. Some of them may be legal and some of them illegal, and they want to keep all the families together.”

Mr. Eason, 72, a tall, silver-haired farmer who has been working in agriculture for three decades, could not recall a more acute labor shortage. Mexican farm workers from Florida, who normally would head to Georgia for the summer months, stayed home. Georgia farm workers did not come out, worried that a simple roadway police stop could lead to deportation.

Some Georgia workers headed to North Carolina, which, like Florida, has considered but not passed an Arizona-style law.

A labor office advertisement Mr. Eason placed for 16 workers brought one local man, who lasted half a day in the heat of Georgia summer, the farmer said.

Eventually, learning that the courts had suspended the measure, some immigrants came back to work.

But the effect has been felt beyond illegal immigrants. Mr. Eason also runs a big cotton gin nearby, with longtime employees who are legal immigrant residents or Mexican-American citizens. In interviews, they said their communities felt under siege.

“It’s hard, very hard, and it affects a lot of people,” said Armando Martinez, 39, an American citizen who is a foreman at the cotton gin. “Everybody just watches TV to see what’s going on with the law.”

Georgia farmers are cutting back on their spring planting. Some small farmers have warned that they could go out of business if the labor supply continues to decline. With agriculture the biggest industry in the state, the Georgia Agribusiness Council has been vocal in its complaints to Gov. Nathan Deal, a Republican.

Mr. King, the advocate for more restrictive state laws, said a Supreme Court ruling in favor of Arizona would bring a “sigh of relief” in Georgia, giving the state additional confidence that it was on firm legal ground. But Mr. Eason and other farmers in the region, many of whom describe themselves as conservatives, were surprised to find themselves hoping the Supreme Court would not expand the scope for the states.

“We need the labor,” Mr. Eason said. “We need the federal government to get control of illegal aliens.”

    Justices to Rule on Role of the States in Immigration, NYT, 22.4.2012,






Bring the Justices Back to Earth


April 9, 2012
The New York Times


Durham, N.C.

GIVEN the very real possibility that the Supreme Court will overturn the Affordable Care Act, liberals are concerned that the right-wing tilt of five justices and lifelong appointments ensure a decades-long assault on the power of Congress. This is especially likely given the relative youth of the bloc’s conservative members: an average of 66 years old, when the last 10 justices to retire did so at an average age of 78.

The situation brings to mind a proposal voiced most prominently by Gov. Rick Perry during his run for the Republican presidential nomination: judicial term limits.

The idea isn’t new. High-ranking judges in all major nations, and all 50 states, are subject to age or term limits. The power to invalidate legislation is, in a sense, the ultimate political power, and mortals who exercise it need constraint. So why not the highest court in the land?

One reason sometimes given is that Congress could not enact strict limits without amending Article III of the Constitution, which provides that justices hold office for the period of their “good behavior.” Long lives were uncommon in 1788, so the issue of prolonged service was not considered by the framers.

Instead, they simply borrowed the term “good behavior” from a law enacted by the English Parliament in 1701 to deter a king dissatisfied with a judicial decision from firing the judge who made it. Interestingly, that same Parliament has long since imposed age limits on its nation’s judges — as has virtually every national constitution written since 1789.

Indeed, Mr. Perry wasn’t the first person to propose adjusting the political powers of our highest court, nor is the idea an exclusively conservative one. In 2009 a politically diverse group of law professors, including me, proposed a system that would work around the need to amend the Constitution — an extremely unlikely possibility — yet still capture the benefits of term limits.

Here’s how our plan would work. Every two years the president would appoint a new justice to the court, but only the nine most junior justices, by years of service, would sit and decide every case.

The rest would then act as a sort of “bench” team, sitting on cases as needed because of the disability or disqualification of one of the junior justices. These senior justices might also help decide which of the thousands of petitions the court receives each year should be fully considered, vote on procedural rulemaking, and perhaps sit on occasional cases presented to lower circuit courts.

In short, our proposal would revise the job of a justice to a more human scale and perhaps make the court less likely to impose erratic political preferences on the citizens it governs. Because it would assure regular turnover, the court would experience fewer long-term ideological swings, enabling it to better do its original job of anchoring the legislative process to the Constitution.

The founders clearly intended to confer on Congress the power to define the number and role of justices. The Judiciary Act of 1789 set the number of justices at seven and imposed on them the duty to travel the nation in horse-drawn wagons to hear and decide cases.

In 1800 the Federalists reduced the size of the court in an effort to deny President Jefferson an opportunity to make an appointment. The number rose to 10 during the Civil War to prevent those sympathizing with the Confederacy from doing harm to the Union.

In 1937, when the court was invalidating New Deal legislation, Congress considered a law adding justices, but the bill was defeated when the need for it was eliminated (one justice unexpectedly upheld a challenged law; another anti-New Deal justice retired).

If five of our present justices broadly prohibit the federal government from providing accessible health care, Congress should consider using its constitutional power again to add two more justices — and impose a reasonable limit on the length of time that a mere mortal should hold so much political power.


Paul D. Carrington is a law professor at Duke.

    Bring the Justices Back to Earth, NYT, 9.4.2012,






Down the Insurance Rabbit Hole


April 4, 2012
The New York Times


Cambridge, Mass.

ON the second day of oral arguments over the Affordable Care Act, Solicitor General Donald B. Verrilli Jr., trying to explain what sets health care apart, told the Supreme Court, “This is a market in which you may be healthy one day and you may be a very unhealthy participant in that market the next day.” Justice Antonin Scalia subsequently expressed skepticism about forcing the young to buy insurance: “When they think they have a substantial risk of incurring high medical bills, they’ll buy insurance, like the rest of us.”

May the justices please meet my sister-in-law. On Feb. 8, she was a healthy 32-year-old, who was seven and a half months pregnant with her first baby. On Feb. 9, she was a quadriplegic, paralyzed from the chest down by a car accident that damaged her spine. Miraculously, the baby, born by emergency C-section, is healthy.

Were the Obama health care reforms already in place, my brother and sister-in-law’s situation — insurance-wise and financially — would be far less dire. My brother’s small employer — he is the manager of a metal-fabrication shop — does not offer health insurance, which was too expensive for them to buy on their own. Fortunately, my sister-in-law had enrolled in the Access for Infants and Mothers program, California’s insurance plan for middle-income pregnant women. AIM coverage extends 60 days postpartum and paid for her stay in intensive care and early rehabilitation.

But when the 60 days is up next week, the family will fall through the welfare medicine rabbit hole. As a scholar of social policy at M.I.T., I teach students how the system works. Now I am learning, in real time.

For health coverage, the baby fares best. He is insured through Healthy Families, California’s version of the Children’s Health Insurance Program, the federal-state plan for lower-income children ineligible for Medicaid whose families cannot afford private insurance. California is relatively generous, with eligibility extending up to 250 percent of the federal poverty level of $19,090 for a family of three; 27 states have lower limits.

When the AIM coverage expires, my sister-in-law will be covered by Medi-Cal, California’s version of Medicaid, because she is disabled and has limited income. But because my brother works, they are subject to cost-sharing: they pay the first $1,100 of her health costs each month. Paying $1,100 leaves them with a monthly income of just 133 percent of the federal poverty level. If my brother makes more money, their share of the cost increases.

They must also meet the Medi-Cal asset test: beyond their house and one vehicle, they can hold $3,150 in total assets, a limit last adjusted in 1989. They cannot save for retirement (retirement plans are not exempt from the asset test in California, as they are in some states). They cannot save for college (California is not among the states that have exempted 529 college savings plans from their asset tests). They cannot establish an emergency fund. Family members like me cannot give them financial help, at least not officially. If either of them receives an inheritance, it will go to Medi-Cal. Medi-Cal services that my sister-in-law uses after age 55 will be added to a tab that she will rack up over the rest of her life. When she and my brother die, the state will put a lien on their estate; their child may inherit nothing. Even my brother’s hobby runs afoul of the asset test: he enjoys working on old cars, which he can no longer keep.

These are the limitations under which 7.5 million Medi-Cal recipients live. Nationwide, more than 50 million people are covered by their states’ version of Medicaid. Some states are more lenient in their income and asset tests, others less so. Nowhere is life in these programs a picnic.

That said, Medicaid is an important safety net for the poor, and the Obama reform would expand the program to cover all Americans under 133 percent of the poverty level (currently one has to be both poor and categorically eligible — a child or a pregnant woman, for example). But for the middle class who are thrust into Medicaid by circumstance, the program’s strictures are truly life-altering. My brother and sister-in-law desperately wanted to buy insurance and now wonder how to escape Medi-Cal’s forced penury. My sister-in-law will qualify for Medicare after the mandatory 24-month waiting period for disabled people, but Medi-Cal will be the secondary payer.

Their best hope is the survival of the Obama reform. Perhaps my brother can get a job that offers health insurance for the family, but without the reform’s protections, like the prohibition on denying coverage for pre-existing conditions, removal of annual and lifetime insurance caps, and reinsurance for large claims, there is no guarantee that they could obtain insurance. More likely, they would buy insurance on a health exchange. Here in Massachusetts, where such an exchange is in place, they could have purchased a plan with an affordable premium (at their income level, the monthly premiums range from $39 to $91 per adult). And these money and insurance issues would not have added to the other stresses in their profoundly changed lives.

Instead, their financial future is shattered. Family and friends are raising money to buy a wheelchair van and to renovate their home for accessibility. The generosity of the local community is stunning. One incident in particular struck me to the core. A woman from a small community nearby had something for us. A cancer survivor, she had decided to “give back” by placing donation cans in stores around town. She had finished her drive and consolidated the money. The small coffee can she handed over to me and my sister-in-law had a slit in the lid and was decorated with pink felt and ribbons, now a little smudged from handling. Inside were several hundred dollars in small bills. We burst into tears. This is social policy in the richest nation in the history of the world.


Andrea Louise Campbell is an associate professor of political science

at the Massachusetts Institute of Technology.

    Down the Insurance Rabbit Hole, NYT, 4.4.2012,






Men in Black


April 3, 2012
The New York Times



How dare President Obama brush back the Supreme Court like that?

Has this former constitutional law instructor no respect for our venerable system of checks and balances?

Nah. And why should he?

This court, cosseted behind white marble pillars, out of reach of TV, accountable to no one once they give the last word, is well on its way to becoming one of the most divisive in modern American history.

It has squandered even the semi-illusion that it is the unbiased, honest guardian of the Constitution. It is run by hacks dressed up in black robes.

All the fancy diplomas of the conservative majority cannot disguise the fact that its reasoning on the most important decisions affecting Americans seems shaped more by a political handbook than a legal brief.

President Obama never should have waded into the health care thicket back when the economy was teetering. He should have listened to David Axelrod and Rahm Emanuel and not Michelle.

His failure from the start to sell his plan or even explain it is bizarre and self-destructive. And certainly he needs a more persuasive solicitor general.

Still, it was stunning to hear Antonin Scalia talking like a Senate whip during oral arguments last week on the constitutionality of the health care law. He mused on how hard it would be to get 60 votes to repeal parts of the act, explaining why the court may just throw out the whole thing. And, sounding like a campaign’s oppo-research guy, he batted around politically charged terms like “Cornhusker Kickback,” referring to a sweetheart deal that isn’t even in the law.

If he’s so brilliant, why is he drawing a risible parallel between buying health care and buying broccoli?

The justices want to be above it all, beyond reproach or criticism. But why should they be?

In 2000, the Republican majority put aside its professed disdain of judicial activism and helped to purloin the election for W., who went on to heedlessly invade Iraq and callously ignore Katrina.

As Anthony Lewis wrote in The Times back then, “Deciding a case of this magnitude with such disregard for reason invites people to treat the court’s aura of reason as an illusion.”

The 2010 House takeover by Republicans and the G.O.P. presidential primary have shown what a fiasco the Citizens United decision is, with self-interested sugar daddies and wealthy cronies overwhelming the democratic process.

On Monday, the court astoundingly ruled — 5 Republican appointees to 4 Democratic appointees — to give police carte blanche on strip-searches, even for minor offenses such as driving without a license or violating a leash law. Justice Stephen Breyer’s warning that wholesale strip-searches were “a serious affront to human dignity and to individual privacy” fell on deaf ears. So much for the conservatives’ obsession with “liberty.”

The Supreme Court mirrors the setup on Fox News: There are liberals who make arguments, but they are weak foils, relegated to the background and trying to get in a few words before the commercials.

Just as in the Senate’s shameful Anita Hill-Clarence Thomas hearings, the liberals on the court focus on process and the conservatives focus on results. John Roberts Jr.’s benign beige facade is deceiving; he’s a crimson partisan, simply more cloaked than the ideologically rigid and often venomous Scalia.

Just as Scalia voted to bypass that little thing called democracy and crown W. president, so he expressed ennui at the idea that, even if parts of the health care law are struck down, some provisions could be saved: “You really want us to go through these 2,700 pages?” he asked, adding: “Is this not totally unrealistic?”

Inexplicably mute 20 years after he lied his way onto the court, Clarence Thomas didn’t ask a single question during oral arguments for one of the biggest cases in the court’s history.

When the Supreme Court building across from the Capitol opened in 1935, the architect, Cass Gilbert, played up the pomp, wanting to reflect the court’s role as the national ideal of justice.

With conservatives on that court trying to block F.D.R., and with Roosevelt prepared to pack the court, the New Yorker columnist Howard Brubaker noted that the new citadel had “fine big windows to throw the New Deal out of.”

Now conservative justices may throw Obama’s hard-won law out of those fine big windows. They’ve already been playing Twister, turning precedents into pretzels to achieve their political objective. In 2005, Scalia was endorsing a broad interpretation of the commerce clause and the necessary and proper clause, the clauses now coming under scrutiny from the majority, including the swing vote, Justice Anthony Kennedy. (Could the dream of expanded health care die at the hands of a Kennedy?)

Scalia, Roberts, Thomas and the insufferable Samuel Alito were nurtured in the conservative Federalist Society, which asserts that “it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.”

But it isn’t conservative to overturn a major law passed by Congress in the middle of an election. The majority’s political motives are as naked as a strip-search.

    Men in Black, NYT, 3.4.2012, http://www.nytimes.com/2012/04/04/opinion/dowd-men-in-black.html






The Supreme Court’s Momentous Test


March 27, 2012
The New York Times


In ruling on the constitutionality of requiring most Americans to obtain health insurance, the Supreme Court faces a central test: whether it will recognize limits on its own authority to overturn well-founded acts of Congress.

The skepticism in the questions from the conservative justices suggests that they have adopted the language and approach of the insurance mandate’s challengers. But the arguments against the mandate, the core of the health care reform law, willfully reject both the reality of the national health care market and established constitutional principles that have been upheld for generations.

The Obama administration persuasively argues that the mandate is central to solving the crisis in America’s health care system, which leaves 50 million people uninsured and accounts for 17.6 percent of the national economy. The challengers contend that the law is an unlimited — and, therefore, unconstitutional — use of federal authority to force individuals to buy insurance, or pay a penalty.

That view wrongly frames the mechanism created by this law. The insurance mandate is nothing like requiring people to buy broccoli — a comparison Justice Antonin Scalia suggested in his exasperated questioning of Solicitor General Donald Verrilli Jr. Congress has no interest in requiring broccoli purchases because the failure to buy broccoli does not push that cost onto others in the system.

Congress has indisputable authority to regulate national markets and provide for the general welfare through its broad power to tax. Nothing about the mandate falls outside those clearly delineated powers.

In fact, Justice Scalia has, in the recent past, declared Congress’s broad authority under the commerce clause to regulate activities with far less direct economic impact. In a 2005 case upholding a federal law prohibiting the growing of medical marijuana for personal use, he wrote that Congress may regulate even intrastate activities “that do not themselves substantially affect interstate commerce.”

The skepticism of Chief Justice John Roberts Jr. and Justices Scalia and Samuel Alito Jr. was also troubling because it seemed to accept an odd distinction of timing made by the opponents of the law.

Those critics concede that the mandate would be constitutional if it went into effect at the moment an individual actually needed health care. In other words, Congress could require the sick and dying to pay for insurance or for medical services when they show up in the emergency room, but it cannot require precoverage of medical costs through insurance.

The court has no authority under the Constitution to judge the merits or effectiveness of the health care law. That is Congress’s job.

Yet, as Justice Stephen Breyer remarked about the points made by a lawyer for the opponents: “All that sounds like you’re debating the merits of the bill.” To counter the challengers’ claims of alarm over a novel policy, he offered several examples in American history where the court has strongly backed new solutions to major problems, like the creation of a national bank in the early 19th century.

If the Supreme Court hews to established law, the only question it must answer in this case is modest: Did Congress have a rational basis for concluding that the economic effects of a broken health care system warranted a national solution? The answer is incontrovertibly yes.

    The Supreme Court’s Momentous Test, NYT, 27.3.2012,






Contingency Plans Are Few

if Court Strikes Down Insurance Requirement


March 27, 2012
The New York Times


WASHINGTON — After a day punctuated by seeming skepticism from Supreme Court conservatives about the constitutionality of requiring Americans to buy health insurance, the justices will turn their attention on Wednesday to how much of the 2010 health care law might survive if they strike down that mandate.

If the court invalidates the insurance requirement, the White House and a divided Congress would be left to pick up the pieces. Their first steps toward finding alternatives to reduce the number of uninsured in the country — nearly 50 million, or one in six Americans — would depend heavily on how far the Supreme Court goes, and on the balance of power in Washington after the November elections.

Lower courts that have ruled against the insurance mandate have adopted a spectrum of positions. Judge Roger Vinson of Federal District Court in Pensacola, Fla., who first ruled in the case now before the Supreme Court, invalidated the entirety of the Affordable Care Act, writing that the insurance mandate could not be legally separated from the rest of the expansive law. He stayed that judgment until the law could be reviewed by higher courts.

The Court of Appeals for the 11th Circuit in Atlanta upheld Judge Vinson’s invalidation of the insurance mandate. But it significantly scaled back the impact by concluding that only the mandate itself would die.

The Obama administration will argue on Wednesday for a middle ground that is driven by economic assumptions as well as legal analysis. If the mandate falls, the Justice Department has said, two politically popular provisions must die naturally with it — those that prohibit insurers from declining coverage or charging higher premiums because of pre-existing medical conditions.

The economic argument is that it would be unreasonable to expect health insurers to cover the sickest Americans if the healthiest ones are not required to pay for coverage and broaden the actuarial pool. “If you are told that you can buy insurance anytime, you would wait until you got sick and buy it en route to the hospital,” said Neal K. Katyal, the former acting solicitor general, who argued the health care case before the 11th Circuit.

But there also is a clear political component to linking the insurance mandate to the insurance regulations. A poll taken this month by The New York Times and CBS News found that while more Americans disapprove than approve of the law’s insurance requirement, the abolition of pre-existing condition exclusions is wildly popular, with 85 percent saying they supported it.

The health care law began requiring that insurers cover children regardless of their health in September 2010, but the ban would not apply to adults until 2014.

In court on Wednesday, the challengers to the law will argue that the entire act must fall along with the mandate. The court has appointed an outside lawyer, H. Bartow Farr III, to argue the 11th Circuit’s position, that the mandate could fall alone.

White House officials said that they remain confident that the Supreme Court will uphold the law, and that they have done no planning for the possibility of its full or partial demise.

Congressional leaders in both parties also said there had been no significant contingency planning.

“I think the law is going to be found constitutional, and if not we’ll have to deal with it then,” said Representative Henry A. Waxman, a California Democrat.

Representative Paul Ryan, the Wisconsin Republican chairman of the House Budget Committee, said his party would continue to press for repeal of the law and substantial changes to government insurance programs.

So long as the court does not invalidate the entire law, many other components — and the taxes to pay for them — could remain in place even if the mandate and related insurance regulations are struck down. They include a vast expansion of Medicaid eligibility and the establishment of health insurance exchanges, offering subsidized coverage to those with low incomes, both scheduled to start in 2014.

Other provisions that might survive include increased prescription drug benefits for Medicare recipients, requirements that insurers cover preventive services like cancer screening, incentives for doctors to adopt electronic records, and grant programs aimed at disease prevention and restructuring the medical payment system.

Some health care experts have suggested that there might be ways to replace the insurance mandate by using market incentives to encourage the uninsured to gain coverage.

The government could, for instance, give consumers limited enrollment periods to buy insurance so they could not wait until they were ill. Or it could tell them that if they did not buy a policy during a defined period they also would not be eligible for benefits, like subsidized coverage.

But supporters of the health care law contend that such measures would insure only a fraction of the 30 million estimated to gain coverage with the mandate in place.

“There are alternatives to the mandate, but none of them are considered as effective,” said Neera Tanden, a former Obama aide who now heads the Center for American Progress.

Drew Altman, the president of the Kaiser Family Foundation, a health care research group, said that without the mandate the number of uninsured and the premiums paid for coverage would almost certainly rise.

He said that the partisan divide in Washington, where Republicans have vowed to repeal the health care act, makes it difficult to imagine Congress seeking any kind of repair.

“States may be forced to stitch together a variety of imperfect state-specific approaches if the mandate falls,” Dr. Altman said. “It is useful to remember that we have averaged 19 years between national health reform debates, and only passed national health reform legislation once.”

    Contingency Plans Are Few if Court Strikes Down Insurance Requirement, NYT, 27.3.2012,






In Court, Sharp Questions on Health Care Law’s Mandate


March 27, 2012
The New York Times


WASHINGTON — With the fate of President Obama’s health care law hanging in the balance, a lawyer for the administration faced a barrage of skeptical questions on Tuesday from four of the Supreme Court’s more conservative justices, suggesting that a 5-to-4 decision to strike down the law was a live possibility.

Predicting the result in any Supreme Court case, much less one that will define the legacies of a president and a chief justice, is nothing like a science, and the case could still turn in various directions. But the available evidence indicated that the heart of the Affordable Care Act is in peril.

The court’s decision is expected by June, and much may change as the justices deliberate and exchange draft opinions in the coming months.

If the indications from Tuesday’s arguments are correct, though, the ruling may undo parts or all of the overhaul of the health insurance system, deal Mr. Obama a political blow in the midst of the presidential election season, and revise the constitutional relationship between the federal government and the states.

The tone on Tuesday made a question to be addressed in the third and final day of arguments on Wednesday all the more important: If the individual mandate requiring most Americans to obtain health insurance or pay a penalty fell, what other parts of the law would fall along with it?

On Tuesday, Justice Anthony M. Kennedy, the court’s swing justice, asked a host of questions indicating discomfort with the law.

“Can you create commerce in order to regulate it?” Justice Kennedy asked the administration’s lawyer, Solicitor General Donald B. Verrilli Jr., only minutes into the argument. He later told Mr. Verrilli that the federal government faced “a heavy burden of justification” and pressed him to articulate “some limits on the commerce clause” of the Constitution.

“You are,” Justice Kennedy said, “changing the relationship of the individual to the government.”

Justice Kennedy’s questioning is often hard to read, and near the end of the argument he noted that “most questions in life are matters of degree.” But his questioning was, on balance, skeptical.

Justices Antonin Scalia and Samuel A. Alito Jr. were consistently hostile to the law. Chief Justice John G. Roberts Jr. was a little less so.

The conventional view is that the administration will need one of those four votes to win, and it was not clear that it had captured one.

The court’s four more liberal members — Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — indicated that they supported the law, as expected. Justice Clarence Thomas, who asked no questions, is thought likely to vote to strike down the law.

Everything about Tuesday’s argument was outsize. It was, at two hours, twice the usual length. The questioning was, even for the garrulous current court, unusually intense and pointed. And the atmosphere in the courtroom, which is generally subdued, was electric.

Mr. Verrilli seemed taken aback by the hostile reception from the court’s conservatives. He got off to a rocky start and never seemed to quite find his footing during his hour at the Supreme Court lectern.

Paul D. Clement, representing the 26 states challenging the law, and Michael A. Carvin, representing private challengers, were more assured, perhaps encouraged by the first part of the argument. Mr. Clement is a particularly fluid and conversational advocate, and he seemed eager to parry questions from the court’s liberal wing.

Wednesday’s argument about the other elements of the law may provide further clues about the fate of the mandate. It is one thing, after all, to ask questions about a hypothetical ruling striking down the mandate and another to seek practical advice about the consequences of such a decision.

The central legal question for the justices on Tuesday was whether Congress had exceeded its constitutional authority to regulate interstate commerce in enacting the insurance mandate.

Mr. Verrilli argued that the law was a valid response to a crisis in the market for health care. The individual mandate, he said, merely regulates how people pay for services they are virtually certain to use at some point in their lives and is well within the authority granted to the federal government by the Constitution.

Justice Ginsburg seemed to agree, saying the mandate was a response to the fact that uninsured people receive free health care that ends up being paid for by others. “The problem is that they are making the rest of us pay,” she said.

Justice Sotomayor said Americans would not stand for a system in which children in danger of dying were turned away from emergency rooms.

But several of the more conservative justices seemed unpersuaded that a ruling to uphold the law could be a limited one. Justice Alito said the market for burial services had features similar to the one for health care. Chief Justice Roberts asked why the government could not require people to buy cellphones to use to call emergency service providers.

Justice Scalia discussed the universal need to eat.

“Everybody has to buy food sooner or later, so you define the market as food,” he said. “Therefore, everybody is in the market. Therefore, you can make people buy broccoli.”

Justice Alito asked Mr. Verrilli to “express your limiting principle as succinctly as you possibly can.”

Instead of a brisk summary of why a ruling upholding law would not have intolerably broad consequences, Mr. Verrilli gave a convoluted answer. First of all, he said, Congress has the authority to enact a comprehensive response to a national economic crisis, and the mandate should be sustained as part of that response.

He added: “Congress can regulate the method of payment by imposing an insurance requirement in advance of the time in which the service is consumed when the class to which that requirement applies either is or virtually most certain to be in that market when the timing of one’s entry into that market and what you will need when you enter that market is uncertain and when you will get the care in that market, whether you can afford to pay for it or not and shift costs to other market participants.”

The Supreme Court has read the commerce clause broadly, saying it allows Congress to limit how much wheat may be grown on a family farm and to punish the cultivation of homegrown marijuana.

There have been only two modern exceptions to that broad interpretation. In 1995, the court struck down a federal law regulating guns near schools. In 2000, it struck down a federal law allowing suits over violence against women. In both cases, the court said the activity sought to be regulated was local and noncommercial.

Justice Breyer said those precedents and others demonstrated that Congress was free to address problems in the delivery of health care.

“I look back into history,” he said, “and I see it seems pretty clear that if there are substantial effects on interstate commerce, Congress can act.” An example, he said, was “the national bank, which was created out of nothing to create other commerce out of nothing.”

Mr. Clement, representing the 26 states in the case, Department of Health and Human Services v. Florida, No. 11-398, said it was one thing to establish a bank and another “to force the citizenry to put all of their money in the bank.” The second sort of law, he suggested, would be analogous to the individual mandate.

Justice Breyer asked whether people entered the health care market simply by being born.

Mr. Carvin, the lawyer for the private challengers, said that “if being born is entering the market,” then “that literally means they can regulate every human activity from cradle to grave.”

    In Court, Sharp Questions on Health Care Law’s Mandate, NYT, 27.3.2012,






Getting to the Merits


March 26, 2012
The New York Times


Before ruling on whether Congress has power to require Americans to obtain health insurance, the Supreme Court must decide whether it is barred from taking up that question by the federal Anti-Injunction Act, which prohibits courts from hearing lawsuits that seek to block a tax before the tax is actually paid.

During an hour and a half of oral arguments on Monday, the justices showed their interest in addressing the merits of the case and their skepticism that the Anti-Injunction Act posed an insurmountable hurdle to doing so. That instinct seems right.

The Affordable Care Act will alter the national health care markets to help all Americans, and putting off judgment on the spurious constitutional objections from the law’s opponents would delay putting those arguments to rest — and likely make it more difficult for the government to provide health coverage to millions of Americans who do not have it now.

The justices also seemed properly concerned about finding a way to rule narrowly on the Anti-Injunction Act issue if they dismiss it, to avoid creating a precedent with unintended consequences, like allowing a flood of unwanted court challenges to government assessments.

In a friend-of-the-court brief filed at the request of the court, Robert Long Jr., an independent advocate, argued that the Supreme Court should dismiss the case “for lack of jurisdiction” because the penalty, which is imposed on people who do not obtain insurance, would not be collected until 2015. Solicitor General Donald Verrilli Jr. proposed a sensible way for the court to address the merits of the health care case, without eviscerating the anti-injunction law in other types of tax cases.

The Obama administration, while agreeing with Mr. Long that the anti-injunction law bars federal courts from hearing certain tax cases before their time, concludes that the penalty for failure to obtain insurance under the Affordable Care Act is not a tax as defined by the statute.

The administration’s position is subtle, but legally sound. As Mr. Verrilli explained, in interpreting a statute like the Anti-Injunction Act, “the precise choice of words” matters. If the Affordable Care Act had called the penalty a tax, the Anti-Injunction Act would likely have knocked out this case. Justice Stephen Breyer further pointed out in court, “Congress has nowhere used the word ‘tax.’ What it says is penalty. Moreover, this is not in the Internal Revenue Code ‘but for purposes of collection.’ And so why is this a tax?”

This issue is technical, and it is imperative that the justices interpret the anti-injunction law so that the ruling in this case is consistent with what makes sense in conventional tax cases. A careful analysis of this law will allow the court to get to the case’s central questions.

    Getting to the Merits, NYT, 26.3.2012,






Groups Blanket Supreme Court on Health Care


March 24, 2012
The New York Times


WASHINGTON — Justice Clarence Thomas likens all the outside political pressure that the Supreme Court is facing over its review of the Obama administration’s sweeping health care law to the distraction faced by a free-throw shooter confronted with fans waving wildly behind the basket. Neither, in his view, has much impact in the end.

“Why do you think they’re never distracted? They’re focusing on the rim, right?” Justice Thomas said when asked at a forum two weeks ago about the pressures of the health care case. “That’s the same thing here. You stay focused on what you’re supposed to do. All that other stuff is just noise.”

With three days of arguments scheduled for this week, the nine justices will need the steely nerves of a clutch free-throw shooter to block out all the noise surrounding a case that has generated perhaps the most intense outside lobbying campaign that the court has ever seen.

The U.S. Chamber of Commerce, which has helped lead opposition to the health care law, has been hosting moot court sessions to prepare lawyers involved in the case. Advocates on all sides of the issues, including Tea Party leaders who are against the law and health care professionals who favor it, are planning rallies. Many groups, like the American Constitution Society, liberal backers of the law and of Congress’s power to regulate commerce, are setting up war rooms and daily briefings on the Supreme Court steps.

In all, groups involved in the debate have spent tens of millions of dollars in the last two years to steer the political and legal debate. And a record number of organizations — 136 so far — have filed amicus curiae or “friend of the court” briefs, densely packed with historical citations and legal arguments, to urge the court to either strike down or uphold the law.

“Whenever you see a blockbuster case, we see the different groups coming out,” said Anthony Franze, a Washington lawyer who was a co-author of a study of such amicus briefs. “And this is the blockbuster of blockbusters.”

With the start of arguments this week, the lobbying efforts move from Congress squarely to the Supreme Court, which has found itself drawn increasingly into politically charged cases in recent years, including its intervention in the 2000 Florida recount in Bush v. Gore; its rulings limiting the sweep of executive power in Guantánamo Bay; and its remaking of campaign finance law in the 2010 Citizens United ruling.

Lobbyists and lawyers with a stake in the case will be giving near-instant analysis for their clients and for reporters, many of whom will be covering the arguments from start to finish.

Proponents of the sweeping 2010 law, working with the White House, have also developed “talking points” to emphasize the potential harm if the law is thrown out, including the reduction in coverage for those with pre-existing conditions and for young adults who wish to remain on their parents’ policies.

The groups filing amicus briefs include not only the usual heavy hitters like the chamber, AARP and virtually every major health care association, but also obscure groups that have rarely, if ever, been involved in a Supreme Court case.

“We don’t expect to be even a blip on the court’s radar, except to maybe count up the ‘for’ and ‘against,’ ” said Quentin Rhoades, a lawyer for the Montana Shooting Sports Association, which filed a 26-page brief opposing the law as a breach of states’ rights. He said he spent about 50 hours, pro bono, preparing the brief with another lawyer.

Dozens of other constituencies filing briefs put in similar efforts.

Economists are wading into the debate with briefs that offer clashing views of the benefits and harms that they believe the health care law brings.

Catholic and anti-abortion groups are opposing it because of concerns about federal financing for abortion services.

And the State of Massachusetts, which approved a similar insurance model under Gov. Mitt Romney in 2006, argues in its amicus brief that its experience “confirms that Congress had a rational basis” to impose minimum insurance requirements.

Typically, law clerks wade through the amicus briefs — known as green books for their covers — and highlight notable issues for the justices. But getting a justice’s ear is not cheap.

Lawyers who work on amicus briefs before the Supreme Court say it can cost $25,000 to $100,000 in lawyers’ time and expenses to prepare one, plus $1,500 or more to have them printed and distributed at the court.

But does the cajoling from outside groups have any real impact on the court’s decisions? At least in the case of the formal amicus briefs filed with the court, research suggests that the answer, increasingly, is yes.

A study published last year in The National Law Journal by Mr. Franze and R. Reeves Anderson, his colleague at the law firm Arnold & Porter, found the Supreme Court justices not only receiving more amicus briefs than ever before, but also citing them as support for their opinions far more often as well.

But the effects of less formal politicking — news coverage, rallies, protests, forums and other “noise,” as Justice Thomas called it — are less clear.

In a speech last year in Kansas City, Justice Stephen G. Breyer said politics outside the court’s chambers generally did not play a part in its deliberations.

But there are no doubt times when it has, he acknowledged, pointing as one example to the court’s infamous Dred Scott decision in 1857 that classified blacks as property but not citizens.

When Justice Thomas was asked about the outside pressure in the health care case at a law forum at Wake Forest University this month, he brushed it aside with a wave of the hand, saying all that matters are the formal pleadings that sit in a mail bin.

“All that other background noise, I never — I don’t listen to all this stuff,” he said. “I don’t read the papers, I don’t watch the evening news.” If justices let outside pressures distract them, he said, “in my opinion, you have no business in the job.”

Among the stories in the news media over the last few months were questions about whether he and Justice Elena Kagan could objectively consider the health care case because of personal and political connections.

Liberals in Congress and elsewhere contend that Justice Thomas’s objectivity is called into question by the paid consulting work that his wife, Ginny Thomas, has done with Tea Party groups in opposing the health care law.

Conservatives, meanwhile, assert that Justice Kagan’s own impartiality could be compromised by her role as President Obama’s first solicitor general during the start of the legal fight over the health care legislation.

Neither justice has indicated any hesitation to hear the case. And Chief Justice John G. Roberts Jr. has said that he has confidence in all his justices to decide when they may want to remove themselves from a case because of a possible conflict.

Bradley W. Joondeph, a law professor at Santa Clara University who has cataloged briefs in the case, said that while he saw no need for either justice’s recusal, he believes it is unrealistic to think the court could fully insulate itself from outside pressures.

“There’s no way for human beings to screen out the rest of the world on a decision like this,” Mr. Joondeph said. “This just sort of stands out as one of those cases where the institutional stature of the court is on the line.”

    Groups Blanket Supreme Court on Health Care, NYT, 24.3.2012,






Justices’ Ruling Expands Rights of Accused in Plea Bargains


March 21, 2012
The New York Times


WASHINGTON — Criminal defendants have a constitutional right to effective lawyers during plea negotiations, the Supreme Court ruled on Wednesday in a pair of 5-to-4 decisions that vastly expanded judges’ supervision of the criminal justice system.

The decisions mean that what used to be informal and unregulated deal making is now subject to new constraints when bad legal advice leads defendants to reject favorable plea offers.

“Criminal justice today is for the most part a system of pleas, not a system of trials,” Justice Anthony M. Kennedy wrote for the majority. “The right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining takes in securing convictions and determining sentences.”

Justice Kennedy, who more often joins the court’s conservative wing in ideologically divided cases, was in this case in a coalition with the court’s four more liberal members. That alignment has sometimes arisen in recent years in cases that seemed to offend Justice Kennedy’s sense of fair play.

The consequences of the two decisions are hard to predict because, as Justice Antonin Scalia said in a pair of dissents he summarized from the bench, “the court leaves all of this to be worked out in further litigation, which you can be sure there will be plenty of.”

Claims of ineffective assistance at trial are commonplace even though trials take place under a judge’s watchful eye. Challenges to plea agreements based on misconduct by defense lawyers will presumably be common as well, given how many more convictions follow guilty pleas and the fluid nature of plea negotiations.

Justice Scalia wrote that expanding constitutional protections to that realm “opens a whole new boutique of constitutional jurisprudence,” calling it “plea-bargaining law.”

Scholars agreed about its significance.

“The Supreme Court’s decision in these two cases constitute the single greatest revolution in the criminal justice process since Gideon v. Wainwright provided indigents the right to counsel,” said Wesley M. Oliver, a law professor at Widener University, referring to the landmark 1963 decision.

In the context of trials, the Supreme Court has long established that defendants were entitled to new trials if they could show that incompetent work by their lawyers probably affected the outcome. The Supreme Court has also required lawyers to offer competent advice in urging defendants to give up their right to a trial by accepting a guilty plea. Those cases hinged on the right to a fair trial guaranteed by the Sixth Amendment.

The cases decided Wednesday answered a harder question: What is to be done in cases in which a lawyer’s incompetence caused the client to reject a favorable plea bargain?

Justice Kennedy, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, acknowledged that allowing the possibility of do-overs in cases involving foregone pleas followed by convictions presented all sorts of knotty problems. But he said the realities of American criminal justice required to the court to take action.

Some 97 percent of convictions in federal courts were the result of guilty pleas. In 2006, the last year for which data was available, the corresponding percentage in state courts was 94.

“In today’s criminal justice system,” Justice Kennedy wrote, “the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.”

Quoting from law review articles, Justice Kennedy wrote that plea bargaining “is not some adjunct to the criminal justice system; it is the criminal justice system.” He added that “longer sentences exist on the books largely for bargaining purposes.”

One of the cases, Missouri v. Frye, No. 10-444, involved Galin E. Frye, who was charged with driving without a license in 2007. A prosecutor offered to let him plead guilty in exchange for a 90-day sentence.

But Mr. Frye’s lawyer at the time, Michael Coles, failed to tell his client of the offer. After it expired, Mr. Frye pleaded guilty without a plea bargain, and a judge sentenced him to three years.

A state appeals court reversed his conviction but said it did not have the power to order the state to reduce the charges against him. That left Mr. Frye roughly where he started, with the options of going to trial or pleading guilty without the benefit of a plea deal.

Justice Kennedy wrote that Mr. Frye should have been allowed to try to prove that he would have accepted the original offer. But that was only the beginning of what Mr. Frye would have to show to get relief. He would also have to demonstrate, Justice Kennedy wrote, that prosecutors would not have later withdrawn the offer had he accepted it, as they were allowed to do under state law. Finally, Justice Kennedy went on, Mr. Frye would have to show that the court would have accepted the agreement.

There was reason for doubt that Mr. Frye could prove that prosecutors and the court would have ended up going along with the original 90-day offer, as Mr. Frye was again arrested for driving without a license before the original plea agreement would have become final.

Justice Scalia, in a dissent joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr., called all of this “a process of retrospective crystal-ball gazing posing as legal analysis.”

The second case, Lafler v. Cooper, No. 10-209, concerned Anthony Cooper, who shot a woman in Detroit in 2003 and then received bad legal advice. Because all four of his bullets had struck the victim below her waist, his lawyer incorrectly said, Mr. Cooper could not be convicted of assault with intent to murder.

Based on that advice, Mr. Cooper rejected a plea bargain that called for a sentence of four to seven years. He was convicted, and is serving 15 to 30 years.

Justice Kennedy rejected the argument that a fair trial was all Mr. Cooper was entitled to.

“The favorable sentence that eluded the defendant in the criminal proceeding appears to be the sentence he or others in his position would have received in the ordinary course, absent the failings of counsel,” he wrote.

A federal judge in Mr. Cooper’s case tried to roll back the clock, requiring officials to provide him with the initial deal or release him. Justice Kennedy said the correct remedy was to require the plea deal to be re-offered and then to allow the trial court to resentence Mr. Cooper as it sees fit if he accepts it.

Justice Scalia, here joined by Chief Justice Roberts and Justice Thomas, said this was “a remedy unheard of in American jurisprudence.”

“I suspect that the court’s squeamishness in fashioning a remedy, and the incoherence of what it comes up with, is attributable to its realization, deep down, that there is no real constitutional violation here anyway,” Justice Scalia wrote. “The defendant has been fairly tried, lawfully convicted and properly sentenced, and any ‘remedy’ provided for this will do nothing but undo the just results of a fair adversarial process.”

Stephanos Bibas, a law professor at the University of Pennsylvania and an authority on plea bargaining, said the decisions were a great step forward. But he acknowledged that it may give rise to gamesmanship.

“It is going to be tricky,” he said, “and there are going to be a lot of defendants who say after they’re convicted that they really would have taken the plea.”

Justice Kennedy suggested several “measures to help ensure against late, frivolous or fabricated claims.” Among them were requiring that plea offers be in writing or made in open court.

    Justices’ Ruling Expands Rights of Accused in Plea Bargains, NYT, 21.3.2012,






At Heart of Health Law Clash,

a 1942 Case of a Farmer’s Wheat


March 19, 2012
The New York Times


WASHINGTON — If the Obama administration persuades the Supreme Court to uphold its health care overhaul law, it will be in large part thanks to a 70-year-old precedent involving an Ohio farmer named Roscoe C. Filburn.

Mr. Filburn sued to overturn a 1938 federal law that told him how much wheat he could grow on his family farm and made him pay a penalty for every extra bushel.

The 1942 decision against him, Wickard v. Filburn, is the basis for the Supreme Court’s modern understanding of the scope of federal power. It is the contested ground on which the health care case has been fought in the lower courts and in the parties’ briefs. And it is likely to be crucial to the votes of Justices Anthony M. Kennedy and Antonin Scalia, who are widely seen as open to persuasion by either side.

“Wickard has become so foundational for generations of lawyers that any plausible understanding of the commerce power must come to terms with it,” said Bradley W. Joondeph, a law professor at Santa Clara University.

Both supporters and opponents of the health care law say the decision helps their side, and for three days starting next Monday, it will be at the center of the arguments before the Supreme Court about the law’s constitutionality.

To hear the Obama administration tell it, the Filburn decision illustrates just how much leeway the federal government has under the Constitution’s commerce clause to regulate the choices individuals make in matters affecting the national economy. If the government can make farmers choose between growing crops on their own land and paying a penalty, the administration’s lawyers have said, it can surely tell people that they must obtain health insurance or pay a penalty.

Opponents of the law draw a different lesson from Mr. Filburn’s case. They say it set the outer limit of federal power, one the health care law exceeds. It is one thing to encourage farmers to buy wheat by punishing them for growing their own, the argument goes. It is another to require people to buy insurance or face a penalty, as the health care law does.

“There’s a difference between being given an incentive and compulsion,” said Michael A. Carvin, a lawyer for the National Federation of Independent Business and several individuals challenging the law.

Mr. Filburn argued, as do opponents of the health care overhaul, that he was challenging a law that was not authorized by the Constitution, which allows Congress to regulate commerce “among the several states.” A decision against him, Mr. Filburn said, would move the nation toward a centralized government and “nullifications of all constitutional limitations.”

The Supreme Court’s ruling against him was unanimous.

“Even if appellee’s activity be local,” Justice Robert H. Jackson wrote, referring to Mr. Filburn’s farming, “and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.”

The Obama administration says the decisions of millions of people to go without health insurance have a similarly significant effect on the national economy by raising other people’s insurance rates and forcing hospitals to pay for the emergency care of those who cannot afford it.

At the time, the reaction to the Filburn decision emphasized how much power it had granted the federal government.

“If the farmer who grows feed for consumption on his own farm competes with commerce, would not the housewife who makes herself a dress do so equally?” an editorial in The New York Times asked. “The net of the ruling, in short, seems to be that Congress can regulate every form of economic activity if it so decides.”

The editorial, like much commentary on the case, seemed to suppose that Mr. Filburn was a subsistence farmer. But in fact he sold milk and eggs to some 75 customers a day, and the wheat he fed to his livestock entered the stream of commerce in that sense, according to a history of the case by Jim Chen, the dean of the law school at the University of Louisville.

In the health care case, the administration has insisted that the overhaul law is a modest assertion of federal power in comparison to the law Mr. Filburn challenged. “The constitutional foundation for Congress’s action is considerably stronger” for the health care law than for the law that the Supreme Court endorsed in 1942, the administration said in a recent brief. The health care law, the brief said, merely “regulates the way in which the uninsured finance what they will consume in the market for health care services (in which they participate).”

Opponents of the law take the opposite view, using an analogy. It is true that the federal government may “regulate bootleggers because of their aggregate harm to the interstate liquor market,” Mr. Carvin wrote in a recent brief. But the government “may not conscript teetotalers merely because conditions in the liquor market would be improved if more people imbibed.”

“Yet the uninsured regulated by the mandate,” the brief went on, “are the teetotalers, not the bootleggers, of the health insurance market.”

For more than 50 years after ruling against Mr. Filburn, the Supreme Court did not strike down any federal laws on commerce clause grounds. But in a pair of 5-to-4 decisions, in 1995 and 2000, the court invalidated two laws, saying the activities that Congress had sought to address — guns near schools and violence against women — were local and noncommercial and thus beyond its power in regulating interstate commerce.

The decisions were part of a renewed interest in federalism associated with Chief Justice William H. Rehnquist, who died in 2005, and Justice Sandra Day O’Connor, who retired in 2006.

Those two justices were still on the court in 2005 when it issued its last major commerce clause decision, Gonzales v. Raich. That decision was 6 to 3 in favor of upholding a federal law regulating home-grown medicinal marijuana.

Chief Justice Rehnquist and Justice O’Connor dissented, as well as Justice Clarence Thomas. But Justices Scalia and Kennedy, who had voted to strike down the laws at issue in the 1995 and 2000 cases, were in the majority.

“The similarities between this case and Wickard are striking,” Justice John Paul Stevens wrote for five members of the court, including Justice Kennedy. “Here, too, Congress had a rational basis for concluding that leaving home-consumed marijuana outside federal control would similarly affect price and market conditions.”

Justice Scalia wrote a separate concurrence, also citing Wickard v. Filburn.

“Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce,” he wrote, in a passage that the Obama administration quoted prominently in a recent brief in the health care case.

Supporters of the health care law say the Raich decision shows that even completely local and noncommercial conduct may be addressed by the federal government as part of comprehensive economic regulation. Opponents counter that marijuana, like wheat, is a tangible commodity that is bought and sold, while a lack of insurance is not an economic activity.

The administration is probably assured of the votes of the court’s four more liberal members, and it needs one more to win the case. How Justices Kennedy and Scalia think about wheat, marijuana, health insurance and Roscoe Filburn may make all the difference.

    At Heart of Health Law Clash, a 1942 Case of a Farmer’s Wheat, NYT, 19.3.2012,






Justices Take Up Race as a Factor in College Entry


February 21, 2012
The New York Times


WASHINGTON — In a 2003 decision that the majority said it expected would last for 25 years, the Supreme Court allowed public colleges and universities to take account of race in admission decisions. On Tuesday, the court signaled that it might end such affirmative action much sooner than that.

By agreeing to hear a major case involving race-conscious admissions at the University of Texas, the court thrust affirmative action back into the public and political discourse after years in which it had mostly faded from view. Both supporters and opponents of affirmative action said they saw the announcement — and the change in the court’s makeup since 2003 — as a signal that the court’s five more conservative members might be prepared to do away with racial preferences in higher education.

The consequences of such a decision would be striking. It would, all sides agree, reduce the number of African-American and Latino students at nearly every selective college and graduate school, with more Asian-American and white students gaining entrance instead.

A decision barring the use of race in admission decisions would undo an accommodation reached in the Supreme Court’s 5-to-4 decision in 2003 in Grutter v. Bollinger: that public colleges and universities could not use a point system to increase minority enrollment but could take race into account in vaguer ways to ensure academic diversity.

Supporters of affirmative action reacted with alarm to the court’s decision to hear the case. “I think it’s ominous,” said Lee Bollinger, the president of Columbia University, who as president of the University of Michigan was a defendant in the Grutter case. “It threatens to undo several decades of effort within higher education to build a more integrated and just and educationally enriched environment.”

Opponents saw an opportunity to strike a decisive blow on an issue that had partly faded from view. “Any form of discrimination, whether it’s for or against, is wrong,” said Hans von Spakovsky, a legal fellow at the Heritage Foundation, who added that his daughter was applying to college. “The idea that she might be discriminated against and not be admitted because of her race is incredible to me.”

Arguments in the new case are likely to be heard just before the presidential election in November, and they may force the candidates to weigh in on a long dormant and combustible issue that has divided the electorate. There was little immediate reaction from the campaign trail and in official Washington on Tuesday, which may be attributable to the political risks the issue presents to both Democrats and Republicans.

Some polls show that a narrow majority of Americans support some forms of affirmative action, though much depends on how the question is framed, and many people have at least some reservations.

The new case, Fisher v. University of Texas, No. 11-345, was brought by Abigail Fisher, a white student who says the University of Texas denied her admission because of her race. The case has idiosyncrasies that may limit its reach, but it also has the potential to eliminate diversity as a rationale sufficient to justify any use of race in admission decisions — the rationale the court endorsed in the Grutter decision. Diversity, Justice Sandra Day O’Connor wrote, encourages lively classroom discussions, fosters cross-racial harmony and cultivates leaders seen as legitimate. But critics say there is only a weak link between racial and academic diversity.

The Grutter decision allowed but did not require states to take account of race in admissions. Several states, including California and Michigan, forbid the practice, and public universities in those states have seen a drop in minority admissions. In other states and at private institutions, officials generally look to race and ethnicity as one factor among many, leading to the admission of significantly more black and Hispanic students than basing the decisions strictly on test scores and grades would.

A Supreme Court decision forbidding the use of race in admission at public universities would almost certainly mean that it would be barred at most private ones as well under Title VI of the Civil Rights Act of 1964, which forbids racial discrimination in programs that receive federal money. In her majority opinion in Grutter, Justice O’Connor said the day would come when “the use of racial preferences will no longer be necessary” in admission decisions to foster educational diversity. She said she expected that day to arrive in 25 years, or in 2028. Tuesday’s decision to revisit the issue suggests the deadline may arrive just a decade after Grutter.

The court’s membership has changed since 2003, most notably with the appointment of Justice Samuel A. Alito Jr., who replaced Justice O’Connor in 2006. Justice Alito has voted with the court’s more conservative justices in decisions hostile to government use of racial classification.

Chief Justice John G. Roberts Jr. has been particularly skeptical of government programs that take account of race. “Racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity,’ ” he wrote in a 2007 decision limiting the use of race to achieve integration in public school districts.

Justices Alito, Antonin Scalia and Clarence Thomas agreed. Justice Anthony M. Kennedy, the court’s swing justice, also voted to invalidate the programs. But he was less categorical, sharply limiting the role race could play in children’s school assignments but stopping short of forbidding school districts from ever taking account of race. Still, Justice Kennedy has never voted to uphold an affirmative action program.

In Texas, students in the top 10 percent of high schools are automatically admitted to the public university system, a policy that does not consider race but increases racial diversity in part because so many high schools are racially homogenous. Ms. Fisher just missed that cutoff at her high school in Sugar Land, Tex., and then entered a separate pool of applicants who can be admitted through a complicated system in which race plays an unquantified but significant role. She sued in 2008.

Ms. Fisher is soon to graduate from Louisiana State University. Lawyers for the University of Texas said that meant she had not suffered an injury that a court decision could address, meaning she does not have standing to sue.

Ms. Fisher’s argument is that Texas cannot have it both ways. Having implemented a race-neutral program to increase minority admissions, she says, Texas may not supplement it with a race-conscious one. Texas officials said the additional effort was needed to make sure that individual classrooms contained a “critical mass” of minority students.

The lower federal courts ruled for the state. Chief Judge Edith Jones of the United States Court of Appeals for the Fifth Circuit, dissenting from the full appeals court’s decision not to rehear Ms. Fisher’s case, was skeptical of state officials’ rationale. “Will classroom diversity ‘suffer’ in areas like applied math, kinesiology, chemistry, Farsi or hundreds of other subjects if, by chance, few or no students of a certain race are enrolled?” she asked.

Justice Elena Kagan disqualified herself from hearing the case, presumably because she had worked on it as solicitor general.

    Justices Take Up Race as a Factor in College Entry, NYT, 21.2.2012,






Justices Say GPS Tracker Violated Privacy Rights


January 23, 2012
The New York Times


WASHINGTON — The Supreme Court on Monday ruled unanimously that the police violated the Constitution when they placed a Global Positioning System tracking device on a suspect’s car and monitored its movements for 28 days.

A set of overlapping opinions in the case collectively suggested that a majority of the justices are prepared to apply broad privacy principles to bring the Fourth Amendment’s ban on unreasonable searches into the digital age, when law enforcement officials can gather extensive information without ever entering an individual’s home or vehicle.

Walter Dellinger, a lawyer for the defendant in the case and a former acting United States solicitor general, said the decision was “a signal event in Fourth Amendment history.”

“Law enforcement is now on notice,” Mr. Dellinger said, “that almost any use of GPS electronic surveillance of a citizen’s movement will be legally questionable unless a warrant is obtained in advance.”

An overlapping array of justices were divided on the rationale for the decision, with the majority saying the problem was the placement of the device on private property.

But five justices also discussed their discomfort with the government’s use of or access to various modern technologies, including video surveillance in public places, automatic toll collection systems on highways, devices that allow motorists to signal for roadside assistance, location data from cellphone towers and records kept by online merchants.

The case concerned Antoine Jones, who was the owner of a Washington nightclub when the police came to suspect him of being part of a cocaine-selling operation. They placed a tracking device on his Jeep Grand Cherokee without a valid warrant, tracked his movements for a month and used the evidence they gathered to convict him of conspiring to sell cocaine. He was sentenced to life in prison.

The United States Court of Appeals for the District of Columbia Circuit overturned his conviction, saying the sheer amount of information that had been collected violated the Fourth Amendment, which bars unreasonable searches. “Repeated visits to a church, a gym, a bar or a bookie tell a story not told by any single visit, as does one’s not visiting any of those places in the course of a month,” Judge Douglas H. Ginsburg wrote for the appeals court panel.

The Supreme Court affirmed that decision, but on a different ground. “We hold that the government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search,’ ” Justice Antonin Scalia wrote for the majority. Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Sonia Sotomayor joined the majority opinion.

“It is important to be clear about what occurred in this case,” Justice Scalia went on. “The government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”

When the case was argued in November, a lawyer for the federal government said the number of times the federal authorities used GPS devices to track suspects was “in the low thousands annually.”

Vernon Herron, a former Maryland state trooper now on the staff of the University of Maryland’s Center for Health and Homeland Security, said state and local law enforcement officials used GPS and similar devices “all the time,” adding that “this type of technology is very useful for narcotics and terrorism investigations.”

Monday’s decision thus places a significant burden on widely used law enforcement surveillance techniques, though the authorities remain free to seek warrants from judges authorizing the surveillance.

In a concurrence for four justices, Justice Samuel A. Alito Jr. faulted the majority for trying to apply 18th-century legal concepts to 21st-century technologies. What should matter, he said, is the contemporary reasonable expectation of privacy.

“The use of longer-term GPS monitoring in investigations of most offenses,” Justice Alito wrote, “impinges on expectations of privacy.” Justices Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan joined the concurrence.

“We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the four-week mark,” Justice Alito wrote. “Other cases may present more difficult questions.”

Justice Scalia said the majority did not mean to suggest that its property-rights theory of the Fourth Amendment displaced the one focused on expectations of privacy.

“It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question,” he wrote.

Justice Sotomayor joined the majority opinion, agreeing that many questions could be left for another day “because the government’s physical intrusion on Jones’s Jeep supplies a narrower basis for decision.”

But she left little doubt that she would have joined Justice Alito’s analysis had the issue he addressed been the exclusive one presented in the case.

“Physical intrusion is now unnecessary to many forms of surveillance,” Justice Sotomayor wrote.

She added that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”

“People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries and medications they purchase to online retailers,” she wrote. “I, for one, doubt that people would accept without complaint the warrantless disclosure to the government of a list of every Web site they had visited in the last week, or month, or year.”

Justice Alito listed other “new devices that permit the monitoring of a person’s movements” that fit uneasily with traditional Fourth Amendment privacy analysis.

“In some locales,” he wrote, “closed-circuit television video monitoring is becoming ubiquitous. On toll roads, automatic toll collection systems create a precise record of the movements of motorists who choose to make use of that convenience. Many motorists purchase cars that are equipped with devices that permit a central station to ascertain the car’s location at any time so that roadside assistance may be provided if needed and the car may be found if it is stolen.”

    Justices Say GPS Tracker Violated Privacy Rights, NT, 23.1.2012,






Religious Groups Given ‘Exception’ to Work Bias Law


January 11, 2012
The New York Times


WASHINGTON — In what may be its most significant religious liberty decision in two decades, the Supreme Court on Wednesday for the first time recognized a “ministerial exception” to employment discrimination laws, saying that churches and other religious groups must be free to choose and dismiss their leaders without government interference.

“The interest of society in the enforcement of employment discrimination statutes is undoubtedly important,” Chief Justice John G. Roberts Jr. wrote in a decision that was surprising in both its sweep and its unanimity. “But so, too, is the interest of religious groups in choosing who will preach their beliefs, teach their faith and carry out their mission.”

The decision gave only limited guidance about how courts should decide who counts as a minister, saying the court was “reluctant to adopt a rigid formula.” Two concurring opinions offered contrasting proposals.

Whatever its precise scope, the ruling will have concrete consequences for countless people employed by religious groups to perform religious work. In addition to ministers, priests, rabbis and other religious leaders, the decision appears to encompass, for instance, at least those teachers in religious schools with formal religious training who are charged with instructing students about religious matters.

Douglas Laycock, a law professor at the University of Virginia who argued the case on behalf of the defendant, a Lutheran school, said the upshot of the ruling was likely to be that “substantial religious instruction is going to be enough.”

Asked about professors at Catholic universities like Notre Dame, Professor Laycock said: “If he teaches theology, he’s covered. If he teaches English or physics or some clearly secular subjects, he is clearly not covered.”

The case, Hosanna-Tabor Church v. Equal Employment Opportunity Commission, No. 10-553, was brought by Cheryl Perich, who had been a teacher at a school in Redford, Mich., that was part of the Lutheran Church-Missouri Synod, the second-largest Lutheran denomination in the United States. Ms. Perich said she was fired for pursuing an employment discrimination claim based on a disability, narcolepsy.

Ms. Perich had taught mostly secular subjects but also taught religion classes and attended chapel with her class.

“It is true that her religious duties consumed only 45 minutes of each workday,” Chief Justice Roberts wrote, “and that the rest of her day was devoted to teaching secular subjects.”

“The issue before us, however, is not one that can be resolved with a stopwatch,” he wrote.

Instead, the court looked to several factors. Ms. Perich was a “called” teacher who had completed religious training and whom the school considered a minister. She was fired, the school said, for violating religious doctrine by pursuing litigation rather than trying to resolve her dispute within the church.

The Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, said Wednesday’s decision could have pernicious consequences, by, for instance, barring suits from pastors who are sexually harassed.

“Blatant discrimination is a social evil we have worked hard to eradicate in the United States,” he said in a statement. “I’m afraid the court’s ruling today will make it harder to combat.”

Bishop William E. Lori, chairman of the United States Conference of Catholic Bishops’ ad hoc committee for religious liberty, called the ruling “a great day for the First Amendment.”

“This decision,” he said in a statement, “makes resoundingly clear the historical and constitutional importance of keeping internal church affairs off limits to the government — because whoever chooses the minister chooses the message.”

Chief Justice Roberts devoted several pages of his opinion to a history of religious freedom in Britain and the United States, concluding that an animating principle behind the First Amendment’s religious liberty clauses was to prohibit government interference in the internal affairs of religious groups generally and in their selection of their leaders in particular.

“The Establishment Clause prevents the government from appointing ministers,” he wrote, “and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.”

The decision was a major victory for a broad range of national religious denominations that had warned that the case was a threat to their First Amendment rights and their autonomy to decide whom to hire and fire. Some religious leaders had said they considered it the most important religious freedom case to go to the Supreme Court in decades.

Many religious groups were outraged when the Obama administration argued in support of Ms. Perich, saying this was evidence that the administration was hostile to historically protected religious liberties.

The administration had told the justices that their analysis of Ms. Perich’s case should be essentially the same whether she had been employed by a church, a labor union, a social club or any other group with free-association rights under the First Amendment. That position received withering criticism when the case was argued in October, and it was soundly rejected in Wednesday’s decision.

“That result is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations,” Chief Justice Roberts wrote. “We cannot accept the remarkable view that the religion clauses have nothing to say about a religious organization’s freedom to select its own ministers.”

Requiring Ms. Perich to be reinstated “would have plainly violated the church’s freedom,” Chief Justice Roberts wrote. And so would awarding her and her lawyers money, he went on, as that “would operate as a penalty on the church for terminating an unwanted minister.”

In a concurrence, Justice Clarence Thomas wrote that the courts should get out of the business of trying to decide who qualifies for the ministerial exception, leaving the determination to religious groups.

“The question whether an employee is a minister is itself religious in nature, and the answer will vary widely,” he wrote. “Judicial attempts to fashion a civil definition of ‘minister’ through a bright-line test or multifactor analysis risk disadvantaging those religious groups whose beliefs, practices and membership are outside of the ‘mainstream’ or unpalatable to some.”

In a second concurrence, Justice Samuel A. Alito Jr., joined by Justice Elena Kagan, wrote that it would be a mistake to focus on ministers, a title he said was generally used by Protestant denominations and “rarely if ever” by Roman Catholics, Jews, Muslims, Hindus or Buddhists. Nor, Justice Alito added, should the concept of ordination be at the center of the analysis.

Rather, he wrote, the exception “should apply to any ‘employee’ who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.”

At the argument in October, some justices expressed concern that a sweeping ruling would protect religious groups from lawsuits by workers who said they were retaliated against for, say, reporting sexual abuse.

Chief Justice Roberts wrote that Wednesday’s decision left the possibility of criminal prosecution and other protections in place.

“There will be time enough to address the applicability of the exception to other circumstances,” he wrote, “if and when they arise.”


Laurie Goodstein contributed reporting from New York.

    Religious Groups Given ‘Exception’ to Work Bias Law, NYT, 11.1.2012,




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