History > 2016 > USA > U.S. Supreme Court (I)

Supreme Court Blocks Order

Allowing Transgender Student

Restroom Choice

 

AUG. 3, 2016

The New York Times

By ADAM LIPTAK

WASHINGTON — The Supreme Court on Wednesday temporarily blocked a court order that had allowed a transgender boy to use the boys’ bathroom in a Virginia high school.

The vote was 5 to 3, with Justice Stephen G. Breyer joining the court’s more conservative members “as a courtesy.” He said that this would preserve the status quo until the court decided whether to hear the case. Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan dissented.

The court’s order has no effect on any other case.

The move came amid a national debate over transgender rights. A North Carolina law that requires transgender people to use bathrooms in government buildings that correspond with the gender listed on their birth certificates has drawn protests, boycotts and lawsuits. A directive from the Obama administration threatening schools with the loss of federal money for discrimination based on gender identity has been challenged in court by more than 20 states.

The case in the Supreme Court concerns Gavin Grimm, who was born female but identifies as a male and will soon start his senior year at Gloucester High School in southeastern Virginia. For a time, school administrators allowed Mr. Grimm to use the boys’ bathroom, but the local school board adopted a policy that required students to use the bathrooms and locker rooms for their “corresponding biological genders.” The board added that “students with gender identity issues” would be allowed to use private bathrooms.

Mr. Grimm sued, and a divided panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., ruled the policy unlawful. A trial judge then ordered school officials to let Mr. Grimm use the boys’ bathroom.

The school board has said that it will file a petition in late August asking the Supreme Court to hear its appeal. In the meantime, the board submitted an emergency application that asked the justices to let school officials continue to bar Mr. Grimm from the boys’ bathroom.

The alternative, the board’s lawyers said, was harm to “the basic expectations of bodily privacy” and “severe disruption to the school in the upcoming school year.” The American Civil Liberties Union, which represents Mr. Grimm, responded that the trial court’s order did not amount to the kind of irreparable harm that warrants a stay from the Supreme Court, as it concerned a single student in a single high school which has taken steps to increase privacy in restrooms for all students.

The legal question in the case, Gloucester County School Board v. G.G., No. 16A52, is whether the Obama administration was entitled to interpret a regulation under Title IX, a 1972 law that bans discrimination “on the basis of sex” in schools that receive federal money, to ban discrimination based on gender identity. The regulation, adopted in 1975, allowed schools to provide “separate toilet, locker rooms and shower facilities on the basis of sex.”

Last year, the federal Department of Education weighed in on the Gloucester School Board’s policy, saying schools “generally must treat transgender students consistent with their gender identity.” In May, the department issued a more general directive that said schools may lose federal money if they discriminate against transgender students.

The Fourth Circuit said the 1975 regulation was ambiguous and that the department’s interpretation of it was entitled to “controlling weight.”

Under a 1997 Supreme Court decision, Auer v. Robbins, agencies’ interpretations of their own regulations are generally entitled to deference. The Auer decision has been the subject of much criticism, and several justices have urged the Supreme Court to revisit the ruling. In a dissent in May, Justice Clarence Thomas said it was “on its last gasp.”

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A version of this article appears in print on August 4, 2016,
on page A9 of the New York edition with the headline:
Justices Block Transgender Restroom Court Order.

Supreme Court Blocks Order Allowing Transgender Student Restroom Choice,
NYT,
AUG. 3, 2016,
http://www.nytimes.com/2016/08/04/us/
politics/supreme-court-blocks-order-allowing-transgender-student-
restroom-choice.html

Supreme Court Strikes Down

Texas Abortion Restrictions

 

JUNE 27, 2016

The New York Times

By ADAM LIPTAK

WASHINGTON — The Supreme Court on Monday struck down parts of a restrictive Texas law that could have reduced the number of abortion clinics in the state to about 10 from what was once a high of roughly 40.

The 5-to-3 decision was the court’s most sweeping statement on abortion rights since Planned Parenthood v. Casey in 1992. It applied a skeptical and exacting version of that decision’s “undue burden” standard to find that the restrictions in Texas went too far.

The decision on Monday means that similar restrictions in other states are most likely also unconstitutional, and it imperils many other kinds of restrictions on abortion.

Justice Stephen G. Breyer wrote the majority opinion, joined by Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. dissented.

The decision concerned two parts of a Texas law that imposed strict requirements on abortion providers. It was passed by the Republican-dominated Texas Legislature and signed into law in July 2013 by Rick Perry, the governor at the time.

One part of the law requires all clinics in the state to meet the standards for ambulatory surgical centers, including regulations concerning buildings, equipment and staffing. The other requires doctors performing abortions to have admitting privileges at a nearby hospital.

“We conclude,” Justice Breyer wrote, “that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the federal Constitution.”

Last June, the United States Court of Appeals for the Fifth Circuit, in New Orleans, largely upheld the contested provisions of the Texas law, saying it had to accept lawmakers’ assertions about the health benefits of abortion restrictions. The appeals court ruled that the law, with minor exceptions, did not place an undue burden on the right to abortion.

Justice Breyer said the appeals court’s approach was at odds with the proper application of the undue-burden standard. The Casey decision, he said, “requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.”

In dissent, Justice Thomas said the majority opinion “reimagines the undue-burden standard,” creating a “benefits-and-burdens balancing test.” He said courts should resolve conflicting positions by deferring to legislatures.

“Today’s opinion,” Justice Thomas wrote, “does resemble Casey in one respect: After disregarding significant aspects of the court’s prior jurisprudence, the majority applies the undue-burden standard in a way that will surely mystify lower courts for years to come.”

The majority opinion considered whether the claimed benefits of the restrictions outweighed the burdens they placed on a constitutional right. Justice Breyer wrote that there was no evidence that the admitting-privileges requirement “would have helped even one woman obtain better treatment.”

At the same time, he wrote, there was good evidence that the admitting-privileges requirement caused the number of abortion clinics in Texas to drop from 40 to 20.

In a second dissent, Justice Alito, joined by Chief Justice Roberts and Justice Thomas, said the causal link between the law and the closures was unproven. Withdrawal of state funds, a decline in the demand for abortions and doctors’ retirements may have played a role, Justice Alito wrote.

Justice Breyer wrote that the requirement that abortion clinics meet the demanding and elaborate standards for ambulatory surgical centers also did more harm than good.

“Abortions taking place in an abortion facility are safe — indeed, safer than numerous procedures that take place outside hospitals and to which Texas does not apply its surgical-center requirements,” he wrote, reviewing the evidence. “Nationwide, childbirth is 14 times more likely than abortion to result in death, but Texas law allows a midwife to oversee childbirth in the patient’s own home.”

In dissent, Justice Alito said there was good reason to think that the restrictions were meant to and did protect women. “The law was one of many enacted by states in the wake of the Kermit Gosnell scandal, in which a physician who ran an abortion clinic in Philadelphia was convicted for the first degree murder of three infants who were born alive and for the manslaughter of a patient,” Justice Alito wrote.

Justice Breyer acknowledged that “Gosnell’s behavior was terribly wrong.”

“But,” he added, “there is no reason to believe that an extra layer of regulation would have affected that behavior.”

The clinics challenging the law said it has already caused about half of the state’s 41 abortion clinics to close. If the contested provisions had taken full effect, they said, the number of clinics would again be cut in half.

The remaining Texas clinics would have been clustered in four metropolitan areas: Austin, Dallas-Fort Worth, Houston and San Antonio. “None is located west or south of San Antonio, a vast geographic area that is larger than California,” a brief for the clinics said. An appeals court did allow a partial exemption for a clinic in McAllen, the brief added, but “imposed limitations on the clinic’s operational capacity that would severely restrict its ability to provide abortions.”

Justice Breyer, announcing the majority opinion in the hushed Supreme Court chamber, said that the requirements in the Texas statute “are not consistent with the constitutional standard set forth in Casey,” and were, therefore, both unconstitutional.

Justice Alito responded with an extended dissent from the bench, a sign of deep disagreement. “We are supposed to be a neutral court of law,” he said, outlining what he conceded were “dry and technical” points of legal doctrine he argued should have precluded the petitioners from presenting the challenge in the first place. “There is no justification for treating abortion cases differently from other cases.”

Julie Hirschfeld Davis contributed reporting.

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Supreme Court Strikes Down Texas Abortion Restrictions,
NYT, June 27, 2016,
http://www.nytimes.com/2016/06/28/us/
supreme-court-texas-abortion.html

Affirmative Action Survives, Again

 

JUNE 23, 2016

The New York Times

The Opinion Pages | Editorial

By THE EDITORIAL BOARD

Over the past four decades, the Supreme Court has repeatedly addressed the question of whether public universities may consider an applicant’s race in admissions decisions. Its answer, with some important caveats, has always been yes.

It was wise to reaffirm this principle on Thursday, ruling 4 to 3 in favor of an admissions process at the University of Texas at Austin that weighs race as one of many factors in filling some spots in its first-year class. The decision was the strongest reaffirmation of the constitutionality of a race-conscious approach in more than a decade, and should be the defining judgment on this issue.

The court has acknowledged over and over that universities have a compelling interest in achieving the social and educational benefits that flow from a racially and ethnically diverse student body. But that precedent has remained under constant attack. The current case was brought by Abigail Fisher, a white woman who was denied admission in 2008 and argued that the university violated the Constitution’s equal protection clause by discriminating against white applicants.

The University of Texas uses two separate methods to achieve greater diversity: First, it automatically offers roughly three-quarters of its spots to students who graduated in the top 10 percent of every high school in the state. (This helps increase diversity because so many Texas high schools are either overwhelmingly white or minority.) The remaining quarter is filled using a “holistic” process that considers various factors, including an applicant’s leadership qualities, talents, socioeconomic status and race.

Justice Anthony Kennedy, writing for the majority, rejected Ms. Fisher’s arguments and said, “Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”

But Justice Kennedy cautioned that a university’s goals “must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them,” and that officials must continue to monitor and change those policies if necessary.

(Only seven justices participated in the ruling. Justice Elena Kagan recused herself because of her prior involvement in the litigation as solicitor general; Justice Antonin Scalia, who heard oral arguments in the case in December, died in February.)

The court considered Texas’ holistic approach once before, in 2013, but declined then to rule on its constitutionality. Instead, it sent the case back to the federal appeals court to examine more closely the university’s rationale for considering race.

That type of examination is exactly what the university did, in providing data showing that race-neutral policies were inadequate in achieving a diverse student body, and that the holistic approach made a significant difference. In fact, as Justice Kennedy pointed out, the university has been adjusting its use of race in admissions for 20 years. It developed its current approach in direct response to a 2003 Supreme Court ruling upholding the same process at the University of Michigan law school.

Some justices continue to reject any consideration of race in college admissions. Justice Clarence Thomas dismissed the idea that students benefit from a racially diverse learning environment as a “faddish theory.” Justice Samuel Alito spent 50 pages — more than twice the length of the majority opinion — disputing every rationale offered by the university and its supporters. “This is affirmative action gone wild,” he wrote, and argued that the top 10 percent plan produced enough diversity on its own.

But that plan, as Justice Ruth Bader Ginsburg wrote in a dissent from the 2013 decision, is itself race conscious, since it relies on the existing and extreme segregation of Texas high schools. The holistic approach, on the other hand, considers race as a “factor of a factor of a factor of a factor.”

Some insist simplistically that America is already a colorblind society or, even more perversely, that ending race-conscious policies would lead the way to such a society. Fortunately, Justice Kennedy, who has long been a strong skeptic of affirmative-action programs, rejected that view. His vote in the Fisher case assures that universities will continue to have the right to shape their student bodies in a way that better reflects today’s America.

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A version of this editorial appears in print on June 24, 2016, on page A26 of the New York edition with the headline: The Court Decides, and Doesn’t: Affirmative Action Survives, Again.

Affirmative Action Survives, Again,
NYT, June 23, 2016,
http://www.nytimes.com/2016/06/24/
opinion/affirmative-action-survives-again.html

Supreme Court Tie

Blocks Obama Immigration Plan

 

JUNE 23, 2016

The New York Times

By ADAM LIPTAK

and MICHAEL D. SHEAR

WASHINGTON — The Supreme Court announced on Thursday that it had deadlocked in a case challenging President Obama’s immigration plan, effectively ending what Mr. Obama had hoped would become one of his central legacies. The program would have shielded as many as five million undocumented immigrants from deportation and allowed them to legally work in the United States.

The 4-4 tie, which left in place an appeals court ruling blocking the plan, amplified the contentious election-year debate over the nation’s immigration policy and presidential power.

When the Supreme Court agreed to hear the case in January, it seemed poised to issue a major ruling on presidential power. That did not materialize, but the court’s action, which established no precedent and included no reasoning, was nonetheless perhaps its most important statement this term.

The decision was just nine words long: “The judgment is affirmed by an equally divided court.”

But its consequences will be vast, said Walter Dellinger, who was acting solicitor general in the Clinton administration. “Seldom have the hopes of so many been crushed by so few words,” he said.

Speaking at the White House, Mr. Obama described the ruling as a deep disappointment for immigrants who would not be able to emerge from the threat of deportation for at least the balance of his term.

“Today’s decision is frustrating to those who seek to grow our economy and bring a rationality to our immigration system,” he said before heading to the West Coast for a two-day trip. “It is heartbreaking for the millions of immigrants who have made their lives here.”

The decision was one of two determined by tie votes Thursday — the other concerned Indian tribal courts — and one of four so far this term. The court is scheduled to issue its final three decisions of the term, including one on a restrictive Texas abortion law, on Monday.

Mr. Obama said the court’s immigration ruling was a stark reminder of the consequences of Republicans’ refusal to consider Judge Merrick B. Garland, the president’s nominee to fill the vacancy on the Supreme Court created by the death of Justice Antonin Scalia.

“If you keep on blocking judges from getting on the bench, then courts can’t issue decisions,” Mr. Obama said. “And what that means is then you are going to have the status quo frozen, and we are not able to make progress on some very important issues.”

The case, United States v. Texas, No. 15-674, concerned a 2014 executive action by the president to allow as many as five million unauthorized immigrants who were the parents of citizens or of lawful permanent residents to apply for a program that would spare them from deportation and provide them with work permits. The program was called Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA.

Mr. Obama has said he took the action after years of frustration with Republicans in Congress who had repeatedly refused to support bipartisan Senate legislation to update immigration laws. A coalition of 26 states, led by Texas, promptly challenged the plan, accusing the president of ignoring administrative procedures for changing rules and of abusing the power of his office by circumventing Congress.

“Today’s decision keeps in place what we have maintained from the very start: One person, even a president, cannot unilaterally change the law,” Ken Paxton, the Texas attorney general, said in a statement after the ruling. “This is a major setback to President Obama’s attempts to expand executive power, and a victory for those who believe in the separation of powers and the rule of law.”

The court did not disclose how the justices had voted, but they were almost certainly split along ideological lines. Administration officials had hoped that Chief Justice John G. Roberts Jr. would join the court’s four-member liberal wing to save the program.

The case hinged in part on whether Texas had suffered the sort of direct and concrete injury that gave it standing to sue. Texas said it had standing because it would be costly for the state to give driver’s licenses to immigrants affected by the federal policy.

Chief Justice Roberts is often skeptical of expansive standing arguments. But it seemed plain when the case was argued in April that he was satisfied that Texas had standing, paving the way for a deadlock.

Mr. Obama said the White House did not believe the terse ruling from the court had any effect on the president’s authority to act unilaterally. But he said the practical effect would be to freeze his efforts on behalf of immigrants until after the November election.

He also predicted that lawmakers would eventually act to overhaul the nation’s immigration system.

“Congress is not going to be able to ignore America forever,” he said. “It’s not a matter of if; it’s a matter of when. We get these spasms of politics around immigration and fear-mongering, and then our traditions and our history and our better impulses kick in.”

White House officials had repeatedly argued that presidents in both parties had used similar executive authority in applying the nation’s immigration laws. And they said Congress had granted federal law enforcement wide discretion over how those laws should be carried out.

But the court’s ruling may mean that the next president will again need to seek a congressional compromise to overhaul the nation’s immigration laws. And it left immigration activists deeply disappointed.

“This is personal,” Rocio Saenz, the executive vice president of the Service Employees International Union, said in a statement. “We will remain at the front lines, committed to defending the immigration initiatives and paving the path to lasting immigration reform.”

The lower court rulings in the case were provisional, and the litigation will now continue and may again reach the Supreme Court when it is back at full strength. In the meantime, it seems unlikely that the program will be revived.

In February 2015, Judge Andrew S. Hanen of Federal District Court in Brownsville, Tex., entered a preliminary injunction shutting down the program while the legal case proceeded. The government appealed, and a divided three-judge panel of the United States Court of Appeals for the Fifth Circuit in New Orleans affirmed the injunction.

In their Supreme Court briefs, the states acknowledged that the president had wide authority over immigration matters, telling the justices that “the executive does have enforcement discretion to forbear from removing aliens on an individual basis.” Their quarrel, they said, was with what they called a blanket grant of “lawful presence” to millions of immigrants, entitling them to various benefits.

In response, Solicitor General Donald B. Verrilli Jr. told the justices that this “lawful presence” was merely what had always followed from the executive branch’s decision not to deport someone for a given period of time.

“Deferred action does not provide these individuals with any lawful status under the immigration laws,” he said. “But it provides some measure of dignity and decent treatment.”

“It recognizes the damage that would be wreaked by tearing apart families,” Mr. Verrilli added, “and it allows individuals to leave the shadow economy and work on the books to provide for their families, thereby reducing exploitation and distortion in our labor markets.”

The states said they had suffered the sort of direct and concrete injury that gave them standing to sue.

Judge Jerry E. Smith, writing for the majority in the appeals court, focused on an injury said to have been suffered by Texas, which he said would have to spend millions of dollars to provide driver’s licenses to immigrants as a consequence of the federal program.

Mr. Verrilli told the justices that Texas’ injury was self-inflicted, a product of its decision to offer driver’s licenses for less than they cost to produce and to tie eligibility for them to federal standards.

Texas responded that being required to change its laws was itself the sort of harm that conferred standing. “Such a forced change in Texas law would impair Texas’ sovereign interest in ‘the power to create and enforce a legal code,’” the state’s lawyers wrote in a brief.

Judge Hanen grounded his injunction on the Obama administration’s failure to give notice and seek public comments on its new program. He found that notice and comment were required because the program gave blanket relief to entire categories of people, notwithstanding the administration’s assertion that it required case-by-case determinations about who was eligible for the program.

The appeals court affirmed that ruling and added a broader one. The program, it said, also exceeded Mr. Obama’s statutory authority.

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Follow Adam Liptak on Twitter @adamliptak.

A version of this article appears in print on June 24, 2016,
on page A1 of the New York edition with the headline:
Split Court Stifles Obama on Immigration.

Supreme Court Tie Blocks Obama Immigration Plan,
NYT, June 23, 2016,
http://www.nytimes.com/2016/06/24/us/
supreme-court-immigration-obama-dapa.html

Supreme Court Says Police

May Use Evidence Found

After Illegal Stops

JUNE 20, 2016

The New York Times

By ADAM LIPTAK

WASHINGTON — The Supreme Court ruled on Monday that evidence found by police officers after illegal stops may be used in court if the officers conducted their searches after learning that the defendants had outstanding arrest warrants.

Justice Clarence Thomas, writing for the majority in the 5-to-3 decision, said such searches do not violate the Fourth Amendment when the warrant is valid and unconnected to the conduct that prompted the stop.

Justice Thomas’s opinion drew a fiery dissent from Justice Sonia Sotomayor, who said that “it is no secret that people of color are disproportionate victims of this type of scrutiny.”

“This case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time,” she wrote. “It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.”

The case, Utah v. Strieff, No. 14-1373, arose from police surveillance of a house in South Salt Lake based on an anonymous tip of “narcotics activity” there. A police officer, Douglas Fackrell, stopped Edward Strieff after he had left the house based on what the state later conceded were insufficient grounds, making the stop unlawful.

Officer Fackrell then ran a check and discovered a warrant for a minor traffic violation. He arrested Mr. Strieff, searched him and found a baggie containing methamphetamines and drug paraphernalia. The question for the justices was whether the drugs must be suppressed given the unlawful stop or whether they could be used as evidence given the arrest warrant.

“Officer Fackrell was at most negligent,” Justice Thomas wrote, adding that “there is no evidence that Officer Fackrell’s illegal stop reflected flagrantly unlawful police misconduct.”

Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Stephen G. Breyer and Samuel A. Alito Jr. joined the majority opinion.

In a dissent that cited W. E. B. Du Bois, James Baldwin and Ta-Nehisi Coates, Justice Sotomayor said the court had vastly expanded police power.

“The court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights,” she wrote. “Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification and check it for outstanding traffic warrants — even if you are doing nothing wrong.

“If the officer discovers a warrant for a fine you forgot to pay,” she continued, “courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant.”

Justice Sotomayor added that many people were at risk. Federal and state databases show more than 7.8 million outstanding warrants, she wrote, “the vast majority of which appear to be for minor offenses.” There are, she added, 180,000 misdemeanor warrants in Utah. And according to the Justice Department, about 16,000 of the 21,000 residents of Ferguson, Mo., are subject to arrest warrants.

Justice Ruth Bader Ginsburg joined most of Justice Sotomayor’s dissent, along with all of a separate dissent from Justice Elena Kagan. But Justice Sotomayor reserved her most personal reflection for a part of her dissent in which she wrote only for herself, setting out in detail the dangers and indignities that often accompany police stops.

“For generations,” she wrote, “black and brown parents have given their children ‘the talk’ — instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger — all out of fear of how an officer with a gun will react to them.”

“We must not pretend that the countless people who are routinely targeted by police are ‘isolated,’” she wrote. “They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter, too, our justice system will continue to be anything but.”

Justin Driver, a law professor at the University of Chicago, said Justice Sotomayor’s dissent was remarkable. It is, he said, “the strongest indication we have yet that the Black Lives Matter movement has made a difference at the Supreme Court — at least with one justice.”

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A version of this article appears in print on June 21, 2016, on page A17 of the New York edition with the headline: Ruling on Illegal Stops Draws Scathing Dissent.

Supreme Court Says Police May Use Evidence Found After Illegal Stops,
NYT, June 20, 2016,
http://www.nytimes.com/2016/06/21/us/
supreme-court-says-police-may-use-evidence-found-after-illegal-stops.html

Supreme Court Rules in Capital Cases,

Overturning a Death Sentence

 

MAY 31, 2016

The New York Times

By ADAM LIPTAK

WASHINGTON — The Supreme Court on Tuesday took action in two death penalty cases, rejecting a broad constitutional challenge to capital punishment from Louisiana and reversing a death sentence from Arizona.

The moves were in keeping with the court’s general approach in this area. It has been open to cutting back on the availability of the death penalty but not inclined to test its constitutionality.

Justice Stephen G. Breyer, dissenting in Glossip v. Gross last year, urged his colleagues to consider the larger question. “Rather than try to patch up the death penalty’s legal wounds one at a time,” he wrote, “I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.”

The case from Louisiana asked the justices to consider that question, but the court turned down the appeal without comment. Justice Breyer dissented and, as in Glossip, only Justice Ruth Bader Ginsburg joined him.

The case concerned Lamondre Tucker, who was 18 in 2008 when he shot and killed his pregnant girlfriend. Echoing points Justice Breyer made in his Glossip dissent, Mr. Tucker’s lawyers said the death penalty violated the Eighth Amendment, which bans cruel and unusual punishment.

Mr. Tucker was sentenced to death in Caddo Parish, La., which his lawyers said “imposes more death sentences per capita than any other parish or county in the nation.”

That disparity was emblematic, they said, of a capital justice system in which death sentences are imposed arbitrarily in fairly few counties around the nation, with prosecutions warped by racial discrimination and politics.

Justice Breyer said the court should have heard the case, Tucker v. Louisiana, No. 15-946. Mr. Tucker, he suggested, barely qualified for the death penalty in the first place, as he was 18 at the time of the killing and had an I.Q. of 74. The Supreme Court has banned the execution of juvenile offenders and of the intellectually disabled.

“Tucker was sentenced to death in a Louisiana county (Caddo Parish) that imposes almost half the death sentences in Louisiana, even though it accounts for only 5 percent of that state’s population and 5 percent of its homicides,” Justice Breyer wrote, citing Mr. Tucker’s brief.

“Given these facts, Tucker may well have received the death penalty not because of the comparative egregiousness of his crime, but because of an arbitrary feature of his case, namely, geography,” Justice Breyer added. “One could reasonably believe that if Tucker had committed the same crime but been tried and sentenced just across the Red River in, say, Bossier Parish, he would not now be on death row.”

In the second case, Lynch v. Arizona, No. 15-8366, the court reversed a death sentence in an unsigned opinion, saying the jury had not been told an important fact: that the only alternative to a death sentence was life without the possibility of parole.

The case concerned Shawn P. Lynch, who was convicted of the 2001 kidnapping and killing of James Panzarella, whom he met at a bar in Scottsdale, Ariz. Prosecutors argued that the death penalty was warranted because Mr. Lynch posed a risk of future dangerousness. But they blocked defense lawyers from telling the jury that the only alternative sentence would have kept Mr. Lynch in prison for life.

On Tuesday, the Supreme Court ruled that a 1994 decision required the judge to tell the jury about the alternative or let defense lawyers do so. The unsigned opinion rejected the state’s argument that such statements were not required because executive clemency remained available and because the state Legislature may someday allow parole.

In dissent, Justice Clarence Thomas, joined by Justice Samuel A. Alito Jr., said the 1994 decision was wrong. Justice Thomas accused the majority of micromanaging state sentencing procedures and imposing “a magic-words requirement.”

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Follow Adam Liptak on Twitter at @adamliptak.

A version of this article appears in print on June 1, 2016,
on page A10 of the New York edition with the headline: Supreme Court Rules in Capital Cases, Overturning an Arizona Death Sentence.

Supreme Court Rules in Capital Cases, Overturning a Death Sentence,
NYT, May 31, 2016,
http://www.nytimes.com/2016/06/01/us/
supreme-court-rules-in-capital-cases-overturning-a-death-sentence.html

The Supreme Court

Rights a Racist Wrong

 

MAY 24, 2016

The New York Times

By THE EDITORIAL BOARD

The Opinion Pages | Editorial
 

In 1987, Timothy Tyrone Foster, an 18-year-old black man from Georgia, was convicted and sentenced to death for the murder of a 79-year-old white woman named Queen Madge White.

On Monday, the Supreme Court invalidated Mr. Foster’s conviction and sentence because prosecutors had struck every black prospective juror at his trial — a violation of his constitutional rights. The ruling sends the case back to the Georgia courts, where the state may choose to retry Mr. Foster.

This was clearly the correct result. The prosecutors in Mr. Foster’s case kept notes that served as a remarkably explicit road map of how to discriminate in jury selection. For example, they highlighted the names of black prospective jurors on one list with a “B” and, on another list, ranked them against one another, in case “it comes down to having to pick one of the black jurors.”

Those notes were locked away in prosecution files for nearly 20 years, until lawyers for Mr. Foster obtained them through a state open-records law. Before then, the prosecutors got away with lying about their motivations thanks to Georgia courts that looked the other way. Even after the notes were revealed, prosecutors continued to concoct far-fetched explanations for their behavior.

Chief Justice John Roberts Jr., writing for a 7-to-1 majority, was having none of it. He called the prosecutors’ race-neutral justifications “nonsense” that “reeks of afterthought.” He noted, for instance, that the prosecutors removed a black prospective juror for being too young, even though they did not strike eight white people who were about the same age or younger. They claimed another black man was unacceptable because his son had been convicted of “basically the same thing” as Mr. Foster, although the son’s crime was stealing hubcaps, not murder.

“The focus on race in the prosecution’s file,” Chief Justice Roberts wrote, “plainly demonstrates a concerted effort to keep black prospective jurors off the jury.” This in turn plainly violated a 1986 ruling barring the exclusion of people from juries because of race — a practice that “harms not only the accused whose life or liberty they are summoned to try” but also “public confidence in the fairness of our system of justice.”

Mr. Foster’s victory is an important reaffirmation of that principle, but it may not reach far beyond this case. Lawyers are rarely so overt about their efforts to racially engineer juries. They rely on the peremptory challenge, which allows them to exclude a prospective juror for no reason at all. And even if a racial motivation is suspected, it is very hard to prove, since courts will accept almost any race-neutral reason that a lawyer provides.

Mr. Foster’s prosecutors knew this bar was low, and jumped over it again and again, daring the courts to call them out. Until Monday, not one did.

Every weekday, get thought-provoking commentary from Op-Ed columnists, The Times editorial board and contributing writers from around the world.

Though it’s hard to understand how anyone could defend the prosecutors’ actions, Justice Clarence Thomas gave it his best shot. In a sour, contorted dissent, he bent over backward to give credence to the prosecutors’ bogus claims that race had nothing to do with their decisions. Justice Thomas has long been willing to stand alone on the court, but with each dissent like this he further removes himself from the mainstream of American law.

Meanwhile, blacks continue to be struck from juries more often than whites. There are ways to counteract this, such as reducing the number of peremptory strikes or increasing scrutiny of a lawyer’s reasons for using one. But as long as trial and appellate judges approach these cases as Justice Thomas does, lawyers will get away with an unacceptable and unconstitutional practice.

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A version of this editorial appears in print on May 25, 2016,
on page A20 of the New York edition with the headline:
The Supreme Court Rights a Racist Wrong.

The Supreme Court Rights a Racist Wrong,
NYT, May 24, 2016,
http://www.nytimes.com/2016/05/25/
opinion/the-supreme-court-rights-a-racist-wrong.html

Victory for Unions

as Supreme Court,

Scalia Gone, Ties 4-4

MARCH 29, 2016

The New York Times

By ADAM LIPTAK

WASHINGTON — The Supreme Court handed organized labor a major victory on Tuesday, deadlocking 4 to 4 in a case that had threatened to cripple the ability of public-sector unions to collect fees from workers who chose not to join and did not want to pay for the unions’ collective bargaining activities.

It was the starkest illustration yet of how the sudden death of Justice Antonin Scalia last month has blocked the power of the court’s four remaining conservatives to move the law to the right.

A ruling allowing workers to refuse to pay the fees would have been the culmination of a decades-long campaign by a group of prominent conservative foundations aimed at weakening unions that represent teachers and other public employees. Tuesday’s deadlock denied them that victory, but it set no precedent and left the door open for further challenges once the Supreme Court is back at full strength.

When the case was argued in January, the court’s conservative majority seemed ready to say that forcing public workers to support unions they had declined to join violates the First Amendment. Justice Scalia’s questions were consistently hostile to the unions.

His death changed the balance of power in this case, and most likely in many others. The clout of the court’s four-member liberal wing has increased significantly. Its members — Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — can create deadlocks, as they did Tuesday, and they can sometimes attract the vote of Justice Anthony M. Kennedy for a liberal result.

Should Senate Republicans relent and confirm Judge Merrick B. Garland as Justice Scalia’s replacement, the power of the court’s liberals might only grow.

Union officials said they were elated by Tuesday’s decision, but they remain wary of future efforts to diminish their effectiveness.

“We know the wealthy extremists who pushed this case want to limit the ability for workers to have a voice, curb voting rights and restrict opportunities for women and immigrants,” said Mary Kay Henry, the president of the Service Employees International Union.

The case was brought by the Center for Individual Rights, a libertarian group that pursued an unusual litigation strategy. Responding to signals from the Supreme Court’s more conservative justices, the group asked the lower courts to rule against its clients, 10 teachers and a Christian education group, so they could file an appeal in the Supreme Court as soon as possible.

Terence J. Pell, the group’s president, said he was disappointed with Tuesday’s tie vote.

“With the death of Justice Scalia, this outcome was not unexpected,” he said. “We believe this case is too significant to let a split decision stand.”

“Either compulsory dues are an acceptable exception to the First Amendment or they are not,” Mr. Pell said. “A full court needs to decide this question, and we expect this case will be reheard when a new justice is confirmed.”

Under California law, public employees who choose not to join unions must pay a “fair share service fee,” also known as an “agency fee,” typically equivalent to the dues members pay. The fees, the law says, are meant to pay for some of the costs of collective bargaining, including “the cost of lobbying activities.” More than 20 states have similar laws.

Government workers who are not members of unions have long been able to obtain refunds for the political activities of unions, like campaign spending. The case the court ruled on Tuesday, Friedrichs v. California Teachers Association, No. 14-915, asked whether such workers must continue to pay for any union activities, including negotiating for better wages and benefits. A majority of the justices had seemed inclined to say no.

Relying on a 1977 Supreme Court precedent, the United States Court of Appeals for the Ninth Circuit, in San Francisco, upheld the requirement that the objecting teachers pay fees. Tuesday’s announcement, saying only that “the judgment is affirmed by an equally divided court,” upheld that ruling and set no new precedent.

The unions defending the compulsory fees said the teachers’ First Amendment arguments were a ruse. Collective bargaining is different from spending on behalf of a candidate, the unions said. They said the plaintiffs were seeking to reap the benefits of such bargaining without paying their fair share of the cost.

Limiting the power of public unions has long been a goal of conservative groups, and they seemed very close to victory when the case was argued in January.

In 2014, the court stopped just short of overruling the foundational 1977 decision and declaring that government workers who choose not to join unions may not be forced to pay fees in lieu of dues. In the 1977 decision, Abood v. Detroit Board of Education, the Supreme Court made a distinction between two kinds of compelled payments.

Forcing nonmembers to pay for a union’s political activities violates the First Amendment, the court said. But it is constitutional, the court added, to require nonmembers to help pay for the union’s collective bargaining efforts to prevent freeloading and ensure “labor peace.”

Tuesday’s decision was the second deadlocked case since Justice Scalia died, and there will almost certainly be more by the end of the term in June. But there is no reason to think that ties will dominate the docket.

In recent years, the court has split 5 to 4 about a quarter of the time. In the term that ended last June, there were 19 such cases, and Justice Scalia was in the majority in just six of them.

“On eight-person courts the justices reach far fewer 4-4 decisions than we would expect,” said Lee Epstein, a law professor and political scientist at Washington University in St. Louis. “They seem to work hard to minimize them because they’re so inefficient. They can hold over cases, cast strategic votes to avoid a decision down the road that may be even worse ideologically, write narrowly and dump cases on procedural grounds.”

After Tuesday’s deadlock, some critics of public unions said they would turn to other forums.

“With a divided court, thousands of public servants around the nation must still financially assist a government union that they disagree with,” said Trey Kovacs, an analyst with the Competitive Enterprise Institute, a libertarian group. “Now it is up to state legislatures to provide public employees with the freedom to choose whether or not to pay for union representation.”

Union officials, too, were looking ahead. “The Supreme Court today rejected a political ploy by the wealthy corporate special interests backing this case,” said Eric C. Heins, the president of the California Teachers Association. “Now it’s time for senators to do their job and appoint a successor justice to the highest court in our land.”

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A version of this article appears in print on March 30, 2016, on page A1 of the New York edition with the headline: Justices’ 4-4 Tie Gives Unions Win in Labor Lawsuit.

Victory for Unions as Supreme Court, Scalia Gone, Ties 4-4,
NYT, March 29, 2016,
http://www.nytimes.com/2016/03/30/us/
politics/friedrichs-v-california-teachers-association-union-fees-supreme-court-ruling.html

Showdown on Abortion

at the Supreme Court

FEB. 27, 2016

The New York Times

SundayReview | Editorial

By THE EDITORIAL BOARD

The decades-long crusade to end legal abortion in America after Roe v. Wade has again reached the Supreme Court.

On Wednesday, the eight justices will hear a case challenging a 2013 Texas law that has already shut down more than half of the state’s 41 health clinics that perform abortions.

Since Roe was decided in 1973, there have been countless efforts by anti-abortion activists to enact state laws that restrict abortion rights, often in the guise of protecting women’s health. But few laws have gone as far as the Texas statute, which places so heavy a burden on hundreds of thousands of women across the state — particularly those in poorer rural areas — that it has effectively destroyed their constitutional right to an abortion.

Lawmakers claimed that the law, which requires abortion clinics to meet the strict standards of ambulatory surgical centers and their doctors to have admitting privileges at local hospitals, was necessary to protect women’s health. Everyone knows this is a lie. Even the law’s backers have openly admitted it. Immediately after the law, known as SB5, passed, David Dewhurst, Texas’ lieutenant governor at the time, posted on Twitter a map of Texas showing that most abortion clinics across the state would be forced to close. He wrote, “We fought to pass SB5 thru the Senate last night, & this is why!”

Texas’ law, like similar ones around the country, was written by anti-abortion activists with the sole purpose of shutting down clinics. Its two main requirements have nothing to do with protecting women’s health.

Admitting privileges are often hard for doctors to get for bureaucratic reasons, and they have no bearing on the care a woman receives. Surgical-center standards are prohibitively expensive to meet and medically unnecessary, since abortion is one of the safest of all medical procedures, with a complication rate of less than one-tenth of 1 percent. That is true whether an abortion is performed in an outpatient clinic or a doctor’s office, as the vast majority are, or in a hospital. Meanwhile, Texas law does not require these same staffing and equipment standards for clinics that perform procedures with far higher complication rates, like colonoscopies.

If anything, the law increases the risk to women’s health, since the hundreds of thousands of women without access to professional care are more likely to resort to dangerous methods to end their pregnancies.

In the 1992 case Planned Parenthood v. Casey, the Supreme Court struck down abortion restrictions that impose an “undue burden” on women. Such restrictions include “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.” There is no more apt a description than that for the Texas law.

Still, last June the United States Court of Appeals for the Fifth Circuit approved the law, reversing a district judge who struck it down, and ruling that “any conceivable rationale” for it was good enough. On Feb. 24, the Fifth Circuit blocked a ruling by a federal district judge striking down a similar Louisiana law that would force three of that state’s last four abortion clinics to close.

The outcome of the Texas case is now less clear with the death of Justice Antonin Scalia, who wanted to overturn Roe v. Wade and was a solid vote in favor of all restrictions on abortion. If the justices split 4 to 4 in the Texas case, it would leave the Fifth Circuit’s decision in place, meaning that the Texas and Louisiana laws would remain in effect and women in both states would suffer the consequences.

But Justice Anthony Kennedy, who was a co-author of the Casey decision, only has to look to the words of that opinion to overturn the appeals court ruling. He should see that both in effect and in intention, the Texas law demolishes the constitutional liberty that he affirmed in Casey.

While states may have an interest in protecting the fetus, the Casey ruling said, the means of furthering that interest “must be calculated to inform the woman’s free choice, not hinder it.” Laws like the Texas statute have nothing to do with women’s health or free choice. If the “undue burden” test serves any purpose, it must be to block such laws wherever they appear.

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A version of this editorial appears in print on February 28, 2016, on page SR8 of the New York edition with the headline: Showdown on Abortion at the Court.

Showdown on Abortion at the Supreme Court,
NYT, FEB. 27, 2016,
http://www.nytimes.com/2016/02/28/
opinion/sunday/showdown-on-abortion-at-the-supreme-court.html

Resetting

the Post-Scalia Supreme Court

FEB. 18, 2016

NYT

Linda Greenhouse

The Opinion Pages

Contributing Op-Ed Writer

In the days since Justice Antonin Scalia’s death, there has been plenty of talk about the substantial impact his absence will have on the Supreme Court’s docket. I’d like to shift the focus to the Roberts court itself.

Fate has handed the justices a chance to hit reset.

If that seems an uncharitable, even tasteless observation, so be it. I’ve become increasingly concerned, as my recent columns have suggested, that the conservative majority is permitting the court to become an agent of partisan warfare to an extent that threatens real damage to the institution. Justice Scalia’s outsize role on and off the bench contributed to that dangerous development to an outsize degree.

I’m not claiming that he was completely responsible. Given the Supreme Court’s place in American life, there is no way it can avoid getting singed by the polarizing politics of the day. Nor was Justice Scalia solely to blame for the court’s drop in public esteem as demonstrated by a Gallup Poll in September showing that more people disapprove of the Supreme Court (50 percent) than approve of it (45 percent). While this is a notable departure from the historic trend, other governmental bodies have fared far worse (Congress has a 16 percent approval rating), and the court is to some degree caught in the back draft of generalized public mistrust of government.

It’s a situation that nonetheless calls for concern and exquisite care. Chief Justice John G. Roberts Jr. appeared to reflect that concern, and not for the first time, when he spoke earlier this month at New England School of Law in Boston. Contrary to the impression created by highly partisan Senate confirmation hearings, he said, Supreme Court justices are not in pursuit of an agenda and “don’t work as Republicans or Democrats.”

Maybe not, but two weeks before the chief justice’s visit to Boston, the court, acting on its own motion, turned a statutory case into a major constitutional one when it expanded its review of President Obama’s deportation-deferral program to include the question of whether the president has violated his constitutional duty to “take care that the laws be faithfully executed.” And a few days after the Boston visit, the court took the astonishing step of blocking the administration’s major climate-change initiative before a lower court had even had a chance to review it.

The “take care” question mapped perfectly onto the dissent that Justice Scalia read from the bench in June 2012 when the court struck down portions of Arizona’s anti-immigrant statute. (Chief Justice Roberts was in the majority.) Justice Scalia took the occasion to excoriate the Obama administration for an earlier version of its deportation-deferral program — a policy that was not at issue in the Supreme Court case and had not even been announced when the case was argued.

“Are the sovereign states at the mercy of the federal executive’s refusal to enforce the nation’s immigration laws?” Justice Scalia demanded, in a public performance that was as inappropriate as it was attention getting.

The Feb. 9 order blocking the president’s Clean Power Plan was issued without explanation and over the dissents of the court’s four liberals. I don’t know whether Justice Scalia was the driving force behind this highly unusual intervention in an ongoing regulatory review. But clearly it couldn’t have happened without him. Neither could the court’s other recent destabilizing interventions, including the 5-to-4 decision in Shelby County v. Holder to gut the Voting Rights Act of 1965.

The voting rights decision was a pet project of Chief Justice Roberts, an opponent of the Voting Rights Act since his days as a young lawyer in the Reagan administration. But Justice Scalia was much more than just a passenger. His behavior during the oral argument gave a public face to the ugliness behind the attack on the foundational civil rights law, which both houses of Congress had reauthorized by overwhelming margins.

Addressing Solicitor General Donald B. Verrilli Jr. during the argument on Feb. 27, 2013, Justice Scalia referred to the 2006 reauthorization and observed:

“And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same. Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes. I don’t think there is anything to be gained by any senator to vote against continuation of this act. And I am fairly confident it will be re-enacted in perpetuity unless — unless a court can say it does not comport with the Constitution.”

A “phenomenon that is called perpetuation of racial entitlement”? “It’s been written about”? I must have missed that reading assignment.

Then, two months ago, Justice Scalia’s comment during the argument in the University of Texas affirmative-action case embraced the so-called mismatch theory beloved by opponents of affirmative action when he said that some minority students would benefit from “a less advanced school, a slower-track school where they do well.” I can only assume that somewhere out there is a tract that equates protection of the right to vote with perpetuation of racial entitlement.

His frequent parroting of right-wing talking points in recent years may have reflected the contraction of his intellectual universe. In an interview with the writer Jennifer Senior (now a New York Times book critic) in New York magazine in 2013, Justice Scalia said he got most of his news from the car radio and from skimming The Wall Street Journal and the conservative Washington Times. He said he stopped reading The Washington Post because it had become so “shrilly, shrilly liberal” that he “couldn’t handle it anymore.”

And while earlier in his Supreme Court tenure, he prided himself on hiring one politically liberal law clerk among his four clerks every year, he abandoned that practice at least a decade ago. In a recently completed (and as yet unpublished) study, Neal Devins, a law professor at William and Mary, and Lawrence Baum, a political scientist at Ohio State, calculated the percentage of each justice’s law clerks over the past 11 years who had previously clerked for a Democratic-appointed judge on a lower court. (This is a measure that scholars deem an acceptable proxy for the ideological orientation of a justice’s chambers.) Justice Ruth Bader Ginsburg ranked the highest, with 76.7 percent of her clerks having earlier clerked for Democratic-appointed judges. The figure for Chief Justice Roberts was 16.3 percent. Justice Scalia and Justice Clarence Thomas were tied for the lowest, at 2.3 percent each.

In their paper, “Split Definitive: How Party Polarization Turned the Supreme Court Into a Partisan Court,” the authors offer their observations about the elite social networks in which Supreme Court justices, no less than other power players in Washington, spend their lives. They note “a growing ideological divide among affluent, well-educated Democrats and Republicans,” with the result that “Democratic elites are more liberal than other Democrats; Republican elites are more conservative than other Republicans.” For the Supreme Court, they conclude, “justices on both the left and right are part of social networks that reinforce conservatism for Republican justices and liberalism for Democratic justices.”

These insights might help explain why someone as smart as Antonin Scalia seemed so un-self-conscious about his inflammatory rhetoric. He was simply giving voice to those he spent his time with. His world was one that reinforced and never challenged him.

About 10 years ago, I attended a gathering of Canadian judges and lawyers at Cambridge University. Justice Scalia gave his stump speech there about how his Constitution was not “living” but “dead,” with legitimate constitutional interpretation limited to the words and original understanding of the document’s authors. He may or may not have known that in Canada, constitutional interpretation starts from the premise that “the Constitution is a living tree.” In any event, his speech fell flat; rather than greeting his remarks with the appreciative chuckles and applause he usually received, the audience sat on its hands. I remember his disconcerted expression.

Justice Scalia received relatively few opinion assignments in major cases, either from Chief Justice Roberts or Chief Justice William H. Rehnquist, with whom he served for 19 years. The reason was obvious: He refused to compromise, a trait that put him at risk of losing a majority in close cases. I used to wonder why he didn’t value effectiveness over perfection, why he would not rather compromise than lose. But I came to realize that Justice Scalia wasn’t playing the inside game. No matter that he never persuaded a majority of his fellow conservatives on the court to sign up for his brand of originalism.

What mattered was his ability to invoke originalism as a mobilizing tool outside the court, in speeches and in dissenting opinions. The message was that courts have no business recognizing “new” rights. (Except, evidently, new rights of which Justice Scalia approved, such as an unconstrained right for corporations to spend money in politics.) The audience for his dissents, he told Ms. Senior in the New York magazine interview, was law students. The mission he set for himself was cultivating the next generation.

For a long time, he did a good job of addressing the public outside the court’s marble walls. In 2003, his dissenting opinion in the gay rights case Lawrence v. Texas warned that the court’s declaration of constitutional protection for same-sex relationships would lead to protection for same-sex marriage. State after state heeded the warning and enacted same-sex marriage bans.

Ten years later, when he dissented from the court’s overturning of the Defense of Marriage Act in United States v. Windsor, which found that married same-sex couples were entitled to federal benefits, he warned that the decision made the constitutional right to same-sex marriage inevitable. “No one should be fooled; it is just a matter of listening and waiting for the other shoe,” he wrote.

Within a matter of months, federal district judges around the country invoked Justice Scalia’s dissent in striking down same-sex marriage bans. The much less polemical dissent in Windsor by Chief Justice Roberts, describing the decision as a narrow one based on principles of federalism, went uncited.

Had Justice Scalia overreached? Lost his touch? Or had times changed so that not even the most mild-mannered dissent could have stemmed the tide? Hard to say. Still, people listened, just as they did last June when the court ruled for same-sex marriage in Obergefell v. Hodges and Justice Scalia wrote that before he would ever join such an opinion “I would hide my head in a bag.”

Since everyone who ever met Justice Scalia is telling Scalia stories, I’ll tell mine. The last conversation we had took place in the spring of 2013, on a Washington-bound Amtrak Acela. I noticed him sitting across the aisle from me, wearing headphones and working. He didn’t notice me, and I didn’t bother him. But when we stood to collect our things, we found ourselves face to face. “So, Linda,” he said, “what do you think of the new pope?”

This was such an unexpected conversation opener that I didn’t know what to say. Pope Francis had been chosen just a few days earlier. I was hardly qualified to discuss the first Jesuit pope with a Jesuit-trained Supreme Court justice. “I’m surprised they picked someone so old,” I finally managed.

“Well, he’s a transitional figure,” Justice Scalia said.

I was too nonplused to ask him what he meant: transition from what to what? (I can only imagine how the deeply traditional, Latin Mass-attending Justice Scalia came to regard Pope Francis as time went by.) Our train pulled into Union Station and the moment passed.

Antonin Scalia was, as everyone has noted, a unique figure on the Supreme court. Will he prove to have been a transitional one as well? Will originalism, having served its purpose, now leave the stage?

For the court and the country, this is an important moment in every possible respect. As Justice Scalia’s colleagues gather later this week for the ceremonial marking of his passing, they will be taking stock of a life. Some of them, perhaps, will also be taking stock of the court, where it has been and where it goes now.

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A version of this op-ed appears in print on February 18, 2016, on page A25 of the New York edition with the headline: Resetting the Post-Scalia Supreme Court.

Resetting the Post-Scalia Supreme Court,
FEB. 18, 2016, NYT,
http://www.nytimes.com/2016/02/18/
opinion/resetting-the-post-scalia-supreme-court.html

Antonin Scalia,

Justice on the Supreme Court,

Dies at 79

 

FEB. 13, 2016

The New York Times

By ADAM LIPTAK

Justice Antonin Scalia, whose transformative legal theories, vivid writing and outsize personality made him a leader of a conservative intellectual renaissance in his three decades on the Supreme Court, was found dead on Saturday at a resort in West Texas. He was 79.

“He was an extraordinary individual and jurist, admired and treasured by his colleagues,” Chief Justice John G. Roberts Jr. said in a statement confirming Justice Scalia’s death. “His passing is a great loss to the Court and the country he so loyally served.”

The cause of death was not immediately released. A spokeswoman for the U.S. Marshals Service, which sent personnel to the scene, said there was nothing to indicate the death was the result of anything other than natural causes.

Justice Scalia began his service on the court as an outsider known for caustic dissents that alienated even potential allies. But his theories, initially viewed as idiosyncratic, gradually took hold, and not only on the right and not only in the courts.

He was, Judge Richard A. Posner wrote in The New Republic in 2011, “the most influential justice of the last quarter century.” Justice Scalia was a champion of originalism, the theory of constitutional interpretation that seeks to apply the understanding of those who drafted and ratified the Constitution. In Justice Scalia’s hands, originalism generally led to outcomes that pleased political conservatives, but not always. His approach was helpful to criminal defendants in cases involving sentencing and the cross-examination of witnesses.

Justice Scalia also disdained the use of legislative history — statements from members of Congress about the meaning and purposes of laws — in the judicial interpretation of statutes. He railed against vague laws that did not give potential defendants fair warning of what conduct was criminal. He preferred bright-line rules to legal balancing tests, and he was sharply critical of Supreme Court opinions that did not provide lower courts and litigants with clear guidance.

All of these views took shape in dissents. Over time, they came to influence and in many cases dominate the debate at the Supreme Court, in lower courts, among lawyers and in the legal academy.

By the time he wrote his most important majority opinion, finding that the Second Amendment protects an individual right to bear arms, even the dissenters were engaged in trying to determine the original meaning of the Constitution, the approach he had championed.

That 2008 decision, District of Columbia v. Heller, also illustrated a second point: Justice Scalia in his later years was willing to bend a little to attract votes from his colleagues. In Heller, the price of commanding a majority appeared to be including a passage limiting the practical impact of the decision.

With the retirement of Justice John Paul Stevens in 2010, Justice Scalia became the longest serving member of the current court. By then, Justice Scalia was routinely writing for the majority in the major cases, including ones on the First Amendment, class actions and arbitration.

He was an exceptional stylist who labored over his opinions and took pleasure in finding precisely the right word or phrase. In dissent, he took no prisoners. The author of a majority opinion could be confident that a Scalia dissent would not overlook any shortcomings.

Justice Scalia wrote for a broader audience than most of his colleagues. His opinions were read by lawyers and civilians for pleasure and instruction.

The tenure of the conservative justice spans almost three decades, and includes a legacy of sharply written opinions.

At oral argument, Justice Scalia took professorial delight in sparring with the advocates before him. He seemed to play to the crowd in the courtroom, which rewarded his jokes with generous laughter.

Justice Scalia’s sometimes withering questioning helped transform what had been a sleepy bench when he arrived into one that Chief Justice Roberts has said has become too active, with the justices interrupting the lawyers and each other.

Some of Justice Scalia’s recent comments from the bench were raw and provocative. In an affirmative action case in December, he said that some minority students may be better off at “a less advanced school, a slower-track school where they do well.”

“I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible,” he said, describing — some said distorting — an argument in a supporting brief about the harm that can be caused to students with inferior academic credentials by admitting them to colleges where they do not thrive.

Justice Scalia was a man of varied tastes, with a fondness for poker, opera and hunting. His friends called him Nino, and they said he enjoyed nothing more than a good joke at his own expense.

He seldom agreed with Justice Ruth Bader Ginsburg on the important questions that reached the court, but the two for years celebrated New Year’s Eve together. Not long after Justice Elena Kagan, another liberal, joined the court, Justice Scalia took her skeet shooting.

Antonin Gregory Scalia was born on March 11, 1936, in Trenton, to Salvatore Scalia and the former Catherine Panaro. He was their only child and was showered with attention from his parents and their siblings, none of whom had children of their own.

Justice Scalia and his wife, the former Maureen McCarthy, had nine children, the upshot of what he called Vatican roulette. “We were both devout Catholics,” Justice Scalia told Joan Biskupic for her 2009 biography, “American Original.” “And being a devout Catholic means you have children when God gives them to you, and you raise them.”

He said his large family influenced his legal philosophy.

“Parents know that children will accept quite readily all sorts of arbitrary substantive dispositions — no television in the afternoon, or no television in the evening, or even no television at all,” he said at a Harvard lecture in 1989. “But try to let one brother or sister watch television when the others do not, and you will feel the fury of the fundamental sense of justice unleashed.”

Young Antonin was an exceptional student, graduating as valedictorian from Xavier High School in Lower Manhattan, first in his class at Georgetown and magna cum laude at Harvard Law School.

He practiced law for six years in Cleveland before accepting a position teaching law at the University of Virginia in 1967. Four years later, he entered government service, first as general counsel of the Office of Telecommunications Policy and then as chairman of the Administrative Conference of the United States, an executive branch agency that advises federal regulators. Both positions drew on and expanded his expertise in administrative law, a topic that would interest him throughout his career.

In 1974, President Richard M. Nixon nominated him to be assistant attorney general in charge of the Office of Legal Counsel, an elite unit of the Justice Department that advises the executive branch on the law. He was confirmed by the Senate on August 22, 1974, not long after Mr. Nixon resigned.

In 1977, Mr. Scalia returned to the legal academy, now joining the law faculty at the University of Chicago. He also served as editor of Regulation magazine, published by the American Enterprise Institute.

After Ronald Reagan was elected president in 1980, Mr. Scalia was interviewed for a job he coveted, solicitor general of the United States, the lawyer who represents the federal government in the Supreme Court. He lost out to Rex E. Lee, and it stung. “I was bitterly disappointed,” Justice Scalia told Ms. Biskupic. “I never forgot it.”

He was offered a seat on the federal appeals court in Chicago. But he turned it down in the hope of being nominated instead to the United States Court of Appeals for the District of Columbia Circuit, whose docket, location and prestige appealed to him. The court was also widely viewed as a steppingstone to the Supreme Court.

The first opening on the D.C. Circuit in the Reagan years went to another prominent conservative law professor, Robert H. Bork. But the second one, in 1982, went to Mr. Scalia.

He served for four years, issuing opinions favoring executive power, skeptical of claims of employment discrimination and hostile to the press. The opinions, which were forceful and sometimes funny, attracted the attention of the White House.

He appeared to enjoy intellectual give-and-take from the bench, with his colleagues and in his chambers. On the appeals court and in his early years on the Supreme Court, he would hire one liberal law clerk each year to keep discussions lively.

“He made it a point of telling me that I was his token liberal,” said E. Joshua Rosenkranz, who served as a law clerk for Judge Scalia in 1986, his last year on the appeals court. “To his credit, I’m sure it was largely because he wanted to be sure he always heard the arguments against the positions he was taking.”

Unanimous Confirmation

In 1986, after Chief Justice Warren Burger announced his intention to retire, Mr. Reagan nominated Judge Scalia to the Supreme Court. Though his conservative views were well known, he was confirmed by the Senate by a vote of 98 to 0. He may have benefited from the fact that the liberal opposition was focused on the nomination of Justice William H. Rehnquist, who was already on the court, to succeed Chief Justice Burger.

Judge Scalia seemed to enjoy parrying with the senators at his confirmation hearing. When Senator Howard M. Metzenbaum, Democrat of Ohio, recalled losing to Judge Scalia in a tennis match, he responded that “it was a case of my integrity overcoming my judgment.”

The lopsided vote for Justice Scalia also reflected a different era, one in which presidents were thought to have wide latitude in naming judges. That era seemed to come to an end in 1987, with the defeat of the nomination of Justice Scalia’s former colleague on the D.C. Circuit, Judge Bork.

In 1993, at the confirmation hearing for Justice Ginsburg, Senator Joseph R. Biden Jr., who was then chairman of the Senate Judiciary Committee, said “the vote that I most regret of all 15,000 votes I have cast as a senator” was “to confirm Judge Scalia” — “because he was so effective.”

Three days before the court handed the presidency to Mr. Bush in December 2000, in Bush v. Gore, the court shut down the recount of votes in Florida in an unsigned opinion over the dissents of the four more liberal justices. Justice Scalia felt compelled to respond in a concurrence.

“The counting of votes that are of questionable legality does in my view threaten irreparable harm to” Mr. Bush “and to the country, by casting a cloud upon what he claims to be the legitimacy of his election,” Justice Scalia wrote. He would later say privately that his brief concurrence doomed his chances of being named chief justice.

He was often asked about the Bush v. Gore decision at public appearances. His stock response: “Get over it.”

The centerpiece of Justice Scalia’s judicial philosophy was his commitment to the doctrine of originalism, which sought to interpret the Constitution as it was understood at the time of its adoption. That made him uncomfortable with some of the Supreme Court’s most important precedents.

“We have now determined,” he said in remarks in Philadelphia in 2004, “that liberties exist under the federal Constitution — the right to abortion, the right to homosexual sodomy — which were so little rooted in the traditions of the American people that they were criminal for 200 years.”

He added that his colleagues may soon discover a right to assisted suicide between the lines of the text of the Constitution.

“We’re not ready to announce that right,” he said, more than a little sarcastically. “Check back with us.”

Justice Scalia said that some of the court’s leading decisions could not be justified under the original understanding of the Constitution. The court was wrong in Gideon v. Wainwright in 1963, Justice Scalia said, to require the government to provide lawyers to poor people accused of serious crimes. It was wrong in New York Times v. Sullivan in 1964, he said, to say the First Amendment requires libel plaintiffs to meet heightened standards.

Justice Scalia also appeared to have reservations about Brown v. Board of Education, which struck down segregation in public schools as a violation of the 14th Amendment’s guarantee of equal protection. Brown, decided in 1954, is widely considered the towering achievement of the court led by Chief Justice Earl Warren.

But for originalists, the Brown decision is problematic. The weight of the historical evidence is that the people who drafted, proposed and ratified the 14th Amendment from 1866 to 1868 did not believe themselves to be doing away with segregated schools.

In remarks at the University of Arizona in 2009, Justice Scalia suggested that Brown reached the right result as a matter of policy but was not required by the Constitution. He added that the decision did not refute his theory.

“Don’t make up your mind on this significant question between originalism and playing it by ear on the basis of whether, now and then, the latter approach might give you a result you like,” Justice Scalia said.

“Hitler developed a wonderful automobile,” he went on. “What does that prove? I’ll stipulate that you can reach some results you like with the other system. But that’s not the test. The test is over the long run does it require the society to adhere to those principles contained in the Constitution or does it lead to a society that is essentially governed by nine justices’ version of what equal protection ought to mean?”

In other settings, Justice Scalia took pains to say that he would not follow his theory wherever it would take him. He was, he said, “a faint-hearted originalist.”

“I am a textualist,” he said. “I am an originalist. I am not a nut.”

Critics seized on the concession, saying it undid the very qualities that made originalism appealing as a historically grounded theory that constrained judges otherwise apt to follow their policy preferences.

“If following a theory consistently would make you a nut, isn’t that a problem with the theory?” David A. Strauss asked in his 2010 book, “The Living Constitution.”

There was certainly a more committed originalist on the court, Justice Clarence Thomas. Unlike Justice Thomas, Justice Scalia, especially in his later years, was willing to compromise at the expense of theoretical purity.

A 2010 decision, McDonald v. Chicago, illustrates the point. The question in the case was whether the Second Amendment applied not only to federal gun control laws, a point the court established in 2008, but also to state and local laws. The answer was not much in doubt, as the five-justice majority in the 2008 case, District of Columbia v. Heller, was still on the court.

What was in doubt was how the court would use the 14th Amendment to apply — or “incorporate,” in the legal jargon — the Second Amendment to the states. Other provisions in the Bill of Rights had been applied by means of the 14th Amendment’s due process clause.

But many judges and scholars, including Justice Scalia, had never found that methodology intellectually satisfactory. “Due process” after all, would seem to protect only procedures and not substance. The very name given to the methodology — substantive due process — sounds like an oxymoron.

Originalists hoped the court would use the McDonald case to repudiate substantive due process and instead rely on another provision of the 14th Amendment, one that says “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” There is evidence that the authors of the clause specifically wanted it to apply to allowing freed slaves to have guns to defend themselves.

Justice Scalia would have none of it. “What you argue,’’ he told a lawyer challenging a Chicago gun law, “is the darling of the professoriate, for sure, but it’s also contrary to 140 years of our jurisprudence.”

He told the lawyer to focus on winning his case rather than pressing a new constitutional theory. “Why do you want to undertake that burden,” Justice Scalia asked, “instead of just arguing substantive due process, which as much as I think it’s wrong, even I have acquiesced in it?”

The decision was 5 to 4. The justices in the majority agreed about the result but not how to get there. Justice Scalia accepted the substantive due process rationale, with misgivings. Justice Thomas, in a separate opinion, relied on the privileges-or-immunities rationale that had been pressed by originalists.

Still, Justice Scalia’s fidelity to originalism frequently caused him to take legal positions almost certainly at odds with his policy preferences. He voted in 1989 to strike down a law making it a crime to burn an American flag.

He said his fidelity to the Constitution overrode his sympathies. “I don’t like scruffy, bearded, sandal-wearing people who go around burning the United States flag,” he said in 2000.

Transforming Criminal Law

Justice Scalia also helped transform aspects of the criminal law, often in ways that helped people accused of crimes. Here, too, his understanding of the Sixth Amendment, which sets out defendants’ rights in criminal prosecutions, may have been in tension with his policy preferences.

“The Sixth Amendment is a meaningful presence in American courtrooms today in large part because of Justice Scalia,” said Jeffrey L. Fisher, a law professor at Stanford. “He followed his understanding of the original intent of the Sixth Amendment, even when it made prosecutions harder and less efficient. He said it was necessary to keep the people free.”

The right to trial by an impartial jury, Justice Scalia said, means that juries must find beyond reasonable doubt all facts that give rise to punishment. He made the point in a 1998 dissent, and it ripened into the majority view in Apprendi v. New Jersey in 2000, which struck down a New Jersey hate crime law. In 2004, Justice Scalia relied on the Apprendi decision in writing the majority opinion in Blakely v. Washington, which struck down the sentencing system of Washington State for giving judges too large a role. He later voted with the majority to strike down the federal sentencing system on the same grounds.

“It’s not because I’m in love with the jury necessarily,” Justice Scalia told Ms. Biskupic. “It’s because I’m in love with the Constitution.”

Justice Scalia also reinvigorated the clause of the Sixth Amendment that guarantees a criminal defendant the right “to be confronted with the witnesses against him.”

Here, too, he first expressed his views in dissent. Later, in a 2004 decision, Crawford v. Washington, he wrote for the majority that defendants have the right to live testimony at trial from the witnesses against them, even if the accusations could be presented in other forms.

“Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with a jury trial because the defendant is obviously guilty,” Justice Scalia wrote. “That is not what the Sixth Amendment prescribes.”

Writing for the majority in a 2009 decision that barred the introduction at trial of crime lab reports without testimony from the analysts involved in their preparation, Justice Scalia said the issue was one of constitutional principle.

“The confrontation clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination,” he wrote. “The confrontation clause — like those other constitutional provisions — is binding, and we may not disregard it at our convenience.

Justice Scalia’s opinions were also helpful to criminal defendants charged under vague laws. In 2009, he objected to the court’s decision not to hear an appeal concerning a federal law that made it a crime “to deprive another of the intangible right of honest services.” The law was so vague, he wrote, that “it would seemingly cover a salaried employee’s phoning in sick to go to a ballgame.”

The Supreme Court soon agreed to hear three separate cases on the law and substantially cut back its scope.

When Justice Scalia joined the court, congressional committee reports and similar “legislative history” were routinely used as aids in determining the meanings of federal statutes.

In a campaign that he maintained throughout his tenure on the court, Justice Scalia insisted that such use of legislative history was illegitimate. Reports and floor statements were not the law, he said; the words of the law itself were the law.

The campaign was largely successful. Advocates and other justices rely on legislative history sparingly these days.

Justice Scalia was also dismissive of unhelpful Supreme Court opinions. Concurring in a 2010 privacy decision that gave lower courts only vague guidance, he wrote: “The court’s implication that where electronic privacy is concerned we should decide less than we otherwise would (that is, less than the principle of law necessary to resolve the case and guide private action) — or that we should hedge our bets by concocting case-specific standards or issuing opaque opinions — is in my view indefensible. The-times-they-are-a-changin’ is a feeble excuse for disregard of duty.”

His colleagues did not always welcome his writing style, which could verge on the insulting. Dissenting in a 2002 decision prohibiting the execution of the mentally retarded, he wrote, “seldom has an opinion of this court rested so obviously upon nothing but the personal views of its members.” An argument made by Justice Sandra Day O’Connor, he wrote in a 1989 abortion case, “cannot be taken seriously.”

In a 2011 dissent, Justice Scalia called Justice Sonia Sotomayor’s account of the facts of a case in her majority opinion “so transparently false that professing to believe it demeans this institution.”

Dissenting in June from the court’s decision establishing a right to same-sex marriage, Justice Scalia mocked the soaring language of Justice Anthony M. Kennedy’s majority opinion, saying it was “couched in a style that is as pretentious as its content is egotistic.”

He was not shy about making dire predictions. About a 2008 decision giving people held at Guantánamo Bay the right to challenge their detentions: “It will almost certainly cause more Americans to be killed.” About a 2011 decision ordering California to ease prison overcrowding: It affirmed “the most radical injunction issued by a court in our nation’s history” and was itself “a judicial travesty.”

A Public Life

Citing long judicial tradition, Justice Scalia occasionally spoke about his desire to stay out of the public eye. It is not clear that he meant it, and he was certainly not always successful.

In 2004, for instance, he went on a duck-hunting trip with Dick Cheney, who was then vice president and a litigant in a case before the court over whether Mr. Cheney would have to reveal who had appeared before his energy task force. When the trip came to light, Justice Scalia issued a 21-page defense of the trip and refused to disqualify himself from the case.

“While the political branches can perhaps survive the constant baseless allegations of impropriety that have become the staple of Washington reportage, this court cannot,” he wrote. “The people must have confidence in the integrity of the justices, and that cannot exist in a system that assumes them to be corruptible by the slightest friendship or favor, and in an atmosphere where the press will be eager to find foot-faults.”

Justice Scalia later joined the seven-justice majority in declining to force Mr. Cheney to disclose secret documents from an energy task force.

He did step aside from a case concerning the Pledge of Allegiance in 2003 after saying in public that the federal appeals court in San Francisco had decided the case incorrectly.

A gregarious man, Justice Scalia accepted many speaking and teaching engagements from both conservative and liberal groups. He was occasionally criticized for his choices.

In 2007, for instance, Justice Scalia spoke on international law at a dinner in Palm Springs, Calif., organized by Charles G. Koch, a conservative activist. Justice Scalia’s expenses, a court spokeswoman said, were paid for by the Federalist Society, a conservative legal group.

In 2011, he spoke at a forum organized by the Congressional Tea Party Caucus at the invitation of Representative Michele Bachmann, Republican of Minnesota. The session was attended by members of both parties; Justice Scalia’s subject was the separation of powers.

Justice Scalia did not make it easy for journalists to cover his public appearances and generally did not allow them to be broadcast. For years, he did not allow his remarks to be taped even by print reporters seeking to ensure the accuracy of their notes.

He changed that policy in 2004 after a federal marshal ordered two reporters to erase recordings of his remarks at a high school in Hattiesburg, Miss. Justice Scalia apologized to the reporters, saying the marshal had not been following his instructions.

“I abhor as much as any American the prospect of a law enforcement officer’s seizing a reporter’s notes or recording,” he wrote to one of the reporters, Antoinette Konz of The Hattiesburg American.

In 2006, Justice Scalia responded to a reporter’s question after attending a Red Mass at the Cathedral of the Holy Cross in Boston with a chin flick that some interpreted to be an obscene gesture. The reporter had wanted to know whether Justice Scalia had taken “a lot of flak for publicly celebrating” his religious beliefs.

In a letter to The Boston Herald, Justice Scalia explained that the gesture was Sicilian in origin and meant only, “I couldn’t care less. It’s no business of yours. Count me out.”

He often made clear that he had little use for faculty-lounge orthodoxies.

In 2003, for instance, dissenting from a decision striking down a Texas law that made gay sex a crime, Justice Scalia bemoaned the influence of elite culture on the law.

“Today’s opinion,” he wrote, “is the product of a court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”

He predicted, too, that the decision, Lawrence v. Texas, had laid the foundation for the recognition of a constitutional right to same-sex marriage.

Justice Scalia insisted that his religious beliefs played no role in his jurisprudence, and he was deeply offended by contrary suggestions.

In 2007, Geoffrey R. Stone, a law professor at the University of Chicago, where he was a colleague of Justice Scalia, made what he called “a painfully awkward observation” in The Chicago Tribune after the Supreme Court upheld the federal Partial-Birth Abortion Ban Act in Gonzales v. Carhart.

“All five justices in the majority in Gonzales are Roman Catholic,” Professor Stone wrote. “The four justices who are not all followed clear and settled precedent.”

Justice Scalia was furious, telling Ms. Biskupic that “it got me so mad that I will not appear at the University of Chicago until he is no longer on the faculty.”

Withdrawing from a debate was not typical of Justice Scalia, who usually welcomed discussion with enthusiasm and confidence. Standing up for one’s opinions, he said in a 2010 opinion, is a mark of laudable “civil courage.”

Indeed, Justice Scalia’s appetite for the sort of discussion and debate he enjoyed as a law professor was not sated by the brisk conferences the justices held after oral arguments. Under Chief Justice Rehnquist and to a lesser extent under Chief Justice Roberts, they can consist of little more than a tally of votes.

“I don’t like that,’’ Justice Scalia said after a speech at George Washington University in 1988. “Maybe it’s just because I’m new. Maybe it’s because I’m an ex-academic. Maybe it’s because I’m right.”

In a C-Span interview in 2009, Justice Scalia reflected on his role and legacy, sketching out a modest conception of the role of a Supreme Court justice.

“We don’t sit here to make the law, to decide who ought to win,” Justice Scalia said. “We decide who wins under the law that the people have adopted. And very often, if you’re a good judge, you don’t really like the result you’re reaching.”

Eric Lichtblau contributed reporting.

A version of this article appears in print on February 14, 2016, on page A1 of the New York edition with the headline: Justice Scalia, Who Led Court’s Conservative Renaissance, Dies At 79.

Antonin Scalia, Justice on the Supreme Court, Dies at 79,
NYT, FEB. 13, 2016,
http://www.nytimes.com/2016/02/14/us/antonin-scalia-death.html

The Court Blocks Efforts

to Slow Climate Change

FEB. 11, 2016

The New York Times

By THE EDITORIAL BOARD

The Opinion Pages | Editorial

The Supreme Court’s extraordinary decision on Tuesday to temporarily block the Obama administration’s effort to combat global warming by regulating emissions from power plants was deeply disturbing on two fronts.

It raised serious questions about America’s ability to deliver on Mr. Obama’s pledge in Paris in December to sharply reduce carbon emissions, and, inevitably, about its willingness to take a leadership role on the issue.

And with all the Republican-appointed justices lining up in a 5-to-4 vote to halt the regulation before a federal appeals court could rule on it, the court also reinforced the belief among many Americans that the court is knee-deep in the partisan politics it claims to stand above. While the court’s action was not a ruling on the merits of the case, it will delay efforts to comply with the regulation and sends an ominous signal that Mr. Obama’s initiative, known as the Clean Power Plan, could ultimately be overturned.

The Clean Power Plan, announced by the Environmental Protection Agency last August, requires states to make major cuts in greenhouse gas emissions from their electricity producers, which chiefly use older coal-fired power plants, over the next few years. These plants produce more carbon emissions than any other source, and cutting them is the backbone of Mr. Obama’s larger goal of reducing greenhouse gas emissions over all by at least 26 percent below 2005 levels by 2025.

The rule is based on the Clean Air Act — which, as the court has already made clear in multiple cases, gives the federal government broad authority to regulate a range of pollutants, including carbon emissions from power plants. Mr. Obama is using that authority here. And while the plan sets out aggressive state-by-state goals, it is carefully designed to give states the time and flexibility to meet them. It’s inevitable that some, perhaps many, older coal-fired plants will close; but states can also covert to cleaner-burning natural gas, build renewable-energy sources, like wind and solar, or enter into regional “cap and trade” programs that allow them to buy and sell permits to pollute.

Efforts like these are broadly popular: A clear majority of Americans, including many Republicans, agree that global warming is or will soon be a serious threat. Nearly two-thirds said they would support domestic policies limiting carbon emissions from power plants.

But flexibility, a generous time frame for compliance and public opinion were not enough to sway 27 states that sued to stop what they call a “power grab” by the federal government and Mr. Obama’s “war on coal.” Many of these states depend heavily on coal-fired plants for their power and many are run by Republican governors, who either willfully disbelieve well-established climate science or find it politically impossible to take steps necessary to reduce emissions. They also refuse to recognize that, rule or no rule, the nation’s energy landscape is already changing, with coal-fired power plants gradually but inexorably succumbing to cheaper natural gas and the emergence of renewable energy sources.

The justices could easily have waited. Last month, a unanimous panel of the federal appeals court in Washington, D.C., sided with the administration and refused to block the Clean Power Plan from taking effect. It set an expedited briefing schedule in order to resolve the case well before any significant action is required from the states. Normally, the Supreme Court allows this process to play out. But time and again, this court has shown itself to be all too eager to upset longstanding practice or legal precedent.

Chief Justice John Roberts Jr. often complains that the court is unfairly viewed as just another political branch. He said so again in an interview just last week, arguing that the nomination process creates the impression that justices are little more than party loyalists. “When you have a sharply political, divisive hearing process, it increases the danger that whoever comes out of it will be viewed in those terms,” he said. But, he insisted, “We don’t work as Democrats or Republicans.”

If the court wants to be perceived as acting in a judicial capacity, and not as an arm of the conservatives, it has a funny way of showing it.

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A version of this editorial appears in print on February 11, 2016, on page A30 of the New York edition with the headline: The Court Enters the Climate Wars.

The Court Blocks Efforts to Slow Climate Change,
NYT, FEB. 11, 2016,
http://www.nytimes.com/2016/02/11/
opinion/the-court-blocks-efforts-to-slow-climate-change.html

The Supreme Court Rules

for Common Sense in Electricity Case

JAN. 27, 2016

The New York Times

By THE EDITORIAL BOARD

The Supreme Court earlier this week upheld a federal regulation that encourages factories, shopping malls and other users of electricity to reduce their consumption during periods of high demand, like hot summer afternoons. The well-reasoned decision will save consumers money and improve the reliability of the electricity grid.

By a 6-to-2 majority, the court ruled in favor of the Federal Energy Regulatory Commission in a case brought by a group representing power plants. In 2011, the commission issued a rule applying to the wholesale markets that operate in many parts of the country in which electricity production and distribution are divided into separate businesses. In those markets, which are operated by nonprofit entities, power producers like Exelon sell electricity and utilities like Con Edison buy it to distribute energy to homes and businesses.

Under the rule, the operators of the wholesale markets are required to pay users of electricity like big stores and factories if they voluntarily agree to cut consumption during peak periods. The commission also created a formula to determine how much those users should be paid. This approach is known as “demand response” and it can reduce the need for power plants to generate more supply on short notice, which is expensive and can strain power lines and cause blackouts.

The Electric Power Supply Association, which represents power producers, challenged the rules because its members stand to earn less money if there is an incentive for businesses to use less energy when it is most expensive. The group argued that the commission had authority only to regulate interstate wholesale electricity markets, but that its rule also affected retail prices, which Congress has said should be regulated by states. The Court of Appeals for the District of Columbia ruled in favor of the power plants in 2014.

The Supreme Court overturned that decision on Monday, rightly concluding that the regulation applies only to wholesale markets. State officials still regulate retail rates and also have the authority to stop electricity users from participating in demand-response programs.

Of course, any rule that influences wholesale prices will have an impact on retail prices. In some parts of the country, industry officials and experts say demand response has saved consumers billions of dollars a year. It would be absurd to use the link between wholesale and retail markets as a reason to strike down a federal rule that helps conserve energy and strengthens the electricity grid.

In this decision, like in previous rulings upholding pollution regulations issued by the Environmental Protection Agency, the Supreme Court is clearly saying that regulators have broad discretion to enforce federal laws. Their job is not to protect the profits of a segment of an industry. Regulators ought to do what is in the public interest, which is exactly what the energy commission’s rule does.

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A version of this editorial appears in print on January 28, 2016, on page A28 of the New York edition with the headline: A Good Ruling on Electricity Markets.

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NYT, JAN 27., 2016,
http://www.nytimes.com/2016/01/28/
opinion/the-supreme-court-rules-for-common-sense-in-electricity-case.html

The Supreme Court,

the Nativists and Immigrants

JAN. 19, 2016

The New York Times

By THE EDITORIAL BOARD

As soon as 26 states took it upon themselves to sue President Obama over the sensible, humane executive actions he took in late 2014 to protect millions of undocumented immigrants from deportation, it was inevitable that the lawsuit would land on the Supreme Court’s doorstep.

On Tuesday morning, the justices announced that they would hear the case, which means a decision will most likely come down by the end of June. The states should never have been allowed standing to sue in the first place, and their substantive claims are groundless.

There are more than 11 million undocumented immigrants living in the United States. No one, besides Donald Trump, believes the nation has the resources, or the will, to deport them all. The clearest solution is to focus on removing those who pose an actual threat to public safety while deferring action on most of the rest and helping them “come out of the shadows.” In 2012, the Obama administration allowed young immigrants who were brought here as children to be given work permits and be exempted from deportation, a program that has worked well. In November 2014, the president announced a plan to offer work permits and a three-year reprieve from deportation to as many as five million undocumented parents of American citizens or permanent residents, provided they had no criminal record and had lived in the country at least five years.

Getting hardworking people who have deep roots in their communities out of the shadows isn’t a new issue. In a 1980 presidential debate, George Bush decried the harsh efforts to marginalize undocumented immigrants. “We’re creating a whole society of really honorable, decent, family-loving people that are in violation of the law,” he said. Mr. Obama, along with other reality-based politicians on both the left and the right, understands this, but congressional Republicans have refused to pass any meaningful immigration reform.

Mr. Obama’s pragmatic deportation exemption programs are well within his legal and constitutional authority. The Supreme Court explicitly stated in 2012 that the federal government had “broad, undoubted power over the subject of immigration and the status of aliens” under the Constitution.

But Texas and other states — mostly conservative ones along the southern border — immediately cried foul, and steered a lawsuit to Judge Andrew Hanen of Federal District Court in Brownsville, Tex. Last February, Judge Hanen ruled in the states’ favor and blocked the president’s action. In November, a panel of the Court of Appeals for the Fifth Circuit voted 2 to 1 to affirm that ruling.

In their brief to the Supreme Court, the states concede that the president has discretion to enforce immigration laws in individual cases. But they argue he does not have power to alter the legal status of entire classes of people.

This mischaracterizes the president’s actions. Presidents of both parties have long used their authority to enforce immigration laws selectively, so as to be “efficient, rational and humane,” as a group of former immigration and Homeland Security officials wrote in a brief to the court. For example, both the Reagan and first Bush administrations provided relief from deportation to spouses and children of those eligible for legalization — a class of people whom Congress had expressly declined to protect in the 1986 immigration reform law.

Apart from the fallacious argument on the president’s powers, the states have no standing to sue. Texas claims that it has that right simply because it thinks the president’s orders would harm its economy. If the court were to accept this kind of claim, it would mean that any time a state or city opposed a federal action, it could drag that political dispute into the courts.

As Judge Carolyn King noted in her dissent in the Fifth Circuit’s ruling, this argument “appears to allow limitless state intrusion into exclusively federal matters — effectively enabling the states, through the courts, to second-guess federal policy decisions.”

Congress should have passed comprehensive immigration reform years ago, rather than, say, threatening to impeach the president when he took on the issue. Mr. Obama is wholly within his authority to make wise use of limited enforcement resources. The Supreme Court has already recognized this fact; now it needs to reiterate it.

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A version of this editorial appears in print on January 20, 2016, on page A24 of the New York edition with the headline: The Justices and the Nativists.

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NYT, JAN. 19, 2016,
http://www.nytimes.com/2016/01/20/
opinion/the-supreme-court-the-nativists-and-immigrants.html

The Death Penalty Endgame

JAN. 16, 2016

The New York Times

By THE EDITORIAL BOARD

How does the death penalty in America end?

For decades that has been an abstract question. Now there may be an answer in the case of Shonda Walter, a 36-year-old black woman on Pennsylvania’s death row. On Friday, the Supreme Court met to discuss whether to hear a petition from Ms. Walter, who is asking the justices to rule that in all cases, including hers, the death penalty violates the Eighth Amendment’s ban on cruel and unusual punishments.

Ever since 1976, when the court allowed executions to resume after a four-year moratorium, the abolition movement has avoided bringing a broad constitutional challenge against the practice, believing that it would not succeed. In that time, 1,423 people have been put to death.

Yet there is no question that the national trend is moving away from capital punishment. Since the late 1990s, almost every year has seen fewer executions, fewer new death sentences and fewer states involved in the repugnant business of killing their citizens.

In 2015, there were 28 executions and 49 new death sentences, the lowest numbers in decades. Seven states have abandoned the practice entirely since 2004, for a total of 19 that no longer have the death penalty. Many others have not executed anyone for years. And only three states — Texas, Georgia and Missouri — were responsible for almost all of last year’s executions.

A majority of Americans still support capital punishment, but the percentage favoring it has dropped from around 80 percent in the 1990s to about 60 percent now. When polls offer a choice between death and life without parole, people roughly split evenly.

In the past 14 years alone, the Supreme Court has barred the execution of several categories of people: minors, the intellectually disabled, and those convicted of a crime other than murder. In that last case, decided in 2008, Justice Anthony Kennedy wrote for the court, “When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.”

Taken together, these signs have led some abolitionists to conclude that the conditions for ending capital punishment entirely are now as favorable as they might ever be. That argument got a major boost last June, when Justice Stephen Breyer, in a long dissent from a 5-to-4 ruling that allowed Oklahoma to proceed with its inhumane lethal-injection drug protocol, suggested he would be open to a case challenging the constitutionality of the death penalty itself.

In his dissent, which was joined by Justice Ruth Bader Ginsburg, Justice Breyer explained in detail how the death penalty was unreliable, arbitrary and racially discriminatory. He said it was no longer sufficient simply “to patch up the death penalty’s legal wounds one at a time,” because the practice as a whole “most likely” violates the Eighth Amendment.

Shonda Walter’s case is the first to take up Justice Breyer’s challenge. Ms. Walter was convicted of murdering an 83-year-old man named James Sementelli. Her appointed lawyers put on no defense and offered no argument that might have spared her from a death sentence. Pennsylvania appeals courts agreed that she had inexcusably bad representation, but they still upheld her conviction and sentence. Since Ms. Walter does not fit the special categories of defendants who are shielded from the death penalty, her appeal is based on the claim that all executions violate the Constitution.

The justices may not grant Ms. Walter’s petition (others are also expected to be filed in the coming weeks), but they can no longer ignore the clear movement of history. They already have all the evidence they need to join the rest of the civilized world and end the death penalty once and for all.

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A version of this editorial appears in print on January 17, 2016, on page SR10 of the New York edition with the headline: The Death Penalty Endgame.

The Death Penalty Endgame,
NYT,
JAN. 16, 2016,
http://www.nytimes.com/2016/01/17/
opinion/sunday/the-death-penalty-endgame.html