Tuesday, June 27, 2017

Court Restores Trump's Travel Ban as Term Ends

      The Supreme Court ended a strangely incomplete term in dramatic fashion on Monday [June 26] by allowing President Trump's travel ban to take effect despite a string of lower court decisions blocking the controversial executive order.
      In a term with no true blockbusters, the court's decision to substantially narrow injunctions against what Trump described as a "watered-down" ban on travel from six predominantly Muslim countries amounted to a veritable bombshell at the end of the court's final sitting for the term.
      Chief Justice John G. Roberts Jr. ended the business part of the half-hour session by announcing that the court had agreed to hear the government's appeal of two decisions blocking Trump's executive order. The court, he explained, had also voted to stay the injunctions issued by the Fourth U.S. Circuit Court Appeals in a Maryland case and by the Ninth U.S. Circuit Court of Appeals in a suit originally brought by the states of Hawaii and Washington.
      The unsigned, 13-page opinion handed out in the Supreme Court's pressroom as Roberts spoke described the injunctions in Trump v. International Refugee Assistance Project and Trump v. Hawaii as overly broad and unmindful of the government's "interest in preserving national security." As revived by the court on an interim basis, Trump's EO-2 (technically, Executive Order 13780) will bar visas for foreign travelers from Iran, Libya, Somalia, Sudan, Syria, and Yemen unless the traveler has "a bona fide relationship with a person or entity in the United States."
      As examples, the unsigned opinion cited relatives of U.S. citizens, students admitted to U.S. schools, or workers with accepted offers of employment. In a dissenting opinion for three conservatives, Justice Clarence Thomas said he would have allowed the executive order to take effect as written and warned that the exceptions would prove to be "unworkable." Justices Samuel A. Alito Jr. and Neil M. Gorsuch joined his opinion.
      The majority opinion was apparently joined by Roberts, Justice Anthony M. Kennedy and the court's liberal justices: Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan. The actions on the applications for the stay and the government's petitions for certiorari were taken on the basis of written briefs without oral argument. Surprisingly, none of the Democratic-appointed liberal justices objected to lifting the injunctions issued by the Fourth Circuit on a 10-3 vote [May 25] and unanimously by a three-judge Ninth Circuit panel [May 15].
      Trump issued a somewhat formal, 114-word statement calling the court's action "a clear victory for our national security." But Omar Jadwat, director of the American Civil Liberties Union's Immigrants’ Rights Project and lead lawyer in the Maryland case, welcomed the court's decision to hear arguments on the ban in the fall following the earlier rulings against it. "The Supreme Court now has a chance to permanently strike it down,” Jadwat said.
      In a term with a modestly liberal cast to several decisions, the conservative bloc appeared to be refortified and somewhat ascendant as the justices prepared for their summer recess. Roberts delivered a resounding 7-2 victory for political and religious conservatives in the term's most closely watched case by easing a provision in Missouri state constitution barring government funds to churches or other religious institutions.
      The case arose in the unlikely context of a state program providing grants to non-profit entities to buy recycled automobile tires to rubberize playground surfaces in the interest of safety. Trinity Lutheran Church in the university town of Columbia applied for a grant for its church-school playground and scored well, but the state's Department of Natural Resources cited the state constitutional provision in rejecting the application.
      Roberts's majority opinion in Trinity Lutheran Church v. Comer found the church's disqualification to amount to religious discrimination in violation of the First Amendment's clause guaranteeing "free exercise of religion." He likened the government's action at one point to faith-based "persecution." Three justices joined Roberts's opinion in full: Kennedy, Alito, and Kagan. Thomas and Gorsuch joined all but a single footnote that limited the decision to "playground resurfacing" without ruling on "religious uses of funding." Breyer also wrote a separate opinion concurring in the judgment on somewhat narrower grounds.
      Sotomayor emphasized a dissenting opinion nearly twice as long as Roberts's by reading substantial portions from the bench. Sotomayor called the decision a "radical" break from historical tradition by holding — "for the first time" — "that the Constitution requires the government to provide public funds directly to a church." She warned that the ruling casts doubt on constitutional provisions akin to Missouri's in 30 states. Ginsburg joined her opinion.
      The case was one of 13 argued before a nine-justice court in April after Gorsuch's swearing in on April 10 on the strength of his 54-45 Senate confirmation. The court issued two other decisions from the April calendar on Monday, with conservatives prevailing in each by 5-4 votes. Thomas's opinion in Davila v. Davis barred death row inmates from challenging their sentences on the basis of ineffective assistance by lawyers in post-conviction proceedings. Kennedy's opinion in California Public Employees' Retirement System v. ANZ Securities refused to allow the big public pension system extra time for a securities-fraud lawsuit after having dropped out of a class action suit to litigate the case on its own.
      The liberal bloc had prevailed with Kennedy's help in some earlier five-vote decisions. Kennedy's 5-3 opinion in Peña-Rodriguez v. Colorado allowed criminal defendants to challenge convictions based on evidence of racist comments in the jury room. Ginsburg wrote a 5-3 decision in Moore v. Texas that instructed the state to update the standards for finding defendants ineligible for the death penalty on the basis of intellectual disability. Roberts gave the liberal bloc a fifth vote in the decision in Bank of America v. City of Miami to allow the city to sue banks under the Fair Housing Act for predatory loans in minority neighborhoods. And Thomas, oddly, provided the pivotal vote in the 5-3 decision in Cooper v. Harris to overturn a Republican-crafted redistricting plan as an improper racial gerrymander because it packed more minorities into legislative districts than needed to comply with federal law.
      Some other closely watched cases transcended the prevalent ideological lines. In a pair of free speech victories, the court unanimously struck down a federal law prohibiting registration of racially disparaging trademarks (Matal v. Tam) and a North Carolina law prohibiting convicted sexual offenders from using social media (Packingham v. North Carolina). And early in the term the court was unanimous in setting aside the $400 million judgment that Apple had won in a patent infringement suit against Samsung, its Korean rival in the smartphone wars (Samsung Electronics Co., Ltd. v. Apple Inc.).
      Court watchers had been waiting on Monday for decisions in three cases argued in December, January, and February. The court issued a limited ruling in Hernández v. Mesa instructing the federal appeals court for Texas to reconsider a suit by the parents of a Mexican teenager killed in a cross-border shooting by a U.S. Border Patrol Agent. In two other cases, the court scheduled rearguments in the next term--presumably, because the eight justices were evenly divided in the two immigration-related cases. Gorsuch is thus likely to have the decisive votes in Jennings v. Rodriguez, a case concerning rules for detention of aliens, and Sessions v. Dimaya, a case concerning use of state felony convictions as a basis for deportation.
      The court's final decision day came on a milestone date for LGBT rights advocates. The court's marriage-equality decision in Obergefell v. Hodges was issued on the same date in 2015; the rulings to strike down the Defense of Marriage Act and state anti-sodomy laws also both came on June 26, in 2013 and 2003 respectively. The court took no note of the anniversaries, but it did issue an unsigned, summary 6-3 decision in Pavan v. Smith to require the state of Arkansas to list a lesbian wife along with a child's biological mother on the child's birth certificate. Gorsuch wrote a dissent, joined by Thomas and Alito, arguing the issue warranted full briefing and oral argument.
      In all, the court issued a record low number of signed decisions in argued cases,  only 61, and nine other unsigned or per curiam opinions, including the interim ruling in Trump; the unsigned ruling in the argued case, Hernández; and six others, including Pavan, issued without oral argument. Among argued cases, 33 were unanimous — or an abnormally high 53 percent.
      In win-loss compilations, business interests prevailed over workers, consumers, or regulators in a majority of cases divided along those lines. That number included Gorsuch's only decision for the term: a 9-0 ruling in Henson v. Santander Consumer USA to somewhat narrow the federal Fair Debt Collection Practices Act. In criminal law cases, defendants or prison inmates won 11 decisions, the government 10. But the federal government won an important 8-0 victory in a closely watched case, Salman v. United States, that somewhat broadened insider-trading law.
      Along with the two cases restored to the calendar for reargument, the court is also carrying over three cases granted early enough for arguments in the current term but postponed — presumably because of fears of an inconclusive 4-4 split. Along with the travel ban case and five more cases granted on Tuesday [June 27], the court now has 28 cases teed up for arguments when the new term begins on Oct. 2, the traditional first Monday in October. That number includes two cases added on Monday: Masterpiece Cakeshop v. Colorado Civil Rights Commission, a Colorado bakery's effort to set aside a state civil rights sanction for refusing to serve a same-sex couple's wedding; and Digital Realty Trust, Inc. v. Somers, a test of the whistleblower provision in the Dodd-Frank financial industry reform law.

Sunday, June 25, 2017

High Court's Free Pass for Constitutional Wrongs

      Justice delayed is justice denied, according to the familiar legal maxim. But worse is for justice still to be denied even after the law's protracted delay. That was the message the Supreme Court gave last week [June 19] to the hundreds of innocent Arab and Muslim immigrants rounded up more than 15 years ago in a post-9/11 frenzy and held for months without charge in prison conditions usually reserved only for the worst of the worst.
      For 15 years, some of these "persons of interest," none of them ever found to have terrorism connections, have fought in federal court to hold the ranking officials responsible for these policies accountable under the Constitution. But the court that proudly promises "equal justice under law" decided instead to give a free pass to former Attorney General John Ashcroft, former FBI director Robert Mueller, and former Immigration and Naturalization Service Commissioner James Ziglar.
      The plaintiffs in this still unfinished litigation, represented since 2002 by lawyers from the Center for Constitutional Rights in New York City, asked for money damages from the three federal officials and the warden and associate warden of the federal prison where they were held. As authority, the lawyers relied on a decades-old Supreme Court precedent allowing damage suits against federal law enforcement agents for violations of constitutional rights.
      In blocking the suit against Ashcroft, Mueller, and Ziglar, a bare 4-2 majority of the shorthanded court has given federal officials a national-security get-out-of-litigation-free card. When the nation's security is at stake, Justice Anthony M. Kennedy wrote for the court in Ziglar v. Abbasi, federal officials cannot be second-guessing their decisions based on fears of being held financially responsible for violating individuals' constitutional rights. The ruling leaves prison warden Dennis Hasty's potential liability to be reconsidered on remand.
      In dissent, Justice Stephen G. Breyer protested that legal remedies against federal officials may be especially needed when they claim to be acting in times of emergency in the interest of national security. "[T]here may well be a particular need for Bivens remedies," Breyer wrote, referencing the court's 1971 decision, "when security-related Government actions are at issue." Justice Ruth Bader Ginsburg joined Breyer's dissent, but liberal justices Sonia Sotomayor and Elena Kagan had to recuse themselves because of prior involvement with the case respectively as judge on the Second Circuit and U.S. solicitor general.
      The seminal decision in Bivens v. Six Unknown Federal Narcotics Agents (1971) filled a gaping hole in U.S. law. Back at the time of the Reconstruction, Congress passed a law providing that state or local officials could be held liable for violating an individual's constitutional or legal rights "under color of [law]." Written against the backdrop of the defiance of federal officials by southern states, the Civil Rights Act of 1871 included no provision for comparable suits against federal officials for violating individual rights.
      In Bivens, the Supreme Court's 6-3 majority ruled that federal cops, just like state or local cops, could be held liable in federal court for violating an individual's constitutional rights — specifically in the case, for a warrantless search of James Biven's home. "That damages may be obtained for injuries consequent upon a violation of the Fourth Amendment by federal officials should hardly seem a surprising proposition," Justice William J. Brennan Jr. wrote for the majority.
      Whether surprising or not, Bivens is now in jurisprudential disfavor, as Kennedy explained in the new decision. The court has followed the Bivens' "implied damages remedy" approach in only two subsequent cases, Kennedy noted, and refused in several others. The court in
Davis v. Passman (1979) allowed a Fifth Amendment equal-protection suit against a sitting congressman by the female administrative assistant he fired after deciding he had to have a man in the post. A year later, the court in Carlson v. Green (1980) allowed the mother of a deceased federal prisoner to sue federal prison officials under the Eighth Amendment's Cruel and Unusual Punishments Clause for leaving her son's asthma untreated with tragically fatal results.      The plaintiffs' allegations in what was originally styled as Turkmen v. Ashcroft invoked all three of the Bill of Rights amendments cited in the Bivens trio of cases. For starters, they claimed unreasonable seizures in violation of the Fourth Amendment. They also claimed that they were subjected to severe conditions in prison — sleep deprivation, close confinement, and so on —  because of their religion or national origin in violation of the Fifth Amendment's equal protection requirement. The prison conditions, including unwarranted strip searches and verbal and physical abuse, were alleged to be Eighth Amendment violations.
      All of those well-pleaded allegations left Kennedy and his conservative colleagues, Chief Justice John G. Roberts Jr. and associate justices Clarence Thomas and Samuel A. Alito Jr., unmoved. "National-security policy is the prerogative of the Congress and President," Kennedy wrote, not he added for the courts. Breyer countered by pointing to the court's historically wrong decision in Korematsu v. United States (1944) to uphold the wartime internment of thousands of Japanese Americans.
      Four decades later, Congress apologized and provided $20,000 apiece in compensation to the wrongly interned Japanese Americans. For the victims of the post-9/11 dragnet, the Supreme Court offers nothing but Kennedy's caveat that the opinion should not be read to condone the "tragic" treatment that they received. Breyer's apt retort: the court's holding, he wrote, may "diminish[ ]  the compensatory remedy constitutional tort law now offers to harmed individuals."

Sunday, June 18, 2017

In First Opinion, Gorsuch 'Too Cute by Half'?

      The Supreme Court's rookie justice Neil Gorsuch has written his first opinion since taking the bench and the reviews are mostly good. "A superb opinion," gushed legal writing expert Ross Guberman hours after Gorsuch handed down his opinion in a little noticed consumer protection case, Henson v. Santander Consumer USA [June 12]. But hold the applause. On close examination, the opinion is structurally flawed, legally simplistic, and unfortunate on policy grounds.
      News coverage emphasized the new justice's use of alliteration to open a close grammatical dissection of one sentence in a 40-year-old federal law. The federal Fair Debt Collection Practices Act was aimed, Gorsuch tells the reader in his opening paragraph, at such "wayward collection practices" as "disruptive dinnertime calls" and "downright deceit."
      Guberman, who formerly taught legal writing at Yale Law School and now provides paid writing instruction to law firms, courts, and others, gave Gorsuch the newly created 2017 Judicial Alliteration Award for this and a second alliterative phrasing later in the opinion. Steven Mazie, the American Supreme Court correspondent for the British newsmagazine The Economist, mimicked Gorsuch with a tweet. "Gorsuch goes gaga for alliteration in opening line of 1st #SCOTUS op," Mazie tweeted.,
      The National Law Journal's Tony Mauro interpreted Mazie's tweet in his write-up of Gorsuch's opinion as "warm praise." Not so, Mazie now says. "Too cute by half," he told me. Guberman had noted Gorsuch's "breezy" and "jocular" style when the nomination was pending in the Senate. But some detractors in Gorsuch's home state of Colorado are said to have viewed his stylistic flourishes with something like mild disapproval.
      Apart from that issue, Gorsuch departed more significantly in his debut opinion from the established format for Supreme Court majority opinions. Invariably in recent memory, majority opinions open with a short overview of the case followed by Roman numeral-marked sections. Gorsuch's opinion, quite short at barely 10 pages in length, has no such guideposts.
      Michael Gerhardt, an experienced court watcher as law professor at the University of North Carolina, says the use of numbered sections helps both the justices and the legal community. Without that structure, Gerhardt explains, "People would have to work a little harder to follow the reasoning and maybe count the votes." The structure also "makes it easier for justices to specify which sections they join or don't  join," he adds.
      Gorsuch's departure from the customary organization of Supreme Court decisions went unremarked on until a tweet by this writer last week. But a review of the initial majority opinions by Gorsuch's eight colleagues shows that all of them adopted the numbered-section format in their maiden opinions­ — even in decisions that were short and unanimous, just like Gorsuch's debut. (Credit Adam Feldman of Empirical SCOTUS, here, with listing and linking those opinions.)
      Among the current nine, Chief Justice John G. Roberts Jr. and the junior justice Elena Kagan appear to be competing for the title of "best writer" on the Court. In their initial opinions, however, Roberts and Kagan both played it straight: nothing at all breezy apart from Roberts's citation in Martin v. Franklin Capital Corp. (2005) of "no less an authority" than Chief Justice John Marshall. A quick reading of the initial opinions by the six others also finds nothing comparable to Gorsuch's maiden effort to add some writing flair in aid of accessibility.
      Gorsuch's opinion also confirms to some extent the confirmation-fight accusations from Democrats and progressive groups that he favors business interests over consumers or workers. The plaintiffs in the case had accused Santander of engaging in the same kinds of "wayward collection practices" that Congress had in mind when it passed the debt collector law in 1977..
      The specifics of their complaints are missing from Gorsuch's opinion. Instead, he examined in grammar-lesson style the question of whether Santander, which bought the plaintiffs' defaulted car loans from CitiBank's auto financing arm, met the statutory definition of "debt collector." The law's definition: anyone who "regularly collects or attempts to collect . . . debts owed or due . . . another." Santander, Gorsuch reasoned, was collecting debts for itself, not for "another."
      Among eight federal courts of appeals to consider the question, five had ruled that a debt purchaser such as Santander was indeed a "debt collector." In adopting the narrower reading of the law, Gorsuch followed the approach of his dissent in the infamous Frozen Truck Driver case. In that case, he narrowly read a federal trucker safety provision as inapplicable to the discharged driver's decision to leave his inoperable rig on the roadside and drive in subzero temperatures to a heated service station.
      As in that earlier case, Gorsuch turned a close question of statutory construction into a civics lesson, this time with eight other justices concurring. The advent of the debt purchasing industry was a changed circumstance since 1977, Gorsuch acknowledged. But he refused to consider whether Congress would have intended to include them as debt collectors under the law. "It is never our job to rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done had it faced a question that . . . it never faced," he wrote.
      For conservatives, this kind of obtuseness counts as respect for the Constitution's separation of powers. But others may rightly ask whether the more faithful reading of arguably ambiguous statutory text would seek to apply the evident congressional intent that the law itself reflects.

Saturday, June 10, 2017

Trump's Offenses Far Worse Than 'Obstruction'

      President Trump is unlikely to be indicted and even less likely to be impeached for obstruction of justice for hoping that FBI director James Comey could go easy on Trump's friend and good guy, the fired national security adviser Lt. Gen. Michael Flynn. To be sure, Comey's account of the Feb. 14 Oval Office conversation with Trump, combined with the conspiratorial trappings of the talk and Trump's later firing of Comey, make out an indictable case that Trump "corruptly" sought to impede a pending federal "proceeding."
      Parsing Trump's words that carefully, however, is off-point by a country mile, somewhat akin to checking Al Capone's tax returns to see whether the bootlegger-mobster had run afoul of federal law. Trump's "high crimes and misdemeanors" are far worse than anything spelled out in 18 U.S.C. §1505, according to panelists at the American Constitutional Society's annual convention in Washington on Friday [June 9].
      Trump's actions in office and before are not merely "unconstitutional," according to Duke law professor Neil Siegel, but worse: "anti-constitutional." Siegel and fellow panelists in the progressive group's featured program listed the many ways in which Trump as candidate and now as president has stomped on and ground into the dirt unwritten constitutional norms that are essential to U.S. democracy. "We have a president who doesn't believe in democracy," Stanford law professor Pamela Karlan remarked.
      Karlan started her bill of particulars with Trump's threat during the campaign to jail his opponent, Hillary Clinton, if elected. As a second pre-election offense, Karlan recalled Trump's infamous reply that he would accept the results of the election only if he won. As post-election offenses, Karlan listed Trump's repeated unsubstantiated claims actually to have won the popular vote because of more than 3 million votes illegally cast for his opponent. And then, in pursuit of the nonexistent evidence, the president created a commission stacked with voting rights opponents aimed at making it harder, not easier, to cast ballots in the ultimate hallmark of a working democracy.
      Worst of all of his offenses, according to Slate's legal affairs columnist Dahlia Lithwick, is the Trumpian ontology of alternative facts. "What has been so fundamentally dismantled is the norm of truth," Lithwick remarked. In this view, Trump's assault on the media and his assault on the courts are part of a common strategy of seeking to delegitimize independent institutions capable of challenging Trumpian alternative facts, like the size of the Inauguration Day crowd or the content and purpose of the Muslim travel ban.
      None of these offenses will be found in title 18 of the U.S. Code, but the Framers appear to have been thinking in broad rather than legalistic terms in providing for impeachment of federal officials, including the president. In Federalist Nos. 65 and 66, Jay and Hamilton refer to "corruption" and "treachery" as grounds for impeachment, all-encompassing terms that might equally be rendered as "malfeasance" in office. "If you have enough of that," Seigel said of Trump's norm-breaking conduct, "maybe it's grounds for impeachment."
      The definition of an impeachable offense depends not on an academic debate about the Framers' intentions but on the political will of the House of Representatives. With a Republican majority dependent on the good will of the Republican base, the current House is unlikely to consider impeachment — not unless Trump's Mendoza-line approval ratings seriously jeopardize the members' own election chances.
      With impeachment off the table for now, indictment has a natural appeal to the #NotMyPresident crowd, but it is likely no more than a pipe dream. For starters, many legal scholars and experts believe that impeachment, not criminal prosecution, is the sole remedy against presidential misconduct. Oddly, the argument depends on an unwritten constitutional norm. ''The Framers implicitly immunized a sitting president from ordinary criminal prosecution,'' the Yale law professor Akhil Reed Amar remarked recently to the New York Times's Adam Liptak.
      Harvard's Alan Dershowitz has been making a separate argument specifically against an obstruction charge. As president, Trump has the power to direct the executive branch, Dershowitz argues, including the power to call off a law enforcement investigation or to fire a noncompliant FBI director. By analogy, Dershowitz cites the president's pardon power, exercisable at his sole discretion. Yet Dershowitz's argument proves too much: surely a pardon-for-cash scheme would be either indictable or impeachable or both.
      In the most recent full rehearsal of the arguments, a rising legal academic has given his thumbs-up to a possible indictment in a post on the Trump-watching blog Take Care. Writing in advance of Comey's testimony to the Senate Intelligence Committee, Andrew Manuel Crespo, an assistant professor at Harvard Law School, found no bar to charging Trump with obstruction of justice. If special counsel Robert Mueller were to seek an indictment, Crespo wrote, "he would be acting well within the law, the norms of the profession, and the reasonable bounds of the discretion with which he has been entrusted."
      Perhaps, but a prosecutor might want a stronger case before testing those bounds. For now, the rule of law that Trump so threatens may depend not on Congress or the courts, but on "we the people" ourselves. "A republic if you can keep it," Benjamin Franklin cautioned after helping write the Constitution in the fateful summer of 1787.  "We've lost our way," ACS panelist Siegel remarked, "and we need to find our way back." The path is by no means clear.

Saturday, June 3, 2017

In Bias Cases, Gorsuch Subpar for the Course

      Senate Democrats and their progressive advocacy group allies tried but failed to block Neil Gorsuch's confirmation as Supreme Court justices by accusing him of being insensitive to workers' and consumers' rights. They used as exhibit number one the case of the frozen trucker fired for leaving his rig behind rather than wait for emergency help in subzero weather. They also faulted several of Gorsuch's decisions or dissents that they said reflected insensitivity to racial or other forms of discrimination.
      Now, two law professors well versed in employment law cases are showing that Gorsuch's record, as depicted by his opponents, is just about par for the course. In their new book Unequal: How America's Courts Undermine Discrimination Laws, authors Sandra F. Sperino and Suja A. Thomas document the ways that federal judges have dashed the hopes embodied in federal civil rights laws for equal opportunity in U.S. workplaces nationwide.
      Starting from laws that have many built-in advantages for employers, judges have made it that much harder for workers complaining of discrimination by a set of procedural hurdles and substantive rulings narrowing the definition of discrimination. "Courts have limited the scope of discrimination law by refusing to call lots of conduct discrimination," Sperino and Thomas write.
      Gorsuch's record, as depicted by the progressive Alliance for Justice, fits this description like a glove. From Gorsuch's 10 years on the Tenth U.S. Circuit Court of Appeals, the group pulled half a dozen in which Gorsuch voted usually in the majority and once in dissent against job discrimination claims under Title VII of the Civil Rights Act.
      In separate sex discrimination cases, for example, Gorsuch voted once in the majority and once in dissent to keep the plaintiff's claims from juries. In two others, Gorsuch voted against giving plaintiffs the benefit of subsequent favorable Supreme Court precedents with the majority. Three of the cases included retaliatory discharge claims: complaints that the Supreme Court has said are important to enforcing anti-discrimination laws but that Gorsuch dismissed in each of the cases.
      The record "demonstrates a repeated pattern of siding with corporations over individuals trying to assert their rights under anti-discrimination laws," the Alliance for Justice report stated. "Judge Gorsuch routinely refuses to allow cases to go to a jury even when there are material disputes of fact about the circumstances surrounding an adverse employment action."
      Sperino, a law professor at the University of Cincinnati, and Suja, a law professor at the University of Illinois, have found a bookful of cases like these going back over decades. In side-by-side summaries, for example, they recount two sexual harassment claims that judges blocked from going to juries, each of them backed up with a dozen or so particulars. In one, an appellate court upheld the dismissal of the female employee's case because her male supervisor touched her only three times. In the other, the trial judge rejected a male employee's claim against his male supervisor even though the supervisor made two or three sexual remarks per day over a 10-day period.
      Race-related claims are also susceptible to dismissals even in the face of seemingly blatant evidence of racism. An appellate court threw out jury verdicts in favor of two African American employees with an opinion that dismissed supervisors' references to them as "boy" as "not probative of racial animus." Suja, it should be noted, is a strong defender of the jury system, as set out at length in her book published last year, The Missing American Jury.
      Sperino and Suja open the new book by noting that federal employment discrimination laws were not designed for plaintiffs as much as for employers. To start, Title VII requires a plaintiff to go first to the Equal Employment Opportunity Commission (EEOC) rather than straight to court. In addition, the law sets a very short 300-day statute of limitations for bringing a complaint — in contrast to the two-year deadline common for other personal injury suits. And the law sets limits on damages, unique to employment discrimination cases.
      A cobweb of court-created doctrines tilts the playing field further in employers' favors. Courts allow employers to explain racist or sexist comments as "stray remarks." A supervisor who hires an employee may be absolved of a later accusation of discrimination by the "same-actor inference." Some judges even reject discrimination claims if the employer can show an "honest belief" that the complained-of adverse action was not infected with prejudice.
      Sperino and Suja do not mention Gorsuch in their book nor do they name names of any of the judges they fault for undermining discrimination laws. They do note, however, that the federal judiciary is far less diverse than juries or the U.S. population at large. They cite a study that found that judges grant 70 percent of summary judgment motions filed by employers. Another found that plaintiffs' verdicts in discrimination cases are more likely to be reversed on appeal than verdicts in other kinds of civil cases.
      As Sperino and Suja tell the story, the Supreme Court has been less unfriendly to discrimination claims than the lower courts. In that case, Gorsuch's vote may not matter that much. Indeed, they close with a laundry list of semi-technical changes that Congress could enact to ensure courts give discrimination claims a full and fair hearing. In Trumpland, however, workers with discrimination claims are quite likely to remain forgotten.

Monday, May 29, 2017

At White House, Urgent Calls to Lawyer Up

      Trump was home alone, in the residence, tired of cable news and surfing around for one of those old movies that made America great. How the West Was Won: perfect. But then came one of those lawyer commercials. "If you have a phone, you have a lawyer."
      Then, it hit him: I have a phone! I need a lawyer! Sure, Trump said to himself, Don McGahn is White House counsel. He's a good man, but he keeps telling me what I should do instead of letting me do what I want to do. I'm calling Marc Kasowitz: he's been with me all these years, through the divorce, the bankruptcies, the Trump University fake lawsuit, on and on. Him, I can trust. Just like my friend Mike Flynn.
      Thus Kasowitz was brought in to head an outside legal team to help with the Russia investigations that are swirling ever more ominously around the White House. Not just the White House: now it's Jared too. Good son-in-law. Done nothing wrong. Fake news. But McGahn says he can't help. Bad precedent. White House counsel can't give away 'get out of jail free' cards to everybody.
      The Washington Post reports that Trump is looking at others to beef up the team: maybe Ted Olson, maybe Paul Clement. Surely, they understand that everyone's entitled to legal representation in this country. But already on the blogosphere some nigglers are suggesting that Olson and Clement have nothing to gain with this brief — and a lot to lose, like their reputations.
      Lawyering, it turns out, has been one of the Achilles' heels of this administration, now just past the 125-day mark. Yes, the Justice Department lawyers put up a good fight, but federal appeals courts appeared to have blocked the president's signature policy achievement of his first full week in office: Executive Order Protecting The Nation from Foreign Terrorist Entry Into The United States.
      The courts blocked the first version. Muslim ban, they said. "We all know what that means," Trump said as he signed the order. Apparently, yes, the so-called judges did.
      After the courts blocked the first version, Team Trump worked with the lawyers on a revised version. Significant tweaks. The new version exempted green-card holders —  lawful permanent residents, in legal speak. It also gave immigration officers discretion to waive the ban. And the lawyers added six paragraphs of "findings" to explain why these six countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen. Again, the nigglers. Why not Saudi Arabia, they asked, since that's where the 9/11 hijackers came from?
      Despite all that lawyering, the courts still aren't buying it. The old saying is right: You can put a dress on a pig, but it's still a pig. The Fourth U.S. Circuit Court of Appeals, sitting en banc in Richmond, Va., came out with a 10-3 decision blocking Executive Order 2.0. More than 200 pages of opinions less than three weeks after oral arguments. The majority stopped just short of calling the president a liar.
      Trump takes note, of course, that the 10 judges who ruled against him are all Democratic appointees and the three on his side are Republicans. He thinks back to something Gorsuch said. "There are no Republican judges; there are no Democratic judges." Well, Trump thinks, he was half right. There are no Democratic judges for the next four years: that's for damn sure.
      Sessions is quick out of the box with one of those boilerplate responses: disagree strongly, you betcha. Will appeal, of course. At the Supreme Court, Gorsuch could be the fifth vote that the White House needs to reverse the ruling.
      Justice Neil Gorsuch is exhibit number one for Trump's accomplishments at the 125-day mark. Oddly, however, Team Trump had very little to do with it. Supreme Court vetting was turned over to the Federalist Society back in the campaign. Twenty candidates on the list: all of them Republican judges, naturally. All good candidates, but Gorsuch was head and shoulders above any of them. Look at those credentials: better even than Garland's, he muses.
      Once Gorsuch was nominated, it was McConnell's job to get him through. And he did: the Democrats came close to blocking him, but close doesn't count except in horseshoes. The Democrats decided to dare the Republicans to change the Senate rules to get him confirmed. Republicans took up the dare. Republicans won't need 60 votes next time either.
      Lawyering, of course, was never Trump's forte. Dealmaking was: The Art of the Deal was a best-seller: it was yuge. As for dealmaking, however, nothing yet to crow about. "Repeal and replace Obamacare" is stuck in the Senate; Ryan got that through the House, but McConnell says he doesn't know where he gets 50 votes, much less 60. As for the tax reform bill: not yet written. Why can't they just pass my talking points, Trump asks himself. This place really is a swamp.
      And the wall? Now Trump frets that he's being told some of it will be on private property. That means eminent domain lawsuits. They think that scares me, he says to himself. Real estate litigation is right up my alley, he assures himself. Just hire some more lawyers.

Saturday, May 20, 2017

As White House Counsel, McGahn Seen Failing in Role

      Rod Rosenstein took a major hit to his previously unblemished reputation by lending support as deputy attorney general to President Trump's decision to fire FBI director James Comey. Now, a lawyer who works right outside Trump's office is similarly taking hits to his admittedly somewhat checkered reputation. Don McGahn, Trump's pick to be his White House counsel, is now being blamed for what a wide range of legal observers are calling the ethical and legal disarray in the Trump presidency.
      McGahn now serves in the same behind-the-scenes role that John Dean occupied in the Nixon White House and used to warn Nixon, in vain, about the "cancer" on his presidency. Like Dean before him, McGahn has a client with a tin ear as to ethics and conflicts issues. Even so, legal observers say McGahn has to bear responsibility for such seemingly avoidable missteps as the delayed firing of Michael Flynn as national security adviser and the clumsy explanations for Comey's dismissal.
      "So much of what’s gone wrong in the Trump administration . . . might have been prevented by some good lawyering up front," reporter Jenna Greene wrote in a story for the on-line legal publication Litigation Daily with the provocative headline "The Case for Giving White House Counsel Don McGahn the Boot" [May 18]. "The president, no doubt, is an extraordinarily difficult client," Greene added, "but McGahn doesn’t seem willing or able to rein him in."
      McGahn came to the post as an expert on campaign finance and election law based in part on a combative five years as a Republican appointee to the Federal Election Commission (FEC). Back in private practice with the well-connected D.C. law firm Jones Day, McGahn gained entree into Trump's inner circle by becoming one of the first high-profile Washington lawyers to join the campaign. McGahn was credited with playing an important role in blocking efforts to block Trump from the ballot in New Hampshire's first-in-the-nation presidential primary early in 2016.
      As White House counsel, McGahn fits a Trumpian model of high-level appointments. For secretary of education, Trump picked Betsy DeVos, a sharp critic of public education as a leader of the school-choice movement. To head the Environmental Protection Agency, he named Scott Pruitt, an opponent of EPA policies as a former Oklahoma attorney general.
      At the FEC, McGahn had a reputation of being rude and abrasive to staff and even to fellow commissioners and worked single-mindedly to weaken or dismantle campaign finance restrictions. Ann Ravel, a Democratic appointee to the FEC after McGahn's term had ended, commented to Greene that she found McGahn's appointment as White House counsel "shocking." "His record indicates that he’s not particularly concerned about conflicts or ethics issues," Ravel told the reporter.
      As early as mid-February, Jack Goldsmith, who headed the Justice Department's Office of Legal Counsel during part of President George W. Bush's second term, was blaming McGahn for some of the White House problems. “The multiple ethics problems swirling around the White House are squarely McGahn’s responsibility,” Goldsmith, now a professor at Harvard Law School, wrote in a post for the middle-of-the-road legal blog Lawfare.
      Within the past week, the New York Times strengthened the critique by disclosing that McGahn was informed on Jan. 4 that Flynn, who was already functioning as Trump's national security adviser, was under an FBI investigation for his contacts with the Russians during the campaign and his work as a paid lobbyist for the Turkish government. Matthew Miller, a Justice Department spokesman in the Obama administration, responded critically to the information in an appearance on CNN. "If you were under an FBI investigation," he said of Obama administration personnel policies, "you couldn't get hired as a staff assistant, much less national security adviser."
      Once Flynn's role emerged into headlines, the White House used McGahn, just as it was to use Rosenstein later, to try to defend its actions--in this case, the failure to fire Flynn immediately after learning that Flynn had lied to Vice President Mike Pence about contacts with Russians. "The White House Counsel reviewed and determined that there is not a legal issue, but rather a trust issue," press secretary Sean Spicer said at a briefing.
      Accepting that account, Goldsmith wrote in his blog post that McGahn had failed in his role. "The legality of Flynn’s actions was not McGahn’s call to make," Goldsmith wrote, "and if McGahn were properly carrying out his responsibilities to ensure lawful action in the White House and to minimize law-related political damage to the President, he would have acted differently."
      Goldsmith's critique was noted in an unflattering profile by reporter Nancy Cook in Politico in February. “McGahn will embolden Trump,” an unnamed former FEC official told Cook. “He is not going to be a truth teller. He’s going to be an enabler.”
      Rosenstein, the former federal prosecutor and Justice Department official, salvaged some of his reputation last week by appointing former FBI director Robert Mueller as special counsel to investigate "Russiagate." McGahn's reputation is likely to suffer more hits as his role draws more attention. He can protect his reputation, if at all, only by showing more moral courage than he has to date in telling a wayward president to try to straighten up.