Sunday, September 25, 2016

Sentencing Reform Stalled by 'Dysfunction' in Congress

      After Republicans gained control of the Senate in the 2014 midterm elections, the conservative Federalist Society held a program the next week to explore the seemingly favorable impact on prospects for criminal justice reform at the federal level. The time seemed right for Congress to act given the unified GOP control in the House and the Senate and the broad bipartisan support for reducing federal sentences, especially for low-level drug offenses.
      Two years later, a lot of cold water has been thrown on the hopes for action in Congress thanks to what the New York Times’ veteran Washington correspondent Carl Hulse aptly called “a stunning display of dysfunction” on Capitol Hill [Sept. 17].The bipartisan support that extended from President Obama to House Speaker Paul Ryan and beyond has not been enough to get a floor vote in either chamber on an issue important to liberals for humanitarian reasons and to conservatives for fiscal economy.
      Supporters are not ready to throw in the towel, however, even after committee-approved bills have lain dormant in the Senate and the House for nearly a year. Holly Harris, a one-time Republican political operative who serves as executive director of the bipartisan U.S. Justice Action Network, says the obituaries for the legislation from Hulse and others are “premature.”
      Harris says she is “extremely confident” that the House will vote on legislation in the post-election, lame-duck session thanks to continuing support from Ryan. She is less certain about a vote in the Senate, but points to strong backing for the Senate bill from Texas’s senior Republican senator, John Cornyn. And she believes that one prominent opponent, Arkansas’ Tom Cotton, has actually helped the cause with his “nonsensical” statement that the United States has a problem with “underincarceration,” not overincarceration. “No one believes that,” she says.
      The program at the Federalist Society’s annual national lawyers convention two years ago bore the title, “Criminal Sentencing Reform: A Conversation Among Conservatives.” Presiding over the 90-minute discussion was no less a conservative than William Pryor, a federal appeals court judge appointed by President George W. Bush and a former attorney general in his reliably red home state of Alabama.
      Pryor opened by acknowledging that the cost of crime was “undoubtedly high” and then added, “But so too is the cost of incarceration.” Pryor had been calling for lowering federal prison sentences as far back as 2005. Back then, he said that Alabama faced a prison “crisis” because of a 600 percent increase in the inmate population over a 30-year period as the state’s population rose only 30 percent.
      Federal prisons have similarly grown in population and in costs over the past 30 years, according to data cited by card-carrying conservatives Timothy Head and Grover Norquist. In an article they wrote for NationalReview.com as members of the pro-reform Coalition for Public Safety, they quote statistics showing an eight-fold increase in federal prison population from 25,000 to 209,000 since the 1980s. The cost soared nearly seven-fold to $6.85 billion from just under $1 billion.
      In the early handicapping on sentencing reform, the Senate Judiciary Committee’s incoming chairman, Iowa’s Chuck Grassley, was seen as a likely opponent. Grassley in fact opposed the first effort at a bipartisan measure introduced in February 2015 by Utah Republican Mike Lee and Illinois Democrat Richard Durbin.
      By October, however, Grassley was persuaded to join with Durbin as original sponsor of a somewhat softened measure, S. 2123, that the Judiciary Committee approved on Oct. 22, 2015. Within a month, the House Judiciary Committee approved parallel legislation, H.R. 3713. Both bills generally would give federal judges discretion to reduce currently mandatory minimum sentences for low-level drug offenders and would reduce the mandatory sentence enhancements for crimes related to drugs or use of firearms.
      By February 2016, however, both bills were stuck in Capitol Hill limbo, calendared but not scheduled for floor votes. Bill Keller, the former New York Times editor who created The Marshall Project as a pro-reform site, wrote that “the vaunted bipartisan drive” behind sentencing reform was “not quite dead. But its pulse is faint.”
      Keller noted a then-recent poll that found 61 percent of respondents believe there are too many drug offenders in federal prisons and more than 75 percent oppose federal mandatory minimum sentences. “Voters are ready and wiling to reform the criminal justice system in ways that reduce the size and cost of the federal prison system, while improving outcomes,” the Mellman Group stated in summarizing the surveys.
      Harris views the presidential election as the culprit in stopping reform in its tracks. Both major parties included pro-sentencing reform planks in their platforms over the summer, she noted, but “there was no will to vote before the election.” In his article, Hulse casts part of the blame on the Republican presidential nominee Donald Trump for his recent campaign warnings, alarmist and false, about a supposed increase in crime rates in the country.
      The crime rate is in fact at historically low levels, but homicides are spiking in some major cities. Any influence from Trump, however, comes late in the game. Hulse is perhaps more on target in blaming Republicans who simply do not want to add to Obama’s legacy. Harris sees plenty of blame to go around. “If it doesn’t get done,” she says, “it will be a really big indictment of Washington.”

Sunday, September 18, 2016

On Confirming Judges, Senate Just Says No

      President Obama made history this month [Sept. 7] by nominating a Washington lawyer, Abid Riaz Qureshi, to be the first Muslim ever to have a lifetime appointment to a federal court. But Qureshi is unlikely to win Senate confirmation for the post this year — not just because of his religion but more fundamentally because of unprecedented obstructionism from Senate Republicans on nominations to the federal bench.
      The Senate’s Republican leadership is now in its seventh month of refusing to convene a hearing on Obama’s nomination of the veteran federal appeals court judge Merrick Garland to the current vacancy on the Supreme Court. But the GOP’s refusal to consider Obama’s judicial nominees goes much further than that.
      Even as unfilled judicial vacancies have more than doubled over the past two years, Senate Majority Leader Mitch McConnell has now all but shut down consideration of any of Obama’s judicial nominees. The 90 vacancies include 34 that are characterized as “judicial emergencies” based on caseload figures.
      The policy extends to noncontroversial judicial nominees for U.S. district courts even when supported by home-state Republican senators, according to Glenn Sugameli, who has been tracking federal court nominations since 2001 on a website now called JudgingtheEnvironment.org. Sugameli, who now works as a staff attorney for Defenders of Wildlife, calls the obstruction “unprecedented, unjustifiable, and harmful to businesses and individuals for whom justice delayed is justice denied.”
      McConnell announced the policy of refusing to consider Obama’s Supreme Court nominee on the very day of Justice Antonin Scalia’s death [Feb. 13] and reaffirmed it after Obama chose Garland for the seat a month later [March 16]. “The American people should have a voice in the selection of their next Supreme Court justice,” McConnell said. Senate Republicans have stuck to the policy despite accurate criticism from Obama, Senate Democrats, and many court watchers that it has no basis in the Constitution or historical practice.
      Sheldon Goldman, a political scientist at the University of Massachusetts-Amherst and a longtime expert on judicial nominations and confirmations, agrees that the broader inaction on Obama nominees has no historical precedent. The record of the current Senate over the past two years is “the worst in American history in terms of obstruction and delay.”
      Admittedly, tit for tat has been the name of the game in judicial politics as far back as the 1980s with Republican Ronald Reagan in the White House and Democrats controlling the Senate for most of the time. President George W. Bush included John G. Roberts Jr. in his first batch of 11 nominees for federal appeals courts in May 2001, but Roberts won confirmation in 2003 only after Republicans gained control of the Senate. All of the others also eventually won confirmation except Miguel Estrada, a Washington lawyer, whose nomination was filibustered by Senate Democrats while in the minority.
      McConnell defends the Senate’s current record by noting that the Senate has confirmed a few more Obama judges, 329 in all, than it did for Bush in his eight years: 326. Sugameli says the comparison is misleading because of the larger number of vacancies in the Obama years.
      Curt Levey, a conservative veteran of the judicial wars as president of the Committee for Justice, agrees with McConnell. “The bottom line is the total number of confirmations,” he says even as he acknowledges that statistics can be “isolated to show whatever you want.” Levey adds that Republicans may be exacting revenge for the Democrats’ decision in the previous Congress while in the majority to rule out the use of the filibuster on judicial nominations except for the Supreme Court.
      Qureshi’s nomination with only five months left in Obama’s second term would have been problematic even under normal circumstances. Senators from the opposition party often try to slow down action on judicial confirmations in the final months of a president’s term.
      Born in Pakistan, Qureshi graduated with honors from Cornell University and Harvard Law School after coming to the United States with his family. He now heads the global pro bono committee of the international law firm Latham & Watkins. In announcing his nomination for the federal district court in the District of Columbia, the White House made no mention of Qureshi’s religion, but his background promptly prompted divergent reactions, including anti-Muslim rants on conservative web sites.
      Muslim advocacy groups applauded the nomination. Farhana Khera, executive director of Muslim Advocates, called Qureshi “an exceptional nominee.” Qureshi twice worked pro bono on civil rights cases for the group. Nan Aron, president of the liberal Alliance for Justice, cited the nomination as further evidence of Obama’s practice of making diversity a “centerpiece” of his judicial appointments.
      From the opposite perspective, conservative web sites criticized the nomination. In posting the story on Twitter, Breitbart News added this as a tweet: “Pack it up, folks. Fun country while it lasted.” Mad World News reported that Qureshi has “an extensive record of prejudicially defending Muslim rights” — whatever the adverb may mean — and accused him of unspecified “links” to the Council on American Islamic Relations, the Islamic Society of North America, and Saudi government officials.
      Meanwhile, Garland’s supporters rallied this month in front of the Supreme Court urging the Senate to “do its job.” Unfortunately for the short-staffed federal courts, Garland is only one of the victims of the Senate’s Republican leadership’s decision to turn deaf ears to the plea.

Monday, September 12, 2016

For LGBT Rights Advocates, Much Work Lies Ahead

      Thurgood Marshall was elated and optimistic after the Supreme Court outlawed racial segregation in public schools in the landmark Brown v. Board of Education decision in 1954. “I was so happy I was numb,” he recalled later to historian Richard Kluger. On the day of the decision, Marshall confidently predicted that racial segregation in schools would be eliminated within five years and that all forms of racial discrimination would be outlawed by 1963, the 100th anniversary of the Emancipation Proclamation.
      Marshall’s optimism proved to be unfounded. School desegregation stalled for nearly a decade and schools were becoming more racially separate by the time of his death in 1993. The three landmark civil rights acts outlawing racial and other forms of discrimination in employment, voting, and housing had not been enacted by 1963, but over the next five years instead.
      LGBT rights advocates celebrating the Supreme Court’s decision a year ago guaranteeing marriage equality for same-sex couples were similarly thrilled with the victory, but some tempered their optimism. The National Gay and Lesbian Chamber of Commerce called on the LGBT movement that day to “harness this momentum to secure greater equality, especially nondiscrimination protections for LGBT Americans.”
      The scattered resistance to same-sex marriage has faded, except for the continuing calls for a religious liberty exemption for public officials, businesses, or individuals to refuse to provide services for gay or lesbian weddings. It is still legal in roughly half the states for a private employer to fire or refuse to hire an individual on the basis of sexual orientation or gender identity.
      Transgender rights advocates have gained new visibility but only because of controversial moves in Houston, North Carolina, and Virginia aimed at forcing transgender individuals to use public bathrooms that correspond to their biological sex instead of their gender identity.
      The unfinished work for LGBT rights advocates was one of the topics as LGBT journalists gathered in Miami’s South Beach this past weekend for the annual convention of their national organization, NLGJA. “They say we’re in a post-marriage equality, post-don’t ask, don’t tell world,” longtime activist Cathy Renna said as she opened a panel discussion under the title “Putting the ‘Move’ in Movement: a.k.a. Life After Marriage.” “Are we really?” Renna asked rhetorically.
      The consensus of the panelists could be summed up in one word: No. “It gets harder now,” remarked Nadine Smith, co-founder and CEO of Equality Florida. “We’ve got a lot of work to do.”
      Marriage equality emerged as the LGBT rights movement’s primary goal only as the eventual ruling suddenly seemed attainable within the past few years, sooner than almost anyone had anticipated as realistic. Even today, some in the LGBT community minimize the importance of the Supreme Court decision. “Marriage was not on my radar,” Khafre Abif, a community organizer with the Southern AIDS Coalition, remarked at the panel. “This was far from what black gay folk wanted.”
      Abif hopes to repeal the laws that criminalize the knowing transmission of HIV. He notes that there are no comparable laws against transmitting genital herpes and warns that the HIV laws perversely deter sexually active individuals from getting tested so that they can learn their status and take needed precautions.
      The Supreme Court’s marriage ruling in Obergefell v. Hodges built on two earlier decisions. The 1996 decision in Romer v. Evans limited the ability of state or local governments to exclude LGBT individuals from civil rights protections. Seven years later, the court in Lawrence v. Texas (2003) invalidated the few remaining state laws that made gay sex a prosecutable crime even if they were rarely enforced.
      In the meantime, LGBT rights advocates had been urging Congress to approve a bill, the Employment Nondiscrimination Act, to protect gay and lesbian individuals from job discrimination nationwide. The goal briefly seemed attainable in the mid-1990s, but has been dead ever since Republicans gained control of the House of Representatives. “The Equality Act cannot win,” Dominic Holden, who covers LGBT issues for BuzzFeed News, remarked at the panel, using the bill’s current working title.
      LGBT rights advocates have scored a few gains the past few years thanks to executive branch decisions by the Obama administration — for example, the executive order in April 2015 prohibiting anti-LGBT discrimination by federal contractors. More recently, the U.S. Department of Education has told school boards nationwide that transgender pupils should be allowed to use restrooms and locker facilities corresponding to their gender identity rather than their birth sex.
      The power of the bathroom backlash was seen in November 2015 when Houston voters repealed an LGBT rights ordinance and again in March when North Carolina’s Republican-controlled legislature passed a law known as H.B. 2 to nullify Charlotte’s local LGBT rights ordinance. “Does the LGBT movement have a strategy for dealing with this question?” Holden asked. “So far, the answer is no.”
      The issue is now at the Supreme Court, which is considering whether to hear an appeal by a local school board in Virginia in a school bathroom case challenging the Obama administration policy (Gloucester County School Board. v. G.G.). A federal judge in Texas has meanwhile ruled the policy unlawful, but the administration is appealing.
      Holden is watching the transgender cases with what appears to be guarded optimism, but on the whole he is downbeat on events since the marriage decision. “The big, bold LGBT movement riding high after marriage equality has been getting stopped in its tracks,” he remarked. But so too it appeared in the first years after Brown. Still, as Martin Luther King Jr. remarked, the arc of the moral universe bends, eventually, toward justice.

Monday, September 5, 2016

Supreme Court Hobbles Toward Start of New Term

      The Supreme Court is hobbling toward the start of a new term in four weeks, with one seat still vacant and fewer cases than usual set up for argument and eventual decision. Now, there is evidence that the court is taking unusual steps to delay cases viewed as likely to produce inconclusive 4-4 deadlocks between the evenly balanced conservative and liberal blocs.
      The argument calendar for November, released last week [Sept. 1], omits three cases that had been accepted for review in mid-January. The court ordinarily schedules cases for arguments roughly in the order in which the justices granted certiorari. The three cases that did not show up on the November calendar were among five that had been postponed earlier. Two of those are on the October calendar, but the second postponements of the remaining three prompted SCOTUSblog’s Amy Howe to renew speculation about a deliberate decision to wait for confirmation of a tie-breaking ninth justice.
      The court had four cases during the last term that ended in 4-4 votes that affirmed lower court decisions without settling the legal issues posed for future cases, the most since Justice Anthony M. Kennedy joined the court more than halfway through the 1987-88 term. The rulings left in place by the deadlocks included two victories for liberals and two for conservatives — most notably, the 4-4 vote that blocked President Obama’s controversial immigration policy to shield parents of U.S. citizen children from possible deportation.
      No one on either side of the cases, nor court watchers in general, was satisfied with the tie votes. As football coaches have remarked in a different context, “A tie is like kissing your sister.”
      The prospect of tie votes remains as long as the seat left vacant by the death of Justice Antonin Scalia on Feb. 13 remains unfilled. President Obama’s nominee for the seat, veteran federal appeals court judge Merrick Garland, is still being denied a hearing by the Senate’s Republican leadership now almost six months after Obama announced his choice.
      Senate Majority Leader Mitch McConnell has been unmoved by the criticism that the refusal to grant a hearing to a Supreme Court nominee is unprecedented in the modern era of confirmation hearings dating from the hearing for Louis Brandeis in 1916. But there has been speculation that Republicans might relent and give Garland a hearing if Democrat Hillary Clinton emerges as the winner in the November presidential election.
      Senate Judiciary Committee Chairman Chuck Grassley brought new attention to that possibility last week [Aug. 29] when he told a town hall meeting in his home state of Iowa that he might agree to convene a hearing if favored by “a majority” of senators. “If we have the election, and there was a majority of the Senate changed their mind about doing it in the lame duck, as opposed to January 20,” Grassley said, according to a later-posted video of the event, “I don't feel that I could stand in the way of that. But I don't think I can promote that idea.”
      The possibility of a lame-duck session confirmation reflects speculation that Republicans might fear that a president Clinton would drop Garland and pick instead a more liberal nominee. As Slate’s Mark Joseph Stern aptly remarked, that rumored tactic would put a lie to the Republicans’ insistence since February that they want the American people to have a voice in the eventual selection. Even with a lame-duck session confirmation, however, Garland would have missed the October and November calendars and quite likely the December calendar as well.
      Meanwhile, the court has scheduled eight cases for argument in October, working around Columbus Day and two Jewish holidays, and now ten cases for argument in November. All of the cases on the November calendar were accepted for review in May or June, and the six days of arguments had two slots readily available for any of the cases granted in January.
      The three deferred-action cases include two on recognizable hot-button issues. In Trinity Lutheran Church v. Pauley, a church in Columbia, Mo., is challenging the state’s decision on Establishment Clause grounds to prevent it from participating in a program to help non-profits improve playground surfaces with recycled tire scraps. In the second case, Murr v. Wisconsin, a Wisconsin family is testing the so-called “regulatory takings” doctrine by challenging a decision by state authorities that prevents them from selling or developing lakefront properties. The third of the postponed cases, Microsoft Corp. v. Baker, is more obscure, but raises a significant issue about appeals in class action cases.
      The postponements put the lie to the Senate Republicans’ insistence that the court can get its work done quite well with eight instead of nine justices. The unfilled seat left important legal issues unresolved during the last term.
      Besides the four 4-4 decisions, the justices also appeared to have been equally divided in a fifth case: the challenge by religious nonprofits to the Obamacare requirement to include contraceptives in health plans for employees or students. The court skirted the impasse in Zubik v. Burwell with an 8-0 decision to send all the consolidated cases back to federal appeals courts in hopes that the plaintiffs and the government could reach a compromise that eluded the justices.
      Congress has been dysfunctional for much of the past two decades ever since Republicans gained majority control of the House of Representatives. But that is no excuse for the Senate Republicans’ decision to render the nation’s highest court partly dysfunctional as well.

Sunday, August 28, 2016

“Yellow-Dog” Arbitration Clauses Headed to High Court?

    Federal labor law makes it illegal for an employer to require a would-be employee to promise not to join a union if hired. These agreements, known as yellow-dog contracts, were a common weapon for anti-union employers in the late 19th and early 20th centuries, but Congress declared them illegal in 1932 in the Norris-LaGuardia Act. Today, they are an historical relic and the term is all but unused.
    The National Labor Relations Act (NLRA), enacted in 1935, fortifies the prohibition by specifying in section 7 that employees have the right “to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The act’s section 8 makes it an “unfair labor practice” for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights” guaranteed in section 7.
    The National Labor Relations Board (NLRB), the agency charged with enforcing the law, ruled in 2012 that the act’s protection for “concerted activities” also makes it an unfair labor practice for an employer to prevent employees from joining together in class actions against the employer. But many employers are now including in employment contracts clauses that require any disputes to be resolved through arbitration and only individually, not combined with other employees in class actions.
    Business groups are arguing strongly that the NLRB got it wrong because the Federal Arbitration Act (FAA), enacted in 1925, makes arbitration agreements enforceable and that law trumps the NLRA. Federal appeals courts have split on the issue, a split deepened by a ruling by the Ninth U.S. Circuit Court of Appeals last week [Aug. 22]. With five appeals courts now divided 3-2 on the question, an issue affecting blue- and white-collar workers alike nationwide seems all but certain to reach the Supreme Court, perhaps as early as the new term set to open in October.
    Congress enacted the FAA at the behest of business groups who saw arbitration as more efficient and less expensive than litigation for resolving commercial disputes but found courts reluctant to enforce pre-dispute arbitration agreements. The Supreme Court began in the 1980s to view the act as embodying a general federal policy favoring arbitration not only in arms-length arbitration clauses between companies but also in contracts imposed by companies on workers, consumers, investors, and other potential plaintiffs.
    The Roberts Court fortified the pro-arbitration tilt under a line of closely divided decisions written by the late justice Antonin Scalia that enforced class action waivers written into arbitration clauses. Writing for a five-justice majority in American Express Co. v. Italian Colors Restaurant (2013), Scalia blocked a California restaurant from joining with other merchants in an antitrust claim against the big credit card issuer. The restaurant argued, and the federal appeals court in New York agreed, that it could not afford to mount a major antitrust case on its own given a potential recovery of no more than $38,000. In an acerbic dissent, Justice Elena Kagan summarized the “nutshell version” of the ruling as, “Too darn bad.”
    Scalia’s death leaves the court evenly divided between the conservative and liberal blocs on whether to extend the pro-arbitration rulings or limit or even reverse the trend. Before Scalia’s death, labor groups might have been wary about taking this issue to the high court. Now, it is up to business interests to decide whether to appeal the Ninth Circuit’s decision or a ruling to the same effect by the Seventh Circuit in May.
    The Ninth Circuit’s decision, like the Seventh Circuit’s, is a Fair Labor Standards Act case charging the plaintiffs’ employer with failing to pay overtime. The NLRB’s initial decision in 2012 against enforcing class action waivers in employment agreements similarly came in an overtime suit against the national homebuilding company D.R. Horton. “Being required to proceed individually is no proper substitute for proceeding together,” the NLRB majority wrote in the decision.
    On appeal, the Fifth U.S. Circuit Court of Appeals became the first of what are now three appeals courts to reject the NLRB’s position and enforce the class action waivers imposed by employers on their workers. The Second and Eighth Circuits fell in line, but the Seventh Circuit created a split with its May 26 decision in Lewis v. Epic Systems Corp. agreeing with the NLRB’s stance.
    Writing for a 2-1 majority in the Ninth Circuit decision, Chief Judge Sidney Thomas emphasized that “concerted action” is “the basic tenet” of federal labor law. “The NLRA precludes contracts that foreclose the possibility of concerted work-related legal claims,” Thomas wrote in Morris v. Ernst & Young LLP. “An employer may not condition employment on the requirement that an employee sign such a contract.” Thomas, a Clinton appointee, was joined in the ruling by an Obama appointee, Andrew Hurwitz.
    In a dissent, Judge Sandra Segal Ikuta, a Bush43 appointee, accused the majority of ignoring “the thrust” of recent Supreme Court decisions. The ruling, she said, was “breathtaking in its scope and in its error.”
    The anti-union pledges of yesteryear came to be known as yellow-dog contracts when a United Mine Workers official wrote in 1921 that such an agreement “reduces to the level of a yellow dog any man that signs it.” The class action waivers of current day similarly force workers to forgo a right seemingly guaranteed by federal labor law. The future of those provisions may well turn on the future ninth justice, whoever he or she may be.

Monday, August 22, 2016

On Voting, North Carolina Case Is Test for Justices

      John Roberts has a way with words, and he is often at his best when he is direct and concise. The chief justice wrote for the court in May in giving a black Georgia death row inmate a chance for a new trial based on evidence that prosecutors excluded at least two would-be jurors on the basis of race. “Two peremptory strikes on the basis of race,” Roberts wrote, “are two more than the Constitution allows.”       Roberts and the other justices now have to decide how many racially discriminatory voting law changes are more than the federal Voting Rights Act allows, even if only on an interim basis pending a final decision by the Supreme Court itself.
      North Carolina is asking the court to stay —  that is, to put on hold — a decision by the Fourth U.S. Circuit Court of Appeals to block five interconnected changes in voting procedures enacted in 2013 by the state’s Republican-majority legislature and GOP governor. In a mostly unanimous decision, the three-judge appeals court panel found that the state had intentionally adopted changes to restrict voting procedures that black voters used more than white voters did.
      The appeals court issued its decision on July 29 and six days later rejected the state’s request to stay the decision and allow the challenged law to remain in effect through the November election. Now, the state is telling the justices that the appeals court decision is wrong: “unprecedented” in finding intentional discrimination solely on the basis of disparate impact.
      The state argued that the court will probably agree to hear the state’s appeal and that the law should remain in effect. “Forcing the state to change the status quo mere months before the presidential election will cause irreparable injury to the state and its residents,” the state’s lawyers wrote in the application for a stay filed last week [Aug. 22].
      To that argument, the appeals court said, in short, pish-posh, based on the state’s own statements at the earlier oral argument. In its order denying a stay, the appeals court noted that the state’s lawyers “assured us that it would be able to comply with any order we issued by late July.”
      The state told the judges that early voting could be held at the state election office in each county and that election officials could be instructed not to require the photo ID specified in the challenged law. The state also acknowledged that its computer system was equipped to handle same-day registration and out-of-precinct voting. “Because of these assurances,” the court wrote, “we are confident that North Carolina can conduct the 2016 election in compliance with our injunction.”
      The appeals court also had a different view about the potential injury from blocking the challenged law or allowing it to go into effect. “[T]he balance of equities heavily weighs against recalling the mandate or granting a stay,” the court wrote. “Voters disenfranchised by a law enacted with discriminatory intent suffer irreparable harm far greater than any potential harm to the State.” And the court viewed the relevant status quo differently than the state did. “Finally, we observe that our injunction merely returns North Carolina’s voting procedures to the status quo prevailing before the discriminatory law was enacted,” the court wrote.
      The plaintiffs can be expected to hammer these points in their response to the state’s application, due on Thursday [Aug. 25]. For Supreme Court handicappers, the easy prediction is a 4-4 split along conservative-liberal lines. A tie in this case would go to the plaintiffs: North Carolina needs five votes to get a stay. The one wild card could be the liberal justice Stephen G. Breyer, who somewhat surprisingly gave the conservatives a “courtesy” fifth vote earlier this month in staying the Fourth Circuit’s decision favoring a transgender Virginia high school student’s effort to use the bathroom corresponding to his gender identity.
      Breyer explained his decision in that case by noting that the four conservative justices had the votes necessary to grant review of the decision on the merits and that a stay would merely preserve the status quo until the court could decide the case. But election expert Rick Hasen, a law professor at the University of California-Irvine, doubts that Breyer would view an election law case the same way. “There’s no way to redo the election,” Hasen wrote on his invaluable Eletction Law Blog. “With irreparable injury like this, there’s no way Justice Breyer goes along.”
      For Roberts, the case tests his prevailing view in the decision in Shelby County v. Holder to eliminate the Voting Rights Act’s preclearance decision on the ground that things have changed in the South since the law was enacted in 1965. The recent spate of voter ID laws and other vote suppression laws provides an ironic confirmation of sorts: disenfranchising minority voters is now practiced not just in the South but in other states, such as the once-progressive Wisconsin. Still, Texas and North Carolina carried vote suppression further than any of the states to the north.
      Meanwhile, a top Republican official in North Carolina is advising fellow Republicans on local election boards to resist any changes pushed by Democrats. Dallas Woodhouse, the state GOP’s executive director, urged fellow Republicans to support “rules that are fair to our side” (emphasis added). With North Carolina possibly a critical state in the presidential election, the Supreme Court owes the state, and the nation, a decision that is fair not to one side, but to both.

Sunday, August 14, 2016

At Supreme Court, Jurors' Voices Silenced

     Twelve Virginians sat in a federal court jury box for six weeks in the late summer of 2014 and then voted unanimously to convict the state’s former governor and his wife of political corruption. Nineteen months later, eight Supreme Court justices heard lawyers for former governor Bob McDonnell argue that McDonnell had done nothing illegal when he accepted extravagant gifts, favors, and sweetheart loans from a businessman seeking the governor’s help for his company.
     On the eve of those arguments on April 29, three of the jurors reaffirmed their verdicts in interviews with a reporter for the Associated Press. “Politics as usual — that’s a lousy excuse,” juror Daniel R. Hottle told the AP’s Larry O’Dell. Two other jurors told O’Dell they stood by their verdicts. The other nine declined to be interviewed.
     Just as the jurors were unanimous, the eight justices were unanimous in voting to reverse McDonnell’s convictions. The idea of “politics as usual” that Hottle rejected turns out, in the court’s view, to be an essential part of American democracy. “The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns,” Chief Justice John G. Roberts Jr. wrote. A free lunch or campaign contribution, Roberts said, does not transform constituent service into illegal quid pro quo graft.
     Trial by jury is guaranteed in the Constitution in Article III, which establishes the federal judiciary, and in the Sixth and Seventh Amendments of the Bill of Rights. Yet the court’s decision in McDonnell v. United States is the latest evidence that for all the lip service given to the jury system, juries are an endangered species today in federal and state courts alike.
     Plea bargaining in criminal cases and settlements or arbitration in civil cases are the preferred way of doing business in courthouses all around the country today. Eliminating jury trials saves time, money, uncertainty, and emotional wear and tear. The Supreme Court bears some but not most of the blame for the trend. Yet the McDonnell case shows that the court has created and applied a body of law that relegates the jury to a second-fiddle role even in those few cases that actually go to trial.
     The court concluded that McDonnell’s role in setting up meetings or hosting events for Williams did not amount to “official acts” as defined in the federal anti-bribery law. The jury listened to the evidence, applied it to the law that the judge gave them, and came to a different conclusion than Roberts did later. But Roberts had a precedent to cite.
     Two decades earlier, a federal jury had convicted a California agricultural trade association under the same law for giving some $5,000 worth of gifts to the secretary of agriculture. The Supreme Court found no connection between the gifts and any “official acts.” Making “token gifts” to public officials, Justice Antonin Scalia wrote in Sun-Diamond Growers Association v. United States (1999), would produce a “peculiar result.”
     Two juries, two decades apart, rejected “pay for play” politics, but not the Supreme Court. These are not isolated cases. To the contrary, the court has been an active participant for decades in reducing the role and power of the jury in American law, as University of Illinois law professor Suja Thomas explains in her alarm-raising book The Missing American Jury. The court has adopted rules of criminal and civil procedure that give judges the power to take cases away from juries or to throw out jury verdicts based on the judges’ view of evidence.
     The court has blessed plea bargaining and left the process largely unregulated, shifting the power to define and punish crimes from juries to the executive branch. In civil cases, the Rehnquist and Roberts Courts have given businesses and employers free rein to divert legal disputes from the courts into arbitration: a largely secretive process with no role for lay jurors.
     The court has also neutered juries in civil suits against government employees, in particular police officers, through the expansive use of a legal doctrine known as “qualified immunity.” A police officer cannot be found liable for violating an individual’s rights, this doctrine holds, unless the right was firmly established beforehand. Under this doctrine, police officers accused of unlawful searches or excessive force are often spared trial or any verdicts thrown out afterward.
     Consider the somewhat different case that a wrongfully convicted defendant, John Thompson, brought against New Orleans’ famed district attorney Harry Connick Sr. for violating his rights. Connick’s prosecutors had failed to disclose “exculpatory evidence” as required under Supreme Court precedent. Thompson sued Connick, and a jury awarded him $14 million for his 14 years of wrongful imprisonment. But the Supreme Court threw out the verdict. The 5-4 majority in Connick v. Thompson (2011) disagreed with Connick’s juror-constituents in holding him responsible for the conceded rights violation.
     Jury trials may be more expensive than plea bargained or negotiated justice, but the Supreme Court in these cases shows that the neutering of the jury is not so much about efficiency as it is about power. As Professor Thomas points out, juries were created as the voice of the community, but jurors’ voices matter less and less these days. Thus, McDonnell juror Kathleen Carmody found the Supreme Court’s decision “very disappointing.” McDonnell was “absolutely guilty,” Carmody told a local television reporter. Thomas was disappointed too. The decision, she wrote in an op-ed for Law360, removed the jury as a check on government power, an “especially important role” in these times.